The Draft Articles were adopted by the International Law Commission (ILC) in 2016. The ILC subsequently presented the Draft Articles to the United Nations General Assembly with a recommendation that a convention be elaborated based on them. This recommendation was a notable departure from the ILC’s tendency, in recent decades, to recommend that articles be adopted in ‘soft’ final forms such as guidelines or recommendations.
The Draft Articles are a set of 18 articles that address the human rights and human dignity of people affected by disasters, disaster risk reduction and international disaster assistance. Consistent with its usual practice, the ILC prepared a version of the Draft articles with commentaries, which explain in detail the legal basis for each article.
IFRC’s position paper on the Draft Articles outlines three key reasons for supporting a new treaty based on the Draft Articles:
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There is a need for more detailed international regulation of external disaster assistance to address the perennial challenges encountered in this area. Despite increased understanding and some progress in this area during the past two decades, most states remain unprepared to receive external assistance, resulting in bottlenecks and delays. These challenges detrimentally impact affected populations, preventing them from receiving the assistance they need in a timely manner. They can also make it difficult for domestic authorities to control the quality and appropriateness of incoming external assistance. A new treaty could provide a degree of certainty about what states can expect from one another when they offer or accept disaster assistance and prompt the necessary national regulatory reforms. In particular, a new treaty could clarify the types of facilitation measures that will be granted to assisting states and other assisting actors if their assistance has been accepted or requested by the affected state.
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A new treaty based on the Draft Articles would generate vital momentum for disaster risk reduction. Investing in DRR pays large dividends, both in terms of avoiding human and economic impacts. While the Sendai Framework has undoubtedly catalysed stronger DRR action at domestic level, there is still a need for many states to strengthen their laws and policies in this area. The creation of a duty for disaster risk reduction, as is contemplated by the Draft Articles, would accelerate domestic efforts to reduce disaster risk, catalysing important legal and policy reforms at national and sub-national levels. This is critically important in the face of the growing risks posed by climate-related hazards.
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The current international legal landscape relating to disasters is an incomplete patchwork. None of the existing disaster instruments are universal in scope. Many existing instruments only apply to regional groups of states or only address specific types of disasters or specific forms of assistance. Moreover, the practical impact of the existing instruments is limited by low ratification numbers for binding instruments and the fact that several key instruments — such as the Sendai Framework and the IDRL Guidelines — are non-binding soft law. As a result, the international community lacks a clear and comprehensive legal framework to regulate disasters, with existing provisions being scattered across many different instruments of varying status. A universal, hard law instrument on the protection of persons affected by disasters would serve to clarify and consolidate states’ obligations with respect to the management of disasters and disaster risk.
In October 2023, during the United Nations General Assembly’s 78th session, a working group of the Sixth Committee will convene to discuss the Draft Articles. It is anticipated that the working group’s deliberations will focus on the prospect of developing a new treaty or other instrument. The prospect of a new treaty enjoys the support of a growing group of states from many different regions.
To learn more about why IFRC supports a new treaty, click here to read our position paper.