CYIL Vol. 5, 2014

THE EXISTANCE OF THE RIGHT TO HUMANITARIAN ASSISTANCE … principles and no alternate sources of assistance are available, there would be a strong inference that a decision to withhold consent is arbitrary. 87 To conclude, in case the affected State is unable to provide adequate protection and humanitarian assistance for the survival of the victims of natural disasters on its territory and when the offered humanitarian assistance from abroad is provided solely for humanitarian purposes and in accordance with humanitarian principles, the affected State has, in this strictly limited context, in fact, the duty to accept humanitarian assistance from abroad. This would be a necessary conclusion following the recognition of the existence of the right to humanitarian assistance. When the victims of natural disasters are in need and their survival is at stake, it is the affected State that has the primary responsibility to provide their protection. If this is not possible due to the overwhelming consequences of a disaster, because of this specific right of the victims the affected State has a duty to seek assistance and may not withhold its consent to proper, strictly humanitarian assistance without a good, justified reason. The argument in favour of this duty of the affected State is the obligation to promote the respect for human rights, including the right to life, the right to an adequate standard of living and the right to food, and to take steps with a view to achieving progressively their full realization. This implies an obligation to accept outside relief where otherwise the enjoyment of these rights is put into jeopardy. 88 Offers of assistance are an expression of solidarity, based on the principles of humanity, neutrality, impartiality and non-discrimination. Therefore, humanitarian assistance which affects neither the sovereignty of the affected State nor its primary role in the direction, control, coordination and supervision of such relief and assistance should not be considered interference in the domestic affairs of States and can be effectively channelled to the victims only with the cooperation of all involved actors. As often referred to, the International Court of Justice noted that “strictly humanitarian aid to persons or forces in another country [...] cannot be regarded as unlawful intervention, or as in any other way contrary to international law.” 89 The Court further clarified what it meant by ‘strictly humanitarian aid,’ explaining that if the provision of humanitarian assistance is not to be considered an intervention in the internal affairs, not only must it be limited to the purposes hallowed in the practice of the Red Cross to prevent and alleviate human suffering and to protect life and health and to ensure the respect for the human being, but it must also, and above all, be given without discrimination to all in need. 90 The interest of the international community in the protection of persons in the event of a disaster should be viewed as complementary to the primary responsibility of the affected State and as an expression of solidarity and cooperation. 87 ILC, Report on the Work of its sixty-third session, UN Doc A/66/10 and Add.1, p. 268. 88 Bothe, M., Relief Actions, in: Bernhardt, R., Encyclopaedia of Public International Law , No. 4. Elsevier Science Publishers, Amsterdam, 1982, p. 176. 89 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Judgment, Merits) ICJ Reports 1986, para. 242. 90 Ibid ., para. 243.