On Wednesday sixth December, the UN Basic Meeting adopted by consensus decision A/C.6/79/L.16 submitted by the UNGA Sixth Committee (right here). Primarily based on this decision, the UNGA has determined to ‘elaborate and conclude a legally binding instrument on the safety of individuals within the occasion of disasters, with out prejudice to the authorized results of any specific provisions contained therein, by the tip of 2027 on the newest’ (OP 4). With its adoption, the UNGA has thus paved the way in which for negotiations on a common treaty on the worldwide authorized framework related to disasters, primarily based on the draft articles of the Worldwide Regulation Fee (ILC DAs) adopted in 2016. This contribution will give attention to the lengthy journey of the ILC DAs in direction of a treaty, the following steps and the authorized points that shall be on the centre of the upcoming negotiations amongst States.
A great distance from the 2004 tsunami to the longer term treaty
The subject of “Safety of Individuals within the Occasion of Disasters” entered the ILC agenda in 2006 via an in depth preliminary research (Annex III) initiated by the ILC Secretariat, which highlighted the ‘perceived want for systematisation of such regulation’ (p. 206). Certainly, the authorized challenges posed by the 2004 tsunami mega-disaster additional highlighted the incoherent authorized framework characterising this space of regulation (see IFRC Database) and the shortage of a flagship treaty.
The actions of the ILC, led by Particular Rapporteur Eduardo Valencia-Ospina, in the end resulted within the adoption of the DAs. The textual content just isn’t significantly lengthy, consisting solely of a preamble and 18 DAs, thus aiming to determine the primary rules within the subject. Nonetheless, it has its deserves, as mentioned elsewhere (right here, right here and in a previous EJIL:Discuss! submit). First, its scope is prolonged to your entire catastrophe cycle, together with aid and catastrophe threat discount actions, whereas its definition of catastrophe (DA 3) addresses disasters brought on by pure or man-made hazards, overlaying each sudden and slow-onset disasters. Secondly, its construction round two most important axes comprehensively addresses key points.
On the one hand, a set of provisions give attention to the ‘vertical’ axis, addressing the connection between catastrophe victims, the affected State and aiding actors (DAs 4, Human Dignity; 5, Humn Rights; 6, Humanitarian Rules). Alternatively, its ‘horizontal’ dimension focuses on the authorized relations between affected States and aiding actors (DAs 7-17), regulating their roles in areas akin to consent to help, gives and requests for help, or operational provisions governing aid operations. Lastly, its closing provision (DA 18) articulates the connection between the DAs and different guidelines of worldwide regulation, together with worldwide humanitarian regulation (IHL).
In 2016, the ILC ‘advocate to the Basic Meeting the elaboration of a conference on the idea of the draft articles’, departing from its development of favouring ‘tender’ closing types for topics into account (right here). Nevertheless, the endorsement of this advice has taken a while to materialise.
The UN Basic Meeting, via resolutions adopted in 2016 and 2018, invited governments to submit feedback on this advice: These requests didn’t obtain a major variety of responses from states (right here and right here). The turning level, nonetheless, was UNGA decision 76/119 (2021) (right here), additionally adopted via the help of the Core Group of States (Bahamas, Bangladesh, Colombia, Croatia, Hungary, Italy, Nigeria and Thailand). The decision determined to ‘to think about additional the advice of the Fee for the elaboration of a conference by the Basic Meeting or by a world convention of plenipotentiaries on the idea of the draft articles, or some other potential plan of action with respect to the draft articles…throughout the framework of a working group of the (Sixth) Committee’, which was convened in 2023 and 2024 through the classes of the UNGA Sixth Committee.
This particular format of the UNGA Sixth Committee, with related options being replicated for the ILC textual content on crimes in opposition to humanity, was significantly useful in facilitating a major engagement by delegations on this subject. Throughout the Working Group, dozens of States took the ground to make statements (written statements collected right here and right here, accompanied by oral statements through the debate), additionally on behalf of teams of States (e.g. Arab Group, African Group, Nordic International locations, European Union).
Primarily based on this intensive debate and subsequent dialogue, which partly reshaped the draft decision, the Sixth Committee lastly adopted A/C.6/79/L.16, which units out a variety of milestones for the elaboration of a treaty. First, governments are invited to submit proposals for amendments to the DAs by 31 December 2025. On this case, subsequently, the curiosity has shifted from debating feedback on the textual content to proposing precise amendments for the second recognized milestone. Certainly, by the tip of 2026, a working group of the Sixth Committee will draw up a consolidated textual content that may embody ‘the draft articles and the proposals submitted by Governments’. The ultimate stage would be the drafting of the treaty ‘the tip of 2027 on the newest, on the dates and site and in accordance with the modalities to be decided by the Basic Meeting at its eightieth session’. The truth is, it will likely be as much as the UN Basic Meeting subsequent yr to resolve on the venue and procedural elements of the negotiation part, although the identical decision A/C.6/79/L.16 already acknowledges how ‘the Authorities of the Philippines has expressed its curiosity in internet hosting a convention’.
Points that shall be on the forefront of the negotiations
Whereas the following steps within the negotiation course of have been clearly recognized, the debates which have taken place in earlier classes of the Working Group, as summarised within the Chair’s reviews (right here and right here), already make it doable to take a position on the primary points that shall be on the centre of the controversy, ought to they be reiterated as concrete amendments.
First, even when the present textual content of the ILC DAs would be the foundation of the negotiations, States have already recognised the necessity to make the most of the challenge as an entire, specifically the Commentary, as confirmed by the Chair’s reviews, which point out States proposing to bear in mind parts “recognized by the Worldwide Regulation Fee within the Commentary” (e.g. right here, p. 3). Certainly, the ILC has addressed a number of vital elements within the Commentary that aren’t current within the plain textual content of the DAs, implying that some qualifying parts have to be ‘upgraded’ within the wording of the related provisions with the intention to make clear their scope. An instance could possibly be the identical definition of disasters in DA 3, because the exclusion of occasions as mere conditions of political and financial disaster or armed battle from its utility, consistent with the widespread references to this time period on this space of regulation, is current within the Commentary fairly than within the textual content of DA 3. The identical could possibly be stated of DA 18 on the connection of this textual content to different guidelines of worldwide regulation, the place the Commentary supplies a greater understanding of the rationale and functioning of the DAs in relation to IHL.
Second, delegations have already emphasised a sure distance between these extra inclined to strengthen the prerogatives of the States involved, with a doable impression on the content material of some provisions, and others wishing to keep up the stability already offered by the ILC. Examples of divergent views could possibly be present in relation to DA 13 on consent, the place the Chair’s report (p. 14) highlighted how ‘concerning paragraph 2, a number of delegations known as for clarification of the reference to consent being “withheld arbitrarily”’ whereas ‘different delegations thought of paragraph 2 to be a balanced provision’. The identical could possibly be stated of the debates on DA 9, which offers with DRR.
Thirdly, the negotiating course of wants to rework the present textual content right into a treaty. Whereas some formal elements have already been offered by the ILC within the type of a preamble to form its rationale, different lacking parts will essentially should be crammed in and haven’t but attracted important consideration from states. Reference could possibly be made to dispute settlement clauses or to the doable position of a gathering of states events, a technical physique or a secretariat, with a view to creating the treaty a dwelling instrument, creating fora that permit states to maintain such points on the worldwide agenda and facilitate its utility (e.g. right here, p. 8).
Fourthly, the following steps must be utilized by States to replicate additional on the precise content material of the DAs with the intention to fill gaps, such because the position of transit States or references to a notification obligation. Moreover, as already emphasised by a number of States through the Working Group, the textual content could possibly be ‘additional elaborated with extra element on specific measures to be undertaken with the intention to facilitate exterior help’ (Chair’s report, p. 16). This resolution would suggest a reversal of the present strategy of DA 15, which solely calls on States to offer home facilitation for aid personnel, items and tools. This extra detailed strategy can be consistent with the define initially proposed by the ILC Secretariat Secretariat (right here p. 213), the place it was steered to incorporate a set of substantive provisions on facilitation, primarily based on the detailed provisions of treaties on aid actions such because the ITU Tampere Conference on the Provision of Telecommunication Assets or the IAEA Conference on Help within the Case of A Nuclear Accident or Radiological Emergency.
Certainly, because the IFRC recognises in its feedback, from a authorized perspective, ‘regardless of a greater understanding and a few progress, most governments stay extensively unprepared for a catastrophe’: putting the burden on them to make their home frameworks ‘pleasant’ to worldwide aid operations and to handle a number of sectoral nationwide laws may threat perpetuating the present fragmented situation and jeopardise the effectiveness of the longer term treaty. Conversely, clear facilitations already offered for within the Treaty could also be extra applicable.
2027: A centennial anniversary for worldwide catastrophe regulation
Delegations adopting decision A/C.6/79/L.16 largely missed (apart from one assertion) how the timetable for the adoption of a treaty (“by 2027”) marked the centenary of the adoption of the Conference establishing the Worldwide Aid Union. This landmark treaty, which emerged from the initiatives offered by the President of the Italian Purple Cross Giovanni Ciraolo for the reason that 1921 Tenth Worldwide Convention of the Purple Cross, was finally adopted below the auspices of the League of Nations and represented on the time ‘the one vital multilateral instrument of public worldwide regulation to be involved completely with catastrophe aid’ (MacAlister-Smith, 363).
The Worldwide Aid Union confronted a variety of challenges earlier than disappearing after the Second World Conflict, however its targets, specifically ‘to furnish to the struggling inhabitants first assist and to assemble for this objective funds, sources and help of all types’ and ‘to encourage the research of preventive measures in opposition to disasters and to induce all peoples to render mutual worldwide help’ (IRU, artwork. 2) are nonetheless related immediately. After a century, the time is ripe once more for States to fill a related hole in worldwide regulation by offering victims of disasters, affected States and aiding actors with a complete, efficient and useful common treaty for coping with disasters.
