INTERVENTION AND CONSENT – CONSENSUAL INTERVENTION .doc

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					           INTERVENTION IN CIVIL WARS: INTERVENTION
                                     1
                        AND CONSENT

                                               ELIAV LIEBLICH

                                   DETAILED TABLE OF CONTENTS

INTRODUCTION: CONSENSUAL INTERVENTION AS AN EXCEPTION TO THE PROHIBITION ON THE
USE OF FORCE


     PART 1: THE BUILDING BLOCKS OF CONSENSUAL INTERVENTION


CHAPTER 1: CONSENSUAL INTERVENTION: MODALITIES AND DYNAMICS
I. THE WIDE SPECTRUM OF CONSENSUAL INTERVENTION
      I.1 THE INSUFFICIENCY OF THE INTERVENTION UPON INVITATION PARADIGM
      I.2 CONSENSUAL INTERVENTION AND MULTIPLE JUSTIFICATIONS
II. CONSENT: THE DISTINCTION BETWEEN EXTERNAL VALIDITY AND INTERNAL CONSENT POWER
      II.1 VALID AND GENUINE CONSENT AS CONFERRING REVOCABLE AGENCY UPON THE EXTERNAL
      INTERVENER
      II.2 INTERNAL CONSENT POWER: BETWEEN EFFECTIVENESS AND LEGITIMISM
III. EXEMPLIFYING THE DYNAMICS OF INTERVENTION AND CONSENT: CONGO 1996-2010
      III.1 THE FIRST CONGOLESE CONFLICT, 1996 –1997: THE OUSTING OF MOBUTU
      III.2 THE SECOND CONGOLESE CONFLICT, 1998 –2003: WITHDRAWAL OF CONSENT AND
      INVITATION OF OTHER POWERS
      III.3 THE CONFLICT IN THE KIVUS, 2004–2010: PRO-GOVERNMENT INTERVENTION BY RWANDA
      AND FORCIBLE MONUC OPERATIONS
IV. CONSENT AND SECURITY COUNCIL AUTHORIZED INTERVENTIONS: A COMPLEX INTERACTION
      IV.1 CHAPTER VII RESOLUTIONS AND CONSENT
      IV.2 CHAPTER VII RESOLUTIONS AND WITHDRAWAL OF CONSENT

CHAPTER 2: UNDERSTANDING INTERNAL ARMED CONFLICTS
I. GENERAL
II. A WORKING DEFINITION: FROM “CIVIL WAR” TO INTERNAL ARMED CONFLICT
III. INTERNAL ARMED CONFLICTS: TYPOLOGY
       III.1 THE COMPLEX THEORY OF INTERNAL ARMED CONFLICTS
       III.2 STRUGGLE FOR CONTROL OVER STATE APPARATUS
       III.3 STRUGGLE FOR AUTONOMY

           1
               Forthcoming, Routledge, 2013.
    III.4 STRUGGLE FOR SECESSION
    III.5 STRUGGLE FOR (RE)UNIFICATION (IRREDENTISM)
    III.6 STRUGGLE FOR THE DISMANTLEMENT OF THE STATE AS PART OF A DECENTRALIZED TRANSNATIONAL
    MOVEMENT

CHAPTER 3: UNDERSTANDING INTERVENTION –KEY DISTINCTIONS AND THEORETICAL
ISSUES
I. INTERVENTION ACROSS DISCIPLINES – THEORETICAL FAULT-LINES AND CLARIFICATIONS
      I.1 THE MULTI-DISCIPLINARY DISCOURSE ON INTERVENTION
      I.2 A LEGAL APPROACH TO INTERVENTION OR SETTING ASIDE REALISM
      I.3 THE DISTINCTION BETWEEN CONSENSUAL INTERVENTION IN INTERNAL ARMED CONFLICTS AND
      INTERVENTION IN POLITICAL DISPUTES
II. INTERVENTION IN INTERNATIONAL LAW: KEY DISTINCTIONS
      II.1 PHYSICAL (DESCRIPTIVE) VERSUS NORMATIVE (PRESCRIPTIVE)
      II.2 INTERVENTION: NON-FORCIBLE VERSUS FORCIBLE; NEGATIVE VERSUS POSITIVE; AND
      UNILATERAL VERSUS MULTILATERAL
      II.3 THE “NORMATIVE DUALITY” OF FORCIBLE INTERVENTION
III. THE SHIFTING MEANING OF THE NORM OF NON-INTERVENTION

CHAPTER 4: DEFINING FORCIBLE INTERVENTION
I. GENERAL
II. DEFINITION OF UNILATERAL FORCIBLE INTERVENTION – SCOPE, MEANS AND STATE
ATTRIBUTION
      II.1 SCOPE, MEANS AND METHODS OF FORCIBLE INTERVENTION
      II.2 “GRAVE” AND “LESS-GRAVE” FORCIBLE INTERVENTIONS
      II.3 THE QUESTION OF STATE ATTRIBUTION: FORCIBLE INTERVENTION BY IRREGULAR FORCES
      AND NON-STATE ACTORS
III. MULTILATERAL FORCIBLE INTERVENTION BY U.N. FORCES
IV. “LESS-GRAVE” FORCIBLE INTERVENTION – THE QUESTION OF ARMS TRANSFER TO PARTIES IN
INTERNAL ARMED CONFLICTS
      III.1 ARMS TRANSFERS, NEUTRALITY AND JUS AD BELLUM
      III.2 ARMS TRANSFERS AND THE MOVEMENT TO SUBSTANTIVE ANALYSIS



     PART 2: INTERVENTION AS CHOICE: THE RIGHTS OF PARTIES TO

         INTERNAL ARMED CONFLICTS IN THE PRE-CHARTER ERA

I. GENERAL

CHAPTER 5 – INTERNAL ARMED CONFLICTS AND CONSENT IN THE ERA OF THE
PREROGATIVE OF WAR: A GENERAL VIEW
I. AN INITIAL OVERVIEW THE BELLIGERENCY DOCTRINE
      I.1 THE RATIONALE OF THE BELLIGERENCY STATUS
      I.2 THE CONDITIONS FOR RECOGNITION OF BELLIGERENCY AS WIDELY UNDERSTOOD
      I.3THE RESULTS OF RECOGNITION OF BELLIGERENCY IN TRADITIONAL INTERNATIONAL LAW
II. CLARIFYING MODERN COMMENTARIES ON THE RELATION BETWEEN RECOGNITION OF BELLIGERENCY
AND CONSENSUAL INTERVENTION
      II.1 UNDERSTANDING THE NORMATIVE FRAMEWORK: THE USE OF FORCE IN THE ERA OF THE WAR
      PREROGATIVE
      II.2 THE DISCONNECTION BETWEEN BELLIGERENCY, OBLIGATIONS OF NEUTRALITY AND CONSENSUAL
      INTERVENTION IN THE WAR-PREROGATIVE ERA
      II.3 CONSENSUAL INTERVENTION AS CHOICE
      II.4 THE MAIN CONSEQUENCE OF RECOGNITION OF BELLIGERENCY: EFFECTS ON NEUTRAL COMMERCE


CHAPTER 6 – TERRITORIAL EFFECTIVE CONTROL AS A SOURCE OF RIGHTS IN
INTERNAL ARMED CONFLICTS: THE BELLIGERENCY AND INSURGENCY DOCTRINES
I. THE BELLIGERENCY DOCTRINE: EARLY CASES
      I.1 THE AMERICAN REVOLUTION
      I.2 EARLY 19TH CENTURY CASES: THE SPANISH COLONIAL WARS
      I.3 MID 19TH CENTURY CASES: TEXAS, CANADA AND OTHERS
II. THE CONSOLIDATION OF THE BELLIGERENCY DOCTRINE: THE AMERICAN CIVIL WAR
      II.1 GENERAL
      II.2 INTERNAL APPROACHES
      II.3 EXTERNAL APPROACHES
      II.4 THE AMORAL APPLICATION OF THE BELLIGERENCY DOCTRINE
              II.4.1 The Slavery X-Factor
              II.4.2 John Stewart Mill and the Idea of Consensual Intervention in the Civil War
III. THE INSURGENCY DOCTRINE
      III.1 INSURGENCY: THE STATUS OF REBELS WITHOUT BELLIGERENCY RECOGNITION
      III.2 INSURGENCY AS LIABILITY: DOMESTIC NEUTRALITY ACTS
      III.3 INSURGENCY AS PRIVILEGE: CLOSURE OF PORTS, NON-PIRACY AND POTENTIAL RECOGNITION OF
      INSURGENTS AS DE FACTO GOVERNMENTS
      IV. INSURGENCY AS UNRECOGNIZED BELLIGERENCY? THE CASE OF THE ORIENTAL NAVIGATION
      COMPANY


     CHAPTER 7: INTERVENTION AND CONSENT IN THE INTER-WAR PERIOD

I. THE LEAGUE OF NATIONS SYSTEM AND THE USE OF FORCE – FROM THE BALANCE OF POWER TO
THE POWER OF PROCEDURE
      I.1 PACIFIC SETTLEMENT OF DISPUTES
      I.2 COLLECTIVE SECURITY
II. THE KELLOGG-BRIAND PACT: TOWARDS A UNIVERSAL PROHIBITION ON WAR
III. THE USE OF FORCE IN INTER-WAR PERIOD AND CONSENSUAL INTERVENTION: A DEPARTURE
FROM INTERVENTION AS CHOICE
IV. THE SPANISH CIVIL WAR AND THE CRISIS OF THE TRADITIONAL LAW OF INTERNAL ARMED
CONFLICT
    IV.1 CONSENSUAL INTERVENTION IN THE SPANISH CIVIL WAR
    IV.2 THE NON-INTERVENTION AGREEMENT: COLLECTIVE NON-INTERVENTION
    IV.3 U.S. NEUTRALITY: UNILATERAL NON-INTERVENTION
    IV.4 THE SPANISH CIVIL WAR: BELLIGERENCY, INSURGENCY AND GOVERNMENTAL RECOGNITION
    IV.5 CONSENSUAL INTERVENTION IN THE SPANISH CIVIL WAR AS AN ILLEGAL USE OF FORCE AND
    THE CALLS FOR SUBSTANTIVE ANALYSIS OF PARTIES




PART 3: INTERVENTION AND CONSENT IN THE ERA OF THE PROHIBITION

                               ON THE USE OF FORCE


CHAPTER 8: GOVERNMENTAL PREFERENCE: FROM DICHOTOMY TO REBUTTABLE
PRESUMPTION
I. ENTER THE UN CHARTER: STATE CONSENT AS AN EXCEPTION TO THE PROHIBITION ON THE USE
OF FORCE
II. CONTAINMENT, DÉTENTE, ROLL-BACK: COLD-WAR DOCTRINES OF INTERVENTION
III. THE STRICT ABSTENTIONIST APPROACH
      III.1 STRICT ABSTENTIONISM
      III.2 A CRITIQUE OF STRICT ABSTENTIONISM
IV. THE REBUTTABLE PRESUMPTION IN FAVOR OF GOVERNMENTS
      IV.1 THE GOVERNMENT AS REPRESENTATIVE OF THE STATE
      IV.2 THE PRESUMPTION IN FAVOR OF GOVERNMENTS IN PRACTICE
      IV.3 THE PRESUMPTION IN FAVOR OF GOVERNMENTS IN ICJ DECISIONS


CHAPTER 9: THE SCOPE OF GOVERNMENT CONSENT POWER: GENERAL THRESHOLDS AND
THE EFFECTIVE CONTROL TEST
I. TERRITORIAL EFFECTIVENESS IN LIGHT OF MASS ATROCITIES AND TRANSNATIONAL TERRORISM
II. THRESHOLD QUESTIONS
      II.1 REVERSING THE PARADIGM: THE EXISTENCE OF INTERNAL ARMED CONFLICT AS A GENERAL
      PRECONDITION FOR FORCIBLE INTERVENTION OR INTERNAL JUS AD BELLUM
      II.2 THE LEGAL IRRELEVANCE OF THE TERM “CIVIL WAR” AS NEGATING CONSENT POWER
      II.3 THE FAILED STATE THRESHOLD: NO GOVERNMENT – NO PREFERENCE
      II.4 BEYOND THE FAILED STATE THRESHOLD: RECOGNITION, INTERVENTION, AND THE ROLE OF THE
      SECURITY COUNCIL IN SOMALIA

III. COUNTER-INTERVENTION: A DEFENSE CLAIM       FOR   LOSS   OF   EFFECTIVE CONTROL   OVER
TERRITORY

CHAPTER 10: FROM EFFECTIVE CONTROL OVER TERRITORY TO EFFECTIVE PROTECTION
OF CIVILIANS
I. THE EMERGENCE OF PROTECTION OF CIVILIANS AS A FUNDAMENTAL PRINCIPLE OF INTERNATIONAL
LAW
II. FROM TERRITORIAL EFFECTIVENESS TO EFFECTIVE PROTECTION: PROTECTION AS A COMPONENT OF
SOVEREIGNTY
      II.1 THE EMERGENCE OF THE RESPONSIBILITY TO PROTECT
      II.2 THE NORMATIVE SIGNIFICANCE OF RTOP: AFFECTING EFFECTIVENESS
      II.3 EFFECTIVE PROTECTION AS NEGATING GOVERNMENTAL CONSENT
      II.4 THE PRINCIPLE OF PROTECTION AS AUGMENTING GOVERNMENTAL CONSENT
      II.5 EFFECTIVE PROTECTION, HUMAN RIGHTS AND DEMOCRACY
III. EFFECTIVE PROTECTION AND WITHDRAWAL OF CONSENT
      III.1 WITHDRAWAL OF CONSENT AS A NEAR-ABSOLUTE RIGHT
      III.2 CONSENT AND FORWARD-LOOKING INTERVENTION AGREEMENTS
      III.3 FORWARD-LOOKING INTERVENTION TREATIES IN AFRICA
      III.4 FORWARD-LOOKING INTERVENTION TREATIES AS ALTERNATIVES FOR SECURITY COUNCIL ACTION
      III.5 RTOP, EFFECTIVE PROTECTION AND WITHDRAWAL OF CONSENT
IV. FAILURE TO EXERCISE EFFECTIVE PROTECTION: THE THRESHOLD QUESTION
V. OTHER POSITIVE LEGAL MECHANISMS FOR THE NEGATION OF CONSENT IN CASES OF LACK OF
EFFECTIVE PROTECTION: JUS COGENS, IHL AND IHRL

CHAPTER 11: CONSENT POWER, DEMOCRACY, HUMAN RIGHTS AND SELF-DETERMINATION
I. CONSENT BY NON-DEMOCRATIC REGIMES: DEMOCRACY AS PROTECTION
      I.1 THE PRESUMPTION IN FAVOR OF GOVERNMENTS IN DEMOCRATIC AND NON-DEMOCRATIC REGIMES
      I.2 THE ELECTORAL ASPECT: THE DISTINCTION BETWEEN “ESTABLISHED” AND “REVOLUTIONARY”
      AUTOCRACIES
      I.3 CȎTE D’IVOIRE 2011 –COUPLING DEMOCRACY WITH CIVILIAN PROTECTION
      I.4 ESTABLISHED AUTOCRACIES FACING A GENUINE PRO-DEMOCRATIC INSURRECTION: DECONSTRUCTING
      THE “DEMOCRATIC ENTITLEMENT”
II. DEPRIVATION OF SELF-DETERMINATION AND CONSENT POWER
      II.1 SELF DETERMINATION IN THE COLONIAL CONTEXT AND BEYOND
      II.2 RELEVANCE IN THE DECOLONIZED WORLD: INTERNAL SELF-DETERMINATION, REMEDIAL SECESSION,
      CIVILIAN PROTECTION AND CONSENT POWER

CHAPTER 12: BETWEEN RECOGNITION AND HUMANITARIAN INTERVENTION: CONSENT OF
OPPOSITION GROUPS

				
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