In Search of International Disaster Law

Publication Date: 
Wednesday, July 19, 2017
Manoocher Deghati / IRIN

The pattern will be familiar to anyone working in international disaster response. In the immediate aftermath of a large-scale earthquake, hurricane or Tsunami, domestic responders are quickly overwhelmed, and offers of international aid begin pouring in. By filling gaps in local relief efforts, this international assistance can make a critical difference in the lives of disaster-affected people. Yet when aid is needed most, it can also get mired in bureaucratic red tape: foreign disaster relief workers face visa restrictions, delays and fees; relief goods and equipment get stuck in customs; foreign search and rescue dogs are held in quarantine. In other cases, the breakdown of governmental authority makes it hard to filter bad aid out from the good: (however well-meaning) private donors ship ill-suited goods or expired medications to the affected area; transportation bottlenecks delay incoming aid shipments; healthcare workers arrive with unrecognized foreign licenses to practice; unsolicited or unprepared volunteers become an additional drain on scarce local resources, with the potential for causing more harm than good.

As the number and variety of actors providing international disaster assistance has grown, regulatory challenges such as these are becoming all the more common, raising the question of how international legal frameworks can help to ease some of the frictions inherent in international aid efforts before, during and after disasters strike. What then, does international law have to offer disaster response?

Soft law for hard challenges

In light of the various legal impediments that can arise in international disaster response, there have long been efforts to develop international law in this area. Unlike international humanitarian law (IHL) for armed conflict, or international human rights law (IHRL), however, the status of international disaster law (IDL) as a distinct branch of international law remains a matter of debate. This is due in large part to the lack of a foundational treaty – something akin to IHL’s Geneva Conventions (1949), or IHRL’s International Covenants on Civil and Political Rights (1966) and Economic and Social Rights (1966). Indeed, states have appeared particularly reluctant to relinquish some sovereignty in this area through a comprehensive treaty. The result is that the international legal framework regulating disaster relief remains largely fragmented, scattered and piecemeal.

In an effort to fill some of these gaps through a universal treaty on disaster law, the International Law Commission (ILC) recently adopted Draft Articles on the Protection of Persons in the Event of Disasters, which have been submitted to the UN General Assembly for potential adoption by states. Given the current reluctance of states toward any new international law-making in general, however, the prospects of adoption appear uncertain at best. As Giulio Bartolini notes, efforts to develop a similar convention failed to reach consensus in the 1980s, and subsequent practice evolved in the direction of “universal treaties only addressing specific types of disasters or forms of assistance, regional instruments with different characters in terms of efficacy and structure […], an incoherent network of bilateral treaties […], and a vast array of soft-law instruments scarcely able to influence stakeholders.” For instance, specific provisions applicable in disaster situations have been included in a number of sectoral treaties, e.g. on civil aviation, health, maritime traffic, nuclear accidents, and telecommunication. Numerous bilateral and regional treaties on disaster prevention and response have also been adopted, e.g. in the North Sea, the Caribbean, the Black Sea, the Association of Southeast Asian Nations (ASEAN), and the European Union (EU), among others.

Overall, however, states have been reluctant to adopt a comprehensive treaty regulating disaster situations. So what are the sticking points?

What is a disaster?

One of the first challenges holding back the development of international disaster law is the lack of a common definition of what constitutes a disaster, and by extension, what situations would trigger the applications of special provisions. States have taken to answering this question in a variety of different ways in various national and international instruments, but commonly make reference to: natural or man-made events; causing severe impact or damage to human lives and property. Some definitions also include damage to the environment or cultural heritage, and some include armed conflict as a type of man-made disaster, while others do not. Additionally, some definitions require that disasters seriously disrupt the functioning of society, or exceed the affected community or state’s ability to cope. The ILC proposes the following definition of “disaster” in its Draft Articles:

a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society;

Given the variety of relevant legal instruments – including bilateral and regional agreements – this lack of a common definition of ‘disaster’ produces a degree of inconsistency and uncertainty as to whether a given situation triggers certain potentially applicable international agreements or not. The different thresholds for ‘disaster’ in different instruments means that some agreements may be triggered and others not, creating further confusion in the immediate onset of an emergency. This is the case even within regional instruments, such as the variety of EU regulations that offer somewhat differing definitions of disaster.

What are the responsibilities of states in the event of disaster?

Beyond definitions, perhaps the most significant point of contention regards the responsibility of states in the event of disasters. For instance, what responsibilities do states have to prevent and mitigate disasters in the first place? And when disasters do strike, what responsibilities do states have to protect persons in the event of disasters (as the title of the ILC Draft Articles highlights)? If domestic response capacity is overwhelmed, do states have an obligation to request international assistance, or to facilitate its effective arrival? Do other states (or the international community at large) have an obligation to provide such assistance?

In terms of disaster risk reduction, a variety of international agreements and soft law instruments have sought to clarify and expand the obligations of states to reduce the risk of foreseeable disasters, especially through an emerging convergence between environmental law and natural disasters. This includes reference to disaster risks in measures to prevent or mitigate environmental degradation or climate change, such as the binding Paris Agreement, and the non-binding Sendai Framework for Disaster Risk Reduction, and the UN Sustainable Development Goals (SDGs).

While many of these instruments direct states to develop domestic measures to reduce disaster risks and improve disaster response and recovery, they provide much less guidance on how. To address this gap, the International Federation of Red Cross and Red Crescent Societies (IFRC) and National Red Cross and Red Crescent Societies, amongst others, have created tools to help states develop their domestic legal frameworks – including disaster management laws and disaster risk reduction measures – and to promote international standards. For instance, the 2007 Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (“IDRL Guidelines”) provide recommendations to governments for disaster laws and plans, as well as minimum standards for humanitarian assistance.

Protection of persons in the event of disaster

With regard to state obligations to protect persons in the event of disaster, international human rights law serves as a key source of individual rights and state responsibilities. While few IHRL instruments make explicit reference to disasters (with some exceptions), a number of human rights are relevant to protection in disaster situations. According to the ILC:

Examples of the rights that are pertinent in the event of a disaster include the right to life, the right to food, the right to health and medical services, the right to the supply of water, the right to adequate housing, clothing and sanitation, and the right not to be discriminated against.

Notably, however, most human rights – with the exception of freedom from torture or slavery, for instance – are subject to restrictions in the public interest, or in the interest of protecting the rights of others. In disaster settings, then, states may reasonably limit the enjoyment of certain human rights in the interest of public order, safety or health. Under many human rights instruments, states may also formally “derogate” (i.e. deviate) from their obligations. As set out in the ICCPR, for instance:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties […] may take measures derogating from their obligations […] to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. [Art. 4(1)]

The question then, is whether a disaster may constitute a “public emergency which threatens the life of the nation”; and here too, states enjoy a wide margin of discretion. While several states – including Guatemala, Chile, Ecuador and Georgia – have made use of such derogation clauses in disaster situations, overall such declarations remain relatively rare.

Request and facilitation of international assistance

In cases when a disaster exceeds the capacity of the affected state to respond, the affected state may request international assistance, and foreign states (and international organizations) may offer such assistance. But what if a disaster affected state refuses international aid? The cases arose for example in Burma (Myanmar) after Cyclone Nargis in 2008, prompting widespread international criticism and legal debate.

Under existing international law, disaster response is primarily the responsibility of the affected state. Disaster affected states may request external assistance, and others may offer it. Neither requesting nor offering states are under strict legal obligation to do so, however, and offering states must respect the sovereignty and territorial integrity of affected states – bedrock principles of the international legal order. Nonetheless, a tension arises between respect for state sovereignty – implying the right to refuse international assistance – and the rights of disaster victims to assistance (including under international human rights norms or domestic law) – implying the obligation for states to accept international aid when they are unable to provide protection on their own.

At minimum, under some international agreements states have an obligation to notify other states that may be affected by the cross-border impacts of a disaster – an obligation arising in reaction to the lack of notification of the Chernobyl nuclear disaster. 

With regard to the protection of civilians from atrocity crimes such as genocide, war crimes, ethnic cleansing and crimes against humanity, the emerging concept of Responsibility to Protect (R2P) has sought to re-conceptualize sovereignty as not just a privilege of states, but a responsibility. This responsibility, in turn, may entail rights and obligations of international actors when affected states fail to protect. While R2P remains highly contentious, some have sought to apply similar principles to disaster settings.

While no strict obligation to request or accept international disaster assistance exists under international law, soft law has developed in the direction of such an emerging obligation. Under General Assembly Resolution 46/182 (1991), “Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory.” Reaffirming respect for the “sovereignty, territorial integrity and national unity of States,” however, the resolution continues: “humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.” The ILC’s Draft Articles proposes such an obligation, though again, these articles have yet to be adopted as law:

The affected State has the duty to ensure the protection of persons and provision of disaster relief assistance in its territory, or in territory under its jurisdiction or control. (Article 10(1))

To the extent that a disaster manifestly exceeds its national response capacity, the affected State has the duty to seek assistance from, as appropriate, other States, the United Nations, and other potential assisting actors (Article 11).

Generally, then, states retain the right to decline offers of international assistance; as an accepted principle of customary law, however, states may not “arbitrarily” withhold consent to assistance. This principle is found in various soft law instruments, including the 1998 UN Guiding Principles on Internal Displacement, which concern humanitarian assistance to internally displaced persons: “Consent […] shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance”(Principle 25.2). Under a 2003 resolution of the Institute of International Law, “Affected States are under the obligation not arbitrarily and unjustifiably to reject a bona fide offer exclusively intended to provide humanitarian assistance or to refuse access to the victims.” Article 13 of the ILC Draft Articles takes up this requirement as well: “The provision of external assistance requires the consent of the affected State. Consent to external assistance shall not be withheld arbitrarily.” In the context of armed conflict, the Security Council has reminded states of their obligations to grant humanitarian access, going so far in the case of Syria as to mandate humanitarian access without the consent of the state.

Overcoming barriers to aid

While the aforementioned developments have sought to clarify some of the big international legal questions regarding foreign disaster assistance, many gaps also remain in terms of the more mundane regulator barriers to aid highlighted at the outset. This is due in large part to the absence of a comprehensive treaty at the international level – a gap the ILC Draft Articles seek to fill – as well as the lack of adequate legal frameworks for disaster risk reduction, response, or recovery at the national level. The result, notes Isabelle Granger of the IFRC, is that “aid is slower, more expensive, less effective, and sometimes counter-productive.”

As the cases cited at the outset highlight, routine customs and immigration procedures of an affected state may become a significant barrier to international assistance in the event of disaster. In the absence of a universal IDL treaty covering customs or immigration issues, states continue to enjoy a high degree of discretion regarding the application of national regulations to foreign relief goods, equipment and personnel. This means that they may choose to expedite or waive customs or immigration procedures in the event of a disaster – as is commonly done for business or trade reasons – but they are not necessarily under an obligation to do so. As a result, decisions are often made on an ad hoc basis, making it difficult to plan operations in advance, causing delays or backlogs in the arrival of international relief, and making it more difficult to prevent the arrival inappropriate items, substandard relief, or corrupt practices.

Several international customs agreements have sought to address these challenges through the inclusion of provisions applicable to humanitarian relief, including on the temporary admission of goods and the simplification and harmonization of customs procedures. As with other aspects of disaster law, binding provisions regarding the facilitation international assistance are primarily found at the bilateral and regional level (especially within the European Union), or at the sectoral level. With regard to goods and equipment, various soft law instruments encourage states to facilitate and expedite international relief goods and personnel in the event of disasters, though there remains a significant need to clarify and develop these procedures before disasters strike and aid begins pouring in.

Conclusion

In the case of major natural disasters which overwhelm the capacity of local communities and authorities to respond, international assistance can make a difference between life and death. Foreign and international actors – whether civilian or military – can provide critical relief goods, personnel and equipment to support local efforts, especially in the immediate aftermath of a disaster. Yet as international relief activities become more professional and complex, they continue to face a variety of legal challenges and regulatory barriers to the provision of fast and effective emergency assistance. Moreover, the lack of cohesive IDL drives drives up the cost of humanitarian relief, and there is reason to believe that it may be associated with higher levels of excess morbidity and mortality – though further research would be needed to assess the actual costs of legal gaps or barriers for humanitarian operations and outcomes. In any case, from establishing a common understanding of what constitutes a “disaster” to defining what responsibilities states have to prevent and respond to disasters, to easing regulatory barriers to international assistance, international law has a key role to play in improving assistance and protection for disaster-affected persons around the globe.

In contrast to international humanitarian law (IHL) or international human rights law (IHRL), however, international disaster law (IDL) lacks a foundational treaty establishing binding rights and responsibilities of states in the event of disaster. This has led some to question the existence of IDL as a body of law in the first place, and others to push states to adopt such a treaty in the first place. In the meantime, a web of multilateral, regional and sectoral agreements, augmented by soft law instruments and principles, have sought to fill in some of the legal gaps which frequently arise in disaster response settings. With the frequency and severity of natural disasters – and the size and complexity of the international disaster response community – likely to continue to grow, these efforts at developing international law to ease barriers to effective response are more important than ever.

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