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Ett (o)tillåtet undantag eller en (ny)etablerad regel?: - En studie av den nuvarande folkrättsliga regleringen av humanitär intervention
Örebro University, Department of Behavioural, Social and Legal Sciences.
2008 (Swedish)Independent thesis Basic level (degree of Bachelor), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

Abstract

This essay has as its purpose to discuss the current legal regulation of the concept of humanitarian intervention. The inconsistencies in the debate over the legal status of this concept, and the legal uncertainty it brings to the acts of states and the lives of their nationals is a motivating factor for the writing of this essay. However, it has been clear from the outset that the concept of humanitarian intervention is intricately connected to political and moral ideas and values. Thus, the attitude taken towards this doctrine will be highly dependent on the perspectives of the state, government or single author representing it.

Following this starting point, the aim of this essay is not to present a single answer as to whether humanitarian intervention is, or is not, legal, but to research, compare and analyze the different arguments put forward in this subject in international law today. Hopefully, this will provide the reader of this essay with some insight into the sources of international law of today and how the principles of state sovereignty, non-intervention, the prohibition of force and the protection of human rights relate to the concept of humanitarian intervention.

A frank overview of the UN Charter does not support use of force except in the case of self-defence or without a Security Council mandate. Because of the unique character of the Charter and the UN system itself, any interpretation of the Charter will have to consider not only the letter of the Charter but its founding purposes and principles, as well as its function and tasks in international society today. Taking into account this wider perception of the Charter, there have been propositions to interpret the key articles and principles on the use of force in the Charter in such a way that the concept of humanitarian intervention completely circumvents the prohibition on the use of force and the principle of non-intervention. This interpretation, however, has been rejected by the currently most authoritative writers in international law and has received a, to say the least, mixed support among the community of states. The main reason for this is that such an interpretation of the Charter overlooks the travaux preparatoires of the Charter as well as the purposes and functions of the UN, and would produce a result contrary to the peace-building aims of the UN.

As regards the state practice connected to the relevant regulations of the UN Charter, this essay has shown that the consistency, generality and uniformity of this practise is not sufficient to conclude that a new interpretative regime has been accepted by the states that would allow for humanitarian intervention beyond what is provided for today by the explicit support of the UN Charter. Neither has the claims of a customary rule allowing humanitarian intervention, independent of the rules of the UN Charter, been proved to exist as a result of consistent state practice and an accompanying opinio juris. Still, states have been seen to resort to the use of force claiming a right to humanitarian intervention, and there is recognition of such a doctrine in the writing of several authors. This perception may partly be a consequence of the American dominance in the writing on the subject, and the selectivity that such a limited perspective brings to the overview of the legal position of humanitarian intervention. However, there is proof in the practice of the UN and the instruments concluded by states within the UN system of a new perspective of the state and its responsibility towards its own citizens. Coupled with the emergence of human rights instruments within the UN, there is a possibility that this perspective will bring changes in the values and workings of the UN system and the community of states as a whole. This change may perhaps in the future allow for a doctrine of humanitarian intervention in cases of extreme humanitarian distress.

However, the risks of misuse of such a new right, as well as the difficulties of formulating a set of criteria for this doctrine that would encompass the will and interests of all states demand that such a development, however mindful of the urgency of the human suffering necessary to counter with such a doctrine, will have to take its time and be conducted with great care to produce a sustainable result.

Place, publisher, year, edition, pages
2008. , 40 p.
Keyword [en]
humanitarian intervention, non-intervention, prohibition of force, human rights
Keyword [sv]
humanitär intervention, icke-intervention, våldsförbudet, mänskliga rättigheter
National Category
Law
Identifiers
URN: urn:nbn:se:oru:diva-2677ISRN: ORU-BSR/RÄT-C--08/0101--SEOAI: oai:DiVA.org:oru-2677DiVA: diva2:136548
Uppsok
samhälle/juridik
Supervisors
Examiners
Available from: 2008-12-09 Created: 2008-12-09

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