An Enchanted Tool?: Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters

Abstract

Despite previous attempts at codification of international law regarding international responses to natural and human-made disasters, there is currently no binding international legal framework to regulate the provision of humanitarian assistance outside armed conflicts. Nevertheless, since 2006 the International Law Commission (ILC) has provisionally adopted eleven draft articles on the protection of persons in the event of disasters which have the potential to create binding obligations on states and humanitarian actors in disaster settings. However, the final form of the draft articles has not been agreed. The Codification Division of the UN Office of Legal Affairs has proposed a framework convention format, which has seen support in the ILC and the UN General Assembly Sixth Committee. The overall aim of this article is to provide an analysis of the potential forms of international regulation open to the ILC and states in the context of humanitarian responses to disasters. However to avoid enchanting the ILC draft articles with unwarranted power, any examination of form requires an understanding of the substantive subject matter of the planned international regulation. This article therefore provides an overview of the international legal regulation of humanitarian assistance following natural and human-made disasters, and the ILC’s work to date on the topic. It then examines two key issues that remain to be addressed by the ILC and representatives of states in the UN General Assembly Sixth Committee. By drawing on the UN Guiding Principles on Internal Displacement, the development and implications of binding and non-binding international texts are examined, followed by an analysis of the suggested framework convention approach identified by the Special Rapporteur as a potential outcome of the ILC work. The paper argues that while the Guiding Principles on Internal Displacement succeeded as a non-binding document, the multitude of existing non-binding texts relevant to humanitarian responses need to be condensed and formalised. The ILC work on the protection of persons in the event of disasters provides an opportunity for this to occur, and for the development of an international consensus on both the form and content of a binding text. Yet a new international law instrument will not act as a panacea for the millions of victims of natural and human-made disasters each year. More to the point, the evidence base for analysing whether or not a universal multilateral convention is the most effective means of promoting the protection of persons in the event of disasters is not available. Therefore, one must currently proceed on the assumption that facilitating states and humanitarian actors working together from an agreed understanding of the rights and responsibilities required in disaster settings will lead to improved humanitarian outcomes for the victims of a disaster. This in turn implies the need for an interconnection and synthesis of national, regional and international legal frameworks.