Attribution of conduct and liability issues arising from international disaster relief missions: theoretical and pragmatic approaches to guaranteeing accountability.

Author:Bartolini, Giulio
 
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ABSTRACT

This Article analyzes legal issues related to harmful activities of international disaster relief personnel, focusing on two distinct issues. On the one hand, the analysis centers on internationally wrongful acts carried out by relief personnel and uncertainties related to the attribution of conduct, due to the array of actors involved in such missions. Such an examination will be carried out through the lens of draft articles adopted by the International Law Commission on the responsibility of states and international organizations where some nonexhaustive references are made to such scenarios. On the other hand, the Article focuses on liability issues that may arise in relief operations, with a specific analysis on claims involving private third parties and solutions provided by disaster law documents in this area. However, this practice is far from being uniform and several shortcomings can be identified, thus increasing the need for relevant actors to properly address such issues avoiding the current shortsighted attitude.

TABLE OF CONTENTS I. INTRODUCTION II. INTERNATIONAL RESPONSIBILITY AND ISSUES OF ATTRIBUTION FOR INTERNATIONALLY WRONGFUL ACTS IN THE CASE OF INTERNATIONAL DISASTER RELIEF MISSIONS A. State Organs (Art. 4 ARS) and State Organs Placed at the Disposal of Another State (Art. 6 ARS) B. Individuals Empowered to Exercise Elements of the Governmental Authority (Art. 5 ARS) C. Agents of International Organizations and Organs of States Placed at the Disposal of an International Organization (Arts. 6-7 ARIO) D. Conduct of Private Persons III. Liability for activities related to INTERNATIONAL RELIEF MISSIONS IV. Conclusion I. INTRODUCTION

Whereas international disaster relief missions are undoubtedly capable of making a decisive contribution to improving response and recovery from a disaster, it cannot be ignored that the activities of international relief personnel can also have unintended negative impacts on the affected state or local population. In order to analyze main legal issues relevant in such scenarios, the broad notion of "accountability" as proposed by the ILA (1) could be helpful to highlight the multifaceted nature of legal problems related to relief missions. In particular, this term encompasses different issues, such as "tortious liability for injurious consequences arising out of acts or omissions not involving a breach of any rule of international and/or institutional law" and narrower aspects dealing with international responsibility, properly confined to "the legal relations which arise under international law by reason of an internationally wrongful act." (2)

These issues have not been specifically analyzed by the doctrine regarding relief missions and also tend to be under-evaluated by practice in this area, for even International Disaster Law (IDL) instruments seldom provide a comprehensive legal framework on these aspects. (3) However, it would be counterproductive to keep ignoring such topics, as difficulties in settling claims in this area could undermine the respect of the rule of law, and the confidence of the local population and the accountability of assisting actors in relation to disaster relief missions, with the latter being a basic assumption of contemporary humanitarian action. Furthermore, the potential relevance of these issues is far from being purely theoretical. According to a survey elaborated by the International Federation of Red Cross and Red Crescent Societies (IFRC) in 2007, 32 percent of international humanitarian organizations, including some UN agencies, have reported having had legal claims made against them in relation to different issues, such as vehicle accidents, negligence in the performance of their activities, employment, breach of contract, construction, and rental disputes. (4)

Consequently, this Article will evaluate the theoretical aspects and legal consequences related to harmful activities of international disaster relief personnel, focusing in particular on two distinct issues. In Part II, the analysis will center on potential internationally wrongful acts carried out by relief personnel and significant problems related to the attribution of conduct, due to the array of actors involved in such missions. Specific reference will be made to articles drawn up by the International Law Commission on the responsibility of States (ARS) and International organizations (ARIO) where some non-exhaustive references are made to such scenarios. Part III will conversely focus on the liability issues that may arise in disaster relief operations, with a specific analysis on claims involving private third parties. IDL instruments could play a positive role in settling this latter issue. In particular, the main approaches in this area could be identified through a series of predefined solutions on the allocation of liability among actors involved who are capable of reducing the legal pitfalls for injured parties. However, this practice is far from being uniform, and several shortcomings can still be identified.

Furthermore, in the common situation of a lack of binding IDL texts, disputes could arise in an unclear legal framework. In such cases, the potential impact of attribution criteria examined in Part II should be evaluated in order to identify the respondent government or international organization involved in such civil claims. As a result, the legal uncertainties characterizing this scenario can create additional legal problems for international disaster relief personnel, thus increasing the need for actors involved in relief missions to properly address such issues avoiding the current shortsighted attitude.

  1. INTERNATIONAL RESPONSIBILITY AND ISSUES OF ATTRIBUTION FOR INTERNATIONALLY WRONGFUL ACTS IN THE CASE OF INTERNATIONAL DISASTER RELIEF MISSIONS

    The possibility of internationally wrongful acts occurring as a result of the activities of international disaster relief personnel cannot be denied. (5) And in this regard, due to the array of actors involved in these international scenarios, theoretical issues related to attribution of such conduct are particularly complex. Furthermore, an analysis of the so-called subjective element of wrongful international acts appears primarily relevant as it represents the preliminary legal assessment to be carried out in this area. As maintained by Brigitte Stern, a logical sequence appears to exist between the two elements identified by the ILC as "it is first necessary to ensure that an act is attributable to the State before examining whether that act is in conformity with what is required from that State under international law." (6) As a result, specific attention will be paid to issues of attribution in relation to the responsibility of states and international organizations within the framework of international disaster relief missions, taking into account the different categories of personnel involved in such activities.

    1. State Organs (Art. 4 ARS) and State Organs Placed at the Disposal of Another State (Art. 6 ARS)

      The most common situation involves personnel of assisting states providing support to the affected state at its request. In this regard, a plain analysis of the ARS could apparently lead to the conclusion that so far these individuals could be qualified as organs of the sending state; their conduct is attributed to this latter state under Art. 4 ARS. In this case, the institutional links between a state and its organs would be of paramount relevance for the purposes of attribution. Functions performed by relief personnel belonging to the state apparatus can easily be included among those exemplified by Art. 4.1 ARS, as they essentially perform executive functions (i.e. "the most direct manifestation of state power.") (7) Furthermore these individuals are expected to have the status of state organs under their domestic legal order, thus fulfilling the criteria stated in Art. 4.2, according to which "an organ includes any person or entity which has that status in accordance with the internal law of the State."

      In the area of international disaster relief operations, however, attention should be paid to the possibility of recognizing a transfer of attribution between the sending state and the affected state. In particular, the characteristics of international relief operations demand the evaluation of an additional attribution criteria, provided for by Art. 6 ARS, which states, "The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed." The application of this provision, therefore, effectuates a transfer of attribution between the states concerned and its analysis is of paramount relevance for our purposes. In fact the ILC (according to a position already provided by Ago (8)) makes in its commentary an express reference to examples of "a section of the health service or some other unit placed under the orders of another country to assist in overcoming an epidemic or natural disaster" (9) as an eligible area for the application of Art. 6 ARS. However, neither the commentary nor the Special Rapporteurs provided additional references or mentioned practice in this area to support this position. Art. 6 ARS and its commentary nonetheless make it possible to highlight a set of key elements to be ascertained for the application of this criterion, even if a proper analysis is made difficult by both the scarce attention paid to it by the doctrine and the vague terms used by the ILC in this context.

      One basic requirement is the qualification of individuals concerned as organs of the sending states. (10) As emphasized above, Art. 4 is the source of reference in this area and excludes, as emphasized in the commentary on Art. 6 ARS, "the conduct of private entities or...

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