Normativity in international law: the case of unilateral humanitarian intervention.

• Author: Richemond, Daphne

This Article argues that the ambiguous normative regime currently governing unilateral humanitarian intervention provides an adequate legal framework for such intervention. The Article reviews the arguments typically made in support of a codified, strict normative regime, finding that strict normativity is unlikely to deter human rights violators more effectively than the current framework. In addition, the Article points out that any effort to codify a norm of unilateral humanitarian intervention faces formidable obstacles. Such an effort must overcome the conflict between the traditional doctrine of state sovereignty and emerging principles of human rights, as well as practical difficulties in reaching international consensus on the content of a codified norm. A permissive legal regime, while imperfect, provides adequate safeguards against abuse, acknowledges the exceptional nature of unilateral intervention, benefits both intervening and target states, and protects human rights. Although the Article argues that normative ambiguity is the only viable legal regime at this time, it recognizes strict normativity as an ideal towards which the international community should strive.

1. INTRODUCTION

   The lawfulness of unilateral humanitarian intervention has long been a subject of academic discussion, fueling a debate over whether or not a new norm of customary international law has emerged. A critical observation dominates this debate: Unilateral humanitarian intervention is frequently considered unpredictable, its legal regime ambiguous, and its recourse too selective. Many scholars have expressed the view that these problems could be solved if there were more normativity in this area of international law. Yet, all too often, the proponents of codification have neglected to consider the negative aspects of a clear norm of unilateral humanitarian intervention, or, alternatively, what the advantages of the current "flawed" regime might be. In large part due to human rights concerns, they have taken for granted the notion--deeply rooted in legalistic minds--that norms are best expressed in codified laws. (1)

   Today's regime of unilateral humanitarian intervention is that of a chiaroscuro, somewhere between dawn and sundown. Is this chiaroscuro satisfactory or would legal clarity benefit the international system? This Article looks critically at the regret expressed by many internationalists that no adequate regime of unilateral humanitarian intervention currently exists and challenges the prevailing notion that a clearly defined norm of unilateral humanitarian intervention would a priori be more desirable than not having one. Many analyses overlook the question of whether it is more desirable to have a rule of unilateral humanitarian intervention capable of dealing with complex humanitarian crises, or whether the absence of a clearly defined rule suffices for the purposes of international law and the protection of human rights. (2) This Article argues that, given the present state of the international system, the codification of a precise norm may not be preferable to the ambiguous regime currently in place.

   Ideally, unilateral humanitarian intervention should be circumscribed within a clear legal framework, (3) which would promise consistency and predictability. However, in an international society where inequalities and imbalances prevail over democracy and respect for human rights, the conditions simply do not exist for the realization of the strict normative approach. Until the time becomes ripe for the adoption of a stricter normative approach, the international community should make the most of the current ambiguous regime.

   The debate over codification reflects a broader query of legal theory. Legal jurisprudence has long hesitated between rules and standards, between specificity and "ambiguity." (4) In the context of unilateral humanitarian intervention, this hesitation may be characterized as one between two legal perspectives: "Strict normativity" and "normative ambiguity." Strict normativity would entail the adoption of a "strict" or clear legal framework for the doctrine of unilateral humanitarian intervention. Such a framework would set out the limited instances in which unilateral humanitarian intervention can be conducted lawfully (ad bello) and determine which rules govern its conduct (in bello). Normative ambiguity, in contrast, would maintain the flexible and ambiguous status quo that enables states to have recourse to ad hoc diplomacy. (5) Before discussing these two perspectives, it is instructive to review briefly the development of unilateral humanitarian intervention and clarify terminology.

   Unilateral humanitarian intervention is a military intervention undertaken by a state (or a group of states) outside the umbrella of the United Nations in order to secure human rights in another country. (6) Initially, intervention (before being called unilateral humanitarian intervention) was intended as a means to protect one's own nationals abroad. During the Cold War, states' interventions on foreign territory were justified under the right to self-defense (7) or a combination of other motives, not under a general right to intervene on humanitarian grounds. (8) With the end of the Cold War, however, states began approaching humanitarian intervention as a way to protect other states' nationals and have increasingly relied on Chapter VII of the U.N. Charter, significantly broadening the scope of the doctrine of humanitarian intervention. (9)

   From the outset, the practice was criticized as legitimizing interference in another state's internal affairs, contrary to well-entrenched principles of international law. (10) When expanded to the mistreatment of any human being in any country, what increasingly appeared as a doctrine of intervention seemed all the more threatening to certain states, and dubious to many scholars. After losing its initial justification--namely, the guarantees attached to a person's nationality--individuals began questioning the lawfulness and legitimacy of unilateral humanitarian intervention.

   While some states have rejected the idea of a right to intervene, (11) the academic world remains divided on the legality of unilateral humanitarian intervention. While a number of scholars recognize the lawfulness of the practice, (12) others maintain that it violates Article 2(4) of the U.N. Charter (13) (prohibition on the use of force) and the sacredness of the principle of state sovereignty. (14) Today, in part because of these uncertainties, the legal regime of unilateral humanitarian intervention is unclear. A review of each of the words comprising the concept highlights how difficult it is to define.

   * Unilateral. (15) Regardless of the number of states participating in a humanitarian intervention, the intervention remains unilateral so long as the operation is not supervised by the United Nations. Humanitarian interventions authorized by the U.N. are therefore excluded from the scope of this Article. Similarly, it is beyond this Article's scope to determine when a given operation ceases to be unilateral and becomes collective. For example, some argue that the intervention in Kosovo, undertaken by a regional organization (NATO), was collective in nature. (16) Nevertheless, NATO's intervention in Kosovo is regarded here as falling within the meaning of "unilateral," simply because it took place without the U.N. Security Council's authorization. (17)

   * Humanitarian. Even though many interventions have been justified as humanitarian, one can doubt whether the motives of the intervening state were truly humanitarian. In fact, intervening states seldom portray their intervention as solely humanitarian, and often refer to additional justifications for their action. (18) The wide range of justifications invoked in support of a given intervention tends to undermine the humanitarian nature of such intervention. (19) For this reason, some have asked whether military intervention for humanitarian purposes exists at all. (20) This Article will accept the possibility of a truly humanitarian intervention.

   * Intervention. Finally, the task of defining with precision what intervention means is complicated by the fact that the nature and modalities of the military operation itself do not answer to a given, immutable pattern. Because the conduct varies from one intervention to another, "it is impossible to be too rigorous in abstract legal terms about the doctrinal contours of interventionary practice." (21)

   For the purposes of this Article, it is assumed that unilateral humanitarian intervention--lawful or not--has become a reality of international law. As Secretary General of the United Nations Kofi Annan said, "we need to adapt our international system better to a world with new actors, new responsibilities, and new possibilities for peace and progress." (22) Hence, this Article will focus on whether there should be rules to govern unilateral humanitarian intervention, rather than on the lawfulness of the practice itself.

   As the attempt to define it shows, unilateral humanitarian intervention is a malleable concept, which makes its justifications, practice, and prospects difficult to grasp. (23) Would a stricter normative framework ease the task at all? Section II, immediately following this introduction, argues that codification would not necessarily help "pin down" unilateral humanitarian intervention.

   Section III takes a fresh and more controversial look at intervention. It suggests that a permissive regime already governs this area of international law. It also acknowledges the exceptional character of the remedy of unilateral humanitarian intervention and the advantages of keeping it unofficial and limiting its use. Finally, the section shows that--despite the advantages normative ambiguity holds in the short term for the intervening state, the target state, and human...