Douglas Feith and the Law of the Jungle

So Douglas Feith doesn’t mind setting aside sovereignty at times. Other countries’ sovereignty, that is. And when the U.S. decides it should be set aside, without having to resort to U.N. approval.

This is not internationalism, it’s just hegemony. By saying that Feith and the international law community may not have that many differences, Julian’s post makes a mole-hill out of a mountain.

Feith walks an impossibly fine line: he speaks of the “U.S. devotion to a well-ordered world of sovereign states” but also of the need to set aside sovereignty when there is a risk to international security. The problem is who gets to decide that a risk warranting such an extreme act exists.

Since sovereignty is at the core of the international system, the system is designed to protect state sovereignty and place the burden on those who wish to pierce it. Thus, while international law may have much to say about human rights, it is still reticent on the topic of military intervention in order to protect human rights. Such military excursions, riding roughshod over a state’s sovereignty, must be approved by the U.N. Security Council. That is the mechanism drawn up by the U.S. at the founding of the U.N. and it is still the consensus of the international community but it is not what Feith seemingly envisions as part of the new rules.

Perhaps Feith doesn’t want the U.S. to be burdened by having to get Security Council approval. While there may be extreme examples that may warrant intervening without U.N. authorization, he hasn’t shown that this has been a problem in the post-Cold War world (the Iraq example is not persuasive in this regards). Should we toss out the U.S. designed U.N. mechanism for Feith’s do-it-yourself approach in deciding when sovereignty should be set aside?

When assessing a proposed rule, it is usually a good idea to consider what would happen if someone else acts on the basis of this new rule. China, perhaps fearful of new Taiwanese military acquisitions upsetting the distribution of power in the Pacific, uses this new “rule of the road” to pre-emptively strike Taiwan (which to them isn’t even really a state anyway). India gets worried over Pakistani proliferation and, citing this new rule of the road, decides an immediate bombing campaign is in order. Perhaps Iran decides Israel’s nuclear capability, coupled with the intransigent “Palestinian Question” destabilizes the region too much. Pick a scenario. Under Feith’s rule, any of these actions could be justifiable, if not legal.

One may argue that, no, Feith meant only “good” states (human rights respecting, democratic) could employ this rule against “evil” states (terrorist supporting, rights abusing). But of course the problem is that one man’s terrorist is another man’s freedom fighter and each of these states sees itself as good and the other as evil. And, in Feith’s formulation, there is no recourse to the decision of the international community as a whole; there is no external check. (A coalition of the willing is no check.) In a do-it-yourself system everyone can claim to be good and argue that the other is evil and just do it.

The problem with Feith’s rule is that it fosters what he fears: a world of aggression and instability. Arguing that the U.S. can set aside another state’s sovereignty at will (regardless as to whether it has some allies on board) opens a Pandora’s Box for other states claiming the same right. This is not a rule of the road, it is the law of the jungle.

The U.N. isn’t perfect, but it’s definitely better than that.