When Disaster Strikes


Mike Kelly

When Disaster Strikes

by Eugene Curtin

International rule of national sovereignty can sometimes hamper relief efforts

Creighton law professor Michael Kelly is a member of a five-nation force trying hard to be irresistible. Before him, and the rest of his team, sits an immovable object that must be budged, at least a little.

It is unhelpful that the immovable object is a sacred concept of international law — the universal agreement that nations are sovereign and that their internal affairs are their own business. As Kelly points out, this foundational principle of international law has made progress and prosperity possible in many parts of the world.

But it also has enabled dictators and tyrants to impose criminally on their peoples, often using the shield of sovereignty to enrich themselves during times of natural disaster. It is this problem that Kelly wishes to tackle, along with his colleagues at the Four Societies organization, a gathering of legal minds drawn from Australia/New Zealand, Japan, Canada and the United States.

The result is a newly published book titled The International Law of Disaster Relief, published by Cambridge University Press.

“The problems we’re encountering with disasters is that there’s more of them, with climate change, and they’re more intense,” Kelly says. “The frequency of when and where they happen tends to be located in the developing world, which means they hit the societies least capable of dealing with them.”

The irony, Kelly says, is the nations believed to be contributing most to anthropogenic global warming are least affected by it.

“So the developed world, which is really driving climate change, has a moral responsibility to help the developing world where these disasters are occurring because in some ways we’re helping to cause them,” he says.

A typhoon survivor walks along the debris of destroyed houses in Tacloban, Philippines, in December 2013. Typhoon Haiyan made landfall in the Philippines in early November 2013 and left more than 6,100 dead and millions displaced in its wake.

That help is not lacking. The United States, in concert with other wealthy nations, reliably rushes food and medical aid to areas stricken by earthquakes and tsunamis. The problem begins when the aid becomes subject to border and import laws. In some cases, Kelly says, the leaders of developing nations confiscate the aid in order to reward their supporters and punish their enemies.

Because denying aid to a devastated people is abhorrent, Kelly says, a way must be found either to persuade corrupt governments to permit free access to affected areas, or else to circumvent their authority.

In other words, a way must be found to compromise their sovereignty, which, Kelly says, is a tough nut to crack.

“The sovereignty shield that international law affords every country from being interfered with by every other country is something that’s very robustly manifested by states that receive aid,” he says. “Especially states that don’t have either the rule of law or democratically elected governments.”

Kelly says the picture shouldn’t be painted too darkly. International aid does get through, he says, even when the world’s most problematic nations are involved. But so much more could get through, so much more swiftly, and with a much better guarantee of effectiveness if the current ad hoc rush to help was replaced by an organized protocol of procedures codified in international law.

A concept along those lines, known as “R2P,” or “Responsibility to Protect,” has gained traction in some legal circles, he says. The concept holds that nations may lose their sovereignty if they prove unable to provide for their peoples, to protect them, or to prevent activities within their borders that inspire violence against other nations.

A precedent exists within the Security Council of the United Nations, Kelly says, which can override sovereignty in crisis situations. But that power, he says, is much diluted by the veto power granted to China and Russia, both of which are frequently in league with oppressive regimes.