79 / 532
THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE …
principles and no alternate sources of assistance are available, there would be a strong
inference that a decision to withhold consent is arbitrary.
87
To conclude, in case the affected State is unable to provide adequate protection
and humanitarian assistance for the survival of the victims of natural disasters on
its territory and when the offered humanitarian assistance from abroad is provided
solely for humanitarian purposes and in accordance with humanitarian principles, the
affected State has, in this strictly limited context, in fact,
the duty to accept humanitarian
assistance from abroad. This would be a necessary conclusion following the recognition
of the existence of the right to humanitarian assistance. When the victims of natural
disasters are in need and their survival is at stake, it is the affected State that has
the primary responsibility to provide their protection. If this is not possible due to
the overwhelming consequences of a disaster, because of this specific right of the
victims the affected State has a duty to seek assistance and may not withhold its
consent to proper, strictly humanitarian assistance without a good, justified reason.
The argument in favour of this duty of the affected State is the obligation to promote
the respect for human rights, including the right to life, the right to an adequate
standard of living and the right to food, and to take steps with a view to achieving
progressively their full realization. This implies an obligation to accept outside relief
where otherwise the enjoyment of these rights is put into jeopardy.
88
Offers of assistance are an expression of solidarity, based on the principles of
humanity, neutrality, impartiality and non-discrimination. Therefore, humanitarian
assistance which affects neither the sovereignty of the affected State nor its primary
role in the direction, control, coordination and supervision of such relief and assistance
should not be considered interference in the domestic affairs of States and can be
effectively channelled to the victims only with the cooperation of all involved actors.
As often referred to, the International Court of Justice noted that
“strictly humanitarian
aid to persons or forces in another country [...] cannot be regarded as unlawful intervention,
or as in any other way contrary to international law.”
89
The Court further clarified what
it meant by ‘strictly humanitarian aid,’ explaining that if the provision of humanitarian
assistance is not to be considered an intervention in the internal affairs, not only
must it be limited to the purposes hallowed in the practice of the Red Cross
to prevent and alleviate human suffering and to protect life and health and
to ensure the respect for the human being, but it must also, and above all, be
given without discrimination to all in need.
90
The interest of the international
community in the protection of persons in the event of a disaster should be
viewed as complementary to the primary responsibility of the affected State and
as an expression of solidarity and cooperation.
87
ILC, Report on the Work of its sixty-third session, UN Doc A/66/10 and Add.1, p. 268.
88
Bothe, M., Relief Actions, in: Bernhardt, R.,
Encyclopaedia of Public International Law
, No. 4. Elsevier
Science Publishers, Amsterdam, 1982, p. 176.
89
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
(Judgment, Merits) ICJ Reports 1986, para. 242.
90
Ibid
., para. 243.