The Legitimacy of Humanitarian Interventions

Leiden Journal of International Law

Volumn 19, Issue 3, 2006, Pages 669-692

  Janse, Ronald ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

cosmopolitanism; legitimacy of humanitarian intervention; liberalism; Rawls; Tes n; turn to ethics; Walzer

Indexed keywords

EID: 34248666229     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003517     Document Type: Article

References (107)

1. T. Franck, ‘Interpretation and change in the law of humanitarian intervention’, in J. L. Holzgrefe and R. O.
2. Keohane (eds.), Humanitarian Intervention” Ethical, Legal and Political Dilemmas (2003), 216.
3. Danish Institute of International Affairs, Humanitarian Intervention” Legal and Political Aspects (1999), 11.
4. See Franck, Danish Institute of International Affairs, Humanitarian Intervention” Legal and Political Aspects note 1, at 215-16.
5. For discussion of these interpretations, see, among others, J. E. Rytter, ‘Humanitarian Intervention without the Security Council” From San Francisco to Kosovo-and Beyond’, (2001) Nordic Journal of International Law
6. B. Simma, ‘NATO, the UN and the Use of Force” Legal Aspects’, (1999) 10 EJIL 1; S. Chesterman, JustWar or Just Peace” Humanitarian Intervention and International Law (2001).
7. See Franck, Danish Institute of International Affairs, Humanitarian Intervention” Legal and Political Aspects note 1.
8. Discussed in Danish Institute of International Affairs, Danish Institute of International Affairs, Humanitarian Intervention” Legal and Political Aspects note 2, at 111-20.
9. F. Teso'n, ‘The Liberal Case for Humanitarian Intervention’, in Holzgrefe and Keohane, Discussed in Danish Institute of International Affairs note 1, at 93.
10. M.Walzer, Just and UnjustWars” AMoral Argument with Historical Illustrations (2000).
11. M.Walzer, ‘The Moral Standing of States” A Response to Four Critics’, (1980) 9 Philosophy and Public Affairs 209.
12. M. Walzer, ‘The Politics of Rescue’, (1995) 35 Dissent 35; M. Walzer, ‘The Argument about Humanitarian
13. Intervention’, (2002) 49 Dissent 29.
14. M.Walzer, Arguing aboutWar (2004).
15. Walzer's theory of humanitarian intervention has been discussed in P. Laberge, ‘Humanitarian Intervention”
16. Three Ethical Positions’, (1995) 9 Ethics and International Affairs 17; M.W. Doyle, ‘The New Interventionism’
17. (1998)12EthicsandInternationalAffairs 63;D.Luban, ‘JustWarandHumanRights’, inC.Beitz (ed.), International
18. Ethics (1985), 195; J. Slater and T.Nardin, ‘Nonintervention andHuman Rights’, (1986) The Journal of Politics 86;
19. C. Beitz, ‘Nonintervention and Communal Integrity’, (1980) 9 Philosophy and Public Affairs 385; J. McMahan
20. ‘The Ethics of International Intervention’, in A. Ellis (ed.), (1986) Ethics and International Relations 24; S. Caney
21. ‘Humanitarian Intervention and State Sovereignty’, in A. Valls (ed.), Ethics in International Affairs (2000), 117;
22. V. Zanetti, ‘Ethik des Interventionsrechts’, in W. Kersting and C. Chwaszcza (eds.), Politische Philosophie der internationalen Beziehungen (1998), 297.
23. See Walzer, ‘Humanitarian Intervention” note 8, at 58.
24. ‘Humanitarian Intervention”., at 53, andWalzer, ‘Humanitarian Intervention” note 9, at 224, 233.
25. Walzer, ‘Humanitarian Intervention”. note 9, at 233.
26. ‘Humanitarian Intervention”., at 222.
27. ‘Humanitarian Intervention”., at 220.
28. See Walzer, ‘Humanitarian Intervention”… note 8, at 88.
29. ‘Humanitarian Intervention”., at 86.
30. See Walzer, ‘Humanitarian Intervention”… note 11, at 69.
31. ‘Humanitarian Intervention”., at 225.
32. ‘Humanitarian Intervention”., at 107.
33. ‘Humanitarian Intervention”., at 70.
34. J. Rawls, The Law of Peoples (2002).
35. Rawls's views on humanitarian intervention are discussed in F. Teso'n, ‘The Rawlsian Theory of International
36. Law’, (1995) 9 Ethics and International Affairs 80; M. Blake, ‘Reciprocity, Stability, and Intervention” The Ethics of Disequilibrium’, in D. K. Chatterjee and D. E. Scheid (eds.), Ethics and Foreign Intervention (2003), 53; C.
37. Beitz, ‘Rawls's Law of Peoples’, (2000) 110 Ethics 669; T. Pogge, ‘Rawls on International Justice’, (2001) 51
38. The Philosophical Quarterly 246; A. Buchanan, Justice, Legitimacy and Self-Determination” Moral Foundations for
39. International Law (2004), 158; K.-C. Tan, ‘International Toleration” Rawlsian versus Cosmopolitan’, (2005) 18
40. LJIL 685.
41. The statement thatWalzer's theory is neutralneeds to be qualified, as the second reviewerhas rightly pointed out tome, in that this theory is based onthe idea that communities are organized instates and have a political architecture that permits the expression and exercise of self-determination of at least one community and sufficient political and physical integrity to permit the notion of non-intervention to have some purchase.
42. See Rawls, The statement thatWalzer's theory is neutralneeds to be qualified, as the second reviewerhas rightly pointed out tome, in that this theory is based onthe idea that communities are organized instates and have a political architecture that permits the expression and exercise of self-determination of at least one community and sufficient political and physical integrity to permit the notion of non-intervention to have some purchase. note 24, at 23-9.
43. For discussion seeA. Buchanan, ‘Rawls's Law of Peoples” Rules for aVanishedWestphalianWorld’, (2000) 110
44. (4) Ethics 697.
45. See Rawls, The statement thatWalzer's theory is neutralneeds to be qualified, as the second reviewerhas rightly pointed out tome, in that this theory is based onthe idea that communities are organized instates and have a political architecture that permits the expression and exercise of self-determination of at least one community and sufficient political and physical integrity to permit the notion of non-intervention to have some purchase. note 24, at 14.
46. The statement thatWalzer's theory is neutralneeds to be qualified, as the second reviewerhas rightly pointed out tome, in that this theory is based onthe idea that communities are organized instates and have a political architecture that permits the expression and exercise of self-determination of at least one community and sufficient political and physical integrity to permit the notion of non-intervention to have some purchase., at 14.
47. The statement thatWalzer's theory is neutralneeds to be qualified, as the second reviewerhas rightly pointed out tome, in that this theory is based onthe idea that communities are organized instates and have a political architecture that permits the expression and exercise of self-determination of at least one community and sufficient political and physical integrity to permit the notion of non-intervention to have some purchase., at 60.
48. The statement thatWalzer's theory is neutralneeds to be qualified, as the second reviewerhas rightly pointed out tome, in that this theory is based onthe idea that communities are organized instates and have a political architecture that permits the expression and exercise of self-determination of at least one community and sufficient political and physical integrity to permit the notion of non-intervention to have some purchase., at 59.
49. For this conception of international law, seeG.Gong, The Standard of Civilisation in International Society (1984);
50. G. Simpson, Great Powers and Outlaw States” Unequal Sovereigns in the International Legal Order (2004). Simpson, at 294, points out that Rawls's (and Teso'n's) concept of the outlawstate goes back to the nineteenth-century language of anti-pluralism in international law.
51. See Rawls, For this conception of international law note 24, at 37.
52. For this conception of international law., at 81.
53. For this conception of international law., at 80.
54. For this conception of international law., at 65.
55. For this conception of international law., at 80.
56. For this conception of international law., at 81.
57. For this conception of international law.
58. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International
59. Affairs/Advisory Committee on Issues of Public International Law (2000), at 9” ‘international failure to take action against large-scale human rights violations is not only wrongful… but also encourages repressive regimes to use, or continue to use, harsh methods in order to maintain their own positions of power. It is precisely these regimes that are most likely to undermine international order as violence within their borders “spills over” to other countries. Passivity on the part of the international community thus not only leads to greater human suffering and injustice, but can also threaten collective security’.
60. See Rawls, Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International note 24, at 81 (n. 26).
61. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 94 (n. 6).
62. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 121.
63. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 61.
64. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 81.
65. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 83.
66. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 121.
67. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 122.
68. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 61.
69. Compare the recent Dutch report on humanitarian intervention by the Advisory Council on International., at 59.
70. J. Rawls, Political Liberalism (1993), 55-8.
71. Political Liberalism., at 11.
72. Political Liberalism., at 67.
73. For highly critical reviews, see the books and articles mentioned, Political Liberalism. note 25.
74. The best statement of this criticism is in Buchanan, For highly critical reviews note 25, at 162-75.
75. F. Teso'n, Humanitarian Intervention” An Inquiry into Law andMorality (1997); Teso'n, ‘Collective Humanitarian
76. Intervention’, (1996) University of Michigan Law School Journal 232.
77. See Teso'n, Intervention’ note 7, at 98, 101 (the italics are Teso'n's).
78. See Beitz et al., Teso'n note 25.
79. See Teso'n, Teso'n note 7, at 97.
80. Teso'n., at 93.
81. See Teso'n, Humanitarian Intervention (1997), at 125.
82. See Teso'n, Teso'n note 7, at 95, 98.
83. Teso'n., at 98-9.
84. Teso'n., at 97.
85. Teso'n, Teso'n., at 100-3, makes this point, but it is not clear whether that argument is intended to show that most non-liberal and non-democratic states should support humanitarian interventions in cases of serious violations of basic rights, or that humanitarian interventions are justified only in such cases for non-liberal and liberal peoples alike.
86. See Blake, Teso'n note 25, at 66.
87. See Teso'n, Blake note 7, at 99, 115-16.
88. See Blake, Blake note 25, at 66. See also Teso'n, Blake note 7, at 116-18.
89. This line of reasoning can be found in an essay by Wolfgang Kersting, who makes a distinction between transcendental or existential human rights and programmatic human rights, the former being rightswhich enable people to live, the second being rights which are instrumental to the realization of a conception of the good life. According to Kersting, the former category of rights is to be protected if necessary bymilitary means by outsiders, while the latter is not an object of international concern, but of domestic politics. This comes close to the ideas of Rawls andWalzer, but one of the main differences is thatKersting's theory is based on the idea that humans as humans have existential rights. Kersting is thus a non-liberal cosmopolitan. See
90. W. Kersting, ‘Bewaffnete Intervention alsMenschenrechtsschutz’, in R.Merkel (ed.), Der Kosovo-Krieg und das
91. Vö lkerrecht (2000), 187, at 218-23.
92. See Blake, Vö lkerrecht note 25, at 66-7.
93. See Teso'n, Blake note 7, at 113-14.
94. Blake, Teso'n note 25, at 67, mentions two other considerations. First, since it is difficult to offer any single interpretation of the abstract idea of liberalism of equal concern and respect, and since liberals disagree widely about the implications such ideas have, it is wise for a state to bemodest and restrictive as to which injustices it regards as sufficient to license intervention” ‘To put things bluntly” if we cannot agree about what liberal justice demands, it makes sense to avoid intervention in all but the most obvious and clear cases of injustice.’ Second, foreign political practices are difficult to understand and onemay very well err in condemning as illiberal those practices which one does not fully understand. But these considerations, wise though they may be, backfire immediately on the liberal cosmopolitan view of international relations. For if the requirements of liberalism are uncertain and if foreign cultures are difficult to understand, how can liberal cosmopolitans justify even the mildest form of non-military pressure to impose their own values on other states?
95. See Teso'n, Blake note 7, at 98-9; Blake, Blake note 25, at 65-9.
96. See, for example, the rather optimistic book by J. Dobbins, J. G. McGinn, and K. Crane, America's Role in
97. Nation-Building” From Germany to Iraq (2003), and the much more sceptical analysis in F. Fukuyama, State
98. Building” Governance andWorld Order in the Twenty-First Century (2004).
99. M. Koskenniemi, ‘The Lady Doth Protest Too Much. Kosovo, and the Turn to Ethics in International Law’
100. (2002) TheModern Law Review 159.
101. For humanitarian interventions asWestern crusades, see also F. Schirrmacher (ed.), DieWestliche Kreuzzug.
102. Positionen zum Kosovo-Krieg (1999); G. Beestermö ller, ‘Die humanitä re Intervention-Kreuzzug im neuen
103. Gewand’, inG. Beestermö ller (ed.),DieHumanitä re Intervention-Imperativ derMenschenrechtsidee? (2003), 141;
104. W. Kersting, For humanitarian interventions asWestern crusades note 70, at 209; A. Orford, Reading Humanitarian Intervention” Human Rights and the Use of
105. Force in International Law (2003), at 18-34.
106. Koskenniemi, Force in International Law note 76, at 160.
107. A reviewer has rightly pointed this out. For the imperialistic aspect of the language of human rights, see, among others, Orford, Koskenniemi note 77.