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THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE …
The concept of sovereignty in its contemporary form does not entail only rights
on States but places obligations on them.
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‘Sovereignty as responsibility’ is not
a new concept in the international community and has received ample support
within the framework of the ‘responsibility to protect’ concept. The international
human rights covenants, UN practice and State practice itself have reinvented both
dimensions of sovereignty, so that now they are understood as embracing a dual
responsibility: externally, to respect the sovereignty of other States, and internally,
to respect the dignity and basic rights of all people within the State.
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Sovereignty
thus implies responsibility, and the primary responsibility for the protection of its
people lies with the State itself. As far as disasters are concerned, the principles of
sovereignty and non-intervention find their expression in the acknowledgement that
the affected State has the primary responsibility for the protection of persons on its
territory, as well as the requirement of consent of the affected State for the provision
of international humanitarian assistance. The right to humanitarian assistance is by
no means in direct conflict with State sovereignty. On the contrary, it is fully in line
with it, as sovereignty, which entails protection obligations towards States’ citizens,
places a duty on States not to refuse humanitarian assistance that is needed for the
survival and dignity of its population affected by a natural disaster. Taking into
account the development of international law, inspired by the principle of humanity
and the evolution of human rights law, absolutist interpretations, which would allow
States, hiding behind the principles of sovereignty and non-intervention, to refuse
the desperately needed provision of humanitarian assistance on its territory, are no
longer acceptable.
Ramcharan rightly claims that international law developed originally as a body
of norms concerning, and for the benefit of States and governments, and that even
today most of its basic premises, rules and principles are shaped by the inter-State
system characterizing contemporary international relations. However, in modern
times, there has been a rising global insistence that States, governments, institutions
and laws exist to serve the people.
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With this objective in mind, the norms of
international law are under persistent scrutiny with the aim to establish whether they
are conducive to the promotion and protection of the rights of the individual. It is
thus very difficult to argue today that, on the one hand, the affected State has full
discretion to deny or reject offered humanitarian assistance which would be beneficial
to the victims in need or that, on the other hand, the international community has
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A famous statement of ICJ Judge Álvarez is often cited: “
By sovereignty, we understand the whole body of
rights and attributes which a State possesses in its territory to the exclusion of all other States [...]. Sovereignty
confers rights upon States and imposes obligations on them.”
Corfu Channel case
(United Kingdom of Great
Britain and Northern Ireland v. Albania)
(Separate opinion of Judge Alvarez) ICJ Reports 1949, p. 43.
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The Responsibility to Protect, Report of the International Commission on Intervention and State
Sovereignty, Ottawa, 2001, p. 8.
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Ramcharan, B. G.,
The Right to Life in International Law
, Martinus Nijhoff Publishers, Dordrecht,
1985, p. 1.