CYIL vol. 8 (2017)

ADAM GIERTL CYIL 8 ȍ2017Ȏ disaster response, the incentive of debate is quite clear. If the state is unable to facilitate relief by the means at its disposal, it may be held responsible when it is unwilling or unable to cooperate with other subjects involved and by so doing ensure that the aid would be delivered to those in need. 34 While respect for the sovereignty and non-intervention into the internal affairs of the state must be upheld, thus the state retains control over the facilitation of the relief, its coordination and decision making. 35 Article 11 of the Draft Articles provides: “ 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.” The wording of Article 11 indicates that the obligation to turn to the other members of the international community ought to be the ultima ratio . It would require a case to case assessment to state whether the magnitude of a disaster had reached such levels that manifestly exceeded the response capacity of the affected state. 36 The commentary of the Draft Articles states that excess of national response capacity must not be understood in absolute terms. If a state is not able to perform a certain type of activity related to relief facilitation, this does not automatically imply that the state is incapable of operations in other areas. The threshold set does not preclude a state from seeking external assistance before the requirement formulated by the ILC is met – simply said, a state must not wait until the last possible moment to seek external assistance. The formulation of Article 11 is vague and broad. The lack of more precise wording can be attributed to the issue analysed in this paper – the issue of responsibility. While the IDRL is based on compliance with core principles of international law like sovereign equality and non- intervention principles, thus recognizing the priority of state as the subject of international law. The IDRL encompasses the rules that by their very nature impose duties upon the states that are international in respect to their origin, but has to be performed within the state as part of internal affairs. The interpretation of the above mentioned duty to seek assistance is however clear. A state should seek assistance and this implies that the consent of the state is conditio sine qua non for operations of foreign subjects within the state’s territory. 37 It seems that the core idea behind the R2P concept – that sovereignty comes with responsibility – is present in the core of the IDRL rules as well. It remains however unclear how the international community would enforce the compliance of the state with the duty to cooperate and seek external assistance. It is indeed obvious that such duties are formulated as “positive” and designed to provide a framework for the facilitation of assistance to the affected state. The lesson learned in Myanmar serves as a reminder that the combination of a large scale disaster striking a state that is governed by an authoritarian régime that is reluctant to cooperate with the international community or UN, 34 Ibid., p. 228-232. 35 As the Commentary of Article 10 of the Draft Articles in paragraph 3 stipulates: “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.” 36 The United Nations General Assembly stated in Resolution 46/182: “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.” 37 Guidelines on The Use of Foreign Military and Civil Defence Assets in Disaster Relief (the Oslo Guidelines) of 2006, as revised on 1 November 2007 stipulates: “If 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.”

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