The 2016 ILC Draft Articles on the Protection of Persons in the Event of Disasters and Their Relevance for Victims of Nuclear Accidents and Use of Nuclear Weapons

Rietiker, Daniel

doi:10.1007/978-94-6265-347-4_6

Daniel Rietiker³

525 Accesses

Abstract

In 2016, the UN International Law Commission (ILC) adopted its Draft Articles on the Protection of Persons in the Event of Disasters with a view to enhancing the protection of basic human rights of persons confronted with calamitous events, human-made or natural ones. This contribution aims at assessing the pertinence and value of the Draft Articles for the protection of the rights of victims of detonations of nuclear weapons. It will take into account other applicable norms of international law, in particular IHL and the adoption, in 2017, of the Treaty on the Prohibition of Nuclear Weapons (TPNW), providing for the duty of States Parties to assist victims of past and future nuclear weapons’ use and nuclear testing, and will analyze the relationship between these two recent documents. The chapter consists of three parts: In Sect. 6.1, it will examine whether, and to what extent, the Draft Articles are applicable to situations of detonation of nuclear weapons, including when caused by terrorists. In other words, the definition of ‘disaster’ will be at stake. Section 6.2 will be dedicated to the question of who bears the main responsibilities for the protection of persons in the event of a disaster, and to the duty to cooperate between States. In Sect. 6.3, the scope and role of the applicable principles, such as human dignity, human rights and humanitarian principles, which have to be respected and promoted in the aftermath of a disaster, will be discussed and compared with similar duties deriving, among others, from the assistance clause of the TPNW.

Ph.D. (University of Lausanne), Master of international relations (Geneva Institute of International and Development Studies (IUHEID), Member of the ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law, lecturer of international law at the University of Lausanne and adjunct professor of human rights law at Suffolk University Law School (Boston, MA).

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Notes

1.
Adopted by the ILC at its sixty-eighth session, in 2016, and submitted to the General Assembly as part of the ILA’s report covering the work of that session (A/71/10). The report, which also contains commentaries to the Draft Articles (para 49), appears in Yearbook of the International Law Commission, 2016, vol. II, Part Two. For the preparatory work to the Draft Articles, see Bartolini 2017, pp. 1107–1108.
2.
Preamble, para 2, which reads as follows: ‘Considering the frequency and severity of natural and human-made disasters and their short-term and long-term damaging impact…’.
3.
Article 2 (Purpose) of the Draft Articles.
4.
ILC Commentary of Article 1, para 1. Article 1 of the Draft Articles reads as follows: ‘The present Draft Articles apply to the protection of persons in the event of disasters’.
5.
Preamble, para 2, cited above.
6.
Article 9 (Reduction of the risk of disasters) of the Draft Articles.
7.
Treaty on the Prohibition of Nuclear Weapons, UN Doc A/CONF.229/2017/8 (7 July 2017). See, concerning this instrument, Docherty 2018; and Pedrazzi 2018.
8.
Article 3(a) of the Draft Articles.
9.
ILC Commentary of Article 3 of the Draft Articles, para 4.
10.
In this sense, ibid.
11.
Ibid.
12.
Ibid.
13.
Grover 2013, para 6.
14.
Ibid., para 7.
15.
ILC Commentary of Article 3 of the Draft Articles, para 5.
16.
See ‘Article 36 (2013) Humanitarian Consequences: Short Case Study of the Direct Humanitarian Impacts from a Single Nuclear Weapon Detonation on Manchester, United Kingdom’, http://www.article36.org/nuclear-weapons/humanitarian-impacts-from-a-single-nuclear-weapon-detonation-on-manchester/, p. 14.
17.
Van der Zeijden and Snyder 2014.
18.
Ibid., pp. 15–22.
19.
Ibid., p. 22.
20.
Ibid.
21.
Ibid.
22.
Ibid.
23.
Ibid. The study adds that the number of thyroid cancer would partly depend on the ability of the Dutch Government to provide people in affected areas with iodine prophylaxis pills, but concludes that it would almost certainly be impossible to reach all people in time.
24.
Ibid. The study stressed that once the extent of the fall-out has become clear, many of the evacuees could return home. The experts expect that, all in all, roughly 400,000 people would need long-term relocation. Moreover, of the 1,850,000 people allowed to return home, it is expected that many would be reluctant to go back as a result of the stigmatization and perceived contamination of the areas where they have lived.
25.
BBC WW2 People’s War, Fact File: Hiroshima and Nagasaki, 6 and 9 August 1945, https://www.bbc.co.uk/history/ww2peopleswar/timeline/factfiles/nonflash/a6652262.shtml.
26.
ILC commentary of Article 3 of the Draft Articles, para 7.
27.
Maresca 2013, p. 132, no. 274.
28.
Doswald-Beck 2014, p. 452.
29.
MacPherson 2019, p. 154.
30.
Grover 2013, cited above, para 11.
31.
See, for instance, Bromet et al. 1982, pp. 225–276; and Havenaar et al. 1997, pp. 1605–1607.
32.
ILC Commentary of Article 3 of the Draft Articles, para 8.
33.
See Doswald-Beck 2014, cited above, p. 459.
34.
Grover 2013, cited above, para 11.
35.
WHO, FAQs: Fukushima Five Years On, https://www.who.int/ionizing_radiation/a_e/fukushima/faqs-fukushima/en/.
36.
There is no definition of a ‘low-yield’ nuclear weapon, but the expression is often used to refer to explosive devices with an explosive output of less than 5 kilotons TNT equivalent. For comparison, the bombs used in Hiroshima and Nagasaki had yields in the range of 12 to 15 kilotons (Burroughs 2003).
37.
Written arguments of the United Kingdom, p. 53.
38.
Ibid.
39.
Burroughs 2011, p. 5.
40.
Moxley et al. 2011, p. 661.
41.
ILC Commentary of Article 18 of the Draft Articles, para 2.
42.
For such multilateral treaties see, e.g., the 1998 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, or the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, negotiated and adopted in the aftermath of the Chernobyl accident (see, for the latter, Gioia 2012, pp. 96–98).
43.
ILC Commentary of Article 18 of the Draft Articles, para 3.
44.
Ibid., para 4.
45.
Below, Sect. 6.2.2.3.
46.
ILC Commentary of Article 18 of the Draft Articles, para 8. See, for a critical analysis of such an approach, Venturini 2012. See also Rodenhäuser and Giacca 2016.
47.
ILC Commentary of Article 18 of the Draft Articles, para 8.
48.
Ibid.
49.
Ibid., para 9. The ICRC and certain States, in particular Switzerland, were opposed to that formulation as they were not in favour of the application of the Draft Articles to armed conflict, arguing that they could restrict the prerogatives of humanitarian organizations (see, for instance, the ICRC comments, http://legal.un.org/docs/?path=../ilc/sessions/68/pdfs/english/pop_icrc.pdf&lang=E).
50.
See, for an overview, Rodenhäuser and Giacca 2016, cited above.
51.
Geneva Convention IV, Article 10; see also Geneva Conventions I, II and III, common Article 9.
52.
Additional Protocol I, Article 81.
53.
Ibid., para 3.
54.
Geneva Convention IV, Article 23.
55.
In particular, the duty only applies where the States is satisfied that there are no serious reasons for fearing that the consignments maybe diverted or control over their distribution may not be effective or that a definitive advantage may accrue to the military efforts or economy of the enemy by allowing the consignment (ibid.).
56.
See, in particular, Geneva Convention IV, Article 55, that provides that ‘to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate’. Geneva Convention IV, Article 63, also recognizes the right of humanitarian initiative of national Red Cross and other relief societies, as well as other assistance organizations. Its Article 59 provides that a State Party to a conflict that grants free passage for relief supplies headed to territory occupied by an adverse party to the conflict has the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.
57.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts—AP I—(8 June1977), 1125 UNTS 3.
58.
Additional Protocol I, Article 70.
59.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts—AP II—(8 June 1977), 1125 UNTS 3.
60.
Article 18, para 1 of Additional Protocol II.
61.
Article 18, para 2 of Additional Protocol II.
62.
Williams and Simm 2018, p. 55.
63.
Ibid.
64.
Ibid.
65.
Above, section “The Impact of a Detonation of a Nuclear Weapon”.
66.
Eide 2013.
67.
Borrie and Caughley 2014, p. 76.
68.
Ibid.
69.
Williams and Simm, cited above, p. 55.
70.
Ibid, p. 56. See, in this sense, Gavshon 2009; and Venturini 2012, cited above. According to Bartolini 2017, potential conflicts between the Draft Articles and IHL would be quite limited (p. 1113).
71.
Article 31, para 3(c) of the 1969 Vienna Convention on the Law of Treaties (VCLT) states that there shall be taken into account, ‘together with the context…any relevant rules of international law applicable in the relations between the parties’.
72.
Definition given by the Inter-Agency Standing Committee in 1994.
73.
See, for more details on the nature of the TPNW, Rietiker 2019, pp. 325–353; see also Docherty 2018, pp. 163–186; and Pedrazzi 2018, pp. 215–234.
74.
Preambular para 3 of the Ottawa Convention reads as follows: ‘The States Parties… wishing to do their utmost in providing assistance for the care and rehabilitation, including the social and economic reintegration of mine victims’.
75.
Convention on Cluster Munitions (30 May 2008), 2688 UNTS 39. Article 5, para 1 of the Convention reads as follows: ‘Each State Party with respect to cluster munition victims in areas under its jurisdiction or control shall, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion. Each State Party shall make every effort to collect reliable relevant data with respect to cluster munition victims.’
76.
See Koskenniemi 2006, p. 136, stating that such clauses provide for a rebuttable presumption of harmony between the earlier and the subsequent treaty.
77.
See above n 2.
78.
Article 9 (Reduction of the risk of disasters) of the Draft Articles.
79.
See, in this sense, as far as the Oslo Convention is concerned, Reiterer and Leibowitz 2010, p. 359.
80.
On the other hand, the TPNW as a whole, aiming at banning nuclear weapons forever, can be considered a preventive measure.
81.
Below, Sect. 6.4.
82.
Article 31(1) VCLT (General rule of interpretation) reads as follows: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ Paragraph 3(c) of this provision adds what follows: ‘There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.’.
83.
Article 30 VCLT establishes certain rules on the ‘application of successive treaties relating to the same subject-matter’.
84.
See the European Court of Human Rights in the case of Nada v. Switzerland, GC, 12 September 2012, para 170: ‘When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavor to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonized as far as possible so that they produce effects that are fully in accordance with existing law (…).’ See also the report of the study group of the International Law Commission (ILC) entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, published in 2006, in particular paras 37–39.
85.
Article 10, para 1.
86.
Article 10, para 2. This paragraph was criticized by the ICRC for being too intrusive for impartial humanitarian organizations (Bartolini 2017, p. 1113).
87.
ILC Commentary of Article 11 of the Draft Articles, para 5. The ILC derived this formulation from the resolution on human assistance adopted by the Institute of International Law at its 2003 Bruges session, which notes that ‘[w]herever the affected State is unable to provide sufficient humanitarian assistance to the victims placed under its jurisdiction or de facto control, it shall seek assistance from competent international organizations and/or from third States’. (Institute of International Law, Yearbook, vol. 70, Part II, Session of Bruges (2003), Article III, para 3).
88.
Above n 22.
89.
ILC Commentary of Article 7 of the Draft Articles, para 1.
90.
See also Articles 55 and 56 of the UN Charter.
91.
Article 12, para 1.
92.
Article 12, para 2.
93.
Article 13, para 1.
94.
Article 13, para 2.
95.
Akande and Gillard 2016, pp. 23–24. Another example of arbitrary refusal to external assistance might be a situation where the affected State does not provide sufficient motivation concerning its decision as such an attitude might demonstrate absence of good faith (ILC commentary of Article 13 § 2 of the Draft Articles, para 10; see also Bartolini 2017, p. 1126).
96.
Article 13, para 3.
97.
Article 7, para 1.
98.
Article 7, para 2.
99.
Article 7, para 3.
100.
Article 7, para 4.
101.
Article 7, para 5.
102.
Article 7, para 6.
103.
ILC Commentary of Article 4 of the Draft Articles, para 1.
104.
Ibid. As such, this principle applies in the context of relief assistance, disaster risk reduction and in the ongoing evolution of applicable laws.
105.
Ibid.
106.
See, for instance, International Covenant on Civil and Political Rights (Article 25), International Covenant on Economic, Social and Cultural Rights (preamble, and Article 13, para 1), International Convention on the Elimination of all Forms of Racial Discrimination (preamble), the Convention on the Elimination of All Forms of Discrimination against Women (preamble), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (preamble), the Convention on the Rights of the Child (Preamble, Article 23, paras 1, 28, paras 2, 37, and 39–40), and the Convention on Rights of Persons with Disabilities (Article 3).
107.
See, in particular, common Article 3, para 1 (c), of the Geneva Conventions, as well as Articles 75 and 85 of Protocol I and Article 4 of Protocol II.
108.
Preambular para 6 reads as follows: ‘The States Parties to this Convention…determined also to ensure the full realization of the rights of all cluster munition victims and recognizing their inherent dignity.’
109.
Guideline 4, para 1.
110.
UNGA Res 45/100 (14 December 1990), ‘Humanitarian assistance to victims of natural disasters and similar emergency situations’.
111.
Dissenting opinion of Judge Weeramantry, Section III.10(g), ICJ Reports 1996, p. 507; see also in this sense the dissenting opinion of Judge Koroma in the 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, p. 577: ‘It should be recalled that both human rights law and international humanitarian law have as their raison d’être the protection of the individual as well as the worth and dignity of the human person, both during peacetime or in an armed conflict.’
112.
ILC Commentary of Article 4 of the Draft Articles, para 6.
113.
Ibid.
114.
Bagshaw 2013, p. 122.
115.
Ibid.
116.
ILC Commentary of Article 5 of the Draft Articles, para 1.
117.
Ibid., para 4.
118.
Ibid. See also Zorzi Giustiniani 2012; and Cedervall Lauta 2016.
119.
ILC Commentary of Article 5 of the Draft Articles, para 7.
120.
See, concerning this topic, Sommario 2018, pp. 98–118.
121.
General Comment no. 29, para 5. See, in the same sense, also Sommario 2018, cited above, p. 106, Joseph et al. 2005, p. 825; and Boisson De Chazournes 1996, p. 465.
122.
General Comment no. 29, para 5.
123.
A recent example is the letter of 21 July 2016 by which the Government of Turkey communicated to the Secretary-General of the Council of Europe the notice of derogation under Article 15 of the ECHR. This derogation was prolonged for three months several times.
124.
ILC Commentary of Article 5, para 6, and of Article 11, para 3.
125.
Article 4, para, 1 of the ICCPR.
126.
Human Rights Committee, General Comment No. 36, UN Doc. CCPR/C/GC./36 (30 October 2018).
127.
Above, section “The Subsidiary, yet Important Role Played by the Draft Articles”.
128.
Doswald-Beck 2014, cited above, p. 451. This raises the question whether an attack with nuclear weapons would fall under the jurisdiction or control of the attacking State and, as a result, the victims could ask redress before an international tribunal. Regarding the ECHR, for example, a more conservative approach, rejecting the competence of the Court, adopted by the Court in the case of Banković and Others v. 17 NATO Member States (decision, GC, no. 52207/99, 12 December 2001, § 75) has not been followed in more recent cases (see, in particular, Issa and Others v. Turkey, no. 31821/96, 16 November 2004, §§ 74–75, and Pad and Others v. Turkey, decision no. 60167/00, 28 June 2007, § 54), in which the Court has accepted to deal with those cases even though the killings have been taken place outside of the territory of the attacking State party to the ECHR (see Milanović 2011).
129.
Doswald-Beck 2014, cited above, p. 450.
130.
Varnava and Others v. Turkey, ECtHR, Judgment, nos. 16064/90 et al., 18 September 2009, para 185.
131.
Ibid.; see also the case of Ahmet Özkan and Others v. Turkey, Judgment, no. 21689/93, 6 April 2004, paras 307 and seq.
132.
Varnava and Others, cited above, para 186.
133.
ILC Commentary of Article 5, para 6.
134.
Article 2 § 1 ICESCR reads as follows: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’
135.
ILC Commentary of Article 11, para 3.
136.
Article 6 of the Draft Articles.
137.
Article 25, para 1 reads as follows: ‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services.’
138.
Grover 2013, cited above, para 11.
139.
Havenaar et al. 1997, cited above, p. 1606.
140.
CommEDAW, Report of the Committee on the Elimination of Discrimination against Women, UN Doc. A/59/38, 12–30 January 2014, paras 355–356.
141.
CommRC, Concluding Observations of the Committee on the Rights of the Child: Kazakhstan, UN Doc. CRC/C/15/ADD.213, 10 July 2003, para 59. See also Inglese 2018, pp. 169–171.
142.
CESCR, General Comment 12, Right to adequate food (Twentieth Session, 1999), UN Doc. E/C.12/1999/5 (1999), para 1.
143.
Ibid., para 13.
144.
Inglese 2018, cited above, p. 171.
145.
Ibid. See also Telesetsky 2016, in particular pp. 260–264, concerning the right to food during a disaster.
146.
Acheson 2013, p. 63.
147.
Ibid.
148.
The Human Consequences of the Chernobyl Nuclear Accident: A Strategy for Recovery, A Report Commissioned by UNDP and UNICEF with the support of UN-OCHA and WHO, 2012; available under: http://www.unicef.org/newsline/02chernobylstudy.htm.
149.
Ibid., p. 172.
150.
General Comment no. 15, The Right to Water (Articles 11 and 12 of the Covenant), 20 January 2003, UN Doc. E/C.12/2002/11, para 3.
151.
Ibid., para 16 (g).
152.
Ibid., para 34. See also, for the right to water in disaster settings, Phan and Winkler 2016, in particular pp. 313–315; and Aronsson-Storrier and Salama 2016, in particular pp. 330–333.
153.
See, for some examples, Rietiker 2017, pp. 216–222.
154.
Kellman 2009.
155.
Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing (Article 11 para 1 of the Covenant), UN Doc. E/1992/23, 13 December 1991, and General Comment No. 7: The right to adequate housing; forced evictions, UN Doc. E/1998/22, 20 May 1997.
156.
Rietiker 2017, cited above, p. 197.
157.
Committee on Economic, Social and Cultural Rights, General Comment No. 7, cited above, para 15.
158.
Ibid, para 16.
159.
Rolnik 2018, p. 183. See also Kälin and Entwisle Chapuisat 2016.
160.
Report of the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) to the UN General Assembly, vol. 1, 2000, para 18, http://www.unscear.org/docs/reports/gareport.pdf.
161.
Japan marks 8th anniversary of 3/11 disaster in Tohoku region, The Asahi Shimbun; http://www.asahi.com/ajw/articles/AJ201903110021.html. See also Do 2019, pp. 235–252.
162.
Rietiker 2017, cited above, pp. 223–229.
163.
ILC Commentary of Article 6 of the Draft Articles, para 2. The General Assembly, in its resolution 46/182 (19 December 1991), noted that: ‘Humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality’ (Annex, para 2).
164.
McDermott 2018, p. 89.
165.
ILC Commentary of Article 6 of the Draft Articles, para 7. See also Bizzarri 2012; and Crock 2016.
166.
Ibid.
167.
Ibid.
168.
See, in this regard, Bizzarri 2012, cited above, pp. 399–402.
169.
IFRC Guidelines, Article 4, para 3 a. See also UN General Assembly Resolution 69/135 (12 December 2014) requesting ‘[m]ember States, relevant humanitarian organizations of the United Nations system and other relevant humanitarian actors to ensure that all aspects of humanitarian response, including disaster preparedness and needs assessments, take into account the specific humanitarian needs and vulnerabilities of all components of the affected population, in particular girls, boys, women, older persons and persons with disabilities, including in the design and implementation of disaster risk reduction, humanitarian and recovery programming and post-humanitarian emergency reconstruction, and in this regard encourages efforts to ensure gender mainstreaming …’. See also Bizzarri 2012, cited above, who includes minorities and indigenous peoples to the groups of vulnerable persons (pp. 405–409).
170.
ILC Commentary on Article 6, para 9. See also Venturini 2018, p. 365, who holds that gender inequalities are likely to cause a higher death toll among women while risks of rape or other forms of violence increase when gender-blind assistance does not meet the needs of women.
171.
Above, section “Economic, Social and Cultural Rights”.
172.
Preamble, para 4.
173.
Venturini 2019, p. 107. See also, in particular on reproductive rights, Rietiker 2017, cited above, pp. 229–233.
174.
Above, Sect. 6.2.2.2.
175.
Article 11.
176.
Maresca 2013, cited above, p. 132, note 274.
177.
Doswald-Beck 2014, cited above, p. 452.
178.
See also MacPherson 2019, cited above, pp. 153–154.
179.
See Article 1, para 1, combined with Article 3 CRPD.
180.
Breitegger 2012, p. 108.
181.
Article 6 (Women with disabilities) and Article 7 (Children with disabilities); see also the preamble, paras (q) and (r).
182.
Article 5, para 1. See preambular para 9 of the Oslo Convention which refers explicitly to the CRPD: ‘The States Parties to this Convention, …Bearing in mind the Convention on the Rights of Persons with Disabilities which, inter alia, requires that States Parties to that Convention undertake to ensure and promote the full realization of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability.’
183.
Such a definition is provided for in Article 2, para 1 of the Oslo Convention: ‘Cluster munition victims means all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalization or substantial impairment of the realization of their rights caused by the use of cluster munitions. They include those persons directly impacted by cluster munitions as well as their affected families and communities.’

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Faculty of Law, Criminal Sciences and Public Administration, University of Lausanne, 1015, Lausanne-Dorigny, Switzerland
Daniel Rietiker

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Rietiker, D. (2020). The 2016 ILC Draft Articles on the Protection of Persons in the Event of Disasters and Their Relevance for Victims of Nuclear Accidents and Use of Nuclear Weapons. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume V. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-347-4_6

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DOI: https://doi.org/10.1007/978-94-6265-347-4_6
Published: 03 January 2020
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