CYIL 2014

THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE …

the well-being of its citizens, including during times of emergencies, such as natural

disasters. Therefore, when disasters strike and aid is needed, governments should be

expected to call for outside assistance from all parties without any discrimination.

The affected State is therefore not free to act as it pleases – its response to natural

disasters is limited to specific rights and duties. The affected State which cannot

discharge its obligation to provide adequate and timely relief to its people in distress

has a duty to seek outside humanitarian assistance. This duty is limited to situations in

which the magnitude or duration of a disaster exceed the limits of the affected State’s

response capacity. This conclusion is fully drawn from the primary responsibility

of the affected State, which is first and foremost obliged to ensure the protection

of persons and the provision of disaster relief and assistance on its territory. When

the affected State itself is unable to provide adequate assistance, taking into account

a number of human rights which are implicated in disasters, particularly the right to

life, recourse to international assistance is a necessary element in the fulfilment of the

State’s obligations towards individuals.

In addition, the duty of the affected State to seek assistance when its national

capacities are overwhelmed can be regarded as a specification of the duty to cooperate

among States and as a realization of the right of the victims to humanitarian assistance.

The latter served as the basis for article 5 (6) of the Kampala Convention for the

Protection and Assistance of Internally Displaced Persons in Africa, which is the

only multilateral international treaty that explicitly refers to this obligation by

requiring that States, when their available resources are inadequate for the provision

of sufficient protection and assistance to internally displaced persons,

“cooperate in

seeking the assistance of international organizations and humanitarian agencies, civil

society organizations and other relevant actors.”

The duty of the affected State to seek

assistance from abroad when its national capacities are overwhelmed and when it

is unable to protect and assist the victims of natural disasters on its territory is also

explicitly stated in numerous nonbinding documents.

This duty is also consistent

with the obligations placed upon States in situations of armed conflicts under

international humanitarian law.

It is by no means disputed that the consent of the affected State is generally

a prerequisite for international humanitarian assistance to be dispatched and that

the sovereignty and territorial integrity of the affected State as well as the principle

of non-intervention should be respected in disaster relief activities. Usually in most

cases of disasters States allow external assistance; however, this does not necessarily

imply a legal obligation to do so. The affected State also has the right to refuse an

offer. However, this right is not unlimited. Limitations are the result of the duty of

States to cooperate in good faith with one another and the fact that sovereignty of the

Bruges Resolution on Humanitarian Assistance (article III (3)), IDRL Guidelines for the Domestic

Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance

[guideline 3(2)], ILC Draft articles on the Protection of Persons in the Event of Disasters (draft article 10).

For example article 59 of the Fourth Geneva Convention.