Author(s): Slobodan Milenković
Subject(s): Law, Constitution, Jurisprudence, International Law, Human Rights and Humanitarian Law
Published by: Правни факултет Универзитета у Нишу

Summary/Abstract: In this paper the author analyzes the question of the humanitarian intervention which was especially actual in the XIX century. This institution has a special position in the contemporary international law, too. Humanitarian intervention finds itself nowdays among the measures for protection of the rights of a niass of people, because individual rights of man on the universal plane come under the paragraph 7, Article 2 of the United Nations Çhàrter. The protection of the rights of man has had a long tradition and it is thought that Vittoria in the XVI century was the first one to explain this institution of protection. But, three centuries had to pass untill this protection was implemented. Humanitarian intervention represented the first measure; from the XIX century it changed many of its characteristics, but it survived as one device for the protection of the rights of man. This view, is opposite to the standpoints of Dahin, Sibert and Verdoodt, who stated, thought not explicitly, that the humanitarian intervention was practised only in the XIX century, and that later on it was superseded by some other devices {for example, conventions, on the rights of man). The changes of the characteristics of the humanitarian intervention during its applying can be summarized on the following way. First of all, evolution of this institution can be traced on the example of the evolution of the subject of protection. It is no more the protection of one's own citizens in foreign countries, nor different minorities in particular countries (Guggenheim), but of all the people living on the particular state territory. Humanitarian intervention is practised even in order to protect the citizens' rights violated by their own state (Bartos, von der Heydte, Sauer, Ver dross). Active subjects of this protection of the rights of people are no more individual states, as it was the case in the XIX and even XX century, but the organized international community. Though the organized international community should have exclusive right to intervention, international practice gives us contrary examples (the intervention of the USA in the Dominican Republic and Congo). The ground for this kind of intervention had an evolution of its own. At the beginning, the ground for undertaking of such measures was violation of ius naturalis (Crotius), later on it was violation of the principles of the human civilization (Arntz), and - violation of certain rights of people (Fauchille). Nowdays there exist certain international acts which can be taken as a ground in case of existence of violation of the rights of man (United Nations Charter, Universal Declaration on the Rights of Man). In close connection with this is the question of compatibility of the paragraph 7, Article 2 of the United Nations Charter and the protection of the mass rights of people. As to this problem, there were formulated three standpoints. As to the first one, the rights of man are part of domestic jurisdiction of the state, which means that the: international community may not intervene in order to protect them (Preuss, Tavrov, Krilov, some of the governments — of the South African Federation, and in certain occasions of France and England). As to the second standpoint, the rights of people consist of questions which are generally regulated by international law, leaving the broad scope for regulation to the nations (Verdross), or it is argued, that the rights of people are under domestic jurisdiction of the state except if their violation does not represent a threat to peace and international security (Morozov, Tomko, International Federation of Democratic Jurists). As to the third standpoint, the rights of man are in case of their mass violation tinder the jurisdiction of the international law (Scheuner, Alfaro). United Nations Charter and Universal Declaration on the Rights of Man accept this last view. In the scope of measures undertaken while performing humanitarian intervention there have appeared some important changes, too. Once among the most applied measures was armed force, and less frequent nonrecognition of governments, break of diplomatic relations etc. Nowdays, as to the question of applying the armed force, doctrine has divided itself into two blocs. Some authors are against its applying (Dahm), while some except even such a possibility (Lauterpacht, Glaser, Osnickaja). In this paper the view is taken that applying of the armed force as an instrument of the humanitarian intervention should not be ejected, but that it shoul be only applied gradually, i.e., that the armed force should be applied only if other instruments had not given any results. The contemporary state in applying of this measure is explained through the analysis of the measures undertaken by the United Nations against the South African Federation, and South Rhodesia, partly. General Assembly shall be competent for the providing of this measures, as well as the Security Council concerning the measures from the Chapter VII of the United Nations Charter, though the General Assembly brought resolutions concerning the sanctions out of the Chapter VII which is not in accordance with the United Nations Charter. The states nowdays obliged to undertake the measures of humanitarian intervention on bases of the United Nations Charter and the resolution of the United Nations that has certain legal effect (Universal Declaration on the Rights of Man). Because of that, states can no more perform humanitarian intervention or not on behalf of their own interests.

  • Issue Year: V/1966
  • Issue No: 5
  • Page Range: 181-201
  • Page Count: 21
  • Language: Serbian