I INTRODUCTION

The current debate over the legitimacy and legality of humanitarian intervention is bogged down in doctrinal trench warfare over the meaning of sovereignty. NATO's use of force against the Federal Republic of Yugoslavia (`FRY') in March 1999 was opposed by Russia, India and China on the grounds that NATO breached core United Nations Charter (`the Charter') principles of sovereignty, non-intervention and the non-use of force. (1) Although many members of the Non-Aligned Movement (2) were not prepared to condemn NATO's action because they grudgingly acknowledged that it was saving Kosovar Albanians in peril, this grouping was emphatic in its Declaration on the Millennium Summit in Cartegena that it did not accept the principle of unilateral humanitarian intervention. (3) The counter-claim made by UN Secretary-General Kofi Annan and Western states, especially the UK and Canada, is that sovereignty cannot be a licence for states to massacre their citizens with impunity. The future of the doctrine of humanitarian intervention at the UN is bound up with how this conflict of principles is resolved.

In a speech to the General Assembly (`GA') in September 1999, Annan threw down the gauntlet on the question of humanitarian intervention. Pointing explicitly to the case of Rwanda, he asked the GA whether in cases of genocide non-intervention was preferable to the use of force without Security Council (`SC') authority. (4) At the same time, Annan cautioned those who might wish to trumpet a right of humanitarian intervention after Kosovo to remember that unilateral intervention to defend human rights could set `dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents, and in what circumstances?' (5) Subsequent to the Secretary-General's speech, a number of governments from developed and developing states have called for a debate at the UN on the principles that should govern the use of force in defence of the humanitarian values enshrined in the Charter and customary international law.

This commentary examines the conceptual issues raised by the current debate and considers the prospects for arriving at a new consensus at the UN. Firstly, I will reflect on what the doctrine of humanitarian intervention means for the principle of non-intervention in international society. Having argued for a conception of `sovereignty as responsibility', Part III identifies six substantive principles that should be applied in any assessment of the legitimacy of using force to promote humanitarian ends.

Reaching agreement on the appropriate substantive principles is only half the battle, since there remains the procedural question of how to resolve disagreement when the application of agreed principles is contested. This problem is resolved through the judicial system in domestic law, but how is it to be resolved internationally? This issue is fundamental to the question of arriving at a new consensus on humanitarian intervention, but is often neglected in discussions of this sort. Part IV queries the extent of any progress made towards reaching a consensus on criteria of legitimate humanitarian intervention at the UN. The commentary concludes with some...