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NOTE: Legalizing the Sublegal: A Proposal for Codifying a Doctrine of


Unilateral Humanitarian Intervention
BIO:
* J.D., Georgetown University Law Center, 1997; A.B., Brown University,
1994. I would like to thank Professor Jane E. Stromseth for her insight
and advice, which proved invaluable in writing this note, the staff and
editors of The Georgetown Law Journal for their hours of hard work, and
Emma Tubb for her support.
LEXISNEXIS SUMMARY:
... Suppose further that upon learning of the atrocities, a permanent
member of the United Nations Security Council vetoes a resolution
authorizing collective intervention to stop the bloodshed, on the ground
that the dictator's action, though reprehensible, is within the exclusive
domestic jurisdiction of the state. ... Because codification may constrain
the use of force, the very problem that it poses for
collective humanitarian intervention is an advantage in the context
of unilateral humanitarian intervention. ... A codified right
of unilateral humanitarian interventionwould increase the legitimacy
of international law by: (1) removing reliance on the "sublegal" approach
to humanitarian intervention; (2) balancing the tensions within the
international legal system between state sovereignty and human rights
and between peace and justice; and (3) preventing states from invoking
strained interpretations of recognized legal justifications, including those
embodied in the U.N. Charter. ... However, codifying a limited right
of unilateral humanitarian intervention will not seriously threaten
state sovereignty and may even prevent its further erosion by current
trends in international law. ... In addition, because codification would
allow states to restrict the means of intervention and the circumstances
warrantingintervention, even the target of unilateral humanitarian
intervention would retain certain rights -- and thus some measure of
sovereignty -- under international law. ... Given the impediments to
Charter amendment or a treaty-based doctrine of unilateral
humanitarian intervention, a General Assembly resolution would be
the most realistic approach to codification in the near future. ...
TEXT:
[*417] INTRODUCTION
Imagine the following scenario: the despot of a small state orders his
generals to purge the country of "dissidents" who happen to comprise a
particular ethnic group. Through mass executions and forced relocation
to nonarable regions of the state, the death toll steadily rises into the tens
of thousands. Suppose further that upon learning of the atrocities, a
permanent member of the United Nations Security Council vetoes a
resolution authorizing collective intervention to stop the bloodshed, on
the ground that the dictator's action, though reprehensible, is within the
exclusive domestic jurisdiction of the state. 1 Intervention, it is argued,
would violate both the territorial integrity and political independence of
the state. How should the world respond in the face of Security Council
deadlock? Should nations idly watch as the bloodshed escalates? Should
individual states flout the letter of international law and unilaterally
intervene to terminate the atrocities, themselves risking U.N. sanctions
despite their humanitarian motives? Or, before today's hypothetical
becomes tomorrow's headline, should the international community
codify adoctrine of law permitting, yet limiting, unilateral use of force in
such circumstances?
While the Security Council's increased ability to maintain international
peace and security since the end of the Cold War has generated a flurry of
interest in collective humanitarian intervention, 2 the complex problem
of unilateral humanitarian [*418] intervention continues to confront
international lawyers and diplomats alike. 3 Though preferable
to unilateral humanitarian intervention, the recent pattern of Security
Council cooperation does not mean that collective humanitarian
intervention will remain an option in all cases warranting such action.
Given the power of the Security Council's permanent members to veto
resolutions authorizing collective action, the fragile consensus behind
collective humanitarian intervention could suddenly unravel. 4 In
particular, the threat of a Chinese or Russian veto endangers the future of
collective humanitarian intervention, 5 especially in light of China's
opposition to international scrutiny of human rights issues. 6 Thus,

Yogesh Tyagi may not be overly dramatic in characterizing the veto


power as "a Sword of Damocles over the head of collective decisionmaking." 7
Consequently, before the proverbial sword falls, we must consider what
role a doctrine of unilateral humanitarian intervention might play in
the post-Cold War era. Employing a "conditionalist" approach, 8 this note
proposes codifying a right of unilateral humanitarian intervention in
a U.N. General Assembly resolution that conditions intervention on
specified criteria and addresses four crucial questions related
to codifying a doctrine of unilateral humanitarian intervention. Part I
addresses why arguments asserted against codification of
collectivehumanitarian intervention are not persuasive in the context
of unilateral humanitarian [*419] intervention and lays out the
argument that a doctrine of unilateral humanitarian
intervention should be codified. Part II examines the political
impediments to codification. Part III compares the possible ways in which
a right of unilateral humanitarian intervention could be codified, in
light of legal and political obstacles. Part IV proposes a number of
substantive criteria that might be included in a draft
resolution codifying a limited right of unilateral humanitarian
intervention. While any effort toward codification would face substantial
impediments, its potential benefits warrant serious consideration of how
the crucial first step should be taken.
I. DE FACTO VS. DE JURE UNILATERAL HUMANITARIAN
INTERVENTION
Recent ad hoc Security Council authorizations of intervention in
northern Iraq, Somalia, Haiti, and the former Yugoslavia 9 have prompted
debate over the wisdom of codifying a doctrine of
collective humanitarian intervention. Scholars advocating codification
assert the need to draft criteria to constrain and guide
future interventions, 10 whereas those opposed prefer the de facto
evolution of standards derived from Security Council action in past
cases. 11 Relatively few scholars, on the other hand, have addressed the
merits of codifying a doctrine of unilateral humanitarian
intervention in the post-Cold War context; thus, the debate remains
confined predominantly to the realm of collective action. 12 While the
arguments parallel one another in many respects,
two [*420] considerations demonstrate that codification of a limited
right of humanitarian intervention is needed more in the context
of unilateral than collectiveinterventions.
First, unlike collective humanitarian intervention, which is generally
predicated upon Security Council authorization, 13 no procedural
safeguards constrain the exercise of unilateral humanitarian
intervention. To maintain the fragile consensus favoring
collective intervention, Professor Lori Damrosch argues for flexibility in
applying such standards. 14 However, flexibility is not necessarily
desirable with regard to unilateral humanitarian intervention because
the primary concern is not the inability to act but rather the fear of
pretextual intervention. Because codification may constrain the use of
force, the very problem that it poses for collective humanitarian
intervention is an advantage in the context of unilateral humanitarian
intervention.
Second, the precedential approach to developing standards
for humanitarian intervention is also uniquely suited to collective
forms of intervention. Consistent with her call for flexibility, Professor
Damrosch rejects codification and advocates recognizing a sort of
Security Council common law of collective intervention. 15 However, this
argument is less compelling in the context of unilateral humanitarian
intervention. Given the de jure illegality of unilateral humanitarian
intervention, 16 a precedential approach would require the formation of
rules governingintervention based on violations of international law. In
addition, because states generally reject the legality of unilateral
humanitarian intervention, such an approach would lack the
requisite opinio juris -- the belief that an action is legally mandated -necessary to transform the practice into a rule of customary international
law. 17 Even a lack of enforcement against a state intervening unilaterally
would not evidence opinio juris, unless "'such abstention [*421] were
based on their [the states] being conscious of having a duty to abstain'"
from condemning and perhaps punishing the intervention. 18

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Moreover, a lack of condemnation does not make clear exactly what the
international community is condoning and why. Is acquiescence a
product of political concerns, or does it indicate agreement with the
moral necessity of a particular intervention? Does the Security Council
entirely accept the method of intervention or only the circumstances?
While the Security Council could answer these questions on a case-bycase basis when confronted with collective humanitarian
intervention, such a flexible precedential approach is incapable of
establishing a coherentdoctrine of unilateral humanitarian
intervention. Therefore, the issue remains whether unilateral
humanitarian intervention should be codified as an exception to Article
2(4)'s prohibition on the use of force or should remain a technically
illegal use of force. 19 As addressed below, this note argues that
codification is the more desirable alternative.
A. ROLE OF CODIFICATION IN CURBING ABUSE
Scholars opposed to the codification of unilateral humanitarian
intervention point to the potential abuse of the doctrine by states
seeking to legitimize pretextual interventions against weaker
states. 20 This skepticism toward the altruistic motives of intervening
states has been largely influenced by Adolf [*422] Hitler's annexation of
Czechoslovakia under the guise ofhumanitarian intervention in
1939. 21 It is not difficult to imagine contemporary scenarios in which an
aggressor state might justify its violation of a weaker state's territorial
integrity by alleging humanitarian motives. Even proponents
of codifying a doctrine of unilateral humanitarian
intervention acknowledge that the possibility of
pretextual interventions should not be discounted. 22 However, the fear
of abuse argument exaggerates the likelihood that codifying a limited
right of unilateral humanitarian intervention would encourage abuse
and overlooks the benefits of codification, particularly the restraints that
codification may impose upon both legitimate and illegitimate unilateral
intervention. 23 While no legal norm is entirely free from potential
abuse, 24 limiting the right of unilateral humanitarian
intervention through the use of codified criteria will diminish rather
than exacerbate the problem of pretextual interventions.25 A codified
rule of intervention is less prone to abuse than is the current "sublegal"
status accorded unilateral humanitarian intervention. 26
Providing an objective standard against which to measure the legitimacy
of a given intervention would deter would-be aggressors and minimize
abuse in two respects. 27 First, codification would impede states' ability to
assert humanitarian rationales for illegitimate intervention. 28 Unlike a
subjective approach that judges the legitimacy of each case in an ad hoc
manner, codification enhances the international community's ability to
discern abuse, thereby making it more difficult for an intervening state to
characterize its action as a
lawful humanitarian [*423] intervention. 29 The effective application
of such criteria requires reliable information concerning the conditions
within the target state that allegedly warrant intervention. The use of
modern information-gathering technology can significantly aid in
verifying whether widespread atrocities are in fact being perpetrated,
reducing the need to rely solely upon the credibility of the intervening
state. 30
Second, codification would discourage well-intentioned intervention "in
a situation or in a manner falling short of the requirements set forth for
its legality." 31 By clearly communicating thatintervention which does
not meet the objective standard would be subject to possible
condemnation by the international community, the deterrence of
illegitimate intervention would be enhanced. 32 Furthermore, objective
criteria would indicate whether intervention is legal prior to
taking unilateral action, rather than relying on a determination of the
act's validity only after a state's territorial integrity has been
violated. 33 Codification would restrain intervention not only by selfinterested states, but also by altruistic states that, in the absence of an
objective standard, might misjudge the appropriateness
of intervention. 34 Thus, contrary to the claims of scholars who fear that
any additional exception to Article 2(4) threatens to increase the use of
armed force, 35 codifying a limited right of unilateral humanitarian
intervention would likely decrease both
pretextual interventions [*424] and well-intentioned but

inappropriateinterventions. 36
Of course, codification will not eradicate all instances of abuse. States
bent on aggression will engage in unilateral interventions even if such
actions are per se illegal. 37 This problem is exacerbated by the numerous
justifications that an aggressor state may assert to rationalize its
encroachment upon the territorial integrity and political independence of
a victim state, 38although abuse of international legal justifications is by
no means unique to humanitarian intervention. 39 Acknowledging this
shortcoming, scholars opposed to codification argue thatlegalizing
intervention would provide yet another pretext for
illegitimate intervention by powerful states, giving the force of law to
what had been merely a "rhetorical proclamation." 40However, because
the legality of any intervention would be conditioned upon satisfying the
requisite criteria, justifications for interventions falling short of the
objective standard would remain mere rhetoric. Therefore, it is doubtful
that the potential use of such political arguments would encourage abuse
of the doctrine and increase the frequency of
illegitimate intervention above the current level. 41
Furthermore, any incentive to abuse the doctrine would be reduced
because codification would impede neither the Security Council's ability
to condemn actions falling below the objective standard nor its power to
take enforcement action against illegitimate intervenors. 42 Thus,
pretextual, or even questionable, unilateral humanitarian
intervention would remain subject to international scrutiny, with the
intervening state assuming the risk that its actions might
provoke [*425] Chapter VII collective security measures by the Security
Council. 43 Codification would also increase the probability of U.N.
reprisal by helping to distinguish legitimate from
illegitimate interventions. 44 The bright-line standard, coupled with the
threat of U.N. reprisal, would minimize any incentive for states to invoke
the doctrine as a cover for pretextual interventions. 45
In addition to restricting illegitimate intervention, codification would
tacitly encourage legitimate intervention when the Security Council is
unable to intervene. 46 The same guidelines indicating
when intervention is not justified would also identify the rare
circumstances when unilateral humanitarian intervention would be
appropriate. 47 The current de jure illegality ofunilateral humanitarian
intervention dissuades states that might otherwise conduct
genuine humanitarian interventions from doing so for fear of being
stigmatized and labeled an aggressor. 48 "The prospective intervenor
knows that, regardless of his motives, he breaches the law, but can hope
that the world community will remain silent . . . and thus implicitly
condone his intervention . . . ." 49 Consequently, even when a state would
not face condemnation for its action, the very illegality of such actions
may impede legitimate intervention by law-abiding states -- states that
value adherence to international law independent of the practical
consequences of its violation. 50 Because truly aggressive states are least
deterred [*426] by legal prohibitions, 51 the current law illogically
deters most effectively law-abiding states that are least in need of
deterrence, ultimately benefitting only human rights abusers. 52 By
setting a standard for legitimate intervention, a limited codified right
of unilateral humanitarian intervention might help to deter
governments from committing gross human rights abuses against
persons within their borders. 53
B. ROLE OF CODIFICATION IN INCREASING THE LEGITIMACY OF
INTERNATIONAL LAW
A codified right of unilateral humanitarian intervention would
increase the legitimacy of international law 54 by: (1) removing reliance
on the "sublegal" approach to humanitarian intervention; (2)
balancing the tensions within the international legal system between
state sovereignty and human rights and between peace and justice; and
(3) preventing states from invoking strained interpretations of
recognized legal justifications, including those embodied in the U.N.
Charter.
First, by obviating the need to rely upon the de facto tolerance of
legitimate (morally justified) but nonetheless illegal intervention, a
codified doctrine of unilateral humanitarian intervention would
increase respect for international law. The fervent debate over the

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legality of unilateral humanitarian intervention generally divides
scholars into two camps, "classicists" and "realists." 55 Relying [*427] on
the intent of the drafters of the U.N. Charter as expressed in the Charter's
text and travaux preparatoires ("preparatory work"), classicists argue
that Article 2(4)'s prohibition on the unauthorized use of force permits
exception only in cases of self-defense that conform to the requirements
of Article 51. 56 As evidence that the international community
considers unilateral humanitarian intervention a violation of
international law, classicists frequently cite the "principle of nonintervention" as expressed in Article 2(7) of the Charter, as well as the
Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of Their Independence and
Sovereignty, and the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations. 57
Realists, on the other hand, interpret the Charter as permitting unilateral
humanitarian intervention for three reasons. First, realists assert that
Articles 1(3), 55, and 56, as well as advances in human rights law,
establish the protection of human rights as a primary purpose of the
United Nations, such that unilateral humanitarian intervention is
justified when the Security Council fails to intervene. 58 Second, realists
posit that the failure of the United Nations to respond to atrocities has
precipitated a "revival of the [pre-Charter] customary right
of humanitarian intervention." 59 Third, realists contend that
the unilateral use of force is not prohibited by the language of Article
2(4) provided that the force exerted does not "infringe upon the longtermterritorial integrity and political independence" of the target state. 60
Unlike classicists, realists do not consider the original intent of the
founding states controlling, but rather seek to discover the law by
examining state action beyond the negotiating table. Because realists
"deemphasize what governments say, however solemnly, in favor of what
they do," 61 they contend that the U.N. Charter must constantly be
reinterpreted in light of contemporary
international [*428] relations. 62 Like international politics,
international law is viewed as being in a perpetual state of flux. While
classicists do not maintain that positive expressions of state intent
necessarily preclude the evolution of law through state practice, they
assert that instances of humanitarian intervention are too few to
demonstrate a shift in states' perception of the legality of unilateral
humanitarian intervention, particularly because no intervention has
ever been justified solely on grounds of humanitarianism. 63 Moreover,
classicists question what role international law plays in governing
international relations if law is but a mere reflection of state behavior.
While classicists fear that international law will be "transformed from a
stern judge of political action into a pathetic dependent[,] . . . realists want
to save it from irrelevance." 64
Although the realist arguments should not be summarily dismissed, "if
one deems the original intention of the founding states to be controlling
with respect to the legitimate occasions for the use of force,
then humanitarian intervention is illegal." 65 Indeed, the predominant
view considers unilateral humanitarian intervention an illegal use of
force prohibited by the Charter. 66Yet, despite this technical illegality, the
most genuine instances of unilateral humanitarian intervention are
seldom condemned. 67 As Byron Burmester states, "The international
legal system currently imposes virtually no sanction on states that
conduct limited intervention for relatively unselfish reasons. Thus, the
system allows benign violations of territorial sovereignty, naturally
separating the 'wrong' from the 'necessary' invasion." 68 Jean-Pierre
Fonteyne similarly observes that [*429] "in circumstances of extreme
gravity, the world community, by its lack of adverse reaction, in
practice condones conduct which, although a formal breach of positive
legal norms, appears 'acceptable' because of higher motives of a moral,
political, humanitarian, or other nature." 69 Fonteyne has dubbed
this sublegal status conferred upon unilateral humanitarian
intervention the "double level" approach. 70
Codifying an affirmative right of humanitarian intervention is less
injurious to the legitimacy of international law than the international
community's de facto approach, which implicitly recognizes such an
exception to Article 2(4). 71 Proponents of this "double level" approach
argue that codification has limited utility because the international

system allows for mitigation of punishment in instances of


genuine unilateral humanitarian intervention. 72 This argument is
correct if one only considers the political ramifications of intervention -namely, legitimateintervention goes unpunished, regardless of its
lawfulness. There is, however, a significant legal difference between
acquiescing in a violation of international law and recognizing the act as
lawful. 73 Most important, de facto acceptance of legitimate unilateral
humanitarian intervention, despite its de jure illegality, threatens to
undermine the legitimacy of international law on a fundamental
level. 74 Tolerating technically unlawful uses of force, even for altruistic
reasons, sends the dangerous message that Article 2(4) contains
unwritten exceptions that might justify theunilateral use of force even in
the absence of self-defense, 75 thereby lending credence to the assertion
that politics is what really counts in international relations. Consequently,
one may conclude that there is a "graver danger in tolerating a category
of behavior without domesticating it within the whole body of legal
values, principles, and rules" 76 than in codifying a limited right
of intervention.
Codification would help to prevent de facto exceptions that erode the
legal force of Article 2(4) while leaving its text unaltered. In addition, the
drafting and negotiation process would enable states to control the form
and substance [*430] of the exception to a greater extent than would be
possible by simply voting for or against condemnation in individual cases
-- particularly for those states without seats on the Security Council. As
Fonteyne states, "An absolute prohibition undermined by creeping
exceptions puritanically called 'acceptable breaches' seems hardly more
straightforward in application than a rule which openly recognizes some
limited and strictly defined exceptions . . . ." 77
The "double level" approach also has the undesired effect of rendering
moral conduct unlawful. 78 Reserving mitigation of punishment for those
rare cases when the moral imperative to act outweighs the purportedly
categorical prohibition on the unilateral use of force begs the question:
Why saddle legitimate intervention with the stigma of illegality? "It
[would] be advisable in assessing what the law ought to be, to frame the
recommended rule in such a way as to attach the label of lawfulness to
what is deemed acceptable." 79 The current doctrine, however, in effect
relegates even the most altruistically motivated humanitarian
intervention to the same moral plane as a blatantly
pretextual intervention that escapes sanctions only because a
permanent member of the Security Council exercises its veto power. In so
doing, the de facto code of mitigation overlooks the subtle but important
distinction between justification and excuse.80 The former recognizes a
narrow category of morally praiseworthy action as legal, despite a
general prohibition on such action, while the latter refuses to punish an
immoral act because the actor is deemed not morally responsible for her
actions. 81 Maintaining the formal illegality of legitimate unilateral
humanitarian intervention while allowing mitigation of punishment in
certain cases is tantamount to an unwritten excuse, thus depriving the
intervening state of the very moral basis upon which mitigation is
predicated. "The attempt to delegitimate (or to suppress the legitimation
of) morally attractive behavior is at best futile and at worst
dangerous." 82 Therefore, codifying a limited justification for unilateral
humanitarian intervention is consistent with the morality of
the intervention and strengthens the law by bringing doctrine in line
with practice.
Second, codification enhances the legitimacy of international law by
reducing the tensions inherent in the current sublegal status
of unilateral humanitarian intervention. Jarat Chopra and Thomas
Weiss identify two fundamental conflicts [*431] that pervade the U.N.
Charter: (1) justice versus peace and (2) human rights versus state
sovereignty. 83 The law surroundinghumanitarian intervention vividly
illustrates both of these tensions and reveals a need to balance these core
values in international law. 84 The traditionally statist international legal
system increasingly accords personality and protection to the individual
vis-a-vis the state. This is dramatically illustrated in the recent rise of
collective humanitarian intervention, particularly in the cases of
Somalia and the Iraqi Kurds. 85 Similarly, the establishment of war crimes
tribunals for Rwanda and the former Yugoslavia demonstrates that at
least de jure, justice sometimes predominates over peace. 86
Despite these notable developments, the balance remains skewed in favor

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of peace and sovereignty at the expense of justice and human rights. 87 By
prohibiting even the most well-intentionedinterventions, 88 the current
per se illegality of unilateral humanitarian intervention perpetuates
this imbalance and calls into question the desirability of a body of law
that protects human rights abusers more than the abused. 89 Because the
"legitimacy [of the international legal [*432] system] depends on
continuing responsiveness to basic human values," 90 international law
must recognize the importance of safeguarding the individual from
atrocities, while continuing to limit the unilateral use of force to
minimize conflict and prevent states from themselves rejecting
international law. 91 Thus, a codified, limited right of unilateral
humanitarian intervention would more "effectively balance human
rights and legitimate state sovereignty, while maintaining international
stability." 92

Voluntariness is a key factor in determining whether a particular norm


threatens state sovereignty. A voluntary, deliberate, and self-imposed
restriction on one's own sovereignty is consistent with sovereignty, even
if it permits a major encroachment upon the state's territorial integrity
and/or political independence. 102 Similarly, a codified right of unilateral
humanitarian intervention [*434] would not threaten sovereignty
because the state voluntarily and only conditionally relinquishes its
sovereignty. "This grant of power exists in conjunction with the principle
of sovereignty rather than in spite of it." 103 While
an intervention against a state might radically compromise that state's
sovereignty, the narrow criteria conditioning theintervention minimize
the net encroachment on state sovereignty. In any event, states engaging
in widespread atrocities run an even greater risk of being the target of
collective intervention.

Finally, codification can increase the legitimacy of international law by


reducing reliance on strained interpretations of Charter provisions that
allow the unilateral use of armed force, particularly Article 51. 93 Given
the current illegality of unilateral humanitarian
intervention, intervening states have typically justified
their intervention on relatively noncontroversial grounds. 94 "Without
the doctrine of humanitarian intervention[,] states will merely cloak
their . . . actions in other politically-correct justifications." 95 However,
while the justification itself may be widely accepted as legal, its
invocation to legitimize a particular intervention may be so
inappropriate as to pervert the meaning of the justification, thereby
undercutting its legal force.

In exchange for a relatively small sacrifice of sovereignty, codifying a


limited right of humanitarian intervention may help to stave off the
more serious threats to state sovereignty posed by popular sovereignty
and moral forfeiture theory. Professor Michael Reisman defines popular
sovereignty as "the people's sovereignty rather than the sovereign's
sovereignty." 104 This seemingly benign concept challenges the very
substance of statehood, and thus international law. For the purpose of
this analysis, popular sovereignty is most significant in its implication
that a government's intrastate acts may violate the sovereignty of its
subjects. 105 Because state sovereignty derives from and depends on
popular sovereignty, external intervention to depose an oppressive
regime would not violate sovereignty but rather would restore
sovereignty to the people. 106 As Professor Reisman states, "The word
'sovereignty' can no longer be used to shield the actual suppression of
popular sovereignty from external rebuke and remedy." 107 This concept
has been invoked to justify external intervention to depose regimes,
such as those in Grenada and Panama, 108 that unlawfully seized power
from the elected government but did not commit massive
atrocities. 109 [*435] Because popular sovereignty purportedly provides
a legal basis for forcible intervention well beyond the context of human
rights disasters, states have an incentive to prevent its further
development.

The integrity of the justification is even more seriously compromised


when the international community, for whatever reason, fails to reject the
application of the justification to clearly inappropriate circumstances. For
example, when Tanzania unilaterally invaded Uganda to depose Idi Amin,
Tanzania relied primarily upon an Article 51 self-defense claim to justify
its violation of Uganda's territorial integrity and political
independence. 96 Despite the "dubious legality" of Tanzania's self-defense
claim, 97 the international community took no steps to condemn
theintervention, even though its illegality was widely acknowledged
among members of the United Nations. 98 Protestations of the illegality of
the intervention may have prevented the crystallization of a customary
norm extending Article 51 to justify such interventions, but the
overwhelming lack of condemnation, in practice, implicitly encourages
states to invoke strained interpretations of agreed-upon legal norms to
legitimize future action.
[*433] Even if a limited right of unilateral humanitarian
intervention were codified, the problem of states
justifying intervention on specious legal arguments would remain
largely unavoidable. Few attorneys or diplomats would rely on a single
argument to justify such a highly controversial and invasive act
as humanitarian intervention; if self-defense was not asserted as a
primary argument, it would surely be a fall-back position. Nonetheless,
codification would likely reduce the necessity of reliance on tortured
interpretations of the Charter by providing an alternative "politically
correct" justification.
C. ROLE OF CODIFICATION IN PRESERVING STATE SOVEREIGNTY
One of the major impediments to codifying a doctrine of unilateral
humanitarian intervention is the concept of state sovereignty. Any
significant progress toward codification would draw vehement criticism
from many states as yet another step in the gradual erosion of state
sovereignty. 99 However, codifying a limited right of unilateral
humanitarian intervention will not seriously threaten state sovereignty
and may even prevent its further erosion by current trends in
international law. Codification would necessitate that states cede a
measure of sovereignty, but only insofar as all international agreements
and legal norms require states to relinquish some portion of their
sovereignty. 100 Even rules of international law that clearly protect state
sovereignty, such as Articles 2(4) and 2(7) of the U.N.
Charter, 101 simultaneously restrict it by limiting a state's freedom of
action and creating duties not to violate the sovereignty of others. While
all international law constrains state action to some degree, it does not
follow that every such legal norm threatens sovereignty.

While some may dismiss this theory as simply academic, popular


sovereignty is finding hints of expression within the United Nations itself.
Former Secretaries-General Perez de Cuellar and Boutros-Ghali have both
acknowledged that absolute state sovereignty is increasingly a legal
fiction, while popular sovereignty's role within the international legal
system is on the rise. 110Popular sovereignty's growth is also evident in
Security Council resolutions authorizing collective humanitarian
intervention pursuant to Chapter VII of the U.N. Charter. 111 While the
world has yet to witness a "global revolution of popular sovereignty," the
concept of popular sovereignty is beginning to erode "statist conceptions
of international law." 112
Although still confined to scholarly debates, moral forfeiture theory is
even more threatening to traditional notions of state
sovereignty. 113 Under moral [*436] forfeiture theory, a state is
endowed with a defeasible right of sovereignty, contingent upon some
minimum standard of treatment of its subjects. Should state action fall
below this threshold -- for example, by flagrantly violating the human
rights of those within its borders -- the state forfeits its sovereignty
entirely and thus becomes subject to external intervention. 114 As a
primary proponent of moral forfeiture theory, Professor Fernando Teson
states:
Because the ultimate justification of the existence of states is the
protection and enforcement of the natural rights of the citizens, a
government that engages in substantial violations of human rights
betrays the very purpose for which it exists and so forfeits not only its
domestic legitimacy, but its international legitimacy as well. 115

Forfeiture is absolute and total. Stripped of its legitimacy and sovereignty,


the state loses all rights under international law and is effectively
rendered a nonentity. 116 Because the state no longer has any standing
under international law, whether and to what degree intervention is
warranted become moot questions. Thus, moral forfeiture theory posits a

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conception of sovereignty consistent with unrestrained unilateral
intervention, humanitarian or otherwise.
Given the threats to traditional state sovereignty posed by popular
sovereignty and moral forfeiture theory, states would be prudent to limit
the appeal of these concepts and the potentially
massive interventions that they might legitimize. By addressing the
underlying frustrations with the current system, a limited codified right
of unilateral humanitarian intervention would undercut the
persuasiveness and moral force of these arguments. In addition, because
codification would allow states to restrict the means of intervention and
the circumstances warrantingintervention, even the target of unilateral
humanitarian intervention would retain certain rights -- and thus some
measure of sovereignty -- under international law. Paradoxically, states
may actually preserve sovereignty in the long run by giving up the small
portion that would be lost through recognizing a limited right
of unilateral humanitarian intervention. 117 Thus, [*437] codification
"'should not be viewed as an affront to sovereignty, but as a necessary
tool to preserve it.'" 118
II. POLITICAL REALITIES OF CODIFICATION
Despite the theoretical and practical advantages that could be realized
by codifying a limited right of unilateral humanitarian
intervention, state opposition to such a doctrine presents a major
obstacle to any codification effort. While many states have gradually
come to accept that conflicts beginning within their borders but
threatening international peace and security are not exclusively within
their domestic jurisdiction, 119 these states nonetheless jealously guard
against humanitarian intervention's encroachment upon
sovereignty. 120 Whether or not sovereignty, in the legal sense of the term,
is in fact weakening, sovereignty remains a powerful rhetorical tool with
which to voice political opposition to humanitarian intervention and to
challenge attempts to codify such a doctrine.
The unenthusiastic tolerance of de facto collective humanitarian
intervention suggests major political opposition to a de jure doctrine of
unilateral humanitarian intervention among U.N. members. The
Security Council debates surrounding the narrow passage of Resolution
688, which became the basis for establishing a "no-fly" zone to protect the
Kurds in northern Iraq, illustrate that "substantial political barriers to
action remain" to even ad hoc collective humanitarian
intervention. 121 Resolution 688 narrowly escaped defeat by a margin of
two affirmative votes and China's decision to abstain rather than veto the
resolution. 122 China's vehement remarks in support of its abstention do
not bode well for expanding the concept of humanitarian
intervention, 123 especially in light of its power to veto Security Council
resolutions and amendments to the U.N. [*438] Charter. 124 According to
the Chinese delegation, China "is opposed to interference in the internal
affairs of other countries using the human rights issue as an
excuse." 125 Similar concerns over noninterference in domestic affairs
were echoed by Yemen, India, and Zimbabwe, illustrating a significant
wariness to opening state borders to external intervention even for
ostensibly humanitarian purposes. 126
Moreover, to persuade China not to exercise its veto power, the text of
Resolution 688 did not expressly permit military action in defense of the
Kurds. 127 The subsequent acquiescence to the "no-fly zone" indicates that
the "Chinese and others . . . were willing to tolerate actions de facto that
they would not authorize de jure." 128 This struggle to authorize
collective humanitarianmilitary action even against a rogue state such as
Iraq suggests that codifying a standing doctrine of
collective humanitarian intervention would face vociferous opposition.
If this reluctance has softened, it has not softened much; for example, the
drafters of Resolution 794, which authorized the use of "all necessary
means to establish . . . a secure environment for humanitarianrelief
operations in Somalia," 129 intentionally limited its precedential effect by
citing the unique anarchical conditions in Somalia. 130 Even if the more
recent Security Council resolutions authorizing use of force in Haiti and
the former Yugoslavia [*439] evidence a growing acceptance of ad hoc
de jure collective intervention, 131 codification of a general doctrine of
collective, much less unilateral, humanitarian intervention remains
unlikely in the near future.

One of the most significant, though modest, steps toward the codification
of a standing doctrine authorizing intervention in response
to humanitarian crises is General Assembly Resolution
46/182. 132 Though limited to the delivery of humanitarian assistance to
relieve human suffering, Resolution 46/182 is noteworthy because it
codifies a doctrine of humanitarian assistance not entirely based on
state consent. 133 Despite its relatively benign language and reiteration of
the importance of sovereignty and territorial integrity, 134 Resolution
46/182 was widely opposed by developing nations who feared that
the doctrine could be similarly invoked as a pretext for interference in
their domestic affairs. 135
This "strong current of opinion in the developing world, and particularly
in China, . . . upholding the principle of noninterference in the internal
affairs of states as the only bulwark against the intrusive designs of the
West's 'New World Order,'" 136 has impeded less ambitious attempts to
expand norms of humanitarian intervention and may render futile any
attempt to codify adoctrine of unilateral humanitarian
intervention. Opposition to such an interventionist doctrine would be
all the more fierce.
There are, however, modest indications of progress toward codification.
For [*440] example, India and Zimbabwe, both of whom expressed
concern over Resolution 688 as an encroachment into Iraq's domestic
affairs, expressed an interest in drafting criteria to guide future cases of
collective humanitarian intervention. 137 Such statements implicitly
suggest a growing recognition that codification offers the potential to
limit intervention by curtailing the arbitrariness inherent in ad hoc
authorizations of humanitarian intervention. However, support of
codification has thus far been limited to collective humanitarian
intervention. 138
Despite these preliminary signs of support for codifying a doctrine of
collective humanitarian intervention, as well as Resolution 46/182's
guidelines for coordinating humanitarianassistance, the emerging trend
in favor of codification has "not yet breached the wall of opposition
to unilateral measures." 139 Whether further steps toward codification
are likely to garner enthusiasm remains the subject of much
skepticism. 140 However, the success of any future effort at codification
will largely depend on two factors: (1) the form of codification and (2) the
substantive criteria of the doctrine. It is the consideration of these issues
to which the analysis now turns.
III. FORM OF CODIFICATION
A limited doctrine of unilateral humanitarian intervention could be
codified in one of three forms: (1) an amendment to the U.N. Charter, (2)
a multilateral intervention treaty, or (3) a General Assembly resolution.
Assessing the merits of each form requires acknowledgement of the
substantial political impediments to codification. The following analysis
demonstrates an inverse relation between the legal force of each
proposed method of codification and its political feasibility.
[*441] A. CHARTER AMENDMENT
While little consideration has been given to the possibility of amending
the U.N. Charter to recognize a right of unilateral humanitarian
intervention as an explicit exception to Article 2(4), a number of
scholars have proposed a Charter amendment in the context of
collective humanitarian intervention. 141 Articles 108 and 109 establish
the procedure used to amend the Charter, which has been amended on
several occasions. 142 Expressly recognizing a doctrine of unilateral
humanitarian intervention by amending the Charter would eliminate
controversy over the legal status of the exception and reap the maximum
benefits of codification. However, debate over other critical issues, such
as the amendment's relation to other provisions of the Charter or
whether the exception governed a particular case, would undoubtedly
persist. Amending the Charter, nonetheless, would be the most clear-cut
and forceful method of codification.
While amending the Charter remains a legal possibility, the political
impediments to such an ambitious effort render the prospects of such an
amendment extremely unlikely. 143 Those opposed to codifying a right
of unilateral humanitarian intervention in any form, particularly

6
developing states, would be even more vehemently against enshrining
such an interventionist doctrine in the U.N. Charter. 144 Even among
states sympathetic to the concept of codification in general, proposals for
Charter amendment would prove highly controversial and might
precipitate a shift away from supporting codification in any form. 145
The amendment procedure itself further diminishes the prospect
of codifying a doctrine of unilateral humanitarian intervention in the
Charter. Under the stringent voting requirements of Articles 108 and 109,
any amendment to the Charter requires two-thirds of the members of the
United Nations, "including [*442] all the permanent members of the
Security Council," 146 to vote in favor of and subsequently ratify the
amendment in accord with each state's domestic law. 147 The amendment
process is sufficiently difficult that the Charter has been amended only
five times since its entry into force on October 24, 1945. 148 Although
mustering the support of two-thirds of the United Nations would be
highly improbable, obtaining the support of each permanent member of
the Security Council would prove virtually impossible. Even in the United
States, which has perhaps the smallest chance of ever being targeted
for intervention, one can hardly imagine the U.S. Senate giving its
"advice and consent" to the President to authorize ratification of what
would likely be a domestically unpopular amendment. 149 Moreover, each
permanent member of the Security Council has the power to veto any
proposed amendment. 150 Consequently, China could unilaterally block
the amendment even if every other U.N. member supported the
amendment. In light of its fierce opposition to humanitarian
intervention, the near certain prospect of China's vetoing any
amendment recognizing a right of humanitarian intervention
(unilateral or collective) renders consideration of a Charter amendment
largely academic. 151 Whatever potential advantages amending the
Charter may offer, it is the least feasible of all the proposed methods of
codification.
B. TREATY-BASED INTERVENTION
A doctrine of unilateral humanitarian intervention might also be
codified in a multilateral intervention treaty in which states express
prior consent to intervention should their governments act in violation
of certain agreed-upon criteria. In the context of collective humanitarian
intervention, Professor Stanley Hoffman advocates the negotiation of
a treaty, open to (but unlikely to be signed by) all states, that would
define rigorously the circumstances in
which collective intervention for humanitarian purposes could be
undertaken, for a limited period, by a group of states whose action would
be authorized by a strong majority of the treaty's signers. 152

While suggestions for a convention on unilateral humanitarian


intervention are [*443] also beginning to be advanced, 153 an
international agreement codifying such a right is not likely in the
foreseeable future. 154 Both political and legal obstacles stand in the way
of drafting an effective unilateral intervention treaty.
Like attempts at a Charter amendment, codification of a multilateral
treaty on unilateral intervention would face serious opposition from a
broad range of states. But because such a treaty would bind only those
states that were party to it, opposition may be somewhat less than would
be encountered by Charter amendment. 155 However, any perceived
political advantage of a consensual treaty-based approach must be
balanced against the weakness inherent in such an approach. Even if a
few states agreed on criteria and were willing to authorize a foreign army
to "remove the despot responsible for [the atrocities]," 156 "the very
regimes whose repressive character would make them the most
appropriate targets for justifiable intervention would be the least likely
to agree to such a system." 157 Hoffman acknowledges this limitation of
the treaty-based approach to humanitarian intervention, yet
nonetheless maintains that conditioning certain advantages upon signing
the treaty may prompt some potential abusers to consent to the
treaty. 158 However, the boundary between inducement and coercion is
thin. "States do not sign treaties conferring a unilateral right of
military intervention on other states under ordinary circumstances.
Almost inevitably, such treaties are signed in circumstances that the

weaker party may plausibly describe as coercive." 159 Because coercion


vitiates whatever consent is extracted, intervention pursuant to a
coerced intervention treaty would be no more legal than unilateral
humanitarian intervention in the absence of codification. 160 Because
the treaty's few legal signatories would be [*444] those states least
likely to commit the sort of abuses warrantingintervention, a treaty
approach is of limited utility.
Concluding such an international agreement might face two legal
obstacles in addition to the issue of coerced "consent." First, a treaty
authorizing unilateral humanitarian intervention may conflict with jus
cogens. 161 Article 53 of the Vienna Convention provides that "[a] treaty is
void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law."162 While numerous rules of international law
arguably constitute jus cogens, it is generally agreed that Article 2(4) of
the Charter is a peremptory norm of general international law which
permits no derogation. 163 Given that unilateral humanitarian
intervention is widely considered illegal under Article 2(4), 164 it follows
that a treaty permitting states to act inconsistently with Article 2(4)
conflicts with jus cogens and is therefore void ab initio (from its
inception) under Article 53 of the Vienna Convention. 165
Second, even if Article 2(4) were not a peremptory norm of general
international law, an intervention treaty could be challenged under
Article 103 of the U.N. Charter. 166 Article 103 mandates that "in the event
of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall
prevail." 167 While Article 103 would not
render [*445] an intervention treaty void, it does not allow states to
escape Article 2(4)'s prohibition onunilateral humanitarian
intervention. Thus, Article 53 of the Vienna Convention and Article 103
of the U.N. Charter would combine to nullify the legal force of an already
politically impotentintervention treaty. 168
C. GENERAL ASSEMBLY RESOLUTION
Given the impediments to Charter amendment or a treaty-based doctrine
of unilateral humanitarian intervention, a General Assembly
resolution would be the most realistic approach to codification in the
near future. Paradoxically, the greatest strength of codification by means
of General Assembly resolution actually lies in its legal weakness relative
to the alternative methods of codification.
Though generally not legally binding, a General Assembly resolution can
elucidate and elaborate upon provisions of the U.N. Charter. 169 A
resolution setting forth criteria for measuring the legitimacy of a
particular intervention would not legalize unilateral humanitarian
intervention, but would nonetheless remove some of the ambiguity that
makes the "double level" approach particularly destabilizing. 170 By
communicating the risk of condemnation to states
contemplating interventions that fall short of the requisite criteria,
an intervention [*446] resolution would enhance deterrence of
illegitimate intervention. On the other hand, such a resolution would
simultaneously inform benevolent intervenors of the rare circumstances
in which interventionwould likely be condoned, despite the general
prohibition against unilateral action. Because states intervening in
accord with the criteria would have little cause for anxiety over facing
enforcement action, an intervention resolution would ameliorate the
fear of retribution, a major disincentive to genuine humanitarian
intervention. 171
In sum, the resolution would send the following message to prospective
intervenors: "The international community does not condone your action,
but if you intervene anyway, you must do so according to these
guidelines." Thus, although recognition of a limited right of unilateral
humanitarian intervention in a General Assembly resolution would be
nonbinding, the benefit of such a partial codification exceeds that of the
current "sublegal" approach.
The relatively weak legal status of a nonbinding General Assembly
resolution would be counterbalanced by the increased political viability
of such an approach. Codification by means of a General Assembly
resolution is the most feasible approach because: (1) a nonbinding

7
resolution would face less political opposition than alternate methods of
codification; and (2) General Assembly resolutions are passed under less
stringent voting requirements. First, the nonbinding nature of a General
Assembly resolution would defuse much of the intense opposition to
more binding means of codification. Many states would perceive a
General Assembly resolution as largely hortatory and thus a lesser threat
to state sovereignty than either a Charter amendment or
an intervention treaty. Assuming that the resolution neither "purports to
be declaratory of contemporary international law" nor crystallizes into a
norm of customary international law, 172maintaining the de jure illegality
of unilateral humanitarian intervention would allow states to preserve
their rhetorical opposition to unilateral humanitarian
intervention, thereby reducing fears that such a doctrine might be
expanded. Moreover, the guidelines would provide states with specific
grounds on which to criticize the legitimacy of interventions that fail to
meet the established criteria. Thus, developing states fearful of
pretextual intervention may be more inclined to accept a General
Assembly intervention resolution because it would increase deterrence
of illegitimate intervention while only minimally infringing upon state
sovereignty. Nonetheless, the widespread opposition to General
Assembly Resolution 46/182, particularly among Third World states,
suggests that many states would reject even a nonbinding
resolution codifying guidelines [*447] for unilateral humanitarian
intervention. 173
Second, the less stringent voting requirements for General Assembly
resolutions would increase the probability of passing a unilateral
humanitarian intervention resolution even in the face of substantial
political opposition. Article 18 of the U.N. Charter provides that "decisions
of the General Assembly on important questions shall be made by a twothirds majority of the members present and voting. . . . Decisions on other
questions . . . shall be made by a majority of the members present and
voting." 174 Because setting forth the circumstances permitting unilateral
humanitarian intervention would essentially offer recommended
standards on the propriety of condemnation or enforcement action to the
Security Council, an intervention resolution would likely constitute an
"important question," requiring two-thirds of the General Assembly to
vote in favor of the resolution in order for it to pass. 175 While mustering
the support of two-thirds of the General Assembly behind such a
resolution may prove to be difficult, the resolution would neither be
subject to China's veto power 176 nor have an effect only on those states
supporting the resolution, 177 thereby circumventing two of the major
impediments to the Charter amendment and treatybased intervention options.
Ideally, an intervention resolution would be drafted under the auspices
of a General Assembly-convened conference that would provide an open
forum in which states could express their concerns. 178 In reality, political
opposition to the general idea of unilateral humanitarian
intervention could derail these efforts before any
concrete proposals were even placed on the agenda. Consideration and
formulation of a draft intervention resolution should, therefore, be
initiated by the International Law Commission of the United Nations,
specifically the Codification Division. 179 Established pursuant to Article
13 of the Charter, 180 [*448] the ILC would provide the relatively
depoliticized environment necessary to prevent deadlock, as well as a
body of "persons of recognized competence in international law" who
could analyze the legality of any proposals before submission to the
Sixth (Legal) Committee of the General Assembly. 181 As Judge Nagendra
Singh states:
The great merit of the [ILC] is to act as a bridge or two-way valve between
the private scholars, who receive through their participation in the
Commission's work an enhanced authority and status as international
consultants, and the Sixth (Legal) Committee of the UN General Assembly,
where the representatives of states who understand the Commission's
work meet to sift its proposals and take over the most approval-worthy
as a basis for progressive development. 182

This mechanism might create a draft resolution responsive to both legal


and political concerns, ensuring the maximum likelihood of adoption.
Moreover, an ILC-prepared draft resolution would focus subsequent

debate within the General Assembly, thereby encouraging dialogue


between developed and developing states. 183 Finally, the ILC's extensive
experience in preparing draft resolutions and conventions suggests that it
has precisely the expertise needed to take the first step toward
codification. 184
Trading legal force for feasibility, partial codification through a General
Assembly resolution represents a compromise between the advantages of
codification and the political impediments to recognizing a doctrine of
unilateral humanitarian intervention. Should an
intervention resolution ultimately be adopted by the General Assembly,
it may establish a platform for eventually undertaking more ambitious
efforts at codification, such as an intervention treaty. 185 However, the
political viability of even so modest a means of codification as a General
Assembly resolution will depend as much, if not more, on the substantive
criteria as on the form of codification.
[*449] IV. CRITERIA
The political and practical success of codification will largely depend on
the choice of appropriate criteria conditioning the right of unilateral
humanitarian intervention; in fact, the advantages of a
codified doctrine flow from the existence of substantive criteria
governing the unilateral use of force. As Michael Bazyler states,
"If humanitarian intervention is to exist as a doctrine of international
law, and not just as a post hoc excuse for any armed attack, a simple,
working set of standards must be formulated." 186 Scholars of unilateral
humanitarian intervention have almost unanimously agreed with
Bazyler's statement, each suggesting their own criteria that should be met
prior to intervening unilaterally. 187 This Part will set forth criteria that
are not only normatively desirable, but that would also narrowly
circumscribe intervention so as to minimize state opposition to
codification.
Establishing criteria runs the risk of being too rigid, thus discouraging
legitimate humanitarian intervention, or of being too broad, thus
inviting abuse. 188 Erring on the side of rigidity is more appropriate in the
context of unilateral humanitarian intervention because: (1) the fear
of abuse of unilateral intervention is particularly acute;
(2) codifying strict criteria would be less politically controversial; (3)
collective intervention would remain an option; and (4) a state would
likely not be condemned for an intervention that was clearly legitimate
but not in accord with the doctrine.
First, intervention should be reserved only for those cases involving
"largescale atrocities," 189 intentionally defined imprecisely as the actual
or imminent death of (1) a large number of individuals or (2) a significant
percentage of a particular racial, religious, ethnic, or national
group. 190 Though intervention should not be predicated upon some
minimum body-count, the legitimacy of intervention rises in proportion
to the death toll. 191 Although twenty deaths would be a tragedy, twenty
thousand deaths would be an atrocity. Some commentators propose
justifying intervention not only in cases involving widespread loss of life,
but also in instances of less grievous, but nonetheless tragic, human rights
abuses, such as campaigns of mass torture or forced
resettlement. 192 [*450] While these lesser abuses clearly warrant
prompt denunciation by the international community, Bazyler correctly
observes that
nations should undertake the drastic remedy of armed intervention only
to prevent the massive killing of people. Allowing nations to violate the
territorial sovereignty of another nation only to prevent mass killings
minimizes abuses of the doctrine and, at the same time,
sanctions interventions when killings occur on a mass scale. 193

Limiting the doctrine to large-scale atrocities would reduce political


opposition to codification by decreasing the possibility of
pretextual intervention. Moreover, even those states with imperfect
human rights records would have little cause to
fear intervention, provided that government repression does not give
way to mass slaughter. In addition, scholars who generally reject the
legality of unilateral humanitarian intervention may be more inclined

8
to support such an approach. 194 Thus, above all other criteria,
conditioning intervention upon the commission of "large-scale
atrocities" is crucial to the viability of codification.
Second, unilateral humanitarian intervention should be conditioned
upon Security Council deadlock. 195 Under this procedural criterion, a
state contemplating unilateral intervention would be required to notify
the Security Council of the need for humanitarian intervention and
seek authorization for collective action. Should the Security Council prove
unwilling or unable to authorize collective intervention, 196 a state would
then be justified in undertaking humanitarian intervention unilaterally
as long as the other criteria were satisfied. While unilateral
interventionwould be permitted as a remedy of last resort, this criterion
purposely expresses a preference for collective action. 197
Third, the resolution should expressly reiterate that the Security Council
is empowered to preempt or terminate an intervention. 198 Thus, even if
the [*451] Security Council became deadlocked over whether to
authorize a particular intervention -- satisfying the second criterion
for unilateral action -- the Security Council would not be precluded from
passing a resolution affirmatively prohibiting unilateral
intervention. Because the Security Council might take Chapter VII
enforcement action against states that nonetheless persist in intervening,
such a provision would further alleviate fears of both
pretextual intervention and the use of force beyond the limits of
necessity and proportionality. 199
The second and third criteria would work in tandem to circumvent a
potential Chinese or Russian veto thwarting legitimate humanitarian
intervention. For example, were China to veto authorization of
collective humanitarian intervention, perhaps for fear of establishing a
precedent, 200 a state might nonetheless intervene unilaterally. If China
then called for condemnation of the unilateral intervention, another
permanent member of the Council could veto the condemnation
resolution. Thus, the veto power is shifted in favor of humanitarian
intervention. Although this deliberate undermining of China's veto
over humanitarian intervention might prove politically unworkable,
these two provisions could alternatively be viewed as a face-saving tool.
Consistent with China's de facto tolerance of collective humanitarian
intervention, China could veto an intervention that it tacitly supported
without risking misinterpretation of a decision not to veto
the intervention as acceptance of encroachments upon a state's
domestic jurisdiction. Because China apparently feels more threatened by
the concept of intervention than byintervention itself, Chinese
opposition may be less fierce than it would initially seem.
Fourth, unilateral intervention should be predominantly motivated
by humanitarian concerns. 201 While few states would intervene for
purely altruistic reasons, an intervening state's motives should be
carefully scrutinized to reduce the risk of
pretextual intervention. 202 Conditioning unilateral action upon the
exhaustion of all practicable nonforceful alternatives would increase the
probability that intervention is truly humanitarian. 203 Moreover, such
a requirement would prevent the premature use of force when the
situation may be remedied through peaceful means. 204
Fifth, intervention should be limited in objective, duration, and level
of [*452] force. 205 This criterion essentially reiterates the international
law mandate that the use of force be both necessary and proportional to
the task at hand. 206 Bazyler captures the elusive essence of this criterion
as it relates to humanitarian intervention: "Intervening states should
use only enough military force to cease the killing and, if necessary, to
remove the despot responsible for it." 207 Thus, the primary objective
of intervention should be to put an end to the commission of atrocities
within the state -- which is, after all, the very rationale upon
which intervention is predicated. When possible, intervention should
be conducted in a manner that minimizes disruption to existing
governmental authority within the state, so as to avoid unnecessary
infringement on the political independence of the state. 208 However,
when the only means to prevent further atrocities is to depose the
abusive regime, this option should not be categorically precluded. As
Fonteyne states:

[This criterion] purports to limit the lawfulness of extensive alteration by


the intervenor of the internal authority structures of that State, to those
situations where overthrow of the government in power . . . appears to be
the only available means of putting an end to ongoing or threatened
human rights violations of particular gravity. 209

Given the unique circumstances surrounding any


particular intervention, the requirement of necessity and
proportionality should be a guiding principle to be applied on a case-bycase basis, rather than a rigid standard that lacks the flexibility needed to
respond appropriately to a given crisis.
The inclusion of two final provisions in the intervention resolution,
though symbolic, may further increase acceptance of codification. First,
the resolution should expressly reaffirm state sovereignty, political
independence, territorial integrity, and noninterference as fundamental
principles of international law. Security Council Resolution 688 did
exactly this, simultaneously affirming and [*453] encroaching upon
Iraq's sovereignty. 210 Second, using paragraph 3 of General Assembly
Resolution 46/182 as a model, the proposed resolution should stipulate
thatunilateral humanitarian intervention "should be provided with the
consent of the affected country and in principle on the basis of an appeal
by the affected country." 211 Though measuring whether a country has
consented to intervention would be difficult, especially when the
government is itself committing the atrocities, consent of the people may
be presumed in cases where thousands of people face
extermination. 212 While these measures are of primarily symbolic value,
they may nonetheless prove politically expedient by helping to assuage
concerns that yet another chink has been made in the rusting armor of
state sovereignty.
CONCLUSION
Codifying a doctrine of unilateral humanitarian intervention requires
striking a delicate balance between the fundamental principles of an
international legal system that was designed to prevent international
aggression but often finds itself forced to respond to cases of internal
atrocities. A codified doctrine would enhance the legitimacy of
international law while preserving state sovereignty and minimizing
conflict, reconciling this contradiction on both a theoretical and practical
level. Whatever benefits codification may ultimately yield, "any effort to
broaden the legitimacy of either non-forcible or forcible humanitarian
intervention must balance the political concerns of these governments
with the humanitarian needs of their people. The undertaking will not
be a zero-sum game." 213
The political impediments to codification, though substantial, may not
prove insurmountable, provided that the doctrine is not binding and the
criteria justifying intervention are narrowly drawn. This note has
proposed the drafting of a General Assembly resolution stipulating
several criteria upon which unilateral [*454] humanitarian
intervention should be conditioned, not because such a doctrine is
forthcoming, but rather to encourage dialogue among scholars and states,
before the United Nations is eventually confronted by
a humanitarian cataclysm to which it is unable to respond. Although the
world may not yet be ready to codify a doctrine of unilateral
humanitarian intervention, it is not too early to begin seriously
contemplating the complex issues surrounding codification. In so doing,
we may even glean additional insight into the broader role of
international law in the twenty-first century.