CYIL 2014

457

THE INTERNATIONAL LAW COMMISSION AT THE MIDǧPOINT OF ITS QUINQUENNIUM

Most draft articles address forms and modalities of cooperation, including

external assistance, in case of disasters. They include duty of States and cooperation

to reduce the risk of disasters (Arts. 10 and 11). The key provision is set in Article 12,

according to which the affected State, by virtue of its sovereignty, has the duty to

ensure the protection of persons and provision of disaster relief and assistance on its

territory. In the same vein, “to the extent that a disaster exceeds its national response

capacity, the affected State has the duty to seek assistance from among other States,

the United Nations, other competent intergovernmental organizations and relevant

non-governmental organizations, as appropriate.”

On balance, 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. 14 and 15). States, the United Nations, and other competent

intergovernmental organizations have the right to offer assistance. Relevant NGOs

may also offer assistance to the affected State (Art. 16). Two other articles deal with

the facilitation of external assistance and protection of relief personnel, equipment

and goods (Arts. 17 and 18). Termination of external assistance requires appropriate

notification and consultations (Art. 19).

The last two draft articles (Arts. 20 and 21) are final and without prejudice

clauses, delimiting thus the relationship to special and other rules of international

law. In particular, the present draft articles do not apply to situations to which the

rules of international humanitarian law are applicable. It is clear that draft articles

on protection of persons in the event of disasters apply to different situations than

the rules of IHL and the concept of the Responsibility to protect (R2P). Although

the Commission considered an express exclusion of the applicability of the draft

articles to situations of armed conflict, this approach could be counterproductive.

As explained in the commentary, a blank exclusion of the applicability of the draft

articles because of the existence of an armed conflict would be detrimental to the

protection of the persons affected by the disaster, especially when the onset of the

disaster pre-dated the armed conflict.

To sum up, the draft articles present a well-balanced result of the work of the

Commission on the topic with a considerable importance for practice. Of course,

States and other stakeholders will have a say before the second reading. The ILC

decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft

articles to Governments, competent international organizations, the International

Committee of the Red Cross and the International Federation of Red Cross and Red

Crescent Societies for comments and observations to be submitted to the Secretary-

General by 1 January 2016.

Ibid., p. 6.

See doc. A/CN.4/838/Add.1 (2014), p. 50.

See doc. A/CN.4/L.835 (2014), p. 1, § 3.