Protection of Persons in the Event of Disasters

Protection of Persons in the Event of Disasters

International Law Commission's Work on Protection of Persons in the Event of Disasters and Other Topics in 2013

United States views on international law [1] in relation to ILC's Work on Protection of Persons in the Event of Disasters and Other Topics: On November 4, 2013, Mark Simonoff, Minister Counselor for Legal Affairs at the U.S. Mission to the UN, delivered remarks on the work of the International Law Commission at its 63rd and 65th sessions. Mr. Simonoff addressed the work of the International Law Commission on several topics, including “Protection of Persons in the Event of Disaster,” “Identification of Customary International Law,” “Provisional Application of Treaties,” “Protection of the Environment in Relation to Armed Conflicts,” “The Obligation to Extradite or Prosecute,” and “Most-Favored-Nation Clause.” Mr. Simonoff's remarks are excerpted below and are available in full at (link resource) usun.state.gov/briefing/statements/216241.htm.

Some Aspects of ILC's Work on Protection of Persons in the Event of Disasters and Other Topics

We appreciate the Commission's continued work on Draft Article 12, addressing “Offers of Assistance,” and in particular the recognition in the commentary that offers of assistance are “essentially voluntary and should not be construed as recognition of the existence of a legal duty to assist.” We also value the commentary's affirmation that offers of assistance made in accordance with the present draft articles may not be discriminatory in nature, and that offers of assistance in accordance with the draft articles cannot be regarded as interference in the affected state's internal affairs.

Developments

We believe additional consideration is merited, however, of the distinction in this draft article between the relative prerogatives of assisting actors. Draft Article 12 provides that states, the United Nations, and other competent intergovernmental organizations have the “right” to offer assistance, whereas relevant non-governmental organizations “may” also offer assistance. The commentary suggests this different wording was used for reasons of emphasis, in order to stress that states, the United Nations, and intergovernmental organizations are not only entitled but encouraged to make offers of assistance, while non-governmental organizations have a different nature and legal status. We suggest eliminating the distinction and providing instead that states, the United Nations, intergovernmental organizations, and non-governmental organizations “may” offer assistance to the affected State, in accordance with international law and applicable domestic laws. While there is no doubt that states, the United Nations, and intergovernmental organizations have a different nature and legal status than that of nongovernmental organizations, that fact does not affect the capacity of non-governmental organizations to offer assistance to an affected state, in accordance with applicable law. The United States also believes that non-governmental organizations should be encouraged—like states, the United Nations, and competent intergovernmental organizations—to make offers of assistance to affected states, in accordance with applicable law.

Details

More generally, we remain concerned with an overall approach to the topic that appears to be based on legal “rights” and “obligations.” We would continue to emphasize our view that the Commission could best contribute in this area not by focusing on legal rights and duties, but by providing practical guidance to countries in need of, or providing, disaster relief.

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For example, although the United States greatly values individual and multilateral measures by states to reduce the risk of disasters, and we have implemented such measures domestically, we do not accept the assertion in Draft Article 16 that each state has an obligation under international law to take the necessary and appropriate measures to prevent, mitigate, and prepare for disasters. The voluminous information gathered by the Commission describing national and international efforts to reduce the risk of disasters is impressive and valuable, but we do not believe that such information establishes widespread state practice undertaken out of a sense of legal obligation; rather, national laws are adopted for national reasons and the relevant international instruments typically are not legally binding. As such, there is no basis to conclude that this is a rule of customary international law. To the extent this article reflects progressive development of the law, it ought to be identified as such in the commentary to this article. Moreover, we question the practical impact of such a rule considering that it would be up to each state to determine what risk reduction measures are necessary and appropriate. Finally, the draft article should be re-titled “Reduction of risk of disasters,” to align it with similar articles such as draft articles 14 (“Facilitation of external assistance”) and 15 (“Termination of external assistance”).

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We have similar concerns regarding Draft Article 14, though we commend the Commission and the rapporteur for their work on the draft article in other respects, including the emphasis it places on the importance of the affected state taking the necessary measures within its national law to facilitate the prompt and effective provision of external assistance regarding relief personnel, goods, and equipment—in particular, among other things, with respect to customs requirements, taxation and tariffs. Such steps can address a major and avoidable obstacle to effective assistance. Indeed, while we agree with the idea that it is generally beneficial for an affected state to take steps to exempt external disaster-related assistance goods and equipment from tariffs and taxes in order to reduce costs and prevent delay of goods, we would suggest eliminating the notion in the commentary that might encourage states as an alternative to lessen such tariffs and taxes. Along similar lines the draft article contains an illustrative list of measures for facilitating the prompt and effective provision of external assistance; without prejudice to our views about whether the article should be framed as being based on legal rights and obligations, we suggest adding to that list measures providing for the efficient and appropriate withdrawal and exit of relief personnel, goods and equipment upon termination of external assistance. States and other assisting actors may be more likely to offer assistance if they are confident that, when the job is done, their personnel, goods and equipment will be able to exit without unnecessary obstacles.

International Law Commission's Work on Protection of Persons in the Event of Disasters and Other Topics in 2013 (Continuation)

United States views on international law [1] in relation to ILC's Work on Protection of Persons in the Event of Disasters and Other Topics: Mr. Chairman, with respect to the topic “Identification of Customary International Law,” the United States extends our compliments to Sir Michael Wood for his excellent work on the topic in his first report as special rapporteur. Mr. Wood's initial Note on this topic set forth an excellent road map for how the Commission might tackle this issue and highlights that there are still many unsettled questions in this area that could benefit from the attention of states and the Commission.

More about ILC's Work on Protection of Persons in the Event of Disasters and Other Topics

Mr. Wood's report this year provides an important review of relevant authority in this area, in particular regarding relevant decisions from international courts and tribunals. This will serve as a valuable foundation as the work on the topic moves ahead. The report also highlights the difficulty of analyzing state practice due to the paucity of publicly available materials. We believe that state practice is a critical ingredient to the Commission's work in this area, and would hope to see it play a larger role as this topic progresses. To that end, as we have stated previously, we are reviewing United States practice with respect to the formation and development of customary international law with a view to providing materials that may be useful to the Commission, and we anticipate being able to respond by the requested deadline in January 2014.

Development

The report canvassed a diverse array of views on questions related to the formation and evidence of customary international law. Recognizing that the work is in its early stages and that covering all viewpoints provides an important foundation for the work to progress, we hope that, ultimately, such diversity will not obscure areas that should be clear, such as the importance of both state practice and opinio juris in the formation of customary international law.

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With respect to the inclusion of jus cogens, we agree with the special rapporteur that it is better not to deal with that issue as part of the current topic.

In general, we echo the observation in Mr. Wood's initial report that, as work on this topic proceeds, it is critically important that the results of the Commission's work not be overly prescriptive.

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Once again, we commend Mr. Wood for his work on this topic thus far, and welcome its further elaboration according to the plan established in his initial note.

Mr. Chairman, turning to the topic, “Provisional Application of Treaties,” the United States thanks Mr. Juan Manuel Gómez-Robledo for his first report.

Resources

Notes

  1. Ilc's Work on Protection of Persons in the Event of Disasters and Other Topics in the Digest of United States Practice in International Law

Resources

Notes

  1. Ilc's Work on Protection of Persons in the Event of Disasters and Other Topics in the Digest of United States Practice in International Law

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