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BEYOND LIBYA: MORAL NORMS IN INTERNATIONAL LAW AND THE USE OF FORCE BY STATES

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The UN-sanctioned intervention in Libya, along with the unfolding crisis in Syria, have once again brought questions concerning the limits of the law on the use of force by States to the fore. While action in Libya received Security Council approbation, no such intervention in Syria has thus far been sanctioned. Both these crises have renewed the doctrinal debate around unsanctioned humanitarian intervention, which has been a popular topic particularly since NATO’s 1999 intervention in Serbia. The author notes two trends in the debate: a positivist camp that brands humanitarian intervention illegal under current rules; and a moralist camp that eschews assessing the legality of such intervention directly, but rather argues in favor of its (moral) legitimacy. The author goes on to posit that neither camp is correct in its reasoning and that the moralists may have been over-hasty in their flight from (purely) legal reasoning. General principles of law – and particularly, principles of equity – are presented as a moral corrective as well as a principal source of international law. The author notes that this normative category was left unexamined by both the positivist and moralist camps, and argues that the general principles source may hold the key to a more nuanced understanding of the international legal regime on the use of force by States, including a potential legal framework for humanitarian intervention. In addition, he argues that the same general principles must be used in interpreting the ambit of any resolution authorizing the use of force by States, including that which authorized the 2011 intervention in Libya.

10.1163/22116133-90000212
/content/journals/10.1163/22116133-90000212
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/content/journals/10.1163/22116133-90000212
2011-01-01
2016-12-09

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