An Analysis of Soft Law Applicable to Humanitarian Assistance: Relative Normativity in Action?

in Journal of International Humanitarian Legal Studies
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There is limited binding international law specifically covering the provision of humanitarian assistance in response to natural and human-made disasters. Yet a variety of authoritative soft law texts have been developed in the past 20 years, including the UN Guiding Principles on Internal Displacement, the Red Cross Red Crescent Code of Conduct and the Sphere Project’s Humanitarian Charter and Minimum Standards in Disaster Response. While such ‘non-binding normative standards’ do not carry the weight of international law, they play an essential role in the provision of humanitarian assistance albeit subject to their limited enforceability vis-à-vis intended beneficiaries and to their voluntary application by humanitarian actors. Notwithstanding a lack of legal compulsion, certain non-binding normative standards may directly influence the actions of States and non-State actors, and so obtain a strongly persuasive character. Analysis of texts that influence the practice of humanitarian assistance advances our understanding of humanitarian principles and performance standards for disaster response. As the International Law Commission debates draft articles on the Protection of Persons in the Event of Disasters, such non-binding normative standards are crucial to the development of an internationally accepted legal framework to protect victims of disasters.

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References

11

D. Fisher, ‘The Right to Humanitarian Assistance’ in Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges, Walter Kälin et al (eds.), ASIL & Brookings-Bern Project on Internal Displacement, Studies in Transnational Legal Policy, No. 41 (2010), at 51-52.

19

Weil, supra note 1, at 440.

22

 See Weil, supra note 1, at 414, n.7. However, even legal positivists generally accept that non-binding texts constitute important evidence of the existence of consensus among States regarding particular rules or practices, e.g. I. Brownlie, Principles of International Law (6th ed., 2003), at 3-4.

28

Blutman, supra note 18, at 606. Blutman refers to these two forms of soft law simply as “soft law (I)” and “soft law (II)”.

33

Weil, supra note 1, at 415.

36

Shelton, supra note 34, at 292. Shelton further argues that, in practice, the real question is securing States’ compliance with obligations they have agreed to, e.g. in the UN Charter or Geneva Conventions, than imposing jus cogens obligations on dissenting States, at 304-305.

41

Klabbers, supra note 23, at 385.

42

Shelton, supra note 34, at 322.

44

Fisher, supra note 11, at 48.

45

Weil, supra note 1, at 417.

46

Shelton, supra note 34, at 320.

47

Blutman, supra note 18, at 606-607.

49

Blutman, supra note 18, at 610. Although Blutman proposes the phrase “a rule of the game” for non-obligatory rules that are habitually complied with, I believe this phrase detracts from the serious nature of life saving activities such as the provision of humanitarian assistance.

63

Tsui, supra note 60, at 13.

72

Hilhorst, supra note 68, at 36. Although, considering the disproportionate number of large donor organisations which are signatories of the Code of Conduct, it is unclear whether such a high proportion of local implementing partner agencies would also consider the Code of Conduct as constituting binding principles.

75

Figures as of August 2011. Information from http://www.ifrc.org/Global/Publications/disasters/code-of-conduct/codeconduct_signatories.pdf (last accessed 7 August 2012).

76

Hilhorst, supra note 68, at 6.

81

Kälin, supra note 40; and R. Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’, 10 Global Governance 459 (2004).

84

 See Fisher, supra note 11, at 48.

86

Cohen, supra note 81, at 466. Francis Deng, the first Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, was central in developing the concept of “sovereignty as responsibility”, originally in the context of conflict management in Africa. See: D. Rothchild et al, Sovereignty as Responsibility: Conflict Management in Africa, Brookings Institution Press (1996).

90

Kälin, supra note 81, at 7.

103

McDougal and Beard, supra note 93, at 90.

104

Darcy, supra note 92, at 118-119. Although this may reflect the fact that the Humanitarian Charter is explicitly based on moral and ethical grounds, not just legal principles.

110

IDRL Guidelines, supra note 106, at 4-5.

131

Charney, supra note 38, at 544.

135

Blutman, supra note 18, at 606-607.

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