The ILC Codification Project on the “Protection of Persons in the Event of Disasters”

© Springer International Publishing Switzerland 2015
Pat Gibbons and Hans-Joachim Heintze (eds.)The Humanitarian Challenge10.1007/978-3-319-13470-3_9

9. The ILC Codification Project on the “Protection of Persons in the Event of Disasters”

Hans-Joachim Heintze 

Ruhr University Bochum, Bochum, Germany



Hans-Joachim Heintze

9.1 Introduction

Disasters frequently occur in all regions of the world and affect large numbers of individuals. They may have a disruptive impact on people, infrastructure and economies. Disasters in times of peace or war endanger life, health, and the physical integrity of human beings. They have disproportional consequences in vulnerable poorer societies because they deepen their poverty. In 2006, the UN counted 227 natural disasters resulting in over 23,000 deaths worldwide.1 The 2004 Indian Ocean Tsunami was one of the worst disasters of the last century. It manifested the shortcomings of the international reaction concerning international protection of persons in critical situations. Disasters like cyclone Nargis that struck Myanmar in 2008 or the earthquake in Haiti in 2010 exposed a range of problems relating to domestic and international response. The legal dimension depends on the severity of the humanitarian crises that the disaster has caused. However, there is no international consensus “on how great a catastrophe has to be in order to be considered a disaster for legal purposes, nor is there any agreement on what criteria should be used to measure its scale” (Focarelli 2013, para. 7). This has important consequences because the question arises whether there is an obligation or entitlement for the international community to have access to the victims and to offer or even enforce humanitarian assistance. Some authors argue that humanitarian assistance is “nowadays … a necessary element to reach, in the words of the UN Secretary General, ‘Global Peace’, which requires the solution of social, economic, cultural and humanitarian problems. Therefore, any obstacle to the delivery of aid is correctly considered a danger to international peace and security” (Giuffrida 2013, p. 294).

Even if one does not share the far reaching interpretation of the UN practice concerning obstacles to the delivery of humanitarian assistance by Giuffrida, there is no doubt that the victims of natural and man-made disasters need immediate help. Thus, their protection has been a subject of concern since time immemorial. De Vattel observed as early as 1758 that all those who have provisions to spare should assist nations suffering from famine as an instinctive “act of humanity” (de Vattel 1758, paras. 4–5). This humanitarian assistance covers both the help provided from the affected State itself as well as the assistance coming from abroad. The non-action of states can, in such emergency situations, amount to a violation of international law, the principle of humanity and fundamental human rights. Therefore, very often the question of an international involvement arises which entails fundamental legal problems. The assistance to victims of disasters occurs according to the principle of humanity and the lack of a major multilateral treaty on this issue is somehow contradictory since there is an extensive body of international humanitarian law applicable to victims of armed conflicts. Several codification attempts have been made in the 1980s without success. In 1990 the UN assessed that donors, recipient governments and international organisations have expressed their opinion “on the desirability of new legal instruments in order to overcome the obstacles in the way of humanitarian assistance.”2 However, some non-governmental organisations argued that such an initiative carries the risk of weakening the progress already achieved over the years in providing humanitarian assistance. These organisations assumed that some governments would reinforce the insistence on the concept of national sovereignty and thus render a codification counterproductive.3 The proposal of a convention on the deployment and utilisation of urban search and rescue teams was subsequently drafted, but in 2002 it was replaced by the General Assembly Resolution A/57/150 which contains the Guidelines for the International Search and Rescue Advisory Group. Thus, the entire discussion on the issue has been dominated by the insistence of some governments on the principle of non-interference in their internal affairs. The work of the private International Law Association, too, in the 1980s did not tackle the big problems of sovereignty, especially the question as to whether States have a duty to undertake or accept relief (International Law Association 1980, p. 530). Recent developments in the field of human rights law like R2P pose challenges to the principles of State sovereignty and non-interference and raise the question as to whether States are entitled to refuse to admit and facilitate international assistance despite severe human suffering.

Against this background the Codification Division of the Office of Legal Affairs of the United Nations Secretariat submitted proposals on ‘International Disaster Relief Law’ (IDRL) to the International Law Commission (ILC) in 2006. The UN identified the need for the systematisation of international law in the context of disaster relief for responding to such tragic calamities and to overcome obstacles to the provision of effective assistance. The ILC is an organ of the UN General Assembly and its Statute provides that the “Commission shall have for its object the promotion of the progressive development of international law and its codification.”4 Progressive development means the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States, and codification includes the more precise formulation and systematisation of rules of international law, in fields where there already has been extensive State practice, precedent and doctrine. The ILC represents the latest attempt to define the obligations of States “to accept disaster relief without going so far as to justify forced humanitarian intervention” (Benton Heath 2011, p. 423).

9.2 Framework of the Codification by the International Law Commission (ILC)

The ILC decided in 2007 to include the topic in its current program of work and appointed Mr. Eduardo Valencia-Ospina as Special Rapporteur.5 Upon his appointment, the Special Rapporteur undertook efforts to establish contacts with interested governmental and non-governmental organisations, including the Representative of the Secretary-General on the human rights of internally displaced persons, the Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator, Office for the Coordination of Humanitarian Affairs, and officials of what is now called the Disaster Law Programme of the International Federation of Red Cross and Red Crescent Societies (IFRC).

The Commission requested the UN-Secretariat to prepare a background study, initially limited to natural disasters, on the topic, “Protection of persons in the event of disasters”.6 The detailed study provides an overview of existing legal instruments and texts applicable to a variety of aspects of disaster prevention and relief assistance. Furthermore, the study analyses the rules on the protection of persons in the event of disasters and confirms that no generalised multilateral treaty exists on the topic. The only universal multilateral treaty directly related to disaster response was the Statute of the International Relief Organization of 1927 which is no longer in force.7 However, a number of relevant rules have been codified in some specialised multilateral treaties as well as in over 150 bilateral treaties and memorandums of understanding. Among them the “Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations” of 18 June 19988, this is significant because it provides legal rules on the use of telecommunication for humanitarian assistance activities during disasters. The Convention deals with the coordination of the assistance and especially with the overcoming of bureaucratic restrictions. The second treaty to be mentioned in that connection is the “Framework Convention on Civil Defence Assistance” which entered into force in 2001. From other sources of law, there are over 100 national laws directly concerning the topic.9

Humanitarian assistance was often addressed by the UN. In 1971 the Secretary-General emphasised in a report on Assistance in Cases of Natural Disaster that the primary responsibility of the affected government was to protect the life, health and property of people within the frontiers and to maintain essential public services. Humanitarian assistance from the international community can only be supplementary. The concept of ‘primary responsibility’ was endorsed in several UN General Assembly Resolutions.10 The UN General Assembly discussed the issue again in 1991 and adopted the Resolution 46/182, which reflects the conservative approach of the world organisation.

The document underlines that:

  • Humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality;

  • The sovereignty, territorial integrity and national unity of States must be fully respected. Thus humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country;

  • Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence, the affected State has the primary role in the initiation, organisation, coordination, and implementation of humanitarian assistance within its territory; and

  • The magnitude and duration of many emergencies may be beyond the response capacity of many affected countries. International cooperation to address emergency situations and to strengthen the response capacity of affected countries is thus of great importance. Such cooperation should be provided in accordance with international law and national laws.

The UN resolution concludes by emphasising its central and unique role in providing leadership and coordination of the efforts of the international community to support the affected countries.

Other documents deal with measures to expedite international relief. The body of these instruments justifies the assessment of an expanding regulatory framework. At the centre are the principles of sovereignty and non-intervention. Therefore, any disaster relief carried out by assisting actors is subject to the consent of the receiving State and that the receiving State has the primary responsibility for the protection of persons on its territory or subject to its jurisdiction or control during a disaster. A relatively recent development is the recognition of the need for disaster prevention, mitigation and preparedness.

9.3 Challenge of the ‘Sovereignty’ Concept and Politicisation

Sovereignty is a cornerstone of international law. The sovereign State exercises exclusive jurisdiction over matters within its territory. Other States are not allowed to interfere in the internal affairs of sovereign States. If they intervene they commit a violation of international law and the affected State can react by proportional sanctions. However, the intervention to protect human beings in emergencies from their sovereign is an old concept first mentioned by the father of modern international law, Hugo Grotius (Valek 2005, p. 1223). The recent discussions about humanitarian interventions and the concept of the Responsibility to Protect (R2P) seek to offer a solution in cases of massive human rights violations and the sovereignty claim of a State. The access to victims in disasters may also involve conflicts with the sovereignty entitlements of the affected State because the respect for State sovereignty is a central principle applicable to relief actions. However, sovereignty is subject to the obligation to comply with international law. Therefore the principle of sovereignty does not constitute a legal barrier which inhibits international humanitarian assistance, but “a necessary pre-condition for the exercise of meaningful cooperation within the community of States” (Macalister-Smith 1985, p. 56). Indeed, international humanitarian assistance describes the new law of cooperation and solidarity among nations which means also a kind of rediscovery of the ethical and religious foundations of public international law. Solidarity is a value-driven principle with a strong ethical underpinning (Wellens 2010, p. 5). Human rights as well as humanitarian assistance are parts of that ethical underpinning. Thus, the questions arise in which way these rights can be implemented in the event of natural disasters. Practice and theory offer different answers.

In the 1980s some French health practitioners who founded Médecins Sans Frontiers in 1971 and other experts introduced the concept of the droit d’ingérence (right of interference) or even the duty of interference. The central tenet was that humanitarian actors have a right of access to victims of humanitarian emergencies, whether man-made or natural, including a right to innocent passage through humanitarian corridors. The duty of interference was understood as a moral obligation of third parties to provide assistance to victims. The duty should be applied if the affected State proves unable or unwilling to supply adequate protection to its own people: “It was assumed that in humanitarian crises the focus should shift from classical reciprocal inter-State obligations to the right of the victims themselves to be assisted, from within or from without if need be” (Focarelli 2013, para. 2).

However, this new approach was only reflecting a concept of some non-governmental organisations with some support of the French government. The international community was reluctant as Resolution 43/131 proves. The UN General Assembly adopted Resolution 43/131 on 8 December 1988 upon a proposal by France. The Resolution on humanitarian assistance to victims of natural disasters and similar emergency situations repeats the sovereignty-friendly approach that the first and foremost obligation of the State is to take care of the victims of natural disasters occurring on its territory. The original French draft went much further by mentioning the right to assistance as a right of any individual. This approach was not accepted by the majority of States because of its neo-colonialist implications. Thus, the final text of the resolution only mentioned that “the abandonment of the victims of natural disasters … without humanitarian assistance constitutes a threat to human life and an offence to human dignity”.

This statement allows different interpretations and some uncertainty in legal terms. Nevertheless, some commentators argue that the primary role of the affected State amounts to an obligation to respect and protect certain fundamental rights, such as the right to life and to implement other basic needs. Focarelli argues that the failure of the affected State to do so has been assumed to entitle third parties to exercise their right of interference and of access to victims and he supports his argument with reference to the practice of the UN Security Council (Focarelli 2013, para. 3). Paragraph 3 of Resolution 688 (1991) reads: “The Security Council … insists that Iraq allows immediate access by international humanitarian organisations to all those in need of assistance in all parts of Iraq and make available all necessary facilities for their operations.”

The UN Security Council followed suit, but exclusively in respect to armed conflict situations because humanitarian assistance in armed conflicts is guided by the so-called humanitarian principles of impartiality and neutrality, which have their legal basis in Art. 70 of Additional Protocol I to the Geneva Conventions (1977)11 and respective customary international law (Spieker 2013). This legal basis is only applicable in armed conflicts and not in cases of natural or man-made disasters. Therefore, it is at least controversial for one to use this obligation in armed conflicts as a justification to enforce humanitarian assistance in situations other than armed conflicts. In the case of the cyclone Nargis that struck the southern part of Myanmar with devastating force on 2 May 2008, the UN Security Council failed to take action under Chapter VII of the UN Charter, despite a French proposal for a resolution authorising the delivery of aid to the people in Myanmar without the government’s consent (Focarelli 2013, para. 28). Frustrated by the government of Myanmar’s the refusal to accept international assistance, the French government invoked R2P as the basis to impose the delivery of aid. However, the international community was able to find non-coercive ways for a co-ordinated humanitarian response (Barber 2009, p. 4).

The example of cyclone Nargis and the French attempt to enforce humanitarian assistance reflects that aid is not divorced from politics. After all, besides the humanitarian organisations, a range of other actors such as government representatives, UN organisations or multinational forces are also involved in the provision of aid, all of whom pursue political interests.

A key factor in the politicisation of humanitarian aid is that when major disasters occur, cooperation between the aid agencies and assisting countries is unavoidable. In such cases, the mandate governing the operation, which is decided at political level, invariably clashes with the principles of independence, impartiality and neutrality that govern the work of humanitarian non-governmental organisations.

Furthermore, the mass media also have a politicising effect, since politicians and non-governmental organisations are keen to show themselves in a good light. Aid agencies are heavily dependent on donations to carry out their relief operations and rely on the media to broadcast their appeals and reach their target audience. Indeed, humanitarian assistance is popular with the general public in countries that provide relief, and the public offers generous emotional and financial support for “humanitarian” operations. When it comes to securing a share of the available funds, however, there are no holds barred: all the humanitarian agencies attempt to exert influence and compete to raise their profile via the mass media. This makes it almost impossible to present a more detailed, critical and nuanced picture.

Natural disasters in States governed by military dictatorships should not be seen as an opportunity to voice criticism of conditions in these countries. The cyclone which caused devastation in Myanmar (USAID 2008, p. 1), for example, became a vehicle for a political campaign against the country’s leaders, who had brutally crushed opposition to the regime the previous year. After the cyclone, the country’s military leaders refused to allow international aid organisations to operate freely in the country. This prompted sharp criticism from the Western countries, with French Foreign Minister Bernard Kouchner even calling for the R2P to be invoked as the basis for the delivery of humanitarian aid, if necessary against the will of the military government. As a consequence of this campaign, the real issue, namely the relief operation itself, largely faded from view. In fact, humanitarian organisations were able to deliver their aid as far as the—albeit completely overstretched—airport in Rangoon. From there, it was transported into the affected areas by local staff, with whom the aid agencies had been cooperating very effectively for many years (IFRC 2011). Humanitarian aid workers from Australia said that local staff in Myanmar were getting some aid through to people but complained that western specialists and cargo planes had been unable to land and to unload supplies (McLachlan-Bent and Langmore 2011, p. 41).

The Western political approach did not encourage the Myanmar military leaders to warm to the idea of external assistance. Moreover, the colonial history of the West and their intervention in Iraq did not improve its credibility in the eyes of the paranoid dictators (Selth 2008, p. 385). The politically motivated campaign against Myanmar’s leaders tended to disrupt the provision of aid. The fact that the country’s leaders used the relief operation to gain the goodwill of the people and therefore concealed the actual origin of the goods by re-labelling them (International Crisis Group 2008, p. 8) did not alter the fact that aid did arrive in the country and that it was inappropriate to use the crisis as an opportunity to voice criticism of its leaders. The outcome of the political campaign against the military leaders was a regrettable decline in the willingness to donate on the part of the public in the donor States, who had gained the impression that the aid was not reaching the victims.

Politicians must resist the temptation to link humanitarian aid for victims of a natural disaster with political demands for regime change or improvements in the human rights situation. Access to the media must be used solely to draw attention to the humanitarian crisis and thus encourage the general public to give the requisite support to the relief operation. However, besides the issue of politicisation, one has also to take in consideration that a natural disaster like Nargis would be extremely difficult for even the most prepared States to respond to effectively (McLachlan-Bent and Langmore 2011, p. 38).

9.4 Right to Humanitarian Assistance

Disasters have a human rights dimension because their consequences can influence the enjoyment of rights by those affected. Disasters have effects on the right to life and on social and cultural rights. Issues like access to assistance, relocation and property restitution arises. The most important question is that of the right to humanitarian assistance.

The UN considers the right to humanitarian assistance to be part of a new international humanitarian order.12 The authors of a UN study argue that reference to the right to humanitarian assistance is made in Article 25 of the Universal Declaration of Human Rights of 1948 (UDHR) as well as in Article 11 of the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR).13 Moreover a number of human rights treaty norms apply to natural disaster situations, especially those protecting the right to life, the right to food, the right to health services and, more generally, the right to meet the victims’ basic needs.

According to the UDHR everyone has the right to a standard of living adequate for the health and well-being of the person and the family. The ICESCR recognises the right of everyone to an adequate level of living, including food, clothing and housing and the continuous improvement of living conditions. The General Comment 12 of the Committee on Economic, Social and Cultural Rights (CESCR) expressly stipulates that “this obligation also applies for persons who are victims of natural or other disasters” (para. 15).

Only gold members can continue reading. Log In or Register to continue