MINISTERIO DE SALUD

According to the landmark UN General Assembly Resolution 46/182 of 1991, “each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence, the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory”76_{. It is}

interesting to note that in this quote the General Assembly used two different terms in order to explain the different tasks of the victim State. On the one hand, the affected State has been conferred with the full responsibility to protect the victims in its territory, that means to attribute to the victim State the greater burden that cannot be delegated to others. On the other hand, each State has the

primary role in managing humanitarian assistance at any stage77_.

The General Assembly confirmed this orientation in two following Resolutions where it asserted that the affected States have the “primary role in the initiation, organization, co-ordination and implementation of humanitarian assistance within

75 _{See, International Court of Justice, Case concerning the military and paramilitary activities in}

and against Nicaragua (Nicaragua v. United States of America), Judgment 27 June 1986, p. 108 para. 205.

76 _{See, UN General Assembly, A/RES/46/182, cit., Article 1.4.}

77 _{See, J. Kokott, “States, Sovereign Equality”, in R. Wolfrum (ed.), Max Planck Encyclopaedia of}

35 their respective territories”78_{. References to these tasks are drawn, inter alia, from}

Article 4 of the Tampere Convention which affirms that “nothing in this Convention shall interfere with the right of a State Party, under its national law, to direct, control, coordinate and supervise telecommunication assistance provided under this Convention within its territory”79_.

Even though there has been an increasing trend for self-management in many recent disasters, sometimes it may be highly demanding for the State to react to a severe catastrophe by using just its own resources. If the magnitude and duration of the emergency goes beyond the response capacity of the country, international cooperation to address emergency situations and to strengthen the response capacity of affected countries may be necessary. However, neither a duty to seek for nor a duty to accept international assistance have been so far established at level of customary international law which, instead, regulates the external access to the territory of a disaster-affected State just by stressing the necessity to respect its sovereignty and primacy. Accordingly, as stated again in Resolution 46/182, international humanitarian assistance should be provided just “with the consent of the affected country and in principle on the basis of an appeal by the affected country”80_{. Hence, assuming that disaster response falls within the jurisdiction of}

the State in whose territory the catastrophic event has occurred and that the exercise by a State of any form of sovereignty in the territory of a foreign State is a wrongful act81_{, whenever assistance from foreign States or international}

organizations is needed, it has to be requested or at least consented. Consent – as expression of State’s willingness – is thus conditio sine qua non for the initiation

78 _{See, UN General Assembly, Humanitarian assistance to victims of natural disasters and similar} emergency situations, Resolution A/RES/45/100, 14 December 1990, para. 2; UN General Assembly, Humanitarian assistance to victims of natural disasters and similar emergency situations, Resolution A/RES/43/131, 8 December 1988, para. 2.

79 _{See, Tampere Convention on the Provision of Telecommunication Resources for Disaster}

Mitigation and Relief Operation, 18 June 1998, p. 5.

80 _{See, UN General Assembly, A/RES/46/182, cit., Annex – Guiding Principles, para. 3. In} addition, see Ki Gab Park, La protection des personnes en cas de catastrophe, Recueil des cours, 2013, p. 348.

81 _{See, International Law Commission, Draft Articles on Responsibility of States for}

36 of a humanitarian operation and the territorial State should always manifest its agreement in some way82_.

Consequence of the affected State’s sovereignty is, moreover, the freedom to select the legal framework governing the provision of assistance: after the admission to the territory of the affected State, the national authorities determine extension and termination of the interventions by selecting those who can access to the territory as well as by specifying the goods and services required83_.

Furthermore, State sovereignty is reflected not only in the fact that national authorities have a positive right to request/accept external assistance, but also in their right to refuse offers of help. To date, it is still unclear whether customary international law prohibits arbitrary refusals of humanitarian assistance and, even though it could appear odd, there have been cases where national authorities have refused external intervention, albeit the needs clearly outstripped domestic capacities. Generally, this may happen when the affected State wants to preserve its image of national pride84 _{or to avoid potential interferences in their internal}

affairs. In this regard, it is noteworthy to recall that, after the passage of the Cyclone Nargis in late June 2008 and despite the scale of the emergency, the government of Myanmar imposed severe restrictions on humanitarian interventions and refused international offers of aid, insisting that only national authorities were supposed to guarantee assistance85_.

82 _{It is worth to underline that acquiescence, that is the acceptance by not arguing or formally} requesting, is considered as a form of consent. See also, N. Ronzitti, “Use of Force, Jus Cogens and State Consent”, in A. Cassese (ed.), The Current Legal Regulation of the Use of Force, Nijhoff, 1986, pp. 147-166.

83 _{See, M. Costas Trascasas, “Access to the Territory of a Disaster-Affected State”, in A. De} Guttry, M. Gestri, G. Venturini, International Disaster Response Law, cit., p. 225.

84 _{For instance, after the 2004 tsunami and a severe South Asian Earthquake in 2005, the Indian} government decided to refuse external intervention because of its long history of reluctance to request it. Similarly, three days after Hurricane Katrina struck the United States in August 2005, President George Bush decided to reject financial donations and other forms of assistance, including medical supplies, despite the hurricane had been defined as an ‘ultra-catastrophe’ and the US government at all levels was failing to adequately prepare for and respond to this tragedy. 85 _{For further information, see R. Barber, “The Responsibility to Protect the Survivors of Natural} Disaster: Cyclone Nargis, a Case Study”, in Journal of Conflict and Security Law, Vol. 14, No. 1, 2009, pp. 3-34.

37 Notwithstanding it is legally reasonable that the affected State is the first and leading handler in ensuring protection since disaster response falls within its jurisdiction, a disproportionate State discretion risks, however, to increase the uncertainty on the capability to ensure appropriate interventions and, ultimately, to provide adequate humanitarian assistance to the victims. For a very long time, and in particular in the aftermath of the Nargis cyclone, the question on how to establish a duty to seek for external assistance for States in the context of disasters has thus been at the centre of the legal debates without, however, finding wide and deep consensus neither among the scholars nor among the States.

Albeit the extreme discretion of the affected State acquires special relevance since the population to be protected is present in its territory, it cannot be neglected that some negative consequences may rise also because of the absence also of a clear duty to provide for assistance on the States of the international community once external aid is requested.