(My thanks to IntLawGrrls for the opportunity to contribute, in 2 parts, a version of remarks I delivered on the at the March 2012 annual meeting of the American Society of International Law. A full version of my comments will be published in the ASIL Annual Meeting Proceedings)Two trends challenge the ability of international law – in particular, the collective security structure of the U.N. Charter – to constrain the use of force. Today’s post will address the first trend, of changing normative understandings; the second trend, of changing warfare technologies, will be addressed in a post tomorrow.
Changed understandings of sovereignty
Increasingly in recent decades, legal scholars, advocates, and policymakers have articulated an understanding of state sovereignty as limited. A state is said to be required to execute certain responsibilities. If it fails to do so, others may step to ensure proper execution of those responsibilities. The argument emerged in two very different discourse communities:
►Human rights, which speaks of atrocity prevention and the responsibility to protect; and
►National security, which talks of state duties to prevent the export of terrorism.
Responsibility to protect
A 2001 report by the International Commission on Intervention and State Sovereignty offered a starkly different understanding of sovereignty than that taken for granted prior to World War II:
‘State sovereignty implies responsibility…Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.’
The report noted that the use of military force to protect populations should be a last resort, authorized by the U.N. Security Council, yet it stopped short of making such authorization a requirement. If the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action,” the report stated, “concerned states may not rule out other means to meet the gravity and urgency of that situation.”
The normative logic of responsibility to protect suggests that Council authorization should not be dispositive. As Anne Orford put it in her IntLawGrrls posts, the conceptual framework implies that the lawfulness of state authority is dependent on the capacity and will to protect populations from at least certain kinds of egregious harms. As a matter of logic, if sovereignty involves a responsibility to protect, and a state’s failure to protect its own population triggers a responsibility to protect in other states, that responsibility exists regardless of the (in)action by the politicized and veto-prone Council.
Prior to the terrorist attacks of September 11, 2011, most states accepted (publicly, at least) the international law principle that force could not be used inside the territory of a sovereign state unless the:
► State at issue consented;
► Security Council authorized use of force under Chapter VII of the U.N. Charter; or
► Use of force was in self-defense against an “armed attack” as delineated by Article 51.
But the 9/11 attacks, which occurred two months before issuance of the first report on responsibility to protect, changed things.
The attacks made glaringly apparent the degree to which globalization democratized the means of mass destruction, reduced the salience of international borders, and accelerated the speed with which money and materiel could travel. Changes in transportation, communication, and weapons technologies, to name a few, undermined the logic of nonintervention principles. Within the national security community, normative and legal arguments for expanding the basis for using force emerged.
Soon after 9/11, the administration of President George W. Bush asserted what it called “preemptive” self-defense in order to justify the war in Iraq.
The logic was straightforward (though the facts, inconveniently, were not): in the age of ballistic missiles and nuclear, chemical, and biological threats, states may only have a moment’s notice (if any) before an imminent and devastating attack, and the framers of the U.N. Charter could not have meant that states had to wait for an attack to occur or be imminent, in the traditional sense, before using force.
Later, a different formulation emerged.
Among those articulating it was President Barack Obama’s chief counterterrorism advisor John Brennan, who stated in a 2011 speech that the United States reserves a
‘right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.’The assertion came in the context of the United States’ repeated use of force inside the borders of sovereign states with which it is not at war – for example, Syria, Pakistan, Yemen, and Somalia – at times without affected state’s public consent. (Private consent may be another matter.)
The logic of Brennan’s “unwilling or unable” assertion rests on logic that appears structurally identical to that embraced by proponents of the responsibility to protect:
► Sovereignty is said to imply responsibilities as well as rights;
► States are said to be required to refrain from internal acts that threaten the citizens or basic security of other states; and, as a result,
► States are required prevent nonstate entities from engaging in such acts inside their borders.
(An example of this may be found in the duties imposed on states in Security Council Resolution 1373, “Threats to international peace and security caused by terrorist acts” (2001)). If a state fails to fulfill this responsibility—by, for instance, harboring terrorists—other states are entitled to use force within its borders if doing so is necessary to protect themselves or uphold global security.
Convergence of sovereignty-limiting theories
This development of theories that limit sovereignty, occurring in both the human rights and the national security communities, appear to be converging. The theories are structurally parallel. Each serves to legitimize and reinforce the other – that is, to legitimize the view that, under certain circumstances, external actors may intervene in a state’s “internal” affairs without the state’s consent, and quite possibly without the consent of the Security Council.
I do not assert that any of this is either wise or close to being settled law. The scope, meaning, and legal status of the responsibility to protect remain controversial. The United States’ asserted legal defense of recent drone strikes and other cross-border uses of force is even more so. Nonetheless, each of these normative frameworks is articulated with increasing frequency, each is couched in legal terms, and each offers the raw materials from which states and other actors can construct legally plausible arguments.
Both the responsibility to protect and the terrorism prevention frameworks, moreover, raise obvious and glaring questions for those concerned with the international rule of law:
► Who gets to judge when a state should be deemed to have "waived" its sovereignty and abrogated its responsibilities?
► Who gets to decide when a use of force inside the border of a non-consenting state is lawful? How much force is acceptable?
► Which actors get to use force? A single state acting unilaterally? Regional organizations? Coalitions of the willing?
If each state begins to claim the right to judge for itself when force can be used inside the borders of another state, the world will become an even more frightening and unstable place.
(Tomorrow: Changing technologies and collective security)