Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)


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Just war theory, in its entirety, articulates appropriately high standards for morally judging war and for justifying humanitarian interventions. There are some significant implications of the just war framework for assessing the moral justifications for humanitarian interventions. There are, for example, daunting epistemic issues in establishing that threshold conditions are satisfied or in assessing the complex consequences of an intervention.

The latter is only aggravated by the near certainty of unintended consequences for military campaigns and by the frequent situation of estimating effects of using armed force in foreign lands and cultures. The same inequalities of capability result in an unequal distribution of the right or responsibility to intervene militarily on humanitarian grounds, with all the attendant costs of such interventions. There is a basic deontic category issue in exploring the moral merits of humanitarian interventions via just war theory.

Is a justified war a matter of a right, responsibility, or duty? And what kind of right or duty is signaled by establishing that a war is justified?

What kind of right or duty, then? Addressing such questions from a just war framework intersects with varying conceptions or analogies employed in discussing interventions.

Is Humanitarian Intervention a Good Idea?

For example, one might consider interventions in defense of others as a right associated with rights of self-defense. Such a right of defense — of self or of others — is one that the right-holder chooses whether to exercise or not: just as there is no duty to fight in self-defense, then, there is no duty to use deadly force in defense of others.

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Humanitarian interventions, then, are a matter of moral right, not duty or obligation; and they are what are called liberty-rights or discretionary rights of intervention. In as much as jus ad bellum principles identify when there is such a right to wage war, then they can be used to identify when there is a moral right to intervene militarily for humanitarian purposes. In contrast, armed interventions are often portrayed in ways suggesting there is a duty to use military force to address humanitarian emergencies. A common conception is the notion of interventions as rescuing others.

Such imperfect duties are not correlated with others having a right to be rescued, and wide discretion is accorded the obligated as to when, where, and how to discharge the duty. It has also been suggested that interveners are more akin to a police force, which suggests that justified interventions are discharging a duty to protect and defend others in grave danger. A humanitarian intervention, it would seem, is justified under conditions analogous to those for domestically dispatching S. A challenge for either of these conceptions of interventions — as rescue or as constabulary — is a dissonance between a moral duty to use military force for humanitarian purposes and the kind of moral justification for waging war the jus ad bellum principles provide.

Does just war theory establish a moral duty to wage war? If not, how can jus ad bellum principles ever support a duty to intervene militarily? To speak of a moral duty to wage war is today not obviously plausible. The notion of a duty to wage war may be consistent with some classic contributors to the just war tradition, such as Aquinas.

Late 20 th century theorists, like Michael Walzer, argue that sometimes there is a duty literally to combat evil. But the idea that just war theory establishes duties to wage some wars is controversial and defended by some for only quite unusual circumstances, of which, of course, a supreme humanitarian emergency may be one.


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As some have argued, jus bellum can establish at most the moral permissibility or right of intervening; additional considerations are needed to establish humanitarian interventions as morally obligatory. One form of the argument is that, as a matter of international law, practice, and practicality, these correlative obligations fall largely upon national governments and international organizations for example, the United Nations.

Others argue more forcefully that the logic of basic human rights establishes correlative duties to respect, protect, and defend.

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In Basic Rights Princeton, , Henry Shue famously argues that a basic right such as the right not be killed arbitrarily entails not only duties not to kill, but duties to protect or enforce the right: a negative right such as the right not to be killed arbitrarily requires positive action by others as do positive rights to subsistence. Furthermore, Shue argues later, if and when the primary holder of the correlative duties that is, the state fails to meet its obligations, then the duty to protect and defend human rights defaults to others. Thus, humanitarian interventions are justifiable as discharging a default duty to protect and defend basic human rights not being respected by the target state.

Another, related argument to support a duty to intervene derives from theories of global distributive justice. Arguments appealing to rights and correlativity relations are not uncontroversial. For those who distinguish positive and negative rights, for example, the correlative duty for a right to life is simply and only not to kill. Thus, so long as a state or international organization is not the perpetrator of atrocities against its own people, it would seem that correlative obligations have been satisfied without coming close to establishing military intervention as a duty.

An issue in the background is what one takes to be the model for understanding human rights and the extent to which duties of respect and protection correlate with those rights and for whom or what. Just war theory has been the most prominent framework for philosophic discussion of the morality of humanitarian interventions. Other relevant approaches include attention to international law and its ethical implications and an issue central to political philosophy, the concept of state sovereignty. Political realisms deny the applicability of moral norms to state behavior, including uses of military force.

Pacifism typically denies the premise of just war theory, namely, that some wars are morally justifiable, even if waged for humanitarian purposes.


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  5. Much discussion of humanitarian interventions involves legal issues under the Charter of the United Nations, the central and paramount text of the international law of force. Philosophers of law have accorded relatively little attention to international law. Attending to the international law of force and human rights involves issues of interpretation, sources of law, ethics of acting illegally and reform, as well as the extent to which states or people ought to be at the center of the system.

    At the center of the international law about interventions are explicit provisions of the United Nations Charter and human rights treaties. And since humanitarian emergencies typically do not threaten international peace and security, the text permits authorizing few, if any, interventions. Furthermore, the nine core human rights treaties and the Universal Declaration of Human Rights explicitly require only that each state respect, protect, and enforce the provisions listed, such as rights to life.

    Human rights, for example, may be transnational norms, but international law makes the respect, defense, and protection of those rights almost exclusively a domestic matter for each state.

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    So, to promote international peace and security, inter-state uses of armed force are severely limited by law, even when domestic violence against people may be widespread and systematic. There are ethical dimensions to the system of international law as it relates to interventions. The United Nations Charter has been accepted by consent of all and each members of the United Nations — virtually every state on the planet.

    State consent is among the established procedures for creating international law and consent creates compliance obligations for states. So, for positivists, it follows that states and international organizations ought to obey the law and therefore ought not conduct unauthorized humanitarian interventions.

    Legal positivists maintain that there are legal and moral obligations not to interfere militarily with the domestic affairs of states, even in the face of a humanitarian emergency. Challenges to this line of reasoning take several forms. First, some legal scholars quite carefully parse the specific Charter texts in ways consistent with humanitarian interventions being permitted. For example, Article 2 4 does not prohibit all uses of military force, but only those aimed at the independence or territory of another state.

    Legally permissible, then, would be any humanitarian interventions having neither those aims nor those effects. Disagreements about interpretation raise philosophic issues about how best or properly to interpret legal texts. Some dispute such textual parsing as ignoring the original intent of the language. Others deny that original intent is probative, granting a more significant role for contemporary attitudes, beliefs, and norms about interventions, or appealing to a political morality implicit in legal texts and their interpretive history.

    Some argue that long-standing state practice has established a customary right of humanitarian intervention; others deny this claim of fact about state practice, or assert that the written law of the Charter supersedes any putative customary rule. In effect, there is much controversy about what H. One final issue deals with the ethics of acting illegally. At the heart of creating customary law about interventions is establishing a state practice of intervening.

    Cosmopolitan Humanitarianism and the Use of Force

    This requires that states begin creating a custom by acting in ways neither required nor permitted by international law at the time: legality is created over time only by a process initially requiring illegal actions. Given sufficient moral grounds for reforms to permit humanitarian interventions, then, a moral argument can be made for illegally intervening now to address emergencies and thereby contribute to reforming international law.

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    Unauthorized humanitarian interventions then can be seen as a kind of international civil disobedience by states or international organizations. State sovereignty is a major issue for humanitarian interventions, whether as source of opposition or of significant challenge for proponents. For centuries the general idea has been that a sovereign state has supreme authority over its territory, its people, and its relation with other states; and so, other states or organizations are not to interfere with exercises of that supreme authority.

    Matters of sovereignty have been central to political philosophy, international relations, international law, and the institutions and practices constitutive of the modern world order. The literature is vast, the issues complex, the notion of sovereignty contentious and controversial to the core. Subsequent political philosophers, like Locke, Hobbes, Rousseau, and the utilitarians, have focused much on the source, locus, and limits of sovereignty within a state, while merely acknowledging an accompanying externally directed authority to make war, peace, alliances, and treaties with other powers.

    Simply stated, then, state sovereignty involves supremacy and independence of authority with respect to internal matters and with respect to relationships with other powers, including the absence of non-consensual interference by other sovereign states or other organizations. Whether authority is seen as effective control or as a right, the merits of sovereignty as independence are mixed. A plurality of independent sovereign states accords appropriate diversities among peoples of the earth; a system of non-interference promotes an international stability and order. The sovereignty of states is sometimes portrayed as akin to that of individual persons, coupling autonomy rights over their own life, independence from external control, and mutual, reciprocal duties not to interfere with others.

    Also, state sovereignty is long embedded in international law. In contrast, it is argued, taken too far, sovereignty precludes any international law at all, since supremacy and independence is reduced by any transnational legal rules limiting war or breach of treaties, for example. Similar reasoning leads to concerns that sovereignty precludes appeals to transnational moral norms, such as, for example, natural law duties or universal human rights.

    For example, current international law prohibiting torture, genocide, or disregard for basic human rights effectively redefines the scope of authority accorded states: such acts are not expressions of sovereignty, but abuses. An often neglected line of argument shows that states themselves express their sovereignty sometimes in order to limit the scope of their own sovereignty — what S.

    On almost any account, state sovereignty includes the right to enter into treaties, just as personal autonomy rights can be expressed by making promises or signing contracts that obligate, bind, and limit future actions.

    Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy) Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)
    Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy) Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)
    Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy) Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)
    Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy) Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)
    Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy) Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)
    Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy) Humanitarian Intervention: NOMOS XLVII (NOMOS - American Society for Political and Legal Philosophy)

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