Dr Michael Eburn ANU College of Law 2 December 2015. Disaster Law Seminar Dr Michael Eburn ANU College of Law 2 December 2015.

ILC Draft Articles on Protection of Persons in the Event of Disasters Intended to ‘facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with full respect for their rights’ (Article 2).

What’s the problem? IFRC’s ‘Law and legal issues in international disaster response: a desk study’ (2007). They developed ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’. Identified problems with: Initiation and termination Goods and equipment Personnel Transport and movement Operations Quality and accountability Coordination Involvement of militaries and mixed situations of disaster and conflict

International law Responsibility for management of disaster response is vested with the government of the affected state (UN Resolution 46/182). Other states can only provide assistance with the consent of the affected states. Do states really refuse assistance? Or is the bigger problem managing assistance from non-state actors?

The ILC articles are more than a codification Art 8: Duty to cooperate; Article 11: Duty to reduce the risk of disasters; Article 13: Duty of the affected State to seek external assistance. One of the functions of the ILC is to suggest “progressive development of international law” which means “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States.” Some of the ILC articles are a codification but some represent a step forward or development of the law. The commentary suggests that this is not new “The duty to cooperate is well established as a principle of international law and can be found in numerous international instruments” but if this is just a reflection of that duty it adds nothing. It if adds something it is the ‘duty to cooperate’ with respect to disaster relief and to cooperate with ‘competent intergovernmental organizations’ the Red Cross/Red Crescent movement and ‘relevant non-governmental organizations’. With respect to the duty to reduce the risk of disasters the commentary says ‘An important legal foundation for draft article 11 [16] is the widespread practice of States reflecting their commitment to reduce the risk of disasters…’ but that decision to enter agrements or sign up to non-binding declarations such as the Sendai Declaration suggests such a duty is not a existing part of international law. As for the duty to seek assistance, this “was supported by a majority of the members of the Commission, but opposed by others, since in the view of those members, international law as it currently stands does not recognize such a duty…”

The obligations are vague “… States shall, as appropriate, cooperate among themselves …” “Each State shall reduce the risk of disasters by taking the necessary and appropriate measures…” If “… a disaster exceeds its national response capacity, the affected State has the duty to seek assistance … as appropriate.” “Consent to external assistance shall not be withheld arbitrarily.” Even if they are statements of legally binding obligations, they are so vague as to be of little value. With respect to Art 11 the commentary says ‘While each State bears the same obligation, the question of different levels of capacity among States to implement the obligation is dealt with under the phrase “by taking the necessary and appropriate measures”.” And what is the implication if disaster strikes? Commentary on Art 14 says: “… the Commission considers that withholding consent to external assistance is not arbitrary where a State is capable of providing, and willing to provide, an adequate and effective response to a disaster on the basis of its own resources. Second, withholding consent to assistance from one external source is not arbitrary if an affected State has accepted appropriate and sufficient assistance from elsewhere. Third, the withholding of consent is not arbitrary if the relevant offer is not extended in accordance with the present draft articles. In particular, draft article 7 [6] establishes that humanitarian assistance must take place in accordance with principles of humanity, neutrality and impartiality, and on the basis of non-discrimination…” But who’s to decide?

And what if they don’t? What’s the remedy? No-one’s planning to go to the ICJ. It may be a tool for diplomacy. Is the solution: International law? Domestic law? or Pre-existing, pre drilled relationships?

Relying on Law “no plan survives contact with the enemy” Can lead to a focus on compliance and an expectation that everyone will follow the law or the plan. People don’t and neither do disasters.

NGOs are not the subjects of international law NGOs arise out of necessity Tas Fires Can we Help Blaze Aid Christchurch Student Army NGO response wont be affected by the Draft Articles.

Inter-government Relationships US/Canada/Australia/NZ cooperative fire fighting. FRANZ agreement PIEMA - Pacific Islands Emergency Management Alliance ASEAN Agreement on Disaster Management and Emergency Response

For others Well drilled, comprehensive domestic laws Identify: Point of contact for international assistance How assistance will be requested and received Legal procedures in place to grant status How to maintain flexibility to deal with the realities of each situation.

What’s to happen with the draft articles? They become a non-binding UN resolution or A treaty. There has been no indication that the international community wants a treaty or wants to enter legally binding agreements to accept or offer aid.

Conclusion The Draft articles add little. May be a useful ‘one stop shop’ but Will do little to enhance international disaster response. Pre-planning, cooperation and domestic arrangements will be a more significant contributor to the “Protection of Persons in the Event of Disasters”.