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Is Illegality an obsolete concept in International Law

Written by: Parvathi Menon - LLB (Symbiosis Law College, Pune) LLM (London School of Economics)
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To go to war for an idea, if the war is aggressive, not defensive, is as criminal as to for to war for territory or revenue; for it is as little justifiable to force our ideas on other people, as to compel them to submit to our will in any other respect. But there assuredly are cases in which it is allowable to go to war, without having ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are.” - - John Stuart Mill, ‘A few words on non-intervention (1859) in JS Mill, Essays on Politics and Culture, New York, Garden City, 1963

“Politics is conceived as a process out of which a morality will emerge; that is to say, it is conceived as leading towards a form of social coexistence in which politics and morality along with it will alike be superseded.” - - Gramsci, Antonio, Selections from cultural writings. London (Lawrence & Wishart) 1985, 400

"If democracy is ever to be threatened, it will not be by revolutionary groups burning government offices and occupying the broadcasting and newspaper offices of the world. It will come from disenchantment, cynicism and despair caused by the realisation that the New World Order means we are all to be managed and not represented." - - Tony Benn, British Labour Party Member of Parliament

“All animals are equal, but some animals are more equal.” - - George Orwell, Animal Farm

The objective of this article is to analyse what the true connotation of the word ‘illegal’ is under international law, through the harangue around humanitarian interventions. Whether it strictly implies non-adherence to the UN charter or is in reality an abstract idea in harmonious co-existence with legality and morality- reducing it to a mere rhetoric, making them overlapping fields and consequently non-existential, is what I wish to probe into through this study. And if the latter holds true, then what does the ‘static’ character of the Charter around the dynamics of International law and customs entail? Who might be the authors of these customary creations and why they are given the reins to control international law are lofty issues which consequentially lead to “international law appear[ing] to be in big trouble by becoming a euphemism for “hegemonic contestation”- a technique of articulating political claims in terms of legal rights and duties”.[1]

I contend that though law cannot and must not rest on emotional sentiments, every attempt at preservation of legality has been clouded by hegemonic influences, be it in the form of non-execution of judicial decisions or the penalties imposed, or of simply turning one’s moral illegality into another’s moral legality. The morality and legality infused into International law today has become reduced to a set of moral claims, as there cannot exist international law which can be defended by moral arguments. They are both distinct and only one of them can exist on the same plane.

The attempt to merge them is what is creating the obliteration of illegality from International law, and consequently the law itself. In the advent of morality, an action can at best be immoral, but never illegal.

The cause that I wish to espouse is of the need to maintain legality distinct from the moralities as customs and practices that determine the course of international law, completely annuls much possibility of an act being tainted ‘illegitimate’, especially when committed by the ‘rogue states’, when with time, most State practices become the rule rather than the exception.[2]

In illustrating the predisposition, “when the States assembled in the general Europe Congress are in agreement regarding certain measures, such measures become obligatory for all the European States. Since such congresses were dominated by the European powers, they had a pre-eminent role in shaping the norms of international legality.”[3]Their overpowering presence in the international realm, being the more powerful states is explicable, but whether the creation of the UN charter was merely a pawn in their hands or an absolute noble intention is till date, questionable.

The new notion of humanitarianism in the light of Humanitarian interventions, which is a concept always looked at from both sides of the fence as being illegal (though morally) or otherwise, but with no substantive conclusion yet. Also, of the right to interfere, a term coined by the philosopher Jean Francois Revel in 1979, known to be the recognition of the right of one or many nations to violate the national sovereignty of another state, when a mandate has been granted by a supranational authority to its transition to the responsibility to interfere as an obligation which calls to all nation-states to provide assistance (at the request of the supranational authority?) to an amicable idea of consensual involvement which could do justice to ‘humanitarianism’ in its true sense of the word and its realisation possibilities has also been examined .[4]

But the predicament gets accentuated with the asymmetrical way in which the principles of humanitarian intervention have been invoked. In most cases, by not obliging to the treaty norms, under the pretext of an emerging customary rule, at other times by using the UN Charter as the medium in order to drift away from the existing norms and principles of international law. How rational is the notion of retroactive mandate, or the lack of it completely, to allow a blatant breach of sovereignty, in the name of the moral imperative: “we should not let people die.”?[5]

The idea of interventionism, especially when unilateral, has been met with a lot of reticence by legal scholars, owing to the impression of modern day colonialism that it has produced[6]. The crucial issue of dissent is “whether justification through international law can, and should be replaced by the unilateral, world-ordering politics of a self-appointed hegemon”.[7] While Chechen populations did not attract intervention, the Kosovars did, and that definitely tilted the balance towards colonial attitudes as opposed to moralistic tendencies. In the same vein, Uganda and DRC were ignored, but Iraq and Kosovo were acted upon. Where does that leave the principles of the so called international law? When action on Kosovo was deemed illegitimate by many, owing to the lack of Security Council authorization, the resolutions made in response to Iraqi action were considered ambiguous and led to interpretation favourable to the different countries.

Proper And Improper Laws

‘Positively’ Law?
“Society,” says Mr Austin, “formed by the intercourse of independent political societies, is the province of international law, or the law obtaining between nations.”[8] Austin describes the law of nations as a “set of opinions and sentiments and not ‘law’ properly so called”.

“Closely analogous to human laws of this second class[9] are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct. The law set by fashion; and the rules of this species constitute much of what is usually termed International law.”[10]

This forces us to ask, how does illegality emanate from that which has no legality?

As has been propounded by many Positivists, the distinction between law and morality is one which needs to be reflected on in greater depth. “The social reality that corresponds to the word ‘law’ is perceived to be really and simply the command of a sovereign, a rule laid down by a Judge, a prediction of the future incidence of state force, a pattern of official behaviour, etc.”[11] Though this may be a rather loose definitional fiat[12] of what law really is, international law does appear to fail to meet the legality threshold. Whether international law is a product of international incidents, judicial decisions, or varying points of view, the lacunae in the system might well have, as Kelsen puts it, “this whole system rest[ing] on an emotional preference for the ideal of sentiment over justice.”[13]

In meeting with the ‘legal’ connotation, the International Court of Justice, as the last bastion of impartiality, has delivered many a poignant judgment in order to resolve the differences between States, but in the background of its functioning, lay the hegemonic influences, thereby ridding it of the independent character that could provide International law the legitimacy that it desperately requires, to do justice to the term ‘law’ in its truest sense.[14] “Judicial creation” states a contemporary positivist Neil McCormick, “is ultimately rooted in the social conventions (describable in ‘is’[15]-propositions) of the institutions of which judges are [but] a part. Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behaviour of state officials.” [16]

Positivism today- is seen by many modern day positivists as a slow eroding concept where law and morality are merging in a realist trend[17]. Various critiques of positivism suggest that the term “positivist” has acquired a negative connotation, used to condemn a formalistic doctrine according to which law is always clear and however purport less, is to be rigorously applied by officials and obeyed by subjects. This theory does not find its embedment in positivism and is in any case false. Moreover, it has nothing to do with legal positivism, and is expressly rejected by all leading positivists. What I intend to establish through this paper is that even if laws stem from a natural moral cause, a distinct morality is used to manipulate and vitiate those very same laws in favour of one’s own advantageous position going to show that laws and morals are indeed two separate fields, where one is used to alter the other, only reiterating their distinction.

A befitting domestic analogy would be a case scenario where a rape victim’s father murders the rapist. Two recurring themes stem out of this act- prohibition of the violation of another person’s decency (moral theme), which leads to the concept of illegality of rape (legal theme). In turn, to kill someone (illegality) who raped your daughter (moral defense) effectively allows the rapist’s father to kill the man (illegality) who killed his son (moral defense), thereby unnecessarily intermingling the two spheres of relative morals and laws, causing people to take ‘law’ into their hands. “When a potentially violent police action was required to restore seriously violated human rights in one of the states that was a component in the federated world government, the action taken would have to be centrally authorized. It would be wrong for a powerful neighbour state to take the (international) law into its own hands.”[18]

An illegal act should remain thus, lest it procures an aura of ‘legality’ through social acceptance (and incorporation into customary international law) and moral rhetoric. The parallel that this has with the scenario of a humanitarian intervention lies in the fact that third parties intervene in the name of humanitarianism, though usurping their powers as ‘equal’ members of an international community comprising of sovereign states, in reality only responsible for the string of crimes their intervention brings. Who might intervene to prevent those crimes? The chain reaction that this could trigger off would be of a fatalistic character for the international community.[19]

“It is also related to the broad requirements of impartiality in the exercise of justice that any humanitarian intervention purports to serve. The more an intervention is removed from the partial interests of particular states, especially powerful ones, the more likely it is to approximate justice, and the more likely it is to be perceived as legitimate by the parties in conflict and by the international community.”[20]

Which is why the United Nations charter prescribes two circumstances when force can be used- for self-defence and under an action under Chapter VII. When courts respond to critical claims for moral change, as they have in desegregation decisions, we occasionally hear the riposte: “You cannot legislate morality”.[21] The worthy cause that is espoused arises only out of the anarchy that moral substantiations, as in the aforementioned case could attract.
The contested issues that arise with respect to International law are regarding how seemingly unjust, harsh and severe principles like those concerning an intervention into another’s territory can be invalidated- By violating them in rebellion or otherwise, or through hegemonic choices alone? When interventions are carried out by the hegemons themselves or led by a powerful member[22]- are their options the representation of what is ultimate and sacrosanct? Wouldn’t one person’s morality be another’s immorality? What standards can succinctly declare which option should prevail?

Law and morality appear distinctly different even today, as the positivists maintain.[23] In order to legitimize an illegal action under international law, morality is used as the one and only validation. If all laws were inherently based on a moral ground, emanating from a basic universal moral line of reasoning, the need to legitimize an action which is otherwise illegal, but for a new moral perspective, would never arise in the first place. The second point of contention is why in the light of the various interventions on humanitarian ground, a positive reason[24] is required today to substantiate the action. If indeterminacy has become the default position[25], where does international law find conviction to label an act illegal? As there exists no pertinent standard[26] against which this comparison between legality and illegality can be made, international law gets downgraded into an array of actions called law, in the shadow of morality, just but an action as dictated and decided by the great powers which ultimately get incorporated into customary international law through state practice, thus making illegality illusory. International law would rather be renamed international morality.

“A man living in a state of nature may impose an imperative law: since the man is in a state of nature, he cannot impose the law in the character of sovereign. Consequently, an imperative law set by a sovereign is not a positive law or a law strictly so called. But being imperative (and therefore proceeding from a determinate source), it amounts to a law in the proper signification of the term, although it is purely and simply only a rule of positive morality.”[27]

The standards laid down by the United Nations Charter are skirted around and manipulated, and in its living character is found the perfect ambiguity, that is desirable of most powerful nations to meet their personal ends[28], hence implying that there is no clarity of ‘role’ or ‘rule’ in International law. Whilst this is an excessively debated and discussed proposition, the is given impetus through this paper is the proposition that International law has indeed become a debacle in its endeavour to conveniently merge law and morality, thereby excluding the one potential technique that could maintain the concept of ‘illegality’ by imposition of penalty through the imposition of sanctions. Why this has criminalised only the smaller countries is of course yet another example of hegemonic redefinition.

endnotes
[1] This is an established issue and there has been much debate and literature about it. In this context, what I will attempt to focus on is – in the light of hegemonic redefinition, whether there is a concept of illegitimacy still prevalent? And if there is, does it entail any kind of sanction?
Martii Koskenniemi, ‘International law and hegemony- a reconfiguration’, Cambridge Review of International Affairs, Volume 17, No 2, July 2004, p 197
[2] At this juncture, I am aware and not disputing that States do act to their advantage, and that it is clearly a question of cost-benefit ratio, but in the bargain, what they are really doing, is obliterating the proposition called international law.
[3] Kolb, Robert, Note on Humanitarian Intervention. Affaires courantes et commentaries Current issues and comments, IRRC March 2003, Vol 85, N^ 849, pp119-134, at p 122
[4] See Jean Francois Bayart and Romain Bertrand. What Colonial legacy are we speaking of? http://www.diplomatie.gouv.fr/fr/IMG/pdf/0901_Bayard-Bertrand-AN.pdf;
See http://en.wikipedia.org/wiki/Humanitarian_intervention
[5] This idea is grounded in the Universal Declaration of Human Rights, 1948. For the defenders of humanitarian intervention, it is legitimate only when motivated by a massive violation of human rights and when it is put in motion by a supra national body, typically the United Nations Security Council.
[6] The quintessential hegemonic thrust in the Security Council, by the name “veto”.
[7] Habermas 2003, 706, as quoted in Supra note 1
[8]. Scott, James (Feb, 1905). Legal nature of international law, Columbia Law Review, Vol 5, No. 2 pp 124-152
[9] The second category being- Positive laws: that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence.
[10] Austin, John (1965), The province of jurisprudence determined and the uses of the study of jurisprudence at p 12
[11] The debate generated by the differences on the distinction between law and morality as quoted by Fuller in his response to Hart. At p 631
[12] See Fuller, Lon (1958). “Positivism and Fidelity to Law: a Reply to Professor Hart,” 71 Harvard Law Review 630.
[13] Ibid
[14] In Nicaragua v The United States, 1984 ICJ Reports 392, where it was decided by the ICJ that the USA had violated international law by supporting the Contra guerrillas in their war against the Nicaraguan government and by mining Nicaragua’s harbors. The United States had signed the treaty accepting the Court's decision as binding, but with the exception that the court would not have the power to hear cases based on multilateral treaty obligations unless it involved all parties to the treaty or United States specially agrees to jurisdiction. While the US did accepted the ICJ's compulsory jurisdiction in 1946, it withdrew its acceptance following the Court's judgment in 1984 that called on it to "cease and to refrain" from the unlawful use of force against Nicaragua, and that the US was in "in breach of its obligation under customary international law not to use force against another state" and ordered to pay reparations, though it never did.
[15] Bentham’s distinction between expositorial jurisprudence (the propounding of law as it is) and censorial jurisprudence (the calculation of the moral worth, of the law as it ought to be)
[16] See his Legal Reasoning and Legal Theory (1978) cited in Positivism Today edited by Stephen Guest.
[17] Realism, which focuses on “what happened” and “what can be made to happen”, avoids posing strictly normative questions such as “what should have happened” and “what should happen”. Thus it implies a merging of the present tangle of law and ethics, dismissing international ‘law’ and calls it an imperative to “prevent the system’s collapse into anarchy”. I am in fact in agreement of their view of this situation that the international law has descended to, but in doing so, I do not consider it incompatible or unperceivable to save the drowning ship, but maintaining the positivist theme of separating the two ideals.See Koskenniemi, Martin. The Place of Law in Collective Security, Michigan Journal of International Law, Vol. 17: 455, Winter 1996 at p 465
[18] C.A.J. Coady, The Ethics of Armed Humanitarian Intervention, Peaceworks, United States Institute of Peace, No. 45, at p 26
[19] See Cohn, Majorie (2002). NATO bombing of Kosovo: Humanitarian intervention or crime against humanity? International Journal for the Semiotics of Law 15, pp 79-106 at p 80
[20] Ibid
[21] Fletcher, George (1987). Law and Morality: A Kantian perspective, Columbia Law Review, Vol. 87, No. 3., pp 533-558 at p. 534.
[22] Lawyers and supporters of the intervention principle have been trying to find “plausible legal basis for this novel formation: collective security or unilateral action in (collective) self-defence- or exces de pouvoir?” See Koskenniemi, Martin. The Place of Law in Collective Security, Michigan Journal of International Law, Vol. 17: 455, Winter 1996 at p 461.
This debate has been proven inconsequential given most operations (Desert Storm and Turquoise) were either carried out by powerful members or led by one.
[23] See Austin, John (1965), The province of jurisprudence determined and the uses of the study of jurisprudence
[24] Ibid
[25] Dworkin, Ronald (1986). Indeterminacy and law, Harvard University Press, Positivism Today, Edited by Stephen Guest, University College London at p.1
[26] Ibid at 4
[27] Austin, John (1965), The province of jurisprudence determined and the uses of the study of jurisprudence at p 139
[28]. See Byers, Michael, Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’, Global Governance 10 (2004), 165-186

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