Sources of IDL: focus on customary international law
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Date
2025-08-11
Authors
Cubie, Dug
Journal Title
Journal ISSN
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Publisher
Brill
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Abstract
It can be argued that modern international disaster law owes its genesis to the call by the International Federation of Red Cross and Red Crescent Societies (IFRC) in 2000 to ‘design practical legal tools to strengthen disaster response around the world’. In proposing the creation of an ‘international disaster response law’, the IFRC suggested that the operational application of the non-binding Sphere Standards could be an example of the development of customary international law relating to humanitarian assistance and response. The IFRC noted that the Sphere Handbook provides ‘explicit standards’ for humanitarian professionals, which in turn raised a series of interesting legal questions. For example, how much field use or State acceptance would be needed to support a claim that the Sphere Standards were part of customary international law? Perhaps more fundamentally, how would such a claim of rights be enforced? There is clearly extensive international practice in the provision of humanitarian assistance following disasters, and increasing practice in promoting disaster risk reduction, prevention and preparation (as evidenced by the non-binding Hyogo and Sendai Frameworks), as well as in the fields of disaster recovery and rehabilitation. However, is there any corresponding legal basis (i.e. opinio juris) behind the actions of States and other humanitarian actors in the field of disaster prevention, response and recovery? Alternatively, do States act simply on the basis of diplomatic and friendly relations, or even self-interest? As part of our continuing series of short articles on the sources of international disaster law,7 this contribution will examine the current work of the International Law Commission (ILC) on the identification of customary international law, and consider how this might be applied to the field of international disaster law. Analogies will be made to the extensive work undertaken on customary international humanitarian law by the International Committee of the Red Cross (ICRC), as well as related branches of law such as international refugee and forced displacement law. The contribution will conclude with some reflections on the potential crystallisation of customary international law in the context of disasters.
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Keywords
IDL , International disaster law , Customary international law , Humanitarian assistance , Disaster risk reduction
Citation
Cubie, D. (2025) 'Sources of IDL: focus on customary international law', Yearbook of International Disaster Law, 6(1), pp. 515-525. https://doi.org/10.1163/26662531_00601_032
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© 2025, Koninklijke Brill BV, Leiden.