In response to the mass killing in Syria, many observers have been appalled at the failure of the UN Security Council to take meaningful action. To many, it recalls the failure to help the victims of genocide in Rwanda in 1994, and contrasts badly with the successful effort against Qaddafi in Libya in 2011. Setting aside the question of whether international military action is the right solution to the problem, the Syrian situation recalls the distinction between domestic and international matters in the UN Charter. Specifically, I note that there is no international legal category of a "threat to domestic peace and security" which might serve as the counterpart to the idea of a "threat to international peace and security."
The Security Council has over its history employed a series of devices to overcome this limitation and to discover a legal capacity to intervene in states for problems that are essentially domestic rather than international. While some might condemn these as illegal, I argue they are quite clearly lawful due to the Council's authority to define and redefine the distinction between domestic and international legal matters. However, they may prove to be conceptually problematic since they erase the distinction between domestic and international matters on which the Charter was premised, which then enables us to pretend that international human rights law is what we would hope it could be rather than what it actually is.
The United Nations was designed to serve the purpose of international peace and security-international, in the sense of between states. It was built around the idea that a threat to international peace and security is the concern of everyone, but the domestic affairs of a state are the concern of no one except the state itself. The UN is forbidden by Article 2(7) of the Charter from taking any action that deals with matters "essentially within the jurisdiction of" any member. But it is authorized under Article 42 to take "such action ... as may be necessary," including war and invasion, to respond to a threat to international peace and security.
The three decades since the end of the Cold War are full of ad hoc efforts to get around the Charter's protection of domestic matters. This has been necessary in order to make the Security Council relevant for the pressing issues of the day, which have generally not been the kind of inter-state conflicts for which the Charter was written. At each step, the Council...