Anne Orford on the Security Council and Libya

by Kevin Jon Heller

My colleague Anne Orford has a fascinating contribution today to the official blog of the London Review of Books questioning the universality of the supposedly universal international law that underlies the Security Council’s authorization of military action in Libya.  Here is a taste:

In 1954, Carl Schmitt bemoaned the destruction of European international law in the 20th century. According to Schmitt, European international law had depended for its meaning on the recognition that ‘European soil or soil equivalent to it had a different status in international law from that of uncivilised or non-European peoples’. Once it had been transformed into ‘a universal international law lacking any distinctions’, it had ceased to be meaningful. Yet only two years later, the Suez intervention marked the emergence of a form of international rule premised on new distinctions, a response to the revolutions that swept the Arab world during the 1950s and 1960s.

Then, as now, young leaders were fired by dreams of pan-Arabic solidarity, by the desire to end oppressive and exploitative rule, and by hopes for a better future. Yet they were met with cynical disbelief, mockery and sullen hostility on the part of Western leaders. In Egypt, Libya, the Congo and many other states throughout the Middle East and Africa, the hopes vested in independence were destroyed by an alliance between local elites who gradually came to accept that their survival depended on powerful foreign sponsors, and a Western political and business leadership determined to ensure that independence did not deny them access to the resources of the decolonised world.

If today’s Western leadership is really ready, in the words of William Hague, to support the people of the Middle East in their ‘aspirations for a better future’, it will need to do more than use international law to target its enemies while protecting its friends. In rejecting their authoritarian leaders, the current wave of Arab revolutionaries is also rejecting the international system that has profited from their existence. As the US declares yet again that Israel has the right to defend itself against terrorists while bombs rain down on Libya, as protesters continue to be killed in Bahrain, Syria, Yemen and Iraq, and as the numbers of people detained continue to grow, the idea that Nato is working to support the freedom fighters of this Arab spring rings increasingly hollow. The bombing of Libya in the name of revolution may be legal, but the international law that authorises such action has surely lost its claim to be universal.

Anne recently published a book entitled “International Authority and the Responsibility to Protect” (Cambridge 2011), which can perhaps be best described as a post-colonial critique of R2P.  Both the LRB post and the book are must-reads for anyone interested in the subject.

http://opiniojuris.org/2011/03/30/anne-orford-on-the-security-council-and-libya/

4 Responses

  1. Response…
    Nice rhetoric, but I do not suspect that the United Nations Charter (with articles 1(2)-(3), 39, 42, 55) has been abandoned.  If anything, there seems to be a local affirmation and demand for human rights, including human dignity, and democratic values associated with the right of all peoples to political self-determination.

  2. I demur a bit because whatever the situation, whenever I see a reference to Total War Carl Schmitt, a Nazi sting goes up my spine.  There is a special place in hell for him and what he wrote.
    Best,
    Ben

  3. I agree with Jordan and Benjamin Davis. This doesn’t actually strike me as a must-read on R2P, though, other than for the galleries.

    I agree with Benjamin Davis. I find her attempt (or what I take to be her attempt) at implying that the dominant ‘discourse’ or practice in international law remains that espoused by Carl Schmitt quite distateful, let alone very silly.

    This sentence, in particular, is a candidate for overreach of the year, to date:
    In rejecting their authoritarian leaders, the current wave of Arab revolutionaries is also rejecting the international system that has profited from their existence.
    Really?? The Libyan rebels who chanted ‘Sarkozy’ were rejecting what, exactly? If by ‘international system’ she means the UN, well that may be! But if by ‘international system’ she means international law and the ideals of universal human rights and global free movement and trade, well, I for one will wait for slightly more tangible signs of rejection.

  4. What happened to the edit function? Quite handy when one accidentally repeats oneself :(

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