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Adelaide Researcher, Stacey Henderson asks: Is Sovereignty Always Supreme?

Adelaide Law School lecturer Stacey Henderson  will present at the 2018 Australian & New Society of International Law conference in Wellington, NZ, on Thursday 5th July and will consider whether it is appropriate, in certain circumstances, for one State to intervene where another is known to be committing atrocities?

Permission to Intercede or Sovereignty Supreme?

 

Is it acceptable in the 21st century to require the international community to do nothing when atrocity crimes are being committed?  The international law principles of sovereignty and non-intervention, when taken at their highest, prohibit States from intervening in another State regardless of what atrocities may be occurring there.  This traditional legal view is being challenged by an emerging practice of States choosing to act, inspired by the concept of the responsibility to protect (‘R2P’).

Drawing on R2P, this paper develops an original conceptual tool – intercession – to capture and explain the increasing use of measures less than the use of force by States to respond to atrocity crimes occurring in other States.  Through three case studies of recent State practice (sanctions, assistance to opposition groups, and the Arms Trade Treaty), this paper demonstrates intercession at work in different ways across diverse areas of international law.  Each of the case studies demonstrates the accordion effect of intercession – an increase in permissible State responses to atrocity crimes occurring in other States, coupled with restraint exercised by States in the formulation and implementation of those responses.

This paper argues that intercession under R2P provides a conceptual solution to the dilemma of whether it is acceptable for the international community to do nothing by articulating when and how States may respond to atrocity crimes in other States.  This practice of intercession charts a way forward for the international community to take actions that are sensitive to both State sovereignty and humanitarian imperatives.

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