51122066

Is There a Right to Unilateral Humanitarian Intervention in Public International Law?

This thesis is in partial fulfilment of the Degree of Bachelor of Laws (with Honours)

28th March 2017

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Abstract

The doctrine of humanitarian intervention represents an acute tension between two

fundamental norms of public international law: (i) the protection of the autonomy of nation

states and the safeguarding of their territorial integrity and sovereignty against outside

interference, and (ii) the protection of citizens of a state suffering from extreme human rights

violations. For decades, the relationship between these two principles has been firmly tilted

towards the autonomy of nation-states, with intervention being widely understood as

prohibited by the UN Charters many provisions on non-intervention and the non-use of

force. However, in recent years, several factors may have gone some way in shifting the

balance towards the protection of those involved in humanitarian catastrophes. This paper

aims to conduct an analysis of recent developments in the law on the use of force, particularly

normative changes, to determine whether the doctrine of humanitarian intervention can now

be considered legal. It will proceed in three parts. First, it will explore the prohibition of force

as set down in the UN Charter Article 2(4) and identify when that prohibition can be

overcome, specifically noting the distinction between authorised humanitarian interventions

and unilateral ones. Second, the UN Charter and customary international law will each be

considered in turn to determine whether either of them can confer legality on unilateral

humanitarian intervention. Third, conclusions will be drawn as to the status of the doctrine.

Keywords: humanitarian intervention; unilateral humanitarian intervention; public

international law; the use of force in international law; customary international law
 3

Contents

1. Primary Sources 4

2. Introduction 9

3. Prohibition of Force 17

(i) Pre-Charter Prohibition of Force (17-19)

(ii) Post-Charter Prohibition of Force (19-23)

(iii) Exceptions to the Prohibition of Force (23-29)

(a) Security Council Authorisation

(b) Self-Defence

4. Unilateral Humanitarian Intervention and the UN Charter 29

(i) Not Against Territorial Integrity or Political Independence (29-32)

(ii) Not Inconsistent with the Purposes of the UN (32-36)

5. Unilateral Humanitarian Intervention and Customary International Law 36

(i) Desuetude (38-41)

(ii) Progressive Development (42-53)

(a) Broadening of Human Rights Norm

(b) Restriction of Sovereignty Norm

(iii) Customary Right of Unilateral Humanitarian Intervention (54-59)

(a) State Practice

(b) Opinio Juris

6. Conclusion 59

7. Bibliography 63

8. Appendix 74
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1. Primary Sources

Cases

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v

Uganda) (Judgement) [2005] ICJ Rep 168

Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Opinion) [2004] ICJ Rep 136

Legality of Use of Force (Request for the Indication of Provisional Measures) (Oral

Proceedings) ICJ CR 1999/15

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United

States of America) (Merits) [1986] ICJ Rep 14

The Corfu Channel Case (Merits) [1949] ICJ Rep 4

United States Diplomatic and Consular Staff in Tehran (United States of America v

Iran) (Judgement) [1980] ICJ Rep 42

Treaties

International

Charter of the United Nations 1945 (Adopted 24/06/1945, entered into force

24/08/1945) UNTS XVI

Covenant of the League of Nations 1919 (Adopted 28/03/1919)

 5

General Treaty for the Renunciation of War as an Instrument of National Policy 1928
(Adopted 27/08/1928)

International Covenant on Civil and Political Rights 1966 (Adopted 16/12/1966,

entered into force 03/01/1976)

International Covenant on Economic, Social and Cultural Rights 1966 (Adopted

16/12/1966, entered into force 03/01/1976)

International Convention on the Elimination of All Forms of Discrimination against

Women 1979 (Adopted 18/12/1979, entered into force 03/09/1981)

Optional Protocol to the International Covenant on Civil and Political Rights 1966
(Adopted 16/12/1966, entered into force 23/03/1976)

Statute of the International Court of Justice 1946 (18th April 1946)

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

1984 (Adopted 10/12/1984, entered into force 26/06/1987)

UN Convention of the Rights of the Child 1989 (Adopted 20/11/1989, entered into
force 02/09/1990)

UN Convention on the Prevention and Punishment of Crime of Genocide 1948

(Adopted 09/12/1948, entered into force 12/01/1951)

Vienna Convention on the Law of Treaties 1969 (Adopted 23/05/1969, entered into
force 27/01/1980)
 6

Regional

African Charter of Human and Peoples Rights 1981 (Adopted 27/06/1981, entered
into force 21/10/1986)

American Convention on Human Rights 1969 (Adopted 22/11/1969, entered into

force 18/07/1978)

European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (Adopted 04/11/1950, entered into force 03/09/1953)

United Nations Documents

Security Council

UN Security Council Resolution 1078 (1996) The Great Lakes, S/RES/1078

(09/11/1996)

UN Security Council Resolution 1114 (1997) Albania, S/RES/1114 (19/06/1997)

UN Security Council Resolution 1132 (1997) Sierra Leone, S/RES1132 (08/10/1997)

UN Security Council Resolution 1199 (1998) Kosovo, S/RES/1999 (23/091998)

UN Security Council Resolution 1706 (2006), Sudan, S/RES/1706 (31/08/2006)

UN Security Council Resolution 1814 (2008), Somalia, S/RES/1814 (15/05/2008)

UN Security Council Resolution 1973 (2011) Libya, S/RES/1973 (17/03/2011)

 7

UN Security Council Resolution 678 (1990) Iraq, S/RES/678 (29/11/1990)

UN Security Council Resolution 688 (1991) Iraq, S/RES/688 (05/05/1991)

UN Security Council Resolution 794 (1992) Somalia, S/RES/794 (03/12/1992)

UN Security Council Resolution 929 (1994) Rwanda, S/RES/929 (22/06/1994)

UN Security Council Resolution 940 (1994) Haiti, S/RES/940 (31/07/1994)

General Assembly

UN General Assembly, Declaration on Principles of International Law concerning

Friendly Relations and Co-operation among States in Accordance with the Charter of
the UN A/RES/2625(XXV) (24/08/1970)

UN General Assembly, Definition of Aggression A/RES/3314 (14/12/1974)

UN General Assembly, Universal Declaration of Human Rights A/RES/217(A)

(10/12/1948)

Secretary General

Report of the Secretary General to the UN General Assembly, The Fall of

Srebrenica A/54/549 (15/11/1999)

Report of the Secretary-General to the UN General Assembly, An Agenda for Peace

A/47/227 (17/06/1992)
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Other Primary Sources

UN World Conference on Human Rights, Vienna Declaration and Programme of

Action, UN DOC/CONF.157/24 (Part 1) (25/06/1993)
 9

Devoid of interest to man is nothing that pertains to man.

Hugo Grotius.1

2. Introduction

On the 6th of April 1994, in a small country in East Africa, politically, religiously and

ethnically motivated killings began.2 By the 16th of July, almost one fifth of the population of

Rwanda had been systematically murdered.3 The brutal efficiency of this killing is clear when

one appreciates that, during this period of one hundred days, seven people were butchered in

every minute, of every hour, of every day, thus marking it as the clearest case of genocide

since the Holocaust.4

1
H Grotius, The Law of War and Peace (1625) Book 1(5)(II).
2
J Paul, Despite the Terrors of Typologies: The Importance of Understanding Categories of

Difference and Identity (2015) 17(2) Interventions: International Journal of Postcolonial

Studies 174-195.
3
There is no concrete agreement as to the precise death toll. This can probably be attributed

to the fact that, unlike many preceding genocides, such as the Nazi killings, the Rwandan

authorities made no attempt to record the deaths. The UN puts the number at around 800,000,

while the subsequent RPF Government in Rwanda gave an estimate of just over one million:

Figures taken from Surf Survivors Fund, Rwandan History-Statistics, available online at <

http://survivors-fund.org.uk/resources/rwandan-history/statistics > (last accessed 12/01/17).

4
GH Stanton, Could the Rwandan genocide have been prevented? (2004) 6(2) Journal of

Genocide Research 211-228.

 10

While the Rwandan genocide acts as a sombre chapter in human history, it also served as an

awakening in the moral consciousness of the western world. The notion that developed

countries could sit back and watch a genocide unfold on television and in the print media5

struck many as representing an astonishingly backwards step in the otherwise encouraging

story of progress in international relations since the Second World War. People saw injustice

on an unimaginable scale and wondered how their government could pass it by, to borrow a

biblical saying, on the other side of the road.

The response of the international community to this crisis has been widely decreed as

underwhelming at best.6 The inability of the United Nations (UN) Security Council in

particular to respond to the crisis has attracted much criticism, given its primary

responsibility for the maintenance of international peace and security.7 Even the leader of

the UNs presence in Rwanda during the crisis, Romeo Dallaire, labelled his force, the United

5
See the discussion of the extent of US media coverage in S Livingston and T Eachus,

Rwanda: US Policy and Television Coverage in H Adelman and A Suhrke (eds), The Path

of a Genocide: The Rwanda Crisis from Uganda to Zaire (Transaction Publishers, New

Brunswick, 2000) 209-228.

6
L Melvern, A People Betrayed: The Role of the West in Rwandas Genocide (Zed Books,

London, 2000).
7
Charter of the United Nations 1945 (Adopted 24/06/1945, entered into force 24/08/1945)

UNTS XVI, Article 24(1).

 11

Nations Assistance Mission for Rwanda (UNAMR), a failure.8 Crucially, the UNAMRs

Chapter VI mandate rendered it powerless to intervene militarily.9

Speaking in September 1999, UN Secretary-General Kofi Annan, in his report to the annual

opening meeting of the UN General Assembly, confronted these failures head on. He

described the UNs actions regarding the Rwandan crisis as humanitarian palliatives, and

went on to state that the genocide in Rwanda will define for our generation the consequences

of inaction in the face of mass murder.10

It is perhaps not altogether surprising, then, that five years on from Rwanda, several western

countries, through the auspices of the North Atlantic Treaty Organisation (NATO),

considered it necessary to act militarily in response to widespread concerns that the conflict

in Kosovo, that had been on-going since early 1998, was escalating into an ethnic cleansing

of the Kosovars by the Yugoslav forces of Milosevic.11 On the day the first bombs were

8
R Dallaire, Shake Hands with the Devil (Arrow Books, London, 2003) 6.
9
G Prunnier, The Rwanda Crisis: History of a Genocide (C. Hurst & Co., London, 1999)

261.
10
Report of the Secretary General to the UN General Assembly, The Fall of Srebrenica

A/54/549 (15/11/1999).
11
UN Security Council Resolution 1199 (1998) expressed grave concern at reports

reaching the Secretary General of excessive and indiscriminate violence by Milosevics

forces, UN Security Council Resolution 1199 (1998) Kosovo, S/RES/1999 (23/091998).

 12

dropped on Yugoslavia, NATO Secretary-General Javier Solena stated that it was necessary

to stop further humanitarian catastrophe.12

As was noted above, the lack of effective action in Rwanda has been widely condemned as

unconscionable and immoral. However, the NATO intervention in Kosovo has also been

attacked: many commentators and states claim that it was a flagrant violation of the UN

Charter13 and, as such, was illegal. Thus, these two episodes served in bringing to the fore of

international legal discourse the troubled doctrine of humanitarian intervention and prompted

much searching of soul by students of international law.14

Giving a succinct definition to humanitarian intervention has proved difficult, since it has

never been broadly agreed how widely to read its component terms.15 Without delving into its

ambiguities, it is possible to give a working, if not exhaustive, definition of the doctrine as:

12
NATO Press Release, NATO Secretary General, Dr J Solana, and Supreme Allied

Commander Europe, General W Clark, Transcript (25/03/1999) available online at

<http://www.nato.int/kosovo/press/p990325a.htm> (last accessed 02/03/17).

13
UN Press Release, Security Council Rejects Demand for Cessation of Use of Force

Against Federal Republic of Yugoslavia SC/6659 (26/03/99), available online at

<http://www.un.org/press/en/1999/19990326.sc6659.html> (last accessed 29/02/17).

14
L Henkin, Kosovo and the Law of Humanitarian Intervention (1999) 93(4) American

Journal of International Law 824-828, 824.

15
For example- does a small and temporary deployment of troops into the territory of another

state without the intent to change political structures or territorial boundaries constitute an

intervention? And which human rights does it cover? For discussion, see SD Murphy,
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The threat or use of force by a state, group of states, or international organisation for the

purpose of protecting the nations of the target state from widespread deprivations of

internationally recognised human rights.16

Essentially, the doctrine of humanitarian intervention poses the question: Can we use military

force to prevent humanitarian catastrophes? While this may, at first, seem a relatively

straightforward issue, any attempt to resolve it is fraught with difficulties: In the words of one

international lawyer, [t]he central question is easy to formulate but notoriously difficult to

answer.17

The complexity of the humanitarian intervention question is understandable when it is

appreciated that it represents an acute tension between two fundamental norms of public

international law: (i) the protection of the autonomy of nation states and the safeguarding of

their territorial integrity and sovereignty against outside interference, and (ii) the protection

of citizens of a state suffering from extreme human rights violations. It seems that these two

policies are incompatible, since protecting citizens within a state will necessarily involve

some form of encroachment of the sovereign rights of that state.

Humanitarian Intervention: The UN in an Evolving World Order (University of Pennsylvania

Press, Philadelphia, 1996) 8.

16
Ibid, 11-12.
17
R Goodman, Humanitarian Intervention and Pretexts for War (2006) 100 The American

Journal of International Law 107-141, 107.

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The relationship between these two principles has long been firmly tilted towards the

autonomy of states, with intervention being widely viewed as prohibited by the UN Charters

provisions on the non-use of force and non-intervention. However, in recent years, several

factors may have gone some way in shifting the balance towards the protection of those

involved in humanitarian catastrophes.

The articulation and codification of specific human rights on the regional and international

level18, an increasingly restrictive approach to the sovereign rights of states19, and a number

of instances of relevant state practice, may have shifted the normative environment of

international law, making humanitarian intervention legal in certain circumstances. In the

words of UN Secretary-General Kofi Annan, in his above-mentioned statement to the UN

General Assembly, there is a developing international norm in favour of intervention to

protect civilians from wholesale slaughter.20

18
An early example is the declaration by the UN World Conference on Human Rights in

Vienna 1993 that the universal nature of all human rights embodied in international law was

beyond question: UN World Conference on Human Rights, Vienna Declaration and

Programme of Action, UN DOC/CONF.157/24 (Part 1) (25/06/1993) 1(1).

19
Two examples which will be discussed below are (i) the widening of the doctrine of self-

defence to permit action against non-state actors within the territory of another state, and (ii)

the development of the doctrine of responsibility to protect, which frames a states

sovereignty as entailing a responsibility to protect its citizens.

20
Secretary-Generals report to General Assembly (no. 10).
 15

The Secretary-General goes on, though, to warn that humanitarian intervention will no doubt

continue to pose profound challenges.21 These challenges become clear when one considers

that the humanitarian intervention debate, like so many in international law, revolves around

ones understanding of how international law is constructed, changed and represented. This is

because, unlike its domestic counter-part, international law is not simply the sum of its black-

letter-laws. Rather, international legal rules are to be found in:

[I]nternational conventions (); international custom, as evidence of a general

practice accepted as law; the general principles of law recognised by civilised nations;

judicial decisions and the teachings of highly qualified publicists.22

Thus, the legal status of an international doctrine depends on the approach taken to the

sources of international law. It is necessary, then, to mention the distinction between two

approaches to these sources: legal realism and legal classicism.

Those who argue for the legality of humanitarian intervention can be termed legal realists.

They take an extensive approach to interpreting international law, citing state practice and

evolving international norms to support the view that the prohibition on the use of force is no

longer what it appears to be in the UN Charter. Those that maintain the illegality of

humanitarian intervention are classicists. They follow strict-proceduralism and take a black-

letter-law approach to international law, arguing that humanitarian intervention is a direct

21
Ibid, emphasis added.
22
Statute of the International Court of Justice 1946 (18th April 1946) Article 38(1).
 16

violation of the UN Charter, and, as such, must be illegal. Only after this distinction is

appreciated can the often-conflicting arguments of different international legal scholars

explored throughout this paper be understood.

Despite these difficulties, the shock of the international community following the unanswered

atrocities in Rwanda, the uncertainty as to the legality of the NATO action in Kosovo23, and

the subsequent doubt as to the correct approach to the ongoing humanitarian crisis in Syria24

show that some attempt must be made to solve the problem of humanitarian intervention.

This paper aims to conduct an analysis of the law on the use of force to determine whether

the doctrine of humanitarian intervention can be considered legal. It will proceed in three

parts. First, it will explore the prohibition of force as set down in the UN Charter Article 2(4)

and identify when that prohibition can be overcome, specifically noting the distinction

between authorised humanitarian interventions and unilateral ones. Second, the UN Charter

and customary international law will each be considered in turn to determine whether either

of them can confer legality on unilateral humanitarian intervention. Third, conclusions will

be drawn as to the status of the doctrine.

23
CJ Apperley and I Brownlie, Kosovo Crisis Inquiry: Memorandum on the International

Law Aspects (2000) 49 International and Comparative Law Quarterly 878-905.

24
Violence in Syria is continuing despite international efforts. Government forces, armed

opposition groups, and terrorist organisations are all guilty of carrying out attacks on the

civilian population: see the information provided by the Human Rights Watch, available

online at < https://www.hrw.org/middle-east/n-africa/syria > (last accessed 25/03/17).

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3. Prohibition of Force

(i) Pre-Charter Prohibition of Force

The world has always been plagued with the scourge of war, with states frequently resorting

to force in the pursuit of their political and economic ideals.25 For almost as long, war was

considered as a legitimate instrument of self-help for states seeking redress in their relations

with other states. Grotius- often considered the father of international law- famously

suggested three legitimate uses of force: use of force in defence; use of force in recovery of

property; and use of force to punish.26 However, without any international organ for the

enforcement of legitimate war, states were prolific in abusing Grotius Just War theory. As

Oppenheim explains,

Such was the authority of this notion of war as an arm of the law that [when] war was

resorted to in order to increase the power of a state at the expense of others, it was

described by the states in question as undertaken for the defence of a legal right.27

25
R Higgins, Problems and Processes: International Law and How We Use It (Oxford

University Press, Oxford, 1994) 238.

26
Grotius (no. 1) Book 2 (1) (II).
27
L Oppenheim, International Law: A Treatise 2 (Longmans, Green and Co, London, 1952)

177.
 18

This approach was supported by the rise of positivism28 and the establishment of Westphalian

sovereignty29, which each contributed to the idea that states were the sole arbiters of the

legality of their actions.

In the aftermath of the First World War, the international community felt the need to redefine

its approach to war. Thus, the League of Nations (the League) was created in 1919 with a

view to rebuilding international relations to ensure that such widespread aggression would

not re-occur. Under the subsequently adopted Covenant of the League of Nations (the

Covenant)30, member states were obliged to submit disputes to the processes of arbitration

and enquiry available through the League31, failing which they would be ipso facto deemed

to have committed an act of war against all other members of the League.32

Crucially, the Covenant did not purport to revoke the sovereign right of states to resort to

war, it merely subjected this right to some limitations. Furthermore, the use of the term war

by the Covenant severely restricted its scope with other, lesser, uses of force escaping its

provisions.

28
The theory that laws derive their legality from the fact that they have been enacted by the

proper authority.
29
This doctrine is named after the Peace of Westphalia, signed in 1648, which sought to end

European conflicts by establishing a balance of power between the major continental powers.

It is widely regarded as the origin of the modern system of nation-state sovereignty.

30
Covenant of the League of Nations 1919 (Adopted 28/03/1919).
31
Ibid, Articles 12, 13 and 15.
32
Ibid, Article 16.
 19

These failures led to a second attempt at the legal regulation of war in 1928. The General

Treaty for the Renunciation of War as an Instrument of National Policy33, more conveniently

known as the Kellogg-Briand Pact34, declared that parties to the treaty condemn recourse to

war and agree to renounce it as an instrument of national policy in their relations with one

another.35

Like its predecessor, the Kellogg-Briand Pact limited itself only to war, thus, both the

Covenant and the Kellogg-Briand Pact fell short of preventing recourse to force, and

aggression continued to be an unprohibited instrument of national policy36, culminating in

the outbreak of the Second World War. The shocking scale of this conflict led to the adoption

of the Charter of the United Nations (UN Charter or the Charter), which established a precise

framework for the regulation of the use of force by members of the international community.

(ii) Post-Charter Prohibition of Force

33
General Treaty for the Renunciation of War as an Instrument of National Policy 1928

(Adopted 27/08/1928).
34
Named after the French and US Foreign Secretaries who were instrumental in its adoption.
35
General Treaty for the Renunciation of War (no. 35) Article 1.
36
M Kanade, Article 2(4) of the UN Charter: Alive and Well, available online at <

http://www.monitor.upeace.org/archive.cfm?id_article=632#_ftnref14 > (last accessed

21/02/17).
 20

The post-Charter rules of international law on the use of force can be stated with relative

ease.37 According to Article 1(1) of the Charter, the maintenance of international peace and

security is the primary purpose of the UN and requires:

Prevention and removal of threats to the peace, () the suppression of acts of

aggression or other breaches of the peace, () and, in conformity with the principles

of justice and international law, the adjustment or settlement of international disputes

or situations which might lead to a breach of the peace.

In pursuit of this purpose, Article 2(3) of the Charter provides, [a]ll members shall settle

their international disputes by peaceful means in such a manner that international peace and

security, and justice, are not endangered. It then goes on in Article 2(4) to specifically

prohibit force:

All members shall refrain in their international relations from the threat or use of

force against the territorial integrity or political independence of any state, or in any

other manner inconsistent with the Purposes of the United Nations.38

Furthermore, the Charter specifically acknowledges a norm of non-intervention in Article

2(7). This is intimately linked to the post-Charter prohibition of force, as is made clear by the

International Court of Justice (ICJ) in Nicaragua v United States of America:

37
M Wood, International Law and the Use of Force: What Happens in Practice (2013) 53

Indian Journal of International Law 345-67, 351.

38
Emphasis added.
 21

acts which breach the principle of non-intervention will also, if they involve the use

of force, constitute a breach of the principle of non-use of force in international

relations.39

Crucially, the UN Charter also established an international organ with the power to resolve

disputes and maintain international peace: The Security Council.40 Under Article 25, the

member states are bound to accept and carry out the decisions of the Security Council in

accordance with the present Charter.

By prohibiting force, or even the threat of force, the UN Charter transcended the previous

efforts to curb international aggression. Indeed, addressing the shortfalls of the Covenant and

the Kellogg-Briand Pact was one of the principal motivations of the drafters of the Charter,

and the ICJ has stated that it considers the prohibition of force contained in Article 2(4) to be

the cornerstone of the UN Charter.41

Furthermore, it has been confirmed by the ICJ that the prohibition of the use of force exists

not only by virtue of Article 2(4) of the UN Charter, but can also be found in customary

39
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States

of America) (Merits) [1986] ICJ Rep 14, 109-10.

40
The UN Charter (no. 7) Chapter V.
41
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v

Uganda) (Judgement) [2005] ICJ Rep 168, 223.

 22

international law: There can be no doubt that () the use of force () raised in these

proceedings (is) regulated by both customary international law and by the UN Charter.42

It must also be noted that the prohibition of the use of force is almost universally regarded as

enjoying the status of jus cogens: a norm of international law with peremptory character from

which there can be no derogation except by a subsequent norm of the same character.43

Although the Vienna Convention on the Law of Treaties does not specify which norms of

international law should be considered peremptory in nature, Yoram Dinstein points out that

the International Law Commission has, on two separate occasions, identified the prohibition

of the use of force as a conspicuous example of jus cogens.44 Similarly, the ICJ in

42
Nicaragua (no. 39) 27.
43
Vienna Convention on the Law of Treaties 1969 (Adopted 23/05/1969, entered into force

27/01/1980) Articles 53 and 64.

44
Firstly in its commentary on the draft of the Vienna Convention: Report of the

International Law Commission, 18th Session, Yearbook of the International Law Commission

Vol II (1966) 247 (quoted) available online at <

http://legal.un.org/ilc/publications/yearbooks/english/ilc_1966_v2.pdf > (last accessed

21/02/17); and secondly, when concluding its work on State Responsibility: Report of the

International Law Commission, 53rd Session, Draft Articles for the Responsibility of States

for Internationally Wrongful Acts Yearbook of the International Law Commission Vol II

(2001) 283, available online at <

http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf > (last accessed

21/02/17) quoted in Y Dinstein, War, Aggression and Self-Defence (Cambridge University

Press, 5th edn, 2011) 105.

 23

Nicaragua underscored that the principle on the non-use of force belongs to the realm of jus

cogens.45

(iii) Recognised Exceptions to the Prohibition of Force

From the above, it may seem that the prohibition of force established by the UN Charter is

absolute, making it very difficult to establish any kind of legality for the doctrine of

humanitarian intervention. However, it is important to appreciate that Article 2(4) is subject

to two exceptions. These are provided for by Chapter VII of the Charter which outlines when

a use of force will not be caught by the prohibition: when such an act is authorised by the UN

Security Council, or when a state is acting in self-defence. Each of these exceptions will now

be briefly explained, and it will be suggested that they can each provide a means of showing

that the traditional international norms of non-intervention and state sovereignty have been

weakened over the last two decades.

a. Security Council Authorisation

Article 42 of the UN Charter allows the UN Security Council to use force to maintain or

restore international peace and security. Since the UN does not have any direct control of

military forces, it does so through Security Council Resolutions that authorise states to use

45
Nicaragua (no. 39) President Singh at 153. See also the separate opinion of Judge Sette-

Camara at 199.
 24

force on its behalf.46 Crucially, this power can only be exercised if the Security Council has

determined, under Article 39, the existence of any threat to the peace, breach of the peace, or

act of aggression.

The relevant circumstances for an Article 39 determination are subject to much debate.

Particular attention has been given to the widening interpretation of the notion of threat to

the peace, which appears to have been used by the Security Council over the last two

decades as a blanket term allowing it to authorise force in a wide range of situations that

would not conventionally have been understood as having an international character.47 It

has used it to cover civil wars, terrorism, and, of particular relevance for the purposes of this

paper, violations of human rights within a state.

The first Resolution to address human rights concerns was the post-Gulf War 688 which was

intended to protect Kurdish Iraqis from continued repression at the hands of their own

government.48 This has been described as the first time in its history that the Security Council

stated a clear and explicit linkage between human rights violations materially within a state

and a threat to international security.49 However, it has been pointed out that Resolution 688

46
N Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security

Council to Authorise the Use of Force by Coalitions of the Able and Willing (2000) 11(3)

European Journal of International Law 541-68, 542.

47
Ibid.
48
UN Security Council Resolution 688 (1991) Iraq, S/RES/688 (05/05/1991).
49
KK Pease and DP Forsythe, Human Rights, Humanitarian Intervention, and World

Politics (1993) 15(2) Human Rights Quarterly 290-314, 303.

 25

specifically stresses the transboundary effects of the Iraq situation by stating that Iraqs

actions had led to a massive flow of refugees towards and across international frontiers50,

and so should not be considered a precedent for Security Council Resolutions for purely

internal human rights violations. Despite this, Resolution 688 proved ground-breaking and

the Security Council built on it by continuing to characterise severe human rights

deprivations as threats to international peace and security.51

In Resolution 794, the Council acted under Chapter VII to authorise the use of force to

restore peace, stability and law and order in Somalia.52 In this instance, no mention was

made of existing or potential transboundary effects- such as refugee flows. Instead, it focused

on the magnitude of the human rights tragedy caused by the conflict in Somalia which it

determined constitute[d] a threat to international peace and security.53 In a more recent

example, the Security Council used Resolution 1973 to protect civilians and civilian

populated areas from the civil war within Libya.54

50
Security Council Resolution 688 (1991) (no. 48).
51
RB Lillich, The Role of the UN Security Council in Protecting Human Rights in Crisis

Situations: UN Humanitarian Intervention in the Post-Cold War World (1995) 3 Tulane

Journal of International and Comparative Law 1-17, 7.

52
UN Security Council Resolution 794 (1992) Somalia, S/RES/794 (03/12/1992). See also

SM Crawford, U.N. Hunanitarian Intervention in Somalia (1993) 3 Transnational Law and

Contemporary Problems 273-329, 291.

53
Ibid.
54
UN Security Council Resolution 1973 (2011) Libya, S/RES/1973 (17/03/2011).
 26

In this way, the Security Council has made clear that it considers it intra vires to authorise

force to end humanitarian crises. One commentator states that the above Resolutions, and

numerous others, show that the Council has committed itself to the notion that internal

disorders producing severe and widespread human rights deprivations justify forceful action

under the threat to the peace rationale.55 Thus, through its powers for the maintenance of

international peace and security under Chapter VII of the UN Charter, the Security Council

has explicitly recognised and authorised the doctrine of humanitarian intervention. One

instance, in particular, of Security Council action for humanitarian purposes neatly

encapsulates this methodology: Haiti in 1994.

The situation in Haiti, after the military ousting of its democratically elected President in

1991, reached breaking point in 1994. There were ongoing cries for a humanitarian

intervention to bring to an end the massive suffering of the Haitian people.56 In response to

the crisis, the UN Security Council adopted Resolution 940.57 It expressed grave concern

with the deterioration of the humanitarian situation in Haiti, determined that the situation

in Haiti continues to constitute a threat to peace and security in the region, and invoked

Article 42 of the Charter to authorise Member States to form a force () and [to] use all

necessary means to facilitate the departure from Haiti of the military leadership.58 Although

Resolution 940 does contain the phrase the desperate plight of the Haitian refugees, the

55
RB Lillich (no. 51) 8.
56
Rotberg, What Now in Haiti? Boston Globe (29/12/1993) 4-6, cited in RB Lillich (no.

51) 9.
57
UN Security Council Resolution 940 (1994) Haiti, S/RES/940 (31/07/1994).
58
Ibid.
 27

predominant focus is on the systemic violations of civil liberties within the state. Thus, it

can be taken as representing a general precedent for UN-authorised humanitarian

intervention.59

Therefore, humanitarian intervention, if authorised by the UN Security Council, is a perfectly

legal use of force. The question that must be resolved, then, is whether uses of humanitarian

force outside the auspices of the UN can be legal. In other words, is there a right to unilateral

humanitarian intervention by a state, group of states, or regional organisation.60

It will be argued below (5(ii)(a)) that the acceptance of humanitarian catastrophes as threats

to international peace and security, as well as a willingness to intervene in such

circumstances, is significant in establishing the primacy of humanitarian concerns over state

sovereignty. In other words, the legality of UN-authorised interventions helps to confer

normative authority for unilateral ones.

b. Self-Defence

Article 51 of the UN Charter states that nothing in the present Charter shall impair the

inherent right of individual or collective self-defence. It is widely accepted that this

provision was intended to affirm the continuation of the long-standing customary right of

self-defence within the new UN Charter regime. The scope of this exception to the

59
RB Lillich (no. 51) 10.
60
The remainder of this paper will use the terms unilateral humanitarian intervention and

unauthorised humanitarian intervention interchangeably.

 28

prohibition of force has proved a highly contentious issue. Indeed, it was stated in the 1950s:

There are few more important questions in international law than the proper limits of the

right to self-defence.61 Essentially, the issue revolves around when and how self-defence can

be used. This already tricky question has become more and more controversial as the concept

of self-defence has evolved in the face of the rise of global terrorism and modern warfare. Its

rules are being challenged in light of these new, contemporary threats.62

Like the recognition of humanitarian intervention by the Security Council, the changes to the

law of self-defence have an impact on the legality of unilateral humanitarian intervention. It

will be explored below (5(ii)(b)) the extent to which the broadening of the customary right to

self-defence, and the necessary narrowing of the prohibition of force that it implies, has

helped to change the normative environment of international law. Specifically, it will be

discussed whether developments in the law of self-defence can be considered to have

diminished the norm of state sovereignty.

4. Unilateral Humanitarian Intervention and the UN Charter

There are some international scholars who argue that, by taking a restrictive approach to

Article 2(4), unilateral humanitarian intervention can be viewed as falling outside of the

61
CMH Waldock, The Regulation of the Use of Force by Individual States in International

Law 81 (Brill/Leiden Publishers, Boston, 1952) 461.

62
E Wilmhurst, Principles of International Law on the Use of Force by States in Self-

Defence Chatham House (2005) 12, available online at <

https://www.chathamhouse.org/publications/papers/view/108106 > (last accessed 02/03/17).

 29

scope of the prohibition of force. Therefore, before the developments in customary

international law alluded to above are explored, it must first be determined whether unilateral

humanitarian intervention can be fitted within the existing UN Charter regime. Those who

seek to show that unilateral humanitarian intervention falls out-with Article 2(4) advance two

main arguments that both rely on the phraseology of Article 2(4).

(i) Not Against Territorial Integrity and Political Independence

Firstly, it is suggested that the inclusion of the term against the territorial integrity or

political independence of any state acts to qualify Article 2(4), resulting in only aggressive,

territorially or politically motivated uses of force being caught by the prohibition. Julius

Stone explains, Article 2(4) does not forbid the threat or use of force simpliciter, it forbids it

only when directed against the territorial integrity or political independence of any State.63

Similarly, Fernando Teson writes that it is a distortion to argue that a genuine humanitarian

intervention is prohibited by Article 2(4).64 This is a line of argument that was pursued by

Belgium, in their defence of their involvement in the NATO action in Kosovo. They argued:

63
J Stone, Aggression and World Order: A Critique of United Nations Theories of

Aggression (Stevens, London, 1958) 95.

64
FR Teson, Humanitarian Intervention: An Inquiry into Law and Morality (Transnational

Publishing, 1988) 151.

 30

NATOs intervention is to rescue a people in peril. Belgium takes the view that this is an

armed humanitarian intervention, compatible with 2(4) of the Charter, which covers only

intervention against the territorial integrity or political independence of a State.65

It has been pointed out by some writers, though, that humanitarian interventions are, strictly

speaking, uses of force against the territorial integrity or political independence of a state.

For example, Oscar Schnachter frankly states that the idea that wars waged in a good cause,

such as democracy or human rights, would not involve a violation of territorial integrity or

political independence demands an Orwellian construct of those terms.66 This argument is

based on the fact that any humanitarian force will necessarily violate the territory of the state

in which it is intervening. Yet it can be argued that it should not be assumed that territory

and territorial integrity mean the same thing: Anthony DAmato makes a distinction

between the two, drawing authority from the treatment of the phrase territorial integrity in

international agreements prior to the UN Charter.67 Thus, he argues that a missile strike

65
Legality of Use of Force (Request for the Indication of Provisional Measures) (Oral

Proceedings) ICJ CR 1999/15, 11-12.

66
O Schnachter, The Legality of Pro-Democratic Invasion (1984) 78 The American Journal

of International Law 645-50, 649.

67
A DAmato, The Meaning of Article 2(4) in the UN Charter (2013) Northwestern Public

Law Research Paper 13-30, revised from Chapter 3 in A DAmato, International Law:

Process and Prospect (Springer Publishing, 2nd edn, 1995).

 31

against the territory of a state, for self-defence purposes68 or on humanitarian grounds69, does

not necessarily violate Article 2(4) since against the territorial integrity could be understood

as prohibiting force that seeks to change the existing territorial borders of a state. In this way,

a narrow reading of Article 2(4) can allow for unilateral humanitarian interventions.

However, such a reading of the prohibition does not seem appropriate considering the wider

context in which Article 2(4) is found. As noted above, it is complemented by Articles 2(3)

and (7) which provide that member states can only settle disputes by peaceful means, and that

the UN cannot intervene in matters that are within the domestic jurisdiction of states. This,

along with the overall aim of the UN Charter to save succeeding generations from the

scourge of war70, suggests that the prohibition should be interpreted as widely as possible,

rather than restrictively.

Thus, most international lawyers believe that the drafters of the Charter clearly intended the

phrase territorial integrity or political independence of any state to reinforce, rather than

68
For example, the Israeli air strike on the Iraqi nuclear reactor in 1981. See A DAmato,

Israels Air Strike Against the Osiraq Reactor: A Retrospective (1996) 10 Temple

International and Comparative Law Journal 259-64.

69
For example, the USAs threatened ballistic missile attack upon Syria in 2013 in retaliation

for the Syrian governments use of chemical weapons against its people.
70
The UN Charter (no. 7) Preamble.
 32

restrict, the ban on the use of force in international relations.71 Furthermore, Ian Brownlie

and CJ Apperley argue that any suggestion that the phrase may have a qualifying effect

amounts to an admission that Article 2(4)s meaning is subject to ambiguity. In such

circumstance, recourse may be had to the travaux preparatories72, which reveal a meaning

contrary to that asserted.73 Indeed, when one looks to the travaux preparatories, it is clear

that the words territorial integrity or political independence were inserted as a specific

undertaking by all members to refrain in their international relations from force or the threat

of force against the territorial integrity or political independence of another state74 after

concerns were expressed on the absence of a such a specific guarantee in earlier drafts.

(ii) Not Inconsistent with the Purposes of the UN

The second argument that unilateral humanitarian intervention can be considered legal under

the UN Charter focuses on the phrase or in any other manner inconsistent with the purposes

71
JL Holzgrefe, The Humanitarian Intervention Debate in JL Holzgrefe and RO Keohane

(eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge

University Press, 2003) 15-52, 38.

72
The official records of the drafting of the UN Charter.
73
CJ Apperley and I Brownlie (no. 23) 885, confirming the usefulness of Article 32 of the

Vienna Convention on the Law of Treaties 1969 (no. 43) on the use of supplementary means

of interpretation.
74
RB Russel, A History of the UN Charter: The Role of the United States, 1940-1945

(Brookings Institution, Washington DC, 1958) Appendix.

 33

of the UN.75 The relevant purposes can be found in the Preamble and Article 1 of the

Charter, and include an undertaking to preserve fundamental human rights76 and to

encourage respect for human rights for all, without distinction as to race, sex, language, or

religion.77 Additionally, Article 55 of the UN Charter provides that the UN shall promote

universal respect for, and observance of, human rights and fundamental freedoms for all, and

Article 56 confirms this as a duty on the UN member states in requiring that [a]ll members

shall pledge themselves to take joint and separate action in co-operation with the

Organisation for the achievement of the purposes set forth in Article 55.78 Thus, according to

W M Reisman, unauthorised humanitarian interventions may be justified on the basis that

they seek to uphold one of the UNs chief purposes: the protection of human rights.79

Reismans approach, though, overlooks the fact that the or in the phrase or in any other

manner inconsistent with the purposes of the UN is intended to show that a use of force that

violates either the territorial integrity or political independence of a state or that is

inconsistent with the purposes of the UN will be in violation of Article 2(4). Therefore, the

suggestion that humanitarian interventions are legal because they are in line with the

principles of the UN fails on the basis that Article 2(4) was intended to be an absolute

75
The UN Charter (no. 7) Article 2(4).
76
Ibid, Preamble.
77
Ibid, Article 1(3).
78
Emphasis added.
79
WM Reisman, Criteria for the Lawful Use of Force in International Law (1985) 10 Yale

Journal of International Law 279-85, 85.

 34

prohibition of all force. As Brownlie states, the phrase or in any other manner was

designed to ensure that there should be no loop-holes.80

It must also be noted that the purposes of the UN in Article 1 also contain commitments as to

the collective and co-operative nature of actions in pursuit of the purposes and make clear

the UN is [t]o be a centre for harmonizing the actions of nations in the attainment of these

common ends.81

Moreover, there is the matter of the UN Charters guarantee of non-intervention.82 This

principle involves the right of every sovereign state to conduct its affairs without outside

interference and is recognised as an essential foundation of international law.83 Since the

drafting of the UN Charter, there have been numerous authoritative assertions by the

international community that the desirability of an intervention cannot exempt it from the

principle of non-intervention. For example, UN General Assembly Resolution 2625 stated

that:

No state () has the right to intervene, directly or indirectly, for any reason whatever, in

the internal or external affairs of any other state. Every state has an inalienable right to

80
I Brownlie, International Law and the Use of Force by States (Oxford University Press,

1963) 268.
81
The UN Charter (no. 7) Article 1(4), emphasis added.
82
Ibid, Article 2(7).
83
The Corfu Channel Case (Merits) [1949] ICJ Rep 4, 35.
 35

choose its political, economic, social, and cultural systems, without interference in any

form by another state.84

Similarly, in its 1974 Definition of Aggression, the General Assembly affirmed that [N]o

consideration of whatever nature, whether political, economic, military, or otherwise, may

serve as a justification for aggression.85

Since it has been determined that acts which breach the principle of non-intervention will

also, if they involve the use of force, constitute a breach of the principle of non-use of

force86 it is impossible to contend that humanitarian interventions- which will always breach

the norm of non-intervention- will not breach Article 2(4).

In conclusion, then, arguments that unauthorised, unilateral, humanitarian intervention can be

legal per the text of the UN Charter requires a highly selective reading of the relevant

Articles. While these arguments do present a somewhat persuasive case, it must be accepted

that, on balance, Article 2(4) should be viewed as a wide and absolute prohibition that bans

all force except that conducted on the basis of the exceptions explicitly recognised in the UN

Charter under Articles 39/42 and Article 51. In the succinct words of Brownlie and Apperley:

84
UN General Assembly, Declaration on Principles of International Law concerning

Friendly Relations and Co-operation among States in Accordance with the Charter of the

UN A/RES/2625(XXV) (24/08/1970).
85
UN General Assembly, Definition of Aggression A/RES/3314 (14/12/1974) Article 5.
86
Nicaragua (no. 39), 109-10.
 36

There is no sufficient evidence of the existence of a legal right of states, whether acting

individually or jointly, to use force for humanitarian purposes. The alleged right is not

compatible with the UN Charter.87

5. Unilateral Humanitarian Intervention and Customary International Law

The above conclusion that unauthorised humanitarian interventions are illegal is the end

of the matter for many, if not most, international lawyers: the plain wording of the UN

Charter makes clear that there can be no legal uses of force except those authorised by the

Security Council or those justified on the grounds of self-defence.

However, treaty law is not the only source of international law. Customary law88 is also

significant in establishing the status of an international legal doctrine. It will now be asked

whether customary international law can provide an alternative legal justification for the

doctrine of unilateral humanitarian intervention.

This line of argument rests upon the assertion that, as well as the prohibition in Article 2(4)

of the UN Charter, there exists a body of customary international law on the use of force. As

has been noted previously in this paper, this assertion is beyond much doubt. For example,

87
CJ Apperley and I Brownlie (no. 23), 886.
88
Defined for the purposes of this paper as the practice of states accompanied by the

necessary opinio juris, per Article 38(1)(b) of the ICJ Statute (no.22) although it must be

noted that this definition has been challenged, ridiculed, and generally argued over: H

Thirlway, The Sources of International Law (Oxford University Publishing, 2014) 7.

 37

the ICJ, in Nicaragua, acknowledged the existence of a customary prohibition of force

correlative to that within the Charter.89 What is less certain, though, is the extent to which

customary law is capable of modifying the original prohibition of force found in the UN

Charter. It is here that the differing theoretical approaches outlined in the introduction have

the greatest impact.

Advocates of the classicist approach accord great respect to the original intention of the

drafters of the UN Charter90, leading them to conclude that the Charter can only be changed

in accordance with its proscribed procedures.91 Legal realists, on the other hand, believe that

original intention does not govern at any time because it lacks legitimate authority.92

Instead, the legal status of a rule must turn on the international communitys current

attitudes.93

With a view to establishing a customary right of unilateral humanitarian intervention, this

section will proceed in two parts. First, consideration will be given to claims that Article 2(4)

has lost its legal validity because of its frequent violation by states- the desuetude argument.

Second, it will look to normative developments in international law over the last two decades

89
Nicaragua (no. 39) 27.
90
TJ Farer, An Inquiry into the Legitimacy of Humanitarian Intervention in LF Damrosch

and DJ Scheffer (eds), Law and Force in the New International Order (Westview Press,

Boulder, 1991) 186.

91
The UN Charter (no. 7) Articles 108 and 109.
92
TJ Farer (no. 90).
93
JL Holzgrefe (no. 71) 40.
 38

and suggest that they have led to the emergence of a limited right of unilateral humanitarian

intervention- the progressive development argument.

(i) Desuetude

The desuetude94 argument is advanced chiefly by legal theorist Thomas Franck. It shows that

unilateral humanitarian intervention can be considered legal because there is no longer a

prohibition of force in international law. According to Franck, Article 2(4) of the UN Charter

has lost its legal authority as a result of being repeatedly violated by states. He argues that

states have:

[V]iolated it, ignored it, run roughshod over it, and explained it away they have

succumbed to the temptation to settle a score, to end a dispute or to pursue their national

interest through the use of force.95

While Franck reached this conclusion only two decades after the drafting of the UN Charter,

the argument was picked up in 2002 by Michael Glennon who examined the more recent

history of state practice and the use of force, ultimately echoing Francks bleak conclusions:

the upshot is that the Charters use of force regime has all but collapsed.96

94
From the French word meaning in a state of disuse.
95
T Franck, Who Killed Article 2(4)? (1970) 64(5) The American Journal of International

Law 809-837, 810.

96
M Glennon, The Fog of Law: Self-defence, Inherence and Incoherence in Article 2(4) of

the UN Charter (2002) 25 Harvard Journal of Law and Public Policy 539-58, 539.
 39

The theoretical underpinnings of this argument are that rules of international law can lose

their force if they are no longer observed by the international community. This is so because

international law is fundamentally based on the consent of states, with consent being

necessary for the obligatory nature of international law.97 Thus, if it can be shown that there

is evidence of states consistently acting contrary to a rule of international law, they cannot be

regarded as consenting to it, consequently robbing that rule of its legal authority.

In this way, Franck and Glennon, inter alia98, used over two hundred instances of military

conflict between the end of World War II99 and the 1990s to declare the demise of Article

2(4).100 They cite conflicts such as the Lebanon Crisis of 1958 and the Vietnam War, as well

97
This is the position of almost all international legal scholars. Some examples are: A Aust,

Handbook of International Law (Cambridge University Press, 2005) 4 [International law] is

based on the consent, express or implied, of states.; I Brownlie, Principles of Public

International Law (Oxford University Press, 6th edn, 1995) 4 the general consent of states

creates general rule of application.; JL Brierly, The Law of Nations: An Introduction to the

Modern Law of Peace ( Oxford University Press, 1963) 51 states obey international law

because they have consented to it.

98
See J Combacua, The Exception of Self-Defence in UN Practice in A Cassese (ed), The

Current Legal Regulation of the Use of Force (1986) 32; and AC Arend, Legal Rules and

International Society (1999) 75.

99
T Franck, Some Observations on the ICJs Procedural and Substantive Innovations

(1987) 81 The American Journal of International Law 116-121, 119.

100
T Franck, Who Killed Article 2(4)? (no. 95) 809.
 40

as the increasing authoritarianism of regional systems dominated by a super-Power.101 In

2003, following the invasion of Iraq, Franck revisited his argument, concluding that Article

2(4) has died again, and, this time, perhaps for good.102

While the desuetude argument has not been specifically applied to the case for unilateral

humanitarian intervention, it is easy to see how it could confer legality to the doctrine. Put

simply, if state practice has caused forms of wars to become unlimited then unilateral

humanitarian intervention is perfectly legal on the grounds that international law has ceased

to regulate it.103

While this may seem a powerful argument, it must fail on the basis that it ignores a vast

universe of state practice that contradicts it.104 While it is certainly easy to cite numerous

instances of war and the use of force throughout the latter half of the twentieth century, it

must be accepted that the vast majority of international relations is conducted in accordance

with the prohibition of force in Article 2(4). Thus, in his aptly titled rebuttal to Francks

arguments, Lewis Henkin points out that the desuetude diagnosis judges the vitality of the

101
Ibid 835.
102
T Franck, What Happens Now? The UN After Iraq (2003) 97 The American Journal of

International Law 607-20, 610.

103
I Hurd, Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World

(2011) 25(3) Ethics and International Affairs 293-313, 303.

104
Ibid.
 41

law by looking only at its failures.105 He explains that the purpose of Article 2(4) was to

establish a norm of national behaviour and to deter violations of that norm. In this way,

violations of Article 2(4) do not necessarily entail its demise.

It can further be argued that in almost all the conflicts cited by Franck and Glennon, the states

responsible proffered some form of legal justification for them, usually on the grounds of

collective self-defence. This shows that states clearly do not believe that they are free to use

force, as the desuetude argument would suggest. Likewise, that no government, and no

official of government, has been prepared or has wished to pronounce it dead shows that the

prohibition of force in Article 2(4) is alive and well.106

However, while he stops short of proclaiming an indictment of legicide, Henkin does admit

that the disposition of nations to take the law into their own hands and distort and mangle it

to their own purpose may amount to charges of aggravated assault on the prohibition of

force, materially affecting its condition.107 It is the extent that these assaults, along with the

growth of new norms, have changed the prohibition of force to allow for unilateral

humanitarian interventions that will be considered next.

(ii) Progressive Development

105
L Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated (1971) 65

The American Journal of International Law 544-48, 544.

106
Ibid 547.
107
Ibid 544.
 42

This is similar to the desuetude argument in that it also uses the practice of states, often in

direct contradiction to Article 2(4), to show that the law on the use of force has changed.

However, in terms of effect, it is startlingly different. While the desuetude argument would

take us back to a pre-1945 state of affairs, in which the use of force can be considered legal,

progressive development maintains the prohibition of force and Article 2(4), arguing that

unilateral humanitarian intervention can be considered an exception to the rule.

As noted in the introduction, unilateral humanitarian intervention represents a tension

between two fundamental norms of international law: the autonomy of states and the

protection of abused citizens. The UN Charter represents a time in which the relationship

between these two principles has been firmly tilted towards the autonomy of nation states,

with intervention being widely understood as prohibited by the Charters prohibition of force.

This conclusion is supported by the practice of states in the years immediately proceeding

1945. The international community avoided intervening in the internal affairs of states,

despite evidence of human rights violations. For example, the cases of Indonesia, South

Sudan, Burundi, Kashmir, Naga and South Africa were all instances of humanitarian

catastrophe, but states did not attempt any kind of intervention.108

However, in recent years, several factors may have gone some way in shifting the balance

towards the protection of those involved in humanitarian catastrophes. This shift will be

analysed from two perspectives. Firstly, the growth of respect for human rights and the

broadening of an international norm for their protection will be explored. Secondly, it will be

108
I Brownlie, Humanitarian Intervention in JN Moore (ed), Law and Civil War in the

Modern World (Johns Hopkins University Press, 1974) 224.

 43

argued that this, along with developments in the law of self-defence, has resulted in a

diminishment of state sovereignty. It will then be asked whether or not these changes have

led to a customary right of unilateral humanitarian intervention.

(a) Broadening of Human Rights Norm

The UN Charter recognises the international nature of human rights. In the Preamble, faith is

affirmed in fundamental human rights and the worth of the human person, in the equal rights

of men and woman, and of nations large and small. Also in the Preamble, a determination to

promote social progress and better standards of life in larger freedom is expressed.

Furthermore, one of the four purposes of the UN is, according to Article 1(3):

To achieve international co-operation in solving international problems of an

economic, social, cultural, or humanitarian character, and in promoting and

encouraging respect for human rights and for fundamental freedoms for all without

distinction as to race, sex, language or religion.

As well as the above provisions, the Charter refers to human rights in Articles 13(1)(b), 55,

55(c), 62(2), 68, and 76(c). Particular significance can be taken from reading Articles 55 and

55(c) in conjunction with one another. They impart a legal duty on member states to take

joint and separate action to maintain respect for human rights.

However, the references to human rights throughout the UN Charter are rather terse: No

definition is given. It was thus left to the international community to give an authoritative

interpretation of what the founders of the UN meant by human rights and fundamental
 44

freedoms. This was given in the UN General Assembly in 1948 in the Universal Declaration

of Human Rights.109 The Universal Declaration recognised a number of civil, cultural,

economic, political and social rights. While a declaration of the General Assembly does not

have legally binding power, the Universal Declaration has been treated as authoritative

customary international law by international scholars, and was applied as such by the ICJ in

1980.110

Building on the work of the General Assembly, two international treaties, the International

Covenant on Civil and Political Rights 1966 and the International Covenant on Economic,

Social and Cultural Rights 1966, bind the international community to set standards of human

rights. In addition, there are several other specific treaties on the regional and international

level that deal with human rights.111

109
UN General Assembly, Universal Declaration of Human Rights A/RES/217(A)

(10/12/1948).
110
United States Diplomatic and Consular Staff in Tehran (United States of America v Iran)

(Judgement) [1980] ICJ Rep 42.

111
The texts of a considerable number of these conventions can be found in I Brownlie, Basic

Documents on Human Rights (Oxford University Press, 3rd edn, 1992). They include, inter

alia: European Convention for the Protection of Human Rights and Fundamental Freedoms

1950 (Adopted 04/11/1950, entered into force 03/09/1953); Optional Protocol to the

International Covenant on Civil and Political Rights 1966 (Adopted 16/12/1966, entered into

force 23/03/1976); American Convention on Human Rights 1969 (Adopted 22/11/1969,

entered into force 18/07/1978); International Convention on the Elimination of All Forms of

Discrimination against Women 1979 (Adopted 18/12/1979, entered into force 03/09/1981);
 45

Thus, the UN Charters apparent ban on unauthorised humanitarian force does not mean that

states are free to treat their own citizens as they wish.112However, the existence of these

obligations does not mean they can be enforced. As Jack Donnelly explains, none of the

obligations to be found in multilateral human rights treaties may be coercively enforced by

any external actor.113 For example, the 1948 Genocide Convention requires its signatories to

prevent and punish the crime of genocide.114 But that Convention subsequently makes

clear that the only way in which genocide can legally be prevented is by calling upon the

competent organs of the UN to take such action as they consider appropriate.115

While this remains the black-letter-law position, a long line of state practice shows that states

are willing to intervene on the basis of human rights concerns. For example, in 1971, India

justified its military intervention in Bangladesh on humanitarian grounds. In response to the

violations of fundamental human rights in East Bengal, the murder and imprisonment of large

African Charter of Human and Peoples Rights 1981 (Adopted 27/06/1981, entered into force

21/10/1986); UN Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment 1984 (Adopted 10/12/1984, entered into force 26/06/1987); UN Convention of the

Rights of the Child 1989 (Adopted 20/11/1989, entered into force 02/09/1990).
112
JL Holzgrefe (no. 71) 43.
113
J Donnelly, Human Rights, Humanitarian Crisis, and Humanitarian Intervention (1993)

48(4) International Journal 607-40, 623.

114
UN Convention on the Prevention and Punishment of Crime of Genocide 1948 (Adopted

09/12/1948, entered into force 12/01/1951) Article I.

115
Ibid, Article VIII.
 46

numbers of the Bengalese population, and the causing of mass flights of refugees from East

Bengal to India at the hands of Pakistan, India used military force. The result was hailed as a

triumph for the East Bengalis human rights and their desire for self-determination.116 The

invasion of Uganda by Tanzanian troops to free the country from the dictatorial and

oppressive regime of Idi Amin can also be considered a use of force for humanitarian

purposes117, and so too can the invasion of Cambodia by the Vietnamese aimed at ending the

rule of the brutal Khmer Rouge.118

Alongside these instances of unilateral action, it is competent to look to the practice of the

UN Security Council to help show a growing willingness of the international community to

resort to force for humanitarian purposes. As discussed above, the Security Council, through

its powers for the maintenance of international peace and security under Chapter VII of the

UN Charter, has explicitly authorised force to halt widespread human rights abuses. In the

1990s, there were a plethora of such authorisations: Michael J Smith describes the decade as

a period of Dudley Do-Right euphoria.119 The UN adopted resolutions on the situations in

116
T Franck and N Rodley, After Bangladesh: The Law of Humanitarian Intervention by

Military Force (1973) 67(2) The American Journal of International Law 275-305, 275.
117
See R Kolb, Note on Humanitarian Intervention (2003) 85(849) International Committee

of the Red Cross: Current Issues and Comments 120-34, 124/25.

118
See M Leifer, Vietnams intervention in Kampuchea: The Rights of States v the Rights of

People in I Forbes and M Hoffman (eds), Political Theory, International relations and the

Ethics of Intervention (Basingstoke, 1993) 145.

119
MJ Smith, Humanitarian Intervention: An Overview of the Ethical Issues (1998) 12(91)

Ethics and International Affairs 63-79, 66.

 47

Iraq120, Somalia121, Haiti122, Rwanda123, the Great Lakes124, Albania125 and Sierra

Leone126which not only condemned the grave humanitarian situations in the countries, but

also authorised UN member states to use all necessary means to restore international peace

and security.127

The most significant instance of state practice to support a norm of intervention for the

protection of human rights came in 1999 when NATO intervened in Kosovo. In response to

the tyrannical rule of the Yugoslavian government over the Kosovars, which had been

expressly recognised as a concerning humanitarian situation by the UN Security Council128,

NATO initiated military operations against Yugoslavia. The campaign, carried out by way of

air-strikes, sought to end horrific and ongoing ethnic cleansing throughout the country. The

scale of the suffering was subsequently documented by the Independent International

120
UN Security Council Resolution 678 (1990) Iraq S/RES/678 (29/11/1990) and Security

Council Resolution 688 (1991) (no. 48).

121
Security Council Resolution 794 (1992) (no. 52).
122
Security Council Resolution 940 (1994) (no. 57).
123
UN Security Council Resolution 929 (1994) Rwanda, S/RES/929 (22/06/1994).
124
UN Security Council Resolution 1078 (1996) The Great Lakes, S/RES/1078 (09/11/1996).
125
UN Security Council Resolution 1114 (1997) Albania, S/RES/1114 (19/06/1997).
126
UN Security Council Resolution 1132 (1997) Sierra Leone, S/RES1132 (08/10/1997).
127
For example, Security Council Resolution 678 (1990) (no. 122).
128
Security Council Resolution 1199 (1998) (no. 11).
 48

Commission on Kosovo129 and can be summarised as follows, one million people were

displaced, more than ten thousand were killed, many were raped and tortured, and many saw

their property destroyed or pillaged.130

The fact that the NATO intervention was not subsequently condemned by the UN Security

Council, despite efforts for such a declaration of disapproval by Russia, has been argued by

some as conferring tacit approval of the action.131 This argument finds further support in the

Security Councils engagement in the post-intervention administration of the province.

On this basis, Fernando Teson states that Kosovo is the most important precedent for the

doctrine of humanitarian intervention and it has been suggested elsewhere that it was the

last in a sequence of events for the establishing of an international norm of unilateral

humanitarian intervention.132 Furthermore, many prominent scholars, including Cassese133,

129
Report of the Independent International Commission on Kosovo, The Kosovo Report

(Oxford University Publishing, 2000) available online at <

http://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD3

92-thekosovoreport.pdf > (last accessed 03/03/17).

130
FR Teson, Kosovo: A Powerful Precedent for the Doctrine of Humanitarian Intervention

(2009) 1(2) Amsterdam Law Forum, available online at <

http://amsterdamlawforum.org/article/view/62/119 > (last accessed 21/02/17).

131
See (no 13).
132
R Kolb (no. 117) 125.
133
A Cassese, Ex Iniuria Ius Non Oritur: Are We Moving Toward International

Legitimation of Forcible Humanitarian Countermeasures? (1999) 10 European Journal of

 49

Currie134, and Henkin135 all see in Kosovo an emergent norm of customary international

law.136

Taken together, the above paints a picture of an international community that believes it has

the right to intervene in circumstances where there are grave human rights violations. In the

words of the UN Secretary-General Kofi Annan, we have learned that the world cannot

stand aside when gross violations of human rights are taking place and thus a developing

norm in favour of intervention to protect civilians form wholesale slaughter has emerged.137

(b) Restriction of Sovereignty Norm

It can be argued the state practice explored above amounts to a gradual weakening of state

sovereignty: if a state is committing extreme human rights abuses, other states will not

consider that states sovereign autonomy a relevant defence of such actions. For example, in

Kosovo, NATO ignored the sovereign authority of Milosevic. In this way, the diminishment

International Law 23-30, 23; and A Cassese, A Follow-Up: Forcible Humanitarian

Countermeasures and Opinio Necessitatis(1999) 10 European Journal of International Law

791-99, 791.
134
J Currie, NATOs humanitarian intervention in Kosovo: Making or Breaking International

Law? (1998) 36 Canadian Yearbook of International Law 303-33, 303.

135
L Henkin, Kosovo and the Law of Humanitarian Intervention (no. 14) 824.
136
R Kolb (117) 128.
137
Report of the Secretary-General to the UN General Assembly (no. 10).
 50

of the traditional supremacy of the norm of state sovereignty is correlative to the

development of the norm of humanitarian intervention.

Authority for such a contention can be found as early as 1992s An Agenda for Peace, in

which the UN Secretary-General said the time of absolute and exclusive sovereignty has

passed; its theory was never matched by reality.138 While Boutros-Ghali may have been

slightly ahead of the rest of the international community, recent developments show beyond

doubt that sovereignty should now be considered contingent on respect for human rights.

In 1998, Kofi Annan stated that state frontiers should no longer be considered watertight

protection for war criminals and mass murderers. This approach to sovereignty was

reinforced by his successor to the post of UN Secretary-General, Ban Ki-moon139, and

received institutional recognition in the Responsibility to Protect.

The Responsibility to Protect is a global political commitment that was endorsed by the UN

member states during the 2005 World Summit. The underlying principle is that sovereignty

entails a responsibility to protect all populations from mass atrocity crimes and human rights

violations.140 The Security Council has explicitly endorsed this concept in a number of

138
Report of the Secretary-General to the UN General Assembly, An Agenda for Peace

A/47/227 (17/06/1992).
139
I Hurd (no. 103) 304.
140
Report of the International Commission on Intervention and State Sovereignty, GJ Evans

and M Sahnoun, The Responsibility to Protect: Report of the International Commission on

Intervention and State Sovereignty Ottawa: International Development Research Centre

 51

instances since its elucidation. It was applied, with varying degrees of consistency as to the

aims of the doctrine, in Darfur141, Somalia142, and Libya143.144

Some would argue that the Responsibility to Protect has provided a neat solution for the

problem of humanitarian intervention. For example, it has been stated that this doctrine

provides the vital conceptual breakthrough in the long and contentious debate over state

sovereignty and humanitarian intervention.145 This was indeed the aim of the International

Commission on Intervention and State Sovereignty when they first proposed the doctrine in

2001.146 In essence, if a state does not fulfil its human rights obligations, other states have the

responsibility to step in. Thus, such intervention is legally justified, abrogating the need for a

doctrine of unilateral humanitarian intervention.

But, it must be noted that the formal support for Responsibility to Protect, notably the

outcome of the 2005 World Summit, is for the case of intervention that is approved by the

(2001) available online at < http://responsibilitytoprotect.org/ICISS%20Report.pdf > (last

accessed 15/03/17).
141
UN Security Council Resolution 1706 (2006) Sudan, S/RES/1706 (31/08/2006).
142
UN Security Council Resolution 1814 (2008) Somalia, S/RES/1814 (15/05/2008).
143
Security Council Resolution 1973 (2011) (no. 54).
144
AJ Bellamy, The Responsibility to Protect- Five Years On (2010) 2492) Ethics and

International Affairs 143-69.

145
CG Sampford and R Thakur, Responsibility to Protect and Sovereignty (Routledge,

Farnham, 2013) 2.
146
International Commission on Intervention and State Sovereignty (no. 140) Foreword.
 52

Security Council.147 As has been well established elsewhere in this paper, the legality of such

action is already patent. In the words of Ian Hurd, this minimises the legal innovation as well

as the practical scope of the concept, because it essentially repeats what is already accepted

as the Security Councils powers.148 Indeed, the most notable use of Responsibility to

Protect, the Libyan intervention, is little more than a Security Council authorised

humanitarian intervention.

Therefore, the Responsibility to Protect does not adequately address the issue of unilateral

humanitarian action. However, what it is helpful in doing- and this is why it is has been

considered here- is showing that there is now widespread and institutional acceptance among

states that the norm of sovereignty has been significantly restricted. As stated by Nicholas

Wheeler, for the first time in the history of modern international society governments are

now exposed to the scrutiny of other governments, human rights organisations and

international bodies.149

This picture of a reduced concept of sovereignty is further augmented by an increasingly

broad interpretation of the right to self-defence. Traditionally, the international community

heavily rejected any notion that anything other than an actual armed attack by a state would

147
I Hurd (no. 103) 305.
148
Ibid.
149
NJ Wheeler, Saving Strangers: Humanitarian Intervention in International Society (

Oxford University Press, 2000) 1.

 53

give rise to a claim of self-defence.150 Thus, there was no right of self-defence against a non-

state actor, such as a terrorist organisation, that was not under the control or influence of

state.151 This was the result of high levels of respect for state sovereignty and territorial

integrity, with the concern being that if self-defence was to allowed to become more broad,

then a state may find its territory violated as a result of acts it was not responsible for.

However, a number of factors, including an increase in the number of states claiming to

exercise a right of self-defence against non-state actors and a decrease in the willingness of

other states to condemn such measures- particularly after the horrors of 2001152- has resulted

in a considerable shift in the law. Christian Tams notes the increased willingness of the ICJ to

leave open the question of self-defence against non-state actors153 and a growing acceptance

by the ICJ that self-defence is available to armed attacks even if these attacks cannot be

attributed to the territorial state.154 Therefore, today, a non-state actor can commit an armed

attack without the state in whose territory it is operating having to have effective control over

it. This shift in the law of self-defence confirms the tendency of the international community

to devalue sovereignty in the face other, more pressing, concerns.

150
C Tams, The Use of Force Against Terrorists (2009) 20(2) European Journal of

International Law 359-97, 367.

151
Nicaragua (no. 39) 109-115.
152
SD Murphy, Self-Defence and the Israeli Wall Opinion (2005) 99 American Journal of

International Law 62-76, 62.

153
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

(Opinion) [2004] ICJ Rep 136.

154
Armed Activities on the Territory of the Congo (no. 41) 201.
 54

(iii) Customary Right of Unilateral Humanitarian Intervention

From the above, it is clear that there has been a normative shift in international law, with the

norm of humanitarian intervention emerging from a long line of state practice and

international opinion to challenge the traditional supremacy of state sovereignty. However,

the changing of the normative environment of international law does not, in and of itself,

create customary law. As per the Statute of the ICJ, what is required is general practice

accepted as law.155 As noted above156, this has been widely interpreted as requiring two

distinct things: state practice and opinio juris. Therefore, it must now be asked whether the

developments explored throughout this section satisfy these two requirements.

(a) State Practice

Critics of humanitarian intervention point out that state practice can only support a right of

unilateral humanitarian intervention through highly selective use. They point to countless

episodes of humanitarian abuse, such as the killing and forced starvation of almost half a

million Ibos in Nigeria in 1966-70 and the forced starvation of up to one million Ethiopians

by the government throughout the mid-1980s157, and ask why there was no intervention in

such cases. Christine Chinken makes this point, asking whether the Samaritan would have

155
ICJ Statute (no. 22) Article 38(1)(b).
156
See (no. 88).
157
JL Holzgrefe (no. 71) 47.
 55

survived history if on a subsequent journey he had encountered another dying person and had

walked by on the other side.158 She goes on to conclude that:

It seems that humanitarian intervention is a restricted notion, called up in situations

where it is relatively cheap, is against a militarily weak nation, operates in a location

that is accessible and strategically important, where public emotion is in favour and

the intervention does not interfere with other political and economic objectives.159

However, one can respond to such criticism by stating that an alignment of favourable factors

does not make an intervention any less desirable, and as such should not hinder the growth of

right to intervention in other, perhaps less easy, instances.

Furthermore, as is noted by Dino Kritsiotis, the selective exercise of unilateral humanitarian

intervention misconceives the theoretical and traditional understanding of humanitarian

intervention in international law, which is a right of states, rather than an obligation requiring

action.160 He goes on to explain that:

Inherent in the very conception of a right is an element of selectivity in the exercise of

that right. This is in keeping with the right-holders discretion to decide whether or

158
C Chinken, The State that Acts Alone: Bully, Good Samaritan or Iconoclast (2000) 11

European Journal of International Law 31-41, 37.

159
Ibid.
160
D Kritsiotis, Reappraising Policy Objections to Humanitarian Intervention (1998) 19

Michigan Journal of International Law 1005-50, 1027.

 56

not to exercise the right in question and commit its armed forces to foreign territories

and explains why it is the right of rather than the right to humanitarian

intervention that has taken hold in practice.161

In other words, because of the permissive nature of unilateral humanitarian intervention, its

selective application is not an impediment to it becoming customary international law.

(b) Opinio Juris

The second requirement for customary law is opinio juris, or settled opinion that such

practice is legal. Establishing this for the purposes of a customary law of unilateral

humanitarian intervention is much more difficult. Even when states have intervened, they

have been loath to invoke a legal justification for that intervention on humanitarian

grounds. Thus, Vietnam claimed it was responding to a large scale aggressive war in

Cambodia162, and Tanzania defended its intervention in Uganda on the grounds that is was

an appropriate response to Ugandas invasion, occupation and annexation of Kagara the

preceding year.163

161
Ibid.
162
SD Murphy, Humanitarian Intervention (no. 15) 104.
163
JL Holzgrefe (no. 71) 48, citing N Ronzitti, Rescuing Nationals Abroad Through Military

Coercion and Interventions on Grounds of Humanity (Martinus Nijhoff Publishers, 1985)

102-06.
 57

Similarly, Brownlie attacks arguably the most significant instance of state practice for

unilateral humanitarian intervention, arguing that the governments of the NATO states have

generally been consistent in their assertions that the action taken in Yugoslavia was legal.

However, the various statements avoid giving any particulars relating to the legal

framework.164 He concludes that there was certainly no clarity as to the humanitarian

motivation for the action in the official government statements.

However, such criticisms can be met with a number of instances in which the NATO states

did espouse humanitarian justifications for their action. For example, US President Bill

Clinton, on the eve of the intervention, stated:

Never forget, if we can do this here, then we can say to the people of the world,

whether you live in Africa, or Central Europe, or any other place, if somebody comes

after innocent civilians and tries to kill them en masse because of their race, their

ethnic background, or their religion, and its within our power to stop it, we will stop

it.165

Furthermore, in their defence to Yugoslavias legal challenge of the NATO action at the ICJ,

the Belgian representatives claimed that NATO felt obliged to intervene to forestall an

ongoing humanitarian catastrophe.166

164
CJ Apperley and I Brownlie (no. 23) 882.
165
Addressing troops in NATOs Kosovo force, quoted in BS Brown, Humanitarian

Intervention at a Crossroads, (2000) 41(5) William and Mary Law Review 1683-1739, 1691.
166
Legality of the Use of Force (no. 67) 11-12.
 58

It can also be argued that it is misconceived to look for a settled opinio juris for unilateral

humanitarian intervention. It is an extraordinarily subjective concept that will require

consideration in each case on the merits of its application to factually different circumstances.

Thus, rather than the explicit legal justifications given in each case, the broader underlying

objectives and motivations for interventions are what should be considered of most import.

As was explained by Kofi Annan in 1998:

[T]he intervening states gave refugee flows across the border as the reason why they

had to act. But what justified their action in the eyes of the world was the internal

character of the regimes they acted against.

In other words, what ought to be established is a consensus that such action can be legal,

rather than that it is legal in any given case. It is submitted that on the basis of the extensive

state practice explored above, and the clear shift in the normative environment of

international law, there is adequate opinion that unilateral humanitarian intervention can be

legal. This opinion can be found in the Kosovo case in the NATO states explanations as to

why they view[ed] their military action as lawful- as having a legal basis within the

normative framework of international law.167 Similarly, it is supported by the proposition

167
J Stromseth, Rethinking Humanitarian Intervention in JL Holzgrefe and RO Keohane

(eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge

University Press, 2003) 232-72, 244 (emphasis in the original).

 59

that, today, even the strongest supporters of state sovereignty will admit that no state holds

unlimited power to do what it wants to its own people.168

6. Conclusion

Throughout this paper it has been noted that differing theoretical stances can directly impact

on ones view as to the legality of unilateral humanitarian intervention. If one takes the

position of a legal classicist, it is illegal because of the black and white prohibition of force in

the UN Charter Article 2(4). Classicists cannot accept any exceptions to this prohibition other

than those explicitly provided for by the UN Charter. The result is that unilateral

humanitarian intervention will not ever be legal unless the Charter is modified according the

process proscribed by Articles 108 and 109.

If one is a legal realist, though, it is possible to consider developments in international law,

including instances of state practice and shifting international norms. Following this

approach, it is reasonable to conclude that a growth in international respect for human rights

and the broadening of an international norm for their protection has resulted in a

diminishment of state sovereignty. Moreover, it is possible to argue that these changes have

led to the emergence of a customary right to unilateral humanitarian intervention.169 Thus:

168
GJ Evans and M Sahnoun, The Responsibility to Protect (2002) 81(6) Foreign Affairs

99-110, 102.
169
This was also the conclusion of the Institute for International Law, Present Problems on

the Use of Force in International Law (2007) 72 Session of Santiago 238-367, 266/67.
 60

While there has been a 50-year period () when it was illegal, whether it is still so is

far from obvious. What is clear is that both states () have stepped up to the plate

and openly committed themselves to the availability of humanitarian intervention

with or without an explicit UN Sanction.170

The realist and classicist approaches represent conflicting theories about the way

international law is constructed, changed, and represented. Since such questions can never be

answered definitively, there will remain a fundamental uncertainty about the doctrine of

humanitarian intervention. It is thus tempting to conclude that the status of unilateral

humanitarian intervention is essentially indeterminate.171 Indeed, in the face of this

dilemma, many writers have stopped short of pronouncing unauthorised interventions as

either legal or illegal. Instead, they have assigned it to the realm of quasi-legality, by

concluding that it is a legitimate use of force, but it is not, strictly speaking, a legal one. In

this way, Ian Hurd states that no amount of debate over the law or recent cases will resolve

its status, it is both legal and illegal at the same time.172 Some scholars have even reasoned

that being viewed as legitimate is a desirable middle ground for unilateral humanitarian

intervention because it puts a very high burden of justification on those who would

intervene.173

170
A ODonoghue, Humanitarian Intervention Revisited (2005) 1 Hanse Law Review 165-

175, 174.
171
I Hurd (no. 103) 293.
172
Ibid.
173
Institute for International Law (no.169) 265.
 61

However, it can be contended that to take this approach- to stop only at legitimacy- is

inadequate. It fosters uncertainty and hesitation. This cannot suffice when the doctrine of

humanitarian intervention begs for clarity: If states remain unsure as to the permissibility of

intervening, it is likely that the international stalemate over Rwanda will repeat itself. This is

particularly true now, as governments, wary of the lessons learned in the aftermath of the

2003 Iraq War, are more hesitant than ever in resorting to force without a clear legal

justification. This is being illustrated by the lack of decisive action over the widespread

human rights abuses currently taking place in Syria.

Therefore, one must go further than legitimacy and choose to approach the matter from the

realist point of view, concluding that there is a customary right to unilateral humanitarian

intervention. It is important to note, though, that an analysis of the state practice explored

above shows that states will act only in the face of extreme circumstances. Thus, the

customary right drawn from this practice is a very limited one. States who choose to exercise

it will thus be judged according to the scale of the crisis to which they are responding and the

presence of a number of factors that were existent in most of the instances of unilateral

intervention discussed.174 In the words of Professor Jane Stromseth, customary law

174
Examples of relevant factors are (i) serious violations of fundamental human rights

involving loss of life perpetrated by a government that showed no willingness to stop; (ii) the

inability of the United Nations Security Council to authorize military action, despite repeated

expressions of Council concern about the threat the violations posed to peace and security;

(iii) the necessity to use force to stop the human rights abuses committed by government

forces; (iv) the proportionality of the military actions taken to the end of stopping the

atrocities; (v) the fact that the interventions were undertaken by a coalition of states acting
 62

evolution has provided a legal justification for [unilateral] humanitarian intervention in rare

cases.175

To conclude otherwise poses the inviolable question as to how we should respond to a

Rwanda, to a Srebrenica, to gross and systematic violations of human rights that offend every

precept of our common humanity?176 Thus, not only does the finding of a customary right of

unilateral humanitarian intervention go some way towards curing the doctrine from its

malady of uncertainty, it also avoids the gap between law and the common-sense values of

justice, morality and good sense growing too wide.177

collectively; (vi) the fact that the interventions focused on stopping the atrocities, protecting

individuals at risk, and stabilizing a situation that risked further humanitarian catastrophe;

(vii) the fact that the states taking military action sought to defend their action as legally

justified; (viii) the fact that the interventions were welcomed by the population at risk:

Institute for International Law (no. 171) 266, drawing from J Stromseth (no. 169) 244-255.
175
J Stromseth (no. 167) 244.
176
Kofi Annan, We the Peoples: The Role of the UN in the 21st Century (Millennium Report

of the UN Secretary General) (2000) available online at <

http://www.un.org/en/events/pastevents/pdfs/We_The_Peoples.pdf > (last accessed

21/03/17).
177
T Franck, Interpretation and Change in the Law of Humanitarian Intervention in JL

Holzgrefe and RO Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political

Dilemmas (Cambridge University Press, 2003) 204-31, 211.

 63

7. Bibliography

Books

Arend AC, Legal Rules and International Society (Oxford University Press, 1999)

Aust A, Handbook of International Law (Cambridge University Press, 2005)

Brierly JL, The Law of Nations: An Introduction to the Modern Law of Peace (Oxford

University Press, 1963)

Brownlie I, Humanitarian Intervention in JN Moore JN (ed), Law and Civil War in

the Modern World (Johns Hopkins University Press, 1974)

Brownlie I, Basic Documents on Human Rights (Oxford University Press, 3rd edn,

1992)

Brownlie I, International Law and the Use of Force by States (Oxford University

Press, 1963)

Brownlie I, Principles of Public International Law (Oxford University Press, 6th edn,

1995)

Combacua J, The Exception of Self-Defence in UN Practice in A Cassese A (ed),

The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers,

Dodrecht, 1986)
 64

DAmato A, International Law: Process and Prospect (Springer Publishing, 2nd edn,

1995)

Dallaire R, Shake Hands with the Devil (Arrow Books, London, 2003)

Dinstein Y, War, Aggression and Self-Defence (5th edn) (Cambridge University Press,

2011)

Farer TJ, An Inquiry into the Legitimacy of Humanitarian Intervention in Damrosch

LF and Scheffer DJ (eds), Law and Force in the New International Order (Westview

Press, Boulder, 1991)

Franck T, Interpretation and Change in the Law of Humanitarian Intervention in

Holzgrefe JL and Keohane RO(eds), Humanitarian Intervention: Ethical, Legal and

Political Dilemmas (Cambridge University Press, 2003)

Grotius H, The Law of War and Peace (1625)

Higgins R, Problems and Processes: International Law and How We Use It (Oxford

University Press, Oxford, 1994)

Holzgrefe JL, The Humanitarian Intervention Debate in Holzgrefe JL and Keohane

RO (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas

(Cambridge University Press, 2003)

 65

Leifer M, Vietnams intervention in Kampuchea: The Rights of States v the Rights of

People in Forbes I and Hoffman M (eds), Political Theory, International relations

and the Ethics of Intervention (Basingstoke, 1993)

Livingston S and Eachus T, Rwanda: US Policy and Television Coverage in

Adelman H and Suhrke A (eds), The Path of a Genocide: The Rwanda Crisis from

Uganda to Zaire (Transaction Publishers, New Brunswick, 2000)

Melvern L, A People Betrayed: The Role of the West in Rwandas Genocide (Zed

Books, London, 2000)

Murphy SD, Humanitarian Intervention: The UN in an Evolving World Order

(University of Pennsylvania Press, Philadelphia, 1996)

Oppenheim L, International Law: A Treatise 2 (Longmans, Green and Co, London,

1952)

Prunnier G, The Rwanda Crisis: History of a Genocide (C. Hurst & Co., London,

1999)

Ronzitti N, Rescuing Nationals Abroad Through Military Coercion and Interventions

on Grounds of Humanity (Martinus Nijhoff Publishers, 1985)

Russel RB, A History of the UN Charter: The Role of the United States, 1940-1945

(Brookings Institution, Washington DC, 1958)

 66

Sampford CG and Thakur R, Responsibility to Protect and Sovereignty (Routledge,

Farnham, 2013)

Stone J, Aggression and World Order: A Critique of United Nations Theories of

Aggression (Stevens, London, 1958)

Stromseth J, Rethinking Humanitarian Intervention in JL Holzgrefe and RO

Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas

(Cambridge University Press, 2003)

Teson FR, Humanitarian Intervention: An Inquiry into Law and Morality

(Transnational Publishing, 1988)

Thirlway H, The Sources of International Law (Oxford University Publishing, 2014)

Waldock CMH, The Regulation of the Use of Force by Individual States in

International Law 81 (Brill/Leiden Publishers, Boston, 1952)

Wheeler NJ, Saving Strangers: Humanitarian Intervention in International Society

(Oxford University Press, 2000)

Journal Articles
 67

Apperley CJ and Brownlie I, Kosovo Crisis Inquiry: Memorandum on the

International Law Aspects (2000) 49 International and Comparative Law Quarterly

878-905

Bellamy AJ, The Responsibility to Protect- Five Years On (2010) 2492) Ethics and

International Affairs 143-69

Blokker N, Is the Authorization Authorized? Powers and Practice of the UN Security

Council to Authorise the Use of Force by Coalitions of the Able and Willing

(2000) 11(3) European Journal of International Law 541-68

Brown BS, Humanitarian Intervention at a Crossroads, (2000) 41(5) William and

Mary Law Review 1683-1739

Cassese A, A Follow-Up: Forcible Humanitarian Countermeasures and Opinio

Necessitatis (1999) 10 European Journal of International Law 791-99

Cassese A, Ex Iniuria Ius Non Oritur: Are We Moving Toward International

Legitimation of Forcible Humanitarian Countermeasures? (1999) 10 European

Journal of International Law 23-30

Chinken C, The State that Acts Alone: Bully, Good Samaritan or Iconoclast (2000)

11 European Journal of International Law 31-41

 68

Crawford SM, U.N. Hunanitarian Intervention in Somalia (1993) 3 Transnational

Law and Contemporary Problems 273-329

Currie J, NATOs humanitarian intervention in Kosovo: Making or Breaking

International Law? (1998) 36 Canadian Yearbook of International Law 303-33

DAmato A, Israels Air Strike Against the Osiraq Reactor: A Retrospective (1996)

10 Temple International and Comparative Law Journal 259-64

DAmato A, The Meaning of Article 2(4) in the UN Charter (2013) Northwestern

Public Law Research Paper 13-30

Donnelly J, Human Rights, Humanitarian Crisis, and Humanitarian Intervention

(1993) 48(4) International Journal 607-40

Evans GJ and Sahnoun M, The Responsibility to Protect (2002) 81(6) Foreign

Affairs 99-110

Franck T and Rodley N, After Bangladesh: The Law of Humanitarian Intervention

by Military Force (1973) 67(2) The American Journal of International Law 275-305

Franck T, Some Observations on the ICJs Procedural and Substantive Innovations

(1987) 81 The American Journal of International Law 116-21

 69

Franck T, What Happens Now? The UN After Iraq (2003) 97 The American Journal

of International Law 607-20

Franck T, Who Killed Article 2(4)? (1970) 64(5) The American Journal of

International Law 809-37

Glennon M, The Fog of Law: Self-defence, Inherence and Incoherence in Article

2(4) of the UN Charter (2002) 25 Harvard Journal of Law and Public Policy 539-58

Goodman R, Humanitarian Intervention and Pretexts for War (2006) 100 The

American Journal of International Law 107-41

Henkin L, Kosovo and the Law of Humanitarian Intervention (1999) 93(4)

American Journal of International Law 824-28

Henkin L, The Reports of the Death of Article 2(4) Are Greatly Exaggerated (1971)

65 The American Journal of International Law 544-48

Hurd I, Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent

World (2011) 25(3) Ethics and International Affairs 293-313

Institute for International Law, Present Problems on the Use of Force in International

Law (2007) 72 Session of Santiago 238-367

 70

Kolb R, Note on Humanitarian Intervention (2003) 85(849) International Committee

of the Red Cross: Current Issues and Comments 120-34

Kritsiotis D, Reappraising Policy Objections to Humanitarian Intervention (1998)

19 Michigan Journal of International Law 1005-50

Lillich RB, The Role of the UN Security Council in Protecting Human Rights in

Crisis Situations: UN Humanitarian Intervention in the Post-Cold War World (1995)

3 Tulane Journal of Internation and Comparative Law 1-17

Murphy SD, Self-Defence and the Israeli Wall Opinion (2005) 99 American Journal

of International Law 62-76

ODonoghue A, Humanitarian Intervention Revisited (2005) 1 Hanse Law Review

165-75

Paul J, Despite the Terrors of Typologies: The Importance of Understanding

Categories of Difference and Identity (2015) 17(2) Interventions: International

Journal of Postcolonial Studies 174-95

Pease KK and Forsythe DP, Human Rights, Humanitarian Intervention, and World

Politics (1993) 15(2) Human Rights Quarterly 290-314

Reisman WM, Criteria for the Lawful Use of Force in International Law (1985) 10

Yale Journal of International Law 279-85

 71

Schnachter O, The Legality of Pro-Democratic Invasion (1984) 78 The American

Journal of International Law 645-50

Smith MJ, Humanitarian Intervention: An Overview of the Ethical Issues (1998)

12(91) Ethics and International Affairs 63-79

Stanton GH, Could the Rwandan genocide have been prevented? (2004) 6(2)

Journal of Genocide Research 211-28

Tams C, The Use of Force Against Terrorists (2009) 20(2) European Journal of

International Law 359-97

Teson FR, Kosovo: A Powerful Precedent for the Doctrine of Humanitarian

Intervention (2009) 1(2) Amsterdam Law Forum, available online at <

http://amsterdamlawforum.org/article/view/62/119 > (last accessed 21/02/17)

Wood M, International Law and the Use of Force: What Happens in Practice (2013)

53 Indian Journal of International Law 345-67

Reports

Kofi Annan, We the Peoples: The Role of the UN in the 21st Century (Millennium

Report of the UN Secretary General) (2000) available online at <

http://www.un.org/en/events/pastevents/pdfs/We_The_Peoples.pdf > (last accessed

21/03/17)
 72

Report of the Independent International Commission on Kosovo, The Kosovo Report

(Oxford University Publishing, 2000) available online at <

http://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC12569890

05CD392-thekosovoreport.pdf > (last accessed 03/03/17)

Report of the International Commission on Intervention and State Sovereignty, GJ

Evans and M Sahnoun, The Responsibility to Protect: Report of the International

Commission on Intervention and State Sovereignty Ottawa: International

Development Research Centre (2001) available online at <

http://responsibilitytoprotect.org/ICISS%20Report.pdf > (last accessed 15/03/17)

Report of the International Law Commission, 18th Session, Yearbook of the

International Law Commission Vol II (1966) available online at <

http://legal.un.org/ilc/publications/yearbooks/english/ilc_1966_v2.pdf > (last accessed

21/02/17)

Report of the International Law Commission, 53rd Session, Draft Articles for the

Responsibility of States for Internationally Wrongful Acts Yearbook of the

International Law Commission Vol II (2001) available online at <

http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf > (last

accessed 21/02/17)

Wilmhurst E, Principles of International Law on the Use of Force by States in Self-

Defence Chatham House (2005) available online at <

 73

https://www.chathamhouse.org/publications/papers/view/108106 > (last accessed

02/03/17)

Other Sources

Human Rights Watch, Syria, available online at < https://www.hrw.org/middle-east/n-

africa/syria > (last accessed 25/03/17)

Kanade M, Article 2(4) of the UN Charter: Alive and Well, available online at <

http://www.monitor.upeace.org/archive.cfm?id_article=632#_ftnref14 > (last

accessed 21/02/17)

NATO Press Release, NATO Secretary General, Dr J Solana, and Supreme Allied

Commander Europe, General W Clark, Transcript (25/03/1999) available online at

<http://www.nato.int/kosovo/press/p990325a.htm> (last accessed 02/03/17)

Surf Survivors Fund, Rwandan History-Statistics, available online at <

http://survivors-fund.org.uk/resources/rwandan-history/statistics > (last accessed

12/01/17)

UN Press Release, Security Council Rejects Demand for Cessation of Use of Force

Against Federal Republic of Yugoslavia SC/6659 (26/03/99), available online at

<http://www.un.org/press/en/1999/19990326.sc6659.html> (last accessed 29/02/17)

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8. Appendix

Please note, the word legal, which was included in the original title, has been omitted from

the final title with the agreement of dissertation co-ordinator Douglas Bain.

Signed: