Recognising the limits of International Law in Disaster Risk Reduction (DRR) – why it is part of the problem, and only part of the solution. Dr Michael Eburn Associate Professor Visiting Scholar ANU College of Law Disaster and Development Network The Australian National University Northumbria University CANBERRA NEWCASTLE-UPON-TYNE

Historically, little (not no) interest by the international community in DRR 1927 Convention and Statute Establishing the International Relief Union (entered into force 27 December 1932). The IRU provided assistance following earthquakes in 1934 (India & Nepal) and 1935 (in what is now Pakistan). 1984 Draft Convention on Expediting the Delivery of Emergency Assistance was not adopted.

Since 2004 Massive increase in the number of books and academics working on international disaster law. Increase in international law instruments: Hyogo Framework for Action 2005-2015; IFRC’s Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2008); Sendai Framework for DRR 2015-2030; Framework Convention on Climate Change (2016); ILC’s Draft Articles on the Protection of Persons in the event of Disasters (2016).

What changed? 2004 Indian Ocean tsunami? Growth in size of the NGO sector leading to pressure on governments both pre- and post disaster? The increase in demands for international assistance and recognition that prevention is better (and cheaper) than cure?

NGOs, ‘civil society’ and academics… Have a more direct input into the creation of international law than they do domestic law. The ICJ is to consider ‘the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’ (Statute of the International Court of Justice, Art. 38). Greater ‘faith in and commitment to the promise of international law’? (Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, 2007, p. 12).

Does international law really help? International law works best when state interests coincide –areas such as ‘… diplomatic privileges, territorial jurisdiction, extradition, wide fields of maritime law, arbitral procedure, and so forth’. ‘Where there is neither community of interests nor balance of power, there is no international law’. Hans J. Morgenthau, ‘Positivism, Functionalism, and International Law’ (1940) 34(2)The American Journal of International Law 260-284.

Where does DRR/IDR sit? ‘With natural disasters, the interests of both the victim and assisting states converge on maintaining as much sovereignty as possible – a convergence that does not stimulate the robust development of international law.’ David Fidler, ‘Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law?’ (2005) 6(2) Melbourne Journal of International Law 458-473.

In IDL sovereignty is the driving force UNGA Resolution 46/182 on Strengthening of the coordination of humanitarian emergency assistance of the United Nations “The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations.”

Sendai Doesn’t mention sovereignty but does say ‘Each State has the primary responsibility to prevent and reduce disaster risk…’ [19(a) Guiding Principles]

The International Law Commission ‘… reaffirms the primary role of the affected State in the provision of disaster relief assistance, which is a core element of the draft articles. The reference to sovereignty, and the primary role of the affected State, provides the background against which the entire set of draft articles is to be understood.’ (Draft Articles on the Protection of Persons in the Event of Disasters, Commentary, Preamble [6] (2016)).

International Disaster RESPONSE law Responsibility for management of disaster response is vested with the government of the affected state (UN Resolution 46/182). Other states can only provide assistance with the consent of the affected states. Do states really refuse assistance? Or is the bigger problem managing assistance from non-state actors?

NGOs Are not the subjects of international law. NGOs arise out of necessity Tasmania Fires Can we Help; Blaze Aid; Christchurch Student Army.

The Red Cross/Red Crescent IDRL project Moved away from an international law solution. Output: ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’. Identified problems with: Initiation and termination Goods and equipment Personnel Transport and movement Operations Quality and accountability Coordination Involvement of militaries and mixed situations of disaster and conflict

The ILC articles are more than a codification Art 8: Duty to cooperate; Article 11: Duty to reduce the risk of disasters; Article 13: Duty of the affected State to seek external assistance. One of the functions of the ILC is to suggest “progressive development of international law” which means “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States.” Some of the ILC articles are a codification but some represent a step forward or development of the law. The commentary suggests that this is not new “The duty to cooperate is well established as a principle of international law and can be found in numerous international instruments” but if this is just a reflection of that duty it adds nothing. It if adds something it is the ‘duty to cooperate’ with respect to disaster relief and to cooperate with ‘competent intergovernmental organizations’ the Red Cross/Red Crescent movement and ‘relevant non-governmental organizations’. With respect to the duty to reduce the risk of disasters the commentary says ‘An important legal foundation for draft article 11 [16] is the widespread practice of States reflecting their commitment to reduce the risk of disasters…’ but that decision to enter agrements or sign up to non-binding declarations such as the Sendai Declaration suggests such a duty is not a existing part of international law. As for the duty to seek assistance, this “was supported by a majority of the members of the Commission, but opposed by others, since in the view of those members, international law as it currently stands does not recognize such a duty…”

The obligations are vague “… States shall, as appropriate, cooperate among themselves …” “Each State shall reduce the risk of disasters by taking the necessary and appropriate measures…” If “… a disaster exceeds its national response capacity, the affected State has the duty to seek assistance … as appropriate.” “Consent to external assistance shall not be withheld arbitrarily.” Even if they are statements of legally binding obligations, they are so vague as to be of little value. With respect to Art 11 the commentary says ‘While each State bears the same obligation, the question of different levels of capacity among States to implement the obligation is dealt with under the phrase “by taking the necessary and appropriate measures”.” And what is the implication if disaster strikes? Commentary on Art 14 says: “… the Commission considers that withholding consent to external assistance is not arbitrary where a State is capable of providing, and willing to provide, an adequate and effective response to a disaster on the basis of its own resources. Second, withholding consent to assistance from one external source is not arbitrary if an affected State has accepted appropriate and sufficient assistance from elsewhere. Third, the withholding of consent is not arbitrary if the relevant offer is not extended in accordance with the present draft articles. In particular, draft article 7 [6] establishes that humanitarian assistance must take place in accordance with principles of humanity, neutrality and impartiality, and on the basis of non-discrimination…” But who’s to decide?

Relying on Law Can lead to a focus on compliance and an expectation that everyone will follow the law or the plan. People don’t and neither do disasters. “no plan survives contact with the enemy”

What’s to happen with the draft articles? They become a non-binding UN resolution or A treaty. There has been no indication that the international community wants a treaty or wants to enter legally binding agreements to accept or offer aid.

What about DRR? Consider Sendai… States are to ‘take into consideration’, act ‘as appropriate’, with regard to ‘national laws’ and ‘as mutually agreed’

Priority 3: Investing in disaster risk reduction for resilience 29. Public and private investment in disaster risk prevention and reduction through structural and non-structural measures are essential to enhance the economic, social, health and cultural resilience of persons, communities, countries and their assets, as well as the environment. These can be drivers of innovation, growth and job creation. Such measures are cost-effective and instrumental to save lives, prevent and reduce losses and ensure effective recovery and rehabilitation… 31. To achieve this, it is important:… (e) To enhance cooperation between health authorities and other relevant stakeholders to strengthen country capacity for disaster risk management for health, the implementation of the International Health Regulations (2005) and the building of resilient health systems;

So what… Declarations like Sendai are helpful. Point in a common direction and policy goals. May be a tool for diplomacy. Encourage compliance as states want to be seen to be good citizens.

But International law is unlike domestic law. It does not contain (usually) explicit requirements. Enforcement depends on political will and ‘disapproval’. Declarations like Sendai – soft law – don’t commit any state to anything in particular.

Countries Appear unwilling to accept universal binding obligations with respect to DRR and disaster relief. International law remains weak – focused on ensuring the rights of states to make their own decision and avoiding commitments on other states to assist.

International law Is part of the problem – focus on preserving sovereignty. And only part of the solution – it gives a gentle push. It’s (generally) not binding on states, or non-state actors. The real solutions lie in domestic laws and regional arrangements.

Why is that conclusion important? Don’t let ‘faith in and commitment to the promise of international law’ be misplaced. International legal developments are good, but don’t expect too much from them.

Questions? Comments? Thank you for your attention. Dr Michael Eburn Australian National University, College of Law and Northumbria University, Disaster and Development Network E: michael.eburn@anu.edu.au E: michael.eburn@northumbria.ac.uk P: +61 2 6125 6424 (Australia) P: +44 737 621 6647 (UK)