CYIL 2014

ANA POLAK PETRIČ

CYIL 5 ȍ2014Ȏ

preparation, such as the ILC set of draft articles, ascertainable State practice and,

lastly, on doctrinal writings of eminent legal experts and legal institutions.

The right to humanitarian assistance is to be considered in the first place

a necessary consequence of and based and justified on the universally recognized

principles of humanity and human dignity.

Various fundamental principles play a major role in practice and law of international

humanitarian assistance, some providing its foundation, while others placing

constraints on it. With the aim to ensure humanitarian objectivity, activities and

operations of all actors providing disaster assistance and relief must take place in

accordance with the fundamental humanitarian principles, which lie at the heart

of all humanitarian assistance efforts, namely the principles of humanity, neutrality

and impartiality, as well as, closely linked to the former, the principle of non-

discrimination.

In addition, other relevant fundamental principles of international

law are highly pertinent to the provision of disaster relief, particularly the principles

of solidarity and cooperation as a

conditio sine qua non

to successful relief operations

and the principle of sovereignty as an essential foundation of international relations.

The general principles of international law inspire not only the interpretation

and the application of the legal norms but also the law-making process. As asserted

by Trindade, they may pave the way for the construction of a new

corpus juris

a new domain of international law that requires regulation.

This modus should be

used in the case of disaste

r response law, especially because of the absence of a clear-

cut recognition of the right to humanitarian assistance in a universally binding legal

document. Today it is impossible to imagine the further development and evolution

of international law on any other foundation than that of the human conscience and

basic values, such as humanity and the respect for human dignity, which are shared by

the entire international community and humankind as a whole. In its contemporary

sense, humanity and the respect for human dignity represent the cornerstone of the

protection of persons in international law and are therefore to be used as a standard and

necessary inspiration in the creation, interpretation or development of laws and rules

in the humanitarian space, as is the case with the right to humanitarian assistance in

the event of disasters.

The principle of humanity is the basic principle of international law, particularly

in the fields of humanitarian law, human rights law and refugee law. By virtue of this

principle, every human person should be respected by the simple fact of belonging

It is a fact that, while identifying possibilities for the progressive development of new rules of international

law, it is necessary that this work be based on existing law. Progressive development cannot be initiated

from the ‘point zero’ but should rather be understood as the further development of the existing rules.

The importance of humanitarian principles is recognized in provisionally adopted draft article 6 of

the ILC on the ‘Protection of Persons in the Event of Disasters’. ILC, Protection of Persons in the

Event of Disasters, Texts and titles of draft articles 6, 7, 8 and 9 provisionally adopted by the Drafting

Committee, UN Doc A/CN.4/L.776.

Trindade, C., International Law for Humankind: Towards a New

Jus Gentium

, Martinus Nijhoff

Publishers, Leiden, 2010, p. 65.