Prohibition of Arbitrary Withholding of Consent

Vijitha Veerakatty

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Chapter 12 Prohibition of Arbitrary Withholding of Consent

in Arbitrary Withholding of Consent to Humanitarian Relief in Non-international Armed Conflict

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Vijitha Veerakatty

Vijitha Veerakatty
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Art:: Kapitel

Seiten:: 128–140

DOI:: https://doi.org/10.1163/9789004689343_014

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Dar Hadith al Hassania

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1 Legal Basis

1.1 Rule of Customary Law

Although the prohibition of arbitrary withholding of consent to relief is mentioned as a rule of customary law,¹ there is, however, not much said where the legal basis of this rule lies. An examination of this question reveals that the opinio iuris on the prohibition of arbitrary withholding of consent to relief can be derived from norms of the ap i and ii to the gcs.² Particularly the grammatical and effective interpretation of Article 70 (1) ap i and Article 18 (2) ap ii implies that the right to withhold consent is not entirely discretionary, but requires valid reasons (1.2). This understanding can also be approved from a historical perspective as a corresponding interpretation already existed during the negotiation process to the aps (1.3).³ Subsequent State practice and agreements have further hardened the conviction that consent cannot be arbitrarily withheld as a rule of customary international law (1.4).⁴

1.2 Grammatical and Effective Interpretation of aps

Article 70 (1) ap i and Article 18 (2) ap ii state for international and non-international armed conflicts that humanitarian relief actions “shall be undertaken subject to the consent” respectively “agreement” of the State concerned. While the term “subject to the consent” or “agreement”, as explained before, indicates that consent is required, but that States have a right to withhold this consent,⁵ the expression “shall be undertaken” stands for a strong determination to do something and indicates that humanitarian relief is compulsory and shall remain in general possible.⁶ This requires, in view of the principle of effectiveness, which stipulates that a treaty must be interpreted in such a way that it doesn’t leave any parts of the respective provision meaningless or redundant,⁷ that the right to withhold consent according to ap i and ii may not be interpreted as an unlimited right of the conflict party, as this would enable a general exclusion of humanitarian relief. An effective interpretation rather suggests to understand the relevant norms as that consent is required, but it may not be withheld on any possible grounds, but only on accepted valid ones. Such an understanding gives effect to both requirements of the norm, namely the requirement of consent and the requirement that humanitarian relief shall be undertaken.⁸

1.3 Historical Perspective

A prohibition of arbitrary withholding of consent is also reflected in the negotiation records of the aps. While in the draft versions of the Additional Protocols established an obligation to accept relief if it met certain requirements, such as impartiality and humanity, this was adjusted during the diplomatic conference of 1974–1977 in view of the sovereignty of the State accepting relief, and the requirement of consent was added, while clearly stating that this condition did not imply that the affected Parties had discretionary freedom to refuse relief actions.⁹ The Representative of Germany specified with regard to the formulation of the requirement of consent that: “those words did not imply that the Parties concerned had absolute and unlimited freedom to refuse their agreement to relief actions. A Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones.”¹⁰ This statement was not opposed by any of the other State parties. In contrast, USA, the Netherlands, the ussr and the UK even expressed their support.¹¹ And a leading commentator participating in the negotiations concluded that consent “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. However, there is no unfettered discretion to refuse agreement, and it may not be declined for arbitrary or capricious reasons.”¹²

1.4 Subsequent State Practice and Agreements

The implementation practice of the aps by the States, as well as various formulations of rules on humanitarian assistance, show that States also took the view, in their subsequent State practice and following agreements, that consent to relief operations could not be withheld arbitrarily.¹³ For example, the Guiding Principles on Internal Displacement state for situations of armed conflict:

International humanitarian organisations and other appropriate actors have the right to offer their services in support of the internally displaced. Such an offer shall not be regarded as an unfriendly act or an interference in a state’s internal affairs and shall be considered in good faith. Consent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance.¹⁴

Similar formulations are also found in the Resolution on Humanitarian Assistance of the Institute of International Law¹⁵ and in the Council of Europe Recommendation (2006)6 on Internally Displaced Persons¹⁶ And even for circumstances beyond armed conflict, the International Law Commissions (ilc) confirmed this principle in its Draft Articles on the protection of persons in the event of disasters.¹⁷ The State’s opinion that arbitrary denial of access is prohibited is further confirmed in several resolutions and decisions of UN bodies.¹⁸ For example, in 1998, the UN Secretary-General stated that “[h]umanitarian access is, inter alia, a right of refugees, displaced persons and other civilians in conflict situations and should not be seen as a concession to be granted to humanitarian organisations on an arbitrary basis.”¹⁹ Any refusal must be based on valid and lawful grounds.²⁰

Moreover, UN entities have recalled this view various times in their resolutions, like for example the Security Council in its landmark Resolution 2165 (2014) on Syria (which will be discussed in detail later):

noting the United Nations Secretary-General’s view that arbitrarily withholding of consent for the opening of all relevant border crossings is a violation of international humanitarian law.²¹

2 Assessing Arbitrariness

What amounts to arbitrariness with regard to the withholding of consent to relief operations has to date not been defined by any international body.²² The notion of arbitrariness is in general interpreted broadly in international law, and there is not an all-encompassing definition which is applicable to all kinds of situations.²³ Whether the withholding of consent to relief action leads to arbitrariness has therefore to be determined on a case-by-case basis.²⁴

In this respect, it is to be recalled that the issue of consent only arises where the preconditions for providing relief, as mentioned before, are met. If this is not the case, the concerned conflict party can refuse relief actions validly by simply referring to the unmet conditions without further justification.²⁵ According to the view of the author of this book, at this stage it would be more correct to call the response of the conflict party a valid refusal of the offered relief actions, rather than a withholding of consent, which is often confused in the doctrine and practice.²⁶ A proper distinction of situations of simple refusal is important (2.1). Only when the conditions for the provision of relief are met can the party to the conflict consider giving consent but have the right to withhold it for valid reasons. Therefore, it is only in instances of withholding of consent that the grounds need to be examined to determine whether they are arbitrary or not. Although there is no general definition of arbitrariness and each case must be examined on its own terms, there are nevertheless some standards in doctrine and practice which can be used as guidelines for assessing arbitrary withholding of consent (2.2).

2.1 Distinction from a Valid Refusal

Refusing relief because the concerned conflict party believes that the conditions for providing relief are not given is, in practice, the main reason why relief is rejected.²⁷ This is for example the case when the affected party declares that there is no humanitarian crisis or that it is able and willing to provide the required humanitarian relief itself.²⁸ Another frequent situation in which relief is refused on the basis of unmet preconditions is when relief actions are not matched to what it is actually needed. For example, if food is being offered while medicine is in short supply.²⁹ Or similarly, when the required assistance is already sufficiently accepted and therefore equivalent relief from other humanitarian actors is declined. In practice, the affected State may receive offers from hundreds of relief organisations.³⁰ But, as mentioned before, humanitarian actors have no individual right to claim the provision of assistance. Hence, the conflict party concerned will decide the type of assistance which is required, taking into consideration all assistance measures offered.³¹ In this respect, it seems acceptable if, in practice, relief is not accepted from humanitarian actors with whom the concerned conflict party does not have a friendly relationship, as long as the required assistance is already sufficiently covered by the conflict party itself or granted by other relief agencies.³² Finally, the concerned conflict party may also refuse humanitarian actors based on the grounds that they are not acting in accordance with the humanitarian principles or if there are at least reasonable doubts surrounding the particular organisation that it might not be able to do so, for example if it does not have a good track record.³³ However, it has to be noted that in all the situations mentioned above, for a valid refusal it has to be determined if the objections of the concerned party correspond to reality or if they are rather unlikely or only a facade. If the latter is the case, there is a case of withholding of consent which has to be considered as arbitrary if there are no further reasons to justify the withholding. However, it is difficult in practice to determine if the objections of unmet conditions for providing relief are actually given.

It is further argued in the doctrine whether the conflict parties have a narrower margin of discretion in refusing relief operations based on unfulfilled conditions, once they have accepted them, than in refusing them in the first place. It is alleged that refusing relief because of unmet conditions at a later stage requires the concerned parties to become active themselves, to revise existing relief actions in the light of new situations and to cancel them if the conditions are no longer met, for example because the humanitarian actor in question is providing relief for which there is no longer a need or is operating lately in an unprincipled manner, whereas initially the initiative lies on the side of the humanitarian actor and the concerned party can easily refuse if it considers that the conditions are not met.³⁴ However, this line of argument is not fully convincing. The conditions for providing relief actions are the same in both situations, so the side of the initiative does not affect the discretion of the decision to refuse relief as such. But indeed, the requirement of self-initiative on the part of the concerned party is an additional obstacle to effectively taking the decision to refuse relief. Consequently, situations in which consent were refused after once they have been accepted have proven to be less common in practice than when it has been refused after the initial offer. Thus, in the majority of the cases, the concerned parties remain bound to the relief operations they have agreed to.³⁵

2.2 Situations of Arbitrary Withholding of Consent

There are different attempts in the doctrine to give examples of arbitrary withholding of consent in situations of humanitarian emergency. All of them have in common that the term “arbitrary” is used in the sense of an unreasonable or unjustified ground. This can also be seen in the debates on the provision of humanitarian assistance in the context of Syria, for example, where the notions of “arbitrary” and “unjustified” have been used as interchangeable terms.³⁶ Thus, an arbitrary ground for withholding of consent is determined on the basis of whether the denial of the consent can be justified or not.³⁷ An arbitrary withholding of consent is therefore given when there is no legitimate aim pursued by the withholding (2.2.1).

But even if withholding is based on a valid reason, it may still be arbitrary, depending on the given circumstances or the further intentions or actions of the concerned conflict party. In this regard, reference can be made to the Oxford Guidance, which, based on ihl, ihrl and the general principles of public international law, identifies three categories in which the withholding of consent to humanitarian relief operations may be considered as arbitrary,³⁸ namely when it constitutes a violation of another obligation under international law with respect to the affected civilian population (2.2.2), or when it is withheld in a manner that violates the principles of necessity and proportionality (2.2.3), or when it is unreasonable, leading to injustice, lack of predictability or is in another way inappropriate (2.2.4).³⁹ The Oxford Guidance describes these categories as separate classifications. But a closer look shows that not all situations of arbitrary withholding can be placed exclusively in one category. For example, a breach of an international obligation can also be a violation of the principles of necessity and proportionality.⁴⁰ On the other hand, where no international obligation is breached, the withholding of consent may be still arbitrary if it is not respecting the principle of necessity and proportionality. Furthermore, the category of withholding of consent in a manner that is unreasonable, injust, unpredictable or otherwise inappropriate includes, for example, the withholding of consent without giving any reason,⁴¹ which is also considered by some views in the doctrine as a breach of the international obligations of the concerned conflict party. Thus, the different categories outlined in the Oxford Guidance, together with the requirement of a legitimate aim, have to be understood rather as non-exclusive and interrelated criteria for assessing different forms of arbitrary withholding.

2.2.1 No Legitimate Aim

It is generally agreed that grounds such as the State sovereignty, internal legal order, national pride and interests, political orientation and the interests of the regime in power do not prevail when civilians are in distress.⁴² Similarly, reasons such as that the local population is seen as supporting the opposing party are not acceptable as grounds for withholding consent.⁴³

A legitimate aim for withholding of consent in situations of armed conflict is primarily a military necessity, such as ongoing military fighting in a particular area which may endanger the safety of humanitarian actors.⁴⁴ “Imperative military necessity” is explicitly mentioned in ap i as a legitimate reason for limiting relief actions and restricting the movement of humanitarian relief which has already been consented to.⁴⁵ However, it is also accepted as a legitimate aim for withholding the initial consent to relief actions. Besides, there may be other safety reasons of a non-military nature, such as an ongoing major police operation, which may prevent the concerned party from giving its consent.⁴⁶

2.2.2 Violation of Other Obligations of the Concerned Conflict Party with Respect to the Civilian Population

Withholding of consent to relief operations is also regarded as arbitrary if the withholding results in a violation of obligations of the concerned conflict party under international law with respect to the civilian population. This understanding follows from the principle of systematic integration which is codified in Article 31(3)(c) of the vclt⁴⁷, and which provides that an international treaty norm shall be interpreted in the context of “any relevant rules of international law applicable in the relations between the parties.” Although Article 31(3)(c) of the Vienna Convention refers to the interpretation of treaty norms, the principle of systematic integration is acknowledged as a rule of customary international law⁴⁸ which can be applied beyond treaties and which can cover both the interpretation of written and unwritten sources.⁴⁹ The content of the principle can therefore be formulated more generally as that the interpretation of an international obligation requires that account be taken of other legal provisions which have to be respected by the concerned party in the same subject matter under international law.⁵⁰ Thus, in order to interpret the content of the obligation to provide relief and not to withhold consent to relief operations arbitrarily, it is also required to take into account the obligations (outside the context of relief operations) of the conflict parties which have to be respected by them in situations of humanitarian crisis with regard to the civilian population. Consequently, where withholding of consent leads to breaches of these other obligations of the conflict parties, withholding of consent will be found to be arbitrary.⁵¹

There are various circumstances in which the withholding of consent to relief operations may violate the international obligations of the conflict parties with respect to the civilian population during armed conflict. With regard to their scope, these circumstances and the relevant breaches of law will be outlined and discussed in detail later.⁵²

2.2.3 Violation of the Principle of Necessity and Proportionality

The practice of international tribunals and other international bodies shows that for determining whether a measure is arbitrary, it is generally questioned if a measure is necessary and proportionate to the objective sought to be achieved. Thus, even if consent to relief operations is withheld for a reason which appears to be valid in the instance, and which has no intention or impact that could lead to a breach of international law, it must nonetheless be concluded to be arbitrary if it exceeds what is necessary and proportionate in the particular case. For example, an initially legitimate objective, such as ongoing hostilities and security reasons, may become arbitrary once humanitarian emergencies last for such a long time that the needs of the affected civilian population become severe. In this case, the needs of the civilian population prevail the security considerations.⁵³

The principle of necessity and proportionality is explicitly mentioned in ap i in the context of of limiting and restricting humanitarian relief by requiring that humanitarian activities may be limited and the movement of relief personnel temporarily restricted if there is a military necessity that is imperative. Thus, even if there is a military necessity, limitations and restrictions on relief operations have to be essential and unavoidable to ensure the security of the relief operations.⁵⁴ By mentioning that the movement of the relief personnel may be temporarily limited, the temporal aspect of the principle of proportionality is emphasised and requires that any imposition and prolongation of the limitation must be strictly necessary.⁵⁵

And ihrl also allows derogations and limitations to human rights, subject to the principles of necessity and proportionality.⁵⁶ The iccpr, for example, recognises that in time of public emergency, including armed conflict, “which threatens the life of the nation and the existence of which is officially proclaimed”, States Parties may take measures derogating from their obligations under the Covenant.⁵⁷ Similar provisions on derogation can also be found in regional human rights conventions.⁵⁸ The icescr, on the other hand, accepts the possibility of limitations to the rights protected by the Covenant, as they are defined by law and “only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”⁵⁹ According to international jurisprudence and practice, restrictions on human rights must, in accordance with the principle of proportionality, limit to the maximum extent possible their impact on the enjoyment of other rights. The icj, for example, has noted in this regard that restrictions on human rights must, in accordance with the principle of proportionality, be “the least intrusive instrument amongst those which might achieve the desired result.”⁶⁰

Accordingly, the withholding of consent to relief operations may not go beyond what is strictly necessary to achieve the legitimate aim in terms of time, duration, location and goods and services involved. Exceeding these requirements leads to arbitrary withholding of consent.⁶¹

2.2.4 In Other Way Inappropriate under International Law

Consent is also considered as arbitrarily withheld if it is done in a manner that is unreasonable or may lead to injustice or lack of predictability, or if it otherwise appears inappropriate.⁶² This category constitutes an open-ended list, particularly for situations where the withholding of consent seems to be inconsistent with internationally accepted standards, but may not fit into the other categories of arbitrary withholding of consent.

For example, when consent is withheld without providing any reasons,⁶³ it leads to a lack of predictability. The communication of the grounds for withholding consent is required to know whether the concerned party is acting in compliance with its obligations relating to humanitarian relief operations. If this requirement is not fulfilled, it is impossible to assess whether the reasons underlying the withholding are valid or not.⁶⁴ The ilc has noted in relation to assistance during natural disasters that “(t) the provision of reasons is fundamental to establishing the good faith of the affected State’s decision to withhold consent. The absence of reasons may support the conclusion that the withholding of consent is arbitrary.”⁶⁵ And the icj noted that the explanation of the withholding also provides the requested party with the possibility to substantiate its good faith in refusing the request.⁶⁶ In view of the importance of providing reasons for withholding consent, there are some voices in the doctrine which even claim that it is an international obligation of the concerned party. However, according to the view of the author of this book, the provision of a reason for withholding consent is not a new obligation, but a consequence of the right to withhold consent and the obligation not to withhold for arbitrary reasons.⁶⁷ Thus, it is indeed required that the reason is provided in a timely manner so that it can be assessed whether concerned party is acting in accordance with its rights and duties.⁶⁸ But if it is not done, it can be presumed that the withholding of consent may be unjustified and arbitrary. The presumption is rebuttable, however, if the facts on the ground indicate that there are valid reasons for withholding the consent.⁶⁹

See on the overall topic Akande/Gillard, p. 489 ff.

Art. 31–33 of the vclt contain rules governing the interpretation of international treaties, which reflect also international customary law. Beside the general interpretation principles, there is also an interpretation in good faith and the subsequent practice of the member States in implementing the treaty is of particular importance. Furthermore, systematic interpretation is understood in a broader sense and includes also other treaties between the member States on similar or related topics. Historical interpretation, based on negotiation protocols or other preparatory work, has only a subsidiary meaning to confirm the conclusion resulting from the application of the other principles of interpretation. But it may have an independent importance if the result of the interpretation according to the other principles is not reasonable; in detail see Kälin/Epiney/Caroni/Künzli, p. 29 ff.

Akande/Gillard, Oxford Guidance, para. 44.

Akande/Gillard, Oxford Guidance, para. 44; icrc Customary Law Study, Rule 55.

See Chapter 6 2.3.

Oxford Dictionary, Definition of shall, available at https://en.oxforddictionaries.com/ definition/shall (last visited 31 August 2023).

On the overall topic, see Akande/Gillard, Oxford Guidance, p. 489 f.

Slightly different: Akande/Gillard, Oxford Guidance, p. 489 f.; see also icrc, International Humanitarian Law, p. 25; And also the principle of good faith requires a balance between treaty elements so that that the exercise of a right is not extensive and abusive, see on this Akande/Gillard, Oxford Guidance, p. 490; Kälin/Epiney/Caroni/Künzli, p. 33.

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974–1977, cddh/i/sr.87, p. 27–30; see also icrc, Commentary on the aps, para. 2805.

Position of Germany, see cddh/ii/sr.87, p. 336 f.; No opposition from any State. Similar comments also in regard to the requirement of consent in Art. 18 ap ii by Belgium and Germany, see cddh/ii/sr.53, p. 156 f.; see Akande/Gillard, Oxford Guidance, p. 21; icrc, Commentary on the aps, paras 2805 and 4885.

Support of USA, the Netherlands, the ussr and the UK, see cddh/ii/sr.87, p. 27.

Akande/Gillard, Arbitrary Withholding, p. 490 f. with further references.

Akande/Gillard, Arbitrary Withholding, p. 489.

Principle 25(2) of the Guiding Principles on Internal Displacement, UN Doc e/cn.4/1998/53/Add.2, 11 February 1998.

Institute of International Law, Burges Session 2003, Resolution on Humanitarian Assistance, 2 September 2003, Article viii (“duty of affected States not to arbitrarily reject bona fide offers of humanitarian assistance”).

Council of Europe Recommendation (2006)6 of the Committee of Misters to Member States on Internally Displaced Persons, 5 April 2006, para 4; See on the overall topic University of Oxford, Background Paper, p. 3.

Article 14 of the ilc Draft Articles on the protection of persons in the event of disasters, supra, dealing with the ‘Consent of the affected state to external assistance’; see International Law Commission, Report of its sixty-third session, p. 267; see Akande/Gillard, Oxford Guidance, p.22.

Akande/Gillard, Oxford Guidance, p. 22 with further references.

UN Secretary-General, Report on protection for humanitarian assistance to refugees and others in conflict situations, para. 15.

sfdfa, Normative Framework, p. 25 f.

UN sc Resolution, 2165 (2014), para 24.

Gillard, Cross-Border Relief Operations, p. 21.

Also, the ilc Draft Articles on the Protection of Persons in the Event of Disasters and the commentary thereto do not clarify the notion of arbitrary withholding of consent to humanitarian assistance, see Sivakumaran, Arbitrary Withholding of Consent, p. 516.

sfdfa, Normative Framework, p. 25; University of Oxford, Background Paper, pp. 4 and 7.

Van den Herik/Jägers/Werner, cavv Advisory Report, p. 19; sfdfa, Normative Framework, p. 25; Gillard, Cross-Border Operations, p. 26; Akande/Gillard, Oxford Guidance, p. 21.

For example, confused in the article of Sivakumaran, Arbitrary Withholding of Consent, p. 521 ff.

Sivakumaran, Arbitrary Withholding of Conset, p. 521.

According to the practice in diasater relief, this is the principal reason for withholding consent, Sivakumaran, Arbitrary Withholding of Consent, 521 f. with examples of the practice.

Apparently, it is not unusual in practice for massive amounts of unneeded and unsuitable aid to be brought in, see on this Sivakumaran, Arbitrary Withholding of Consent, p. 523 f.

Sivakumaran, Arbitrary Withholding of Consent. See also Gillard, Corss-Border Relief Operations, p. 24.

Duty to indicate of the affected State, explicitly mentioned in conventions for disaster relief, on this topic see Sivakumaran, Arbitrary Withholding of Consent, p. 524; that the determination if there are unmet needs of the cilviians requires that the possible assistance of all humanitarian actors has to be considered and not only the specific one whose operation is impeded, see Gillard, Cross-Border Relief Operations, p. 26.

Similar situations in disaster relief with practical examples, see Sivakumaran, Arbitrary Withholding of Consent, p. 524 f.

Sivakumaran, Arbitrary Withholding of Consent, p. 524; Gillard, Corss-Border Relief Operations, p. 24.

Gillard, Cross-Border Relief Operations; on the overall topic, see Van den Herik/Jägers/Werner, cavv Advisory Report, p. 19 and fn. 32.

Van den Herik/Jägers/Werner, cavv Advisory Report, p. 19 and fn. 32.

For example, in UN sc Ressolution 2165 (2014); see on this Sivakumaran, Arbitrary Withholding of Consent, p. 517.

Effectively, or at least when there are justified doubts surrounding the fact that they are not acting in accordance with the prinicples, Sivakumaran, Arbitrary Withholding of Consent, p. 517.

Akande/Gillard, Oxford Guidance, p. 22.

While certain ihrl obligations are absolute and are considered as violated by their limitation, other obligations allow a limitation, if they are in accordance with the principles of necessity and proportionality; instead of many, see Sivakumaran, Arbitrary Withholding of Consent, p. 524.

Akande/Gillard, Oxford Guidance, p. 25.

See Sivakumaran, Arbitrary Withholding of Consent, p. 524; sfda, Normative Framework, p. 26 fn. 49.

See Sivakumaran, Arbitrary Withholding of Consent, p. 502.

See Sivakumaran, Arbitrary Withholding of Consent, p. 525.

Article 71 (3) ap i; By requiring that military necessity has to be imperative, ihl recalls that even the pursuit of a legitime aim must be in accordance with the principle of necessity, icrc Commentary on aps, para. 2896.

Sivakumaran, Arbitrary Withholding of Consent, p. 525.

Akande/Gillard, Oxford Guidance, p. 23, in reference to the Article 30(3)(c) vclt, formulated from a State’s view, but also applicable to parties bound by a treaty norm.

Art. 31 has been repeatedly recognised as customary international law in international jurisprudence, see on this outlining in Merkouris, p. 2 ff.

Merkouris, p. 195 ff. On this principle, see also the icj, Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, para 25, where the icj interpreted the expression “arbitrary” by reference to other applicable obligations under international law. Moreover, the Human Rights Committee has stated that the concept of arbitrary conduct includes unlawful conduct but is broader, see on this hrc General Comment No. 35: Liberty and Security of Person (Art. 9), paras. 11 and 12. See also UN Secretary-General, Report on Human Rights and Arbitrary Deprivation of Nationality, UN doc a/hrc/13/34, 14 Dec 2009, para 25. See also, icrc Commentary to gc i, paras 835–937.

See Merkouris on Article 31(3)(c) of the vclt and the Principle of Systematic Integration, p. 15.

Equal result, but withthout explanation: Akande/Gillard, Oxford Guidance, p. 23.

See Chapter 13.

Sivakumaran, Arbitrary Withhodling of Consent, p. 502.

Explicitly stated in Article 71 (3) ap i, see hereto ochr, p. 52; see also Gillard, Cross-Border Operations, p. 26.

Exceeding these requirements for limitation and restriction of consented relief actions constitutes an arbitrary withdrawal of consent. Where military necessity is invoked as a reason for withholding initial consent, these provisions can be correspondingly applied to determine whether the withholding is arbitrary or not.

Instead of many, ochr, p. 49.

Article 4(1) iccpr. It should be noted here that the state of emergency includes situations of armed conflict, but the existence of an armed conflict does not in itself constitue an emergency, but rather a threat, on the overall topic, see ochr, p. 47.

For example, in Article 14 echr.

Article 4 icescr.

ochr, p. 51.

Akande/Gillard, Oxford Guidance, p. 24 with further references.

Akande/Gillard, Oxford Guidance, p. 25 referring on hrc General Comment No. 35: Liberty and Security of Person (Art. 9), para. 12.

Akande/Gillard, Oxford Guidance, p. 25.

Gillard, Cross-Border Relief Operations, p. 24; But also in the Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, UN Doc a/65/282, 1 August 2010, para 82; With regard to disaster event, see Sivakumaran, Arbitrary Withholding of Consent, p. 519 ff.

ilc Commentary to Article 11 of the draft articles on the protection of persons in the event of disasters, para 8.

icj, Djiboui v France, para 152; on the overall topic, see Sivakumara, Arbitrary Withholding of Consent, p. 520.

Sivakumaran, Arbitrary Withholding of Consent, p. 520.

Timeliness is also stressed, for example, in the Framwork on Convention on Civli Defence Assistance, which states that “(o)ffers of, or requests for assistance shall be examined and responded to by recipient States within the shortest possible time,” Article 3(e), hereto Sivakumaran, Arbitrary Withholding of Consent, p. 521.

For situations of disaster relief, Sivakumaran, Arbitrary Withholding of Consent, p. 521.

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Arbitrary Withholding of Consent to Humanitarian Relief in Non-international Armed Conflict

Legal Regulations and Consequences

Reihe: International Humanitarian Law Series, Band: 69

Cover Arbitrary Withholding of Consent to Humanitarian Relief in Non-international Armed Conflict

ISBN:: 9789004689343

Verleger:: Brill | Nijhoff

Print-Publikationsdatum:: 02 Aug 2024

Fachgebiete
- Menschenrechte und Humanitäres Recht
- Internationales Recht
  - Völkerrecht
  - Konfliktrecht & Sicherheitsrecht

Front Matter

Part 1 International Humanitarian Relief in Non-international Armed Conflicts

Part 2 Rights and Duties of the Actors Involved in Relief Actions

Part 3 Arbitrary Withholding of Consent to Relief Operations

Part 4 Legal Consequences of Arbitrary Withholding of Consent

Part 5 Legal Gaps and Required Developments

Back Matter

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Chapter 12 Prohibition of Arbitrary Withholding of Consent

1 Legal Basis

1.1 Rule of Customary Law

1.2 Grammatical and Effective Interpretation of aps

1.3 Historical Perspective

1.4 Subsequent State Practice and Agreements

2 Assessing Arbitrariness

2.1 Distinction from a Valid Refusal

2.2 Situations of Arbitrary Withholding of Consent

2.2.1 No Legitimate Aim

2.2.2 Violation of Other Obligations of the Concerned Conflict Party with Respect to the Civilian Population

2.2.3 Violation of the Principle of Necessity and Proportionality

2.2.4 In Other Way Inappropriate under International Law

Zitierungsangaben

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Arbitrary Withholding of Consent to Humanitarian Relief in Non-international Armed Conflict

Legal Regulations and Consequences

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