12 Feb International Disaster Law and the Standoff at the Venezuela-Colombia Border
[Alonso Illueca is a lawyer and adjunct Professor of International Law and Human Rights at Universidad del Istmo.]
It is highly unlikely that someone would argue that, currently, Venezuela is not affected by a disaster, i.e. a series of events resulting in widespread loss of life, great human suffering and distress, mass displacement and large-scale material damage, which are thereby disrupting the functioning of Venezuelan society. Humanitarian relief organizations and NGOs such as Care, the Center for Strategic and International Studies, Human Rights Watch, and Amnesty International have documented the largest exodus in Latin America in a century, and the dire conditions on the ground, which are characterized as a regional humanitarian disaster.
The current standoff between Nicolas Maduro’s regime and the interim President Juan Guaidó on the entry of humanitarian aid to Venezuelan territory, deserves to be analyzed from the prism of a recently developed area of international law: protection of persons in the event of disasters. As recently as 2016, the United Nations International Law Commission (ILC) finalized its work on “protection of persons in the event of disasters” which resulted in 18 draft articles with its commentaries.
The topic “protection of persons in the event of disasters” was included in ILC’s programme of work in 2007. The Special Rapporteur and current Chairperson of the ILC, Eduardo Valencia Ospina, issued eight reports on the subject matter. In its commentaries, the ILC noted that the draft articles contained elements of both codification and progressive development of international law. These draft articles include within its scope natural and man-made disasters and provide a framework for safeguarding human dignity and human rights (draft articles 4 and 5). They acknowledge humanitarian principles such as humanity, neutrality and impartiality (draft article 6), and establish a duty to cooperate to States among themselves, as well as to other assisting actors, e.g. United Nations and the Red Cross and Red Crescent Movement (draft article 7). It also states the forms of cooperation in the event of disasters (draft article 8) and offers a series of measures, which States can undertake to reduce the risks of disasters (draft article 9). Normally, when a disaster occurs in the territory of a State, the affected State has a duty to ensure the protection of persons and provision of disaster relief assistance; it also retains the primary role in the direction, control, coordination and supervision of such assistance (draft article 10). Draft article 11 even requires the affected State to seek external assistance when the extent of the disaster exceeds its national capacities.
Nonetheless, as most of international law requires States to do, the provision of external humanitarian assistance is dependent on the consent of the affected State (draft article 13). The question of who can provide consent in the case of Venezuela is an open one. For States that recognize the Guaidó presidency, consent has already been provided. Their recognition is based on the constitutional legitimacy of Guaidó as the interim president, and by regional rules on democracy (OAS Charter and Inter-American Democratic Charter). It is argued that the consent provided by a freely and fairly elected government carries a presumption of legal authority when such government is elected under international supervision and it is universally recognized. This presumption is preserved even after losing almost all the effective control of the territory. Although many States consider Guaidó as the de jure president, he has never exercised effective control over Venezuela. The case of Gambia illustrates how regional democratic guidelines and rules, could serve the Guaidó government on providing consent for the deliverance of humanitarian aid, without having effective control. Nonetheless, the conditions on the ground dictate otherwise. The Maduro regime still retains effective control of Venezuela. This display of authority gives the regime – legally speaking – the authority to invite foreign troops, even for the delivery of humanitarian aid. As of now, the Maduro government is rejecting the humanitarian assistance offered by the U.S., which currently sits at the Venezuela-Colombia border.
Can the Maduro regime withhold its consent to external humanitarian assistance? First, an affected State has no unlimited right to refuse assistance. This is based on the dual nature of sovereignty, which entails rights and obligations, inter alia, the protection and observance of human rights. The right to refuse assistance should be read in conjunction with draft article 10, which provides that the affected State has primary, but not the exclusive, role in the direction, control, coordination and supervision of disaster relief assistance in its territory. When the extent of the disaster exceeds the State’s capabilities it has the duty to seek external assistance (draft article 11).
Second, consent to humanitarian assistance cannot be withheld arbitrarily (draft article 13.2.), particularly when the affected State is unwilling or unable to provide the required assistance. The ILC implied the customary nature of this limited discretion by analyzing the Guiding Principles on Internal Displacement, which were unanimously adopted by the UN General Assembly and described by the UN Secretary General as “the basic international norm for protection” of the internally displaced. These guiding principles provide that “consent shall not be arbitrarily withheld”. Similarly, the Institute of International Law dealt with this issue twice in 1989 and 2003, concluding that affected States have a duty not to arbitrarily reject a bona fide offer of humanitarian assistance.
The term “arbitrarily” is key to understanding the question at hand. The ILC notes that the withholding of consent is not arbitrary when: (1) the affected State can provide the assistance; (2) the affected State has accepted assistance form elsewhere; (3) if the offer of assistance is not made in accordance with the foundational principles of humanitarian assistance, i.e. humanity, neutrality and impartiality, and on the basis of non-discrimination. The ILC notes that if the request complies with all the requirements established in the draft articles, a decision from the affected State to withhold its consent would entail a strong inference of arbitrariness (see commentaries).
Third, although the affected State has discretion in determining which type of assistance it needs, such discretion must be exercised in good faith and in accordance with its international legal obligations. Among these obligations we find the right to life (article 6 of the International Covenant on Civil and Political Rights) as interpreted by the Human Rights Committee, which includes the obligation for States to adopt positive measures to protect this right. For the ILC an arbitrary refusal of humanitarian assistance would entail a violation of the right to life.
The Maduro regime claims that Venezuelans are not “beggars” and is equating the humanitarian assistance to foreign intervention (Time). Maduro has also claimed that humanitarian aid would be the forerunner to a US-led invasion. The latter could be read as his rationale, if any, for rejecting the humanitarian assistance, as the assistance offered does not comply with the principles of neutrality and impartiality, as well as non-discrimination. This seems to be the position of the International Committee of the Red Cross and Red Crescent Movement, whom in a joint statement said that they could not take part in the delivery effort, citing its “shared fundamental principles of impartiality neutrality, and independence” and the absence of any prior agreement with the two organizations. Recently, the President of the Red Cross in Venezuela, Francesco Rocca, called upon States to respect the neutral, impartial and independent nature of the Red Cross’ humanitarian work in the country, and highlighted that their work was not political.
The current situation in the Venezuela-Colombia border poses complex legal and political questions. It also offers a chance to countries that have refrained from recognizing any of the sides (Mexico and Uruguay) to portray themselves as impartial brokers and provide the much-needed humanitarian aid in accordance with international law. From a political perspective, this would preclude any of the actors involved (mainly the Maduro regime) from arguing that the humanitarian relief assistance is not complying with the principles of neutrality, impartiality and non-discrimination. In this sense, the International Contact Group for Venezuela could have an important role to play. Nonetheless, if the aid is delivered to the Venezuelan military, it could be read as a victory for Maduro and buy him time as well as room for maneuver. Additionally, there is no guarantee that the aid would be delivered to the ones in need. If humanitarian assistance is not delivered, human suffering is set to continue. In the Venezuelan crisis there is everything but easy answers.
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