In a sovereign territory, the right to establish boundaries and barriers that limit, regulate or tax the entry of goods and persons is considered sacrosanct. This right is ordinarily exercised through legal facilities – legislation, rules and regulatory guidelines – which are themselves patterned from and guided by international treaties and principles on trade, cooperation, the cross-border movement of goods and persons, humanitarian law and other factors. In addition to these formal mechanisms, other conditions and barriers to entry emerge from informal practices and the professional and personal factors that drive immigration, customs, port authorities, tax authorities and other key personnel. The humanitarian and disaster relief response that necessarily accompanies a major disaster event must navigate these legitimate and illegitimate, formal and informal barriers to entry. Without the appropriate levels of legal facilitation, international disaster relief actors can lack the lawful authority to enter a sovereign territory, import goods and specialty equipment, obtain the legal status and tax identity needed to navigate the country’s commercial and regulatory space, establish an in-country banking and financial presence, register its personnel to provide specialty services to the affected population and partner with local actors.
For these reasons, international disaster relief places a legitimate demand for the variation or abrogation of the ordinary rules and regulations that hinder or restrict the entry of goods and persons. This variation in the application of the law can occur through formal and informal means. The need for special legal facilities increases exponentially during a major disaster event, as both demand for and supply of international relief goods and services will mount in the face of a need that overwhelms national capacity.
In addition, the major catastrophic event has the typical impact of introducing new and ad hoc players to the disaster response field. In addition to the national disaster mechanisms and its partners that are typically involved in disaster and emergency management or humanitarian relief, the added influx of relief from ordinary citizens, private sector interests and international NGOS can quickly overwhelm the affected country’s ordinary response mechanisms.
International Disaster Response Law can be seen as a body of principles that guide how the legal and policy framework of a country ought to be designed, in order to create the right balance of facilitation and regulation between an affected country and disaster relief actors. As a primary global actor in humanitarian and disaster relief affairs, the International Federation of Red Cross and Red Crescent Societies (IFRC) has a history of informing and in uencing the legal thinking on this subject. Below is an excerpt from the Terms of Reference document that guided this research project, and which brie y catalogues the recent history of international disaster response law in the IFRC.
In 2001, the Federation launched its “International Disaster Response Laws, Rules and Principles” Programme to examine the legal issues in international disaster relief and recovery operations. Over the course of several years, the IDRL Programme commis- sioned over two dozen country and regional studies and contacted governments, National Societies, NGOs and UN agencies to identify common legal issues. It found a common set of legal problems arising in international operations, due mainly to a lack of legal preparedness at the national level. They include both barriers to access (including issues with visas, customs clearance and duties, taxes and charges and legal personality problems) as well as failures of control over the quality, coordination and complementarity of international relief.
In 2006-2007, the IDRL Programme spearheaded a global consultation process to develop the “Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance.” These Guidelines were drawn from existing international law and standards and aimed at recommending practical solutions to the common problems noted above. They were unanimously adopted by the state parties to the Geneva Conventions at the 30th International Conference of the Red Cross and Red Crescent in November 2007. The Conference encouraged governments to make use of the Guidelines to strengthen their regulatory frameworks for international disaster response and invited the Federation and National Societies to promote and support such efforts. State parties unilaterally reiterated the urgency to strengthen legal preparedness for international disaster response at the 31st International Conference of the Red Cross and Red Crescent in November 2011, in light of the IDRL Guidelines.
And thus, was born the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance or IDRL Guidelines. As its name suggests, the Guidelines cover a range of recommendations that are designed to improve how countries develop laws, rules and principles that both facilitate and regulate international relief and initial recovery. The IFRC describes the guidelines as “a set of recommendations to governments on how to prepare their disaster laws and plans for the common regulatory problems in international disaster relief operations”. They are therefore non-binding, and may be considered both instructive and persuasive as to best practice in legal and policy-based methodologies for regulating and streamlining international relief.
In 2015, the 32nd International Conference of Red Cross and Red Crescent unanimously agreed to accelerate progress in the facilitation and regulation of international disaster response. The IDRL Guidelines provide a key mechanism against which both national societies and governments can benchmark their international disaster response regulation, in fulfillment of Resolution 6. Other components of Resolution 61 cover issues that are integral to effective disaster response regulation, including support for strengthening disaster risk reduction laws, and the provision of supportive legal frameworks for saving lives through first aid.
It is to be noted that, as the IDRL guidelines comprise a non-binding instrument, they can identify and ascribe duties and responsibilities different types of players engaged in international disaster relief and response. These are:
- The recipient state
- The donor state
- Humanitarian organisations
- Other donors/disaster relief providers
- The transit state