تحلیل جایگاه کاهش ریسک بلایا در حقوق بین‌الملل

The occurrence of disasters and their devastating consequences have driven states to cooperate with each other and turn to international law for regulations. However, the binding rules of this legal system primarily focus on post-disaster stages, such as response and recovery. The inclusion of pre-disaster topics like disaster risk reduction (DRR) in various international documents, along with the ambiguity regarding their content and legal standing, has motivated this article to examine the legal nature of DRR in international law and the extent of states' obligations in this regard.
The scarcity of Persian legal resources, particularly concerning Iran, a country recognized as having a very high-risk level, highlighted the need for this research. This fundamental research relies on library resources like legal scholars' treatises and international documents and agreements. The author employs a doctrinal research method with a predominantly positivist approach. The research question aims to determine the normative nature of DRR in international law, meaning whether this concept imposes obligations on states or merely provides recommendations. The hypothesis presented is that DRR has not yet emerged as a mandatory treaty or customary rule. However, a limited level of obligation can be argued for due to its connection to specific human rights and environmental principles.
The analysis begins by discussing the evolution of the DRR concept in international law. To understand its meaning and scope, Article 9 of the Draft Articles of the International Law Commission on the Protection of Persons in the Event of Disasters is analyzed. This is followed by an examination of documents containing the concept in question. Since no global treaty, a large number of bilateral and multilateral treaties, or established state practice has codified DRR, the preliminary conclusion is that this concept has not been codified as a mandatory rule and states do not have an obligation to implement it.
However, focusing more on the content of the 2016 Draft Articles and the adoption of the Sendai Framework by the majority of the international community led to a shift in focus from a rule-based approach. Instead, the emphasis shifted towards clarifying the obligation-generating nature of DRR based on the legal status of the underlying concepts that make up disaster risk reduction.
Among the norms connected to the content of DRR, the right to life, the principle of prevention, and due diligence were chosen for further examination. The right to life was analyzed based on the views of doctrine and judicial practice. The conclusion reached is that the obligation arising from this human right to create an obligation to reduce disaster risk is not absolute. This obligation exists only in situations where disaster risk threatens the lives of individuals and cannot be extended to any damage caused by disasters. Additionally, preserving human life, the goal of this right, cannot be achieved solely through the proposed DRR methods.
The customary rule of prevention was another norm that was explained in general terms. In terms of its effectiveness in reducing disaster risk, it was found that prevention in international environmental law is mainly concerned with protecting the environment from human-caused harm, and the state's obligation to it is negative. In contrast, the prevention element within the framework of disaster law seeks to protect humans and their property from disasters. Secondly, like the right to life, prevention seeks to prevent transboundary harm by any means, but DRR measures have their own characteristics and focus on preventing domestic risks. Thus, the customary rule of prevention in its current state in international law has a very limited capacity to make disaster risk reduction mandatory.
The final case was the concept of due diligence, which the author believes is not limited to risks with transboundary effects. It is applied as a criterion to the category of risks that exacerbate the domestic effects of natural disasters. Therefore, each state, when formulating policies and making major development, economic, construction, and other decisions, must assess the impact of that action on the risk of natural disasters. This assessment is carried out in accordance with the principles of environmental impact assessment in international law and using standards such as best available technology and latest available technical means. Subsequently, the state is obliged to inform and provide the results to the people (for participation) and other states (in order to benefit from their experiences and progress). If, based on definitive scientific evidence, it is determined that the risk of the proposed action will increase the severity of the effects of disasters, the substantive principle of prevention is applied. And if there is not sufficient and reliable scientific knowledge about the impact of the risk, but its possibility exists, the precautionary principle is applied. In short, due diligence is a general framework within which other principles and mechanisms are defined and applied.
Despite the limitations mentioned in the enforceability of DRR, the status of this concept has significantly improved in a short period. Additionally, the use of the capacities of different fields of international law is not limited to strengthening the normative side of DRR. Contrary to the traditional view that necessitates the formation of binding rules, this system conveys its requirements to states through the creation of easily-regulated instruments in various legal soft law documents and formats, such as guidelines, codes of conduct, and sample draft legislation. Conversely, due to the absence of binding obligations and the existence of wide discretionary margins, states will be more inclined to move towards disaster risk reduction.