Consent-Based Humanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign

70 Pages Posted: 29 Apr 2014

See all articles by Oona A. Hathaway

Oona A. Hathaway

Yale University - Law School

Julia Brower

Yale University - Law School

Ryan Liss

Western University - Faculty of Law

Tina Thomas

Yale University - Law School

Jacob Victor

Albany Law School; Yale Information Society Project; NYU School of Law

Date Written: December 1, 2013

Abstract

The repeated failure of the United Nations Charter regime to respond to humanitarian crises — and to prevent interventions outside the regime — has laid bare a conflict that lies at the heart of modern international law. This failure has revealed that the twin commitments on which the post-World War II international legal system has been built — sovereign rights and sovereign responsibilities — are often deeply at odds. The response of scholars to this tension has often been to choose sides in the fight. Scholars who place greater value on human rights than state sovereignty have sought to craft exceptions to the prohibition on the use or threat of force. Those who place greater value on sovereignty (and, they would argue, democratic rule of law), have rejected any humanitarian intervention not authorized by the Security Council as illegal and on occasion have portrayed the human rights movement as “anti-sovereigntist” and even “anti-democratic.” In this Article, we offer another way forward — one that aims to respect sovereign rights while helping states meet their sovereign responsibilities and thereby alleviate the tension between the twin commitments of the modern international legal system. Rather than seek to craft an exception to state sovereignty to meet humanitarian aims, we argue for empowering states to meet their sovereign responsibility through what we call “consent-based intervention.”

Keywords: United Nations, Humanitarian Intervention, Consent, Customary International Law

JEL Classification: K33, N40, K42

Suggested Citation

Hathaway, Oona A. and Brower, Julia and Liss, Ryan and Thomas, Tina and Victor, Jacob, Consent-Based Humanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign (December 1, 2013). Cornell International Law Journal, Vol. 46, 2013, Yale Law School, Public Law Research Paper No. 503, Available at SSRN: https://ssrn.com/abstract=2429941

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Julia Brower

Yale University - Law School ( email )

127 Wall St
New Haven, CT 06511

Ryan Liss

Western University - Faculty of Law ( email )

London, ON
Canada

Tina Thomas

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

Jacob Victor

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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