The ILC’s Draft Articles on Protection of persons in the event of disasters Associate Professor Dr Michael Eburn ANU College of Law The Australian National University CANBERRA

The ILC Is established for ‘the promotion of the progressive development of international law and its codification’ (Statute of the ILC, cl 1). The draft articles represent both a codification of current law and proposals for ‘progressive development’. Governments have been invited to comment by 1 January 2016.

The ILC can Recommend the UN GA adopt its report – it allows the draft to become a source of ‘soft law’; or Recommend the UN GA ‘convoke a conference to conclude a convention’ – ‘hard law’.

International law Is probably well settled. Primary responsibility for response to disasters lies with the affected state. International assistance can’t be delivered except with the consent of and at the request of the affected state. Multitude of UN resolutions to that effect.

The IFRC Came to the conclusion that it’s domestic law that needs reform. States should ensure that they have the necessary legal regime in place to facilitate international emergency assistance. Issues of customs, visas, recognition of qualifications, use of vehicles, airspace, radio’s etc.

International law 1927 Convention and Statute Establishing an International Relief Union. 1984 Draft Convention on Expediting the Delivery of Emergency Assistance. This convention did not see the light of day.

What’s new in the draft articles A ‘duty to cooperate’ (Art 8). A ‘duty to reduce the risk of disasters’ (Art 11). A duty to ‘seek external assistance’ (Art 10). ‘Consent to external assistance shall not be withheld arbitrarily’ (Art 11(2)). A ‘right to offer assistance’ (Art 16).

A rights based, ‘person’ focused approach? Disaster survivors are rights holders, not victims waiting for international largesse. The focus is meant to be on the needs of the affected, not the interest of the state.

In a draft paper… It was argued that a treaty would provide ‘legal assurances that aid will be delivered in accordance with the principles of humanity’ and that a ‘treaty provision could work in practice to bring legal surety to the acceptance, facilitation and termination of international disaster relief, thereby helping to quash fears that the affected state is at risk of losing sovereign control or domestic political legitimacy in the face of international humanitarian assistance.’

But what are the problems IFRC desk study Initiation and termination; Goods and equipment; Personnel; Transport and movement; Operations (setting up a domestic office); Quality and accountability; Coordination.

Would the ILC articles help? I don’t think so. The issue isn’t (usually) states not asking for help Rather it’s states being overwhelmed – and not by other states but by civil society.

Who’s bound by international law? States – so affected states will have a duty to seek external assistance etc – but where will it come from? Other states and NGOs but NGOs are not the subjects of international law. A convention could be ‘single sided’.

Controlling the influx of international aid Requires strong domestic regulation. An EM agency that can direct aid providers. Established rules on quarantine, visas, recognition of qualifications etc. General international obligations won’t change that.

The articles will allow pressure States and NGO’s will be able to argue that a refusal is ‘arbitrary’ That a state is failing in its duties And they may do that for political motives.

But states that want to refuse aid Will still be able to do so – they’ll just have to put their answers in the language of the articles. Who is to decide and would any ‘resolution’ be timely enough for victims?

Without them States will still have allies and friends that they can turn to. The international community does respond.

My view International law, or lack of it is not the problem. Having such general provisions in a treaty won’t solve the issues. The issues are best dealt with by prearranged diplomatic relations.