CYIL 2014

THE INTERNATIONAL LAW COMMISSION AT THE MIDǧPOINT OF ITS QUINQUENNIUM Most draft articles address forms and modalities of cooperation, including external assistance, in case of disasters. They include duty of States and cooperation to reduce the risk of disasters (Arts. 10 and 11). The key provision is set in Article 12, according to which the affected State, by virtue of its sovereignty, has the duty to ensure the protection of persons and provision of disaster relief and assistance on its territory. In the same vein, “to the extent that a disaster exceeds its national response capacity, the affected State has the duty to seek assistance from among other States, the United Nations, other competent intergovernmental organizations and relevant non-governmental organizations, as appropriate.” 9 On balance, the provision of external assistance requires the consent of the affected State which may place conditions on its provision, in accordance with the present draft articles, applicable rules of international law and the national law of the affected State (Arts. 14 and 15). States, the United Nations, and other competent intergovernmental organizations have the right to offer assistance. Relevant NGOs may also offer assistance to the affected State (Art. 16). Two other articles deal with the facilitation of external assistance and protection of relief personnel, equipment and goods (Arts. 17 and 18). Termination of external assistance requires appropriate notification and consultations (Art. 19). The last two draft articles (Arts. 20 and 21) are final and without prejudice clauses, delimiting thus the relationship to special and other rules of international law. In particular, the present draft articles do not apply to situations to which the rules of international humanitarian law are applicable. It is clear that draft articles on protection of persons in the event of disasters apply to different situations than the rules of IHL and the concept of the Responsibility to protect (R2P). Although the Commission considered an express exclusion of the applicability of the draft articles to situations of armed conflict, this approach could be counterproductive. As explained in the commentary, a blank exclusion of the applicability of the draft articles because of the existence of an armed conflict would be detrimental to the protection of the persons affected by the disaster, especially when the onset of the disaster pre-dated the armed conflict. 10 To sum up, the draft articles present a well-balanced result of the work of the Commission on the topic with a considerable importance for practice. Of course, States and other stakeholders will have a say before the second reading. The ILC decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft articles to Governments, competent international organizations, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies for comments and observations to be submitted to the Secretary General by 1 January 2016. 11

9 Ibid., p. 6. 10 See doc. A/CN.4/838/Add.1 (2014), p. 50. 11 See doc. A/CN.4/L.835 (2014), p. 1, § 3.

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