The ILC Work on the Protection of Persons in the Event of Disasters

 Posted by: Valencia-Ospina Eduardo

In the aftermath of a disaster, affected States need to address its material consequences. For this purpose, aid is normally forthcoming from other States, international organizations and Non-Governmental Organizations. In practice, however, this foreign aid is not always accepted. And even if external assistance is agreed to, as the Federation of the Red Cross and Red Crescent Societies (IFRC) put it in 2000: ‘There is no definitive, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance.  No systematic attempt has been made to put together the disparate threads of existing law, to formalize customary law or to expand and develop the law in new ways.’

In this ‘yawning gap’, as the IFRC labeled it, stepped the International Law Commission (ILC or Commision) in 2006 when, in fulfillment of its Charter and Statute mandate and on the proposal of the United Nations (UN) Secretariat it included the topic ‘Protection of persons in the event of disasters’ in its program of work. According to the Secretariat ‘the objective of the proposal [was] the elaboration of a set of provisions which would serve as a legal framework for the conduct of international disaster relief activities; clarifying the core legal principles and concepts and thereby creating a legal “space” in which such disaster relief work could take place on a secure footing’.

Unlike other topics in the ILC’s agenda, the ‘Protection of persons in the event of disasters’ is a truly novel one, on which legally relevant practice is particularly scarce. Apart from a handful of multilateral, mainly regional, agreements and a much larger number of bilateral treaties, mostly on mutual assistance, the bulk of the available material is comprised of soft-law, non-binding instruments elaborated at the intergovernmental level and also by private institutions and entities (e.g. UN General Assembly Resolution 46/182, see here).

The Special Rapporteur has submitted between 2008 and 2013 six consecutive reports for the ILC’s consideration, with draft proposals on the basis of which it has been possible within the Commission to adopt 18 provisional draft Articles. The First Preliminary report in 2008 traced the evolution of the protection of persons in the event of disasters, identifying the sources of the law on the topic, as well as previous efforts towards the development and codification of the law in the area. It also presented in broad outline the various aspects of the general scope with a view to identifying the mail legal questions to be covered and advancing some conclusions. These included the Special Rapporteur’s belief that ‘to achieve complete coverage, work on the topic should extend to all three phases of a disaster situation (pre-disaster, disaster proper and post-disaster), but it would appear justified to give particular attention to aspects relating to prevention and mitigation of a disaster as well as to provision of assistance in its immediate wake.’

The Special Rapporteur singled out the three immediate legal sources of present-day international disaster protection and assistance: international humanitarian law, international human rights law and international law on refugees and internally displaced persons, to which he has systematically reverted in each of his subsequent reports.

The Second report in 2009 treated the scope of the topic ratione materiae, ratione personae and ratione temporis and issues relating to the definition of ‘disaster’ for purposes of the topic, and undertook a consideration of the basic duty to cooperate. The report contained proposals for 3 draft Articles which the ILC expanded to five.

The scope of the draft Articles (Article 1), the definition of disaster (Article 3) and the duty to cooperate (Article 5) are all-encompassing formulations. The scope covers the pre-disaster and disaster proper phases of a disaster situation, even though work on the first phase was deferred to a subsequent stage, it having been dealt with at this year’s session. The definition of disaster is not limited to natural disasters but extends to other kinds of disaster, in particular those attributable to human action. Article 4 makes clear that the draft Articles do not apply to situations to which the rules of international humanitarian law are applicable, in other words, to armed conflict. Article 5 establishes in general terms the duty to cooperate, which is central to the whole project. Article 5 has been supplemented by Articles 5 bis and 5 ter adopted, respectively, at the 2012 and 2013 sessions of the ILC, on the basis of proposals made in the Fifth and Sixth reports. Article 5 bis seeks to clarify the various forms which cooperation between affected States, assisting States and other assisting actors may take in the context of the protection of persons in the event of disasters. Article 5 ter extends the duty to cooperate to the pre-disaster phase.

The Second report devoted one of its four chapters to solidarity and cooperation. Seen in this light, the report traced the concepts to the UN Charter and the 1970 Friendly Relations Declaration and to instruments adopted in fields as diverse as the law of economic development, environmental law, human rights law and international humanitarian law. Nevertheless, within the Commission, doubts were expressed by some members whether solidarity is a principle of international law.

Cooperation should not be interpreted as diminishing the prerogatives of a sovereign State within the limits of international law. On the contrary, the principle underlines respect for the sovereignty of States and its corollary, non-intervention, and the primary role of State authorities in the initiation, organization, coordination and implementation of the measures aimed at the protection of persons in the event of disasters. Such protection will often involve the adoption of political, regulatory, administrative and judicial measures by the affected State, including the deployment of its armed forces within its own territory, which are expressions of the ‘right of every sovereign State to conduct its affairs without outside interference’, as the International Court of Justice put it in its 1986 judgment in the Case concerning Military and Paramilitary Activities in and against Nicaragua.

At the same time, as the Special Rapporteur emphasized in his Third report of 2010, ‘The correlating principles of sovereignty and non-intervention presuppose a given domestic sphere, or a domain réservé, over which a State may exercise its exclusive authority. This sovereign authority remains central to the concept of Statehood, but it is by no means absolute. When it comes to the life, health and bodily integrity of the individual person, areas of law such as international minimum standards, humanitarian law and human rights law demonstrate that principles such as sovereignty and non-intervention constitute a starting point for the analysis, not the conclusion.’

The Special Rapporteur has been consistent from the start in maintaining the inapplicability of the concept of ‘Responsibility to Protect’ to the work undertaken by the ILC on Protection of Persons in the Event of Disasters. Already in his Preliminary report he drew attention to the Secretariat’s observation, when proposing the inclusion of the topic in the ILC’s agenda, that the protection of persons might be ‘located within contemporary reflection on an emerging principle entailing the responsibility to protect’. However, the Special Rapporteur’s personal opinion, expressed also in his Preliminary report, was that the appropriateness of extending the concept of responsibility to protect and its relevance to the present topic required careful consideration. The Commission subsequently endorsed the Secretary-General’s stand according to which ‘the responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. To try to extend it to cover other calamities such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility’.

By virtue of the sovereignty of the affected State, it is the primary duty of its authorities to take care of the victims of a natural disaster and similar emergencies occurring in its territory. Cooperation complements that duty. The nature of the duty to cooperate may vary depending on the actor and the context in which assistance is being sought and offered. But as the Special Rapporteur concluded in his Fifth report in 2012 ‘The duty to cooperate in relief matters does not currently include a legal duty for States to provide assistance when requested by an affected State.’ The Special Rapporteur arrived at his conclusion after surveying international practice as evidenced in international treaties which shows that, although underpinned by the principles of solidarity and cooperation, the provision of assistance from one State to another upon the latter’s request is premised on the voluntary character of the action of the assisting State. That conclusion was confirmed by the overwhelming majority of States that submitted comments in the Sixth Committee in 2011 in response to the ILC’s inquiry.

The Third report examined the principles that inspire the protection of persons in the event of disasters, in its aspect related to persons in need of protection and the question of the responsibility of the affected State. The report contained proposals for three further draft Articles which led to the adoption by the ILC, at its 2011 session, of four additional draft Articles, together with commentaries, on Humanitarian Principles in Disaster Response (Article 6); human dignity (Article 7); Human Rights (Article 8); and the Role of the Affected State (Article 9). It must be pointed out that Article 7 enshrines for the first time as an autonomous provision in the body of what is intended to become an international instrument, the fundamental right to the respect and protection of the inherent dignity of the human person, until now only referred to in the preambles of such instruments.

Also at its 2011 session, the ILC adopted on the basis of proposals made in the Fourth report two more draft Articles with commentaries on the duty of the affected State to seek assistance (Article 10) and the consent of the affected State to external assistance (Article 11).

The Fourth report in 2011 had proposed a draft Article 12 on the right to offer assistance. And the Fifth report the following year, in addition to a draft Article A, renumbered 5 bis as already mentioned, proposed two other Articles dealing with the Conditions on the Provision of Assistance (Article 13) and the Termination of Assistance (Article 14).

On the basis of those proposals, the ILC in 2012 formulated provisions on Offers of Assistance (Article 12), Conditions on the Provision of External Assistance (Article 13), Facilitation of External Assistance (Article 14) and Termination of External Assistance (Article 15). Article 12 recognizes the right of different entities to make offers of assistance in the aftermath of a disaster. Article 13 expresses the right of affected States to place conditions on assistance. Article 14 embodies the obligation of the affected State to take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance and to ensure that its relevant legislation and regulations are readily available to assisting actors. Article 15 preserves the right of any actor to seek to terminate the assistance being provided in consultation with the other actors.

At its session this year, the ILC considered the Sixth report, devoted to prevention at the pre-disaster phase, in its concrete manifestation of Disaster Risk Reduction. On the basis of proposals made in the report the ILC adopted, apart from Article 5 ter, also Article 16 on the Duty to Reduce the Risk of Disasters.

As the ILC work is carried out pari pasu taking account of the views of States, draft Articles 1 to 16 and 5 bis and 5 ter have been brought to the attention of successive sessions of the General Assembly in the ILC’s customary annual reports. They were the subject of discussion by the delegations of Member States and Observers in the Sixth (Legal) Committee of the Assembly. As it was the case in the ILC, the Sixth Committee debate centered on the recurrent theme, already identified in the Preliminary report, of the underlying tension between the fundamental principles of sovereignty and non-intervention and the protection of persons. In this connection, special emphasis must be placed on the articulation between Articles 9 and 11, paragraph 1. Article 9 reflects in paragraph 1 the obligation of an affected State to protect persons and provide disaster relief in accordance with international law as stemming from its sovereignty. Paragraph 2 of Article 9 affirms the primary role held by an affected State in the response to a disaster upon its territory. The ILC preferred to use, instead of the term ‘responsibility’, the term ‘role’, borrowed from the Annex to General Assembly Resolution 46/182, in a provision which is furthermore in line with the ‘margin of appreciation’ principle adopted in the European Court of Human Rights, which holds that the ‘national authorities enjoy a wide margin of appreciation under Article 15 [of the European Convention on Human Rights] in assessing whether the life of their nation is threatened by a public emergency.’ Under paragraph 1 of Article 11 as already read ‘The provision of external assistance requires the consent of the affected State’.

It must be stressed that rather than an infringement, Articles 10, 11 and 12 as adopted constitute a reaffirmation of the fundamental international law principles of sovereignty and its corollary non-intervention, already explicitly enshrined in Article 9 on the role of the affected State. Those three provisions are founded on the unambiguous recognition that ‘the provision of external assistance requires the consent of the affected State.’ The right of non affected States is merely to ‘offer’ not to ‘provide’ assistance, and the affected State remains completely free to accept in whole or in part, subject or not to conditions it itself imposes, any offer of assistance from States and non-States actors, whether made unilaterally or in answer to an appeal by that affected State, when seeking assistance in situations in which a disaster exceeded its national response capacity. A duty to ‘seek’, unlike a duty to ‘request’ does not imply the existence of a consent given in advance. Moreover, the affected State retains the right to determine by itself alone whether a particular disaster is beyond its national response capacity or otherwise, in line with the principle of sovereignty, because it is in the best position to rationally and reasonably decide on its capabilities in responding to a disaster.

Despite the divergent view held by some delegations, it has been generally considered in the Sixth Committee that the provisions commented upon maintain the delicate equilibrium that the ILC has so successfully achieved in the elaboration of its Articles.

Shared responsibility and the draft EU-ECHR Accession Agreement: some observations regarding attribution and the intervening role of the Court of Justice

 Posted by: Ryngaert Cedric

In this blogpost I reflect, from a shared responsibility perspective, on two issues arising under the draft EU-ECHR Accession Agreement: (1) the question of to whom EU member states’ acts implementing EU law are attributed, and why; (2) the intervening role reserved for the Court of Justice of the EU (CJEU) in proceedings brought before the European Court of Human Rights (ECtHR). The relevant provisions in the draft Accession Agreement are Art. 1(3), respectively Art. 3(6).

 

1. Issues of attribution

The draft Accession Agreement makes it clear that the attribution of responsibility may be a function of the relevant primary norms of international law, and their scope (the ECHR norms in the case) rather than of secondary rules that are applicable across-the-board. Questions of shared/exclusive responsibility are then conceived of differently with respect to the ECHR than, say, the World Trade Organization (WTO). In the former case, acts of EU member states implementing EU law are attributed to the member state rather than to the EU, whereas in the latter, such acts are attributed to the EU, the member states being mere agents or organs.

The somewhat idiosyncratic way of addressing responsibility issues at the ECtHR can be explained by the fact that the EU has not been a Contracting Party to the ECHR. As a result, the issue has always been whether a given individual fell within the jurisdiction of a (EU member) state that was an ECHR Contracting Party, and thus whether the impugned acts could be attributed to that state. In a second stage, the Court then went on to inquire whether the member state could (partially) escape its responsibility by hiding behind EU law. This is the well-known approach taken in Bosphorus v. Ireland (2005).

This approach has also been incorporated in the Accession Agreement. Article 1(4) indeed attributes all acts that are allegedly contrary to the ECHR obligations and are not the acts, measure or omissions within the meaning of Article 1(3) for which the ECHR imposes obligations on the EU, to the member state. In essence, this means that all member states’ acts implementing EU law will normally be attributable to the member state itself. But as we know, Bosphorus allowed member states to get off the hook if they could convince the Court that the impugned EU acts were broadly speaking ECHR-compliant (equivalent protection principle). If they could not do so (in practice they always could), the member states would be held responsible. In no case could the EU be held responsible. The Accession Agreement now changes this approach somewhat, via the co-respondent mechanism (‘the EU can become co-respondent in a procedure directed against an EU member state, if the case calls into question the compatibility of a provision of Union law – both under TEU and TFEU secondary law – with the rights protected by the ECHR’). This mechanism enables the Court to eventually hold the EU responsible – possibly alongside the member state – although the act itself is not attributed to it (‘attribution of responsibility’). This is only fair, as a member state should not be solely held responsible when it does nothing more than implementing EU obligations (or in WTO terms: when it merely acts as the agent of the EU; in the WTO this has led to exclusive attribution to, and responsibility for the EU). Ultimately, allocating responsibility to an actor who cannot prevent or redress a wrongful act does not serve a purpose.

A question that may subsequently arise is whether the EU and the member state could incur joint responsibility under the new system. In itself, the Accession Agreement remains silent on how to precisely apportion responsibility between the EU and the member state. In my view, it is not inconceivable that the ECtHR might conclude to joint responsibility. This seems to follow from the application of the Bosphorus principle hitherto: a member state may ultimately be held responsible for failing to take measures to ensure that an international organization, to which the state has transferred competencies, adequately complies with human rights.

 

2. The intervening role of the Court of Justice of the European Union

A curious provision of the draft Accession Agreement, Art. 3(6), gives the CJEU a chance to express its opinion on the compatibility between Union (secondary) law and the ECHR, if it has not yet had the opportunity to do so. This allows the EU to exhaust its internal remedies so as to remedy a situation before the ECtHR steps in.

Art. 3(6) of the draft Accession Agreement appears to be particularly relevant in respect of failures of EU member state courts to request a CJEU preliminary ruling concerning an EU law question with human rights overtones (I elaborate on this in a forthcoming article in the European Law Review). The ECtHR has so far mainly dealt with EU member state courts’ decisions to refrain from requesting a preliminary ruling as cases arising under Article 6 ECHR: if such decisions are insufficiently reasoned and arbitrary, they may compromise the fair trial rights of the aggrieved individual. In the recent Michaud v. France (2012) case, however, which has set the stage for the aforementioned Art. 3(6), the ECtHR – rather than examining the reasons for the refusal – inquired whether the substantive legal issue at play in the proceedings was compatible with individual rights as protected by the ECHR. The Court notably reviewed whether the French implementation acts with respect to EU Directives on money laundering were compatible with the right to privacy (including professional secrecy) as laid down in Article 8 ECHR, without the CJEU having ruled on this matter.

This substantive approach to failures to request a preliminary ruling should at first sight follow the reasoning followed by the ECtHR: the French act of implementation suffices to bring the aggrieved individual within the jurisdiction of France (the first step in Bosphorus), while further ECtHR inquiry into the matter should be blocked on the ground that the EU provides equivalent rights protection (the second step in Bosphorus). However, what distinguished Michaud from Bosphorus, according to the Court, was that the CJEU had not yet examined the legal issue, neither in a preliminary ruling procedure concerning another case, nor in another procedure brought by a member state or an EU institution (para. 114). The ECtHR admitted that in principle, indeed, the CJEU provides equivalent rights protection, but that such protection does not mean much when the CJEU has not had the opportunity to actually examine the legal issue. When this is the case, the international mechanism which controls respect for human rights, ‘[n’]ait pu déployer l’intégralité de ses potentialités’, as a result of which the Bosphorus-based presumption of equivalent rights protection does not apply (para. 115).

This is certainly far-reaching, as the ECtHR is essentially taking the place of the CJEU in the preliminary ruling or other EU judicial procedure, thereby plugging the gaps in EU judicial protection and pre-empting the CJEU’s analysis of the subject matter. Still, it is of note that the ECtHR refrained from directly reviewing EU law, instead concentrating on the French law implementing EU law. This approach, aimed at respecting the autonomy of the EU legal order, was possible because the EU law relevant to the case consisted of EU Directives which are – unlike the EU Regulations at play in Bosphorus – only binding as to their result, and which thus leave the member state with some room for maneuvering.

As in Michaud the ECtHR focused on domestic law rather than EU law, thereby concentrating on the member state’s implementation freedom, its intrusive effect on EU law should not be overstated. Nevertheless, this circumvention strategy has its obvious limits, as it may not always be self-evident to determine what is implementation freedom and what is not. Michaud, at any rate, demonstrates that the ECtHR is not actively isolating member state discretion for review purposes (in the case it reviewed all relevant French law, regardless of its origin, in light of Article 8 ECHR). And when there is no implementation freedom, such as in case of an EU Regulation, the ECtHR would directly review the ECHR compatibility of an EU legal instrument.

The draft Accession Agreement makes such a review possible – a very logical consequence of the EU joining the ECHR – but at least Art. 3(6) allows the CJEU to act as a first reviewer of the human rights compatibility of (the interpretation of) an EU legal instrument if it has not intervened yet. This provision is an acknowledgment that the EU system of judicial protection may be not watertight, and that individuals may be forced to apply to the ECtHR because of EU institutional failures, or lack of readily available internal EU remedies. But at the same time, its very existence may put pressure on EU institutions and their member states to provide more systematically for proper internal EU remedies, thereby preventing awkward applications from reaching the ECtHR for lack of an EU remedial avenue.

International Law Commission and the topic ‘Protection of the Atmosphere’: Anything new on the table?

 Posted by: Plakokefalos Ilias

The International Law Commission (ILC), in its sixty-fifth session (2013) decided to include in its programme a topic entitled ‘Protection of the Atmosphere’ (see here para. 168). The ILC appointed as a Special Rapporteur Mr. Shinya Murase.

The inclusion of the topic is a very interesting development. It is the second topic pertaining to environmental law (the other being ‘Protection of the Environment in Relation to Armed Conflicts’) currently under consideration by the ILC. It is also a very difficult topic, given the number of conventions, both successful and unsuccessful ones, that have been so far concluded, the body of academic output on issues of atmospheric pollution and the strong political pull on the issue.

What makes the topic in the programme of the ILC even more interesting is the process of its adoption. In 2011 the current Special Rapporteur submitted his recommendations for the inclusion on of the topic in the programme of work (see here). In this document the Special Rapporteur presented a compelling case for the inclusion of the topic in the programme, and its subsequent codification and progressive development by the ILC.

Mr. Murase observed that there are a large number of instruments that address the problem of atmospheric pollution (e.g. the Convention on Long Range Transboundary Air Pollution and its Protocols, the UN Framework Convention on Climate Change and the Kyoto Protocol etc.). Nevertheless, these instruments are a ‘patchwork’ that comprises of different approaches that focus on geographically limited areas and regulate a limited number of substances or activities. He went on to note that the way forward would be a framework convention. The problem of atmospheric pollution, he noted, warrants by its nature a holistic approach. Mr. Murase pointed to Part XII of the Law of the Sea Convention as an example of such an approach. The work of the ILC would, according to the Special Rapporteur, fill in the gaps of existing treaty regimes, lead to the harmonisation with international treaties outside environmental law, as well as the harmonisation of national laws, rules and regulations with international standards. He also stated that the objective would be to combine the transboundary and global atmospheric problems while working on identifying the legal status of the atmosphere along the lines of the concepts of common heritage, common property, common concern or common natural resources.

Admittedly the Special Rapporteur presented a well rounded, finely argued and forward looking plan for the work that would lie ahead if the topic were accepted by the ILC.

On 9 August 2013, the ILC did in fact include the topic in its programme of work. Between the proposal of the topic by Mr. Murase and its inclusion in the programme there was an intermediate step. Mr. Murase, following informal consultations with a group of ILC members under the direction of the President, presented a new approach (see here at pp. 9-10). According to the new approach the ILC would not interfere with political negotiations and would not seek to fill gaps in the treaty regimes. It would not discuss climate change, the protection of the ozone layer or long-range transboundary pollution. Furthermore, it would not discuss the precautionary principle, the polluter-pays principle, the principle of common but differentiated responsibilities or the transfer of funds and technology from developed to developing states. The ILC would not deal with the regulation of specific substances either. According to the ILC, the outcome would be ‘Draft Guidelines’ that would not seek to impose on treaty regimes legal rules or principles that are not already contained therein.

The contrast between Mr. Murase’s proposal and the result endorsed by the ILC is indeed stark. While the Special Rapporteur had proposed a complete treatment of the topic from all possible angles, the ILC returned with an extremely limited mandate. While it is tempting to get to the political rationale behind this turn, what is important is to see if there is any merit to the adopted approach. If the ILC accepts the premise that the current treaty regimes are not adequate for the protection of the atmosphere because they are indeed a patchwork of uncoordinated approaches on the topic, then it is hard to see how the Draft Guidelines would be of any practical value. Moreover, all possibly ‘difficult’ issues lie outside the mandate of the Special Rapporteur. What remains within the mandate is a matter of speculation. Possibly a definition of the atmosphere, a definition of its legal status, a proposal on coordination and further cooperation among states as well as a reminder – in soft law terms – of the obligations states have already undertook as a matter of treaty or customary law; admittedly not much.

The ILC watered down significantly the initial proposal, offering a mandate to the Special Rapporteur that provides for very little room to produce a meaningful result. If the ILC wanted to avoid any discussion that would touch upon the substance of the problem of atmospheric pollution, it could have adopted an alternative approach. An argument could be made that the existing treaty regimes are adequate, that they are – reasonably – successful and that continued efforts for better coordination do indeed take place (e.g. the synergies process of the Rotterdam, Stockholm and Basel Conventions. Moreover, if the states have not been able to agree on how to address fundamental problems of atmospheric pollution (including climate change), it would be hard to see how the ILC would achieve better results.

This view, however, would mean that there would be no reason to discuss the topic at all. On the other hand, the original proposal of Mr. Murase would open a number of very interesting discussions within the ILC and possibly offer something new on the table.

Either approach (i.e. non inclusion or keeping the original proposal) would be far more plausible than the one adopted. Non-inclusion would not create any expectations and it would not bring forth another soft law instrument on international environmental law, something hardly necessary. Alternatively, the original proposal could lead to a renewed interest in the topic in a meaningful way.

In any case, it is interesting to see how the Special Rapporteur will manoeuvre around his strict mandate so as to produce a meaningful set of guidelines on a topic that touches upon a problem shared by all states.