Here is an admission that democratist interventionism is based on an ideological fantasy and has no legal basis at all. It is revealing that Kagan writes an entire article about the “autocracies” and seems not to notice the irony that they, not the democratic West, are on the side of international law as it actually exists. If democratists were right that only other kinds of regimes are the revisionist, aggressive ones, this might be less worrisome, but in a world where democracies believe they have a higher calling to violate international law in the name of “rights” the preservation of international order necessarily falls to authoritarian and authoritarian-populist states. (I would still say that Russian is not undemocratic, but it is illiberal because it is democratic, but authoritarian populist will do for now.) This is a very undesirable and potentially explosive arrangement. On one side, you have an ideologically-driven mania that says sovereignty and international law can be compromised whenever certain powers feel (and feel is the right verb here) it necessary to protect “rights,” and on the other hand there are states that now have every incentive not to reform their political systems, because reform has been inextricably associated with foreign subversion and attempts at isolation and encirclement, and have absolutely no incentive to help the West isolate pariah regimes around the world.
First of all, I'm surprised he calls the Kagan quote "refreshingly straightforward:" virtually everyone who writes on humanitarian intervention says exactly what Kagan does: the law in no way delimits morality.
Second, I assume that when Larison refers to 'international law as it actually exists' he means something like 'the United Nations Charter,' and not international law in a broader sense, including, for example, Customary International Law. The first problem any conservative should have with positive international law is the shallowness of the tradition from which it springs. The UN Charter appeared, fully formed, in 1945; there was not much precedent for it when it was created, and there was much criticized about it at the time (Hersch Lauterpacht (who edited the 8th edition of Oppenheim's, among other signal accomplishments), and J.L. Brierly both wrote very critically of the Charter after it was passed). It is a perfect example of something made, not inherited, and conservatives ought to retain a position of skepticism that it can do what it ought to do (keeping in mind that there is no consensus on 'what it ought to do,' in the way we might speak of domestic constitutions).
Third, it's a standard trope in international law thinking that the conflict Larison identifies, between the provisions of the Charter which venerate sovereignty and non-intervention; those portions of the Charter that envision a collective security system (W. Michael Reisman was written interesting, though flawed, work on what should happen given that the collective security system never came into being); and the subsequent adoptions of, to name just the first two, the Universal Declaration of Human Rights and the Convention on Genocide. So Larison is wrong to say:
If democratists were right that only other kinds of regimes are the revisionist, aggressive ones, this might be less worrisome, but in a world where democracies believe they have a higher calling to violate international law in the name of “rights” the preservation of international order necessarily falls to authoritarian and authoritarian-populist states.
If the implication is to be that the authoritarian states have international law on their side, and the democracies have only an act of will. There is a genuine legal question of how these provisions are to be read against each other; each side can point to duly enacted pieces of international law and ask legitimate questions about how it is to be implemented. I would recommend, on the legal intricacies of these questions, the section in the 2005 edition of Fernando Tesón's Humanitarian Intervention on the international law reaction to Kosovo, Michael Byers' essay in the J.L. Holzgrefe-Robert Keohane edited volume (which considers possible means by which unilateral humanitarian intervention can become licit under CIL), and Allen Buchanan's "From Nuremberg to Kosovo."
On Poulos' reply: the emphasis on feeling is rightly placed: that's the weakness of, e.g., Samantha Power's book, though her pitch of moral indignation is exactly correct (Philip Gourevitch's book on Rwanda has something of the same weakness)--the result is insufficient attention to politics; and neoconservative (or liberal internationalist) politics more generally are quite compatible with practical reason. But that practical reason (and the allied portions of international law which would go undefended but for 'illegal' action) may sometimes advise action; it seems to me that one might engage in the process of reasoning he suggests and nevertheless conclude that we should have bombed Kosovo.
One other note: Poulos usefully notes the distinction in modern international law between aggressive and defensive war: "First, instead, notice how an aggressive war stops being aggressive because it is really only defending principles. Query how it is we're supposed to determine whether or not a certain principle needs defending." Anthony Coates has a provocative essay in the NOMOS on Humanitarian Intervention suggesting that there is nothing essential in the aggressive-v.-defensive war opposition:
The traditional concept of just cause is broader and more critical than its modern counterpart. The simple equation, in much contemporary thinking, of the just war with a war of self-defense and the unjust war with a war of aggression reflects the dominance of the states-system with its twin principles of sovereignty and nonintervention. From a traditional viewpoint, the equation begs too many of the fundamental moral questions about war. The aggressor-defender distinction is understood too literally to be morally illuminating. In that restricted, nonmoral sense, it is of little use as a means of distinguishing just from unjust war. Without reference to some notion of justice, the distinction is ethically unproductive.
I don't believe any of these arguments settle the question. But it is worth remembering that there is an intellectually serious tradition, going back very far indeed, to which the interventionist can appeal, and such an appeal does not require failing to take the law seriously. It's just that the law no more settles the question than does an appeal to morality.
No comments:
Post a Comment