On Wednesday 6th December, the UN General Assembly adopted by consensus resolution A/C.6/79/L.16 submitted by the UNGA Sixth Committee (here). Based on this resolution, the UNGA has decided to ‘elaborate and conclude a legally binding instrument on the protection of persons in the event of disasters, without prejudice to the legal effects of any particular provisions contained therein, by the end of 2027 at the latest’ (OP 4). With its adoption, the UNGA has thus paved the way for negotiations on a universal treaty on the international legal framework relevant to disasters, based on the draft articles of the International Law Commission (ILC DAs) adopted in 2016. This contribution will focus on the long journey of the ILC DAs towards a treaty, the next steps and the legal issues that will be at the centre of the upcoming negotiations among States.
A long way from the 2004 tsunami to the future treaty
The topic of “Protection of Persons in the Event of Disasters” entered the ILC agenda in 2006 through a detailed preliminary study (Annex III) initiated by the ILC Secretariat, which highlighted the ‘perceived need for systematisation of such law’ (p. 206). Indeed, the legal challenges posed by the 2004 tsunami mega-disaster further highlighted the incoherent legal framework characterising this area of law (see IFRC Database) and the lack of a flagship treaty.
The activities of the ILC, led by Special Rapporteur Eduardo Valencia-Ospina, ultimately resulted in the adoption of the DAs. The text is not particularly long, consisting only of a preamble and 18 DAs, thus aiming to establish the main principles in the field. Nevertheless, it has its merits, as discussed elsewhere (here, here and in a past EJIL:Talk! post). First, its scope is extended to the entire disaster cycle, including relief and disaster risk reduction activities, while its definition of disaster (DA 3) addresses disasters caused by natural or man-made hazards, covering both sudden and slow-onset disasters. Secondly, its structure around two main axes comprehensively addresses key issues.
On the one hand, a set of provisions focus on the ‘vertical’ axis, addressing the relationship between disaster victims, the affected State and assisting actors (DAs 4, Human Dignity; 5, Humn Rights; 6, Humanitarian Principles). On the other hand, its ‘horizontal’ dimension focuses on the legal relations between affected States and assisting actors (DAs 7-17), regulating their roles in areas such as consent to assistance, offers and requests for assistance, or operational provisions governing relief operations. Finally, its final provision (DA 18) articulates the relationship between the DAs and other rules of international law, including international humanitarian law (IHL).
In 2016, the ILC ‘recommend to the General Assembly the elaboration of a convention on the basis of the draft articles’, departing from its trend of favouring ‘soft’ final forms for subjects under consideration (here). However, the endorsement of this recommendation has taken some time to materialise.
The UN General Assembly, through resolutions adopted in 2016 and 2018, invited governments to submit comments on this recommendation: These requests did not receive a significant number of responses from states (here and here). The turning point, however, was UNGA resolution 76/119 (2021) (here), also adopted through the support of the Core Group of States (Bahamas, Bangladesh, Colombia, Croatia, Hungary, Italy, Nigeria and Thailand). The resolution decided to ‘to consider further the recommendation of the Commission for the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles, or any other potential course of action with respect to the draft articles…within the framework of a working group of the (Sixth) Committee’, which was convened in 2023 and 2024 during the sessions of the UNGA Sixth Committee.
This specific format of the UNGA Sixth Committee, with similar features being replicated for the ILC text on crimes against humanity, was particularly helpful in facilitating a significant engagement by delegations on this issue. During the Working Group, dozens of States took the floor to make statements (written statements collected here and here, accompanied by oral statements during the debate), also on behalf of groups of States (e.g. Arab Group, African Group, Nordic Countries, European Union).
Based on this extensive debate and subsequent dialogue, which partly reshaped the draft resolution, the Sixth Committee finally adopted A/C.6/79/L.16, which sets out a number of milestones for the elaboration of a treaty. First, governments are invited to submit proposals for amendments to the DAs by 31 December 2025. In this case, therefore, the interest has shifted from debating comments on the text to proposing actual amendments for the second identified milestone. Indeed, by the end of 2026, a working group of the Sixth Committee will draw up a consolidated text that will include ‘the draft articles and the proposals submitted by Governments’. The final stage will be the drafting of the treaty ‘the end of 2027 at the latest, at the dates and location and in accordance with the modalities to be determined by the General Assembly at its eightieth session’. In fact, it will be up to the UN General Assembly next year to decide on the venue and procedural aspects of the negotiation phase, even though the same resolution A/C.6/79/L.16 already acknowledges how ‘the Government of the Philippines has expressed its interest in hosting a conference’.
Issues that will be at the forefront of the negotiations
While the next steps in the negotiation process have been clearly identified, the debates that have taken place in previous sessions of the Working Group, as summarised in the Chair’s reports (here and here), already make it possible to speculate on the main issues that will be at the centre of the debate, should they be reiterated as concrete amendments.
First, even if the current text of the ILC DAs will be the basis of the negotiations, States have already recognised the need to take advantage of the project as a whole, in particular the Commentary, as confirmed by the Chair’s reports, which mention States proposing to take into account elements “identified by the International Law Commission in the Commentary” (e.g. here, p. 3). Indeed, the ILC has addressed several important aspects in the Commentary that are not present in the plain text of the DAs, implying that some qualifying elements need to be ‘upgraded’ in the wording of the relevant provisions in order to clarify their scope. An example could be the same definition of disasters in DA 3, as the exclusion of events as mere situations of political and economic crisis or armed conflict from its application, in line with the common references to this term in this area of law, is present in the Commentary rather than in the text of DA 3. The same could be said of DA 18 on the relationship of this text to other rules of international law, where the Commentary provides a better understanding of the rationale and functioning of the DAs in relation to IHL.
Second, delegations have already emphasised a certain distance between those more inclined to strengthen the prerogatives of the States concerned, with a possible impact on the content of some provisions, and others wishing to maintain the balance already provided by the ILC. Examples of divergent views could be found in relation to DA 13 on consent, where the Chair’s report (p. 14) highlighted how ‘regarding paragraph 2, several delegations called for clarification of the reference to consent being “withheld arbitrarily”’ while ‘other delegations considered paragraph 2 to be a balanced provision’. The same could be said of the debates on DA 9, which deals with DRR.
Thirdly, the negotiating process needs to transform the current text into a treaty. While some formal aspects have already been provided by the ILC in the form of a preamble to shape its rationale, other missing elements will necessarily have to be filled in and have not yet attracted significant attention from states. Reference could be made to dispute settlement clauses or to the possible role of a meeting of states parties, a technical body or a secretariat, with a view to making the treaty a living instrument, creating fora that allow states to keep such issues on the international agenda and facilitate its application (e.g. here, p. 8).
Fourthly, the next steps should be used by States to reflect further on the actual content of the DAs in order to fill gaps, such as the role of transit States or references to a notification obligation. Furthermore, as already emphasised by several States during the Working Group, the text could be ‘further elaborated with more detail on particular measures to be undertaken in order to facilitate external assistance’ (Chair’s report, p. 16). This solution would imply a reversal of the current approach of DA 15, which only calls on States to provide domestic facilitation for relief personnel, goods and equipment. This more detailed approach would be in line with the outline originally proposed by the ILC Secretariat Secretariat (here p. 213), where it was suggested to include a set of substantive provisions on facilitation, based on the detailed provisions of treaties on relief activities such as the ITU Tampere Convention on the Provision of Telecommunication Resources or the IAEA Convention on Assistance in the Case of A Nuclear Accident or Radiological Emergency.
Indeed, as the IFRC recognises in its comments, from a legal perspective, ‘despite a better understanding and some progress, most governments remain widely unprepared for a disaster’: placing the burden on them to make their domestic frameworks ‘friendly’ to international relief operations and to address multiple sectoral national regulations could risk perpetuating the current fragmented scenario and jeopardise the effectiveness of the future treaty. Conversely, clear facilitations already provided for in the Treaty may be more appropriate.
2027: A centennial anniversary for international disaster law
Delegations adopting resolution A/C.6/79/L.16 largely overlooked (with the exception of one statement) how the timetable for the adoption of a treaty (“by 2027”) marked the centenary of the adoption of the Convention establishing the International Relief Union. This landmark treaty, which emerged from the projects presented by the President of the Italian Red Cross Giovanni Ciraolo since the 1921 Tenth International Conference of the Red Cross, was eventually adopted under the auspices of the League of Nations and represented at the time ‘the only important multilateral instrument of public international law to be concerned exclusively with disaster relief’ (MacAlister-Smith, 363).
The International Relief Union faced a number of challenges before disappearing after the Second World War, but its objectives, namely ‘to furnish to the suffering population first aid and to assemble for this purpose funds, resources and assistance of all kinds’ and ‘to encourage the study of preventive measures against disasters and to induce all peoples to render mutual international assistance’ (IRU, art. 2) are still relevant today. After a century, the time is ripe again for States to fill a relevant gap in international law by providing victims of disasters, affected States and assisting actors with a comprehensive, effective and functional universal treaty for dealing with disasters.
