Comment on Fernando Teson's article 'Defending International Law'

by Elias Davidsson

Source: http://law.ubalt.edu/asil/davidsson.html ASIL Centennial Discussion on a Just World Under Law: Why Obey International Law? 

“Why Obey International Law”?, which is the subject of this forum, cannot be answered without deciding what is “international law”, and in particular what core values underpin this legal category

In his article, Fernando Teson, argues that human values override traditional public international law (which is a system regulating interactions between states). In his own words:

A better conception of international law sees it as serving the people on this globe, not their governments. Legal rules and processes should be interpreted in the light of human values, not state values

One might, in this context, add in support of this assertion, that the Charter of the United Nations, often regarded as the precursor of an international constitution, does not refer at all to "state values". The word “state” does not appear even in the Preamble and in Article One which lists the Purposes and Principles of the Charter. The Preamble of the UN Charter, which refers to the underlying values of the United Nations Organisation, mentions the stakeholders of the Organisation as “succeeding generations”, “mankind”, “human person”, “men and women” and “nations”. States are clearly not regarded as primary stakeholders of the United Nations.

On this base alone one is permitted to argue that the rights and prerogatives of States are derivatives of overriding values, such as those of individuals, peoples and nations. It can also be argued that the legitimacy of a collective entity such as state, people or nation rests on the free will of the individuals composing this entity.Collective rights are thus derived from individual rights. They are not an independent category of rights.

On the base of this conception of international law - in my opinion justified - the author (Fernando Teson) attempts to demonstrate that use of the force in support of the protection of human values (labelled “humanitarian intervention”) is justified.

He therefore writes in the introduction of his article: “The war against Iraq was a great victory for human rights”. Leaving aside the sweeping nature of this assertion, having been informed that perhaps 100,000 civilians may have died in Iraq as a result of the US bombing, invasion and occupation, this comment will address the more general question of “humanitarian intervention” that the author is defending.

On the face of it, the international community should intervene where there is evidence of gross violations of human values, such as crimes against humanity or genocide. The United Nations were established - facially - to serve mankind rather than state reason. States being what they are - bureaucratic entities who serve primarily the vested interests of their own elites - the concept of international community requires to be examined more closely.

There are, in fact, a host of questions that must be asked before proposing the establishment of an international legal regime of humanitarian intervention. Here are a sample of these questions:

Who is to decide whom to “liberate” and under what circumstances to intervene?

How is it possible to ensure that “intervention” will not lead to the rule or hegemony of the “intervenor”?

What specific “human values” are to be protected by intervention?

Have the people to be “liberated” been consulted ?

Can the intervenor be trusted to be moved by humanitarian, altruistic, concerns?

These questions have not been addressed by the author. In this comment, I will focus on the last question.

I propose the following axiom as one of the constraints against abusive humanitarian interventions:

A state or an international organisation which does not place the promotion of human dignity and human values at the top of its priorities, cannot be trusted to engage in a humanitarian intervention.

If this axiom is accepted, it follows that only states and international organisations who have demonstrated that they place human dignity and human values at the top of their priorities, including in their foreign policies, possess the moral credentials to intervene in a third state for the protection of human dignity and human values.

I do not believe that there exists evidence that states place global human dignity and human values above their own interests. The same applies to international organisations, where states simply negotiate their interests and collude, if necessary behind closed doors, in utter disregard to human values. The above claims can be verified empirically. Here is a small sample of observations:

1. The United Nations Security Council has imposed - with the acquiescence of all its members - a severe and deadly regime of economic sanctions on the Iraqi people. According to UNICEF, child mortality increased more than twofold during the sanctions years; excess deaths during these years numbered more than 500,000 children under the age of five. No one disputes that these deaths were the result of human agency. This crime - for there is no other word for such human agency - is unprecedented. Yet no UN member state has demanded an official inquiry to determine the legal and criminal responsibilities for causing such a Holocaust. Nor have UN member states proposed that the surviving, innocent, victims of these UN-imposed sanctions, be provided with effective compensation for the harm they suffered.
2. Over one billion people live in wretched poverty around the world. The Universal Declaration of Human Rights stipulates that every person has the right to an adequate standard of living. Yet, the community of states, and particularly those claiming to be guided by human rights and who possess adequate financial means, have miserably failed to address this global scourge. Their concern for human values ends where such values clash with corporate profits.
3. Astronomical funds are spent by the most powerful states - who claim a right to humanitarian intervention - to develop and acquire tools of death. The United States alone spend more on arms and weaponry than all other states combined. Merely a fraction of such funds could ensure a life in dignity to millions of human beings and save millions of children every year from preventable death
4. The right to food, to clean water, to basic education, to a safe environment, to basic medical care and to an adequate standard of living, are denied to a substantial portion of humankind. Yet, states which claim to be moved by human rights concerns in support of interventions, strongly oppose the establishment of an international legal protection regime against infringements of these fundamental rights, or refuse even to recognize the legal right of human beings to clean water, food and medical care (a right, incidentally, legally recognized to pet animals in the United States)
5. The main proponent and practitioner of intervention in other states' affairs, the U.S. Government, is actually curtailing human rights within its own jurisdiction under the contrived justification of the “war on terrorism” and routinely engages in gross human rights violations around the world, including torture, extra-judicial assassinations, kidnapping and indiscriminate attacks on civilians and civilian infrastructure.
6. The Permanent Five of the Security Council, who possess the sacred duty under the Charter to maintain and ensure international peace and security, are, however, the main merchants of tools of death. They share among themselves more than 80 percent of global arms exports and profit thereby from armed conflicts. Their foreign ministries act often as official promoters for their arms industries. Their possession and deployment of nuclear weapons constitutes a continuous threat to human values, namely the very survival of humanity.

The brief listing demonstrates that UN member states, and particularly those who claim for themselves the right to humanitarian intervention, cannot presently be presumed to act for altruistic reasons when acting in the international area. The term “humanitarian intervention”, currently, is little more than a euphemism for aggression, a crime under international law.

Does the above mean that “humanitarian intervention” should be relegated to the end of times and that nations should be left alone to be butchered by thugs? The answer is no. The road for an international regime of humanitarian intervention passes through a number of preliminary steps.

Those genuinely concerned by gross human rights violations in various countries should endorse such steps. These include:

1. The formal acceptance of UN member states of their legal obligation and that of all international organizations to take full account of the effects of their international policies on the enjoyment of human rights and their obligation to repress acts and policies by legal persons under their jurisdiction which have the intent or foreseeable effect to curtail or undermine the enjoyment of human rights in other countries.
2. The establishment of international judicial mechanisms, open to victims of human rights violations caused by third states, corporations and international organisations, which are empowered to adjudicate in such cases, award remedies to victims and enforce their rulings.
3. The inclusion of the crime of economic oppression as a crime against humanity under the Rome Statute of the International Criminal Court and the adherence of all states to the Rome Statute.
4. The amendment of the UN Charter to the effect of designating the promotion, respect and protection of human rights and fundamental freedoms, including civil, political, economic, social and cultural rights, as the major purpose of the United Nations Organization

Response by the author, Fernando Teson:

I appreciate Elias Davidsson comment on my piece, and I'm glad we agree on the general validity of the doctrine of humanitarian intervention. I have elsewhere offered a full defense of the war in Iraq as humanitarian intervention, (http://www.carnegiecouncil.org/viewMedia.php/prmID/5190) so here I will confine myself to one point in reply.

The standard proposed by Davidsson is too stringent, because no government places human rights at the top of its international agenda, and that's the way it should be, since democratic governments owe a fiduciary duty to its citizens to protect their security. As the world stands now, the U.S. is as good as it gets in terms of defending human rights. Maybe Norway or Belgium are more “pure” but they are unwilling or unable to fight for freedom. The war in Iraq is waged against the most virulent form of Islamofascism, against people who hate democracy, hate human rights, hate the West, and are willing to destroy it (as they have abundantly shown). If fighting them is not a war for human rights, I don't know what is