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YIDL Dialogues with Practitioners

Ms Adelina Kamal – Former Executive Director of the ASEAN Coordinating Centre for Humanitarian Assistance (AHA Centre)

In: Yearbook of International Disaster Law Online
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Tommaso Natoli
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Dug Cubie
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Dear Ms Kamal, thank you for accepting our invitation to be part of the first ‘Dialogue with Practitioners’ hosted by the Yearbook of International Disaster Law. The underlying idea behind this section is to connect the reflections on international disaster law (IDL) that form the Yearbook’s substance with developments underway in practice. We are convinced that this is a domain of study where keeping ‘a foot on the ground’ is the best way to ensure practical and realistic analysis of the law to enhance research impact.

You have had a remarkable and varied experience as a humanitarian since you started your career at the ASEAN Secretariat in 1994. You were appointed Head of the Disaster Management and Humanitarian Assistance Division and subsequently the Director for Sustainable Development, and in the period 2017–21, you joined the AHA Centre as its Executive Director. This year, the Thematic Section of the Yearbook explores the topic of ‘Regionalisation and Localisation of International Disaster Law’, and hence your perspectives and insights on the role of international law in the ASEAN context are of particular interest and relevance to our readers.

1) Let’s start from the beginning, what drew you to work for an international organisation such as ASEAN and, specifically, to contribute to the development of the ASEAN Agreement on Disaster Management and Emergency Response (AADMER) in 2004?

It was the idea of working with different nationalities and getting exposed to international work that drew me into ASEAN. I joined the ASEAN Secretariat in 1994 and helped setting up a new system for evaluating and managing ASEAN projects. I shifted my interest to environmental issues as our region experienced transboundary haze pollution in 1997–98, often cited as the biggest environmental disaster at that time. It was my first taste of catastrophic disasters and a difficult period for the region as we were suffering from the Asian financial crisis. I was then involved in the development, negotiation and implementation of the ASEAN Agreement on Transboundary Haze Pollution (AATHP).

In early 2004, the then Secretary-General of ASEAN Ong Keng Yong asked me to develop a disaster management portfolio which at that time was almost at an idle stage. Not many wanted to do it. It was considered unattractive, and got passed over from one unit to another! I am glad that I accepted that challenge, along with my colleagues in the Environment Division.

Our experience with the AATHP helped in revitalising the disaster management portfolio as it represented one of the key references in drafting the ASEAN Agreement on Disaster Management and Emergency Response (AADMER) in mid-2004.

When we were about to start the negotiation process of AADMER, the Indian Ocean tsunami hit Indonesia and neighbouring countries. It was a wake-up call not only for ASEAN but also for the world. The tsunami not only sped up AADMER’s negotiation process but also made the disaster management portfolio one of the most prominent areas of cooperation in ASEAN.

2) The AADMER represents an important example of a well-structured, comprehensive and multi-dimensional disaster law instrument, including provisions on risk reduction, preparedness and response phases. At the same time, it emphasises the importance of State ‘primacy’ as a prerequisite for its proper implementation, which has been characterised as a feature of the so-called ‘ASEAN-way’ to disaster law. What are your impressions on the impact of this legal instrument at the regional and member state levels over the past 18 years?

The AADMER is a manifestation of ASEAN’s solidarity, helping neighbours and making the region more self-sufficient. As a regional legal instrument, AADMER needs to be anchored on the State authorities but its positive impact should benefit the people. The principle of assistance under AADMER, which is based on the request made by the country affected by the disaster or its consent to offers of assistance by assisting entities, is in line with the tenets of international disaster law and relevant United Nations General Assembly Resolutions. This is not unique to ASEAN.

The impact of AADMER should be assessed by looking at its original intent and spirit. The intent was clear. The ASEAN countries wanted to help one another, and mobilise resources, assets and capacities across borders through regional arrangements. When the tsunami hit the region in December 2004 and the UN Hyogo Framework for Action was finalised in January 2005, AADMER’s scope was broadened to include reducing the risk of disasters and thus the damages and losses they can provoke.

As for its intent, the AADMER reflects not only what countries wanted to do, namely to help one another in times of disasters and to reduce losses from disasters, but is also based on practical experience in responding to and recovering from catastrophe. I still remember the atmosphere in the negotiation room. Everybody was so worried that there would be another big tsunami and we were all motivated to conclude the negotiation as soon as possible, and often stayed up over midnight. The fear of having another tsunami added a reality to the text.

Looking back, I believe that AADMER has achieved what the drafters and negotiators wanted to do. It was such a phenomenal effort that the ten ASEAN countries were able to negotiate, finalise and adopt a regional treaty within four months while responding to and recovering from a big disaster!

Fast forward to the present days, AADMER has not only allowed ASEAN to have a collective response, later coined as ‘One ASEAN One Response’,1 but also increased the importance of disaster risk reduction and preparedness in regional and national agendas. Compared to those days in early 2004, disaster management is now one of the most progressive areas of cooperation in ASEAN, and this is largely due to the AADMER.

To ensure its operationalisation, the AADMER has structured institutional arrangements, comprised of a ministerial body, a senior official committee on disaster management from ten ASEAN Member States, working groups, a Secretariat, and rolling five-year work programmes, whereby the ASEAN countries can work together among themselves but also with other sectors and stakeholders in the region and beyond, including the Red Cross and Red Crescent Movement. As part of this, the idea of the ASEAN Coordinating Centre for Humanitarian Assistance (AHA Centre) as the operational engine of AADMER, separate from the ASEAN Secretariat, came up during the four-month negotiation. The negotiators believed that full-time staff would be needed to turn the treaty into action.

To date, the AHA Centre has facilitated over 30 collective regional responses to disasters and contributed to building knowledge and leadership in the region and beyond. As one of the people that put the AHA Centre into the draft text of AADMER, I never imagined that I would get the privilege to lead the AHA Centre as its Executive Director 12 years later! The challenge now is to sustain the spirit and intent of AADMER and allow ourselves to evolve and adapt while operationalising the AADMER.

3) In May 2008, Cyclone Nargis dramatically struck Myanmar. This catastrophic event is considered a paradigm-setting one in the evolution of IDL, not only in the region but also globally. The initial reticence of Myanmar’s military regime to collaborate and accept the assistance offered by the international community provoked an intense debate, including in legal journals, on the collective responsibility of the international community to intervene for humanitarian reasons and the legality of such an approach.

Fortunately, ‘disaster diplomacy’ and consensus-building techniques led to a solution, and in particular thanks to the diplomacy of the then-ASEAN Secretary- General, Dr Surin Pitsuwan, who you supported directly. Many commenters wrote that, even if the AADMER was not yet in force at that time, its spirit of solidarity underpinned those frenetic weeks. What role do you think AADMER and a regional approach played in the Cyclone Nargis response?

ASEAN’s role in bridging the gap between Myanmar and the international community was indispensable. It served as the humanitarian bridge, but what ASEAN actually built was the bridge of trust, through an ASEAN-led mechanism that was non-political, needs-based and inclusive. That bridge was a neutral zone for relevant stakeholders to come together to strategise and expand the humanitarian space to reach the affected people.

ASEAN explored all available tools, including those that were still premature. In fact, while AADMER had not yet entered into force, Myanmar was already a Party to the AADMER, as it had ratified AADMER before the cyclone. So we highlighted this point when negotiating for the authorities to open up for international aid.

Under the AADMER, ASEAN already came up with a Standard Operating Procedure (called SASOP), which was activated to provide continuous updates on the situation and offer regional support. Also, the ASEAN Emergency Response and Assessment Team or ERAT was offered as part of the regional support under AADMER, to undertake rapid needs assessment in the affected areas. The ASEAN-ERAT was the forerunner for the bridging role that ASEAN eventually played in negotiating access. As the AHA Centre was not yet established, I led a team of experts from ASEAN countries and formed the first ERAT. Other foreign assessment teams were denied entry, but the Myanmar authorities agreed to let our team in. During the assessment, we worked with the UN and humanitarian partners. Then I personally brought our report to Dr Surin Pitsuwan, then Secretary-General of ASEAN, and the Foreign Ministers who were about to have a special meeting on Myanmar in Singapore.2

I was fortunate to witness first-hand the skilful diplomacy of Dr Surin but also the then Singaporean Foreign Minister George Yeo as Chair of ASEAN and the other Member States. Dr Surin presented the ERAT report and used our findings as the basis for his argument to establish an ASEAN-led humanitarian coalition. Myanmar was given three options: i) a UN-led mechanism for the response and recovery programmes; ii) an ASEAN-led mechanism with ASEAN facilitating Myanmar, and with the coalition partners supporting us; or iii) invoking the Responsibility-to-Protect where Myanmar would have to let the international community provide assistance without authorisation. The then Indonesian Foreign Minister Hassan Wirayuda was one of the strong voices, highlighting that the decision would show what ASEAN meant to Myanmar, and what Myanmar meant to ASEAN. Myanmar chose the middle option.3

The Foreign Ministers established the ASEAN Humanitarian Task Force, chaired by Dr Surin. I then helped Dr Surin in conceptualising a Yangon-based coordination group called the Tripartite Core Group, consisting of nine members from ASEAN, Myanmar and the UN. I served as one of the TCG members, tasked to facilitate international assistance in the cyclone-affected areas. Dr Surin also established an ASEAN office in Yangon, which I helped set up, with operational hubs in the delta. The ASEAN office worked closely with the Myanmar authorities and humanitarian partners on the ground for two years for both the response and recovery stages. This form of cooperation was new to ASEAN as we put in place an ASEAN-led coordination mechanism that was different from the usual practice. AADMER had still not entered into force, but we drew inspiration from it and mobilised everything under our sleeves to address the deadlock.

Looking back, there were three ingredients that made the work possible. First, a combination of humanitarian diplomacy, strong political pressure and bold leadership at the political level. Second, operational presence on the ground, working with a new and somehow unconventional mindset, namely different from how the international humanitarian system normally addressed these situations up to that moment. Third, strong support and resources from the ASEAN Member States, United Nations, and other humanitarian partners working with one purpose, i.e. saving lives and reducing the suffering of cyclone-affected people. When we concluded the operation in Myanmar in 2010, we used the experience in establishing the AHA Centre through a new dedicated Agreement in 2011, the form and functions of which were shaped by the two catastrophic disasters (the 2004 Tsunami and the 2008 Cyclone). It was timely as AADMER entered into force in December 2009.

4) Based on your experiences as a practitioner, is there a sort of ‘non- confrontational bargaining’ approach being adopted by ASEAN States, or are we seeing a change in how States prepare and respond to disasters, and in particular their willingness to offer and accept international assistance?

It depends on the circumstances. For a disaster caused by a natural hazard where there was no internal or cross-border conflict and the government authority is willing to help the people, a confrontational approach was almost never necessary. When your close neighbour is getting sick and hospitalised, you come to the hospital and offer some help but you should never insist on the time of the visit and the type of food you bring. AADMER was developed with that solidarity in mind. It is the country and the people that know best how to respond to and recover from disaster. The primary impacts of disasters, particularly those resulting from natural hazards, are always local.

When relationships and trust have been built, and the countries know what to expect from us, there is no need even for us to push them to accept assistance. They will ask for assistance but only based on needs, and they will take the lead. If the country is willing and able to manage the disaster, external parties including ASEAN, should only support it. We can prepare for this eventuality through contingency planning and humanitarian response plans so the response options are clear.

It’s more important to build resilience, reduce vulnerabilities and increase preparedness capacity before the disaster, so less support is needed from the international community when disaster strikes. It’s also important to build anticipatory actions and foresight capability so that the country and the communities are able to withstand any shocks. If external assistance is needed, it will only be to fill the gaps. Of course, these are less attractive because they do not get into the news as much as life-saving actions. But reducing vulnerabilities and enhancing our anticipatory abilities save more lives!

As countries have accumulated their experience and knowledge over the past decade, it has become clear that governments need to show their people that they are able to take the lead, and genuinely aim to help the people. However, if the authority is unable or unwilling to provide assistance to the affected people and if there is a clear violation of the ASEAN Charter as well as human rights and humanitarian principles, ASEAN at the highest level needs to apply tougher forms of diplomacy using all possible ASEAN mechanisms to get access and exert external pressures together with the United Nations and the international community. This could include the possibility to revise the Charter in order to allow for more incisive mechanisms in case of violation of victims’ fundamental rights and/or humanitarian principles, as in the case of other regional systems and organisations.

5) In regional institutional contexts, the adoption of normative and policy instruments crystallises the most relevant values and principles shared by their memberships. As the AHA Centre Executive Director, you were responsible for translating the ASEAN Leaders’ vision for ‘One ASEAN One Response’ and making ASEAN a global model of reference in disaster management. The activities undertaken in the aftermath of the 2018 tsunami in Central Sulawesi (Indonesia) represent a concrete application of AHA Agreement art. 4, listing the Centre’s functions. Do you see it as an isolated episode or a sign of ‘advancement through practice’ on these aspects?

It was a sign of advancement through practice. Almost all elements of the ‘One ASEAN One Response’ that had been built over the years were put into practice and tested in our response to the 2018 tsunami. However, the role of individuals behind the system and how much they are able to optimise the system could make a big difference. That requires leadership. No two disasters are alike, so creativity and a good understanding of the local context are required. Trust and relationship building are also big factors in the equation. If the system has been built but the people behind the system are not making use of them, then the One ASEAN One Response seen in our response following the 2018 tsunami could become just an isolated episode.

6) What are the main strengths of and possible areas for improvement in the current regional governance model in ASEAN in your opinion? For example, would the adoption of an additional protocol to AADMER favour its ‘to respond as one’ purposes?

I think that an amendment of AADMER or a protocol to AADMER is needed only when there are basic principles or major issues that could not be addressed through programmatic or operational derivatives. AADMER is currently implemented through five-year rolling AADMER work programmes, which I define as its ‘programmatic derivative’. It aims to operationalise AADMER into projects and activities, to incorporate new international frameworks and commitments (such as the Sendai Framework, Sustainable Development Goals, etc.), and allow the implementers to adapt to current challenges (such as climate crisis, localisation agenda, etc.). But there are also ‘operational derivatives’, such as the Standard Operating Procedures (SOP s) and contingency plans.

These derivatives allow for flexible operationalisation of AADMER because these can be developed and revised at the operational level, without the need for legal amendments and negotiations, as long as they are still in conformity with the current provisions of AADMER. In addition to these derivatives, the ASEAN Declaration on ‘One ASEAN One Response’ provides reinforcement to this notion to “respond as one”, and clarifies and strengthens the mechanisms under AADMER.

What is urgently needed is a consideration of whether the current trigger point in AADMER, i.e. request for assistance or consent to offers of assistance, shall continue to be the only trigger for collective regional responses. In view of the climate crisis and the fact that over 90% of annual disasters are climate-related disasters that can be anticipated and predicted, ASEAN should consider collective response ahead of time, and undertake actions before a natural hazard becomes too serious. This does not require a new protocol. It requires a change in the mindset, risk-based contingency planning and perhaps some additional SOP s to guide how the regional mechanisms under AADMER could support anticipatory actions. National authorities can do this supported by the AHA Centre and partners who are already working in the countries and those that have established pre-disaster arrangements. Of note, anticipatory actions are now being pursued4 as part of the AADMER Work Programme 2021–255 and the AHA Centre Work Plan 2025.6

However, especially in case of ‘complex emergencies’ in which a disaster occurs in a territory where political or conflict-induced crises are already ongoing, I see the urgent need for ASEAN to explore a new crisis mechanism to resolve situations where the de facto authority is not able and unwilling to provide humanitarian assistance to the affected people, restricts access and becomes the source of violence. I wrote about the need for this crisis mechanism in an Op-ed for the Jakarta Post in October 2021 and a policy brief for CSIS Indonesia in December 2021.7

7) As a final thought, how do you view the relationship between international and regional legal frameworks on disaster risk management? For instance, would the potential adoption of a global treaty based on the ILC Draft Articles on the ‘Protection of persons in the event of disasters’ would have a positive impact on it?

International frameworks can certainly inform the development and implementation of regional legal frameworks, and vice versa. Regional organisations such as ASEAN can consider these international frameworks but within regional contexts and realities. I see that some of the provisions set out in the ILC Draft Articles are already covered under AADMER and that AADMER is more comprehensive in many aspects. The current mechanisms and practices in ASEAN are actually quite advanced compared to those of other regional organisations.

However, it is interesting to see that the ILC Draft Articles suggest the inclusion of human dignity and human rights for protection of the people. These certainly can inform ASEAN’s ongoing work on protection of people in the event of disasters. ASEAN has adopted the ASEAN Regional Framework on Protection, Gender and Inclusion (PGI) in Disaster Management 2021–25 as part of the efforts to operationalise the AADMER Work Programme 2021–25.8

I also see the need for human rights and disaster management sectors in ASEAN to work more closely together. The right to protection should be advocated before the disaster, not only after. There shouldn’t be a dichotomy between the two as they both champion the protection of the people. While convergence may be difficult, we can find complementarities, such as through dialogues to see to what degree humanitarians and disaster managers are upholding not only need-based but also right-based response.

When it comes to complex emergencies, solutions also need to be more than a humanitarian sticking plaster to address immediate life-saving needs. Addressing long-term, structural problems that caused the crisis in the first place or those that constrained the response must also be prioritised. This would mean focusing on resolution of the crisis through working closely with the political security sector to advise them of what is needed to enable principled access and make humanitarian action possible.

Enhanced coordination between ASEAN sectors and pillars is necessary in order to, in future, have clear early warning triggers, promote upstream actions to mitigate the possibility of escalation and downstream action to address drivers of complex emergencies and address immediate needs – be they humanitarian, developmental or political in nature. There is also a need for identification of other tools and mechanisms beyond AADMER, such as those handling human rights, protection of women and children, transnational crime, post-conflict peace-building and resolution, that can be utilised for these eventualities, and what structural gaps and capacity needs that should be addressed. This could be certainly facilitated through a revision of the ASEAN Charter so that ASEAN can collectively monitor, prevent and resolve triggering factors, and optimise and strengthen the role and mandate of ASEAN bodies, centres and entities to support such a crisis mechanism.9

Thank you Ms Kamal, and good luck with your work.

Thanks, same to you!

1

See the ‘ASEAN Declaration on ONE ASEAN, ONE RESPONSE: ASEAN Responding to Disasters as One in The Region and Outside The Region’, adopted at the 28th ASEAN Summit in Vientiane, Lao PDR on 6 September 2016, available at <https://asean.org/wp-content/uploads/2016/09/Declaration-on-One-ASEAN-One-Response.pdf> (last accessed, as any subsequent URL, on 2 January 2023).

2

See ‘Cyclone Nargis, Myanmar: ASEAN emergency rapid assessment team mission report’ (9–18 May 2008), available at <https://reliefweb.int/report/myanmar/cyclone-nargis-myanmar-asean-emergency-rapid-assessment-team-mission-report-09-18-may>.

3

See ASEAN Secretariat, ‘Compassion in Action: The Story of the ASEAN-Led Coordination in Myanmar’ (August 2010) available at <https://asean.org/book/compassion-in-action-the-story-of-the-asean-led-coordination-in-myanmar-2/>.

4

See ASEAN Framework on Anticipatory Action in Disaster Management, Jakarta, ASEAN Secretariat, June 2022, available at <https://asean.org/book/asean-framework-on-anticipatory-action-in-disaster-management-2/>.

5

See ASEAN Agreement on Disaster Management and Emergency Response (AADMER) Work Programme 2021–2025, Jakarta, ASEAN Secretariat, December 2020, available at <https://asean.org/wp-content/uploads/2021/08/AADMER-Work-Programme-2021-2025.pdf>.

7

See Adelina Kamal, ‘An “Inconvenient” ASEAN-led Approach to the Myanmar Crisis’ in Delivering Humanitarian Assistance To Myanmar – Roles and Options for Regional Actors (Policy Brief, December 2021) 12–18, available at <https://mail.csis.or.id/publications/delivering-humanitarian-assistance-to-myanmar-roles-and-options-for-regional-actors>.

8

See ASEAN Secretariat, ASEAN Regional Framework on Protection, Gender, and Inclusion in Disaster Management 2021–2025 (ARF-PGI), October 2021, available at <https://asean.org/book/asean-regional-framework-on-protection-gender-and-inclusion-in-disaster-management-2021-2025-arf-pgi/>.

9

For more on this, see: Adelina Kamal, ‘Crisis Management in ASEAN: A Case for Transformative Leadership’ in ASEANFocus – ISEAS-Yusof Ishak Institute (29 March 2022) 8–11, available at <https://www.iseas.edu.sg/wp-content/uploads/2022/03/ASEANFocus-Mar-2022-Final-LR-V2.pdf>.

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