CYIL 2014

ANA POLAK PETRIČ

CYIL 5 ȍ2014Ȏ

The right of assisting States to offer assistance corresponds to these facts and

also to the requirement of consent, which is based on the sovereignty of the affected

State.

The right to offer assistance thus does not mean a duty to accept it. Or,

in other words, the duty not to intervene in the internal affairs of another State

is a limit to the right to offer relief. The question however remains if the assisting

States have a responsibility or duty to provide assistance in the event of disasters.

Due to an assertive negative opinion of States on this issue, it is difficult to conclude

that the duty to provide assistance exists in international law.

The concepts

of international solidarity and the international protection of human rights are

discussed as a possible basis for such obligation, but it is impossible to prove that

the moral obligation which, deriving from these principles, has (yet) developed into

a legal one.

The duty to provide assistance via assisting actors would eventually and

in line with the right to humanitarian assistance become relevant in situations where

the affected State is unable to protect its citizens and the assistance from aboard is

necessary for their survival. Do other States and organizations in such a case have

the responsibility to protect all human beings whose life or basic human rights are

immediately threatened by natural disasters? The establishment of the duty to provide

assistance in such a case would lead to the recognition of the duty of the affected State

to accept offered assistance. The opposite solution, whereby third parties are obliged to

provide any assistance requested, but the affected State is entitled to refuse it, makes no

sense from the aspect of better protection of human rights.

The duty to provide

assistance is also problematic from the point of view of the sovereignty of the

assisting States, their capacities to offer assistance, as well as the formal rejection of

the concept of ‘responsibility to protect’ and the eventual ‘secondary responsibility’

of the international community in the event of natural disasters.

To conclude, so

The right of assisting States and organizations to offer assistance is referred to in the Kampala Convention

for the Protection and Assistance of Internally Displaced Persons in Africa [article 5 (6)], the Guiding

Principles on Internal Displacement [principle 25 (2)], the ILC Draft articles on the Protection of

Persons in the Event of Disasters (draft article 12), the Bruges Resolution on Humanitarian Assistance

[article IV (1)], and the Guiding Principles on the Rights to Humanitarian Assistance (principle 5).

States expressed their views in the UN GA Sixth Committee while discussing the ILC draft articles on

‘Protection of Persons in the Event of Disasters’. See, ILC, Fifth report on the protection of persons

in the event of disasters by Special Rapporteur, UN Doc A/CN.4/652. Compare with the Principles and

Rules of Red Cross and Red Crescent Disaster Relief, which declare that the International Red Cross has

a fundamental duty to provide relief to all disaster victims (principle 2.1.). In addition, the Code of Conduct

for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in

Disaster Relief provides that the International Red Cross Movement and non-governmental organizations

in disaster relief have an obligation to provide humanitarian assistance wherever it is needed (principle 1).

Note that this duty applies only to the Red Cross and non-State actors.

Bothe, M., Relief Actions, in: Bernhardt, R.,

Encyclopaedia of Public International Law

, No. 4., Elsevier

Science Publishers, Amsterdam, 1982, p. 175.

ILC, Sixty-third session, Provisional summary record of the 3105th meeting, UN Doc A/CN.4/

SR.3105, p. 7.

Implementing the responsibility to protect, Report of the Secretary-General, UN Doc A/63/677, para. 10.