Exceptional measures call for exceptional times: the permissibility under international law of humanitarian intervention to protect a people's right to self-determination.

Author:de las Cuevas, Juan Carlos
Position:I. Introduction into III. Analyzing the Permissibility of Humanitarian Intervention Under International Law B. Current Status of Humanitarian Intervention Under Customary International Law 2. Proponents: Humanitarian Intervention Is Customary International Law, p. 491-516
 
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  1. Introduction II. Humanitarian Intervention and Self Determination: Definitions, Origins, and Evolution A. Humanitarian Intervention B. Political Self-Determination III. Analyzing the Permissibility of Humanitarian Intervention under International Law A. Current Status of Humanitarian Intervention Under the United Nations Charter B. Current Status of Humanitarian Intervention Under Customary International Law C. Criteria for the Analysis of the Legality of Humanitarian Intervention IV. Humanitarian Intervention to Protect a Peoples' Right of Self-Determination A. Permissibility Under the United Nations Charter. B. Permissibility Under Customary International Law V. Conclusion I. Introduction

    On August 29, 2013, the British government announced that if the United Nations Security Council failed to take actions on the chemical attack carried out by the Syrian government against its people, "the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria." (1) The British government said that "[s]uch a legal basis was available under the doctrine of humanitarian intervention." (2) Although the British government advanced this proposal in response to the chemical attack, a proposal that was subsequently rejected by the British Parliament, (3) and it now seems very likely that a military intervention in Syria has been averted, (4) the movement by the British government rekindled the debate on whether there is a right under international law to intervene with military force in another country for humanitarian purposes.

    Although Syria's acquiescence to the dismantling of its chemical weapons arsenal (5) is a welcomed development, the conflict that has been ravaging the country for years seems to have no end in sight. (6) In the meantime, casualties reach alarming numbers. (7) World powers have taken sides, with Russia supporting the Assad regime and several Western countries backing the opposition forces. (8) Furthermore, the United Kingdom, France, and the United States recognized the Syrian Opposition Council ("SOC") as the sole legitimate representative of the Syrian people. (9) This recognition has raised the question of whether the Syrian conflict is a struggle for self-determination. (10)

    This Comment argues that humanitarian interventions are permissible under the U.N. Charter ("the Charter") and customary international law for limited purposes that include the protection of peoples' rights to self-determination under certain circumstances. Part II of this Comment will analyze the definition and evolution of the doctrine of humanitarian intervention and the right of peoples to self-determination. Part III will analyze the current status of the legality of humanitarian intervention under both the Charter and customary international law, concluding it is permissible under both types of law and two sets of criteria will be outlined. Part IV will then apply these sets of criteria to the self-determination scenario and conclude that humanitarian intervention is permissible both under the Charter and customary international law to protect peoples' rights to self-determination under very limited conditions.

  2. Humanitarian Intervention and Self-Determination: Definitions, Origins, and Evolution

    Professor Jordan Paust has stated that a denial of self-determination can infringe upon human rights. (11) For that reason, some scholars have considered whether such a denial gives rise to a right to intervene for humanitarian reasons. (12)

    1. Humanitarian Intervention

      1. Definition

        Several definitions of humanitarian intervention have been provided over the centuries. This Comment defines humanitarian intervention as the use of force by a state, group of states, or an international organization other than the United Nations, in another state in order to stop or prevent genocide or other gross, systematic, and widespread violations of basic human rights taking place within the territory of that state that affect its citizens. (13)

        This definition excludes interventions by outside powers to rescue their own nationals when they are being threatened abroad. Therefore, this Comment will not consider the cases of U.S. interventions in the Congo (1964), the Dominican Republic (1965), or Grenada (1983), and it will not consider Israel's raid in Entebbe, Uganda (1976). Such actions have been described as instances of self-help or self-defense. (14)

        The analysis will also exclude instances of use of force that have been authorized by the Security Council, since these interventions are undertaken by virtue of the Council's enforcement powers under the Charter. (15) This Comment is concerned instead with forcible actions taken in the absence of a Security Council resolution authorizing the use of force (or even a General Assembly resolution on the matter).

      2. Evolution

        The origins of the doctrine of humanitarian intervention can be traced to the Crusades. (16) In the thirteenth century, St. Thomas Aquinas proposed that "one sovereign has the right to intervene in the internal affairs of another 'when the latter greatly mistreats its subjects.'" (17) Hugo Grotius receives credit as the first international law scholar to articulate the standard for humanitarian intervention. (18) He "recognized the propriety of a 'war' against a ruler who engages in a 'manifest oppression' of his or her people." (19) The doctrine was also advanced by Emerich de Vattel, who stated that if a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him, any foreign power may rightfully assist an oppressed people who ask for its aid. (20)

        In the late nineteenth and early twentieth centuries, humanitarian intervention became widely accepted as "almost an absolute right of a state". (21) Most of those interventions were aimed at protecting religious or ethnic minorities in Europe. (22) Outside the Old Continent, the U.S. intervention in Cuba in 1898 is considered to be another example of the use of force for humanitarian purposes. (23) It has been argued that "many of the policies of humanitarian intervention were institutionalized by the League [of Nations] in minority treaties and specific third-party procedures for the resolution of disputes." (24)

        The year 1945 marked the beginning of a new era in international law. On October 24 of that year the U.N. Charter was entered into force. (25) In its very first article, the Charter identifies a purpose "to maintain international peace and security." (26) Article 2(3) mandates that the organization's Members must settle their international...

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