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International Disaster Law at the Domestic Level: Honduras

In: Yearbook of International Disaster Law Online
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Sophie Teyssier
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1 Introduction

As in many other areas such as trade and investment, and as in other disasters’ prone regions such as Asia Pacific, regionalism in the Americas is on the rise regarding disaster risk management. This is particularly true in the Caribbean and in Central America. As pointed out in 2013 by the Brookings Institution – London School of Economics Project on Internal Displacement,1 “among the reasons that may explain this trend, is that interventions of regional organisations may be considered politically more acceptable and reactive than international ones while regions see value in working together to prevent and respond to disasters occurring in a member state and having regional consequences. And for governments with less capacity, regional organisations may play an important role in responding to smaller-scale disasters that do not trigger major media coverage and international funding”.

Since Hurricane Mitch that devastated Central America in October 1998,2 Central American countries developed and consolidated a robust policy framework for comprehensive disaster risk management informed by best practices to facilitate the shipment, transit and receipt of international humanitarian aid and assistance across the region. But despite these efforts, responses to disasters since then have highlighted implementation challenges at both regional and national levels.

With the objective of responding to these gaps, in November 2020, Honduras pioneered International Disaster Response Law (IDRL) by enacting the first IDRL Law ever adopted in the Americas. The law was adopted by the Congress on extraordinary session held on 10 November 2020 and endorsed by the Honduran President on 14 November 2020. The law was adopted amid Category 4 Hurricane Eta, which struck Central America on 3 November 2020. In Honduras, Eta affected more than four million people out of a total population of 9 million, increasing vulnerabilities already exacerbated by the COVID-19 pandemic, and raising the level of poverty of the country by 10%, which reached up to 70% of the population in 2021.3 Two weeks later, Category 5 hurricane Iota worsened the situation in areas already affected by Eta, causing flash floods, river floods, and landslides.4 In total, hurricanes Eta and Iota affected 7.5 million people in Central America. Guatemala, Honduras, and Nicaragua declared states of emergency in at-risk departments and made official international-level requests for humanitarian and financial aid to support and intensify the response to these emergencies.

Like its Central American neighbours, Honduras is one the most exposed countries to climate-related disasters worldwide.5 Between 1995 and 2015, it ranked among the top three most affected countries by the impacts of weather- related loss events.6

This vulnerability has been recognised for many years, especially since 1998 Category 5 Hurricane Mitch. This vulnerability and exposure to disasters was the rationale for the Central American Integration System (Sistema de Integración Centroamericana (SICA)) countries7 to adopt the Central American Policy on Comprehensive Disaster Risk Management (“PCGIR”, as per the Spanish acronym) and a comprehensive Regional Response Mechanism (known as the “MecReg”) by the Centre for Disasters’ Prevention in Central America and the Dominican Republic (CEPREDENAC).

This vulnerability was also the rationale for the International Red Cross and Red Crescent Societies (IFRC) Americas Disaster Law and Honduran Red Cross to launch in 2016 an IDRL Project in Honduras, with the objective of fostering law reform in that regard. A policy assessment against the benchmark of the IFRC Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (known as the “IDRL Guidelines”) was carried out to identify strengths and gaps and formulate policy recommendations for improvement. Among the recommendations that emerged was the development of a stand-alone IDRL instrument, that would be based on the IFRC IDRL Model Law, to comprehensively address all IDRL issues recurrently faced in previous disaster responses. The adoption in November 2020 of the IDRL Law was the culmination of many years of research and humanitarian diplomacy efforts deployed by the Honduran Permanent Contingencies Commission (Comisión Permanente de ContingenciasCOPECO”) and the Honduran Red Cross, with the support of the IFRC.

Since the 2020 IDRL Law only entered into force in November 2020, this article will review its structure and operation over the course of 2021 as it has enhanced the Honduran policy framework for incoming disaster relief. However, before we can examine the 2020 IDRL Law in section 2, it is important first to understand the regional framework established by the SICA-CEPREDENAC Policy Framework for Comprehensive Disaster Risk Management, which greatly informed the development of the Honduran domestic policy framework and that the 2020 IDRL Law further consolidates.

2 International Disaster Response in Honduras: the “Blueprint” of the SICA-CEPREDENAC Policy Framework for Comprehensive Disaster Risk Management

In 1993, the Organization of Central American States established the Central American Integration System (SICA) to foster economic cooperation and integration among the six Central American countries, as well as with Belize and the Dominican Republic.

Within the SICA, Central American countries have step-by-step adopted a quite comprehensive regional policy framework to facilitate and regulate incoming regional disaster relief:

  1. The Central American Policy Framework for Comprehensive DRM and the SICA-CEPREDENAC Regional Response Mechanism (the “MecReg”), translated into the Honduran legal and institutional framework through special guidelines that orientate the action of the different authorities involved in the management of international disaster responses;

  2. The Unified Customs Code for Central America (the “CAUCA”) and its Regulation (the “RECAUCA”), which provide special rules for incoming humanitarian aid;

  3. The Central American Visa adopted by El Salvador, Guatemala, Honduras, and Nicaragua (knowns as the “C-4” countries) which provides for certain migration facilities for international humanitarian actors – both regimes (customs and migration) being directly applicable at the domestic level; and

  4. The Regional Logistics Center for Humanitarian Assistance (CLRAH) in Panama to improve and streamline logistics capacities of governments and international organisations operating in Latin America and in the Caribbean.

2.1 Central American Policy Framework for Comprehensive Disaster Risk Management

2.1.1 The Central American Policy on Comprehensive Disaster Risk Management (“PCGIR”): a Tool to Translate the Sendai Framework for DRR 2015–2030 at Regional and National Levels

The PCGIR was initially adopted in 2010 by Central American Heads of Governments to provide a logical framework that would guide Central American countries in their efforts to reduce risks of disasters and foster comprehensive disaster risk management towards a more resilient Central America. It was revised in 2016 with the objective to align it with the United Nations Sendai Framework for DRR 2015–2030 and the United Nations Sustainable Development Goals (SDGs).

As per the Priority 4 of the Sendai Framework, i.e. “Enhancing disaster preparedness for effective response and to ‘Build Back Better’”, Priority 4 of the PCGIR promotes the consolidation of the Regional Response Mechanism for Humanitarian Assistance in case of Disasters (known as the SICA-CEPREDENAC “MecReg”), implemented in each Central American country through special operational Guidelines for the establishment and functioning of one-stop-shop units within both the Civil Protection Systems’ Centers of Emergency Operations (CEO) and the Chanceries, and respectively known as “the CCAH/CCAHI/CATAI Guidelines” and “the Chancery Guidelines”.

2.1.2 The Regional Mechanism for International Disaster Relief (SICA-CEPREDENAC “MecReg”) and Its Incorporation into the Honduran Policy Framework

The MecReg is the instrument Central American countries apply to respond to a disaster affecting one or more countries across the region when national coping capacities are exceeded, and international humanitarian assistance requested. The need for a regional response mechanism was felt in October 1998 with Hurricane Mitch, the second-deadliest Atlantic hurricane on record. The first version of the MecReg was adopted in 2001. Since then, it has been periodically revised and updated considering lessons learned from past disasters’ responses and international best practices.

The MecReg is informed and guided by several principles, standards, and international instruments, including the humanitarian principles of neutrality, impartiality, independence, and no-discrimination, the Red Cross Code of Conduct, the Sphere Standards,8 the International Search and Rescue Advisory Group Guidelines (INSARAG Guidelines), the Tampere Convention, the Sendai Framework for DRR 2015–2030 and, the IFRC IDRL Guidelines.

The MecReg sets guidelines to be incorporated by Central American countries into their domestic policy frameworks regarding: (i) the institutional coordination among authorities involved in DRM; and (ii) operational procedures. This structure is the one applied in Honduras.

2.1.2.1 Institutional Coordination

As per the MecReg, Honduras established “special units” or one-stop-shops, respectively within the Ministry of Foreign Affairs and within the Office for Risk Management and Contingencies (COPECO)’s Emergency Operations Center (EOC), i.e., the Coordination Center for the Coordination of International Humanitarian Aid and Assistance (Centro de Coordinación de la Asistencia y la Ayuda Humanitaria Internacional) (CCAHI), to manage offers of international humanitarian aid and assistance. These special units activate following a declaration of state of emergency, disaster, or public calamity.

Within the Ministry of Foreign Affairs, the one-stop-shop is responsible to request international humanitarian assistance through the diplomatic channels and based on the needs assessment issued by COPECO9 EOC. It is also responsible to examine, accept and manage offers from the international community.

Within COPECO EOC, the CCAHI is responsible for determining whether international humanitarian aid and assistance is needed, based on the evaluation of damages and the assessment of needs. When it considers humanitarian assistance as needed, it is responsible for preparing the list of needs to be transmitted to the international community and donors by the Ministry of Foreign Affairs, along with the request for international humanitarian assistance and aid. The CCAHI is also responsible for coordinating with the different authorities (health, migration, food security, etc.) and facilitating the entry and distribution of humanitarian aid and assistance by international donors.

2.1.2.2 Operational Coordination

The MecReg provides for the establishment of an accreditation system to recognise and allow Specialized National Teams (SNT) to operate across the SICA region within the MecReg – with the CEPREDENAC Council of Representatives being the entity granting the accreditation.

Each SNT has its own expertise in three areas of focus: (a) emergency response; (b) damage and needs analysis and (c) sectoral response (health, water supply, logistics, telecommunication, shelter, etc.). SNT can be deployed at the request of an affected state (based on official notification to CEPREDENAC issued by the competent authority and following the procedures of the Ministry of Foreign Affairs and CCAH Guidelines) within 24 hours. They can operate for a period of 7 to 10 days. They can set up a Central American Task Force.10

2.2 The Customs Regime for International Disaster Relief

The Law establishing the National System for Disaster Risks’ Management (Sistema Nacional de Gestión de Riesgo de Desastre) (SINAGER), which sets the general framework for disaster risk management, does not provide for special customs facilities for incoming disaster relief, mainly found in the CCAHI Guidelines.

Outside of the CCAHI Guidelines, facilities are found in the Central American Customs Code (CAUCA) and its Regulation (RECAUCA).11

Though they do not provide for specific tax exemptions on the importation of relief goods, they do provide for simplified and expedited procedures to speed up customs clearance and which consist of: (a) priority treatment at customs of disaster relief goods – speeding up the clearance process and thus time in customs; (b) minimum inspection requirements limited to “visto bueno” of the customs official (no opening of containers); (c) minimum requirements for the entry of medicines and food limited to preserve the fiscal interest.12

2.2.1 The Migration Regime for International Disaster Assistance

In 2005, El Salvador, Guatemala, Honduras y Nicaragua (the four Central American countries knowns as the “CA-4”) adopted the Central American Visa Agreement which provides for certain migration facilities for international humanitarian actors, and specifically visa exemptions for: (a) humanitarian actors nationals of a CA-4 country; (b) international humanitarian actors residents in a CA-4 country; (c) certain international humanitarian actors.13

At the domestic level, the Honduran Law on Migration and Aliens no. 208- 2003 provides for the granting within a month of a temporary visa for up to five years to foreign volunteers providing humanitarian services (art. 59). Also, its Regulation provides for the exemption of visa requirements to be granted for up to five years at the discretion of the Dirección General de Migración y Extranjería to foreigners operating in Honduras for humanitarian reasons in the case of an emergency (art. 110).

2.2.2 The Regional Logistics Center for Humanitarian Assistance (CLRAH)

Panama took advantage of its privileged geographical position (much less exposed to natural disasters than its neighbors while in close proximity to them) and create in 2018 a regional logistics and humanitarian hub to house disaster relief items and facilitate the operations of the four main humanitarian aid agencies in Latin America and the Caribbean, i.e. the United Nations Humanitarian Response Depot (UNHRD), World Food Programme (WFP), International Federation of the Red Cross (IFRC) and the Spanish Agency for International Development Cooperation (AECID). The hub improves and streamlines the logistics capacities of governments and international agencies operating in the region while fostering greater coordination to respond efficiently to emergencies across Latin America and the Caribbean.

3 The 2020 Honduran IDRL Law

The IDRL Law adopted through Decree no. 147–2020 on 11 November 2020 represents an important step further towards an enhanced policy framework for incoming disaster relief in Honduras. This section will briefly review the structure and content of the law, before providing some conclusions on the impact it has had over the course of 2021.

3.1 Purpose (Art. 1)

The law seeks to further expand and enhance the existing mechanisms described above (1) to respond to disasters, emergencies and other humanitarian crisis while harmonizing and unifying operational standard procedures and further defining institutional roles and responsibilities for the management of international disaster relief.

3.2 Scope (Art. 1)

An important added value of the law is that it applies regardless of whether the humanitarian aid and assistance come from the region, or outside Central American, and regardless of whether it comes from a country or an organisation, as opposed to the MecReg applicable only for relief items coming from Central American countries. This allows therefore expanding the benefits of the standard operational procedures and the scope of the MecReg and CCAHI and Chancery Guidelines beyond regional responses.

As set out in the IDRL Guidelines, the law specifies that it does not apply to situations of armed conflicts, which are governed by International Humanitarian Law (IHL).

3.3 Core Guiding Principles for Humanitarian Action (Art. 3)

The humanitarian action must be founded in the humanitarian principles of humanity, impartiality, operational independence, and neutrality, as endorsed by the United Nations General Assembly Resolutions 46/182 of 1991 and 58/114 of 2004. These principles, institutionalised in the Code of Conduct for the International Red Cross and Red Crescent Movement, guide the actions of the Honduran Red Cross which greatly influenced the content of the law and led the advocacy efforts for its adoption along with IFRC Americas Disaster Law and COPECO.

The law also enshrines the principle of complementarity of the aid provided, recognising that it is primarily the responsibility of the Honduran State to respond to the needs of the affected communities on its territory.

The law also enshrines two additional principles: the need for the aid to be mindful and respectful of the cultural specificities, and the protection of the personal data of the affected communities.

3.4 Initiation and Termination of International Humanitarian Aid and Assistance (Art. 4)

Based on the IDRL Guidelines principle that “disaster relief or initial recovery assistance should be initiated on the basis of an appeal” of the affected State (art. 10.1 of the IDRL Guidelines), the CCAHI Guidelines condition the initiation of international disaster relief operations to a formal request to be issued by the Honduran Ministry of Foreign Affairs (section 2, “Solicitud de asistancia humanitaria internacional”, CCAHI Guidelines).

This formal request is, as in most countries of the world, conditioned by a declaration of disaster or state of emergency or public calamity of the President of Honduras, in accordance with art. 42 of the SINAGER Law (section 1.2, “Activacion del CCAHI”, CCAHI Guidelines) and provided that the catastrophic event exceeds the national coping capacities.

The IDRL Law “innovates” and brings more flexibility as to what triggers the initiation of international disaster response. Indeed, under the new law, the initiation of international disaster relief is conditioned by the mere acceptance of the same by Honduras, i.e. the Ministry of Foreign Affairs, after consultation of COPECO (art. 4.1(e) of the IDRL Law). In other words, the declaration of disaster – which is often perceived by affected countries as entailing politization effects or negative economic impacts – is no longer a prerequisite. Neither is there any longer a need for a formal request of international humanitarian assistance.14

This “innovative” provision echoes the spirit of the 2016 International Law Commission (ILC) “Draft Articles on the Protection of Persons in the Event of Disasters”,15 grounded in the fundamental value of solidarity in international relations and the importance of strengthening international cooperation in respect of all phases of a disaster (Preamble of the Draft articles). During the different national workshops held under the leadership of COPECO, the Honduran Red Cross and the IFRC throughout 2019 to revise with all key stakeholders the content of the law, this provision had been extensively debated, mirroring similar debates around art. 11 of the Draft Articles relating to the duty of the Affected State to seek humanitarian assistance when its national coping capacities are manifestly surpassed by a disaster.16 Supporters of the IDRL law considered it as one of the salient features and added value of the law to avoid reluctance of the government to request humanitarian aid and assistance.

The decision to terminate the international disaster relief period is to be made by the Head of the Executive Branch, considering the actual needs assessment of COPECO and in consultation with international humanitarian actors.

3.5 Facilitation of the Red Cross and Red Crescent Movement and United Nations Agencies’ Respective Operations

The law expressly and clearly recognizes the auxiliary role to national authorities in the humanitarian field of the Honduran Red Cross and its ability to request support of any other components of the Red Cross and Red Crescent Movement, based on the Principles and Rules for Humanitarian Aid and Assistance of the Red Cross and Red Crescent. The same facility applies to the United Nations system.

3.6 The Institutionalisation of an “IDRL” Working Group (Art. 6)

The law formally establishes an IDRL Working Group responsible to act as a one-stop-shop (“ventanilla unica”) to support the authorities to facilitate the entry of international disaster relief during emergencies.

As a permanent institutional body, its function is to develop and propose policies, plans, programmes, protocols, and projects that aim at regulating and facilitating international disaster relief coordination and operations in accordance with the Honduran policy framework.

This IDRL Working Group is made up of: COPECO, as chair; representatives from the respective Ministries of Foreign Affairs; Migration, Customs; Finances; Health; the Humanitarian Network; IFRC; and Honduran Red Cross as auxiliary to the public authorities in the humanitarian field.

Throughout 2021 and 2022, this IDRL Working Group has been working on the development of the IDRL Regulation Proposal (the instrument operationalizing the IDRL Law) expected to be adopted at ministerial level in 2023.

3.7 Legal Facilities (Art. 7)

Based on the IDRL Guidelines, the law recognises the principle of legal facilities to be granted to eligible humanitarian actors in relation to migration, labour, customs, taxes, etc.

As recommended by the IDRL Guidelines, the law innovates by providing for the establishment of an “eligibility” criterion to be defined by COPECO in coordination with the Honduran Secretaries of State Governance, Justice, and the Ministry of Foreign Affairs to identify those humanitarian actors who should be entitled to the IDRL facilities. Those entities are also responsible for developing a simplified accreditation system.

3.8 Obligations of Eligible Humanitarian Actors

The law provides for COPECO to monitor the action and operations of the international actors who might be requested to submit regular or punctual reports regarding their operations.

While they are requested to comply with the Honduran legal and institutional framework, the Ministry of Foreign Affairs may take sanctions in case of violation.

3.9 Transitory Provisions to Respond to Hurricane Eta (in Effect until End of June 2021)

Among the transitory provisions to respond to hurricane Eta, the law allowed the Customs Administration to exempt humanitarian aid from all indirect taxes on the importation and storage of humanitarian supplies (art. 8). It also requested the Customs Regulation Agency (ARSA) and the Servicio Nacional de Sanidad Agropecuaria (SENASA) to adopt immediately standard operational procedures that allowed expedited clearance and provided a priority treatment of humanitarian aid (art. 12).

Moreover, the law provided for the Finance Administration (Secretaría de Estado en el Despacho de Finanzas (SEFIN)) to exempt humanitarian aid from the payment of the “TGR1” (art. 8), as well as from the registration requirement within the Register on “Exempted persons”, non-profit organisations, churches, and charities (art. 10).

3.10 IDRL Regulation

The law, which sets the general principles for the regulation and facilitation of incoming disaster relief from a triple regulatory, operational and coordination standpoint, provided the adoption of a specific regulation to materialise their application (art. 14).

Between December 2020 and to date, the IDRL Working Group led the development of the Draft IDRL Regulation Proposal to support the application and implementation of the 2020 IDRL Law. A workshop held on June 3, 2022, in Tegucigalpa, Honduras, allowed the same key governmental agencies and stakeholders who had participated in the development of the IDRL Law to review and endorse the Draft IDRL Regulation Proposal which is expected to be presented to the Government and to the Honduran Congress before the end of 2022.

4 Conclusion

The IDRL Law of Honduras added value to the Honduran policy framework relating to incoming disaster relief by strengthening and consolidating it.

First, because it addressed the “IDRL” gaps that had been identified in 2019. While facilities were only partially provided by the Honduran laws and at the regional level, the 2020 IDRL Law clearly provides for the adoption of special legal facilities in all key sectors (migration, customs, etc.) for eligible humanitarian actors, which was used by them over 2021.

Second, because it provides legal certainty and value to the Chancery and CCAHI Guidelines, whose protocols and procedures are now binding to the different authorities responsible for the management of international disaster response.

Lastly, because by addressing all key IDRL issues relating to the entry of both regional and international humanitarian aid and assistance, it brings clarity and unifies the policy regime for incoming disaster relief regardless of its country of origin (within and outside from the Central American region) and type of donors (countries and international organisations), while making it more intelligible to the international community and donors.

However, while implementation remains a recurrent challenge in Central America since the adoption of the MecReg, further study on whether and how the IDRL Law was effectively implemented in 2021 to respond to hurricanes Eta and Iota would be beneficial to address possible gaps in the Draft IDRL Regulation Proposal currently under development and expected to be adopted at ministerial level in 2023.

*

IFRC Americas Disaster Law and Legislative Advocacy Coordinator.

1

Elizabeth Ferris and Daniel Petz, In the Neighbourhood: The Growing Role of Regional Organizations in Disaster Risk Management (The Brookings Institution – London School of Economics 2013). Full study available at <http://www.brookings.edu/~/media/Research/Files/Reports/2013/02/regional-organizations-disasters-ferris/REGIONAL_DISASTER_MECHANISMS_2013.pdf?la=en> last accessed (as any subsequent URL) on 21 July 2022.

2

Causing the death of more than 15,000 people across the region and more than USD 5 billion damages, 1999 IFRC World Disaster Report.

3

According to the Economic Commission for Latin America and the Caribbean (“Comisión Económica para América Latina y el Caribe” (Cepal)).

5

IFRC IDRL Report on Honduras.

6

2017 Edition of the Global Climate Risk Index.

7

Comprising Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panama, the Dominican Republic.

8

A set of principles and minimum humanitarian standards in four technical areas of humanitarian response (water supply, food security, shelter and settlement, and health).

9

Comisión Permanente de Contingencias de Honduras.

10

To date, only Guatemala has a USAR SNT accredited at national level; Costa Rica has EMT and USAR SNT but none of the two have been accredited by CEPREDENAC yet.

11

These two instruments were adopted in 2008 by SICA members States with the objective of establishing a common customs regime within the region. They apply to all types of goods and all transport means crossing the territory of a SICA Member State.

12

Art. 108 of the CAUCA and 554 of the RECAUCA.

13

Humanitarian actors who are nationals of one of the 81 countries listed can benefit from the exemptions, as well as the international organisations listed.

14

En ausencia de la declaración de emergencia por causa de desastres, emergencia, crisis humanitaria o calamidad pública, a falta de un llamamiento de asistencia internacional y ante una inminente necesidad humanitaria, los agentes internacionales que prestan asistencia podrán hacer ofertas no solicitadas a la Secretaría de Estado en los Despachos de Relaciones Exteriores y Cooperación Internacional mediante la correspondiente representación diplomática de Honduras en el exterior’, art. 4(e), IDRL Law.

15

Adopted by the International Law Commission at its sixty-eighth session, in 2016, and submitted to the UN General Assembly as a part of the Commission’s report covering the work of that session.

16

Art. 11 of the Draft Articles provides that “To the extent that a disaster manifestly exceeds its national response capacity, the affected State has the duty to seek assistance from, as appropriate, other States, the United Nations, and other potential assisting actors”.

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