Humanitarian Intervention
Some Legal Aspects
Preamble
• The Doctrine is new
• Since 1990 escalation of confrontations
raise new questions
• New terminology invented, including the
term “Humanitarian Intervention”
The term
• English “Intervention” = involvement
• Russian “Интервенция” = military interference
• For the report intervention - military interference
of any martial agent out of the territory of the
state it belongs, or involvement of any
international armed perpetrators both without
agreement of the subject state government or if
the government does not actually exist
The Dispute
• Two parties :
• Realists : Intervention without UN SC
authorization is appropriate
• Theorists : Intervention out of UN
framework is illegal
Realists’ Arguments
• Primacy of human rights over sovereign
equality principle. (disputable)
• UN Security Council unfairness,
unrepresentative membership and doublestandards
Theorists’ Arguments
• Intervention without UN Security
Council is illegal.
• “pacta sunt servanda”
Legal aspect 1
• intervention is maintenance or restoration
of international peace and security
according to Article 42 of UN Charter.
Or:
• intervention – is self-defense under
Article 51 of UN Charter
Intervention vs Sovereignty
• intervention as we consider it is an
action of overcoming a state’s
sovereignty.
• Is anyone, except UN Security council is
able to overcome a state’s sovereignty?
Sovereignty
• Sovereign equality of all UN members the first of the guiding principles for the UN
and its members. It can be overcome in
accordance with the appropriate
procedure (art.41-50 of UN Charter).
-Three types of sovereignty:
-State sovereignty
-People’s sovereignty
-National sovereignty
Legal aspect 2 (deduction)
• People’s will is the only source of
sovereignty.
• State is always its manager.
• If executing sovereignty against people’s
interests, governor (government) should
be removed.
• If peoples for some reason are incapable
to do it themselves, help is to be provided.
The East Timor Intervention
• On September 12, 1999 Indonesian government
accepted the help of international community in the
situation settlement. Then UN Security Council
empowered establishing of multinational military forces
lead by Australia.
• After the burst of violence Indonesia removed its
military and police powers. Governmental
officials were recalled, and both Indonesia and
Portugal accepted the transfer of control to UN.
The East Timor Intervention
• Operation in East Timor is faultless,
considering the legal procedure of
decision to intervene. The operation’s aim
was establishing the government
according to the will of East Timorese
peoples revealed by plebiscite. Legally it
can be considered as restoration of
international peace and security according
to Article 39 and realized in
correspondence with 42 of UN Charter
The Kosovo Intervention
• On March 23 Secretary General of NATO required to
start air force operations in former republic of
Yugoslavia.
• UN Security Council enforced the UN intervention in
Kosovo only on June 10 1999.
The Kosovo intervention
• Legal nature of this intervention is
ambiguous.
• NATO’s proof for it’s legitimacy is that
UNSC determined the situation in Kosovo
as threat to international peace and
security.
• But none of both resolutions allowed
NATO to intervene.
Summary
• Contemporary doctrine of humanitarian intervention is
open to debate. Some scholars allow violation of
international law, what is unlikely to be accepted by
statute law advocates, but matches with emotions of
apologists of precedent law.
• However, the concept is imperfect. As we are living in a
civilized community, a way of resolving problems (e.g.
resolution of a respective body, such as UN International
Court) should be found in order to establish primacy of
law, not military power.