The African Union's Right of Humanitarian Intervention as Collective Self-Defense

By Wyse, Christian | Chicago Journal of International Law, Summer 2018 | Go to article overview

The African Union's Right of Humanitarian Intervention as Collective Self-Defense


Wyse, Christian, Chicago Journal of International Law


Table of Contents

I. Introduction....................297

II. Competing Collective Security Frameworks.....................299

A. The U.N. Charter.................... 300

1. Article 2(4): The Prohibition on the Use of Force. ....................300

2. Chapter VII: The United Nations Security Council. ....................303

3. Article 51: Self-Defense. ....................304

4. Chapter VIII: Regional Arrangements.....................305

5. Article 103: Non-Derogation.....................307

B.The A.U. Constitutive Act. ....................308

1. History of the A.U. ....................309

2. Article 4(h) Intervention. ....................309

a) A.U. Interpretations of Article 4(h). ....................310

b) The Operational System. ....................311

III. Past Interventions. ....................312

A. NATO. ....................313

B. ECOWAS. ....................313

C. African Union. ....................314

1. Burundi. ....................314

2. Darfur. ....................315

3. Somalia. ....................316

4. Comoros. ....................316

D. Looking Forward. ....................317

IV. Consent Fails as an Alternative to Article 53. ....................318

A. States Probably Can Contract Around Article 2(4). ....................319

1. Transfer of Sovereignty. ....................319

2. Responsibility to Protect (R2P). ....................321

B. States Cannot Contract Around Article 53. ....................322

V. A.U. Intervention as Collective Self-Defense. ....................323

A. The Context of the U.N. Charter System Supports a Broad Reading of Article 51. ....................323

B. Article 4(h) Interventions Can Be Classified as Collective Self-Defense . ....................325

1. Necessity. ....................326

2. Proportionality. ....................327

C. Practical Realities Coincide with Self-Defense Requirements. ....................328

1. Financial Constraints. ....................328

2. Lack of Will and National Interests. ....................329

3. Requirement of Broad Consensus.....................330

VI. Conclusion. ....................330

I. Introduction

The African Union (A.U.), in Article 4(h) of its Constitutive Act, purports to give itself a right of humanitarian intervention in its member states in certain grave circumstances, including the commission of various war crimes.1 This purported right stands in stark contrast with the collective security system established by the U.N. Charter, under which neither states nor regional organizations may use force in the territory of another country, subject to only a few exceptions.

The U.N. Charter contains a robust collective security framework. The bedrock principle of the framework, Article 2(4), bars states from using force against other states in almost all circumstances.2 Under the Charter system, the only acceptable deviations from this principle are uses of force in self-defense, or uses of force with either the consent of the target state or the authorization of the United Nations Security Council (UNSC) acting pursuant to its Chapter VII powers.3 The U.N. Charter system is further solidified by its constitutional character, as no derogation of Charter obligations is permitted by treaty or otherwise.4

The A.U., a regional organization comprised of all the African states, created a very different collective security framework when it claimed a right to forcible humanitarian intervention.5 Article 4(h) of the A.U. Constitutive Act, which has been ratified by all A.U. member states, clearly identifies such a right. However, the A.U. Constitutive Act ignores questions of UNSC authorization of such interventions. Indeed, as the history of the A.U. shows, African leaders drafted and approved this provision as a clear workaround to what they saw as a failed UNSC. …

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