HUMANITARIAN INTERVENTION AND
REGIONAL ORGANIZATIONS
GIF Photo     BACKGROUND   ISSUES

BACKGROUND

Setting
        The international law realm has for some time struggled with two distinct and contrary legal principles: state sovereignty, and humanitarian justice.   It had been almost a truism of international law for centuries that non-intervention of state sovereignty superseded humanitarian intervention before it. [1] .  That view, however, has waned since the creation of the United Nations Charter in 1945.  A furious legal debate has grown regarding the place of humanitarian intervention in relation to state sovereignty; great scholars today argue whether there is an implied humanitarian intervention norm within the context of the principles of the UN Charter.

        Actions, however, speak louder than words- and no more so than in the realm of international law.  International law is based almost entirely on the values and norms of state action, and must change to reflect the applied norms of the international community.  In light of the growing trend of states employing humanitarian intervention, and in light of the growing acceptance by the UN (the forum of the international community), this paper argues there is today an established norm for the legal use of force by regional organizations for humanitarian purposes without UN Security Council approval.

        Regional organizations have performed this action in the past, and will likely be called to do so even more in the future.  The Kosovo War established the legality of regional organization intervention; a similar action against the Indonesian government by a regional organization would have been legal under international law as well.  Through this trend in international law, we indeed have entered a brave new world of humanitarian protection from sovereign government humanitarian aggression.
 

Humanitarian Intervention as a Principle
        Humanitarian Intervention is generally defined as ³the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights.²[2]   It developed out of the tradition of Just War and protection of nationals, and has arguably grown into a full-fledged principle under international law.

        Until as recently as the early 1990s there was great consensus that under international law a state could treat its own nationals according to its discretion.[3]  Sovereignty, that all-powerful legal principle bracing Article 2(4)[4]  of the UN Charter, prohibited virtually any use of force outside of Article 51 defense[5]  from outside coercive aggression.  Indeed, Brownlie surveyed modern international legal experts and found that: ³In the lengthy discussions over the years in the United Nations bodies Š the variety of opinions canvassed has not revealed even a substantial minority in favor of the legality of humanitarian intervention.²[6]  Opponents of intervention legality state forcefully that the article 2(4) prohibition applies not to the purpose of force, but the act of force itself. Additionally, Wolf adds: ³It was the unabashed intent of the [Charter] framers to assure that there would be no exception to the prohibition on the use of force other than for self-defense.²[7]

        However, there has been intense debate throughout the international legal community about how far this prohibition on Article 2(4) non-defensive use of force extends.  Some scholars have argued that because the force of humanitarian intervention is not directed at the territorial integrity or political independence of the state, it does not fall under the aggressive use of force prohibition of article 2(4)[8].   More powerfully, scholar Richard Lillich counters Brownlie by noting that: ³Events during the past decade reveal a widening Œcredibility gap¹ between the absolute non-intervention approach to the Charter which [Brownlie] espouses and the actual practice of states.²[9]

        Lillich has also noted the growing acceptance within the UN Security Council to characterize internal human rights violations as international 'Turbulence in Indonesia'breaches of peace and security under Article 39[10] , in recent cases such as the Gulf War, Post-Gulf War Iraq, Somalia, and Haiti.   Gulf War Resolution 678 authorized member states to ³use all necessary means² to uphold international peace, while post-Gulf War Resolution 688 was the first time the Security Council characterized severe human rights deprivations having little external effects as a threat to international peace and security.[11]  Resolution 794 invoked Chapter VII authorizing member states to ³use all necessary means² to establish humanitarian relief operations in Somalia, and made no mention of refugee flows as the cause of threat to international peace.  Lastly, Resolution 940, authorized a multinational force to use ³all necessary means² for forcible intervention to end the human rights violations in Haiti, a significant general precedent for the legal framework of UN-authorized humanitarian intervention.[12]

        Finally, it is significant to note that even those such as Wolf who find no direct context for humanitarian intervention in the language of the UN Charter itself, see an absolute prohibition on all forms of humanitarian intervention unrealistic: ³The reality of current state practice, however, has rendered the absolute prohibition of the Charter meaningless.  Thus, there exists a compelling need for a contemporary and realistic interpretation of article 2(4) based on state practice that recognizes an exception to the Charter prohibition when force is required to prevent mass slaughter.²[13]   It now seems that despite the absolutist language of the UN Charter, collective humanitarian intervention undertaken or authorized by the UN, usually under Chapter VII powers, is an accepted norm of international law.[14]
 

Regional Organizations
         Despite the growing acceptance of humanitarian intervention in general, the use of force by regional organizations not authorized by the Security Council has been, until Kosovo, firmly rejected in international law.  Humanitarian intervention by regional organizations, as envisioned within the UN Charter, would fall within the UN-authorized enforcement action of Article 53[15]  of Chapter VIII.  It also is not covered as defense against armed attack under Article 51, nor, by definition, does armed intervention fall within the pacific settlement of disputes scope of Article 52.[16]

        Some scholars have noted that Article 53 may be interpreted loosely to allow enforcement actions for international peace by regional organizations acting within their coSerbsmpetence against their own member-states, but a strict construction of Article 53 requiring UN authorization is usually applied when a regional organization acts against non-members.[17]    However, even the UN has not strictly adhered to a strict Article 53 construction, as evidenced by the 1994 humanitarian intervention into Liberia by the regional organization ECOWAS.  Despite not authorizing it, the Security Council essentially blessed the intervention anyway by organizing a cooperative UN-ECOWAS peace-keeping arrangement following the action.  Thus, despite the general principle that Security Council authorization is
needed for any regional organization enforcement action against a non-member, state practice and UN reaction seems to have provided uncertainty to this rule.

         Indeed, there are strong policy reasons for encouraging the use of regional organizations to protect international peace through humanitarian intervention.  First, regional organizations are closer to the ³front line² of humanitarian crises, and best situated to sound the warning against threats to human rights and international peace. Regional organizations are also most familiar with the regional source of the threats, as well as methods of force and diplomacy to prevent them.  Regional organizations also stand the best chance of ending or preventing human rights atrocities before they reach the threshold needed to spur international action.  Finally, regional organizations naturally incorporate their Œspheres of influence,¹ and use of Article 53 naturally plays to their ability to settle disputes and ensure peace in their regions.[18]  In the words of Richard Falk, ³disillusionment with [reliance on the UN] is likely to produce, at least temporarily, a reduced role for the United Nations, and a greater reliance on regional actors, dominant states, and instances of an outright refusal to act.²[19]

        Thus, there was before Kosovo strong legal and policy justifications for some legality of regional humanitarian intervention without UN authorization.  The results of the Kosovo War have removed any doubt.