Fox: Invitations to Intervene After the Cold War: Toward a New Collective Model

Gregory H. Fox (Wayne State Univ. - Law) has posted Invitations to Intervene After the Cold War: Toward a New Collective Model (in Max Planck Trialogues on the Law of Peace and War, forthcoming). Here's the abstract:

The argument supporting a right to intervene at a government’s request would seem straightforward. The UN Charter endows states with a virtually absolute right to bar outside forces from entering upon their territory. But governments, as the state’s agent, have broad discretion to exercise this right or not to do so; and, if not, to invite foreigners to assist in any actions they could lawfully undertake themselves. That choice is simply an example of states’ general ability to consent to actions otherwise considered unlawful. Consent – so the argument goes – precludes the wrongfulness of the foreigners’ presence and vitiates any violation of the state’s territorial integrity.

Despite this appealing logic, few scholars believe the claim accurately describes contemporary international law. But there is even less agreement on the alternatives. This chapter will focus on two aspects of consensual interventions that recent scholarship has not addressed at length.

First, it asks whether any of the various theories of consent find support in a comprehensive assessment of post-Cold War practice. To my knowledge, no effort has been made to compile all examples of consensual intervention after the end of the Cold War and examine systematically how the United Nations, regional organizations and leading states have reacted. The discussion of this practice will rely on a new dataset compiled for this purpose.

Second, the chapter focuses particular attention on the practice of the UN Security Council. The data reveal that the Council has issued resolutions or Presidential Statements on an overwhelming proportion (82%) of consensual interventions since 1990. Many scholars have focused on the international community’s inability to agree on factual aspects of contested interventions. These include whether an invitation was in fact issued, whether the inviting party exercised effective control over a state and whether a conflict had reached the level of a ‘civil war’. But controversies over these factual predicates for a valid invitation are rendered largely irrelevant through collective determinations by the Council, which enjoys an authority to characterize legally significant facts and to distinguish between lawful and unlawful uses of force.