New research on the legal justification for humanitarian intervention by foreign states has opened up the debate on sovereignty and human rights obligations. Ciaran Burke presented the research, entitled “The Equitable Theory of Humanitarian Intervention”, to a panel of experts at the European University Institute at Florence. Speaking after the “doctrinal debate” in which professors Martti Koskenniemi (Helsinki), Christopher Rossi (University of Iowa) and Francesco Francioni (EUI), tested his ideas, Dr Burke said he was “extremely pleased” to be awarded his PhD.
Dr Burke conducted the research under the former United Nations Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism, Professor Martin Scheinin, who told The Global Herald that the research gives “better formulation to the debate” on the legal basis for humanitarian intervention. The law professor and human rights expert said that some elements of the panel were more willing to accept the blur between law, morality and politics, but that for legal purists such as himself, it is important that the justification for humanitarian intervention be better clarified.
The research stems from an issue brought to light by the international intervention in the 1999 Kosovo conflict, where a seeming lack of ulterior motives such as oil and the absence of United Nations Security Council approval, created a uniquely illegal, yet “altruistic”, intervention in Serbia on behalf of the Kosovan Muslim population who were under threat. The case created a division between legal theorists, who on the one hand saw the intervention as illegal (positivists) and on the other, justified the intervention on moral and political grounds (moralists).
Dr Burke’s concept is not an argument for a new treaty allowing such interventions, rather, the research builds upon existing principles of law and statute to find a “third way” to frame the discussion beyond the illegal-yet-moral dichotomy.
Burke’s thesis outlines how international law is drawn from treaties, customary law and General Principles of Law. The researcher contends that little attention has been paid to General Principles of Law, which has often been regarded as a vague concept. Instead, Burke applies a scientific approach to finding General Principles of Law by comparing the legal systems of 20 countries including the EU power states, who have exported their systems to colonies in the past or who have been copied by other nations, Japanese law, Chinese law and South African law among other systems.
The principles of law used by these 20 representative nations were then filtered, to find those national principles which had been included in the judgements of the International Court of Justice. Principles which cut across representative nations and both national and international arenas were then counted as General Principles of Law. He focussed on general principles of equity – a legal concept of avoiding adverse outcomes of applying the law too rigidly. This allowed Dr Burke to explore potential room within existing law to avoid the adverse outcomes of international law which simultaneously decries gross and persistent human rights violations at the same time as denouncing interventions.
When asked whether all states have a duty to uphold human rights, Dr Burke explained that in order to opt of out the human rights obligations of states, a given country must consistently object to human rights law in the international arena in order to be exempted.
Out of these principles, Dr Burke suggests a secondary method of formulating a legal intervention in cases of gross human rights abuses, when the UN Security Council does not, or will not grant approval for such action.
He posits that those states which are able and willing, can form a collective community of interventionists, providing that they have not committed gross and persistent human rights abuses in their own territory – the so-called “clean hands” principle – and do not act alone. Moreover, the “coalition of the willing” must have no interests in the action beyond the protection of civilians and human rights. There must have been efforts to resolve the humanitarian crisis peaceably and the action taken must be executed effectively.
This framework attempts to close the loophole which previously required states to provide human rights protections without providing a remedy for occasions when states reneged on those responsibilities. It opens up intriguing new fronts of debate on the measure of individual states’ moral high ground, the definition of national self-interest and the dangers when states invent or obfuscate evidence in order to justify humanitarian intervention.
Dr Burke will continue to work under Professor Scheinin as a research assistant in addition to teaching and completing a research project on French and Scottish pre-trial detention. He is looking to publish “The Equitable Theory of Humanitarian Intervention” in book format in the near future.