DEFINING THE

HUMANITARIAN SPACE
THROUGH PUBLIC
INTERNATIONAL LAW

Sylvain Beauchamp
Attorney-at-Law (Quebec),
LL.B. (Sherbrooke), D.E.S. (IUHEI, Geneva).

Former Senior International Humanitarian Law

Advisor of the Canadian Red Cross and field delegate
of the International Committee of the Red Cross.

Currently Partnerships Officer of the Canadian

human rights organization Rights & Democracy

Sponsored By: Funded By:

Defining The Humanitarian Space On the Edges of Conflict
Through Public International Law

ABSTRACT
This paper explores the historical origins of the notion of humanitarian space or space of freedom
for humanitarian action and discusses the extent to which this concept is supported by public
international law. In particular, this paper reviews four factors, which during the 20th century,
collaborated to a change of focus of the humanitarian space from activities to actors.

This paper also shows that the notion of humanitarian space is supported in situations of armed
conflicts based on international humanitarian law, and is reasonably strongly in situations of natural
and technological disasters. However, public international law is mainly silent regarding how and by
whom reconstruction and international development work may be conducted, thereby emphasising
that the humanitarian space is a notion that international law seems to confine to humanitarian
assistance proper, rather than to the types of actors which are involved in its delivery.

Finally, this paper argues that the time is probably ripe for the development of a legally binding
instrument that would focus on the rights of victims and enshrine the principles of impartiality and
humanity into the three stages of the international aid continuum: humanitarian relief (both in armed
conflicts and disasters), reconstruction, and international development.
Defining The Humanitarian Space On the Edges of Conflict
Through Public International Law

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................... 1
II. HISTORICAL ORIGIN OF THE HUMANITARIAN SPACE DEBATE ...... 2
A. Humanitarian aid: change of focus from military to civilians ........................................ 2
B. Institutionalization of international disaster relief ......................................................... 3
C. Institutionalization of international development .......................................................... 4
D. The changing role of military actors ............................................................................. 5
III. HUMANITARIAN ASSISTANCE AND INTERNATIONAL LAW:
WHO AND HOW?............................................................................................ 9
A. International Humanitarian Law.................................................................................... 9
B. Red Cross Law ............................................................................................................ 13
C. United Nations Law ..................................................................................................... 15
IV: CONCLUSION ................................................................................................ 16
Defining The Humanitarian Space On the Edges of Conflict
Through Public International Law

DEFINING THE HUMANITARIAN SPACE THROUGH PUBLIC

INTERNATIONAL LAW
SYLVAIN BEAUCHAMP*

I. INTRODUCTION
The complexity of todays humanitarian and other international assistance provided to civilians is
phenomenal. During the 20th century, the conceptual paradigms within which international assistance is
delivered saw an expansion from humanitarian relief proper to reconstruction and development, from
armed conflicts to natural and technological disasters, from being distributed solely by independent
humanitarian organizations and non-governmental organizations to the increasing involvement of political
and military actors and inter-governmental agencies, and from a situation of absolutely unimpeded
humanitarian access to victims to todays situation where the security of humanitarian personnel is
increasingly at risk with the multiplication of impediments put by State and non-State actors on
international aid. From the perspective of international non-governmental organizations, it is
unquestionable that there is a correlation between the increasing politicization of humanitarian aid and the
decreasing security of relief personnel, and it is certainly this politicization of international aid that
prompted the notion of humanitarian space to being developed by non-governmental organizations in
the 1990s.

The very notion of humanitarian space is, however, profoundly unclear. In Rony Braumans vision of the
space for humanitarian action, 1 which through time became the humanitarian space debate, non-
governmental organizations need a space of freedom in which we are free to evaluate needs, free to
monitor the distribution and use of relief goods, and free to have a dialogue with the people.2 The
freedom referred to in this definition is with respect to all actors, i.e. both donors and recipients of
international aid, and it implies that there is no political interference in the delivery of humanitarian aid by
non-governmental organizations. For its part, OCHAs Glossary of Humanitarian Terms of 2003 defines
the humanitarian operating environment as [a] key element for humanitarian agencies and
organizations when they deploy, [which] consists of establishing and maintaining a conducive
humanitarian operating environment, sometimes referred to as "humanitarian space. Indeed, as further
developed below, the United Nations views humanitarian space as a sphere within which the UN-led
(and -coordinated) humanitarian assistance activities are provided in a secure and non-impeded manner.
For this reason, the numerous calls for the expansion of humanitarian space made by UN agencies are
mostly directed towards governments and non-State actors that are active in the country where

*
Attorney-at-Law (Quebec), LL.B. (Sherbrooke), D.E.S. (IUHEI, Geneva). Former Senior International
Humanitarian Law Advisor of the Canadian Red Cross and field delegate of the International Committee of the
Red Cross. Currently Partnerships Officer of the Canadian human rights organization Rights & Democracy. The
views expressed in this paper are solely the authors. Email contact: sylvainbeauchamp@mac.com. The research
for this paper is current as of 1 March 2008.
2008 Sylvain Beauchamp.
1
VON PILAR, U., Humanitarian Space Under Siege - Some Remarks from an Aid Agency's Perspective,
Background Paper prepared for the Symposium "Europe and Humanitarian Aid - What Future? Learning from
Crisis", 22-23 April 1999, Bad Neuenahr, available online at: https://www.aerzte-ohne-
grenzen.de/obj/_scripts/msf_download_pdf.php?id=1250&filename=humanitaere_debatte_konferenzpapier-
1998.pdf, at p. 4.
2
See GROMBACH WAGNER, J., An IHL/ICRC perspective on 'Humanitarian space', available online at
www.odihpn.org/report.asp?ID=2765.

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international aid is being delivered, as opposed to aiming more broadly for a lesser politicization of
international aid, including on the part of donor countries. In this sense, the United Nations conception of
the shrinking of humanitarian space refers to the margin of manoeuvre that UN-coordinated
organizations have in delivering humanitarian aid, whereas non-governmental organizations include in
this notion the increased politicization of international aid, including from intergovernmental agencies
such as the United Nations.

Moreover, while originally limited to humanitarian aid proper (i.e. emergency assistance in times of war
or disaster), the notion of humanitarian space is today also being applied by non-governmental
organizations to reconstruction work and more long-term international development. In fact, the
broadening of the mandates of important aid organizations, which are increasingly involved in the
distribution of humanitarian aid, reconstruction and development work in the same country (e.g.
Afghanistan, Iraq, Sri-Lanka, Sudan, etc.), can certainly account for the extrapolation of the notion of
humanitarian space from being focused on the nature of the assistance provided, which was originally the
case, to the nature of the actor involved in international work.

The meaning and contours of this humanitarian space are therefore anything but clear. Leaving aside the
complex policy questions raised by the humanitarian space debate, the present paper focuses on the extent
to which public international law can be used to delineate the discussion. In order to do this, this paper
firstly reviews the historical origins of the debate, and secondly examines more carefully certain fields of
public international law which are relevant to the humanitarian space.

II. HISTORICAL ORIGINS OF THE HUMANITARIAN SPACE DEBATE

Todays debate around the meaning and use of the humanitarian space has been informed by several
milestones in recent history. The present section briefly reviews four important factors which have shaped
todays humanitarian space debate, that is (1) the change of humanitarian aids focus from military to
civilians; (2) the institutionalization of international disaster relief; (3) the institutionalization of
international development; and (4) the changing role of military actors.

A. HUMANITARIAN AID: CHANGE OF FOCUS FROM MILITARY TO CIVILIANS

Although domestic charitable activities in favour of those affected by natural and man-made disasters
may be traced back centuries in one form or another,3 it is only in the late 19th century that the notion of
international humanitarian assistance (or aid) started to appear in an institutionalized manner with the
creation of the International Committee of the Red Cross (ICRC) and national Red Cross societies in
1863, and the subsequent adoption of the 1864 Geneva Convention for the Amelioration of the Condition
of the Wounded in Armies in the Field. At that time, war-time relief consisted exclusively in what is today
known as humanitarian assistance, i.e. relief operations to save and preserve life in emergencies or
their immediate aftermath.4 As shown by the language of the resolution which created the International

3
For an in-depth study of the origins and historical activities of international non-governmental organizations, see
for example RYFMAN, P., Non-governmental organizations: an indispensable player of humanitarian aid,
International Review of the Red Cross No. 865 (2007), pp. 21-45.
4
European Union, Council Regulation No 1257/96 of 20 June 1996 concerning humanitarian aid, 5th preambular
paragraph. Article 1 of the regulation further specifies that [] humanitarian aid shall comprise assistance,
relief and protection operations on a non-discriminatory basis to help people in third countries, particularly the
most vulnerable among them, and as a priority those in developing countries, victims of natural disasters,
manmade crises, such as wars and outbreaks of fighting, or exceptional situations or circumstances comparable

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Defining The Humanitarian Space On the Edges of Conflict
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Red Cross and Red Crescent Movement, the national Red Cross committees were initially designed to
provide emergency assistance to the armies to which they were attached (i.e. their respective armies),
and were acting under military command when deployed on the battlefield. 5 This architecture was only
natural at that time, since the vast majority of the direct casualties of war were military personnel, as
witnessed in 1862 by Henry Dunant in Un souvenir de Solfrino. Naturally, the notion of humanitarian
space was a non-issue at that time.

With time, armed forces developed their own medical units, which are entitled to and do use the red cross
and red crescent emblems; and Red Cross entities increasingly and eventually exclusively focused on
providing humanitarian assistance to civilians who were victims of wars. Indeed, as subsequent historical
developments had progressively reversed the proportion of military versus civilian deaths that was
prevailing in the 19th century to reach todays situation where it is commonly estimated that
approximately 80% of all casualties of war are non-combatants,6 independent humanitarian relief
organizations were almost naturally drawn to focus their aid on civilians. It is the same increasing
proportion of civilian casualties in wars which, after having passed a very sad threshold with the
astounding figures of World War II (47.2 Million civilian deaths, e.g. 65% of all casualties), finally
prompted the adoption by the international community of the 1949 Geneva Convention (IV) on the
Protection of the Civilian Population,7 and gave rise to the emergence of modern international human
rights law with the 1948 Universal Declaration of Human Rights. Naturally, humanitarian relief agencies
had already started providing assistance to the civilian population and civilians caught in wars much
before the adoption of these instruments, but these post-World War II legal developments at least the
1949 Geneva Convention IV8 imposed strong legal obligations upon States in providing and allowing
the provision of humanitarian assistance to civilians who were victims of armed conflicts. From the
perspective of public international law, the 1949 Geneva Convention IV is therefore the first legal
foundation of some humanitarian space, as will be seen in the next section of this paper.

to natural or man-made disasters. It shall do so for the time needed to meet the humanitarian requirements
resulting from these different situations.
For its part, the UNHRCs Glossary provides the following: Humanitarian assistance refers to
assistance provided by humanitarian organizations for humanitarian purposes (i.e., non-political, non-
commercial, and non-military purposes). See Master Glossary of Terms, UNHCR, Division of International
Protection Services, June 2006.
5
See Art. 5 and 6 of the Resolutions of the Geneva International Conference, 26-29 October 1863, available
online at www.icrc.org/ihl.
6
For data on casualties resulting from armed conflicts, see in particular the Uppsala Conflict Data Program,
available online at http://www.pcr.uu.se/research/UCDP/graphs1.htm.
7
This convention was far from being the first attempt to develop an internationally binding instrument to protect
the civilian victims of wars. Already in 1923, the International Committee of the Red Cross had proposed to the
XIth International Conference of the Red Cross a Projet dune Convention internationale rglant la situation des
civils tombs la guerre et au pouvoir de lennemi. See BUGNION, F. Le Comit international de la Croix-
Rouge et la protection des victimes de la guerre, Comit International de la Croix-Rouge, Genve, 1994, p. 141.
8
Adopted under the format of a simple declaration of the UN General Assembly, the 1948 UDHR was not as such
legally binding upon States. It is however today admitted that the principles proclaimed in the Universal
Declaration are binding upon all States of the international community, either by way of rules of customary
international law or general principles of law. On the general nature of the Universal Declaration, see, inter alia,
SHAW, M., International Law, 5th Edition, Cambridge University Press, 2003, at p. 260, and NGUYEN, Q.D.,
DALLIER, P., and PELLET, A., Droit international public, L.G.D.J., 7th Edition, Paris, 2002, at p. 660. In
general, see GHANDHI, P.R., The Universal Declaration of Human Rights at Fifty Years, G.Y.B.I.L. 1998, p.
206.

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B. INSTITUTIONALIZATION OF INTERNATIONAL DISASTER RELIEF

In addition to the normative development to provide international legal protection to civilians in wartime
and peacetime, and to the change in the beneficiaries of the international assistance provided by charitable
organizations, the second half of the 20th century also saw a sharp explosion in the number of actors that
seek to provide humanitarian assistance to civilians. Relief organizations also started to significantly
increase their focus on natural disasters from the 1960s onwards, especially through the work of the
International Federation of the Red Cross and the Red Crescent, and within the United Nations.
Regarding the division of labour between the various actors which were present in international disaster
relief at that time, it is noteworthy that, in its first resolution on international disaster relief, the UN
General Assembly noted its readiness to be at the disposal of international non-governmental
organizations concerned with emergency relief to assist them in pursuing the question of co-ordination.9
In 1965, the position of the United Nations was therefore to merely make its agencies available to already
existing relief organizations, in particular the Red Cross and Red Crescent Movement. In contrast, the
United Nations philosophy today is that international non-governmental organizations should be
coordinated by the UN, as discussed below with respect to integrated missions. These changes played an
important role in shaping todays humanitarian space debate.

C. INSTITUTIONALIZATION OF INTERNATIONAL DEVELOPMENT

Another development which is crucial to understanding the humanitarian space debate is the appearance
of the notion of international development in the post-WWII. This is largely responsible for the
involvement of State and State-controlled actors in the delivery of aid to civilians, mainly through the
work of the United Nations, the Bretton Woods institutions and other inter-governmental bodies. 10 Today,
many thousands of institutions States and non-State actors are involved in international development
work all over the world, and focus their work on various pillars such as human rights, the rule of law,
education, the condition of women, elections, etc.

It is clear to the present author that the distinction between humanitarian aid (whether wartime or disaster
related), reconstruction work and international development is a pivotal variable in the humanitarian
space equation. Indeed, with their multiplication and professionalization after 1945, international non-
governmental organizations refined the conceptual foundations of humanitarian assistance, both during
armed conflicts and disasters, around the principles of humanity, impartiality, independence and non-
discrimination.11 Non-governmental organizations further postulated that humanitarian assistance must
remain devoid of any and all politicization in order to answer solely to the humanitarian needs of the
victims.12 As will be seen in greater detail in the next section, these principles of humanitarian assistance

9
See United Nations General Assembly resolution 2034 (XX) of 7 December 1965, which is entitled Assistance
in cases of natural disasters.
10
International development programs are also conducted by a number of countries on a bilateral basis.
11
See in particular the Code of Conduct: Principles of Conduct for The International Red Cross and Red Crescent
Movement and NGOs in Disaster Response Programmes, which was adopted by the 26th International
Conference of the Red Cross and Red Crescent, Geneva 3-7 December 1995. As of
23 November 2007, this Code of Conduct had been signed by 433 international NGOs, in addition to being
applicable to the almost 190 components of the International Red Cross and Red Crescent Movement. See
http://www.ifrc.org/cgi/pdf_disasters.pl?codeconduct_signatories.pdf.
12
These concepts where expressed for the fist time internationally in 1965 with the adoption of the Fundamental
Principles of the Red Cross and Red Crescent by the XXth International Conference of the Red Cross which was
held in Vienna. These principles are Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity,
and Universality.

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find their origin in international humanitarian law and Red Cross law. However, humanitarian principles
were never imported as legal principles into the field of international development, in which traditional
humanitarian organizations found themselves increasingly involved (e.g. the Red Cross and Red
Crescent Movement), while international development institutions at the same time found themselves
more and more involved in war-affected and disaster-affected countries during and after the period of
decolonization. The need for the conceptual mixture of the two fields emergency relief and development
was expressed very clearly in 1991 by the UN General Assembly, which specified that [t]here is a
clear relationship between emergency, rehabilitation and development. In order to ensure a smooth
transition from relief to rehabilitation and development, emergency assistance should be provided in
ways that will be supportive of recovery and long-term development. Thus, emergency measures should
be seen as a step towards long-term development.13

This continuum of international aid emergency, reconstruction, development is crucial to understand

the humanitarian space debate. Indeed, instead of attempting to foster the emergence of international legal
principles for international development work in order, inter alia, to replicate key humanitarian principles
in this field, non-governmental organizations which became also involved in development work seem to
have tried from the 1990s onwards to protect their own sphere of action, especially from political and
military interferences, based on the principles of action which had been developed for humanitarian
assistance proper. This is what was referred to in the introduction of this paper as a switch of focus from
activities to institutions in the humanitarian space debate.

This short paper does not allow for extensive comments on the lack of specific legal normativity in
international development, which is ultimately governed by public international law. It must however be
underscored that the legal imbalance regarding how humanitarian aid and international development work
must be conducted is a significant part of the dispute around the humanitarian space today, in which
organizations involved in both humanitarian aid and development are caught. As pointedly observed by
Cornish:

Unfortunately by questioning the politicisation of aid and the notion of shared goals (commonly
ascribed) amongst all 3D [Defense, Diplomacy and Development] actors, humanitarians are now
seen as obstructionist and antiquated by the political and military communities. Multi-mandate
organizations are caught in this paradox, as entities committed both to providing relief
(according to independent humanitarian principles) and carrying out development programming
which can be seen as supporting the political interests of host governments and /or of donor
governments.14

D. THE CHANGING ROLE OF MILITARY ACTORS

The contemporary debate around the humanitarian space is also informed by the fundamental change in
the nature of international military interventions during the 20th century, and the increased overlaps with
functions which were traditionally the domain of non-governmental organizations. The first notable step
in this direction was the involvement of domestic military forces in international humanitarian

13
Para. 9 of the Annex to UN General Assembly resolution 46/182 (1991), which was entitled Strengthening of
the coordination of humanitarian emergency assistance of the United Nations.
14
See CORNISH, S., No Room for Humanitarianism in 3D Policies: Have Forcible Humanitarian Interventions
and Integrated Approaches Lost Their Way?, Journal of Military and Strategic Studies, Fall 2007, Vol. 10 issue
1, at p. 3. Cornishs article also contains a very useful and interesting review of the interactions between
international military actors and international non-governmental organizations in recent history, including in
Iraq, Sierra Leone, Somalia, Rwanda, etc.

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missions, which gradually systematized themselves from 1956 onwards from the angle of UN
peacekeeping and peace-enforcement missions under the UN Charter. While originally being observation
missions conducted by military personnel under UN mandates with the consent of the host State to
monitor the observance of ceasefire agreements and conduct other tasks of similar nature,15 UN
peacekeeping missions received, after the end of the Cold War, increasingly more robust mandates, with
the addition of humanitarian components mainly to protect the delivery of humanitarian aid to
populations in need and support the work of UN and other humanitarian agencies.16

This trend to include humanitarian components in multinational peace enforcement missions was further
strengthened during the 1990s, in particular in the case of Somalia17 and Rwanda,18 and eventually led to
the concept of UN integrated missions being further refined in 2000 by the report of the Panel on United
Nations Peace Operations, also known as the Brahimi Report.19 The principal goal of the then proposed
Integrated Missions Task Forces (IMTFs) was to coordinate the activities of complex UN missions20 in
the field of political analysis, military operations, civilian police, electoral assistance, human rights,
development, humanitarian assistance, refugees and displaced persons, public information, logistics,
finance and personnel recruitment, among others.21 It is easy to understand that, from the perspective of
independent humanitarian agencies, humanitarian aid in the context of integrated missions is reduced to
only one component of the UN efforts for reconstruction and development, and as such faces serious risks
of being used to achieve the political (and possibly military) goals of the mission at the peril of
humanitarian principles. Under this angle, it is therefore not surprising that the UN Office for the Co-
Ordination of Humanitarian Affairs (OCHA) defines humanitarian operating environment without
making any reference to the independence of humanitarian assistance, as recently recalled by Threr.22 It
is partly for this reason, and in order to safeguard its own independence of action, that the ICRC does not

15
See for example Security Council Resolution 340 (1973), which established the second United Nations
Emergency Force in order to supervise the ceasefire between Egyptian and Israeli forces.
16
The first of such cases was Security Council Resolution 761 (1992) which authorized the Secretary-General to
deploy immediately additional elements of the United Nations Protection Force to ensure the security and
functioning of Sarajevo airport and the delivery of humanitarian assistance in accordance with his report of 6
June 1992 in Sarajevo and other parts of Bosnia-Herzegovina (see para. 1).
17
In its resolution 794 (1992), the UN Security Council authorized the Secretary-General and Member States
cooperating to implement the offer referred to in paragraph 8 above to use all necessary means to establish as
soon as possible a secure environment for humanitarian relief operations in Somalia (para. 10).
18
UN Security Council Resolution 925 (1994) mandated the United Nations Assistance Mission for Rwanda
(UNAMIR) to (a) Contribute to the security and protection of displaced persons, refugees and civilians at risk
in Rwanda, including through the establishment and maintenance, where feasible, of secure humanitarian areas;
and (b) Provide security and support for the distribution of relief supplies and humanitarian relief operations
(para. 4).
19
A/55/305, S/2000/809, 21 August 2000. For an historical account of integrated missions, see in particular Report
on Integrated Missions: Practical Perspectives and Recommendations, Independent Study for the Expanded UN
Executive Committee on Humanitarian Affairs Core Group, May 2005, available online at
http://www.globalpolicy.org/security/peacekpg/general/2005/05integrated.pdf, at pp. 10-12
20
The examples cited in the report are Sierra Leone (UNAMSIL), Kosovo (UNMIK) and East Timor (UNTAET).
See Brahimi Report, op. cit. note 19, para. 198.
21
Brahimi Report, op. cit. note 19, para. 198.
22
THURER, D., Dunants Pyramid: thoughts on the humanitarian space, International Review of the Red Cross
No. 865 (2007), pp. 47-63, at p. 55.

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wish to fully take part in UN integrated missions.23

This is not to say that the notion of humanitarian space is not an important aspect of integrated missions
from the perspective of the United Nations. Indeed, in a 2005 report entitled Humanitarian Response
Review led by Jan Egeland, an independent commission observed that:

The UN integrated Mission model does not take adequately into account, humanitarian concerns
and represents a challenge for a more inclusive humanitarian system. In that sense and as a
minimum requirement to be met, when Integrated Missions are established, it is essential that the
DSRSG for Humanitarian Affairs and Development be empowered to ensure that humanitarian
space is preserved and the humanitarian principles of independence, impartiality and neutrality
are consistently upheld. For the humanitarians, the challenges revolve around creating and
protecting the necessary humanitarian space and preserving the principles of humanitarian
imperatives in a politically charged environment.24 (emphasis added)

However, as indicated in the introduction of this paper, it is clear that the numerous calls for the
safeguarding of the humanitarian space25 made by the United Nations are addressed to governments
which are the recipients of the assistance, rather than being meant to protect non-governmental
organizations from international politics and developmental doctrines. In other words, the United Nations
notion of the humanitarian space is a sphere of UN-coordinated humanitarian assistance activities, rather
than the recognition that non-governmental organizations have the right to be free from political
interferences from the UN or other intergovernmental agencies. Regarding international disaster relief, the
Egeland report led to the creation of clusters of humanitarian actors acting under the leadership of lead
agencies, in order to increase aid coordination. The fact that the International Federation of the Red Cross
and Red Crescent was chosen as the lead agency for emergency shelter relief in natural disasters is a
positive step for the proponents of non-politicized humanitarian action. The invitation extended to non-
governmental organizations to increase their input and participation in the cluster mechanism is also
positive. On the other hand, all the other cluster leads are UN agencies,26 and much remains to be seen in
terms of implementation of the reform as a whole, especially with respect to the coordination of
humanitarian assistance in armed conflicts and regarding the relationship between UN agencies and non-
governmental organizations. In any event, it is certain that, as recognized by the Secretary General of the
United Nations in 2007, the drive towards integration often raises concerns over conflicting mandates,

23
For a full description of the position of the ICRC on integrated missions, see Official Statement An ICRC
perspective on Integrated Missions, delivered by ICRCs Vice-President Jacques Forster on 31 May 2005,
available online at http://www.icrc.org/Web/eng/siteeng0.nsf/html/6DCGRN.
24
Humanitarian Response Review - An independent report commissioned by the United Nations Emergency Relief
Coordinator & Under-Secretary-General for Humanitarian Affairs, Office for the Coordination of Humanitarian
Affairs (OCHA), August 2005, available online at http://www.reliefweb.int/library/documents/2005/ocha-gen-
02sep.pdf, at p. 51.
25
The safeguarding of the humanitarian space was, for example, described as one of the outputs of the United
Nations Assistance Mission in Iraq in a report from the UN Secretary General issued on 26 November 2007
(A/62/512/Add.5, at p. 11). See also the Report of the Secretary-General on children and armed conflict in
Myanmar, which called upon the government of Burma to respect the humanitarian space (S/2007/666 of 16
November 2007, at p. 9 (para. 29) and p. 10 (para. 32)).
26
See http://ocha.unog.ch/humanitarianreform/Default.aspx?tabid=217.

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in particular in the area of humanitarian space and neutrality, which have yet to be adequately or
consistently addressed.27

Roughly at the same time as the UNs move towards integrated missions from 2000 onwards, military and
political actors started to regard the provision of assistance to civilians as a component of the Three
Block War through a domestic rather than international approach to military action. This notion was
conceptualized by USA General Charles Krulak in 1999 to describe how, in the same mission, soldiers
may be required to conduct full scale military actions, peacekeeping operations and humanitarian relief. 28
In this concept of three block war, military humanitarian relief operations would, inter alia, be focused
on gathering intelligence in order to increase the security of the soldiers and thereby facilitate the
fulfillment of the military mission, rather than being solely guided by humanitarian principles. From the
perspective of independent humanitarian agencies, the notion of Three Block War is very comparable to
the more recent Canadian approach referred to as 3D (Development, Defence and Diplomacy), which
articulates foreign actions in war-affected countries in a coordinated manner through these three axis,
thereby instrumentalizing each of the components to pursue a broader goal which is rooted more in
politicized and often military-led development than humanitarian assistance proper.29 Both the Three
Block War and the 3D doctrines take place within the wider and controversial framework of humanitarian
interventions which has been conceptualized in the notion of responsibility to protect in late 2001,30 and
both subsume humanitarian and development aid provided by international non-governmental
organizations within the wider political agenda of peace-building, often in the name of aid coordination.
This has a direct bearing on the humanitarian space debate.

It is in this enormously complex international environment that the humanitarian space debate rages. The
debate occurs within a spectrum which includes two extremities: at one end, the view that humanitarian
aid should be solely guided by humanitarian considerations and delivered by humanitarian
organizations; and at the other end, the postulate that in order to achieve peace and conflict prevention,
humanitarian aid must be integrated into an holistic political and military approach linked to peace-
building and development. Not only is this debate about which actors should be involved in international
aid, but it also concerns the manner in which international assistance is delivered. The debate transcends
by far humanitarian assistance proper; it also applies to reconstruction and development aid. In the
context of this shift of focus from activities to institutions in the humanitarian space debate, non-
governmental organizations maintain that the increased politicization of the international aid continuum
results in a decrease of security for international non-governmental organizations, which are more and
more associated with politicized actors even when distributing humanitarian aid.

27
Report of the Secretary General entitled Triennial comprehensive policy review of operational activities of the
United Nations development system, 11 May 2007 (A/62/73E/2007/52), at p. 23 (para. 97).
28
See KRULAK, C., The Strategic Corporal: Leadership in the Three Block War, Marines Magazine, January
1999, available online at http://www.au.af.mil/au/awc/awcgate/usmc/strategic_corporal.htm.
29
On the 3D doctrine and the humanitarian space, see CORNISH, S., No Room for Humanitarianism in 3D
Policies: Have Forcible Humanitarian Interventions and Integrated Approaches Lost Their Way?, op. cit. note
14.
30
See The Responsibility to Protect, Report of the International Commission on Intervention and State
Sovereignty, International Development Research Centre, Ottawa, December 2001, available online at
www.iciss-ciise.gc.ca. The notion of responsibility to protect was also endorsed by the UN General Assembly
in the 2005 World Summit Outcome Document of 15 September 2005, A/60/L.1 (see paras. 138-140).

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The present author does not pretend to attempt to offer ready solutions to the policy issues at stake. 31
Rather, the next section will focus on rules and principles of public international law that help to delineate
the legal contours of the humanitarian space debate. This section will seek to determine whether the very
notion of humanitarian space is in anyway supported by public international law. This section will also
explore the legal elements of two main aspects of the humanitarian space debate: who may be involved in
humanitarian assistance; and how the humanitarian assistance may be provided. As will be seen, there is
no doubt that States must respect a certain form of humanitarian space for the benefit of impartial
humanitarian organizations albeit of an uncertain content in armed conflicts and other situations.
Conversely, hard law is mostly silent outside situations of armed conflict and natural disasters, and
yields to reasonably developed soft law rules.

III. HUMANITARIAN ASSISTANCE AND INTERNATIONAL LAW:

WHO AND HOW?
Despite the always-increasing and often very positive influence of international civil society in the
development and implementation of public international law, the latter remains a State-centered body of
law, which binds, first and foremost, State actors.32 The most relevant bodies of public international law
that come into play with respect to the humanitarian space question, and which are therefore examined in
the present paper, are international humanitarian law (IHL), Red Cross law, and United Nations law. As
seen below, each of these fields can be used to delineate the legal contours of a certain form of
humanitarian space. While international human rights law is crucial to identify the rights to which human
beings are entitled in terms of receiving humanitarian aid and development when facing a natural or man-
made catastrophe,33 this body of law is not particularly useful for the humanitarian space debate
especially in answering the two main questions of this debate (who and how) and is therefore not
examined in this short paper.

A. INTERNATIONAL HUMANITARIAN LAW

Under IHL, which applies in situations of international and non-international armed conflicts, it is the
parties to the conflict that have the duty to provide humanitarian aid to civilians and the civilian
population which are in their power, as recently recalled by Grombach Wagner and Stoffels. 34

In situations of military occupation, this obligation first arose from Article 43 of 1907 Hague Regulation
IV, 35 which provides that the occupying power (i.e. the State) [] shall take all the measures in his

31
For an example of how the International Movement of the Red Cross and the Red Crescent approaches the
humanitarian space under the angle of neutral and independent military action, see the resources contained on
the website of the ICRC at
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/section_debate_on_humanitarian_action.
32
On how public international law binds non-State actors, see inter alia CLAPHAM, A., Human Rights
Obligations of Non-State Actors, Oxford University Press, Oxford, 2006; and ALSTON, P. (ed.), Non-State
Actors and Human Rights, Oxford University Press, Oxford, 2005.
33
Relevant human rights will include civil and political rights, such as the right to life and the right to security, as
well as economic, social and cultural rights such as the right to an adequate standard of living, the right to food,
the right to health, etc.
34
GROMBACH WAGNER, J., An IHL/ICRC perspective on 'Humanitarian space', op. cit. note 2; and
STOFFELS, R.A., Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps,
International Review of the Red Cross No. 855 (2004), pp. 515-545.

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power to restore, and ensure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country. It is indeed clear that, in case of need, providing
humanitarian assistance to the population will be necessary to ensure the safety of the population under
occupation. During military occupation, this obligation to provide humanitarian assistance was laid down
with more specificity in Art. 55 of 1949 Geneva Convention IV, which provides that [t]o the fullest
extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical
supplies of the population [], which was extended to clothing, bedding, means of shelter and other
supplies essential to the survival of the civilian population with the adoption of Additional Protocol I in
1977.36

In international armed conflicts other than military occupation, the 1977 Additional Protocol I also
specifies that relief actions shall be undertaken when the civilian population is not adequately provided
with supplies essential to its survival. 37 Although this language is somewhat ambiguous, it is clear that the
bearers of this obligation can only be the States which are parties to an international conflict covered by
the 1977 Additional Protocol I, which obliges them to either deliver the aid themselves or, should they be
unable, to allow other actors to do so.

While the obligation to provide humanitarian relief to the population is not explicitly contained in IHL
provisions applicable to non-international armed conflicts, it has been argued that this obligation is
incorporated in the principle of humane treatment that is applicable to this type of armed conflict.38 Still
with respect to non-international armed conflicts, Art. 18 of 1977 Additional Protocol II also provides that
impartial relief actions shall be undertaken if the civilian population is suffering undue hardship owing
to a lack of the supplies essential to its survival. As specified in the authoritative ICRC Commentary on
this provision, [s]uch external aid is complementary; it is only provided when the responsible authorities
can no longer meet the basic necessities of the civilian population whose survival is in jeopardy.39

It is therefore clear that, not only is there an obligation upon States involved in international and non-
international armed conflicts to provide humanitarian assistance to civilians which are in their power
albeit not an absolute one but this obligation is certainly accompanied by the right to do so. For the
purpose of the humanitarian space debate, international humanitarian law, therefore, cannot be used as a

35
The Hague Regulations are part of customary international law. As early as in 1946, the International Military
Tribunal of Nuremberg indeed held that [t]he rules of land warfare expressed in the [Hague] convention
undoubtedly represented an advance over existing international law at the time of their adoption. But the
convention expressly stated that it was an attempt "to revise the general laws and customs of war," which it thus
recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all
civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to
in Article 6 (b) of the Charter. (Opinion and Judgment of the International Military Tribunal for the Trial of
German Major War Criminals, 41 A.J.I.L. (1947), p. 172, at pp. 248-249).
36
See Art. 69(1) of 1977 Additional Protocol I.
37
See Art. 70(1) of 1977 Additional Protocol I.
38
See in particular Stoffels who, citing Jean Pictet and Luigi Condorelli, recalls that [i]n the case of internal
conflicts, however, the existence of these duties and rights can be clearly deduced from Article 3 common to the
four Geneva Conventions, in particular from the prohibition of violence to life and person. (STOFFELS, R.A.,
Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps, op. cit. note 34, at p.
519). See also GROMBACH WAGNER, J., An IHL/ICRC perspective on 'Humanitarian space', op. cit. note
2;
39
SANDOZ Y., SWINARSKI C., ZIMMERMANN B. (eds.), Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949, Geneva, ICRC and Martinus Nijhoff Publishers, 1986, p.
1479 (para. 4878).

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departure point to argue that military and other political actors may not be involved in humanitarian relief
activities. However, States must implement this obligation and distribute humanitarian relief in
accordance with the fundamental IHL principles of humane treatment and without any adverse
distinction based, in particular, on race, religion, or political opinion.40 The relief thus provided must
also be humanitarian and impartial in character.41 This was later confirmed by the International Court
of Justice, which specified that genuine humanitarian aid must comply with the Red Cross principles of
humanity, impartiality and non-discrimination. 42 There is, therefore, no doubt that any distribution of
humanitarian aid by military actors that is conditioned, for example, by the provision of military
intelligence by the recipients or that is conducted for any other reason than purely humanitarian
considerations and in a discriminatory manner breaches international humanitarian law. This is naturally
also the case if States direct humanitarian organizations to provide their humanitarian relief in such an
illegal manner. This legal protection against enforced politicization of humanitarian action is clearly an
important component of the legal contours of humanitarian space.

Interestingly, this right to ensure that the population is provided with supplies essential to its survival is
not exclusive to States pursuant to IHL. Indeed, the general principle is that the International Committee
of the Red Cross and other impartial humanitarian organizations are also granted such a right under
international humanitarian law. Pursuant to common article 9/9/9/10 of the 1949 Geneva Conventions:
The provisions of the present Convention constitute no obstacle to the humanitarian activities
which the International Committee of the Red Cross or any other impartial humanitarian
organization may, subject to the consent of the Parties to the conflict concerned, undertake for
the protection of civilian persons and for their relief. (emphasis added)

In situations of non-international armed conflicts, international humanitarian law similarly provides that
an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its
services to the parties to the conflict.43 This right to humanitarian initiative for impartial relief
organizations is also an important aspect of the concept of humanitarian space.

While humanitarian organizations possess the right to offer their services in international and non-
international armed conflicts, this does not necessarily mean that the parties to the conflict have the

40
Art. 27 of 1949 Geneva Convention IV. This requirement that humanitarian relief shall be made available
without any adverse distinction is also specifically mentioned in Art. 69(1) of 1977 Additional Protocol I
which provides the obligation that States have to ensure the survival of the population under occupation, as well
as within Art. 70(1) of 1977 Additional Protocol I.
41
Art. 70(1) of 1977 Additional Protocol I.
42
See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, where the Court held at pp. 124-125 (para. 242) that
There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country,
whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other
way contrary to international law. The characteristics of such aid were indicated in the first and second of the
fundamental principles declared by the Twentieth International Conference of the Red Cross, that "The Red
Cross. Born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours
in its international and national capacity - to prevent and alleviate human suffering wherever it may be found. Its
purpose is to protect life and health and to ensure respect for the human being. It promotes mutual
understanding, friendship, co-operation and lasting peace amongst al1 peoples" and that "It makes no
discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve
suffering, giving priority to the most urgent cases of distress."
43
Common Art. 3 of the 1949 Geneva Conventions (emphasis added). See also Art. 18(1) of 1977 Additional
Protocol II.

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corresponding obligation to accept such offers of services. In fact, it is clear from the above-quoted
common article 9/9/9/10 that the right vested upon impartial humanitarian organizations did not carry a
general obligation to that extent for States, at the time when the 1949 Geneva Conventions were adopted.
However, and already in 1949, this general principle contained exceptions that in some cases prevailed
over the general principle as a matter of lex specialis. This was, in particular, the case in situations of
military occupation, where Article 63 of 1949 Geneva Convention IV specifies that relief organizations in
occupied territories shall be allowed to pursue their activities in accordance with the Red Cross
principles, subject to temporary and exceptional measures imposed for urgent reasons of security.
Making this even clearer, the Convention also specifies that [i]f the whole or part of the population of an
occupied territory in inadequately supplied, the Occupying Power shall agree to relief schemes on behalf
of the said population [] Such schemes, which may be undertaken either by States or by impartial
humanitarian organizations such as the International Committee of the Red Cross, shall consist, in
particular, of the provision of consignments of foodstuffs, medical supplies and clothing.44 (emphasis
added).

In situations of military occupation, the 1949 Geneva Conventions therefore provide a relatively wide
space to those impartial humanitarian organizations that have offered their services, and States even
obligated themselves to guarantee the protection of the relief items. 45 It must, however, be underscored
that this humanitarian space is not absolute. Firstly, it is restricted to impartial humanitarian
organizations, and more specifically to those which pursued their activities in accordance with the Red
Cross principles. 46 Other types of organizations do not belong to this humanitarian space created by the
Geneva Conventions system in situations of military occupation. Secondly, the parties to the conflict
always retain a certain right of control, that is the right to search the relief consignments, to regulate
their passage and to ensure that they were to be used by the population in need, 47 even when they are
obliged to accept impartial humanitarian assistance provided by non-governmental organizations.

Outside the context of military occupation, the requirement that humanitarian relief activities be agreed
upon by States pursuant to common article 9/9/9/10 of the 1949 Geneva Conventions was significantly
softened by international practice during the second half of the 20th century. The departure point of this
evolution was certainly the development of the positive right that civilians have to receive relief
consignments sent to them, which they already enjoyed pursuant to the 1949 Geneva Conventions,
subject to imperative reasons of security. Although such a right to receive humanitarian assistance is still
debated today by a minority of scholars,48 it is very clear under Art. 23 of the 1949 Geneva Convention
IV that the parties to the conflict are under a general obligation to allow the free passage of all
consignments of medical and hospital supplies. This embryo of the right to receive humanitarian relief
was strengthened by Art. 70 of 1977 Additional Protocol I, which specifies that impartial and
humanitarian relief actions shall be undertaken if the civilian population is not adequately provided
with supplies essential to its survival, though subject to the consent of the concerned parties to the
conflict. The situation is the same in non-international armed conflicts pursuant to Art. 18(2) of 1977

44
Art. 59(1) of 1949 Geneva Convention IV.
45
Art. 59(3) of 1949 Geneva Convention IV.
46
This included those principles which had been embodied by the Geneva Conventions of 1864, 1906, 1929 and
1949, that is humanity, impartiality, and neutrality.
47
Art. 59(4) of 1949 Geneva Convention IV.
48
See in particular DINSTEIN, Y., The Right to Humanitarian Assistance, Naval War College Review, Autumn
2000, pp. 77-92, available online on http://ihl.ihlresearch.org, who states at p. 77 that [i]t is impossible to assert,
at the present point, that a general right to humanitarian assistance has actually crystallized in positive
international law.

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Additional Protocol II. In all instances, it was clearly agreed by the States that drafted the Additional
Protocols of 1977 that [a] Party refusing its agreement [to impartial relief activities] must do so for valid
reasons, not for arbitrary or capricious ones.49 Therefore, regardless of whether they are in a position to
comply with their own obligation to provide humanitarian assistance to the population, it is very clear
under IHL that States have the parallel obligation to implement the civilian populations right to receive
humanitarian relief that is essential to its survival, including the allowing of impartial relief organizations
to conduct humanitarian activities in favour of this population under certain conditions. Yet, only
impartial and humanitarian organizations can be part of this humanitarian space, be it in the context of
international or non-international armed conflicts.50

With the passing of time and the increasing role played during armed conflicts by impartial humanitarian
organizations, this obligation to allow the passage of relief supplies continued to be strengthened. As it
stands today, this obligation was found by a recent ICRC study to be part of customary international
humanitarian law, with the specification that the possibility for States to refuse the passage of
humanitarian relief must not be exercised based on arbitrary grounds.51 This study further confirmed that
[i]f it is established that a civilian population is threatened with starvation and a humanitarian
organization which provides relief on an impartial and non-discriminatory basis is able to remedy he
situation, a party is obliged to give consent.52 In addition, positive treaty law recognizes since 1998 that
wilfully impeding relief supplies as provided for under the Geneva Conventions is a war crime which
can be prosecuted before the International Criminal Court.53 This is a further confirmation that the
possibility for States not to consent to offers of services by impartial humanitarian organizations is not
absolute.

A final component of the humanitarian space covered by IHL is the obligation that States have to ensure
the respect and the protection of relief personnel, which ensues expressly from Art. 71 of 1977 Additional
Protocol I. 54 In addition, United Nations relief personnel and peace-keepers who do not take part in a
peace-enforcement mission under Chapter VII of the UN Charter are protected by the 1996 Convention
on the Safety of United Nations and Associated Personnel.

International humanitarian law, therefore, certainly provides support for impartial humanitarian action not
conducted by States during armed conflicts, but it also contains important limitative elements. In
particular, States which are parties to armed conflicts always retain a right of control concerning the
nature and the destination of the assistance. In addition, impartial humanitarian organizations must

49
SANDOZ Y., SWINARSKI C., ZIMMERMANN B. (eds.), Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949, op. cit. note 39, p. 819 (para. 2805).
50
See Art. 9/9/9/10 of the 1949 Geneva Conventions and Art. 18(2) of 1977 Additional Protocol II.
51
HENCKAERTS, J.-M., and DOSWALD-BECK, L., Customary International Humanitarian Law, Vol. I, and
Vol. II, Cambridge University Press, 2005. See also HENCKAERTS, J.M., Study on customary international
humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict,
International Review of the Red Cross No. 857 (2005), pp. 175-212. In particular, Art. 55 of the Study provides
that [t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian
relief for civilians in need, which is impartial in character and conducted without any adverse distinction,
subject to their right of control.
52
HENCKAERTS, J.-M., and DOSWALD-BECK, L., Customary International Humanitarian Law, Vol. I, op. cit.
note 51, p. 197. Emphasis added.
53
See Art. 8(b)(xxv) of the 1998 Rome Statute of the International Criminal Court.
54
On the protection of humanitarian personnel, see in particular MACKINTOSH, K., Beyond the Red Cross: the
protection of independent humanitarian organizations and their staff in international humanitarian law,
International Review of the Red Cross No. 865 (2007), pp. 113-130.

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comply with the security requirements of the party in whose territory they are carrying out their
activities. 55 Perhaps more importantly, the assistance provided by non-governmental organizations must
be both humanitarian and impartial in order to benefit from this protection provided by IHL. Despite the
silence of black letter law, these requirements are certainly applicable to non-international armed conflicts
by analogy.

B. RED CROSS LAW

Outside the context of armed conflicts, the first set of norms which were adopted to guide humanitarian
action in other disasters are the Fundamental Principles of the Red Cross, which were proclaimed by the
XXth International Conference of the Red Cross held in Vienna in 1965. These principles, which were
later incorporated into the statutes of the Red Cross and Red Crescent Movement in 1986, are the
principles of Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity, and
Universality. Although they certainly are binding for the components of the Red Cross and Red Crescent
Movement, these principles are also binding upon States through their incorporation into treaty law, 56 as
was the case in situations of military occupation as indicated above. 57 These principles are also binding
upon the States Parties to the Geneva Conventions because they were incorporated into the Statutes of the
Movement. As recalled by Bugnion, in accepting the Movement's new Statutes, the States party to the
Geneva Conventions explicitly undertook to cooperate with the Movement's components in accordance
with the Conventions, the Statutes and the resolutions of the International Conference.58 Moreover, it is
clear that given the mandatory force of the principles for members of the Movement and their place in
"Red Cross law" on the one hand, and the participation of governments in the adoption of the principles
on the other, it is obvious that, quite apart from any treaty obligation, States are bound to allow Red
Cross and Red Crescent bodies to act in accordance with the principles and to insist on this right being
respected. If this were not the case, government support for the adoption of the principles would be
meaningless.59 It follows that States are also bound by the declaration that international disaster relief
must be conducted by the Red Cross and Red Crescent Movement in accordance with the Fundamental
Principles, 60 and are therefore obliged not to politicize international disaster relief. Such a legal obligation
is, however, only valid towards the components of the International Red Cross and Red Crescent
Movement, and does not extend to other non-governmental organizations for the purpose of the
humanitarian space debate.

The principles of humanity and impartiality also constitute important components of the 1995 Code of
Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief,
which has, up to today, been signed by 433 non-governmental organizations. These principles certainly
play a role in tracing the contours of the international humanitarian space. The Sphere Project also
developed a Charter that expresses the same ideas as the Code of Conduct and is applicable in disasters
and conflicts.61 While they are not legally binding upon States, these codes of conduct, nonetheless,

55
Art. 71(4) of 1977 Additional Protocol I.
56
See BUGNION, F., Red Cross Law, International Review of the Red Cross No. 308 (1979), pp. 491-519.
57
See Art. 63 of 1949 Geneva Convention IV.
58
BUGNION, F., Red Cross Law, op. cit. note 56, at p. 501.
59
BUGNION, F., Red Cross Law, op. cit. note 56, at p. 507.
60
See Art. 6 of the Statutes of the International Red Cross and Red Crescent Movement, which were adopted by
the 25th International Conference of the Red Cross at Geneva in October 1986 and amended by the 26th
International Conference of the Red Cross and Red Crescent at Geneva in December 1995 and by the 29th
International Conference of the Red Cross and Red Crescent at Geneva in June 2006.
61
The Humanitarian Charter developed by the Sphere Project is available online at http://www.sphereproject.org.

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constitute very important best practices (or soft law) that, from a conceptual point of view, inform the
content of the humanitarian space.62

One should also mention the ambitious and very much needed project launched in 2001 by the
International Federation of the Red Cross and Red Crescent on international disaster response laws, 63
which seeks to address how legal frameworks at the international, regional and national levels, can best
address the operational challenges in international disaster relief operations carried out by States,
international organisations, NGOs, military forces and private companies.64 There is no doubt that the
outcomes of this project will be very important to further refine the borders of the humanitarian space in
disaster relief operations.

C. UNITED NATIONS LAW

Elements of a certain humanitarian space can also be found in United Nations resolutions, both issued
by the General Assembly and by the Security Council. For example, ensuing directly from the influence
of the 1965 Fundamental Principles of the Red Cross, the UN General Assembly adopted in 1971 its
resolution 2816 (XXVI) which is entitled Assistance in cases of natural disaster and other disaster
situations. This resolution dealt with disaster-related humanitarian assistance and established a Disaster
Relief Co-ordinator to coordinate humanitarian assistance. Interestingly, this resolution which is not
legally binding for State Members leaves the clear impression that the situation prevailing at the time
between UN agencies and international non-governmental organizations was an arms-length relationship,
since the Co-ordinator was expressly tasked to co-ordinate United Nations assistance with assistance
given by intergovernmental and non-governmental organizations, in particular by the International Red
Cross,65 rather than coordinate the latter with the former.

This impression was however reversed when, in 1991, the UN General Assembly established the United
Nations Office of Coordination of Humanitarian Affairs based on the premise that [t]he United Nations
has a central and unique role to play in providing leadership and coordinating the efforts of the
international community to support the affected countries [in international disaster relief].66 Although
seriously affecting the independence of non-governmental organizations in humanitarian relief, this
resolution reinforced in very clear terms that humanitarian assistance must be provided in accordance
with the principles of humanity, neutrality and impartiality,67 thereby constituting an important
normative benchmark for State-led humanitarianism, be it inside or outside the context of armed
conflicts.68 However, the same resolution emphasized that emergency assistance must be provided in
ways that will be supportive or recovery and long-term development, which somewhat diminished the
imperative importance of the principle of impartiality. Despite the fact that this UN General Assembly

62
On the importance of soft law in the international legal order, see in particular ABI-SAAB, G., Eloge du 'droit
assourdi'. Quelques rflexions sur le rle de la soft law en droit international contemporain, Nouveaux
itinraires en droit : Hommage Franois Rigaux, Coll. Bibliothque de la Facult de Droit de l'Universit
catholique de Louvain, Bruxelles, Bruylant, 1993, pp. 59-69.
63
For more information on the IDRL project, see www.ifrc.org/idrl.
64
See http://www.ifrc.org/what/disasters/idrl/programme/intro.asp.
65
See paragraph 1(c) of the resolution.
66
See paragraph 12 of the annex to UN General Assembly Resolution 46/182 (19 December 1991).
67
See paragraph 2 of the annex to UN General Assembly Resolution 46/182 (19 December 1991).
68
The UN General Assembly reaffirmed the importance of the principles of neutrality, humanity and impartiality
for the provision of humanitarian assistance in its resolution 57/150 of 16 December 2002.

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resolution is not legally binding upon State Members, it has produced very concrete effects on the ground
and has eventually led to the development of the concept of integrated missions, as noted earlier, and
contributed to strengthening the leadership role of the United Nations in coordinating humanitarian
assistance, including that provided by non-governmental organizations.

Apart from elements of institutional independence for non-governmental organizations that may or may
not characterize the humanitarian space from the perspective of the UN, the General Assembly and the
Security Council condemned on numerous occasions impediments to humanitarian relief actions, 69 and
reiterated the obligation to grant access to relief supplies to civilians. 70 Despite the observation made
earlier in this paper that, for the United Nations, the humanitarian space is, in fact, its own space for
humanitarian action that coordinates non-governmental organizations, the foregoing resolutions on
unimpeded humanitarian access and the obligation to provide assistance to victims provide benefit to all
humanitarian and United Nations personnel, thereby having a direct bearing for the humanitarian space
as traditionally perceived by independent humanitarian actors. United Nations Security Council
resolutions are binding upon the members of the United Nations pursuant to the UN Charter.71

IV. CONCLUSION
As demonstrated in this paper, the notion of humanitarian space is, to use an understatement, fluid. When
it was originally developed in the early 1990s, humanitarian space was concerned with humanitarian
assistance proper, and sought to maximize the victims access to aid based on the principles of humanity
and impartiality. With time and the multiplication of actors involved in the delivery of international aid,
as well as their working methods, the notion of humanitarian space has increasingly been used in different
manners and for different purposes. Today, non-governmental organizations mainly use it to protect their
independence of action in all aspects of their international work (emergency, reconstruction and
development). From their perspective, humanitarian space is really NGO space. For their part, United
Nations agencies use humanitarian space in order to assert their role as the natural coordinator of
international aid, which must be done through a continuum in which humanitarian assistance is only a
fragment that must answer to wider peace-building considerations. All actors agree that humanitarian
space should protect them from attacks in carrying out their duties, which are performed with variable
degrees of politicization.

While containing no specific definition or rule regarding humanitarian space as an identifiable concept,
public international law is useful to highlight some elements of this space, mainly with respect to by
whom and how humanitarian assistance must be delivered. If provided within the context of armed

69
For example, the Security Council recently reaffirmed with respect to the Democratic Republic of Congo the
the obligation of all parties to comply fully with the relevant rules and principles of international humanitarian
law relating to the protection of humanitarian and United Nations personnel, and also demands that all parties
concerned grant immediate, full and unimpeded access by humanitarian personnel to all persons in need of
assistance, as provided for in applicable international law. (S/RES/1797 of 21 December 2007). For its part,
the General Assembly uses similar language. In the case of Afghanistan, the General Assembly appealed to
Member States and to the international community to provide, on a non-discriminatory basis, adequate
humanitarian assistance to the people of Afghanistan and to the Afghan refugees in neighbouring countries,
pending, and with a view to encouraging, their voluntary repatriation, and requests all the parties in Afghanistan
to lift the restrictions imposed on the international aid community and to allow the free transit of food and
medical supplies to all populations of the country. (A/RES/52/145 of 6 March 1998).
70
See for example Security Council resolution 824 (1993) and General assembly Resolution 55/2 (2000), in
addition to General Assembly resolution 52/145 (1998) cited in footnote 69 above.
71
See Art. 25 of the United Nations Charter.

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conflicts, any and all humanitarian assistance to civilians must be provided in accordance with the
principles of humanity and impartiality, that is, solely on the basis of humanitarian needs and without
discrimination. While States involved in armed conflicts have the obligation, and therefore the right, to
provide humanitarian relief to the population in their power, impartial non-governmental organizations
also have a relative right to carry out humanitarian activities and in any case, a right to offer such
assistance in which case they must be protected and allowed to act independently from any interference,
including from the politicization of aid. Outside the context of armed conflicts, the legal situation is much
murkier. While States are obliged to respect the disaster relief activities of the Red Cross and Red
Crescent Movement, non-governmental organizations are not covered by this legal obligation. In addition,
there are no legally binding international rules regarding how international development work must be
conducted. In short, public international law supports a certain humanitarian space for humanitarian
assistance proper, as opposed to reconstruction and development. By contrast, international law cannot be
used to entertain the idea that certain types of organizations have a greater legitimacy than others in
providing international aid.

While recognizing with non-governmental organizations that the independence of humanitarian action
must be protected, the traditional divides between humanitarian aid, reconstruction and international
development cannot be applied rigidly in todays world. Public international law offers only certain
elements of an answer as to by whom and how can international aid be delivered. In addition, the
institution-focused conception of humanitarian space is inadequate in situations where international aid
must be delivered, for example, in a mixture of armed conflict and international disaster, and which
require humanitarian, reconstruction and development aid, such as in tsunami-affected Sri-Lanka and
Indonesia from December 2004 onwards. The time may be ripe for the adoption of an international
convention to refocus the debate on victims and to articulate in a more comprehensive manner their right
to international aid within the parameters set by the principles of humanity and impartiality.

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