Underlying the various opinions expressed about the cyclone that has wreaked such devastation in Burma is a broader question about whether people affected by a war or natural disaster have a right to humanitarian assistance, which should trump our traditional respect for state sovereignty.
Humanitarian aid organisations were fairly unequivocal on this issue until quite recently. According to the humanitarian charter, which was first published in 2000, with the backing of a broad range of humanitarian organisations:
"This charter is based on two core beliefs: first that all possible steps should be taken to alleviate human suffering that arises out of conflict and calamity, and second that those affected by a disaster have a right to life with dignity and therefore a right to assistance. The charter defines the legal responsibilities of states and parties to guarantee the right to assistance and protection. When states are unable to respond they are obliged to allow the intervention of humanitarian organisations."
The two key phrases worth noting are the "right to assistance" and the "obligation" to allow international organisations to intervene.
This wording was dropped from the revised version of the humanitarian charter, that was published in 2004, and aid agencies have carefully avoided such statements in their responses to the Burmese cyclone. Since similar language has subsequently been used by a variety of others, including in a resolution before the European parliament on Thursday, it is worth briefly stating why humanitarian agencies are now taking a different approach.
Traditionally aid agencies have relied on the principle of neutrality and diplomacy to gain access to disaster zones. Faced with the humanitarian crises of the 1990s, however, some moved away from this principle and supported military intervention on humanitarian grounds in certain circumstances. Médecins Sans Frontières most famously declared that "one cannot stop a genocide with medicine", in relation to Rwanda in 1994.
The risks of making such clearly political statements are obvious and so humanitarian agencies turned increasingly to the provisions of international human rights and humanitarian law for guidance.
The Geneva conventions and the statute of the international criminal court quite clearly prohibit the use of starvation and the denial of life-saving supplies as a weapon of war against civilian populations. If a government were to engage in such practices it would be committing a war crime. Along with torture and genocide, these are crimes of universal jurisdiction and the "responsibility to protect" (R2P) doctrine has been drawn up to try and codify a basis for when international interventions are legitimate to prevent them. As Gareth Evans has outlined, this does permit the international community to forcefully override national sovereignty in certain exceptional circumstances, and with certain essential pre-conditions, which some observers often ignore.
The report on which the R2P doctrine is based mentions a government's failure to respond to an overwhelming natural disaster as one potential type of "conscience-shocking situation" which might justify intervention. Unfortunately, this is where the rather vague doctrine is at its vaguest.
One problem is that while the use of starvation "as a weapon of war" is clearly prohibited by the Geneva conventions; these specify that the "right of humanitarian access" only applies to international conflicts. The wording in relation to internal conflicts is much weaker and there is nothing at all which explicitly refers to the "right to humanitarian assistance" in the context of natural disasters.
It is true that the right to life is codified in a variety of international human rights treaties, but this is mainly understood to be a protection against arbitrary executions. Some treaties on economic and social cultural rights refer to rights such as food and shelter. However, these have not been so widely ratified and considerable disagreement remains about what they actually mean in practice. For example, if such a right exists, how much assistance should be given and when does the obligation end? Who decides how much of the burden should be borne by a national government, how much by its immediate neighbours and how much by the wider international community?
If people have a right to something then it logically follows that someone must be obliged to give it to them, yet on this crucial question the so-called "right to assistance" is silent.
The "obligation of access" is even more problematic. It is a basic prerogative of national sovereignty for a government to control its own borders. All governments impose restrictions on foreign organisations that wish to enter their countries. International human rights law also explicitly recognises that they have the right to impose additional controls on things like freedom of movement, in the context of a disaster or national emergency. France has no more legal right to send gunboats and helicopters in Burma to deliver aid than Cuba or Venezuela would have done to help the victims of Katrina in New Orleans. Of course this is where issues of proportionality and scale come in, but it is difficult to characterise a delay in processing visas as a crime against humanity.
Many will argue that if this what international law says and this is preventing aid from reaching people who will die as a result, than the law must be wrong. Martin Jacques assertion that the Burmese people "do not want and do not need western help" should be read alongside the account of the direct experiences of an aid worker here who was in the field up until a few days ago, and who was prevented from reaching villages where aid was needed and saw troops taking food while civilians were starving.
Nevertheless, the default position taken most aid agencies is that the only practical way of delivering aid is with the consent of the Burmese government. Oxfam's Barbara Stocking has already outlined why unauthorised air-drops are a completely ineffective means of helping people. Some suggest that western troops should be deployed alongside aid workers to deliver aid, which would rightly be interpreted by the Burmese government and its immediate neighbours as a foreign invasion. Maybe the political will exists for such an invasion in western countries and maybe those who assert that the 400,000 strong Burmese army would not fight back are right, but the precedents elsewhere are not encouraging. Should humanitarian organisations jeopardise the access that they have so far achieved on the theory that this might be right?
Nor is it true to say that the only alternative is to do nothing. Diplomatic pressure has led to the Burmese government easing some of its restrictions. The UN's breakthrough on persuading the government to allow foreign helicopters to distribute aid and the increasingly assertive role played by the Association of South East Asian Nations are significant. In the meantime the simple imperative is to get as much aid as possible to places where it will save lives. If the aid agencies' assertions about "rights and obligations" are not as loud and as forceful as they used to be, it is still worth remembering that these are the main ones doing anything at all at the moment.
