IN DEFENSE OF CONCURRENT APPLICATION: THE ILC DRAFT ARTICLES ON THE PROTECTION OF PERSONS IN THE EVENT OF DISASTERS AND INTERNATIONAL HUMANITARIAN LAW.

• Author: Perez, Aldo
• Position: International Law Commission

1. INTRODUCTION

   Although the causes of peacetime disasters and armed conflicts vary considerably, the effects of these phenomena are quite similar: large numbers of people are injured and need immediate medical assistance, they are displaced from their homes and left in need of shelter, they are unable to obtain food or water, and infrastructure and the natural environment are destroyed. (1) These effects often place human beings in need of international humanitarian assistance. (2) Despite the similarity in effects, the legal regime governing international humanitarian assistance has evolved in a divided manner between rules that apply to armed conflicts and those applicable to peacetime disasters. (3) On the one hand, international humanitarian law (IHL) governs actors and activities during armed conflicts and contains a number of rules regarding the provision of humanitarian assistance to civilian populations. (4) On the other hand, international disaster law (IDL) governs humanitarian assistance operations during "disasters," a term defined in various ways. (5) International human rights law (IHRL) applies at all times, save for those specified in the derogation provisions found in the treaties that make up this body of law. (6)

   Disasters can be caused by natural hazards, human hazards, or combinations of these two. (7) Although, historically, the applicability of IDL instruments depended on the causes of disasters, most modern IDL instruments make their applicability dependent on the effects of natural and/or human-made hazards. (8) Despite this focus on effects and the great similarity of effects between peacetime disasters and those of armed conflicts, many instruments, organizations, and scholars of IDL exclude situations of armed conflict from their definition of disasters. (9) The basis for this is often an argument that IHL contains sufficiently comprehensive provisions, justifying the circumscription of IDL to peacetime disasters. (10) Many stress the differences between armed conflicts and peacetime disasters without addressing the equally large number of similarities between the two phenomena." Others suggest that the concurrent application of IDL and IHL risks creating overlaps and conflicts in international humanitarian operations. (12) States, moreover, are often reluctant to include armed conflicts within the scope of many legal instruments due to a fear of external interference in internal affairs. (13) Due to one or more of these reasons, most IDL instruments distinguish between peacetime disasters and armed conflicts and apply only to the former. (14) This has serious implications for the civilian population of areas ravaged by armed conflict and areas in which an armed conflict and a peacetime disaster take place simultaneously, often called "complex emergencies." (15)

   In 2016, the International Law Commission (ILC or the Commission) adopted a different approach in its Draft Articles on the Protection of Persons in the Event of Disasters (Draft Articles). (16) Paragraph 2 of Draft Article 18 establishes the relationship between the Draft Articles and IHL. It provides that the Draft Articles "do not apply to the extent that the response to a disaster is governed by the rules of international humanitarian law." (17) The ILC's commentary to this provision then provides that in certain situations, "the rules of international humanitarian law shall be applied as lex specialis, whereas the rules contained in the . . . draft articles would continue to apply 'to the extent' that legal issues raised by a disaster are not covered by the rules of international humanitarian law." (18) Thus, in some circumstances, the ILC's Draft Articles would create a regime of concurrent application between IDL and IHL, much in the same way as IHRL is concurrently applicable to IHL during armed conflict. (19) The wisdom of this arrangement and precisely in what situations this regime is to govern are the central inquiries of this Article.

   Section II of this Article contends that armed conflicts are human-made hazards that can lead to disasters--much in the same way as nuclear power plants are hazards with the potential to cause disasters. Accordingly, IDL should apply not only to peacetime disasters, but also to disasters caused by armed conflict and to complex emergencies. Section III provides a brief introduction to IDL, which serves as context for the subsequent discussion of the ILC Draft Articles in Section IV. Section V explores Draft Article 18 and its commentary and argues that the Draft Articles should apply both in disasters caused by armed conflict and in complex emergencies. Additionally, it maintains that the broader relationship between IDL and IHL in these two situations should be as adopted in Draft Article 18, namely, that IDL does "not apply to the extent that the response to a disaster is governed by the rules of international humanitarian law." (20) However, this should be interpreted to mean that, in both disasters caused by armed conflict and in complex emergencies, the two bodies of law apply concurrently, but IHL norms (as lex specialis) take precedence over IDL norms in the event of conflict between the two. The subsequent subsections provide support for this interpretation by arguing that this regime provides the most robust protection to victims of disasters, whatever their cause, for at least two reasons: First, the concurrent application of the Draft Articles and IHL does not present a grave danger of normative conflict in international humanitarian operations. Second, IHL contains a number of gaps that the Draft Articles would fill, significantly enhancing the protection of victims of disasters caused by armed conflicts and complex emergencies. Finally, Section VI summarizes and concludes.

2. ARMED CONFLICTS AS HUMAN-MADE HAZARDS THAT MAY LEAD TO DISASTERS

   Proposing that disasters caused by armed conflict should be included within the scope of IDL requires placing the terms "disaster" and "armed conflict" in context and explaining their relationship to one another. Preliminarily, it is worth remembering that society's conceptual understanding of a disaster has undergone a series of fundamental transformations over time. Disasters were once understood as "acts of God" and therefore beyond the realm of human agency to prevent. (21) With the secularization of Western society, particularly with the advent of Enlightenment philosophy, this way of thinking about disasters evolved. (22) Societies started thinking about disasters caused by natural hazards as "acts of nature." (23) In recent years, however, even these "natural disasters" have come to be understood as arising from human choices and activities, in particular, a society's vulnerability to hazards. (24) Today, most disaster researchers recognize that no disaster is truly just "natural." (25)

   To properly understand this proposition, four key terms must be explored: hazard, risk, vulnerability, and response capacity. A hazard is "[a] potentially damaging physical event, phenomenon or human activity that may cause the loss of life or injury, property damage, social and economic disruption or environmental degradation." (26) Natural hazards include droughts, floods, hurricanes/typhoons, earthquakes, tsunamis, volcanic eruptions, and epidemics. (27) Human-made hazards include nuclear meltdowns, air pollution, groundwater contamination, oil/chemical spills, dam failures, (28) and, as this Article contends, armed conflicts.

   In turn, risk, vulnerability, and response capacity determine whether a mere hazard becomes a disaster. (29) Risk is a function of the likelihood of a hazard occurring and the consequences of that hazard. (30) Vulnerability is a factor that influences the magnitude of the consequences of a realized hazard. (31) Stated differently, vulnerability refers to "conditions determined by physical, social, economic and environmental factors or processes, which increase the susceptibility of a community to the impact of hazards." (32) Accordingly, if vulnerability is reduced, then the consequences of a hazard will be reduced. Modes of reducing vulnerability include mitigation and preparedness measures. (33) Disaster experts regularly calculate the likelihood and consequences of specific hazards. (34) This allows them to compare and prioritize particular hazard risks and determine on which mitigation and preparedness measures a society should focus its limited resources. (35)

   The last piece of the puzzle to accurately understand a disaster is response capacity. The response capacity of a community or state refers to that entity's ability to limit injuries, loss of life, and damage to property or the environment during and after a hazard event. (36) Response activities include search and rescue, first aid, medical attention, and the provision of food, water, and shelter. (37)

   In sum, a disaster occurs when a hazard risk is realized, and the realized hazard overwhelms the response capacity of a community or state. (38) Thus, a disaster is neither natural nor human-made; the hazard that can lead to the disaster is natural or human-made. Due to decisions affecting vulnerability and response capacity, all disasters, whether caused by natural or human-made hazards, are inextricably dependent on human choices and actions. (39) For example, while the passage of a hurricane over one state may result in a disaster, the passage of the same hurricane over a different state may not. The difference is a function of relative differences in vulnerability and response capacity between the two states. (40)

   Disasters can also be caused by a combination of natural and human hazards. (41) When an armed conflict and a peacetime disaster materialize simultaneously, the situation is often called a "complex emergency." (42) In such situations, the effects of the two phenomena coalesce to create an acute condition of human suffering, often...