This chapter clarifies the relevance, potential and limitations of international criminal law in relation to preventing, mitigating and responding to disasters. Disasters are usually complex and rarely entirely ‘natural’ or entirely ‘man-made’. In order to gauge the relevance of international criminal law in relation to disasters, it is crucial to examine how adverse human agency can intervene at various moments in the course of the development, impact, exacerbation of and recovery from a disaster. Depending on the circumstances, adverse human agency can be such that it meets the elements of an international crime, including when a disaster is not a sudden crisis but a slow and gradual decline over time.
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In post-conflict disaster contexts, children occupy a pivotal position. Not only do they often constitute over half of the population, as the next generation, responsible for the progression of post-conflict agreements and initiatives, children are key to reconstruction, reconciliation and future stability. Despite this, children have typically been underrepresented in post-conflict recovery schemes. This chapter considers the protection and promotion of children’s rights in post-conflict disaster contexts. Specifically, it analyses the contribution that transitional justice mechanisms can make to improving respect for children’s rights, to building sustainable peace and to building resilience in the face of future conflict-related disasters.
Kirsten Nakjavani Bookmiller
This chapter offers a retrospective analysis of International Disaster Response Law’s (IDRL) evolution in its opening decades, employing the International Federation of Red Cross and Red Crescent Societies’ 2000 policy launch as a pivotal starting point. It emphasizes relief law applicable to weather and geophysically based events. First establishing IDRL’s pre-2000 state, the study highlights recurring field themes and debates enduring over a century. It will then provide the backdrop for IDRL’s emergence in the early twenty-first century as a ‘peacetime’ disaster relief law movement. Next, the study will draw attention to several overarching issues that the Federation has wrestled with since launching its IDRL campaign. Such a focus serves as a constructive prism for appreciating both old and new challenges in the field’s advancement, particularly in light of the global policy conversation surrounding the draft articles on the Protection of Persons in the Event of Disasters.
While there is no formal definition of ‘disaster’ in international trade and investment law, the phenomenon is not alien to these legal disciplines. Often anticipated as a risk in legal terms and remediated on the same legal grounds (treaty provisions and contract clauses), a disaster also questions the state’s ability to regulate autonomously on the basis – or not – of legally defined exceptions to the general rule. In this context, this chapter proposes to revisit the traditional international economic law approach of disasters, which has long consisted in a mix between risk protection (section 2) and exception justification (section 3). In doing so, it contributes to the current debate on the state’s regulatory autonomy for the promotion of an inclusive and sustainable growth and development that is putting the individual at its core
James A. Green
The threat of cyber-inflicted disaster looms large. Yet there are few bespoke rules of international law governing cyber threats, and little prospect of new ‘cyber law’ emerging. The common approach to dealing with large-scale cyber threats has thus been to apply the existing prohibition of the use of force. It is no simple matter to apply the prohibition to cyber-attacks, however. Applying the prohibition also involves significant attribution problems, and it covers neither cyber-attacks perpetrated by non-state actors nor unintended cyber harm. It is therefore argued that the focus should be reoriented to another existing international legal obligation: the duty of due diligence. This duty has been applied successfully to other issues of international concern, and its application to cyberspace would remedy (or minimise) the issues associated with applying the prohibition of the use of force. The duty can act as a more effective means of trying to prevent cyber disasters.
International environmental law has been profoundly shaped by disasters. While international environmental law has been developed in order to avert or ameliorate catastrophes attributable to human activities, it also has relevance to the emerging field of disaster law that is primarily concerned with natural disaster preparedness, mitigation and response. This is not least because of the increasing difficulty in distinguishing natural from human-induced disasters in the Anthropocene. However, an international environmental law fashioned in the aftermath and shadow of a disaster suffers from several failings, fixating on discrete incidents and the risks of recurrence, rather than on the larger structural shortcomings in the international order that is enabling global environmental decline.
Walter Kälin and Hannah Entwisle Chapuisat
People displaced in the context of disasters associated with natural hazards and the impacts of climate change have specific protection and assistance needs that have only recently been recognised by legal scholars, human rights mechanisms and the broader international community. While existing international legal frameworks address some of the needs of disaster-displaced persons, particularly those displaced within their own countries, such frameworks are rarely implemented in practice, or, such as in the case of international human rights law, have not been explicitly applied to disaster displacement contexts. Legal gaps are particularly acute with respect to cross-border disaster displacement and what standards should guide admission, rights during stay and finding a lasting solution in such situations, although examples of effective practices related to such situations have been identified. Progress in recent years at the international and regional levels to address the protection and assistance needs of disaster-displaced persons, particularly in the context of the Nansen Initiative process, has helped lay the foundation for the creation of a more comprehensive legal framework for disaster-displaced persons in the future.
This chapter explores a range of dispute settlement mechanisms (DSMs) for resolving disputes in the aftermath of disasters. It thus fills an important gap in the existing scholarship, not only offering an in-depth assessment of the various mechanisms that might be employed to resolve future disaster-related disputes, but also considering what we can learn from past experiences here. The chapter considers a range of DSMs, looking in turn at international courts and tribunals, domestic courts and alternative dispute resolution mechanisms. These institutions are explored through seven case studies. A number of important conclusions are drawn from these case studies that should help to ensure that in future post-disaster situations the most appropriate DSMs are utilised in a way that ensures their effectiveness in resolving disaster-related disputes.
Thérèse O’Donnell and Craig Allan
International solidarity is proclaimed as a key value of the international community. Natural disasters offer the perfect context for its demonstration. Oftentimes international actors readily offer aid and assistance but the governing legal framework remains uncertain. Thus, the current ILC drafting project presents a welcome opportunity to codify and concretize matters. This chapter analyses the ILC draft article concerning external actors’ rights to offer assistance to disaster-stricken states. If the project’s focus is the protection of stricken populations, does this ‘right’ suggest or encourage the possibility of a duty to offer assistance when natural disasters strike? An alternative reading challenges any such duty. This chapter analyses the ‘right to offer’ in its own terms, and in the context of the other Draft Articles, and considers whether the draft provision materializes international solidarity.
Food security exists when all people have access to sufficient, safe and nutritious food to meet their needs. When food security is jeopardized, communities are more likely to become disaster victims. With predictions of global populations rising to 9 billion by 2050, states are facing challenges in meeting national food security. Law as a social institution must play a role in addressing food instability as a disaster risk. This chapter examines what role law currently plays before, during and after a disaster by discussing a state’s duty to prevent or mitigate environmental conditions likely to endanger food security, the human right to food during a disaster, and the obligation for States to ‘build back better’ after a disaster. The chapter concludes with a proposal for increasing investments in regional food networks to address both food security and disaster prevention.