Respect for a state’s sovereignty and non-intervention in the internal affairs of another state have been substantive components of the international legal order since the peace of Westphalia. Until the middle of the twentieth century human rights were considered to be an internal matter of each state. Therefore, state’s sovereignty acted as an inviolable shield even in the cases of gross human rights violations within the state.
However, the Charter of the United Nations recognized respect for human rights as one of the purposes of the Organization and thus elevated the protection of human rights to a matter of international concern. With this idea another was clear: inviolability of state’s sovereignty can no longer be absolute.
Gaps in the United Nations system
The Member States of the United Nations (UN) limited their sovereign rights by entitling the Security Council to act, even by using force, when international peace and security is threatened, including cases when it is threatened by severe human rights violations. Moreover, the “Uniting for Peace” Resolution authorized the General Assembly to take over certain powers of the Security Council, when the latter is in a deadlock.
Despite these powers of the two principal bodies, the UN is still not always able to avert humanitarian atrocities in the world - mainly because of the veto right in the voting system of the Security Council and limited powers of the General Assembly. Forced starvation of Ethiopians in the 1980s, the genocide in Rwanda, murder of Kurds in Iraq, Kosovo atrocities in the 1990s are only a few of tragic episodes when the UN failed to respond to international threats thus evidencing the gaps in the UN system.
Radical response of the international community
The recurring failures of the UN to adequately respond to grave human rights violations on a massive scale did not leave the international community indifferent. Its reaction took the form of unilateral military interventions: Belgian interventions in Congo (1960, 1964, 1968), U.S. intervention in the Dominican Republic (1965), Indian intervention in East Pakistan (1971), Vietnamese use of force against Cambodia (1979), U.S. intervention in Grenada (1983) and Panama (1989/90), NATO intervention in Kosovo (1999) are only several of such examples.
These interventions, falling outside the regulation of the UN Charter, received controversial appraisals. The Secretary-General admitted in the “Report on the Situation in Rwanda” that the international community ‘failed in [the] response to the agony of Rwanda and thus have acquiesced in the continued loss of human lives’, regretted its indifference and called for a review of the entire system in order to strengthen the reactive capacity.
Nevertheless, when a few years after the Rwandan tragedy NATO demonstrated a completely opposite reaction to the Kosovo atrocities, it prompted fierce debates and a claim was brought against the Member States of NATO in the Legality of the Use of Force case. This case proved to be inadmissible and never reached the merits stage, thus leaving the International Court of Justice (ICJ) without an opportunity to pronounce on the crucial question: whether unilateral military interventions on humanitarian grounds can find justification under the international law, and how do they comply, if at all, with the prohibition of the use of force provided in the Article 2(4) of the UN Charter and rooted in the customary international law.
Humanitarian intervention and the UN Charter
Article 2(4) of the Charter obliges every Member State to ‘refrain in its 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’. The Charter authorizes two exceptions: the right of self-defense and enforcement measures undertaken by the Security Council under Chapter VII. The contentiousness lies in whether there may be any additional exceptions to the use of force prohibition that would cover the cases of the unilateral use of force for humanitarian reasons.
In other words, the question is whether the prohibition embedded in Article 2(4) may be modified through the state practice beyond the exceptions provided in the Charter. The jurisprudence of the ICJ seems to answer this question in affirmative. In the judgment in the Nicaragua case, the ICJ held that ‘[t]he United Nations Charter <…> by no means covers the whole area of the regulation of the use of force in international relations’, thus implying that the Charter provisions are capable of change over time through the state practice.
Validity of the claims of the just humanitarian intervention
Since 1945, there have been around twenty instances of interventions on humanitarian grounds. Nevertheless, there have been instances of the state practice evidencing quite the contrary—the reluctance of states to resort to the use of force in the conflicts within other states, even though those conflicts amount to genocide. Despite the Rwanda lessons, states are acting in the same way towards the ongoing Darfur crisis. While this may be seen as a mere indifference of states, it can as well be regarded as a confirmation that states do not believe having a right to unilaterally resort to the use of force in order to stop a humanitarian disaster in another state.
The reaction of the international community to the NATO intervention in Kosovo seems to support the latter. This intervention was strongly opposed by the major powers—Russia, China and India. The Secretary-General generalized the reactions of states to NATO actions in Kosovo by expressing disapproval to unilateral resort to force without the authority of the Security Council in the "Annual Report on the Work of the Organization".
Finally, in the Ministerial Declaration produced by the Meeting of Foreign Ministers of the Group of 77 held three months after the NATO action, the ministers ‘rejected the so-called right of humanitarian intervention, which has no basis in the UN Charter or international law’. This statement at that time represented the opinion of 132 states. Consequently, the legality of humanitarian intervention remains contentious. It is hard to speak about the consensus within the international community with regard to this issue. Therefore, while the Charter does not preclude the right of humanitarian intervention, claims of its emergence through the state practice are rather premature.
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