Introduction.

AuthorMalone, Linda A.
PositionSeeking Reconciliation of Self-Determination, Territorial Integrity, and Humanitarian Intervention

The whirl of debate over the Kosovo crisis often made reference to the "competing" norms of self-determination and territorial integrity, of humanitarian intervention and prohibitions on force except in self-defense. The Essays that follow grapple with humanitarian intervention on its face and as applied, as constitutional law scholars would say. Professor Bartram Brown explores the legitimacy of humanitarian intervention as a norm of international law against the, difficult backdrop of its justification in the Kosovo crisis.(1) Professor Julie Mertus faces the monumental problems of unleashing the doctrine, struggling to find its limitations on the application of force.(2)

The murky legal pedigree of humanitarian intervention is muddled even more by the humanitarian causes on which the intervention depends. The new world order seems to have a love-hate relationship with the concept of statehood: everyone wants one but no one wants to be a part of the ones that already exist. The demise of colonialism and apartheid have made the villains and the victims more difficult to identify. We are left only with those competing norms: the U.N. Charter's prohibition on the use of force except as a last resort and in self-defense;(3) the preservation of the territorial integrity of states;(4) the exaltation of peoples' right of self-determination in the U.N. Charter,(5) the international covenants,(6) and myriad other human rights documents;(7) the right of self-determination that encompasses the right of a state to determine its own government, free of outside interference; and the right of peoples to seek and receive support in pursuit of their self-determination.

The pertinent question undertaken in this Special Project is where does humanitarian intervention, or the use of force more generally, fit into this convoluted puzzle of competing norms of international law. If humanitarian intervention has no place in this paradigm, it becomes even more suspect as a norm that has survived the post-Charter prohibition on the individual or collective use of force outside of the context of self-defense.

Secession from a state is itself a confrontational act. It inevitably invites a counterresponse from the established state in terms of force. The norms of international law that recognize the territorial integrity of an established state and the use of force by a state in self-defense are elevated to the status of jus cogens. Secession cannot be equated with self-determination. Otherwise, international law would be encouraging provocation or use of force under the umbrella of self-determination and yet be condemning the established...

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