Abstract
This chapter is focused on the works of the International Law Commission (ILC) on the topic ‘Protection of persons in the event of disasters’ and it aims at presenting and critically evaluating what the Commission has done so far. After a brief introduction, the analysis will concentrate on the Special Rapporteur’s rights-based approach to the topic, and proceed by assessing its pros and cons at both the theoretical and practical levels. Specific attention will be devoted to the key aspects of the ILC’s study: the primary responsibility of the affected State, the rules and principles that regulate the delivery of humanitarian relief, and the (ambiguous) role assigned to the international community.
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Notes
- 1.
A case in point is the Tampere Convention on the provision of telecommunication resources for disaster mitigation and relief operations. See Chap. 1 by de Guttry in this volume.
- 2.
Its institution dates back to 1919; its name at the time was the League of Red Cross Societies.
- 3.
The text of the ICRC's Guidelines is available at: http://www.ifrc.org/global/publications/idrl/resources/guidelines.asp. Accessed on February 15, 2012.
- 4.
Strengthening of the coordination of emergency humanitarian assistance of the United Nations, UN Doc. A/RES/63/139, 5 March 2009; International cooperation on humanitarian assistance in the field of natural disasters, from relief to development, UN Doc. A/RES/63/141, 10 March 2009; Strengthening emergency relief, rehabilitation, reconstruction and prevention in the aftermath of the Indian Ocean tsunami disaster, UN Doc. A/RES/63/137, 3 March 2009. See also the following resolutions adopted by the Economic and Social Council: Strengthening of the coordination of emergency humanitarian assistance of the United Nations, E/RES/2008/36, 25 July 2008; Strengthening of the coordination of emergency humanitarian assistance of the United Nations, E/RES/2009/3, 22 July 2009.
- 5.
Protection of persons in the event of disasters: Memorandum by the Secretariat, UN Doc. A/CN.4/590, 11 December 2007, para 6.
- 6.
Within the UN context, several attempts of codification had already been made during the 1970s and 1980s. In particular, in 1984 the Office of the UNDRO submitted a ‘Draft Convention on Expediting the Delivery of Emergency Assistance’ (UN Doc. A/39/267/Add.2, 18 June 1984), whose overall objective was to smooth the technical barriers of relief operations. The initiative received some support by governments, but in the end the Council never took action on it. In fact, the view prevailed that times were not yet ripe for such an enterprise (see Bettati 1991, 653).
- 7.
Report of the International Law Commission on the work of its fifty-eighth session (1 May to 9 June and 3 July to 11 August 2006) UN Doc. A/61/10, Annex C para 1.
- 8.
The Secretariat released its Memorandum on the topic on 11 December 2007 (cf. UN Doc. A/CN.4/590).
- 9.
Benton Heath 2011, 424.
- 10.
See the statements made by Benin (A/C.6/62/SR.18 para 47), Egypt (A/C.6/62/SR.18 para 71), Guatemala (A/C.6/62/SR.19 para 12), United Kingdom of Great Britain and Northern Ireland (A/C.6/62/SR.19 para 42), Sri Lanka (A/C.6/62/SR.19 para 55), India (A/C.6/62/SR.19 para 107), Poland (A/C.6/62/SR.20 para 1), United States of America (A/C.6/62/SR.20 para 23), Hungary (A/C.6/62/SR.21 para 7), Greece (A/C.6/62/SR.21 para 53), Romania (A/C.6/62/SR.21 para 78), Israel (A/C.6/62/SR.21 para 99), Kenya (A/C.6/62/SR.21 para 112), Sierra Leone (A/C.6/62/SR.24 para 100) and New Zealand (A/C.6/62/SR.25 para 19).
- 11.
A/C.6/62/SR.19, para 77.
- 12.
UN Doc. A/61/10, Annex C para 2. In a similar vein, the Secretariat’s Memorandum acknowledged that ‘[w]hile the bulk of the study pertains to disasters emanating from natural phenomena, few of the legal instruments and texts cited maintain a clear distinction between natural and man-made disasters’ (UN Doc. A/CN.4/590 para 8).
- 13.
Preliminary report on the protection of persons in the event of disasters, 5 May 2008, UN Doc. A/CN.4/598 para 47. For an extensive survey of the state of the art on the issue see Chap. 1 by de Guttry in this volume.
- 14.
UN Doc. A/CN.4/598 para 49.
- 15.
Cf. draft Article 3.
- 16.
Report of the International Law Commission on the work of its sixty-second session (3 May to 4 June and 5 July to 6 August 2010), UN Doc. A/65/10, 11.
- 17.
In fact, the Secretary-General in his 2009 report on implementing the responsibility to protect clarified that the concept is not applicable to calamities such as natural disasters (Implementing the responsibility to protect: report of the Secretary-General, 12 January 2009, UN Doc. A/63/677 para 10 (b)). But see Chap. 10 by Costas Trascasas in this volume, para 10.4.1–2.
- 18.
The discussion on the opportunity to apply the concept of ‘responsibility to protect’ to natural disasters was launched after the Nargis typhoon which devastated Myanmar in 2008.
- 19.
UN Doc. A/CN.4/598 para 264.
- 20.
The need to avoid duplications was highlighted, inter alia, by the Dutch representative (see International Law Commission: Legal Adviser Dr. Liesbeth Lijnzaad addresses the Sixth Committee (Part III) 31 October 2008, available at http://www.netherlandsmission.org/article.asp?articleref=AR00000476EN&categoryvalue=statements&subcategoryvalue=). Accessed on February 26 2012.
- 21.
UN Doc. A/CN.4/598, para 51.
- 22.
UN Doc. A/CN.4/598, para 218. See also the Secretariat’s Memorandum, wherein it is affirmed that ‘[e]xisting international human rights obligations lie at the core of the content of protection in the context of disasters.’ (UN Doc. A/CN.4/590, 3).
- 23.
Report of the International Law Commission on the work of its sixtieth session (5 May to 6 June and 7 July to 8 August 2008), UN Doc. A/63/10 paras 227–229.
- 24.
Office of the High Commissioner on Human Rights 2006.
- 25.
Several United Nations agencies have developed a ‘Common Understanding’ of the human rights-based approach to programming (United Nations Development Group, UN Statement of Common Understanding on Human Rights-Based Approaches to Development Cooperation and Programming, May 2003). Among the NGOs, BRAC, Oxfam, Save the Children Alliance, and World Vision are the leaders in the rights-based approach to development.
- 26.
Gready and Ensor 2005, 18.
- 27.
The systematic integration of human rights standards into operational humanitarian assistance programming tools can be traced to humanitarians’ distress about their role in several well-known emergencies, especially the famine in Somalia in the early 1990s and the aftermath of the Rwandan genocide in 1994. In relation to Rwanda, the Joint Evaluation of Emergency Assistance to Rwanda identified the need for humanitarian organizations to set up self-regulation schemes aimed at improving performance. See Relief and Rehabilitation Network 1996, Recommendation 11.
- 28.
In fact humanitarian organizations often tailored human rights standards on their needs and ultimately their discretion.
- 29.
The rights to which a given organization abides are generally included in codes of conduct or standards, such as the Code of Conduct of the International Red Cross and Red Crescent Movement in Disaster Relief, the Humanitarian Charter, the People in Aid Code of Practice in the Management and Support of Aid Personnel, the Sphere Project’s Minimum Standards in Disaster Response, and the HAP Standard. More recently, in 2009, the International Development Law Organization (IDLO) published the Manual on International Law and Standards Applicable in Natural Disaster Situations.
- 30.
In order to come up with this problem, by 1996 humanitarian organizations had set up the Active Learning Network for Accountability and Performance (ALNAP) and the ‘Standards Project’, which later became the Sphere Project, aimed at formulating standards for humanitarian assistance. Members of the humanitarian aid system identified the need to ensure their accountability to beneficiaries and other stakeholders.
- 31.
Darcy and Hoffman 2003, 5.
- 32.
Report of the International Law Commission on the work of its sixty-first session (4 May to 5 June and 6 July to 7 August 2009), UN Doc. A/64/10 para 155.
- 33.
UN Doc. A/64/10 para 178.
- 34.
UN Doc. A/63/677 para 10 (b).
- 35.
The Commission also decided to delete the general statement on the obligation of States to ensure an adequate and effective response, deeming it more appropriate to specifically address the different obligations incumbent on the various States involved (affected States, assistance-providing States etc.) in subsequent articles.
- 36.
Third report on the protection of persons in the event of disasters, UN Doc. A/CN.4/629, 31 March 2010 para 9.
- 37.
Cf. Commentary to draft Article 2, UN Doc. A/65/10 para 331.
- 38.
However, a reference to the importance, in case of disasters, of economic and social rights is made in the Commentary to Article 10, Report of the International Law Commission on the work of its sixty-third session (26 April to 3 June and 4 July to 12 August 2011), UN Doc. A/66/10, para 289.
- 39.
Cf. UN Doc. A/61/10, 481.
- 40.
Commentary, draft Article 8, UN Doc. A/66/10 para 289.
- 41.
On the issue see Chap. 15 by Creta in this volume.
- 42.
UN Doc. A/CN.4/598 para 54.
- 43.
Cf. draft Article 6, reading ‘Humanitarian principles in disaster response.’
- 44.
Cf. inter alia: GA resolutions 63/139 (5 March 2009), 63/141 (10 March 2009), 64/74 (27 January 2010) and 64/76 (2 February 2010); Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief, revised on 1 November 2007, paras 1, 20, 22, 79, 80, 93 and 95; International Federation of Red Cross and Red Crescent Societies, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 2007, Article 4 para 2; AU Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted 22 October 2009, Article 5 para 8.
- 45.
While humanity and impartiality indisputably apply to any kind of disaster situations, neutrality at first sight could seem a context-specific principle, inextricably connected to the idea of a conflict or contrast among opposing parties. Nevertheless, as was noted by Mr. Valencia-Ospina, in disaster situations other than armed conflict neutrality should be understood as implying that ‘those responding to disasters should abstain from any act which might be interpreted as interference with the interests of the State. Conversely, the affected State must respect the humanitarian nature of the response activities and ‘refrain from subjecting it to conditions that divest it of its material and ideological neutrality.’ Neutrality can thus be considered as ‘a key operational principle to ensure access to those adversely affected by disasters in an impartial manner’ (UN Doc. A/CN.4/629 paras 29–30).
- 46.
UN Doc. A/CN.4/629 para 25.
- 47.
Draft Article 6, entitled ‘Humanitarian principles in disaster response’, reads as follows:
‘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.’
With respect to the draft originally proposed, the text as approved makes explicit reference to non-discrimination. Admittedly, this addition is unnecessary because the principle at issue already finds expression in the principles of impartiality and neutrality, and in fact most instruments relating to humanitarian assistance do not separately mention it.
- 48.
UN Doc. A/CN.4/629 para 74.
- 49.
UN Doc. A/CN.4/629 paras 74–75.
- 50.
Un Doc. A/CN.4/629 para 78.
- 51.
UN Doc. A/65/10 para 318.
- 52.
A direct connection between the State’s duty to protect and its primary role in the control and supervision of humanitarian actions taking place on its territory is affirmed in the 2003 IDI resolution on humanitarian assistance (hereinafter Bruges resolution), which states that:
‘The affected State has the duty to take care of the victims of disaster in its territory and has therefore the primary responsibility in the organization, provision and distribution of humanitarian assistance. As a result, it has the duty to take the necessary measures to prevent the misappropriation of humanitarian assistance and other abuses’. (Institut de Droit International, Humanitarian assistance, 2 September 2003, Bruges Session, Article III.1, emphasis added).
- 53.
The said view is confirmed by the Commentary, where it is clearly recognized that ‘As a whole, draft Article 9 is premised on the core principles of sovereignty and non-intervention respectively, as enshrined in the Charter of the United Nations, and recognized in numerous international instruments’ (UN Doc. A/66/10 para 289).
- 54.
The Rapporteur recalled that such a requirement is present in several treaties governing disaster relief as well as in humanitarian law conventions. The reference to humanitarian law is though incomplete. The Rapporteur in fact refers to the basic provisions regulating the delivery of humanitarian assistance in international and non-international armed conflicts, forgetting instead to mention the ones dealing with relief in an occupied territory. Far from being too context-specific, these latter provisions deal with a situation—that of occupation—which is the most similar to that occurring in peacetime in an emergency context. In both cases the territorial State/Occupying Power is assigned the primary responsibility to take care of the victims of the emergency. In fact the Occupying Power, while not having sovereignty on the territory it occupies, nonetheless has towards the occupied population obligations that are similar to those of a sovereign entity. That is why, not coincidentally, Article 59 IV Geneva Convention unambiguously requires that: ‘If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes’ (emphasis added). See also Chap. 2 by Venturini in this volume.
- 55.
Cf. draft Article 8, para 2 (UN Doc. A/CN.4/629 para 96).
- 56.
UN Doc. A/CN.4/629 para 100.
- 57.
UN Doc. A/65/10 para 323.
- 58.
Fourth report on the protection of persons in the event of disasters, UN Doc. A/CN.4/643, 11 May 2011.
- 59.
Cf. draft Article 10 entitled Duty of the affected State to seek assistance (UN Doc. A/66/10 para 289).
- 60.
Article III para 3, Bruges resolution.
- 61.
UN Doc. A/CN.4/590 para 57.
- 62.
UN Doc. A/CN.4/643 para 44. According to Benton Heath, this would not necessarily be the case since ‘[a]n equally reasonable interpretation [of the right to request assistance] would be that international law requires an affected state to put out a call for offers of assistance, while leaving it the plenary right to refuse any offer for any reason’ (Benton Heath 2011, 454–455).
- 63.
UN Doc. A/CN.4/643 para 44; ILC Commentary, Article 10 (UN Doc. A/66/10 para 289). The formulation of the article was directly inspired by the corresponding provision of the Bruges resolution.
- 64.
The text as adopted contains only a minor change with respect to the original draft and reads as follows: ‘To the extent that a disaster exceeds its national response capacity, the affected State has the duty to seek assistance from among other States, the United Nations, other competent intergovernmental organizations and relevant nongovernmental organizations, as appropriate’.
- 65.
ILC Commentary, Article 10, UN Doc. A/66/10 para 289. It then referred to some of the rights which are directly implicated in the context of a disaster, such as the right to life, the right to food, and the right to health and medical services.
- 66.
UN Doc. A/CN.4/590 para 65.
- 67.
UN Doc. A/CN.4/643 para 70.
- 68.
Sic Commentary, Article 11, UN Doc. A/66/10 para 289.
- 69.
See, e.g., Institut de Droit International 2003, 161.
- 70.
Institut de Droit International 2003, 420 (Orrego Vicuña), 446 (Schermers), 562 (Rapporteur Vukas); Tome II 164 (Cassese) and 178 (Ress).
- 71.
Kolb remarks that ‘L’interdiction de l’arbitraire a été perçue par certains comme un principe général du droit international, qui se rattache à l’interdiction de l’abus de droit et, de manière médiate, au principe de la bonne foi’. According to him, ‘on peut dire que l’interdiction de l’arbitraire constitue un standard pour des actes gravement viciés au regard des idées directrices de l’ordre juridique et de la justice, un standard qui se compose de divers volets non exhaustifs: (1) des actes manifestement injustifiés au regard des faits; (2) l’exercice manifestement et objectivement choquant d’un droit; (3) les actes violant la conscience juridique; (4) les actes en fraude à la loi ou au droit; (5) certains exercices discriminatoires de droits; (6) l’exercice déraisonnable de droits, y compris les actes dépourvus d’utilité réelle.’ (Kolb 2004, 868–9).
- 72.
Cf. Article 11, para 3 as provisionally adopted by the ILC (UN Doc. A/66/10 para 289).
- 73.
Cf. ILC Commentary Article 11, ibid. Referring to the UN Guiding Principles on Internal Displacement, Cohen and Bradley affirm that ‘[r]efusal without good reason constitutes arbitrariness and a violation of the right to life.’ (Cohen and Bradley 2010, 34). On the need to give reasons for a refusal the same opinion was expressed by Cassese (see Institut de Droit International 2003, 535).
- 74.
The issue is specifically dealt with by Costas Trascasas in Chap. 10 of this volume.
- 75.
Second report on the protection of persons in the event of disasters, UN Doc. A/CN.4/615 para 50.
- 76.
UN Doc. A/CN.4/615 para 54. A definition of solidarity can be found in GA resolution 56/151 of 19 December 2001, which states that solidarity is ‘a fundamental value, by virtue of which global challenges must be managed in a way that distributes costs and burdens fairly, in accordance with basic principles of equity and social justice, and ensures that those who suffer or benefit the least receive help from those who benefit the most’ (see para 3 f).
- 77.
UN Doc. A/64/10 paras 173 ff.
- 78.
Cf. Article 5. Duty to cooperate (Texts of draft Article 1, 2, 3, 4, and 5 as provisionally adopted by the Drafting Committee, 24 July 2009, UN Doc. A/CN.4/L.758). Note that Article 5 was adopted, two years before Articles 10 and 11, on the understanding that a provision on the primary responsibility of the affected State would be included in the future in the set of draft Articles.
- 79.
UN Doc. A/CN.4/643 para 96.
- 80.
Report of the International Law Commission on the work of its sixty-third session (26 April to 3 June and 4 July to 12 August 2011) UN Doc. A/66/10 paras 279 ff.
- 81.
- 82.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgement of 5 February 1970, ICJ Rep. 1970, para 33.
- 83.
Skogly 2006, 81.
- 84.
Boisson de Chazournes speaks in this respect of the ‘horizontal dimension’ of solidarity, conceived as ‘a means of rescuing a population encountering serious dangers that cannot be protected by its own State. This is a form of solidarity where the relationship is between States and populations of other States (and between international organisations and populations), hence ‘vertical’’ (Boisson de Chazournes 2010, 102).
- 85.
And in fact it was so conceived by the Institut de Droit International, which in Article IV of the Bruges resolution, entitled ‘Droit d’offrir et de fournir une assistance humanitaire’, affirms that:
‘Les États et les organisations ont le droit de fournir une assistance humanitaire aux victimes se trouvant sur le territoire des États affectés, sous réserve du consentement de ces derniers’ (para 2).
- 86.
It must in fact be recalled in this respect that the concept of sovereignty as responsibility dates back well before the responsibility to protect doctrine and was first conceptualized by Francis Deng with respect to the protection of internally displaced persons (cf. Cohen and Deng 1998, 251).
- 87.
Furthermore, the topic here reviewed does not seem to have attracted much interest from States. This is shown by the fact that following a request, back in 2008, addressed to States to submit information on their practice under this topic, so far only three States responded (UN Doc. A/66/10 para 284).
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Zorzi Giustiniani, F. (2012). The Works of the International Law Commission on ‘Protection of Persons in the Event of Disasters’. A Critical Appraisal. In: de Guttry, A., Gestri, M., Venturini, G. (eds) International Disaster Response Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-882-8_3
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