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In Times of Need: Natural Disaster Aid Pledges and Models for Responsive Giving

1 April 2012

In Times of Need: Natural Disaster Aid Pledges and Models for Responsive Giving

Katherine Pasker*

 

PDF Available for Official Citation 

Increasing attention is being paid to enhance the effectiveness, transparency, and adequacy of international relief aid after a natural disaster strikes. Most relief aid is provided by governments[1] and is dispatched in numerous ways. Bilateral disbursements through multilateral organizations like the United Nations (UN) and European Union (EU), or nongovernmental organizations (NGO) like the International Federation of the Red Cross (IFRC) are primary avenues for dispatching relief aid.[2] This relief, usually offered by “pledge,” has not in the past been considered a legally enforceable promise.[3] This is an outdated approach compared to other more institutionalized forms of state aid.[4] Many countries pledge money but not all disburse the promised funds.[5] As the cost, incidence, and destructiveness of natural disasters rises,[6] pledge fulfillment is a minimal and needed improvement in the area of humanitarian law.

To fully legitimize this improvement, countries need a method of enforcing disaster aid pledges. This Note proposes pre-contractual duty as a basis for enforcement of foreign state promises in the International Court of Justice (ICJ). Part I provides a historical overview of international natural disaster aid. Part II sketches out the legal bases and rationales for enforcing aid pledges. Part III discusses the natural disaster aid challenges alleviated or aggravated by enforcing pledges and models to counteract the aggravating side effects of enforcement. Ultimately, this Note seeks to question the fear of pledge enforcement as an insurmountable barrier to meeting international natural disaster aid demands.[7]

  1.        I.                        Picturing Natural Disaster Aid: International and State Practice of Giving

The development of the scholarship on multilateral natural disaster response has been a cumulative process. The rise of human rights law, advancements in heath and transportation technology, and growth of the knowledge base concerning the environmental unpredictability and uncontrollability of the root aggravating natural disasters were all preconditions to creating a space to discuss natural disasters. This discussion has led, slowly, to an understanding that natural disasters are, in part, just another consequence of geo-political forces that may or may not be shaped by the force of law.[8] This space was previously occupied only by claims of divine retribution and domestic paralysis in the wake of destruction.[9] These developments have enabled the awareness, sympathy, and the financial wherewithal to provide aid. This revolution in the desire and ability to impact the consequences of natural disasters has wrought a normative transformation on the international community. Because states can now aid, there is some sense that states must do so.

  1. State Practice

Most natural disaster aid scholarship begins after World War II.[10] A 21st century expectation of multilateral emergency response and teams of aid experts makes even the developments of the 1940s seem primitive. However, an analysis ignoring pre-WWII international and state practice overlooks instances which, while neither uniform nor institutionalized, color a modern understanding of the tradition of aid. These incidences provide ample evidence of an understanding of state natural disaster aid that predates the development aid regime,[11] the latter which today captures the majority of aid budgets worldwide.[12]

The first recorded bilateral aid response to a natural disaster came as a result of a massive earthquake that hit Lisbon, Portugal in November 1755.[13] England, Spain, and the city of Hamburg, Germany provided cash and goods to help get the city back on its feet.[14] The United States made its foreign disaster aid debut by appropriating $50,000 for Venezuela after an earthquake in 1812.[15] In 1871, the U.S. Congress authorized U.S. military vessels to transport food to famine stricken France and Germany.[16] The 1908 Messina, Italy earthquake that killed more than one-hundred thousand people, saw aid from the United States, Britain, Spain, France, and Germany.[17] These early examples demonstrate that disaster aid is not a 20th century phenomenon.

While a comprehensive review of state practice in providing for, administering, and selecting aid amounts is beyond the ambitions of this Note, a useful cross section should demonstrate some of the main challenges encountered by states, as well as the relevant theoretical and pragmatic limitations to a pledge enforcement model. It has been observed that:

[H]umanitarian intervention is subject to the vagaries of geo-political forces beyond the comprehension of even the most ardent student of or commentator on international affairs. The only clear trend seems to be that proximity to Western Europe enhances the chances that intervention will occur. Overall, intervention is adventitious, almost accidental, or even opportunistic in nature.[18]

 

It is generally agreed that until the IFRC came on the international scene at the beginning of 20th century, states operated their disaster response procedures on an ad hoc basis.[19] Because of the import of state practice on the progress of natural disasters, many have come to conclude that in terms of human suffering and destruction, there are no true natural disasters.[20]

U.S humanitarian aid was first administered by individual petitions to Congress for relief. These petitions most often asked for a return of previously paid taxes for goods that had otherwise been destroyed before delivery.[21] Upon recognizing the sheer volume of claims coming to Congress, its members began outsourcing the prerogative of aid to the executive branch.[22] Throughout the 19th and 20th centuries major domestic disasters for which aid was provided was brought by the President to Congress for the necessary funding.[23] Today, the United States primarily dispenses aid through its own foreign aid arm, USAID, which incorporates the dictates of U.S. fiscal budgetary processes, foreign policy as ordered by the President, and ongoing partnerships with the UN, IFRC, Organisation for Economic Co-operation and Development (OECD), and North Atlantic Treaty Organization (NATO).

Another major contributor to natural disaster aid is Japan.[24] Its aid regime began in 1953 and was exclusively a disaster response and preparedness model until 1992 as opposed to an economic development model.[25] Its funding capabilities are primarily channeled through the Ministry of Foreign Affairs to the United Nations High Commissioner for Refugees (UNHCR).[26] Because Japan itself is susceptible to numerous types of natural disasters, it is unique in its contribution of advanced preparedness training and prevention materials.[27] This expertise has made Japan a leader in organizing multilateral responses to disaster prevention and preparedness, including its role in hosting the 3rd World Conference on Disaster Reduction to take place in 2015.[28]

  1. International Practice
            A discussion of the panoply and intricacy of international actors that administer natural disaster aid could occupy its own treatise; however, for the purposes of this Note, the actors that dispense the highest amount of aid and the offices that fund them are of greatest interest. The major international aid dispensers are the UN, European Commission (EC), OECD, and IFRC. In the case of the UN and EC, their subsidiary organs like the Office of the Coordinator of Humanitarian Affairs (OCHA), International Monetary Fund (IMF), World Bank, and European Commission Humanitarian Office (ECHO) administer most of the aid that is disbursed in the event of natural disasters with varying levels of participation based on different segments of natural disaster aid process: disaster prevention, emergency response, redevelopment and rebuilding. While the UN has embraced the importance of providing natural disaster aid, most of the drafted agreements to that effect are scant on the details.[29] The most on-point General Assembly resolution is of particular opacity:
The magnitude and duration of many emergencies may be beyond the response capacity of many affected countries.  International cooperation to address emergency situations and to strengthen the response capacity of affected countries is thus of great importance.  Such cooperation should be provided in accordance with international law and national laws. Intergovernmental and non- governmental organizations working impartially and with strictly humanitarian motives should continue to make a significant contribution in supplementing national efforts.[30]

The relative vagueness of the UN – there is no mention of humanitarian aid pledges in the UN Charter – has contributed to the delay in the creation of the strong enforcement system. And, while the complexity of the disaster aid bureaucracy may at times overwhelm, this is no excuse for lax international practice. The formation of this system was slow, emerging in response to World War I, but requires an enforcement system to move beyond modest claims of hoping to reduce human suffering and to save lives.

The 1863 Geneva Convention signaled the first multilateral approach to peacetime disaster assistance but only as a preparedness measure for the destruction of war. Article 4 directs: “In peacetime, the Committees and Sections shall take steps to ensure their real usefulness in time of war, especially by preparing material relief of all sorts and by seeking to train and instruct voluntary medical personnel.”[31] This Convention gave life to national Red Cross societies which formed the International Federation in 1919 in the aftermath of World War I.[32] Today, the IFRC is one of the primary actors in natural disaster assistance operating more than eighty relief operations each year with an annual aid budget of nearly $400 million.[33][KCS1]

The impetus to create an institutionalized multilateral disaster organization came in response to the Italy, U.S., and Japan earthquakes of the early 20th century.[34] The International Relief Union (IRU), while never successful at providing aid, did advance the belief of a right to it. The organization’s attempts were unmistakable: “In the event [KS2] of a calamity, all peoples have an equal right to international mutual aid . . . without distinction according to race, nationality, or religion.”[35] The right was never formally adopted because of the same fear that keeps the international community from enforcing the right to aid today.[36] Due to a lack of funding and coordination, the IRU died along with the League of Nations in 1946.[37] Not until 1994 did the IFRC and other major disaster response agencies declare that “[t]he right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries.”[38] This new right should be advanced through enforcement of the pledge system.

  1. The Development of Pledge Aid

The method of pledging aid is a combination of both state and international practice. States pledge the most funds to natural disaster aid,[39] but companies and individuals are also capable of pledging aid to a particular disaster. Each donor type has the ability to pledge to recipient states or recipient agencies (typically NGOs) responsible for distributing the aid. Those pledges are recorded by numerous entities but eventually synthesized by the United Nations Financial Tracking Service. Today, most states have established aid budgets and are able to pledge funds quickly after disasters.[40]

Historically, the process of aid pledging was more complicated. To address need after a disaster, a requesting state or individual approached a legislative or executive body that then authorized its government’s treasury to disburse the requested funds.[41] Arguably the beginning of large scale disaster financing in the form of a pledge did not emerge until the Marshall Plan. This plan, announced in the form of a speech at Harvard University on June 5th, 1947 by U.S. Secretary of State George Marshall, communicated a rudimentary framework of rebuilding Europe after the ravages of war: “Our policy is directed not against any country or doctrine, but against hunger, poverty, desperation, and chaos.”[42] After the U.S. announcement of its willingness to pledge aid, countries met in Paris in an effort to draft “a European program and of later support of such a program so far as it may be practical for us to do so.”[43] This plan would eventually give out $13 billion, representing 1.1% of GDP and 7% of the federal budget during the years it was in effect.[44] The pledge model today is used most extensively in UN proceedings called Pledge Conferences where multilateral negotiations concern themselves primarily with long term development aid.[45]

Today’s natural disaster aid landscape is of a magnitude underestimated in many of the earlier formulations of foreign aid response. In 2009 alone, 351 natural disasters killed more than ten-thousand people and wreaked destruction valued at upwards of $41 billion.[46] In response, States and aid agencies contributed $310,799,158.[47] Unfortunately, $28,393,273 is still outstanding from original pledge amounts.[48] This phenomenon of unfulfilled pledge amounts is a manifestation of the difficulties in budgeting as well as lax state and international practice.[49] As demonstrated by some of the past decade’s most devastating disasters, pledged aid “promises mean little unless they can be translated promptly into accessible, flexible resources that make tangible improvements in the daily lives of long-suffering populations.”[50]

  1.     II.                        Pledge Enforcement and a Path to Responsive Giving
  2. Rationale for State Adherence
            In light of historical and contemporary state and international practice, creating a system of state pledge enforcement in natural disaster situations is not only imminently possible but also necessary. From an administrative perspective, the availability, reliability, and rights-based as opposed to popularity-based disbursement of funding cannot be satisfied by a regime based on ideal charity.[51] Donor states and private individuals give when it involves mass casualties, large-scale close-proximity suffering, and sudden media-grabbing catastrophes like floods, earthquakes, and hurricanes.[52]
            Institutions capable of creating a pledge enforcement system, such as the UN, are wary of doing so based upon alternate, but related theories: (1) that in the process of attempting to enforce pledges it will alienate major donors or (2) once successful in enforcing pledges, it will bring about a decline in giving.[53] This fear is not without foundation. The 1960s UN experiment of mandating contributions to a peacekeeping fund for Congo resulted in the organization’s near-bankruptcy.[54] However, peacekeeping missions are exactly the type of UN activity that requires long-term discretionary aid by states with underlying motivations wholly different from the disaster aid context.
            Fashioning a disaster aid enforcement system requires three major components. First, a willingness by states to adhere to aid commitments including subjecting themselves to ICJ jurisdiction for claims by affected states for failure to fulfill those commitments. Second, enforcement based on the rule of law with recognition of pledge fulfillment as a customary international norm. Third, grounding pledge enforcement in the regular course of disputes handled by the ICJ. Recommendations based upon this framework can give states an indication of what responsive giving might look like.

It is easy to understand why pledge enforcement for natural disaster aid is desirable for recipient states and NGOs. Affected states get the money they are promised. Donors are held to their commitments. NGOs have funding they can count on to address a crisis. This type of enforcement supports the notion that “[e]very human being has the inherent right to life.”[55] Because ninety-six percent of natural disaster deaths occur in developing countries[56] that do not have the kind of social safety net or prevention systems to militate against an emergency becoming a catastrophe, pledge fulfillment is a matter of life and death.

            What is less clear is why major donor states would also be interested in supporting (or at least not opposing) formalizing the natural disaster aid regime that would ultimately expose them to civil liability for failure to fulfill pledges. Some multilateral groups have been optimistic. The Organization of American States noted in its 1991 Inter-American Convention to Facilitate Disaster Assistance that “a genuine spirit of solidarity and good-neighborliness between the American states has been expressed in cases of disaster and that this spirit can be strengthened through a preparedness that makes it possible to act more efficiently . . . .”[57] Thankfully more than “solidarity” and “good-neighborliness” may motivate major donor states.

There are numerous rationales as to why large donor states might be interested in binding commitments. First, enforcing the disbursement of emergency, life-saving natural disaster aid is the least controversial type of aid[58] and the easiest type of aid to enforce considering states can already denote their offered aid as “commitments” subject to legal enforcement.[59] [KCS3] Second, enforcing pledges recognizes the interconnectedness of donor and recipient states and supports the maintenance of healthy trading relationships.[60] Large donor states that do not aid, or fail to fulfill aid pledges, enable longer disruptions in supply chains. Supply chain disruptions can harm the donor states’ own domestic economies.[61] Third, enforcement of natural disaster aid is an indirect method to address the effects of climate change.[62] Many natural disasters affect areas that are vulnerable due to climate change. Tsunamis hit coastal areas that are subject to flooding from higher sea levels. Droughts are a result of climate change effecting growing seasons. Futhermore, many of the largest disaster aid donors also have climate change concerns.[63] By agreeing to the enforcement of their own large donations, large donors recommit to the real costs incurred by climate change and can monitor the commitments of other large donors that are not so keen on climate change regulation. Fourth, this type of aid can be an additional method to address domestic security interests in a recipient state that are not tapped by traditional strategic efforts such as weapons sales or military base leases.[64] Fifth, emergency food aid can eliminate costly food surpluses in producer states without diminishing commodity demand or currency rates.[65] Sixth, stabilizing a state after a significant natural disaster will lessen population transiency and potential immigration appeals.

B.     Legal Basis for Enforcement
            While established treaty sources call for humanitarian assistance, there is no major multilateral treaty that definitively dictates that states are required to fulfill aid pledges in natural disasters. The greatest progress in natural disaster law has been in improving the exchange of information between states. In providing telecommunications equipment,[66] coordinating disaster prevention systems,[67] and developing stable disaster response resources[68] states have indicated increased cooperation in order to combat some of the aid challenges in delivering relief to a large number of people in a short period of time. The landmark multilateral agreement concerning telecommunications in natural disasters, the Tampere Convention, recognized, “the history of international cooperation and coordination in disaster mitigation and relief” in a declaration that includes more than 43 definitive signatories, three of which are in the top 10 largest state donors.[69]
            Norms are created through consistent state practice and a belief among states of a legal obligation to comply with the norm.[70] The treaties mentioned above speak to the involvement of numerous states in the process of providing disaster aid. A majority of states fulfill the majority of their aid pledges. The generality of the practice historically and contemporarily speaks to its consistency. Just because not all disasters are responded to in the same way and are approached in an understandably ad hoc fashion does not render the consistency of pledge enforcement flawed.[71] However:
 [A]n indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.[72]

This element highlighted by the ICJ, opinio juris, distinguishes simple habit from state practice with the force and effect of law. While some commentators believe that opinio juris is suspect in the matter,[73] [KCS4] several practical realities indicate otherwise. First, a duty to fulfill disaster aid pledges is necessary to effectuate other customary international norms.[74] Rights of food, shelter, and clothing are called into question when a state can cut off funding after it has already agreed to intervene in assisting a state with goods or cash. Second, states that consistently fail to fulfill their pledges will lose their credibility and respect.[75] Third, many states currently condition their pledges on concomitant action by domestic legislatures, indicating that if the condition was not imposed, the state would not consider itself bound to the pledge.[76]
            Requiring near express admittance by states of their duty to fulfill pledges begins to indicate that “respect for state sovereignty is an excuse, rather than a reason, for the inaction of the world community.”[77] Based on the objective indicator of consistent state practice and the practical implications for states by denying the obligation to fulfill pledges, fulfillment should be considered a customary international norm.
            An appeal for judicial enforcement of aid pledges is best advanced on a promissory estoppel theory. While some have discounted this theory’s viability on the difficulty of a state or organization to demonstrate detrimental reliance, or the theory being insufficiently “widespread or consistent to qualify as a general principle of law,”[78] these critiques view the doctrine much too narrowly and do not consider its applicability to the distinctive natural disaster situation. This doctrine qualifies as a general principal of law considering its widespread use and longevity.
            A proposed prima facie case for promissory estoppel pledge enforcement is evidenced by (1) a bona fide aid pledge (2) made by official state representations (3) which induces reasonable and foreseeable detrimental reliance on the part of the affected state (4) for which justice requires a remedy.[79] This formulation answers many of the concerns raised in using promissory estoppel within international law’s essentially mixed jurisdiction. While the civil law may not expressly recognize the doctrine of promissory estoppel, this failure to recognize the doctrine is likely because the civil law system does not need promissory estoppel.[80] The common and civil law’s recognition that a party should receive a remedy if it detrimentally relied on a promise that was not fulfilled is implicit in the notions of good-faith and fair dealing pronounced in both systems.
            The second prong satisfies the Civil Code’s demand that pledges, as gratuitous promises, be notarized in order to be enforceable within both the civil and common laws against, in this instance, bona fide state representatives.[81] Reasonable and foreseeable detrimental reliance, the hallmark of the U.S. promissory estoppel formulation is necessary and most likely the most difficult element for states to satisfy.[82] States would have to maintain meticulous records as to how they spent the money from other states in order to point to what specific detriment was suffered as a result of an unfulfilled pledge. For example, if a state pledges $15 million and the affected state directs that money to be spent purchasing semi-permanent structures as opposed to tents, based on the expectation of having the funding for the more durable structures, when the donor state only renders $10 million the affected state must cover the gap or decrease the numbers of shelters erected. Either end result indicates additional harm inflicted on the affected state by an unfulfilled pledge.
            The final prong of the promissory estoppel theory is based on the equity implicit in this doctrine. “[E]quity does not require a bystander to be a Good Samaritan and help another in distress. But if bystanders choose to intervene . . . they must intend to help the victim . . . and . . . at very least they must not do harm.”[83] This is the crux of enforcing aid pledges. The making of a pledge is completely voluntary, which decreases concerns about impinging on state sovereignty, but also recognizes that once a pledge is made that offer cannot leave the affected state in a worse position. Creating additional debts, exacerbating goods shortages, and abusing natural resources are examples of impermissible state aid interventions.
            Promissory estoppel is not a new theory for enforcing pre-contractual liabilities. The theory’s essence, that a state cannot fail to do what it has already promised, has been echoed since the days of Ancient’s Rome in the maxim venire contra factum proprium non valet.[84] The civil law has always allowed for the enforcement of gratuitous promises as long as the requisite formalities have been performed. Its roots in the common law derive from the 16th century English doctrine of assumpsit[85] and have allowed courts in the United States, Canada, and France to accomplish their “generally favorable disposition” toward enforcing charitable contributions.[86]
            While the doctrinal cogency and continuity belies a theory of enforcement, it is also the distinct methods of pledging that highlight natural disaster pledges as those worthy of enforcement opposed to development or peacekeeping pledges. The appeal, pledge, and delivery mechanics of standard aid commitments in development, peacekeeping or UN budgeting are much different from the immediate and reactionary needs placed on states when a natural disaster strikes and funding appeals are issued. Development and other aid pledges are made in distinct pledge conferences[87] where states can use aid money as bargaining tools to indicate policy preferences. Often the pledges are for amounts that will not be disbursed for some time or are requested for state building, military activities, etc. that reflect long-term policy decisions.[88] These types of pledges are too political for enforcement. Enforcement in this context would abrogate state sovereignty and discretion in foreign policy goals. The natural disaster context is much different. Natural disasters are not a result of political maneuvering. Disasters do not strike only allies, or only enemies. With proper recommendations on giving, providing aid need not be seen as a prize only for cooperative or ideologically similar countries. Pledges are required within hours, or at most a couple of days from when major disasters strike. Pledges are made through diplomatic channels and extended through television broadcast. Most importantly, relief begins immediately. The type of time lapse usually avoidable in other promissory estoppel situations is in a much abbreviated form in the natural disaster context. Relief funds are spent quickly in the life-saving phase of the aid operation; there is little time to balance budgets. In this way, necessity takes over, as a distinct but provocative incentive for pledge enforcement.[89]
            The abbreviated natural disaster response time frame also provides guidance on the question of remedies. While promissory estoppel normally lends itself to reliance-based damages, as opposed to expectation damages,[90]in this context they are likely the same. When a disaster strikes, the “[p]riority is quick spending, and  accountability to donors,”[91] not conservative assistance for fear of funding remaining unfulfilled. Reliance on the margins is not likely to determine the provision of aid like food, water, shelter, but certainly the quality of goods, their continuance, and the implementation of other recovery methods are definitely made precarious. This quality-of-aid connection will continue to gain currency as agencies and governments embrace aid that is forward-thinking in an attempt to leave victims better off than they were before the disaster rather than simply saving lives.[92]
            Promissory estoppel is a general principle of law. Based on its applications in both the common and civil laws, and emphasis on crucial state representations, it is the most effective enforcement method for disaster aid pledges. Pre-contractual duty, as opposed to a claim to the duty of humanitarian aid, is significantly more likely to warrant remedy to injured states without a more substantive treaty on which to base the claim.
C.     Forum for Enforcement
            The International Court of Justice is the most logical choice for the enforcement of aid pledges. The Court is not currently used for this type of enforcement because aid pledges have up until this point not been considered enforceable by the recipient state. Any commitments that are legally enforceable contracts are typically between businesses and recipient NGOs. However, although the Court is not currently being used for this purpose,  it does not mean the ICJ is somehow an incompatible forum.
            The use of this forum satisfies numerous concerns about the ability to enforce disaster aid pledges. The Court’s breadth of jurisdiction,[93] its synthesis of both common and civil law causes of action,[94] and its high profile make it a suitable forum. An attempt to enforce an aid pledge in any country’s domestic courts would prove too coercive. The Court’s jurisdiction is not exclusive to UN members but could embrace any promisor state.[95] By encompassing all “general principles of law”[96] the ICJ is not limited to the codification or jurisprudence of any state, allowing it greater novelty in contentious cases.[97] Promissory estoppel qualifies as one of those general principles of law. While there is some debate as to its application in contract or tort,[98] it is first a foremost a remedy of equity, a principle that “is implicit in the function of a world tribunal.”[99]
            While the UN may be comfortable with relegating itself to a voluntary contribution system for all of its financial resources, except certain assessed contributions based on a capacity-to-pay model, this need not be the case for states.[100] In the past, states have approached the ICJ for resolution of contract disputes.[101] A suit for a pre-contractual remedy would not fall outside such competence. Aside from the Court’s integrity, the visibility of its docket may prove the most beneficial element. While non-member states must consent to the Court’s jurisdiction,  – something a defendant state is not likely to do,  the mere attempt to enforce an aid pledge in the ICJ would be an embarrassing indictment against a donor country’s character. Fear of future enforcement action may provide some motivation for enforcement compliance. In this way, the ICJ is the best forum for enforcement of aid pledges.
 III.                        “[E]nsure that the cure is not worse than the illness”:[102] The Consequences of Disaster Pledge Enforcement
            It is not unfathomable that pledge enforcement may create more problems than it solves. Each disaster may demonstrate new or different externalities. While enforcement is intended to resolve some of the discrepancies in aid based on the type of donor and disaster decided by capricious political inclination, some differences will remain. Some disasters will simply be more expensive than others, or of a longer duration. The sophistication of government and non-governmental actors will vary. The externalities of aid enforcement may prove to be so negative and pervasive that they, in the end, direct toward a course absent enforcement. But, without at least an attempt at enforcement, disaster aid is relegated to the province of charity rather than human right.
A.    Benefits of Pledge Enforcement
1.      Consistency
            Disaster aid funding is an extremely variable form of financing large scale humanitarian projects. The public and media interest in the effected state and its citizens’ ability at “narrat[ing] themselves as the morally blameless victims of a sudden catastrophe . . . has largely determined the success or failure of a given claim.”[103] Reducing disaster aid to sob story fundraising with the goals of large amounts in little time promotes inefficiencies amongst aid providers and may lead others to question inequitable responses in future aid appeals.[104] Aid as an act of charity, as opposed to duty, has not eliminated a sense of entitlement and disappointment when similarly situated individuals are treated differently. By requiring the fulfillment of aid pledges and commensurate funding guidelines, states can choose appropriate aid amounts, amounts that then should provide reliable projections to states and NGOs about what a similar disaster in the future should net in aid contributions.
            The inequitable effects of under-pledging and unfulfilled pledging are demonstrated by comparing the Pakistan Floods and the Indian Ocean Tsunami. While impacting a greater number of people in Pakistan, the 2010 floods received one-third of the aid compared to states affected by the tsunami.[105] Additionally, unfulfilled pledges made up about twenty percent [KS5] of the total aid promised. The consistency afforded by enforcing aid pledges would negate the difference in pledge fulfillment rates and more accurately reflect the aid actually received.
2.      Threshold Incrementalism
            Enforcing aid pledges will likely make states more concerned about the amounts pledged. In turn, this may lead states to propose modest aid amounts until the full extent of the disaster is known. This hesitancy may only increase the pressure on states and NGOs to engage in intense fundraising in order to procure pledges but will promote move accurate, needs-based funding. Fundraising groups will be able to establish accurate aid budgets that will not later have to be shored up or “re-raised” should a state fail to fulfill its initial promise.
            The 2004 tsunami demonstrated this type of incrementalism. Over little more than a month, the United States steadily increased its aid pledge from $4 million to $15 to $35, to $350, and finally $950 million.[106] Under a pledge enforcement model, each of those amounts would present a baseline aid threshold that states and aid groups could work under, rather than second guessing whether or not an initial pledge would be honored, or which, in a series of pledges, could be expected to be fulfilled.
3.      Reduction of Waste
            While not a common problem, aid can sometimes overwhelm the actors and capacities charged with dispensing it. “Too generous humanitarian standards can also provide an incentive for humanitarian actors to request more funding, provide more handouts . . . and subsequently overstretch the emergency phase. Sometimes, ‘relief is the enemy of recovery following disasters, so minimi[z]e relief in order to maximize recovery.’”[107] Enforcing aid pledges will crack down on duplicative efforts by narrowing the field of what the pledge is supposed to accomplish, namely, emergency response. More modest aid pledges in this phase will keep it appropriately minimal as opposed to larger development projects that promote long-term improvement in a countries’ standard of living and infrastructure.
            In an environment of excess, aid states and NGOs do not typically reallocate the funds to other crises. In the 2004 tsunami, only one state donor and one NGO diverted excess aid to different humanitarian need in response to the overwhelming amounts.[108] In rare cases, such as the tsunami, an abundance of funding might present challenges to pledge enforcement if the funds were reallocated. However, this is not the typical humanitarian response climate.
4.      Reinforcement of State Primacy in Providing Disaster Aid
            States are frequently the best provider of aid because of their familiarity with internal affairs, established resources, and recognized authority. In the Pakistan earthquake of 2005, citizens expressed greatest satisfaction with the government’s provision of aid as opposed to international actors.[109] The majority of funding for the IFRC emergency response, seventy percent, comes from states.[110] It makes sense that the provider of funds should ultimately be responsible for their disbursement.
            The increased emphasis on state action is not based on pure monetary resources. Improving disaster response aid is not a matter of throwing money at an immediate harm and hoping that long-term state challenges like poverty, climate change, and healthcare will just disappear, or that states should monopolize the aid industry. It is manifestly clear that “[g]ood will and money . . . [are] no substitute for competence and knowledge of context.”[111] It is the very depth of knowledge associated with local government actors that lends for their increased involvement and which some aid agencies advocate.[112]
            For enforcement purposes, affected states would likely have difficulty in assembling a valid promissory estoppel claim originating from funds that were provided by a state to an NGO for the purposes of an affected state’s disaster. Acts by the NGO would likely cut the chain of reliance, or related tort concept, causation, if the funds were primarily handled by the NGO. Now, this call for greater government involvement is not a prescription against NGO participation; rather, it would make more sense for states to designate authorized NGOs to provide aid, requiring, as some NGOs have already recommended,[113] registered aid agencies with guarantees of best practices and qualified implementation.
5.      Decreasing Donor Exhaustion
            In tandem with consequences like increased aid consistency and incrementalist thresholds for aid, there is decreased likelihood for pledge exhaustion. Depending on the charity of states and individuals ultimately makes disaster response subject to a form of “first come first served” prioritization. The tail-end disasters of short term strings show markedly lower levels of aid and pledge fulfillment.[114] Through pledge enforcement this type of step-down pledge fulfillment scale will no longer manifest. Further, by more accurately and consistently funding disasters donor exhaustion will not come as a result of past disaster over funding.
B.     Challenges of Pledge Enforcement
1.      Discouraging Pledges
            Even with the benefits, the fear of discouraging aid makes states wary of demanding pledge fulfillment. “The ability of States to make voluntary, non-binding pledges supposedly stimulates a larger number of contributions than would be the case if pledges were considered to be enforceable, binding obligations. This view is flawed.”[115] Voluntary contributions may be a good model for private giving, but states operate within much more convoluted guidelines of budget limitations and foreign policy concerns. Aid should be a foreign policy goal, not merely a tool to reach a goal.
2.      Reducing Pledge Amounts
            The fear of reduced pledge amounts as a result of pledge enforcement is a likely result. As highlighted by some of the benefits of enforcement, however, that may not be a bad thing. Isolating the emergency response portion of aid will appropriately minimize it to only the immediate aftermath of a disaster. While some voluntary contribution programs have shown a steady rise in their receipt of aid,[116] this model may in fact be reducing potential aid. Highlighting the contributions of the biggest state donors may create disincentives for other states to give, contenting them instead with their role as an aid free rider.
3.      Tying Up Aid
            The enforcement of natural disaster aid pledges that emphasize life-saving aid, as opposed to development, may shorten the sight of pledging countries to further exacerbate the disconnect between prevention, response, and long-term recovery. Risk-management strategies emphasize continuity among these phases, and from a cost standpoint, each dollar invested in prevention saves four in response and recovery.[117] Highlighting, through promissory estoppel, the specific detriment suffered by states for a failure of another to deliver on a pledge, may keep affected states or designated NGOs from putting aid to its best use, and instead tethering it to inefficient emergency response measures merely to guarantee future enforcement.
C.     Models of Giving to Reduce Barriers to Disaster Aid Pledge Enforcement
            In response to various disasters, affected states, NGOs, or multilateral organizations should design aid based on multi-factor apportionment. These factors should assist in diminishing the negative externalities caused by pledge enforcement. By highlighting one, two, or three of the factors, based on the nature of the disaster, the role of states change. Not every state will be appealed to for aid after each disaster. Relationships between states based on more than relative GDPs or proximity will foster more nontraditional diplomatic ties. Aid will be directed based more on the demands of the situation rather on the mood of those who have aided in the past. The following factors should delineate the source and amounts of aid:
*Proximity of the affected state.[118]
*Wealth of the pledging country (capacity-to-pay model).[119]
*Trading partners of the affected state.
*Wealth of the affected state.
*The severity of the disaster.
*The frequency of the disaster type.
*The ethnic heritage similarities of the affected and pledging state.[120]
These factors have the ability to not only reduce the negative effects cautioned by enforcement, but to also increase aid by appealing to similarity and need narratives.
 IV.                        Conclusion
            Enforcement of disaster aid pledges is the next natural step to improving the quality of international disaster response law. With a more stable form of funding, states and NGOs can work on improving the allocation of funds that should find themselves more evenly distributed between disasters. Pledge fulfillment will empower chronically affected states to receive the necessary assistance and prompt accountability from pledging states. This step, merely incremental in advancing the rights of natural disaster victims, will equip states with a tool to protect life and enhance the “offices of humanity.”[121]

 



* J.D. Candidate 2012, University of Minnesota Law School; H.B.A, University of Utah, 2009.

[1] For 2009 alone, the OECD’s Development Assistance Committee, composed of twenty-three countries and the EU, provided $829,260,000 in disaster response aid as opposed to the $32,040,000 provided by multilateral agencies. Organization for Economic Co-Operation and Development (OECD), QWIDS: Query Wizard for International Development Statistics, http://stats.oecd.org/qwids/.

[2]See Rohan J. Hardcastle & Adrian T. L. Chua, Humanitarian Assistance Towards a Right of Access to Victims of Natural Disasters, 325 Int’l Rev. Red Cross 589, 596–97 (1998), available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JPJD.

[3] See Shepard Forman & Stewart Patrick, Good Intentions—Pledges of Aid for Postconflict Recovery 13 (2000) (“[A] pledge denotes a public expression of donor intent to mobilize funds for which an approximate sum is given. Although aid pledges shape public and official expectations in both recipient and donor countries, donors themselves do not treat pledges as an official aid category (indeed, they often fail to keep track of them).”).

[4] These other forms include loans from the IMF, bilateral development aid, and peacekeeping funds expended by the United Nations.

[5] See Forman & Patrick supra note 3, at 1.

[6] See Int’l Federation of Red Cross & Red Crescent Soc’y, World Disasters Report 2010: Focus on Urban Risk 188 (2010) (“Compared to 1990–1999, the past decade has seen disaster deaths rise by 23 per cent and the numbers affected by disasters rise by 15 per cent.”) [hereinafter IFRC World Disasters Report 2010].

[7] For purposes of clarification, this Note is only concerned with natural disaster aid, not development aid generally. This distinction is crucial to both the practical and legal implications of enforcing the payment of natural disaster pledges. For further discussion of the distinction in types of aid and for an in depth look at the impact of the foreign development aid regime in the past fifty years, see generally I.M.D. Little & J.M. Clifford, International Aid: A Discussion of the Flow of Public Resources from Rich to Poor Countries 17 (2006).

[8] See Int’l Federation of Red Cross & Red Crescent Soc’y, World Disasters Report 2000: Focus on Public Health 147 (2000) (“The mid-19th century revolution in transportation and communication made possible the first systematic efforts at international cooperation in humanitarian action.”) [hereinafter IFRC World Disasters Report 2000].

[9] See John F. Hutchinson, Disasters and the International Order: Earthquakes, Humanitarians, and the Ciraolo Project, 22 Int’l Hist. Rev. 1, 5–6 (2000). The claim that natural disaster victims are the targets of God’s wrath unfortunately still resurfaces from time to time. See Michael Eric Dyson, Come Hell or High Water: Hurricane Katrina and the Color of Disaster 181 (2006); Levi McLaughlin, Tokyo Governor Says Tsunami is Divine PunishmentReligious Groups Ignore Him, Religious Dispatches, Mar. 17, 2011, http://www.religiondispatches.org/archive/politics/4399/tokyo_governor_says_tsunami_is_divine_punishment%E2%80%94religious_groups_ignore_him/ (last visited Feb. 5, 2012).

[10] See Carol Lancaster, Foreign Aid: Diplomacy, Development, Domestic Politics 1 (2007).

[11] See supra text accompanying note 7.

[12] Only ten percent of the world’s aid budget is spent on humanitarian assistance, of which natural disaster aid is even a smaller fraction. See World Econ. Forum Global Agenda Council on Humanitarian Assistance, A New Bus. Model for Humanitarian Assistance? 10 (2009), available at http://www.international-alert.org/pdf/A_new_business_model_for_humanitarian_assistance_WEF_Nov09.pdf.

[13] See Hutchinson, supra note 9, at 4.

[14] See id. at 5.

[15]See An Act for the Relief of the Citizens of Venezuela, 12th Cong., 2 Stat. 730 (1812).

[16] See A Resolution Authorizing the Use of a Naval Vessel to Transport Breadstuffs to Europe, 41st Cong., 16 Stat. 596 (1871).

[17] See An Act for the Relief of Citizens of Italy, Ch. 7, 35 Stat. 584 (1909).

[18] Mirko Bagaric & John R. Morss, Transforming Humanitarian Intervention from an Expedient Accident to a Categorical Imperative, 30 Brook. J. Int’l L. 421, 423 (2005).

[19]See Alejandra de Urioste, When Will Help Be on the Way? The Status of International Disaster Response Law, 15 Tul. J. Int’l & Comp. L. 181, 192 (2006).

[20] See Michael P. Powers, A Matter of Choice: Historical Lessons for Disaster Recovery, in There is No Such Thing as a Natural Disaster: Race, Class, and Hurricane Katrina 13, 24 (Chester Hartman & Gregory D. Squires eds., 2006) (“While catastrophic natural events are not under man’s control, the underlying physical and socioeconomic factors they reveal are. Disasters, though terrible, offer an opportunity to correct these problems.”); see also Stephen Green, International Disaster Relief: Towards a Responsive System 12 (1977) (“Poor planning, politically motivated neglect, and bad administration often vastly augment the suffering caused by droughts, high winds, floods, fire and fissures in the earth.”).

[21] See Michele L. Landis, “Let Me Next Time Be ‘Tried by Fire’”: Disaster Relief and the Origins of the American Welfare State 1789-1874, 92 Nw. U. L. Rev. 967, 978–79 (1998).

[22] See id. at 987–88.

[23]See id.

[24] See U.N. Central Emergency Response Fund, Donors, http://ochaonline.un.org/cerf/Donors/Donors/tabid/5370/language/en-US/Default.aspx (last visited Feb. 5, 2012). For a profile of Japan’s foreign aid regime, see Japan Country Profile, Global Humanitarian Assistance, http://www.globalhumanitarianassistance.org/wp-content/uploads/2011/03/gha-profile-japan-final1.pdf (last visited Feb. 5, 2012).

[25] See Makiko Watenabe, Japan’s Humanitarian Assistance, Humanitarian Exchange Magazine, Mar. 2004, http://www.odihpn.org/report.asp?id=2617.

[26] See id.

[27] See Outline of Humanitarian Aid Policy, Ministry of Foreign Affairs of Japan, Aug. 2011, at 3, http://www.mofa.go.jp/policy/emergency/pdfs/outline_hap.pdf.

[28] See id.

[29] See, e.g., 1976 ASEAN Declaration for Mutual Assistance on Natural Disasters, Association of Southeast Asian Nations, June, 26, 1976, http://cil.nus.edu.sg/rp/pdf/1976%20ASEAN%20Declaration%20on%20Mutual%20Assistance%20on%20Natural%20Disasters-pdf.pdf.

[30] G.A. Res. 46/182, ¶ 5, U.N. Doc. A/RES/46/182 (Dec. 19, 1991).

[31] Resolutions of the Geneva International Conference, art. 4, Oct. 26–29, 1863, available at http://www1.umn.edu/humanrts/instree/1863b.htm.

[32] See Int’l Federation of Red Cross and Red Crescent Societies, Who We Are: History,  http://www.ifrc.org/en/who-we-are/history/ (last visited Feb. 5, 2012) [hereinafter Who We Are: History].

[33] See IFRC, Independent Auditor’s Report: On the IFRC’s Financial Statements for the Pakistan Earthquake Emergency Appeal (M05EA022) for the Period 1 August 2009 – 31 December 2010 (Dec. 16, 2011), http://www.google.com/url?sa=t&rct=j&q=ifrc%2C%20independent%20auditor%E2%80%99s%20report%3A%20on%20the%20ifrc%E2%80%99s%20financial%20statements%20for%20the%20pakistan%20earthquake%20emergency%20appeal%20&source=web&cd=1&ved=0CCMQFjAA&url=http%3A%2F%2Fadore.ifrc.org%2FDownload.aspx%3FFileId%3D22007&ei=WqgxT78J64CyAqrAydwG&usg=AFQjCNGjyAWnmAAZCP9FuDqYoMqYVrWQyQ&cad=rja. See generally Hardcastle & Chua, supra note 2; Who we are: History, supra note 32.

[34] See Hutchinson, supra note 9, at 4.

[35] John F. Hutchinson, Disaster and the International Order II: The International Relief Union, 23 Int’l Hist. Rev. 253, 261 (2001) (quoting Compte-rendu proviso ire des travaux de la commission d’étude du project Ciraolo (séances tenues à Genève les 25 et 26 mai 1925), LN 12/44522/41377, box R687, pp. 10-11).

[36] See id. at 262 (“The willingness of the public to give voluntary contributions would certainly diminish if instead of appealing to its generosity, they demanded contributions as a right for the victims of a disaster. Moreover, if the victims thought that the assistance was given to them not out of charity but as their due, not only would those who received less than they thought they needed feel no gratitude, but on the contrary they would show discontent, which in its turn would have a regrettable influence on the generosity of contributors . . . .”).

[37] See Peter Macalister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organization 20–21 (1985).

[38] IFRC & Int’l Conference of the Red Cross and Red Crescent, The Code of Conduct for the Int’l Red Cross and Rec Crescent Movement and NGOs in Disaster Relief (1995), http://www.ifrc.org/Docs/idrl/I259EN.pdf.

[39] See, e.g., U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters 2011: Summary of Contributions, http://fts.unocha.org/reports/daily/ocha_R9_Y2011___1103260205.pdf (last visited Feb. 5, 2012).

[40] See David M. Potter, Japan’s Aid to Thailand and the Philippines 3–6 (1996).

[41] See Landis, supra note 21, at 979.

[42] Secretary of State George Marshall, Address at Harvard Law School Commencement (June 7, 1947).

[43] Id.

[44] See 149 Cong. Rec. S23717 (daily ed. Oct. 1, 2003) (statement of Rep. Coleman).

[45] See Henry G. Schermers & Niels M. Blokker, International Institutional Law 649–50 (1995).

[46] See IFRC World Disasters Report 2010, supra note 6, at 160.

[47] See U.N. Office for the Coordinator of Humanitarian Affairs, Natural Disasters 2009: Summary of Contributions,  http://fts.unocha.org/reports/daily/ocha_R12_Y2009___1010151549.pdf (last visited Feb. 6, 2012).

[48] Id.

[49] No state has ever been subject to sanctions for its failure to fulfill its pledges. See Schermers & Blokker, supra note 45, at 658–59.

[50] See Forman & Patrick, supra note 3, at 6.

[51] See IFRC World Disasters Report 2000, supra note 8, at 132 (“Humanitarian organizations trying to develop operational capacity in disaster preparedness are frustrated by the voluntary and unpredictable financing of their operations, and by simultaneous demands to respond to today’s crises while preparing for tomorrow’s. As well as emergency response teams, some agencies call on dedicated emergency funds when donors delay or fail to deliver.”).

[52] See Bagaric & Morss, supra note 18, at 435–36;

Claude de Ville de Goyet & André Griekspoor, Natural Disasters, the Best Friend of Poverty, 14 Geo. J. on Poverty L. & Pol’y 61, 77 (2007).

[53] The numbers on the potential decrease in aid are unavailable, but the current system of voluntary contributions has kept humanitarian aid at a near constant rate of ten percent of all aid since the early 1990s. See World Econ. Forum Global Agenda Council on Humanitarian Assistance, supra note 12, at 10.

[54] See G.A. Res. 1619 (XV), U.N. Doc. A/RES/1619(XV) (April 21 1961); David H. Popper, Lessons of United Nations Peacekeeping in Cyprus, 64 Am. Soc’y Int’l L. Proc. 1, 7 (1970).

[55] International Covenant on Civil and Political Rights art. 6, Dec. 16, 1976, S. Exec. Rep. No. 102–23, 999 U.N.T.S 171.

[56] See IFRC World Disasters Report 2000, supra note 8, at 134.

[57] Organization of American States, Inter-American Convention to Facilitate Disaster Assistance, Preamble, June 7, 1991, http://www.oas.org/juridico/english/sigs/a-54.html (last visited Feb. 6, 2012).

[58] See Paula Hoy, Players and Issues in International Aid 3 (1998).

[59] Currently, legally binding commitments are between the donor (state, company, individual) and the appealing agency, embodied in signed contracts. See Humanitarian Glossary System, Common Country Assessment, http://www.reliefweb.int/glossary/pageloader.aspx?lista=C.

[60] See Paula Hoy, supra note 58, at 1.

[61] E.g., Peter Valdes-Dapena, Supply Crunch on Black and Red Fords, CNN Money (Mar. 25, 2011, 1:02 PM), http://money.cnn.com/2011/03/25/autos/ford_black_red_japan/index.htm?hpt=T2.

[62] See Int’l Federation of the Red Cross, Disasters in Asia: The Case for Legal Preparedness 1, 2 (2010), available at http://www.ifrc.org/docs/pubs/disasters/IFRC_IDRL_Report_EN.pdf (“Good laws and legal frameworks are essential to how we reduce the risks, and how we prepare and respond. Presidents and parliaments cannot order the atmosphere to cool down or the earth to stay still but they can do a great deal to reduce the human suffering that growing disasters bring.”).

[63] The European Union’s climate change initiative is one of the most aggressive proposed and the EU has become the international leader in environmental policy. See John Volger & Charlotte Bretherton, The European Union as a Protagonist to the United States on Climate Change, 7 Int’l Stud. Persp. 1, 2 (2006). The EU countries of Sweden, Netherlands, Germany, and the United Kingdom have at least once over the past five years been in the top ten list of largest natural disaster aid donors. See U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters (2011), supra note 39; U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters (2010), available at http://fts.unocha.org/reports/daily/ocha_R9_Y2010___1011080204.pdf; U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters (2009), supra note 47; U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters (2008), available at http://fts.unocha.org/reports/daily/ocha_R9_Y2008___1103260205.pdf; U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters (2007), available at  http://fts.unocha.org/reports/daily/ocha_R9_Y2007___1103260205.pdf.

[64] See Paula Hoy, supra note 58, at 18.

[65] See id. at 19.

[66] See Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations, June 18, 1998, 2296 U.N.T.S. 5 [hereinafter Tampere Convention].

[67] See Association of Southeast Asian Nations, Agreement on Disaster Management and Emergency Response, July 26, 2005, http://www.asean.org/17579.htm (last visited Feb. 6, 2012).

[68] See Agreement Establishing the Caribbean Disaster Emergency Response Agency, Sept. 1991, http://www.cdera.org/about_cdera_agreement (last visited Feb. 6, 2012).

[69] See Tampere Convention, supra note 66; U.N. Office for the Coordination of Humanitarian Affairs, Natural Disasters (2010), supra note 63; International Telecommunications Union, The Tampere Convention—A Life-Saving Treaty, http://www.itu.int/ITU-D/emergencytelecoms/tampere.html (last updated Nov. 17, 2011).

[70] See Mark Eugen Villiger, Customary International Law and Treaties 3–4 (2d ed. 1985).

[71] Contra Macalister-Smith, supra note 37, at 5.

[72] North Sea Continental Shelf (Ger./Neth.), 1969 I.C.J. 43, ¶ 74 (Feb. 20).

[73] See Hardcastle & Chua, supra note 2; Urioste, supra note 19.

[74] See Hardcastle & Chua, supra note 2.

[75] See James E. Archibald, Pledges of Voluntary Contributions to the United Nations by Member States: Establishing and Enforcing Legal Obligations, 36 Geo. Wash. Int’l L. Rev. 317, 372 (2004).

[76] See id. at 329.

[77] See Bagaric & Morss, supra note 52, at 423.

[78] See Archibald, supra note 75, at 352.

[79] See Restatement (Second) of Contracts § 90 (1981); David V. Snyder, Comparative Law in Action: Promissory Estoppel, the Civil Law, and the Mixed Jurisdiction, 15 Ariz. J. Int’l & Comp. L. 695, 721 (1998).

[80] See Snyder, supra note 79, at 705 (“The command of the Code civil that contracts be performed in good faith has been read broadly and extended to precontractual negotiations. Taken together with the vast scope of the delictual articles (and associated doctrines, such as abuse of rights), French law is well equipped without promissory estoppel.”).

[81] See Code Civil [C. civ.] art. 931, 1124 (Fr.); Bürgerliches Gesetzbuch [BGB] [Civil Code] Reichsgesetzblatt [RGBl.], as amended Jan. 2, 2002, § 518 (Ger.); Snyder, supra note 79, at 748; see also Code Civil  [C.civ.] art. 1119 (Fr.). States must be responsible for official representations made manifest through official diplomatic channels as well as press and other media releases that include statements by state officials regarding promised aid. Ultimately, these representations will require case-by-case analysis since each state has a different method of announcing forthcoming aid after a discrete disaster and different officers would manifestly be in more of position to make such representations than others. For example, an announcement by President Bush in the aftermath of the Indian Ocean Tsunami is an official representation considering the President’s unique province over foreign affairs, as well as his role as the chief executive. An announcement by a U.S Supreme Court Justice of the same aid would not be an official representation because the justice is not constitutionally equipped, though holding a high government position, of making such government obligations. See Archibald, supra note 75, at 368 (“As a general principle of law, a State’s official expressions may give rise to estoppel.”).

[82] See Michael Flint & Hugh Goyder, Funding the Tsunami Response 27 (2006), available at http://www.alnap.org/pool/files/funding-final-report.pdf (“Very little is known at an aggregate level about what funds are actually received by a government, community or individual. This makes it hard to answer the question of whether a pledge has been delivered and what proportion of the original commitment has resulted in the delivery of a benefit.”).

[83] Helen Stacy, Humanitarian Intervention and Relational Sovereignty, 7 Stan. J. of Int’l Rel. (2006), http://www.stanford.edu/group/sjir/7.1.06_stacy.html (last visited Feb. 6, 2012).

[84] See Snyder, supra note 79, at 705 (“[O]ne is not allowed to go against his own act.”).

[85] Eric Mills Holmes, Corbin on Contracts § 8.11, 42 (Vol. 3 1996).

[86] See Archibald, supra note 75, at 351.

[87] See id. at 329.

[88] See e.g., Krishna Kumar, et al., Study 4: Rebuilding Post-War Rwanda, in The International Response to Conflict and Genocide: Lessons from the Rwanda Experience 27–32 (1996), available at http://www.grandslacs.net/doc/0744.pdf.

[89] See Bagaric & Morss, supra note 18, at 441 (“In many respects, necessity serves as a repository of assorted doctrines that can wheel international law into a place at the table. It is a pliable friend, serving both moral and strategic masters . . . .”).

[90] See Edward Yorio & Steve Thel, The Promissory Basis of Section 90, 101 Yale L. J. 111, 113–14 (1991).

[91] Goyet & Griekspoor, supra note 52, at 80.

[92] See id. at 90 (“Wise humanitarian agencies are now including provision for capacity building and preparedness in their emergency appeals.”); id. at 72 (“A needs-based approach aims to offset losses from the natural disaster and return to the situation as it was before the disaster. This is ethically difficult to justify, as the poorest get the least assistance under a needs-based approach and the prior situation was often the cause of the special vulnerability or even the trigger of the disaster in the first place.”).

[93] All States may utilize the court if they consent to its jurisdiction. See Statute of the International Court of Justice, 1983 U.N.Y.B 1334, art. 35, 36 (Oct. 24, 1945).

[94] See id.

[95] See id.

[96] See id.

[97] See also Snyder, supra note 79, at 750.

[98] See id. at 747.

[99] Nagendra Singh, The Role and Record of the International Court of Justice 376 (1989).

[100]See G.A. Res 46/182, supra note 30, ¶ 24; Shijūrō Ogata & Paul A. Volker, Financing an Effective United Nations 22 (1993) (“[H]umanitarian relief and economic development are still not considered core U.N activities. Thus, they continue to depend largely on voluntary contributions even though they have grown into the U.N’s largest programs.”); Jose E. Alvarez, Financial Responsibility, in The United Nations and International Law 409, 409                 (Christopher C. Joyner ed., 1997).

[101]See, e.g., Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J 6 (July 6).

[102] See Bagaric & Morss, supra note 18, at 427.

[103] See Landis, supra note 21, at 971.

[104] See Flint & Goyder, supra note 82, at 8.

[105] See Simon Tisdall & Maseeh Rahman, Pakistan Flood Toll Rises but International Aid Fails to Flow, The Guardian, Aug. 10, 2010, http://www.guardian.co.uk/world/2010/aug/10/pakistan-flood-international-aid.

[106] See Urioste, supra note 19, at 199–200.

[107] See Goyet & Griekspoor, supra note 52, at 87.

[108] See Flint & Goyder, supra note 82, at 24–25.

[109] See Desiree Bliss & Lynette Larsen, Surviving the Pakistan Earthquake: Perceptions of the Effected One Year Later 6 (Fritz Inst., 2006) available at http://www.fritzinstitute.org/PDFs/findings/PakistanEarthquake_perceptions.pdf (“Overall, survey respondents expressed the highest satisfaction levels with the aid provided by the Government of Pakistan, citing the government as the most outstanding aid provider ten months after the earthquake.”).

[110] See Flint & Goyder, supra note 82, at 22.

[111] See Goyet & Griekspoor, supra note 52, at 80.

[112] See World Econ. Forum Global Agenda Council on Humanitarian Assistance, supra note 12, at 5 (“We believe national capacity to deal with crises will grow and should be strengthened. . . . We expect there will be a significant shift, from what we think of as the Darfur model of high international engagement, to a hybrid model in which governments play a larger role (such as the Pakistan earthquake in 2005), and in cases where government capacity is adequate, to a government-led model, as with the Sichuan earthquake in China in 2008.”).

[113] See John Telford & John Cosgrave, Joint Evaluation of the International Response to the Indian Ocean Tsunami: Synthesis Report 120 (Tsunami Evaluation Coalition, July 2006), available at http://www.alnap.org/pool/files/synthrep%281%29.pdf.

[114] See Urioste, supra note 19, at 201.

[115] See Archibald, supra note 75, at 372.

[116] See Schermers & Blokker, supra note 45, at 641.

[117] See World Econ. Forum Global Agenda Council on Humanitarian Assistance, supra note 12, at 11.

[118] See Bagaric & Morss, supra note 18, at 436 (“The Doorstep Principle describes the empirical fact that proximate suffering matters more to individuals than anonymous, distant suffering.”).

[119] Apportioning aid demands by the ability to pay mirrors the current calculation of dues members of the UN are required to pay. Linking the sanctions provided in the UN Charter for non-paying members may provide another avenue of enforcement. See, e.g., John Stoessinger, Financing the United Nations System 82–90 (1964).

[120] This factor, while seemingly counterintuitive to fostering more heterogeneity in state relations may do much for combating the sense that foreign aid is a Western, Judeo-Christian undertaking. See World Econ. Forum Global Agenda Council on Humanitarian Assistance, supra note 12, at 13.

[121] See Emer de Vattel, The Law of Nations 137–38 (Joseph Chitty ed., 1883).


 [KCS1]Since my staffers looked at it, the link, http://www.ifrc.org/Docs/idrl/I259EN.pdf, has expired. This is the only link I could get to it. I’ll keep looking to see if I can find something shorter. Sorry.

 [KS2]This source is quoting another source as evidenced by the footnote; I didn’t how  to change it or BB it since the quoted source is in French so I just left it as is.

 [KCS3]This link has also expired—asking Katherine where I can access information to support this. I looked and failed to find anything.

 [KCS4]Do you want pincites here? Asking Katherine.

 [KS5]Need to ask Katherine  regarding where she found this data—I looked and couldn’t find it.

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