243 / 464
229
YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? …
notion of international peace and security by following the path it had already trod in
connection with the sanctions on Rhodesia and South Africa and no longer necessarily
equated threats or breaches of international peace and security with cross-border effects.
25
Instead, human rights abuses as such could fall under this category: after all, the ICJ
had already famously declared that some fundamental human rights were owed to the
international community as a whole.
26
For the Utopian the expansion of the notion of
international peace and security is the logical next step. For the sceptic this constitutes an
ambitious task that comes with the prize of obstructing any consistent theory of peace.
27
Notwithstanding the doctrinal difficulties, the international community seems
to have come to grips with this wide interpretation of Article 39. Security Council
authorizations to use force in situations of gross domestic human rights purposes
(collective humanitarian intervention), first and foremost non-international armed
conflicts, are generally accepted as being perfectly legal.
28
On the other hand, attempts to establish a right to humanitarian intervention
outside the Charter framework have been futile. Already during the Cold War era,
scholars have tried to establish such a right as being in conformity with the UN
Charter, since its preamble not only refers to the ‘faith in fundamental human rights’
but also states that armed force shall only be used ‘in the common interest’, which
is found in the protection human rights protection as mentioned in the Preamble
itself and Articles 1, 55, and 56,
29
a claim that finds further support in the growing
importance of international human rights law.
30
In the wake of Kosovo, another
line of argumentation from this period was revived; instead of attempting to squeeze
humanitarian intervention by cherry-picking the wording and provisions of the UN
Charter, attention shifted towards the deficiency of the prohibition on the use of force
and the ‘gap between what international law allows and what morality requires.’
31
On
25
Rosalyn Higgins,
Problems and Process. International Law and HowWe Use it
(OUP, 1995), 255.
26
Already in 1970 the ICJ famously held that certain fundamental human rights were so important that
every other state had a legal interest in their protection. ICJ, Barcelona Traction, Light and Power
Company, Limited (Belgium v. Spain) Judgment, ICJ Reports 1970, 3, paras 33 and 34.
27
Martti Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View (1995)
6
European Journal of International Law
324, 342. See also Dino Kritsiotis, ‘When States Use Armed
Force’ in Christian Reus-Smit (ed),
The Politics of International Law
(CUP, 2004) 45, 73.
28
Thomas M. Franck, ‘Humanitarian Intervention’ in Samantha Besson and John Tasioulas(eds),
The
Philosophy of International Law
(OUP, 2010) 531, 542.
29
Ved P. Nanda, ‘Humanitarian Military Intervention’
Worldview
(1980) 23. See also Fernando R Tesón,
Humanitarian Intervention. An Inqury into Law and Morality
(Transnational Publishers, 2005), 133.
30
Kevin Ryan, ‘Rights, Intervention, and Self-Determination’ (1991) 20
Denver Journal of International
Law and Policy
55, 57-59.
31
Allen Buchanan, ‘Reforming the international law of humanitarian intervention’ in JL Holzgrefe and
Robert O. Keohane (eds),
Humanitarian Intervention. Ethical, Legal, and Political Dilemmas
(CUP,
2003) 130, 131. See also Independent International Commission on Kosovo,
Kosovo Report. Conflict,
International Response, Lessons Learned
(OUP, 2000) or Thomas M. Franck,
Recourse to Force
(CUP,
2002), 163-70 and chapter 10.