Legal Challenges faced by militaries in undertaking Disaster Relief Operations

1. Legal Challenges faced by militaries in undertaking Disaster Relief Operations

2. Scope • International legal framework: • Legal principles • Legal issues for militaries • Bilateral arrangements between states • Domestic legal constraints

3. 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:‘Hard law’

4. 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) International legal framework:‘Soft law’

5. 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

6. 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

7. 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

8. 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

9. Summary