CYIL 2012

ARMED INTERVENTION IN CONTEMPORARY INTERNATIONAL LAW argues that a radical doctrine of non-intervention is, despite its flaws, preferable to the principle of humanitarian intervention. He maintains that international law does not recognise humanitarian intervention and considerations of policy strongly counsel against recognition in the future. Furthermore, in his view arguments for humanitarian intervention misconstrue the nature of the interaction of law, morality and policy. 35 F.R. Tesón argued that the right of humanitarian intervention is “consistent with the United Nations Charter and positively supported by state practice.” 36 Also, A. D’Amato in a foreword to Mr. Tesón’s book resolutely stated: “When interference is morally required, then we must interfere.” In Mr. Tesón’s view humanitarian intervention is “one particular instance of use of force”. He argues that “forcible action to stop serious human rights deprivations is permitted by international law”. He defined humanitarian intervention as “the proportionate transboundary help, including forcible help, provided by governments to individuals in another state who are being denied basic human rights and who themselves would be rationally willing to revolt against their obsessive government.” He centred his inquiry on two types of humanitarian intervention, the first he called “the forcible transboundary action undertaken for the purpose of protecting the rights of individuals against violations by their own governments.” The second one he described as intervention “undertaken by a state (or group of states) to protect its (their) own nationals, whose rights are being violated by the target government – the rescue missions”. 37 Sometimes it has been doubted whether this kind of intervention (rescue mission) can really be called “humanitarian”. 38 The doctrinal debate on the legality and validity of humanitarian intervention will continue. On one side there are views that no international legal instrument permits intervention to maintain or impose a democratic form of government in another state, that the justification for the sake of democracy has never been accepted and foreign intervention prevents the genuine development of democracy, and that nothing in the UN Charter or in any legal instrument recognises defence of nationals as a justification for armed intervention. Ambassador J. Kirpatrick after the US invasion of Grenada in 1983 argued that Art. 2 (4) provides “ample justification” of other use of force “in pursuit of the other values also inscribed to the Charter – freedom, democracy, peace”. On the other hand some authors (e.g. D’Amato, W. M. Reisman) maintain that human rights law demands intervention against “tyranny” and that international law is on “the path to a new nonstatist conception that “changes previous non-intervention formula”. 39 35 Donelly J., see note 14, p. 312. 36 Tesón F. R., Humanitarian Intervention: An Inquiry into Law and Morality , New York 1988, p. 245 37 Ibid pp. 3-4. 38 Donnelly J., see note 14. 39 Different views of different scholars were expressed in D’Amato A. (ed.) International Law Anthology, Anderson Publishing 1994, pp. 208-224; The view of J. Kirpatrick (Dept. State Bull. No 2081, Dec. 1983 p. 74) was quoted in this publication at p. 210.

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