187
PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
[Agenda item 8]
DOCUMENT A/CN.4/615*
Second report on the protection of persons in the event of disasters,
by Mr. Eduardo Valencia-Ospina, Special Rapporteur
[Original: English]
[7 May 2009]
* Incorporating A/CN.4/614/Corr.1.
CONTENTS
Page
Multilateral instruments cited in the present report ......................................................................................................................................... 187
Works cited in the present report ..................................................................................................................................................................... 188
Paragraphs
IntroductIon............................................................................................................................................................................ 1–14 188
Chapter
I. defInInG the scoPe of the toPIc.................................................................................................................................. 15–49 191
A. Ratione materiae................................................................................................................................................. 16–27 191
1. Rights and needs in the protection o persons in the event o disasters ..................................................... 16–18 191
2. The dual nature of the protection of persons in the event of disasters ....................................................... 19–27 191
B. Ratione personae: States and non-State actors ................................................................................................... 28 193
C. Ratione temporis: pre-disaster, disaster proper and post-disaster action ............................................................ 29–30 193
Draft article 1. Scope ....................................................................................................................................... 30 193
D. Dening disaster ................................................................................................................................................. 31–49 193
Drat article 2. Denition o disaster ............................................................................................................... 45 195
II. solIdarIty and cooPeratIon ....................................................................................................................................... 50–70 196
Drat article 3. Duty to cooperate .................................................................................................................... 70 200
III. future worK ............................................................................................................................................................... 71 200
Multilateral instruments cited in the present report
Source
Convention on the Prevention and Punishment of the Crime of Genocide (Paris,
9 December 1948)
United Nations, Treaty Series, vol. 78,
No. 1021, p. 277.
Vienna Convention on Consular Relations (Vienna, 24 April 1963) Ibid., vol. 596, No. 8638, p. 261.
International Covenant on Economic, Social and Cultural Rights (New York,
16 December 1966)
Ibid., vol. 993, No. 14531, p. 3.
Arican Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981) Ibid., vol. 1520, No. 26363, p. 217.
Vienna Convention or the Protection o the Ozone Layer (Vienna, 22 March 1985) Ibid., vol. 1513, No. 26164, p. 293.
Convention on Assistance in the Case o a Nuclear Accident or Radiological Emergency
(Vienna, 26 September 1986)
Ibid., vol. 1457, No. 24643, p. 133.
188 Documents o the sixty-rst session
Source
Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal, 16 September 1987) Ibid., vol. 1522, No. 26369, p. 3. For the
nal amended version o the Protocol,
see Handbook or the Montreal
Protocol on Substances that Deplete
the Ozone Layer, 8th ed. (UNEP,
2009), sect. 1.
Agreement establishing the Caribbean Disaster Emergency Response Agency (Port o Spain,
26 February 1991)
Ibid., vol. 2256, No. 40212, p. 53.
Inter-American Convention to Facilitate Disaster Assistance (Santiago, 7 June 1991) OAS, Ocial Documents, OEA/Ser.A/49
(SEPF), p. 13.
Tampere Convention on the Provision o Telecommunication Resources or Disaster Mitigation
and Relief Operations (Tampere, 18 June 1998)
United Nations, Treaty Series, vol. 2296,
No. 40906, p. 5.
Framework Convention on Civil Defence Assistance (Geneva, 22 May 2000) Ibid., vol. 2172, No. 38131, p. 213.
ASEAN Agreement on Disaster Management and Emergency Response (Vientiane,
26 July 2005)
ASEAN Documents Series 2005, p. 157.
Convention on the Rights o Persons with Disabilities (New York, 13 December 2006) United Nations, Treaty Series, vol. 2515,
No. 44910, p. 3.
Works cited in the present report
BaBović, Bogdan
“The duty of States to cooperate with one another in accordance with
the Charter”, in Milan Šahović, ed., Principles o International
Law Concerning Friendly Relations and Cooperation.
Belgrade, Institute o International Politics and Economics,
1972, pp. 277–321.
BecK, Ulrich
Risk Society: Towards a New Modernity. Translated by Mark Ritter.
London, Sage Publications, 1992. 266 p.
Bernard, Mountague
“On the principle o non-intervention”. A lecture delivered in the
hall o All Souls’ College. Oxord, Parker, 1860. 36 p.
fIscher, Horst
“International disaster response law treaties: trends, patterns, and
lacunae”, International Disaster Response Laws, Principles
and Practice: Refections, Prospects and Challenges. Geneva,
International Federation of Red Cross and Red Crescent
Societies, 2003, pp. 24–44.
GIddens, Anthony
“Afuence, poverty and the idea o a post-scarcity society”.
Discussion Paper No. 63. UNRISD, 1995.
hart, Herbert Lionel Adolphus and Tony honoré
Causation in the Law. 2nd ed. Oxord, Clarendon Press, 1985.
516 p.
hume, David
A Treatise o Human Nature. 2nd ed. Oxford, Clarendon Press, 1978
(reprint o 1739). 743 p.
InstItute of InternatIonal law
Yearbook. Vol. 70, Part II, session o Bruges, 2003, second part,
Paris, Pedone.
macdonald, Ronald St. John
“The principle o solidarity in public international law”, in
C. domInIcé, R. Patry and C. reymond, eds., Études de droit
international en l’honneur de Pierre Lalive. Basel, Helbing &
Lichtenhahn, 1993, pp. 275–307.
mIll, John Stuart
A System o Logic, Ratiocinative and Inductive, being a Connected
View o the Principles o Evidence and the Methods o Scientic
Investigation. Book III, chap. V, p. 327, para. 3, in J. M. roBson,
ed., Collected Works o John Stuart Mill, vol. VII. Toronto,
University o Toronto, 1974. 638 p.
uvIn, Peter
Human Rights and Development. Bloomeld (Connecticut),
Kumarian Press, 2004. 241 p.
werner,Wouter G.
“State sovereignty and international legal discourse”, in Ige
F. deKKer and Wouter G. werner, eds., Governance and
International Legal Theory. Leiden, Nijho, 2004. pp. 125–157.
Introduction*
1. The present report on the protection of persons in the
event of disasters is preceded by a preliminary report on
the same topic,1 submitted by the Special Rapporteur at
* The Special Rapporteur expresses his appreciation for their assistance
in the preparation o the present report to: Arjen Vermeer, PhD
candidate, T.M.C. Asser Institute, The Hague; René Urueña, PhD candidate,
and J. Benton Heath, JD candidate, New York University Law
School, New York.
1 Yearbook … 2008, vol. II (Part One), document A/CN.4/598.
the sixtieth session of the International Law Commission
in May 2008, ollowing the Commission’s decision at its
ty-ninth session in 20072 to include the topic in its current
programme o work.
2. The preliminary report dealt in a general way with
the scope of the topic, in order to properly circumscribe
2 Yearbook … 2007, vol. II (Part Two), p. 98, para. 375.
196 Documents o the sixty-rst session
48. Similarly, the denition does not distinguish
between natural and man-made events, recognizing that
disasters often arise from complex sets of causes that may
include both wholly natural elements and contributions
rom human activities. Armed conficts are expressly
excluded, with the understanding that a well-developed
body of law exists to cover such situations.
49. Finally, the definition excludes an inquiry into
causation. Disasters generally arise rom a complex
set o actors, making virtually impossible any eort
to identiy a single suicient cause. Furthermore, in
the light o this topic’s ocus on protection o persons,
the inquiry into a calamity’s root cause is immaterial.
The disruption itsel, not the originating causal
phenomena, gives rise to the need or protection. This
deinition, ocusing on the disruption and its particular
harms, builds the most appropriate framework
to explore the rights and obligations relating to protection
of persons.
chaPter II
Solidarity and cooperation
50. The underlying principles in the protection o persons
in the event of disasters are those of solidarity and
cooperation, both among nations and among individual
human beings. It is in the solidarity inspired by human
suering that the Commission’s mandate nds telos, as
an expression o our common heritage in a global context.
51. In such a context, eective international cooperation
is indispensable for the protection of persons in
the event of disasters. As has been observed by the
Secretary-General:
The belie in the dignity and value o human beings as expressed
in the preamble of the Charter of the United Nations is and must be
the prime motive or the international community to give humanitarian
assistance. The concept of international solidarity so often evoked following
major emergencies and understood as a eeling o responsibility
towards people in distress equally has its roots in the ethical principles
of the Charter. Solidarity in this sense is not charity.71
More recently, the independent expert on human rights
and international solidarity held that:
International solidarity and international cooperation are based on
the foundation of shared responsibility. In the broadest sense, solidarity
is a communion of responsibilities and interest between individuals,
groups and States, connected by the ideal o raternity and the notion
of cooperation. The relationship between international solidarity and
international cooperation is an integral one, with international cooperation
as a core vehicle by which collective goals and the union o interests
are achieved.72
An expression of the principle of solidarity can be found
in the 2005 Hyogo Declaration:
We are determined to reduce disaster losses of lives and other social,
economic and environmental assets worldwide, mindful of the importance
of international cooperation, solidarity and partnership, as well as
good governance at all levels.73
52. The duty to cooperate is well established as a principle
of international law and can be found in numerous
international instruments. The Charter of the
United Nations enshrines it, not least with reference to the
humanitarian context in which the protection of persons
71 A/45/587, para. 5.
72 A/HRC/9/10, para. 6. See also General Assembly resolution
46/182 o 19 December 1991, annex, guiding principles, para. 5.
73 A/CONF.206/6 and Corr.1, chap. I, resolution 1, th preambular
paragraph.
in the event of disasters places itself.74 Article 1, paragraph
3, o the Charter clearly spells out as one o the
purposes o the Organization:
To achieve international cooperation in solving international problems
of an economic, social, cultural, or humanitarian character, and
in promoting and encouraging respect or human rights and or undamental
reedoms or all without distinction as to race, sex, language,
or religion.
Articles 55 and 56 o the Charter elaborate on Article 1,
paragraph 3, with respect to international cooperation.
Article 55 o the Charter reads:
With a view to the creation o conditions o stability and well-being
which are necessary or peaceul and riendly relations among nations
based on respect or the principle o equal rights and sel-determination
of peoples, the United Nations shall promote:
a. Higher standards o living, ull employment, and conditions
o economic and social progress and development;
b. Solutions of international economic, social, health, and
related problems; and international cultural and educational
cooperation; and
c. Universal respect or, and observance o, human rights and
fundamental freedoms for all without distinction as to race, sex, language,
or religion.
Article 56 o the Charter reads:
All Members pledge themselves to take joint and separate action in
cooperation with the Organization or the achievement o the purposes
set orth in Article 55.
53. The general duty to cooperate was reiterated as one
of the principles of international law in the Declaration on
Principles o International Law concerning Friendly Relations
and Cooperation among States in accordance with
the Charter o the United Nations in the ollowing terms:
States have the duty to cooperate with one another, irrespective of
the differences in their political, economic and social systems, in the
various spheres of international relations, in order to maintain international
peace and security and to promote international economic
stability and progress, the general welare o nations and international
cooperation free from discrimination based on such differences.75
74 See Yearbook … 2008, vol. II (Part One), document A/CN.4/590,
para. 17 and ootnote 57.
75 General Assembly resolution 2625 (XXV) o 24 October 1970,
annex, para. 1.
Protection of persons in the event of disasters 197
As interpreted by one author, this obligation “consecrat[es]
the solidarity o nations”.76
54. Solidarity as an international legal principle, and
distinct rom charity, gives rise to a system o cooperation
in urtherance o the notion that justice and the
common good are best served by policies that benet
all nations.77 Seen in this light, it can also be traceable
in the context of international environmental law, in
relation to the role o the developing world. Thus, the
Stockholm Declaration proclaimed that nations must
undertake a coordinated effort to preserve and safeguard
natural resources, insoar as environmental protection
“aects the well-being o peoples and economic
development throughout the world”.78 Recognizing that
“environmental deciencies generated by the conditions
o under-development and natural disaster pose
grave problems”, the Declaration calls or accelerated
development through nancial and technological assistance.
79 The Declaration further provides that developed
countries shall provide, and developing countries shall
assist in promoting, scientic inormation and expertise
relevant to mitigating environmental degradation.80 The
duties placed on developed and developing States alike
are premised on the recognition that global environmental
problems “will require extensive cooperation among
nations”81 with the specic understanding that “industrialized
countries should make eorts to reduce the gap
[between] themselves and the developing countries”.82
Moreover, the Rio Declaration on Environment and
Development, rearming Stockholm, prioritizes the
concerns o developing countries, stating that the “special
situation and needs o developing countries, particularly
the least developed and those most environmentally
vulnerable, shall be given special priority”.83
55. Subsequent instruments implemented this obligation
to cooperate, establishing mechanisms to share inormation,
nances and scientic resources. The Vienna
Convention or the Protection o the Ozone Layer, or
example, mandates cooperative research and information-
sharing among all States parties to the Convention.
In 1990, the amending Montreal Protocol on Substances
that Deplete the Ozone Layer ullled theVienna Convention’s
promise to take into account the “circumstances and
particular requirements o developing countries”. Developing
countries are given leniency with respect to certain
proscribed or regulated chemicals,84 and the Protocol
mandates that developed nations shall provide nancial
76 B. Babović, “The duty o States to cooperate with one another in
accordance with the Charter”, at p. 289.
77 See generally MacDonald, “Solidarity in the practice and discourse
o public international law”, at p. 275.
78 Declaration of the United Nations Conference on the Human
Environment, Report o the United Nations Conerence on the Human
Environment, Stockholm, 5–16 June 1972 (United Nations publication,
Sales No. E.73.II.A.14), and corrigendum, chap. I.
79 Ibid., principle 9.
80 Ibid., principle 20.
81 Ibid., para. 7.
82 Ibid., para. 4.
83 Report of the United Nations Conerence on Environment and
Development Rio de Janeiro, 3–14 June 1992 (United Nations publication,
Sales No. E.93.I.8 and corrigenda), principle 6.
84 Art. 5, paras. 1–3.
assistance and technology to less-developed nations.85
The Protocol establishes a multilateral fund to motivate
participation by developing countries.86 In turn, developing
nations are bound to pollution control measures, and
the parties to the Convention are empowered to invoke
non-compliance procedures where appropriate.87
56. As noted above, solidarity is an important element
o cooperation towards solving economic problems, as
put orward in Article 1, paragraph 3, o the Charter
of the United Nations and in the 1970 Friendly Relations
Declaration.88 The Declaration recognizes a duty
of States to cooperate with one another, and provides
that “States should cooperate in the promotion of economic
growth throughout the world, especially that o
the developing countries”.89 This concept was brought to
the fore and expanded by the Declaration on the Establishment
of a New International Economic Order.90 The
Declaration is based upon a duty of States to cooperate
“in the solving o world economic problems … bearing
in mind the necessity to ensure accelerated development
o all the developing countries”.91 And further holds that
“cooperation or development is the shared goal and
common duty o all countries”.92
57. Solidarity as an international legal principle ound
refection beyond the 1974 Declaration. The Declaration
of International Economic Cooperation, adopted by the
General Assembly in 1990, notes the interdependence of
the international community93 and recognizes that reviving
growth in developing countries requires “a concerted
and committed eort by all countries”.94 Most recently,
the United Nations Millennium Declaration places solidarity
among the undamental values essential to international
relations.95 The declaration further elaborates on its
invocation of solidarity:
Global challenges must be managed in a way that distributes the
costs and burdens fairly in accordance with basic principles of equity
and social justice. Those who suer or who benet least deserve help
rom those who benet most.96
58. Solidarity is also refected in regional instruments.
The Arican Charter on Human and Peoples’ Rights
establishes that individuals and groups should dispose o
their wealth “with a view to strengthening Arican unity
and solidarity”97 and guarantees the right to social and
85 Arts. 10 and 10A; see also article 5, paragraph 5 (noting that
developing nations’ compliance with the Protocol’s control measures
will be contingent on developed countries’ willingness to provide nancial
and technological assistance).
86 Art 10.
87 Art 5.
88 General Assembly resolution 2625 (XXV) o 24 October 1970,
annex.
89 Ibid.
90 General Assembly resolution 3201 (S–VI) o 1 May 1974.
91 Ibid., para. 4 (c).
92 Ibid., para. 3.
93 General Assembly resolution S–18/3 o 1 May 1990, annex,
para. 12.
94 Ibid., para. 21.
95 See General Assembly resolution 55/2 o 8 September 2000,
para. 6.
96 Ibid.
97 Arican Charter on Human and Peoples’ Rights, art. 21, para. 4.
198 Documents o the sixty-rst session
economic development.98 It also establishes a right to a
“satisactory environment”99 and the duty of the individual
to promote social and national solidarity.100
59. The international cooperation imperative is rmly
rooted in international instruments of a humanitarian character.
As noted above, the duty to cooperate in the context
o human rights has been explicitly embodied in Article 1,
paragraph 3, o the Charter o the United Nations. Likewise,
it has been reiterated in numerous General Assembly
declarations and resolutions. Thus, for example, the
Friendly Relations Declaration proclaims:
States shall cooperate in the promotion of universal respect for, and
observance o, human rights and undamental reedoms or all, and in
the elimination of all forms of racial discrimination and all forms of
religious intolerance.101
And in its resolution 56/152, entitled “Respect or the
purposes and principles contained in the Charter of the
United Nations to achieve international cooperation in
promoting and encouraging respect or human rights
and or undamental reedoms and in solving international
problems o a humanitarian character”, the General
Assembly armed:
The solemn commitment of all States to enhance international cooperation
in the eld o human rights and in the solution to international
problems of a humanitarian character in full compliance with the
Charter of the United Nations.
60. As has been pointed out in the preliminary report on
this topic, international human rights law takes on special
signicance in this context.102 The International Covenant
on Economic, Social and Cultural Rights reers explicitly
to international cooperation as a means o realizing the
rights contained therein.103 This has been reiterated by the
Committee on Economic, Social and Cultural Rights in
its general comments relating to the implementation o
specic rights guaranteed by the Covenant.104 In a recent
resolution, the Economic and Social Council encouraged:
Member States and, where applicable, regional organizations to
strengthen operational and legal rameworks or international disaster
relie, [to take] into account, as appropriate, the Guidelines or the
Domestic Facilitation and Regulation o International Disaster Relie
and Initial Recovery Assistance, adopted at the thirtieth International
Conference of the Red Cross and Red Crescent held in Geneva
in November 2007.105
98 Ibid., art. 22.
99 Ibid., art. 24.
100 Ibid., art. 29, para. 4.
101 See ootnote 75 above.
102 See Yearbook … 2008, vol. II (Part One), document A/CN.4/598,
paras. 25–26.
103 General Assembly resolution 2200 A (XXI), annex, arts. 11, 15,
22 and 23.
104 See, in particular, general comments No. 2 (Report on the ourth
session, Committee on Economic, Social and Cultural Rights, Ocial
Records o the Economic and Social Council, 1990, Supplement No. 3
(E/1990/23), annex III, p. 86); No. 3 (Report on the th session, ibid.,
Supplement No. 3 (E/1991/23), annex III, p. 83; No. 7 (Report on the sixteenth
and seventeenth sessions, ibid., Supplement No. 2 (E/1998/22),
annex IV, p. 113; No. 14 (Report on the twenty-second, twenty-third
and twenty-ourth sessions, ibid., Supplement No. 2 (E/2001/22),
annex IV, p. 128; and No. 15 (Report on the twenty-eighth and twentyninth
sessions, ibid., Supplement No. 2 (E/2003/22), annex IV, p. 120.
105 Resolution 2008/36 o the Economic and Social Council, o
25 July 2008, para. 5.
And, in the same resolution, the Council:
Recognizes the benets o engagement o and coordination with relevant
humanitarian actors to the effectiveness of humanitarian response,
and encourages the United Nations to continue to pursue eorts to
strengthen partnerships at the global level with the International Red
Cross and Red Crescent Movement, relevant humanitarian non-governmental
organizations and other participants o the Inter-Agency
Standing Committee.106
61. International cooperation gained particular prominence
in the 2006 Convention on the Rights o Persons
with Disabilities which is, inter alia, applicable “in
situations o risk, including situations o armed confict,
humanitarian emergencies and the occurrence o natural
disasters”.107 In a separate article of that Convention,
international cooperation is dealt with in the ollowing
terms:
States Parties recognize the importance o international cooperation
and its promotion, in support o national eorts or the realization o the
purpose and objectives o the present Convention, and will undertake
appropriate and eective measures in this regard, between and among
States and, as appropriate, in partnership with relevant international and
regional organizations and civil society, in particular organizations o
persons with disabilities.108
62. There is a vast number o instruments o speci
c relevance to the protection o persons in the event
of disasters which demonstrate the importance of the
imperative o international cooperation in combating
the effects of disasters. Not only are these instruments
in themselves expressions o cooperation, they generally
refect the principle o cooperation relating to speci
c aspects o disaster governance in the text o the
instrument. Typically in bilateral agreements, this has
been refected in the title given to the instrument, denoting
either cooperation or (mutual) assistance.109 Moreover,
the cooperation imperative, usually laid down
in the preamble of a particular instrument, in the vast
majority o cases is ramed as one o the objectives o
the instrument or is attributed positive effects towards
their attainment. Again, the Tampere Convention is o
relevance in this respect as it indicates in paragraph 21
of its preamble that the parties wish “to facilitate international
cooperation to mitigate the impact o disaster”.
Another example, very much in line with the scope of
the present topic, can be ound in an agreement between
France and Malaysia:
Convinced of the need to develop cooperation between the competent
organs o both Parties in the eld o the prevention o grave risks
and the protection of populations, property and the environment.110
106 Ibid., para. 7.
107 Art. 11.
108 Art. 32.
109 See Yearbook … 2008, vol. II (Part One), addendum I, document
A/CN.4/590 and Add.1–3, paras. 25–26, or a comprehensive list o
relevant instruments. For a urther typology o instruments or the purposes
of international disaster response law, see Fischer, “International
disaster response law treaties: trends, patterns, and lacunae” (“Despite
the act that in all cases the specic purpose is dierent, the underlying
rationale is the need to increase capacities to deal with the effects of
disaster”, p. 33).
110 Agreement between the Government o the French Republic
and the Government of Malaysia on Cooperation in the Field of
Disaster Prevention and Management and Civil Security, 25 May 1998,
preambular paragraph 4: Journal ociel de la République rançaise,
9 December 1998, p. 18519.
Protection of persons in the event of disasters 199
63. Cooperation should, however, not be interpreted as
diminishing the prerogatives o a sovereign State within
the limits of international law. On the contrary, the principle
underlines respect or the sovereignty o States and
its corollary, non-intervention and the primary role o
State authorities in the initiation, organization, coordination
and implementation of the measures relevant to
the protection of persons in the event of disasters. Sovereignty
may be conceived as “a concept to describe a
pre-existing reality, a scheme o interpretation, used to
organize and structure our understanding o political
lie”.111 Non-intervention is a well-established principle
o international law, dating rom the early stages o that
body of law,112 whose substantive contents need not be
restated here. Suce it to point out that the protection
of persons in the event of disasters will often involve
the adoption o political, regulatory, administrative and
juridical measures by the aected State, including the
deployment of its armed forces within its own territory,
which are expressions o the “right o every sovereign
State to conduct its aairs without outside intererence”,
as ICJ dened said principle in its 1986 judgment in the
Case concerning Military and Paramilitary Activities in
and against Nicaragua.113
64. It is the primary duty o the authorities o the
affected State to take care of the victims of natural disasters
and similar emergencies occurring in its territory.114
In the words of the General Assembly, “the abandonment
o the victims o natural disasters and similar emergency
situations without humanitarian assistance constitutes a
threat to human lie and an oence to human dignity”.115
65. Cooperation complements the primary duty o
States. However, this primary duty concerns not only
Governments and governmental authorities, but also
competent international organizations and elements o
civil society, such as national Red Cross and Red Crescent
societies. The position has been characterized with
clarity by the Secretary-General as early as 1971 in the
comprehensive report entitled “Assistance in cases of
natural disaster”:
While a Government should be able to count on the help of the international
community, provided through Governments, the League o
Red Cross Societies and other voluntary agencies or the United Nations
organizations, in its preparations against or its eorts to meet such emergencies,
the primary responsibility or protecting the lie, health and
property o people within its rontiers and or maintaining the essential
public services rests with that Government. International assistance can
only supplement, and will depend very largely or its eectiveness on,
the eorts o the country itsel through its Government or through such
organizations as its national Red Cross society.116
111Werner, “State sovereignty and international legal discourse”,
p. 155.
112 For an early exposition o its origins, see Bernard, “On the principle
o non-intervention. a lecture delivered in the hall o all Souls’
College”.
113 Case Concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States o America),
I.C.J. Reports 1986, para. 202.
114 Resolution 46/182 o 19 December 1991, annex, para. 4. See also
Hyogo Declaration 2005 (ootnote 73 above), para. 4.
115 Resolution 45/100 o 14 December 1990, sixth preambular
paragraph.
116 E/4994, para. 100. This point was rearmed by the General
Assembly in resolution 43/131 o 8 December 1988.
66. The 2008 Secretariat memorandum points out
the link between the principle of cooperation as a
sine qua non for this topic and the multiple actors
involved, listing not only State actors but also non-State
actors, that is, relie organizations.117 The involvement
o, and cooperationwith, non-State actors has thus gradually
ound its way into the international legal discourse
which recognizes that the increasing interdependence
within international society necessitates international
cooperation including actors other than States. In the
words o the Independent expert on human rights and
international solidarity:
From a global perspective, interdependence, by its very nature,
exists not only between States, but also between other international
actors, and these relationships require international cooperation.118
67. The role o those actors has been recognized as
essential or combating the eects o disasters. The duty
of States to cooperate with the United Nations is expressed
in Article 56 o the Charter and the Organization has, in
turn, emphasized the need to work in close cooperation
with IFRC119 and with non-governmental organizations
and civil society as a whole.120
68. In addition, a number o treaties between States and
international organizations121 have been concluded that
acknowledge the importance o international cooperation
between State actors and non-State actors at the
international level.122 Other international instruments do
likewise. The preamble to the 1992 Rio Declaration on
Environment and Development cites the goal o “establishing
a new and equitable global partnership through the
creation o new levels o cooperation among States, key
sectors o societies and people”.123 The concept o global
partnership is then repeated in principles 7, 21 and 27. Cooperation
is expressed in a number o ways. With regard
to the present topic, principle 18 provides:
States shall immediately notify other States of any natural disasters
or other emergencies that are likely to produce sudden harmul eects
on the environment of those States. Every effort shall be made by the
international community to help States so aficted.
The ASEAN Agreement on Disaster Management and
Emergency Response o 2005 states that:
117 Yearbook … 2008, vol. II (Part One), addendum I, document A/
CN.4/590 and Add.1–3, para. 18.
118 A/HRC/4/8, para. 11.
119 See, inter alia, resolutions 2435 (XXIII) o 19 December 1968,
2816 (XXVI) o 14 December 1971, 36/225 o 17 December 1981,
46/182 o 19 December 1990, 57/150 o 16 December 2002 and 63/139
of 11 December 2008.
120 Resolutions 63/139 o 11 December 2008 and 63/141
of 11 December 2008.
121 The Special Rapporteur ollows the denition provisionally
adopted by the Commission under the topic of “Responsibility of
international organizations”. Drat article 2 denes an international
organization or the purposes o the drat articles as “an organization
established by a treaty or other instrument governed by international
law and possessing its own international legal personality. International
organizations may include as members, in addition to States, other entities”
(Yearbook … 2008, vol. II (Part Two), para. 164).
122 See the list o instruments between States and international organizations
in Yearbook…2008, vol. II (Part One), addendum I, document A/
CN.4/590 andAdd.1–3.
123 Report o the United Nations Conerence on Environment and
Development … (see ootnote 83 above).
200 Documents o the sixty-rst session
The Parties, in addressing disaster risks, shall involve, as appropriate,
all stakeholders including local communities, non-governmental
organizations and private enterprises, utilizing, among others, community-
based disaster preparedness and early response approaches.124
The 1986 Convention on Assistance in the Case o
Nuclear Accident or Radiological Emergency provides in
its rst article:
The States Parties shall cooperate between themselves and with the
International Atomic Energy Agency.
The Hyogo Declaration expresses the value o non-State
actor involvement in the context of disaster reduction in
terms o “cooperation, including partnerships”.125 Likewise,
the Institute of International Law, in its resolution
on humanitarian assistance, has recognized the “essential
role played by the United Nations, intergovernmental
organizations, the International Committee o the Red
Cross and non-governmental organizations”.126
69. The concept o civil society does not necessarily
carry a transnational connotation. Rather, it emphasizes
local civil society. The working denition proposed by the
London School of Economics Centre for Civil Society is
illustrative:
124 Art. 3, para. 6.
125 Hyogo Declaration 2005 (ootnote 73 above), para. 4. See also
paragraph 2 in which “the importance o involving all stakeholders”
is underlined.
126 Resolution adopted on 2 September 2003 (Institute o International
Law, Yearbook, p. 263).
Civil society refers to the arena of uncoerced collective action
around shared interests, purposes and values. In theory, its institutional
orms are distinct rom those o the state, amily and market, though in
practice, the boundaries between state, civil society, family and market
are oten complex, blurred and negotiated. Civil society commonly
embraces a diversity o spaces, actors and institutional orms, varying
in their degree o ormality, autonomy and power. Civil societies are
oten populated by organizations such as registered charities, development
non-governmental organizations, community groups, women’s
organizations, aith-based organizations, proessional associations,
trade unions, sel-help groups, social movements, business associations,
coalitions and advocacy groups.127
70. In the light o the oregoing, the Special Rapporteur
proposes the ollowing drat article on the duty o
cooperation:
“Draft article 3. Duty to cooperate
“For the purposes of the present draft articles, States
shall cooperate among themselves and, as appropriate,
with:
“(a) Competent international organizations, in
particular the United Nations;
“(b) The International Federation of Red Cross
and Red Crescent Societies; and
“(c) Civil society.”
127 “What is civil society?”, Centre or Civil Society, London School
of Economics, 2004.
chaPter III
Future work
71. The present report has focused on the scope of the
protection of persons in the event of disasters and proposed
a denition o disaster. It has stressed the conceptual
approach to guide urther developments, and has put
forward a draft article on the basic principle that inspires
work on the topic. As the next step, work shall be directed
towards complementing the rst axis, namely, that o the
rights and obligations o States in relation to one another,
and identiying the principles that inspire the protection o
persons in the event of disaster, in its aspect related to persons
in need of protection. Further work will concentrate
on the operational aspects of disaster relief and assistance.
205
PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
DOCUMENT A/CN.4/643*
Fourth report on the protection of persons in the event of disasters,
by Mr. Eduardo Valencia-Ospina, Special Rapporteur
[
[11 May 2011
*
Multilateral instruments cited in the present report
Source
J. B. Scott (ed.), The Hague Conventions
and Declarations of 1899 and 1907,
3rd ed., New York, Oxford University
Press, 1918, p. 41.
Ibid., p. 151.
CONTENTS
Page
Multilateral instruments cited in the present report ........................................................................................................................................ 205
Works cited in the present report .................................................................................................................................................................... 206
Paragraphs
INTRODUCTION ............................................................................................................................................................................ 1–27 207
A. Comments by Governments ............................................................................................................................... 1–26 207
B. Related developments......................................................................................................................................... 27 210
Chapter
I. RESPONSIBILITY OF THE AFFECTED STATE TO SEEK ASSISTANCE WHERE ITS NATIONAL RESPONSE CAPACITY IS EXCEEDED .......... 28–50 210
A. Responsibility of the affected State towards individuals on its territory............................................................ 32–35 211
B. Cooperation ........................................................................................................................................................ 36–39 212
............................................................................................. 40–50 213
Draft article 10. Duty of the affected State to seek assistance ........................................................................ 45 213
II. DUTY OF THE AFFECTED STATE NOT TO ARBITRARILY WITHHOLD ITS CONSENT TO EXTERNAL ASSISTANCE ............................... 51–77 214
Draft article 11. Duty of the affected State not to arbitrarily withhold its consent......................................... 77 218
III. RIGHT TO OFFER ASSISTANCE IN THE INTERNATIONAL COMMUNITY .................................................................................... 78–109 218
A. Offers of assistance by non-affected States ........................................................................................................ 88–95 219
.......................................... 96–106 220
C. Non-interference................................................................................................................................................. 107–109 222
Draft article 12. Right to offer assistance ....................................................................................................... 109 222
206 Documents of the sixty-third session
Source
United Nations, Treaty Series, vol. 75,
Nos. 970–973, pp. 31 et seq.
Geneva Convention relative to the Protection of Civilian Persons in Time of War Ibid., No. 973, p. 287.
-
Ibid., vol. 1125, No. 17512, p. 3.
(Geneva, 8 June 1977)
Ibid., No. 17513, p. 609.
Ibid., vol. 213, No. 2889, p. 221.
Ibid., vol. 999, No. 14668, p. 171.
16 December 1966)
Ibid., vol. 993, No. 14531, p. 3.
Treaty of amity and co-operation in Southeast Asia (Denpasar, Bali, 24 February 1976) Ibid., vol. 1025, No. 15063, p. 297.
(Vienna, 26 September 1986)
Ibid., vol. 1457, No. 24643, p. 133.
Human Rights: A Compilation of
International Instruments, vol. II,
Regional Instruments (United Nations
publication, Sales No. E.97.XIV.1),
sect. C, No. 39.
OAS,, OEA/Ser.A/49
(SEPF).
and Relief Operations (Tampere, 18 June 1998)
United Nations, Treaty Series, vol. 2296,
No. 40906, p. 5.
Framework Convention on civil defence assistance (Geneva, 22 May 2000) Ibid., vol. 2172, No. 38131, p. 213.
(Vientiane, 26 July 2005)
, p. 157.
United Nations, Treaty Series, vol. 2515,
No. 44910, p. 3.
Works cited in the present report
BOTHE, Michael
in Rudolf Bernhardt (ed.),
International Law. Amsterdam, Elsevier, 2000, pp. 168–174.
HARDCASTLE, Rohan J. and Adrian T. L. CHUA
International Review of the Red Cross,
vol. 38, December 1998, No. 325, pp. 589–609.
ICRC
Draft Additional Protocols to the Geneva Conventions of August
12, 1949. Commentary. Geneva, ICRC, 1973.
Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949. Geneva, ICRC, 1987.
INSTITUTE OF INTERNATIONAL LAW
Yearbook, vol. 63 (II),
pp. 339–345.
Yearbook, vol. 70 (I),
Yearbook, vol. 70 (II), Session of
INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW
International Review of the Red Cross, vol. 33, November–
December 1993, No. 297, p. 519.
LAUTERPACHT, E. (ed.)
International Law: Being the Collected Papers of Hersch
Lauterpacht
Press, 2009.
RAMCHARAN, B. G.
in B. G.
Ramcharan (ed.), The Right to Life in International Law (1985).
SCHINDLER, Dietrich
International Colloquium on the Right to Humanitarian
Assistance, SHS-95/CONF.805/6, Paris, UNESCO, 1995.
218 Documents of the sixty-third session
Convinced
the supply of food, medicines or health care, for which access to victims
The Framework Convention on civil defence assistance
e
that States Parties undertake to respect in terms of provid-
Offers of, or requests for, assistance shall be examined and responded
to by recipient States within the shortest possible time.
article 70 of Protocol additional to the Geneva Conven-
-
123
of assistance in the event of a disaster. The decision to
refuse or accept humanitarian assistance should therefore
the affected State.
76. In conclusion, the rule on consent to humanitarian
assistance must be in line with the purpose of the work of
provisionally adopted by the Commission.124 To reinforce
123 ICRC, Commentary on the Additional Protocols of 8 June 1977
to the Geneva Conventions of 12 August 1949, para. 2846.
124 Yearbook … 2010, vol. II (Part Two), para. 330.
this purpose, both in terms of the adequateness and effectiveness
of the response, humanitarian assistance should
to meet the essential needs of the persons concerned, with
limitation on consent. In addition, the operational aspects
State to explain its conduct, in particular in case of refusal
of humanitarian assistance.
125
“
“1. Consent to external assistance shall not be
withheld arbitrarily if the affected State is unable or
“2. When an offer of assistance is extended pursuant
to draft article 12 of the present draft articles, the
affected State shall, without delay, notify all concerned
125 This draft article follows immediately the text on consent pro-
his third report (Yearbook … 2010, vol. II (Part One), document A/
CN.4/629, p. 392, para. 96), which was referred to and is currently
CHAPTER III
Right to offer assistance in the international community
-
provisional adoption of nine draft articles within the Com-
the event of disasters. Solidarity underpins the principles
of humanity, neutrality, impartiality and non-discrimina-
-
-
79. In turn, the role of the affected State has been con-
has the duty to ensure the protection of persons on its territory.
Similarly, it is primarily responsible for the direction,
control, coordination and supervision of efforts to
provide relief and assistance therein (draft article 9).
80. Thus understood, the protection of persons in the
-
by the principles of humanity, neutrality, impartiality and
non-discrimination, underpinned by solidarity.
81. Non-affected States, as members of the international
community, have an interest in the protection of persons
-
tory. This interest needs to be understood in the context of
the primary responsibility of the affected State in the protection
of persons in its territory, as it also is an expression
of the principle of humanity, underpinned by solidarity.
-
82. Perhaps the most salient instance of the interest of
non-affected States in the protection of persons outside
126 impose on all
States members of WHO the duty to report evidence that
-
126 WHO resolution WHA58.3.
Protection of persons in the event of disasters 219
States Parties shall, as far as practicable, inform WHO within 24
their territory that may cause international disease spread, as manifested
by exported or imported:
(a
(b
(c) Goods that are contaminated.
83. This dual nature of the disaster as primary responsibility
of the affected State or States, on the one hand,
-
munity as a whole, on the other, has been noted before
-
work for Action,127 b
partnerships, each State has the primary responsibility for its own sus-
and other national assets from the impact of disasters. At the same time, in
motivation needed for disaster risk reduction at all levels.
84. An appropriate point of complementarity between
the primary responsibility of the affected State and the
interest of non-affected States in the protection of persons
in the event of disasters may be found in the form
-
matter, which strains the capacity of the affected sover-
primary responsible for the protection of its population.
part of the evolution of international law, most notably
in the context of international humanitarian law. As early
to offer their assistance in the event of an international
-
offered. Under article 3 of the Convention:
Independently of this recourse, the Contracting Powers deem it
expedient and desirable-
pute, should, on their own initiative and as far as circumstances may
parties in dispute as an unfriendly act.
to offer assistance of third parties can be found in sub-
-
tions for the Protection of War Victims:
127
Hyogo Framework for Action 2005–2015: Building the Resilience of
Nations and Communities to Disasters, World Conference on Disaster
Reduction (18–22 January 2005)(A/CONF.206/6, resolution 2).
-
provisions:
impartial humanitarian body, such as the International Committee of
87. Similarly, article 18 of Protocol additional to the
the protection of victims of non-international armed con-
-
tions may offer their services for the performance of their traditional
population may, even on its own initiative, offer to collect and care for
the wounded, sick and shipwrecked.
a lack of the supplies essential for its survival, such as food-stuffs and
medical supplies, relief actions for the civilian population which are of
an exclusively humanitarian and impartial nature and which are con-
A. Offers of assistance by non-affected States
88. The holistic mindset has inspired more recent inter-
-
international treaties. In the Convention on assistance in
of assistance in the event of nuclear disasters, in the fol-
States Parties shall, within the limits of their capabilities, identify
be made available for the provision of assistance to other States Parties
provided.
89. In turn, the Inter-American Convention to Facilitate
-
b
an offer of assistance from another State party shall be
of the same Convention develops the rules applicable to
offer by the non-affected State, followed by the voluntary
acceptance of the affected State. The system is set out in
a. Requests for and offers and acceptance of assistance from one
State party to another shall be communicated via diplomatic channels or
b -
sult with the assisted State to receive from the latter information on the
kind of assistance considered most appropriate to provide to the populations
stricken by the disaster.
c. To facilitate assistance, a State party that accepts it shall
promptly notify its competent national authorities and/or its National
-
220 Documents of the sixty-third session
90. A similar solution was found in the Tampere Convention
of Telecommunication Resources for Disaster
-
5. No telecommunication assistance shall be provided pursuant to
any telecommunication assistance offered pursuant to this Convention
and policy.
Parties to request telecommunication assistance directly from non-State
on civil defence assistance establishes in article 3:
a disaster:
(a
place.
(b -
-
ciple of non-intervention in the internal affairs of this State and should
be carried out with due respect for its ways and customs. Such assistance
should not be viewed as interference in the internal affairs of the
(c) Assistance shall be provided without discrimination, particu-
other criterion.
(d) Assistance shall be undertaken in a spirit of humanity, solidarity
and impartiality.
(e) Offers of, or requests for, assistance shall be examined and
responded to by recipient States within the shortest possible time.
shall be respected, in accordance with the Charter of the United Nations
and the Treaty of Amity and Cooperation in Southeast Asia, in the imple-
its territory and external assistance or offers of assistance shall only be
provided upon the request or with the consent of the affected Party.
by a wealth of other international instruments. The
United Nations Committee on Economic, Social and
-
No. 14 (2000),128-
est attainable standard of health (article 12 of the International
Covenant on Economic, Social and Cultural
128 See
Twenty-second, Twenty-third and Twenty-fourth Sessions, Supplement
No. 2, annex IV.
-
ance with the Charter of the United Nations and relevant resolutions
of the United Nations General Assembly and of the World Health
internally displaced persons. Each State should contribute to this task
to the maximum of its capacities. Priority in the provision of interna-
beyond the frontiers of a State, the international community has a collective
responsibility to address this problem. The economically developed
States parties have a special responsibility and interest to assist the
-
tions, concerned with the development of international
the event of disasters. Thus, the Institute of International
Law, in article 5 of its 1989 resolution on the protection
internal affairs of States, stated:
or an impartial humanitarian body such as the International Committee
of the Red Cross, of food or medical supplies to another State in whose
territory the life or health of the population is seriously threatened cannot
be considered an unlawful intervention in the internal affairs of that
State. However, such offers of assistance shall not, particularly by vir-
129
-
Right to offer and provide humanitarian assistance
assistance to the affected State. Such an offer shall not be considered
unlawful interference in the internal affairs of the affected State, to the
extent that it has an exclusively humanitarian character.
these States.130
B. Offers of assistance by international
organizations and other humanitarian actors
96. The interest of the international community in the
protection of persons in the event of disasters can be bet-
always in the framework of the principles of humanity,
neutrality, impartiality and non-discrimination, underpinned
by solidarity.
97. Several of the aforementioned instruments estab-
129
p. 339 (rapporteur: Giuseppe Sperduti).
130
(rapporteur: Budislav Vukas).
Protection of persons in the event of disasters 221
and other humanitarian actors. Moreover, offers of assist-
-
acquis of the international
law of disaster response.
98. In the ambit of the United Nations, the Secretary-
General has been deemed competent to call upon States
to offer assistance to victims of natural disasters and other
-
lutions 43/131 of 8 December 1988 (Humanitarian assist-
the capacity of the United Nations system to respond to
natural disasters and other disaster situations) and 46/108
and displaced persons in Africa).
-
When WHO receives information of an event that may constitute a
-
international disease spread, possible interference with international
-
-
When requested by the State Party, WHO shall provide information
131
d),
of the Convention on assistance in the case of nuclear
power to:
101. The International Institute of Humanitarian Law
Remo Principles), of which Principle 5 provides that
-
affairs. The authorities of the States concerned, in the exercise of their
of humanitarian assistance to their populations.132
have also played a pivotal role in disaster response. The
when in resolution 43/131 of 8 December 1988 (Humanitarian
assistance to victims of natural disasters and similar
131 See footnote 126 above.
132 International Institute of Humanitarian Law,
The General Assembly,
Aware-
-
3. Stresses
-
4. Invites all States in need of such assistance to facilitate the work
-
ticular the supply of food, medicines and health care, for which access
5. Appeals-
-
-
velopments of international law. Most of the instruments
-
In the context of international humanitarian law, common
article 3 of the Geneva Conventions for the Protection of
War Victims and article 18 of Protocol additional to the
Geneva Conventions of 12
the protection of victims of non-international armed con-
II) (quoted respectively in paras. 86 and 87
in turn, establish under Principle 25:
assistance to internally displaced persons lies with national authorities.
an interference in a State’s internal affairs and shall be considered in
-
required humanitarian assistance.133
of extensive and consistent practice of States and interna-
press reports, in response to the Japanese earthquake and
tsunami of 11 March 2011, offers of assistance were made
as of 17 March by about 113 countries.134 Likewise, press
of States offered $854 million in cash and in kind to the
United States.135-
tions have made offers of assistance to States affected by
133 E/CN.4/1998/53/Add.2.
134 For a full list of offers of assistance by States, see Reuters,
135
Voice of America News, 14 May 2007.
222 Documents of the sixty-third session
the Haiti earthquake of 12 January 2010, the EU offered
136 In addition
to about 113 States which offered assistance to Japan fol-
137
offer assistance is not limited to non-affected States, but
-
-
vant actors needed to achieve the interest of the international
community in the protection of persons in the event
of disasters.
C. Non-interference
offer assistance by relevant actors in case of disaster or
assumption of the Special Rapporteur’s third report that
-
-
b), of the Framework Convention on civil defence
assistance138 states that offers of assistance should not
be viewed as interference in the internal affairs of the
136
18 January 2010.
137 See footnote 134 above.
138
-
tains a provision that offers of assistance should not be re-
internal affairs.139
-
an unfriendly act or an interference in the affected State’s
internal affairs.140 The commentary to article 18 of Protocol
-
made by ICRC should not be considered an interference
-
141
-
offer assistance:
“
Nations,
139 See footnote 132 above.
140 E/CN.4/1998/53/Add.2, annex, Principle 25, para. 2.
141 ICRC, Commentary on the Additional Protocols of 8 June 1977
to the Geneva Conventions of 12 August 1949, para. 4892.
11
PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
[Agenda item 4]
DOCUMENTA/CN.4/652
Fith report on the protection o persons in the event o disasters,
by Mr. Eduardo Valencia-Ospina, Special Rapporteur
[Original: English]
[9 April 2012]
CONTENTS
Page
Multilateral instruments cited in the present report ........................................................................................................................................ 12
Works cited in the present report .................................................................................................................................................................... 13
Paragraphs
IntroduCtIon............................................................................................................................................................................ 1–9 13
Chapter
I. Comments made In the sIxth CommIttee by states and organIzatIons..................................................................... 10–54 14
A. General comments ............................................................................................................................................... 12–16 14
B. Drat articles 5–8 ................................................................................................................................................. 17–22 15
C. Draft article 9 ....................................................................................................................................................... 23 16
D. Draft article 10 .................................................................................................................................................... 24–32 16
E. Draft article 11 .................................................................................................................................................... 33–43 17
F. The right to oer assistance (proposed drat article 12) ...................................................................................... 44–50 18
G. Duty to provide assistance (question posed by the Commission in its 2011 annual report) ................................ 51–54 19
II. the speCIal rapporteur’s posItIon on the CommIssIon’s questIon In Its 2011 annual report ................................. 55–78 20
III. elaboratIon on the duty to Cooperate...................................................................................................................... 79–116 23
A. The nature o cooperation and respect or the aected State’s sovereignty ........................................................ 82–84 23
B. The duty to cooperate, an obligation o conduct .................................................................................................. 85–92 23
C. Categories o cooperation .................................................................................................................................... 93–116 24
Iv. CondItIons For the provIsIon oF assIstanCe ............................................................................................................... 117–181 28
A. Compliance with national laws ............................................................................................................................ 120–145 29
B. Identiable needs and quality control .................................................................................................................. 146–160 32
C. Limitations on conditions under international and national law .......................................................................... 161–181 35
v. termInatIon oF assIstanCe .......................................................................................................................................... 182–187 39
vI. related developments................................................................................................................................................ 188–190 40
12 Documents of the sixty-fourth session
Multilateral instruments cited in the present report
Source
Declaration o St. Petersburg o 1868 to the Eect o Prohibiting the Use o Certain Projectiles
inWartime (St. Petersburg, 11 December 1868)
International Committee of the Red Cross,
Handbook of the International Red
Cross and Red Crescent Movement,
14th ed., Geneva, 2008, p. 331.
The Hague Convention o 1899 Respecting the Laws and Customs oWar on Land
(The Hague, 29 July 1899)
James Brown Scott (ed.), The Hague
Conventions and Declarations
of 1899 and 1907, New York, Oxford
University Press, 1915, p. 100.
Convention and Statute establishing an International Relie Union (Geneva, 12 July 1927) League o Nations, Treaty Series,
vol. CXXXV (1932–1933), No. 3115,
p. 247.
Geneva Conventions or the protection o war victims (Geneva, 12 August 1949) United Nations, Treaty Series, vol. 75,
Nos. 970–973, pp. 31 et seq.
Geneva Convention relative to the Treatment o Prisoners oWar (Geneva, 12 August 1949) Ibid., No. 972, p. 135.
Consolidated version o the Treaty on the Functioning o the European Union (Rome,
25 March 1957)
Ofcial Journal o the European Union,
vol. 45, No. C 83/47, 30 March 2010.
Nordic Mutual Emergency Assistance Agreement in connection with
(Vienna, 17 October 1963)
United Nations, Treaty Series, vol. 525,
No. 7585, p. 75.
International Covenant on Civil and Political Rights (New York, 16 December 1966) Ibid., vol. 999, No. 14668, p. 171.
International Covenant on Economic, Social and Cultural Rights
(New York, 16 December 1966)
Ibid., vol. 993, No. 14531, p. 3.
Convention on the Elimination o All Forms o Discrimination againstWomen
(New York, 18 December 1979)
Ibid., vol. 1249, No. 20378, p. 13.
Vienna Convention or the Protection o the Ozone Layer (Vienna, 22 March 1985) Ibid., vol. 1513, No. 26164, p. 293.
Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal,
16 September 1987)
Ibid., vol. 1522, No. 26369, p. 3.
Convention on assistance in the case o a nuclear accident or radiological emergency
(Vienna, 26 September 1986)
Ibid., vol. 1457, No. 23643, p. 133.
Agreement [between Denmark, Finland, Norway and Sweden] on cooperation across State
rontiers to prevent or limit damage to persons or property or to the environment in the case
of accidents (Stockholm, 20 January 1989)
Ibid., vol. 1777, No. 31001, p. 223.
Convention on the Rights o the Child (New York, 20 November 1989) Ibid., vol. 1577, No. 27531, p. 3.
Convention on temporary admission (Istanbul, 26 June 1990) Ibid., vol. 1762, No. 30667, p. 121.
Agreement establishing the Caribbean Disaster Emergency Response Agency
(Port o Spain, 26 February 1991)
Ibid., vol. 2256, No. 40212, p. 53.
Inter-American Convention to Facilitate Disaster Assistance (Santiago, 7 June 1991) OAS, Ofcial Documents, OEA/Ser.A/49
(SEPF), p. 13.
Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992) United Nations, Treaty Series, vol. 2105,
No. 36605, p. 457.
Agreement among the Governments o the Participating States o the Black Sea Economic
Cooperation (BSEC) on collaboration in Emergency Assistance and Emergency Response
to natural and man-made Disasters (Sochi, 15 April 1998)
Available rom www.bsec-organization.org.
Tampere Convention on the Provision o Telecommunication Resources or Disaster Mitigation
and Relief Operations (Tampere, 18 June 1998)
United Nations, Treaty Series, vol. 2296,
No. 40906, p. 5.
International Convention on the simplication and harmonization o Customs procedures
(as amended) (Kyoto, 18 May 1973)
Ibid., vol. 950, No. 13561, p. 269.
Protocol o Amendment to the International Convention on the simplication and
harmonization o Customs procedures (Brussels, 26 June 1999)
Ibid., vol. 2370, No. 13561, p. 27.
Food Aid Convention, 1999 (London, 13 April 1999) United Nations, Treaty Series, vol. 2073,
No. 32022, p. 135.
Protocol on Health in the Southern African Development Community (Maputo,
18 August 1999)
Available from www.sadc.int.
Framework Convention on civil defence assistance (Geneva, 22 May 2000) Ibid., vol. 2172, No. 38131, p. 213.
Partnership agreement between the members o the Arican, Caribbean and Pacic Group
o States and the European Community and its member States (Cotonou, 23 June 2000)
Ofcial Journal o the European
Communities, No. L 317, vol. 43
(15 December 2000), p. 3.
ASEAN Agreement on Disaster Management and Emergency Response (Vientiane,
26 July 2005)
ASEAN Documents Series 2005, p. 157.
Convention on the Rights o Persons with Disabilities (New York, 13 December 2006) United Nations, Treaty Series, vol. 2515,
No. 44910, p. 3.
African Union Convention for the Protection and Assistance of Internally Displaced Persons
in Arica (the Kampala Convention) (Kampala, 23 October 2009)
Available from www.au.int.
Protection of persons in the event of disasters 23
79. In response to comments made in the Sixth Committee,
as summarized above,143 the Special Rapporteur will now
proceed to a further elaboration on the duty to cooperate,
enshrined in drat article 5.
80. As discussed in the previous reports of the Special
Rapporteur, cooperation plays a central role in the context
of disaster relief and is an imperative for the effective and
timely response to disaster situations. Such an essential
role lends itself to further elaboration of the functional
requirements of the duty to cooperate outlined in draft article
5 and the kind o coordination required by aected
States and assisting actors.
81. The present analysis is, therefore, an attempt to identi
y the contours o the duty o cooperation in drat article 5.
Admittedly, the nature of cooperation has to be shaped by
its purpose, which in the present context is to provide disaster
relie assistance. Seen rom the larger perspective o
public international law, to be legally and practically eective,
the States’duty to cooperate in the provision o disaster
relie must strike a ne balance between three important
aspects. First, such a duty cannot intrude into the sovereignty
o the aected State. Second, the duty has to be
imposed on assisting States as a legal obligation o conduct.
Third, the duty has to be relevant and limited to disaster
relie assistance, by encompassing the various specic
elements that normally make up cooperation on this matter.
A. The nature o cooperation and respect
or the aected State’s sovereignty
82. By its very nature, cooperation is likely to appear in
confict with the sovereign prerogatives o the recipient
State. For example, food access to domestic populations
or the use o oreign search and rescue teams might
both be regarded as oensive to the traditional notion
o State sovereignty. The legitimate concern to give its
due to the aected State’s sovereignty has been examined
extensively in the Special Rapporteur’s previous reports
and the earlier discussions in the Commission. Therefore,
while rearming that, as such, this issue remains a central
consideration regarding the nature o cooperation, the
present section needs to touch on it rather briefy.
83. Any attempt to provide disaster relie must take
cognizance o the principle o sovereignty. In order to
respect and saeguard the sovereignty o the aected State,
article 5 disposes that cooperation will be implemented “in
accordance with the present drat articles”. Consequently,
cooperation will have to be extended in conformity
with draft article 9, which places the affected State, “by
virtue o its sovereignty”, at the oreront o all disaster
relie assistance, limiting other interested actors to a
complementary role.
84. The attempt to provide for assistance while
respecting the sovereignty o the aected State is not
a novel concept in international law. As indicated in
143 See, in particular, paragraphs 17, 28–29, 37, 45, 47 and 53 above.
paragraph (1) o the commentary to drat article 5,144 the
Charter of the United Nations balances both concepts of
sovereignty (Art. 2, para. 1), and international cooperation
(Art. 1, para. 3; Arts. 13, 55 and 56). Similar balancing is
achieved in the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter o the United
Nations.145 Likewise, such balance is refected in General
Assembly resolution 46/182 on the strengthening o the
coordination o humanitarian emergency assistance o the
United Nations and in the Tampere Convention.
B. The duty to cooperate, an obligation o conduct
85. The duty to cooperate is also embodied in article 17
o the nal drat articles on the Law o transboundary
aquifers, adopted by the Commission at its sixtieth session,
in 2008.146 Paragraph 4 o the article reads:
States shall provide scientic, technical, logistical and other
cooperation to other States experiencing an emergency. Cooperation
may include coordination o international emergency actions and
communications, making available emergency response personnel,
emergency response equipment and supplies, scientic and technical
expertise and humanitarian assistance.
86. The article calls or States to provide “scientic,
technical, logistical and other cooperation” to other
States experiencing an emergency, in order to ensure
the protection o an aquier. It expands upon the general
obligation to cooperate in drat article 7 by describing
the cooperation necessary between affected States and
assisting actors in emergency situations. The commentary
to article 17 indicates that the Commission established an
obligation “o conduct and not result”.147 The commentary
further states that the
assistance required would relate to coordination o emergency actions
and communication, providing trained emergency response personnel,
response equipment and supplies, extending scientic and technical
expertise and humanitarian assistance.148
87. The ASEAN Declaration on Mutual Assistance on
Natural Disasters o 1976149 contains similar language and
provides that
The Member Countries shall, within their respective capabilities,
cooperate in the
(a) improvement o communication channels among themselves
as regards disaster warning;
(b) exchange o experts and trainees;
(c) exchange o inormation and documents; and
(d) dissemination of medical supplies, services and relief
assistance.
144 Yearbook … 2010, vol. II (Part Two), pp. 188–189.
145 General Assembly resolution 2625 (XXV) o 24 October 1970.
146 Yearbook … 2008, vol. II (Part Two), p. 22.
147 Ibid., p. 41, para. (4) of the commentary.
148 Ibid., p. 42, para. (9) of the commentary.
149 Signed at Manila on 26 June 1976, Malaya Law Review, vol. 20
(1978), p. 411.
Chapter III
Elaboration on the duty to cooperate
24 Documents of the sixty-fourth session
88. The establishment o an obligation o conduct rather
than one of result appears in various United Nations instruments.
The General Assembly, in paragraph 12 o the
annex to resolution 46/182, called or the United Nations
to adopt a coordinating role in the provision o emergency
aid, but not or specic attainments as a result o that coordination.
The Declaration on the Establishment of a New
International Economic Order focuses on conduct in its call
or “the strengthening, through individual and collective
actions, o mutual economic, trade, nancial and technical
cooperation among the developing countries”.150
89. The Economic and Social Council, in resolution
2008/36 o 25 July 2008 dealing with emergency humanitarian
assistance, also called or specic conduct without
envisaging any specic outcome, when it
encourages Member States to create and strengthen an enabling environment
or the capacity-building o their national and local authorities,
national societies of the Red Cross and Red Crescent, and national
and local non-governmental and community-based organizations in
providing timely humanitarian assistance, and also encourages the
international community, the relevant entities of the United Nations
system and other relevant institutions and organizations to support
national authorities in their capacity-building programmes, including
through technical cooperation and long-term partnerships based on recognition
o their important role in providing humanitarian assistance.151
90. Several multilateral instruments prioritize the
establishment o an obligation o conduct. The States
parties to the Tampere Convention, or example, agree,
in article 3, paragraph 2 (c), to “the provision of prompt
telecommunication assistance to mitigate the impact o
a disaster”, but not to the unctioning o a given type o
telecommunications network. For its part, the ASEAN
Agreement, which has detailed provisions on the methods
o technical and scientic cooperation, does not turn any o
those provisions into obligations. Instead o, or example,
agreeing to standardize their reporting methods by a
certain date, the members o ASEAN agree, in article 18,
paragraph 1 (b), o the ASEAN Agreement, to “promote
the standardization o the reporting ormat o data and
inormation”. Similarly, obligations o conduct and not
result are ound in the Convention on the Rights o Persons
with Disabilities and the Convention on assistance in the
case o a nuclear accident or radiological emergency.
91. Outside the realm of international disaster relief law
proper, the obligation to cooperate as an obligation o
conduct and not one of result is also embodied in bilateral
treaties. Among the many examples, suce it to mention
the United States–Mexico Treaty on Agriculture, which
commits both States to cooperation on umigation o
pears, but not to the eradication of the Oriental Moth.152
The Agreement between the European Community and
150 General Assembly resolution 3201 (S-VI), para. 4 (s).
151 Ofcial Records o the Economic and Social Council, Supplement
No. 1 (E/2008/99 and Corr.1), Economic and Social Council resolution
2008/36 o 25 July 2008, entitled “Strengthening o the coordination
o emergency humanitarian assistance o the United Nations”, para. 2.
152 United States, State Department No. 02-50, 2002 WL 1517444
(Treaty), Memorandum o understanding between the United States
Department o Agriculture and the Oce o the United States Trade
Representative, and the Secretariat o Agriculture, Livestock, Rural
Development, Fisheries and Food and the Secretariat of Economy of
the United Mexican States regarding areas o ood and agricultural
trade, signed at Washington, D.C. and Mexico City on 29 March, and
1 and 3 April 2002.
the United States of America on precursors and chemical
substances frequently used in the illicit manufacture
o narcotic drugs or psychotropic substances calls or
“technical cooperation … in particular, training and
exchange programmes or the ocials concerned”,
but not in requiring that those ocials pass a certain
predetermined knowledge test.153
92. In line with other relevant international legal obligations,
by its very nature, cooperation regarding the
protection of persons in the event of disasters implies an
obligation o conduct and not one o result.
C. Categories o cooperation
93. In the context o the present topic, the duty to cooperate
has a well-dened goal, i.e. to protect persons in the
event o disasters. To meet this goal in practice, the duty
to cooperate most often covers activities such as “medical
care, ood, agricultural training, disaster relie, shelter,
education, clothing, water, proessional exchanges,
institutional reform, technical assistance, and support of
human rights and civil liberties”.154 The duty to cooperate
must be understood as encompassing a great variety o
coordinating, technical, scientic and logistical activities.
Guidance as to the extent of such activities under draft
article 5 can be ound in other related international legal
rules that specify the nature of the cooperation involved.
94. Cooperation has been addressed in specic terms
in various United Nations instruments. The General
Assembly, in resolution 46/182, explained how the United
Nations should adopt a coordinating role and—as an
indicative list—should
establish a central register o all specialized personnel and teams o
technical specialists, as well as relief supplies, equipment and services
available within the United Nations system and from Governments and
intergovernmental and non-governmental organizations, that can be
called upon at short notice by the United Nations.155
The Declaration on the Establishment o a New International
Economic Order calls, in turn, for, inter alia, the
strengthening o “technical cooperation”. Such cooperation
was also called for by the Economic and Social
Council in its aorementioned resolution 2008/36, which
focused on humanitarian assistance. The last two instruments,
however, do not elaborate on the meaning o
“technical cooperation”.
95. Some multilateral instruments reer to specic
categories o cooperation without accompanying them
by indicative or exhaustive lists. For example, the International
Covenant on Economic, Social and Cultural
Rights reers to economic and technical cooperation (art. 2)
and to the creation o specic programmes on the problem
o hunger (art. 11). A series o environmental instruments
also call or coordination on the basis o such general
categories. The 1972 Declaration o the United Nations
Conference on the Human Environment (“Stockholm
Declaration”) provides or “accelerated development
153 Ofcial Journal o the European Communities, L 164/27,
21 June 1997, art. 9.
154 Holland Anthony, “The responsible role for international
charitable grantmaking in the wake o the September 11, 2001 terrorist
attacks”, p. 911.
155 Annex, para. 27.
Protection of persons in the event of disasters 25
through nancial and technological assistance”, which
“includes scientic inormation and expertise relevant
to mitigating environmental degradation”.156 The Vienna
Convention for the Protection of the Ozone Layer calls for
inormation-sharing among all Parties to that Convention
o scientic, technical, socioeconomic, commercial and
legal inormation relevant to that Convention (art. 4,
para. 1). Finally, the Montreal Protocol on Substances that
Deplete the Ozone Layer appeals to developed nations
to provide nancial assistance and technology to lessdeveloped
nations (arts. 5 and 10).
96. Other multilateral treaties provide more detailed
examples that help to clariy the general categories o
cooperation that they identify. The Convention on the
Rights o Persons with Disabilities indicates, in article 32,
paragraph 1 (d), that “technical and economic assistance”
includes “acilitating access to and sharing o accessible
and assistive technologies, and through the transer o
technologies”. Similarly, the Tampere Convention, in article
3, paragraph 2 (c), calls for “the provision of prompt
telecommunication assistance to mitigate the impact o
a disaster”, to be accomplished by means such as “the
installation and operation o reliable, fexible telecommunication
resources to be used by humanitarian relief and
assistance organizations” (art. 3, para. 2 (d)).
97. In an even more detailed fashion, article 18 of the
ASEAN Agreement holds the ollowing:
Technical Cooperation
1. In order to increase preparedness and to mitigate disasters, the
Parties shall undertake technical co-operation, including the ollowing:
(a) facilitate mobilisation of appropriate resources both within
and outside the Parties;
(b) promote the standardisation o the reporting ormat o data
and inormation;
(c) promote the exchange o relevant inormation, expertise,
technology, techniques and know-how;
(d) provide or make arrangements or relevant training,
public awareness and education, in particular, relating to disaster
prevention and mitigation;
(e) develop and undertake training programmes or policy
makers, disaster managers and disaster responders at local, national
and regional levels; and
(f) strengthen and enhance the technical capacity o the Parties
to implement this Agreement.
2. The AHA Centre shall facilitate activities for technical
cooperation as identied in paragraph 1 above.
98. The Convention on assistance in the case o a nuclear
accident or radiological emergency provides general
headings or the type o cooperation it envisages and a
detailed list o actions under each heading. For example,
it allows the International Atomic Energy Agency to
(b) Assist a State [p]arty or a [m]ember State when requested in any
o the ollowing or other appropriate matters:
(i) preparing both emergency plans in the case o nuclear accidents
and radiological emergencies and the appropriate legislation;
156 See Report of the United Nations Conference on the Human
Environment, Stockholm, 5–16 June 1972 (United Nations publication,
Sales No. E.73.II.A.14 and Corr.), Part One, chap. I.
(ii) developing appropriate training programmes or personnel to
deal with nuclear accidents and radiological emergencies;
(iii) transmitting requests or assistance and relevant inormation
in the event o a nuclear accident or radiological emergency;
(iv) developing appropriate radiation monitoring programmes,
procedures and standards;
(v) conducting investigations into the easibility o establishing
appropriate radiation monitoring systems.
While not exhaustive, the oregoing list gives a clear
indication o many orms o cooperation allowing, by
analogy, an evaluation o other possible orms.
99. In other elds, most bilateral agreements that
call for some form of technical cooperation provide a
list with the types of assistance that such cooperation
encompasses. For example, the International Tribunal
or the Former Yugoslavia concluded agreements with
domestic jurisdictions to provide technical assistance and
evidence or domestic trials. Those agreements mentioned
the type of technical assistance involved. Additionally, the
United States–Mexico memorandum o understanding on
agriculture enumerated specic types o activities such as
umigation,157 while the United States–Republic o Korea
memorandum o understanding on science and technology
explained that cooperation included “research, exchanges
o scientic inormation, scientic visits, individual
exchanges, joint seminars and workshops, and other
orms o activities as are mutually agreed upon”.158
100. As indicated in the preceding paragraphs, instruments
in the eld o disaster response reer, broadly
speaking, to scientic, technical and logistical cooperation.
That includes the coordination of communication
and the sharing o inormation; the provision o personnel,
response equipment and supplies; and the extension
o scientic and technical expertise to strengthen the
response capacity o the aected State. Owing to the
nature of many of the requirements of disaster relief
eorts, regulatory barriers to the entry o personnel,
equipment and supplies pose a particular challenge and
are thus treated by a variety o international, regional
and bilateral agreements. Additionally, a signicant
number o more recent agreements have ocused on
ex ante cooperation emphasizing disaster prevention and
preparedness, including search and rescue arrangements,
standby capacity requirements, early warning systems,
exchange o inormation pertaining to risk identication,
and contingency planning.
1. CommunICatIon and exChange oF InFormatIon
101. One aspect of cooperation that is frequently
mentioned in disaster relief instruments is communication.
The coordination o communication and exchange o
information is essential to effective disaster response.
Accordingly, many o the instruments that deal with
157 See ootnote 152 above.
158 Memorandum o understanding between the National Science
Foundation of the United States of America and the Korea Science
and Engineering Foundation o the Republic o Korea concerning
Cooperation in Science and Technology, signed at Arlington on
21 September 2000.
26 Documents of the sixty-fourth session
disaster relief also touch on the topic of information
exchange.159 For example, the preamble of the Tampere
Convention notes “the vital role o broadcasting in
disseminating accurate disaster inormation to at-risk
populations”,160 and the Framework Convention on
civil defence assistance requires the affected State to
“provide all necessary inormation available relating to
the situation, so as to ensure smooth implementation of
assistance” (art. 4 (a) (1)). The Hyogo Framework or
Action 2005–2015 also emphasizes the central role o
inormation exchange, dialogue and cooperation in the
context of disasters.161
102. The approach taken by various instruments with
regard to communications varies, as some provisions reer
generally to the desirability o eective disaster relie
communications or a general obligation o the aected
State to facilitate communications, while others contain
more specic direction pertaining to the acilitation
of disaster relief communications. For example, the
International Law Association model bilateral agreement
provides that
in the zone o operations … the organization shall have the right to
communicate by radio, telegraph, or by any other means and to establish
the necessary means for the maintenance of said communications
in the interior of its facilities or between these facilities and its service
units.162
Likewise, the Guidelines on the Use o Foreign Military
and Civil Defence Assets in Disaster Relief (Oslo
Guidelines) state that “the Affected State should provide
to the international disaster community timely and
accurate inormation on the nature and magnitude o the
disaster, in order to enhance the effectiveness of external
assistance”.163
159 See, or example, the Agreement between Denmark, Finland,
Norway and Sweden on cooperation across State frontiers to prevent or
limit damage to persons or property or to the environment in the case
o accidents, 1989, art. 6 (1). (“The Contracting States shall provide
each other with inormation o importance or this agreement”.) See
also Agreement among the Governments o the Participating States
of the Black Sea Economic Cooperation (BSEC) on collaboration in
Emergency Assistance and Emergency Response to natural and manmade
Disasters (“Black Sea Agreement”), art. 4 (4).
160 See also article 3 (2), which calls or “the deployment o
terrestrial and satellite telecommunication equipment to predict,
monitor and provide inormation concerning natural hazards, health
hazards and disasters”, and “the sharing o inormation about natural
hazards, health hazards and disasters among the States Parties and with
other States, non-State entities and intergovernmental organizations,
and the dissemination of such information to the public, particularly to
at-risk communities”.
161 Report of the World Conference on Disaster Reduction, Kobe,
Hyogo, Japan, 18–22 January 2005 (A/CONF.206/6 and Corr.1),
chap. I, resolution 2, Hyogo Framework or Action 2005–2015:
Building the Resilience o Nations and Communities to Disasters.
162 Drat Model Agreement on International Medical and Humanitarian
Law, art. 6. Report of the Fifty-ninth Conference of the International
Law Association, Belgrade, 17–23 August 1980, p. 523. See
alsoAgreement between the Swiss Federal Council and the Government
of the Republic of the Philippines on Cooperation in the Event of
Natural Disaster or Major Emergencies, 6 December 2001, art. 8 (2)
(“the competent authorities o the requesting State shall undertake … to
acilitate the use by the aid units o existing telecommunication systems
or the use of special frequencies, or both, or the establishment by the aid
units o an emergency telecommunications system”).
163 OCHA, Guidelines on the Use o Foreign Military and Civil
Defence Assets in Disaster Relief (also known as the Oslo Guidelines)
o 2006, as revised 1 November 2007, para. 54.
103. In the vein o substantive measures to acilitate
communications, the Agreement establishing the
Caribbean Disaster Emergency Response Agency
provides, in article 11 (c), for the creation and maintenance
o an emergency operations system to handle emergency
telecommunications. The most comprehensive instrument
in this area is the Tampere Convention, which provides
a regulatory ramework or cooperation with respect to
the utilization of telecommunications and information
technology in disasters.
2. sCIentIFIC and teChnICal assIstanCe
104. Another oten-mentioned modality o cooperation is
the provision o scientic, technical or technological assistance
and expertise. Different classes of disasters may call for
specic technologies or expertise that are either not readily
available in the affected country or that are not available
in sucient degree or quantity. Consequently, a number o
instruments reer specically to the provision o scientic
and technical assistance, such as the ASEAN Agreement,
which, in article 18, entitled “Technical cooperation”, calls
or Parties to “promote the exchange o relevant inormation,
expertise, technology, techniques and know-how”.164
The Framework Convention on civil defence assistance
also refers, in article 2 (a), to cooperation with regard to
the exchange o expertise. Moreover, a number o bilateral
agreements provide or mutual assistance in scientic and
technical matters as well.165
105. Technology can also enhance communication,
as the utilization of telecommunications and information
technology can substantially improve inormation
exchange and increase the overall ecacy and eciency
of disaster relief efforts. The Tampere Convention deals
with the provision of telecommunications assistance,
including equipment, materials, inormation, training,
radio-requency spectrum, network or transmission capacity
or other resources necessary to telecommunications.
Another agreement that reers to a specic class o
technological cooperation is the Charter on Cooperation
to Achieve the Coordinated Use of Space Facilities in
the Event o Natural or Technological Disasters (also
known as the International Charter on Space and Major
Disasters), which relates to coordination of satellite technology
in the disaster relie context.166
3. relIeF personnel
106. Eective disaster relie also necessitates coordination
with regard to the provision o emergency response
personnel to strengthen the response capacity o the
aected State, including medical teams, search and rescue
teams, and technical specialists. A number of instruments
164 Art. 18 (c). See paragraph 97 above.
165 See, or example, Convention on mutual assistance in combating
disasters and accidents (Netherlands–Belgium) (The Hague,
14 November 1984), art. 13 (stating that the Parties should exchange all
useul inormation o a scientic and technical nature) (United Nations,
Treaty Series, vol. 1526, No. 26466, p. 27, at p. 47); see also Protocol
on technical cooperation and mutual assistance in the eld o civil
deence (Spain–Portugal) (Evora, 9 March 1992), art. 1 (2) (ibid.,
vol. 1730, No. 30218, p. 191); and Agreement on cooperation on
disaster preparedness and prevention, and mutual assistance in the
event o disasters (Spain–Argentia) (Madrid, 3 June 1988), art. IV
(ibid., vol. 1689, No. 29123, p. 23).
166 Available rom www.disasterscharter.org.
Protection of persons in the event of disasters 27
call upon States to coordinate efforts and facilitate the
expedited entry of relief personnel. These include General
Assembly resolutions 46/182 o 19 December 1991167
and 57/150 o 16 December 2002,168 as well as the
Measures to expedite international relief169 adopted by
the International Conference of the Red Cross and Red
Crescent Societies and the Economic and Social Council
in 1977 and endorsed by the General Assembly in resolution
32/56 o 8 December 1977.170
107. In addition to the entry of personnel, instruments
also deal with the coordination, facilitation and supervision
of the provision of assistance within the affected State.
Common issues are freedom of movement, transport of
personnel, access to facilities, and coordination with the
aected State, including the provision o support, relevant
inormation, guidance, and translation and interpretation
services. The General Assembly, in its resolution 46/182,
reerred broadly to “acilitating” the work o relie teams.
The Tampere Convention provides, in article 9, that “the
States Parties shall, when possible, and in conformity
with their national law, reduce or remove … regulations
restricting the movement o personnel who operate
telecommunication equipment or who are essential to
its eective use”, and the Oslo Guidelines call, in paragraph
60, or “ree access to disaster zones” or relie
teams. TheAgreement establishing the Caribbean Disaster
Emergency Response Agency provides, in articles 16
and 22, or the cooperation o the aected State in making
available local acilities and services and acilitating the
in-country transit o relie personnel.
108. A number o instruments, including the Framework
Convention on civil defence assistance, the Tampere
Convention (art. 5, para. 3), the Inter-American Convention
to Facilitate Disaster Assistance, and the Oslo Guidelines
deal with the identication and protection o relie
personnel. The General Assembly, in paragraph 4 o its
resolution 57/150, urged “all States to undertake measures
to ensure the safety and security of international urban
search and rescue teams operating in their territory”.
4. relIeF supplIes and equIpment
109. Disaster relief efforts also require a variety of
goods and equipment. Victims o disaster need ood,
clothing, medicine and other items to support their basic
needs. Relief teams require equipment such as telephones,
radios, computers, vehicles and construction equipment
in order to operate eectively. While some goods and
equipment necessary in the aftermath of a disaster may
be found locally, there may be a need to import items in
the event o a shortage o goods and equipment in the
aected State. Owing to the nature o disasters, the rapid
attainment of relief supplies is critical. Moreover, many
of those items, such as food and medicine, could spoil or
167 Paras. 27 and 28.
168 Para. 3.
169 ICRC/IFRC, Handbook of the International Red Cross and Red
Crescent Movement, 14th ed., Geneva, ICrC/IFrC, 2008, p. 1226.
170 See also Inter-American Convention to Facilitate Disaster
Assistance, art. VII; and League o Arab States Decision No. 39
(Arab Cooperation Agreement on Regulating and Facilitating Relie
Operations), art. 3.
expire if not transported and delivered in a timely manner.
Cooperation in the area of provision and facilitation of
entry of relief supplies and equipment is particularly
crucial because many o the necessary items are highly
regulated by domestic law. Those items include oods,
medicines, machines, telecommunications equipment,
vehicles and rescue dogs.
110. As such, many agreements and guidelines deal
with the facilitation of rapid access to disaster relief
equipment and supplies. Some instruments specify those
items and treat them in detail, while others make general
provisions or “relie supplies and equipment”, which
encompass a variety of items. The General Assembly, in
its resolution 46/182, called generally or coordination to
acilitate expeditious access to relie supplies and suggested
that “disaster-prone countries should develop special
emergency procedures to expedite the rapid procurement
and deployment o equipment and relie supplies”.171 The
Measures to expedite international relief172 also focus on
coordination to avoid delay because o regulatory barriers.
111. Some instruments highlight equipment and
supplies with specicity. The ASEAN Agreement, or
example, mentions, in article 14 (a), telecommunications
equipment and vehicles specically. General Assembly
resolution 46/182 and the International Convention on the
simplication and harmonization o Customs procedures
(“Kyoto Convention”) call on aected States to assist
in the entry of medicines. The Kyoto Convention also
expressly reers to “specially trained animals” among the
types o relie consignments that should be prioritized
or expedited processing. Several bilateral agreements,
such as the Agreement between Sweden and Norway
concerning the improvement o rescue services in
frontier areas173 and the Agreement between the Swiss
Federal Council and the Government of the Republic of
the Philippines on Cooperation in the Event of Natural
Disaster or Major Emergencies o 2001, also deal with the
entry process or specially trained rescue dogs.
112. Agreements also provide or the re-export o
goods to ensure that relie supplies and equipment can
be eciently redirected to where they are most needed.
The ASEAN Agreement calls, in article 14 (b), for the
facilitation of “the entry into, stay in, and departure from*
its territory of personnel and of equipment, facilities, and
materials involved or used in the assistance”. Similarly,
the Tampere Convention, in article 9, paragraph 2 (d),
calls or reduction o “regulations restricting the transit o
telecommunication resources into, out o, and through the
territory o a State party”.
113. Cooperation involves both accommodation by
the affected State to expedite and facilitate the provision
o relie assistance and coordination and planning by
assisting actors to reduce the complications o providing
relie. I assisting actors are inormed o and prepare
adequately for the requirements of the affected State,
the process can be made more ecient. The Measures
171 Annex, para. 30.
172 Handbook of the International Red Cross and Red Crescent
Movement (ootnote 169 above), Recommendation D.
173 Signed at Oslo on 19 March 1974 (United Nations, Treaty Series,
vol. 1424, No. 24063, p. 301).
28 Documents of the sixty-fourth session
to expedite international relief call on “donors to restrict
their relie contributions to those high-priority relie
needs identied by appropriate relie authorities and
agencies”.174 Many instruments provide or a degree
o specicity to the requests o aected States, and or
assisting actors to comply with those requests. The Inter-
American Convention to Facilitate Disaster Assistance,
for example, states in article II (b) that
[u]pon the occurrence o a disaster the assisting State shall consult with
the assisted State to receive from the latter information on the kind of
assistance considered most appropriate to provide to the populations
stricken by the disaster.
Communication as to the requirements, capacities and
expectations of concerned parties can facilitate the relief
process signicantly and reduce the diculty caused by
regulation.
5. CooperatIon In dIsaster preparedness,
preventIon and mItIgatIon
114. More recent conventions have shifted the focus from
a primarily response-centricmodel to one ocused largely on
prevention and preparedness. Many instruments deal with
not only cooperation as it pertains to relief assistance, but
also with the prevention and mitigation o disasters: search
and rescue arrangements, standby capacity requirements,
early warning systems, exchange o inormation pertaining
to risk assessment and identication, contingency planning
and capacity-building.
115. The Hyogo Framework or Action puts a large
degree o emphasis on prevention and preparedness,
stating that one o the agreement’s primary objectives is “to
share good practices and lessons learned to urther disaster
reduction within the context o attaining sustainable
development, and to identiy gaps and challenges”.175
The General Assembly, in resolution 46/182,176 called for
cooperation in sharing scientic and technical inormation
related to the assessment, prevention, mitigation and early
174 Handbook... (ootnote 169 above), Recommendation F.
175 A/CONF.206/6 and Corr.1, chap. I, resolution 2, para. 10 (c).
176 Annex, paras. 5, 13 and 14.
warning o disasters as well as assistance to developing
States to bolster their capacity in disaster prevention and
mitigation, while in paragraph 7 o resolution 57/150 the
Assembly more generally encouraged “the strengthening
o cooperation among States at the regional and
subregional levels in the eld o disaster preparedness
and response, with particular respect to capacity-building
at all levels”.177 Other instruments call for cooperation in
regard to the training o experts, research, and studies to
increase preparedness, such as the ASEAN Agreement,
which states, in article 19, paragraph 1, that
the Parties shall individually or jointly, including in cooperation
with appropriate international organizations, promote and, whenever
possible, support scientic and technical research programmes related
to the causes and consequences of disasters and the means, methods,
techniques and equipment for disaster risk reduction.
116. In the light o all o the above, the Special
Rapporteur concludes that the inclusion is warranted in
the set of draft articles on Protection of persons in the
event o disasters o an additional drat article concerning
the elaboration of the duty to cooperate. That additional
drat article, whose number and placing in the set is to
be decided at a later stage, can most economically and
useully be modelled on article 17, paragraph 4, o the
draft articles on the Law of transboundary aquifers, cited
earlier.178 The proposed additional draft article would thus
read as follows:
“Draft article A. Elaboration of the duty to cooperate
“States and other actors mentioned in drat article 5
shall provide to an aected State scientic, technical,
logistical and other cooperation, as appropriate.
Cooperation may include coordination of international
relie actions and communications, making available
relie personnel, relie equipment and supplies, scientic
and technical expertise, and humanitarian assistance.”
177 See also Southern African Development Community Protocol
on Health, art. 25 (b) (calling or Parties to “collaborate and acilitate
regional eorts in developing awareness, risk reduction, preparedness
and management plans or natural and man-made disasters”).
178 See paragraph 85 above.
Chapter Iv
Conditions for the provision of assistance
117. The Commission has established in draft article 9
that an aected State, by virtue o its sovereignty, has the
duty to ensure the protection of persons and to ensure
the provision of humanitarian assistance on its territory.
It also has the primary role to direct, control, coordinate
and supervise such assistance within its territory. The
Special Rapporteur will now consider the conditions that
an affected State may place on the provision of assistance.
118. In determining the extent o appropriate conditions,
it is necessary to reiterate the core principles of State
sovereignty and non-intervention.The Special Rapporteur,
in his third report, noted that “the correlating principles
o sovereignty and non-intervention presuppose a given
domestic sphere, or a domaine réservé, over which a State
may exercise its exclusive authority”.179 In ormulating his
proposal for draft article 9, the Special Rapporteur took
particular note o the principles o State sovereignty and
non-intervention, concluding that “it is clear that a State
affected by a disaster has the freedom to adopt whatever
measures it sees t to ensure the protection o the persons
ound within its territory”.180 As such, the affected State
may impose conditions on the provision of assistance,
including compliance with its national laws and ullling
demonstrated needs.
179 Yearbook … 2010, vol. II (Part One), document A/CN.4/629,
para. 75.
180 Ibid., para. 74.
1
PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
[Agenda item 4]
DOCUMENT A/CN.4/662
Sixth report on the protection of persons in the event of disasters,
by Mr. Eduardo Valencia-Ospina, Special Rapporteur
[Original: English]
[3 May 2013]
CONTENTS
Page
Multilateral instruments cited in the present report ........................................................................................................................................ 2
Works cited in the present report .................................................................................................................................................................... 3
Paragraphs
Introduction............................................................................................................................................................................. 1–10 4
Prevention................................................................................................................................................................................ 11–162 6
A. Historical development of the concept of disaster risk reduction ....................................................................... 11–35 6
B. Prevention as a principle of international law ................................................................................................... 36–69 9
1. Human rights law ....................................................................................................................................... 42–53 11
2. Environmental law...................................................................................................................................... 54–69 13
(a) Due diligence...................................................................................................................................... 61–65 14
(b) Precautionary principle....................................................................................................................... 66–69 15
C. International cooperation on prevention............................................................................................................. 70–112 16
1. Bilateral instruments................................................................................................................................... 76–81 17
2. Multilateral instruments.............................................................................................................................. 82–112 18
(a) Global instruments.............................................................................................................................. 85–93 19
(b) Regional instruments .......................................................................................................................... 94–112 21
D. National policy and legislation........................................................................................................................... 113–161 24
1. Risk prevention........................................................................................................................................... 123–140 27
(a) Risk assessment .................................................................................................................................. 124–130 27
(b) Collection and dissemination of risk information .............................................................................. 131–136 28
(c) Land use controls................................................................................................................................ 137–140 29
2. Mitigation of harm...................................................................................................................................... 141–144 30
(a) Construction standards ....................................................................................................................... 142 30
(b) Insurance............................................................................................................................................. 143–144 30
3. Preparedness ............................................................................................................................................... 145–161 30
(a) Institutional framework ...................................................................................................................... 146–149 30
(b) Funding............................................................................................................................................... 150 31
(c) Community preparedness and education............................................................................................ 151–152 32
(d) Early warning ..................................................................................................................................... 153–161 32
E. Proposals for draft articles.................................................................................................................................. 162 33
2 Documents of the sixty-fifth session
Multilateral instruments cited in the present report
Source
Convention and Statute establishing an International Relief Union (Geneva, 12 July 1927) League of Nations, Treaty Series,
vol. 135, No. 3115, p. 247.
Convention on the Prevention and Punishment of the Crime of Genocide
(Paris, 9 December 1948)
United Nations, Treaty Series, vol. 78,
No. 1021, p. 277.
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights) (Rome, 4 November 1950)
Ibid., vol. 213, No. 2889, p. 221.
Treaty establishing the European Economic Community (Rome, 25 March 1957) United Nations, Treaty Series,
vol. 298, No. 4300, p. 3. See also
the consolidated versions of the
Treaty establishing the European
Community, Official Journal of the
European Communities, No. C 340,
10 November 1997, p. 173, and the
Treaty on the Functioning of the
European Union, Official Journal
of the European Union, No. C 306
(17 December 2007), p. 1.
International Covenant on Economic, Social and Cultural Rights
(New York, 16 December 1966)
United Nations, Treaty Series,
vol. 993, No. 14531, p. 3.
International Covenant on Civil and Political Rights (New York, 16 December 1966) Ibid., vol. 999, No. 14668, p. 171.
Convention on the prevention of marine pollution by dumping of wastes and other matter
(London, Mexico City, Moscow and Washington, D.C., 29 December 1972)
Ibid., vol. 1046, No. 15749, p. 120.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) Ibid., vol. 1833, No. 31363, p. 3.
Convention against torture and other cruel, inhuman or degrading treatment or punishment
(New York, 10 December 1984)
Ibid., vol. 1465, No. 24841, p. 85.
Vienna Convention for the Protection of the Ozone Layer (Vienna, 22 March 1985) Ibid., vol. 1513, No. 26164, p. 293.
Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal, 16 September 1987) Ibid., vol. 1522, No. 26369, p. 3.
Convention on Early Notification of a Nuclear Accident (Vienna, 26 September 1986) Ibid., vol. 1439, No. 24404, p. 275.
Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency
(Vienna, 26 September 1986)
Ibid., vol. 1457, No. 24643, p. 133.
Convention on the Regulation of Antarctic Mineral Resource Activities
(Wellington, 2 June 1988)
ILM, vol. XXVII, No. 4 (July 1988),
p. 868.
Convention on the Rights of the Child (New York, 20 November 1989) United Nations, Treaty Series, vol. 1577,
No. 27531, p. 3.
Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary
Movement and Management of Hazardous Wastes within Africa
(Bamako, 30 January 1991)
Ibid., vol. 2101, No. 36508, p. 177.
Convention on environmental impact assessment in a transboundary context
(Espoo, 25 February 1991)
Ibid., vol. 1989, No. 34028, p. 309.
Agreement establishing the Caribbean Disaster Emergency Response Agency
(Port of Spain, 26 February 1991)
Ibid., vol. 2256, No. 40212, p. 53.
Inter-American Convention to Facilitate Disaster Assistance (Santiago, 7 June 1991) OAS, Official Records, OEA/Ser.A/49
(SEPF), p. 15.
Convention on the Protection and Use of Transboundary Watercourses and International Lakes
(Helsinki, 17 March 1992)
United Nations, Treaty Series, vol. 1936,
No. 33207, p. 269. See also ILM,
vol. 31, No. 6 (November 1992),
p. 1312.
Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992) United Nations, Treaty Series, vol. 2105,
No. 36605, p. 457.
United Nations Framework Convention on Climate Change (New York, 9 May 1992) Ibid., vol. 1771, No. 30822, p. 107.
Convention on biological diversity (Rio de Janeiro, 5 June 1992) Ibid., vol. 1760, No. 30619, p. 79.
Cooperation Agreement on the Forecast, Prevention and Mitigation of Natural and
Technological Disasters (Vienna, 18 July 1992)
Available from www.biicl.org/files/4299
_cei_cooperation_agreement.pdf.
Convention (No. 174) concerning the prevention of major industrial accidents
(Geneva, 22 June 1993)
United Nations, Treaty Series, vol. 1967,
No. 33639, p. 231.
Convention on Nuclear Safety (Vienna, 20 September 1994) Ibid., vol. 1963, No. 33545, p. 293.
Convention to combat desertification in those countries experiencing serious drought and/or
desertification, particularly in Africa (Paris, 14 October 1994)
Ibid., vol. 1954, No. 33480, p. 3.
Convention on the Law of the Non-navigational Uses of International Watercourses
(New York, 21 May 1997)
Official Records of the General Assembly,
Fifty-first Session, Supplement No. 49,
vol. III, resolution 51/229, annex.
Protection of persons in the event of disasters 3
Source
Treaty on Amsterdam amending the Treaty on European Union, the Treaties establishing the
European Communities and certain related acts (Amsterdam, 2 October 1997)
Official Journal of the European
Communities, No. C 340
(10 November 1997), p. 1.
Agreement among the Governments of the Participating States of the Black Sea Economic
Cooperation (BSEC) on collaboration in Emergency Assistance and Emergency Response
to natural and man-made disasters (Sochi, 15 April 1998)
Available from www.bsec-organization.org/
UploadedDocuments/Statutory
DocumentsAgreements/Emergency
Agreement071116.pdf.
Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation
and Relief Operations (Tampere, 18 June 1998)
United Nations, Treaty Series, vol. 2296,
No. 40906, p. 5.
Agreement between Member States and Associate Members of the Association of Caribbean
States for Regional Cooperation on Natural Disasters (Santo Domingo, 17 April 1999)
Available from www.acs-aec.org/index
.php?q=documents/osg/1999/agree
ment-between-member-states-and-as
sociate-members-of-the-association
-of-carib.
Treaty for the establishment of the East African Community (Arusha, 30 November 1999) United Nations, Treaty Series, vol. 2144,
No. 37437, p. 255.
Framework Convention on civil defence assistance (Geneva, 22 May 2000) Ibid., vol. 2172, No. 38131, p. 213.
Constitutive Act of the African Union (Lomé, 11 July 2000) Ibid., vol. 2158, No. 37733, p. 3.
ASEAN Agreement on Disaster Management and Emergency Response
(Vientiane, 26 July 2005)
ASEAN Documents Series 2005, p. 157.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing
the European Community (Lisbon, 13 December 2007)
Official Journal of the European Union,
No. C 306 (17 December 2007), p. 1.
Works cited in the present report
Barnidge, Robert Perry Jr.
“The due diligence principle under international law”, International
Community Law Review, vol. 8, No. 1, 2006, p. 81.
Baum, Marsha
When Nature Strikes: Weather Disasters and the Law. Westport,
Connecticut, Praeger, 2007.
Cameron, Linda
“Environmental risk management in New Zealand—is there scope
to apply a more generic framework?”, New Zealand Treasury
Policy Perspectives Paper 06/06, 2006.
Condorelli, Luigi
“The imputability to States of acts of international terrorism”, Israel
Yearbook on Human Rights, vol. 19, 1989, p. 233.
Drakopoulos, J. and S. Tassos
“Earthquakes and their social, economic and legal implications”,
Proceedings of the Seminar on Earthquake Preparedness, Athens,
11–14 January 1983, Geneva, Office of the United Nations
Disaster Relief Coordinator, 1984.
Farber, Daniel A. and Jim Chen
Disasters and the Law: Katrina and Beyond. New York, Aspen
Publishers, 2006.
Feinberg, David L.
“Hurricane Katrina and the public health-based argument for greater
federal involvement in disaster preparedness and response”,
Virginia Journal of Social Policy and the Law, vol. 13, No. 3
(2005–2006), p. 596.
Fisher, David
Law and Legal Issues in International Disaster Response: A Desk
Study. Geneva, IFRC, 2007.
Francis, Julian
“Legal aspects of disaster management and rehabilitation: the recent
Indian experience of the tsunami disaster”, in C. Raj Kumar and
D. K. Srivastava, eds., Tsunami and Disaster Management: Law
and Governance. Hong Kong, Sweet & Maxwell Asia, 2006,
p. 243.
Fortun, Kim
“Environmental right-to-know and the transmutations of law”,
in Austin Sarat and Javier Lezaun, eds., Catastrophe: Law,
Politics and The Humanitarian Impulse. Amherst, University of
Massachusetts Press, 2009, p. 146.
Garcia, Márcio Pereira Pinto
“Famine as a catastrophe: the role of international law”, in David
D. Caron and Charles Leben, eds., The International Aspects
of Natural and Industrial Catastrophes. The Hague, Martinus
Nijhoff, 2001, p. 229.
Gestri, Marco
“EU Disaster response law: principles and instruments”, in
Andrea de Guttry, Marco Gestri and Gabriella Venturini, eds.,
International Disaster Response Law. The Hague, T.M.C. Asser
Press, 2012, p. 105.
Green, Stephen
International Disaster Relief: Toward a Responsive System.
New York, McGraw-Hill Book Company, 1977.
Hand, Jacqueline
“Disaster prevention presentation, from SCJIL symposium 2003”,
Santa Clara Journal of International Law, vol. 1, No. 1, 2003,
p. 147.
Harding, Ronnie and Elizabeth Fisher, eds.
Perspectives on the Precautionary Principle. Sydney, Federation
Press, 1995.
Hessbruegge, Jan Arno
“The historical development of the doctrines of attribution and due
diligence in international law”, New York University Journal of
International Law and Politics, vol. 36, No. 2/3, 2004, p. 265.
Kälin, Walter and Claudine Haenni Dale
“Disaster risk mitigation—why human rights matter”, Forced
Migration Review, No. 31, October 2008, p. 38.
Kent, George
“The human right to disaster mitigation and relief ”, Environmental
Hazards, vol. 3, 2001.
4 Documents of the sixty-fifth session
Kriebaum, Ursula
“Prevention of human rights violations”, Austrian Review of
International and European Law, vol. 2, No. 2, 1997, p. 155.
La Vaccara, Alessandra
“An enabling environment for disaster risk reduction”, in Andrea de
Guttry, Marco Gestri and Gabriella Venturini, eds., International
Disaster Response Law. The Hague, T.M.C. Asser Press, 2012,
p. 199.
McInerney-Lankford, Siobhán, Mac Darrow and Lavanya Rajamani
Human Rights and Climate Change: A Review of the International
Legal Dimensions. Washington, D.C., World Bank, 2011.
Moréteau, Olivier
“Catastrophic harm in United States law: liability and insurance”,
American Journal of Comparative Law, vol. 58, 2010, p. 69.
Nicoletti, Barbara
“The prevention of natural and man-made disasters: what duties
for States?”, in Andrea de Guttry, Marco Gestri and Gabriella
Venturini, eds., International Disaster Response Law, The
Hague, T.M.C. Asser Press, 2012, p. 177.
Nowak, Manfred
UN Covenant on Civil and Political Rights, CCPR Commentary.
2nd revised ed. Kehl, N. P. Engel, 2005.
Nowak, Manfred and Walter Suntinger
“International mechanisms for the prevention of torture”, in Arie
Bloed, Liselotte Leicht, Manfred Nowak and Allan Rosas, eds.,
Monitoring Human Rights in Europe. Dordrecht, Martinus
Nijhoff, 1993, p. 145.
Pisillo-Mazzeschi, Riccardo
“The due diligence rule and the nature of the international
responsibility of States”, German Yearbook of International
Law, vol. 35, 1992, p. 9.
“Forms of international responsibility for environmental harm”, in
Francesco Francioni and Tullio Scovazzi, eds., International
Responsibility for Environmental Harm. London, Graham &
Trotman, 1991, p. 15.
1. At the sixty-fourth session of the International Law
Commission, in 2012, the Special Rapporteur submitted
his fifth report on the protection of persons in the event of
disasters.1 He provided therein an overview of the views
* The Special Rapporteur expresses his deep appreciation to the Special
Representative of the Secretary-General for Disaster Risk Reduction,
Margareta Wahlstrom, and her adviser, Marco Toscano-Rivalta, for
their encouragement and support. His appreciation for assistance in the
preparation of the present report extends to the following: Matthias A.
Braeunlich, PhD candidate, The Graduate Institute, Geneva; Melissa
Stewart, JD candidate and Global Law Scholar, Georgetown University
Law Center, Washington, D.C., and LLM candidate, Institut d’études
politiques de Paris; Trent Buatte, JD candidate, and Josh Doherty, JD/
MA candidate, George Washington University Law School, Washington,
D.C.; Emika Tokunaga, PhD candidate, Osaka School of International
Public Policy, Osaka University; Amogh Basavaraj, MA in
law and diplomacy 2013, Amanda Mortwedt, LLM 2013, Katherine
Conway, MA in law and diplomacy 2013, Yang Fu, MA in law and
diplomacy 2014, and Suparva Narasimhaiah, LLM 2012, The Fletcher
School of Law and Diplomacy, Tufts University, Medford (Massachusetts),
United States; and Paul R. Walegur, The Hague, Netherlands.
The Special Rapporteur also expresses his gratitude to Andrea de Guttry,
Sant’Anna School of Advanced Studies of Pisa, Italy, co-editor of
International Disaster Response Law (The Hague, T.M.C. Asser Press,
2012), for making available to him well in advance of publication the
text of the valuable contributions included therein.
1 Yearbook … 2012, vol. II (Part One), document A/CN.4/652.
of States and organizations on the work undertaken by the
Commission to date, in addition to an explanation of his
position on the Commission’s question in its report on the
work of its sixty-third session, in 2011: “Does this duty
to cooperate include a duty on States to provide assistance
when requested by the affected State?”2 The report
contained a further elaboration of the duty to cooperate
and a discussion of the conditions for the provision of
assistance and of the question of the termination of assistance.
Proposals for the following three further draft
articles were made in the report: A (Elaboration of the
duty to cooperate),3 13 (Conditions on the provision of
assistance)4 and 14 (Termination of assistance).5
2. The Commission considered the fifth report from 2
to 6 July 2012,6 and referred all three draft articles to the
Drafting Committee. The Drafting Committee also had
2 Yearbook … 2011, vol. II (Part Two), para. 44.
3 Yearbook … 2012, vol. II (Part One), document A/CN.4/652,
para. 116.
4 Ibid., para. 181.
5 Ibid., para. 187.
6 Ibid., vol. I, 3138th to 3142nd meetings.
Romano, P. R. Cesare
“L’obligation de prévention des catastrophes industrielles et
naturelles”, in David D. Caron and Charles Leben, eds.,
Les aspects internationaux des catastrophes naturelles et
industrielles/The International Aspects of Natural and Industrial
Catastrophes. The Hague, Martinus Nijhoff, 2001, p. 379.
Samuels, J.W.
“The relevance of international law in the prevention and mitigation
of natural disasters”, in Lynn H. Stephens and Stephen J.
Green, eds., Disaster Assistance: Appraisal, Reform and New
Approaches. NewYork, NewYork University Press, 1979, p. 245.
Sunstein, Cass R.
Laws of Fear: Beyond the Precautionary Principle. New York,
Cambridge University Press, 2005.
Sutton, Jeannette and Kathleen Tierney
“Disaster preparedness: concepts, guidance and research”, report
prepared for the Fritz Institute “Assessing Disaster Preparedness”
Conference, Sebastopol, California, 3–4 November 2006.
Trouwborst, Arie
Precautionary Rights and Duties of States. Leiden, Martinus Nijhoff
Publishers, 2006.
“The precautionary principle in general international law: combating
the Babylonian confusion”, Review of European Community &
International Environmental Law, vol. 16, No. 2, 2007, p. 185.
UNISDR
Early Warning Practices Can Save Lives: Selected Examples: Good
Practices and Lessons Learned. Bonn, August 2010.
Van Boven, Theo
“Prevention of human rights violations”, in Asbjørn Eide and Jan
Helgesen, eds., The Future of Human Rights Protection in a
Changing World: Fifty Years since the Four Freedoms Address:
Essays in Honour of Torkel Opsahl. Oslo, Norwegian University
Press, 1991, p. 183.
World Bank
Analysis of Disaster Risk Management in Colombia: A Contribution
to the Creation of Public Policies. Bogota, 2011.
Introduction*
Protection of persons in the event of disasters 5
before it draft article 12 (Right to offer assistance), proposed
by the Special Rapporteur in his fourth report,7 the
consideration of which it had been unable to conclude at
the sixty-third session, in 2011, owing to a lack of time.
3. The Drafting Committee, in the light of the discussion
held by the Commission in plenary meeting, provisionally
adopted the following five additional draft articles: 5 bis
(Forms of cooperation), 12 (Offers of assistance), 13 (Conditions
on the provision of external assistance), 14 (Facilitation
of external assistance) and 15 (Termination of external
assistance).
4. The five draft articles were submitted to the Commission
in plenary meeting in a comprehensive report presented
by the Chair of the Drafting Committee on 30 July
2012.8 Owing to a lack of time for the subsequent preparation
and adoption of the corresponding commentaries,
the Commission at that meeting took note of draft articles
5 bis and 12 to 15 as provisionally adopted by the
Drafting Committee. The five draft articles were reproduced
in a Commission document9 and in the Commission’s
report on the work of its sixty-fourth session.10
5. In November 2012, at the sixty-seventh session of
the General Assembly, the Sixth Committee considered
the chapter of the Commission’s annual report devoted
to the Special Rapporteur’s fifth report and the Commission’s
debate thereon, particular attention being given to
draft articles 5 bis and 12 to 15, as adopted by the Drafting
Committee. Some delegations, for their part, concentrated
on draft articles A, 12, 13 and 14 as originally proposed
by the Special Rapporteur. A summary of the debate of the
Sixth Committee, has been prepared by the Secretariat at
the request of the Assembly (resolution 67/92 of 14 December
2012, para. 32).11
6. According to the syllabus supporting the recommendation
for inclusion of the present topic in the Commission’s
long-term programme of work,12 the focus of the
topic would be “the undertaking of activities aimed at
the prevention, and mitigation of the effects, of … disasters
as well as … the provision of humanitarian relief in
the immediate wake of … disasters”.13 The syllabus considered
“largely relevant today” the classification made
in General Assembly resolution 46/182 of 19 December
1991, of key activities undertaken in this area, which extended
to disaster prevention, mitigation and preparedness,
including through enhanced early warning capacities.
14 The syllabus also made reference to the findings of
the High-level Panel on Threats, Challenges and Change
in 2004, which identified the responsibility to prevent as
7 Yearbook … 2011, vol. II (Part One), document A/CN.4/643,
p. 222, para. 109.
8 Yearbook … 2012, vol. I, 3152nd meeting.
9 Document A/CN.4/L.812, mimeographed.
10 Yearbook … 2012, vol. II (Part Two), para. 56, footnote.
11 See the Topical summary of the discussion held in the Sixth Committee
of the General Assembly during its sixty-seventh session (A/
CN.4/657), paras. 16–25.
12 Yearbook … 2006, vol. II (Part Two), pp. 206–216, annex III.
13 Ibid., p. 206, para. 1.
14 Ibid., p. 207, para. 6.
one of the three specific responsibilities of the international
community, considering it “the most pertinent to
the topic at hand”.15 Thus, the scope of the topic ratione
temporis would comprise “not only the ‘response’ phases
of the disaster, but also the pre- and the post-disaster
phases”.16 Moreover, the syllabus listed the principles
of prevention and mitigation among the core principles
underpinning contemporary activities in the realm of protection
of persons in the event of disasters. With regard to
the former, “States are to review existing legislation and
policies to integrate disaster risk reduction strategies into
all relevant legal, policy and planning instruments, both
at the national and international levels, in order to address
vulnerability to disasters”. With regard to the latter,
“States are to undertake operational measures to reduce
disaster risks at the local and national levels with a view
to minimizing the effects of a disaster both within and
beyond their borders”.17
7. In 2008, in his preliminary report,18 the Special Rapporteur
considered that, on the question of the scope of
the topic ratione temporis, “a broad approach appears
indicated as concerns the phases which should be included,
in order to provide fully fledged legal space”.
He referred to “the wide range of specific issues to
which providing disaster assistance gives rise through
successive phases, not only of disaster response but also
of pre-disaster and post-disaster: prevention and mitigation
on the one hand, and rehabilitation on the other”.19
He concluded, “To achieve complete coverage, work on
the topic should extend to all three phases of a disaster
situation, but it would appear justified to give particular
attention to aspects relating to prevention and mitigation
of a disaster as well as to provision of assistance in its
immediate wake”.20
8. In 2009, in his second report,21 the Special Rapporteur
suggested concentrating, at the initial stage of work,
on response at the disaster proper and immediate postdisaster
phase, while emphasizing that this was “without
prejudice to the Commission addressing, at a later stage,
preparedness at the pre-disaster phase”.22
9. In 2012, in his fifth report,23 the Special Rapporteur,
summarizing the general comments made by the Sixth
Committee in its debate on the Commission’s 2011 annual
report, recorded that it had been suggested that the proposed
scope of the draft articles was too narrow with respect to the
events to be covered and, therefore, it should be extended
to a wider range of pre-disaster activities relating to risk reduction,
prevention preparedness and mitigation.24 Also in
that report, the Special Rapporteur touched upon the
15 Ibid., para. 10; see also A/59/565 and Corr.1.
16 Yearbook … 2006, vol. II (Part Two), annex III, p. 211, para. 27.
17 Ibid., p. 212, para. 34.
18 Yearbook … 2008, vol. II (Part One), document A/CN.4/598.
19 Ibid., p. 154, para. 57.
20 Ibid., p. 155, para. 66.
21 Yearbook … 2009, vol. II (Part One), document A/CN.4/615.
22 Ibid., para. 29.
23 Yearbook … 2012, vol. II (Part One), document A/CN.4/652.
24 Ibid., para. 15, citing a statement by Poland (Official Records of the
General Assembly, Sixty-sixth Session, Sixth Committee, 21st meeting
(A/C.6/66/SR.21), para. 84).
6 Documents of the sixty-fifth session
question of cooperation in disaster preparedness, prevention
and mitigation, noting that “more recent conventions have
shifted the focus from a primarily response-centric model
to one focused largely on prevention and preparedness”.25
25 Ibid., para. 114.
10. In his concluding remarks at the end of the Commission’s
2012 debate on his fifth report, the Special Rapporteur
expressed his intention to devote his next report
to prevention, mitigation and preparedness in respect of
disasters.26
26 Ibid., vol. I, 3142nd meeting.
Prevention
A. Historical development of the
concept of disaster risk reduction
11. The Office of the United Nations Disaster Relief
Coordinator (UNDRO) was founded in 1971. It was the
predecessor of the present Office for the Coordination of
Humanitarian Affairs (OCHA). As early as 1973, it initiated
a research project that culminated in an expert group
meeting, held from 9 to 12 July 1979, bringing together
scientists and planners specializing in the major natural
hazards of meteorological, geological and geophysical
origin. In its report studying in detail natural disaster and
vulnerability analysis,27 the expert group concluded, “it
is now also realized that the actual and potential consequences
of natural hazards are becoming so serious and so
increasingly global in scale, that much greater emphasis
will henceforth have to be given to pre-disaster planning
and prevention”.28
12. Nearly a decade later, in 1987, the General Assembly
focused on disaster reduction, citing increasing and
grave damages and loss of life. In its resolution 42/169
of 11 December 1987, it recognized “the responsibility
of the United Nations system for promoting international
cooperation in the study of natural disasters of geophysical
origin and in the development of techniques to mitigate
risks arising therefrom, as well as for coordinating
disaster relief, preparedness and prevention, including
prediction and early warning”, and decided to designate
the 1990s as the International Decade for Natural Disaster
Reduction. It also decided on five specific goals, including
“to disseminate existing and new information related
to measures for the assessment, prediction, prevention
and mitigation of natural disasters” and “develop measures
for the assessment, prediction, prevention and mitigation
of natural disasters through programmes of technical
assistance and technology transfer, demonstration
projects, and education and training, tailored to specific
hazards and locations, and to evaluate the effectiveness of
those programmes.”
13. In its resolution 44/236 of 22 December 1989, the
General Assembly adopted the International Framework
of Action for the International Decade for Natural Disaster
Reduction, devoting one section to actions to be taken
by the United Nations system. It declared, “The organs,
organizations and bodies of the United Nations system are
urged to accord priority, as appropriate and in a concerted
manner, to natural disaster preparedness, prevention, relief
and short-term recovery.” It also recognized “the important
responsibility of the United Nations system as a
27 UNDRO/EXPGRP/1.
28 Ibid., foreword.
whole for promoting international cooperation in order to
mitigate natural disasters, provide assistance and coordinate
disaster relief, preparedness and prevention”.
14. On 19 December 1991, a year into the International
Decade, the General Assembly adopted its landmark resolution
46/182, containing in its annex guiding principles
for humanitarian relief, preparedness, prevention and on
the continuum from relief to rehabilitation and development.
It recommended that “special attention should
be given to disaster prevention and preparedness by the
Governments concerned, as well as by the international
community” (para. 8). Sections II and III of the annex
focused on prevention and preparedness, proposing specific
measures to be taken by the international community
and States.
15. In the same year, the General Assembly noted
that approximately 100 States were already following
the 1989 call to establish national strategies to achieve
the objectives of the Decade, and endorsed a proposal to
convene a world conference on natural disaster reduction
to help to implement the International Framework of Action
(see General Assembly resolution 46/149 of 18 December
1991, para. 3). The General Assembly agreed that
the objectives of that conference were to review the accomplishments
of the Decade, to increase actions and exchange,
and to “increase awareness of the importance of
disaster reduction policies” (see General Assembly resolution
48/188, para. 6), recognizing the role that disaster
reduction could play for the improvement of emergency
management in general and capacity-building for disaster
preparedness and mitigation at the national level.
16. In 1994, the World Conference on Natural Disaster
Reduction took place in Yokohama, Japan. Building on
the midterm review of the Decade, it led to the adoption
of the Yokohama Strategy for a Safer World: Guidelines
for Natural Disaster Prevention, Preparedness and Mitigation
containing the Principles, the Strategy and Plan of
Action.29 In the Yokohama Message, the 148 participating
States affirmed that “disaster prevention, mitigation, preparedness
and relief are four elements which contribute
to and gain from the implementation of sustainable development
policies”, recommending that “nations should
incorporate them in their development plans and ensure
efficient follow-up measures at the community, national,
subregional, regional and international levels”30 and calling
for further improvements in early warning.31 They
29 Report of the World Conference on Natural Disaster Reduction,
A/CONF.172/9, chap. I, resolution 1, annex I.
30 Ibid., annex II, para. 2.
31 Ibid., annex I, para. 5.
Protection of persons in the event of disasters 7
affirmed that “disaster prevention, mitigation and preparedness
are better than disaster response in achieving the
goals and objectives of the Decade” and that “disaster response
alone is not sufficient”.32 For the rest of the Decade
and beyond, States were urged to “develop and strengthen
national capacities and capabilities and, where appropriate,
national legislation for natural and other disaster prevention,
mitigation and preparedness”.33
17. In 1999, the International Strategy for Disaster Reduction
was launched as a follow-up to the International
Decade for Natural Disaster Reduction and to develop the
Yokohama Strategy and its Plan of Action (see General
Assembly resolution 54/219 of 22 December 1999). According
to the secretariat mandated to oversee and guide
the Strategy, the Strategy “reflects a major shift from the
traditional emphasis on disaster response to disaster reduction,
and in effect seeks to promote a ‘culture of prevention’
”.34 This statement is a reflection of the contents
of the major General Assembly resolutions relating to the
Strategy, emphasizing the need for international cooperation
across the board with a focus on prevention (see
General Assembly resolutions 54/219 of 22 December
1999 and 56/195 of 21 December 2001, respectively).
18. In 2002, the Plan of Implementation of the World
Summit on Sustainable Development declared that “an
integrated, multi-hazard, inclusive approach to address
vulnerability, risk assessment and disaster management,
including prevention, mitigation, preparedness, response
and recovery, is an essential element of a safer world in
the twenty-first century”.35
19. A year later, in 2003, the twenty-eighth International
Conference of the Red Cross and Red Crescent adopted
the resolution “Adoption of the Declaration and Agenda
for Humanitarian Action”, which focused on four main
areas, one of which was reducing the risk and impact of
disasters and the improvement of preparedness and response
mechanisms. Final goal 3.1 of the Agenda was to
“acknowledge the importance of disaster risk reduction
and undertake measures to minimize the impact of disasters
on vulnerable populations”.
20. That same year, in its resolution 58/214 of 23 December
2003, the General Assembly took note of the
report of the Secretary-General on the Implementation
of the International Strategy for Disaster Reduction, in
which it was indicated that “the International Strategy
for Disaster Reduction should continue to become a more
visible, recognized and flexible instrument for reducing
the risk of and vulnerability to natural hazards and related
environmental and technological disasters”.36 To this end,
the Secretary-General envisaged the development of a
“framework for guidance and monitoring of disaster risk
32 Ibid., annex II, para. 3.
33 Ibid., para. 7 (c).
34 UNISDR, “What is the International Strategy?” , available from
www.unisdr.org/who-we-are/international-strategy-for-disaster
-reduction.
35 Report of the World Summit on Sustainable Development, Johannesburg,
South Africa, 26 August–4 September 2002 (United Nations
publication, Sales No. E.03.II.A.1 and corrigendum), chap. I, resolution
2, annex, para. 37.
36 A/58/277, para. 1.
reduction”.37 The goal of this new framework would be
“to increase the understanding and effectiveness of disaster
risk reduction practices through a participatory process
and building on existing praxis”.38 The Secretary-General
concluded that “disaster risk reduction is a potent noregrets
solution for adapting nationally to climate
change”, and encouraged disaster risk assessment to support
the new strategy.39
21. Moreover, the General Assembly recognized “the
urgent need to further develop and make use of the existing
scientific and technical knowledge to reduce vulnerability
to natural disasters”.40 It therefore decided to
“convene a World Conference on Disaster Reduction
in 2005 … designed to foster specialized discussion and
produce concrete changes and results”.41 By building on
the Yokohama Strategy and its Plan of Action and the
Johannesburg Plan of Implementation,42 the objectives
of the Conference were to “share the best practices and
lessons learned to further disaster reduction within the
context of attaining sustainable development and identify
gaps and challenges”; “increase awareness of the importance
of disaster reduction policies”; and “increase the
reliability and availability of appropriate disaster-related
information to the public and disaster management agencies
in all regions”.43 The General Assembly stressed “the
importance of identifying, assessing and managing risks
prior to the occurrence of disasters”.44
22. In 2005, the participants in the International Meeting
to Review the Implementation of the Programme of
Action for the Sustainable Development of Small Island
Developing States, held in Mauritius, adopted the Mauritius
Declaration,45 in which they emphasized the need
for increased preventive protection of small island developing
States46 and pointed to disaster risk reduction and
early warning systems47 and the building of resilience48 as
appropriate measures.
23. The World Conference for Disaster Reduction took
place in Kobe, Hyogo, Japan, from 18 to 22 January 2005.
It adopted the Hyogo Declaration49 and the Hyogo Framework
for Action 2005–2015: Building the Resilience of
Nations and Communities to Disasters.50 The Hyogo
Framework was intended as “the first plan to explain,
37 Ibid., para. 17.
38 Ibid., para. 20.
39 Ibid., paras. 59 and 60.
40 General Assembly resolution 58/214 of 23 December 2003,
preamble.
41 Ibid., para. 7.
42 Report of the World Summit on Sustainable Development... (see
footnote 35 above), chap. I, resolution 2, annex.
43 General Assembly resolution 58/214 of 23 December 2003,
para. 7 (c)–(e).
44 General Assembly resolution 59/231 of 22 December 2004,
para. 11.
45 A/CONF.207/11 (United Nations publication, Sales No. E.05.
II.A.4), chap. I, resolution 1, annex I.
46 Ibid., paras. 3, 4, 6 and 10.
47 Ibid., para. 6.
48 Ibid., para. 13.
49 A/CONF.206/6, available from www.unisdr.org/we/inform/publi
cations/1037, chap. I, resolution 1.
50 Ibid., resolution 2.
8 Documents of the sixty-fifth session
describe and detail the work that is required from all different
sectors and actors to reduce disaster losses”,51 and the
Conference provided “a unique opportunity to promote a
strategic and systematic approach to reducing vulnerabilities
and risks to hazards”.52 The Hyogo Declaration stated:
We recognize as well that a culture of disaster prevention and resilience,
and associated pre-disaster strategies, which are sound investments,
must be fostered at all levels, ranging from the individual to
the international levels. Human societies have to live with the risk of
hazards posed by nature. However, we are far from powerless to prepare
for and mitigate the impact of disasters. We can and must alleviate
the suffering from hazards by reducing the vulnerability of societies.
We can and must further build the resilience of nations and communities
to disasters through people-cent[red] early warning systems, risks
assessments, education and other proactive, integrated, multi-hazard,
and multi-sectoral approaches and activities in the context of the disaster
reduction cycle, which consists of prevention, preparedness, and
emergency response, as well as recovery and rehabilitation. Disaster
risks, hazards, and their impacts pose a threat, but appropriate response
to these can and should lead to actions to reduce risks and vulnerabilities
in the future.53
24. The Hyogo Framework for Action re-emphasized
the responsibility of each State to take effective measures
to reduce disaster risk, “including for the protection of
people on its territory”,54 and took up the call made in the
Johannesburg Plan of Implementation that “an integrated,
multi-hazard approach to disaster risk reduction should
be factored into policies, planning and programming related
to sustainable development, relief, rehabilitation,
and recovery activities in post-disaster and post-conflict
situations in disaster-prone countries”.55
25. The review of progress made in implementing the
Yokohama Strategy identified specific gaps and challenges
as key areas for developing a relevant framework
for action for the decade 2005–2015: (a) governance:
organizational, legal and policy frameworks; (b) risk
identification, assessment, monitoring and early warning;
(c) knowledge management and education; (d) reducing
underlying risk factors; and (e) preparedness for effective
response and recovery.56 In the light of the objectives
of the World Conference, the expected outcome for the
subsequent 10 years was formulated as “the substantial
reduction of disaster losses, in lives and in the social,
economic and environmental assets of communities and
countries”.57
26. In its resolution 60/195 of 22 December 2005, the
General Assembly recognized that “the Hyogo Framework
for Action complements the Yokohama Strategy …
and its Plan of Action” (preamble), and called for “a more
effective integration of disaster risk reduction into sustainable
development polices, planning and programming;
for the development and strengthening of institutions,
mechanisms and capacities to build resilience to hazards
and for a systematic incorporation of risk reduction approaches
into the implementation of emergency preparedness,
response and recovery programmes” (para. 3).
51 See www.unisdr.org/we/coordinate/hfa.
52 A/CONF.206/6, chap. I, resolution 2, para. 1.
53 Ibid., resolution 1, para. 3.
54 Ibid., resolution 1, para. 4; and ibid., resolution 2, para. 13 (b).
55 Ibid., resolution 2, para. 13 (c).
56 Ibid., resolution 2, para. 9.
57 Ibid., resolution 2, para. 11.
27. In its resolution 61/200 of 20 December 2006, paragraph
4, the General Assembly stressed:
The importance of the Hyogo Declaration and the Hyogo
Framework for Action and the priorities for action that States, regional
and international organizations and international financial institutions
as well as other concerned actors should take into consideration in their
approach to disaster risk reduction and implement, as appropriate, according
to their own circumstances and capacities, bearing in mind the
vital importance of promoting a culture of prevention in the area of natural
disasters, including through the mobilization of adequate resources
for disaster risk reduction, and of addressing disaster risk reduction,
including disaster preparedness at the community level, and the adverse
effects of natural disasters on efforts to implement national development
plans and poverty reduction strategies with a view to achieving
the internationally agreed development goals, including the Millennium
Development Goals.
28. The General Assembly adopted resolution 61/198 of
20 December 2006, in which it “notes the proposed establishment
of a Global Platform for Disaster Risk Reduction
as the successor mechanism of the Inter-Agency Task
Force for Disaster Reduction, and, taking into account the
implementation of the Hyogo Framework for Action, decides
that the Global Platform shall have the same mandate
as the Inter-Agency Task Force for Disaster Reduction”
(para. 15). Three sessions of the Global Platform
have been held since—in 2007, 2009 and 2011—with the
fourth scheduled for May 2013. Preparatory and followup
work on the sessions of the Global Platform is led by
the United Nations Office for Disaster Risk Reduction
(UNISDR), which was created in 1999 as the secretariat
of the International Strategy for Disaster Reduction (General
Assembly resolution 54/219 of 22 December 1999).
29. At the second session of the Global Platform,
in 2009, Heads of State and Government highlighted “in
stark, unequivocal terms that reducing disaster risk is critical
to managing the impacts of climate change”, while
risk-prone countries stressed that they were giving “high
priority to disaster risk reduction and wish to move ahead
quickly in the design and adoption of policies and strategies
to address their risks”.58
30. In the report on the midterm review of the Hyogo
Framework for Action, it was observed that “a growing
political momentum for disaster risk reduction has
been generated over the past five years”, as exemplified
by the thematic debate on disaster risk reduction convened
in 2011 by the President of the General Assembly,
at which Member States called for “more awarenessraising
activities, better use of shared experiences, advance
planning and prevention”.59 In the report, a growing
commitment at the national level to disaster risk reduction
and the achievement of the Hyogo Framework for Action
objectives was observed, and it was noted that preparedness
was the priority for action where Governments had
achieved the most “success”.60 It was stressed that, at the
58 Chair’s summary of the second session of the Global Platform
for Disaster Risk Reduction (Geneva, 3–16 May 2011), paras. 1 and 6,
available from www.preventionweb net/files/10750_GP09ChairsSum
mary.pdf.
59 Inter-Agency Secretariat of the International Strategy for Disaster
Reduction, Hyogo Framework for Action 2005–2015: Building
the Resilience of Nations and Communities to Disasters: Mid-term
Review 2010–2011 (2011), sect. 3.3, available from www.unisdr.org
/files/18197_midterm.pdf.
60 Ibid., sect. 3.1, Priority for Action 5.
Protection of persons in the event of disasters 9
regional level, the Hyogo Framework for Action “has
brought about a significant momentum for change”.61
31. In May 2011, the third session of the Global Platform
for Disaster Risk Reduction was held, grounded on
the findings of the second session, in 2009, the results of
the midterm review and the 2011 Global Assessment Report
on Disaster Risk Reduction of UNISDR.62 The Platform
identified that it was critical to create incentives for
investing in prevention, and noted that few countries incorporated
disaster prevention into reconstruction and recovery
planning.63 In addition, “the discussions at the third
session demonstrated that we now possess the knowledge,
the means and the commitment to make disaster risk reduction
a national, local and international priority”.64
32. In its resolution 66/199 of 22 December 2011, the
General Assembly took note with appreciation of the results
of the midterm review of the Hyogo Framework for
Action and recognized that the Global Platform had been
confirmed as “being the main forum at the global level
for strategic advice coordination and partnership development
for disaster risk reduction” (para. 4). It also requested
UNISDR to “facilitate the development of a post-2015
framework for disaster risk reduction” (para. 5).
33. The Hyogo Framework for Action and the International
Strategy for Disaster Reduction gave further impetus
for binding and non-binding regional initiatives65 focused
on disaster risk reduction:66 the ASEAN Agreement
on Disaster Management and Emergency Response;67
the Beijing Action for Disaster Risk Reduction in Asia
(2005); the Delhi Declaration on Disaster Risk Reduction
in Asia (2007); the Kuala Lumpur Declaration on Disaster
Risk Reduction in Asia (2008); the Fourth Asian Ministerial
Conference on Disaster Risk Reduction (2010),
leading to the Incheon Declaration on Disaster Risk Reduction
in Asia and the Pacific (2010), and the Incheon
Regional Roadmap and Action Plan on Disaster Risk Reduction
through Climate Change Adaptation in Asia and
the Pacific, reaffirming the Framework for Action and
proposing Asian initiatives for climate change adaptation
and disaster risk reduction considering vulnerabilities in
the region;68 the African Union Africa Regional Strategy
for Disaster Risk Reduction of 2004, which was followed
61 Ibid., sect. 3.2.
62 Global Assessment Report on Disaster Risk Reduction (Geneva,
2011, UNISDR).
63 Chair’s summary of the third session of the Global Platform
for Disaster Risk Reduction and World Reconstruction Conference
(Geneva, 8–13 May 2011), paras. 8.5 and 9.1, available from
www.preventionweb net/files/20102_gp2011chairssummary.pdf.
64 Ibid., para. 4.
65 The establishment of national platforms for disaster reduction,
already called for in 1991, was requested by the Economic and Social
Council in paragraph 9 of its resolution 1999/63, as well as in paragraph
10 of General Assembly resolution 56/195 of 21 December 2001
and paragraph 3 of General Assembly resolution 58/215 of 23 December
2003.
66 For an overview, see also General Assembly resolution 59/231 of
22 December 2004.
67 The Agreement is the first international treaty concerning disaster
risk reduction to have been developed after the adoption of the Hyogo
Framework for Action.
68 For the text of the Incheon Declaration, see www.unisdr.org/we
/inform/publications/16327.
by a programme of action for its implementation (originally
for the period 2005–2010, but later extended to
2015);69 four sessions of the Africa Regional Platform for
Disaster Risk Reduction, the most recent in 2013;70 the
Arab Strategy for Disaster Risk Reduction 2020, adopted
by the Council of Arab Ministers Responsible for the
Environment at its twenty-second session, in December
2010;71 and, lastly, the Nayarit Communiqué on Lines
of Action to Strengthen Disaster Risk Reduction in the
Americas (2011).72
34. Developments in the field of climate change have
reinforced disaster risk reduction, most prominently in
the Cancun Adaptation Framework, to enhance action on
adaptation, seeking to reduce vulnerabilities and build
resilience in developing countries, explicitly taking into
consideration the Hyogo Framework for Action (FCCC/
CP/2010/7/Add.1, para. 14 (e)). In addition, in the outcome
document of the United Nations Conference on
Sustainable Development, entitled “The future we want”,
adopted in 2012, Heads of State and Government and
high-level representatives reaffirmed their commitment to
the Hyogo Framework for Action.73 They called “for disaster
risk reduction and the building of resilience to disasters
to be addressed with a renewed sense of urgency …
and … to be integrated into policies, plans, programmes
and budgets at all levels and considered within relevant
future frameworks”.74
35. States have implemented the Hyogo Framework for
Action by incorporating disaster risk reduction into national
policy and legal frameworks. In a 2011 review of
international implementation of national policy and legal
frameworks for disaster risk reduction, based on a selfreporting
mechanism that is non-exclusive, numerous
States reported having integrated disaster risk reduction
into development plans.75
B. Prevention as a principle of international law
36. At this point, the Special Rapporteur deems it appropriate
to recall the centrality of his dual-axis approach
throughout the study of the present topic. Just as the disaster
phase proper, the pre-disaster phase implies rights and
obligations both horizontally (the rights and obligations
of States in relation to one another and the international
community) and vertically (the rights and obligations of
States in relation to persons within a State’s territory and
69 Extended Programme of Action for the Implementation of the
Africa Regional Strategy for Disaster Risk Reduction (2006–2015) and
Declaration of the Second African Ministerial Conference on Disaster
Risk Reduction 2010, introduction, available from www.unisdr.org/
files/19613_bookletpoaenglish.pdf.
70 “Africa seeks united position on disaster risk reduction”, 13 February
2013, available from www.unisdr.org/archive/31224.
71 For the text of the Strategy, see www.unisdr.org/files/18903_1793
4asdrrfinalenglishjanuary20111.pdf.
72 For the text of the Communiqué, see www.unisdr.org/files/18603
_communiquenayarit.pdf.
73 General Assembly resolution 66/288 of 27 July 2012, annex,
para. 186.
74 Ibid.
75 See the Compilation of national progress reports on the implementation
of the Hyogo Framework for Action (2009–2011), Hyogo
Framework for Action priority 1, core indicator 1.1. Available from
www.preventionweb net/english/hyogo/progress/documents/hfa
-report-priority1-1%282009-2011%29.pdf.
10 Documents of the sixty-fifth session
control). The obligation of States in relation to one another
and the international community in the pre-disaster
phase have been alluded to by the Special Rapporteur in
his fifth report with reference to the duty to cooperate in
disaster preparedness, prevention and mitigation.76 Also
relevant in the pre-disaster phase as regards rights and
obligations of States in relation to one another is the obligation
to prevent transboundary harm.77 Nevertheless, as
noted in the memorandum by the Secretariat, “prevention
is more closely associated with a primary obligation to
prevent harm to one’s own population, property and the
environment generally”.78
37. As can be seen from the historical account given in
the preceding section, prevention, mitigation and preparedness
have long been part of the discussion relating to
natural disaster reduction and more recently to that on disaster
risk reduction. Generally, they cover measures that
can be taken in the pre-disaster phase.79 As has been aptly
put in the memorandum by the Secretariat, “prevention,
mitigation and preparedness lie on different points of the
continuum of actions undertaken in advance of the onset
of a disaster”.80
38. Preparedness, which is an integral part of disaster
or emergency management, has been characterized as
“the organization and management of resources and responsibilities
for addressing all aspects of emergencies,
in particular preparedness, response and initial recovery
steps”.81 It was proposed as an appropriate measure to
confront earthquakes as early as 1983.82 After inclusion
as a specific focus of the International Decade for Natural
Disaster Reduction, UNDP organized a disaster management
training programme on disaster preparedness and
elaborated further upon the notion in 1994. Preparedness
came to be understood as crucial to international relief
assistance. Accordingly, the objective of preparedness
measures is closely related to the occurrence of a disaster.
83 As the Secretariat concluded, “preparedness refers
to those measures put into place in advance to ensure an
effective response, including the issuance of timely and
effective early warning and the temporary evacuation of
people and property”.84 In temporal terms, preparedness
straddles two areas of disaster risk reduction and disaster
management: the pre-disaster phase and the post-disaster
phase. The simple goal of disaster preparedness is to
respond effectively and recover more swiftly when disasters
strike. Preparedness efforts also aim at ensuring
76 Yearbook … 2012, vol. II (Part One), document A/CN.4/652,
paras. 114–115.
77 See the draft articles on prevention of transboundary harm from
hazardous activities, Yearbook … 2001, vol. II (Part Two), p. 148,
para. 98.
78 A/CN.4/590 and Add.1–3 (available from the Commission’s website,
documents of the sixtieth session; the final text will be published as
an addendum to Yearbook … 2008, vol. II (Part One)), para. 24.
79 General Assembly resolution 42/169 of 11 December 1987,
para. 4 (a).
80 A/CN.4/590 and Add.1–3 (footnote 78 above), para. 27.
81 UNISDR, 2009 UNISDR Terminology on Disaster Risk Reduction
(Geneva, 2009), p. 18.
82 Drakopoulos and Tassos, “Earthquakes and their social, economic
and legal implications”, p. 183.
83 General Assembly resolution 46/182 of 19 December 1991,
annex, para. 18.
84 See footnote 80 above.
that those having to respond know how to use the necessary
resources. The activities that are commonly associated
with disaster preparedness include developing
planning processes to ensure readiness; formulating
disaster plans; stockpiling resources necessary for effective
response; and developing skills and competencies
to ensure effective performance of disaster-related
tasks.85 The Federal Emergency Management Agency of
the United States has defined disaster preparedness as
“a continuous cycle of planning, organizing, training,
equipping, exercising, evaluating, and taking corrective
action in an effort to ensure effective coordination during
incident response”.86
39. “Mitigation” is frequently referred to in most instruments
relating to disaster risk reduction together with preparedness.
87 The General Assembly set as a goal of the
International Decade for Natural Disaster Reduction, “to
improve the capacity of each country to mitigate the effects
of natural disasters expeditiously and effectively”.88
In terms of specific measures, mitigation came to be
understood as aiming at structural or non-structural measures
to limit the adverse effects of disaster.89
40. Since, by definition, mitigation and preparedness
imply the taking of measures prior to the onset of a disaster,
they can be properly regarded as specific manifestations
of the overarching principle of prevention, which
lies at the heart of international law. The Charter of the
United Nations has so enshrined it in declaring that the first
purpose of the United Nations is “to maintain international
peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats
to the peace”.90 The Commission, in its 2001 draft articles
on the prevention of transboundary harm from hazardous
activities, considered the “well-established principle of
prevention” in relation to that international aspect of manmade
disasters.91 The Commission explicitly referred to
the Declaration of the United Nations Conference on the
Human Environment (Stockholm Declaration),92 the Rio
Declaration on Environment and Development93 and General
Assembly resolution 2995 (XXVII) of 15 December
1972,94 and concluded that
[the] prevention of transboundary harm to the environment, persons
and property has been accepted as an important principle in many
multilateral treaties concerning protection of the environment, nuclear
accidents, space objects, international watercourses, management of
hazardous wastes and prevention of marine pollution.95
85 Sutton and Tierney, “Disaster preparedness: concepts, guidance
and research”.
86 See https://training fema.gov/programs/emischool/el361toolkit/
preventionresources htm.
87 General Assembly resolution 46/182 of 19 December 1991,
annex, sect. III.
88 General Assembly resolution 44/236 of 22 December 1989,
annex, para. 2 (a).
89 See International Strategy for Disaster Reduction, Living with
Risk: A Global Review of Disaster Reduction Initiatives, 2004 version,
vol. I (United Nations publication, Sales No. GV.E.03.0.2), p. 17.
90 Article 1, paragraph 1.
91 Yearbook … 2001, vol. II (Part Two), p. 148, para. (4) of the general
commentary.
92 Ibid.
93 Ibid., para. (3) of the general commentary.
94 Ibid., para. (4) of the general commentary.
95 Ibid., p. 149, para. (5) of the general commentary.
Protection of persons in the event of disasters 11
41. The existence of an international legal obligation to
prevent harm, both in its horizontal and vertical dimensions
(see para. 36 above), finds support in human rights
law and environmental law.
1. H uman rights law
42. In his preliminary report, the Special Rapporteur emphasized
that “States are under a permanent and universal
obligation to provide protection to those on their territory
under the various international human rights instruments
and customary international human rights law”.96 He further
recalled that “each human right is deemed to entail
three levels of obligation on the State”:97 the duty to respect
(i.e. refraining itself from violating), protect (i.e.
protecting rights holders from violations by third parties)
and fulfil (i.e. taking affirmative actions to strengthen access
to the right).98 Protection, however, not only relates
to actual violations of human rights, but also entails an
obligation for States to prevent their occurrence.99
43. This positive obligation to prevent human rights
violations is explicitly enshrined in article 1 of the Convention
on the Prevention and Punishment of the Crime
of Genocide and article 2 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
44. Furthermore, the International Covenant on Civil
and Political Rights establishes a positive obligation for
States to respect and ensure human rights for all individuals
subject to its jurisdiction, without distinction of any
kind.100 Article 2, paragraphs 2 and 3 (a)–(b), of the Covenant
point to an obligation to prepare for and mitigate
the consequences of human rights violations. Article 2,
paragraph 2, has been described as entailing “preventive
measures to ensure the necessary conditions for unimpeded
enjoyment of the rights enshrined in the Covenant”.101
The prevention of human rights violations has been described
as “basically the identification and the eradication
of the underlying causes leading to violations of human
rights”.102 With reference to torture, it has been observed
that the violation of the right not to be tortured is the
“final link in a long chain which starts where respect for the
human dignity is taken lightly, its prevention means having
to identify the links of the chain which precede torture and
to break the chain before it reaches its final link”.103
45. More explicitly, the Inter-American Court of Human
Rights has formulated the legal obligation of States to
take reasonable steps to prevent human rights violations
in the following manner:
96 Yearbook … 2008, vol. II (Part One), document A/CN.4/598,
p. 149, para. 25.
97 Ibid., para. 26.
98 Fisher, Law and Legal Issues in International Disaster Response:
A Desk Study, p. 34.
99 Van Boven, “Prevention of human rights violations”, p. 191.
100 Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary,
p. 37, art. 2, para. 18.
101 Kriebaum, “Prevention of human rights violations”, p. 156.
102 Nowak and Suntinger, “International mechanisms for the prevention
of torture”, p. 146.
103 Ibid.
This duty to prevent includes all those means of a legal, political, administrative
and cultural nature that promote the protection of human
rights and ensure that any violations are considered and treated as illegal
acts, which, as such may lead to the punishment of those responsible
and the obligation to indemnify the victims for damages. It is not
possible to make a detailed list of all such measures, since they vary
with the law and the conditions of each State Party.104
46. Also in his preliminary report, the Special Rapporteur
gave as examples of the human rights relevant in the
event of disasters the rights to life, food, health and medical
services, to the supply of water, to adequate housing,
clothing and sanitation and the right not to be discriminated
against.105 The protection of those rights in the event
of disasters extends to the taking of measures aimed at
preventing and mitigating their effects. Each of those
rights must also be read in the light of a State’s duty “to
respect and to ensure”.106 The obligation to respect requires
States not to take any measures that would result in
individuals being prevented from exercising or experiencing
their rights. The obligation to ensure requires States
to take positive measures to ensure that State authorities
and third parties cannot violate a person’s rights. Thus, an
international obligation to prevent and mitigate disasters
arises from States’ universal obligation to ensure rights
such as the rights to life and food, clothing and shelter.
Such an international duty to prevent and mitigate disasters
based on human rights law was identified as early
as 1978.107
47. Article 6 of the International Covenant on Civil and
Political Rights prohibits the arbitrary deprivation of life,
which includes obligations on States to affirmatively protect
the right to life. The Human Rights Committee has
already indicated that article 6 requires States to prevent
certain life-threatening and foreseeable disasters. In its
general comment interpreting article 6, the Committee
stated that it would be desirable for States to take positive
measures to reduce mortality, including measures
to “eliminate malnutrition and epidemics”.108 Here, the
Committee clearly had such disasters in mind, including,
for example, extreme cases of malnutrition (e.g. famine)
as would fall within the definition of disaster adopted by
104 Velasquez Rodriguez v. Honduras, judgment of 29 July 1988,
Inter-American Court of Human Rights, Series C, No. 4, para. 175; see
also para. 174.
105 Yearbook … 2008, vol. II (Part One), document A/CN.4/598,
p. 149, para. 26.
106 See, for example, art. 2, para. 1 of the International Covenant on
Civil and Political Rights.
107 See Samuels, “The relevance of international law in the prevention
and mitigation of natural disasters”, pp. 245 and 248. (“As a minimum,
the recognized right to an adequate standard of living, including
adequate food, clothing, and housing, must involve a State’s legal obligation
to assist another in time of natural disaster, a State’s legal obligation
to prepare for disaster relief within its own territory and to take
preventive measures in order to minimize the suffering resulting from
natural disasters.”) See also Hand, “Disaster prevention presentation,
from SCJIL symposium 2003”, pp. 147 and 159‒161.
108 Report of the Human Rights Committee, Official Records of
the General Assembly, Thirty-seventh Session, Supplement No. 40
(A/37/40), annex V, General comment No. 6 (article 6) on the right to
life, p. 93, para. 5. (“Moreover, the Committee has noted that the right
to life has been too often narrowly interpreted. The expression ‘inherent
right to life’ cannot properly be understood in a restrictive manner, and
the protection of this right requires that States adopt positive measures.
In this connection, the Committee considers that it would be desirable
for States parties to take all possible measures to reduce infant mortality
and to increase life expectancy, especially in adopting measures to
eliminate malnutrition and epidemics.”)
12 Documents of the sixty-fifth session
the Commission in draft article 3.109 The rights secured by
the Covenant also go hand in hand with those enshrined
in the Universal Declaration of Human Rights. According
to article 3 of the Declaration, “Everyone has the right to
life, liberty and security of person”.110 As provided in article
25, paragraph (1),
Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right
to security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his
control.111
Disasters are certainly situations under which an individual
may face “circumstances beyond his control”.112
48. In addition, article 11, paragraph 1, of the International
Covenant on Economic, Social and Cultural Rights
recognizes the “right of everyone to an adequate standard
of living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement
of living conditions”. In the event of a disaster,
a State has the obligation to guarantee the standard
of living of everyone by mitigating its effects.113 Such a
legal obligation in respect of disaster relief was already
affirmed in 1977, also in consideration of “the economic,
social, and political interest of all nations in the speedy
mitigation of the human effects of a disaster anywhere”.114
Of course, the Covenant regime is subject to progressive
realization,115 meaning that a State’s obligation to
fulfil article 11 depends in part on its level of economic
development.116
49. The Convention on the Rights of the Child also
recognizes “the right of every child to a standard of living
adequate for the child’s physical, mental, spiritual,
moral and social development”.117 The States parties to
the Convention have the duty to “take appropriate measures”
to assist parents in fulfilling their primary responsibility
to implement that right, “particularly with regard to
nutrition”.118
50. The existence of an obligation to mitigate has
been recently addressed in relation to climate change, in
109 For a discussion of famine and malnutrition as a disaster, see
Garcia, “Famine as a catastrophe: the role of international law”, p. 229.
110 General Assembly resolution 217 (III) of 10 December 1948.
111 Ibid.
112 Kent, “The human right to disaster mitigation and relief”, p. 137.
113 In support of the view that this human right presupposes an obligation
to mitigate, see Nicoletti, “The prevention of natural and manmade
disasters: what duties for States”, p. 194. See also Hand, “Disaster
prevention presentation”, pp. 147 and 159.
114 Green, International Disaster Relief: Towards a Responsive System,
p. 66.
115 See art. 2.
116 Progressive realization itself is not foreign to the concept of prevention
in international law. In the commentary to the Commission’s
draft articles on prevention of transboundary harm, it was noted that
“the economic level of States is one of the factors to be taken into
account in determining whether a State has complied with its obligation
of due diligence” and that “a State’s economic level cannot be used to
dispense the State from its obligation under the present articles”. See
Yearbook … 2001, vol. II (Part Two), p. 155, para. (13) of the commentary
to article 3.
117 Art. 27, para. 1.
118 Art. 27, para. 3.
particular when establishing a core set of minimum thresholds
or basic human rights standards, which have to be
taken into account when dealing with climate change.119
In addition, as regards preparedness, it has been suggested
that public health law “recommends laws that encourage
or require natural disaster preparedness”.120
51. International jurisprudence has recently adopted
the approach outlined in the present section, with the
European Court of Human Rights expressly recognizing
that the right to life requires States to take all appropriate
measures to prevent both natural and man-made
disasters.121 In two groundbreaking cases, the Court held
that failing to take feasible measures that would have
prevented or mitigated the consequences of foreseeable
disasters amounted to a violation of the right to life and
therefore incurred the responsibility of the State under
international law.122 In Öneryildiz, a methane explosion
in a public refuse dump, situated on a slope overlooking
a valley in Istanbul, engulfed 10 slum dwellings in
the immediate vicinity of the dump and killed 39 people.
Experts had warned the Turkish authorities of the risk of
such an explosion two years earlier, but no steps were
taken. In Budayeva, a mudslide swept through a mountainous
town in the Russian Federation, killing several
people and destroying many buildings. While the town
had been protected by retention dams, they were badly
damaged by particularly heavy mudslides in 1999 and
never repaired, warnings by the State meteorological institute
notwithstanding. Two weeks before the mudslide,
the agency informed the local Ministry for Disaster Relief
about the imminent danger of a new disaster and requested
that observation points should be set up in the
upper sections of the river and that an emergency warning
should be issued if necessary. None of the proposed
measures were taken.
52. Interpreting article 2 of the European Convention on
Human Rights, which ensures the right to life in almost
identical terms as article 6 of the International Covenant
on Civil and Political Rights, the Court affirmed in
its judgment in Öneryildiz that the right to life “does not
solely concern deaths resulting from the use of force by
agents of the State but also… lays down a positive obligation
on States to take appropriate steps to safeguard the
lives of those within their jurisdiction” and stressed that
“this positive obligation entails above all a primary duty
on the State to put in place a legislative and administrative
framework designed to provide effective deterrence
against threats to the right to life”.123 In its 2008 judgment
in Budayeva, the Court concluded:
119 McInerney-Lankford, Darrow and Rajamani, Human Rights and
Climate Change: A Review of the International Legal Dimensions,
p. 30.
120 Feinberg, “Hurricane Katrina and the public health-based argument
for greater federal involvement in disaster preparedness and
response”, p. 598.
121 See Kälin and Dale, “Disaster risk mitigation—why human
rights matter”, p. 38.
122 See ECHR, Öneryildiz v. Turkey [GC], application No. 48939/99,
judgment of 30 November 2004, Reports of Judgments and Decisions
2004-XII, and Budayeva and Others v. Russia, application
Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, judgment
of 20 March 2008 (extracts).
123 Öneryildiz, para. 71, and Budayeva, para. 129 (see previous
footnote).
Protection of persons in the event of disasters 13
In the sphere of emergency relief, where the State is directly involved
in the protection of human lives through the mitigation of natural hazards,
these considerations should apply in so far as the circumstances
of a particular case point to the imminence of a natural hazard that had
been clearly identifiable, and especially where it concerned a recurring
calamity affecting a distinct area developed for human habitation or
use… The scope of the positive obligations imputable to the State in the
particular circumstances would depend on the origin of the threat and
the extent to which one or the other risk is susceptible to mitigation.124
53. A State therefore incurs liability when it neglects its
duty to take preventive measures when a natural hazard
is clearly identifiable and effective means to mitigate the
risk are available to it.125 These two decisions concerning
a duty to prevent and mitigate disasters are relevant for a
number of reasons. First, the Court articulated the same
duty regarding natural and man-made disasters. Second,
the Court faulted Turkey and the Russian Federation for
failing to “take appropriate steps” to prevent the harm,
which mirrors the obligation in various international instruments
for States to take “appropriate” or “necessary”
measures to reduce the risk of disaster. Third, the cases
suggest that a State’s duty is triggered when a disaster
becomes foreseeable, which mirrors the foreseeability requirement
within the principle of due diligence.126
2. E nvironmental law
54. States have an obligation not to cause environmental
harm in genere and to ensure that activities within their jurisdiction
do not harm the environment or areas under the
jurisdiction of another State. The duty to prevent in international
environmental law encompasses both obligations.127
Prevention in the environmental context is based on the
common law principle of sic utere tuo ut alienum non laedas.
As declared by ICJ in the Corfu Channel case, this
principle is well established in international law128 and was
applied as early as 1941 in the Trail Smelter arbitration.129
The first clear pronouncement of the principle of prevention
in international environmental law can be found in
principle 21 of the Declaration of the United Nations Conference
on the Human Environment, which reads:
States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental policies, and
the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.130
55. Principle 2 of the Rio Declaration on Environment
and Development adopted principle 21 wholesale,
with the added recognition that States have a sovereign
right to exploit their own resources according to their
124 Budayeva (footnote 122 above), para. 137.
125 Kälin and Dale, “Disaster risk mitigation—why human rights
matter”, p. 39.
126 See para. 61 below.
127 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment,
I.C.J. Reports 2010, p. 14, separate opinion by Judge Cançado
Trindade, at p. 159, para. 59.
128 Corfu Channel (United Kingdom of Great Britain and Northern
Ireland v. Albania), Judgment of 9 April 1949, I.C.J. Reports 1949, p. 4,
at p. 22.
129 Trail Smelter case (United States of America v. Canada),
UNRIAA, vol. III (Sales No. 1949.V.2), p. 1905.
130 Report of the United Nations Conference on the Human Environment,
Stockholm, 5–16 June 1972, A/CONF.48/14/Rev.1 (United Nations
publication, Sales No. E.73.II.A.14), p. 5, principle 21.
developmental policies.131 Principle 11 of the Rio Declaration
builds on this obligation by adding that States must
adopt legislative and administrative policies intended to
prevent or mitigate transboundary harm.132
56. The principle was affirmed in the 1996 advisory
opinion of ICJ on the Legality of the Threat or Use of
Nuclear Weapons in the following terms: “The existence
of the general obligation of States to ensure that activities
within their jurisdiction and control respect the environment
of other States or of areas beyond national control
is now a part of the corpus of international law relating to
the environment”.133
57. Over time, the key enunciations of the principle of
prevention have been used to hold States responsible for
failing to take steps necessary to stop transboundary harm.
For example, in the Gabčíkovo-Nagymaros Project case,
ICJ called upon both parties to “look afresh at the effects
on the environment of the operation of the Gabčíkovo
power plant” on the Danube River.134 In the light of “new
norms and standards”, the Court found that, at least in
the field of environmental protection, “vigilance and prevention
are required” on account of the often irreversible
character of damage to the environment and of the limitations
inherent in the very mechanism of reparation to
this type of damage.135 Similarly, in the Pulp Mills on the
River Uruguay case, the Court found that the principle of
prevention was part of customary international law and
that a State was thus obliged to use all the means at its
disposal in order to avoid activities that took place in its
territory or in any area under its jurisdiction causing significant
damage to the environment of another State.136
58. The World Charter for Nature was adopted by the
General Assembly in its resolution 37/7 of 28 October 1982,
embodying prevention as its underpinning principle. The
Assembly recalled its conviction that “the benefits which
could be obtained from nature depended on the maintenance
of natural processes and on the diversity of life forms
and that those benefits were jeopardized by the excessive
exploitation and the destruction of natural habitats”.
59. As already mentioned, in 2001, the Commission
identified a “well-established principle of prevention” in
the context of transboundary environmental harm.137 Article
3 of the draft articles on prevention of transboundary
harm from hazardous activities requires States to “take all
appropriate measures to prevent significant transboundary
131 Report of the United Nations Conference on Environment and Development,
Rio de Janeiro, 3–14 June 1992, vol. I, Resolutions Adopted
by the Conference (United Nations publication, Sales No. E.93.I.8a),
resolution 1, annex I, principle 2.
132 Ibid., principle 11.
133 Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, p. 226, at p. 241, para. 29.
134 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
I.C.J. Reports 1997, p. 7, at p. 78, para. 140.
135 Ibid.
136 Pulp Mills on the River Uruguay (footnote 127 above), para. 101
(citing p. 22 of the judgment in the Corfu Channel case (footnote 128
above) and the advisory opinion of ICJ on the Legality of the Threat or
Use of Nuclear Weapons (footnote 133 above)).
137 Draft articles on prevention of transboundary harm from hazardous
activities, Yearbook … 2001, vol. II (Part Two), p. 148, paragraph
(4) of the general commentary.
14 Documents of the sixty-fifth session
harm or at any event to minimize the risk thereof ”.138 In
establishing such a duty, the Commission drew upon the
principle of sic utere tuo ut alienum non laedas, while
adding more specificity to the “limitations on the freedom
of States reflected in principle 21” of the Declaration of
the United Nations Conference on the Human Environment.
Article 3 imposes an obligation on States to “adopt
and implement national legislation incorporating accepted
international standards”139 and to enforce legislation
and administrative regulations to ensure compliance.140
The principle of prevention also animates article 7 on the
assessment of risk, article 8 on the duty to notify, article 9
on the duty to consult with affected States on preventive
measures and article 16 on emergency preparedness. The
commentary to article 16 even recognizes a “duty to prevent
environmental disasters”.141
60. Both ICJ and the Commission agree that the principle
of prevention stems from two distinct but interrelated
State obligations: due diligence and the precautionary
principle.142
(a) Due diligence
61. The principle of due diligence is an established
principle of international law and has been referred to
as one of its “basic principles”.143 It has been associated
with the principle of responsibility, referring to underlying
rules within a “regime of responsibility for breach of
due diligence obligations”.144 In relation to acts or omissions
of non-State actors, it has been stated as early as
the beginning of the twentieth century that “the State may
incur responsibility if it fails to exercise due diligence in
preventing or reacting to such acts or omissions”.145 Due
diligence, as it relates to prevention in the environmental
context, has been defined as using, among others, the
“best practicable means”146 or “all appropriate and effective
measures”.147 As described by ICJ in the Pulp Mills on
the River Uruguay case, the obligation to “prevent
138 Ibid. Prevention is also the preferred method of asserting State
responsibility and liability for transboundary harm. In his first report
on prevention of transboundary damage from hazardous activities, the
Special Rapporteur, Pemmaraju Sreenivasa Rao, states that “prevention
as a policy in any way is better than cure” and that “it is a timehonoured
policy and one that is widely used by many developed and
industrialized societies to manage and even reduce or eliminate the ill
effects of their economic growth” (Yearbook … 1998, vol. II (Part One),
document A/CN.4/487 and Add.1, p. 186, para. 32).
139 Yearbook … 2001, vol. II (Part Two), p. 153, paras. (2) and (4) of
the commentary to article 3.
140 Ibid., p. 154, para. (6).
141 Ibid., p. 168, para. (1) of the commentary to article 16.
142 Ibid., pp. 154–155, paras. (7)–(18) of the commentary to article 3.
143 Condorelli, “The imputability to States of acts of international
terrorism”, pp. 240–242. See also Pisillo-Mazzeschi, “The due diligence
rule and the nature of the international responsibility of States”,
pp. 9–51.
144 Pisillo-Mazzeschi, “Forms of international responsibility for
environmental harm”, pp. 15–16.
145 Hessbruegge, “The historical development of the doctrines of
attribution and due diligence in international law”, p. 268, referring
to Amos Shartle Hershey, The Essentials of International Public Law,
New York, Macmillan Company, 1918, p. 162. See also Barnidge, “The
due diligence principle under international law”, pp. 81–121.
146 United Nations Convention on the Law of the Sea, art. 194,
para. 1.
147 Convention on environmental impact assessment in a transboundary
context, art. 2, para. 1.
pollution” in the treaty between Uruguay and Argentina
was “an obligation to act with due diligence in respect of
all activities which take place under the jurisdiction and
control of each party”.148
62. The obligation of due diligence is the standard basis
for prevention.149 The obligation is one of conduct rather
than result; the duty of due diligence cannot guarantee
the total prevention of significant harm, but a State must
exert its best possible efforts to minimize the risk.150 In this
sense, the duty of due diligence is the core obligation of
the prevention principle,151 and the formula obliging States
to take all “necessary or appropriate measures” (e.g. art. 3
of the draft articles on transboundary harm) is often used
to express this due diligence obligation.152 Due diligence
is manifested by a State’s efforts to implement and enforce
legislation and administrative regulations on prevention.153
Due diligence has been accepted by States as “in accordance
with current realities of State practice and international
law”.154 To arrive at this finding, the Commission relied on
a number of international environmental conventions that
contain obligations to take appropriate measures or, more
specifically, to implement treaty obligations through legislation
and administrative regulations.155 Thus, although the
term “due diligence” is not used by international environmental
conventions, it is accepted that numerous treaties
on the law of the sea, maritime pollution, protection of the
ozone layer, environmental impact assessments and the use
of transboundary watercourses and international lakes contain
such an obligation.156
148 Pulp Mills on the River Uruguay (footnote 127 above), p. 79,
para. 197.
149 Prevention of transboundary harm from hazardous activities,
Yearbook … 2001, vol. II (Part Two), p. 154, paragraph (8) of the commentary
to article 3.
150 Ibid., paragraph (7).
151 In his second report on international liability for injurious consequences
arising out of acts not prohibited by international law (prevention
of transboundary damage from hazardous activities), the Special
Rapporteur, Pemmaraju Sreenivasa Rao, notes that “the duty of prevention,
which is an obligation of conduct, is essentially regarded as a duty
of due diligence” and that “any question concerning implementation
or enforcement of the duty of prevention would necessarily have to
deal with the content of the obligation and hence the degree of diligence
which should be observed by States” (Yearbook … 1999, vol. II
(Part One), document A/CN.4/501, p. 116, para. 18).
152 Convention on the prevention of marine pollution by dumping of
wastes and other matter, art. 1; United Nations Convention on the Law
of the Sea, art. 194; and Convention on the Transboundary Effects of
Industrial Accidents, art. 3. See also Romano, “L’obligation de prévention
des catastrophes industrielles et naturelles”, p. 389. See in particular
Nicoletti, “The prevention of natural and man-made disasters:
what duties for States”.
153 Draft articles on prevention of transboundary harm from hazardous
activities, Yearbook … 2001, vol. II (Part Two), p. 154, paragraph
(10) of the commentary to article 3.
154 Yearbook … 2000, vol. II (Part One), document A/CN.4/510,
p. 117, para. 10.
155 Yearbook … 2001, vol. II (Part Two), p. 154, paragraph (8) of the
commentary to article 3, footnote 880 (citing the United Nations Convention
on the Law of the Sea, art. 194, para. 1; the Convention on the
prevention of marine pollution by dumping of wastes and other matter,
arts. I, II and VII, para. 2; the Vienna Convention for the Protection of
the Ozone Layer, art. 2; the Convention on the Regulation of Antarctic
Mineral Resource Activities, art. 7, para. 5; the Convention on environmental
impact assessment in a transboundary context, art. 2, para. 1;
and the Convention on the Protection and Use of Transboundary Watercourses
and International Lakes, art. 2, para. 1).
156 Yearbook … 2001, vol. II (Part Two), p. 154, paragraph (8) of the
commentary to article 3.
Protection of persons in the event of disasters 15
and resources”.165 In Budayeva, the Court noted that “this
consideration must be afforded even greater weight in the
sphere of emergency relief in relation to a meteorological
event, which is as such beyond human control, than in the
sphere of dangerous activities of a man-made nature”.166
Allowing for various actions to be taken on the basis of
the specific capacities and priorities of the State does not,
however, absolve States of their obligation to avert risk
and to “do everything within their power to protect [people]
from the immediate and known risks to which they
were exposed”.167
(b) Precautionary principle
66. Under international environmental law, the “precautionary
principle” relates to the more general prevention
of environmental harm (including within national boundaries)
and essentially creates a rebuttable presumption
that an action or policy has a suspected risk of causing
harm to the public or to the environment absent evidence
that it does not pose a risk.168 The Rio Declaration first
formulated it as follows:
In order to protect the environment, the precautionary approach shall be
widely applied by States, according to their capabilities. Where there
are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures
to prevent environmental degradation.169
The precautionary principle entails two main elements:
the awareness of the existence or persistence of risks and
the awareness of scientific uncertainties surrounding the
issue at stake.170
67. The commentary to article 3 of the draft articles
on prevention of transboundary harm recognizes that the
duty to prevent involves taking such measures as are appropriate
by way of abundant caution, even if full scientific
certainty does not exist, to avoid or prevent serious or
irreversible damage.171 The commentary to draft articles 7
and 10 expressly finds that the precautionary principle has
become a general principle of environmental law.172
68. The principle has been implicitly included in a
number of international conventions, such as the Bamako
Convention on the Ban of the Import into Africa and
the Control of Transboundary Movement and Management
of Hazardous Wastes within Africa (art. 4, para. 3),
the United Nations Framework Convention on Climate
Change (art. 3, para. 3), the Treaty establishing the European
Community as amended by the Treaty of Amsterdam
(art. 174 (former art. 130 (r)) and the Vienna Convention
for the Protection of the Ozone Layer (art. 2).173
165 Öneryildiz (footnote 122 above), para. 107.
166 Budayeva (footnote 122 above), para. 135.
167 Öneryildiz (footnote 122 above), para. 109.
168 See, for example, principle 15 of the Rio Declaration (footnote
131 above).
169 Ibid.
170 See Pulp Mills on the River Uruguay (footnote 127 above), separate
opinion by Judge Cançado Trindade, at p. 159, para. 62. See also
Trouwborst, Precautionary Rights and Duties of States.
171 Yearbook … 2001, vol. II (Part Two), p. 155, paragraph (14) of
the commentary to article 3.
172 Ibid., pp. 162–163, paragraphs (6)–(7) of the commentary to
article 10.
173 Ibid., paragraph (7).
63. The obligation of due diligence has two main characteristics:
the degree of care in question is that expected
of a “good Government” and the required degree of care
is also proportional to the degree of hazardousness of the
activity involved.157 Regarding the “good Government”
standard, for the Commission:
The main elements of the obligation of due diligence involved in the
duty of prevention could be thus stated: the degree of care in question
is that expected of a good Government. It should possess a legal system
and sufficient resources to maintain an adequate administrative apparatus
to control and monitor the activities. It is, however, understood that
the degree of care expected of a State with a well-developed economy
and human and material resources and with highly evolved systems and
structures of governance is different from States which are not so well
placed.158
64. According to the Commission, under the “good
Government” criterion, the economic level of States is
one of the factors to be taken into account in determining
whether a State has complied with its obligations of
due diligence.159 It is understood, however, that a State’s
economic level cannot discharge it from its obligation in
this regard and, in fact, “vigilance, employment of infrastructure
and monitoring of hazardous activities in the
territory of the State, which is a natural attribute of any
Government, are expected”.160 As far as the proportionality
standard is concerned, the degree of care required of a
State is proportional to the degree of harm that the hazard
involves. The harm itself should be foreseeable and the
State must have known or should have known that the
degree of risk was significant.161
65. The European Court of Human Rights has also
framed the duty of prevention as one of due diligence.
In Öneryildiz, the Court held that Turkish authorities
had a positive obligation to prevent when they “knew or
ought to have known that there was a real and immediate
risk to a number of persons”162 and, in Budayeva, that
a failure “to take measures that were necessary and sufficient
to avert the risks inherent in dangerous activity”163
amounted to a violation of the right to life under article 2
of the European Convention on Human Rights. Similarly,
in Budayeva, the Court found that, in the face of
increasing risks of mudslides, “the authorities could reasonably
be expected to acknowledge the increased risk
of accidents in the event of a mudslide that year and to
show all possible diligence in informing the civilians
and making advance arrangements for the emergency
evacuation”.164 Nevertheless, in Öneryildiz, the Court
recognized that “an impossible or disproportional burden
must not be imposed on the authorities without consideration
being given, in particular, to the operational
choices which they must make in terms of priorities
157 Yearbook … 2000, vol. II (Part One), document A/CN.4/510,
p. 119, para. 20.
158 Yearbook … 2001, vol. II (Part Two), p. 155, paragraph (17) of
the commentary to article 3.
159 Ibid. See also Yearbook … 2000, vol. II (Part One), document A/
CN.4/510, p. 120, para. 23.
160 Yearbook … 2001, vol. II (Part Two), p. 155, paragraph (17) of
the commentary to article 3.
161 Ibid., paragraph (18).
162 Öneryildiz (footnote 122 above), para. 101.
163 Budayeva (footnote 122 above), para. 140.
164 Ibid., para. 152.
16 Documents of the sixty-fifth session
69. Since the 1990s, it has been argued that the precautionary
principle has become a principle of “customary
international environmental law” or even general international
customary law.174 In his dissenting opinion in
the ICJ judgment in the Pulp Mills on the River Uruguay
case, Judge ad hoc Vinuesa concluded that the precautionary
principle “indisputably is at the core of environmental
law”, saying “in my opinion, the precautionary principle
is not an abstraction or an academic component of desirable
soft law, but a rule of law within general international
law as it stands today”.175 The Court has not, however, yet
acknowledged the principle as such.176
C. International cooperation on prevention
70. The Commission has reaffirmed the duty to cooperate
in article 5 of its draft articles on the present topic and,
in article 5 bis, adopted in 2012, has given a non-exhaustive
enumeration of the forms that cooperation may take
in the context of relief. Cooperation is also at the centre
of the horizontal (international) dimension of prevention.
In his fifth report, the Special Rapporteur briefly touched
upon cooperation as it relates to disaster preparedness prevention
and mitigation. As noted therein, cooperation relates
to nearly all aspects of disaster prevention, including
cooperation on search and rescue arrangements, standby
capacity requirements, early warning systems, exchange
of information pertaining to risk assessment and identification,
contingency planning and capacity-building.177
71. The duty to cooperate is a well-established principle
of international law. As the Special Rapporteur noted in his
second report,178 it is enshrined in numerous international
instruments, including the Charter of the United Nations.
As formulated in the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the
United Nations, the purpose of cooperation is, in part, “to
promote international economic stability and progress”
and “the general welfare of nations”.179
72. The duty to cooperate is also well established in
connection with prevention. It has been reiterated by
the General Assembly in numerous resolutions that address
disaster prevention and disaster risk reduction. In
establishing the International Decade for Natural Disaster
Reduction, the Assembly recognized the responsibility of
the United Nations to cooperate to mitigate risk, including
through prevention and early warning, while calling upon
174 See in more detail Harding and Fisher, eds., Perspectives on the
Precautionary Principle, p. 5; Trouwborst, “The precautionary principle
in general international law: combating the Babylonian confusion”,
p. 189; Romano, “L’obligation de prévention des catastrophes
industrielles et naturelles”, p. 396.
175 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional
Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 113,
dissenting opinion of Judge ad hoc Vinuesa, at p. 152.
176 Sunstein, Laws of Fear: Beyond the Precautionary Principle;
Cameron, “Environmental risk management in New Zealand—is there
scope to apply a more generic framework?”
177 Yearbook … 2012, vol. II (Part One), document A/CN.4/652,
paras. 114–115.
178 Yearbook … 2009, vol. II (Part One), document A/CN.4/615.
179 General Assembly resolution 2625 (XXV) of 24 October 1970,
annex, para. 1.
States to cooperate to reduce natural hazards.180 In more
recent resolutions, the Assembly has urged the international
community “to reduce the adverse effects of natural
disasters” through cooperation.181 International cooperation
is to be undertaken in order to support national efforts
for prevention,182 especially “to increase the capacity
of countries to respond to the negative impacts of all natural
hazards … particularly in developing countries”.183
The Hyogo Framework for Action was adopted in large
part to encourage cooperation in prevention, both among
States and between States and non-State actors.184 As has
been explained, the Hyogo Framework for Action “is the
guiding document in strengthening and building international
cooperation to ensure that disaster risk reduction be
used as a foundation for sound national and international
development agendas”.185 This is confirmed by the language
of the Framework, which stresses the importance
of cooperation with regard to disaster prevention: “We
are determined to reduce disaster losses of lives and other
social, economic and environmental assets worldwide,
mindful of the importance of international cooperation,
solidarity and partnership, as well as good governance at
all levels.”186
73. Non-binding declarations have referred to cooperation
when underscoring the duty to prevent. For example,
the Yogyakarta Declaration on Disaster Risk Reduction
in Asia and the Pacific 2012 called upon stakeholders
to “enhance and support regional cooperation mechanisms
and cent[res] on disaster information management”
relating to local risk assessment and financing.187 Likewise,
the Declaration of Panama placed cooperation as
central to the “prevention and mitigation of risks and
natural disasters”. Heads of State and/or Government
pledged “to foster international co-operation and capacitybuilding
in the area of natural disasters, in enhancing
the provision of humanitarian assistance at all stages of
a disaster and in promoting a culture of prevention and
early warning systems”.188
74. Cooperation is embedded in the regional organs and
platforms concerned with prevention, including the Regional
Platform for Disaster Risk Reduction in the Americas,
the Arab Strategy for Disaster Risk Reduction 2020,
the Asian Ministerial Conference on Disaster Risk Reduction,
the European Forum for Disaster Risk Reduction, the
Pacific Platform for Disaster Risk Management and the
Africa Regional Strategy for Disaster Risk Reduction. For
180 General Assembly resolution 42/169 of 11 December 1987,
paras. 7–8.
181 General Assembly resolution 58/215 of 23 December 2003,
para. 2.
182 See, for example, General Assembly resolution 60/196 of 22 December
2005, para. 2.
183 General Assembly resolution 59/233 of 22 December 2004. See
also resolution 60/196 of 22 December 2005.
184 A/CONF.206/6, chap. I, resolution 2.
185 See www.unisdr.org/we/coordinate.
186 A/CONF.206/6, resolution 1, fifth preambular paragraph.
187 Adopted by the Fifth Asian Ministerial Conference on Disaster
Risk Reduction, held in Yogyakarta, Indonesia, in 2012.
188 Declaration of Panama, adopted at the Fourth Summit of Heads
of State and/or Government of the Association of Caribbean States,
held in Panama City in July 2005, available from www.acs-aec.org/sites
/default/files/Declaracion_de_Panama_en_0.pdf.
Protection of persons in the event of disasters 17
example, the European Forum has noted that it “will serve
as a venue for … information sharing, exchange of knowledge
and ideas and facilitation of cooperation”.189 To this
end, the European Forum has “identified specific opportunities
for cross-fertilization between countries and subregions
for exchanging knowledge and information, as
well as inter-government and inter-sector cooperation”.190
In addition, the Extended Programme of Action for the
Implementation of the Africa Regional Strategy for Disaster
Risk Reduction (2006–2015) identified cooperation
as a major area of activity relating to risk assessment. It
stressed cooperation “regionally and internationally to assess
and monitor regional and transboundary hazards”.191
Regional cooperation is said to be important as it allows
for the efficient use of resources and reduces duplicative
efforts.192
75. As a legal duty, international cooperation for disaster
prevention finds its source in bilateral and multilateral
treaties concluded between States or between States and
international organizations. As an example of the latter, a
2000 framework agreement between the Caribbean Community
and Japan specifically addressed cooperation for
disaster prevention. The framework resolved “to promote
cooperation for … preventive action and rehabilitation”,
as well as stressing that “international cooperation should
be promoted to strengthen the institutional capacity of the
regional and national agencies concerned with disaster
prevention emergency response and management”.193
1. Bilateral instruments
76. Many States have concluded bilateral agreements
specially addressing cooperation in disaster prevention.
194 Examples are the agreements between Argentina
and Spain,195 Guatemala and Mexico,196 Germany
and Hungary,197 France and Italy,198 the Republic of
189 See www.preventionweb.net/files/19800_efdrrwebfinal.pdf,
p. 16.
190 Ibid.
191 Extended Programme of Action for the Implementation of the
Africa Regional Strategy for Disaster Risk Reduction (2006–2015)
and declaration of the second African Ministerial Conference on Disaster
Risk Reduction 2010, p. 47, available from www.unisdr.org/
files/19613_bookletpoaenglish.pdf.
192 “Implementing the Hyogo Framework for Action in Europe:
Advances and Challenges, Report for the period 2009–2011”,
pp. 39–41, available from www.unisdr.org/.
193 A New Framework for CARICOM–Japan Cooperation for the
Twenty-first Century, sect. 1-1, available from www mofa.go.jp/region
/latin/latin_e/caricom0011 html.
194 A/CN.4/590 and Add.1–3 (footnote 78 above), para. 43.
195 Spain and Argentina: Agreement on cooperation on disaster preparedness
and prevention, and mutual assistance in the event of disasters
(Madrid, 3 June 1988), United Nations, Treaty Series, vol. 1689,
No. 29123, p. 23.
196 Mexico and Guatemala: Agreement on cooperation for the prevention
of and assistance in cases of natural disasters (Guatemala City,
10 April 1987), ibid., vol. 1509, No. 26055, p. 3.
197 Federal Republic of Germany and Hungary: Agreement on matters
of common interest relating to nuclear safety and radiation protection
(Budapest, 26 September 1990), ibid., vol. 1706, No. 29504,
p. 263.
198 France and Italy: Convention on the prediction and prevention of
major hazards and on mutual assistance in the event of natural or manmade
disasters (Paris, 16 September 1992), ibid., vol. 1962, No. 33532,
p. 369.
Korea and Poland,199 Poland and Hungary,200 Poland
and Ukraine,201 Poland and the Russian Federation,202
the Russian Federation and Greece,203 Switzerland and
Italy,204 the United States and the Russian Federation,205
the United States and Poland,206 the United States
and Bulgaria,207 the United States and Ukraine,208 the
United States and the Philippines,209 Uruguay and
Spain,210 Spain and Mexico,211 the Russian Federation and
Spain,212 and France and Malaysia.213 The last-mentioned
199 Republic of Korea and Poland: Agreement on scientific and
technological cooperation (Seoul, 29 June 1993), ibid., vol. 1847,
No. 31455, p. 289.
200 Agreement between the Governments of the Republic of Poland
and the Republic of Hungary on Cooperation and Mutual Aid in Preventing
Catastrophes, Natural Disasters and other Serious Events and
in Eliminating their Effects (6 April 2000).
201 Agreement between the Government of the Republic of Poland
and the Cabinet of Ministers of Ukraine on Cooperation and Mutual
Aid in Preventing Catastrophes, Natural Disasters and other Serious
Events and in Eliminating their Effects (19 July 2002).
202 Agreement between the Government of the Republic of Poland
and the Government of the Russian Federation on Cooperation Preventing
the Technological and Natural Disasters and Elimination of their
Effects (Warsaw, 25 August 1993).
203 Agreement between the Government of the Hellenic Republic
and the Government of the Russian Federation on co-operation in the
field of prevention and response to natural and man-made disasters
(Athens, 21 February 2000).
204 Agreement between the Swiss Confederation and the Italian
Republic on Cooperation in the Area of Risk Management and Prevention
and on Mutual Assistance in the Event of Natural and Man-made
Disasters (Rome, 2 May 1995).
205 Memorandum of Understanding between the Government of the
United States of America and the Government of the Russian Federation
on cooperation in natural and man-made technological emergency
prevention and response (Moscow, 16 July 1996), United Nations,
Treaty Series, No. 50116, p. 1.
206 Protocol of Intentions between the Federal Emergency Management
Agency (United States of America) and the Ministry of Defence of
the Republic of Poland on cooperation in natural and man-made technological
emergency prevention and response (Warsaw, 9 May 2000).
207 Protocol of Intentions between the Federal Emergency Management
Agency (United States of America) and the Ministry of Defence
of the Republic of Bulgaria on Cooperation in natural and man-made
technological emergency prevention and response (Washington, D.C.,
24 January 2000).
208 Memorandum of Understanding between the Government of the
United States of America and the Government of Ukraine on Cooperation
in Natural and Man-made Technological Emergency Prevention
and Response (Kiev, 5 June 2000).
209 Protocol of Intentions between the Government of the
United States of America and the Republic of the Philippines Concerning
Cooperation and Disaster Prevention and Management (Washington,
D.C., 20 November 2001).
210 Agreement between the Ministry of National Defence of the
Eastern Republic of Uruguay and the Ministry of the Interior of the
Kingdom of Spain on Scientific and Technological Cooperation and
Mutual Assistance in Civil Defence and Disaster Prevention (Madrid,
25 September 1997).
211 Agreement between the Ministry of the Interior of the Kingdom
of Spain and the Ministry of the Interior of the United Mexican States
on Scientific and Technological Cooperation and Mutual Assistance in
Civil Defence and Disaster Prevention, 1997.
212 Agreement between the Government of the Kingdom of Spain
and the Government of the Russian Federation on cooperation in the
field of prevention of natural disasters and mutual assistance in the mitigation
of their outcome (Madrid, 14 June 2000), United Nations, Treaty
Series, vol. 2153, No. 37586, p. 57.
213 Agreement between the Government of the French Republic
and the Government of Malaysia on Cooperation in the Field of Disaster
Prevention and Management and Civil Security (Paris, 25 May
1998), Journal officiel de la République française, 9 December 1998,
p. 18519.
18 Documents of the sixty-fifth session
agreement provides an illustrative example of the type of
language in these agreements that speaks to the importance
of cooperation: “Convinced of the need to develop
cooperation between the competent organs of both Parties
in the field of the prevention of grave risks and the protection
of populations, property and the environment.”214
77. By way of illustration, one of the earliest examples
of a bilateral agreement addressing disaster risk reduction
is that concluded between the United Kingdom and the
United States in 1958, which includes elements to improve
technology in forecasting, information sharing and
early warning for hurricanes. The agreement was for a cooperative
meteorological programme for the purpose of
achieving “greater accuracy and timeliness in forecasts of
hurricanes and in warnings of accompanying destructive
winds, tides, and floods”.215
78. The United States has also concluded several bilateral
agreements with other countries that address both
disaster prevention and management. An agreement concluded
with Poland indicated that “the Parties intend to
cooperate in natural and man-made technological disaster
mitigation, preparedness, response, and recovery in
the areas of training, expert assistance and exchange of
experiences”.216 The activities primarily concerned were
training and the exchange of information.217 A similar
agreement, signed with the Philippines, expressed the
desire of both countries to “further cooperative activities
in disaster prevention and management through a framework
of collaboration that facilitates the exchange of expertise,
knowledge, and information, and the transfer of
new technology in emergency management”.218
79. More than two decades ago, France signed bilateral
agreements with Italy and Greece to address major risks
that could lead to natural disasters. The agreement with
Greece, signed in 1989, concerned cooperation on major
natural risks and outlined activities to predict and prevent
risks and to mitigate their effects.219 A similar agreement
with Italy, signed in 1992, covered prediction and prevention
of risks, including through information exchange, as
part of a broader agreement addressing both pre-disaster
prevention and disaster response.220
80. In 2000, Greece and the Russian Federation signed
a bilateral agreement for the purpose of cooperation in
214 Ibid., fourth preambular paragraph (original: French).
215 United Kingdom of Great Britain and Northern Ireland and
United States of America: Exchange of notes constituting an agreement
for the continued operation of hurricane research stations in the Cayman
Islands established under the Agreement of 30 December 1958
as amended by the Agreement of 15 February 1960 (Washington,
23 November and 12 December 1966), United Nations, Treaty Series,
vol. 603, No. 8735, p. 235.
216 Protocol of Intentions… (footnote 206 above).
217 Ibid.
218 See footnote 209 above.
219 Agreement on the modalities of Franco–Hellenic cooperation
with regard to major natural hazards (Paris, 11 May 1989), United Nations,
Treaty Series, vol. 1549, No. 26941, p. 299. Under art. 1, the
Governments “shall cooperate with regard to major natural hazards.
Their cooperation shall be aimed at: Hazards prediction, when possible;
Hazards prevention, either by keeping hazards from degenerating into
disasters or by attenuating their effects.”
220 See footnote 198 above.
“prevention and response to natural and man-made
disasters”.221 The agreement defined “emergency prevention”
as “a set of measures taken in advance and aimed
at a maximum possible reduction of emergency risk,
protection of health of population, diminishing damage
for natural environment and material losses in case
of emergency”.222 This agreement mentioned a range of
activities specifically geared towards disaster prevention,
including through environmental monitoring, assessment
of risk and exchange of information.223
81. Other bilateral agreements concluded by States for
a purpose other than risk reduction included provisions
on disaster prevention. A bilateral agreement concluded
in 2002 between South Africa and Nigeria referred to
capacity-building and exchange of information for public
health issues, including “emergency preparedness and
response”.224 An agreement concluded between Germany
and Austria in 1988 primarily concerning cooperation in
disaster response also included provisions on disaster prevention.
225 Under this agreement, the two States were to
cooperate “in preventing and countering disasters or serious
accidents, by exchanging all relevant scientific and
technical information … In exchanging information of
risks and damage which may affect the territory of the
other Contracting State this exchange of information shall
include precautionary data measurements”.226 A similar
bilateral agreement signed between Belgium and France
in 1981 included an article specifically on disaster prevention
relating to forecasting and prevention.227 This agreement
included pledges to exchange information relating
to forecasting and prevention.228
2. M ultilateral instruments
82. The Special Rapporteur turns now to the examination
of the text of multilateral instruments, both global
and regional, concerned with the prevention of any disaster,
regardless of its transboundary effects. In assessing
each instrument, the discussion focuses on States’ obligations
to adopt or implement appropriate legislative and
regulatory measures to fulfil their preventive obligations.
Such “necessary measures” are the hallmark of due diligence
and may serve to tie these instruments to a more
general duty to prevent and mitigate disasters.
83. There is no comprehensive international instrument
obliging States to prevent natural or man-made
disasters. Instead, the international system has to date
221 See footnote 203 above.
222 Ibid., art. 1.
223 Ibid., art. 3.
224 Agreement between the Government of the Republic of South
Africa and the Government of the Federal Republic of Nigeria on
Cooperation in the Field of Health and Medical Sciences (Pretoria,
28 March 2002).
225 Austria and Federal Republic of Germany: Agreement concerning
mutual assistance in the event of disasters or serious accidents
(Salzburg, 23 December 1988), United Nations, Treaty Series,
vol. 1696, No. 29224, p. 61.
226 Ibid., art. 13.
227 France and Belgium: Convention on mutual assistance in the
event of disasters or serious accidents (Paris, 21 April 1981), United Nations,
Treaty Series, vol. 1437, No. 24347, p. 33.
228 Ibid., art. 11.
Protection of persons in the event of disasters 19
It provides for a general requirement for States parties to
“undertake to explore all possibilities for co-operation in
the areas of prevention, forecasting, preparation, intervention
and post-crisis management”.233
87. Aside from the Framework Convention on civil defence
assistance, the Tampere Convention on the Provision
of Telecommunication Resources for Disaster Mitigation
and Relief Operations is often cited as one of the
global instruments to address disaster risk reduction.234
It expressly makes prediction and mitigation of disasters
a priority in the area of telecommunication assistance.
235 The Convention obliges States to cooperate with
other States, “non-State entities” and intergovernmental
organizations to facilitate the use of telecommunication
resources for disaster mitigation,236 which the Convention
defined as “measures designed to prevent, predict,
prepare for, respond to, monitor and/or mitigate the impact
of, disasters”.237 To achieve this duty of cooperation,
States may deploy equipment to “predict, monitor and
provide information” about disasters,238 share information
among themselves about potential disasters239 and
provide “prompt telecommunication assistance to mitigate
the impact of a disaster”.240 Thus, just as the Framework
Convention on civil defence assistance, the Tampere
Convention requires States only to “cooperate” with other
States in disaster risk reduction. An obligation to prevent
disasters within State borders can, however, be inferred
from this duty to cooperate and from the other articles
of the Convention. The Convention creates an internal
obligation of States to “reduce or remove regulatory barriers
to the use of telecommunication resource for disaster
mitigation and relief”.241 Thus, a State party’s duty to
use telecommunications to mitigate disasters includes an
obligation to take appropriate legislative and regulatory
measures to promote disaster mitigation, which mirrors
the traditional “due diligence” obligation identified in
international environmental law instruments.
88. A duty of due diligence can also be read into global
instruments covering specific types of potential disasters.
Unlike the Framework Convention on civil defence assistance
and the Tampere Convention, conventions covering
industrial accidents, nuclear safety and environmental
harm do not directly mention disaster situations. Given
the definition by the Commission of “disaster” in draft
article 3 of its draft articles on the present topic, each instrument
addresses conditions that can rise to the level
of a disaster if they cause “widespread loss of life, great
human suffering and distress, or large-scale material or
233 Art. 4.
234 See, for example, Nicoletti, “The prevention of natural and manmade
disasters: what duties for States”, p. 184 (discussing only the
Framework Convention on civil defence assistance and the Tampere
Convention as creating international disaster risk reduction obligations).
235 Art. 3, paras. 1–2. In art. 1, para. 15, the Convention also defines
“telecommunications” as “any transmission, emission, or reception of
signs, signals, writing, images, sounds or intelligence of any nature, by
wire, radio, optical fibre or other electromagnetic system”.
236 Art. 3, para. 1.
237 Art. 1, para. 7.
238 Art. 3, para. 2 (a).
239 Art. 3, para. 2 (b).
240 Art. 3, para. 2 (c).
241 Art. 9, para. 1.
followed a piecemeal approach when including disaster
risk reduction in treaty obligations, either focusing on
the kind of disaster (e.g. industrial or nuclear accidents)
or the kind of State response activity (e.g. telecommunications
assistance). Taken together, these instruments
contain common language revolving around States’ due
diligence obligations regarding the prevention and mitigation
of certain disasters.
84. In 1980, the Office of the United Nations Disaster
Relief Coordinator published a compendium of legal arrangements
for disaster prevention and mitigation,229 it
being a “comprehensive review of existing knowledge of
the causes and characteristics of national phenomena and
the preventive measures which may be taken to reduce
or eliminate their impact on disaster-prone developing
countries”.
(a) Global instruments
85. The first global international treaty that may be
said to have addressed, albeit indirectly, the question of
prevention is the United Nations Convention on the Law
of the Sea, article 145 of which, on the protection of the
marine environment, provides that “necessary measures
shall be taken in accordance with this Convention … to
ensure effective protection for the marine environment
from harmful effects which may arise from such activities”.
Mention should also be made in this connection
of the Convention on the Law of the Non-navigational
Uses of International Watercourses, which requires watercourse
States to prevent and mitigate harm to other watercourse
States. It should be observed, however, that these
prevention provisions were very much environmental
law-oriented, as were most of the similar pronouncements
referring to prevention made in the last two decades of the
twentieth century.230
86. As observed by the Secretariat, “the closest contemporary
global international convention dealing with the
prevention and mitigation of disasters” is the Framework
Convention on civil defence assistance.231 Currently with
14 States parties and 12 signatories, it entered into force
in 2001 and aims to promote cooperation among State
civil defence authorities “in terms of prevention, forecasting,
preparedness, intervention and post-crisis management”
(preamble). Although most of the Convention covers
inter-State assistance after a disaster has occurred, it also
envisages prevention as a key element of “assistance”.232
229 Disaster Prevention and Mitigation: A Compendium of Current
Knowledge, vol. 9, Legal Aspects (United Nations publication, Sales
No. 80.III.M.1, 1980).
230 Such as the Vienna Convention for the Protection of the Ozone
Layer and its Montreal Protocol on Substances that Deplete the Ozone
Layer, in addition to the Convention on biological diversity, eighth and
ninth preambular paragraphs.
231 A/CN.4/590 and Add.1–3 (footnote 78 above), para. 36. It
should also be noted that the Convention and Statute establishing an
International Relief Union made one of its objectives the prevention of
disasters (art. 2, para. 2). The Union was, however, formally replaced
by UNESCO in 1968, which did not include disaster prevention among
its objectives. See Nicoletti, “The prevention of natural and man-made
disasters: what duties for States”, p. 183, footnote 24.
232 Art. 1 (d) defines “assistance” as “any action undertaken by the
Civil Defence Service of a State for the benefit of another State, with the
objective of preventing, or mitigating the consequences of disasters”.
20 Documents of the sixty-fifth session
measures and other steps necessary” for implementing
it.250 The Convention works in conjunction with the
Convention on Early Notification of a Nuclear Accident.
That Convention, with 115 States parties, establishes
a notification system through the International Atomic
Energy Agency for any nuclear accident that has the
potential for transboundary harm to another State.251 It
mandates States to notify those States that could be affected
by significant nuclear accidents listed in article 1
not only about the existence of the harm but also about
information relevant for mitigation damage.252
91. Core international environmental law instruments
also require States to take preventive steps regarding
potential environmental disasters. The United Nations
Framework Convention on Climate Change, for example,
recognizes that “Parties should take precautionary measures
to anticipate, prevent or minimize the causes of climate
change and mitigate its adverse effects”.253 The Convention
specifically requires developed countries listed
under its annex I to adopt national policies to mitigate
climate change through the reduction of greenhouse gas
emissions254 and commits all parties to formulate and implement
domestic measures to mitigate climate change.255
It is important to note that, under the Convention, States’
duties to mitigate climate change and its resulting effects
do not depend on transboundary harm to other States. Instead,
the Convention applies to all anthropogenic emissions
of greenhouse gas emissions, regardless of their
potential effect on other countries. Moreover, in 2007,
the States parties to the Convention recognized the link
between climate change and disaster risk reduction by
adopting the Bali Action Plan, in which States were called
upon to adapt their national climate change plans to reflect
“disaster reduction strategies”.256
92. Other environmental conventions on specific areas
such as biological diversity, desertification and environmental
impact assessments also incorporate a duty to prevent
in circumstances that could become disasters. For
example, although the Convention on biological diversity
focuses on responsibility for transboundary environmental
damage,257 it also requires each State party to develop
national strategies on environmental conservation258 and
implement procedures for environmental impact assessments
for projects likely to have significant adverse effects
on biological diversity.259 Similarly, the United Nations
Convention to Combat Desertification calls upon States
to implement programmes to “combat desertification and/
or mitigate the effects of drought”260 through appropriate
and necessary legislation and regulatory measures261 and
national action programmes encompassing early warning
250 Art. 4. See also art. 7.
251 Art. 1, para. 1.
252 Art. 2.
253 Art. 3, para. 3.
254 Art. 4, para. 2 (a).
255 Art. 4, para. 1 (b).
256 FCCC/CP/2007/6/Add.1, decision 1/CP.13, para. 1 (c) (iii).
257 Art. 3.
258 Arts. 6–7.
259 Art. 14.
260 Art. 3 (a).
261 Arts. 4–5.
environmental damage, thereby seriously disrupting the
functioning of society”. For example, the Convention on
the Transboundary Effects of Industrial Accidents applies
to the prevention of, preparedness for and response
to industrial accidents “capable of causing transboundary
effects”, including those caused by natural disasters.242
The preamble of ILO Convention (No. 174) concerning
the Prevention of Major Industrial Accidents, adopted
in 1993, recognizes “the need to ensure that all appropriate
measures are taken to: (a) prevent major accidents;
(b) minimize the risks of major accidents; and (c) minimize
the effects of major accidents”.
89. The Convention on the Transboundary Effects of
Industrial Accidents obliges States parties to “take appropriate
measures” to prevent industrial accidents through
“preventive, preparedness and response measures”.243
States parties must take “appropriate legislative, administrative
and financial measures” to implement their prevention
obligations244 and establish emergency preparedness
mechanisms to respond to industrial accidents.245 For example,
the Convention states that “the Parties shall take
appropriate measures for the prevention of industrial accidents,
including measures to induce action by operators to
reduce the risk of industrial accidents”.246 Thus, although
States are required under the Convention only to take
steps to prevent transboundary accidents, the accidents
themselves, especially in the case of natural disasters, occur
within the State, and the State’s due diligence obligation
revolves around domestic prevention of internal
industrial accidents.
90. A specific type of man-made disaster can arise
as a result of nuclear activity. Several instruments
refer to prevention in this context. Under the Convention
on Assistance in the Case of a Nuclear Accident or
Radiological
Emergency, the general provisions require
States to cooperate to minimize the consequences of a
nuclear disaster by entering into agreements “for preventing
or minimizing injury and damage which may
result in the event of a nuclear accident or radiological
emergency”.247 Similarly, the Convention on Nuclear
Safety seeks to “prevent accidents with radiological
consequences and to mitigate such consequences should
they occur”.248 This convention, unlike the Convention
on the Transboundary Effects of Industrial Accidents,
does not apply only to activities that may cause harm
to other States. Instead, it applies to any civilian nuclear
installation regardless of its potential transboundary
harm. Although the Convention on Nuclear Safety never
expressly articulates a duty of States to prevent nuclear
accidents, it is clear that the entire object and purpose of
the Convention is to create international obligations to
promote nuclear safety in order to prevent nuclear disasters.
249 Moreover, the Convention requires States parties
to take “legislative, regulatory and administrative
242 Art. 2, para. 1.
243 Art. 3, para. 1.
244 Art. 3, para. 4.
245 Art. 8, para. 1.
246 Art. 6, para. 1.
247 Art. 1, paras. 1 and 2.
248 Art. 1, para. (iii).
249 Ibid.
Protection of persons in the event of disasters 21
systems.262 Lastly, the Convention on environmental impact
assessment in a transboundary context sets out the
obligations of States parties to assess the environmental
impact of certain activities at an early stage of planning.
It also lays down the general obligation of States to notify
and consult one another on all major projects under
consideration that are likely to have a significant adverse
environmental impact across boundaries. In particular, it
requires States parties to “take all appropriate and effective
measures to prevent, reduce and control significant
adverse transboundary environmental impact from proposed
activities”.263 In this way, the Convention, just as
the other environmental treaties, closely tracks article 3
of the draft articles on prevention of transboundary harm,
laying down the general duty of States to prevent significant
transboundary harm.
93. Moreover, although many environmental conventions
focus on the duty to prevent deleterious transboundary
effects, there is significant overlap between the topics
covered by these conventions and disaster situations.
These international instruments are also constructive because
they each contain a duty of due diligence.
(b) Regional instruments
(i) Asia
94. In Asia and the Pacific, the ASEAN Agreement on
Disaster Management and Emergency Response is the
most specific and comprehensive international instrument
binding States to prevent and mitigate disasters
through the adoption of disaster risk reduction mechanisms.
The treaty, signed in 2005, entered into force
in 2009 and has been ratified by all 10 States members
of ASEAN. It aims to “provide effective mechanisms
to achieve substantial reduction of disaster losses in
lives and in the social, economic and environmental
assets of the Parties, and to jointly respond to disaster
emergencies”.264 It states that States parties “shall give
priority to prevention and mitigation, and thus shall take
precautionary measures to prevent, monitor and mitigate
disasters”.265 In terms of mitigation, it expressly requires
that States parties “immediately respond to a disaster occurring
within their territory”,266 and each of these obligations
must be met by taking necessary legislative and
administrative measures.267
95. The Agreement contains three primary categories of
disaster risk reduction obligations: risk identification and
monitoring; prevention and mitigation; and disaster preparedness.
First, States parties must identify all disaster
risks within their territory and assign disaster risk levels to
each potential hazard.268 Second, article 6 requires States
parties, jointly or individually, to “identify, prevent and
reduce risks arising from hazards”.269 The Agreement then
262 Art. 10, para. 3 (a).
263 Art. 2, para. 1.
264 Art. 2.
265 Art. 3, para. 4.
266 Art. 4 (b).
267 Art. 4 (d).
268 Art. 5.
269 Art. 6, para. 1.
places the onus on “each Party” to adopt and implement
legislative and regulatory measures on disaster mitigation
and to strengthen local and national disaster management
plans.270 Lastly, States parties have a duty to prepare for
disasters by establishing and maintaining “national disaster
early warning arrangements”271 and by developing
strategies and response plans to reduce losses from disasters.
272 Together, these provisions create a comprehensive
duty on all States members of ASEAN to take measures
necessary to prevent, prepare for and mitigate disasters.
96. Other (non-binding) agreements in Asia also encourage
States to work individually and together to reduce the
risk of disasters. For example, the Asia-Pacific Economic
Cooperation (APEC) forum adopted the APEC Framework
for Capacity Building Initiatives on Emergency Preparedness,
urging States to cooperate in a number of initiatives,
including with regard to the legislative frameworks
of member States. The APEC Principles on Disaster Response
and Cooperation, adopted in 2008, also call upon
individual member States to formulate and implement disaster
risk mitigation and preparedness policies and early
warning systems.273 In addition, in the wake of the 2004
tsunami in Asia, the South Asian Association for Regional
Cooperation endorsed a new comprehensive framework on
early warning and disaster management, in which States
committed themselves to developing and implementing
risk reduction programmes within their own territories and
to providing support to regional early warning systems.274
In addition, the Delhi Declaration on Disaster Risk Reduction
in Asia 2007 includes extensive provisions urging
States to implement the Hyogo Framework for Action and
to pass and strengthen legislative frameworks for disaster
risk reduction.275 The Dhaka Declaration on South Asia’s
Environmental Challenges and Natural Disasters calls for
regional measures of prevention.276 The Incheon Declaration
on Disaster Risk Reduction in Asia and the Pacific
2010 reaffirms the commitment to the Hyogo Framework
for Action and urges Governments and international actors
to implement its five priorities for action.277
(ii) Africa
97. Various African organizations have established regional
and subregional agencies that facilitate informationsharing
and capacity-building tools relating to disaster risk
reduction. Article 13, paragraph 1 (e) of the Constitutive
Act of the African Union provides that its Executive Council
may “take decisions on policies in areas of common interest
to the Member States, including … environmental
protection, humanitarian action and disaster response and
relief”. Pursuant to this mandate, the African Union and
270 Art. 6, para. 2.
271 Art. 7.
272 Art. 8.
273 Available from http://aimp.apec.org/Documents/2008/SOM/CSOM
/08_csom_020.pdf.
274 Available from www.saarc-sec.org.
275 Available from http://siteresources.worldbank.org/CMUDLP/Re
sources/Delhi_Declaration_on_DRR_2007.pdf.
276 Available from http://saarc-sec.org/uploads/digital_library_
document/13_-_Dhaka_-_13th_Summit_12-13_Nov_2005.pdf,
para. 33.
277 Available from www.unisdr.org/files/16327_incheondeclaration
4amcdrrrev3.pdf.
22 Documents of the sixty-fifth session
the New Partnership for Africa’s Development adopted
the Africa Regional Strategy for Disaster Risk Reduction
in 2004.278 The Strategy is intended to facilitate initiatives
at the subregional and national levels.279
98. In addition, the Economic Community of West African
States approved its policy for disaster risk reduction
in 2006 and recently established an implementation mechanism
on disaster risk reduction, consisting of a ministerial
coordination committee and a disaster management task
force in the secretariat.280 That mechanism has a mandate
to coordinate State requests for international assistance and
the mobilization of emergency response teams for member
States. In 2002, the Intergovernmental Authority on Development
(IGAD) developed a regional disaster risk management
programme addressing issues relating to disaster risk
reduction and management, including support for building
national legislation on disaster management and identifying
opportunities “for agreements on mutual assistance and
development in disaster management at regional level and
for cross-border agreements on harmonizing disaster management
arrangements”.281
99. Currently, the East African Community is enacting a
disaster risk reduction and management bill as an attempt
to operationalize article 112 (1) (d) of the Treaty for the
Establishment of the East African Community, in which the
partner States agreed to take necessary disaster preparedness,
management, protection and mitigation measures especially
for the control of natural and man-made disasters.
(iii) Arab region
100. In the Arab region, the League of Arab States developed
the Arab Strategy for Disaster Risk Reduction
2020, which was adopted by the Council of Arab Ministers
Responsible for the Environment at its twenty-second
session, on 19 December 2010.282 The strategy has two
purposes: “to outline a vision, strategic priorities and core
areas of implementation for disaster risk reduction in the
Arab region” and “to enhance institutional and coordination
mechanisms, and monitoring arrangements to support
the implementation of the Strategy at the regional, national
and local level through preparation of a Programme of
Action”.283 Deriving from the Hyogo Framework for Action
and based on the purpose of the Arab Strategy, five
corresponding key priorities were developed: strengthen
commitment for comprehensive disaster risk reduction
across sectors; develop capacity to identify, assess and
monitor disaster risks; build resilience through knowledge,
advocacy, research and training; improve accountability
for disaster risk management at the subnational and local
278 Available from www.unisdr.org/files/13093_AFRICAREGION
ALDRRSTRATEGYfullPDF.pdf.
279 One of the express objectives of the Strategy is to “increase political
commitment to disaster risk reduction” (para. 3.2).
280 The policy is available from www.preventionweb.net/files/4037_
ECOWASpolicyDRR.pdf. Under the policy, “national authorities recognize
the need to develop and strengthen institutions required to build
resilience to hazards”, meaning that “political commitment to disaster
risk reduction is increasing in the sub-region” (para. 2.2.1).
281 IGAD, “Disaster risk management programme for the IGAD region”,
p. 18.
282 Available from www.preventionweb net/publications/view/18903.
283 Available from www.preventionweb net/files/18903_17934asdrr
finalenglishjanuary20111.pdf.
levels; and integrate disaster risk reduction into emergency
response, preparedness and recovery.284 The implementation
of the programme was envisaged in two phases, with a
review in 2015, and the expected outcome in 2020 to substantially
reduce “disaster losses, in lives and in the social,
economic and environmental assets of communities and
countries across the Arab region”.285
(iv) Europe
101. Developments in Europe centre on the involvement
of the European Union in prevention, preparedness and
mitigation strategies originally referred to as civil protection.
Since 1985, when a ministerial-level meeting in Rome
addressed the issue, several resolutions on civil protection
have been adopted, building the foundation on which disaster
risk reduction today stands.286 Civil protection in the
European Union was lifted to another level with the adoption
of the Treaty of Lisbon amending the Treaty on European
Union and the Treaty establishing the European Community,
which entered into force on 1 December 2009. The
resulting consolidated version of the Treaty on the Functioning
of the European Union regulated the competences
of European Union organs, including as regards article 196
of the Treaty, on civil protection, and established a legal
basis for European Union actions thereon.
102. The competence granted in article 196 is only a
complementary competence “to carry out actions to support,
coordinate or supplement the actions of the Member
States, without thereby superseding their competence
in these areas” (art. 2, para. 5). Pursuant to the Treaty of
Lisbon:
1. The Union shall encourage cooperation between Member
States in order to improve the effectiveness of systems for preventing
and protecting against natural or man-made disasters. Union action
shall aim to:
(a) support and complement Member States’ action at national,
regional and local level in risk prevention, in preparing their civil-protection
personnel and in responding to natural or man-made disasters
within the Union;
(b) promote swift, effective operational cooperation within the
Union between national civil-protection services;
284 Ibid., p. 4.
285 Ibid.
286 Resolution of the Council and the representatives of the Governments
of the Member States, meeting within the Council of 25 June
1987 on the introduction of Community Cooperation on Civil Protection
(25 June 1987), Official Journal of the European Communities,
No. C 176, 4 July 1987, p. 1; resolution of the Council and the representatives
of the Governments of the Member States, meeting within the
Council on the new developments in Community cooperation on civil
protection (13 February 1989), ibid., No. C 44, 23 February 1989, p. 3;
resolution of the Council and the representatives of the Governments
of the Member States, meeting within the Council on Community cooperation
on civil protection (23 November 1990), ibid., No. C 315,
14 December 1990, p. 1; resolution of the Council and the representatives
of the Governments of the Member States, meeting within the
Council on improving mutual aid between Member States in the event
of natural or technological disaster (8 July 1991), ibid., No. C 198,
27 July 1991, p. 1; resolution of the Council and the representatives of
the Governments of the Member States, meeting within the Council on
strengthening Community cooperation on civil protection (31 October
1994), ibid., No. C 313, 10 November 1994, p. 1; and resolution of the
Council and of the representatives of the Governments of the Member
States, meeting within the Council on strengthening the capabilities of
the European Union in the field of civil protection (26 February 2001),
ibid., No. C 82, 13 March 2001, p. 1.
Protection of persons in the event of disasters 23
(c) promote consistency in international civil-protection work.
2. The European Parliament and the Council, acting in accordance
with the ordinary legislative procedure, shall establish the measures
necessary to help achieve the objectives referred to in paragraph 1,
excluding any harmonisation of the laws and regulations of the Member
States.287
103. Lastly, article 222 of the consolidated version of
the Treaty on the Functioning of the European Union,
known as the “solidarity clause”, enshrines an obligation
for member States to “act jointly in a spirit of solidarity if
a Member State is… the victim of a natural or man-made
disaster”. This “hard-law” provision sets the European
Union apart from other regional coordination schemes:
any action taken by it under this provision will need to be
enacted within the ordinary legislative procedure (art. 294
of the Treaty) and thereby established as European Union
law, in the form of regulations, directives and decisions.288
104. In 2001, the European Union established the Community
Mechanism for Civil Protection “to ensure even
better protection in the event of natural, technological,
radiological and environmental emergencies”.289 The
mechanism, which was reformed and updated in 2007,290
successfully enhanced European Union protection strategies
in emergencies for the subsequent years, also in
third States.291 Recently, the European Union proposed a
decision on a new reformed European Union civil protection
mechanism.292 While the emphasis of the Mechanism
in force since 2007 is mainly on preparedness
and response, the 2007 reform envisaged some rules on
prevention and early warning.293 The proposal, in comparison,
aims to develop an “integrated approach” to disaster
management, including prevention, preparedness
and response. This would include the establishment of
an emergency response centre; the development of reference
scenarios for the main types of disaster; the development
of contingency plans in member States; and
pre-committed civil protection assets (pooling).294 One
specific objective would thus be “to achieve a high level
of protection against disasters by preventing or reducing
their effects and by fostering a culture of prevention”
and “to enhance the Union’s state of preparedness to respond
to disasters”.295
287 Art. 176 C.
288 Gestri, “EU Disaster response law: principles and instruments”,
pp. 116–117.
289 Council Decision of 23 October 2001 establishing a Community
mechanism to facilitate reinforced cooperation in civil protection assistance
interventions (2001/792/EC), Official Journal of the European
Communities, No. L 297, 15 November 2001, p. 7.
290 Council Decision of 8 November 2007 establishing a Community
Civil Protection Mechanism (recast)(2007/779/EC), Official Journal of
the European Union, No. L 314, (1 December 2007), p. 9.
291 See the Communication from the Commission to the Council, the
European Parliament, the European Economic and Social Committee
and the Committee of the Regions—Improving the Community Civil
Protection Mechanism (COM/2005/137 final), p. 2.
292 See the Proposal for a Decision of the European Parliament
and of the Council on a Union Civil Protection Mechanism
(COM/2011/934 final).
293 Communication from the Commission to the Council and the
European Parliament—EU strategy for supporting disaster risk reduction
in developing countries (COM/2009/84 final).
294 See the Proposal for a Decision on a Union Civil Protection
Mechanism (footnote 292 above).
295 Ibid., art. 3, para. 1 (a)–(b).
105. The involvement of the European Union in the
implementation of disaster risk reduction can be better
appreciated in a number of normative activities carried
out at the European Union level. In 2008, the European
Commission approved a communication on reinforcing
the disaster response capacity of the Union, which was
a preliminary effort to pave the way towards a European
Union approach to disaster risk reduction. In 2009, the
Commission adopted two communications relating to
disaster risk reduction: a community approach on the
prevention of natural and man-made disasters296 and a
strategy for supporting disaster risk reduction in developing
countries.297 The former plays a fundamental role
in the European Union effort towards a common enabling
environment for disaster risk reduction.298 In particular,
it identifies specific areas in which action at the
European Union level could provide added value: establishing
a European Union-level inventory of existing information
and best practices; developing guidelines on
hazards and risk mapping; linking actors and policies
throughout the disaster management cycle; improved
access to early warning systems; and more efficient targeting
of community funds.
106. On 20 March 1987, the Council of Europe Committee
of Ministers adopted resolution 87 (2), creating
a cooperation group for the prevention of, protection
against and organization of relief in major natural and
technological disasters. This intergovernmental forum,
now known as the European and Mediterranean Major
Hazards Agreement, fosters research, public information
and policy dialogue on disaster-related matters among
its 27 member States.
107. The Council of Europe has stressed the imperative
nature of the duty to prevent and mitigate the risks of nuclear
disasters. In resolution 1087 (1996), on the consequences
of the Chernobyl disaster, the Council of Europe
Parliamentary Assembly recognized that “urgent action is
imperative and must be viewed as an overriding priority
for the international community” to take “practical steps
to avert or at the very least reduce such risks” of a nuclear
disaster (paras. 10–11).
108. European subregional groups have been also active
in signing binding agreements containing disaster risk reduction
elements. For example, in 1998, the Agreement
among the Governments of the Participating States of the
Black Sea Economic Cooperation (BSEC) on Collaboration
in Emergency Assistance and Emergency Response
to Natural and Man-made Disasters set out procedures
to request assistance, required requesting States to “ensure
unobstructed receipt and distribution of goods of
assistance exclusively among the afflicted population”
without discrimination, and called upon them to simplify
and expedite customs procedures and waive customs fees
and charges. In 1992, the States members of the Central
296 Communication from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and
the Committee of the Regions—A Community approach on the prevention
of natural and man-made disasters (COM/2009/82 final).
297 See footnote 293 above.
298 See La Vaccara, “An enabling environment for disaster risk
reduction”, pp. 199 and 208.
24 Documents of the sixty-fifth session
European Initiative adopted the Cooperation Agreement
on the Forecast, Prevention and Mitigation of Natural and
Technological Disasters, requiring member States to cooperate
with one another to adopt prevention and mitigation
measures (arts. 1–2). The agreement also sets up a
joint committee responsible for developing “procedures
for tighter solidarity” for cooperation in response to a disaster
(arts. 4–5).
(v) Latin America and the Caribbean
109. The Inter-American Convention to Facilitate Disaster
Assistance, adopted in 1991, is the only regional
convention for the entire Americas directly relating to
disasters. The Convention, which entered into force
in 1996, exclusively focuses on disaster response and is
thus of limited value in determining pre-disaster responsibilities
of States.
110. At the subregional level, however, agreements
place increasing importance on disaster prevention and
mitigation. In 1999, the Association of Caribbean States
adopted its own treaty on disaster response: the Agreement
between Member States and Associate Members of
the Association of Caribbean States for Regional Cooperation
on Natural Disasters.299 The Agreement expressly
aims to create “a network of legally binding mechanisms
that promote co-operation for prevention, mitigation and
management of natural disasters” (art. 2). Pursuant to the
Agreement, the Contracting Parties agree to promote “the
formulation and implementation of standards and laws,
policies and programmes for the management and prevention
of natural disasters, in a gradual and progressive
manner”, including through the identification of “common
guidelines and criteria” in a number of areas, such as
the classification of humanitarian supplies and donations
(arts. 4 and 7). The Declaration of Panama300 adopted at
the Fourth Summit of Heads of State and/or Government
of the Association of Caribbean States, affirmed the importance
of prevention in reducing vulnerability to disasters
in the following terms:
We acknowledge the vulnerability of our countries and territories to
natural disasters and their negative impact on our efforts to ensure sustainable
development; we also share the idea that the best way to combat
vulnerability to natural disasters is to integrate disaster management
and risk reduction into development policies and plans at all levels of
our governments. We further reaffirm the importance of international
cooperation, particularly at the regional level, in order to strengthen the
national and regional bodies dedicated to the prevention and mitigation
of risks and natural disasters.301
111. Other subregional instruments have established
agencies to coordinate disaster risk reduction efforts.
For example, in 1991, States members of the Caribbean
Community adopted the Agreement Establishing the
Caribbean Disaster Emergency Response Agency. The
Agreement tasks the Agency with building national capacities
for disaster response. States parties commit themselves
to taking a number of steps to ensure that their national
disaster response systems are adequately prepared
(art. 4). They also commit themselves to reducing legal
299 The text of this Agreement, not yet in force, is available from
www.acs-aec.org.
300 See footnote 188 above.
301 Para. 20.
barriers to the entry of personnel and goods, providing
protection and immunity from liability and taxation to
assisting States and their relief personnel, and facilitating
transit (arts. 21–23).
112. In addition, in 1993, Costa Rica, El Salvador, Guatemala,
Honduras, Nicaragua and Panama created the Coordination
Centre for the Prevention of Natural Disasters
in Central America under the Central American Integration
System as a specialized agency charged with coordinating
implementation of the Regional Disaster Reduction
Plan. The Coordination Centre revised its founding
agreement in 2003 to reflect principles such as international
cooperation, promotion of human rights (including
the right to be protected for disasters) and the participation
of the public in disaster management planning. The
Coordination Centre itself is tasked with facilitating technical
assistance and cooperation among member States in
disaster prevention and mitigation.
D. National policy and legislation
113. As previously noted,302 following the International
Decade for Natural Disaster Reduction, States engaged
in various actions to unify efforts to better prepare for
and reduce the harmful impact of disasters. The resulting
two main agreements—the Yokohama Strategy and the
Hyogo Framework for Action—both call upon States to
implement national legislation that includes disaster prevention,
mitigation and preparedness.
114. As stated above,303 States have implemented the
Hyogo Framework for Action by incorporating disaster
risk reduction into national policy and legal frameworks.
In the 2011 review, 64 States or areas reported having
established specific policies on disaster risk reduction,
evenly spread throughout all continents and regions,
including the major hazard-prone locations. They are:
Algeria, Anguilla, Argentina, Armenia, Bangladesh,
Bolivia (Plurinational State of), Brazil, British Virgin
Islands, Canada, Cape Verde, Chile, Colombia, Cook
Islands, Costa Rica, Côte d’Ivoire, Cuba, Dominican
Republic, Fiji, Finland, Georgia, Germany, Ghana,
Guatemala, Honduras, India, Indonesia, Italy, Japan,
Kenya, Lao People’s Democratic Republic, Lebanon,
Madagascar, Malawi, Malaysia, Maldives, Marshall
Islands, Mauritius, Mexico, Mongolia, Morocco,
Mozambique, Nepal, New Zealand, Nicaragua, Nigeria,
Norway, Panama, Paraguay, Peru, Poland, Saint Kitts
and Nevis, Saint Lucia, Samoa, Senegal, Sri Lanka,
Sweden, Switzerland, Syrian Arab Republic, Thailand,
the former Yugoslav Republic of Macedonia, United
Republic of Tanzania, United States, Vanuatu and
Venezuela (Bolivarian Republic of).
115. More recently, UNISDR has identified 76 States that
have adopted national platforms, defined as a “coordinating
mechanism for mainstreaming disaster risk reduction
into development policies, planning and programmes”, to
implement disaster risk reduction strategies.304
302 See para. 35 above.
303 Ibid.
304 For a continuously updated list of States that have adopted national
platforms, see www.unisdr.org/partners/countries.
Protection of persons in the event of disasters 25
116. The Secretariat has pointed out that legal and
policy frameworks relating more directly to prevention
have typically been implemented at the national level
versus the regional or international level.305 Several
countries have adopted legislation specifically addressing
disaster risk reduction either as stand-alone legislation
or as part of a broader legal framework concerning
both disaster risk management and disaster response.
States and territories that have enacted national and territorial
laws envisaging disaster risk reduction include
Algeria,306 Cameroon,307 the Dominican Republic,308 El
Salvador,309 Estonia,310 France,311 Guatemala,312 Haiti,313
Hungary,314 India,315 Indonesia,316 Italy,317 Madagascar,318
Namibia,319 New Zealand,320 Pakistan,321 Peru,322 the
Philippines,323 the Republic of Korea,324 Slovenia,325
South Africa,326 Taiwan Province of China,327 Thailand328
and the United States.329
305 A/CN.4/590 and Add.1–3 (footnote 78 above), para. 33.
306 Algeria, Act on the prevention of major risks and the management
of disasters within the framework of sustainable development,
of 25 December 2004, available from www mtp.gov.dz/GUIDE%20
JURIDIQUE/textes-de-portee-generale/5-Loi-n2004-20.pdf.
307 Cameroon, Arrêté No. 037/PM du 19 mars 2003 portant création,
organisation et fonctionnement d’un Observatoire National des
Risques.
308 Dominican Republic, Decree No. 874-09 approving the Regulation
for the application of Law No. 147-02 on Risk Management and
repealing chapters 1, 2, 3, 4 and 5 of Decree No. 932-03 (2009).
309 El Salvador, Law on Civil Protection, Disaster Prevention and
Disaster Mitigation (2005).
310 Estonia, Emergency Preparedness Act (2000).
311 France, Law No. 2003-699 regarding the prevention of technological
and natural risks and reparation of damages (2003).
312 Guatemala, Decree No. 109-96, Law on the National Coordinator
for the Reduction of Natural or Man-made Disasters (1996).
313 Haiti, National Risk and Disaster Management Plan (2001).
314 Hungary, Act LXXIV on the direction and organization of disaster
prevention and the prevention against serious accidents related to
hazardous materials (1999).
315 India, Disaster Management Act, No. 53 (2005), available from
http://indiacode nic.in.
316 Indonesia, Law No. 24 of 2007 Concerning Disaster Management.
317 Italy, Decree of the Prime Minister to establish a national platform
for disaster risk reduction (2008).
318 Madagascar, Decree No. 2005-866 setting out the manner of application
of Law No. 2003-010 of 5 September 2003 on the national
risk and disaster management policy (2005).
319 Namibia, Disaster Risk Management Act (2012).
320 New Zealand, National Civil Defence Emergency Management
Plan Order 2005 (SR 2005/295), part 3.
321 Pakistan, National Disaster Management Act (2010). See also the
official statement of the Government of Pakistan at the third session
of the Global Platform for Disaster Risk Reduction, in 2011, available
from www.preventionweb net/files/globalplatform/pakistanofficialstate
ment.pdf.
322 Peru, Law No. 29664 creating the National System for Disaster
Risk Management (2011).
323 The Philippines, Philippine Disaster Risk Management Act
(2006).
324 Republic of Korea, National Disaster Countermeasures Act
(1995); National Disaster Management Act (2010).
325 Slovenia, Act on the Protection against Natural and Other Disasters
(2006).
326 South Africa, Disaster Management Act No. 57 of 2002.
327 Taiwan Province of China, Disaster Prevention and Response
Act (2002).
328 Thailand, Disaster Prevention and Mitigation Act (2007).
329 United States, Disaster Mitigation Act of 2000.
117. By way of illustration, a few examples of the integration
of prevention into legislative or policy frameworks
may be given. After South Africa passed the Disaster
Management Act in 2002, it followed with a detailed
policy document on its national disaster management
framework. In addition, South Africa has a number of laws
relating to disasters, such as fires, and associated with disaster
prevention, such as those relating to environmental
impact assessments. Namibia has incorporated prevention
into its Disaster Risk Management Act of 2012, intended
“to provide for an integrated and coordinated disaster
management approach that focuses on preventing or
reducing the risk of disasters, mitigating the severity of
disasters, emergency preparedness, rapid and effective
response to disasters and post-disaster recovery”.330 The
Philippines has included prevention in governance structures,
defining it as
the outright avoidance of adverse impacts of hazards and related disasters.
It expresses the concept and intention to completely avoid
potential adverse impacts through action taken in advance such as construction
of dams or embankments that eliminate flood risks, land-use
regulations that do not permit any settlement in high-risk zones, and
seismic engineering designs that ensure the survival and function of a
critical building in any likely earthquake.331
118. Colombia has recently strengthened its national
policy framework relating to disaster management to include
prevention under a single comprehensive framework.
The National Disaster Risk Management System
Act, adopted in April 2012, established a national system
for disaster risk management and includes provisions on
both disaster prevention and response. It creates a framework
with various government bodies such as the Disaster
Risk Management Unit and the National Disaster Prevention
and Response System.332
119. Several States have also implemented policies
focused on disaster risk reduction as a supplement to legislation
or as stand-alone efforts. For example, Ghana
has developed a national disaster risk reduction policy to
integrate disaster risk reduction into planning and operation
of public institutions. Ghana stated at the third session
of the Global Platform for Disaster Risk Reduction,
in 2011, that disaster risk reduction was among the key
factors in considering good governance and sustainable
development.333 Bangladesh provides another example of
robust policies in the absence of a formal law, including
the coordination of 12 ministries under a comprehensive
disaster management programme and the formulation of
a national disaster management plan for the period 2010–
2015, a climate change strategy and action plan (2009)
and standing orders on disaster.334
330 Namibia, Disaster Risk Management Act (2012), preambular
paragraph.
331 The Philippines, Implementing Rules and Regulations of Republic
Act No. 10121, rule 2, sect. 1 (l).
332 World Bank, “For the first time, Colombia has a natural disaster
awareness and prevention policy—Colombia’s President Juan Manuel
Santos”, 24 April 2012.
333 See www.preventionweb net/files/globalplatform/global
platform2011ghana.docx.
334 At the third session of the Global Platform, in 2011, the Government
of Bangladesh noted that the issue of framing a national disaster
management act remained under its active consideration. See http://pre
ventionweb net/files/globalplatform/bangladeshrevisedstatement.pdf.
26 Documents of the sixty-fifth session
120. The present section does not purport to deal with
an exhaustive list of national disaster risk reduction legislation,
but merely attempts to provide an overview of
a variety of approaches. Although the analysis below addresses
mainly legislation specifically targeted towards
disaster management, other types of legislation are also
relevant, including weather forecasting, insurance, land
use restriction and right-to-know legislation. The lastmentioned
legislation will be discussed briefly below. The
present section will summarize key elements of disaster
management laws from 14 geographically and economically
diverse States, some of which were identified in the
memorandum by the Secretariat,335 while others have been
chosen to diversify the sampling on the basis of geography
and economic development. The present section
will explore features of disaster legislation adopted by
Algeria,336 Bolivia (Plurinational State of),337 Colombia,338
Costa Rica,339 Cuba,340 India,341 Japan,342 Nicaragua,343
the Philippines,344 South Africa,345 Sri Lanka,346 the
United Kingdom,347 United States348 and Viet Nam.349
121. Before describing in some detail the key elements
of the legislation studied, the present section will explore
two common aspects of that legislation that demonstrate
States’ recognition of an obligation to take steps to address
disasters. First, the States do not vary widely in determining
the scope of the problem that they seek to address.
Principally, the legislation aims to protect against
both natural and man-made disasters. The major distinction
lies in the specificity of examples provided within the
text of the legislation. For instance, Sri Lanka includes in
its definition of natural or man-made catastrophes a long
list of potential qualifying incidents, including landslides,
335 A/CN.4/590 and Add.1–3 (footnote 78 above).
336 See footnote 306 above.
337 Plurinational State of Bolivia, Risk Reduction and Disaster Attention
Act (2000), Law No. 2140, available from www.preventionweb net
/files/30230_bol2140.pdf.
338 Colombia, Law No. 1523 of 24 April 2012 adopting the National
Policy on Disaster Risk Management and establishing the National
System of Disaster Risk Management and containing other provisions.
Shortly before the adoption of the law, the World Bank had released
a comprehensive study of the disaster risk management policies in
Colombia, in which it criticized the country’s framework, which may
have influenced the shape of the new legislation. See World Bank, Analysis
of Disaster Risk Management in Colombia: A Contribution to the
Creation of Public Policies.
339 Costa Rica, National Emergency and Risk Prevention Act (2011),
Law No. 8488 of 11 January 2006.
340 Farber and Chen, Disasters and the Law: Katrina and Beyond,
pp. 211–212.
341 See footnote 315 above.
342 Japan, Disaster Countermeasures Basic Act, Act No. 223 (1961,
revised 1997).
343 Nicaragua, Law No. 337 (2000), Law Establishing a National
System for the Prevention of, Mitigation of and Attention to Disasters.
344 The Philippines, Philippine Disaster Risk Reduction and Management
Act of 2010, Rep. Act No. 10121.
345 See footnote 326 above.
346 Sri Lanka, Disaster Management Act, No. 13 of 2005, 13 May
2005.
347 United Kingdom, Flood and Water Management Act (2010).
348 United States, Homeland Security Act of 2002, 6 U.S.C.,
paras. 311–321 (setting forth the mission, obligations and powers of the
Federal Emergency Management Agency).
349 Viet Nam, Ordinance of Prevention and Control of Floods and
Storms and Implementation Provisions, No. 09-L/CTN (1993).
cyclones, fires, chemical accidents, civil or internal strife,
nuclear disaster and oil spills.350 In Nicaragua, the law addresses
both natural and man-made disasters, but presents
a long list of natural disasters that could qualify without
providing a parallel list for man-made disasters.351 Other
States provide a broad definition of disaster without giving
more specific examples. For example, the legislation
in the Philippines defines “disaster” as “a serious disruption
of the functioning of a community”.352 A few laws
are specific to floods or storms: although these limitations
tend to be reflected in the title, they could potentially apply
to both natural and man-made floods.353 Several States
also incorporate a requirement that an event must cause
harm to people, property or the economy in order to be
truly considered a disaster.354 Read together, however,
these laws demonstrate a recognized obligation to craft
legislation addressing natural and man-made disasters.
122. A second element of disaster legislation that signals
States’ obligations is the two distinct methods by
which States indicate the object, purpose and goals of the
legislation. The more common approach simply declares
that the legislation is intended to set forth a framework
to manage disaster risks with an aim of preventing disasters,
mitigating harm and increasing a State’s disaster preparedness.
355 A handful of other States also supplement
350 Sri Lanka, Disaster Management Act, art. 25. See also Algeria,
Risk Prevention and Disaster Management Act (footnote 306 above),
arts. 2 and 10 (including earthquakes, floods, fires, industrial and
nuclear accidents and health epidemics); and Japan, Disaster Countermeasures
Basic Act (footnote 342 above), art. 2, which indicates that
“disaster” refers to a storm, flood, earthquake, tsunami or other unusual
natural event, a conflagration or explosion or any other damage
of similar extent.
351 Nicaragua, Law Establishing a National System for the Prevention
of, Mitigation of and Attention to Disasters (footnote 343 above),
art. 3.
352 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), para. 3. See also Plurinational State
of Bolivia, Risk Reduction and Disaster Attention Act (footnote 337
above), art. 1 (protecting against natural, technological and man-made
threats); United States, Homeland Security Act (footnote 348 above),
para. 313 (b) (2) (A) (protecting “against the risk of natural disasters,
acts of terrorism, and other man-made disasters, including catastrophic
incidents”); India, Disaster Management Act (footnote 315 above),
art. 2 (“disaster” refers to natural or man-made catastrophes or accidents
or negligence).
353 See Viet Nam, Ordinance of Prevention and Control of Floods
and Storms and Implementation Provisions (footnote 349 above), art. 2;
United Kingdom, Flood and Water Management Act (footnote 347
above), art. 1 (covering floods and coastal erosion, including dam
breaches, but not flooding where high rainfall has caused the sewage
system to overflow).
354 South Africa, Disaster Management Act No. 57 of 2002 (footnote
326 above), para. 1 (Disaster means “a progressive or sudden,
widespread or localized, natural or human-caused occurrence which
causes or threatens to cause, death, injury or disease, damage to property,
infrastructure or the environment, or disruption of the life of a
community, and which is of a magnitude that exceeds the ability of
those affected by the disaster to cope with its effects using only their
own resources”.); and Colombia, Law establishing the National System
of Disaster Risk Management (footnote 338 above), art. 4, para. 8
(declaring that disasters are the result of natural or unintentional manmade
occurrences that cause harm or loss to persons, property, the
economy or the environment).
355 See South Africa, Disaster Management Act (footnote 326
above), preamble (providing for “a disaster management policy that
focuses on preventing or reducing the risk of disasters, mitigating
the severity of disasters, emergency preparedness, rapid and effective
response to disasters and post-disaster recovery”); Viet Nam, Ordinance
of Prevention and Control of Floods and Storms and Implementation
Protection of persons in the event of disasters 27
such statements of purpose with more general goals, such
as protecting life,356 or motivations for the act, such as
prior experience with disasters.357 Still, for example, the
Indian National Disaster Management Act specifically
requires measures for the prevention of disasters, the integration
of mitigation measures and disaster preparedness
capacity-building.358 The United States adopts
a slightly more precise approach, suggesting that the
Federal Emergency Management Agency “develop
guidance” on “identifying potential hazards and assessing
risk and impacts; mitigating the impact of a
wide variety of hazards … managing necessary emergency
preparedness and response recourses”.359 These
statements of purpose identify prevention, mitigation
and preparedness as specific goals of the States.
For the sake of coherence, the present section will
refer to those three recognized components of the disaster
reduction framework in describing the particular
features of the States’ laws that are of relevance.
Provisions (footnote 349 above), preamble (setting out provisions for
activities conducted for the prevention, control and mitigation of the
consequences of floods and storms); United Kingdom, Flood and Water
Management Act (footnote 347 above), preamble (stating that the act
is for the management of risks in connection with flooding and coastal
erosion); United States, Homeland Security Act (footnote 348 above),
para. 313 (b) (2) (A) (leading “the nation’s efforts to prepare for, protect
against, respond to, recover from [disasters]”); India, Disaster Management
Act (footnote 315 above), preamble (providing the effective
management of disasters); Nicaragua, Law Establishing a National
System for the Prevention of, Mitigation of and Attention to Disasters
(footnote 343 above), art. 1 (stating that the law’s purpose is to establish
principles, norms and instruments necessary to create a system for
the disaster prevention risk reduction, mitigation and preparedness);
Plurinational State of Bolivia, Risk Reduction and Disaster Attention
Act (footnote 337 above), art. 1 (regulating all activities in the field
of the reduction of risks and warnings of disasters and emergencies,
establishing an institutional framework that reduces risks from disasters
and emergencies); Colombia, Law establishing the National System
of Disaster Risk Management (footnote 338 above), art. 1 (disaster
management, accomplished through a process of policies, strategies,
plans and regulations, is necessary for reduction of risk, management of
risk, and maintenance of the security, well-being and quality of life for
persons); and Algeria, Risk Prevention and Disaster Management Act
(footnote 306 above), art. 1 (enacting rules for the prevention of major
risks and management of disasters).
356 See, for example, United States, Homeland Security Act (footnote
348 above), para. 313 (b) (2) (mission is to reduce the loss of life
and property and protect the nation from all hazards). See also Japan,
Disaster Countermeasures Basic Act (footnote 342 above), art. 1 (“For
the purpose of protecting the national territory, the life and limb of the
citizens and their property, this act shall have for its aim the establishment
of a machinery … the formulation of disaster prevention plans …
ensuring an effective and organized administration of comprehensive
and systematic disaster prevention.”); the Philippines, Philippine Disaster
Risk Reduction and Management Act (footnote 344 above), para. 2
(identifying the State policy to uphold the right to life and strengthen
the country’s institutional capacity for disaster risk reduction); and Sri
Lanka, Disaster Management Act (footnote 346 above), preamble (citing
the necessity to protect human life and property of the people and
environment of Sri Lanka from disasters).
357 See, for example, Nicaragua, Law Establishing a National System
for the Prevention of, Mitigation of and Attention to Disasters
(footnote 343 above), preamble (referencing a handful of motivating
factors for adopting the law, among them the United Nations International
Decade for Natural Disaster Reduction, the climate phenomena
El Niño and La Niña, and the country’s history of earthquakes, volcanic
eruptions, floods, hurricanes and forest fires). See also Viet Nam, Ordinance
on Prevention and Control of Floods and Storms and Implementation
Provisions (footnote 349 above), preamble (citing the life and
property losses caused by floods and storms).
358 India, Disaster Management Act (footnote 315 above), art. 11.
359 United States, Homeland Security Act (footnote 348 above),
para. 321 l.
1. R isk prevention
123. Risk prevention concerns the actions that States
take to minimize the likelihood that a disaster will occur.
To that end, the legislation discussed shows three main
approaches to realizing this goal: risk assessment, information-
sharing and land use controls.
(a) Risk assessment
124. According to the Hyogo Framework for Action,
[t]he starting point for reducing disaster risk and for promoting a culture
of disaster resilience lies in the knowledge of the hazards and the
physical, social, economic and environmental vulnerabilities to disasters
that most societies face, and of the ways in which hazards and vulnerabilities
are changing in the short and long term, followed by action
taken on the basis of that knowledge.360
125. The Framework has as its second priority for action
to “identify, assess and monitor disaster risks and enhance
early warning” (para. 14 (2)). Key activities presented
within the framework are to:
(a) Develop, update periodically and widely disseminate risk
maps and related information to decision makers, the general public
and communities at risk in an appropriate format.
(b) Develop systems of indicators of disaster risk and vulnerability
at national and subnational scales that will enable decision makers to
assess the impact of disasters on social, economic and environmental
conditions and disseminate the results to decision makers, the public
and populations at risk.
(c) Record, analyse, summarize and disseminate statistical information
on disaster occurrence, impacts and losses, on a regular basis
through international, regional, national and local mechanisms.361
126. The Yokohama Strategy emphasizes as its first
principle that “risk assessment is a required step for the
adoption of adequate and successful disaster reduction
policies and measures”,362 while the General Assembly
has stressed the importance of risk assessment at both
the national and local levels in order to reduce vulnerability
to hazards and to address the adverse impacts of
disasters.363
127. Risk assessment at the national level is varied
owing to financial and scientific constraints, regional and
local needs and each State’s individual approach. In 2011,
12 of 15 respondents to a survey of States members of
the Group of 20 reported conducting national risk assessments,
while the remaining three reported that risk assessments
were in development and were to be implemented
as early as 2013.364 A review of national and local risk
assessments on the basis of hazard data and vulnerability
information reveals that this is the activity most widely
360 A/CONF.206/6, para. 17.
361 Ibid.
362 A/CONF.172/9, chap. I, resolution 1, annex I.
363 General Assembly resolutions 59/233 of 22 December 2004,
para. 3; 61/200 of 20 December 2006, para. 7; and 63/217 of 19 December
2008, para. 10.
364 See the G20/OECD methodological framework on disaster risk
assessment and risk financing. Available from www.oecd.org/gov/risk
/G20disasterriskmanagement.pdf.
28 Documents of the sixty-fifth session
practised as regards any prevention strategy in the Hyogo
Framework for Action.365
128. There is evidence that States seek assistance for
their national assessment of risk. At least 40 countries
have sought assistance from the Global Risk Identification
Programme of the United Nations Development
Programme to improve their knowledge of disaster risk
through national risk assessments and national risk information
systems.366 Twelve countries in Latin America
and South Asia have sought assistance from the Central
American Probabilistic Risk Assessment for technical assistance
in risk assessment.367
129. Of the 14 States selected for study, a number focus
on disaster risk identification, assessment and monitoring.
India, for example, requires State-level and district-level
plans to identify specific vulnerabilities and develop measures
to mitigate harm caused by that vulnerability.368 In furtherance
of these goals, the legislation suggests ensuring
that guidelines for prevention and mitigation are followed,
and examining the construction of buildings to confirm that
they are built to appropriate standards for the prevention
of disasters.369 Risk monitoring can take different forms,
but generally involves risk assessments and weather forecasting.
For example, the Japanese legislation includes a
provision that local governments should engage in weather
forecasting to help to prevent disasters caused by storms.370
In the Philippines, the legislation includes risk assessments
and risk knowledge-building.371 In Viet Nam, the ordinance
calls for weather forecasting and tracking and envisages
public-private partnership to realize these goals.372 Similarly,
in the Philippines, the legislation requires identifying,
assessing and prioritizing hazards and risks,373 with the aim
of consolidating local disaster risk information, including
natural hazards, vulnerabilities and climate change risks, to
maintain a local risk map.374
130. Some States have adopted routine weather monitoring
as a means of identifying potential risks. In the
United States, for example, the National Weather Service
initially began as a means of helping farmers, but its utility
365 See the compilation of national progress reports on the implementation
of the Hyogo Framework for Action (2009‒2011), Hyogo
Framework for Action priority 1, core indicator 1.1, available from
www.preventionweb net/english/hyogo/progress/documents/hfa
-report-priority1-1%282009-2011%29.pdf.
366 Achievements cited include the completion of a national risk
assessment and national hazard profile in the Lao People’s Democratic
Republic; the completion of urban risk assessments in Mexico, Mozambique
and Nepal; the establishment of a national disaster observatory
in Armenia; and the launch of a comprehensive risk assessment in
Mozambique.
367 Bangladesh, Bhutan, Chile, Colombia, Costa Rica, El Salvador,
India, Nepal, Pakistan, Panama, Peru and Sri Lanka.
368 India, Disaster Management Act (footnote 315 above), art. 21.
369 Ibid., art. 30.
370 Japan, Disaster Countermeasures Basic Act (footnote 342
above), art. 35.
371 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), paras. 3–4 and 12.
372 Viet Nam, Ordinance of Prevention and Control of Floods
and Storms and Implementation Provisions (footnote 349 above),
arts. 10–11.
373 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), para. 9.
374 Ibid., para. 12.
for disaster prevention has expanded.375 Weather forecasting
is undertaken by a number of entities in the United States,
including the National Weather Service, the Federal Aviation
Administration (which provides forecasting to airlines
and flights), the National Oceanic and Atmospheric
Administration (which uses its systems to implement the
country’s emergency alert system) and a number of statelevel
authorities, such as the Utah Department of Transportation
(which provides avalanche risk forecasts).376 In
addition, States are cooperating in the development of inter-national
weather warning systems under WMO.377
(b) Collection and dissemination of risk information
131. The collection and dissemination of risk information
can contribute to prevention in that it reduces vulnerabilities
and builds resilience to hazards. The Hyogo Framework
for Action explains this purpose:
Disasters can be substantially reduced if people are well informed
and motivated towards a culture of disaster prevention and resilience,
which in turn requires the collection, compilation and dissemination
of relevant knowledge in information of hazards, vulnerabilities and
capacities.378
As further explained in a report on the implementation of
the Framework:
Data collection and dissemination processes allow decision makers and
the public to understand a country’s exposure to various hazards and
its social, economic, environmental and physical vulnerabilities. Such
information, disseminated in an appropriate and timely manner, allows
communities to take effective action to reduce risk.379
132. Under the third priority of action in the Hyogo
Framework for Action, States are to undertake a variety of
activities towards this end. They include providing for information,
management and exchange through activities
such as disseminating “easily understandable information
on disaster risks and protection options”.380 The Yokohama
Strategy called for the collection and dissemination
of information “to improve public awareness of natural
disasters and the potential to reduce their impact”.381
133. Data collection and dissemination are part of policies
adopted at the national level. For example, China
has reported a robust strategy for making risk information
available, including through a countrywide public awareness
strategy.382 Other countries have established disaster
losses databases so that decision makers are aware of
local risks and vulnerabilities.383
134. Of the 14 States selected, the legislation adopted in
the United Kingdom requires the maintenance of a register
of vulnerable structures and suggests dissemination of
375 Baum, When Nature Strikes: Weather Disasters and the Law,
p. 3.
376 Ibid., pp. 9 and 14.
377 Ibid., p. 15.
378 A/CONF.206/6, para. 18.
379 UNISDR, “Implementing the Hyogo Framework for Action in
Europe: Advances and Challenges”, p. 36, available from www.unisdr
.org/files/19690_hfa11web.pdf.
380 A/CONF.206/6, para. 18 (i) (a).
381 A/CONF.172/9, chap. I, resolution 1, annex I, para. 12 (a) (i).
382 A/66/301, annex, para. 8.
383 Ibid., para. 24.
Protection of persons in the event of disasters 29
flood and erosion risk maps and information.384 In Algeria,
the law establishes that citizens have a right to information
on any vulnerabilities or risks that they face with regard
to disasters, the services that are available to them for risk
prevention and the identity of the actors in charge of disaster
management.385 Colombia has established a national
information system for disaster risk management, which
is specifically tasked with collecting and making available
information relating to standards, protocols, technological
solutions and processes that can reduce risk. Essentially,
this entity acts as the nation’s knowledge bank for issues
regarding disaster risk reduction.386
135. In some cases, industrial accidents have prompted
States to adopt stronger regulations that have, as a side
effect, reduced risks of man-made disasters through risk
identification and information sharing. In 1984, a chemical
gas leak in Bhopal, India, killed and injured thousands
of people who lived near a chemical plant.387 In
the aftermath of the incident, India passed laws regulating
industrial conduct. The Environment (Protection)
Act of 1986 prohibits industry, operations or processing
from emitting environmental pollutants in excess of prescribed
standards.388 The Manufacture, Storage and Import
of Hazardous Chemicals Rules of 1989 establish a
duty on pollution control authorities to routinely inspect
industrial establishments389 and require industrial establishments
to submit audit reports and emergency disaster
management plans.390
136. The Bhopal disaster also spurred the requirement
for environmental impact assessment statements, mandatory
statements that contain information on any potentially
adverse impacts on the environment, and proposed
disaster management plans to address such adverse impacts,
which are another means for risk identification and
information-sharing.391 Industrial regulations can also involve
right-to-know provisions, such as the Emergency
Planning and Community Right-to-Know Act, adopted
by the United States in 1986, which established a toxic
release inventory.392 This law requires public reporting of
the release of toxic chemicals.393 Other groups then use
this information to better understand risks, risk distribution
and risk reduction.394
(c) Land use controls
137. Land use controls are methods by which States
seek to prevent either particular activities in specific
384 United Kingdom, Flood and Water Management Act (footnote
347 above), art. 21.
385 Algeria, Risk Prevention and Disaster Management Act (footnote
306 above), art. 11.
386 Colombia, National System for the Management of Risks and
Disasters Act (footnote 354 above), art. 45.
387 Francis, “Legal aspects of disaster management and rehabilitation:
the recent Indian experience of the tsunami disaster”.
388 Ibid.
389 Ibid., pp. 246–247.
390 Ibid.
391 Ibid., p. 247.
392 Fortun, “Environmental right-to-know and the transmutations of
law”.
393 Ibid.
394 Ibid.
vulnerable areas or all types of access to a particular
area. The extent of the control would probably depend
on the probability and severity of the risk posed in a particular
area. Algeria, for example, identifies its major
objectives as improving risk awareness and risk monitoring,
taking into account risks in construction, and putting
in place plans to manage all types of disasters.395
Before indicating a number of specific actions that the
State is permitted to adopt within its disaster management
plans, the legislation cites five underlying principles
that inform the State’s policies: the precautionary
principle, the principle of co-existence, the principle
of preventive action and swift correction, the principle
of participation, and the principle of the integration of
new and innovative techniques.396 It proposes a prohibition
on construction and habitation within zones at risk
of earthquakes or floods.397 Similarly, Costa Rica can
declare restrictions on land uses in order to avoid disasters.
398 The United Kingdom also grants itself broad
powers to restrict or mandate certain uses of land.399
138. India adopted the Coastal Regulation Zone Notification
in 1991, which controlled developmental activities
within 500 metres of the high tide line as a means
of mitigating potential harm caused by tsunamis.400 Land
use controls have also been effective in Cuba, where the
Institute of Physical Planning establishes regulations to
require that certain construction projects meet minimum
safety requirements.401 These regulations can also prohibit
construction entirely in certain locations.402 The Government
of Cuba also promotes urbanization by ensuring that
rural populations have access to essential government services;
by reducing the size of the urban population, disaster
risks that are accentuated by overpopulation can be
prevented.403 By implementing these land use controls,
States are attempting to reduce the population’s exposure
to potential hazards and limit any harm that may result
from a disaster in that area. In some cases, however,
land use controls are less effective. For example, in the
United States, certain government restrictions on land
usage can be prohibited.404
139. Environmental regulations have also been used in
the United States and are another type of land use restriction.
The destruction of wetlands in Louisiana by
industrial development drastically reduced the region’s
natural ability to withstand hurricanes; however, the
395 Algeria, Risk Prevention and Disaster Management Act (footnote
306 above), art. 7.
396 Ibid., art. 8.
397 Ibid., art. 19.
398 Costa Rica, National Emergency and Risk Prevention Act (footnote
339 above), art. 34.
399 United Kingdom, Flood and Water Management Act (footnote
347 above), art. 3.
400 Francis, “Legal aspects of disaster management and rehabilitation
...” (footnote 387 above), pp. 247–248.
401 Farber and Chen, Disasters and the Law: Katrina and Beyond,
p. 218.
402 Ibid.
403 Ibid.
404 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
(holding that a South Carolina statute that prohibited a landowner from
building permanent habitable structures on islands off the coast of
South Carolina constituted a taking that required just compensation).
30 Documents of the sixty-fifth session
Government is able to take steps to control the development
of wetland areas under the Clean Water Act.405 By
protecting and regenerating wetlands, the State hopes,
among other goals, to reduce harm caused by storms by
taking advantage of the natural buffer that these wetlands
provide.406
140. Although a number of approaches can constitute
risk prevention, several disaster risk reduction acts include
at least some specific policy suggestions in this area.
2. M itigation of harm
141. Mitigation of harm involves the steps that States
follow to reduce the amount of harm caused by a disaster.
This approach can take various forms, including requiring
buildings in at-risk areas to conform to certain safety
standards or the building of dykes or levees.
(a) Construction standards
142. The Algerian law proposes the mandating of construction
standards in various disaster scenarios.407 In
Viet Nam, the ordinance authorizes both the enforcement
of construction standards and the building of facilities
such as dykes.408 United Kingdom law identifies a number
of examples of State actions that could be taken in
the course of flood or coastal erosion risk management,
namely removing or altering buildings and using the
State’s law-making power to permit, require, restrict or
prevent certain activities.409 In addition, the State has a
duty to maintain a register of structures, along with information
regarding the owners and the state of repair of
the structures, which are likely to have a significant effect
on a flood risk area.410 This law amends the Building
Act of 1984 in order to include a requirement that people
working on erecting, fitting or equipping a building take
measures to increase the structure’s flood resistance or
resilience.411
(b) Insurance
143. Insurance systems are another way in which
States seek to mitigate harm from disaster. In 1991,
India adopted the Public Liability Insurance Act, which
required industries to take out insurance policies to discharge
any liabilities that might arise from their activities,
such as any potential environmental harm.412 The
United States has adopted a national flood insurance programme,
which is designed to reduce the likelihood that
people will live in flood zones, thereby reducing the risk
405 Farber and Chen (footnote 401 above), pp. 211–212.
406 Ibid.
407 Algeria, Risk Prevention and Disaster Management Act (footnote
306 above), art. 23.
408 Viet Nam, Ordinance of Prevention and Control of Floods
and Storms and Implementation Provisions (footnote 349 above),
arts. 34–35.
409 United Kingdom, Flood and Water Management Act (footnote
347 above), art. 3.
410 Ibid., art. 21.
411 Ibid., art. 40.
412 Francis, “Legal aspects of disaster management and rehabilitation
...” (footnote 387 above), p. 248.
of disaster.413 The programme encourages individuals
to move away from flood zones by requiring property
owners to obtain flood insurance and increasing the cost
of insurance premiums each time the owner makes flood
insurance claims.414 California has also implemented a
state-specific earthquake insurance regime that operates
in a similar manner.415
144. Although fairly few disaster risk reduction acts
specify particular measures that States should or must
take with regard to the mitigation of harm, all the plans
include some mention of harm as a goal of the legislation,
leaving the specific methods used up to the relevant
authorities charged with promulgating further regulations
or legislation.
3. Preparedness
145. Disaster preparedness concerns the steps that
States have taken in advance of a disaster, as a matter of
course, that facilitate the provision of aid once a disaster
has occurred. The South African Disaster Management
Act of 2002 contains a detailed definition: “emergency
preparedness means a state of readiness which enables
organs of State and other institutions involved in disaster
management, the private sector, communities and individuals
to mobilize, organize, and provide relief measures to
deal with an impending or current disaster or the effects
of a disaster”.416 One of the most common ways in which
States have approached disaster preparedness is by establishing
an institutional hierarchy of agencies or actors and
defining the roles and responsibilities of those actors.
(a) Institutional framework
146. Many States’ laws either include a thorough description
of a new institution established specifically for
the purpose of promoting disaster risk reduction policies,
including disaster preparedness,417 or entrust already existing
political or non-governmental actors with additional
responsibilities.418 Often, these new hierarchies are
diverse, including members from a wide variety of government
ministries and, in some cases, non-governmental
actors such as businesses and labour organizations. Given
the emphasis on disaster management in the selected legislation,
it is unsurprising that a significant portion of
almost every State’s law is devoted to establishing, staffing
and defining the roles of new government institutions
devoted specifically to addressing disasters. Of the
States surveyed, Algeria is alone in not defining which
413 Farber and Chen, Disasters and the Law: Katrina and Beyond,
p. 228.
414 Ibid.
415 Moréteau, “Catastrophic harm in United States law: liability and
insurance”, pp. 69 and 80.
416 South Africa, Disaster Management Act (footnote 326 above),
art. 1.
417 See, for example, the National Disaster Management Authority
of India, created by art. 3 of the Disaster Management Act (footnote 315
above); and the National Council for Disaster Reduction and Response
of the Plurinational State of Bolivia, by art. 8 of the Risk Reduction and
Disaster Attention Act (footnote 337 above).
418 See, for example, Viet Nam, Ordinance of Prevention and Control
of Floods and Storms and Implementation Provisions (footnote 349
above), art. 6.
Protection of persons in the event of disasters 31
portion of the Government is responsible for crafting and
carrying out disaster risk reduction or disaster management
policies.419 Most States not only establish a national
institution and national disaster management plan, but
also create decentralized parallel structures at other levels
of government.420 The Indian Disaster Management
Act, for example, creates a national disaster management
authority,421 which is tasked with preparing a national plan
for disaster management.422 It also establishes State423 and
district424 institutions tasked with implementing the national
plan at the local level.
147. These institutions, in particular at the national
level, tend to comprise a wide variety of government
ministers and thus incorporate a broad range of subjectmatter
expertise.425 In the Philippines, the National Disaster
Risk Reduction and Management Council, which is
headed by the Secretary of the Department of National
Defence, also includes the secretaries of the Department
of the Interior and Local Government, the Department
of Social Welfare and Development, the Department of
Science and Technology, the National Economic and
Development Authority, the Department of Health, the
Department of Environment and Natural Resources,
the Department of Agriculture and 36 other members,
including additional government bodies, regional and
local representatives and private sector and civil society
representatives.426
148. Several States decided that the Head of Government
should be the principal agent of disaster management
institutions, signalling the importance that they place on
disaster management.427 Sri Lanka extends this principle
and includes not only the President, but also the Prime
Minister and the Leader of the Opposition as the leaders
of the National Council for Disaster Management.428
419 See Algeria, Risk Prevention and Disaster Management Act
(footnote 306 above), arts. 50 and 52 (calling for national, regional and
municipal plans for the management of disasters, but not specifying the
plan’s structure, composition or key components).
420 See, for example, Plurinational State of Bolivia, Risk Reduction
and Disaster Attention Act (footnote 337 above), arts. 11–12; Viet Nam,
Decree No. 32-CP (20 May 1996), arts. 3 and 7; the Philippines, Philippine
Disaster Risk Reduction and Management Act (footnote 344
above), paras. 10–11; South Africa, Disaster Management Act (footnote
326 above), paras. 22–25 and 43–50; Japan, Disaster Countermeasures
Basic Act (footnote 342 above), arts. 3–5; and United States,
Homeland Security Act (footnote 348 above), para. 317.
421 India, Disaster Management Act (see footnote 315 above), art. 3.
422 Ibid., art. 10.
423 Ibid., art. 14.
424 Ibid., art. 25.
425 See, for example, Plurinational State of Bolivia, Risk Reduction
and Disaster Attention Act (footnote 337 above), art. 8; Viet Nam,
Decree No. 32-CP (footnote 420 above), art. 11; South Africa, Disaster
Management Act (footnote 326 above), para. 5; and Nicaragua, Law
Establishing a National System for the Prevention of, Mitigation of and
Attention to Disasters (footnote 343 above), art. 10.
426 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), para. 5.
427 See, for example, Japan, Disaster Countermeasures Basic Act
(footnote 342 above), art. 11; Nicaragua, Law Establishing a National
System for the Prevention of, Mitigation of and Attention to Disasters
(footnote 343 above), art. 10; Colombia, National System for the Management
of Risks and Disasters Act (footnote 354 above), art. 9; and
Plurinational State of Bolivia, Risk Reduction and Disaster Attention
Act (footnote 337 above), art. 8.
428 Sri Lanka, Disaster Management Act (footnote 346 above), art. 3.
149. Lastly, disaster management legislation also typically
includes obligations that the institutions and disaster
management plans are to undertake.429 Colombia, for example,
requires that the national plan develop a system for
identifying and prioritizing risks, monitoring risks, communicating
the existence of risks to affected populations
and taking proactive steps to prevent or reduce the harm
caused by disasters.430
(b) Funding
150. Legislation requires funding in order to allow the
Government to fulfil the obligations that it has created.
Within disaster management laws, States, for the most
part, include some provisions relating to funding. Most
States, however, do not include specific appropriations
in the acts. The Algerian act contains no provisions relating
to funding. Several laws establish a fund to be used
for disaster management, including risk reduction.431 In
some States, such funds are authorized, but not mandated.
432 Lastly, the United States,433 the Philippines434 and
Sri Lanka435 each have acts that appropriate specific levels
of funding to be used for disaster management. These
funding provisions enable States to engage in the disaster
429 See, for example, Plurinational State of Bolivia, Risk Reduction and
Disaster Attention Act (footnote 337 above), art. 5; United States, Homeland
Security Act (footnote 348 above), para. 318; India, Disaster Management
Act (footnote 315 above), art. 10; Japan, Disaster Countermeasures
Basic Act (footnote 342 above), arts. 3–5; the Philippines, Philippine Disaster
Risk Reduction and Management Act (footnote 344 above), para. 6;
Sri Lanka, Disaster Management Act (footnote 346 above), art. 4; South
Africa, Disaster Management Act (footnote 326 above), para. 4; Nicaragua,
Law Establishing a National System for the Prevention of, Mitigation of
and Attention to Disasters (footnote 343 above), art. 7; and United Kingdom,
Flood and Water Management Act (footnote 347 above), art. 7.
430 Colombia, National System for the Management of Risks and
Disasters Act (footnote 354 above), art. 6.
431 Plurinational State of Bolivia, Risk Reduction and Disaster
Attention Act (footnote 337 above), art. 21 (establishing a fund for
the reduction of risks and economic recovery); Nicaragua, Law Establishing
a National System for the Prevention of, Mitigation of and
Attention to Disasters (footnote 343 above), arts. 12–13 (establishing
a national fund for disasters, which is to comprise funds received
from the national budget and domestic and international donations);
and Colombia, National System for the Management of Risks and
Disasters Act (footnote 354 above), arts. 46–54 (renaming the National
Fund for Calamities the National Fund for the Management
of Disaster Risks and elaborating on the procedures that relate to the
management of the Fund).
432 Viet Nam, Ordinance of Prevention and Control of Floods and
Storms and Implementation Provisions (footnote 349 above), art. 27;
India, Disaster Management Act (footnote 315 above), arts. 46–49;
Japan, Disaster Countermeasures Basic Act (footnote 342 above),
arts. 94 and 101; South Africa, Disaster Management Act (footnote 326
above), paras. 56–57; United Kingdom, Flood and Water Management
Act (footnote 347 above), art. 16.
433 United States, Homeland Security Act (footnote 348 above),
para. 321 j (authorizing the appropriation of more than $5.5 billion for
the period 2004–2013).
434 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), para. 21 (the local disaster risk
reduction and management fund is funded by no less than 5 per cent of
the estimated revenue from regular sources (i.e. tax revenues), to support
disaster risk management activities, with 30 per cent of this Fund
allocated as a quick response fund). See also ibid., para. 23 (allocating
1 billion pesos to the Office of Civil Defence to carry out disaster risk
reduction activities).
435 Sri Lanka, Disaster Management Act (footnote 346 above),
art. 16 (granting the National Council for Disaster Management starting
capital of 10 million rupees).
32 Documents of the sixty-fifth session
risk reduction policies envisaged without requiring a second
set of processes for budgeting.
(c) Community preparedness and education
151. Disaster preparedness involves community-level
preparedness. Most States accomplish this goal through
education and awareness-raising campaigns mandated by
their disaster risk reduction acts. Japan, for example, specifically
identifies the Japanese Red Cross Society as an
organization with a special role regarding community preparedness.
436 The Philippines, by contrast, calls for disaster
risk management to be introduced during secondary
and tertiary education and mandates disaster risk management
training and education for all public employees.437
152. The Indian act further recommends identifying
buildings that can be used as relief centres in the event of
a disaster, stockpiling food, providing information to State
authorities, encouraging non-governmental organization
and civil society involvement and ensuring that communications
systems are in order (such as by performing
drills periodically), among other tasks.438 Japan mandates
that local disaster plans provide for emergency provision,
stockpiling and distribution and outline the operations
relating to disaster prevention.439 Meanwhile, Viet Nam
focuses on education, establishing education programmes
to promote common knowledge about storms and floods.440
The United Kingdom suggests making arrangements for
financial support of individuals and providing education
and guidance on risk management.441 These States typically
include only a couple of specific recommendations or
requirements relating to the structure or content of such
education, however.
(d) Early warning
153. Early warning was recognized by the General Assembly
as an important aspect of disaster prevention as
early as 1971.442 It has been included in nearly all subsequent
General Assembly resolutions dealing with the subject.
443 The Economic and Social Council emphasized that
early warning should be a “key element” within regional,
national and local prevention efforts.444
154. As noted in the Yokohama Strategy, “early warning
of impending disasters and their effective dissemination …
436 Japan, Disaster Countermeasures Basic Act (footnote 342
above), art. 2.
437 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), para. 4.
438 India, Disaster Management Act (footnote 315 above), art. 30.
439 Japan, Disaster Countermeasures Basic Act (footnote 342
above), art. 42.
440 Viet Nam, Decree No. 32-CP (footnote 420 above), art. 11.
441 United Kingdom, Flood and Water Management Act (footnote
347 above), art. 3.
442 In paragraph 8 of its resolution 2816 (XXVI) of 14 December
1971, the General Assembly invited potential recipient Governments to
improve national disaster warning systems.
443 See, for example, General Assembly resolutions 46/182 of
19 December 1991; 59/233 of 22 December 2004, para. 7; 60/196 of
22 December 2005, para. 8; 61/200 of 20 December 2006, para. 9; and
63/217 of 19 December 2008, para. 12.
444 Economic and Social Council resolution 1999/63.
are key factors to successful disaster prevention”.445 Early
warning has been seen as an essential modality of prevention
at the national, regional and international levels.446
155. The Hyogo Framework for Action is most explicit
when it comes to early warning, naming it within its second
priority for action, and suggesting the following key
activities on which States might draw:
(d) Develop early warning systems that are people centred, in particular
systems whose warnings are timely and understandable to those
at risk, which take into account the demographic, gender, cultural and
livelihood characteristics of the target audiences, including guidance
on how to act upon warnings, and that support effective operation by
disaster managers and other decision makers.
(e) Establish, periodically review, and maintain information systems
as part of early warning systems with a view to ensuring that rapid
and coordinated action is taken in cases of alert/emergency.
…
(g) Implement the outcome of the Second International Conference
on Early Warning held in Bonn, Germany, in 2003, including through
the strengthening of coordination and cooperation among all relevant
sectors and actors in the early warning chain in order to achieve fully
effective early warning systems.
(h) Implement the outcome of the Mauritius Strategy for the further
implementation of the Barbados Programme of Action for the sustainable
development of small island developing States, including by
establishing and strengthening effective early warning systems as well
as other mitigation and response measures.447
156. A review of existing national early warning systems
in place with outreach to communities includes the
following States or areas: Anguilla, Antigua and Barbuda,
Armenia, Australia, Bangladesh, Bolivia (Plurinational
State of), Botswana, British Virgin Islands, Canada, Cape
Verde, Cayman Islands, Chile, Colombia, Cook Islands,
Costa Rica, Cuba, Czech Republic, Dominican Republic,
Ecuador, El Salvador, Fiji, Finland, Georgia, Germany,
Ghana, Guatemala, Honduras, India, Indonesia, Italy, Jamaica,
Japan, Kenya, Lao People’s Democratic Republic,
Lesotho, Madagascar, Malaysia, Maldives, Marshall
Islands, Mauritius, Mexico, Mongolia, Morocco, Mozambique,
New Zealand, Nicaragua, Nigeria, Norway,
Panama, Paraguay, Peru, Poland, Saint Kitts and Nevis,
Saint Lucia, Senegal, Solomon Islands, Sri Lanka, Sweden,
Switzerland, Syrian Arab Republic, the former Yugoslav
Republic of Macedonia, Turks and Caicos Islands,
United States, Vanuatu, Venezuela (Bolivarian Republic
of) and Zambia.448
157. Of the 14 States selected, Algeria,449 the Philippines450
and India451 each specifically provide for early
445 A/CONF.172/9, chap. I, resolution 1, annex I.
446 See, for example, General Assembly resolution 36/225 of 17 December
1981.
447 A/CONF.206/6, para. 17 (ii).
448 See the compilation of national progress reports on the implementation
of the Hyogo Framework for Action (2009–2011), Hyogo
Framework for Action priority 2, core indicator 2.3, available from www
.preventionweb net/english/hyogo/progress/documents/hfa-report-pri
ority2-3%282009-2011%29.pdf .
449 Algeria, Risk Prevention and Disaster Management Act (footnote
306 above), art. 17.
450 The Philippines, Philippine Disaster Risk Reduction and Management
Act (footnote 344 above), para. 4.
451 India, Disaster Management Act (footnote 315 above), art. 30.
Protection of persons in the event of disasters 33
warning systems, while a number of others allude to them
by mentioning information sharing or prompt communication
of threats. In South Africa, the State must collect
and disseminate information on phenomena that cause or
aggravate disasters, risk factors, early warning systems
and emergency response resources.452 Nicaragua specifies
the details of the State’s three-tiered risk-level system as
part of its early warning system.453
158. Early warning is, of course, not the sole province
of national policy or legislation. References to that measure
are found in multilateral and bilateral agreements and
in decisions of judicial organs. Given its practical importance,
it is deemed useful to give some examples of
the manner in which early warning is dealt with by those
three other sources.
159. According to the ASEAN Agreement on Disaster
Management and Emergency Response, States should not
only establish early warning systems, but also maintain and
review them.454 Part of the review could be a determination
of the appropriateness of the warning system based
on regular risk assessment.455 An early warning system
should have a mechanism to deliver information to people
in a timely way.456 An effort should be made to notify and
educate persons within a State’s territory or control on how
to respond to the established early warning system.457 The
General Assembly has referred to such early warning systems
as “people-centred”.458 As appropriate, States should
also develop a mechanism of early warning to notify other
States of the transboundary effects of hazards.459
160. Bilateral agreements have also provided for early
warning systems. For example, an agreement between the
United Kingdom and the United States concluded in 1958
provided for elements to improve early warning for the
452 South Africa, Disaster Management Act (footnote 326 above),
para. 17.
453 Nicaragua, Law Establishing a National System for the Prevention
of, Mitigation of and Attention to Disasters (footnote 343 above),
arts. 26‒31.
454 Art. 7, para. 1.
455 Ibid.
456 Ibid.
457 Ibid.
458 General Assembly resolutions 60/196 of 22 December 2005,
para. 8; 61/200 of 20 December 2006, para. 9; and 63/217 of 19 December
2008, para. 12.
459 ASEAN Agreement on Disaster Management and Emergency
Response, art. 7, para. 2.
purpose of achieving “greater accuracy and timeliness in
forecasts of hurricanes and in warning of accompanying
destructive winds, tides, and floods”.460 Domestic practice
as regards early warning is widely developed and mostly
adapted to individual requirements and risk factors.461
161. The European Court of Human Rights has upheld
the obligation to establish early warning systems. In Budayeva,
the Court held that “the authorities’ omission in
ensuring the functioning of the early warning system was
not justified”.462 Furthermore, the Court found there was
a “causal link between the serious administrative flaws”,
including the lack of early warning, and the death of and
injuries to the petitioners.463 In addition, although not specifically
using the term “early warning”, the Court also
found that, under article 2 of the European Convention
on Human Rights (right to life), States had “a positive
obligation to … adequately inform the public about any
life-threatening emergency”.464
E. Proposals for draft articles
162. In the light of the foregoing, the Special Rapporteur
proposes the following two draft articles:
“Draft article 16. Duty to prevent
“1. States shall undertake to reduce the risk of
disasters by adopting appropriate measures to ensure
that responsibilities and accountability mechanisms be
defined and institutional arrangements be established, in
order to prevent, mitigate and prepare for such disasters.
“2. Appropriate measures shall include, in particular,
the conduct of multi-hazard risk assessments,
the collection and dissemination of loss and risk information
and the installation and operation of early
warning systems.”
“Draft article 5 ter. Cooperation for disaster risk
reduction
“Cooperation shall extend to the taking of measures
intended to reduce the risk of disasters.”
460 See footnote 215 above.
461 UNISDR, Early Warning Practices Can Save Lives: Selected Examples:
Good Practices and Lessons Learned.
462 Budayeva (footnote 122 above), para. 155.
463 Ibid., para. 158.
464 Ibid., para. 131.
24
A. Introduction
38. At its fifty-ninth session (2007), the Commission
decided to include the topic “Protection of persons in
the event of disasters” in its programme of work and to
appoint Mr. Eduardo Valencia-Ospina as Special Rapporteur
for the topic.12 In paragraph 7 of its resolution 62/66
of 6 December 2007, the General Assembly took note of
the decision of the Commission to include the topic in its
programme of work.
39. From its sixtieth (2008) to sixty-sixth (2014) sessions,
the Commission considered the topic on the basis
of seven successive reports submitted by the Special Rapporteur.
13 The Commission also had before it a memorandum
by the Secretariat14 and a set of written replies
submitted by the Office for the Coordination of Humanitarian
Affairs (OCHA) and the International Federation of
Red Cross and Red Crescent Societies (IFRC) to the questions
addressed to them by the Commission in 2008.15
40. At its sixty-sixth session (2014), the Commission
adopted, on first reading, a set of 21 draft articles on the
protection of persons in the event of disasters, together
with commentaries thereto.16 It decided, in accordance
with articles 16 to 21 of its statute, to transmit the draft
articles, through the Secretary-General, to Governments,
competent international organizations, the ICRC and the
IFRC for comments and observations.17
B. Consideration of the topic at the present session
41. At the present session, the Commission had before it
the eighth report of the Special Rapporteur (A/CN.4/697),
12 Yearbook … 2007, vol. II (Part Two), p. 98, para. 375. At its fiftyeighth
session (2006), the Commission endorsed the recommendation
of the Planning Group to include, inter alia, the topic “Protection
of persons in the event of disasters” in the long-term programme of
work of the Commission (Yearbook … 2006, vol. II (Part Two), p. 185,
para. 257). A brief syllabus on the topic, prepared by the secretariat, was
annexed to the report of the Commission in 2006 (ibid., annex III). In
its resolution 61/34 of 4 December 2006, the General Assembly took
note of the Commission’s decision to include the topic in its long-term
programme of work.
13 Yearbook … 2008, vol. II (Part One), document A/CN.4/598
(preliminary report); Yearbook … 2009, vol. II (Part One), document
A/CN.4/615 and Corr.1 (second report); Yearbook … 2010, vol. II
(Part One), document A/CN.4/629 (third report); Yearbook … 2011,
vol. II (Part One), document A/CN.4/643 and Corr.1 (fourth report);
Yearbook … 2012, vol. II (Part One), document A/CN.4/652 (fifth report);
Yearbook … 2013, vol. II (Part One), document A/CN.4/662 (sixth
report) ; and Yearbook … 2014, vol. II (Part One), document A/CN.4/668
and Corr.1 and Add.1 (seventh report).
14 A/CN.4/590 and Add.1–3 (available from the Commission’s website,
documents of the sixtieth session). The final text will be published
as an addendum to Yearbook … 2008, vol. II (Part One).
15 Yearbook … 2008, vol. II (Part Two), p. 16, paras. 32–33.
16 Yearbook … 2014, vol. II (Part Two), pp. 61 et seq., paras. 55–56.
17 Ibid., paras. 51–53.
as well as comments and observations received from
Governments, international organizations and other entities
(A/CN.4/696 and Add.1).
42. The Commission considered the eighth report of the
Special Rapporteur at its 3291st to 3296th meetings, from
2 to 11 May 2016. At its 3296th meeting, held on 11 May
2016, the Commission referred the draft preamble, proposed
by the Special Rapporteur in his eighth report, and
draft articles 1 to 21 to the Drafting Committee, with the
instruction that the Drafting Committee commence the
second reading of the draft articles taking into account the
comments of Governments, international organizations
and other entities, the proposals of the Special Rapporteur
and the debate in plenary on the Special Rapporteur’s
eighth report.
43. The Commission considered the report of the Drafting
Committee (A/CN.4/L.871) at its 3310th meeting, held
on 3 June 2016, and adopted the entire set of draft articles
on the protection of persons in the event of disasters, on
second reading, at the same meeting (sect. E.1 below).
44. At its 3332nd to 3335th meetings, from 2 to 4 August
2016, the Commission adopted the commentaries to
the aforementioned draft articles (sect. E.2 below).
45. In accordance with its statute, the Commission submits
the draft articles to the General Assembly, together
with the recommendation set out below.
C. Recommendation of the Commission
46. At its 3335th meeting, held on 4 August 2016, the
Commission decided, in accordance with article 23 of its
statute, to recommend to the General Assembly the elaboration
of a convention on the basis of the draft articles
on the protection of persons in the event of disasters.
D. Tribute to the Special Rapporteur
47. At its 3335th meeting, held on 4 August 2016, the
Commission, after adopting the draft articles on the protection
of persons in the event of disasters, adopted the
following resolution by acclamation:
The International Law Commission,
Having adopted the draft articles on the protection of persons in the
event of disasters,
Expresses to the Special Rapporteur, Mr. Eduardo Valencia-Ospina,
its deep appreciation and warm congratulations for the outstanding contribution
he has made to the preparation of the draft articles through his
tireless efforts and devoted work, and for the results achieved in the
elaboration of draft articles on the protection of persons in the event
of disasters.
Chapter IV
PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
Protection of persons in the event of disasters 25
E. Text of the draft articles on the protection
of persons in the event of disasters
1. T ext of the draft articles
48. The text of the draft articles adopted by the Commission,
on second reading, at its sixty-eighth session is
reproduced below.
PROTECTION OF PERSONS
IN THE EVENT OF DISASTERS
Preamble
Bearing in mind Article 13, paragraph 1 (a), of the Charter of
the United Nations, which provides that the General Assembly
shall initiate studies and make recommendations for the purpose
of encouraging the progressive development of international law
and its codification,
Considering the frequency and severity of natural and humanmade
disasters and their short-term and long-term damaging
impact,
Fully aware of the essential needs of persons affected by disasters,
and conscious that the rights of those persons must be respected
in such circumstances,
Mindful of the fundamental value of solidarity in international
relations and the importance of strengthening international cooperation
in respect of all phases of a disaster,
Stressing the principle of the sovereignty of States and, consequently,
reaffirming the primary role of the State affected by a disaster
in providing disaster relief assistance,
Article 1. Scope
The present draft articles apply to the protection of persons in
the event of disasters.
Article 2. Purpose
The purpose of the present draft articles is 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.
Article 3. Use of terms
For the purposes of the present draft articles:
(a) “disaster” means 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;
(b) “affected State” means a State in whose territory, or in territory
under whose jurisdiction or control, a disaster takes place;
(c) “assisting State” means a State providing assistance to an
affected State with its consent;
(d) “other assisting actor” means a competent intergovernmental
organization, or a relevant non-governmental organization
or entity, providing assistance to an affected State with its consent;
(e) “external assistance” means relief personnel, equipment
and goods, and services provided to an affected State by an assisting
State or other assisting actor for disaster relief assistance;
(f ) “relief personnel” means civilian or military personnel
sent by an assisting State or other assisting actor for the purpose of
providing disaster relief assistance;
(g) “equipment and goods” means supplies, tools, machines,
specially trained animals, foodstuffs, drinking water, medical supplies,
means of shelter, clothing, bedding, vehicles, telecommunications
equipment, and other objects for disaster relief assistance.
Article 4. Human dignity
The inherent dignity of the human person shall be respected
and protected in the event of disasters.
Article 5. Human rights
Persons affected by disasters are entitled to the respect for and
protection of their human rights in accordance with international
law.
Article 6. Humanitarian principles
Response to disasters shall take place in accordance with the
principles of humanity, neutrality and impartiality, and on the
basis of non-discrimination, while taking into account the needs of
the particularly vulnerable.
Article 7. Duty to cooperate
In the application of the present draft articles, States shall, as
appropriate, cooperate among themselves, with the United Nations,
with the components of the International Red Cross and Red
Crescent Movement, and with other assisting actors.
Article 8. Forms of cooperation in the response to disasters
Cooperation in the response to disasters includes humanitarian
assistance, coordination of international relief actions and communications,
and making available relief personnel, equipment and
goods, and scientific, medical and technical resources.
Article 9. Reduction of the risk of disasters
1. Each State shall reduce the risk of disasters by taking appropriate
measures, including through legislation and regulations,
to prevent, mitigate, and prepare for disasters.
2. Disaster risk reduction measures include the conduct of risk
assessments, the collection and dissemination of risk and past loss
information, and the installation and operation of early warning
systems.
Article 10. Role of the affected State
1. The affected State has the duty to ensure the protection of
persons and provision of disaster relief assistance in its territory, or
in territory under its jurisdiction or control.
2. The affected State has the primary role in the direction, control,
coordination and supervision of such relief assistance.
Article 11. Duty of the affected State to seek external assistance
To the extent that a disaster manifestly exceeds its national
response capacity, the affected State has the duty to seek assistance
from, as appropriate, other States, the United Nations, and other
potential assisting actors.
Article 12. Offers of external assistance
1. In the event of disasters, States, the United Nations, and
other potential assisting actors may offer assistance to the affected
State.
2. When external assistance is sought by an affected State by
means of a request addressed to another State, the United Nations,
or other potential assisting actor, the addressee shall expeditiously
give due consideration to the request and inform the affected State
of its reply.
Article 13. Consent of the affected State to external assistance
1. The provision of external assistance requires the consent of
the affected State.
2. Consent to external assistance shall not be withheld
arbitrarily.
26 Report of the International Law Commission on the work of its sixty-eighth session
3. When an offer of external assistance is made in accordance
with the present draft articles, the affected State shall, whenever
possible, make known its decision regarding the offer in a timely
manner.
Article 14. Conditions on the provision of external assistance
The affected State may place conditions on the provision of
external assistance. Such conditions shall be in accordance with
the present draft articles, applicable rules of international law and
the national law of the affected State. Conditions shall take into
account the identified needs of the persons affected by disasters and
the quality of the assistance. When formulating conditions, the affected
State shall indicate the scope and type of assistance sought.
Article 15. Facilitation of external assistance
1. The affected State shall take the necessary measures, within
its national law, to facilitate the prompt and effective provision of
external assistance, in particular regarding:
(a) relief personnel, in fields such as privileges and immunities,
visa and entry requirements, work permits, and freedom of
movement; and
(b) equipment and goods, in fields such as customs requirements
and tariffs, taxation, transport, and the disposal thereof.
2. The affected State shall ensure that its relevant legislation
and regulations are readily accessible, to facilitate compliance with
national law.
Article 16. Protection of relief personnel, equipment and goods
The affected State shall take the appropriate measures to ensure
the protection of relief personnel and of equipment and goods
present in its territory, or in territory under its jurisdiction or control,
for the purpose of providing external assistance.
Article 17. Termination of external assistance
The affected State, the assisting State, the United Nations, or
other assisting actor may terminate external assistance at any time.
Any such State or actor intending to terminate shall provide appropriate
notification. The affected State and, as appropriate, the
assisting State, the United Nations, or other assisting actor shall
consult with respect to the termination of external assistance and
the modalities of termination.
Article 18. Relationship to other rules of international law
1. The present draft articles are without prejudice to other applicable
rules of international law.
2. 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.
2. T ext of the draft articles
and commentaries thereto
49. The text of the draft preamble and the draft articles,
together with commentaries thereto, adopted by the Commission
on second reading, is reproduced below.
PROTECTION OF PERSONS
IN THE EVENT OF DISASTERS
Preamble
Bearing in mind Article 13, paragraph 1 (a), of the
Charter of the United Nations, which provides that
the General Assembly shall initiate studies and make
recommendations for the purpose of encouraging the
progressive development of international law and its
codification,
Considering the frequency and severity of natural
and human-made disasters and their short-term and
long-term damaging impact,
Fully aware of the essential needs of persons affected
by disasters, and conscious that the rights of those persons
must be respected in such circumstances,
Mindful of the fundamental value of solidarity in
international relations and the importance of strengthening
international cooperation in respect of all phases
of a disaster,
Stressing the principle of the sovereignty of States
and, consequently, reaffirming the primary role of the
State affected by a disaster in providing disaster relief
assistance,
Commentary
(1) The preamble aims at providing a conceptual framework
for the draft articles, setting out the general context
in which the topic of the protection of persons in the event
of disasters has been elaborated and furnishing the essential
rationale for the text.
(2) The first preambular paragraph focuses on the mandate
given to the General Assembly, under Article 13,
paragraph 1 (a), of the Charter of the United Nations, to
encourage the progressive development of international
law and its codification and on the consequential object
of the International Law Commission, as provided in article
1 of its statute. It restates similar wording included
in recent final drafts of the Commission containing a preamble.
18 It also serves, at the outset, to highlight the fact
that the draft articles contain elements of both progressive
development and codification of international law.
(3) The second preambular paragraph calls attention to
the frequency and severity of natural and human-made disasters,
and their damaging impact, which have raised the
concern of the international community, leading to the formulation
by the Commission of legal rules. The reference
to “natural and human-made disasters” emphasizes a distinctive
characteristic of the draft articles when compared
with other similar instruments, which have a more restricted
scope by being limited to natural disasters. On the contrary,
disasters often arise from complex sets of causes. Furthermore,
the draft articles are intended to cover the various
stages of the disaster cycle, focusing on response and disaster
risk reduction. The reference to “short-term and longterm
impact” is intended to show that the focus of the draft
articles is not just on the immediate effects of a disaster. It
also implies a far-reaching approach, addressing activities
devoted to the recovery phase.
(4) The third preambular paragraph addresses the essential
needs of the persons whose lives, well-being and
property have been affected by disasters, and reiterates
18 See the articles on prevention of transboundary harm from hazardous
activities, General Assembly resolution 62/68 of 6 December
2007, annex, and for the commentaries thereto, Yearbook … 2001,
vol. II (Part Two) and corrigendum, pp. 148 et seq., para. 98; and the
articles on the law of transboundary aquifers, General Assembly resolution
63/124 of 11 December 2008, annex, and for the commentaries
thereto, Yearbook … 2008, vol. II (Part Two), pp. 22 et seq., para. 54.
Protection of persons in the event of disasters 27
that the rights of those persons must be respected in such
circumstances as provided for by the draft articles.
(5) The fourth preambular paragraph recalls the fundamental
value of solidarity in international relations, and
the importance of strengthening international cooperation
in respect of all phases of a disaster, both of which are key
concepts underlying the topic and which cannot be interpreted
as diminishing the sovereignty of affected States
and their prerogatives within the limits of international
law. Mention of “all phases of disasters” recognizes the
reach of the articles into each component phase of the
entire disaster cycle, as appropriate.
(6) The final preambular paragraph stresses the principle
of the sovereignty of States, and reaffirms the primary
role of the affected State in the provision of disaster
relief assistance, which is 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.
Article 1. Scope
The present draft articles apply to the protection of
persons in the event of disasters.
Commentary
(1) Draft article 1 establishes the scope of the draft articles
and tracks the formulation of the title of the topic. It
sets the orientation of the draft articles as being primarily
focused on the protection of persons whose life, wellbeing
and property are affected by disasters. Accordingly,
as established in draft article 2, the focus is on facilitating
a response to disasters, as well as reducing the risk of disasters,
so as to adequately and effectively meet the essential
needs of the persons concerned, while fully respecting
their rights.
(2) The draft articles cover, ratione materiae, the rights
and obligations of States affected by a disaster in respect
of persons present in their territory (irrespective of nationality)
or in territory under their jurisdiction or control, and
the rights and obligations of third States and intergovernmental
organizations and non-governmental organizations
and other entities in a position to cooperate, particularly in
the provision of disaster relief assistance as well as in the
reduction of disaster risk. Such rights and obligations are
understood to apply on two axes: the rights and obligations
of States in relation to one another and the rights and
obligations of States in relation to persons in need of protection.
While the focus is on the former, the draft articles
also contemplate, albeit in general terms, the rights of individuals
affected by disasters, as established by international
law. The importance of human rights protection in
disaster situations is demonstrated by the increased attention
paid to the issue by human rights bodies established
under the auspices of the United Nations, as well as by regional
international courts. Furthermore, as is elaborated
in draft article 3, the draft articles are not limited to any
particular type of disaster. A distinction between natural
and human-made disasters would be artificial and difficult
to sustain in practice in view of the complex interaction of
different causes leading to disasters.
(3) The scope ratione personae of the draft articles is
limited to natural persons affected by disasters. In addition,
the focus is primarily on the activities of States and
intergovernmental organizations, including regional integration
organizations, and other entities enjoying specific
international legal competence in the provision of disaster
relief assistance in the context of disasters. The activities of
non-governmental organizations and other private actors,
sometimes collectively referred to as “civil society” actors,
are included within the scope of the draft articles only in a
secondary manner, either as direct beneficiaries of duties
placed on States (for example, of the duty of States to cooperate,
in draft article 7) or indirectly, as being subject to
the domestic laws implementing the draft articles of the affected
State, a third State or the State of nationality of the
entity or private actor. Except where specifically indicated
otherwise, the draft articles cover international disaster
response by both international and domestic actors. The
draft articles do not, however, cover other types of international
assistance, such as assistance provided by States to
their nationals abroad and consular assistance.
(4) As suggested by the phrase “in the event of” in the
title of the topic, the scope of the draft articles ratione
temporis is primarily focused on the immediate postdisaster
response and early recovery phase, including
the post-disaster reconstruction phase. Nonetheless, as
confirmed by draft article 2, the pre-disaster phase falls
within the scope of the draft articles, and is the subject
of draft article 9, which deals with disaster risk reduction
and disaster prevention and mitigation activities.
(5) The draft articles are not limited, ratione loci, to
activities in the area where the disaster occurs, but also
cover those within assisting States and transit States. Nor
is the transboundary nature of a disaster a necessary condition
for the triggering of the application of the draft articles.
Certainly, it is not uncommon for major disasters to
have a transboundary effect, thereby increasing the need
for international cooperation and coordination. Nonetheless,
examples abound of major international relief
assistance efforts being undertaken in response to disasters
occurring solely within the territorial boundaries of a
single State, or within a territory under its jurisdiction or
control. In the event of a disaster, States have the duty to
protect all persons present in their territory, or in territory
under their jurisdiction or control, irrespective not only of
nationality but also of legal status. While different considerations
may arise, unless otherwise specified, the draft
articles are not tailored with any specific disaster type or
situation in mind, but are intended to be applied flexibly
to meet the needs arising from all disasters, regardless of
their transboundary effect.
Article 2. Purpose
The purpose of the present draft articles is 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.
Commentary
(1) Draft article 2 elaborates on draft article 1 (Scope)
by providing further guidance on the purpose of the draft
28 Report of the International Law Commission on the work of its sixty-eighth session
articles. The main issue raised relates to the juxtaposition
of “needs” versus “rights”. The Commission was aware
of the debate in the humanitarian assistance community
on whether a “rights-based” approach as opposed to the
more traditional “needs-based” approach was to be preferred,
or vice versa. The prevailing sense of the Commission
was that the two approaches were not necessarily
mutually exclusive, but were best viewed as being complementary.
The Commission settled for a formulation
that emphasized the importance of the response to a disaster,
and the reduction of the risk of disasters, that adequately
and effectively meets the “needs” of the persons
concerned. Such response, or reduction of risk, has to take
place with full respect for the rights of such persons.
(2) Although not necessarily a term of art, by “adequate
and effective” what is meant is a high-quality response or
reduction of the risk of disasters, so as to meet the essential
needs of the persons affected by the disaster. Similar
formulations are to be found in existing agreements, in
the context of the response to disasters. These include
“effective and concerted” and “rapid and effective” found
in the Association of Southeast Asian Nations (ASEAN)
Agreement on Disaster Management and Emergency
Response of 2005 (ASEAN Agreement), as well as
“proper and effective” used in the Tampere Convention on
the Provision of Telecommunication Resources for Disaster
Mitigation and Relief Operations of 1998 (Tampere
Convention). Given the context in which such response
is to be provided, an element of timeliness is implicit in
the term “effective”. The more drawn-out the response,
the less likely it is that it will be effective. This and other
aspects of what makes a response “adequate” and “effective”
is the subject of other provisions of the draft articles,
including draft article 15. Notwithstanding this, it is
understood that while a high standard is called for, it has,
nonetheless, to be based in what is realistic and feasible
“on the ground” in any given disaster situation. Hence, no
reference is made, for example, to the response having to
be “fully” effective.
(3) While the main emphasis of the draft articles is on
the response to disasters, the dimension of disaster risk
reduction also falls within their scope and is the subject of
draft article 9. In doing so, the draft articles acknowledge
the general recognition, within the international community
(most recently evidenced by the Sendai Framework
for Disaster Risk Reduction, 2015–2030, adopted
in 2015),19 of the essential role of disaster risk reduction.
The reference to “adequate and effective” action so as to
“meet the essential needs of the persons concerned, with
full respect for their rights”, accordingly, applies equally
to disaster response and disaster risk reduction.
(4) The Commission decided not to formulate the provision
in the form of a general statement on the obligation
of States, as it was felt that it would not sufficiently
highlight the specific rights and obligations of the affected
State. It was not clear, for example, whether such a formulation
would sufficiently distinguish between different obligations
for different States, such as for the affected State
19 The Sendai Framework for Disaster Risk Reduction 2015–2030,
adopted at the Third United Nations World Conference on Disaster
Risk Reduction and endorsed by the General Assembly in its resolution
69/283 of 3 June 2015, annex II.
as opposed to assisting States. Accordingly, a reference to
States was not included, on the understanding that it was
not strictly necessary for a provision on the purpose of
the draft articles. The obligations of States are specifically
considered in other provisions of the draft articles.
(5) The word “facilitate” reflects the vision of the Commission
for the role that the draft articles might play in
the overall panoply of instruments and arrangements that
exist at the international level in the context of disaster
relief assistance, as well as disaster risk reduction. It was
felt that while the draft articles could not by themselves
ensure a response, or the reduction of risk, they were
intended to facilitate an adequate and effective response
or reduction of risk.
(6) The qualifier “essential” before the term “needs” was
included in order to indicate more clearly that the needs
being referred to are those related to survival or similarly
basic needs in the aftermath of a disaster. It was felt that
“essential” clearly brought out the context in which such
needs arise. Such reference should be further understood
in the context of the importance of taking into account the
needs of the particularly vulnerable, as indicated in draft
article 6.
(7) By “persons concerned” what is meant are people
directly affected by the disaster, including by being displaced
thereby, as opposed to individuals more indirectly
affected. This term was inserted so as to qualify the scope
of the draft articles and is in conformity with the approach
taken by existing instruments, which focus on the provision
of relief to persons directly affected by a disaster. This is
not to say that individuals who are more indirectly affected,
for example, through loss of family members in a disaster
or who suffered economic loss owing to a disaster elsewhere,
would be without remedy or recourse. Indeed, it is
not the intention of the Commission to state the legal rules
applicable to such individuals in the draft articles. The inclusion
within the scope of the draft articles of disaster risk
reduction implies that the “persons concerned” would cover
those likely to be affected by a future disaster, a determination
to be made at the national level based on an evaluation
of the persons’ exposure and vulnerability.
(8) The reference to “with full respect for their rights”
aims at ensuring that the rights in question be respected and
protected, as confirmed, in the context of human rights, by
draft article 5. In addition, the phrase intentionally leaves
the question of how rights are to be enforced to the relevant
rules of international law themselves. While the draft
articles primarily envisage the application of human rights,
which is the subject of draft article 5, the reference to
“rights” is not only a reference to human rights, but also,
inter alia, to rights acquired under domestic law.
Article 3. Use of terms
For the purposes of the present draft articles:
(a) “disaster” means 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;
Protection of persons in the event of disasters 29
(b) “affected State” means a State in whose territory,
or in territory under whose jurisdiction or control,
a disaster takes place;
(c) “assisting State” means a State providing assistance
to an affected State with its consent;
(d) “other assisting actor” means a competent
intergovernmental organization, or a relevant nongovernmental
organization or entity, providing assistance
to an affected State with its consent;
(e) “external assistance” means relief personnel,
equipment and goods, and services provided to an
affected State by an assisting State or other assisting
actor for disaster relief assistance;
(f ) “relief personnel” means civilian or military
personnel sent by an assisting State or other assisting
actor for the purpose of providing disaster relief
assistance;
(g) “equipment and goods” means supplies, tools,
machines, specially trained animals, foodstuffs, drinking
water, medical supplies, means of shelter, clothing,
bedding, vehicles, telecommunications equipment,
and other objects for disaster relief assistance.
Commentary
(1) The Commission’s practice, as reflected in most of
the draft articles adopted on diverse topics of international
law, has been to include a provision on the “use of terms”.
Some of the terms selected for inclusion in draft article 3
were specifically singled out in the commentaries to various
draft articles as requiring definition. Other terms were
included because of their overall frequency of occurrence
in the draft articles.
Subparagraph (a)
(2) Subparagraph (a) defines the term “disaster” solely
for the purposes of the draft articles. The definition has
been delimited so as to properly capture the scope of the
draft articles, as established in draft article 1, while not,
for example, inadvertently also dealing with other serious
events, such as political and economic crises, which may
also undermine the functioning of society, but which are
outside the scope of the draft articles. Such delimitation is
evident from two features of the definition: (a) the emphasis
placed on the existence of a calamitous event that
causes serious disruption of the functioning of society;
and (b) the inclusion of a number of qualifying phrases.
(3) The Commission considered the approach of the
Tampere Convention, which conceptualized a disaster
as being the consequence of an event, namely the serious
disruption of the functioning of society caused by
that event, as opposed to being the event itself. The Commission
was aware that such an approach represented
contemporary thinking in the humanitarian assistance
community, as confirmed, notably, by the 2005 World
Conference on Disaster Reduction, convened by the
United Nations at Kobe (Hyogo, Japan), as well as by
recent treaties and other instruments, including the 2007
Guidelines for the Domestic Facilitation and Regulation
of International Disaster Relief and Initial Recovery Assistance
of the IFRC (IDRL Guidelines).20 Nonetheless,
the Commission decided to shift the emphasis back to the
earlier conception of “disaster” as being a specific event,
since it was embarking on the formulation of a legal instrument,
which required a more concise and precise legal
definition, as opposed to one that is more policy-oriented.
(4) The element requiring the existence of an event is
qualified in several ways. First, the reference to a “calamitous”
event serves to establish a threshold, by reference
to the nature of the event, whereby only extreme events
are covered. This was inspired by the definition embodied
in the resolution on humanitarian assistance adopted
by the Institute of International Law at its 2003 Bruges
session,21 which deliberately established a higher threshold
so as to exclude other acute crises. What constitutes
“calamitous” is to be understood both by application of
the qualifier in the remainder of the provision, namely “…
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”; and by keeping in mind the
scope and purpose of the draft articles, as articulated in
draft articles 1 and 2. In addition, reference is made to
“event or series of events” in order to cover those types
of events, such as frequent small-scale disasters, that, on
their own, might not meet the necessary threshold, but
that, taken together, would constitute a calamitous event
for the purposes of the draft articles. No limitation is included
concerning the origin of the event, that is whether
it is natural or human-made, in recognition of the fact that
disasters often arise from complex sets of causes that may
include both wholly natural elements and contributions
from human activities. Likewise, the draft articles apply
equally to sudden-onset events (such as an earthquake or
tsunami) and to slow-onset events (such as drought or
sea-level rise), as well as to frequent small-scale events
(floods or landslides).
(5) The event is further qualified by two causation
requirements. First, for the event, or series of events, to be
considered “calamitous” in the sense required by the draft
articles, it has to result in one or more of four possible
outcomes: widespread loss of life, great human suffering
and distress, mass displacement, or large-scale material or
environmental damage. Accordingly, a major event such
as a serious earthquake, which takes place in the middle
of the ocean or in an uninhabited area and which does
not result in at least one of the four envisaged outcomes,
would not satisfy the threshold requirement in subparagraph
(a). Second, the nature of the event is further qualified
by the requirement that any, or all, of the four possible
outcomes, as applicable, result in the serious disruption of
the functioning of society. In other words, an event that
20 IDRL Guidelines, adopted at the 30th International Conference
of the Red Cross and Red Crescent, Geneva, 26–30 November 2007
(30IC/07/R4, annex and annotations); see also International Federation
of Red Cross and Red Crescent Societies (IFRC), Introduction to the
Guidelines for the Domestic Facilitation and Regulation of International
Disaster Relief and Initital Recovery Assistance (Geneva, 2008).
21 Yearbook of the Institute of International Law, vol. 70, Part II
(Session of Bruges, 2003), p. 263 (www.idi-iil.org, Publications and
Works/Resolutions).
30 Report of the International Law Commission on the work of its sixty-eighth session
resulted in, for example, large-scale material damage,
but did not seriously disrupt the functioning of society,
would not, accordingly, satisfy the threshold requirement.
Hence, by including such causal elements, the definition
retains aspects of the approach taken in contemporary
texts, as exemplified by the Tampere Convention, namely
by considering the consequence of the event as a key aspect
of the definition, albeit for purposes of establishing
the threshold for the application of the draft articles.
(6) The element of “widespread loss of life” is a refinement,
inspired by the 1995 Code of Conduct for the
International Red Cross and Red Crescent Movement
and Non-Governmental Organizations (NGOs) in Disaster
Relief.22 The requirement of “widespread” loss
of life serves to exclude events that result in relatively
low loss of life; it being borne in mind that such events
could nonetheless satisfy one of the other causal requirements.
Conversely, an event causing widespread loss of
life could, on its own, satisfy the causation requirement
and could result in the triggering of the application of the
draft articles if it resulted in the serious disruption of the
functioning of society.
(7) The possibility of “great human suffering and distress”
was included out of recognition that many major
disasters are accompanied by widespread loss of life or by
great human suffering and distress, including that occasioned
by non-fatal injuries, disease or other health problems
caused by the disaster. Accordingly, cases where
an event has resulted in relatively localized loss of life,
owing to adequate prevention and preparation, as well as
effective mitigation actions, but nonetheless has caused
severe dislocation resulting in great human suffering and
distress that seriously disrupt the functioning of society,
would be covered by the draft articles.
(8) Similarly, “mass displacement” refers to one of
the other consequences of major disasters, namely the
displacement of persons on a large scale. Together with
“great human suffering and distress”, displacement by the
onset of a disaster is one of the two most common ways
in which persons are considered “affected” by the disaster.
Displacement affects persons through the loss of access to
livelihoods, social services and social fabric. In complying
with their obligations set forth in the draft articles, States
should also take into account the displacement dimension.
The qualifier “mass” was included to align with the high
threshold for the application of the draft articles.
(9) “Large-scale material or environmental damage”
was included by the Commission in recognition of the
wide-scale damage to property, livelihoods and economic,
physical, social and cultural assets, as well as
the environment, typically caused by major disasters
and the resultant disruption of the functioning of society
arising from the severe setback for human development
and well-being that such a loss typically causes. It is to
be understood that it is not the environmental or property
loss per se that would be covered by the draft articles,
but rather the impact on persons of such loss; thus
avoiding a consideration of economic loss in general.
A requirement of economic loss might unnecessarily
22 International Review of the Red Cross, vol. 36, No. 310 (January–
February1996), p. 119.
limit the scope of the draft articles, by, for example, precluding
them from also dealing with activities designed
to mitigate potential future human loss arising from existing
environmental damage.
(10) As already alluded to, the requirement of serious
disruption of the functioning of society serves to establish
a high threshold that would exclude from the scope of the
draft articles other types of crises such as serious political
or economic crises. Moreover, differences in application
can be further borne out by the purpose of the draft
articles, as established in draft article 2, and by the fact
that the type of protection required, and rights involved,
may be different, and are, to varying extents, regulated by
other rules of international law, in particular international
humanitarian law, as indicated in draft article 18. A situation
of armed conflict cannot be qualified per se as a
disaster for the purposes of the present draft articles. The
requirement of serious disruption necessarily also implies
the potential for such disruption. This means that the fact
that a State took appropriate disaster risk reduction measures
or relief measures, in accordance with established
emergency plans in response to a disaster with the potential
to seriously disrupt the functioning of society, would
not per se exclude the application of the draft articles.
(11) While the four possible outcomes envisaged provide
some guidance on what might amount to a serious
disruption of the functioning of society, the Commission
refrained from providing further descriptive or qualifying
elements, so as to leave some discretion in practice.
(12) The definition of “disaster”, for purposes of the
draft articles, is subject to the specification in draft article
18, paragraph 2, that the draft articles do not apply to
the extent that the response to a disaster is governed by
the rules of international humanitarian law.
Subparagraph (b)
(13) Subparagraph (b), which defines the term “affected
State” for purposes of the draft articles, is inspired by the
definition of the same term provided in the IDRL Guidelines.
23 It reflects the basic orientation that the draft articles
are primarily addressed to States. It also anticipates
the centrality of the role to be played by the State affected
by the disaster, as established in draft article 10.
(14) The key feature in disaster response or disaster risk
reduction is State control. In most cases that would accord
with control exercised by the State upon whose territory
the disaster occurs. However, this does not necessarily
exclude other situations in which a State may exercise
de jure jurisdiction, or de facto control, over another territory
in which a disaster occurs. The phrase “in whose territory,
or in territory under whose jurisdiction or control”
was inspired by the definition of “State of origin” in draft
article 2, subparagraph (d), of the 2001 articles on prevention
of transboundary harm from hazardous activities.24
23 IDRL Guidelines (see footnote 20 above), Introduction, sect. 2,
para. 8: “the State upon whose territory persons or property are affected
by a disaster”.
24 General Assembly resolution 62/68 of 6 December 2007, annex;
for the commentary thereto, see Yearbook … 2001, vol. II (Part Two)
and corrigendum, pp. 148 et seq., para. 98.
Protection of persons in the event of disasters 31
(15) The Commission considered that a State exercising
jurisdiction or control over a territory (other than its
own) in which a disaster occurs would also be deemed an
“affected State” for purposes of the draft articles. Such
possibility is also implicit in the recognition, in draft article
18, that the draft articles would apply in the context
of so-called “complex disasters”, which occur in the same
territory where an armed conflict is taking place, to the extent
that the response to the disaster in question is not governed
by the rules of international humanitarian law. At
the same time, the provision was intentionally formulated
to make the territorial link clear. As such, the reference to
“jurisdiction” is not intended to include States of nationality
that may claim jurisdiction under international law
over individual persons affected by a disaster that occurs
outside their territory, or territory under their jurisdiction
or control. The Commission recognized that the implication
of including States exercising jurisdiction or control
was that, in exceptional cases, there may be two affected
States: the State upon whose territory the disaster occurs
and the State exercising jurisdiction or control over the
same territory.
(16) The concluding phrase “a disaster takes place” is
intended to align the definition of “affected State” with that
of “disaster”, in subparagraph (a). It seeks to strike a balance
between the option of placing the emphasis on the effects
of a disaster, thereby increasing the number of States
that could potentially be considered “affected States”,
as opposed to that of focusing on the territorial component
(where the event took place), which could unnecessarily
exclude States that suffer the consequences of the
disaster even though the event did not, strictly speaking,
take place in their territory (or territory under their jurisdiction
or control). Accordingly, an explicit renvoi to the
definition of “disaster”, in subparagraph (a), is made in
recognition of the fact that the draft articles provide for a
composite definition of disaster, covering both the event
and its effects, and implying that different States may be
considered “affected”, for purposes of the draft articles, in
different scenarios. It also accords with the Commission’s
approach of considering the consequence of the event as a
key element for purposes of establishing the threshold for
the application of the draft articles.25
Subparagraph (c)
(17) The definition of “assisting State” in subparagraph
(c) is drawn from the definition of “supporting
State” in article 1 (f ) of the 2000 Framework Convention
on Civil Defence Assistance, with the term “Beneficiary
State” changed to “affected State”, which is the term utilized
in the draft articles and defined in subparagraph (b).
The phrase “a State providing assistance” is a reference to
the concept of “external assistance”, which is defined in
subparagraph (e), and which is undertaken on the basis of
the duty to cooperate in draft article 7, read together with
draft articles 8 and 9.
(18) A State is only categorized as an “assisting State”
once the assistance is being or has been provided. In other
words, a State offering assistance is not an “assisting
State”, with the various legal consequences that flow from
25 See para. (4) of the present commentary, above.
such categorization, as provided for in the draft articles,
until such assistance has been consented to by the affected
State, in accordance with draft article 13.
Subparagraph (d)
(19) In addition to affected and assisting States, the draft
articles also seek to regulate the position of other assisting
actors. A significant proportion of contemporary disaster
risk reduction and disaster relief activities are undertaken
by, or under the auspices of, international organizations,
including but not limited to the United Nations, as well as
non-governmental organizations and other entities. This
group of actors is collectively referred to in the draft articles
as “other assisting actors”. This reference is without
prejudice to the differing legal status of these actors under
international law, which is acknowledged in the draft articles,
for example in draft article 12.26
(20) The definition reflects the commentary to draft
article 7, which confirms the understanding that the term
“assisting actors” refers to, in the formulation employed
in draft article 7, the United Nations, the components
of the International Red Cross and Red Crescent Movement,
and other assisting actors.27 The phrase “or entity”,
which is drawn, in part, from the ASEAN Agreement,28
was added in recognition of the fact that not all actors
that are involved in disaster relief efforts can be categorized
in one or the other category mentioned. In particular,
that phrase is to be understood as referring to
entities such as the International Red Cross and Red
Crescent Movement.
(21) The Commission understood the definition of
“other assisting actors” as being limited, for purposes of
the draft articles, to those that are external to the affected
State.29 Accordingly, the activities of domestic non-governmental
organizations, for example, are not covered.
Nor would a domestic actor incidentally fall within the
scope of the draft articles through the act of securing, or
attempting to secure, assistance from abroad.
(22) As with the definition of “assisting State”, in subparagraph
(c), the concluding phrase “providing assistance
to that State with its consent” is a reference to the
central role played by consent in the draft articles, in accordance
with draft article 13. It is also included in recognition
of the broad range of activities typically undertaken
by the entities in question, in the context of both disaster
risk reduction and the provision of disaster relief assistance,
and which are regulated by the draft articles.
Subparagraph (e)
(23) Subparagraph (e) defines the type of assistance that
the draft articles envisage assisting States or other assisting
actors providing to the affected State, as a form of
cooperation anticipated in draft article 8.
26 See para. (4) of the commentary to draft article 12, below.
27 See para. (1) of the commentary to draft article 7, below. See also
the IDRL Guidelines (footnote 20 above), Introduction, sect. 2, para. 14
(definition of “assisting actor”).
28 Art. 1, para. 1 (definition of “assisting entity”).
29 See para. (2) of the commentary to draft article 14, below.
32 Report of the International Law Commission on the work of its sixty-eighth session
(24) The formulation is based on both the Guidelines on
the Use of Foreign Military and Civil Defence Assets in
Disaster Relief (also known as the “Oslo Guidelines”)30
and the 2000 Framework Convention on Civil Defence
Assistance.31 The reference to “material” in the Oslo
Guidelines was replaced with “equipment and goods”,
which is the term used in the draft articles, and which is
defined in subparagraph (g).
(25) The phrase “provided to an affected State by an
assisting State or other assisting actor” reiterates the
nature of the legal relationship between the assisting State
or actor and the affected State, as envisaged in the draft
articles.
(26) The concluding clause seeks to clarify the purpose
for which external assistance ought to be provided,
namely “for disaster relief assistance”. The Commission
understood that the concept of “external assistance”, by
definition, applied specifically to the response phase.
While the formulation is cast in the technical terminology
of disaster response, it is understood to accord with the
relevant part of the overall purpose of the draft articles, as
set out in draft article 2, namely to “facilitate the adequate
and effective response to disasters … so as to meet the
essential needs of the persons concerned, with full respect
for their rights”.
Subparagraph (f )
(27) The subparagraph defines the personnel component
of external assistance provided by assisting States
or by other assisting actors. The definition indicates the
two types of personnel who are typically sent for the
purpose of providing disaster relief assistance, namely
“civilian” or “military” personnel.32 The reference to the
latter category was also inspired by the bilateral treaty between
Greece and the Russian Federation of 2000,33 and
is intended as recognition of the important role played
by military personnel, as a category of relief personnel,
in the provision of disaster relief assistance. While the
reference to military personnel is more pertinent to the
case of assisting States, the term “civilian” personnel is
meant to be broad enough to cover such personnel sent
by assisting States and other assisting actors. That these
are options open to some, but not all, assisting entities
(including States) is confirmed by the use of the phrase in
the alternative (“or”).
(28) It is understood that such personnel are typically
“specialized” personnel, as referred to in the annex to
General Assembly resolution 46/182 of 19 December
1991, in that what is expected are personnel who have the
necessary skill set and are provided with the necessary
equipment and goods, as defined in subparagraph (g), to
perform the functions in question.
30 United Nations, OCHA, Oslo Guidelines. Guidelines on The Use
of Foreign Military and Civil Defence Assets in Disaster Relief, Revision
1.1 (November 2007).
31 See article 1 (d) (definition of “assistance”).
32 See the Oslo Guidelines (footnote 30 above).
33 Agreement between the Government of the Hellenic Republic and
the Government of the Russian Federation on co-operation in the field
of prevention and response to natural and man-made disasters, Athens,
21 February 2000, art. 1 (definition of “team for providing assistance”).
(29) The phrase “sent by” establishes a nexus between
the assisting actor, whether a State or other actor, and the
personnel concerned. The Commission decided against
making a reference to “acting on behalf of” in order not
to prejudge any question related to the application of the
rules of international law on the attribution of conduct to
States or international organizations,34 given the primary
role of the affected State as provided for in draft article 10,
paragraph 2.
Subparagraph (g)
(30) As indicated in subparagraph (e), “equipment” and
“goods” are a key component of the kind of external assistance
being envisaged in the draft articles. The formulation
is drawn from the commentary to draft article 15,35
as well as the resolution on humanitarian assistance of the
Institute of International Law.36 The list covers the types
of material generally accepted to be necessary for the provision
of disaster relief assistance. That the list is not exhaustive
is confirmed by the reference to “other objects”.
(31) Generally speaking, two types of material are
envisaged: the technical “equipment” required by the
disaster relief personnel to perform their functions, both
in terms of their own sustenance and in terms of what
they require to provide relief, such as supplies, physical
and electronic tools, machines and telecommunications
equipment; and “goods” that are necessary for the survival
and fulfilment of the essential needs of the victims
of disasters, such as foodstuffs, drinking water, medical
supplies, means of shelter, clothing and bedding. Search
dogs are specifically anticipated in the phrase “specially
trained animals”, which is drawn from specific annex J
to the International Convention on the Simplification and
Harmonization of Customs Procedures (“Revised Kyoto
Convention”).37 The Commission considered the definition
to be sufficiently flexible also to include services that
might be provided by relief personnel.
Article 4. Human dignity
The inherent dignity of the human person shall be
respected and protected in the event of disasters.
Commentary
(1) Draft article 4 addresses the principle of human dignity
in the context of both disaster response and disaster
risk reduction. Human dignity is the core principle that
informs and underpins international human rights law. In
the context of the protection of persons in the event of
disasters, human dignity is situated as a guiding principle
for any action to be taken in the context of the provision
of relief assistance, in disaster risk reduction and in the
34 See the 2001 articles on responsibility of States for internationally
wrongful acts (General Assembly resolution 56/83 of 12 December
2001, annex, arts. 4–9; for the commentaries thereto, see Yearbook …
2001, vol. II (Part Two) and corrigendum, pp. 30 et seq., para. 77) and the
2011 articles on the responsibility of international organizations (General
Assembly resolution 66/100 of 9 December 2011, annex, arts. 6–7;
for the commentaries thereto, see Yearbook … 2011, vol. II (Part Two),
pp. 46 et seq., para. 88).
35 See para. (5) of the commentary to draft article 15, below.
36 See footnote 21 above.
37 Revised by the Protocol of Amendment to the International Convention
on the Simplification and Harmonization of Customs Procedures
of 26 June 1999 (definition of “relief consignments”).
Protection of persons in the event of disasters 33
ongoing evolution of applicable laws. The Commission
considered the centrality of the principle to the protection
of persons in the event of disasters as sufficient justification
for the inclusion of “human dignity” in a separate,
autonomous provision in the body of the draft articles.
(2) The principle of human dignity undergirds international
human rights instruments and has been interpreted
as providing the ultimate foundation of human
rights law. Reaffirmation of “the dignity and worth of the
human person” is found in the preamble to the Charter
of the United Nations, while the preamble to the 1948
Universal Declaration of Human Rights38 declares that
“recognition of the inherent dignity … of all members of
the human family is the foundation of freedom, justice
and peace in the world”. Affirmation of the principle of
human dignity can be found in the International Covenant
on Civil and Political Rights,39 the International Covenant
on Economic, Social and Cultural Rights,40 the International
Convention on the Elimination of All Forms of
Racial Discrimination,41 the Convention on the Elimination
of All Forms of Discrimination against Women,42 the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,43 the Convention on
the Rights of the Child44 and the Convention on the Rights
of Persons with Disabilities.45 The principle is also central
to the field of international humanitarian law. The concept
of personal dignity is recognized in common article 3,
paragraph 1 (c), of the Geneva Conventions for the protection
of war victims,46 articles 75 and 85 of the Protocol
additional to the Geneva Conventions of 12 August 1949,
and relating to the protection of victims of international
armed conflicts (Protocol I)47 and article 4 of the Protocol
additional to the Geneva Conventions of 12 August 1949,
and relating to the protection of victims of non-international
armed conflicts (Protocol II).48
38 General Assembly resolution 217 (III) (A) of 10 December 1948.
39 Preambular paras. and art. 10, para. 1.
40 Preambular paras. and art. 13, para. 1.
41 Preambular paras.
42 Idem.
43 Idem.
44 Idem; art. 23, para. 1; art. 28, para. 2; art. 37; and arts. 39–40.
45 Art. 3.
46 Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field; Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea; Geneva Convention
relative to the Treatment of Prisoners of War; and Geneva Convention
relative to the Protection of Civilian Persons in Time of War, common
art. 3, para. 1 (c) (noting the prohibition on “outrages upon personal
dignity, in particular humiliating and degrading treatment”).
47 Protocol additional to the Geneva Conventions of 12 August
1949, and relating to the protection of victims of international armed
conflicts (Protocol I), 1977, art. 75, para. 2 (b) (noting the prohibition
on “[o]utrages upon personal dignity, in particular humiliating and
degrading treatment, enforced prostitution and any form of indecent
assault”); art. 85, para. 4 (c) (noting that when committed wilfully and
in violation of the Conventions or the Protocol, “[p]ractices of apartheid
and other inhuman and degrading practices involving outrages
upon personal dignity, based on racial discrimination” are regarded as
grave breaches of the Protocol).
48 Protocol additional to the Geneva Conventions of 12 August
1949, and relating to the protection of victims of non-international
armed conflicts (Protocol II), 1977, art. 4, para. 2 (e) (noting the prohibition
on “[o]utrages upon personal dignity, in particular humiliating
and degrading treatment, rape, enforced prostitution and any form of
indecent assault”).
(3) The concept of human dignity also lies at the core of
numerous instruments at the international level directed
towards the provision of humanitarian relief in the event
of disasters. The IDRL Guidelines state: “Assisting actors
and their personnel should … respect the human dignity
of disaster-affected persons at all times.”49 The General
Assembly, in its resolution 45/100 of 14 December 1990,
holds that “the abandonment of the victims of natural disasters
and similar emergency situations without humanitarian
assistance constitutes a threat to human life and an
offence to human dignity”.50 The Institute of International
Law likewise was of the view that a failure to provide
humanitarian assistance to those affected by disasters constitutes
“an offence to human dignity”.51
(4) The precise formulation of the principle adopted
by the Commission, namely the “inherent dignity of the
human person”, is drawn from the preamble to the International
Covenant on Economic, Social and Cultural Rights
and article 10, paragraph 1, of the International Covenant
on Civil and Political Rights. This formulation has also
been adopted in instruments such as the Convention on
the Rights of the Child52 and the American Convention on
Human Rights: “Pact of San José”.53
(5) The provision does not give an express indication of
the actors being addressed. It could be considered that it
applies only to States, but not necessarily to “other assisting
actors”, given that different legal approaches exist as
to non-State entities owing legal obligations, under international
law, to protect the human dignity of an affected
person. Nonetheless, the provision should be understood
as applying to assisting States and those assisting actors
(as understood under draft article 3) capable of acquiring
legal obligations under international law. The Commission
recognizes the role played both by affected States and
by assisting States in disaster response and risk reduction
activities (which are the subject of draft articles 9 to 16).
Much of the activity in the field of disaster response, and
to a certain extent in that of disaster risk reduction, occurs
through organs of intergovernmental organizations, nongovernmental
organizations and other non-State entities
such as IFRC.54
(6) The phrase “respected and protected” accords with
contemporary doctrine and jurisprudence in international
human rights law. The formula is used in a number of
instruments that relate to disaster relief, including the
Oslo Guidelines,55 the Mohonk Criteria,56 the Guiding
49 IDRL Guidelines (see footnote 20 above), Part I, sect. 4, para. 1.
50 Preambular paragraph.
51 Resolution on humanitarian assistance (see footnote 21 above),
art. II, para. 1.
52 See article 37 (c) (noting, inter alia, that “[e]very child deprived
of liberty shall be treated with humanity and respect for the inherent
dignity of the human person”).
53 Art. 5, para. 2 (noting, inter alia, that “[a]ll persons deprived of
their liberty shall be treated with respect for the inherent dignity of the
human person”).
54 See Yearbook … 2006, vol. II (Part Two), annex III, p. 211, para. 28.
55 Oslo Guidelines (see footnote 30 above), para. 20 (noting that
“[t]he dignity and rights of all victims must be respected and protected”).
56 J. M. Ebersole, “The Mohonk Criteria for humanitarian assistance
in complex emergencies: Task force on ethical and legal issues in humanitarian
assistance” (“Mohonk Criteria”), Human Rights Quarterly,
vol. 17, No. 1 (1995), p. 192, at p. 196 (noting that “[t]he dignity and
rights of all victims must be respected and protected”).
34 Report of the International Law Commission on the work of its sixty-eighth session
Principles on Internal Displacement57 and the Guiding
Principles on the Right to Humanitarian Assistance.58 In
conjunction, the terms “respect” and “protect” connote a
negative obligation to refrain from injuring the inherent
dignity of the human person and a positive obligation to
take action to protect human dignity. By way of example,
the duty to protect may require States to adopt legislation
proscribing activities of third parties in circumstances that
threaten a violation of the principle of respect for human
dignity. The Commission considered that an obligation to
“protect” should be commensurate with the legal obligations
borne by the respective actors addressed in the provision.
An affected State therefore holds the primary role
in the protection of human dignity, by virtue of its primary
role in the direction, control, coordination and supervision
of disaster relief assistance, as reflected in draft article 10,
paragraph 2. Furthermore, each State shall be guided by
the imperative to respect and protect the inherent dignity
of the human person when taking measures to reduce the
risk of disasters, as contemplated in draft article 9.
(7) The generic reference at the end of the provision to
“in the event of disasters”, which is the same formulation
used in draft article 1, reflects the general scope of the
draft articles, which includes disaster risk reduction.
Article 5. Human rights
Persons affected by disasters are entitled to the respect
for and protection of their human rights in accordance
with international law.
Commentary
(1) Draft article 5 reflects the broad entitlement to
human rights protection held by those persons affected by
disasters. It also serves as a reminder of the duty of States
to ensure compliance with all relevant human rights obligations
applicable both during the disaster and the predisaster
phase. The Commission recognizes an intimate
connection between human rights and the principle of
human dignity reflected in draft article 4, reinforced by
the close proximity of the two draft articles.
(2) The general reference to “human rights” encompasses
human rights obligations expressed in relevant
international agreements and those in customary international
law. Best practices for the protection of human
rights included in non-binding texts at the international
level, including, inter alia, the Inter-Agency Standing
Committee Operational Guidelines on the Protection of
Persons in Situations of Natural Disasters,59 as well as
the Guiding Principles on Internal Displacement,60 serve
57 E/CN.4/1998/53/Add.2, annex, principle 26 (noting, inter alia,
that “[p]ersons engaged in humanitarian assistance, their transport and
supplies shall be respected and protected”).
58 Adopted by the Council of the International Institute of Humanitarian
Law in April 1993: principle 10, noting that “[h]umanitarian assistance
can, if appropriate, be made available by way of ‘humanitarian
corridors’ which should be respected and protected by the competent
authorities of the parties involved and if necessary by the United Nations
authority” (International Review of the Red Cross, No. 297 (November–
December 1993), p. 519).
59 Inter-Agency Standing Committee, IASC Operational Guidelines
on the Protection of Persons in Situations of Natural Disasters (Washington,
D.C., The Brookings–Bern Project on Internal Displacement, 2011).
60 See footnote 57 above.
to contextualize the application of existing human rights
obligations to the specific situation of disasters. Protection
under national law (such as that provided in the constitutional
law of many States) is also envisaged. The formulation
adopted by the Commission indicates the broad field
of human rights obligations, without seeking to specify,
add to or qualify those obligations.
(3) As clarified in the commentary to draft article 1, at
paragraph (3), the scope ratione personae of the draft articles
covers the activities of States and international organizations,
including regional integration organizations,
and other entities enjoying specific international legal
competence in the provision of disaster relief assistance.
The Commission recognizes that the scope and content of
an obligation to protect the human rights of those persons
affected by disasters will vary considerably among those
actors. The neutral phrasing adopted by the Commission
should be read in light of an understanding that distinct
obligations will be held by affected States, assisting States
and various other assisting actors, respectively.
(4) The draft article recognizes the entitlement of affected
persons to “the respect for and protection of” their
human rights, which continue to apply in the context of
disasters. The phrase tracks that found in draft article 4,
on human dignity, thereby further confirming the linkage
between the two provisions. The reference to the concept
of “protection”, commonly found in existing international
instruments for the protection of human rights,
is intended, together with “respect”, as a holistic formula
describing the nature and extent of the obligations upon
States, and is to be read in light of the reference to “full
respect for their rights” in draft article 2. Hence, States’
obligations are not restricted to avoiding interference with
people’s rights (“respect”), but may extend, as required by
the rules in question, to “protection”61 of their rights by,
inter alia, adopting a number of measures varying from
passive non-interference to active ensuring of the satisfaction
of individual needs, all depending on the concrete
circumstances. In the light of the purpose of the draft articles,
set out in draft article 2, such measures also extend
to the prevention and avoidance of conditions that might
lead to the violation of human rights.62
(5) 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.
(6) A particularly relevant right is the right to life, as
recognized in article 6, paragraph 1, of the International
Covenant on Civil and Political Rights, if a State is refusing
to adopt positive measures to prevent or respond to
disasters that cause loss of life.63 It was also understood
that some of the relevant rights are economic and social
61 See European Court of Human Rights (ECHR), Budayeva and
Others v. Russia, Nos. 15339/02, 21166/02, 20058/02, 11673/02 and
15343/02, ECHR 2008 (extracts).
62 See, for example, the Guiding Principles on Internal Displacement
(footnote 57 above), principle 5.
63 See also the Inter-Agency Standing Committee Operational
Guidelines on Human Rights and Natural Disasters, 2006 (A/
HRC/4/38/Add.1, annex), and paras. (2) and (3) of the commentary to
draft article 6.
Protection of persons in the event of disasters 35
rights, which States parties to the International Covenant
on Economic, Social and Cultural Rights, and other applicable
conventions, have an obligation to realize progressively,
including those which provide minimum core
obligations (in relation to the provision of essential foodstuffs,
essential health care, basic shelter, and housing
and education for children) and which continue even in
the context of a disaster. Other applicable rights include,
inter alia, the right to receive humanitarian assistance; the
rights of particularly vulnerable groups (as anticipated in
draft article 6) to have their special protection and assistance
needs taken into account; the right of communities to
have a voice in the planning and execution of risk reduction,
response and recovery initiatives; and the right of
all persons displaced by disasters to non-discriminatory
assistance in obtaining durable solutions to their displacement.
References to specific rights are also to be found in
some of the commentaries to other draft articles.64
(7) The draft article intentionally leaves open the question
of how rights are to be enforced to the relevant
rules of international law themselves. It is understood
that there is often an implied degree of discretion in the
application of rights, conditioned by the severity of the
disaster, depending on the relevant rules recognizing or
establishing the rights in question. Furthermore, the Commission
considered that the reference to “human rights”
incorporates both the rights and the limitations that exist
in the sphere of international human rights law. The reference
to “human rights” is, accordingly, to the whole of
international human rights law, including in particular its
treatment of derogable and non-derogable rights. As such,
the provision contemplates an affected State’s right of suspension
or derogation where recognized under existing
international agreements, which is also confirmed by the
concluding phrase “in accordance with international law”.
(8) The concluding reference to “in accordance with
international law” also serves to recall that there may be
other rules of international law, such as those dealing with
refugees and internally displaced persons, which may
have a bearing on the rights of persons affected by disasters,
a possibility also envisaged in draft article 18.
Article 6. Humanitarian principles
Response to disasters shall take place in accordance
with the principles of humanity, neutrality and
impartiality, and on the basis of non-discrimination,
while taking into account the needs of the particularly
vulnerable.
Commentary
(1) Draft article 6 establishes the key humanitarian principles
relevant to the protection of persons in the event
of disasters. The Commission did not find it necessary to
determine whether these principles are also general principles
of international law and noted that the principles do
not apply to the exclusion of other relevant principles of
international law. The draft article recognizes the significance
of these principles to the provision of disaster relief
64 See, for example, paras. (4) and (5) of the commentary to draft
article 11, below.
assistance, as well as in disaster risk reduction activities,
where applicable.
(2) The principles of humanity, neutrality and impartiality
are core principles recognized as foundational to
humanitarian assistance.65 These principles are likewise
fundamental to applicable laws in disaster relief efforts.
By way of example, the General Assembly, in its resolution
46/182, notes that “[h]umanitarian assistance must
be provided in accordance with the principles of humanity,
neutrality and impartiality.”66
(3) The principle of humanity stands as the cornerstone
of the protection of persons in international law. Situated
as an element both of international humanitarian law and
international human rights law, it informs the development
of laws regarding the protection of persons in the
event of disasters. Within the field of international humanitarian
law, the principle is most clearly expressed
in the requirement of humane treatment in common article
3 of the Geneva Conventions for the protection of war
victims.67 However, as the International Court of Justice
affirmed in the Corfu Channel case (merits), among general
and well-recognized principles are “elementary considerations
of humanity, even more exacting in peace
than in war”.68 Pictet’s commentary on the principles of
the Red Cross attributes three elements to the principle of
humanity, namely, to prevent and alleviate suffering, to
protect life and health, and to assure respect for the individual.
69 In the specific context of disaster relief, the Oslo
Guidelines and the Mohonk Criteria affirm that the principle
of humanity requires that “[h]uman suffering [must]
be addressed wherever it is found”.70
(4) While the principle of neutrality is rooted in the law
of armed conflict, the principle is nonetheless applicable
in other branches of the law. In the context of humanitarian
assistance, the principle of neutrality requires that
the provision of assistance be independent of any given
political, religious, ethnic or ideological context. The
Oslo Guidelines and the Mohonk Criteria both affirm
that the assistance should be provided “without engaging
in hostilities or taking sides in controversies of a
political, religious or ideological nature”.71 As such, the
principle of neutrality indicates the apolitical nature of
disaster response and affirms that humanitarian activities
may not be used for purposes other than responding to
65 See discussion in the memorandum by the Secretariat on the protection
of persons in the event of disasters (A/CN.4/590 [and Add.1–3];
footnote 14 above), para. 11.
66 Annex, para. 2.
67 See article 3, para. 1 (noting that “[p]ersons taking no active part
in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria”).
68 Corfu Channel, Judgment of 9 April 1949, I.C.J. Reports 1949,
p. 4, at p. 22.
69 J. Pictet, The Fundamental Principles of the Red Cross proclaimed
by the Twentieth International Conference of the Red Cross,
Vienna, 1965: Commentary (Geneva, Henry Dunant Institute, 1979),
pp. 21–27; also available from www.icrc.org.
70 Oslo Guidelines (see footnote 30 above), para. 20; Mohonk Criteria
(see footnote 56 above), p. 196.
71 Ibid.
36 Report of the International Law Commission on the work of its sixty-eighth session
the disaster at hand. The principle ensures that the interests
of those persons affected by disasters are the primary
concern of the affected State and any other relevant
actors in disaster response. Respect for the principle of
neutrality is central to facilitating the achievement of an
adequate and effective response to disasters, as outlined
in draft article 2.
(5) The principle of impartiality encompasses three principles:
non-discrimination, proportionality and impartiality
proper. For reasons discussed below, the principle of
non-discrimination is articulated by the Commission not
merely as an element of draft article 6, but also as an autonomous
principle of disaster response. Non-discrimination
is directed towards the removal of objective grounds
for discrimination among individuals, such that the provision
of assistance to affected persons is guided solely by
their needs. The principle of proportionality stipulates that
the response to a disaster be proportionate to the scope of
that disaster and the needs of affected persons. The principle
also acts as a distributive mechanism, enabling the
provision of assistance to be delivered with attention given
to the most urgent needs. Impartiality proper reflects the
principle that no subjective distinctions be drawn among
individuals in the response to disasters. The commentary
to the Protocol additional to the Geneva Conventions of
12 August 1949, and relating to the protection of victims
of international armed conflicts (Protocol I) thus conceptualizes
impartiality as “a moral quality which must be
present in the individual or institution called upon to act
for the benefit of those who are suffering”.72 By way of
example, the draft International Guidelines for Humanitarian
Assistance Operations provide that “[h]umanitarian
assistance should be provided on an impartial basis
without any adverse distinction to all persons in urgent
need”.73 As a whole, the principle of impartiality requires
that responses to disasters be directed towards full respect
for and fulfilment of the needs of those affected by disasters
in a manner that gives priority to the needs of the
particularly vulnerable.
(6) The principle of non-discrimination, applicable also
in the context of disaster risk reduction, reflects the inherent
equality of all persons and the determination that no
adverse distinction may be drawn between them. Prohibited
grounds for discrimination are non-exhaustive
and include ethnic origin, sex, nationality, political opinions,
race, religion and disability.74 The Commission
72 Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary
on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949, Geneva, ICRC and Martinus Nijhoff, 1987,
para. 2800 (paragraph 2801 of the same commentary includes a footnote
citing the “Proclamation of the Fundamental Principles of the Red
Cross”, adopted by resolution VIII of the Twentieth International Conference
of the Red Cross (Vienna, 1965)); and Pictet, The Fundamental
Principles of the Red Cross … (see footnote 69 above), pp. 33–51.
73 P. MacAlister-Smith, International Guidelines for Humanitarian
Assistance Operations (Heidelberg, Max Planck Institute for Comparative
Public Law and International Law, 1991), p. 4, para. 6 (a).
74 See, inter alia, the 1949 Geneva Conventions for the protection
of war victims, common art. 3, para. 1; the Universal Declaration of
Human Rights (footnote 38 above), art. 2; the International Covenant
on Civil and Political Rights, art. 2, para. 1; and the International Covenant
on Economic, Social and Cultural Rights, art. 2, para. 2. See also
the Convention on the Rights of Persons with Disabilities, art. 5, and
the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, art. 7.
determined that non-discrimination should be referred to
as an autonomous principle in the light of its importance
to the topic at hand. Such an approach has also been taken
by the Institute of International Law in its 2003 resolution
on humanitarian assistance, which stipulates that the offer
and distribution of humanitarian assistance shall occur
“without any discrimination on prohibited grounds”.75
The IDRL Guidelines likewise specify that assistance
be provided to disaster-affected persons without “any
adverse distinction (such as in regards to nationality, race,
ethnicity, religious beliefs, class, gender, disability, age
and political opinions)”.76
(7) The principle of non-discrimination is not to be taken
as excluding the prospect of “positive discrimination” as
appropriate. The phrase “while taking into account the
needs of the particularly vulnerable” in draft article 6 reflects
this position. The term “vulnerable” encompasses
both groups and individuals. For this reason, the neutral
expression “vulnerable” was preferred to either “vulnerable
groups” or “vulnerable persons”. The qualifier “particularly”
was used in recognition of the fact that those
affected by disaster are by definition vulnerable. The specific
phrasing of “particularly vulnerable” is drawn from
Part I, section 4, paragraph 3 (a), of the IDRL Guidelines,
which refer to the special needs of “women and particularly
vulnerable groups, which may include children, displaced
persons, the elderly, persons with disabilities, and
persons living with HIV and other debilitating illnesses”.77
The qualifier is also mirrored in the resolution on humanitarian
assistance adopted by the Institute of International
Law, which refers to the requirement to take into account
the needs of the “most vulnerable”.78 Similarly, the General
Assembly, in its resolution 69/135 of 12 December
2014, requested:
Member States, relevant humanitarian organizations of the
United Nations system and other relevant humanitarian actors to ensure
that all aspects of humanitarian response, including disaster preparedness
and needs assessments, take into account the specific humanitarian
needs and vulnerabilities of all components of the affected population,
in particular girls, boys, women, older persons and persons with disabilities,
including in the design and implementation of disaster risk
reduction, humanitarian and recovery programming and post-humanitarian
emergency reconstruction, and in this regard encourage[d] efforts
to ensure gender mainstreaming … 79
The Commission decided against including a list of vulnerable
groups within the draft article itself in recognition
of the relative nature of vulnerability. What was important
was less a fixed iteration of particularly vulnerable subgroups
of individuals within the broader body of persons
affected, or potentially affected, by a disaster, and more
a recognition that the principle of non-discrimination includes
within it the positive obligation to give specific
attention to the needs of the particularly vulnerable. The
term “particularly vulnerable” is deliberately open-ended
to include not only the categories of individuals usually
associated with the concept, as mentioned above, but
75 Resolution on humanitarian assistance (see footnote 21 above),
art. II, para. 3.
76 IDRL Guidelines (see footnote 20 above), Part I, sect. 4,
para. 2 (b).
77 Ibid., Part I, sect. 4, para. 3 (a).
78 Resolution on humanitarian assistance (see footnote 21 above),
art. II, para. 3.
79 Para. 32.
Protection of persons in the event of disasters 37
also other possible individuals that might find themselves
being particularly vulnerable in the wake of a disaster,
such as non-nationals.
(8) The Commission understood the reference to “taking
into account” in a broad sense, so as also to cover,
inter alia, accessibility of information and community
participation, including engagement of vulnerable groups
in the design, implementation, monitoring and evaluation
of assistance provided in the event of a disaster, as well as
in preparing for the possibility of a disaster.
(9) The Commission was cognizant of the fact that disasters
frequently affect women, girls, boys and men differently.
In many contexts, gender inequalities constrain the
influence and control of women and girls over decisions
governing their lives as well as their access to resources
such as finance, food, agricultural inputs, land and property,
technologies, education, health, secure housing and
employment. They are often disproportionately affected
and exposed to risks, including increased loss of life and
livelihoods and gender-based violence, during and in the
aftermath of disasters. It is increasingly recognized that
women and girls—like men and boys—possess skills and
capacity to prepare for, respond to and recover from crisis,
as actors and partners both in disaster risk reduction
and in humanitarian action. The capacity and knowledge
of women and girls plays an important part in individual
as well as community resilience. The significance of taking
a gender-based approach to disaster risk management
has been recognized, including in both the Hyogo Framework
for Action 2005–2015: Building the Resilience of
Nations and Communities to Disasters80 and the Sendai
Framework.81
Article 7. Duty to cooperate
In the application of the present draft articles, States
shall, as appropriate, cooperate among themselves,
with the United Nations, with the components of the
International Red Cross and Red Crescent Movement,
and with other assisting actors.
Commentary
(1) Effective international cooperation is indispensable
for the protection of persons in the event of disasters. The
duty to cooperate is well established as a principle of international
law and can be found in numerous international
instruments. The Charter of the United Nations enshrines
it, not least with reference to the humanitarian context in
80 Report of the World Conference on Disaster Reduction, Kobe,
Hyogo, Japan, 18–22 January 2005 (A/CONF.206/6 and Corr.1),
chap. I, resolution 2, para. 13 (d): “A gender perspective should be integrated
into all disaster risk management policies, plans and decisionmaking
processes, including those related to risk assessment, early
warning, information management, and education and training”.
81 Sendai Framework for Disaster Risk Reduction 2015–2030 (see
footnote 19 above), para. 19 (d): “Disaster risk reduction requires an
all-of-society engagement and partnership. It also requires empowerment
and inclusive, accessible and non-discriminatory participation,
paying special attention to people disproportionately affected by disasters,
especially the poorest. A gender, age, disability and cultural perspective
should be integrated in all policies and practices, and women
and youth leadership should be promoted. In this context, special attention
should be paid to the improvement of organized voluntary work
of citizens”.
which the protection of persons in the event of disasters
places itself. Article 1, paragraph 3, of the Charter clearly
spells it out as one of the purposes of the Organization:
To achieve international cooperation in solving international problems
of an economic, social, cultural, or humanitarian character, and
in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language,
or religion …
Articles 55 and 56 of the Charter elaborate on Article 1,
paragraph 3, with respect to international cooperation.
Article 55 of the Charter reads:
With a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations
based on respect for the principle of equal rights and self-determination
of peoples, the United Nations shall promote:
(a) higher standards of living, full employment, and conditions of
economic and social progress and development;
(b) solutions of international economic, social, health, and related
problems; and international cultural and educational cooperation; and
(c) universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language,
or religion.
Article 56 of the Charter reads:
All Members pledge themselves to take joint and separate action in
cooperation with the Organization for the achievement of the purposes
set forth in Article 55.
The general duty to cooperate was reiterated as one of
the principles of international law in the Declaration on
Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with
the Charter of the United Nations in the following terms:
States have the duty to co-operate with one another, irrespective of
the differences in their political, economic and social systems, in the
various spheres of international relations, in order to maintain international
peace and security and to promote international economic stability
and progress, the general welfare of nations and international cooperation
free from discrimination based on such differences.82
(2) Cooperation takes on special significance with regard
to international human rights obligations that have
been undertaken by States. The International Covenant
on Economic, Social and Cultural Rights refers explicitly
to international cooperation as a means of realizing the
rights contained therein.83 This has been reiterated by the
Committee on Economic, Social and Cultural Rights in
its general comments relating to the implementation of
specific rights guaranteed by the Covenant.84 International
cooperation gained particular prominence in the
2006 Convention on the Rights of Persons with Disabilities,
which reaffirms existing international obligations
82 General Assembly resolution 2625 (XXV) of 24 October 1970,
annex.
83 Arts. 11, 15, 22 and 23.
84 See, in particular, general comment No. 2 (Official Records of
the Economic and Social Council, 1990, Supplement No. 3 (E/1990/23-
E/C.12/1990/3), annex III); general comment No. 3 (ibid., 1991, Supplement
No. 3 (E/1991/23-E/C.12/1990/8), annex III); general comment
No. 7 (ibid., 1998, Supplement No. 2 (E/1998/22-E/C.12/1997/10),
annex IV); general comment No. 14 (ibid., 2001, Supplement No. 2
(E/2001/22-E/C.12/2000/21), annex IV); and general comment No. 15
(ibid., 2003, Supplement No. 2 (E/2003/22-E/C.12/2002/13), annex IV).
38 Report of the International Law Commission on the work of its sixty-eighth session
in relation to persons with disabilities “in situations of
risk, including situations of armed conflict, humanitarian
emergencies and the occurrence of natural disasters”.85
(3) With regard to cooperation in the context of disaster
relief assistance, the General Assembly recognized, in
resolution 46/182, that:
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 … 86
Furthermore, with regard to cooperation in the context
of risk reduction, the Sendai Framework’s guiding principles,
paragraph 19 (a), indicate that: “Each State has the
primary responsibility to prevent and reduce disaster risk,
including through international, regional, subregional,
transboundary and bilateral cooperation.”87 In addition,
there exist a vast number of instruments of specific relevance
to the protection of persons in the event of disasters,
which demonstrate the importance of international
cooperation in combating the effects of disasters. Not
only are these instruments in themselves expressions of
cooperation, they generally reflect the principle of cooperation
relating to specific aspects of disaster governance
in the text of the instrument. Typically in bilateral
agreements, this has been reflected in the title given to
the instrument, denoting either cooperation or (mutual)
assistance.88 Moreover, the duty to cooperate, in the vast
majority of cases, is framed as one of the objectives of the
instrument or is attributed positive effects towards their
attainment. Again, the Tampere Convention is of relevance
in this respect as it indicates in paragraph 21 of its
preamble that the parties wish “to facilitate international
cooperation to mitigate the impact of disasters”. Another
example can be found in an agreement between France
and Malaysia:
Convinced of the need to develop cooperation between the competent
organs of the two Parties in the field of the prevention of grave risks
and the protection of populations, property and the environment … 89
(4) Cooperation, however, should not be interpreted as
diminishing the primary role of the affected State as provided
for in draft article 10, paragraph 2. Furthermore,
the principle of cooperation is to be understood also as
being complementary to the duty of the authorities of the
affected State to take care of the persons affected by natural
disasters and similar emergencies occurring in its
85 Art. 11.
86 Annex, para. 5.
87 Sendai Framework (see footnote 19 above).
88 Annex II to the memorandum by the Secretariat on the protection
of persons in the event of disasters (A/CN.4/590 and Add.1–3; see footnote
14 above) contains a comprehensive list of relevant instruments.
For a further typology of instruments for the purposes of international
disaster response law, see H. Fischer, “International disaster response
law treaties: trends, patterns and lacunae”, in IFRC, International Disaster
Response Laws, Principles and Practice: Reflections, Prospects
and Challenges (Geneva, 2003), p. 24.
89 Agreement between the Government of the French Republic
and the Government of Malaysia on Cooperation in the Field of Disaster
Prevention and Management and Civil Security, Paris, 25 May
1998, Journal officiel de la République française, 9 December 1998,
p. 18519, preambular paragraph 4.
territory, or in territory under its jurisdiction or control
(draft article 10, paragraph 1).90
(5) A key feature of activity in the field of disaster relief
assistance is international cooperation not only among
States, but also with intergovernmental and non-governmental
organizations. The importance of their role has
been recognized for some time. In its resolution 46/182,
the General Assembly confirmed that:
Intergovernmental and non-governmental organizations working
impartially and with strictly humanitarian motives should continue to
make a significant contribution in supplementing national efforts.91
In its resolution 2008/36 of 25 July 2008, the Economic
and Social Council recognized:
the benefits of engagement of and coordination with relevant humanitarian
actors to the effectiveness of humanitarian response,
and encourage[d] the United Nations to continue to pursue efforts to
strengthen partnerships at the global level with the International Red
Cross and Red Crescent Movement, relevant humanitarian non-governmental
organizations and other participants of the Inter-Agency
Standing Committee … 92
(6) Draft article 7 recognizes the central importance of
international cooperation to international disaster relief
assistance activities, as well as in the reduction of disaster
risk. It reflects a legal obligation for the various parties
concerned. The nature of the obligation of cooperation
may vary, depending on the actor and the context in which
assistance is being sought and offered. The nature of the
legal obligation to cooperate is dealt with in specific provisions
(hence the opening phrase “[i]n the application of
the present draft articles”), particularly draft articles 8, on
response to disasters, and 9, concerning the reduction of
the risk of disasters. The Commission inserted the phrase
“as appropriate”, which qualifies the entire draft article,
both as a reference to existing specific rules that establish
the nature of the obligation to cooperate among the
various actors mentioned in the draft article, and as an
indication of a degree of latitude in determining, on the
ground, when cooperation is or is not “appropriate”. It
does not qualify the level of cooperation being envisaged,
but rather the actors with whom the cooperation should
take place.
(7) In addition to cooperation among States, draft article
7 also envisages cooperation with assisting actors.
Express reference is made to cooperation with the
United Nations, in recognition of the central role played
by the Organization in the coordination of relief assistance.
OCHA enjoys a special mandate, in accordance
with General Assembly resolution 46/182, to assist in the
coordination of international assistance. Under that resolution,
the Assembly established the high-level position of
Emergency Relief Coordinator as the single United Nations
focal point for complex emergencies as well as
for natural disasters. The Emergency Relief Coordinator
processes requests from affected Member States for
emergency assistance requiring a coordinated response,
serves as a central focal point concerning United Nations
90 See also General Assembly resolution 46/182, annex, para. 4, and
the Hyogo Declaration, Report of the World Conference on Disaster
Reduction (footnote 80 above), chap. I, resolution 1, para. 4.
91 Annex, para. 5.
92 Para. 7.
Protection of persons in the event of disasters 39
emergency relief operations and provides consolidated information,
including early warning on emergencies.
(8) The reference to “other assisting actors” imports the
definition contained in draft article 3, subparagraph (d),
which includes competent intergovernmental organizations
and relevant non-governmental organizations or
entities. The Commission felt it appropriate to single
out one such group of entities, namely the components
of the International Red Cross and Red Crescent Movement,
in recognition of the important role played by the
Movement in international cooperation in the context of
the situations covered by the draft articles. The reference
to the components of the International Red Cross and Red
Crescent Movement includes the ICRC as a consequence
of the fact that the draft articles may also apply in complex
emergencies involving armed conflict.93 As indicated
in paragraph (18) of the commentary to draft article 3, the
category of “other assisting actors” is intentionally broad.
In the reduction of the risk of disasters, cooperation with
other actors is enshrined in the Sendai Framework’s paragraph
19 (b), which indicates that “[d]isaster risk reduction
requires that responsibilities be shared by central
Governments and relevant national authorities, sectors
and stakeholders”, and paragraph 19 (d), which indicates
that “[d]isaster risk reduction requires an all-of-society
engagement and partnership”.94
(9) The forms of cooperation in the context of the
response phase are covered by draft article 8, and in risk
reduction by draft article 9.
Article 8. Forms of cooperation in the response
to disasters
Cooperation in the response to disasters includes
humanitarian assistance, coordination of international
relief actions and communications, and making
available relief personnel, equipment and goods, and
scientific, medical and technical resources.
Commentary
(1) Draft article 8 seeks to clarify the various forms
which cooperation between affected States, assisting
States and other assisting actors may take in the context
of response to disasters. Cooperation is enshrined in general
terms in draft article 7 as a guiding principle and fundamental
duty with regard to the present topic, as it plays
a central role in disaster relief efforts. The essential role
of cooperation lends itself to a more detailed enunciation
of the kinds of cooperation relevant in this context. The
present draft article is therefore designed to elaborate further
on the meaning of draft article 7, without creating any
additional legal obligations.
(2) The list of forms of cooperation in draft article 8—
humanitarian assistance, coordination of international
relief actions and communications, and making available
relief personnel, relief equipment and goods, and scientific,
medical and technical resources—is loosely based
on the second sentence of paragraph 4 of article 17 of
93 See para. (8) of the commentary to draft article 18, below.
94 Sendai Framework (see footnote 19 above).
the articles on the law of transboundary aquifers. That
paragraph explains the general obligation to cooperate in
article 7 of those articles by describing the cooperation
necessary in emergency situations. The second sentence
of paragraph 4 of article 17 reads:
Cooperation may include coordination of international emergency
actions and communications, making available emergency response
personnel, emergency response equipment and supplies, scientific and
technical expertise and humanitarian assistance.95
As this provision had been specifically drafted with reference
to a related context—namely, the need for cooperation
in the event of an emergency affecting a transboundary
aquifer—the Commission felt that its language was a
useful starting point for the drafting of draft article 8.
However, the text of draft article 8 was tailored to appropriately
reflect the context and purpose of the present
draft articles and to ensure that it took into account the
major areas of cooperation dealt with in international instruments
addressing disaster response. Similar language
is contained in the ASEAN Declaration on Mutual Assistance
on Natural Disasters, of 26 June 1976, which states
that
Member Countries shall, within their respective capabilities, cooperate
in the: (a) improvement of communication channels among themselves
as regards disaster warning; (b) exchange of experts and trainees; (c)
exchange of information and documents; and (d) dissemination of medical
supplies, services and relief assistance.96
In a similar vein, in explaining the areas in which it would
be useful for the United Nations to adopt a coordinating
role and encourage cooperation, General Assembly resolution
46/182 calls for coordination with regard to “specialized
personnel and teams of technical specialists, as
well as relief supplies, equipment, and services …”97
(3) The beginning of draft article 8 confirms that the
forms of cooperation being referred to are those relevant
in the response phase following the onset of a disaster
or in the post-disaster recovery phase. They are by
their nature concerned with the provision or facilitation
of relief assistance to affected persons. Cooperation in
the pre-disaster phase, including disaster prevention, preparedness
and mitigation, is dealt with in draft article 9.
At the same time, draft article 8, which is to be read in
the light of the other draft articles, is oriented towards the
purpose of the topic as a whole as stated in draft article 2,
namely “to facilitate the adequate and effective response
to disasters … so as to meet the essential needs of the
persons concerned, with full respect for their rights”. In
the context of the present topic, the ultimate goal of the
duty to cooperate, and therefore of any of the forms of cooperation
referred to in draft article 8, is the protection of
persons affected by disasters.
(4) While the draft article highlights specific forms of
cooperation, the list is not meant to be exhaustive, but is
instead illustrative of the principal areas in which cooperation
may be appropriate according to the circumstances.
95 General Assembly resolution 63/124 of 11 December 2008, annex;
for the commentary thereto, see Yearbook … 2008, vol. II (Part Two),
pp. 22 et seq., para. 54.
96 ASEAN Documents Series 1976. See also Malaya Law Review,
vol. 20 (1978), p. 411.
97 Annex, para. 27.
40 Report of the International Law Commission on the work of its sixty-eighth session
The non-exhaustive nature of the list is emphasized by
the use of the word “includes” and its equivalent in the
other official languages. The Commission determined
that the highlighted forms are the main areas in which cooperation
may be warranted and that the forms are broad
enough to encapsulate a wide variety of cooperative activities.
Cooperation may, therefore, include the activities
mentioned, but is not limited to them; other forms of cooperation
not specified in the present draft article are not
excluded, such as: financial support; technology transfer
covering, among other things, technology relating to satellite
imagery; training; information-sharing; joint simulation
exercises and planning; and undertaking needs
assessments and situation overview.
(5) As draft article 8 is illustrative of possible forms of
cooperation, it is not intended to create additional legal
obligations for either affected States or other assisting
actors to engage in certain activities. Notwithstanding
this, cooperation may also take place in the context of
existing obligations. For example, an affected State may
have a duty to inform or notify, at the onset of a disaster,
other States and other assisting actors that have a mandated
role to gather information, provide early warning
and coordinate assistance provided by the international
community. Such duty was envisaged in article 17 of the
articles on prevention of transboundary harm from hazardous
activities, adopted in 2001, which provides:
The State of origin shall, without delay and by the most expeditious
means at its disposal, notify the State likely to be affected of an emergency
concerning an activity within the scope of the present articles and
provide it with all relevant and available information.98
(6) The forms that cooperation may take will necessarily
depend upon a range of factors, including, inter alia, the
nature of the disaster, the needs of the affected persons
and the capacities of the affected State and other assisting
actors involved. As with the principle of cooperation
itself, the forms of cooperation in draft article 8 are
meant to be reciprocal in nature, as cooperation is not a
unilateral act, but rather one that involves the collaborative
behaviour of multiple parties.99 The draft article is
therefore not intended to be a list of activities in which
an assisting State may engage, but rather areas in which
harmonization of efforts through consultation on the part
of both the affected State and other assisting actors may
be appropriate.
(7) Cooperation in the areas mentioned must be in conformity
with the other draft articles. For example, as with
draft article 7, the forms of cooperation touched upon in
draft article 8 must be consistent with draft article 10,
which grants the affected State the primary role in disaster
relief assistance, as a consequence of its sovereignty.
Cooperation must also be undertaken in accordance with
the requirement of consent of the affected State to external
assistance (draft article 13), as well as the recognition
that the affected State may place appropriate conditions
on the provision of external assistance, particularly with
respect to the identified needs of persons affected by a
disaster and the quality of the assistance (draft article 14).
98 General Assembly resolution 62/68 of 6 December 2007, annex;
for the commentary thereto, see Yearbook … 2001, vol. II (Part Two)
and corrigendum, pp. 148 et seq., para. 98.
99 See para. (6) of the commentary to draft article 7, above.
Cooperation is also related to draft article 15, which recognizes
the role of the affected State in the facilitation of
prompt and effective assistance to persons affected by a
disaster. As such, and since draft article 8 does not create
any additional legal obligations, the relationship between
the affected State, assisting State, and other assisting
actors with regard to the above-mentioned forms of cooperation
will be regulated in accordance with the other
provisions of the present draft articles.
(8) Humanitarian assistance is intentionally placed first
among the forms of cooperation mentioned in draft article
8, as the Commission considers this type of cooperation
of paramount importance in the context of disaster
relief. The second category—coordination of international
relief actions and communications—is intended to
be broad enough to cover most cooperative efforts in the
disaster relief phase, and may include the logistical coordination,
supervision and facilitation of the activities and
movement of disaster response personnel and equipment
and the sharing and exchange of information pertaining
to the disaster. Though information exchange is often referred
to in instruments that emphasize cooperation in
the pre-disaster phase as a preventive mode to reduce the
risk of disasters,100 communication and information is
also relevant in the disaster response phase to monitor the
developing situation and to facilitate the coordination of
relief actions among the various actors involved. A number
of instruments deal with communication and information-
sharing in the disaster relief context.101 The mention
of “making available relief personnel, equipment and
goods, and scientific, medical and technical resources”
refers to the provision of any and all resources necessary
for disaster response operations. The reference to
“personnel” may entail the provision of and cooperation
among medical teams, search and rescue teams, engineers
and technical specialists, translators and interpreters, or
other persons engaged in relief activities on behalf of one
of the relevant actors—affected State, assisting State or
other assisting actors. The term “resources” covers scientific,
technical and medical expertise and knowledge as
well as equipment, tools, medicines or other objects that
would be useful for relief efforts.
Article 9. Reduction of the risk of disasters
1. Each State shall reduce the risk of disasters by
taking appropriate measures, including through legislation
and regulations, to prevent, mitigate, and prepare
for disasters.
2. Disaster risk reduction measures include the
conduct of risk assessments, the collection and dissemination
of risk and past loss information, and the
installation and operation of early warning systems.
100 See, for example, the ASEAN Agreement, art. 18, para. 1.
101 See, for example, the Tampere Convention, art. 3 (calling for
“the deployment of terrestrial and satellite telecommunication equipment
to predict, monitor and provide information concerning natural
hazards, health hazards and disasters” and “the sharing of information
about natural hazards, health hazards and disasters among the States
Parties and with other States, non-State entities and intergovernmental
organizations, and the dissemination of such information to the public,
particularly to at-risk communities”); and the Oslo Guidelines (footnote
30 above), para. 54. See also discussion in the memorandum by
the Secretariat on the protection of persons in the event of disasters (A/
CN.4/590 [and Add.1–3]; footnote 14 above), paras. 158–173.
Protection of persons in the event of disasters 41
Commentary
(1) Draft article 9 deals with the duty to reduce the risk
of disasters. The draft article is composed of two paragraphs.
Paragraph 1 establishes the basic obligation to
reduce the risk of disasters by taking certain measures and
paragraph 2 provides an indicative list of such measures.
(2) As indicated in draft article 2, the reduction of the
risk of disasters falls within the purpose of the present
draft articles. The concept of disaster risk reduction has its
origins in a number of General Assembly resolutions and
has been further developed through the World Conference
on Natural Disaster Reduction held in Yokohama, Japan,
from 23 to 27 May 1994,102 the Hyogo Framework for
Action and the Sendai Framework, as well as several sessions
of the Global Platform for Disaster Risk Reduction.
(3) At the fourth session of the Global Platform for
Disaster Risk Reduction, in 2013, the concluding summary
by the Chair drew attention to the “growing recognition
that the prevention and reduction of disaster risk
is a legal obligation, encompassing risk assessments, the
establishment of early warning systems, and the right to
access risk information”.103 At the Third United Nations
World Conference on Disaster Risk Reduction, “States
also reiterated their commitment to address disaster risk
reduction and the building of resilience to disasters with
a renewed sense of urgency”.104 The Sendai Framework
indicated that “[i]t is urgent and critical to anticipate, plan
for and reduce disaster risk in order to more effectively
protect persons, communities and countries” and called
for “accountability for disaster risk creation … at all
levels.”105 Furthermore, the Sendai Framework stated, as a
principle, that “[e]ach State has the primary responsibility
to prevent and reduce disaster risk, including through
international, regional, subregional, transboundary and
bilateral cooperation”.106 Finally, with the aim of achieving
“[t]he substantial reduction of disaster risk and losses
in lives, livelihoods and health and in the economic, physical,
social, cultural and environmental assets of persons,
businesses, communities and countries”,107 the Sendai
Framework indicated that “the following goal must be
pursued: [p]revent new and reduce existing disaster risk
through the implementation of integrated and inclusive
economic, structural, legal, social, health, cultural, educational,
environmental, technological, political and institutional
measures that prevent and reduce hazard exposure
and vulnerability to disaster, increase preparedness for
response and recovery, and thus strengthen resilience.”108
102 Report of the World Conference on Natural Disaster Reduction,
Yokohama, 23–27 May 1994 (A/CONF.172/9), chap. I, resolution 1,
annex I: Yokohama Strategy for a Safer World: Guidelines for Natural
Diaster Prevention, Preparedness and Mitigation (available from www
.preventionweb.net/files/10996_N9437604.pdf).
103 United Nations Office for Disaster Risk Reduction, Proceedings
of the Fourth Session of the Global Platform for Disaster Risk Reduction,
Geneva, Switzerland, 19–23 May 2013: Invest Today for a Safer
Tomorrow, p. 13.
104 Sendai Framework (see footnote 19 above), preamble, para. 2
(footnote omitted). See Sendai Declaration in General Assembly resolution
69/283, annex I.
105 Sendai Framework (see footnote 19 above), paras. 5–6.
106 Ibid., para. 19 (a) (guiding principles).
107 Ibid., para. 16 (expected outcome).
108 Ibid., para. 17 (goal).
(4) The Commission bases itself on the fundamental
principles of State sovereignty and non-intervention and,
at the same time, draws on principles emanating from
international human rights law, including the obligations
undertaken by States to respect and protect human rights,
in particular the right to life. Protection entails a positive
obligation on States to take the necessary and appropriate
measures to prevent harm from impending disasters. This
is confirmed by the decisions of international tribunals,
notably the European Court of Human Rights judgments
in the Öneryıldız v. Turkey109 and Budayeva and Others v.
Russia110 cases, which affirmed the duty to take preventive
measures. In addition, draft article 9 draws inspiration
from a number of international environmental law
principles, including the “due diligence” principle.
(5) An important legal foundation for draft article 9
is the widespread practice of States reflecting their commitment
to reduce the risk of disasters. States and international
organizations have adopted multilateral, regional
and bilateral instruments concerned with reducing the
risk of disasters, including: the Paris Agreement (2015);
Transforming our world: the 2030 Agenda for Sustainable
Development (2015);111 the Addis Ababa Action Agenda
of the Third International Conference on Financing for
Development (2015);112 the SIDS Accelerated Modalities
of Action (SAMOA) Pathway (2014);113 the ASEAN
Agreement;114 the Beijing Action for Disaster Risk Reduction
in Asia (2005);115 the Delhi Declaration on Disaster
Risk Reduction in Asia (2007);116 the Kuala Lumpur Declaration
on Disaster Risk Reduction in Asia (2008);117 the
Incheon Declaration on Disaster Risk Reduction in Asia
and the Pacific (2010);118 the Incheon Regional Roadmap
and Action Plan on Disaster Risk Reduction through Climate
Change Adaptation in Asia and the Pacific,119 reaffirming
the Hyogo Framework for Action and proposing
Asian initiatives for climate change adaptation and disaster
risk reduction considering vulnerabilities in the region;
“The Way Forward: Climate and Disaster Resilient
Development in the Pacific” (meeting statement) of the
Pacific Platform for Disaster Risk Management (2014);120
the Framework of Cooperation on strengthening regional
cooperation among Disaster Management Authorities of
109 Öneryıldız v. Turkey [GC], No. 48939/99, ECHR 2004-XII.
110 Budayeva and Others v. Russia (see footnote 61 above).
111 General Assembly resolution 70/1 of 25 September 2015.
112 General Assembly resolution 69/313 of 27 July 2015, annex.
113 General Assembly resolution 69/15 of 14 November 2014, annex.
114 The ASEAN Agreement is the first international treaty concerning
disaster risk reduction to have been developed after the adoption
of the Hyogo Framework for Action.
115 Adopted at the Asian Conference on Disaster Risk Reduction,
Beijing, 27–29 September 2005. Available from www.ifrc.org/docs
/IDRL/Beijing_action_for_DRR%5B1%5D.pdf.
116 Adopted at the Second Asian Ministerial Conference on Disaster
Reduction, New Delhi, 7–8 November 2007.
117 Adopted at the Third Asian Ministerial Conference on Disaster
Risk Reduction, Kuala Lumpur, 2–4 December 2008. Available from
www.preventionweb.net/files/3089_KLDeclarationonDisasterRiskRe
ductioninAsia202008.pdf.
118 Adopted at the Fourth Asian Ministerial Conference on Disaster
Reduction, Incheon, Republic of Korea, 25–28 October 2010. Available
from www.preventionweb.net/files/16327_finalincheondeclaration1028.pdf.
119 See www.unisdr.org/files/20382_summaryof4hamcdrr.pdf.
120 Adopted at the sixth session of the Pacific Platform for Disaster
Risk Management, Suva, 2–4 June 2014 (see A/CONF.224/PC(I)/9).
42 Report of the International Law Commission on the work of its sixty-eighth session
the Central Asian and South Caucasus Region in the area
of disaster risk reduction (2015);121 the African Union’s
Africa Regional Strategy for Disaster Risk Reduction of
2004,122 which was followed by a programme of action
for its implementation (originally for the period between
2005 and 2010, but later extended to 2015);123 the East African
Community Disaster Risk Reduction and Disaster
Management Bill (2013);124 four sessions of the Africa
Regional Platform on Disaster Risk Reduction, the most
recent one being in 2013;125 the Yaoundé Declaration on
the Implementation of the Sendai Framework in Africa
(2015);126 the Arab Strategy for Disaster Risk Reduction
2020 (2010);127 the Sharm El Sheikh Declaration on Disaster
Risk Reduction (2014);128 the Asunción Declaration
“Guidelines towards a Regional Action Plan for the Implementation
of the Sendai Framework 2015–2030” (2016);129
the Aqaba Declaration on Disaster Risk Reduction in Cities
(2013);130 the Latin American Parliament Protocol on Disaster
Risk Management in Latin America and the Caribbean
(2013);131 the Guayaquil Communiqué of the Fourth
Session of the Regional Platform for Disaster Risk Reduction
in the Americas (2014);132 the Nayarit Communiqué
on Lines of Action to Strengthen Disaster Risk Reduction
in the Americas (2011);133 the Outcome of the European
Ministerial Meeting on Disaster Risk Reduction: Towards
a Post-2015 Framework for Disaster Risk Reduction—
Building the Resilience of Nations and Communities to
Disasters (2014);134 sixth annual meeting of the European
121 Adopted by the Regional Ministerial Meeting of Disaster Management
Authorities of Central Asian and South Caucasus Countries,
Bishkek, 30 January 2015. Available from www.preventionweb.net
/files/42374_frameworkofcooperationregionaldrrca.pdf.
122 Available from www.unisdr.org/files/4038_africaregionalstrat
egy1.pdf.
123 Extended Programme of Action for the Implementation of the
Africa Regional Strategy for Disaster Risk Reduction (2006–2015).
Available from www.unisdr.org/files/19613_bookletpoaenglish.pdf.
124 Available from www.unisdr.org/files/48230_eacdrrbill.pdf.
125 United Nations Office for Disaster Risk Reduction, “Africa seeks
united position on disaster risk reduction”, 13 February 2013. Available
from www.unisdr.org/archive/31224.
126 Adopted by the Fourth High-Level Meeting on Disaster Risk
Reduction, Yaoundé, 23 July 2015. Available from www.prevention
web.net/files/43907_43907yaoundedeclarationen.pdf.
127 Adopted by the Council of Arab Ministers Responsible for the
Environment at its twenty-second session, Cairo, 19–20 December
2010. Available from www.unisdr.org/files/18903_17934asdrrfinaleng
lishjanuary20111.pdf.
128 Adopted at the Second Arab Conference on Disaster Risk Reduction,
Sharm El Sheikh, Egypt, 14–16 September 2014. Available from
www.unisdr.org/files/42726_42726sharmdeclarationpublicationfin.pdf.
129 Adopted at the First Meeting of Ministers and High-Level Authorities
on the Implementation of the Sendai Framework for Disaster
Risk Reduction 2015–2030 in the Americas, Asunción, 8–9 June 2016.
Available from www.preventionweb.net/files/49235_asunciondeclara
tion2016.pdf.
130 Adopted at the First Arab Conference for Disaster Risk Reduction,
Aqaba, Jordan, 19–21 March 2013. Available from www.preven
tionweb.net/files/31093_aqabadeclarationenglishfinaldraft.pdf.
131 http://eird.org/americas/noticias/protocolo-sobre-gestion-del
-riesgo.pdf (Spanish only).
132 The fourth session was held in Guayaquil, Ecuador, 27–29 May
2014. Available from www.preventionweb.net/files/37662_commu
niqueguayaquilpr1428may14[1].pdf.
133 Adopted at the second session of the Regional Platform for Disaster
Risk Reduction in the Americas, Nayarit, Mexico, 15–17 March 2011.
Available from www.unisdr.org/files/18603_communiquenayarit.pdf.
134 Adopted at the European Ministerial Meeting, Milan, Italy, 8 July
2014 (see A/CONF.224/PC(I)/12).
Forum for Disaster Risk Reduction—2015–2020 Roadmap
for the Implementation of the Sendai Framework (2015);135
“Solidarity in Action”: Joint Statement of the Ministers
for Foreign Affairs of the South East Europe Cooperation
Process (2013);136 the European Union’s Civil Protection
Mechanism (2013);137 resolution 6, on strengthening legal
frameworks for disaster response, risk reduction and first
aid, adopted by the 32nd International Conference of the
Red Cross and Red Crescent (2015);138 and the European
Commission’s Action Plan on the Sendai Framework for
Disaster Risk Reduction 2015–2030 (2016).139
(6) Recognition of this commitment is further shown
by the incorporation by States of disaster risk reduction
measures into their national policies and legal frameworks.
A compilation of national progress reports on the
implementation of the Hyogo Framework for Action140
and other sources indicate that, as of 2016, 64 States
or areas reported having established specific policies
on disaster risk reduction, evenly spread throughout
all continents and regions, including the major hazardprone
locations. They are Algeria, Anguilla, Argentina,
Armenia, Bangladesh, the Plurinational State of Bolivia,
Brazil, the British Virgin Islands, Canada, Cape Verde,
Chile, Colombia, the Cook Islands, Costa Rica, Côte
d’Ivoire, Cuba, the Dominican Republic, Fiji, Finland,
Georgia, Germany, Ghana, Guatemala, Honduras, India,
Indonesia, Italy, Japan, Kenya, the Lao People’s Democratic
Republic, Lebanon, Madagascar, Malawi, Malaysia,
Maldives, the Marshall Islands, Mauritius, Mexico,
Mongolia, Morocco, Mozambique, Nepal, New Zealand,
Nicaragua, Nigeria, Norway, Panama, Paraguay, Peru,
Poland, Saint Kitts and Nevis, Saint Lucia, Samoa, Senegal,
Sri Lanka, Sweden, Switzerland, the Syrian Arab
Republic, Thailand, the former Yugoslav Republic of
Macedonia, the United Republic of Tanzania, the United
States of America, Vanuatu, and the Bolivarian Republic
of Venezuela. More recently, the United Nations Office
for Disaster Risk Reduction identified 93 States141 that
had adopted national platforms for disaster risk reduction,
which, in accordance with the Sendai Framework,
are government coordination forums composed of relevant
stakeholders aimed “to, inter alia, identify sectoral
and multisectoral disaster risk, build awareness and
knowledge of disaster risk through sharing and dissemination
of non-sensitive disaster risk information and data,
contribute to and coordinate reports on local and national
disaster risk, coordinate public awareness campaigns on
135 The sixth annual meeting took place in Paris, 7–9 October 2015.
Available from www.preventionweb.net/files/55096_55096efdrrroadm
ap20152020anditsacti.pdf.
136 Adopted by the Ministers in Ohrid, the former Yugoslav Republic
of Macedonia, 31 May 2013. Available from www.preventionweb.net
/files/31414_solidarityinactionjointstatement.pdf.
137 See Decision No. 1313/2013/EU of the European Parliament and
of the Council of 17 December 2013, Official Journal of the European
Union, L 347, 20 December 2013, p. 924.
138 The conference was held in Geneva, 8–10 December 2015.
Available from https://rcrcconference.org/app//uploads/2015/04/32IC
-Res6-legal-frameworks-for-disaster_EN.pdf.
139 See SWD(2016) 205 final/2 of 17 June 2016. Available from http://
ec.europa.eu/echo/sites/echo-site/files/sendai_swd_2016_205_0.pdf.
140 Hyogo Framework for Action, priority 1, core indicator 1.1. See
www.preventionweb.net/sendai-framework/Hyogo-Framework-for-
Action.
141 For a list of States that have adopted national platforms, see
www.undrr.org.
Protection of persons in the event of disasters 43
disaster risk, facilitate and support local multisectoral
cooperation (e.g. among local governments) and contribute
to the determination of and reporting on national
and local disaster risk management plans and all policies
relevant for disaster risk management”.142 Several countries
have adopted legislation specifically addressing disaster
risk reduction either as stand-alone legislation or as
part of a broader legal framework concerning both disaster
risk management and disaster response, including
Algeria,143 Cambodia,144 Cameroon,145 China,146 El
Salvador,147 Slovenia,148 the United States of America,149
Estonia,150 the Philippines,151 France,152 Georgia,153
Guatemala,154 Haiti,155 Hungary,156 India,157 Indonesia,158
Italy,159 Madagascar,160 Namibia,161 New Zealand,162
Pakistan,163 Peru,164 the Republic of Korea,165 the Dominican
Republic,166 South Africa167 and Thailand.168
142 Sendai Framework (footnote 19 above), para. 27 (g).
143 Act No. 04-20 of 25 December 2004 on Risk Prevention and Disaster
Management in the Framework of Sustainable Development.
144 Law on Disaster Management, No. NS/RKM/0715/007. Approved
by the Senate on 30 June 2015. Available from www.ifrc.org/Global
/Publications/IDRL/DM%20acts/Cambodia%20DM%20Law_Eng
lish.pdf.
145 Decree No. 037/PM of 19 March 2003 on the Establishment, Organization
and Functions of a National Risk Observatory.
146 Emergency Response Law of the People’s Republic of China
(2007). Available from http://english.mee.gov.cn/Resources/laws/envir
_elatedlaws/201705/t20170514_414040.shtml.
147 Law on Civil Protection and the Prevention and Mitigation of
Disasters (2005).
148 Act on Protection against Natural and Other Disasters (2006).
149 Disaster Mitigation Act of 2000.
150 Emergency Preparedness Act (2000).
151 Philippine Disaster Risk Management Act 2006.
152 Act No. 2003-699 on the Prevention of Technological and Natural
Risks and the Reparation of Damages (2003).
153 Law on Public Safety. Document No. 2467-IIs. Available from
https://matsne.gov.ge/en/document/view/2363013.
154 Act No. 109-96 on the National Coordinator for Disaster Reduction
(1996).
155 National Risk and Disaster Management Plan (2001).
156 Act LXXIV on the management and organization of disaster
prevention and the prevention of major accidents involving hazardous
substances (1999).
157 Disaster Management Act, 2005 (No. 53).
158 Law No. 24 of 2007 concerning Disaster Management.
159 Decree on the Creation of a National Platform for Disaster Risk
Reduction (2008).
160 Decree No. 2005-866 establishing the procedure for implementing
Act No. 2003-010 of 5 September 2003 on National Risk and Disaster
Management Policy (2005).
161 Disaster Risk Management Act, 2012 (No. 10).
162 National Civil Defence Emergency Management Plan Order
2005 (SR 2005/295).
163 National Disaster Management Act, 2010. See also the official
statement of the Government of Pakistan at the third session of
the Global Platform for Disaster Risk Reduction, 2011, available from
www.preventionweb.net/files/globalplatform/pakistanofficialstate
ment.pdf.
164 Act No. 29664 creating the National System for Disaster Risk
Management (2011).
165 Countermeasures against Natural Disasters Act (1995) and National
Disaster Management Act (2010).
166 Decree No. 874-09 approving implementing regulations for Act
No. 147-02 on Risk Management and repealing Chapters 1, 2, 3, 4 and
5 of Decree No. 932-03 (2009).
167 Disaster Management Act, 2002 (No. 57).
168 Disaster Prevention and Mitigation Act (2007).
(7) Draft article 9 is to be read together with the rules
of general applicability in the present draft articles, including
those principally concerned with the response to
a disaster.
(8) Paragraph 1 starts with the words “[e]ach State”.
The Commission opted for this formula over “States”
for the sake of consistency with the draft articles previously
adopted, where care had been taken to identify the
State or States that bore the legal duty to act. In contrast to
those draft articles dealing directly with disaster response
where a distinction exists between an affected State or
States and other States, in the pre-disaster phase the obligation
in question applies to every State. Furthermore, as
is evident from paragraph 2, the obligation to reduce risk
implies measures primarily taken at the domestic level.
Any such measures requiring interaction between States
or with other assisting actors are meant to be covered by
draft article 7. In other words, the obligation applies to
each State individually. Hence the Commission decided
against using the word “States” also to avoid any implication
of a collective obligation.
(9) The word “shall” signifies the existence of the international
legal obligation to act in the manner described in
the paragraph and is the most succinct way to convey the
sense of that legal obligation. While each State bears the
same obligation, the question of different levels of capacity
among States to implement the obligation is dealt
with under the phrase “by taking appropriate measures”.
(10) The obligation is to “reduce the risk of disasters”.
The Commission adopted the present formula in recognition
of the fact that the contemporary view of the international
community, as reflected in several major pronouncements,
notably, and most recently, in the Sendai
Framework, is that the focus should be placed on the
reduction of the risk of harm caused by a hazard, as distinguished
from the prevention and management of disasters
themselves. Accordingly, the emphasis in paragraph 1
is placed on the reduction of the risk of disasters. This
is achieved by taking certain measures so as to prevent,
mitigate and prepare for such disasters. The duty being
envisaged is one of conduct and not result; in other words
not to completely prevent or mitigate a disaster, but rather
to reduce the risk of harm potentially caused thereby.
(11) The phrase “by taking appropriate measures” indicates
the specific conduct being required. In addition to
the further specification about legislation and regulations
explained in paragraph (13) below, the “measures” to
be taken are qualified by the word “appropriate”, which
accords with common practice. The use of the word “appropriate”,
therefore, serves the function of specifying
that it is not just any general measures that are being referred
to, but rather specific and concrete measures aimed
at prevention, mitigation and preparation for disasters.
What might be “appropriate” in any particular case is to
be understood in terms of the stated goal of the measures
to be taken, namely “to prevent, mitigate, and prepare for
disasters” so as to reduce risk. This is to be evaluated within
the broader context of the existing capacity and availability
of resources of the State in question, as has been noted in
paragraph (9) above. Accordingly, the reference to “taking
appropriate measures” is meant to indicate the relative
44 Report of the International Law Commission on the work of its sixty-eighth session
nature of the obligation. The fundamental requirement of
due diligence is inherent in the concept of “appropriate”. It
is further understood that the question of the effectiveness
of the measures is implied in that formula.
(12) The paragraph indicates by means of the phrase
“including through legislation and regulations” the specific
context in which the corresponding measures are to
be taken. The envisaged outcome consists of a number
of concrete measures that are typically taken within the
context of a legislative or regulatory framework. Accordingly,
for those States that do not already have such a
framework in place, the general obligation to reduce the
risk of disasters would also include an obligation to put
such a legal framework into place so as to allow for the
taking of the “appropriate” measures. The phrase “legislation
and regulations” is meant to be understood in broad
terms to cover as many manifestations of law as possible,
it being generally recognized that such law-based measures
are the most common and effective way to facilitate
(hence the word “through”) the taking of disaster risk
reduction measures at the domestic level.
(13) The word “including” indicates that, while “legislation
and regulations” may be the primary methods, there
may be other arrangements under which such measures
could be taken. The word “including” was chosen in order
to avoid the interpretation that the adoption and implementation
of specific legislation and regulations would
always be required. This allows a margin of discretion for
each State to decide on the applicable legal framework, it
being understood that having in place a legal framework
that anticipates the taking of “appropriate measures” is a
sine qua non for disaster risk reduction.
(14) The phrase “through legislation and regulations”
imports a reference to ensuring that mechanisms for
implementation and accountability for non-performance
be defined within domestic legal systems. Such issues,
though important, are not the only ones that could be the
subject of legislation and regulations in the area of disaster
risk reduction.
(15) The last clause, namely “to prevent, mitigate, and
prepare for disasters”, serves to describe the purpose of
the “appropriate” measures that States are to take during
the pre-disaster phase to address exposure, vulnerability
and the characteristics of a hazard, with the ultimate goal
of reducing disaster risk. The phrase tracks the formula
used in major disaster risk reduction instruments. The
Commission was cognizant of the fact that adopting a different
formulation could result in unintended a contrario
interpretations as to the kinds of activities being anticipated
in the draft article. In addition, the Commission was
of the opinion that this clause would also address the Sendai
Framework’s requirement to prevent new, and reduce
existing, risk, and thus strengthen resilience.
(16) The Terminology on Disaster Risk Reduction prepared
by the United Nations Office for Disaster Risk Reduction
in 2009 illustrates the meaning of each of the three
terms used—prevention, mitigation and preparedness:169
169 See www.preventionweb.net/files/7817_UNISDRTerminology
English.pdf.
Prevention [is] [t]he outright avoidance of adverse impacts of hazards
and related disasters.
… Prevention (i.e. disaster prevention) expresses the concept and
intention to completely avoid potential adverse impacts through action
taken in advance. … Very often the complete avoidance of losses is
not feasible and the task transforms to that of mitigation. Partly for this
reason, the terms prevention and mitigation are sometimes used interchangeably
in casual use.
Mitigation [is] [t]he lessening or limitation of the adverse impacts
of hazards and related disasters.
… The adverse impacts of hazards often cannot be prevented fully,
but their scale or severity can be substantially lessened by various strategies
and actions. … It should be noted that in climate change policy,
“mitigation” is defined differently, being the term used for the reduction
of greenhouse gas emissions that are the source of climate change.170
Preparedness [is] [t]he knowledge and capacities developed by
governments, professional response and recovery organizations, communities
and individuals to effectively anticipate, respond to, and
recover from, the impacts of likely, imminent or current hazard events
or conditions.
… Preparedness action is carried out within the context of disaster
risk management and aims to build the capacities needed to efficiently
manage all types of emergencies and achieve orderly transitions from
response through to sustained recovery. Preparedness is based on a
sound analysis of disaster risks and good linkages with early warning
systems … [The measures to be taken] must be supported by formal
institutional, legal and budgetary capacities.
The Commission is cognizant that the above terms may
be subject to further refinements by the General Assembly
on the basis of the outcome of the open-ended intergovernmental
expert working group on indicators and terminology
relating to disaster risk reduction, established by its
resolution 69/284 of 3 June 2015.
(17) Paragraph 2 lists three categories of disaster risk
reduction measures, namely: the conduct of risk assessments;
the collection and dissemination of risk and past
loss information; and the installation and operation of
early warning systems. As noted in paragraph (3) above,
these three measures were singled out in the Chair’s
summary at the conclusion of the fourth session of the
Global Platform for Disaster Risk Reduction, held in May
2013.171 The Commission decided to refer expressly to
the three examples listed as reflecting the most prominent
types of contemporary disaster risk reduction efforts. The
relevance of such measures was further confirmed by
their inclusion in the Sendai Framework. The word “include”
serves to indicate that the list is non-exhaustive.
The listing of the three measures is without prejudice to
other activities aimed at the reduction of the risk of disasters
that are being undertaken at present or which may
be undertaken in the future.
(18) The practical structural and non-structural measures
that can be adopted are innumerable and depend on
the social, environmental, financial, cultural and other
relevant circumstances. Practice in the public and private
sectors, as well as instruments, such as the Sendai
Framework, provide a wealth of examples, among which
may be cited: community-level preparedness and education;
the establishment of disaster risk governance frameworks;
contingency planning; setting-up of monitoring
170 The Commission is conscious of the discrepancy in the concordance
between the English and French versions of the official United Nations
use of the term “mitigation”.
171 See footnote 103 above.
Protection of persons in the event of disasters 45
mechanisms; land-use controls; construction standards;
ecosystems management; drainage systems; social safetynets
addressing vulnerability and resilience; risk disclosure;
risk-informed investments; and insurance.
(19) The three consecutive measures listed in paragraph
2 share a particular characteristic: they are instrumental
to the development and applicability of many if
not all other measures concerning normative frameworks
and definitions of priorities or investment planning, both
in the public and the private sector.
(20) The first measure—risk assessments—is about generating
knowledge concerning hazards, exposure and vulnerabilities,
as well as disaster risk trends. As such, it is the
first step towards any sensible measure to reduce the risk
of disasters. Without a sufficiently solid understanding of
the circumstances and factors, and their characteristics, that
drive disaster risk, no measure can be defined and enacted
effectively. Risk assessments also compel a closer look at
local realities and the engagement of local communities.
(21) The second measure—the collection and dissemination
of risk and past loss information—is the next step.
Reducing disaster risk requires action by all actors in the
public and private sectors and civil society. Collection and
dissemination should result in the free availability of risk
and past loss information, which is an enabler of effective
decisions and action. It allows all stakeholders to assume
responsibility for their actions and to make a risk-informed
determination of priorities for planning and investment
purposes; it also enhances transparency in transactions
and public scrutiny and control. The Commission wishes
to emphasize the desirability of the dissemination and free
availability of risk and past loss information, as it is the
reflection of the prevailing trend focusing on the importance
of public access to such information. The Commission,
while recognizing the importance of that trend, felt
that it was best dealt with in the commentary and not in
the body of paragraph 2, since making it a uniform legal
requirement could prove burdensome for States.
(22) The third measure concerns early warning systems,
which are instrumental both in initiating and implementing
contingency plans, thus limiting the exposure to a
hazard; as such, they are a prerequisite for effective preparedness
and response.
(23) As explained in paragraph (8) above, draft article 9
concerns the taking of the envisaged measures within the
State. Any inter-State component would be covered by the
duty to cooperate in draft article 7. Accordingly, the extent
of any international legal duty relating to any of the
listed or not listed measures that may be taken in order
to reduce the risk of disasters is to be determined by way
of the relevant specific agreements or arrangements each
State has entered into with other actors with which it has
the duty to cooperate.
Article 10. Role of the affected State
1. The affected State has the duty to ensure the
protection of persons and provision of disaster relief
assistance in its territory, or in territory under its jurisdiction
or control.
2. The affected State has the primary role in the
direction, control, coordination and supervision of
such relief assistance.
Commentary
(1) Draft article 10 is addressed to an affected State in
the context of the protection of persons in the event of a
disaster upon its territory, or in territory under its jurisdiction
or control. The term “role” in the title is a broad
formulation intended to cover as well the “function” of a
State. Paragraph 1 reflects the obligation of an affected
State to protect persons and to provide disaster relief assistance.
Paragraph 2 affirms the primary role held by an
affected State in the response to a disaster upon its territory,
or in a territory under its jurisdiction or control.
(2) Draft article 10 is premised on the core principle
of sovereignty as highlighted in the preamble to the
present set of draft articles. Both the principle of sovereignty
and its corollary, non-intervention, inform the
Charter of the United Nations172 and numerous international
legal instruments and judicial pronouncements.173
In the context of disaster relief assistance, General Assembly
resolution 46/182 affirms: “The sovereignty,
territorial integrity and national unity of States must be
fully respected in accordance with the Charter of the
United Nations.”174
(3) The duty held by an affected State to ensure the
protection of persons and the provision of disaster relief
assistance in its territory, as recognized in paragraph 1,
stems from its sovereignty. The further reference to “or in
territory under its jurisdiction or control” has been inserted
to align the text with the expanded meaning of the term
“affected State” in draft article 3, subparagraph (b).
(4) The conception of a bond between sovereign rights
and concomitant duties upon a State was expressed in particular
by Judge Álvarez in an individual opinion in the
Corfu Channel case:
By sovereignty, we understand the whole body of rights and attributes
which a State possesses in its territory, to the exclusion of all other
States, and also in its relations with other States.
172 Charter of the United Nations, Article 2, paras. 1 (“The Organization
is based on the principle of the sovereign equality of all its Members”)
and 7 (“Nothing contained in the present Charter shall authorize
the United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any State or shall require the Members to
submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures
under Chapter VII”).
173 See, for example, the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations (footnote 82 above),
which notes, inter alia, that “[a]ll States enjoy sovereign equality. They
have equal rights and duties and are equal members of the international
community”; “[t]he use of force to deprive peoples of their national
identity constitutes a violation of their inalienable rights and of the principle
of non-intervention”; and “States shall conduct their international
relations in the economic, social, cultural, technical and trade fields in
accordance with the principles of sovereign equality and non-intervention”.
The International Court of Justice has held that: “Between independent
States, respect for territorial sovereignty is an essential foundation
of international relations” (Corfu Channel case (see footnote 68
above), p. 35).
174 Annex, para. 3.
46 Report of the International Law Commission on the work of its sixty-eighth session
Sovereignty confers rights upon States and imposes obligations on
them.175
(5) Paragraph 1 emphasizes that the affected State is the
actor that holds the duty to protect persons located within
its territory or within a territory under its jurisdiction or
control. The Commission considered that the term “duty”
was more appropriate than the term “responsibility”, which
could be misunderstood given its use in other contexts.
(6) Paragraph 2 further reflects the primary role held
by a State in disaster response. For the reasons expressed
above, the Commission decided to adopt the word “role”
rather than “responsibility” in articulating the position
of an affected State. The adoption of the term “role” was
inspired by General Assembly resolution 46/182, which
affirms, inter alia, that an affected State “has the primary
role in the initiation, organization, coordination,
and implementation of humanitarian assistance within its
territory”.176 Use of the word “role” rather than “responsibility”
allows some flexibility for States in the coordination
of disaster response activities. Language implying
an obligation upon States to direct or control disaster
response activities may, conversely, be too restrictive for
States that preferred to take a more limited role in disaster
response coordination because, for example, they faced a
situation of limited resources.
(7) The primacy of an affected State is also grounded
in the long-standing recognition in international law that
the State is best placed to determine the gravity of an
emergency situation and to frame appropriate response
policies. The affirmation in paragraph 2 that an affected
State holds the primary role in the direction, control, coordination
and supervision of disaster relief assistance
should be read in concert with the duty of cooperation
outlined in draft article 7. In this context, draft article 10,
paragraph 2, confirms that an affected State holds the primary
position in the cooperative relationships with other
relevant actors contemplated in draft article 7.
(8) Reference to the “direction, control, coordination
and supervision” of disaster relief assistance is drawn from
article 4, paragraph 8, of the Tampere Convention.177 The
Tampere Convention formula is gaining general acceptance
in the field of disaster relief assistance and represents
more contemporary language.178 The formula reflects the
175 Corfu Channel case (see footnote 68 above), Individual Opinion
by Judge Álvarez, p. 39, at p. 43. See also the opinion expressed
by Max Huber, Arbitrator, in the Island of Palmas case (Netherlands/
United States of America), Award of 4 April 1928, UNRIAA, vol. II
(Sales No. 1949.V.1), p. 829, at p. 839 (“Territorial sovereignty, as has
already been said, involves the exclusive right to display the activities
of a State. This right has as corollary a duty: the obligation to protect
within the territory the rights of other States …”).
176 Annex, para. 4.
177 “Nothing in this Convention shall interfere with the right of a
State Party, under its national law, to direct, control, coordinate and
supervise telecommunication assistance provided under this Convention
within its territory.”
178 See, for example, the ASEAN Agreement, art. 3, para. 2 (noting
that “[t]he Requesting or Receiving Party shall exercise the overall
direction, control, co-ordination and supervision of the assistance
within its territory”), and the Convention on Assistance in the Case of
a Nuclear Accident or Radiological Emergency, art. 3 (a) (noting, inter
alia, that unless otherwise agreed “[t]he overall direction, control, coordination
and supervision of the assistance shall be the responsibility
within its territory of the requesting State”).
position that an affected State exercises control over the
manner in which relief operations are carried out, which
shall be in accordance with international law, including
the present draft articles. Such control by an affected State
is not to be regarded as undue interference with the activities
of an assisting actor.
(9) The Commission departed from the Tampere Convention
in deciding not to include a reference to “national
law” in its articulation of the primary role of an affected
State. In the context of the Tampere Convention, the reference
to national law indicates that appropriate coordination
requires consistency with an affected State’s domestic
law. The Commission decided not to include this reference
in the light of the fact that the internal law of an affected
State may not in all cases regulate or provide for the primary
position of a State in disaster response situations.
Article 11. Duty of the affected State to seek
external assistance
To the extent that a disaster manifestly exceeds its
national response capacity, the affected State has the
duty to seek assistance from, as appropriate, other
States, the United Nations, and other potential assisting
actors.
Commentary
(1) Draft article 11 addresses the particular situation
in which a disaster manifestly exceeds a State’s national
response capacity. In these circumstances, an affected
State has the duty to seek assistance from, as appropriate,
other States, the United Nations, and other potential assisting
actors as defined in draft article 3, subparagraph (d).
The duty expounded in draft article 11 is a specification
of draft articles 7 and 10. Paragraph 1 of draft article 10
stipulates that an affected State has the duty to ensure the
protection of persons and provision of disaster relief assistance
in its territory, or in territory under its jurisdiction
or control. The draft article affirms the obligation of
the affected State to do its utmost to provide assistance to
persons in a territory under its jurisdiction or control. The
duty to cooperate also underlies an affected State’s duty
to the extent that a disaster manifestly exceeds its national
response capacity. Draft article 7 affirms that the duty to
cooperate is incumbent upon not only potential assisting
States or other potential assisting actors, but also affected
States where such cooperation is appropriate. The Commission
considers that, where an affected State’s national
capacity is manifestly exceeded, seeking assistance is
both appropriate and required.
(2) The draft article stresses that a duty to seek assistance
arises only to the extent that the national response capacity
of an affected State is manifestly exceeded. The words “to
the extent that” clarify that the national response capacity
of an affected State may not always be sufficient or insufficient
in absolute terms. An affected State’s national capacity
may be manifestly exceeded in relation to one aspect
of disaster relief operations, although the State remains
capable of undertaking other operations. As a whole, the
phrase “[t]o the extent that a disaster manifestly exceeds
its national response capacity” encompasses the situation
in which a disaster appears likely to manifestly exceed an
affected State’s national response capacity. This flexible
Protection of persons in the event of disasters 47
and proactive approach is in line with the fundamental purpose
of the draft articles as expressed in draft article 2. The
approach facilitates an adequate and effective response to
disasters that meets the essential needs of the persons concerned,
with full respect for their rights. Recognition of the
duty upon States in these circumstances reflects the Commission’s
concern to enable the provision of timely and effective
disaster relief assistance.
(3) The Commission considers that the duty to seek assistance
in draft article 11 also derives from an affected
State’s obligations under international human rights instruments
and customary international law. Recourse to
international support may be a necessary element in the
fulfilment of a State’s international obligations towards
individuals where the resources of the affected State are
inadequate to meet protection needs. While this may
occur also in the absence of any disaster, as alluded to
in the commentary to draft article 5, a number of human
rights are directly implicated in the context of a disaster,
including the right to life, the right to adequate food,
the right to health and medical services, the right to safe
drinking water, the right to adequate housing, clothing
and sanitation and the right to be free from discrimination.
179 The Commission notes that the Human Rights
Committee has said (see general comment No. 6 on the
right to life) that a State’s duty in the fulfilment of the
right to life extends beyond mere respect to encompass a
duty to protect the right by adopting positive measures.180
The right to life is non-derogable under the International
Covenant on Civil and Political Rights, even in the event
of a “public emergency which threatens the life of the
nation”181—which has been recognized to include a “natural
catastrophe” by the Human Rights Committee in general
comment No. 29.182 The International Covenant on
Economic, Social and Cultural Rights states that in pursuance
of the right to food:
The States Parties will take appropriate steps to ensure the realization
of this right, recognizing to this effect the essential importance of
international co-operation based on free consent.183
The Committee on Economic, Social and Cultural Rights
noted, in general comment No. 12 on the right to adequate
food (article 11 of the Covenant), that if a State party
maintains that resource constraints make it impossible to
provide access to food to those in need:
the State has to demonstrate that every effort has been made to use all
the resources at its disposal in an effort to satisfy, as a matter of priority,
those minimum obligations. … A State claiming that it is unable
to carry out its obligation for reasons beyond its control therefore has
the burden of proving that this is the case and that it has unsuccessfully
sought to obtain international support to ensure the availability
and accessibility of the necessary food.184
179 See the examples listed in the preliminary report of the Special
Rapporteur, Yearbook … 2008, vol. II (Part One), document A/
CN.4/598, para. 26.
180 Official Records of the General Assembly, Thirty-seventh Session,
Supplement No. 40 (A/37/40), annex V, para. 5.
181 Art. 4, para. 1.
182 Official Records of the General Assembly, Fifty-sixth Session,
Supplement No. 40 (A/56/40), vol. I, annex VI, para. 5.
183 Art. 11, para. 1.
184 Official Records of the Economic and Social Council, Twentieth
and Twenty-first Sessions, Supplement No. 2 (E/2000/22-
E/C.12/1999/11), annex V, p. 102, para. 17.
The Commission therefore notes that “appropriate steps”
to be taken by a State include seeking international assistance
where domestic conditions are such that the right to
food cannot be realized.
(4) Specific references to the protection of rights in the
event of disasters are made in the African Charter on the
Rights and Welfare of the Child and the Convention on
the Rights of Persons with Disabilities. Under article 23
of the African Charter on the Rights and Welfare of the
Child, States shall take “all appropriate measures” to
ensure that children seeking or holding refugee status, as
well as those who are internally displaced due to events including
“natural disaster”, are able to “receive appropriate
protection and humanitarian assistance in the enjoyment
of the rights set out in this Charter and other international
human rights and humanitarian instruments to which the
States are parties”. The Convention on the Rights of Persons
with Disabilities refers to the obligation of States
towards disabled persons in the event of disasters:
States Parties shall take, in accordance with their obligations under
international law, including international humanitarian law and international
human rights law, all necessary measures to ensure the protection
and safety of persons with disabilities in situations of risk, including
situations of armed conflict, humanitarian emergencies and the occurrence
of natural disasters.185
The phrase “all necessary measures” may encompass
recourse to possible assistance from members of the
international community in the event that an affected
State’s national capacity is manifestly exceeded. Such
an approach would cohere with the guiding principle of
humanity as applied in the international legal system. The
International Court of Justice affirmed in the Corfu Channel
case that among general and well-recognized principles
are “elementary considerations of humanity, even
more exacting in peace than in war”.186 Draft article 6
affirms the core position of the principle of humanity in
disaster response.
(5) The Commission considers that a duty to “seek”
assistance is more appropriate than a duty to “request”
assistance in the context of draft article 11. The Commission
derives this formulation from the duty outlined in
the resolution on humanitarian assistance adopted by the
Institute of International Law, which notes:
Whenever the affected State is unable to provide sufficient humanitarian
assistance to the victims placed under its jurisdiction or de facto
control, it shall seek assistance from competent international organizations
and/or from third States.187
Similarly, the IDRL Guidelines hold that:
If an affected State determines that a disaster situation exceeds national
coping capacities, it should seek international and/or regional
assistance to address the needs of affected persons.188
185 Art. 11.
186 Corfu Channel case (see footnote 68 above), p. 22 (noting that
“[t]he obligations incumbent upon the Albanian authorities consisted
in notifying, for the benefit of shipping in general, the existence of a
minefield in Albanian territorial waters and in warning the approaching
British warships of the imminent danger to which the minefield
exposed them. Such obligations are based, not on the Hague Convention
of 1907, No. VIII, which is applicable in time of war, but on certain
general and well-recognized principles, namely: elementary considerations
of humanity, even more exacting in peace than in war …”).
187 Resolution on humanitarian assistance (see footnote 21 above),
art. III, para. 3.
188 IDRL Guidelines (see footnote 20 above), Part I, sect. 3, para. 2.
48 Report of the International Law Commission on the work of its sixty-eighth session
In addition, the guiding principles annexed to General
Assembly resolution 46/182 also appear to support a duty
on the affected State to have recourse to international
cooperation where an emergency exceeds its response
capacity:
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.189
(6) The alternate formulation of “request” is incorporated
in the Oslo Guidelines, which note that “[i]f international
assistance is necessary, it should be requested or
consented to by the Affected State as soon as possible upon
the onset of the disaster to maximize its effectiveness.”190
The Commission considers that a “request” of assistance
carries an implication that an affected State’s consent is
granted upon acceptance of that request by an assisting
State or other assisting actor. In contrast, the Commission
is of the view that a duty to “seek” assistance implies a
broader, negotiated approach to the provision of international
aid. The term “seek” entails the proactive initiation
by an affected State of a process through which agreement
may be reached. Draft article 11 therefore places a
duty upon affected States to take positive steps actively to
seek out assistance to the extent that a disaster manifestly
exceeds their national response capacity.
(7) An affected State will be in the best position, in principle,
to determine the severity of a disaster situation and
the limits of its national response capacity. Having said
this, this assessment and its assessment of the severity of
a disaster must be carried out in good faith. The principle
of good faith is expounded in the Declaration on Principles
of International Law concerning Friendly Relations
and Co-operation among States in accordance with the
Charter of the United Nations,191 which stipulates that
“[e]very State has the duty to fulfil in good faith” obligations
assumed by it “in accordance with the Charter of the
United Nations”,192 “obligations under the generally recognized
principles and rules of international law”193 and
“obligations under international agreements valid under
the generally recognized principles and rules of international
law”.194 A good faith assessment of the severity of a
disaster is an element of an affected State’s duty to ensure
the protection of persons and provision of disaster relief
assistance pursuant to draft article 10, paragraph 1.
(8) The phrase “as appropriate” was adopted by the
Commission to emphasize the discretionary power of an
affected State to choose from other States, the United Nations,
and other potential assisting actors the assistance
that is most appropriate to its specific needs. The term
further reflects that the duty to seek assistance does not
imply that a State is obliged to seek assistance from every
source listed in draft article 11. The phrase “as appropriate”
therefore reinforces the fact that an affected State
189 Annex, para. 5.
190 Oslo Guidelines (see footnote 30 above), para. 58.
191 General Assembly resolution 2625 (XXV), annex.
192 Ibid.
193 Ibid.
194 Ibid.
has the primary role in the direction, control, coordination
and supervision of the provision of disaster relief assistance,
as outlined in draft article 10, paragraph 2.
(9) The existence of a duty to seek assistance to the extent
that national capacity is manifestly exceeded does not
imply that affected States should not seek assistance in
disaster situations of a lesser magnitude. The Commission
considers cooperation in the provision of assistance
at all stages of disaster relief to be central to the facilitation
of an adequate and effective response to disasters
and a practical manifestation of the principle of solidarity.
Even if an affected State is capable and willing to provide
the required assistance, cooperation and assistance
by international actors will in many cases ensure a more
adequate, rapid and extensive response to disasters and an
enhanced protection of affected persons.
Article 12. Offers of external assistance
1. In the event of disasters, States, the
United Nations, and other potential assisting actors
may offer assistance to the affected State.
2. When external assistance is sought by an affected
State by means of a request addressed to another
State, the United Nations, or other potential
assisting actor, the addressee shall expeditiously give
due consideration to the request and inform the affected
State of its reply.
Commentary
(1) Draft article 12 acknowledges the interest of the
international community in the protection of persons in
the event of disasters, which is to be viewed as complementary
to the primary role of the affected State enshrined
in draft article 10. It is an expression of the principles of
solidarity and cooperation, highlighted in the preamble,
which underlie the whole set of draft articles on the topic,
the latter principle being specifically embodied in draft
articles 7 to 9.
(2) Draft article 12 is only concerned with “offers” of
assistance, not with the actual “provision” thereof. Such
offers, whether made unilaterally or in response to a
request, are essentially voluntary and should not be construed
as recognition of the existence of a legal duty to
assist. Nor does an offer of assistance create for the affected
State a corresponding obligation to accept it. In conformity
with the principle of the sovereignty of States and
the primary role of the affected State, stressed in the preamble
and which inform the whole set of draft articles, an
affected State may accept in whole or in part, or not accept,
offers of assistance from States or non-State actors in accordance
with the conditions set forth in draft article 13.
(3) Offers of assistance must be made consistent with
the principles set forth in these draft articles, in particular
in draft article 6. Such offers of assistance cannot
be regarded as interference in the affected State’s internal
affairs. This conclusion accords with the statement of the
Institute of International Law in its 1989 resolution on the
protection of human rights and the principle of non-intervention
in internal affairs of States:
Protection of persons in the event of disasters 49
An offer by a State, a group of States, an international organization
or an impartial humanitarian body such as the International Committee
of the Red Cross, of food or medical supplies to another State in whose
territory the life or health of the population is seriously threatened, cannot
be considered an unlawful intervention in the internal affairs of that
State.195
(4) Draft article 12 addresses the question of offers of
assistance to affected States made by those most likely to
be involved in such offers after the occurrence of a disaster,
namely States, the United Nations and other assisting
actors. The term “other assisting actor”, qualified by
the word “potential”, is defined in draft article 3, subparagraph
(d), to comprise a competent intergovernmental
organization or a relevant non-governmental organization
or entity. The United Nations and intergovernmental
organizations not only are entitled, as mandated by their
constituent instruments, but are also encouraged to make
offers of assistance to the affected State.
(5) Non-governmental organizations or entities may be
well placed, because of their nature, location and expertise,
to provide assistance in response to a particular disaster.
The position of non-governmental organizations or
entities in carrying out relief operations is not a novelty in
international law. The Geneva Conventions for the protection
of war victims already provide that, in situations
of armed conflict:
An impartial humanitarian body, such as the International Committee
of the Red Cross, may offer its services to the Parties to the conflict.196
Similarly, the Protocol additional to the Geneva Conventions
of 12 August 1949, and relating to the protection of
victims of non-international armed conflicts (Protocol II)
provides that:
Relief societies located in the territory of the High Contracting
Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations,
may offer their services for the performance of their traditional
functions in relation to the victims of the armed conflict. The civilian
population may, even on its own initiative, offer to collect and care for
the wounded, sick and shipwrecked.197
The important contribution of non-governmental organizations
or entities, working with strictly humanitarian
motives, in disaster response was stressed by the General
Assembly in its resolution 43/131 of 8 December 1988
on humanitarian assistance to victims of natural disasters
and similar emergency situations. In that resolution, the
Assembly, inter alia, invited all affected States to “facilitate
the work of [such] organizations in implementing
humanitarian assistance, in particular the supply of food,
medicines and health care, for which access to victims is
essential” and appealed “to all States to give their support
to [those] organizations working to provide humanitarian
assistance, where needed, to the victims of natural disasters
and similar emergency situations”.198
195 Yearbook of the Institute of International Law, vol. 63, Part II
(Session of Santiago de Compostela, 1989), p. 339, at p. 345, art. 5
(www.idi-iil.org, Publications and Works/Resolutions).
196 See, for example, the 1949 Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the
Field, art. 3, para. 2.
197 Protocol additional to the Geneva Conventions of 12 August
1949, and relating to the protection of victims of non-international
armed conflicts (Protocol II), art. 18, para. 1.
198 Paras. 4–5.
(6) The use of the verb “may” in paragraph 1 is intended
to emphasize that, in the context of offers of external
assistance, what matters is the possibility open to all
potential assisting actors to make an offer of assistance,
regardless of their status and the legal grounds on which
they can base their action.
(7) Paragraph 2 finds inspiration in article 3 (e) of the
2000 Framework Convention on civil defence assistance,
according to which: “Offers of, or requests for, assistance
shall be examined and responded to by recipient States
within the shortest possible time.”199 The paragraph aims
at introducing a greater balance within the text of the draft
articles as a whole, by providing a countervailing obligation
on the part of States, or other potential assisting
actors, when confronted with a request by an affected
State for external assistance. The obligation is established
in parallel to that in draft article 13, paragraph 3, namely
the obligation of the affected State to make known its decision
regarding an offer made to it in a timely manner.
However, the obligation is formulated differently in each
of the two articles in recognition that the position of an
affected State, in the wake of a disaster falling within the
scope of the present draft articles, is different from that of
an assisting State or other assisting actor.
(8) Paragraph 2 has three components. First, the seeking
of external assistance by the affected State triggers
the application of the provision. While, in draft article 11,
the duty on the affected State is a general duty to “seek”
assistance, this paragraph deals with the scenario where
specific assistance is sought by the affected State “by
means of a request addressed to” the enumerated list of
potential assisting actors. Such specification is important
since it limits the application of the provision to specific
requests, and not general appeals for assistance.
(9) Second, the provision refers to the various addressees
of a request for assistance, including other States, the
United Nations and other potential assisting actors, which
is a cross-reference to the definition in draft article 3, subparagraph
(d). The United Nations is singled out for special
mention given the central role it plays in receiving
requests for assistance.
(10) Third, paragraph 2 sets an obligation on the
addressee or addressees of the specific request, which is
structured in two parts: first, to give due consideration
to the request; and, second, to inform the affected State
of its or their reply thereto. Both obligations contain the
term “expeditiously”, which is a reference to timeliness.
The formulation of the obligation to give “due consideration
to the request” is drawn from similar wording in article
19, of the articles on diplomatic protection, adopted
in 2006.200 The word “due” is meant less in the sense of
timeliness, which is already covered by the notion of
expeditious, and more as a reference to giving the request
careful consideration.
199 See also the ASEAN Agreement, art. 4 (c) (“In pursuing the
objective of this Agreement, the Parties shall … promptly respond to
a request for assistance from an affected Party”), and the South Asian
Association for Regional Cooperation (SAARC) Agreement on Rapid
Response to Natural Disasters, art. IV, para. 3.
200 General Assembly resolution 62/67 of 6 December 2007, annex;
for the commentary thereto, see Yearbook … 2006, vol. II (Part Two),
pp. 26 et seq., para. 50.
50 Report of the International Law Commission on the work of its sixty-eighth session
Article 13. Consent of the affected State
to external assistance
1. The provision of external assistance requires
the consent of the affected State.
2. Consent to external assistance shall not be withheld
arbitrarily.
3. When an offer of external assistance is made in
accordance with the present draft articles, the affected
State shall, whenever possible, make known its decision
regarding the offer in a timely manner.
Commentary
(1) Draft article 13 addresses consent of an affected
State to the provision of external assistance. As a whole,
it creates for affected States a qualified consent regime
in the field of disaster relief operations. Paragraph 1 reflects
the core principle that implementation of international
relief assistance is contingent upon the consent of
the affected State. Paragraph 2 stipulates that consent to
external assistance shall not be withheld arbitrarily, while
paragraph 3 places a duty upon an affected State to make
known, whenever possible, its decision regarding an offer
of external assistance in a timely manner.
(2) The principle that the provision of external assistance
requires the consent of the affected State is fundamental
to international law. Accordingly, paragraph 3
of the guiding principles annexed to General Assembly
resolution 46/182 notes that “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”. The Tampere Convention stipulates
that “[n]o telecommunication assistance shall be provided
pursuant to this Convention without the consent of
the requesting State Party”,201 while the ASEAN Agreement
notes that “external assistance or offers of assistance
shall only be provided upon the request or with
the consent of the affected Party”.202 Recognition of the
requirement of State consent to the provision of external
assistance comports with the position in draft article 10,
paragraph 2, that an affected State has the primary role
in the direction, control, coordination and supervision
of disaster relief assistance in its territory or in territory
under its jurisdiction or control.
(3) The recognition, in paragraph 2, that an affected
State’s right to refuse an offer is not unlimited reflects
the dual nature of sovereignty as entailing both rights and
obligations. This approach is reflected in paragraph 1 of
draft article 10, which affirms that an affected State “has
the duty to ensure the protection of persons and provision
of disaster relief assistance in its territory, or in territory
under its jurisdiction or control”.
(4) The Commission considers that the duty of an affected
State to ensure protection and assistance to those
within its territory, or in territory under its jurisdiction or
control, in the event of a disaster, is aimed at preserving
the life and dignity of the persons affected by the disaster
201 Art. 4, para. 5.
202 Art. 3, para. 1.
and guaranteeing the access of persons in need to humanitarian
assistance. This duty is central to securing the right
to life of those within an affected State’s territory, or in
territory under its jurisdiction or control.203 The Human
Rights Committee has interpreted the right to life as
embodied in article 6 of the International Covenant on
Civil and Political Rights to contain the obligation for
States to adopt positive measures to protect this right.204
An offer of assistance that is met with refusal might thus
under certain conditions constitute a violation of the right
to life. The General Assembly reaffirmed in its resolutions
43/131 of 8 December 1988 and 45/100 of 14 December
1990 that “the abandonment of the victims of natural disasters
and similar emergency situations without humanitarian
assistance constitutes a threat to human life and an
offence to human dignity”.205
(5) Recognition that an affected State’s discretion regarding
consent is not unlimited is reflected in the Guiding
Principles on Internal Displacement.206 The Guiding
Principles, which have been welcomed by the former
Commission on Human Rights and the General Assembly
in unanimously adopted resolutions and described by the
Secretary-General as “the basic international norm for
protection” of internally displaced persons,207 provide:
Consent [to offers of humanitarian assistance] shall not be arbitrarily
withheld, particularly when authorities concerned are unable or
unwilling to provide the required humanitarian assistance.208
The Institute of International Law dealt twice with the
question of consent in the context of humanitarian assistance.
Its 1989 resolution on the protection of human
rights and the principle of non-intervention in the internal
affairs of States, article 5, second paragraph, states in the
authoritative French text:
Les Etats sur le territoire desquels de telles situations de détresse
[où la population est gravement menacée dans sa vie ou sa santé]
existent ne refuseront pas arbitrairement de pareilles offres de secours
humanitaires.209
In 2003, the Institute of International Law revisited this
issue, stipulating in its resolution on humanitarian assistance
under the heading “Duty of affected States not arbitrarily
to reject bona fide humanitarian assistance”:
Affected States are under the obligation not arbitrarily and unjustifiably
to reject a bona fide offer exclusively intended to provide humanitarian
assistance or to refuse access to the victims. In particular, they
203 See International Covenant on Civil and Political Rights, art. 6,
para. 1.
204 General comment No. 6 (see footnote 180 above), para. 5 (“The
expression ‘inherent right to life’ cannot properly be understood in a
restrictive manner, and the protection of this right requires that States
adopt positive measures”).
205 General Assembly resolution 43/131, eighth preambular paragraph,
and General Assembly resolution 45/100, sixth preambular
paragraph.
206 E/CN.4/1998/53/Add.2, annex.
207 A/59/2005, para. 210.
208 E/CN.4/1998/53/Add.2, annex, principle 25, para. 2.
209 Yearbook of the Institute of International Law, vol. 63, Part II
(see footnote 195 above), p. 345. The French text is presented in mandatory
language, while the English translation reads: “States in whose
territories these emergency situations exist should not arbitrarily reject
such offers of humanitarian assistance.” The explanatory text, “où la
population est gravement menacée dans sa vie ou sa santé”, is drawn
from the first paragraph of article 5 of that resolution.
Protection of persons in the event of disasters 51
may not reject an offer nor refuse access if such refusal would endanger
the fundamental human rights of the victims or would amount to a violation
of the ban on starvation of civilians as a method of warfare.210
(6) In the context of armed conflict, the Security
Council has frequently called upon parties to the conflict
to grant humanitarian access, and on a number of occasions
it has adopted measures in relation to humanitarian
relief operations.211 In response to the humanitarian crisis
caused by the conflict in the Syrian Arab Republic, the
Security Council has adopted a more proactive approach.
In resolution 2139 (2014) of 22 February 2014, it condemned
all cases of denial of humanitarian access and
recalled that “arbitrary denial of humanitarian access
and depriving civilians of objects indispensable to their
survival, including wilfully impeding relief supply and
access, can constitute a violation of international humanitarian
law”.212 In resolution 2165 (2014) of 14 July 2014,
the Security Council decided to authorize United Nations
humanitarian agencies and their implementing partners
to use routes across conflict lines and specified border
crossings to provide humanitarian assistance to people in
need, with notification by the United Nations to the Syrian
authorities.213
(7) The term “withheld” implies a temporal element
in the determination of arbitrariness. Both the refusal of
assistance, and the failure of an affected State to make
known a decision in accordance with draft article 13, paragraph
3, within a reasonable time frame, may be deemed
arbitrary. This view is reflected in General Assembly resolutions
43/131214 and 45/100,215 which each include the
following preambular paragraphs:
Concerned about the [difficulties] that victims of natural disasters
and similar emergency situations may experience in receiving humanitarian
assistance,
Convinced that, in providing humanitarian assistance, in particular
the supply of food, medicines or health care, for which access to victims
is essential, rapid relief will avoid a tragic increase in [their number].
The 2000 Framework Convention on Civil Defence Assistance
likewise reflects among the principles that States
parties, in terms of providing assistance in the event of a
disaster, undertake to respect that “[o]ffers of, or requests
for, assistance shall be examined and responded to by
recipient States within the shortest possible time.”216
(8) The term “arbitrary” directs attention to the basis
of an affected State’s decision to withhold consent. The
determination of whether the withholding of consent is
arbitrary must be made on a case-by-case basis, although
as a general rule several principles can be adduced. First,
210 Resolution on humanitarian assistance (see footnote 21 above),
art. VIII, para. 1.
211 In relation to northern Iraq, by Security Council resolution 688
(1991) of 5 April 1991; in relation to Bosnia and Herzegovina, by
resolution 770 (1992) of 13 August 1992 and resolution 781 (1992) of
9 October 1992; and in relation to Somalia, by resolution 794 (1992) of
3 December 1992.
212 Security Council resolution 2139 (2014) of 22 February 2014,
tenth preambular para.
213 Security Council resolution 2165 (2014) of 14 July 2014, para. 2.
214 Ninth and tenth preambular paras.
215 Eighth and ninth preambular paras.
216 Framework Convention on civil defence assistance, article 3 (e),
also quoted in para. (7) of the commentary to draft article 12.
the Commission considers that withholding consent to
external assistance is not arbitrary where a State is capable
of providing, and willing to provide, an adequate and
effective response to a disaster on the basis of its own
resources. Second, withholding consent to assistance
from one external source is not arbitrary if an affected
State has accepted appropriate and sufficient assistance
from elsewhere. Third, the withholding of consent is
not arbitrary if the relevant offer is not made in accordance
with the present draft articles. In particular, draft
article 6 establishes that humanitarian assistance must
take place in accordance with the principles of humanity,
neutrality and impartiality, and on the basis of non-discrimination.
Conversely, where an offer of assistance is
made in accordance with the draft articles and no alternate
sources of assistance are available, there would be
a strong inference that a decision to withhold consent is
arbitrary.
(9) In 2013, the Secretary-General requested OCHA to
engage in further analysis on the issue of arbitrary withholding
of consent to humanitarian relief operations.217
According to the resulting guidance document,218 consent
is withheld arbitrarily if: (a) it is withheld in circumstances
that result in the violation by a State of its
obligations under international law; or (b) the withholding
of consent violates the principles of necessity and
proportionality; or (c) consent is withheld in a manner
that is unreasonable, unjust, lacking in predictability
or that is otherwise inappropriate. Even if the guidance
addresses situations of armed conflict, it provides valuable
insights in order to establish factors for the determination
of when withholding of consent can be considered
“arbitrary”. It is evident that, in fact as well as in law,
situations of armed conflict differ from disasters. Nevertheless,
in the context of the non-arbitrary withholding
of consent, the subjacent legal issue presents itself in
similar terms in both kinds of situation.
(10) An affected State’s discretion to determine the most
appropriate form of assistance is an aspect of its primary
role in the direction, control, coordination and supervision
of disaster relief assistance under draft article 10, paragraph
2. This discretion must be exercised in good faith
in accordance with an affected State’s international obligations.
219 The Commission encourages affected States
to give reasons where consent to assistance is withheld.
The provision of reasons is fundamental to establishing
the good faith of an affected State’s decision to withhold
consent. The absence of reasons may act to support an
inference that the withholding of consent is arbitrary.
217 See report of the Secretary-General on the protection of civilians
in armed conflict (S/2013/689), 22 November 2013, para. 80.
218 D. Akande and E.-C. Gillard, Oxford Guidance on the Law Relating
to Humanitarian Relief Operations in Situations of Armed Conflict,
Commissioned by the United Nations Office for the Coordination
of Humanitarian Affairs (University of Oxford/OCHA, 2016).
219 See, for example, the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations (footnote 82 above),
noting, inter alia, that “[e]very State has the duty to fulfil in good
faith” obligations assumed by it “in accordance with the Charter of
the United Nations”, “obligations under the generally recognized principles
and rules of international law” and “obligations under international
agreements valid under the generally recognized principles and
rules of international law” (para. 1).
52 Report of the International Law Commission on the work of its sixty-eighth session
(11) In this vein, it is generally accepted in international
law that good faith has, inter alia, the purpose of limiting
the admissible exercise of rights and discretion. The
International Court of Justice and international arbitral
tribunals have in a number of cases examined this function
of good faith.220 Thus, good faith serves as an outer
limit of sovereignty and the exercise of discretion, both in
cases where the decision of a State necessitates the taking
into account of political factors, as well as when the performance
of treaty obligations is at stake. A fortiori this
is the case when the treaty provision in question imposes
positive obligations to act in a certain manner, as for example
in article 6 of the International Covenant on Civil
and Political Rights referred to above.
(12) In paragraph 3, the Commission opted for the phrase
“make known its decision regarding the offer in a timely
manner” to give a certain degree of flexibility to affected
States in determining how best to respond to offers of assistance.
It is recognized that a rigid duty formally to respond
to every offer of assistance may place too high a burden on
affected States in disaster situations. This is balanced by
the indication that the decision ought to be timely, so as to
allow the actor or actors offering the external assistance the
opportunity to react appropriately. The Commission considers
the current formulation to encompass a wide range
of possible means of response, including a general publication
of the affected State’s decision regarding all offers of
assistance. The paragraph applies to both situations where
an affected State accepts assistance and situations in which
an affected State withholds its consent.
(13) The Commission considers the phrase “whenever
possible” to have a restricted scope. The phrase directs
attention to extreme situations where a State is incapable
of forming a view regarding consent due to the lack
of a functioning Government or circumstances of equal
incapacity. The phrase is thus meant to convey the sense
of general flexibility on which the provision is built. The
phrase also circumscribes the applicability of the expression
“in a timely manner”. The Commission is further of
the view that an affected State is capable of making its
decision known in the manner it feels most appropriate if
the exceptional circumstances outlined in this paragraph
are not applicable.
Article 14. Conditions on the provision
of external assistance
The affected State may place conditions on the provision
of external assistance. Such conditions shall be
in accordance with the present draft articles, applicable
rules of international law and the national law of
the affected State. Conditions shall take into account
the identified needs of the persons affected by disasters
and the quality of the assistance. When formulating
conditions, the affected State shall indicate the scope
and type of assistance sought.
220 Admission of a State to the United Nations (Charter, Art. 4), Advisory
Opinion, I.C.J. Reports 1948, p. 57, at pp. 63–64; Case concerning
rights of nationals of the United States of America in Morocco,
Judgment of 27 August 1952, I.C.J. Reports 1952, p. 176, at p. 212;
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
v. France), Judgment, I.C.J. Reports 2008, p. 177, at p. 229, para. 145;
and The North Atlantic Coast Fisheries Case (Great Britain, United
States of America), award of 7 September 1910, UNRIAA, vol. XI
(Sales No. 61.V.4), p. 167, at p. 188.
Commentary
(1) Draft article 14 addresses the setting of conditions
by the affected State on the provision of external assistance
in its territory or in territory under its jurisdiction or
control. It affirms the right of the affected State to place
conditions on such assistance, in accordance with the
present draft articles and applicable rules of international
and national law. The draft article indicates how such conditions
are to be determined. The identified needs of the
persons affected by disasters and the quality of the assistance
guide the nature of the conditions. It also requires the
affected State, when formulating conditions, to indicate
the scope and type of assistance sought.
(2) The draft article furthers the principle enshrined in
draft article 10, which recognizes the primary role of the
affected State in the direction, control, coordination and
supervision of disaster relief assistance in its territory, or in
territory under its jurisdiction or control. By using the phrasing
“may place conditions”, which accords with the voluntary
nature of the provision of assistance, draft article 14
acknowledges the right of the affected State to impose
conditions for such assistance, preferably in advance of a
disaster’s occurrence but also in relation to specific forms
of assistance by particular actors during the response phase.
The Commission makes reference to “external” assistance
because the scope of the provision covers the assistance
provided by third States or other assisting actors, but not
assistance provided from internal sources, such as domestic
non-governmental organizations.
(3) The draft article places limits on an affected State’s
right to condition assistance, which must be exercised
in accordance with applicable rules of law. The second
sentence outlines the legal framework within which conditions
may be imposed, which comprises “the present
draft articles, applicable rules of international law and the
national law of the affected State”. The Commission included
the phrase “the present draft articles” to stress that
all conditions must be in accordance with the principles
reflected in the draft articles, there being no need to repeat
an enumeration of the humanitarian and legal principles
already addressed elsewhere, notably, sovereignty, good
faith and the humanitarian principles dealt with in draft
article 6, that is, humanity, neutrality, impartiality and
non-discrimination.
(4) The reference to national law emphasizes the authority
of domestic laws in the particular affected area. It
does not, however, imply the prior existence of national
law (internal law) addressing the specific conditions
imposed by an affected State in the event of a disaster.
Although there is no requirement of specific national legislation
before conditions can be fixed, they must be in
accordance with whatever relevant domestic legislation is
in existence in the affected State, as envisaged in draft
article 15.
(5) The affected State and the assisting actor must both
comply with the applicable rules of national law of the
affected State. The affected State may only impose conditions
that are in accordance with such laws and the
assisting actor must comply with such laws at all times
throughout the duration of assistance. This reciprocity is
Protection of persons in the event of disasters 53
not made explicit in the draft article, since it is inherent
in the broader principle of respect for national law. Existing
international agreements support the affirmation
that assisting actors must comply with national law. The
ASEAN Agreement, for example, provides in article 13,
paragraph 2, that “[m]embers of the assistance operation
shall respect and abide by all national laws and regulations.”
Several other international agreements also require
assisting actors to respect national law221 or to act in accordance
with the law of the affected State.222
(6) The duty of assisting actors to respect national law
implies the obligation to require that: members of the
relief operation observe the national laws and regulations
of the affected State;223 the head of the relief operation
take all appropriate measures to ensure the observance of
the national laws and regulations of the affected State;224
and assisting personnel cooperate with national authorities.
225 The obligation to respect the national law and to
cooperate with the authorities of the affected State accords
with the overarching principle of the sovereignty of the
affected State and the principle of cooperation.
(7) The right to condition assistance is the recognition of
a right of the affected State to deny unwanted or unneeded
assistance, and to determine what and when assistance is
appropriate. The third sentence of the draft article gives
an explanation of what is required of conditions set by
affected States, namely, that they must “take into account”
not only the identified needs of the persons affected by
disasters but also the quality of the assistance. Nevertheless,
the phrase “take into account” does not denote that
conditions relating to the identified needs and the quality
of assistance are the only ones that States can place on the
provision of external assistance.
(8) The Commission included the word “identified” to
signal that the needs must be apparent at the time conditions
are set and that needs can change as the situation
on the ground changes and more information becomes
available. It implies that conditions should not be arbitrary,
but be formulated with the goal of protecting those
affected by a disaster. “Identified” indicates that there
must be some process by which needs are made known,
which can take the form of a needs assessment, preferably
also in consultation with assisting actors. However,
the procedure to identify needs is not predetermined and
it is left to the affected State to follow the most suitable
221 See, for example, the Inter-American Convention to Facilitate
Disaster Assistance, arts. VIII and XI, para. (d), and the Convention
on Assistance in the Case of a Nuclear Accident or Radiological Emergency,
art. 8, para. 7.
222 Ibid.; and the Agreement among the Governments of the Participating
States of the Black Sea Economic Cooperation (BSEC) on
Collaboration in Emergency Assistance and Emergency Response to
Natural and Man-made Disasters (1998), arts. 5 and 9.
223 See, for example, the Convention on the Transboundary Effects
of Industrial Accidents, 17 March 1992, annex X, para. 1 (“The personnel
involved in the assisting operation shall act in accordance with the
relevant laws of the requesting Party”).
224 See, for example, the ASEAN Agreement, art. 13, para. 2 (“The
Head of the assistance operation shall take all appropriate measures to
ensure observance of national laws and regulations”).
225 See, for example, MacAlister-Smith (footnote 73 above),
para. 22 (b) (“At all times during humanitarian assistance operations
the assisting personnel shall … [c]ooperate with the designated competent
authority of the receiving State”).
one. This is a flexible requirement that may be satisfied
according to the circumstances of a disaster and the
capacities of the affected State. In no instance should
identifying needs hamper or delay prompt and effective
assistance. The provision of the third sentence is meant
to “meet the essential needs of the persons concerned”
in the event of a disaster, as expressed in draft article 2,
and should be viewed as further protection of the rights
and needs of persons affected by disasters. The reference
to “needs” in both draft articles is broad enough
to encompass the special needs of women, children, the
elderly, persons with disabilities, and vulnerable or disadvantaged
persons and groups.
(9) The inclusion of the word “quality” is meant to
ensure that affected States have the right to reject assistance
that is not necessary or that may be harmful. Conditions
may include restrictions based on, inter alia, safety,
security, nutrition and cultural appropriateness.
(10) Draft article 14 contains a reference to the “scope
and type of assistance sought”. This is in line with previous
international agreements that contain a similar provision.226
By the use of the words “shall indicate” the draft article
puts the onus on the affected State to specify the type and
scope of assistance sought when placing conditions on assistance.
At the same time, it implies that once fixed, the
scope and type of such assistance will be made known to
the assisting actors that may provide it, which would facilitate
consultations. This will increase the efficiency of the
assistance process and will ensure that appropriate assistance
reaches those in need in a timely manner.
(11) The Commission considered several possibilities
for the proper verb to modify the word “conditions”.
The Commission’s decision to use two different words,
“place” and “formulate”, is a stylistic choice that does not
imply differentiation of meaning between the two uses.
Article 15. Facilitation of external assistance
1. The affected State shall take the necessary
measures, within its national law, to facilitate the
prompt and effective provision of external assistance,
in particular regarding:
(a) relief personnel, in fields such as privileges and
immunities, visa and entry requirements, work permits,
and freedom of movement; and
(b) equipment and goods, in fields such as customs
requirements and tariffs, taxation, transport, and the
disposal thereof.
2. The affected State shall ensure that its relevant
legislation and regulations are readily accessible, to
facilitate compliance with national law.
Commentary
(1) Draft article 15 addresses the facilitation of external
assistance. This includes ensuring that national law
226 See, for example, the Tampere Convention, article 4, para. 2)
(“A State Party requesting telecommunication assistance shall specify
the scope and type of assistance required …”).
54 Report of the International Law Commission on the work of its sixty-eighth session
accommodates the provision of prompt and effective assistance.
To that effect, it further requires, in paragraph 2,
the affected State to ensure that its relevant legislation and
regulations are readily accessible to assisting actors.
(2) The draft article provides that affected States
“shall take the necessary measures” to facilitate the
prompt and effective provision of assistance. The
phrase “take the necessary measures, within its national
law” may include, inter alia, legislative, executive or
administrative measures. Measures may also include
actions taken under emergency legislation, as well as
permissible temporary adjustment or waiver of the
applicability of particular national legislation or regulations,
where appropriate. It can also extend to practical
measures designed to facilitate external assistance,
provided that they are not prohibited by national law.
In formulating the draft article in such a manner, the
Commission encourages States to allow for temporary
non-applicability of their national laws that might
unnecessarily hamper assistance in the event of disasters
and for appropriate provisions on facilitation to be
included within their national law so as not to create
any legal uncertainty in the critical period following a
disaster when such emergency provisions become necessary.
Certain facilitation measures may also remain
necessary even after the need for assistance has passed,
in order to guarantee an efficient and appropriate withdrawal,
handover, exit and/or re-export of relief personnel,
equipment and unused goods upon termination of
external assistance. This is emphasized by the use of the
expression “disposal thereof” in paragraph 1 (b). While
the focus of draft article 15 is on the affected State, the
facilitation for the benefit of persons affected by disasters
implies that a transit State will likely take the necessary
measures, within its national law, to ensure an
effective provision of external assistance.
(3) The draft article outlines examples of areas of assistance
in which national law should enable the taking
of appropriate measures. The words “in particular” before
the examples indicate that this is not an exhaustive list,
but rather an illustration of the various areas that may
need to be addressed by national law to facilitate prompt
and effective assistance. Guidance on such measures
can be found in relevant instruments, such as the 2007
IDRL Guidelines227 and the related 2013 Model Act for
the Facilitation and Regulation of International Disaster
Relief and Initial Recovery Assistance.228
(4) Subparagraph (a) envisages facilities for relief personnel.
The areas addressed in the subparagraph provide
guidance on how personnel can be better facilitated.
Granting of privileges and immunities to assisting actors
is an important measure included in many international
agreements to encourage the help of foreign aid workers.
229 Waiver or expedition of visa and entry requirements
and work permits is necessary to ensure prompt
227 See footnote 20 above.
228 Elaborated by IFRC, OCHA and the Inter-Parliamentary Union,
2013.
229 See, for example, the Framework Convention on civil defence
assistance, art. 4, para. 5 (“The Beneficiary State shall, within the
framework of national law, grant all privileges, immunities, and facilities
necessary for carrying out the assistance …”).
assistance.230 Without a special regime in place, workers
may be held up at borders or be unable to work legally
during the critical days after a disaster, or forced to exit
and re-enter continually so as not to overstay their visas.
Freedom of movement means the ability of workers to
move freely within a disaster area in order to properly perform
their specifically agreed functions.231 Unnecessary
restriction of movement of relief personnel inhibits workers’
ability to provide flexible assistance.
(5) Subparagraph (b) addresses equipment and goods,
as defined in draft article 3, subparagraph (g), which
encompasses supplies, tools, machines, specially trained
animals, foodstuffs, drinking water, medical supplies,
means of shelter, clothing, bedding, vehicles, telecommunications
equipment and other objects for disaster relief
assistance. The Commission intends that this category
also includes search dogs, which are normally regarded
as goods and equipment, rather than creating a separate
category for animals. Goods and equipment are essential
to the facilitation of effective assistance and national
laws must be flexible to address the needs of persons affected
by disasters and to ensure prompt delivery. Customs
requirements and tariffs, as well as taxation, should
be waived or lessened in order to reduce costs and prevent
delay in the provision of goods.232 Equipment and
goods that are delayed can quickly lose their usefulness
and normal procedures in place aiming at protecting the
economic interests of a State can become an obstacle
in connection with aid equipment that can save lives or
provide needed relief. States can therefore reduce, prioritize
or waive inspection requirements at borders with
regard to equipment and goods related to assisting States
and other assisting actors. National regulation can also
address overflight and landing rights, tools, minimization
of documentation required for import and transit of
equipment and goods and temporary recognition of foreign
registration of vehicles. Subparagraph (b) does not
provide an exhaustive list of potential measures aimed at
facilitating external assistance in relation to equipment
and goods. For instance, given the crucial role of telecommunications
in emergency situations, it will often be necessary
to reduce or limit regulations restricting the use of
telecommunication equipment or of the radio-frequency
spectrum, as envisaged by the 1998 Tampere Convention.
(6) The second paragraph of the draft article requires
that all relevant legislation and regulations be readily
accessible to assisting actors. By using the words “readily
accessible”, what is required is ease of access to such
laws, including, when necessary, their translation into
230 The League of Red Cross Societies (now IFRC) has long noted
that “the obtaining of visas for disaster and relief delegates and teams
remains a time-consuming procedure which often delays the dispatch
of such delegates and teams”, thus delaying the vital assistance the affected
State has a duty to provide (see resolution No. 13 adopted by the
League of Red Cross Societies Board of Governors at its 33rd session,
Geneva, 28 October to 1 November 1975).
231 See M. El Baradei, et al., Model Rules for Disaster Relief Operations,
Policy and Efficacy Studies No. 8 (United Nations publication,
Sales No. E.82.XV.PE/8), annex A, rule 16, which states that an affected
State must permit assisting personnel “freedom of access to, and
freedom of movement within, disaster stricken areas that are necessary
for the performance of their specifically agreed functions”.
232 This is stressed in various international treaties. See, for example,
the Tampere Convention, article 9, para. 4, and the ASEAN Agreement,
article 14 (b).
Protection of persons in the event of disasters 55
other languages, without creating the burden on the affected
State to provide this information separately to all
assisting actors. This paragraph also confirms the importance
of States introducing domestic regulations concerning
the facilitation of external assistance in advance
of disasters, as envisaged in draft article 9, paragraph 1.
Article 16. Protection of relief personnel,
equipment and goods
The affected State shall take the appropriate measures
to ensure the protection of relief personnel and
of equipment and goods present in its territory, or in
territory under its jurisdiction or control, for the purpose
of providing external assistance.
Commentary
(1) Draft article 16 establishes the obligation for the affected
State to take the measures that would be appropriate
in the circumstances to ensure the protection of relief personnel,
equipment and goods involved in the provision of
external assistance. Taking into account the often chaotic
situations arising from disasters, the security concerns for
such individuals and objects might create obstacles for the
carrying out of activities aimed at giving support to the
victims, thus reducing the likelihood that their essential
needs would be properly satisfied.
(2) This draft article, therefore, complements draft
article 15 in establishing a coherent set of obligations
whereby the affected State is expected to perform a series
of activities that are necessary in order to guarantee to
assisting States and other assisting actors the possibility
of delivering efficient and prompt assistance. Nevertheless,
the two provisions have a somewhat different focus
and approach. Draft article 15 highlights the need for the
affected State to establish a domestic legal order capable
of facilitating the external assistance, mainly through the
adoption of a series of legislative and regulatory actions.
On the other hand, the question of the protection of relief
personnel and their equipment and goods has traditionally—
and for compelling policy reasons owing to its
nature and the kind of measures to be adopted—been
dealt with as a distinct matter, deserving of its own separate
treatment, as the present draft article does.
(3) The measures to be adopted by the affected State
may vary in content and can imply different forms of State
conduct due to the context-driven nature of the obligation
concerned. In particular, the flexibility inherent in the
concept of “appropriate measures” suggests that the affected
State may assume different obligations depending
on the actors involved in potential threats to relief personnel,
equipment and goods.
(4) A preliminary requirement for the affected State is to
prevent its organs from adversely affecting relief activities.
In this case, the duty imposed on the affected State is not to
cause harm to the personnel, equipment and goods involved
in external assistance through acts carried out by its organs.
(5) Secondly, draft article 16 contemplates a series of
measures to be adopted to prevent detrimental activities
caused by non-State actors aimed, for instance, at profiting
from the volatile security conditions that may ensue
from disasters in order to obtain illicit gains from criminal
activities directed against disaster relief personnel,
equipment and goods. The affected State is not expected
to succeed, whatever the circumstances, in preventing
the commission of harmful acts but rather to endeavour
to attain the objective sought by the relevant obligation.
In particular, the wording “appropriate measures” allows
a margin of discretion to the affected State in deciding
what actions to take in this regard. It requires the State to
act in a diligent manner in seeking to avoid the harmful
events that may be caused by non-State actors. Measures
to be taken by States in the realization of their best efforts
to achieve the expected objective are context-dependent.
Consequently, draft article 16 does not list the means to
achieve the result aimed at, as this obligation can assume
a dynamic character according to the evolving situation.
(6) Diverse circumstances might be relevant to evaluate
the appropriateness of the measures to be taken in a
disaster situation in implementation of this obligation.
These include the difficulties that a State might encounter
when attempting to perform its regular activities, due to
the unruly situation created by the magnitude of the disaster
and the deterioration of its economic situation, and
the extent of the resources at the disposal of the concerned
State, which might have been seriously affected by the
disaster, as well as its capacity to exercise control in some
areas involved in the disaster. The same applies to the security
conditions prevailing in the relevant area of operations
and the attitude and behaviour of the humanitarian
actors involved in relief operations. In fact, even if external
actors are requested to consult and cooperate with the
affected State on matters of protection and security, they
might disregard the directive role attributed to the local
authorities, thus increasing the possibility of their being
faced with security risks. Furthermore, if harmful acts are
directed against relief personnel, equipment and goods,
the affected State shall address them by exercising its
inherent competence to repress crimes committed within
the area on which a disaster occurs.
(7) International humanitarian actors can themselves
contribute to the realization of the goal sought by adopting,
in their own planning and undertaking of operations,
a series of mitigation measures geared to reducing their
vulnerability to security threats. This may be achieved,
for instance, through the elaboration of proper codes of
conduct, training activities, and furnishing appropriate information
about the conditions under which their staff are
called upon to operate and the standards of conduct they
are required to meet. In any event, the adoption of such
mitigating measures should not interfere with the taking
of autonomous measures by the affected State.
(8) At the same time, it must be emphasized that security
risks should be evaluated having in mind the
character of relief missions and the need to guarantee to
victims an adequate and effective response to a disaster.
Draft article 16 should not be misinterpreted as entailing
the creation of unreasonable and disproportionate hurdles
for relief activities. As already emphasized with regard to
draft article 15, the measures that, based on security concerns,
may be adopted to restrict the movement of relief
personnel should not result in unnecessarily inhibiting the
capacity of these actors to provide assistance to the victims
of disasters.
56 Report of the International Law Commission on the work of its sixty-eighth session
(9) Similarly, the possibility of resorting to armed
escorts in disaster relief operations to dispel safety concerns
should be strictly assessed according to the best
practices developed in this area by the main humanitarian
actors. Particular attention is drawn to the 2013 Inter-
Agency Standing Committee Non-Binding Guidelines on
the Use of Armed Escorts for Humanitarian Convoys,233
which are designed to assist relevant actors in evaluating,
in an appropriate manner, the taking of such a sensitive
course of action. As explained in that document, humanitarian
convoys will not, as a general rule, use armed
escorts unless exceptional circumstances are present that
make the use of armed escorts necessary. In order for the
exception to be adopted, the consequences of and the possible
alternatives to the use of armed escorts should be
considered by the relevant actors, especially taking into
account that the security concerns that may prevail in disaster
situations may be far less serious than those present
in other scenarios.
(10) Draft article 16 provides protection for “relief
personnel, equipment and goods”, that is, the pertinent
persons and objects qualified as such in draft article 3,
subparagraphs (f ) and (g), and involved in providing
external assistance. As emphasized in other provisions of
the current draft articles, mainly draft articles 10 and 13,
external assistance is contingent upon the consent of the
affected State, which has the primary role in the direction,
control, coordination and supervision of such activities.
Therefore, once the affected State has requested assistance
or has accepted offers submitted by assisting States,
it shall endeavour to guarantee the protection prescribed
in draft article 16.
(11) Such a comprehensive approach is relevant for the
proper fulfilment of the obligation enshrined in draft article
16. Domestic authorities are best placed to assure a
proper safety framework for the performance of relief activities.
In particular, they are requested to evaluate the
security risks that might be incurred by international relief
personnel, to cooperate with them in dealing with safety
issues and to coordinate the activities of external actors,
taking into account those concerns.
(12) In accordance with draft article 3, subparagraph (f ),
the relief personnel that would potentially benefit from
draft article 16 may belong to either the civilian or military
personnel sent, as the case may be, by an assisting
State or other assisting actor, namely a competent intergovernmental
organization, or a relevant non-governmental
organization or entity, providing assistance to an
affected State with its consent. All these categories are,
thus, pertinent regarding the application of draft article
16. The reference to the term “external assistance”
reflects the position, also affirmed in the commentary to
draft article 14,234 that the articles only regulate the activities
of actors that are external to the affected State.
(13) Equipment and goods, as defined in draft article 3,
subparagraph (g), relating to the activities of relief personnel,
likewise benefit from the application of draft
233 “IASC Non-Binding Guidelines on the Use of Armed Escorts for
Humanitarian Convoys”, endorsed by the Inter-Agency Standing Committee
on 27 February 2013.
234 See para. (2) of the commentary to draft article 14 above.
article 16. Being at the disposal of assisting States or other
assisting actors, equipment and goods will be covered by
the application of draft article 16 independently from their
origin. These objects could also be directly acquired in
the domestic market of the affected State. The wording
“present in its territory, or in territory under its jurisdiction
or control” is intended to clarify this aspect.
Article 17. Termination of external assistance
The affected State, the assisting State, the
United Nations, or other assisting actor may terminate
external assistance at any time. Any such State or actor
intending to terminate shall provide appropriate notification.
The affected State and, as appropriate, the
assisting State, the United Nations, or other assisting
actor shall consult with respect to the termination of
external assistance and the modalities of termination.
Commentary
(1) Draft article 17 deals with the question of termination
of external assistance. The provision comprises three
sentences. The first sentence confirms the basic right of
the actors concerned, namely the affected State, the assisting
State, the United Nations, or other assisting actor, to
terminate external assistance at any time. The second
sentence sets out the requirement that parties intending
to terminate assistance provide appropriate notification.
The third sentence concerns the requirement that the affected
State and, as appropriate, the assisting State, the
United Nations, or other assisting actor consult each other
as regards the termination of external assistance, including
the modalities of such termination. It is understood that
the reference to termination of assistance includes both
whole or partial termination. An express reference to the
United Nations among the potential assisting actors has
also been made in draft article 17, given its central role in
the provision of relief assistance.
(2) When an affected State accepts an offer of assistance,
it retains control over the duration for which that
assistance will be provided. Draft article 10, paragraph 2,
explicitly recognizes that the affected State has the primary
role in the direction, control, coordination and
supervision of disaster relief assistance in its territory.
For its part, draft article 13 requires the consent of the
affected State to external assistance, with the caveat that
consent shall not be withheld arbitrarily. The combined
import of the foregoing provisions is that the affected
State can withdraw consent, thereby terminating external
assistance.
(3) Draft article 17 does not recognize the right of only
the affected State to unilaterally terminate assistance.
Instead, the Commission acknowledges that assisting
States, the United Nations and other assisting actors may
themselves need to terminate their assistance activities.
Draft article 17 thus preserves the right of any party to
terminate the assistance being provided.
(4) Draft article 17 should be read in the light of the
purpose of the draft articles, as indicated in draft article 2.
Accordingly, decisions regarding the termination of assistance
are to be made taking into consideration the needs
Protection of persons in the event of disasters 57
of the persons affected by disaster, namely, whether and
how far such needs have been met so that the termination
of external assistance does not adversely impact persons
affected by a disaster, as a premature decision to terminate
assistance could be a setback for recovery.
(5) The Commission anticipates that termination may
become necessary for a variety of reasons and at different
stages during the provision of assistance. The relief
operations may reach a stage where either the affected
State or one or more of the assisting actors feel they must
cease operations. Circumstances leading to termination
may include instances in which the resources of an assisting
State or other assisting actor are depleted or where
the occurrence of another disaster makes the diversion
of resources necessary. In a similar vein, affected States
ought to be able to terminate assistance that had become
irrelevant or had deviated from the original offers. Draft
article 17 is flexible, allowing for the adjustment of the
duration of assistance according to the circumstances,
while implying that parties should consult in good faith.
Draft article 17 is drafted in bilateral terms, but it does not
exclude the scenario of multiple assisting actors providing
external assistance.
(6) In the Commission’s 1989 draft articles on the status
of the diplomatic courier and the diplomatic bag not
accompanied by diplomatic courier, article 9, paragraph 2,
states that “[t]he diplomatic courier may not be appointed
from among persons having the nationality of the receiving
State except with the consent of that State, which may be
withdrawn at any time”.235 According to the corresponding
commentary, “[t]he words ‘at any time’ are not intended to
legitimize any arbitrary withdrawal of consent”.236
(7) The second sentence establishes a requirement of
notification by the party intending to terminate external
assistance. Appropriate notification is necessary to ensure
a degree of stability in the situation, so that no party is
adversely affected by an abrupt termination of assistance.
The provision is drafted flexibly so as to anticipate notification
before, during or after the consultation process.
No procedural constraints have been placed on the notification
process. However, notification should be “appropriate”
according to the circumstances, including the form
and timing, preferably early, of the notification.
(8) The requirement to consult, in the third sentence, reflects,
as stressed in the preamble, the spirit of solidarity
and cooperation implicit throughout the draft articles and
the principle of cooperation enshrined in draft articles 7
and 8. The word “modalities” refers to the procedures to
be followed in terminating assistance. Even though termination
on a mutual basis may not always be feasible,
consultation in relation to the modalities would enable
the relevant parties to facilitate an amicable and efficient
termination. The reference to the term “as appropriate”
clarifies that the anticipated consultation takes place between
the affected State, on the one hand, and, on the
other hand, any other actor (whether an assisting State,
the United Nations or other assisting actor) providing the
assistance.
235 Yearbook … 1989, vol. II (Part Two), p. 21, para. 72.
236 Ibid., p. 22, para. (4) of the commentary to draft art. 9.
Article 18. Relationship to other rules
of international law
1. The present draft articles are without prejudice
to other applicable rules of international law.
2. 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.
Commentary
(1) Draft article 18 deals with the relationship between
the draft articles and other rules of international law. It
seeks to clarify the way in which the draft articles interact
with certain rules of international law that either deal
with the same subject matter as the draft articles or are not
directly concerned with disasters but would nonetheless
apply in situations covered by the draft articles.
(2) The reference to “other rules” in the title aims at
safeguarding the continued application of existing obligations
regarding matters covered by the present draft
articles. The formulation “other applicable rules of international
law”, in paragraph 1, is intentionally flexible,
without referring to such other rules as being “special” in
relation to the draft articles, since that may or may not be
the case depending on their content.
(3) Paragraph 1 is meant to cover different forms of
“other applicable rules of international law”. Those include,
in particular, more detailed rules enshrined in
treaties the scope of which falls ratione materiae within
that of the present draft articles (for example, regional or
bilateral treaties on mutual assistance in case of disasters)
as well as those included in treaties devoted to other matters
but which contain specific rules addressing disaster
situations.237
(4) This draft article also deals, in paragraph 1, with the
interaction between the present draft articles and rules of
international law that are not directly concerned with disasters,
but that nonetheless may be applied in the event of
disasters. Examples would be provisions concerning the
law of treaties—in particular, those related to supervening
impossibility of performance and fundamental change of
circumstances—as well as the rules on the responsibility
of States and international organizations and the responsibility
of individuals. The provision confirms that such
a category of rules is not displaced by the present draft
articles.
(5) The “without prejudice” clause in draft article 18
also applies to the rules of customary international law.
In fact, the draft articles do not cover all the issues that
may be relevant in the event of disasters. Moreover, the
draft articles do not intend to preclude the further development
of rules of customary international law in this
field. As such, the draft article is inspired by the penultimate
preambular paragraph of the Vienna Convention on
the Law of Treaties of 1969, which states that “the rules
237 See, for example, section 5, sub-section F, of the annex to the
1965 Convention on Facilitation of International Maritime Traffic
(modified in 1977).
58 Report of the International Law Commission on the work of its sixty-eighth session
of customary international law will continue to govern
questions not regulated by the provisions of the present
Convention”.
(6) In addition, it should be borne in mind that rules of
general application not directly concerned with disasters
might also be contained in treaty law. The Commission
therefore considered that the wording “other applicable
rules of international law” was the most appropriate to
indicate all rules of international law that might interact
with the draft articles, for it expresses the idea that the
“without prejudice” clause in draft article 18 applies to all
categories of international law rules.
(7) Paragraph 2 deals specifically with the relationship
between the draft articles and international humanitarian
law. The provision is formulated in a manner intended to
clarify the relationship by giving precedence to the rules
of international humanitarian law.
(8) The Commission considered including an express
exclusion of the applicability of the draft articles in situations
of armed conflict as a further element in the definition
of “disaster” (draft article 3, subparagraph (a)), so as
to avoid any interpretation that, for purposes of the draft
articles, armed conflict would be covered to the extent
that the threshold criteria in draft article 3 were satisfied.
Such an approach was not followed since a categorical
exclusion could be counterproductive, particularly in situations
of “complex emergencies” where a disaster occurs
in an area where there is an armed conflict. A blank exclusion
of the applicability of the draft articles because of the
coexistence of an armed conflict would be detrimental to
the protection of the persons affected by the disaster, especially
when the onset of the disaster predated the armed
conflict.238
(9) In such situations, the rules of international humanitarian
law shall be applied as lex specialis, whereas the
rules contained in the present draft articles would continue
to apply “to the extent” that legal issues raised by
a disaster are not covered by the rules of international
humanitarian law. The present draft articles would thus
contribute to filling legal gaps in the protection of persons
affected by disasters during an armed conflict while
international humanitarian law shall prevail in situations
regulated by both the draft articles and international humanitarian
law. In particular, the present draft articles are
not to be interpreted as representing an obstacle to the
ability of humanitarian organizations to conduct, in times
of armed conflict (be it international or non-international)
even when occurring concomitantly with disasters, their
humanitarian activities in accordance with the mandate
assigned to them by international humanitarian law.
238 See para. (10) of the commentary to draft article 3 above.
United Nations A/RES/71/141
General Assembly Distr.: General
19 December 2016
Seventy-first session
Agenda item 78
16-21347 (E)
*1621347* Please recycle
Resolution adopted by the General Assembly on 13 December 2016
[on the report of the Sixth Committee (A/71/509)]
71/141. Protection of persons in the event of disasters
The General Assembly,
Having considered chapter IV of the report of the International Law
Commission on the work of its sixty-eighth session, 1 which contains the draft
articles on the protection of persons in the event of disasters, 2
Noting that the Commission decided to recommend to the General Assembly
the elaboration of a convention on the basis of the draft articles, 3
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1 (a), of the
Charter of the United Nations,
Noting that the subject of the protection of persons in the event of disasters is
of major importance in the relations of States,
Taking into account views and comments expressed in the Sixth Committee on
chapter IV, on the protection of persons in the event of disasters, of the report of the
Commission,
1. Expresses its appreciation to the International Law Commission for its
continuing contribution to the codification and progressive development of
international law;
2. Takes note of the draft articles on the protection of persons in the event
of disasters, presented by the Commission,2 and invites Governments to submit
comments concerning the recommendation by the Commission to elaborate a
convention on the basis of these articles;3
3. Decides to include in the provisional agenda of its seventy -third session
an item entitled “Protection of persons in the event of disasters”.
62nd plenary meeting
13 December 2016
_______________
1 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10).
2 Ibid., para. 48.
3 Ibid., para 6.
PART IV (C): Protection of persons in the event of disasters