Deconstructing the legality of humanitarian intervention under positive international law

Abstract

In recent time, particularly following the end of the cold war, many commentators on international law have argued that sovereignty and domestic jurisdiction must yield to international humanitarian needs. The end of the Cold War and the concomitant vitality of the United Nations Security Council have encouraged a large amount of energy and literature advocating humanitarian intervention. We have witnessed an upsurge in multilateral military interventions in intrastate affairs in the name of humanitarianism and in most cases the intervention are justified on moral grounds, the need to save people from amss atrocity crimes and offences of grave breaches as stipulated in Geneva Conventions. The paper tries to ascertain whether the primacy of state sovereignty as encapsulated in the Westphalian Treaty is actually yielding to a morally underpinned right to intervene in intrastate affairs for humanitarian reasons? In view of the current Charter provisions on the protection of sovereignty, the paper inquires whether it is possible to undertake humanitarian intervention without breaching positive international law?. This essay examines the evolution of state sovereignty and domestic jurisdiction under a positive law framework. It analyzes the moral, political and legal aspects of humanitarian intervention; and determines if humanitarian intervention can be carried out within the margins of positive law. Despite efforts by interventionists to distort the provisions of the UN Charter to accommodate humanitarian intervention, this analysis demonstrates that this notion of humanitarian intervention cannot be reconciled with positive law under the current Charter system.

Keywords: Humanitarian Intervention, Positive International Law, Legality of, Critique