In July 2010, during one of my last missions as Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, I was negotiating humanitarian access with the then-Minister of Defence of the Central African Republic. Just days before I had met a group of people in the North of the country who, after several weeks of hiding in the forest and surviving just on edible plants and berries, had just escaped from a war zone that was declared by the military authorities as a no-go area for humanitarian agencies and organizations. One of my arguments to convince the Minister was a reference to Guiding Principle 25 on humanitarian access and its maxim that consent to offers of humanitarian assistance “shall not be arbitrarily withheld.” I found this reference useful because the heads of state and government including the Minister’s father, then-President Bozize, had unanimously recognized the Guiding Principles on Internal Displacement “as an important international framework for the protection of internally displaced persons” when in September 2005 they adopted the outcome document of the Millennium Summit in New York. At the same time, I was fully aware that the notion of a prohibition of arbitrary denial of humanitarian access was soft law at best and not recognized as part of binding international law.
That states have an almost unfettered right to decide whether or not to grant humanitarian access to the UN and other international actors was still widely acknowledged in the mid-1990s when we – a group of legal experts brought together by Francis Deng, the then- Representative of the UN Secretary General on Internally Displaced Persons, and Roberta Cohen, the former director of the Brookings Project on Internal Displacement – set out to draft what were to become the Guiding Principles on Internal Displacement. However, we wondered whether this prevailing view was still correct at that time. We were aware of several Security Council resolutions adopted under Chapter VII of the UN Charter that urged states to authorize humanitarian organizations to bring life-saving assistance to those in need. We strongly felt that these decisions by the world’s apex body on issues linked to armed conflict defied the idea that sovereignty included the right to say no to offers of humanitarian assistance even when to do so meant certain death for civilians caught up in armed conflict. We also turned to the International Covenant on Economic, Social and Cultural Rights which mandates States to work towards the full realization of the rights contained therein, including the right to adequate food and shelter and the right to health, not only “individually” but also “through international assistance and co-operation” (article 2). Some of us also felt that the duty to protect life as enshrined in the Covenant on Civil and Political Rights (article 6) would be violated if a state were to deny humanitarian access to people whose life was at stake due to a lack of assistance. Our conceptual decision to not create new law with the Guiding Principles but rather codify and explicitly state in this document what was already implicit in international law thus excluded the possibility to suggest a right to humanitarian access. Instead, we concluded that while decisions to grant or refuse humanitarian access continued to be a matter of sovereignty, saying “no” must be based on objective and serious reasons rather than frivolous political considerations. We gave expression to this idea by recognizing, in Principle 25, that while humanitarian actors “have the right to offer their services in support of the internally displaced,” the “primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities.” To this we added that consent to such offers “shall not be arbitrarily withheld.” Although we were on safe legal ground, this was nevertheless a bold step as no official UN document at that time mentioned the concept of a prohibition of arbitrary denial of humanitarian access.
International law is not static but rather continuously evolves, especially when faced with systematic and egregious violations of the rights of the human person. The International Law Commission, the UN expert body entrusted by the General Assembly to codify and progressively develop international customary law, is presently developing draft articles on the protection of persons in the event of disasters caused by natural or man-made hazards. In 2011 it adopted—at first reading—a provision that, while recognizing the requirement of state consent to the provision of external assistance, stresses: “Consent to external assistance shall not be withheld arbitrarily.” Eduardo Valencia-Ospina, the Commission’s Special Rapporteur for this project mentioned the Guiding Principles as one of the key sources for this provision.
Earlier this year, a further and even more important step was taken by the Security Council in terms of its legal authority. On February 22, it adopted Resolution 2139 (2014) on Syria where it not only found “that humanitarian aid delivery continues to be impeded throughout Syria,” but also recalled in one of the preambular paragraphs “that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including willfully impeding relief supply and access, can constitute a violation of international humanitarian law.” Consequently, it unequivocally demanded in the operational paragraphs of the resolution “that all parties, in particular the Syrian authorities, promptly allow rapid, safe and unhindered humanitarian access for United Nations humanitarian agencies and their implementing partners, including across conflict lines and across borders, in order to ensure that humanitarian assistance reaches people in need through the most direct routes.” While the resolution shies away from authorizing UN agencies to provide cross-border humanitarian assistance in the absence of authorization by the Syrian state, it sets a precedent of utmost importance.
Sudan is another country where humanitarian access has often been denied by authorities. In July of this year, Sudan was up for review of its state report under the Covenant on Civil and Political Rights. During the dialogue between the Human Rights Committee, the expert body monitoring the implementation of the Covenant, and a large Sudanese delegation, I had the opportunity to raise the issue of severe restrictions of humanitarian access, in particular in South Kordofan and Blue Nile provinces. In its Concluding Observations, the Human Rights Committee expressed its concern “at reports indicating that State party authorities have at times arbitrarily denied the timely access of life saving humanitarian assistance for civilian populations in some conflict-affected areas, particularly those controlled by rebel groups” and, referring to the right to life, recommended to Sudan to “[a]uthorize and facilitate the timely and unrestricted access of humanitarian assistance to civilian populations in all conflict-affected areas in full compliance with the prohibition of arbitrary denial of humanitarian access.”
This recognition of the prohibition of arbitrary denial of humanitarian access by three authoritative UN bodies are important steps as it can no longer be said that by virtue of international law decisions to refuse humanitarian access are within the permit of unlimited national sovereignty. Rather, they give specific content to a concept of sovereignty that puts the emphasis on the responsibility of states to protect those on their territory or under their jurisdiction. While certainly insufficient to ensure humanitarian assistance in all situations where it is needed, the recognition of a prohibition of arbitrary denial of humanitarian access as part of the legal duties of states is certainly a necessary element to enhance the protection of civilians in armed conflict, including internally displaced persons. At the same time, Security Council resolution 2139 and the other decisions discussed here are testimony of the enduring relevance of the Guiding Principles on Internal Displacement.