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Forcible Humanitarian Action in International Law- part II

Published on May 18, 2017        Author: 

Part II of a Two-Part Post

Interpreting Article 2 (4) of the UN Charter

According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.

Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.

Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.

Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. Read the rest of this entry…

 

Forcible Humanitarian Action in International Law- part I

Published on May 17, 2017        Author: 

Part I of a Two-Part Post

There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:

  • The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
  • The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
  • The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
  • The supposedly inevitable abuse of the doctrine.

The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see herehere, here, here and here).

That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion. Read the rest of this entry…

 

Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups

Published on November 25, 2015        Author: 

On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.

Mixed Message

This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.

The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.

But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).

Effect of non-binding Resolutions

That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.

This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. Read the rest of this entry…