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Published online by Cambridge University Press: 25 March 2011
Legal debates about humanitarian intervention—military intervention by one or more states to curb gross human rights violations occurring in another state—tend to assume that its legitimacy is irrelevant to its legality. Debates among philosophers and political theorists often assume the inverse, that the legality of humanitarian intervention is irrelevant to its legitimacy. This paper defends an alternative account, one that sees the legality and legitimacy of humanitarian intervention as intertwined. This account emerges from a conception of international law as a legal domain that structures global politics by treating sovereignty as a legal entitlement that it distributes among the multitude of legal actors that it recognizes as states. Drawing on a long standing debate among domestic legal theorists about the rule of law, it first identifies formal constraints on the UN Security Council‘s discretion to authorize the use of force to end human rights violations. Developing a distributive conception of international human rights, it then identifies substantive considerations that shed further light on the legality of intervention. It suggests that members of the Security Council must give reasons when exercising their discretion to authorize the use of force and that some reasons might divest a member's vote of legal validity.
1 J. L. Holzgrefe, “The Humanitarian Intervention Debate,” in J. L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas(Cambridge: Cambridge University Press, 2003), p. 18. See also Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order(Philadelphia: University of Pennsylvania Press, 1996), pp. 11–12 (humanitarian intervention as “the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights”).
2 UN Charter, Article 2(4).
3 Ibid., Article 2(7).
4 Ibid., Article 24.
5 Ibid., Article 39.
6 Ibid., Article 41.
7 Ibid., Article 42.
8 Ibid., Article 27(3). The permanent members of the Security Council are China, France, Russia, the United Kingdom, and the United States.
9 The precise language in Article 39 on this point is a “threat to the peace” or “breach of the peace.”
10 UN Charter, Article 2(7).
11 See Oscar Schachter, “The Right of States to Use Force,” Michigan Law Review 82 (1984), p. 1625 (the Charter does not prohibit the use of force if it does not threaten the “territorial integrity or political independence of a state”). But see Michael J. Levitin, “The Law of Force and the Force of Law: Grenada, the Falklands and Humanitarian Intervention,” Harvard International Law Journal 27 (1986), p. 612 (“a state's political independence is compromised whenever another state attempts through armed force to coerce it, to limit its choices on the international plane, or to interfere with its domestic political regime”).
12 UN Charter, Article 42.
13 In the 2005 World Summit Outcome, the UN General Assembly stated that “we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” UN A/Res/60/1, at para. 139.
14 UN Doc. S/RES/794 (1992).
15 This formulation leaves open the question of what consequences count as constituting a threat to the peace. Compare Matthias Herdegen, Die Befugnisse des UN-Sicherheitsrates: Aufgeklärter Absolutismus im Völkerrecht? (Heidelberg: Müller, 1998), p. 15 (the Security Council can recognize a threat to the peace beyond the transborder context if there is a “physical threat to internationally protected values and rights of high standing”), quoted in Bardo Fassbender, “Review Essay: Qui judicabit? The Security Council, Its Powers and Its Legal Control,” European Journal of International Law 11, no. 1 (2000), pp. 219–32.
16 UN Doc. S/RES/688 (1991). Resolution 688, however, did not authorize military force under Chapter VII.
17 See Ian Brownlie, International Law and the Use of Force by States(Oxford: Clarendon Press, 1963), pp. 265–70; see also Ryan Goodman, “Humanitarian Intervention and Pretexts for War,” American Journal of International Law 100 (2006), p. 107, citing extensive scholarship supporting this conclusion.
18 See Jean-Pierre Fonteyne, “Forcible Self-Help to Protect Human Rights: Recent Views from the UN,” in Richard B. Lillich, ed., Humanitarian Intervention and the United Nations(Charlottesville: University of Virginia Press, 1973), pp. 209–11.
19 See UN Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, G.A. Res. 2131 (XX) 20 UN GAOR, Supp. (No. 14), UN Doc. A/6014 (1965); and UN Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States, G.A. Res. 2625, 25 UN GAOR, Supp. (No. 28) at 121, UN Doc. A/8028 (1970). Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention(Boston: Kluwer, 1999), p. 70, notes that “similar proscriptions of intervention” can be found in the Charter of the Organization of African Unity, the Charter of the Organization of American States, and in the Principles of the Final Act of the Helsinki Conference in 1975.
20 The primary concern with a humanitarian exception to the absolute ban is that states would rely on it for ulterior motives. See, e.g., W. Michael Reisman, “Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention,” European Journal of International Law 11 (2000), p. 16 (describing this concern as “the primary juridical objection to a humanitarian exception”). For the view that the opposite concern is equally or more likely true, see Goodman, “Humanitarian Intervention and Pretexts for War.”
21 See Myres S. McDougall and W. Michael Reisman, “Response by Professors McDougall and Reisman,” International Lawyer 3 (1969), p. 444. For a critique of the view that customary international law authorizes humanitarian intervention without Security Council approval, see Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law(New York: Oxford University Press, 2001).
22 Buchanan also proposes treaty arrangements authorizing humanitarian intervention, which would, on the one hand, violate the UN Charter by authorizing what the Charter prohibits, but, on the other hand, displace the Charter's current role as the preeminent international legal instrument in international law. See Allen Buchanan, “Reforming the Law of Humanitarian Intervention,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, pp. 138–41.
23 Michael Byers and Simon Chesterman, “Changing the Rules About Rules,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, p. 177.
24 Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks(Cambridge: Cambridge University Press, 2002), p. 186. Franck likens the role of the Security Council (and the General Assembly) in this ex post context to that of a jury, whose members “are not without feelings and biases, but whose first concern is to do the right thing by the norms under which we all live” (p. 187). For a critique, see Thomas Pogge, “Moralizing Humanitarian Intervention,” in Terry Nardin and Melissa Williams, eds., Humanitarian Intervention(New York: New York University Press, 2006).
25 See Allen Buchanan and Robert O. Keohane, “The Preventive Use of Force: A Cosmopolitan Institutional Proposal,” Ethics & International Affairs 18, no. 1 (2004) (arguing for ex ante and ex post contractual arrangements requiring an “evidence-based case” for intervention to be put to the Security Council, authorization by a coalition of democratic states if the Security Council does not approve of the intervention, and evaluation by an impartial body after the fact).
26 Franck, Recourse to Force, p. 35. Franck details the history of Article 11(2) and its use in this respect. The International Court of Justice has interpreted Article 11(2) in the event of a veto by a Security Council permanent member as authorizing a “secondary” role for the General Assembly “to organize peace-keeping operations … by means of recommendation” and only “at the request, or with the consent, of the States concerned.” Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ (1962), p. 164. It should be noted that Article 11(2) does not stipulate state request or consent as a precondition of the exercise of General Assembly authority.
27 To be sure, Security Council authorization provides political legitimacy to the use of force to the extent that it provides some “political reassurance about the consequences of proposed military adventures.” Erik Voeten, “The Political Origins of the UN Security Council's Ability to Legitimize the Use of Force,” International Organization 59, no. 3 (2005), p. 528. The distinction, to be clear, is one between legal validity and political morality or justice.
28 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th ed. (New York: Basic Books, 2006), pp. 106–07.
29 Jeff McMahan, “The Morality of War and the Law of War,” in David Rodin and Henry Shue, eds., Just and Unjust Warriors: The Legal and Moral Status of Soldiers(New York: Oxford University Press, 2008).
30 Walzer's work is the contemporary classic in the field. Other significant contemporary works include Jean Bethke Elshtain, Just War Theory(New York: New York University Press, 1991); and Brian Orend, The Morality of War(Peterborough, Ont.: Broadview Press, 2006).
31 See generally, J. Austin, The Province of Jurisprudence Determined, W. E. Rumble, ed. (Cambridge: Cambridge University Press, 1995); and H. L. A. Hart, The Concept of Law(Oxford: Clarendon Press, 1961).
32 Austin, The Province of Jurisprudence Determined, p. 157.
33 See, e.g., Austin, The Province of Jurisprudence Determined(a law is valid because it is the command of a sovereign); Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (Clark, N.J.: Lawbook Exchange, 1999) (a legal norm is valid if authorized by another legal norm of a higher rank); and Hart, The Concept of Law(a law is valid if it conforms with “secondary rules” or laws that authorize the enactment of law). Some have drawn a distinction between political and analytic positivism, with the former as an interpretive strategy and the latter as objective description. See Ronald Dworkin, Justice in Robes(Cambridge, Mass.: Harvard University Press, 2006), pp. 26–33. For a defense of political positivism in international law, see Benedict Kingsbury, “Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law,” European Journal of International Law 13 (2002), p. 401.
34 Lon L. Fuller, The Morality of Law, rev. ed. (New Haven, Conn.: Yale University Press, 1969). What the concept of the rule of law requires, of course, is hotly contested, and legal theorists have arrayed themselves on a spectrum ranging from thin, formal conceptions of what is necessary for law to generate obedience, to thicker conceptions of justice that posit substantive normative preconditions of specific laws and, more generally, of legal orders. For a conception considerably thicker than Fuller's, see T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law(New York: Oxford University Press, 2001), p. 76 (“the principles of equality and due process, and associated freedoms of expression, association and conscience, must be regarded as integral features of law which limit the kinds of state action that can qualify as legitimate sources of legal obligation”). For an illuminating account that comprehends formal equality as an essential feature of law, see David Dyzenhaus, “The Dilemma of Legality and the Moral Limits of Law,” in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, eds., The Limits of Law(Palo Alto, Calif.: Stanford University Press, 2005). For a history and typology of scholarship on the rule of law, see Brian Tamanaha, On the Rule of Law: History, Politics, Theory(Cambridge: Cambridge University Press, 2004).
35 On both points, see Joseph Raz, “The Rule of Law and Its Virtue,” in Joseph Raz, The Authority of Law: Essays on Law and Morality(Oxford: Clarendon Press, 1979).
36 Another way of making the positivist point here is to say that whether society should be governed by the rule of law is not something the rule of law answers.
37 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960(Cambridge: Cambridge University Press, 2001).
38 Hans Kelsen, Pure Theory of Law, 2d ed., trans. Max Knight (Clark, N.J.: Lawbook Exchange, 2005).
39 H. L. A. Hart, “Positivism and the Separation of Law and Morals,” in H. L. A. Hart, Essays in Jurisprudence and Philosophy(New York: Oxford University Press, 1983), pp. 49–87.
40 The closest one can come to treating the Security Council as exercising judicial authority, I think, is Tom Franck's characterization of the Security Council operating like a jury in the context of humanitarian intervention. See Franck, Recourse to Force.
41 For a discussion of the domestic analogy, see Laurence R. Helfer, “Constitutional Analogies in the International Legal System,” Loyola of Los Angeles Law Review 37 (2004), p. 193. For a skeptical view, see David Schweigman, The Authority of the Security Council Under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice(Leiden: Martinus Nijhoff, 2001).
42 Andreas Stein, Der Sicherheitsrat der Vereinten Nationen und die Rule of Law(Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 393, quoted in Fassbender, “Review Essay: Qui judicabit?”
43 See Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations(Leiden: Martinus Nijhoff, 1998). Brownlie outlines several criteria to assess the legality of Security Council decision-making, including the exercise of its Chapter VII powers.
44 Security Council Resolution 1373, UN SCOR, 56th Sess., 4385th mtg., at 2, UN Doc. S/RES/1373 (2001), which requires all states to take certain measures to combat terrorism in the wake of September 11, 2001, veers even closer to international legislation by its general and nontemporary nature. See Paul C. Szasz, “The Security Council Starts Legislating,” American Journal of International Law 96 (2002), p. 901. Resolution 1373 also delegates the task of monitoring implementation of its terms to a plenary committee of the Security Council. For the view that such delegation lacks legal authority because it offends the rule of law, see David Dyzenhaus, “The Rule of (Administrative) Law in International Law,” Law and Contemporary Problems 68 (2005), p. 127. On delegation and the Security Council more generally, see Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers(New York: Oxford University Press, 1999). On the Security Council as a “global parliament,” see Tom Farer, “Humanitarian Intervention Before and After 9/11: Legality and Legitimacy,” in Holzgrefe and Keohane, eds., Humanitarian Intervention.
45 In the words of Gustav Radbruch, “positive law, established by enactment and by power, has primacy even when its content is unjust and improper. It is only when the contradiction between positive law and justice reaches an intolerable level that the law is supposed to give way as a ‘false law’ to justice.” This formulation has become known as the “Radbruch formula.” Radbruch continues as follows: “when justice is not even aimed at, where equality—the core of justice—is deliberately disavowed in the enactment of a positive law, then the law is not simply ‘false law, ’ it has no claim at all to legal status.” For analysis, see Robert Alexy, “A Defence of Radbruch's Formula,” in David Dyzenhaus, ed., Recrafting the Rule of Law(Oxford: Hart, 1999), pp. 15–39.
46 See Mattias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” European Journal of International Law 15 (2004), p. 918 (“the principle of international legality generally requires that addressees of international law should obey it”).
47 Compare Jeremy Waldron, “The Concept and the Rule of Law” (unpublished paper, September 14, 2006, draft), p. 25 (“to guide action is to indicate and highlight reasons for action which those being guided are to apply to their own behavior”).
48 Inis Claude, Jr., Power and International Relations(New York: Random House, 1962), pp. 158–62.
49 See John Ferejohn and Pasquale Pasquino, “Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice,” in Wojciech Sadurski, ed., Constitutional Justice, East and West(Boston: Kluwer, 2002) (the duty to give reasons intensifies as democratic accountability diminishes).
50 For the view that legal consistency has not been the Security Council's strong suit in relation to the legality of the use of force, see Voeten, “The Political Origins of the UN Security Council's Ability to Legitimize the Use of Force,” pp. 535–36.
51 See Goodman, “Humanitarian Intervention and Pretexts for War.”
52 These provisions reveal the explanatory power of what is known as inclusive legal positivism—a positivist account of law that notes the possibility that positive law can impose moral constraints on the exercise of discretion. See Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory(New York: Oxford University Press, 2001). For a critique, see Dworkin, Justice in Robes, pp. 187–98.
53 Jochen Herbst, Rechtskontrolle des UN-Sicherheitsrates(Frankfurt am Main: Peter Lang, 1999), p. 416 and following, quoted in Fassbender, “Review Essay: Qui judicabit?”
54 For a classic articulation of this conception of the field, see Jack Donnelly, Universal Human Rights in Theory and Practice(Ithaca, N.Y.: Cornell University Press, 1989).
55 Pogge refers to these conceptions as “interactional” and “institutional.” Thomas Pogge, World Poverty and Human Rights, 2d ed. (Cambridge: Polity, 2008).
56 This enables Pogge to claim that the obligation to reduce world poverty constitutes a negative duty to not act in ways that exacerbate economic inequality, as opposed to a positive obligation to share one's wealth or resources with strangers in need. The better view, I believe, is that the distinction between negative and positive obligations possesses little currency in an institutional conception of justice, as the normative question in such a conception is not whether to redistribute or not; instead, it assumes that distribution is inevitable in the establishment and operation of an international order and asks which order, and which modes of operation, best meet the demands of distributive justice.
57 Carla Bagnoli, “Humanitarian Intervention as a Perfect Duty,” in Nardin and Williams, eds., Humanitarian Intervention, p. 133.
58 Ibid., p. 134.
59 Compare Kelsen, Pure Theory of Law, p. 338 (“The national state, then, in its legal existence, appears determined in all directions by international law, that is, as a legal order delegated by international law in its validity and sphere of validity”).
60 J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 4th ed. (Oxford: Clarendon Press, 1949), pp. 48–49.
61 Article 1 of the Montevideo Convention on Rights and Duties of States (1933), e.g., lists the following criteria of statehood: a permanent population, a defined territory, a system of government, and the capacity to enter into relations with other states. Although recognition by other states is not a legal precondition of acquiring statehood, it does affect the capacity of the collectivity to possess the attributes of statehood required by international law.
62 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law(Cambridge: Cambridge University Press, 2003).
63 Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship(Chicago: University of Chicago Press, 1999), pp. 55–56.
64 Compare Hans Kelsen, The Law of the United Nations: A Critical Examination of its Fundamental Problems(London: London Institute of World Affairs, 1951), p. 280 (“As an organ of the United Nations the Security Council acts on behalf of the United Nations, not on behalf of its Members… . Acts of the Council … are … to be imputed to the Organisation, not to its Members. To disregard this imputation is the tendency of the sovereignty-dogma which is incompatible with the idea of a legal order binding upon the states… . It is not the Members, it is the Charter which confers responsibilities on the Security Council”).
65 Francis Deng, Sovereignty as Responsibility: Conflict Management in Africa(Washington, D.C.: Brookings, 1996).
66 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001); available at http:\\www.iciss.gc.ca.
67 According to the ICISS, military intervention is justified to halt or avert: (a) “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation”; or (b) “large scale ‘ethnic cleansing, ’ actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.” Ibid., p. 32.
68 The ICISS states that the relevant principles to assess the necessity of force are: right authority, just cause, right intention, last resort, proportional means, and reasonable prospects. Ibid., p. 32. For the view that the concept of humanitarian intervention should be reframed in terms of the responsibility to protect, see Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect,” Foreign Affairs 81, no. 6 (2002); for an analysis of the responsibility to protect in the context of UN peacekeeping, see Susan Breau, “The Impact of the Responsibility to Protect on Peacekeeping,” Journal of Conflict and Security Law 11, no. 3 (2006), pp. 429–64.
69 John Rawls, The Law of Peoples(Cambridge, Mass.: Harvard University Press, 1999), p. 80.
70 Rawls sees the role of international human rights as restricting “the justifying reasons for war and its conduct” and specifying “limits of a regime's internal autonomy.” Rawls, The Law of Peoples, p. 79. For an illuminating analysis of his account, see Charles R. Beitz, “Human Rights and the Law of Peoples,” in Deen K. Chatterjee, ed., The Ethics of Assistance: Morality and the Distant Needy(Cambridge: Cambridge University Press, 2004), pp. 193–214.
