Legal Challenges faced by militaries in undertaking

Disaster Relief Operations

Scope

• International legal framework:• Legal principles• Legal issues for militaries

• Bilateral arrangements between states• Domestic legal constraints

International legal framework:‘Hard law’

• Multilateral agreements:

• Specific to Disaster Relief:• 1998 Tampere Convention on the

Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations

• 2000 Framework Convention on Civil Defence

• Regional treaties on disaster relief in the Americas, Europe and the Middle East

• ASEAN Agreement on Disaster Relief and Emergency Response (not yet in force)

• Incidental provision for Disaster Relief:• 1944 Chicago Convention of

International Civil Aviation, Annex 9

• 1965 Convention on Facilitation of International Maritime Traffic

• 1973 Kyoto Convention on the Simplification and Harmonization of Customs Procedures

• 1990 Istanbul Customs Convention

• Optional Protocol to Convention on the Safety of the UN and Associated Personnel

• Bilateral agreements

International legal framework:‘Soft law’

Resolutions/declarations:

• UNGA resolution 46/182 of 1991• UNGA resolution 57/150 of 2002• Human rights law norms • Measures to expedite International

Relief, 1977• Declaration of Principles for

International Humanitarian Relief to the Civilian Population in Disaster Situations, 1969

• Recommendations to expedite the forwarding of Relief Consignments, 1970

• ASEAN Declaration on Mutual Assistance on Natural Disasters, 1976

• Jakarta Declaration on Action to Strengthen Emergency Relief, Rehabilitation, Reconstruction and Prevention, 2005

Codes and Guidelines:

• ASEAN Regional Standby Arrangements SOP• ARF General Guidelines for Disaster Relief

Cooperation• ARF Strategic Guidance for Humanitarian

Assistance and Disaster Relief• Oslo Guidelines on the Use of Military and Civil

Defence Assets in Disaster Relief• OCHA draft Guidelines on the Facilitation of

Foreign Military Assistance to Disaster Relief Operations in the Asia Pacific Region

• Red Cross and Red Crescent NGO Code of Conduct• Sphere Humanitarian Charter and Minimum

Standards in Disaster Relief Handbook• International Search and Rescue Advisory Group

(INSARAG) Guidelines• International disaster response laws, rules and

principles (IDRL) initiative of the International Federation of Red Cross and Red Crescent Societies (Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance)

Legal principles

• Sovereignty• Disaster Relief is the primary responsibility of the affected state

• Security is the primary responsibility of affected state

• Consent

• Primacy of affected state and of its military

• Humanitarian principles (humanity, neutrality and impartiality)

• Disaster Relief must be driven by need

• ‘Do no harm principle’ emerging

Legal issues for militaries

• Last Resort principle?

• Primacy of affected state and of its military

• Incompatible military activities

• Security – a responsibility of the affected state

• Humanitarian principles

• Privileges and immunities

Bilateral arrangements between states

• Either:• legally-binding agreements (treaties), or• non-legally binding arrangements (MoU).

• Address:• Exposure to legal jurisdiction• Capacity to contract (e.g., lease of premises, hire of local staff)• Recognition of qualifications of personnel, licences and permits• Registration of vehicles, aircraft, vessels• Import and export formalities and taxes (customs)• Entry and exit formalities and taxes (visas)• Freedom of movement restrictions and taxes• Restrictions on use of communications equipment

Domestic legal constraints

• Domestic enforceability of bilateral arrangements?• Gives domestic effect to government assurances• Facilitates deployment of foreign forces• Few good examples• Contentious issues• Limitations to domestic enforceability

Summary