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International
Disaster Relief: A growing regulatory dilemma
Address
by David Fisher, Senior Legal Research Officer, at the annual meeting
of the American Society of International Law, to the panel entitled
"Tsunamis, Hurricanes, Earthquakes and Asteroids: are we ready
for the next 100 years?, in Washington DC.
29
March 2007 |
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International disaster relief is something of a swashbuckler's
paradise. With a scattered and under-used international legal
regime and scant applicable law at the national level, it is
little wonder that this field has been called "the world's largest
unregulated industry [1].
Some states and humanitarian actors prefer it this way, hopeful
that a lack of formal rules will provide them with maximum flexibility
in the event of an emergency. Unfortunately, on the whole, this
flexibility comes at a substantial price in preventable delays,
expenses and administrative barriers to relief operations as
well as enormous headaches for receiving states concerning the
coordination and quality of the relief they receive.
While the international community has nevertheless managed to
save the lives and restore the dignity of many disaster-affected
people in the roughly 150 years since international humanitarian
relief became a systematic reality, the costs of the lack of
regulation are likely to be increasingly felt in the years to
come if nothing is done to correct it. In this presentation,
I will explain why I think this is so but also why there is
reason to be optimistic that action will be taken in the near
future.
Growth in Disasters
To begin on a somewhat cassandran note, I will recall that natural
disasters are on a steep rise worldwide. In the decade of the
1970s, there were 1,231 reported disasters [2]. That number
has risen in every subsequent decade and, from 2000-2006 alone,
it had reached 5,287. As a result of the effects of climate
change, the scientific community assures us that this rising
trend is likely to continue, with more of the extreme events,
such as hurricanes, floods, droughts and heat waves.
On the other hand, I am happy to report that the trend in mortality
from disasters is down. Deaths attributed to disasters fell
from approximately 1.7 million in the 1970s to a little over
741,000 in the 1990s.
As wonderful as this, however, it does not necessarily make
things easier from the point of view of humanitarian relief
operations. Dead people do not require relief; living people
who have lost their homes, property, communities and livelihoods
do. Their numbers are skyrocketing. In the 1970s, disasters
affected a little over 780 million people. In the 1990s, they
affected over 1.9 billion. From 2000-2006 alone, the figure
was 1.7 billion. That is a little less than one third of the
population of the entire planet.
Of course, the overwhelming majority of disasters are addressed
entirely by domestic actors, including governments and national
Red Cross and Red Crescent Societies. Still, these rising overall
figures can only mean more need for international assistance
as well. We have certainly seen this in our own work. In the
1970s, the International Federation of Red Cross and Red Crescent
Societies issued 191 appeals for international disaster relief
assistance. In the 1990s, that number increased to 595.
Thus, it is reasonable to assume that we will see increased
"business" for international disaster relief in the coming years.
Growth of the International Disaster Relief Community
At the same time, the size and diversity of the international
disaster relief community has been growing. At the turn of the
20th century, only the International Red Cross/Red Crescent
Movement, a handful of voluntary organizations and some interested
states regularly provided international relief in disaster situations
outstripping domestic capacities. After World War II, these
actors were joined by the United Nations and new non-governmental
organizations. Particularly in the last few decades, and with
the birth of the "CNN effect", the playing field has widened
considerably.
The most explosive growth has been in the NGO sector. More and
more, donor states are choosing to channel their disaster assistance
through international NGOs rather than acting bilaterally. Moreover,
the importance of private donations in international disaster
response - much of which goes to NGOs -- has also increased.
It is now possible for several hundred international NGOs to
respond to a single disaster, as occurred in Aceh after the
2004 tsunami.
We also see other players entering the field. Certain UN agencies,
national Red Cross and Red Crescent Societies, and states that
had previously not been particularly engaged in international
disaster relief activities are now getting involved. Militaries
and private companies are also increasingly keen on carving
out a role for themselves in relief operations and private individuals
are sending record amounts of direct relief or even showing
up personally at disaster sites.
Common Regulatory Problems
This growth and new diversity of the international relief community
is positive in many ways - generating new interest, funding,
and energy toward the assistance of persons in need. However,
it also magnifies regulatory challenges. Unfortunately, few
states have existing domestic law or policy with any level of
detail on handling international relief. As a result, relief
operations are beset with border-crossing administrative problems
that are greatly aggravated by the acute need for speed and
reduced capacity of the receiving state. I will mention just
a few examples.
Relief goods and supplies are frequently snarled in customs
or charged large duties or tariffs. For instance, in Indonesia,
over 4000 containers of relief items were still in customs custody
over a year after the 2004 tsunami, including food and medicines
that perished. After the 1999 earthquake in Turkey, some relief
goods awaiting customs clearance were abruptly nationalized
after a statutory deadline related to abandonment of goods in
customs was exceeded.
In significant part, these bottlenecks are related to the waves
of ad hoc relief that are sent with the best of intentions but
without a proper understanding of local needs. In every major
disaster of 2005, for example, mountains of unwanted used clothes
appeared around disaster areas. States are sometimes just as
guilty of "supply-driven assistance". For example, after the
tsunami in Indonesia, both the national authorities and the
WHO pleaded with foreign governments to stop sending unneeded
and expensive field hospitals, to little avail.
There is also frequently confusion on both sides as to what
rules to apply in a disaster setting. For example, after Hurricane
Katrina, the British army sent 500,000 "meals ready to eat"
to the US, pursuant to a list of needed items provided by the
US government. However, just as they were about to reach affected
persons in New Orleans the FDA realized that they contained
British beef, which had been banned due to fears of mad cow
disease.
Relief personnel also encounter problems with visas. Usually,
these problems do not occur upon initial entry, as affected
states tend to be liberal in either temporarily waiving visa
requirements or granting tourist visas. However, this temporary
status frequently expires in the midst of an operation. Thus,
relief personnel are sometimes required to repeatedly leave
and re-enter an affected country to renew their visas, at considerable
expense.
Another major set of issues is linked to the lack of domestic
legal status of foreign organizations, such as a humanitarian
NGO. Without a recognized status under national law, they sometimes
find that they cannot benefit from tax exemptions, sign contracts,
hire staff or open bank accounts. Taking up just the latter
of these problems, the alarming solutions that many find are
to travel with wads of cash or open accounts in the personal
names of staff members.
In the main, these problems occur due to the operation of every-day
laws in extraordinary settings. However, the situation is sometimes
even worse when all bureaucratic barriers are dropped. States
that have tried this approach have found themselves inundated
with unneeded goods and good-faith organizations lacking proper
training, resources or even the means to house and feed themselves
at a disaster site, not to mention bad faith abuse, for instance
by commercial actors seeking to import goods for sale under
the guise of relief.
The Existing International Legal Framework
Given the long tradition of international disaster assistance
and the obvious types of legal problems it can raise, one would
think that the international community would have sought to
create a centralized system of international regulation comparable
to the Geneva Conventions for armed conflict.
There was an attempt to do just that under the League of Nations
when a 1927 treaty created the International Relief Union, which
was meant to centralize both the funding and coordination of
international disaster relief activities. However, the Union
was never successful in raising necessary funds and foundered,
like other League initiatives, on the shoals of World War II.
Another attempt to develop a global treaty was made in the 1984,
but died in committee at the UN.
As a result, the current international legal framework for disaster
relief is rather scattered and incomplete, mainly characterized
by isolated provisions in multilateral treaties focused on other
sectors (such as on aviation, sea transport, and weapons control),
some regional treaties, a complex web of bilateral treaties
and "soft law" instruments.
There are some important treaties at the global level expressly
focused on disasters, but they tend to be limited either in
their thematic scope or geographic reach.
For example, the Convention on Assistance in the Event of a
Nuclear Accident or Radiological Emergency of 1986 has nearly
100 parties but only deals with one kind of disaster and does
not address non-state relief providers. Conversely, the Tampere
Convention on the Provision of Telecommunication Resources for
Disaster Mitigation and Relief Operations of 1998 has ground-breaking
provisions on legal facilities and even immunities for relief
personnel, including from the non-state sector, but only applies
to the telecommunications aspect of relief operations and only
has 35 parties.
Some of the most significant international instruments in this
area are non-binding. These include documents focused on the
quality of relief developed by the humanitarian community itself,
such as the Code of Conduct of the Red Cross and Red Crescent
Movement and NGOS in Disaster Relief of 1994 and the Sphere
Charter and Minimum Standards in Disaster Response as updated
in 2004. While widely disseminated and used, the lack of any
mechanisms for compliance limits the potential for these documents
to deter the abuses that end up souring the image of the entire
sector.
Other potentially very helpful soft law instruments, such as
the Measures to Expedite International Relief adopted by the
UN General Assembly in 1977, have been mainly forgotten.
Prospects for the Future
There are signs that states are feeling the need for stronger
international norms and for better implementation of those that
already exist. In the aftermath of the tsunami, member states
of ASEAN adopted a new regional treaty responsive to many common
legal problems. NATO members recently adopted a new MOU on facilitation
procedures for civil relief actions.
In 2005, the United Nations began a process of humanitarian
reform to improve coordination and cooperation mechanisms for
humanitarian actors. Also in 2005, the Hyogo Framework for Action
was adopted by over 160 states, emphasizing the importance of
legislation for disaster risk reduction and preparedness for
relief.
Moreover, last year, with the apparent approval of the UN's
Sixth Committee, the International Law Commission placed this
issue on its long-term calendar of projects.
For its part, the International Federation has been consulting
widely with states, humanitarian actors and legal experts on
these issues, including through formal regional conferences
over the past year. We hear increasing interest in addressing
technical barriers and finding better ways to come to grips
with the trends I mentioned earlier.
Through this consultation process, the International Federation
has begun developing a set of non-binding guidelines on domestic
regulation and facilitation of international disaster assistance
compiling the currently scattered international norms.
The guidelines will seek to encourage states to develop rules
and procedures in such areas as customs, visas, and temporary
registration of foreign humanitarian organizations before a
disaster strikes, and to ensure a workable balance between easing
access and ensuring coordination and quality.
Our hope is to present the guidelines for adoption by states
and the components of our movement at the 30th International
Conference of the Red Cross and Red Crescent in November 2007.
There is thus good reason, despite the chequered history, to
be optimistic that international norms can play a significant
role in solving common problems of international disaster relief
in the future.
The active interest of the legal academy could be a great help
in reaching this goal and the International Federation would
therefore invite ASIL members to engage with us in discussing
this neglected area of international law.
_________________
ENDNOTES
[1] International Federation of Red Cross and Red Crescent Societies,
World Disasters Report 2005 : Forus on Information in Disasters
(2005), at 93.
[2] All statistics cited here are derived from the "EM-DAT:
The OFDA/CRED International Disaster Database,” Université
Catholique de Louvain, available at www.em-dat.net.
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