Norm urges that there is a moral right and that if there is no legal right, then the legal system in question is an ass (my paraphrase). Conor argues that there is no legal right, and that if states go around disregarding international law as they please then we’ll have chaos. Norm suggests in turn that there’s a world of difference between breaking a bad law in order to save lives and breaking other, better laws for more selfish reasons.
On the tension between what he sees as a clear moral right and the possible lack of a legal right, Norm says:
if humanitarian intervention by a state or group of states without Security Council authorization is in all circumstances illegal, then this means that international law presently accommodates what is, by its own norms, massive state criminality. The law being upheld by (some) legal scholars, in other words, has a glaring logical contradiction at its heart.
This contradiction, I suggest, is the result of a deeper structural contradiction in international law. This may not be grasped if we try to understand it on the same model as national law.
Domestically, law is defined and imposed upon individuals by the government, with institutions that enforce laws and administer punishments. But what we call ‘international law’ is a set of agreements made between governments, covering their own behaviour. Enforcement of international law is voluntary and thus selective, as there is no global body with the political independence and resources necessary to act effectively. It’s enforced only when a sufficiently powerful group of governments decide that they wish to do so.
So a body of documents may call itself ‘international law’ but without reliable, independent application and enforcement there is no real rule of law in the international sphere. The ends are willed far more often than the means. Sometimes the means are even put completely out of reach.
This underpins the debate about the right of humanitarian intervention in the face of genocide.
The ‘responsibility to protect’ doctrine (R2P), accepted by the General Assembly in 2005, acknowledges that it’s always best for national authorities to safeguard the wellbeing of their own citizens. However, if they are unwilling or unable to do so and allow terrible humanitarian suffering to be inflicted on their people, then an external force with Security Council authorisation may intervene militarily. This is very much a regrettable fall-back option.
This logic, though, goes a step farther than the UN can take it. What happens when international authorities are failing to protect these civilians under threat?
We know that the UN will often, for political reasons, fail to act. The principle by which R2P allows responsibility to be transferred, in certain dire cases, beyond the initially proper national authority to the UN, still applies in those even direr cases when the international safety net fails. Clearly, the UN itself can’t have any provisions governing what to do when its processes are inadequate for upholding its own principles. ‘International law’ doesn’t, and can’t, answer this essentially political question.
The UN’s subordination to its members means that it’s not the ultimate authority. The absence of a single world state, though, means that there is no such authority anywhere. This hole in the system is what underlies the contradiction Norm identifies, of the procedures for law enforcement tolerating (and even blocking the prevention of) massive state criminality.
This hole is also what gives rise to the problem of how to uphold the principle of R2P when the UN fails, and it’s what makes a ‘legal’ solution to that problem impossible.
Sending in the blue berets to stop state-backed massacres is inherently a more destabilising option than persuading the state government in question to put its house in order. But sometimes the ‘stability’ option won’t work. Likewise, mounting a non-UN-sanctioned intervention is inherently a more destabilising option than persuading the Security Council to authorise an effective mission (this is Conor’s point, and he’s right). But sometimes the fall-back ‘stability’ option won’t work either, and so two tiers of proper authority fail. Then what?
It’s widely understood that the passing of UN resolutions is arbitrary and selective, and that the supply of money and troops for their enforcement is also arbitrary and selective. It’s not such a huge leap to suggest that when such a system, which paints power politics as principled law, freezes up, there is a morally legitimate opening for others to stand up for those principles on their own.
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