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Humanitarian intervention in international law (Essay Sample)
Humanitarian intervention in international law
The humanitarian intervention legal status provides an insightful challenge to the future’s global order. The central question could be easily formulated but very difficult to be answered. There is still no consensus as to whether international law should permit countries to militarily intervene to avert genocide or any atrocity of similar magnitude without the authorization of the Security Council. This question became critical in the wake of interventions of the military in Iraq and Kosovo while there was no intervention in Sudan. An impasse has so far been reached after concerted deliberations on these issues were made. A major obstacle to the legalization of unilateral humanitarian interventions is efforts by certain nations who would want to use it in the pretext of waging war with ulterior motives.
The concerns that states can exploit a humanitarian exception in order to justify military aggression have for a long time dominated government and academic debates. This concern pits values of a humanitarian rescue against the shock of expanded opportunities for an unrestrained war. Those who have been proposing that humanitarian intervention should be legalized have always struggled with the question of people objecting their proposals on the grounds that they would be abused in a pretext for war. The late 19th century saw these proponents be so influential and this was a period in which the international law allowed states to utilize war on several grounds.
This debate has been lost by these proponents in the current era because at various points the terms of discussion have tended to shift. NATOs intervention in Kosovo spurred one of the most farfetched discussions about the credibility of humanitarian intervention and the ability to have it regulated in the post cold war period. However most governments’ consensus on humanitarian interventions favors a case where there is Security Council intervention.
The intervention in the domestic affairs of a state that is sovereign by another state with the same status is one of the hottest debates in the current international law. This debate is hot because there is an ascendency of cases of human rights abuse yet international law right from the very beginning held strongly the concept of sovereignty as its major tenet. Thus the issue of non interference was and is still held in high esteem by many countries. As a matter of fact it is the concept of sovereignty that has been perceived on international diplomatic level as the bedrock of international relations.
Nevertheless the doctrine of Unilateral Humanitarian Intervention (UHI) allows countries to intervene in the domestic affairs of other countries in case there are massive violations of human rights particularly in the form of genocide and mass murder. The humanitarian intervention doctrine is thus an affront to one of the key tenets of international law that is non interference and because of this its validity has been hotly contested. This paper evaluates the doctrine of UHI and its legality.
State sovereignty and the non intervention principle
According to Shen (2001) for the last 20 decades it is state sovereignty that has defined tenets of international relations thus acting as a foundation of world order. This concept is amongst the fundamental principles of international law both under customary international law and the United Nations Charter. Apart from that it plays a very critical role in the upholding of international security and peace while acting as a defense of states that are weak against those that are strong (Michael 1990).
According to Fonteyne (1974) State sovereignty refers to the legal equality, competence and independence of states. Within this concept are all matters that all countries are allowed by the international law to act without compromising the sovereignty of other nations. Examples of such matters include the social, political, economic and cultural systems to be employed by the states. In these important issues a state has freewill to choose the way forward for its citizens without cohesion from any other state.
However several scholars in international law content that the current formulation of international law as far as sovereignty is concerned was highly influenced by the 1648 European agreement in the Westphalia treaties (Gordon 1985). The sovereign authority superiority was established within a system of equal and independent states in order to avoid another war after the First World War this led to the establishment of peace and order in Europe. It is critical to know the pertinent elements of statehood since for any entity to claim rights of statehood it must be a state in itself. The Montevideo convention stipulated the essential elements of a state. These include having a functioning government, a permanent population and a defined territory (Stephen 1995).
According to George (1989) the United Nations charter distinguishes state sovereignty as one of the key tenets of international law. This charter thus adopted the principle of sovereignty equally amongst all states. Flowing from the critical nature of equality of all states the charter sought to prevent the interference in the sovereignty of one country by another sovereign country. The charter went on in its efforts to protect states sovereignty to assert that nothing contained in its current charter shall allow the united nations to intervene in matters that are occurring within the domestic jurisdiction of a state neither shall they require members of such a country to submit issues for settlement under the current charter. As a matter of fact not even this world governing body has the authority to interfere in the sovereignty of any given state.
The international court of justice (ICJ) the key judicial organ of the United Nations recognized the sanctity of the tenet of non interference in the local affairs of states. In 1949 the court pointed out that the respect for territorial sovereignty between states that are independent is a critical foundation for international relations. Three decades later the court asserted that the principle of non interference was the critical precept of state sovereignty on which the entire international law rests (Steve 1993).
Unilateral humanitarian intervention (UHI)
In international law intervention refers to prohibited intervention. There are three forms of intervention depending on the level of cohesion used to interfere with other states. In the first description intervention means recommendatory action, discussion or examination, in the second description it means, taking up cohesive measures but being short of using force, while in the third description it means the use of force while interfering with the sovereignty of another country.
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