JURIST Contributing Editor
Michael Kelly of Creighton University School of Law says that Vladimir Putin's insistence on the illegality of using force abroad without UN authorization may be technically correct, but it irresponsibly undercuts new interpretations of international law allowing humanitarian intervention even in the face of Security Council deadlock...
Russian President Vladimir Putin chastised President Bush in a speech at the 43rd annual Munich Conference on Security Policy on Feb. 10 for America's illegal and unilateral use of force outside the parameters of the United Nations. Specifically targeting Bush's revitalization of the old preventive war doctrine (used most recently to invade Iraq), Putin noted that even with the backing of NATO or the EU, international law prohibits use of military force without the backing of the Security Council, over which Russia wields a veto. President Putin technically has a point on the merits. The U.N. Charter makes no room legally for operating outside its provisions with respect to military action absent an invocation of Article 51's self-defense provisions, which require an armed attack to trigger a return military response. Thus, from the standpoint of the Charter, America's 2001 invasion of Afghanistan was legal while its 2003 invasion of Iraq was not. Secretary-General Kofi Annan noted that distinction on several occassions.
However, President Putin misses the point, probably intentionally, on the current state of international law with respect to unauthorized humanitarian intervention. Kosovo was a major test case in this regard. During the ethnic cleansing of that province by Serbian leader Slobodan Milosevic in 1999, the U.S., Britain and France attempted to move the Security Council to intervene. Russia and China balked, aware that such precedent for allowing intervention by foreign powers in a state's "internal affairs" could be turned back on them and their brutal repression of Chechens in Russia and Tibetans and Muslims in China. In the face of a frozen Security Council and a mounting humanitarian disaster, NATO undertook round-the-clock bombing of Serb ground forces and targets within Serbia proper until Milosevic relented and recalled his forces. NATO then managed the return of refugees to Kosovo, which project later came under the mantle of the United Nations. Secretary-General Annan recognized this as a newly emerging customary norm.
President Putin is seizing the opportunity to condemn American unilateralism around the world, which the vast majority of states have already condemned (along with President Bush's shaky legal theory on preventive war) to advance his own agenda of shoring up the notion that states remain masters of what goes on within their borders. While it remains true that complete sovereignty over one's territory is the rule rather than the exception of the state-centric system of international law, there are exceptions. Even 19th Century scholars such as Woolsey recognized that humanitarian intervention could be undertaken by foreign powers against the will of the state being interfered with if the gravity of humanitarian concerns were great enough, citing the 1827 intervention by Britain, France and Russia against the Ottoman Turks on behalf of the beleaguered Greeks. Needless to say, Westphalian sovereignty prerogatives were much more muscular back then than today.
The Russian leader also assailed any further expansion of NATO eastward toward his country as an unnecessarily threatening move, and condemned the extension of a U.S.-backed anti-ballistic missile shield over NATO territory in Europe. From the perspective of Moscow, blunting the ability of military alliances like NATO to intervene militarily around the world without U.N. backing is becoming more personal the closer that alliance creeps toward the Russian border. However, pulling down the supports underpinning a newly useful theory of humanitarian intervention for completely self-interested reasons is unbecoming for a permanent member of the Security Council which, after all, is supposed to be filling its seat in that capacity with a fiduciary duty to act on behalf of the 187 nations not so represented.
Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. His recent article on this subject is Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver”― Revolutionary International Legal Theory or Return to Rule by the Great Powers?, 10:2
UCLA Journal of International Law & Foreign Affairs (2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960581
