Over the last decades, many hypotheses have emerged to reconcile State sovereignty with the necessity to protect people in the event of a disaster, by resorting, inter alia, to human rights instruments90. Indeed, disaster-like situations
“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”91. As a consequence, as strongly stressed by the
UN General Assembly, “the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitutes a threat to human life and an offence to human dignity”92.
The Covenant on Civil and Political Rights states that no one shall be arbitrarily deprived of his life and notes that this right may not be suspended even in case of a “public emergency that threatens the life of the nation” – which has been recognised to include “a natural catastrophe”93. The Human Rights Committee has
thus interpreted the right to life as having both a positive and negative dimension, implying that States have an obligation to respect and above all to ensure respect for the right to life of all the individuals within their territory and subject to their jurisdiction94.
90 See, J. Delbruck, “International Protection of Human Rights and State Sovereignty”, in Indiana
Law Journal, Vol. 57, Issue 4, 1982, pp. 567 – 578.
91 See, Institute de Droit International, Sixteenth Commission Resolution – Humanitarian
Assistance, Bruges Session, 2 September 2003, para. 2.
92 See, UN General Assembly, Resolution A/RES/45/100, cit., Preamble, para. 5.
93 See, International Covenant on Civil and Political Rights, Art. 6(1), 16 December 1966 and Human Rights Committee, General Comment No. 29, art. 4, 24 July 2001. The obligation is also established in other international legal instruments, as the Preamble to the 1948 Universal Declaration of Human Rights; the 1989 Convention on the Rights of the Child (Article 6); the 1953 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 14); the 1981 African Charter on Human and People’s Rights (Article 1) and the 1969 American Convention on Human Rights - “Pact of San José” (Articles 1 and 2).
94 The obligation to respect and above all to ensure respect of the right to life of all the individuals is also established in other international legal instruments, as the Preamble to the 1948 Universal Declaration of Human Rights; the 1989 Convention on the Rights of the Child (Article 6); the 1953 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 14); the 1981 African Charter on Human and People’s Rights (Article 1) and the 1969
41 For what concerns socio-economic rights, the Covenant on Economic, Social, and Cultural Rights articulates, inter alia, the right “to an adequate standard of living (...) including adequate food, clothing and housing” as well as “the right to be free from hunger,” and the right to “the highest attainable standard of physical and mental health”95. In the General Comment No. 12 of 1999, the Committee on
Economic, Social and Cultural Rights stated that:
“the right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate)means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters”96.
The acknowledgement of this complex and substantial set of needs and rights which may acquire relevance in the event of a natural or man-made disaster has led to discuss on the opportunity to recognise a distinct right to humanitarian assistance in this kind of situations which would reframe States’ prerogatives in the field of disaster response.
A number of international humanitarian organizations, like the Red Cross Movement, have struggled for its recognition, by affirming that “the right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian
American Convention on Human Rights - “Pact of San José” (Articles 1 and 2). In addition, see, W. Kalin, R. C. Williams, K. Koser and A. Solomon (eds.), Incorporating the Guiding Principles
on Internal Displacement into Domestic Law: Issues and Challenges, American Society of International Law, 2010, pp. 53-62.
95 See, International Covenant on Economic, Social and Cultural Rights, Arts. 11 and 12, 16 December 1966.
96See, Committee on Economic, Social and Cultural Rights, General Comment No.12, Right to
42 principle which should be enjoyed by all citizens of all countries”97. In addition, a
high number of soft-law instruments expressly mention the right under examination, from the 1987 Resolution approved during the Première Conférence
Internationale de Droit et Morale Humanitaire98, to the Principles on
Humanitarian Assistance adopted by the San Remo International Institute of Humanitarian Law in 199299, the 1994 Code of Conduct for International Red
Cross and Red Crescent Movements100 and the 2003 Bruges Resolution on
Humanitarian Assistance101. In particular, the latter proposed a definition of the
concept of humanitarian assistance by stating that it “means 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 fulfilment of the essential needs of the victims of disasters”102. Moreover, some
recent human rights treaties go in the direction of affirming such a right for victims of natural disasters. Clear outputs in this regard are represented by Article 11 of the 2006 International Convention on the Rights of Persons with Disabilities103 which does affirm a right for internally displaced persons to seek
humanitarian assistance and protection, and the African Charter on the Rights and
97 See, International Federation of the Red Cross and Red Crescent Societies, The Code of Conduct
for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief, 1992, Principle 1.
98 See, Première Conférence Internationale de Droit et Morale Humanitaire, Résolution sur la
reconnaissance du devoir d’assistance humanitaire et du droit à cette assistance, 28 January 1987. 99 See, San Remo International Institute of Humanitarian Law,“Principes Directeurs Concernant le Droit à l’Assistance Humanitaire”, in International Review of the Red Cross, No. 804, 1993, pp. 548-554.
100 See, International Federation of the Red Cross and Red Crescent Movements, Code of Conduct
for International Red Cross and Red Crescent Movements and Non-Governmental Organizations in Disaster Relief, cit., Principle 1.
101 See, Institute de Droit International, Sixteenth Commission Resolution – Humanitarian
Assistance, cit., Art. 2.
102 See, Institute de Droit International, Sixteenth Commission Resolution – Humanitarian
Assistance, cit., Art. I.1.
103 See, United Nations Convention on the Rights of Persons with Disabilities, UN Doc. A/RES/61/106, 13 December 2006, Art. 11.
43 Welfare of the Child ensures humanitarian protection to internally displaced children in the wake of a disaster104.
Nonetheless, the number of multilateral treaties making explicit reference to a right to humanitarian assistance is very limited and, with reference to customary law, despite States practice shows their willingness to render assistance, the existence of a right for victims of natural disasters to receive humanitarian aid is still far away. Thus, the de lege lata existence of a right to humanitarian assistance within international disaster law is not supported by general treaty or customary recognition and still remains unclear105. As summarized by the UN Secretary
General “notwithstanding assertions of the existence of a generalised right to humanitarian assistance, such position, to the extent that is it imposes a duty on the international community to provide assistance is not yet definitely maintained as a matter of positive law at the global level”106. Accordingly, while a right to
humanitarian assistance is well-anchored in hard law when it relates to civilians in situations of armed conflicts, the same cannot be said for those victims of disasters in times of peace. Even in the absence of a right to humanitarian assistance per se, there is no question that humanitarian assistance enjoys the support of the illustrated broad human rights law which makes it possible to create a corpus of positive obligations linked to humanitarian assistance applicable both on the affected State and on third countries.
In general terms, the respect of those human rights upon which the notion of humanitarian assistance is based implies that the disaster-affected States maintain the peremptory obligation to respect, protect and fulfill all these rights, by
104 See, African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49, 11 July 1990, Art. 23 - Refugee Children, para. 4. As examples of international conventions recalling the right to humanitarian assistance it is worthy to mention also the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention on
Internal Displacement), Art. 9.2(b).
105 For a further analysis of the debate on the right to humanitarian intervention, see M. J. Domestici-Met, “Aspects juridiques récents de l’assistance humanitaire”, in Annuaire français de
droit international, Vol. 35, 1989, pp. 117-148; R. J. Hardcastle, A. T. L. Chua, “Humanitarian assistance: towards a right of access to victims of natural disasters”, in International Review of the
Red Cross, Vol. 38, 1998, pp. 589-609.
106 See, UN Secretary General, Protection of Persons in the Event of Disasters, Memorandum
44 abstaining from any discrimination founded on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”107. In a more specific way, the duty to take positive actions to protect
the rights of the victims implies that States have a duty to ensure that the population affected by a crisis is adequately supplied with goods and services essential for its survival108. By consequence, if they are unable to do so or their
efforts fail, the national authorities should allow third parties to provide the required relief supplies and not refuse bona fide offers. The European Court of Human Rights has also delivered some significant judgements in this respect by stating that the victims of a disaster may invoke vis-á-vis their State a right to protection deriving from the fundamental right to life109. Similarly, third countries
would have a duty to ensure the respect of the victims’ rights by responding to requests of assistance and deploying the resources that they have at disposal in order to provide adequate support to the victims.
In a broader perspective, some scholars have also invoked the doctrine of the Responsibility to Protect (RtoP)110 in order to establish a duty to protect the
107 See, International Covenant on Civil and Political Rights, Art. 2(1); International Covenant on Economic, Social and Cultural Rights, Art. 2(2).
108 See, ex multis, W. Kalin, “The Human Rights Dimension of Natural or Human-Made Disasters”, in German Yearbook of International Law, 2012, pp. 137-143.
109 See, European Court of Human Rights, Öneryildiz v Turkey, n. 48939/99, 30 November 2004;
Budayeva et al. v Turkey, n. 15339/02, 20 March 2008; Kolyadenko et al. v Russia, n. 17423/05, 28 February 2012; Hadzhiyska v Bulgaria, n. 20701/09, 15 May 2012.
110 See, International Commission on Intervention and State Sovereignty (ICISS), The
Responsibility to Protect, Ottawa, December 2001. The full text of the Report is available at www.iciss.ca/pdf/Commission-Report.pdf. The Responsibility to Protect doctrine sets on the one hand that each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and on the other one that the international community, through the United Nations, has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity when the national authorities manifestly fail in their responsibilities of protection. In the aftermath of the Nargis Cyclone some States and commentators have invoked the RtoP doctrine in order to legitimate an external intervention for protecting the affected population. However, such a possibility has been widely rejected because of, inter alia, the divergence of opinions on the circumstances in which the RtoP could be invoked: to include the occurrence of disasters within the scope of application of this doctrine could set a precedent for legitimating undue external interventions. For comments on the RtoP, see, ex multis, L. Boisson de Chazournes, L. Condorelli, “De la responsabilité de protéger, ou d’une nouvelle parure pour une notion déjà bien établie”, in Revue générale de droit international public, no. 1,
45 affected population thereby implicitly pushing for the acknowledgement of a duty to seek and to provide for assistance, but its limited scope of application has prevented RtoP from being considered of any help in clarifying the issue of humanitarian intervention in the event of a catastrophe. Moreover, in order to justify a possible external intervention without the consent of the affected State, more than one commentator has proposed to resort to the existence of erga omnes obligations which, according to the Barcelona Traction case111, relate to concerns
of the whole international community thus legitimating States to intervene in their protection112. This is also revealed in the content of the Maastricht Principles on
Extra Territorial Obligations of States that, despite having a not binding nature, represent a very important soft-law instrument to defining and clarifying the positive extraterritorial obligations of States on the protection of human rights113.
One of the key conceptual foundation of the Maastricht Principles is that the human rights obligations of States are not applicable only within their own borders but extend also to extraterritorial situations. The acknowledgement of such extraterritorial obligations would be as well a practical way to comply with
2006, pp. 11-18; C. Stahn, “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?”, in American Journal of International Law, Vol. 101, 2007, pp. 99-120. For comments on the potential application of the RtoP on occasions of disasters, see R. Barber, “The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study”, cit.; T. R. Saechao, “Natural Disasters and the Responsibility to Protect: From Chaos to Confusion”, in Brooking
Journal of International Law, Vol. 32, 2007, pp. 663-706. For a general comment, see L. Boisson de Chazournes, “Responsibility to protect: reflecting solidarity?”, in Wolfrum R., Kojima C. (eds),
Solidarity: a structural principle of international law, cit., pp. 93–109.
111 See, International Court of Justice, Barcelona Traction, Light and Power Company Ltd (Second Phase), ICJ Report 3, 1970.
112 For comments on the nature of the erga omnes obligations, see ex multis, P. Picone, “Obblighi Erga Omnes tra passato e futuro”, in Rivista di diritto internazionale, Vol. 98, 2015, pp. 1081- 1108.
113See, Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, 28 September 2011. For comments on their legal impact, see M. Salomon, “The Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights: An Overview of Positive ‘Obligations to Fulfil’”, in EJIL, 2012, available at https://www.ejiltalk.org/the-maastricht-principles-on-extraterritorial-obligations-of- states-in-the-area-of-economic-social-and-cultural-rights-and-its-commentary-an-overview-of- positive-obligations-to-fulfil/.
46 the elementary considerations of humanity that have been recognised by the ICJ in the Corfu Channel case114.
In order to verify whether such a human rights-based approach has somehow remodelled the principle of State sovereignty thereby establishing duties of solidarity which translate into specific duties of assistance, it is now appropriate to go through the work of the International Law Commission (hereinafter ILC) on the protection of persons in the event of a disaster adopted on second reading in 2016.
3. The work of the ILC on the “Protection of Persons in the Event of