Abstract
Prevention within IDRL is both a well-accepted concept which permeates politically relevant soft law documents and a specific obligation based on bilateral and multilateral treaties. However, the experience of the concept and the practice of prevention in IDRL is too limited in time to have reached the level of sophistication which the same concept has reached in international environmental law (IEL) and to allow for both establishing a general duty of prevention and spelling out its specific contents. Although the reference to IEL is indispensable in order to identify whether and how the content of the prevention obligation in this area can be relevant for the affirmation of a general duty to disaster prevention, other branches of international law are contributing to the progressive expansion of the scope of application of the duty to prevent disasters.
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Notes
- 1.
For a discussion on the principle of prevention, see Judge Cançado Trinidade separate opinion on ICJ, Case Concerning Pulp Mills on the River Uruguay, Judgment, 20 April 2010. Available at http://www.icj-cij.org/docket/files/135/15885.pdf. Accessed 8 February 2012.
- 2.
UN Doc. A/CN.4/590 (2007), ILC, Memorandum of the Secretariat, Protection of persons in the event of disasters, 24.
- 3.
International action on the prevention of natural disasters developed mainly after the launch of the International Decade on Natural Disaster Reduction by the Assembly General Resolution 44/263 of 22 December 1989.
- 4.
Romano 2001, 279.
- 5.
UN Doc. A/CONF.48/14&Corr. 1 (1973), UN Declaration on the Human Environment, June 16, 1972, Principle 21.
- 6.
Vessey 1998, 184.
- 7.
Trail Smelter Case, International Arbitral Award, 16 April 1938 and 11 March 1941, Part Three and ICJ, Corfu Channel Case, Judgment, 9 April 1949, 22.
- 8.
The Principle includes a concern for the environment as such, with no State-related connotations when it places upon the States the responsibility to ensure that no harm comes to ‘areas beyond the limits of national jurisdiction’ (that is areas such as the atmosphere, deep see, and Antarctica).
- 9.
In the sense that the State right to exploit its own resources is balanced by the obligation not to cause transboundary harm.
- 10.
Vessey 1998, 192.
- 11.
Ibid.
- 12.
In case the two clauses are considered as balancing each other, then the rights of the States to pursue environmental and developmental policies may lawfully temper the duty to prevent. On the contrary, in case they are separated, the second clause would impose an absolute standard of prevention.
- 13.
UNISDR 2004, 9 (vol. I).
- 14.
United Nations doc. A/CONF.206/L.I, Review of the Yokohama Strategy and Plan of Action for a Safer World, 6.
- 15.
United Nations, doc. A/CN.4/590, supra n. 2, 25. For a definition of Disaster Risk Reduction see Chap. 1 by de Guttry in this volume.
- 16.
Yokohama Strategy and Plan of Action for a Safer World. Guidelines for Natural Disaster Prevention, Preparedness and Mitigation World Conference on Natural Disaster Reduction Yokohama, Japan, 23–27 May 1994. Available at http://www.ifrc.org/Docs/idrl/I248EN.pdf. Accessed 21 February 2012
- 17.
‘Experience has demonstrated that, although not a part of the mandate of the Decade, the concept of disaster reduction should be enlarged to cover natural and other disaster situations including environmental and technological disasters (NaTechs) and their interrelationship which can have a significant impact on social, economic, cultural and environmental systems, in particular in developing countries’. Ibid., 8.
- 18.
Principle 9 states that ‘[e]nvironmental protection as a component of sustainable development consistent with poverty alleviation is imperative in the prevention and mitigation of natural disasters’.
- 19.
Principle 10, Yokohama Strategy and Plan of Action for a Safer World, supra n. 16.
- 20.
United Nations doc. A/CONF.206/L.I, supra n. 14, 6.
- 21.
Ibid., 10.
- 22.
United Nations doc. A/CONF.206/6, Final Report of the World Conference on Disaster Reduction, 3. See more extensively on this Chap. 9 by La Vaccara in this volume.
- 23.
See the Declaration of Panama of 29 July 2005 by the Association of Caribbean States, para 20; the Busan Declaration of November 2005 by the 13th Asia–Pacific Economic Cooperation (APEC) Leaders’ Meeting; The Dhaka Declaration on South Asia’s Environmental Challenges and Natural Disasters of November 2005 by the 13th Summit of the South Asian Association for Regional Cooperation, paras 33–35; the Guatemala Declaration of October 1999 by the 20th Ordinary Meeting of the Presidents of Central America, the Dominican Republic and Belize.
- 24.
The International Relief Union was terminated in 1968 when the UNESCO took over. See Fidler 2005.
- 25.
United Nations doc. A/CN.4/590, supra n. 2, 29.
- 26.
See Article 1 of the 1998 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations.
- 27.
See Article 2 of the 1999 Agreement between Member States and Associate Members of the Association of Caribbean States for Regional Cooperation on Natural Disasters.
- 28.
Ibid., Article 8.
- 29.
See Article 3.4 of the 2005 ASEAN Agreement on Disaster Management and Emergency Response.
- 30.
Ibid., Article 4. Monitoring, assessment and early warning systems are mentioned among these measures.
- 31.
See the 2005 Additional Protocol to the Agreement among the governments of Participating States of the Black Sea Economic Cooperation on Collaboration in Emergency Assistance and Emergency Response to Natural and Man-made Disasters as well as the 2005 ASEAN Agreement on Disaster Management and Emergency Response.
- 32.
See Article 3 of the Convention.
- 33.
See the Preamble of the Convention.
- 34.
These are only a few of the instruments listed in Annex IV to the abovementioned 1992 Convention on Transboundary Effects of Industrial Accidents.
- 35.
Among these activities we find training, monitoring, the establishment of emergency communication, and information systems. See Council Decision of 8 November 2007 establishing a Community Civil Protection Mechanism, 2007/779/EC, Euratom. OJ L 314, 01/12/2007. On the issue see Chap. 5 by Gestri in this volume.
- 36.
For a selection of bilateral treaties specifically devoted to disaster prevention and preparedness or including significant aspects of prevention see UN doc. A/CN.4/590, supra n. 2, 33.
- 37.
See Romano 2001, 387.
- 38.
ICJ, Gabcíkovo–Nagymaros Project, Judgment, 25 September 1997, para 140.
- 39.
Shelton and Kiss 1997, 91. See Article 192 of the 1982 UN Convention on the Law of the Sea and Article 20 of the 1997 UN Convention on Non-Navigational Uses of International Watercourses.
- 40.
UN doc. A/56/10 Supp. No. 10 (2001), Report of the ILC on the Work of its Fifty-Third Session, Chap. V, International Liability for Injurious Consequences Arising out of Acts Non Prohibited by International Law, 149.
- 41.
Ibid., 153.
- 42.
Romano 2001, 388.
- 43.
See, inter alia, the 1982 UN Convention on the Law of the Sea (Article 194); the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (Article 1); the 1992 Helsinki Convention on Transboundary Effects of Industrial Accidents (Article 3).
- 44.
Romano 2001, 391.
- 45.
UN doc. A/56/10 Supp. No. 10 (2001), supra n. 42. Article 2 (a).
- 46.
Ibid., commentary to Article 2.
- 47.
UN doc. A/CONF.151/26 (Vol. I), Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992.
- 48.
- 49.
- 50.
For an overview see Romano 2001.
- 51.
ICJ, Nuclear Tests Case, Judgment, 20 December 1974, para 46.
- 52.
UN doc. A/56/10 Supp. No. 10 (2001), supra n. 41, 156.
- 53.
1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Articles 11–13
- 54.
See n. 80–87 in Romano 2001 for international agreements dealing with co-operation on prevention of transboundary harm.
- 55.
Hand 2003, 154.
- 56.
‘The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them’. ICJ, Corfu Channel Case, Judgment, 9 April 1949, 22. Such a duty is equally confirmed by the Court in ICJ, Military and Paramilitary Activities in and against Nicaragua, Judgment, 27 June 1986, para 239.
- 57.
See the 1986 IAEA Convention on Early Notification of a Nuclear Accident.
- 58.
Romano 2001, 407.
- 59.
See 1982 UN Convention on the Law of the Sea, Article 206.
- 60.
ASEAN Agreement on the Conservation of Nature and Natural Resources, Kuala Lumpur, 9 July 1985, Article 14. Available at http://www.aseansec.org/1490.htm. Accessed 10 February 2012.
- 61.
See UN doc. A/56/10 Supp. No. 10 (2001), supra n. 41.
- 62.
ICJ, Case Concerning Pulp Mills on the River Uruguay, Judgment, 20 April 2010, para 205.
- 63.
See for instance Popiel 1995, 7.
- 64.
See on this the Yokohama Message, included in the Yokohama Strategy and Plan of Action for a Safer World, supra n. 16, Point 4.
- 65.
Hand 2003, 158.
- 66.
Agenda 21 together with the Rio Declaration on Environment and Development, and the Statement of principles for the Sustainable Management of Forests were adopted by more than 178 Governments in 1992 at the UN Conference on Environment and Development.
- 67.
UNDP–BCPR Global Report ‘Reducing Disaster Risk, A Challenge for Development’ 2004. Available at http://www.undp.org/cpr/whats_new/rdr_english.pdf. Accessed February 12 2012.
- 68.
An interesting example is the Strategic Environmental Assessment provided for by the Protocol on Strategic Environmental Assessment signed by 35 countries on 21 May 2003 during the Ministerial ‘Environment for Europe’ Conference (Kyiv). See Hand 2003, 158.
- 69.
Ibid., 159.
- 70.
See on this Chap. 15 by Creta in this volume.
- 71.
Kent 2001, 137–138.
- 72.
Hand 2003, 159–160.
- 73.
1948 Universal Declaration of Human Rights, UN General Assembly Resolution 217 A (III).
- 74.
See Hand 2003, 160.
- 75.
IFRC, World Disaster Report 2000, available at http://www.ifrc.org/en/publications-and-reports/general-publications/. Accessed 15 February 2012.
- 76.
Proceedings before the Court aimed at the ascertainment of the States’ responsibility in order to mandate the State to compensate the survivors.
- 77.
ECHR, Case of Budayeva and others v. Russia, Judgement, 29 September 2008.
- 78.
ECHR, Case of Öneryildiz v. Turkey, Judgment, 30 November 2004.
- 79.
Ibid., paras 128–129.
- 80.
Kalin and Haenni 2008, 31–32.
- 81.
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Nicoletti, B. (2012). The Prevention of Natural and Man-Made Disasters: What Duties for States?. In: de Guttry, A., Gestri, M., Venturini, G. (eds) International Disaster Response Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-882-8_8
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