The Implementation Of International Disaster Response Laws Towards Indonesian Sovereignty
Abstract
In the last decade, the occurrences of natural and man-made disasters with devastating damage on affected societies in Indonesia have intensified. The 2004 tsunami in Aceh, the 2009 earthquake in West Sumatra and the 2010 Mount Merapi volcanic eruption are some of the natural disasters which caused severe destruction which was beyond the capacity of the host state to mitigate. International humanitarian assistance by international organizations and foreign non-governmental organizations were needed help the host state. The International Red Cross Federation and Red Crescent Societies initiated the International Disaster Response Law (IDRL) and in 2008, the UN General Assembly adopted three related resolutions. In 2007, the Indonesian Government enacted Law No. 24 of 2007 on Disaster Management in response. This legal instrument provides the legal basis for the international communities to help host states during emergency disaster response. However, the sovereignty of the host state must be respected in giving humanitarian assistance during the disaster response. Regardless of the severity of a disaster or the number of victims waiting to be rescued, state sovereignty cannot be superseded. In fact, the international organizations and foreign non-governmental organizations might be violating Indonesian sovereignty when providing humanitarian assistance during disaster emergency response situations. The objective of the research is to identify if the implementation of International Disaster Response Laws in Indonesia by international organizations and foreign non-governmental organizations during disaster emergency response situations violate the sovereignty of Indonesia. By using normative legal research with statute and case approaches, the research found that the implementation of International Disaster Response Laws during disaster emergency response situations clearly provides an opportunity for international organizations and foreign non-governmental organizations to violate the sovereignty of Indonesia.
Keywords: ImplementationInternational Disaster Response Lawdisaster managementinternational organizations and foreign non-governmental organizationsIndonesian sovereignty
Introduction
During the past decade, natural and man-made disasters of various scales have increased by the year in Indonesia. Experiences have shown that local governments and stakeholders within their capacity have proved their ability to handle small and medium scale emergency response (Amador, 2009), but in some circumstances, the host state sometimes cannot deal with this issue. For example, some instances of the large and mega scale natural disaster mitigation beyond the capacity of the local stakeholders were the 2004 tsunami in Aceh, the 2009 earthquake West Sumatera and the 2010 Mount Merapi volcanic eruption in Yogyakarta. In these cases, the local governments and other stakeholders (European Commission Humanitarian Aid and European Civil Protection, 2009), including the local community, needed the support and assistance of international organizations and foreign non-government organizations during disaster response (Guttry, Gestri, & Venturini, 2012).
The occurrence of disasters in Indonesia as well as in other countries has drawn the attention as well as support and assistance from the international community. As part of commitment towards partnership with local and global cooperation, especially if the disaster involves the loss of many lives and is beyond the capacity of the host state, no state refuses to accept the international assistance during emergency response without any due reason. As the international community has prioritised this issue, a number of treaties have been formulated to deal with this situation. Recently, the International Federation of Red Cross and Red Crescent Societies initiated the International Disaster Response Law (IDRL) Project with the aim of reducing the vulnerability and suffering of people affected by disasters.
The IDRL has resulted in some important conclusions and fundamental principles in order to guide the State or other international entities recognized under international law in giving the humanitarian assistance (disaster relief) to the host state. One of the most important principles, which has been agreed among states is that the sovereignty of host state must be respected in giving humanitarian assistance during the disaster response. Regardless of the severity of a disaster or the number of victims waiting to be rescued, state sovereignty cannot be superseded (Steinberger, 1987).
The Indonesian government tries to deal with those obstacles through the enactment of Law No 24 of 2007 on Disaster Management and a number of other Laws. In addition, a new National Agency for Disaster Management (BNPB) has been established to manage such areas. Through those Laws also, the government regulates the role and mechanism of international and non-governmental organizations in providing humanitarian assistance during disaster response situations. Yet, these laws are still faced with a basic weakness, thus, giving the international and non-governmental organizations a chance to violate Indonesian sovereignty.
Evidence shows some international and non-governmental organizations might be violating the Indonesian sovereignty when giving humanitarian assistance as disaster relief during disaster response situation. In looking at these facts, it is interesting to evaluate the implementation of International Disaster Response Laws in Indonesia and to investigate whether it violates Indonesian sovereignty during the disaster response situations.
Problem Statement
Does the implementation of International Disaster Response Laws in Indonesia allow international and foreign non-governmental organizations to violate the sovereignty of Indonesia during disaster emergency response situations?
Research Questions
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What is the potential threat of natural disasters occurring in Indonesia?
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What is the legal framework for disaster management in Indonesia?
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How is the International disaster response law in Indonesia implemented?
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What is the extent of violation of Indonesian sovereignty by the international disaster response organizations?
Purpose of this Study
The objective of this research is to identify whether the implementation of International Disaster Response Laws of Indonesia allows international and foreign non-governmental organizations to violate the sovereignty of Indonesia based on sovereignty principles.
Research Method
The research was conducted using uses normative legal research methods to answer the problem statement, which means that the research will show how the law regulates such conditions and the application of law itself. Normative legal research is used to find the truth of coherence, namely discovering whether the existing law is in conformity with the rule of law, whether the norms in the form of a command or prohibition is in line with the principles of law and whether one’s actions are in accordance with the norms of law or legal principles. The method of collecting data in this research was through library research from which conclusions were drawn from related documents, such as conventions, books, scientific journals, and others related to the main problem as the object of this research (Soemitro, 1990). The data was analyzed systematically using a juridical qualitative method. This means the research was analyzed based on international law, especially humanitarian intervention, focusing on the implementation of International Disaster Response Laws of Indonesia, while juridical qualitative means that the research would be based on the principle of law, convention, and other related regulations.
Findings
Potential Threat of Natural Disasters in Indonesia
Located in the area of Pacific Ring of Fire and lying on the juncture of four active tectonic plates, the Asian plate, Australian plate, Indian Ocean plate, and Pacific Ocean plate, Indonesia is one of the areas in the world with a lot of active volcanoes and seismic activities. Due to its geographic location, Indonesia has to cope with the constant risk of volcanic eruptions, earthquakes, floods and tsunamis due to tectonic activities.
On several occasions during the last 20 years, Indonesia has successfully drawn global attention due to devastating natural disasters (International Strategy for Disaster Reduction, 2004), which resulted in the deaths thousands of humans and animals. What is important to note is Indonesia’s notorious weak infrastructure caused by mismanagement (AHA Center, 2015), uncontrolled population growth and improper development in certain region in Indonesia. The other causes are lack of disaster risk assessment (Alemanno, 2011), lack of skills to deal with such disasters, or corruption. Disaster potential awareness in fact aggravates the resulting situation after a natural disaster has made its impact felt, meaning that natural disasters in Indonesia can cause more casualties and more damage than it should.
Volcanic Eruptions in Indonesia
Geographically, Indonesia has a number of active volcanoes. Volcanic arcs extend from the southern and eastern parts of Indonesia, from the islands of Sumatra, Java, Nusa Tenggara, and Sulawesi with old volcanic and low plains partially dominated by swamps. It is estimated that Indonesia has 129 active volcanoes, all carefully observed by the Center for Volcanology and Geological Hazard Mitigation, to predict the occurrence of natural disasters caused by the volcanic activity since a number of Indonesian volcanoes show continuous activity till nowadays.
Understanding the fact that Indonesia has the most active number of active volcanoes of all countries in the world, almost all Indonesian territories are aware of possible volcanic eruption, which can cause massive destruction.
Some notable volcanic eruptions in Indonesia’s recent history are listed below:
Earthquakes in Indonesia
Nearly all regions in Indonesia are prone to volcanic activity. Following this, a potential natural disaster, known as an earthquake, is highly possible.
Indonesia is one of the countries in the world that has a high level of seismicity; 10 times higher than the level of seismicity in the United States. That indicates that Indonesia is potentially in danger of suffering major disasters caused by earthquakes. Therefore, the Indonesian government should establish a well-prepared disaster management (Heribertus, 2013).
Since 1997, 24 earthquakes with a magnitude of 8 or more have been recorded in and around Indonesia. The 2004 Indian Ocean Earthquake with magnitude 9.1 Richter scale was the largest ever recorded in the past 30 years. The earthquakes that greatly impacted the Indonesian economy were the 2004 Indian Ocean Earthquake, the 2006 Central Java Earthquake, and the 2009 Sumatra Earthquake with the magnitude of 7.5 Richter scales (World Health Organization, 2010).
Tsunami in Indonesia
Indonesia is an archipelago comprising numerous islands which put together, makes it the country with the longest coastline in the world. It is surrounded by the sea, which under most circumstances would be an abundant natural resource. However, considering the geographic condition of Indonesia and the constant seismic activity, a submarine earthquake or volcanic eruption in the ocean can cause a tsunami which has a devastating effect on everything in its path. Seven tsunamis have caused more than 1000 deaths since the 17th century. The tsunami which struck on 26 December 2004, affected 11 countries, killing more than 225, 000 people mainly in Aceh and displacing an estimated 1.2 million (Imamura et al., 2011).
Due to the seriousness of the potential threat of natural or manmade disasters which can happen at any time, the Indonesian Government issued Law No 24 in 2007 on Disaster Management to establish a well-prepared disaster management system. Likewise, accepting the humanitarian assistance in the form of disaster relief during the disaster response from international or non-governmental organizations, the Government Regulation No. 21 of 2008 on Disaster Management and Government Regulation No. 23 of 2008 on International and NGO Assistance in Disaster Management are the instruments containing the fundamental principles of the mechanism regulating International and Foreign Non-Governmental Organizations in providing relief during disaster response situations in Indonesia.
The Legal Framework for Disaster Management
International Regulation on Disaster Management
The attention of the international community regarding disaster issues, particularly on the issue of disaster management, has developed significantly in recent decades, as clearly proven by the increasing number of relevant treaties which have been signed and ratified worldwide as well as part of commitment towards partnership in local as well as global cooperation on humanitarian assistance, especially if the disaster involves the loss of many lives (Konoorayar, 2013). There are now more than 200 international treaties (universal, regional, and even bilateral) regulating various matters related to the prevention, management of disasters, and post-disaster rehabilitation and reconstruction.
Until now there are no well recognized and comprehensive internationally agreed rules, principles, and standards for the protection and assistance of people affected by natural and man-made disasters. There are some existing relevant international legal instruments related to disaster management, among others:
International Conventions
International conventions comprise the following: the Convention Establishing the International Relief Union of 1927; Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency 1986; Framework Convention on Civil Defense Assistance of 2000; and The “Seville Agreement” on the Organization of International Activities of the Components of the International Red Cross and Red Crescent Movement of 1997.
UN Conventions
The United Nations has also convened a number of conventions as follows: the UN Convention on the Privileges and Immunities of the United Nations 1946; The International Strategy for Disaster Reduction of 1999; Optional Protocol to UN Convention on the Safety of United Nations and Associated Personnel 2005; The Hyogo Framework for Action (HFA) 2005-2015: Building the Resilience of Nations and Communities to Disasters adopted at the Second UN World Conference in Hyogo, Japan 2005; and the Sendai Framework for Disaster Risk Reduction 2015-2030 adopted at the Third UN World Conference in Sendai, Japan, on March 18, 2015 (United Nations Office for Disaster Risk Reduction, 2015).
Regional Cooperation Agreements
Regional cooperation agreements have also been formulated such as the EUR-OPA Major Hazards Agreement (Partial Agreement on the Prevention of, Protection Against, and Organization of Relief in Major Natural and Technological Disasters) 1987; ASEAN (Association of Southeast Asian Nations) Agreement on Disaster Management and Emergency Assistance 2005; and the Inter-American Convention Disaster Assistance 1991.
General Normative Guidance
These cover the UN General Assembly Resolution 46/182, 1991 “Strengthening of the coordination of humanitarian emergency assistance of the United Nations”; UN General Assembly Resolution 57/150 of 2002; and IASC Operational Guidelines on Human Rights and Natural Disasters (2006) and their Manual (2008).
Normative Guidance on Specific Issues
These cover the UN Principles on Internal Displacement; Civil-military-relations (OSLO Guidelines, MCDA (Military and Civil Defence Assets) Guidelines); and Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (IDRL Guidelines) 2007 (International Federation of Red Cross and Red Crescent Societies, 2011).
Other relevant legal documents
These documents include, but are not limited to, the Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disaster of 2000; the supplementary measures to enhance the implementation of the Seville Agreement of 2005; and the measures to Expedite International Relief of 1977.
One fundamental international instrument which regulates the mechanism and provides fundamental principles on disaster management in a time of disaster response is the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (IDRL Guidelines) 2007.
The guidelines are primarily intended as a set of recommendations to governments to help them to strengthen their own national laws and policies related to international disaster assistance. Using the guidelines, governments can prepare themselves to avoid the common bureaucratic barriers to relief (e.g., in visas, customs clearance, overflight and landing permission, tax exemptions, and recognition of domestic legal status) while also ensuring adequate systems of oversight and monitoring of the quality and coordination of relief efforts. This will help to ensure that affected communities receive the right aid at the right time.
The IDRL Guidelines recognize that the affected state holds primary responsibility for disaster response. However, if the state determines that the effects of a disaster exceed national capacities to respond effectively, it should seek regional/international assistance. Moreover, the IDRL Guidelines recognize that the state has the sovereign right to coordinate, regulate and monitor disaster relief and initial recovery assistance provided in its territory, consistent with international law (Crawford, 2012). The IDRL Guidelines state that international responders should comply with applicable national and international law, coordinate with government, and respect the dignity of affected persons (Harper, 2009).
The Implementation of International Disaster Response Law of Indonesia
The Mechanism of International Assistance during Disaster Emergency Response
The IDRL Guidelines recommend that disaster relief or initial recovery assistance should be initiated only with the state’s consent and, in principle, on the basis of an appeal. The state should decide in a timely manner whether to request for disaster relief or initial recovery assistance by assessing its needs and communicating its decision promptly.
The challenge in accepting international assistance is the practice of states invoking sovereignty to keep out foreign relief agencies. Indeed, relief agencies cannot have access to a disaster area without prior approval from the government of the disaster struck country. Regardless of the severity of a disaster or the number of victims waiting to be rescued, state sovereignty cannot be superseded. State sovereignty and humanitarian intervention are two concepts that, unless reconciled, will continue to limit the effectiveness of relief agencies.
Based on the BNPB Regulation No. 22 of 2010 on Guideline on the Role of International and Foreign Non-Governmental Organizations During Emergency Response, initiation or commencement of international assistance during emergency response includes triggers for the entry of international assistance, mechanisms, and permit for the entry of international assistance, that is a permit for organizations and personnel as well as for goods.
Triggers for the Entry of International Assistance
Humanitarian assistance from international and foreign non-government organizations may be accepted by the following triggers:
The magnitude of the disaster exceeds the government’s ability to overcome thereby requires the assistance of international and foreign non-government organizations; and
Statement from the government to accept the offer from the international and foreign non-government organizations in compliance with the needs of the affected area.
Mechanisms for the Entry of the International Assistance
The mechanisms are set out as follows:
State Sovereignty in International Disaster Relief during Emergency Response
In the late twentieth century, public international law is firmly grounded on the principle of State sovereignty, which implies that every sovereign State has the right to conduct its affairs without interference from outside (foreign States). As a consequence, the prohibition of intervention in domestic affairs is recognized as a customary rule having general application. This has been reflected in a number of well-known declarations and resolutions adopted by the United Nations bodies and international conferences, as well as in the jurisprudence of the International Court of Justice. In principle, the exercise by a state of any elements of sovereignty in the territory of a foreign State is a wrongful act (Krasner, 1999).
The sovereignty principle clearly suggests that disaster response falls within the jurisdiction of the State in whose territory the catastrophic of natural and man-made disaster has occurred (Gunawan, 2012). Whenever assistance from foreign states or international and foreign non-governmental organization is needed, it must be requested by the host state. Consent could arguably take the form of acquiescence, i.e., acceptance of relief provided without a request.
In any case, states, international and foreign non-governmental organizations providing assistance must keep within the limits of the consent given. Current treaties dealing with cooperation in the event of accidents and disasters are constantly based on those principles (Toman, 2006). If assistance is offered by foreign non-governmental organizations or other private foreign entities recognized under international law, the territorial state is free to admit them or to refuse entrance; admission entails their duty to abide by the laws and regulations of that State.
Meanwhile, International disaster response laws of Indonesia in Article 5 mention that international institutions or foreign non-governmental organizations that participate in disaster management shall prepare a proposal, a memorandum of understanding and work plan. Furthermore, Articles 6 and 7 regulate that a memorandum of understanding and work plan that shall be prepared by international institutions or foreign non-governmental organizations shall be under the coordination of the BNPB as the main actor for disaster management at the national level (ASEAN Regional Forum, 2015).
Those Articles, in line with traditional sovereignty principle in which sovereignty of Indonesia, shall be respected by international and foreign non-governmental organizations in giving humanitarian assistance in form of disaster relief during emergency response situation regardless how many people that are affected waiting to be rescued. State sovereignty cannot be violated by entering into Indonesian territory without a permit issued by the Indonesian Government.
On the other hand, Article 8 regulates that during the emergency response, international and foreign non-governmental organization can directly provide aid or disaster relief without going through the procedure as referred to in Articles 5 and 6. Disaster relief from international and foreign non-governmental organization shall be provided along with a list of personnel, logistics, equipment, and location of the activities. The list of requirements may be submitted before, on, or immediately after the aid arrival in Indonesia and also mobilization of personnel, logistics, and/or equipment shall have accessibility in accordance with the provision of legislations (Lai, He, Teck & Kai, 2009).
In the case of emergency response situations, the international disaster response laws of Indonesia facilitate international and foreign non-governmental organizations in providing disaster response. Therefore, without proper supervision, in this case, the sovereignty of Indonesia may be violated.
Case Study of International Assistance during Disaster Emergency Response in Indonesia
The implementation of IDRL through Indonesia’s legal instrument was established to overcome the common bureaucratic barriers to relief (e.g., in visas, customs clearance, overflight and landing permission, tax exemptions, and recognition of domestic legal status) while also ensuring adequate systems of oversight and monitoring of the quality and coordination of relief efforts. Furthermore, IDRL needs to analyze the recent disasters in Indonesia that caused massive destruction, like the West Sumatra earthquake in 2009 (United Nations Office for the Coordination of Humanitarian Affairs, 2009).
In the late afternoon of 30 September 2009, a powerful earthquake struck off the western Sumatra coast in Indonesia, measuring 7.6 on the Richter scale. The epicenter was 45 kilometers west-northwest of the port city of Padang, Sumatra (population approximately 900,000 people). Following the first powerful earthquake, a second earthquake measuring 6.2 on the Richter scale occurred 22 minutes later. Then a third earthquake struck in an inland area 225 km southeast of Padang on the early following morning measuring 6.8 on the Richter scale.
With the Indonesian President abroad at the time of disaster, the Vice President Jusuf Kalla led a coordination meeting of seven ministries, including BNPB, to analyze at least six assessment reports. BNPB confirmed that foreign Search and Rescue (SAR) teams were welcome as long as they were required. Following a cabinet meeting the next day, the President declared a state of emergency for a period of two months, on the basis of the various assessment reports. He also welcomed international assistance in coordination with national relief efforts.
In the following two weeks after the first meeting at the national level, the President categorized the earthquake as a provincial level emergency, after considering new assessment reports that limited the scale of its effects to one province. According to interviews conducted by IFRC (The International Federation of Red Cross, 2014) and PMI (
In this situation, it was understood that, in the crucial moments, there was no clear cooperation between the Indonesian government and the international and foreign non-governmental organizations about the information of the time of termination of disaster relief that should have been announced by host state to limit the extension of time in providing disaster relief by the international and foreign non-governmental organizations.
Speaking of international assistance, the international community which provided the humanitarian assistance were generous in their response to the West Sumatera earthquake. Two countries sent air and sea transport vehicles while others sent SAR and medical teams (including search dogs) equipment, shelter and medicines. In addition, some countries transferred substantial funds to the government and international institutions already based in Indonesia to implement the response. International NGOs based in Indonesia, and their local partners, were very active in providing relief, both as a specific response to this disaster and through existing development programs.
From some of the interviews conducted with an international and foreign non-governmental organization stakeholders by IFRC and PMI while conducting research the next year after the earthquake happened some very interesting information emerged. It transpired that these organisations continued to conduct their own assessments following the International Disaster Response Law without cooperation with the government. Moreover, some expressed a desire to continue doing so based on past practices.
This fact indicates that some international and foreign non-governmental organizations while giving disaster relief during disaster response in Padang 2009 violated the law that government and regional governments shall exercise supervision over entire stages of disaster management. This situation may have occurred due to the lack of trust by the international and foreign non-governmental organizations of the early assessment report made by the local authorities. Another reason may be that the global benchmark practices for wrapping up the emergency response stage required the international and foreign non-governmental organizations to undertake their own assessments for reporting purposes. This may explain why the international and foreign non-governmental organizations conducted their own assessments.
In reality, SATKORLAK (The Provincial Coordinating Body for Disaster Management) and BNPB appeared to have played a coordination rather than command role, with SATKORLAK coordinating the provincial level efforts and BNPB the national level. While the government did not make the decision on disaster management status for two weeks after the disaster, it appeared as though the response was carried out as if the disaster was of national rather than provincial status.
In accordance with the legal framework, BNPB should have appointed a commander once the emergency response stage commenced, in order to establish the various command posts and field posts and manage the coordination of relief efforts. However, according to stakeholder interviews, this did not happen until a later stage. Furthermore, some interviews suggested that the government did not identify and/or adequately disseminate information regarding a date for the end of the emergency response stage, whereas, according to the definition outlined in Law No. 24 of 2007, disaster emergency status should be determined for a certain period of time.
Overall, the international assistance during the emergency response in Padang 2009 was established well within the terms of the permit. In addition, there were no significant reports of problems relating to transport, immigration, customs, tax, and security - no aircraft were refused to land, and no SAR equipment and search dogs were refused entry. The Quarantine Department reported that search dogs were accompanied by the necessary documentation and entered the country through the designated entry points. In consideration of this, the violation of Indonesian sovereignty by the international disaster relief organisations in this particular case, can be considered to be minimal in view of the assistance, both in cash and kind, provided by these organisations. The only transgressions of sovereignty that were noted in the case study were in these organisations making their own assessments, which did not break any Indonesian laws.
Conclusion
The implementation of International Disaster Response Laws of Indonesia during the disaster emergency response clearly gives an opportunity for the international and foreign non-governmental organizations to violate the sovereignty of Indonesia. The violation of Indonesian sovereignty may be done by means of unlawful actions by the International and foreign non-governmental organizations, e.g., the International NGOs continued conducting their own assessments following the passing of the law without cooperation with the government. This situation may be caused due to the provision of Article 50 Paragraph 1 of Law No. 24 of 2007 on Disaster Management and Article 8 of the Government Regulation No. 23 of 2008 on Participation of International Organizations and Foreign Non-Government Organizations in Disaster Management. As refer to the conclusion, the author would like provide a suggestion as follows: The betterment of disaster management system should be done by Indonesia which concern on personal capacity to deal with foreign element in multilevel aspects of starting point of international assistance and high quality prepared disaster 73 management at both district and provincial level in order to response the international assistance during disaster.
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Gunawan*, Y., Arumbinang, M. H., & Pratama, N. B. (2019). The Implementation Of International Disaster Response Laws Towards Indonesian Sovereignty. In H. Kamaruddin, S. Tan, & R. X. Thambusamy (Eds.), Law, Environment and Society, vol 70. European Proceedings of Social and Behavioural Sciences (pp. 288-299). Future Academy. https://doi.org/10.15405/epsbs.2019.10.32