Rethinking the Legality of Intervention by Invitation: Toward Neutrality

Abstract

Abstract The article re-examines one of the most established and classical doctrines in international law, with a massive body of literature—intervention by invitation. The doctrine is straightforward and intuitive, and therefore compelling. Since the use of force or intervention in the domestic affairs of a state is prohibited, the consent of the ‘state’ itself could, naturally, eliminate the wrongfulness of the act. There is contention that the ‘government-preference’ principle of intervention by invitation affords a ‘clear alternative’ to external intervention authorized by the Security Council (‘UNSC’)[ Wippman (1996, Duke Journal of Comparative & International Law, 7, 209)]. Others, however, stressing the momentous nature of current events, believe that ‘democratic legitimacy’ is fundamental. The present author finds both approaches inadequate. In many cases, the complexity of intervention by invitation in both cases is, inevitably, reduced to the issue of recognition: ‘Who can speak for a state?’[We can see such tendency in many works on the topic such as: 2016, Byrne, Journal on the Use of Force and International Law, 3, 97, 100; Wippman (1996, Duke Journal of Comparative & International Law, 7, 217–22; Oppenheim and Lauterpacht, International Law, 7th edition (Longmans Green 1952), 249; or Fox, ‘Intervention by Invitation’ in Weller M (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press 2015), 831–35.]. The latter is a highly political question. The law, then, is left undetermined, and actions are explained by the government’s political preferences and its rhetorical appeal to so-called international community values [Falk (ed), The International Law of Civil War (The John Hopkins Press 1971), 28]. Inspired by general neutrality approach, the author will evoke available theoretical principles and state practices to form a theory of the Equality of internal actors, (hereinafter ‘Equality theory’), in the hope of proving the relevance, reliability, consistency and overall superiority of this theory in dealing with the legality of intervention by invitation.