Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World

Abstract

The legality of humanitarian intervention is uncertain: it appears to violate the UN Charter on the use of force but recent practice by states suggests legal innovations which might permit it. Most discussions of the topic seek to establish which view is correct, leading to a debate between legality and illegality that rests on competing interpretations of historical events and competing philosophies of international law. These are irreconcilable, and the result is that humanitarian intervention can be simultaneously legal and illegal depending on one’s interpretive choices about international law. I examine what it means for international law that such a fundamental question as the legality of war cannot be resolved. This has implications for the foreign-policy decisions of states and also for how we think about the role and power of international law more broadly. It highlights the political application of international law, and argues against both the ‘compliance model’ of law that is popular in Political Science and the ‘argumentative model’ of law.

Keywords: humanitarian intervention, international law, use of force, responsibility to protect