Don’t evade ‘em, invade ‘em!

by Tony D'Amato

I didn’t intend to sound disparaging about humanitarian intervention, but when the above title occurred to me I just couldn’t resist using it. Come to think of it, Howard Cosell would have been pleased; the title “tells it like it is.”

The international legality of humanitarian intervention is on my mind these days because I’m trying to scribble out a Foreword to the third edition of Fernando Teson’s book of that title (the “humanitarian” title, that is, not the “invade ‘em” title).

A warm and enthusiastic Fernando Teson burst upon my scene at Northwestern Law School in 1982. He had served four years in the Argentine diplomatic corps and also had been an associate professor of international law at the University of Buenos Aires. We had agreed by letter that I would supervise his S.J.D. dissertation. So naturally one of the first things we discussed is what he should write about. He said that, given his experience in diplomacy, he might like to write a book on the privileges and immunities of diplomats. I said something like, “Gee, that’s great! The public is just clamoring to find out a lot more about the privileges and immunities of diplomats.” “So what would you suggest?” he said, deftly kicking the ball back to my side of the field. “Let me think about it for a day or so,” I replied.

I was stalling. I knew of the perfect topic for Fernando, but it was something that I had vague plans to write up myself. Nevertheless, when we had our next meeting, I said, “How about humanitarian intervention?” Perhaps as I said it I harbored the faint hope that he would turn it down. To the contrary, the idea for him was love at first sight.

His dissertation was so good that when it was published by Transnational Publishers, Inc., it came to define the field of humanitarian intervention in international law. Early evidence of this was the fact that the establishment folks in and around the American Society of International Law seemed to have taken a vow of silence about Fernando’s book. As late as 1991, a published symposium on Right versus Might in international law, featuring such luminaries as Louis Henkin, Stanley Hoffman, Jeane J. Kirkpatrick, and David J. Scheffer, examined the idea of humanitarian intervention from many angles but never once referred to Fernando’s work, not even in the “suggested readings” in the back of their book. Why indeed should they let an outsider like Fernando Teson “intervene” into the scholarly world over which they reigned supreme?

Without them, or maybe despite them, the book has thrived and taken on a life of its own in both political and legal global studies. During the two years he worked on his project at Northwestern, Fernando and I were in complete accord that if the morality of humanitarian intervention weren’t right, then its legality one way or the other would be of distinctly secondary interest.

Fernando’s conviction that humanitarian intervention is morally privileged if not required has coalesced over the years since 1982 into three postulates that I can pre-quote from his third edition:

(1) Governments are, internationally and domestically, mere agents
of the people. Consequently, their international rights derive from
the rights and interests of the individuals who inhabit and constitute
the state.

(2) Tyrannical governments forfeit the protection afforded them by
international law.

(3) The fact that all persons have rights entails the following
consequences for foreign policy . Governments have:

(a) The obligation to respect human rights at home and abroad;

(b) The obligation to promote respect for human rights globally;

(c) The prima facie obligation to rescue victims of tyranny or
anarchy, if they can do so at a reasonable cost to themselves.
This obligation analytically entails the permission to rescue
those victims—the right of humanitarian intervention.

If any of you who are reading this blog are teachers of international law, allow me to suggest that early in the course you distribute the above three revolutionary postulates to your students or display them in Power Point. Let your class unpack them, deconstruct them, examine them from every angle.

Agree with him or not, Fernando Teson has staked out a position that can no longer be ignored by anyone—not even by the self-anointed guardians of public international law.

http://opiniojuris.org/2005/08/08/don%e2%80%99t-evade-%e2%80%98em-invade-%e2%80%98em/

3 Responses

  1. Prof. D’Amato,

    With regards to Professor Teson’s three postulates, who decides whether they have been satisfied? The Security Council? The General Assembly? Regional organizations like NATO? Perhaps this is addressed in Professor Teson’s book, which I have not yet read.

    My concern is that, if states themselves are the final arbiters of these criteria for humanitarian intervention, all sorts of mischief could ensue. For example, Vladimir Putin could argue that he and Boris Yeltsin had a prima facie obligation to “rescue” the Chechen people from Shamil Baseyev and other Chechen rebel leaders.

  2. I don’t think you have to read the entire book as the answer to your question is in the three postulates themselves. The postulates are a moral precondition upon the actions of states. Obviously the moral question cannot be left to the states, any more than the moral question about murder can be left to the killer.

    In short, it is not the state that passes judgment, it is YOU.

    After all, Yuval Rubinstein, whose judgment do you respect? Your own, I hope.

  3. I thank Tony D’Amato for his generous comments about my work and the genesis of my book, Humanitarian Intervention. I have always regarded him, in the international law field, as the most original mind of his generation. But lest this be turned into a mutual admiration society, let me comment on the relationaship between his concern with nuclear proliferation and my concern with humanitarian intervention. An eventual attack against North Korea to destroy its WMDs, and an intervention, say, in Darfur, to save populations threatend with genocide are both justified by the SAME principle: the need to avert a humanitarian catastrophe. Force, any force, can only be justified as a defense of life or liberty. It is a mistake to think that self-defense has one rationale, and humanitarian intervention a different rationale. They are ethically the same.

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