EJIL: Talk!

Blog of the European Journal of International Law

Articles posted by Giulio Bartolini

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

Published on December 2, 2016 Author: Giulio Bartolini

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. here, here), 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. Read the rest of this entry…

Filed under: Disaster Law, EJIL Analysis

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The ‘Compliance Track’ on a Track to Nowhere

Published on January 22, 2016 Author: Giulio Bartolini

The 32^nd International Conference of Red Cross and Red Crescent (IC), held from 8^th to 10^th December 2015 and bringing together delegations from States Party to the Geneva Conventions (GCs), National Red Cross and Red Crescent Societies, the ICRC and the IFRC, has already attracted some comments (here and here). A little-explored topic to date has been the adoption of Resolution 2 on “Strengthening compliance with international humanitarian law”. This Resolution was linked to the so-called ‘compliance track’: an initiative managed by the ICRC and Switzerland, aimed at identifying options to improve the implementation of IHL.

A draft resolution circulated in October 2015 recommended that States create a new compliance mechanism, the so-called “Meeting of States on IHL” (MoS), and identified the key elements proposed for that mechanism. This draft resolution was also accompanied by a Concluding Report, providing insights into the consultation process and emphasizing the questions still pending. However, delegations at the International Conference were unable to reach a consensus on this new mechanism. Operative paragraph (OP) 2 of Resolution 2 adopted at the International Conference merely recommends “the continuation of an inclusive, State-driven inter-governmental process based on the principle of consensus…to find agreement on features and functions of a potential forum of States…in order to submit the outcome of this intergovernmental process to the 33^rd International Conference”. The Resolution reiterates a series of guiding principles intended to inform further discussions. This post will describe the key features of the proposed Meeting of States. It will be noted that the proposals which were put to the International Conference, but not adopted, contained only a minimal option for strengthening compliance with IHL, though it would have had the merit of planting a tiny seed in the IHL system, with an eye to its possible ripening into a fruit.

The path towards the 32^nd International Conference

The ‘compliance track’ was developed following the adoption of Resolution 1 at the 31^st IC held in 2011, where the ICRC (later joined by Switzerland) was entrusted with pursuing consultations to enhance the effectiveness of IHL compliance mechanisms. A shared skepticism on the effectiveness of some existing mechanisms (such as Protecting Powers, Enquiry Procedures, Meeting of the High Contracting Parties, or the IHFFC) lay behind this request. In particular, as such mechanisms were designed for international armed conflicts and are dependent on States’ consent for their activation, they have barely functioned as envisaged. States’ discomfort with the increasing proliferation of (sometimes) proactive compliance mechanisms operating outside the realm of IHL, such as human rights bodies, was an additional element in favor of the possible development of new mechanisms for implementing compliance with IHL. Read the rest of this entry…