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Development of International Disaster by different International Law fields

Development of International Disaster by different International Law fields

The development of International Disaster by different International Law fields has led to the emergence of international disaster response laws, rules and principles (IDRL), comprised of a collection of international instruments addressing various aspects of post-disaster humanitarian relief. It aims to cover a broad range of rules, including issues related to initiation of disaster assistance, consent, access, conditions of assistance, and movement of personnel and materials.

Human Rights Law and IDRL

Human rights law (HRL) lays forth the general legal framework for disaster response, stating that it is primarily the responsibility of the territorial state, but it also binds states that provide help. HRL includes both customary rules and a slew of treaty commitments in the areas of civil, political, social, economic, and cultural rights.

The right to life, liberty, and security of persons, the right to personal identity, the right to humane treatment, the right to food and drink, and the right to health are among the most important human rights requirements under IDRL. Those rights must be protected in accordance with the fundamental concept of non-discrimination, which means that no one should be treated unfairly because of their race, color, sex, language, religion, political or other beliefs, national or social origin, property, birth, or any other position. IDRL’s primary concept of non-discrimination informs the norms of conduct for those delivering disaster help and relief.

Human rights, on the other hand, are subject to restrictions and exceptions. Limitation provisions allow states to limit the enjoyment of some civil and political rights (CPR) in the interests of national security, public safety, public health, or morals, or the protection of other people’s rights and freedoms. The freedom of movement, the freedom to express one’s religion, the freedom of expression, the right to assemble, and the freedom of association are all examples of rights that may be restricted.

Furthermore, in the event of a national emergency endangering the nation’s life, international instruments protecting civil and political human rights allow States to abdicate their responsibilities. Derogations must be transitory and non-discriminatory; they are subject to the proportionality criterion, and States wishing to use them must follow certain procedural criteria.

HRL has developed a series of non-derogable rights, including the right to life, the right to humane treatment, and the right to juridical personality, to minimize the impact of derogations. Law may limit economic, social, and cultural rights (ESCR) “only to the extent that such limitation is compatible with the nature of these rights and solely for the aim of promoting the general welfare in a democratic society.

However, under the ICESCR, States’ responsibilities in relation to the rights mentioned are subject to an inherent constraint in that they must be achieved “progressively” and “to the utmost extent possible.” As a result, in times of emergency, derogations from ESCR may be justified.

In fact, when a country is struck by a catastrophic event, the government’s ability to assure full compliance with a number of CPRs and ESCRs may be severely harmed. For instance, the freedom of movement or the right to assemble may be incompatible with the provision of assistance and relief at times. Floods of people compelled to flee a disaster area in severe situations could put a weak state’s life in jeopardy. In such circumstances, the affected State is likely to impose limits or derogations based on emergency laws.

As a result, IDRL should develop its own non-derogable rights discipline, taking into account both the standards included in human rights treaties and their implementation. Because a number of social, economic, and cultural rights are especially important for catastrophe victims, IDRL’s core of non-derogable rights should be enlarged to include commitments to ensure human beings’ basic needs for food, water, health, and the protection of vulnerable groups.

Environmental Law and IDRL

During the last two decades, the frequency and intensity of environmental risks has steadily increased, and their link to climate change has been recognized in international fora. As a result, disaster response is inextricably linked to national actions and regulations aimed at preventing environmental harm, as well as States’ international environmental commitments.

International environmental law (IEL) is made up of a variety of instruments such as treaties and agreements, declarations, recommendations, guidelines, and codes of conduct that deal with human-natural interactions.

While the existence of customary rules is still debatable, a number of general principles, such as the prevention principle, the ‘polluter pays’ principle, the principle of sustainable development, the principle of common but differentiated responsibilities, and the precautionary principle, are widely recognized as motivating States’ environmental activities.

The prevention principle is enshrined in a number of treaties aimed at preventing environmental harm, including the 1979 Geneva Convention on long-range trans-boundary air pollution and related protocols, the 1989 Basel Convention on trans-boundary movements of hazardous wastes, the 1992 United Nations Convention on Climate Change and the related 1997 Kyoto Protocol, the 1994 United Nations Convention to Combat Desertification, and the 2001 Stockholm Convention on persistent or irreversible environmental damage. The preventative concept is the basic foundation of disaster risk reduction, with these instruments playing such an important role in averting natural and man-made disasters.

Domestic regulations mandating polluters to face the true costs of their pollution are based on the ‘polluter pays’ idea. Several treaties dealing with civil liability for hazardous activities are founded on the notion of the owner’s responsibility, and the Council of Europe has proposed a convention on environmental protection through criminal law in order to harmonize member states’ environmental legislation. Because the later Convention has not yet come into force, the civil liability method may be a better fit for IDRL when it comes to compensation for victims of man-made disasters.

While the concepts of disaster risk reduction and disaster resilience include features such as sustainable development and shared but varied duties, the precautionary principle is more contentious. The EU strongly believes that when scientific data does not allow for a thorough assessment of the risk, policymakers can use this principle to take action to protect the public from harm.

The UN Global Compact principles incorporate the same premise. Although this viewpoint is not widely held, the precautionary principle can help to improve tactics for reducing the damage caused by natural and man-made disasters.

Health Law and IDRL

Natural disasters have a significant negative impact on public health. Natural disasters, in addition to the immediate and long-term impacts of man-made disasters, frequently result in the breakout of infectious diseases.   The transnational nature of public health challenges has become more apparent as a result of modern globalization.

As a result, through treaty obligations, regulations published by a variety of international organizations, and soft law instruments, a corpus of legal norms dubbed ‘global health law’ or ‘international health law’ has emerged. The goal of these principles is to promote global health growth with the engagement of public and private players, with the goal of establishing a global health governance structure.

The World Health Organization (WHO), one of the UN’s primary organizations, is expanding its efforts in response. Indeed, the WHO’s constitution empowers the board to “take emergency measures within the organization’s functions and financial resources to deal with events requiring immediate action,” as well as “authorize the director-general to take the necessary steps to combat epidemics, to participate in the organization of health relief to victims of a calamity,” and the IASC designated the WHO as the lead agency for the Global Health Cluste in 2005.

The World Health Assembly adopted new International Health Regulations (IHR) in the same year, with the goal of “preventing, protecting against, controlling, and providing a public health response to the international spread of disease in ways that are commensurate with and limited to public health risks, and that avoid unnecessary interference with international traffic and commerce.

Despite the fact that IHR does not specifically address disaster issues, they are inextricably linked to disaster response. States agree to build, strengthen, and maintain the capacity to detect, assess, notify, and report public health events that may constitute a public health emergency of international concern that occur on their territory; they also agree to build, strengthen, and maintain the capacity to respond quickly and effectively to public health risks and public health emergencies of international concern.

WHO organizations provide recommendations on appropriate health measures to be adopted based on relevant information provided by member states. Clearly, good public health governance is essential for reducing disaster impact and ensuring efficient disaster response.

The IHR and other relevant international agreements shall be construed as compatible, without impairing States parties’ rights and duties under other international accords. However, public health precautions that States may take, for example, in accordance with Part V of the IHR, may make it difficult for emergency workers to access their territory in the case of a disaster. As a result, it is critical that Global Health Law and IDRL grow concurrently in domestic legislation as well as international practice when it comes to implementing IHR and disaster response.

International Humanitarian Law and IDRL

IHL makes a significant contribution to the growth of IDRL. Except for combat law, which governs the material conduct of armed conflict, the rest of the IHL corpus contains several concepts and laws that address the needs of those affected by the disaster. In fact, disaster victims are wounded, sick, displaced, in danger, and in need of protection, just like victims of armed conflict.

The protection of the injured and sick is one of the most important sets of rules. There are numerous rules on this subject in the Geneva Conventions (GCs) I and II of 1949, as well as the two Additional Protocols (APs) of 1977.

Article 9 of Additional Protocol I expresses the fundamental principle of non-discrimination. The phrasing is consistent with HRL, although distinctions based on medical reasons are especially important in IHL (as well as in IDRL). IHL regulations relating to the respect and protection of medical professionals, materials, and transports provide a framework for ensuring the safety of individuals delivering disaster relief and assistance, as well as humanitarian units and transports.

In general, IHL rules relevant to the protection of civilians in times of war, such as those pertaining to the protection of the entire population, impose obligations and confer rights on belligerent States. However, some stipulations are more precisely drafted in terms of individual rights, such as the exchange of family news, which ‘all persons’…’shall be enabled to give,’ the application to a relief organisation, which protected persons’shall have every facility for making,’ and the right of aliens to leave the territory. Individuals gain directly from IHL, as evidenced by these clauses. As a result, they are valuable resources for IDRL.

IHL applicable to occupied territories also includes a number of principles relevant to IDRL, such as the prohibition of forcible transfers (except when evacuation is necessary for the population’s security), the delivery of food and medical supplies to the population, and the maintenance of medical and hospital services, public health, and hygiene, ‘with particular reference to the adoption and application of the prophylactic and preventive measures necessary to coexist’. Furthermore, the statutes governing the treatment of internees provide IDRL with specific guidelines in terms of lodging, medical care, administration, and relief.

The underlying justification for the laws relevant to international armed conflict law, namely, the opposition between the responsibility bearers (belligerent States), does not exist in disaster situations. The law of non-international armed conflict, as codified by Article 3 of the GCs and Additional Protocol II, may appear to be closer to IDRL. Regrettably, it contributes little to this purpose.

On the one hand, the abovementioned instruments’ fundamental guarantees are significantly less robust than HRL’s. However, they lack the specificity of regulations relevant to international armed conflict law, but comprehensive norms of behaviour are critical in difficult situations such as disasters. As a result, the fundamental focus of IDRL development should be on the concepts that underpin the protection of victims of international armed conflict.

 

Read also: Harvard Global Health Institute(HGHI) 2022 LEAD Fellowship Program

 

 

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