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Legislating to save more lives
by Nick Cater

Nick Cater reports on the progress of the international disaster response law project.

Disasters affect millions of people every year and cost billions of dollars, yet there exists no comprehensive set of international rules to ensure nothing hampers efforts to bring fast and effective aid in emergencies. Nor is there clarity about the rules which do exist: they are scattered through a large number of different instruments. Consequently, there is an urgent need to bring them together and put them into a format which is easy for everyone to understand.

Unlike conflict-related international humanitarian law (IHL), a flood or earthquake lacks a framework of international disaster response law (IDRL), with legal standards, procedures, rights and duties covering all aspects of a relief operation, from logistics and communications to medical assistance.

The gap slows relief, says Chris Lamb, head of the Federation's humanitarian advocacy department: "The most critical period of any post-disaster operation is the first 48 hours, whether looking at search and rescue or immediate treatment of victims, food and water delivery, or shelter. Time and time again this so-called '48-hour rule' proved critical, and one of the frequent obstacles in achieving instant access has been lack of a legal framework for disaster response, which may have caused unnecessary difficulties."

The international disaster response law project aims to explore this gap and ways it could be filled. It is led by the Federation and National Societies, with the involvement and support of states, United Nations (UN) agencies - especially the Office for the Coordination of Humanitarian Affairs - lawyers and academics. Project coordinator is Federation lawyer Victoria Bannon, who outlined its tasks and timetable:

  • Compile an inventory of relevant existing rules, from the "hard law" of conventions and treaties to the "soft law" of codes and guidelines.
  • Conduct field studies of a range of emergencies to assess any positive or negative links between those laws and disaster response performance.
  • Synthesize these two elements into a comprehensive report and recommendations so the December 2003 International Conference can decide on any future action.

Whatever the results of the International Conference, Lamb sees immediate benefits from the project's work to identify existing laws, raise awareness of obligations, highlight IDRL and its implications, and discuss disaster needs with states, the UN and intergovernmental agencies.

The legal study is being carried out by international lawyer Professor Horst Fischer, academic director of the Bochum institute for international law of peace and armed conflict at Germany's Ruhr University, who has worked on humanitarian issues for 15 years with the Movement, other international organizations and government ministries. Collating and analysing international treaties is under way; research on national laws is still to come. Professor Fischer says the issue is vital: "There has been hardly any research done in this field and there is a humanitarian need to do so." A framework of international law for response "would definitely help the disaster victims".

Many forms of law do contain elements that relate directly or indirectly to disaster response, but these are a patchwork of often isolated clauses scattered through legislation and regulation relating to environment, air and space, development, transport and more. Not all these rules are universally respected, few provide compliance mechanisms and some are too narrowly drawn to be of significant benefit, especially if any future IDRL needs to cover all aspects of natural and technological disasters, including risk reduction, preparedness, relief and post-disaster rehabilitation. Even when useful disaster laws do exist, they may not be well known outside capital cities, bringing local confusion when a crisis interrupts communications and lines of authority.

The legal study will also examine quality benchmarks, such as the Sphere standards and the Code of Conduct for the International Red Cross and Red Crescent Movement and non-governmental organizations in disaster relief, to see their implications for IDRL. Indeed, the IDRL project follows part of Sphere's path, which built on the Code of Conduct by examining laws and treaties - from the Universal Declaration of Human Rights to the Convention on the Rights of the Child - to establish its Humanitarian Charter and then develop its Minimum Standards in Disaster Response.

 

While the legal study continues, locations will soon be decided for field studies of several international disaster operations to analyse the relationship between laws and practice on the ground: do the rules - or gaps in the rules - help or hinder humanitarian agencies as they try to meet the needs of the vulnerable and deliver assistance to disaster survivors? Operational experience does suggest that an improved legal framework might well make a difference in disaster response, since problems include:

  • lengthy customs processes and paying duty on relief goods;
  • difficulties in obtaining over-flight or landing rights;
  • controls and fees for communications equipment;
  • restrictions on visas for international staff;
  • lack of recognition of foreign qualifications; and
  • quarantine for search-and-rescue animals.

Of course, IDRL will not be a one-way street or a panacea: relief organizations and staff must continue to respect local laws and abide by internationally agreed standards. No legal system will end the need for preparedness, training, dissemination and awareness building, while international relief cannot replace immediate action by trained and equipped national staff and local volunteers.

While the project is focused on the needs of those affected by disasters, this is a complex field raising many issues, from the near-philosophical - what happens to independence, neutrality or impartiality in a tightly regulated relief operation? - to the political and practical of standards, professionalism, accountability and demarcation: can IDRL cover population flows caused by drought or urbanization, balancing sovereignty and any "right to intervene", controversial questions about registering aid workers, relations with military forces that have an emergency role, the impact on the private sector, and how to define, legally, when a disaster begins and ends.

Amid such debates, it's clear that any IDRL system would apply only to natural and technological disasters and not those generated by conflicts, which are adequately covered by IHL. The IDRL project also complements, and does not replace, the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations or plans for an international urban search-and-rescue convention. The Tampere convention - which offers the Movement the same privileges as states - is a useful precedent, being based on operational standards and lowering regulatory barriers to emergency use of telecommunications.

 

The IDRL project aims to be inclusive, involving and informing all disaster "stakeholders", especially states, since only they can act if the project finds legal gaps it feels need filling. To help National Societies talk to their governments about IDRL, it will be raised at upcoming regional conferences for the Americas, Middle East and Mediterranean. International advocacy on IDRL has ranged from a UN General Assembly resolution to the project's web site at www.ifrc.org/disasters/idrl

The final report to the International Conference will combine the results of the legal and field studies to identify strengths, gaps and weaknesses in existing IDRL instruments, and make recommendations so states and National Societies together can determine the best course of action.

By then they will know, as Michael Hoffman, American Red Cross director of international humanitarian law and policy, wrote on IDRL in the World Disasters Report, that "bureaucratic obstacles can loom large as a multiplier of suffering. There are no universal rules that facilitate secure, effective international assistance, and many relief efforts have been hampered as a result".

Nick Cater
Nick Cater is an independent journalist and consultant on aid issues. A former co-editor of the World Disasters Report, he can be contacted at caterdisaster@yahoo.co.uk



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