The Duty to Provide Humanitarian Assistance in the Event of Disaster is increasingly the subject of study and action, by governments, international organizations and scholars. The Institut de droit international has issued a Resolution on this topic in 2003 (the Bruges Resolution on Humanitarian Assistance), and the International Law Commission (ILC) has been working on draft articles on the Protection of Persons in the Event of Disaster since 2007 and has already adopted 21 draft articles on first reading. Furthermore, in 2014 the ILC decided to transmit the draft articles adopted on first reading to governments and several international organizations (the ICRC) for comments and observations.
The topic raises questions of sovereign responsibility to those individuals affected by the disaster: both the responsibility of the authorities in the affected state and the responsibility of other states.
We are grateful to Judge Kenneth Keith of the International Court of Justice for sharing with us his “Natural Disasters and International Law – A Preliminary Note” which he presented at the Tokyo Session of the Institut de droit international (September 2013). This preliminary note describes and evaluates the emerging efforts to progressively develop the law in this area.
As Judge Keith emphasizes, this topic addresses deep notions of state sovereignty in relation to two questions: first, the extent to which the affected state may refuse foreign assistance from reaching the victims, and second (and more germane to this research project), the extent to which foreign states have an obligation to provide assistance. Judge Keith refers to literature drawing support for state obligations from the writing of Emer de Vattel (“assisting those facing famine is so central to humanity that no civilized nation would fail entirely to do so”), to the UN Charter, as well as to the “disputed question […] whether there is a right to humanitarian assistance in emergency situations.” In this context it is Judge Keith writes (par. 26):
“The International Conference of the Red Cross and Red Crescent (including the State parties to the Geneva Conventions as well as National Societies, the ICRC and the IFRC), meeting in 1995, provides support to those would find such a right in the human rights instruments by declaring that it ‘. . . is a fundamental right of all people to both offer and receive humanitarian assistance.’ The Institut resolution similarly declares that the victims of disaster are entitled to request and receive humanitarian assistance.”
The above two questions have been addressed by the ILC draft articles. Instead of directly recognizing the human right to assistance, draft articles 13, 14 and 15 acknowledge and reaffirm the “duty” of the affected “by virtue of its sovereignty” “to ensure the protection of persons and provision of disaster relief and assistance on its territory.” It is in the commentary that the duty is explained as based, inter alia, on the individual right to life (p. 120). The text continues to indicate that “[t]he provision of external assistance requires the consent of the affected State” but that this consent “shall not be withheld arbitrarily.”
The extent to which foreign states have an obligation to provide assistance is mainly addressed by draft articles 5-9. While stopping short of explicitly referring to a duty of extraterritorial assistance, these articles stipulate that “[p]ersons affected by disasters are entitled to respect for their human rights” (article 6), while article 8 recalls the “[d]uty to cooperate.”
Selected Documents and Links