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

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.

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.