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On Dec. 9, the U.N. Security Council adopted a standing humanitarian “carve-out” to nearly all of its asset freezes. (The remaining asset-freeze regime, as we explain below, already contained a similar carve-out.) In doing so, the Security Council made a watershed decision—one with potentially far-reaching implications for efforts to safeguard impartial humanitarian assistance in numerous crises around the world. Further, the rationale underpinning the resolution’s core obligation arguably reflects something of a sea change regarding a key aspect of global security policy.
Before delving into the resolution, its potential import, and what to keep an eye on moving forward, two framing aspects are worth mentioning.
First, for people not steeped in this area of law and policy, it might not be obvious why it would be necessary to “carve out” humanitarian assistance from certain sanctions measures in the first place. The short answer is that restrictive measures, such as asset freezes, that are imposed with respect to certain individuals and entities pose legal, regulatory, financial, operational, and other challenges or even impediments to humanitarian actors—as well as their counterparts in the financial sector and elsewhere—to reliably access and provide services to people in need in situations of armed conflict and other relevant crises.
Second, it also might not be obvious what difference there is, if any, between a humanitarian “carve-out,” a humanitarian “exemption,” a humanitarian “exception,” and a humanitarian “derogation,” or a similar notion. We have heard all of these terms used in this and similar contexts. It is difficult to deduce stable definitions of these terms from relevant fields of law. That is in part because the notions may have different legal meanings in various contexts, whether at the international or national level. We use the term “carve-out” here because it seems to encapsulate the basic notion at issue. That notion is that U.N. member states are now legally required not to apply a set of obligations concerning humanitarian activities that otherwise would be applicable.
The New Humanitarian “Carve-Out” in Brief
In a nutshell, the Security Council now requires that all 193 U.N. member states “carve out” activities pertaining to humanitarian assistance by certain entities and people from most of the Council’s asset-freeze sanctions regimes. (The exception is that a similar carve-out is already applicable, and will continue to apply, in relation to the situation in Afghanistan.)
More specifically, under Resolution 2664 (2022), U.N. member states are now bound under the U.N. Charter to permit certain humanitarian-assistance-related activities and not consider them a violation of the Council’s relevant asset-freeze obligations. Those expressly permissible activities are “the provision, processing or payment of funds, other financial assets, or economic resources, or the provision of goods and services necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs” by certain entities and people. The Council expressly enumerated those actors to include a large (if not necessarily exhaustive) array of individuals and entities involved in supporting basic human needs:
- “The United Nations, including its Programmes, Funds and Other Entities and Bodies, as well as its Specialized Agencies and Related Organizations, international organizations, humanitarian organizations having observer status with the United Nations General Assembly and members of those humanitarian organizations, or bilaterally or multilaterally funded non-governmental organizations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals, or OCHA-coordinated humanitarian ‘clusters,’ or their employees, grantees, subsidiaries, or implementing partners while and to the extent that they are acting in those capacities”; or
- “[A]ppropriate others as added by any individual Committees established by this Council within and with respect to their respective mandates.”
Two other types of measures that are included in some of the Security Council sanctions regimes targeting individuals and entities—namely, Council-imposed obligations related to travel bans and to arms embargoes—are not addressed by this resolution. Therefore, this new humanitarian carve-out is applicable only in relation to relevant asset-freeze-related obligations.
A Watershed Development
From our perspective, this new humanitarian carve-out constitutes a watershed development for the following reasons.
First, if adopted in good faith and carried out prudently, Resolution 2664 (2022)—which 53 states co-sponsored—has a potential to help safeguard impartial humanitarian action in several practical respects. For example, the resolution might help minimize both unwarranted delays in the provision of lifesaving assistance and sanctions-compliance costs. It might also help incentivize providers of commercial services to transact with humanitarian organizations. These concerns formed part of the reasoning reportedly put forward by the United States and Ireland to other members of the Council in a concept note supporting the resolution. In these and other respects, the resolution might help to influence various regulations and restrictions embedded in donor agreements for humanitarian-related funding. That might particularly be the case with respect to such donor measures that, at least to date, have obliged humanitarian organizations to ensure that they are not providing resources that might benefit individuals and entities designated under certain Security Council-decided asset freezes.
Second, the resolution covers nearly all of the current 13 Security Council sanctions regimes targeting individuals and/or entities with asset freezes. (While there are 14 ongoing Security Council sanctions regimes, the sanctions regime concerning Guinea-Bissau pursuant to Resolution 2048 (2012) does not impose an asset freeze and is instead limited to a travel ban.) As mentioned, the only exception among those 13 regimes is the humanitarian carve-out for the situation in Afghanistan adopted by the Security Council on Dec. 22, 2021, which is similar to this new carve-out entailed in Resolution 2664. Under an operative paragraph of Resolution 2664, the Afghanistan-related carve-out pursuant to Resolution 2615 (2021) shall remain in effect.
Third, in making the key decisions and the core requests in the resolution, the Security Council expressly acted under Chapter VII of the U.N. Charter. The combination of that invocation of Chapter VII and the express use of the term “decides” in certain operative paragraphs provides very strong grounds to argue that the Security Council intended for the decisions entailed in Resolution 2664 to be binding under the U.N. Charter. All U.N. member states must accept and carry out the decisions of the Security Council in accordance with the U.N. Charter.
Fourth, Resolution 2664’s core obligation reflects a notable kind of standing carve-out. Specifically, the obligation not to apply certain aspects of asset freezes not only expressly supersedes any conflicting previous resolutions—it shall also expressly apply, with one important caveat, indefinitely with respect to all future asset freezes imposed or renewed by the Security Council in the absence of an explicit decision by the Council to the contrary. This “default” applicability of the obligation not to apply selected asset-freeze-related obligations means that a future effort to narrow, withdraw, or otherwise modify Resolution 2664’s core carve-out must receive affirmative support from a sufficient group of Security Council members. (Under the U.N. Charter as it stands today, decisions of the 15-member Security Council on all nonprocedural matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.) At least as far back as 2014, a High-level Review of U.N. Sanctions—sponsored by the governments of Australia, Finland, Germany, Greece, and Sweden—recommended that “[s]tanding exemptions for humanitarian actors should be adopted.” Numerous additional stakeholders have also called for such exemptions. (One of us, for example, in a briefing to the Security Council in 2019, appealed to the Council “to urgently consider comprehensive exemptions for principled humanitarian action that are grounded in a steadfast commitment to international humanitarian law.”) In any event, our research suggests that the kind of standing carve-out decided in Resolution 2664 is notably rare in Security Council practice—and it is thus all the more remarkable to have been applied with respect to such a diverse collection of Security Council sanctions regimes.
Fifth, the exception to the standing character of the carve-out concerns the Security Council’s ISIL (Da’esh) and al-Qaeda sanctions regime. Following multiple rounds of negotiations on draft texts, the Council decided in Resolution 2664 to apply the humanitarian carve-out with respect to that specific sanctions regime only for a period of two years, not indefinitely. In doing so, the Security Council expressed its intent to make a decision on extending the carve-out with respect to that regime before the expiry of that two-year period.
Next, the rationale underpinning the resolution’s humanitarian carve-out is arguably significant from a policy perspective. In an operative paragraph, the Council requested that providers relying on Resolution 2664’s humanitarian carve-out “use reasonable efforts to minimize the accrual of any benefits prohibited by sanctions, whether as a result of direct or indirect provision or diversion, to individuals or entities designated by this Council or any of its Committees, including by strengthening risk management and due diligence strategies and processes.” Those words should be read, in our view, under a microscope. The Council did not require providers to use, for example, “all possible efforts.” Nor did the Council preclude the accrual of any such benefits. At least in these senses, in adopting this humanitarian carve-out, the Security Council implicitly disavowed restrictive approaches that prohibit any financial support or benefits in relation to designated individuals and entities. From our perspective, this might be seen as representing a principled sea change in security policy by the U.N.’s principal organ conferred with the primary responsibility for the maintenance of international peace and security.
In a preambular paragraph, the Security Council recalls the need for member states “to ensure that all measures taken by them to implement sanctions, including in the context of counter-terrorism, comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, as applicable.” Notably, however, the resolution does not link the nonapplication of relevant asset-freeze obligations to the applicability of international humanitarian law or any other specific field of law. That might be significant because it means that this new humanitarian carve-out applies irrespective of whether the relevant situation qualifies as an armed conflict or whether a particular human rights instrument is applicable to the relevant situation. (Some of the situations subject to the Security Council “targeted” sanctions qualify as armed conflicts under international law, while others do not.)
Furthermore, Resolution 2664 merits attention not only because of the effects it may have on the delivery of urgently needed humanitarian assistance or because of the resolution’s nature, character, and content. The document is arguably notable because the U.S. was one of its penholders. (Ireland was the other.) Many observers, including the two of us, have long perceived the U.S. as taking relatively restrictive approaches to counterterrorism and other security-related regimes as they relate to principled humanitarian action. Across several recent administrations, the U.S. government has, nevertheless, continued to engage closely on related issues with concerned stakeholders, including with several other states. It appears that the current administration’s support of this humanitarian carve-out may have been the result of extensive internal reflection and, perhaps, an openness to change its position.
Finally, Resolution 2664 was adopted in a political environment marked by ongoing and significant complexities on matters related to humanitarian assistance. Not least, the humanitarian carve-out was adopted against the backdrop of, at times, acrimonious negotiations among certain Security Council members with respect to (re)authorizing the use by U.N. humanitarian agencies and their implementing partners of routes across conflict lines and a border crossing to ensure that humanitarian assistance reaches people in need throughout Syria.
Some Elements to Keep an Eye On
For states and other actors concerned with upholding respect for impartial humanitarian action, it may be worthwhile to keep an eye on the following questions and, where warranted, to consider taking additional steps.
1. What changes, if any, will U.N. member states make to bring their national legal orders into conformity with Resolution 2664 (2022)?
As a minimum, it seems, all U.N. member states ought to review their existing legal, policy, and administrative frameworks to assess whether any modifications may be necessary to comport with the resolution.
2. What information—and what potential trends and trajectories—might emerge from the Council-requested briefings from the U.N. Emergency Relief Coordinator (ERC)?
In Resolution 2664, the Security Council requested that the ERC brief or arrange a briefing for each relevant committee within its mandate 11 months from the date of adoption and every 12 months afterward on the delivery of humanitarian assistance and other activities that support basic human needs provided consistent with the resolution. That request from the Council to the ERC includes briefings on “any available information regarding the provision, processing or payment of funds, other financial assets or economic resources to, or for the benefit of, designated individuals or entities, any diversion of funds or economic resources by the same, risk management and due diligence processes in place, and any obstacles to the provision of such assistance or to the implementation of” the resolution. Over time, these briefings, perhaps similar to a request for briefings on humanitarian impacts in the Somalia context, may provide useful information and analysis for concerned stakeholders.
3. What forms of guidance and supervision, if any, may emerge with respect to the practice of relevant Security Council committees?
In Resolution 2664, the Security Council directed the committees established by it to assist member states in properly understanding and fully implementing the resolution’s core obligation, taking into account the unique context of the sanctions falling under their respective mandates, by issuing “Implementation Assistance Notices.” In addition, the Security Council directed those committees, assisted by their respective panels of experts, to monitor the implementation of the resolution’s core obligation, including any risk of diversion. The Council also recalled the committees’ ability to engage with member states to ensure the effective implementation of its decisions, such as “by requesting additional information from such Member States, including with respect to providers under their jurisdiction, as needed to support such implementation.” Thus, it seems possible that the relative effectiveness of the new humanitarian carve-out may turn in no small part on each relevant committee’s kind and degree of engagement on these matters. Stakeholders might keep their eyes peeled, for example, as to whether each relevant committee takes sufficient steps to help ensure that, as a potential first step, member states are undertaking sufficient review of national legislation and policy frameworks. Perhaps it might even be the case that at least some relevant committees take steps to call for specific member states to bring their national practices and policies into alignment with the new humanitarian carve-out.
4. What practical impact, if any, does the adoption of this humanitarian carve-out have on providers, including humanitarian actors and their commercial partners?
As we mentioned above, part of the motivation for this humanitarian carve-out was to help minimize both unwarranted delays in the provision of lifesaving assistance and sanctions-compliance costs while also incentivizing providers of commercial services to transact with humanitarian organizations. For its part, the Security Council requested relevant providers to assist the ERC in the preparation of salient briefings by providing relevant information within 60 days of any request from the ERC. It may be important for states and other concerned stakeholders to receive regular updates from the individuals and entities relying on this new humanitarian carve-out. In a similar vein, humanitarian bodies and donors may wish to reflect on how best to reliably and efficiently obtain and communicate such information.
5. To what extent, if at all, will the humanitarian carve-out or, at least, the rationale underlying it influence certain Security Council committees to revise relevant aspects of their respective sanctions-designation criteria?
As an example in this area, at least one such committee has included medical-care-related activities as part of the bases for designating two individuals and two entities on its sanctions list. It might be worth monitoring whether such designation-criteria-related practices are modified to align, at least, with the rationale underlying the carve-out. For example, committees could review their practices to determine whether any humanitarian activities covered by the carve-out have been included in their designation criteria and revise their approaches accordingly.
6. What impact, if any, will the resolution have on the Security Council’s line of so-called legislative counterterrorism resolutions?
In those “legislative” resolutions, the Security Council decided that all states shall take various actions, including to “[c]riminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts.” It may be worth monitoring whether the new humanitarian carve-out entails implications for the interpretation and application of those Council-imposed legislative counterterrorism obligations on states, including as may relate to modifications to national counterterrorism legal and policy frameworks.
7. What information and recommendations will the secretary-general make?
As part of a negotiated compromise, Resolution 2664 contains a request “that the Secretary-General issue a written report on unintended adverse humanitarian consequences of Security Council sanctions measures, including travel ban and arms embargo measures, as well as those measures that are sui generis to particular sanctions regimes, within 9 months of the adoption of” the resolution. The Council also requested that such a report “contain recommendations on ways to minimize and mitigate such unintended adverse consequences including via the promulgation of additional standing exemptions to such measures.” It may be worth keeping a close eye on the secretary-general’s report when it, presumably, is released in the upcoming months.
8. What impact, if any, will practice related to the application of the humanitarian carve-out have in terms of determining the scope of the resolution’s notion of “other activities that support basic human needs”?
So far as we are aware, the formulation “other activities that support basic human needs” is not a legal term of art. A wide approach to the term “basic human needs” might encompass, for example, not only lifesaving aid but also measures of protection, education, and the like. For states and other stakeholders seeking to uphold respect for international law and principled humanitarian action, it may be useful to consider formulating and publicly expressing their views on what that notion entails.
9. To what extent, if at all, will this resolution normatively influence national and regional sanctions regimes?
At the meeting at which Resolution 2664 was adopted, at least a handful of member states asserted that national- and regional-level sanctions regimes have had equal or, perhaps, greater unintended adverse impacts on humanitarian assistance, compared with the sanctions regimes decided by the Security Council. By way of brief background, the U.S. and several other major humanitarian-donor states, including the European Union, have developed and implemented asset freezes and other restrictive measures that do not have a connection to Security Council action. Researchers have documented certain adverse impacts on humanitarian actors, among others, arising in relation to such national and regional sanctions regimes—for example, through the operation of restrictive provisions in donor agreements and extensive vetting requirements. It may be worth monitoring whether the rationale embedded in Resolution 2664’s core obligation is carried over to these other sanctions regimes.
In adopting Resolution 2664 (2022), multiple Security Council members indicated that they had heard the call of the humanitarian community. This call was developed and sustained by over a decade of research, coupled with policy engagement and—perhaps most importantly—advocacy by humanitarian actors and their supporters in dialogue with member states. In seeking to keep this issue on the multilateral agenda, members of the humanitarian community faced numerous challenges from certain member states and counterterrorism officials. For example, in addition to expressing doubt that Security Council sanctions regimes could have any impact on lifesaving humanitarian efforts, those states and officials also questioned the idea that the Council needed to clarify the impact of its resolutions on principled humanitarian action.
The humanitarian community and concerned member states were able to rely on a growing body of legal and empirical research addressing relations between Security Council sanctions measures and restrictive effects on humanitarian action. In addition, in multilateral fora over the course of a decade, key humanitarian donor states worked with U.N. humanitarian agencies and human rights bodies as well as humanitarian nongovernmental organizations to repeatedly raise concerns regarding the “secondary impact” of certain Security Council sanctions measures on humanitarian action.
Of course, it is far too early to tell what the implications of this resolution will be in practice. Nonetheless, from our perspective, the adoption of this new humanitarian carve-out illustrates at least the power of a group of dedicated states, working in close collaboration with U.N. system actors and civil society, to inform and shape the Security Council’s position on a set of thorny legal and policy issues. In these ways, the adoption of Resolution 2664 (2022) demonstrates, we think, how evidence-based, practice-informed, and diplomatically minded research and advocacy can lead to consequential changes, including some of the most seemingly intractable multilateral policy challenges.