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French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation

Published on January 25, 2013        Author: 

In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.

 Consent of the Malian Authorities

The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.

This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together. Such a military intervention could however constitute a violation of the principles of non-intervention and non-interference in domestic affairs and the principle of self-determination of peoples. The resolutions adopted within the UN General Assembly and State practice in this field confirm this conclusion which was also shared by authors such as M. Bennouna, L. Doswald-Beck or by the Institute of International Law in its 1975 Wiesbaden Resolution on The Principle of Non-Intervention in Civil Wars (esp. art. 2) or the 2011 Rhodes Resolution on Military Assistance on Request. ” Read the rest of this entry…

 
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French Military Intervention in Mali: It’s Legal but… Why? Part I

Published on January 24, 2013        Author: 

Part 1: The Argument of Collective Self-Defense

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE) and chairman of the ESIL Interest Group on Peace and Security.

Dr. Karine Bannelier is Assistant Professor of International Law at the University Grenoble-Alpes (France). She is Director of the Master’s Degree in International Security and Defense.

One week after France launched its military intervention (“Operation Serval”) in Mali, there seems to be a general consensus concerning the legality of this intervention. Indeed, as the French Minister of Foreign Affairs Laurent Fabius rightly emphasized, France has not received a single protest concerning this intervention. On the contrary, the number of expressions of support is overwhelming: many individual States, regional organizations (including ECOWAS), the UN Secretary General and the members of the UN Security Council themselves have expressed their support and understanding. Even the rare States who expressed their opposition to this intervention did not challenge its legality. This contrasts with various military interventions in the past which were met with strong criticism and seems to indicate that no State doubts the legality of the French intervention in Mali.

But what is the precise legal basis authorizing it?

Read the rest of this entry…

 
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