Is Humanitarian Intervention Legal? the Rule of Law in an Incoherent World (Essay‪)‬

The concept of humanitarian intervention has evolved as a subset of the laws governing the use of force and has very quickly come to occupy an institutional position alongside self-defense and Security Council authorization as a legal and legitimate reason for war. It is both widely accepted and yet still highly controversial. This article considers whether humanitarian intervention is legal under international law. This is a common question but one that produces an uncertain answer: humanitarian intervention appears to contradict the United Nations Charter, but developments in state practice since 1945 might have made it legal under certain circumstances. Those who argue for its legality cite state practice and international norms to support the view that the prohibition on war is no longer what it appears to be in the Charter. The debate suggests that humanitarian intervention is either legal or illegal depending on one's understanding of how international law is constructed, changed, and represented. Since these questions cannot be answered definitively, the uncertainty remains fundamental, and the legality of humanitarian intervention is essentially indeterminate. No amount of debate over the law or recent cases will resolve its status; it is both legal and illegal at the same time. This article examines the implications of this finding for the idea of the rule of law in world politics. It suggests that the traditional emphasis that scholars have put on compliance with international law is misplaced; that is, the power of international law in this case comes not from its ability to differentiate rule breakers from rule followers, but rather from its ability to shape the terrain for political contestation in international relations. To the extent that state practice alters the meaning of international law, the distinction between compliance and noncompliance is unsustainable. Disputes over compliance and noncompliance are proxies for disagreements over the substantive behaviors in question, and they cannot be resolved by reference to the rules themselves. As I argue, international law should be seen as a resource that is used by states, rather than as a fixed standard against which we can assess behavior.