Proper authority and international authorisation

Abstract

Legal scholars are split as to whether the UN Charter confers a right of humanitarian intervention upon the Security Council. Those convinced that it does typically cite the article which empowers the Security Council to sanction the use of force in response to ‘any threat to the peace, breach of the peace, or act of aggression’. Their antagonists deny that this translates into a right of intervention. ‘The peace’, they say, refers specifically to the peace between states , which is not threatened by human rights abuses that occur entirely with a sovereign state’s borders. A common response is that the Charter leaves it to the Security Council to determine what constitutes a ‘threat to the peace’, and the nature of the peace to which this refers. But what of Article 2(7), which explicitly disclaims any authority of the United Nations to ‘intervene in matters which are essentially within the domestic jurisdiction of any state’? Apparently this has no bearing on the issue, since the violation of human rights is not something that is ‘essentially within the domestic jurisdiction’ of individual states; it is the legitimate concern of the international community. The debate rages on. Among those who agree that the Charter does give the Security Council the right to prosecute (or authorise) armed intervention in defence of human rights, there is a further divide between those who believe that the UN enjoys this right exclusively , and those who maintain that intervention by a regional organisation, an ad hoc coalition, and even an individual state can also be lawful under certain circumstances. Article 2(4) prohibits states and coalitions from ‘the threat or use of force against the territorial integrity or political sovereignty of any state’. But whether this proscribes unauthorised intervention is an open question. It all depends on how ‘territorial integrity’ and ‘political sovereignty’ are interpreted. Some have suggested that only conquest violates ‘territorial integrity’, and that anything short of political subjugation leaves sovereignty intact. Thus humanitarian intervention, whether sanctioned by the UN or not, is (or can be) consistent with international law as long as it results in neither of the above.