THE IMPLEMENTATION OF INTERNATIONAL DISASTER RESPONSE LAWS TOWARDS INDONESIAN SOVEREIGNTY

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This Undergraduate Thesis is submitted as one of the requirements to obtain the decree of Bachelor of Laws at Faculty of Law

Universitas Muhammadiyah Yogyakarta

Name : Mohammad Hazyar Arumbinang

Student Number : 20120610180

Faculty : Law

Major : Law Science (International Program for Law and Sharia)

Field of Study : International Law

FACULTY OF LAW

UNIVERSITAS MUHAMMADIYAH YOGYAKARTA 2016

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I hereby declare that the Undergraduate Thesis which is entitled “THE IMPLEMENTATION OF INTERNATIONAL DISASTER RESPONSE

LAWS TOWARDS INDONESIAN SOVEREIGNTY” its content is truly the work of my own and I did not do plagiarism or quotation in ways that are inconsistent with the prevailing ethnic in the scientific community. On this statement, I am ready to bear the risk/any sanctions imposed to me in accordance with applicable regulations, if in the future found a breach of scientific ethics, I am willing to accept the sanctions.

Written by

Name : Mohammad Hazyar Arumbinang

Student Number : 2012061080

Faculty : Law

Major : International Program for Law and Sharia University : Universitas Muhammadiyah Yogyakarta

Yogyakarta, May 25th, 2016

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My Lord, Allah SWT Prophet Muhammad SAW

My beloved parents Drs. Mohammad Zainal Hafid

Dra. Neng Indra Diansih

My lovely brothers Mohammad Bima Auron Haiz Mohammad Bayu Indranal Hair

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Gracious who has given me His blessing and an opportunity to accomplish my Undergraduate Thesis entitled The Implementation of International Disaster Response Laws Towards Indonesian Sovereignty at Universitas Muhammadiyah Yogyakarta. First of all, I am indebted particularly to two people who have given me encouragement, intellectual stimulation and guidance. They are my advisors: Dr. M. Nur Islami, S.H., M.Hum and Yordan Gunawan, S.H., Int. MBA. Their corrections, critical remarks and suggestions have allowed me to develop my ideas and prepare this thesis. I also owe special thanks to Dr. Sri Rejeki Murtiningsih, who did a great deal to correct and improve my English text.

I would like to express my deepest gratitude to several lecturers at Faculty of Law Universitas Muhammadiyah Yogyakarta who have shared their knowledge in the process of my study, they are Nasrullah, H., S.H., S.Ag., MCL as director of International Program for Law and Sharia (IPOLS), Iwan Satriawan, S.H., MCL., Ph. D who always motivate and guide me to be a good students and Dr. Trisno Rahadjo, S.H., M. Hum as the dean of Faculty of Law Universitas Muhammadiyah Yogyakarta. My deepest appreciations also go to all staff at the Faculty of Law for their assistances during my study at Universitas Muhammadiyah Yogyakarta.

I would like to express my sincere appreciation to all of my gorgeous friends in batch 2012 for the unforgettable moment during the period of study in

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This is special thanks goes to all my fellows’ best friends of Pinrang, Andi

Prama Wijaya SAR, Wahyu Ridha Rahma Agustiana, Andi Novita Annisa Aslam, Andi Adelia, Andi Nurfadillah, Andi Sakti Saputra, Satrio Angga Murti and all of my best friends that I cannot mention one by one, I Love you all.

Extraordinary thanks for my ‘family’ KPS PETITA FH UMY, Yovi

Cajapa Endyka, Zuhdan Fuad Reisnansyah, Andika Putra, Endah Dian Ariani, Dewi Kesuma Handayani, Julian Duwi Prasetia, Firmansyah Fadli, Hilmi Prabowo, Venny and Nurul. Also, to all of my gorgeous friends in LSDC (Law Students Debate Community) of Faculty of Law of UMY, Rofi Aulia Rahman, Bagus Priyo Prasojo, Munandar, may Allah bless you all here and hereafter.

Personally I would like to extend my thank to my prestigious best friends, Elida Rahajeng Puspitasari, Khoirunnisa Aganovilia, Apriana Daru Prabowo Wati, Suci Mardatillah, Hary Abdul Hakim and Fachrul Muhammad who always accompany me in every moment during finishing my studies in Yogyakarta. Om Dodi and Tante who be my parents in Yogyakarta.

I am deeply grateful to my father and mother, Drs. Mohammad Zainal Hafid and Dra. Neng Indra Diansih, for their understanding and sacrifice to support my study. Your prayer, guidance and affection are being my strength all the way through my life. I would not be where I am now without you. My sincere

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human beings. Amin. Above all, alhamdulillah, thank you Allah.

Yogyakarta, May 2016 Mohammad Hazyar Arumbinang

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ENDORSEMENT PAGE ... iii

DECLARATION PAGE ... iv

DEDICATION ... v

FOREWORD ... vi

TABLE OF CONTENTS ... ix

LIST OF TABLES ... xii

LIST OF FIGURES ... xiii

LIST OF STATUTES ... xiv

LIST OF ABBREVIATIONS ... xvi

CHAPTER ONE: INTRODUCTION A. Background of Research ... 1

B. Research Problem ... 4

C. Objective of Research ... 4

D. Benefits of Research ... 4

E. Systematic of Writing ... 6

CHAPTER TWO: LITERATURE REVIEW A. Natural and Man-Made Disaster ... 9

B. International Disaster Response Law ... 12

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C. Legal Material ... 19

1. Primary Legal Material ... 19

2. Secondary Legal Material ... 19

3. Tertiary Legal Material ... 21

D. Method of Collecting Data ... 22

E. Method of Data Analysis ... 22

CHAPTER FOUR: FINDING AND ANALYSIS A. Disaster Potential Threat of Indonesia ... 23

1. Volcanic Eruptions in Indonesia ... 25

2. Earthquake in Indonesia ... 27

3. Tsunami in Indonesia ... 30

4. Floods in Indonesia ... 33

B. The Legal Framework for Disaster Management ... 36

1. International Regional on Disaster Management ... 36

2. ASEAN Regulation on Disaster Management ... 43

C. The Implementation of International Disaster Response Law of Indonesia ... 48

1. The Historical Background of International Disaster Response Law of Indonesia ... 48

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Emergency Response ... 55 4. Case Studies of International Assistance during Disaster

Emergency Response in Indonesia ... 58

CHAPTER FIVE: CONCLUSION AND RECOMENDATION

A. Conclusion ... 72 B. Recommendation ... 72

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4. 2 Earthquake Risk Zone Map of Indonesia (MAIPARK 2010) ... 29

4. 3 Tsunami Disaster Risk Map of Indonesia ... 31

4. 4 Level of Disaster Potential Threat in Each Region in Indonesia ... 35

4. 5 Massive Destructions of Earthquakes Effect in Padang ... 60

4. 6 International Assistance Rescue Workers Conducting Meeting before Carrying Out Activities as Dusk Settles in Padang ... 61

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xiv Law No. 24 of 2007 on Disaster Management.

Government Regulation No. 21 of 2008 on Disaster Management.

Government Regulation No. 22 of 2008 on Disaster Aid Financing Management Government Regulation No. 23 of 2008 on Participation of International

Organizations and Foreign Non- Governmental Organization in Disaster Management.

Head of BNPB Regulation No. 22 of 2010 on Guideline on the Role of International Organization and Foreign Non-Governmental Organization During Emergency Response.

International

UN Convention on the Privileges and Immunities of the Specialized Agencies 1947.

UN Convention on the Privileges and Immunities of the United Nations 1946. UN Convention on the Safety of United Nations and Associated Personnel 1994. UN General Assembly Resolution 46/182, 1991.

UN General Assembly Resolution 57/150, 2002. UN Principles on Internal Displacement.

Agreement on Disaster Management and Emergency Response, 2005.

ASEAN Agreement on Disaster Management and Emergency Assistance 2005. ASEAN Declaration on Mutual Assistance on Natural Disasters, 1976.

Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disaster of 2000.

Convention Establishing the International Relief Union of 1927.

Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency 1986.

Convention on Early Notification of a Nuclear Accident of 1986. Convention on Temporary Admission of 1990.

Council’s of Europe Agreement on the Prevention of, Protection against, and

Organization of Relief in Major Natural and Technological Disaster of 1987.

Declaration on Action to Strengthen Emergency Relief, Rehabilitation, Reconstruction and Prevention on the Aftermath of Earthquake and Tsunami Disaster of 2004.

EUR-OPA Major Hazards Agreement 1987.

Framework Convention on Civil Defense Assistance of 2000.

Framework for Action for the International Decade for Natural Disaster Reduction of 1989.

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Inter-American Convention Disaster Assistance, 1991.

Inter-American Convention to Facilitate Disaster Assistance of 1991. The Guideline of International Disaster Response Law, 2007.

Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1997.

Optional Protocol to UN Convention on the Safety of United Nations and Associated Personnel, 2005.

The Agreement on the ASEAN Food Security Reserve of 1979.

The ASEAN Agreement for the Facilitation of Search of Ship in Disasters and Rescue of Survivors of Ship Accidents of 1975.

The ASEAN Agreement for the Facilitator of Search of Ships in Disasters and Rescue of Survivors of Aircraft Accidents of 1972.

The ASEAN Agreement on Transboundary Haze Pollution of 2002.

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, 2005.

The International Convention on the Simplification and Harmonization of Customs Procedures as amended in 1999.

The International Strategy for Disaster Reduction of 1999. The measures to Expedite International Relief of 1977.

The Principles and Rules of Red Cross and Red Crescent in Disaster Relief as amended in 1995.

The Sendai Framework for Disaster Risk Reduction 2015-2030 adopted at the Third UN World Conference in Sendai, 2015.

The Seville Agreement on the Organization of International Activities of the Components of the International Red Cross and Red Crescent Movement of 1997.

The statues of the International Red Cross and Red Crescent Movement as amended in 1995.

The supplementary measures to enhance the implementation of the Seville Agreement of 2005.

The Tampere Convention on the Provisions of Telecommunication Resources for Disaster Mitigation and Relief Operations of 1998.

The Yokohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness, and Mitigation and its Plan of Action, adopted in 1994.

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AADMER ASEAN Agreement on Disaster Management and

Emergency Response

ACDM ASEAN Committee on Disaster Management

AHA CENTRE ASEAN Coordinating Centre for Humanitarian Assistance on Disaster Management

ARPDM ASEAN Regional Programme on Disaster Management

ASEAN Association of Southeast Asian Nations

BIN Badan Intelijen Nasional

BNPB Badan Nasional Penanggulangan Bencana

BPBD Badan Penanggulangan Bencana Daerah

ECHO European Commission for Humanitarian Aid

HFA Hyogo Framework for Action

IASC Inter-Agency Standing Committee

IFRC International Federation of Red Cross and Red Crescent Societies

IDRL International Disaster Response Law

IHL International Humanitarian Law

INSARAG International Search and Rescue Advisory Group

MCDA Military and Civil Defense Assets

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SATKORLAK Satuan Koordinatior Pelaksana

TAC Treaty of Amity and Cooperation

TNI Tentara Nasional Indonesia

UN United Nations

UNISDR United Nations International Strategy for Disaster Risk Reduction

UNICEF United Nations International Chidren’s Emergency Fund

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Merapi volcanic eruption are the natural disaster with causing a severe destruction which is beyond the capacity of the host state. The international humanitarian assistance by international organizations and foreign non-governmental organizations needed due to help the host state. The International Federation of Red Cross and Red Crescent Societies initiated the International Disaster Response Law (IDRL) and in 2008, the UN General Assembly adopted three resolutions concerning it. In 2007, Indonesian Government enacted Law N0. 24 of 2007 on Disaster Management in responding it. This legal instrument as a legal basis for the international communities to help affected state during emergency disaster response. However, 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 due to that reason. In fact, the international organizations and foreign non-governmental organization might be violating the Indonesian sovereignty when giving humanitarian assistance during disaster emergency response situation. The objective of the research is to know does the implementation of International Disaster Response Laws upon Indonesia give the opportunity to an international organization and foreign non-governmental organization during disaster emergency response violated the sovereignty of Indonesia. By using normative legal research with statute approach and case approach, the research found that the implementation of International Disaster Response Laws of Indonesia during the disaster emergency response clearly gives an opportunity for the international organization and foreign non-governmental organization to violated the sovereignty of Indonesia.

Keywords: Implementation, International Disaster Response Law, Disaster Management, International Organization and Foreign Non-Governmental Organization, and Indonesian Sovereignty.

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CHAPTER ONE INTRODUCTION

A. Background of Research

During the past decade, natural and man-made disasters at various scales continue to increase by the year in Indonesia. Experiences haves shown that local governments and stakeholders with their capacity have proved their ability to handle small and medium scale emergency response, but for some circumstance the affected state sometimes cannot deal with this issue. For example, the large and mega scale natural disaster mitigation beyond the capacity of the local stakeholders are the 2004 tsunami in Aceh, the 2009 earthquake West Sumatera and the 2010 Mount Merapi volcanic eruption in Yogyakarta.1_{In these cases, the local governments and other stakeholders,}

including the local community, so far needed the support and assistance of international organizations and foreign non-government organizations during disaster response.

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

1_{Syamsul Maarif,}“Guideline On_{the Role of the International Organizations and Foreign} Non-Government Organizations During Emergency Response”, National Agency for Disaster Management (BNPB), (December, 2010). p. 2.

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beyond the capacity of the affected state, no state refuses to accept the international assistance during emergency response without any due reason.2

The international community has put this issue as one of the crucial issues. Therefore, some treaties have agreed to deal with this issue. Recently, the International Federation of Red Cross and Red Crescent Societies3 initiated the International Disaster Response Law (IDRL) Project with the aim of reducing the vulnerability and suffering of people affected by disasters.4

The IDRL has resulted in some importance conclusions and fundamental principles in order to guide the State or other international entities that recognized under international law in giving the humanitarian assistance (disaster relief) to the host state. Furthermore, there is one of the most importance principles, which has been agreed among states on this issue, that is the sovereignty of host state must be respected in giving humanitarian assistance during the disaster response. Regardless of the severity of a disaster

2_Ibid.

3_{The International Federation of Red Cross and Red Crescent Societies (IFRC) was founded}

in 1919 in Paris in the aftermath of World War I. The war had shown a need for close cooperation between Red Cross Societies, which, through their humanitarian activities on behalf of prisoners of war and combatants, had attracted millions of volunteers and built a large body of expertise. A devastated Europe could not afford to lose such a resource. It was Henry Davison, president of the American Red Cross War Committee, who proposed forming a federation of these National Societies. An international medical conference initiated by Davison resulted in the birth of the League of Red Cross Societies, which was renamed in October 1983 to the League of Red Cross and Red Crescent Societies, and then in November 1991 to become the International Federation of Red Cross and Red Crescent Societies. See more at http://www.ifrc.org/en/who-we-are/history/#sthash.ENK4lqpp.dpuf accessed on February 26, 2016 at 08:15 PM.

4 Vishnu Konoorayar, “Disasters: Global Response to the Challenges”, _{AALCO Quarterly Bulletin,}

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or the number of victims waiting to be rescued, state sovereignty cannot be superseded due to that reason.5

Indonesian Government tries to deal with those barriers through the enactment of Law No 24 of 2007 on Disaster Management and some other Laws6. In addition, during that established a new National Agency for Disaster Management (BNPB)7_{to manage these new areas. Through those}

Laws also, the government regulates the role and mechanism of international organization and non-governmental organization in giving the humanitarian assistance during disaster response situation. Yet, these laws still face a basic weakness, by giving the international organizations and non-governmental organizations a chance to violate the Indonesian sovereignty.

Evidence shows some international organization and non-governmental organization might be violating the Indonesian sovereignty when giving humanitarian assistance as disaster relief during disaster response situation.

5 Allen Yuhung Lai, et al., “A Proposed ASEAN Disaster Response, Training and Logistic Centre Enhacing Regional Governance in Disaster Management” Springer-Verlag, Volume XVI, (March, 2009). p. 4.

6_{Government Regulation No. 21 on Disaster Management, Government Regulation No. 22 of 2008 on}

Disaster Aid Financing and Management, Government Regulation No. 23 of 2008 on Participation of International Organizations and Foreign non-government Organizations in Disaster Management and Head of BNPB Regulation No. 22 of 2010 on Guideline on the Role of International Organization and Foreign Non-Governmental Organization During Emergency Response.

7_{In response to the current disaster management system, the Indonesian government was highly}

serious about building legalization, institutionalization, and budgeting. After the issuance of Act Number 24 of 2007 on Disaster Management, the government issued Presidential Decree Number 8 of 2008 on the National Agency for Disaster Management (Badan Nasional Penanggulangan Bencana-BNPB). BNPB consists of head, steering element of disaster management, and executing element of disaster management. BNPB has the coordination function of the implementation of disaster management activities in a planned, integrated, and comprehensive manner. BNPB is directly responsible to the president and the chairman is directly appointed by the president. See more at http://www.bnpb.go.id/profil accessed on March 29, 2016 at 08:20 AM.

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By looking at those facts, it is interesting to evaluate on the implementation of International Disaster Response Laws in Indonesia and to investigate whether it violates the Indonesian sovereignty during the disaster response situation.

B. Research Problem

Does the implementation of International Disaster Response Laws upon Indonesia give the opportunity to an international organization and foreign non-governmental organization during disaster emergency response violated the sovereignty of Indonesia?

C. Objective of Research

The objective of this research is to know whether the implementation of International Disaster Response Laws of Indonesia gives the opportunity to an international organization and foreign non-governmental organization to violate the sovereignty of Indonesia based on sovereignty principles.

D. Benefits of Research

1. Theoretical Advantages

The research would give theoretical understanding on how the International Disaster Response Laws Guide and other international instrument are implemented with regard to the Indonesian sovereignty based on sovereignty principles in responding the international assistance

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and foreign non-governmental organization during disaster response. Furthermore, it would also analyze to what extend state sovereignty, in this case the Indonesian sovereignty, still remains at the international level during the emergency response situation, since according to some scholar the sovereignty principle is one of the basics of International Laws.

2. Practical Advantages

The research would describe the gap between the state sovereignty and humanitarian assistance during emergency response and try to solve any existing barriers in giving international assistance during emergency response which is included as a humanitarian mission. This research would also give a better understanding on how the International Disaster Response Law Guideline and some other international legal framework on disaster management particularly international assistance at disaster response implemented in Indonesia. In addition, it would also answer the question on how to preventing the violation that might be conducted by the international organization and foreign non-governmental organization in giving humanitarian assistance during emergency response situation.

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E. Systematic of Writing

The research consists of five chapters, namely: Chapter One Introduction, Chapter Two Literature Review, Chapter Three Research Methods, Chapter Four Finding and Analysis, Chapter V Conclusion and Recommendation.

The research aims to analyze the implementation of International Disaster Response Laws of Indonesia during emergency response. The research also analyze that by accepting the international assistance it would give a chance the foreign non-governmental organizations and international organizations reduces or even violate the sovereignty of Indonesia under the circumstance of giving the humanitarian assistance during disaster emergency response situation.

In Chapter One, the researcher elaborates the main reasons why International Disaster Response Laws of Indonesia might give a chance to an international organizations and foreign non-governmental organizations to violate the sovereignty of Indonesia while giving the humanitarian assistance during disaster emergency response situation.

Furthermore, this chapter introduces several facts on the severe impacts of natural or man-made disasters towards the host state and the incapability of host state in responding its impact. Therefore, the international community trough International Federation of Red Cross and Red Crescent Societies initiated the International Disaster Response Law (IDRL) Project to reduce

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the vulnerability and suffering of people affected by the disasters. They do this by giving fundamental principles on how the other State, international organizations and foreign non-governmental organizations may give humanitarian assistance in form of disaster relief to the host state.

One of the most importance principles in the International Disaster Response Laws already agreed by sovereign state is respected the sovereignty of the host State. However, when the circumstances of the affected area of natural or man-made disaster that needs a proper and fast emergency response, sometimes the sovereignty of host state has a potential to be violated by other states or other international entities recognized under international laws. In this introduction, the researcher also delivers the research problem which will be discussed in the next chapter. The research objective, advantages of research, and systematic of the writing of research also explained in this chapter.

Chapter two will explain the general theory and the legal aspects related to the international law on the International Disaster Response Laws and sovereignty principles. It also provides disaster potential threats to Indonesia, the meaning of International Disaster Response Laws, and sovereignty principles especially the sovereignty of Indonesia.

In Chapter three, the researcher will discuss the research methods used on the research. This research method consists of the type of research, type of approaches, legal materials, method of collecting data and data analysis. The

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type of this research is normative legal research. The research use statute approach and case approach. Also, this research will use research material taken from some literature consist of primary legal material, secondary legal material, and tertiary legal material. Then, the methods of collecting data in this research will be conducted through library research, and will be analyzed systematically through qualitative and descriptive methods.

In Chapter four, the researcher will analyze whether the implementation of International Disaster Response Laws of Indonesia does not reduce the sovereignty of Indonesia or even give a chance to the international organizations and foreign non-governmental organizations to violate the sovereignty of Indonesia during emergency response. To answer that question, this chapter would analyze the international assistance in giving disaster relief during disaster response on two disaster events: the earthquake 2009 in West Sumatra and the Mount Merapi volcano eruption 2010 in Yogyakarta.

Finally, Chapter five covers the conclusion and suggestions on this research. In this chapter, the researcher will conclude what has been discovered in the previous chapter about the implementation of International Disaster Response Laws towards the sovereignty of Indonesia and also will give the suggestions on how the Indonesian government should regulate the international humanitarian assistance from international organizations and non-government organizations during emergency response.

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CHAPTER TWO LITERATURE REVIEW

A. Natural and Man-Made Disaster

Natural and man-made hazard, as well as disaster, has been defined by many scholars based on different perspectives. Since the issue of climate change and natural and man-made hazard and disaster has been one of the common interests for international community, following the United Nations International Decade for Natural Disaster Reduction (1990-1999), the term of natural and man-made hazard and disaster by UNISDR is defined as a potentially damaging physical event, phenomenon or human activity that may cause the loss of life or injury, property damage, social and economic disruption or environmental degradation.8

Hazards can include latent conditions that may represent future threats and can have different origins: natural (geological, hydro-meteorological and biological) or induced by human processes (environmental degradation and technological hazards). Hazards can be single, sequential or combined in their

UNISDR was established in 1999 as a dedicated secretariat to facilitate the implementation of the International Strategy for Disaster Reduction (ISDR).It is mandated by the United Nations General Assembly resolution (56/195), to serve as the focal point in the United Nations system for the coordination of disaster reduction and to ensure synergies among the disaster reduction activities of the United Nations system and regional organizations and activities in socio‐economic and humanitarian fields. It is an organizational unit of the UN Secretariat and is led by the UN Special Representative of the Secretary-General for Disaster Risk Reduction (SRSG). See more at http://www.unisdr.org/who-we-are accessed on February 21, on February 22, 2016 at 02:34 PM.

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origin and effects. Each hazard is characterized by its location, intensity, frequency, and probability.

Meanwhile, a disaster is a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses, which exceed the ability of the affected community or society to cope using its own resources. A disaster is a function of the risk process. It results from the combination of hazards, conditions of vulnerability, and insufficient capacity or measures to reduce the potential negative consequences of risk.9 A disaster is also defines as a natural or man-made hazard resulting in an event of substantial extent causing significant physical damage or destruction, loss of life, or drastic change to the natural environment.10

Natural hazards are naturally occurring physical phenomena caused either by rapid or slow onset events which can be geophysical (earthquakes, landslides, tsunamis and volcanic activity), hydrological (avalanches and floods), climatological (extreme temperatures, drought and wildfires), meteorological (cyclones and storms/wave surges) or biological (disease epidemics and insect/animal plagues).

International Strategy for Disaster Reduction, Living with Risk: A Global Review of Disaster Reduction Initiatives, Geneva: United Nations publication, 2004. p. 16-17.

10_{Alberto Alemanno, “Governing Disaster}

-The Challenges of Emergency Risk Regulation” Edward Elgar, (2011). p. 4.

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Technological or man-made hazards (complex emergencies/conflicts, famine, displaced populations, industrial accidents and transport accidents) are events that are caused by humans and occur in or close to human settlements. This can include environmental degradation, pollution, and accidents. There is a range of challenges, such as climate change, unplanned-urbanization, under-development/poverty as well as the threat of pandemics, that will shape humanitarian assistance in the future. These aggravating factors will result in increased frequency, complexity and severity of disasters.11

In short, the definition of a disaster states that the disaster is caused by natural, non-natural, and human factors. Therefore, the Indonesian Government through Law Number 24 of 2007 defines natural disasters, non-natural and social disasters as follows:12

1. A disaster is an event or a series of events that threaten and disrupt the lives and livelihoods caused by natural factors and/or non-natural factors and human factors that lead to the emergence of human casualties, environmental damage, loss of property, and psychological impacts;

Anonymous, “Types of disasters: Definition of hazard”, International Federation of Red Cross and Red Crescent Society, Accessed from http://www.ifrc.org/en/what-we-do/disaster-management/about-disasters/definition-of-hazard/, on February 25, 2016 at 04:01 PM.

Anonymous, “Definition and Type of Disaster”, Badan Nasional Penanggulangan Bencana, Accessed from http://www.bnpb.go.id/pengetahuan-bencana/definisi-dan-jenis-bencana, on February 25, 2016 at 04:05 PM.

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2. Natural disaster is a disaster caused by an event or a series of events caused by nature, which include earthquakes, tsunamis, volcanic eruptions, floods, droughts, hurricanes, and landslides;

3. Non-natural disaster is a disaster caused by a non-natural event or a series of non-natural events, which include failure of technology, failure of modernization, epidemics, and outbreaks of disease; and 4. Social disaster is a disaster caused by an event or a series of events

caused by humans, which include inter-community, inter-group or people social conflicts, and terrors.

B. International Disaster Response Laws

The International Federation of Red Cross and Red Crescent Societies initiated the International Disaster Response Laws (IDRL) in response to resolution 5 of the Council of Delegates of the International Red Cross and Red Crescent Movement in November 2001. This project aims to reduce the vulnerability and suffering of people affected by disasters. Under this project, the conventions, treaties, and other arrangements at the international, regional and national level are studied so that an effective mechanism can be formulated for the effective management of disasters.13

International Federation of Red Cross and Red Crescent Societies, International Disaster Response Laws (IDRL) Project Report 2002-2003, Geneva, 2003. p. 12.

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It is hoped that this will be achieved through the promotion and development of international disaster response law mechanisms to better facilitate the provision of expedient and effective international humanitarian assistance. The project involves several stages, including the collection of relevant legal and non-legal materials for publication, a legal study to examine the current state of international laws in this regard and several field studies to examine the effectiveness of existing law in an operational context, which in particular requested the International Federation to:

a. advocate the development and, where applicable, the improvement and faithful application of International Disaster Response Laws through in particular, but not limited to, the compilation and publication of existing international laws and regulations, and the evaluation of their actual effectiveness in humanitarian operations; and

b. to engage or, where applicable, continue the dialogue with governments and promote appropriate disaster response laws and regulations, allowing relief actors to meet the needs of the disaster victims in the most effective way.

Isabelle Reinecke stated that IDRL includes the body of rules and principles for international humanitarian assistance in the wake of peacetime disasters of natural, technological or industrial origin. Unlike International

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Humanitarian Law (IHL),14 IDRL applies to (usually) unintended disasters in a co-operative peacetime context when states or intergovernmental humanitarian or other organizations offer, request, provide, or accept cross-border disaster assistance.15

IDRL itself was described as the body of laws and other regulations relating to disaster response, International law–includes treaty law, agreements between states and international organizations, including the

International Federation and “soft law” emanating from declaratory

instruments and relevant resolutions adopted by intergovernmental meetings. Disaster response–includes preparedness, relief and rehabilitation activities in the event of natural, technological and other disasters which are not classified as armed conflict.16

This could be summarized as the laws, rules and principles applicable to the access, facilitation, coordination, quality and accountability of international disaster response activities in times of non-conflict related disasters, which includes preparedness for imminent disaster and the conduct of rescue and humanitarian assistance activities.

International Humanitarian Law is a set of rules that seek to limit the effects of armed conflict. It also known as the laws of war and the law of armed conflict, is the legal framework applicable to situations of armed conflict and occupation. It protects people who are not or are no longer participating in hostilities and restricts the means and methods of welfare. See more at http://www.ijrcenter.org/international-humanitarian-law/ accessed on April 19, 2016 at 01:46 PM.

Isabelle Reinecke, “International Disaster Response Law and the co-ordination of international Organizations”, The ANU Undergrad Research Journal, II (2010). p. 145-146.

International Federation of Red Cross and Red Crescent Societies, IDRL Fact Sheet Number 3: Current Issues for the IDRL Project. Geneva, 2002. p. 39.

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IDRL could also encompass any kind of crisis, emergency or disaster, ranging from nuclear disasters and chemical spills to economic collapse and poverty to floods, droughts, and earthquakes, to forest fires and aviation accidents. In addition, IDRL could apply to all phases of disasters including prevention, preparedness, mitigation, relief, recovery, rehabilitation and development.

C. Sovereignty Principles

The term sovereignty has been used in four different ways of international legal sovereignty, Westphalian sovereignty, domestic sovereignty, and interdependence sovereignty. International legal sovereignty refers to the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence. Meanwhile, Westphalian sovereignty refers to a political organization based on the exclusion of external actors from authority structures within a given territory. Domestic sovereignty refers to the formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own polity. Finally, interdependence sovereignty refers to the ability of public authorities to regulate the flow of

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information, ideas, goods, people, pollutants, or capital across the borders of their state.17

The sovereignty of states represents the basic constitutional doctrine of the law of nations, which governs a community consisting primarily of states having, in principle, a uniform legal personality.18 If the international law exists, the dynamics of state sovereignty can be expressed in terms of the law. If states (and only states) are conceived of as sovereign, then in this respect, at least, they are equal, and their sovereignty is in a major aspect a relation to others states (and to organizations of states) define by law.19

The corollaries of the sovereignty and equality of states are: (a) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (b) a duty of non-intervention in the area of exclusive jurisdiction of other states; and (c) the ultimate dependence upon consent of obligations arising whether from customary law or from treaties.20

Under current international law, sovereignty is defined as: sovereignty in the sense of contemporary public international law denotes the basic international legal status of a state that is not subject, within its territorial

Stephen D. Krasner, 1999, Sovereignty: Organized Hypocrisy, New Jersey: Princeton University Press. p. 3-4.

Anonymous, Reparation for Injuries Suffered in the Service of the United Nations, The Hague: ICJ Report, 1949. p. 174, 177-178.

James Crawford, 2012, Brownlie’s Principles of Public International Law, United Kingdom: Oxford University Press. p. 447.

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jurisdiction, to the governmental, executive, legislative, or judicial jurisdiction of a foreign state or to foreign law other than public international law.21

Jean Bodin defines sovereignty as state attribute and as one of the importance element of state. Sovereignty is absolute and immortal authority from state which is unlimited and cannot be divided. Furthermore, Jean Bodin stated that no other higher authority that can limit the authority of the state. According to Bodin, what is called by sovereignty is one and only authority which are; original, which means it is not derived from other authorities; the highest, which refers to that there is no other higher authority that can limit its authority; immutable and eternal, which means that it; cannot be divided since there is only one supreme authority.22

Sovereignty is also defined as the ultimate authority, held by a person or institution, against which there is no appeal. In other words, sovereignty is the ultimate power, authority and/or jurisdiction over a people and a territory. No other person, group, tribe or state can tell a sovereign entity what to do with its land and/or people. A sovereign entity can decide and administer its own laws, can determine the use of its land and can do pretty much as it pleases, free of external influence (within the limitations of international law).23

21_{H Steinberger, „Sovereignty’,}

Max Planck Institute for Comparative Public Law and International Law: Encyclopedia for Public International Law, Vol. X, (1987). p. 414.

F.X Adji Samekto, 2009, Negara Dalam Dimensi Hukum Internasional, Bandung: Citra Aditya. p. 49.

23_{Yordan Gunawan, “Penegakan Hukum Terhadap Pembajakan d}

i Laut Melalui Yurisdiksi Mahkamah

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CHAPTER THREE RESEARCH METHODS

A. Type of Research

The researcher uses normative legal research to answer the problem statement, which means that the research will show how the law regulates such condition and how the application of law itself.24 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.25

B. Type of Approach

The author uses the statute approach and case approach in the research to give comprehensive understanding on the issue. In a normative legal research, statute approach is use to research the specific statutes26 as the main issue that would be analyzed in the normative legal research.27 West Sumatra

Ronny Soemitro Hanitijo, 1990, Metodologi Penelitian Hukum dan Jurimetri, Jakarta: Ghalia Indonesia. p. 10.

Peter Mahmud Marzuki, 2013, Penelitian Hukum Edisi Revisi, Jakarta: Kharisma Putra Utama. p. 47.

International Disaster Response Laws of Indonesia, see p. 3.

Johnny Ibrahim, 2006 Teori dan Metodologi Penelitian Hukum Normatif, Second Edition, Bayu Media: Malang. p. 302-303.

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earthquake in 2009 and Yogyakarta Merapi volcanic eruption in 2010 are the two cases that will be used by the researcher. The use of the case approach in normative legal research aims to understand the implementation of legal norms which conducted in legal practice.28

C. Legal Material

Review of the literature would be conducted in order to collect the secondary data which needed in the research. The secondary data to be searched are:

1. Primary Legal Material

The primary legal materials such as legal documents, legislations, and treaties which have relevancy to the research should be obtained, they are:

a. United Nation Charter 1945,

b. Treaty of Amity and Cooperation 1976,

c. The Guideline of International Disaster Response Laws, and d. Sovereignty Principles.

2. Secondary Legal Materials

Secondary legal materials, consisting of several documents related to the analysis of is the International Disaster Response Law, have given a

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chance upon other state or other entities recognized under International Law to violate the sovereignty of Indonesia, such as:

a. Books;

1) Guttry, de, Andrea et al, 2012, International Disaster Response Law, The Hague: Asser Press;

2) E, Harper, 2009, International Law and Standards Applicable in Natural Disaster Situations. Rome: International Development Law Organization IDLO, and etc.

b. Scientific journals;

1) Gunawan, Yordan, “Penegakan Hukum Terhadap Pembajakan di Laut Melalui Yurisdiksi Mahkamah Pidana Internasional”, Media Hukum, Volume 19, June, 2012, Yogyakarta: Fakultas Hukum Universitas Muhammadiyah Yogyakarta;

2) Lai, Yuhung, Allen et al, “A Proposed ASEAN Disaster Response, Training and Logistic Centre Enhancing Regional Governance in

Disaster Management” Springer-Verlag, Volume XVI, March, 2009, and etc.

c. Papers;

1) Antoni, Veri, “Possibility of Implementation Natural Disaster

Insurance in Indonesia and ASEAN”, (Presented on 2nd

CILS Conference 2011: International Conference on ASEAN’s Role in

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Sustainable Development in the Faculty of Law Universitas Gadjah Mada 21th and 22th November 2011);

2) Supancana, Ida, B.R., 2007, “International Disaster Response Law, Rules and Principles (IDRL) Programme of The International Federation of Red Cross and Red Crescent Societies (IFRC)” (Presented at the Conference on Space Law and Space Applications for Disaster Management in the Asia Pacific Region, Chiangmai-Bangkok, 22 November 2007), and etc.

d. Reports:

1) International Strategy for Disaster Reduction, Living with Risk: A Global Review of Disaster Reduction Initiatives, Geneva: United Nations publication, 2004;

2) AHA CENTRE, AADMER Work Programme Phase 1:

Accomplishment Report, Jakarta: ASEAN Secretariat, 2010, and etc.

3. Tertiary Legal Materials

The tertiary legal material is a material, which supports the research. It covers the legal materials that provide instructions or explanations of primary and secondary legal materials from the outside the field of law, e.g., the field of politics, sociology, language as supporting material or complementary such as:

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a. Law dictionary, like Black’s Law Dictionary written by Henry Campbell; and

b. English dictionary, like Kamus Inggris Indonesia written by John M. Echols and Hassan Sadily.

D. Method of Collecting Data

The method of collecting data in this research will be through library research and will try to make a conclusion from related documents, such as convention, books, scientific journals, and others related to the main problem as the object of this research.

E. Method of Data Analysis

The data will be analyzed systematically through juridical qualitative. Systematically means the research will be analyzed based on international law, especially humanitarian intervention, focusing on the implementation of International Disaster Response Laws of Indonesia. Juridical qualitative means it would be connected with the principle of law, convention, and other related regulations.29

Mukti Fajar ND, Yulianto Achmad, 2009, Dualisme Penelitian Hukum, Yogyakarta: Pensil Komunika. p. 123.

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CHAPTER FOUR FINDING AND ANALYSIS

A. Disasters Potential Threat of Indonesia

Located in the area of Pacific Ring of Fire30 and lies on the juncture of four active tectonic plates, the Asian plate, Australian plate, Indian Ocean plate, and Pacific Ocean plate, under that circumstances, Indonesia is one of the areas in the world that has a lot of active volcanoes and seismic activities (See Figure 4.1).31 By the geographic condition, Indonesia has to cope with the constant risk of volcanic eruptions, earthquakes, floods and tsunamis due to a lot of tectonic activities.

On several occasions during the last 20 years, Indonesia has successfully drawn the global attention due to devastating natural disasters, which resulted in the deaths thousands of humans and animals. All of the natural disasters which happened in last 20 years, caused destructive effects on the land area, including infrastructures that will lead to the economic loss on the affected areas.

The Ring of Fire is a string of volcanoes and sites of seismic activity, or earthquakes, around the edges of the Pacific Ocean. Roughly 90% of all earthquakes occur along the Ring of Fire, and the ring is dotted with 75% of all active volcanoes on Earth. The Ring of Fire isn‟t quite a circular ring. It is shaped more like a 40,000-kilometer (25,000-mile) horseshoe. A string of 452 volcanoes stretches from the southern tip of South America, up along the coast of North America, across the Bering Strait, down through Japan, and into New Zealand. Several active and dormant volcanoes in Antarctica,

however, “close” the ring. See more at http://education.nationalgeographic.org/encyclopedia/ring-fire/ accessed on February 18, 2016 at 10:14 PM.

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The effects of an extreme weather in Indonesia added the list of serious issues that must be faced by the Indonesian government along with civil societies. The extremely dry or wet seasons caused simultaneous effects towards society. For example, it might ruin the crop harvests that would trigger the inflation and severe financial pressure on the Indonesian population, especially those who live in poverty.

Recently, Indonesia has made global headlines due to natural and man-made disasters, such as forest fires brought on by slash-and-burn culture and economical reason. Another example is, lack of waste management by using rivers to dispose wastes which lead to flooding. These disasters may result in more serious environmental and health consequences to both Indonesia and its neighboring countries.

One important note is that Indonesia‟s notorious weak infrastructure caused by mismanagement, uncontrolled population growth and improper development in certain region in Indonesia. The other causes are lack of disaster risk assessment, lack of skills, 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 be.32

Anonymous, “Natural Disaster in Indonesia”, Indonesia Investments, accessed from http://www.indonesia-investments.com/business/risks/natural-disasters/item243, on 17 February 2016 at 05:46 PM.

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Figure 4. 1

Tectonic Plates and Faults in Asia-Pacific

Source: http://reliefweb.int/map/world/asia-pacific-tectonic-plates-and-faults-december-2014.

1. Volcanic Eruptions in Indonesia

Geographically, Indonesia is one of the areas that have a lot of active volcanoes. In the southern and eastern parts of Indonesia, there are volcanic arcs that extend from the island of Sumatra, Java, Nusa Tenggara, Sulawesi which sides are old volcanic and low plains that 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 when the time of natural disaster

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could occur which are caused by the volcanos since a number of Indonesian volcanoes show continuous activity till nowadays.33

Historically, the volcano eruption in Indonesia was engendered massive breakdown of land area or even it can lead to transformation the surface of the island, just like the Toba super eruption. Researchers say that Toba was responsible for two major global environment altering events in the last 2 million years, erupting on four different occasions in the Quaternary Period: 840,000 years ago, 700,000 years ago and finally about 75,000 years ago. The Toba catastrophe hypothesis holds that this event caused a global volcanic winter of 6-10 years and possibly a 1,000 year-long cooling episode.34 The number of deaths caused by the earthquakes is less than that of tsunamis but, they occur frequently.

Understanding that as the country that contains the most active volcanoes of all countries in the world, it makes almost all of Indonesian areas are aware of possible volcanoes eruption, which can cause a massive destruction of society. Some notable volcano eruptions in Indonesia‟s history are listed below:

Ibid.

34 _{Johnthomas Didymus, “Indonesia‟s Lake Toba Supervolcano Threatens Global Volcanic Winter:}

Eruption Caused Mass Extinction 75, 000 Years Ago”, Inquisitr News Worth Sharing, taken from http://www.inquisitr.com/2160555/indonesias-lake-toba-supervolcano-threatens-global-volcanic-winter-eruption-caused-mass-extinction-75-000-years-ago/, accessed on February 17, 2016 at 08:21 PM.

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Table 4. 1

Notable Volcano Eruptions in Indonesia

Location Date Magnitude Casualties

Sumatra 25 October 2010 7.7 435

Sumatra 30 September 2009 7.6 1,117

Java 17 July 2006 7.7 730

Java 26 May 2006 6.3 5,780

Sumatra 28 March 2005 8.6 1,313

Sumatra 26 December 2004 9.2 283,106

Source: http://www.indonesia-investments.com/business/risks/natural-disasters/item243.

2. Earthquakes in Indonesia

Based on the data shown, nearly all regions in Indonesia have a volcano that till nowadays those volcanoes are to indicate the increasing of seismic activity. Following the data, in some territories that have direct links with the volcano activities, a potential natural disaster, known as an earthquake, is highly possible.

The earthquake is probably the biggest threat regarding its massive destruction effects. Regardless the area that do not have any seismic activity by volcanoes, the earthquake still can happen. Since the Eurasian Plate, Pacific Plate, Indian Ocean Plate and Indo-Australia Plate are four active plates that cause such a lot of other seismic activity in nearly all

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islands of Indonesia. The data shows that 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.35 That indicates that Indonesia is one of most dangerous state in terms of the level of earthquakes. Therefore, the Indonesian government should establish a well-prepared disaster management due to that reason.

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.36 More than 1.000 people were killed in 7 of those earthquakes. Additionally, 10.000 people were killed by the earthquakes that occurred in 1815 and 1917 in Bali. 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.37

35 _{Badan Nasional Penanggulangan Bencana, “Disaster Potential Threat”, BNPB, taken f}

rom http://www.bnpb.go.id/pengetahuan-bencana/potensi-ancaman-bencana#english, accessed on November 1, 2015 at 12:07 PM.

AHA Center, Japan International Cooperation Agency (JICA), Country Report Indonesia: Natural Disaster Risk Assessment and Area Business Continuity Plan Formulation for Industrial Agglomerated Areas in the ASEAN Region, Jakarta, 2015. p. 11.

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Figure 4. 2

Earthquake Risk Zone Map of Indonesia (MAIPARK 2010)

Source:http://www.maipark.com/download/File/other/MAIPARK%20EQ%20Zone%20 2010.pdf.

The map is the Earthquake Risk Map developed by the insurance company, Pt. Asuransi MAIPARK Indonesia. The map illustrates the Sunda Trench sides of Sumatra and Java and the Pacific Ocean sides of New Guinea and Sulawesi have a high earthquake risk. On the other hand, the Java Sea and the Banda Seasides have a low earthquake risk. The earthquake risk of Kalimantan is especially lower than other areas.38

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Yearly, two or three earthquake with a magnitude of seven or higher occur in Indonesia and cause casualties and damage the infrastructure or environment. Below is a selected list of recent earthquakes that lead severe damage: 39

Table 4. 2

Recent Earthquakes that Lead Severe Damage in Indonesia

Location Date Magnitude Casualties

Sumatra 25 October 2010 7.7 435

Sumatra 30 September 2009 7.6 1,117

Java 17 July 2006 7.7 730

Java 26 May 2006 6.3 5,780

Sumatra 28 March 2005 8.6 1,313

Sumatra 26 December 2004 9.2 283,106

Source:http://www.indonesia-investments.com/business/risks/natural disasters/item243.

3. Tsunami in Indonesia

In fact, Indonesia is an archipelago country and around half of its territory covered by the sea, which for some circumstances it would be as one of the abundant natural resources. On the other hand, considering the geographic condition of Indonesia and the daily seismic activity, a submarine earthquake or volcanic eruption in the ocean can cause a

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tsunami water wave which has a devastating effect on the people and objects near the sea.

Figure 4.3

Tsunami Disaster Risk Map of Indonesia

Source: http://geospasial.bnpb.go.id/2011/02/23/peta-zonasi-ancaman-bahaya-tsunami-di-indonesia/.

Figure 4. 3 is the Tsunami Disaster Risk Map of Indonesia developed by the National Agency for Disaster Management (BNPB). It illustrates that the coasts of Sumatra and Java along the Sunda Trench, the coasts of Lesser Sunda, Sulawesi, and the Moluccas, and the east coast of Kalimantan have tsunami risk.40

AHA Center, Japan International Cooperation Agency (JICA), Country Report Indonesia: Natural Disaster Risk Assessment and Area Business Continuity Plan Formulation for Industrial Agglomerated Areas in the ASEAN Region, Op.Cit. p. 18.

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Tsunamis caused the largest impact in terms of the number of deaths. The experience has shown that on the Southeast Asia tsunami is the extremely deadly natural disaster, 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.41 In addition, a further 7 tsunamis have caused more than 1000 deaths since the 17th century.42

Although a massive tsunami such as the 2004 tsunami is rare, the Sumatra region is often startled by offshore earthquakes that can potentially trigger a tsunami. With the 2004 tsunami still fresh in mind, the level of fear is high. Often Indonesians who live in villages or cities close to the coast, flee to the hills (located more inland) after an earthquake has taken place. On average, once every five years a large tsunami happens in Indonesia, usually on the islands of Sumatra and Java. Generally, damage to the infrastructure exceeds the loss of lives. There are warning systems installed in many coastal areas but there have been reports that not all are functioning properly.43

Anonymous, “Humanitarian Health Action: South Asia earthquake and Tsunami”, World Health Organization, accessed from http://www.who.int/hac/crises/international/asia_tsunami/en/, February 18, 2016 at 01:42 PM.

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4. Floods in Indonesia

Indonesia‟s rainy season which runs from December to March can bring plenty of rainfall. In combination with deforestation and waterways clogged with debris, it can cause rivers to overflow and result in floods. Heavy rainfalls in the mountain area cause floods in the plains downstream. Many floods have occurred due to the east-west monsoons in the rainy season. Heavy rainfalls in the mountainous region cause floods in the plain and extensive damage swamps and coastal low-lying areas. Urban areas become inundated because of an insufficient drainage system and poor maintenance work. Land subsidence is common in coastal town due to groundwater use by industries, etc., and due to an increasing in pounding.44

Floods and landslides occur in most parts of Indonesia and can cause hundreds of casualties, destroy houses and other infrastructure, and ruin local businesses. Even in a mega city as Jakarta, floods occur regularly due to weak water management. In January 2013, a large part of Jakarta was flooded, affecting more than 100.000 households and resulting in the loss of lives of more than 20 people.45

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There is a high frequency of flood in Indonesia. Java Island has the highest frequency, followed by Sumatra Island and Sulawesi Island, but Kalimantan Island has a low frequency. Based on data, there are several hot spots of flood disaster that include:46

a. Java Island: Banten Province, Jakarta Special Capital Region, West Java Province, Central Java Province, East Java Province; and

b. Sumatra Island: Aceh Province and North Sumatra Province.

That condition is potential and prone to disasters, such as volcanic eruptions, earthquakes, tsunamis, floods, and landslides. According to United Nations International Strategy for Disaster Reduction, Indonesia is the most a disaster-prone country in the world. From several natural disasters, UNISDR ranks six natural disasters based on a number of victims, that are tsunamis, landslide, floods, earthquakes, hurricane, and drought. Indonesia is the first rank in tsunami and landslide, the third rank for earthquakes, and the sixth rank for flood, only for hurricane and

drought, Indonesia‟s rank is out of the sixth rank.47 Therefore, Badan Nasional Penanggulangan Bencana as the main actors which will deal

47_{Veri Antoni, “Possibility of Implementation Natural Disaster Insurance in Indonesia and ASEAN”,}

(Unpublished paper, Paper unpublished, Presented on 2nd CILS Conference 2011: International

Conference on ASEAN‟s Role in Sustainable Development in the Faculty of Law Universitas Gadjah

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with the issue of response natural and man-made disaster issued the data concerning the disaster potential threat of Indonesia:

Figure 4. 4

Level of Disaster Potential Threat in Each Region in Indonesia

Source: http://www.indonesia-investments.com/business/risks/natural-disasters/item243. By looking serious potential threat of natural and man-made disaster which cannot measure when it happened, Indonesian Government has been issued Law No 24 of 2007 on Disaster Management to establish a well-prepared disaster management. Likewise, accepting the humanitarian assistance in responding the natural disaster that happened in Indonesia which resulted in the wide-scale damage and the loss of human by means accepting the humanitarian assistance in form of disaster relief during the disaster response from international organization or non-governmental organization, the Government Regulation No. 21 of 2008 on Disaster

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Management and Government Regulation No. 23 of 2008 on International and NGO Assistants in Disaster Management are the instrument which give the fundamental principles on the issue of how the mechanism of International Organizations and Foreign Non-Governmental Organizations giving disaster relief during disaster response in Indonesia.

B. The Legal Framework for Disaster Management 1. International Regulation on Disaster Management

The attention of 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,48 as well as part of commitment towards partnership and local as well as global cooperation on humanitarian assistance, especially if the disaster involves the loss of many lives. 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.49

Harper E, 2009, International Law and Standards Applicable in Natural Disaster Situations. Rome: International Development Law Organization IDLO. p. 15.

There are various archives containing disaster-related agreements: see more at http://www.ifrc.org/en/what-we-do/idrl/research-tools-and-publications/disaster-law-publications/; the UN Treaty Collection http://treaties.un.org/; the IDRL legal database, a collection of international and national legal documents such as treaties, resolutions, laws and regulations relevant to international disaster response operations, which was promoted and is managed by the International Federation of

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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:50

a. International Conventions

1) Convention Establishing the International Relief Union of 1927; 2) Convention on Assistance in the Case of Nuclear Accident or

Radiological Emergency 1986;

3) Convention on Early Notification of a Nuclear Accident of 1986;

4) Council‟s of Europe Agreement on the Prevention of, Protection

against, and Organization of Relief in Major Natural and Technological Disaster of 1987;

5) Convention on Temporary Admission of 1990 (in particular annex B.9 concerning goods imported for humanitarian purposes);

6) Inter-American Convention to Facilitate Disaster Assistance of 1991;

7) Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997;

Red Cross and Red Crescent Societies, the OCHA Disaster Response Preparedness Toolkit available at http://ocha.unog.ch/drptoolkit/PNormativeandLegalInstruments.html, etc.

Jiri Toman, “International Disaster Response Law: Treaties, Principles, Regulations and Remaining

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8) The Tampere Convention on the Provisions of Telecommunication Resources for Disaster Mitigation and Relief Operations of 1998;

9) The International Convention on the Simplification and Harmonization of Customs Procedures as amended in 1999;

10) Framework Convention on Civil Defense Assistance of 2000; and 11) The “Seville Agreement” on the Organization of International

Activities of the Components of the International Red Cross and Red Crescent Movement of 1997.51

And also (UN Conventions)

1) UN Convention on the Privileges and Immunities of the United Nations 1946;

2) UN Convention on the Privileges and Immunities of the Specialized Agencies 1947;

3) Framework for Action for the International Decade for Natural Disaster Reduction of 1989;

51_{Ida Bagus Rahmadi, Supancana, 2007, “International Disaster Response Law, Rules and Principles}

(IDRL) Programme of the International Federation of Red Cross and Red Crescent Societies (IFRC)” (Paper unpublished, Presented at the Conference on Space Law and Space Applications for Disaster Management in the Asia Pacific Region, Chiangmai-Bangkok, 22 November 2007). p. 3.

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4) The Yokohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness, and Mitigation and its Plan of Action, adopted in 1994

5) UN Convention on the Safety of United Nations and Associated Personnel 1994; 52

6) The International Strategy for Disaster Reduction of 1999.

7) Optional Protocol to UN Convention on the Safety of United Nations and Associated Personnel 2005;

8) 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

9) The Sendai Framework for Disaster Risk Reduction 2015-2030 adopted at the Third UN World Conference in Sendai, Japan, on March 18, 2015.53

And also (Regional Cooperation Agreements)

1) EUR-OPA Major Hazards Agreement (Partial Agreement on the Prevention of, Protection Against, and Organization of Relief in Major Natural and Technological Disasters) 1987;

52_{Natalia Yeti Puspita, 2011, “Human Rights Protection to Women in times of Natural Disasters in the} Frame of ASEAN Regulations” (Paper unpublished, Presented on 2nd

CILS Conference 2011:

International Conference on ASEAN‟s Role in Sustainable Development in the Faculty of Law Universitas Gadjah Mada 21th and 22th November 2011). p. 7.

United Nations Office for Disaster Risk Reduction, Sendai Framework for Disaster Risk Reduction 2015-2030, Geneva: UNISDR, 2015. p. 5.

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2) ASEAN Agreement on Disaster Management and Emergency Assistance 2005; and

3) Inter-American Convention Disaster Assistance 1991.

b. General Normative Guidance

1) UN General Assembly Resolution 46/182, 1991 “Strengthening of the coordination of humanitarian emergency assistance of the

United Nations”;

2) UN General Assembly Resolution 57/150 of 2002; and

3) IASC Operational Guidelines on Human Rights and Natural Disasters (2006) and their Manual (2008).54

c. Normative Guidance on Specific Issues

1) INSARAG Guidelines (Urban Search and Rescue) 2002;

2) Guiding Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheriro Principles) 2005; 3) UN Principles on Internal Displacement;

4) Civil-military-relations (OSLO Guidelines, MCDA Guidelines);55 and

Natalia Yeti Puspita, Op. Cit., p. 7.

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5) Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (IDRL Guidelines) 2007.56

Other relevant legal documents, including but not limited to

1) Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disaster of 2000; 2) The statues of the International Red Cross and Red Crescent

Movement as amended in 1995;

3) The Principles and Rules of Red Cross and Red Crescent in Disaster Relief as amended in 1995;

4) The supplementary measures to enhance the implementation of the Seville Agreement of 2005; and

5) The measures to Expedite International Relief of 1977. 57

One of the most fundamental international instrument which regulated on the mechanism and gives 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.

Anonymous, “IDRL Guidelines”, International Federation of Red Cross and Red Crescent Societies, accessed from http://www.ifrc.org/en/what-we-do/idrl/guidelines/, February 19, 2016 at 03:42 PM.

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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.58

They may also prove useful for the development of bilateral and regional agreements and for agreements between governments and humanitarian organizations. States and National Societies unanimously adopted the Guidelines in 2007 at the 30th International Conference of the Red Cross and Red Crescent.59

The IDRL Guidelines recognize that the affected state holds primary responsibility for disaster response.60 However, if the state determines that the effects of a disaster exceed national capacities to respond effectively, it

International Federation of Red Cross and Red Crescent Societies, Introduction to the Guidelines; for the domestic facilitation and regulation of international disaster relief and initial recovery assistance, Geneva: IFRC Publisher, 2011. p. 11.

Ibid.

Paragraph 3, IDRL Guidelines. See also UN GA Resolution 46/182 (1991), UN GA Resolution

57/150 (2002), and Hyogo Framework of Action (2005) (hereinafter referred to as the „Hyogo Framework‟).

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should seek regional/international assistance.61 Moreover, the IDRL Guidelines recognize that the state has the sovereign right to coordinate, regulate and monitor disaster relief and initial recovery assistance provided on its territory, consistent with international law.62 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.63

2. ASEAN Regulation on Disaster Management

Disaster management issues continue to represent one of the most pressing areas for cooperation in the Association of Southeast Asia Nations (ASEAN) Regional Forum (ARF) region. In part due to the dialogue within ARF, a consensus has emerged on the need to better mitigate, manage and respond to disasters.64

The commitment of ASEAN towards disaster management due to facts that countries of ASEAN are: geographically located in one of the most disaster-prone regions of the world, the ASEAN region sits between several tectonic plates causing earthquakes, volcanic eruptions, and

See UN GA Resolution 46/182 (1991), and Hyogo Framework.

See UN GA Resolution 46/182 (1991).

Paragraph 4, IDRL Guidelines. See also UN GA Resolution 46/182 (1991), Oslo Guidelines on the Use of Military and Civil Defence Assets in Disaster Relief, updated 2006 (Oslo Guidelines), and Sphere Humanitarian Charter and Minimum Standards in Disaster Response (Sphere Handbook).

ASEAN Regional Forum, ASEAN Regional Forum: Work Plan for Disaster Relief 2015-2017, Jakarta: ASEAN Secretariat, 2015. p. 4.

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International Federation of Red Cross and Red Crescent Societies, Introduction to the Guidelines; for the domestic facilitation and regulation of international disaster relief and initial recovery assistance, Geneva: IFRC Publisher, 2011.

International Federation of Red Cross and Red Crescent Societies, International Disaster Response Laws (IDRL) Project Report 2002-2003, Geneva, 2003. International Federation of Red Cross and Red Crescent Societies, IDRL Fact Sheet

Number 3: Current Issues for the IDRL Project. Geneva, 2002.

International Strategy for Disaster Reduction, Living with Risk: A Global Review of Disaster Reduction Initiatives, Geneva: United Nations publication, 2004. Palang Merah Indonesia (PMI), International Federation of Red Cross and Red

Crescent Societies (IFRC), International Disaster Response Law (IDRL) in Indonesia; An Analysis of the Impact and Implementation of Indonesia’s Legal Framework for International Disaster Assistance, Geneva: IFRC Pub, 2014. Red Cross and Red Crescent Societies (IFRC), International Disaster Response Law

(IDRL) in Indonesia; An Analysis of the Impact and Implementation of Indonesia’s Legal Framework for International Disaster Assistance, Geneva: IFRC Pub, 2014.

Sushil Gupta et al, Synthesis Report on Ten ASEAN Countries Disaster Risk Assessment; ASEAN Disaster Risk Management Initiative, Jakarta: ASEAN Secretariat, 2010.

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