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Legal Preparedness for International Disaster Assistance in the SADC Region

An Analysis of the Incorporation of International Disaster Response Laws, Rules and Principles (IDRL) in Domestic Disaster Risk Management Legal and Policy Frameworks

In: Yearbook of International Disaster Law Online
Authors:
Jeanique Andrea De Sousa Serradinho
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Stella Njeri Ngugi
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Reece Da Costa
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Open Access

1 Introduction

States within the Southern African region are frequently affected by disasters, including cyclones, floods, and droughts.1 Climate change is increasing both the frequency and intensity of these crises.2 These disasters often have catastrophic impacts, resulting in the loss of lives, livelihoods, and assets; as well as damage to property, infrastructure, and the environment.3

A large-scale disaster can overwhelm the domestic capacity of even the best-prepared government. Although it is recognised that states bear the primary responsibility to respond to disasters and meet the needs of the affected population, support from the international community should complement national efforts when domestic capacity is exceeded.4 There is no single binding international agreement comprehensively regulating international disaster relief and initial recovery assistance on a global basis, though a number of global and regional treaties contain provisions relevant to the topic, and key soft-law tools have also been developed to support the regulation of this area of disaster risk management (DRM).

At the domestic level, states often do not effectively incorporate international disaster response laws, rules, and principles (IDRL) in their DRM legal and policy frameworks.5 On the one hand, states may over-regulate the management of international disaster relief and initial recovery assistance, for instance by continuing to apply the legal framework developed for non-disaster times which may not be flexible enough to facilitate humanitarian assistance effectively. The lengthy bureaucratic procedures often involved in this approach can result in bottlenecks and significant delays in the entry of international disaster assistance.6 On the other hand, some countries under-regulate international disaster assistance by permitting the entry of international assisting actors and goods without implementing eligibility criteria and providing sufficient oversight, which may lead to the importation of inappropriate goods and equipment, and the entry of unqualified personnel.7 Ensuring that domestic legal frameworks comprehensively regulate international disaster assistance can enhance coordination between domestic and international actors in international disaster relief and initial recovery assistance operations and provide much-needed clarity with respect to the procedures applicable to the relevant actors, their roles and responsibilities and the quality and accountability standards which need to be abided by in such operations.

This article seeks to determine the extent to which international treaties and global tools have influenced the development of DRM legislation at domestic level and to assess the legal preparedness of selected states in the Southern African Development Community (SADC)8 region to facilitate international assistance in the event that a disaster exceeds national capacities to cope. The countries selected for this study are Malawi, Mauritius, Namibia, Seychelles, and South Africa. This selection allows for the representation of countries that have older DRM legal and policy frameworks, countries which have recently reviewed their DRM legal and policy frameworks, and countries that are currently reviewing their DRM legal and policy frameworks. In the interests of feasibility, only countries which publish legislation in English were selected for the study. This article serves to fill a lacuna in existing academic research as, to date, there is very little research on IDRL in the region.9

This article begins by providing a brief review of global, regional and sub- regional agreements and tools relating to international disaster relief and initial recovery assistance and their status in the selected countries. Thereafter, a review of the key domestic DRM laws and policies of each country is conducted, to identify the extent to which provisions on international disaster assistance have been incorporated and to assess whether the influence of IDRL-related treaties or global instruments can be seen in domestic legislation. Both direct influences (i.e., where explicit mention of a specific IDRL-related treaty or global instrument is found within the domestic legislation), and to the extent possible potential influences (i.e., instances where domestic legislation contains provisions similar to a provision of an IDRL-related instrument, without direct reference to the instrument) are highlighted. This article concludes by providing an assessment of the incorporation of IDRL provisions in domestic legal frameworks and providing recommendations as to how these provisions could be strengthened.

2 International, Regional and Sub-regional Agreements Relating to International Disaster Relief and Initial Recovery Assistance

2.1 Global Instruments

There is no binding international legal instrument that comprehensively regulates international disaster response across the globe. However, various international law instruments, both binding and non-binding, contain provisions relevant to international assistance within various branches of international law. The most relevant instruments are described briefly below, although this is by no means an exhaustive list.10

As a starting point, the Framework Convention on Civil Defence Assistance,11 which was developed by the International Civil Defence Organization in 2000, provides a framework to reduce obstacles to enable effective international cooperation between states in disaster settings. However, it is not extensively ratified, and none of the states included in this study appears to be signatories.12 There are also treaties which regulate specific aspects of international disaster relief. For example, the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations requires state parties to reduce or remove regulatory barriers to the use of telecommunication resources for disaster relief.13 None of the countries included in this study area state parties to this agreement.14 With regards to transport, Annexe 9 of the Convention on International Civil Aviation (Chicago Convention)15 provides procedural guidance for the clearance of aircrafts containing humanitarian assistance, and the Convention on the Facilitation of International Maritime Traffic mandates parties to facilitate the entry of vessels, persons and cargo engaged in natural disaster relief work.16 While all of the countries included in this study are party to the Chicago Convention,17 only Mauritius and Seychelles are parties to the Convention on the Facilitation of International Maritime Traffic.18 In terms of customs procedures, annex B3 and J5 to the International Convention on the Simplification and Harmonisation of Customs Procedures, as amended in 1999 (Kyoto Convention),19 and annex B9 and D of the Convention on Temporary Admission (Istanbul Convention),20 simplify and harmonise customs clearance procedures for the importation of goods and equipment in relief efforts.21 While Namibia and South Africa are also state parties, only Malawi and Mauritius have specifically indicated their acceptance of Annex B3 and J5 of the Kyoto Convention.22 Mauritius and South Africa are state parties to the Istanbul Convention, but neither has accepted the annexes relevant to international disaster assistance.23

Additionally, there are instruments regulating the management of specific types of disasters or emergencies which contain provisions on international disaster assistance. For example, the International Health Regulations (the IHR) regulate health emergencies with potential transboundary effects, defining the rights and responsibilities of state parties in handling outbreaks. The IHR s are legally-binding on 196 countries, including the 194 WHO Member States. Another example is the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency which regulates the initiation, coordination, and operation of international assistance operations in case of nuclear or radiological events.24 Malawi, Mauritius, Namibia and South Africa are state parties to this agreement.25 The International Convention on Oil Pollutionc26 and its Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances27 require state parties to cooperate and provide technical support and equipment when necessary (and within their capabilities and resources) to respond to an oil pollution incident, as well as for affected states to take the legal or administrative measures necessary to facilitate the support.28 Mauritius, Namibia, Seychelles and South Africa are state parties to this agreement, but only Mauritius is a state party to its Protocol.29

There are also several non-binding instruments which provide standards for international disaster assistance. For example, the Operational Principles on Human Rights and Natural Disasters, which were adopted by the Inter-Agency Standing Committee (IASC) in 2006 and revised in 2011, promote and facilitate a rights-based approach to disaster relief.30 The revised IASC Guidelines affirm the primary duty of the affected state to provide assistance and protection to persons affected by natural disasters and to respect and protect the human rights of disaster-affected persons.31 The revised IASC Guidelines provide that international humanitarian organisations and agencies and non-governmental organisations contributing to the humanitarian response should coordinate their activities amongst themselves and with national and local authorities, and should at all times respect the human rights of persons affected by disasters and advocate for their promotion and protection.32 International actors should also be guided by the Operational Guidelines in their activities, carry out their activities in accordance with the humanitarian principles of humanity, independence, impartiality and neutrality, and remain accountable to relevant stakeholders.33 Another example is the Draft Articles on the Protection of Persons in the event of Disasters which were adopted by the International Law Commission in 2016 (the Draft Articles). The Draft Articles set out obligations on states to seek international assistance in the event that a disaster exceeds national coping capacities, as well as obligations to take measures to facilitate international disaster assistance through the provision of legal facilities relating to relief personnel and goods and equipment, and measures for the protection of relief personnel, equipment and goods.34 The Draft Articles also contain provisions aimed to ensure the protection of human rights in disaster settings as well as the upholding of humanitarian principles in relief operations.35

One of the most comprehensive non-binding instruments on international disaster assistance is the IFRC’s Guidelines on the Facilitation of International Disaster Relief and Initial Recovery Assistance (IDRL Guidelines), which were adopted by the state parties to the Geneva Conventions and the components of the International Red Cross and Red Crescent Movement at the 30th International Conference of the Red Cross and Red Crescent in 2007.36 The IDRL Guidelines offer comprehensive recommendations to governments, drawn from global best practices, on how to develop legal frameworks that effectively regulate and manage international disaster assistance and address the most common regulatory issues encountered in relief operations.37 The IDRL Guidelines recommend that DRM frameworks should adequately address the initiation, coordination, facilitation, transit and regulation of international disaster relief and initial recovery assistance and should clearly assign roles and responsibilities in this regard, including establishing a liaison point between domestic and international actors at all levels.38 While affirming the principle role of domestic actors in DRM, the IDRL Guidelines recommend minimum legal facilities to be provided to assisting States and eligible humanitarian organisations that are willing and able to comply with minimum standards of coordination, quality and accountability.39 These include facilities for both personnel as well as goods and equipment (including specialised goods and equipment) relating to, amongst others, legal status, entry and transport, customs and excise, taxation, security, and costs relating to international disaster assistance operations.40

2.2 Regional and Sub-regional Instruments

There is no regional or sub-regional agreement that comprehensively regulates international disaster relief in Southern Africa. In terms of relevant regional agreements, the African Union (AU) Convention for the Protection and Assistance of Internally Displaced Persons in Africa41 (Kampala Convention) includes in its definition of “internally displaced persons”, persons who have been forced to flee as a result of disasters. The Kampala Convention references international disaster assistance directly, providing in article 5(7) that state parties are obligated to facilitate the coordination of international relief and allow the rapid passage of humanitarian relief. The Kampala Convention contains several other provisions on cooperation, requiring, for example, state parties to cooperate with other states, the AU and humanitarian organisations in protecting and assisting IDP s.42 While the Kampala Convention is a key treaty which articulates rights and obligations on international cooperation amongst States in the African region, its scope is limited to the context of internal displacement, and its provision on international disaster assistance is cached quite generally – for example, it does not contain details of specific facilities to be granted to international assisting actors. Of the countries included in this study, Malawi has ratified the agreement; Namibia has signed but not ratified the agreement; and Mauritius, Seychelles and South Africa have neither signed nor ratified the agreement. In addition, article 23 of the African Charter on the Rights and Welfare of the Child43 (ACRWC) provides that states shall take all appropriate measures to ensure that children who have been internally displaced due to disasters receive appropriate humanitarian assistance. All of the countries included in this study are parties to the ACRWC.44

Despite the lack of a comprehensive framework on international disaster assistance, a number of developments in the region are worth noting. For example, the AU’s Humanitarian Policy Framework states that regional emergency response teams will be established,45 and the Assembly of the AU adopted a decision in 2016 to establish the African Humanitarian Agency (AFHA) to effectively respond to and coordinate humanitarian crises, which has the potential to increase the coordination of international disaster assistance on the continent.46 In addition, the AU’s Department of Political Affairs is currently leading the drafting of a Model Act on the Facilitation of International Humanitarian Assistance. Once adopted, this non-binding tool could be used to guide the development of domestic DRM laws which comprehensively regulate international disaster assistance and could also promote uniformity in the approach to international disaster assistance amongst member states. In turn, this should promote smoother international disaster response operations in the future. It is also relevant to note the work of the World Health Organisation’s (WHO) Regional Office for Africa and the AU’s Africa Centres for Disease Control and Prevention (Africa CDC) in promoting legal preparedness for public health emergencies. For example, in 2021, the WHO Regional Office for Africa collaborated with the Africa CDC in the development of the Public Health Emergency Operations Centre (PHEOC) Legal Framework Guide: A Guide for the Development of a Legal Framework to Authorize the Establishment and Operationalization of a PHEOC.47 The PEOC Legal Framework Guide serves as a reference tool to support member states in meeting the IHR requirements, and guides African States in the establishment or strengthening of legal authorities for a PHEOC, and describes the process of developing or amending country-specific legal frameworks.

In terms of the sub-regional framework, all of the countries selected for this study are members of the SADC, a Regional Economic Community which promotes economic growth and socio-economic development within Southern Africa. A few SADC protocols, which are legally binding on signatories, are indirectly relevant to international disaster assistance. For example, article 2 of the SADC Protocol on Politics, Defence and Security Cooperation states that a specific objective of the SADC Organ on Politics, Defence and Security Cooperation is to “enhance regional capacity in respect of disaster management and co-ordination of international humanitarian assistance”.48 In addition, article 25 of the SADC Protocol on Health includes that parties shall cooperate and assist each other in the coordination and management of disasters and develop mechanisms for cooperation and assistance with emergency services.49 All of the countries included in this study are signatories to both protocols.50

Institutionally, SADC’s Disaster Risk Reduction Unit (DRRU) is responsible for coordinating cross-border regional preparedness and response programmes for transboundary hazards and disasters, and the SADC Regional Platform for Disaster Risk Reduction was inaugurated in 2011.51 SADC also has a Standby Force, established in 2007, which is composed of military, police and civilian components,52 and can be deployed to support humanitarian efforts in Member States impacted by major disasters.53 Importantly, SADC is currently in the process of strengthening its regional disaster preparedness and response institutional and coordination mechanisms, which is reflected in the SADC Disaster Preparedness and Response Strategy and Fund 2016–2030 (SADC Strategy).54 Once fully developed, these mechanisms will include a SADC Humanitarian and Emergency Operations Centre (SHOC); the Standby Force and an Emergency Response Team (ERT).55 Proposed standard operating procedures for the emergency response system are also included in the SADC Strategy, which includes actions to be taken by various key actors within 24 hours upon receipt of early warning information as well as actions to be taken within the first week.56 Notably, one of the key actions to be taken within the first 24 hours is for an assessment of international assistance to be undertaken, and within the first week, for the affected Member State to activate “disaster laws to enable efficient transit of relief goods and services including visa, entry and travel procedures to affected areas for staff and relief goods”.57 In addition, the SADC Strategy establishes the Disaster Preparedness and Response Fund to provide financial support for rapid response in the event of disasters that overwhelm the capacity of Member States and enable better regional coordination of disaster response mechanisms;58 and provides for its administration, management and criteria for the disbursement, release and use of funds.59

Notably, the SADC Strategy also recognises that during a disaster, the efficient transit of relief goods and services between Member States is essential and that the development of a regional agreement on the transit of humanitarian relief could avoid delays in the provision of humanitarian assistance and ensure better coordination and quality of assistance.60 In addition to proposing the development of a regional agreement, the importance of domestic laws and policies in regulating measures of the coordination of international disaster assistance is also recognised, and a number of concrete activities are proposed in this regard, many of which align with the recommendations of the IDRL Guidelines.61 These include, “supporting Member States to develop measures for the initiation and termination of international disaster assistance, coordination and preparedness for international assistance, responsibilities of assisting actors, eligibility of legal facilities for actors, including issuance of disaster visas, visa waivers, recognition of foreign professional qualifications, driver’s licences for international personnel; and supporting Member State to outline the entry requirements of international disaster goods and equipment, including exemption from taxes, duties and restrictions, agreements on prepositioning of stock, requirements for medicines, food, telecommunication equipment, search dogs and disposal of equipment and unused goods”.62 It is yet to be seen whether the agreement envisioned by SADC will be binding or not, and whether it will regulate all of these topics. SADC has also developed tools which are relevant to IDRL on an ad hoc basis. For example, during the COVID-19 Pandemic, SADC’s Council of Ministers approved Guidelines on Harmonisation and Facilitation of Cross Border Transport Operations across the Region which prioritises operation of vehicles carrying food, and medical equipment, as well as emergency and humanitarian relief services within the region.63

The island states of Mauritius and Seychelles are additionally members of the Indian Ocean Commission (IOC), an intergovernmental organisation which supports the development of its five member states in a range of areas, including DRM.64 While no IOC strategies or guidelines on international disaster assistance could be found, the IOC is currently a partner in a project being implemented by the United National Office on Disaster Risk Reduction (UNDRR) on Building Resilience and Improving Institutional Capacity in Indian Ocean Island States for DRR. This project aims to improve the DRR governance capacities of the island states, including by assessing, improving, and developing national DRM frameworks.65

States in the sub-region have also entered into bilateral or multilateral agreements that regulate aspects of international disaster assistance.66 As an example, the Governments of Botswana, Eswatini, Lesotho, Namibia, and South Africa are party to the Southern African Customs Union (SACU) Agreement which, amongst other things, aims to facilitate the cross-border movement of goods between the territories of the member states.67 Article 20 of the SACU Agreement regulates the imposition of customs duties on goods imported into the territory of member states and provides that a rebate of customs duties in respect of goods imported may be granted where such rebates are for, amongst others, the relief of the distress of persons in cases of national disasters.68

It is clear that no binding agreement comprehensively regulates international disaster assistance at the global, regional, or sub-regional level in Southern Africa. Rather, IDRL is regulated in a fragmented manner across various branches of international law. Furthermore, the status of ratification of the relevant agreements varies considerably between the states included in this study. The sections which follow identify the extent to which the agreements and instruments described above have influenced the development of DRM laws at the domestic level and provide recommendations as to how the frameworks can be strengthened, in line with the IDRL Guidelines.

3 The Incorporation of the Regulation of International Disaster Assistance in Domestic DRM Legal Frameworks

3.1 Malawi

The Disaster Preparedness and Relief Act of 1991 (the DPR Act)69 regulates DRM in Malawi and provides for the establishment of the Office of the Commissioner for Disaster Preparedness and Relief, who is also the head of the Department of Disaster and Management Affairs (DoDMA), mandated to coordinate all disaster preparedness and disaster relief activities in Malawi.70 The DPR Act also establishes the National Disaster Preparedness and Relief Committee (NDPRC), which is generally responsible for overseeing the co-ordination and planning of all activities aimed at alleviating disasters in the country.71 In addition to the DPR Act, the government developed the Disaster Risk Management Policy in 2015 (the Policy), which aims to create an enabling framework for the establishment of a comprehensive DRM system for Malawi.72

The DPR Act does not contain references to any international agreements or instruments related to international disaster assistance, nor does it contain provisions on international disaster assistance. It does, however, provide that regulations giving effect to the DPR Act may be developed,73 which could theoretically include regulations on international disaster assistance. The Policy contains references to certain international agreements and instruments, such as the Hyogo Framework for Action and the UN Framework Convention on Climate Change,74 but it does not contain references to any of the international disaster assistance-related agreements listed above. The Policy also does not regulate international assistance comprehensively, although it does provide that mechanisms for the receipt and accounting of international assistance during disasters will be developed.75 In the absence of a clear legal framework, expediting the entrance of humanitarian relief goods appears to occur on an ad hoc basis, whereby assisting actors request entry through DoDMA which then submits an application to the Ministry of Finance which subsequently submits an application to Malawi Revenue Authority (MRA) to clear the relief items.76 Similarly with regards to personnel, in practice the Department of Immigration issues facilitation letters for international disaster assistance personnel to travel to a port of entry in Malawi for the issuance of visas on entry.77

However, this appears set to change, as Malawi is currently revising its DRM legislation, having developed a DRM Bill in 2019, which, once enacted, will replace the DPR Act.78 Malawi serves as a good example of the role of Red Cross and Red Crescent National Societies in the development of comprehensive DRM laws that effectively regulate international disaster assistance. The Malawi Red Cross Society (MRCS) has been working as a key partner with DoDMA in the development of the DRM Bill. In particular, MRCS, with the support from IFRC Disaster Law, led an IDRL research project alongside DoDMA, culminating in the publication of a report which recommended including comprehensive provisions to guide national authorities in regulating international humanitarian assistance in DRM legislation, in line with the IDRL Guidelines.79 Following the publication of the report, MRCS successfully advocated with the government to provide technical support to implement the report’s recommendations in the development of the DRM Bill.80

The advocacy efforts of MRCS paid off, as the draft DRM Bill includes detailed provisions on international disaster assistance, which are closely aligned with the IDRL Guidelines. This includes provisions outlining the process and roles and responsibilities relating to requesting and terminating international assistance, as well as the coordination of international disaster assistance.81 The DRM Bill assigns the Commissioner for DRM as the focal point for liaison between the Government and assisting international actors, responsible for liaising with relevant ministers to facilitate the work of international assistance actors.82 This includes the granting of visas and the temporary recognition of professional qualifications and licenses; measures to promote humanitarian access and the safety and security of personnel and their goods and equipment; and exemptions on customs duties, taxes and inspection requirements on goods and equipment relevant to disaster management that are imported, exported or reexported by international assisting actors.83 Liability protections are also provided in respect of acts performed by international assisting actors in good faith during the provision of international assistance.84 In turn, the DRM Bill places obligations on international assisting actors, such as to cooperate and coordinate with national authorities and organisations, uphold and abide by certain quality standards and humanitarian principles, and to ensure that any unusable goods or equipment imported are disposed of in a safe and environmentally friendly manner.85 The DRM Bill also contains explicit provisions to enhance transparency with respect to international disaster assistance, providing that international disaster assistance funds received by the Government will be accepted by the Commissioner and placed in an account opened under the National Disaster Risk Management Fund, and that the persons who receive the funds for utilisation must submit a report to the Commissioner detailing their use.86

3.2 Mauritius

Mauritius established the National Disaster Risk Reduction and Management Council (NDRRM Council) and the National Disaster Risk Reduction and Management Centre (NDRRMC) in 2013.87 The NDRRMC acts as the focal institution for the planning, organizing, coordinating and monitoring of DRM activities in the country.88 In 2016, the Government passed framework legislation for DRM, the National Disaster Risk Reduction and Management Act (NDRRM Act).89 The NDRRM Act sets out responsibilities for the NDRRM Council,90 which include the preparation of the national DRM policy and the oversight and implementation of the National Strategic Framework and National Plan,91 formulation of policies on relief assistance,92 as well promoting international cooperation.93 The NDRRM Act also establishes a National Crisis Committee (NCC), which in the event of a disaster, is empowered to have all the functions and powers of the NDRRM Council and is responsible for taking decisive and timely actions through the National Emergency Operations Command (NEOC).94 The NEOC is activated in the event of a disaster solely to coordinate and monitor all response and recovery activities.95 The NDRRM Act also takes into account the insular nature of Mauritian territory, and makes specific provisions for DRM in Rodrigues as well as Agaléga and Cargados Carajos.96 In addition to the NDRRM Act, Mauritius also developed the National Disaster Scheme in 2015 (NDS).97 The NDS encompasses the whole spectrum of the DRM cycle and describes coordination procedures for multi-agency approaches in response to specific natural hazards.98 The NDRRM Policy, Strategic Framework and Action Plan were developed in 2021 to promote the implementation of the NDRRM Act.99 Notably, the NDS specifically references the role of the Mauritius Red Cross Society in supporting the government in examining how the legal framework could be strengthened in light of the IDRL Guidelines,100 and the National Society was a key partner in the development of the NDRRM Act.101

The NDRRM Act references international treaties related to DRM in broad terms. While not specifying specific agreements, the NDRRM Council is responsible for promoting the implementation of the obligations of Mauritius under DRM treaties to which the country is a party.102 The NDRRM Act contains several explicit provisions on international disaster assistance. As a starting point, the Prime Minister has the power to issue directions on steps to facilitate international disaster assistance if a state of disaster has been declared.103 Section 38 of the NDRRM Act regulates international disaster assistance in more detail, providing that the Prime Minister of Mauritius may independently, or on the recommendation of the NCC, seek international assistance,104 which must be coordinated according to international law.105 The NDRRM Act further stipulates that where a request for international assistance is accepted, the relevant assisting actors will be provided with the necessary facilities.106 Specific legal facilities are not defined except for legal facilities relating to the importation of goods, where it is provided that any goods imported as an aid to persons affected by a disaster shall be released, free of duty, excise duty and taxes.107 In addition, the NDRRM Act provides protection from liability for disaster relief actors generally, providing that no liability, civil or criminal, will be attributed to any person in respect of any act performed or omitted in good faith.108 In turn, international assisting actors are also tasked with responsibilities, which include to cooperate and coordinate with national authorities and organisations during disaster relief and initial recovery periods.109 International assisting actors must also ensure that they comply with the NDRRM Act and the principles of humanity, neutrality and impartiality when providing assistance.110 Although there are no explicit references to international agreements relating to international disaster assistance within the NDRRM Act, it is possible that international agreements influenced its development. For example, the Kyoto Convention may have influenced the inclusion of customs facilities for international disaster response actors. However, the influence of the IDRL Guidelines is more apparent in the NDRRM Act, given the additional provisions included on international disaster assistance, which align with the IDRL Guidelines, and the supporting role that Mauritius Red Cross Society played in its development.

The NDS refers to international relief assistance for defined hazards, both with respect to preparedness and response. For example, with respect to preparedness for earthquakes, the Mauritius Revenue Authority (MRA) is responsible for ensuring that procedures for receiving and managing international disaster relief are in place (including the reception of search and rescue animals and the facilitation of international relief teams).111 In the aftermath of an earthquake, the MRA Customs Department is responsible for taking measures to ensure the rapid release of relief consignments and the facilitation of international relief teams.112 Similarly, with respect to cyclones; flooding, torrential rain or heavy rainfall; tsunamis and landslides, the Ministry of Finance and Economic Development, through the MRA, is responsible for taking measures for the rapid release of relief consignments and any goods needed during the disaster.113 The Ministry of Technology, Communication and Innovation is responsible to facilitate that all communication equipment required by international humanitarian support is immediately cleared and that operating bandwidth is made available within the frequency spectrum in the aftermath of cyclones and flooding, torrential rain or heavy rainfall.114 Finally, in the aftermath of tsunamis and high waves, the NEOC is responsible for coordinating the entry of international disaster assistance into the country, as required.115 The NDRRM Policy, Strategic Framework and Action Plan do not contain detailed provisions on international disaster assistance, although the Strategic Framework does state that it is shaped by several international instruments, including the IHR s and the Sendai Framework, which, under Priority 4, recognises the importance of reviewing and strengthening national laws and procedures on international cooperation, based on the IDRL Guidelines.116

3.3 Namibia

The Disaster Risk Management Act 10 of 2012 (DRM Act) and regulations thereto,117 together with the National Disaster Risk Management Policy (DRM Policy)118 and National Disaster Risk Management Plan (DRM Plan)119 provide the framework for DRM in Namibia. The DRM Act establishes several institutional bodies for the implementation of DRM in Namibia at the national level, namely the National Disaster Risk Management Committee (NDRMC), an inter-ministerial governance body; the Directorate of Disaster Risk Management, which is the administrative body responsible for DRM at the national level, headed by the Director: DRM; and the Namibia Vulnerability Assessment Committee, which is responsible for a wide range of activities relating to the assessment and monitoring of vulnerability in Namibia.120 The DRM Act also makes provision for the establishment of a National Crisis Committee during a state of national disaster.121

The Namibia Red Cross Society (NRCS) was a key partner to the Namibian Government in the development of the DRM Act.122 With support from the IFRC, the NRCS collaborated with the government to develop a study123 on the legal preparedness of Namibia for international disaster assistance in light of the IDRL Guidelines, which was shared with lawmakers for use in developing the Act and regulations.124 Neither the DRM Act nor the regulations contain explicit references to any international agreements relating to international disaster assistance, but both instruments contain several provisions on international disaster assistance. As a starting point, the DRM Act provides that the NDRMC is responsible for periodically reviewing policy issues regarding international appeals and the use of international assistance.125 In terms of the process, the DRM Policy provides that Cabinet is responsible for determining the need for international appeals for assistance and the nature of the assistance required on the basis of recommendations of the NDRMC.126 Notably, the DRM Act makes provision for certain legal facilities to be granted to international disaster relief actors. Firstly, the law makes express provision to ensure their landing rights, stipulating that the Prime Minister, in consultation with the Minister responsible for transport, must facilitate transportation, overflight and similar measures for disaster response.127 In terms of customs, the DRM Act exempts donations to the National Disaster Fund received in kind, materials and equipment made by approved stakeholders from customs duty.128 The Prime Minister in consultation with the minister responsible for finance, must also facilitate reduced and simplified customs procedures, exemptions from duties, taxes, and charges for donations of goods and equipment made during disaster situations, including the possessions of relief personnel.129 The DRM Regulations provide further details on this procedure: a donor must within 48 hours prior to the arrival of the disaster relief item donated, provide a list of items to be donated, and the Director must ensure that a copy of the list is submitted to the Minister responsible for finance for exemption from customs excise duty.130 In addition, the person receiving donated disaster relief items at a point of entry must ensure that the items donated correspond with the list of items submitted.131 With respect to immigration, the Prime Minister, in consultation with the Minister responsible for immigration, must facilitate the entry and operation of international relief personnel and experts, including the expeditious granting of visas and waiver of work permits for relief personnel and experts.132 The Prime Minister, in consultation with the Minister responsible for finance, must also facilitate reduced and simplified customs procedures, exemption from duties, taxes and charges for the possessions of relief personnel.133 The DRM Act also provides that the Prime Minister may enter into DRM cooperation agreements with any entity or person within or outside Namibia,134 further providing that an entity or person that enters into such an agreement is subject to and must respect the sovereignty of Namibia, obey local laws, cooperate with authorities, abstain from political or commercial activities, and ensure that the assistance given is both appropriate to the assessed needs and compliant with domestic quality, health and other standards.135

The DRM Policy and DRM Plan were both developed prior to the DRM Act and regulations, and while both contain references to international disaster assistance, neither contain detailed provisions on the topic.136 It is interesting to note, however, that the DRM Policy recognises the Framework Convention for Civil Defence Assistance as one of several instruments that provides a global framework for DRM.137

It can be seen that international instruments have influenced the inclusion of IDRL provisions in the DRM framework in Namibia. However, the extent of the influence of non-binding instruments, specifically the IDRL Guidelines, is more apparent than the influence of binding agreements. While the legal facilities relating to landing rights and customs included in Namibian DRM legislation could have been influenced by the Chicago Convention and the Kyoto Convention, respectively, it appears more likely that the provisions on international disaster assistance contained in the DRM Act and regulations were influenced by the IDRL Guidelines, given the role that NRCS played in supporting the development of the framework in line with the IDRL Guidelines.

3.4 Seychelles

The Government of Seychelles passed the DRM Act in 2014 (Seychelles DRM Act),138 which establishes the National Disaster Management Committee, a high-level committee responsible for advising the President and Cabinet on DRM;139 and the Disaster Risk Management Division (DRMD),140 headed by a Director General.141 The DRMD is a multisectoral body that operates as a national platform for coordination and policy guidance on DRM.142 The DRMD is responsible for, amongst other things, the implementation and monitoring of an integrated DRM system at all levels, as well as the preparation of a national DRM plan and strategy.143

The Seychelles DRM Act contains extensive provisions on international disaster assistance, which are largely aligned with the IDRL Guidelines, as a result of the technical support provided by the Red Cross and Red Crescent Movement. The Seychelles DRM Act provides another example of the influence of the Red Cross and Red Crescent Movement on the development of domestic DRM legal and policy frameworks, as the Red Cross Society of the Seychelles, with the support of the IFRC, was closely involved in advising and assisting the Seychelles government in the development of the DRM Act.144

As a starting point, the Seychelles DRM Act provides the process as well as roles and responsibilities for requesting international assistance and for terminating international disaster assistance.145 It also regulates the negotiation of possible costs that Seychelles will bear for the assistance to be provided.146 Furthermore, the Seychelles DRM Act regulates the coordination of international disaster assistance, providing that the Director General serves as the government liaison with international assisting actors,147 and is responsible for facilitating the work of international assisting actors whose offers of assistance have been accepted. Relevant actions include: requesting the relevant government institution to make available assets or premises required to facilitate the work of the international assisting actor;148 facilitating entry through the provision of necessary visas or permits as needed for the duration of the assistance and the temporary recognition of professional qualifications, licenses, certificates and driving permits of humanitarian personnel;149 facilitating the inspection requirements and exemption of customs duties, taxes, levies, tariffs and any other government fees on goods and equipment imported, exported, in transit or re-exported;150 and facilitating the opening of bank accounts where necessary.151 There are also facilities relating to specialised goods and equipment: the Director General is responsible for facilitating the use and setting up of telecommunication equipment to be used by international assisting actors;152 and the issuing of licenses for the export and distribution of the medication to be used by international assisting actors.153 Finally, the Director General is responsible for, as far as possible, facilitating safe access by international assisting actors to disaster affected areas;154 and ensuring their safety and security, and the goods and equipment used by them.155 Liability protections are also provided with respect to acts performed by international assisting actors in good faith during the provision of international assistance.156

International assisting actors are also tasked with reciprocal responsibilities, including to cooperate and coordinate with national authorities and organisations,157 and to ensure that the medication or equipment used is safe, of good quality, has not expired, has been maintained in appropriate condition and is labelled in an appropriate language.158 International assisting actors are also responsible for complying with the principles of humanity, independence and impartiality when providing assistance.159 The Seychelles DRM Act further provides particular restraints to be practised by international assisting actors, including that they shall not discriminate based on status, nationality, race, ethnicity, religious belief, class, gender, sexual orientation, disability, age or political opinion;160 seek to further a particular political or religious standpoint or interfere in internal matters not relating to disaster response161 or obtain commercial gain from their assistance;162 or gather sensitive information of a political, economic or military nature.163 The international assisting actor must also ensure that any goods or equipment that were imported and have become unusable are disposed of in accordance with the law.164

The Seychelles DRM Act is complemented by the National Integrated Emergency Plan of 2019 (NIEMP), which outlines the general framework and approach to disaster preparedness and response in the country and provides for the Integrated Emergency Management System approach, required by the Seychelles DRM Act.165 The NIEMP sets out the procedures to be followed and roles and responsibilities for each actor involved in DRM, as well as the coordination and communications structure within which they work.166 This includes a coordination structure for international disaster assistance.167

Neither the Seychelles DRM Act nor the NIEMP reference specific international treaties relevant to international disaster assistance, although the NIEMP does state that it was developed with the aim of strengthening emergency preparedness for effective response at all levels and thus contribute to the implementation of Priority 4 of the Sendai Framework. The influence of the IDRL Guidelines on the DRM Act is, however, quite clear, as has been set out above.

3.5 South Africa

The Disaster Management Act of 2002, as amended by the Disaster Management Amendment Act 16 of 2015 (DMA),168 together with the Policy Framework for Disaster Risk Management in South Africa of 2005 (the Framework)169 provide the legal and policy framework for DRM in South Africa. The DMA sets out the institutional bodies related to DRM in South Africa. At the national level, these are the Inter-Governmental Committee on Disaster Management (ICDM), a high-level advisory body on DRM;170 the National Disaster Management Advisory Forum, a body in which national, provincial and local government and other DRM role-players consult one another and coordinate their activities;171 and the National Disaster Management Centre (NDMC), the administrative body responsible for the coordination of DRM in the country under the Department of Cooperative Governance and Traditional Affairs (CoGTA).172

The DMA contains limited provisions on international disaster assistance. However, it does provide that the NDMC must establish communication links with foreign disaster management agencies to have access to international assistance,173 and that information regarding emergency response resources and capacity in neighbouring states and relevant international relief agencies must also be included in an electronic database on disasters to be developed by the NDMC.174 Although the provisions on international disaster assistance within the DMA are limited, there is explicit provision for regulations or directions to be made to facilitate international disaster assistance in future, in the event a national state of disaster has been declared.175 In addition, section 7(2)(c) of the DMA stipulates that the Framework must inter alia facilitate South Africa’s cooperation in both regional and international disaster management.

In turn, the Framework recognises that South Africa needs to strengthen its engagement with international relief donor agencies.176 The Framework provides that the Department of Foreign Affairs (now the Department of International Relations and Cooperation (DIRCO)) is the national department responsible for promoting and facilitating South Africa’s role in international cooperation in DRM and must, in liaison with the NDMC and the relevant organs of state, forge links with national and international agencies that render relief assistance.177 The Framework further stipulates that appropriate protocols to clarify procedures for requesting external assistance and discouraging ad hoc and unsolicited appeals for relief must be established as a matter of priority.178 However, it appears such protocols have not been developed to date, or are not publicly available.

The Framework also notes the importance of regional cooperation and proposes that a consultative process be undertaken to establish a SADC forum for the purpose of DRM cooperation in the region, with the objectives of, amongst others: concluding bilateral and multilateral agreements with clearly defined protocols to provide for cross-border disaster response and recovery operations; establishing specialist teams to assist in response and recovery efforts; ensuring the clear definition of responsibilities between regional and international role players in cross-border disaster response; and promoting the establishment of joint standards of practice across the region by inter alia establishing regional disaster operations centres to ensure the effective coordination of disaster response and recovery management and ensuring uniformity in standards for humanitarian assistance interventions.179 The Framework also recognises that arrangements for cooperation in DRM must be made between the governments of those provinces in South Africa that border neighbouring countries and the governments of those countries, and partnerships must be created within each sphere with the private sector and NGO s through detailed agreements.180 Finally, the Framework also deals with South Africa’s capacity to provide assistance in the field of humanitarian aid in detail, stating that appeals for assistance must be directed to the NDMC, which is also responsible for the facilitation of assistance and mobilisation of resources in response to such requests.181

The influence of international instruments related to international disaster assistance in the South African DRM legal and policy framework appears to be limited, as neither document includes explicit references to any of the international treaties listed above or comprehensive provisions on international disaster assistance. While both the DMA and Framework were developed prior to the development of the IDRL Guidelines, the influence of the IDRL Guidelines cannot be seen in the amendments to the DMA undertaken in 2015, despite the South African Red Cross and IFRC having been part of a roundtable of experts providing input to the review in 2011.182 While the reason for the lack of detailed provisions on international disaster assistance in the DMA is not clear, it could potentially be due to the intention or preference of developing separate regulations or protocols on international disaster assistance, as set out in the DMA and Framework, which is perhaps not a priority in the country due to its standing within the region as predominantly a provider rather than the receiver of international disaster assistance, as noted in the Framework.

4 Concluding Remarks: Taking Stock of the Influence of International Agreements and Instruments Relating to International Disaster Assistance in the Domestic DRM Legal Frameworks in the SADC Region

This article seeks to assess the influence of selected treaties and global tools relevant to international disaster assistance in the development of domestic DRM legislation, as well as the extent to which provisions on international disaster assistance have been integrated into domestic DRM legal and policy frameworks in selected states in the SADC region, especially with reference to the IDRL Guidelines.

The approach to both ratifying international agreements relevant to international disaster assistance and incorporating provisions on international disaster assistance in the national legislation of states in the SADC region is quite varied. In terms of ratification status, Mauritius stands out as the country which has ratified the vast majority of the international, regional, and sub-regional agreements listed above, whereas the remaining countries have ratified roughly half of the agreements. Yet, while the DRM framework of Mauritius contains relatively comprehensive provisions on international disaster assistance, the provisions included are not as extensive as those included in DRM legislation in Seychelles and draft legislation in Malawi, which have both ratified fewer treaties. South Africa, on the other hand, has ratified over half of the agreements but has comparatively far fewer and less detailed provisions on international disaster assistance in its DRM legal and policy framework, whereas Namibia has ratified roughly half of the treaties yet has included relatively comprehensive provisions on international disaster assistance in its domestic DRM framework (although less extensive than those included in Seychelles and Malawi). Therefore, the ratification status of IDRL-related treaties does not appear to directly correlate with the inclusion of provisions on international disaster assistance in DRM legislation and policies at the domestic level.

In addition, the direct influence of international treaties regulating aspects of international disaster assistance in domestic DRM legal and policy frameworks in the selected countries appears to be limited. There are no direct references to specific treaties in the domestic DRM laws and few references in DRM policy documents of the countries studied. While international agreements may have influenced the inclusion of certain provisions on international disaster assistance in domestic legislation, such as the inclusion of customs facilities for international assisting actors in the DRM legislation or draft legislation in Malawi, Mauritius, Namibia, and Seychelles, the influence of global tools, specifically the IDRL Guidelines, and the work of the Red Cross and Red Crescent Movement in supporting the development of DRM laws that, amongst others, regulate international disaster assistance are more apparent. The National Red Cross Societies of Malawi, Mauritius, Namibia and Seychelles all worked closely with their governments in the development of the DRM laws (or draft laws, in the case of Malawi) in these countries, and these DRM laws in these countries all contain relatively comprehensive provisions on international disaster assistance. This highlights the key role of the Red Cross and Red Crescent Movement and non-binding instruments, particularly the IDRL Guidelines, in the promotion and development of comprehensive DRM frameworks in the region.

In fact, when viewed through the lens of the IDRL Guidelines, the provisions included in Seychelles’ DRM legislation and Malawi’s draft legislation align closely with the IDRL Guidelines, and therefore constitute examples of good practice. Both instruments clearly outline procedures for requesting, receiving, and terminating international assistance, and regulate how costs relating to international disaster assistance provided by international assisting actors will be borne. Both also set out a focal point for promoting the effective facilitation, coordination and oversight of international disaster response and initial recovery assistance and provide for a broad range of legal facilities to be provided to international assisting actors as well as liability protections for international actors performing their duties in good faith. Notably, both instruments also place reciprocal obligations on international assisting actors, such as to coordinate with national authorities and organisations, abide by humanitarian principles, uphold quality and regulatory standards of goods and equipment, and to safely dispose of unusable goods.

When reviewed against the IDRL Guidelines, the DRM frameworks of Seychelles and Malawi can nevertheless be strengthened, for example, by providing additional legal facilities to international assisting actors, such as, explicitly granting eligible international assisting actors temporary authorization to legally operate on their territory (allowing them to enter contracts, acquire and dispose of property and institute legal proceedings).183 To ensure that legal facilities are not abused, DRM frameworks should also establish a clear criterion of eligibility for international assisting actors to receive legal facilities.184 Similarly, these DRM frameworks could specify that the retention of these legal facilities is dependent on the continued compliance with the eligibility criteria and upholding of quality and humanitarian standards.185

The legal and policy frameworks of Mauritius and Namibia both contain several provisions on international disaster assistance. However, the provisions are less detailed than the provisions included in the draft legislation in Malawi and the Seychelles DRM Act. The legal frameworks in these countries could be strengthened in line with the IDRL Guidelines through, for example, including additional details on the commencement and termination of international disaster assistance (including the disposal of unused goods), the coordination of international disaster assistance (for example, appointing an explicit focal point for international disaster assistance) and the regulation of costs relating to international assistance. While both frameworks provide certain legal facilities to international assisting actors, these are limited in the Namibian framework (which provides overflight, immigration, and customs facilities for the importation of relief goods and equipment) and largely unclear in the Mauritius framework. The NDRRM Act provides customs facilities for international assisting actors and states that additional “necessary facilities” will be provided, these are not specified. While the NDS refers to additional facilities, it is not a legally binding document. Additional facilities for international assisting actors in line with the IDRL Guidelines could therefore be provided, which should be subject to the actors meeting clear and specific eligibility requirements.

Of the countries studied, South Africa’s legal and policy framework contains by far the fewest and least detailed provisions on international disaster assistance. Although the DMA and Framework contain several references to international disaster assistance, the provisions lack specificity and are quite broadly framed. Therefore, the framework could be strengthened by developing specific regulations regulating international disaster assistance in more detail, in line with the IDRL Guidelines. However, the lack of a comprehensive legal framework regulating international disaster assistance is not to say that South Africa does not have processes in place to manage international disaster assistance in practice. Even if these processes are indeed encompassed in ad hoc policies, similar to what Malawi has in place, there is a need to have it concretised in legislation in order to ensure clarity of procedures, roles and responsibilities of government and international assisting actors, therefore guaranteeing uniformity and prompting accountability. Having these processes codified also allows accessibility by international actors who may not be familiar with an affected country’s legal system. All in all, codification would be an enabler for a well-coordinated international response in all disasters that would be considered to have exceeded domestic capacities.186

Given the cross-cutting nature of IDRL, it is important to note that additional domestic laws, including those regulating tax, customs and excise, exchange control laws, immigration laws, aviation, and maritime transport could also contain provisions on international disaster assistance and could potentially reflect the influence of international agreements or tools relating to specific aspects of international disaster assistance. These laws fell outside the scope of this article, but also require review in order to have a full understanding of the legal and policy framework regulating international disaster assistance in a particular country and of the influence of international treaties and instruments in this area. Nevertheless, as elements of IDRL can be found in every legal framework included in this study, there is a clear recognition of the importance of regulating and facilitating international disaster assistance in the region. The sections above have also highlighted that there are several existing opportunities to strengthen IDRL in the sub-region, as some countries are currently revising, or are planning to revise, their DRM frameworks, such as Malawi and Mauritius. These processes represent an opportunity to include provisions that facilitate and regulate international disaster assistance in line with the IDRL Guidelines in newly developed DRM laws, as Malawi appears to have done in the development of the draft DRM Bill.

Finally, despite there being no comprehensive, binding IDRL instrument at the global, regional, or sub-regional level, the strides that regional organisations are taking with respect to IDRL are encouraging. In particular, SADC’s aim to develop an agreement on international humanitarian assistance could serve to promote a uniform approach to international disaster assistance in the region and ensure better coordination of international disaster assistance. As SADC is in the process of developing several new mechanisms to enhance regional disaster assistance, it is vital that states in the sub-region review their national laws and policies to ensure that they comprehensively regulate international disaster assistance. To this end, the development of a guiding regional instrument, such as the initiative currently underway in the AU, could potentially be a useful complementary tool to support states to develop such laws and policies at the national level. Given that the development of IDRL-related instruments is underway or planned by different regional organisations detailed above, it is important that these instruments be aligned to complement each other, avoid conflicting approaches, and ensure a cohesive approach to international disaster assistance in the region. This could be facilitated through the support of actors with expertise in disaster law, such as the IFRC, and through developing the instruments in line with existing international guidance tools, such as the IDRL Guidelines.

*

LLB LLM LLD (University of Pretoria), IFRC Disaster Law Coordinator for Southern Africa, IFRC Country Cluster Delegation for Southern Africa, Pretoria.

**

BA LLB LLM. IFRC Disaster Law Coordinator for Africa, IFRC Africa Regional Office, Nairobi, Kenya.

***

LLB LLM LLD (University of Pretoria), IFRC Disaster Law Officer, IFRC Country Cluster Delegation for Southern Africa, Pretoria.

1

IFRC, Legal Preparedness for International Disaster Assistance in Southern Africa: Regional Assessment and Country Profiles (IFRC 2021) 11.

2

Ibid.

3

Ibid.

4

IFRC, Introduction to the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2011) (IDRL Guidelines), para. 3.

5

See IFRC (n 1); IFRC, Law and Legal Issues in International Disaster Response: A Desk Study (2007).

6

See María Martínez, ‘Public Policy and Disaster Management: The role of Law in International Disaster Assistance in Africa’ in Gedion Onyango (ed), Routledge Handbook of Public Policy in Africa (Routledge 2021) 563–573, 565.

7

Ibid.

8

SADC was officially created through the Declaration and Treaty of the Southern African Development Community of 17 August 1992 (as amended by the Agreement Amending the Treaty of SADC of 14 August 2001) and is the successor of the Southern African Development Co-ordination Conference (SADCC). SADC comprises 16 Member States: Angola, Botswana, Comoros, Democratic Republic of Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, United Republic Tanzania, Zambia, and Zimbabwe.

9

The majority of the literature has been produced by international organisations. The Red Cross and Red Crescent Movement is particularly active in producing literature on the topic. See for example, IFRC (n 1); IFRC, International Disaster Response Law Research Report: Southern African Region (IFRC 2003); IFRC, Legal Preparedness for International Disaster Response in Namibia (2012); IFRC, Legal Preparedness for International Disaster Response in Mozambique (2012); IFRC, Legal Preparedness for International Disaster Response in Botswana (2012); Malawi Red Cross Society and IFRC, International Disaster Response Law (IDRL) in Malawi (2015); PIROI, IDRL in the South-West Indian Ocean: Study of Legal Frameworks to Facilitate and Regulate International Disaster Response in Union of the Comoros, Mayotte and Reunion, Madagascar, Mauritius, Mozambique, Seychelles, and Tanzania (2020) (summary report).

10

For a full review of binding and non-binding instruments relating to international disaster assistance, see IFRC, Law and Legal Issues in International Disaster Response (n 5), Part II.

11

See Framework Convention on Civil Defence Assistance, 22 May 2000.

12

See the United Nations Treaty Collection (UNTC), Framework Convention on Civil Defence Assistance <https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280086ecb&clang=_en> last accessed (as any subsequent URL unless otherwise specified) on 25 February 2022.

13

See art. 9 of the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, 18 June 1998 (Tampere Convention).

15

Convention on International Civil Aviation, 7 December 1944.

16

See arts. 5.11 and 5.12 of Annexe 1 of the Convention on the Facilitation of International Maritime Traffic, 9 April 1965.

18

Convention on the Facilitation of International Maritime Traffic, 9 April 1965. See IMO, Status of IMO Treaties, 10 February 2022 <https://wwwcdn.imo.org/localresources/en/About/Conventions/StatusOfConventions/Status%20-%202022.pdf>.

19

See the Protocol of Amendment to the International Convention on the Simplification and Harmonisation of Customs Procedures, 26 June 1999.

20

Convention on Temporary Admission, 26 June 1990.

21

See Annexes B3 and J5 of the Kyoto Convention; and Annexe B9 and D of the Istanbul Convention.

23

See WCO, Convention on Temporary Admission Position as regards signatures, ratifications and accessions (as at 25 November 2020) <http://www.wcoomd.org/-/media/wco/public/global/pdf/about-us/legal-instruments/conventions-and-agreements/conven tions/pg0302eb.pdf?la=en>.

24

Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 26 September 1986, arts. 1, 2, 3, 4, 7, 8, 9, 10, and 11.

25

See International Atomic Energy Agency, Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (status list as of 4 October 2022) <https://www.iaea.org/sites/default/files/22/06/cacnare_status.pdf> last accessed on 19 December 2022.

26

International Convention on Oil Pollution Preparedness, Response and Cooperation, 30 November 1990.

27

Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 15 March 2000.

28

See art. 7 on the Convention on Oil Pollution Preparedness, Response and Cooperation and art. 5 of the Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances.

29

See IMO (n 18).

30

Inter-Agency Standing Committee (IASC) Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (The Brookings – Bern Project on Internal Displacement 2011).

31

Ibid., Guideline II.1.

32

Ibid., Guidelines II.3 and II.1.

33

Ibid., Guideline II.2.

34

International Law Commission, Draft Articles on the Protection of Persons in the Event of Disasters (2016) arts. 10, 11, 15 and 16 available in the ILC, ‘Yearbook of the International Law Commission’, 2016, vol. II (Part Two) 25–26.

35

Ibid., arts. 4, 5 and 6.

36

See Resolution 4 of the 30th International Conference of the Red Cross and Red Crescent on the Adoption of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (30 November 2007).

37

Martínez (n 6) 566–567.

38

IDRL Guidelines (n 4) para. 8(2).

39

Ibid., para. 1(3).

40

Ibid., Parts IV and V.

41

African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 23 October 2009.

42

Ibid., for example art. 5(6) and art. XI(3).

43

African Charter on the Rights and Welfare of the Child, 11 July 1990.

44

AU, List of Countries which have signed, ratified/acceded to the ACRWC (as at 28 June 2019 <https://au.int/sites/default/files/treaties/36804-sl-AFRICAN%20CHARTER%20ON%20THE%20RIGHTS%20AND%20WELFARE%20OF%20THE%20CHILD.pdf>.

45

See the African Union, African Union Humanitarian Policy Framework (2015) 10.

46

See the AU Assembly, ‘Decision on the Common African Position on Humanitarian Effectiveness’ (30 January 2016) Assembly/AU/Dec.604 (XXVI). See also the AU, Concept Note for the AfHA <https://au.int/sites/default/files/newsevents/conceptnotes/38500-cn-pa26405_e_original.pdf>.

47

WHO Regional Office for Africa, Public Health Emergency Operations Center (PHEOC) Legal Framework Guide: A Guide for the Development of a Legal Framework to Authorize the Establishment and Operationalization of a PHEOC (2021).

48

SADC Protocol on Politics, Defence and Security Cooperation, 14 August 2001, art. 2(2)(l). See also SADC, Strategic Indicative Plan for the Organ on Politics, Defence and Security Cooperation (Revised Edition, 5 August 2010).

49

SADC Protocol on Health, 18 August 1999, art. 25.

50

See (n 48) and (n 49).

52

SADC MoU on the Establishment of a SADC Standby Brigade (4 September 2017) art. 3.

53

Southern African Research and Documentation Centre, ‘Understanding the SADC Standby Force’ (22 April 2021) <https://www.sardc.net/en/southern-african-news-features/understanding-the-sadc-standby-force/>.

54

SADC Disaster Preparedness and Response Strategy and Fund 2016–2030 (SADC 2017) 22–30.

55

See SADC, Terms of Reference: Consultancy to Support the Strengthening of SADC Regional Disaster Preparedness And Response Institutional And Coordination Mechanisms <https://www.sadc.int/files/3115/6209/3389/Final_TOR_Regional_Disaster_Preparedness_and_Response_Mechanisms.pdf>.

56

SADC Strategy (n 54) 47–50.

57

Ibid., 49–50.

58

Ibid., 32.

59

Ibid., 35–38.

60

Ibid., 30–31.

61

Ibid., 30–31.

62

Ibid., 30–31.

63

SADC Revised Guidelines on Harmonisation and Facilitation of Cross Border Transport Operations across the Region During the COVID-19 Pandemic (23 June 2020) SADC/C-EM/3/2020/2A, Guideline 3.1.1. See also Guideline 3.2.1(ii)(a).

64

Madagascar, Mauritius, and Seychelles announced the establishment of the IOC in July 1982; and a general agreement on regional co-operation was signed in January 1984 (the Victoria Agreement). France (representing Reunion) and the Comoros joined the IOC as full members in January 1986, bringing the IOC’s membership to five. See Giuseppe Schiavone, International Organizations: A Dictionary and Directory (Palgrave Macmillan 20087) 169.

65

See UNDRR, ‘Briefing on the Component “Building Resilience and Improving Institutional Capacity in Indian Ocean Island States for Disaster Risk Reduction” Implemented By UNDRR’ (2022) <https://reliefweb.int/report/comoros/resilience-building-and-disaster-response-management-indian-ocean-programme-briefing>.

66

See IFRC, International Disaster Response Law Research Report: Southern African Region (n 9).

67

Southern Africa Customs Union Agreement, as amended on 12 April 2013, art. 2(a).

68

Ibid., art. 20(3)(a).

69

Republic of Malawi, Disaster Preparedness and Relief Act (Cap. 33:05).

70

Ibid., sections 3 and 4.

71

Ibid., sections 5 and 13.

72

Government of Malawi, Disaster Risk Management Policy (2015) 5.

73

DPR Act (n 69) section 47.

74

The Policy (n 72) section 1.2.3.

75

Ibid., statement 3.6.1.6.

76

IDRL in Malawi (n 9) 31.

77

Ibid., 54.

78

Republic of Malawi, DRM Bill (7 May 2019), section 96(1).

79

IFRC, ‘Case Study: Disaster Law in Malawi’ (IFRC 2021) 1. See IDRL in Malawi (n 9).

80

Ibid.

81

DRM Bill (n 78) part X.

82

Ibid., sections 75(1) and (2).

83

Ibid., section 75(2).

84

Ibid., section 76(5).

85

Ibid., section 76.

86

Ibid., section 77.

87

PIROI (n 9) 24.

88

See the official website of the NDRRMC <https://ndrrmc.govmu.org/SitePages/Index.aspx>.

89

Republic of Mauritius, National Disaster Risk Reduction and Management Act 2 of 2016 (15 April 2016).

90

Ibid., section 4(1).

91

Ibid., sections 6(a) and (b).

92

Ibid., section 6(j).

93

Ibid., section 6(h).

94

Ibid., sections 15(1) and 16(1).

95

Ibid., section 17(1).

96

PIROI (n 9) 24. See NDRRM Act (n 89) Parts VI and VII.

97

The Republic of Mauritius, National Disaster Scheme (2015).

98

Ibid., 3.

99

See Republic of Mauritius, National Disaster Risk Reduction and Management Policy 2020–2030 (2021); Republic of Mauritius, National Disaster Risk Reduction and Management Strategic Framework 2020–2030 (2021); Republic of Mauritius, National Disaster Risk Reduction and Management Action Plan 2020–2030 (2021).

100

NDS (n 97) 41.

101

IFRC, Mauritius’ National Disaster Risk Management Act leads the way with community engagement (24 June 2021) <https://disasterlaw.ifrc.org/node/785>.

102

NDRRM Act (n 89), section 5(c). See also the NDS (n 97) page 3.

103

NDRRM Act (n 89) section 37(2)(i).

104

NDRRM Act (n 89) section 38(1).

105

Ibid., section 38(2).

106

Ibid., section 38(6).

107

Ibid., section 38(5).

108

Ibid., section 41.

109

Ibid., section 38(3).

110

Ibid., section 38(4).

111

NDS (n 97) 211.

112

Ibid.

113

Ibid., 27, 28, 76, 124, 227.

114

Ibid., 28 and 77.

115

Ibid., 110 and 148.

116

Strategic Framework (n 99) 32–37. See also the Sendai Framework for Disaster Risk Reduction (2015–2030), art. 33(p).

117

Republic of Namibia, Disaster Risk Management Act 10 of 2012 (3 September 2012) and Republic of Namibia, Regulations Made in Terms of the Disaster Risk Management Act 10 of 2012 (Government Notice 349 of 31 December 2013).

118

Republic of Namibia, National Disaster Risk Management Policy (2009) 1.

119

Republic of Namibia, National Disaster Risk Management Plan (2011) 5.

120

DRM Act (n 117) section 3(a)–(c).

121

Ibid., sections 40(1) and (2).

122

See Sanne Boswijk, ‘Windhoek Workshop Explores Namibia’s Legal Preparedness for Disasters’ (30 December 2011) <https://disasterlaw.ifrc.org/node/628>.

123

See Legal Preparedness for International Disaster Response in Namibia (n 9).

124

See Caroline Renold, ‘New Disaster Risk Management Act adopted in Namibia’ (31 October 2012) <https://disasterlaw.ifrc.org/node/65>.

125

DRM Act (n 117), section 5(q).

126

DRM Policy (n 118) section 5.5.2.

127

DRM Act (n 117) section 52(3)(c).

128

Ibid., section 52(2).

129

Ibid., section 52(3)(b).

130

DRM Regulations (n 117) regulations 12(1) and (2).

131

Ibid., regulation 12(3).

132

DRM Act (n 117) section 52(3)(a). See also the DRM Regulations (n 117) regulation 13, which provides additional details.

133

Ibid., section 52(3)(b).

134

Ibid., section 54(1).

135

Ibid., section 54(3). See also the DRM Regulations (n 117) regulation 15.

136

See for example the DRM Plan (n 119) section 4.2.3 and the DRM Policy (n 118) section 9.3.

137

DRM Policy (n 118) section 11.

138

The Republic of the Seychelles, Disaster Risk Management Act 15 of 2014 (19 August 2014).

139

Ibid., section 9(1).

140

Ibid., section 3.

141

Ibid., section 7.

142

PIROI (n 9) 21.

143

Seychelles DRM Act (n 138) sections 4(1)(e) and section 4(1)(b).

144

See Mireille Le-Ngoc, “Seychelles’ New Law Comprehensively Tackles Disaster Management Issues” (29 January 2015) <https://reliefweb.int/report/seychelles/seychelles-new-law-comprehensively-tackles-disaster-management-issues>.

145

Seychelles DRM Act (n 138) sections 28(1)(a) and (b).

146

Ibid., section 30(3).

147

Ibid., section 30(4)(a).

148

Ibid., section 30(4)(c).

149

Ibid., sections 30(4)(d), (e) and (f)(ii).

150

Ibid., sections 30(4)(f)(i) and (ii).

151

Ibid., section 30(4)(i).

152

Ibid., section 30(4)(g).

153

Ibid., section 30(4)(k).

154

Ibid., section 30(4)(h).

155

Ibid., section 30(4)(j).

156

Ibid., section 30(9).

157

Ibid., section 30(5).

158

Ibid., section 30(6).

159

Ibid., section 30(7).

160

Ibid., section 30(7)(a).

161

Ibid., section 30(7)(b).

162

Ibid., section 30(7)(c).

163

Ibid., section 30(7)(d).

164

Ibid., section 30(8).

165

See also PIROI (n 9) 22.

166

Ibid.

167

NIEMP, 51.

168

Republic of South Africa, Disaster Risk Management Act 57 of 2002 (30 December 2002) as amended by the Disaster Management Amendment Act 16 of 2015 (13 December 2015).

169

Republic of South Africa, Policy Framework for Disaster Risk Management in South Africa (2005).

170

DMA (n 168) section 4.

171

Ibid., section 5.

172

Ibid., sections 8 and 9.

173

Ibid., section 16(3).

174

Ibid., section 17(2)(o).

175

Ibid., section 27(2).

176

The Framework (n 169) section 1.4.5.

177

Ibid.

178

Ibid.

179

Ibid., section 1.4.4.

180

Ibid.

181

Ibid., section 1.4.5. See also section 7.4.1. 3 and section 7.7.11.2.

182

Sanne Boswijk, ‘South Africa Reviews its Flagship Disaster Management Law’ (23 September 2011) <https://disasterlaw.ifrc.org/node/71>.

183

IDRL Guidelines (n 4) para. 20.

184

Ibid., para. 14(2).

185

Ibid., para. 14(5).

186

IFRC (n 1) 177.

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