Supplementary memorandum submitted by
Professor Vaughan Lowe
The four papers (Brownlie, Chinkin, Greenwood
and Lowe) take slightly different perspectives. Professor Brownlie
concentrates on the facts of the Kosovo intervention and argues
that the manner in which NATO proceeded from the threat to the
use of force, and the manner in which that force was used, put
the NATO action outside any possible legal justification. Professors
Chinkin and Greenwood and I focus more on the question of the
putative right of humanitarian intervention asserted by NATO in
relation to the Kosovo action, and consider whether it is, or
should be, a right recognised by international law.
As far as the appraisal of the relevant principles
of international law is concerned, there is a good deal of common
ground among the four papers. All take the view that the NATO
action was not compatible with the express terms of the UN Charter.
Three of the papers (Brownlie, Chinkin, Lowe) take the view that
there is no established right of humanitarian intervention in
customary international law. Professor Greenwood considers that
a right of intervention does exist, as a customary law development
of the rules set out in the UN Charter.
I have given careful consideration to Professor
Greenwood's view that there is such a right in customary international
law; but I remain of the opinion that, while it is desirable that
there should be such a right, none is yet established.
My reason for holding to this opinion is the reason forcefully
presented by Professor Brownlie: there is insufficient evidence
of State practice supporting claims to a right of humanitarian
intervention for the principle to have become established as a
rule of law.
There are only slight differences between the
Chinkin, Greenwood and Lowe papers concerning the limitations
that should, as a matter of policy, be imposed upon any right
of intervention that is or might come to be established in international
law. (Controlling the scope of the NATO action as a precedent
for future interventions is, in my view, one of the crucial tasks
at this stage, much more important than the making of a retrospective
determination of the legality of the NATO action). The differences
between the papers, with Professors Chinkin and Greenwood suggesting
a slightly wider right than I do, are probably more stylistic
than real.
In contrast to the considerable agreement concerning
the existence of a right of humanitarian intervention in customary
international law, there is much disagreement over the question
whether the manner in which NATO did intervene in the Kosovo crisis
was consistent with international law. Professor Greenwood considers
that NATO appeared to have acted broadly in accordance with international
law. Professors Chinkin, Brownlie and I consider that NATO acted,
or may have acted, in breach of international law in relation
to its targeting policies. Most of the differences seem to me
to derive from different views of the facts (such as they are
known to us), rather than from disagreements over the law. Indeed,
there were no substantial differences between the papers in relation
to the legal criteria applicable to the question of targeting.
The Committee will doubtless pursue the factual questions with
those best placed to answer them.
Professor Brownlie's view that the entire NATO
engagement in relation to Kosovo was tainted by an unlawful threat
of force against the FR Yugoslavia, evident by October 1998, could
also be explained as a difference over the appraisal of the facts,
albeit a fundamental and crucial difference. Here I can say only
that the repeated and consistent reports of atrocities in Kosovo
that were made in the media at the time of the NATO intervention
in my view described a situation that constituted a sufficient
basis for a bona fide claim by NATO to be acting for humanitarian
reasons, even if not to be acting solely for humanitarian
reasons.[18]
If the reports of atrocities in Kosovo were false, exaggerated
or misleading, that would materially affect the position. I lack
the detailed first-hand knowledge to take a position on these
and other factual questions.
My comments have focused on the right to use
force. While I believe that it is desirable that a right of humanitarian
intervention, subject to strict conditions and limitations, should
become established in international law, that alone is not an
adequate response to situations such as that in the FR Yugoslavia.
There is a pressing need to develop, and to use, mechanisms for
the management of international crises so as to avoid the waste
of life, property and money in military actions. One of the major
lessons of the Balkan crisis of the past decade is that the mechanisms
for the peaceful handling of international crises are either inadequate
or are used ineffectively.
Vaughan Lowe
All Souls College, Oxford.
21 January 2000
18 Professor Brownlie draws attention to the link
between the threat and use of force and the pressure on the FR
Yugoslavia to accept the Rambouillet proposals. The implication
of his argument, if I read him correctly, is that NATO had in
effect painted itself into a corner, being unable to draw back
from the threatened use of force without losing its credibility
and having no alternative strategy to put in place of that threat.
Nonetheless, the fact that NATO's motive might have been
in part the maintenance of its credibility would not undermine
the argument that the humanitarian crisis provided a sufficient
justification for the action. Back
|
