Disaster Management and International Space Law [1 ed.] 9789004388369, 9789004388352

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Disaster Management and International Space Law

Studies in Space Law General Editor F.G. von der Dunk (University of Nebraska-Lincoln, College of Law, Space, Cyber and Telecommunications Law Program) Editorial Board E. Back Impallomeni (University of Padua) M. Ferrazzani (Head Legal Department, esa, Paris) S. Freeland (University of Western Sydney) J. Gabrynowicz (National Remote Sensing & Space Law Center, University of Mississippi) S. Hobe (University of Cologne) R. Jakhu (Institute of Air and Space Law, McGill University) F. Lyall (University of Aberdeen) V.S. Mani (School of Law and Governance, Jaipur National University, Jaipur) K.U. Schrogl (esa, Paris) L.J. Smith (Leuphana University, Luneburg)

volume 15

The titles published in this series are listed at brill.com/slaw

Disaster Management and International Space Law By

Diego Zannoni

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1871-7659 isbn 978-90-04-38835-2 (hardback) isbn 978-90-04-38836-9 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

A mio padre Valerio e a mia madre Mary To my father Valerio and mother Mary

∵

Contents Foreword  ix Acronyms  xi Introduction  1 1 Addressing Disasters in Today’s World  1 2 A Premise on the Method  6 1 Disaster Prevention  12 1.1 A Historical Overview  12 1.2 What Is a “Disaster” of International Significance?  17 1.3 Natural and Man-Made Disasters  24 1.4 The Prohibition of Transboundary Pollution  30 1.5 The Duty to Notify Impending Man-Made Disasters  36 1.6 Conclusions  40 2 Humanitarian Assistance in the Wake of Disasters  48 2.1 The Consent of an Affected State to Humanitarian Assistance  48 2.2 Explicit and Implicit Refusal to Humanitarian Assistance in International Practice  54 2.3 Arbitrary Refusal to Humanitarian Assistance in Situations of Armed Conflict  56 2.4 Arbitrary Refusal to Relief Flights  63 2.5 Arbitrary Refusal to Humanitarian Assistance in Situations of Disaster  69 2.6 Refusing Humanitarian Assistance and Human Rights  74 2.7 What Happens When Humanitarian Assistance Is Arbitrarily Refused?  81 2.8 Refusing Humanitarian Assistance and the Role of the Security Council  83 2.9 Towards a Responsibility to Protect in Case of Disaster?  92 2.10 Airdrops and the Defence of Necessity  98 2.11 Ascertaining the Arbitrariness of Refusal  102 2.12 The Duty to Provide Humanitarian Assistance upon Request  106 2.13 Conclusions  117

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Contents

3 The Operation of Satellites and the Consent of the Underlying State  124 3.1 Introduction  124 3.2 Is a Delimitation between Airspace and Outer Space Needed?  126 3.3 Usque ad Coelum  131 3.4 Spatialist Theories  132 3.5 Functional Theory  136 3.6 Conclusions  143 4 Remote Sensing and Disaster Management  148 4.1 Introduction  148 4.2 The Legal Value of General Assembly Resolutions  151 4.3 The Legal Value of the Remote Sensing Principles  155 4.4 The Principles of Remote Sensing as a Means to Interpret the Outer Space Treaty  159 4.5 The State’s Right to Privacy  165 4.6 The Right to Disseminate Sensed Data to Third Countries  172 4.7 The Transfer of Remote Sensing Technology  180 4.8 The Sensed State’s Right to Access Sensed Data  182 4.9 Access to Sensed Data and Customary Law  185 4.10 Reasonable Cost Terms in Practice  190 4.11 Provisions and Omissions of the Resolution on Early-Warning of Disaster and Relief  192 4.12 Data Transmission for Early-Warning of Disaster and Relief  194 4.13 Verification of Remote Sensing Principles  202 4.14 Conclusions  204 5 Telecommunications and Disaster Management  207 5.1 Introduction  207 5.2 The Consent of the Target State for Fixed Services  209 5.3 The Consent of the Target State for Non-fixed Services  210 5.4 The Priority of Distress and Safety Telecommunications  218 5.5 The Special Protective Regime for Distress and Safety Frequencies  221 5.6 Conclusions  225 Final Remarks  229 Bibliography  235 Index  258

Foreword On 13 December 1958, just a few months after the dawn of the Space Age, the United Nations General Assembly adopted its first outer space related resolution, which recognized that the “developments in respect of outer space have added a new dimension to man’s existence and opened new possibilities for the increase of his knowledge and the improvement of his life”. This simple, straightforward, brief but powerful expression of the international ­community ushered an unprecedented global thinking “to avoid the extension of present national rivalries into this new field”, and more importantly “to promote e­ nergetically the fullest exploration and exploitation of outer space for the benefit of mankind”. This resolution planted a very small seed for the big tree of international space law to take birth and to shape the humanity’s fervent desire to progress on, and beyond, its mother spaceship, the Earth. More ­importantly, it ushered different global thinking about the purpose of the n ­ ewest branch of international law to serve the interests of mankind, rather than simply and only to continue regulating international relations among independent and sovereign States. There is nothing more important, fundamental and humanistic than serving the urgent and disparate needs of people (humanity, and global society) during unexpected situations and dire emergencies caused by natural disasters and man-made calamities. Therefore, from its inception international space law contains innovative and foundational ­elements that relate to disaster management at the global level. Unfortunately, so far, international space law scholars either ignored or paid only a lip service to the exploration and examination of a close relationship between disaster management and international space law. To the best of my knowledge, this book is the first manuscript to address this relationship in a systematic and comprehensive manner. The book is appropriately based on the premises that sources of international space law are varied. In other words, a careful search for or an astute analysis of rights and obligations of States with respect to disaster management must not be limited only to the five so-called United Nations space ­treaties and/or the International Charter on Space and Major Disasters. The book follows correctly a holistic approach to international space law teaching and research as it scrupulously detects and dissects the relevant rules of the law that governs disaster management, irrespective of their sources, be they international ­treaties, both general or specific, customary international law, g­ eneral principles of international law, which deal with a variety of ­subjects ­including outer space, human rights, humanitarian actions, military

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Foreword

o­ perations, ­environmental i­ ssues, climate change, pollution, nuclear radiation, natural disasters, man-made misadventures, etc. In addition, the subject of the book has been carefully and thoroughly addressed with the use of an extensive research, credible sources of the law, and appropriate methodology for interpreting international treaties, and by presenting the analyses and findings in a logical order. In brief, the book is the most comprehensive, analytical and excellent study of international space law and disaster management. This sets a high standard in international space law research and is a must-read for anyone interested in the subject, which is expected to gain more interest as, unfortunately, the number, severity and globalization of disasters increase. Ram S. Jakhu

Institute of Air and Space Law McGill University Montreal, Canada

Acronyms AASL AFDI AJIL BYIL CEOS CESCR CTBTO ECHR GYIL ICCPR ICESCR ICJ ICLQ ICRC IFRC

Annals of Air and Space Law Annuaire française de droit international American Journal of International Law British Yearbook of International Law Committee on Earth Observation Satellites Committee on Economic, Social and Cultural Rights Comprehensive Nuclear-Test-Ban Treaty Organization European Court of Human Rights German Yearbook of International Law International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice The International and Comparative Law Quarterly International Committee of the Red Cross International Federation of Red Cross and Red Crescent Societies ILC International Law Commission ILM International Law Materials IMS International Monitoring System ITU International Telecommunications Union JSL Journal of Space Law MEPIL Max Planck Encyclopedia of Public International Law NASA National Aeronautics and Space Administration Outer Space Treaty Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies RDI Rivista di diritto internazionale RFDAE Revue française de droit aérien et spatial RIAA Reports of International Arbitral Awards SP Space Policy TFEU Treaty on the Functioning of the European Union UNCOPUOS United Nations Committee on the Peaceful Uses of Outer Space UNDP United Nations Development Programme UNDRO United Nations Disaster Relief Office UNGA United Nations General Assembly UNTS United Nations Treaty Series WARC World Administrative Radio Conference

xii WHO WRC YILC ZLW

Acronyms World Health Organization World Radiocommunication Conference Yearbook of the International Law Commission Zeitschrift für Luft-und Weltraumrecht

Introduction 1

Addressing Disasters in Today’s World

The constant evolution of the Earth’s surface results from the combined effect of endogenous and exogenous agents. Earthquakes, tsunamis, storms, hurricanes, wildfires and droughts have occurred over time and have been part of human history and endeavour. They have triggered surprising episodes as the eruption of Vesuvius and the tidal wave that hit Lisbon in 1755. According to recent UN data, a significant natural disaster strikes on average once a week, with tragic consequences in terms of loss of lives, destruction and environmental impact. When industrialized areas are affected, the consequences of the disaster may be even more severe: in the years 2010–2013, for the first time in history, the world experienced consecutive annual economic losses of more than $100 billion, due to the increased exposure of industrial assets and private property to extreme disaster events.1 Such figures tend to increase with a growing population. Arguably, climate change will trigger more intense disasters that include storms, tropical cyclones and droughts,2 therefore scientific discussion can no longer be simply limited to the “protection of the environment”, but must now encompass another vital objective: the “protection from the environment”. Industrial and technological development, as side-effect, has brought on man-made disasters alongside natural ones. However, in accepting the inevitability of a disaster, many actions can be taken to prevent specific disasters, and many more steps can be taken to mitigate the harm borne.

1 Cf. The United Nations Office for Disaster Risk Reduction (unisdr), Press Release, 14 March 2013, unisdr 2013/05, Economic Losses from Disasters Set New Record in 2012, p. 1. “Since the Yokohama Strategy was adopted, there have been about 7,100 disasters resulting from natural hazards around the world. They have killed more than 300,000 people, and caused more than US$ 800 billion in losses. Some estimates suggest that well over 200 million people have been affected every year by “natural” disasters since 1991”. United Nations, World Conference on Disaster Reduction, Review of the Yokohama Strategy and Plan of Action for a Safer World, Kobe, Hyogo, 18–22 January 2005, A/CONF.206/L.1, pp. 4–5. According to the data collected for the World Disasters Report 2016 between 2006 and 2015, 771.000 people were killed and 2 billion people affected worldwide. World Disasters Report 2016, pp. 232–263. 2 UN ocha and idmc, Monitoring Disaster Displacement in the Context of Climate Change, 22 September 2009, p. 12. Report of the Committee on the Peaceful Uses of Outer Space, Fiftyfourth session (1–10 June 2011). unga Official Records, Sixty-sixth Session, Supplement n. 20, New York, 2011, p. 35, par. 251.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004388369_002

2

Introduction

Since disasters “do not respect borders”,3 and often touch upon important State interests, yielding costly consequences, they often require joint international efforts in terms of prevention and response. Not surprisingly, the past decades have witnessed a notable development of this area of international law, with an increasing number of treaties signed and ratified worldwide. They serve to regulate a diversity of issues ranging from information sharing, early warning mechanisms, to the activation of emergency support.4 This work provides a systematization of the main legal issues that respond to the so-called disaster cycle, addressing not only the relief phase, but also preventive measures of disasters risk reduction, with a special focus on major space applications and the attendant specific legal regimes. The method applied herein, which is generally applied in international law studies, entails focusing on existing customary norms which should firstly be identified through States’ opinio iuris and practice. The first issue to verify is whether and to what extent there is an obligation to notify impending disasters under international law (so called “earlywarning”), which raises a number of interrelated questions, specifically of who must notify, when, and what information should be given by the notification.5 Such obligation on the part of States may be crucial as an emergency notification allows potentially affected countries the greatest possible opportunities to prepare for, and mitigate, potential damages. This constitutes the basic component of a system designed to prevent and ultimately limit the consequences of a harmful event. Considering humanitarian assistance from the outside, one initial issue is that aid workers may need to access the affected State’s territory. Critical issues arise when the affected State refuses an offer of assistance, despite its inability or unwillingness to provide the needed humanitarian assistance to the victims 3 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, par. 4 of the Yokohama Message. 4 There are various archives containing disaster-related agreements. See, for example, the International Disaster Response Law legal database, which is a collection of both international and national legal documents relevant to international disaster response operations, managed by the International Federation of Red Cross and Red Crescent Societies: http://www .ifrc.org/publicaciones/disaster-law-database/. 5 The notion of early warning refers to the means by which a potential hazard is detected or forecast, and an alert issued. unga, Environment and Sustainable Development: International Decade for Natural Disaster Reduction. Early-Warning Capacities of the United Nations System with Regard to Natural Disasters. Report of the Secretary-General, 9 October 1995, A/50/526, p. 4. International Strategy isdr for Disaster Reduction, Living with Risk, A Global Review of Disaster Reduction Initiatives, 2004 Version, Volume ii Annexes, United Nations, New York-Geneva, 2004, p. 3.

Introduction

3

because either it cannot adequately respond to the resulting harm, or it has not employed its resources since the harm may be regarded as insignificant or even desirable.6 Faced with such hypotheses, the international community has in principle three possible options: to leave the population affected by the disaster to its fate; to use lawful measures, which will have to be better identified, to induce the recalcitrant State to accept the delivery of humanitarian assistance; or, finally, to use force in order to make the delivery of humanitarian assistance possible, despite a lack of consent on the part of the affected State. In such case, the core legal issue is to assess whether the sovereignty of the affected State and the principle of non-intervention may be subject to limitations, as long as they are for humanitarian assistance. The prohibition of interference in a State’s domestic affairs, as a corollary of territorial sovereignty, is deeply rooted in international law. The United Nations cannot intervene in matters which are under the domestic jurisdiction of Member States, except pursuant to Chapter vii of the UN Charter.7 The non-intervention principle also applies to inter-State relations. This refers not only to military humanitarian intervention, but also to the establishment of inquiry commissions, site visits, for which human rights mechanisms require the consent of the State. Similar “sensitive” issues are touched in the domain of post disaster assistance. Yet, deference to State sovereignty may hinder a prompt delivery of assistance. A balance should be attained between the prohibition of intervention and the duty each State has to respect the human rights of people under its jurisdiction. Nowadays, sovereignty is interpreted more as a responsibility than a privilege, that is a responsible sovereignty – where States are increasingly conceived as instruments that should serve their peoples, and not vice versa.8 It is a truism that today human rights are no longer the exclusive concern of a single State where these rights may have been infringed; but rather, they c­ oncern the world community as a whole.9 There is a widespread belief that human 6 Concerning the last hypothesis, think of a State which takes advantage of the occurrence of a natural disaster by leaving an ethnic minority without the required humanitarian assistance in order to make it disappear. 7 Art. 2 (7), UN Charter. On the notion of domestic jurisdiction, see G. Arangio-Ruiz, Le domaine réservé. L’organisation internationale et le rapport entre droit international et droit interne, Recueil des cours, 1990, vol. vi, pp. 29–479. 8 The doctrine on this issue is vast. See, for instance, C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, Recueil des cours, 1999, vol. 281, pp. 223–224; C. Focarelli, Duty to Protect in Cases of Natural Disasters, mepil, 2013, par. 31. 9 The Report of the High-level Panel on Threats, Challenges and Change consistently specifies that the notion of sovereignty “clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community”. Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 2004, par. 29.

4

Introduction

rights violations cannot and should not be trampled upon with impunity no matter where in the world. From this perspective, Kant’s prophetic proposition based on a “cosmopolitan or world law” has come true, in the sense that “a violation of rights in one place is felt throughout the world”.10 Thus, the first alternative of leaving the affected population to its fate can hardly be seen as a workable solution.11 Greater humanitarian conscience may lead to conceive humanitarian assistance as a right for the people in need and a duty resting upon the local authority, as well as a right-duty for those who are able to provide it from the outside. Whether such dictates of humanity have already been or are about to be translated into legal norms shall be addressed hereafter.12 It will be highlighted that, through the practice of treaty monitoring bodies tasked with supervising the observance of human rights treaties, a rich array of duties has been recognised to exist in the area of disaster management. The possible exercise of the UN Security Council powers under Chapter vii of the UN Charter will be assessed in the specific context of disaster response. The legal position of third States vis-à-vis the State affected by the disaster will be clarified, in particular in terms of the existence and extent of a right-duty to provide humanitarian assistance. Whether refusal to humanitarian assistance on the part of the unable or unwilling State is lawful or unlawful under international law – which will have to be ascertained – the main problem with humanitarian assistance in situations of conflict or disaster remains how to reach the people who are in need. Difficulties to reach those requiring assistance are often not intentional, nor related to a refusal to humanitarian assistance on the part of the territorial State, but are rather a matter of unfortunate circumstances. Looting relief supplies and convoy attacks can make it difficult for aid to reach its intended beneficiaries, fighting often makes it impossible to access an area, sometimes the terrain or meteorological conditions do not allow the passage of relief goods, and in other cases the whereabouts of victims are unknown. In light of this situation, aviation and space activities can potentially contribute in the management and, prior to that, in the prevention of disasters. 10 11

12

I. Kant, Moral and Political Writings, C.J. Friedrich (Ed.), New York, 1949, p. 448. Pope John Paul ii stated: “The conscience of humanity, henceforth backed by measures of international humanitarian law, makes human involvement in situations that seriously jeopardize the survival of peoples and whole ethnic groups obligatory. This is a duty for nations and the international community, as we are reminded by the guidelines proposed at this conference”. Opening of the International Conference on Nutrition, Address of His Holiness Pope John Paul ii, 5 December 1992. “L’exigence que la morale fait naître doit trouver la formulation juridique qui lui permette d’accéder à la reconnaissance” [To be recognised, a moral need must find a legal formulation]. M.-J. Domestici-Met, Aspects juridiques récents de l’assistance humanitaire, afdi, 1989, p. 122.

Introduction

5

Aircraft humanitarian assistance can quickly reach disaster victims, even in the remotest areas. This leads to a need to ascertain whether the Chicago Convention norms, that apply to relief flights, require in all cases prior authorisation of the affected State, and eventually of the overflown transit States.13 Whether space activities – namely remote sensing and satellite telecommunications – can be lawfully used to overcome, at least to some extent, the “barrier” to the delivery of humanitarian assistance represented by State sovereignty is worth verifying. From a different perspective, this study will identify whether States with the most advanced space technologies have specific obligations to cooperate in the prevention and management of disasters, particularly in terms of data sharing. The post-war era, with its rapid technological changes, led to an evolution of State practice. In the name of greater equity and sharing of resources, weaker powers demanded legal constraints over the more technologically advanced States. Such process of accommodation proved difficult. The adoption of the 1967 Outer Space Treaty14 is an example thereof and constitutes the starting point of this research. Indeed, according to this Treaty “the exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries”.15 This rule triggered a lively debate both among States and scholars, and its exact scope will subsequently be better identified. The study will, on one hand, centre on remote sensing activities, recalling the General Assembly Resolution on the Principles Relating to Remote Sensing, thus assessing the correspondence of its most relevant principles to customary law.16 In particular, as far as prevention is concerned, the study will consider the role space technologies may play in rational land use planning (disaster prevention). Whether the sensing State must share the data collected with the sensed State needs verification. Then, in parallel to the analysis conducted in the first part of the study, and based on the results obtained therein, whether a State that has the space technologies to identify an impending disaster has the obligation to issue an early-warning to the potentially affected States. At the same time, whether the Principles of Remote Sensing can be used as a means to interpret the Outer Space Treaty is worth verifying in light of the Vienna Convention on the Law of Treaties. It will be ascertained whether, and to what 13

Convention on International Civil Aviation, signed in Chicago on 7 December 1944, icao Doc.7300/7 (7th ed.–1997), 15 unts 295; entered into force on 4 April 1947. 14 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 unts 205 (entered into force on 10 October 1967) [hereinafter Outer Space Treaty]. 15 Art. i, Outer Space Treaty. 16 unga Resolution A/RES/41/65, Principles Relating to Remote Sensing of the Earth from Space, adopted on 3 December 1986, 95th plenary meeting.

6

Introduction

extent, the Principles of Remote Sensing that are emerging as new norms, but which have still not become accepted as legally binding, may have limited “anticipatory” effects in judicial or arbitral decision-making as supporting arguments to interpret existing international law. On the other hand, when considering the telecommunications used for ­disaster prevention and relief, customary norms are not always clearly identifiable, hence the focus will be on the specific regime developed by the International Telecommunication Union. This study will clarify that international law recognizes the relevance to guarantee urgent rescue in case of disaster. In such case specific norms apply to sensed data which may be useful to affected, or potentially affected States, and to disaster-related telecommunications. The prism of disaster emergency will highlight that, when the lives of human beings are in danger, territorial sovereignty becomes, to a certain extent, porous. It bends in front of the value of human life and the urgency to rescue. The fil rouge of this study, which links the above-mentioned parts, is an attempt to resolve the tension between sovereignty and the need to alleviate the human suffering of a population left to its fate, between solidarity and selfinterest, between the asserted moral obligation to assist and the States’ reluctance to recognize a duty to do so. During an emergency this tension is even clearer. The past decades have witnessed a growing rift in this bipolarity due to the increasing worldwide concern related to disasters. 2

A Premise on the Method

The international law regulating space activities – known as international space law17 – is no longer regarded as an exotic discipline.18 It developed 17

18

“International space law” refers to the public international law of outer space while the broader expression “space law” is generally assumed to include both international law norms as well as national legislations insofar as they deal with the exploration and use of outer space. “While space law may be defined briefly as the law dealing with the legal problems arising out of man’s activities in outer space, the sources of such law may be found both in international and domestic law”. S. Gorove, International Space Law in Perspective – Some Major Issues, Trends and Alternatives, Recueil des Cours, 1983, vol. iii, p. 357; P. Malanczuk, Space Law as a Branch of International Law, in L.A.N.M. Barnhoorn, K.C. Wellens (Eds.), Diversity in Secondary Rules and The Unity of International Law, The Hague-Boston-London, 1995, p. 158; F.G. Von der Dunk, International Space Law, in F.G. Von der Dunk, F. Tronchetti (Eds.), Handbook of Space Law, Cheltenham-Northampton, 2015, pp. 29–30. For the present purpose, national space legislations will be considered as elements of States’ practice. “Need I apologize for my choice of subject? Some may say it belongs to the realm of exotics of law. Some may ask: why deal with issues so remote when there are so many much

Introduction

7

through States’ practice and, above all, owing to the impulse generated by the regulatory process within the United Nations Committee on the Peaceful Uses of Outer Space (uncopuos).19 The core of this work is the combined analysis of both international law rules that regulate disaster prevention and management and those that regulate space activities, which may be relevant to this field. Such broad perspective is generated by the synergy between disaster prevention and response on the ground and the aid provided by space activities. Furthermore, the identification of the legal obstacles that hinder the delivery of humanitarian assistance on the ground may help clarify the role that space activities can or shall play, under international law, to eventually enable overcoming such obstacles. However, and most importantly, the analysis of international law norms that regulate space activities within the broader perspective of international law is a necessary hermeneutic approach. Indeed, since the beginning of the “space age”, international law – or at least its fundamental principles – has been recognized to govern space activities.20

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closer to us still awaiting a solution? Why reach so far?”. With these words, the late Judge Manfred Lachs introduced his 1964 lecture at the Hague Academy of International Law on “The International Law of Outer Space”. M. Lachs, The International Law of Outer Space, Recueil des cours, 1964, vol. iii, p. 7. Shortly after the launching of Sputnik, uncopuos was established as an ad hoc committee by means of unga Resolution 1348 (xiii), Question of the Peaceful Use of Outer Space, adopted on 13 December 1958, and became permanent with unga resolution 1472 (xiv), International Co-operation in the Peaceful Uses of Outer Space, adopted on 12 ­December 1959. This subsidiary organ of the General Assembly, under Article 22 of the UN Charter, has a limited number of members –which has grown from 24 to its current 84. Its internal division, which consists of two sub-committees, the Scientific and Technical Sub-committee and the Legal Sub-committee, was created to link the legislative process of international space law with the rapid advances in technology and science. Other theories soon became obsolete. At the beginning of the “space age”, some authors maintained that, in the absence of special norms regulating space activities, the latter were legibus solutae until special norms would be created. According to this position, the orbit of the Sputnik passed through a legal vacuum beyond any legal regulation. Therefore, the question whether its passage required the consent of the overflown States was deemed meaningless. This position, supported by Soviet authors F.N. Kovalev and I.I. Cheprov, is reported by G. Gal, Space Law, Budapest, 1969, p. 129. In similar terms, E. Pépin maintained that “up to now there is no common legal principle accepted by all the nations of the world with respect to space”, “as there is no legal international rule applicable to the circulation of spacecraft into space, such circulation has been considered as free”. E. Pépin, Space Penetration, Proceedings of the American Society of International Law, 1958, p. 232. See also A.A. Cocca: “En derecho interplanetario no hay otra fuente, stricto sensu, que la doctrina. […] El jurista no tiene aquí otros enlaces que la razón y la naturaleza de las ­cosas”. [In interplanetary law, there is no other source, stricto sensu, than doctrine […] ­Legal scholars can only rely on reason and the nature of things in this respect.] A.A.  ­Cocca, Reflexiones sobre el derecho interplanetario, in Revista de

8

Introduction

Fully in harmony with this general legal opinion, the General Assembly Resolution 1721/xvi recommended that States observe the following principle in the exploration and use of outer space: “international law, including the Charter of the United Nations, applies to outer space and celestial bodies”.21 The General Assembly resolution n. 1962/xviii, in setting out the legal principles that govern space activities, states that: “the activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations”.22 The wording is almost verbatim reiterated by Article iii of the Outer Space Treaty which sets the duty of the States, Parties to the Treaty, to carry on their space activities in accordance with international law, including the United Nations Charter. In turn, Article i of the Outer Space Treaty states that the exploration and use of outer space shall be carried out “on a basis of equality and in accordance with international law”. Thus, the application of international law in outer space has been confirmed in the Outer Space Treaty. However, the norm, like the previous General

21 22

derecho i­nternacional y ciencias diplomaticas, 1958, n. 13, p. 185; E. Sauer similarly emphasised: “Da nun das Völkerrecht diesen Raum bisher nicht gekannt hat, kann es über ihn zunächst keine Aussagen machen. […] Anders verhält es sich mit demjenigen Teil des Völkerrechts, der naturrechtlich fundiert ist” [Since this space has so far been unknown to public international law, it cannot initially make any statements on it. […] The situation is different with that part of international law which is based on natural law]. E. Sauer, Die völkerrechtichle Bedeutung der Sputniks, Jahrbuch für internationales Recht, 1959, p. 36. C. Chaumont argued that the fundamental principles of the international law of outer space are “seulement un certain nombre d’idées qui correspondent à des problèmes qui se posent nécessairement et par conséquent qu’il faudra résoudre tôt ou tard par un droit international de l’espace” [but a number of ideas corresponding to problems that necessarily arise and therefore will sooner or later have to be solved by international space law]. C. Chaumont, Les problèmes de droit international de l’espace extra-atmospherique, Paris, 1958–1959, p. 30. Other authors only conceded the applicability of certain moral norms until such time as the ius ­speciale of space would be enacted. W.H. von Hannover, Staatshoheit und Weltraum, Europa-­Archiv, 1959, p. 167. Finally, while admitting that “some analogies may prove helpful”, others stressed that, by its object and nature, space law was a new and distinct discipline, in which it was not possible to automatically comprehend general and particular principles of international law. Cf. L. Lipson, N. Katzenbach, Report to the National ­Aeronautics and Space Administration on the Law of Outer Space, American Bar Foundation. Legal Problems, 1961, p. 858. In the meantime, however, there was growing belief that the ­assumed lack of norms in outer space was a potential threat to international peace and security. Cf. C. Ward, Space Law as a Way to World Peace. Legal Problems, 1961, p. 447. Resolution 1721 (xvi) International Co-operation in the Peaceful Uses of Outer Space, adopted on 20 December 1961. Resolution 1962 (xviii) Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted on 13 December 1963.

Introduction

9

Assembly resolutions, is of a purely declaratory nature.23 The scope of international law has expanded, following man’s quest to extend his control over nature in order to make it serve his needs. Initially limited to the earth’s surface and to the seas, gradually it extended to encompass the atmosphere and, through telecommunications, reached the ether, up to the cosmic spaces. It is true that outer space is a very different environment from the Earth’s, but when States operate therein, they continue to operate as members of the international community, that is legal entities whose relations are regulated by international law, to the extent it is compatible with special rules enacted for space environment.24 For example, on Earth, when there was still land to discover, international law embodied rules on appropriation. On the contrary, any appropriation in outer space, as including the Moon and other celestial bodies, is excluded.25 Such contradiction, however, is resolved by the principle of lex specialis derogat legi generali. The rules of space law, whether they are part of customary law or treaty law, are ratione loci leges speciales and prevail as such against the leges generales of international law.26 As a consequence, one may well describe space law as a “topic”27 or “branch”28 of international law, where the term “branch”, through an analogy with nature, compares the differentiation of the legal system to the tree whose trunk splits into various extensions and further develops into sub-extensions. At the same time, though this picture can be useful for academic purposes, it 23

I. Brownlie, The Maintenance of International Peace and Security in Outer Space, byil, 1964, pp. 1–2. 24 According to F. Durante, any prescription that space activities shall be carried out in ­accordance with international law is, for this reason, pleonastic. Cf. F. Durante, La codificazione dei principi sull’esplorazione e l’utilizzazione dello spazio extra-atmosferico, in Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago, vol.  ii, Milano, 1987, p. 160. “It would be an absurd idea to conclude that the state of weightlessness will amount to shaking off not only the terrestrial gravitation, but also the legal rules of inter-state relations”. G. Gal, op.cit., p. 131; “Le droit international ne saurait être appliqué aux rapports juridiques nés des activités spatiales que “sous la réserve” des nouvelles règles du droit spatial” [International law can only be applied to legal relationships arising from space activities “subject to” the new rules of space law]. M.G. Marcoff, Traité de droit international public de l’espace, Fribourg-Genève-Paris-New York, 1973, p. 18. See also E. Back Impallomeni, Spazio cosmico e corpi celesti nell’ordinamento internazionale, Padova, 1983, pp. 15–16. 25 Art. ii, Outer Space Treaty. 26 Cf. M. Lachs, The International Law of Outer Space, op.cit., p. 46. 27 Cf. R.Y. Jennings, International Law, Encyclopedia of Public International Law, (Ed.) R. Bernhardt, 1995, vol. ii, pp. 1169–1170; 1173–1174. 28 For the use of the term “branch”, cf. Survey of International Law – Working Paper prepared by the Secretary-General in the light of the decision of the Commission to review its programme of work, A/CN.4/245, yilc, 1971, vol. ii.

10

Introduction

should not lead to the misconception that in the field of space law tout se tient, as if space law were a sort of self-contained regime. This is excluded precisely because, as reiterated, it is not the intention of the States, as it results per tabulas from Article iii of the Outer Space Treaty. This is important when no special rule applies to space activities on a specific issue.29 In the light of the above, general international law will apply. For example, although the 1972 Liability Convention only grants relief for physical damages caused by space objects, compensation claims with regard to illegal broadcasting transmissions may well arise under international law.30 In conclusion, space law bases itself on multilateral treaties, acts of international organisations and specialised customary patterns that are tailored to the needs and interests of the “space” network. However, as emphasized by the International Law Commission, the view-point of a rule or a “regime” alone cannot determine its international legal implications. International law is needed as a framework for coordination and cooperation among rule-complexes and institutions. With international law being a legal system, “its rules and principles […] act in relation to and should be interpreted against the background of other rules and principles”.31 Thus, although space law specialists do not always adequately follow or even note developments in international law, it is inconceivable to study space law and disregard them.32 For this very reason this work cannot ignore, as if it were an “alien intrusion”, what the ilc Report

29

M. Lachs underlines that new inventions related to space activities call for legal regulation. Cf. M. Lachs, Views from the Bench: Thoughts on Science, Technology and World Law, ajil, 1992, p. 690; 695. 30 Convention on International Liability for Damage Caused by Space Objects opened for  signature in Washington, London, and Moscow, 29 March 1972; 24 ust 2389, tias 7762,  961  unts 187, entered into force on 1 September 1972 [hereinafter Liability Convention]. 31 Cf. ilc, Conclusions of the work of the Study Group on the Fragmentation of International Law. Difficulties arising from the Diversification and Expansion of International Law, yilc, 2006, p. 2; see also, B. Simma-D. Pulkowski, Of Planets and the Universe: Selfcontained Regimes in International Law, ejil, 2006, p. 483. 32 On the issue of the increasing specialisation of law making, institution building, and legal practice, which tend to take place with relative ignorance of legislative and institutional activities in the adjoining fields, and of the general principles and practices of international law, see ilc, Fragmentation of International Law. Difficulties Arising From the ­Diversification and Expansion Of International Law, Report of the Study Group of the ilc Finalized by Martti Koskenniemi, Geneva, 1 May–9 June and 3 July–11 August 2006, p. 11.

Introduction

11

on Fragmentation names the “outside world”:33 international law.34 To avoid the danger of an esoteric approach and to preserve the unity of the international system as a whole, this study will integrate research on space law more closely with mainstream international law. 33 34

ilc, Fragmentation of International Law. Difficulties Arising From the Diversification and Expansion Of International Law, op.cit., p. 245. Ibidem, p. 246.

Chapter 1

Disaster Prevention 1.1

A Historical Overview

A traditional perception of natural and man-made disasters as episodic events that require first and foremost limited humanitarian responses by the affected State, and eventually by other States, has delayed the development of international law on disaster prevention and response.1 Indeed, while after the mid-19th century, an international law framework was developed to regulate military conduct in war and humanitarian assistance to war victims, a legal framework for disaster response developed very slowly.2 The international community only became interested in disaster-related issues at the beginning of the twentieth century. Early evidence is provided by the signing of the Convention Establishing an International Relief Union in

1 “The law has grown very slowly, perhaps because earlier generations seldom encountered the same mix of humanitarian needs and means that are spread before us now. That said, it is unlikely that any other challenge looming so large in world affairs has received so little attention in the legal realm”. World Disasters Report. Focus on Public Health. International Federation of Red Cross and Red Crescent Societies. 2000, p. 157. For a historical overview, see also: A. De Urioste, When Will Help Be On the Way? The Status of International Disaster Response Law, Tulane Journal of International and Comparative Law, 2006, pp. 183–186; J. Toman, International Disaster Response Law: Treaties, Principles, Regulations and Remaining Gaps, 2006, available at Social Science Research Network Electronic Paper Collection: http:// ssrn.com/abstract=1312787; World Disasters Report, ibidem, pp. 149–154. 2 World Disasters Report, ibidem, p. 145. At the third International Red Cross Conference in 1884, the American Red Cross called on the Conference to amend the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (Geneva, 22 A ­ ugust 1864) to provide assistance to natural disaster victims. Although the resolution passed, it was never implemented. According to D.P. Fidler “one reason why natural disasters have a different history with international law than wars […] involves the difference between a natural disaster and these other events in terms of the dynamics of the international system. The extensive use of international law in the contexts of war […] reflects how these events, generally speaking, have systemic impact over time on the fundamental material interests that States have in international relations. International humanitarian law developed in response to warfare – a key instrument of State policy in a political system characterized by ­anarchy”. D.P. Fidler, Disaster Relief and Governance after the Indian Ocean Tsunami: What  Role for International Law?, Melbourne Journal of International Law, 2005, Vol. vi, p. 460.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004388369_003

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1927. In the Preamble the Parties declared their willingness and commitment “to further the progress of international law in this field”.3 The Convention mandated the International Relief Union with various tasks, including the co-ordination of international assistance in case of disaster, and encouraging scientific studies on disaster prevention.4 But such centralized approach to disaster relief, in its brief operational existence, proved unsuccessful. In fact, the Union was not engaged in a single major disaster, leading to questioning its actual usefulness. Following the Second World War, Member States used the withdrawal clause to abandon the Union. This led to the closure of the Secretariat in 1982, while its scientific activities, ­focused mainly on studying natural disasters, had already been transferred to unesco.5 This failure on the part of International Relief Union had a significant impact on the development of international law, firstly because the idea of a specific universal treaty that could comprehensively regulate disaster related issues was no longer considered feasible and, as consequence, was postponed sine die. Bearing this in mind, one can understand why the International Red Cross Conference adopted in 1969 the non-binding Principles and Rules for Red Cross Disaster Relief.6 In 1982, the United Nations Institute for Training and Research (unitar), after noting an absence of norms regulating assistance to disaster victims, similar to those for the victims of armed conflicts, started working towards a regulation for post-disaster relief.7 However, after ­proposing several

3 Convention Establishing an International Relief Union, signed in Geneva on 12 July 1927, entered into force on 27 December 1932. League of Nations Treaty Series, 1932, p. 249 (hereinafter Convention Establishing an International Relief Union). 4 Art. 2, Convention Establishing an International Relief Union. 5 Agreement on the Transfer to the United Nations Educational, Scientific and Cultural Organization of Certain Responsibilities and of the Assets of the International Relief Union, 18 December 1968, unts 643. P. Macalister Smith notes that the iru’s failure was due to inadequate funding and its premature expression of universal solidarity aimed at benefiting disaster victims. Cf. P. Macalister Smith, The International Relief Union – Reflections on the Convention Establishing an International Relief Union of July 12, 1927, Legal History Review, 1986, pp. 371–374; A. De Urioste, ibidem, p. 184. 6 Principles and Rules for Red Cross and Red Crescent Humanitarian Assistance, Adopted by the xxi International Conference of the Red Cross (Istanbul, 1969). Cf. J. Toman, Towards a Disaster Relief Law. Legal Aspects of Disaster Relief Operations, in F. Kalshoven (Ed.), Assisting the Victims of Armed Conflict and Other Disasters, Dordrecht-Boston-London, 1989, p. 183. World Disasters Report, op.cit., p. 149. 7 Cf. J. Toman, Towards a Disaster Relief Law. Legal Aspects of Disaster Relief Operations, op.cit., p. 188.

14

Chapter 1

solutions, unitar concluded that the most realistically feasible u ­ ndertaking would be to conclude bilateral agreements. To this end, it issued a set of model rules for bilateral agreements to regulate disaster relief operations.8 Reluctance once again emerged when the 1984 undro Draft Convention on Expediting the Delivery of Emergency Assistance was not adopted.9 The tendency is still to regulate fragmentarily each and every specific issue involved at the regional, sub-regional or, more frequently, bilateral level. However, regional or bilateral systems are not self-sufficient in the case of “mega” disasters, and the effectiveness of such instruments is difficult to prove, given the limited number of ratifications or their substantial non-use.10 Bilateral treaties mainly concern the exchange of information and good practices, while rarely addressing the issue of assistance. They are mainly inspired by political-diplomatic motivations rather than by concrete operational purposes, as seen by the numerous agreements between geographically very distant States.11 Furthermore, in areas such as Oceania and Africa such treaties are absent. Universal open agreements have been adopted very rarely to deal with specific types of disasters12 or forms of assistance.13 However, such agreements obtained only few ratifications.14 A tendency also emerged to include ad hoc rules prescribing the specific duties for States in the event of a natural or man-made

8

9 10

11 12 13 14

Model Rules for Bilateral Agreement Between an Assisting State and a Receiving State, unitar, 1982. Cf. Y. Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations: The Right and Duty to Humanitarian Assistance, Dordrecht, 1991, p. 375. Draft Convention on Expediting the Delivery of Emergency Assistance, UN Doc. A/39/267/ Add.2-E/1984/96/Add.2, 18 June 1984. The Inter-American Convention to Facilitate Disaster Assistance only has 6 States Parties (concluded in Santiago, Chile, on 7 June 1991, entered into force on 16 October 1996). For the difficulties to implement the Arab Cooperation Agreement Regulating and Facilitating Relief Operations, cf. ifrc, Law and Legal Issues in International Disaster Response: A Desk Study, Geneva, 2007, p. 79. Agreement Between the Republic of Austria and the Hashemite Kingdom of Jordan on Mutual Assistance in the Case of Disasters or Serious Accidents (Amman, 13 March 2004). Convention on Assistance in the Case of a Nuclear Accident Or Radiological Emergency (Vienna, 26 September 1986); Convention on the Transboundary Effects of Industrial ­Accidents (Helsinki, 17 March 1992). Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (Tampere, 18 June 1998), unts vol. 2296, p. 5 [hereinafter Tampere Convention]. The Tampere Convention has been so far ratified by 48 States.

Disaster Prevention

15

disaster in universal treaties regulating other issues such as human rights,15 health,16 custom duties,17 and transport of goods by sea18 or air.19 Several aspects of disaster prevention, management and recovery were regulated rapidly, often due to the alarm raised by specific disasters.20 To a certain extent the multifaceted legal and institutional response seems to mirror the fortuity of the disasters humanity encounters.21 Against this multifaceted background the International Law Commission adopted, on second reading, a set of draft articles that specifically deal with the “Protection of Persons in the Event of Disasters”.22 Such Draft Articles are not only important for their content. The International Law Commission also recommended that the General Assembly elaborates a convention on their basis.23 In this regard the International Law Commission has adopted a different attitude compared to past trends merely recommending the adoption of tools such as guidelines or recommendations. Indeed, since the 1990s, only on one 15 16 17 18 19

20

21

22 23

Art. 4 of the 1966 International Covenant on Civil and Political Rights, adopted and opened for signature, ratification, and accession by unga resolution 2200° (xxi) of 16 December 1966. who, International Health Regulations, 2005. Specific Annex J, Chapter 5 (Relief Consignments), Protocol Of Amendment To The International Convention on the Simplification and Harmonization of Customs Procedures of 18 May 1973, Brussels, 26 June 1999. Section F of the Convention on Facilitation of International Maritime Traffic, London, 9 April 1965, standard 5.11; 5.12 (now 7.8; 7.9). Letter C of Chapter 8 (Relief flights following natural and man-made disasters which seriously endanger human health or the environment, and similar emergency situations where United Nations (UN) assistance is required) of International Standards and Recommended Practices, Facilitation, Annex 9 to the Convention on International Civil Aviation, Twelfth Edition, July 2005. International treaties are often stipulated ad hoc after the occurrence of a specific disaster in order to regulate post-disaster assistance. See, for example, the Agreement for the Provision of the Technical Cadre Unit of the Swedish Stand-by Force for United Nations Service to Assist in Reconstruction of Areas in Peru devastated as a result of the earthquake which occurred on 31 May 1970. Signed at United Nations Headquarters, New York, on 29 July 1970. See D.D. Caron, Preface, in D.D. Caron, M.J. Kelly, A. Telesetsky (Eds.), The International Law of Disaster Relief, Cambridge, 2014, p. xx; I.B.R. Supancana, International Disaster Response Law, Rules and Principles (idrl) Programme of the International Federation of Red Cross and Red Crescent Societies (ifrc), Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007, p. 748; V. Balakista Reddy, D. Banerjee, The Disaster Charter: Formulating a Common Space Policy for the Asian Region, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007, p. 17. Draft Articles of the ilc on the Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/L.871, ilc, Sixty-eighth session, Geneva, 2 May–10 June and 4 July–12 August 2016. UN Doc. A/71/10, 2016, par. 46.

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Chapter 1

occasion did the International Law Commission suggest the conclusion of a treaty,24 while in a few other cases it asked the General Assembly to take note of the text and evaluate such solution “at a later stage”.25 The choice is however consistent with International Law Commission’s approach to the Draft Articles, which have the “look and feel” of a treaty,26 abounding in formulations such as “shall” rather than “should”. Moreover, when the International Law Commission wishes draft articles to be adopted as a treaty, it generally includes a preamble, as in this case.27 In light of the above described existing legal framework, elaboration of the Draft Articles could hardly be limited to a traditional codification task, based on “extensive State practice, precedent and doctrine”.28 By putting this topic on the agenda, the International Law Commission highlighted that this was one of the “new developments in international law and pressing concerns of the international community as a whole”, also considering the growing demands from the disaster relief community for its systematization.29 The International Law Commission was well aware that it was mainly embarking on an exercise de lege ferenda.30 The preamble to the Draft Articles underscores the General Assembly’s role in encouraging a progressive development of international law and its codification in relation to disasters. Moreover, the International Law Commission’s commentary to that clause indicates that it “serves, at the outset, to highlight the fact that the draft articles contain elements of both progressive development and codification of international law”.31 Thereafter, however, 24 25

26 27 28 29 30

31

Draft Articles on Diplomatic Protection, UN Doc. A/61/10, 2006, par. 46. See the Draft Articles on: State responsibility (UN Doc. A/56/10, 2001, paras 72–73); Law of Transboundary Aquifers (UN Doc. A/63/10, 2008, par. 49); Responsibility of International Organizations (UN Doc. A/66/10, 2011, par. 85); Effects of Armed Conflicts on Treaties (UN Doc. A/66/10, 2011, par. 97). This expression is used by Caron with respect to the Draft Articles on State responsibility, cf. D.D. Caron, The ilc Articles on State Responsibility: The Paradoxical Relationship between Form and Authority, ajil, 2002, p. 862. Draft Articles on the Law of Transboundary Aquifers, UN Doc. A/63/10, 2008, par. 53. Statute of the ilc, 1947, Art. 15. Report of the ilc on the work of its 58th session (1 May to 9 June and 3 July to 11 August 2006) UN Doc. A/61/10, annex C, par. 1. J. Benton Heath emphasises that any efforts to establish clear rules in this area will require a drafter to engage in progressive development of the law rather than strict codification of existing customs. Cf. J. Benton Heath, Disaster, Relief and Neglect: the Duty to Accept Humanitarian Assistance and the Work of the International Law Commission, International Law and Politics, vol. 43, 2011, p. 424. UN Doc. A/71/10, par. 49. According to S.D. Murphy the ilc recommended, in accordance with Art. 23 of its Statute, that the General Assembly elaborates a convention on the basis of the Draft Articles perhaps because of a belief that significant aspects of the Draft

Disaster Prevention

17

the commentary does not distinguish between elements that are progressive development or codification. Thus, the extent the Draft Articles are intended to restate customary international law or, rather, to advance the preferences of the International Law Commission as to what the law should be, remains unspecified. 1.2

What Is a “Disaster” of International Significance?

The notion of “disaster” in itself is difficult to identify. There is no universal flagship treaty that influences the terminology used in other instruments, and the technique used to draft the existing treaties strives to encourage above all the provision of humanitarian assistance. For instance, some treaties regulating disaster early-warning or post-disaster assistance, do not at all contemplate a provision that defines the term “disaster” and, therefore, their material scope, as in the case of the 1991 Inter-American Convention to Facilitate Disaster Assistance.32 The concrete operation of other treaties depends on an independent assessment on the part of the State Party concerned in identifying the disaster. For example, the 2004 Agreement between Argentina and Peru, after providing some examples, further specifies that a disaster is any event qualified as such by the Party requesting assistance (Article 1, paragraph 1, states: “todo hecho así calificado por la Parte que requiera la asistencia”).33 The International Law Commission, in its Draft Articles on Protection of Persons in the Event of Disasters, offers a definition of disaster which is worth focusing on. Although its primary function is to limit the scope of application of the Draft Articles, it will probably have an impact on future international practice, potentially becoming a benchmark in this domain. The International Law Commission’s definition reiterates similar definitions contained both in treaties and non-binding instruments, when it describes disaster as “a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale

32 33

­ rticles represent a progressive development of the law. Cf. S.D. Murphy, Protection of PerA sons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission, ajil, 2016, p. 719. Inter-American Convention to Facilitate Disaster Assistance, concluded in Santiago, Chile, on 7 June 1991, entered into force on 16 October 1996, available at http://www.oas .org/juridico/english/treaties/a-54.html. Agreement between the Republic of Argentina and the Republic of Peru on Cooperation in relation to Disasters of 11 June 2004.

18

Chapter 1

­ aterial or environmental damage” and then goes on specify: “thereby serim ously disrupting the functioning of society”.34 The Commentary to Draft Article 3 rules out from the definition of disaster “other serious events, such as political and economic crises, which may also undermine the functioning of society”.35 An excessive indeterminacy would otherwise derive from a definition encompassing “financial, ‘natural’ and ‘man-made’ events (including armed conflict)”.36 Differently from several international instruments which exclusively deal with natural, or with man-made disasters, no limitation is included on the origin of the event.37 Furthermore, reference to “a series of events” might include small-scale disasters that, when taken individually, do not meet the definition set by the text. Beyond any doubt the Draft Articles apply to sudden-onset disasters, such as an earthquake or tsunami, which develop in a very short timeframe and require a response in a unique and high pressure emergency environment in order to save as many lives as possible. On the contrary, explicit reference to an “event” or to a “series of events” in the definition could lead to the exclusion of slow-onset disasters, such as drought or sea-level rise from the Draft Articles

34

Draft Art. 3 (a) (Use of terms). The 1998 Tampere Convention similarly states that disaster is “a serious disruption of the functioning of society, posing a significant, widespread threat to human life, health, property or the environment, whether caused by accident, nature or human activity, and whether developing suddenly or as the result of complex, long-term processes”. Art. 1 (6) Tampere Convention. The wording is reiterated almost verbatim in the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance. Resolution 4, Adoption of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial ­Recovery Assistance, 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007. The United Nations Development Program (undp) and the United Nations Disaster Relief Office (undro) subsequently outlined the definition of disaster as “a serious disruption of the functioning of a society, causing widespread human, material, or environmental losses which exceed the ability of the affected society to cope using only its own resources”. undp/undro, An Overview of Disaster Management, Disaster Management Training Programme, 2nd Edition, 1992, p. 14. Annex 9 to the Convention on International Civil Aviation recalls this same definition of disaster. See Annex 9, Chapter 8, letter C, standard 8.8, note 1. Finally, an almost identical definition can be found in http://www .unisdr.org/we/inform/terminology. 35 UN Doc. A/71/10, Commentary to Draft Art. 3 (Use of terms), par. 2. 36 This broad definition is proposed by S.C. Breau, K.L.H. Samuel, Introduction, in S.C. Breau, K.L.H. Samuel (Eds.), Research Handbook on Disasters and International Law, Cheltenham-Northampton, 2016, p. 3. 37 See infra par. 1.3.

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19

because they are not triggered by an “event”, nor by a “series of events”. There is no clear “day one” and often they result from structural problems. The Commentary, however, specifies that Draft Articles apply equally to sudden-onset events and to slow-onset events.38 Slow and sudden-onset disasters naturally require different management methodologies when addressing the event. In particular, slow onset disasters may require a more active involvement on the part of planners, especially in terms of monitoring and early warning systems. In spite of the International Law Commission’s focus on the protection of persons, the proposed definition of disaster comprises calamitous events which do not cause death, but only provoke destruction or loss of goods, or property or environmental degradation. As can be inferred from the disjunctive construction, the occurrence of such events is not necessarily cumulative. The necessary condition is, in any case, that the functioning of the affected society is seriously disrupted. Consequently, any event affecting several States at the same time,39 or involving grave human and natural transboundary effects, is undoubtedly a disaster of international significance.40 But it is not the only one. If a domestic catastrophe of great magnitude seriously disrupts the functioning of a society, the disaster can be considered one of international significance, although it has no transboundary effects. In considering the requirement related to “seriously disrupting the functioning of society”, it can be deduced that the evaluation of the disaster shall focus on the event’s repercussions on the affected society, rather than on its intensity. The more unprepared and ill-equipped States in dealing with the consequences of an event, the easier it will be for it to take on proportions of international significance. Many emergencies in fact reflect the underlying development crisis experienced by developing countries.41 A phenomenon can cause a public emergency in a State that is highly vulnerable, while in others that have adopted preventive measures, the negative impact of such calamities

38 39 40

41

Commentary to Draft. Art. 3 (Use of terms), par. 4. Nowhere was this more evident than with the tsunami of 26 December 2004, which killed approximately 240,000 people in 12 States. One may think of the transboundary effects a nuclear or environmental disaster may have also in terms of massive flows of refugees, or the spread of a disease, where the unwillingness of the State of origin to cooperate could contribute to jeopardising the lives of both its own population and that of neighbouring States. On the legal issues arising from the displacement of people caused by disasters, see R. Cohen, M. Bradley, Disasters and Displacement: Gaps in Protection, International Humanitarian Legal Studies, 2010, pp. 95–142. unga Resolution 46/182 Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, adopted on 19 December 1991, par. 10.

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Chapter 1

is limited.42 For example, in regions frequently prone to earthquakes, buildings constructed to withstand most seismic events can be built. The interpretation of the requirement “seriously disrupting the functioning of society” can lead to different solutions on the issue of threshold that enables the application of an international instrument which foresees such requirement. For example, different assessments arise when the term “society”, whose functioning is seriously disrupted, is considered equivalent to a national community as a whole or to a community living in narrower territorial areas, directly affected by the event. The latter scenarios are analysed and described as “disasters” by the European Court of Human Rights, in cases where Member States were challenged to have violated positive obligations related to the right to life, because they did not take adequate preventive measures against events such as floods or landslides, which affected a small community, thus causing a little number of victims in a limited territory.43 Unless the term “society” refers solely to the community living in the area affected by the disaster, such cases are unlikely to fall within the International Law Commission’s definition of disaster. It seems, however, that the vagueness of the term “society”, used in the Draft Articles, can be clarified when the definition of disaster is coordinated with Draft Article 10 stating the primary responsibility of the affected State in the management of humanitarian assistance,44 and with Draft Article 11, which contemplates a duty upon the affected State to seek external assistance “to the extent that a disaster manifestly exceeds its national response capacity”.45 42

43 44 45

Cf. C. Leben, Les aspects internationaux des catastrophes naturelles et industrielles / Académie de Droit International de La Haye = The International Aspects of Natural and Industrial Catastrophes / Hague Academy of International Law, in D.D. Caron, C. Leben (Eds.), The Hague, 1995, p. 25. echr, Budayeva and others v. Russia, Application n. 15339/02, decision of 20 March 2008; echr, Kolyadenko and others v. Russia, application n. 17.423/05, decision of 28 February 2012. Draft Art. 10 (Role of the affected State). Emphasis added. Draft Art. 11 (Duty of the affected State to seek external assistance). Similarly, according to Art. 3 (2) of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance: “if an affected State determines that a disaster situation exceeds national coping capacities, it should seek international and/or regional assistance to address the needs of affected persons (emphasis added)”. See also Art. 2 of the Arab Cooperation Agreement Regulating and Facilitating Relief Operations. Arab League Decision No. 39, dated 3 September 1987: “The Agreement shall cover organizing and facilitating relief actions between Member States in disaster and emergency situations in which individual Member States may fail to respond singlehandedly to such situations”. Interestingly enough this requirement was already contained in the 1927 Convention Establishing an International Relief Union: “In the event of

Disaster Prevention

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These draft articles codify in parte qua general international law. In virtue of the principles of sovereignty and non-intervention, when the society whose functioning is seriously disrupted is the local community, and the State has sufficient resources to cope with it, the disaster in principle remains within its domestic jurisdiction.46 This is confirmed in the Commentary which specifies that “the requirement of serious disruption of the functioning of society serves to establish a high threshold”.47 This is the case, unless the international agreement at stake has a different scope of application. Some agreements use both terms “community” and “society”, as the saarc Treaty48 or the asean Treaty.49 Both their Articles 1 refer to disasters that cause “serious disruption of the functioning of a community or a society”.50 Other agreements, on the contrary, are more specific, referring expressly to the affected local communities. They therefore prompt a broad interpretation of situations that can be qualified as a disaster. This is the case of Article 1 of the 1998 Treaty of Assistance Between France and Malaysia, which refers to a disaster “ayant des repercussions sur les activités des collectivités locales”.51

46 47 48 49 50

51

any disaster due to force majeure, the exceptional gravity of which exceeds the limits of the powers and resources of the stricken people, to furnish to the suffering population first aid (emphasis added)” Art. 2, Convention Establishing an International Relief Union, signed in Geneva, 12 July 1927, League of Nations Treaty Series, 1932, p. 249. On the concept of sovereignty, see A. Miele, L’indipendenza degli Stati, Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Napoli, 2004, pp. 169–190. See further infra par. 2.1. Commentary to Draft Art. 3 (Use of terms), par. 10. saarc Agreement on Rapid Response to Natural Disasters, Addu, 11 November 2011. asean Agreement on Disaster Management and Emergency Response, Vientiane, 26 July 2005. The reference to both “community” and “society” is also contained in the definition of disaster offered by the Report of the open-ended intergovernmental expert working group on indicators and terminology relating to disaster risk reduction, (A/71/644, 1 December 2016, p. 13), which was then endorsed by the General Assembly. Cf. unga resolution 71/276, adopted on 2 February 2017, par. 2. See also Art. 5 (2) of the Protocolo adicional al acuerdo marco sobre medio ambiente del mercosur en materia de cooperación y asistencia frente a emergencias ambientales: “Cuando la capacidad local de respuesta a la emergencia con los medios y recursos locales existentes en el propio territorio sea excedida, las autoridades competentes de dicho territorio, mediante el empleo del formulario que consta en Anexo del presente Protocolo, comunicará a través del Punto Focal a las otras y solicitará, cuando fuera el caso, el tipo de asistencia que resulte necesaria” [When the local capacity to respond to an emergency with local means and resources existing within the territory itself is exceeded, the competent authorities of that territory shall inform others via the Focal Point using the form in the Annex to this Protocol, and request the type of assistance required where appropriate.]

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In general, however, the inclusion of a “serious disruption of the functioning of a society” into the definition of “disaster”, makes the latter excessively limited, as it would rule out catastrophic events which occur in uninhabited spaces where no society exists whose functioning is likely to be seriously compromised. This applies either in the case the event occurs in inhabited areas under a State’s jurisdiction, or in the case of inhabited common spaces. Consider, for instance, explosions in outer space due to the collision of two space objects or to the destruction of a space object through anti-satellite weapons. Unavoidably both would generate a spread of space debris in outer space.52 In this case, no society is susceptible to being seriously compromised. But, at the same time, the entire international community may be affected, both in terms of subsequent limitation of potential future uses of orbits, which are limited natural resources,53 and in terms of hazard to a spacecraft, which may risk a catastrophic collision even with small space debris. It is no exaggeration to claim that the spread of space debris on the orbits around the earth may prevent or hinder the successful launch of a spacecraft, and thus reduce the chances of exploring outer space. Can we really say that such events are not disasters simply because no society is directly affected? One should also consider the indirect long-term damaging consequences of an event.54 Environmental protection must also be taken into account in tandem with disaster management, whatever the nature of the disaster. This is clearly 52 53 54

In 2008, for example, the United States intentionally destroyed the usa-193 satellite which was at an altitude of some 250 km. Art. 44, itu Constitution. See infra par. 5.4. C. Leben specifies that, in order to be considered a disaster, an event needs to have at least potential long-term effects on human beings. “Nous n’irions pas jusqu’à dire cependant, en ce qui nous concerne, que ce dommage écologique est sans rapport avec toute considération de l’être humain: une île déserte qui sombre au milieu de l’océan sous l’effet d’une irruption volcanique, ou une étoile qui disparaît dans des galaxies lointaines, ces événements ne sont guère ressentis comme des catastrophes pour autant qu’ils ne semblent avoir aucune conséquence à court ou à long terme sur la vie humaine. S’agissant de la préoccupation que l’on montre pour l’intégrité de la nature c’est bien, selon nous, la nature en tant qu’elle “environne” l’homme, en tant qu’elle est susceptible d’avoir des effets bénéfiques ou maléfiques pour l’homme, qui est prise en compte” [However, as far as we are concerned, we would not go so far as to say that this ecological damage is without connection to the human being: a desert island that sinks in the middle of the ocean under the effect of a volcanic eruption, or a star that disappears in distant galaxies, these events are hardly conceived as disasters as long as they do not seem to have any short or long-term consequences on human life. With regard to the concern for the integrity of nature, in our view, nature is taken into account in so far as it “surrounds” man, in so far as it is likely to have beneficial or maleficent effects on humans]. C. Leben, Les aspects internationaux des catastrophes naturelles et industrielles, op.cit., pp. 23–24.

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e­ vident when considering global warming, which is accompanied by devastating effects in terms of slow-onset disasters such as desertification, along with sudden disasters – such as hurricanes and flooding. This relationship often does not receive the attention it deserves. On the one hand, environmental treaties focus on the protection of the environment, irrespective of any damage to property or to the local population. On the other hand, several treaties on disaster prevention and response are only applicable in case of actual or potential damage to human beings or to their property. The threat or damage to the environment per se is not contemplated as a sufficient prerequisite for the application of the treaty. When no society is likely to be affected, the Draft Articles similarly exclude severe damage to the environment from being qualified as a disaster. In order to guarantee the highest level of protection to humans and the environment, the above-mentioned prerequisites for the application of the various sets of conventions should be overcome.55 Similarly, to accord an intrinsic value per se to the environment, the requirement of serious disruption of the functioning of society should be removed from the Draft Articles. Disaster definition should focus exclusively on the damaging effects an event produces. Alternatively, the requirement of serious disruption to the functioning of a society should be kept, while a separate definition of disaster should contemplate the case in which risk or damage affect the environment, without any further requirements.56

55 56

Cf. A. Telesetsky, Overlapping International Disaster Law Approaches with International Environmental Law Regimes to Address Latent Ecological Disaster, Stanford Journal of International Law, 2016, pp. 183–184. See, as an example of this drafting technique, the 2000 Framework-Convention on Civil Defense Assistance, which defines a disaster as “an exceptional situation in which life, property or the environment may be at risk (emphasis added)”. The Agreement by and between the Government of the Finnish Republic and the Government of the Russian Federation about co-operation to avert disasters and to prevent their consequences, specifies that “a disaster is understood to be an industrial accident, an explosion, a fire, a cave-in, an earthquake, a flood, or another comparable event or natural catastrophe, which causes or may cause injury or damage to people, property or the environment (emphasis added)”. Art. 1 (Definitions) Agreement by and between the Government of the Finnish Republic and the Government of the Russian Federation about Co-Operation to Avert Disasters and to Prevent their Consequences, Helsinki, 4 August 1994. See also the definition of disaster contained in the Agreement between the Governments of the Participating States of the Black Sea Economic Cooperation (bsec) on Collaboration in Emergency Assistance and Emergency Response to Natural and Man-made Disasters as “an event in a definite area that has occurred as a result of an accident, hazardous natural phenomena, catastrophe, natural or man-made, which may or have caused significant physical, social, economic and cultural damage to human lives or environment (emphasis added)”.

24 1.3

Chapter 1

Natural and Man-Made Disasters

International instruments generally distinguish between natural and manmade disasters.57 The United Nations General Assembly Resolution on Principles Relating to Remote Sensing of the Earth from Outer Space, for example, contemplates two distinct provisions: one addressing “natural disasters”,58 and the other “any phenomenon harmful to the Earth’s natural environment”.59 The International Charter on Space and Major Disasters reads the term crisis as “the period immediately before, during or immediately after a natural or technological disaster”.60 While the notions of natural and man-made disaster are not specified by the aforesaid international instruments, this distinction needs to be made. Indeed, since its interest in disaster-related issues, the international community has started perceiving and regulating disasters differently.61 Acknowledgment of the principle of prevention in international law, in the second half of the twentieth century, firstly inspired legislation at the international level in relation to man-made disasters.62 In 2001, for example, 57

“Industrial disasters” or “technological disasters” are terms which are often used as synonyms for “man-made disasters”. 58 Princ. xi. 59 Princ. X. 60 For the text of the International Charter on Space and Major Disasters, see http://www .disasterscharter.org/charter. See also the Treaty on the Functioning of the European Union (tfeu), which, in its Art. 196 (placed under Title xxiii – Civil Protection), refers to “natural or man-made disasters”. Resolution 61/110 establishing the United Nations Platform for Space-Based Information for Disaster Management and Emergency Response (UN-SPIDER) also specifies that the term “disaster” used in the text of the resolution must refer “to natural or technological disasters”. unga Resolution 61/110, United Nations Platform for Space-Based Information for Disaster Management and Emergency Response, adopted on 15 January 2007, footnote n. 1. 61 According to D.P. Fidler, man-made disasters have a different history within international law than natural disasters, because “increasing industrialization and use of hazardous technologies in modern economies produced greater potential for transboundary pollution and friction between States affected by such pollution. By contrast, natural disasters have, historically, proven episodic, short-lived events that did not systemically affect State interactions in the manner that war, trade and technological development did”. D.P. Fidler, op.cit., pp. 460–461. 62 On the difference between prevention and precaution, see C. Leben: “D’un côté, donc, la prévention vise à se protéger de risques probables, de l’autre la précaution cherche à éviter des risques plausibles” [On the one hand, prevention aims at protecting from probable risks; on the other, precaution seeks to avoid plausible risks]. C. Leben, op.cit., p. 57. S. Marchisio underlines that the principle of prevention is the necessary corollary to the precautionary principle: “prevenire significa infatti evitare il danno ambientale alla fonte,

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the International Law Commission adopted a set of draft articles addressing man-made disasters, not natural disasters, the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.63 International treaties on early warning and mutual assistance almost exclusively addressed man-made disasters.64 This can be explained by bearing in mind that, under customary law, each State must ensure that activities within its territorial jurisdiction, or under its control, do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.65 Arguably, the interest of States to regulate the prevention of and the response to man-made disasters originally stemmed therefrom. States are therefore not precluded from carrying out activities that are not prohibited by international law, even if such activities may cause a transboundary harm. But their freedom of action is not unlimited. They shall undertake appropriate prevention measures and may be called to pay the damages suffered by other States, as a result of an activity, even if it is characterized as lawful.66 This does not mean that prevention measures cannot be adopted against natural disasters. Natural disasters such as earthquakes or hurricanes may well fall within the definition of “irresistible force” or “unforeseen event, beyond the control of the State”67 and, in principle, the State from where such disasters develop cannot be held internationally responsible for the damage that may spread to neighbouring countries.

con misure correttive adeguate, prima che si realizzi” [In fact, prevention means avoiding environmental damage upstream through appropriate corrective measures before it occurs]. S. Marchisio, Gli atti di Rio nel diritto internazionale, rdi, 1992, p. 611. 63 See Art. 1 of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with commentaries. Text adopted by the ilc at its fifty-third session in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/56/10). The report appears in the YILC, 2001, vol. ii, Part Two. 64 C. Leben points out that, concerning natural disasters “on trouve peu de chose, dans les relations bilatérales et encore moins, semble-t-il, dans les relations multilatérales […] la coopération internationale relève ici essentiellement de l’action des organisations internationales et avant tout de celles du système des Nations Unies” [little can be found in bilateral relations and even less, it seems, in multilateral relations […] international cooperation here is essentially the responsibility of international organisations, and especially of those of the United Nations]. C. Leben, op.cit., p. 69. 65 Cf. P. Birnie, A. Boyle, C. Redgwell, International Law and the Environment, Oxford, 2009, p. 137. 66 See infra par. 1.4. 67 Art. 23 (Force majeure), Draft Articles on Responsibility of States for Internationally Wrongful Acts.

26

Chapter 1

However, some natural disasters can be mitigated, if not prevented.68 The European Court of Human Rights found that some Member States violated positive obligations in relation to the right to life because they had not taken adequate preventive measures against flood or landslide events.69 In the 2013 Sixth Report, the Special Rapporteur coherently refers to the “principle of prevention” as a “principle of international law” and grounds the positive duty to prevent in the broader duty to protect the environment and human rights, as set out in treaties and international jurisprudence.70 In line with such developments, recently adopted instruments embody a more encompassing approach. While the UN General Assembly, in dealing with disaster assistance, initially focused on natural disasters,71 afterwards it started to refer to both “natural disasters and other emergencies”.72 The ­Review of the Yokohama Strategy and Plan of Action for a Safer World recalls the 68

69

70 71 72

It has been stated that, in contrast to man-made disasters, “les catastrophes naturelles ne donnent pas lieu à une mise en jeu d’une responsabilité civile” [Natural disasters do not give rise to civil liability]. C. Leben, op.cit., p. 82. This position, however, in its absoluteness, cannot be accepted. As long as national authorities fail to adopt the necessary and feasible prevention and mitigation measures, a civil liability may arise also in case of natural disasters, in particular when a State’s negligence has resulted in violations of the right to life. On 21 December 2011, the victims of the flood that struck Thailand in November 2011 initiated proceedings against national authorities before the Central Administrative Court because, although the government had enacted the 2007 Disaster Prevention and Mitigation Act, it “failed to enforce it for the flood-prevention and flood-relief operations”. See also: http://www.nationmultimedia.com/national/Hundreds-of-victims-suepremier-govt-officials-ove-30172332.html In Italy, after the earthquake which hit the city of L’Aquila in 2009, criminal proceedings including compensation claims were instituted against the members of the Commission which had been called upon to evaluate the earthquake risk. See also: I. Nifosi-Sutton, Contour of Disaster Victims’ Rights to a Remedy and Reparation Under International Human Rights Law, in A. De Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012, pp. 415–440. echr, Budayeva and others v. Russia, Application n. 15339/02, decision of 20 March 2008; echr, Kolyadenko and others v. Russia, application n. 17.423/05, decision of 28 February 2012. See also: infra in this paragraph and, on the issue of positive obligations, J-F. Akandji-Kombe, Positive Obligations Under the European Convention on Human Rights. A Guide to the Implementation of the European Convention on Human Rights. Human Rights Handbooks n. 7, Strasbourg, 2007. Sixth report on the protection of persons in the event of disasters by Eduardo ValenciaOspina, Special Rapporteur, A/CN.4/662, paras. 42–53. unga Resolution 2034 (xx), Assistance in Cases of Natural Disaster, adopted on 7 December 1965. unga Resolution A/RES/46/182, Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, 78th plenary meeting, adopted on 19 ­December 1991.

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“interaction between natural and human-induced hazards”73 and, consistently, the importance of a whole-of-risks approach. In the same manner the Preamble of the Hyogo Framework for Action 2005–2015 shifts to a holistic concept of disaster which encompasses disasters caused by hazards of natural origin and technological hazards.74 The scope of the Draft Articles on Protection of P ­ ersons in the Event of Disasters was initially focused on natural disasters or natural disasters components of broader emergencies because “the more immediate need may be for a consideration of the activities undertaken in the context of a natural disaster”.75 However, since the need for protection is equally strong in all disaster situations, the scope of the Draft Articles was then extended to both categories of disasters, armed conflicts being the sole exception.76 The above tendency cannot be ignored and may lead to the conclusion that consolidated customary norms, applicable to man-made disasters, also apply to natural disasters. Yet, this conclusion cannot be axiomatically taken for granted. Since the aforesaid instruments emphasize the growing trend, and the need, to deal with both natural and man-made disasters as a unicum genus, they further prove that this has not been the case so far. Some international instruments solely apply either to man-made disasters or to natural disasters. In relation to life-threatening risks, according to the European Court of Human Rights, the scope of positive obligations a State has in particular circumstances depends on the origin of the threat, its foreseeability as well as on potential mitigation.77 More stringent requirements for man-made hazards, such as dangerous industrial activities, are needed.78 This makes it even more important to clarify and distinguish the two categories.

73 74 75 76 77 78

United Nations, World Conference on Disaster Reduction, Review of the Yokohama Strategy and Plan of Action for a Safer World, op.cit., p. 10. Preamble of the Hyogo Framework for Action 2005–2015 adopted at the World Conference on Disaster Reduction held at Kobe (Hyogo) 18–22 January 2005, UN doc. A/CONF.206/6, p. 1. UN Doc. A/61/10, annex C, par. 2. UN Doc. A/CN.4/598 par. 49. echr, Budayeva and others v. Russia, op.cit., paras. 136–137. echr, Ӧneryildiz v. Turkey, application no. 48939/99, decision of 30 November 2004, par. 90. In the Court’s view, natural hazards in principle remain “beyond human control”, unless “the circumstances of a particular case point to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use”. echr, Budayeva and others v. Russia, op.cit., paras. 135, 136, 137 and 174; Hadzhiyska v. Bulgaria, application n. 20701/09, decision of 15 May 2012, par. 15.

28

Chapter 1

undp and undro specified that a disaster is man-made when “the principal, direct cause(s) are identifiable human actions, deliberate or otherwise”,79 while the notion of “natural disaster” is often explained, in international instruments, through examples: the Preamble of the 2005 Second Tunis Declaration recalls “with distress that the crtean [Centre Régional de Télédétection des États de l’Afrique du Nord] Member States are exposed to natural disasters such as earthquakes, flooding, forest fires, desertification, drought and locust attacks”.80 Since the two categories man-made/natural disasters constitute a summa divisio, the notion of “natural disaster” can be elaborated a contrario from the definition of man-made disaster.81 As such, it may include disasters originating from the fall of meteorites on the Earth’s surface,82 and disease spread (such as aids or Ebola), although the transmission occurs through human beings.83 Establishing a clear-cut distinction between natural and man-made disasters may be practically and logically difficult. The difficulty to categorize such disasters led to the adoption of the previously mentioned “more holistic 79 80

81

82 83

undp/undro, An Overview of Disaster Management, op.cit., p. 21. The text of the Second Declaration adopted in Tunis on 27–28 April 2005 can be found in SP 2006, pp. 214–215. The same drafting technique is followed by Art. 1 (2) (Definitions) of the Bruges Resolution on Humanitarian Assistance (Institute of International Law, Bruges Session, 2003), and by the Arab Cooperation Agreement Regulating and Facilitating Relief Operations. Arab League Decision No. 39, dated 3 September 1987; The saarc Agreement on Rapid Response to Natural Disasters contains a definition of “natural disaster”, which is however tautological, as “a natural hazard event causing serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources”. Art. 1 (3) (Definitions) saarc Agreement on Rapid Response to Natural Disasters, Addu, 11 November 2011. D.D. Caron defines “natural disasters” as follows: “no human agency in the occurrence of a specific catastrophic event. But knowledge of the risk of the natural event may exist and action may be taken to mitigate the extent of harm which follows the event”. D.D. Caron, Les aspects internationaux des catastrophes naturelles et industrielles / Académie de Droit International de La Haye = The International Aspects of Natural and Industrial Catastrophes / Hague Academy of International Law, in D.D. Caron, C. Leben (Eds.), 2001, The Hague, p. 96. See also: Near Earth Object Media/Risk Communications Working Group Report, Secure World Foundation, Broomfield, 2012, pp. 1–32. See also in this sense: C. Leben, op.cit., p. 27. See the Declaration on the trips Agreement and Public Health (Doha Declaration) according to which “Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to hiv/aids, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency”. Art. 5 (c) Declaration on the trips Agreement and Public Health, adopted on 14 November 2001.

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approach” on the part of the International Law Commission.84 As generally known, human and natural factors may jointly cause the event.85 An event can trigger other events. As a consequence, the final disaster could etiologically refer to them all, which makes any effort to identify a single sufficient cause virtually impossible. An apparent natural disaster can be caused or aggravated by human activity, for example, the desertification caused by excessive land use and deforestation. This is also the case for disaster such as floods or mudflows which originate from man-made hydrogeological instability.86 Another example is the occurrence of epidemics, which may not be the direct result of a human agency, but which may be aggravated by neglect in hygiene, in particular in refugee or internally displaced camps. Another case involves the escape of radioactive substances from a nuclear power plant caused by the destructive impact of a hurricane, or tsunami, as in Japan’s 2011 earthquake. To further expand the grey area, consider that what is generally defined as a natural disaster, as for instance an earthquake, may also be caused by human beings. The so called “environmental modification techniques”, which are prohibited by the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques,87 may indeed create some further doubts of classification to our purposes. Any attempt to distinguish between the two categories requires identifying the direct causes of the disaster: the case law of the European Court of Human Rights and international instruments regulating disaster prevention and response generally consider a disaster as natural as long as the event causing it is natural even if, in its turn, the event may stem from human causes. According to the natural – man-made disasters dichotomy, armed conflicts should also be classified as man-made disasters. However, the 2007 Guidelines, adopted by the Red Cross and Red Crescent, state that they “are not intended to apply to situations of armed conflict”.88 Along the same lines, the ­Commentary 84 85 86 87 88

Preliminary Report on the protection of persons in the event of disasters, doc. A/CN.4/598, par. 49. “The simple determination of causes and effects can prove very difficult”. Review of the Yokohama Strategy and Plan of Action for a Safer World, op.cit., p. 6. Cf. M.G. Faure, In the Aftermath of the Disaster: Liability and Compensation Mechanisms as Tools to Reduce Disaster Risks, Stanford Journal of International Law, 2016, p. 100. Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (1108 unts 151, p. 977), adopted by unga Resolution 31/72 of 10 December 1976, opened for signature in Geneva on 18 May 1977. Resolution 4, Adoption of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 30th International Conference of the International Red Cross and Red Crescent Movement, Geneva, Switzerland, 26–30 November 2007. On the issue of the law applicable to wartime disasters, i.e.

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Chapter 1

to Draft Article 3 unequivocally states that “a situation of armed conflict cannot be qualified per se as a disaster”.89 Without this specification, armed conflicts would obviously meet the threshold contemplated in the definition of disaster of the Draft Articles. This exclusion is coherent with international practice, as armed conflicts are generally excluded from the scope of international treaties regulating disaster prevention and response,90 and “there is an applicable, highly developed particular field of law dealing in great detail with such situations of social reality: namely, international humanitarian law”.91 Opposition between the belligerent States is not compatible with a situation of disaster response which is governed by the principle of solidarity and requires a cooperative attitude of the part of affected State requesting assistance along with an active attitude of the part of the assisting State. 1.4

The Prohibition of Transboundary Pollution

For centuries there has been a reactive, rather than pre-emptive, approach to disasters. Little or no attention – in terms of human and financial resources – was devoted to studying and implementing prevention and mitigation

89 90

91

to mixed situations of disaster and conflict, see Draft Art. 18 (Relationship to other rules of international law), and, for the related literature: D. Gavshon, The Applicability of ihl in Mixed Situations of Disaster and Conflict, Journal of Conflict and Security Law, 2009, pp. 243–263; G. Bartolini, La definizione di disastro nel progetto di articoli della Commissione del diritto internazionale, rdi, 2015, p. 161; T. Rodenhäuser, G. Giacca, The International Humanitarian Law Framework for Humanitarian Relief During Armed Conflicts and Complex Emergencies, in S.C. Breau, K.L.H. Samuel (Eds.), Research Handbook on Disasters and International Law, Cheltenham-Northampton, 2016, pp. 147–151. UN Doc. A/71/10, Commentary to Draft Art. 3 (Use of terms), par. 10. Art. 1 of the 1991 Agreement Establishing the Caribbean Disaster Emergency Response Agency expressly excludes from its scope “events occasioned by war or military confrontation”, and Art. 1 of the 1998 Cooperation Agreement between France and Malaysia qualifies as a “catastrophe” [“disaster”] “un événement autre que la guerre” [“any event other than war”]. Accord entre le Gouvernement de la République Française et le Gouvernement de la Malaisie sur la coopération dans le domaine de la prévention et de la gestion des catastrophes, et de la sécurité civile, 25 May 1998. Preliminary Report on the protection of persons in the event of disasters, doc. A/CN.4/598, par. 49. Art.10 of the Bruges resolution on Humanitarian Assistance similarly states that the resolution “is without prejudice to the: (a) principles and rules of international humanitarian law applicable in armed conflict, in particular the 1949 Geneva Conventions for the Protection of War Victims and the 1977 Additional Protocols”. Bruges Resolution on Humanitarian Assistance, adopted by the Institute of International Law during the Bruges Session, 2003.

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­ easures to reduce the negative effects of such phenomena. In the last dem cades the attention of the international community has slowly shifted, placing greater emphasis on prevention, preparedness, early-warning, in addition to response and rehabilitation. This approach proved coherent with the ancient brocard praestat cautela quam medela – prevention is better than cure – which is also true in this field.92 This trend is clearly highlighted by the General Assembly’s declaration of the International Decade for Natural Disaster Reduction,93 which was implemented through a number of strategies, namely Yokohama, Hyogo, up to the Framework for Disaster Risk Reduction, adopted at the Third UN World Conference on Disaster Risk Reduction, and later endorsed by the General Assembly.94 Today, a comprehensive approach to disaster management, which entails prevention and reconstruction, is recommended in all relevant international fora and plays a pivotal role. In legal terms, considering the “often irreversible character of damage to the environment and […] the limitations inherent in the very mechanism of reparation of this type of damage”,95 effective protection against disasters implies having a set of rules on prevention in tandem with a system of rules that regulate assistance. In line with such evolution, with reference to the Draft Articles on the Protection of Persons in the Event of Disasters, while the original proposal of the Secretariat was to develop “a legal framework for the conduct of international disaster relief activities”,96 the International Law Commission extended their

92

93 94 95 96

The first phase consists in the preparation of the necessary tools to prevent and mitigate the effects of disasters, and encompasses both structural measures such as the strengthening of buildings or of river banks, and non-structural measures such as risk assessment, rational planning of land, and public education. It is then necessary to develop an efficient early warning system and an adequate response strategy in case the disaster occurs despite the adopted measures. The response phase is characterised by the activation of the emergency services, the coordination of search and rescue of victims, and the evaluation of damage. Finally, the reconstruction and rehabilitation of the affected area takes place and leads back to the prevention phase, ideally forming a continuous cycle. unga Resolution A/RES/44/236, International Decade for Natural Disaster Reduction, adopted on 22 December 1989. Sendai Framework for Disaster Risk Reduction 2015–2030, adopted in Sendai on 18 March 2015 by the Third United Nations World Conference on Disaster Risk Reduction, and endorsed by the General Assembly in its resolution 69/283 of 3 June 2015, par. 2. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, i.c.j. Reports 1997, par. 140. Emphasis added. UN Doc A/61/10, 2016, par. 24.

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Chapter 1

scope, focusing on response to disasters and reduction of the risk of disasters.97 As far as disaster risk reduction is concerned, draft Article 9 contemplates the obligation upon each State to take the appropriate measures to prevent, mitigate, and prepare for disasters. It includes “the collection and dissemination of risk and past loss information, and the installation and operation of early warning systems”.98 This provision, however, does not specify the recipient of the information to be disseminated, that is the population on its territory and/ or other States. Within this context, the starting point is the well-established international law norm which obliges States to ensure that activities within their territorial jurisdiction, or under their control, do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. This norm, usually expressed by referring to the classical maxim sic utere tuo ut alienum non laedas,99 was already recalled, although in general terms, in the Island of Palmas case.100 After being better identified in the well-known Trail Smelter Arbitration,101 it was codified in the Stockholm Declaration on the Human

97

Draft Art. 2 (Purpose), ilc Draft Articles on the Protection of Persons in the Event of Disasters. 98 See Draft Art. 9 (Reduction of the risk of disasters), ibidem. 99 Cf. C. Leben, op.cit., p. 48; T. Kuokkanen, International Law and the Environment: Variations on a Theme, The Hague, London, New York, 2002, p. 57. Some authors place such principle within the framework of responsibility for abuse of rights. Garcia Amador, Fifth Report on State Responsibility, yilc, 1960, p. 60. In an environmental context, a State’s duty to respect the legitimate interests of its neighbouring States was also derived from the principle of good neighbourliness. However, without linking this principle to the doctrine of abuse of rights, it is difficult to understand its meaning. “The concept of “neighborliness” is thus but the factual background against which the exercise of territorial rights must be seen. It does not constitute an independently existing body of specific legal rules imposing restraints on the exercise of territorial rights but merely represents an expression of the principle of abuse of rights”. G. Handl, Territorial Sovereignty and the Problem of Transnational Pollution, ajil, 1975, p. 56. 100 “Territorial sovereignty […] involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war”. Island of Palmas case (Netherlands, u.s.a.), 4 April 1928, in riaa ii, p. 839. 101 In this case, the arbitral tribunal prescribed control measures to avert future transboundary air pollution from a Canadian smelter which had caused damages to the United States, and awarded damages to the latter. The arbitral tribunal concluded that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another”. Trail smelter case (United States of America, Canada), 16 April 1938, in riaa vol. iii, pp. 1905–1982.

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Environment,102 and in the Rio Declaration.103 The clear statement of the “existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control [which] is now part of the corpus of international law relating to the environment” is finally contained in the Nuclear Weapons Advisory Opinion.104 Diplomatic practice clearly confirms this in relation to the dispute between Canada and the Soviet Union over the fall of the Soviet satellite Cosmos-954 which caused severe radioactive contamination on Canadian territory. Canada not only based its claims on the 1972 Convention on Liability for Damage Caused by Space Objects,105 but also on general principles of international law, which impose a “duty to take the necessary measures to prevent and reduce the harmful consequences of the damage”.106 The customary law prohibition of transboundary pollution derives from the principle of State sovereignty.107 However, in carving out the exact meaning 102 “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. Principle xxi Stockholm Declaration of the United Nations on the Human Environment, Stockholm, adopted on 16 June 1972, 21st Plenary Meeting, UN Document A/Conf/48/14 (hereinafter Stockholm Declaration), ilm, 1972, vol. 11, issue 6, pp. 1416–1469. 103 Principle ii, Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, ilm, 1992, vol. 31, issue 4, pp. 874–880. 104 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, i.c.j. Reports 1996, par. 29; see also the award in the Arbitration regarding the Iron Rhine (“IJzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, (Belgium, Netherlands), 24 May 2005, in riaa vol. xxvii, pp. 35–125, in particular paras. 222–223. 105 Convention on International Liability for Damages Caused by Space Objects, concluded in Washington, London, and Moscow on 29 March 1972; 24 ust 2389, tias 7762, entered into force on 9 October 1973. 106 See the official documents provided by the Embassy of Canada at Washington, and reproduced in ilm, 1979, vol. 18, issue 4, pp. 899–930 and, in particular, par. 17 of the Statement of Claim. The Protocol on Settlement of Canada’s Claim for Damages Caused by “Cosmos 954” is reproduced in ilm, 1981, vol. 20, issue 3, p. 689. On the Cosmos-954 accident see S. De Bellis, La caduta del satellite Cosmos 954 e la responsabilità dello Stato di lancio, rdi, 1981, pp. 845–855. 107 In order to identify States’ opinio iuris, the claims made by Australia and New Zealand are worthy of note. The two countries brought two similar cases in front of the International Court of Justice, seeking provisional measures to inhibit France from conducting further nuclear testing in the atmosphere. As the Partial Nuclear Test Ban Treaty was not

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of prohibition, the sovereignty of both the polluting State and the one that is polluted should be equally considered. Once the principle is conceived in absolute terms, from the perspective of the polluting State, it would exclude any limitations to the use of its territory unless agreed upon. On the other hand, from the perspective of the polluted State, the principle of sovereignty, namely territorial integrity, would prohibit any negative effects upon its territory, stemming from a foreign State. But the principle of sovereignty cannot be envisaged in absolute terms, particularly in times of increasing international interdependence.108 In the past, two main views were expressed in the literature in an attempt to determine the content of the aforementioned primary obligation. The common premise is that, as far as protection of the environment is concerned, general international law does not require the State to refrain from carrying out technological or industrial activities that might cause environmental harm, since such activities are considered, in themselves, lawful. However, the State has to take all the necessary measures to ensure that such activities do not cause significant environmental damage. The measures adopted by the State cannot guarantee a result, since the results depend on strongly unpredictable elements.109 Against this backdrop, according to the first thesis, the general rule does not entail the prohibition of any harm, that is an obligation of result, but only an obligation of prevention limited by the due diligence standard, therefore only the obligation of States to undertake appropriate measures of prevention. The breach of such an obligation involves responsibility for a wrongful act based on fault (or owing to lack of due diligence). binding for France – and in the absence of any general international law rule prohibiting nuclear tests – the applicants’ claims were based on the wrongful character of the damages caused by radioactive fallout on their territory, which caused extremely dangerous effects to human health, the environment, and biological safety. As both Australia and New Zealand pointed out, France had undertaken its nuclear activities without their consent, thus violating their sovereignty and their rights to territorial integrity. Furthermore, the arguments of the Parties to this case were based on the traditional rule on the mutual respect of sovereignty by States. Nuclear Tests case (Australia v. France), Judgement of 20 December 1974, i.c.j. Reports 1974, p. 253. 108 Cf. R. Wolfrum, Purposes and Principles of International Environmental Law, gyil, 1990, pp. 310–311. 109 The breach of the rule obliging to prevent transboundary harm may occur either “directly”, owing to the wrongful behaviour of State organs, or of dependent agencies and bodies of the State, or “indirectly”, owing to the State’s breach of the obligation to prevent and repress harmful activities of private persons, triggering responsibility for omission in this case. Cf. L. Condorelli, L’imputation à l’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances, Recueil des cours, 1984, vol. vi, pp. 134–135.

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Some authors instead affirm that the general rule contains not only a due diligence obligation, but also an obligation of result, whose breach creates objective responsibility. In particular, they argue that the State where the source of pollution is located is in any case liable and obliged to pay compensation in case of transnational environmental harm.110 Coherently with the first thesis, international customary law on environmental protection seems to place a general obligation on States to diligently prevent harm.111 In the Corfu Channel Case, the International Court of Justice112 supports a similar conclusion, although the context was not environmental. In such case, the Court held Albania responsible for the damages to British warships as they were not warned and struck sea mines in Albania’s territorial waters. Moreover, it indicated that it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”. Scholars believe that the dictum may also apply to environmental problems because the “rights of other States” include the right to territorial integrity and to environmental protection.113 As for the exact nature of Albania’s responsibility for the wrongful act, the decision leads to conclude that the obligation of prevention is limited by the due diligence standard. In fact, the Court considered whether the Albanian government had been aware of the mines and of the passage of the British ships, and if it had had the chance and means to warn the British convoy of the danger in time. In short, the issue raised by the Court was whether Albania had caused (read: not prevented) the damage due to lack of due diligence. Then, in the field of environmental damage, the Lac Lanoux case is well-known. Clearly from the decision of the Arbitral Tribunal, France’s responsibility would have been established only if it had not taken all

110 Cf. M.B. Akehurst, International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, nyil, 1985, pp. 8–9. 111 In this sense see also: R. Pisillo-Mazzechi, Forms of International Responsibility for Environmental Harm, in F. Francioni, T. Scovazzi (Eds.), International Responsibility for Environmental Harm, London-Dordrecht-Boston, 1991, pp. 32–35; S. Marchisio, Il diritto internazionale dell’ambiente, in G. Cordini, P. Fois, S. Marchisio (Eds.), Diritto ambientale, 2nd edition, Torino, 2008, p. 35; P.N. Okowa, Procedural Obligations in International Environmental Agreements, byil, 1996, p. 332; P. Birnie, A. Boyle, C. Redgwell, op.cit., pp. 147–148; A. Kiss, J-P. Beurier, Droit international de l’environnement, 3rd edition, 2004, pp. 123–124; L.B. Sohn, The Stockholm Declaration on the Human Environment, The Harvard International Law Journal, 1973, vol. 14, n. 3, p. 514; R. Wolfrum, op.cit., p. 316. 112 Corfu Channel case (Merits), Judgment of 9 April 1949, icj Reports 1949, p. 22. 113 Cf. P. Birnie, A. Boyle, C. Redgwell, op.cit., p. 182; C. Focarelli, Duty to Protect in Cases of Natural Disasters, op.cit., par. 30.

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the necessary measures to prevent transboundary damage; thus it applies only for France’s negligent conduct.114 1.5

The Duty to Notify Impending Man-Made Disasters

Within this context, a major shortcoming of customary law is its failure to specify the content of the “due diligence” standard, namely what measures States must take to fulfil the customary duty to avoid transboundary damages. However, further obligations make such duty more specific and effective.115 In particular, the State under whose jurisdiction or control the origin of the disaster falls, shall notify the State that is likely to be affected. As if each State were the custodian of the area under its jurisdiction or control.116 This appears to be the necessary corollary to the aforementioned consolidated duty of prevention. The priority accorded to the territorial State may also viewed as a sensible 114 Lac Lanoux case (Spain, France), 16 November 1957, in riaa vol. xii, pp. 281–317. 115 We will not dwell on the requirement to provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effects, and on the further requirement to engage in consultation with those States. These requirements are an expression of the “precautionary approach” and they are both widely considered to reflect customary international law. Cf. C. Leben, op.cit., pp. 53–54; S. Marchisio, Il diritto internazionale dell’ambiente, op.cit., p. 20; P. Sands, J. Peel, A. Fabra, R. Mackenzie, Principles of International Environmental Law, Cambridge, 2012, p. 638; R. Wolfrum, op.cit., pp. 313–314. It has further been noted that “even if notification and consultation in cases of transboundary risk are not independent customary rules, non-compliance with them is likely to be strong evidence of a failure to act diligently in protecting other States from harm under Rio Principle 2”. P. Birnie, A. Boyle, C. Redgwell, op.cit., p. 177. In the Pulp Mills case, the International Court of Justice further pointed out that the procedural obligations of informing, notifying, and negotiating are particularly “vital when a shared resource is at issue, as in the case of the River Uruguay, which can only be protected through close and continuous co-operation between the riparian States”. Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, i.c.j. Reports 2010, p. 41, par. 81. In the same judgement, the International Court of Justice recognised that the Environmental Impact Assessment has become an obligation of general international law where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context. Ibidem, paras. 204–205. 116 The notion of “State of origin” may be clarified by the definition contained in the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, as the State “in the territory or otherwise under the jurisdiction or control of which the activities […] are carried out” which involve a risk of causing significant transboundary harm through their physical consequences. Art. 1 (Scope), Art. 2 (Use of terms), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, yilc, 2001, vol. ii, Part Two.

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safeguard against unwarranted interference in the sovereignty of States over matters in their territory.117 Such rule has received substantial support in the practice of States as well as in the opinio iuris. A number of international instruments118 and treaties oblige each State Party to promptly notify impending man-made disasters originating in areas under its jurisdiction or control.119 It is well-known that a reaffirmation of the same principle in treaties may offer strong indications for reconstructing the customary rules existing in a sector. For example, based on the 1986 Convention on Early Notification of a Nuclear Accident, a State shall promptly notify the potentially affected States or the International Atomic Energy Agency (iaea) when nuclear accidents on its territory, or under its jurisdiction or control, occur which are potentially of “radiological safety significance for another State”.120 Already in negotiating the Convention, under iaea auspices, the idea of a legal obligation to notify, under customary law, was expressed on several occasions.121 If at the time there were doubts on the existence under customary law of a legal obligation to notify 117 Cf. P.N. Okowa, Principle 18. Notification and Assistance in Case of Emergency, in J.E. Viñuales (Ed.), The Rio Declaration on Environment and Development: A Commentary, Oxford, 2015, p. 476. 118 Art. 17 (Notification of an Emergency), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, yilc, 2001, vol. ii, Part Two. 119 Art. 10 (2), Convention on the Transboundary Effects of Industrial Accidents, adopted in Helsinki on 17 March 1992, unts vol. 2105, p. 457; Art. 28 (2) of the Convention on the Law of the Non-navigational Uses of International Watercourses, adopted by the General Assembly of the United Nations on 21 May 1997, entered into force on 17 August 2014; Art. 13 (3) of the 2003 Framework Convention for the Protection of the Marine Environment of the Caspian Sea; Art. 7 (2) of the asean Agreement on Disaster Management and Emergency Response, 26 July 2005. 120 Art. 1 (1), Convention on Early Notification of a Nuclear Accident, Vienna, 26 September 1986, in ilm 1986, p. 1370. It was critically pointed out that the reference in Art. 1 (1) to an accident that “could be of radiological safety significance for another State” leaves it to the discretion of the State of origin to determine what is or is not of radiological safety significance and what are the chances that another State will be affected. Cf. P. Sands, J. Peel, A. Fabra, R. Mackenzie, op.cit., p. 644. According to these authors, given the dangers of radioactivity, it is preferable that all radioactive releases are notified to the iaea or, failing that, there should be an agreed level that triggers the obligation to provide information. In respect of the former, see also the declaration of the Italian Government: “the Italian Government considers that every accident should be notified, also those which have consequences limited to the territory of the State concerned”. International Atomic Energy Agency, Information circular, infcirc/335/Add.11, infcirc/336/Add.12, 5 November 2002, p. 3 121 See Statement of the US representative at the Final Plenary Meeting of Governmental Experts on 15 August 1986, iaea Doc. GC (spl.i), 2, Annex v, 4, the Chinese representative, ibidem, 5, the Japanese representative, ibidem, 21.

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in case of a nuclear accident,122 subsequent international practice helped to dispel any doubts, consolidating the general norm. The Convention principles have been transposed into several bilateral agreements. In December 1987, a decision on the early exchange of information in case of radiological emergency was adopted by the Council of the European Community.123 Because of its nature, general international law does not prescribe specific procedures that need to be followed. This leaves States free to decide how to issue their early-warning, unless bound by international agreements which determine the addressee of the notification, the type of information that must be provided, the modalities, as well as the frequency of periodic updates after the occurrence of a disaster. In this regard international treaties do not offer unequivocal solutions. For example, as far as information recipients are concerned, some conventions contemplate that, in case of emergency, the potentially affected States shall be directly notified. Other conventions, such as the Convention on Early Notification of a Nuclear Accident, contemplate an obligation to either notify the potentially affected States or the competent international organisation. Finally, there are treaties which solely contemplate an 122 The reaction of States to the Soviet Union’s failure to issue a warning in the aftermath of the Chernobyl nuclear accident in 1986 provides evidence that, according to a number of States affected, the Soviet Union was under a duty to warn them of the dangers to which they had become exposed. Although no State made a formal claim against the Soviet Union for damages resulting from the radioactive fallout, it is generally agreed that this was largely due to reasons of political expediency rather than because the Soviet Union was not held responsible. Cf. P.N. Okowa, Procedural Obligations in International Environmental Agreements, op.cit., p. 331. Furthermore, some States reserved their right to do so, including the Federal Republic of Germany, as they subsequently paid large sums of compensation to persons within their jurisdictions affected by the fallout. Cf. P. Sands, Chernobyl: Law and Communication: Transboundary Nuclear Air Pollution; The Legal Materials, Cambridge, 1988, pp. 26–28; P. Sands, J. Peel, A. Fabra, R. Mackenzie, op.cit., pp. 718–719. For the existence of a general duty to early warning in cases of nuclear accidents at the time of the Chernobyl disaster, see A. Kiss, L’accident de Tchernobyl et ses conséquences au point de vue du droit international, afdi, 1986, p. 144; G. Gaja, Incidente a Chernobyl ed obbligo di informazione, rdi, 1986, pp. 828–829; P. Sands, op.cit., pp. 38–39. A. Bianchi is more cautious: “the reaction of the international community to the failure, by the Soviet Union, to promptly notify what had happened in the nuclear plant does not unambiguously support the view favourable to the existence of such a principle [on the notification of a nuclear accident]”. A. Bianchi, Environmental Harm Resulting from the Use of Nuclear Power Sources in Outer Space: Some Remarks on State Responsibility and Liability, in F. Francioni, T. Scovazzi, International Responsibility for Environmental Harm, London-Dordrecht-Boston, 1991, p. 244. 123 Council Decision of 14 December 1987 on Community arrangements for the early exchange of information in the event of a radiological emergency. Official Journal L 371, 30 December 1987, pp. 76–78.

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obligation to notify the organization of competence, and not the potentially affected States.124 It seems safe to say that, under general international law, a breach to the notification obligation occurs when the State of origin does not provide sufficient information to enable other potentially affected States to minimize disaster related damages and to take the necessary appropriate self-protection measures.125 Existing international instruments and general international law converge on one feature embodied by the notification: that it must promptly reach the potentially affected States. This is an obvious requirement in case of impending disaster because any delay in notification could make all subsequent actions useless. Such safeguard will be taken into account to determine whether the State has acted with due diligence. Indeed, a State that fails to alert about impending disaster can hardly claim to be acting with the required due diligence in case of disaster. This must be assessed considering the technical and economic capacity of the State that issued the early warning, consistently to the general principle ad impossibilia nemo tenetur.126 In fact, the due diligence requirements for a State with advanced detecting technologies at its disposal cannot be the same as those which apply to a developing State. The outlined combination of 124 The who Regulations require each State Party to notify the who, and not the States potentially affected, in the case of events which may constitute a public health emergency of international concern within its territory and, as long as the notification received involves the competency of the iaea, the who shall immediately notify the iaea. Art. 6 (Notification) International Health Regulations. The concept of “public health emergency of international concern” is also specified in the Regulations as “an extraordinary event which is determined, as provided in these Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response”. Art. 1 (Definitions). The Regulations have been adopted under the auspices of the World Health Assembly in accordance with Art. 21 (a) of the who Constitution (adopted on 22 July 1946). The latest version was approved in 2005 and entered into force on 15 July 2007. 125 According to P.N. Okowa, a duty to warn can be taken to be an existing or at least an emergent rule of general international law. Cf. P.N. Okowa, Procedural Obligations in International Environmental Agreements, op.cit., p. 336. Contra, but axiomatically, V. Balakista Reddy, D. Banerjee, according to whom “current international law does not impose a clear duty upon nations to warn other nations of impending disasters”. V. Balakista Reddy, D. Banerjee, op.cit., p. 19. 126 P.N. Okowa, Principle 18. Notification and Assistance in Case of Emergency, op.cit., p. 479. In the past, it was maintained that the point of reference should be “la diligence que l’on pourrait, en raison des circonstances et de la qualité de cette personne, attendre d’un Etat civilisé” [The diligence which, in the light of the circumstances and of the quality of that person, one might expect from a civilised State]. P.M. Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle, Paris, 1976, p. 261.

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norms creates a regulatory framework capable of minimizing environmental damage and negative effects on humans. 1.6 Conclusions While each State is obliged to notify a man-made disaster originating within its jurisdiction or control, what remains to be ascertained is whether, under international law, there is a general duty to notify natural and man-made disasters regardless of their origin. This aspect today is particularly relevant because a State endowed with modern detecting technologies may be more aware of the seriousness and of the magnitude of an impending disaster than the State of origin. The State of origin may also deliberately attempt to hide an accident occurring in its jurisdiction or control thus being solely dependent on its notification could imply catastrophic consequences. The issue came to the fore in 2004, as the Indian Ocean tsunami clearly showed that the Comprehensive Nuclear Test Ban Treaty Organization (ctbto) International Monitoring System (ims) data can contribute to tsunami early warning.127 The earthquake was detected by 78 ims stations, and the information was transmitted in near-real time to the countries that signed the Nuclear Test Ban Treaty and subscribed to the data service of the International Data Center. Among those countries affected by the tsunami, Australia, Indonesia, Kenya, Malawi, Oman, South Africa, and Thailand were equipped with data receiving centers and received data from the ctbto’s International Data Center. However, India, which was heavily hit by the 2004 tsunami, had not signed the Nuclear Test Ban Treaty and, under treaty law, it was not entitled to receive data.128 The Nuclear Test Ban Treaty text clearly states that the 127 The ims consists of a large number of monitoring stations located in the member States, all of which must be connected with each other such as to provide global control. It is based on infrasound and hydroacoustic monitors, and functions with the help of seismological and radionuclide laboratories. See Art. iv (b) (The International monitoring system) n. 16 Nuclear Test Ban Treaty. 128 The Nuclear Test Ban Treaty, which contemplates specific obligations upon States Parties to transmit data, is not in force yet. To this effect, the Treaty needs to be ratified by 44 States, as specifically identified in its Annex 2. Should the ratification of the treaty fail, each individual one of these States is capable of nullifying all the other States’ efforts concerning the total ban of any kind of nuclear testing and the full implementation of the ims. Meanwhile, the ims is managed by the Preparatory Commission for the ctbto, and the early warning system is partially operating through bilateral agreements concluded between the ctbto and the Member States hosting ims stations. The relevant information is picked up by the monitoring stations and it is then provided, in near-real time, to

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­ echnical Secretariat is called upon “to make available all data, both raw and T processed, and any reporting products, to all States-parties”.129 Two issues were therefore at stake. Firstly, the system was originally meant to reveal nuclear explosions in order to give immediate scientific evidence of any violation of the Nuclear Test Ban Treaty.130 The evolution of ims into a natural disaster early-warning system apparently falls outside of the object and purpose of the treaty, and some States Parties wanted the ctbto to remain solely focused on its primary mission.131 The second issue was whether or not non-signatory States were entitled to receive ims data. The 2004 Tsunami in the Indian Ocean prompted the signatory Parties to adopt a decision in favour of data-sharing for humanitarian and disaster relief purposes, even among recipients outside the circle of signatories. Initially on a trial basis, the Technical Secretariat of the ctbto had a mandate to share data from its seismic and hydroacoustic stations with any tsunami warning organization recognized by unesco. Soon after, a decision of November 2006 made the mandate permanent.132 The current Standard Agreement on the Provision of Data for Tsunami Warning Purposes, drafted by the Provisional Technical Secretariat, in the preamble coherently recalls that “the Commission in its 27th Session decided that data may be provided to tsunami warning organizations approved by unesco on a certain number of conditions to be laid down in standard agreements to be entered into with the individual tsunami warning organizations”.133 However, focusing solely on State practice, which is still not consolidated, the existence of a general duty to notify in case of disaster may appear doubtful. It is worth noting, for example, that international treaties contemplating ctbto’s Member States by the ctbto. On the possibility of attaching some legal effects to the mere signature of the Nuclear Test Ban Treaty, pending its ratification, in the light of Art. 18 of the Vienna Convention on the Law of Treaties, see A. Pietrobon, Nuclear Powers’ Disarmament Obligation under the Treaty on the Non-Proliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions between Soft Law and Hard Law, Leiden Journal of International Law, Vol. 27, Issue 1, 2014, pp. 169–188. 129 Emphasis added. Art. iv (Verification) n. 14 (e), Nuclear Test Ban Treaty. 130 Art. iv (Verification) (b) (The international monitoring system), Nuclear Test Ban Treaty. 131 Cf. O. Meier, ctbto Releases Test Ban Monitoring Data for Tsunami Warning, Article published on Arms Control Association (https://www.armscontrol.org). 132 Annex ii to the Report of Part ii of the Twenty-Seventh Session of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization, Twenty-Seventh Session, Part ii, Vienna, 13–17 November 2006. ctbt/PC-27/2/Annex ii, 21 November 2006. 133 The text of the Standard Agreement on the Provision of Data for Tsunami Warning Purposes is available at https://www.ctbto.org/fileadmin/user_upload/legal/Model_Tsunami_Warning_Agreement_2007__English.pdf.

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a specific obligation to notify impending natural disasters are far fewer than those obliging the notification of man-made disasters.134 Additionally, very few international treaties contemplate an obligation upon State Parties to notify any relevant information in their possession in order to avert impending disaster, whether or not they are the State of origin. This applies to all treaties whose aim is the protection of areas beyond national jurisdiction, as the high seas. If those treaties would not include such as obligation, their effectiveness would largely be prevented and their purpose to protect would fail.135 But it is also the case of bilateral Facility Agreements which the ctbto concluded with each Member State hosting an ims station. The latter must transmit the monitoring data “recorded or acquired by any facility” to the International Data Centre, regardless of the origin of the phenomenon referred to.136 Along similar lines, who Regulations oblige a State Party to notify “as far as practicable” 134 For example, under the Protocolo adicional al acuerdo marco sobre medio ambiente del MERCOSUR en materia de cooperación y asistencia frente a emergencias ambientales, the State of origin shall notify any “emergencia ambiental” [environmental emergency], which is described as the “situación resultante de un fenómeno de origen natural o antrópico que sea susceptible de provocar graves daños al ambiente o a los ecosistemas y que, por sus características, requiera asistencia inmediata” [situation resulting from a phenomenon of natural or anthropogenic origin which is likely to cause serious damage to the environment or ecosystems and which, because of its characteristics, requires immediate assistance]. Emphasis added. Protocolo adicional al acuerdo marco sobre medio ambiente del MERCOSUR en materia de cooperación y asistencia frente a emergencias ambientales, signed by MERCOSUR member States in July 2004, Art. 4 (Procedimiento de Notificación de Emergencias Ambientales). Some international treaties further include the “notification in the case of natural and man-made disasters, or imminent threat thereof” within the contemplated areas of cooperation. See Art. 2 (Areas of co-operation) Memorandum of Understanding between the Presidency of the Council of Ministers of the I­ talian Republic – Department of Civil Protection and The Ministry of Defence of the Republic of Slovenia – Administration for Civil Protection and Disaster Relief on cooperation in the field of disaster management. 135 Art. ix (b) of the Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, Kuwait, 24 April 1978; Art. 12 (2) of the 1981 Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region; Art. 198 of the United Nations Convention on the Law of the Sea, December 10 1982, 1833 unts 3, 21 ilm 1261 (1982); Art. 11 (2) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, 24 March 1983; Art. 5 (1) of the International Convention on Oil Pollution Preparedness, Response and Cooperation 1891 unts 51, 30 ilm 733 (1990); Art. 12 (2) Amended Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, adopted in Nairobi on 31 March 2010, unep(depi)/eaf/cpp.6/8a/Suppl. 136 See Art. 14 (iv) and also Art. 17 of the Model Facility Agreement. The text of the Model Facility Agreement is available at https://www.ctbto.org/member-states/legal-resources/.

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the who of receipt of evidence of a public health risk identified outside its territory that may result in international disease spread.137 Other international treaties contemplate the faculty, and not the duty, to notify. For instance, according to the Convention on Early Notification of a Nuclear Accident, a State Party “may” – and not “shall” – notify in the event of nuclear accidents other than those originating under its jurisdiction or control.138 Although international treaties offer no unequivocal solution, and the practice is still not consolidated, arguably any State that is “aware” of an impending disaster has the obligation to notify, regardless of whether the disaster is natural or man-made, and regardless of where it originates. This already was in the minds of the “founding fathers” of the ius gentium, from the 16th to 18th century, whose classical writings survived the onslaught of time. De Vitoria in particular maintained, in his De jure belli, that “quiconque peut remédier au péril ou au malheur du prochain est tenu de le faire” [anyone who can remedy the peril or misfortune of their neighbour is obliged to do so].139 His ideas seem revitalized in the words of the ilc Rapporteur, according to whom “the underlying principles in the protection of persons in the event of disasters are those of solidarity and co-operation, both among nations and among individual human beings. It is in the solidarity inspired by human suffering that the Commission’s mandate finds telos, as an expression of our common heritage in a global context”.140 The notion of solidarity was expanded on by the Rapporteur as “an international legal principle, and distinct from charity, [which] gives rise to a system of cooperation in furtherance of the notion that justice and the common good are best served by policies that benefit all nations”.141 In the end the ilc decided to recall the “fundamental value of solidarity in international relations” in the preamble of the Draft Articles. While the term “solidarity” is not actually used in the UN Charter, the preamble among the goals of the Organisation states “to practice tolerance and 137 138 139 140

Art. 9 (2) (Other reports), International Health Regulations, 2005 Edition. Art. 3 (Other nuclear accidents) Convention on Early Notification of a Nuclear Accident. F. De Vitoria, De jure belli, 1539, 1, 22, 26. Second Report on the Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/615, par. 50. 141 Ibidem, par. 54. According to A.G. Koroma, the notion of solidarity has long been central to international law, at least to the extent that the term is used in its general sense to represent a commitment to work towards the common good. This idea is represented in some form in the preamble to practically every international instrument. Cf. A.G. Koroma, Solidarity: Evidence of an Emerging International Legal Principle, in Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (Eds.), Coexistence, Cooperation and Solidarity, vol. i, Leiden-Boston, 2012, p. 103.

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live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security”. Article 1 (3) of the UN Charter then presents one of the purposes of the United Nations that is “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. Recently, the concept of solidarity has, on multiple occasions, been explicitly listed by the General Assembly as a “fundamental value” required in a democratic and equitable international order, and as a principle enshrined in the UN Charter.142 In particular, in the United Nations Millennium Declaration, the General Assembly considers the principle of solidarity as one of the six “fundamental values […] essential to international relations”.143 The explanation of this principle states that “global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most”. Although the declaration seems to consider the principle of solidarity according to the strict meaning of wealth distribution, another of the six fundamental values it identifies is “shared responsibility”, defined as the responsibility for managing worldwide economic and social development, as well as threats to international peace and security. A further value is the “respect for nature”, defined as the management of living species and natural resources “in the interest of our future welfare and that of our descendants”.144 Therefore, taken altogether, the declaration encompasses a concept of solidarity which is significantly broader in scope. As long as a State does not notify the potentially affected States of an impending disaster, despite being aware of it, its conduct is hardly reconcilable with the solidarity principle. 142 See Resolution 56/151 Promotion of a Democratic and Equitable International Order, adopted on 19 December 2001, par. 3 (f); Resolution 57/213 Promotion of a Democratic and Equitable International Order, adopted on 18 December 2002, par. 4 (f), and respective preambles. The Secretary-General also stated that “The concept of international solidarity so often evoked following major emergencies and understood as a feeling of responsibility towards people in distress equally has its roots in the ethical principles of the Charter. Solidarity in this sense is not charity”. Report of the Secretary-General, New International Humanitarian Order. Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations, A/45/587, 24 October 1990. 143 unga Resolution 55/2 United Nations Millennium Declaration, adopted on 8 September 2000. 144 The International Court of Justice expressed concern on a possible danger to future generations in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, icj Reports 1996, par. 35.

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45

The duty to warn States of the dangers they are exposed as a result of emergency situations was endorsed by the International Court of Justice as far back as 1949, in the previously mentioned Corfu Channel case.145 In that case, the Court referred to Albania’s obligation to warn ships of the dangers they were exposed to in its territorial waters. In fact, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching. The statement was made in the context of the right of States to unimpeded transit through international straits. However, the International Court of Justice characterized the duty to notify based on “elementary considerations of humanity”, which are “general and well-recognized principles”, “even more exacting in peace than in war”. Thus, the Court perceived such principles suitable to general application.146 Similarly, in the Nicaragua case, reference was made to the Corfu Channel judgement to reaffirm the duty that States have to warn others in case of danger.147 The commentary to draft Article 7 (Duty to cooperate) is worth noting. It states that cooperation also covers risk reduction,148 and qualifies it as a “legal obligation” for the various parties concerned. Although for the ilc “the nature of the obligation of cooperation may vary, depending on the actor and the context in which assistance is being sought and offered”,149 clearly, in this realm,

145 Corfu Channel case, Judgment of 9 April 1949, icj Reports 1949, p. 22. 146 “Dans le […] cas où il s’agit d’avertir un Etat d’une catastrophe qui le menace sans être en rien responsable de la situation, on pourrait évoquer à bon droit un principe général de droit découlant de “considérations élémentaires d’humanité”, comme l’a fait, à propos d’autres circonstances, la Cour internationale de Justice dans l’affaire du Détroit de Corfou” [In a case where a State is to be warned of a catastrophe it is threatened by without the notifying State being in any way responsible for the situation, a general principle of law may be rightly evoked as a result of those “elementary considerations of humanity”, as the International Court of Justice did, under other circumstances, in the Corfu Channel case]. C. Leben, op.cit., pp. 61–62. See also: P. Birnie, A. Boyle, C. Redgwell, op.cit., p. 182; A. Kiss, L’accident de Tchernobyl et ses conséquences au point de vue du droit international, op.cit., p. 144. 147 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, i.c.j. Reports 1986, par. 215. 148 Commentary to draft Art. 7 (Duty to cooperate), paras. 6, 9. 149 Commentary to draft Art. 7 (Duty to cooperate), par. 6. For the difficulty of encapsulating the exact meaning of the general obligation to cooperate, also in respect of similar provisions included in previous ilc Draft Articles, namely the Draft Articles on the Law of the Non-navigational Uses of International Watercourses, see O. McIntyre, Envinronmental Protection of International Watercourses under International Law, New York, 2016, p. 319.

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cooperation is envisaged as a duty instead of a free choice, which further supports the existence of a legal duty to notify an impending disaster.150 The previously mentioned Rio Declaration in general terms establishes that “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem”.151 It goes even further, explicitly affirming that States “shall immediately notify” of any natural or man-made disasters, with no reference to the State of origin.152 It is also worth remarking that the International Law Commission, in its Draft Articles on Prevention of Harm from Hazardous Activities, provides examples of weather forecasting systems that identified the occurrence of an imminent disaster. This illustrates that the duty to notify is not just confined to the territorial State, but extends to all States who have information on the likelihood of a disaster.153 In light of the above, and in accordance with the growing opinio juris which foresees both categories of disasters under the same legal regime, early warning is compulsory even in case of natural disasters.154 Even more so, for all impending disasters regardless of their origin.155 It may be rather difficult to 150 Cf. C. Tomuschat, op.cit., p. 263. The author notes that, in the environmental field, the principle of co-operation is reflected in duties of information and consultation which “may effectively prevent the causing of major harm to the environment”. See also: G. Venturini, International Disaster Response Law in Relation to Other Branches of International Law, in A. De Guttry and others (Eds.), op.cit., p. 62; G. Bartolini, Il Progetto di articoli della Commissione del Diritto Internazionale sulla “Protection of Persons in the Event of Disasters, rdi”, 2017, p. 700. 151 Principle 7 of the Rio Declaration on Environment and Development, 31 ilm 874 (1992). unep Workshops on implementation of and compliance with Environmental Conventions. unep Biannual Bulletin of Environmental Law, vol. 3, July 1995. 152 Principle 18 of the Rio Declaration on Environment and Development. 153 See Commentary to Draft Art. 17 (Notification of an emergency), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, yilc, 2001, Vol. ii, Part ii, par. 98. 154 In this sense, see also: A. Moreno, La Commercialisation des images satellites. Approche juridique, Travaux du Centre de recherche sur le droit des marchés et des investissements internationaux, Université de Bourgogne cnrs, Volume 18, 1999, p. 154; and P. Okowa, who even maintains that “the lex lata content of this part of Principle 18 [the notification obligation] has never been in doubt”. P.N. Okowa, Principle 18. Notification and Assistance in Case of Emergency, op.cit., p. 472. 155 “The timely and effective warning of possible disaster is a self-evident objective”. unga, Environment and Sustainable Development: International Decade for Natural Disaster Reduction. Early-Warning Capacities of the United Nations System with Regard to Natural Disasters, op.cit., p. 1. “When effective early warning systems are in place, thousands of lives can be saved, as was the case in Cuba during Hurricane Michelle in 2001”. United Nations, World Conference on Disaster Reduction, Review of the Yokohama Strategy and Plan of Action for a Safer World, op.cit., p. 10. “Disaster prevention, mitigation and

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prove that a State, not the State of origin, was aware of an impending disaster, and did not issue an early warning. But this difficulty does not have to do with the interpretation of the obligation; but with proof of breach.156 ­ reparedness are better than disaster response in achieving the goals and objectives of p the Decade. Disaster response alone is not sufficient, as it yields only temporary results at a very high cost”. Par. 3 of the Yokohama Message, 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, p. 2. See also principle ii and par. 7, p. 7. “Early warning is widely accepted as a crucial component of disaster risk reduction”. United Nations, World Conference on Disaster Reduction, Review of the Yokohama Strategy and Plan of Action for a Safer World, Kobe, Hyogo, 18–22 January 2005, A/CONF.206/L.1, p. 10. “If an early warning system had been in place when the tsunami of 26 December 2004 struck the Indian Ocean region, many thousands of lives could have been saved. That catastrophe was a wake-up call for Governments and many others about the role early warning can play in avoiding and reducing the human and physical impacts of natural hazards”. Kofi A. Annan, Foreword to the Global Survey of Early Warning Systems, United Nations, 2006, p. i. 156 Cf. K. Widdows, What is an Agreement in International Law, byil, 1979, p. 139.

Chapter 2

Humanitarian Assistance in the Wake of Disasters 2.1

The Consent of an Affected State to Humanitarian Assistance

As far as the provision of post-disaster assistance is concerned, several actors, bearers of potentially diverging interests, are involved: the State affected by the disaster interested in protecting its sovereignty; the different external actors providing humanitarian assistance; and the victims of the disaster, in need of assistance. The need to reconcile such different interests is mirrored in the structure of the Draft Articles which, in their final version, establish a system of “checks and balances” to balance diverging requirements. The Draft Articles’ primary focus considers the position of the “affected State”. Generally regarded as a self-evident concept, the few existing definitions describe it as the State upon whose territory persons or property are affected by a disaster.1 The ilc, instead, in referring to the “affected State” offers two distinct hypotheses: “a State in whose territory”, or a State “in territory under whose jurisdiction or control, a disaster takes place”. This second hypothesis refers to a State which has de jure jurisdiction, or de facto control, over a territory in which a disaster occurs, and was apparently inspired by the definition of “State of origin” in Draft Articles on prevention of transboundary harm from hazardous activities.2 The centrality of State sovereignty as an overriding principle in the provision of emergency assistance is emphasized in the final preambular paragraph of the Draft Articles, and in its commentary,3 where the principle of sovereignty of States is defined as “a core element of the Draft Articles”, inasmuch as “the reference to sovereignty, and the primary role of the affected State, provides the background against which the entire set of draft articles is to be

1 Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, op.cit., Art. 2 (Definitions), par. 8. 2 Art. 2 (d) (Use of terms), Draft Articles on prevention of transboundary harm from hazardous activities, with commentaries, yilc, 2001, vol. ii, Part Two. 3 “Stressing the principle of the sovereignty of States and, consequently, reaffirming the primary role of the State affected by a disaster in providing disaster relief assistance”. Preamble, par. 5.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004388369_004

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understood”.4 The Draft Articles consistently require, as a general rule, the affected State’s consent for humanitarian relief.5 Once humanitarian assistance is accepted, the affected State still retains core functions as the direction, control, coordination and supervision of the relief assistance on its territory,6 which arguably includes determining when the assistance will be provided.7 These rules also stem from principles of sovereignty and non-intervention.8 At the same time, they satisfy the need to have control over humanitarian actors and to avoid situations of “open door policy” 4 UN Doc. A/71/10, Commentary to the preamble, par. 6. 5 Draft Art. 13 (1) (Consent of the affected State to external assistance). According to the laconic definition contained in the ilc Draft Articles, “external assistance” means: “relief personnel, equipment and goods, and services provided to an affected State by an assisting State or other assisting actor for disaster relief assistance”. E. Vitta defines humanitarian relief operations as follows: “le azioni internazioni di soccorso umanitario possono esser definite come quelle attività, provenienti dall’esterno, che si svolgono nei territori appartenenti ad uno Stato o che si trovano sotto il suo controllo, onde portare soccorso alle popolazioni dei territori stessi” [International humanitarian relief actions can be defined as those activities coming from outside, taking place in territories belonging to a State or under its control, in order to bring relief to the peoples of those territories]. E. Vitta, Le azioni internazionali di soccorso umanitario, in Studi in onore di Giorgio Balladore Pallieri, vol. ii, Milano, 1978, pp. 660–661. 6 Draft Art. 10 (2) (Role of the affected State). The rule is reiterated in a number of unga resolutions: unga Resolution 43/131 “reaffirms also the sovereignty of affected States and their primary role in the initiation, organization, co-ordination and implementation of humanitarian assistance within their respective territories” unga Resolution 43/131, Humanitarian assistance to victims of natural disasters and similar emergency situations, adopted on 8 December 1988. See also par. 2 of unga Resolution 45/100, Humanitarian assistance to victims of natural disasters and similar emergency situations, adopted on 14 December 1990; principle 4 of unga Resolution 46/182, Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, adopted on 19 December 1991. 7 Cf. P. Harvey, Towards Good Humanitarian Government. The Role of the Affected State in Disaster Response, Humanitarian Policy Group, Report 29, 2009, p. 2. 8 On the principle of sovereignty, see A. Miele, op.cit., pp. 169–190. As Oppenheim says, the prohibition of intervention “is the corollary of every State’s right to sovereignty, territorial integrity and political independence”. R. Jennings and A. Watts (Eds.), Oppenheim’s International Law, 9th Edition, vol. i, Harlow, 1992, p. 428. In more precise terms, R. Sapienza highlights that the principle of non-intervention protects a peculiar aspect of territorial sovereignty, that is the exercise of the governmental power within the State’s territory. Cf. R. Sapienza, Il principio del non intervento negli affari interni: contributo allo studio della tutela giuridica internazionale della potestà di governo, Milano, 1990, p. 103. “A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones”. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), op.cit., par. 205.

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which may create problems of supply-driven thinking, non-professional relief workers, and the blocking of appropriate aid.9 They also stem from common sense: humanitarian relief in disaster-affected territories requires a modicum of knowledge on the geographic morphology and deployable human resources. Usually, the State affected by a disaster is the most appropriate actor to organize and supervise rapid relief operations and coordinate aid supply.10 In international practice open requests for assistance are often transformed into welcoming assistance.11 For example, in the aftermath of the 2004 tsunami, Thailand’s Ministry of Foreign Affairs asked the United Nations to avoid referring to Thailand’s request for assistance as an “international appeal”.12 It does not mean, however, that the practice of welcoming assistance amounts to granting in advance consent to international assistance, to a “blanket” consent13 because an offer by third States is still subject to the affected State’s b­ asic right to control the assistance that is being provided. This, for instance, includes specifying the scope and type of assistance needed and the conditions it shall comply with, rejecting whatever it deems inappropriate.14 Given the number of existing agreements, multiple instruments, at the global, regional and bilateral level, can potentially regulate the provision of assistance in case of disaster.15 The principle of sovereignty and prohibition on 9 10

11 12 13 14

15

Cf. T. O’Donnell, C. Allan, An Offer You Cannot Refuse? Natural Disasters, the Politics of Aid Refusal and Potential Legal Implications, Amsterdam Law Forum, 2013, p. 40. Cf. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, 2004, available at https://www .icrc.org/fre/assets/files/other/irrc_856_kolb.pdf, p. 864. From a different perspective, D.P. Fidler states that “the prospect that assistance could be a cover for ulterior, power-­political objectives highlighted the importance for the victim State to retain sovereign control over whether and how such assistance would be accepted”. D.P. Fidler, op.cit., p. 461. Cf. G. De Siervo, Actors, Activities, and Coordination in Emergencies, in A. De Guttry and others (Eds.), op.cit., p. 495. ifrc, Legal Issues from the International Response to the Tsunami in Thailand, July 2006, p. 8. In these terms: the Secretariat’s Memorandum, UN Doc. A/CN.4/590, p. 45. Draft Art. 14 (Conditions on the provision of external assistance). This right is translated into an obligation in a number of treaties. According to the Agreement on cooperation and mutual assistance in cases of Accidents between Finland And Estonia, for example, “The Party requesting assistance must specify the nature and scope of the assistance which it requires and must, to the extent possible, provide the other Party with the information which the other Party needs in order to determine the scope of the assistance (emphasis added)”. Art. 6, Agreement on cooperation and mutual assistance in cases of Accidents between Finland And Estonia. Signed at Helsinki on 26 June 1995, unts 33393; in similar terms Art. 11 asean Agreement on Disaster Management and Emergency ­Response, 2005. Factors in determining which agreement applies include whether a specific instrument was invoked in the request. Furthermore, a request addressed to a regional organisation

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interference in the internal affairs of the receiving State not only give primacy to consent, but also give the affected State the freedom to choose the legal framework that regulates assistance relief. A further corollary is that all disaster relief operations in principle shall comply with the national laws of the affected State, as explicitly contemplated in a number of international instruments, and codified in draft Article 14.16 Finally, once again, considering the principles of sovereignty and non-­ intervention in the domestic affairs of the receiving State, relief operations shall terminate upon the simple request of the affected State.17 Thus, its consent conditions the provision of assistance, from the beginning until the end. Should the disaster take place under de jure jurisdiction or de facto control of a further State, two entities will end up being the “affected State” – according to the definition contained in the Draft Articles – and are called upon to grant their consent. The ilc has not solved the issues that may arise from a coexistence of more than one State qualified as such, even if arguably relief actions cannot be carried out without prior consent from the State that de facto controls the area.18 Consent on the part of the affected State can either be given una tantum and ex ante facto, with ratification an instrument providing the possibility of humanitarian assistance delivery in case of disaster, or based on ad hoc, ex post consent at the onset of the emergency. Two interpretations are possible. One may argue that the latter is a case of consent as a circumstance precluding wrongfulness of an act which, without consent, would constitute a breach of the territorial sovereignty of the affected

16 17

18

would suggest an intention by the affected State to trigger the operation of a specific agreement established under the auspices of that organisation. Draft Art. 14 (Conditions on the provision of external assistance); Art. 13 (2) (Respect of National Laws and Regulations) asean Agreement; par. 5 of unga Resolution 46/182. Draft Art. 17 (Termination of external assistance). The Draft Article further specifies that a consultation is required with respect to the termination of external assistance and the modalities of termination in line with a number of instruments which provide for such consultation. Both the Tampere Convention and the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance further make direct reference to the potential impact on affected persons, providing in relevant part that the affected State and the assisting actors should consult with each other “bearing in mind the impact of such termination on the risk to human life and ongoing disaster relief operations”. See Art. 6 (1) (Termination of assistance) of the Tampere Convention and, in a similar vein, Art. 12 of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance. Cf. G. Bartolini, Il Progetto di articoli della Commissione del Diritto Internazionale sulla “Protection of Persons in the Event of Disasters, op.cit., p. 692.

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State.19 It would be different if the consent is given una tantum and ex ante facto with ratification an instrument that foresee the delivery of humanitarian assistance in case of disaster. In such case the State that delivers humanitarian assistance complies with treaty norms, thus consent as a circumstance precluding wrongfulness is not applicable. From a different perspective, one may argue that in both cases consent given prior to humanitarian assistance delivery might be part of an agreement between the consenting affected State and the State offering humanitarian assistance. According to this interpretation, consent relates to the law of treaties and not to the law on responsibility.20 In any case, to be valid, consent must be clearly provided and internationally attributable to the affected State.21 As a matter of fact, States are reluctant to allow, in advance and una tantum, access to the victims of humanitarian emergencies. Such reluctance is proven firstly by the attempts made under the auspices of the United Nations, which failed to adopt a convention that regulates international humanitarian assistance by allowing third States, international intergovernmental and nongovernmental organizations, or a mechanism created ad hoc, to automatically provide humanitarian assistance to a State that is unable to face the emergency. In particular, the undro Draft Convention on Expediting the Delivery of Emergency Assistance, which did not require the specific consent of the receiving State to deliver relief assistance, as States Parties were called upon to grant it previously and una tantum by ratifying the Convention, in the end remained a draft that was never adopted. International treaties, instead, usually contemplate the ad hoc request or consent of the affected State as a required condition for the delivery of external assistance.22 In international practice, humanitarian response after a 19 20 21 22

Art. 20 (Consent) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts and its commentary. Cf. A.B. Mansour, Circumstances Precluding Wrongfulness in the ilc Articles on State ­Responsibility: Consent, Oxford Commentary on International Law. The Law of International Responsibility, in J. Crawford, A. Pellet, S. Olleson (Eds.), Oxford, 2010, p. 445. “The principles which, according to the Vienna Convention, applied to the determination of the validity of treaties, also applied with respect to the determination of the validity of consent”. R. Ago Report, ilc Yearbook 1979, vol. i, p. 33, par. 34. 1927 Convention Establishing an International Relief Union (no longer in force), Art. 4; 1986 Convention on Assistance in the Case of a Nuclear Accident Or Radiological Emergency Art. 2 (1) (Provision of assistance), Art. 3 (Direction and control of assistance); Arab Cooperation Agreement Regulating and Facilitating Relief Operations, Arab League ­Decision No. 39, dated 3 September 1987, (c) Relief operations; 1991 Inter-American Convention to Facilitate Disaster Assistance, adopted in Santiago on 6 July 1991, Art. 1 (a) ­(Applicability), Art. 4 (a) (Direction and control of assistance); 1991 Agreement establishing

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d­ isaster is always carried out in response to a specific request or consent on the part of the affected State.23 Similarly, even in a closely integrated community of States such as the European Union, assistance cannot be provided unless it is specifically requested by the affected Member State.24 To sum up, the responsibility for the activation, organization and coordination of humanitarian aid on State territory in the aftermath of a disaster lies primarily with the affected State. Whereas the role of third States and international organizations, even in its implementation modality, depends on prior consent of the affected State.25

23

24 25

the ­Caribbean Disaster Emergency Response Agency, Art. 16 (Direction and control of assistance); Protocol between the Kingdom of Spain and the Portuguese Republic on technical co-operation and mutual assistance in the field of civil defence, Evora, 9 March 1992, Art. 3 (7); 1998 Tampere Convention, op.cit., Art. 4 (5) (8) (Provision of telecommunication assistance); Framework Convention on Civil Defence Assistance, 22 May 2000, Art. 3 (a) (Principles); Protocolo Adicional al Acuerdo Marco sobre Medio Ambiente del Mercosur en Materia de Cooperación y Asistencia ante Emergencias Ambientales, 7 July 2004, Art. 5 (Procedimiento de Asistencia); asean Agreement on Disaster Management and Emergency Response, signed in Vientiane on 26 July 2005, in force since 24 December 2009, Art. 3 (Principles), Art. 11 (Joint Emergency Response through the Provision of Assistance); tfeu, Art. 222 (1) (b); (2); saarc Agreement on Rapid Response to Natural Disasters, Addu, 11 November 2011, Art. 3 (Principles). The International Health Regulations always condition the provision of assistance by the who on the request of the territorial State and, when the offer of collaboration is not accepted by the territorial State, the who merely “may, when justified by the magnitude of the public health risk, share with other States Parties the information available to it, whilst encouraging the State Party to accept the offer of collaboration by who, taking into account the views of the State Party concerned”. Art. 13 (Public health response); Art. 5 (3) (Surveillance); Art. 10 (3) (4) (Verification), International Health Regulations. Contra, but with no treaties supporting her statement, G. Venturini: “a duty to accept assistance is established by a number of treaties”. G. Venturini, International Disaster Response Law in Relation to Other Branches of International Law, op.cit., p. 48. Consent to the initiation of relief assistance generally arises in the form of the acceptance of an offer of assistance made by another State, a group of States, or an international organisation in response to a prior request by the affected State, but the acceptance can also follow unsolicited offers, as is explicitly contemplated in the asean Agreement on Disaster Management and Emergency Response: “external assistance or offers of assistance shall only be provided upon the request or with the consent of the affected Party”. Emphasis added. Art. 3 (1), asean Agreement. Art. 222 (1) (b) (Solidarity clause), tfeu. In order to emphasise the primary responsibility of the territorial State in the delivery of humanitarian assistance, some authors theorise on a subsidiarity or complementary competence for third States: “c’est seulement “en second” que l’aide internationale intervient, en substitut des actions qu’aurait dû entreprendre l’Etat territorialement compétent” [It is only as “in second instance” that international aid intervenes as a substitute for actions that should be undertaken by the territorially competent State]. M. Bettati,

54 2.2

Chapter 2

Explicit and Implicit Refusal to Humanitarian Assistance in International Practice

Once affected by a disaster, States sometimes refuse external humanitarian assistance. Among the many examples of refusal India, in the 2004 tsunami, rejected international aid and denied access to the Andaman and Nicobar islands, even though it took the government four days to bring in food.26 Arguably, it was because of the important military base on the Car Nicobar island.27 India refused a further offer of international aid following a major 2005 earthquake in South Asia, once again pointing to its long history in being reluctant to ask for, or accept, international aid. It therefore constitutes a good example of a government’s discretion in accepting relief offers. After storm events in Fiji and the 1999 earthquake in Turkey, there were delays in calling for international aid.28 International practice shows that States refuse external humanitarian assistance either explicitly or implicitly. In the latter case, this takes place through a strategy that hinders humanitarian assistance. While a number of disasters attracted attention on the issue of initial consent to conduct humanitarian relief operations, in most cases it is at the stage of humanitarian aid delivery on the territory that problems arise. States may consent to relief operations. Yet, they may not ensure that the latter are conducted in a rapid, unimpeded manner. This may well be considered an implicit refusal. States will often decide to selectively refuse an offer coming from non-friendly governments or international organizations. Following hurricane Charley in 2004, Cuba rejected the United States’s offer for assistance. Conversely, in the aftermath of Hurricane Katrina, in 2005, the United States initially declined financial donations and supplies from several countries, including offers of medical aid from Cuba.29

26 27 28 29

Trimestre du monde, 1992, p. 31; “Or l’action humanitaire a pour objet de suppléer l’activité de l’Etat territorial incapable de faire face à une situation extrême” [Humanitarian action is intended to supplement the activity of the territorial State unable to deal with a severe situation]. P. Weckel, Le Chapitre vii de la Charte et son application par le Conseil de sécurité, afdi, 1991, p. 193. Cf. R. Cohen, M. Bradley, op.cit., p. 124. Cf. N. Lepp, Disaster Relief Politics complicate South Asia Effort, The Dominion, 3 January 2005, available at http://www.dominionpaper.ca/international_news/2005/01/03/ disaster_r.html. ifrc, Law and Legal Issues in International Disaster Response: A Desk Study, op.cit., p. 89. Cf. S. Zunes, Bush Administration Refuses Cuban Offer of Medical Assistance Following Katrina.  Did Arrogance Cost Lives?, Foreign Policy in Focus, 19 October 2005, available at http://fpif.org/bush_administration_refuses_cuban_offer_of_medical_assistance_­ following_katrina/.

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States have at times refused offers of external assistance, even when needs outstripped the national capacities. In 1990, after the earthquake that hit the Gilan province, tallying over 50,000 victims, Iran was slow in requesting international assistance. Initially it forbade direct rescue flights and the entry of aid workers.30 In 2008, Cyclone Nargis in Myanmar devastated a large part of the Irrawaddy Delta region, causing the death of tens of thousands of people, destroying food stocks and housing. According to UN reports, 2.4 million people were severely affected and in need of humanitarian assistance. Despite its insufficient national response, the government refused to admit international assistance.31 There may be several reasons that induce the affected State to refuse humanitarian assistance. Governments, particularly those of developing countries, are at times reluctant to accept outside assistance, and even to admit that a disaster has actually occurred, fearing that the vulnerability of their society and inability to effectively deal with catastrophic events would become clear. In this manner, national concerns and personal prestige gain the upper hand over the suffering of its population. Economic interests may induce a government to deny that a disaster is impending or exacerbating.32 Affected States may suspect that external interventions carried out for allegedly humanitarian purposes de facto hide less praiseworthy objectives. Alternatively, they may want to avoid the confusion triggered by outsiders entering State borders and having a large flow of international assistance, not to mention their determination to prevent future dependence upon aiding States. Against such background, considering the general rule of consent, the central issue is to establish whether or not the affected State has unfettered discretion to refuse humanitarian assistance. In this regard, the literature and international practice have elaborated the concept of arbitrary refusal to humanitarian assistance.33 Whether under specific circumstances, humanitarian

30 31 32

33

Cf. R.J. Hardcastle, A.T.L. Chua, Humanitarian Assistance: Towards a Right of Access to Victims of Natural Disasters, International Review of the Red Cross, 1998, 1, available at https://www.icrc.org/eng/resources/documents/misc/57jpjd.htm, p. 589. Human Rights Watch, 2009, pp. 223–224. From late 1972 to November 1973, the Imperial Ethiopian Government of Haile Selassie suppressed early warnings of famine and then denied that severe famine and cholera were sweeping the country in an effort to avoid international embarrassement and to preserve agricultural exports and tourism. See also: Z. Coursen-Neff, Preventive Measures Pertaining to Unconventional Threats to the Peace such as Natural and Humanitarian Disasters, n.y.u Journal of International Law and Politics, 1998, pp. 677–682. The concept of arbitrary refusal of humanitarian assistance was already used in the Resolution of the Institute of International Law “The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States”, adopted in Santiago de

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assistance delivery without the consent, or even in spite of the refusal of the affected State is lawful will be verified hereafter. An important difference must be immediately highlighted. In the field of armed conflicts, despite the absence of specific reference in treaty texts, the concept “arbitrary withholding” of consent has long been used. On the contrary, this issue in case of disasters has come to the forefront for the first time during the elaboration of the ilc Draft Articles on the Protection of Persons in the Event of Disasters. This analysis will first consider the applicable legal framework in situations of armed conflicts, and then it will focus on the legal position of the State affected by disasters. Evidently, as mentioned in the premise, armed conflicts and disasters are different in fact as well as in law. A State tends to be wearier in receiving external humanitarian relief in situations of armed conflict and, at times, its potential interference in the armed conflict may be regarded as possible assistance to the other side. Armed conflicts are based on the idea of opposing forces, and this does not apply to disasters. However, a common denominator in situations of occupation, international armed conflict, noninternational armed conflict and disaster is the emphasis on State consent. As a general rule, without the State’s consent, humanitarian actors cannot provide relief to its stricken population. It is also worth noting that, in case of arbitrary withholding of consent, the underlying legal issues are similar in both situations. 2.3

Arbitrary Refusal to Humanitarian Assistance in Situations of Armed Conflict

Some provisions of international humanitarian law focus on the position of the recipient State with regard to relief operations in situations of armed conflict: namely Article 59 of the Geneva Convention iv, applicable to occupied territories, Article 70 of Additional Protocol i applicable to international armed conflicts, and Article 18 of Additional Protocol ii concerning situations of non-international (internal) armed conflicts. Under Article 59 of the Geneva Convention iv, if the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power “shall agree” to relief schemes on behalf of that population, undertaken Campostela on 13 September 1989: “States in whose territories these emergency situations [situations where the life or health of the population is seriously threatened] exist should not arbitrarily reject such offers of humanitarian assistance (emphasis added)” (Art. 5).

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either by States or by impartial humanitarian organizations, exemplified by the International Committee of the Red Cross, and “shall facilitate them by all the means at its disposal”.34 Article 70 of Additional Protocol i states that “if the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies […], relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions”.35 Finally, Additional Protocol ii, applicable to non-international armed conflicts, foresees, in its Article 18, that relief actions “shall be undertaken subject to the consent of the High Contracting Party concerned” when “the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival”.36 All three provisions seem to involve an obligation, undertaken una tantum and ex ante facto, to accept relief, although expressed in different terms. Article 59 of the Geneva Convention iv formulates the obligation “the Occupying Power shall agree”. Additional Protocols i and ii state that “relief actions shall be undertaken”, clearly implying the obligation to accept relief. This interpretation is supported by the negotiation records, and by government statements made after the conference, and during the ratification process.37 On the other hand, even if there is a duty to accept relief, this does not mean that anyone can carry out relief actions and distribute relief supplies. The High Contracting Party “concerned”38 or the Occupying Power need to grant their 34

35 36 37 38

Art. 59, Convention (iv) relative to the Protection of Civilian Persons in Time of War. ­ eneva, 12 August 1949. The subsequent articles specify the responsibilities of the G ­occupying Power, the modalities of the relief distribution, and the possibility of ­individual reliefs. See Articles 60, 61, 62. Emphasis added. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977. Emphasis added. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ii), 8 June 1977. Norway, Report by the Ministry of Foreign Affairs, 8 June 1979, St.meld. n. 102 (1978–1979); Switzerland, Message submitted by the Federal Council to the Federal Assembly, 18 February 1981, p. 86. The identification of the “High Party concerned” is more complex in non-international armed conflicts. A divergence of views exists among commentators as to whether the consent of the State party to the conflict is required for relief operations into territory controlled by the opposition that can be reached without transiting through territory controlled by the State. On this issue, see M. Bothe, Relief Actions: The Position of the ­Recipient

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consent. The clause requiring the Parties concerned to agree was added to the Protocols during the Conference essentially out of a concern to protect the national sovereignty of the State receiving the relief.39 But the situation of an Occupying Power under Article 59 of the Geneva Convention iv is by no means different. It “shall agree”, which means that there must be a prior agreement before any relief action.40 After all, the wording of the three norms can be interpreted in two different ways, depending on whether the focus falls on the requirement of the “agreement/consent”, or on the peremptory verb “shall be undertaken/shall agree” which seem contradictory. As long as assistance requires a recipient to agree, how can we say that relief actions “shall be undertaken”? Interpreting the texts in a manner which insists on the requirement of consent, but also requires such consent not to be withheld arbitrarily, enforces both aspects of the provision.41 Under this interpretation, specific authorization is required on the part of the territorial State, or of the occupying Power, at the time humanitarian assistance is delivered. Such authorization is needed

39 40

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State, in F. Kalshoven (Ed.) Assisting the Victims of Armed Conflict and Other Disasters, op.cit., pp. 93–94; E.C. Gillard, The Law Regulating Cross-Border Relief Operations, International Review of the Red Cross, 2013, pp. 363–367, and literature cited therein. Cf. Y. Sandoz, C. Swinarski, B. Zimmermann (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, 1987, par. 2805. According to P. Macalister-Smith, however, in case of Art. 59 of the Geneva Convention iv “there may even be at least an initial presumption that offers of assistance should be accepted”. P. Macalister-Smith, Rights and Duties of the Agencies Involved in Providing Humanitarian Assistance and their Personnel in Armed Conflict, in F. Kalshoven (Ed.), op.cit., p. 108. In this sense, see also: M. Bothe, ibidem, pp. 92–95. E.C. Gillard, The Law Regulating CrossBorder Relief Operations, op.cit., p. 355. According to A. Creta, the Additional Protocols implicitly recognise the entitlement of a civilian population lacking adequate supply to receive humanitarian relief, because they require that, in this circumstance, relief actions “shall be undertaken”. A. Creta, A (human) right to humanitarian assistance in disaster situations? Surveying Public International Law, in A. de Guttry and others (Eds.), op.cit., p. 362. Likewise, an influential commentary on the Additional Protocols provides that the consent of the State “has to be granted as a matter of principle, but […] it can be refused for valid and compelling reasons […] there is no unfettered discretion to refuse agreement, and it may not be declined for arbitrary or capricious reasons”. M. Bothe, K.J. Partsch, W.A. Solf, New Rules for Victims of Armed Conflict: Commentary on the two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982, p. 434. R. Kolb notes that “Le consentement de l’État territorial reste nécessaire, mais ne doit en principe pas être refusé. On retrouve l’idée de l’interdiction de tout refus «arbitraire»” [The consent of the territorial State remains necessary, but should, in principle, not be refused. One finds again the idea of the prohibition of any “arbitrary” refusal]. R. Kolb, op.cit., p. 858. See also T. Rodenhäuser, G. Giacca, The International Humanitarian Law Framework for Humanitarian Relief During Armed Conflicts and Complex Emergencies, op.cit., p. 138.

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to determine the implementing measures. The State can anchor its consent to specific requirements, as listed by the Geneva rules, which include the impartiality and purely humanitarian character of the relief.42 Nevertheless, once these requirements are satisfied, the State concerned must grant consent to international organizations and third States willing to provide assistance. ­Refusal would be unlawful and arbitrary, except on valid grounds.43 This interpretation is consistent with the principle that a treaty must not be interpreted in such a way that would render parts of the text redundant or meaningless.44 Moreover, a treaty shall be interpreted in good faith, which requires a balance between treaty elements. The travaux préparatoires lead in the same direction. In drafting Additional Protocol i, it was clearly stated that the consent requirement “did not imply that the Parties concerned had absolute and unlimited freedom to refuse their agreement to relief actions. A Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones”.45 Support was given by several States, and no delegation opposed this view. Turning to non-international armed conflicts, Article 18 of the Additional Protocol ii was one of the most hotly debated articles at the Diplomatic Conference that led to the adoption of the Protocol. For the States that opposed the idea of regulating non-international conflicts, provision of external assistance 42

When the regulatory and essential elements concerning reciprocal rights and obligations are fully defined within an agreement, the latter may contain an obligation to conclude a further agreement to clarify purely executive aspects. Within these limits, an obligation de contrahendo seems to be admitted in international law. In this sense, see A. Pietrobon, Il sinallagma negli accordi internazionali, Padova, 1999, p. 122; H. Kelsen, Principles of International Law, 2nd Edition, New York-Chicago-San Francisco-Toronto-London, 1966, p. 482. 43 According to the icrc “the parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control”, and State practice establishes this rule as a norm of customary international law applicable to both international and non-international armed conflicts. International Committee of the Red Cross, Customary International Humanitarian Law, https://www .icrc.org/customary-ihl/eng/docs/v1_rul_rule55. 44 See Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 ­December 1998, i.c.j. Reports 1998, p. 432, par. 52; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia Federation), Preliminary Objections, Judgement of 1 April 2011, i.c.j. Reports 2011, paras. 133–134. The principle of effectiveness is closely related to the textual interpretation ( Art. 31 par. 1 of the Vienna Convention on the Law of Treaties) in the sense that all textual wordings are not to be ignored. Cf. C. Lo, Treaty Interpretation Under the Vienna Convention on the Law of Treaties, Singapore, 2017, p. 245. 45 See icrc Commentary to Art. 70. o.r. xii, p. 336, CDDH/II/SR.87, par. 27.

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was particularly problematic, as relief often equated to foreign intervention and foreign assistance to rebellion. Nonetheless, similar comments also applied to the consent requirement in Article 18 of the Additional Protocol ii.46 The International Committte of the Red Cross’s Commentary to Article 18 of the Additional Protocol ii states: “the fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place”.47 The question is therefore: when is the refusal arbitrary? Or, stated in positive terms, what are valid reasons for refusal? Certain key factors may be identified. They therefore become a starting point in considering the arbitrariness in this context.48 46 47

Belgium and Germany, CDDH/SR.53, pp. 156–157. In the same sense: M. Bothe, K.J. Partsch, W.A. Solf, op.cit., p. 696. Contra F. Lattanzi, according to whom, in the course of non-international armed conflicts, humanitarian assistance needs the specific consent of the territorial State in order to be provided from the outside. Cf. F. Lattanzi, Assistenza umanitaria e intervento di umanità, Torino, 1997, pp. 24–25. According to the author, States are particularly “jealous” in the management of relief operations in the course of non-international armed conflicts. In fact, as regards such conflicts, Art. 3 (2) of the Additional Protocol ii reaffirms in categorical terms the principle of non-intervention: “nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs”. Furthermore, the Additional Protocol ii does not contemplate an automatic role of third States “to ensure respect” for humanitarian law, contrarily to Art. 1, common to the four Conventions, and to Art. 1 of Additional Protocol i. Even more clearcut is the position adopted by C. Focarelli, according to whom the admitted obligation upon the occupying power to let relief consignments reach the civil population “is not found outside of occupied territories”. C. Focarelli, Duty to Protect in Cases of Natural Disasters, op.cit., par. 28. 48 The Dictionnaire de droit international public describes as arbitrary the “décision qui heurte les principes d’égalité et de justice, car elle ne peut être fondée sur aucun critère légal ou raisonnable et défie toute prévisibilité” [a decision which runs counter to the principles of equality and justice as it cannot be based on any legal or reasonable criterion and defies any predictability]. J. Salmon (ed.), Dictionnaire de droit international public, Bruxelles, 2001, p. 78. R. Kolb recalls that “l’interdiction de l’arbitraire a été perçue par certains comme un principe général du droit international, qui se rattache à l’interdiction de l’abus de droit et, de manière médiate, au principe de la bonne foi” [The prohibition of arbitrariness was perceived by some as a general principle of international law, connected with the prohibition of abuse of right and, in a mediate manner, to the principle of good faith]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 868. More concisely, the same author writes in another publication: “L’arbitraire, c’est-à-dire

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In situations of armed conflict, withholding consent to humanitarian relief operations by a Party will be arbitrary when it implies that obligations under the Conventions and Protocols are violated.49 This approach was already followed by the International Court of Justice in the Nuclear Weapons Advisory Opinion, where the notion of arbitrariness, referred to the deprivation of life under Article 6 of the 1966 International Covenant on Civil and Political Rights, was determined in a situation of armed conflict by reference to other applicable legal obligations, namely the applicable international humanitarian law principles.50 As a consequence and above all, in case of occupation, international or noninternational armed conflict, refusal to humanitarian assistance is arbitrary when it goes against the prohibition to use starvation as a method of warfare or combat. Such prohibition is respectively mentioned by Article 54 of Additional Protocol i and Article 14 of Additional Protocol ii. For example, in the course of a non-international armed conflict where the aim and final result of the refusal is to weaken the resistance of an adversary by depriving the civilian population of its means of subsistence.51 Then, the wounded and sick – including enemy combatants – must receive, under Article 10 of Additional Protocol i and Article 7 of Additional Protocol ii, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. No distinction may be made on any grounds other than medical ones. Thus, withholding consent to medical relief operations, including on the grounds that medical supplies and equipment could be used to treat wounded enemy combatants, is arbitrary.

49

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les actes manifestement injustifiés au regard des faits” [Arbitrariness, that is, those acts which are manifestly unjustified in the light of the facts]. R. Kolb, La bonne foi en droit international public. Contribution à l’étude des principes généraux de droit, Geneva, 2000, pp. 468–469. The Oxford Guidance, in its Section E, identifies three “headings” of arbitrariness. Consent is withheld arbitrarily if: 1. it is withheld in circumstances that result in the violation by a State of its obligations under international law with respect to the civilian population in question; or 2. the withholding of consent violates the principles of necessity and proportionality; or 3. consent is withheld in a manner that is unreasonable, unjust, lacking in predictability or that is otherwise inappropriate. Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, 2016, par. 49. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996, par. 25. “Such a refusal would be equivalent to a violation of the rule prohibiting the use of starvation as a method of combat as the population would be left deliberately to die of hunger without any measures being taken. Consequently this would be a violation of Art. 14 of the Protocol”. icrc Commentary to Art. 18, Additional Protocol ii.

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The discretion to refuse consent is further restricted by human rights considerations, namely by the duty of each State “to ensure to all individuals within its territory and subject to its jurisdiction the rights”52 applicable in armed conflict.53 Both the UN Human Rights Council and the UN Human Rights Committee have addressed the issue of the legality of obstruction to humanitarian access in Syria, South Sudan and Sudan from the perspective of “arbitrary denial” of access.54 The Committee on Economic, Social and Cultural Rights, in examining States’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights, stressed that depriving civilians of access to food and humanitarian assistance in a situation of armed conflict amounted to a violation of the right to food. For example, in its 2010 concluding observations on the Sri Lanka report, the Committee expressed: “deep concern about allegations according to which during the last months of the armed conflict in 2009, civilians were deliberately deprived of food, medical care and humanitarian assistance which constitute violations of article 11 of the Covenant as well as of the international humanitarian prohibition of starvation and may amount to a war crime. (Article 11) In light of its general comment No.12 (1999) on the right to adequate food, the Committee draws the attention of the State party to the fact that the prevention of access to humanitarian food aid in internal conflicts constitutes a violation of Article 11 of the Covenant as well as a grave violation of international humanitarian law”.55 On the other hand, consent can be withheld, and offers for assistance can be turned down lawfully in a number of situations. Firstly, when the offer of assistance is not humanitarian and impartial in nature and when it is discriminatory in conduct. These conditions are clarified in detail in Article 70 of the 52 53

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Art. 2 of the 1966 International Covenant on Civil and Political Rights. For the issue concerning the relationship between humanitarian law and human rights, see N. Ronzitti, Diritto internazionale dei conflitti armati, Torino, 2006, pp. 148–152; R.J. Dupuy, L’assistance humanitaire comme droit de l’homme contre la souveraineté de l’état, in F. Kalshoven (Ed.), Assisting the Victims of Armed Conflict and other Disasters, op.cit., pp. 27–34; D. Akande, E.-C. Gillard, Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict, International Law Studies, 2016, pp. 503–505. Human Rights Council Resolution 29/13, U.N. Doc. A/HRC/Res/29/13, par. 1 (July 23, 2015) (South Sudan); “The State Party should: […] Authorize and facilitate the timely and unrestricted access of humanitarian assistance to civilian populations in all conflict-affected areas in full compliance with the prohibition of arbitrary denial of humanitarian access”, U.N. Human Rights Committee, Concluding Observations on the Fourth Periodic Report of the Sudan, par. 8 (f), U.N. Doc. CCPR/C/SDN/CO/4 (19 August 2014). U.N. Committee on Economic, Social and Cultural Rights, Concluding Observations: Sri Lanka, U.N. Doc. E/C.12/LKA/CO/2-4, par. 28 (9 December 2010).

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Additional Protocol i and in the Military and Paramilitary Activities in and against Nicaragua judgement. In its judgement, the Court refers to the discriminatory character of the assistance provided and to the objectives of the United States, therefore excluding that, in this particular case, assistance could “escape condemnation as an intervention in the internal affairs”.56 It is instead doubtful that valid and compelling reasons for refusal “may include imperative considerations of military necessity”.57 The ilc Commentary to draft Article 25 on “Necessity” specifies that military necessity cannot be invoked except insofar as it is specifically envisaged by international humanitarian law norms.58 Besides, where the contrary thesis is admitted, the rule Kriegsraeson geht vor Kriegsrecht (the rationale of war comes before the law of war) calls into question the binding nature of international humanitarian law as a whole.59 2.4

Arbitrary Refusal to Relief Flights

Humanitarian assistance from an aircraft can quickly reach the victims of armed conflicts or disasters, even in hard-to-reach areas. Therefore, before focusing on a disaster scenario on the ground, it is particularly important to 56

57

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“If the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes allowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering” and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents”. Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgment of 27 June 1986, icj Reports 1986, par. 243. According to a number of authors, valid reasons include military necessity: M. Bothe, K.J. Partsch, W.A. Solf, op.cit., p. 434; M. Bothe, Relief Actions: The Position of the Recipient State, op.cit., p. 93; 95; E.C. Gillard, The Law Regulating Cross-Border Relief Operations, op cit., p. 360. Commentary to Draft Art. 25 (Necessity), par. 21, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. Cf. S. Heathcote, Circumstances Precluding Wrongfulness in the ilc Articles on State Responsibility: Necessity, in J. Crawford, A. Pellet, S. Olleson (Eds.), Oxford Commentaries on International Law. The Law of International Responsibility, Oxford, 2010, p. 498. N. Ronzitti, Diritto internazionale dei conflitti armati, op.cit., pp. 184–185. In this regard, T.  Rodenhäuser and G. Giacca adopted a more nuanced position, without however clarifying its legal basis: “reasons of imperative military necessity may permit parties to ­temporarily limit relief operations but not to the extent of invoking it to deny access completely”. T. Rodenhäuser, G. Giacca, op.cit., p. 139.

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determine whether relief flights require prior authorization from the recipient State, and perhaps even from the overflown transit State. The Chicago Convention on International Civil Aviation replaced the Paris Convention, and carries verbatim the Paris Convention norm on the national sovereignty over the air space:60 “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”.61 The Chicago Convention reaffirms the principle in other provisions.62 In particular, it is worth highlighting that the State that is being flown over is also entitled to restrict or prohibit flights above certain areas, or the whole territory, in “exceptional circumstances” or in an “emergency” period, on condition that no distinction be made between foreign and national aircraft. Clearly, disasters fall under such categories.63 From the principle of sovereignty over airspace, any relief flight – whether scheduled or non-scheduled – is not admitted at the will of the benefactor, without prior permission of the intended recipient State. If doubts arose on whether the Paris Convention norm on sovereignty over the airspace embodied a customary norm, such doubts have been dispelled following the Chicago Convention.64 The International Court of Justice has recognized that “as to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Article 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory”.65 It follows from the principle of sovereignty over the air that every State has a right

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Art. 1, Convention Relating to the Regulation of Aerial Navigation, signed in Paris on 13 October 1919. League of Nations Treaty Series (1922) n. 297, p. 173, no longer in force. Art. 1 (Sovereignty), Convention on International Civil Aviation, signed at Chicago on 7 December 1944, icao Doc.7300/7 (7th ed.–1997), 15 unts 295; entered into force on 4 April 1947 [hereinafter Chicago Convention]. Cf. I.H.P. Diederiks-Verschoor, An Introduction to Air Law, 7th Edition, The Hague, 2001, pp. 12–15. Art. 9 (Prohibited areas), Chicago Convention. Cf. A. Verdross, Völkerrecht, Wien, 1955, 3rd edition, pp. 198–199; S.B. Rosenfield, Where Air Space Ends and Outer Space Begins, jsl, 1979, p. 137; E. Du Pontavice, Evolution du droit spatial en lui-même et par rapport au droit aérien, rfdae, 1983, p. 387. For a historic survey, see R. Quadri, Droit international cosmique, Recueil des Cours, 1959, vol. 98, pp. 539–549. Such regime has not been overturned by the open skies policy, which is applicable to commercial flights and does not mean that sovereignty in national airspace is abolished. It means that a State within its airspace for domestic air transport, or through a treaty for international air transport, adopts a commercial regime based upon a maximum of free market and a minimum of governmental intervention. Cf. P.C. Haanappel, The Law and Policy of Air Space and Outer Space: A Comparative Approach, The Hague, 2003, p. 4. Emphasis added. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. i.c.j. Reports 1986, par. 212.

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to regulate air traffic over its territory. The great number of national air law enactments is further proof that airspace belongs to States’ territorial sovereignty. As a firmly established rule of customary international law, it is binding even upon States that are not Parties to the Chicago Convention. State territory is therefore tridimensional. Consent to relief flights, on the part of the affected State, may be given either ex ante and una tantum or ad hoc, after the occurrence of a disaster, the latter being the most common case. Indeed, although bilateral treaties on disaster relief contain provisions on overflight and landing rights, they always assume that there is a prior request for assistance by the affected State for those rights to be effective.66 Perhaps a unique example of consent given ex ante and una tantum is provided by the 1956 Paris Convention. It establishes that a civil aircraft, registered in a State (member of the European Civil Aviation Conference), operated by a national of a Contracting State that is authorized by the competent national authority of that State, can fly freely if the aircraft is engaged in non-scheduled flights for humanitarian or emergency needs.67 However, when a natural or man-made disaster “seriously endanger[s] human health or the environment”, exceeding the affected State’s coping capacity, as well as when “similar emergency situations” occur “where UN assistance is required”,68 the general rule of sovereignty over the airspace, embodied in the 66

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The Agreement between the Swiss Federal Council and the Government of the Republic of the Philippines on Cooperation in the Event of Natural Disaster or Major Emergencies, for example, obliges the “competent authorities of the requesting State (emphasis added)” “to guarantee overflight in the airspace of the territory of the requesting State, and landing and take-off, even outside customs airports, of aircrafts used by the sha [Swiss Humanitarian Aid Unit] for the purposes of the mission referred to in the agreement”. Art. 8 (2) Agreement between the Swiss Federal Council and the Government of the Republic of the Philippines on Cooperation in the Event of Natural Disaster or Major Emergencies. To this end, prior communication by the assisting State is required concerning information inter alia related to times of take-off and landing, intended route, and place of landing. See also the Agreement between the Republic of Austria and the Federal Republic of Germany Concerning Mutual Assistance in the Event of Disasters or Serious Accidents, 1988, Art. 8; Agreement on Mutual Assistance in the Event of Disasters or Serious Accidents (with exchange of notes), Denmark-Federal Republic of Germany, 1985, Art. 6; Agreement on Cooperation on Disaster Preparedness and Prevention, and Mutual Assistance in the Event of Disasters, Spain-Argentina, 1988, Art. xv. Art. 2 (1), Multilateral Agreement on Commercial Rights of Non-Scheduled Air Services in Europe, signed in Paris on 30 April 1956. Standard 8.8 (Relief flights following natural and man-made disasters which seriously endanger human health or the environment, and similar emergency situations where United Nations (UN) assistance is required). That the disaster shall exceed the affected State’s coping capacity is specified in a note attached to the standard, which stresses that disaster is “a serious disruption of the functioning of society, causing widespread human, material

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Chicago Convention, shall be taken into consideration in combination with the standards contemplated in its Annex 9.69 Under the above mentioned circumstances, the Chicago Convention Contracting States are obliged to facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights performed by or on behalf of international organizations recognized by the United Nations, or by or on behalf of States themselves, and they shall take all possible measures to ensure their safe operation.70 The provision makes no distinction between transit State and recipient State, since it is generical and applicable in any location.71 Thus, the obligation to facilitate relief flight operations and ensure their safe operation, is also incumbent upon the State affected by the disaster. Secondly, and more importantly, the standard emphasizes: “such flights shall be commenced as quickly as possible after obtaining agreement with the recipient State”.72 Apparent similarities emerge

69

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or environmental losses which exceed the ability of the affected society to cope using only its own resources”. Emphasis added. Although, according to the General Information of the Annex 9, the notes give factual information or references bearing on the Standards or Recommended Practices without constituting a part thereof, thus without having normative value, the requirement of exceeding the affected State’s coping capacity is a limit which stems from the principle of non-intervention and from the due observance of its sovereignty. For this reason, despite being contained in a note, it is legally binding. On the exact meaning of the outlined definition of disaster, see supra par. 1.2. “Standard: Any specification, the uniform observance of which has been recognized as practicable and as necessary to facilitate and improve some aspect of international air navigation, which has been adopted by the Council pursuant to Art. 54 (l) of the Convention, and in respect of which non-compliance must be notified by Contracting States to the Council in accordance with Art. 38”. General Information, Annex 9 (Facilitation). Thus, the standards contained in the Annex are compulsory for each State Party to the Chicago Convention, unless a notification is given to the International Civil Aviation Organization by such a State. For the details of the regulation, see Art. 37 (Adoption of international standards and procedures) and Art. 38 (Departures from international standards and procedures) of the Chicago Convention. Annex 9 to the Chicago Convention, Standard 8.8. The same obligations to facilitate the entry, transit, and departure of aircraft, persons, and equipment are contemplated for marine pollution and safety emergency operations. Letter D (Marine pollution and safety emergency operations), standards 8.10; 8.11. See, as a parallel, Section F (Natural disaster relief work) of the Convention on Facilitation of International Maritime Traffic, London, 9 April 1965, standard 5.11 (now 7.8): “Public authorities shall facilitate the arrival and departure of vessels engaged in natural disaster relief work”. The general obligation to facilitate is made more specific in a number of treaties, generally bilateral treaties, exempting from the payment of customs and import and export duties on personal effects, equipment, and supplies, for instance. See also rule 6 and 8 of the unitar Model Rules for Bilateral Agreement between an Assisting State and a Receiving State. Emphasis added. Standard 8.8.

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between the structure of this norm and the norms considered above which regulate humanitarian response in armed conflicts. The norm sets an obligation, undertaken una tantum and ex ante facto, to consent to the entry of relief flights when conditions are met (the disaster seriously endangers human health or the environment and exceeds the affected State’s coping capacity). The provision, indeed, states that “such flights shall be commenced as quickly as possible”,73 implying an obligation to accept relief flights. On the other hand, the obligation to accept relief flights does not mean that anyone can perform them freely, at their discretion. The recipient State’s consent is needed, as it is expressly stated that relief flights shall be commenced “after obtaining agreement with the recipient State”.74 The concept of arbitrary refusal at first glance becomes once again relevant since the affected State must grant consent to international organizations and to third States willing to provide assistance, unless there are valid reasons for refusal. For example, since the recipient State must take “all possible measures” to ensure the safe operation of relief flights, flight safety can be a valid reason for refusal.75 “Agreement with the recipient State” refers instead to specific authorization required on the part of the recipient State, at the time of the delivery of humanitarian assistance, to determine take-off and landing time, intended route and place of landing. This entails, on the one hand, the illegality of refusing relief flights in conditions of disaster, unless there are valid reasons for refusal; on the other hand, it implies the need to obtain specific authorization to start relief flights.76 This interpretation is consistent with the principle according to which a treaty must not be interpreted to render parts of the text redundant or meaningless.77 It is also coherent with the principle that a treaty shall be interpreted in good faith, 73 74 75 76 77

Emphasis added. Emphasis added. For an exemplification of valid reasons for refusal in a situation of armed conflict, see supra par. 2.3. As far as situations of disaster are concerned, see infra par. 2.5. According to the unitar Model Rule 10: “The receiving State shall grant permission for overflight and landing of aircraft transporting designated relief personnel and relief supplies (emphasis added)”. See Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 ­December 1998, i.c.j. Reports 1998, p. 432, par. 52; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia ­Federation), Preliminary Objections, Judgment, i.c.j. Reports 2011, paras. 133–134. The principle of effectiveness is closely related to the textual interpretation ( Art. 31 par. 1 of the Vienna Convention on the Law of Treaties) in the sense that all textual wordings are not to be ignored. Cf. C. Lo, op.cit., p. 245.

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which requires a balance of treaty elements. Indeed, as long as consent is the sole requirement to be emphasized, without the aside “shall be commenced”, the norm would simply reiterate the general principle of national sovereignty over airspace. In this manner, when a disaster occurs and it “seriously endanger[s] human health or the environment”, far beyond the affected State’s capacity to cope with it using its available resources, for relief flights the Chicago Convention mitigates the rigidity of the general rule requiring consent for overflight or landing. This is in line with treaty obligations that States have undertaken in similar situations where human life is in danger. In case of aircraft accident, the Chicago Convention Contracting States have undertaken an obligation to make arrangements (shall make arrangements) “to ensure entry without delay into their territories on a temporary basis of qualified personnel required for search, rescue, accident investigation, repair or salvage in connection with a lost or damaged aircraft”.78 In the law of the sea, the general rule foresees the territorial sea passage to be continuous and expeditious. However, passage includes stopping and anchoring “for the purpose of rendering assistance to persons, ships or aircraft in danger or distress”.79 In figurative terms, it seems that, when human life is in danger, the principle of territorial sovereignty becomes, to a certain extent, porous.80 It acknowledges the value of human life and the urgency to rescue. The above-mentioned obligation to accept relief flights, unless valid reasons exist for refusal, does not imply, nor ensure that humanitarian assistance will reach disaster victims. In this regard, the Chicago Convention states that personnel and articles arriving on relief flights shall be “cleared without delay”,81

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Annex 9 to the Chicago Convention, Chapter 8, Standard 8.3. States Parties shall facilitate the entry, for the same purposes, of aircraft into their territory. Ibidem, standard 8.4. In order to ensure entry without delay of qualified personnel, when such a document is necessary, States shall not require any other travel document than a passport. Ibidem, standard 8.3.1. Art. 18 (Meaning of passage), United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; entry into force: 16 November 1994), unts 1833, p. 396. The expression “porosity” of territory was used in order to describe the phenomenon of the progressive loss of control over its territory by the State: “la porosité du territoire à des mouvements que l’Etat ne maîtrise plus est-elle devenue telle que le principe de territorialité perd de sa validité et est, en quelque sorte, marginalisé?” [the porosity of territory to movements that a State no longer masters, has it become such that the principle of territoriality loses its validity and is, in a way, marginalized?]. H. Ruiz Fabri, Immatériel, territorialité, et Etat, in Archives de philosophie du droit, 1999, p. 191. Annex 9, Standard 8.9.

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nevertheless it does not consider the issue of the distribution of relief supplies within the recipient State. 2.5

Arbitrary Refusal to Humanitarian Assistance in Situations of Disaster

During the elaboration of the Draft Articles on the Protection of Persons in the Event of Disasters, the International Law Commission abandoned the initially proclaimed human rights-based approach, which assumed as premise the focus on the individual affected by the disaster as rights-holder.82 Likewise, during debates at the General Assembly, States preferred to focus specifically on States’ rights and duties in situation of disasters rather than on victims’ entitlements. The Draft Articles were therefore framed reflecting a horizontal relation between the affected State and the assisting States and organizations, reaffirming the State-centric approach to disaster prevention and management by shifting the focus from human rights to States’ rights and obligations. At the same time, in spite of the initial traditional focus on the concept of sovereignty and non-intervention,83 the ilc Rapporteur subsequently admitted that States’ domestic sphere is “by no means absolute” and that regarding the life, health, and bodily integrity of individuals “humanitarian law and human rights law demonstrate that principles such as sovereignty and non-­ intervention constitute a starting point for the analysis, not a conclusion”.84 Given the State’s obligation to respect the human rights of its population, as defined by international instruments and General Assembly resolutions, sovereignty was interpreted more as a responsibility than a privilege.85 82 83

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UN Doc. A/CN.4/598 par. 51, p. 153. In the ilc Rapporteur’s original view, these principles imply that “a State affected by a disaster has the freedom to adopt whatever measures it sees fit to ensure the protection of the persons found within its territory. In addition, as a consequence, no other State may legally intervene in the process of response to a disaster in a unilateral manner: third parties must instead seek to co-operate with the affected State in accordance with Art. 5 [draft Art. 7], as provisionally adopted by the Drafting Committee”. Third report on the Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/629 par. 74. UN Doc. A/CN.4/629 paras 74–75. The doctrine on this issue is very vast. See C. Tomuschat, op.cit, pp. 223–224. unga Resolution 46/182, ibidem; “National governments none the less bear the sovereign responsibility to the best of their abilities to protect their citizens from disasters”. unga, Environment and Sustainable Development: International Decade for Natural Disaster Reduction. Early-Warning Capacities of the United Nations System with Regard to Natural Disasters. Report of the Secretary-General, 9 October 1995, A/50/526, p. 4. “Will note

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The focus in the ilc Draft Articles on the Protection of Persons in the Event of Disasters has consistently been shifted from a right-oriented to a duty-­ oriented approach, because “sovereignty also entails obligations”,86 in particular the obligation to ensure the protection of victims of disaster in its territory. According to Draft Article 10, under the heading “Role of the affected State”, it is the duty of the affected State “to ensure the protection of persons and provision of disaster relief assistance in its territory, or in territory under its jurisdiction or control”.87 Furthermore, although the Draft Article dealing with consent does not use the formulation “unable or unwilling”, found in other international texts,88 the consent of the affected State as a due requirement to relief operations89 is accompanied by two corollary obligations. They mitigate its rigidity, challenging and limiting, in extreme circumstances, the sovereignty of the affected State: (a) the affected State’s duty to seek assistance where its national response capacity is “manifestly” exceeded90 and (b) the affected State’s duty not to arbitrarily withhold its consent to external assistance.91 The duty of the affected State to seek external assistance, whenever the national response capacity is “manifestly” overwhelmed by a disaster, was the object of vivid debates within the International Law Commission. Some of its members believed that international law does not place such a duty upon

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that each Country has the sovereign responsibility to protect its citizens from natural disasters”. 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, p. 3. Finally, see Art. 3 (3) of Resolution 4, Adoption of the guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance, 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007. Fourth report on the protection of persons in the event of disasters by Eduardo ValenciaOspina, Special Rapporteur, A/CN.4/643, par. 52. During the debates of the Bruges Resolution, the majority of the Members of the Sixteenth Commission considered this legal principle as a “natural and non-controversial one”. A. Cassese, however, claimed that “such an international obligation is only in statu nascendi”. Institut de Droit International, Annuaire, vol. 70, Tome i, 2002–2003, Session de Bruges, 2003, p. 558. As an example of use of this formulation see the Mohonk Criteria for Humanitarian Assistance in Complex Emergencies, Art. 3 (4). While the inability of a State can be assessed according to objective criteria from the very outset of the disaster, the unwillingness requirement introduces a subjective criterion which may not always be easy to determine, in particular in cases of “implicit refusal”. See supra par. 2.2. Draft Art. 13 (1) (Consent of the affected State to external assistance). Draft Art. 11 (Duty of the affected State to seek external assistance); Art. 3 (3) (Primary responsibility of the affected State) Bruges Resolution on Humanitarian Assistance, Institute of International Law, Bruges Session, 2003. Draft Art. 13 (2) (Consent of the affected State to external assistance).

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­affected States and observed that, instead of a mandatory phrase, an hortatory formula should be used.92 In the end, however, the thesis that prevailed within the International Law Commission is that such a duty derives from the “affected State’s obligations under international human rights instruments and customary international law”.93 In fact, recourse to international support “may be a necessary element in the fulfilment of a State’s international obligations towards individuals where the resources of the affected State are inadequate to meet protection needs”.94 It is worth noting, however, that the duty to seek assistance was purposely chosen. The inclusion of a duty to request assistance would imply that an affected State’s consent is granted when a third actor has accepted the request.95 Thus, in the Draft Articles, the duty to seek assistance is shaped as obligation of conduct, rather than result. The duty should not be interpreted as one to obtain assistance, but rather to employ reasonable diligence in seeking it.96 As regards “Consent to external assistance” which “shall not be withheld arbitrarily” (draft Article 13 paragraph 2), this rule is also codified, with similar wording, in the Bruges Resolution on Humanitarian Assistance.97 The idea that the consent of the territorial State is the general, but not absolute rule, also appears in some non-binding instruments which, in this regard, use the conditional tense, opening the door to the provision of assistance without 92

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Fifth report on the protection of persons in the event of disasters by Eduardo ValenciaOspina, Special Rapporteur, A/CN.4/652, par. 28.The ifrc Guidelines on disaster relief use the conditional “should”: “If an affected State determines that a disaster situation exceeds national coping capacities, it should seek international and/or regional assistance to address the needs of affected persons” (emphasis added). Art. 3 (2) Resolution 4, Adoption of the guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance, 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007. ilc, Commentary to Art. 11, UN Doc. A/71/10, p. 53. Ibidem. UN Doc. A/CN.4/643 par. 44; Commentary to draft Art. 11 (Duty of the affected State to seek external assistance), par. 6. The Secretariat’s memorandum recognised that the discretion of the affected State on whether or not to make a request for assistance “may be evolving towards greater recognition of a positive duty on affected States to request assistance, at least where the domestic response capacity is overwhelmed by a disaster. This trend is in line with a growing emphasis, as a matter of international law, on the responsibility of States to protect their populations in the event of the onset of a disaster”. UN Doc. A/CN.4/590, par. 57. “Affected States are under the obligation not arbitrarily and unjustifiably to reject a bona fide offer exclusively intended to provide humanitarian assistance or to refuse access to the victims”. Art. viii (Duty of affected States not arbitrarily to reject bona fide offer of humanitarian assistance), Bruges resolution on Humanitarian Assistance.

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the request, or consent, of the affected State. According to the ifrc Guidelines, post-disaster relief “should” rather than “shall” or “must” be initiated only with the consent of the affected State and “in principle, on the basis of an appeal”.98 Similarly, Resolution 46/182 establishes that “humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country”.99 However, a correspondence to customary law of the Draft Article that prohibits arbitrary refusals of aid offers, in the event of disaster, is not clearly established.100 Several States, in their comments to the Commission, rejected the idea of a legal obligation under customary international law not to withhold consent arbitrarily.101 Other States sought additional clarification on the meaning of “arbitrarily”102 and on who determines whether a State’s decision to withhold aid is arbitrary.103 Others worried that, if consent was withheld arbitrarily, the draft article would allow other States to act without the affected State’s consent.104 Such different positions could lead to the conclusion that there is still no consolidated opinio iuris on the issue. Even at the debates of the Institut de droit international, prior to adoption of the Bruges Resolution on Humanitarian Assistance, it was argued that the rule prohibiting the arbitrary refusal of humanitarian assistance does not codify existing international law, or that it is an i­ nternational 98

99 100 101 102

103 104

Resolution 4, Adoption of the guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance, 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007, principle 10 (Initiation). unga Resolution 46/182, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, adopted on 19 December 1991, Annex i.3. For a detailed overview of the positions adopted by States in this regard, see Valencia-Ospina, Eight Report on Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/697, 2016, paras. 250–272. See, e.g., UN Doc. A/CN.4/696, p. 43 (Australia) (referring to Draft Art. 14, which was subsequently renumbered as Draft Art. 13); UN Doc. A/C.6/66/SR.23, p. 10, par. 42 (China) (referring to Draft Art. 11, which was subsequently renumbered as Draft Art. 13). UN Doc. A/C.6/66/SR.23, p. 8, par. 33 (Israel); UN gaor, 66th Sess., 25th mtg. p. 3, par. 10, UN Doc. A/C.6/66/SR.25 (9 December 2011) (Argentina) (referring to Draft Art. 11, which was subsequently renumbered as Draft Art. 13); UN Doc. A/C.6/67/SR.20, p. 4, par. 20 (India). E.g., UN gaor, 66th Sess., 24th mtg. p. 20, par. 118, UN Doc. A/C.6/66/SR/24 (Dec. 1, 2011) (Malaysia); UN Doc. A/C.6/66/SR.25, p. 4, par. 22 (Ireland). UN Doc. A/CN.4/696, pp. 40–41 (Austria); see also p. 44 (Germany) (“We concur that although the consent of the affected State shall not be withheld arbitrarily, consent is nevertheless an indispensable requirement for every provision of external assistance”) (referring to Draft Art. 14, which was subsequently renumbered as Draft Art. 13). See also UN Doc. A/C.6/66/SR.24, p. 10, par. 52 (Iran).

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humanitarian law rule whose application in situations of disaster may be conflicting with the principle of non-intervention.105 To start with, the very concept of arbitrary withholding of consent needs to be clarified. To date, there is still no definition or guidance in any treaty that regulates disaster assistance and, to this writer’s knowledge, the precise meaning of the concept has not been addressed by any international or national court, nor by any human rights treaty body. In the Nicaragua v. United States case, the International Court of Justice did not make any obiter dictum, nor any reference to disaster relief.106 Once again, similarly to humanitarian assistance during armed conflicts, a refusal is not arbitrary as long as it is based on valid reasons,107 and the International Law Commission, in its commentary, illustrates valid reasons. Firstly, if a State is capable and also willing to provide an adequate and effective response with its own resources, or has already accepted sufficient assistance from other sources, the refusal cannot be considered arbitrary.108 This is underscored by a combined reading of the two rules – the duty to seek external assistance when the national response capacity is “manifestly” overwhelmed and the prohibition of arbitrary refusal. International practice shows this to be the main reason for withholding consent. It is meaningless to dwell on the obvious: even in case of unmet needs, if the State offering its services does not offer its assistance in an exclusively humanitarian and impartial manner, and without any discrimination – the refusal will

105 See the debates preceding the adoption of the Bruges resolution in Institut de droit international, Annuaire, vol. 70, Part i, 2002–2003, pp. 400–569. According to the (no longer current, but worthy of note) 1975 Final Report on the Reappraisal of the Role of Red Cross “current international law, which is largely based on traditional practice, does not obligate a State in any way to accept emergency aid even when its population is in extremely grave danger”. D. Tansley (Ed.), Final Report: An Agenda for Red Cross, Geneva, 1975, p. 80. 106 According to A. De Urioste, “this case helped define humanitarian assistance and could possibly be extended to natural disaster humanitarian assistance. However, this is only an indirect connection, and the case does not make any direct pronouncements on natural disaster relief”. A. De Urioste, op.cit., p. 191. 107 Similarly, S. Sivakumaran: “the various components that make up the concept of “arbitrariness” have a unifying theme, namely whether the conduct in question can be justified. […] The concept of arbitrariness is, then, essentially a signifier for the unjustified and it is the justification for the denial of the consent that is crucial”. S. Sivakumaran, Arbitrary Withholding of Consent to Humanitarian Assistance in Situations of Disaster, iclq, vol. 64, 2015, p. 519. 108 This is explicitly specified by the ilc, UN doc. A/71/10, Commentary to draft Art. 13 (Consent of the affected State to external assistance), par. 8.

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not be arbitrary. This stems from the general principles that regulate humanitarian assistance, both in the context of armed conflicts and disasters.109 What still needs to be specified is the connection, highlighted by the International Law Commission, between human rights and arbitrary refusal to humanitarian assistance, as clearly identified by the following passage of the ilc commentary: “the duty of an affected State to ensure protection and assistance to those within its territory, or in territory under its jurisdiction or control, in the event of a disaster, is aimed at preserving the life and dignity of the persons affected by the disaster and guaranteeing the access of persons in need to humanitarian assistance”.110 2.6

Refusing Humanitarian Assistance and Human Rights

The International Law Commission deals with human rights in two distinct draft articles, namely Draft Article 4, which addresses the principle of human dignity in disaster response, requiring the respect and protection of this core principle in case of disasters and, along similar lines, in Draft Article 5, which addresses human rights and specifies that: “persons affected by disasters are entitled to the respect for and protection of their human rights in accordance with international law”.111 Firstly, the International Law Commission’s referral to “human rights” instead of a “right to humanitarian assistance”112 avoids what 109 Ibidem. 110 Emphasis added. Ibidem, paras. 4; 3. 111 The rule could seem self-evident, and therefore useless, because “there is no doubt that international human rights law applies to natural disasters”. C. Focarelli, Duty To Protect in Cases of Natural Disasters, op.cit., par. 13; K.C. Lauta, Human Rights and Natural Disasters, in S.C. Breau, K.L.H. Samuel (Eds.), op.cit., p. 94. According to G. Bartolini, the draft Article under analysis has nonetheless the merit to emphasise the centrality of human rights in a disaster context. Cf. G. Bartolini, Il progetto di articoli della Commissione del diritto internazionale sulla “Protection of Persons in the Event of Disasters”, op.cit., p. 694. 112 On the contrary, the Bruges Resolution on Humanitarian Assistance, adopted by the Institute of International Law, unequivocally affirms that “the victims of disaster are entitled to request and receive humanitarian assistance”. Art. 2 (2) (Right to humanitarian assistance). “L’Institut consacre ainsi au plan du droit international général un droit qui a été longtemps controversé. Selon l’Institut, la pratique des années 1980 et 1990 a fini par cristalliser un tel droit – selon des modalités de mise en oeuvre qui restent à définir –, dont les victimes de catastrophes au sens large jouissent directement en vertu de l’ordre juridique international” [In this manner the Institute consacrates at the level of general international law a right which had for long been controversial. According to the Institute, the practice of the 1980s and 1990s has brought about such a right – according to implementation modalities which are still to be defined – and victims of disasters, in a broad sense,

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is perhaps a fruitless doctrinal debate on whether a self-standing human right to humanitarian assistance exists or not under international law.113 Clearly, other human rights have already been flouted when a person in a situation of disaster is left without assistance. Consequently, it may be useless and redundant to conceive a new and autonomous human right to humanitarian assistance.114 directly enjoy it in virtue of the international legal order]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 861. 113 Different views exist among commentators regarding the existence of a human right to humanitarian assistance. Some confirm such a right and classify it as “une sorte de procédure de substitution aux droits de l’homme” [a sort of procedural substitution for human rights], because “de même qu’il y a un droit à réparation, il ya un droit à l’assistance, si les droits de premier rang ne sont pas remplis et sont bafoués” [just as there is a right to reparation, there is a right to assistance, if the primary rights are not fulfilled and are violated]. M.-J. Domestici-Met, Comments, in unesco, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995, p. 88. Others find that such a right is firmly established and “constituerait donc à l’heure actuelle un cas de jus cogens” [constitutes today a case of jus cogens]. H. Gros Espiell, Comments, ibidem, p. 103. The majority, however, deny or at least express scepticism vis-à-vis the idea of considering the right to humanitarian assistance an existing general human right. See: Y. Dinstein, The Right to Humanitarian Assistance, in Naval War College Review 2000, p. 77; P. Macalister Smith, The Right to Humanitarian Assistance in International Law, Revue de droit international de science diplomatiques et politiques, 1988, pp. 224–225, R.J. Hardcastle, A.T.L. Chua, Humanitarian Assistance: Towards a Right of Access to Victims of Natural Disasters, op.cit.; G. Kent, The Right to International Humanitarian Assistance, 2000, p. 13; H. Spieker, The Right to Give and Receive Humanitarian Assistance, in H.J. Heintze, A. Zwitter (Eds.) International Law and Humanitarian Assistance, Berlin, 2011, p. 29; A. De Urioste, op.cit., p. 203. See further the debates preceding the adoption of the Bruges resolution in Institut de droit international, Annuaire, vol. 70, Part i, 2002–2003, pp. 553–557. 114 “International human rights law does not explicitly address the right to protection and relief from disasters, but this objective is clearly implied”. G. Kent, The Human Right to Disaster Mitigation and Relief, 2001, available at http://www2.hawaii.edu/~kent/disaster. pdf. Similarly, N. Rodley, Interventions des partecipants, in unesco, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995, p. 146. “Se questi Patti non prevedono specificamente il diritto all’assistenza umanitaria, questo diritto rappresenta purtuttavia la sintesi del diritto alla vita, di quello alla salute, di quello a non essere sottoposti a tortura o a trattamenti disumani o degradanti e così via” [If these Pacts do not explicitly provide for the right to humanitarian assistance, this right is by no means the synthesis of the right to life, to health, the right not to be subjected to torture or inhuman or degrading treatment, and so on]. F. Lattanzi, Assistenza umanitaria e intervento di umanità, op.cit., p. 32. Other authors refer to those legal entitlements as “component rights” of the right to humanitarian assistance. Cf. D. Fisher, The Right to Humanitarian Assistance, in W. Kälin, R.C. Williams, K. Koser, A. Solomon (Eds.), Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges, Studies in Transitional Legal Policy, n. 41, 2010, p. 53.

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Secondly and most importantly, the concept of “protection”, generally contained in existing human rights international instruments, is used in tandem with “respect”. They form a holistic formula which reflects the nature and extent of obligations upon the States. Hence, the obligations that States have are not restricted to avoiding interference with people’s rights (“respect”). According to the Draft Articles, obligations may extend, as required by the applicable rules, to positive actions and measures that aim at ensuring an adequate response to individual needs (“protection”).115 When human rights intersect with disaster, several factors have to be considered to define the content of a State’s obligations. This will depend on the rules defining the rights in question, and on actual circumstances. In the Commentary to draft Article 5, the International Law Commission underlines that reference to “human rights” incorporates both the rights and their limitations in the sphere of international human rights law, which is also confirmed by the concluding phrase “in accordance with international law”. For example, in the International Covenant on Economic, Social and Cultural Rights, States’ obligations have inherent limitations, insofar as they are to be realized “progressively” and “to the maximum of […] available resources”.116 Restrictions to such rights may arguably be justified in times of emergency, when “available resources” are limited. Furthermore, reference to “human rights” obviously includes both non-derogable and derogable rights, as regulated by existing international agreements.117 In emergency disaster situations a State, on its own, may not be capable of providing the needed humanitarian assistance. What needs to be verified is whether the unable or unwilling State has the obligation to accept external humanitarian assistance deriving from its obligation to guarantee the enjoyment of human rights within its jurisdiction. In other terms, as long as the situation may be coped with using external humanitarian aid, are States entitled to use 115 On the issue of the positive obligations to protect human rights, see J-F. Akandji-Kombe, Positive Obligations Under the European Convention on Human Rights. A Guide to the Implementation of the European Convention on Human Rights, Human Rights Handbooks n. 7, Strasbourg, 2007; R. Pisillo Mazzeschi, Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme, Recueil des cours, vol. 1, 2008, pp. 187–496. 116 Art. 2 (1), International Covenant on Economic, Social and Cultural Rights. For a critique of the thesis affirming the programmatic character of this article, which instead contains a true obligation, see F. Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale, Milano, 1983, pp. 24–25. 117 On this issue, see J. Oraà, Human Rights in States of Emergency in International Law, ­Oxford, 1992; V. Eboli, La tutela dei diritti umani negli stati d’emergenza, Milano, 2010; E. Sommario, Derogation from Human Rights Treaties in Situations of Natural or Man-Made Disasters, in A. De Guttry and others (Eds.), op.cit., pp. 323–350. See infra in this paragraph.

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the disaster as a justification for not applying human rights standards? In case of a negative response, a refusal to accept humanitarian assistance in such circumstance may be qualified as arbitrary. The connection between the withholding of consent and a State’s human rights obligations emerges in a number of instruments such as the Bruges Resolution on Humanitarian Assistance which unequivocally states: “leaving the victims of disaster without humanitarian assistance constitutes a threat to human life and an offence to human dignity and therefore a violation of fundamental human rights”.118 The Bruges Resolution then specifies that the affected States “may not reject an offer nor refuse access if such refusal is likely to endanger the fundamental human rights of the victims”.119 On this issue, one of the most specific indications to date is the one provided by the Special Representative of the UN Secretary-General on internally displaced persons, according to whom “a State is deemed to have violated the right to an adequate standard of living, to health and to education, if authorities knew or should have known about the humanitarian needs but failed to take measures to satisfy, at the very least, the most basic standards imposed by these rights. State obligations thus include the responsibility to follow up on these situations of concern and assess relevant needs in good faith, and ensure that humanitarian needs are being met, by the State itself or through available assistance by national or international humanitarian agencies and 118 Art. 2 (1) (Right to humanitarian assistance) of the Bruges Resolution on Humanitarian Assistance, Institute of International Law, Bruges Session, 2003. Along similar lines, the General Assembly declared that the abandonment of the victims of natural disasters and similar emergencies without humanitarian assistance “constitutes a threat to human life and an offense to human dignity”. unga Resolution 45/100, Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations, adopted on 14 December 1990; unga Resolution 43/131, Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations, adopted on 8 December 1988. Finally, according to the World Disasters Report 2000 “calculated neglect in the wake of natural or technological disaster may well constitute a de facto death sentence”. ifrc, World Disasters Report 2000, p. 150. M-J. Domestici-Met: “l’assistance humanitaire est le prolongement naturel de ce droit à la vie, lequel ne prend sa signification que face à ses négations […] l’assistance humanitaire est une procédure de garantie du droit à la vie voire, au minimum, du droit de jouir de ses derniers instants de vie dans des conditions supportables” [Humanitarian assistance is the natural extension of this right to life, which only takes its meaning in the face of its negations […] humanitarian assistance is a procedure for guaranteeing the right to life or, at the very least, the right to enjoying the last moments of life in supportable conditions]. M-J. Domestici-Met, Aspects juridiques récents de l’assistance humanitaire, op.cit., p. 122. 119 Art. 8 (1) (Duty of affected States not arbitrarily to reject bona fide offer of humanitarian assistance), ibidem.

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­organizations, to the fullest extent possible under the circumstances and with the least possible delay”.120 Human rights treaty bodies as well as the European Court of Human Rights follow the same orientation. Firstly, the Human Rights Committee specifies that a State’s duty in the fulfilment of the right to life extends beyond “respect” and encompasses a duty to adopt positive measures, such as eradicating malnutrition and epidemics.121 In case of disaster response, it arguably includes the duty to accept assistance from the outside if the State’s own resources are insufficient to protect people under its jurisdiction.122 It is worth noting that, in its 2001 General Comment n. 29 on States of Emergency, the Human Rights Committee includes “a natural catastrophe” or “major industrial accident” among the situations of “public emergency which threaten the life of the nation”, justifying, under Article 4 of the International Covenant on Civil and Political Rights (iccpr), a derogation from the Covenant.123 However, the right to life is expressly stated – in Article 4 of the iccpr as well as in other human rights treaties’ derogation clauses – as non-derogable, and must therefore be respected even in time of public emergency. From this premise the International Law Commission concludes that “an offer of assistance that is met with refusal might thus under certain conditions constitute a violation of the right to life”.124 Along similar lines, the European 120 Emphasis added. W. Kälin (Representative of the Secretary-General), Report on the ­Human Rights of Internally Displaced Persons, U.N. Doc. A/65/282 (Aug. 11, 2010), par. 69. See also the Council of Europe Recommendation 2006 (6) on internally displaced persons, adopted on 5 April 2006: “Protecting internally displaced persons and their rights as well as providing humanitarian assistance to them is a primary responsibility of the state concerned; Such responsibility entails requesting aid from other states or international organisations if the state concerned is not in a position to provide protection and assistance to its internally displaced persons; This responsibility also entails not to arbitrarily refuse offers from other states or international organisations to provide such aid”. 121 iccpr, 1982, General Comment n. 6: the Right to Life (Art. 6), par. 5. 122 J.B. Heath points out that humanitarian assistance is strictly linked to the right to life. He anchors such a statement to the Human Rights Committee’s interpretation of the right to life as having “both positive and negative dimensions, implying that a State must take affirmative measures to protect the lives of people on its territory”. J.B. Heath, Disasters, Relief and Neglect; the Duty to Accept Humanitarian Assistance and the Work of the ilc, available at http://nyujilp.org/wp-content/uploads/2013/02/43.2-Heath.pdf 2011, p. 438. See also K. Loupajarvi, Is there an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons under International Law?, International Journal of Refugee Law, 15, 2003, pp. 692–693. 123 iccpr 2001, General Comment n. 29, Article 4: Derogations during a State of Emergency, adopted on 31 August 2001, par. 5. 124 ilc, Commentary to Draft Art. 13 (Consent of the affected State to external assistance), par. 4.

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Court of Human Rights’ case-law seems to support the thesis according to which persons in need have the right to receive assistance, and to be warned in advance in case of impending disaster. This derives from the recognition and protection of human rights and, above all, the right to life. Based on Article 2 (Right to life) of the European Convention on Human Rights, the European Court of Human Rights has affirmed that Member States shall adopt necessary and appropriate measures to safeguard the lives of those under their jurisdiction, also in situations of disasters.125 The link between human rights and acceptance of humanitarian assistance is made clearer in regard to other rights contained in the International Covenant on Economic, Social and Cultural Rights. Although this Covenant does not contain a list of non-derogable rights, the Committee on Economic Social and Cultural Rights, in some of its General Comments, points towards “minimum core obligations” which require State Parties to ensure the minimum essential levels of each of the rights enunciated. The Committee qualifies such core obligations as “non-derogable” consequently, “they continue to exist in situations of conflict, emergency and natural disaster”.126 It is the case of the obligation to fulfil the right to food, which “also applies for persons who are victims of natural or other disasters”.127 Most importantly, for a State party to attribute its failure to meet at least its minimum core obligations to a lack of available resources, it has to demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.128 The maximum of a State’s available resources includes not only the resources existing within a State, but also those available from the ­international community

125 “The scope of the positive obligations under Article 2 includes a duty to do everything within the authorities’ power in the sphere of disaster relief for the protection of that right”. Budayeva and others v. Russia, application n. 15339/02, decision of 20 March 2008, par. 175; Hadzhiyska v. Bulgaria, application n. 20701/09, decision of 15 May 2012, par. 15. See also Ӧneryildiz v. Turkey, application no. 48939/99, decision of 30 November 2004, par. 71; Kolyadenko and others v. Russia, application n. 17.423/05, decision of 28 February 2012, par. 166; Ӧzel and others v. Turkey, Applications nos. 14350/05, 15245/05 and 16051/05, decision of 17 November 2015, paras. 171–173. 126 icescr 2001, Poverty and the International Covenant on Economic, Social and Cultural Rights, adopted on 4 May 2001, par. 18. 127 icescr 1999, General Comment n. 12, The Right to Adequate Food (Art. 11), par. 15. 128 icescr 1990, General Comment n. 3, The Nature of States Parties’ Obligations, adopted on 14 December 1990, par. 10; icescr 1999, General Comment n. 12, The Right to Adequate Food (Art. 11), par. 17.

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through international cooperation and assistance.129 If for instance, a State party has resource constraints, making access to food impossible to those in need, it “has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food”.130 The Committee expressly stated that violations to the right to adequate food can occur, inter alia, through “the prevention of access to humanitarian food aid in internal conflicts or other emergency situations”.131 The same Committee addressed the issue of humanitarian assistance in elaborating the right to health under Article 12. From the General Comment, it can be inferred that the duty to cooperate is violated when States either deny or limit access to the needed health services or foodstuff provided by international organisations or third States.132 The above considerations highlight that human rights treaty bodies and the European Court of Human Rights extensively interpret obligations to protect human rights that rest upon State Parties. These include the duty to accept humanitarian assistance in disaster situations, whenever their own capacity fails. Thus, as long as the situation may be coped with using external humanitarian aid, States cannot use the disaster as a justification to deny the application of human rights standards. Refusal to humanitarian assistance in such case may

129 icescr 1999, General Comment n. 12, The Right to Adequate Food (Art. 11), par. 36; ­i cescr 1990, General Comment n. 3, The Nature of States Parties’ Obligations (Art. 2 (1)), par. 13. 130 icescr 1999, General Comment n. 12 (The right to adequate food (Art.11)), par. 17. Similarly, concerning the right to water: “if resource constraints render it impossible for a State party to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above”. General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), par. 41. 131 Emphasis added. icescr, General Comment n. 12, ibidem, par. 19. 132 Among the determinants of the right to health, as contemplated in Art. 12 of the Covenant, is a right to medical care. Par. 2 requires States to take steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases” as well as “the creation of conditions which would assure to all medical service and medical attention in the event of sickness”. According to the icescr, “States parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions of the United Nations General Assembly and of the World Health Assembly, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task to the maximum of its capacities”. icescr 2000, General Comment n. 14, The Right to the Highest Attainable Standard of Health (Art. 12), par. 40.

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result in the affected State committing an internationally wrongful act, and may be further qualified as arbitrary.133 2.7

What Happens When Humanitarian Assistance Is Arbitrarily Refused?

The International Law Commission did not deal with the legal consequences that arise when consent to humanitarian assistance is arbitrarily refused. When a refusal by the affected State determines a breach to its obligations, it will be held responsible. Obviously, this does not mean that other States have a right to conduct relief operations without the consent of the affected State, whenever it is unable or unwilling to cope with the disaster. Such hypothetical right is not supported by State practice and goes well beyond human rights treaty norms which generally only contemplate the right of contracting States, and possibly the victims, to appeal to a treaty-based monitoring body.134 The same holds true for relief flights. The Chicago Convention is far from contemplating a right upon Contracting States to perform relief flights, when the affected State arbitrarily refuses them. Yet, in the specific context of armed conflicts, according to an interpretation, when consent is arbitrarily withheld, unauthorised relief operations are permitted as long as they do not entail the use of force. In such circumstance, violation of the affected State’s territorial integrity would be justified as an action designed to ensure the respect of international humanitarian law, as required by Common Article 1 to the Geneva Conventions.135 However, ensuring respect for international humanitarian law under Common Article 1 cannot justify a violation of sovereignty and territorial integrity. It is generally agreed that this provision may not be relied upon as a justification for violating other rules of international law.136 The International Court of Justice upheld that “the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law”.137 Caution should n ­ onetheless 133 134 135 136

Cf. S. Sivakumaran, op.cit., p. 511; 527. Cf. C. Focarelli, Duty to Protect in Cases of Natural Disasters, op.cit., par. 26. Cf. M. Bothe, Relief Actions: The Position of the Recipient State, op.cit., pp. 95–96. In this sense see Y. Sandoz, C. Swinarski, B. Zimmermann (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, op.cit., par. 46. 137 Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgment of 27 June 1986, in icj Reports 1986, par. 242. The United

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be exercised before drawing general conclusions from this statement. In this passage of the decision the Court, in contrasting humanitarian assistance with military and paramilitary activities, concluded that humanitarian assistance, unlike the latter, does not constitute intervention.138 In its brief consideration of humanitarian assistance, the Court focused on the need to deliver such aid according to the principles of humanity, neutrality, impartiality, and non-­ discrimination for the beneficiaries. It did not address the issue of consent. Thus, it left the question open to whether such assistance involves or not interference when consent is arbitrarily withheld. Moreover, and most importantly, the Court was not considering the unauthorised provision of assistance into the affected State but, rather, the provision of relief items at the border to ­actors operating in-country. The fact that humanitarian assistance does not amount to intervention does not affect the need for relief operations to comply with other rules of international law, namely State sovereignty and territorial integrity.139 This conclusion is sustained by Article 4 of the Bruges Resolution on Humanitarian Assistance, adopted by the Institut de droit international, which for third States contemplates both the right to offer and to provide humanitarian assistance. What is called “right to provide” within this instrument is a mere rhetorical device, as it is once again subject to the affected State’s consent.140 To the extent that the consent by the State concerned lies at the root of humanitarian assistance, one cannot speak of a genuine right to provide such assistance through peaceful means. What needs to be ascertained is whether, and under what conditions, humanitarian assistance may eventually be delivered through coercive means, under authorisation of the UN Security Council.

States had brought assistance to the contras in and around Nicaragua. At the initial stages of the United States’ involvement, this embraced all sorts of supplies, including weapons, and only afterwards, in June 1985, Congress decided that the aid would have to be restricted to humanitarian assistance. 138 On the difference between humanitarian assistance and humanitarian intervention, see further infra par. 2.9. 139 In this sense, see also: D. Schindler, Humanitarian Assistance, Humanitarian Interference and International Law, in R.S.J. MacDonald, (Ed.), Essays in Honour of Wang Tieya, Dordrecht-Boston-London, 1993, pp. 698–699. 140 “States and organizations have the right to provide humanitarian assistance to victims in the affected States, subject to the consent of these States”. Art. 4 (2) (Right to offer and provide humanitarian assistance) Bruges Resolution on Humanitarian Assistance.

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Refusing Humanitarian Assistance and the Role of the Security Council

In order to act under Chapter vii, the UN Security Council “shall determine the existence of a […] threat to the peace, breach of the peace, or act of aggression”.141 In the light of this assessment, it identifies, case by case, the measures it deems appropriate to adopt. Thus, among the values deemed worthy of protection under the UN Charter – sovereign equality of States, self-determination of peoples, protection of human rights, international peace and security – for the sole purpose of maintaining or restoring international peace and security, the possibility is contemplated to use the measures under the terms of Chapter vii, namely the measures not involving the use of armed force (Article 41 of the UN Charter) and, as a last resort, those involving the use of armed force (Article 42 and following, Article 51 of the UN Charter). The Security Council enjoys nonetheless considerable discretion in qualifying a situation as a threat to international peace and security. By virtue of such wide discretion, the Security Council has gradually extended this notion. Firstly, qualifying a humanitarian emergency as a threat to international peace and security, becoming the premise to trigger Chapter vii. When the Security Council decides to intervene in a situation of humanitarian tragedy, all resolutions under Chapter vii connect humanitarian tragedy to a threat to international peace and security. This is not out of place since the drafters of the UN Charter clearly had in mind that respect for human rights and, more generally, economic and social well-being of the peoples of the United Nations, are prerequisites for international peace and security.142 In the post-Cold War era, the Security Council drew a very cautious and indirect link between humanitarian emergency and threats to international peace 141 Art. 39, UN Charter. 142 During the travaux préparatoires of the UN Charter, namely within the decision embodied in the Dumbarton Oaks Proposals, it was agreed that any organisation, established primarily for the purpose of maintaining international peace and security, must concern itself with the establishment of those conditions – economic, social, and intellectual – which are necessary for the existence of viable peace. It is further significant that, in the setting up of the League system after the end of World War i, a similar question arose and was answered in the same manner. Cf. L.M. Goodrich, E. Hambro, Charter of the United Nations, 2nd Edition, Boston, 1949, pp. 319–320. The connection between well-being, peace, and respect for human rights is further clearly established by Art. 55 of the UN Charter.

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and security. In Resolution 688 (1991) on assistance to Iraqi Kurds, a threat to international peace and security was not identified in the dramatic humanitarian conditions of that group, but in the repression “which led to a massive flow of refugees towards and across international frontiers and to cross-border incursions which threaten international peace and security”.143 Arguably the threat to international peace and security was not identified in Iraq’s repression of its population, but in cross border flow of refugees and cross border incursions caused by such repression. On this basis the Security Council required Iraq to allow immediate access by international humanitarian organizations to all those in need.144 Connection between humanitarian emergency and threats to international peace and security, on the contrary, was directly identified in the resolutions on Somalia and Rwanda, where the “magnitude of the human tragedy” itself, according to the Security Council, was a threat to international peace and security.145 The situation in Somalia, being exceptional, required an “exceptional response”146 by the United Nations for humanitarian purposes to deliver humanitarian aid. The Security Council therefore authorized Member States “to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations”.147 In Rwanda the Security Council also recognized the “magnitude of the humanitarian crisis” as “a threat to peace and security in the region” and, a­ cting 143 UN Security Council Resolution 688 (1991), adopted on 5 April 1991, see the preamble and par. 1. 144 Ibidem, par. 3. 145 “The magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security (emphasis added)”. UN Security Council Resolution 794 (1992), adopted on 3 December 1992. 146 According to the wording of UN Security Council Resolution 794 (1992), adopted on 3 December 1992. 147 Ibidem, par. 10. Given the ineffectiveness of the mechanism provided for in Articles 43 and the following, which aimed to create an armed force at the direct disposal of the Security Council, the use of military force has ended up being carried out by the UN Member States, and not directly by the United Nations, on the basis of a Security Council decision which authorises Member States “to use all necessary means”. N. Ronzitti notes that the sole UN Charter norm which refers to an authorisation of the use of force is Art. 53 on regional organizations. The legal basis of the UN Security practice authorising Member States to use force is to be found, according to some authors, in a particular custom formed within the United Nations; according to others in a combination of Art. 42 with Art. 48 of the UN Charter. Cf. N. Ronzitti, Introduzione al diritto internazionale, 3rd Edition, Torino, 2009, pp. 439–440. On this point, see also: B. Conforti, Le Nazioni Unite, Padova, 1994, pp. 203–204.

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under Chapter vii of the UN Charter, it authorized the Member States to use “all necessary means” to achieve the planned humanitarian objectives.148 The serious humanitarian emergency in the Great Lakes region, particularly in Zaire, led to its decision to intervene, and to the adoption of a resolution under Chapter vii.149 The Security Council therefore expanded the notion of what constitutes a threat to international peace and security, recognizing that (even merely internal) humanitarian emergencies may be “threats to international peace and security” under Article 39 of the UN Charter.150 Although the Security Council frequently addressed impeding humanitarian assistance, until recently it had never actually required that the State concerned consents to such operations. Instead, its focus was on creating security conditions to facilitate the delivery of assistance – a related but distinct issue that, in some cases, led to the use of force. More recently, in response to the humanitarian crisis driven by the Syrian conflict, the Security Council abandoned previous practice and started adopting a more proactive approach. In fact, in Resolution 2139 (2014), the Council made a binding demand to the sides in the Syrian conflict and other relevant States – those involved in cross-border relief operations or whose territory must be transited – to allow humanitarian 148 UN Security Council Resolution 929 (1994), adopted on 22 June 1994. 149 UN Security Council Resolution 1080 (1996), adopted on 15 November 1996. See also for Albania, UN Security Council Resolution 1101 (1997), adopted on 28 March 1997; UN Security Council Resolution 1114 (1997), adopted on 19 June 1997. In these resolutions, with the aim of creating a secure environment for the missions of international organisations in Albania, including those providing humanitarian assistance, the UN Security Council authorised the Member States participating in the multinational protection force to conduct their operation. For Sudan, see the Resolution 1769 (2007), adopted on 31 July 2007, where, acting under Chapter vii of the UN Charter, the UN Security Council “decides that unamid is authorised to take the necessary action, in the areas of deployment of its forces and as it deems within its capabilities in order to: (i) protect its personnel, facilities, installations and equipment, and to ensure the security and freedom of movement of its own personnel and humanitarian workers”. During the Yugoslav conflict, in Resolution 770, acting under Chapter vii, the Council called on all States to take all measures necessary to facilitate the delivery by humanitarian organisations of humanitarian assistance. As its demands remained unheeded, in Resolution 781 the Security Council imposed a ban on military flights in the airspace of Bosnia and Herzegovina, considering the measure to constitute “an essential element for the safety of the delivery of humanitarian assistance”. This example, however, relates to a situation in which the affected State, Bosnia and Herzegovina, consented to the relief, which was being impeded by its opponent. Cf. UN Security Council Resolution 770 (1992), adopted on 13 August 1992; UN Security Council Resolution 781 (1992), adopted on 9 October 1992. 150 Cf. B. Conforti, Le Nazioni Unite, op.cit., p. 175; N. Ronzitti, Diritto internazionale dei conflitti armati, op.cit., p. 62.

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relief operations, requiring that they consent to such operations.151 Then, in Resolution 2165 (2014) and Resolution 2258 (2015), the Security Council went even further, adopting a binding decision that United Nations humanitarian agencies and their implementing partners were authorised to deliver humanitarian assistance to people in need, across conflict lines and through specified border crossings use routes.152 In this case consent was not required. This practice clearly highlights that the Security Council in addition to making recommendations to the parties in an armed conflict to grant humanitarian access, may adopt binding measures that require that the parties and other relevant States consent to humanitarian relief operations, or may even impose such operations on parties. Shifting focus from armed conflicts to disasters, the first issue to deal with is whether disasters may result in situations that threaten international peace and security under the terms of Article 39 of the UN Charter. In its Memorandum the ilc Secretariat considered as “remote” the likelihood that a largescale disaster, in which the affected State fails to respond, is qualified as a threat to international peace and security. Doing so such qualification was not excluded a priori. Furthermore, it specified that “disaster relief measures could accordingly be authorized under Chapter vii of the Charter”.153 Along similar lines the Bruges Resolution on Humanitarian Assistance recognizes that “if a refusal to accept a bona fide offer of humanitarian assistance or to allow access to the victims, leads to a threat to international peace and security, the Security Council may take the necessary measures under Chapter vii of the Charter of the United Nations”.154 151 UN Security Council Resolution 2139, adopted on 22 February 2014, par. 6. 152 UN Security Council Resolution 2165, adopted on 14 July 2014, par. 2. The Security Council renewed his decision in Security Council Resolution 2258, adopted on 22 December 2015, par. 2. 153 ilc Secretariat, Memorandum, par. 250, p. 148, footnote. 154 Bruges Resolution on Humanitarian Assistance, adopted by the Institute of International Law in 2003, Art. 8 (3). At the time of the Myanmar crisis, the EU’s High Representative for Common Foreign and Security Policy affirmed: “At this moment the most important objective is to get the humanitarian aid inside the country. Many people – ordinary people – are suffering. We have to use all the means to help those people. The UN Charter opens some avenues if things cannot be resolved in order to get humanitarian aid into a country that has had a catastrophe, as in the case of Burma/Myanmar, where the leaders of the country do not allow the fast and well organised arrival of aid. By “all means” we mean all the means that are provided for in the UN Charter – whatever is necessary in order to help the people who are suffering”. Remarks by Javier Solana, EU High Representative for the cfsp on the Latest Developments in Burma/Myanmar, 13 May 2008, S165/08.

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With regard to the UN Security Council practice, recognition that there may be threats to international peace and security other than armed conflicts and related humanitarian emergencies is found in a statement by the President of the Security Council, adopted in 1992, after a meeting among Heads of State and Government of the Member States.155 The document recognizes that, next to traditional armed conflicts, non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to international peace and security.156 In early 2000, the Security Council held a meeting on the issue of the impact of aids on the African continent. In addition to the relations between aids and peacekeeping operations, it focused on the risks to stability and security that aids poses, if not properly kept under control. That same year, addressing these issues, the Council adopted Resolution 1308 (2000)157 and, in 2011, Resolution 1983 (2011),158 however without qualifying the spread of aids as a threat to international peace and security. Over the years, the Security Council has confirmed a broad interpretation of “threat to international peace and security”, including on its agenda meetings related to socio-economic threats such as climate change, food crises, and the interdependence between security and development. It is worth noting that some Permanent Member States have nonetheless firmly opposed such extension.159 Finally, the trend to extend the notion of “threat to international peace and security” was followed by other UN bodies.160

155 Cf. P. Tavernier, Les déclarations du Président du Conseil de Sécurité, afdi, vol. 39, 1993, pp. 86–104. 156 Note by the President of the Security Council, UN Doc. S/23500, 31 January 1992, p. 3. 157 UN Security Council Resolution 1308 (2000) on the Responsibility of the Security Council in the Maintenance of International Peace and Security: hiv/aids and International Peace-keeping Operations, adopted on 17 July 2000. 158 UN Security Council Resolution 1983 (2011), adopted on 7 June 2011. 159 With regard to climate change, for example, Russia and China among the permanent members have maintained that the UN Framework Convention on Climate Change is the appropriate venue within the UN system for deliberations on this issue. http://www .whatsinblue.org/2015/06/arria-formula-meeting-on-climate-change-as-a-threat-­ multiplier.php. 160 “The threats to peace and security in the twenty-first century include not just international war and conflict but civil violence, organized crime, terrorism and weapons of mass destruction. They also include poverty, deadly infectious disease and environmental degradation since these can have equally catastrophic consequences. All of these threats can cause death or lessen life chances on a large scale. All of them can undermine States as the basic unit of the international system”. Report of the Secretary-General, In larger freedom: towards development, security and human rights for all, UN Doc. A/59/2005, par. 78.

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The UN Security Council, acting under Chapter vii, has also adopted measures related to disasters. With Resolution 1908 (2010) the Security Council endorsed the Secretary-General’s recommendation to increase the overall force levels of the UN Stabilization Mission in Haiti (minustah)161 to support the immediate recovery, reconstruction and stability efforts in the aftermath of the 2010 earthquake.162 With the subsequent Resolution 1927 (2010), “acting under Chapter vii of the Charter of the United Nations”, the Security Council further extended minustah’s mandate to include additional peacekeeping deployment.163 In the two Resolutions the UN Security Council does not explicitly qualify the situation arising from that earthquake as a “threat to international peace and security”. However, the preamble of Resolution 1927 (2010), where the UN Security Council recognized “the significant devastation that has been suffered by the Government and people of Haiti, expressing concern regarding the new challenges and threats as a result of the earthquake of 12 January 2010”,164 clearly highlights that the deployment of additional police force (680 units) was necessary to tackle the effects of the disaster. In other words, the effects of the disaster constituted the factual premise for the UN Security Council to act under Chapter vii of the UN Charter. More recently, in Resolution 2177 (2014), the UN Security Council explicitly called the Ebola outbreak in Africa a “threat to international peace and security”.165 This example proves to be especially important for this analysis. 161 minustah was established by the Security Council “acting under Chapter vii”, “noting the existence of challenges to the political, social and economic stability of Haiti and determining that the situation in Haiti continues to constitute a threat to international peace and security in the region”. Resolution 1542 (2004), adopted on 30 April 2004. The UN mission succeeded a Multinational Interim Force, which had been authorised by the Security Council in February 2004, after President Bertrand Aristide departed Haiti for exile in the aftermath of an armed conflict which spread to several cities across the country. On that occasion, the Security Council, in determining that the “situation in Haiti constitutes a threat to international peace and security, and to stability in the Caribbean, especially through the potential outflow of people to other States in the subregion”, authorised the members States participating in the Multinational Interim Force “to take all necessary measures to fulfil its mandate”. See Security Council resolution 1529 (2004), adopted on 29 February 2004. 162 UN Security Council Resolution 1908 (2010), 19 January 2010, S/RES/1908 (2010). 163 UN Security Council Resolution 1927 (2010) [on the composition of the military and police components of the UN Stabilization Mission in Haiti (minustah)], 4 June 2010, S/RES/1927 (2010). 164 UN Security Council Resolution 1927 (2010), ibidem. 165 Resolution 2177 (2014), adopted on 18 September 2014. In this regard, a trend towards “securitisation” of global health in the United Nations system was identified. Cf. G.L. Burci, J. Quirin, Ebola, who, and the United Nations: Convergence of Global Public Health and

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In fact, although the Security Council has qualified various situations as “threats to international peace and security”, they have all been more or less caused by human activities. On the contrary, the Ebola outbreak in Africa is an entirely natural event. The case would be different if this epidemic was caused by the spread of a virus used as a weapon. In this case, the qualification by the Security Council would be within more traditional parameters.166 These two examples point to the fact that a humanitarian tragedy created by a disaster may be qualified as a “threat to international peace and security”. A fortiori, whenever it is exacerbated by the refusal of the affected State to accept external humanitarian assistance. At the same time, however, so far, the measures adopted by the UN Security Council in the context of disaster  ­response have always been based on the consent of the affected State. minustah was originally established by the Security Council following an appeal of Haiti’s new President at the time. Furthermore, despite evident fragility of State institutions, the UN Security Council Resolution adopted to implement the original mandate of the peacekeeping mission did not underline the inability of the territorial State to properly manage the disaster response. Rather, it emphasized “the ownership and primary responsibility of the ­Government and the people of Haiti over all aspects of the country’s stabilization”, and “the leading role of the Government of Haiti in its post-disaster recovery and reconstruction process”.167 To sum up, the need to conduct relief operations in full cooperation with national authorities was underscored. As regards the Ebola outbreak, the Presidents of the affected countries had sent a letter to the UN Secretary General requesting a comprehensive response.168 Thus, in both cases the consent of the affected States was not an issue. Moreover, in recognizing the Ebola outbreak as a “threat to international peace and security”, Resolution 2177 did not contain any coercive measure under the terms of Articles 41 and 42 UN Charter.169 It merely adopted some

166 167 168 169

International Peace and Security, available at https://www.asil.org/insights/volume/18/ issue/25/ebola-who-and-united-nations-convergence-global-public-health-and; see further: S. Urbinati, L’epidemia di Ebola in Africa occidentale come minaccia alla pace e alla sicurezza internazionali: quale ruolo per il Consiglio di Sicurezza?, rdi, 2016, pp. 826–855. Cf. L. Poli, La risoluzione n. 2177 (2014) del Consiglio di sicurezza delle Nazioni Unite e la qualificazione dell’epidemia di ebola come minaccia alla pace ed alla sicurezza internazionale, Diritti umani e diritto internazionale, vol. 9, 2015, n. 1, pp. 238–245. UN Security Council Resolution 1927 (2010), ibidem. See the preamble of the Resolution 2177 (2014), ibidem. Cf. S. Vezzani, Emergenze sanitarie globali e diritto internazionale: l’accesso agli agenti patogeni e alle relative sequenze genetiche, available at http://www.sidiblog.org/2016/05/27/

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non-binding measures, which seem to be classified among the provisional measures that the UN Security Council can adopt “to prevent an aggravation of the situation”, under Article 40 of the UN Charter.170 The Security Council never authorized the use of force in the context of disasters, and when France’s Foreign Minister Bernard Kouchner called on the UN Security Council to pass a resolution authorizing recourse to force to impose the delivery of aid to the survivors of Myanmar,171 resistance arose amid permanent, and non-permanent, Security Council members.172 However, the absence of precedents does not automatically and a priori exclude the feasibility, in the future, for the UN Security Council to adopt a resolution under ­Chapter vii of the UN Charter which qualifies a situation resulting from a disaster as a humanitarian emergency. The UN Security Council may demand

emergenze-sanitarie-globali-e-diritto-internazionale-laccesso-agli-agenti-patogeni-ealle-relative-sequenze-genetiche/. 170 That the measures under analysis are not binding is deducible from the wording of the resolution: the UN Security Council encourages, expresses concerns, calls on, urges, and requests (in French: “encourage”, “s’inquiète”, “demande”, “encourage vivement” and “prie”). Indeed, the International Court of Justice has clarified that “the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Art. 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council”. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, i.c.j. Reports 1971, par. 114. 171 For an analysis on the Myanmar case, see R. Barber, The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, A Case Study, Journal of Conflict & Security Law, 2009, pp. 3–34. 172 Especially China said that the situation in Myanmar was a natural disaster and therefore not an issue for the Security Council although there might be other forums of the UN which could take it up. Indonesia said that “there are other better forums to discuss the humanitarian dimension of the Myanmar situation” and that “the last thing we would want is to give a political spin to the technical realities and the situation on the ground”. South Africa also indicated that it did not feel that a strongly worded Council resolution was an appropriate way of engaging with Myanmar. See Security Council Report n. 4, Myanmar, available at http://www.securitycouncilreport.org/update-report/lookup-cglKWLeMTIsG-b-4130257.php?print=true. This induced A. Telec to state: “Chapter vii authorization cannot be considered a likely legal basis for disaster relief assistance at present”. A. Telec, Challenges to State Sovereignty in the Provision of International Natural Disaster Relief, in D.D. Caron, M.J. Kelly, A. Telesetsky (Eds.) The International Law of Disaster Relief, op.cit., p. 283.

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that the affected State allows relief operations conducted by relevant actors,173 or may even authorize Member States to use “all necessary means” to overcome the lack of consent, either because the affected State persistently refuses the needed humanitarian assistance,174 or because it is unable to give formal consent within a prompt timescale to react to an overwhelming disaster. Such circumstance occurs when there is total disintegration of the governmental authority or lack of effective control over the territory (so-called failed States).175 In conclusion, a broader formulation of the concept of “threat to international peace and security” embracing disasters is in line with the UN Security Council practice. An otherwise preventable humanitarian catastrophe may arise when the affected State’s capacity is overwhelmed by the magnitude of the disaster, making it unable or unwilling to protect disaster victims, while arbitrarily refusing any kind of external humanitarian aid. Of course, military measures may involve long lead times and do not necessarily result in improved aid to those in need. They may even intensify, rather than mitigate, the number of civilian casualties and pose greater risks to humanitarian workers, becoming counterproductive. For this reason, it would be vital to assess whether action is better than inaction. Force should be used as extrema ratio. The scale and intensity of the intervention should also be .

173 Cf. S. Sivakumaran, op.cit., p. 509. 174 The Guiding Principles on the Right to Humanitarian Assistance, adopted by the Council of the International Institute of Humanitarian Law and also applicable to disaster response, contemplate this possibility when they state that “the competent United Nations organs and regional organisations may undertake necessary measures, including coercion, in accordance with their respective mandates, in case of severe, prolonged and mass suffering of populations, which could be alleviated by humanitarian assistance. These measures may be resorted to when an offer has been refused without justification, or when the provision of humanitarian assistance encounters serious difficulties”. Emphasis added. Guiding Principles on the Right to Humanitarian Assistance, adopted in 1992, Principle 7. 175 As G. De Siervo notes, in cases of breakdown of national authorities, “humanitarian agencies assume direct protection responsabilities of the affected population” and “the coordination mechanisms are mainly internationally driven”. G. De Siervo, op.cit., p. 489. “On rappellera que dans certains cas ce principe [the principle of consent] ne s’applique pas, par exemple dans le cas des failed States. C’est tout aussi naturel: en cas d’effondrement des structures étatiques et d’absence de gouvernement central, il n’y a plus personne pour donner son consentement” [It will be recalled that, in some cases, this principle [of consent] does not apply, for example in the case of failed States. It is quite obvious: in the event of the collapse of State structures and a lack of a central government, there is no longer anyone in a position to give consent]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 865.

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l­imited to the minimum necessary to satisfy humanitarian needs and should end as soon as the situation is back to normal.176 2.9

Towards a Responsibility to Protect in Case of Disaster?

Considering the significant yet controversial practice, an issue that should not be overlooked concerns the right, or even duty upon individual States or international organisations, to intervene in other States to put an end to serious humanitarian emergencies, even through the use of force and, above all, without the authorization of the UN Security Council.177 Although the concept of “humanitarian assistance” may sound similar to “humanitarian intervention”, they are actually different. In a previously quoted passage on Military and Paramilitary Activities in and against Nicaragua judgement, the International Court of Justice stated that “the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law”.178 According to the Court, what distinguishes “strictly humanitarian aid” from humanitarian intervention is that the former is based on principles of impartiality and

176 Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 2004, par. 207. 177 On humanitarian intervention, see: O. Corten, P. Klein, Droit d’ingérence ou obligation de réaction, Bruxelles, 1992, pp. 109–164; R.B. Lillich, Humanitarian Intervention Through the United Nations: Towards the Development of Criteria, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 53, 1993, pp. 557–575; P. Malanczuk, Humanitarian Intervention and Legitimacy of the Use of Force, Amsterdam, 1993; A.G. Koroma, Humanitarian intervention and contemporary international law, Revue Suisse de droit international et de droit européen, vol. 5, 1995, pp. 409–416; S.D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order, Philadelphia, 1996; P. Hilpold, Humanitarian intervention: Is there a need for a legal reappraisal?, ejil, Vol. 12, 2001, pp. 437–467; J.L. Holzgrefe et R.O. Keohane (Eds.), Humanitarian Intervention: Ethnical, Legal and Political Dilemmas, Cambridge, 2003; R. Kolb, Note on Humanitarian Intervention, Revue internationale de la Croix-Rouge, Vol. 85, N° 849, 2003, pp. 119–134; A. Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law, Cambridge, 2003; D. Liakopoulos, L’ingerenza umanitaria nel diritto internazionale e comunitario, Padova, 2007; S. Recchia, Authorizing Humanitarian Intervention: A Five-Point Defence of Existing Multilateral Procedures, Review of International Studies, 2017, vol. 43, pp. 50–72. 178 Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgment of 27 June 1986, in icj Reports 1986, par. 242.

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non-discrimination.179 The objective of humanitarian assistance is to help those in distress, regardless of the legality or legitimacy of the State’s conduct. It simply takes into account their suffering. In its judgement, the Court refers to the discriminatory character of the assistance provided and to the objectives of the United States, therefore excluding that, in this particular case, assistance could “escape condemnation as an intervention in the internal affairs”.180 Humanitarian intervention, on the other hand, strives to put an end, if necessary through the use of force, to inhumane treatment perpetrated by a government, or by a party in a conflict, against a population. Its nature is partial. The intervener takes a stand, even when goals are purely humanitarian.181 A distinguishing factor between humanitarian relief operations and humanitarian intervention entails the use of force or threat to use it, which characterizes the latter and not the former.182 The right to humanitarian intervention (droit d’ingérence), and the responsibility to protect doctrines183 are both openly based on a primary responsibility of the territorial State and a subsidiary responsibility of third States in case of inability or unwillingness of the former. States are assumed to be entitled, or even obliged, to intervene in cases where the State manifestly fails to protect its 179 “If the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes allowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering” and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents”; “An essential feature of truly humanitarian aid is that it is given “without discrimination” of any kind”. Ibidem, par. 243. 180 M-J. Domestici-Met: “la Cour n’a pas condamné l’aspect interventionniste, qu’elle n’a pas nié que nécessité puisse faire loi, pourvu que ce soit une nécessité purement humanitaire” [The Court did not condemn the interventionist aspect, it did not deny that n ­ ecessity could make law, provided that it is a purely humanitarian necessity]. M-J. Domestici-Met, Aspects juridiques récents de l’assistance humanitaire, op.cit., p. 135. 181 In similar terms: D. Schindler, Protection des droits de l’homme en cas de désintégration ou d’incapacité de l’autorité étatique, Manuscrit des conférences données à l’Institut international des Droits de l’Homme à Strasbourg du 17 au 21 juillet 1995, pp. 18–19. 182 Cf. E. Vitta, op.cit., pp. 660–661. 183 In legal doctrine, it has been argued that there is no difference between responsibility to protect and droit d’ingérence, except from terminology, which has shifted from “right” to “responsibility”. This new term emphasises the need for protection rather than the erosion of the territorial State’s sovereignty. In sum, the responsibility to protect is not anything new, but rather a reconceptualisation of the old humanitarian intervention presented in a more “attractive” way. Cf. L. Boisson de Chazournes, L. Condorelli, La responsabilità di proteggere: una nuova veste per una nozione già acquisita, in i. Papanicolopulu, T. Scovazzi (Eds.), Conflitti armati e situazioni di emergenza: la risposta del diritto internazionale, Milano, 2007, pp. 5–12.

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population.184 As generally known, the most peculiar – and criticized – issue related to the responsibility to protect doctrine has been the possibility of military intervention without any UN Security Council authorization. The underlying dilemma is well expressed in the following passage: “must the international community stand idly by while millions of human beings are being massacred [or, in case of disaster, left to their fate without assistance] just because in the Security Council a permanent member holds its protective hand over the culprit? Must national sovereignty be understood as the paramount rule of international law that overrides any other value? Giving an affirmative response to these two questions would totally deprive international law of its essential value content”.185 One may argue that respect for the Rule of Law should be sacrificed in the name of human compassion, which would imply allowing certain unilateral actions in cases where collective security mechanisms do not work.186 The 2000 iciss Report on the “Responsibility to protect” paved the way for both unilateral and collective military intervention in countries experiencing “large scale loss of life” or “large scale ethnic cleansing”.187 Moreover, it also specifically referred to “overwhelming natural or environmental catastrophes, where the State concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened”188 along with other situations in which the responsibility to protect might be invoked. The issue at stake is whether the responsibility to protect, and its whole underlying theoretical premises, could apply to disasters. 184 See also: L. Boisson de Chazournes, L. Condorelli, ibidem, pp. 5–12. In this regard, the concept of “vertical dimension” of solidarity was also used and conceived as “a means of rescuing a population encountering serious dangers that cannot be protected by its own State. This is a form of solidarity where the relationship is between States and populations of other States (and between international organisations and populations), hence vertical”. L. Boisson de Chazournes, Responsibility to Protect: Reflecting Solidarity?, in R. Wolfrum C. Kojima (Eds.), Solidarity: A Structural Principle of International Law, Heidelberg, 2010, p. 102; for the concept of vertical relationship between one or more States providing assistance and the population of another State, see also D. Campanelli, Principle of solidarity, mepil 2011, par. 9. 185 The author further argues that “humanitarian intervention can be no more than a remedy of last resort. But is should be available as such a remedy”. C. Tomuschat, op.cit., p. 224; 226. 186 Cf. O. Corten, The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate, ejil, 2005, p. 808. 187 International Commission on Intervention and State Sovereignty (iciss), The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty, December 2001, par. 4.19. 188 Ibidem, par. 4.20.

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Invoking state of necessity as justification for humanitarian intervention was not directly addressed by the International Law Commission.189 Special Rapporteur Crawford avoided expressing whether or not humanitarian intervention is lawful. He nonetheless argued that the issue should be put in terms of existence or not of a specific primary norm allowing humanitarian intervention, rather than in terms of possibility to invoke the state of necessity.190 This position was finally adopted by the International Law Commission which, in the Commentaries to Draft Article 25, specifies that “the question whether measures of forcible humanitarian intervention, not sanctioned pursuant to Chapters vii or viii of the Charter of the United Nations, may be lawful under modern international law is not covered by article 25”.191 Additionally, this circumstance which precludes wrongfulness has a specific limit: acting upon necessity a State cannot “seriously impair an essential interest of the State or States towards which the obligation exists”,192 and there is no doubt that in case of humanitarian intervention the essential interest of territorial integrity and independence of a State (the one towards which force is used) is necessarily at stake.193 International practice along with the lack of a general, consistent opinio juris do not make it easy to identify a primary norm of customary law on this issue. The diuturnitas is scarce as far as gross violations of human rights is concerned, and absent in situations of disasters. In a number of operations justified as humanitarian intervention, a bias emerged casting a shadow over the intervenor’s true motives. These can therefore be challenged as valid precedents. Consider, for instance, the Tanzanian invasion of Uganda in 1979 to free the country from Idi Amin’s regime, or sending Vietnamese troops to 189 For a criticism of this choice of the ilc, cf. I. Johnstone, The Plea of « Necessity » in International Legal Discourse: Humanitarian Intervention and Counter-Terrorism, Columbia Journal of Transnational Law, 2005, pp. 337–348. 190 J. Crawford, Second Report on State Responsibility, 1999, doc. A/CN.4/498/Add.2, par. 286. 191 Commentary to Draft Art. 25 (Necessity), par. 21. 192 Art. 25 (Necessity), par. 1 (b), Draft Articles on International Responsibility. 193 “To the extent that the violation of territorial integrity involves exercising control of territory or contributes to the inability of the State where the operations are conducted to exercise or regain control of territory, such an operation would, arguably, constitute a serious impairment of that State’s essential interests and, therefore, would not be justifiable as a situation of necessity”. Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, op.cit., par. 148. In similar terms, according to F. Salerno, one could not invoke the state of necessity in order to preclude wrongfulness in humanitarian intervention, because this circumstance cannot be invoked against the essential interest of the State towards which the force is used. Cf. F. Salerno, Diritto internazionale. Principi e norme, 2nd edition, Padova, 2011, p. 228.

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­ ambodia to topple the Khmer Rouge regime. Such cases do not enable a solid C opinio iuris reaffirmation, particularly considering that the intervening States had justified their actions relying upon – and abusing – other more traditional grounds such as legitimate defence.194 More specifically in a disaster context, the refusal of humanitarian aid – as in the emblematic case of Myanmar – attracted criticism both from States and public opinion, though State sovereignty was respected. A review of the drafting history of pertinent General Assembly resolutions on humanitarian assistance reveals that States have routinely raised the principle of non-intervention. States have expressly submitted their support of General Assembly resolutions which contain the duty that rests upon the affected State to protect the people under its jurisdiction, on condition that they are not interpreted as creating a duty or right to interfere in the domestic affairs of the affected State.195 States showed concern that, once turned into a treaty, the ilc Draft Articles on the Protection of Persons in the Event of Disasters may pave the way for intervention in their internal affairs. This factor has conditioned the overall travaux préparatoires and ultimately prevented the duty to request or accept humanitarian assistance from being introduced in the final draft. The Special Rapporteur’s position on the issue was drastic: “no other State [than the affected one] may legally intervene in the process of response to a disaster in a unilateral manner”.196 Additionally, even if humanitarian intervention crystallized in customary law, at some point in time prior to the outbreak of the Second World War,197 the question should be re-examined after the entry into force of the UN Charter. The UN Charter comprehensively prohibits the use of force in inter-State relations, except in the case of individual or collective self-defence, c­ ontemplated 194 Cf. U. Villani, La guerra del Kosovo e il c.d. diritto di intervento umanitario, in U. Villani (Ed.) La protezione internazionale dei diritti umani, Roma, 2006, p. 102. In particular, it has been commented in this respect that “les tentatives des uns et des autres de justifier juridiquement leurs comportements a constitué le meilleur hommage que le vice a rendu à la vertu” [the attempts made by those involved to legally justify their behaviour constitutes the greatest tribute of vice to virtue]. M.G. Kohen, L’emploi de la force et la crise du Kosovo: vers un nouveau désordre juridique international, Revue belge de droit international, 1999, p. 148. 195 ilc Memorandum by the Secretariat, A/CN.4/590, par. 22. 196 Third report on the protection of persons in the event of disasters by Eduardo Valencia, A/CN.4/629, par. 74. 197 Cf. J.L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the U.N. Charter, California Western International Law Journal, 1974, pp. 234–235; contra P. Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force, op.cit., p. 11.

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by Article 51 of the UN Charter, and under the terms of Chapter vii of the UN Charter. If it was deemed necessary explicitly to mention the right of selfdefence, although it constitutes an “inherent right”, then other traditional rules authorizing recourse to force should also have been included in the Charter. For this reason, admitting the possibility for States to use force, without authorization from the UN Security Council, to coerce the recalcitrant State in accepting the delivery of humanitarian assistance, seems inconsistent with the UN Charter. The difficulty to affirm the existence of a customary norm on humanitarian intervention can also be deduced from the main documents drafted to reform the UN Charter, including the UN Secretary-General’s Report of 2005.198 Such documents affirm the responsibility upon Member States to protect in case of gross violations of fundamental human rights, but military intervention must be used as a last resort, in conformity with Chapter vii of the UN Charter, and with the authorization of the UN Security Council.199 Clearly, as long as the UN Security Council’s authorization is needed, the responsibility to protect doctrine does not add anything new to the UN Charter, as currently applied.200 Even under such a limited interpretation, the UN Secretary-General has narrowed the responsibility to protect only to four categories of mass atrocity crimes namely: genocide, war crimes, ethnic cleansing, and crimes against humanity. “Calamities such as hiv-aids, climate-change or the response to natural disasters” were excluded considering that a broader interpretation of the responsibility to protect may undermine the political support, making its implementation even more difficult.201 Considering the widespread political resistance to extending such doctrine to disasters, and recalling the outlined position of the Secretary-General, the ilc Rapporteur deemed it necessary to exclude the responsibility to protect from the scope of the Draft Articles on the Protection of Persons in the Event of Disasters.202 Bearing the above in mind, the lawfulness of humanitarian intervention seems to be excluded, particularly in case of disasters. In Military and Paramilitary Activities in and against Nicaragua the International Court of Justice 198 Report of the Secretary-General, In larger freedom: towards development, security and human rights for all, UN Doc. A/59/2005. 199 Ibidem, paras. 125–126; 135. 200 Cf. O. Corten, Le droit contre la guerre. L’interdiction du recours à la force en droit international contemporain, Paris, 2008, p. 777. 201 Report of the Secretary-General, Implementing the Responsibility to Protect, A/63/677, 12 January 2009, par. 10 b; see also Report of the Secretary-General, Responsibility to protect: State responsibility and prevention, 9 July 2013, par. 8. 202 Report on the work of the sixty-first session (2009), A/64/10, Chapter vii, par. 164.

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stated that “the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of the contras. The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States”.203 In sum, the asserted humanitarian motive cannot exempt military action from the verdict that it constitutes recourse to force.204 2.10

Airdrops and the Defence of Necessity

Whether a more limited use of force than humanitarian intervention tout court could be justified by one of the circumstances that preclude wrongfulness,

203 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. i.c.j. Reports 1986, par. 268. 204 “The responsibility to protect doctrine appears at the moment far from being given unequivocal support by either the UN Security Council or the generality of States, particularly in respect of natural disasters”. C. Focarelli, Duty to Protect in Cases of Natural Disasters, op.cit., par. 33; “Une offre accompagnée d’une menace d’utilisation de la force ou d’autres actes d’intimidation devient par là même une intervention illicite” [An offer accompanied by a threat of use of force or other acts of intimidation thereby becomes unlawful intervention]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 865. “Such offers of assistance shall not, particularly by virtue of the means used to implement them, take a form suggestive of a threat of armed intervention or any other measure of intimidation”. Resolution of the Institute of International Law “The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States”, adopted in Santiago de Campostela on 13 September 1989, Art. 5. Contra F. Salerno argues that a specific norm of international law allows humanitarian intervention by States to protect essential interests of the international community. Cf. F. Salerno, op.cit., p. 228. Other authors referred to the nato intervention in Kosovo and deduced therefrom that a growing tendency in favour of humanitarian intervention was emerging, which was mostly supported by Western members of the international society. Cf. C. Antonopoulos, The nato Military Action against the Federal Republic of Yugoslavia (Kosovo) and the International Law on the Use of Force, Revue hellénique de droit international, 1999, pp. 411–457. On the notion of forcible humanitarian countermeasures, see A. Cassese, Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, ejil, 1999, pp. 23–30. According to Cassese, nato’s action in Kosovo may be taken as evidence of an emerging doctrine in international law allowing the use of forcible countermeasures to prevent a State from committing large-scale atrocities on its own territory in circumstances where the Security Council is incapable of responding adequately to the crisis. However, this practice has so far remained quite isolated.

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and thus be lawful,205 still needs to be verified. Generally, the state of necessity can be invoked in case of a disaster to justify emergency protection measures by neighbouring States, even if such measures violate the sovereignty of the State of origin. This premise is true on condition that the measures are the only means to protect the essential interests of the neighbouring States against grave and imminent peril and that they do not seriously impair the essential interests of the State of origin of the disaster.206 The case that needs to be assessed in this work is nonetheless different, because it has to do with the legitimacy of a limited use of force to ensure humanitarian assistance to the population of another State, that is affected by disaster. The Report on International Responsibility of States – Special Rapporteur Ago – had already suggested, in 1980, such a possibility.207 That is, within the prohibition of the use of force, the possibility to distinguish between aggression, prohibited by ius cogens, and other more limited – “less serious”, using Ago’s words – uses of force which are not prohibited by ius ­cogens.208 While by definition no circumstance can preclude the wrongfulness of an act ­committed in violation of a peremptory norm, circumstances precluding wrongfulness may nonetheless be invoked to excuse a violation of general international law. Emphasizing such distinction contained in Ago’s report, some law scholars have drawn attention to the circumstance that precludes wrongfulness of the state of necessity to affirm the lawfulness of a limited use

205 Cf. N. Ronzitti, Diritto internazionale dei conflitti armati, op.cit., p. 47; 51. Chapter v (Circumstances precluding wrongfulness), Responsibility of States for Internationally Wrongful Acts 2001, yilc, 2001, vol. ii (Part Two). 206 Art. 25 (Necessity), ibidem. “Si potrà pertanto invocare lo stato di necessità allo scopo di intervenire in territorio altrui per prevenire una catastrofe naturale che metta in pericolo la popolazione delle regioni di confine e sempreché l’urgenza impedisca di ottenere il consenso dello Stato territoriale” [It is therefore possible to invoke the state of necessity for the purpose of intervening on the territory of other States in order to prevent a natural disaster from endangering the people of the border regions as long as urgency prevents from obtaining the consent of the territorial State]. N. Ronzitti, Introduzione al diritto internazionale, op.cit., p. 418. In similar terms A. Boyle, J. Harrison, Environmental Accidents, mepil, 2008, par. 7. 207 R. Ago, Addendum to the Eight Report on State Responsibility, p. 39, par. 56. 208 The International Court of Justice also stated that: “it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”. Cf. Military and Paramilitary Activities in and against Nicaragua, op.cit., par. 191; the outlined passage is then quoted in Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement of 6 November 2003, icj Reports 2003, par. 51. According to A.B. Mansour, practice suggests that the general norm prohibiting the use of force does not have a peremptory character. Cf. A.B. Mansour, op.cit., p. 447.

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of armed force for humanitarian purposes, lato sensu.209 Besides, the International Law Commission itself envisaged potential acts that imply a use of force justified by necessity, namely “certain actions by States in the territory of other States which, although they may sometimes be of a coercive nature, serve only limited intentions and purposes bearing no relation to the purposes characteristic of a true act of aggression”.210 According to this interpretation, the state of necessity may be used to justify unilateral humanitarian interventions, without authorization from the Security Council – and of course without the consent of the territorial State – as long as the aim is to protect nationals abroad,211 or to put an end to a genocide or to the commission of international crimes.212 In parallel with the thesis that affirms the lawfulness of such humanitarian interventions, the “state of necessity” seems to justify some incursions into foreign territory or relief airdrops, as long as the State that is unable or unwilling arbitrarily refuses the necessary humanitarian assistance. In particular, airdrops of humanitarian relief are relatively brief and do not seriously impair the territorial integrity of the affected State, being less intrusive than the landing of relief flights and, of course, even more so than ground intervention.213 There have been cases when relief was dropped without the consent of the affected State. For example, in 1987, after Sri Lanka refused India’s offer of humanitarian assistance – directed mostly to the Tamil group – India decided to 209 Cf. P. Benvenuti, Lo stato di necessità alla prova dei fatti, in M. Spinedi, A. Gianelli, M.L. Alaimo (Eds.), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti. Problemi e spunti di riflessione. Milano, 2006, pp. 150–151; T. Christakis, Unilatéralisme et multilatéralisme dans la lutte contre la terreur: l’exemple du terrorisme biologique et chimique, in K. Bannelier et at. (sous la direction de), Le droit international face au terrorism après le 11 septembre 2011, Paris, 2002, pp. 173–176. 210 Report of the ilc, 32nd session, ilcy 1980, vol. ii, p. 44, par. 23. 211 Cf. J. Raby, The State of Necessity and the Use of Force to Protect Nationals, in Canadian Yearbook of International Law, 1988, pp. 253–271. 212 Cf. M. Bettati, Un droit d’ingérence?, Revue générale de droit international public, 1991, pp. 639–651. 213 M. Bothe goes even further by arguing that relief flights do not constitute a use of force on the condition that the aircraft used are unarmed. According to the author, such flights are a “simple” border violation, with the consequence that they may be justified taking into account the previous illegal conduct of the other State. Cf. M. Bothe, Relief Actions: The Position of the Recipient State, op.cit., p. 96. Along similar lines, I. Brownlie, in opposition to Kelsen, argues that there is no evidence, either in the discussions in San Francisco or in State or United Nations practice, supporting that the “use of force” in Art. 2 par. 4 of the Charter includes both the use of arms and a violation of international law involving an exercise of power in the territorial domain without use of arms. Cf. I. Brownlie, International Law and the Use of Force by States, Oxford, 1963, pp. 361–362. On the possible qualifications of airspace violations in terms of use of force, see also: Ibidem, pp. 363–364.

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use the Indian Air Force to air-drop supplies. Sri Lanka considered the action unacceptable, and a violation of its independence, sovereignty and territorial integrity, but it did not prevent the delivery of humanitarian assistance.214 In general, when acting upon necessity, the essential interest that must be safeguarded does not necessarily have to be that of self-interest of the State invoking necessity, but may also be a common interest to the international community, namely the interest to prevent imminent and severe suffering of a population.215 Firstly, draft Article 25 states that necessity may be invoked to safeguard an “essential interest”, without the qualifying words “of the State”, which appeared in an earlier draft.216 The ilc Report, 32nd session, considers the implication of such omission: “the common feature of these cases [the ilc is referring herein to cases of coercive actions, which are potentially open to be justified by necessity] is, first, the existence of grave and imminent danger to the State, to some of its nationals or simply to human beings – a danger of which the territory of the foreign State is either the theatre or the place of origin, and which the foreign State has a duty to avert by its own action, but which its unwillingness or inability to act allows to continue”.217 The ilc Commentaries on Draft Article 25 clearly specify that necessity consists “in a grave danger either to the essential interests of the State or of the international community as a whole”.218 214 As the aircraft entered the Sri Lankan airspace, their commanders asked for formal clearance, but Sri Lanka did not respond to the signals. The planes nevertheless continued on course, descended to 1,200 feet, and dropped food and medicine. 215 In this sense, see also: C. Ryngaert, Humanitarian Assistance and the Conundrum of ­Consent: A Legal Perspective, Amsterdam Law Forum, 2013, p. 15; E.C. Gillard, The Law Regulating Cross-Border Relief Operations, op.cit., p. 373; P. Benvenuti, op.cit., p. 151. Contra F. Salerno: “la logica di una simile disposizione è di limitare “dall”esterno’ il ricorso all’esimente, non certo di farvi rientrare la tutela di interessi estranei al soggetto che la invoca. Lo stato di necessità non può quindi essere invocato a giustificazione dell’intervento coercitivo all’estero per ragioni di umanità o di altro genere”. [The rationale of such a provision is to limit “from the outside” the possibility of invoking such a circumstance precluding wrongfulness, rather than to include the protection of interests extraneous to who invokes it. Therefore, the state of necessity cannot be invoked to justify coercive intervention abroad for humanitarian or other reasons]. F. Salerno, op.cit., p. 442. 216 Draft Art. 33, Report of the ilc on the work of its 32nd Session, 1980, ilcy 1980, vol. ii. 217 Emphasis added. Ibidem, p. 44, par. 23. 218 In this context, the “essential interest” of the international community to avoid imminent and severe suffering of a civilian population is also expressed, although cautiously, by the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. This Guidance nonetheless points out that necessity is more frequently invoked in relation to environmental emergencies. The case of the Liberian Torrey Canyon petrol tanker is often cited as an emblematic example of the application of such “environmental necessity”. In 1967, while the tanker was damaged in international waters,

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It is axiomatic that use of force by necessity should be commensurate with and proportionate to the human rights exigencies on the ground. It would not be justifiable in case of a slowly unfolding crisis which still presents avenues for diplomatic resolution. 2.11

Ascertaining the Arbitrariness of Refusal

Determining whether consent was withheld arbitrarily may be complicated, not only legally, but also factually. The affected State may deny the seriousness of the situation and the urgency of external relief aids. It could claim that it still has the ability to cope with the emergency. However, not everything depends on its own assessment. In the context of armed conflicts and disasters, the General Assembly and the Security Council can ascertain the arbitrariness of a refusal to humanitarian assistance. To this end, the General Assembly may be called upon by any State, Member or non-Member of the United Nations.219 Although such assessment cannot be formally binding, being object of a General Assembly resolution, the concerned State should take it into account, seeing the duty to cooperate that UN Member States have in the human rights domain.220 The Security Council can then assess the arbitrariness of a refusal to humanitarian assistance motu proprio or on the basis of information provided by the Economic and Social Council,221 or triggered by the General Assembly222 or by the Secretary-General223 or, finally, by any State, Member or non-Member of the United Nations.224 The powers the Security Council have been given by Article 34 of the UN Charter, to open an investigation on “any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely

219 220 221 222 223 224

it was bombed and then sunk by British aircraft to prevent it from continuing to pollute the sea and causing even more serious damage to the British coasts. Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, op. cit., par. 147. The right of States “to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests” has subsequently been explicitly contemplated in Art. 221 of the United Nations Convention on the Law of the Sea. Art. 35 (1) and (2), UN Charter. Art. 56, UN Charter. Art. 65, UN Charter. Art. 11 (3), UN Charter. Art. 99, UN Charter. Art. 35 (1) and (2), UN Charter.

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to endanger the maintenance of international peace and security”,225 might well be exercised to ascertain the arbitrariness of a refusal to humanitarian assistance. The wording of Article 34 of the UN Charter,226 and its collocation in Chapter vi, could lead to the conclusion that the Security Council can only investigate in order to decide whether or not to exercise its powers to peacefully settle disputes (Chapter vi). Indeed, Chapter vii does not contain a similar norm. However, it would be absurd that the UN Security Council has the power to investigate when it exercises its functions of peaceful settlement of disputes, and not when it exercises its functions under Chapter vii. Thus, the norm confers upon the Security Council a general power to investigate prior to exercising its powers either under Chapter vi, or also under Chapter vii, based on its results.227 When the Security Council acts under Article 34, its aims are to investigate a dispute or situation on the basis of a potential threat to international peace and security. In the end, the Security Council may not only verify, or exclude, such potential threat, but it may also determine it to be a more serious circumstance among those foreseen by Article 39 of Chapter vii: (an actual, and not merely potential) threat to the peace, breach of the peace, or act of aggression.228 As long as the Security Council determines the existence of any of the situations mentioned in Article 34, it may “recommend such terms of settlement as it may consider appropriate”.229 It may also determine the arbitrariness of a refusal by the territorial State to allow access to the victims, even if only in terms of a recommendation. Whereas, if the Security Council concludes that the humanitarian emergency is one of the circumstances referred to in Article 39, its assessment can be made binding, possibly referring to the report on the findings, in a resolution adopted under Chapter vii. Thus, it may even end up ascertaining, in a binding manner, the arbitrariness of a refusal to allow access to the victims.230 225 226 227 228 229 230

Emphasis added. See the emphasis added. Cf. B. Conforti, Le Nazioni Unite, op.cit., pp. 159–160. B. Conforti, ibidem, p. 159. Art. 37 (2), UN Charter. S. Sivakumaran considers it inappropriate for the Security Council to decide in first instance on the arbitrariness of the refusal of humanitarian assistance in the context of disasters, because to get the Security Council involved is to politicise the situation, or to politicise it to a greater degree. For this reason, he would prefer the UN Emergency Relief Coordinator or the Inter-Agency Standing Committee to conduct the needs assessment of the affected State. According to his proposal, they may then refer the situation to the Secretary General, who may in turn refer it to the Security Council. Cf. S. Sivakumaran, op.cit., pp. 529–530.

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A distinction is therefore necessary. Depending on the magnitude of humanitarian tragedy, the arbitrariness of refusing humanitarian assistance may reach different thresholds, with different legal consequences. As long as the UN Security Council establishes a situation as “likely to endanger the maintenance of international peace and security” (Chapter vi), the use or the threat to use armed force to overcome the barrier of State sovereignty, and to deliver humanitarian assistance, given the general prohibition contained in Article 2 paragraph 4 of the UN Charter, is not possible. Therefore, an arbitrary refusal in such circumstances only implies potential sanctions – recommended either by the General Assembly or by the Security Council231 – against the State which refuses the needed humanitarian assistance. On the contrary, as long as the Security Council qualifies, in accordance with Article 39 of Chapter vii, the humanitarian emergency as an actual, and not merely potential, threat to international peace and security, the Security Council, acting under Chapter vii, may authorize Member States to use “all necessary means” to ensure the delivery of humanitarian assistance. In this case Member States, authorized by the UN Security Council, are truly entitled with a right to provide humanitarian assistance. Both the General Assembly and the Security Council have in practice qualified as arbitrary a number of denials of humanitarian access in the context of armed conflicts, but not in situations of disasters.232 231 Cf. F. Lattanzi, Assistenza umanitaria e intervento di umanità, op.cit., p. 35. 232 The ascertainment of the arbitrariness of the refusal to allow access to the victims in the course of an international conflict might also be carried out by the Fact-finding Commission, established in 1991 pursuant to Art. 90 of Additional Protocol i, which could examine whether the State has the assistance capacity it claims to have, whether foreign humanitarian assistance is consistent with the principles of neutrality, impartiality, and non-discrimination, and whether the security situation puts humanitarian actors at risk. Note that the High Contracting Parties are not required to accept the competence of this Commission: Art. 90 (2)(a) of Additional Protocol i provides, in a clause which is somewhat reminiscent of Art. 36 (2) of the Statute of the International Court of Justice, that “the High Contracting Parties may at the time of signing, ratifying or acceding to the Protocol, or at any other subsequent time, declare that they recognise ipso facto and without special agreement, in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to enquire into allegations by such other Party, as authorised by this Article”. For assessments on the Commission: E. Kussbach, The International humanitarian fact-finding commission, 43 iclq 1994-1, pp. 174–185; F. Kalshoven, The International Humanitarian Fact-Finding Commission: A Sleeping Beauty, Humanitäres Völkerrecht, 2002–4, p. 214; A. Mokhtar, Will This Mummification Saga Come to an End? The International Humanitarian Fact-Finding Commission: Art. 90 of Protocol 1, Penn State International Law Review 2003–22, pp. 243–311; L. Condorelli, The International Humanitarian Fact-Finding Commission: an Obsolete Tool or a Useful Measure to Implement International Humanitarian Law?, International Review of the Red Cross 2001–84, p. 401.

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In response to the non-international armed conflict in Syria, the UN Security Council, in a presidential statement adopted in October 2013, condemned the denial of humanitarian assistance on the part of the conflicting parties. Furthermore, it also recalled that “arbitrarily depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law”.233 A few months later, in Resolution 2139 of 21 February 2014, the Security Council almost verbatim “recall[ed] that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law”.234 The Security Council made similar, and even more precise statements in Resolution 2165, once again in relation to Syria,235 and in Resolution 2216 in reference to the situation in Yemen.236 Likewise, the UN General Assembly, in dealing with the situation in Syria, stressed “that the magnitude of the humanitarian tragedy caused by the conflict in the Syrian Arab Republic requires immediate action to facilitate the safe and unimpeded delivery of humanitarian assistance throughout the entire country […] condemns all cases of arbitrary denial of humanitarian access, and recalls that depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law”.237 It therefore demanded “that the Syrian authorities take immediate steps to facilitate the expansion of humanitarian relief operations and lift bureaucratic impediments and other obstacles”.238

233 Emphasis added. U.N. President of the S.C., Statement by the President of the Security Council, U.N. Doc. S/PRST/2013/15 (October 2, 2013). 234 Emphasis added. Security Council Resolution 2139, adopted on 21 February 2014, pmbl. par. 5. One month after the resolution was adopted, the UN Emergency Relief Coordinator stated that “the rules of International Humanitarian Law are also clear. The continued ­withholding of consent to cross-border or cross-line relief operations, particularly of commodities privileged throughout the Geneva Conventions – like food, water, medical treatment and supplies, or shelter – is arbitrary and unjustified”. Emergency Relief Coordinator and Under-Secretary General for Humanitarian Affairs, Valerie Amos, Statement to the Press on Syria, 28 March 2014, available at http://reliefweb.int/report/syrian-arab-republic/ emergency-relief-coordinator-and-under-secretary-general-humanitarian-3. 235 “Arbitrarily withholding consent for the opening of all relevant border crossings is a violation of international humanitarian law”. Emphasis added, Security Council Resolution 2165, adopted on 14 July 2014, pmbl. par. 15. 236 Security Council Resolution 2216, adopted on 14 April 2015, par. 10. 237 Emphasis added. 238 unga Resolution 68/182, Situation of human rights in the Syrian Arab Republic, adopted on 18 December 2013, paras. 14, 15.

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Of course, arbitrary refusal to humanitarian assistance may entail a breach to human rights obligations incumbent upon the affected State, even in situations which do not reach the threshold of a human tragedy.239 Assessing the existence of human rights violation in the course of an armed conflict or in the wake of a disaster, and arbitrary refusal to humanitarian assistance, can be carried out according to the mechanisms established by universal and regional treaties on human rights. “Expert treaty bodies” have been monitoring the compliance of State Parties with their treaty obligations. Generally, after studying the situation, they issue comprehensive reports, recommendations, and individual communications regarding the conduct of State Parties.240 Although not always binding, according to the International Law Commission, as long as they pertain specifically to a State Party, the State Party may be obliged to take into account and react thereto, based on the duty to cooperate contemplated in some of the human rights treaties.241 2.12

The Duty to Provide Humanitarian Assistance upon Request

E. De Vattel, commenting on the solidarity of several States after the 1755 Lisbon earthquake stated: “si un peuple est désolé par la famine, tous ceux qui ont des vivres de reste doivent l’assister dans son besoin […]. L’assistance, dans cette dure extrémité, est si essentiellement conforme à l’humanité, qu’on ne voit guère de nation un peu civilisée, y manquer absolument. […] De quelque calamité qu’un peuple soit affligé, la même assistance lui est due” [if a popoluation is struck by famine, all those who have sufficient provisions must assist it, based on its need […]. Assistance, in such severe situation, is in such conformity with the dictates of humanity, that no civilised nation unquestionably can fail to respond. […] Whatever the nature of the disaster that overtakes a nation, some kind of help is nonetheless due].242 At the same time, however, 239 See supra par. 2.6. 240 Cf. F. Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale, op.cit., pp. 197–239. 241 ilc, Chapter vi, Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, doc. A/71/10, pp. 236–237. “As their name indicates [the final views by the Human Rights Committee] are not proper decisions, lacking legally binding force. Nonetheless, States Parties cannot simply ignore them, but have to consider them in good faith (bona fide) […]. Not to react at all to a finding by the hrc [Human Rights Committee] would appear to amount to a violation of the obligations under the iccpr”. C. Tomuschat, Human Rights Committee, mepil, 2010, par. 14. 242 E. De Vattel, Le droit des gens (ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains), London, 1758, ii, 1, p. 8. This excerpt needs to be read in the light of Vattel’s conception of international law which, according to him, originates

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he also specified that the duty to provide other countries with assistance did not mean that States should “s’exposer eux-mêmes à la disette” [expose themselves to scarcity]. He sufficiently specified the duty, leaving it up to the country’s discretion whether and how to provide disaster relief.243 Unlike other areas of international law – where States frequently act in their own self-interest, even when cooperating with others – the entire premise of disaster relief is that States and other actors should act in favour of another State, not out of self-interest, but be motivated by what comes under the banner of solidarity. In fact, almost all disaster relief efforts involve multiple actors: assisting States, transit States, the receiving State, inter-governmental relief organizations and non-governmental relief organisations. They all cooperate in solidarity to provide relief to the victims. The troubling escalation of disasters in the last decades has given rise to several systems of international co-operation, therefore giving evidence that the practice of assistance to affected States exists. Criticism of the way Japanese and Chinese governments have contributed with derisory sums in the aftermath of the floods in the Philippines proves that the expectation for States to provide assistance is strong.244 However, whether, and to what extent, there is a duty under international law to assist States affected by disasters, upon their request, requires careful analysis. A general duty to assist in cases of disasters may be conceived as a general principle of law recognized by civilized nations.245 In fact, domestic systems generally contemplate the omission to rescue as a crime.246 However, such a domestic law principle arguably cannot be transferred into the international legal system. As generally known, it is not easy for criminal law to influence

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from the law of nature: the same law regulating the relationships among human beings regulates the relationships between those communities of human beings which are the States: “le droit des gens n’est originairement autre chose que le droit de la nature appliqué aux nations” [The law of nations is originally none other than the law of nature applied to nations]. Ibidem, p. 4. E. De Vattel further argued that “mais si ce peuple a de quoi payer les vivres qu’on lui fournit, il est très-permis de les lui vendre à juste prix; car on ne lui doit point ce qu’il peut se procurer lui-même; et par conséquent on n’est point obligé de lui donner pour rien des choses qu’il est en état d’acheter” [But if this people can afford to pay for the provisions they are provided with, it is perfectly permissible to sell them to them at a fair price; after all, they do not have a right to what they can procure themselves; and therefore there is no obligation to give them for free anything they are able to buy]. Ibidem, p. 8. Cf. P. Okowa, Principle 18, Notification and Assistance in Case of Emergency, op.cit., pp. 488–489. Art. 38 (1) (c), Statute of the International Court of Justice. Cf. B. Vukas, Humanitarian Assistance in Cases of Emergency, mepil, 2013, par. 11.

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the international legal system, which only recognizes as (international) crimes the violations of norms which protect the fundamental interests of the international community.247 Secondly, considering the extent of human suffering worldwide, criminalizing non-assistance would lead to having too many States committing wrongful acts.248 It is then emblematic that, even in case of aggression, each State is free, both according to the UN Charter and general ­international law, to defend or not the State requesting defence, unless contemplated differently in a treaty.249 Scholars are divided between those who unconditionally affirm the existence, under general international law, of such a duty,250 and those who, on 247 Cf. P. Picone, La distinzione tra norme internazionali di “jus cogens” e norme che producono obblighi “erga omnes”, rdi, 2008, pp. 5–38. 248 “On sait la difficile poussée du droit pénal dans l’ordre international, qui reste limitée aux crimes, c’est-à-dire aux violations des normes essentielles à la sauvegarde des intérêts fondamentaux de la communauté internationale. Et les souffrances humaines sont trop nombreuses pour que l’on risque de s’engager dans la voie d’une pénalisation de la non-assistance, qui créerait trop d’Etats criminels” [We are aware of how difficult it is for criminal law to influence the international order, which remains limited to crimes, i.e. violations of the norms essential to safeguarding the fundamental interests of the international community. And there is too much human suffering to risk embarking on the path of criminalising non-assistance, which would create too many criminal States]. M-J. Domestici-Met, Aspects juridiques récents de l’assistance humanitaire, op.cit., p. 124. 249 Art. 52, UN Charter. 250 V.S. Mani: “it is submitted that there is a duty on the part of every country to extend whatever assistance it can to mitigate the situation in the disaster-struck region [where a State’s disaster response to protect and mitigate the hardship of its citizens is grossly inadequate]. This is a humanitarian duty flowing from the respect for human life and human dignity”. V.S. Mani, Towards an International Disaster Response Law: Quest for a Role for International Space Law, in isro-iisl Space Law Conference 2005 “Bringing space benefits to the Asian region”, Bangalore, 2005, p. 45; P. Macalister-Smith affirms the existence of an erga omnes norm obliging to provide humanitarian assistance based on the principle of international solidarity and on elementary considerations of humanity. Cf. P. Macalister Smith, International Humanitarian Assistance. Disaster Relief Actions in International Law and Organization, Dordrecht, 1985, p. 163. According to R.M.R.B. Nawinne, “the States are obliged under customary international law to prevent, mitigate and assist affected States in the event of natural disasters and technological disasters”. R.M.R.B. Nawinne, The Principles of State Responsibility and Humanitarian Assistance in the Context of Disaster Management, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007, pp. 746–747; H. Gros Espiell: “l’existence d’un droit à l’aide humanitaire va nécessairement de pair avec la reconnaissance de devoirs liés à ce droit. […] De même que ce droit est individual et collectif, le devoir qui lui est lié est exigible de tous les individus, de l’Etat e de la communauté internationale” [The existence of the right to humanitarian assistance necessarily implies the recognition of corresponding duties. […] In the same way as the right is both individual and collective, the corresponding duty is an obligation imposed on all human beings, the State, and the international community].

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the contrary, argue that assistance to countries affected by disasters depends on a free or highly discretionary choice.251 However, the first opinion seems to go too far and is not supported by coherent State practice, while the validity of the second one needs to be ascertained. Based on general international law, it seems that third States do not have a duty to provide humanitarian assistance upon request. The International Law Commission extended to disasters the previously mentioned dictum of the Military and Paramilitary Activities in and against Nicaragua judgement, according to which strictly humanitarian aid “cannot be regarded as unlawful intervention, or as in any other way contrary to international law”.252 Indeed, Draft Article 12 attributes to third States the right to offer (literally “may offer”) humanitarian assistance. At the same time, such norm only concerns “offers” of assistance, not its actual “provision”. Therefore “such offers, whether made unilaterally or in response to a request”, cannot be construed as recognition of the existence of a legal duty to assist.253 H. Gros Espiell, Les fondements juridiques du droit à l’assistance humanitaire, in unesco, Le droit à l’assistance humanitaire, in unesco, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995, p. 19. 251 B. Jakovljevic, International Disaster Relief Law, Israel Yearbook on Human Rights, 2004, vol. 34, pp. 257–264. According to this author, post-disaster relief is not compulsory, unless it is otherwise provided for by an international agreement. As a consequence, there would be neither a duty to provide humanitarian assistance, nor a right to receive it. In this sense, R. Evans argues that assistance to countries affected by disasters is the result of a highly discretionary choice made by each State on the basis of internal pressures, taking into particular account the public opinion and budgetary constraints. Cf. R. Evans, The Humanitarian Challenge: A Foreign Policy Perspective, African Security Review, 1997, 6–2, p. 28; see also T.R. Saechao, Natural Disasters and the Responsibility to Protect: From Chaos to Clarity, Brooklyn Journal of International Law, 2007, p. 665; “States have no duty to provide humanitarian assistance to victims in other States”. G. Kent, Rights and Obligations in International Humanitarian Assistance, Disaster Prevention and Management, vol. 23 No. 3, 2014, p. 851; R. Kolb: “Comment, en effet, poser à charge de tout État un tel devoir positif ? Cela semblait aller trop loin, tout en s’écartant de la pratique effective et des prévisions realists” [How, indeed, could such a positive duty be imposed upon any State? This seems to go too far while deviating from actual practice and realistic predictions]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 866; D.D. Caron: “a norm may be said to be “soft” by virtue of its content, the authority of its source, or its likely enforcement. A duty to assist appears soft in each of these dimensions”. D.D. Caron, Les aspects internationaux des catastrophes naturelles et industrielles, op.cit., p. 99. 252 ilc Report, 2016, p. 57, par. 3. See also Art. 5 of the Resolution of the Institute of International Law “The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States”, adopted in Santiago de Campostela on 13 September 1989. 253 Commentary to Draft Art. 12 (Offers of external assistance), par. 2, UN Doc. A/71/10. Some authors have conceived a right to offer humanitarian assistance as the counterpart of the

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International practice and most international treaties indicate that the requested State may decide whether or not it is in the position to provide humanitarian assistance. Indeed, very few treaties unconditionally contemplate an obligation to assist upon request. One such case is the Treaty on the Functioning of the European Union which states, “should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities”.254 Nevertheless, implementation of such a treaty norm in EU secondary law shows that the “Member State to which a request for assistance is addressed through the Union Mechanism shall promptly determine whether it is in a position to render the assistance required and inform the requesting Member State of its decision through the cecis [Common Emergency Communication and Information System]”.255 Another example is the 1991 Agreement establishing the Caribbean Disaster Emergency Response Agency which requests its Member States “to identify, maintain in a state of readiness and make available immediately on request by the Co-ordinator relevant material and human resources in the event of disaster”.256 Except in such limited cases, international agreements contemplate an obligation to assist upon request, which obligation is however explicitly subject to the capacity of the assisting State. Other agreements merely contemplate an obligation upon the requested State to notify whether or not it is in the position to provide the assistance required. For example, the 2002 Nordic Public Health Preparedness Agreement between Denmark, Finland, Iceland, Norway and Sweden explicitly states that cooperation in the area of health (and social services) encompasses “assistance on occasions when one of the contracting States suffers an emergency or disaster”,257 and “the Nordic countries undertake to: 1. provide assistance to one another upon request, as far as possible under the provisions of this

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fundamental human rights at stake in post-disaster situations. Cf. A. Stoffels, Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps, International Review of the Red Cross, 2004, p. 521; 533; R. Kolb, ibidem, p. 864. Emphasis added. Art. 222 (2) (Title vii, Solidarity Clause), Treaty on the Functioning of the European Union. Art. 15 (4) (Responding to disasters within the Union), Decision No 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism (Text with eea relevance), OJ L 347, 20.12.2013, pp. 924–947. Art. 13 (s) (Undertaking of participating States), 1991 Agreement establishing the Caribbean Disaster Emergency Response Agency. Art. 3 (Scope), 2002 Nordic Public Health Preparedness Agreement.

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Agreement”.258 Since the assisting State determines the extent of its ability, the “obligation” becomes merely potestative, at least in its specific content.259 The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations is an example of the second category of agreements. According to this treaty, the State Party to which a request of telecommunication assistance is directed is not obliged to provide assistance, but rather it shall “promptly determine and notify the requesting State Party whether it will render the assistance requested, directly or otherwise, and the scope of, and terms, conditions, restrictions and cost, if any, applicable to such assistance”.260 The assisting State may also terminate the provision of assistance by giving notification.261 The Health Regulations contemplate that, upon request, who States Parties “should” provide support to who-coordinated response activities,262 where the conditional verb “should” suggests that the provision of assistance, far from being an obligation, is the 258 Emphasis added. Art. 4 (Commitments of the participating countries), ibidem. 259 The agreement of the Black Sea Economic Cooperation (bsec) on collaboration in emergency assistance provides that a party needing assistance in case of a natural or manmade disaster can “require assistance from the other Parties”, subject to the limitation that “the Parties shall render one another assistance according to their possibilities”. Art. 3 (3) Agreement among the Governments of the Participating States of the Black Sea Economic Cooperation (bsec) on Collaboration in Emergency Assistance and Emergency Response to Natural and Man-made Disasters, 15 April 1998. See also the Agreement on Cooperation between the Kingdom of Spain and the Argentine Republic on Disaster Preparedness and Prevention and Mutual Assistance in the Event of Disasters of 1988, Art. 9, “which the requested State considers feasible and available”. 260 Art. 4 (3) (Provision of Telecommunication Assistance), Tampere Convention. Since no obligation exists to render the assistance requested, and no right correlatively exists to receive it from the requested State, the Convention merely imposes upon the requested State a procedural duty. In light of this, it is possible to better understand the reason why, as long as the request of assistance is made directly to another State Party, the requesting State Party shall in any case, and as soon as possible, inform the United Nations Emergency Relief Coordinator serving in the capacity of “operational coordinator” for purposes of the treaty: another assisting State shall promptly be found in case of refusal or termination by the first requested State. Art. 4 (1) (Provision of Telecommunication Assistance), Tampere Convention. Contra: “the implementation of this international treaty recognizes the rights of natural disaster victims by ensuring an effective response from the telecommunications field”. T.R. Saechao, Natural Disasters and the Responsibility to Protect: From Chaos to Clarity, op.cit., p. 704; Y. Zhao, Disaster Management and the Tampere Convention, Journal of East Asia and International Law, 2008, p. 151. 261 Art. 6 (1) (Termination of assistance), Tampere Convention. The norm, however, makes it compulsory for the States Parties involved to undertake a consultation “bearing in mind the impact of such termination on the risk to human life and ongoing disaster relief operations”. 262 Art. 13 (5) (Public health response), Health Regulations.

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object of a mere recommendation. These examples and several other agreements make it clear that a potential provision of assistance is, as a general rule, merely voluntary.263 A further argument to support our thesis, excluding a general duty to assist upon request, is found in General Comment n. 12 and 14, which use the conditional “should”: “States have a joint and individual responsibility, in accordance with the Charter of the United Nations, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task in accordance with its ability”.264 Contrary to the thesis sustained herein, some authors argue that the obligation upon each State, Party to the International Covenant on Economic, Social and Cultural Rights, to recognize the right “to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions” and to “take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent”265 ought to translate into an obligation to assist another State Party in time of disaster.266 Yet such a point of view is not applicable since the Covenant ­creates 263 Art. 2 (3) (Provision of assistance), Convention on Assistance in the Case of a Nuclear Accident Or Radiological Emergency, 1986; Art.12 (Mutual Assistance), Convention on the transboundary effects of industrial accidents Helsinki 1992; Art. 4 (3) (Request for Assistance and information exchange), Agreement among the Governments of the Participating States of the Black Sea Economic Cooperation (bsec) on collaboration in Emergency Assistance and Emergency Response to natural and man-made Disasters, 15 April 1998; Administrative agreement concluded between Italy and France on assistance in case of fires (Intesa amministrativa tra il dipartimento della protezione civile italiana e la direzione della protezione civile francese. Ordine di operazioni per l’intervento di mezzi aerei bombardieri d’acqua in caso di mutua assistenza per gli incendi boschivi), 19 June 2004; Art. 11 (Joint Emergency Response through the Provision of Assistance), asean Agreement on Disaster Management and Emergency Response, 2005; Art. 3 (1) (Provision of Assistance), Wildfire Arrangement Between the Department of the Interior and the Department Of Agriculture Of the United States of America and the National Rural Fire Authority of New Zealand, 2 October 2009; Art. 8 (3) (Joint emergency response through provision of assistance), saarc Agreement on Rapid Response to Natural Disasters, Addu, 11 November 2011. 264 Emphasis added. cescr General Comment No. 12: The Right to Adequate Food (Art. 11), par. 38. See also the almost verbatim formula contained in cescr General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), par. 40. 265 Art. 11, International Covenant on Economic, Social and Cultural Rights. 266 Cf. J.W. Samuels, The Relevance of International Law in the Prevention and Mitigation of Natural Disasters, in L.H. Stephens, S.J. Green (Eds.), Disaster Assistance. Appraisal, ­Reform and New Approaches, New York, 1979, p. 263.

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obligations upon each State Party to recognize and protect the established rights within its jurisdiction. Obviously, this then does not apply to the almost worldwide geographical scope of application of the Covenant. The aforementioned “appropriate steps” cannot be elaborated into an obligation to assist other States Parties in case of disaster.267 This is clearly evident when considering that, according to the cited norm, cooperation is “based on free consent”. As long as an international instrument contemplates an autonomous obligation to co-operate in the provision of prompt assistance, what seems to be excluded is the lawfulness of conduct of a State Party which, once requested, systematically refuses to provide any kind of assistance.268 Consider for instance the case of the Tampere Convention. While it does not oblige States Parties to provide telecommunications assistance upon request,269 it contains an autonomous obligation to co-operate to facilitate the provision of prompt

267 Cf. S. Skogly, Beyond National Borders: States’ Human Rights Obligations in International Cooperation, Antwerp, 2006, p. 81. “In relation to Art. 2 (1), the discussions focused on the reference to international assistance and cooperation. The representatives of the United Kingdom, the Czech Republic, Canada, France and Portugal believed that international cooperation and assistance was an important moral obligation but not a legal entitlement, and did not interpret the Covenant to impose a legal obligation to provide development assistance or give a legal title to receive such aid”. Emphasis added. Report of the Open-ended Working Group to Consider Options Regarding the Elaboration of an ­Optional ­Protocol to the International Covenant on Economic, Social and Cultural Rights on its Second Session, E/CN.4/2005/52, 10 February 2005, par. 76. But for a contrary view, ­expressed by the representative of Egypt, according to whom “Art. 2 (1) recognized a legal obligation of international assistance”, see ibidem, par. 77. 268 Cf. A. Malintoppi, L’art. 56 della Carta delle Nazioni Unite, rdi, 1961, p. 430. 269 Art. 4 (3), Tampere Convention. But, if they decide to render the requested assistance, State Parties do not possess unfettered discretion in the determination of “costs or fees”. They shall instead take into account some factors, the list of which is not exhaustive, such as the nature of the disaster, the capacity of the affected State to prepare for and respond to the disaster, the needs of developing countries, and the United Nations Principles Concerning Humanitarian Assistance. See Art. 7 (Payment or Reimbursement of Costs or Fees), Tampere Convention. Thus, the principles of humanity, neutrality, and impartiality become by reference compulsory key-factors in determining the telecommunications price, and this excludes that, under the Tampere Convention, a pure market logic may apply to the provision of telecommunications assistance. See Art. 6 (Humanitarian principles) of the Draft Articles on the Protection of Persons in the Event of Disasters. See also UN General Assembly Resolution 45/100, Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations, adopted on 14 December 1990; UN General Assembly Resolution 46/182, Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, adopted on 19 December 1991, point 2 of the Annex. On developing countries and telecommunications, cf. G. Venturini, Servizi di telecomunicazione e concorrenza nel diritto internazionale e comunitario, 2nd edition, Torino, 1999, pp. 84–87.

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telecommunication.270 There is a line between discretion and arbitrariness, the exercise of a State’s right to refuse providing telecommunications assistance  and the abuse of that right. Although, and admittedly, difficult to determine when the line is overstepped, a State that keeps refusing to provide ­assistance may arguably be overstepping it, and exposing itself to consequences in terms of international responsibility. In conclusion, in international law, as it stands, the States, except the affected one, are neither assigned a right, nor a duty to provide humanitarian assistance. Article 5 of the Bruges Resolution on Humanitarian assistance, under the title “Duties in respect of humanitarian assistance”, further sustains the exclusion of both the right and the duty, affirming that “all States should to the maximum extent possible offer humanitarian assistance to the victims in States affected by disasters”,271 and only when “such assistance would [not] result in seriously jeopardizing their own economic, social or political conditions”. From the article what can be inferred is that “pour ce qui est des États, le paragraphe 1 dit qu’il n’y a pas davantage qu’une obligation morale d’offrir ses services” [as far as States are concerned, paragraph 1 says that there is nothing more than a moral obligation to offer their services].272 270 Art. 3 (2) (c), Tampere Convention. 271 Emphasis added. Along the same lines, Principle xviii of the Rio Declaration merely exhorts the “international community” to provide assistance to States affected by natural disasters or other emergencies. On the contrary, referring back to the Bruges Resolution, the wording of this instrument contains a clear “duty” when referring to international organisations: “Intergovernmental organisations shall offer humanitarian assistance to the victims of disasters in accordance with their own mandates and statutory mandates”. Art. 5 par. 2 Résolution “L’assistance humanitaire” adoptée par l’Institut de Droit international à sa session de Bruges (2003). 272 Emphasis added. “L’Art. 5, paragraphe 1, est donc surtout d’une norme habilitatrice, une norme qui permet d’agir de manière expresse” [Art. 5, paragraph 1 is therefore above all an enabling norm, a norm which explicitly allows to act]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., pp. 866–867. We do not see, however, any reason why a norm is needed to enable States to offer humanitarian assistance, because States already have a sovereign right to make such offers in practice. In similar terms, with reference to draft Art. 16 (now draft Art. 12) (Offers of external assistance) of the Draft Articles on the Protection of Persons in the Event of Disasters, and to the right to offer humanitarian assistance contemplated therein, it has been argued that “draft Art. 16 walks a fine line between rhetoric and reality. The actual terms of draft Art. 16 merely reflect a right which need not be exercised”. T.O’ Donnell, C. Allan, A Duty of Solidarity? The International Law Commission’s Draft Articles and the Right to Offer Assistance in Disasters, in S.C. Breau, K.L.H., Samuel (Eds.), op.cit., p. 460. In this respect, see the position adopted by some States in the Fifth report on the protection of persons in the event of disasters, by Eduardo Valencia-Ospina, Special Rapporteur, A/CN.4/652, par. 50.

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However, to deny a duty, under international law, to assist upon request, does not mean that third States are completely free to determine their conduct in delivering humanitarian assistance to the affected State. According to the above-mentioned international treaties (which use the adverbs “promptly” and “immediately”), and then both soft law instruments and international practice, the first duty which rests upon the State that receives the request for humanitarian assistance is to inform others of its decision on the provision of assistance, as soon as possible: a key requirement given the sudden onset of a disaster and the need for a prompt response. Draft Article 12 paragraph 2 (Offers of external assistance) consistently contemplates a procedural obligation upon third States, the United Nations and other potential assisting actors to expeditiously give due consideration to the request and inform the affected State of their reply. It seems to codify in parte qua customary law. Secondly, third States, namely the transit States which are directly concerned, cannot obstruct, or make it more difficult to deliver humanitarian ­assistance. Some authors deduce such prohibition from the general right to assistance.273 It would however be best to derive it from the duty to cooperate and, in particular, from a combined reading of Article 55 with Article 56 of the UN Charter.274 Since disasters tend to undermine all the objectives listed in 273 “Ils [the third States] possèdent de surcroît en la matière certains devoirs durs – par exemple celui de ne pas entraver l’assistance – dérivés, qui reposent eux aussi sur l’affirmation d’un droit général à l’assistance” [In addition, they [the third States] have certain derived hard duties in this respect – for example, that of not impeding assistance –, which are also based on the assertion of a general right to assistance]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 862. 274 “It [Art. 56 UN Charter] does obligate Members to refrain from obstructionist acts and to cooperate in good faith in the achievement of the purposes of Art. 55”. L.M. Goodrich, E. Hambro, op.cit., p. 324. According to A. Malintoppi, the general obligation to co-operate in the implementation of the purposes of the United Nations implies the necessary adoption of those conducts which make possible, or at least do not obstruct, international co-operation. Cf. A. Malintoppi, L’Art. 56 della Carta delle Nazioni Unite, op.cit., p. 428. The same author further emphasises that “il rafforzamento dell’obbligo generico mediante una ulteriore e specifica enunciazione del dovere di collaborazione in relazione ad un singolo settore dell’attività unionistica fa si che, nel medesimo settore, potrà ravvisarsi violazione dell’obbligo da parte di uno Stato membro anche in situazioni che si distacchino in misura maggiore dal caso limite [the extreme case being defined by the author as the extremely withdrawn attitude of a Member State]” [The strengthening of the generic obligation through a further and specific provision of the duty of cooperation in relation to a single sector of unionistic activity implies that, in the same sector, a violation of that duty by a Member State may also be envisaged in situations which are to a greater extent detached from the extreme case [the extreme case being defined by the author as the extremely withdrawn attitude of a Member State]. A. Malintoppi, ibidem, pp. 426–432.

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Article 55 of the UN Charter, bringing them to naught, international cooperation in this realm should be envisaged as a duty rather than a free choice.275 International practice along with a number of instruments confirms that there is a duty not to obstruct the delivery of humanitarian assistance. In the context of armed conflicts the rule is contemplated by the Geneva Convention iv and by Additional Protocol i. Both explicitly oblige State Parties to allow the free passage of relief consignments.276 Additionally, the International Court of Justice, from Article 1, common to the four Geneva Conventions, has concluded that: “every State party to that Convention [Geneva Convention iv], whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with”,277 including that the needed humanitarian assistance is effectively delivered. Regarding disasters, a number of unga resolutions on humanitarian assistance, namely Resolutions 43/131;278 45/100;279 46/182,280 similarly urge “States in proximity to areas of natural disasters and similar emergency situations, particularly in the case of regions that are difficult to reach, to participate closely with the affected countries in international efforts with a view to facilitating,

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See also F. Marcelli, Il regime internazionale della ricerca scientifica, tecnologica e spaziale, cnr, Roma, 1996, p. 101. H. Kelsen maintained that Art. 56 of the UN Charter was “meaningless and redundant”: “to take action in co-operation with the Organisation means: to co-operate with the Organisation by taking action. The purposes set forth in Art. 55 are to bring about economic and social co-operation; co-operation among the Members. Hence Art. 56 provides: the Members shall co-operate with the Organisation in order to bring about co-operation among themselves”. According to the author, this amounts to an “empty tautology”. Cf. H. Kelsen, The Law of the United Nations, London, 1951, pp. 99–100. However, Art. 56 has a specific legal meaning. Since Art. 55 is addressed to the Organization and not to the Member States, Art. 56 is a necessary integration to Art. 55 of the UN Charter. In this sense, see also V.S. Mani, Towards an International Disaster Response Law: Quest for a Role for International Space Law, op.cit., pp. 44–45; G. Venturini, International Disaster Response Law in Relation to Other Branches of International Law, op.cit., p. 62. See draft Art. 7 (Duty to cooperate), whose potential content is spelled out in draft Art. 8 (Forms of cooperation in the response to disasters). See Art. 23, Geneva Convention iv; Art. 70 (2), (3), Additional Protocol i. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, i.c.j. Reports 2004, p. 136, par. 158. unga Resolution 43/131, Humanitarian assistance to victims of natural disasters and similar emergency situations, A/RES/43/131, 75th plenary meeting, adopted on 8 December 1988. unga Resolution 45/100, Humanitarian assistance to victims of natural disasters and similar emergency situations, adopted on 14 December 1990. unga Resolution 46/182, Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, adopted on 19 December 1991.

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to the extent possible, the transit of humanitarian assistance”.281 Such norm is reiterated and specified in a number of treaties. As already pointed out, the Chicago Convention Contracting States are obliged to facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights undertaken to respond to natural or man-made disasters.282 The 1965 Convention on Facilitation of International Maritime Traffic establishes that “Public authorities shall facilitate the arrival and departure of vessels engaged in natural disaster relief work”283 and, according to the Tampere Convention “each State Party shall, at the request of any other State Party, and to the extent permitted by its national law, facilitate the transit into, out of and through its territory of personnel, equipment, materials and information involved in the use of telecommunication resources for disaster mitigation and relief”.284 Several other instruments require States to “facilitate” transit of relief consignments across their territory, or to “ensure all the necessary support”, although they do not always elaborate what this entails.285 Paving the way towards a common responsibility to assist seems better than a non-centralized right to assist, as the latter may easily lead to abuse. 2.13 Conclusions In international law as it stands, as a general rule, in case of arbitrary withholding of consent to external humanitarian assistance, humanitarian ­assistance 281 unga Resolution 43/131, ibidem, par. 6. 282 Annex 9 to the Chicago Convention, Standard 8.8. 283 See section F of the Convention on Facilitation of International Maritime Traffic, London, 9 April 1965, standard 5.11 (now standard 7.8). The commentary to the standard specifies that: “The very nature of rescue operations, natural disasters, rescue of persons in distress at sea and other similar operations are duties that, by their very nature, require that States act with urgency in order to ensure their quick execution. Therefore ports shall adopt standards facilitating the arrival and departure of ships used on these operations”. International Maritime Organisation, Explanatory Manual to the Convention on Facilitation of International Maritime Traffic, 1965, as amended, FAL.3/Circ.202, 11 October 2010. Then, according to standard 5.12 (now 7.9), “Public authorities shall to the greatest extent possible facilitate the entry and clearance of persons and cargo arriving in vessels referred to in Standard 5.11 [now 7.8]”. 284 Art. 9 (4) (Regulatory barriers), Tampere Convention. 285 Agreement among the Governments of the Participating States of the Black Sea Economic Cooperation (bsec) on collaboration in Emergency Assistance and Emergency Response to Natural and Man-made Disasters, 1998, Art. 5; Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 1986, Art. 9; Agreement Establishing the Caribbean Disaster Emergency Response Agency, 1991, Art. 22.

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cannot be provided, neither through peaceful means, nor through the use of force. The Security Council, acting under Chapter vii, can nonetheless demand that the affected State allows appropriate actors to conduct relief operations, or authorize Member States to use “all necessary means” to make the delivery of humanitarian assistance possible, regardless of the consent of the affected State. While the UN Security Council has never taken this approach to disaster response, it remains in principle feasible, being consistent with the development of its current practice. At the same time, if a permanent member of the UN Security Council strives to protect the refusing State, it does not mean that there must be no delivery of humanitarian assistance. Limited use of force seems admitted, even without UN Security Council authorization, as long as the requirements of defence of necessity are met. Airdrops of humanitarian aid fit particularly well therein, being less intrusive than intervention on the ground, relatively brief, and not seriously impairing the essential interests of the disaster-affected State. What future scenarios can be envisaged in the event of arbitrary refusal to humanitarian assistance? Undoubtedly, they are linked to the future outcome of the Draft Articles. A treaty may represent a novelty in this fragmented area of international law where, as of yet, there is still no universal flagship treaty.286 Such outcome is however difficult to predict.287 The General Assembly’s long-established reluctance to adopt treaties on the basis of the ilc’s Draft Articles hinders such possibility. On the other hand, not having a universal “flagship treaty” is certainly an anomaly, considering the significance of this domain and the widely recognized need for a multilateral approach.288 If States were to embark on a treaty-making process, a more operational text could be explored, using the current Draft Articles as a framework for basic principles as well as addressing concrete issues raised by the relief phase.289 From this perspective, and considering the positions of a number of States with regard to the rule that prohibits the “arbitrary refusal” of humanitarian

286 Cf. D. Fisher, The Future of International Disaster Response Law, gyil, 2012, p. 89. 287 The various positions of States on the opportunity to adopt a treaty on the basis of the ilc’s Draft Articles differ greatly. For a detailed report, see G. Bartolini, Il progetto di articoli della Commissione del diritto internazionale sulla “Protection of Persons in the Event of Disasters”, op.cit., pp. 715–716. 288 G. Bartolini, ibidem, p. 678. Over the last decades several mechanisms have been created to centralise the transmission of governmental requests and offers of assistance. Cf. M. Lachs, The Development and General Trends of International Law in our Time, Recueil des cours, 1980, vol. iv, p. 74. 289 See UN Doc. A/61/10, 2006 Annex C, par. 24, and the Proposed Outline at p. 213.

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assistance,290 the latter concept should be replaced with more specific standards. An option could be to specify the general principles humanitarian assistance shall comply with: first of all humanity, neutrality, impartiality, and no discrimination against the beneficiaries.291 Additionally, the treaty should specify the human rights standards the affected State should comply with, either through its own resources or, in case of a lack or insufficient resources, through the acceptance of external humanitarian assistance. According to such an ideal treaty, elaborated from the Draft Articles, assessment of the emergency situation should not be left to the discretion of State Parties, as is currently the case in most international treaties. An impartial system of verification should be included. The treaty should also contemplate that those in need can trigger a verification process of an emergency.292 Finally, although admittedly difficult for States to accept, such treaty should also include a system of automatic provision of humanitarian assistance in case the affected State were ascertained to be unable or unwilling to cope with the disaster. The willingness of States to give una tantum prior consent to humanitarian assistance in case of disaster, may be greater as long as relief operations are carefully regulated, as in the Fourth Geneva Convention and in its Protocols. In particular, appropriate control measures should be contemplated to allow the affected State to be satisfied with the humanitarian relief operations. They should be consistent with the purpose they were designed for, and with the principles of humanity, neutrality, impartiality, and non-discrimination for the beneficiaries. Indeed, as clearly highlighted by international practice, the risk, and the affected State’s suspicion, that humanitarian relief actions may be a sort of “Trojan horse” often undermines the effectiveness of relief 290 “It would appear problematic to require reasons to be stated in the event of its refusal, as implied by paragraphs 2 and 3”. France: A/C.6/66/SR.23, par. 39; “The term “arbitrarily” could give rise to difficulties of interpretation and should be further clarified”. Israel: A/C.6/66/SR.23, par. 33; “It was not clear how arbitrary refusal would be determined, or what its consequences would be”. United Kingdom: A/C.6/66/SR.23, par. 45. 291 See Draft Art. 6 (Humanitarian principles). This drafting technique is already followed in Art. 214 (2), tfeu, and in Art. 3 of the Framework Convention on Civil Defence Assistance. 292 In this sense, see also F. Lattanzi, Assistenza umanitaria e intervento di umanità, op.cit., p. 20. Some exceptional agreements already recognise the possibility of requests being made by other entities than the affected State. The Cotonou Agreement, for example, provides that assistance operations “shall be undertaken either at the request of the acp [African, Caribbean or Pacific] country or region affected by the crisis situation, or at the initiative of the Commission, or on the advice of international organisations or local or international non-state organisations”. Art. 73 (1), Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States of the other part (Cotonou Agreement), revised in Ouagadougou on 22 June 2010.

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­assistance.293 In this regard, clues to develop norms that regulate the delivery of humanitarian assistance in situations of disasters can be offered by Additional Protocol i, applicable to international armed conflicts. It contemplates that the concerned Party may request that relief actions be carried out under the local supervision of a Protecting Power.294 Rather than focusing on who can perform the humanitarian relief action, as Article 59 of the Geneva Convention iv does,295 this norm shifts the focus on who can exercise control over the relief action. As suggested by the Oslo Guidelines and mcda Guidelines, military assets and personnel should only be used as a last resort, that is only when and for as long as there are no other civilian alternatives to support urgent humanitarian needs.296 Furthermore, relief corridors can be used to enable the receiving State to grant access to a specific geographical area for the delivery of humanitarian assistance, rather than granting a broad consent.297 In this manner the 293 “Dès lors que l’aide humanitaire est ainsi embrigadée dans l’étau gouvernemental, elle devient suspecte, car les gouvernements et les factions locaux la ressentent comme le bras prolongé d’une politique étrangère sélective, et en définitive comme une ingérence dans leurs affaires intérieures” [As humanitarian aid is thus caught up in governmental hands, it becomes suspicious, because governments and local factions perceive it as the prolonged arm of a selective foreign policy, and ultimately as an interference in their internal affairs]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op. cit., p. 855. M. Costas Trascasas, however, notes that “a requirement whereby aid offers must be exclusively intended for humanitarian purposes, although desiderable, is not very ­realistic”. M. Costas Trascasas, Access to the Territory of a Disaster-Affected State, in A. de Guttry and others (Eds.), op.cit., p. 226. 294 Art. 70 (Relief actions), Additional Protocol i: “3. The Parties to the conflict and each High Contracting Party which allow the passage of relief consignments, equipment and personnel in accordance with par. 2: […] (b) May make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power”. 295 Art. 59 (Relief I. Collective relief), Geneva Convention iv. 296 Guidelines On The Use of Military and Civil Defence Assets To Support United Nations Humanitarian Activities in Complex Emergencies, March 2003, par. 26 (ii); Guidelines On The Use of Military and Civil Defence Assets In Disaster Relief – “Oslo Guidelines”, Updated November 2006, par. 32 (ii). The Draft Articles on the Protection of Persons in the Event of Disasters merely describe that two types of personnel are typically sent for the purpose of providing disaster relief assistance, namely “civilian” or “military” personnel. It seems instead that, as originally suggested by the Special Rapporteur, the last resort rule should be included in the text of the Draft Articles, or at least in the commentary. Cf. Valencia-Ospina, Eight Report on Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/697, 2016, par. 91. 297 The limitations imposed on innocent passage in the territorial sea under Art. 19 of the UN Convention on the Law of the Sea could serve as a model to develop a regulation for relief

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receiving State can minimize and has better control over the foreign presence on its territory.298 As previously stated, the affected State generally allows the delivery of humanitarian assistance ex post, after the occurrence of a disaster. In this regard States other than the affected one may play a supporting role in the management of disasters, achieving desirable results through peaceful means. The ­latter may induce the unable or unwilling State to fulfil its responsibility in assisting its own population and in accepting external humanitarian assistance.299 Peaceful means may include retorsions, thus an “unfriendly” conduct which does not violate any international obligations that the State adopting this retorsion has towards the affected State. International experience has shown that, in this context, high pressure from a united international community may help in achieving the objective. For example, faced with increasing international pressure, Myanmar’s authorities finally accepted external assistance for its population. An intrinsic limit of retorsions is that they should not exacerbate the already severe human rights conditions within the jurisdiction of the affected State, being in contrast with the final aims they are striving to achieve.300 corridors. See M. Bettati, The Right of Humanitarian Intervention or the Right of Free Access to Victims?, Review of the International Commission of Jurists, vol. 49, No. 1, 1992, p. 7. 298 The Inter-American Convention, for example, provides that “the States Parties shall respect any restricted areas so designated by the assisted State” (Art. 8). A concrete example is offered by an agreement between Sudan and the United Nations, concluded in June 1991, which established a humanitarian corridor over water via the Kosti-Malakal Nassir waterway, the White Nile, and the River Sobat to deliver provisions to populations in Southern Sudan. 299 Cf. P. Harvey, op.cit., p. 33; 41. “Cela [the refusal of external assistance] est encore possible, mais les Etats sont soumis à une telle pression en provenance des divers secteurs de l’opinion internationale qu’une telle attitude devient de plus en plus difficile à tenir” [This [the refusal of external assistance] is still possible, but States are under such pressure from various sectors of the international opinion that such an attitude becomes increasingly difficult to adopt]. C. Leben, op.cit., p. 73. 300 In its General Comment No. 8 (1997), the cescr discussed the effect of economic sanctions on civilian populations and especially on children. It stressed that “whatever the circumstances, such sanctions should always take full account of the provisions of the International Covenant on Economic, Social and Cultural Rights”, and went on to state that “it is essential to distinguish between the basic objective of applying political and economic pressure upon the governing élite of the country to persuade them to conform to international law, and the collateral infliction of suffering upon the most vulnerable groups within the targeted country”. General Comment No. 8 (1997), The relationship between economic sanctions and respect for economic, social and cultural rights, par. 1; 4. In this regard, M-J. Domestici-Met noticed that “la pratique d’exclure toute restriction sur les fournitures alimentaires et des médicaments […] semble obéir à un véritable sentiment

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On the contrary, since international practice is still not consolidated on this point, it remains to be seen whether a State can take a countermeasure, violating its obligation towards the State which arbitrarily refuses humanitarian assistance.301 It is meaningful that Article 8 (4) of the Bruges Resolution on Humanitarian Assistance, which addressed the right of third States to adopt

d’obligation juridique” [The practice of excluding any restriction on food supplies and medicines […] seems to follow a genuine perception of legal obligation]. M-J. DomesticiMet, Aspects juridiques récents de l’assistance humanitaire, op.cit., p. 123. 301 As a general issue, it is not clear whether a countermeasure may be adopted by States other than an injured State, consisting in the suspension of the performance of an obligation due to the State which has violated an erga omnes obligation. Practice on this subject is still limited and not univocal. Cf. paras. 3 and 6 of the Commentary to art. 54 (Measures taken by States other than an injured State), Draft Articles on Responsibility of States for Internationally Wrongful Acts. Cf. J. Pauwelyn, A Typology of Multilateral Treaty Obligations: Are wto Obligations Bilateral or Collective in Nature, ejil, 2003, p. 919. International law scholars are divided between those who affirm and those who, on the contrary, deny that faculty. The former emphasise that the faculty to adopt countermeasures may play a deterrent role when it comes to the infringement of erga omnes obligations, which could otherwise remain without consequences, except from political or moral condemnation. Cf. A. De Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto internazionale, Milano, 1985, pp. 294–295; J.A. Frowein, Collective Enforcement of International Obligations, in Zeitschrift für ausländisches ӧffentiliches Recht und Vӧlkerrecht, 1987, pp. 67–79; S. Forlati, Azioni dinanzi alla Corte Internazionale di Giustizia rispetto a violazioni di obblighi erga omnes, rdi, 2001, pp. 81–83. Others, on the other hand, emphasize that, as long as the faculty to adopt countermeasures against the infringement of erga omnes obligations is admitted in international law, it could easily open the way to abuse and thus lead to the risk of the international system collapsing. See B. Conforti, In tema di responsabilità degli Stati per crimini internazionali, in Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago, vol. iii, Milan, 1987, pp. 110–111; K. Sachariew, State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status, Netherlands International Law Review, 1988, pp. 278–285; P.M. Dupuy, Observations sur la pratique récente des “sanctions” de l’illicite, Revue générale de droit international public, 1983, pp. 542–548 and, by the same author, A General Stocktaking of the Connections Between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility, ejil, vol. 13, 2002, pp. 1066–1068; P. Weil, Le droit international en quête de son identité, Recueil des cours, 1992, vol. vi, p. 302. Finally, there are those who place themselves in the middle ground between the outlined positions and affirm the faculty to adopt countermeasures at least in case of serious violation of jus cogens norms: “il nous semble que la pratique actuelle est suffisante pour reconnaître la légitimité des contre-mesures omnium dans le cas de violations graves d’obligations découlant du jus cogens” [It seems to us that the current practice is sufficient to recognise the legitimacy of countermeasures omnium in the case of serious v­ iolations of obligations deriving from jus cogens]. S. Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats, Paris, 2005, pp. 365–378; 409–413.

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countermeasures in case of arbitrary refusal to external assistance, was finally removed.302 What still needs to be ascertained now is whether space activities, as regulated by international law, can be used to overcome, at least to some extent, the refusal to humanitarian assistance by the affected State. As will be seen, in this realm they can provide unexpected support. 302 Contra R. Kolb maintained that “en cas de refus injustifié de l’État territorial de permettre l’acheminement de l’aide humanitaire, les États tiers peuvent prendre des contre-mesures pacifiques (ce droit leur revient erga omnes)” [In the event of the territorial State’s unjustified refusal to allow the delivery of humanitarian aid, third States may take peaceful countermeasures (they are entitled to this right erga omnes)]. R. Kolb, De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, op.cit., p. 857. Similarly, and referring to human rights violations in general, G. Gaja: “let us assume that in the case of an infringement of human rights, no State may seek a reparation or adopt a counter-measure: does this not mean that an obligation exists, whose violation is automatically condoned?”. G. Gaja, Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts, in J.H. Weiler and others (Eds.), International Crimes of States, Firenze, 1989, p. 155.

Chapter 3

The Operation of Satellites and the Consent of the Underlying State 3.1 Introduction Space activities – in particular remote sensing and satellite telecommunications – can greatly contribute to the prevention and management of disasters. The Vienna Declaration on Space and Human Development has coherently linked space technology to disasters, highlighting the need “to implement an integrated, global system, especially through international cooperation, to manage natural disaster mitigation, relief and prevention efforts, especially of an international nature, through Earth observation, communications and other space-based services, making maximum use of existing capabilities and filling gaps in worldwide satellite coverage”.1 Remotely sensed images can provide information to understand the Earth’s surface, enabling a proper use of its natural resources. Moreover, these images can be applied to study and monitor the land structure in relation to landslides, seasonal river and flooding patterns, and the composition of snow in relation to avalanches (risk-evaluation and vulnerability-analysis).2 Different kinds of sensors can detect an impending disaster. For instance, thermal sensors 1 Resolution 1, The Space Millennium: Vienna Declaration on Space and Human Development, par. 1 (b) (ii). Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space, Vienna, 19–30 July 1999, A/CONF.184/6, pp. 6–7. 2 Sensed data have previously been used in international proceedings concerning environmental issues. In the Islamic Republic of Iran v. United States of America case on oil platforms, satellite images were presented to prove the existence of missile sites on territory under Iranian control. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement of 6 November 2003, icj Reports 2003, p. 161, paras. 53; 54; 56; 58. In the case concerning Pulp Mills, Argentina claimed that an algal bloom was caused by the mill’s emissions of nutrients into the river. To substantiate this claim, Argentina pointed to the presence of effluent products in the blue-green algal bloom and to various satellite images showing the huge concentration of chlorophyll in the water of River Uruguay. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgement of 20 April 2010, icj Reports 2010, p. 14, par. 248. Also in the Aerial Herbicide Spraying case between Ecuador and Colombia, satellite imagery and gps data were used (This case was removed from the Court’s list at the request of Ecuador). More recently, in the Costa Rica v. Nicaragua case, both parties put forward satellite images in order to show the environmental consequences of the activities at stake. Certain Activities Carried out by Nicaragua in the Boarder Area; Construction of a

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i­ dentify active fires, infrared sensors detect floods, microwave sensors measure the earth’s deformation and, to some extent, can help to predict earthquakes and volcanic eruptions, regardless of cloud formation or meteorological conditions (early-warning). When a disaster has already occurred, remotely sensed images offer an immediate comprehensive picture of the affected area. They can be used to organize rescue operations and for an accurate evaluation of disaster losses.3 This possible use proves significant for the purposes of this study. As already pointed out, the main problem with humanitarian response to conflict or disaster remains the same – that is, how to reach those who need it. War often makes it impossible to access an area, sometimes the terrain or meteorological conditions do not allow the passage of relief goods and, in other cases, the whereabouts of victims are unknown. Problems to access those requiring assistance are often not due to unfortunate circumstances, but are instead man-made and intentional. Looting relief supplies, attacks on aid convoys, or refusal to authorize access can make it difficult for aid to reach its intended beneficiaries:4 satellite imagery digitally shows what might otherwise not be acquired. In the Sargsyan v. Azerbaijan case for example, difficulties emerged in accessing the area where the alleged violations took place, in particular in the village of Gulistan. The European Court on Human Rights relied on high-­resolution satellite images to determine the facts, namely “the location of military positions such as trenches and fortifications in and around the village of Gulistan, for the period between the entry into force of the Convention in respect of Azerbaijan (15 April 2002) to the present, and also on the state of destruction of buildings in the village and of the village’s cemeteries at the time of the Convention’s entry into force (15 April 2002)”.5 In this case, the information acquired from satellite images greatly contributed to the Court’s decision of establishing alleged violations to the European Convention on Human Rights. Road in Costa Rica along the San Juan River (Costa Rica v. Nicaragua), Judgement of 16 December 2015, icj Reports 2015, paras. 79–81; 202; 206. 3 “Disaster losses can be reduced through observations relating to hazards such as: wildland fires; volcanic eruptions; earthquakes; tsunamis; subsidence; landslides; avalanches; ice; floods; extreme weather; and pollution events. geoss implementation will bring a more timely dissemination of information through better coordinated systems for monitoring, predicting, risk assessment, early warning, mitigating, and responding to hazards at local, national, regional, and global levels”. The Global Earth Observation System of Systems (geoss) 10-Year Implementation Plan, as adopted on 16 February 2005, par. 4.1.1; Directorate General for External Policies of the Union, Space, Sovereignty and European Security. Building European Capabilities in an Advanced Institutional Framework, January 2014, p. 20. 4 See supra Chapter 2. 5 Sargsyan v. Azerbaijan, Application no. 40167/06, decision of 16 June 2015, par. 72.

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On the other hand, satellite telecommunications play a pivotal role in designing and implementing early warning systems, in assisting the people who need it most, and in guaranteeing greater safety to workers and volunteers during rescue operations. When disasters such as earthquakes or flooding strike, the communication network is often the first to be damaged. Such natural disasters can totally destroy cable telecommunications, while panic often generates an overuse of the system. In such contexts satellite telecommunication provides a rather unique contribution to disaster prevention and management, representing an added value compared to earth-based systems. The next part of the study will illustrate whether space activities, as regulated by international law, can be used to overcome, at least to a certain extent, the barrier to the delivery of humanitarian assistance represented by State sovereignty. This clearly intertwines with the issue of the limit of air sovereignty which, since the beginning of air navigation, has been the object of several – although never completely satisfactory – theories. 3.2

Is a Delimitation between Airspace and Outer Space Needed?

The Outer Space Treaty establishes the principles of freedom of exploration and use6 and of non-appropriation of outer space.7 These principles apparently go against and are incompatible with the principle of full, exclusive sovereignty of each State over the airspace above its territory and above the territorial sea, recognized by the Paris Convention Relating to the Regulation of Aerial Navigation,8 and by the subsequent Chicago Convention on International Civil Aviation.9 Therefore, telecommunications and remote sensing activities will or will not fall under the sovereignty of the underlying State, depending on the altitude at which outer space begins. In particular, in case sovereignty extends beyond the perigee of the satellites, the passage of satellites in orbit without express permission of the underlying States would violate their sovereignty. On the contrary, if sovereignty ends below that perigee, space activities may be used in the prevention of and, in particular, in the response to disasters, regardless of the affected State’s consent. Remarkably, neither the height at 6 Art. i, Outer Space Treaty. 7 Art. ii, Outer Space Treaty. 8 Convention Relating to the Regulation of Aerial Navigation, signed at Paris on 13 October 1919. League of Nations Treaty Series (1922) n. 297, p. 173, no longer in force. 9 Convention on International Civil Aviation, signed in Chicago on 7 December 1944, icao Doc.7300/7 (7th ed.–1997), 15 unts 295; entered into force on 4 April 1947. See supra par. 2.4.

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which the sovereignty is to cease is specified by the Chicago Convention, nor is there general consensus thereon.10 The Outer Space Treaty and the other space treaties also fail to set the demarcation line between airspace and outer space, despite containing such terms as “outer space”, “space objects”, and “space activities”, which lack a definition. To sum up, outer space represents a limit to national sovereignty which extends above the surface of the Earth up to a still undefined altitude. The United Nations Committee on the Peaceful Uses of Outer Space (uncopuos), which was tasked with promoting international co-operation in the exploration and use of outer space, developing and codifying related international norms, has not treated the issue as a priority.11 According to some States, there would be no compelling reasons to define the boundary,12 leaving the boundary problem until the time is ripe for a definitive solution. Such regulatory vacuum has neither prevented increasing space activities, nor slowed down the development of principles and rules of international space law. Despite the lack of boundary, no international disputes on delimitation have arisen so far. Furthermore, in the event of accident, application of the Outer Space Treaty and of the Liability Convention does not depend on whether it happened in outer space or in airspace. The only relevant point is whether or not the damage was caused by a space object.13 A further argument against delimitation is that aerospace technology keeps evolving, with the consequence that any attempts of delimitation could be subject to future changes.14 Clearly,

10

C.Q. Christol notes that this is not unusual as far as territorial treaties are concerned. Cf. C.Q. Christol, The Modern International Law of Outer Space, New York, 1982, p. 443. 11 “It was generally believed that the determination of precise limits for airspace and outer space did not present a legal problem calling for priority consideration at this moment. The Committee noted that the solution of the problems which it had identified as susceptible of priority treatment was not dependent upon the establishment of such limits”. UN doc. A/4141, p. 68, par. 28. Although delimitation was not considered as a priority, uncopuos has been dealing with it since the time it was formally put on the agenda of the Legal Sub-Committee in accordance with General Assembly resolution 2222 (xxi) of 1966. Cf. B. Cheng, The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use, jsl, 1983, p. 93. See the question of definition and/or delimitation of Outer Space UN Doc. A/AC.105/2/7. UN Doc. A/AC.105/C.2/2/7/ Add.1. 12 uncopuos Legal Subcommittee, Fifty-fourth session, Vienna, 13–24 April 2015. Draft report Annex ii Report of the Chair of the Working Group on the Definition and Delimitation of Outer Space, 17 April 2015, A/AC.105/C.2/2015/DEF/L.1, par. 6. 13 Art. vii, Outer Space Treaty. 14 Cf. F. Pocar, Voli aerospaziali e delimitazione dello spazio, in F. Durante (Ed.) La regolamentazione giuridica dei mezzi di trasporto aero-spaziali, Napoli, 2000, pp. 29–30.

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all these elements seem to highlight that a clear delimitation of airspace is neither necessary nor possible.15 On the contrary, according to this writer, the fact that everything in the world, including technology, always changes and evolves does not prevent regulations from being enacted and later amended based on new needs.16 The need for a precise, unambiguous definition of outer space consistently emerges from discussions within the uncopuos Legal Subcommittee.17 Often, it is associated with the need of legal certainty, which was repeatedly highlighted by Member States within the consultation process triggered by the Working Group on the Definition and Delimitation of Outer Space.18 When a clear boundary between airspace and outer space is absent, States may enact domestic laws that define their airspace sovereignty, establishing different altitudes, as in the case of the delimitation of territorial sea where, over the years, States have claimed different boundaries. An individual State may enact national regulations controlling or even prohibiting the circulation of space objects above its territory, through a unilateral extension of its sovereignty,19 therefore impairing the free use of outer space. The aforesaid is already demonstrated by State practice. A boundary of national airspace is set by some States at the low altitudes where aviation is conducted, other States seem to have extended their national sovereignty up to the geostationary

15 16

17

18

19

In this sense, see M.S. McDouglas, H.D. Lasswell, I.A. Vlasic, Law and Public Order in Space, New Haven-London, 1963, p. 323. “As something will have to be done about it in due course, it would be more prudent to try and slip the muzzle on the animal while all the issues are still dormant than to wait till some major international instance hardens the divergent interests of all nations”. D. Wadegaonkar, Orbit of Space Law, London, 1984, p. 47. Report of the Legal Subcommittee on the work of its forty-fifth session, held in Vienna from 3 to 13 April 2006, UN doc. A/AC.105/871, par. 91; Working paper prepared by the Chair of the Working Group on the Definition and Delimitation of Outer Space of the Legal Subcommittee, 17 May 2017, par. 4. See the answer of the United Kingdom of Great Britain and Northern Ireland, which “recognizes the need to avoid hybrid solutions and will seek a regulatory solution which provides seamless consideration and a degree of legal certainty for operators” (A/AC.105/889/ Add.6) and the Draft Report of the Chair of the Working Group on the Definition and Delimitation of Outer Space: “The view was expressed that the establishment of a definition and delimitation of outer space would create certainty in the sovereignty of States over their airspace and would also enable the effective application of the principles of the freedom of use of outer space and of non-appropriation of outer space”. Draft report of the Chair of the Working Group on the Definition and Delimitation of Outer Space, A/AC.105/C.2/2010/DEF/L.1, p. 2. Cf. E. Pépin, Space Penetration, op.cit., p. 232.

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orbit. Ecuador for example – which was a party of the Bogotà Declaration20 – “ejercerá”, according to its Federal Constitution “derechos sobre los segmentos correspondientes de la órbita sincrónica geoestacionaria”.21 This rather ambiguous norm could be interpreted as a claim of national sovereignty over the geostationary orbit’s segment above its territory. Although this norm does not necessarily imply a limit of 36,000 km of altitude, it at least “carves out” a special zone at that altitude from the legal regime of outer space. As the example highlights, with no international provision, a complex situation may arise in the future where airspace and outer space boundaries differ from country to country, hindering any potential progress in space activities. Legal certainty and equality require that there be the same delimitation of boundaries for all countries.22 A clear delimitation is also needed to safeguard and give effectiveness to the non-appropriation principle, otherwise States may express claims over the orbits and orbital positions, as demonstrated by the Bogotá Declaration. Taking advantage of no clear-cut delimitation, eight equatorial States issued a declaration claiming their sovereignty over the geostationary orbit above their territory.23 20 21

22 23

See footnote n. 23 in this Chapter. Art. 4 par. 4 of the Constitution of Ecuador. According to Art. 101 of the Constitution of Colombia, the segment of the geostationary orbit, the electromagnetic spectrum and the zone in which it operates are also part of Colombia. Note that Colombia still implies that these claims are “in accordance with international law”, Art. 101 par. 4, Constitution of Colombia. Cf. M. Lachs, The Law of Outer Space, Leiden, 1972, p. 58. The author emphasises that a delimitation would prevent the misunderstanding or even friction to which uncertainty tends to give rise, and facilitate international cooperation. The Parties to the Bogotà Declaration hold that the absence of the definition of outer space in Art. ii of the Outer Space Treaty renders that article inapplicable to the geosta­ tionary orbit. Cf. V.S. Vereschetin, On the Principle of State Sovereignty in International Space Law, aasl, 1977, p. 431. With the Bogotá Declaration, eight equatorial States declared their sovereignty over the portions of the geostationary orbit above their territories and, in support of their claim, they argued that geostationary satellites move at the same speed as the Earth spins around its axis and therefore appear stationary above the same point on the Earth’s surface: “the geostationary synchronous orbit is a physical fact linked to the reality of our planet because its existence depends exclusively on its relation to gravitational phenomena generated by the Earth”. From this premise, the declaring States deduced that the geostationary orbit was not part of outer space, and thus non-appropriable, but rather part of the territory of the underlying States. They accordingly maintained that third States needed the prior consent of the underlying States in order to place their satellites thereon. These claims, however, were immediately rejected by other States as contrary to the principles of international law and, in particular, to Art. ii of the Outer Space Treaty.

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Another important argument to support the need for a definition of outer space can be developed from the concept of “space object”. Beyond the semicircular definition of the Liability and Registration Conventions,24 “space object” is usually framed by reference to an object (intended) to be launched into outer space,25 which brings in the spatialist criterion through the backdoor. Since the Liability Convention can only be triggered if damage is caused by an object that had at least been intended to enter an “area” called “outer space”, this raises again the issue of where that would be supposed to start. Finally, as previously mentioned, it is true that, to apply Article vii of the Outer Space Treaty and the Liability Convention, the damage has to be caused by a space object, regardless of where it occurs. However, the Liability Convention contemplates a double standard that depends specifically on the latter circumstance. If the damage is produced on the surface of the Earth or to an aircraft in flight, the launching State shall bear absolute liability.26 The fault requirement is instead contemplated for the liability of the damages caused in outer space.27 This, once more, seems to justify efforts directed towards the delimitation of airspace and outer space. While States have not reached a consensus on the need to define the boundary and what criterion to use,28 international legal institutions and scholars For the text of the Bogotá Declaration of 3 December 1976, see jsl, 1978, pp. 193–196. Cf. R. Jakhu, The Legal Status of the Geostationary Orbit, aasl, 1982, pp. 333–351. For a critique of the scientific and legal basis of the equatorial States’ claim, see S.B. Rosenfield, Where Air Space Ends and Outer Space Begins, op.cit., pp. 141–143. 24 “The term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof” Art. i (d), Liability Convention. Such “definition” is reiterated verbatim in Art. i (b), Convention on Registration of Objects Launched into Outer Space, opened for signature in New York, 14 January 1975; 28 ust 695, tias 8480, 1023 unts 15, entered into force 15 September 1976 [hereinafter Registration Convention]. 25 For the thesis that a space object concerns any man-made object which is at least attempted to be physically brought into outer space, see F.G. Von der Dunk, International Space Law, in F.G. von der Dunk, F. Tronchetti (Eds.), Handbook of Space Law, op.cit., pp.  86–87, and the literature cited therein. That the space object at least needs to be intended for a launch is derived from the Liability Convention which determines that “launching” includes “attempted launching”. See Art. i (b), Liability Convention. This is also reflected in a number of national space laws, for instance Sec. 1(c), Dutch Space Law (Rules Concerning Space Activities and the Establishment of a Registry of Space Objects), 24 January 2007, 80 Staatsblad (2007), p. 1; Art. 3 par. 1 (a), Belgian Law of 17 September 2005 on the Activities of Launching, Flight Operation or Guidance of Space Objects, consolidated text as revised by the Law of 1 December 2013 (b.o.j. of 15 January 2014). 26 Art. ii, Liability Convention. 27 Art. iii, Liability Convention. 28 “No agreement on substantive legal issues relating to the definition and delimitation of outer space are apparent from the reports of the Subcommittee or of the Committee on

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have made efforts in this regard, and the border issue has elicited passionate debates.29 The following paragraphs will help in recalling the main theories and, at the end, concluding remarks will be presented. 3.3

Usque ad Coelum

The delimitation issue has no reason to exist as long as it is agreed that State sovereignty extends ad infinitum (usque ad coelum/right up to the skies).30 Ac­ c­ording to this theory, the space activities falling within the cones of sovereignty created by the projection of numerous straight lines from the centre of the Earth through the borders of one State, and from those borders upwards, would require the previous consent of that State in order to be lawfully carried out. This theory has been criticised insofar as it extends States’ sovereignty ­“usque ad absurdum”. Indeed, no State will be able to extend its effective power beyond certain spatial limits.31 But what is really decisive here is the fact that this theory is not sustainable given the characteristics of certain astronomical phenomena.32 Whether the Earth’s rotation around its own axis, its revolution around the Sun at a speed of about 100,000 km per hour, or the infinitely more rapid motion of the solar system within the galaxy: all of these phenomena

29

30 31 32

the Peaceful Uses of Outer Space”. uncopuos Legal Subcommittee, Forty-first session, Vienna, 2–12 April 2002, Historical Summary on the Consideration of the Question on the Definition and Delimitation of Outer Space, A/AC.105/769, p. 7, par. 25. In order to understand the liveliness of the doctrinal debate, B. Cheng’s text is emblematic: “as regards the method for fixing the lower limit and/or the upper limit of national airspace, there are probably as many criteria as there are speakers or writers on the subject”. B. Cheng, The Legal Regime of Airspace and Outer Space: the Boundary Problem Functionalism versus Spatialism: the Major Premises, aasl, vol. v, 1980, p. 324. B. Cheng schematically classifies the authors who have dealt with the issue of delimitation into three categories: (1) the “spatialists”, who advocate the need to establish a precise limit; (2) the functionalists, according to whom aerospace activities shall be regulated differently depending on the nature of the activity or the nature of the vehicle, or through a combination of these two criteria, and (3) the “wait-and-seers”. Cf. B. Cheng, The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use, op.cit., p. 93. In the space law literature, several authors supported the tenet of unlimited sovereignty. See, for example, C.R. Hingorani, La souveraineté sur l’espace exo-atmosphérique, Revue générale de l’air, 20, 1957, pp. 248–252. Cf. R. Quadri, Droit international cosmique, op.cit., pp. 531–532. Cf. W. Jenks, International Law and Activities in Space, iclq, 1956, pp. 103–104. R. Monaco, Sovranità statale e spazio superatmosferico, rdi, 1958, pp. 586–588.

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imply that the relationship between the sovereignty of a State on the surface of Planet Earth and outer space is ever-changing. The projection of the various portions of the Earth’s surface, which are subject to the sovereignty of different States, would give rise to a series of adjacent cones of irregular shape and continuously changing content. As a consequence, a given body or a given point in outer space could be considered above a particular State, and thus be hypothetically submitted to its sovereignty, only for infinitesimal fractions of time. The acceptance of this theory would amount to an unscientific outlook, a retrogression from Copernicus to Ptolemy. The usque ad coelum33 theory is also incorrect when referring to positive law. The rule that the sovereignty of States is absolutely unwanted in outer space has found general acceptance so much as it is codified in Article ii of the Outer Space Treaty.34 3.4

Spatialist Theories

From the above, it can be inferred that States are solely entitled to sovereignty over the airspace, which does not extend indefinitely. From this premise, several theories were developed, aiming to identify a precise demarcation between airspace and outer space, either grounded on political considerations or on physical facts such as the composition of the Earth’s atmosphere. The theories based on physical criteria are, of course, also de iure condendo, because physical criteria are in themselves legally irrelevant until they become significant in connection with a concrete identification of interests considered worthy of legal protection by States.35 The spatialist splitting of the area above the Earth would lead to a host of legal rules related to air law and space law becoming applicable to one and the same spacecraft in quick succession upon its launch or re-entry. If both space 33

Clarification appears necessary here. The much-quoted maxim “cujus est solum, ejus debet esse usque ad coelum”, which is a medieval explanation of a classical Roman law rule, bears no relation to international law or even to public law. Prior to the invention of aviation, the interest of jurisprudence in the air had been restricted, almost entirely, to its aspects under private law. Thus, whenever the Corpus Juris Civilis deals with the concept of the air and the sky, it does so in relation to rights in rem affecting the land. The problem of airspace remained in the domain of private law until aviation became a reality. 34 Art. ii, Outer Space Treaty, was even considered to be a norm of ius cogens by some ­authors. Cf. V. Kayser, Launching Space Objects: Issues of Liability and Future Prospects, Dordrecht, 2001, pp. 27–28. 35 Cf. G. Conetti, Nozione e delimitazione dello spazio cosmico, in F. Francioni, F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993, p. 45.

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law and air law applied, each to different regions, then the boundary between airspace and outer space would once more become an issue.36 The majority of States and scholars of international law support the spatial approach, because it is assumed to afford some safeguards to the rights and interests of non-space Powers which are otherwise likely to be eroded by incipient customs based on the currently almost complete freedom of action of space Powers. A State is supposed to require sovereignty over an airspace up to an altitude at which flights are performed and from which, with some likelihood, direct damage to the territory of that State could still be done. The higher a State’s boundaries, the weaker the threat from above. Once again, it is first and foremost the altitude of that dividing line about which there are differences of opinion. The boundary of air space was identified with the upper limit of the Earth’s atmosphere.37 Schönborn, for example, in his course of international law delivered at the Hague Academy in 1929, distinguished between an effective boundary (frontière actuelle) – depending on the technical developments necessary to display sovereignty – and a potential limit, “frontière potentielle”, represented by the boundaries of the atmosphere.38 In order to support this thesis, one could emphasise that the terms of “airspace” and “atmospheric space” are historically identical. The French version of Article 1 of the 1919 Paris Convention uses the term “espace atmosphérique”, which has been rendered into English as “airspace”, and subsequently – at the Chicago Conference in 1944 – translated back into French as “espace aérien”. The itu Radio Regulations define the concepts of earth station, space station, and spacecraft through this criterion.39 A “spacecraft” is defined as “a manmade vehicle which is intended to go beyond the major portion of the Earth’s atmosphere”, for instance.40 However, what is crucial is that there is a lack of consensus among scientists as to the altitude at which the Earth’s atmosphere is supposed to end. Several proposals of delimitation have been elaborated using this criterion, identifying 36

37 38 39 40

The corollary of all spatialist theories is that the passage of spacecraft through foreign airspace to and from outer space would probably be subject to the consent of the underlying States. The boundary problem is indeed intertwined with the issue of passage through foreign airspace. Cf. F. Pocar, Voli aerospaziali e delimitazione dello spazio, in F. Durante (Ed.), op.cit., pp. 27–28. nasa, Dictionary of Technical Terms for Aerospace Use, 1st Edition, 1965, p. 258. W. Schönborn, La nature juridique du territoire, Recueil des cours, 1929, p. 158. For the definitions of Earth station and space station, see Articles 1.63; 1.64 itu Radio Regulations. Art. 1.178, itu Radio Regulations.

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the limit from eighty to hundreds, or even thousands of kilometres above sea level.41 The extreme layer of the atmosphere does not end suddenly, but gradually dissolves into “outer space” while becoming increasingly rarefied.42 Residual air may be found at relatively high altitudes. What is more, the atmosphere suffers a cyclical movement due to the gravitational pull from nearby celestial bodies, in particular the Moon, and also from shifting energy levels from the Sun. Since the limit of the atmosphere is not unequivocally determined, the proponents of this criterion of delimitation only shift the terms of the question. Other solutions were proposed in the literature such as the one known as the “Karman line theory” after Theodor von Karman, to whom the basic technical idea was attributed. Haley, his main defender, maintained that the conditions for accomplishing aerial flight may be expressed by the equation: Weight = Aerodynamic Lift + Centrifugal Force.43 However, several shortcomings can be found in this theory. Firstly, this theoretical limit of air navigation was meant to be changed as a result of the discovery of new cooling techniques and of more heat-resistant materials.44 Thus, it is doubtful whether a line of lasting significance can be drawn based on aerodynamic theory alone and independent of technological assumptions. But even supposing that the technical data remain constant, the outlined formula does not provide an unequivocal line, but a rather broad range.45 It is a mathematical function of altitude and speed, and changes along with these. Thus, depending on the characteristics of the flying object in question, the formula may result in the applicability of airspace jurisdiction to one flying object and that of outer space to another for the same 41 42 43

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Cf. G. Gal, op.cit., p. 78; S.B. Rosenfield, Where Air Space ends and Outer Space begins, op. cit., p. 139. Cf. S. Mishra, T. Pavlasek, On the Lack of Physical Bases for defining a Boundary between Air Space and Outer Space, aasl, 1982, pp. 401–402; L. Perek, Scientific Criteria for the Delimitation of Outer Space, jsl, 1977, pp. 122–123. Cf. A.G. Haley, Space Law and Government, New York, 1963, p. 98; W.H. von Hannover, Problems in Establishing a Legal Boundary Between Air Space and Space, Proceedings of the 1st Colloquium on the Law of Outer Space, The Hague, 1958, p. 29. In his detailed survey, T. Gangale came to the conclusion that, according to the available evidence, von Kármán’s engineering work was misinterpreted by lawyers who were seeking an altitude of physical significance as the basis for delimitation. T. Gangale, The Non Kármán Line: An Urban Legend of the Space Age, jsl, 2017, pp. 151–177. As admitted by A.G. Haley himself, ibidem, pp. 98–99. But, he added “these changes will be only in the exact location of the Von Karman line, for the existence of the line is certain, and wherever it is finally drawn will be the place where “airspace” terminates”. Ibidem, p. 99. Cf. G. Gal, op.cit., pp. 89–90.

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altitude in space.46 Finally, it has been noted that a theoretical altitude would have been calculated correctly by means of this formula if one factor, namely air drag, was non-existent.47 A further theory was based on the force of gravity: State sovereignty would extend up to the point where the Earth’s gravitational pull would be practically zero due to the distance from the Earth, with the result that objects could not fall back to Earth, except in cases of controlled return. The rational core of the gravitation theory is that State security can only be at risk at an altitude from which objects can be dropped or the return of an object seems possible. This theory, however, is also built on a doubtful scientific basis. Obviously, the closer the proximity to Planet Earth, the stronger the distortion, but it is not possible to define a physical limit of Earth’s gravitation. Gravitational effects can also be observed at substantial distances from the Earth, in as much as they influence the movement of celestial bodies at much greater distances than the Moon. Thus, if this criterion was accepted, the sovereign sphere of States would even include the Moon and most of the possible orbits, with the consequence that every State could oppose the passage of a space object above its territory. Within the Working Group on Matters Relating to the Definition and Delimitation of Outer Space, the criterion of delimitation based on the force of gravity was expressly rejected because the zero gravity condition can also be created, under certain circumstances, in the Earth’s atmosphere.48 According to another proposal, State sovereignty extends up to the point where a State’s effective control ceases. However, this would result in as many vertical limits as there are States, each one determined by the respective State’s level of economic, scientific, and technological progress. It would be beneficial to the spacefaring nations, which hold better overall resources to exercise their sovereignty, and for which “not even the sky would be the limit”.49 This delimitation criterion also would be continually changing as a result of technical development.50

46 47 48 49 50

Von Kármán himself never proposed a specific boundary. Cf. T. Gangale, ibidem, p. 151. Cf. R.F.A. Goedhart, The Never Ending Dispute: Delimitation of Air Space and Outer Space, Cedex, 1996, p. 63. uncopuos Legal Subcommittee, Forty-ninth session, Vienna, 22 March–1 April 2010, Matters relating to the definition and delimitation of outer space, Draft report of the Chair of the Working Group on the Definition and Delimitation of Outer Space, op.cit., p. 2. M.S. McDougal, H.D. Lasswell, I.A. Vlasic, Law and Public Order in Space, op.cit., p. 342. In 2008, for example, the United States successfully performed tests of anti-satellite weapons used for the destruction of a satellite which was at an altitude of some 250 km. See also N.M. Matte, Droit aérospatial, Paris, 1969, p. 41.

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The spatialist proposals exposed so far do not offer univocal criteria of demarcation. They are affected by the evolution of aerospace technology, and the discovery of new cooling techniques and more heat-resistant materials.51 Since the boundary between airspace and outer space is non-existent in the scientific literature, it is unlikely that scientific criteria alone may be decisive for the legal definition of the boundary itself.52 Thus, if ever a delimitation is agreed upon, it will be a matter of convenience and a means of handling conflicting interests. Rather than being based on physical properties, it will be based on the consensus that such delimitation best serves the interests of States. Spatialist proposals have never achieved overwhelming support or consensus. They rather offer an example of the challenges space lawyers need to face when searching for satisfactory and timely solutions to the legal issues which constantly arise from the fast development of aerospace technologies. 3.5

Functional Theory

In consideration of the difficulties involved in reaching an international consensus regarding the upper border of State sovereignty, and of the failure to develop a precise and lasting definition of outer space on the basis of scientific and technical criteria, a different approach was attempted with the elaboration of the functional proposal.53 In general, a normative regime is functionally defined when it regulates a certain issue or functional area and assesses the ­activities performed in that area in line with their respective objectives.54 51

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“Il n’y a pas lieu de tenir compte essentiellement des divisions verticales que les scientifiques peuvent établir, parce que d’abord ces divisions sont sujettes à contestations entre techniciens et savants et ensuite parce que le développement de la technologie de l’espace obligerait indéfiniment à remettre en cause ces divisions” [There is no need to essentially take into account the vertical divisions scientists can establish, firstly, because such divisions are subject to disputes between technicians and scientists themselves, and secondly, because the development of space technology would indefinitely oblige us to call into question those divisions]. E. Du Pontavice, Evolution du droit spatial en lui-même et par rapport au droit aérien, op.cit., p. 387. Cf. D. Goedhuis, Some Trends in the Political and Legal Thinking on the Conquest of Space, in Netherlands International Law Review, 1962, p. 121. The most prominent representatives of this theory are Chaumont and Quadri. Cf. R. Quadri, Droit international cosmique, op.cit., pp. 518–524; C. Chaumont, Le droit de l’espace, Paris, 1960, pp. 41–54. See also: N.M. Matte, Aerospace Law: Telecommunications satellites, Recueil des cours, 1980, pp. 133–135. Cf. C. Brölmann, Deterritorialization in International Law: Moving Away from the Divide Between National and International Law, in J. Nijman, A. Nollkaemper, New Perspectives on the Divide Between National and International Law, Oxford, 2007, p. 92.

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Despatialisation takes the factor of location out of law and its application. When applied to the issue at stake, functionalism mirrors the fact that airspace and outer space physically and naturally constitute a continuous and indivisible unicum, without dividing them into zones. Its proponents – the so-called functionalists – reject any division of airspace and outer space, holding that there is only one coelum around the globe, which gradually loses itself in the universe, while the concepts of airspace and outer space merely assume an ancillary role.55 For this reason, functionalism was initially backed by the major space powers, in whose interests it was not to have boundaries which might restrict their freedom to fly into space. While paying less attention to the definition of boundaries, the functional proposal ascribes greater relevance to the nature and purpose of activities. What differentiates aircraft from spacecraft, according to the functionalists, is not their location but their flying properties,56 thus transforming the problem from one of boundaries to one of activities. The speed of objects is considered a distinguishing feature in this respect: every movement at escape velocity, or one exceeding that velocity, should be considered a space flight, which, according to the functional theory, is by definition free from State interference, regardless of the altitude at which it is carried out. A space object is so fast that it can travel into the universe (super-orbital velocity) or circle the Earth (orbital velocity). The latter is the case with remote sensing and telecommunications satellites, for example. Other objects, on the other hand, are too slow to complete one or more revolutions around the Earth without propulsion. From the qualification of an object as a space object, the functionalists deduce that it should be governed by the principle of freedom of exploration and use of outer space, and not by the principle of State sovereignty, from the moment it 55 56

According to G. Gal, even if demarcation is adopted, it must be concomitant with the functional system. Cf. G. Gal, op.cit., p. 109; 113. According to Quadri: “pour nous, au contraire, doit être définie comme cosmique toute activité et également tout engin par rapport auquel les caractères du milieu physique terrestre sont indifférents, dans le sens qu’on n’utilise pas les éléments physiques qui constituent notre globe” [for us, on the other hand, any activity and also any machine in relation to which the characteristics of the terrestrial physical environment are irrelevant in the sense that the physical elements that constitute our globe remain unused, must be defined as cosmic]. R. Quadri, ibidem, p. 520; 522–523. It was noted that the difference between the functional and the spatial “approach” just happens to be the result of a change in vantage point: a spatial demarcation line is drawn on the basis of physical conditions, whereas the functional proposal pertains to the use of physical means towards a particular application. Either “approach” is, therefore, essentially physical. In this sense, see R.F.A. Goedhart, op.cit., p. 89; S. Mishra, T. Pavlasek, On the Lack of Physical Bases for Defining a Boundary between Air Space and Outer Space, op.cit., pp. 412–413.

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is put in motion by a launching vehicle, even when it is still at or just above sea level. The same considerations are applied to re-entries.57 The functionalists argue that the freedom to use and explore outer space58 implies and comprises, as a logical consequence, the faculty to have access to, and eventually return from outer space, through the airspace of other States, regardless of their permission.59 Otherwise, if a State does not have a large enough territory at its disposal to launch a spacecraft without cutting the airspace of other States, and that State is denied the right of passage, the freedom to explore and use outer space would just be a waste of words. The balance between the right to have access to outer space and the security interests of the affected States is conditioned upon the peaceful character of a mission in order for an object to legitimately pass the airspace of another State. In sum, all States have the right of access to outer space, and all activities conceived to escape the Earth’s sphere of gravity, or to return to Earth, or to circle around the Earth without any propulsion, are lawful, even if they involve the overflight of one or more other States, regardless of their distance from sea level, to the extent that the object is used for not-offensive purposes such as research, exploration, transportation, communication, refuelling, or disaster prevention and management.60 It goes without saying that this is notwithstanding the liability of the launching State(s) for any damage caused to the overflown State(s). In fact, the launching State is liable for any damage caused by the space object,61 even if it fails to escape the Earth’s gravitational pull and falls down on the territory of another State. Many legal authors have been prompted by treaty law to recognise the validity (or at least the priority) of a legal construction based on the nature of an activity. It has been emphasised that, in case of an accident, the applicability of the Outer Space Treaty and the Liability Convention does not depend on 57 Cf. R. Quadri, Droit international cosmique, op.cit., p. 545; 560–561. 58 Art. i, Outer Space Treaty. 59 Cf. E. Back Impallomeni, Spazio cosmico e corpi celesti nell’ordinamento internazionale, op. cit., p. 90; R. Müller, M. Müller, Co-operation as a Basic Principle of Legal Regimes for Areas Beyond National Sovereignty – with Special Regard to Outer Space Law, gyil, 1988, p. 569. 60 “Les libertés cosmiques doivent être “inoffensives”” [Cosmic freedoms must be “not-­ offensive”]. R. Quadri, Droit international cosmique, op.cit., pp. 570–571. The Working paper prepared by the Chair of the Working Group on the Definition and Delimitation specifies that “passage through national airspace should not be deemed peaceful if it is conducted in violation of international law, disrespects the sovereignty of the territorial State or poses unjustified risks to the local population or the environment”. Working paper prepared by the Chair of the Working Group on the Definition and Delimitation of Outer Space of the Legal Subcommittee, 17 May 2017, par. 23. 61 Art. vii, Outer Space Treaty.

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where it occurred (that is, in outer space or airspace). The only relevant point from that perspective would be whether or not the damage resulting from an accident was caused by a space object.62 However, the weakness of this argument appears obvious when considering the double standard outlined above, of absolute versus fault liability, which the Liability Convention contemplates depending on the place – airspace or outer space – where the damage occurs. It has further been argued that, when Article iv of the Outer Space Treaty obliges the Contracting States not to place in orbit nuclear weapons or any other kinds of weapons of mass destruction, it also includes the duty of States not to permit any such activity right from the moment of launching, or even before, during the preparatory stages. Space rockets and the trajectory of spaceships indeed form an operational entity which cannot be sliced into several layers of differing legal positions.63 The same reasoning was applied to Article vi of the Outer Space Treaty, which sets out the international responsibility of State Parties for national activities in outer space.64 Of course, the Outer Space Treaty did not intend to exclude responsibility for a venture failing to reach orbital altitudes, but from this it is not possible to infer the absence of a boundary. Take the second paragraph of Article vi of the Outer Space Treaty, for example, which provides that “the activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty”.65 In spite of the mention of “in outer space”, it is obvious that such authorisation has to be delivered before the launch. Otherwise, this would lead to the absurd conclusion that the space operator should apply for authorisation only when their space activity is already in outer space, thus depriving it of its utility. The expression “in outer space” used in the aforesaid norms must therefore be interpreted within its extended meaning as encompassing all those activities which are “planned for outer space”, although not in outer space yet. This extensive interpretation is the only reasonable one, which, in accordance with Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties, does not frustrate the purpose of the treaty norm.66 Such interpretation is confirmed by the Liability

62 Art. vii, Outer Space Treaty. 63 Cf. V. Alessandrone-Gambardella, Proceedings of the 1st Colloquium on Space Law, The Hague, 1958, p. 31. 64 Cf. G. Gal, op.cit., p. 112. 65 Emphasis added. 66 Art. 31 (1), Vienna Convention on the Law of Treaties (General rule of interpretation).

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­ onvention, which includes the attempted launch in the term “launching”,67 C and by States’ practice, because national space legislations require private operators to obtain authorisation before a space mission takes place.68 When adopting the extensive interpretation outlined above, ventures failing to reach orbital altitudes are included in those space activities each State which is party to the Outer Space Treaty is responsible for under the terms of Article vi. A similar reasoning may be developed for Article iv. Thus, it appears clear that neither Article iv nor Article vi imply or make it necessary to conclude that a boundary cannot be conceived. The functional proposal also has its own shortcomings. As long as the nature or characteristics of an activity are deemed decisive, those activities performed by a mix of technical means open up areas of uncertainty.69 The line between aircraft and spacecraft has become blurred and means of propulsion – motors in the case of aircraft and rockets in the case of spacecraft – are no longer a clear distinguishing feature. Hybrid vehicles, like the American space shuttle, take off as rockets and return to the Earth as gliders. Their missions are concerned with uses of outer space, despite employing wings, appendices, and other aerodynamic devices similar to those used by aircraft. Quid iuris then, according to the functional proposal, is space law the only law applicable to the aforesaid objects from launch to landing, or is air law likewise applicable when crossing the lower atmosphere? It could be argued that the sub-orbital vehicles currently under development for exploiting the space tourism market are subject to air law, since airspace will be the main centre of activities of sub-orbital vehicles in the course 67 Art. i (b), Liability Convention. The four space treaties, subsequent to the Outer Space Treaty, recall in their preamble the Outer Space Treaty and deal specifically with certain concepts included therein. Thus, they can be used in order to interpret the latter under the terms of Art. 31 par. 3 (a) of the Vienna Convention on the Law of Treaties. 68 National space legislations appear to be included in the supplementary means of interpretation which, according to the Vienna Convention on the Law of Treaties, may be used when the interpretation carried out through the general rules of interpretation “leaves the meaning ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”. See Art. 31 (General rule of interpretation) and 32 (Supplementary means of interpretation) of the Vienna Convention on the Law of Treaties. See, for example, the French law regulating space activities, in particular its Art. 2: Loi n. 2008–518 du 3 juin 2008 relative aux opérations spatiales (NOR: ESRX0700048L), and, for a comment: L.  Rapp, When France Puts Its Own Stamp on the Space Law Landscape: Comments on Act no. 2008– 518 of 3 June 2008 Relative to Space Operations, Air and Space Law, 2009, pp. 87–103. 69 Cf. G. Conetti, op.cit., pp. 45–46. Brazil highlights that, in the near future, it will be possible to develop spacecraft with characteristics similar to those of “aerospace objects”, which could be defined as objects capable of flying and performing activities both in outer space and in airspace. A/AC.105/889/Add.2, p. 3.

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of Earth-to-Earth transportation, while outer space will only be crossed briefly during the flight.70 However, the functionalist approach could also allow another position in favour of space law, considering that it is the clear objective of the owners of such sub-orbital vehicles to provide their future clients with a space tourism experience.71 Interestingly enough, the first private spaceship designed for space tourism, SpaceShipOne, was registered in the United States as a rocket, but not as a space object with the United Nations.72 One point, however, is crucial. Even admitting that the purpose of such vehicles is the performance of space activities, it is difficult to deny that they, and spacecraft in general, may jeopardize air traffic, and cause harm to the Earth’s environment on an ascending and descending trajectory through foreign airspace. In other words, contrary to the assumption of functional theory that a space object at escape velocity does not interfere with the rights of terrestrial States, every flight at circular velocity or more will pose a potential hazard at start and landing.73 This and the very small number of States supporting the functional proposal within uncopuos leads to the argument that such proposal, or a combined spatialist-functional proposal, has little chance of prevailing in practice.74

70 71

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icao Report Concept of Sub-orbital Flights, C-WP/12436, par. 6.2. According to E. Konstantinov, in case of hybrid vehicles, it is necessary to identify the “aim” and the “essence” of the activity carried out. Cf. E. Konstantinov, Some Aspects of the Spatial and Functional Delimitation between International Air and Space Law, Proceedings of the 26th Colloquium on the Law of Outer Space, Budapest, 1983, p. 81. However, as explained in the text, this criterion does not always lead to univocal conclusions. According to icao, this can be explained bearing in mind that Art. ii of the Registration Convention only requires registration for space objects “launched into Earth orbit or beyond” and not for objects performing sub-orbital flights per se. icao Report, ibidem, par. 3.3. This is admitted by R. Quadri himself. Cf. R. Quadri, Droit international cosmique, op.cit., p. 578; 583. “It is certain that in an ideal world, in Utopia, there will be no frontiers nor any need for frontiers, just as there will be no need for locked doors, and everything will be regulated functionally on a global and the most sensible basis. But until that day is reached, some form of spatialism, of which being able to call one’s home one’s castle is but another manifestation, is still perceived rightly or wrongly by most people, whether as individuals or groups, as what satisfies best their instinct and needs of self-­preservation”. B. Cheng, The Legal Regime of Airspace and Outer Space: the Boundary Problem Functionalism versus Spatialism: the Major Premises, op.cit., p. 346. Cf. Working paper prepared by the Chair of the Working Group on the Definition and Delimitation of Outer Space of the Legal Subcommittee, 17 May 2017, paras. 8–11. “Some delegations were of the view that a functional approach would be efficient for determining the scope of application of air law and space law”. Draft report of the Chair of the Working Group on the Definition and Delimitation of Outer Space, op.cit., p. 2.

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International practice confirms this conclusion. Indeed, a customary rule permitting the innocent passage of spacecraft through foreign airspace does not seem to have emerged so far, as the basic requirements for the creation of such a rule are not fulfilled.75 Spacecraft have rarely crossed the airspace of other States (lack of practice) from take-off to touchdown, and the passage of spacecraft through the airspace of other States without prior consent, whether deliberate or resulting from miscalculation or misfire, would probably constitute, and be perceived as, a violation of territorial sovereignty of those States (lack of opinio iuris):76 see, for example, the Cosmos-954 accident, where the territorial State (Canada) complained through a diplomatic claim before the Soviet Union (the launching State) not only about the environmental damages caused by the crash, but also about the fact that the Soviet satellite Cosmos-954 had violated its airspace during its unauthorised re-entry, which was not denied by the Soviets.77

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In this sense, see also F. Pocar, Voli aerospaziali e delimitazione dello spazio, op.cit., pp. 28–29; D. Goedhuis, Some Observations on the Problem of the Definition and/or the Delimitation of Outer Space, aasl, 1977, p. 305; O. De Oliveira Bittencourt Neto, Defining the Limits of Outer Space for Regulatory Purposes, Heidelberg, New York, Dordrecht, London, 2015, p. 85. Contra in order to support the functional theory, and further to attempt to demonstrate that it mirrors current international law, it has been argued that the absence of protests in case of space launchings crossing foreign airspace is proof of a tacit acceptance of the functional proposal and thus its crystallisation into international customary law. Cf. S. Gorove, Aerospace object – Legal and Policy Issues for Air and Space Law, jsl, 1997, pp. 110–111; M. Benkӧ, K.-U. Schrogl, International Space Law in the Making. Current Issues in the UN Committee on the Peaceful Uses of Outer Space, Paris, 1993, pp. 129–131; M. Lachs, Freedoms of the Air – the Way to Outer Space, in T. Masson-Zwaan, P. Mendes de Leon (Eds.), Air and Space Law: De Lege Ferenda – Essays in Honour of Henri A. ­Wassenbergh, Dordrecht, 1992, p. 244. On a more cautious note, T.L. Masson-Zwaan admits that “the relatively short period of time involved here may be an obstacle to the possible existence of a rule of customary international law”. T.L. Masson-Zwaan, The Influence of the Achievements and Failures of the Past on the Future of Outer Space Law, in T.L. Masson Zwaan (Ed.), Space Law: Views of the Future, Deventer, 1988, p. 41. P. Malanczuk is also cautious in this respect. P. Malanczuk, Space Law as a Branch of International Law, op.cit., p. 159. This is nonetheless without prejudice to the exclusion of wrongfulness when the requirements of force majeure are met. Cf. R.F.A. Goedhart, The Never Ending Dispute: Delimitation of Air Space and Outer Space, op.cit., p. 20. See the official documents provided by the Embassy of Canada at Washington, and reproduced in ilm, 1979, vol. 18, issue 4, pp. 899–930. The Protocol on Settlement of Canada’s Claim for Damages Caused by “Cosmos 954” is reproduced in ilm, 1981, vol. 20, issue 3, p. 689. Cf. B. Hurwitz, State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects, Dordrecht, 1992, p. 120.

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3.6 Conclusions A look at international practice provides sufficient elements to conclude that an international custom on delimitation already exists or, at least, is emerging. According to such rule the region that stretches from the lowest satellite orbits upwards is outside the national jurisdiction of the subjacent States. For a long time space activities were admittedly conducted by a small number of developed States. However, the requirement of generality does not mean that every member of the international community has to behave in a given manner for a corresponding international custom to exist. A representative majority of States following the same practice may be sufficient to create an international custom, provided it includes those States whose interests are specially affected, such as the maritime States for the law of the sea, and the spacefaring nations for space law.78 In this regard, the passive conduct of the non-spacefaring nations should also be considered. Even before the Outer Space Treaty was adopted and entered into force, instead of protesting against space objects orbiting around the Earth, non-spacefaring nations complimented their counterparts for their successful missions. For example, no State formally protested for the violation of its airspace as the Soviet Union launched Sputnik i in 1957,79 although its path could easily be tracked in orbit. On the contrary, the United States and other nations congratulated the Soviet Union, and used the opportunity to plead for the freedom of outer space. The Soviet Union and the United States have put into orbit a good many space objects of the same kind. Later other States and international organizations entered this domain. They did so without giving prior notice to the countries over whose territory and territorial sea their satellites were orbiting, thus without their permission and without consulting them. In a rather indirect manner, the launching States have claimed the right to explore and use outer space at those heights, and they have allowed other States to do likewise. Non-spacefaring nations have permitted satellites to orbit over their territories, never protesting through diplomatic channels, nor showing signs of

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North Sea Continental Shelf Case (Germany v. Denmark, Germany v. The Netherlands), judgement of 20 February 1969, icj Reports 1969, p. 43, par. 74. The category of the “specially affected” States means States for whom a rule holds special relevance, in particular because they are particularly active with respect to the regulated subject matter, or adversely affected by possible regulation. Cf. S. Hobe, O. Kimminich, Einführung in das Vӧlkerrecht, Tübingen, 2004, p. 184. The Soviet Sputnik i was the first artificial Earth satellite to be launched on 4 October 1957.

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d­ issatisfaction or opposition.80 Thus, the requirement of generality has been satisfied because all members of the international community participated in the State practice at stake: the spacefaring nations which operate their satellites in orbit on the one hand, and the non-spacefaring nations which reconcile themselves to the situation without protest on the other hand. The lowest perigee of satellites has gradually gained importance as a demarcation criterion. The International Law Association, in the Report of the 52nd Conference “considers that the practice of States is consistent with the view that air sovereignty does not extend as far as the lowest perigee of any satellite so far placed in orbit”.81 The International Law Association, however, did not expressly specify the boundary limit in numerical terms. On the issue, a number of authors proposed an altitude of 100 km,82 and this number is quite recurrent in State practice. At the Conference on Disarmament, Russia submitted the “Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects”, prepared jointly with China, which draft treaty defines the term outer space as: “the space above the Earth in excess of 100 km”.83 ­Australia’s Space Activities Act of 1998, as a result of amendments in 2002,84 applies to space 80

S. Gorove underlines that “States have explicitly or by implication consented or raised no substantial objection to the movement of satellites above their territories”. S. Gorove, Sovereignty and the Law of Outer Space Re-examined, aasl, 1977, p. 313. Contra G. Gal, according to whom “this tacit consent cannot be interpreted as a recognition by the States that the upper limit of sovereignty lies at the lowest perigee of the satellite orbits. There has not been a single official statement to motivate such tacit consent by the argument that State sovereignty ended vertically somewhere below the satellite orbits”. […] States’ acquiescence was rather due to political than to legal considerations”. G. Gal, op.cit., p. 103; 104. 81 International Law Association Report of the 52nd Conference, Helsinki 1966 (1967), pp. 160–185. 82 “The practice of States […] has led to the emergence of a customary rule of space law to the effect that the region at and above the line determined by the lowest perigee of satellites so far placed in orbit (approximately 100 km above sea level) is not subject to the sovereignty of underlying States and therefore is outer space”. This rule was expressly or tacitly recognised by all, or almost all, members of the international community (emphasis added)”. V.S. Vereshchetin, G.M. Danilenko, Custom as a Source of International Law of Outer Space, jsl, vol. 13, 1985, p. 27; T. Ballarino, S. Busti, Diritto aeronautico e spaziale, Milano, 1988, p. 151; F.G. von der Dunk, The Sky is the Limit – But Where does it End?, Proceedings of the 48th Colloquium on the Law of Outer Space, Fukuoka, 2005, p. 92; R.F.A. Goedhart, op.cit., p. 51; O. De Oliveira Bittencourt Neto, op.cit., pp. 81–82. 83 Art. i (a), Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects. 84 Act No. 123 of 1998 as amended, taking into account the amendments up to Act No. 100 of 2002, an Act about Space Activities and for Related Purposes.

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a­ ctivities that occur, or are intended to occur at 100 kilometres (km) of altitude or above.85 The altitude of 100 km is also taken by EU Regulation 428/2009 which defines “space qualified” products as those products which are “designed, manufactured and tested to meet the special electrical, mechanical or environmental requirements for use in the launch and deployment of satellites or high altitude flight systems operating at altitudes of 100 km or higher”.86 Several States expressly identify the limit at an altitude of 100–130 km above the mean sea level and refer to it in uncopuos sessions.87 Finally, the Working paper prepared by the Chair of the Working Group on the Definition and Delimitation officially sets the delimitation between airspace and outer space at 100 km above mean sea level.88 The altitude of 100 km is clearly for mere convenience. As available evidence shows, and considering the technologies developed over the past decades, satellites nowadays can be in orbit at a lower altitude than 100 km. Nevertheless, a conclusion can be drawn and that is: an object that is capable of completing at least one revolution around the globe without propulsion – thereby delineating the lower limit of outer space – must be considered a space object.89 In accordance with State practice, the boundary of outer space certainly does not lie above 100 km since, as yet, no country has protested against the peaceful overflight of satellites at that altitude not representing a real danger to the 85 86 87

88 89

It is worthy of note that the Australian delegation later reported to uncopuos that “identifying the 100-km altitude in the Act was not an attempt on Australia’s part to define or delimit “outer space””. A/AC.105/865/Add.1, 20 March 2006, paras. 2–6. Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering, and transit of dual-use items, OJ L 134, 29.5.2009, pp. 1–269. “The view was expressed that current and foreseeable civil aviation operations would not exceed altitudes of 100–130 km, where there was a potential danger of collision with numerous spacecraft. In that connection, the delegation expressing that view proposed that the boundary between airspace and outer space be established in that range”. Draft report of the Chair of the Working Group on the Definition and Delimitation of Outer Space, op. cit., p. 2. During the uncopuos meeting of March 1979, the Soviet representative submitted a Working Paper entitled “Approach to the solution of the problems of the delimitation of airspace and outer space” and put forward a proposal to the effect that a boundary should be drawn at an altitude of 100 km or 110 km. UN Doc. A/AC.105/C.2/L., p. 121. This proposal was then reiterated by Russia during the 41st Session of the uncopuos Legal Subcommittee, 2–12 April 2002. Working paper prepared by the Chair of the Working Group on the Definition and ­Delimitation of Outer Space of the Legal Subcommittee, 17 May 2017, par. 19. The complex issue whether a sub-orbital craft should be qualified as a space object or aircraft is not relevant to the purpose of this work and, for this reason, is not developed. On this issue see T. Gangale, How High the Sky?, Leiden-Boston, 2018, pp. 264–279.

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­ nderlying States. It is commonly assumed that State sovereignty extends to u the layer of atmosphere where the density of the air makes air travel possible, thus coinciding with navigable airspace.90 Since the ceiling of air flight is much lower than 100 km, the unwanted outcome in which the rules of air and space law apply simultaneously is thus avoided, guaranteeing the safety of air traffic.91 To sum up, there is outer space, airspace, and an in between horizontal zone which, for the time being, serves for ascending and descending spacecraft. The idea of a third zone between airspace and outer space is not new. Several authors had already conceived a zone in between the two – called mesospace or international space or Neutralia – where, similarly to the territorial sea, the innocent passage of space objects is authorized.92 Whether this third space becomes permanent will depend on the progress in aerospace technology. Indeed, the outlined conclusion on delimitation is open to future developments. On the one hand, the lowest perigee of an artificial satellite depends, to a large extent, on the capacity of orbital correction. The correction is made on the basis of mathematical calculations and mechanical intervention that compensate the disturbances to the object’s trajectory. Thus, the said “boundary” of the lowest satellite perigee is likely to be lowered somewhat, within the foreseeable future, thanks to advances in space technology. On the other hand, technical developments in aviation may result in a higher limit of the navigable airspace. Apparently, the conclusion proposed herein still embodies some uncertainty: it does not fix the precise boundary between outer and airspace. It merely states that it does not lie higher than the lowest perigee of a satellite. However, without an international agreement on delimitation, for the purpose of greater precision, one cannot go beyond what State practice offers.93 90

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This “pragmatic” approach was taken by the United Kingdom when it stated that “national sovereignty applies to airspace; no sovereignty applies in outer space. There is no established definition of height at which airspace ends and outer space begins. […] For practical purposes the limit is considered to be as high as any aircraft can fly”. ukmil, 70 byil, 1999, pp. 520–521. Contra G. Gal admits that, as long as scientists will agree that below a certain level satellites cannot orbit, then this will provide a sufficiently important criterion for space activity. However, “such a delimitation can have only a subsidiary character: the application of space law cannot depend on the province where a legally relevant set of facts takes place”. G. Gal, op.cit., p. 86. Cf. W.A. Hyman, Magna Carta of Space, Amherst, 1966, pp. 199–202. The ideal and, at least for the time being, idealistic proposal, would be the delimitation through a treaty of the frontier tempered by passage rights for the launching and re-entry of space objects under a regulation that addresses the interests of both the launching

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While this conclusion may not be satisfactory to those who seek legal certainty, it does however prove significant for the purposes of this study. It ­indicates that States are free to operate their orbital remote sensing and telecommunications satellites. However, this does not imply that a right exists to remotely sense a State’s territory, or to emit a telecommunication signal towards a receiver located within its territory, regardless of its consent. Chapters 4 and 5 will focus on the legitimacy of these activities. State and the territorial State that may be crossed by the flight path. Working paper prepared by the Chair of the Working Group on the Definition and Delimitation of Outer Space of the Legal Subcommittee, 17 May 2017, par. 22; cf. O. de Oliveira Bittencourt Neto, Defining the Limits of Outer Space for Regulatory Purposes, op.cit., p. 2; 79. Nevertheless, even if the delegations favouring delimitation outnumber those who are against it, some States, such as the United States, adhere to their traditional understanding that any attempt of delimitation would simply constitute a theoretical exercise. With the uncopuos decisions depending on the consensus among Member States, a single opposition is enough to obstruct any resolution or treaty proposing a definitive solution of the matter: “It has been agreed among the members of the Committee that it will be the aim of all members of the Committee and its subcommittees to conduct the Committee’s work in such a way that the Committee will be able to reach agreement in its work without need for voting”. Report of the Committee on the Peaceful Uses of Outer Space (A/5181) [First and Second sessions of the Committee, 1962], par. 4. (A/AC.105/PV.2). See also the Compendium on rules of procedure and methods of work related to the United Nations Committee on the Peaceful Uses of Outer Space and its Subsidiary Bodies, adopted on 5 April 2016 (A/AC.105/C.2/2016/CRP.5). According to the most common definitions which can be read in international instruments, the consensus is a decision-making technique through which a decision is adopted in the “absence of any formal objection” (UN Convention on the Law of the Sea, Art. 161 (Composition, procedure, and voting) (8) (e)), or in the “absence of any objection expressed by a participating State to the adoption of the decision in question” (2006 osce Rules of Procedure, ii (osce decision making and informal bodies) A (2). Thus, it is not equivalent to unanimity because the instrument is adopted without a vote. In this sense, see also: Consensus in UN practice: General paper prepared by the Secretariat, available from http://legal.un.org/ola/media/GA_RoP/GA_RoP_EN.pdf. On the consensus, see: G. Biscottini, La pratica del “consensus” nelle organizzazioni internazionali, Studi in onore di Giorgio Balladore Pallieri, Milan, 1978, ii, pp. 90–99; T. Treves, Une nouvelle technique dans la codification du droit international: la comité de rédaction de la conférence sur le droit de la mer, afdi, 27, 1981, pp. 70–73.

Chapter 4

Remote Sensing and Disaster Management 4.1 Introduction From a purely functional standpoint, remote sensing entails “transferring information” related to the Earth using space techniques and complementary human skills. It exploits a specific physical phenomenon: objects emit or reflect electromagnetic energy with different measurable wavelengths, which are received by sensors on the satellite and converted into raw data. The data is then transmitted through telemetry to a ground station (known as downlink phase). Remotely sensed data therefore results from several phases, which can be schematically divided into: space, ground and user segment.1 In the first segment relevant data are gathered and transmitted to ground stations, in the second the data are processed and interpreted. And finally, the analysed data are disseminated.2 The wide range of remotely-sensed data obtained has led the uncopuos to focus initially on the potential of remote sensing to enable the economic growth of all nations.3 It corresponds particularly well with the final objective of space activities which, according to Article i of the Outer Space Treaty, shall 1 Cf. A.E. Gotlieb, The Impact of Technology on the Development of Contemporary International Law, Recueil des cours, 1981, vol. 1, p. 266; L. Peyrefitte, The Legal Regime of Remote Sensing of the Earth from Space, Proceedings of the 34th Colloquium on the Law of Outer Space, Montreal, 1991, p. 288; E. Back Impallomeni, Telerilevamento, in Enciclopedia del diritto, vol. i, 1997, p. 971. 2 Since remote sensing is carried out both in outer space and on Earth, “the legal regulation of the space-based phase of ers [Remote Sensing of the Earth from Outer Space] cannot be separated from the regulation of the terrestrial phase, just as an action cannot be separated from its result”. uncopuos Legal Subcommittee, Fifty-second session. Responses to the set of Questions provided by the Chair of the Working Group on the Status and Application of the Five United Nations Treaties on Outer Space, Vienna, 8–19 April 2013, p. 7. 3 Despite their many advantages, aerial surveys suffer from serious limitations in respect to satellite remote sensing. Aircraft require a ground base and cannot remain in flight for extended periods of time, which makes repetitive observations difficult to obtain. Most importantly, an aircraft as a remote sensing platform operates from relatively low altitudes and can therefore cover only very limited ground. Since the same area can have a radically different appearance when viewed from different angles or at different times of the day, the added value provided by satellite remote sensing appears clear. Sensed data are the only available images when the area is otherwise inaccessible. On the capacities of sensing devices, see C.Q. Christol, Remote Sensing and International Law, aasl, 1980, p. 380.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004388369_006

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benefit all countries.4 At the same time, it seemed to threaten the overriding interests of States and their sovereignty over own natural resources. Apprehension of the impact of remote sensing technology, in tandem with a conviction that it will remain for an indefinite period in the hands of the most advanced nations, understandably led to claims for appropriate and timely international safeguards. On account of such needs, uncopuos responded, from 1971 onwards, developing a framework that could strike a balance between conflicting interests. On the one hand, there was the national interests of technologically less developed countries, with limited data, whose economic and information dependence made them vulnerable, and on the other, the more advanced industrialized countries whose remote sensing systems enabled great opportunities in the exploration of the earth’s resources from outer space. In 1986 the General Assembly finally adopted by consensus5 a set of 15 “Principles Relating to Remote Sensing of the Earth from Outer Space”.6 Still today, it remains the first and, internationally, a key milestone in remote sensing.7 These principles are in the form of a General Assembly resolution and not, as it was hoped by some countries, a treaty. The Resolution, prior to prescribing specific obligations upon remote sensing States on matters of cooperation and technical assistance, as well as on environmental protection and disaster management, defines remote sensing as “the sensing of the Earth’s surface from space by making use of the properties of electromagnetic waves emitted, reflected or diffracted by the sensed objects, for the purpose of improving natural resources management, land use and the protection of the environment”.8 4 Prior to the launch of the first civilian American landsat-1 in 1972, remote sensing was exclusively developed and used for military purposes. Later on, however, because of its ability to improve the knowledge of the morphologic and environmental conditions on Planet Earth, it was used in several other areas such as disaster prevention and assistance, meteorology and weather forecasting, crop monitoring, pollution monitoring and environmental protection, cartography and land use, marine and Earth resources discovery and management. 5 On consensus see Chapter iii, footnote n. 93. 6 unga Resolution A/RES/41/65, Principles Relating to Remote Sensing of the Earth from Space, adopted on 3 December 1986, 95th plenary meeting [hereinafter the Resolution]. 7 “Though the Principles do not directly entail obligations on States, they certainly serve as a solid legal basis for their ers [Remote Sensing of the Earth from Outer Space] policy”. ­u ncopuos, Legal Subcommittee, Fifty-second session. Responses to the set of Questions provided by the Chair of the Working Group on the Status and Application of the Five United Nations Treaties on Outer Space, Vienna, 8–19 April 2013, p. 7. 8 Principle I (a). Within the 1993 Workshop Droit, Télédétection et Environnement, A.C. Kiss underlined that the notions of natural resources management on one hand and protection of the environment on the other hand are inseparable, as is confirmed by the Final Acts of the Rio de Janeiro Conference and, in particular, by the concept of sustainable development.

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The use of remote sensing for military purposes seems to be implicitly excluded.9 Moreover, having identified only three specific purposes, any other remote sensing activity undertaken for different ends will likewise fall outside its scope of application. The Resolution excludes from the concept of remote sensing any other terrestrial activity of processing and interpreting sensed data, covered by a subsequent and broader definition of “remote sensing activities”. Indeed, Principle i (e) extends the geographical scope of application of some of the principles beyond outer space: in its definition of “remote sensing activities” it includes a wider range of operations on Earth: “the operation of remote sensing space systems, primary data collection and storage stations, and activities in processing, interpreting and disseminating the processed data”. However, not all the Principles apply to “remote sensing activities”, some only apply to “remote sensing”. Some authors contend that satellites with a resolution higher than tenmetre should not be subject to the Resolution,10 arguing that satellites with such resolution serve to control human activity instead of pursuing the goals of improving the management of natural resources, land use and environmental protection.11 A rather draconian solution, which seems to neglect the importance of high-resolution imagery for environmental, land-use and disaster prevention-management purposes. High-resolution sensors, for example, are able to measure the sea level and to verify the degree of damage on buildings

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Débats, in Droit, Télédétection et Environnement, Strasbourg, 1994, p. 272. For the complex drafting history of a remote sensing definition within the United Nations, see C.Q. Christol, Remote Sensing and International Law, op.cit., pp. 383–386. Cf. R. Jakhu, International Law Governing the Acquisition and Dissemination of Satellite Imagery, jsl, 2003, p. 88. In this respect, some problems could be raised by the recent State practice of system mergers, combining civilian and military remote sensing programs. As an example, one may recall the U.S. Presidential Directive of 5 May 1994, which established the fusion of civilian and military programs of meteorological satellites in the polar orbit, including missions of environmental surveillance. On the dual-use issue, see L. Zagato, L’innovazione militare nella competizione economica fra sistemi, in M.L. Picchio Forlati, Controllo degli armamenti e lotta al terrorismo tra Nazioni Unite, nato e Unione Europea, Padova, 2007, pp. 129–132. The term “resolution” describes the “seeing” capability of a satellite and corresponds to the size of the smallest object that can be observed by that satellite. A resolution of 1 metre, for example, means that each pixel in the picture represents a square area of 1 × 1 metre. Thus, the higher the resolution of satellite imagery, the more detailed and precise the information of the sensed objects. In this sense see: G. Catalano Sgrosso, Aspetti giuridici del telerilevamento, in Outer Space Law, New Developments and Prospects, Padua, 1994, pp. 159–160.

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after a disaster has occurred. The present Principles do not take into account resolution, nor do they contemplate the ten-metre resolution limit.12 Remarkable developments are emerging: namely, the privatization and commercialization of remote sensing activities, the introduction of new remote sensing technologies, and the adoption of national legislations on ­remote sensing. They all point to a trend towards exceptions and limitations to customary norms in the field of remote sensing, which need to be re-examined and assessed. For example, new commercial and civilian earth-observation satellites collect high resolutions images (1 m or more). Other advanced technologies are also being launched on the market, such as synthetic aperture radar and multi- and hyper-spectral imaging, which improve the effectiveness of remote sensing applications, blurring the traditional difference between civilian and military remote sensing satellites. All these developments suggest the need to assess whether the entire Resolution will stand the test of time. The main focus of this analysis is to assess the legitimacy of satellite observation of a State affected by a disaster and the dissemination of collected data without its consent. This analysis will subsequently verify whether the sensing State has specific obligations as regard to: (1) the transfer of remote sensing technologies to developing States; (2) the sharing of collected data with the sensed State; and (3) the transmission of collected data, that the State effectively or potentially affected may use, regardless of whether or not it is a sensed State. 4.2

The Legal Value of General Assembly Resolutions

Determining the legal value of the resolutions of international organisations and their interpretation are two distinct, yet linked, hermeneutic activities. While most studies focused on the former, clearly setting out applicable rules 12

Contra A. Moreno : “par ailleurs, pour ce qui concerne la Résolution 41/65, l’absence de distinction tenant à la résolution des données peut difficilement jouer en faveur d’une extension du principe de libre collecte à ce type de données. En effet, il ne faut pas oublier que la Résolution est un texte de compromis pour lequel le consensus le plus large était recherché” [Moreover, with regard to Resolution 41/65, the lack of distinction as far as the resolution of data is concerned can hardly be used in favour of extending the principle of free collection to this type of data. Indeed, it should not be forgotten that the Resolution was a text of compromise for which the broadest consensus was sought]. A. Moreno, La commercialisation des images satellites. Approche juridique, op.cit., p. 58. It is not clear, however, how the fact that the Resolution was the result of a compromise may allow the introduction of distinctions which are not contemplated.

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to interpret them is equally important. Determining the legal effects of a resolution is only one aspect of its interpretation.13 When interpreting resolutions of international organisations, namely UN General Assembly resolutions, the rules of the Vienna Convention on the Law of Treaties must be carefully assessed. On the one hand, a resolution, like a treaty, entails meeting the wills and aspiration of other countries and comingtogether to negotiate its drafting. On the other, at the same time, it is a unilateral act, an assertion of the will of the organ adopting it.14 However, especially Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties seems to apply even when interpreting the resolutions of international organizations, since it contains general principles of interpretation.15 It is a matter of common sense that the interpretation, of whatever rule, shall be carried out in good faith and in accordance with the ordinary meaning given to the terms of the rule in their context and based on its object and purpose.16 The supplementary means established by Article 32 can also be considered to interpret the resolutions of international organizations. Given the political nature of the General Assembly resolutions,17 the travaux préparatoires and the circumstances of their adoption – who and how many have voted for and against, and why they have done so – may be of greater significance than in the case of treaties. In determining the legal effects of a UN General Assembly resolution, a decisive factor to consider is extrinsic since it comes from the States’ practice 13 14 15

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Cf. M.C. Wood, The Interpretation of Security Council Resolutions, Max Planck Yearbook of United Nations Law, 1998, vol. ii, p. 76. Cf. H. Thirlway, The Law and Procedure of the International Court of Justice 1960–1989, byil 67, 1996, p. 29. M.C. Wood, op.cit., p. 95. Under Art. 31 of the Vienna Convention on the Law of Treaties treaty interpretation must be based on the text, context, object and purpose, and good faith. On the customary value of Art. 31 of the Vienna Convention on the Law of Treaties, see infra footnote n. 42. Howrani and 4 others, unat Judgement n. 4 (1951), Judgements of the United Nations Administrative Tribunal (junat), p. 10. According to Article 10 of the United Nations Charter, the General Assembly may make recommendations to the Members of the United Nations or to the Security Council or to both. There is no need here to dwell on the several attempts of international law scholars to recognise, despite the wording of this article, and at least under certain circumstances, legislative powers of the UN General Assembly. Cf. R. Quadri, Diritto internazionale pubblico, Napoli, 1968, pp. 348, 362; F. Blaine Sloan, The Binding Force of a “Recommendation” of the General Assembly of the United Nations, byil, 1948, pp. 1–33; R.A. Falk, On the QuasiLegislative Competence of the General Assembly, ajil, 1966, vol. 60 n. 4, pp. 782–791; M.G. Marcoff, Traité de droit international public de l’espace, op.cit., pp. 123–126; B. Conforti, Diritto internazionale, Napoli, 2002, pp. 61–62.

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prior, concurrent or subsequent to the UN drafting process.18 Indeed, although innovative at the time of the adoption, a General Assembly resolution, particularly when it is approved unanimously or per consensus, or by a significant majority, may later contribute to the formation of customary rules and may be a means for articulating such rules, and for clarifying their content.19 On the other hand, contrary practice cancels the evidence that a resolution might provide in relation to the existence of opinio iuris. This was made clear in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.20 In this opinion, the International Court of Justice underlined that General Assembly resolutions are not binding as such. They can nonetheless codify already existing customary norms or contribute to the creation of new customary norms.21

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For a detailed analysis on the subject, see M.D. Oeberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the icj, ejil, 2005, pp. 879–906. On the difference between law-declaring and law-developing resolutions, see Institut de Droit International (13–22 September 1987), resolutions of the Cairo session, The Elaboration of General Multilateral Conventions and of Non-Contractual Instruments having a Normative Function or Objective, in rdi 1988, pp. 265–269. General Assembly resolutions “can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio iuris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio iuris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio iuris required for the establishment of a new rule”. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8 July 1996 i.c.j. Reports 1996, p. 254, par. 70. B. Cheng argued that customary law would emerge instantaneously through the unanimous adoption of a resolution within the General Assembly. A careful analysis of the theory of “instant” customary law, however, shows that it is not original. When its main defender argues that “the binding force of these principles comes not from the resolution, but from their acceptance by Member States as part of international law. They are, therefore, binding even before the resolution, although the resolution helps to establish their existence and contents” (B. Cheng, Studies in International Space Law, Oxford, 2004, p. 139), he merely reiterates that, at the time of its adoption, a General Assembly resolution can only derive its binding force from customary law (law-declaring resolution). Indeed, as long as the principles contained in a resolution need to be considered binding as such by the international community before their adoption, what is the only feasible test thereof if not previous practice? In view of the decentralised nature of the international legal system, an assessment of the observance or non-observance of the rule is needed in order to distinguish non-binding commitments from binding commitments, and it necessarily also includes a time element. (The international custom “turns its face to the past”. North Sea Continental Shelf (Federal Republic of Germany/Denmark), Dissenting opinion of Judge V. Koretsky, icj Reports 1969, p. 156).

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The relevance of the number of affirmative or contrary votes and abstentions can once again be deduced from the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, as the Court stated that the resolutions at stake, in that particular case, “fall short of establishing the existence of an opinio iuris” because they “have been adopted with substantial numbers of negative votes and abstentions”.22 Yet, the absence of a formal objection during its adoption cannot be considered per se decisive to clarify its value. Even the States that voted in favour may have done so with the mere intent of recommending a desirable, not compulsory, conduct, or simply because “it is politically unpopular to vote otherwise”.23 Indeed, States often tend to vote in favour because they do not regard a resolution as binding (opinio non iuris). It is symptomatic that in the General Assembly the freedom to comply or not to comply with a particular resolution is often claimed or underlined even by States that support its adoption through their vote. Thus, States which vote in favour are not estopped from saying that the principles it contains are not legally binding. This is even more true when the General Assembly adopts resolutions by consensus, without voting, that may reveal abstentions and votes against.24 22

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Nothing explicit is said about the importance of the representative quality of the supporting States, but in that opinion, the Court gives weight to the States engaged in a policy of nuclear deterrence. It is reasonable to deduce that those States which are actually engaged in a certain activity have a strong say in how that activity is regulated. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, i.c.j. Reports 1996, par. 71. S.M. Schwebel, The Effect of Resolutions of the United Nations General Assembly on Customary International Law, Proceedings of the 73rd Annual Meeting of the American Society of International Law, 1979, pp. 301–302; S.M. Schwebel, Justice in International Law. Selected Writings, Cambridge, 1994, p. 500; T. Treves, Diritto internazionale. Problemi fondamentali, Milano, 2005, p. 264; G. Arangio Ruiz, The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, Recueil des cours, 1972, vol. iii, p. 457. G. Cahin shows that resolutions adopted by consensus are less reliable in reconstructing an opinio iuris than individual votes. Cf. G. Cahin, La coutume internationale et les organisations internationales, Paris, 2001, pp. 349–350. Contra, with specific reference to the Resolution, A.C. Kiss “on peut affirmer que l’adoption par consensus, par l’Assemblée Générale, de la résolution 41/65, a exprimé la conviction de la communauté internationale quant au bienfondé de ces principes […] dans le droit international général, la pratique n’est pas toujours aisée à démontrer – un laps de temps est nécessaire pour l’observer et il y a toujours des difficultés à savoir ce que font les Etats. Par contre, on a admis que l’existence de cette pratique pourrait être prouvée par l’absence d’acte contraire démontrant que les Etats agissent autrement […] aucun acte n’a prouvé cette volonté de la part d’un Etat, il semble qu’on puisse conclure à l’existence d’un droit coutumier” [It can be said that the adoption by consensus of Resolution 41/65 by the General Assembly

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Once the consensus is reached, it cannot be excluded that some States, sharing the consensus, claim their own interpretations before or after the text is adopted.25 In the specific case of the Resolution, the interpretative declarations submitted by Colombia, Algeria, Zaire, Vietnam and Yugoslavia pointed out that the sole reason for their consent was to contribute to the promotion of international cooperation and to gradually move towards the elimination of the technological gap between developed and developing countries. In particular, Colombia’s position proved critical in relation to the access to the benefits of remote sensing.26 4.3

The Legal Value of the Remote Sensing Principles

Most scholars argue that the Remote Sensing Principles have acquired a customary value. To support this thesis they recall that national space legislations often contain references to the Resolution. Moreover, the various bilateral agreements signed by national space agencies explicitly recall in their preamble the “Principles governing the exploration and use of outer space defined by the United Nations treaties and the principles adopted by the General Assembly relating to the remote sensing of the Earth from space”. Reference is also made to the practice of most States and of international organisations, such as the European Space Agency, which is assumed to be consistent with the  ­Principles thus implicitly, but unequivocally showing the acceptance of

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e­ xpressed the conviction of the international community as to the soundness of these principles […] in general international law, the practice is not always easy to demonstrate – a period of time is necessary to observe it and there are always difficulties in knowing what States are doing. On the other hand, it has been admitted that the existence of this practice could be proved by the absence of a contrary act demonstrating that the States act otherwise […] no act has proved this will on the part of a State, it appears possible to conclude in favour of the existence of a customary norm]. A. Kiss, Débats, in Droit, Télédétection et Environnement, Strasbourg, 1994, p. 272. “In actual fact it has a recommendation value even though, having been adopted by “consensus”, it expresses the legal opinion of the whole community”. G. Catalano Sgrosso, Natural Disaster Management, in Proceedings of isro-iisl Space Law Conference 2005, Bringing Space Benefits to the Asian Region, Bangalore, 2006, p. 27. Cf. T. Treves, Diritto internazionale. Problemi fondamentali, op.cit., p. 152. It could be, using the words of S.M. Schwebel, a “false consensus”, in the sense that “a cascade of reservations made at the time of adoption of those resolutions, and a torrent of indifference or opposition which has been manifested since, demonstrates that support, still less opinio iuris, is absent”. S.M. Schwebel, Justice in International Law. Selected Writings, op.cit., p. 511. Cf. G. Catalano Sgrosso, Mise en œuvre des principes des Nations Unies de 1986 sur la télédétection. Le point de vue du juriste, in Droit, Télédétection et Environnement, op.cit., p. 201.

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the Principles themselves.27 Other authors conversely reject such arguments and affirm that the Principles do not correspond to customary law, as certain major space powers do not put some of them into practice. They underline that remote sensing activities are often carried out without considering the needs of developing countries, as Principle ii would require,28 and that the  States about to undertake a remote sensing activity often do not inform the Secretary General of the United Nations, as Principle ix would prescribe. Finally, they note that many States strongly oppose incorporating the principles into a conventional text and, due to this, a lack of opinio iuris is deduced.29 Contrarily to such drastic scholarly opinion, the issue of the legal status of the Principles needs to be looked into one by one. It is worth underscoring that it may be wrong and even dangerous to affirm that a norm, without the support of a consistent international practice, already exists. In fact, it may induce 27

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Cf. S. Courteix, Towards the Legal Recognition of a New Method of Proof for the Defense of the Environment: Satellite Images, Proceedings of the 37th Colloquium on the Law of Outer Space, Jerusalem, 1994, pp. 223–225; J.I. Gabrynowicz, Expanding Global ­Remote Sensing Services, Proceedings of the Workshop on Space Law in the Twenty-First ­Century, 3rd UN Conference on the Peaceful Uses of Outer Space, A/Conf. 184/7, Vienna, 1999, pp.  100–104; M. Williams, The UN Principles on Remote Sensing Today, Proceedings of the 48th Colloquium on the Law of Outer Space, Fukuoka, 2005, pp. 3–5; “Nowadays it is valid to say that the Principles reflect customary international law and are therefore binding”. M.  ­Williams, Space Law and Remote Sensing Activities, in Proceedings of the United Nations/Brazil Workshop on Space Law, 2005, p. 285. According to P. Gaudrat and P.H. Tuinder “these Principles […] can now be considered as being part of customary international space law”. P. Gaudrat, P.H. Tuinder, The Legal Status of Remote Sensing Data: Issues of Access and Distribution, in G. Lafferranderie, D. Crowther, Outlook on Space Law over the Next 30 Years, The Hague/London/Boston, 1997, p. 353; “in view of their general nature, the legal status of the Principles is similar to that of general Principles of international law”. F.G. von der Dunk, United Nations Principles on Remote Sensing and the User, in R. Harris (Ed.), Earth Observation Data Policy and Europe, Lisse, Abingdon, Exton,­ Tokyo, 2002, p. 29. “In reality, remote sensing activities do not take into particular consideration the needs of the developing countries, as Principle ii says”. J. Monserrat Filho, Commentary Paper on “Remote Sensing Images and GI Information: Policy and Legal Perspectives”, isro-iisl Space Law Conference 2005, Bringing Space Benefits to the Asian Region, Bangalore, 2006, p. 32. Cf. M. Bourbonnière, L. Haeck, Canada’s Remote Sensing Program and Policies, in J. Baker, K. O’Connell, R. Williamson, Commercial Observation Satellites: at the Leading Edge of Global Transparency, Santa Monica, 2001, pp. 263–287; in this sense, see also O. De SaintLager, who adds, however, “il est clair que tous les Etats ayant adopté ce code de bonne conduite feront leurs meilleurs efforts pour en respecter les dispositions” [It is clear that all States which have adopted this code of conduct will make their best efforts to comply with its provisions]. O. De Saint-Lager, Aspects juridiques de la télédétection spatiale, in Droit, Télédétection et Environnement, op.cit., p. 26.

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a false impression that there are several violations to the norm itself. This can obviously affect the credibility of international law. On the contrary, with no rules there can be no violations. Some of the Principles recalled by the Resolution, as the permanent sovereignty of States over their natural resources, are firmly established in ­international customary law.30 Still, their concrete implications on the remote sensing regulation have to be carefully assessed. Other Principles reiterate Outer Space Treaty norms and, although redundant, specify that they also apply to remote sensing. This is the case of Principle ii of the Resolution when compared to ­Article i of the Outer Space Treaty. They are verbatim except for the mere replacement of “exploration and use of outer space” with “remote sensing activities” and the addition of two words – “social” and “technological”. As a consequence, the core idea of Outer Space Treaty that the exploration and use of outer space “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development” becomes the Principle according to which “remote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development”.31 Principle iii can be considered a variation of Article iii of the Outer Space Treaty which extends the impact of the latter. In addition to the UN Charter, it explicitly recalls the Outer Space Treaty and the relevant instruments of the itu, which shall be all respected by States when they carry out their remote sensing activities. These provisions restating Outer Space Treaty rules are as such legally binding upon the States Parties. The question that may be raised is whether the affirmed principles have, in the meantime, become principles of general international law.32 30 Principle iv. See unga resolution 1803 (xvii), Permanent Sovereignty over Natural Resources, adopted on 14 December 1962. The fact that the principle of the permanent sovereignty of States over their natural resources is part of customary law was recognised by the International Court of Justice in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement of 19 December 2005, icj Reports 2005, par. 244. 31 Emphasis added. 32 According to the prevailing doctrine, Outer Space Treaty norms have customary value in consideration of the high number of ratifications, the consistent States’ practice and opinio iuris. Cf. V.S. Vereschetin, G.M. Danilenko, Custom as a Source of International Law of Outer Space, op.cit., p. 32; E. Back Impallomeni, Sfruttamento delle risorse della Luna e patrimonio comune dell’umanità, in Outer Space Law. New Developments and Prospects, Padova, 1994, p. 226; E. Zamuner, I trattati che creano regimi obiettivi nel diritto internazionale, Comunicazioni e studi dell’Istituto di diritto internazionale dell’Università di Milano, 2007, xxiii, p. 965; G. Den Dekker, The Law of Arms Control. International Supervision

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Other provisions, such as Principle vi, do not embody peremptory wording as they merely “encourage” States to adopt a certain conduct.33 Yet the remaining provisions of the Resolution need a more in-depth analysis. From the aforesaid, clearly neither the thesis affirming, nor the one denying the binding nature of the principles in the Resolution can be fully followed. In any case, even provisions without customary value may still have legal effects. Good faith prevents the State voting in favour of a resolution from affirming the wrongfulness of a conduct that is consistent with the resolution itself.34 Furthermore, whether the Principles of Remote Sensing can be used

33

34

and Enforcement, The Hague, 2001, p. 65; F. Pocar, La codificazione del diritto dello spazio ad opera delle Nazioni Unite, in F. Francioni, F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993, p. 36. According to other authors, customary principles include the freedom of exploration and use of outer space by all States, as well as the prohibition of national appropriation of outer space, but whether they also include the rules on responsibility and liability, as laid down in the Outer Space Treaty, for example, is less certain and would require careful analysis. In this sense: P. Malanczuk, Space Law as a Branch of International Law, op.cit., p. 159; D. Goedhuis, Some Observations on the Problem of the Definition and/or the Delimitation of Outer Space, op.cit., p. 294; F. Durante, La codificazione dei principi sull’esplorazione e l’utilizzazione dello spazio extra-atmosferico, op.cit., pp. 159–166. “In order to maximize the availability of benefits from remote sensing activities, States are encouraged, through agreements or other arrangements, to provide for the establishment and operation of data collecting and storage stations and processing and interpretation facilities, in particular within the framework of regional agreements or arrangements wherever feasible”. Emphasis added. Principle vi. Cf. T. Treves, Diritto internazionale. Problemi fondamentali, op.cit., p. 266. “Il serait erroné d’en conclure qu’une situation d’estoppel ne puisse jamais se présenter. Il sera nécessaire à cet effet que des éléments particuliers viennent s’ajouter au vote afin de susciter chez d’autres Etats une confiance légitime” [It would be wrong to conclude that a situation of estoppel can never arise. For this purpose, it will be necessary that special elements be added to the vote in order to create a legitimate expectation among other States]. R. Kolb, La bonne foi en droit international public. Contribution à l’étude des principes généraux de droit, op.cit., pp. 519–520; The Permanent Court of International Justice, in the advisory opinion on the Monastery of Saint Naoum (1924) regarded as conclusive the votes cast by States directly concerned in favour of an Assembly resolution recognising the competence of the Principal Allied and Associated Powers to settle the frontiers of Albania. Permanent Court of International Justice, B09, Monastery of Saint-Naoum, Advisory Opinion of 4 September 1924, p. 13. Judge Lauterpacht emphasised that, despite recommendations not having binding force, they still have some legal effects: “it is one thing to affirm the somewhat obvious principle that the recommendations of the General Assembly […] are not legally binding upon them in the sense that full effect must be given to them. It is another thing to give currency to the view that they have no force at all whether legal or other”. He concluded that “the State in question, while not bound to accept the recommendation, is bound to give it due consideration in good faith. If […] it decides to disregard it, it is bound to explain the reasons for its decision”. Cf. Separate Opinion of Judge

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as a means to interpret the Outer Space Treaty is worth verifying in light of the Vienna Convention on the Law of Treaties. 4.4

The Principles of Remote Sensing as a Means to Interpret the Outer Space Treaty

The relevance of the Principles of Remote Sensing to the interpretation of the Outer Space Treaty is twofold, depending on whether they reflect or not customary international law. Article 31 paragraph 3 (a) of the Vienna Convention on the Law of Treaties states that, for the purpose of treaty interpretation, one shall properly consider, the contextual environment as well as “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”. Article 31 paragraph 3 (b) goes on to say that one shall consider “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. For interpretative purposes, the latter provision makes it compulsory to consider the practical application of the treaty, if a tacit agreement among the parties regarding the interpretation of the treaty can be deduced therefrom. To this purpose a mere concordance between the parties is required.35 The International Law Commission confirmed this position when stating that, to distinguish a subsequent agreement under Article 31, paragraph 3 (a), and a subsequent practice that “establishes the agreement” of the parties under Article 31, paragraph 3 (b), one shall consider that only the former presupposes a “single common act”.36 In virtue of the principle of the equivalence between the effects of the agreement and of the custom, one may argue that the “practice in the application of the treaty” becomes significant for interpretative purposes even when it meets the requirements of a customary rule.37 In any case, the result is not different

35 36 37

Lauterpacht in the Advisory Opinion Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, 7 June 1955, icj Reports 1955, in particular pp. 118–119. “Practice” is simply the sum total of a number of applications – any applications – as long as they “establish the agreement of the parties regarding its interpretation”. U. Linderfalk, On the Interpreation of Treaties, Dordrecht, 2007, pp. 162; 166; 169. ilc, Chapter vi Subsequent agreements and subsequent practice in relation to the interpretation of treaties, A/71/10, p. 195. Cf. F. Capotorti, Sul valore della prassi applicativa dei trattati secondo la convenzione di Vienna, in Le droit international à l’heure de sa codification, études en l’honneur de Roberto Ago, Milano, 1987, I, p. 210.

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if customary international rules are included, under Article 31 paragraph 3 (c), within the “relevant rules of international law applicable in the relations between the parties”. Since relevant customary international rules perfectly fall within this notion, they shall be taken into account for the purpose of treaty interpretation.38 Thus, the correspondence of the most relevant Principles of Remote Sensing to customary law will be assessed. In this regard the possibility is admitted of using not only those customary rules which were applicable at the time when the interpreted treaty was concluded, but also those applicable at the time of interpretation. This dynamic approach applies when treaty terms are receptive to interpretation in the light of legal standards developed at a later stage. In more precise terms, it depends on whether the parties intended to incorporate in the treaty some legal concepts with a meaning that would remain unchanged, or intended to leave certain terms as elastic and open-ended, susceptible of receiving the meaning they might acquire in the subsequent development of the law.39 When the “practice in the application of the treaty” cannot be regarded either as an agreement between all the parties or as custom, it may still be used as a supplementary means of interpretation.40 In fact, Article 32 of the Vienna Convention on the Law of Treaties allows recourse to “supplementary means of interpretation”41 in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or when it leads to a result which is manifestly absurd or unreasonable.42 Among the 38

39

40 41 42

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, i.c.j. Reports 1971, p. 16, par. 53; Iran-United States Claims Tribunal, decision in case n. A/18 Concerning the Question of Jurisdiction over Claims of Persons with Dual Nationality, ilm, vol. 23, n. 3, 1984, pp. 489–510; United States – Definitive Anti-­Dumping and Countervailing Duties on Certain Products from China – AB-2010-3 – Report of the Appellate Body, WT/DS379/AB/R, 11 March 2011, paras. 307–308. In this sense, see M. ­Herdegen, Interpretation in International Law, mepil, 2013, par. 22; U. Linderfalk, ibidem, pp. 177–178. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, icj Reports 1997, p. 7, par. 112. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, i.c.j. Reports 2009, p. 213, par. 66. U. Linderfalk, op.cit., pp. 179–181; C. Lo, op.cit., p. 256. F. Capotorti, ibidem, p. 213. Art. 32 (Supplementary means of interpretation), Vienna Convention on the Law of Treaties. According to the International Court of Justice, Articles 31 and 32 of the Vienna Convention on the Law of Treaties codify customary international law: see Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010, p. 14, at p. 46, par. 65; ­Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment,

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supplementary means of interpretation, it lists the travaux préparatoires and the circumstances in which the treaty was concluded. However, this list is not exhaustive, as the wording of the norm illustrates, where “preparatory work of the treaty and the circumstances of its conclusion” comes after the word “including” or, in the French text of the Convention, after “notamment”.43 It follows that other supplementary means of interpretation may be used, which include the practice in the application of the treaty, although it does not entail a tacit agreement or a custom. The International Law Commission confirms that “subsequent practice” in the broad sense – under Article 32 of the Vienna Convention on the Law of Treaties – covers any application of the treaty, after its conclusion, “by one or more parties”, and that “it can take various forms. Such ‘conduct by one or more parties in the application of the treaty’ may, in particular, consist of a direct application of the treaty in question, conduct that is attributable to a State party as an application of the treaty, a statement or a judicial pronouncement regarding its interpretation or application. Such conduct may include official statements concerning the treaty’s meaning, protests against non-­ performance or tacit acceptance of statements or acts by other parties”,44 as well as the pronouncements of an expert treaty body.45

43 44 45

i.c.j. Reports 2009, p. 213, at p. 237, par. 47; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, p. 43, at pp. 109–110, par. 160; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, i.c.j. Reports 2004, p. 136, at p. 174, par. 94; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, i.c.j. Reports 2004, p. 12, at p. 48, par. 83; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, i.c.j. Reports 2002, p. 625, at p. 645, par. 37; LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 466, at p. 501, par. 99; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, i.c.j. Reports 1999, p. 1045, at p. 1059, par. 18; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, i.c.j. Reports 1994, p. 6, at pp. 21–22, par. 41. On this point see J.P. Cot, La conduite subséquente des parties à un traité, in Revue générale de droit international public, 1966, p. 632. ilc, Chapter vi Subsequent agreements and subsequent practice in relation to the interpretation of treaties, A/71/10, pp. 148–149. ilc, ibidem, p. 235. F. Pocar on the contrary argued that, for the subsequent practice in the application of a treaty to be used as a supplementary means of interpretation, it needs to be “consistent and common to all States Parties”. F. Pocar, The Normative Role of ­u ncopuos, Outlook on Space Law over the Next 30 Years, op.cit., p. 419. The ilc has also explicitly excluded frequency to be “a necessary element of the definition of the concept of ‘subsequent practice’ in the broad sense (under Art. 32)”, although it may condition its weight as a supplementary means of interpretation. ilc, ibidem, pp. 122; 148.

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From the International Court of Justice’s case law, one can similarly infer that subsequent practice fulfilling all conditions as set out by Article 31, paragraph 3 (b), of the Vienna Convention on the Law of Treaties is not the only form of subsequent practice which may be used to interpret a treaty. In the case of Kasikili/Sedudu Island, for example, the International Court of Justice held that a report by a technical expert commissioned by one of the parties, which had “remained at all times an internal document”,46 although it did not represent a “subsequent practice in the application of the treaty which establishes the agreement of the parties” according to Article 31, paragraph 3 (b), could “nevertheless support the conclusions” reached by the Court through other means of interpretation.47 In the Whaling Judgement, the International Court of Justice was even clearer. The relevant aspect of the Whaling Judgment concerned the Court’s assessment of the weight of resolutions issued by the International Whaling Commission – the supervisory treaty body of the Whaling Convention – for the interpretation of the Whaling Convention. This Commission has the capacity to amend certain provisions of the Convention by three-fourths majority vote (though amendments will not bind any State Party that objects). It can also render non-binding recommendations. According to the Court, when such recommendation are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of a treaty.48 The wto dispute settlement bodies also distinguish between “subsequent practice” that satisfies the conditions of Article 31, paragraph 3 (b), and other forms of subsequent practice in the application of the treaty that can also be used for the purpose of treaty interpretation. In European Communities – ­Customs Classification of Certain Computer Equipment, for example, the wto Appellate Body criticized the Panel for not having considered the decisions of the Harmonized System Committee of the World Customs Organization as a relevant subsequent practice.49 Thus, the wto dispute settlement b­ odies 46 47 48 49

Kasikili/Sedudu Island, op.cit., p. 1.078, par. 55. Ibidem, p. 1.096, par. 80. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, icj Reports 2014, p. 226, par. 46. “A proper interpretation also would have included an examination of the existence and relevance of subsequent practice. We note that the United States referred, before the Panel, to the decisions taken by the Harmonized System Committee of the wco in April 1997 on the classification of certain lan equipment as adp machines. Singapore, a third party in the panel proceedings, also referred to these decisions. The European Communities observed that it had introduced reservations with regard to these decisions. […] However, we consider that in interpreting the tariff concessions in Schedule lxxx, decisions of the wco may be relevant”. See wto Appellate Body Report, EC – Computer Equipment,

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r­ecognize the distinction between “subsequent practice” under Article 31, paragraph 3 (b), and a broader concept of subsequent practice that does not presuppose an agreement between all the parties of the treaty. The International Law Commission similarly recognizes that “decisions, resolutions and other practice by international organizations can be relevant for the interpretation of treaties in their own right”.50 When it considers the role that the UN General Assembly Resolutions may have in explicitly or implicitly referring to pronouncements of expert treaty bodies, it seems to keep two doors open, Article 31 and Article 32, suggesting a case by case analysis.51 In particular, the International Law Commission admits that resolutions adopted without a vote by the General Assembly “would reflect a subsequent agreement under Article 31, paragraph 3 (a) or (b), if the consensus constituted the acceptance by all the parties of the interpretation that is contained in the pronouncement”.52 In this regard, a cautious approach is called for. In the Whaling Judgement, the International Court of Justice argued that Australia and New Zealand overstated the legal significance of the recommendatory resolutions on which they relied. Precisely because such resolutions were adopted without the support of all States parties to the Whaling Convention and, in particular, without the concurrence of Japan, the respondent State. Thus, according to the Court, such instruments could not be regarded as subsequent agreement to an interpretation, nor as subsequent practice establishing an

50

51 52

WT/DS62/AB/R, WT/DS67/AB/R and WT/DS68/AB/R, adopted 22 June 1998, par. 90. See also: I. van Damme, Treaty Interpretation by the wto Appellate Body, Oxford, 2009, p. 342. ilc, Chapter vi Subsequent agreements and subsequent practice in relation to the interpretation of treaties, op.cit., p. 153. The literature has identified some examples of acts of plenary organs of international organisations which would constitute subsequent agreements within the meaning of Art. 31, (3) (a) or (b) Vienna Convention on the Law of ­Treaties. See H.G. Schermers, N.M. Blokker, International Institutional Law, 5th revised edition, Boston-Leiden, 2011, p. 854 (referring to interpretations given by the Assembly of the International Oil Pollution Compensation Fund regarding the constituent instruments of the Fund); M. Cogen, Membership, Associate Membership and Pre-accession A ­ rrangements of cern, eso, esa, and eumetsat, International Organizations Law ­Review, vol. 9, 2012, pp. 157–158 (referring to a unanimously adopted decision of the cern Council, interpreting the admission criteria established in the cern Convention, as a subsequent agreement under Art. 31 (3) (a), Vienna Convention on the Law of Treaties). J.T. Gathii instead affirms that the Doha Declaration on the trips Agreement and Public Health constitutes, in respect to the trips Agreement, an agreement in the terms of Art. 31 (3) (b), Vienna Convention on the Law of Treaties. Cf. J.T. Gathii, The Legal Status of the Doha Declaration on trips and Public Health Under the Vienna Convention on the Law of Treaties, in 15 Harvard Journal of Law & Technology, 2002, p. 310. ilc, ibidem, p. 235. ilc, ibidem, p. 234.

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agreement of the parties regarding the interpretation of the treaty within the meaning of subparagraphs (a) and (b), respectively, of paragraph (3) of Article 31 of the Vienna Convention on the Law of Treaties.53 As already pointed out, when a resolution is adopted by consensus, without formal objection, it does not necessarily imply that an agreement is reached. In S.M. Schwebel’s words, it may be a “false consensus”, in the sense that a sequence of reservations made at the time a resolution is adopted, along with great indifference or opposition, could demonstrate that support, still less opinio iuris, is absent.54 This is particularly true for the Resolution on Remote Sensing Principles analysed herein whose Principles for the most part still lack customary value. For this reason to equate de plano the Resolution to an agreement in the sense of Article 31 (3) (a) or (b) Vienna Convention on the Law of Treaties, among all States participating in the consensus, would seem fictitious. This cautionary note does not, however, exclude that the Resolution on Remote Sensing Principles may fall within the broad sense of “subsequent practice”, and be taken into account under Article 32 Vienna Convention on the Law of Treaties. Both the Outer Space Treaty and the Resolution on Remote Sensing Principles were drafted and adopted by consensus by the same organ, uncopuos, whose limited membership was then overcome by the subsequent adoption of both instruments, again by consensus, by the General Assembly.55 The Resolution contains several references to the Outer Space Treaty, for example it recalls Article vi of the Outer Space Treaty as far as international responsibility for operating remote sensing satellites is concerned. It requires remote sensing activities to be conducted in accordance with international law, and in particular with the Outer Space Treaty.56 Thus, States, by adopting the Resolution, sought to enhance the regulation provided for by the Outer Space Treaty, rather than enacting new rules that were not connected to it. Considering the above elements, it may be concluded that the Resolution can be used as a supplementary tool for the interpretation of the Outer Space Treaty when the interpretation, conducted in compliance with the criteria laid down in Article 31 of the Vienna Convention on the Law of Treaties, leaves the meaning of the Outer Space Treaty norms ambiguous or obscure.57 One may 53 54 55

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ibidem, par. 83. Cf. S.M. Schwebel, Justice in International Law. Selected Writings, op.cit., p. 511. The Outer Space Treaty was adopted with UN General Assembly 2222 (xxi). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 19 December 1966, A/RES/21/2222. 56 Principle iii. 57 Art. 32 (a), Vienna Convention on the Law of Treaties.

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think of the common benefit clause in Article i, or of the aside “to the greatest extent feasible and practicable” contained in Article xi, which will be elaborated on in more detail. Thus, even the Principles of Remote Sensing that are emerging as new norms, but which have still not become accepted as legally binding, may have limited “anticipatory” effects in judicial or arbitral decisionmaking as supporting arguments to interpret the Outer Space Treaty. 4.5

The State’s Right to Privacy

A discussion on a State’s right to “privacy” may appear as a questionable transposition of a private law concept into international law. However, for some time now, the State’s interest not to be observed has been recognized to deserve legal protection. Even Fauchille – the main defender of the “air libre” principle – elaborated from the droit à l’autoconservation (right of self-preservation; Recht auf Selbsterhaltung) the right of States to defend themselves against espionage from the air. To this end, he assumed that States were entitled to forbid foreign airships from flying below 1.500 meters, as from such altitude detailed photos could be taken.58 The principle of sovereignty entitles every State to protect itself against observational activities conducted within its borders which it deems harmful. In exercising this right, a State is free to limit access to, and even totally exclude aliens from its territory, and to regulate the use of photographic and other recording devices inside its territorial domain, provided that such restrictions are not in violation of international agreements it is a Party to.59 A total ban of aerial photography, which is similar to remote sensing, is currently lawful under customary international law which gradually developed following the first years of the Cold War. At the time, air espionage triggered a number of diplomatic incidents like the 1956 Hot-air Balloon affair and the 1960 U-2 incident. In such cases, the concerned States considered aerial espionage as an intrusion into their territory and a breach of both international and 58

59

Cf. P. Fauchille, Régime juridique des aérostats, Rapport et projet de résolutions de M. Paul Fauchille, Premier Rapporteur, Annuaire de l’Institut de droit international, 1902, pp. 34–38. In a subsequent report, in light of the technical development occurred, P. Fauchille took the altitude of 500 metres as the one which he deemed sufficient to protect the security of the subjacent population. Cf. P. Fauchille, Rapport, Régime juridique des aérostats. Projet de convention sur le régime des aérostats en temps de paix, Annuaire de l’Institute de droit international, vol. v, 1906–1911, pp. 895; 900. Cf. R. Martini, I principi di diritto internazionale applicabili al telerilevamento, in F. Francioni, F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993, p. 186.

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domestic law.60 Treaty law provisions – namely Article 27 of the 1919 Paris Convention, and Article 36 of the 1944 Chicago Convention – reiterate the existing customary norm and allow States to regulate, and even restrict or prohibit the use of photographic equipment on board of aircraft flying over their territories. Historically, the sequence of espionage from the air with traditional devices and then reconnaissance from outer space have raised a controversial legal question: whether observation of a State territory from orbit altitudes is legally permissible.61 The current systematic use of sophisticated tools to collect information from outer space leads to question whether other States can carry out remote sensing only with the consent of the sensed State, regardless of the height of the orbit where the satellite is located. A balance between the principle of freedom of remote sensing (which derives from the principle of freedom to explore and use outer space) and the principle of sovereignty of the sensed State, has become one of the most critical issues within uncopuos during the drafting process of the Resolution on Remote Sensing Principles. It has also been a stumbling block in achieving consensus, and its final version does not take a clear position in this respect.62 Delegates at various UN forums and scholars claim that sensing satellites are orbiting beyond the sovereignty zone of the subjacent State, hence the satellite operation is free of restrictions.63 For example, the Australian delegate believed that, as a consequence of the free use of outer space stated in UN General Assembly Resolution 1721/xvi, later codified by the Outer Space Treaty, getting information from outer space was not an illegal practice.64 This

60

In 1960, an American military aircraft U-2 was intercepted in action over Soviet territory and shoot down. The pilot was charged with espionage by the Soviets and returned to the United States years later in exchange for Soviet spies. The right of the Soviet Union to do so was not challenged by the United States, insofar as President Eisenhower accepted the United States’ responsibility for the flight and promised the Soviet Union that no more U-2s would be flown over the Soviet Union. Cf. B. Cheng, The United Nations and Outer Space, Current Legal Problems, 1961, pp. 264–268. 61 After and in connection to the U-2 incident, the reconnaissance satellite program was accelerated in the United States. See the speech of US President Eisenhower quoted in B. Cheng, ibidem, p. 268. 62 Cf. C.A. Colliard, Les principes régissant la télédétection spatiale, afdi, 1986, pp. 697–714. But see infra in this paragraph. 63 See supra par. 3.6. 64 A/AC.105/C.2.SR.11 (18 June 1962), p. 5. In this sense, see also: L. Peyrefitte, The Legal Regime of Remote Sensing of the Earth from Space, op.cit., p. 289; B. Cheng, Studies in International Space Law, op.cit., p. 581.

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argument is not convincing because freedom of exploration and use of outer space does not mean that there must be no limits whatsoever.65 Then, premising that “no State can be prevented from photographing its neighbour’s territory from the top of a mountain”, an author questioned “what difference is there except that the distance is vertical instead of horizontal?”.66 The freedom to collect data via satellite was similarly deduced by analogy from a corresponding norm of customary law which allows to observe and photograph a State territory from a ship on the high sea or from an aircraft overflying the high sea.67 This reasoning is not convincing as long as satellites can provide a continuous and detailed survey of a State territory, regardless of meteorological conditions. Therefore, the use of photographic equipment from the top of a mountain, from the high sea or from an aircraft close to the border of a foreign State cannot compare with remote sensing.68 Although the “real” purposes that the State pursues can be difficult to discover, the lawfulness of remote sensing can be demonstrated when it is carried out for the prevention, mitigation and management of disasters. Even if one were somehow to suppose that satellite observation violates the principle of territorial sovereignty as long as it occurs without the prior consent of the sensed State, in spite of the absence of any specific rule to the contrary, this hypothesis could not be defended when remote sensing activities are carried out for the above-mentioned purposes, simply in virtue of the General Assembly Resolution on Remote Sensing Principles. As already pointed out, even if a General Assembly resolution is not binding, it still has legal effects. The principle of good faith prevents the State that approved its adoption from affirming the wrongfulness of conducts that are consistent with the resolution itself.69 According to the Resolution, remote sensing shall promote the ­protection of 65

It was correctly pointed out, recalling Art. viii Outer Space Treaty, that “turning to Art. viii of the Space Treaty, it does not appear to contain any clue regarding the permissibility of the particular functions performed by Earth resources survey satellites or the subsequent use or dissemination of the data collected. Jurisdiction and control over such satellites does not make such functions necessarily permissible. Ownership of a gun does not imply permissibility in relation to its use in any situation”. S. Gorove, Earth Resources Survey Satellites and the Outer Space Treaty, jsl, 1973, p. 83. 66 Cf. M. Seara Vázquez, Cosmic International Law, Detroit, 1965, p. 170. 67 Cf. C.Q. Christol, Remote Sensing and International Law, op.cit., pp. 392–393; A. Yokaris, Le droit international public de l’espace. Ses rapports avec le droit international public général, rfdae, 1951, p. 227; L. Peyrefitte, op.cit., p. 289 ; see, for a similar reasoning, E. Back Impallomeni, Spazio cosmico e corpi celesti nell’ordinamento internazionale, op.cit., p. 93. 68 Cf. I.A. Vlasic, Remote Sensing of the Earth by Satellites, in N. Jasentuliyana, R.S.K. Lee (Eds.), Manual on Space Law, Oceana, 1979, p. 308. 69 See supra footnote n. 34.

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the Earth’s natural environment against harmful phenomena70 and the protection of mankind from natural disasters.71 It further identifies upon the sensing States specific obligations that include sharing the collected data with the sensed State and transmitting them to the State affected or potentially affected by the disaster. In this manner it once again assumes and confirms the lawfulness of remote sensing activities that are conducted for environmental protection and used in natural disaster prevention and management. International practice dispels all doubts. In fact, it shows that the freedom to collect satellite data, even without the consent of the sensed State, is a norm of customary law.72 Evidence comes from the uniform and consistent practice of sensing States and international organisations such as the European Union, the United Nations, and the European Space Agency.73 For years they have been carrying out remote sensing activities without the consent of the sensed State and without any protests or complaints. In its preamble, the 1978 Moscow Convention on the Transfer and Use of Sensed Data of the Earth from Outer Space had recognized the freedom of remote sensing, contemplating 70 Principle x. 71 Principle xi. 72 Cf. L. Peyrefitte, The Legal Regime of Remote Sensing of the Earth from Space, op.cit., p. 290. Contra A. Moreno: “l’attitude d’Eyeglass et du gouvernement américain en passe d’accéder à la demande d’Israël, alors même qu’il est initiateur de la commercialisation des données haute résolution, semble indiquer que l’existence de la règle coutumière est incertaine […] on serait enclin à penser que le principe de libre collecte des données ne s’applique pas au domaine de la haute résolution essentiellement en raison de l’incertaine existence d’une coutume internationale” [The attitude of Eyeglass and the US government in the process of satisfying Israel’s request, even if it is the initiator of the commercialization of high resolution data, suggests that the existence of a customary rule is uncertain […] one would be inclined to affirm that the principle of free data collection does not apply to the field of high resolution, essentially because of the uncertain existence of an international custom]. A. Moreno, La commercialisation des images satellites. Approche juridique, op.cit., pp. 62–63, 67. The author refers to the restrictions which were imposed by the United States to national remote sensing operators in the collection and dissemination of images related to Israel. In particular, according to the so called Kyl-Bingaman Amendment “a department or agency of the United States may issue a license for the collection or dissemination by a non-federal entity of satellite imagery with respect to Israel only if such imagery is no more detailed or precise than satellite imagery of Israel that is available from commercial sources” (Prohibition on Collection and Release of Detailed Satellite Imagery Relating to Israel. Pub. L. 104–201, div. A, title X, §1064, Sept. 23, 1996, 110 Stat. 2653). But the United States voluntarily satisfied the request of Israel, without being obliged to do so, and that event, because of its exceptional nature, does not undermine the customary value of the freedom to collect data, whatever is their resolution. 73 Cf. G. Lafferranderie, P.H. Tuinder, The role of esa in the Evolution of Space Law, jsl, 1994, p. 101.

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specific restrictions related to the disclosure, but not upstream, in the collection of sensed data.74 Concerning the opinio iuris, it is worth noting that sensed States without space technology, far from opposing remote sensing activities on their territories, “actively establish, operate or plan to construct ground based receiving stations, and acquire and use the data obtained by the existing remote sensing programs for their economic development”.75 Furthermore, if sensing States considered remote sensing as an unlawful activity, they would carry it out secretly or would at least try to hide their own direct involvement. On the contrary, most remote sensing activities are carried out openly, and the results are often disclosed, in compliance with the duty, contemplated by Article xi of the Outer Space Treaty, to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the results of space activities. Military remote sensing is also ordinarily carried out by States without any opposition from the sensed State. It is true that the Soviet Union initially opposed observing the Earth from outer space for intelligence purposes, and considered it unlawful under international law. The 1962 Soviet draft declaration of principles governing space activities contained a specific provision regarding intelligence remote sensing according to which “the use of artificial satellites for the collection of intelligence information in the territory of foreign States is incompatible with the objectives of mankind in its conquest of outer space”.76 However, most States refrained from expressing a view on the 1962 Soviet initiative, while the majority of those that chose to take a stand agreed with the position taken by the United States, namely that observation from outer space is consistent with international law.77 The Soviet Union gradually took a moderate position when it came to realize the benefits to be derived.78 In fact, military remote sensing is one of the most important branches of space activities, and spying through military satellites is commonly considered as a lawful (although unfriendly) activity under international law.79 No foreign 74 75 76 77 78 79

Convention on the Transfer and Use of Sensed Data of the Earth from Outer Space, Moscow, 19 May 1978. V.S. Vereschetin, G.M. Danilenko, Custom as a Source of International Law of Outer Space, op.cit., p. 30. UN Doc. A/AC.105/C.2/3, p. 3, 6 June 1962. Cf. I.A. Vlasic, Remote Sensing of the Earth by Satellites, op.cit., pp. 308–309. Cf. T. Ballarino, S. Busti, op.cit., p. 202; I.I. Kuskuvelis, La légalité coutumière de l’observation spatiale militaire, rfdae, 1990, pp. 305–307. “Les deux principales puissances spatiales procèdent, au moins depuis le début des années 1960, à l’observation de la Terre à l’aide de satellites de surveillance. Bien que l’on ait

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reconnaissance satellite has ever been destroyed by the sensed State.80 Furthermore, arms control and reduction treaties such as the Anti-Ballistic Missile Systems Treaty,81 the Intermediate-Range and Shorter-Range Missiles Treaty,82 the Comprehensive Nuclear Test Ban Treaty,83 the Treaty on Conventional Armed Forces in Europe84 and the New Strategic Arms Reduction Treaty (New start),85 all contain a provision prohibiting interference with “national technical means of verification”. Even though the concept of “national technical

80 81 82 83 84 85

exprimé certains doutes, au cours de la première décennie d’exploration spatiale, sur la légalité de la surveillance par satellite, aucun pays ne semble avoir officiellement protesté contre de telles activités”. [The two major space powers have been observing the Earth, at least since the early 1960s, using surveillance satellites. Although some doubts were expressed during the first decade of space exploration about the legality of satellite surveillance, no country seems to have formally protested against such activities]. Rapport du Secrétaire général: Les incidences de la création d’une Agence internationale de satellites de contrôle, New York, Nations-Unies, 1983, pp. 61–62. The Report then emphasises that “On notera que celles-ci n’entrent pas dans la catégorie des activités interdites au titre de l’Art. 4 du Traité sur l’espace extra-atmosphérique” [It should be noted that these do not fall within the category of prohibited activities under Art. 4 of the Outer Space Treaty]. Ibidem, pp. 61–62. According to T. Ballarino, S. Busti the “freedom of espionage” gradually consolidated de facto, if not in virtue of the Lotus principle of freedom. Cf. T. Ballarino, S. Busti, op.cit., p. 203. M. Lachs admits that “military reconnaissance by the space powers has played an important part over the last decades, especially in the control of armaments and troop movements”. M. Lachs, Views from the Bench: Thoughts on Science, Technology and World Law, op.cit., p. 690. In 1978, France proposed within the General Assembly the establishment of an International Satellite Monitoring Agency (isma), the task of which would, among other things, be to monitor disarmament operations via satellites. UN Doc. A/S-10/AC.1/7. Cf. S. Courteix, Les “satellites bleus” au Service de la Paix et du Désarmament, gyil, 1981, pp. 242–261. See also R. Martini, I principi di diritto internazionale applicabili al telerilevamento, op.cit., p. 181. Cf. G. Catalano Sgrosso, Mise en œuvre des principes des Nations Unies de 1986 sur la télédétection. Le point de vue du juriste, op.cit., p. 199. Treaty between The United States of America and The Union of Soviet Socialist Republics on The Limitation of Anti-Ballistic Missile Systems, 26 May 1972, 944 unts 13 (entered into force 3 October 1972), Art. xii (2) [abm Treaty]. Treaty Between The United States Of America And The Union Of Soviet Socialist ­Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles, 8 December 1987, 1657 unts 2 (entered into force 1 June 1988), Art. xii (2) (a). Comprehensive Nuclear Test Ban Treaty, 24 September 1996, S Treaty Doc 105-28 (1997), 35 ilm 1439, UN Doc A/RES/50/245 (not yet in force), Art. iv (6) [ctbt]. Treaty on Conventional Armed Forces in Europe, 19 November 1990 (entered into force 9 November 1992), Art. xv (2), online: Organization for Co-operation and Security in Europe . Treaty Between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, 8 April 2010 (entered into force on 5 February 2011), Art. x (1) (b), online: US State Department, .

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means of verification” is not defined in those treaties, from the statements delivered b​ y both the United States and the Soviet Union one can unequivocally infer that it includes remote sensing satellites. This indirectly confirms the lawfulness of this activity.86 The Secretary General Report “Les incidences de la création d’une Agence internationale de satellites de contrôle” finally states that “il n’existe pas en droit international général et en particulier dans le droit de l’espace, de dispositions qui impliqueraient […] une interdiction de procéder à des activités de surveillance par satellite” [In general international law, and particularly in space law, there are no provisions that would imply […] a prohibition to carry out satellite surveillance activities].87 Since States are traditionally jealous of their security and military defence, the lawfulness of military remote sensing leads to affirm a fortiori, once again, the lawfulness of civil remote sensing.88 An argument a contrario seems to be decisive. If prior consent for data collection were necessary by the sensed State, it would probably be impossible to have a functioning earth resource satellite in orbit as any State could veto reconnaissance of its territory. Furthermore, there is no way to verify that sensors are switched off when they pass over a country’s territory. Hence, if international law were to require that a system collecting data from satellites be based upon prior consent of all sensed States, performance of the obligation would be totally unverifiable. In conclusion, every State is free to collect data concerning the Earth’s surface, without needing prior consent by the sensed State, which can neither impose restrictions on the geographical area observed, nor limits in terms of 86

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On the American side, see a speech delivered by President Carter in 1978. Cf. Public Papers of the Presidents of the United States: Jimmy Carter: 1978, Book ii, Washington DC, G.P.O., 1979, p. 1682. On the Soviet side, see the speech of General Secretary Chernenko. CD/510, 18.06.1984, p. 3. According to J. Vogler “national technical means of verification” is a euphemism for reconnaissance satellites: see J. Vogler, The Global Commons. A Regime Analysis, 1st ed., Chichester, 1995, p. 105. Rapport du Secrétaire général: Les incidences de la création d’une Agence internationale de satellites de contrôle, op.cit., pp. 61–62. Of course, spying satellites cannot be designed for aggressive endeavours and for allocating nuclear weapons or weapons of mass destruction, since this is specifically prohibited by Article iv of the Outer Space Treaty. In addition, the bulk of satellites are multifunctional because of their structure, their photographic equipment, and the like: they can equally well be deployed for a military purpose as for a non-military purpose. For this reason, the view cannot be shared that a customary norm exists having as its object the freedom to collect high-resolution data through military satellites, while this freedom would not cover civil remote sensing. Contra A. Moreno, La commercialisation des images satellites. Approche juridique, op.cit., p. 67. On the dual-use issue, see: L. Zagato, L’innovazione militare nella competizione economica fra sistemi, op.cit., pp. 129–132.

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resolution or type of sensors.89 When considering the existence of a “right of States to privacy”, according to international law, the crucial question becomes “observing from where?” As a matter of fact, the answer varies based on the ­locus from where the observation is carried out. While a customary international law rule allows a total ban of aerial photographs, the ius excludendi alios cannot extend upwards into outer space, legitimizing in this manner a State from preventing remote sensing above its territory. 4.6

The Right to Disseminate Sensed Data to Third Countries

A key issue that must be considered is the extent of “guarantees” and “safeguards” provided to the sensed State. Firstly, what has to be ascertained is whether or not the sensing State needs the permission of the sensed State to disseminate the data on its territory. The Outer Space Treaty does not include any rules that restrict dissemination of the information obtained from space activities. Article ix of the Outer Space Treaty, at first glance, seems to support the restrictive argument, by stating that “in the exploration and use of outer space […] States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space […] with due regard to the corresponding interests of all other States Parties to the Treaty”. However, this provision clearly addresses the activities of States in outer space and was not meant to cover the dissemination of data collected from satellites. An argument in favour of the freedom to disseminate may be found in Article xi of the Outer Space Treaty, which obliges State Parties to “inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the […] results of such activities [of exploration and use of outer space]”. Once the information is received, “the Secretary General of the United Nations should be prepared to disseminate it immediately and effectively”. Thus, far from restricting the free dissemination of remotely sensed data, Article xi requires that operating States disseminate, to the greatest extent possible, the information gathered by space-borne remote sensors.90 A different interpretation may nonetheless be arrived at, highlighting the open clause “to the greatest extent feasible and practicable” which the duty 89 90

In this sense. see also: R. Jakhu, International Law Governing the Acquisition and Dissemination of Satellite Imagery, op.cit., p. 77. In this sense, see also: D.M. Polter, Remote Sensing and State Sovereignty, jsl, 1976, p. 108.

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to inform is subject to under the terms of Article xi of the Outer Space Treaty. One may argue that when the “rights and interests” of the sensed State are at stake, the sensed State itself could/should establish the extent of feasibility and practicability by imposing restrictions on the dissemination.91 In drafting the Resolution within uncopuos, the States’ concern was not really focused on the lawfulness of the observation activity conducted from space, which few opposed, but rather on the dissemination of sensed data on the part of the sensing States. A strong debate within uncopuos arose over the issue which became particularly acute in 1975, when the United States, through landsat, discovered and made it known worldwide that Pakistan possessed copper deposits. The event triggered diplomatic protests.92 Some countries considered the freedom to disseminate combined with advances in science and technology as a potential threat to their national sovereignty and national interests.93 This is especially true for developing countries, which lately have been asserting their permanent sovereignty over their natural resources. Remote sensing brought their natural resources out in the open vis-a-vis other countries with remote sensing systems.94 Several countries were concerned that resource-related data can enhance knowledge and thus the bargaining power of the sensing States for commercial purposes. Additionally, there was a general fear for national security, that such information would not only be the possession of sensing States, but that it may fall into the hands of hostile, unscrupulous States and non-State actors. Two differing views emerged on the right to disseminate satellite imagery: one pleaded sovereignty over natural resources of the sensed State, and the other stressed sovereignty in the form of freedom of action of the sensing State. 91

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According to M.G. Marcoff, in the case of remote sensing by satellite over a foreign territory, it is the sensed State which is competent to decide whether or not the given activity is consistent with its legally protected interests. Cf. M.G. Marcoff, Disarmament and “Peaceful Purposes” Provisions in the 1967 Outer Space Treaty, jsl, vol. 4, n. 1, 1976, p. 20. S. Gorove similarly argues that “one point which may perhaps be argued is that the admitted purpose of Art. xi is “to promote international cooperation in the peaceful exploration and use of outer space”, and if the dissemination would not promote such purpose because a number of States were objecting to it, then the obligation imposed by Art. xi would not be applicable”. However, the author finally concludes that “this, of course, would in no way imply any restriction on the party to disseminate the information”. S. Gorove, Earth Resources Survey Satellites and the Outer Space Treaty, op.cit., p. 84. Cf. L. Peyrefitte, op.cit., p. 293; A.E. Gotlieb, op.cit., p. 265. Cf. R. Jakhu, ibidem, p. 77; I.A. Vlasic, Remote Sensing of the Earth by Satellites, op.cit., p. 309; M. Williams, Space Law and Remote Sensing Activities, op.cit., pp. 285–286. Concerns relate to what A.E. Gotlieb calls “informational sovereignty”. A.E. Gotlieb, op.cit., p. 257.

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On the one hand, the Soviet delegation, supported by other socialist and developing countries, unequivocally stated that “the interests of States whose natural resources might be subject to remote sensing must be protected [… and] the legal regulation of the problems must not go beyond the framework of existing international law, notably the principle of unconditional respect of State sovereignty, including the right to dispose of natural resources and information about them”.95 Mongolia submitted a proposal to extend the principle of permanent sovereignty so that it encompasses both natural resources, as well as the related information.96 The underlying rationale is that, even if remote sensing activities take place from outer space, the information obtained relates to the Earth’s surface (remote sensing is also often referred to as “Earth observation”) which is subject to State sovereignty. Thus, the principle of sovereignty was assumed to imply not only the right of States to dispose of their natural resources, but also the exclusive right on the related information. This implies the corollary that the information, once collected by the sensing State, can only be disclosed to the sensed State, or even to third countries on condition that there be previous consent (consentement préalable) of the sensed State.97 The Soviet Union, with the support of other communist and developing countries, also proposed to design the regime of sensed data dissemination based on their resolution, inspired by the model of 1978 Moscow Convention on the Transfer and Use of Sensed Data of the Earth from Outer Space.98 With 95 96

Emphasis added. U.N. Doc. A/AC.105/C.2/SR.226-245 (1975). “States participating in remote sensing should respect the principle of full and permanent sovereignty of all States and peoples over their wealth and natural resources as well as their inalienable right to dispose of their natural resources and of information concerning those resources”. Report of the Legal Sub-Committee on the work of its 15th Session (3–28 May 1976), UN Doc. A/AC.105/171, Annex iv, p. 1, 28 May 1976. 97 Art. ix of the Argentina/Brazil draft prescribed that a State obtaining “information relating to the natural resources of another State Party through remote sensing shall neither divulge such information nor transmit or transfer it in any manner to a third State, international organization or private entity, without the express authorization of the party to which the natural resources belong”. The rule proposed in the Franco/Soviet draft pursuant to its acknowledgement of a State’s right to dispose of information concerning its resources was that such information acquired through remote sensing by another State would not be made “public without the clearly expressed consent of the State to which the natural resources belong”. France-ussr Draft Principles, Art. 5 (b). 98 Convention on the Transfer and Use of Sensed Data of the Earth from Outer Space, Moscow, 19 May 1978. In accordance with Articles iv and v of this Convention, the consent of the sensed State was required for the dissemination of information relating to its natural resources or its economic potential and, in any case, for the dissemination of sensed data with a better resolution than fifty metres. These restrictions were de facto unilaterally

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a resolution of fifty meters or higher, the State with remotely sensed data had to obtain the explicit consent of the sensed State for their diffusion. Consent was not required instead for a resolution lower than fifty meters. A differing view was presented by certain countries, the United States in particular, which advocated freedom in the dissemination of satellite imagery, arguing that they were properly interpreting international law, and focusing on the technical characteristics of remote sensing systems. For those States, not consenting to such diffusion would interfere with the development of remote sensing and scientific activities.99 Furthermore, the Outer Space Treaty goals for the benefit and interest of all countries may be hindered. The United States affirmed that disclosing sensing data would contribute to the “preservation of the environment and effective management and control by States of their natural resources”, and such goals would “depend on the sharing of data and its use on a regional and global basis”.100 It also stated that “the natural swath of the satellite sensors commonly cuts across many national boundaries [and as a consequence] in many parts of the world the consent of every country in a region might have to be obtained, through a time-consuming and complicated process which would ensure at the very least that the data released to countries without satellites would be much delayed and probably that it would be prohibited completely”.101 The United States in the working paper it submitted claimed that a sensing State collecting data on the Earth environment should make them available to all on a timely, equitable and nondiscriminatory basis.102 The contrast in the two positions gradually decreased as the States advocating the restrictive regime were unable to undo what proved to be a fait accompli. In fact, after launching its landsat-1 in 1972, the United States made the undertaken by the Soviet Union because, at that time, it was the only State Party with remote sensing capabilities. Several Soviet institutions, however, circumvented the outlined limits by asking France or the United States for sensed data concerning neighbouring regions, so that, as early as in July 1989 and March 1990, the Soviet Union as depositary State, called the attention of the States Parties to the disadvantages stemming from the Convention. Cf. G. Zhukov, Une expérience historique: la convention de Moscou de 1978 sur le transfert de l’utilisation des données de téléobservation de la Terre à partir de l’espace, in Droit, télédétection et environnement, op.cit., pp. 189–194. 99 Without a proper diffusion of research achievements there is no scientific community and, on closer inspection, science itself cannot exist. Cf. F. Marcelli, Il regime internazionale della ricerca scientifica, tecnologica e spaziale, op.cit., pp. 17–18. 100 un Doc. A/AC.105/C.2/L.103, 19 February 1975. 101 Department of State, Digest of United States Practice in International Law, 1975, pp. 478– 479 (1976). 102 UN. Doc.A/AC.105/C.2/L.103.

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data available to all purchasers without the consent of the countries that were being sensed. The important advantages of remote sensing led developing countries to soften their position. They replaced the demand for prior consent with the demand for prior access to sensed data before their dissemination. However, within uncopuos even this priority or preferential access right was rejected.103 The final text of the Resolution does not address the issue, nor does it contain any specific provisions regulating the dissemination of sensed data to third States, with one exception, Principle iv which, at first sight, seems to support the restrictive argument. In accordance with the definition of “remote sensing activities” in Principle i, Principle iv, by repeatedly referring to “remote sensing activities” also applies to “activities in processing, interpreting and disseminating the processed data”, which “shall be conducted on the basis of respect for the principle of full and permanent sovereignty of all States and peoples over their own wealth and natural resources, with due regard to the rights and interests, in accordance with international law, of other States and entities under their jurisdiction. Such activities shall not be conducted in a manner detrimental to the legitimate rights and interests of the sensed State”.104 However, from a combined reading of Principle iv, Principles xii and xiii, it can be deduced that Principle iv neither confers to the sensed State a right of veto to collect and diffuse data of its territory, nor an exclusive right to access that data.105 The former principle contemplates the right of the sensed State to 103 During the negotiations, this claim was progressively turned into the right of the sensed State to have access to sensed data concerning its territory without discrimination and at reasonable cost terms. See infra par. 4.8. 104 Emphasis added. This provision of Principle iv has been considered an application of the principles of good neighbourliness and good faith. Cf. B. Cheng, Studies in International Space Law, op.cit., p. 590. The view was held that Principle iv has not acquired customary value because remote sensing activities are not always conducted so as not to harm the rights and interests of the sensed State. Think, for example, of the remote sensing carried out for agricultural or industrial espionage purposes. In this sense, see J. Monserrat Filho, Commentary Paper on “Remote Sensing Images and GI Information: Policy and Legal Perspectives”, op.cit., p. 32. Nevertheless, it should be noted that remote sensing activities conducted for the aforesaid purposes fall outside the scope of the Resolution, with the consequence that they are not relevant when assessing its correspondence to general international law. The legitimacy of these activities should rather be scrutinised in the light of Art. i Outer Space Treaty. 105 According to F.G. von der Dunk, Principle iv “effectively results in a principled protection of “privacy of States””. However, the author himself then points out that the protection of the privacy of States is merely theoretical due to the lack of a right of prior consent. Cf. F.G. von der Dunk, Outer Space Law Principles and Privacy, in R. Purdy & D. Leung (Eds.), Evidence from Earth Observation Satellites, Leiden, 2012, pp. 254–256.

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access the sensed data on a non-discriminatory basis and on reasonable cost terms, while the latter affirms the duty to enter into consultations with the State that is sensed, upon request of the latter. Apart from these requirements, whose correspondence to general international law needs to be assessed,106 under the terms of the Resolution the sensing State can therefore disseminate sensed data. Secondly, even if broadly interpreted, the principles of territorial sovereignty of States and of permanent sovereignty over natural resources, seem irrelevant in relation to the problem of data dissemination. There is no evidence that supports the application of those principles to the dissemination of sensed data. In international practice, once the information is acquired via satellite, it becomes the property of the sensing State that, at its discretion, is free to use and disseminate it.107 Since natural resources and the related information have a different ontological meaning, they cannot be treated equally, unless expressly provided by the law.108 Neither does the collection and diffusion of data via satellite reduce, restrict or affect the sovereign power of the sensed State over its natural resources. The sovereign State remains entirely free to regulate and to use them. It retains inter alia the power to nationalize the property of foreign companies exploiting its natural resources, acting both at the legislative and executive level, on condition that it be paid a compensation.109 It is worth noting that Mongolia’s proposal, mentioned above, which sought to extend the principle of permanent sovereignty over both natural resources and related information, was finally rejected. Thanks to the freedom of data dissemination, remote sensing has forever eliminated the isolation of the world’s peoples, enhancing transparency

106 See infra par. 4.9. 107 Cf. L. Peyrefitte, Le régime juridique de la télédétection spatiale, rfdae, 1991, n. 2, p. 183. 108 In this sense, see also: I.A. Vlasic: “to claim that the confidentiality of information obtained through remote sensing from space is protected by the principle of sovereignty over natural resources is more than an extravagant interpretation of the cited texts, it amounts to the establishment of a wholly new concept, so far unknown to both international customary law and treaty law”, I.A. Vlasic, Remote Sensing of the Earth by Satellites, op.cit., p. 311. In this sense, see also D.M. Polter, Remote Sensing and State Sovereignty, jsl, 1976, pp. 107–109. Contra R. Martini, who criticises the outlined “restrictive” interpretation of the principle of permanent sovereignty and identifies a functional link between the economic information obtained through remote sensing and the measures triggered by and based upon that information, which are eventually adopted by the sensing State to the detriment of the sensed State. R. Martini, op.cit., p. 196. 109 Cf. L. Peyrefitte, The Legal Regime of Remote Sensing of the Earth from Space, op.cit., p. 290.

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­globally.110 A significant example reveals how sensed images showing recently digging in Bosnia – probably to create mass graves – alarmed the public opinion and prompted nato to intervene. In the Bosnia and Herzegovina v. Serbia and Montenegro case, the International Court of Justice, in considering the satellite photos contained in “The Fall of Srebrenica” report,111 had compelling evidence that supported the stories of survivors about mass executions.112 Another example is the case Georgia v. Russian Federation, where Georgia relied on a satellite imagery to show Russia’s military strength in Abkhazia.113 In case of disasters, the need for transparency, and the advantages of remote sensing, become clear especially when considering that 317 disasters were reported in 2010 without receiving funding or without being recorded by the UN Financial Tracking Service.114 In a number of instances a State initially rejected the offer of assistance or failed to request it, but later changed its mind. Often, this change was due to additional information it received, as in the case of Guatemala after Stan, the tropical storm of 2005,115 or even to international pressure, as in the case of Myanmar after Nargis, the cyclone of 2008. Since the collection and dissemination of sensed data is lawful under international law, regardless of the consent, and even against the will of the sensed State, sensed data plays a crucial role in raising the awareness of the affected State, civil society and the international community about the magnitude of

110 The Remote Sensing Principles were designed “to contribute to a higher degree of transparency so that mankind might improve its understanding of the universe including ­outer space and the Earth”. C.Q. Christol, Remote Sensing in an Era of Global Warming, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007, p. 409. 111 “Fall of Sbrenica” Report, submitted by the UN Secretary-General in November 1999 to the General Assembly, UN doc. A/54/549. 112 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj Reports 2007, Judgement of 26 February 2007, par. 229. 113 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Georgia v. Russian Federation, Written Statement of Georgia on Preliminary Objections, 1 April 2010, par. 4.65. 114 Cf. E. Ferris, D. Petz, A Year of Living Dangerously: A Review of Natural Disasters in 2010, April 2011, p. 22. Sensed images also revealed that Chernobyl was the second nuclear disaster in the Soviet Union because the first one occurred in 1957 and affected the area surrounding the Kyshtym nuclear complex. Cf. G.M. Kramer, The First Amendment Viewed from Space: National Security Versus Freedom of the Press, aasl, 1989, p. 339. 115 ifrc, Legal Issues from the International Response to Tropical Storm Stan in Guatemala (ifrc 2007), pp. 17–18.

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the disaster and the potential humanitarian crisis that may arise.116 Sensed data may induce and support States to resort to retorsion to prompt the unable or unwilling State that was affected by a disaster to abide by the law, thus fulfilling its responsibility to protect its population, even if it entails accepting external humanitarian assistance.117 When an affected State keeps arbitrarily refusing humanitarian assistance, the sensing States may provide remote sensing data to humanitarian organizations that are already working in the country. International practice boasts cases of so-called “remote management programming”, described as an adaptation to insecurity, the practice of withdrawing international staff while transferring increased programming responsibilities to local staff or local partner organisations.118 In the Military and Paramilitary Activities case, the International Court of Justice precisely addressed “indirect” assistance by the provision of relief items from outside the territory of a State, and concluded that such assistance did not amount to intervention in the internal affairs, provided it complied with the principles of humanity, neutrality, impartiality, and non-discrimination. A solution of last resort is to overcome an arbitrary withholding of consent through the provision in loco of humanitarian assistance. As clarified above, this is lawful with the authorization of the Security Council, acting under Chapter vii, or in case the requirements of the state of necessity are met.119 Within this context, the sensed data obtained may be used once again to achieve humanitarian objectives while reducing to the minimum any outside presence on the territory of the affected State, and guaranteeing maximum respect of its territorial sovereignty. The data helps to identify the areas that are most affected and, on this basis, convenient relief corridors can be established, and rapid and concerted relief airdrops organized. In the following paragraphs a different perspective will be adopted to determine if States with remote sensing technologies have specific obligations in the context of disaster prevention and management.

116 Public opinion is often conceived as an indirect guarantee of compliance with international norms, because it may induce States to claim respect to the infringed treaty or customary norms against the State committing a wrongful act. Cf. F. Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale, op.cit., pp. 68–73. 117 Cf. P. Harvey, op.cit., p. 3. 118 Cf. J. Egeland, A. Harmer, A. Stoddard, To Stay and Deliver, Good Practice for Humanitarians in Complex Security Environments, Glossary, 2011, p. xv. 119 See supra paras. 2.8; 2.9; 2.10.

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The Transfer of Remote Sensing Technology

In the context of disaster management, preventive cooperation implies providing every State, especially developing countries, the necessary technology and technical know-how to evaluate risk and detect impending disaster (capacity building). Principle 8 of the Review of the Yokohama Strategy and Plan of Action for a Safer World underscores this very notion by stating that “the international community needs to share the necessary technology for disaster risk reduction as an integral part of technical cooperation”.120 Remote sensing, and the even more demanding interpretation and analysis of the data is still to date a technological and financial challenge for a number of States. However, the exploration and use of outer space has tangible benefits for developing States, in accordance with Article i of the Outer Space Treaty, only on condition that they have access to space technology and technical assistance.121 Why else try to guarantee remotely sensed data to the sensed State if it cannot read and interpret them? Access to the technologies for the exploration and use of outer space was one of the first claims of developing States. For instance, at the first United Nations conference on the Exploration and Use of Outer Space, in Vienna in 1968, Sierra Leone proposed the creation, within the framework of the United Nations, of an information and consultation centre on the application of space technology, which included space technology transfer.122 The Resolution on Remote Sensing Principles incorporates a number of provisions related to capacity building, such as Principle vi, which encourages States to conclude agreements for the establishment and operation of data collecting and storage stations and processing and interpretation facilities, in order to maximize the availability of benefits from remote sensing activities. The wording of the principle, using the “are encouraged” formula, makes it non-compulsory. Principle v has nonetheless a different wording. It requires sensing States to promote closer international cooperation in remote sensing activities. 120 United Nations, World Conference on Disaster Reduction, Review of the Yokohama Strategy and Plan of Action for a Safer World, op.cit., p. 23. Point 5 of the Yokohama Message further specified that “the information, knowledge and some of the technology necessary to reduce the effects of natural disasters can be available in many cases at low cost and should be applied. Appropriate technology and data, with the corresponding training, should be made available to all freely and in a timely manner, particularly to developing countries”. 121 Report of the Legal Sub-Committee on the 26th Session (20 March–7 April 1989), in United Nations Doc. A/AC.105/430, par. 48. 122 UN Doc. A/C.1/PV.1646, pp. 48–52.

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To  this  end, they “shall make available” to other States opportunities to involve them therein “on equitable and mutually acceptable terms”. Principle vii then declares that States participating in remote sensing activities shall make technical assistance available to other interested States “on mutually agreed terms”. The Resolution does not contemplate any requirements with regard to the content of the agreement to be concluded, the method and the procedure to follow for its conclusion, except for reference to equity contemplated in Principle v. For this reason, the conditions under which opportunities for participation and technical assistance are provided should be mutually agreed upon in each single case, under the coordination of the United Nations and its specialized agencies.123 In customary international law there seems to be no rule prescribing to negotiate in good faith, upon request, in order to offer opportunities for participation in remote sensing activities and technical assistance.124 The contrary thesis is clearly in contrast with the factual reality. Sierra Leone’s proposal, which was immediately adopted in Resolution 2453 A (xxiii) of 20 December 1968,125 was later dropped. The centre was never created and the demand to access space technology and technical assistance by developing States to date remains unsatisfied. Even the Outer Space Treaty does not contemplate any rule obliging to make available space technology and technical assistance to other State Parties. It also seems difficult to argue that it might be a corollary from the obligation to cooperate, shaped in the Outer Space Treaty.126 The cooperation principle, recalled several times in the Outer Space Treaty, seems to cover the operational phases of the exploration and use of outer space, rather than the access to 123 Principle viii. 124 Some insights into how the principle of good faith should be understood in the context of international negotiation may be deduced from the arbitral award between Greece and Germany on the Case concerning claims arising out of decisions of the Mixed GraecoGerman Arbitral Tribunal set up under Art. 304 in Part x of the Treaty of Versailles (Between Greece and the Federal Republic of Germany), Decision of 26 January 1972, in riaa xix, pp. 27–64. 125 Resolution 2453 A (xxiii), International Cooperation in the Peaceful Uses of Outer Space, adopted on 20 December 1968. 126 The International Court of Justice drew a different conclusion concerning nuclear disarmament: “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996 (I), p. 267, par. 105 (2) (F). Nevertheless, in case of nuclear disarmament, an obligation of good faith negotiation is specifically contemplated in Art. vi of the Treaty on the Non-Proliferation of Nuclear Weapons.

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space technology and technical assistance, which are upstream conditions in conducting space activities. This interpretation is supported by an assessment of the provisions of the Outer Space Treaty which specify the activities of State Parties guided by the principle of cooperation. These include: scientific investigation (Article i, third paragraph, of the Outer Space Treaty); assistance to astronauts (Article v of the Outer Space Treaty); environmental protection and consultations to prevent harmful interference (Article ix of the Outer Space Treaty), and the dissemination of results of space activities (Article xi of the Outer Space Treaty). Article ix of the Outer Space Treaty reinforces this interpretation foreseeing that “in the exploration and use of outer space, including the Moon and other celestial bodies, State Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance”.127 In the area of access to space technology and technical assistance, in the absence of further specific international agreements, the relationships between States are covered by the general rule of freedom.128 4.8

The Sensed State’s Right to Access Sensed Data

In case of disasters, steps may be taken to reduce the vulnerability of a community, thus the potential harm that may result from such catastrophic events. For this purpose sensed data are important tools, particularly for the construction of urban settlements and environmental protection to reduce pollution, which can have disastrous consequences. The importance of land planning was already declared in the Stockholm Declaration.129 The role of space technologies in this regard is reiterated several times by the Review of the Yokohama Strategy and Plan of Action.130 Geological risk, for example, is closely connected to human activities. Although it cannot be reduced by managing the geological phenomena, which are hardly controllable, it can be contained through a careful, rational use of the territory. 127 Emphasis added. 128 In this sense, see also: L. Migliorino, Cooperazione internazionale e trasferimento della tecnologia spaziale, in F. Francioni, F. Pocar (Eds.), op.cit., p. 203; C. Leben, op.cit., p. 52. 129 “Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment”. Principle 14 of the Stockholm Declaration. 130 United Nations, World Conference on Disaster Reduction, Review of the Yokohama Strategy and Plan of Action for a Safer World, Kobe, Hyogo, 18–22 January 2005, A/CONF.206/L.1, paras. 85, 89, 105.

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As already stated, in drafting of the Resolution on Remote Sensing Principles, developing countries as well as several socialist and developed countries gave up their initial demand for prior consent or for priority access in exchange of the right, in favour of the sensed State, to access the primary and processed data, as soon as they are produced “on a non-discriminatory basis and on reasonable cost terms”.131 In addition to this right, Principle xii contemplates that the sensed State is also entitled to have access to the available analysed information concerning its territory “on the same basis and terms”.132 The access procedure that applies to already analysed information seems more restrictive than the one that applies to primary and processed data being conditioned twice.133 The sensed State has the right to access the primary and processed data as soon as they are produced. It is instead entitled to have access to analysed information, if “available”. Clearly the two concepts are not equivalent. The very term “available”, in comparison to the expression “as soon as […] are produced” seems to allow the sensing State to restrict, based on its discretion, access to analysed information. In fact, availability can depend on additional factors. Furthermore, the second part of Principle xii requires the analysed information to be “in the possession of any State participating in remote sensing activities”. As consequence, according to the wording of this provision, the State that is in possession of analysed information but that has not participated in remote sensing activities, is not obliged to guarantee access. On the contrary, the first part of the principle regulating access to sensed data 131 Principle xii. 132 “As soon as the primary data and the processed data concerning the territory under its jurisdiction are produced, the sensed State shall have access to them on a non-­ discriminatory basis and on reasonable cost terms. The sensed State shall also have access to the available analysed information concerning the territory under its jurisdiction in the possession of any State participating in remote sensing activities on the same basis and terms, taking particularly into account the needs and interests of the developing countries”. Principle xii. 133 The Resolution draws a distinction between primary, processed data and analysed information, according to their level of elaboration. Satellites first collect primary data, which are then “transmitted or delivered to the ground from space by telemetry in the form of electromagnetic signals, by photographic film, magnetic tape or any other means”. In this primary state, the sensed data are raw and must be processed (Principle i (b)). Processed data are those products “resulting from the processing of the primary data, needed to make such data usable” (Principle i (c)). Finally “analysed information” are the product stemming from the combination of interpreted processed data with ancillary information, such as maps, which may be added to prove the results of the satellite image. In sum, as long as primary data have only been treated by making the necessary corrections in order to make them usable, the products resulting from them are processed data, and they become analysed information with the input of data and knowledge from other sources.

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does not specify who is the passive subject of the obligation. It implies that the obligation to allow access to primary and processed data stems from its mere possession. The formula used in Principle xii: “shall have access […] on a non-­ discriminatory basis” extends the principle of non-discrimination of Article i of the Outer Space Treaty to the access to sensed data and analyzed information. Principle xii was nonetheless interpreted in different ways. On one hand, according to a doctrinal thesis, there is no access right as such, but only the right not to be treated discriminatorily when the sensing State is allowing access. According to this view, the sensing State may deny access to the sensed State, as long as the same treatment is applied to other States.134 Thus, if a sensing State does not allow access to any other State, the sensed State cannot claim to be treated discriminatorily if it has no access to the sensed data. However, such interpretation does not seem to be compatible with the wording of the provision where it seems clear that the sensing State has an obligation to allow access (…the sensed State shall have access…) and that access must be non-discriminatory. Furthermore, the criticized interpretation would call into question the delicate balance attained during the travaux préparatoires. The right of access was introduced into the Resolution to counterbalance the missing prior consent requirement. On the other hand, it is not even possible to extend the interpretation to conclude that: “le fait que le texte parle d’accès ‘sans discrimination’ semble impliquer une rupture du lien entre accès aux données et principe de souveraineté permanente, puisque l’obligation de rendre ces données disponibles pèserait sur l’Etat observateur à l’égard de l’Etat non seulement territorial mais également en faveur de tous les autres Etats” [The fact that the text refers to “non-discriminatory” access seems to imply a breach of the link between access to data and principle of permanent sovereignty, since the obligation incumbent upon the sensing State to make such data available would be not only in favour of the territorial State but also of all other States].135 Rather, consistently with the words and the travaux préparatoires of Principle xii, the non-discrimination principle works solely in favour of the sensed State with the aims of ensuring that the sensed State can have unrestricted access to the 134 “There is no unlimited access to data concerning the sensed State, there is only access on a non-discriminatory basis. It follows that the observing State may retain data if it does this equally in relation to any other State”. G. Winter, Access of the Public to Environmental Data from Remote Sensing, in Droit, Télédétection et Environnement, op.cit., p. 254. 135 G. Catalano Sgrosso, Mise en œuvre des principes des Nations Unies de 1986 sur la télédétection. Le point de vue du juriste, op.cit., p. 204.

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data on its territory at the same or better price conditions than those which eventually apply to other States. The most critical issue concerning Principle xii is to establish a legally relevant criteria that enables a comparison to establish if a different treatment would be discriminatory.136 The formula itself “on a non-discriminatory basis” seems to suggest that the non-discrimination principle is not absolute, but rather it is a starting point: a guideline that might be differently implemented in practice, and from which deviations are permitted.137 One could assume that a different treatment would not be discriminatory as long as a lower price is applied to a State which has co-funded the concerned remote sensing activities compared to the price applied to other buyer States, including the sensed ones. This rationale is found in the wording of Principle xii which links the “non-discriminatory basis” of the access to reasonable cost. What still remains to be verified is whether Principle xii, whose content has been already clarified, reflects general international law. 4.9

Access to Sensed Data and Customary Law

During the drafting process of the Principles, the freedom to carry out remote sensing activities was accepted in return for access to information by the sensed State: the two Principles were inseparably linked in the 1986 package deal.138 However, if the freedom to collect and disseminate data without the prior consent of the sensed State has acquired a legal value through a consistent practice and opinio iuris, the same is not necessarily true for its counterbalance. The issue related to the legal value of Principle xii has sparked passionate disputes among scholars between those who maintain that Principle xii, with its mandatory formula (shall have access), recognizes the legal right of the sensed

136 For example, the doctrine wondered whether the unfriendly relations between the sensed State and the sensing State could be a differentiating element. Cf. F.G. von der Dunk, European Satellite Earth Observation: Law, Regulations, Policies, Projects, and Programmes, Creighton Law Review, vol. 42 n. 3, 2009, p. 421. 137 Cf. F.G. von der Dunk, Non-Discriminatory Data Dissemination in Practice, in R. Harris (Ed.), Earth Observation Data Policy and Europe, op.cit., p. 42. 138 Cf. S. Marchisio, Comment on the Discussion Paper on Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery Presented by Mr. K. Sridhara Murthi, Proceedings of the Space Law Conference 2006 Asian Cooperation in Space ­Activities. A Common Approach to Legal Matters, Bangkok, 2006, p. 113.

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State to have access to sensed data on its territory,139 ­corresponding as such to customary law,140 and others who deny the binding value of the principle. In referring to the preparatory work of the Resolution, some authors noticed that, even in one of the later reports of the Legal Sub-Committee Working Group on Remote Sensing, there was no agreement on the basis of a right to access, the type of data involved, and the timing of accessing the data.141 For many States, the final formulation of the principle was not satisfactory, thus “it would be difficult to support an argument that principle xii is a legal obligation agreed to by all States”.142 However, if at the time of its adoption a principle is not supported by general and consistent opinio iuris, nothing can keep it from becoming a customary norm at a later date. International practice is not always clear. Although the basic principles of openness and non-discriminatory access are formally stated both in data policies of international organizations and in national space legislation, the scope of their application is, to a great extent, restricted in their implementation. According to esa’s data policy “data provided by the ers, Envisat and Earth Explorer missions shall be available in an open and non-discriminatory way, and distribution of the data shall be consistent with United Nations Resolution A/RES/41/65 dated 3 December 1986 on Principles relating to Remote Sensing of the Earth from Space”.143 However, a distinction is then drawn between a “free dataset” and datasets which are restrained because of “technical and

139 Cf. R. Jakhu, International Law Governing the Acquisition and Dissemination of Satellite Imagery, op.cit., p. 87. 140 The Principles of the Resolution “which can now be considered as being part of customary international space law, provide for a balance between the freedom of observation for the sensing States and the right of having access to these data by the observed State”. P. Gaudrat, P.H. Tuinder, The Legal Status of Remote Sensing Data: Issues of Access and Distribution, op.cit., p. 353; “the principle of non-discriminatory access is singled out as the “hardest” part of remote sensing soft law”. J.I. Gabrynowicz, The UN Principles Relating to Remote Sensing of the Earth from Outer Space and Soft Law, in I. Marboe, Soft Law in Outer Space, The Function of Non-binding Norms in International Space Law, Vienna, 2012, pp. 183, 189–190. 141 “The Working Group failed to agree, inter alia, on whether access to data should be recognised as a right and whether the data should be given to the sensed State on a continuous and priority basis. Lack of consensus on this question is reflected in the agreed text of Principle xii, where most of the key words appear in brackets”. I.A. Vlasic, Remote sensing of the Earth by satellites, op.cit., p. 329. 142 R.J. Lee, S.R. Freeland, The Crystallisation of General Assembly Space Declarations into Customary International Law, Proceedings of the 46th Colloquium on the Law of Outer Space, Bremen, 2003, p. 128. 143 esa Data Policy for ers, Envisat and Earth Explorer missions, October 2012.

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financial constraints”, while no peculiar treatment is recognized in favour of the sensed State. One of the main objections does not spring from the notion of access, but from practical and legal difficulties in ensuring it. For example when the ­analysis of the data is subject to proprietary rights. The US data policy for landsat-7 guarantees that data “are available to all users”. However, since the private sector is involved in value-adding, the norm only refers to “unenhanced data”144 to balance public interest in diffusing information with the commercial interests of private remote sensing operators. According to US legislation, restrictions to data dissemination can be imposed upon national private remote sensing operators, on grounds of national security, foreign policy, and based on its international obligations. Both American remote sensing operators and “any other private remote sensing space system operator having substantial connections with the United States or deriving substantial benefits from the United States” shall apply these limits.145 A similar restrictive approach is followed by French and German space legislation.146 144 Sec. 5615 (Data policy for Landsat 7), Land Remote Sensing Policy Act. 145 Sec. 960.2 (Scope) noaa Regulations, 15 cfr Part 960 Licensing of Private Land RemoteSensing Space Systems; Final Rule. 146 According to Art. 24 of the Loi n° 2008-518 du 3 juin 2008 relative aux opérations spatiales, “l’autorité administrative compétente s’assure que l’activité des exploitants primaires de données d’origine spatiale ne porte pas atteinte aux intérêts fondamentaux de la Nation, notamment à la défense nationale, à la politique extérieure et aux engagements internationaux de la France. A ce titre, elle peut, à tout moment, prescrire les mesures de restriction à l’activité des exploitants primaires de données d’origine spatiale nécessaires à la sauvegarde de ces interest” [The competent administrative authority shall ensure that the activity of primary operators of space-derived data does not affect the fundamental interests of the Nation, in particular national defence, foreign policy and France’s international commitments. As such, it may, at any time, prescribe the necessary measures to restrict the activity of primary operators of space-derived data in order to safeguard these interests]. In Germany, the restrictions may be adopted on the basis of “die wesentlichen Sicherheitsinteressen der Bundesrepublik Deutschland, das friedliche Zusammenleben der Völker oder die auswärtigen Beziehungen der Bundesrepublik Deutschland” [the essential security interests of the Federal Republic of Germany, the peaceful coexistence of peoples or the foreign relations of the Federal Republic of Germany]. Art. 17 of the Gesetz zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten, BGBl 2007 I, Seiten 2590 ff. Cf. R. Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, jsl, vol. 32, 2006, p. 79; P.B. Larsen, Limited Right of Access to Remote Sensing Data for the Prevention and Mitigation of Disasters, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007, pp. 711–712, 718; F. Tronchetti, Legal Aspects of Satellite Remote Sensing, in F.G. von Der Dunk, F. Tronchetti (Eds.), Handbook of Space Law, Cheltenham-Northampton, 2015, p. 526.

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International treaties also foresee possible restrictions in accessing sensed data. The 2003 Agreement concluded between eumetsat and the United States on the distribution of meteorological data produced by the EuropeanAmerican Integrated Satellite System, for example, contemplates that the access to “critical environmental data” can be denied to an enemy during a crisis or war, yet ensures the use of such data by the United States and non-adversaries.147 In practice, the sensing State determines both the restrictions and the potential addressees. This increasingly unequivocal trend seems to contradict, at its roots, the existence of a general right to access.148 According to the Resolution, any restriction to data collection and diffusion may eventually only be based on Principle iv, whenever such restriction is considered necessary to protect the “legitimate rights and interests” of the sensed State. Similar protection is not contemplated in favour of the sensing State. The acknowledgement of a right to access which may be restricted ad libitum by the sensing State r­ elying

147 See Art. 7 (5) (Data policy) of the Agreement between the United States and eumetsat on Joint Transition Activities Regarding Polar-Orbiting Operational Environmental Satellite Systems, Agreement signed in Darmstadt on 4 June 2003; entered into force on 24 June 2003. The concepts of “crisis or war” are extensively interpreted in Annex i as including, inter alia “a peacemaking or peacekeeping operation involving US and Allied personnel and resources”. Annex i, Procedure and Process for Decision Making and Implementation of Data Denial on US Instruments. 148 Contra J.I. Gabrynowicz, according to whom “the principle of non-discriminatory access is singled out as the “hardest” part of remote sensing soft law”. J.I. Gabrynowicz, The UN Principles Relating to Remote Sensing of the Earth from Outer Space and Soft Law, op.cit., pp. 183, 189–190. The author comes to this conclusion noting that both for medium to low-resolution systems and high-resolution systems, there is “a baseline presumption of openness”. Nevertheless, it is very doubtful that a “presumption of openness” exists, in particular taking into account the restrictions increasingly adopted by sensing States to the diffusion of high-resolution data – a tendency admitted by the same author. Furthermore, although a “presumption of openness” existed, it is not possible to write the sign of equality between a “presumption of openness” and a right to non-discriminatory access. Some other authors suggested a pragmatic solution to smooth out the divergence between Principle xii and international practice, maintaining that the risk for security would be removed in most cases and simultaneously respecting the right to access recognised in favour of the sensed State through the simple delay of data supply. Cf. E. WinsSeemann, Das Satellitendatensicherheitsgesetz aus industrieller Sicht – Angemessener Rahmen für die Kommerzielle Nutzung von weltraumgestützten Fernerkundungssystemen?, zlw 1, 2008, p. 59. Nevertheless, according to principle xii, the sensed State shall have access to primary and processed data as soon as they are produced, and to analysed information as soon as it becomes available. Thus, any intentionally delayed access once a request has been issued would in any case be in contradiction with the Resolution.

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on general and generic clauses, is equivalent to the non- ­acknowledgement of any right and is inconsistent with the rationale of Principle xii.149 Furthermore, no agreement exists within uncopuos whether an assumed “duty” to allow access is conditioned to a request by the sensed State.150 As long as this position is adopted, the “right” to non-discriminatory access is de facto deprived of any content, making any disquisitions on its legal value meaningless. Indeed, although Principle ix requires that a State that is carrying out a remote sensing program must inform the Secretary-General of the United Nations and provide the interested countries all relevant information “to the greatest extent feasible and practicable”,151 the sensed State is often not even aware that remote sensing activities are taking place with respect to its territory. In this case, it can neither request access to data whose existence it is unaware of, nor will it be in the position to take adequate countermeasures when it considers that the conduct of the sensing State is unlawful. By and large, such circumstances have prevented a consolidated practice in this field to emerge (diuturnitas).152 149 According to S. Marchisio, such potential restrictions should be regarded as an implementation or recognition of the principle of access to data by sensed States rather than an exception: “restrictions reflecting security concerns cannot be seen as contrary ipso facto to the UN Principles on remote sensing. In fact, every legal system allows limitations to the openness of information for emergency reasons; moreover, as we have seen, the existence of such restrictions does not affect the general recognition and acceptance of the principle of access to data by sensed States as the general rule: on the contrary, it is based on this very assumption”. S. Marchisio, Comment on the Discussion Paper on Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery Presented by Mr. K. Sridhara Murthi, op.cit., p. 116. However, this very assumption that a general principle of access to data by sensed States exists should be demonstrated upstream. Instead of being exceptions to the principle of access, the restrictions adopted by the sensing State prove that sensed data are the property of the sensing State, which remains free to use and disseminate this data at its own discretion. 150 Pakistan: “data should be made available by the sensing State to the sensed State if the latter requests it”. copuos, Verbatim Record, 262nd Mtg., UN Doc. AC. 105/PV.262 (1984), p. 6. 151 According to Principle ix “In accordance with Art. iv of the Convention on Registration of Objects Launched into Outer Space and Art. xi of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, a State carrying out a programme of remote sensing shall inform the Secretary-General of the United Nations. It shall, moreover, make available any other relevant information to the greatest extent feasible and practicable to any other State, particularly any developing country that is affected by the programme, at its request”. 152 R. Martini argues that Principle xii merely has a programmatic character because of the absence of an institutional mechanism capable to assure the compliance thereto. Cf. R. Martini, op.cit., p. 174.

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Reasonable Cost Terms in Practice

Shifting focus to the cost, practice shows that most data policies adopted by States or commercial operators do not provide the sensed States with a preferential regime in acquiring data related to their territories. On the contrary, and consistently with Principle xii, commercialization arguably should not impede the sensed State from accessing and, if Principle xii were binding, States would be even expected to ensure that national private remote sensing entities comply with the Principle along those lines.153 Indeed, Article vi of the Outer Space Treaty requires each State to assure that its national space activities, including those carried out by non-governmental entities, are carried out in conformity with the Outer Space Treaty, and the Outer Space Treaty in its turn requires space activities to be carried out in accordance with international law.154 A perhaps unique example of positive discrimination in favour of developing countries is eumetsat’s data policy which modulates the price of data transmission to national meteorological services of non-Member States into two categories, based on gni per capita. The price will be zero when the buyer is the national meteorological service of a developing non-Member State,155 provided that the purchase is to fulfil the so-called “official duties”, excluding any commercial use.156 Thus, the principle of free access, as implemented in eumetsat’s data policy, is ratione personae broader than Principle xii because the meteorological service of any developing non-Member State can have data for free, even if it is not the sensed State. However, except for eumetsat’s data policy, the general trend seems to upset the balance of interests achieved in the Resolution since the availability and cost of remotely sensed data depend on the mere discretion of the sensing State rather than on the principle of non-discriminatory access.

153 Cf. S. Marchisio, Comment on the Discussion Paper on Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery Presented by Mr. K. Sridhara Murthi, op.cit., p. 114. 154 Art. iii of the Outer Space Treaty. 155 eumetsat fees for official duty use of half-hourly and quarter-hourly meteosat data by nmss of non-Member States (originally adopted as Annex iii of Resolutions EUM/C/98/ Res. iv and EUM/C/99/Res. vi and amended by Resolution EUM/C/80/14/Res. iii), p. 15. 156 “Official Duty: all activities which take place within the organisation of a nms [National Meteorological Service] and external activities of a nms resulting from legal, governmental or intergovernmental requirements relating to defence, civil aviation and the safety of life and property”. Ibidem, p. 8.

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In practice, the sensed State does not enjoy preferential treatment and de facto, the rule that prevailed, due to the technological dominance of the sensing States, is the first part of Article i of the Outer Space Treaty, which establishes that “outer space […] shall be free for exploration and use”, without this freedom being limited or balanced by any rights of the sensed State. Perhaps in the future, a claim of unjust or unjustified enrichment may be brought before an international court, proving that the sensing State used the information obtained from satellites to its economic advantage and no access to data or compensation was recognized to the claimant sensed State. In 1972, a Background Paper by the Secretary General on Remote Sensing already suggested such possible remedy,157 which would enable the sensed State to claim compensation without having to prove any damages.158 This may reconciliate a requirement for compensation payments to the sensed State with the lawfulness of data collection and dissemination. So far however, no cases exist. A possible evolution of international practice towards this direction will depend on a general recognition in international law of remedies for unjust enrichment.159

157 Background Paper by the Secretary General Assessing United Nations Documents and other Pertinent Data Related to the Subject of Remote Sensing of the Earth by Satellites, UN Doc. A/AC.105/C.I.WG.4/CRP.7, 6 December 1972, par. 189. See C.M. Dalfen, The International Legislative Process: Direct Broadcasting and Remote Earth Sensing by Satellite Compared, The Canadian Yearbook of International Law, x, 1972, p. 198. 158 The principle according to which an individual should not, without justifiable reason, enrich himself at the expense of another, had already been formulated in Roman jurisprudence as an equitable safety valve device to cover those cases in which a general action for damages was not available. Cf. A. Burdese, Manuale di diritto privato romano, Torino, 2002, pp. 501–508. 159 Given an infrequent resort in international practice, it is generally excluded that the unjustified enrichment principle may be based on an international custom. The general tendency on the part of the authors who advocate its applicability to international law is towards attributing to it the nature of a general principle of law recognised by civilised nations in accordance with Art. 38 (c) of the Statute of the International Court of Justice. However, the content of the principle varies from one national legal system to another, depending on the variable element of the lack of a justified reason for the enrichment (sine causa). Thus, as to its concrete content, no real guidance can be found in domestic legal systems, and the question as to which situations arising in international law contexts the unjustified enrichment principle applies to remains unanswered by a comparative analysis. For an overview of the relevant arbitral decisions and international practice, see F. Francioni, Compensation for Nationalisation of Foreign Property: the Borderland Between Law and Equity, iclq, 1975, vol. 24, pp. 272–283, and C. Binder, C. Schreuer, Unjust Enrichment, mepil, 2017.

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Provisions and Omissions of the Resolution on Early-Warning of Disaster and Relief

Within the framework of the Resolution, Principles x and xi respectively regulate the transmission of remote sensing data to protect the environment against man-made disasters (rectius harmful phenomena), and prevent and manage natural disasters.160 The wording of both Principles is stringent because they do not contain the clause “to the greatest extent feasible and practicable”, found instead in Principle ix.161 According to Principle x “States participating in remote sensing activities that have identified information in their possession that is capable of averting any phenomenon harmful to the Earth’s natural environment shall disclose such information to States concerned”. The extensive wording used strives to correlatively assure the greatest protection possible to the environment, foreseeing the duty to disclose whenever a harmful phenomenon is foreseen, even if its magnitude is smaller than that of a disaster. The notion “identified information” should consistently be interpreted as covering both processed data and analysed information.162 While Principle x only covers the disclosure of information “capable of averting” harmful phenomena – thus not covering the response phase – the subsequent Principle xi also foresees the transmission of processed data and analysed information after the occurrence of a natural disaster. Principle xi in fact establishes that remote sensing shall promote the protection of mankind from natural disasters and requires the States which “have identified processed data and analysed information in their possession that may be useful to States affected by natural disasters [disaster response], or likely to be affected by ­impending natural disasters [early-warning]” to transmit such data and information to States concerned “as promptly as possible”. Principles x and xi therefore embody an asymmetry that is difficult to explain. 160 For the difference between man-made and natural disasters see supra par. 1.3. 161 See supra footnote n. 151. 162 Contra A. Moreno, who compares Principle x with Principle xi, which instead explicitly refers to “processed data and analysed information” and deduces that the obligation to disclose provided for by Principle x refers to mere indications, thus not to the sensed data. Furthermore, according to the author, “autant dire que la protection de l’environnement au terme de ce texte ne peut résulter que d’une bonne volonté de l’Etat observateur, car rien n’oblige cet Etat à “identifier” quoi que ce soit” [The protection of the environment under the terms of this text can only result from the goodwill of the sensing State, because nothing obliges that State to “identify” anything]. A. Moreno, La commercialisation des images satellites. Approche juridique, op.cit., p. 71.

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Principles x and xi appear unified because there is no mention of conditions, such as non-discrimination or reasonable cost terms, that data transmission should be subject to.163 Other common elements can be identified. Firstly, through the formulas “capable of averting” and “likely to be affected by impending natural disasters”, both principles apply a precautionary approach to data transmission, justified since the data and information coming from satellites are comparable to weather forecasts. Sensed data cannot predict with absolute certainty whether and how a disaster will occur. A precautionary approach, in this context, means that there is no need to have scientific certainty on the occurrence of the harmful phenomenon or natural disaster to trigger an obligation to transmit sensed data and analyzed information to the States likely to be affected.164 Thus, States cannot rely on scientific uncertainty to justify inaction when there is enough evidence to establish the risk of serious harm. Principles x and xi incorporate another common element as they contemplate that States participating in remote sensing activities have the obligation to disclose and transmit information and data, regardless of the lieu of origin 163 Contra Y. Zhao, who examines Principle xii of the Resolution on the assumption that it regulates the price of the data transmitted according to Principle xi. Cf. Y. Zhao, Disaster Management and the Tampere Convention, op.cit., p. 148. It is contrarily submitted that the scope of Principle xii, which regulates the access in favour of the sensed State to the data concerning its territory, is different from the transmission of data contemplated by Principle xi. For this reason, the terms and conditions contemplated by Principle xii cannot be transferred de plano to Principle xi in order to fill its lacuna. 164 “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. Principle xv of the Rio Declaration. P. Birnie, A. Boyle, and C. Redgwell explain the precautionary principle as follows: “the environment should be given the benefit of the doubt”. P. Birnie, A. Boyle, C. Redgwell, op.cit., p. 157. On the precautionary principle, see D. Freestone, The Road from Rio: International Environmental Law after the Earth Summit, Journal of Environmental Law, 1994, pp. 210–216. The precautionary approach is followed by a number of international treaties whose operation is triggered well in advance to the actual occurrence of the disastrous events. For example, the 2000 Agreement between the Government of the Hellenic Republic and the Government of the Russian Federation on Co-operation in the Field of Prevention and Response to Natural and Man-made Disasters includes within its scope of application those emergency situations which “may cause” “human losses”; the 2000 Framework Convention on Civil Defence Assistance defines a disaster as “an exceptional situation in which life, property or the environment may be at risk”; emphasis added. Finally, according to the decision 1313/2013/EU: “‘disaster’ means any situation which has or may have a severe impact on people, the environment, or property, including cultural heritage (emphasis added)”. Art. 4 (1) (Definitions), Decision 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism, OJ L 347, 20.12.2013, pp. 924–947.

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of the harm or of the disaster. On the contrary, the duty to notify established by the majority of international instruments rests solely upon the State within whose jurisdiction or control the emergency or natural disaster occurs.165 In the domain of protection of the environment from harmful phenomena, and mankind from natural disasters, Principles x and xi define a different data accessing regime compared to Principle xii. The former principles contemplate a right to be informed in favour of the “States concerned”, not in favour of the sensed State, as Principle xii does. The sensed State may not be concerned by the impending disaster, and thus not necessarily informed. The other way around may also occur: in addition to the sensed State, other States may also be concerned. Since the concerned State is the only recipient of the information, the Principles cannot be applied in case of potential damage to areas that go beyond national jurisdiction as the high sea or the Antarctic, where there are no “States concerned” to be warned except in case, for example, individual States have oil platforms on the high seas or scientific stations on Antarctica which would arguably justify their being “concerned”. To assure the greatest protection to both human beings and the environment, express provisions that cover areas beyond national jurisdiction should be made, in line with the protective intent of international law which, since the Stockholm Declaration, encompasses such areas. The following paragraph examines the value of Principles x and xi starting from an analysis of the Outer Space Treaty and of the Moon Agreement, which both contain the obligation to notify and provide mutual information. 4.12

Data Transmission for Early-Warning of Disaster and Relief

The Moon Agreement obliges States Parties to “promptly inform the SecretaryGeneral, as well as the public and the international scientific community, of any phenomena they discover in outer space, including the Moon, which could endanger human life or health”.166 The norm can be interpreted in two different ways, depending on the spatial scope of application attributed to it. The aside “in outer space” could refer to the place where the “phenomena” are endangering human life or health, or where the “phenomena” are detected. According to the first interpretation, 165 See supra paras. 1.5; 1.6. 166 Emphasis added. Art. 5 (3), Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature in New York, 18 December 1979; 18 ilm 1434, 1363 unts 3, entered into force 11 July 1984 [hereinafter Moon Agreement].

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the phenomena to notify only are those endangering human life or health in outer space. It implies, for example, that a State shall notify when it is aware of hazardous radioactive-contamination in outer space originating from a space object – even if it belongs to another State – as long as it endangers human life or health in outer space. According to the second interpretation, the norm also encompasses impending phenomena originating in outer space which may endanger human life or health on planet earth, and even impending disasters that originate on Earth. In both cases the condition that has to be met is that the phenomenon must be detected from outer space, regardless of the locus where human life or health are in danger. Under this interpretation, a State Party to the Moon Agreement shall inform the “Secretary-General, as well as the public and the international scientific community”, for example, of its discovery of an asteroid crossing the Earth, or an upcoming hurricane detected through a meteorological satellite. This interpretation seems preferable, particularly when the norm is compared to a similar one contained in the Outer Space Treaty. In fact, Article v, third paragraph, of the Outer Space Treaty obliges States Parties to inform immediately the other States Parties or the UN Secretary-General of any phenomena they discover in outer space which could constitute a danger to the life or health of astronauts.167 Given the explicit reference to astronauts, its scope is clearly limited to the notification of phenomena occurring in outer space. While the general reference to “human life or health”, contained in Article 5 (3) of the Moon Agreement implies that the humans in danger are not necessarily astronauts and that they are not necessarily in outer space. Considering the high number of ratifications received by the Outer Space Treaty compared to the Moon Agreement, Article xi of the Outer Space Treaty plays a crucial role herein since it requires contracting States to inform “the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities”. The term “results” may encompass, at least in certain conditions, sensed data and, more in general, the information obtained through satellites.168 According to an interpretation, since the minimum content as well as the terms and conditions of the transmission are not specified in Article xi of the Outer Space Treaty, the State carrying out space activities is free to identify the “results” it considers feasible and practicable to share. The norm therefore 167 Art. v, third paragraph, Outer Space Treaty. 168 Art. xi has already been recalled for other purposes, supra in par. 4.5.

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contains a duty without any content because it merely requires State Parties to publish such information according to their own discretion.169 According to this view, Article xi reiterates, at a conventional level, a general norm that obliges cooperation when carrying out space activities.170 From these premises one should infer that Article xi of the Outer Space Treaty cannot be considered specific enough to oblige the sensing State to promptly notify potential disasters detected through satellites. This approach, however, is not applied herein. As generally known, an obligation cannot be properly called a legal obligation unless its existence and extent are judicially determinable. In particular, in circumstances where the extent or even the very existence of the obligation can be discretionally determined, this obligation cannot be termed a legal one. And yet, the aside “to the greatest extent feasible and practicable” does not make compliance with Article xi purely discretionary. It does not touch upon the possibility to verify the meaning of the expression “to the greatest extent feasible and practicable” in the particular context, on a case-by-case basis.171 It may be rather difficult to prove that a State has not informed “to the greatest extent feasible and practicable”. But this difficulty does not have to do with the interpretation of the obligation, but with proof of breach.172 The undertaking contained in Article xi of the Outer Space Treaty can be better defined by reference to Principles x and xi of the Resolution. In fact, in virtue of Article 32 of the Vienna Convention on the Law of Treaties, the aside “to the greatest extent feasible and practicable”, may be read in combination with Principles x and xi of the Resolution which unconditionally require transmitting the sensed data that is useful to States affected, or likely to be affected, by disasters.173 One may assume that, when these circumstances are met, sensed data are necessarily within the “extent feasible and practicable”.174 169 Cf. B. Cheng, Studies in International Space Law, op.cit., p. 253. 170 Cf. A. Bianchi, Il regime internazionale delle salvaguardie relative all’uso dell’energia nucleare nelle missioni spaziali, in F. Francioni, F. Pocar (Eds.), Il regime internazionale dello spazio, op.cit., p. 138. 171 Cf. R.A. Mullerson, Sources of International Law: New Tendencies in Soviet Thinking, ajil, 1989, p. 511; M. Virally, International Texts of Legal Import in the Mutual Relations of their Authors and Texts Devoid of Such Import (29 August 1983), online: l’Institut de Droit international , par. 2–3. 172 Cf. K. Widdows, What is an Agreement in International Law, op.cit., p. 139. 173 See supra par. 4.4. 174 I.A. Vlasic underlines that “the text of these Principles breaks no new ground; it requires of States compliance with widely respected standards of international comity already practised within co-operative arrangements under the auspices of the World Meteorological Organization”. I.A. Vlasic, op.cit., p. 326.

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In this manner, despite its non-binding nature, the Resolution contributes in clarifying the scope of rights and obligations expressed in the Outer Space Treaty, developing and giving substance to the common benefit principle. The other way round is also true. As long as the common benefit principle has a binding value – as it has – it further reinforces the obligation to transmit relevant sensed data in case of disaster.175 Finally, the conclusion reached confirms According to S. Marchisio, neither Principle x nor Principle xi can be merely considered as soft law in the light of the contributions which were given to the opinio iuris by the sustainable development-oriented practice of States. Cf. S. Marchisio, Remote Sensing for Sustainable Development in International Law, Outlook on Space Law over the Next 30 Years, op.cit, p. 346. Contra, when assessing the value of the Principles in point, L. Peyrefitte exclusively refers to the passage of Art. i Outer Space Treaty, that “the exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries”. He holds the view that this disposition is not sufficient to elaborate a right to be warned in cases of impending natural disasters because it contains nothing more than a “moral or humanitarian ideal”, using the words of the International Court of Justice in the South West Africa case (South West Africa cases, Second Phase, Judgment of 18 July 1966, icj Reports 1966, p. 6). Cf. L. Peyrefitte, The Legal Regime of Remote Sensing of the Earth from Space, op.cit., p. 293. 175 The travaux préparatoires for the Outer Space Treaty seem to confirm the States’ intention to create Article i, first paragraph, as a legally binding obligation, considering that the Indian proposal to include the provision into the Outer Space Treaty preamble was finally rejected by the uncopuos Legal Subcommittee. See the proposal of Mr Krishna Rao of India, Summary Report of the 63rd meeting, 5th Session of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, UN Doc. A/AC.105/C.2/SR.63, p. 7 (1966). The International Court of Justice, in a passage of the Fisheries Jurisdiction judgement, stated that “in the case of a treaty which is in part executed and in part executory, in which one of the parties has already benefited from the executed provisions of the treaty, it would be particularly inadmissible to allow that party to put an end to obligations which were accepted under the treaty by way of quid pro quo for the provisions which the other party has already executed”. Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland) Jurisdiction of the Court, Judgment of 2 February 1973, icj Reports 1973, p. 18, par. 34. This point is particularly important since freedom to explore and use outer space was contemplated in Article i of the Outer Space Treaty on condition that it is for the exclusive benefit and interest of all countries (M.G. Marcoff, Disarmament and “Peaceful Purposes” Provisions in the 1967 Outer Space Treaty, op.cit., p. 21). Spacefaring nations, for decades, have been taking advantage of the compliance of their counterparts (the non-spacefaring nations), enjoying full freedom of using and exploring outer space, without ever being contested. Therefore, they cannot now do away with the obligation to carry out space activities for the general benefit of all countries, being the quid pro quo of that freedom. We do not follow the extreme thesis of U. Leanza. According to this author, the common benefit principle cannot have concrete implications, given that no world organisation empowered to realise in practice the benefit for the whole international c­ommunity exists. Cf. U. Leanza, Prefazione, in F. Pocar, G. Venturini, M. Pedrazzi (Eds.), Gli accordi bilaterali dell’Italia in materia spaziale, Milano, 1999, p. xvii. In this sense also L. ­Migliorino,

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and specifies the duty, under general international law, to notify impending disasters.176 On the other hand, the rule resulting from the combination of Article xi of the Outer Space Treaty with Principles x and xi has a clear limit: the data and information to transmit are those already in the possession of the sensing States, as can be deducted from Principles x and xi (which both use the expression “in their possession”), and from the term “results” used in Article xi of the Outer Space Treaty. This means that sensing States have neither an obligation to make their space resources available to the affected State, nor do they have an obligation to operate their satellites to obtain ex novo data which may be useful to the affected State. The aforesaid is supported by consistent international practice and opinio iuris. In the initial aftermath of the Chernobyl nuclear disaster (1986), although radioactive clouds, following the explosion, were threatening the whole of Europe, the Soviet Union gave no warnings to the international community. Western countries however, quickly discovered the accident mainly through landsat and spot satellites, which revealed that the explosion had affected two reactors, not only one, as detected at its early stage. An alert was consequently issued. A considerable number of declarations, delivered both by space faring and non-spacefaring nations, and resolutions of international organizations, underline that disaster information should be made available in an unrestricted timely manner to all States concerned.177 Cooperazione internazionale e trasferimento della tecnologia spaziale, in F. Francioni, F. Pocar (Eds.), op.cit., p. 200. 176 See supra paras. 1.5; 1.6. 177 unga Resolution 46/182 underlines that early-warning information should be made available in an unrestricted and timely manner to all States concerned. Cf. unga Resolution 46/182, Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, adopted on 19 December 1991, par. 20. The Resolution on Principles of Satellite Data Provision in Support of Operational Environmental Use for the Public Benefit, adopted by the Committee on Earth Observation Satellites (ceos) in 1994, declares in its preamble “that Earth observation data, especially satellite data, are essential […] in fulfilling certain mandates, such as the protection and preservation of human life, the Earth, and property from the effects of natural disasters, severe weather, and environmental emergencies, and support for improved environmental management”. The Resolution then underlines that “real-time and/or archived data for operational environmental use for the public benefit should be made available on time scales compatible with user requirements and within agency capabilities”. Resolution on Principles of Satellite Data Provision in Support of Operational Environmental Use for the Public Benefit, adopted at the eighth ceos Plenary meeting held in Berlin on 26–28 September 1994, ceos Yearbook, 1995. “Disaster reduction is but one of the global concerns that demand greater

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The data policies of international organizations whose mandate is to share space-based information, such as the World Meteorological Organization (wmo) and the European Organisation for the Exploitation of Meteorological Satellites (eumetsat), assure a special, preferential procedure to processed data and analysed information on disaster early-warning and relief. According to Resolution 40, wmo Members “shall provide on a free and unrestricted basis essential data and products which are necessary for the provision of services in support of the protection of life and property and the well-being of all nations, particularly those basic data and products, as, at a minimum, described in Annex 1 to this resolution, required to describe and forecast accurately weather and climate, and support wmo Programmes”.178 Data on disaster prevention and management clearly fall within this category of data and, being essential, they must be distributed on a free, unrestricted basis, as confirmed by Annex 1 of Resolution 40. Among “essential data” it includes “severe weather warnings and advisories for the protection of life and property targeted upon end-users” and “data and products necessary for operations regarding severe weather warnings and tropical cyclone warnings”.179 eumetsat data and products are available without restrictions in case of disasters, even for non-member States.180 sharing of data from activities under the geoss umbrella”. geoss Data Sharing Action Plan Document 7 (Rev. 2), Annex 2, p. 2. Finally, according to Art. vii (Early Warning) of Resolution 4, adopted by the Red Cross and Red Crescent “in order to minimize transboundary impacts and maximize the effectiveness of any international assistance that might be required, all States should have procedures in place to facilitate the expeditious sharing of information about disasters, including emerging hazards that are likely to cause disasters, with other States and assisting humanitarian organizations as appropriate, including the United Nations Emergency Relief Coordinator”. Resolution 4, Adoption of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007. Resolution 4 is non-binding, as specified by its Art. 1 (1). 178 Emphasis added. wmo Resolution 40, World Meteorological Congress (CG xii, 12th Meeting), wmo Policy and Practice for the Exchange of Meteorological and Related Data and Products Including Guidelines on Relationships in Commercial Meteorological Activities, 26 October 1995. 179 Annex i to Resolution 40 (Cg-xii), Data and products to be exchanged without charge and with no conditions on use. Points 7, 8. 180 “eumetsat shall make its Three-hourly and Six-hourly Meteosat Data, the Meteosat Derived Products and the data offered through its Meteosat Internet Service available to all users world-wide on a free and unrestricted basis as “Essential” Data and Products in accordance with wmo Resolution 40 (Cg-xii)”. Implementing Rules for Meteosat Data and ­Products (originally adopted as Annex i of Resolutions eum/C/98/Res. iv and eum/C/99/ Res. vi, amended in Annex i of Resolution eum/C/70/10/Res. iii and eum/C/80/14/Res. iii),

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Finally, it is worth noting that, within the 2010 Session of the uncopuos Technical Sub-committee, Burkina Faso complained that it did not receive any sensed data when affected by floods, despite its request to activate the International Charter on Space and Major Disasters.181 Assuming that a duty to transmit sensed data did not exist in such circumstances, a complaint would be difficult to explain because the International Charter is not binding182 and the Parties should merely “use their best endeavours” to supply sensed data and associated information and services, gathered by their space facilities.183 Although Principles x and xi of the Resolution do not contain any specifications regarding the cost of sensed data and analysed information on disaster prevention and management, international practice shows that data transmission is generally free or, at any rate, its pricing is no higher than its reproduction and distribution cost.184 Finally, if their availability were to depend on

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point 4. “For limited periods, to support the monitoring of disasters or emergencies and in accordance with relevant UN resolutions, the full set of Meteosat Data will be made available Without Charge”; “For Official Duty use by nmss of non-Member States subject to tropical cyclones, the full set of Meteosat Data will be made available Without Charge”. Conditions Of Access To Non-Essential meteosat Data By nmss Of Non-Member States, points 4, 5. “Free access will continue to be provided temporarily to monitor disasters or emergencies, as foreseen in the general Data Policy”. Special iodc Fee Structure (agreed at 62nd eumetsat Council meeting on 26–27 June 2007, amended by Resolution eum/C/67/09/Res. v, Resolution eum/C/70/10/Res. iii and by Resolution eum/C/77/12/ Res. ii), point 5. “Le Burkina Faso a connu des inondations dont la plus importante a touché Ouagadougou le 1er septembre 2009. Pour permettre d’en faire l’évaluation, notre pays a activé la charte pour l’acquisition d’images satellite que nous n’avons malheureusement pas reçues” [Burkina Faso experienced floods, the most severe of which occurred in Ouagadougou on 1 September 2009. In order to assess it, our country has requested the activation of the charter in order to obtain satellite images, which unfortunately we have not received]. Declaration du Burkina Faso au 47ème sous-comite scientifique et technique – copuos du 8 au 19 fevrier 2010, Vienne. Art. 3 (1), International Charter on Space and Major Disasters. Art. 4 (5), International Charter on Space and Major Disasters. The Second Declaration of Tunis “notes that the tsunami of 26 December 2004 has prompted reflection on data pricing policy and a shift towards no charge, regarding which continuity would be desirable in the case of major disasters”. Second Declaration of Tunis adopted on 27–28 April 2005. Under the wmo and eumetsat data policy, “essential data” are made available without charge, where “without charge” means “at no more than the cost of reproduction and delivery, without charge for the data and products themselves”. Annex iv to Resolution 40 (Cg-xii) Definitions of terms in the practice and guidelines; eumetsat Data Policy, 2015, p. 9. According to the Global Earth Observation System of Systems (geoss) data policy “the pricing of geoss data, metadata and products should be based on the premise that

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market logic, their price would prevent developing countries from benefitting therefrom, in contrast with the principle of common benefit contained in ­Article i of the Outer Space Treaty.185 the data and information within geoss is a public good for public-interest use in the nine societal benefit areas”. The first societal benefit area is “disasters: reducing loss of life and property from natural and human-induced disasters”. It is further specified that “geo, together with its geoss data providers, should work to set standards for the full and open exchange of data based on this premise, with the only allowable cost for data being either that of reproduction and distribution, or the marginal cost of fulfilling the user request”. geoss Data Sharing Action Plan Document 7 (Rev. 2), as accepted at geo-vii, 3–4 November 2010, pp. 6–7. Within the systems created by the International Charter on Space and Major Disasters and by the Sentinel Asia Program, the data useful for disaster prevention and management are shared free of charge. See more on https://www.disasterscharter.org/web/guest/ about-the-charter and https://sentinel.tksc.jaxa.jp/sentinel2/MB_HTML/About/About. htm; http://www.jaxa.jp/Art./special/sentinel_asia/index_e.html. The International Flood Network, through the Global Flood Alert System, provides free information on precipitation based on satellite data to global subscribers. See the Report prepared at the request of the Secretary-General of the United Nations, Global Survey of Early Warning Systems, United Nations, 2006, p. 10, and further: unga, Environment and Sustainable Development: International Decade for Natural Disaster Reduction. Early-Warning Capacities of the United Nations System with Regard to Natural Disasters. Report of the Secretary-General, 9 October 1995, A/50/526, p. 20. Report of the Committee on the Peaceful Uses of Outer Space, Fifty-fourth session (1–10 June 2011). General Assembly Official Records Sixty-sixth Session Supplement n. 20, New York, 2011, p. 17, par. 115. The Model Facility Agreement, which is submitted to the Member States by the ­c tbto, establishes that “all communications of data to the Commission shall be free of fees and any other charges of the Government or any other competent authority in X, except for charges directly related to the cost of providing a service, which shall not exceed the lowest rates accorded to governmental agencies in X”. (Art. 14 (iv) of the Model Facility Agreement). The Model Tsunami Warning Agreement, under which the ctbto provides relevant data to the signatory State Party, is even more categorical: “the data is provided on a no exchange of funds basis” (Standard Agreement on the Provision of Data for Tsunami Warning Purposes, 19 October 2007, ctbt/pts/inf.906/Rev.1). 185 According to S. Marchisio “remote sensing environmental information must be free in principle for all users, though at reasonable cost, because of the public aspect of this kind of data, as it is confirmed at the European regional level by the EC Directive 90313 on access to environmental information”. S. Marchisio, Remote Sensing for Sustainable Development in International Law, op.cit., p. 348. The thesis is now reconfirmed at European regional level by Directive 2003/4/EC. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/eec, OJ L 41, 14.2.2003, pp. 26–32. G. Catalano Sgrosso similarly argues that “no mention is made [in Principle xi] of the conditions for disclosing such information; however, because both cases involve information concerning environmental protection and therefore relevant to a public heritage it would be logical for the information to be disclosed free of cost”. G. Catalano Sgrosso,

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If a sensing State offers sensed data to prevent an impending disaster or to manage a disaster that has already occurred, arguably the concerned State has the obligation to accept and use them, whenever its own remote sensing resources are insufficient to protect the people under its jurisdiction. This obligation can be conceived respectively as part of a more general duty to diligently prevent a disaster, and not arbitrarily refuse humanitarian assistance. In fact, as far as disaster prevention is concerned, a State that refuses to act on the necessary sensed data can hardly claim to have acted within diligence requisites, should a disaster occur.186 The same goes for disaster response. In the first part of this work, the obligations to protect human rights were shown to include an obligation to accept assistance in a situation of disaster as long as States are unable, with their own capacity, to fulfil the human rights obligations that rest upon them. This disputably includes a duty to accept sensed data from the outside, whenever the State’s own space resources are insufficient to protect the people under its jurisdiction.187 For instance, when a State has difficulty in managing vast areas affected by a disaster within its territory and, despite this, refuses the sensed data. In such a case, as long as, through the sensed data, the emergency may be coped with, and the most affected areas promptly identified, the State cannot use the size of the area affected, or the difficulty to manage the disaster as an argument to deny the application of human rights standards. 4.13

Verification of Remote Sensing Principles

While the Remote Sensing Principles were designed to balance the conflicting interests of sensing and sensed States, namely the freedom to collect and disseminate sensed data with the right of the sensed State to have access to them, de facto the former freedom prevailed, supported by the technological dominance of sensing States. The rule contained in Principle ix, according to which a sensing State shall inform the Secretary-General and the affected State about the program of remote sensing conducted on its territory, is still not yet customary law. This, coupled with the difficulty States have to identify remote sensing activities over their territory, generates a ripple effect, affecting the entire Resolution. ­ emote Sensing, Proceedings of 43rd Colloquium on the Law of Outer Space, Rio de JaR neiro, 2000, p. 448. 186 See supra par. 1.5. 187 See supra par. 2.6.

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In  fact, transparency is an essential pre-requisite for the effectiveness of all ­Remote Sensing Principles, and to yield customary norms in the field of ­remote sensing.188 The above demonstrated obligation to transmit useful data for disaster early-warning and relief constitutes a paradigmatic example.189 As long as the State hit by a disaster is neither entitled to be informed about remote sensing programs concerning its territory carried out by other States, nor does it have access to the data collected – because of the lack of customary value of Principle xii – it may not be aware that a space mission on its territory was in progress. Nor can it prove that the sensing State actually possessed sensed data and information that could have been useful to early-warning and disaster relief, and that it was aware of their potential. The aforesaid, at first sight, may appear to be contradicted by Article iii of the Registration Convention which established a UN Register of space objects, kept by the Secretary General. The State of registry must provide the SecretaryGeneral “as soon as practicable” four orbital space object parameters (nodal period, inclination, apogee, perigee). Access to this information is full and open.190 The four basic orbital elements become however obsolete after every manoeuvre and, even in its absence, may be affected to gradual changes due to natural forces.191 They are therefore not sufficient to determine the actual position and motion of an object in space. But even if the satellite’s geographic position were identified, and the possession of raw data proved, it would still not be sufficient to infer that the 188 Cf. R. Martini, op.cit., p. 171. 189 A further example is Principle xiii, which requires sensing States to enter into consultation with the sensed States upon request of the latter in order to make available opportunities for participation. In order to be effective and operative, this Principle logically implies the prior notification of the sensed State of the remote sensing activities affecting its territory. 190 Art. iii and iv (1), Convention on Registration of Objects Launched into Outer Space, opened for signature in New York, 14 January 1975; 28 ust 695, tias 8480, 1023 unts 15, entered into force 15 September 1976. 191 A strict obligation to periodically update the orbital parameters would be necessary in order to enable the identification of the position of space objects. However, the Registration Convention merely obliges to provide additional information “from time to time”. Furthermore, the phrase “as soon as practicable”, used in Art. iv, does not prescribe a specific maximum permissible delay. It was stated in this regard that “the long delays of publishing launching announcements follow rather the principle as soon as convenient instead of as soon as practicable”. L. Perek, The 1976 Registration Convention, Proceedings of the 41st Colloquium on the Law of Outer Space, Melbourne, 1998, pp. 376–377. The author further noted that “the percentage of unregistered objects was very low right after the Convention had entered into force, but it had been increasing ever since”.

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s­ ensing State is “aware” that these data “may be useful” to the States affected, or likely to be affected, by disasters.192 Raw data alone cannot serve to deduce the occurrence of an impending disaster. They must always be adjusted and interpreted thoroughly, using proper computer resources. To sum up, although the obligation exists, it is hardly verifiable. It is true that the difficulty to find evidence of breach does not have to do with the interpretation of the obligation. However, the gradually emerging international consensus on the Remote Sensing Principles should go hand in hand with the creation of an effective system of guarantees, which would assure that each State has true control over the remote sensing activities taking place on its territory. This is particularly the case of Principles x and xi. This does not mean that there is a need to re-evaluate and introduce prior consent to data collection and dissemination. But rather, some forms of transparency should be introduced, in particular on the orbital trajectories ­envisaged, resolution power, and sensed-data-receiving centres, which would guarantee a reasonable balance between the benefits of technological progress on one hand, and a certain degree of protection for the sensed State on the other. 4.14 Conclusions Contrary to other branches of space applications, such as meteorology and telecommunications, there is no UN agency on remote sensing. For States to cooperate and properly plan a response strategy in case of disasters requires not only proper planning, but even an institutional framework. Without them, an effective implementation of the remote sensing legal framework ultimately depends on the willingness of the sensing States.193 This may imply that the provision of space technology support and of humanitarian assistance, will come to depend on circumstances such as the skill of the requesting State, the 192 “There can be a failure of forecasting, demonstrated by an inability to understand a hazard or a failure to locate it properly, in time or space. There also may be an ignorance of prevailing conditions of vulnerability determined by physical, social, or economic inadequacies. A third possibility can be a failure to communicate the threat accurately or in sufficient time. Finally, there can be a failure by the recipients of a warning to understand it, to believe it or to take suitable action”. unga, Environment and Sustainable Development: International Decade for Natural Disaster Reduction. Early-Warning Capacities of the United Nations System with Regard to Natural Disasters. Report of the SecretaryGeneral, 9 October 1995, A/50/526, p. 5. 193 Cf. C. Leben, op.cit., pp. 54–55.

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voice of a patron donor State, and the influence of other factors such as the media,194 as seems to be the case nowadays. The less attention a disaster draws, the less assistance it will receive. Out of the 317 disasters reported in 2010, some received no funding, others were not recorded in the UN Financial Tracking Service.195 That same year, the earthquake in Haiti and Pakistani floods accounted for 96.56 percent of all international humanitarian assistance and disaster relief, leaving 3.54 percent for the other 54 major disasters that year.196 At the institutional level limited progress was achieved by establishing ­quasi-institutional frameworks for cooperation in this realm, as the International Charter on Space and Major Disasters. Although it is far from an ­international organization with a legal personality, the Conferences of the Parties have ensured continuity in their efforts. Such cooperation frameworks, however, once again show the insufficient number of global institutions involved in monitoring disasters, particularly the early-warning phase. Despite contemplating disaster prevention within their scope of application, both the ­International Charter on Space and Major Disasters and the unga Resolution establishing a UN platform for space-based information for disaster management,197 have never in fact been activated for early-warning purposes.198 Along such lines, the Russian proposal may be appreciated in striving to establish an international mechanism to alert individual countries and the 194 “Common sense would dictate that the larger the disaster, the greater the media attention and the more generous the response. That was certainly the case with the tsunami. But it is not, unfortunately, a universal rule. Research across a range of disasters reveals that there is no clear link between death tolls and media interest. Rather, Western self-interest gives journalists a stronger steer”. ifrc, 2006, p. 8. 195 Cf. E. Ferris, D. Petz, A Year of Living Dangerously: A Review of Natural Disasters in 2010, op. cit., p. 22. 196 Ibidem, pp. 21–22. 197 Art. 2 of the International Charter on Space and Major Disasters contemplates as a purpose to “supply during periods of crisis, to States or communities whose population, activities or property are exposed to an imminent risk, or are already victims, of natural or technological disasters, data providing a basis for critical information for the anticipation and management of potential crises”, emphasis added. unga Resolution 61/110 similarly recognises the importance of early warning and of a comprehensive approach able to encompass “the full disaster management cycle”. Cf. unga Resolution 61/110, United Nations Platform for space-based information for disaster management and emergency response, adopted on 15 January 2007. 198 And yet, the importance was already underlined in 1995 to designate “an authority or mechanism to provide comprehensive oversight to early warning for natural and similar disasters within the United Nations system”. United Nations. General Assembly, Environment and Sustainable Development: International Decade for Natural Disaster ­Reduction. Early-Warning Capacities of the United Nations System with Regard to Natural Disasters. Report of the Secretary-General, 9 October 1995, A/50/526, p. 19.

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i­ nternational community as a whole to potential natural and man-made disasters and other global threats, including threats from outer space.199 The Russian delegation underscored that “while a number of international initiatives with similar objectives are aimed primarily at providing post-event information for the purpose of mitigating the consequences of disasters, the purpose of igmass [International Global Monitoring Aerospace System] is to ensure capacity to provide reliable information based on satellite data as a means of warning of potentially dangerous events so that preventive measures can be taken, which, in the opinion of Russian experts, is a factor of vital importance in implementing the project”.200 The feature that is most innovative is the emphasis on early warning along with the post-disaster phase. But we are still a long way from reaching what is conceptually easy to conceive: that is, global disaster management based on systematically recruited information coming from an international satellite network.201 199 Project to create the International Global Monitoring Aerospace System as a forwardlooking new initiative in predicting and mitigating the consequences of natural and manmade disasters. Working paper submitted by the Russian Federation, A/AC.105/C.1/L.323. For a reference to this project see Report of the Committee on the Peaceful Uses of Outer Space, Fifty-fifth session (6–15 June 2012). General Assembly Official Records Sixty-­ seventh Session Supplement n. 20. 200 Ibidem, p. 18, point 121. 201 Since the beginning of the space age, several authors hoped that jurisdiction over activities in space would be recognised to be vested in the United Nations. Cf. C.W. Jenks, International Law and Activities in Space, op.cit., pp. 113–114.

Chapter 5

Telecommunications and Disaster Management 5.1 Introduction The global management of the use of radio frequencies is the task of the International Telecommunication Union (itu), an international organisation that has emerged from the International Telegraph Union of 1865 and the oldest specialised agency under Article 57 of the UN Charter.1 In legal terms, its basic instruments, the Constitution and the Convention, are a sole treaty, because they cannot be ratified separately.2 Given the quasi-universal membership status of the itu3 – perhaps the closest one can get to a global plebiscite –, the norms contained therein can, in most cases, reasonably be assumed to mirror general international law.4 They are further complemented by the Administrative Regulations, which, having the legal nature of a treaty, are binding for Member States.5 The traditional notion of information and communication, primarily shaped by reference to the press and to terrestrial broadcasting, has been challenged by rapid changes in technology with a global impact. Innovations such as the use of satellites for telecommunications, and the merging of computer and communications systems into the more unified concept of “telematics”, have brought great advances in the capacity for circulating, storing, and producing information. With the invention and development of new means of communication or the adaptation of old means to new communication services, the powers of the itu have been consistently and periodically extended by revision of the itu instruments by the World Radio Communication ­Conferences 1 For a historical overview, see G. Venturini, Servizi di telecomunicazione e concorrenza nel diritto internazionale e comunitario, op.cit., pp. 15–30. 2 See Art. 52 (1) (Ratification, acceptance or approval), itu Constitution. 3 itu members include all UN members except Palau, plus Vatican City. 4 Cf. S. Marchisio, The itu Regulatory System: A Self-Contained Regime or a Part of International Law?, 74 in Note de l’IFRI Governing the Geostationary Orbit – Orbital Slots and Spectrum Use in an Era of Interference (January 2014), p. 75. 5 Art. 4 (3) (Instruments of the Union), itu Constitution. The Administrative Regulations are divided into two categories: the International Telecommunication Regulations and the Radio Regulations. The former deal with standards and procedures in international telecommunications generally, the latter with radio matters. See further Art. 54 (Administrative Regulations), itu Constitution.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004388369_007

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in order to bring them up to date with regard to telecommunications technology and new developments in terms of societal and economic needs.6 The focus of this chapter will be on telecommunications satellites, which, technically speaking, are mere relay stations in Earth orbits. They cannot be referred to as a new means of telecommunications, but simply as a new method of receiving and transmitting radio signals. Perhaps also for this reason, while the itu has traditionally allocated radio frequencies to terrestrial radio ­services, the extension of the itu’s competence to the allocation of radio frequencies to space activities, including experimental and operational satellite telecommunications, has never been challenged. In the 1959 Radio Regulations, some frequency bands were allocated to space activities on a shared channel basis – the “Space Service” – for the first time in the itu’s history.7 In a disaster context, the exchange of information through telecommunications can ensure a proper early warning and be decisive for providing ­assistance to populations at risk, and the safety of workers and volunteers during rescue operations. This is especially true for data collection, distress alerts, geolocation, and the coordination of relief operations.8 When considering that disasters such as earthquakes or flooding often destroy streets and cable-based telecommunications in their entirety, while panic can congest a telecommunications system due to overuse,9 one may properly appreciate why via ­satellite 6 The term “telecommunications” is broadly defined in the itu Radio Regulations as “Any transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems” Art. 1.3 itu Radio Regulations Edition of 2012, 17 February 2012, wrc-12 (entered into force 1 January 2013), [hereinafter Radio Regulations]. The same definition is then reiterated almost verbatim in Art. 1 (15) of the Tampere Convention. The wto Annex on Telecommunications further defines telecommunications as “the transmission and reception of signals by any electromagnetic means”. Art. 3 (Definitions). 7 For a detailed historic survey, see N.M. Matte, Aerospace Law: Telecommunications Satellites, Recueil des cours, 1980, pp. 154–155; J.H. Glazer, The Law-Making Treaties of the International Telecommunication Union Through Time and in Space, Michigan Law Review, 1962, pp. 288–291. 8 “Early warnings of impending disasters and their effective dissemination using telecommunications, including broadcast services, are key factors to successful disaster prevention and preparedness”. Principle 5 of the 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, p. 6. 9 Press Release, International Telecommunication Union, Tampere Convention on Emergency Telecommunications Comes into Force. International Treaty to Ease Access to Life-Saving Technology for Relief Workers (Jan. 7, 2005). http://www.itu.int/newsroom/press_releases/2005/01.html; idrl and Telecommunications: The Tampere Convention, idrl Fact Sheet number 04 – October 2002, http://www.ifrc.org/PageFiles/53431/FactSheet4_v2.pdf.

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telecommunications may offer a rather unique contribution to disaster prevention and management – an additional benefit compared to terrestrial ­telecommunications.10 Since satellite telecommunications do not require any terrestrial infrastructure to operate, they are insensitive to disasters and, in any case, may satisfy the greater demand for access to suitable bands in times of emergency. Aid workers, for example, commonly use portable satellite communications equipment to coordinate logistics and deliver life-saving supplies. As long as a State affected by disaster arbitrarily refuses to accept external humanitarian aid, the first issue to deal with is whether an emission of humanitarian aid signals towards its territory and without its consent is lawful under international law. In an attempt to clarify the applicable international rules, a first distinction is to be made between international transmissions using fixed-installation systems such as telegraph, telephone, and telex and, on the other hand, those services which do not require fixed-installation systems to operate, such as broadcasting or satellite telephones. 5.2

The Consent of the Target State for Fixed Services

In the field of telecommunications, States follow a rather pragmatic approach, with the consequence that it is often difficult to draw a clear demarcation between what international law prescribes or allows, and what simply results from technical necessity or technical possibility. The wisdom of the old adage nécessité fait loi holds true here once again. Due to their technical makeup, international transmissions using fixed-installation systems necessitate the cooperation of all States involved. The incipit of the preamble to the itu Constitution recognises the “sovereign right of each State to regulate its telecommunication”, where the use of the verb “recognise” seems to prove that the contracting Parties did not want to constitute but merely declare the sovereign right of every State to regulate and control its internal telecommunication system. In accordance with the recognised right, the technical, organizational, commercial, and legal conditions have to be coordinated with the territorial State for a service using fixed-installation systems to become operational and to subsequently operate. In this regard, Article 34 of the itu Constitution is emblematic where it reserves the right for Member States to stop the transmission of any private telegram when certain conditions are met. In the light of the above, it is generally recognised that the regulation and control of national 10

Use of satellite and terrestrial broadcast infrastructures for public warning, disaster mitigation and relief, recommendation ITU-R BT.1774-1 (2006–2007).

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telecommunications systems is a matter belonging to the domestic jurisdiction of States.11 Thus, both the installation of a service line (cable laying) and the further operation of the service are subject to the consent of the territorial State. 5.3

The Consent of the Target State for Non-fixed Services

Intangible communications using non-fixed services, such as broadcasting or satellite telephones, are by nature a much larger source of potential conflict. Technically speaking, their operation enables information and data to cross State borders without requiring special co-ordination or prior agreement between the sending and receiving States. This is simply a result of their technical make-up since electromagnetic waves travel at the speed of light. In a similar way to light, they spread through the air as well as outer space, and are subject to reflection, diffraction, absorption, and scattering, making it impossible to stop them at national borders.12 From the sovereignty over the airspace, a part of the legal doctrine deduced that this sovereignty extended to the ether (Äthersouveränitätstheorie). This was considered to empower each subjacent State to prohibit the disturbance of the airspace above its territory by waves caused by wireless communications and emanating from a foreign State. From this premise, then, further declinations were developed. While some authors hold this thesis in absolute terms, others prefer a more nuanced perspective, submitting the right of the subjacent State to the principle of the abuse of rights.13 In any case, the corollary is that each State should conclude agreements with the others in order to be entitled to spread its radio waves beyond its borders. In 1926 and 1928, the International Law Association consistently stated that “the principle of air sovereignty contained in the Aerial Navigation Convention should be embodied in any International Radio Convention”.14 11

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Cf. P. Malanczuk, Freedom of Information and Communication – Recent Developments in the Helsinki Process (Conference on Security and Co-operation in Europe), in A.C. Kiss, J.G. Lammers, Communications et droit international, 1991, p. 90; N.M. Matte, Aerospace Law: Telecommunications Satellites, op.cit., p. 138. As electromagnetic waves are distinguished according to their wavelengths – i.e. ­frequencies – the whole radio spectrum is divided into very low, low, medium, high, very high, ultra-high, super high, and extremely high frequencies, with each group of frequencies being called a “band”. Cf. Oppenheim and Lauterpacht, International Law, 8th Edition, 1955, vol. i, pp. 462, 529– 530; J.H. Glazer, op.cit., p. 292. International Law Association, Rep. 1927, p. 479; 1928, p. 253.

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This legal construct, however, did not consider that the “ether” and “air” are different media, and that electromagnetic waves do not need air to travel. Because of the ontological difference between the two, it cannot be taken for granted that the principle of sovereignty over national airspace covers the ­radio spectrum. This would mean to make the radio spectrum “slave” to a principle developed with reference to other, qualitatively different factual experiences. The same conclusion applies if the “airspace” is assumed to refer to an essentially “geographic realm”, thus including the ether “contained” therein.15 The opposite principle of freedom of the ether (Ätherfreiheit) was developed by other authors, basing their arguments on the outlined physical characteristics of electromagnetic waves, which, whether intended for reception abroad or not, travel freely in the air as well as in outer space, and do not stop at borders.16 It has been stated in this regard that radio communications have for the first time challenged “le dogme de l’impénétrabilité […] de la souveraineté territoriale” [the dogma of the impenetrability […] of territorial sovereignty] (Undurchdringlichkeit).17 The same applies to remote sensing. While passive satellites (with optical sensors) only receive and record the electromagnetic waves coming from an external source, active satellites (with radar sensors) emit waves toward the object being sensed, which are then reflected by the latter and returned to the sensor.18 Even in light of such phenomena, the legal doctrine has coined the conceptual tool of “deterritorialisation”, to describe that States are gradually losing control over their territory.19 Both telecommunications and remote sensing 15

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In the sense that the ether is an aliud with respect to the air space, see A. Verdross, Völkerrecht, op.cit., p. 199; J. Joeden, Die Funksendefreiheit der Staaten, in Jahrbuch für internationales Recht, 1954, p. 99; W. Gorenflos, Die internationale Funkwellenverteilung als ­Rechtsproblem, in Jahrbuch für internationales Recht, 1958, p. 354. Cf. A. Verdross, ibidem, p. 199; F. Schuster, H. Pressler, Deutschland und der Kopenhagener Rundfunkplan, in Jahrbuch für internationales Recht, 1955, p. 36; J. Joeden, ibidem, p. 85. Cf. R. Quadri, Droit international cosmique, op.cit., p. 563. According to R. Quadri, just because electromagnetic waves are incoercible, the principle of freedom of the radio ­spectrum (Ätherfreiheit) prevailed in general international law. R. Quadri, Diritto internazionale pubblico, Napoli, 1968, p. 213. Cf. D.H. Staelin, J. Kerekes, Remote Sensing Capabilities, in D.G. Dallmeyer, K. Tsipis (Eds.), Heaven and Earth: Civilian Uses of Near Earth Space, 1996, The Hague, pp. 163–165. Cf. E. Milano, The Deterritorialization of International Law, vol. 2. 2013, in Esil Reflections, available at http://www.esil-sedi.eu/node/311; D. Kahn, Territory and Boundaries, in B. Fassbender, A. Peters (Eds.), The Oxford Handbook of the History of International Law, 2012, pp. 225–249. “The role of territory as a parameter in international law has come to be in decline”. C. Brölmann, Deterritorialization in International Law: Moving Away from the Divide Between National and International Law, in J. Nijman, A. Nollkaemper, New Perspectives on the Divide Between National and International Law, Oxford, 2007, p. 84. H. Ruiz Fabri argued whether the “relativisation” of territory even implies a necessary

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could alternatively be used as a supporting argument for a functional theory where territory is neither conceived as an object, nor as a constituting element of State sovereignty, but as one of the possible spatial ambits in which sovereignty displays its functions and where “frontiers” are defined according to the specific activity at stake.20 However, for our purposes, what matters is the following: admitting the general existence of freedom in the use and exploitation of the ether does not necessarily mean that limitations to that freedom are inconceivable. Technically speaking, although electromagnetic waves cannot be stopped at national borders, they can nonetheless be jammed. Other authors affirmed that the sovereignty of the subjacent State is limited by the right of inoffensive passage of other States by means of radio waves.21 The Resolution on Radio-telegraphic Communication, adopted by the Institute of International Law during its conference meeting in Lausanne,22 drew a distinction between receiving incoming signals, for which the sovereignty of the target State should be complete, and the “simple passage” of electromagnetic waves, for which the principle of liberty should be adopted, although mitigated by the right on the part of the territorial State to take measures of protection when deemed necessary.23 Although theoretically persuasive, the

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redefinition of the legal notion of “State”. According to the author, that States are losing control on their territory is an incontestable fact from an empirical standpoint, but the legal analysis of this phenomenon is different depending on whether such loss of control is deliberate or passively suffered by the States concerned. Cf. H. Ruiz Fabri, Immatériel, territorialité, et Etat, in Archives de philosophie du droit, 1999, pp. 187–212. Cf. R. Quadri, Diritto internazionale pubblico, op.cit., pp. 633–639. Indeed, as long as intangible communications and remote sensing are exclusively analysed through the traditional international law categories of “territory” and “sovereignty”, the terrain of reasoning is at risk of becoming slippery. R. Quadri’s work in this respect is visionary and worth undusting as the author did not conceive “territory” as an object, nor as a constituting element of State sovereignty, but as a way to protect (“modalité de la protection”) the right of each State to non-interference with its governmental power. Cf. R. Quadri, Droit international cosmique, op.cit., p. 557. For the functional theory applied to the delimitation issue, see supra par. 3.5. See also T. Ballarino, S. Busti, who held the view that no general international law norm exists which prohibits the crossing of the borders of a State by means of electromagnetic waves. Cf. T. Ballarino, S. Busti, op.cit., p. 212; N.M. Matte argues that radio waves emitted by one State are accorded a “right of innocent passage” to pass through the air medium of another State. Cf. N.M. Matte, Aerospace Law: Telecommunications satellites, Recueil des cours 1980, p. 131. An English translation of the International Law Institute Resolution on Radio-telegraphic Communication can be read in J. Brown Scott, The Institute of International Law, ajil, 1927, p. 728. The Rapporteur further adds: “il y a ici, comme en radiotélégraphie, le problème très grave de l’interférence des ondes et du trouble qu’elle apporte au service radiotéléphonique:

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proposed distinction becomes evanescent when bearing in mind the outlined physical characteristics of radio signals. If electromagnetic waves are admitted to pass through the airspace of a State, nothing prevents them from being received by the devices placed within that State. Thus, where a right of passage through the territory of a State is recognised, a right to emit electromagnetic waves towards that State as a target State is de facto necessarily implied. A specific norm of the itu Constitution seems to demonstrate that consent is required for non-fixed services, similarly to fixed services, by stipulating express limitations the receiving State may apply to incoming signals: “Member States also reserve the right to cut off, in accordance with their national law, any other private telecommunications [in addition to private telegram, which is dealt with in paragraph 1 of the same article] which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency” (the so-called “stoppage of telecommunications”).24 In fact, the article refers to “private telecommunications” in general, without distinguishing between fixed services and non-fixed services. Another norm of the itu Constitution recognises for each Member State “the right to suspend the international telecommunication service, either generally or only for certain relations and/or for certain kinds of correspondence, outgoing, incoming or in transit” (the socalled “suspension of services”).25 However, even admitting that these norms are abstractly applicable to satellite telecommunications, the recognition of a right to cut off or suspend does not seem to be decisive in this respect. Since satellite telecommunications do not require a fixed installation to operate – they merely need a user terminal (for example satellite telephones) – the territorial State cannot, in practice, properly cut off or suspend the service. itu regulation is not designed to decide the broader issues involved in the old dispute between the advocates of the free flow of information and those defending the principle of State sovereignty,26 especially because its focus is mainly technical. Those itu norms prescribing the requirement of consent on the part of the receiving State have the purpose of securing an efficient

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problème qui peut être résolu seulement par le voie des accords internationaux” [There is here, as in radiotelegraphy, the very serious problem of the interference of waves and the disturbance it brings to the radiotelephonic service: a problem which can only be solved by means of international agreements]. Institut de droit international, Communications radiotélégraphiques, rapport présenté par M.A. Cavaglieri, p. 166. Art. 34 (2) (Stoppage of telecommunications), itu Constitution. Under the condition that it immediately notifies each of the other Member States of such action through the Secretary General. Art. 35 (Suspension of services), itu Constitution. In this sense, see also P. Malanczuk, Freedom of Information and Communication – Recent Developments in the Helsinki Process (Conference on Security and Co-operation in Europe), op.cit., p. 95.

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and equitable use of the limited orbit/frequency spectrum, in order to prevent the occurrence of harmful interference.27 The sole consideration of the itu regime would even cause major contradiction rather than removing it. On the one hand, the itu defends the right of a State to cut off or suspend incoming communications. One may argue that the stoppage or suspension of a service includes the deliberate “harmful interference” with the incoming signal (jamming), because this may lead to the same result. On the other hand, the itu also protects the right to international protection from “harmful interference” with all frequencies registered.28 Therefore, it appears necessary to take a broader view without focusing solely on the itu regime. uncopuos was put in charge of producing the text of a draft Convention on Principles Governing the Use by States of Artificial Earth Satellites for Direct Television Broadcasting by the UN General Assembly.29 But given the contradiction of interests at stake, no consensus was reached. Instead of a treaty text, a resolution was adopted which was then submitted to the UN General Assembly for final approval: Resolution 37/92 on the Principles Governing the Use by States of Artificial Earth Satellites for International D ­ irect Television Broadcasting.30 The non-binding instrument 27

28 29

30

“When it is necessary for a ship station to send signals for testing or adjustments which are liable to interfere with the working of neighbouring coast stations, the consent of these stations shall be obtained before such signals are sent”. Art. 57.9, Radio Regulations. “In Regions 1 and 3 (except for Japan), in the band 8 025–8 400 MHz, the Earth ­exploration-satellite service using geostationary satellites shall not produce a power fluxdensity in excess of the following values for angles of arrival (θ), without the consent of the affected administration”. Art. 5.462A, Radio Regulations. “In devising the characteristics of a space station in the broadcasting-satellite service, all technical means available shall be used to reduce, to the maximum, the radiation over the territory of other countries unless an agreement has been previously reached with such countries”. Art. 23.13, Radio Regulations. Further on harmful interference see infra par. 5.5. The UN General Assembly Resolution 2916 through which the General Assembly put uncopuos in charge of creating the text of a draft convention emphasises that the “activity of States in the field of direct television broadcasting must be based on the principles of mutual respect for sovereignty, non-interference in domestic affairs […]”. It further considers that the “introduction of direct television broadcasting by means of satellites could raise significant problems connected with the need to ensure the free flow of communications on a basis of strict respect for the sovereign rights of States”. The Resolution was approved by a vote of 102 in favour to 1 against (United States), with 7 abstentions. (unga Resolution 2916 xxvii Preparation of an International Convention on Principles Governing the Use by States of Artificial Earth Satellites for Direct Television Broadcasting, adopted on 9 November 1972). Resolution 37/92 on the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, adopted on 10 December 1982.

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stipulates in paragraph 8 that “States should bear international responsibility for activities in the field of international direct television broadcasting by satellite carried out by them or under their jurisdiction”. At the same time, as outlined in paragraphs 13 and 14 providing for the requirement of prior consultation and agreement, the principle of prior consent of the receiving countries was not abandoned. This is the reason why most States operating broadcasting satellites, which, at that time, were mainly Western countries, voted against or abstained (it passed by a vote of 107 to 13, with 13 abstentions). At the time of the adoption of every single instrument dealing with direct broadcasting by satellite, a dispute arose between those States supporting the freedom of broadcasting and those who, on the contrary, advocated the requirement of prior consent of the receiving State. This proves the lack of a clear opinio iuris on the matter under analysis.31 Against this nuanced backdrop, the Convention on the Law of the Sea contains a norm calling upon Member States to cooperate in the suppression of unauthorised broadcasting from the high seas and specifies that, for its purposes, “unauthorised broadcasting” “means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations”.32 This norm is particularly significant because it equates the lack of authorization by the recipient States with the infringement of “international regulations”. However, it is clear that it could be nothing more than an argument to use in supporting the thesis of the prior consent requirement, because it only applies to pirate radio stations on the high seas while leaving the lawfulness of the emission of signals from stations placed under a national jurisdiction unprejudiced. The same applies to Article 23.2 of the Radio Regulations, which prohibits “the establishment and use of broadcasting stations (sound broadcasting 31

32

The United Nations Educational, Scientific and Cultural Organization (unesco) adopted the Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange, which supports the principle of prior consent regarding Direct Broadcasting Satellite signals. In ­particular, its Art. 9 states that “it is necessary that States […] reach or promote prior agreements concerning direct satellite broadcasting to the population of countries other than the country of origin of the transmission”. However, at the same time, the article specifies that the principle of freedom of information shall be taken into account. ­(Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange, adopted on 15 November 1972, by 102 votes against 1, the US delegation casting the only dissenting vote). Emphasis added. Art. 109 (Unauthorized broadcasting from the high seas), United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; entry into force: 16 November 1994), unts 1833, p. 396.

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and television broadcasting stations) on board ships, aircraft or any other floating or airborne objects outside national territories” and has a similarly narrow scope of application. In light of the above, it appears clear that in the dispute between Äthersouveränitätstheorie and Ätherfreiheit, there is neither a winner nor a loser. What is certain is that an incoming signal cannot interfere with registered radio frequencies, which is specifically prohibited by the itu Constitution.33 Apart from that, both theses may be supported by valid arguments and, at the same time, be refuted. The core issue is rather to establish whether a rule requiring the consent of the target State could be enforced. States control or manage the flow of information by jamming against unwanted incoming signals in order to force other States to alter their modes of diffusion.34 This proves that they have an interest in controlling signals entering their respective territories, and in being able to influence the functioning and distribution of satellite services. International practice, however, is not such as to univocally support the lawfulness of this activity. Following the systematic and massive deliberate interference of several international networks emanating from Iranian territory since October 2012, which affected both broadcasting on Iranian territory and international broadcasting to other Middle East regions, for example, Eutelsat – one of the most severely affected French companies – filed a complaint with the French Agence Nationale des Frequénces and the itu’s Radio Regulations Board.35 Iran did not even attempt to argue it had the right to stop or jam those transmissions, but rather denied that it could take control of the jamming ­activity taking place from its territory.36 Furthermore, two obstacles seem to exclude the resort to jamming as a viable self-help option, the first one being empirically grounded and applicable to all telecommunications regardless of their content, the second one specifically referring to relief communications. By carrying out harmful interference 33 See infra par. 5.5. What is commonly considered a safety net is the fact that at least a limitation exists: the prohibition of broadcasting of propaganda designed or likely to provoke or encourage any threat to peace, breach of peace, or act of aggression. Cf. N.M. Matte, Aerospace Law: Telecommunications Satellites, Recueil des cours, 1980, pp. 141–142; P. Malanczuk, Freedom of Information and Communication – Recent Developments in the Helsinki Process (Conference on Security and Co-operation in Europe), op.cit., pp. 91–96. 34 Cf. N.M. Matte, ibidem, pp. 140–141; G. Penent, Controlling Information Flow: A Political History of Jamming, in Note de l’IFRI Governing the Geostationary Orbit – Orbital Slots and Spectrum Use in an Era of Interference, op.cit. p. 33. 35 Eutelsat recorded 340 jamming incidents from January to November 2012, a high percentage of which originated from Iran. 36 European Space Policy Institute Report, Space Crisis Management: Europe’s Response, Report 44, February 2013, pp. 23–25.

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as a “self-help” measure, collateral effects would be difficult, if not impossible to avoid. In case of broadcasting, for example, it is not just the reception of the targeted channel that would be damaged, but all channels in the same multiplex. As many as ten to twelve TV channels or fifty radio channels could be affected when one channel is targeted.37 Moreover, since the overspill is unavoidable, the resulting harmful interference will never be limited in its effects to the territory of the jamming State.38 As a consequence, the jamming State will likely jam the radio frequencies of States other than the author of the unwanted signal emission as well. This, in turn, means that it will commit unlawful acts under the itu regime.39 The most important obstacle excluding the resort to jamming as a viable self-help option against unwanted relief communications is the following. As stated by the International Court of Justice in the already recalled dictum of the Military and Paramilitary Activities in and against Nicaragua judgement, humanitarian aid “cannot be regarded as unlawful intervention, or as in any other way contrary to international law”.40 Thus, it will be difficult for the t­ arget State to justify the use of jamming against the emission of humanitarian aid signals towards its territory on the basis of the principle of non-­intervention, or the assumption that, with the emission of humanitarian aid signals, a violation of international law has been committed. Finally, let us assume that the unauthorised emission of signals was unlawful. If the consent to humanitarian assistance was arbitrarily withheld by a State, the assumed unlawfulness of an unauthorized emission would be precluded by the state of necessity. As pointed out above, it is generally admitted that the essential interest to safeguard acting upon necessity does not need to be the self-interest of the State relying on necessity.41 Relief communications to support relief actors operating in-country may be justified by the common interest of the international community to prevent the imminent and severe 37

Cf. A. Bonté, eutelsat: Freedom of Information “Regardless of Frontiers”, in Note de l’IFRI Governing the Geostationary Orbit – Orbital Slots and Spectrum Use in an Era of Interference, op.cit., pp. 54–55. 38 N.M. Matte seems to suppose that harmful interference could be carried out as a countermeasure as long as it is strictly limited to the territory of the State originally affected. Cf. N.M. Matte, Aerospace Law: Telecommunications Satellites, Recueil des cours, 1980, pp. 140–141. 39 Cf. D. Zannoni, The Radio-Spectrum: International Regulation and Current Challenges, aasl 2015, pp. 695–696. 40 Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgment of 27 June 1986, icj Reports 1986, par. 242. 41 See supra par. 2.10.

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suffering of a civilian population, as they do not seriously impair the affected State’s essential interest in its territorial sovereignty.42 As will be pointed out below, itu Member States are far from entitled to resort to jamming. Much rather, they, including the affected State, are called upon to grant disaster-related telecommunications priority over other communications and enhanced protection from harmful interference. 5.4

The Priority of Distress and Safety Telecommunications

Article 44 of the itu Constitution is a key norm regulating the use of the radio frequency spectrum, and of the geostationary satellite and other satellite orbits. It looks at both the behaviour of Member States and the legal nature of these resources. As for the first aspect, itu Member States are requested to endeavour to limit the number of frequencies and the spectrum used to the minimum required to provide the necessary services in a satisfactory manner, and to implement the latest technical advances as soon as possible. This is clearly linked to the general principle of civiliter uti, which goes hand in hand with the concept of res communis omnium and could also be defined as a duty of sustainable use.43 It has been maintained that this is a goal as opposed to a duty; the admonishment is not “shall limit”, but “shall endeavor to limit”.44 However, the Radio ­Regulations strengthen Article 44 of the itu Constitution in stating that: “transmitting stations shall radiate only as much power as is necessary to ensure a satisfactory service”45 and further clarifying that “the out-of-band e­ missions of transmitting stations should not cause harmful interference to services which operate in adjacent bands in accordance with these Regulations”.46 Secondly, and more importantly, Article 44 of the itu Constitution qualifies radio frequencies and any associated orbits, including the geostationary orbit, as “limited natural resources” which must be used rationally, efficiently, and economically, in conformity with the provisions of the itu Radio Regulations. 42 See supra par. 2.9. 43 Cf. S. Marchisio, The itu Regulatory System: A Self-Contained Regime or a Part of International Law?, op.cit., p. 75. 44 Cf. M.L. Smith, International Regulation of Satellite Communication, Dordrecht, 1990, p. 46. 45 Emphasis added. Art. 15.2 Radio Regulations. Consider the Global Navigation Satellite System (gnss) operator that radiates too much power in consideration of the signal carried in a manner that is detrimental to other gnss operators. This conduct is incompatible with Art. 44 of the itu Constitution. 46 Art. 15.10, Radio Regulations.

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Mention of natural resources usually evokes images of physical things such as ocean fisheries, minerals, or fossil fuels being subject to consumption and extraction. By contrast, this norm focuses on two natural resources which are not consumed or extracted, so it is impossible to deplete or damage either of them on a permanent basis. Despite being “boundless”, radio frequencies and geostationary satellite orbit slots are limited in their availability because overcrowding and lack of coordination can quickly reduce or eliminate their usefulness. If they are not properly used and managed, harmful interference could occur, which, in turn, might impede the use and control of satellites whose functioning depends on ready access to interference-free radio frequencies and appropriate orbital slots. For these reasons, the possibility to use the radio spectrum is necessarily achieved through a system of registration and coordination of radio frequencies and orbital positions, and of protection of those already assigned from harmful interference.47 From a technical perspective, three different systems are possible to manage disaster-related telecommunication. The most extensive measure could be a dedicated disaster communications system.48 A second approach could be to facilitate disaster relief communications by establishing a dedicated disaster relief radio frequency.49 Finally, a third approach could consist in granting 47 48

49

For an analysis of the itu system for radio frequency registration, see D. Zannoni, The Radio-Spectrum: International Regulation and Current Challenges, op.cit., pp. 688–692. The most advanced systems are found in some regional instruments regulating disaster response. The Agreement Establishing the Caribbean Disaster Emergency Response Agency, for example, provides that the Coordinating Unit shall “establish, equip and maintain an emergency operations system capable of handling emergency telecommunications and facilitating coordination of emergency responses involving many services, supplies and facilities”. Art. 11(c) (Functions of the coordinating unit), Agreement Establishing the Caribbean Disaster Emergency Response Agency. In the EU, a Council decision mandates the Commission to establish and manage a reliable emergency communication and information system. Cf. Council Decision 2001/792/EC, Euratom, of 23 October 2001, establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions, OJ L 297, 15 November 2001, pp. 7–11, Art. 4 (b). At global level, the creation of an emergency telecommunication infrastructure accessible 24/7 from anywhere on Earth was proposed, which requires the combination of resources available in various countries. See Evaluation of the ocha (drb) Project on Emergency Telecommunications with and in the Field, United Nations Office for the Coordination of Humanitarian Affairs (unocha), Ryszard Struzak, p. iii. There may be also a combination of the outlined technical solutions. For example, at the level of bilateral treaties, the 2001 Agreement between the Swiss Federal Council and the Government of the Republic of the Philippines on Cooperation in the Event of Natural Disaster or Major Emergencies states that “the competent authorities of the requesting State shall undertake […] to facilitate the use by the aid units of existing ­telecommunication

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disaster-related communications priority over other communications within existing communications networks.50 itu Member States, including those which are affected or potentially affected by a disaster, shall grant disaster-related telecommunications priority over other communications and enhanced protection from harmful interference. In addition, Member States are recommended to reserve certain radio frequencies for disaster relief. As for the first aspect, the itu Constitution requires international telecommunications services to give absolute priority to all telecommunications concerning “safety of life at sea, on land, in the air or in outer space”, and to epidemiological telecommunications of exceptional urgency of the who.51 This obligation shall be read in combination with the notification system on the international spread of disease established by the International Health Regulations.52 The same absolute priority shall also be given to “distress calls and messages”, both incoming and outgoing, regardless of their origin,53 which is also reflected in Article 44 of the Radio Regulations, setting the order of priority of communications: “Distress calls, distress messages and distress traffic” fall within the very first category. The above-mentioned types of communications are the only ones which even enjoy priority over government telecommunications. The latter “enjoy priority over other telecommunications to the extent practicable upon specific request by the originator”, but “subject to the provisions of Articles 40 and 46 of this Constitution”,54 which respectively deal with safety-of-life communications, epidemiological telecommunications of exceptional urgency of the who, and distress calls and messages. Furthermore, the freedom itu Member States wanted to retain regarding the most sensitive area of “National Defence

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51 52 53 54

systems or the use of special frequencies, or both, or the establishment by the aid units of an emergency telecommunications system” (Art. 8 (2)). Numerous early telegraphic conventions already contained provisions allowing telegraphic transmissions to be interrupted in the case of an emergency: Paris International Telegraphic Convention (Paris, 1865), Art. 11; International Telegraph Service Rules (Brussels Revision, 1928), Art. 36. Others accorded priority to calls of distress: International Radiotelegraph Convention (Berlin, 1906), Art. 9; International Radiotelegraph Convention (London, 1912), Art. 9; General Regulations Annexed to the International Radiotelegraph Convention (Washington, 1927), Art. 11; International Telegraph Service Rules (Brussels Revision, 1928), Art. 35. Art. 40 (Priority of Telecommunications Concerning Safety of Life), itu Constitution. See Chapter i, footnote n. 124. Art. 46 (Distress calls and messages), itu Constitution. Art. 41 (Priority of government telecommunications), itu Constitution.

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Services” has a specific limit: even those services must “so far as possible” observe the aforesaid statutory provisions relative to giving assistance in cases of distress.55 As long as the objective of communications is to assure appropriate assistance or rescue, itu norms are exceptionally “mitigated”. Only in cases of emergency or disaster relief, amateur stations may be used for transmitting international communications on behalf of third parties.56 In the same circumstances, a land station may also communicate with fixed stations or land stations of another category in addition to the ones of the same category, as the general rule prescribes.57 5.5

The Special Protective Regime for Distress and Safety Frequencies

The prohibition of harmful interference is contemplated both under Article 45 of the itu Constitution and Article 15 of the Radio Regulations. It seems safe to say that it represents the cornerstone of the itu’s normative framework.58 While the general rule is that itu Member States are bound to abide by the provisions of the Constitution, the Convention, and the Radio Regulations only when engaging in international services, domestic radio services 55 56

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Art. 48 (Installations for National Defence Services), itu Constitution. Art. 25.3, Radio Regulations. Each administration may determine the applicability of this provision to amateur stations under its jurisdiction. Administrations are further encouraged to take the necessary steps to allow amateur stations to prepare for and meet communication needs in support of disaster relief. Art. 25.9A, Radio Regulations. Articles 4.15, 4.16, Radio Regulations. We do not share the reasoning expressed by L.J. Smith, according to whom “although the International Telecommunication Union (itu) Constitution contains provisions relating to non-interference (see Art. 45), it clearly specifies that States are not responsible for such interference”. L.J. Smith, International Regulation of Satellite Communication, op.cit., p. 300. It is true that, according to Art. 36, itu Constitution, Member States accept no responsibility towards users of international telecommunication services, particularly as regards claims for damages. The norm, however, concerns the responsibility of private law towards private parties as well cases in which foreign States suffer damages as mere users of another State’s telecommunications lines. In such cases, the latter State would not be responsible towards the user State for any damage arising from their use. In this sense, see also N.M. Matte, Aerospace Law, Telecommunications Satellites, Recueil des cours, 1980, pp. 142–143. On the contrary, and by way of example, a State exercising its right to licence a radio station, including authorisation to use a certain location and frequency, is internationally responsible if the assigned frequency causes harmful interference to foreign radio stations because it runs counter to the licensing State’s international obligations under the itu rules.

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are also subject to the relevant itu provisions as long as they are capable of causing harmful interference to radio services of other countries.59 Furthermore, the right reserved by Member States “for themselves, for the operating agencies recognised by them and for other agencies duly authorised to do so” to make special arrangements on telecommunication matters has a clearly defined limit: these arrangements cannot be in conflict with itu norms so far as the harmful interference their operation might cause to the radio services of other Member States is concerned.60 Therefore, again, the risk of harmful interference implies that the application of itu norms prevails over other subsequently stipulated special arrangements. Finally, also the freedom the Member States wanted to retain regarding the most sensitive area of Installations for National Defence Services is limited “so far as possible” by the due observance of the measures to be taken to prevent harmful interference.61 Although the prohibition of harmful interference is the general rule applicable to all types of services, it is significant that the norm defining “harmful interference” particularly emphasises that it applies to radio navigation and “other safety services”, which are those radiocommunication services used for safeguarding human life and property.62 Indeed, the itu defines “harmful interference” as: “interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radio-communication service operating in accordance with Radio Regulations”.63 This peculiar attention is easily explained bearing in mind the factual consequences harmful interference could bring when affecting radio navigation and safety services: it could even lead to rescue operations failing, thereby causing loss of life and damage to the environment. To ensure the availability and protection from harmful interference of the frequencies provided for distress and safety purposes is a specific objective of the itu Radio Regulations.64 As far as the availability of frequencies is concerned, the itu adopted a number of resolutions recommending that Member States identify specific bands to be used for public protection and disaster relief applications in advance. Recommendation No. 1 of the World Administrative Radio Conference of 1979 advises that administrations identify frequencies for 59 60 61 62 63 64

itu Constitution, Art. 6 (1) (Execution of the Instruments of the Union). Ibidem, Art. 42 (Special Arrangements). Ibidem, Art. 48 (Installations for National Defence Services). Art. 1.59, Radio Regulations. Emphasis added. Art. 1.169, Radio Regulations. The same definition is contained in the Annex Definition of Certain Terms Used in this Constitution, the Convention, and the Administrative Regulations of the International Telecommunication Union (1003). Par. 7 of the Preamble, Radio Regulations.

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use in disasters,65 a resolution of the World Radio Conference of 2000 recommends the “identification of globally/regionally harmonized frequency bands for future advanced solutions to meet the needs of public protection agencies and organizations, including those dealing with emergency situations and disaster relief”,66 and a resolution of the World Radio Conference of 2015 goes further by encouraging Member States to consider specific frequency ranges – for example parts of 694–894 MHz – in order to achieve harmonisation.67 A further resolution calls upon States to assign the necessary working frequencies to the Red Cross and Red Crescent Movement.68 Distress and safety frequencies, and frequencies used for disaster earlywarning or relief, are then submitted to a special and preferential protective regime against harmful interference.69 In this regard, the Radio Regulations address both prevention and, as long as harmful interference occurs despite the adoption of preventive measures, elimination of harmful interference. Any emission is prohibited as long as it is capable of causing harmful interference to distress, alarm, urgency, or safety communications on the international distress and emergency frequencies.70 Member States are obliged to prevent harmful interference to those radio frequencies to the greatest extent possible71 and, in particular, to contemplate “greater protection requirements” to 65

Recommendation 1 relating to the use of space radio communication systems in the event of natural disasters, epidemics, famines, and similar emergencies, warc, Geneva, 1979. 66 The need “for interoperability and interworking between security and emergency networks, both nationally and for cross-border operations, in emergency situations and disaster relief” was emphasised. Resolution 645, Global Harmonization of Spectrum for Public Protection and Disaster Relief, wrc, Istanbul, 2000. 67 Resolution 646, Public protection and disaster relief, wrc, Geneva, 2015. 68 Resolution 10 on the use of two-way wireless telecommunications by the International Red Cross and Red Crescent Movement, wrc, Istanbul, 2000. 69 “Under itu Radio Regulations, radio-navigation and other safety services are, in simple terms, given a “priority status” over radio-communication services”. H. zur Hausen, Aviation, Telecommunications, and Frequencies: Will leo Satellite Services Obstruct Planned gnss? xxii.3 Air & Space Law, 1997, p. 119. The Agreement on the promotion, provision, and use of Galileo and gps satellite-based navigation systems and related applications makes this regime by reference compulsory for “safety-of-life services”: “the Parties shall endeavour to provide signals intended for safety of life services with the required level of safety as recognised by competent international bodies”. Art. 7 (2) (Open Access to Civil Satellite-based Navigation or Timing Signals). 70 Art. 4.22, Radio Regulations. 71 The Radio Regulations constantly underline that “special consideration” shall be given to avoiding interference on distress and safety frequencies. See, for example, Radio Regulations, Art. 15.8. Administrations shall take “all practicable and necessary steps to ensure” that no harmful interference is caused, “in particular, to a radio-navigation or any other safety service”. See Radio Regulations, Articles 15.12, 15.13.

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applications used for public protection and disaster relief.72 All these frequencies consistently also enjoy special consideration upstream in the coordination with other frequencies.73 Finally, although the general obligation to prevent “harmful interference” already covers the falsification of signals (spoofing),74 the need to prevent spoofing is nonetheless particularly emphasised by the itu Constitution as far as disaster-related communications are concerned. It explicitly requires Member States to take the necessary steps for preventing the “transmission or circulation of false or deceptive distress, urgency, safety, or identification signals, and to collaborate in locating and identifying stations under their jurisdiction transmitting such signals”.75 72 73

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Art. 5.225A, Radio Regulations. “Member States recognize that the safety aspects of radionavigation and other safety services require special measures to ensure their freedom from harmful interference; it is necessary therefore to take this factor into account in the assignment and use of frequencies”. Radio Regulations, Art. 4.10 (Assignment and Use of Frequencies). The fact that the prohibition of harmful interference includes spoofing can be deduced from the technical modalities through which spoofing is carried out. Spoofing no doubt endangers and degrades the proper functioning of the radio navigation service and even obstructs the service as long as it prevents the original signal from reaching the receiver by replacing it with a false one. Thus, it perfectly falls within the definition of “harmful interference” contained in Art. 1.169 of the Radio Regulations. A decisive and normative confirmation thereof is offered by Art. 15.1 of the Radio Regulations, which, under the title of “Interferences”, forbids all stations from carrying out unnecessary transmissions, transmission of superfluous signals, and also “the transmission of false or misleading signals, or the transmission of signals without identification”. Thus, this article makes it clear that the transmission of false signals (spoofing) is included in the concept of interference. Emphasis added. Art. 47 (False or Deceptive Distress, Urgency, Safety or Identification Signals), itu Constitution. The introduction of a technical method of authentication could reassure civil users of the integrity of the signal content and, at the same time, the true identity of the sender. “The activation of anti-spoofing (AS) will make the gps precise positioning service (pps) inaccessible to those without the appropriate keys”. Recommendation ITU-R TF.767-1, Use of the Global Positioning System (gps) and the Global Navigation Satellite System (glonass) for High-Accuracy Time Transfer, Annex i (Intentional Degradation on gps Signals), p. 2. Proposals have been made to incorporate security and authentication signatures directly in the civil gps signal. Cf. O. Pozzobon, C. Wullems, K. Kubik, Secure Tracking Using Trusted gnss Receivers and Galileo Authentication Services, Journal of Global Positioning Systems, 2004, p. 200. A method of authentication was also elaborated providing the anti-spoofing benefits of secret codes without needing access to the codes themselves. Cf. L. Sherman, D. De Lorenzo, P. Enge, Signal Authentication. A Secure Civil gnss for Today, InsideGNSS (September-October 2009), online: InsideGNSS . On the contrary, existing tools for neutralising harmful interference are limited, if not non-existent. Even if a method of authentication was adopted, harmful interference would remain technically feasible and would therefore continue to deserve proper legal consideration.

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As long as, despite the adoption of the outlined preventive measures, harmful interference ends up affecting distress and safety frequencies, the elimination thereof is, according to the Radio Regulations, imperative.76 5.6 Conclusions One fact is not just possible but certain: satellite telecommunications permit the management of disasters despite the arbitrary refusal of humanitarian assistance by the affected State. Third States and international organisations may emit humanitarian aid signals to be received by local humanitarian organisations already working within the affected State.77 This cannot be considered as unlawful interference in the affected State’s domestic affairs, nor is it in any other way contrary to international law.78 The affected State cannot stop the humanitarian aid signal at the border, because this is not technically feasible. Furthermore, far from being entitled to resort to jamming, itu Member States, including the affected State, shall grant disaster-related telecommunications priority over other communications and enhanced protection from harmful interference. The issue is the following: while the operation of telecommunications satellites is governed by the principle of freedom in the exploration and use of outer

76 77 78

The legal doctrine has so far exclusively focused on liability issues for damage stemming from errors and malfunctions of radio navigation systems, while the risk that the radio navigation signal can even be falsified has never been properly considered. For some analyses and proposals de iure condendo on liability aspects related to the Global Navigation Satellite System (gnss), see P. Manzini, A. Masutti, An International Civil Liability Regime for the Galileo Services: A Proposal, xxxiii Air & Space Law, 2008, p. 114; M. Ferrazzani, Recent Legal Developments of gnss in Europe, in Proceedings of the International Institute of Space Law, Cape Town, 2011, p. 359; N. Jingjing, The Future of Uniform International Rules on gnss Liability, in Proceedings of the International Institute of Space Law, Cape Town, 2011, p. 339; H.G. Bollweg, gnss-Liability by International or European Union Law?, 59 zlw, 2010, p. 551; A. Loukakis, Product Liability Ramifications for Erroneous gnss Signals: Is an Alternative Approach Possible?, in Proceedings of the 56th Colloquium on the Law of Outer Space, Beijing, 2013, p. 305. Art. 15.28, Radio Regulations. “Les réseaux peuvent donc être pour les Etats des vecteurs latents de présence à l’étranger ou des vecteurs d’information” [Networks can therefore be for States latent vectors of presence abroad or vectors of information]. H. Ruiz Fabri, op.cit., p. 205. We refer here again to Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgment of 27 June 1986, in icj Reports 1986, par. 242.

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space,79 a user terminal is indispensable in order to receive a signal on the ground, where the principle of State sovereignty applies again. For this reason, though the importance of emergency telecommunications use has generally been acknowledged, a variety of limitations make it difficult for telecommunications to unfold their full potential in this context, and often prevent them from developing their potentials altogether. Domestic regulatory restrictions of the affected State may prevent the transportation of telecommunications equipment (such as satellite telephones) into the country, while operators may be required – as often is the case – to obtain operating licences in order to communicate within the area in which disaster relief operations are taking place and with the outside world.80 In sum, the affected State may act “on the ground” through restrictions or prohibitions of either the import or the domestic use or both of the users terminals required for non-fixed services to operate.81 Evidence for the fact that satellite-based humanitarian aid is widely undermined if not supported by the consent of the affected State can be found in studies and interviews conducted by the International Federation of Red Cross and Red Crescent Societies in Norway, Sri Lanka, and Vietnam, for example, which noted that some respondents had experienced difficulties obtaining approval for using satellite telephones in conflict zones.82 In this regard, international treaties on disaster relief increasingly contemplate a right of disaster relief personnel to effective communication and an obligation of the territorial State to facilitate such communication by removing, or at least reducing, the regulatory barriers traditionally encountered in the use of telecommunication equipment or the radio frequency spectrum in relief operations. The Tampere Convention, for instance, requires State Parties to waive taxes that would normally be charged when bringing equipment into the country, and to expedite licensing procedures.83 79 Art. i, Outer Space Treaty. 80 Telecoms for Disaster Relief: Tampere Convention, World Summit on the Information Society, Prepcom 2, Parallel session, 22 February 2005, Easing the Way to Disaster Mitigation: the Tampere Convention, Statement by M. Ferrari, Deputy Head of the Humanitarian Aid Department, Swiss Agency for Development and Cooperation, p. 1. The ifrc study on Indonesian practice following the 2004 tsunami notes that “some organisations […] experienced delays in obtaining radio licenses for their equipment”. ifrc, Legal issues arising from the international response to the tsunami in Indonesia, July 2006, p. 20. 81 Cf. A.E. Gotlieb, op.cit., p. 256. 82 ifrc International Disaster Response Law Project, report on studies and interviews conducted in Norway, Sri Lanka, and Vietnam, February-May 2003, p. 7. 83 Art. 9 (Regulatory barriers), Tampere Convention. See also Art. 14 (a) of the asean Agreement exempting telecommunications equipment from import taxes and duties when

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In its Draft Articles on the Protection of Persons in the Event of Disasters, the International Law Commission consistently contemplates that “the affected State shall take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance”.84 An exhaustive list of potential measures aimed at facilitating external assistance in relation to equipment and goods is not provided. The Commentary specifies nonetheless that “given the crucial role of telecommunications in emergency situations, it will often be necessary to reduce or limit regulations restricting the use of telecommunication equipment or of the radio-frequency spectrum, as envisaged by the 1998 Tampere Convention”.85 It appears that parallels can be drawn with the conclusion reached above for remote sensing.86 If a State offers telecommunications assistance to prevent an impending disaster or to manage a disaster that has already occurred, arguably the concerned State has the obligation to accept whenever its own telecommunications resources are insufficient to protect the people under its jurisdiction. This obligation can be conceived respectively as part of a more general duty to diligently prevent a disaster, and not arbitrarily refuse humanitarian assistance. In fact, as far as disaster prevention is concerned, a State that refuses the necessary telecommunications assistance can hardly claim to have acted within diligence requisites, should a disaster occur.87 The same goes for disaster response. In the first part of this work, it was ascertained that the obligations to protect human rights include an obligation to accept assistance in a situation of disaster whenever States are unable to fulfil human rights obligations resting upon them on their own. This arguably includes a duty to accept telecommunications assistance from outside if a State’s own space resources are not sufficient to protect the people under its jurisdiction.88 Think of the following situation, for example: a disaster affects vast areas which are difficult to manage without the support of telecommunications and, despite this, the affected State refuses telecommunications assistance. In such a case, as long as the emergency can be brought under control using the offered brought onto the territory of the affected State for the purpose of providing assistance. asean Agreement on Disaster Management and Emergency Response, 2005. 84 Draft Art. 15 (Facilitation of external assistance), ilc Draft Articles on the Protection of Persons in the Event of Disasters. Besides, as clarified above, States refuse external humanitarian assistance either explicitly or implicitly. In the latter case, through a strategy that hinders humanitarian assistance. See supra par. 2.2. 85 Commentary to Draft Art. 15 (Facilitation of external assistance). 86 See supra par. 4.12. 87 See supra par. 1.5. 88 See supra par. 2.6.

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t­ elecommunications assistance, the affected State cannot use the vastness of the area affected, or the difficulties in managing the disaster as an argument for denying the application of human rights standards. Time will tell whether future technical and scientific changes in the field of telecommunications will make States willing to provide aid through space technologies less dependent on the cooperation of affected States.

Final Remarks The fil rouge of this study, which links all its parts, has been an attempt to resolve the tension between sovereignty and the need to alleviate the human suffering of a population left to its fate, between solidarity and self-interest, between the asserted moral obligation to assist and the States’ reluctance to recognize a duty to do so. During an emergency this tension is even clearer. It is now time to take stock and attempt to answer the crucial question: is international law equipped to tackle the challenges posed by the dramatic increase in disasters? The first issue to verify was whether and to what extent there is an obligation to notify impending disasters under international law (so called “early warning”), which raised a number of interrelated questions, specifically of who must notify, when, and what information should be given by the notification. In accordance with the growing opinio iuris which foresees both natural and man-made disasters under the same legal regime, early warning was ascertained to be compulsory for all impending disasters regardless of their origin. Of course, it may be rather difficult to prove that a State, not the State of origin, was aware of an impending disaster, and did not issue an early warning. But this difficulty does not have to do with the interpretation of the obligation; but with proof of breach. Such obligation on the part of States may be crucial as an emergency notification allows potentially affected countries the greatest possible opportunities to prepare for, and mitigate, potential damages. This constitutes the basic component of a system designed to prevent and ultimately limit the consequences of a harmful event. Shifting the focus to disaster response, and considering the general rule of consent, the central issue was to establish whether or not the affected State has unfettered discretion to refuse humanitarian assistance and whether, under specific circumstances, humanitarian assistance delivery without the consent, or even despite the refusal of the affected State is lawful. The critical situation occurs when the affected State refuses an offer of assistance, despite its inability or unwillingness to provide the needed humanitarian assistance to the victims. Certain key factors were identified to ascertain when a refusal is arbitrary, or, stated in positive terms, what are valid reasons for refusal. In this regard the practice of treaty monitoring bodies tasked with supervising the observance of human rights treaties was helpful. Indeed, human rights treaty bodies and the European Court of Human Rights extensively interpret obligations to protect human rights that rest upon State Parties. These include the duty to accept humanitarian assistance in disaster situations, whenever their own capacity fails.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004388369_008

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Thus, as long as the situation may be coped with using external humanitarian aid, States cannot use the disaster as a justification to deny the application of human rights standards. The prism of disaster emergency has clarified that, when lives of human beings are in danger, territorial sovereignty becomes, to a certain extent, porous. It bends in front of the value of human life and the urgent need to rescue. Given a situation of “human tragedy” in a disaster context, the UN Security Council may encourage States to grant access for humanitarian relief operations through recommendations, or adopt binding measures requiring those States to consent to humanitarian relief operations. It may even authorize Member States to use “all necessary means” to overcome the lack of consent, either because the affected State persistently refuses the needed humanitarian assistance, or because it is unable to give formal consent within a prompt timescale to react to an overwhelming disaster. While the UN Security Council has never taken this approach to disaster response, it remains in principle feasible, being consistent with the development of its current practice, in particular where a situation of “human tragedy” is further exacerbated by the arbitrary refusal of humanitarian assistance. Human suffering does not change in nature depending on whether it is of natural or man-made origin. Moreover, just because a permanent member of the UN Security Council holds its protective hand over the refusing State, this does not mean that no humanitarian assistance can be delivered. One fact, indeed, is not just possible, but certain: national sovereignty can no longer be understood as the paramount rule of international law that overrides all other values. Although the existence of a right/duty of humanitarian intervention is still doubtful in international law, it seems nonetheless that a limited infringement of territorial sovereignty may be admitted as long as the requirements of the defence of necessity are met. Relief airdrops, in particular, permit reaching the humanitarian objective, while at the same time reducing the infringement of territorial sovereignty to the minimum necessary, and removing to a great extent the danger that third States use the declared humanitarian objective as a mere pretext to reach other less praiseworthy objectives. This study has demonstrated that the synergy between disaster prevention and response on the ground, and support provided by space activities, is not just the outcome of factual considerations. It is also mirrored in international law. Since State sovereignty certainly does not lie higher than the lowest perigee of a satellite, States are free to operate their orbital remote sensing and telecommunications satellites. However, from such premise one cannot infer that, regardless of the affected State’s consent, there is a right to remotely sense its territory, or to emit a telecommunication signal towards a receiver

Final Remarks

231

located within its territory. The legal analysis of such issues conducted herein has revealed that space activities can prove to be precious tools in disaster management. The collection and dissemination of sensed data is lawful under international law, regardless of the consent, and even against the will of the sensed State, thus sensed data plays a crucial role in raising the awareness of the ­affected State, civil society and the international community about the magnitude of the disaster and the potential humanitarian crisis that may arise. It is not exaggerated to say that, thanks to the freedom of data dissemination, remote sensing has forever eliminated the isolation of the world’s peoples, enhancing transparency globally. If a sensing State offers sensed data or telecommunication assistance to prevent an impending disaster or to manage a disaster that has already occurred, arguably the concerned State has the obligation to accept them whenever its own space resources are not sufficient to protect the people under its jurisdiction. This obligation can be conceived respectively as part of a more general duty to diligently prevent a disaster, and not arbitrarily refuse humanitarian assistance. In fact, as far as disaster prevention is concerned, a State that refuses the necessary sensed data and telecommunications assistance can hardly claim to have acted within diligence requisites, should a disaster occur. The same goes for disaster response. In the first part of this work, the obligation to protect human rights were shown to include an obligation to accept assistance in a situation of disaster as long as States are unable, with their own capacity, to fulfil the human rights obligations that rest upon them. This disputably includes a duty to accept sensed data and telecommunications assistance from the outside, whenever the State’s own space resources are insufficient to protect the people under its jurisdiction. States and international organisations may also provide remote sensing data, and emit humanitarian aid signals, to humanitarian organizations that are already working within the affected State. Indeed, “indirect” assistance does not amount to intervention in the internal affairs, provided it complies with the principles of humanity, neutrality, impartiality, and non-­discrimination. Thus, with reference to intangible communications and remote sensing, the concept of “porous” territorial sovereignty becomes once again relevant. This time ­“porosity” is due to the technical features of radio signals and electromagnetic waves which “ignore” State borders and, by their nature, spread r­ egardless of the consent of the State concerned. Worth of note that, far from being entitled to resort to jamming, itu Member States, including the affected State, shall grant disaster-related telecommunications priority over other communications and enhanced protection from harmful interference.

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The conclusions reached in this study might not be completely satisfactory as far as the identification of the duties of third States vis-à-vis the affected State is concerned. It was clarified that in international law, as it stands, the States are not assigned a duty to provide humanitarian assistance upon a request by the affected State. However, to deny a duty to assist upon request does not mean that third States are completely free to determine their conduct in delivering humanitarian assistance to the affected State. Third States shall expeditiously give due consideration to the request and inform the affected State of their reply. Secondly, third States, namely the transit States which are directly concerned, cannot obstruct, or make it more difficult to deliver humanitarian assistance. Nor can third States leave the population affected or potentially affected by the disaster to its fate. States which have remote sensing technologies at their disposal are subject to specific obligations related to the communication of information and the sharing of sensed data to the extent that they are relevant for disaster prevention and management. itu normative instruments grant priority and enhanced protection to communications concerning safety of life. On closer inspection, the history of international law in the field of disaster prevention and management is the history of the slow evolution beyond the specific situation of transboundary effects caused by man-made d­ isaster – where the main issues were the responsibility and liability of the State of origin, and the causal link between human activities and environmental damages was easily identifiable – towards the recognition of the true interconnectivity of environmental and humanitarian problems and their required solutions. It is emblematic that the scope of the 1927 Convention establishing an International Relief Union was limited to disasters occurring on Member-State territory, while disasters occurring in other countries were only included on the condition that they were likely to affect the territories of Member States.1 There has subsequently been a gradual shift of focus to a more encompassing objective, namely to help the State affected or likely to be affected to avoid, or at least minimize harm both to the environment and to human beings, irrespective of whether or not there are transboundary effects, and even regardless of whether or not such States are parties to the instrument in question. Think of the ctbto verification regime and the sharing of seismic data even among recipients outside the circle of signatories. This is certainly linked to the growing awareness that the direct and indirect effects of disaster are never strictly limited to the State(s) directly affected 1 Art. 3 (2), Convention establishing an International Relief Union.

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233

by it.2 In this regard the International Law Commission noted that, in recent decades, “safeguarding the ecological balance has come to be considered an ­“essential interest” of all States”.3 But it is not the sole reason. If a trend line is to be identified, it is the gradual abandonment of the traditional path of reciprocal obligations and the gradual striving towards the prevalence of the principle of solidarity over self-interest. It appears safe to say that nothing better describes the evolution of international law in the field of disaster prevention and relief than the gradual emergence of the principle of solidarity.4 The most mature and positive manifestation of this principle to date appears to be in space law. One may refer to the data policies of wmo and eumetsat, which contemplate the provision of disaster-related data even in favour of non-Member States. The Tampere Convention similarly requires cooperation to facilitate the sharing of information about natural hazards, health hazards, and disasters with third States other than its State Parties. Within the system established by the International Charter on Space and Major Disasters, sensed data are likewise provided to non-Member States. All these practices and regulations adopted and followed within and in conformity with the sound framework provided by the Outer Space Treaty might correctly be classified as integrating and implementing the rule enunciated by Article i of the Outer Space Treaty, that is, the common benefit space activities should be carried out for. This is nothing else than the principle of solidarity. At the same time, they represent a stride in the direction of a “common responsibility to prevent and to assist”, which appears preferable to justifying a non-centralised “right to assist”, as the latter may easily lead to abuse. The use of outer space to protect the whole of mankind from disasters is one of the best practical means of implementing the dictates of Article i of the Outer Space Treaty, namely to balance the freedom of exploration and use of outer space with the common benefit. The scientific and technological progress which has taken place in space further facilitates the implementation of 2 “A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive cooperation among Nations and action by international organizations in the common interest”. Stockholm Declaration, point 7, and principle xxiv. “The world is increasingly interdependent. All countries shall act in a new spirit of partnership to build a safer world based on common interests and shared responsibility to save human lives, since natural disasters do not r­ espect borders”. 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, p. 2. 3 Report of the ilc on the work of its 32nd Session, 1980, ilcy 1980, vol. ii, p. 39, par. 14. 4 Cf. M. Lachs, The Development and General Trends of International Law in our Time, op.cit., p. 73.

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the common benefit principle in practice. And yet, the use of space technologies in a disaster context still remains to be exploited to the extent it deserves. The objective in this realm should be to make use of the full potential of remote sensing and telecommunications and to effectively apply existing special norms pertaining to space activities when useful for disaster prevention and management.

Bibliography Akande, D. and E.-C. Gillard, Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict, International Law Studies, 2016. Akandji-Kombe, J.-F., Positive Obligations Under the European Convention on Human Rights. A Guide to the Implementation of the European Convention on Human Rights. Human Rights Handbooks n. 7, Strasbourg, 2007. Akehurst, M.B., International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, NYIL, 1985. Alessandrone-Gambardella, V., Proceedings of the 1st Colloquium on Space Law, The Hague, 1958. Antonopoulos, C., The NATO Military Action against the Federal Republic of Yugoslavia (Kosovo) and the International Law on the Use of Force, Revue hellénique de droit international, 1999. Arangio Ruiz, G., The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, Recueil des cours, 1972, vol. iii. Arangio-Ruiz, G., Le domaine réservé. L’organisation internationale et le rapport entre droit international et droit interne, Recueil des cours, 1990, vol. vi. Back Impallomeni, E., Spazio cosmico e corpi celesti nell’ordinamento internazionale, Padova, 1983. Back Impallomeni, E., Sfruttamento delle risorse della Luna e patrimonio comune dell’umanità, in Outer Space Law. New Developments and Prospects, Padova, 1994. Back Impallomeni, E., Telerilevamento, in Enciclopedia del diritto, vol. i, 1997. Balakista Reddy, V. and D. Banerjee, The Disaster Charter: Formulating a Common Space Policy for the Asian Region, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007. Ballarino, T., Diritto internazionale pubblico, Padova, 2014. Ballarino, T. and S. Busti, Diritto aeronautico e spaziale, Milano, 1988. Barber, R., The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, A Case Study, Journal of Conflict & Security Law, 2009. Bartolini, G., La definizione di disastro nel progetto di articoli della Commissione del diritto internazionale, RDI, 2015. Bartolini, G., Il Progetto di articoli della Commissione del Diritto Internazionale sulla “Protection of Persons in the Event of Disasters”, RDI, 2017. Baslar, K., The Concept of the Common Heritage of Mankind in International Law, The Hague, 1998 Beigbeder, Y., The Role and Status of International Humanitarian Volunteers and Organizations: The Right and Duty to Humanitarian Assistance, Dordrecht, 1991. BenkÖ, M. and K.-U. Schrogl, International Space Law in the Making. Current Issues in the UN Committee on the Peaceful Uses of Outer Space, Paris, 1993.

236

Bibliography

Benkö, M. and K.U. Schrogl, The UN Committee on the Peaceful Uses of Outer Space: Adoption of a Declaration on “Space Benefits” and other Recent Developments, ZLW, 1997. Benton Heath, J., Disaster, Relief and Neglect: the Duty to Accept Humanitarian Assistance and the Work of the International Law Commission, International Law and ­Politics, vol. 43, 2011. Benvenuti, P., Lo stato di necessità alla prova dei fatti, in M. Spinedi, A. Gianelli and M.L. Alaimo (Eds.), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti. Problemi e spunti di riflessione. Milano, 2006. Bettati, M., Un droit d’ingérence?, Revue générale de droit international public, 1991. Bettati, M., Trimestre du monde, 1992. Bettati, M., The Right of Humanitarian Intervention or the Right of Free Access to Victims?, Review of the International Commission of Jurists, vol. 49, No. 1, 1992. Bianchi, A., Environmental Harm Resulting from the Use of Nuclear Power Sources in Outer Space: Some Remarks on State Responsibility and Liability, in F. Francioni and T. Scovazzi, International Responsibility for Environmental Harm, London-­ Dordrecht-Boston, 1991. Bianchi, A., Il regime internazionale delle salvaguardie relative all’uso dell’energia nucleare nelle missioni spaziali, in F. Francioni and F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993. Binder, C. and C. Schreuer, Unjust Enrichment, MEPIL, 2017. Birnie, P., A. Boyle and C. Redgwell, International Law and the Environment, Oxford, 2009. Biscottini, G., La pratica del “consensus” nelle organizzazioni internazionali, Studi in onore di Giorgio Balladore Pallieri, Milan, 1978, ii. Blaine Sloan, F., The Binding Force of a “Recommendation” of the General Assembly of the United Nations, BYIL, 1948. Boisson de Chazournes, L. and L. Condorelli, La responsabilità di proteggere: una nuova veste per una nozione già acquisita, in I. Papanicolopulu and T. Scovazzi (Eds.), ­Conflitti armati e situazioni di emergenza: la risposta del diritto internazionale, ­Milano, 2007. Boisson de Chazournes, L., Responsibility to Protect: Reflecting Solidarity?, in R. Wolfrum and C. Kojima (Eds.), Solidarity: A Structural Principle of International Law, Heidelberg, 2010. Bonté, A., EUTELSAT: Freedom of Information “Regardless of Frontiers”, in Note de l’IFRI Governing the Geostationary Orbit - Orbital Slots and Spectrum Use in an Era of Interference (January 2014). Bothe, M., Legal and Non-Legal Norms – a Meaningful Distinction in International Relations, Netherlands Yearbook of International Law, 1980, vol. xi. Bothe, M., Relief Actions: The Position of the Recipient State, in F. Kalshoven (Ed.) Assisting the Victims of Armed Conflict and Other Disasters, Dordrecht-Boston-London, 1989.

Bibliography

237

Bothe, M., K.J. Partsch and W.A. Solf, New Rules for Victims of Armed Conflict: Commentary on the two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982. Bourbonnière, M. and L. Haeck, Canada’s Remote Sensing Program and Policies, in J. Baker, K. O’Connell and R. Williamson, Commercial Observation Satellites: at the Leading Edge of Global Transparency, Santa Monica, 2001. Boyle, A. and J. Harrison, Environmental Accidents, MEPIL, 2008. Böckstiegel, K.-H., Legal Implications of Commercial Space Activities, in Proceedings of the 24th Colloquium on the Law of Outer Space, Rome, 1981. Bollweg, H.G., GNSS-Liability by International or European Union Law?, 59 ZLW, 2010. Breau, S.C. and K.L.H. Samuel, Introduction, in S.C. Breau and K.L.H. Samuel (Eds.), Research Handbook on Disasters and International Law, Cheltenham-Northampton, 2016. Brown Scott, J., The Institute of International Law, AJIL, 1927. Brownlie, I., International Law and the Use of Force by States, Oxford, 1963. Brownlie, I., The Maintenance of International Peace and Security in Outer Space, BYIL, 1964. Brölmann, C., Deterritorialization in International Law: Moving Away from the Divide Between National and International Law, in J. Nijman and A. Nollkaemper, New ­Perspectives on the Divide Between National and International Law, Oxford, 2007. Burci, G.L. and J. Quirin, Ebola, WHO, and the United Nations: ­Convergence of Global Public Health and International Peace and Security, available at https://www.asil .org/insights/volume/18/issue/25/ebola-who-and-united-nations-convergenceglobal-public-health-and Burdese, A., Manuale di diritto privato romano, Torino, 2002. Cahin, G., La coutume internationale et les organisations internationales, Paris, 2001. Campanelli, D., Principle of solidarity, MEPIL, 2011. Capotorti, F., Sul valore della prassi applicativa dei trattati secondo la convenzione di Vienna, in Le droit international à l’heure de sa codification, études en l’honneur de Roberto Ago, Milano, 1987, I. Caron, D.D., Les aspects internationaux des catastrophes naturelles et industrielles / Académie de Droit International de La Haye = The International Aspects of Natural and Industrial Catastrophes / Hague Academy of International Law, in D.D. Caron and C. Leben (Eds.), 2001, The Hague. Caron, D.D., The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and Authority, AJIL, 2002. Caron, D.D., Preface, in D.D. Caron, M.J. Kelly and A. Telesetsky (Eds.), The International Law of Disaster Relief, Cambridge, 2014. Cassese, A., Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, EJIL, 1999. Catalano Sgrosso, G., Aspetti giuridici del telerilevamento, in Outer Space Law, New ­Developments and Prospects, Padua, 1994.

238

Bibliography

Catalano Sgrosso, G., Mise en œuvre des principes des Nations Unies de 1986 sur la télédétection. Le point de vue du juriste, in Droit, Télédétection et Environnement, Strasbourg, 1994. Catalano Sgrosso, G., Remote Sensing, Proceedings of 43rd Colloquium on the Law of Outer Space, Rio de Janeiro, 2000. Catalano Sgrosso, G., Natural Disaster Management, in Proceedings of ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asian Region, Bangalore, 2006. Chaumont, C., Les problèmes de droit international de l’espace extra-atmospherique, Paris, 1958–1959. Chaumont, C., Le droit de l’espace, Paris, 1960. Cheng, B., The United Nations and Outer Space, Current Legal Problems, 1961. Cheng, B., The Legal Regime of Airspace and Outer Space: the Boundary Problem Functionalism versus Spatialism: the Major Premises, AASL, vol. v, 1980. Cheng, B., The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use, JSL, 1983. Cheng, B., Studies in International Space Law, Oxford, 2004. Christakis, T., Unilatéralisme et multilatéralisme dans la lutte contre la terreur: l’exemple du terrorisme biologique et chimique, in K. Bannelier et at. (sous la direction de), Le droit international face au terrorism après le 11 septembre 2011, Paris, 2002. Christol, C.Q., Remote Sensing and International Law, AASL, 1980. Christol, C.Q., The Modern International Law of Outer Space, New York, 1982. Christol, C.Q., Remote Sensing in an Era of Global Warming, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007. Cocca, A.A., Reflexiones sobre el derecho interplanetario, in Revista de derecho internacional y ciencias diplomaticas, 1958, n. 13. Cogen, M., Membership, Associate Membership and Pre-accession Arrangements of CERN, ESO, ESA, and EUMETSAT, International Organizations Law Review, vol. 9, 2012. Cohen, R. and M. Bradley, Disasters and Displacement: Gaps in Protection, International Humanitarian Legal Studies, 2010. Colliard, C.A., Les principes régissant la télédétection spatiale, AFDI, 1986. Condorelli, L., L’imputation à l’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances, Recueil des cours, 1984, vol. vi. Condorelli, L., The International Humanitarian Fact-Finding Commission: an Obsolete Tool or a Useful Measure to Implement International Humanitarian Law?, International Review of the Red Cross 2001–84. Conetti, G., Nozione e delimitazione dello spazio cosmico, in F. Francioni and F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993. Conforti, B., In tema di responsabilità degli Stati per crimini internazionali, in Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago, vol. iii, Milan, 1987.

Bibliography

239

Conforti, B., Le Nazioni Unite, Padova, 1994. Conforti, B., Diritto internazionale, Napoli, 2002. Corten, O. and P. Klein, Droit d’ingérence ou obligation de réaction, Bruxelles, 1992. Corten, O., The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate, EJIL, 2005. Corten, O., Le droit contre la guerre. L’interdiction du recours à la force en droit international contemporain, Paris, 2008. Costas Trascasas, M., Access to the Territory of a Disaster-Affected State, in A. de Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012. Cot, J.P., La conduite subséquente des parties à un traité, in Revue générale de droit international public, 1966. Coursen-Neff, Z., Preventive Measures Pertaining to Unconventional Threats to the Peace such as Natural and Humanitarian Disasters, N.Y.U Journal of International Law and Politics, 1998. Courteix, S., Les “satellites bleus” au Service de la Paix et du Désarmament, GYIL, 1981. Courteix, S., Towards the Legal Recognition of a New Method of Proof for the Defense of the Environment: Satellite Images, Proceedings of the 37th Colloquium on the Law of Outer Space, Jerusalem, 1994. Creta, A., A (human) right to humanitarian assistance in disaster situations? Surveying Public International Law, in A. de Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012. Dalfen, M., The International Legislative Process: Direct Broadcasting and Remote Earth Sensing by Satellite Compared, The Canadian Yearbook of International Law, x, 1972. De Bellis, S., La caduta del satellite Cosmos 954 e la responsabilità dello Stato di lancio, RDI, 1981. De Guttry, A., Le rappresaglie non comportanti la coercizione militare nel diritto internazionale, Milano, 1985. De Man, P., The Commercial Exploitation of Outer Space and Celestial Bodies – A Functional Solution to the Natural Resource Challenge, Proceedings of the 61st Colloquium on the Law of Outer Space, Prague, 2010. Neto, O. De Oliveira Bittencourt, Defining the Limits of Outer Space for Regulatory Purposes, Heidelberg, New York, Dordrecht, London, 2015. De Saint-Lager, O., Aspects juridiques de la télédétection spatiale, in Droit, Télédétection et Environnement, Strasbourg, 1994. De Siervo, G., Actors, Activities, and Coordination in Emergencies, in A. De Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012. De Urioste, A., When Will Help Be On the Way? The Status of International Disaster ­Response Law, Tulane Journal of International and Comparative Law, 2006. De Vattel, E., Le droit des gens (ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains), London, 1758, II, 1. De Vitoria, F., De jure belli, 1539.

240

Bibliography

Den Dekker, G., The Law of Arms Control. International Supervision and Enforcement, The Hague, 2001. Diederiks-Verschoor, I.H.P., An Introduction to Space Law, Deventer-Boston, 1993 Diederiks-Verschoor, I.H.P., An Introduction to Air Law, 7th Edition, The Hague, 2001. Dinstein, Y., The Right to Humanitarian Assistance, in Naval War College Review 2000. Domestici-Met, M.-J., Aspects juridiques récents de l’assistance humanitaire, AFDI, 1989. Domestici-Met, M.-J., Comments, in UNESCO, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995. Du Pontavice, E., Evolution du droit spatial en lui-même et par rapport au droit aérien, RFDAE, 1983. Dupuy, P.M., La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle, Paris, 1976. Dupuy, P.M., Observations sur la pratique récente des “sanctions” de l’illicite, Revue ­générale de droit international public, 1983. Dupuy, P.M., A General Stocktaking of the Connections Between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility, EJIL, vol. 13, 2002. Dupuy, R.J., L’assistance humanitaire comme droit de l’homme contre la souveraineté de l’état, in F. Kalshoven (Ed.), Assisting the Victims of Armed Conflict and other Disasters, Dordrecht-Boston-London, 1989. Durante, F., La codificazione dei principi sull’esplorazione e l’utilizzazione dello spazio extra-atmosferico, in Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago, vol. ii, Milano, 1987. Eboli, V., La tutela dei diritti umani negli stati d’emergenza, Milano, 2010. Egeland, J., A. Harmer and A. Stoddard, To Stay and Deliver, Good Practice for Humanitarians in Complex Security Environments, Glossary, 2011. Evans, R., The Humanitarian Challenge: A Foreign Policy Perspective, African Security Review, 1997, 6–2. Falk, R.A., On the Quasi-Legislative Competence of the General Assembly, AJIL, 1966, vol. 60 n. 4. Fauchille, P., Régime juridique des aérostats, Rapport et projet de résolutions de M. Paul Fauchille, Premier Rapporteur, Annuaire de l’Institut de droit international, 1902. Fauchille, P., Rapport, Régime juridique des aérostats. Projet de convention sur le régime des aérostats en temps de paix, Annuaire de l’Institute de droit international, vol. v, 1906–1911. Faure, M.G., In the Aftermath of the Disaster: Liability and Compensation Mechanisms as Tools to Reduce Disaster Risks, Stanford Journal of International Law, 2016. Ferrazzani, M., Recent Legal Developments of GNSS in Europe, in Proceedings of the International Institute of Space Law, Cape Town, 2011. Ferris, E. and D. Petz, A Year of Living Dangerously: A Review of Natural Disasters in 2010, April 2011.

Bibliography

241

Fidler, D.P., Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law?, Melbourne Journal of International Law, 2005, Vol. vi. Fisher, D., The Right to Humanitarian Assistance, in W. Kälin, R.C. Williams, K. Koser and A. Solomon (Eds.), Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges, Studies in Transitional Legal Policy, n. 41, 2010. Fisher, D., The Future of International Disaster Response Law, GYIL, 2012. Fitzmaurice, G., The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points, BYIL, 1951. Fitzmaurice, G., The General Principles of International Law Considered from the Standpoint of the Rule of Law, Recueil des cours, 1957, vol. ii. Focarelli, C., Diritto internazionale I. Il Sistema degli Stati e i valori comuni dell’umanità, 2nd ed, Padova, 2012. Focarelli, C., Duty to Protect in Cases of Natural Disasters, MEPIL, 2013. Fois, P., L’accordo preliminare nel diritto internazionale, Milano, 1974. Fonteyne, J.L., The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the U.N. Charter, California Western International Law Journal, 1974. Forlati, S., Azioni dinanzi alla Corte Internazionale di Giustizia rispetto a violazioni di obblighi erga omnes, RDI, 2001. Francioni, F., Compensation for Nationalisation of Foreign Property: the Borderland Between Law and Equity, ICLQ, 1975, vol. 24. Freestone, D., The Road from Rio: International Environmental Law after the Earth Summit, Journal of Environmental Law, 1994. Frowein, J.A., Collective Enforcement of International Obligations, in Zeitschrift für ausländisches Öffentiliches Recht und VÖlkerrecht, 1987. Gabrynowicz, J.I., Expanding Global Remote Sensing Services, Proceedings of the Workshop on Space Law in the Twenty-First Century, 3rd UN Conference on the Peaceful Uses of Outer Space, A/Conf. 184/7, Vienna, 1999. Gabrynowicz, J.I., The UN Principles Relating to Remote Sensing of the Earth from Outer Space and Soft Law, in I. Marboe, Soft Law in Outer Space, The Function of Nonbinding Norms in International Space Law, Vienna, 2012. Gaja, G., Incidente a Chernobyl ed obbligo di informazione, RDI, 1986. Gaja, G., Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts, in J.H. Weiler and others (Eds.), International Crimes of States, Firenze, 1989. Gaja, G., General Principles of Law, MEPIL, 2013. Gal, G., Space Law, Budapest, 1969. Gangale, T., The Non Kármán Line: An Urban Legend of the Space Age, JSL, 2017. Gangale, T., How High the Sky?, Leiden-Boston, 2018.

242

Bibliography

Gathii, J.T., The Legal Status of the Doha Declaration on TRIPS and Public Health ­Under the Vienna Convention on the Law of Treaties, in 15 Harvard Journal of Law & Technology, 2002. Gaudrat, P. and P.H. Tuinder, The Legal Status of Remote Sensing Data: Issues of Access and Distribution, in G. Lafferranderie and D. Crowther, Outlook on Space Law over the Next 30 Years, The Hague/London/Boston, 1997. Gavshon, D., The Applicability of IHL in Mixed Situations of Disaster and Conflict, Journal of Conflict and Security Law, 2009. Gillard, E.C., The Law Regulating Cross-Border Relief Operations, International Review of the Red Cross, 2013. Glazer, J.H., The Law-Making Treaties of the International Telecommunication Union Through Time and in Space, Michigan Law Review, 1962. Goedhart, R.F.A., The Never Ending Dispute: Delimitation of Air Space and Outer Space, Cedex, 1996. Goedhuis, D., Some Trends in the Political and Legal Thinking on the Conquest of Space, in Netherlands International Law Review, 1962. Goedhuis, D., Some Observations on the Problem of the Definition and/or the Delimitation of Outer Space, AASL, 1977. Goedhuis, D., The Problems of the Frontiers of Outer Space and Air Space, Recueil des cours, 1982, vol. 1. Goodrich, L.M. and E. Hambro, Charter of the United Nations, 2nd Edition, Boston, 1949. Gorenflos, W., Die internationale Funkwellenverteilung als Rechtsproblem, in Jahrbuch für internationales Recht, 1958. Gorove, S., Earth Resources Survey Satellites and the Outer Space Treaty, JSL, 1973. Gorove, S., Sovereignty and the Law of Outer Space Re-examined, AASL, 1977. Gorove, S., International Space Law in Perspective – Some Major Issues, Trends and Alternatives, Recueil des Cours, 1983, vol. iii. Gorove, S., Aerospace object – Legal and Policy Issues for Air and Space Law, JSL, 1997. Gotlieb, A.E., The Impact of Technology on the Development of Contemporary International Law, Recueil des cours, 1981, vol. 1. Graefrath, B., Die Verpflichtung der Staaten zu effektiven Abrüstungsverhandlungen, in B. Wilhelmi (ed.), Beiträge zur Souveränität, Jena, 1984. Gros Espiell, H., Comments, in Le droit à l’assistance humanitaire, in UNESCO, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995. Gros Espiell, H., Les fondements juridiques du droit à l’assistance humanitaire, in UNESCO, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995. Gutierrez Espada, C., The Use of Nuclear Power Sources in Outer Space, The Legal SubCommittee Perspective, in Proceedings of the 27th Colloquium on the Law of Outer Space, Lausanne, 1984.

Bibliography

243

Haanappel, P.C., The Law and Policy of Air Space and Outer Space: A Comparative ­Approach, The Hague, 2003. Haley, A.G., Space Law and Government, New York, 1963. Handl, G., Territorial Sovereignty and the Problem of Transnational Pollution, AJIL, 1975. Hardcastle, R.J. and A.T.L. Chua, Humanitarian Assistance: Towards a Right of Access to Victims of Natural Disasters, International Review of the Red Cross, 1998, 1, available at https://www.icrc.org/eng/resources/documents/misc/57jpjd.htm. Harvey, P., Towards Good Humanitarian Government. The Role of the Affected State in Disaster Response, Humanitarian Policy Group, Report 29, 2009. Heath, J.B., Disasters, Relief and Neglect; the Duty to Accept Humanitarian Assistance and the Work of the ILC, available at http://nyujilp.org/wp-content/uploads/2013/ 02/43.2-Heath.pdf 2011. Heathcote, S., Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity, in J. Crawford, A. Pellet and S. Olleson (Eds.), Oxford Commentaries on International Law. The Law of International Responsibility, Oxford, 2010. Herdegen, M., Interpretation in International Law, MEPIL, 2013. Hilpold, P., Humanitarian intervention: Is there a need for a legal reappraisal?, EJIL, Vol. 12, 2001. Hingorani, C.R., La souveraineté sur l’espace exo-atmosphérique, Revue générale de l’air, 20, 1957. Hobe, S. and O. Kimminich, Einführung in das VÖlkerrecht, Tübingen, 2004. Hobe, S., Outer Space as the Province of Mankind – An Assessment of 40 Years of Development, in Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007. Hobe, S., “Art. I” in Hobe, Schmidt-Tedd, Schrogl (Eds.), Cologne Commentary on Space Law. Volume i: Outer Space Treaty, Köln, 2009. Holzgrefe, J.L. et R.O. Keohane (Eds.), Humanitarian Intervention: Ethnical, Legal and Political Dilemmas, Cambridge, 2003. Hurwitz, B., State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects, Dordrecht, 1992. Hyman, W.A., Magna Carta of Space, Amherst, 1966. Jakhu, R., The Legal Status of the Geostationary Orbit, AASL, 1982. Jakhu, R., International Law Governing the Acquisition and Dissemination of Satellite Imagery, JSL, 2003. Jakhu, R., Legal Issues Relating to the Global Public Interest in Outer Space, JSL, vol. 32, 2006. Jakovljevic, B., International Disaster Relief Law, Israel Yearbook on Human Rights, 2004, vol. 34. Jenks, C.W., International Law and Activities in Space, ICLQ, 1956.

244

Bibliography

Jennings, R.Y., International Law, Encyclopedia of Public International Law, (Ed.) R. Bernhardt, 1995, vol. ii. Jennings, R. and A. Watts (Eds.), Oppenheim’s International Law, 9th Edition, vol. i, Harlow, 1992. Jingjing, N., The Future of Uniform International Rules on GNSS Liability, in Proceedings of the International Institute of Space Law, Cape Town, 2011. Joeden, J., Die Funksendefreiheit der Staaten, in Jahrbuch für internationales Recht, 1954. Johnstone, I., The Plea of « Necessity » in International Legal Discourse: Humanitarian Intervention and Counter-Terrorism, Columbia Journal of Transnational Law, 2005. Kahn, D., Territory and Boundaries, in B. Fassbender and A. Peters (Eds.), The Oxford Handbook of the History of International Law, 2012. Kalshoven, F., Assistance to the Victims of Armed Conflicts and other Disasters, in F. Kalshoven (Ed.), Assisting the Victims of Armed Conflict and Other Disasters, Dordrecht-Boston-London, 1989. Kalshoven, F., The International Humanitarian Fact-Finding Commission: A Sleeping Beauty, Humanitäres Völkerrecht, 2002–4. Kant, I., Moral and Political Writings, C.J. Friedrich (Ed.), New York, 1949. Kayser, V., Launching Space Objects: Issues of Liability and Future Prospects, Dordrecht, 2001. Kelsen, H., The Law of the United Nations, London, 1951. Kelsen, H., Principles of International Law, 2nd Edition, New York-Chicago-San ­Francisco-Toronto-London, 1966. Kent, G., The Right to International Humanitarian Assistance, 2000. Kent, G., The Human Right to Disaster Mitigation and Relief, 2001, available at http:// www2.hawaii.edu/~kent/disaster.pdf. Kent, G., Rights and Obligations in International Humanitarian Assistance, Disaster Prevention and Management, vol. 23 No. 3, 2014. Kiss, A., L’accident de Tchernobyl et ses conséquences au point de vue du droit international, AFDI, 1986. Kiss, C.A., Débats, in Droit, Télédétection et Environnement, Strasbourg, 1994. Kiss, A. and J-P. Beurier, Droit international de l’environnement, 3rd edition, 2004. Kohen, M.G., L’emploi de la force et la crise du Kosovo: vers un nouveau désordre juridique international, Revue belge de droit international, 1999. Kolb, R., La bonne foi en droit international public. Contribution à l’étude des principes généraux de droit, Geneva, 2000. Kolb, R., Note on humanitarian intervention, Revue internationale de la Croix-Rouge, Vol. 85, N° 849, 2003. Kolb, R., De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003, available at https:// www.icrc.org/fre/assets/files/other/irrc_856_kolb.pdf.

Bibliography

245

Konstantinov, E., Some Aspects of the Spatial and Functional Delimitation between International Air and Space Law, Proceedings of the 26th Colloquium on the Law of Outer Space, Budapest, 1983. Koroma, A.G., Humanitarian intervention and contemporary international law, Revue Suisse de droit international et de droit européen, vol. 5, 1995. Koroma, A.G., Solidarity: Evidence of an Emerging International Legal Principle, in Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (Eds.), Coexistence, Cooperation and Solidarity, vol. i, Leiden-Boston, 2012. Kramer, G.M., The First Amendment Viewed from Space: National Security Versus Freedom of the Press, AASL, 1989. Kuokkanen, T., International Law and the Environment: Variations on a Theme, The Hague, London, New York, 2002. Kuskuvelis, I.I., La légalité coutumière de l’observation spatiale militaire, RFDAE, 1990. Kussbach, E., The International humanitarian fact-finding commission, 43 ICLQ 1994–1. Lachs, M., The International Law of Outer Space, Recueil des cours, 1964, vol. iii. Lachs, M., The Law of Outer Space, Leiden, 1972. Lachs, M., The Development and General Trends of International Law in our Time, Recueil des cours, 1980, vol. iv. Lachs, M., Views from the Bench: Thoughts on Science, Technology and World Law, AJIL, 1992. Lachs, M., Freedoms of the Air – the Way to Outer Space, in T. Masson-Zwaan and P. Mendes de Leon (Eds.), Air and Space Law: De Lege Ferenda – Essays in Honour of Henri A. Wassenbergh, Dordrecht, 1992. Lafferranderie, G. and P.H. Tuinder, The role of ESA in the Evolution of Space Law, JSL, 1994. Larsen, P.B., Limited Right of Access to Remote Sensing Data for the Prevention and Mitigation of Disasters, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007. Lattanzi, F., Garanzie dei diritti dell’uomo nel diritto internazionale generale, Milano, 1983. Lattanzi, F., Assistenza umanitaria e intervento di umanità, Torino, 1997. Lauta, K.C., Human Rights and Natural Disasters, in S.C. Breau and K.L.H. Samuel (Eds.), Research Handbook on Disasters and International Law, CheltenhamNorthampton, 2016. Leanza, U., Prefazione, in F. Pocar, G. Venturini and M. Pedrazzi (Eds.), Gli accordi bilaterali dell’Italia in materia spaziale, Milano, 1999. Leben, C., Les aspects internationaux des catastrophes naturelles et industrielles / ­Académie de Droit International de La Haye = The International Aspects of Natural and Industrial Catastrophes / Hague Academy of International Law, in D.D. Caron and C. Leben (Eds.), The Hague, 1995.

246

Bibliography

Lee, R.J. and S.R. Freeland, The Crystallisation of General Assembly Space Declarations into Customary International Law, Proceedings of the 46th Colloquium on the Law of Outer Space, Bremen, 2003. Lepp, N., Disaster Relief Politics complicate South Asia Effort, The Dominion, 3 January 2005, available at http://www.dominionpaper.ca/international_news/2005/01/03/ disaster_r.html. Liakopoulos, D., L’ingerenza umanitaria nel diritto internazionale e comunitario, ­Padova, 2007. Lillich, R.B., Humanitarian Intervention Through the United Nations: Towards the Development of Criteria, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 53, 1993. Linderfalk, U., On the Interpreation of Treaties, Dordrecht, 2007. Lipson, L. and N. Katzenbach, Report to the National Aeronautics and Space Administration on the Law of Outer Space, American Bar Foundation. Legal Problems, 1961. Lo, C., Treaty Interpretation Under the Vienna Convention on the Law of Treaties, Singapore, 2017. Loukakis, A., Product Liability Ramifications for Erroneous GNSS Signals: Is an Alternative Approach Possible?, in Proceedings of the 56th Colloquium on the Law of Outer Space, Beijing, 2013. Loupajarvi, K., Is there an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons under International Law?, International Journal of Refugee Law, 15, 2003. Macalister Smith, P., International Humanitarian Assistance. Disaster Relief Actions in International Law and Organization, Dordrecht, 1985. Macalister Smith, P., The International Relief Union – Reflections on the Convention Establishing an International Relief Union of July 12, 1927, Legal History Review, 1986. Macalister Smith, P., The Right to Humanitarian Assistance in International Law, Revue de droit international de science diplomatiques et politiques, 1988. Macalister Smith, P., Rights and Duties of the Agencies Involved in Providing Humanitarian Assistance and their Personnel in Armed Conflict, in F. Kalshoven (Ed.), Assisting the Victims of Armed Conflict and Other Disasters, Dordrecht-Boston-London, 1989. Malanczuk, P., Freedom of Information and Communication – Recent Developments in the Helsinki Process (Conference on Security and Co-operation in Europe), in A.C. Kiss and J.G. Lammers, Communications et droit international, 1991. Malanczuk, P., Humanitarian Intervention and Legitimacy of the Use of Force, Amsterdam, 1993. Malanczuk, P., Space Law as a Branch of International Law, in L.A.N.M. Barnhoorn and K.C. Wellens (Eds.), Diversity in Secondary Rules and The Unity of International Law, The Hague-Boston-London, 1995.

Bibliography

247

Malintoppi, A., L’art. 56 della Carta delle Nazioni Unite, RDI, 1961. Mani, V.S., Towards an International Disaster Response Law: Quest for a Role for International Space Law, in ISRO-IISL Space Law Conference 2005 “Bringing space benefits to the Asian region”, Bangalore, 2005. Mansour, A.B., Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Consent, Oxford Commentary on International Law. The Law of International Responsibility, in J. Crawford, A. Pellet and S. Olleson (Eds.), Oxford, 2010. Manzini, P. and A. Masutti, An International Civil Liability Regime for the Galileo Services: A Proposal, xxxiii Air & Space Law, 2008. Marcelli, F., Il regime internazionale della ricerca scientifica, tecnologica e spaziale, CNR, Roma, 1996. Marchisio, S., Gli atti di Rio nel diritto internazionale, RDI, 1992. Marchisio, S., Remote Sensing for Sustainable Development in International Law, Outlook on Space Law over the Next 30 Years, The Hague/London/Boston, 1997. Marchisio, S., Comment on the Discussion Paper on Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery Presented by Mr. K. Sridhara Murthi, Proceedings of the Space Law Conference 2006 Asian Cooperation in Space Activities. A Common Approach to Legal Matters, Bangkok, 2006. Marchisio, S., Il diritto internazionale dell’ambiente, in G. Cordini, P. Fois and S. Marchisio (Eds.), Diritto ambientale, 2nd edition, Torino, 2008. Marchisio, S., The ITU Regulatory System: A Self-Contained Regime or a Part of International Law?, 74 in Note de l’IFRI Governing the Geostationary Orbit - Orbital Slots and Spectrum Use in an Era of Interference (January 2014), online: Institut français des relations internationales . Marcoff, M.G., Traité de droit international public de l’espace, Fribourg-Genève-ParisNew York, 1973. Marcoff, M.G., Disarmament and “Peaceful Purposes” Provisions in the 1967 Outer Space Treaty, JSL, vol. 4, n. 1, 1976. Marcoff, M.G., Sources du droit international de l’espace, Recueil des Cours, Vol. 168, 1980. Martini, R., I principi di diritto internazionale applicabili al telerilevamento, in F. Francioni and F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993. Koskenniemi, Martti, General Principles: Reflections on Constructivist Thinking in International Law, in Martti Koskenniemi (Ed.), Sources of International Law, London, 2000. Masson-Zwaan, T.L., The Influence of the Achievements and Failures of the Past on the Future of Outer Space Law, in T.L. Masson Zwaan (Ed.), Space Law: Views of the Future, Deventer, 1988.

248

Bibliography

Matte, N.M., Droit aérospatial, Paris, 1969. Matte, N.M., Aerospace Law: Telecommunications Satellites, Recueil des cours, 1980. Matte, N.M., Droit aérospatial. Les télécommunications par satellites, Montreal, 1982. McDouglas, M.S., H.D. Lasswell and I.A. Vlasic, Law and Public Order in Space, New Haven-London, 1963. McIntyre, O., Envinronmental Protection of International Watercourses under International Law, New York, 2016. Meier, O., CTBTO Releases Test Ban Monitoring Data for Tsunami Warning, Article published on Arms Control Association (https://www.armscontrol.org/act/2005_04/ CTBTO). Miele, A., L’indipendenza degli Stati, Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Napoli, 2004. Migliorino, L., Cooperazione internazionale e trasferimento della tecnologia spaziale, in F. Francioni and F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993. Milano, E., The Deterritorialization of International Law, vol. 2. 2013, in Esil Reflections, available at http://www.esil-sedi.eu/node/311. Mishra, S. and T. Pavlasek, On the Lack of Physical Bases for defining a Boundary between Air Space and Outer Space, AASL, 1982. Mokhtar, A., Will This Mummification Saga Come to an End? The International Humanitarian Fact-Finding Commission: Art. 90 of Protocol 1, Penn State International Law Review 2003–22. Monaco, R., Sovranità statale e spazio superatmosferico, RDI, 1958. Monserrat Filho, J., Commentary Paper on “Remote Sensing Images and GI Information: Policy and Legal Perspectives”, ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asian Region, Bangalore, 2006. Moreno, A., La Commercialisation des images satellites. Approche juridique, Travaux du Centre de recherche sur le droit des marchés et des investissements internationaux, Université de Bourgogne CNRS, Volume 18, 1999. Mosler, H., The International Society as a Legal Community, Germantown, 1980. Mullerson, R.A., Agora: New Thinking by Soviet Scholars. Sources of International Law: New Tendencies in Soviet Thinking, AJIL, 1989. Mullerson, R.A., Sources of International Law: New Tendencies in Soviet Thinking, AJIL, 1989. Müller, R. and M. Müller, Co-operation as a Basic Principle of Legal Regimes for Areas Beyond National Sovereignty – with Special Regard to Outer Space Law, GYIL, 1988. Münch, M., Comments on the 1968 Draft Convention on the Law of Treaties. Non-binding Agreements, Zeitschrift für ausländisches Oeffentiches Recht und Völkerrecht, 1969. Murphy, S.D., Humanitarian Intervention: The United Nations in an Evolving World ­Order, Philadelphia, 1996. Murphy, S.D., Protection of Persons in the Event of Disasters and Other Topics: The SixtyEighth Session of the International Law Commission, AJIL, 2016.

Bibliography

249

Nawinne, R.M.R.B., The Principles of State Responsibility and Humanitarian Assistance in the Context of Disaster Management, Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007. Nifosi-Sutton, I., Contour of Disaster Victims’ Rights to a Remedy and Reparation Under International Human Rights Law, in A. De Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012. O’Donnell, T. and C. Allan, An Offer You Cannot Refuse? Natural Disasters, the Politics of Aid Refusal and Potential Legal Implications, Amsterdam Law Forum, 2013. O’ Donnell, T. and C. Allan, A Duty of Solidarity? The International Law Commission’s Draft Articles and the Right to Offer Assistance in Disasters, in S.C. Breau and K.L.H. Samuel (Eds.), Research Handbook on Disasters and International Law, ­Cheltenham-Northampton, 2016. Oeberg, M.D., The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ, EJIL, 2005. Okowa, P.N., Procedural Obligations in International Environmental Agreements, BYIL, 1996. Okowa, P.N., Principle 18. Notification and Assistance in Case of Emergency, in J.E. ­Viñuales (Ed.), The Rio Declaration on Environment and Development: A Commentary, Oxford, 2015. Oppenheim and Lauterpacht, International Law, 8th Edition, 1955, vol. i. Oraà, J., Human Rights in States of Emergency in International Law, Oxford, 1992; V. Eboli, La tutela dei diritti umani negli stati d’emergenza, Milano, 2010. Orford, A., Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law, Cambridge, 2003. Pauwelyn, J., A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature, EJIL, 2003. Penent, G., Controlling Information Flow: A Political History of Jamming, in Note de l’IFRI Governing the Geostationary Orbit - Orbital Slots and Spectrum Use in an Era of Interference (January 2014). Pépin, E., Space Penetration, Proceedings of the American Society of International Law, 1958. Perek, L., Scientific Criteria for the Delimitation of Outer Space, JSL, 1977. Perek, L., The 1976 Registration Convention, Proceedings of the 41st Colloquium on the Law of Outer Space, Melbourne, 1998. Peyrefitte, L., The Legal Regime of Remote Sensing of the Earth from Space, Proceedings of the 34th Colloquium on the Law of Outer Space, Montreal, 1991. Peyrefitte, L., Le régime juridique de la télédétection spatiale, RFDAE, 1991, n. 2. Picone, P., La distinzione tra norme internazionali di ‘jus cogens’ e norme che producono obblighi ‘erga omnes’, RDI, 2008. Pietrobon, A., Il sinallagma negli accordi internazionali, Padova, 1999.

250

Bibliography

Pietrobon, A., Nuclear Powers’ Disarmament Obligation under the Treaty on the NonProliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions between Soft Law and Hard Law, Leiden Journal of International Law, Vol. 27, Issue 1, 2014. Pietrobon, A., Il giudizio nell’arbitrato fra Stati, 2016, Napoli. Pisillo-Mazzechi, R., Forms of International Responsibility for Environmental Harm, in F. Francioni and T. Scovazzi (Eds.), International Responsibility for Environmental Harm, London-Dordrecht-Boston, 1991. Pisillo Mazzeschi, R., Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme, Recueil des cours, vol. 1, 2008. Pocar, F., La codificazione del diritto dello spazio ad opera delle Nazioni Unite, in F. Francioni and F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993. Pocar, F., The Normative Role of UNCOPUOS, Outlook on Space Law over the Next 30 Years, The Hague/London/Boston, 1997. Pocar, F., Voli aerospaziali e delimitazione dello spazio, in F. Durante (Ed.) La regolamentazione giuridica dei mezzi di trasporto aero-spaziali, Napoli, 2000. Poli, L., La risoluzione n. 2177 (2014) del Consiglio di sicurezza delle Nazioni Unite e la qualificazione dell’epidemia di ebola come minaccia alla pace ed alla sicurezza internazionale, Diritti umani e diritto internazionale, vol. 9, 2015. Polter, D.M., Remote Sensing and State Sovereignty, JSL, 1976. Pozzobon, O., C. Wullems and K. Kubik, Secure Tracking Using Trusted GNSS Receivers and Galileo Authentication Services, Journal of Global Positioning Systems, 2004. Quadri, R., Droit international cosmique, Recueil des Cours, 1959, vol. 98. Quadri, R., Diritto internazionale pubblico, Napoli, 1968. He Qizhi, Towards a New Legal Regime for the Use of Nuclear Power Sources in Outer Space, JSL, 1986. Raby, J., The State of Necessity and the Use of Force to Protect Nationals, in Canadian Yearbook of International Law, 1988. Ragazzi, M., The Concept of International Obligations Erga Omnes, Oxford, 1997. Rapp, L., When France Puts Its Own Stamp on the Space Law Landscape: Comments on Act no. 2008–518 of 3 June 2008 Relative to Space Operations, Air and Space Law, 2009. Ravillon, L., Les telecommunications par satellite. Aspects juridiques, Dijon, 1997. Recchia, S., Authorizing Humanitarian Intervention: A Five-Point Defence of Existing Multilateral Procedures, Review of International Studies, vol. 43. Rodenhäuser, T. and G. Giacca, The International Humanitarian Law Framework for Humanitarian Relief During Armed Conflicts and Complex Emergencies, in S.C. Breau and K.L.H. Samuel (Eds.), Research Handbook on Disasters and International Law, Cheltenham-Northampton, 2016. Rodley, N., Interventions des partecipants, in UNESCO, Le droit à l’assistance humanitaire: actes du Colloque international organisé par l’Unesco, 1995.

Bibliography

251

Ronzitti, N., Problemi giuridici sollevati dalle iniziative in materia di disarmo spaziale, in F. Francioni and F. Pocar (Eds.), Il regime internazionale dello spazio, Milano, 1993. Ronzitti, N., Diritto internazionale dei conflitti armati, Torino, 2006. Ronzitti, N., Introduzione al diritto internazionale, 3rd Edition, Torino, 2009. Rosenfield, S.B., Where Air Space Ends and Outer Space Begins, JSL, 1979. Ruiz Fabri, H., Immatériel, territorialité, et Etat, in Archives de philosophie du droit, 1999. Ryngaert, C., Humanitarian Assistance and the Conundrum of Consent: A Legal Perspective, Amsterdam Law Forum, 2013. Sachariew, K., State Responsibility for Multilateral Treaty Violations: Identifying the ­“Injured State” and its Legal Status, Netherlands International Law Review, 1988. Saechao, T.R., Natural Disasters and the Responsibility to Protect: From Chaos to Clarity, Brooklyn Journal of International Law, 2007. Salerno, F., Diritto internazionale. Principi e norme, 2nd edition, Padova, 2011. Salmon, J. (ed.), Dictionnaire de droit international public, Bruxelles, 2001. Samuels, J.W., The Relevance of International Law in the Prevention and Mitigation of Natural Disasters, in L.H. Stephens and S.J. Green (Eds.), Disaster Assistance. Appraisal, Reform and New Approaches, New York, 1979. Sandoz, Y., C. Swinarski and B. Zimmermann, (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, 1987. Sands, P., Chernobyl: Law and Communication: Transboundary Nuclear Air Pollution; The Legal Materials, Cambridge, 1988. Sands, P., J. Peel, A. Fabra and R. Mackenzie, Principles of International Environmental Law, Cambridge, 2012. Sapienza, R., Il principio del non intervento negli affari interni: contributo allo studio della tutela giuridica internazionale della potestà di governo, Milano, 1990. Sauer, E., Die völkerrechtichle Bedeutung der Sputniks, Jahrbuch für internationales Recht, 1959. Schermers, H.G., N.M. Blokker, International Institutional Law, 5th revised edition, Boston-Leiden, 2011. Schindler, D., Humanitarian Assistance, Humanitarian Interference and International Law, in R.S.J. MacDonald, (Ed.), Essays in Honour of Wang Tieya, Dordrecht-BostonLondon, 1993. Schindler, D., Protection des droits de l’homme en cas de désintégration ou d’incapacité de l’autorité étatique, Manuscrit des conférences données à l’Institut international des Droits de l’Homme à Strasbourg du 17 au 21 juillet 1995. Schönborn, W., La nature juridique du territoire, Recueil des cours, 1929. Schuster, F., H. Pressler, Deutschland und der Kopenhagener Rundfunkplan, in Jahrbuch für internationales Recht, 1955.

252

Bibliography

Schwebel, S.M., The Effect of Resolutions of the United Nations General Assembly on Customary International Law, Proceedings of the 73rd Annual Meeting of the American Society of International Law, 1979. Schwebel, S.M., Justice in International Law. Selected Writings, Cambridge, 1994. Seara Vázquez, M., Cosmic International Law, Detroit, 1965. Sherman, L., D. De Lorenzo and P. Enge, Signal Authentication. A Secure Civil GNSS for Today, InsideGNSS (September-October 2009), online: InsideGNSS . Simma, B. and D. Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, EJIL, 2006. Sivakumaran, S., Arbitrary Withholding of Consent to Humanitarian Assistance in Situations of Disaster, ICLQ, vol. 64, 2015. Skogly, S., Beyond National Borders: States’ Human Rights Obligations in International Cooperation, Antwerp, 2006. Smith, M.L., International Regulation of Satellite Communication, Dordrecht, 1990. Smith, M.L., The Current Challenges of Liability for Loss of Satellite-Based Services, in Proceedings of the 56th Colloquium on the Law of Outer Space, Beijing, 2013. Sohn, L.B., The Stockholm Declaration on the Human Environment, The Harvard International Law Journal, 1973, vol. 14, n. 3. Sommario, E., Derogation from Human Rights Treaties in Situations of Natural or ManMade Disasters, in A. De Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012. Spieker, H., The Right to Give and Receive Humanitarian Assistance, in H.J. Heintze and A. Zwitter (Eds.) International Law and Humanitarian Assistance, Berlin, 2011. Staelin, D.H. and J. Kerekes, Remote Sensing Capabilities, in D.G. Dallmeyer and K. Tsipis (Eds.), Heaven and Earth: Civilian Uses of Near Earth Space, 1996, The Hague. Stoffels, A., Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps, International Review of the Red Cross, 2004. Supancana, I.B.R., International Disaster Response Law, Rules and Principles (IDRL) Programme of the International Federation of Red Cross and Red Crescent Societies (IFRC), Proceedings of the 50th Colloquium on the Law of Outer Space, Hyderabad, 2007. Tavernier, P., Les déclarations du Président du Conseil de Sécurité, AFDI, vol. 39, 1993. Telec, A., Challenges to State Sovereignty in the Provision of International Natural Disaster Relief, in D.D. Caron, M.J. Kelly and A. Telesetsky (Eds.) The International Law of Disaster Relief, Cambridge, 2014. Telesetsky, A., Overlapping International Disaster Law Approaches with International Environmental Law Regimes to Address Latent Ecological Disaster, Stanford Journal of International Law, 2016. Thirlway, H., The Law and Procedure of the International Court of Justice 1960–1989, BYIL 67, 1996.

Bibliography

253

Toman, J., Towards a Disaster Relief Law. Legal Aspects of Disaster Relief Operations, in F. Kalshoven (Ed.), Assisting the Victims of Armed Conflict and Other Disasters, Dordrecht-Boston-London, 1989. Toman, J., International Disaster Response Law: Treaties, Principles, Regulations and Remaining Gaps, 2006, available at Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=1312787. Tomuschat, C., International Law: Ensuring the Survival of Mankind on the Eve of a New Century, Recueil des cours, 1999, vol. 281. Tomuschat, C., Human Rights Committee, MEPIL, 2010. Treves, T., Une nouvelle technique dans la codification du droit international: la comité de rédaction de la conférence sur le droit de la mer, AFDI, 27, 1981. Treves, T., Diritto internazionale. Problemi fondamentali, Milano, 2005. Tronchetti, F., The Exploitation of Natural Resources of the Moon and other Celestial Bodies. A Proposal for a Legal Regime, Leiden-Boston, 2009. Tronchetti, F., Legal Aspects of Satellite Remote Sensing, in F.G. von Der Dunk and F. Tronchetti (Eds.), Handbook of Space Law, Cheltenham-Northampton, 2015. Urbinati, S., L’epidemia di Ebola in Africa occidentale come minaccia alla pace e alla ­sicurezza internazionali: quale ruolo per il Consiglio di Sicurezza?, RDI, 2016. van Damme, I., Treaty Interpretation by the WTO Appellate Body, Oxford, 2009. Venturini, G., Servizi di telecomunicazione e concorrenza nel diritto internazionale e ­comunitario, 2nd edition, Torino, 1999. Venturini, G., International Disaster Response Law in Relation to Other Branches of International Law, in A. De Guttry and others (Eds.), International Disaster Response Law, The Hague, 2012. Verdross, A., Völkerrecht, Wien, 1955, 3rd edition. Vereshchetin, V.S., On the Principle of State Sovereignty in International Space Law, AASL, 1977. Vereschetin, V.S. and G.M. Danilenko, Custom as a Source of International Law of Outer Space, JSL, vol. 13, 1985. Vezzani, S., Emergenze sanitarie globali e diritto internazionale: l’accesso agli agenti patogeni e alle relative sequenze genetiche, available at http://www.sidiblog.org/ 2016/05/27/emergenze-sanitarie-globali-e-diritto-internazionale-laccesso-agliagenti-patogeni-e-alle-relative-sequenze-genetiche/. Villalpando, S., L’émergence de la communauté internationale dans la responsabilité des Etats, Paris, 2005. Villani, U., La guerra del Kosovo e il c.d. diritto di intervento umanitario, in U. Villani (Ed.) La protezione internazionale dei diritti umani, Roma, 2006. Virally, M.M., International Texts of Legal Import in the Mutual Relations of their Authors and Texts Devoid of Such Import (29 August 1983), online: l’Institut de Droit international .

254

Bibliography

Vitta, E., Le azioni internazionali di soccorso umanitario, in Studi in onore di Giorgio Balladore Pallieri, vol. ii, Milano, 1978. Vlasic, I.A., Remote Sensing of the Earth by Satellites, in N. Jasentuliyana and R.S.K. Lee (Eds.), Manual on Space Law, Oceana, 1979. Vogler, J., The Global Commons. A Regime Analysis, 1st ed., Chichester, 1995. von der Dunk, F.G., United Nations Principles on Remote Sensing and the User, in R. Harris (Ed.), Earth Observation Data Policy and Europe, Lisse, Abingdon, Exton, Tokyo, 2002. von der Dunk, F.G., Non-Discriminatory Data Dissemination in Practice, in R. Harris (Ed.), Earth Observation Data Policy and Europe, Lisse, Abingdon, Exton, Tokyo, 2002. von der Dunk, F.G., The Sky is the Limit – But Where does it End?, Proceedings of the 48th Colloquium on the Law of Outer Space, Fukuoka, 2005. von der Dunk, F.G., European Satellite Earth Observation: Law, Regulations, Policies, Projects, and Programmes, Creighton Law Review, vol. 42 n. 3, 2009. von der Dunk, F.G., Outer Space Law Principles and Privacy, in R. Purdy & D. Leung (Eds.), Evidence from Earth Observation Satellites, Leiden, 2012. von der Dunk, F.G., International Space Law, in F.G. von der Dunk and F. Tronchetti (Eds.), Handbook of Space Law, Cheltenham-Northampton, 2015. von der Dunk, F.G., Problems in Establishing a Legal Boundary Between Air Space and Space, Proceedings of the 1st Colloquium on the Law of Outer Space, The Hague, 1958. von der Dunk, F.G., Staatshoheit und Weltraum, Europa-Archiv, 1959. Vukas, B., Humanitarian Assistance in Cases of Emergency, MEPIL, 2013. Wadegaonkar, D., Orbit of Space Law, London, 1984. Ward, C., Space Law as a Way to World Peace. Legal Problems, 1961. Weckel, P., Le Chapitre vii de la Charte et son application par le Conseil de sécurité, AFDI, 1991. Weil, P., Le droit international en quête de son identité, Recueil des cours, 1992, vol. vi. Widdows, K., What is an Agreement in International Law, BYIL, 1979. Williams, M., The UN Principles on Remote Sensing Today, Proceedings of the 48th Colloquium on the Law of Outer Space, Fukuoka, 2005. Williams, M., Space Law and Remote Sensing Activities, in Proceedings of the United Nations/Brazil Workshop on Space Law, 2005. Wins-Seemann, E., Das Satellitendatensicherheitsgesetz aus industrieller SichtAngemessener Rahmen fuer die Kommerzielle Nutzung von weltraumgestuetzten Fernerkundungssystemen?, ZLW 1, 2008. Winter, G., Access of the Public to Environmental Data from Remote Sensing, in Droit, Télédétection et Environnement, Strasbourg, 1994. Wolfrum, R., Purposes and Principles of International Environmental Law, GYIL, 1990.

Bibliography

255

Wood, M.C., The Interpretation of Security Council Resolutions, Max Planck Yearbook of United Nations Law, 1998, vol. ii. Wright, Q., National Courts and Human Rights –The Fujii Case, AJIL, 1951. Yokaris, A., Le droit international public de l’espace. Ses rapports avec le droit international public général, RFDAE, 1951. Zagato, L., L’innovazione militare nella competizione economica fra sistemi, in M.L. Picchio Forlati, Controllo degli armamenti e lotta al terrorismo tra Nazioni Unite, NATO e Unione Europea, Padova, 2007. Zamuner, E., I trattati che creano regimi obiettivi nel diritto internazionale, Comunicazioni e studi dell’Istituto di diritto internazionale dell’Università di Milano, 2007, xxiii. Zannoni, D., The Radio-Spectrum: International Regulation and Current Challenges, AASL 2015. Zhao, Y., Disaster Management and the Tampere Convention, Journal of East Asia and International Law, 2008. Zhukov, G., Une expérience historique: la convention de Moscou de 1978 sur le transfert de l’utilisation des données de téléobservation de la Terre à partir de l’espace, in Droit, télédétection et environnement, Strasbourg, 1994. Ziccardi, P., Règles d’organisation et règles de conduite en droit international. Le droit commun et les ordres juridiques, Recueil des cours, 1976, vol. iv. Zunes, S., Bush Administration Refuses Cuban Offer of Medical Assistance Following Katrina. Did Arrogance Cost Lives?, Foreign Policy in Focus, 19 October 2005, available at http://fpif.org/bush_administration_refuses_cuban_offer_of_medical_ assistance_following_katrina/ zur Hausen, H., Aviation, Telecommunications, and Frequencies: Will LEO Satellite Services Obstruct Planned GNSS? XXII.3 Air & Space Law, 1997.

Jurisprudence

Permanent Court of International Justice



International Court of Justice

B09, Monastery of Saint-Naoum, Advisory Opinion of 4 September 1924.

Corfu Channel case (Merits), Judgment of 9 April 1949, ICJ Reports 1949, p. 4. Separate Opinion of Judge Lauterpacht in the Advisory Opinion Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, 7 June 1955, ICJ Reports 1955, p. 67. South West Africa cases, Second Phase, Judgment of 18 July 1966, ICJ Reports 1966, p. 6. North Sea Continental Shelf Case (Germany v. Denmark, Germany v. The Netherlands), Judgement of 20 February 1969, ICJ Reports 1969, p. 3.

256

Bibliography

Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970, ICJ Reports 1970, p. 3. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, p. 16. Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland) Jurisdiction of the Court, Judgment of 2 February 1973, ICJ Reports 1973, p. 3. Nuclear Tests case (Australia v. France), Judgement of 20 December 1974, ICJ Reports 1974, p. 253. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 14. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, ICJ Reports 1994. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 7. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, I.C.J. Reports 1998, p. 432. Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 December 1999, ICJ Reports 1999, p. 1045. LaGrand (Germany v. United States of America), Judgment of 27 June 2001, ICJ Reports 2001, p. 466. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, ICJ Reports 2002, p. 625. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement of 6 November 2003, ICJ Reports 2003, p. 161. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, ICJ Reports 2004, p. 12. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement of 19 December 2005, ICJ Reports 2005, p. 168. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, Judgement of 26 February 2007, p. 43. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, ICJ Reports 2009, p. 213.

Bibliography

257

Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgement of 20 April 2010, ICJ Reports 2010, p. 14. Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia Federation), Preliminary Objections, Judgement of 1 April 2011, ICJ Reports 2011, p. 70. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014, ICJ Reports 2014, p. 226. Certain Activities Carried out by Nicaragua in the Boarder Area; Construction of a Road in Costa Rica along the San Juan River (Costa Rica v. Nicaragua), Judgement of 16 December 2015, ICJ Reports 2015, p. 665.



Arbitral Tribunals

Gentini Case, 1903, in RIAA x, pp. 551–561. Island of Palmas case (Netherlands, U.S.A.), 4 April 1928, in RIAA ii, pp. 829–871. Trail smelter case (United States of America, Canada), 16 April 1938, in RIAA vol. iii, pp. 1905–1982. Lac Lanoux case (Espagne, France), 16 novembre 1957, in RIAA vol. xii, pp. 281–317. Case concerning claims arising out of decisions of the Mixed Graeco-German Arbitral Tribunal set up under Art. 304 in Part x of the Treaty of Versailles (Between Greece and the Federal Republic of Germany), Decision of 26 January 1972, in RIAA xix, pp. 27–64. Southern Bluefin Tuna case (Australia and New Zealand/Japan) Award of 4 August 2000 (Jurisdiction and admissibility), in RIAA vol. xxiii, pp. 1–57. Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, (Belgium, Netherlands), 24 May 2005, in riaa vol. XXVII, pp. 35–131.

ECHR

L.C.B. v. the United Kingdom, application n. 23413/94, decision of 9 June 1998. Oneryildiz v. Turkey, application no. 48939/99, decision of 30 November 2004. Budayeva and others v. Russia, application n. 15339/02, decision of 20 March 2008. Kolyadenko and others v. Russia, application n. 17.423/05, decision of 28 February 2012. Hadzhiyska v. Bulgaria, application n. 20701/09, decision of 15 May 2012. Sargsyan v. Azerbaijan, Application no. 40167/06, decision of 16 June 2015. Özel and others v. Turkey, Applications nos. 14350/05, 15245/05 and 16051/05, decision of 17 November 2015.

Index Abuse of right 32fn99, 60fn48, 210 Ad impossibilia nemo tenetur 39 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies see Moon Agreement aids 28, 87, 97 Airdrops 98–102, 118, 179, 230 Akande D., Gillard E.-C. 62 Akandji-Kombe J-F. 26, 76 Akehurst M.B. 35 Alessandrone-Gambardella V. 139 Antonopoulos C. 98 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Case Concerning) (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement 178 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Case Concerning) (Georgia v. Russia Federation), Preliminary Objections, Judgement 59, 67, 178 Arangio Ruiz G. The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations (1972) 154 Le domaine réservé. L’organisation internationale et le rapport entre droit international et droit interne, (1990) 3 Armed Activities on the Territory of the Congo (Case Concerning) (Democratic Republic of the Congo v. Uganda), Judgement 157 Armed conflict 56–63, 105, 120 Astronaut 182, 195 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment 161 Back Impallomeni E. Spazio cosmico e corpi celesti nell’ordinamento internazionale (1983) 9, 138, 167

Sfruttamento delle risorse della Luna e patrimonio comune dell’umanità (1994) 157 Telerilevamento (1997) 148 Balakista Reddy V., Banerjee D. 15, 39 Ballarino T., Busti S. 144, 169, 170, 212 Barber R. 90 Bartolini G. La definizione di disastro nel progetto di articoli della Commissione del diritto internazionale (2015) 30 Il Progetto di articoli della Commissione del Diritto Internazionale sulla “Protection of Persons in the Event of Disasters (2017) 46, 51, 74 Beigbeder Y. 14 Benkӧ M., Schrogl K.-U. 142 Benton Heath J. 16 Benvenuti P. 100, 101 Bettati M. Un droit d’ingérence? (1991) 100 The Right of Humanitarian Intervention or the Right of Free Access to Victims? (1992) 121 Bianchi A. Environmental Harm Resulting from the Use of Nuclear Power Sources in Outer Space: Some Remarks on State Responsibility and Liability (1991) 38 Il regime internazionale delle salvaguardie relative all’uso dell’energia nucleare nelle missioni spaziali (1993) 196 Binder C., Schreuer C. 191 Birnie P., Boyle A., Redgwell C. 25, 35, 36, 45, 193 Biscottini G. 147 Blaine Sloan F. 152 Bogotà Declaration 129 Boisson de Chazournes L., Condorelli L. 93–94 Boisson de Chazournes L. 94 Bonté A. 217 Bothe M. 57, 58, 63, 81, 100 Bothe M., Partsch K.J., Solf W.A. 58, 60, 63 Bourbonnière M., Haeck L. 156

Index Boyle A., Harrison J. 99 Bollweg H.G. 225 Breau S.C., Samuel K.L.H. 18 Brown Scott J. 212 Brownlie I. International Law and the Use of Force by States (1963) 100 The Maintenance of International Peace and Security in Outer Space (1964) 9 Brölmann C. 136, 211 Budayeva and others v. Russia 20, 26, 27, 79 Burci G.L., Quirin J. 88 Burdese A. 191 Cahin G. 154 Campanelli D. 94 Capotorti F. 159, 160 Caron D.D. Les aspects internationaux des catastrophes naturelles et industrielles (2001) 28, 109 The ilc Articles on State Responsibility: The Paradoxical Relationship between Form and Authority (2002) 16 Preface (2014) 15 Cassese A. 98 Catalano Sgrosso G. Aspetti giuridici del telerilevamento (1994) 150 Mise en œuvre des principes des Nations Unies de 1986 sur la télédétection. Le point de vue du juriste (1994) 155, 170, 184 Natural Disaster Management (2006) 155 Certain Activities Carried out by Nicaragua in the Boarder Area; Construction of a Road in Costa Rica along the San Juan River (Costa Rica v. Nicaragua), Judgement 124–125 Charter of the United Nations 3, 4, 7, 43, 44, 83, 84, 85, 86, 88, 89, 90, 96, 97, 102, 103, 104, 108, 115, 116, 157, 207 Chaumont C. Les problèmes de droit international de l’espace extra-atmospherique (1958–1959) 8 Le droit de l’espace (1960) 136 Cheng B. The United Nations and Outer Space (1961) 166

259 The Legal Regime of Airspace and Outer Space: the Boundary Problem Functionalism versus Spatialism: the Major Premises (1980) 131, 141 The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use (1983) 127, 131 Studies in International Space Law (2004) 153, 166, 176, 196 Chernobyl 38fn122, 178fn114, 198 Christakis T. 100 Christol C.Q. Remote Sensing and International Law (1980) 148, 150, 167 The Modern International Law of Outer Space (1982) 127 Remote Sensing in an Era of Global Warming (2007) 178 Claims arising out of decisions of the Mixed Graeco-German Arbitral Tribunal set up under Art. 304 in Part x of the Treaty of Versailles (case concerning) (Between Greece and the Federal Republic of Germany)  181 Cocca A.A. 7 Cogen M. 163 Cohen R., Bradley M. 19, 54 Colliard C.A. 166 Colombia 129fn21, 155 Common benefit 148–149, 165, 197, 201, 233, 234 Condorelli L. L’imputation à l’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances (1984) 34 The International Humanitarian FactFinding Commission: an Obsolete Tool or a Useful Measure to Implement International Humanitarian Law? (2001) 104 Conetti G. 132, 140 Conforti B. In tema di responsabilità degli Stati per crimini internazionali (1987) 122 Le Nazioni Unite (1994) 84, 85, 103 Diritto internazionale (2002) 152

260 Consensus (procedure of) 146fn93, 149, 153, 154, 155, 162, 163, 164, 166, 186fn141, 214 Convention Establishing an International Relief Union 12, 13, 20fn45, 52fn22, 232 Convention on International Civil Aviation 5, 15fn19, 18fn34, 64, 126 Convention on International Liability for Damage Caused by Space Objects see Liability Convention Convention on Registration of Objects Launched into Outer Space see Registration Convention Convention on the Law of the Sea 42fn135, 68, 101fn218, 120fn297, 146fn93, 215 Corfu Channel case (Merits), Judgment 35, 45 Corten O., Klein P. 92 Corten O. The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate (2005) 94 Le droit contre la guerre. L’interdiction du recours à la force en droit international contemporain (2008) 97 Cosmos-954 33, 142 Costas Trascasas M. 120 Cot J.P. 161 Countermeasure 98fn204, 122, 123, 189, 217fn38 Coursen-Neff Z. 55 Courteix S. Les “satellites bleus” au Service de la Paix et du Désarmament (1981) 170 Towards the Legal Recognition of a New Method of Proof for the Defense of the Environment: Satellite Images (1994) 156 Creta A. 58 Dalfen M. 191 De Bellis S. 33 De Guttry A. 122 De Oliveira Bittencourt Neto O. 142, 144, 147 De Saint-Lager O. 156 De Siervo G. 50, 91 De Urioste A. 12, 13, 73, 75 De Vattel E. 106, 107

Index De Vitoria F. 43 Den Dekker G. 157 Diederiks-Verschoor I.H.P. 64 Dignity 74, 77 Dinstein Y. 75 Disaster (definition) 17–23 Domestici-Met M.-J. Aspects juridiques récents de l’assistance humanitaire (1989) 4 Comments (1995) 75 Du Pontavice E. 64, 136 Due diligence 34, 35, 36, 39, 71, 202, 227, 231 Dupuy P.M. La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (1976) 39 Observations sur la pratique récente des “sanctions” de l’illicite (1983) 122 A General Stocktaking of the Connections Between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility (2002) 122 Dupuy R.J. 62 Durante F. 9, 158 Duty to seek assistance 70, 71 Ebola 28, 88, 89 Eboli V. 76 Ecuador 129 Egeland J., Harmer A., Stoddard A. 179 Epidemiological telecommunications 220 European Space Agency 155, 168 Evans R. 109 Failed State 91 Falk R. A. 152 Fauchille P. Régime juridique des aérostats, Rapport et projet de résolutions de M. Paul Fauchille, Premier Rapporteur, (1902) 165 Rapport, Régime juridique des aérostats. Projet de convention sur le régime des aérostats en temps de paix, (1906–1911) 165 Faure M.G. 29 Ferrazzani M. 225 Ferris E., Petz D. 178, 205

261

Index Fidler D.P. 12, 24, 50 Fisher D. The Right to Humanitarian Assistance (2010) 75 The Future of International Disaster Response Law (2012) 118 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) Jurisdiction of the Court, Judgment 197 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment 59, 67 Focarelli C. 3, 35, 60, 74, 81, 98 Fonteyne J.L. 96 Food (right to) 62, 79 Forlati S. 122 France 35–36, 90, 113fn267, 140fn68, 170fn79, 175fn98, 187fn146 Francioni F. 191 Freedom of exploration and use (of outer space) 126, 137, 158fn32, 167, 233 Freestone D. 193 Frowein J.A. 122 Functional theory 136–142, 212 Gabčíkovo-Nagymaros Project (Hungary/ Slovakia), Judgment 31, 160 Gabrynowicz J.I. Expanding Global Remote Sensing Services (1999) 156 The un Principles Relating to Remote Sensing of the Earth from Outer Space and Soft Law (2012) 186, 188 Gaja G. Incidente a Chernobyl ed obbligo di informazione (1986) 38 Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts (1989) 123 Gal G. 7, 9, 134, 137, 139, 144, 146 Gangale T. The Non Kármán Line: An Urban Legend of the Space Age (2017) 134 How High the Sky? (2018) 145 Gathii J.T. 163 Gaudrat P., Tuinder P.H. 156, 186

Gavshon D. 30 Geostationary (orbit) 128, 129, 218, 219 Germany 38fn122, 187fn146 Gillard E.C. 58, 63, 101 Glazer J.H. 208, 210 Goedhart R.F.A. 135, 137, 142, 144 Goedhuis D. Some Trends in the Political and Legal Thinking on the Conquest of Space (1962) 136 Some Observations on the Problem of the Definition and/or the Delimitation of Outer Space (1977) 142, 158 Good faith 59, 60, 67, 77, 106fn241, 115fn274, 152, 158, 167, 176fn104, 181 Goodrich L.M., Hambro E. 83, 115 Gorenflos W. 211 Gorove S. Earth Resources Survey Satellites and the Outer Space Treaty (1973) 167, 173 Sovereignty and the Law of Outer Space Re-examined (1977) 144 International Space Law in Perspective – Some Major Issues, Trends and Alternatives (1983) 6 Aerospace object – Legal and Policy Issues for Air and Space Law (1997) 142 Gotlieb A.E. 148, 173, 226 Gravitation theory 135 Gros Espiell H. Comments (1995) 75 Les fondements juridiques du droit à l’assistance humanitaire (1995) 109 Haanappel P.C. 64 Hadzhiyska v. Bulgaria 27, 79 Haley A.G. 134 Handl G. 32 Hardcastle R.J., Chua A.T.L. 55, 75 Harvey P. 49, 121, 179 Health (right to) 80 Heath J. B. 78 Heathcote S. 63 Herdegen M. 160 Hilpold P. 92 Hingorani C.R. 131 Hobe S., Kimminich O. 143 Holzgrefe J. L. et Keohane R.O. 92

262 Human tragedy 83, 84, 89, 104, 105, 106, 230 Humanitarian intervention 3, 92–98, 100, 230 Humanitarian tragedy see human tragedy Hurwitz B. 142 Hybrid vehicle 140, 141 Hyman W.A. 146 Innocent passage 120fn297, 142, 146, 212fn21 Interference (harmful) 182, 214–225, 231 International Charter on Space and Major Disasters 24, 200, 201, 205, 233 International Health Regulations 15fn16, 39fn124, 43, 53fn22, 111, 220 International Relief Union see Convention Establishing an International Relief Union International Telecommunication Union 207 Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, (Belgium, Netherlands) 33 Island of Palmas case (Netherlands, U.S.A.) 32 Israel 168fn72 Ius cogens 99, 132fn34 Jakhu R. The Legal Status of the Geostationary Orbit (1982) 130 International Law Governing the Acquisition and Dissemination of Satellite Imagery (2003) 150, 172, 186 Legal Issues Relating to the Global Public Interest in Outer Space (2006) 187 Jakovljevic B. 109 Jenks C.W. 206 Jennings R.Y. 9 Jennings R., Watts A. 49 Jingjing N. 225 Joeden J. 211 Johnstone I. 95 Kahn D. 211 Kalshoven F. 104 Kant I. 4 Karman line 134

Index Kasikili/Sedudu Island (Botswana/Namibia), Judgment 161, 162 Kayser V. 132 Kelsen H. The Law of the United Nations (1951) 116 Principles of International Law (1966) 59 Kent G. The Right to International Humanitarian Assistance (2000) 75 The Human Right to Disaster Mitigation and Relief (2001) 75 Rights and Obligations in International Humanitarian Assistance (2014) 109 Kiss A. L’accident de Tchernobyl et ses conséquences au point de vue du droit international (1986) 38, 45 Débats (1994) 155 Kiss A., Beurier J-P. 35 Kohen M.G. 96 Kolb R. La bonne foi en droit international public. Contribution à l’étude des principes généraux de droit (2000) 61, 158 Note on humanitarian intervention (2003) 92 De l’assistance humanitaire: la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003 (2004) 50, 60, 75, 98, 109, 114, 115, 120, 123 Kolyadenko and others v. Russia 20, 26, 79 Konstantinov E. 141 Koroma A.G. Humanitarian intervention and contemporary international law (1995) 92 Solidarity: Evidence of an Emerging International Legal Principle (2012) 43 Kramer G.M. 178 Kuokkanen T. 32 Kuskuvelis I.I. 169 Kussbach E. 104 Lac Lanoux case (Espagne, France) 35, 36 Lachs M. The International Law of Outer Space (1964) 7, 9 The Law of Outer Space (1972) 129

Index The Development and General Trends of International Law in our Time (1980) 118, 233 Views from the Bench: Thoughts on Science, TechnologyandWorldLaw (1992) 10, 170 Freedoms of the Air – the Way to Outer Space (1992) 142 LaGrand (Germany v. United States of America), Judgment 161 Lafferranderie G., Tuinder P.H. 168 Larsen P. B. 187 Lattanzi F. Garanzie dei diritti dell’uomo nel diritto internazionale generale (1983) 76, 106, 179 Assistenza umanitaria e intervento di umanità (1997) 60, 75, 104, 119 Lauta K.C. 74 Leanza U. 197 Leben C. 20, 22, 24, 25, 26, 28, 32, 36, 45, 121, 182, 204 Lee R.J., Freeland S.R. 186 Legal certainty 128, 129, 147 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion 90, 160 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 116, 161 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion 33, 44, 61, 153, 154, 181 Lepp N. 54 Liability Convention 10, 127, 130, 138, 139, 140 Liakopoulos D. 92 Lillich R. B. 92 Linderfalk U. 159, 160 Lipson L., Katzenbach N. 8 Lo C. 59, 67, 160 Loukakis A. 225 Loupajarvi K. 78 Macalister Smith P. International Humanitarian Assistance. Disaster Relief Actions in International Law and Organization (1985) 108

263 The International Relief Union – Reflections on the Convention Establishing an International Relief Union of July 12, 1927 (1986) 13 The Right to Humanitarian Assistance in International Law (1988) 75 Rights and Duties of the Agencies Involved in Providing Humanitarian Assistance and their Personnel in Armed Conflict (1989) 58 Malanczuk P. Freedom of Information and Communication – Recent Developments in the Helsinki Process (Conference on Security and Co-operation in Europe) (1991) 210, 213, 216 Humanitarian Intervention and Legitimacy of the Use of Force (1993) 92, 96 Space Law as a Branch of International Law (1995) 6, 142, 158 Malintoppi A. 113, 115 Mani V.S. 108, 116 Mansour A.B. 52, 99 Manzini P., Masutti A. 225 Marcelli F. 116, 175 Marchisio S. Gli atti di Rio nel diritto internazionale (1992) 25 Remote Sensing for Sustainable Development in International Law (1997) 197, 201 Comment on the Discussion Paper on Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery Presented by Mr. K. Sridhara Murthi (2006) 185, 189, 190 Il diritto internazionale dell’ambiente (2008) 35, 36 The itu Regulatory System: A SelfContained Regime or a Part of International Law? (2014) 207, 218 Marcoff M.G. Traité de droit international public de l’espace (1973) 9, 152 Disarmament and “Peaceful Purposes” Provisions in the 1967 Outer Space Treaty (1976) 173, 197 Martini R. 165, 170, 177, 189, 203 Masson-Zwaan T.L. 142 Matte N.M.

264 Matte N.M. (cont.) Droit aérospatial (1969) 135 Aerospace Law: Telecommunications Satellites (1980) 136, 208, 210, 212, 216, 217, 221 McDouglas M.S., Lasswell H.D., Vlasic I.A. 128 McIntyre O. 45 Meier O. 41 Miele A. 21, 49 Migliorino L. 182, 197 Milano E. 211 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment 45, 49, 63, 64, 81, 92, 97, 98, 99, 109, 217, 225 Military remote sensing 150fn9, 151, 169–171 Military satellites 169–171 Mishra S., Pavlasek T. 134, 137 Mokhtar A. 104 Monaco R. 131 Monastery of Saint-Naoum, Advisory Opinion 158 Monserrat Filho J. 156, 176 Moon Agreement 194, 195 Moreno A. 46, 151, 168, 171, 192 Mullerson R.A. 196 Müller R., Müller M. 138 Murphy S.D. Humanitarian Intervention: The United Nations in an Evolving World Order (1996) 92 Protection of Persons in the Event of Disasters and Other Topics: The SixtyEighth Session of the International Law Commission (2016) 17 Natural resources 22, 44, 124, 149–150, 157, 173–177, 218, 219 Navigational and Related Rights (Dispute regarding) (Costa Rica v. Nicaragua), Judgment 160 Nawinne R.M.R.B. 108 Necessity (state of) 95, 99, 100, 101, 179, 217 Neutralia 146 Nifosi-Sutton I. 26 Non-appropriation (of outer space) 9, 126, 128fn18, 129, 158fn32

Index North Sea Continental Shelf Case, Judgement 143, 153 Nuclear Tests case (Australia v. France), Judgement 34 O’Donnell T., Allan C. An Offer You Cannot Refuse? Natural Disasters, the Politics of Aid Refusal and Potential Legal Implications (2013) 50 A Duty of Solidarity? The International Law Commission’s Draft Articles and the Right to Offer Assistance in Disasters (2016) 114 Oeberg M.D. 153 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement 99, 124 Okowa P.N. Procedural Obligations in International Environmental Agreements (1996) 35, 38, 39 Principle 18. Notification and Assistance in Case of Emergency (2015) 37, 39, 46, 107 Oppenheim and Lauterpacht 210 Oraà J. 76 Orford A. 92 Ӧzel and others v. Turkey 79 Pauwelyn J. 122 Penent G. 216 Pépin E. 7, 128 Perek L. Scientific Criteria for the Delimitation of Outer Space (1977) 134 The 1976 Registration Convention (1998) 203 Perigee (of satellites) 126, 144, 146, 203, 230 Permanent sovereignty (over natural resources) 157, 173, 174, 176, 177, 184 Peyrefitte L. The Legal Regime of Remote Sensing of the Earth from Space (1991) 148, 166, 168, 177, 197 Le régime juridique de la télédétection spatiale (1991) 177 Picone P. 108 Pietrobon A.

Index Il sinallagma negli accordi internazionali (1999) 59 Nuclear Powers’ Disarmament Obligation under the Treaty on the NonProliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions between Soft Law and Hard Law (2014) 41 Pisillo-Mazzechi R. Forms of International Responsibility for Environmental Harm (1991) 35 Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme (2008) 76 Pocar F. La codificazione del diritto dello spazio ad opera delle Nazioni Unite (1993) 158 The Normative Role of uncopuos (1997) 161 Voli aerospaziali e delimitazione dello spazio (2000) 127, 133, 142 Poli L. 89 Polter D.M. 172, 177 Porous (territorial sovereignty) 6, 68, 230, 231 Pozzobon O., Wullems C., Kubik K. 224 Precautionary approach see precautionary principle Precautionary principle 24fn62, 36fn115, 193 Pulp Mills on the River Uruguay (Case Concerning) (Argentina v. Uruguay), Judgement 36, 124, 160 Quadri R. Droit international cosmique (1959) 64, 131, 136, 138, 141, 211, 212 Diritto internazionale pubblico (1968) 152, 211, 212 Raby J. 100 Rapp L. 140 Recchia S. 92 Registration Convention 130, 141fn72, 203 Relief corridors 120, 179 Relief flights 15, 63–69, 81, 100, 117 Remote sensing (definition) 149 Retorsion 121, 179 Right to humanitarian assistance 74, 75, 108fn250

265 Rodenhäuser T., Giacca G. 30, 58, 63 Rodley N. 75 Ronzitti N. Diritto internazionale dei conflitti armati (2006) 62, 63, 99 Introduzione al diritto internazionale (2009) 84, 99 Rosenfield S.B. 64, 130, 134 Ruiz Fabri H. 68, 211, 212, 225 Russia 87 fn159, 144, 145fn87, 178, 205–206 Ryngaert C. 101 Sachariew K. 122 Saechao T.R. 109, 111 Salerno F. 95, 98, 101 Salmon J. 60 Samuels J.W. 112 Sandoz Y., Swinarski C., Zimmermann B. 58, 81 Sands P. 38 Sands P., Peel J., Fabra A., Mackenzie R. 36, 37, 38 Sapienza R. 49 Sargsyan v. Azerbaijan 125 Sauer E. 8 Schermers H.G., Blokker N.M. 163 Schindler D. Humanitarian Assistance, Humanitarian Interference and International Law (1993) 82 Protection des droits de l’homme en cas de désintégration ou d’incapacité de l’autorité étatique (1995) 93 Schönborn W. 133 Schuster F., Pressler H. 211 Schwebel S.M. The Effect of Resolutions of the United Nations General Assembly on Customary International Law (1979) 154 Justice in International Law. Selected Writings (1994) 154, 155, 164 Seara Vázquez M. 167 Self-contained (regime) 10 Sherman L., De Lorenzo D., Enge P. 224 Simma B., Pulkowski D. 10 Sivakumaran S. 73, 81, 91, 103 Skogly S. 113 Smith M.L. 218

266 Sohn L.B. 35 Solidarity 6, 13fn5, 30, 43, 44, 94, 106, 107, 108, 110, 114, 229–234 Sommario E. 76 South West Africa cases, Second Phase, Judgment 197 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment 161 Soviet Union 33, 38fn122, 142, 143, 166fn60, 169, 171, 174–175, 178fn114, 198 Space debris 22 Space object 10, 22, 127, 128, 130, 135, 137, 138, 139, 141, 143, 145, 146, 195, 203 Spacecraft 22, 132, 133, 137, 138, 140–146 Spatialist theories 132–136 Spieker H. 75 Staelin D.H., Kerekes J. 211 Stoffels A. 110 Supancana I.B.R. 15 Supplementary means of interpretation 140fn68, 160, 161 Tavernier P. 87 Telec A. 90 Telesetsky A. 23 Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment 161 Territorial integrity 34, 35, 49fn8, 81, 82, 95, 100, 101 Thirlway H. 152 Threat to international peace and security 8fn20, 83–92, 103, 104 Toman J. Towards a Disaster Relief Law. Legal Aspects of Disaster Relief Operations (1989) 13 International Disaster Response Law: Treaties, Principles, Regulations and Remaining Gaps (2006) 12 Tomuschat C. International Law: Ensuring the Survival of Mankind on the Eve of a New Century (1999) 3 Human Rights Committee (2010) 106 Trail smelter case (United States of America, Canada) 32 Treves T.

Index Une nouvelle technique dans la codification du droit international: la comité de rédaction de la conférence sur le droit de la mer (1981) 147 Diritto internazionale. Problemi fondamentali (2005) 154, 155, 158 Tronchetti F. 187 United States 22fn52, 32fn101, 54, 63, 135fn49, 141, 143, 147fn93, 166fn60, 168fn72, 169, 171, 173, 175, 187, 188 Urbinati S. 89 Van Damme I. 163 Venturini G. Servizi di telecomunicazione e concorrenza nel diritto internazionale e comunitario (1999) 113, 207 International Disaster Response Law in Relation to Other Branches of International Law (2012) 46, 53, 116 Verdross A. 64, 211 Vereschetin V.S. 129 Vereschetin V.S., Danilenko G.M. 157, 169 Verification 41fn129–130, 53fn22, 119, 170, 171, 202–204 Vezzani S. 89 Vienna Convention on the Law of Treaties 5, 41fn128, 59fn44, 67fn77, 139, 140fn67–68, 152, 159–165, 196 Villalpando S. 122 Villani U. 96 Virally M.M. 196 Vitta E. 49, 93 Vlasic I.A. 167, 169, 173, 177, 186, 196 Vogler J. 171 Von der Dunk F.G. United Nations Principles on Remote Sensing and the User (2002) 156 Non-Discriminatory Data Dissemination in Practice (2002) 185 The Sky is the Limit – But Where does it End? (2005) 144 European Satellite Earth Observation: Law, Regulations, Policies, Projects, and Programmes (2009) 185 Outer Space Law Principles and Privacy (2012) 176

267

Index International Space Law (2015) 6, 130 Von Hannover W.H. Problems in Establishing a Legal Boundary Between Air Space and Space (1958) 134 Staatshoheit und Weltraum (1959) 8 Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, Separate Opinion of Judge Lauterpacht in the Advisory Opinion 159 Vukas B. 107 Wadegaonkar D. 128 Ward C. 8 Water (right to) 80fn130 Weckel P. 54 Weil P. 122 Widdows K. 47, 196 Williams M. The un Principles on Remote Sensing Today (2005) 156

Space Law and Remote Sensing Activities (2005) 156, 173 Wins-Seemann E. 188 Winter G. 184 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment 162, 164 Wolfrum R. 34, 35, 36 Wood M.C. 152 Yokaris A. 167 Zagato L. 150, 171 Zamuner E. 157 Zannoni D. 217, 219 Zhao Y. 111, 193 Zhukov G. 175 Zunes S. 54 Zur Hausen H. 223