Report of the Workshop held24 July 2015

Faculty of LawUNSW Australia

Australian Human Rights CentreFaculty of Law, UNSW Australia

Faculty of Law, University of Technology SydneyInternational Federation of Red Cross and Red Crescent Societies

Australian Red Cross

Disasters and International Law in the Asia-Pacific Workshop

UNSW Law, UNSW Australia

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Acknowledgements

This workshop was made possible due to funding provided by the UNSW Law workshop scheme awarded in 2014, as well as additional funding provided by UNSW Law and the IFRC. We would like to extend our appreciation to Patrick Deane, Australian Red Cross intern, who took charge of workshop participation registration and communications, and assisted in organising travel and accommodation, and provided input into the program. Diane Macdonald of the Australian Human Rights Centre was official photographer and designed and formatted the call for papers, workshop program, and this report. In addition, she assisted in arranging travel, accommodation, and venue. Aline Jaeckel kindly kept a record of the presentations and discussion, and Jasmine Opdam assisted in preparing this report. We are also grateful to our co-organisers, the IFRC and the Australian Red Cross, for their support and assistance, as well as to the speakers and chairs for their excellent presentations, and the participants for their thoughtful comments and questions.

Patrick Deane

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Executive Summary

The Asia-Pacific region is the most disaster-prone region in the world and has in recent years witnessed the devastating human and economic impacts of catastrophic disasters, including the Nepal earthquake in 2015, Cyclone Pam also in 2015 and super-typhoon Haiyan (Yolanda) which struck the Philippines in 2013. In light of the increased frequency and severity of disasters occurring as a result of climate change, there is a clear need for better coordination and regional co-operation in emergency response, preparedness and prevention, particularly in a region as diverse as the Asia-Pacific with countries at varying stages of development and varying institutional and economic strength. The international community has expressed its commitment to disaster risk reduction with the Sendai Framework for Disaster Risk Reduction 2015-2030, adopted by UN Member States on 18 March 2015, which seeks to build resilience, reduce vulnerability and strengthen global partnerships in disaster response. International disaster law, with its patchwork of global, regional and bilateral treaties and guidelines, has a key role to play; however, an interdisciplinary approach is essential in responding to disaster situations. Knowledge sharing and capacity-building requires collaboration between government, international organisations, civil society and academia.

This report details the proceedings and outcomes of an expert workshop on Disasters and International Law in the Asia-Pacific held at the University of New South Wales on 24 July 2015. The workshop aimed to bring together practitioners, including those working in government, NGOs and international organisations, as well as academics and researchers, to discuss current issues relating to disasters and international law in the Asia-Pacific region. The workshop also aimed to develop a network for cooperation and discussion concerning international law and disasters in the Asia-Pacific region.

The workshop provided a forum for discussion on how effectively to disseminate information about best practice within the region and beyond. The four panel sessions considered: the practical operation of disaster laws and strategies for increasing community engagement in decision-making processes; the international legal framework for the delivery of disaster relief; the effectiveness of transnational networks and informal relationships in responding to disasters; and the interaction between international disaster law and international human rights law, particularly in the way disasters disproportionately affect women and persons with disabilities. Case studies of Cyclone Pam in Vanuatu, the Nepal earthquake and super-typhoon Haiyan in the Philippines highlighted areas of strength within disaster law and practice, and identified areas for development in the Asia-Pacific region.

Keynote addresses were given by Ms Fine Tu’itupou-Arnold, Secretary-General of the Cook Islands Red Cross, and Dr Jesus ‘Gary’ Domingo, from the Ministry of Foreign Affairs and Trade in the Philippines. Ms Tu’itupou-Arnold highlighted the challenges faced by small Pacific Island States that are particularly vulnerable to the impacts of disasters and often lack the human and financial resources to implement disaster law and strategy. Ms Tu’itupou-Arnold considered the potential of community groups to respond to disasters and advocated for a grassroots approach to disaster management that builds local capacity and engages communities in decision-making processes. Dr Domingo discussed the role of foreign ministries in disaster response and management and the diplomatic negotiation required to manage international assistance and personnel while maintaining positive relationships with deploying States and agencies. Dr Domingo emphasised the importance of a paradigm shift towards preparedness and mitigation, which includes strengthening the capacity and resources of local governments prior to the advent of a disaster.

The workshop identified several challenges for practitioners and governments in implementing effective disaster risk reduction and management strategies in the Asia-Pacific. Challenges include: the discord between international frameworks and national plans; the provision of unsolicited and unnecessary foreign assistance; resource and capacity constraints, particularly in remote communities; the sidelining of local governments by foreign agencies in disaster situations; negotiating ad hoc legal arrangements for the deployment of disaster relief personnel to avoid breaching international law and afford appropriate privileges and immunities to those personnel; ensuring that international disaster law addresses the particular vulnerabilities of women, persons with disabilities and the elderly; and building meaningful and

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representative local participation in decision-making processes.

Participants in the workshop also highlighted a range of opportunities, including: the potential for international disaster law to access funds from the climate change regime; building informal and transnational networks to respond more effectively to disasters; the use of international human rights law to provide standards of scrutiny and facilitate humanitarian assistance; the potential for further engagement and capacity-building for local communities, with the aid of guides and best practice guidelines; and reviewing and consolidating the network of regional agencies in order to streamline international assistance and allow for more coordinated disaster response at the local, national and regional levels.

Context

Background

The Disasters and International Law in the Asia-Pacific workshop was organised with the support of the Faculty of Law and the Australian Human Rights Centre, UNSW Australia, together with the International Federation of Red Cross and Red Crescent Societies (Asia Pacific), the Australian Red Cross and the University of Technology Sydney.

The workshop brought together a group of practitioners, including those working in government, NGOs and international organisations, as well as academics and researchers, to discuss current issues relating to disasters and international law in the Asia-Pacific region. It was the first such workshop of which the organisers are aware to focus on the Asia-Pacific region.

Agenda

The program included panels on disaster arrangements in the Pacific and in Asia, disaster risk and human rights in disasters. Each panel was followed by questions and discussion of opportunities and challenges for disasters and international law in the Asia-Pacific.

The agenda is annexed at page 14.

Speakers, Chairs and Organisers

Speakers and chairs included legal practitioners from the United Nations High Commissioner for Refugees, representatives of the Red Cross Red Crescent movement and NGOs across the Asia-Pacific region, members of government departments in Nepal, the Philippines and Australia, and academics from the University of Canterbury, Australian National University, Macquarie University, University of Technology Sydney and UNSW Australia.

A list speakers and panel chairs is annexed at page 15.

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Workshop Review

Welcome

Professor David Dixon, Dean of Law at the University of New South Wales, and Ms Gabrielle Emery, on behalf of the International Federation of the Red Cross and Red Crescent Societies, welcomed participants to the workshop. Professor Dixon emphasised the importance of the workshop as the first of its kind to focus on the Asia-Pacific, a region which is particularly vulnerable to disaster. Ms Emery highlighted the need for collaboration between international organisations, NGOs, academia, civil society and government leadership to tackle disaster situations in the region.

Keynote Address – Ms Fine Tu’itupou-Arnold

A. Introduction

Associate Professor Sarah Williams introduced Ms Fine Tu’itupou-Arnold, the Secretary-General of the Cook Islands Red Cross, who has undertaken a legal analysis of disaster preparedness in the Cook Islands.

B. Keynote Address

Ms Tu’itupou-Arnold provided some personal reflections on the importance of custom and tradition in the Pacific and the central role that communities should play in disaster management. The Pacific region is already seeing the effects of climate change; the region registered the largest number of people affected by disasters over the last decade. The financial costs of such disasters disproportionately impact Pacific Island states, as small economies are at greater risk of being crippled by disasters. Cyclone Pam in Vanuatu cost the economy US$22.5 million, and the Cook Islands can expect losses of approximately $7 million per year over the next 50 years due to cyclones.

Pacific states have focused on creating disaster management strategies; however, they struggle to implement these strategies and laws effectively. In her study of disaster law and management across the Pacific Islands, Ms Tu’itupou-Arnold found that although the Cook Islands developed a disaster plan in 2009, this plan was abandoned when a major cyclone hit in 2010. In disaster situations, the most effective management has come from local communities, because the government often lacks the necessary human and financial resources.

Ms Fine Tu’itupou-Arnold, the Secretary-General of the Cook Islands Red Cross (left) and Dean David Dixon

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While the law can be a useful tool in disaster response management, in many micro-States in the Pacific Islands there is insufficient human capacity to enforce the existing laws and insufficient financial resources to implement these laws, as climate change resilience programmes are often underfunded. Very few countries in the Pacific have integrated disaster risk management principles into their national legislation across all sectors and states are limited in how they can respond to disasters due to the remoteness of many locations in the Pacific. Disaster law must be moved into the mainstream in order to gain public support for laws that are often seen as extreme measures. However, a top-down legislative approach carries the risk that laws will not be implemented, or that external consultants will propose solutions that do not adequately cater to the Pacific Islands.

The Pacific has a strong history of self-reliance and community responsiveness, and many communities will seek to respond to disasters on a local level if they receive adequate support from the government. Local capacity is needed to respond effectively to disasters and communities should be included in decision-making processes. A bottom-up approach will ensure that disaster law is sensitive to local communities and their capacity. Any proposed disaster management strategy must incorporate local custom and traditions and build on existing decision-making structures within the community.

C. Questions and Discussion

Ms Tu’itupou-Arnold’s keynote stimulated discussion of strategies to engage local communities. It was argued that laws and policies proposed by external consultants without local engagement will ultimately fail in the face of community opposition. Informal mechanisms such as churches within each local community must be understood and mobilised to develop solutions, while trusted community leaders have the potential to educate the community in remote areas in the absence of experienced practitioners and academics.

Panel 1 – Disaster Management in the Pacific

A. Introduction

The first panel discussed the operation of disaster laws on a practical level and the impact of these laws, or the lack thereof, on responses to Cyclone Pam in Vanuatu. Strategies for increasing community engagement in decision-making processes and better coordinating international and domestic responses were central to the discussion.

Chair: Ms Finau Limuloa

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B. Anthony Blake, “Operationalising Disaster Law and Frameworks in the Pacific”

Mr Blake identified foreign aid as a key challenge for disaster response, as preconceived response plans can be ill-equipped for the needs of the State in question and insensitive to local behaviours. Despite calls for faster responses in times of crisis, this would require a constant NGO presence which may in fact place a greater burden on the State. Mr Blake noted that the arrival of foreign aid organisations often excludes the government from decision-making processes.

Mr Blake discussed Cyclone Pam in Vanuatu as a case study in which the control centre included mainly foreign aid workers operating under the cluster system, which did not align with the local system. Although the government of Vanuatu had devised a plan for coordinating relief and response, this plan was not implemented in practice and the coordination structure caused great confusion. He concluded that existing domestic systems within each country should be built upon rather than ignored in times of crisis, and local governments should retain control over the disaster response process.

C. Rebecca Barber, “One Size Doesn’t Fit All: Tailoring the International Response to the Need following Vanuatu’s Cyclone Pam”

Ms Barber outlined the legal and institutional framework for disaster management in Vanuatu, which includes Vanuatu Humanitarian Team and national structures for humanitarian coordination. Again, the rapid influx of international actors was identified as a challenge that had not been anticipated in the disaster response planning process, resulting in a lack of alignment between international tools and services for humanitarian response and domestic structures. Ms Barber said that the situation highlighted the importance of supporting national governments to strengthen their domestic laws and policies in order to better facilitate foreign assistance and coordinate aid through formal channels. Ms Barber recommended that UN agencies working through the Inter-Agency Standing Committee and the Pacific Humanitarian Team formally acknowledge the role of national governments in leading disaster responses, in place of the current assumption, seen throughout many international planning documents despite rhetoric to the contrary, that UN actors will lead the response.

D. Questions and Discussion

This panel raised a number of questions, primarily concerning the discord between legal frameworks and their practical implementation. The response to Cyclone Pam in Vanuatu demonstrated that a comprehensive or over-prepared plan is not necessarily implemented in practice in the case of disaster. The issue of building codes was discussed as an example of policies being mismatched with the available resources. In Vanuatu, the building code is based on codes from Australia and New Zealand but appropriate building materials are not available so the code fails to reflect local needs, while in Fiji the building code applies only in cities and not in rural areas. On this point, Ms Tu’itupou-Arnold noted that the economic

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standard of Pacific Island countries is a barrier to complying with strong building codes; however, reviewing these codes in order to align them with local capacity and resources imposes further financial burdens on local governments.

One participant raised the prospect of developing a guide for Pacific Island countries, similar to those used in Australia and New Zealand, outlining points of contact for particular circumstances. Ms Barber expressed regret that Vanuatu, a risk-prone state, only received international attention following a large-scale disaster. While NGOs in Vanuatu worked well with the government, there were no clear structures in place, so a guide for international responders would be helpful. Mr Blake agreed that a more centralised response was necessary, as there were three different websites concurrently providing information about the disaster response in Vanuatu.

Panel 2 – Managing Risk

A. Introduction

The second panel discussed the international legal framework for the delivery of disaster relief. Key issues included the challenge of negotiating ad hoc agreements for the deployment of personnel to disaster-affected States, and the potential for disaster risk management programs to access funding allocated to the climate change regime.

Chair: Professor Anthony Zwi

B. Paul Govind, “Financing Disaster Risk Reduction (DRR) in light of the recent Sendai Framework for Disaster Risk Reduction”

Mr Govind highlighted the nexus between climate change law and disaster law, which could allow for considerable funding from the climate change regime. However, while ‘resilience’ is used in both climate change and disaster law discourse, the term does not have the same meaning in both fields, and it is unclear whether projects dedicated to disaster risk reduction will have the necessary characteristics to align with the goal of climate change adaptation. The Sustainable Development Goals will crystallise linkages between environmental law and disaster law and other regimes, which could allow disaster programs to access funds allocated to climate change issues. At an operational level, it is encouraging that resilience is increasingly being incorporated into climate change documents such as the negotiating text for the UN Framework Convention on Climate Change Conference of the Parties to be held in Paris in December 2015.

C. Elizabeth Toomey, “Current issues in post-earthquake Christchurch – Crown acquisition of land and insurance woes”

Professor Toomey discussed the challenges that have arisen in the wake of the Christchurch earthquake. The Earthquake Commission was forced to expand rapidly and to hire staff with various levels of expertise to assess damage for the purposes of insurance claims. Affected uninsured land (either because it is bare land or simply has not been insured) has been the focus of extensive litigation in 2014. Professor Toomey raised two significant issues: firstly, extensive litigation stemming from inconsistent court decisions regarding the amount that insurers must pay to homeowners; and secondly, the renting of “as is, where is” properties to tenants.

D. Jane McCosker, “Deployment of Personnel in the Event of a Disaster – Legal Issues”

Ms McCosker outlined the legal issues arising from States directly assisting other States through the provision of civilian or military personnel in the wake of a disaster. She explained that unless a State has a clear legal basis for its deployment of personnel, it could breach the prohibition on the use of force (if deploying military personnel) or the territorial integrity of the receiving State. The legal framework for the

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deployment would need to include consent from the receiving State; at present, there is no viable basis in international law for deployment in situations where a receiving State does not consent to international aid. Ms McCosker also highlighted the importance of privileges and immunities for personnel, particularly regarding exemptions from visa requirements and import restrictions, in order for disaster relief actions to be possible. As the bilateral arrangements regulating the deployment of personnel are often negotiated ad hoc and under great time pressures, it is important that both the deploying State and the receiving State understand their obligations under international law and the risks for deploying or receiving personnel across jurisdictions.

E. Questions and Discussion

The panellists received questions from participants, particularly regarding the concept of resilience and its interaction with climate change law. Mr Govind pointed out that the language in the Sendai Framework envisages the UN Framework Convention on Climate Change becoming the centrepiece for climate change, sustainable development and disaster law. However, he explained that some concepts do not apply to both the conceptual and operational phases and not all of the legal frameworks in this field are binding. There was a short discussion about the concept of resilience as ‘bouncing back’ after a disaster, and the difficulty of returning to the status quo in the wake of a disaster. Participants welcomed Mr Govind’s suggestion of ‘bouncing forward’ instead, using the disaster as a learning opportunity to improve response management frameworks before the next disaster.

In response to a suggestion that States negotiate deployment agreements in advance so as to ensure the rapid deployment of personnel, Ms McCosker explained that Australia has several standing ‘status of forces’ agreements. However, given that every disaster is different and requires a specialised response, there are definite advantages in negotiating ad hoc arrangements.

Keynote Address – Dr Jesus ‘Gary’ Domingo

A. Introduction

Dr Gabrielle Simm introduced Dr Jesus ‘Gary’ Domingo from the Department of Foreign Affairs, Office of United Nations & International Organisations - the Philippines to discuss the role of foreign ministries in the emerging nexus of international disaster law, including disaster response and reconstruction.

B. Keynote Address

Dr Domingo commenced his address with a brief background of the current legal framework for responding to disaster related issues in the Philippines. The National Disaster Risk Reduction and Management (NDRRM) Law was passed in 2010, followed by the establishment of the NDRRM Council (NDRRMC), an inter-agency coordinative body headed by the Ministry of Defence. The complementary Climate Change Act was passed in 2009, and the Climate Change Commission was established. This reflects the Philippines’ shift from a disaster response to a holistic approach to disaster risk reduction and management, incorporating mitigation, preparedness, response and recovery. While the Philippines NDRRM operates at national, regional, provincial, city and municipal levels of coordination, local government units are the ‘front line’ of disaster risk reduction and management.

Dr Domingo explained that despite the Philippines’ holistic approach, the legal framework prioritises disaster response, while the ‘recovery’ pillar remains underdeveloped. This presented problems in the wake of super-typhoon Haiyan/Yolanda. He highlighted the necessity of a paradigm shift towards mitigation and preparedness, which involves strengthening the capacity of local government units and giving them greater flexibility to manage their resources and allocate funds pre-disaster, rather than requiring a disaster to trigger access to particular funds.

Using super-typhoon Haiyan in November 2013 as a case study, Dr Domingo emphasised the importance

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of timeliness, clarity and consistency in communicating needs to aid providers, in order to avoid extensive and unsolicited assistance. He likened the foreign aid response to Haiyan to ‘disaster tourism’ – supply-driven assistance in the form of personnel, equipment, supplies and money from the donors, UN, regional bodies and civil society, which was often inappropriate or unsolicited. The diplomatic refusal of aid posed a great challenge, in addition to negotiating ad hoc arrangements with States for the deployment of military personnel while observing the laws, protocols and policies of the Philippines. This often required diplomatic compromise, with military personnel agreeing to leave arms in their vessel in exchange for military escorts while conducting operations in Philippines territory.

Dr Domingo concluded with several challenges and recommendations. He noted that the Philippines is currently reviewing its legal framework for disasters, with the aim of being self-reliant. This could be achieved by strengthening regional capacity to respond to disasters, such as tasking ASEAN with the coordination of international assistance to disasters in the Asia-Pacific. Dr Domingo discussed a research and advocacy agenda, including mapping various multilateral and regional frameworks and agencies in order to understand their functions and streamline their effectiveness. It is also critical to map the relationship between international disaster law and other frameworks such as international humanitarian law, international criminal law, human rights, displacement, climate change and development.

C. Questions and Discussion

The participants had a range of questions for Dr Domingo concerning the role of foreign ministries in disaster management. In response to a question about why foreign assistance was provided to the Philippines before the government formally requested it, Dr Domingo explained that the Philippines’ system is based on self-reliance, so other States often try to respond by offering aid without a request. While nearly all national disaster systems have trigger mechanisms, the declaration of a state of emergency is not necessarily required for domestic disaster systems to be triggered.

When asked whether other foreign ministries have the capacity to respond to disasters in the way the Philippines has, Dr Domingo acknowledged that not all countries have been subject to major disasters. Nonetheless, it may still be useful for States in the region to learn from the experiences of neighbouring States such as the Philippines.

Panel 3 – Disaster Management Arrangements in Asia

A. Introduction

This panel highlighted the effectiveness of transnational networks and informal mechanisms in responding to disasters, and discussed the potential of close interpersonal relationships to ensure a coordinated regional response rather than building on disaster law and treaties. The example of Nepal in the wake of the earthquake also highlighted the necessity of tailoring foreign assistance to the needs of the local community.

Chair: Professor Andrew Byrnes

B. Rajendra Thapa, “Nepal’s experience with earthquake operations – legal issues”

Mr Thapa examined the legal problems for the effective disaster relief process following the Nepal earthquake. While the government had several laws and guidelines relevant to disaster situations in place, which had authorised the Central Disaster Response Committee to make necessary decisions and recommendations to the government, Nepal was not adequately prepared for such a large-scale disaster. Mr Thapa described the chaos generated by the influx of over 100 organisations, in circumstances where it was not clear which government body was responsible for the coordination of such international assistance. Due to this confusion, most of the goods and equipment provided were found to be of less importance there was a shortage of essential goods and services. Some disaster volunteers who lacked official licences and permits faced difficulties in obtaining entry visas, while other personnel faced difficulties in clearing

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goods through customs because of the relevance of their expertise and goods for the disaster response. Mr Thapa emphasised the importance of guidelines regulating the coordination of multinational assistance and imposing accountability for the actions of the organisations involved, particularly in protecting the human rights of the marginalised and vulnerable population while responding to the disaster.

C. Luke Brown, “Regional efforts to strengthen rapid disaster response cooperation”

Mr Brown reflected on the importance of strengthening relationships between states in the region, suggesting that this may be more important than developing disaster law as a new field of law. He noted that while Australia has been sharing the lessons it has learned from disaster response with the Asia-Pacific region, a major disaster in Australia today would test every element of the government’s highly sophisticated system. Mr Brown pointed to a disaster response tool kit for States that has been developed under the auspices of the East Asia Summit as a ‘soft-law tool’, which is crucial for building trust and establishing close relationships prior to the advent of a disaster.

D. Michael Eburn, “Regional arrangements in the Asia-Pacific”

Associate Professor Eburn questioned the necessity of a legal framework for responding to disasters, and emphasised that much of the collaboration between governments and NGOs or local fire services is based on pre-existing relationships, rather than treaties or binding agreements. Inherent in the definition of a ‘plan’ is that these arrangements are made in advance and often do not work in disasters, so it may be futile to expect compliance with a plan when experience shows that communities are unlikely to follow a plan in times of crisis. There are already numerous capacity building alliances in the region, including the Pacific Islands Emergency Management Alliance and training collaborations between fire services in Australia and New Zealand with services in small Pacific Island states, which are founded on relationships rather than legal frameworks. NGOs arise out of necessity and are able to provide key assistance in disaster regions without being subject to international law, and many local fire services prioritise their actions in disasters according to the needs of the community without reference to the law.

E. Mary Picard, “Exploring the capacity of the Mekong River Commission to reduce water related disaster in participating states”

Dr Picard reflected on the potential capacity of the Mekong River Commission (MRC) to govern slow-onset water-related disasters, rather than the sudden-onset disasters discussed by the other panellists. The MRC was established primarily to cooperatively develop the region through hydro-electrical projects and other exploitation of the Mekong’s resources. Dr Picard identified significant challenges faced by the MRC, including its inability to control domestic decisions such as the building of dams, and the lack of veto rights for participating States affected by major river projects, as well as the lack of participation by states in the upper river basin. The MRC now plays a positive role in flood warning, as floods still cause disasters along the river, and also facilitates an annual controlled flood to maintain the health of the ecosystem. However, the MRC’s current focus on short-term economic development, to the exclusion of future challenges such as climate change, population growth and protection of water quality, could contribute to the long-term disasters of food insecurity, lack of access to clean water, and water scarcity, in the Mekong basin. Dr Picard noted that the political constraints are understandable, given that the MRC is an institution of member State governments which have different interests, but that the mandate of the MRC is broad enough to encompass long-term disaster risk reduction if the participating States choose to make it a priority.

F. Questions and Discussion

The participants expressed concern with overreliance on trust and relationships, particularly in the context of working with a multitude of actors with varying intentions and motivations. Associate Professor Eburn acknowledged the risk inherent in this suggestion, and proposed that disaster law can operate in conjunction with relationships as a safeguard in case the trust between actors is breached. However, he noted that perhaps domestic contract law is more appropriate for this purpose than international law.

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Panel 4 – Disasters and Human Rights

A. Introduction

This panel considered the overlap between international disaster law and international human rights law, particularly in the way disasters disproportionately affect women, older people and persons with disabilities.

Chair: Alexandra Marsh

B. Andrew Byrnes, “Human rights perspectives on disasters: gender, disability and age”

Professor Byrnes reflected that explicit discussion of human rights had been largely absent from the discussion of international disaster law at an operational level, yet gender, disability and age produce particular vulnerabilities in disaster situations. The majority of casualties in disasters are over the age of 65, and evacuating persons with disabilities presents particular challenges which were identified in the Sendai Framework for Disaster Risk Reduction 2015-2030.

Professor Byrnes outlined the current provisions of international human rights law that explicitly address disaster situations, such as the 2006 UN Convention on the Rights of Persons with Disabilities and the 2015 OAS Convention on Protecting the Human Rights of Older Persons, which both address humanitarian emergencies. International human rights law has the potential to contribute to the management of disasters by setting standards of scrutiny and government conduct. It can also identify patterns of social exclusion that governments and international agencies should seek to address in preparations for and in the aftermath of a disaster.

C. Andrea Cullinan, “Unequal Challenges, Equal Rights: How disasters are always gendered”

Ms Cullinan identified the enormous challenges faced by women who are disproportionately affected by disasters, being 14 times more likely to die in disasters than men, often excluded from decision-making, and particularly vulnerable to human trafficking in the breakdown of the rule of law. She attributed this heightened vulnerability to the significantly higher proportion of women living in poverty and the restrictions inherent in women’s socially constructed roles. Women are less likely to own land, have fewer opportunities than men to access education, women often have caring responsibilities which limit their movement, and they have less access to resources, from health care to social networks to secure housing and employment. Ms Cullinan emphasised the potential of international disaster law to build human rights capacity if researchers recognise and prioritise the issue of gendered impacts and ensure gender sensitivity in their consultations with local communities, including a commitment to consulting directly with women as key stakeholders, in order to ensure that any research identifies, targets and addresses the specific and unique effects of disasters on women.

D. Tamara Wood, “Protecting persons displaced in the context of disasters: legal and conceptual challenges”

Ms Wood observed that international law is not currently tailored to address cross-border displacement arising from disasters. Temporary protection for persons displaced in the context of disasters is often ad hoc and discretionary. Ms Wood gave the example of the temporary protection visas granted to all Haitians residing in the United States following the earthquake in Haiti. The Nansen Initiative is an intergovernmental consultative process aimed at developing a protection agenda to build consensus on key elements to protect people displaced by disasters. However, a number of challenges will need to be addressed in the development of any legal mechanisms to address disaster-related displacement. These include: how to identify disaster displaced persons; how to deal with pre-emptive movement; managing disaster displacement within mixed migration flows; and questions of institutional responsibility. In the Asia-Pacific region, a range of state and non-state actors may become increasingly relevant.

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E. Questions and Discussion

The discussion following this panel focused on the practical implementation of the approaches proposed by the panellists. In response to a question about the legal protections afforded to persons when crossing borders, Ms Wood reinforced the need for international regulation of cross-border displaced persons, as discretionary-based domestic systems will not suffice. Regarding the engagement of men and boys in disaster responses, Ms Cullinan agreed on the importance of finding male champions or community leaders to promote messages of women’s rights. She highlighted that this was indeed a growing area of women’s human rights work.

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Agenda

Disasters and International Law in the Asia-PacificStaff Common RoomUNSW Law Building

9:15 – 17:30

9:15 – 9:30 Welcome

David Dixon (Dean, UNSW Law)Gabrielle Emery (International Federation of the Red Cross and Red Crescent Societies, Asia Pacific)

9:30 – 10:15 Keynote Address: Fine Tu’itupou-Arnold (Secretary-General, Cook Islands Red Cross)‘Extreme events need extreme measures? The Pacific, disasters and legal measures’Chair: Sarah Williams (UNSW Law)

10:15 – 11:00 Panel 1 – Disaster Management in the PacificAnthony Blake (Secretariat of the Pacific Community), ‘Operationalising Disaster Law and Frameworks in the Pacific’ Rebecca Barber (Save the Children Australia), ‘One Size Doesn’t Fit All: Tailoring the International Response to the Need following Vanuatu’s Cyclone Pam’ Chair: Finau Limuloa (IFRC, Regional Office for the Pacific)

11:00 – 11:30 Tea / coffee break

11:30 – 12:45 Panel 2 – Managing RiskPaul Govind (Macquarie University), ‘Financing Disaster Risk Reduction (DRR) in light of the recent Sendai Framework for Disaster Risk Reduction’ Elizabeth Toomey (University of Canterbury), ‘Current issues in post-earthquake Christchurch - Crown acquisition of land and insurance woes’ Jane McCosker (Office of International Law, Australian Attorney-General’s Dept), ‘Deployment of Personnel in the Event of a Disaster – Legal Issues’ Chair: Anthony Zwi (UNSW Faculty of Arts and Social Sciences)

12:45 – 13:30 Lunch

13:30 – 14:15 KEYNOTE ADDRESS: DR JESUS ‘GARY’ DOMINGO (DEPARTMENT OF FOREIGN AFFAIRS, OFFICE OF UNITED NATIONS & INTERNATIONAL ORGANISATIONS, THE PHILIPPINES)‘The Role of Foreign Ministries in IDL Development: The Philippine Case’Chair: Gabrielle Simm (UTS Faculty of Law)

14:15 – 15:30 Panel 3 – Disaster Management Arrangements in AsiaRajendra Thapa (Undersecretary of Law, Ministry of Foreign Affairs, Nepal), ‘Nepal’s experience with earthquake operations—legal issues’ Luke Brown (Emergency Management Australia), ‘Regional efforts to strengthen rapid disaster response cooperation’ Michael Eburn (ANU), ‘Regional arrangements in the Asia-Pacific’ Mary Picard, ‘Exploring the capacity of the Mekong River Commission to reduce water related disaster in participating states’ Chair: Andrew Byrnes (Australian Human Rights Centre, UNSW Law)

15:30 – 15:45 Tea / coffee break

15:45 – 17:00 Panel 4 – Disasters and Human RightsAndrew Byrnes (Australian Human Rights Centre, UNSW Law), ‘Human rights perspectives on disasters: gender, disability and age’ Andrea Cullinan (UNHCR), ‘Unequal Challenges, Equal Rights: How Disasters are Always Gendered’ Tamara Wood (UNSW), ‘Protecting persons displaced in the context of disasters: legal and conceptual challenges’ Chair: Alexandra Marsh (Office of the Inspector-General Emergency Management, Queensland)

17:00 – 17:30 Roundtable Discussion: Opportunities and Challenges for Disasters and International Law in the Asia-Pa-cificChairs: Gabrielle Emery and Sarah Williams

17:30 – 18:30 Drinks

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Speakers, Chairs and Organisers

Name Position / OrganisationRebecca Barber Save the Children AustraliaAnthony Blake Secretariat of the Pacific CommunityLuke Brown Emergency Management AustraliaAndrew Byrnes Australian Human Rights Centre, UNSW LawAndrea Cullinan UNHCRDavid Dixon Dean, UNSW LawDr Jesus ‘Gary’ Domingo Department of Foreign Affairs, Office of United Nations &

International Organisations, the PhilippinesMichael Eburn ANU College of LawGabrielle Emery International Federation of Red Cross and Red Crescent

Societies, Asia PacificPaul Govind Macquarie Law School Finau Limuloa IFRC, Regional Office for the PacificAlexandra Marsh Office of the Inspector-General Emergency Management,

QueenslandJane McCosker Office of International Law, Australian Attorney-General’s

DepartmentMary Picard ConsultantGabrielle Simm UTS Faculty of LawRajendra Thapa Undersecretary of Law, Ministry of Foreign Affairs, NepalElizabeth Toomey University of CanterburyFine Tu’itupou-Arnold Secretary-General, Cook Islands Red CrossSarah Williams Australian Human Rights Centre, UNSW LawTamara Wood UNSW LawAnthony Zwi UNSW Faculty of Arts and Social Sciences

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