Abstract
The issue of protection and assistance of individuals in the event of disasters is of great contemporary relevance. It is particularly saddening to see the increase in disasters, to illustrate a few – the Indian Ocean Tsunami (2004), massive South Asia earthquake (2005), Myanmar cyclone (2008) – that bring to the fore the importance of a well-coordinated humanitarian action for relief assistance and rehabilitation of victims of such disasters. As this chapter was being finalized, a massive earthquake wreaked havoc in Haiti. The task of humanitarian aid and assistance is more challenging in Haiti as relief has to be provided in a scenario where there is presently a non-functioning government and collapsed infrastructure in the country. Another factor that vitiates such complex emergencies is the lack of a sound legal framework for expediting and providing meaningful humanitarian relief operations.
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Notes
- 1.
See Executive Summary to UNDP (2004). Also, see for instance, BBC (2008). According to the World Disaster Report 2008, the total number of disasters, which occurred between 2004 and 2006 are 1,062 and the annual average number of disasters during this period being 354. See, Facts and Figures, World Disaster Report 2008. <http://www.Redcross.ca/article.asp?id=27849&tid=001> (accessed 2 January 2009).
- 2.
David Fisher, Overview of current legal frameworks applicable to international disaster response law, in Law and legal issues in international disaster response law: a desk study, pp. 33–82.
- 3.
Regional agreements include the 1987 Council of Europe Open Partial Agreement for the Prevention of Protection Against and Organisations of Relief in Major Natural and Technological Disasters, Resolution (87) 2 (adopted by the Committee of Ministers on 20 March 1987) and 1960 Agreement on the Temporary Important, Free of Duty, of Medical Surgical and Laboratory Equipment for Use on Free Loan in Hospitals and Other Medical Institutions for Purposes of Diagnosis of Treatment, Official Journal vol. L 131, pp. 48–49; the 1991 OAS Inter-American Convention of Facilitate Disaster Assistance (adopted at the Twenty-First Regular Session of the General Assembly of The Organization of American States, held at Santiago, Chile, on 6 July 1991); and the 2005 ASEAN Agreement on Disaster Management and Emergency Response (adopted at Ventiane, on 26 July 2005).
- 4.
In 2009, the Commission considered the second report of the Special Rapporteur (A/CN.4/615), which focused on aspects relating to the scope of the topic – material, personal, temporal, definition of disaster and principles of solidarity and cooperation. A conceptual approach for clarification on the protection of persons and for guiding further developments was emphasised under the guidance of Special Rapporteur Eduardo Valencia Ospina. The report further submitted proposals for draft articles on Scope of the topic (Article 1), on the Definition of disaster (Article 2) and the Duty to cooperate (Article 3). See, International Law Commission, Report of the International Law Commission, 61st session (4 May–5 June and 6 July–7 August 2009), 2009, A/64/10, para. 149, (here in after A/64/10) available at <http://untreaty.un.org/ilc/reports/2009/2009report.htm> (accessed 2 January 2009).
- 5.
The Commission at its fifty-eight session in 2006, on the basis of the recommendations of the Working Group on the long term programme of work, identified the topic “Protection of Persons in the Event of Disasters”. At its fifty-ninth session in 2007, the Commission decided to include the topic in its programme of work and to appoint Mr. Eduardo Valencia-Ospina as Special Rapporteur for the topic.
- 6.
International Law Commission, Report of the International Law Commission, 58th Session(1 May–9 June and 3 July–11 August 2006), 2006, A/61/10, Annex C, Protection of Persons in the Event of Disasters (Secretariat), para. 20 at p. 473.
- 7.
International Federation of the Red Cross and Red Crescent Societies (2000), World Disasters Report: Focus on Public Health, 145. As cited in footnote 41 of A/61/10, Annex C at p. 474.
- 8.
International Law Commission, Preliminary Report on the Protection of Persons in the event of disasters, 60th session (5 May–6 June and 7 July–8 August 2008), 2008, A/CN.4/598 (here in after A/CN.4/598) at para. 41.
- 9.
A/61/10, Annex C, para. 1 at p. 464.
- 10.
A/61/10, Annex C, para. 1 at p. 464.
- 11.
A/61/10, Annex C, paras. 11–22 at pp. 468–474.
- 12.
A/CN.4/598, paras. 44–49.
- 13.
A/CN.4/598, paras. 50–55.
- 14.
International Law Commission, Report of the International Law Commission, 60th session (5 May–6 June and 7 July–8 August 2008), 2008, A/63/10, para. 230, (here in after A/63/10) available at <http://untreaty.un.org/ilc/reports/2008/2008report.htm> (accessed 2 January 2009).
- 15.
Importance of the need to define “Protection” arose with the purpose to determine the rights and obligations of different actors in disaster situations. It is also identified to deal with the rights and duties of the international community to elucidate the content of obligations erga omnes. See Report of the ILC 2008, A/63/10 at para. 231.
- 16.
Ibid., para 221.
- 17.
Ibid., para 223.
- 18.
Ibid., para 227.
- 19.
In 1981, the United Nations General Assembly adopted by consensus a resolution relating to the New International Humanitarian Order. See A/Res 36/136 of 14 December 1981. Subsequently, the UN General Assembly Resolution 37/201 of 18 December 1982 noted “a proposal for the establishment, outside the framework of the United Nations, of an independent commission on international humanitarian issues composed of leading personalities in the humanitarian field or having wide experience of government or world affairs”. The independent commission was established in 1983. HRH Prince El Hassan bin Talal co-chaired this commission with the late HH Prince Sadruddin Aga Khan. The objective of this commission was to ensure a wider consensus of the Governments for respect for life; a responsibility towards future generations; protection of the human habitat and altruism nurtured by mutual interest and a recognition of human dignity and worth by working on issues of population, environment, poverty and development, man-made disasters, genetic engineering and industrial disasters. See HRH Prince El Hassan bin Talal, “A New International Humanitarian Order: Personal Contribution to the Helsinki Process on Globalisation and Democracy.” Available at <http://www.helsinkiprocess.fi/netcomm?Imglib/24/89/hp_contribution_hassan.pdf> (accessed 12 October 2008). The need to further strengthen national, regional and international efforts to address humanitarian emergencies was reiterated by the General Assembly in its sixty-third session. See A/Res/63/147 of 27 January 2009. Available at <http://daccessdds.un.org/doc/UNDOC/GEN/N08/479/61/PDF/N0847961.pdf?OpenElement> (accessed 29 January 2009).
- 20.
O’Callaghan and Pantuliano (2007), p. 7.
- 21.
For instance in mid-1997, then UN Secretary General Kofi Annan announced a series of reforms, including a mandate that human rights be fully integrated or “mainstreamed” into the work of the UN system. See, “Humanitarian Action: when needs are human rights” at <http://www.ihrnetwork.org/humanitarian-action_196.htm> (accessed 12 January 2009). The other important development which prompted a move towards mainstreaming rights into the work of the United Nations was the 1993 World Conference on Human Rights in Vienna. A Declaration and Program of Action was adopted which States that all agencies of the UN should engage in the formulation, promotion, and implementation of human rights.
- 22.
O’Callaghan and Pantuliano (2007), p. 7.
- 23.
Kaelin (2009), Foreword to International Law and Standards Applicable in Natural Disaster Situations, edited by E. Harper. Rome: International Development Law Organisation, p. 9.
- 24.
Brokings-Bern Project on Internal Displacement, Human Rights and Natural Disasters: Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disasters (IASC: 2006), p. 15.
- 25.
Darcy, J. and Hoffman, C.-A. (2003), According to Need? Needs Assessment and Decision-Making in the Humanitarian Sector. HPG Report, 15, edited by Overseas Development Institute, UK, p. 23.
- 26.
O’Callaghan and Pantuliano (2007), p. 8.
- 27.
See generally, Meron (1989).
- 28.
Quinevet (1999).
- 29.
A/63/10 at para. 229.
- 30.
A/63/10 at para. 223.
- 31.
A/63/10 at para. 228.
- 32.
A/63/10 at para. 231.
- 33.
Mani (1993), pp. 170 ff.
- 34.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment, ICJ Reports 1986 at para. 242.
- 35.
ILC Report, A/63/10; paras. 243, 245.
- 36.
In 2001, the International Commission on Intervention and State Sovereignty (ICISS) established this doctrine in order to identify a responsibility to prevent, react and rebuild populations from genocide, war crimes, crimes against humanity etc. According to this doctrine, if a population is suffering serious harm then the principle of non-intervention yields to an international responsibility to extend protection to that population. In 1992, the former UN Secretary General Boutros Boutros-Ghali published Agenda for Peace, which attempted to challenge the presumption that individuals suffering in other countries were the sole responsibility of the State to which they belong. In a way this notion was against absolute sovereignty leading to “Human Security.” In the aftermath of Myanmar’s cyclone in the summer of 2008, some experts say the spirit of the doctrine was tested. See Bajoria (2008).
The other situation of significant test was the 2004 Indian Ocean Tsunami, when Indonesia’s Aceh province was declared off limits for international human rights groups and aid organizations as the region was under martial law.
- 37.
ILC Report A/63/10; para. 248.
- 38.
ILC Report A/63/10; para. 249.
- 39.
ILC Report A/63/10; para. 247.
- 40.
ILC Report A/63/10; para. 250.
- 41.
There exists an entity that can be called an international community […]. It is governed by the rule of law, and functions largely within commonly established institutions developed to facilitate the collaborative engagement of its members in advancing these shared interests and values. See Saloman (2007), at p. 13. Also see Jacqueline (2003).
- 42.
A/CN.4/598 at para. 42.
- 43.
North Sea Continental Shelf Cases (Federal Republic of Germany, FRG v. Denmark; FRG v. Netherlands).
- 44.
Hardcastle and Chua (1998), pp. 589–609.
- 45.
Adopted on 19 Dec 1991 for “Strengthening of Coordination of Humanitarian Emergency Assistance,” which resulted in the formation of the Department of Humanitarian Affairs in the United Nations.
- 46.
“[On this aspect], to facilitate a formation of a new consensus, a Task Force on Ethical and Legal Issues in Humanitarian Assistance (hereinafter the Task Force) was formed by the Program on Humanitarian Assistance at the World Conference on Religion and Peace to assess and make recommendations on the range of issues responsible for the delivery of humanitarian assistance. The Task Force, inter alia, calls upon the Member States of the UN to recognize the right to humanitarian assistance and the responsibility to provide it […] reaffirm the guiding principles of humanitarian assistance enumerated in General Assembly Resolution 46/182 […] the principles of non-interference and sovereignty should not be used as an obstacle to humanitarian assistance. The objective of humanitarian assistance is to save lives and is not intended to challenge the sovereignty of the State on whose territory aid is to be delivered.” See Ebersole (1995), pp. 192–208.
- 47.
By its very nature, these Guidelines are non-binding. However, it is expected that States will make use of them to strengthen their laws, policies and/or procedures related to international disaster response. Available at <http://www.ifrc.org/Docs/pubs/idrl/guidelines/guidelines.pdf> (accessed 12 October 2008).
- 48.
The Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, adopted on 22 January 2005 at the World Conference on Disaster Reduction, document A/CONF.206/6, resolution 2. Available at: <http://www.un-documents.net/hyogodec.htm> (accessed 2 July 2008).
- 49.
Hardcastle and Chua (1998), pp. 589–609.
- 50.
Schachter (1963), at p. 160 and p. 231.
- 51.
Saloman (2007), p. 71.
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Patnaik, D.S. (2011). Towards an International Legal Framework for the Protection of Individuals in the Event of Disasters: An Initial Inquiry. In: Heintze, HJ., Zwitter, A. (eds) International Law and Humanitarian Assistance. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-16455-2_8
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