Humanitarian Intervention: A Contemporary Interpretation of the Charter of the United Nations

Celeste Poltak

ABSTRACT

The notion that a state may have the right to use force to alleviate a humanitarian catastrophe, without authorization from the Security Council, has been the subject of vast debate within international legal scholarship. The legality of humanitarian intervention at international law has been challenging to resolve because it brings an array of fundamental, and potentially conflicting, international legal principles into the foray: traditional precepts of state sovereignty, domestic jurisdiction, the prohibition on the use of force, and the protection of basic human rights.

This discussion seeks to examine whether it is possible for the Charter of the United Nations to legally accommodate the use of force in order to alleviate a humanitarian catastrophe. At this particular juncture, state practice is embryonic and does not by itself conclusively support the notion that there is a right to military intervention, without Security Council authorization, even in cases involving humanitarian disasters. However, while the terms of the Charter seem clear, in that Article 2(4) contains an absolute prohibition on the use of force, Article 2(4) may nevertheless lend itself to a narrow exception. The idea that the well-founded prohibition on the use of force is capable of exception in cases of extreme humanitarian need is consistent with: (i) the principles of interpretation applicable to constituent documents, (ii) the evolution of the human rights paradigm at international law, and (iii) the evolving notion of a "threat to the peace." While the core prohibition on the use of force remains as relevant in the twenty-first century as it did in 1945 when the Charter first came into force in order to preserve a stable global order, the international context in which the prohibition was first articulated has changed. The longevity of a constitution or constituent treaty rests largely on its ability to adapt to the changing needs of the context in which it functions. Moreover, carving out a restrictive exception to the prohibition on the use of force in cases of humanitarian catastrophes involving the large scale loss of life is consistent with the overarching goals and purposes of the Charter and contemporary international law.

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Citation: (2002) 60(2) U.T. Fac. L. Rev. 1.
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