3. The work of the ILC on the “Protection of Persons in the event of disasters”:
3.1 Content of the Draft Articles as adopted by the ILC on second reading
The Draft Articles endeavour to provide a legal systematization of the main issues and “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” (DA 2). In a nutshell, this provision encompasses some of the main topics addressed and challenges faced in the law-making process due to diverging perspectives.
First of all, the Commission had to tackle the hard task to frame the field of analysis and, thus, to identify the legal definition of the term ‘disaster’121. Initially,
it was proposed to limit the scope ratione materiae to natural disasters or to natural components of broader emergencies, since perceived as more immediate need122. However, it was soon recognised that to establish a clear-cut distinction
between natural and man-made catastrophes was both practically and logically difficult, given the lack of a generally accepted definition of the term ‘disaster’ in international law. Therefore, in his Preliminary Report, Mr. Valencia-Ospina proposed a broader approach by observing that, since it is not always possible to maintain a clear delineation among causal factors, it was inappropriate to distinguish among various types of disasters because of their different origins. Besides, he stressed that “the need for protection can be said to be equally strong in all disaster situations”123 and, as a consequence, it was approved to widen the
scope of the analysis, by considering all different kinds of disasters, including ‘complex emergencies’, with the exception of armed conflicts per se124. By taking
into account these elements, the definition of the term ‘disaster’ adopted by the ILC reads as follows: “a calamitous event or series of events resulting in
121 See, G. Bartolini, “La definizione di disastro nel progetto di articoli della Commissione del diritto internazionale”, in Rivista di Diritto Internazionale, Vol. 98, 2015, p. 156.
122 See, UN Doc. A/61/10, cit., Annex C, para. 2. 123 See, UN Doc. A/CN.4/598 para. 49.
124 Indeed, Article 18 of the Draft Articles denies any application of the dispositions in question in case of armed conflict by laying down that “the present draft articles do not apply to situations to which the rules of international humanitarian law are applicable”. For comments, see G. Bartolini, “Il progetto di articoli della Commissione del diritto internazionale sulla « Protection of Persons in the Event of Disasters »”, in Rivista di Diritto Internazionale, Vol. C, Fasc. 3, pp. 667-719.
49 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”125.
At first sight, while encompassing only particularly significant events, this definition welcomes a very broad approach, by indicating separated but substantially all-embracing types of possible adverse effects, including environmental damage. The reference to a ‘calamitous’ event has then served to establish a threshold, by referring to the nature of the event, whereby only extreme events are covered, as embodied in the Resolution on Humanitarian Assistance adopted by the Institute of International Law. However, no limitation is included regarding the origin of the event, i.e. whether they are natural or man-made, thus recognizing the fact that disasters are often caused by a complex set of causes that can include both natural elements and contributions of human activities. Moreover, nothing is said about the necessity that the event has a cross-border character for the purpose of the Draft Articles. The Commission, therefore, wanted to avoid the limitations imposed by some treaties applicable only in cases of disasters due to human activities such as technological ones, or, on the contrary, just in case of natural events, such as the South Asian Association for Regional Cooperation (SAARC) Treaty126. It is then relevant to note that the ILC
comprises also those calamitous events which do not cause necessarily human suffering, but also just destruction or loss of goods, property and environmental damage. Indeed, also a strict environmental disaster requires the protection of individuals because, as stated by the International Court of Justice, “the environment is not an abstraction, but represents the living space, quality of life and the same health of humans, including unborn generations”127. Material and
environmental losses are thus inextricably linked to human life and health so that protection of individuals is justified following the occurrence of such events.
125 See, UN Doc. A/71/10, Draft Article 3.
126 Moreover, during the 2013 Tokyo session the Institut de droit international decided to establish a new commission on “Natural Disasters and International Law” which still lacks a structure and a Rapporteur. See, http://www.idi-iil.org/FR/navig_commissions.html.
127 See, International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, para. 29.
50
Ratione temporis, the scope of the DAs covers not only disaster response, but also the pre- and the post-disaster phases thus paying attention to the legal dimension of the overall disaster-cycle as enshrined by the 2015 Sendai Framework for Disaster Risk Reduction (DRR) endorsed by the UN General Assembly128. It is
not a coincidence that DA 9 identifies the obligation for each State to “reduce the risk of disasters by taking appropriate measures”, and to act primarily at the domestic level “to prevent, mitigate, and prepare for disasters”. This provision represents therefore a cornerstone of the text, rendering it capable of complementing non-binding approaches pursued at the international level such as the very Sendai Framework.
Such an extended temporal perspective is also visible in the scope ratione loci of the DAs which is not limited to the activities performed in the areas where the disaster occurs, but also covers those within assisting States and transit States, and more in general the international community as a whole when DDR measures must be implemented. Finally, concerning the scope ratione personae, the DAs do not limit their application to States, but do take into account also all the different actors that may be involved in the whole disaster-cycle management, such as intergovernmental organizations, as well as NGOs and other non-State entities which enjoy specific competences in providing relief and assistance129.
According to the Commentary provided by the ILC, the legal core of the Draft Articles is built on a strong human rights-based approach which frames and interprets the relationship between rights and obligations according to a vertical and horizontal perspective: rights and obligations of States towards persons in need of protection on the one hand, and rights and obligations among States on the other hand.
In dealing with the vertical approach, the ILC has intended to establish a general framework of reference which embodied the increasing positive tension towards
128 See, Sendai Framework for Disaster Risk Reduction 2015-2030, A/CONF.224/CRP.1, 18 March 2015.
129 In this regard it is noteworthy the outstanding role played by the EU which, from its very first comments, insisted on and obtained the explicit inclusion of the expression ‘other assisting actors’ to identify those international bodies offering assistance in the aftermath of a disaster alongside States. See, International Law Commission, Sixth report of the Special Rapporteur on the
51 the need to respect and protect some fundamental human rights. Accordingly, DA 4130 addresses the principle of human dignity as the core principle that underpins
international human rights law. In the context of the protection of persons in the event of disasters, human dignity is situated as a guiding principle both for any action to be taken in the context of the provision of relief, and in the ongoing evolution of laws addressing disaster response. Its complexity is then reflected in the combined use of the terms ‘respect and protect’ which connote both the negative obligation to refrain from injuring the inherent dignity of the human person and the positive obligation to take action to protect human dignity.
The intimate connection between human rights and the principle of human dignity resides in DA 5131 which seeks to reflect the broad entitlement to human rights
protection held by those persons affected by disasters. Moreover, in the Commentary to the Draft Articles it is underlined that the general reference to ‘human rights’ indicates the intention to refer to the broad field of human rights obligations, without seeking to specify, add to, or qualify those obligations. This is also confirmed by the inclusion of the expression “in accordance with international law”, that includes those provisions set in international treaties and reflected in customary international law, as well as assertions of best practices and soft law instruments concerning the protection of human rights132. Last but not
least, DA 6133 conveys the rationale underpinning the Draft Articles, i.e. the
protection of persons during humanitarian assistance operations in the event of disasters by extending the key humanitarian principles applicable to humanitarian interventions, that are the principles of humanity, neutrality and impartiality, also to disaster situations. Besides these cardinal principles, the Commission has also included the principle of non-discrimination on the grounds of ethnic origin, sex,
130 See, Draft Article 4: “The inherent dignity of the human person shall be respected and protected in the event of disasters”.
131 See, Draft Article 5: “Persons affected by disasters are entitled to the respect for and protection of their human rights in accordance with international law”.
132 See, UN Doc. A/71/10, cit., p. 31.
133 See, Draft Article 6: “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”.
52 nationality, political opinions, race, and religion134 as already stated by the
Institute of International Law in its 2003 resolution.
In order to ensure adequate protection to the victims of a disaster according to the above-mentioned requirements, the ILC has thus introduced some specific provisions on States’ duties by making international solidarity and cooperation functional elements of the whole legal architecture. As proof of this, the first and foremost duty on States enshrined in the work of the ILC is that to cooperate (DA 7)135. Even though the identification of a specific international obligation in this
area has not been welcomed by some States that have challenged the very existence of a duty to cooperate under international law, the ILC did not take into account their concerns. In fact, as made evident in its Commentary, cooperation, as well-established principle of international law, is a conditio sine qua non to successful relief actions because of the multiple actors involved in international disaster relief efforts, usually including several States as well as potentially numerous relief organizations136. Draft Article 8137 seeks then to clarify the
various forms which cooperation among assisting actors may take in the context of the protection of persons in the event of disasters by providing a non- exhaustive list of illustrative instruments. Clearly, the forms of cooperation to be deployed depend on a range of factors, including, inter alia, the nature of the disaster, the needs of the affected persons, and the capacities of the affected State and other assisting actors involved.
134 It is worth to underline that, according to the ILC, this list is not exhaustive as can include other grounds of discrimination, as affirmed inter alia in the 1949 Geneva Conventions, common Art. 3, para. 1; Universal Declaration of Human Rights, General Assembly resolution 217 (III) of 10 December 1948, Art. 2; International Covenant on Civil and Political Rights, Art. 2, para. 1; International Covenant on Economic, Social and Cultural Rights, Art. 2, para. 2. See, UN Doc. A/71/10, cit., p. 34.
135 See, Draft Article 7: “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.”.
136 See, UN Doc. A/71/10, cit., p. 36.
137 See, Draft Article 8: “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”.
53 Such a horizontal perspective, which inextricably links all the subjects involved in disaster response, is evident also in the following provisions which, according to a ‘check and balances’ structure138, establish duties both on the affected State and
on the assisting actors.
In particular, DA 10139, para. 1, reflects the obligation of an affected State to
protect persons and to provide disaster relief and assistance in accordance with international law and, in para. 2, entrusts the affected State with the primary role in disaster relief assistance. But, for the purposes of the present work, the most relevant provision is contained in DA 11140 which prescribes on the affected State
a clear duty to seek for assistance when it is unable to cope with the consequences of an overwhelming disaster. In order to rebalance this strong obligation, DA 13141 introduces the crucial requirement of consent of the affected State to
external assistance thereby creating a qualified ‘consent regime’ in the field of disaster relief operations. However, it also stipulates that consent to external assistance shall not be withheld arbitrarily thus trying to overcome the general unclear position of international law in this issue. Therefore, as specified in the ILC Commentary to the Draft Articles, an eventual withholding of international assistance may be justified when it is exercised in good faith, i.e. whether the affected State is capable and willing to provide an adequate and effective response to a disaster on the basis of its own resources, when the affected State has
138 See, G. Bartolini, “The Draft Articles on “The Protection of Persons in the Event of Disasters”: Towards a Flagship Treaty?”, in EJIL Talk, 2 December 2016, available at https://www.ejiltalk.org/the-draft-articles-on-the-protection-of-persons-in-the-event-of-disasters- towards-a-flagship-treaty/.
139 See, Draft Article 10: “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.”.
140 See, Draft Article 11: “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”:
141 See, Draft Article 13: “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.”
54 accepted appropriate and sufficient assistance from elsewhere or, lastly, in case of no bona fide offers142.
As a complement to the provisions concerning rights and duties of the affected State, the Draft Articles try also to clarify the position of the assisting actors. In particular, DA 12143 introduces the opportunity for States, the United Nations, and
other potential assisting actors to offer assistance and, whenever a request of help is made by the affected State, the obligation to give due consideration to the request and inform the national authorities about their decision. As for the rules dealing with ‘operational provisions’ regarding international assistance, the subsequent DAs provide general points of reference. Indeed, they combine the interests of affected States, with regard to issues such as the quality of assistance144 with those of the assisting actors, whose activities should be
facilitated by the very affected State145, as well as in terms of the protection of
relief personnel, equipment and goods146. Finally, DA 17147 explores the
142 Moreover, Draft Article 15 addresses the establishment of conditions by affected States on the provision of external assistance on their territory. It affirms the right of affected States to place conditions on such assistance, in accordance with the present draft articles and applicable rules of international and national law. The draft article indicates how such conditions are to be determined and requires the affected State, when formulating conditions, to indicate the scope and type of assistance sought. See, UN Doc. A/71/10, cit., p. 61.
143 See, Draft Article 12: “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.”
144 See, Draft Article 14: “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.” 145 See, Draft Article 15: “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.”
146 See, Draft Article 16: “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.”
55 termination of assistance, by improving the content of the provision adopted on the first reading in order to favour the appropriate management of this critical phase, which might negatively affect the victims of disasters.