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THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE …
– the Resolution on Humanitarian Assistance
36
(article II, paras. 1 and 2),
– the IASC Operational Guidelines on the Protection of Persons in Situations
of Natural Disasters
37
(guideline B.1.1),
– the Guiding Principles on Internal Displacement
38
(principle 3);
– the Doha Declaration,
39
– the Resolution on the Recognition of the Duty to Provide Humanitarian
Assistance and the Right to This Assistance.
40
These non-binding documents define the right to humanitarian assistance
as a fundamental right enjoyed by all people of all countries. Expressions of the
recognition of the right to humanitarian assistance are clear and unconditional, but,
although presenting a high level of authority and, in some events, consensus of
States, they
lack legally binding character which enables the direct confirmation of
such a right as an international legal rule.
The right to humanitarian assistance could also be established as an expression of
customary international law. It is undisputed that providing and offering humanitarian
assistance is the general practice of States and humanitarian organizations; however,
the question remains whether this practice includes the evidence of States’ belief
that they are required by law to act that way –
opinio juris,
which is a necessary
element for the creation of customary rules. Is international humanitarian assistance
rather than possessing any legal characteristics essentially a matter of non-binding
comity, courtesy and good-neighbourly relations? The International Court of Justice
in the
North Sea Continental Shelf Cases
stated that the frequency or even habitual
character of acts is not in itself enough for a proposed rule to evolve into a principle
of customary international law. For the right to humanitarian assistance to exist,
the provision of humanitarian assistance must be an evidence of a belief that such
assistance is rendered obligatory by a rule of law or a human right.
The minor presence of the right to humanitarian assistance in universal international
treaties and human rights instruments weighs against this conclusion. Also the
adopted UN General Assembly resolutions do not offer comfort, since none of
them explicitly recognizes the right to humanitarian assistance in peacetime. Despite
asserting that the abandonment of the victims of natural disasters without humanitarian
assistance constitutes a threat to human life and an offence to human dignity, they
36
Resolution on Humanitarian Assistance, Institute of International Law, Sixteenth Commission, Bruges
Session.
37
IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (IASC
Operational Guidelines), Inter-Agency Standing Committee.
38
Guiding Principles on Internal Displacement, Office for the Coordination of Humanitarian Affairs
(OCHA).
39
Doha Declaration on the Priorities for Progressive Development of International Law in the UN
Decade of International Law to Meet the Challenges of the 21st Century, International Legal Issues
Arising Under the United Nations Decade of International Law.
40
Resolution on the Recognition of the Duty to Provide Humanitarian Assistance and the Right to this
Assistance, Conference on Humanitarian Law and Morals.