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.
Spreading the Jam 