The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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THE APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAW (IHL) IN THE SITUATION OF DISASTER

Ajay Kumar Singh*
Abstract: Law is a means of controlling, directing, and constraining potential actions. If law as an institution is to have international relevance, it must apply to critical issues. The survival of humanity depends on how threats posed by disasters are addressed. Natural disasters are the consequences of events triggered by hazards that overwhelm local response capacity and seriously affect the social and economic development of a region. Traditionally, natural disasters have been seen as situations that create challenges and problems mainly of a humanitarian nature. However, increasingly, it has come to be recognized, that human rights protection also needs to be provided in these contexts. There has been increasing attention given to international disaster response laws. This paper examines whether in fact international humanitarian law is sufficient to deal with such a disaster situations, in particular, with relief efforts. The author concludes that international humanitarian law is useful as a basis, but other ar eas of law are essential in filling the gaps, particularly international disaster response laws. As such, the author believes emerging international disaster response law instruments should be encouraged to have a broad scope whereby these instruments include disaster situations inter alia. This Paper first sets forth the substance of the requirements of IHL applicable to disaster situations and then applies such requirements to contemporary state practice. Key Words: International Law, Disaster, Hu manitarian Law.

Introduction: Every year, millions of people are affected by natural and man-made disasters. There has been also every year, the international community faced with the challenge of responding to crises that exceed the capacities of national infrastructures, by assisting with essential tasks such as the protection of survivors and the immediate assistance to communities in drastic need of the most basic necessities such as food, shelter and safe drinking water. International disaster response is therefore essential for saving lives, retaining human dignity and reducing the vulnerability of disaster affected communities. Yet, despite the continuous need for fast and effective international disaster response, there remain many barriers in international law which prevent or delay assistance from reaching those who need it. The increase in the number of disasters in the world has unsurprisingly been accompanied by increased attention towards helping the victims of these catastrophes. The laws relating to disaster response are slowly developing but are yet to attain the same level of global acceptance as the laws of armed conflict. 1 Unlike situations of armed conflict, there are no well recognized and comprehensive legal instruments which identify internationally agreed rules, principles and standards for the protection and assistance of people affected by natural and technological disasters. Nor is there one single source where humanitarian workers and governments can find this information. As a result, many international disaster response operations are subject to ad hoc rules and systems, which vary dramatically from country to country and impede the provision of fast and effective assistance - putting lives and dignity at risk. One of the potential means of trying to improve this ideal is through the clarification and development of an appropriate legal framework. Unlike international humanitarian law (IHL), the body of law regulating armed conflict, there is no clear, comprehensive and coherent set of legal rules at the international level that facilitates, coordinates and regulates international response to natural or man-made disasters.2 In

*Research Scholar, Faculty of Law, Banaras Hindu Uni versity Varanasi, INDIA.
1

International Federation of the Red Cross and Red Crescent Societies (IFRC), Law and Legal Issues in International Disaster Response: A Desk Study (IFRC 2007), at 15 2 Jiri Toman, Towards a Disaster Relief Law: Legal Aspects of Disaster Relief Operations in Fritz Kalshoven (ed), Assisting the Victims of Armed Conflict and Other Disasters (1989), 181; M ichael Hoffman, Towards an International Disaster Response Law in International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2000, at145

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addition to the absence of a comprehensive multilateral treaty3 , the existing international legal framework, ranging from binding law, such as multilateral, regional and bilateral treaties, to soft law resolutions and guidelines, remains patchy and suffers from serious weaknesses limiting its effectiveness. At the national level, comprehensive disaster management legislation remains rare. As a result, both international humanitarian actors providing relief and domestic actors receiving international aid often face legal problems, which are legal in the sense that regulation in these areas either at the international or national level is deficient, inexistent or devoid of application. Defining Disaster: For the purpose of International law, it is necessary to determine that which event or situation called disaster and which are not. Although there is no any precise internationally agreed definition of disaster. Generally, international instruments view disaster quite broadly. 4 In a study completed in 2007 by the International Federation of Red Cross and Red Crescent Societies (IFRC) entitled Law and Legal Issues in International Disaster Response: A Desk Study (IFRC Study), the IFRC included sudden onset events (e.g. earthquakes and particularly volatile diseases), slow onset events (e.g. droughts and slow spreading disease), in both natural and human-made disasters. 5 Like most international instruments, the study did not examine events that did not have widespread effects on a society but unlike most of the international instruments, the IFRC Study expressly excluded armed conflicts from their definition of disaster in the belief that there is already a comprehensive global legal framework of [IHL] which governs humanitarian assistance in armed conflict. 6 We define disasters as a serious disruption of the functioning of society, posing a significant, widespread threat to human life, health, property or the environment, whether caused by accident, nature or human activity, and whether developing suddenly or as the result of complex, long-term processes, excluding armed conflict situations.7 No body of law is going to be perfect in dealing with relief provisions in situations of disaster but perhaps some other bodies of law are better equipped to deal with such situations, or at the very least, need to be seriously considered in concert with IHL. Before looking at how any gaps in IHL can be filled, it is useful to identify where the overall gaps are in IHL with respect to disaster relief. International law and disaster: Analysing the relationship between international law and natural disasters (such as earthquakes, floods, tsunamis, typhoons, hurricanes, volcanoes and droughts) reveals that the relationship has historically been weak. The International Federation of Red Cross and Red Crescent Societies (International Federation), the mission of which is to provide assistance to populations affected by peacetime (disasters), has called disaster response a long-neglected facet of international law and argued that it is unlikely that any other challenge looming so large in world affairs has received so little attention in the legal realm 8 . The International Federation has contrasted the neglect of peacetime disasters with the extensive body of international humanitarian law, 9 which applies in times of armed conflict. In 1758, Emmerich de Vattel captured the humanitarian nature of natural disasters when he argued that famine or other calamities triggered a natural law duty for other states to provide assistance.10 To give assistance in such extreme
3

Previous historical attempts, such as the 1927 Convention establishing the International Relief Union and 1984 Draft Convention on Expediting the Delivery of Emergency Assistance issued by the Office of the UN Disaster Relief Coordinator failed, see M ichael Hoffman, Towards an International Disaster Response Law in International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2000 4 See survey of definitions in Ibid. at 2224 5 Ibid. at 23 6 Ibid. at 24 7 Tampere Convention on the Provision of Telecommunication Resources for Disaster M itigation and Relief Operations, article 1.6 8 International Federation, World Disasters Report 2000 (2000), at157 9 The body of international humanitarian law involves many treaties and customary international law. See International Committee of the Red Cross, What is International Humanitarian Law? (2004), available at <http://www.icrc.org/web/eng/siteeng0.nsf/iwpList2/Humanitarian_law:IHL_in_brief?OpenDocument> last visited 1 October 2010 10 [I]f a Nation is suffering from famine, all those who have provisions to spare should assist it in its need, without, however, exposing themselves to scarcity Whatever be the calamity affecting a Nation, the same help is due to it: Emmerich de Vattel,

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necessity, Vattel wrote, is so essentially conformable to humanity, that the duty is seldom neglected by any nation that has received the slightest polish of civilization. 11 In January 2005, unexpectedly scheduled on the heels of the tsunami, Japan hosted a major international conference on disaster risk preparedness and risk reduction. The resulting Hyogo Framework for Action sets forth a ten-year plan of action, emphasizing the need for greater cooperation and enhanced national legislation. 12 The document has become the main focal point for international action on risk reduction efforts, and an inter-agency task force, facilitated by the International Strategy for Disaster Reduction, a division of OCHA, has continued to meet since that time to encourage implementation of the Hyogo Framework. In August 2005, the report on a system-wide Humanitarian Response Review commissioned by the United Nations Emergency Relief Coordinator was released.13 The Review, prompted by the difficulties encountered in mounting a speedy and coordinated international response to the humanitarian crisis in Darfur, sought to identify the main gaps in the overall humanitarian system. In response to the Reviews findings, the United Nations Inter-Agency Standing Committee (a senior policy making-body made up of the heads of the UN humanitarian and development agencies, the international components of the Red Cross/Red Crescent and prominent NGO umbrella groups) provisionally adopted a modified coordination structure for UN and cooperating humanitarian actors, involving sectoral clusters, each with a single agency/organization cluster lead with particular responsibility to ensure coordination of actors within that sector. The new system is being tested in the operation in Pakistan, where it has met with some success. Legal Issues in International disaster response: There are a host of legal issues that regularly arise in international disaster operations, some of them seriously costly to their efficiency and integrity. First among these is how such operations are initiated in the first instance. The United Nations General Assembly has insisted that, in disaster situations, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country. 14 This can be complicated, however, when the domestic authorities and procedures for requesting and accepting outside aid are not clearly set out, and/or when a governments capacity to assess the need for outside aid is inadequate to make a timely request. Regardless of any overall decision to accept outside aid, immigration, customs and other technical barriers to the entry of relief vehicles, personnel, goods and equipment (particularly telecommunications) are common and significantly delay disbursement of necessities to those in need. Effective operation within a country may be hampered by problems obtaining domestic legal personality to enter into contracts, rent premises, hire local staff, open bank accounts, and purchase local goods and equipment. International personnel may find themselves constrained by domestic liability issues and barriers to recognition of foreign professional qualifications (particularly in the medical field). Taxes, duties, charges and tolls on relief goods and personnel can greatly increase the cost of operations, particularly when, as sometimes occurs, they are suddenly raised in order to maximize the windfall from the presence of numerous internationals. Corruption, theft and banditry are not infrequently fanned to greater heights in the chaotic conditions after a disaster and in the presence of outsiders presumed to be wealthy. In a mixed situation where a disaster occurs on the territory of a Party to an armed conflict, it has been proclaimed that international humanitarian law (IHL) shall be the prevailing body of law. 15 To a certain

The Law of Nations, or the Principles of Natural Law, Applied to the Conduct and to the Affairs of Nations and of Sovereigns (Charles G Fenwick trans, 1916 ed) book II, ch. I, 5 [trans of: Le Droit des gens, ou Principes de la loi naturelle, appliqus la conduite et aux affaires des Nations et des Souverains, first published 1758] 11 Ibid. 12 See: Hyogo Framework for Action 2005-2015, available at www.unisdr.org, last viewed on January 24, 2011 13 United Nations, Humanitarian Response Review, Commissioned by the United Nations Emergency Relief Coordinator and Under-Secretary-General for Humanitarian Affairs (2005), available at www.reliefweb.org 14 U.N. Doc. A/RES/46/182 (19 December 1991) 15 International Federation of the Red Cross and Red Crescent Societies (IFRC), Law and Legal Issues in International Disaster Response: A Desk Study (IFRC 2007), at 36

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degree, this makes sense especially given the wide acceptance of IHL. What remains to be examined, however, is whether in fact IHL is sufficient to protect and assist these people. It will be shown that although IHL provides a good basis for the acceptance and delivery of relief, there are some complications with applying it in mixed situations, particularly when the disaster is far from, and unrelated to, the armed conflict. Furthermore, the IHL Articles on relief do not address all people. Even if one puts aside these broad issues, IHL does not contain the specificity required for an effective and comprehensive relief operation. The evolving body of international disaster response laws, rules and principles (IDRL) is making significant progress in creating standards that can enable the effective and rapid delivery of aid. Such a body of law may be a useful complement to IHL in situations where a disaster occurs on territory where an armed conflict is already taking place. Overview of IHL Relief Provisions: International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States treaties or conventions , in customary rules, which consist of State practice considered by them as legally binding, and in general principles. IHL is generally limited in application to situations of armed conflict, which is not included as a disaster for purposes of this study. However, there are a few exceptions to this general rule. For instance, the Geneva Conventions and their Additional Protocols guarantee the indicative use by National Red Cross and Red Crescent Societies and national civil defence authorities of their respective emblems and signs both in times of peace and war.16 Moreover, when natural disasters coincide with a situation of armed conflict, IHL will apply and prevail over other types of law. In any event, it is instructive to look at IHL by way of analogy where it addresses the same issues confronted by IDRL, particularly in light of the fact that some of the origins of IDRL can be traced to the rise of IHL. The IHL provisions on relief can be found in the Geneva Convention Relating to the Protection of Civilian Persons in Time of War, 1949 (GCIV) and the Protocols Additional to the Geneva Conventions of 12 August 1949, 1977 (API and APII). Article 23 of GCIV 17 and Article 70 of API18 are general
16

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 44, 75 U.N.T.S. 31 (hereinafter, GC I), (on the indicative use of the Red Cross/Red Crescent emblem by National Societies); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 66(7), 1125 U.N.T.S. 3 (hereinafter, AP I). (On the peacetime use of the sign for civil defence); Protocol (Additional to the Geneva Conventions of 12 August 1999, and Relat ing to the Adoption of an Additional Distinctive Emblem) 1125 U.N.T.S. 3; hereinafter AP III (on the red crystal emblem) 17 Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under15, expectant mothers and maternity cases. The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing: (a) that the consignments may be diverted from their destination, (b) that the control may not be effective, or (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the abov ementioned consignments of goods, which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods. The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers. Such consignments shall be forwarded as rapidly as possible, and the Power that permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed. 18 1. If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69, relief actions which are humanitarian and impartial in charact er and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. In t he distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases

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provisions obliging states to allow relief into their territory for civilians. Article 18 in APII, broadly speaking, addresses the right to offer relief services subject to the states consent in an NIAC. 19 What follows is a discussion of how these provisions can be interpreted in the context of IHL given its geographical and temporal scope when a state that is embroiled in an armed conflict is faced with a disaster occurring on its territory. Moreover, when natural disasters coincide with a situation of armed conflict, IHL will apply and prevail over other types of law as a matter of lex specialis20 . In any event, it is instructive to look to IHL by way of analogy where it addresses the same issues confronted by International Disaster Response Law (IDRL), particularly in light of the fact that some of the origins of IDRL can be traced to the rise of IHL. Article 59 of the Fourth Geneva Convention, states that, if the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population and shall facilitate them by all the means at its disposal. 21 Subject to a right of control, both the occupying power and all other contracting parties are required to permit the free passage of relief consignments from impartial humanitarian organizations, including the ICRC, and guarantee their protection. 22 As pointed out by the ICRCs Commentary to the Fourth Geneva Convention, the requirement to accept such relief when it is needed is unconditional. 23 Similar duties are expressed in Articles 70 of the First Additional Protocol concerning non-occupied territory of states in international conflicts and 18 of the Second Additional Protocol 24 on internal conflict, but are conditioned on the consent of the parties concerned. The Commentary on these sections asserts
and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection. 2. The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party. 3. The Parties to the conflict and each High Contracting Party, which allow the passage of relief consignments, equipment and personnel in accordance with paragraph 2: (a) shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted; (b) may make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power; (c) shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned. 4. The Parties to the conflict shall protect relief consignments and facilitate their rapid distribution. 5. The Parties to the conflict and each High Contracting Party concerned shall encourage and facilitate effective international coordination of the relief actions referred to in paragraph 1. 19 1. Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. The civilian population may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked. 2. If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an e xclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned. 20 Lex specialis is a doctrine relating to the interpretation of laws, and can apply in both domestic and international law contexts. The doctrine states that a law governing a specific subject matter (lex specialis) overrides a law which only governs general matters (lex generalis). The situation ordinarily arises with regard to the construction of earlier-enacted specific legislation when more general legislation is later passed. This principle also applies to construction of a body of law or single piece of legislation that contains both specific and general provisions.The name comes from the full statement of the doctrine (a legal maxim) in Latin: Lex specialis derogat legi generali. 21 Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art 59, 75 U.N.T.S. 287 (hereinafter, GC IV). While not as plainly set out, a similar duty may be implied from article 43 of Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, which requires occupying powers to restore and ensure as far as possible public order and safety. 22 GC IV at art. 59. As set out in article 59, the right of control consists of the right to regulate the timing and routes of relief shipments, to search them, and to receive satisfaction that they are in fact destined for civilian relief. 23 See Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, at 320 (Jean S. Pictet, ed., International Committee of the Red Cross 1958) 24 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609

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that such consent may not be arbitrarily withheld, as the offending party would otherwise necessarily be using starvation as a method of war, a specifically prohibited act.25 With regard to the mechanics of offering such assistance, Article 30 of the Fourth Geneva Convention provides that humanitarian organizations shall be granted all facilities needed to provide assistance within the bounds set by military or security considerations and civilians requiring such assistance shall also have every facility to request and receive it. Similar language is employed in Article 142 with regard to relief sent to detained persons, though that section also provides that parties may control the numbers of societies and organizations involved in providing relief so long as the limitation does not hinder the supply of relief. Article 61 of the Fourth Geneva Convention requires that relief consignments be exempt in occupied territory from all charges, taxes or customs duties unless these are necessary in the interests of the economy of the territory and that the Occupying power facilitate the[ir] rapid distribution. The Commentary on this section notes that the limit to the exemption from charges, taxes and duties was included to apply to certain relief consignments not being gifts but being sent against payment, under a long-term arrangement between governments and that states should therefore regard it as absolutely exceptional, since to grant absolute exemption from all charges is really the only way of acting in the true spirit of relief actions. 26 On a similar note, the Commentary on Article 70 of the First Additional Protocol further states that the intention behind the requirement in that provision of rapid and unimpeded passage was to avoid any harassment, to reduce formalities as far as possible and dispense with any that are superfluous. Customs officials and the police in particular should receive instructions to this effect. The passage referred to may take place over land, water, or by air. However, the speed of the passage and whether it takes place unimpeded depends on local circumstances. Thus the obligation imposed here is relative: the pa ssage of the relief consignments should be as rapid as allowed by the circumstances.27 More specialized facilities are provided in Article 23 of the Fourth Geneva Convention for expediting consignments from whatever source of medical and hospital stores and objects necessary for worship as well as for other relief items destined for children under fifteen, expectant mothers and maternity cases. Likewise, both Articles 74 of the Third Geneva Convention and 110 of the Fourth Geneva Convention, specifically call for relief consignments sent to detained persons to be exempt from all import customs and other dues. In a comprehensive study of customary international humanitarian law published in 2005, the ICRC found that many of the above-described rules have also become rules of customary law, binding in both international and internal conflicts. For example, it concluded that: [t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right to control; 28 the parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions subject only to temporary restrictions due to military necessity; 29 and humanitarian relief personnel and objects must be respected and protected.30 While acknowledging that it is self-evident that a humanitarian organisation cannot operate without the consent of the party concerned [,] the study asserts that such consent must not be refused on arbitrary grounds.

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Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 820 & 1479 (Yves Sandoz et al, eds., International Committee of the Red Cross 1987) 26 Supra note 23, at 327 27 Supra note 25, at 822 28 See: Brownlie, Ian Brownlie, Principles of Public International Law, at 6 (6th ed. 2003); M alnczuk Jean-M arie Henckaerts and Louise Doswald-Beck, Customary International Law Humanitarian Law, Vol. I: Rules xxxii (International Committee of the Red Cross 2005) 29 Ibid. at 200 (Rule 56) 30 Ibid. at 200

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United Nations and Challenge of Humanitarian Assistance: Another central theme that has developed over time is the balance between the urgency of providing humanitarian relief on the one hand and the sovereignty and primary role affected states on the other.31 In Resolutions 43/131 of 1998 and 45/100 of 1990, the General Assembly asserted that the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitutes a threat to human life and an offence to human dignity. 32 It thus reaffirmed the importance (and, in Res. 45/100, the cardinal importance) of humanitarian assistance as well as the necessity of utmost consideration by all involved to be paid to the principles of humanity, neutrality and impartiality. 33 At the same time, these resolutions also reaffirmed the sovereignty of affected states and their primary role in the initiation, organization, coordination and implementation of humanitarian assistance within their respective territories. 34 This same balance was repeated in Resolution 46/182, which has become the cornerstone to which subsequent resolutions generally refer. UN resolutions have also addressed domestic legal barriers to international humanitarian assistance. In 1968, General Assembly Resolution 2435 (XXIII) called upon the Secretary-General to study the legal status of disaster relief units made available to the UN.35 In 1971, General Assembly Resolution 2816 (XXVI) invite[d] potential recipient Governments [t]o appoint a single national disaster relief coordinator to facilitate the relief of international aid in times of emergency and [t]o consider appropriate legislative or other measures to facilitate the relief of aid, including over flight and landing rights and necessary privileges and immunities for relief units. 36 In some instances, governments have categorically refused to request or accept international assistance where the needs clearly outstripped national capacities. In such cases concerning the right to humanitarian assistance would plainly be quite relevant. However, instances like these are very rare in non-conflict settings and, even when there has been an initial refusal, the affected state governments position has often softened over time, albeit sometimes at significant cost to affected persons in the interim. 37 In addition, governments may be hesitant or even legally prohibited from requesting international assistance in the absence of a formal declaration of a state of disaster or emergency38 . The Humanitarian assistance may also be required, before a government can begin to modify laws and regulations in order to respond to a disaster, including those especially relevant to international reliefs, such as rules on visas and customs and taxation of relief items. UN General Assembly Resolution 46/182 states that humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country 39 , clearly evincing a preference for a request as the initiating factor. A number of other international instruments, such as the Tampere Convention, the Nuclear Assistance Convention, and many bilateral

31

Arjun Katoch, International natural disaster response the United Nations, in International Disaster Responce Laws, Principles and Practice: Reflections, Prospects and Challenges, (Victoria Bannon, ed., International Federation of Red Cross and Red Crescent Societies, 2003), at 49-50 32 UN General Assembly Res. 45/100, U.N. Doc. No. A/RES/45/100 (1990), pream. Para 5 33 Ibid. at pream. para. 13, at operative para. 1; UN GA Res 43/131, U.N. Doc. No. A/RS/43/131 (1998), pream Para 12, at operative Para 1 34 UN General Assembly Res. 45/100, at Para 2; 43/131 at Para 2 35 UN General Assembly Res. 2435(XXIII) (1968), Para 6 36 UN General Assembly Res. 2816 (XXVI) (1971), paras 8 (b) & (e) 37 See: Tracy-Lynn Field, Regional (Africa) Survey of Disaster Response Laws, Policies and Principles, Background Study to the Pan-African Forum on IDRL (2007) at 25 (hereinafter, International Federation Africa Regional Study), available at http://www.ifrc.org/idrl 38 On the other hand, it has also been alleged that some governments, with the complicity of some international humanitarian organizations, have exaggerated disaster impacts in order to generate international assistance. See Piero Calvi-Parisetti, Report on findings from South Asia, Southern Africa, and Central America (International Federation of Red Cross and Red Crescent Societies 2003), at 11, available at http://www.ifrc.org/docs/pubs/disasters/IDRL_Fieldstudies_results0303.pdf (hereinafter, M ulti-state IDRL Study) 39 See: UN General Assembly Res. 46/182, UN Doc. A/RES/46/182 (1991), at annex para2

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treaties, similarly contemplate that it is the affected state that initiates communication. 40 However, other significant instruments, such as the Cotonou Agreement, Framework Convention, ASEAN Agreement, and the Inter-American Convention, appear to place offers and requests on an equal footing, so long as there is consent from the affected state. This approach is likely more attuned with the fluid type of communications that actually occur in practice, particularly when there is a significant delay in the formal request. Concluding Observation: This paper has examined the applicability of IHL in situation of disaster. It has shown that while IHL is a useful basis for relief operations for disaster and disaster like situations, it is not without problems. There are queries whether in some instances there must be a nexus between the disaster and the need for relief; and there is uncertainty as to how far the duty to provide relief extends. Furthermore, IHL provisions on relief are not directed at all persons. Nonetheless, IHL is very useful in that it provides general principles for humanitarian assistance and for the most part, it is customary international law. The analysis in this paper reveals that IHL is certainly valuable as a basis in disaster situation; however, it is not perfect for ensuring that all victims of disasters will receive effective and efficient aid. As such, a combined case-by-case approach, one that draws on other bodies of law including IDRL, is recommended. Arguably, this may already happen in practice; however, it also needs to be encouraged in theory too. IDRL, which is the most useful body of law in providing the practical details for relief operations is being increasingly developed, largely as a result of the efforts of the International Federation of Red Cross and Red Crescent Societies (IFRC). Nonetheless, the IFRC has not made a strong statement about the applicability and value of IDRL in disaster situations. As such, as the example of the IDRL Guidelines showed, by not encouraging emerging IDRL instruments to apply to disaster situations, disaster situations will be increasingly sidelined. This will prevent useful instruments from applying in contexts where they would be extremely valuable. Ultimately, the aim is to protect people by reducing human death and suffering in mixed situations. Therefore, although IHL is extremely useful, it will be most effective if it is well supported by the other bodies of law that are capable of filling any gaps. As we know that rules of international law are developed in very slow motion, it takes a long time to grow. Although international organizations like UNO, IFRC, European Association etc. has developed international norms for combating disasters but most of them are non-binding. States should enter into more and more treaties and conventions for developing international legal regime for the situation of disaster in the world. International law has developed on the principle of sovereignty of state, but this principle is a great barrier for humanitarian assistance, so states should either amend the existing national disaster laws or should enact new law for co-operating the IHL.

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Tampere Convention on the Provision of Telecommunication Resources for Disaster M itigation and Relief Operations, June 18, 1998, United Nations depositary notification C.N.608.1998.TREATIES-8 of Dec. 4, 1998 (entered into force Jan. 8, 2005) (hereinafter, Tampere Convention). Available at http://www.ifrc.org/what/disasters/idrl/publication.asp.See, e.g., Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency Sept. 26, 1986, 1439 U.N.T.S. 275 (hereinafter, Nuclear Assistance Convention)