Legal Lessons in Disaster Relief from the Tsunami, the Pakistan Earthquake and Hurricane Katrina

One year ago, a previous Insight (David Fidler, ?Indian Ocean Tsunami and International Law,? January 2005) acknowledged the existence of a rarely discussed framework of international laws, rules and principles concerning international disaster response operations, but noted that there are significant gaps in both its scope and implementation. This Insight will further examine this proposition through the prism of experiences in responding to the Indian Ocean tsunami of December 2004,[1] as well as more recent operations responding to the earthquake in Pakistan in October 2005 and Hurricane Katrina in the United States in August 2005.

Problems of Entry

As in major disasters of the past, the most visible legal issues associated with the above-mentioned disasters concerned the entry of international relief goods and equipment.  Despite the best efforts of governments of the affected states, aid did not always find its way smoothly to those who needed it.  For example, a year after the tsunami in Indonesia, an estimated 217 containers of tsunami relief aid were reportedly still with customs authorities in Tanjung Priok Port outside Jakarta and a further 232 containers and 58 vehicles were in a similar predicament in Belawan Port, Medan.[2]  Similarly, at one point during the relief operations in Sri Lanka, over 100 relief containers were stranded at the port in Colombo awaiting inspection and approval from different government ministries.[3]  Many food items therefore perished before they could be distributed and other items, such as tents and body bags, were no longer needed. In the United States, nearly 400,000 ?meals ready to eat? flown to Little Rock by the United Kingdom in response to Hurricane Katrina were quarantined in a warehouse because they contained British beef, banned by American health regulations.[4]  

These types of problems are by no means unique to the disasters examined here.  They may arise in part due to simple manpower issues associated with the crush of incoming relief, but the inflexibility of normal customs and import regulations or the confusion arising from the hasty adoption of impromptu procedures frequently also have a role. On the other hand, bottlenecks can equally be caused by international actors if they inadvertently or deliberately fail to comply with national laws and regulations.

The Legal Framework

There are a number of authoritative international ?soft law? instruments calling upon all states to take special measures to expedite the entry of relief personnel and materials in cases of disaster.  These include General Assembly Resolutions 46/182 of 1991 and 57/150 of 2002, the ?Measures to Expedite International Relief,? adopted by both the International Conference of the Red Cross and Red Crescent (?International Conference?) and the United Nations? Economic and Social Committee in 1977,[5] the International Conference Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations of 1969,[6] and the Recommendations of the Customs Co-ordination Council (predecessor to the World Customs Organization) to Expedite the Forwarding of Relief Consignments of 1970.[7]  The latter instrument also makes a specific call on receiving states to waive any otherwise-applicable duties or taxes on relief goods.

Only a few ?hard? international instruments addressing these questions were applicable to the states discussed in this note.  The United States was a party to annex F.5 to the 1973 Kyoto Convention on the Simplification and Harmonization of Customs Procedures which mainly codified the Customs Co-ordination Council recommendations mentioned above.[8]  Likewise, Sri Lanka is a party to the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations of 1998,[9] which entered into force in January 2005, in the thick of the tsunami response operation.

In the event, ad hoc procedures and rules had to be adopted in all of the states examined here to facilitate expedited entry, not always with success. Several weeks after the commencement of the relief operation in Sri Lanka, there had been no final determination by Sri Lankan customs as to the types of goods which could be exempted from tax and import duties. Eventually it was decided that, apart from pre-existing agreements with certain international organizations, there would be no such exemptions and only minimal relaxation of standard procedures for relief items to be distributed by non-government organisations.[10] However, if the goods were handed over to specified Sri Lankan government agencies upon arrival, the taxes and duties would be waived, with each category of relief item subject to special handover and distribution procedures. Special procedures were also developed for the importation of rice, used clothing, equipment such as telecommunications and computers, and vehicles.[11] Despite the fact that Sri Lanka had ratified the Tampere Convention, there is no indication that any of its provisions were specifically invoked during the relief operation. In fact, some organisations reported that radio equipment was a particularly difficult item to have processed quickly through customs.  It was also reported that some smaller organisations had difficulties paying the taxes and duties levied on their relief goods and had to abandon their goods at the port of arrival.[12]

Operational Problems

The civil liability of relief actors and operations can also be an important issue. Concern about vicarious liability, for example, was one of the factors considered by the Federal Emergency Management Agency (FEMA) and several other United States agencies in their decision to decline any international offers of certain types of aid, including blood products, medical kits and most search and rescue personnel arriving to assist the people affected by Hurricane Katrina.

Less visible but nonetheless significant problems during international relief operations derive from the lengthy procedures required for NGO registration. In Thailand, for instance, it has been reported that the process of registration involves extensive paperwork which is difficult to locate and has been said to take up to two years. Consequently, it is estimated that only a small proportion of NGOs involved in tsunami relief and reconstruction have registered with the Thai authorities. The effect of non-registration is that personnel cannot apply for work permits and must enter the country on short term tourist visas, requiring them to leave and re-enter the country every month. Similarly, non-registered organisations have difficulty opening official bank accounts and must often do so under the personal names of their staff. Non-registration can also have implications for entering into legal arrangements such as employment contracts for local staff and lease agreements for office and residential premises, as these organisations do not have recognised legal personality in the country.

In Sri Lanka, the government established the Centre for Non-Government Sector (CNGS) in the post-tsunami period for the specific purpose of facilitating NGO registration, managing information on NGO activities and to improve the coordination of the disaster response effort.[13] While the CNGS only became fully functional for the reconstruction phase of the operation, it nonetheless represents an initiative designed to overcome some of these challenges.

Humanitarian Accountability

There are additional good reasons for having systems and procedures in place to monitor international relief activities. In all of the disasters addressed here, there were incidents of poor practice by some international responders. Foremost and most damaging among these were communication and coordination problems. For example, the International Federation of Red Cross and Red Crescent Societies World Disaster Report for 2005 characterized Aceh, Indonesia as an ?information black hole? with tremendous breakdowns in cooperation among various international actors, many of whom did not bother to participate in coordination meetings organized by the United Nations.[14] This led to competition among organizations to ?plant the flag,? disparities between over-served and ignored areas,[15] and dilemmas such as that encountered by representatives of Médecins du Monde when they arrived at a village near Banda Aceh and found that an unknown NGO had vaccinated some of the children there leaving no records and no sure way to determine who had and had not already been served.[16]

Many international providers, particularly newly established and inexperienced organizations, sent inappropriate aid, clogging transportation, warehouses and transit points. After the Pakistan earthquake, heaps of used clothing unsuited to cold conditions brought in by some international NGOs disturbed aid traffic in Muzaffarabad and prompted affected persons to burn them to keep warm.[17] In Thailand, there were instances of so-called ?Stop and Droppers? who would off-load various relief items to affected communities (sometimes inappropriate foreign items such as baby food) and not provide any other support or continuity of programmes.[18] Unqualified personnel,[19]  ?disaster tourists? and others with non-humanitarian designs, such as those who would only exchange relief items for religious conversion,[20] added to the mistrust and suffering of affected communities.

Another major challenge for the tsunami relief and recovery operations is that of temporary shelter and permanent housing. In some tsunami affected countries, such as Indonesia and Thailand, there were no clear guidelines about acceptable building standards or maintenance responsibilities for temporary settlements. As a result, some houses were poorly built, too small for families and prone to problems with sewage or damage caused by flooding, rendering some of the housing uninhabitable.[21]

Concerns have also been raised about the social and economic impact of having so many relief organisations vying for space in disaster affected areas. In Indonesia, the number of relief agencies seeking to lease premises for their offices and staff accommodation in some areas caused local rental prices to rise by up to 200 per cent, beyond the means of the local community, leading to further displacement as people moved to less expensive areas or left their homes to reap the profits of leasing to foreign organisations.[22] Similar phenomena were also witnessed in some areas of Pakistan after the earthquake.

There are very few legally binding standards of humanitarian accountability or quality in international law. The Red Cross/Red Crescent Movement is one exception, inasmuch as it is bound by international documents setting out the Movements? fundamental principles, statutes and other regulations.  A few treaties concerned with disaster relief contain some cursory language in this area, but most of these are bilateral and concern only the conduct of a single assisting government.[23]  Instead, the humanitarian community has thus far opted for voluntary standards, the most important of which are the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organisations in Disaster Relief,[24] the Sphere Project?s Humanitarian Charter and Minimum Standards in Disaster Response,[25] and the Principles and Good Practice of Humanitarian Donorship,[26] endorsed by a number of major donor state governments at a conference in Stockholm in 2003.  Each of these instruments has provisions relevant to the types of conduct and quality problems cited above.  However, the lack of enforcement mechanisms limits their implementation. While there are several ongoing initiatives to address this, notably through peer-review mechanisms such as the Humanitarian Accountability Partnership International, participation in them is still quite modest in comparison with the number of actors.  Moreover, such mechanisms do not address the many smaller actors that enter the field of disaster assistance in the wake of a major event. 

Although not ?legal? per se, there have also been a number of other international tools to improve the quality of relief. The Emergency Items Catalogue developed by the International Red Cross and Red Crescent Movement provides detailed descriptions and specifications for different relief items with the aim of improving the overall standard of emergency relief and avoiding inappropriate donations. The World Health Organisation also issues an annual revision of its Model List of Essential Medicines,[27] which identifies medicines that are globally recognised as safe, effective and cost-efficient for treating a range of conditions. Standards such as these could be useful reference points for relief agencies and could be incorporated into national legislation and policies by governments as a way of improving the consistency and standards of relief items that will be accepted from abroad in emergency situations.

Recent Legal Developments

In the wake of the tsunami, momentum has built for the development of new instruments to address some of the types of problems outlined above.  In January 2005, an international conference adopted the Hyogo Framework for Action focused on disaster risk reduction and preparedness, including through anticipatory national legislation.[28]  In July 2005, the member states of ASEAN adopted the Agreement on Disaster Management and Emergency Response, a far-reaching treaty addressing cooperation between states and with other disaster-relief actors.[29]  Although many of the provisions of the latter instrument are of a general nature and require specific implementation measures by each state, the Agreement provides for special exemptions from taxation, duties and other charges for relief providers importing equipment such as vehicles, telecommunications and other materials and equipment, by both recipient and transit states. It also directs the states parties to facilitate the entry, stay and departure of personnel, goods and equipment and encourages cooperation with international and non-government organisations and civil society.

Some governments have also been moved to initiate or fast-track the development of national legislation to deal with disaster situations. Indonesia has recently proposed a new Disaster Management Bill to its parliament,[30] and the governments of Sri Lanka[31] and India[32] recently adopted new disaster bills.  However, while the Indonesian and Indian bills refer to the possibility of receiving international assistance,[33] neither they nor the new Sri Lankan law contain specifics of when and how this should occur. The United States Congress is also currently considering a bill to provide certain immunities from liability to ?disaster relief volunteers? both domestic and foreign as well as to governmental and intergovernmental organizations that use their services;[34] however, in light of the volume of Hurricane Katrina-inspired legislative proposals, it is unclear if it will be adopted. 

Conclusion

Recent experiences confirm that existing international and domestic regulatory regimes are not as effective as might be desired in facilitating international relief where it is needed.  Rather than addressing potential legal issues as an integrated part of disaster preparedness, there is a clear tendency for governments and relief agencies to resort to ad hoc arrangements and the development of policy on the run. However, awareness of the legal aspects of international disaster response is increasing. Initiatives such as the ASEAN Agreement and some of the new national legislation under consideration suggest that governments are recognising the importance of ?legal preparedness? and are willing to establish mechanisms to facilitate regional and international assistance in the event that it may be needed.  The unusually high incidence of major disaster operations over the past two years provides an opportunity to evaluate the effectiveness of existing legal frameworks and to find ways forward to ensure their strengthening and improvement.

About the authors

Victoria Bannon is the Asia-Pacific Programme Coordinator and David Fisher is the Legal Research Officer for the International Disaster Response Laws, Rules and Principles (IDRL) Programme of the International Federation of Red Cross and Red Crescent Societies.  Both authors are ASIL members.  The views expressed in this paper are the authors? and do not necessarily represent those of the International Federation.