Health and Humanitarian Assistance: Towards an Integrated Norm Under International Law
Tilburg Law Review 18 (2013) 133–151
20 Pages Posted: 16 Oct 2013 Last revised: 18 Nov 2013
Date Written: October 15, 2013
This contribution assesses how a set of health-related norms under international law and ethics apply to situations where humanitarian assistance is provided. It asserts that the right to health, as an international human rights norm, is reinforced by similar standards under international humanitarian law, medical ethics and the International Health Regulations (WHO). Based on this integrated norm, there is a legal obligation to ensure access to a set of essential health-related services during emergencies, and to offer health-related protection. With respect to the duty to deliver such services we suggest that there is a shared responsibility of a number of actors. For the State where the emergency is taking place there is a primary legal responsibility to deliver essential health services. Nonetheless, if the services are (partly) provided by third parties there is a legal duty on the part of this State to respect and to guarantee the safe delivery of the services, and a duty to consent to the delivery of such aid. These duties could potentially also fall upon non-state actors, for example armed opposition groups, if they exercise certain governmental functions and de facto authority over a population. Arguably the international community and donor States have correlated duties to provide a certain amount of assistance and cooperation. Lastly, humanitarian aid organizations and their staff are bound by their professional ethical standards, including the principle of medical neutrality, which requires that medical aid is to be provided to everyone, irrespective of nationality and civil status.
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