International Law Commission International Law Commission

Last update: February 23, 2018

Summaries of the Work of the International Law Commission

Protection of persons in the event of disasters

See also: Analytical Guide | Texts and Instruments

At its fifty-eighth session, in 2006, the Commission, on the basis of the recommendation of a Working Group on the long-term programme of work, identified the topic “Protection of persons in the event of disasters” for inclusion in its long-term programme of work.1

The General Assembly, in resolution 61/34 of 4 December 2006, took note of the Commission’s decision to include the topic in its long-term programme of work.

At its fifty-ninth session, in 2007, the Commission decided to include the topic in its programme of work and to appoint Mr. Eduardo Valencia-Ospina as Special Rapporteur for the topic.2

The General Assembly, in resolution 62/66 of 6 December 2007, took note of the Commission’s decision to include the topic in its programme of work.

At the sixtieth session, in 2008, the Commission had before it the preliminary report of the Special Rapporteur3 which traced the evolution of the protection of persons in the event of disasters and identified the sources of law on the topic as well as previous codification efforts and development of the law in the area. The Commission also had before it a memorandum by the Secretariat,4 focusing primarily on natural disasters and providing an overview of existing legal instruments and texts applicable to various aspects of disaster prevention and relief assistance.5

At the sixty-first session in 2009, the Commission considered the second report of the Special Rapporteur analysing the scope of the topic ratione materiae, ratione personae and ratione temporis, and issues relating to the definition of "disaster" for purposes of the topic, as well as undertaking a consideration of the basic duty to cooperate.6 The report further contained proposals for draft articles 1, 2 and 3. The Commission also had before it the Memorandum by the Secretariat, as well as written replies submitted by the Office for the Coordination of Humanitarian Affairs of the United Nations Secretariat and the International Federation of the Red Cross and Red Crescent Societies to the questions addressed to them by the Commission in 2008. The Commission received the report of the Drafting Committee7 and took note of draft articles 1 to 5, as provisionally adopted by the Drafting Committee (A/CN.4/L.758).8

At its sixty-second session in 2010, the Commission had before it the third report of the Special Rapporteur,9 providing an overview of the views of States on the work undertaken by the Commission thus far, a consideration of the principles that inspire the protection of persons in the event of disasters, in its aspect related to persons in need of protection, and a consideration of the question of the responsibility of the affected State. Proposals for the following three further draft articles were made in the report: draft articles 6 (Humanitarian principles in disaster response), 7 (Human dignity) and 8 (Primary responsibility of the affected State). The Commission provisionally adopted draft articles 1 to 5,10 of which it had taken note at its 2009 session,11 as well as commentaries thereto.12Furthermore, the Commission took note of draft articles 6 to 9, as provisionally adopted by the Drafting Committee.13

At the sixty-third session in 2011, the Commission had before it the fourth report of the Special Rapporteur,14 dealing with the responsibility of the affected State to seek assistance where its national response capacity is exceeded, the duty of the affected State not to arbitrarily withhold its consent to external assistance, and the right to offer assistance in the international community. The Commission decided to refer draft articles 10 to 12, as proposed by the Special Rapporteur in his fourth report, to the Drafting Committee.15 The Commission provisionally adopted six draft articles, together with commentaries,16 including draft articles 6 to 9, which it had taken note of at its sixty-second session in 2010, dealing with humanitarian principles in disaster response, human dignity, human rights and the role of the affected State, respectively, as well as draft articles 10 and 11, dealing with the duty of the affected State to seek assistance and the question of the consent of the affected State to external assistance.

At the sixty-fourth session in 2012, the Commission had before it the fifth report of the Special Rapporteur,17 providing an overview of the views of States on the work undertaken by the Commission up until then, a brief discussion of the Special Rapporteur’s position on the Commission’s question in Chapter III.C of its 2011 annual report, as well as a further elaboration of the duty to cooperate. The report also contained a discussion of the conditions for the provision of assistance and the question of the termination of assistance. Proposals for the following three further draft articles were made in the report: draft articles A (Elaboration of the duty to cooperate), 13 (Conditions on the provisions of assistance) and 14 (Termination of assistance). The Commission referred draft articles A, 13 and 14 to the Drafting Committee, and subsequently received the report of the Drafting Committee and took note of draft articles 5 bis and 12 to 15, as provisionally adopted by the Drafting Committee.

At the sixty-fifth session in 2013, the Commission had before it the sixth report of the Special Rapporteur,18 dealing with aspects of prevention in the context of the protection of persons in the event of disasters, including disaster risk reduction, prevention as a principle of international law, and international cooperation on prevention. The report further provided an overview of national policy and legislation. Proposals for the following two draft articles were made in the report: draft articles 5 ter (Cooperation for disaster risk reduction) and 16 (Duty to prevent). The Commission referred draft articles 5 ter and 16 to the Drafting Committee. The Commission subsequently adopted the report of the Drafting Committee on draft articles 5 bis and 12 to 15, which had been considered at the previous session, as well as the report of the Drafting Committee on draft articles 5 ter and 16.

At the sixty-sixth session in 2014, the Commission had before it the seventh report of the Special Rapporteur,19 dealing with the protection of relief personnel and their equipment and goods, and included a proposal for draft article 14 bis (protection of relief personnel, equipment and goods). The report further considered the relationship of the draft articles being developed and other rules, and included proposals for draft articles 17 (Relationship with special rules of international law), 18 (Matters related to disaster situations not regulated by the present draft articles) and 19 (Relationship to the Charter of the United Nations). The report also contained a proposal for draft article 3 bis (Use of terms). The Commission subsequently considered and adopted the report of the Drafting Committee on draft articles 1 [1] to 21 [4], and, accordingly, adopted the draft articles on the protection of persons in the event of disasters on first reading. The Commission decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft articles, through the Secretary-General, to Governments, competent international organizations, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2016. The Commission also indicated that it would welcome comments and observations on the draft articles from the United Nations, including the Office for the Coordination of Humanitarian Affairs and the United Nations Office for Disaster Risk Reduction, by the same date.

The work of the Commission on the topic as described above has been proceeding in accordance with the successive resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.20

At its sixty-eighth session, in 2016, the Commission had before it the eighth report of the Special Rapporteur,21 as well as comments and observations received from Governments, international organizations and other entities.22 The Commission commenced the second reading of the draft articles on the protection of persons in the event of disasters, on the basis of the eighth report of the Special Rapporteur and the comments and observations received. The Commission subsequently adopted, on second reading, a draft preamble and 18 draft articles, together with commentaries thereto, on the protection of persons in the event of disasters. In accordance with article 23 of its Statute, the Commission recommended to the General Assembly the elaboration of a convention on the basis of the draft articles on the protection of persons in the event of disasters.23

By resolution 71/141 of 13 December 2016, the General Assembly took note of the draft articles, invited Governments to submit comments on the recommendation by the Commission to elaborate a convention on the basis of the draft articles, and decided to include in the provisional agenda of its seventy-third session, in 2018, an item entitled “Protection of persons in the event of disasters”.

1 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 257. For the syllabus on the topic, see ibid., annex C.

2 See Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), para. 375.

3 See document A/CN.4/598.

4 See document A/CN.4/590, Add.1, Add.2 and Add.3.

5 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), paras. 217–264.

6 See document A/CN.4/615 and Corr.1.

7 See document A/CN.4/L.758.

8 See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10), paras. 153–183.

9 See document A/CN.4/629.

10 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), para. 298.

11 See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10), paras. 153–183.

12 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), paras. 299 and 331.

13 See document A/CN.4/L.776. ibid., para. 297.

14 See document A/CN.4/643 and Corr.1.

15 See Official Records of the General Assembly, Sixty-sixth session, Supplement No. 10 (A/66/10), para. 272.

16 Ibid., para. 289.

17 See document A/CN.4/652.

18 See document A/CN.4/662.

19 See document A/CN.4/668, Corr.1 and Add.1.

20 General Assembly resolutions 62/66 of 6 December 2007; and 63/123 of 11 December 2008.

21 See document A/CN.4/697.

22 See document A/CN.4/696 and Add.1.

23 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), paras. 43 to 46 and 48.