Humanitarian Intervention and the Law of State Responsibility

Abstract

The primary rules of international law do not permit states to resort to force for humanitarian purposes. Some scholars have thus attempted to rely on the secondary rules of state responsibility to find a legal basis for forcible humanitarian intervention. In particular, three claims can be identified: that humanitarian intervention is justified; that the state intervening for humanitarian purposes is excused; and that the consequences arising from the intervention for the state acting for humanitarian purposes ought to be mitigated. All three arguments rely either on the defence of necessity, cast as a justification or as an excuse, or on necessity-like reasoning, as the basis for mitigation. This article takes these three claims and draws out the implications of each both within and beyond the law of responsibility. In so doing, this article shows how each of the three arguments is more problematic and less straightforward than it appears at first and that, ultimately, none can provide an adequate legal basis for humanitarian intervention. The legality of humanitarian intervention must be found in the primary rules regulating the use of force in international relations and not in the secondary rules of state responsibility.

Humanitarian Intervention, Support and Objection

“…Like Paddeu said 'it is illegal but justified'. [29] Although the Tanzania's intervention was not in accordance with international law, it is in line with the international community's concept of respect for human rights.…”

Putting to Work the Uncanny: Historical Argument in International Economic Law

“…59 The case law of mixed claims commissions was kept alive by, among others, the Iran-US Claims Tribunal (IUSCT) since the early 1980s, 60 the first reported investment treaty arbitration in 1990, 61 and the eventual codification of State responsibility by the International Law Commission in 2001. 62 Such 'routine legal techniques of repetition and transmission', observes Orford, reinforce the 'authority and meaning' of historical concepts. 63 Yet the open texture of investment treaty standards also lends itself to interpretation in light of counterhegemonic lawmaking, not least the project of economic self-determination embodied in the customary principle of permanent sovereignty over natural resources (PSNR), 64 underpinning the rights of States freely to dispose of natural resources and to choose their own economic systems.…”