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END NOTES

1. Louis Henkin, Kosovo and the Law of "Humanitarian Intervention," 93 Am. J. Int’l L. 831 (1999).

2. Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), 1962 I.C.J. 151, 157 (July 20).

3. See Vienna Convention on the Law of Treaties, arts. 5, 31-32, 8 I.L.M. 679 (1969).

4. See generally Elihu Lauterpacht, Development of the Law of International Organizations by the Decisions of International Tribunals, 154 Recueil des Cours (Hague Academy of International Law) 414-65 (1976-IV)

5. These resolutions take the view that armed intervention by a state is contrary to the promotion of fundamental human rights and self-determination, unless the intervention is in fact to assist peoples struggling for self-determination. The first of the resolutions, entitled the "Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and Their Independence and Sovereignty," provides in relevant part:

No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic, and cultural elements are condemned. . . . The strict observance of these obligations is an essential condition to ensure that nations live together in peace with one another, since the practice of any form of intervention not only violates the spirit and letter of the Charter of the United Nations but also leads to the creation of situations which threaten peace and security.
G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 11, U.N. Doc. A/6014 (1966), reprinted in 5 I.L.M. 374.

The second resolution, to which was annexed a "Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations," provides in part:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.
G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, 121 (Annex), U.N. Doc. A/8028 (1971).

The third resolution, entitled "Definition of Aggression," enumerates various acts that constitute "aggression," including the "invasion or attack by the armed forces of a State of the territory of another State," and provides that no "consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression." G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, at 142 (Annex), U.N. Doc. A/9631 (1975).

6. See John F. Murphy, Force and Arms, in I United Nations Legal Order 247, 298- 300 (Oscar Schachter & Christopher C. Joyner eds., 1995).

About the author

About the conference

In thinking about options for legal and institutional reform to address the possibility of future humanitarian intervention, a central concern is whether there is a better way of "legitimizing" the resort to humanitarian intervention through either developing a generalized list of criteria that would warrant humanitarian intervention and/or establishing a better process for authorizing humanitarian intervention. In this talk I will address the latter issue, focusing on both on possible modalities of reform and on the practicalities of pursuing different modalities. The different modalities of reform that I will discuss are six-fold. They are:

I. simple maintenance of the status quo;
II.
reform of the Security Council;
III.
use of the General Assembly;
IV.
use of the International Court of Justice;
V. reinterpretation of the role of regional organizations vis-á-vis the Security Council; and
VI. use of other global institutions, such as the U.N. Human Rights Commission or, once it is established, the permanent International Criminal Court.

    I. Simple Maintenance of the Status Quo
    I suppose it’s a bit odd to describe one mode of reform as doing nothing at all, but I think that, before embarking on an effort to reform, it is important to be clear about the disadvantages and advantages in simply maintaining the status quo. According to some, the principle disadvantage of maintaining the status quo is that—in the wake of the Kosovo intervention—individual states and groups of states will undertake humanitarian intervention without some accepted process for global approval. According to others, the principle disadvantage of maintaining the status quo is that states will fail to act to prevent human rights abuses, whether or not Security Council authorization exists or could be obtained. Hence, an interest in reforming the system.

    At the same time, there are advantages to maintaining the status quo. First, many who think that the intervention in Kosovo was unlawful due to a lack of Security Council authorization continue to view such authorization as the best process for authorizing humanitarian intervention. Recall that the whole point in drafting the U.N. Charter was to create a system that—unlike the League of Nations system—would attract participation by the major powers by according them a special status as to when collective security would be deployed and when it would not. By moving away from that system, the special status of the permanent members of the Security Council is degraded, and presumably introduces a level of instability in the system by making the system less attractive to the major powers. Obviously, the intervention in Kosovo itself did this; in the aftermath of the intervention, it seems likely that China and Russia are more suspicious about whether their interests can be protected through the current Charter system. The solution to this problem is not to reform the system so as to further degrade the value of being a permanent member but, rather, to try to return to a greater sense of fidelity to the Charter as written.

    Second, when one thinks about the practicalities of moving away from the status quo, there are severe impediments in doing so. Many suggestions of reform may require an amendment to the U.N. Charter. If this is done expressly, it will be extremely difficult, requiring as it does the assent of two-thirds of the members of the General Assembly, after satisfying their respective constitutional processes, including the assent of all the permanent members of the Security Council. Of course, amendments to the Charter have been made in the past, so this option is not outside the realm of possibility, but it would require a level of consensus about how to move forward that does not exist today and, again, if it cheapens the power of the permanent members, it seems unlikely to happen.

    A further practical problem concerns the current status of the United States in international affairs. For better or worse, the United States is the preeminent military, diplomatic, economic, political, and cultural power in the world. The United States can marshal the resources needed for humanitarian intervention around the globe in a way that simply is not available to any other state. At least in the short run, many are not really worried about lots of other states aggressively invoking the doctrine of humanitarian intervention, at least no more so than they are worried about those states invading neighbors on spurious grounds of self-defense. Instead, many worry about an unchecked United States—perhaps in conjunction with its allies—deploying military force to protect human rights when it wishes to do so, and refraining in situations where it prefers inaction. They would like to see more global approval of the U.S. decision to intervene and perhaps even a global ability to prod the United States into action when it otherwise would stay home.

    All of this, of course, leads to a practical problem: why would the United States want to support a reform that inhibits its ability to intervene or that promotes intervention when it does not want to intervene? And if the United States sees no advantage in such a reform, and therefore fails to support it, what is the likelihood of achieving successful reform?

    All of this is to say that as we consider modalities for reform, I think it important to consider why it would be in the United States’ interest to support such reform, as well as in the interest of the other major powers, and to pursue reforms that would attract their support. I fear, however, that until such time as the United States is less of a dominant power on the global scene, it may prove quite difficult to secure its support for meaningful reform.

    II. Reform of the Security Council
    If one were to pursue reform, the obvious place to start is with the Security Council, which is charged under the U.N. system with the maintenance of peace and security. Two obvious reforms of the Security Council come to mind, which might be achieved by amending the Charter or by simply reinterpreting it.

    The first reform would be to eliminate the requirement for an affirmative vote of the permanent members under Article 27 of the U.N. Charter in situations involving resort to humanitarian intervention. The notion of having Security Council votes that do not require permanent member concurrence is well-known at the Security Council; no such concurrence is currently needed under Article 27(2) for all votes "on procedural matters." Perhaps we could just add in Article 27(2) the words "or on matters involving the widespread deprivation of human rights" or, if an amendment is not possible, simply begin regarding such matters as "procedural" in nature. Under this approach, you would still need the affirmative vote of nine members of the Security Council, thus ensuring some level of legitimacy, but the five permanent members—individual or collectively—could not block a vote authorizing humanitarian intervention.

    Such a mode of reform presents certain practical problems: would it really be clear whether the Security Council was handling a situation of "widespread deprivation of human rights"? Would it not simply invite disputes within the Security Council over whether an action falls within this category, perhaps leading to an effective end to the veto power? And, of course, why would the permanent members support such a change?

    A second possible reform might be to adopt, again by express amendment or simply interpreting the Charter differently, the use of the "inverted veto" on issues of humanitarian intervention. The "inverted veto" basically allows an action to proceed until such time as the Security Council passes a resolution precluding the action. Consequently, it would allow humanitarian intervention unless all nine members of the Security Council voted to stop the action, with the concurrence of the non-permanent members. In the wake of the Kosovo intervention, Louis Henkin saw this as the face of our future. He speculated that "the likely lesson of Kosovo is that states, or collectivities, confident that the Security Council will acquiesce in their decision to intervene, will shift the burden of the veto; instead of seeking authorization in advance by resolution subject to veto, states or collectivities will act, and challenge the Council to terminate the action."1 A practical problem with this reform is that it seems to really let the cat-out-of-the-bag; any permanent member can conduct humanitarian interventions without worry, since it can always veto a Security Council resolution to the contrary. Plus, lots of other states might feel they can conduct interventions if they think they have at least seven Security Council members or any one of the permanent members on their side.

    Now you might be thinking how it would be possible without an amendment of the Charter to have either of these reforms take place. My answer would be that the original meaning of the U.N. Charter can change in light of subsequent U.N. practice, even on core issues relating to the Security Council. The U.N. Charter is, after all, a multilateral treaty ("albeit a treaty having certain special characteristics")2 , one that is subject to the customary rules of treaty interpretation, which take account of both the object and purpose of the treaty and of subsequent state practice.3 Indeed, there is ample World Court jurisprudence supporting the use of subsequent state practice when interpreting the charters or constitutions of international organizations, as well as supporting the use of a principle of effectiveness, whereby the Court seeks to determine the purposes and objectives of the organization and to give to the words in question an interpretation which is most conducive to the achievement of those ends.4

    Thus, although under U.N. Charter Article 27(3), decisions of the Security Council on non-procedural matters "shall be made by an affirmative vote of nine members including the concurring votes of the permanent members," we now know—from longstanding practice—that in fact the concurring votes of the permanent members is not needed; they may abstain and the measure can still pass. Somewhat more abstractly, there is little doubt that Chapter VII as originally drafted was concerned with transnational threats to the peace, but after the Security Council’s authorization of forcible deployments in Haiti, Rwanda, and Somalia, there is equally little doubt now that the Security Council can concern itself with largely internal conflict. Indeed, the entire history of Security Council conflict management is one that finds no clear textual support in the U.N. Charter: despite numerous peacekeeping deployments you will not find the word "peacekeeping" anywhere in the Charter; and despite recent Security Council authorization of forcible deployments—such as the coalition of states that expelled Iraq from Kuwait—those forcible deployments are not anchored in the original scheme of Articles 43-49. So I see no reason why we cannot, through either explicit or implicit consensus, develop interpretations of the Charter that further promote global conflict management.

    III. Use of the General Assembly
    Turning to possible use of the General Assembly, perhaps we should consider developing a process where, if the Security Council is deadlocked on the use of force to protect human rights, the matter could be taken up by the General Assembly. If the General Assembly endorsed the intervention by a state or group of states, then the intervention could proceed.

    It’s not clear that this would actually be a "reform," in that this possibility has always been available, at least since the passage in 1950 by the General Assembly of the "Uniting for Peace Resolution," which was used to authorize deployments in Korea and the Middle East. Alternatively, we might have an "inverse" authorization, meaning that a proposed humanitarian intervention, once notified to the General Assembly, can proceed unless there is an affirmative General Assembly vote that the intervention should not occur.

    There are some technical, legal reasons why the General Assembly should not have this power under the current Charter structure. The way Chapter IV is drafted, the General Assembly is not supposed to act in situations where the Security Council is exercising functions assigned to it, which arguably include a decision not to go forward with any action. Moreover, even if the Security Council is not exercising its "functions," the General Assembly is only supposed to make "recommendations" to the Security Council about how to proceed.

    But leaving aside those legal niceties, which might be fixed by an express amendment or creative interpretation of the Charter, there are also some practical problems. First, the General Assembly’s arrogation of power through the Uniting for Peace Resolution never fully developed during the Cold War despite constant deadlock at the Security Council. The problem was that to conduct any significant military intervention, the financial and military support of one or more of the major powers was needed, and yet those states did not wish to see the General Assembly take the lead in this area, since it would clearly detract from the power and significance of the Security Council. For the United States, this was especially true as the General Assembly mutated over time from something relatively within the control of the Western states to a body entirely outside their control. So, if we pursued this reform, I think the General Assembly would face situations either where—

    1. it might vote in favor of military action but would find no support among those states expected to conduct the action;
    2. it might vote in favor of a military action, and certain states would be willing to conduct that action, but those states neither wanted nor sought General Assembly approval; or
    3. it might vote against a military action, and one or more powers would go forward anyway on grounds that the General Assembly cannot arrogate to itself this power.

    Second, the history of the General Assembly is actually a history radically disfavoring intervention, even for good purposes, as amply demonstrated by the three prominent General Assembly resolutions on non-intervention passed in the 1960's and 1970's. 5 Those resolutions were passed in an era when newly emerging states were reacting to the abuses of colonialism and to the fear of Cold War interference by the major powers, but many of those suspicions linger today. Consequently, I suspect that it would be quite difficult to obtain General Assembly approval of humanitarian intervention. Indeed, we might well ask whether the General Assembly would have approved of the air strikes against Kosovo; my guess is that it would not have. I wonder whether there is some sort of political dynamic within such a large group of states that makes it difficult to undertake radical decisions, such as one to unleash military force; that’s a question perhaps better answered by the international relations specialists in the room.

    Now for those who think humanitarian intervention, on balance, is a dangerous thing, sending the matter to the General Assembly may be attractive, since it might have the effect of preventing all humanitarian interventions unless there is express Security Council authorization. But if that’s the case, we haven’t really made any meaningful reform.

    A third practical problem is that even if you can get General Assembly authorization for a humanitarian intervention, it is not clear (at least to me) why that provides us with greater legitimacy than, say, NATO acting on its own authority. I do not think it is right to view the General Assembly the same way we might view a legislature or parliament in a democratic society. The reality is that, in the General Assembly, a country such as the United States, consisting of some 280 million people, has the same vote as the Republic of Nauru, with a population of 8,000 people. Such disparities in allocation of votes taxes any theory of political legitimacy, particularly since each human rights crisis is of particular concern to some region of the world, not to small countries on the other side of the globe. Put another way, what is it about a majority of the General Assembly—representing perhaps a fraction of the world’s population—voting either in favor of or against a humanitarian intervention that makes the decision more legitimate than NATO’s decision to quell civil unrest in Europe?

    IV. Use of the International Court of Justice
    So as to check off all the boxes of the main U.N. organs, I will turn to the possibility of using the International Court of Justice as a means of authorizing humanitarian intervention. Use of the International Court strikes me as an intriguing possibility for two reasons.

    First, the International Court, in certain ways, is like the Security Council; there are fifteen judges, consisting of five judges from each of the permanent members of the Security Council and ten judges from the different regions of the world. Thus, unlike the General Assembly, this is a relatively compact group of decision-makers, with a heavy weighting in favor of the judges coming from the major powers. However, unlike the Security Council, there is no veto power in the International Court; judges from the major powers can and have been outvoted by the other judges.

    Second, although regarded by some as a bit ossified, the Court is actually a rather serious institution. Anyone who has studied the success of the Court in resolving difficult and conflict-ridden disputes over land and boundary demarcations cannot help but be impressed with its success. There is a certain gravity to the work of the Court and there is a fair amount of fidelity by states to the Court’s rulings.

    The most likely manner in which the matter would be put to the Court would be a request for an advisory opinion from the General Assembly or a competent U.N. specialized agency. Or, if we are thinking about an amendment to the Charter or a creative interpretation, why not regard a Security Council request to the Court for an advisory opinion as being "procedural" in nature, thus circumventing the problem of a permanent member veto?

    As a technical matter, this certainly seems possible, and I suspect the Court would welcome the opportunity to be a major voice in this area. Further, I would take issue with those who think the International Court could not serve this function because it acts too slow. Actually, the Court can act remarkably fast when called upon to do so. I faced this first hand when I served as the Legal Counselor at the U.S. Embassy in The Hague. I was sitting at my desk on Friday April 3, 1998, when I was notified by the Registrar of the Court that the Government of Paraguay had instituted a case against the United States relating to the imminent execution of a Paraguayan national in Virginia. The Court ordered that a hearing be held in The Hague that Tuesday, April 7—just four days later—and then issued an order on Thursday, April 9—just two days after the hearing—ordering the United States should take all measures at its disposal to ensure that the Paraguayan not be executed. Although the Secretary of State asked the governor of Virginia to stay the execution, he declined to do so. My point, however, is that the Court can act quickly when asked to do so.

    A key practical problem, however, is that the Court is just that, a court. It is a place where legal disputes can be brought and resolved, but it is not a political organ capable of weighing complex non-legal variables, such as the efficacy of further diplomatic efforts or the ramifications to regional security if an intervention goes forward. Further, at least as the Charter is currently drafted, I think the Court would have little choice but to vote against humanitarian intervention. To date, the Court has been stickler in interpreting uses of force under the Charter, since its authority derives from fidelity to legal instruments and not to progressive interpretation of the law. That caution is reflected in the Court’s use of force cases to date—principally the Corfu Channel case and the Nicaragua v. U.S. case—and may also be on display if any of the other cases relating to use of force that are currently before it are decided on the merits (those cases concern the Cameroon/Nigeria conflict, the conflict in the Congo, the alleged genocide in Bosnia and Croatia, the U.S. attack on three Iranian oil platforms in 1987-88, and, of particular relevance here, Serbia’s eight cases against NATO for the air strikes against Serbia). So, for the Court to play a role in legitimizing humanitarian intervention, you might have to amend the Charter to take account of humanitarian intervention as a permissible use of force even in the absence of Security Council authorization; such amendment, as I indicated above, seems unlikely.

    V. Reinterpretation of the Role of Regional Organizations
    The next obvious place to look to reform would be the relationship between regional organizations and the U.N. Charter. Chapter VIII of the Charter clearly contemplates the ability of states, operating collectively, to deal "with such matters relating to the maintenance of international peace and security as are appropriate for regional action … ". That language in Article 52(1) is not conditioned by authorization of the Security Council. Only in Article 53(1), where reference is made to "enforcement action," must the collective of states obtain Security Council authorization. Perhaps we should think about amending the Charter (or, again, engaging in creative interpretation) so as to refine the notion of "enforcement action" as understood in Chapter VIII. Just as "enforcement action" probably originally included the imposition of economic sanctions6 but today no longer does, so too perhaps "enforcement action" in Chapter VIII no longer covers uses of force by a collective of states to prevent widespread deprivations of human rights.

    There is some attraction to looking for reform in this area. After all, if we think there is some level of legitimacy derived from the Security Council or from the General Assembly because they represent collectives of states—which presumably softens the bitter taste of unilateral actions—then why not focus on authorization emanating from regional organizations? And indeed, to the extent that there seemed to be some greater legitimacy to NATO’s intervention in Serbia than to, say, the U.S. interventions in Grenada or the Dominican Republic, a not insubstantial part of that legitimacy no doubt derived from the fact that nineteen democratic states operating within a collective thought that the intervention was a good idea.

    But there are practical problems here, too.

    First, what is a regional organization? If you study this area you will find some organizations that have expressly classified themselves as regional organizations, such as the Organization of American States and the Arab League. NATO, however, does not and never has regarded itself as a regional organization. The reason is that NATO has always wanted to be able to act militarily as a defensive alliance, operating under Article 51 of the Charter, and not subject to the prior approval of the Security Council as contemplated in Chapter VIII. There is no reason why NATO cannot reclassify itself as a Chapter VIII regional organization, which it might be willing to do if we amend or reinterpret Chapter VIII so as to not require Security Council approval. But isn’t this an invitation to two or more states to simply declare themselves part of a regional organization, thereby entitling themselves to engage in humanitarian intervention? In other words, is this really a limitation?

    Second, the theory behind regional organizations is that they have obtained consent from their member states to help promote peace and security within the region; that theory breaks down when the regional organization is operating outside the region, such as NATO did in Serbia. So we would need to confront the issue of whether our permissive attitude towards the action of regional organization only covers action within the region or also permits action outside the region.

    VI. Use of Other Global Institutions
    I’ll close by mentioning one other possible mode of reform, which is to make use of other relevant global institutions that have some level of expertise and knowledge in matters relating to humanitarian intervention.

    For instance, the U.N. Commission on Human Rights is expressly charged with worrying about human rights conditions around the world, and regularly receives and considers petitions regarding systematic abuses of human rights by a government. Perhaps the General Assembly could pass a resolution authorizing the Commission, when asked by a state or group of states, to decide whether the conditions exist that would justify humanitarian intervention. Indeed, the Commission already may have been monitoring the country in question for years, such that the Commission would be well-placed to anticipate the escalation of human rights abuses and to decide whether a humanitarian intervention proposed by a state or states was justified. The Russian draft resolution placed before the Security Council regarding Kosovo is relatively well-known. Less well-known is that a similar Russian draft resolution before the U.N.Commission on Human Rights calling for "an immediate cessation of the fighting" and attributing "victims and casualties amongst the civilian population [to] missile strikes and bombings" failed by a vote of 11 to 24, with 18 states abstaining. The Commission was not sympathetic to Serbia’s plight.

    Another possibility would be to make use of the permanent International Criminal Court (ICC), once it is established. The ICC is expected to monitor situations involving crimes against humanity, genocide, and other war crimes, and to issue indictments against individuals in appropriate situations. Recall that on May 22, 1999, the war crimes tribunal for the former Yugoslavia indicted Slobodan Milosevic and his lieutenants, which probably provided some level of credibility to the idea that there existed prima facie evidence of crimes against humanity by Serb authorities in Kosovo. So might we look to ICC indictments as a means of legitimizing humanitarian intervention to stop such crimes? I suppose the idea would be that once the Prosecutor initiates an investigation, which is then authorized by a Pretrial Chamber, if the investigation leads to indictments on charges of ongoing crimes against humanity or genocide, then that would serve as a justification for a state or states to engage in humanitarian intervention.

    There are, of course, some impracticalities to these possibilities for reform. For instance, the ICC may only end up indicting someone long after the atrocities have begun, whereas if you are serious about humanitarian intervention, you would like to act before too many people die. Further, an indictment is not the same thing as a conviction, and therefore using it as a trigger to justify intervention raises some problems about whether we believe that you are "innocent until proven guilty." It also places the ICC in an awkward position if the stakes of issuing an indictment are so high; it might have the effect of coercing or precluding an indictment for reasons other than the perceived guilt or innocence of the individual. And there are, of course, additional practical problems along the lines mentioned above regarding the General Assembly and the Court.

    I suppose I have raised more questions than I have provided answers. Yet as we ponder through our options for the future, I think all possible modes should be kept on the table. so long as we lay down next to them the practicalities as well.


    Copyright retained by author.

    The author, a member of the faculty of the George Washington University School of Law, previously served with the U. S. Department of State Office of the Legal Adviser. He is a graduate of Catholic University, Columbia University, Cambridge University, and the University of Virginia.Professor Murphy has published numerous articles in international law.

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