I TS S COPE OF A PPLICATION AND
5.2 The Development of Human Rights Relevant to Humanitarian Assistance
Although Chapters 2 and 3 have addressed the longstanding origins of humanitarian assistance as a concept, placing this assistance within a human rights context makes a transition to the 21st century. Following the atrocities witnessed by the international
community during World War II, the United Nations have been crucial to the development of these rights and their embedding in the international legal world. This embedding commences with the organisation’s Charter stating in Article 1(3) that one of the purposes of the UN is to promote and encourage fundamental freedoms for all, as well as achieving international cooperation in ‘solving international problems of a humanitarian character’.7 Furthermore, articles 55 and 56
of the UN Charter, calling upon the UN as an organisation and its Member States individually to take action to achieve the promotion of universal respect for, and observance of human rights, have also contributed to the internationalisation of these rights.8 Indeed, as an obligation resting upon society is implied in order to meet the
7 Michael Palumbo, Human Rights: Meaning and History (Krieger 1982) 11-12; Lori Damrosch (ed),
International Law: Cases and Materials (West Group 2001) 650.
8
The full text of Article 55 of the UN Charter states: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”; Article 56 of the UN Charter states:” All Members pledge themselves to take joint and separate action in co- operation with the Organization for the achievement of the purposes set forth in Article 55”. See also Thomas Buergenthal, ‘Human Rights’ in Max Planck Encyclopedia of Public International Law (March 2007) § 7; Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford University Press 2008) 69-96. For a discussion on the extraterritorial application of human rights, see Section 3.4.2 Applicability of Human Rights in Armed Conflict and Occupation.
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demands of these rights,9 the international community has sought the reassurance that
these concepts would no longer remain within the national domain through the adoption of the well-known and major human rights declarations and treaties, amongst which most importantly the Universal Declaration of Human Rights, the 1965 ‘International Convention on the Elimination of all forms of Racial Discrimination’10 (ICERD), the ‘International Covenant on Economic Social and
Cultural Rights’11 (ICESCR) and the ‘International Covenant on Civil and Political
Rights’12 (ICCPR), both of 1966. Various provisions in the ‘International Bill of
Rights’ (encompassing the UDHR, ICESCR and ICCPR) are considered to have become customary international law.13 Where the UDHR is widely recognised for
establishing a universal and equal basis for all human rights,14 the European
Convention for Human Rights (ECHR), adopted in 1950, has been widely recognised for its similar influence at a regional level.15 Both the American and African continent
have subsequently developed regional human rights treaties, namely the American Convention for Human Rights (ACHR / Pact of San José) and the African Charter on Human and Peoples’ Rights (ACHPR / African Charter).16
9 Louis Henkin, The Age of Rights (Columbia University Press 1990) 3.
10 Full text of the ICERD (21 December 1965) available at
<http://www2.ohchr.org/english/law/cerd.htm> accessed 19 July 2012.
11 Full text of the ICESCR available at <http://www2.ohchr.org/english/law/cescr.htm> accessed 19
February 2012.
12
Full text of the ICCPR available at <http://www2.ohchr.org/english/law/ccpr.htm> accessed 19 July 2012.
13 Erica-Irene Daes, Freedom of the Individual under Law: A Study on the Individual’s Duties to the
Community and the Limitations of Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights (1990) 5; Tomuschat, Human Rights: Between Idealism and Realism (n 8) 4; Buergenthal, ‘Human Rights’ (n 8) § 9; and Thomas Buergenthal, ‘The Evolving International Human Rights System’, in (2006) 100 American Journal of International Law 790. Not all rights included in the ICESCR and ICCPR can be found in the UDHR and vice versa. An example is the abolition of the death penalty, provided for in the Second Optional Protocol to the ICCPR (UNGA Res 44/128 of 15 December 1989) which was not provided for as part of the right to life in the UDHR. Also, many rights declared in the UDHR have been elaborated upon in the subsequent treaties, to include more specificities.
14 The preamble to the UDHR itself declares in its final paragraph the UDHR to be a: “a common standard
of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction”.
15
Full text of the ECHR available at <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318- B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf> accessed 19 July 2012. See also Tomuschat, Human Rights: Between Idealism and Realism (n 8) 31.
16 Full text of the ACHR (“Pact of San José, Costa Rica”) available at
<http://www.oas.org/en/iachr/mandate/Basics/convention.asp> accessed 19 July 2012. The Convention was adopted November 22, 1969 and entered into force July 18, 1978. Full text of the ACHPR (Banjul Charter) is available at <http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf> accessed 19 July 2012. The Charter was adopted 27 June 1981 and entered into force 21 October 1986.
The ‘Vienna Declaration and Programme of Action’17 that was adopted by the
world conference on the occasion of the 45th anniversary of the UDHR in 1993, states
that:
“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”.18
The Vienna Declaration thus not only reaffirms the UDHR, but furthermore reaffirms the interdependency and interrelation of human rights, which is of relevance to their analysis in consideration of the provision of humanitarian assistance as such provision simultaneously addresses various human rights. In essence therefore, all rights must be considered to be coherent rather than assuming friction amongst them.19 Granted, whilst this Declaration must be seen in the context of its time, as it
was developed in the wake of the end of the era of communism, this perspective has however been adopted within the UN, and continues to be reaffirmed by the General Assembly.20
The various regional human rights courts assist in the progressive interpretation of existing rights, as do the ‘treaty bodies’ such as the committees pursuant to the ICERD, ICESCR and ICCPR that monitor the proper implementation and regard or compliance for their respective treaties.21 Yet these committees also provide for
interpretation of the content of the specific provisions of these treaties, thereby providing insight into these international standards which are relevant for the evaluation of their content, as well as relevant for the determination of the specific obligations resting upon State Parties to the treaties.22 Outside this treaty-based
system, such interpretations may also be provided with regard to specific individual human rights by so-called ‘Special Rapporteurs’, instated by the former UN Human
17Full text of the Vienna Declaration and Programme of Action is available at
<http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/a.conf.157.23.en> accessed 19 July 2012.
18
‘Vienna Declaration and Programme of Action’ UN Doc A/CONF.157/23 (12 July 1993) § 5.
19 Tarlach McGonagle, ‘International and European Legal Standards for Combating Racist Expression:
Selected Current Conundrums’, Expert Seminar: Combating Racism while respecting Freedom of Expression (2007) 40. For a perspective on the need to combine the current pronged human rights treaties and monitoring bodies into one single comprehensive approach, see Nico J Schrijver, ‘Paving the Way Towards…One World Wide Human Rights Treaty’, (2011) 29 Netherlands Quarterly of Human Rights
3, 257-260.
20 UNGA Res 63/176 (20 March 2009) UN Doc A/RES/63/176 ‘Globalization and its impact on the full
enjoyment of all human rights’, preamble.
21
See more in detail Chapter 8. Official statement concerning the purpose of the CERD is available at <http://www2.ohchr.org/english/bodies/cerd/index.htm> accessed 19 July 2012 and the purpose of the HRC at <http://www2.ohchr.org/english/bodies/hrc/index.htm> accessed 19 July 2012; and see for the CESCR <http://www2.ohchr.org/english/bodies/cescr/> accessed 19 July 2012.
22 The ICJ has followed the authoritative interpretation of the HRC of the ICCPR, amongst others in its
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, § 109-11.
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Rights Commission or now the Human Rights Council, on thematic issues.23 Thus,
the UN ‘s Charter-based system and the treaty-based mechanisms are both relevant to the determination of the rights and duties concerning the provision of humanitarian assistance.24 Through these various developments and interpretative mechanisms,
international human rights law develops simultaneously at the regional and international level, also at the same time giving rise to the development of certain rights into customary international law.
5.2.1 ‘Generations’ of Human Rights in Relation to Humanitarian Assistance Given the nature of the concept of humanitarian assistance, the emergence of a potential human right to receive humanitarian assistance can only be considered within the context of the general developments of the various human rights that are acknowledged today, and which can be roughly divided into three sections. It is widely recognised that the Cold War has influenced the division of the ICESCR and ICCPR into two treaties with two distinct characters: the ICESCR holds rights of an economic, social and cultural nature, whereas the ICCPR holds many civil and political rights. Several ensuing regional human rights instruments have followed this division, such as the ECHR and ACHR that both focus on rights of a mostly civil and political nature. The more recent African Charter encompasses a wider spectrum of human rights, as well as so-called ‘peoples’ rights’.
Legal discourse has also concentrated these themed rights into categories or ‘generations’, a phrase first coined by Vasak in the late 1970s.25 Civil and political
‘negative’ rights were considered to entail that the state refrain from action, whereas economic social and cultural ‘positive’ rights impose a positive obligation upon states. Such an obligation is often seen as a tiered approach consisting of three levels; namely the obligation to respect, the obligation to protect, and the obligation to fulfill the right.26 With a particular view to the four human rights selected in specific
relation to the provision of humanitarian assistance, the right to life is included in the ‘civil and political rights’ spectrum, warranting the state to refrain from the arbitrary
23 See for a current list of thematic mandates
<http://www.ohchr.org/EN/HRBodies/SP/Pages/Themes.aspx> accessed 19 July 2012.
24
See Section 2.2.1.1 The Role of the UN in the Development of Humanitarian Assistance.
25 Karel Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to
the Universal Declaration of Human Rights”, UNESCO Courier 30:11 (Paris: UNESCO, November 1977).
26 CESCR General Comment 12 (Article 11 ICESCR) UN Doc E/C.12/1999/5 ‘The right to adequate
food’ (12 May 1999) § 15. Especially developed by Asbjorn Eide and used particularly in relation to economic, social and cultural rights. See in this regard also Asbjorn Eide, ‘State Obligations Revisited’ in Wenche Barth Eide & Uwe Kracht (eds) Food and Human Rights in Development (Volume II) (Intersentia 2005) 137-157; Wenche Barth Eide & Uwe Kracht, ‘The Right to Adequate Food in Human Rights Instruments: Legal Norms and Interpretations’ in Eide Wenche Barth & Kracht Uwe (eds) Food and Human Rights in Development (Volume II) (Intersentia 2005) 106-107. See also Thorsten Kiefer & Catherine Brölmann, ‘The Human Right to Water’, (2005) 5 Non-State Actors and International Law, at 192 (2005).
deprivation thereof, whereas the rights to food, health and water demand positive action of the affected state.
So-called ‘third generation rights’ – which would include the potential individual human right to receive humanitarian assistance – came to the international plane during the 1970s, often supported by (newly) developing countries.27 According to
Vasak, a parallel could be drawn between the French Revolution’s motto ‘liberté, egalité, fraternité’ and the content of various types of human rights, as a result of which ‘fraternité’ refers to a third generation of solidarity rights.28 This later notion
of solidarity rights also concurs with the new concept of collective- or group rights,29
which the possible right to receive humanitarian assistance could form part of.30
Although humanitarian assistance is by nature indeed delivered to a group of people as a whole due to the existence of a humanitarian crisis affecting a larger amount of persons, and it may therefore be considered by some a ‘group’ right; invoking a human right must still occur on an individual basis. Solidarity rights as a whole may be divided into two distinct sections, both tied to the political developments of the final decades of the twentieth century.31 Within the first section, these rights are said
to include the right to self-determination, the right to development and the right to participate in the benefits from the common heritage of humankind, whereas the second section includes the right to peace, the right to a sustainable environment, the right to communication and relevant to this research, the right to humanitarian assistance.32 Prior to the discussion of this potential human right to receive
27
‘Report of the independent expert on human rights and international solidarity (Mr. Rudi Muhammad Rizki)’ UN Doc A/HRC/4/8 (7 February 2007) § 9.
28
Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights” (n 25); see also Zehra F Kabasakal Arat, Human Rights Worldwide: A Reference Handbook (ABC Clio 2006) 35-36; and Richard Pierre Claude & Burns H Weston (eds), Human Rights in the World Community: Issues And Action (University of Pennsylvania Press 2006) 21.
29 See Section 5.3 A Human Right to Receive Humanitarian Assistance in International Law?. 30
It is relevant to note that there are two concepts of ‘solidarity’ in the context of human rights. Firstly, the term is used as an umbrella for several rights, but secondly is also considered a narrow right in and of itself. Note the UN High Commissioner for Human Rights in ‘Promotion and Protection of Human Rights: Human rights and international solidarity’ UN Doc E/CN.4/2006/96 (1 February 2006) § 16.
31
Claude & Weston Human Rights in the World Community: Issues And Action (n 28) 22.
32 Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the
Universal Declaration of Human Rights” (n 25); ‘Report of the independent expert on human rights and international solidarity (Mr. Rudi Muhammad Rizki)’ UN Doc A/HRC/4/8 (7 February 2007) § 41; and ‘Promotion and Protection of Human Rights: Human rights and international solidarity’ (Note by the UN High Commissioner for Human Rights) UN Doc E/CN.4/2006/96 (1 February 2006) § 29. See also Claude & Weston Human Rights in the World Community: Issues And Action (n 28) 22 and Rohan J Hardcastle & Adrian T L Chua, ‘Humanitarian Assistance, Towards a Right of access to victims of natural disaster’, (1998) 38 International Review of the Red Cross 325, 592. See furthermore Articles 19, 20, 22 and 23 of the ACHPR as well as Common Article 1 of the ICCPR and ICESCR on the right to self-determination. The right to Development has been declared in UNGA Res 41/128 (4 December 1986) UN Doc A/RES/41/128 Annex ‘Development Declaration’ although it has not been affirmed later in legally binding documents; the Right to Peace firstly was called for in the UN Human Rights Commission’s Resolution 5 (XXXII) (27 February 1976) and later in UNGA Res 33/73 (15 December 1978) UN Doc A/RES/33/73 ‘Declaration on the preparation of Societies for Life in Peace’, but both times was afflicted by abstentions and rejections from member states. The Right to a Healthy
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humanitarian assistance under treaty law and customary international law, as well as a reflection on its duty bearers and right holders a more general discussion on the derogability of human rights in times of crisis is needed.
5.2.2 Derogability, Human Rights and the Provision of Humanitarian Assistance The existence of a humanitarian crisis, when humanitarian assistance is needed, is by nature a time of emergency for a state. However, legally such emergency circumstances are also provided for. Most of the international and regional human rights treaties focusing on civil and political rights include so-called ‘derogation clauses’, allowing for the derogation from certain rights in times of emergency.33
Approaching the delivery of humanitarian assistance from a human rights perspective can thus only be possible if derogation of such relevant human rights, such as the right to life, food, health and water in times of a humanitarian crisis is not possible. Indeed, should it be possible to derogate from such rights, an approach to humanitarian assistance through human rights would not be possible.
The ICCPR declares in Article 4 that ‘in time of public emergency which threatens the life of the nation’ derogation from certain rights is possible, yet Article 4(2) ICCPR states that under no circumstances derogation from the right to life, relevant to this research, is possible.34 The fact that no derogation is possible does not thereby
mean that ‘conceptually’ no limitations or restrictions could be considered justified, as this is to be determined independently from derogability.35 Yet, the Human Rights
Committee considers the non-derogability of the right to life as an expression of this right’s peremptory nature in international law, thereby implicitly indicating that justifying limitations or restrictions upon this right will be challenging for states parties.36
Both the ECHR and ACHR regionally contain derogation clauses. Similar to the ICCPR, the ECHR allows for derogation from certain rights in times of public emergency, but excludes the right to life from such derogability.37 The ACHR has
the lowest threshold with regard to its derogation clause, allowing for the possibility to derogate from certain rights within the ACHR not only in times of public emergency threatening the life of the nation, but also in times of any other emergency
Environment was mentioned in the Stockholm Declaration of 16 June 1972, UN GA Res 45/94 (14 December 1990) UN Doc A/RES/45/94 and Article 24 AChHPR as well as Article 11 of Additional protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.
33 Article 4 ICCPR, Article 15 ECHR and Article 27 ACHR. 34
See in support of this CCPR General Comment 5: ‘Derogation of rights (Art. 4)’ (31 July 1981) and