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CYIL 7 ȍ2016Ȏ
principles, i.e. the principles of humanity, neutrality and impartiality, as well as non-
discrimination (Art. 6) and the duty to cooperate (Art. 7).
Most draft articles address forms and modalities of cooperation in the response
to disasters (Art. 8), including external assistance. They also include the duty of States
to reduce the risk of disasters (Art. 9). The key provision is set in Article 10, according
to which the affected State has the duty to ensure the protection of persons and the
provision of disaster assistance on its territory, or in territory under its jurisdiction
or control. In the same vein, “to the extent that a disaster manifestly exceeds its
national response capacity, the affected State has the duty to seek assistance from,
as appropriate, other States, the United Nations, and other potential assisting
actors.”
6
According to the use of terms, “other assisting actor” means a competent
intergovernmental organization, or a relevant non-governmental organization or
entity, providing assistance to an affected State with its consent.
The provision of external assistance requires the consent of the affected State,
which may place conditions on its provision, in accordance with the present draft
articles, applicable rules of international law and the national law of the affected
State (Arts. 13 and 14). However, consent to external assistance shall not be withheld
arbitrarily. In the event of disasters, States, the United Nations, and other potential
assisting actors may offer assistance to the affected State (Art. 12, para. 1). On
balance, when external assistance is sought by an affected State, the addressee shall
expeditiously give due consideration to the request and inform the affected State of
its reply (Art. 12, para. 2).
Two other articles deal with the facilitation of external assistance and protection
of relief personnel, equipment and goods (Arts. 15 and 16). Termination of external
assistance requires appropriate notification and consultations (Art. 17). The last
draft article (Art. 18) is without prejudice clause, delimiting thus the relationship
to other applicable rules of international law. In particular, “the present draft articles
do not apply to the extent that the response to a disaster is governed by the rules of
international humanitarian law”. According to the commentary, in such situations,
the rules of international humanitarian law shall be applied as
lex specialis,
whereas
the rules contained in the present draft articles would continue to apply to the extent
that legal issues are not covered by the rules of IHL.
7
To sum up, the draft articles present a well-balanced result of the work of the
Commission on the topic with considerable importance given for practice. The ILC
decided, in accordance with article 23 of its Statute, to recommend to the General
Assembly the elaboration of a convention on the basis of the draft articles on the
protection of persons in the event of disasters.
8
6
Ibid
., p. 5.
7
See doc. A/CN.4/L.882/Add.1 (2016), pp. 58-59.
8
See doc. A/CN.4/L.882 (2016), p. 3, § 9.