In the Eye of the Storm: Developments in International Disaster Law

For those of us in the direct line of Hurricane Sandy, it seems appropriate to highlight recent developments in international disaster law.

Many of the legal challenges arising from natural disasters involve practical issues such as obtaining visas, removing bureaucratic barriers to financial aid and ensuring that foreign actors offering assistance comply with local laws.

However, natural disasters also raise a number of bigger questions:

• Should the responsibility to protect apply to natural disasters?
• Do states have a duty to accept help following natural disasters?
• How will the obligations to protect citizens affect our understanding of sovereignty?

The International Law Commission (ILC) has been studying the Protection of Persons in Natural Disasters since the 2004 Indian Ocean Tsunami and Hurricane Katrina.   Next week, the Sixth Committee of the UN will consider the ILC’s Fifth Report, which now includes 11 provisionally adopted articles.  The duty of cooperation, in particular, triggers sovereignty concerns, as described by the Special Rapporteur:

Seen from the larger perspective of public international law, to be legally and practically effective the duty to cooperate in the provision of disaster relief had to strike a balance between three important aspects. First, such a duty could not intrude into the sovereignty of the affected State. Second, the duty had to be imposed on assisting States as a legal obligation of conduct. Third, the duty had to be relevant and limited to disaster relief assistance, by encompassing the various specific elements that normally make up cooperation on the matter.

The International Federation of the Red Cross and Red Crescent Societies is a first mover in the field of disaster relief, focusing on state preparedness and technical assistance.  It has created comprehensive and insightful guidelines that are worth a read.

The Hague Academy of International Law has also been considering the issue of state responses to natural disasters, including the possibility of a new Hague Convention on environmental damages, which would address the private international law issues raised by post industrial disaster liability claims.

Professor Samantha Besson, Professor of Public International Law at the University of Fribourg, Switzerland, predicts the following two issues will require most attention going forward:

From the perspective of international law-making, first of all, the main issue is the fragmentation of public international law regimes depending on the kind of disasters and the agents at stake, on the one hand, and whether the concern lies in pre-, during or post-disaster measures, on the other. Currently, the focus of international law has been much more on industrial disasters and on individual damages, on the one hand, and on post-disaster liability issues, on the other. It is time to work more on natural disasters, on their collective dimension and on pre-disaster measures.

The second important issue relates to international institutions. Almost all difficulties currently confronting international law pertaining to disaster have an institutional component. It is important to face it openly as a result, as institutions allow the identification and allocation of duties and responsibilities among states and other international agents.

This is clearly a timely issue.  With climate change, some expect that significant natural disasters are likely to occur more frequently.  Although a consensus has yet to emerge as to how best to address this internationally, policy makers can draw on a lot of “lessons learned” from tragedies including the earthquake in Haiti, the countries affected by the Indian Ocean Tsunami, and Hurricane Katrina.

Do readers think this is an area that is calling out for more international attention?