1. International Disaster Law- an issue of Sovereign or Human Rights?
Associate Professor Dr Michael Eburn
ANU College of Law
The Australian National University
CANBERRA

2. International Disaster Law

3. International Disaster Law
Disaster Risk Reduction (DRR)
International Disaster Response Law (IDRL)

4. International Disaster Law
Disaster Risk Reduction (DRR)
Sendai Declaration
International Disaster Response Law (IDRL)
IFRC Guidelines
ILC Draft Articles

5. The driving principle is
State Sovereignty.
 UNGA Resolution 46/182 on Strengthening of the coordination of humanitarian emergency assistance of the United Nations
“The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations.”

6. The International Law Commission
‘… reaffirms the primary role of the affected State in the provision of disaster relief assistance, which is a core element of the draft articles. The reference to sovereignty, and the primary role of the affected State, provides the background against which the entire set of draft articles is to be understood.’
(Draft Articles on the Protection of Persons in the Event of Disasters, Commentary, Preamble [6] (2016)).

7. Needs v Rights
‘The [International Law] Commission was aware of the debate in the humanitarian assistance community on whether a “rights based” approach as opposed to the more traditional “needs-based” approach was to be preferred, or vice versa.’ (Draft Articles on the Protection of Persons in the Event of Disasters, Commentary Art 2 [1] (2016)).

8. Needs v Rights
Needs based - those affected are ‘victims’ who need to be rescued.
Rights based - those affected have rights to be involved in decision making and to demand assistance. May be able to turn to courts and other human rights enforcement mechanisms.

9. The Sendai Framework for DRR
“Disaster risk reduction requires … empowerment and inclusive, accessible and non discriminatory participation… A gender, age, disability and cultural perspective should be integrated in all policies and practices, and women and youth leadership should be promoted” [19(d)].

10. International Law Commission
Greater concern with rights and concomitant duties.
Proposes that governments have duties to
Cooperate (art 7);
Ensure the protection of persons and the provision of disaster relief assistance (art 10);
To seek assistance where a disaster exceeds national capability (art 11);
Not to arbitrarily withhold consent for the delivery of assistnace (art 13(2)).

11. Status UNGA Resolution 46/182 binds the UN. Sendai is ‘soft law’.
ILC recommends a treaty but will it succeed?
Draft 1984 treaty was not accepted.
UNGA removed reference to disasters when adopting the doctrine of the ‘Responsibility to Protect’.

12. Countries
Appear unwilling to accept universal binding obligations with respect to DRR and disaster relief.
Room for regional cooperation –
ASEAN.
EU.

13. In the other room…
… Research is supposedly ‘taken up’ by governments and relevant institutions and used to inform policy. We need to rethink these comforting assumptions…

14. Conclusion
The international community is concerned with DRR and response.
But international law remains weak – focused on ensuring the rights of states to make their own decision and avoiding commitments on other states to assist.