In early May 2008, Cyclone Nargis struck the coast of Myanmar with wind speeds exceeding 200 km/h. Widely regarded as one of the deadliest storms ever recorded, it caused catastrophic destruction, with an estimated 150,000 fatalities and millions affected through displacement, homelessness, and injury. Yet, fearing political interference and external condemnation, the military authorities initially refused all offers of international humanitarian assistance.
This response exposed a gap in the legal framework governing international disaster assistance, particularly regarding whether and when a State may lawfully refuse external aid in situations of overwhelming domestic incapacity, thereby reigniting a debate over the limits of State control over access to its territory in humanitarian emergencies. In addressing this question, the International Law Commission (ILC) has drawn an analogy between disaster relief and the rules of international humanitarian law (IHL) concerning humanitarian assistance during armed conflict.
This article argues, however, that the IHL analogy provides an insufficient foundation for the prohibition of arbitrary refusal of humanitarian assistance, given its limited practice, contested legal reasoning, and uncertain acceptance among States. A more convincing approach is to ground this obligation in international human rights law, reflecting States’ responsibility to protect individuals and providing a stronger foundation for future disaster protection rules.
Institutionalization and Contestation in International Disaster Relief Law
On 4 December 2024, the United Nations General Assembly (UNGA) adopted Resolution 79/128, in which it considered the work of the International Law Commission (ILC) at its sixty-eighth session, including the second-reading adoption of the Draft Articles on the Protection of Persons in the Event of Disasters (DAPPED). The resolution emphasized “the need for a comprehensive global legal regime,” invited governments to submit proposals for amendments to the draft articles by 31 December 2025, and decided to elaborate and conclude a legally binding instrument on disaster protection by no later than the end of 2027. This institutional development signals a clear trajectory toward the transformation of the DAPPED into a multilateral convention in the near future.
While some commentators argue that the draft articles strike an appropriate balance between the sovereignty of the affected State and the provision of external assistance, a number of provisions have faced sustained criticism from States throughout the drafting process.
This tension is particularly evident in Article 13, which has emerged as a key site of disagreement between States. Seeking a middle ground, the ILC provides in paragraph 1 that “the provision of external assistance requires the consent of the affected State,” while paragraph 2 adds that “consent to external assistance shall not be withheld arbitrarily.” However, several States have objected to this formulation, emphasizing that affected States retain the sovereign prerogative to decide whether to request or accept assistance, and that no customary international law or State practice provided for the obligation on the part of an affected State to accept outside assistance. Thus, if such official objections persist, they may complicate efforts to develop a coherent global legal framework envisaged by the General Assembly. More fundamentally, these disagreements reveal an unresolved question concerning the legal foundation of this obligation: whether the obligation should be justified through an analogy with IHL or grounded instead in international human rights law.
Challenges to a Non-Arbitrary Refusal Duty
The ILC’s attempt to establish a duty of non-arbitrary refusal of consent in disaster situations primarily relies on an analogy with IHL. Within the IHL framework, the obligation not to arbitrarily refuse external assistance derives primarily from Article 70(1) of Additional Protocol I and Article 18(2) of Additional Protocol II, and has been repeatedly reaffirmed in UNGA resolutions reflecting State practice, thereby forming a widely acknowledged consensus within the international community.
Building on this foundation, the ILC Commentary seeks to transpose this rule beyond armed conflict to situations of disaster relief. It relies on materials specific to armed conflict to support this position, arguing that although such sources relate to armed conflict, the underlying legal issue of non-arbitrary refusal of consent is formulated in similar terms in both armed conflict and disaster contexts.
However, unlike IHL, the alleged duty finds little support in State practice. The materials relied upon by the Special Rapporteur and the ILC Commentary are almost entirely non-binding. More importantly, States including Russia, Iran, China, and Australia have expressly rejected any duty not to arbitrarily refuse external assistance in their comments on DAPPED. This paucity of supporting practice has been explained by Matias Thomsen, who argues that states’ refusals of international disaster relief are primarily driven by concerns over the politicisation of aid and its implications for sovereignty, including fears of external interference in territorial integrity or domestic governance, the use of humanitarian assistance as a vehicle for political influence, and the imposition of explicit or implicit conditionalities that may undermine state autonomy.
Therefore, although IHL offers an important reference for limiting arbitrary refusals of humanitarian assistance in armed conflict, this article argues that the analogy with IHL cannot, given the lack of supporting State practice, serve as the primary basis for extending such an obligation to disaster situations. A more convincing legal foundation lies instead in customary international human rights law, whose binding obligations apply irrespective of the existence of armed conflict and continue to constrain State conduct in situations of disaster.
From Human Rights Obligations to Non-Arbitrary Refusal of Consent
While the “non-arbitrary refusal” standard finds conceptual support in IHL, its transposition into disaster law lacks consistent and sufficiently developed State practice. Yet this uncertainty in analogical extension does not preclude the existence of a viable legal basis in the disaster context. Despite differences in applicable legal frameworks between armed conflict and disaster situations, the core question remains the same: a State may not arbitrarily refuse external humanitarian assistance where such refusal would entail a breach of its other international legal obligations. Even absent a direct transposition from IHL, the obligation can be grounded in international human rights law, the core content of which is widely regarded as reflecting customary international law.
Accordingly, under DAPPED, the requirement of consent must be interpreted so as to ensure that States do not, by withholding consent, place themselves in breach of their obligations under international human rights law. This connection between the refusal of consent and human rights obligations is consistently reflected across a range of instruments concerning humanitarian assistance in disaster situations. The Human Rights Committee, for instance, has interpreted Article 6 of the International Covenant on Civil and Political Rights as encompassing a positive obligation on States to take appropriate measures to safeguard the right to life. It follows that, in certain circumstances, the refusal of offers of humanitarian assistance may amount to a violation of that right. This position is echoed in UN General Assembly Resolution 43/131, which affirms that abandoning victims of natural disasters and similar emergencies without providing humanitarian assistance constitutes a threat to human life and an affront to human dignity.
The point has been articulated even more explicitly by the Institut de Droit International, which provides that affected States are under an obligation not arbitrarily or unjustifiably to reject bona fide offers of humanitarian assistance, nor to deny access to victims. In particular, such refusals are impermissible where they are likely to endanger the fundamental human rights of affected populations or would amount to a violation of the prohibition on starvation of civilians as a method of warfare.
More broadly, the International Covenant on Economic, Social and Cultural Rights (ICESCR) imposes positive obligations on States, requiring them not only to respect but also to ensure and fulfil a range of rights—such as the rights to life, food, housing, and an adequate standard of living—through, inter alia, international cooperation. These rights, which are closely intertwined with the provision of international disaster relief, are widely regarded as reflecting customary international law. As noted in the ILC commentary, an affected State that arbitrarily refuses humanitarian assistance may thereby breach its obligation to cooperate under the ICESCR, which in turn can result in violations of specific substantive rights, including the rights to food, housing, and clothing.
Ultimately, therefore, the requirement of consent cannot be understood in isolation: it is constrained by the State’s international human rights obligations, from which follows a prohibition on the arbitrary refusal of external humanitarian assistance.
Politicisation Concerns and Sovereignty: Reassessing the Justifications for Refusing Humanitarian Assistance
As noted above, the paucity of supporting State practice may partly reflect States’ concerns over the politicisation of international disaster relief. Critics accordingly question why States would accept an obligation that could weaken their political standing while exposing them to criticism—or even sanctions—when refusing assistance. These concerns are reinforced by the indeterminacy of the rule itself.
In particular, the ILC Commentary to DAPPED provides little guidance on how “arbitrariness” is to be assessed, offering neither clear criteria nor firm grounding in general international law or State practice. It merely states that arbitrariness must be determined on a case-by-case basis. In the absence of a clear threshold, the rule risks opportunistic invocation and may even be used as a pretext for interference in domestic affairs.
This lack of clarity has already attracted criticism from several States and may impede the conclusion of a disaster relief treaty. It therefore underscores the need for further clarification in future negotiations. A more refined framework—clarifying the criteria of arbitrariness and embedding the exercise of consent within a dual structure of sovereignty and humanitarian considerations—could help mitigate concerns over politicisation. In this regard, some scholars have proposed criteria to determine when a refusal may be regarded as “arbitrary.”
More importantly, only when the criteria for assessing “arbitrariness” are sufficiently clarified can States properly understand the relevant obligation as regulating how sovereignty is exercised, rather than constraining sovereignty itself. Once this distinction is accepted, DAPPED should not be seen as limiting State sovereignty, but as institutionalising a responsible form of sovereign exercise within a multilateral framework. On this view, accepting external assistance is not a relinquishment of sovereignty, but an exercise of it through the regulation and management of such assistance, reflecting both governing capacity and political legitimacy.
Conclusion
This article has examined the emerging standard of non-arbitrary refusal of consent to humanitarian assistance in disaster situations, highlighting both its doctrinal uncertainty and its contested grounding in State practice. While its transposition from IHL remains controversial, this article argues that international human rights law offers a more legally applicable and practically grounded basis for prohibiting arbitrary refusals of humanitarian assistance in disaster situations.
However, the indeterminacy of “arbitrariness” risks undermining both acceptance and compliance. A more refined framework clarifying arbitrariness and balancing sovereignty with humanitarian obligations is therefore essential for future treaty-making. Ultimately, as a binding instrument on disaster protection approaches conclusion, States should be encouraged to conceive of sovereignty not as a defensive power to exclude external aid, but as a responsibility to regulate its provision in line with international human rights obligations.
About the author
Kunyang Li is a Researcher at the Institute of International Law, Zhongnan University of Economics and Law, and an LL.M. candidate at the University of Hong Kong.
Image credit
Yosh Ginsu on Unsplash
