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

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 “antidemocratic.” 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.”