CYIL vol. 8 (2017)

ADAM GIERTL CYIL 8 ȍ2017Ȏ v. Russia (2008) the failure of Russian authorities to adopt appropriate land-planning and other measures in the area where the foreseeable risk of a catastrophic mudslide existed, was declared to be a violation of Article 2 of the European Convention on Human Rights. 26 In Murillo Saldias and Others v. Spain (2006) the ECtHR assessed the situation when several people were killed in flooding after torrential rain. Spain was accused of not taking preventive measures to protect the victims. Although the application was declared inadmissible, the reason for inadmissibility was the fact that compensation had already been provided by the authorities, so the applicants could not claim the status of victims anymore. However, the material aspect of the claim and the fact that the remedy had been granted shows that responsibility of the state to individuals affected by the disaster against which preventive measures had not been taken is somehow recognized. 27 This responsibility however stems from the violation of human rights of a particular individual person. The acceptance of the force majeure concept in international customary law may preclude the wrongfulness of a particular act. 28 However, it holds that force majeure shall not be applied in situations when there is a causality between the conduct of state and force invoked as force majeure . In some instances, it would be complicated to establish causation between the act of a state and an act of god . It can be said, that the causation link between the lack of prevention and negative consequences of materialized hazard (i.e. disaster) is present. However, we observe several problems here. It was already shown here that the failure to properly react on disaster risk or disaster itself can result in responsibility of the state for the breach of human rights. Is it also possible for other states to claim that such failure is the cause of the harm they sustain, thus it constitutes a wrongful act under international customary law? Furthermore, in the context of global change of climate the causality of an act of state and force majeure in the form of a natural disaster (like a hurricane or rise of sea level) cannot be rejected outright, although the issue of attributability will certainly arise whenever any state would claim the existence of a wrongful act. 29 3.2 Duty to cooperate and duty of the affected state to seek assistance The duty of the state to cooperate with other states (in accordance with standing international law) emanates from the keystone and doctrinal sources of international law like the UN Charter or Declaration of Principles of International Law. 30 The intention of the ILC to reiterate the need for international cooperation in the face of the crisis seems 26 Budayeva and Others v. Russia (application nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Chamber Judgment, 20. March 2008. 27 Murillo Saldías and Others v. Spain (application no. 76973/01), Decision on admissibility, 28. November.2006. 28 Article 23, Articles on Responsibility of States for Internationally Wrongful Act provides: “ The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation .” 29 See: FARBER, Daniel, Climate Change and Disaster Law. In: CARLARNE, Cinnamon P., GRAY Kevin R., TARASOFSKY, Richard G. (eds.), The Oxford Handbook of International Climate Change Law , Oxford: Oxford University Press, 2016, p. 590. 30 See UN Charter, Article 1 par. 3. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations reiterated the duty of States to co-operate with one another in accordance with the Charter. The Declaration was adopted as resolution A/RES/25/2625.

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