Moral imperatives and legal realities: the perennial conundrum of humanitarian intervention

This is the author accepted manuscript. The final version is available from Brown University via the link in this recordArticle 1 of the UN Charter embodies a well-known tension that exists in international law. On the one hand, it sets out perhaps the most fundamental purpose of the UN: the maintenance of international peace and security. This principle underpins the operation of the post-World War II rules-based international order. It is reflected in Article 2(4) of the UN Charter, which prohibits the “threat or use of force against the territorial integrity or political independence of any state.”1 Such prohibition, while routinely flouted by states, stands as an intransgressible rule of international law. 2 On the other hand, Article 1 establishes what appears to be an equally foundational principle: promoting and encouraging respect for human rights and for fundamental freedoms. Indeed, the burgeoning body of international human rights law that has arisen since the signing of the Charter has increasingly placed human rights and human security at the center of international concern. The question under consideration, therefore, is what happens when these two foundational principles of the post-World War II order collide? If a state perceives a moral imperative to use military force to respond to egregious breaches of human rights occurring in the territory of another state, can these principles be reconciled to allow military intervention in that state under the current rules of international law? Furthermore, regardless of the present position under international law, should a right that allows states to intervene in this way be recognized? This is the conundrum of humanitarian intervention. For this author, international law does not, and should not, recognize a right of humanitarian intervention