Humanitarian aid as a Human Rights obligation
Recently we have witnessed the appalling living conditions of asylum-seekers who are stuck in tents in camps at Lesbos (Greece) and in abandoned factory buildings in Serbia. As a result of snow, cold, storm and rain their living conditions have deteriorated rapidly from an already low level to even worse. There is a lack of adequate shelter, food, clothing, heating and sanitation facilities, and their health is at risk. These people cannot move, because EU member states have closed borders. The camps are administered by the national authorities, but it is clear that the EU and its member states bear a heavy responsibility for the present situation. Amnesty International, Human Rights Watch and Doctors Without Borders have criticised the present situation and called upon the EU to take its responsibility and provide immediate relief.

It is submitted that providing humanitarian aid is not just a matter of charity or moral obligation but results from a human rights obligation to fulfil basic human needs of those who are in desperate need. In its General Comment no. 3 (1990) the UN Committee on Economic, Social and Cultural Rights has said that ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party’.

The asylum-seekers are on Greek and Serbian territory respectively and within the jurisdiction of these countries. However the camps have been set up as a consequence of policy decisions taken by the EU and its member states. The present situation was foreseeable when winter approached. The national authorities and the EU have failed to take the necessary measures to prevent such a situation.

According to the notion of extraterritorial human rights obligations (ETOs), the EU and its member states have a duty to fulfil the subsistence rights of vulnerable groups outside its borders (Serbia) and of those people for which the EU has a special duty of care in a member state (Greece). The legal basis for this duty can be found in Article 2, section 1 International Covenant on Economic, Social and Cultural Rights, which provides for an obligation to take steps through international cooperation and assistance to realise these fundamental rights. All EU member states and Serbia have ratified this treaty. The notion of ETOs has been clarified in the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011, see etoconsortium). This is a legal expert opinion which has already gained recognition at the international level. According to these Principles Greece and Serbia, on whose territory the asylum-seekers are located, have an obligation to seek international assistance and cooperation (Principle 34). This territorial duty is complemented by an extraterritorial obligation for other states to provide international assistance (Principle 33). This is especially the case when other states had a role in creating the present situation.

One of the goals of the EU is to contribute to the protection of human rights in its relations with other states (Article 3, section 5 Treaty on the European Union). This does not only imply that the EU in its external policy must promote that other states comply with their human rights obligations, but also that the EU itself in its own actions must live up to human rights obligations. The situation of the asylum-seekers which are currently stuck on the external borders of Europe shows that the EU and its member states do not give effect to these basic obligations to protect vulnerable groups.

One of the goals of the EU is to contribute to the protection of human rights in its relations with other states (Article 3, section 5 Treaty on the European Union). This does not only imply that the EU in its external policy must promote that other states comply with their human rights obligations, but also that the EU itself in its own actions must live up to human rights obligations. The situation of the asylum-seekers which are currently stuck on the external borders of Europe shows that the EU and its member states do not give effect to these basic obligations to protect vulnerable groups.

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Image by Jordi Bernabeu Farrús. AFP PHOTO / ARIS MESSINIS TOPSHOTS-GREECE-EUROPE-MIGRANTS​}

 Published on Law Blogs Maastricht