CYIL Vol. 5, 2014

THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE … – the Resolution on Humanitarian Assistance 36 (article II, paras. 1 and 2), – the IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters 37 (guideline B.1.1), – the Guiding Principles on Internal Displacement 38 (principle 3); – the Doha Declaration, 39 – the Resolution on the Recognition of the Duty to Provide Humanitarian Assistance and the Right to This Assistance. 40 These non-binding documents define the right to humanitarian assistance as a fundamental right enjoyed by all people of all countries. Expressions of the recognition of the right to humanitarian assistance are clear and unconditional, but, although presenting a high level of authority and, in some events, consensus of States, they lack legally binding character which enables the direct confirmation of such a right as an international legal rule. The right to humanitarian assistance could also be established as an expression of customary international law. It is undisputed that providing and offering humanitarian assistance is the general practice of States and humanitarian organizations; however, the question remains whether this practice includes the evidence of States’ belief that they are required by law to act that way – opinio juris, which is a necessary element for the creation of customary rules. Is international humanitarian assistance rather than possessing any legal characteristics essentially a matter of non-binding comity, courtesy and good-neighbourly relations? The International Court of Justice in the North Sea Continental Shelf Cases stated that the frequency or even habitual character of acts is not in itself enough for a proposed rule to evolve into a principle of customary international law. For the right to humanitarian assistance to exist, the provision of humanitarian assistance must be an evidence of a belief that such assistance is rendered obligatory by a rule of law or a human right. The minor presence of the right to humanitarian assistance in universal international treaties and human rights instruments weighs against this conclusion. Also the adopted UN General Assembly resolutions do not offer comfort, since none of them explicitly recognizes the right to humanitarian assistance in peacetime. Despite asserting that the abandonment of the victims of natural disasters without humanitarian assistance constitutes a threat to human life and an offence to human dignity, they 36 Resolution on Humanitarian Assistance, Institute of International Law, Sixteenth Commission, Bruges Session. 37 IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (IASC Operational Guidelines), Inter-Agency Standing Committee. 38 Guiding Principles on Internal Displacement, Office for the Coordination of Humanitarian Affairs (OCHA). 39 Doha Declaration on the Priorities for Progressive Development of International Law in the UN Decade of International Law to Meet the Challenges of the 21st Century, International Legal Issues Arising Under the United Nations Decade of International Law. 40 Resolution on the Recognition of the Duty to Provide Humanitarian Assistance and the Right to this Assistance, Conference on Humanitarian Law and Morals.