Introduction: Setting the scene of international disaster law
As emphasized by the impressive data provided in the International Federation of Red Cross and Red Crescent Societies’ (IFRC) World Disasters Report 2018,Footnote 1 natural and technological disasters are a commonplace phenomenon, representing one of the most significant challenges for humanitarian actors and affected States. Despite its importance, the international legal architecture addressing prevention and response to disasters is commonly depicted along similar lines: as international law has managed this topic “in a confused and uncoordinated manner”,Footnote 2 through an “ad hoc incoherence of legal and institutional response”,Footnote 3 the result is “a rather scattered and heterogeneous collection of instruments”.Footnote 4 Indeed, the absence of an overarching and universal “flagship treaty”Footnote 5 represents an anomaly in comparison to other areas of law (for example, international humanitarian law (IHL)) and is due largely to past failures at the United Nations (UN) level, such as the 1984 Draft Convention on Expediting the Delivery of Emergency Assistance,Footnote 6 mirroring the unsuccessful experience of the International Relief Union in the 1920s.Footnote 7
As a result, the legal landscape pertaining to prevention and response to disasters is composed of a “pot pourri”Footnote 8 of binding instruments with varying impacts. Several universal treaties have addressed specific types of disasters, in particular technological ones,Footnote 9 or specific forms of assistance,Footnote 10 although these are limited by their low ratification numbers.Footnote 11 Regional treaties and soft law, especially in Europe, Asia, the Caribbean and the Americas,Footnote 12 are conversely assuming an increasingly important role, giving rise to a phenomenon of “regionalization” of international disaster law. Indeed, in the past decades there have been several binding documents developed by regional organizations in this area, coupled with the creation of institutional mechanisms of coordination and cooperation, in light of mandates provided by recent founding treaties of relevant regional organizations making express reference to the possibility of cooperating with regard to disaster settings.Footnote 13 However, the effective impact or self-sufficient character of such regional initiatives can be doubted,Footnote 14 especially in the face of large-scale disasters. The numerous bilateral treaties lack coherence, being sometimes limited to an exchange of good practices and information between States, while in significant regions, such as Africa, Asia and the Middle East, there is a very limited number of such instruments.Footnote 15
In light of States’ reluctance to address the legal regulation of disaster preparation and response through binding provisions, this area has also been characterized by an impressive number of soft-law instruments.Footnote 16 Such documents range from UN strategies for disaster risk reduction endorsed by UN General Assembly resolutionsFootnote 17 to instruments elaborated by non-State actors such as humanitarian organizations and NGOs, reflecting trends towards informal international law-making approaches.Footnote 18 However, the concrete impact of such instruments is hardly predictable. Sometimes they might assume a substantial role, as exemplified by the Sphere Project, mentioned in the Kampala ConventionFootnote 19 as a reference document for State actions, or by the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organisations in Disaster Relief, whose acceptance by NGOs has been required in order to access funds provided by main donors.Footnote 20 Still, such documents hardly escape the typical difficulties of soft-law instruments, as evidenced by the positive but lengthy progress of influencing regulatory changes at the domestic level experienced by the “Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance” (IDRL Guidelines)Footnote 21 adopted by the 27th International Conference of the Red Cross and Red Crescent.Footnote 22
Against this background, the activities recently carried out by the UN International Law Commission (ILC) on the topic of “Protection of Persons in the Event of Disasters” might represent the first step toward a significant law-making development in this area. As will be further discussed below, in recent years the ILC has been engaged in analyzing the abovementioned topic with the purpose of elaborating a series of Draft Articles on the Protection of Persons in the Event of Disasters (DAs) aimed at providing a legal framework for challenges raised in these contexts. This paper will thus assess activities carried out by the ILC in this area. First, the analysis will focus on the drafting history of the DAs and law-making techniques adopted by the Special Rapporteur and the ILC in order to subsequently explore and critically assess solutions endorsed in the text. In this regard attention will be paid to the structure of the DAs, arranged into “vertical” and “horizontal” dimensions, and the content of relevant provisions. Finally, the paper will address positions expressed by States on the recommendation made by the ILC to elaborate a universal treaty on the basis of the DAs, and will evaluate whether the current text is fit for this purpose.
Creation of the Draft Articles on the Protection of Persons in the Event of Disasters
The ILC, following an initial discussion held in 2006, decided in 2007 to include the topic “Protection of Persons in the Event of Disasters” in its programme of work,Footnote 23 a decision largely influenced by the impact and challenges raised by the 2004 tsunami affecting the Indian Ocean. In 2016, on the basis of the eight reports submitted by Special Rapporteur Eduardo Valencia-Ospina and commentsFootnote 24 provided by States, international organizations, the International Committee of the Red Cross (ICRC) and the IFRC on the twenty-one draft articles adopted on first reading in 2014,Footnote 25 the ILC adopted the final text of the eighteen DAs and their commentary on second reading.Footnote 26 The relevance of this text is amplified by the choice made by the ILC to recommend “to the General Assembly the elaboration of a convention on the basis of the draft articles”,Footnote 27 thus significantly diverging from recent trends of the ILC favouring “soft” final forms for topics under examination, such as guidelines or recommendations.Footnote 28 Indeed, since the late 1990s, the ILC has recommended the immediate drafting of a treaty only with regard to the Draft Articles on Diplomatic Protection,Footnote 29 coupled with few examples where the ILC has requested the General Assembly to take note of adopted texts and, “at a later stage”, to consider convening a diplomatic conference.Footnote 30 The choice made in this case reflects the characteristics of the proposed text, which, as in past instances, has been drafted with “the look and feel” of a convention;Footnote 31 this is evidenced by the mandatory language used for relevant provisions, with the constant use of the verb “shall” rather than “softer” alternative formulas such as “should”, and the inclusion of a preamble, commonly included by the ILC for texts expected to be translated into a treaty.Footnote 32
The final result will obviously depend on States’ attitudes, which are explored in detail below. Through its Resolution 71/141 adopted in December 2016, the UN General Assembly requested States to submit “comments concerning the recommendation by the Commission to elaborate a convention on the basis of these articles” and included this item in its 2018 agenda.Footnote 33 In 2018, States provided diverging views on the final form of the DAs: some were in favour of translating them into a binding text, while others were against this potential outcome. This created a stalemate situation leading to the adoption of Resolution 73/209Footnote 34 in December 2018, which reiterated the request to receive comments by States on the proposal to adopt a treaty and noted the decision to include this topic in the General Assembly's 2020 agenda.
The law-making techniques and structure of the DAs
Taking into account the variegated legal framework provided by instruments addressing disasters, it was a complex matter for the ILC to limit its activities to traditional codification efforts based on extensive State practice, precedent and doctrine.Footnote 35 As a result, “the draft articles contain elements of both progressive development and codification of international law”Footnote 36 without clearly spelling out the current nature of proposed provisions. Although some members of the Commission spoke against the ambiguity of this approach,Footnote 37 it allowed the elaboration of a more comprehensive text that was able both to address issues not yet sufficiently crystallized into practice and to provide a broad systematization to the fragmented existing legal framework.
Furthermore, the ILC has not apparently “abused” this flexible law-making approach, as aspects of progressive development are mainly limited to provisions addressing disaster risk reduction, the duties to cooperate and request assistance, and the consent of the affected State. While criticism from some States implied that solutions adopted in these provisions were not yet grounded in solid practice, other States supported the proposed solutions as they provided a systemic approach to the issue.Footnote 38 This self-restrained approach is also emphasized by the overall structure of the DAs. The ILC's final text is a short one, composed of only a preamble and eighteen articles, some of which have a mere functional role, such as provisions addressing the “Scope” (Article 1) and “Purpose” (Article 2) of the project, and the “Use of Terms” (Article 3). This solution, coupled with the decision to draft basic general principles rather than detailed provisions, permitted the ILC to limit instances where it was required to resolve contentious issues; the final result is a sort of framework convention whose content might appear elusive to some extent.
The Special Rapporteur managed the topic through complementary law-making techniques rightly qualified as being inspired by a “holistic body approach” that aimed to “systematize matters and provide order to a rather messy area of the law”.Footnote 39 First, a “quantitative” analysis of relevant practice was a driving factor for inspiring the content of the proposed provisions, whose final text has at times resulted in the need to opt for one of the different wording options provided by practice, especially when practice was not entirely consistent or required to be complemented to provide overall coherence to the DAs.Footnote 40 The extensive survey of practice broadly relevant for the topics under examination ranged from binding texts to numerous references to soft-law instruments, including documents elaborated by non-governmental actors, such as groups of experts, NGOs and the IFRC.Footnote 41 Regardless of the character of such latter instruments as “even softer than soft law”,Footnote 42 their substantial relevance in light of their capacity to capture elements pertaining to this area of law and to provide oriented solutions for involved actors has been particularly emphasized in this project. Second, the Special RapporteurFootnote 43 made use of analogy, taking inspiration from provisions belonging to other branches of international law – such as IHL, international human rights law, international environmental law and refugee law – in order to reinforce and provide a stronger legal basis for proposed solutions dealing with disaster settings, as exemplified by Articles 6 (humanitarian principles), 9 (disaster risk reduction), 12 (offers of assistance) and 13 (consent). Finally, concerning Article 5 dealing with human rights, the substantive legal framework underpinning some issues raised by relief operations was directly “outsourced” from other branches of international law.
As for their structure, the DAs are not comprehensively systematized, lacking separate sections or parts as provided in past ILC projects. Nonetheless, the provisions can be implicitly accommodated along different lines that align with the same “purpose” of the project as identified in Article 2, which makes reference to the DAs’ aim “to facilitate the adequate and effective response to disasters, and reduction of the risk of disasters, so as to meet the essential needs of the persons concerned, with full respect for their rights”.
This provision encompasses some of the main aspects addressed by the text. First, as the legal and operational challenges generated by disasters had brought attention to the overall disaster cycle,Footnote 44 the DAs not only included the traditional focus on the relief and recovery phases but also addressed disaster risk reduction, an additional key component of the institutional and legal discourse pertaining to this area. In such a manner, the ILC's project favoured “a more holistic approach”Footnote 45 to disaster law issues.
Second, the ILC was required to balance the different and potentially diverging perspectives of involved actors, namely (a) the affected State, whose sovereignty represents one of the pillars of the text, as reaffirmed in the preamble;Footnote 46 (b) external assisting actors, such as States, international organizations, NGOs and “entities” (a term of art intended to include the different components of the International Red Cross and Red Crescent MovementFootnote 47); and (c) the victims of disasters. This latter perspective was potentially able to assume a more predominant role, both in light of the scope of the project and the increasing relevance of the so-called “rights-based” approachFootnote 48 that aimed to “integrate human rights into disaster responses”,Footnote 49 to make relief activities “operationally directed to promoting and protecting human rights”,Footnote 50 and to empower affected individuals to claim their rights. However, an endorsement of this latter perspective, as opposed to the more traditional “needs-based” one, would have risked undermining States’ support for the ILC text. As a result, even if the commentary to Article 2 qualifies both approaches as complementary and not mutually exclusive,Footnote 51 the rights-based approach has not been overemphasized in the project. Indeed, as recently recognized by Hafner, a striking difference between the codification efforts promoted by the ILC and the 2003 Resolution on Humanitarian AssistanceFootnote 52 adopted by the Institut de Droit International (IDI) is that “the IDI does not abstain from formulations that deviate from existing practice in favor of human rights. The IDI approach is still more under the influence of the right[s-based] approach than the ILC.”Footnote 53
Consequently, difficulties in balancing different perspectives finally resulted in a set of provisions implicitly accommodated along two main axes: a “vertical” axis, addressing relationships between victims, the affected State and assisting actors (Articles 4–6), so as to reflect “a vertical rights-duties approach in the classical human rights sense”;Footnote 54 and a “horizontal” axis, relating to cooperation between affected States and assisting actors (Articles 7–17).
Scope of the DAs and relationship with IHL
Concerning the content of the DAs, the first set of provisions provides the boundaries of the project. Apart from the preamble, which states the basic principles of the project, and Articles 1 (“Scope”) and 2 (“Purpose”), whose relevance relates only to their commentaries’ ability to provide some guidance clarifying the scope of application ratione materiae, personae, temporis and loci of the DAs, a key provision can be identified in Article 3 (“Use of Terms”).
In particular, Article 3(a) defines a disaster as “a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society”. The drafting process of this term was not an easy one, as recognized by the Special Rapporteur, according to whom “there is no generally accepted legal definition of the term in international law”.Footnote 55 Nonetheless, apart from isolated practice not providing a definition of this term, as experienced with the 1991 Inter-American Convention to Facilitate Disaster Assistance, relevant instruments generally support descriptive approaches, such as pointing to distinctive characteristics of an event in order to legally qualify it as a “disaster”.Footnote 56 In light of recurring features broadly present in contemporary practice, the ILC requires the fulfilment of two cumulative criteria, namely the capacity of such events to both produce detrimental effects and to seriously disrupt the functioning of a society. Further details are provided in the commentaries to the DAs, highlighting relevant elements required by the definition.
Regarding the first element, although the ILC included the qualifier “calamitous” to raise the threshold to cover “only extreme events”,Footnote 57 negative outcomes affecting persons, property and the environment are not required to be ascertained on a cumulative basis, thus enlarging the category of events able to satisfy this criteria. Furthermore, disasters are not required to have a transnational character,Footnote 58 while reference to “a series of events” aims to include cumulative small-scale disasters incapable by themselves of meeting the high threshold set by the text.Footnote 59 Properly, the ILC has refused to circumscribe its focus to so-called “natural disasters”, unlike treaties such as the 2011 South Asian Association for Regional Cooperation Agreement on Rapid Response to Natural Disasters, thereby taking into account the complexity of separating the interactions between human activity and natural hazards, as emphasized by disaster studies.Footnote 60 Furthermore, mere situations of political and economic crisis are not included in this definition, and a clear statement added on second reading specifies that “[a] situation of armed conflict cannot be qualified per se as a disaster”.Footnote 61 Indeed, even if, “[c]olloquially speaking, armed conflicts can be called disasters[,] … from an international legal point of view, armed conflicts are distinct from other man-made or natural disasters”.Footnote 62 The solution adopted by the ILC, subsequently confirmed by UN documents related to the Sendai Framework for Disaster Risk Reduction (Sendai Framework),Footnote 63 clarifies this element, thus rejecting claims made by some scholars in this regard.Footnote 64
This latter element brings attention to the relationship between IHL and the DAs, especially in light of the fact that the DAs could be translated into a treaty. In particular, potential challenges concerning the application of a proper normative framework might arise in so-called “complex emergencies” – namely, disasters occurring on territories already involved in an armed conflict – due both to the geographical scope of application of IHL and the difficulties of separately addressing the situations of a population in need as a result of an armed conflict and a disaster situation.Footnote 65 To address this scenario, Article 18(2) of the DAs provides that “[t]he present draft articles do not apply to the extent that the response to a disaster is governed by the rules of international humanitarian law”. This wording clarifies an aspect of the DAs which was not clearly spelt out at the first reading, namely to attribute primacy to IHL as regards the regulation of humanitarian assistance in such scenarios.Footnote 66 Nevertheless, Article 18 leaves unchanged the possibility for the DAs to apply as a residual legal framework for disaster scenarios not governed by IHL.Footnote 67
However, a comparative examination of the DAs and IHL norms affirms that potential conflicts would be quite limited. On the one hand, the ILC has confirmed the applicability of several solutions familiar to IHL in disaster settings, such as the humanitarian principles (Article 6) and the requirement to obtain the consent of the involved State for relief operations (Article 13.1). Still, the stricter regime provided by IHL in some circumstances,Footnote 68 as in case of humanitarian assistance involving occupied territories, could take precedence through the application of Article 18.2. In some cases, however, the DAs might additionally detail some aspects not exhaustively addressed by IHL, such as the procedural obligations to consult and notify on the termination of external assistance (Article 17). Nonetheless, it should be emphasized that the ICRC, expressing its position in relation to the text and commentary adopted on first reading, introduced some critical remarks, particularly concerning the content of Article 10.2, which provides that “[t]he affected State has the primary role in the direction, control, coordination and supervision of such relief assistance”. Even if this formula has been used by the ILC in light of a constant practice dealing with disaster settings, it has been argued that “this Draft Article is potentially very intrusive for impartial humanitarian organizations such as the ICRC …. IHL only authorizes the concerned parties to the armed conflict and States to verify the humanitarian nature of the assistance through a so-called right of control.”Footnote 69 In this regard, however, the solution endorsed by the ILC in Article 18(2), attributing primacy to IHL, should finally permit IHL to take precedence. It should also be underlined that Article 18(1) contains a no-prejudice clause with regard to “other applicable rules of international law”, aimed to give application, for instance, to more detailed rules included in treaties having the same ratione materiae as the DAs, such as regional or bilateral treaties on mutual assistance.
Coming back to the definition of disaster in the DAs, such an event must also fulfil the additional criteria provided by Article 3(a), specifically its capacity to “seriously disrupt the functioning of a society”. This latter term has not been qualified in the commentary and might create some difficulties, especially if implied to cover only events having a very significant magnitude toward the entire society of the affected State.Footnote 70 Conversely, practice usually combines this additional criterion with other related notions, such as “community”, or emphasizes the potential limited geographical reach of calamities,Footnote 71 as recently reiterated by the definition adopted by the intergovernmental group of experts requested to identify indicators for the Sendai Framework, which cited events producing “a serious disruption of the functioning of a community or a society at any scale”.Footnote 72
Article 3(b) also details other definitions relevant for determining the scope of application of the DAs. For example, the notion of “affected State”, outlined by the ILC through a twofold hypothesis, refers to “a State in whose territory, or in the territory under whose jurisdiction or control, a disaster takes place”, thus covering in the latter case situations where a State exercises “de jure jurisdiction, or de facto control, over another territory in which a disaster occurs”.Footnote 73 This exceptional situation might imply the possibility for two States to be equally qualified as “affected” as a result of the same disaster without providing guidance on solutions to solve potential problems raised by such overlapping. Other terms appear less problematic: Articles 3(c) and 3(d) define the “assisting State” and “other assisting actor”, namely a “competent intergovernmental organization or a relevant non-governmental organization or entity”, so as to recognize the plurality of external assistance actors. While the text adopted in 2014 only referred to the IFRC and ICRC, the commentary expressly mentions that the term entity “is to be understood as referring to entities such as the Red Cross and Red Crescent Movement”.Footnote 74 Such reference thus also covers National Red Cross and Red Crescent Societies (National Societies) in light of their significant role in disaster settings.
Finally, “relief personnel” – namely civilian or military personnel sent by external actors – and “equipment and goods” are descriptive terms based on similar texts provided by practice. Still, some States, the European Union and the IFRC advanced some criticism on the definition of “relief personnel” and the commentary adopted on first reading, as the ILC did not underline how relevant policy documents, such as the Oslo Guidelines on the use of foreign military assets in disaster relief operations,Footnote 75 qualify the use of military personnel and assets as a “last resort” option in case of lack of comparable civilian alternatives. Although the Special Rapporteur proposed on second reading to include a reference to the “last resort” formula in the definition,Footnote 76 this solution was not endorsed by the ILC. Even if this express reference would have been redundant within the text of Article 3, a mention of this principle in the commentary would have reaffirmed a basic tenet of international relief operations.
Discovering the “vertical” and “horizontal” dimensions of the DAs
The “vertical” dimension
As mentioned above, it is possible to highlight a “vertical” dimension of the project, as seen in Articles 4 (“Human Dignity”), 5 (“Human Rights”) and 6 (“Humanitarian Principles”) relating to the relationships between the victims and assisting actors. On the one hand, these provisions reaffirm the relevance of the protection of affected individuals within the structure of the DAs, and are included in the opening provisions of the substantive section of this document. On the other hand, to some extent they act as mere “reminder[s]”Footnote 77 of relevant obligations provided by other sources, without laying down any substantive content themselves, in particular Articles 4 and 5.
According to Article 4, “[t]he inherent dignity of the human person shall be respected and protected in the event of disasters”. Reflecting its character as “a guiding principle for any action to be taken”,Footnote 78 the ILC preferred to address this element in an autonomous provision rather than including a mere reference to it in the preamble, as proposed by some States. However, the commentary lacks clarifications on the actual legal relevance of the norm in disaster contexts.
More relevantly, Article 5 affirms that “[p]ersons affected by disasters will be entitled to respect for and protection of their human rights in accordance with international law”. Even if this provision appears self-evident, since “there is no doubt that international human rights law applies to natural disasters”,Footnote 79 it has the merit of emphasizing the critical relevance of human rights for the protection of persons affected by disasters. Indeed, although “from a strictly legal point of view, there is no categorical difference between disasters and any other situation to which human rights apply”,Footnote 80 calamities may nonetheless lead to interpretative tensions in the application of relevant rules. As emphasized by an increasing practice developed by human rights bodies,Footnote 81 disasters might require a context-based interpretation of relevant obligations – for instance, implying the need for additional efforts to be made by States to address vulnerabilities raised or accentuated by disasters, or that States could request limitations or derogations from their existing obligations in order to deal with the effects of a disaster.Footnote 82
In this regard, the deliberate choice of the ILC was to include a mere reminderFootnote 83 on the potential relevance of the human rights legal framework, on the assumption that the drawing up of a comprehensive list of relevant rights was not feasible.Footnote 84 This approach, which may be qualified as minimal in the light of the purpose of the project, was nevertheless welcomed by States,Footnote 85 particularly those concerned with the possible shift of the project toward a rights-based approach. Nevertheless, Article 5 and its commentary provide some guiding elements.
Compared to the version adopted on first reading, the ILC outlined on the second reading the relevance of both negative and positive obligations, as underlined by the additional reference to the term “protection”, to accompany the original reference to “respect” for human rights. Indeed, positive obligations might be particularly relevant in disaster settings, given the need to adopt proactive measures, as emphasized by a series of relevant documents adopted by human rights bodies (in 2018 alone) confirming the growing attention paid to the protection of human rights in such scenarios.Footnote 86 The commentary to the DAs also identifies some potentially relevant human rights: the right to life, health, food, housing, education and information. This list can be extended to other significant issues, such as the right to a healthy environment. Furthermore, the commentary makes reference to specific challenges raised by vulnerable groups. Significantly, as recognized by Article 2 of the IDI's 2003 Resolution on Humanitarian Assistance,Footnote 87 the ILC also included “the right to receive humanitarian assistance” among relevant rights in the DAs, even though the commentary does not further develop this sensitive issue, which is particularly debated by scholars in relation to the possibility of identifying a potential individual right on this matter.Footnote 88
Finally, as requested by several States,Footnote 89 the commentary underlines how reference in Article 5 to the enjoyment of these rights “in accordance with international law” refers to an “affected State's right to suspend or derogate where it is recognized under existing international agreements”.Footnote 90 In this case too, the ILC preferred to make a renvoi to the pertinent legal system rather than directly addressing this issue, reflecting recurring scenarios where States have limited or expressly derogated from their human rights obligations in times of disaster.Footnote 91 Furthermore, it should be noted that the relevance of human rights for the DAs is not limited to Article 5. In particular, the basis of several provisions pertaining to the so-called “horizontal” dimension of the project have also been underpinned by relevant human rights obligations. This is the case, in particular, for Articles 7, 9, 10, 11, 12, 13 and 14, thus confirming the complementary relevance of human rights standards to justifying solutions endorsed by the ILC.Footnote 92
Article 6, addressing humanitarian principles, states that “[r]esponse to disasters will take place in accordance with the principles of humanity, neutrality and impartiality, and on the basis of non-discrimination, while taking into account the needs of the particularly vulnerable”. The provision is particularly significant because although these principles, largely transposed from IHL, are reaffirmed in seminal soft-law instruments addressing disasters, such as UN General Assembly Resolution 46/182, or documents such as the 1994 Red Cross Code of Conduct, they have only been incorporated on a few occasions into binding texts, such as Article 214(2) of the Treaty on the Functioning of the EU or Article 3 of the Framework Convention on Civil Defence Assistance.Footnote 93 The express recognition of humanitarian principles in Article 6 of the DAs must consequently be welcomed, since in disaster contexts “these principles and their underlying rationale are under increasing challenge”.Footnote 94
The material content of Article 6 has some peculiarities. First, there is an unusual difference between its text, which is limited to the response phase, and the commentary, where humanitarian principles are rightly qualified as being applicable “to the provision of disaster relief assistance, as well as in disaster risk reduction activities”,Footnote 95 as this latter scenario might also raise similar concerns. Equally significant is the qualification of non-discrimination as an “autonomous principle”Footnote 96 potentially infringed by biases of “ethnic origin, sex, nationality, political opinions, race, religion and disability”,Footnote 97 whereas on some occasions non-discrimination has been qualified as a sub-specification of the principle of impartiality.Footnote 98 The reference made to the “needs of the particularly vulnerable” in the DAs emphasizes the potential exigency to adopt positive discrimination towards certain individuals or groups.Footnote 99 While reference is made to girls, boys, women, older persons, and persons with disabilities or debilitating diseases, as well as to internally displaced persons through cross-references to UN General Assembly Resolution 69/135 and the IDRL Guidelines, this list could potentially be extended to other vulnerable groups during disasters, such as migrants or indigenous people as recognized by the International Organization for Migration and the UN Human Rights Council.Footnote 100
The “horizontal” dimension
A significant set of provisions can be grouped around the “horizontal” dimension of the project (Articles 7–17), which aims to regulate the legal relationships involving the affected State and assisting actors during the disaster cycle, focusing on disaster risk reduction (Article 9) and, subsequently, the relief/recovery phases (Articles 10–17).
These relationships, according to Article 7, must be inspired by a duty to cooperate, which can be achieved through measures identified in Article 8, which deals with cooperation.Footnote 101 Through this provision the ILC deemed it desirable to emphasize the relevance of the principle of solidarity, which significantly is reaffirmed in the preamble.Footnote 102 However, the effective legal value of this provision, which some States argued should be deleted or redrafted in non-binding terms,Footnote 103 is rather uncertain, as already experienced in past ILC projects where similar rules have been included.Footnote 104 The commentary simply provides an overview of this principle in international law, highlighting the different nature of actors potentially affected, as this provision was not intended to identify “the level of cooperation being envisaged, but rather the actors with whom the cooperation should take place”.Footnote 105 Its scope can be better interpreted in light of other provisions. For instance, Article 7 (“Duty to Cooperate”) raises the question of whether, on its basis, a more timely obligation to provide cooperation might be inferred, a hypothesis excluded by the commentary both to Article 8 (“Forms of Cooperation in the Response to Disasters”), the purpose of which is merely to be “illustrative of possible forms of cooperation” and which “is not intended to create additional legal obligations for either the affected States or other assisting actors”,Footnote 106 and Article 12 (“Offers of External Assistance”), which underlines the non-existence of “a legal duty to assist”.Footnote 107 In a more incisive manner, the duty to cooperate is recalled among the rationales behind Article 11 on the obligation to seek assistance. For the ILC, “Draft Article 7 affirms that the duty to cooperate is incumbent upon … affected States where such cooperation is appropriate”;Footnote 108 this scenario is raised once the affected state is unable to cope with the disaster, thus triggering the obligation provided by Article 12. In essence, Article 7 outlines a general principle allowing better framing of the activities that different actors may be called upon to put in place. In the present author's view, Article 7 may impose a duty on the affected State to notify other States of disasters that may be potentially detrimental to them, a hypothesis admitted by the ILC only with reference to specific treaty obligations.Footnote 109 Such conduct might represent a concrete expression of the duty to cooperate.
Disaster risk reduction
Although disaster risk reduction (DRR) may historically qualify as a “second generation” in the development of the legal and policy framework pertaining to disasters (which originally focused mainly on the relief phase), this area has since acquired a high degree of relevance as DRR activities are able to significantly reduce the negative impact of potential disasters. The universal approach to DRR has, however, been addressed mainly by non-binding instruments in line with informal international law-making trends, as expressed in the past and current strategies developed by world conferences on DRR (Yokohama, Hyogo, SendaiFootnote 110), which aim to foster domestic activities in this area and enhance international governance aimed at implementing such goals.Footnote 111 These universal initiatives have been able to play a significant role in shaping the activities of States, international organizations and non-State entities, including through voluntary report mechanisms aimed at assessing at the domestic level the fulfilment of goals provided by the strategies, and attempts to identify indicators to better assess States’ performance. In addition, recent binding international disaster law instruments have increasingly imposed on State measures in this area,Footnote 112 thus confirming the possibility of translating DRR activities into concrete obligations. Other instruments, such as the IFRC/United Nations Development Programme (UNDP) Checklist on Law and Disaster Risk Reduction presented to the 32nd International Conference of the Red Cross and Red Crescent in 2015,Footnote 113 have aimed to play a guiding role for States.
Consequently, the ILC devoted Article 9(1) of the DAs to DRR, claiming that “[e]ach State shall reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate and prepare for disasters”. Undoubtedly this provision is one of the most significant in the project, although it should be recalled that some States have been critical, requesting its deletion or the use of “should” instead of “shall”.Footnote 114 Contrariwise, the ILC linked this obligation to multiple potential bases, in particular (a) the “widespread practice of States reflecting their commitment to reduce the risk of disasters”;Footnote 115 (b) positive human rights obligations, as recently also emphasized by the Human Rights Committee; and (c) the due diligence principle expressed in international environmental law.Footnote 116 In this case, the context-based character of the relevant obligation, as expressed by the due diligence standard provided by the wording of this provision, would determine a certain margin of appreciation on States concerning the extent of measures to fulfil this obligation. Still, especially regarding the increasing practice developed by human rights bodies in this context,Footnote 117 it might be claimed that positive obligations imposed by some human rights provisions, as regarding the right to life, might provide a strong legal basis for requiring States to properly act to prevent and mitigate disasters in some concrete circumstances.
Measures to be adopted have a distinct character in comparison to those pertaining to the relief/recovery phases. Reference could be made to the development of technical prevention standards at the domestic level – for example, sectoral laws dealing with development planning, construction, land use and environmental protection, as enucleated in the abovementioned IFRC/UNDP Checklist, or to measures identified by Article 9(2), namely the “conduct of risk assessments, the collection and dissemination of risk and past loss information, and the installation and operation of early warning systems”. Such latter measures have mostly been adopted by the ILC from similar examples provided by the Sendai Framework, thus confirming the close relationship between these two instruments. Indeed, as explicitly recognized by the UN International Strategy for Disaster Reduction's comment on the DAs, there is a “functional relationship between the draft articles and the Sendai Framework in that the former articulates the duty to reduce the risk of disasters and to cooperate, and the latter articulates the modalities and measures that States need to adopt to discharge such duty”.Footnote 118 Through Article 9(2), there is the possibility of enunciating a proper legal obligation in this area that is able to override the soft-law approach endorsed by States in elaborating the universal DRR strategies.
The “checks and balances” approach between the interests of the affected State and assisting actors in the relief phase
As mentioned above, the “horizontal” dimension of the project (Articles 10–17) governs the response/recovery phases and the relationships between the affected State and external assisting actors. These provisions establish a complex mechanism of “checks and balances” between the potentially diverging perspectives of relevant actors, namely the affected State, whose sovereignty in the affected area has a series of legal implications, and external actors interested in operationalizing the values of cooperation and solidarity expressed in Article 7. This complex equilibrium is reflected in these provisions, characterized by a drafting tension expressed through different techniques. For example, parallel provisions can counterbalance measures required of different actors, such as Article 11, which obliges the affected State to seek international assistance in some circumstances, coupled with Article 12(2), which conversely imposes on external actors a duty to evaluate requests for assistance from an affected State. This contrast can also be expressed in the same provision, as in Article 13: on the one hand, para. 1 reiterates that external assistance can only be performed with the consent of the affected State; on the other, para. 2 highlights an obligation of the affected State not to arbitrarily deny such assistance.
The first focal point for any disaster operation is certainly the affected State, in light of legal implications of the customary rule on sovereignty. As remarked in para. 5 of the preamble and its commentary, “the principle of the sovereignty of States … is a core element of the draft articles. The reference to sovereignty … provides the background against which the entire set of draft articles is to be understood.”Footnote 119 Therefore, the ILC aimed to balance the different perspectives inherent in this rule.
On the one hand, the ILC included provisions linked to traditional “sovereignty duties”Footnote 120 related to sovereignty in order to limit the activities of external actors in the territory of the affected State, as well as requiring the State to protect against detrimental acts carried out in its own territory. In the first case, reference could be made to provisions requiring the consent of the affected State to provide external assistance (Article 13) or permitting it to impose conditions on such assistance (Article 14), while the duty to protect relief personnel (Article 17) is an example of the second hypothesis. Likewise, sovereignty is a sound legal basis for Article 10(2), according to which “[t]he affected State has the primary role in the direction, control, coordination and supervision of such relief assistance”, reflecting the State's role in managing different coordination models of external actors offered by bilateral and regional assistance treaties or by the complex UN coordination system.Footnote 121
On the other hand, the ILC has emphasized “positive” duties associated with sovereignty, thus inferring a series of obligations for the affected State aimed at strengthening protection for victims. Similarly to the approach adopted in UN General Assembly Resolution 46/182,Footnote 122 Article 10(1) states that “[t]he affected State shall have the duty to ensure the protection of persons and the provision of disaster relief assistance on its territory, or on territory under its jurisdiction or control”. In this manner the ILC transposes into this area solutions endorsed by the UN Secretary-General's High Level Panel on Threats, Challenges and Change, according to which sovereignty “clearly carries with it the obligation of a State to protect the welfare of its peoples and to meet its obligations to the wider international community”.Footnote 123
To reach this outcome, the development of dedicated and efficient national structures capable of managing disasters is a basic requirement, as implied by policy standards pertaining to DRR.Footnote 124 However, where national capacities are insufficient, Article 11 states that “[t]o the extent that a disaster manifestly exceeds its national response capacity, the affected State has the duty to seek assistance”. According to the ILC, this obligation originates both from duties expressed by the rule on sovereignty and by positive human rights obligations, which may impose on the affected State a proactive duty to look for international support to protect victims.Footnote 125 However, the ILC, to avoid sensitive issues and solutions not grounded in concrete practice, did not focus on the potential involvement of third-party actors, such as the United Nations Emergency Relief Coordinator, in assessing the inability of the affected State to seek assistance. Such assessment will still be based on self-evaluations made by the concerned State which “must be carried out in good faith”, thus emphasizing a potential legal parameter.Footnote 126 The relevance of this rule should not be underestimated, as in past disasters States have unduly delayed requests of external support for reasons of national prestige.Footnote 127 Furthermore, this provision could be an example of the ILC's preference for a “holistic” approach to relevant legal issues and providing a systemic solution toward aspects not clearly addressed in disaster law instruments, as emphasized by this duty only previously being recognized in non-binding documents such as the IDI's Resolution on Humanitarian Assistance and the IDRL Guidelines.Footnote 128
As mentioned, the “horizontal” dimension of the project aims to balance the interests of the affected State with those of assisting actors, and consequently a number of provisions address the latter's role. First of all, Article 12(2) states that “in the event of disasters, States, the United Nations and other potential assisting actors may provide assistance to the affected State”. This provision is primarily intended to underline that such offers cannot be regarded as interference in the affected State's internal affairs,Footnote 129 according to the similar solution elaborated for humanitarian assistance in armed conflicts.Footnote 130 On the other hand, the Commission has expressly maintained that “[s]uch offers … are essentially voluntary and should not be construed as a recognition of the existence of a legal duty to assist”.Footnote 131 Consequently, the ILC denied the existence of a legal obligation to provide assistance, in light of refusals expressed by States on earlier solutions suggested by the Special Rapporteur which aimed to identify a duty for assisting States as a legal obligation of conduct.Footnote 132
Nonetheless, even in this case, the ILC offered a balance between various interests, specifying in Article 12(2) that “[w]hen external assistance is sought by an affected State by means of a request addressed to another State, the United Nations, or other potential assisting actor, the addressee shall expeditiously give due consideration to the request and inform the affected State of its reply”. This rule, echoing practice aimed to facilitate the activities of regional coordination mechanisms,Footnote 133 assumes a far-reaching character in this context, aiming to limit the discretion of assisting actors. Through the procedural obligation laid out in para. 2, the affected State might increase political-diplomatic pressure on potential assisting actors, as they are obliged “first, to give due consideration to the request; and, second, to inform the affected State of … their reply”.Footnote 134
Consent of the affected State
The effective implementation of international relief activities ultimately depends on the consent of the affected State. However, the ILC has sought to keep a complex balance between basic prerogatives provided by sovereignty and the need to protect victims through international support. This normative tension is expressed in Article 13, which provides:
1. The provision of external assistance requires the consent of the affected State.
2. Consent to external assistance shall not be withheld arbitrarily.
3. When an offer of external assistance is made in accordance with the present draft articles, the affected State shall, whenever possible, make known its decision regarding the offer in a timely manner.
The drafting process of this provision has been particularly contentious in light of similar problems encountered by efforts to regulate humanitarian assistance in armed conflicts, where a similar ongoing debate is evidenced by the recent elaboration of the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (Oxford Guidance) commissioned by the UN Office for the Coordination of Humanitarian Affairs (OCHA).Footnote 135 As a result, the solution provided by Article 13 deserves particular attention.
First, para. 1 reinforces the sovereignty of the affected State, subordinating the provision of assistance to its consent in line with practice provided by international disaster law instruments.Footnote 136 This basic requirement also satisfies another rationale, namely the possibility of regulating the influx of humanitarian actors in order to avoid situations where “open door” policies “have encountered problems of supply-driven thinking, non-professional relief workers (often with their own particular goals) and the blocking of appropriate aid”.Footnote 137 Indeed, through the consent requirement, the affected State can eventually better regulate the flow of international actors, avoiding cases where the activism of non-professional actors or the massive presence of assisting actors could create bottleneck effects for assistance effectively required by the affected State. Such practice is reflected in the decision of the Chilean authorities to pose limitations in the aftermath of the 2010 earthquake. The limitations aimed to allow consent only for limited forms of assistance and related assisting actors in light of targeted needs.Footnote 138 This rule, when applied in good faith, can therefore indirectly contribute to the protection of affected communities.
However, the ILC, despite the opposition of some States,Footnote 139 has maintained the inclusion of para. 2 in order to underline how the affected State cannot refuse consent in an arbitrary manner. The ILC, in line with Article 8 of the IDI's Resolution on Humanitarian Assistance, has therefore significantly transposed into this area a solution already proposed in IHL,Footnote 140 identifying its origin in positive obligations under human rights law and in duties of protection implied in the principle of State sovereignty.
The commentary to the DAs also better defines the scope of application of Article 13(2), providing an interpretation on the concept of arbitrariness. For example, the ILC qualifies as non-arbitrary refusals situations where the affected State is able to cope with the disaster or obtain appropriate support by other actors, or cases where offers are not in line with the humanitarian principles expressed in Article 6. One can see how the application of such principles – for instance, in the US refusal of Cuban offers of medical support in the aftermath of hurricane Katrina – might be justified, provided the affected State was able to obtain similar assistance from other entities.Footnote 141 Conversely, the ILC suggested that if the affected State does not provide motivation concerning its decision to refuse offers of external assistance, this attitude might demonstrate absence of good faith, thus raising doubts about the fulfilment of the criteria expressed in para. 2.Footnote 142 Consequently, the ILC provided the procedural obligation expressed by para. 3 concerning a duty to promptly evaluate offers of assistance. Given potential practical difficulties, the ILC admits that this provision “encompass[es] a wide range of possible means of response, including a general publication of the affected State's decision regarding all offers of assistance”,Footnote 143 in light of practice where States have made generic declarations qualifying international assistance as “welcomed”.Footnote 144
Overall, the ILC has sought a complex balance on a sensitive issue that has recently become intertwined with the responsibility to protect doctrine. This doctrine was initially considered applicable also to disaster contexts,Footnote 145 but despite the support expressed by some scholars,Footnote 146 the Special Rapporteur immediately refused this hypothesis;Footnote 147 this position was later confirmed by the UN Secretary-General, who maintained that “to try to extend it to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus”.Footnote 148 Nevertheless, some issues have not been addressed by the ILC itself – for example, Article 20 of the ILC Draft Articles on State Responsibility, concerning authorities legitimized to provide consent, and its modalities.Footnote 149
A more complex issue is defining consequences in case of an arbitrary denial of consent. Indeed, as exemplified by IHL, even if a party to the conflict denies its consent in an arbitrary manner, such a decision would not give entities intended to provide humanitarian assistance a right to provide assistance in its territory regardless of lack of consent. Non-authorized operations, even if carried out with an arbitrary denial of consent by the relevant authorities, would indeed conflict with State sovereignty. In the recent Oxford Guidance, a series of solutions were proposed to cope with such stalemate situations, such as possible authorizations provided by UN Security Council resolutions, as obtained during the Syrian conflict,Footnote 150 or, in exceptional cases, recourse to circumstances precluding wrongfulness, such as state of necessity or countermeasures.Footnote 151 It is not surprising, therefore, that the commentary to the DAs avoided taking a stance on this sensitive issue with regard to disaster scenarios.
Finally, Article 14 on “Conditions on the Provision of External Assistance” is strictly linked to Article 13, emphasizing how the affected State can impose additional limitations on the activities of assisting actors provided those limitations are “in accordance with the present draft articles, applicable rules of international law and the national law of the affected State” and in line with “the identified needs of the persons affected by disasters and the quality of the assistance”. Indeed, the general consent to international relief activities under Article 13 does not translate into an automatic possibility of action for external actors. Failure to comply with conditions provided by Article 14 might justify a denial of consent under Article 13(2). The ILC therefore has preferred to provide in Article 14 a guidance on the characteristics and rationale of conditions which might be imposed by affected States regarding provision of external assistance.
Crucially, Article 14 balances different considerations: the possibility for the affected State to impose specific conditions is opposed by the requirement according to which these limitations should be in line with “humanitarian and legal principles already addressed elsewhere, notably, sovereignty, good faith and the humanitarian principles dealt with in draft article 6”.Footnote 152 This provision thus addresses one of the most common problems in contemporary international assistance, namely ensuring quality and effectiveness of international support.Footnote 153 As such, it draws inspiration from existing practice such as Article 12(4) of the Association of Southeast Asian Nations (ASEAN) Agreement on Disaster Management and Emergency Response, which expressly refers to the quality of assistance.Footnote 154 Although there are no universally binding technical standards in this area, humanitarian actors have developed a series of relevant documents intended to ensure that assistance meets minimal requirements and humanitarian principles, such as the Sphere Handbook, the 2014 Core Humanitarian Standards on Quality and Accountability, or, most recently, the World Health Organization (WHO) initiative on classification and minimum standards for emergency medical teams.Footnote 155
The “operational” provisions
The final set of provisions (Articles 15–17) is more directly related to the operational management of relief activities. Article 15 addresses capabilities potentially attributed by the affected State to assisting actors. Indeed, as amply testified to by research carried out by the IFRC,Footnote 156 ordinary legislation and regulations of the affected State may represent a significant obstacle jeopardizing the effective provision of international assistance. Article 15(1) provides that “[t]he affected State shall take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance”, making reference to issues such as “privileges and immunities, visa and entry requirements, work permits, and freedom of movement”. This list has an obvious non-exhaustive character in light of the multifaceted problems faced by external assisting actors, extending to areas such as recognition of professional qualifications and liability issues.Footnote 157
The ILC therefore refrained from developing autonomous and standardized solutions, preferring to adopt a bottom-up approach requiring States to adopt relevant legislative, administrative or executive measures. Unfortunately, few States have developed a coherent domestic system fit for facilitating international assistance, as evidenced by shortcomings emphasized in reports elaborated by the IFRC and National Societies comparing domestic frameworks with good practice standards suggested by the IDRL Guidelines.Footnote 158 As a result, although the ILC suggested that States should take into account relevant documents to modify their domestic framework, such as the IDRL Guidelines and the related 2013 Model Act,Footnote 159 difficulties inherent in the bottom-up approach are notable. As recently recognized by the IFRC, significant weaknesses persistFootnote 160 and the margin of appreciation left to States by the ILC is unlikely to result in a uniform approach towards such challenges.
Equally relevant is Article 16, according to which “[t]he affected State shall take the appropriate measures to ensure the protection of personnel and equipment and goods”. The purpose of this provision is twofold. On the one hand, by virtue of “sovereignty duties”, it imposes on the affected State a duty to protect international assisting actors, in light of security concerns linked to performance of their activities, the value of their assets, and fragile safety situations. On the other hand, this provision is an indirect protection for the affected population, as it facilitates the inflow of international assistance which would potentially be slowed down without such guarantees. As for actors that may represent a security threat, two hypotheses emphasize the different characteristics of the relevant obligations. The first case deals with wrongful actions attributable to organs of the affected State, where an obligation of result can be identified. Regarding harmful activities carried out by private individuals, a duty of due diligence conversely imposes a duty on the affected State to adopt appropriate measures to avoid prejudices towards relief personnel, for instance through the exchange of relevant information or the provision of specific protection. In this regard, the ILC made a proper reference to standards endorsed by members of the Inter-Agency Standing Committee in the 2013 Non-Binding Guidelines on the Use of Armed Escorts for Humanitarian Convoys,Footnote 161 in order to avoid an over-securitization of relief activities.
Finally, Article 17 underlines the temporal limits of relief activities: the affected State and assisting actors “may terminate external assistance at any time. Any such State or actor intending to terminate shall provide appropriate notification.” Article 17 also imposes an obligation for the affected State and assisting actors to consult each other “with respect to the termination of external assistance and the modalities of termination”. Regardless of the lack of coherent treaty practice making reference to this scenario, the ILC elaborated a provision which aimed both to favour a holistic approach, by imposing a clear standard in this area, and to balance the different perspectives of relevant actors. For the affected State, this provision is a further reaffirmation of its sovereignty, and since external actors do not have an obligation to provide assistance, Article 17 therefore simply reiterates their option to freely decide when to withdraw their services. As premature and uncoordinated disengagement might be detrimental to victims, the ILC introduced both the procedural obligation to provide notification that is “appropriate” in terms of its “form and timing, preferably early”,Footnote 162 and a duty of consultation, the rationale for which pursues the same goal as, and represents a further expression of, the principle of cooperation provided by Article 7.
The way forward
Against this background, States were requested in 2016 by UN General Assembly Resolution 71/141 to provide their comments on the proposal made by the ILC to adopt a treaty on the basis of the DAs. In this regard, both during the meeting of the General Assembly Sixth Committee recently devoted to this topic and in advance of it,Footnote 163 States have expressed mixed positions on the recommendation made by the ILC, which did not directly reflect their geopolitical interests or status as disaster-prone or donor States.
A relevant number of States have voiced their preference for a treaty in this area, and are ready to foster discussions in view of such a goal. This has been the case for El SalvadorFootnote 164 (speaking on behalf of the thirty-three member States of the Community of Latin American and Caribbean States, as supported by additional similar individual statements made by Argentina,Footnote 165 Brazil,Footnote 166 Colombia,Footnote 167 El Salvador,Footnote 168 HondurasFootnote 169 and PeruFootnote 170), IcelandFootnote 171 (on behalf of the five Nordic countries, which have declared themselves favourable to discussing the proposal made by the ILC), Italy,Footnote 172 the Philippines,Footnote 173 Portugal,Footnote 174 Qatar,Footnote 175 TogoFootnote 176 and Sri Lanka.Footnote 177 Other States, such as Japan and Singapore,Footnote 178 have expressed generally positive evaluations on the DAs, without however adopting a clear stance on the notion of a treaty. In other cases a more cautious approach was endorsed, either emphasizing the need to better assess the DAs in light of current practice, as expressed by Austria and Bangladesh,Footnote 179 or voicing uncertainties as to whether the time would be right for convening a diplomatic conference on this topic, as maintained by Iran.Footnote 180 Finally, some States, such as the Czech Republic,Footnote 181 RussiaFootnote 182 and the United States,Footnote 183 have opposed the recommendation to adopt a treaty. Still, several of the opposing States expressed appreciation for the large majority of provisions included in the DAs, suggesting that the text could act as a guideline for international cooperation efforts,Footnote 184 or maintained that “the draft articles could be seen as the focal reference point internationally with regard to disaster relief and management”.Footnote 185 In this regard, Switzerland suggested that the DAs should be translated into regional agreements and domestic legislation, though it cautioned on their possible application in complex emergencies.Footnote 186
In light of the stalemate created by the divergent attitudes presented by States, with several UN member States still having to express their views on the recommendation made by the ILC, the General Assembly has finally decided, through its Resolution 73/209, both to require further comments by States and to inscribe this item in its seventy-fifth session planned for 2020.Footnote 187 At this stage such a solution was probably opportune, permitting States and other actors involved in humanitarian activities to further reflect on the opportunities and challenges of developing the long-awaited flagship treaty on disaster prevention and response and take a final position on the proposal made by the ILC.
Concluding remarks
The protection of persons in disasters has represented a challenge for the ILC, given the dynamic and partly still embryonic character of the relevant regulatory framework and the need to reconcile the various perspectives of involved actors.
The current text of the DAs certainly has points of merit, as it aims to elaborate a coherent framework for a non-homogenous area of law in order to cover the main legal issues pertaining to the disaster cycle, including several contentious ones. It has allowed the provision of a general framework that is able to highlight the main challenges related to disasters, attracting attention to the legal complexities raised by such events with regard to both disaster risk reduction and post-disaster activities. Several points can be commended, such as the holistic attitude characterizing the law-making approach followed by the ILC, aimed at finding comprehensive solutions even with regard to elements not yet crystallized in coherent and consistent practice, and the complex balance maintained with regard to different perspectives of actors involved in disaster scenarios, namely the affected State, assisting actors and victims. On some issues, such as DRR or arbitrary denial of consent, the adopted solutions aim to favour progressive trends, still grounded on coherent legal foundations, while in other circumstances, for example concerning humanitarian principles, the text has established basic elements aimed at guiding the activities of relevant stakeholders.
At the same time, the text has some weaknesses, partly linked to its structure. The preference for the adoption of a short document, aimed at sketching out basic principles in this area, has finally resulted in a series of provisions able to represent a potential framework convention, without a specific focus towards detailed provisions. This situation is hardly suited to entirely solving the common regulatory challenges raised in relief activities. Still, the reinforcement of the “operational” side of the current project might be achieved in the subsequent diplomatic negotiation process, in light of the original proposal made by the ILC Secretariat for the 1946 Convention on the Privileges and Immunities of the United Nations,Footnote 188 characterized by its exhaustive provisions, as a reference model for the activities of the ILC on this topic.
For instance, potential uncertainties resulting from the “bottom-up” approach adopted in Article 15 concerning facilitation of external assistance, where States are requested to support assisting actors through measures to be adopted at the domestic level without imposing specific obligations on them in this regard, could be reduced through detailed provisions. Similarly, the development of technical annexes, to be periodically updated by a committee of experts, might allow for the creation of universal standards for quality of assistance, an issue which up until now has been limited to non-binding initiatives managed by relevant humanitarian professionals.Footnote 189 Such technical annexes might pursue multiple purposes, maintaining a balance between the diverging perspectives of involved actors.
On the one hand, technical annexes could facilitate the activities of assisting actors by ensuring predictable standards and therefore promoting easier access to affected States once they are able to satisfy such requirements. Several solutions could be proposed for such purposes – for example, there could be certification process managed under the auspices of the universal treaty, aimed at verifying the consistency of assisting actors’ activities according to a set of technical standards. Similarly, assisting actors, especially those formally unable to become parties to the future treaty, such as NGOs or components of the International Red Cross and Red Crescent Movement, could be granted the opportunity to provide unilateral acceptance to such technical requirements and the core features of the future treaty, including the humanitarian principles mentioned in Article 6, in light of similar experiences concerning Deeds of Commitment developed in the framework of IHLFootnote 190 or the abovementioned non-binding initiatives related to disaster scenarios. On the other hand, affected States might decide to attribute privileges to assisting actors, currently to be identified at the domestic level according to Article 15, primarily to those entities willing and able to comply with such minimal requirements. For the affected State, this solution might increase the quality of assistance for its own population and minimize the current phenomenon of inappropriate assistance, creating a mutual trade-off.
As mentioned, in 2020 the UN General Assembly will have another opportunity to evaluate the possibility of a universal treaty for the protection of persons in disasters on the basis of the DAs. For “international lawyers … the Holy Grail would be the adoption and widespread ratification of a flagship global treaty”,Footnote 191 and the capacity of the DAs to represent the missing overarching convention capable of effectively facilitating relief operations would finally be tested by States. It is hard to predict the final outcome. Some elements militate against such a possibility, such as the current lack of appeals for multilateral treaties and the criticisms made by some States regarding the progressive character of some provisions that go beyond the codification of international law in this area. At the same time, the increasing frequency of disasters and their magnitude, accompanied by a rising awareness of the relevance of the legal component in DRR and relief and recovery activities, as well as the balanced character of the text adopted by the ILC, could be the very elements pressing States to finally adopt a universal treaty in this area. The DAs might act as a valid and solid starting point of reference for further negotiations aimed at strengthening their contents. Even if a treaty could not finally be achieved on the basis of activities performed by the ILC, the DAs and their commentaries will nonetheless act as a framework reference document capable of influencing future legal and political debates concerning humanitarian action in the event of disasters.
Annex 1: Draft Articles on the Protection of Persons in the Event of Disasters
Adopted by the International Law Commission at its sixty-eighth session, in 2016, and submitted to the General Assembly as a part of the Commission's report covering the work of that session (A/71/10), para. 48. The report will appear in Yearbook of the International Law Commission, 2016, vol. II, Part Two.
Copyright © United Nations 2016
Protection of persons in the event of disasters
Bearing in mind Article 13, paragraph 1 (a), of the Charter of the United Nations, which provides that the General Assembly shall initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification,
Considering the frequency and severity of natural and human-made disasters and their short-term and long-term damaging impact,
Fully aware of the essential needs of persons affected by disasters, and conscious that the rights of those persons must be respected in such circumstances,
Mindful of the fundamental value of solidarity in international relations and the importance of strengthening international cooperation in respect of all phases of a disaster,
Stressing the principle of the sovereignty of States and, consequently, reaffirming the primary role of the State affected by a disaster in providing disaster relief assistance,
Article 1
Scope
The present draft articles apply to the protection of persons in the event of disasters.
Article 2
Purpose
The purpose of the present draft articles is to facilitate the adequate and effective response to disasters, and reduction of the risk of disasters, so as to meet the essential needs of the persons concerned, with full respect for their rights.
Article 3
Use of terms
For the purposes of the present draft articles:
(a) “disaster” means a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society;
(b) “affected State” means a State in whose territory, or in territory under whose jurisdiction or control, a disaster takes place;
(c) “assisting State” means a State providing assistance to an affected State with its consent;
(d) “other assisting actor” means a competent intergovernmental organization, or a relevant non-governmental organization or entity, providing assistance to an affected State with its consent;
(e) “external assistance” means relief personnel, equipment and goods, and services provided to an affected State by an assisting State or other assisting actor for disaster relief assistance;
(f) “relief personnel” means civilian or military personnel sent by an assisting State or other assisting actor for the purpose of providing disaster relief assistance;
(g) “equipment and goods” means supplies, tools, machines, specially trained animals, foodstuffs, drinking water, medical supplies, means of shelter, clothing, bedding, vehicles, telecommunications equipment, and other objects for disaster relief assistance.
Article 4
Human dignity
The inherent dignity of the human person shall be respected and protected in the event of disasters.
Article 5
Human rights
Persons affected by disasters are entitled to the respect for and protection of their human rights in accordance with international law.
Article 6
Humanitarian principles
Response to disasters shall take place in accordance with the principles of humanity, neutrality and impartiality, and on the basis of non-discrimination, while taking into account the needs of the particularly vulnerable.
Article 7
Duty to cooperate
In the application of the present draft articles, States shall, as appropriate, cooperate among themselves, with the United Nations, with the components of the Red Cross and Red Crescent Movement, and with other assisting actors.
Article 8
Forms of cooperation in the response to disasters
Cooperation in the response to disasters includes humanitarian assistance, coordination of international relief actions and communications, and making available relief personnel, equipment and goods, and scientific, medical and technical resources.
Article 9
Reduction of the risk of disasters
1. Each State shall reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for disasters.
2. Disaster risk reduction measures include the conduct of risk assessments, the collection and dissemination of risk and past loss information, and the installation and operation of early warning systems.
Article 10
Role of the affected State
1. The affected State has the duty to ensure the protection of persons and provision of disaster relief assistance in its territory, or in territory under its jurisdiction or control.
2. The affected State has the primary role in the direction, control, coordination and supervision of such relief assistance.
Article 11
Duty of the affected State to seek external assistance
To the extent that a disaster manifestly exceeds its national response capacity, the affected State has the duty to seek assistance from, as appropriate, other States, the United Nations, and other potential assisting actors.
Article 12
Offers of external assistance
1. In the event of disasters, States, the United Nations, and other potential assisting actors may offer assistance to the affected State.
2. When external assistance is sought by an affected State by means of a request addressed to another State, the United Nations, or other potential assisting actor, the addressee shall expeditiously give due consideration to the request and inform the affected State of its reply.
Article 13
Consent of the affected State to external assistance
1. The provision of external assistance requires the consent of the affected State.
2. Consent to external assistance shall not be withheld arbitrarily.
3. When an offer of external assistance is made in accordance with the present draft articles, the affected State shall, whenever possible, make known its decision regarding the offer in a timely manner.
Article 14
Conditions on the provision of external assistance
The affected State may place conditions on the provision of external assistance. Such conditions shall be in accordance with the present draft articles, applicable rules of international law and the national law of the affected State. Conditions shall take into account the identified needs of the persons affected by disasters and the quality of the assistance. When formulating conditions, the affected State shall indicate the scope and type of assistance sought.
Article 15
Facilitation of external assistance
1. The affected State shall take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance, in particular regarding:
(a) relief personnel, in fields such as privileges and immunities, visa and entry requirements, work permits, and freedom of movement; and
(b) equipment and goods, in fields such as customs requirements and tariffs, taxation, transport, and the disposal thereof.
2. The affected State shall ensure that its relevant legislation and regulations are readily accessible, to facilitate compliance with national law.
Article 16
Protection of relief personnel, equipment and goods
The affected State shall take the appropriate measures to ensure the protection of relief personnel and of equipment and goods present in its territory, or in territory under its jurisdiction or control, for the purpose of providing external assistance.
Article 17
Termination of external assistance
The affected State, the assisting State, the United Nations, or other assisting actor may terminate external assistance at any time. Any such State or actor intending to terminate shall provide appropriate notification. The affected State and, as appropriate, the assisting State, the United Nations, or other assisting actor shall consult with respect to the termination of external assistance and the modalities of termination.
Article 18
Relationship to other rules of international law
1. The present draft articles are without prejudice to other applicable rules of international law.
2. The present draft articles do not apply to the extent that the response to a disaster is governed by the rules of international humanitarian law.
