[Sociology] When Morality and the Law Collide

[scottishranger]

Author: gigagaia
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When Morality and the Law Collide

When Morality and the Law Collide
The Major Challenge Facing International Law in the 21st Century

Since the end of the 20th century, the bloodiest century in the history of mankind, and the dawn of a new millennium, the international legal system has been faced with many new questions and many new problems to address. There are many ambiguities surrounding these questions, for example the international legal system still has no working definition of terrorism. It also faces a need for reform in the face of questions of legitimacy, with some international monitoring bodies such as the UN Commission on Human Rights being made up of states with questionable human rights records, such as Libya, China and Zimbabwe. However, there is an even far more pressing concern facing the international legal system which lies at the very foundations of the international legal order. The United Nations and the framework it set up after the end of the second world war built up an extremely strong system of rights to sovereignty for states to prevent warfare between states. Its goal was, and still is, to “save succeed successive generations from the scourge of war.” However the United Nations also sought to set standards of human rights around the world through various forms of law and treaty. For many years during the cold war, these two different sets of principles seem to be consistent with each other: Sovereignty deals with relations between states, and human rights deals with internal relations involving states and their peoples. Most states did not seek to engage them together, and ideas such as humanitarian intervention were on the fringe of international relations. However, with the demise of the Cold War, which had maintained a balance between them, these two core UN principles have come into conflict with each other, and there have been attempts to justify violations of each principle by claiming the other as superior. Questions over the morality of sitting idly by while a state massacres a segment of its population have created a new, and difficult dialogue about the relationship respect human rights and sovereignty. Thus, reconciling the tension between state sovereignty and human rights is a massive and gravely important challenge for international law. However, given that this issue is highly controversial, it is doubtful that the problem will be resolved, at least in the near future.

The status of human rights is somewhat difficult to measure. While they are defined and enshrined in many treaties, including most notably the UN charter, there are no actual hard-law mechanisms for enforcing this law, such as the collective defense mechanisms in the UN charter. Furthermore, they are subordinated to notions of state sovereignty. But today, questions about human rights have occupied an ever-increasing part of international law. With an explosion of human rights treaties in the past two decades, and the end of the cold war framework which largely subordinated all other concerns to the ideas of state-relations and state-concerns, there arose an opportunity for human rights to dominate the international legal agenda to an extent previously not possible. This opportunity initially also allowed for more cooperation between security council members, and potentially more aggressive collective action to stop human rights violations. In sum the explosion of human rights onto the international agenda brought with it a potential for having a credible deterrence to the commission of terrible human rights crimes. But this potential seems not to have been realized, as the only body capable of authorizing such intervention, the security council, did not act to prevent several massive human rights crimes, such as those in Rwanda and Srebrenica. This paralysis leads to the obvious question, if the security council will not or cannot act, then who will? And if there is a clear actor willing to take on such a role, how can they overcome the strong bias in international law towards territorial and political sovereignty?
In international law up until the mid to late 1990s, and still to a large extent even now, the right of a state and its government to territorial and political sovereignty was held sacrosanct above all other principles in international law, and even “justice was not to be sought at the expense of peace.” According to the relevant sections in the UN charter, as well as key legal rulings such as the International Court of Justice’s ruling in Nicaragua vs. The United States, the use of force in international law beyond self-defense and security council authorization is clearly not permissible in any circumstance. The Nicaragua case’s ruling was especially important in this context, as it pointed to the fact that the prohibitions of use of force against sovereign states was a part of both treaty and customary law. Another legal point upholding sovereignty as sacrosanct is that most states, during the cold war, upheld the importance of the prohibition of force over that of human rights. Simply put, up until 1999, in both treaty and customary practice, state sovereignty was one of the most sacred concepts of international law and was not to be violated.


However in 1999, the NATO intervention in Kosovo presented the potential for a fundamental change in the nature of international law. When it seemed apparent it would not get authorization from the security council for military action in Kosovo, NATO acted outside of the UN and conducted air strikes against Serbian positions in an effort to halt a supposed campaign of ethnic cleansing. There were three legally unique aspects about this case. First of all, it was the first time that an armed intervention has resembled a humanitarian intervention in more than just name. The second interesting aspect, was that NATO claimed that it was a humanitarian intervention, and argued it had a legal right to act based on a customary right within international law for states to conduct humanitarian interventions. The final, and likely the most interesting aspect, was that after the commencement of NATO action, the security council issued resolution 1244 (1999), which welcomed the results of NATO action, but did not condone its de facto breach of law. While it has been argued that the fact the security council did not officially support the action, nor endorsed a censure motion, had no bearing on the legality of the action, it can actually be pointed to as a change in the customary law of states surrounding non-sanctioned humanitarian intervention. Another interesting development was the assertion by the UN Secretary-General in 1999, following the action in Kosovo, that sovereignty was becoming redefined and that states were seen to be more as servants of their populations than vise-versa. This has led to even more literature, such as The Responsibility to Protect put forth by the International Committee on Intervention and State Sovereignty (ICISS), which argues that a state’s sovereignty is limited by an internal consent of the governed, and by external obligations undertaken when committing to the United Nations and the protections it offers.

And yet, while there seems to be an emerging state practice justifying humanitarian intervention, there is still a clear dominance of sovereignty in the international legal order. While norms for humanitarian intervention seem to be “emerging,” that does not mean that they have a place in international law alongside hard-laws such as the UN charter, which explicitly condemns violence except in self-defense and as authorized by the security council. It is doubtful if states would even accept such an emerging law, as states are always loathe to lose any amount of sovereignty. Furthermore, the legal jurisprudence still supports laws, both soft and hard, that generally restrict the use of force to all but the most extreme and limited circumstances. Since there are no hard laws explicitly authorizing the use of force in humanitarian circumstances without prior approval of the Security Council, and there have been no true test cases involving such “emerging norms,” the status quo must persist. When states break the laws regarding force in a humanitarian action, and they prove it is a new customary law, only then will it become a legal act.

This discourse, then, points to the fact that the tension that exists inherently between human rights and sovereignty is one of a moral nature, and not a legal one. While on the one hand, if a state violates the sovereignty of another to protect against injustice, it undermines world order. If it always honors territorial boundaries, the state will be complicit with some human rights crimes. Furthermore, to leave all questions of intervention to the security council and its system of vetoes, is to engage in political paralysis.

The problem that faces international law, then, is how to deal with this “inherent tension” that exists between the principles of non-intervention and state sovereignty on the one hand, and human rights, with all of its humanitarian concerns and needs for implementation and sometimes protection on the other. What makes addressing this clash difficult is simply politics. In order to formally legitimize humanitarian intervention would in all likelihood require amending the UN charter, given its enormous role in both customary and treaty law. In order to do this, UN member states would have to agree to a massive reform of the ideas of territorial integrity and rights to sovereignty. Many of these states are simply unlikely to give up sovereignty for many reasons stemming from states’ jealous protection of their rights in international law. Another problem is that of security council action. While the security council could develop a plan of action to deal with human rights violations, it is highly unlikely it will do so, as action within the body is frequently confounded by the veto system. While many states did agree to the ICISS recommendations regarding the implementation of a responsibility to protect human rights in the 2005 World Summit Outcome Document, the implementation is vague at best and the necessary organ for action, the security council, is still mired in politics and paralyzed by vetoes. Unfortunately, then, it is unlikely that in the near future the international system will be able to devise a clear way to reconcile the conflict between the need to protect human rights and the imperatives of maintaining sovereignty. The only way that change seems possible is through an evolution of customary law through state action, international acceptance and eventually judicial approval, that eventually supersedes, or becomes a corollary to, the UN charter’s rules governing the use of force.

While international law is faced with a series of new and difficult challenges ahead, it seems that, given the state of the international political system, its major challenge will be to attempt to reconcile the ever-increasing tension between the guarantees of human rights and sovereignty. The protection of human rights may sometimes necessitate violations of sovereignty, yet international law and order necessitates an absolute protection of sovereignty. This tension is caused by a conflict of morality and the law: on the one hand, it is absolutely essential to uphold the legal system to ensure its effectiveness. Yet on the other hand, morality dictates that such laws are far more meaningless than a massive loss of human life or culture. In order to reconcile this problem, change will have to come from within the institutions from which international law is drawn. And yet it seems, for the time being, that the international status quo will persist because of a reluctance to change. The answer is not to simply change perceptions of the law to suit and justify the circumstance, but to change the law to allow the circumstance. Unfortunately for the many that may yet suffer at the hands of their own government and the states that suffer wrongful interventions, the primary actors in the international legal system, states, seem unwilling to make this change. Thus, overcoming this reluctance to modify the status quo in human rights law and jus ad bellum is possibly the most difficult challenge for international law in the 21st century.


List of Works Cited:

Arned, Anthony C. & Beck, R.J. International Law & The Use of Force Routledge, New York NY (1993)

Charney, Jonathan I. “Anticipatory Humanitarian Intervention in Kosovo” in The American Journal of International Law Vol. 93 No. 4 (Oct 1999) pp. 834-841

Henkin, Louis “Kosovo and the Law of ‘Humanitarian Intervention’” in The American Journal of International Law Vol. 93 No. 4 (Oct. 1999) pp. 824-828

Shaw, Malcolm N. International Law: Fifth Edition Cambridge University Press, Cambridge UK, (2003)

Slader, N. & Nardin, T. “Non-Intervention and Human Rights” in The Journal of Politics Vol. 48 No. 1 (Feb 1986) pp. 86-96

Thakur, Ramesh “Security in the New Millennium” in Cooper, Andrew F., English, J. & Thakur, R. ed. Enhancing Global Governance: Towards a New Diplomacy? pp. 268-286, United Nations University Press, Tokyo Japan (2002)

Weiss, T.G. “Rethinking Humanitarian Intervention: Some Lessons” in Journal of Peace Research Vol. 38 No. 4 (Jul. 2001) pp. 419-428