The International Law Commission (ILC) draft articles on the protection of persons in the event of disasters purport to "facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with respect to their full rights" by setting forth complementary principles governing both individual state responsibilities and international cooperation in disaster response. The principles presented in the draft articles reflect an application of established international law principles as well as current, practical challenges to coordinating international disaster cooperation. This article applies specific ILC draft articles targeting the role of the state impacted by a disaster to the United States' experience in managing international assistance in the aftermath of Hurricane Katrina. In particular, it highlights the critical responsibility of the national government to take advance, deliberate steps to implement the principles set out in the ILC draft articles--ensuring sufficient legal authorities and protocols and plans for implementing them in a disaster context--if it hopes to effectively maximize the supplemental resources available from the international community to support its domestic response to a catastrophic disaster.
TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW OF THE UNITED STATES AS AN "AFFECTED STATE" III. IS THAT A 'TES"?: CONSENT OF THE AFFECTED STATE TO EXTERNAL ASSISTANCE (ARTICLE 14) IV. RECEIVING GOODS FOR HURRICANE KATRINA: THE BALANCING ACT BETWEEN CONDITIONING AND FACILITATING EXTERNAL ASSISTANCE (ARTICLES 15 AND 17) V. CONTINUING CHALLENGE: STRIKING THE BALANCE FOR RESPONSE PERSONNEL. VI. CONCLUSION I. INTRODUCTION
The International Law Commission (ILC) draft articles on the Protection of Persons in the Event of Disasters (ILC draft articles) purport to "facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with full respect for their rights" (1) by setting forth complementary principles governing both individual state responsibilities and international cooperation in disaster response. The ILC draft articles reflect an application of established international law principles, such as those pertaining to sovereignty and humanitarian rights, (2) as well as recognition of current, practical challenges to the effective coordination of international disaster cooperation. For example, with respect to states (3) impacted by a disaster, the draft articles first set out the fundamental role and responsibilities of the sovereign state that are impacted by a disaster in Articles 11 and 12, and then show the inherent practical challenges faced by that state in draft Articles 14, 15, and 17. Specifically, the latter articles set out roles for that state in providing its consent to, conditions on, and facilitation of external assistance it will accept to support its response to those impacted by a disaster.
The draft articles are valid as far as they go, but they serve as flags, rather than solutions, to the practical challenges states must take up. Such an international legal instrument is arguably not the place to prescribe particulars of how states should give practical effect to the principles and goals set out by the articles. Indeed, this is not feasible given the diverse circumstances among states in terms of their individual existing emergency management legal framework, operational capabilities, degree of centralization in disaster responsibility, and extent of ancillary considerations, such as cultural or humanitarian practices. The commentary to the draft articles acknowledges in multiple contexts the intentional flexibility reflected in the drafting of these provisions. (4) It is incumbent on each state to determine what actions to take to meaningfully implement the intent of the draft articles based on that state's distinctive national situation--not just arising from an ongoing disaster, but in light of its existing legal and operational framework.
This Article will focus on the challenge of giving meaningful effect to certain ILC draft articles--particularly, the practical relevance of those draft articles that address the role of the state impacted by a disaster in contemplating international assistance in support of its national disaster response. The Article will examine these issues in the context of the U.S. government's experience as the "affected state"--largely drawing on its experience dealing with offers of "external assistance" in the aftermath of Hurricane Katrina--and subsequent U.S. efforts to strategically shape a mechanism that, in effect, balances the principles set out in ILC draft Articles 14, 15, and 17. (5) The goals of these articles posed the greatest practical implementation challenges to the U.S. government.
OVERVIEW OF THE UNITED STATES AS AN "AFFECTED STATE"
In terms of responding to disasters affecting its own territory and people, the United States comes from its own set of circumstances, distinct from those of many other states considering how to apply the ILC articles to their own circumstances. The U.S. experience and domestic legal framework posed both advantages and disadvantages when the United States first considered receiving international assistance in support of its disaster response operations.
First, the United States is fortunate to have a relatively comprehensive and well-established domestic legal and institutional emergency management framework based in the U.S. government's system of federalism. While the U.S. Constitution reserves to the U.S. states the authority and responsibility to protect the public health and safety of individuals within their territories, (6) the U.S. government recognized it had a role in supplementing state and local disaster relief efforts throughout the nineteenth and first half of the twentieth centuries. (7) The first general, standing authority for the federal government to respond to disasters was authorized in 1950. (8) In the 1970s, the United States secured both the legal and institutional precursors to today's U.S. emergency management structure: Congress enacted comprehensive U.S. emergency management law, which is the basis of the current authority for federal emergency management, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). (9) In 1979, the President integrated multiple emergency management-related agencies and offices into a new independent agency dedicated to the federal coordination of emergency management, the Federal Emergency Management Agency (FEMA). (10) These actions established a framework for the federal government to assist and supplement the United States' response capabilities and to generally coordinate federal, state, tribal, and local government roles across the range of emergency management areas: preparedness, hazard mitigation, response, and recovery. Since then, the U.S. government has also developed operational frameworks to clarify and guide response roles and coordination among federal agencies. (11) In addition, U.S. government agencies, as well as state and local governments, are--for better or worse--well practiced in implementing these legal and operational authorities in disaster response: in the last fifty years, the U.S. government has provided federal assistance for over 2100 declared major disasters and emergencies, and state and local governments have responded to many more incidents that did not warrant supplemental federal assistance. (12)
The United States also has an elaborate legal framework for regulating the entry and use of goods and people to the United States. About thirty laws regulating medicine, food, agricultural products, and related items are administered by fifteen agencies--with lead oversight by the U.S. Department of Health and Human Services (HHS), Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA), Food Safety Inspection Service (FSIS), and Animal and Plant Health Inspection Service (APHIS). (13) The U.S. Department of Commerce (DOC), the U.S. Department of Transportation, the National Highway Traffic Safety Administration (NHTSA), and the Environmental Protection Agency have regulatory oversight responsibility for other materials, vehicles, and equipment. Within the U.S. Department of Homeland Security (DHS), Customs and Border Control (CBP) is a lead agency for border management and control, including administration of general customs and entry requirements for both goods and personnel.
In spite of its robust history of disaster response engagement and purposeful establishment of legal and operational frameworks to respond to disasters, the United States is relatively inexperienced in accepting and integrating international assistance into its domestic response procedures. It was not until September 2005, when Hurricane Katrina slammed the Gulf Coast and caused massive destruction across five states due to wind, storm surge, dozens of tornadoes, and levee breaches, that the United States was faced with entertaining offers of international disaster assistance. Hurricane Katrina displaced over one million people from their homes and ultimately caused over $150 billion in damage, prompting more than $120 billion in federal aid. (14) All told, 151 countries and international organizations offered cash and in-kind assistance, including equipment, food, and other supplies, as well as response personnel and other technical experts. (15) FEMA and the U.S. government at large had no guidance or systems in place to ensure orderly consideration, acceptance, and utilization of such offers for the benefit of persons impacted by the disaster. FEMA, in coordination with the U.S. Department of State (DOS) and the U.S. Agency for International Development/Office of Foreign Disaster Assistance (USAID/OFDA), quickly established ad hoc processes for managing international...