Abstract
Facilitation of the entry of personnel of assisting relief organizations to the territory of a disaster-affected State as well as the provision of goods and services to the victims constitute two critical elements that are reliant on the consent of national authorities. Nevertheless, the introduction of the protection of persons in disasters as a necessary component of the IDRL has provided the basis for limiting, to some extent, the role that consent by the affected State is called to play in disaster relief. This article analyzes two important developments that are taking place in this regard. Firstly, it deals with progress in the work of the International Law Commission on constructing the duty of the affected State to accept humanitarian relief when it is deemed to be ‘unable’ or ‘unwilling’ to protect persons that are under its jurisdiction. The second part is devoted to analyzing the ‘Responsibility to Protect’ doctrine and the advantages or disadvantages of extending its scope to disaster situations. It finally analyzes progressive developments in UN Security Council practice in order to establish under what circumstances it would be justified for this body to take coercive measures in the context of disasters, with the aim of ‘coercing’ a government to accept access by international relief, and the consequences of such a course of action.
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Notes
- 1.
See A/RES/38/202, 20 December 1983 para 2; A/RES/46/182, 19 December 1991 Annex, para 4. The International Law Commission Special Rapporteur has considered that: ‘the primary responsibility of the affected State, as expressed through its operational control of disaster relief and through the consent requirement, constitutes a general rule governing humanitarian assistance.’ Third report on the protection of persons in the event of disasters, UN Doc. A/CN.4/629, 31 March 2010 para 96.
- 2.
It is to be noted that the ILC has tried to avoid any kind of terminological misunderstandings by privileging in its text of draft articles the use of the term ‘duty’ instead of that of ‘responsibility’.
- 3.
In this context it has been acknowledged the urgency of a growing consensus among States to redefine their sovereignty by means of a ‘constructive use of international law.’ Preliminary report on the protection of persons in the event of disasters, UN Doc. A/CN.4/598, 5 May 2008 para 55.
- 4.
- 5.
- 6.
The need to respect the territorial sovereignty of the State is clearly established in most multilateral treaties governing disaster relief and further recognized by relevant principles guiding the provision of humanitarian assistance in such situations. See also Chap. 1 by de Guttry and Chap. 2 by Venturini in this volume.
- 7.
ILC, Protection of persons in the event of disasters. Memorandum by the Secretariat, UN Doc. A/CN.4/590, 11 December 2007 para 22.
- 8.
A/RES/46/182, 19 December 1991, para 3.
- 9.
Fisher 2007, 89.
- 10.
ILC Protection of persons in the event of disasters. Memorandum by the Secretariat, UN Doc. A/CN.4/590, 11 December 2007 para 58.
- 11.
In other cases, practice shows that States can also impose several obstacles to both the humanitarian actors’ ability to reach populations in need and to operations that aim to provide services and assistance to those affected, for example, through the establishment of unnecessary bureaucratic restrictions on personnel and humanitarian supplies. For a further discussion on this issue see Chap. 23 by Silingardi in this volume.
- 12.
Case concerning the military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 27 June 1986, ICJ Rep. 1986 para 242.
- 13.
A good example of how humanitarian action in the context of a natural disaster can converge with other objectives is the relief operation launched by NATO in response to the Pakistan earthquake in 2005. There seems to be little doubt that while the operation was mainly motivated by humanitarian considerations, these were most probably mixed with security interests particularly linked with the fight against international terrorism. The scale of the response was in fact perceived to be part of the security agenda of the United States and its allies in the framework of the fight against international terrorism. Some in the media commented that the main purpose of the US and NATO troops was not taking part in the relief and rehabilitation work but to ‘hunt’ for Osama-Bin-Laden and other Al-Quaeda leaders. See Jochems 2006.
- 14.
States may have also used consent to relief as an instrument for political purposes: while accepting the offer of relief from other States can be seen as a way of strengthening the diplomatic relationship, refusal of the offers will usually have an adverse effect. Examples include the Unites States offering aid to Iran following the 26 December 2003 Earthquake and Iran offering aid to the United States following Hurricane Katrina in August 2005; the India-Pakistan rapprochement following the 8 October 2005 Earthquake; or the Ethiopia-Eritrea interaction during droughts from 1999–2000. For these cases see Kelman 2006, 223–224.
- 15.
After the Earthquake in April 1989 China declared that it welcomed any appropriate emergency assistance from ‘friendly’ governments and international organizations. China—Earthquake UNDRO Situation Report 2, 18 May 1989, http://reliefweb.int/node/35113. Accessed 2 March 2012.
- 16.
- 17.
Harvey 2009, 1.
- 18.
Sudan Tribune, Khartoum’s Expulsion of Humanitarian Organizations (March 4, 2009), http://www.sudantribune.com/Khartoum-s-Expulsion-of,30643. Accessed 2 March 2012.
- 19.
Hardcastle and Chua 1998, 634.
- 20.
Some authors have suggested this possibility as a feasible way of delivering aid to victims under certain circumstances. States willing to provide humanitarian aid could opt to launch a ‘clandestine operation’ in the territory of the State or to put aid at the disposal of humanitarian organizations, which then cross the State’s borders without authorization. It has been noted in this regard that this was common practice in conflicts such as those in Ethiopia, Sudan, Iraq, and the former Yugoslavia. See Abril Stoffels 2004, 536; Bothe 1989, 96.
- 21.
Harvey 2009, 1.
- 22.
For example, the Mohonk Criteria for Humanitarian Assistance in Complex Emergencies, 1995, establish that: ‘[w]here the government or other authority is unable or manifestly unwilling to provide life-sustaining aid, the international community has the right and obligation to protect and provide relief to affected and threatened civilian populations in conformity with the principles of international law.’ (Section II.4). See Ebersole 1995, 192. Also the 1998 Guiding Principles on Internal Displacement introduce the same idea when establishing that: ‘[i]nternational humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced. Such an offer shall not be regarded as an unfriendly act or interference in a State’s internal affairs and shall be considered in good faith.’ Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39. Addendum, Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, 11 February 1998, Guiding principle 25 para 2 in fine.
- 23.
ILC, Report on the work of its sixty-third session, UN Doc. A/66/10, para 276.
- 24.
It should be stressed that the ILC draft article dealing with consent by the affected State does not use the ‘unable or unwilling’ formulation present in other texts to trigger an obligation to accept relief, but rather mainly focuses on the first variation.
- 25.
ILC, Protection of persons in the event of disasters. Memorandum by the Secretariat, UN Doc. A/CN.4/590, 11 December 2007 para 250. The Committee on Economic, Social and Cultural Rights has maintained that ‘whether 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.’ General Comment n 12 (E/C.12/1999/5) para 15. Also in considering in 1999 article 11 of the Covenant (Right to adequate food), it commented that: (a) ‘States had a core obligation to take the necessary action to mitigate and alleviate hunger, even in times of natural or other disasters,’ (b) ‘the State had to demonstrate that every effort had been made to use all the resources at its disposal,’ and (c) that if it was unable to carry out its obligation, it had the burden of proving that this was the case and that it had ‘unsuccessfully sought to obtain international support.’ General comment n 13 (E/C.12/1999/10) paras 6 and 17.
- 26.
The complete collapse of Haiti’s infrastructure after the 2010 Earthquake provides a paradigmatic example of this type of State ‘inability’ to provide disaster response. On January 12, 2010, a massive earthquake struck Haiti destroying the Haitian government infrastructure. For an analysis of this case in the light of the ‘Responsibility to Protect’ doctrine see Malone 2010.
- 27.
ILC, Report on the work of its sixty-third session, A/66/10, 261.
- 28.
Benton Heath 2011, 462.
- 29.
It has been stressed that this is more than a technical question: ‘making such an assessment is an inherently political act, and political considerations often weigh heavily as donors governments decide whether and how to intervene.’ Harvey 2009, 2.
- 30.
Zorzi Giustiniani 2008, 248.
- 31.
Boisson de Chazournes 2008, 151.
- 32.
Harvey 2009, 3.
- 33.
Although in these cases it has been held that the international community may in some way act, it has to be noted that articulation of the willingness of the States to provide assistance as a ‘right’ might be controversial as it does not necessarily imply the conceptual development of the correlative obligation on States unable to provide adequate assistance to accept aid given by international organizations.
- 34.
Some authors have attempted to figure out the following ‘indicators of unwillingness’: (a) there is regular failure on the part of the State to deliver humanitarian aid, development aid, or social services to a particular geographic area, or to a particular gender, ethnic or political group, or religious section; (b) there has been an unjustified delay in the delivery of assistance which in the circumstances is inconsistent with an attempt to meet the needs of the affected population; (c) assistance is not being delivered in accordance with internationally recognized principles of humanity, neutrality, impartiality, and non-discrimination. See Benton Heath 2011, 472.
- 35.
ILC, Report on the work of its sixty-third session, A/66/10, 270.
- 36.
In the ILC proposed draft article, the main burden of proving that it has good reasons not to accept the offer lies with the affected State, which should clarify these reasons when it refuses. Although the requirement for public justification is a positive step, the ILC has highlighted this burden on considering that a rigid duty to formally respond to every offer of assistance would place an excessive burden on the affected State and that at the current stage a ‘wide decision regarding all offers of assistance, specifying its decision would be a satisfactory solution.’ (Ibid.).
- 37.
In supporting this view it is necessary to recall the Human Rights Committee, General Comment nº 6 to the ICCPR in interpreting that the protection of the right to life also contains a positive obligation on States to adopt positive measures together with General Assembly Resolutions 43/131 (8 December 1988) and 45/100 (14 December 1990) stating that ‘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.’
- 38.
- 39.
ICISS, The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty, December 2001, available at http://responsibilitytoprotect.org/ICISS%20Report.pdf, para 2.31. Accessed February 11, 2012.
- 40.
In relation to the application of the R2P the general vision of the members of the Commission is that the formulation of this concept has not been conceived to apply to these situations. The ILC Special Rapporteur has recognized that ‘even if the responsibility to protect were to be recognized in the context of protection and assistance of persons in the event of disasters, its implications would be unclear.’ Preliminary report on the protection of persons in the event of disasters, UN Doc. A/CN.4/598, 5 May 2008 para 55; Protection of persons in the event of disasters. Memorandum by the Secretariat, UN Doc. A/CN.4/590, 11 December 2007 para 250.
- 41.
Benton Heath 2011, 423.
- 42.
- 43.
Preliminary report on the protection of persons in the event of disasters, UN Doc. A/CN.4/598, 5 May 2008 para 47. See Massingham 2009.
- 44.
A general reflection on the ‘dilemma’ of humanitarian intervention was launched by the Secretary–General Kofi Annan in his 1999 Report to the General Assembly. In his opinion the core challenge to the Security Council and to the United Nations as a whole in the next century was that of forging unity behind the principle that massive and systematic violations of human rights—wherever they may take place—should not be allowed to stand. Secretary–General presents his Annual Report to the General Assembly, 20 September 1999, https://www.un.org/News/ossg/sg/stories/statments_search_full.asp?statID=28. Accessed 2 March 2012.
- 45.
We the People: the role of the United Nations in the twenty-first century. Report of the Secretary-General, A/54/2000, para 219.
- 46.
Secretary–General presents his Annual Report to the General Assembly, supra n 44.
- 47.
ICISS, The Responsibility to Protect op. cit. n. 39, para 4.19.
- 48.
It is to be recalled that among the range of situations that amount to ‘just cause’ for military intervention, the ICSS report includes ‘overwhelming natural or environmental catastrophes, where the State concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.’ Ibid. para 4.20.
- 49.
At the 2005 Word Summit Outcome, the Heads of State and government unanimously affirmed that: ‘[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’ They agreed, as well, that the international community should assist States in exercising that responsibility and in building their protection capacities. Furthermore, in cases where a State is ‘manifestly failing’ to protect its population from specified crimes and violations the document confirmed that the international community is prepared to take collective action in a ‘timely and decisive manner’ through the Security Council and in accordance with the Charter of the United Nations. A/RES/60/1, 24 October 2005, para 139.
- 50.
Implementing the responsibility to protect, A/63/677, 12 January 2009 para 10 (b).
- 51.
- 52.
A more secure world: Our shared responsibility, Report of the Secretary General’s High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 para 202.
- 53.
IFRC, Believe in Humanity. A Consultation with G20 governments, November 2009, 11, 17–19. Available at http://www.ifrc.org/Global/Publications/volunteers/G20_Consultation_Report_Nov2009.pdf. Accessed 2 March 2012. However, a different position seems to flow from discussions held before the ILC where the representative of the United States underlined his government’s ‘reservations about taking a rights-based approach to the topic and its objections to incorporating the concept of the responsibility to protect the Commission should focus on areas of the law that would have the most significant practical impact in mitigating the effects of disasters, including, for example, the development of practical tools to facilitate coordination among providers of disaster assistance or the drafting of model bilateral agreements to facilitate access of people and equipment to affected areas.’ ILC Report on the work of its sixtieth session UN Doc. A/C.6/63/SR.23, para 86.
- 54.
The increasing demand for a right to access disaster victims is in fact causing the States to place greater emphasis on the role of sovereignty and non-intervention in international law. Specifically, States that face potentially adverse consequences from a disaster have stressed sovereignty rather than consent to legal rules requiring them to accept foreign aid. See Benton Heath 2011, 432. See also the discussions before the UN General Assembly Sixth Committee, and in particular the positions of China (A/C.6/63/SR.23, para 31), Japan (A/C.6/63/SR.23, para 42); and Russia (A/C.6/63/SR.24, para 5).
- 55.
For an accurate account of the facts see Chap. 18 by Russo, Sect. 18.4.
- 56.
Post Nargis Joint Assessment, July 2008, http://www.aseansec.org/21765.pdf. Accessed 2 March 2012.
- 57.
Burma—Joint press briefing given by M. Bernard Kouchner, Minister of Foreign and European Affairs, and M. Jean–Pierre Jouyet, Minister of State responsible for European Affairs, 25 May 2008 (excerpts), available at: http://www.ambafrance-uk.org/Bernard-Kouchner-on-Burma-disaster.html. Accessed 2 March 2012. The EU’s High Representative for Common Foreign and Secure Policy, Javier Solana, also affirmed: ‘We have to use all the means to help those people. The UN Charter opens some avenues if things cannot be resolved in order to get humanitarian aid into a country that has had a catastrophe, as in the case of Burma/Myanmar, where the leaders of the country do not allow the fast and well organised arrival of aid. By “all means” we mean all the means that are provided for in the UN Charter—whatever is necessary in order to help the people who are suffering.’ Remarks by Javier Solana, EU High Representative for the CFSP, on the latest developments in Burma/Myanmar, Brussels, 13 May 2008, S165/08, available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/discours/100322.pdf. Accessed 2 March 2012. The EU Council has subsequently endorsed the R2P doctrine but only restricted to certain categories among which situations of natural or man-made disaster are not included. Report on the Implementation of the European Security Strategy—Providing Security in a Changing Word, Brussels, 11 December 2008, S407/08.
- 58.
Bellamy 2010, 152. See also the document of the Asia–Pacific Center for the Responsibility to Protect, ‘Cyclone Nargis and the Responsibility to Protect’, available at: http://www.r2pasiapacific.org/documents/Burma_Brief2.pdf, p 9. Accessed 2 March 2012.
- 59.
- 60.
- 61.
Amnesty International Myanmar Briefing: Human rights concerns a month after Cyclone Nargis, 5 June 2008, AI Index: ASA 16/013/2008; Human Rights Watch, Burma, time for UN Security Council to Act, http://www.hrw.org/news/2008/05/19/burma-time-un-security-council-act. Accessed 2 March 2012.
- 62.
Médecins Sans Frontières (2011) Humanitarian Negotiations Revealed: The MSF Experience http://www.msf-crash.org/livres/en/humanitarian-negociations-revealed; strengthening coordination of UN humanitarian and disaster relief assistance: the ICRC statement to the United Nations, 2011 (14 December 2011), available at: http://www.icrc.org/eng/resources/documents/statement/united-nations-humanitarian-coordination-statement-2011-12-14.htm. Accessed 2 March 2012.
- 63.
See Belanger and Horsey 2008, 4–5.
- 64.
Ibid.
- 65.
Situation of human rights in Myanmar, A/63/356, 17 September 2008, para 29.
- 66.
See Turner et al. 2008. Accessed 2 March 2012.
- 67.
Evans 2009.
- 68.
A/RES/63/245, 23 January 2009.
- 69.
See S/RES/1529(2004), 29 February 2004, preamble para 9 and operative para 6.
- 70.
S/RES 1908 (2010), 19 January 2010, preamble para 5 and operative para 3.
- 71.
In this context, Resolution 1927 (2010), 4 June 2010, clearly outlines the role international community can play in disaster relief situations. See preamble, para 5 and operative para 3.
- 72.
See Preliminary report on the protection of persons in the event of disasters, UN Doc. A/CN.4/598, 5 May 2008 para 250.
- 73.
In the case of Somalia, the Security Council declares to be ‘[d]ismayed by the continuation of conditions that impede the delivery of humanitarian supplies to destinations within Somalia, and in particular reports of looting of relief supplies destined for starving people, attacks on aircraft and ships bringing in humanitarian relief supplies, and attacks on the Pakistani UNOSOM contingent in Mogadishu.’ S/RES/794 (1992), 3 December 1992.
- 74.
In the case of Somalia (1992), Rwanda (1994), Zaire (1996) and Albania (1997), the Security Council has authorized the States to undertake military measures in order to reach humanitarian objectives. S/RES/794 (1992); S/RES/929 (1994), 22 June 1994; S/RES/1080 (1996), 15 November 1996; S/RES/1114 (1997), 19 June 1997.
- 75.
This included the establishment and maintenance, where feasible, of secure humanitarian areas. See S/RES/925 (1994), 8 June 1994 and S/RES/929 (1994).
- 76.
See S/RES/1080 (1996).
- 77.
S/RES/1101 (1997), 28 March 1997 and S/RES/1114 (1997).
- 78.
See S/RES 1706 (2006), 31 August 2006, and S/RES/1769 (2007), 31 July 2007.
- 79.
See S/RES/688 (1991), 5 April 1991 para 3 (with respect to the grant of access to international humanitarian organizations in Iraq), S/RES/770 (1992), 13 August 1992 para 2 (with respect to the provision of humanitarian assistance in Bosnia and Herzegovina), S/RES/794 (1992), 3 December 1992 para 10 (concerning humanitarian relief operations in Somalia) and S/RES/929 (1994), 22 June 1994 para 3 (authorizing distribution of relief supplies in Rwanda).
- 80.
This possibility is recognized in the resolution on humanitarian assistance, adopted by the Institute of International Law in 2003, which states that ‘if a refusal to accept a bona fide offer of humanitarian assistance or to allow access to the victims, leads to a threat to international peace and security, the Security Council may take the necessary measures under Chapter VII of the Charter of the United Nations.’ Principle 7 of the Guiding Principles on the Right to Humanitarian Assistance, adopted by the Council of the International Institute of Humanitarian Law in April 1993, states: ‘The competent United Nations organs and regional organisations may undertake necessary measures, including coercion, in accordance with their respective mandates, in case of severe, prolonged and mass suffering of populations, which could be alleviated by humanitarian assistance. These measures may be resorted to when an offer has been refused without justification, or when the provision of humanitarian assistance encounters serious difficulties.’ See Chap. 3 by Zorzi Giustiniani, Sect. 3.4.
- 81.
- 82.
A more secure world: Our shared responsibility, Report of the Secretary General’s High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 para 206.
- 83.
Ibid, para 207.
- 84.
- 85.
The deployment of a US naval group, a French navy vessel and a British frigate with aid supplies to waters bordering on territorial waters certainly contributed to increasing suspicion by the Junta that humanitarian assistance was being used to conceal an external intervention.
- 86.
In his 2010 report on the Myanmar’s situation UN Secretary-General affirms: ‘I am glad to report that, today, 15 United Nations agencies, 50 international organizations and a similar number of local non-governmental organizations are now operating inside the country and are working not only in the Ayeyarwaddy delta, but in all regions of Myanmar. Looking forward, the United Nations and the Government of Myanmar have reached an agreement to collaborate on a two-year joint humanitarian initiative (2010–2011) on northern Rakhine State, a border area whose population faces a particularly difficult combination of socio-economic and humanitarian factors. I welcome this initiative, as it aims to provide a unified response to meet the immediate needs of the region’s populations while focusing on longer-term developmental objectives and goals.’ UN Doc. A/65/367, para 37.
- 87.
Evans 2009.
- 88.
The United Nations considered this possibility to reach the victims of the Cyclone Nargis in Myanmar. US Considers Air Drops for Burma Cyclone Victims, http://articles.economictimes.indiatimes.com/2008-05-09/news/28410161_1_myanmar-devastating-cyclone-relief-supplies. Accessed 2 March 2012.
- 89.
Oxfam Canada, Discounting Aid Drops, http://oxfam.ca/news-and-publications/news/discounting-aid-drops. Accessed 2 March 2012.
- 90.
Asia–Pacific Center for the Responsibility to Protect, ‘Cyclone Nargis and the Responsibility to Protect’, available at: http://www.r2pasiapacific.org/documents/Burma_Brief2.pdf, 11. Accessed 2 March 2012. See also Ozerdem2011, 706–709; Holmes, Disaster Lessons, Washington Post, August 6 2008; available at: http://www.washingtonpost.com/wp-dyn/content/article/2008/08/05/AR2008080502924.html. Accessed 2 March 20120.
- 91.
A more secure world: Our shared responsibility, Report of the Secretary General’s High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 para 207.
- 92.
Corten 2008, 777.
- 93.
Bellamy 2010, 158.
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Costas Trascasas, M. (2012). Access to the Territory of a Disaster-Affected State. In: de Guttry, A., Gestri, M., Venturini, G. (eds) International Disaster Response Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-882-8_10
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