The concept of solidarity within eu disaster response lawa legal assessment

Resumen

The concept of solidarity within EU disaster response law:a legal assessment Susanna Villani ABSTRACT In recent times, the protection of persons in the event of overwhelming natural and man-made disasters has become an issue of great importance for international legal doctrine and the international community as a whole. The growing number of disasters and subjects involved in the provision of humanitarian assistance has forced the international community to consider the opportunity of elaborating a specific regulatory framework concerning the international response to situations of disaster. As illustrated in Chapter I, the work carried out by the International Law Commission on the Protection of Persons in the Event of Disasters has attempted, inter alia, to elaborate specific obligations of solidarity upon States, such as the duty to cooperate, the duty to seek for assistance in case the affected State is unable to cope with the consequences of overwhelming disasters, as well as the necessity that the potential assisting actors take in due consideration the requests of assistance coming from the affected States. In the expectation that the UN General Assembly adopts an universal regulatory framework reflecting the set of duties enshrined in the draft articles, the international legal system regulating international response to large-scale disasters still tends to preserve the sovereignty both of the affected States and the States providing for assistance thus giving rise just to a set of interconnected States’ rights: the right to request for assistance, the right to offer it and the right to provide it. This is also because – as illustrated in the introduction of the research work –, despite many rules of international law convey some aspects of solidarity, at present there is not any rule expressly prescribing solidarity from a legal point of view. Accordingly, at the moment, ‘rights of solidarity’ prevail over ‘duties of solidarity’ thus potentially impinging on the alleged right to humanitarian assistance of the population affected by serious disasters. Against this background, the research is aimed at exploring and evaluating the functional and normative impact of solidarity as conceived in the EU legal order within the so-called EU disaster response law. Indeed, on the one hand, solidarity represents the paradigm of reference of the structural and normative configuration of the very EU integration process. On the other hand, the increasing interest towards a common strategy addressing disaster response within the EU territory should be seen as privileged field for extensive solidarity in the relationship between Member States and between them and the Union. Therefore, attempts have been made in answering the following questions: to what extent do the instruments of EU law intervening in the event of a disaster respond to the requirements of solidarity as expressed by the Treaties? What is the legal nature of solidarity within EU disaster response law? Does the principle of solidarity have a normative effect thus establishing solidarity obligations on Member States and on the Union in the event of a disaster which do not yet exist in international law? In order to explore these issues, Chapter II – as a sort of feeder between the international law framework and EU law – focuses on the notion of solidarity as central principle and keystone of the whole political and legal structure of the EU integration process. A legal and temporal reconstruction of the concept of solidarity as conceived both within the Treaties and by the ECJ jurisprudence has thus been addressed by dwelling also on its relation with the principle of loyal cooperation. The Lisbon Treaty has contributed to give impetus to the legal concept of solidarity by assuring it a special position as manifold (but rather complex) notion serving as core value, as objective and as principle to be respected and pursued by the EU institutions and the Member States. It is exactly this three-fold functionality of solidarity as integrated concept at EU level which should play a fundamental and decisive role in emergency scenarios. In effect, the Union – perceived as instrument of ‘solidary integration’ between Member States and as subject responsible for the implementation of the material solidarity enshrined in the Treaties – has progressively developed and improved a number of instruments capable to implement such a solidarity-based approach in the provision both of financial and in-kind assistance. The work is firstly dedicated to the instruments providing for financial assistance – namely the EU Solidarity Fund and the new emergency support instrument – as well as to the EU rules concerning the adoption of public measures for supporting companies hit by a calamitous event. Indeed, EU solidarity in case of disaster affecting a Member State manifests itself not only through direct financing instruments, but also through a number of derogations progressively adopted to general legal frameworks concerning State aids and fiscal policies. Chapter III, besides reporting the relevant improvements made in the aftermath of the Lisbon revision and the added value of the Emergency Support Instrument inaugurated in 2016, underlines also the existence of some important legal shortcomings. Particular emphasis is made on the relation between the principle of solidarity and the principle of conditionality which comes in when dealing with EU instruments of financial assistance. In fact, the conditions set for their activation seem to be intended to establish a framework which links the principle of conditionality to the responsibility of the affected State and to the solidarity of the EU institutions. But, it is hard to acknowledge that conditionality may be a genuine expression of solidarity; rather, it is source of reinforcement of the principle of State responsibility thereby risking to limit the scope of application of solidarity and to make it a ‘conditioned solidarity’. Besides financial tools, the research has focused on the Union Civil Protection Mechanism which represents the main instrument providing for in-kind assistance and envisaging a more cooperative attitude among Member States, by rendering the EU catalyst of solidarity. Chapter IV develops around the main normative and institutional steps that have been adopted in the long way towards the creation of a more effective and functional mechanism of civil protection at EU level. The inclusion of a specific legal basis (Article 196 TFEU) within the Lisbon Treaty and the adoption of the Council Decision 1313/2013/EU have marked the latest step of the ‘institutionalization’ of EU civil protection and the establishment of the Union Civil Protection Mechanism. Of particular relevance is the establishment of the European Emergency Response Capacity (EERC), that is a ‘voluntary pool’ of pre-committed resources including modules of civil protection, teams of technical and practical support and experts in different fields. Once selected according to the criteria set by the Commission, the pre-committed response capacities put at disposal by the participating States shall be registered and kept on standby in order to be immediately available when the situation calls for it. By taking into account its main operational and legal characters, the EERC might become a tool in the hands of the Commission to provide assistance both within and outside the Union territory. The Civil Protection Mechanism inaugurated in 2014 is, thus, not limited to the support and cooperation among national civil protection services, but it seems aimed at progressively ‘federalising’ them under the helm of the European Union. However, there is to say that the Mechanism is essentially based on resources put voluntarily at disposal by States which from a strict legal point of view seem to be bound by the respect of obligations of loyal cooperation rather than of obligations of solidarity. The Union Civil Protection Mechanism appears therefore in line with the other explored legal instruments of secondary law, be they the EU solidarity fund and the emergency support instrument, which do not reflect a compulsory character in their early activation or even duties of solidarity (in the form of a duty to provide for assistance) in favour of the affected State. Rather, the provision of financial and in-kind assistance remains in the sphere of the rights of the States and of the Union itself and, therefore, subjected to their final will. Chapter V is aimed at illustrating the content and the ways of implementation of one of the main novelties of the Lisbon revision, that is the so-called ‘solidarity clause’ enshrined in Article 222 TFEU which requires both the Union and the Member States to act “in a spirit of solidarity” and to assist another EU country which is the victim of a natural or man-made disaster. In the light of this, the solidarity clause represents a breakthrough of EU disaster response law in comparison to international law by establishing a lex specialis which imposes on Member States and on the EU institutions an explicit duty to assist the EU Member affected by a disaster. Moreover, since the Union is asked to activate all the instruments available to support the affected EU Member as well as to guarantee the positive synergy among them, the solidarity clause becomes link and trigger of the illustrated mechanisms of financial and in-kind assistance. As a result, the activation of those instruments which usually rely just on a mere right of deployment should become compulsory when operating according to Article 222 TFEU. In this way, the principle of solidarity experiences a step up over the principle of loyal cooperation and that of conditionality in emergency scenarios. This notwithstanding, a closer and comprehensive legal investigation suggests that the solidarity clause is characterised by a general and very vague scope which undermines its legal significance at the implementing level thus risking to keep the clause a dead letter rather than an enabling act. The final evaluation concerning the role of solidarity within EU disaster response law cannot be unidirectional. In fact, on the one hand, it is impossible not to acknowledge that the instruments established and improved in the course of time comply – at least in terms of intention – with the requirement to act in a spirit of solidarity expressed by the Treaties thereby fuelling the idea that the occurrence of serious disasters is an issue of common concern needing a common response. On the other hand, however, there is to say that the tools analysed are just partially satisfactory because of a number of inconsistencies having a structural and inherent nature, and legal gaps which still need to be addressed and filled in order to avoid slowing down the impulse to solidarity which inspired their establishment. Furthermore, in a legal respect, one could argue that the principle of solidarity governing the interventions for coping with disaster scenarios is just the engine which leads to the activation of these instruments or to the facilitation in the delivery of the assistance, without, however, having clear legal implications on the EU institutions and on EU Members. In more general terms, it seems that at present solidarity remains more an objective and guiding principle of the EU legal order thus simply reinforcing the cooperation required under the principle of loyalty from which more concrete rules derive. Future practice and the ECJ jurisprudence will be responsible to clarify the exact legal status of solidarity for the EU integration process.