Rebuttable Presumption Against Consensual Nondemocratic Intervention

By:

Since the adoption of the U.N. Charter, the international community has worked tirelessly to prevent conflict through the prohibition on the use of force and the principle of nonintervention. However, the doctrine of intervention by invitation stands in stark contrast to this goal, especially its most recent iteration in Syria. The doctrine relies on the consent of states to determine the lawfulness of intervention. But consent is simply not sufficient to guarantee that the use of force does not transgress self-determination, popular government, human rights, and other international legal values. This Note proposes that a rebuttable presumption against intervention should be imposed against nondemocratic States. Unless a nondemocratic State can affirmatively demonstrate the intervention’s compliance with a State’s other international legal commitments, the intervention should be presumed unlawful. The rebuttable presumption would serve to discourage use of force, but respect a people’s nondemocratic expression of sovereign government. In light of all the alternatives, no rule offers the same inclusivity and flexibility required for action on the international plane. This is demonstrated most clearly by Russia’s intervention in Syria, whereby a rebuttable presumption could have prevented this additional military force or induced Syria to better comply with its international responsibilities.

55 Colum. J. Transnat'l L. 138.