CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ INTERNATIONAL RESPONSIBILITY IN THE CONTEXT OF DISASTER RESPONSE The Articles on the Responsibility of States for Internationally Wrongful Act encompasses standing international customary law regarding the responsibility of the state for the breach of its international obligation. There are two conditions of the applicability of international responsibility: a) the actual breach of obligation that is valid and in existence and b) the attributability of such breach to the state under the condition that none of the circumstances excluding wrongfulness is present in the situation. 23 Assessment of responsibility for failure in disaster risk reduction must be thus based on the existence of legal obligation. Such an obligation must be derived from legal custom or found within the international treaties. When referring to the sources like the Hyogo Framework or Sendai Framework or even the ILC’s Draft Articles, it must be noted that these do not establish any legal obligation of the state. It is usual that the adoption of Draft Articles in some field is followed by the adoption of these within the UN General Assembly resolution, where it is declared that the codification and progressive development took place and the Draft Articles are actually the result of the process. However, no such act occurred in respect to the Draft Articles on Protection of Persons in the Event of Disaster. Any claim of existence of customary law in that matter would be at least premature. Indeed, the legal obligation exists there where the treaty had been negotiated by the states. However, the legal regulation in the treaties is partial and dispersed and no general international law exists. Does it imply that the responsibility in case of disaster risk reduction does not exist? As the ILC points out, there is significant impact of other norms of international public law on the international disaster response law (IDRL), predominantly we can speak about the international human rights law and international humanitarian law. Article 4 and Article 5 of the Draft Articles prove that the focal point of rules for disaster response are human rights. Article 4 stresses the need for respect of human dignity and Article 5 states that “ Persons affected by disasters are entitled to the respect for and protection of their human rights. ” It can be stated that Article 5 aims towards affected people, thus granting protection to people affected by the disaster that actually happened , while disaster risk reduction ex definitione entails those measures that are mainly preventive by nature. However, the wording of Article 5 suggests that it is meant to be a safeguard of human rights protection in the time of crisis rather than the setter of the new legal regime. The obligation to protect human rights is binding upon the state prior to the disaster (during the phase of “prevention ”) and after the event of disaster as well. Thus the failure of the state to adopt and execute appropriate measures of disaster risk reduction may result in violation of the human rights of particular individuals. The instances in the case law of the European Court of Human Rights (ECtHR) shows that the connection between human rights and disaster risk reduction is not as impossible as it seems to be at first sight. In the Öneryildiz v. Turkey case in 2004 ECtHR 24 it was declared that Article 2 (Right to Life) of European Convention of Human Rights (ECHR) had been violated due to the failure of authorities to take appropriate measures to prevent an industrial disaster, although the expert reports suggested that preventive measures will be necessary to prevent the disaster. The ECtHR also declared that Article 1 of Protocol no. 1 to the ECHR had been violated as well. 25 In Budayeva 23 See: Article 2, Articles on Responsibility of States for Internationally Wrongful Act (see: United Nations General Assembly Resolution A/RES/56/83 adopted on 12 December 2001. 24 For the purpose of this paper the abbreviation ECtHR refers to the European Court of Human Rights, whereas ECHR refers to the European Convention of Human Rights. 25 Öneryıldız v. Turkey (application no. 48939/99), Grand Chamber, 30. November 2004.

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