인도적 간섭의 적법성과 정당성

Under the current regime of international law, a most controversial issue of international law today is that if and when without UN Security Council authorization or General Assembly action, any use of armed force for humanitarian intervention would be regarded as lawful or not. Because of inaction from Security Council owing to veto power wielded by Permanent Member states or no endorsement from General Assembly due to lack of consensus among member states, there arises a legal impasse of being no action for supporting a proposed case of humanitarian intervention, overlooking the human rights catastrophe. With these cases the overwhelming majority of contemporary legal opinion has been addressed against the existence of a right of humanitarian intervention. The rationale to defend conservatively the current collective security framework of the UN Charter is that it seems ultimately more likely to preserve a thin rule of law in international affairs than any 'right' of unilateral intervention wielded selectively by powerful states. They envisage from a cautious analysis of the state practice and opinio juris that unilateral humanitarian intervention remains an inchoate principle, occasionally tolerated by states without being endorsed. Their conclusion is that at most the doctrine of humanitarian intervention has a tenuous basis, not yet crystallized, in current international customary law. On the other hand, still a substantial body of opinion and of practice has supported the view that when a state commits cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible. This position, however, treats the right of humanitarian intervention as a matter of last resort and confines it to extreme cases. My position in this paper is to take an affirmative approach to the issue based on customary rule of international law. Although careful analysis is needed for armed intervention to pass the current criteria of legality under international law system, a genuine case of humanitarian intervention should not be frustrated which might be caused by malfunctioning of UN driven not by interest of peoples but by interest of super power countries. Conditions to pass for humanitarian intervention by intervening states would be as follows: first, when faced with an overwhelming humanitarian catastrophe, which a government has shown it is unwilling or unable to prevent or is actively promoting, the international community should intervene. Because Intervention in internal affairs of other country is a sensitive issue, so there must be convincing evidence of extreme humanitarian distress on a large scale, requiring urgent relief. it must be objectively clear that there is no practical alternative to the use of force to save lives. But we should act on the principle that a UN member state should not be able to plead its sovereign rights to shield conduct which is inconsistent with its obligations as a member of the UN. We need to strike the correct balance between the sovereign rights of states and the humanitarian right of the international community to intervene where necessary; secondly, any use of force should be proportionate to achieving the humanitarian purpose and carried out in accordance with international law; thirdly, any use of force should be collective. No individual state can reserve to itself the right to act on behalf of the international community. Furthermore in some extreme cases such as genocide or crime against humanity, a right of humanitarian intervention may be turn into a duty to intervene where the doctrine of responsibility to protect would be employed. At present this doctrine of responsibility to protect may be better justified in terms of enhancing the legitimacy of international law system rather than by merely satisfying the legality of its action under current system of international law. Although recently some theorists has claimed that intervention for the cause of promoting democracy and regime change can be justified because this practice would help the suffering people become liberated from the yoke of tyrannical regime, this expansion under the doctrine of humanitarian intervention beyond core cause of humanitarian relief may be more troublesome because of its inherent risk of being abused by super power states toward weaker ones.