CYIL 2014

ANA POLAK PETRIČ

CYIL 5 ȍ2014Ȏ

full discretion to reject requests for humanitarian assistance by the affect State for the

benefit of its civilian population.

The right to humanitarian assistance cannot be properly fulfilled if it is not

supplemented with corresponding rights and duties of various actors in disaster

relief. They complement one another and constitute a legal framework which

is necessary for the exercise of the right of victims to humanitarian assistance

and at the same time represents a necessary consequence of the right itself.

As already mentioned, it is the primary responsibility of the affected State to

ensure the realization of the right to humanitarian assistance to people under its

jurisdiction. This is in fact an expression of the fundamental principles of sovereignty,

territorial integrity and equality of States. There are two general consequences of this

rule. Firstly, the internal aspect relates to the recognition that the affected State bears

the primary responsibility and duty to protect disaster victims and ensure humanitarian

relief on its territory and has the primary role in facilitating, coordinating and

overseeing relief operations on its territory. Secondly, the external aspect of the primary

responsibility of the affected State implies that international relief operations, their

initiation and conduct require the consent of the affected State.

Consequently, other

assisting entities cannot intervene unilaterally; instead they have the duty to cooperate

with the affected State. It must be underlined that all major international documents

in the field of disaster response confirm that it is the affected State which bears the

primary duty and responsibility to take care of the victims of disaster in its territory

and that the requirement of the consent of the affected State is a prerequisite to

international humanitarian assistance offered from abroad.

However, this sovereign authority of the affected State is by no means absolute.

The principle of State sovereignty cannot be seen as an ‘excuse’ for the affected State

to deny victims access to assistance, especially by unjustifiably rejecting international

disaster assistance offered when it is unable to provide it on its own. No legitimate

State in the contemporary world can object to the claim that it is responsible for

ILC, Third report on the protection of persons in the event of disasters by Special Rapporteur. UN Doc

A/CN.4/629, pp. 27-28.

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

[article 5 (1)], Guiding Principles on Internal Displacement (principle 3), UN General Assembly

Resolution 43/131 (OP 2), UN General Assembly Resolution 45/100 (OP 2), UN General Assembly

Resolution 46/182 (Annex, para. 4), Bruges Resolution on Humanitarian Assistance [article III (1)],

Guiding Principles on the Rights to Humanitarian Assistance (principle 4), IDRL Guidelines for the

Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance

(guideline 3 [1 and 3)], ILC Draft articles on the Protection of Persons in the Event of Disasters [draft

article 9 (1)].

Framework Convention on Civil Defence Assistance (article 3 (a, b)), Tampere Convention on the

Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations [article 4

(5)], UN General Assembly Resolution 46/182 (Annex, para. 3.), Bruges Resolution on Humanitarian

Assistance [article IV (2)], IDRL Guidelines for the Domestic Facilitation and Regulation of International

Disaster Relief and Initial Recovery Assistance (guideline 3 [1, 3)], ILC Draft articles on the Protection

of Persons in the Event of Disasters [draft article 11 (1)].