Tsunamis, hurricanes, earthquakes, and asteroids: are we ready for the next 100 years?

The panel was convened at 10:45 a.m., Thursday, March 29, by its moderator, James Gathii of Albany Law School, who introduced the panelists: Michael Cohen of the New School; David Fisher of the International Federation of Red Cross and Red Crescent Societies; and Arthur Lerner-Lam of the Earth Institute, Columbia University.*

INTRODUCTORY REMARKS BY JAMES GATHII ([dagger])

Welcome to this panel on tsunamis, hurricanes, earthquakes, and asteroids. This panel will examine the international community's ability to respond to disasters. Our panelists are David Fisher, Senior Legal Research Officer, International Federation of Red Cross and Red Crescent Societies; Professor Michael Cohen of the New School, where he was the founding Director of the International Affairs Program; and Dr. Arthur Lerner-Lam, the Doherty Senior Research Scientist and Associate Director for Seismology, Geology and Tectonophyics at the Lamont-Doherty Earth Observatory of Columbia University and the founding Director of the Center of Hazards and Risk Research, the Earth Institute at Columbia University.

This panel will be structured as a conversation, with the panelists addressing a series of questions. They will tell us whether advances in science and technology can help to prevent catastrophic events such as tsunamis, hurricanes, of earthquakes, which, as we know, cause untold destruction and human suffering on a massive scale. Just this morning, there is news of destruction and death caused by numerous tornadoes across the United States.

The panelists will also discuss what these disasters reveal about international law. While international law cannot control nature, can it mitigate its negative effects? In a recent book, Laws of Fear: Beyond the Precautionary Principle, Cass Sunstein has argued that the precautionary principle does not offer any guidance about how governments should respond to health, safety, of environmental risks. (1) While Sunstein's book deals with risks such as global warming, arsenic in drinking water, and genetically modified foods, his analysis may provide insight about how the international community and international law may appropriately respond to natural disasters. For example, to what extent, if at all, should cost-benefit analysis weigh in providing guidance on how to prepare for the next natural disaster? So Sunstein might ask: how much money and time is international society willing to pay for the kind of scientific research and expertise necessary to predict and finance effective warning systems? He suggests that responding to uncertain risks such as global warning should be preceded by a high level of certainty so that such a response does not divert resources from more pressing concerns--such as developing new technologies that might resolve occurring threats such as hunger.

Scientific inquiry should be pursued in a manner that reduces the burdens of the least advantaged members of society. Sunstein' s arguments are mostly restricted to national societies where there is a social compact and expectation for looking after the least advantaged. The responsibility to the least advantaged in other parts of the world calls for an expansion of this conception, as it would certainly be the humane thing to do to share such information with countries that cannot afford to contribute in getting the information. This information could be crucial for saving the lives of people who are vulnerable to natural disasters around the world, as is already happening, and as I am sure our panelists will be discussing.

International law seems relevant because it increases the ways in which we might think of responding to natural disasters beyond cost-benefit analysis. While there are monetizable costs of natural disasters, so are there non-monetizable costs that have no actual market price, but are no less significant--e.g., the destruction of human life, coral reefs, human physical and emotional suffering short of fatality, or the extinction of species.

On the question of asteroids, it is notable that Congress has mandated NASA to survey and characterize some Near Earth Asteroids in order to understand and mitigate the threat of impacts by such objects. In 2003 NASA estimated that ninety percent of the risk of unpredicted impacts from some Near Earth Asteroids could be eliminated by extending the Spaceguard survey it was conducting. Further congressional funding is being sought to enable this survey to enhance the capability to detect, characterize, and plan for threat mitigation.

The efforts that ought to be invested in detecting and mitigating asteroids raise the question of whether we could use analogies from international law to think about the obligations states have in this context. For example, states are regarded as having duties of vigilance and due diligence to prevent their territory from being used for purposes that contravene the rights and interests of other states. Perhaps these duties of diligence and due diligence could be expanded, not so much to provide mandatory obligations, but to provide the kind of hortatory and recommendatory guidance for governments and decision makers as they cooperate in seeking as much information as possible to alert ourselves to risks--without the kind of cognitive and other biases that scholars like Cass Sunstein have worried might undermine-well intentioned efforts to respond to risks.

I am looking forward to this conversation and learning from it. Our panelists will help to frame this issue better than I have attempted to in providing this background.

INTERNATIONAL DISASTER RELIEF: A GROWING REGULATORY DILEMMA

By David Fisher **

International disaster relief is something of a swashbuckler's paradise. With a scattered and under-used international legal regime and scant applicable law at the national level, it is little wonder that this field has been called "the world's largest unregulated industry." (1a)

Some states and humanitarian actors prefer it this way, hopeful that a lack of formal rules will provide them with maximum flexibility in the event of an emergency. Unfortunately, on the whole, this flexibility comes at a substantial price in preventable delays, expenses, and administrative barriers to relief operations, as well as enormous headaches for receiving states concerning the coordination and quality of the relief they receive.

While the international community has nevertheless managed to save the lives and restore the dignity of many disaster-affected people in the roughly 150 years since international humanitarian relief became a systematic reality, the costs of the lack of regulation are likely to be increasingly felt in the years to come if nothing is done to correct it. In my remarks I will explain why I think this is so, but also why there is reason to be optimistic that action will be taken in the near future.

GROWTH IN DISASTERS

To begin on a somewhat Cassandran note, natural disasters are on a steep rise worldwide. In the 1970s, there were 1,231 reported disasters. (2) That number has risen in every subsequent decade and, from 2000-2006 alone, it had reached 5,287. As a result of the effects of climate change, the scientific community assures us that this rising trend is likely to continue, with more extreme events, such as hurricanes, floods, droughts, and heat waves.

On the other hand, the trend in mortality from disasters is down. Deaths attributed to disasters fell from approximately 1.7 million in the 1970s to a little over 741,000 in the 1990s. As wonderful as this is, however, it does not necessarily make things easier from the point of view of humanitarian relief operations. Dead people do not require relief; living people who have lost their homes, property, communities, and livelihoods do. Their numbers are skyrocketing. In the 1970s, disasters affected a little over 780 million people. In the 1990s, they affected over 1.9 billion. From 2000-2006 alone, the figure was 1.7 billion. That is a little less than one third of the population of the entire planet.

Of course, the overwhelming majority of disasters are addressed entirely by domestic actors, including governments and national Red Cross and Red Crescent Societies. Still, these rising overall figures can only mean more need for international assistance as well. We have certainly seen this in our own work. In the 1970s, the International Federation of Red Cross and Red Crescent Societies issued 191 appeals for international disaster relief assistance. In the 1990s, that number increased to 595.

Thus, it is reasonable to assume that we will see increased "business" for international disaster relief in the coming years.

GROWTH OF THE INTERNATIONAL DISASTER RELIEF COMMUNITY

At the same time, the size and diversity of the international disaster relief community has been growing. At the turn of the twentieth century, only the International Red Cross/Red Crescent Movement, a handful of voluntary organizations, and some interested states regularly provided international relief in disaster situations outstripping domestic capacities. After World War II, these actors were joined by the United Nations and new non-governmental organizations. Particularly in the last few decades, and with the birth of the "CNN effect," the playing field has widened considerably.

The most explosive growth has been in the NGO sector. More and more, donor states are choosing to channel their disaster assistance through international NGOs rather than acting bilaterally. Moreover, the importance of private donations in international disaster response--much of which goes to NGOs--has also increased. It is now possible for several hundred international NGOs to respond to a single disaster, as occurred in Aceh after the 2004 tsunami.

We also see other players entering the field. Certain UN agencies, national Red Cross and Red Crescent Societies, and states that had previously not been particularly engaged in international disaster relief activities are now getting involved. Militaries and private companies are also increasingly keen on carving out a role for themselves in relief operations, and private individuals are sending record amounts of direct relief or even showing up personally at disaster sites.

COMMON REGULATORY PROBLEMS

This growth and new diversity of the international relief community is positive in many ways--generating new interest, funding, and energy toward assisting persons in need. However, it also magnifies regulatory challenges. Unfortunately, few states have existing domestic law or policy with any level of detail on handling international relief. As a result, relief operations are beset with border-crossing administrative problems that are greatly aggravated by the acute need for speed and reduced capacity of the receiving state. I will mention just a few examples.

Relief goods and supplies are frequently snarled in customs or charged large duties or tariffs. For instance, in Indonesia, over 4,000 containers of relief items were still in customs custody over a year after the 2004 tsunami, including food and medicines that perished. After the 1999 earthquake in Turkey, some relief goods awaiting customs clearance were abruptly nationalized after a statutory deadline related to abandonment of goods in customs was exceeded.

In significant part, these bottlenecks are related to the waves of ad hoc relief that are sent with the best of intentions but without a proper understanding of local needs. In every major disaster of 2005, for example, mountains of unwanted used clothes appeared around disaster areas. States are sometimes just as guilty of "supply-driven assistance." For example, after the 2004 tsunami in Indonesia, national authorities and the WHO pleaded with foreign governments to stop sending unneeded and expensive field hospitals, to little avail.

There is also frequently confusion on both sides as to what rules to apply in a disaster setting. For example, after Hurricane Katrina, the British army sent 500,000 "meals ready to eat" to the United States, pursuant to a list of needed items provided by the U.S. government. However, just as they were about to reach affected persons in New Orleans, the FDA realized that they contained British beef, which had been banned due to fears of mad cow disease.

Relief personnel also encounter problems with visas. Usually, these problems do not occur upon initial entry, as affected states tend to be liberal in either temporarily waiving visa requirements or granting tourist visas. However, this temporary status frequently expires in the midst of an operation. Thus, relief personnel are sometimes required to repeatedly leave and re-enter an affected country to renew their visas, at considerable expense.

Another major set of issues is linked to the lack of domestic legal status of foreign organizations, such as a humanitarian NGO. Without a recognized status under national law, they sometimes find that they cannot benefit from tax exemptions, sign contracts, hire staff, or open bank accounts. Taking up just the latter of these problems, the alarming solutions that many find are to travel with large amounts of cash or to open accounts in the personal names of staff members.

These problems primarily occur due to the operation of everyday laws in extraordinary settings. However, the situation is sometimes even worse when all bureaucratic barriers are dropped. States that have tried this approach have found themselves inundated with unneeded goods and good-faith organizations lacking proper training, resources, or even the means to house and feed themselves at a disaster site. They have also experienced abuse by commercial actors who seek to import goods for sale under the guise of relief.

THE EXISTING INTERNATIONAL LEGAL FRAMEWORK

Given the long tradition of international disaster assistance and the obvious types of legal problems it can raise, one would think that the international community would have sought to create a centralized system of international regulation comparable to the Geneva Conventions for armed conflict. The League of Nations attempted to do that when a 1927 treaty created the International Relief Union, which was meant to centralize both the funding and coordination of international disaster relief activities. However, the Union was never successful in raising necessary funds and foundered, like other League initiatives, on the shoals of World War II. Another attempt to develop a global treaty was made in 1984, but it died in committee at the United Nations.

As a result, the current international legal framework for disaster relief is scattered and incomplete, mainly characterized by isolated provisions in multilateral treaties focused on other sectors (such as on aviation, sea transport, and weapons control), some regional treaties, and a complex web of bilateral treaties and "soft law" instruments. There are some important treaties at the global level expressly focused on disasters, but they tend to be limited either in their thematic scope or geographic reach.

For example, the 1986 Convention on Assistance in the Event of a Nuclear Accident or Radiological Emergency has nearly 100 parties, but only deals with one kind of disaster and does not address non-state relief providers. Conversely, the 1998 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations has ground-breaking provisions on legal facilities and even immunities for relief personnel (including from the non-state sector), but only applies to the telecommunications aspect of relief operations and only has thirty-five parties.

Some of the most significant international instruments in this area are non-binding. These include documents focused on the quality of relief developed by the humanitarian community itself, such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief of 1994, and the Sphere Project Humanitarian and Minimum Standards in Disaster Response, as updated in 2004. While widely disseminated and used, the lack of any mechanisms for compliance limits the potential for these documents to deter the abuses that end up souring the image of the entire sector. Other potentially helpful soft-law instruments such as the Measures to Expedite International Relief, adopted by the UN General Assembly in 1977, have been essentially forgotten.

PROSPECTS FOR THE FUTURE

There are signs that states are feeling the need for stronger international norms and for better implementation of those already in existence. In the aftermath of the 2004 tsunami, member states of ASEAN adopted a new regional treaty responsive to many common legal problems. NATO members recently adopted a new memorandum of understanding on facilitation procedures for civil relief actions. In 2005, the United Nations began a process of humanitarian reform to improve coordination and cooperation mechanisms for humanitarian actors. Also in 2005, the Hyogo Framework for Action was adopted by more than 160 states, emphasizing the importance of legislation for disaster risk reduction and preparedness for relief. Moreover, last year, with the apparent approval of the United Nations' Sixth Committee, the International Law Commission placed this issue on its long-term calendar of projects.

For its part, the International Federation of Red Cross and Red Crescent Societies has been consulting widely with states, humanitarian actors, and legal experts on these issues, including through formal regional conferences. We hear increasing interest in addressing technical barriers and finding better ways to come to grips with the trends I mentioned earlier. Through this consultation process, the International Federation has begun developing a set of non-binding guidelines on domestic regulation and facilitation of international disaster assistance.

The guidelines will seek to encourage states to develop rules and procedures in such areas as customs, visas, and temporary registration of foreign humanitarian organizations before a disaster strikes, and to ensure a workable balance between easing access and ensuring coordination and quality. Our hope is to present the guidelines for adoption by states and the components of our movement at the 30th International Conference of the Red Cross and Red Crescent in November 2007.

There is thus good reason, despite the chequered history, to be optimistic that international norms can play a significant role in solving common problems of international disaster relief in the future. The active interest of the legal academy could be a great help in reaching this goal, and the International Federation would therefore invite ASIL members to engage with us in discussing this neglected area of international law.

* Professor Cohen and Dr. Lerner-Lam did not submit written remarks to the Proceedings.

([dagger]) Governor George E. Pataki Professor of International Commercial Law, Albany Law School.

(1) CASS SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE (2005).

** Senior Legal Research Officer, International Federation of Red Cross and Red Crescent Societies.

(1a) INTERNATIONAL FEDERATION OF RED CROSS AND RED CRESCENT SOCIETIES, WORLD DISASTERS REPORT 2005: FOCUS ON INFORMATION IN DISASTERS 93 (2005).

(2) All statistics cited here are derived from the EM-DAT: The OFDA/CRED International Disaster Database, Universite Catholique de Louvain, available at <http://www.em-dat.net>.