CYIL Vol. 5, 2014

THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE … the well-being of its citizens, including during times of emergencies, such as natural disasters. Therefore, when disasters strike and aid is needed, governments should be expected to call for outside assistance from all parties without any discrimination. The affected State is therefore not free to act as it pleases – its response to natural disasters is limited to specific rights and duties. The affected State which cannot discharge its obligation to provide adequate and timely relief to its people in distress has a duty to seek outside humanitarian assistance. This duty is limited to situations in which the magnitude or duration of a disaster exceed the limits of the affected State’s response capacity. This conclusion is fully drawn from the primary responsibility of the affected State, which is first and foremost obliged to ensure the protection of persons and the provision of disaster relief and assistance on its territory. When the affected State itself is unable to provide adequate assistance, taking into account a number of human rights which are implicated in disasters, particularly the right to life, recourse to international assistance is a necessary element in the fulfilment of the State’s obligations towards individuals. In addition, the duty of the affected State to seek assistance when its national capacities are overwhelmed can be regarded as a specification of the duty to cooperate among States and as a realization of the right of the victims to humanitarian assistance. The latter served as the basis for article 5 (6) of the Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa, which is the only multilateral international treaty that explicitly refers to this obligation by requiring that States, when their available resources are inadequate for the provision of sufficient protection and assistance to internally displaced persons, “cooperate in seeking the assistance of international organizations and humanitarian agencies, civil society organizations and other relevant actors.” The duty of the affected State to seek assistance from abroad when its national capacities are overwhelmed and when it is unable to protect and assist the victims of natural disasters on its territory is also explicitly stated in numerous nonbinding documents. 80 This duty is also consistent with the obligations placed upon States in situations of armed conflicts under international humanitarian law. 81 It is by no means disputed that the consent of the affected State is generally a prerequisite for international humanitarian assistance to be dispatched and that the sovereignty and territorial integrity of the affected State as well as the principle of non-intervention should be respected in disaster relief activities. Usually in most cases of disasters States allow external assistance; however, this does not necessarily imply a legal obligation to do so. The affected State also has the right to refuse an offer. However, this right is not unlimited. Limitations are the result of the duty of States to cooperate in good faith with one another and the fact that sovereignty of the 80 Bruges Resolution on Humanitarian Assistance (article III (3)), IDRL Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance [guideline 3(2)], ILC Draft articles on the Protection of Persons in the Event of Disasters (draft article 10). 81 For example article 59 of the Fourth Geneva Convention.