The legality of humanitarian intervention in customary international law
(2007)Department of Law
- Abstract
- The aim of this study is to examine whether there exists a right of humanitarian intervention in customary international law. The point of departure is the principle of non-use of force in customary international law. The International Court of Justice established in the Nicaragua Case that the principle of non-use of force not only is a jus cogens norm, but that it also has the basic identity of the UN-charter article 2(4). By interpreting article 2(4) according to the provisions of interpretation in the Vienna Convention on the Law of Treaties, I thereby conclude that humanitarian intervention is not in conformity with article 2(4) and consequently not in conformity with the principle of non-use of force either. The high threshold for... (More)
- The aim of this study is to examine whether there exists a right of humanitarian intervention in customary international law. The point of departure is the principle of non-use of force in customary international law. The International Court of Justice established in the Nicaragua Case that the principle of non-use of force not only is a jus cogens norm, but that it also has the basic identity of the UN-charter article 2(4). By interpreting article 2(4) according to the provisions of interpretation in the Vienna Convention on the Law of Treaties, I thereby conclude that humanitarian intervention is not in conformity with article 2(4) and consequently not in conformity with the principle of non-use of force either. The high threshold for modification of the principle of non-use of force due to its jus cogens character is furthermore established. It is submitted that the evidence of State practice for modification of the principle of non-use of force must be overwhelming and reflect the legal conviction of the international community at large. I then conduct a case study, where four cases, which could be perceived as evidence of State practice in favor of humanitarian intervention, are analyzed. The cases are ''the three best cases'' during the Cold War: the Indian invasion of East Pakistan 1971, the Vietnamese invasion of Kampuchea 1978-79, the Tanzanian invasion of Uganda 1978-1979, as well as Operation Allied Force conducted by NATO against the FRY in the spring of 1999. The invading states in ''the three best cases'' primarily relied on self-defense as a way of arguing the legality of the interventions, which reinforces the principle of non-use of force in customary international law. The reaction from the international community was overall negative while the few states, which approved of the invasions, did not rely on the concept of humanitarian intervention. Operation Allied Force indicated a change in the attitude towards humanitarian intervention. The majority of the NATO-states together with the international community chose to assert the morality of the operation however. It has little value in terms of establishing a right of humanitarian intervention in customary international law. I therefore conclude that the State practice analyzed can not be used as evidence for a right of humanitarian intervention in customary international law, especially since the principle of non-use of force is a jus cogens norm. Regarding the question of humanitarian intervention de lege ferenda, I am of the opinion that humanitarian intervention should not be part of international law, because of the risk of abuse, which is worsened by the fact that humanitarian intervention is only available to nations with the military and economic capacity. The fact that humanitarian intervention is illegal under international law must not however stop the international community from reacting when there is a desperate humanitarian need. (Less)
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- author
- Månsson, Robert
- supervisor
- organization
- year
- 2007
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Folkrätt
- language
- English
- id
- 1560330
- date added to LUP
- 2010-03-08 15:55:26
- date last changed
- 2010-03-08 15:55:26
@misc{1560330,
abstract = {{The aim of this study is to examine whether there exists a right of humanitarian intervention in customary international law. The point of departure is the principle of non-use of force in customary international law. The International Court of Justice established in the Nicaragua Case that the principle of non-use of force not only is a jus cogens norm, but that it also has the basic identity of the UN-charter article 2(4). By interpreting article 2(4) according to the provisions of interpretation in the Vienna Convention on the Law of Treaties, I thereby conclude that humanitarian intervention is not in conformity with article 2(4) and consequently not in conformity with the principle of non-use of force either. The high threshold for modification of the principle of non-use of force due to its jus cogens character is furthermore established. It is submitted that the evidence of State practice for modification of the principle of non-use of force must be overwhelming and reflect the legal conviction of the international community at large. I then conduct a case study, where four cases, which could be perceived as evidence of State practice in favor of humanitarian intervention, are analyzed. The cases are ''the three best cases'' during the Cold War: the Indian invasion of East Pakistan 1971, the Vietnamese invasion of Kampuchea 1978-79, the Tanzanian invasion of Uganda 1978-1979, as well as Operation Allied Force conducted by NATO against the FRY in the spring of 1999. The invading states in ''the three best cases'' primarily relied on self-defense as a way of arguing the legality of the interventions, which reinforces the principle of non-use of force in customary international law. The reaction from the international community was overall negative while the few states, which approved of the invasions, did not rely on the concept of humanitarian intervention. Operation Allied Force indicated a change in the attitude towards humanitarian intervention. The majority of the NATO-states together with the international community chose to assert the morality of the operation however. It has little value in terms of establishing a right of humanitarian intervention in customary international law. I therefore conclude that the State practice analyzed can not be used as evidence for a right of humanitarian intervention in customary international law, especially since the principle of non-use of force is a jus cogens norm. Regarding the question of humanitarian intervention de lege ferenda, I am of the opinion that humanitarian intervention should not be part of international law, because of the risk of abuse, which is worsened by the fact that humanitarian intervention is only available to nations with the military and economic capacity. The fact that humanitarian intervention is illegal under international law must not however stop the international community from reacting when there is a desperate humanitarian need.}},
author = {{Månsson, Robert}},
language = {{eng}},
note = {{Student Paper}},
title = {{The legality of humanitarian intervention in customary international law}},
year = {{2007}},
}