Cook Islands

International Disaster Response Law in the Pacific

Overview

Legal Preparedness for International Assistance Assessment

1. Do the Cook Islands have a clear legal framework for disaster risk management which includes procedures relating to international disaster assistance?
The Cook Islands has a clear legal framework for disaster risk management which is underpinned by the DRMA 2007 and the abovementioned associated documents. In addition to these documents is the National Disaster Risk Management Plan 2017 (NDRMP 2017) which is designed to help all agencies understand their role as measured across the full range of hazards and risks.
Damage assessments are outlined in the NDRMP 2017 which outlines three stages of damage assessments and the corresponding lead agency:
1. Immediate Situation Overview (EMCI, Police and Relevant Lead Agency);
2. Initial Damage Assessment (relevant Lead Agency); and
3. Sector Damage Assessment (each sector will lead its own sector damage assessment).

 

The Plan goes on to state all assessments must be reported to the NEOC for analysis by the Planning Cluster before reporting to the Response Executive for decision on the plan of action for the disaster, but there is no detail on the type of information that should be contained in the assessment or any agreed standard reporting process or template. In practice, however, the EMCI and stakeholders hold regular training sessions on the assessment forms which have been developed in partnership with the Cook Islands Red Cross Society. Further pre-cyclone season training sessions are held in December for all stakeholders to familiarise themselves with the assessment forms and how to complete them.

 

Provisions on International Assistance are not contained in the DRMA proper but can be found in the NDRMP 2017. These provisions on requesting international assistance will be detailed further in Question 4 below. These particular provisions were the direct result of the International Disaster Response Law (IDRL) in the Cook Islands report, which provided a thorough analysis of international assistance in the Cook Islands including a number of recommendations on how to strengthen that facilitation of international assistance.

 

Following the report, EMCI, together with relevant stakeholders, developed a Standard Operating Procedure for International Assistance which is now annexed to the NDRMP 2017.
2. Do the Cook Islands’ laws and regulations clearly set out a focal point for coordinating international disaster assistance?
The NDRMP 2017 sets out a clear focal point for coordinating international assistance. In fact, there is an entire cluster dedicated to the coordination and facilitation of international assistance for which the Ministry of Foreign Affairs is the cluster lead. Once international assistance has been formally requested by the Response Executive and the Prime Minister in Cabinet, the SOPs for international assistance (which are annexed to the NDRMP 2017) will be activated.
3. Do the Cook Islands’ laws and regulations outline the roles and responsibilities of different institutions relating to international disaster assistance?
The Cook Islands have a dedicated framework for international assistance. Annexed to the NDRMP 2017 are the Standard Operating Procedure for International Assistance during Disaster Relief and Initial Recovery Phase 2013 (SOPs). These SOPs outline the role of the International Assistance Focal Point (IAFP) which is to facilitate and coordinate international assistance and goes on to list a number of core functions and key responsibilities. The manager for the IAFP must be from EMCI and must work in collaboration with relevant international partners. The IAFP may be staffed by representatives from its permanent members; being EMCI, the Ministry of Foreign Affairs and Immigration, and the Ministry of Finance and Economic Management. The responsibilities of each of these staff members is further outlined in the SOPs.

 

The Cook Islands Red Cross Society (CIRCS) Act 2002 recognises the auxiliary role that the Red Cross plays to government authorities in disasters, and this is again reiterated in the SOPs, which discuss the role of the International Red Cross and Red Crescent Movement in disaster relief and acknowledges the work of the CIRCS in partnership with the government. They also recognise the ability of the CIRCS to manage its own international assistance requests but requires that it advise the Cook Islands government.
4. Do the Cook Islands’ laws and regulations outline a process for requesting/ welcoming offers of international disaster assistance, and for terminating international assistance?
Requests for international assistance are outlined in the SOPs. The Response Executive makes a decision based on initial damage and needs assessments as to whether international assistance is needed. The final decision, however, rests with the Prime Minster, in consultation with Cabinet and the Response Executive.

 

Once the Prime Minister approves to request international assistance, there are two methods
of initiating international assistance:
• IAFP must immediately send out either general or specific request (depending on the information provided from the NEOC) for assistance to the international community.
• In case of any Foreign Government who requires a formal request from the Cook Islands Government, the request must be send under MFAI.

 

CIRCS and local NGOs may also request assistance from overseas partners, however, they must provide the IAFP with information upon request.

 

Of particular note is a provision within the SOPs for the IAFP in collaboration with the Response Executive to send out specific instruction to Cook Island diaspora, especially in New Zealand and Australia, on how they can best support disaster relief efforts, in particular, monetary assistance.

 

The SOPs go on to detail the specifics of the request and what type of information should be included and outlines the process for ongoing communication and correspondence. While there are provisions for declining offers of assistance from international partners, there appear to be no provisions for the termination of international assistance.
5. Do the Cook Islands’ laws and regulations provide for necessary legal facilities to be provided to international assisting actors?
There are a number of laws giving specific immunities to international assisting actors.

 

The Customs Revenue and Border Protection Act 2012 provides the following facilities:
• Section 12 provides that the Comptroller of Customs, in consultation with the Minister of Transport and the Principal Immigration Officer, may designate any airport or port as a Customs place or port of entry. This allows greater flexibility in the importation of aid supplies.
• Section 148 of the Act allows for the temporary importation of goods. Subject to any conditions the Minister may impose, duty is not payable on goods temporarily imported in accordance with any treaty, agreement or arrangement concluded by the Government of the Cook Islands. This implies that international disaster relief equipment and vehicles could be exempted from levy under this section if an “arrangement” is entered into.

 

The Diplomatic Privileges and Immunities Act 1968 confers certain privileges and immunities on personnel of international organisations, in line with the Vienna Convention on Diplomatic Relations. A list of the organisations the Cook Islands have given this immunity to are set out on page 45 of the Cook Islands IDRL Report.

 

The Customs Tariff Act 2012:
• Schedule 2 Part II lists all situations in which goods are given a concession to standard customs procedures when they are imported into the Cook Islands for certain purposes. This includes goods imported by Churches for specific purposes and goods for approved public projects.
• Under section 26 of the Customs Tariff Act, relief goods are exempted from any duty, and are described as “Donated goods under this provision [imported] within one year from the date of disaster sent to an approved organisation from overseas for the relief of victims of natural disaster”.
• Section 27 specifically exempts relief goods coming in from CIRCS. This provision not only exempts relief goods coming in once the disaster has happened, but also prepositioned relief goods for victims of disaster. In addition, any time that CIRCS needs any further exemption from tax on these goods, it can apply for an exemption or a variation of s 27 by the Minister.
• Section 27 also covers any disaster relief item that comes unto the country after a State of Disaster has been declared, making it free from Import levy so long as it is imported by an approved organisation and meets the requirements of that section.
Approved organisations are usually identified by the Minister responsible for the management of the particular disaster. In practice, Customs usually requires a letter from the organisation sending the relief goods, as part of the verification process.

 

The Value Added Tax Act 1997:
• First Schedule states that “A supply of donated goods or services by a non-profit body” are exempt supplies for the purposes of taxation.
• Second Schedule sets out that the following are exempt importations from tax (only exemptions relevant to international aid/ assistance included here)

 

Goods imported:
• By or on behalf of any overseas government for its use in the Cook Islands whether in an office established by that overseas government or in any approved aid project; or
• By or on behalf of the United Nations, Pacific Forum Secretariat or the South Pacific Commission or any agency of those organisations for approved project in the Cook Islands; or
• For use in any approved aid project in the Cook Islands; or
• By a non-profit body as donation for use in any project in the Cook Islands

 

Goods which the Collector is satisfied are:
• Goods imported by an approved organisation, being gifts by persons resident abroad for the relief of victims of natural disasters

 

The Visiting Forces Act 1992–93 also extends privileges to members of visiting forces in the Cook Islands. This only applies to New Zealand’s visiting forces,104 however, an order in Executive Council may be made to extend the privileges to other countries’ visiting forces.

 

The Development Investment Act 1995–96 requires that any “foreign enterprise” register pursuant to the Act.106 This includes if the foreign enterprise is part of an international disaster relief response in any commercial sense. However, if the foreign enterprise forms part of an international response primarily for charitable purposes of a nature approved by the Cabinet, then it may be exempted under s 2(2) of the Act.

 

The Disaster Risk Management Act 2007 provides the following immunities:
(1) No action or proceedings shall be brought against the Crown, the Director, the National Controller, Disaster Coordinator, Disaster Recovery Coordinator or any officer or servant of them, or against any other person authorised to be engaged in Emergency Activity to recover damages for loss or damage to property or to the person in the exercise or performance of powers, duties, or obligations under this Act provided they were exercised in good faith.
(2) No person shall be personally liable for any Emergency Activity done negligently or otherwise or neglected to be done in accordance with this Act.
6. Do the Cook Islands’ laws and regulations set out quality standards for international assisting actors?
There appear to be no provisions within the Cook Islands regulatory framework which set out quality standards for international assisting actors.
7. Do the Cook Islands’ laws and regulations set out eligibility requirements for international assisting actors to receive legal facilities?
The IAFP will give priority assistance to international responder’s whose assistance has been accepted by the Response Executive (or in their absence the Director of EMCI and/or National Controller). Similarly, the border control agencies will give priority clearance to relief items sent from approved international responders and must make sure that approved international responders have the necessary information about what is needed at the border for prompt clearance.
8. Do the Cook Islands’ laws and regulations establish a specialised unit for expediting the entry of international disaster assistance?
The Ministry of Foreign Affairs and Immigration heads the Cluster for International Assistance. As soon as a request for international assistance is made by the Prime Minister, the IAFP is activated, the idea being that this core group will facilitate international assistance into the country. Specific provisions for the facilitation and coordination of the entry and departure of relief goods, equipment, including vehicles and aircraft are contained in the SOPs and outline the responsibilities of the IAFP in providing information for requirements for licenses and permissions, clearance of relief items from the airport and the harbour, collection points for relief items, and ministerial discretion to suspend some legal requirements.

 

Furthermore, a specific provision provides that the IAFP must “do what is needed to make sure relief items (goods and equipment including vehicles and aircraft) are processed in a fast and efficient manner at the border”.
9. Do the Cook Islands’ laws and regulations provide adequate transparency, safeguards and accountability mechanisms governing international disaster relief and initial recovery assistance?
The legislative and policy framework around disaster risk provide some limited but specific references to accountability and transparency. In particular, s 18 of the Disaster Risk Management Act 2007, provides that:
(1) The Director shall ensure that regular audits are undertaken of all plans required under this Act.
(4) All parties responsible for handling financial resources of any kind under this Act shall comply with the Ministry of Finance and Economic Management Act 1995-96 and the Cook Islands Financial Policies and Procedures Manual issued pursuant to Section 63 of that Act.

 

In addition, the Joint National Action Plan (JNAP) II provides for a financial strategy which aims
to:
• Ensure that the national planning and budgetary processes and systems, and in particular the Medium Term Budgetary Framework are adhered to; and
• Ensure consistency with the aid management requirements stipulated by donors and other partners.

 

More generally the nature of JNAP II’s implementation through the national budget and external donors and partners requires that “accurate monitoring and reporting of implementation results and that transparency is maintained at all times”.

 

Aside from these general commitments, there are no specific anti-fraud measures applied to international assistance.
10. Do the Cook Islands’ laws and regulations outline procedures for international disaster assistance sent from and transiting to the Cook Islands?
There appear to be no legislative frameworks or policies pertaining to international disaster assistance sent from, or transiting through, the Cook Islands.

Laws, policies, plans and other resources