The threat of cyber-inflicted disaster looms large. Yet there are few bespoke rules of international law governing cyber threats, and little prospect of new ‘cyber law’ emerging. The common approach to dealing with large-scale cyber threats has thus been to apply the existing prohibition of the use of force. It is no simple matter to apply the prohibition to cyber-attacks, however. Applying the prohibition also involves significant attribution problems, and it covers neither cyber-attacks perpetrated by non-state actors nor unintended cyber harm. It is therefore argued that the focus should be reoriented to another existing international legal obligation: the duty of due diligence. This duty has been applied successfully to other issues of international concern, and its application to cyberspace would remedy (or minimise) the issues associated with applying the prohibition of the use of force. The duty can act as a more effective means of trying to prevent cyber disasters.
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International environmental law has been profoundly shaped by disasters. While international environmental law has been developed in order to avert or ameliorate catastrophes attributable to human activities, it also has relevance to the emerging field of disaster law that is primarily concerned with natural disaster preparedness, mitigation and response. This is not least because of the increasing difficulty in distinguishing natural from human-induced disasters in the Anthropocene. However, an international environmental law fashioned in the aftermath and shadow of a disaster suffers from several failings, fixating on discrete incidents and the risks of recurrence, rather than on the larger structural shortcomings in the international order that is enabling global environmental decline.
Walter Kälin and Hannah Entwisle Chapuisat
People displaced in the context of disasters associated with natural hazards and the impacts of climate change have specific protection and assistance needs that have only recently been recognised by legal scholars, human rights mechanisms and the broader international community. While existing international legal frameworks address some of the needs of disaster-displaced persons, particularly those displaced within their own countries, such frameworks are rarely implemented in practice, or, such as in the case of international human rights law, have not been explicitly applied to disaster displacement contexts. Legal gaps are particularly acute with respect to cross-border disaster displacement and what standards should guide admission, rights during stay and finding a lasting solution in such situations, although examples of effective practices related to such situations have been identified. Progress in recent years at the international and regional levels to address the protection and assistance needs of disaster-displaced persons, particularly in the context of the Nansen Initiative process, has helped lay the foundation for the creation of a more comprehensive legal framework for disaster-displaced persons in the future.
This chapter explores a range of dispute settlement mechanisms (DSMs) for resolving disputes in the aftermath of disasters. It thus fills an important gap in the existing scholarship, not only offering an in-depth assessment of the various mechanisms that might be employed to resolve future disaster-related disputes, but also considering what we can learn from past experiences here. The chapter considers a range of DSMs, looking in turn at international courts and tribunals, domestic courts and alternative dispute resolution mechanisms. These institutions are explored through seven case studies. A number of important conclusions are drawn from these case studies that should help to ensure that in future post-disaster situations the most appropriate DSMs are utilised in a way that ensures their effectiveness in resolving disaster-related disputes.
Thérèse O’Donnell and Craig Allan
International solidarity is proclaimed as a key value of the international community. Natural disasters offer the perfect context for its demonstration. Oftentimes international actors readily offer aid and assistance but the governing legal framework remains uncertain. Thus, the current ILC drafting project presents a welcome opportunity to codify and concretize matters. This chapter analyses the ILC draft article concerning external actors’ rights to offer assistance to disaster-stricken states. If the project’s focus is the protection of stricken populations, does this ‘right’ suggest or encourage the possibility of a duty to offer assistance when natural disasters strike? An alternative reading challenges any such duty. This chapter analyses the ‘right to offer’ in its own terms, and in the context of the other Draft Articles, and considers whether the draft provision materializes international solidarity.
Food security exists when all people have access to sufficient, safe and nutritious food to meet their needs. When food security is jeopardized, communities are more likely to become disaster victims. With predictions of global populations rising to 9 billion by 2050, states are facing challenges in meeting national food security. Law as a social institution must play a role in addressing food instability as a disaster risk. This chapter examines what role law currently plays before, during and after a disaster by discussing a state’s duty to prevent or mitigate environmental conditions likely to endanger food security, the human right to food during a disaster, and the obligation for States to ‘build back better’ after a disaster. The chapter concludes with a proposal for increasing investments in regional food networks to address both food security and disaster prevention.
One of law’s central concerns is equality of rights, yet law is conspicuous by its absence from the debate about global inequality. Extraordinary numbers of people have inadequate access to the basic necessities of life: food, water, education, health and a decent environment. For billions of people, this is a disaster. At a time of unparalleled global affluence, when the need for sharing global wealth and opportunity is more important than ever, the gap between rich and poor is expanding. How should we explain this process? This chapter considers Karl Polanyi’s contribution to our understanding of social rights and the ways in which public interests evolved during the last century. The discussion examines how subsequent norms of global capitalism have encouraged private interests to undermine collective welfare and the consequences of the law’s failure to engage itself with the problem.
Kristian Cedervall Lauta
Human rights are considered central to disaster management efforts. However, the concrete interrelationship remains somewhat ambiguous. Approached from a strictly legal point of view, human rights should apply to disaster situations in the same way as to any other social situation. Even then, special instruments, guidelines and reports are made in order to promote and clarify the application of human rights in disaster management in general, and disaster response in particular. In this chapter, I set out to describe the present situation for human rights and disasters. The chapter critically assesses the human rights sources, specifically addressing disaster situations, and discusses their applicability and status within law as well as disaster management.
Tilman Rodenhäuser and Gilles Giacca
This chapter presents the international humanitarian law (IHL) framework for humanitarian relief during armed conflicts and complex emergencies. It sets forth the main rules of IHL governing humanitarian assistance in international armed conflicts, including situations of occupation, and in non-international armed conflicts. In particular, it highlights contemporary challenges to the delivery of humanitarian relief in situations where non-state armed groups control territory. The chapter also analyses the question of to what extent the IHL framework applies in situations of complex emergencies, i.e. in situations where armed conflict and other man-made or natural disasters coincide on the territory of a party to an armed conflict. It examines the relationship between IHL and international disaster law in such circumstances as well as the question to what extent the two fields of law can complement each other. This chapter argues that in complex emergencies, the applicable legal framework is primarily IHL, which constitutes a legal regime that is specifically tailored to conflict situations. It also provides greater protection for civilians than, for example, in the ILC Draft Articles on the ‘Protection of persons in the event of disasters’.