Michael Eburn ANU College of Law & Fenner School of Environment & Society International Disaster Response - Law

Is law the issue? Consider recent examples: Christchurch

Japan Search teams from more than a dozen nations were bound for Japan, including a unit from New Zealand, … [and a] combined search squad from Los Angeles County and Fairfax County… Assistance teams also were due from China and South Korea, two of Japan's traditional and most bitter rivals. (Kyodo News via AP)

So when is law the issue? Maybe not for first responders? Consider: –International Search and Rescue Advisory Group (INSARAG) Urban Search and Rescue (USAR) standards and cooperation. –International assistance between US, Canada and Australia during wildfires. –What might be some key common features?

But is that always the case? France called on the United Nations to intervene. Ban Ki Moon, UN Secretary General spoke of a critical moment for the people of Burma. The UNs humanitarian chief, John Holmes, urged the junta to facilitate the arrival of disaster relief teams and the distribution of badly-needed emergency supplies. There is some aid coming in, but it is barely enough for survival, and all of it supplied by the agencies of the military Government. Foreign aid workers have still not been allowed into Burma in large numbers,... aid agencies accused Burmas closed and stubborn regime of risking millions of lives by refusing to allow entry to foreign aid workers, most of whom are still waiting to obtain permits Cyclone Nargis strikes Burma:

What is the legal position? Is there a right to deliver aid? Is there a right to receive aid? Is there an obligation to allow aid? What is the international communitys Responsibility to Protect?

Where does international law come from? a)Treaties and conventions; b)Customary international law; c)the general principles of law recognized by civilized nations d)Judicial decisions and academic writing. Statute of the International Court of Justice 1945 (Int) art 38.

Treaties and conventions? Are you aware of any? –The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations; –ASEAN Agreement on Disaster Management and Emergency Response; –Conventions on response to nuclear accidents; reentry of space craft; safety of life at sea…

What gap? Conventions are limited – –by type of response (eg communications); –by region (eg ASEAN); or –by the nature of the event. –There is no universal treaty governing law of disaster relief (compare IHL and the Geneva Conventions).

Customary international law Countries, the NGO sector and individuals do respond to disasters, but why? Is that enough? Is there the opinio juris?

the general principles of law recognized by civilized nations No universal duty to rescue

The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty (December 2001).

In the Commissions view, military intervention for human protection purposes is justified … to halt or avert: –Large scale loss of life… which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation..." ([4.19])

Further In the Commissions view, these conditions would typically include the following types of conscience-shocking situation: –Overwhelming natural or environmental catastrophes where the state concerned is either unwilling or unable to cope, or to call for assistance, and significant loss of life is occurring or threatened. ([4.20])

The Responsibility to Protect is adopted by the United Nations, 2005 The international community, through the United Nations... [is] prepared to take collective action... should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. UN GA Res 60/ World Summit Outcome [139] (emphasis added).

So… Is there a right to deliver aid? Is there a right to receive aid? Is there an obligation to allow aid? What is the international communitys Responsibility to Protect?

The Red Cross/Red Crescent IDRL Project IDRL = International Disaster Response Law, Rules and Principles. Identified common problems with international disaster response; Developed guidelines to assist States to assess their own laws to facilitate international disaster assistance.

Problems exist in the areas of: 1.initiation and termination of the international response; 2.goods and equipment (including issues of inappropriate aid and delays in getting humanitarian supplies into an affected country due to customs, transport or administrative barriers); 3.personnel (including issuing visas and recognition of professional qualifications); 4.transport and movement around the disaster area; 5.operational matters (such as establishing an office, opening bank accounts and employing staff); 6.quality and accountability; and 7.the coordination of international responders.

The IDRL Guidelines These guidelines are non-binding. … Their purpose is to contribute to national legal preparedness by providing guidance to States interested in improving their domestic legal, policy and institutional frameworks concerning international disaster relief and initial recovery assistance. ([1] and [3]).

No international convention The international community has been unwilling to adopt an international convention to formalise rights and obligations: –International Relief Union (1932 – 1967; but it only provided relief in 1934 and 1935); –Draft Convention on Expediting the Delivery of Emergency Assistance (1984)

But is it a problem? Think about the current disasters, but will the situation change when we move from search and rescue to longer term recovery? Is international law the answer? (see Fidler, David P., "Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law? (2005) 6(2) Melbourne Journal of International Law 458). Or should we focus on the development of domestic law.

Questions? Discussion? Thank you for your attention. Michael Eburn ANU College of Law and Fenner School of Environment and Society Australian National University CANBERRA ACT 0200 E: P: (02)