32 Right to Humanitarian Assistance

Dr. Aneesh V. Pillai

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Introduction

Every natural disasters and armed conflict affects individuals adversely. Across the globe, millions of people are displaced from their homes, and many living in crowded camps due to natural disasters and armed conflicts. The impacts of both man made and other natural disasters are severe and will lead to displacement, loss of basic necessities, and extreme poverty, etc. The main victims are civilians, often the poorest and most vulnerable among them, mainly living in developing countries. Thus the emergencies caused by armed conflict, other human-made crises, and environmental hazards cause immense suffering. For those who do not immediately lose their lives, many will lose loved ones, experience catastrophic damage to their homes and livelihoods, witness the destruction of their communities, and suffer the dangers and humiliations of displacement and destitution. For them, the aftermath of a catastrophe becomes a daily struggle for survival, for dignity and for a future. This situation can be remedied to a large extend if there is an aid or assistance from people or country who is able to extend such assistance. After the Second World War the world community realized the importance to have a framework for providing assistance to needy country and people during natural disasters and armed conflict. This has resulted in the development of right to humanitarian assistance as a part of fundamental human right.

Learning outcomes

After reading this module students will be able to understand:

  • Concept and Meaning of the right to Humanitarian Assistance.
  • How the right to Humanitarian Assistance is a human right.
  • How the right to Humanitarian Assistance is a group right.

Right to Humanitarian Assistance: Concept and Meaning

“Humanitarian assistance” is not defined by any of the major humanitarian or human rights instruments. Generally the term humanitarian assistance will apply to items essential to survival such as food, water, medical supplies, clothing, and related “non-food items” (e.g., water containers, cooking utensils, soap, etc.) or the means to immediately obtain any such items (e.g., cash assistance). It will also apply to essential services such as emergency medical care. Access to humanitarian assistance must also necessarily include not only access to relief goods, but also access to and for the personnel and equipment, such as vehicles and telecommunications or information technology items, needed to carry out humanitarian operations. Thus humanitarian assistance comprises of providing goods and services essential for the survival of those being directly affected by man-made disasters, including armed conflict, or natural disasters. It may comprise material aid and/or the services of personnel.

The human right to humanitarian assistance could be defined as the human right of the individuals and groups affected by a natural or similar disaster and inadequately supplied by the affected state, to receive humanitarian assistance by the international community. The latter should have an obligation to provide assistance, on the basis of the consent given by states by adhering to the treaty recognizing and regulating the right. Humanitarian assistance should be carried out in the respect of the agreed modalities and in compliance with the fundamental humanitarian principles of humanity, neutrality and impartiality4. Such a right may be invoked in peacetime, when natural disasters occur. More significantly, it may also be claimed in the course of armed conflicts (either international or internal).

 

A Resolution adopted by the Institute of International Law in 2003 defines Humanitarian assistance as all acts, activities and the human and material resources for the provision of goods and services of an exclusively humanitarian character, indispensable for the survival and the fulfillment of the essential needs of the victims of disasters. In this definition the term “Goods” includes foodstuffs, drinking water, medical supplies and equipment, means of shelter, clothing, bedding, vehicles, and all other goods indispensable for the survival and the fulfillment of the essential needs of the victims of disasters; this term never includes weapons, ammunition or any other military material. The term “Services” means the means of transport, tracing services, medical services, religious, spiritual and psychological assistance, reconstruction, de-mining, decontamination, voluntary return of refugees and internally displaced persons, and all other services indispensable for the survival and the fulfillment of the essential needs of the victims of disasters.

 

Likewise the term “Disaster” means calamitous events which endanger life, health, physical integrity, or the right not to be subjected to cruel, inhuman or degrading treatment, or other fundamental human rights, or the essential needs of the population, whether of natural origin (such as earthquakes, volcanic eruptions, windstorms, torrential rains, floods, landslides, droughts, fires, famine, epidemics), or man-made disasters of technological origin (such as chemical disasters or nuclear explosions), or caused by armed conflicts or violence (such as international or internal armed conflicts, internal disturbances or violence, terrorist activities). The term “Victims” refers groups of human beings whose fundamental human rights or whose essential needs are endangered.

Right to Humanitarian Assistance: A Human Right

 

Traditionally at international law humanitarian assistance was considered as a charitable operation. However with the adoption of the Convention establishing the International Relief Union in 1927 this attitude has changed and the countries started viewing it as a process for upholding human dignity. The basic purpose of IRU was to collect documentsof all kinds of natural disasters and provide organized relief for civilian victims7. The right to humanitarian assistance is not expressly recognized by major international human rights instruments. However, this right can trace its root from various provisions in such international instruments.

 

Among the various provisions of human rights instruments which can be taken into account in the context of right to humanitarian assistance are right to life, health, food and shelter and to special care for children and the sick. The Universal Declaration on Human Rights, 1948 opens by recognizing the inherent dignity and inalienable rights of all human beings. The Declaration proclaimed itself to be a common standard of achievement for all peoples and nations. Article 22 of the Declaration states that,‘everyone is entitled to the economic, social and cultural rights which are indispensable for his dignity and the free development of his personality’. Such rights are to be secured both through national efforts and international cooperation. States set the standards and by States are ensured the rights which are laid down. These general provisions of the Declaration would themselves support important principles relevant to humanitarian assistance, including the principle that one State should assist another in emergency; that States should prepare for disasters with their territory and take measures designed to minimize suffering following a disaster; and that State should accept relief after the occurrence of a disaster if their own resources are inadequate.

 

The most basic of all human rights is the right to life. Article 3 of the UDHR states that, ‘everyone has the right to life, liberty and security of person. Article 6(1) of the ICCPR states more specifically that,‘every human being has the inherent right to life. This right shall be protected by law’9. Specifically, the Covenant on Civil and Political Rights holds, “No one shall be arbitrarily deprived of his life,” and it notes that this right may not be suspended even amid a “public emergency that threatens the life of the nation.” The right to life imposes an obligation to the State to ensure some minimal standards for its enjoyment. Hence, when the minimum standards of right to life are threatened or lost due to natural or man made disasters, it is the duty of the State to provide assistance to individuals to their right to life in its real meaning. This obligation of the State supports the claim of individual’s right to humanitarian assistance.

 

Further, the Covenant on Economic, Social, and Cultural Rights expressly guarantees the right “to an adequate standard of living including adequate food, clothing and housing”; “the right to be free from hunger,”; and the right to “the highest attainable standard of physical and mental health.” Moreover, the Covenant requires that a state take steps to realize these rights “to the maximum of its available resources”. The Committee on Economic, Social and Cultural Rights has stated that the drafters meant this to include not only domestic resources but also international assistance. With respect to the right to food, the Committee specifically articulated an obligation to accept foreign aid.

 

The right to humanitarian assistance has been expressly recognized as a human right by few human rights instruments. The four Geneva Conventions of 1949, the two Additional Protocols of 1977 and the one Additional Protocol of 2005 recognizes right to humanitarian assistance during armed conflict. The right to humanitarian assistance can be found in article 23 of the African Charter on the Rights and Welfare of the Child, 1999. It states that, ‘States Parties to the present Charter shall take all appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law shall, whether unaccompanied or accompanied by parents, legal guardians or close relatives, receive appropriate protection and humanitarian assistance in the enjoyment of the rights set out in this Charter and other international human rights and humanitarian instruments to which the States are Parties’.

 

Likewise, Article 11 of the International Convention on the Rights of Persons with Disabilities, 2005 also provides that, ‘States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters’. Further, It should be remembered here that, there is no similar recognition of a human right to humanitarian assistance is spelled out in a universally binding and general treaty.

 

It is to be noted here that right to humanitarian assistance has also been recognized by a number of soft-law instruments at international level. Some of the important them are: the Resolution of the First International Conference of Humanitarian Law and Moral (1987); the Principles on Humanitarian Assistance adopted by the San Remo International Institute of Humanitarian Law (1992); the Code of Conduct for International Red Cross and Red Crescent Movements (1994); theMohonk Criteria (1995); the Guiding Principles on Internal Displacement (2001); and the Institute of International Law Resolution on Humanitarian Assistance (2003).

Right to Humanitarian Assistance: A Group Right

 

Right to Humanitarian assistance means human right of the individuals and groups affected by a natural or man made disaster and inadequately supplied by the affected state, to receive humanitarian assistance. The international law imposes an obligation to the nations and international community to guarantee and protect the right without any form of discrimination. Generally an individual is the holder of a human right; however the holder of right to humanitarian assistance is a group of people. Hence this right is categorised as a third generation or group rights. Everyone has a right to receive humanitarian assistance necessary to sustain life and dignity in disasters from governmental or other organizations. The principles of non-intervention and state sovereignty cannot be a bar to humanitarian assistance. It is generally, short-term and focuses on immediate relief and facilitating the early return to normal lives and livelihoods. The purpose of such assistance is saving lives, alleviating suffering, maintaining human dignity and supporting sustainable recovery from emergencies.

Criticism

 

The recognition of right to humanitarian assistance as a human right or group right has been criticized by various authors. One of the serious criticisms is that any intervention for providing humanitarian assistance at the time of an armed conflict is a violation of state sovereignty and hence the international community should not interfere. This follows from the principle of sovereignty, which can be traced back to the Peace of Augsburg in 1555 where it was convened that the ruler of a State would also determine the country’s religion, a principle which in its extension effectively had the consequence of excluding any outside interference in the relations with the prince and his subjects. This principle was subsequently reaffirmed and further elaborated in the treaties of the Peace of Westphalia in 1648 to embrace not only religious but also political matters. In the 20th century, the principle of sovereignty was expressly incorporated in Art 2(1) of the Charter of the United Nations. This criticism lacks its force due to the fact that the Arts 2(7) and 25 together with Chapter VII of the UN Charter, the member States of the UN agreed to subject their sovereignty to the Security Council in matters that threaten international peace and security. Thus international community can intervene in a State’s internal affairs and such interference should be considered as a violation of state sovereignty. This was expressly stated by International Court of Justice in the case of Nicaragua v. United States, wherein the Court held that ‘giving humanitarian aid is not an unlawful intervention and there can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.’ The right to give assistance includes a continuum of action of varying degrees of intrusion with military intervention at one extreme and mere condemnation at the other. If humanitarian assistance takes the form of military intervention, the use of force is required to be necessary and proportional.’ However, possible abuses of the right to give humanitarian assistance remain a concern.

 

Another major criticism is that the right to humanitarian assistance is a concept that developed States forged to legitimize their intervention towards poor countries. However, this criticism is not of any force due to the fact that a number of developing countries supported the United Nations Resolutions on the right to humanitarian intervention. The interventions in Bosnia and Somalia, for instance, were requested by many Muslim Nations and African States. It is not reasonable to think that they are simply agents of the great powers with permanent seats in the Security Council. Another criticism is that intervention occurs only in situations in which the US, France and Great Britain have interest. The recent interventions in the form of humanitarian assistance prove this criticism is wrong.

Summary

 

After reading this module we understood the right to humanitarian assistance, the concept and meaning of the right of humanitarian assistance and humanitarian assistance as a group and as a human right.

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Reference

  1. TanjaSchuemer-Cross, Ben Heaven Taylor, The Right to Survive: The Humanitarian Challenge for the Twenty-first Century, Oxfam International, UK, 2009, p.11.
  2. David Fisher, “The Right to Humanitarian Assistance” in Walter Kälin, Rhodri C. Williams, et al. Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges, The American Society of International Law, Washington, 2010, p.47.
  3. Heike Spieker, “The Right to Give and Receive Humanitarian Assistance”, available a www.springer.com/cda/ content/…/cda…/9783642164545-c1.pdf., visited on 20.6.2015.
  4. Maria Giovanna Pietropaolo, “Humanitarian Assistance from the Standpoint of the Human Rights of the Disaster-Affected Individuals: Present and Future Perspectives”, available athttp://www.prix-henry-dunant.org/sites/prixhd/doc/2013Recherche.pdf, visited on 20.6.2015.
  5. Y. Dinstein, “The Legal Consequences of Infringing upon the Right to Humanitarian Assistance”, available at http://unesdoc.unesco.org/images/0011/001124/112481Eo.pdf, visited on 20.6.2015.
  6. Peter Macalister-Smit, International Humanitarian Assistance, Martinuss Nijhoff Publishers, UK, 1985
  7. Maria Giovanna Pietropaolo, “Humanitarian Assistance from the Standpoint of the Human Rights of the Disaster-Affected Individuals: Present and Future Perspectives”, available at http://www.prix-henry-dunant.org/sites/prixhd/doc/2013Recherche.pdf, visited on 20.6.2015.
  8. Lois E. Fielding, “Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy, 1995 Duke Journal of Comparative & International Law, Vol. 5:329.