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Similarly, if intervention is undertaken for humanitarian objectives consequent upon the approval of the United Nations Security Council (UNSC)it does not erode the sanctity of state sovereignty doctrine but becomes legal and legitimate.⁵³⁸ Thus, what is required is a collective global security system that advances a combined obligation for regulating emerging threats and safeguarding human rights of citizen within a sovereign domain while at the same time preserving the hallmark of the challenge posed by Kofi Annan to the international community. It was perhaps in response to the sovereignty of states and humanitarian intervention debate that necessitated the Canadian government to establish the International Commission on Intervention and State Sovereignty (ICISS), which in its report advanced and promoted the principle of Responsibility to Protect (R2P).⁵³⁹ The emergence of this principle was greeted with tremendous support from the member states of the United Nations (UN) and was viewed as a marked departure from the hitherto imprecise humanitarian intervention practice⁵⁴⁰

This chapter examines these competing imperatives of international law, that is sovereignty of states and humanitarian intervention whether it comes within the purview of the UN Charter. It further evaluates the basis and application of humanitarian intervention and its implications on the sanctity of state sovereignty doctrine preserved by the Charter regime. In driving the point home, we undertake the analysis of the classical doctrine of state sovereignty, its seeming paradigm shift to the conception of relative sovereignty and whether the prevailing humanitarian intervention practices have attained the status of customary international law. Furthermore, the legality of the right of humanitarian intervention lacks a clear cut backing in international law which in our humble view deserves urgent consideration.

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stipulation of non-intervention and prohibition against the use of force in international relations.⁵⁴¹ It is a reflection of the dichotomy between the non-intervention principles and the demand of human rights protection of individuals within a sovereign entity. In the propagation of the conception of humanitarian intervention, the proponents of the concept contend that human right violations brought to bear on hapless citizens by despotic government or state‟s non-challant attitude are morally repugnant and that in certain instances military intervention to safeguard these citizens in the target sate is allowed on the basis of humanitarian considerations.⁵⁴²

However, the non-intervention principle prohibits state from intervening vietarmis in the domestic affairs of another state. This is in direct contrast to the application of humanitarian intervention. The principle of non-intervention is considered the foundational basis of international law which finds international statutory expression in the UN Charter.⁵⁴³ Furthermore, it has been committedly reasserted by the United Nations General Assembly (UNGA) and the International Court of Justice (ICJ).⁵⁴⁴

However, the Mechianvalian thinkers, that is, the realist deny the validity of humanitarian intervention while the rationalists posit that state sovereignty is a fundamental principle of international law, but instances of supreme humanitarian emergency may justify humanitarian intervention.⁵⁴⁵ The realists contend that validating humanitarian intervention principle would seriously erode the core basis of international relations fundamentally rocking the stability of the state-centred model of international society in contemporary times. In the views of also the revolutionist, humanitarian intervention is very necessary where states fail to meet the basic requirement of human decency.

Thus, preservation of non-intervention doctrine and protection of human rights are composite components of the United Nations Charter, the regulatory framework of

541M Fixdal& D Smith, ‘Humanitarian Intervention and Just War’ (1998) vol 22, No. 2, Mershon International Studies Review, 286.

542Ibid.

543 Article 2(7)

544 See Military and Paramilitary Activities in Nicaragua Case (Supra).

545 M Desousa, ‘Humanitarian Intervention and the Responsibility to Protect: Bridging the Moral/Legal Devide’

(2001) University College LondonJurisprudenceReview, 54.

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inter-state relations.⁵⁴⁶Consequently, the operation of state sovereignty doctrine should not prelude the functioning of the other aspect of the UN Charter.⁵⁴⁷The underlying thread in relation to the humanitarian intervention and state sovereignty debate is the perennial problem of order and justice in international relations. In one perspective there is the requirement of human rights protection which provides the foundational basis and sometime a disguised platform for humanitarian intervention which is anchored on the demand for justice in appropriate instances contrary to the state‟s demand for order prior to justice.Thus, a state as an independent entity within its sovereign domain possesses the requisite authority to channel the requirement for justice to the requirement of order. In another perspective, humanitarian intervention is considered as an unwarranted incursion into the sovereignty of state particularly championed by the weaker states in that quest for justice against the stronger states imposition of their preferred opinion of international order on the weak state in the name of justice within states.⁵⁴⁸

The Military Intervention undertaken by NATO in Kosovo presented a starting point for the humanitarian intervention and state sovereignty debate with the attendant controversy prevalent under current international law.⁵⁴⁹ The controversy generated in the aftermath of the NATO‟s intervention in Kosovo elicited a wide range of academic discourse in which questions were raised concerning the legitimacy and readability of the model of humanitarian intervention.⁵⁵⁰

It appears that the general consensus favours the prevalence of moral and ethical objectives on the methodology adopted in the application of humanitarian intervention.

However, it is doubtful whether consensus have been attained regarding the conditions and precise instances under which such intervention is considered legally permissible.

Consequently, there is no gainsaying the fact that there is no detail legal instrument under

546 See generally, United Nations Charter 1945 preamble & Article 1.

547 Essentially the ultimate purpose of the United Nations is the preservation of the sovereign equality of states and the promotion and protection of human rights.

548R Falk, “Kosovo, World Order and the Future of International Law’ (1999) vol 93, No. 4, the American Journal of International Law, 852.

549 J Macrae, ‘Humanitarian Aid and Intervention: The Challenges of Integration, Understanding Integration from Rwanda to Iraq’ (2004) vol 18, No 2 Ethics and International Affairs Journal, 30.

550 M Shaw, International Law 5^thed (Cambridge: Cambridge University Press, 2008) pp. 1046-1047.

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international law encompassing human rights protection and the modus operandiof the protection mechanism. ⁵⁵¹

Essentially, the dichotomy revolve around the tension existing between the imperatives of the protection of state sovereignty as encapsulated by the UN Charter and the protection of human rights within a target state arguably sustained and attained through the application of humanitarian intervention. However, in the debate over humanitarian intervention, certain truism exists, intervention often undertaken is characterized by numerous reasons, but humanitarian concerns is often projected as the basis for such intervention. It is important to state here that the decision to intervene is also motivated by a number of factors including political, military and economic interests which are often tailored under the auspices of humanitarian intervention. Notable illustrations here is the humanitarian intervention in Iraq and Libya.

According to the Danish Institute Report, what underlines the humanitarian intervention debate is a perceived tension between the values of ensuing respect for fundamental human rights and the primacy of the norms of sovereignty, non-intervention and self-determination which are considered essential factors in the maintenance of peace and international security.⁵⁵² The cause for concern is the fact that these competing imperatives are encapsulated within the UN Charter as the basic objectives of the United Nations Organization (UNO). The Charter provides adequate protection for state sovereignty doctrine coupled with enforcement mechanisms while on the other hand there is a lack of enforcement mechanisms and protection of human rights in the Charter.⁵⁵³

However, it has been opined that the emergence and development of International Human Rights Law(IHRL) and International Humanitarian Law (IHL)has redefined the Westphalian doctrine of state sovereignty. ⁵⁵⁴The application of the doctrine of state

551 The preamble to the United Nations Charter merely stipulated the objectives of the UN to promote and protect Human Right without enforcement mechanism scheme.

552 Danish Institute Report, opcit.

553 See generally United Nations Charter 1945, Articles 2(4) & (7), 42 and Chapter VII. See also the preamble to the UN Charter.

554 K Bennoune, ‘Sovereignty versus Suffering’ Re-examining Sovereignty and Human Rights Through the Lens of Iraq (2002) vol 13, No. 1, European Journal of International Law, 247-248.

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sovereignty to exercise domestic jurisdiction has been curtailed by the level which human rights matter have attained in contemporary international law.⁵⁵⁵

Accordingly, it has been opined that human rights concerns are no longer exclusively matters within the domestic realm of a sovereign state and that the doctrine of state sovereignty cannot be used by independent states as a cover against responsibility from gross human rights abuses.⁵⁵⁶