INTRODUCTION

Disasters have devastating effects on the lives of people. The occurrence of a disaster can kill thousands in an instance, injure many others, damage homes and destroy livelihoods. Reconstruction takes a long time and the traumas last even longer. Natural disasters will not cease to exist and their impact appears to be ever growing. It is therefore of great importance that the response to a disaster is as effective and adequate as possible. If the disaster is too large for the affected state to cope with, other states, international organisations and NGOs are usually willing to assist. Although there is no guarantee that the situation of disaster survivors will greatly improve by external assistance, such help could be the difference between suffering due to a lack of supplies and being able to obtain at least the most basic resources. Nonetheless, some states affected by a disaster refuse international humanitarian assistance. They do this for a variety of reasons, a decision which can aggravate the effects of the disaster. Public international law offers hardly any instruments explicitly directing states’ behaviour regarding humanitarian assistance in response to a disaster. This research has therefore aimed to answer the following question:

To what extent does public international law contain standards for affected states determining whether they must accept international humanitarian assistance after the occurrence of a disaster?

As a first part of the research, a number of (legal) instruments and documents has been selected which potentially can be used to find clues for answering the main research question. Together with an analysis of the past attempts to organize the response to disasters on the international level, the consideration of fields of international law, resolutions, guidelines and other instruments has resulted in an overview of legal rules and principles depicting where the law on accepting humanitarian assistance in response to a disaster currently stands. Based on this a framework is designed departing from the primary role of the affected state and giving three steps for initiating and accepting international humanitarian assistance, together with three limitations of the affected state's freedom to withhold consent. Next to that, these findings have been placed in the light of and have been confronted with practice to determine what nuances, details and difficulties exist in the application of the rules ‘in real life’.

INTRODUCTION

Disaster strikes

Disasters will always have certain consequences in terms of casualties, injuries, and material damage, although the degree varies from one disaster to another. It is up to the state on which territory the disaster takes place (that state will henceforth be referred to as the ‘affected state’) to address these consequences. In some cases, the damage as a result of the disaster is so severe that a state needs assistance from others – like states, international organisations, NGOs or a combination of these – to respond to a disaster and to work on reconstruction. The earthquake that struck Haiti in 2010 provides a clear example of a disaster where international assistance was needed and requested by the state.

In the late afternoon of 12 January 2010, an earthquake with a magnitude of 7.0 Mw struck Haiti, its epicentre lying about 25 kilometres from Port-au-Prince. Not only due to the enormous scale of the disaster but also because it is one of the poorest countries in the Americas, Haiti found itself struggling to cope with the consequences of the earthquake. The damage was indeed of massive proportions. Over 200.000 people were killed and many homes were destroyed along with the capital's main infrastructure. Survivors tried to find refuge with relatives in the countryside or – in most cases – found shelter in refugee camps. For the distribution of tents, water and food the refugees were largely depending on international humanitarian aid, delivered with the permission of Haiti's government.

Not in all disasters is the affected state willing to make use of aid offered by international actors. When the Italian city of L'Aquila was hit by an earthquake in 2009, the Italian government made clear that international assistance for reconstruction was not required. The L'Aquila earthquake, which struck on 6 April at 3:32 am local time with a magnitude of 6.3 Mw, killed over 300 people and made around 55,000 people homeless. Many buildings in the historic centre of the city were damaged. The total cost of the earthquake was estimated at 2.5 billion US dollars and yet – at the time – Prime Minister Silvio Berlusconi stated that ‘Italians were “proud people” and had sufficient resources to deal with the crisis’. Italy did therefore not make use of offers of aid made by international actors.

INTRODUCTION

The goal of this Chapter is to illustrate the practical application of the rules that determine when an affected state moves from responding individually towards initiating the process of international humanitarian assistance and to giving consent to such assistance. As established in the previous Chapter, the legal framework on accepting humanitarian assistance in response to a disaster consists of three steps or layers. Underlying these three steps is the primary role of the affected state in responding to a disaster as a consequence of the sovereignty of the state. Due to this role, the affected state must in the first place make a needs-assessment (1). Based on this needs-assessment, the affected state must decide whether international humanitarian assistance is required and if so, the process of obtaining such assistance must be triggered (2). After valuing the offers of assistance available, the affected state must accept or decline these offers (3). At this stage, consent to offers of international humanitarian assistance may not be withheld for arbitrary reasons, when it would result in the violation of rules of international (human rights) law, or when the national capacity is overwhelmed.

The legal framework is established based on an analysis of the main (legal) sources on humanitarian assistance and disaster response. It is based on a theoretical understanding of what is expected of states. By looking at the way the legal framework is applied in practice, it is possible to further identify any problems and gaps that may exist. This way, it can be established whether the set of rules found in the previous Chapter is specific enough to speak of clear obligations for states to accept international humanitarian assistance. If not, it can be determined where the difficulties lie.

First, the individual response by the affected state will be discussed. The affected state is responsible for reacting to the occurrence of a disaster and must decide whether international aid is needed. If an affected state decides to accept international assistance, such assistance can be initiated through a request by the affected state or through an offer by another actor. The processes of initiation will be discussed in section 3. Accepting international humanitarian assistance is the point where the requirement of consent becomes visible. The role of consent will be explained in the fourth section.

The goal of the present research is to find out to what extent public international law contains standards for affected states determining whether that state must accept international humanitarian assistance after the occurrence of a disaster. A legal framework has been identified based on the legal sources relating to humanitarian assistance and disaster response. This legal framework consists of three steps or sequences.

Point of departure is the primary role of the affected state. It is not the occurrence of a disaster that instigates the existence of the primary role: responsibilities towards the own population follow from sovereignty and are also present when there is no disaster. The aspects of the responsibilities a state has towards its own population that are prompted by the occurrence of a disaster relate to humanitarian assistance. As a first step the affected state makes a needs assessment within the first seventy-two hours and determines whether it has the capacity to answer to these needs or whether additional assistance is required.

The second step is to trigger international humanitarian assistance if necessary, which must follow from the needs-assessment. International humanitarian assistance is necessary when the national capacity is overwhelmed or when a rule of international law is violated by withholding consent. At this stage, there is no obligation to actually accept: affected states only have a duty to seek assistance by actively making requests or by going through the offers already made. The goal at this stage is to value the offers made to the affected state to see whether they are acceptable. This is determined by the content of the offer (is what is being offered needed in the affected state according to the needs-assessment? Is what is being offered useful for the particular situation at hand?) and by the form of the offer (does the offer meet the humanitarian principles?). Considering each individual offer and accepting what is needed can take much time. It is more efficient to issue a concrete request or multiple requests for the relief the affected state needs, based on the needs-assessment. In either case it is necessary to make the moment of acceptance explicit and foresee the acceptance of the necessary detail. This is the third step.

Consent to international humanitarian assistance has major legal implications. Consent makes acts that would otherwise violate principles of sovereignty and territorial integrity legal.

INTRODUCTION

Whenever a disaster occurs, the affected state responds by coordinating and delivering assistance. In situations where the affected state's capacity is overwhelmed, international actors are usually willing to assist. Problems arise when the affected state is unable (or unwilling) to adequately respond to a disaster and refuses to accept international humanitarian assistance. There is no explicit legal framework on humanitarian assistance in disaster response explaining to what extent states should accept international humanitarian assistance. A variety of sources of international law can nonetheless be identified which contain rights, rules and principles on state action after a disaster took place. Within this legal framework, principles of state sovereignty, non-intervention, non-interference and territorial integrity grant the freedom to an affected state to determine which aid is needed after a disaster and to decide which international actors are allowed to cross the borders of its territory to provide assistance.

Considering that the affected population is suffering even more in the aftermath of a disaster when the affected state refuses to accept international humanitarian assistance and does not adequately respond itself and taking into account that the largely scattered legal framework is not helpful here, this research answers the following question:

To what extent does public international law contain standards for affected states determining whether the affected state must accept international humanitarian assistance after the occurrence of a disaster?

To answer this question, the (legal) instruments containing pieces of the puzzle have been analysed resulting in a framework of rules on accepting international humanitarian assistance. These findings have been placed in the light of the practice of disaster response to determine to what extent they constitute clear standards for states. Here it was found that the rules are not concrete enough for this purpose and the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been identified as the most promising solution to this problem. Therefore, it is analysed what standards can be derived from the ICESCR.

Throughout the study, examples of disaster situations have been used to illustrate points made. These cases do not together form a case study.

INTRODUCTION

When analysing the instruments and documents that potentially contain rules on accepting international humanitarian assistance in response to disasters in Chapter II, it was explored how human rights standards could play a role in disaster response. At that point the question has been addressed to what extent human rights standards in disaster settings have correlative obligations for states eventually resulting in an obligation to accept humanitarian assistance if the state is unable to realize the human rights standards. In general, the standard-setting function of human rights law can help to concretize obligations for state parties immediately after a disaster, but in particular the ICESCR appears to give direction on accepting humanitarian assistance. The ICESCR contains a provision on the general obligations for state parties that could help to answer the question at what point an affected state is under an obligation to accept. Article 2(1) of the ICESCR tells state parties to come to the full realization of the rights ‘individually and through international assistance and cooperation’. In addition, each state party must use ‘the maximum of its available resources’. These general obligations must be read in conjunction with substantive rights, of which the ICESCR contains a number highly relevant in disaster settings, like the rights to housing, food, water and health.

With the help of the ICESCR, it will be considered whether the legal framework as identified in the previous Chapters can be foreseen of more concrete standards. Possibly, the inclusion of the ICESCR will result in a clearer delineation of the primary role of the affected state, indicating when the affected state should move on to triggering international humanitarian assistance. Moreover, the obligations stemming from the ICESCR may be useful for determining when the point is reached at which the affected state must give its consent to international assistance, for example by giving standards to determine when the national capacity is exceeded, or by giving concrete obligations that can be violated by refusing to accept assistance. Accordingly, the ICESCR will be used to formulate a more complete answer to the main research question.

INTRODUCTION

Various attempts have been made to create more clarity in the rules and principles that apply in disaster situations. However, the international legal developments of the last century

Although there is no coherent system, this Chapter will look into the rules and principles that can be derived from legal sources. These sources consist of general international law that is relevant for the topic of humanitarian assistance as disaster response, and of sources that were developed especially for this topic.

Before going into the legal framework, a number of developments will be discussed that proved determining factors for the way international humanitarian assistance is perceived today. Over the centuries, different views have existed on what the role of international humanitarian assistance should be when a natural disaster struck. A number of these views were put into practice in setting up special organisations or attempts at codifying principles of disaster response. These developments will illustrate what have been successful or – in most cases – less successful approaches to international disaster response and humanitarian assistance. Moreover, keeping the past attempts in mind, it is possible to explain where certain rules and principles come from and to understand why certain developments and attempts at codification will (potentially) be successful or likely to fail.

THE FIELD OF INTERNATIONAL DISASTER RESPONSE: BACKGROUND AND MAIN ACTORS

Introduction

Until roughly the end of the nineteenth Century and the beginning of the twentieth Century, the ideas on international disaster response, and more specifically the delivery of international humanitarian relief, developed along a more or less singular line of thought.

INTRODUCTION

Ever since the inception of the EU, respect for democracy, the rule of law and human rights has constituted a corner stone of the European integration project. Indeed, the founding EU member states contemplated political and economic cooperation based on their mutual respect for the principle of liberal democracy. The importance of liberal democracy can clearly be seen in the early case law of the CJEU, such as the seminal judgment Internationale Handelsgesellschaft proves. With the entry into force of the Treaty of Lisbon, respect for democracy and the rule of law gained a newly elevated position within the Union's legal framework. In particular, the introduction of Article 2 TEU reaffirms the EU's commitment towards its foundational values, by stating that, inter alia, it is founded on the values of democracy, human rights and the rule of law and that these constitute a common heritage of the member states. Article 49 TEU finally also stipulates that “any European state which respects the values referred to in Article 2” can join the EU, and in so doing renders democratic governance and respect for human rights a sine qua non condition and a minimum common denominator for the member states.

However, despite the EU's renewed commitment towards its foundational values, in recent years, more and more worrying undemocratic and even authoritarian tendencies have been noticed within the European member states. While 2014 marked the 10-year anniversary of the Eastern enlargement, there is little reason to celebrate as democracy is struggling in several countries that joined the EU during the last decade. Ruling leaders have tried to centralize their executive power and undermine the rule of law by breaking the constraints of the checks and balances, thereby affecting the quality and stability of the democratic regimes. Amongst them, Hungary has led the trend. Since the 2010 election of Viktor Orban and his right wing conservative party Fidesz, Hungary has been backsliding to authoritarianism. The two thirds majority in the Hungarian parliament has empowered Fidesz to adopt legislation without the need for political compromise. Various amendments to the constitution have curbed Hungary's achievements of liberal democracy. This is evident by the fact that – just to name a few – the freedom of religion, the freedom of the media, and the powers of the judiciary and the Central Bank have been restricted.

Hungary is nonetheless not the only country backsliding to authoritarianism.

INTRODUCTION

The Court of Justice of the European Union (CJEU) issued two landmark decisions in April and May 2014, effectively applying Article 7 – the right to private life and Article 8 – the right to personal data protection, provided for in the Charter of Fundamental Rights of the European Union (the Charter), in order to protect the fundamental rights of the person in two different dimensions of the Surveillance Society. The first dimension opposes the individual and the state; the second one opposes the individual and private bodies. By doing so, the Court established itself as a prominent actor in the protection of fundamental rights in the digital age, not only in the EU, but also on the global stage.

In the first decision, Digital Rights Ireland,2 the Court annulled Directive 2006/24/EC3 – the “Data Retention Directive”, in its entirety, arguing that its provisions run counter to both Article 7 and Article 8 of the Charter. The Data Retention Directive enshrined an obligation for telecom service providers to retain traffic data of all their clients for a period of minimum 6 months and maximum 2 years, depending on the national laws transposing the directive. While the Court found that this operation does not touch on the essence of the right to private life and the right to personal data protection, and it genuinely satisfies an objective of general interest (fi ght against serious crime), it is not proportionate to the purposes it pursues. Among other things, the Court observed that the directive “entails an interference with the fundamental rights of practically the entire European population” and took into account the “general absence of limits” from its provisions.

In the second decision, Google v. Spain, the Court interpreted the provisions of Directive 95/46/EC – the “Data Protection Directive”, and Article 8 of the Charter in the sense that EU data protection law is applicable ratione personae to United States-based company Google Inc., due to the “inextricably link” with its subsidiary Google Spain, and to the fact that it meets the criteria to be considered a “data controller”.

INTRODUCTION

Czesław Miś (Czesław Teddy Bear when you translate his last name into English) is a Polish doctor of paediatrics who works at a state hospital in Nowy Sącz, a town located close to the city of Kraków in Poland.

The story of his court proceedings serves as an excellent example of and reflection on the practical application of two fundamental principles of the European Union law: supremacy and direct effect in the cases heard by the national common courts. The story should be known not only by lawyers and legal theorists. It should and has been also heard generally by the EU citizens. These citizens sometimes still believe that EU law made “out there in Brussels” is law with little or even no concrete, meaningful rights for individuals such as Kowalski in Poland or Sanchez in Spain. Moreover, the same citizens believe that Kowalski and Sanchez have limited or no chances in winning their case while battling for those limited rights in their national courts.

This paper will introduce the case, analyse the legal grounds for Czesław Miś’ claims and most of all, focus on the arguments and reasoning of the Polish common courts hearing the case with specific dynamics of understanding and recognition of the EU law principles as explained by the European Court of Justice (ECJ). It should serve as a comprehensive story, useful for full explanation of the principles working or not working in practice of domestic courts.

THE PRINCIPLE OF SUPREMACY, THE PRINCIPLE OF DIRECT EFFECT AND THE PRINCIPLE OF INDIRECT EFFECT OF EU LAW

The principle of supremacy (primacy) and the principle of direct effect of EU law have been developed by the European Court of Justice as they are not expressis verbis included in the texts of the two main EU Treaties, that is the Treaty on the Functioning of the European Union and the Treaty on European Union. Both principles have been extensively analysed in the literature, therefore comments presented below aim to shortly summarize their significance in the ongoing, dynamic relationship between the unique legal order of the European Union and different internal legal orders of the Union's Member States.