CYIL Vol. 5, 2014

ANA POLAK PETRIČ CYIL 5 ȍ2014Ȏ affected State should be exercised in a way that best contributes to the protection and assistance in the event of disasters and aims at preserving life and dignity of victims by also guaranteeing access of persons in need to humanitarian assistance. 82 The affected State may thus not arbitrarily and unjustifiably reject an offer of humanitarian assistance from abroad if the latter is offered in bona fides and is in line with the humanitarian principles. The recent instruments addressing humanitarian assistance operations reveal a trend toward phrasing this duty of the affected State in the negative – that is, constraining its freedom to arbitrarily refuse offers of humanitarian aid. 83 This reasoning is in line with the interpretation of ‘Geneva Law’ applicable in wartime, assessing that even if humanitarian assistance is to be provided in agreement with the Parties concerned, such agreement must not be withheld on arbitrary grounds. 84 In addition, the rules guiding the work of the IFRC foresee a possibility that the initiative to offer international assistance is taken by the IFRC itself, even though the National Society of a stricken country has not requested it, as is a usual practice. In this exceptional case, the National Society considers such offers with urgency and goodwill, bearing in mind the needs of the disaster victims and the spirit in which such offers are made. 85 In this context, a question remains as to what qualifies as ‘arbitrarily’ or ‘unjustifiably’ rejecting the consent to international humanitarian assistance. It seems that the descriptive possibility would be to define it as “if the refusal is likely to endanger the lives and well-being and fundamental human rights of the victims of natural disasters” . Who is to assess and determine when the affected State’s conduct amounts to that of being unable or unwilling to protect and assist persons in cases of a disaster or when a refusal to accept international assistance is indeed arbitrary, especially in cases where a State struck by a massive disaster selects from a range of offers, accepting some and refusing others? 86 In the commentary to provisionally adopted draft article 11, the ILC offers a few answers to this question. It states that the determination of whether the withholding of consent is arbitrary or not must be determined on a case-by-case basis. However, if an offer of assistance is made in accordance with humanitarian 83 For example, such provisions are found in the Guiding Principles on Internal Displacement Principle [principle 25(2)], the Resolution on the Protection of Human Rights and the Principle of Non- intervention in Internal Affairs of States [article 5 (2)], the Bruges Resolution on Humanitarian Assistance [article VIII (1)], and the ILC Draft articles on the Protection of Persons in the Event of Disasters (draft article 11/2). 84 Sandoz, Y., et al. , Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva, 1987, p. 1479. 85 Principle 14.3. of the Principles andRules of RedCross andRedCrescent Disaster Relief, 21st International Conference of the Red Cross. 86 Heath, B. J., Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of the International Law Commission, International Law and Politics , 2011, Vol. 43, p. 457. 82 ILC, Fourth report on the protection of persons in the event of disasters by Special Rapporteur. UN Doc A/CN.4/643, paras. 51-52, 55, 57.