September 2021 Monthly Forecast

Posted 31 August 2021
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In Hindsight: Humanitarian Space and the Security Council

In the early post-Cold War period, Council action in relation to humanitarian issues usually entailed calling on parties to an armed conflict to allow humanitarian organisations access to populations in need or appealing to member states to provide humanitarian assistance. Early examples include resolution 688, which was adopted in April 1991 and insisted that “Iraq allow immediate access by international humanitarian organisations to all those in need of assistance”, and resolution 746 of March 1992, which appealed to member states and humanitarian organisations to contribute to relief efforts in Somalia. Similar language was included in resolutions concerning Afghanistan, Armenia/Azerbaijan, Bosnia and Herzegovina, and Rwanda, among others.

More recently, and particularly in the past decade, the Council has expressed itself more frequently on humanitarian affairs, including in politically difficult environments. The proliferation of humanitarian crises in country situations on the Council’s agenda has undeniably contributed to this development. Countries such as Libya, Mali, Syria, and Yemen—all suffering protracted humanitarian crises—have come onto the agenda since 2011. Other long-standing country situations such as Afghanistan, the DRC and Haiti continue to face significant humanitarian challenges.  And in recent months, the Council has grappled with how to support efforts to provide assistance to vulnerable populations in the Tigray region of Ethiopia.

What is Humanitarian Space?

The Council’s deepening involvement with humanitarian affairs provides an opportunity to highlight the relationship between its work and humanitarian space, a concept that is widely deployed by humanitarian actors. There is no universally agreed definition of humanitarian space and, as Collinson and Elhawary explain, it often means different things to different people and organisations.[1] Two examples illustrate how humanitarian organisations conceptualise humanitarian space. Rony Brauman, former president of Médecins Sans Frontières (MSF), has described humanitarian space as an environment that allows humanitarian agencies to operate independently of external political agendas,[2] in which they are “free to evaluate needs, free to monitor the distribution and use of relief goods, and free to have a dialogue with the people”.[3] OCHA’s glossary of humanitarian terms refers to humanitarian space as a synonym for a “conducive humanitarian operating environment”, notes the importance of the humanitarian principles of neutrality and impartiality, and says that “sustained humanitarian access is ensured when the receipt of humanitarian assistance is not conditional upon the allegiance to or support to parties involved in a conflict but is a right independent of military and political action”.[4] The notion of humanitarian space can also encompass such issues as the protection of civilian infrastructure, humanitarian exemptions for sanctions, and the protection of medical workers. These issues were highlighted in a Council meeting on the protection of humanitarian space that took place on 16 July.

Descriptions of humanitarian space tend to explicitly exempt this concept from politics. But in recent years, this issue has occasioned some of the most difficult negotiations in the Council, notably over the extent to which the Council should seek to protect humanitarian space and facilitate humanitarian action, particularly in circumstances where the host state does not consent to those measures.  This has led to protracted discussions on whether Council products should refer to the 1991 “United Nations guiding principles of humanitarian assistance” or to humanitarian principles, as applied by OCHA and other humanitarian actors.

The 1991 UN Guiding Principles of Humanitarian Assistance, or Humanitarian Principles?

When Council products now mention “the United Nations guiding principles of humanitarian assistance”, they are referring to text annexed to General Assembly resolution 46/182, adopted on 19 December 1991. The GA resolution and its annex explicitly address the strengthening of the coordination of humanitarian emergency assistance of the United Nations. The “guiding principles” for this are set out in the first twelve paragraphs out of 42 in this annex, the bulk of which address prevention, preparedness, financing and coordination, and development. These “guiding principles” have become a central point of contention in debates regarding the Council’s role in facilitating humanitarian space.

This GA text endorses three of the international humanitarian principles set out by the ICRC in 1965, which guide the work of OCHA and many other humanitarian actors, stating that “humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality”. The fourth humanitarian principle that guides OCHA and other humanitarian actors, namely independence, was endorsed in General Assembly resolution 58/114, which was adopted in December  2003. At the same time, the 1991 guiding principles state that “the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the UN. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country”. The text goes on to note that each state has the responsibility, first and foremost, to take care of the victims of emergencies occurring on its territory.

While several members frequently refer to humanitarian principles in Council discussions, others, most notably Russia, have emphasised the 1991 guiding principles’ references to host country consent and state sovereignty. Since April 2013, when “guiding principles” were mentioned in press elements regarding Syria, they have consistently been referred to in Council products concerning humanitarian action, usually at Russia’s insistence. A series of resolutions relating to Afghanistan, the CAR, the DRC, South Sudan, and Syria, among other country situations, have regularly included language regarding the guiding principles in their operative paragraphs. To take one example, resolution 2217 of April 2015, which renewed the mandate of the UN Integrated Multidimensional Integrated Stabilization Mission in the CAR, demanded that all parties allow and facilitate the timely delivery of humanitarian assistance “in accordance with the United Nations guiding principles of humanitarian assistance”.

In recent times, some Council members have sought to reword such references, leading to sharp disagreements. In December 2020, France, as penholder for the DRC, removed language from MONUSCO’s mandate demanding that all parties respect “the United Nations guiding principles of humanitarian assistance and relevant provisions of international law” in facilitating the timely delivery of humanitarian aid. This language had been included in every resolution that renewed MONUSCO’s mandate between March 2014 and December 2019. The final text, which was adopted as resolution 2556, instead demanded that all parties facilitate the timely delivery of humanitarian assistance “in accordance with relevant provisions of international law and the humanitarian principles”. France’s amendment ultimately led Russia to abstain on the resolution.

The tension between those supporting “the relevant provisions of international law and the humanitarian principles”, on the one hand, and those supporting the “guiding principles of humanitarian assistance”, on the other, was captured in Russia’s explanation of vote:

We cannot agree with the new wording of the paragraphs on international humanitarian assistance proposed by the authors, which dilutes the relevant United Nations guiding principles contained in General Assembly resolution 46/182. We regard the guiding principles as the only universal basis for the work of all international humanitarian organisations and donors. They capture the imperative to ensure respect for the sovereignty of States recipients of humanitarian aid. We believe that they need to be fully reflected in documents of the Security Council.

This tension has persisted in recent Council debates concerning the Syrian humanitarian file. On 11 July 2020, the Council adopted resolution 2533, authorising the continued use of one border crossing between Syria and Turkey for the delivery of humanitarian aid for 12 months. The resolution was only adopted following the vetoing of two draft resolutions by China and Russia. On 9 July, in explaining their first vetoes, both members referred specifically to General Assembly resolution 46/182. China noted that “cross-border operations should strictly follow the guiding principles of humanitarian emergency assistance set out in General Assembly resolution 46/182”, while Russia said that the cross-border mechanism “has to be gradually phased out and replaced by humanitarian deliveries in accordance with the principles outlined in General Assembly resolution 46/182”. Both states expressed a similar sentiment in statements issued on 10 July 2020 regarding their second vetoes. The UK, on the other hand, criticised China and Russia for politicising a humanitarian issue, while the US said that “there is no justification for Russia’s and China’s vetoes today, and this action cannot be spun into false choices between humanitarian aid, sovereignty, and sanctions”.

Council members who prefer to include references to the humanitarian principles, rather than the guiding principles on humanitarian assistance, seem to be seeking to decouple them from General Assembly resolution 46/182 and its emphasis on consent and sovereignty. These Council members also appear to prefer linking humanitarian principles and international law. For example, resolution 2568 of March 2021, which reauthorised the AU Mission in Somalia, used identical language to resolution 2556 and reiterated the Council’s demand that all parties allow timely delivery of humanitarian assistance “in accordance with relevant provisions of international law and in line with humanitarian principles”. Council members who seek to include this language may be doing so because they take the view that consent to humanitarian assistance cannot be arbitrarily withheld under international law when certain conditions are satisfied, a position that has gained broad acceptance among scholars.[5]

There is no sign that debates among Council members about whether Council products should refer to the guiding principles of humanitarian assistance, or to humanitarian principles, will wane. While the use of sufficiently broad language may allow resolutions to be adopted, it is likely to remain difficult for the Council, in contentious situations, to take action that protects humanitarian space and facilitates humanitarian action.

[1] Sarah Collinson and Samir Elhawary, ‘Humanitarian Space: A Review of Issues and Trends’ Humanitarian Policy Group Report 32 (2012): p.1.

[2] Cynthia Brassard-Bordeau and Don Hubert, ‘Shrinking Humanitarian Space? Trends and Prospects on Security and Access’, The Journal of Humanitarian Assistance (2010): p.1.

[3] Johanna Grombach Wagner, ‘An IHL/ICRC Perspective on Humanitarian Space’ (2006): p.1.

[4] OCHA, ‘Glossary of Humanitarian Terms in Relation to the Protection of Civilians in Armed Conflict’ (2004): p.15

[5] Rebecca Barber, ‘Does International Law Permit the Provision of Humanitarian Assistance Without Host State Consent? Territorial Integrity, Necessity and the Determinative Function of the General Assembly’, forthcoming in TD Gill et al (eds), Yearbook of International Humanitarian Law 2020 (TMC Asser Press, 2021): p.3, citing: Sandesh Sivakumaran ‘Arbitrary Withholding of Consent to Humanitarian Assistance in Situations of Disaster’, International and Comparative Law Quarterly 64(3) (2015): pp 516-519;   Michael Bothe, Karl Josef Partsch and Waldemar Solf, (1982) New Rules for Victims of Armed Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949. (Martinus Nijhoff, 1982): p.434; Dapo Akande and Emanuela-Chiara Gillard, ‘Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict’ University, (UN OCHA and Oxford 2016): p.21, Cedric Ryngaert, ‘Humanitarian Assistance and the Conundrum of Consent’ Amsterdam Law Forum 5(2) (2013): pp 5-19.

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