Humanitarian Assistance in Cases of Emergency
- Judicial assistance — Regional co-operation — Right to life — NGOs (Non-Governmental Organizations) — Humanitarian intervention — Practice and procedure of international organizations
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1. Situations Requiring Humanitarian Assistance
1 It may seem illogical and absurd, but in its constant destructive activity of preparing and waging wars, mankind has also developed international legal rules regulating armed conflicts (Humanitarian Law, International). Some of these rules deal with the treatment of war victims: the wounded, sick and shipwrecked, prisoners of war, and the civilian population in armed conflict. In some situations, humanitarian assistance must be provided to these groups in order to help them to survive.
2 In addition to calamitous events in armed conflicts, fundamental human rights are often also endangered in peacetime, as a result of natural hazards—so-called natural disasters. Earthquakes, windstorms, tsunamis, torrential rains, floods, draughts, fires, famine, and epidemics are emergencies which require quick action in order to prevent or alleviate the sufferings of endangered people. The higher technical development of some States can contribute to foreseeing and preventing some disasters, and reducing their effects. On the other hand, scientific and technological discoveries have created a new category of disasters in addition to those of natural origin. Man-made disasters, such as chemical disasters or nuclear explosions, are also a constant threat to individuals, peoples, and even to peace in the world (see also Peace, Threat to). At any rate, the development of industry and negligence towards nature have apparently caused significant changes in the world climate (see also Climate, International Protection).
3 The best known examples of terrible disasters in our time are the Chernobyl tragedy in 1986 (see also Nuclear Energy, Peaceful Uses), and the earthquake and tsunami at the end of 2004, which caused the deaths of hundreds of thousands of people in 13 coastal States in the Indian Ocean. Yet, in the course of the drafting of this text the international community has been confronted with several major natural disasters and catastrophes caused by industrial negligence towards nature. The year 2010 started with the Haiti earthquake of catastrophic magnitude, and it continued with disastrous floods in Pakistan, China, Indonesia, and Benin. Industrial negligence towards the environment and human beings resulted in several accidents. A catastrophic explosion of an oil platform in the Mississippi Canyon caused the pollution of the marine environment of the Gulf of Mexico (Marine Environment, International Protection). The collapse of the roof of a copper-gold mine in Chile left 33 miners trapped underground for more than three months. Contrary to the happy end in Chile, many miners died in China and Ecuador. Furthermore, an alumina plant accident caused the deaths of several people and endangered the environment of Hungary and the watercourses of neighbouring countries (International Watercourses, Environmental Protection). Finally, in 2011, there was the disastrous earthquake and tsunami in Japan that led to the deaths of tens of thousands and also caused a serious incident in the nuclear plant of Fukushima, the consequences of which are hard to fathom at this point. However, all the disasters of the past may tomorrow be seen as minor accidents, as the proliferation of nuclear technology and armament in some States may lead to tragedies similar to those caused by the use of atomic weapons at the end of World War II (see also Nuclear Weapons and Warfare).
2. Humanitarian Assistance: Definition
4 All disasters of natural or technical origin in times of peace or war endanger life, health, and the physical integrity of human beings; the non-action of States can, in such situations, amount to violation of these fundamental human rights (Health, Right to, International Protection; Life, Right to, International Protection). The victims of such disasters need immediate help, for which the term humanitarian assistance has mostly been used. This term covers both the help provided from the affected State itself as well as the assistance coming from abroad. The United Nations (UN) and other forums and international instruments have used other terms as synonyms for humanitarian assistance, such as humanitarian and disaster relief assistance, emergency international assistance, as well as simply assistance, aid, or relief.
7 However, it is necessary to stress that the victims of disasters very often will need the above-mentioned goods and services not only in the immediate aftermath of a disaster. Therefore, humanitarian assistance has to be continued as long as it is indispensable for their survival and the fulfilment of the essential needs of the victims of the calamitous events. The reaction of the international community in cases of epidemics or disasters like the one in Chernobyl must continue so long as these disasters ravage the population in some parts of the world. That is why it is very important, as often stressed by the UN General Assembly (United Nations, General Assembly), to ensure a smooth transition from the emergency measures to rehabilitation, recovery, and development. In order to save lives, in some cases victims should leave the area—and sometimes even the territory of the affected State—where they previously lived (see also Internally Displaced Persons). Areas affected by earthquakes or floods, towns devastated by tornados, or countries where the economy has been destroyed by tsunamis, are not the appropriate environment for accommodating people suffering from famine or those without shelter. However, the rules on the possible long periods of time where some sort of humanitarian assistance is needed (see paras 8–11 below) should not be equalized with the general obligation of States to develop international co-operation (Development, International Law of) in order to diminish the poverty of the developing countries. Humanitarian assistance in emergency situations must be provided even to the most developed States.
B. Existing International Rules
1. Sources of Law
8 Contrary to humanitarian assistance in times of war, there is no coherent international legislation on humanitarian assistance in cases of emergency in peacetime. There are only encouraging examples of modern international legislation on some specific issues. Such is the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, adopted in 1998 (see also Telecommunications, International Regulation). Yet there are various sources wherefrom principles and rules applicable to humanitarian assistance in disasters in peacetime can be deduced. Therefore they vary in respect of their legal nature. Some of them are general principles or rules of international law on human rights, applicable, inter alia, to humanitarian assistance (see also General International Law [Principles, Rules and Standards]). Some special principles or rules represent general customary international law, and even peremptory norms of international law (Ius cogens), while others could be qualified as soft law, or even as proposals de lege ferenda. There are general, universal rules, as well as regional and sub-regional rules, and some of the rules are applicable only in the framework of intergovernmental or non-governmental organizations (‘NGOs’).
9 The basic principles on fundamental human rights—rights to life, health, physical integrity—contained in international instruments and in customary international law, create the general obligation to assist individuals whose fundamental human rights are endangered (see also Duty to Protect in Cases of Natural Disasters). Thus, there is no doubt that the right to life, proclaimed already in Art. 3 Universal Declaration of Human Rights (1948), and confirmed in Art. 6 (1) International Covenant on Civil and Political Rights (1966), is an erga omnes right, which means that it has to be respected and protected by any other individual and the authorities of all States (Obligations erga omnes). In situations of emergency, only the extending of humanitarian assistance can ensure the protection of that right.
10 There are provisions in some specific fields of international law which concern assistance to people whose basic human rights are endangered. In this sense, for example, some rules on assistance to endangered persons can be found in the UN Convention on the Law of the Sea of 1982. All ships have the duty to render assistance to any person found at sea in danger or distress (Art. 98 UN Convention on the Law of the Sea). As a consequence of this general duty, foreign ships exercising the right of innocent passage may stop and anchor in the territorial sea for the purpose of rendering assistance to persons, aircraft, or ships in distress (Art. 18 (2) UN Convention on the Law of the Sea).
11 There are some rules contained in the majority of internal legal systems which suggest the existence of general principles of law in the sense of Art. 38 (1) (c) Statute of the International Court of Justice (ICJ). Thus, penal codes of many States provide for the punishment of everybody who does not render assistance to persons whose life is in danger, eg at sea, on rivers and lakes, or as a consequence of a traffic accident.
(b) Intergovernmental Organizations
12 The purpose of some intergovernmental organizations or some of their bodies is precisely the organization and provision of assistance in certain dangerous situations or to certain endangered groups of people, eg the United Nations Children’s Fund (UNICEF) concerning the protection of children (see also Children, International Protection). That is why their constituent instruments, as well as many of their decisions, contain rules relevant not only for their own activities in respect of humanitarian assistance, but also important for the general understanding and regulation of humanitarian assistance. The UN has dealt with humanitarian assistance in respect of many disasters. The UN General Assembly has also adopted some texts containing general rules concerning humanitarian assistance, particularly dealing with assistance in the field of natural disasters. In 1984 it was suggested that a treaty should be concluded: the Draft Convention on Expediting the Delivery of Emergency Assistance was proposed to the UN United Nations, Economic and Social Council. Resolution 43/131 adopted by the UN General Assembly in 1988 dealt with the duties of States and international organizations in such situations. The guiding principles concerning all the phases of situations requiring humanitarian assistance in the field of natural disasters, and applicable across the whole UN system, are contained in the annex to Resolution 46/182, adopted by the UN General Assembly on 19 December 1991. However, in addition to this basic text, the UN General Assembly adopts resolutions summing up the problems and conclusions concerning humanitarian assistance in the field of actual natural disasters. Thus, for example, Resolution 64/250, adopted on 22 January 2010, is entitled Humanitarian Assistance, Emergency Relief and Rehabilitation in Response to the Devastating Effects of the Earthquake in Haiti.
13 Regional international organizations are also concerned with the necessity of being prepared and reacting speedily and effectively in areas affected by disasters. That is why the European States referred to this problem in the 1991 Document of the Moscow Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe. On 20 June 1996 the Council of the European Union adopted Regulation 1257/96 concerning humanitarian aid.
(c) Non-Governmental Organizations
14 In addition to the historical role of the International Committee of the Red Cross (ICRC) in the development of international humanitarian law, including the rules on humanitarian assistance in time of war, the ICRC, together with the International Federation of Red Cross and Red Crescent Societies (‘IFRC’), has also been an important actor in the development of the general principles of law concerning humanitarian assistance (see also Codification and Progressive Development of International Law). In 1969 in Istanbul, the XXIst International Conference of the Red Cross adopted The Principles and Rules for the Red Cross Disaster Relief, which were revised and elaborated in the following years; eg in 1973 the role of the League of Red Cross Societies—the predecessor of the IFRC—in disaster relief was defined. In 1993 the Council of Delegates of the International Red Cross and Red Crescent Movement adopted two important instruments: a Resolution on the Principles and Action in International Humanitarian Assistance and Protection; and the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief Programmes. Both documents were endorsed by the XXVIth International Conference of the Red Cross and Red Crescent in 1995. Due to all these activities, the 2002 Report of the UN Secretary-General on Strengthening the Co-ordination of Emergency Humanitarian Assistance of the United Nations considered that the ‘International Federation of Red Cross and Red Crescent Societies is taking the lead in the development of an international disaster response law’ (at para. 23).
(d) Associations of Experts
15 In addition to the comments and proposals of individual experts, their associations have also dealt with the legal norms applicable to assistance in natural disaster situations. Thus, at its 1976 conference in Madrid, the International Law Association (ILA) adopted a Resolution on Relief Missions, which in the opinion of the conference could have formed the basis of international agreements of universal or regional character on that subject. At its next meeting, the 58th Conference held in Manila 1978, the ILA drafted a different proposal: a model of a bilateral agreement that should be concluded between the affected State, and the assisting State or organization (see para. 23 below). A revised model agreement was adopted at the 59th ILA Conference, held in Belgrade in 1980.
16 In 1993 the Council of the International Institute of Humanitarian Law in San Remo adopted the Guiding Principles on the Right to Humanitarian Assistance, which apply to humanitarian assistance in times of peace and war. This text is of great value for specific aspects of our subject.
17 In some of its earlier resolutions, the IDI had already adopted provisions relevant for humanitarian assistance in cases of emergency. However, taking into account the importance of providing humanitarian assistance to all the groups of human beings whose fundamental rights are endangered in times of peace or war, and the scarce number and rather vague contents and legal nature of the applicable rules, the IDI decided in 1993 to establish a commission to deal with humanitarian assistance. Ten years later, at its 2003 Bruges Session, the IDI unanimously adopted the already mentioned Bruges Resolution.
2. Right to Humanitarian Assistance
18 It has been generally accepted that persons in cases of emergency have the right to request and receive humanitarian assistance, as such help is necessary in order to save their life, health, and dignity. The abandonment of the victims of disasters without humanitarian assistance constitutes a threat to these fundamental human rights, and therefore it is contrary to elementary considerations of humanity (see also Humanity, Principle of). Assistance may be sought by any member of the endangered group, local or regional authorities, the government of the affected State, and national or international organizations. In each particular case it is useful to determine the goods and services which would be useful to the victims.
19 Humanitarian assistance must be provided having in mind only humanitarian concerns, and impartiality must be assured in its provision (see also Neutrality, Concept and General Rules). It must be distributed without any discrimination on prohibited grounds, while taking into account the needs of the most vulnerable groups (see also Equality of Individuals). Due to the purpose of humanitarian assistance, attacks against personnel, installations, goods, or vehicles involved in a humanitarian assistance action are considered a serious breach of fundamental principles of international law.
3. Duties in Respect of Humanitarian Assistance
20 It is the duty of the authorities of the affected State or other territorial entities to take care of the victims of natural disasters and similar emergencies occurring in its territory. This duty of the affected State is based on its sovereignty, but also on the fact that it is best placed to appraise the needs of the situation, and to provide immediate and efficient assistance in the most appropriate and effective way. Any other de facto regime—parties, movements, factions—exercising jurisdiction or de facto control over the victims of a disaster, eg in case of disintegration of governmental authority in failed or failing States, has the same duty. The affected State—and other mentioned authorities—has primary responsibility for the organization, co-ordination, provision, and distribution of humanitarian assistance. However, this primary duty of the affected States does not concern only their governments, including all their central organs, agencies, and local authorities, but also those components of civil society which are able to help. This will particularly be the duty of national NGOs whose purpose is assistance in similar situations, such as the national Red Cross and Red Crescent societies.
21 Whenever the affected State is unable to provide sufficient humanitarian assistance to the victims on its territory, it must seek assistance from competent international organizations and/or from third States. However, sometimes the affected States, although unable themselves to help the victims, are reluctant to admit the vulnerability of their societies in the face of a disaster and their inability to cope with the effects thereof. Such behaviour is best characterized by the UN General Assembly, which considers that ‘the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitutes a threat to human life and an offence to human dignity’ (UNGA Res 43/131 preamble para. 8).
22 Nevertheless, there are cases where the State on whose territory or under whose control the victims are, will not be the only one obliged to provide humanitarian assistance. This will also be the duty of the State which bears some responsibility for a disaster which endangers the population of the affected State. Other third States, particularly those in the vicinity of the affected States, should, to the maximum extent possible, offer humanitarian assistance to the victims in the States affected by a disaster, except in cases when such assistance could result in seriously jeopardizing their own economic, social, or political conditions. Such an offer shall not be considered unlawful interference in the internal affairs (Domaine réservé) of the affected States or an unfriendly act, to the extent that it has an exclusively humanitarian character.
23 All States and organizations have the right to offer humanitarian assistance, and to provide it, subject to the consent of the affected State. However, some international organizations have been established precisely in order to help States and their populations in disasters associated with natural hazards. These organizations must offer humanitarian assistance in such situations in accordance with their statutory mandate and their own rules (see also International Organizations or Institutions, Internal Law and Rules). If their offer is accepted, the assisting States and international organizations—intergovernmental as well as non-governmental—must not interfere, in any manner whatsoever, in the internal affairs of the affected State. In organizing, providing, and distributing humanitarian assistance, they shall co-operate with the authorities of the affected States. The affected States shall facilitate the organization, provision, and distribution of humanitarian assistance rendered by other States and organizations. They shall accord them, among other things, overflight and landing rights, telecommunication facilities, and necessary immunities. Humanitarian assistance shall be exempted from any requisitions; import, export, and transit restrictions; and duties for relief materials and services. In order to provide these facilities relative to humanitarian assistance, States should adopt laws and regulations and conclude bilateral or multilateral treaties. Assisting States and organizations shall take the necessary steps in order to prevent misappropriation of materials and other grave abuses in the distribution of humanitarian assistance.
25 However, there is no consensus concerning the right of the UN and the international community in general to take necessary measures to save the victims of a disaster in cases where a government, for purely political reasons, refuses the offered humanitarian assistance. Although perhaps the lex lata of a responsibility to protect has not yet been sufficiently developed in this sense, the UN, other competent international organizations, and third States should be permitted to resort to various measures to induce the affected State to discontinue unjust refusal of humanitarian assistance, or of access to the victims. The use of force in such cases must be limited only to situations of extreme danger for the survival of the victims of disasters, and only to cases where there is no danger that the resistance of the authorities in the affected State to the imposed humanitarian assistance could cause even more suffering than the absence of the humanitarian assistance to the victims of the disaster. In such a case it cannot be claimed that the use of force is contrary to the UN Charter, as it protects the people exposed to gross and systematic human rights violations, as a combination of a disaster and the illegal attitude of the affected State. Nonetheless, such an intervention by the international community in order to save the victims in a case of emergency must be distinguished from humanitarian intervention, which is usually defined as the use of force in order to stop the violation of human rights of the people under the jurisdiction of the State against which the intervention is undertaken (see also Intervention, Prohibition of).
C. International Organizations and the Provision of Humanitarian Assistance
26 A wide range of international organizations—universal and regional—as well as NGOs are involved in providing humanitarian assistance in cases of emergency. The first and best known organization in the field is the ICRC, which is at the origin of the International Red Cross and Red Crescent Movement. Under Art. 5 Agreement on the Organization of the International Activities of the Components of the International Red Cross and Red Crescent Movement of 26 November 1997 (‘Seville Agreement’;  38 IRRC 159), the IFRC acts as the lead agency in managing international operational activities in the event of natural disasters occurring in peacetime.
27 In 1927, an intergovernmental organization—the International Relief Union—was established in order to help States affected by disasters. Unfortunately, although related to the League of Nations and the ICRC, this organization was never active. Since the very beginning of its work, the UN has been called upon on numerous occasions to provide assistance to countries stricken by natural forces and human activities, such as floods, earthquakes, forest fires, droughts, hurricanes, industrial catastrophes, etc. Various UN bodies have been active in improving international co-ordination in the handling and distribution of relief assistance in such situations. After some other bodies had previously been entrusted with this task, in 1998 the UN Secretary-General created the Office for the Co-ordination of Humanitarian Affairs (‘OCHA’). The primary function of OCHA is to co-ordinate the delivery of humanitarian assistance to the victims of disasters and other emergencies. This co-ordination is carried out mainly through the Inter-Agency Standing Committee (‘IASC’), which was created in 1991. The IASC is chaired by the Emergency Relief Co-ordinator, who has been assigned the status of UN Under-Secretary-General for Humanitarian Affairs. Four UN entities have primary roles in providing protection and assistance in humanitarian crisis: UNICEF; the United Nations Development Programme (UNDP); the World Food Programme (WFP); and the United Nations High Commissioner for Refugees (Refugees, United Nations High Commissioner for [UNHCR]). For the same purpose the UN co-operates with the governments of the States Members, regional organizations, NGOs, and the UN Specialized Agencies (United Nations, Specialized Agencies), such as the Food and Agriculture Organization of the United Nations (FAO), the International Labour Organization (ILO), the World Health Organization (WHO), and the World Meteorological Organization (WMO).
28 Our primary duty—to analyse the efforts of the international community in formulating principles and rules on humanitarian assistance in case of emergency—brings us to the conclusion that further efforts in clarifying and developing international law in the field are necessary. The reason for such a conclusion is not only the state of international law itself, but much more the constant progress of the number and variety of cases of emergency, mostly caused by the irresponsible attitude of humankind towards nature. This claim concerns particularly the industrialized countries, while according to a report issued by UNDP in February 2004, an overwhelming 98.2% of those killed as a result of natural disasters live in developing countries (at 13–15). This is just one of the arguments in favour not only of organizing immediate assistance to the victims, but also of developing more effective strategies to prevent emergencies from arising.
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