CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ INTERNATIONAL RESPONSIBILITY IN THE CONTEXT OF DISASTER RESPONSE to be evident. 31 International cooperation is a traditional element of instruments related to disaster response. It was part of the Statute of IRU as well it is an inherent part of practically all recent instruments – either legally binding or non-binding. Basically, the principle of international cooperation in the face of a crisis is materialized in the bilateral and regional treaties on disaster response and aid provision. However, as the Draft Articles commentary stresses, pointing out the international cooperation does not relieve the affected state from its duty to bear primary responsibility for ensuring that the proper measures shall be adopted respecting human dignity and humanitarian principles. The wording of Article 7 of the Draft Articles as well as similar provisions in other instruments is important also from the other point of view. The duty of the state to cooperate as such is not limited to cooperation with other states. The international governmental organizations as well as non-governmental organizations and their capacities can be very useful in providing aid and relief to victims of disaster. The capacities and resources of the mentioned bodies can be utilized in assistance to affected communities, freeing the capabilities of the state that can be deployed elsewhere or supplementing them, making relief efforts more effective. However, the question is whether the state is under obligation to allow a foreign subject, be it the state or international organization to provide aid within its jurisdiction. History provides an example of a situation that developed in the state of Myanmar in 2008 when the cyclone Nargis struck the delta of Irrawaddy and caused an immense humanitarian catastrophe. The ruling régime in Myanmar however prevented international aid from being delivered in a timely manner to the affected communities in order to prevent foreign organizations and personnel from entering the territory of Myanmar. The debate that ensued reached the point where the use of Responsibility to Protect (R2P) 32 had been suggested by France in the UN Security Council. 33 While eventually no use had been found for R2P in the context of 31 The UN General Assembly Resolution A/RES/46/182 states: “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. “ 32 The concept of R2P was invoked for the first time during the conflict in Kosovo during 1999. The basic pillars of the doctrine were formulated during the World Summit in 2005. The 2005 World Summit Outcome was subsequently adopted by the UN General Assembly. The responsibility to protect (R2P) is based on a notion that “ Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means” The responsibility of the state goes hand in hand with the responsibility of the international community. It is further stated: “The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” See: 2005 World Summit Outcome, Resolution of the UN General Assembly, A/ RES/60/1 of 24 October 2005, par. 138 and 139. Available online: http://www.un.org/en/ga/search/view_doc. asp?symbol=A/RES/60/1. 33 Ultimately states did not reach an agreement on use of R2P in the cyclone Nargis disaster and as of today states have come to the conclusion that the R2P shall not be used to enforce the cooperation of state in the event of disaster. See: COSTAS TRASCASAS, Milena, Access to the Territory of a Disaster-Affected State. In: de GUTTRY, Andrea, GESTRI, Marco, VENTURINI, Gabriela (eds.), International Disaster Response Law , op. cit. n. 3, p. 233-239.

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