`인도적 지원`(Humanitarian Assistance)에 있어서의 국제입법 동향 및 주요 쟁점

The Lawmaking Trend and Legal Issues in Humanitarian Assistance

It is admittedly true that international norms regulating humanitarian assistance for the protection of victims in various disasters still remain insufficient while international human rights law has shown considerable progress by imposing peremptorily the obligations of human rights protection upon States and by imposing criminal responsibility upon those who commit serious violation of human rights. In fact, international humanitarian law guaranteeing protection of victims of armed conflict is lacking in concrete criteria for humanitarian assistance and there has been no binding international norm whatsoever about humanitarian aid for the victims in case of non-conflict calamitous events such as natural disaster. In these situations, relief and aid operations for the victims cannot but rely upon voluntary cooperation from individual States, international organizations or humanitarian bodies. Traditionally, it has been generally considered that protection of victims in the event of disasters belongs to domestic affairs and external assistance for them can be performed on the basis of the request or consent of the affected States. The real problem in this regard is that, in numerous cases, the aid or assistance from other States or humanitarian organizations couldn`t have been provided to the victims due to the refusal or obstruction by the affected States. In order that the protection may be effectively secured for the victims of any disaster regardless of their character, natural or man-made, there should be established a legal system which obliges the affected States to prepare for the assistance as appropriate and allows, in case of its failure to implement this obligation, the victims to be provided ultimately with the humanitarian aid from third States, international organization or humanitarian bodies. It might be for these needs that the international community has endeavored to prepare general rules for humanitarian assistance. The purpose of this paper is to introduce the actual legal situation of humanitarian assistance by presenting the trend of development of law and the major legal issues in this area. For this purpose, this paper makes, in the first section of this study, a general survey of the situation of legislation on humanitarian assistance on the basis of principal document in this field. In the third section, in order to clarify the meaning of humanitarian assistance, this paper defines its concept and distinguish it from other concepts: humanitarian intervention and the `Responsibility to Protect`. In addition, this section makes clear the scope of disasters in which humanitarian assistance is to be provided. In the fourth section, this paper investigates the legal relationships between the actors concerned in humanitarian assistance. This section focuses on: the right of victims to humanitarian assistance; the primary obligation and responsibility of affected States in humanitarian assistance; the rights and obligations other States, international organization or humanitarian bodies in this regard; the right of affected States to consent to external assistance. What is the most important in this context consist in coordinating the respect of the sovereignty of the affected States and the need to protect the victims of disasters. In this regard, this last section emphasizes that today`s legislation and practice shows a growing tendency to prohibit the arbitrary refusal of offers of external assistance.