1 IDRLâwhy?
In response to the increasing threats derivative of catastrophes and natural disasters, as well as the level of social demands addressed to states to more effectively prevent and perform rescue operations in such crises, states (individually and collectively) have acted to create IDRL norms and institutions for their implementation.
Among the factors leading to this increase in threats of catastrophes and natural disasters is globalisation. In the case of infectious diseases (a natural disaster), globalisation facilitates and accelerates the cross-border movement of pathogens. The increasing risk of catastrophes is connected, among others, with the move of industries to developing countries. In those countries, the lack of or restrictions on infrastructure (and pursuit of cost efficiencies) in conjunction with weak laws enable placing industrial installations (including dangerous ones) in the centres of large populations but where the cities or states are also unprepared to respond adequately to a catastrophic event. The Bhopal disaster was one such case (see: Mandavilli, 2018).
Simultaneously, globalisation has raised expectations of these same states to achieve a desired standard for preventing and responding to catastrophes and natural disasters. The âCNN effectâ is the idea that information about crises immediately reaches people in different parts of the world (see: Robinson, 1999; Mooney and Evans, 2007, pp. 27â28). The recipients of that information then demand a proportional response to the scale of the humanitarian challenge. The manifestations of globalisation indicate duplication of ties, from production to social relations.
The capability of particular states to prevent catastrophes and perform rescue operations in the case of such events or natural disasters is, however, restricted by the availability of resources (Bruntland, 2003). Even in the case of the wealthiest states where their material resources potentially allow them to stand ready to perform a rescue operation, it is justified and necessary to ask the question about the rationality of keeping up with the increasing costs of maximal readiness with regard to risk considered to be low (see: Bostrom and CirkoviÄ, 2008, pp. 1â29; Avin et al., 2018). States have recognised that a rational response to the globalisation of challenges is universal cooperation (US Ambassador Richard Holbrooke on 10 January 2000 pushed for the first discussion of HIV and AIDS in the UN Security Council; see McInnes and Rushton, 2010). States have established international cooperation both in direct relations and through international institutions. Cooperation in the field of international disaster response is an element of the implementation of the obligation directly contained in Article 1 of the UN Charter âThe Purposes of the United Nations are: ⊠3. To achieve international co-operation in solving international problems of ⊠humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for allâ (United Nations, 1945).
A condition of such cooperation was (and is) the necessity to create the needed legal and institutional norms, thus there exists a loophole (lack of laws). The evidence of the existence of this loophole in the sphere of regulation of IDRL are works on the protection of persons in the event of disasters by the International Law Commission, which resulted in the adoption of draft articles in 2016 (United Nations, 2016). These works also indicate the capability of states to meet the challenge of the loophole. Particularly effective is the cooperation of states and other international actors in international forums, such as IGOs and NGOs. The IGOs in this case are specialised UN agencies, while for NGOs, a special role has been played by the International Federation of Red Cross and Red Crescent Societies (IFRC). The result of international cooperation is IDRL and its implementation.
2 IDRLâterm and norms
IDRL âis a descriptive term for the various legal and other instruments applicable to the international disaster responseâ (International Federation of Red Cross and Red Crescent Societies, 2003). The catalogue of IDRL norms co-create both the norms of international law as well as the soft law norms, binding and non-binding norms. It comprises multi-, pluri- and bilateral treaties, resolutions and declarations of the IGOs and NGOs, operational guidelines, and codes of conduct. IDRL norms regulate the access, facilitation, coordination, quality, and accountability of international disaster response activities in times of non-conflict related disasters, which includes preparedness for imminent disaster and the performance of rescue and humanitarian assistance activities. IDRL norms create both regulation that is substantively closed as well as that which is part of broader regulations (De Guttry, 2012, p. 6).
Treaties are the cornerstone of contemporary IDRL: the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (International Atomic Energy Agency, 1986) and the 1998 Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations (United Nations, 1998). However, the patterns of the cooperation are rooted in nineteenth-century international sanitary conferences to negotiate agreements to combat the cross-border spread of diseases. At the turn of the nineteenth to the twentieth century, in multilateral telegraph and telecommunications treaties, which were adopted with specific provisions about emergency communications and maritime agreements, codifying customary norms on rescue and assistance to vessels in distress were reached. These regulations were of a fragmentary or episodic character, but they indicated the direction of the creation and implementation of IDRL.
The Convention of 1986 was developed in response to the Chernobyl disaster, as it seems the trauma of that event propelled the Convention to enter into force already by 10 March 1987 (about 6 months after its signature). Poland signed it on 26 September 1986 and ratified it on 24 March 1988 as the last state of the Eastern Bloc to do so. Poland, like others in the bloc, raised reservations with regard to Article 13.2, i.e., the jurisdiction of the ICJ. It took longer to await the entry into force of the Tampere Convention, which came on 8 January 2005. In the case of the Tampere Convention, it was also signed by fewer states (60) and fewer states are parties (49) than in the case of the Convention from 1986 (121 states-parties). Poland signed the Tampere Convention on 18 June 1998, but it has not ratified it even today. Poland is not an exception among the EU and NATO members, with those still remaining âoutside the Conventionâ including the US, Germany, and Italy.
The process of creating the network of bilateral and plurilateral agreements has proceeded substantially faster and more intensively compared to multilateral ones. In the 1990s, a practice of concluding agreements in Europe was developed that included the provision and/or facilitation of assistance in times of natural or technological disaster. The matter of IDRL was also regulated with respect to Europe through agreements concluded under the auspices of the EU, NATO, and UN Economic Commission for Europe. The model of European bilateral agreements was gradually created. The treaty regulations in Europe originated from the agreements of the 1950s drawn up in response to specific needs. The next stage comprised treaties between neighbouring countries, an example of which is the Convention on mutual assistance between French and Spanish fire and emergency services (14 July 1959; United Nations, 1959).
The practice of concluding bilateral treaties accelerated in the 1970s. Western European states concluded agreements on disaster response, including the Convention on Mutual Assistance in the Event of Disasters or Serious Accidents (3 February 1977, FranceâGermany; United Nations, 1977).
Agreements concluded after 1989 by Poland and the states of Central and Eastern Europe are, in this area, next-generation agreements; in contemporary agreements between the states of this region, IDRL was not subject to regulation. Simultaneously, agreements concluded in Central and Eastern Europe were followed neither by traités-contrats nor the institutionalisation of cooperation. Additionally, a characteristic of these agreements is the differentiation of norms. With regard to norms, they differ not only between the states, but the practice within each state in the region is different. Such agreements-norms do not create a model, and specific regulations seem accidental, not model-like.
Poland has regulated cooperation in relation to catastrophes and natural disasters in numerous bilateral agreements (mainly with its neighbours). An example of such regulation is Article 17 of the PolishâGerman Treaty on Good Neighbourliness and Friendly Cooperation of 1991: âThe Contracting Parties shall co-operate to grant each other mutual assistance in the event of disasters and serious accidents.â (Treaty Between the Republic of Poland and the Federal Republic of Germany on Good Neighbourliness and Friendly Cooperation, 1992). Similar content is seen in Articles 17.1 of the Treaty Between the Republic of Poland and Ukraine on Good Neighbourliness, Friendly Relations and Cooperation (1993), 11.2 with Russia (Treaty Between the Republic of Poland and Russian Federation on Friendly and Good Neighbourly Cooperation, 1993), 12.1 with the Czech and Slovak federative republics (Agreement Between the Republic of Poland and the Czech and Slovak Federative Republic on Good Neighbourliness, Solidarity and Friendly Cooperation, 1992), 22 with Lithuania (Treaty Between the Republic of Poland and the Republic of Lithuania on Friendly Relations and Good Neighbourly Cooperation, 1995) and 10.4 with Estonia (Treaty Between the Republic of Poland and the Republic of Estonia on Friendly Cooperation and Baltic Neighbourliness, 1993). Poland is party to agreements on cooperation on protection against âtechnological and natural disastersâ with, e.g., Croatia, Czechia, France, Germany, Hungary, Lithuania, Russia, Slovakia, and Ukraine. Poland also developed cross-border cooperation with German LĂ€nders: Brandenburg, Mecklenburg, Free State of Saxony.
The most far-reaching regulations are included in the PolishâBelarusian Treaty (Articles 21, 23; Treaty Between the Republic of Poland and the Republic of Belarus on Good Neighbourliness and Friendly Cooperation, 1993) and the PolishâBelarusian Declaration of 1991; directly referring to the Chernobyl disaster, they encouraged the creation and implementation of IDRL at bilateral, regional, and global levels. The norms in the treaty and declaration with Belarus indicated the desired direction of the development of IDRL. What prevented it and the creation, on their basis, of a model of regulation in Central and Eastern Europe (and even potential proliferation outside the region) were, it seems, issues of a political nature.
Western European bilateral and plurilateral cooperation was reinforced due to moving it at the regional level; in 1987, the European Council resolved to set up a multilateral Cooperation Group for the prevention of and protection against disasters.
The cooperation of NATO member states is enhanced. The adoption of procedures through âNATO Cooperation for Disaster Assistance in Peacetime (1953)â began setting the norms and institutionalising the cooperation.1 In 1998, NATO adopted the policy âEnhanced Practical Cooperation in the Field of International Disaster Reliefâ and established the Euro-Atlantic Disaster Response Coordination Centre. Poland participates in these areas with its EU and NATO partners.
IDRL cooperation is not limited to Europe. However, the regulation of cooperation via norms and their implementation differs substantially by region. In response to the Indian Ocean earthquake and tsunami (2004), the ASEAN states in 2004 adopted the Declaration on Action to Strengthen Emergency Relief, Rehabilitation, Reconstruction and Prevention in the Aftermath of Earthquake and Tsunami Disaster (Association of Southeast A...
