Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested

Abstract

Pre-Charter international law looked to the degree of control by a non-state party to an internal conflict to determine the legality of external assistance to either side to that conflict. This determination was made according to the standards of belligerency and was essentially a corollary to the effective control test for governmental recognition.

After evaluating post-Charter state practice, this paper concludes that the standards of belligerency have been abandoned by states, in favor of a determination of legitimacy by the Security Council. There is accordingly a discord in the law, between the continued application of the effective control test (which most commentators accept as a given) and the abandonment of the standards of belligerency.

Keywords: Civil wars, intervention, invitation, consent, use of force, effective control test, standards of belligerency

JEL Classification: K33, N40, N45, N46, N47