I. INTRODUCTION: SETTING THE SCENE
During a disaster,Footnote 1 homes, even entire villages and towns, might be destroyed. Large numbers of people thus become displaced and without shelter; food and water supplies quickly diminish, if they were not destroyed outright; sanitation tends to be inadequate, leading to the spread of disease; and medical treatment might be urgently needed. These are just a few of the issues that individuals face in the immediate aftermath of a disaster.
The needs of persons affected by a disaster can sometimes be met by the State affected by the disaster (‘affected State’) alone. The State might have the resources to meet the needs of the people affected in a timely manner. It might have previously drawn up plans to address situations such as those that ultimately unfolded. It might have the good fortune that lines of communication remain open and main roads and thoroughfares are not damaged. In such a situation, the affected State, although worse for wear, can address the situation, perhaps by declaring a state of emergency and channelling resources, funding, and personnel to affected areas. Humanitarian assistance from outside the State (‘external humanitarian assistance’) is not required.
All too often, though, following a major disaster, a State is unable to manage the situation by itself in a timely manner. This might be due to the magnitude of the disaster, the resources of the affected State, or a range of other factors. Even the wealthiest of States might have difficulties meeting the needs of affected persons; the response of the United States to hurricane Katrina being a case in point.Footnote 2 This poses serious problems for persons affected by the disaster.
The needs of those affected by a disaster should be established through the carrying out of needs assessments,Footnote 3 ideally jointly by the affected State and the UN. Needs assessments involve a determination of the impact of the disaster together with an analysis of the capacities of national and local actors to respond to the disaster.Footnote 4 In this way, any gaps can be identified. It is the government of the affected State that has the primary responsibility for addressing the needs of the affected persons.
At the same time, a major disaster, particularly a major sudden-onset disaster, is often met with an outpouring of support from the international community. The affected State might receive offers of external humanitarian assistance, numbering in the hundreds, from States, international organizations, and non-governmental organizations. This has the potential to alleviate the situation of affected persons. However, it can also result in a series of difficulties—ports and airstrips can become clogged, goods and services might not be of the sort required by affected persons or of the requisite quality, and volunteers might have the best of intentions but lack the necessary qualifications.
Accordingly, a number of international legal issues emerge relating to the provision of humanitarian assistance following a disaster, both in terms of the affected State and in terms of outside actors. These include whether an affected State is obliged to seek assistance; whether external actors are entitled to offer assistance proprio motu or only pursuant to a request on the part of the affected State; and the rights and responsibilities of an affected State following acceptance of assistance. Many of these issues are being, or have been, considered by the two main bodies working in the area of disaster response law, namely the International Law Commission (ILC) and the International Federation of the Red Cross (IFRC).Footnote 5 They are addressed in the range of instruments on disaster relief that exist, at the international, regional, and sub-regional levels. International human rights law also has a role to play in this regard.
One of the principal vexing issues in recent years has been the role of consent to external humanitarian assistance on the part of the affected State in situations in which it does not provide the necessary assistance itself.Footnote 6 The issue has been raised in stark terms in a number of disasters in recent years, most notably following cyclone Nargis in Myanmar in 2008.Footnote 7 It has also been raised, less starkly, in numerous other disasters, in which States have declined assistance from particular actors, such as following hurricane Katrina in the United States in 2005; and in which States have rejected assistance generally, such as India following the Indian Ocean tsunami in 2004.Footnote 8
The general issue that is raised is whether the consent of an affected State is always required before external humanitarian assistance can be provided. A requirement of consent would be consistent with State sovereignty and the prohibition on interference in the internal affairs of a State. However, the consequence would be that, in the absence of consent, the needs of persons affected by the disaster might go unmet. If consent is not a prerequisite to the provision of external humanitarian assistance, the needs of affected persons could be met. However, there would be a danger of hegemonic intervention,Footnote 9 as well as a risk of inappropriate goods being provided by inexperienced individuals. An intermediate position has been put forward by the ILC, namely that the consent of an affected State is required but that consent cannot be arbitrarily withheld.Footnote 10 A similar understanding exists in the provision of external humanitarian assistance in situations of armed conflict.Footnote 11 However, guidance on the meaning of arbitrary withholding of consent is sorely lacking. Despite setting out the standard of arbitrary withholding of consent, the ILC does not explain what is meant by the notion; an omission that has been criticized by States.Footnote 12 Guidance in the field of international humanitarian law is also limited. Accordingly, this article seeks to fill that gap.
Part II sets out the different approaches to consent taken in the various disaster relief instruments. It identifies a number of different approaches to consent, from an absolute requirement of consent on the part of the affected State before external assistance can be provided, to an obligation of the affected State to consent to offers of external humanitarian assistance, with several intermediate positions. Part III explores these seemingly different approaches and identifies a common standard along the lines of that set out by the ILC, namely that consent on the part of the affected State is required before external assistance can be provided but that consent cannot be arbitrarily withheld. Part IV, which forms the heart of the article, critically analyses the notion of arbitrary withholding of consent, breaking down the standard into its various substantive and procedural elements. It argues that, although the language of ‘arbitrary’ withholding of consent is used, actual uses of the term indicate that it is being used as a synonym for ‘unjustified’ withholding of consent. It follows that, in order to assess whether a particular withholding of consent is arbitrary or unjustified, the State that seeks to withhold consent must provide a reason for doing so. A legitimate aim must be being pursued through the withholding of the consent and the withholding must not violate fundamental human rights. Situations of disaster are considered and State practice analysed.
II. CONSENT: THEMES AND VARIATIONS
Different instruments take different approaches to the issue of consent to external humanitarian assistance on the part of the affected State. At one end of the spectrum, certain instruments require the consent of the affected State before humanitarian assistance can be provided. At the other end of the spectrum, certain other instruments posit that there is an obligation on the part of the affected State to consent to the provision of humanitarian assistance. In the middle are different approaches, including a prohibition on the arbitrary withholding of consent and a prohibition on withholding consent where the State is unable or unwilling to provide assistance itself.
A. Absolute Requirement of Consent
There is no overarching treaty on the issue of humanitarian assistance in situations of disaster. Instead, numerous subject-specific treaties, regional and sub-regional treaties, and a whole host of soft law instruments exist. A number of subject specific treaties provide that external humanitarian assistance can be provided only with the consent of the affected State.Footnote 13 Others provide likewise, albeit without using the language of consent. For example, the Framework Convention on Civil Defence Assistance provides that ‘[o]nly assistance requested by the Beneficiary State or proposed by the Supporting State and accepted by the Beneficiary State may take place’.Footnote 14 Still others take a different approach, arguably a stricter one, providing that external humanitarian assistance can be provided only pursuant to a request of the affected State.Footnote 15 On this approach, at least at first sight, ex post facto consent to the offer would not suffice. Instead, the initial request must stem from the affected State.
Regional treaties on humanitarian assistance also provide for the provision of external humanitarian assistance subject to the request or consent of the affected State.Footnote 16 While not using the language of consent, the Inter-American Convention to Facilitate Disaster Assistance is to similar effect. It regulates the situation in which ‘a state party furnishes assistance in response to a request from another State party, except as they otherwise agree’.Footnote 17
Thus for States parties to these regional treaties, external humanitarian assistance can only be provided with the consent, or upon the request, of the affected State. Likewise, for States parties to the subject-specific treaties, the particular form of external humanitarian assistance regulated by the relevant convention can only be provided with the consent, or upon the request, of the affected State.
B. Presumption of Requirement of Consent
Other instruments take a different approach to consent, providing that humanitarian assistance ‘should’ be delivered with the consent of the affected State. Along these lines, the Guiding Principles on Humanitarian Assistance, annexed to General Assembly Resolution 46/182, provide that:
The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. 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.Footnote 18
This is an important provision for a number of reasons. First, GA Res 46/182 remains the central resolution on UN efforts on humanitarian assistance. It is also one of the few instruments concluded by States at the international level on the matter of humanitarian assistance generally. As indicated above, most instruments on humanitarian assistance in situations of disaster are regional or subject-specific in their nature, or were concluded by actors other than States. Second, its approach is revealing. It reiterates the importance of the principles of State ‘sovereignty, territorial integrity, and national unity of States' and derives the need for consent from these principles, referring as it does to ‘[i]n this context’. Accordingly, understandings of sovereignty, including the idea of sovereignty as responsibility, will inform the requirement of consent.Footnote 19 Finally, humanitarian assistance ‘should’, rather than ‘shall’ or ‘must’, be provided with consent. Thus, while, in the ordinary course of events, assistance is to be provided with the consent of the affected State, this is not an absolute requirement. This is connected to a later provision in the Guiding Principles, which provides that ‘[s]tates whose populations are in need of humanitarian assistance are called upon to facilitate the work of these organizations in implementing humanitarian assistance’.Footnote 20
The IFRC Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance are formulated along similar lines.Footnote 21 The Annotations to the draft Guidelines note that the relevant provision is ‘drawn from’ GA Res 46/182. It also notes that consent is a requirement,Footnote 22 but this must be read in light of an earlier provision, which provides that, ‘[i]f an affected State determines that a disaster situation exceeds national coping capacities, it should seek international and/or regional assistance to address the needs of affected persons’.Footnote 23
This second approach, then, is also premised on the provision of consent on the part of the affected State. However, it reveals that the requirement of consent is not an absolute one.
C. Prohibition on Arbitrary Withholding of Consent
A more explicit limitation on an affected State's discretion as to whether to consent to the provision of external humanitarian assistance is the inclusion in some soft law instruments of the standard of arbitrary withholding of consent. In this vein, the 1989 Compostela Resolution of the Institut de Droit International provides that ‘[s]tates in whose territories these emergency situations exist [where the ‘life or health of the population is seriously threatened’] should not arbitrarily reject … offers of humanitarian assistance’.Footnote 24 The 2003 Bruges Resolution of the Institut puts the point in stronger terms:
Affected States are under the obligation not arbitrarily and unjustifiably to reject a bona fide offer exclusively intended to provide humanitarian assistance or to refuse access to the victims. In particular, they may not reject an offer nor refuse access if such refusal is likely to endanger the fundamental human rights of the victims or would amount to a violation of the ban on starvation of civilians as a method of warfare.Footnote 25
Insofar as one specific category of persons are concerned—internally displaced persons (IDPs)—the Guiding Principles on Internal Displacement provide that consent to offers in support of the internally displaced ‘shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance’.Footnote 26 Although the Guiding Principles are in soft law form, they contain a mix of hard and soft law obligations. Furthermore, they have been referenced in judicial decisions and resolutions of intergovernmental organizations, used by States and other actors to develop law and policy, and translated into hard law in certain States.Footnote 27 Thus, the Guiding Principles have stronger legal weight than their form might suggest. The Council of Europe has adopted a recommendation along similar lines as that of the Guiding Principles. Recommendation (2006)6 notes that: ‘[p]rotecting internally displaced persons and their rights as well as providing humanitarian assistance to them is a primary responsibility of the state concerned’ and that ‘[t]his responsibility also entails not to arbitrarily refuse offers from other states or international organisations to provide such aid’.Footnote 28
The Guiding Principles and the Council of Europe Recommendation are limited in their subject matter to internally displaced persons. However, having accepted an obligation not to arbitrarily withhold consent insofar as humanitarian assistance to IDPs is concerned, there is a stronger case for extending the obligation to persons who are not internally displaced. At least from a protection of persons perspective, it would be unfortunate for there to be one rule on humanitarian assistance in respect of internally displaced persons and another for persons who are not so displaced.
In its draft Articles on the Protection of Persons in the Event of Disasters, the International Law Commission has provisionally adopted an Article that provides, in part, that ‘[t]he provision of external assistance requires the consent of the affected State’.Footnote 29 This was approved by a number of States.Footnote 30 However, ‘concern was manifested at imposing such a legal obligation, which could undermine the current practice of international cooperation and solidarity’.Footnote 31 The first part of the Article must be read together with the second part, namely that ‘[c]onsent to external assistance shall not be withheld arbitrarily’.Footnote 32 This too was welcomed by a number of States,Footnote 33 while a few others opined that ‘the affected State had a right to decide whether to request or accept humanitarian assistance and that no customary international law or State practice provided for the obligation on the part of an affected State to accept outside assistance’.Footnote 34
D. Inability or Unwillingness to Provide Assistance
Other instruments also limit a State's discretion to withhold consent to the provision of external humanitarian assistance, but do so by referencing the inability or unwillingness of an affected State to provide the necessary assistance to affected persons. Along these lines, the Mohonk Criteria, which was drawn up by representatives of relief agencies, the UN, and humanitarian assistance experts, provide:
Where the government or other authority is unable or manifestly unwilling to provide life-sustaining aid, the international community has the right and obligation to protect and provide relief to affected and threatened civilian populations in conformity with the principles of international law.Footnote 35
E. Obligation to Consent
A final approach taken by some instruments is an obligation of the affected State to consent to the provision of external humanitarian assistance. In this vein, the IFRC/ICRC Recommendations on Disaster Relief note:
If NGHAs [non-governmental humanitarian agencies] are to act in full compliance with their humanitarian principles, they should be granted rapid and impartial access to disaster victims, for the purpose of delivering humanitarian assistance. It is the duty of the host government, as part of the exercising of sovereign responsibility, not to block such assistance, and to accept the impartial and apolitical action of NGHAs.Footnote 36
The Security Council might also require a State to consent to the provision of external humanitarian assistance by adopting a resolution under Chapter VII of the UN Charter demanding that the State allow relevant actors to conduct relief operations. However, to date, this has never taken place in a situation of disaster.
III. A COMMON STANDARD
As is evident from the above, different instruments take different approaches to the issue of consent to the provision of external humanitarian assistance. Although, at first sight, the standards are vastly different, the approaches largely converge towards the same standard, namely that consent is required before external assistance can be provided but that consent cannot be arbitrarily withheld.
All of the approaches require consent on the part of the affected State. Some do so absolutely, seemingly without exception; others do so presumptively; still others require that consent be granted in certain circumstances; others yet require that consent always be given. Consent is important for reasons of sovereignty and of practicality. With a general obligation to accept assistance comes a danger of ‘interventions with ulterior motives’.Footnote 37 The requirement of consent is also important for very practical reasons. Should consent not be a requirement, hundreds of actors might descend on the State, some of whom might not have the necessary expertise, albeit arriving with the best of intentions. As a consequence, airports, docks, and roads become congested and personnel from the affected State have to be diverted from important tasks. Indeed, it has been observed that affected States that have operated an ‘“open door” policy … have encountered problems of supply-driven thinking, non-professional relief workers (often with their own particular goals) and the blocking of appropriate aid’.Footnote 38 A requirement of consent thus serves also to protect persons affected by a disaster. In this way, consent operates both as a shield and a sword. Furthermore, it is very difficult to coordinate and deliver humanitarian relief on the ground in the absence of the consent of the State. Relief operations, with their delivery of goods and provision of services to affected persons, are made far more difficult if such delivery and provision has to be carried out in a clandestine manner. Accordingly, it is unrealistic to oblige an affected State to accept all external humanitarian assistance offered; and this would not necessarily be a good thing.
This does not mean that consent can be withheld in any and all circumstances and regardless of the situation on the ground. International human rights law requires an affected State to provide its consent to the provision of external humanitarian assistance in certain instances. The situation faced by individuals in the aftermath of a disaster—with loss of housing, shortages of food and water, and the like—affects their human rights. If a State is unable to fulfil those rights itself, it is required to seek international support to assist it to do so.Footnote 39 The International Covenant on Economic, Social and Cultural Rights (ICESCR) expressly refers to a State party taking steps, ‘individually and through international assistance and co-operation’, with a view to the progressive realization of economic, social, and cultural rights.Footnote 40 The Maastricht Principles provide that ‘[a] State has the obligation to seek international assistance and cooperation on mutually agreed terms when that State is unable, despite its best efforts, to guarantee economic, social and cultural rights within its territory.’Footnote 41 For its part, the Committee on Economic, Social and Cultural Rights (CESCR) has noted:
In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.Footnote 42
These resources include not only those of the State affected by the disaster but resources that have been offered to that State.Footnote 43 Indeed, in giving content to the notion of maximum available resources, the Committee has noted that the phrase ‘refers to both the resources existing within a State as well as those available from the international community through international cooperation and assistance’.Footnote 44 Accordingly, if States parties to the ICESCR are unable to cater sufficiently for persons affected by a disaster, they are required to cooperate with third parties, such as States and international organizations, which are willing to provide the necessary assistance to affected persons. This implies ‘a duty not to withhold consent arbitrarily’ to offers of external humanitarian assistance.Footnote 45 Failure to do so could be considered to constitute a refusal on the part of the affected State to make use of the maximum of its available resources to progressively realize Covenant rights. Insofar as human rights law is concerned, then, requests for international assistance and acceptance of offers of assistance are an important part of a State's obligation.
This approach is also reflected in the two middle positions considered above, namely a presumption of a requirement of consent and the unable or unwilling standard. GA Res 46/182, which utilizes the presumption of a requirement of consent, provides that humanitarian assistance should be provided with the consent of the affected State but that, where people are ‘in need of humanitarian assistance’, the affected State should ‘facilitate the work’ of humanitarian organizations.Footnote 46 Conversely, the approach relating to the inability or unwillingness of an affected State to provide assistance is best interpreted not as a standard in its own right but as two situations in which consent cannot be withheld given that such withholding would be arbitrary. Indeed, the Guiding Principles on Internal Displacement give the examples of inability and unwillingness precisely as two situations in which consent shall not be arbitrarily withheld.Footnote 47
Soft law is also converging around the standard of arbitrary withholding of consent, as is evident from the Institut de Droit International's resolutions, the International Law Commission's draft Articles, and the Council of Europe's Recommendation on internally displaced persons.Footnote 48 It should also be recalled that the Guiding Principles on Internal Displacement, which adopts this approach, has been treated as hard law by a number of States. Indeed, it was translated into a treaty through the Great Lakes Protocol.Footnote 49
The position is made more complex by the subject-specific and regional treaties that seemingly require consent to be granted before external humanitarian assistance can be provided. As discussed above, there are two variations on this approach—a requirement of consent and a requirement of a request for assistance. In practice, the stricter standard, of a requirement of a request for assistance, is often considered satisfied if a State consents to an offer of assistance. Some instruments make this point explicitly, with the Inter-American Convention to Facilitate Disaster Assistance, for example, providing that ‘acceptance by a state party of an offer of assistance from another state party shall be considered to be a request for such assistance’.Footnote 50 Others do so implicitly, linking requests with acceptances of offers.Footnote 51 The seemingly absolute requirement of consent can also be interpreted in a different manner, namely as requiring consent but prohibiting arbitrary withholding of that consent.
The international humanitarian law standard has been understood in precisely this manner. In international armed conflicts, if basic needs of civilians are not met, ‘relief actions … shall be undertaken, subject to the agreement of the Parties concerned in such relief actions’.Footnote 52 At first sight, the meaning of this provision is unclear given that, on the one hand, the provision seems absolute (humanitarian assistance ‘shall be undertaken’) and, on the other hand, it is made contingent on ‘the agreement of the Parties concerned’. The drafting history clarifies matters. The clause on consent was added for reasons of sovereignty.Footnote 53 However, during the Diplomatic Conference at which the Protocol was adopted, the Delegate of the Federal Republic of Germany noted that the clause ‘did not imply that the Parties concerned had absolute and unlimited freedom to refuse their agreement to relief actions' and stated that ‘[a] Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones’.Footnote 54 This understanding was supported by a number of States,Footnote 55 and the ICRC Commentary notes that no delegation opposed this view and that ‘the expression should be interpreted in this sense’.Footnote 56 As another influential commentary puts it:
The clause states the obvious. A person or an organization willing to undertake a relief action cannot just rush from one country through another country to a third country without asking the competent authorities of those countries for their permission. On the other hand, the clause does not mean that the parties concerned have unfettered discretion to refuse the agreement. If this were so, the first part of the sentence, imposing an obligation that relief actions shall be undertaken, would be devoid of sense. If this obligation is to be preserved, there must be an obligation for the parties concerned to grant the agreement. On the other hand, neither can the requirement of an agreement be reduced to a mere formality. Both parts of the sentence have to have their weight: the obligation and the requirement of an agreement. An interpretation which does justice to both these elements is that the agreement has to be granted as a matter of principle, but that it can be refused for valid and compelling reasons. Such reasons may include imperative considerations of military necessity. But there is no unfettered discretion to refuse agreement, and it may not be declined for arbitrary or capricious reasons.Footnote 57
The position is largely similar in situations of non-international armed conflict,Footnote 58 and the equivalent provision in the law of non-international armed conflict is to be interpreted in the same manner.Footnote 59 Practice is along similar lines.Footnote 60 For example, in 2014, during the non-international armed conflict in Syria, the Security Council provided in Resolution 2139 that, ‘arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law’.Footnote 61 One month after the Resolution was adopted, the UN Emergency Relief Coordinator stated that ‘[t]he rules of international humanitarian law are … clear. The continued withholding of consent to cross-border or cross-line relief operations, particularly of commodities privileged throughout the Geneva Conventions—like food, water, medical treatment and supplies, or shelter —is arbitrary and unjustified.’Footnote 62 In Security Council Resolution 2165, the Security Council indicated that it was ‘[d]eeply disturbed by the continued, arbitrary and unjustified withholding of consent to relief operations and the persistence of conditions that impede the delivery of humanitarian supplies to destinations within Syria, in particular to besieged and hard-to-reach areas’ and noted ‘the United Nations Secretary-General's view that arbitrarily withholding consent for the opening of all relevant border crossings is a violation of international humanitarian law and an act of non-compliance with resolution 2139 (2014)’.Footnote 63 Views of commentators are to similar effect.Footnote 64
There are a number of differences between situations of armed conflict and situations of disaster that mean that care must be taken before drawing from concepts applicable in one to the other.Footnote 65 It has been suggested that ‘armed conflicts tend to be both temporary and of themselves entail serious disruptions of sovereignty rendering more justifiable a heightened and strengthened obligation’ and that ‘[t]his is less the case with natural disasters’.Footnote 66 Conversely, States tend to be more wary of the provision of external humanitarian relief in situations of armed conflict, sometimes considering it interference in the armed conflict and a way of assisting the other side. More fundamentally, armed conflicts are premised on the idea of opposing Parties, a relationship that tends not to exist in situations of disaster. Furthermore, the balance between humanity and military necessity, on which international humanitarian law is built, is not present in the law applicable following a disaster.
There are also differences of history and language in the law that applies during an armed conflict and following a disaster. In international humanitarian law, the ‘arbitrary withholding’ understanding of the provision was put forward by a State during the diplomatic conference, accepted by a number of other States, and has since been reflected in the practice of conflicts. Disaster relief law provisions do not benefit from the same storied history. The language of certain disaster law instruments is also seemingly stricter, providing that ‘external assistance … shall only be provided upon the request or with the consent of the affected Party’.Footnote 67
Despite the differences between armed conflicts and disasters and the law applicable to them, the underlying legal issue is the same. A State cannot arbitrarily refuse offers of external humanitarian assistance if, in doing so, it violates certain of its other international legal obligations. The ICRC Commentary notes explicitly that the relevant international humanitarian law provision must be understood in this manner, as a refusal without good grounds would lead the Party to the conflict to breach its other obligations, namely the prohibition on starvation as a method of combat.Footnote 68 This is equally true of situations of disaster. The requirement of consent has to be understood in the manner described above in order for a state to avoid breaching its obligations under human rights law.Footnote 69 A test similar to the one in international humanitarian law therefore applies because the broader legal issue is the same.
The fact that, in international humanitarian law, the prohibition on starvation and the rule on humanitarian assistance can be found in the same instrument, whilst this is not the case in disaster relief instruments is immaterial. The link between the withholding of consent and a State's human rights obligations emerges in various instruments on humanitarian assistance in situations of disaster. Whilst providing for the sovereignty of States and their ‘primary role in the initiation, organization, co-ordination and implementation of humanitarian assistance’, certain General Assembly resolutions also provide ‘that the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitutes a threat to human life and an offence to human dignity’.Footnote 70 The General Assembly recognizes, albeit opaquely, that respect for the right to life requires that a State cannot withhold its consent to the provision of external humanitarian assistance as it sees fit. The point has also been made more clearly by the Institut de Droit International:
Affected States are under the obligation not arbitrarily and unjustifiably to reject a bona fide offer exclusively intended to provide humanitarian assistance or to refuse access to the victims. In particular, they may not reject an offer nor refuse access if such refusal is likely to endanger the fundamental human rights of the victims or would amount to a violation of the ban on starvation of civilians as a method of warfare.Footnote 71
Furthermore, the role of the State in the protection of persons affected by the disaster informs the provisions on consent. That the primary responsibility to protect affected persons is vested in the affected State is set out in a number of instruments.Footnote 72 A number of other instruments provide for the primary role of the State in the direction, control, coordination, and supervision of the assistance.Footnote 73 As noted in the Guiding Principles on Humanitarian Assistance, this follows on from the primary responsibility of the State to protect affected persons:
Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence, the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.Footnote 74
Accordingly, the responsibility of the affected State to protect persons affected by the disaster can be considered implicit in those instruments that provide for the primary role of the State in the coordination of the assistance. A State that arbitrarily or unjustifiably withholds consent cannot be said to be protecting the affected population. Indeed, the responsibility to protect the affected population requires that consent not be arbitrarily or unjustifiably withheld. This is the position taken in Council of Europe Recommendation 2006(6), which provides that ‘[p]rotecting internally displaced persons and their rights as well as providing humanitarian assistance to them is a primary responsibility of the state concerned’ and which continues, ‘[t] his responsibility also entails not to arbitrarily refuse offers from other states or international organisations to provide such aid’.Footnote 75
Ultimately, then, despite the seemingly different standards, there is, in fact, a common standard, namely that an affected State has to consent before external humanitarian assistance can be provided but that consent cannot be arbitrarily withheld. Indeed, no State will claim the ability to arbitrarily withhold consent. Rather, the argument that a State would make is that the withholding in the particular circumstance is not arbitrary. Hence, the meaning of ‘arbitrary’ withholding of consent is crucial and forms the subject of the next Part.
IV. UNDERSTANDING THE NOTION OF ‘ARBITRARY’ WITHHOLDING OF CONSENT
Although the arbitrary withholding standard has been put forward by the ILC and is increasingly accepted, there is very little guidance on what actually renders a withholding ‘arbitrary’. The commentary of the ILC to the draft Article setting out this standard provides little by way of guidance; an omission that was criticized by a number of States.Footnote 76 For example, Israel was of the view that ‘[t]he term “arbitrarily” could give rise to difficulties of interpretation and should be further clarified’.Footnote 77 The United Kingdom observed that that it ‘was not clear how arbitrary refusal would be determined’.Footnote 78 Malaysia indicated that the standard ‘required further clarification’ and noted that ‘[f]urther explanation of the proposed test … was therefore needed’.Footnote 79 The lack of guidance on point is not particular to the ILC. The general ‘paucity of analysis regarding aid-refusal’ and the difficulty in ‘establishing standards against which to test the arbitrariness of aid-refusals’ has been noted.Footnote 80 The standard has been used in international humanitarian law for far longer, but that context too suffers from a dearth of analysis. As another author notes in the context of international humanitarian law:
There is no definition or guidance in any treaty and, to date, the issue has not been addressed by any international or national tribunal, human rights mechanism or fact-finding body. It is extremely difficult to determine – legally and factually – whether consent to relief operations has been withheld arbitrarily in a particular situation.Footnote 81
This is equally true of situations of disaster. Furthermore, interpretation of the notion of ‘arbitrary’ withholding of consent in the literature is also lacking. Accordingly, this section seeks to provide some content to the notion and offers a framework for understanding the standard.
A. The Meaning of ‘Arbitrary’
Although the term ‘arbitrary’ withholding of consent is often used in this context, it tends to be used in the sense of unreasonable or unjustified. Thus, commenting on the draft Article of the ILC, one State proposed substituting ‘arbitrary’ for ‘unreasonable’.Footnote 82 Along related lines, the Institut de Droit International refers to the obligation ‘not arbitrarily and unjustifiably to reject’ bona fide offers of humanitarian assistance.Footnote 83 This can also be seen from the notion of arbitrariness in the withholding of consent to humanitarian assistance in international humanitarian law. As noted above, during the drafting of the Additional Protocol I rule on the provision of humanitarian assistance, one State opined, and others agreed, that, ‘[a] Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones’.Footnote 84 Valid reasons were thus considered a counterpart to arbitrary or capricious ones. Likewise, an influential commentary on the Additional Protocols provides that the consent of the State ‘has to be granted as a matter of principle, but … it can be refused for valid and compelling reasons. … there is no unfettered discretion to refuse agreement, and it may not be declined for arbitrary or capricious reasons.’Footnote 85 The arbitrariness of the reason for withholding consent is thus determined by reference to the validity of the reason. This can also be seen in the debates surrounding the provision of external humanitarian assistance in the context of the non-international armed conflict in Syria, in which the language of ‘arbitrary and unjustified’ is used.Footnote 86 Thus, although the word arbitrary is often used in this context, it bears a broad meaning.
Such a position is true of domestic administrative law. In the context of the administrative law of England and Wales, the term ‘arbitrary’ or ‘arbitrary and capricious’ tends to be used synonymously with ‘unreasonable’.Footnote 87 For example, in the eighteenth-century case of Leader v Moxon, the court noted that the powers of the relevant commissioners ‘must have a reasonable construction. Their discretion is not arbitrary, but must be limited by reason and law.’Footnote 88 The term ‘unreasonable’ itself covers a range of grounds for reviewing a decision, such as failing to consider matters that must be considered, taking into account matters that are irrelevant, errors of law, and a decision being so unreasonable that no reasonable body could have come to it.Footnote 89 In administrative law in the United States, the ‘arbitrary and capricious’ standard covers such issues as where the government agency relied on extraneous factors, ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before’ it, or was ‘so implausible that it could not be ascribed to a difference in view or the product of agency expertise’.Footnote 90 Arbitrariness is thus less of a self-standing concept and more of a signifier for other factors.
This comes through also from the use of the term in international human rights law. In the context of arbitrary arrest or detention in the ICCPR,Footnote 91 the concept of arbitrary is understood as not equated solely with ‘against the law’ but also to include elements of inappropriateness, injustice, lack of predictability, and lack of due process of law.Footnote 92 Not only must the conduct be lawful but it must be reasonable and necessary in the circumstances.Footnote 93 Failure to comply with other ICCPR rights will also affect this determination.Footnote 94 Likewise, arbitrary interference with privacy in the ICCPR,Footnote 95 is judged by reference to whether the potentially infringing actions are in ‘accordance with the provisions, aims and objectives of the Covenant’ and whether they are ‘reasonable in the particular circumstances’.Footnote 96 The same is true of arbitrary denial of entry into one's own country.Footnote 97 Reasonableness, in turn, contains elements of necessity and proportionality—the conduct in question must be necessary in the circumstances and proportionate to the end being sought.Footnote 98 Likewise, the prohibition on arbitrary deprivation of life in the ICCPR contains elements of necessity and proportionality.Footnote 99 Accordingly, the concept of arbitrariness is a much broader one than the ordinary meaning of the term might suggest.
The various components that make up the concept of ‘arbitrariness’ have a unifying theme, namely whether the conduct in question can be justified. This can be seen from language such as ‘inappropriate’, ‘injustice’, and ‘unreasonable’. The concept of arbitrariness is, then, essentially a signifier for the unjustified and it is the justification for the denial of the consent that is crucial.
Indeed, any other approach would be overly limiting. For example, if a State consistently refuses to consent to the provision of humanitarian assistance, it is not acting in an arbitrary manner, in the sense of it being uncertain or capricious. Its conduct is not random; indeed, quite the opposite; it is acting consistently with its long-standing practice. Instances of such an approach are not uncommon. Following the 2004 Indian Ocean tsunami, and again following an earthquake in Kashmir in 2005, India refused to accept external humanitarian assistance. In 2013, a spokesperson for the Ministry of External Affairs stated that ‘[a]s a general policy in case of rescue and relief operations, we have followed the practice that we have adequate ability to respond to emergency requirements’.Footnote 100 As such, although the term ‘arbitrary’ is used in the context of the withholding of consent, it tends to be used in the broader sense of unjustified.
Reframing the issue to focus on the justification for the withholding of consent is instructive for a number of reasons. First, there must actually be a justification on the part of the State; the State is required to explain its decision to withhold consent. Second, reasons for refusing assistance that are justified and those that are not will have to be clarified. Third, the reason must be assessed by another actor to establish whether the withholding is justified. Each of these issues will be explored in turn. These three aspects are also central to the ‘arbitrary’ standard, even if that standard is not understood as one of justification. Only if a reason is provided, judged by another actor, and considered valid can the withholding of consent not be considered arbitrary. However, the aspects are brought more clearly into focus through the lens of justification.
B. Requirement to Provide a Reason
Following an offer of external humanitarian assistance, the affected State will have to accept or reject the offer. If the offer is rejected, the State will have to provide a reason for the rejection.Footnote 101 Although at first sight novel and what might be considered an encroachment on the sovereignty of the State,Footnote 102 the requirement to give a reason is simply a counterpart to the obligation not to arbitrarily withhold consent. It is only through the provision of a reason that the arbitrariness, or not, of the justification can be assessed. If no reason is provided, the necessity of the justification and the other components of the arbitrariness standard cannot be assessed. A justification also enables a withholding State to demonstrate the validity of its withholding. In a different context, commenting on an obligation to provide reasons, the ICJ has noted that a brief ‘explanation was called for. This is not only a matter of courtesy. It also allows the requested State to substantiate its good faith in refusing the request.’Footnote 103 Certain concerns on the part of the State might also be able to be met by assisting actors. Indeed, consent is sometimes withheld when the concerns can be met, for example, through allowing a State to check the assistance or put certain other conditions on the delivery of the assistance. Accordingly, the duty to provide a reason is neither a new obligation nor does it constitute interference in the internal affairs of the State. As the Special Rapporteur of the ILC put it, ‘the decision to reject humanitarian assistance implies an obligation of the affected State to, at least, furnish the assisting State with legitimate grounds to substantiate such a decision’.Footnote 104 Likewise, in the context of offers of international assistance in the field of economic, social, and cultural rights, it has been suggested that ‘the burden of justifying the rejection of assistance would rest with the receiving state’.Footnote 105
The obligation to provide reasons is also an important aspect of the rule of law and has been described as ‘one of the fundamentals of good administration’.Footnote 106 Indeed, it has been suggested that ‘any decision maker under an obligation to give reasons may be less prone to arbitrary, capricious, self-interested, or otherwise unfair judgment than one under no such obligation’.Footnote 107 The duty to provide reasons is particularly important in instances in which the original decision may be challenged; and it contributes to transparency.Footnote 108
In practice, oftentimes, an affected State does provide a reason for the withholding of consent or the rejection of an offer. As discussed below, this is usually because the affected State considers itself able to meet the needs of the affected persons itself. At other times, the rejection relates to the relationship between the affected State and the entity that offers the assistance. It is not clear, though, that a reason is provided due to a sense of legal obligation.
The reason must be provided in a timely manner in order that the necessary relief can be provided. Indeed, the situation of persons affected by a disaster can be, and has been, made considerably worse by the failure of a State to react in a timely manner to offers of assistance. The response of Myanmar to offers of humanitarian assistance following cyclone Nargis in 2008 is a case in point.Footnote 109 Timeliness is stressed in some conventional law, with the Framework Convention on Civil Defence Assistance, for example, providing that ‘[o]ffers of, or requests for, assistance shall be examined and responded to by recipient States within the shortest possible time’.Footnote 110
Should the affected State fail to provide a reason, there will be a presumption that the withholding of consent is unjustified or arbitrary. The presumption is a rebuttable one and will be rebutted if the facts on the ground indicate that the State is, in fact, providing adequate humanitarian assistance to the affected population, that this is being done by entities within the State, or through the assistance of actors to which the affected State has consented.
To be clear, this only arises following a determination on the part of the actor offering assistance that unmet needs exist. That determination should take place through the carrying out of a needs assessment.Footnote 111 Accordingly, the original burden of proof is on the actor offering assistance.Footnote 112 Once that burden is satisfied, it shifts to the affected State to justify its withholding of consent.
C. Justified and Unjustified Withholdings: Legitimate Aim
Following the provision of a reason, the reason will have to be assessed to determine its validity. The affected State must be pursuing a legitimate aim through the withholding of consent. Although each case must be considered on its own terms, some general guidance can be provided.
If an affected State indicates that it is able and willing to provide the humanitarian assistance that is needed, this is prima facie a valid reason for the withholding of consent. Indeed, practice suggests that this is the principal reason for withholding consent. There are numerous examples of offers of assistance not being accepted because the affected State was of the view that it could meet the unmet needs itself. For example, following floods in Mexico in 1999, the Deputy Interior Minister is reported to have said ‘[a]t this stage, we don't need foreign aid’.Footnote 113 In the immediate aftermath of the Indian Ocean tsunami (2004), the government of India indicated that ‘while it deeply appreciated the offers of assistance from foreign governments and international agencies, it had the capabilities and resources to deal with the aftermath of the disaster through its own national effort’.Footnote 114 Following the 2005 earthquake in Kashmir, India made a similar point, with a spokesman for the Foreign Ministry stating that ‘[w]e ourselves are taking care of our victims’ and that ‘[w]hen there are offers by friendly countries and anything is needed, these offers are considered’.Footnote 115 A similar position was taken by Pakistan after floods in 2012, with the National Disaster Management Authority quoted as stating that ‘[t]he government's point of view is that the situation will be handled from own resources’.Footnote 116 Likewise, following floods in the United Kingdom in 2014, the Government indicated that, while it was ‘grateful’ for assistance offered, offers of equipment were not needed.Footnote 117 It is perfectly proper for a State to decline offers of assistance if the needs of the affected persons are being met. If there are no unmet needs, any external humanitarian assistance might end up clogging transport routes and diverting personnel and resources away from where they are needed.
However, there needs to be a way of differentiating between withholdings of consent in situations where a State actually is meeting the needs of affected persons and where the statement is unrealistic or a façade. In order to establish that it has the relevant resources to meet the needs of the affected persons, the affected State should have conducted a needs assessment. Otherwise, its indication will be little more than guesswork. Indeed, the IFRC Guidelines provide that ‘[t]he affected State should decide in a timely manner whether or not to request disaster relief or initial recovery assistance and communicate its decision promptly. In order to make this decision, the affected State should promptly assess needs.’Footnote 118 Likewise, in the context of the right to housing, the Committee on Economic, Social and Cultural Rights noted that, ‘[f]or a State party to satisfy its obligations under article 11(1) [of the ICESCR] it must demonstrate, inter alia, that it has taken whatever steps are necessary, either alone or on the basis of international cooperation, to ascertain the full extent of homelessness and inadequate housing within its jurisdiction’.Footnote 119 This is also seen in the practice of disasters. Following the 2010 earthquake in Chile, President Bachelet is reported to have ‘asked for foreign nations to delay sending aid until the extent of the crisis became clear’.Footnote 120 Likewise, the Foreign Minister is reported to have said: ‘[w]e are very grateful for people's good intentions, but let's let the (Chilean) emergency office get its very specific report on needs done’ and that ‘[a]ny aid that arrives without having been determined to be needed really helps very little’.Footnote 121 To take another example, following the Indian Ocean tsunami, Myanmar ‘responded promptly in making an early [needs] assessment, the result of which correlated closely with subsequent assessments by other organizations’.Footnote 122
If, following the State's confirmation that it has the necessary resources, the situation on the ground reveals that the State is not providing the needed assistance or not providing it in the appropriate manner,Footnote 123 the prima facie valid reason for withholding consent is rebutted and the State will be obliged to consent to the provision of external humanitarian assistance. In a number of the instances in which a State first declines offers of assistance or fails to request assistance, it later reverses its decision. This is often due to a variety of factors, such as receiving further information on the scale of the situation, as in the case of Guatemala following tropical storm Stan in 2005;Footnote 124 domestic pressure, such as in Mexico following floods in 1999;Footnote 125 international pressure, for example in the case of Myanmar following cyclone Nargis in 2008;Footnote 126 or a combination thereof.
An affected State may also validly withhold its consent in respect of inappropriate humanitarian assistance. In situations in which the humanitarian assistance being offered is not of the type that is needed by the affected population, for example food aid being offered when it is not food but medicine that is in short supply, consent can be validly withheld. Although perhaps surprising, this is by no means unusual in the practice of assistance following a disaster. Indeed, the IFRC has noted that:
in each of the major disaster operations of 2004–2005, massive amounts of unneeded and inappropriate aid were brought in, including mountains of used and unsuited clothing, expired medications, duplicative and unnecessary field hospitals, culturally unacceptable food and other inappropriate items.Footnote 127
Hence, a number of conventions require an affected State to indicate the type of assistance required.Footnote 128 Likewise, where assistance has already been accepted that will cater for the needs of the affected persons, equivalent assistance on the part of other actors can be refused.Footnote 129 Again, it should be recalled that, in practice, an affected State may receive offers from hundreds of States, inter-governmental organizations, and non-governmental organizations.
An affected State may also validly withhold its consent in respect of certain actors. This might arise where the entity offering the humanitarian assistance is not acting in accordance with the humanitarian principles of humanity, impartiality, and neutrality.Footnote 130 For example, consent could be withheld in respect of an outside State that has previously used the provision of assistance to gather intelligence. Indeed, the IFRC Guidelines note that the provision of external assistance is not to be used ‘as a means to gather sensitive information of a political, economic or military nature that is irrelevant to disaster relief or initial recovery assistance’.Footnote 131 Likewise, consent could be withheld in respect of assistance that is made conditional on, for example, political issues. This was the case with an offer of assistance from Iran to the United States following hurricane Katrina, which was contingent on the lifting of sanctions.Footnote 132 The possibility of refusal in situations such as these is important given the politics of providing humanitarian assistance.Footnote 133 Alternatively, there might be doubts surrounding a particular organization, for example if it is inexperienced,Footnote 134 or does not have a good track record.Footnote 135
Practice would also suggest—although this is perhaps more contentious—that a State can validly withhold consent in respect of actors with which the State does not have friendly relations. This includes States that do not recognize one another, with which there are no diplomatic relations, or that are in conflict with one another. For example, following hurricane Katrina, Cuba offered to send doctors to the United States to treat wounded individuals but the offer was declined.Footnote 136 Conversely, following hurricane Charley in 2004, the United States offered Cuba assistance but the offer was rejected. The Cuban Foreign Ministry reportedly responded that ‘Cuba will not accept supposed help from the government of a country that harms us and tries to take us under with hunger and need’.Footnote 137 Likewise, following the 2003 earthquake in Bam, Iran, a spokesman for the Interior Ministry reportedly stated that ‘[t]he Islamic Republic of Iran accepts all kinds of humanitarian aid from all countries and international organizations with the exception of the Zionist regime’.Footnote 138 Assistance from Israel was offered to Egypt following an earthquake in 1992, but the assistance was rejected.Footnote 139 It is by no means always the case that offers from unfriendly States will be rejected. Also following the Bam earthquake, the United States offered assistance to Iran, which was accepted.Footnote 140 Following the 2005 earthquake in Kashmir, India offered, and Pakistan accepted, humanitarian assistance.Footnote 141
The examples set out above, of situations in which consent can be validly withheld relate to situations in which there are no unmet needs, the offered assistance does not match the needs, or the offers emanate from questionable actors or actors with (perceived or actual) questionable motives. In situations where there are unmet needs, with correlating offers of assistance from impartial and humanitarian actors, there are very few instances in which the withholding of consent will be considered valid. The principal such instance is where imperative reasons of military necessity prevent the acceptance of assistance, for example if the situation is a mixed one of disaster and armed conflict. This mirrors the situation of armed conflict, in which such necessity is the principal justification for the withholding of consent.Footnote 142 Outside the context of an armed conflict, the situations in which the withholding of consent can be justified are even fewer. This is appropriate given that, in international humanitarian law, the principal instance of withholding of consent relates to the balance between humanity and military necessity on which all of its rules are built. Such a balance is not found in peacetime. This is not to suggest that, therefore, a State can never withhold its consent. Outside a mixed disaster–conflict situation, there might still be an occasional valid reason for withholding consent, such as if imperative security reasons prevent it, for example if there is a major policing operation going on in the area. Purported reasons such as ‘State sovereignty’ or ‘building a self-sustaining society’ would not constitute valid grounds for withholding consent.
Conversely, if an affected State indicates that it is unable to provide the necessary goods and services itself, it will be obliged to provide its consent to the provision of external humanitarian assistance. In coming to this conclusion, the State will consider various factors including the scale of the disaster, the number of persons affected, and its resources. It includes situations in which a State does not possess all of the necessary resources, for example, it is only able to provide for part of the affected population or to cater for certain of their needs. Likewise, the assistance must be provided in a timely manner. As such, if the State is unable to reach the affected population due to the location of the disaster, for example in a place that it is difficult to reach or if the infrastructure has been destroyed, a State will be obliged to consent to the provision of external humanitarian assistance. This may take the form of logistical support, airlifting of supplies, or delivery of assistance through a neighbouring State.
Indeed, the practice of disasters suggests that blanket withholding of consent to external humanitarian assistance in situations where there are unmet needs is uncommon. A study of 77 sudden-onset disasters in developing States in the period between 1982 and 2006 found that in only 2 disasters, disaster aid was refused from more than 2 aid sources; in only 8 disasters, disaster aid was refused from 1 or 2 aid sources; and in 9 disasters there was a threatened refusal and delayed acceptance.Footnote 143 Affected States that appear to withhold their consent generally, in fact request or allow very specific forms of assistance from particular actors. For example, following the Indian Ocean tsunami, although India declined international assistance, it sought the ‘setting up [of] five mobile water purification units for the Andaman and Nicobar Islands’.Footnote 144 Even the disaster that is regularly cited to the contrary is rather more nuanced than is sometimes suggested. In the immediate aftermath of cyclone Nargis, Myanmar consented to international assistance that was channelled through the Government and authorized UNICEF, WFP, UNDP, and Save the Children—all of whom were already in the country—to respond to the cyclone.Footnote 145 Far more common is delayed consent on the part of the affected State or delayed requests for assistance.Footnote 146
Compliance with a State's human rights obligations will inform whether the State's conduct is arbitrary or unjustified. As discussed above, in interpreting the ‘arbitrary’ standard for the purposes of ascertaining whether certain actions constitute arbitrary arrest or detention, arbitrary interference with privacy, or arbitrary denial of entry into one's own country, the Human Rights Committee considers whether the potentially infringing actions are in ‘accordance with the provisions, aims and objectives of the Covenant’.Footnote 147 If the conduct in question violates another provision of the Covenant, it will likely be found to be arbitrary.Footnote 148 Likewise, whether a killing amounts to an arbitrary deprivation of life in time of armed conflict is judged by reference to international humanitarian law.Footnote 149
This approach has also been adopted in understanding the international humanitarian law provision on relief operations. The prohibition on starvation of civilians as a method of warfare, a rule found in the Additional Protocols, is considered inextricably linked to the issue of humanitarian assistance. As the ICRC Commentary puts it:
The fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place. In fact, they are the only way of combating starvation when local resources have been exhausted. The authorities responsible for safeguarding the population in the whole of the territory of the State cannot refuse such relief without good grounds. Such a refusal would be equivalent to a violation of the rule prohibiting the use of starvation as a method of combat as the population would be left deliberately to die of hunger without any measures being taken.Footnote 150
Along similar lines, in the context of disasters, if withholding consent would violate fundamental human rightsFootnote 151—for example, the right to an adequate standard of living of persons affected by a disaster or the right to the highest attainable standard of health—the withholding would be arbitrary. Given that States' obligations in the area of economic, social, and cultural rights are ones of progressive realization, the threshold in question is, at the very least, the minimum core content of such rights. Consent cannot thus be withheld where this would result in a failure to satisfy the minimum core content of relevant, fundamental economic, social, and cultural rights.
One specific obligation of a State that needs to be borne in mind is that of non-discrimination. If a State withholds its consent for a valid reason, but does so in a discriminatory manner, such as with respect to a particular racial group, that withholding will amount to an arbitrary or unjustified withholding. Non-discrimination in this context applies with respect to the full range of grounds, including ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.Footnote 152 It will be uncommon for a State to withhold its consent explicitly on one such ground. Rather, withholding might take place with respect to a particular region of the affected territory, for example a region that is unsympathetic to the central government or that comprises predominantly a distinct ethnic group to that of the central government. This would nonetheless amount to an arbitrary withholding of consent.
D. Necessity and proportionality
A justified withholding of consent can be transformed into an arbitrary or unjustified one through the manner in which the legitimate aim is pursued. Only measures that are strictly needed to achieve the legitimate aim and which do not go beyond it can be taken. What is necessary and proportionate in the particular situation at hand will turn on the legitimate aim being pursued. There are temporal, geographical, and personal aspects to the issue. In temporal terms, the withholding of consent can only last for so long as is necessary. For example, if consent is withheld due to imperative security considerations, once these considerations no longer exist, consent will have to be provided. Likewise, if security considerations relate to a particular area of the affected territory, consent cannot be withheld in respect of other areas. If the withholding is due to the goods being offered not being of the type that are needed, once the required goods are offered, consent will have to be provided. Likewise, if consent is withheld due to the offer emanating from a questionable actor or an actor with questionable motives, it cannot be withheld to all actors including those with recognized standing. Measures that are not strictly necessary or that are disproportionate to the end being sought transform the valid withholding of consent into an arbitrary or unjustified one.
E. Entity Assessing the Justification
Once a justification has been provided, the final issue that needs to be addressed is identifying which actor determines the validity of the justification. As indicated above, the initial justification will be provided by the affected State. However, the affected State's justification has to be assessed by another actor; otherwise, the State would essentially be withholding its consent as it sees fit. The more difficult question relates to identifying the entity that is to undertake the assessment.
It would not be appropriate for each and every State, international organization, and non-governmental organization that offers assistance to test or challenge the affected State's justification. This would prove both improper and impractical. It would be improper as it is not the role of many of these actors to engage in such issues, nor may they have the necessary expertise to do so. Further, it invites political considerations in the making and interpreting of the assessments. It would be impractical as numerous, sometimes hundreds of, actors engage in humanitarian assistance and it would not be possible for each of them to challenge or agree with the affected State's opinion. Furthermore, there would have to be consistency in the reaction to the State's justification. It would be unworkable if one actor viewed the State's justification as valid whilst another viewed it as unjustified.
For these reasons, a single entity ought to assess the justification and the entity best placed to do so, it is suggested, is the UN Emergency Relief Coordinator (ERC).Footnote 153 The ‘Humanitarian Dashboard’, which ‘consolidates and presents’ needs assessments information, is already issued in the name of the ERC and the ERC ‘bear[s] the overall responsibility and ownership’ for it.Footnote 154 This, then, would take the approach one step further. It can already be seen in practice, in part, through briefings of the ERC on humanitarian assistance in the non-international armed conflict in Syria. For example, in March 2014, following a briefing to the Security Council, the ERC released a statement indicating that ‘[t]he continued withholding of consent to cross-border or cross-line relief operations, particularly of commodities privileged throughout the Geneva Conventions – like food, water, medical treatment and supplies, or shelter – is arbitrary and unjustified’.Footnote 155
The role of the ERC is particularly important in situations in which the State withholds its consent because it contends that it is able to meet the needs of the affected persons itself. This is where the needs assessment comes back into play. If the affected State conducted its own needs assessment, this should be shared with, and compared against, the UN's needs assessment.Footnote 156 If the affected State carried out a needs assessment jointly with the UN, the State's contentions would be compared against the joint assessment. Only in this way can the realistic nature and reliability of the State's needs assessment be tested. Just as importantly, it will provide support to the State that withholds consent to external humanitarian assistance on the (accurate) basis that it has the necessary resources. It will also reveal instances of underestimation of the scale of the situation as well as instances of bad faith. This also addresses the ‘evidentiary problems’ that are considered to arise ‘when determining a state's ability to provide assistance’.Footnote 157 Should a State be unwilling to carry out a needs assessment or to disclose its needs assessment, any withholding of consent will be presumed to be unjustified, subject to rebuttal.
When comparing needs assessments, a certain discretion must be left to the State. Thus, it is not the case that the needs assessments of the State and of the UN have to match exactly. The affected State will have a better sense of the precise needs of the affected persons as well as its capacities in logistics, goods and services.Footnote 158 Nonetheless, where the two assessments differ significantly—a standard that has to be judged on a case-by-case basis—a State should be obliged to consent to the provision of external assistance or demonstrate why the UN assessment is incorrect.
In internal UN practice, the role could be delegated to the relevant Resident or Humanitarian Co-ordinator as the highest-level UN official on the ground and thus closest to the situation at hand. Any decision would also take place following consultation with the heads of relevant UN agencies and other actors. However, in formal terms, the decision would be in the name of the ERC.
It may be that, in practice, for institutional or political reasons, the ERC is not the appropriate entity to assess the justification. An alternative would be the UN Inter-Agency Standing Committee (IASC) given that the IASC has the necessary expertise, made up, as it is, of the key organizations involved in the provision of humanitarian assistance. It is also the IASC that is tasked with coordinating relief operations, thus ensuring the requisite degree of consistency. However, made up as it is of different organizations, and reportedly somewhat cumbersome in its workings, it would be difficult in practice to reach a common conclusion. It has been suggested that the Security Council should decide on whether a refusal is arbitrary.Footnote 159 However, the Security Council does not have the necessary expertise in the matter and would necessarily consult with the ERC. Furthermore, to introduce the Security Council is to politicize the situation, or to politicize it to a greater degree. This is not to suggest that the Security Council does not have any role to play. The IASC may refer the matter to the Secretary-General who may, in turn, refer the situation to the Security Council. Likewise, a Member State of the Security Council may raise the issue. However, it is inappropriate for the Security Council to decide on the matter in the first instance. The more general point is that there needs to be a centralized assessment. Otherwise, each and every organization will assess the justification for themselves, which, in turn, leads to fragmented responses.
V. CONCLUSION
Different instruments seemingly take different approaches to the issue of whether a State that is affected by a disaster must consent to the provision of external humanitarian assistance. Some provide that external humanitarian assistance can be provided only with the consent of the affected State. Others provide for a presumption of consent. Still others refer to a prohibition on the arbitrary withholding of consent. Others yet require affected States to consent to the provision of external humanitarian assistance, either generally or in particular circumstances. Despite these seemingly different approaches, as discussed in Part III, they all converge towards a single standard, namely that consent on the part of a State affected by the disaster is required before external humanitarian assistance can be provided. However, the ability of the affected State to withhold its consent is not unlimited: States cannot withhold their consent arbitrarily.
The standard of arbitrary withholding of consent is increasingly accepted. Most recently, it has been set out in the ILC's Draft Articles on Protection of Persons in the Event of Disaster. Despite this increasing acceptance, there is little guidance on what is meant by an ‘arbitrary’ withholding of consent. Part IV therefore sought to deconstruct the notion and provide content to the concept. Although the word ‘arbitrary’ is used, it is used in the sense of ‘unjustified’. It follows, necessarily, that a reason must be provided in instances in which a State withholds its consent. Only in that way can the validity of the withholding be assessed. For reasons of practicality and appropriateness, the reason should be assessed by a central body and it has been suggested above that this should be the Emergency Relief Coordinator. Indeed, the ERC has taken on that role with respect to the withholding of consent to external humanitarian assistance in the non-international armed conflict in Syria. When assessing the validity of the reason provided, a number of elements have to be considered, namely the necessity of the withholding, the proportionality of the withholding, and compliance with the affected State's human rights obligations.
This understanding of the arbitrary withholding of consent standard applies also in other areas of disaster law. It applies to the withdrawal of consent on the part of the affected State and to States over whose territory the humanitarian assistance has to transit. The approach to understanding the standard, set out above, has the potential to apply also to the law regulating relief operations in situations of armed conflict, bearing in mind the differences between armed conflicts and disasters.
