CYIL vol. 8 (2017)

ADAM GIERTL CYIL 8 ȍ2017Ȏ under their own name (like the UNHCR or UNICEF that belong in the structure of the UN). In this case, however, the responsibility for conduct of those bodies shall be imputable to their respective international organization. Last but not least are non-governmental organizations and individuals acting in a capacity different from subjects of public law. All those subjects are entering into a complex scheme of mutual legal relationships. The nature of those relationships defines the legal responsibility for misconduct or failure to conduct accordingly. Any contemplating of responsibility during providing disaster relief must not avoid the affected state. Its role is rather specific due to the fact that it acts in both positions as the stakeholder and as the subject responsible for provision of aid to its own affected population, thus bearing responsibility towards individuals who have legitimate expectations. Due to the complexity of relations between the involved subjects, it is complicated to set one standard of responsibility. Indeed, the question of the necessity of such a step is a legitimate one. Standing international law contains the rules of responsibility for both states and international organizations. When facilitating disaster relief the UN often employs a so-called “cluster system”, where it simply lets its agencies and operatives in the field carry out operations in order to facilitate relief in concert with the various NGOs involved, while providing guidance and necessary coordination. In such a situation, the rules of customary law reflected in the so-called Draft Articles on Responsibility of International Organizations for Internationally Wrongful Acts would be applicable in a situation when the UN is in command. The ILC stresses in its Draft Articles the primary responsibility of the state for the direction, control, coordination and supervision of relief (Article 10). This emphasis of the role of the affected state is natural from the point of view of law (sovereignty of the affected state) as well as from the point of view of practical needs (the affected state has the best information about the scale and magnitude of the disaster and about the specifics of the affected area and population). It is clear that if foreign actors (regardless their nature) are to be involved in disaster relief, it has to happen with the consent of the state and the subjects providing relief would have to carry out operations in concert with the authorities of the affected state respecting its jurisdiction. The sovereignty of the affected state is not detachable from its responsibility and the affected state must be fully aware that the way it exercises its responsibility may cause its responsibility towards the stakeholders. 40 The foreign actors providing relief bear their part of responsibility either towards the affected states on the territory of which they operate and towards the individual stakeholders who are beneficiaries of relief. For evaluation of responsibility of individual actors, effective control shall be assessed in the first place. The subject of international law that is in charge of a particular person or organization in a particular situation shall be responsible for its wrongful conduct. When speaking about the stakeholders it is clear that the state on the territory of which they find themselves in the event of disaster has the primary responsibility. The emphasis on 40 Judge Alvarez in his Declaration in the Corfu Channel Case stated: “By sovereignty, we understand the whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States” … “ Sovereignty confers rights upon States and imposes obligations on them.” Corfu Channel case, Judgment of April 9th, 1949: ICJ Reports 1949, Individual Opinion by Judge Alvarez, p. 39, at p. 43. Cited in: Draft articles on the protection of persons in the event of disasters, with commentaries, par. 4 of Commentary of Article 10.

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