Use of Force for Humanitarian Intervention

Permissibility Under the United Nations Charter
By Rajiv R. Haté
Rajiv Haté, a third year student at Albany Law School, is a senior editor for International Legal Studies. He is from Toronto, Canada and is a graduate of the University of Toronto.
He prepared this paper for the International Law of War and Crime Seminar, Fall 2011.


Prior to 1945 there was no customary international law prohibiting a state’s unilateral resort to force. This changed in 1945 when international politics was introduced to the Charter of the United Nations (UN), in which Article 2(4) prohibited states from the unilateral resort to force. When the Charter was adopted, States agreed to refrain from the use of force or the threat of force in their international relations and instead consented to an obligation to settle all disputes by peaceful means.


The use of force for humanitarian intervention is one circumstance in which the stringent UN restrictions on the use of force comes into question. Humanitarian intervention is the use of force by a foreign nation in the internal conflict of another state for the purpose of preventing and/or stopping large-scale atrocities or acute deprivations, such as genocide and crimes against humanity. Humanitarian intervention only arises when effective peaceful measures have been exhausted, meaning that before the use of force for humanitarian purposes can be invoked, it must be demonstrated that such use of force is absolutely necessary to prevent whatever human rights violations are occurring.


However, since the UN strictly restricts the use of force unless it meets one of the two exceptions of self-defense or the authorized use of force by the Security Council, technically the use of force for humanitarian purposes is illegal unless it is authorized by the Security Council. The problem with this is that, to reach an agreement to take forceful action on a state for humanitarian purposes is extremely difficult considering that some evidence may be ambiguous, some will argue it is an internal conflict that foreign countries should not get involved in, and in any given case there may be major powers resisting such an attempt at intervention.


On the other hand, to wait until there is enough evidence or until a consensus is reached or until the Security Council authorizes the use of force for humanitarian purposes, is likely to result in the loss of thousands of lives which could have been saved had the use of force been authorized earlier.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Non-State Actors and Transnational Conflicts

The Changing State of International Warfare

By Tschika McBean

Tschika McBean, a co-Executive Editor of International Law Studies, is an LL.M candidate in International Law at Albany Law School. She is a graduate of the College of Law of Loyola University New Orleans. In addition to the United States, she has studied international law in Austria and Costa Rica. Her writings have appeared in publications such as the NYU Gallatin Literacy Project and Ithaca College’s academic journal. She was the president of the International Law Society at Loyola and she has interned or worked in several human rights organizations, including the Tompkins County Human Rights Commission, Citizens for Global Solutions, the Advancement Society and the New Orleans Family Justice Center. She has lived in five countries, spanning from Guyana to Morocco, and is currently working as a research assistant for Albany Law School's Distinguished Professor James Gathii.

This paper, like her presentation on Darfur that was published on this site earlier this year, was prepared for the International Law of War and Crime Seminar, Fall 2011.

The trend in global warfare, whereby States are forced to combat non-state actors such as Al Qaida and other armed groups who may or may not be supported by another State, is a pressing issue that necessitates a review of the current laws governing international warfare. In other words, the nature of fighting international conflicts has changed and the laws governing these conflicts must evolve as well. This is especially true in relations to securing accountability for the actions of rogue non-state groups that are independent of State support.

Furthermore, it is inarguable that present day international wars have moved beyond the confines of the Geneva Conventions, whereby the main actors (states, military combatants and civilians), their rights and responsibilities are clearly defined. By contrast, non-state actors, such as Private Military Security Contractors (PMSC), mercenaries and independent and State sponsored terrorists groups, are radically changing this equation. Many States are becoming increasing dependent on these groups to fight their wars, while the rights and responsibilities of these non-state actors remain nebulous.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

Impermissible Subsidization of State-Owned Enterprises (SOE's)

Alternative Methods of Assessing in the WTO Dispute Settlement Body

By John R. Forbush

John Forbush, a third year student at Albany Law School, is a senior editor on the Albany Law Review. He is a graduate of Union College and Carnegie Mellon's Heinz School.

He prepared this paper for Professor James Gathii's course, International Business Transactions,Fall 2011.

A March 2011 World Trade Organization (WTO) Appellate Body decision, overturning the United States’ issuance of countervailing duties on specific Chinese imports, established that a mere showing of a firm’s majority “state-owned” status is not, on its own, sufficient to justify the imposition of countervailing measures. The prominence of state-owned enterprises (SOEs) in the Chinese economy presents challenges to established methods for deciphering, calculating, and punishing foreign subsidization of U.S.-bound imports.

Although the decision wisely accommodates the existence of state-owned enterprises, this evidentiary standard is devoid of guidance in terms of delineating when state ownership and support of firms “crosses the line” and becomes “actionable” by way of countervailing measures. For countries seeking to impose countervailing measures on SOE imports, the lack of transparency that characterizes many SOEs poses significant challenges in assessing when an SOE is being impermissibly subsidized and used as an instrumentality of the state.

This paper examines how application of alternative legal standards might produce different and, ideally, more satisfactory results for the United States in efforts to defend the future imposition of countervailing measures against subsidized state-owned enterprises.
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To read the entire paper, open HERE.

Indicia of Civilization

A Foundational Principle in International Law

By Nicole Nielson

Nicole Nielson, a third year student at Albany Law School, is a member of the Albany Law Review, the student Executive Editor of the Law Review's annual State Constitutional Commentary issue, and a Senior Editor of the Center for Judicial Process.

She originally prepared this paper on the concept of "civilization" for the International Law of War and Crime Seminar, Fall 2011.

The term “Civilization” is imbued with deeply subjective meaning. Individuals define the term anecdotally, in relation to and with respect to their own experiences and perspectives, not at all unlike the way that countries, political and geographical entities give the term meaning. As such, given the multitude of perspectives and numerous cultures on our planet, absent substantial consideration and study, civilization is a term ill-suited to a single definition and thus frequently misunderstood. At the core of what civilization means is its application, particularly with respect to notions of sovereignty of a country or political or geographical entity. Classification as a civilized entity carries the benefit of the presumption of sovereignty. This presumption accords deference with respect to the sovereign’s decisions and actions inside its borders.

The tension of civilization and sovereignty are pervasive in the establishment and enforcement of international laws because voluntary and collective agreement through treaty, legislation or agreement otherwise, about what is just and what is permissible are what comprise international law. Thus, international law rests on the relationships built through recognition of sovereignty; recognition predicated on having met a standard of civilization.

The issue with civilization as the foundational principle for international law is that its definition and application are heavily weighted in favor of the lens of western culture, which does not often afford legitimacy to inevitably divergent lenses of multiple civilizations. The inability to accommodate cultural pluralism in international law, and the persistence of the western perspective, is a barrier to the effectiveness of international law and the establishment and maintenance of international relationships.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.