I’ve been following with much interest the debate initiated by Harold Koh on the legality of humanitarian intervention under international law over at the Just Security Blog and to which such esteemed scholars as Kevin Jon Heller, David Kaye and Carsten Stahn have responded, prompting a response by Harold Koh.
I resisted until now entering the fray of the discussion, because it seemed to me that, albeit very brilliantly, these authors were basically covering familiar ground and points of contention in the ongoing discussion on this issue. I tend to agree that one should be clear on the distinction between law and policy, and be clear on the fact that the latter having absolutely no obligation to abide by the current state of the former. In relation to policy, I personally have no opinion on what is preferable and will leave this to my colleagues, who actually have an influence in policy discussions…
What triggers this post is a small methodological point on the framing of the argumentation and possible confusion between the UN Charter and general international law. Indeed, the heart of the legal discussion seems to be how to interpret Article 2(4) of the UN Charter which relates to the prohibition of the threat or use or force, and whether this might be read to allow some limited forms of humanitarian intervention outside a UNSC Chapter VII authorization. The “textualists” (Heller, Kay, Stahn) say that cannot, while the “progressist” (Koh) thinks that it is, based both on a reading of the UN Charter and its objectives and examples of developing practice in that direction.
However, I think this framing of the question might not be sufficiently precise. Indeed, The UN Charter is a treaty, albeit of a quasi-universal nature, which constitutes the internal law of one international organisation, which does not technically overlap with general international law, which might therefore be different on certain aspects. We tend to equate the UN legal order with the international legal order, but that is a methodological mistake, even if there is often substantial correspondance. This conflation between the UN Charter and international law is present in Koh’s original post, and the commentators just followed suite after that. However, accepted that there is in fact a difference between the two calls for being more specific on what is being argued and from what perspective it is being argued.
From the internal point of view of the UN, I would be on the side of the textualists. I think that Harold Koh’s interpretation of the UN Charter, while smart, is not ultimately convincing on the possibility of using force outside of UNSC action (assuming this is not a case of self defense).
However, the debate should then move to general international law, where the UN Charter might be indicative of a practice and an opinio juris of states, but not necessarily. This opens new avenues on arguing on humanitarian intervention.
First of all, Koh’s “opposition” can rely not on Article 2(4) of the UN Charter, but on the arguably jus cogens nature of the customary norm on the prohibition of the use of force, an expression I’m surprised I did not see in any of the responses to Koh.
On the other side, this should free Koh from having to argue that there is a change in the way we should read the UN Charter, and argue for the development of a customary norm on humanitarian intervention outside the UN Charter. You can perfectly argue the latter without the former. If you can establish that there is sufficient state practice and opinio juris to support today a right of humanitarian intervention (which I don’t think there is, but that is a different debate) that is sufficently strong to overcome the jus cogens prohibition on the use of force, then the UN Charter need only be dealt with as possible opinio juris to the contrary that would need to be overcome. Of course, this would possibly create new difficulties of a state acting in conformity with customary international law, but in violation of a treaty obligation under the UN Charter. But it does mean that “throwing” the possible violation of a treaty provision back at an argument based on the existence of a competing customary law norm becomes suddenly less effective.
The idea is therefore not to take sides here, but to wonder if all comments on this issue were not forgetting to think (and therefore frame their arguments) outside the box of the UN Charter, which, at the end of the day, is, as pointed out by Koh and Kaye is an outdated document which is struggling to adapt to changing international power dynamics and structures. At some point, thinking outside the UN Charter might have to be an intellectual necessity, beyond the humanitarian intervention debate, because you can add as many horses to your cart to go faster, at some point, nothing beats buying a new car.