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Home Disaster Law The Draft Articles on “The Protection of Persons in the Event of Disasters”: Towards a Flagship Treaty?

The Draft Articles on “The Protection of Persons in the Event of Disasters”: Towards a Flagship Treaty?

Published on December 2, 2016        Author: 

The debate held on 24 – 26 October within the United Nations General Assembly (UNGA) Sixth Committee concluded an intensive year for the International Law Commission (ILC) topic “The Protection of Persons in the Event of Disasters”. It followed the adoption of the related 18 Draft Articles (DAs) on their second reading, and of the Commentary (here), on the basis of the eighth report submitted by the Special Rapporteur Eduardo Valencia-Ospina and comments received on the 21 draft articles adopted in 2014.  These DAs, which have already attracted attention (e.g. herehere), will be addressed in this post, which will also take into account the proposal made by the ILC “to recommend to the General Assembly the elaboration of a convention on the basis of the draft articles” (2016 Report, para. 46) thus diverging from its trend of favoring ‘soft’ final forms for topics under exam (here). Such possibility might concretize in the near future, taking into account the draft UNGA resolution requesting Governments to submit “comments concerning the recommendation by the Commission” and to include this item in the 2018 UNGA’s agenda.

The structure of the Draft Articles

The possibility of developing a universal flagship treaty would represent a significant novelty in the area of disaster law, which is currently characterized by a fragmented legal framework. In the ‘80s UN attempts to develop a similar convention were unable to achieve consensus, and practice has continued to evolve through universal treaties only addressing specific types of disasters or forms of assistance, regional instruments with different characters in terms of efficacy and structure (here and here), an incoherent network of bilateral treaties (here), and a vast array of soft-law instruments scarcely able to influence stakeholders.

Against this multifaceted background, the Draft Articles attempt to provide a legal systematization of the main issues, their purpose being “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” (Draft Article 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, the complexities generated by disasters have clearly demonstrated the need to pay attention to the overall disaster-cycle, thus referring not only to the relief phase, but also to recovery and, furthermore, preparedness, as testified by the 2015 Sendai Framework for Disaster Risk Reduction (DRR) endorsed by the UNGA, where heightened attention was paid to the legal dimension of disaster risk reduction activities. As a result, the Draft Articles have addressed disaster risk reduction, also identifying obligations in this area.

Second, the Draft Articles were required to take into account the different interests of the actors involved, namely: a) the affected State, whose sovereignty represents one of the pillars of the text, as reaffirmed in preambular paragraph 5; b) external assisting actors, to be identified as States, IOs, NGOs and “entities” (a term of art intended to include the Red Cross and Red Crescent Movement, but also potentially extending to companies); and c) the victims of disasters. The latter perspective has consequently led the Commission to engage in a heated debate within the humanitarian community on the differences between the ‘rights-based’ approach as opposed to the more traditional ‘needs-based’ one. These very diverse perspectives have also affected the inherent structure of the text, which appears to accommodate provisions along two main axes: a vertical level, addressing relationships between victims, the affected State and assisting actors, and a horizontal one, related to cooperation among affected States and assisting actors.

The content of the Draft Articles

The text is not a particularly long one, being composed of solely a preamble and 18 Draft Articles (DAs). The latter identify a series of substantive obligations, whose nature is reinforced by the constant use of the verb “shall”.

First, a set of provisions provide the boundaries to this text. Apart from the preamble, which sets down the basic principles mentioned above, and DA 1 and 2 (scope and purpose), whose commentaries are helpful in establishing background elements, other key provisions are DA 3 (use of terms) and DA 18 (relationship to other rules of international law).

In particular DA 3(a) addresses the definition of disaster, namely:

“a calamitous event or series of events resulting in 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”.

In this case, the ILC has decided to provide a legal definition of disaster, thus rejecting the solutions adopted in certain treaties that have avoided defining this term. However, there is no standard qualification of disasters and the Commission, while taking inspiration from some instruments, has still pursued its own approach, placing the focus on the event(s) rather than on the conceptualization of disasters as the consequence of event(s) bringing serious disruption to society. Nonetheless, its reference to ‘a series of events’ might include small-scale disasters incapable by themselves of meeting the high threshold set by the text, and can also accommodate rapid and slow-onset events. However, there are no clear boundaries to these descriptive criteria, and it would also be interesting to verify the possibility of DA 3(a) cross-fertilizing the terminology in future disaster law instruments.

Significantly, the ILC has refused to limit its focus to natural disasters, as done in some regional agreements and recently reiterated by the IDI, thus also covering man-made disasters. However, as underlined in the Commentary, mere situations of political and economic crisis would not be covered. Similarly, to avoid the misunderstanding raised by the 2014 Commentary, a clear reference now specifies that “A situation of armed conflict cannot be qualified per se as a disaster” (para. 10, 2016 Commentary), as otherwise hostilities would obviously meet the threshold provided by DA 3(a). In this latter regard, DA 18 tries to accommodate some early concerns regarding the potentially complex relationships between the DAs and international humanitarian law (IHL), stating that “The present draft articles do not apply to the extent that the response to a disaster is governed by the rules of international humanitarian law”. Consequently, IHL will prevail on issues regulated by both this branch of law and the DAs, which nevertheless have made extensive and similar use of principles pertaining to IHL in addressing some key elements.

Second, the ‘vertical/human’ dimension is addressed in DAs 4 (human dignity), 5 (human rights) and 6 (humanitarian principles). DAs 4 and 5 act as ‘reminders’ of existing positive and negative obligations, to be placed in the context of the inherent peculiarities raised by disaster scenarios, as highlighted by practice of human rights bodies and guidelines. Grounded on key instruments in this area, such as UNGA resolution 46/182, DA 6 further clarifies humanitarian principles, placing specific emphasis on topically crucial elements, such as the needs of vulnerable persons and groups.

Third, an additional set of provisions (DAs 7-17) relate to the ‘horizontal dimension’ of the project, mainly addressing legal relations among the affected States and assisting actors. These rules are inspired by the overall duty to cooperate expressed by DA 7, whose potential content is spelled out in DA 8 on forms of cooperation. Such framework principles should thus inform the activities of relevant actors, even if the Special Rapporteur and the ILC have denied any room for a potential duty to provide assistance. Nonetheless, under DA 12.2 (as introduced on the second reading) a sort of procedural obligation to properly evaluate specific requests of assistance from affected States has, significantly, been included. DA 12.2 requires other States, the UN and assisting actors to “expeditiously give due consideration to the request” for external assistance, thus seeking to exert diplomatic/humanitarian pressure on such entities in the event of requests.

Cooperation can also expand to disaster risk reduction activities, an area expressly covered by DA 9 which identifies the obligation for “Each State… (to) reduce the risk of disasters by taking appropriate measures…”, thus requiring States to act primarily at the domestic level “to prevent, mitigate, and prepare for disasters”. Even if this phase of disasters is addressed in one sole provision, it nonetheless represents a cornerstone of the text, rendering it capable of complementing non-binding approaches pursued at the international level such as the Sendai Framework, which identifies the modalities and measures States should adopt in fulfilling the duty expressed by DA 9. However, it goes without saying that the identification of a specific international obligation in this area has not been welcomed by all States.

Within the abovementioned ‘horizontal’ dimension, a series of provisions (DAs 10-13) seek to provide a system of ‘checks and balances’ to equilibrate diverging exigencies. For instance, regarding DA 10 (Role of the affected State), while paragraph 2 restates the basic principle of this subject’s primary role in the direction, control and supervision of assistance, thus accommodating concerns about its sovereign role, paragraph 1 focuses on positive duties related to this concept, requiring a State “to ensure the protection of persons and provision of disaster relief assistance in its territory”. This latter element is further emphasized in DA 11, which recognizes the duty of the affected State to seek external assistance if unable to cope with the disaster, while DA 12 adopts a similar checks and balances approach, maintaining the possibility for external entities to offer assistance (this activity not constituting an unfriendly act), but requiring potential assisting actors to give due consideration to specific requests for assistance.

Finally, this set of provisions is complemented by the crucial DA 13 on consent. While the ILC clearly refuses to support elements related to the R2P doctrine in this area, it follows a dual approach, first requiring the consent of the affected state for assistance activities to be conducted within its territory and, subsequently (para. 2), highlighting that consent shall not be withheld arbitrarily, and obliging the affected State to respond to offers received in a timely manner (here). In this latter regard the ILC has thus echoed past positions in this area (here, here) and adhered to a trend which has recently been reinforced (concerning IHL) by the recent Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. DA 13 even outlines, in its Commentary, relevant criteria for the identification of cases in which violations of this obligation may be ascertained. However, contrary to the Oxford Guidance, the ILC has not addressed the sensitive issue of legal consequences in the event of an arbitrary refusal.

An additional set of rules deal with ‘operational provisions’ regarding international assistance (DAs 14-17). These DAs, which provide general points of reference, aim to combine the interests of affected States, with regard to issues such as the quality of assistance (DA 14, Conditions on the provisions of external assistance), with those of the assisting actors, whose activities should be facilitated by the affected State (DA 15), as well as in terms of the protection of relief personnel, equipment and goods (DA 16). Such provisions allow for a certain amount of leeway regarding their application as the ILC, for instance, has not embarked upon the process of identifying the concrete measures and standards that States should adopt in order to facilitate external assistance, leaving this to guidelines elaborated by stakeholders. Finally, DA 17 explores the termination of assistance, improving the content of the provision adopted on the first reading in order to favor the appropriate management of this critical phase, which might negatively affect the victims of disasters.

Perspectives on the Draft Articles

The future outcome of the DAs is difficult to predict and everything will depend on comments to be received by States in view of the 2018 UNGA sessions. The UNGA’s long-established reluctance to adopt treaties on the basis of the ILC’s DAs militates against such possibility. On the other hand, the necessity to improve legal machineries and create a universal vision on disaster law is widely accepted. If States and IOs were to embark on treaty-making processes, the possibility of rendering the text more ‘operational’ might be explored, using the current DAs as a framework for basic principles and further addressing concrete issues raised by the relief phase, where the lack of a flagship treaty is more problematic. Indeed, the bottom-up approach explored in this area (or here), which requires States to render their domestic legal frameworks more ‘friendly’ to external assistance, as also endorsed by the ILC, has proven to be time-consuming and lacking in coherence.

Early comments made by States at the last session of the UNGA Sixth Committee show mixed attitudes to the final form of these DAs. First, several States made generally positive evaluations of the content of the DAs without, however, expressing themselves regarding future perspectives. This could be said to be the case for Egypt, Germany, Indonesia, Ireland, Italy, Japan, Korea, Peru, the Philippines, Romania, Slovakia, Slovenia, Spain and Thailand. Other States have already demanded a treaty, such as Argentina, Brazil, Chile, Colombia, Ecuador, El Salvador, Mexico, Portugal, Sri Lanka, or were ready to discuss this possibility (the Nordic Countries, Algeria). More cautiously, States such as Austria, France, Iran, New Zealand and Poland preferred to allow time for States and practice to ‘digest’ this text before eventually moving forwards. Conversely, doubts about a potential treaty were raised by Belarus, the Czech Republic, Israel, Malaysia, the Netherlands, Russia, Vietnam, the United Kingdom and United States, even if several of these States evaluated the content positively.

Nonetheless, as expressed by the EU, which is ready to embark on a treaty-making process, the DAs are already a “significant contribution” in this area, and are definitely expected to acquire significant standing in future legal and policy discussions related to humanitarian debates.

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Filed under: Disaster Law, EJIL Analysis
 

4 Responses

  1. Kriangsak Kittichaisaree

    Giulio,

    Thanks for this detailed account. As an ILC member and a member of the ILC Drafting Committee on this topic, I would like to explain the parameter within which the ILC worked on this particular topic.
    – The Draft Articles are never intended to be a human rights instrument.
    – The affected State has primary responsibility re the protection of persons in the event of disasters within their territory, jurisdiction or control.
    – While third parties may assist the affected State, they must respect the sovereignty of that State.
    – Therefore, there is no place for R2P in the Draft Articles.

    On 3 Nov. 2016, the UNGA expressed its appreciation to Eduardo Valencia-Ospina, ILC Special Rapporteur on this topic, by re-electing him to the ILC with the highest number of votes among all the candidates from the Latin American and Caribbean region. This was despite the fact that the Govt. of Colombia never hosted a diplomatic/campaign reception in support of his candidacy due to budgetary constraints.

  2. Kriangsak Kittichaisaree

    Correction:
    The affected State has primary responsibility re the protection of persons in the event of disasters within ITS territory, jurisdiction or control

  3. Giulio Bartolini Giulio Bartolini

    Dear Amb. Prof. Kittichaisaree,
    many thanks for your comments which I totally share. Furthermore they also permits me to address some points I was unable to analyse in-depth due to word limits.

    As highlighted in my post once I have qualified the role/sovereignty of the affected State as a “pillar” of the draft articles, I would maintain this element was carefully appreciated in the activities of the ILC due to its inherently relevance in this area. In particular, as emphasized in the commentary on the final preambular paragraph to which I was referring in my entry, the principle of sovereignty of States has properly been identified as “a core element of the draft articles. The reference to sovereignty, and the primary role of the affected State, provides the background against which the entire set of draft articles is to be understood” (ILC Comemntary 2016, A/71/10, p. 18, para. 6).

    Such a positon has also implied the constant evaluation made by the Commission on the inapplicability of the R2P doctrine to the work undertaken on this topic.
    As already emphasized in 2008 by the Special Rapporteur Dr. Valencia-Ospina in his Preliminary Report “the appropriateness of extending the concept of responsibility to protect and its relevance to the present topic required careful reflection; even if it were to be recognized in the context of protection and assistance of persons in the event of disasters, its implications were unclear” (ILC Report 2008, A/63/10, para. 222).
    The position expressed by the Special Rapporteur (largely endorsed by the plenary of the ILC in debates occurred in 2008) was subsequently echoed by the same UN Secretary-General Ban Ki-moon in his report on “Implementing the Responsibility to Protect” released in 2009 (A/63/677). Under this latter document the UN Secretary-General highlighted that “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” (ibidem, para. 10.b).

    Such an approach aiming to underline how “there is no place for R2P in the Draft Articles” (as you rightly maintain in your comment) was furthermore endorsed by several States during debates at the UNGA VIth Committee. I take the chance of this reply to highlight main positions expressed by States on this sensitive topic which might eventually be of interest for colleagues working on the R2P Doctrine.
    As for the refusal to extend the R2P doctrine to cases of disasters references could be made to comments made by: INDIA (2008 session UNGA VIth Committee, 23rd session, “The concept “Responsibility to protect” was not relevant to the topic”); CHINA (2008 session UNGA VIth Committee, 23rd session, ““Responsibility to protect” was a new concept, surrounded by uncertainty. It would not be helpful to introduce that concept into the area of disaster relief”); JAPAN (2008 session UNGA VIth Committee, 23rd session, “The emerging concept of responsibility to protect was confined to extreme circumstances, for example, where there were persistent and gross violations of human rights, such as genocide, and it should not automatically be applied to the topic of disaster relief”); MALAYSIA(2008 session UNGA VIth Committee, 23rd session, “On the question of the existence of a “responsibility to protect”, the concept as formulated in the 2005 World Summit Outcome related to the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Further discussion would be required in order to determine whether action taken by the Security Council under Chapter VII of the Charter could be invoked as authorization for humanitarian intervention. In its future work on the topic, the Commission should focus on identifying the law that currently existed, whatever its shortcomings, before attempting to develop new law”); UNITED STATES OF AMERICA (2008 session UNGA VIth Committee, 23rd session, “He wished to note his Government’s …objections to incorporating the concept of the responsibility to protect”); IRAN(2008 session UNGA VIth Committee, 23rd session “The concept of the responsibility to protect was designed to secure the protection of the civilian population from genocide, war crimes and crimes against humanity, and was therefore a completely different topic”); RUSSIAN FEDERATION(2008 session UNGA VIth Committee, 25th session “The concept of a “responsibility to protect” had no place in the topic); CZECH REPUBLIC (2009 session UNGA VIth Committee, 20th session “His delegation welcomed the exclusion of responsibility to protect from the scope of the topic”); VENEZUELA(2009 session UNGA VIth Committee, 21st session, “Her delegation did not think that the term “responsibility to protect” should be included in the draft articles); SRI LANKA (2009 session UNGA VIth Committee, 21st session, “His delegation agreed with the Special Rapporteur that the concept of to protect did not apply to disaster response”); GHANA (2009 session UNGA VIth Committee, 22nd session “The concept of responsibility to protect, however, should be excluded from the scope of the topic”); IRELAND (2009 session UNGA VIth Committee, 22nd session, “Her delegation supported draft article 2 on the purpose of the draft articles and agreed with the view of the Special Rapporteur that the concept of responsibility to protect did not apply to disaster response”); ISRAEL(2009 session UNGA VIth Committee, 23rd session, “With regard to the protection of persons in the event of disasters, she welcomed the Special Rapporteur’s conclusion that the concept of the responsibility to protect did not apply to disaster response”); COLOMBIA(2011 session UNGA VIth Committee, 22nd session, “His delegation endorsed the view that the concept of “responsibility to protect” fell outside the scope of the topic); THAILAND(2011 session UNGA VIth Committee, 24th session, “With respect to protection of persons in the event of disasters, his delegation endorsed the view that the concept of responsibility to protect must not be extended to cover the response to natural disasters and other matters relating to the topic”).
    Conversely very few States expressed an explicit support for a potential extension of the R2P doctrine to disaster scenarios. This was the case for POLAND(2008 session UNGA VIth Committee, 24th session, “His delegation saw no compelling reason why the responsibility to protect could not be extended to disaster situations”) and PORTUGAL(UNGA VIth Committee, 25th session “The concept of “responsibility to protect” must also be taken into account).
    As a result I would maintain the ILC was on the right path in addressing this issue, even contributing to consolidate/clarify positions adopted by other entities on this sensitive topic.

    Similarly I fully agree with you on the impossibility for the DAs to be a human rights instrument. Such an option would have implied for the ILC the need to embark on a very time-consuming process aiming to restate/clarify existing human rights obligations potentially relevant in disaster scenarios. The choice made through current DAs 4 and 5 has thus permitted to introduce “a reminder of the duty of States to ensure compliance with all relevant human rights obligations applicable both during the disaster and the pre-disaster phase” (2016 ILC Report, p. 31, para. 1). Such an approach was properly justified by the Commission in subsequent sections of the relevant Commentary, aimed to highlight how “The Commission did not consider it feasible to draw up an exhaustive list of all potentially applicable rights and was concerned that such a list could lead to an a contrario interpretation that rights not mentioned therein were not applicable” (ibidem, p. 32, para. 5).

    Nonetheless a comparison between the content of the Commentary adopted on first reading in 2014 with the final version endorsed by the ILC last summer could permit to appreciate a more structured attention paid by the ILC to significant elements in this area, as the addition of several examples to particularly relevant rights (ibidem, p. 32, para.6 and furthermore p. 53-54, paras. 3-4). Similarly the final text of DA 5 (“Persons affected by disasters are entitled to the respect for and protection of their human rights in accordance with international law”) introduces further nuances with regard to the original version of this provision as adopted in 2014 (“Persons affected by disasters are entitled to respect for their human rights”). Personally I would maintain the current version permits to better emphasise how in case of disasters pertinent obligations might extend from negative duties not to interfere with individual’s rights to positive obligations aiming to request proactive actions to guarantee respect for human rights.

    I hope abovementioned information could permit to better clarify my approach and support your evaluations/comments I substantially share.

    As for your final caveat on the re-election of Dr. Valencia-Ospina I cannot but totally agree with your appraisal for his re-election having had the privilege to support his activities at the ILC in the last years. However both the entry and this reply only reflect my personal views.

  4. Johanna

    Dear Mr. Bartolini,
    Which status do the Draft Articles have now? Are they considered to be soft law?

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