United Nations Reform: Heading North or South? by Spencer Zifcak

Author:Spencer Zifcak [Zifcak, Spencer]
Language: eng
Format: epub
ISBN: 9780415851824
Amazon: B002F53LWW
Barnesnoble: B002F53LWW
Goodreads: 19778427
Publisher: Taylor & Francis
Published: 2013-12-12T00:00:00+00:00

Humanitarian intervention in international law

In legal terms, the prima facie position with respect to military interventions undertaken for humanitarian reasons appears to be as follows (see also Chesterman, 2001; Farer, 2003, 53; Franck, 2003, 204; Gray 2004, 31; Wheeler, 2004, 32; Molier, 2006, 37; Triggs, 2006, 598). Pursuant to Article 2 of the Charter:

2(4) All states [are to] refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.

This injunction against the use of force is reinforced by the terms of Article 2 (7), which declares: ‘Nothing in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state.’ The principle of non-intervention, together with that of the sovereign equality of states, is designed to ensure that each state respects the prerogatives and entitlements of every other state.

As noted in the previous chapter, there are in the Charter only two exceptions to the Article 2(4) prohibition. First, Chapter VII of the Charter empowers the Security Council to authorize the use of force in response to threats and breaches of international peace and security. Pursuant to Article 39, therefore, the Security Council may make recommendations as to what measures, including the use of armed force, should be taken to address an identified threat to international peace and security or to any act of aggression. Secondly, in accordance with Article 51, member states of the United Nations may take measures, whether individually or collectively, in pursuit of their inherent right to self-defence should they be subject to armed attack. Such action in self-defence may continue until the Security Council itself has instituted whatever further measures are necessary to maintain international peace and security.

When laid down plainly in this way, it is apparent that the express terms of the Charter do not readily embrace humanitarian intervention. The principle of non-intervention stands steadfastly in its path. The NATO intervention in Kosovo, for example, neither was declared by the Security Council as a threat to international peace and security, nor could it be characterized as an exercise of a right to collective self-defence by NATO’s membership. For that reason, it is generally accepted that, however well intentioned, the bombing of Serbia was, although perhaps legitimate, illegal (Independent International Commission on Kosovo, 2000).

Further, the UN Declaration on Friendly Relations of 1970 states the duty of non-intervention in similar and compelling fashion:

No State or group of states has the right to intervene directly, or indirectly, for any reason whatsoever in the international external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements are in violation of international law.3

Of course, the Charter’s provisions are capable of competing interpretations. These can occupy the full spectrum from the literal to the liberal. International lawyers

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