Reflections On The Legitimacy Of "Humanitarian Intervention"

Humanitarian Interference has become common in international affairs for a long time, whereas the arguments on the validity of such an action are also ongoing. Humanitarian Interference is a confusing concept in itself, and scholars have never agreed on its definition. As to its validity, most scholars agree that Humanitarian Interference conducted or authorized to conduct by the Security Council is valid, so the focus of the disagreement of the validity lies on whether Humanitarian Interference without the authorization of the Security Council is valid.The basic formation of this thesis begins with the discussion of the definition of Humanitarian Interference, followed by the discussion of theory, jurisprudence and examples of the unauthorized Humanitarian Interference, on the basis of said discussion generated the conclusion that such Humanitarian Interference is not valid, and particularly, this thesis wants to discuss the reasonability and possibility of legalizing the said. The thesis will then emphasize on the validity of Humanitarian Intervention authorized by the Security Council. What this thesis tries to solve are as follows: firstly, whether it is true that only when the humanitarian crisis inside one country is so serious that it threats the peace and security of the neighborhood, the Humanitarian Interference becomes valid. If not, it means a country may intervene a surrounding country solely based on the humanitarian crisis happening inside said country, then what restrictions should be attached in order to avoid abuse? Secondly, whether countries those are not in the neighborhood can participate in the Humanitarian Interference on the basis that a threat to a neighborhood will disturb the order of the global community? As a matter of fact, the discussions concerning the reasonability and possibility of legalizing the Humanitarian Interference and the applicable measures to improve the mechanism of the Security Council are based on the reasoning of said questions.Chapter one will discuss the definition of Humanitarian Interference. There is no standard explanation to it, so this thesis will start with a most commonly accepted definition, i.e., the action that being taken, for the purpose of humanity, to prevent or protect humanitarian crisis happening in another country, without prior consent of government of said country. In this way, the scope of this thesis rules out actions that being invited, Humanitarian Aids conducted by U.N., and military actions conducted for the purpose of rescuing civilians who hold one country’s nationality but live in another country where they are facing urgent risks. In addition, it is worth noting the category of Humanitarian Interference: actions that use force for the purpose of humanity and authorized by the State Council; actions that unauthorized by the State Council, and the former one is not actually a standard Humanitarian Interference. The fundamental distinction between them is whether it is authorized by the State Council. This chapter will then articulate the discussions among Chinese and western scholars with respects to the definition of the concept and distinguish Humanitarian Interference from some similar concepts in international laws to identify its nature, in order to formulate the nature of Humanitarian Interference. Western scholars had an earlier start than Chinese scholars, and have a more severe disagreement among each other than that of the latter. A number of western scholars believe that Humanitarian Interference has become a customary international law. Several scholars from earlier share this point of view, including Hugo Grotius. It becomes popular when L. Fonteyne published his article The Customary International Law Doctrine of Humanitarian Interference: Its Current Validity under the U.N. Charter. This article had such a big influence on many scholars that from the 1980 s to 1990 s the argument of Humanitarian Interference as a customary international law prevailed. But other scholars argues that the reason why there were so many countries conducted Humanitarian Interference in 19 th century is not humanitarianism as they alleged, instead, they were driven by politics, economy, military and other national interests. If to protect human rights is only an excuse rather than a real purpose, this kind of interference is disturbing, and therefore cannot become a custom. In fact, arguments on this area are no longer meaningful since the U.N. Charter has prohibited Unilateral Humanitarian Interference. As a result, the most common theory that modern scholars use to support the validity of Unilateral Humanitarian Interference is that human rights shall exceed sovereignty. They either believe this or believe that protecting human rights is the exception to the doctrine of sovereignty. Those who disagree often emphasizes on the danger when the abuse of Humanitarian Interference happens, they regard it as an excuse of power politics, and believes that any violation of the principle of the sovereign equality of states and the principle of non-interference will lead to the invasion of other countries, and eventually will result in the chaos of the global community. Chinese scholars used to refuse Humanitarian Interference, but this point of view has changed thanks to the adaption to the complex international affairs and the further research.Additionally, there are confusions and differences among Humanitarian Interference and the following concepts: Humanitarian Aid, human rights, and state collapse.Chapter Two will discuss the Humanitarian Interference without the authority of the Security Council. Disagreements in theory will be discussed, followed by examples and analysis of them, in order to articulate the invalidity. The academic disagreement mainly concentrates on the rationality and possibility of legalizing such interference. Although the rationality of such actions leaves room for further discussion, the invalidity of them is for sure. Under theory of law, it is a clear violation of the doctrine of sovereignty, the non-interference principle and the non-force principle,and since all of the principles are provided in the U.N. Charter, is against the charter simultaneously. Other documents of international laws also articulate the prohibition of Humanitarian Interference, for instance, the Declaration on Principle of International Laws that unanimously passed in 1970 by the General Assembly, as well as in the judgment issued by the International Court of Justice on the case of Nicaragua clearly indicates that it is prohibited that one state use military force to solve other states’ humanitarian crisis. Also, it has not become a customary international law based on practice and examples, because it is against international laws and lack of the support from the U.N. and sates. Additionally, there could be a lot potential dangers, for instance, the abuse of such actions, becoming the excuse of power politics and hegemonism, diminishing the authority of the Security Council, and may be cause humanitarian crisis in a bigger scale.The examples mentioned in this thesis are the 1991 Kurd safe area and 2011 Libya no-fly zone. The analysis will again focus on the Security Council Resolutions to prove that these two actions were taken without real authorities, and therefore are illegal. As to the necessity and possibility of legalize the Unilateral Humanitarian Interference, it will not be necessary and possible in a short period of time since all the purposes and effects than the unilateral actions can achieve are also achievable by the collective actions as long as it undertakes some reasonable improvements.Chapter Three discusses the Humanitarian Interference authorized by the Security Council. In fact, this kind of action cannot be called as Humanitarian Interference, and its validity is beyond doubt. This chapter will start with the structure and functions of the Security Council, followed by its shortage and possible improvements, and will end with examples to indicate its widely accepted validity. The examples mentioned are the actions against Somalia in 1992 and Yugoslavia in 1993, respectively. The series of the Security Council resolutions to Yugoslavia specifically emphasized on the influence imposed by the conditions inside Yugoslavia to surrounding states, whereas in the final resolution to Somalia this influence was ignored and thought that the conditions inside the state itself was enough to take actions. The Security Council’s practice of Humanitarian Intervention in the 1990 s shows that chapter 7 of the U.N. Charter is not only limited to invasion or military threat to international peace and safety, but also includes the situations that the Security Council considers as emergency inside a state and the government of the said state could not resolve the situation, regardless the existence of the influence imposed to surrounding states.Some actions taken by the Security Council have force of international laws, including special courts, sanctions and other actions taken according to Chapter 7. Interference actions are necessary in order to fulfill the aims and missions of the United Nations, to put it simple, the morality of its actions enables them to be widely recognized, and play a very important role in maintaining international peace and safety. Principles of non-force and non-interference are provided in Article 2 Clause 4 and Clause 7 in the Charter, respectively, and the exceptions provided in Clause 7 are the basis on which collective humanitarian interference is justified. But the Charter also provides strict restrictions when applying the exceptions. The mechanism of the Security Council is not perfect, although the voting system can eliminate political considerations to some degree but it also causes inefficiency, and leads to failure of resolve humanitarian crisis in time. To improve such a system, the focus should be on the processes of investigation and final decision.The last chapter not only includes the summary of the whole thesis, but also articulates some restrictions that should be imposed on interference actions that are to be conducted for the purpose of resolving humanity crisis: this kind of action can only be legalized under the stringent control of the Security Council, and the final decision of whether take such action is under the sole discretion of the Security Council.