You may have seen the January 2015 WHO Executive Board resolution on Ebola, which calls for many important things, including a global health reserve workforce, a contingency fund, and human resource management reform. All could help develop a smarter global health system.
But did you see this paragraph on humanitarian assistance, which points decidedly in the wrong direction?
Emphasizing also the fundamentally civilian character of humanitarian assistance, and reaffirming, in situations in which military capacity and assets are used as a last resort to support the implementation of humanitarian assistance, the need for the use to be undertaken with the consent of affected States and in conformity with relevant provisions of international law,
Fortunately, this is in the preamble, and in the present context, has no impact. The countries affected by Ebola welcomed international support, including military capabilities; “consent of affected states” was not at issue. Yet this is a misleading statement as a matter of law that I believe ought not pass silently. It is a reminder of the struggle to ensure global priority of human rights over assertions of sovereignty, of the need of constant vigilance to ensure that old, destructive norms do not re-emerge.
In general, humanitarian assistance should be provided with the consent of affected states. In most cases, states do consent, soliciting and welcoming support. Yet sometimes, particularly when the state is not a victim of a humanitarian crisis – due to a natural disaster or disease outbreak – but the cause of it, the state blocks efforts to provide humanitarian assistance. Think Sudan and Darfur, or Syria.
When the state obstructs humanitarian assistance, it is violating people’s human rights, among them the right to the highest attainable standard of physical and mental health. States obligations include respecting this right, that is, not affirmatively undermining it. Yet when a state interferes with humanitarian assistance, that is precisely what it is doing.
In such cases, states violate their international legal obligations. As UN Secretary-General Kofi Annan famously stated more than a decade-and-a-half ago: “No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples.”
The international community has a responsibility to provide humanitarian support even in the face of resistance. At the 2005 UN World Summit, states agreed “to take collective action, in a timely and decisive manner…should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” Humanitarian assistance is a central component of protecting the population, so that those displaced or otherwise affected by the violence can survive. Otherwise, they too will become causalities of these crimes.
The World Summit, I believe, articulated an obligation that had already existed, most obviously in cases of genocide through the Genocide Convention, but beyond. It exists through articles 55-56 of the UN Charter, with their obligation for states to cooperate in advancing universal observance of human rights (which cannot happen if a state blocks humanitarian assistance) and the obligation of international cooperation and international assistance in the International Covenant on Economic, Social and Cultural Rights (article 2).
Sadly, state interests – or should I clarify, interests of governments concerned about their own power – may stop them from living up to this commitment. Still, at least once, just last year, the United Nations Security Council put the Responsibility to Protect into effect in the context of humanitarian assistance. In July 2014, the Security Council passed Resolution 2165 (with its message restated in a December resolution) on the Syrian war. It asserted humanitarian pathways into Syria, regardless of state consent:
The resolution required simply notifying the Syrian government, not its consent. And the Syrian government was obliged to comply. The resolution continued:
The Security Council has done tragically little to back up its decision following Syrian government interference. Yet as a matter of law, the July 2014 resolution stands as a clear counterpoint to the WHO Executive Board’s assertion of the necessity of consent of the affected states.
Where did the WHO Executive Board statement come from? The statement cited to two resolutions. One, a 2005 UN General Assembly resolution that addresses deploying military assets in support of humanitarian assistance, seems to contradiction the Executive Board’s assertion, if one views its silence on state consent as significant. The most relevant paragraph of UN General Assembly Resolution 60/124 reads:
State consent is nowhere to be found here.
UN General Assembly Resolution 69/135, a 2014 resolution that the WHO Executive Board also cited, does include state consent, and reads much like the WHO Executive Board resolution:
Emphasizing also the fundamentally civilian character of humanitarian assistance, and reaffirming, in situations in which military capacity and assets are used as a last resort to support the implementation of humanitarian assistance, the need for their use to be undertaken with the consent of the affected State and in conformity with international law, including international humanitarian law, as well as humanitarian principles,
As a matter of law, a General Assembly resolution (much less part of its preamble) is not legally binding (true too of a WHO Executive Board or World Health Assembly resolution), unlike a Security Council resolution or, most significantly, the obligations created by the treaties and customary law that underlie humanitarian and human rights law.
Still, it is worth asking how did the issue of state consent creep into the 2014 General Assembly and the 2015 WHO Executive Board resolutions, even as this is at odds with human rights law and the responsibility to protect, and the Security Council resolution passed only months earlier? I suppose the answer rests with the same nefarious forces that continue to believe that their own power and the sanctity of state consent can override human rights and humanitarian principles and law. Too often, in practice, they are right. It is our challenge to support putting human rights principles into practice – and support those who so heroically risk their well-being and even lives to champion these rights – so that some day, human rights obligations and not power politics will rule the day.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.