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Ian Hurd on International Law and Security

September 30, 2011

Scales of Justice, Old Bailey, London. Photo by Billogs.

JOHN TESSITORE: Hello, and welcome to another in our series of interviews with leading members of the academic community, sponsored by the Carnegie Council for Ethics in International Affairs. I'm John Tessitore, executive editor of the Carnegie Council and editor of the Council's quarterly journal, Ethics & International Affairs, which is now in its 25th year and is published by Cambridge University Press.

With me today is Ian Hurd, whose most recent article, titled "Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World," appears in the Fall 2011 issue of Ethics & International Affairs. Our discussion today will center on the arguments and issues brought up in that piece, as well as some more general issues related to international law and humanitarian intervention.

Welcome, Ian. Good to have you with us.

IAN HURD: Thank you, John. It's my pleasure.

JOHN TESSITORE: Ian is currently associate professor of political science at Northwestern University. In the 2010-2011 academic year, he was a fellow at the Niehaus Center for Globalization and Governance at the Woodrow Wilson School, Princeton University. He is the author of After Anarchy: Legitimacy and Power in the United Nations Security Council, as well as International Organizations: Politics, Law, Practice. His forthcoming book is Making and Breaking International Law. Which leads us directly into our conversation today. So let's begin.

Ian, certainly one of the major issues in international law is the regulation of war between states. The UN Charter outlaws the use of force by states, but at the same time, it empowers the Security Council, in Chapter VII—and I quote—"to determine the existence of any threat to the peace, breach of the peace, or act of aggression," and "maintain or restore international peace and security."

Obviously there is a considerable tension between these two principles. My question: Are they resolvable?

IAN HURD: You're right to point out that the UN Charter both outlaws the use of force and then permits the use of force through the Security Council. I think the important thing to notice is that Article 2(4) of the Charter, the ban on war, outlaws the use of force by states to settle disputes. So it makes it illegal for states to use the threat or the use of force to resolve their disputes with other states. That takes away from individual states the right to use force whenever they want to, to settle their disputes.

What the Charter does—and I think this is really the heart of why the Charter exists—is to then collectivize that right to use force and locate it in the Council. The section of the Charter in Chapter VII that you read from there, Articles 39 and 41, give the Council the collective right to decide when there's a breach or a threat to international peace and security, and then to respond with anything up to military measureswar, as we saw recently in Libya.

So I don't think there is really a tension in law, or at least there isn't in the original design of the Charter, as they saw it. What it was doing was taking away from individual states the right to use force on their own and collectivizing it in the Security Council.

It's a little bit like what Hobbes had in mind in Leviathan, where you take away from individuals the capacity to use violence themselves and you put all that capacity, in Hobbes's case in Leviathan, in the collective body. That's what the UN Charter does. It's supposed to bring together the individual powers into one collective decision-making body that has the right to use force.

JOHN TESSITORE: Let me just push you on that a bit. According to generally accepted international law, the primary, if not the only, justification for war is self-defense. Moreover, a justifiable response to armed aggression must be deemed, as we often say, necessary and proportionate. Given these prescriptions, what are some of the controversies and ambiguities that they raise, and how are these affected by current law, particularly on humanitarian intervention?

IAN HURD: You're right again that self-defense enters into the world of the United Nations as the only allowable justification for the use of force by one state against another, in the absence of a Security Council resolution. Self-defense remains permitted as a legal basis for war, under certain—

JOHN TESSITORE: But not specified in the Charter. Is it?

IAN HURD: It's not. At least the details of what counts as self-defense are not.

What the Charter does—and this is an interesting little twist of international law, for people who are interested in the law of treaties and the law of organizations—the Charter, in Article 51, says that nothing in the Charter shall impair the inherent right to self-defense. It states that. So in a sense, it doesn't really create a right. It simply notes that this right to self-defense preexists and is not significantly changed by the Charter.

So it's an interesting moment where the Charter kind of defers to customary international law, which is where the law of self-defense lives. It makes clear that this right of self-defense is preserved in the world of the Charter, but it doesn't do anything to tell you under what conditions, with any detail anyway, you can make recourse to this. The Charter doesn't say anything about "necessary and proportionate." 

But all of these things are understood as part of the customary law of self-defense—that self-defense can happen when there's an armed attack, and even before an armed attack, as long as it's necessary and unavoidable and the threat is immediate. So there's a point where this treaty, the Charter, opens up and points you backwards to customary law and lets customary law govern what self-defense is, in a sense.

Through these articles, we get a model of how the laws on war work after 1945. First of all, individual states cannot use force to settle their disputes. They may use force in self-defense, as following customary international law. The Security Council can authorize the collective use of force against a breach of the peace or an act of aggression. So there are these three points in the Charter. That's the legal regime that we live in. Force is banned, except in self-defense or by the Council.

Then along comes the concept of humanitarian intervention, and it messes up these categories. Nowhere in that structure does it say that you can use force for humanitarian intervention. It also doesn't say that you can't. But that puts us in this ambiguous position. Many states have argued that humanitarian intervention ought to be a legal path for war. It ought to be a justification which the system accepts.

JOHN TESSITORE: Can you tell us a few of those states or the types of states that would take that position?

IAN HURD: The Security Council collectively took the position that a massive humanitarian disaster could constitute in itself a threat to international peace and security, and so would therefore be a trigger for the collective use of force.

JOHN TESSITORE: Are you referring to the responsibility to protect, RtoP?

IAN HURD: Even separate from that, the Council has decided after Rwanda that a humanitarian disaster, whether it's made by humans in the form of a genocide or made by nature, perhaps in the form of a hurricane, might be enough to trigger the Council's attention to an issue. That's a little bit separate from responsibility to protect, although the two clearly can work strongly together.

The whole category of humanitarian intervention adds new problems, ambiguity, liveliness to the discussion of what the laws on the use of force allow.

JOHN TESSITORE: Let me ask you, just for the sake of clarification for all our listeners, you have used the term "customary international law" quite a number of times. Give us a quick definition, would you?

IAN HURD: Sure. International law can be made really in two ways. One is by the explicit consent of countries in a treaty and the other is through custom: that is, a long history of the practice of governments behaving a certain way towards other governments and believing themselves to be legally obligated to behave that way. This is what international lawyers refer to as customary international law.

JOHN TESSITORE: Which does or does not have to be ultimately codified.

IAN HURD: That's right. It probably is not codified, or else it would start to look like treaty law. The paradigm example that sets up the category of customary international might be the treatment of diplomats by other countries, before it was codified in the Vienna Convention in the mid-1960s. 

JOHN TESSITORE: I see. Good point.

IAN HURD: How you treat diplomats, the fact that you don't kill them when they arrive, the fact that if you are at war with a country, you still treat their diplomats with respect, and not as combatants—those customs evolved over a long time of European practice. For a long time they weren't written down, but they were generally accepted as legally binding. So that's a piece of customary law.

Self-defense is probably the best contemporary case. The right to self-defense isn't very well written out in any treaty, but states understand it to be a legal category that matters a lot. So that's customary international law.

JOHN TESSITORE: Let's stay with this topic of self-defense for a moment. We seem to agree that wars of self-defense are broadly considered legal in international law, and this right of states is generally thought to precede—and, in some sense, supersede—the UN Charter. Then what does this tell us about the relationship between treaties, customs, and the practice of states in the formation and maintenance of international law?

IAN HURD: Let's treat those two things separately, the first being the relationship between treaties and customs, and the second, between law and practice.

JOHN TESSITORE: Please.

IAN HURD: For treaties and customs, there's a longstanding practice of saying that treaties supersede custom, which sort of makes sense when you think about the process of codifying some rules. If you go to the trouble of taking a customary rule and codifying it into a treaty, the language of the treaty should be taken more seriously, probably, than the practice that formed the custom before.

So when a treaty comes along, it supersedes customary international law, which is why, as I was suggesting earlier, it's so interesting that the UN Charter doesn't tell you that there is a right to self-defense; it simply refers back to a preexisting right of self-defense. In this way, it avoids having the Charter, as a treaty, supersede the customary rule of self-defense.

That is, in a sense, evidence of deference of the treaty to the custom, which is not the normal way of things. But they made it explicit in the Charter that it would work that way, and so it does. So customs generally give way to codified law in the form of treaty.

Now, practice and law. The practice of states is a very complicated contributor to international law, since we expect countries to follow the rules. But in many cases, the practice of states makes the rules.

This creates legal and kind of conceptual ambiguity that my article on humanitarian intervention is trying to work out, as are many other scholars and practitioners. There are interesting cases where countries can make the law by behaving a certain way.

JOHN TESSITORE: Can you give us a case, just as an example?

IAN HURD: Let's take humanitarian intervention. I have said that the UN Charter, if you read it as a text, bans the use of force, including for humanitarian purposes. Since the 1990s, in particular the mid-1990s, countries have maintained that it may sometimes be legal to use force to rescue innocent civilians from, let's say, massacres in other countries, and that this use of force doesn't violate the ban on war, because it's humanitarian.

Countries have argued for the existence of humanitarian intervention as a legal path to war. In doing so, they may be remaking the law. There are many international lawyers who accept that the law has changed because the practice of states has changed. I might say, too, it's not just states. The secretary general and the General Assembly of the United Nations and the Security Council and many others have made related arguments defending the concept of humanitarian intervention as legal. The weight of all of this practice may even have changed the rules.

So then where do we stand? Well, we have a set of international rules that we expect countries to follow, but there are cases where we see that what countries do makes the rules. It's a recursive relationship.

It's hard to know what it means to follow the rules or to break the rules.

JOHN TESSITORE: Let's try to put it in an example here. Does NATO's activity in Kosovo suggest such a situation? What did Goldstone say about it? It was probably illegal, but—what was his term? Legitimate?

IAN HURD: Legitimate, right. NATO's intervention in Kosovo in 1999 to save civilians from massacre by—

JOHN TESSITORE: Did that change the rules?

IAN HURD: I think it did. It's often cited as a point of change in the understanding of the laws on the use of force.

Remember, the Kosovo intervention was not authorized by the Security Council, and it was not understandable as an act of self-defense. It was something else. What it was legally was an operation by NATO, under the justification of humanitarian intervention. This caused a lot of rethinking among international lawyers and politicians about what the rules really are.

As you mentioned, in a very famous case study afterwards, Richard Goldstone and other international lawyers concluded that it was probably illegal for NATO to operate this way, because it violated the Charter, and yet it was probably legitimate because the humanitarian purpose was right—illegal but legitimate.

That is a productive moment, I think, in international law, in the sense that many people after that said, "Well, this should not be illegal. We should reinterpret the law or perhaps change the law on the use of force so that this kind of thing is not illegal anymore."

JOHN TESSITORE: But the tension, if I recall, was that there were, yes, those who said this should not be illegal, and there were also others who said, "This must be a one-time event."

IAN HURD: This is a very interesting twist in the story. You're absolutely right.

Thomas Franck and other leading international lawyers—many of them took the position that humanitarian intervention should happen sometimes, but it should remain illegal, we should not change the rules, because keeping it illegal helps cut down on the moments when it gets used, and we want this to be a very rare thing. We don't want to set a precedent and establish a law that any country can decide for itself when there's a humanitarian disaster in another and then use force to intervene. We don't want to live in that world, said Thomas Franck.

JOHN TESSITORE: I think most diplomats would say the same, or even most governments. Would you agree with that?

IAN HURD: I think most governments would agree that they want to keep this humanitarian intervention a rare thing. But I'm not sure that they would be happy with it remaining strictly illegal. Governments are quite averse to behaving in ways that they think are illegal. I'm not sure how that would work out. Governments want to know that international law is on their side when they act.

JOHN TESSITORE: So it's not enough to have this special arrow in the quiver. They want it to have some kind of basis in international law.

IAN HURD: I think that's right.

And when you look at the Libyan case this year in UN Security Council, you see how the intervening states have constructed a legal justification for essentially humanitarian intervention, making reference to both past Council decisions that say that mass killing is a threat to international peace and security, and also making reference to the responsibility of the Libyan government to protect its citizens.

The resolution from the Council that authorized the Libya mission used the language of the responsibility of the government to protect its citizens. That is obviously taken directly from the concept of the responsibility to protect, which is not quite law, but it may have become a strong norm, and legitimates the use of force.

JOHN TESSITORE: Let's go directly to your article. Clearly this is what you are addressing in your piece in Ethics & International Affairs.

You argue in your provocative title that humanitarian intervention is neither legal nor illegal. I quote you here: "No amount of debate over the law or recent cases will resolve its status. It is both illegal and legal at the same time."

First, I must say, I think there will be quite a number of people who will find this position somewhat controversial. Perhaps you and we at the journal will hear from some of them. We hope so. But given this position, I'm wondering why you, in your words, believe that "the legality of humanitarian intervention is essentially indeterminate."

You have started to talk along these lines. I just want to push you a little bit more. Perhaps you could tell us the strongest indicators that it is illegal and the strongest arguments for its legality.

IAN HURD: I think that Article 2(4) of the UN Charter is the strongest indicator for the illegality of humanitarian intervention. That clause says that states must refrain from the threat or use of force in their relations with other countries, essentially. That bans the use of force.

The rest of the Charter, as we have talked about, allows war by states in self-defense and it allows war by the United Nations as a whole through the Council. That would make humanitarian intervention illegal.

Since about the mid-1990s, many governments and the United Nations and many international lawyers have suggested that state practice has changed and that now countries accept humanitarian intervention as legal.

JOHN TESSITORE: This is not customary international law. This is something else.

IAN HURD: Well, it could be either. There's an argument that customary law has changed and that now what we see in practice is a change in how governments understand their customary obligations.

But it may just be an argument that we need to be pragmatists and not read the Charter in such a literal-minded way as I just quoted, and therefore allow the Charter to kind of breathe as the constitutional instrument of the international system and adapt to the times. That argument suggests that if many powerful governments and a broad range of other governments believe that humanitarian intervention is illegal, then we should read the Charter in light of that belief and allow it to be legal.

The claim in my article about the legality of humanitarian intervention being essentially indeterminate rests on noticing that these two positions, for legality and illegality, get their strength, if you like, from different parts of international law. The illegal argument comes straight from the Charter as a treaty.

The legality argument comes from understanding the practice of states as a potential modifier of the law. This gets to a longstanding, deep debate in the philosophy of international law about how we should understand state practice relative to treaties—

JOHN TESSITORE: Yes, expand on that, please.

IAN HURD: —which really is the source of law. It's not clear in a world of international law whether we can entirely discount what states do when we try to understand the law.

Let's remember that international law is made by states, and if it is ever enforced, it is enforced by those same states. States are the subjects and the authors of international law, which is a little different than how law works in the domestic setting.

In that world, it matters a lot what states say they think their legal obligations are. If states understand their obligations in one way and we as outside readers of a treaty understand it differently, the states, as authors and subjects, are probably the ones with the more definitive or powerful interpretation. So what states say and do can be an important influence on the law, since that is where international law comes from.

The argument about humanitarian being legal or illegal asks, in a way, that you take a position on this deep question about whether the treaty should bind practice or whether practice can change the treaty.

That's not a question that we're going to be able to answer. It has been a central debate in international law for hundreds of years. This is why I feel like the legality of humanitarian intervention as a category of law is indeterminate. It's not clearly forbidden and it's not explicitly endorsed as a legal practice. The arguments that are put forward, for and against, rest on different foundational views about how international law works and where it comes from.

JOHN TESSITORE: It almost sounds, Ian, as though this stalemate makes the whole issue moot, that one has to go beyond the debate and just deal with the real world. Is that too simplistic?

IAN HURD: I think getting on with the real world is a great idea. But it matters a lot to states whether their behavior is legal or illegal, and so they will always be looking for legal justifications for what they want to do.

JOHN TESSITORE: I see.

IAN HURD: The fact that humanitarian intervention can be read as either legal or illegal gives them lots of resources in both directions. You can see in the politics of the Libyan intervention, before it was authorized, that all of these arguments in both directions were being marshaled by different governments for or against the intervention.

In a sense, international law has too many norms and rules and resources, and governments are able to pick and choose the ones that serve their purposes. They can argue that intervention is legal or illegal, depending on how it suits their needs.

Now, that does not mean that the question is moot. I would disagree with those who suggest that, as a consequence of all this ambiguity, international law doesn't really matter. I think it's, in a sense, the opposite.

If we look at what states do, they work very hard to marshal legal resources behind their foreign policy choices. They clearly care very much about being seen as following international law and not breaking international law. But this is at a political register. We're not going to resolve these disputes using technical concepts and resources from international law, where we can get a definitive answer one way or the other.

But governments use international law to justify their positions. This doesn't make it unimportant. I think it shows how very powerful it is.

JOHN TESSITORE: Let me jump in with another quote from your own essay. You say, "The law's effect on behavior must be measured in some currency other than the rate of rule following."

Picking up what you were just saying, what would be that other currency? What measurement do you think works?

IAN HURD: We can't look at all of international law and judge cleanly between compliance and noncompliance with that rule, because, for so many parts of international law, there is no institution or arbitration body to tell us what's an acceptable interpretation and what isn't.

Those bodies do exist in specific locations—let's say the World Trade Organization and its dispute-settlement mechanisms—but for rules like self-defense, the laws on war, humanitarian intervention, torture, there is no institution that can be relied on to give you a definitive interpretation of which state is following the law and which isn't. The International Court of Justice does a little bit of this, but we can set that aside in most cases.

So we won't know when uses of force are complying with or violating Article 2(4) of the Charter, for instance. But we can see the impact of law in how it gets used by states. So I would suggest that we need to pay some attention to the degree to which a law gets invoked by states in their justification. That gives you some measure of the law's impact.

JOHN TESSITORE: Is this what you mean when you say—and I'm quoting you once again—"breaking international law is intrinsically linked to making international law"?

IAN HURD: I think making and breaking international law are both part of the practice of using international law. I would suggest that we pay attention to how governments use the law to justify their positions.

As they use the rules—that is, make reference to them in official statements—they are providing us with a statement of how they want us to interpret the rules. There's a sense in which this is unavoidably remaking the rules as well. It adds something to our long-term understanding of what the rules mean.

The law on self-defense might provide a good example. If we want to know what is allowed in self-defense as a use of force, we look back over history, close history and faraway history, to see how governments have used self-defense as a justification for war in particular cases, and we look at how other governments and organizations have responded to that use of the concept and justification.

We would presumably talk about Osirak. We would go all the way back to the 1830s and talk about the Caroline incident. We would want to talk about the U.S. bombing of Libya. We might talk a little bit about the Iraq invasion by the United States in 2003, which was not justified as self-defense. We would want to talk a little bit about why it wasn't.

Out of discussing all these cases, we would come up with an interpretation of what the rules allow. My point is that we should notice how that interpretation rests on past state practice, and how those past cases get interpreted and deployed in the present crisis affects how we will read the next crisis. So the rules, as they get invoked by states, are continually being reinterpreted in small ways or big ways and remade.

There's another sense in which, for customary international law, breaking the rules is a productive act—that is, breaking a rule of customary international law is the only way to change the rule.

JOHN TESSITORE: Let's talk about making law by breaking law, which is exactly what you are saying here, if I interpret you correctly.

Let me just ask as a final question, follow-up—it obviously tends to be the purview of the larger, more powerful states. But I'm wondering, does this process of lawmaking come at the expense of weaker states or do they have something to gain from this as well?

IAN HURD: We should be realistic enough from the beginning to admit that the power of the powerful states will always come at the expense of the weaker states, since that's what power does. The powerful have advantages—

JOHN TESSITORE: That's very Hobbesian now.

IAN HURD: Well, it wouldn't be fun to be powerful if it didn't mean that you were able to control things that you couldn't control without power.

Power runs through all of this, of course. And, of course, the powerful states have a capacity to generate international law that weaker states don't, although this may be circular, since one way to judge whether a state is powerful or not is to see how much influence it has in making new norms and laws.

But you're right. The idea that breaking law contributes to remaking law helps to see how power works in international relations, because it opens up one mechanism by which a strong actor can institutionalize rules that they believe are in their interest.

We can think here of the kind of work that John Ikenberry has done over many books about the institutional forms after 1945 in the international system. His argument is that these produced rules that were good for many states, and particularly good for the United States, as the designer of many of them.

So the powerful can make rules that serve their interest. Of course, that's not the end of the story. I think that's the beginning of the story.

What then matters is how others respond to those rules, how they behave, how the rules change. I think it's clear that there are moments when powerful states will make rules that turn out not to serve their interests, and that nobody is that good a predictor of how the future will be that you can really institutionalize rules that are good for you forever.

Powerful states can make new law by breaking existing law, but this can be done by any state, I would suggest. This is not to say that power is equalized. But you don't have to be a powerful state to remake the interpretive apparatus that you find around you.

When we think about how the rules of, let's say, the international whaling regime have been used, we can find many different interpretations of what the core of that regime means, depending on whether the state in question is looking to legitimate whale hunting or delegitimate it.

It's not the case that this is only done by the most powerful states. The opportunity to use international law is available to all states.

In fact, there is, I think, a sense in which you cannot act in international relations without invoking some set of international rules to justify your behavior, weak and strong states alike. And in doing that, you're remaking the rules. You're giving the world some new cases by which to understand how we should interpret the rules. That's going on all the time, as any country invokes international law.

JOHN TESSITORE: This has been splendid, Ian. I'm afraid that we have to stop here. But I'm sure that many of our listeners will want to continue this discussion, and we encourage them to do so. Particularly, we invite them to access Professor Hurd's article, "Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World," appearing in the Fall 2011 issue of Ethics & International Affairs.

Once again, we have been speaking with Professor Ian Hurd, associate professor of political science at Northwestern University.

Thank you, Ian. It has been a real pleasure speaking with you.

IAN HURD: Thank you, John. The pleasure's all mine.

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