CYIL Vol. 5, 2014

THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE … country. 66 There is no doubt that a State has an obligation to ensure the respect for the right to life of individuals within its territory and within its prerogatives. This, inter alia , implies an obligation of the State to take active measures and all necessary steps for the fulfilment of the right to life also in the aftermath of natural disasters. ‘Taking all necessary steps’ means that the State has the duty to prevent disasters, to prepare for disasters within its territory, to take direct measures to minimize suffering immediately following a disaster, and above all to seek international humanitarian relief when national efforts are insufficient to preserve lives of victims of natural disasters. The right to humanitarian assistance is thus a necessary element of the right to life with dignity, encompassing the right to an adequate standard of living, including adequate food, water, clothing, shelter and the requirements of good health, which are expressly guaranteed under international law. Although many basic human rights applicable in the event of natural disasters are generally considered subject to ‘progressive realization’ over time, it is considered that the affected State, by arbitrarily rejecting available international humanitarian assistance that would be essential for the survival and well- being of the victims in the event of natural disasters, violates these rights. In addition, efforts to establish the existence of the right to humanitarian assistance in the event of natural disasters can be influenced by the fact that this right is widely recognized in the specialized context of armed conflicts. International humanitarian law provides a useful analogy in inferring the rules governing response to natural disasters. The universally accepted legal rules of ‘Geneva Law’ explicitly deal with the scope and provision of the right to humanitarian assistance. It should be noted that there is no absolute agreement that a customary norm has so far crystallized in international law of armed conflict to establish a general right to humanitarian assistance which would apply to all situations. 67 In the case of occupied territories such a right does exist and an occupying power has the unconditional obligation to enable relief consignments to reach civilian population in need. For other cases of armed conflicts it must be taken into account that, although humanitarian assistance is to be provided in agreement with Parties concerned, such agreement must not be withheld on arbitrary grounds. The commentaries to the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II) note: “The fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place.

66 Ramcharan, B. G., The Right to Life in International Law , Martinus Nijhoff Publishers, Dordrecht, 1985, pp. 6, 17. 67 Dinstein, Y., The Right to Humanitarian Assistance , available at: http://ihl.ihlresearch.org/index. cfm?fuseaction=page. viewPage&pageID=808&nodeID=2