Humanitarian Intervention: An Interpretative Approach

Abstract

This thesis reflects over under what circumstances States ought to have a moral duty and legal right to use military force as an instrument to alleviate mass suffering. It does so by evaluating these two questions from within Ronald Dworkin’s integrated work on the political legitimacy of States and the legitimacy of the United Nations Charter. The thesis first examines the source and nature of States’ moral duty to use military force to stop mass atrocity crimes (‘duty to protect’) on the basis of Dworkin’s third-way for understanding Statehood. It argues that States’ moral duty to protect is best characterised as a pro tanto duty that can be defeated by other obligations that they have vis-à-vis their own citizens and under international law. The thesis outlines a proposal for how the moral duty to protect can continue to be institutionalized in the UN system through a soft strategy that safeguards the democratic legitimacy of States and the legitimacy of the international institutional order. The soft strategy consists of continuing to nurture the duty to protect as a moral working lens that can be mobilized to put diplomatic pressure on States to react with military force when it is permitted under international law. The thesis then divulges how the open textured language of Article 2(4) of the UN Charter makes the legality of humanitarian intervention as a category indeterminate. To change the paradigm of the debate, the thesis carries forward Dworkin’s constructive ‘interpretative approach’ to legal material. The constructive ‘interpretative approach’ is predicated on identifying the one reading of Article 2(4) that is most likely to have the effect of strengthening the legitimacy of the legal order regulating jus ad bellum. The thesis argues that humanitarian intervention ought to exist as a legal exception to the prohibition on the use of force when the Security Council has failed to authorize member States to use ‘all necessary measures’ to stop a genocide. The thesis examines how NATO’s UN authorized humanitarian military intervention in Libya in 2011 had the effect of undermining core moral aims of the UN Charter. It argues that the Security Council can reduce the risk of that future authorized humanitarian military campaigns have the effect of undermining core moral aims of the UN Charter by limiting Chapter VII responses to those rare occasions when governments are conducting genocidal campaigns. In order not ‘hold the line’ on jus ad bellum, the thesis introduces a new constructive ‘interpretative approach’ to customary law ascertainment and reflects over how the paradigm may furnish a democratized vision for explaining and justifying changes in jus ad bellum. It applies the paradigm to the opinio juris generated as a result of the non-UN authorized missile strikes against Syria’s chemical weapons installations in 2018 and elucidates how it may be mobilized to explain why a limited legal right to use military force for the specific humanitarian objective of stopping further use of chemical weapons is crystalizing in customary law.

Date of Award	1 Feb 2024
Original language	English
Awarding Institution	King's College London
Supervisor	Mervyn Frost (Supervisor) & Mats Berdal (Supervisor)