Nikolaos K. Tsagourias
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Positivism and humanitarian intervention
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The UN Charter contains an approximation of the natural law-like principles concerning humanity but also vigorously restates étatisme by protecting state sovereignty. Critics of humanitarian intervention rely on the principle of sovereignty and independence to uphold non-interference whereas others find humanitarian actions morally, if not legally, compelling. The mystification of legal discourse emanating from the interface of substructure and superstructure has been contested within the positivist tradition which arrives at different conclusions. For Austin, the legal character of a rule is affirmed irrespective of its contravening ethical imperatives whereas in Kelsen's theory, law becomes normative and de-psychologised. Kelsen, conscious of the identified dilemmas, wants to purify law from psychological, ethical, moral, sociological or political elements. Interestingly, Kelsen observes that an international organisation which establishes a system of international security can request a state to sacrifice the lives of its subjects in order to guarantee international security.

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Jurisprudence of international law

The humanitarian dimension


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