CYIL 2014

ANA POLAK PETRIČ

CYIL 5 ȍ2014Ȏ

affected State should be exercised in a way that best contributes to the protection and

assistance in the event of disasters and aims at preserving life and dignity of victims

by also guaranteeing access of persons in need to humanitarian assistance.

The

affected State may thus not arbitrarily and unjustifiably reject an offer of humanitarian

assistance from abroad if the latter is offered in

bona fides

and is in line with the

humanitarian principles.

The recent instruments addressing humanitarian assistance operations reveal a trend

toward phrasing this duty of the affected State in the negative – that is, constraining

its freedom to arbitrarily refuse offers of humanitarian aid.

This reasoning is in line

with the interpretation of ‘Geneva Law’ applicable in wartime, assessing that even if

humanitarian assistance is to be provided in agreement with the Parties concerned,

such agreement must not be withheld on arbitrary grounds.

In addition, the rules

guiding the work of the IFRC foresee a possibility that the initiative to offer international

assistance is taken by the IFRC itself, even though the National Society of a stricken

country has not requested it, as is a usual practice. In this exceptional case, the National

Society considers such offers with urgency and goodwill, bearing in mind the needs of

the disaster victims and the spirit in which such offers are made.

In this context, a question remains as to what qualifies as ‘arbitrarily’ or ‘unjustifiably’

rejecting the consent to international humanitarian assistance. It seems that the

descriptive possibility would be to define it as

“if the refusal is likely to endanger the

lives and well-being and fundamental human rights of the victims of natural disasters”

Who is to assess and determine when the affected State’s conduct amounts to that of

being unable or unwilling to protect and assist persons in cases of a disaster or when

a refusal to accept international assistance is indeed arbitrary, especially in cases where

a State struck by a massive disaster selects from a range of offers, accepting some and

refusing others?

In the commentary to provisionally adopted draft article 11, the

ILC offers a few answers to this question. It states that the determination of whether

the withholding of consent is arbitrary or not must be determined on a case-by-case

basis. However, if an offer of assistance is made in accordance with humanitarian

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

Doc A/CN.4/643, paras. 51-52, 55, 57.

For example, such provisions are found in the Guiding Principles on Internal Displacement Principle

[principle 25(2)], the Resolution on the Protection of Human Rights and the Principle of Non-

intervention in Internal Affairs of States [article 5 (2)], the Bruges Resolution on Humanitarian

Assistance [article VIII (1)], and the ILC Draft articles on the Protection of Persons in the Event of

Disasters (draft article 11/2).

Sandoz, Y.,

et al.

, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions

of 12 August 1949, International Committee of the Red Cross, Geneva, 1987, p. 1479.

Principle 14.3. of the Principles andRules of RedCross andRedCrescent Disaster Relief, 21st International

Conference of the Red Cross.

Heath, B. J., Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work

of the International Law Commission,

International Law and Politics

, 2011, Vol. 43, p. 457.