Overview of the international legal framework It is my pleasure to start off the first presentation … I am a bit less enthusiastic about entertaining you on … So will try to remedy this by considering my presentaiton as a miniskirt Katrien Beeckman, Ph.D., IDRL Advocacy & Resource Mobilisation Senior Officer

No comprehensive legal regime:International humanitarian assistance Global Western dominated Regional Self reliance non-western at regional level and national level Bilateral Soft Sectoral We will briefly look together at the global, regional and bilateral levels. Starting from the basic finding that the IDRL international framework is not a coherent, homogeneous and comprehensive framework But rather made up of diverse, heterogeneous and disparate legal instruments So IDRL significantly different from IHL which is a clear framework (sources, content) this is an emerging, young branch of International law

Looking at the global level, let us start by quickly explaining the structure of international law For the lawyers this will be rather basic, but we are dealing with a bridging area which is on the dividing line between law and operations, disaster management. The whole challenge is thus to get out of the ivory tower of our own discipline and to communicate thus the essence of law in understandable terms so that it can be of practical use for operational people, who make the difference on the ground. Binding law, obligatory to comply with them, non-compliance leads to state responsibility. Written and oral (not examined here). Soft law : devoid of legal binding force, merely provide guidance and arguments for international humanitarian actors to plead their case. So its practical use and impact depends on goodwill and persuasion of both providing and receiving actors.

International Relief Union 1927 Attempt to create one central agency for international disaster response: Both operational and coordination tasks, But did never work because of a lack of funding, at the time of League of Nations states were unwilling to put all their money into one agency. Died a slow death, finished in WWII.

1984 Draft Convention Issues covered: Actors covered: Visas Customs Transport Quality Liability Actors covered: States IOs NGOs Convention on Expediting the delivery of emergency assistance (issued by the Office of the UN Disaster Relief Coordinator) Flaws: All actors on an equal footing (NGOs same treatment as States) No linkage between granting facilities and assurance of quality or accountability (in case of problems, receiving State was liable) No strong coordination mechanisms Not enough political momentum But GA did not adopt it.

Global Hard Law: mainly sector specific Convention on Oil Pollution (1990) Kyoto Convention (1973) existing multilateral treaties, have a limited scope as they are sector specific. These treaties in various fields of international law range from maritime, customs, to environmental law. Examples are: the 1946 &1947 Conventions on UN and Specialised Agencies Privileges and Immunities, the 1973 Kyoto International Convention on the Simplification and Harmonisation of Customs Procedures, amended by protocol in 1999 (simplified documentation requirements/ more flexible processing procedures), or Istanbul Convention on temporary admission (also annex on animals and food) the 2004 Chicago Convention on Air Traffic and the 1998 Tampere Convention on the Provision of Telecommunication Resources, entered into force in 2005 States retain full control whether or not to request or accept telecom assistance. However, after acceptance : agree to reduce regulatory barriers to entry/use of telec) the waiver of taxes, duties and charges for the import of equipment, the granting of privileges, immunities and facilities to assisting personnel, (quaified immunity to criminal and civil process, taxation and seizure). which in the Tampere Convention remarkably includes NGOs. central role for UN ERC to coordinate assistance provided under conv But has suffered from limited recognition and effective application in the field. Tampere Convention (1998) Convention on Maritime Traffic (1965) Nuclear Accident Convention (1986) Conventions on UN Privileges and Immunities (1946 & 1947) Chicago Convention, Annex 9 (2004) Framework Convention on Civil Defense (2000) Int. Health Regs (2005)

Global Soft Law Resolutions Examples: 1977 Resolution on Measures to Expedite International Relief, adopted both at IC & ECOSOC, encourages states to implement a comprehensive list of logistics-related recommendations, ranging from standardised forms to accompany relief supplies to facilitate import, to labelling, over flight and landing rights for relief aircraft, and waiver of transit, entry and exit visas for relief personnel. (explained by Dr. Puji Pujiono from OCHA) UN General Assembly Resolution 46/182 of 1991 on Strengthening of the coordination of emergency humanitarian assistance of the United Nations, contains guiding principles bearing mainly on facilitation issues, coordination within the UN, and underline the requirement of providing assistance in accordance with the principles of humanity, neutrality and impartiality. It also underlines the sovereignty of the affected state, in the sense that international assistance implies its consent and is to take place in principle on the basis of an appeal. UN General Assembly Resolution 57/150 of 2002 on Strengthening the effectiveness and coordination of international urban search and rescue assistance : requests states to facilitate the work of international search and rescue teams through the simplification or reduction of customs and administrative procedures. The 2005 Hyogo Framework for Action on Disaster Reduction, adopted in Kobe, Japan, also contains provisions emphasising the need for legal preparedness. Several soft law instruments seek to regulate the quality of international response and pertain to humanitarian accountability vis-à-vis beneficiaries and donor governments. The 1994 Code of Conduct for the International RC/RCM and NGOs in Disaster Relief. It was the first to clearly spell out that international aid was unacceptable if it did not abide by universal basic standards, such as : aid is given regardless of the race, creed or nationality of the recipients prioritised on the basis of objective need alone, aid is not used to further a particular political or religious standpoint aid respects culture and custom and involves programme beneficiaries in the management of relief aid and aid builds upon local capacities and strives to reduce future vulnerabilities. Sphere Project's Humanitarian Charter and Minimum Standards the 2003 Principles and Good Practice of Humanitarian Donorship. (provision of aid on the basis of objective need rather than media, foreign-policy driven aid – reducing paper and reporting burden for implementers) Weaknesses: no compliance mechanisms other than voluntary efforts by those who decide to abide by them. Unless, tying to donor funding as explained by our colleague from Aus RC yesterday or unless combined with peer review mechanisms, as undertaken by Humanitarian Accountability Partnership International, (which aims to increase organisations' accountability to their own beneficiaries through an accreditation/certification scheme). Global Soft Law Resolutions Measures to Expedite International Relief (1977) GA Resolutions 46/182 (1991) & 57/150 (2002) (INSARAG) Hyogo Framework for Action (2005) Codes & Standards Red Cross/NGO Code of Conduct (1994) Sphere Charter and Minimum Standards (2000) Principles of Good Humanitarian Donorship (2005) Guidelines & Models WCO/OCHA Model Customs Agreement (1996) Oslo Guidelines on the Use of Military and Civil Defense Assets in Disaster Relief (1994, 2006)

2. Regional Law ASEAN Agreement on Disaster Management and Emergency Response (not yet in force) EC Civil Protection Mechanism ECHO humanitarian aid Inter-American Convention (3 parties) Assocation of Caribbean States Agreement (not in force) Let us now briefly turn to the regional level, the effectiveness of relevant treaties is mixed. in Africa international disaster response is dealt with at the sub-regional level. The impact of existing instruments in the Americas is minimal, as the 1991 Inter-American Convention to Facilitate Disaster Assistance has only been ratified by 3 states and the 1991 Agreement Establishing the Caribbean Disaster Emergency Response Agency is not yet in force. ASEAN best practice Not yet entered into force, the ASEAN treaty is notable in addressing all humanitarian actors, including NGOs, and in calling on state parties to facilitate the entry and operations of relief personnel, goods and equipment, once an offer of relief has been accepted from an actor. (Agreement on Disaster Management and Emergency Response which establishes a Co-ordinating Centre for Humanitarian Assistance. ) At the European level, a comprehensive legal regime has been developed in the areas of humanitarian aid and civil protection. A legal study on this framework, carried out by the Austrian Red Cross and IDRL Programme is available on our website EADRCC: Euro-Atlantic Disaster Response Coordination Centre created in 1998 to coordinate disaster relief efforts in case of natural or technological disasters (also beyond the border of Europe. Pakistan (airlifting supplies), US (transport of food, medical and logistical supplies). IGAD SADC ECOWAS

3. Bilateral level Treaties, MOUs (IOs) Request and Response Waive/reduce visa requirements Custom restrictions & duties Mutually waive liability/receiving state indemnifies Overall costs to assisting State First of all between states, Hundreds of bilateral treaties exist, especially in Europe. The majority relate to mutual assistance between states in the same region, others cross continents. Generally cover : requests and offers for assistance by states, waive or reduce visa requirements, customs restrictions and duties, mutually waive liability for death, injury or damage and mainly assign overall response costs to the assisting state (sometimes receiving state pays in-country costs, such as lodging and supplies). In addition, bilateral agreements have been adopted between states and international organisations, such as the UN and its agencies, to provide assistance to a specific disaster. International organisations also often benefit from "headquarters" or "status" agreements which allow them to set up a permanent office in a country (for the purposes of providing ongoing development assistance and ensuring immediate mobilisation of resources in the event of disaster) They greatly facilitate an international organisation's access and operations in the event of a disaster as they for instance grant fiscal, import/export and communications privileges, immunity and inviolability of the organisation's assets, property and of personnel carrying out official functions. NGOs on the other hand, most often register as an NGO under national law or work through a local implementing partner. Under this regime, they generally do not benefit from special recognition, privileges, immunities and exemptions for their activities.

Gaps in the international framework For binding legal instruments Few parties Limited scope (sector specific) Lack of legal recognition of certain actors Lack of domestication and uniformity For soft legal instruments No enforcement mechanism For hard and soft legal instruments 5. & 2. Lack of awareness and application in the field Few parties: Example. Annex to Kyoto, Interamerican Convention Tampere Asean Exception: Nuclear Assistance Convention (1986) 2. Limited scope – sector specific 3. Lack of legal recognition of certain actors Example: Nuclear: States, IOs, IAED UN Privileges : UN Exception: Tampere, Asean 4. Lack of domestication Exception: UN Privileges & Immunities For soft law: no enforcement For both: lack of awareness and application in the field (so challenge even if legal battle is won is still dissemination and training) 5. Exception (survey findings): Sphere, Code of Conduct

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