Acting Deputy Legal Adviser
New York, New York
October 4, 2023
Thank you, Chair.
The United States is deeply committed to providing assistance to persons affected by disasters and is the largest single provider of humanitarian assistance worldwide. U.S. funding provides life-saving assistance to tens of millions of displaced and crisis-affected people worldwide, including food, shelter, safe drinking water, improved sanitation and hygiene, emergency healthcare services, protection programs, and education, among other activities.
The United States recognizes and appreciates the efforts of the International Law Commission in preparing the Draft Articles on the Protection of Persons in the Event of Disasters. In particular, we appreciate the ILC’s decision to include provisions on the protection of personnel providing assistance following disasters. While the United States believes that the Draft Articles can contribute to the provision of practical guidance and cooperation for disaster assistance, we continue to have reservations about several aspects of the Draft Articles.
In particular, the United States believes the definition of “disaster” in the Draft Articles may be problematic insofar as it does not clearly exclude circumstances such as situations of armed conflict or other political or economic crises. This approach creates a risk that the Draft Articles could conflict with international humanitarian law.
The United States also has concerns about the statement in Draft Article 13 that the provision of external assistance requires the consent of the affected state. While the United States agrees in principle that external assistance should normally be delivered with the consent of the affected state, it would be necessary to consider, based on all of the facts and circumstances, whether the provision of assistance without consent would violate the territorial integrity of the affected state or would violate the principle of non-intervention. There may be situations, such as where the government of an affected state has collapsed, where consent is either unavailable or unnecessary. We believe further changes are required for this provision to appropriately describe the role of state consent in the provision of disaster assistance.
Finally, the Draft Articles include numerous assertions of obligations that are not currently part of international law and should not, as a whole, be relied upon as a codification of existing law. For example, with respect to Draft Article 7, we do not agree that states currently have a specific legal obligation to cooperate with the range of organizations listed in this paragraph in responding to disasters. Similarly, Article 12 purports to establish a duty of potential assisting actors such as other states or the United Nations to “expeditiously” consider and reply to requests. Though we agree this may be an appropriate best practice, it is not an existing obligation under international law. Careful analysis and consultations with relevant actors will be necessary to ensure that the Draft Articles do not undermine existing bodies of international law, such as international human rights law. In some instances, provisions currently described as binding obligations may be more appropriately framed as non-binding guidelines.
The United States welcomes the opportunity to further discuss the Draft Articles in the Working Group and looks forward to valuable discussions in the coming days.
I thank you.