4 December 2013

The ILC Work on the Protection of Persons in the Event of Disasters

In the aftermath of a disaster, affected States need to address its material consequences. For this purpose, aid is normally forthcoming from other States, international organizations and Non-Governmental Organizations. In practice, however, this foreign aid is not always accepted. And even if external assistance is agreed to, as the Federation of the Red Cross and Red Crescent Societies (IFRC) put it in 2000: ‘There is no definitive, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance.  No systematic attempt has been made to put together the disparate threads of existing law, to formalize customary law or to expand and develop the law in new ways.’

In this ‘yawning gap’, as the IFRC labeled it, stepped the International Law Commission (ILC or Commision) in 2006 when, in fulfillment of its Charter and Statute mandate and on the proposal of the United Nations (UN) Secretariat it included the topic ‘Protection of persons in the event of disasters’ in its program of work. According to the Secretariat ‘the objective of the proposal [was] the elaboration of a set of provisions which would serve as a legal framework for the conduct of international disaster relief activities; clarifying the core legal principles and concepts and thereby creating a legal “space” in which such disaster relief work could take place on a secure footing’.

Unlike other topics in the ILC’s agenda, the ‘Protection of persons in the event of disasters’ is a truly novel one, on which legally relevant practice is particularly scarce. Apart from a handful of multilateral, mainly regional, agreements and a much larger number of bilateral treaties, mostly on mutual assistance, the bulk of the available material is comprised of soft-law, non-binding instruments elaborated at the intergovernmental level and also by private institutions and entities (e.g. UN General Assembly Resolution 46/182, see here).

The Special Rapporteur has submitted between 2008 and 2013 six consecutive reports for the ILC’s consideration, with draft proposals on the basis of which it has been possible within the Commission to adopt 18 provisional draft Articles. The First Preliminary report in 2008 traced the evolution of the protection of persons in the event of disasters, identifying the sources of the law on the topic, as well as previous efforts towards the development and codification of the law in the area. It also presented in broad outline the various aspects of the general scope with a view to identifying the mail legal questions to be covered and advancing some conclusions. These included the Special Rapporteur’s belief that ‘to achieve complete coverage, work on the topic should extend to all three phases of a disaster situation (pre-disaster, disaster proper and post-disaster), but it would appear justified to give particular attention to aspects relating to prevention and mitigation of a disaster as well as to provision of assistance in its immediate wake.’

The Special Rapporteur singled out the three immediate legal sources of present-day international disaster protection and assistance: international humanitarian law, international human rights law and international law on refugees and internally displaced persons, to which he has systematically reverted in each of his subsequent reports.

The Second report in 2009 treated the scope of the topic ratione materiae, ratione personae and ratione temporis and issues relating to the definition of ‘disaster’ for purposes of the topic, and undertook a consideration of the basic duty to cooperate. The report contained proposals for 3 draft Articles which the ILC expanded to five.

The scope of the draft Articles (Article 1), the definition of disaster (Article 3) and the duty to cooperate (Article 5) are all-encompassing formulations. The scope covers the pre-disaster and disaster proper phases of a disaster situation, even though work on the first phase was deferred to a subsequent stage, it having been dealt with at this year’s session. The definition of disaster is not limited to natural disasters but extends to other kinds of disaster, in particular those attributable to human action. Article 4 makes clear that the draft Articles do not apply to situations to which the rules of international humanitarian law are applicable, in other words, to armed conflict. Article 5 establishes in general terms the duty to cooperate, which is central to the whole project. Article 5 has been supplemented by Articles 5 bis and 5 ter adopted, respectively, at the 2012 and 2013 sessions of the ILC, on the basis of proposals made in the Fifth and Sixth reports. Article 5 bis seeks to clarify the various forms which cooperation between affected States, assisting States and other assisting actors may take in the context of the protection of persons in the event of disasters. Article 5 ter extends the duty to cooperate to the pre-disaster phase.

The Second report devoted one of its four chapters to solidarity and cooperation. Seen in this light, the report traced the concepts to the UN Charter and the 1970 Friendly Relations Declaration and to instruments adopted in fields as diverse as the law of economic development, environmental law, human rights law and international humanitarian law. Nevertheless, within the Commission, doubts were expressed by some members whether solidarity is a principle of international law.

Cooperation should not be interpreted as diminishing the prerogatives of a sovereign State within the limits of international law. On the contrary, the principle underlines respect for the sovereignty of States and its corollary, non-intervention, and the primary role of State authorities in the initiation, organization, coordination and implementation of the measures aimed at the protection of persons in the event of disasters. Such protection will often involve the adoption of political, regulatory, administrative and judicial measures by the affected State, including the deployment of its armed forces within its own territory, which are expressions of the ‘right of every sovereign State to conduct its affairs without outside interference’, as the International Court of Justice put it in its 1986 judgment in the Case concerning Military and Paramilitary Activities in and against Nicaragua.

At the same time, as the Special Rapporteur emphasized in his Third report of 2010, ‘The correlating principles of sovereignty and non-intervention presuppose a given domestic sphere, or a domain réservé, over which a State may exercise its exclusive authority. This sovereign authority remains central to the concept of Statehood, but it is by no means absolute. When it comes to the life, health and bodily integrity of the individual person, areas of law such as international minimum standards, humanitarian law and human rights law demonstrate that principles such as sovereignty and non-intervention constitute a starting point for the analysis, not the conclusion.’

The Special Rapporteur has been consistent from the start in maintaining the inapplicability of the concept of ‘Responsibility to Protect’ to the work undertaken by the ILC on Protection of Persons in the Event of Disasters. Already in his Preliminary report he drew attention to the Secretariat’s observation, when proposing the inclusion of the topic in the ILC’s agenda, that the protection of persons might be ‘located within contemporary reflection on an emerging principle entailing the responsibility to protect’. However, the Special Rapporteur’s personal opinion, expressed also in his Preliminary report, was that the appropriateness of extending the concept of responsibility to protect and its relevance to the present topic required careful consideration. The Commission subsequently endorsed the Secretary-General’s stand according to which ‘the responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. 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 and stretch the concept beyond recognition or operational utility’.

By virtue of the sovereignty of the affected State, it is the primary duty of its authorities to take care of the victims of a natural disaster and similar emergencies occurring in its territory. Cooperation complements that duty. The nature of the duty to cooperate may vary depending on the actor and the context in which assistance is being sought and offered. But as the Special Rapporteur concluded in his Fifth report in 2012 ‘The duty to cooperate in relief matters does not currently include a legal duty for States to provide assistance when requested by an affected State.’ The Special Rapporteur arrived at his conclusion after surveying international practice as evidenced in international treaties which shows that, although underpinned by the principles of solidarity and cooperation, the provision of assistance from one State to another upon the latter’s request is premised on the voluntary character of the action of the assisting State. That conclusion was confirmed by the overwhelming majority of States that submitted comments in the Sixth Committee in 2011 in response to the ILC’s inquiry.

The Third report examined the principles that inspire the protection of persons in the event of disasters, in its aspect related to persons in need of protection and the question of the responsibility of the affected State. The report contained proposals for three further draft Articles which led to the adoption by the ILC, at its 2011 session, of four additional draft Articles, together with commentaries, on Humanitarian Principles in Disaster Response (Article 6); human dignity (Article 7); Human Rights (Article 8); and the Role of the Affected State (Article 9). It must be pointed out that Article 7 enshrines for the first time as an autonomous provision in the body of what is intended to become an international instrument, the fundamental right to the respect and protection of the inherent dignity of the human person, until now only referred to in the preambles of such instruments.

Also at its 2011 session, the ILC adopted on the basis of proposals made in the Fourth report two more draft Articles with commentaries on the duty of the affected State to seek assistance (Article 10) and the consent of the affected State to external assistance (Article 11).

The Fourth report in 2011 had proposed a draft Article 12 on the right to offer assistance. And the Fifth report the following year, in addition to a draft Article A, renumbered 5 bis as already mentioned, proposed two other Articles dealing with the Conditions on the Provision of Assistance (Article 13) and the Termination of Assistance (Article 14).

On the basis of those proposals, the ILC in 2012 formulated provisions on Offers of Assistance (Article 12), Conditions on the Provision of External Assistance (Article 13), Facilitation of External Assistance (Article 14) and Termination of External Assistance (Article 15). Article 12 recognizes the right of different entities to make offers of assistance in the aftermath of a disaster. Article 13 expresses the right of affected States to place conditions on assistance. Article 14 embodies the obligation of the affected State to take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance and to ensure that its relevant legislation and regulations are readily available to assisting actors. Article 15 preserves the right of any actor to seek to terminate the assistance being provided in consultation with the other actors.

At its session this year, the ILC considered the Sixth report, devoted to prevention at the pre-disaster phase, in its concrete manifestation of Disaster Risk Reduction. On the basis of proposals made in the report the ILC adopted, apart from Article 5 ter, also Article 16 on the Duty to Reduce the Risk of Disasters.

As the ILC work is carried out pari pasu taking account of the views of States, draft Articles 1 to 16 and 5 bis and 5 ter have been brought to the attention of successive sessions of the General Assembly in the ILC’s customary annual reports. They were the subject of discussion by the delegations of Member States and Observers in the Sixth (Legal) Committee of the Assembly. As it was the case in the ILC, the Sixth Committee debate centered on the recurrent theme, already identified in the Preliminary report, of the underlying tension between the fundamental principles of sovereignty and non-intervention and the protection of persons. In this connection, special emphasis must be placed on the articulation between Articles 9 and 11, paragraph 1. Article 9 reflects in paragraph 1 the obligation of an affected State to protect persons and provide disaster relief in accordance with international law as stemming from its sovereignty. Paragraph 2 of Article 9 affirms the primary role held by an affected State in the response to a disaster upon its territory. The ILC preferred to use, instead of the term ‘responsibility’, the term ‘role’, borrowed from the Annex to General Assembly Resolution 46/182, in a provision which is furthermore in line with the ‘margin of appreciation’ principle adopted in the European Court of Human Rights, which holds that the ‘national authorities enjoy a wide margin of appreciation under Article 15 [of the European Convention on Human Rights] in assessing whether the life of their nation is threatened by a public emergency.’ Under paragraph 1 of Article 11 as already read ‘The provision of external assistance requires the consent of the affected State’.

It must be stressed that rather than an infringement, Articles 10, 11 and 12 as adopted constitute a reaffirmation of the fundamental international law principles of sovereignty and its corollary non-intervention, already explicitly enshrined in Article 9 on the role of the affected State. Those three provisions are founded on the unambiguous recognition that ‘the provision of external assistance requires the consent of the affected State.’ The right of non affected States is merely to ‘offer’ not to ‘provide’ assistance, and the affected State remains completely free to accept in whole or in part, subject or not to conditions it itself imposes, any offer of assistance from States and non-States actors, whether made unilaterally or in answer to an appeal by that affected State, when seeking assistance in situations in which a disaster exceeded its national response capacity. A duty to ‘seek’, unlike a duty to ‘request’ does not imply the existence of a consent given in advance. Moreover, the affected State retains the right to determine by itself alone whether a particular disaster is beyond its national response capacity or otherwise, in line with the principle of sovereignty, because it is in the best position to rationally and reasonably decide on its capabilities in responding to a disaster.

Despite the divergent view held by some delegations, it has been generally considered in the Sixth Committee that the provisions commented upon maintain the delicate equilibrium that the ILC has so successfully achieved in the elaboration of its Articles.

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