CYIL 2014

ANA POLAK PETRIČ

CYIL 5 ȍ2014Ȏ

rights in disaster situations. They base their argumentation on the fact that sovereignty

and territorial integrity, which are the guiding principles in the coordination of

humanitarian assistance, also entail duties of a State towards its citizens, including that

of protection. Therefore, the principles of sovereignty and non-intervention cannot

serve as an excuse to act in a manner that denies victims access to assistance. Thus, if

the affected State cannot discharge its obligation to provide timely relief to its people

in distress, it must have an obligation to seek outside assistance.

The opposition to

the existence of the right to humanitarian assistance in international law and practice

bases its conclusions on the recognition that this right could imply the ‘right to

impose humanitarian assistance’ on the affected State that does not want it, which

would be in conflict with the principles of sovereignty and non-intervention, and the

need for consent of the affected State for the provision of humanitarian assistance on

its territory. The right to humanitarian assistance could be therefore easily abused and

give rise to double standards.

As a general legal principle, State sovereignty and the

principle of consent should prevail, and all States have a legitimate right to accept or

refuse humanitarian assistance and to choose the donor according to their interests.

This clearly shows that there is no uniform view on the question on the existence of

the right of victims to humanitarian assistance in the event of natural disasters. According

to article 38 of the Statute of the International Court of Justice, international law can

be established from various sources. As any other legal rule, the right to humanitarian

assistance draws its substance from all of them, with some offering more material

and substance than others. The intention of the next chapter is to briefly inspect and

identify each individual source of international law that could confirm the existence

of this right.

3.1 The existing legal regime (de lege lata)

Legally binding expression of the right to humanitarian assistance during natural

disasters is not altogether absent. Non-binding documents have long been calling

for the recognition of this right, and today we are witnessing the first examples of

modern legal instruments referring to the right to humanitarian assistance while

aiming to protect the lives and other basic human rights of the most vulnerable

individuals. An explicit reference to the right to humanitarian assistance, which was

until recently virtually non-existent in ‘hard law’ and multilateral treaties, is included

in the Convention for the Protection and Assistance of Internally Displaced Persons

in Africa (Kampala Convention).

This is the first legally binding instrument in the

world that, although limited as regards the claimant to internally displaced persons,

not only unambiguously refers to the right to protection and assistance but takes

a clearly progressive approach towards the obligations of States in ensuring this right.

Article 5 (9) of the Convention reads as follows:

ILC, Report on the Work of its sixtieth session, UN Doc A/63/10, paras. 241, 243-244.

ILC, Provisional summary record of the 2980th meeting, UN Doc A/CN.4/SR.2980, pp. 10-11.

Available at: