In the Oxford Guidance, the authors make a careful exposition of the legal framework relating to humanitarian relief operations in situations of armed conflict. Responding to the unseemly practice of some states impeding humanitarian relief operations, they make the compelling, practice-based argument that states have an obligation under international law not to arbitrarily withhold consent to such operations (pp. 21-25). That states have such an obligation does however not necessarily mean that humanitarian relief actors have a right to conduct relief operations absent such consent. The primary rules of international humanitarian law, in any event, while providing for the former obligation, do not provide for the latter right. Secondary rules of international law on state responsibility may come to the rescue here. As the authors of the Oxford Guidance correctly point out, the doctrines of necessity and countermeasures under the general law of state responsibility may also apply as circumstances precluding the wrongfulness of “third” states’ relief operations on the territory of the non-consenting state (pp. 51-55). In this post, I will critically reconstruct the authors’ application of the law on countermeasures. I will limit myself to countermeasures taken by third states. I have addressed the taking of humanitarian relief-based countermeasures taken by non-state humanitarian actors (NGOs) in an earlier publication.
The main obstacle to a third state conducting relief operations as a countermeasure is that this state is not itself ‘injured’ by the territorial state’s withholding of consent. Indeed, the better position is that the non-relieved civilians are the injured parties, and that the state wishing to conduct the relief operation is a non-injured state. This begs the question whether in that capacity it is entitled to take countermeasures in the face of the territorial state’s arbitrarily withholding consent to the relief operation. The authors of the Oxford Guidance take the ‘progressive’ position that they can.
It is recalled in this respect that the International Law Commission (ILC) left this potential entitlement deliberately open in Article 54 of its 2001 Articles on State Responsibility. Article 54 is essentially a saving clause that does not prejudice the development of an entitlement for third states to not only invoke the responsibility of another state in relation to violations of erga omnes obligations (by virtue of Article 48 of the Articles) but also to ‘take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached’. At the time of adoption of the Articles, the ILC was of the view that it appeared that no such entitlement was clearly recognized. In so doing, it left this open for progressive legal development. Later scholarship has cast doubt on the conservative attitude of the ILC and, analyzing at least in part the same materials which the ILC had before it, has come to the conclusion that there is ‘extensive evidence of state practice and opinio juris in support of a right to take countermeasures by states other than the injured as an integral part of customary international law.’ (Elena Katselli, The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community, London: Routledge, 2010, p. 207). Thus, as we write, if not as early as 2001, third states may well be entitled to take countermeasures as a matter of positive international law.
The authors of the report seem to concur. At the same time, however, they wonder whether conducting humanitarian relief operations without the consent of the relevant state can qualify as a countermeasure, the purpose of which is after all to induce the violating state to comply with its obligations (nr. 155). Arguably, by conducting the operations regardless of consent, third states are single-handedly creating compliance rather than inducing it. Intuitively, indeed, one would assume that the object (A) of a countermeasure taken by state X against state Y should differ from the object (B) of the obligation owed by state Y to state X. In contrast, in the case of humanitarian relief operations conducted without the territorial state’s consent, A and B coincide. Nevertheless, the coincidence of the object of a countermeasure and the object of an obligation is not excluded by the law on countermeasures. Important is that the state taking the countermeasure temporarily withholds performance of one or more obligations owed by it to the responsible state (cf commentary (6) to Article 49 of the ILC Articles) with a view to inducing the latter to perform its own obligations to the former or, in this case, the international community at large. These international obligations are not the same, although they may be synallagmatically related: the latter state is obliged to not arbitrarily withhold its consent to humanitarian relief operations, whereas the former is obliged to respect the territorial sovereignty of the latter in the absence of consent to intervene. At the end of the day, the third state’s non-performance of the obligation to respect territorial sovereignty, which is the flipside of its non-consent-based provision of humanitarian relief, is geared towards inducing the territorial state to comply with its obligation not to arbitrarily withhold consent. The third state then only conducts the relief operation until the territorial state consents to it. At this point factually the same operation continues but on another legal basis (norm-compliance rather than countermeasure).
This construction appears to be in keeping with the law on countermeasures, something which is also acknowledged by the authors of the Oxford Guidance. Still, they note that the proportionality requirement – part and parcel of the law on countermeasures – restricts the non-consent-based provision of relief to ‘the most extreme cases’, namely when the unlawful impeding of humanitarian relief operations ‘amounts to a particularly serious breach of international law’ (nr. 156). In so doing, the authors appear to import the notion of jus cogens into the law of countermeasures, a notion which under the Articles on State Responsibility normally only yields duties of non-cooperation and non-recognition (Article 41). From a doctrinal perspective, the authors do so by citing the general proportionality limitation of Article 51, which provides that countermeasures must take into account ‘the gravity of the internationally wrongful act’. The upshot is that third states may in principle be entitled to take countermeasures in the face of breaches of erga omnes obligations (i.e., the rule progressively developing Article 54), but that in practice such measures will only pass muster in case the said breaches also qualify as jus cogens violations. Such a reading raises the bar for the taking of lawful countermeasures, and it prevents the wrongfulness of violations of territorial sovereignty being too easily precluded. It constitutes a defensible compromise between those state interests embodied by the principle of non-intervention and the interest of civilians embodied by third parties’ right to offer relief to them in cases of need.