Global governance: the hypocrisy problem
Ian Hurd, who’s done fascinating work on the question of legitimacy in international politics, has a new essay out on the legality of humanitarian intervention. He’s mostly addressing the hard case of whether intervention is permissible without Security Council authorization. He canvasses the arguments for against and concludes that there’s no real way to resolve ...
Ian Hurd, who's done fascinating work on the question of legitimacy in international politics, has a new essay out on the legality of humanitarian intervention. He's mostly addressing the hard case of whether intervention is permissible without Security Council authorization. He canvasses the arguments for against and concludes that there's no real way to resolve the debate: both sides have plausible legal arguments that draw in different measures on the UN Charter, state practice, and conceptions of state sovereignty.
Ian Hurd, who’s done fascinating work on the question of legitimacy in international politics, has a new essay out on the legality of humanitarian intervention. He’s mostly addressing the hard case of whether intervention is permissible without Security Council authorization. He canvasses the arguments for against and concludes that there’s no real way to resolve the debate: both sides have plausible legal arguments that draw in different measures on the UN Charter, state practice, and conceptions of state sovereignty.
That conclusion usually leads to a further one: that the debate on the legality of intervention is all but meaningless–nothing more than a clash of political values dressed up in legal terminology. Hurd, by contrast, insists that the indeterminacy of the debate and the strategic use of international law by states does not render it unimportant:
The law may well be incoherent, and it may be unable to distinguish between compliance and noncompliance, but it remains politicallypowerful and therefore important. The challenge for scholars is to explain how it is that the commitment to the rule of law coexists with this fundamental ambiguity.
I agree with Hurd that the question of how international law rhetoric is used matters on its own. But he declares a tie on the legal question too easily. As with everything in law, there are arguments that can be made on both sides. But the arguments against the legality of humanitarian intervention are much stronger. Taken together, Article 2(4) and Article 51 of the UN Charter make clear that force other than self-defense is proscribed (there are, of course, very interesting questions about the precise limits of self-defense, but even a broad reading of self-defense does not encompass humanitarian intervention).
The argument that the practice of states has somehow altered the UN Charter structure enough to permit humanitarian intervention in thin. That approach becomes even less plausible when it is argued that state practice has created space for humanitarian intervention without doing away with the overall prohibition on the use of force (not many are willing to concede that the prohibition has disappeared entirely). Forcible humanitarian intervention without the Council’s imprimatur may be right in some cases, but it isn’t legal.
I say this as someone who usually supports humanitarian intervention and who believes that the broad project of international law is important. The dilemma for those of us who fall into this camp is somewhat different than the one Hurd describes: it’s not a question of how to deal with indeterminacy but how to grapple with our own hypocrisy–and to assess how much hypocrisy can be tolerated before it undermines the entire international law project.
Thinking about international governance issues through the lens of hypocrisy seems particularly important at the moment. The emerging powers are with increasing plausibility challenging the double-standard built deep into the UN’s structure: that while all states are declared in Article 2(1) to enjoy "sovereign equality," a few have the right (through their Security Council veto power) to ensure that the normal rules don’t apply to them. And that’s just one of many perceived injustices in the international architecture. The question of why certain states may have nuclear weapons while others may not still rankles, as does the American and European hold on World Bank and IMF leadership.
The hypocrisy surrounding the bedrock principle of sovereign equality is increasingly evident in other ways. From different angles, both the war on terrorism and the campaign for a "responsibility to protect" challenge the notion that states are fundamentally equal. Scholars and politicians have argued with greater and lesser explicitness that those states who mistreat their own populations or harbor terrorists thereby lose some of the protections of sovereignty: but no one has managed to craft an even rudimentary system for determining whether and how this sovereignty-shedding happens. Key players in the international system still officially subscribe to the notion of sovereign equality even as they defy it in practice. The reality is that there are several different categories of states, and they are treated quite differently, largely as a consequence of their particular form of internal governance (or lack thereof).
None of this is to argue that we should abandon our convenient hypocrisies and seek some pristine (and unprecedented) state of international honesty. A certain amount of hypocrisy is important–probably vital–in any social context, and certainly in international relations. But the question of how much and what kinds can be tolerated is important. Discussions of global governance could do with a little more frankness about the gap between what is said and what is believed.
David Bosco is a professor at Indiana University’s Hamilton Lugar School of Global and International Studies. He is the author of The Poseidon Project: The Struggle to Govern the World’s Oceans. Twitter: @multilateralist
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