Moral imperatives and legal realities: the perennial conundrum of humanitarian intervention
O'Meara, C
Date: 24 January 2022
Article
Journal
Brown Journal of World Affairs
Publisher
Brown University
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Abstract
Article 1 of the UN Charter embodies a well-known tension that exists in international
law. On the one hand, it sets out perhaps the most fundamental purpose of the UN:
the maintenance of international peace and security. This principle underpins the
operation of the post-World War II rules-based international order. It is reflected ...
Article 1 of the UN Charter embodies a well-known tension that exists in international
law. On the one hand, it sets out perhaps the most fundamental purpose of the UN:
the maintenance of international peace and security. This principle underpins the
operation of the post-World War II rules-based international order. It is reflected in
Article 2(4) of the UN Charter, which prohibits the “threat or use of force against the
territorial integrity or political independence of any state.”1 Such prohibition, while
routinely flouted by states, stands as an intransgressible rule of international law.
2 On
the other hand, Article 1 establishes what appears to be an equally foundational
principle: promoting and encouraging respect for human rights and for fundamental
freedoms. Indeed, the burgeoning body of international human rights law that has
arisen since the signing of the Charter has increasingly placed human rights and
human security at the center of international concern.
The question under consideration, therefore, is what happens when these two
foundational principles of the post-World War II order collide? If a state perceives a
moral imperative to use military force to respond to egregious breaches of human
rights occurring in the territory of another state, can these principles be reconciled to
allow military intervention in that state under the current rules of international law?
Furthermore, regardless of the present position under international law, should a right
that allows states to intervene in this way be recognized? This is the conundrum of
humanitarian intervention. For this author, international law does not, and should not,
recognize a right of humanitarian intervention.
Law School
Faculty of Humanities, Arts and Social Sciences
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