Is Security Council Authorisation Really Necessary to Allow Cross-Border Humanitarian Assistance in Syria?

In December last year, Russia and China vetoed a draft Security Council resolution that would have renewed the authorisation for humanitarian assistance to be provided in Syria via four designated border-crossings. The authorisation had been in place since Resolution 2165 (2014), and had enabled the provision of humanitarian assistance to more than four million Syrians.

In January, the Security Council passed a watered-down resolution (Resolution 2504) reauthorising the use of just two border crossings, allowing access from Turkey to northwest Syria for six months. The authorisation of the Al-Yarubiyah crossing on the Iraqi border, which enabled access to more than a million people in north-east Syria, was not renewed.  

Even for the Syrians whose assistance is for now continuing via the re-authorised crossings from Turkey, the future is uncertain. Resolution 2504 is up for renewal in July, at which time the continuation of lifesaving assistance for some 2.7 million Syrians will once again depend upon the good will of the Council’s five permanent members.

The situation highlights the precariousness of reliance upon the Security Council to make decisions about humanitarian crises, and begs the question: is there any legal alternative to Security Council authorisation, in cases where there is overwhelming humanitarian need and the host state will not consent to the provision of humanitarian assistance?  

The rules about humanitarian assistance and consent

Additional Protocol II to the Geneva Conventions, applicable in non-international armed conflicts, says that if the civilian population is suffering undue hardship owing to a lack of supplies essential for survival, humanitarian and impartial relief actions ‘shall be undertaken subject to the consent of the High Contracting Party concerned.’ It is broadly agreed that what this means is that while parties to conflicts do not have an obligation to provide consent, consent cannot be arbitrarily withheld (see Sivakumaran).   

International human rights law contains an even more robust obligation to consent to humanitarian assistance. The International Covenant on Economic, Social and Cultural Rights (ICESCR) obliges state parties to ‘take steps’ to the ‘maximum of [their] available resources’ to ensure the satisfaction of ‘minimum essential levels’ of the rights in the Covenant. The Committee on Economic, Social and Cultural Rights says that a state’s resources include ‘those available from the international community’. Thus, where a state’s population is deprived of its rights to essential food, water, shelter or healthcare, the state is under an obligation to seek and consent to humanitarian assistance in order to ensure minimum essential levels of those rights.

There is little question that the Syrian Government has illegally withheld consent to humanitarian assistance. Syria is a party to the ICESCR, and so is obliged to use all its available resources, including international assistance, to satisfy minimum essential levels of the rights to food, water, shelter etc. Even without recourse to the ICESCR, Syria’s reasons for withholding consent to humanitarian assistance are clearly neither reasonable nor justified, as required by international humanitarian law. The Government argues that cross-border assistance is ‘ineffective’ and can ‘be diverted to support terrorists’. The ineffectiveness allegation is belied by the number of people supported by the cross-border mechanism; and the assertion that such assistance may be diverted to terrorists is at odds with the UN Emergency Relief Coordinator’s assurance that the cross-border operation is ‘one of the most closely scrutinised aid delivery mechanisms in the world’.

The lawfulness of humanitarian assistance where consent is unlawfully withheld

According to the conventional view, the provision of humanitarian assistance without host state consent is a violation of the host state’s territorial integrity, and of the principle of non-intervention. It is therefore illegal, even if consent has been illegally withheld (see Akande and Gillard, for example).    

This position warrants interrogation. The principle of non-intervention is the ‘right of every sovereign state to conduct its affairs without outside interference’ (see Nicaragua). But what are a state’s affairs? It is now uncontroversial that human rights law places limits on a state’s conduct in its own territory – as Professor Henkin observes, the human rights regime has ‘washed away notions that how a state treats its inhabitants is nobody else’s business’. Could it not be argued that the provision of humanitarian assistance for the purpose of enabling Syrians to enjoy their human rights is not an unlawful intervention in Syria’s domestic jurisdiction, because the protection of human rights is not a matter falling exclusively within domestic jurisdiction?

But this is not the conventional view. The Security Council has passed a series of resolutions calling on states to ensure humanitarian access, however has never gone so far as to suggest that states or international organisations may provide humanitarian assistance without either the host state’s consent or the Council’s authorisation. Indeed, the fact that most states and humanitarian organisations appear to have accepted the absolute necessity of the Council’s authorisation of cross-border assistance for Syria appears to confirm the continuing consensus regarding the relevance of state consent.

Public international law applies to states and international organisations, not private actors. Thus, NGOs wishing to provide non-consensual humanitarian assistance are not prohibited by international law from doing so. For states and international organisations, though, the provision of humanitarian assistance without either host state consent or Security Council authorisation risks being regarded as an unlawful intervention unless it can be argued that the prima facie wrongfulness of the conduct is precluded by a ground recognised in international law as capable of excusing what would otherwise be an unlawful act.

The plea of ‘necessity’

According to the International Law Commission’s Draft Articles on State Responsibility as well as those on the Responsibility of International Organisations, circumstances of necessity may preclude the wrongfulness of an otherwise unlawful act, if that act is the only way of safeguarding an essential interest threatened by a grave and imminent peril. The ‘essential interest’ can be the interest of ‘the international community as a whole’.

It seems reasonable to suppose that the overwhelming scale of humanitarian need in northern Syria might give rise to a state of necessity. It is well established that the protection of human rights is an interest of the international community; and it is abundantly clear that the ability of millions of Syrians to enjoy their human rights faces grave and imminent peril.

All that being said, as Emanuela-Chiara Gillard has observed, in such cases ‘arguments based on law will not be used in litigation, where an independent and impartial judicial body makes a determination of the relative merits of the legal arguments’. In reality, the theoretical possibility of a successful plea of necessity is unlikely to assuage the concerns of states and international organisations about the prima facie illegality of non-consensual humanitarian assistance.

What can the UN General Assembly do?

It is possible, though, that the necessary assurance could be provided by the General Assembly. The Assembly could pass a resolution characterising the circumstances in Syria as giving rise to a state of necessity, such as to warrant the provision of humanitarian assistance without consent. Resolutions of the General Assembly need only be passed by a two-thirds majority, and no-one has the right of veto.  

The making of quasi-judicial findings of this nature is firmly entrenched in the Assembly’s practice. The Assembly has, for example, determined that particular state conduct constitutes – variously – aggression, genocide, a violation of the territorial integrity of another state, a gross and systematic violation of human rights, and a violation of international humanitarian law. It has made findings regarding a state’s entitlement to self-defence; has found states to be entitled to compensation; has made findings regarding the identity of parties to a conflict and the characterisation of a conflict; has expressed its view on the ‘necessity’ of particular courses of action such as sanctions; and it has on several occasions affirmed the need for humanitarian assistance. The Assembly’s competence to make such legal determinations has been accepted by several legal scholars (see White and Schachter, for example).

It would appear consistent with this precedent for the General Assembly to pass a resolution declaring that the protection of the rights of Syrians is an essential interest of the international community which faces grave and imminent peril, and that the only way of safeguarding that interest is for states and/or international organisations to provide lifesaving humanitarian assistance. The Assembly would effectively be making a pre-emptive finding that the wrongfulness of what might otherwise be an unlawful interference in Syria’s territorial integrity would be precluded by the plea of necessity. It wouldn’t be binding, but it would provide a strong presumption of legality that might suffice as a basis for action.

It seems a long shot to suppose that such an argument might result in increased humanitarian assistance in Syria any time soon. But whether or not it works for Syria, in the interests of those who will suffer the effects of future crises, the opportunity to explore all possible options for legally circumventing the restrictions on the provision of humanitarian assistance where consent is arbitrarily withheld should not be lost.