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 here, here, 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…