IX. HUMANITARIAN INTERVENTION

The contemporary international law of humanitarian intervention also reflects a fiduciary conception of international legal order. During international law's classical era, debates over the legality ofhumanitarian intervention were closely entwined with a fiduciary theory of state sovereignty. Influential scholars such as Vitoria, Grotius, Pufendorf, and Vattel defended humanitarian intervention on the ground that the law of nations would permit all states to intervene as fiduciary "guardians” for peoples who were unable legally or practically to cast off the yoke of a tyrannical ruler without foreign assistance.[1] Vitoria argued, for example, that Spanish rule in the Americas could be justified to protect indigenous people from the "tyrannical and oppressive acts” of their own rulers, including human sacrifice and cannibalism.[2] Grotius likewise contended that if monarchs "provoke[d] their people to despair and resistance by unheard of cruelties,” they would thereby "lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations.”[3] Although Grotius believed that subjects lacked legal capacity under the law of nations to rebel against their sovereigns,[4] other states could serve as surrogate guardians for the purpose of protecting a people's right to humane treatment.[5] In Grotius's view, the fiduciary structure of guardianship offered a legal framework for humanitarian intervention: whenever a state ruptured its own fiduciary relationship with its people through acts of intolerable cruelty, international law authorized other states to stand in as temporary surrogate guardians for the purpose of exercising an oppressed people's right of collective self-defense on their behalf.

Though perhaps well-intended, in practice this guardianship account of humanitarian intervention served as a pretext for colonialist domination. Robert Williams has shown that the guardianship account "provided Western legal discourse with its first secularly oriented, systematized elaboration of the superior rights of civilized Europeans to invade and conquer normatively divergent peoples.”[6] By the middle of the sixteenth century, the Spanish crown formally embraced Vitoria's rendering of humanitarian guardianship, while largely ignoring its implications for the rights of indigenous peoples. Whereas Vitoria had stressed that Spain should seek every opportunity to promote security and individual rights in the New World through persuasion rather than the sword, Spanish statesmen employed Vitoria's guardianship theory primarily as a mandate for military conquest and imperialist exploitation.[7] Other colonial powers were also drawn to the concept of humanitarian guardianship and cited it regularly (albeit not uniformly) as justification for their own exercises in empire-building. For example, when King James I of England authorized the Virginia Company to establish what would become the Jamestown Colony, he emphasized its humanitarian purposes included to "bring the Infidels and Savages, living in those Parts, to human Civility, and to a settled and quiet Government.”[8] Such was the power of the fiduciary theory of colonial governance that European nations would continue to characterize Western powers' authority over colonies and protectorates in these terms for over a century, as reflected in the 1884-1885 Berlin Africa Conference's affirmation of the "civilized” world's continuing obligation "to watch over the preservation of the native tribes, and to care for the improvement of the condition of their moral and material wellbeing.”[9] During the nineteenth century, European powers also claimed "an imperious humanitarian duty” to safeguard the peace and protect the vulnerable peoples of Greece, Syria, and Lebanon from the Ottoman Empire's "barbarous” aggression and oppression.[10] In each of these settings, conceptualizing intervention as a benevolent guardianship provided a formal legal framework that facilitated the subjection of "uncivilized” peoples to Western governance.

In the twentieth century, humanitarian intervention became subsumed within the Security Council's mandate "to maintain or restore international peace and security.” The U.N. Charter did not expressly commit responsibility for preventing or suppressing human rights violations to the Security Council. Beginning in the early 1990s, however, the Security Council began to interpret its Chapter VII powers broadly to encompass humanitarian intervention. For example, in 1992 the Security Council endorsed a proposal from the Secretary-General "to establish a secure environment for humanitarian relief operations in Somalia” without Somalia's consent.[11] This proposal called for the United States to take the lead in organizing a multinational operation under "unified command and control” to establish security and address widespread famine throughout Somalia.[12] Subsequent years would witness the Security Council authorizing responses to humanitarian crises in Bosnia-Herzegovina, East Timor, and Sierra Leone.[13] During the 2011 Libyan revolution, the Security Council responded to war crimes and other human rights abuses by authorizing states to protect noncombatants and enforce a no-fly zone over Libya.[14] Although the Charter provides thin support for the idea that the international community may intervene in the internal affairs of particular states without a clear threat to international peace and security, over time states have generally accepted the Security Council's prerogative to authorize humanitarian intervention.

This move to coordinate international humanitarian intervention through the Security Council has been widely characterized as reflecting the international community's assumption of a collective responsibility to protect (R2P) peoples of the world from oppression when states flagrantly abuse their sovereign powers.[15] The fiduciary model of state sovereignty supports this account by underscoring states' shared responsibility as fiduciaries of humanity to establish a regime of secure and equal freedom for humanity. under the fiduciary model, the international community's collective responsibility to protect derives from the individualized fiduciary responsibility that each state bears to contribute to the establishment of a just international order for the benefit of humanity. This responsibility is not a perfect legal duty, in the Kantian sense, because it is impossible to specify with precision what steps the international community must take to satisfy its collective responsibility to protect in any given crisis. Nor does the R2P principle specify which particular states, international institutions, or regional organizations should take the lead in conducting a particular humanitarian intervention.[16] Nonetheless, the fiduciary model supports the idea that international law confers authority upon the international community, acting collectively, to intervene in the jurisdiction of individual states as necessary to guarantee fundamental security under the rule of law.

The fiduciary model emphasizes that the direct legal and moral beneficiaries of humanitarian intervention are not states ut singuli or the international community collectively, but rather the people of a state that is unable or unwilling to respect, protect, and fulfill its people's human rights. Just as international law entrusts states with authority to wield public powers as fiduciaries on behalf of their people, international law entrusts the community of states collectively with authority to intervene on a people's behalf to prevent their state from abusing or neglecting its fiduciary obligations. The purpose of humanitarian intervention, in other words, is to provide a form of surrogate protection to people who would otherwise be subject to grave forms of instrumentalization or domination. Humanitarian intervention under the fiduciary model we propose thus mirrors Grotius's account of humanitarian intervention in crucial respects: whenever a state subjects its people to the threat of "grievous oppressions,”[17] international law authorizes the international community to appoint other states or regional organizations to serve as temporary fiduciaries for the purpose of guaranteeing an oppressed people's fundamental security under the rule of law.

Rather than exercise direct command and control over the forces that undertake humanitarian intervention, the Security Council has entrusted states and regional organizations with discretionary authority to conduct cross-border interventions to address humanitarian crises.[18] In its authorizing resolutions, the Security Council has imposed some meaningful constraints on intervening states' discretion, requiring them to pursue only prescribed humanitarian objectives, to develop and execute a coordinated strategy, and to respect the territorial integrity of other states. The Security Council has also reserved the right to supervise humanitarian intervention and, where necessary, modify or withdraw its mandate for humanitarian intervention if it determines that the mandate has been abused or is no longer warranted. However, because the Security Council has been unable ex ante to fully specify how states should conduct humanitarian intervention, intervening states have always enjoyed considerable discretion in practice to decide how they will use force to achieve their humanitarian missions. In each of these respects, humanitarian intervention in the Charter era bears the characteristic features of a fiduciary relationship. Through the Security Council, the international community entrusts states with discretionary authority to use force for and on behalf of foreign nationals, subject to public-regarding fiduciary duties.

The Security Council's 2011 resolution authorizing humanitarian intervention in Libya illustrates the fiduciary structure of humanitarian intervention. Although "reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians,” the Security Council concluded that international intervention was warranted to address the "widespread and systematic attacks” against civilians in Libya, which the Security Council concluded "may amount to crimes against humanity.”[19] "Expressing its determination to ensure the protection of civilians and civilian populated areas and the rapid and unimpeded passage of humanitarian assistance and the safety of humanitarian personnel,” the Security Council demanded an immediate ceasefire, announced a "ban on all flights” in Libyan airspace, and authorized "Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures ... to protect civilians and civilian populated areas under threat of attack.”[20] The authority entrusted to intervening states to use force was limited to a predefined purpose: to protect the human rights of the Libyan people and foreign nationals caught in the rising Libyan civil war. At the same time, the Security Council also limited the scope of state discretion by categorically excluding "a foreign occupation force of any form on any part of Libyan territory,” reflecting the international community's "strong commitment to [Libya's] sovereignty, independence, territorial integrity and national unity.”[21] Thus, although the Security Council gave a green light for humanitarian intervention in Libya, it permitted states to use force only as temporary fiduciaries for the Libyan people.

The fiduciary character of humanitarian intervention provides legal standards that regulate how states may conduct humanitarian intervention under international law. For example, the fiduciary principle of integrity dictates that states may not exploit human rights crises as an opportunity to destabilize another state or pursue their own economic advantage vis-a-vis another state. Under the principle of impartiality, intervening states must give due regard to the respective interests of foreign nationals with competing claims, seeking a fair balance to ensure that all people of a target state are respected as co-beneficiaries.[22] Perhaps most important, the fiduciary principle of solicitude requires an intervening state to give due and sensitive regard to the legitimate interests, values, and preferences of its foreign beneficiaries. This principle has begun to gain traction in other subfields of international law such as the law of diplomatic protection[23] and the rights of indigenous peoples,[24] and it has obvious resonance in the general principle of self-determination; nonetheless, it has yet to take hold fully in the international law and practice of humanitarian intervention. The principle of solicitude dictates further that, where possible, intervening states should consult with the oppressed groups they seek to protect, aiming to find consensus on the best approach for restoring human rights observance within a target state. Ifrepresentatives of an oppressed group request the modification or discontinuation of armed intervention undertaken on their behalf, states that have undertaken intervention should make every effort to respect such a request, provided they can do so within the constraints of the Security Council's relevant resolutions. In each of these respects, the fiduciary obligations associated with humanitarian intervention offer a legal framework for safeguarding humanity from foreign domination.

Given the grave injustices that states have perpetrated against one another in the name of benevolent "guardianship,” there is always a risk that military action undertaken in the name of "humanitarian intervention” may simply serve as a pretext for neocolonialist domination. International institutions such as the Security Council bear a particularly important responsibility to exercise vigilance against the abuse of power by intervening states. Unfortunately, flaws in the Security Council's decision-making structure have compromised its ability to perform this oversight function effectively. Because U.N.-authorized interventions have always involved the Security Council's veto-wielding permanent members (the "P5”), the Security Council has been unable to check states that have abused or exceeded the scope of their entrusted authority. once a P5 state has received a mandate for humanitarian intervention, this mandate is virtually impossible to withdraw through a new resolution. Critics of international military intervention have cited the united States' invasion of Iraq in 2003 and NATo airstrikes in Libya in 2011 as evidence that the P5 states are able to expand narrowly tailored resolutions into open-ended licenses for the use of force without meaningful accountability. This accountability deficit has made it more difficult for states advocating humanitarian intervention (chiefly, the united States and the united Kingdom) to persuade other P5 states (chiefly, China and Russia) to support Security Council resolutions authorizing intervention. The accountability deficit also provides fodder for critics who argue that the lofty rhetoric of "humanitarianism” merely serves as a pretext for great-power domination. In the long run, the Security Council will need to develop new and better ways to supervise humanitarian intervention—minimizing state abuse and facilitating better-executed interventions—if the fiduciary theory is to be credible in practice.

Pending more fundamental reform of the Security Council's decision-making structure, some relatively modest changes could significantly narrow the current accountability deficit. One commonsense reform, which Brazil has proposed in the wake of NATO's intervention in Libya, would be to establish standardized reporting and review procedures to enable the Security Council to continuously "monitor and assess the manner in which resolutions are implemented” and thereby provide for "the accountability of those to whom authority is granted to resort to force.”[25] The Security Council could also establish its own independent monitoring body to investigate complaints that intervening states have exceeded their mandates.[26] Although such oversight procedures would require the Security Council to devote more resources to monitoring and could risk further politicizing humanitarian interventions,[27] the requirement that intervening states provide a regular accounting for their use of force is arguably a nonnegotiable requirement of the fiduciary character of their entrusted authority.

A second option for enhancing Security Council oversight would be to include a provision in future Security Council resolutions allowing the Security Council or a separate committee composed of Security Council members to narrow or withdraw mandates for humanitarian intervention by a simple majority or supermajority vote, reducing the threat of a P5 veto. This mechanism could deter states from undertaking humanitarian intervention in the first place by raising the possibility that the Security Council could seek to micromanage their military engagements or cancel a mission prematurely after an intervening state has already committed significant resources. On the other hand, allowing the Security Council to withdraw its mandate for humanitarian intervention by a maj ority vote would help to counter the threat of "mission creep” by enabling the Security Council to rein in intervening states that exceed the scope of their entrusted authority.[28]

Should this option prove impracticable, the Security Council could achieve a similar result by adding "sunset provisions”—clauses that provide a fixed expiration date—to resolutions that authorize humanitarian intervention.[29] In other settings, lawmakers have used sunset provisions to promote flexible and responsive governance,[30] and similar objectives could be achieved by requiring states to seek periodic reauthorization for humanitarian intervention. Although the duration of the sunset period would obviously have to be calibrated to the scope of the anticipated intervention, a presumptive sunset period in the range of sixty to ninety days would give intervening states sufficient scope for action to avert an impending humanitarian crisis (e.g., Kosovo, Libya), while preventing the exigencies of the moment from generating an open-ended mandate for a sustained foreign military presence in the target state. Requiring periodic Security Council reauthorization would compel intervening states to account for their performance, while also helping to ensure that their actions are consistent with fiduciary principles of integrity, impartiality, and solicitude. Should an intervening state abuse its discretion, the Security Council could decline to renew its authorization for the use of force, or it could issue a revised mandate that would define the humanitarian mission more precisely, or transfer responsibility for intervention to other states. The Security Council could also establish U.N.-sponsored institutions to facilitate deliberative engagement between intervening states and representatives of oppressed peoples. Although these are not the only conceivable mechanisms for enhancing international accountability for humanitarian intervention, they are suggestive of the kinds of sensible reforms that may help to address concerns about the fiduciary theory's potential for abuse.

Given the formidable political hurdles to Security Council authorization for humanitarian intervention, some scholars have suggested that international law should be construed to allow states to engage in humanitarian intervention without the Security Council's approval under certain circumstances.[31] For these advocates of decentralized humanitarian intervention, NATO's 1999 aerial bombardment of targets in Yugoslavia for the protection of Kosovo furnishes the controlling precedent. Even if the Kosovo intervention cannot be squared with the Charter's formal requirements, some scholars argue that it should be construed as "legitimate” under international law in light of the urgent need to prevent ethnic cleansing and possible genocide or crimes against humanity.[32] However, most scholars reject the suggestion that the Kosovo model of humanitarian intervention without Security Council authorization has attracted sufficient support in state practice and opinio juris to generate customary international law.[33] And few accept the premise that under international law there can be such a thing as an "illegal but legitimate” use of force.[34]

By underscoring the bounded character of state authority under international law, the fiduciary model of state sovereignty lends support for the majority view that states may not engage in humanitarian intervention without obtaining the consent of the host state or international authorization. In their institutional role as fiduciaries for their own people, states are entrusted with authority to wield coercive power only (1) within their own borders, and (2) in exceptional cases outside their borders for the limited purpose of protecting their own nationals from imminent harm. As fiduciaries of humanity, states are also vested with jurisgenerative authority to collaborate in establishing international institutions through which the international community may exercise its collective authority to protect all humanity. However, because international authority for humanitarian intervention is vested solely in the collective judgment of the international community as a whole under the R2P principle, individual states lack authority to wield public power within the jurisdiction of another state without authorization from either the other state or the international community as a whole. Under current international law, the only institutional vehicle for obtaining the international community's collective approval for humanitarian intervention is Security Council authorization. Thus, insofar as the Charter and customary international law currently prohibit states and regional organizations from using force to conduct humanitarian intervention without Security Council authorization, these entities simply lack authority to enforce human rights beyond their borders unilaterally.

Nonetheless, we might reasonably ask how the international community should respond if political gridlock in the Security Council frustrates the purpose of international law's fiduciary constitution—establishing fundamental security under the rule of law. The fiduciary character of international legal order may be seriously undermined if the international community lacks the capacity in practice to protect humanity from grave and systematic human rights abuses. Alternative institutional mechanisms may be necessary at the international level, therefore, to compensate for the Security Council's weaknesses. Such mechanisms might include ex ante authorization by other international or regional bodies, or perhaps even ex post ratification by the Security Council, an international tribunal, or perhaps even by a supermajority of states in cases of extreme exigency.[35] Although we recognize that such alternative mechanisms for approving humanitarian intervention would carry their own risks, and we cannot work out the details of these alternatives here, our basic point is that a variety of institutional models for humanitarian intervention may be consistent with the fiduciary constitution of sovereignty. The idea is to construct a framework within which humanitarian intervention is never the unilateral act of an intervening state or even group of states, but rather authorized by international law, even if the relevant authorization comes only after the fact by way of ratification. At a minimum, more effective institutional mechanisms are needed at the international level to ensure that the international community can respond effectively when states flagrantly violate their fiduciary duties to their own people by engaging in grave human rights abuse.

under the fiduciary theory, IHRL's more restrictive proportionality standard should apply when states conduct humanitarian intervention—even if states lack "effective control” over foreign territory. IHLR standards apply to humanitarian intervention, including internal armed conflict, occupation, and most counterterrorism and COIN operations, because international law entrusts states with authority to use force in a fiduciary capacity for the exclusive benefit of an oppressed people.

Although humanitarian intervention is, technically speaking, a subset ofinterna- tional armed conflict and therefore subject to the full corpus of IHL, the relationship between an intervening state and a foreign people is similar to the relationship between a state and its own people during internal armed conflict. During humanitarian intervention, international law temporarily shifts the sovereign responsibility to protect from a state that has engaged in systematic human rights abuse to other states that have been entrusted with authority to intervene by the Security Council. As surrogate sovereigns, intervening states assume fiduciary obligations to use their coercive powers for the benefit of an oppressed foreign people, and they must take care to avoid inflicting harm that is not strictly necessary to fulfill their entrusted responsibility to guarantee basic security under the rule of law.[36] States that engage in humanitarian intervention therefore assume a fiduciary obligation to observe IHRL's strict-necessity standard for the use of force, treating the security of foreign nationals with the same solicitude that they accord to their own nationals. merely satisfying IHL principles of distinction, necessity, and proportionality will not suffice.

From these observations, it follows that intervening states may assume human rights obligations toward foreign nationals even if they do not acquire full "effective control” over foreign territory. Consider the two most widely cited examples of multilateral humanitarian intervention from the past fifteen years: NATO's 1999 intervention in Kosovo and U.N.-authorized intervention during the 2011 Libya revolution. In both settings, states used air strikes to prevent human rights abuses without establishing "effective control” over the territory by "putting boots on the ground.” The ECHR addressed this problem in the 2001 case Bankovic and Others v. Belgium and 16 Other Contracting States.[37] At issue in the case was a NATO air strike against television and radio production facilities in Belgrade that claimed the lives of sixteen civilians and seriously wounded sixteen others. Emphasizing the contractual character of the European Convention, the court held that the NATO strike did not take place within the "jurisdiction” of NATO states, and hence did not fall within the European Convention's scope, because the intervening states lacked "effective control of the relevant territory and its inhabitants.”[38] The fiduciary theory, in contrast, would support an approach closer to the standard that the ECHR proposed several years later in its Issa dictum: whenever states assert authority to intervene abroad as a de facto surrogate sovereign to guarantee human rights—with or without the host state's consent—they assert a form of jurisdiction over foreign territory and assume a correlative obligation to use force in a manner that honors the IHRL right to life.[39] In particular, the fiduciary theory dictates that states must take all feasible precautions to avoid casualties, placing the lives of their own soldiers on an equal plane with the lives of foreign nationals whom they undertake to protect.[40] Within the context of humanitarian intervention, states may use force abroad only in a manner that treats the lives of foreign nationals with the same consideration they owe to their own people.

  • [1] See Francisco de Vitoria, On the Indians Lately Discovered (1532), in Franciscus deVictoria, De Indis et de Ivre Belli Relectiones 115, 159 (Classics of International Lawed. 1917) (translation based on Boyer ed. 1557, Munoz ed. 1565 & Simon ed. 1696); Pufendorf,supra note 12, bk. VIII, ch. 6, § 14; VAttEL, supra note 11, ch. IV, § 56, ^ 3.
  • [2] Vitoria, supra note 158, at 159.
  • [3] Id. at bk. II, ch. XXV, pt. VIII(1); cf. John Locke, Second Treatise of CivilGovernment 35, § 65 (C.B. MacPherson ed. 1980) (1690) (arguing that parental "power so little belongs to the father by any peculiar right of nature, but only as he is guardian of his children,that when he quits his care of them, he loses his power over them, which goes along with theirnourishment and education”).
  • [4] Grotius made allowance for individuals to exercise a limited right of resistance for selfpreservation. See Grotius, supra note 1, at bk. I, ch. IV, pt. VII.
  • [5] Grotius, supra note 1, at bk. II, ch. XXV, pt. VIII(2)-(3).
  • [6] Robert A. Williams, Jr., The American Indian in Western Legal Thought: TheDiscourses of Conquest 106 (1990).
  • [7] Id. at 93.
  • [8] Id. at 201 (citing "The First Charter of Virginia,” in Documents of American History 8-10(H.S. Commager 8th ed. 1968)). In tension with the fiduciary theory was a competing vision ofNative Americans as perpetual enemies (perpetui inimici) who could not be induced to civilizedgovernance and must be destroyed. Robert A. Williams, Jr., Savage Anxieties 192-96(2012).
  • [9] General Act of the Berlin Conference, Feb. 26, 1885, art. VI, 165 Consol. T.S. 485, reprintedin R.J. Gavin & J.A. Betley, The Scramble for Africa: Documents on the Berlin WestAfrican Conference and Related Subjects, 1884/1885, at 291 (1973); H. DuncanHall, Mandates, Dependencies and Trusteeship 95 (1948).
  • [10] Davide Rodogno, Against Massacre: Humanitarian Interventions in theOttoMAN Empire, 1815-1914, at 12, 63-117 (2012); see also Neff, supra note 1, at 224 (quoting Note to the Porte, 8 Apr. 1830, in Rene Albrecht-Carrie (ed.), Concert of Europe, at 121-22(1968)).
  • [11] SCR 794, S/Res/794, Dec. 3, 1992, ^ 7.
  • [12] Id.
  • [13] See, e.g., SCR 754, S/Res/754, June 5, 1992 (authorizing the U.N. Protection Force(UNPROFOR) in the former Yugoslavia to take steps to ensure the delivery of humanitarianaid to Sarajevo); SCR 1240, S/Res/1240, Oct. 22, 1999 (establishing the U.N. Mission in SierraLeone (UNAMSIL) to keep peace and ensure the delivery of humanitarian aid); SCR 1264, S/Res/1264, Sept. 15, 1999 (authorizing a multinational force to restore peace in East Timor). Wediscuss U.N. peacekeeping and its evolution in Chapter 8.
  • [14] SCR 1973, supra note 23, at 37, ^ 4, 8.
  • [15] See, e.g., Catherine Powell, Libya: Indicative of a Multilateral Constitutional Moment?, 106Am. J. Int'l L. 298 (2012).
  • [16] Because individual states bear a fiduciary duty of loyalty primarily to their own people,they are not ordinarily obligated to risk the lives of their own soldiers to discharge the international community's collective responsibility to protect. But see, e.g., Monika Hakimi, Toward aLegal Theory of the Responsibility to Protect, 39 Yale J. Int'l L. 247, 249-50 (2014) (arguing thatsome aspects of R2P may attach to specific states based on their past conduct or relationship withthe imperiled people).
  • [17] 2 Grotius, supra note 1, at ch. XXV, pt. VIII(2).
  • [18] Although the U.N. Charter originally provided for states by "special agreement” to contribute "armed forces, assistance, and facilities” for a standing military force under the SecurityCouncil's command (art. 43), this provision never took effect because states declined to participate. As a result, the Security Council has been forced to rely upon states to commit their ownforces to humanitarian interventions on a voluntary, ad hoc basis.
  • [19] SCR 1973, supra note 171, pmbl.
  • [20] Id. pmbl., 6 & 8.
  • [21] Id. pmbl. & ^ 4.
  • [22] See Dukeminier & Sitkoff, supra note 34, at 657-58 (observing that the “duty of impartiality” in trust law is inaptly named because it does not require impartiality in the sense of equality, but rather a balancing by giving due regard to the beneficiaries' respective interests); Sitkoff,supra note 34, at 651 (“[B]alance is the overarching directive of the duty of impartiality.”).
  • [23] See Draft Articles on Diplomatic Protection with Commentaries, art. 19(b), in Rep. of theInt'l Law Comm'n, 58th Sess., May 1-June 9, July 3-Aug. 11, 2006, U.N. Doc. A/61/10; GAOR,61st Sess., Supp. No. 10 (2006) (recommending that states asserting diplomatic protectionclaims “take into account, wherever feasible, the views of injured persons with regard to resort todiplomatic protection and the reparation to be sought”).
  • [24] See Declaration on the Rights of Indigenous Peoples art. 32, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007) (“States shall consult and cooperate in good faith with theindigenous peoples concerned through their own representative institutions in order to obtaintheir free and informed consent prior to the approval of any project affecting their lands or territories . . . .”); Case of the Saramaka People v. Suriname, Judgment, Inter-Am. Ct. H.R., Nov. 28,2007 (Ser. C), No 172 (2007), 131-37 (emphasizing the need for good faith consultation with indigenous peoples and, for large scale projects, informed consent).
  • [25] Alex J. Bellamy, The Responsibility to Protect: A Defense 192 (2015) (quoting Letter from the Permanent Representative of Brazil, to the U.N. Secretary-General (Nov.9, 2011)).
  • [26] See id. at 201.
  • [27] Id. at 199.
  • [28] As discussed in Chapter 8, regular accounting and a supermajority voting procedure havebeen built into the U.N. al-Qaeda targeted sanctions program, although the extent to whichthese measures legitimize the program is unclear.
  • [29] See id. at 200 (observing that sunset clauses are "standard practice for UN peacekeepingoperations”).
  • [30] See Rebecca M. Kysar, The Sun Also Rises: The Political Economy of Sunset Provisions in theTax Code, 40 Ga. L. Rev. 335, 337 (2006).
  • [31] See, e.g., George P. Fletcher & Jens David Ohlin, Defending Humanity: WhenForce Is Justified and Why (2008); Fernando R. Teson, HumanitarianIntervention: An Inquiry into Law and Morality (3d ed. 2005); Jens David Ohlin, TheDoctrine of Legitimate Defense, 91 Int'l L. Stud. 119 (2015); W. Michael Reisman & Myers S.McDougal, Humanitarian Intervention to Protect the Ibos, in Humanitarian Interventionand the United Nations 167 (1973).
  • [32] See, e.g., U.K. Permanent Representative to the United Nations, S/PV.3988, Mar. 24, 1999,at 12, reprinted in 70 Brit. Y.B. Int’l L. 387, 571-601 (1999) (arguing that NATO action was“legal” because it was “justified as an exceptional measure to prevent [an imminent] humanitarian catastrophe”).
  • [33] See, e.g., Simon Chesterman, Just War or Just Peace? HumanitarianIntervention and International Law (2001); Oona A. Hathaway et al., Consent-BasedHumanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign, 46 CornellInt’l L.J. 499, 521-35 (2013); Saira Mohamed, Restructuring the Debate on UnauthorizedHumanitarian Intervention, 88 N.C. L. Rev. 1275, 1285-89 (2010); Louis Henkin, Kosovo andthe Limits of "Humanitarian Intervention,” 93 Am. J. Int’l L. 824, 825 (1999); Bruno Simma,NATO, the UN and the Use of Force: Legal Aspects, 10 Eur. J. Int’l L. 1, 3 (1999). As one of us hasargued elsewhere, the dismal historical record of unilateral humanitarian intervention counselsagainst abandoning a requirement of ex ante collective authorization. See Evan J. Criddle, ThreeGrotian Theories of Humanitarian Intervention, 16 Theoretical Inq. L. 473, 486-87 (2015)[hereinafter Criddle, Grotian Theories]. A stronger argument can be made that international lawalready entrusts individual states with authority to impose non-forcible countermeasures inresponse to human rights abuses abroad. See Evan J. Criddle, Standing for Human Rights Abroad,100 Cornell L. Rev. 269 (2015) [hereinafter Criddle, Standing].
  • [34] See, e.g., Anthea Roberts, Legality vs. Legitimacy: Can Uses of Force Be Illegal but Justified?,in Human Rights, Intervention, and the Use of Force 179 (Philip Alston & EuanMcDonald eds., 2008).
  • [35] See David Dyzenhaus, Hobbes on the International Rule of Law, 28 Ethics & Int'l Affs. 53(2014) (explaining how the international rule of law is possible even in a world without international institutions capable of authoritatively resolving interpretive disputes).
  • [36] See Criddle, Grotian Theories, supra note 190; Criddle, Standing, supra note 190.
  • [37] 2001-XII, Eur. Ct. H.R. 33, 55 9-11.
  • [38] Id. 71, 80.
  • [39] Issa & Others v. Turkey, Nov. 16, 2004, Appl. No. 31821/96, 5 72.
  • [40] Whether NATO satisfied this standard in its Kosovo intervention is controversial. TheIndependent International Commission on Kosovo concluded that "NATO's overall record wasunprecedented to the extent that it avoided civilian damage through the accuracy of its targeting.” Independent International Commission on Kosovo, The Kosovo Report 181(2000). But the Commission also expressed concern that NATO's rules of engagement, whichset a 15,000-feet minimum altitude for aerial bombardment, might have impeded effective targeting in some settings. Id. At a minimum, the Commission suggested that the "high-altitudetactic . . . weaken[ed] the claim of humanitarianism to the extent that it appear[ed] to valuethe lives of the NATO combatants more than those of the civilian population of Kosovo andSerbia, and especially the lives of the Kosovar Albanians that it was acting to protect.” Id.; see also
 
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