CYIL vol. 8 (2017)

ADAM GIERTL CYIL 8 ȍ2017Ȏ Law Commission and as such it is the outcome of effort leading to the codification and progressive development of international law. It represents the common denominator of many sources aimed towards disaster relief. Though the claim that the Draft Articles reflects international customary law would be premature now. Much of the rules of disaster response is now reflected in the norms of non-binding character or quasi legal instruments like various guidelines, codes of conducts, etc. The few legally binding instruments are limited in ratione materiae (e.g. the Tampere Convention) or ratione loci (e.g. the ASEAN Convention). Yet the common principles are present in the rules of disaster response. Dominant and crucial are the humanitarian principles of impartiality, neutrality and non-discrimination. These set the standard that must be observed when facilitating disaster relief. Another feature dominant in the international disaster response law is that it is human rights centered. Its rules are firmly based on the rule requiring the respect of human dignity and human rights. This approach is cemented by the rule that some fundamental rights are non-derogable even in the event of public emergency that is crucial for the applicability of human rights law even in the most critical calamities. 42 This rule had been long established in international human rights law. From the fundamental human rights such as right to life and prohibition of inhumane and degrading treatment in connection with the right of every individual to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health stems the duty of the state to provide aid to disaster affected individuals when it is needed. Here we can observe that the “needs” and “rights” of victims of disasters are very close to each other. To sum up, states accepted obligations by adopting international instruments of protection of human rights, and the IDRL is now undergoing dynamic development with the prospect of becoming part of international customary law. A different issue is, what shall be the consequence of a breach of the IDRL norms by a state? As was shown above, the protection of victims of disasters is firmly based on international protection of human rights and this was confirmed by the ILC in its Draft Articles too. That means that the states are obliged towards individuals to ensure that their human dignity and human rights shall be protected even in calamitous events. When states fail to comply with their duties, the issue of their responsibility shall be resolved under the regime of international human rights protection. 43 42 See for example: Article 4 par. 1 and par. 2 of the International Covenant on Civil and Political Rights of 1966: 1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2) No derogation from Articles 6 ( right to life ), 7 ( prohibition of torture, inhumane and degrading treatment ), 8 (paragraphs 1 and 2 – prohibition of slavery and servitude ), 11 ( prohibition of imprisonment for non- fulfilling of obligations ), 15 ( nullum crimen sine lege ), 16 ( right to recognition everywhere as a person before the law ) and 18 ( right to freedom of thought, conscience and religion ) may be made under this provision. International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 19 December 1966, United Nations Treaty Series, no. 14668. Online: https://treaties.un.org/ doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf. 43 The same holds for some specific instruments such as the UN Convention on the Rights of Persons with Disabilities, which provides in Article 11 “States Parties shall take, in accordance with their obligations under

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