Experiment

253 CHAPTER FIVE

STATE SOVEREIGNTY VERSUS HUMANITARIAN INTERVENTION:

RECONCILING THE CONFLICT

254 framework on the use and non-use of force and the authority to use force does not include humanitarian ground.

The question then is how to resolve tension or dilemma between sovereignty and intervention within the framework of the UN Charter. When a state actor is the one violating the provisions of international humanitarian law, how does the international community respond while still respecting the sovereignty of the target state, which in essence requires that a sovereign state be treated as an independent political unit, its territorial integrity be respected, and it be allowed to pursue its domestic affairs without external interference.

These stipulations are essentially those regulating inter-state relations that have evolved since the peace of Westphalia and have been codified as core principles of international law.

5.1.1 Prohibition on Non Use of Force

The Security Council has the power and primary responsibility under the UN Charter for the maintenance of international peace and security.⁴¹⁹ However, the UN Charter forbids the UN from interfering in the internal affairs of its member nation. But the most important provision of the UN Charter on the non use of force against a member state is article 2(4) of the Charter. In international relations, forcible intervention in another state is prohibited under Article 2(4) of the United Nations Charter which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

419 See Article 24 of the UN Charter

255 This general prohibition on the non use of force has been confirmed by the International Court of Justice in the Corfu Channel Case⁴²⁰ and the Case Concerning Military and Paramilitary Activities In and Against Nicaragua⁴²¹ and is considered to be a rule of jus cogens – that is, a peremptory norm of international law from which no subject of international law may derogate. Therefore, the international legal framework on sovereignty protection has been identified as a customary international law. Under this Charter provision, sovereignty is firmly protected and there can be no external intervention except pursuant to the provisions of the Charter. Whereas Article 2(4) of the Charter provides for non-intervention or interference into the internal affairs of another state thus shielding sovereignty from external aggression, pro-intervention activist calls for intervention on the basis or article 39 of the Charter. The only exception to this general prohibition is clearly stated in the same Charter. The two exceptions⁴²² are the right of a state to use force in self-defence or collective self-defence under Article 51 of the Charter, and the right of the Security Council under Article 42 to authorize the use of force to maintain or restore international peace and security.

Before doing so, the Security Council must first determine that there is a threat to peace and security. This is because article 39 of the UN Charter places that obligation on the part of the Security Council to take such action as is necessary to maintain or restore international peace and security. It is pursuant to this provision that the UN Security Council sometimes rely on to approve humanitarian intervention on the ground that it constitute a threat to international peace and security.⁴²³ As a result, it has been submitted that acts of genocide as defined in the Genocide Convention may trigger an obligation by the UN Security Council to act to prevent

420 Corfu Channel (United Kingdom v. Albania), International Court of Justice 1949, ( I.C.J.) 4

421 Military and Paramilitary Activities(Nicaragua v. United States), International Court of Justice, (Nicaragua v.

United States), 1986 (I.C.J.) 14

422 . See Murphy Sean, Op.cit for his discussion of possible exceptions with respect to rescue of foreign nationals and humanitarian aid drops.

423 An example is resolution 688 in Iraq in 1991. The resolution relied on the cross boarder effect of the refugee flow to hold that it constitute a threat to regional security and thus requiring intervention.

256 or stop such actions.⁴²⁴ However, Murphy is of the view that till date the notion of a „duty to intervene‟ by the United Nations, regional organizations, or states does not appear or exist presently in international law.⁴²⁵ It has been strongly argued that where crimes against humanity are being committed “and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community” to halt the acts of violence and protect human rights.⁴²⁶ Unless any humanitarian crises is such that is considered a threat to international peace and security, the Security Council‟s alleged moral obligation to intervention in the territory of a sovereign state is a violation of positive international law. There is no statutory provision for humanitarian in international law but there is provision on sovereignty in the Charter. The absence of such provision for humanitarian intervention is the main source of conflict because any intervention into the territory of another is a violation of international law. Except of course, the intervention has been approved by the UN Security Council.

5.2 Towards a Normative Compatibility Between Sovereignty And Humanitarian