CYIL Vol. 5, 2014

THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE … The concept of sovereignty in its contemporary form does not entail only rights on States but places obligations on them. 74 ‘Sovereignty as responsibility’ is not a new concept in the international community and has received ample support within the framework of the ‘responsibility to protect’ concept. The international human rights covenants, UN practice and State practice itself have reinvented both dimensions of sovereignty, so that now they are understood as embracing a dual responsibility: externally, to respect the sovereignty of other States, and internally, to respect the dignity and basic rights of all people within the State. 75 Sovereignty thus implies responsibility, and the primary responsibility for the protection of its people lies with the State itself. As far as disasters are concerned, the principles of sovereignty and non-intervention find their expression in the acknowledgement that the affected State has the primary responsibility for the protection of persons on its territory, as well as the requirement of consent of the affected State for the provision of international humanitarian assistance. The right to humanitarian assistance is by no means in direct conflict with State sovereignty. On the contrary, it is fully in line with it, as sovereignty, which entails protection obligations towards States’ citizens, places a duty on States not to refuse humanitarian assistance that is needed for the survival and dignity of its population affected by a natural disaster. Taking into account the development of international law, inspired by the principle of humanity and the evolution of human rights law, absolutist interpretations, which would allow States, hiding behind the principles of sovereignty and non-intervention, to refuse the desperately needed provision of humanitarian assistance on its territory, are no longer acceptable. Ramcharan rightly claims that international law developed originally as a body of norms concerning, and for the benefit of States and governments, and that even today most of its basic premises, rules and principles are shaped by the inter-State system characterizing contemporary international relations. However, in modern times, there has been a rising global insistence that States, governments, institutions and laws exist to serve the people. 76 With this objective in mind, the norms of international law are under persistent scrutiny with the aim to establish whether they are conducive to the promotion and protection of the rights of the individual. It is thus very difficult to argue today that, on the one hand, the affected State has full discretion to deny or reject offered humanitarian assistance which would be beneficial to the victims in need or that, on the other hand, the international community has 74 A famous statement of ICJ Judge Álvarez is often cited: “ By sovereignty, we understand the whole body of rights and attributes which a State possesses in its territory to the exclusion of all other States [...]. Sovereignty confers rights upon States and imposes obligations on them.” Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania) (Separate opinion of Judge Alvarez) ICJ Reports 1949, p. 43. 75 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, Ottawa, 2001, p. 8. 76 Ramcharan, B. G., The Right to Life in International Law , Martinus Nijhoff Publishers, Dordrecht, 1985, p. 1.