Humanitarian Intervention and the Distribution of Sovereignty in International Law

Author: Macklem, Patrick

Source: Ethics & International Affairs, Volume 22, Number 4, Winter 2008 , pp. 369-393(25)

Publisher: Wiley-Blackwell

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Abstract:

Legal debates about humanitarian intervention—military intervention by one or more states to curb gross human rights violations occurring in another state—tend to assume that its legitimacy is irrelevant to its legality. Debates among philosophers and political theorists often assume the inverse, that the legality of humanitarian intervention is irrelevant to its legitimacy. This paper defends an alternative account, one that sees the legality and legitimacy of humanitarian intervention as intertwined. This account emerges from a conception of international law as a legal domain that structures global politics by treating sovereignty as a legal entitlement that it distributes among the multitude of legal actors that it recognizes as states. Drawing on a long standing debate among domestic legal theorists about the rule of law, it first identifies formal constraints on the UN Security Council‘s discretion to authorize the use of force to end human rights violations. Developing a distributive conception of international human rights, it then identifies substantive considerations that shed further light on the legality of intervention. It suggests that members of the Security Council must give reasons when exercising their discretion to authorize the use of force and that some reasons might divest a member’s vote of legal validity.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1747-7093.2008.00172.x

Publication date: December 1, 2008

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