Identifying solidarity : the ILC project on the protection of persons in disasters and human rights

O'Donnell, Therese and Allan, Craig (2017) Identifying solidarity : the ILC project on the protection of persons in disasters and human rights. George Washington International Law Review, 49 (1). pp. 53-95.

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Abstract

The article considers the ambitious International Law Commission (ILC) project on the draft articles on the protection of persons in disasters and its declaration of solidarity on the part of the international community towards disaster-stricken individuals. The project adopted a rights-based approach and by its focus on a duty of international cooperation initially suggested a radical move to a more explicit intertwining of protective duties of disaster-affected states and various external actors. The ILC project also seemed to signpost a new direction for human rights protection. By moving away from the oft-criticized, but still powerful, model of treaty-making driven by identity politics, the ILC draft Articles focused instead on a broad notion of universal humanity and needs-based assistance. This article considers the need for the ILC project, its rationale and its particular provisions as regards the responsibilities of various actors when a natural disaster strikes. In articulating what he understood by “solidarity,” the project’s Special Rapporteur invoked specific writings by Emer de Vattel. This article evaluates the ILC draft Articles in the light of this particular understanding of solidarity. The article concludes that the draft Articles in their current form do not meaningfully establish a partnership of immediate post-disaster humanitarian assistance between a disaster-affected state and relevant external actors (particularly third states). The full potential of the duty of cooperation has been thwarted by concerns and objections expressed by states during the drafting process. Further, by allowing offers of assistance to remain a matter of discretion, for states in particular, the draft Articles simply privilege the Westphalian preserve. It would seem that for many external actors, the plight of disaster victims will continue to be someone else’s problem and one which they do not wish to identify or identify with.

ORCID iDs

O'Donnell, Therese ORCID logoORCID: https://orcid.org/0000-0002-8995-717X and Allan, Craig;
CORE (COnnecting REpositories)