International Disaster Response Law
Unlike armed conflicts, natural disasters have no legally binding set of regulations to govern the actions of those involved in aid and recovery; a lapse that has the potential to result in inefficient delivery of aid, lack of accountability amongst humanitarian actors, and overall poor response to catastrophes. Humanitarian law applies when a natural disaster strikes during the course of an armed conflict; however, its coverage concerning humanitarian assistance is not applicable to other, non-conflict situations.
Given this protection gap, the International Federation of Red Cross / Red Crescent Societies (IFRC) is spearheading the push for a complete set of International Disaster Response Laws (IDRL). Recognizing the need for systematic guidelines regulating international involvement in disaster recovery, the IFRC began its IDRL Program in 2001. The Program conducted studies of international norms, surveys of common problems faced by humanitarian actors, and regional consultations. In November 2007, the IFRC presented the “Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance” (the “IDRL Guidelines”), unanimously adopted by all High Contracting Parties to the Geneva Conventions. The UN General Assembly adopted 3 resolutions at its 63rd session that encourage member states' compliance with the Guidelines, and has reiterated the need for such guidelines in several resolutions.1 In 2011, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the IFRC, and the Inter-Parliamentary Union launched the pilot version of their “Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance”, with the intention of launching a finalized version by the end of 2012. The Model Act is an example of what a national law relating to disaster recovery should look like, utilizing the standards set forth in the IDRL Guidelines. It is intended as a tool for states who wish to implement the IDRL guidelines and unsure of language to use in any new legislation to be passed.
The IDRL Guidelines are recommendations to governments on how to best structure their domestic laws relating to disaster management. They are not legally binding in the way that a treaty is, nor do they govern inter-state relations. Their function is to promote uniform legislation throughout countries as a means of eliminating the hurdles found in recent natural disaster responses, among them: barriers to entry of goods and people; legal recognition of organizations to operate; and coordination among organizations and governments.
The key principles of the IDRL Guidelines reflect those humanitarian principles of International Humanitarian Law (IHL): humanity, neutrality, and impartiality. The Guidelines call upon States to assist humanitarian actors through responsive legal structures adept at handling the influx of aid by adapting visa and entry requirements for personnel and goods and by providing them domestic legal status (the power to contract, etc.). Echoing both IHL and Human Rights Law, the Guidelines affirm that the State holds the primary responsibility for its citizens; however, if the government cannot meet those requirements, it should call upon aid from the international community.
In addition to the IFRC’s IDRL Guidelines, the United Nations Office for Disaster Risk Reduction (UNISDR) compiled the Hyogo Framework for Action (HFA) in 2005. The HFA is a 10-year plan outlining priorities and principles to foster coordination among governments, organizations, and humanitarian actors during disaster response. Prior to both these efforts was the creation of the legally binding Tampere Convention on Emergency Telecommunications in 1998. States Party to the Tampere Convention have agreed to “cooperate among themselves and with non-State entities and intergovernmental organizations, in accordance with the provisions of this Convention, to facilitate the use of telecommunication resources for disaster mitigation and relief”.2 The Convention has been signed by 60 countries and currently has 46 States party to it.
For natural disasters occurring during the course of an armed conflict, the drought affecting Somalia in 2011 for example, IHL will continue to regulate humanitarian assistance and access. Disasters occurring during an international armed conflict are subject to the fourth Geneva Convention and Additional Protocol I. Under article 38 of the fourth Geneva Convention, protected persons “shall be enabled to receive the individual or collective relief that may be sent to them”. The ICRC includes this provision as customary law in its study on customary IHL. This language becomes progressively stronger in articles 173 , 234 , and 595 of the fourth Geneva Convention and in articles 706 and 717 of Additional Protocol I. In a non-international armed conflict, there is no legal right to humanitarian access. Humanitarian organizations may offer their assistance and the language of article 18 of Additional Protocol II supports the State’s acceptance of that assistance; however, the caveat of sovereignty remains: all activities are “subject to the consent of the High Contracting Party concerned”.
Enhanced legal protection and regulation of disaster response will be critical in a future suffering from the effects of climate change. Natural disasters have increased substantially in recent years; hydrometeorological disasters have doubled since 1990, with around 400 disasters in 2000, 2005, and 2006. Additionally, there has been a substantial increase in the number and type of aid responding to these disasters: international organizations; local NGOs; military; private individuals; and small non-profit organizations. Countries adhering to the Guidelines, improving their domestic legislation and infrastructure, will be better able to facilitate fast and efficient recovery to an affected population within their borders.
1Including: A/RES/46/182 (1991); A/RES/57/150 (2003); A/RES/63/137 (2009); A/RES/63/139 (2009); A/RES/63/141 (2009)
2Tampere Convention on Emergency Telecommunications, 1998, Article 3 (1), available at: http://reliefweb.int/sites/reliefweb.int/files/resources/5F48E46576376BA....
3“The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.”
4“Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases…”
5“If whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal…”
6“The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party.”
7“Each Party in receipt of relief consignments shall, to the fullest extent practicable, assist the relief personnel referred to in paragraph 1 in carrying out their relief mission. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted.”
8“If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned”.
9IFRC / OCHA, IDRL – Introduction, 2011, available at: http://www.ifrc.org/docs/Appeals/11/MAA0000411ar.pdf