On 10 July, the U.N. Security Council’s resolution authorizing cross-border humanitarian aid to northwest Syria is set to expire. In the lead up to the expiry, all eyes are on Russia, and whether it will exercise its right of veto in the Council to block a renewal.

Russia maintains that, in deference to Syria’s sovereignty, all humanitarian assistance should be provided across conflict lines from Damascus, in cooperation with the Syrian authorities. But humanitarian actors say this is impossible; indeed, despite months of negotiations, the Syrian government is yet to allow one single aid convoy to access northwest Syria from Damascus. Accordingly, lobbying directed at the Security Council is ramping up. Last week seven heads of U.N. agencies issued a joint statement warning that a failure by the Security Council to reauthorize cross-border assistance would “immediately stop U.N. delivery of … lifesaving assistance to 3.4 million people, including one million children.” A statement issued earlier this month by 41 NGOs warned similarly that “a failure to renew would put access to food assistance for more than one million people at stake, as well as COVID-19 vaccinations, critical medical supplies and humanitarian assistance for many more.”

Amid this focus on Russia and the Security Council, there is a critical question not getting the attention it deserves. Why is it the Security Council that gets to decide whether more than three million people in northwest Syria get the lifesaving humanitarian assistance – food, water, healthcare, shelter – they so desperately need?

Whose Mandate?

The U.N. Security Council is responsible for international peace and security. Under the U.N. Charter, the General Assembly is charged with making recommendations for the purpose of “promoting international cooperation in the economic, social, cultural, educational and health fields, and assisting in the realisation of human rights.” In 2004, the International Court of Justice (ICJ) observed that when the Security Council and General Assembly deal in parallel with the same matters, the Security Council has “tended to focus on the aspects of such matters related to international peace and security,” while “the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects” (emphasis added).

Acting on its responsibility for such matters, in 1992 the General Assembly passed Resolution 46/182 on the strengthening of the coordination of humanitarian emergency assistance of the United Nations. In that resolution the Assembly established the position of the Emergency Relief Coordinator (ERC), to serve as the senior U.N. official responsible for humanitarian affairs, and the Inter-Agency Standing Committee (IASC). In 1994 the General Assembly adopted another resolution on humanitarian assistance, this time emphasizing the “leadership role of the Secretary-General, through the Emergency Relief Coordinator,” and stressing that the IASC, “under the leadership of the Emergency Relief Coordinator, should serve as the primary mechanism for inter-agency coordination” of humanitarian assistance. That resolution said that the IASC should act “in an action-oriented manner on policy issues related to humanitarian assistance and on formulating a coherent and timely United Nations response to humanitarian emergencies.”

In light of this allocation of responsibility within the U.N. system, why has the conversation around the delivery of humanitarian assistance in Syria focused so exclusively on the Security Council – with its mandate not for humanitarian assistance but for peace and security?

The attention on the Security Council dates back to 2014, when the Council passed Resolution 2165 authorizing the U.N. and its partners to provide humanitarian assistance in Syria via designated international border crossings. Given the difficulties that humanitarian organizations had been having obtaining permission from the Syrian government to provide assistance in opposition-held areas across conflict lines from Damascus, the resolution was a breakthrough. It provided the political and – as has been understood – legal basis for the U.N. to support the provision of humanitarian assistance to more than four million people across both northwest and northeast Syria.

But Resolution 2165 also had a not-so-positive effect, from a humanitarian perspective. It enshrined an assumption that Security Council authorization was necessary in order for the U.N. to provide humanitarian assistance in non-government-controlled areas; and the corollary of that assumption, that assistance provided without such authorization was illegal.

The Legality of Humanitarian Aid without Host State Consent

Those assumptions regarding the imperative for Security Council authorization are not, in fact, settled in international law. There is no rule of international law that says, unequivocally, that it is illegal for U.N. humanitarian agencies to cross an international border into part of a country over which the national government does not have territorial control, in order to provide impartial humanitarian assistance in full cooperation with local authorities and local communities.

Indeed, under customary international humanitarian law, as interpreted by the International Committee of the Red Cross, parties to conflicts “must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, … subject to their right of control” (emphasis added). It is generally agreed (see here and here) that “subject to their right of control” means that consent from the host state (i.e., the Syrian government) is required in order for humanitarian assistance to be provided, but that consent must not be “arbitrarily withheld.” Consent is withheld “arbitrarily” if it is withheld without a valid reason (see here and here). The U.N. General Assembly, Security Council and ERC have all, over the years, implicitly or explicitly suggested that the Syrian government’s withholding of consent to humanitarian assistance in non-government controlled parts of Syria is arbitrary. What international humanitarian law does not explicitly say is that if consent is arbitrarily (illegally) withheld, humanitarian assistance provided without that consent is illegal.

Humanitarian assistance provided without host State consent is commonly described as a violation of the well-established principle of international law that States and international organizations must not violate another State’s territorial integrity. But there’s an argument to be made that principled humanitarian assistance provided in non-government-controlled areas does not in fact constitute a prohibited violation of territorial integrity (see discussion here). Indeed, in 1986 the ICJ held that “There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, … cannot be regarded as unlawful intervention, or as in any other way contrary to international law.”

Even if one does take the view that impartial humanitarian assistance provided in non-government-controlled areas with the consent of local authorities is prima facie unlawful, such assistance may be justified on grounds of necessity. In international law, necessity is one of six circumstances that may “preclude the wrongfulness” of an act by an international organization that would otherwise be “not in conformity with an international legal obligation” (see here). To make out a plea of necessity, it must be shown that the conduct in question – i.e., violating territorial integrity – is the only way to safeguard an essential interest against a “grave and imminent peril.” The “essential interest” can be an interest of the international community, such as ensuring the provision of lifesaving humanitarian assistance in situations of severe humanitarian need (see here, here and here).

The Role of the Humanitarian Parts of the U.N.

All this being the case, and bearing in mind the mandate of the ERC to “coordinat[e] and facilitat[e] the humanitarian assistance of the United Nations system to … emergencies that require a coordinated response,” one might imagine the ERC would be seeking a legal opinion that would allow U.N. humanitarian agencies and their partners to provide humanitarian assistance in opposition-held northern Syria where it is so desperately required. The argument that Security Council authorization is not required has been advanced before, including in 2014 in an open letter from leading international legal experts, and in scholarship. But such opinion is seemingly not being sought.

What seems to be the case, according to conversations with NGO and U.N staff, is that the humanitarian parts of the U.N. – the ERC, the U.N. Office for the Coordination of Humanitarian Affairs and at least some of the various operational U.N. agencies – have settled for an opinion provided by the U.N. Office of Legal Affairs (OLA), which says that the U.N. cannot legally provide assistance in opposition-held areas without Syrian government consent. Despite the reliance on it, the OLA opinion has not been made available for scrutiny to the Syrians who rely on U.N.-supported cross-border assistance, nor to the NGOs who rely on U.N. support, nor even – seemingly – widely within the U.N. system. One U.N. staff member, speaking confidentially, said “I’m not sure there is an actual ‘legal opinion’, as such.”

One is left with the impression that perhaps the humanitarian parts of the U.N. do not want a legal opinion holding that they can provide humanitarian assistance without either Syrian government consent or Security Council authorization, because they might be expected to act on it. Such action might then jeopardize their relations with the Syrian government, and consequentially, their operations in government-controlled areas.

This caution might be warranted, if it were not for the fact that, according to the 2021 Syria Humanitarian Needs Overview, 80 percent of the people in Syria categorized as being in “severe” or “catastrophic” humanitarian need are in non-government-controlled northern Syria. If U.N agencies must indeed make this brutal calculus – humanitarian access to government-controlled versus non-government-controlled Syria – surely the relative needs of those populations should be the determining factor.

Advocacy Beyond the Security Council

In short, as lobbying ramps up ahead of the expiry of the Security Council’s authorization for cross-border humanitarian assistance, it should not just be the Security Council receiving all the attention. Attention should also be directed to the humanitarian parts of the U.N., led by the ERC and the IASC. They should be asked whether, in the event of a negative outcome at the Council, they will be bold enough and principled enough to seek and use alternative legal routes to continue their assistance in northern Syria.

The U.N. General Assembly, as the U.N.’s principal deliberative and policy-making body with responsibility for human rights, could help. The General Assembly cannot authorize intervention in the way the Security Council can, but it can express the views of the international community on situations of fact. So it could, for example, pass a resolution affirming the “necessity” of humanitarian assistance in northern Syria. The General Assembly’s Third Committee in fact came very close to doing this already, when in October last year it passed a resolution emphasizing that “the humanitarian cross-border mechanism remains an essential and life-saving channel to address the humanitarian needs of a significant portion of the population” of Syria. The General Assembly plenary could adopt a similar resolution. Indeed, it could be even more explicit, by emphasizing that the international community has an “essential interest” in ensuring that lifesaving humanitarian assistance is provided, and recognizing that in northern Syria this essential interest faces grave and imminent peril. Such a resolution might encourage and support the ERC, the IASC and/or individual U.N. humanitarian agencies to seek a more permissive legal opinion, which would then provide them with a strong justification to continue the cross-border operation, regardless of what happens at the Security Council in July.

Note: This article is based on a longer article forthcoming in the Yearbook of International Humanitarian Law, “Does International Law Permit the Provision of Humanitarian Assistance without Host State Consent? Territorial Integrity, Necessity and the Determinative Function of the General Assembly’, available here.

Image: This picture taken on May 4, 2020 during the Muslim holy fasting month of Ramadan shows members of a displaced Syrian family from the town of Ariha in the southern countryside of the Idlib province, breaking their fast together for the sunset “iftar” meal, in the midst of the rubble of their destroyed home upon their return to the town for one day after fleeing during the previous military assault by Syrian government forces and their allies. (Photo by AAREF WATAD/AFP via Getty Images)