JPIL Vol 2 Issue 1 2007 - A4


Paulo de Brito ·


  1. The problem


The problem this essay seeks to address concerns the international legality of military interventions outside national borders or even outside the framework of the United Nations. Should such interventions always be regarded as illegal, representing a violation of international law? The answer partly depends upon a definition of international law. The term maybe treated as merely co-extensive with positive international law, i.e. that which is inscribed in written texts, or which underwrites the formal mechanisms prescribed in the UN Charter. Should this use of the term appear over-reductive, it behoves us to hypothesise other sources of international law. Are there some core principles, which represent a reference for the whole international community, whose transgression could justify the use of force? If international legality is not reducible to mere positivity, this makes room to consider a possible role for natural law. Can humanitarian interventions be regarded as legal if their purpose is to promote justice for people outside of national boundaries? At a time when the legality of interventions in Nicaragura, Kosovo, and Iraq has often been questioned, it seems important to lay down the theoretical foundations of such debate. This essay intends to contribute to an enlarged reflection on these issues.

· Judge Coordinator of Julgado de Paz do Porto (Small Claims Court of Porto - Portugal). J.D., Universidade Cat³lica Portuguesa; B.B.A., Helsinki School of Economics; M.A. in International Relations, Universidade Portucalense; Ph.D. (Law), University of Bristol (UK). This essay was completed and graded with distinction during the Eighteenth Helsinki Summer Seminar on International Law (2005) from The Erik Castrn Institute of International Law and Human Rights (University of Helsinki) and builds on the argument developed in my Ph.D. thesis A Theory of International Law in the face of Nationalism. I would like to thank Patrick Capps and Julian Rivers for discussing earlier drafts of this article with me, and some of the issues I deal with. My special thanks to Anthony Carty from the Journal of the Philosophy of International Law for his excellent remarks and encouragement.

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