67 / 532
THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE …
lata)
. In addition, despite the undisputed extensive humanitarian practice of States,
it is still premature to affirm that they uniformly believe that this practice is required
from them by law and that the right to humanitarian assistance of the victims of
natural disasters is an established rule of customary international law.
3.2 The right to humanitarian assistance as progressive development
of international law (de lege ferenda)
The presented analysis shows that no individual existing source of international
law leads to a clear confirmation and recognition of the right to humanitarian
assistance. However, the development, recent use and interpretation of the existing
sources of international law on disaster response do show an encouraging trend of
a necessary and appropriate call for progressive development in this context. It would
be difficult to deny that States are generally expected, by both their own citizens
and the international community, to provide assistance and protection to people
affected by disasters. If governments refuse international assistance in the face of
widespread avoidable suffering, they could face considerable international political,
general public and media pressure to accept external assistance.
44
Since the codification of disaster response law is scattered and dispersed and the
practice of States and humanitarian actors is not uniform, progressive development
is crucial in this area. The lack of proof of the existence of the right to humanitarian
assistance in traditional sources of international law suggests that the process of
de
lege ferenda
, which allows for the identification of rules “
which have not yet been
regulated by international law or in regard to which the law has not yet been sufficiently
developed in the practice of States,”
45
presents
the only possible way to establish and
recognize the right to humanitarian assistance. The significance of
de lege ferenda
in this area has also been duly documented by the International Law Commission.
Before starting its work on the ‘Protection of Persons in the Event of Disasters’,
the ILC expected it to be based more likely on
lex ferenda
than
lex lata,
particularly
given the evident paucity of relevant State practice and a challenge to identify in the
relevant sources suitable principles in this field.
46
Below several arguments are offered with the aim to contribute to the recognition
of the right to humanitarian assistance of victims in the event of natural disasters as
a way of progressive development of international law. They are founded on the analysis
of existing law in disaster response, non-binding documents, already adopted or in
44
Harvey, P. and Harmer, A., International Dialogue on Strengthening Partnership in Disaster Response:
Bridging national and international support, Background Paper 1, Humanitarian Outcomes, London/
New York, 2011, p. 20.
45
Article 15 of the Statute of the International Law Commission, UN GA Res. 174 (II) on Establishment
of an International Law Commission.
46
UN GA Sixth Committee, Sixty-third Session, Summary Record of the 22nd meeting, UN Doc
A/C.6/63/SR.22, p. 7.