The United Nations Charter rendered war ¯ i.e., the use of
force by states across borders ¯ illegal in all but two
circumstances, these being self-defense and collective action
authorized by the Security Council. However, some have long argued
for a third exception to the above rule. Arguing that human rights
also constitute an important element of international law, their
position contends that the use of force with the goal of protecting
against gross human rights violations ought to be legal, even
absent Security Council backing. This is known as humanitarian
intervention.
The 1999 NATO intervention in Kosovo was accompanied by a period of
stark silence from international lawyers concerning its strict
legality.1 Many of those who proffered comment couched their
analyses in terms of "traditional international law."2&3 The
rationale behind this reticence to affirm the legality of NATO's
actions is simple: Any such affirmation could be immediately
demonstrated to be untrue.
International law is heavily criticized by several schools of
international relations theory, notably Neo-Realism. Therefore, it
has fallen to international lawyers to defend their discipline in
recent decades in the face of Realist assertions that states only
obey international law when doing so is in their interest. This
affirmative role is predicated upon being able to point to written
stipulations or interdictions to enforce rights and obligations
upon states.
Nonetheless, despite the above trend, and despite the fact that
NATO effectively did as it pleased in Kosovo, few international
lawyers were wont to condemn the operation as downright illegal.
Perhaps this is a lesson from history. Gustav Radbruch fervently
believed that a too-strict adherence to positivistic philosophy in
pre-Nazi Germany smoothed the route to dictatorship and the
subsequent abuses.4 Allen Buchanan echoed Radbruch's sentiments
nearly 60 years later in his rejection of "legal absolutism": the
view that "it is virtually never justifiable to violate
international law… even for the sake of protecting human
rights."5 However, given the leaning toward affirmative positivist
rhetoric, it required in both cases a show of armed force combined
with human suffering to prick the conscience of legal scholars.
Pre-war, Radbruch had been a renowned German positivist. Similarly
it is germane to note how, in the aftermath of the Kosovo
operation, pricked consciences have transformed erstwhile
positivists into fervent apologists for intervention. This was
achieved by a myriad of means, including attempting to separate the
legality of the operation from its "legitimacy" (Kosovo Report);
attempting to brand it legal simpliciter (Jeremy Greenstock);
exploring "the exception" in international law (Martti
Koskenniemi); or formulating morally acceptable ways to disobey
international law (Allen Buchanan).
All of the above formulae attempted to resolve the same problem,
namely, that international lawyers wished to find a solution which
would accommodate compliance for international law, and at the same
time ensure respect for human rights. It was a futile endeavor,
since none of the authors achieved their goal and reconciled
his/her conscience with the law. It remains to propose an
alternative formulation. I propose to look to the law itself, and
above all to past efforts in dealing with such problems, in order
to chart a way forward.
Legal Rigidity and Lessons from the Past
The humanitarian intervention debate may be surmised thus:
* The rigidity of the statutory instrument (the UN Charter,
governing the use of force by states, and the Jus Cogens
(compelling law) nature of the norms involved);
* and the factual likelihood that it will not soon be reformed (due
to the interests of powerful states in preserving the status
quo)
* result in a situation where a recognizably unjust result (gross
human rights violations)
* may be achieved without the possibility of an effective solution
which exists (humanitarian intervention) being legally
achievable.
Clearly, the kernel of the problem rests in the rigidity of the
statutory instrument. This is not a new problem. It has been dealt
with in the past in various domestic jurisdictions. What surprises
me is that the assortment of remedies proposed did not touch upon a
solution which had proved effective in a variety of disparate legal
regimes across the world in resolving problems wrought by legal
rigidity impinging upon the achievement of just results. The
solution to which I refer is equity.
In 16th-century England, a process began to solve a problem that
had long beset English law. The problem centered on legal rigidity
and the indisposition of the government toward legal reform. In
essence:
* The rigidity of the statutory instrument (the laws of
England)
* and the factual likelihood that it will not soon be reformed (due
to the interests of the crown in preserving the status quo)
* result in a situation where a recognizably unjust result
(uncompensated damage)
* may be achieved without the possibility of an effective solution
which exists (specific performance of the legal obligations
defaulted upon or restitution to remedy the wrong committed) being
legally achievable.
The increasing need to find a solution to the inflexibility and
inadequacy of the Common Law statutes was highlighted by the
near-anarchy which resulted in the wake of the War of the Roses,
due to unwieldy Common Law procedures.6
In the end, the solution came from within. There had long existed
the possibility of a special appeal to the king in the wake of a
manifestly unjust result. The king would then judge on the basis of
justice. His remedy would not be limited by statute, and damages
could take any form. Resort to such appeals grew in popularity
exponentially. In time, this process was replaced by a separate
system of courts, which eventually merged with the judicial
mainstream. In the event of a clash between equity and law, equity
should prevail.
In order to counter charges of subjectivity, equity developed a
series of guideline "maxims," which would guide the judges in their
decisions.
Equity as a Source of International Law: The Maxims of
Equity
Equity's principles have been seen to permeate into Western legal
systems.7 [In the 17th century] Hugo Grotius and Samuel von
Pufendorf included an important place for equity in inter-state
relations8. Equity also featured in discussions of a panel of
jurists advising upon the creation and statute of a Permanent Court
of International Justice (PCIJ).9 Although never admitted into
Article 38 of the PCIJ Statute (nor that of the International Court
of Justice [ICJ]) as a free-standing source of international law,
it is clear from the travaux preparatoires (preparatory work) that
equity was firmly envisaged as playing a role as part of the
"general principles of law recognized by civilized nations" ¯
one of the four agreed sources of international law. Further,
equity played a vital role in many international judgments.
Although certainly not co-terminus with its role in any one
national jurisdiction,10 equity had then been consecrated as a
composite element of one of the sources of international law. This
was reflected in subsequent case-law, where the PCIJ and later the
ICJ affirmed certain "maxims" of equity in their judgments. These
maxims were originally incorporated into the Common Law to rein in
the subjectivity that risked conferring a too-broad discretion upon
judges in deciding on the basis of "justice" rather than law. That
such maxims were similarly adopted into international jurisprudence
reflects similar concerns. Some equitable maxims adopted are:
* Ubi ius, ubi remedium ¯ equity will not suffer a wrong
to be without a remedy;11 * Aequitas sequitur legem ¯ equity will follow a sound,
settled rule of law;12
* Equity will not decree a vain thing ¯ equity will
only intervene where it can be of effective use;13 * Equity looks to the substance rather than the form ¯
equity will not allow formalism from blocking its
application;14 * Vigilantibus et non dormientibus aequitas subvenit15 (and
estoppel16) ¯ equity will not aid those who sleep on their
rights17 (and also meaning that where there is an assurance given,
reliance thereupon, and detriment suffered as a result thereof,
that such an assurance must be made good upon);18 * He who comes to equity must come with clean hands ¯
to invoke equity, one must be free of iniquity;19 * He who seeks equity must do equity ¯ which obliges
those invoking equity to act equitably thereafter20; and * Equity delights in equality ¯ i.e., a balance should
be achieved as regards distribution of justice.21
Further, based on my own conclusions, I venture to include one
further maxim: * Equity will not stoop to pick up pins ¯ equity does
not concern itself with trifles. Since trifles do not really exist
in inter-state international law, I take this maxim as being
accepted, even if it has not been explicitly stated.
Humanitarian Intervention and Equity
Therefore we see that at least eight (effectively nine) maxims of
equity have known transposition into international law. It remains
to examine how this impacts upon humanitarian intervention.
1. Aequitas sequitur legem
Humanitarian intervention represents a use of force by states
outside of the two exceptions to the UN Charter prohibition.
However, the textual interpretation of the UN Charter is far from
settled. Firstly, one must take into account that the use of force
is prohibited, some argue solely, against the political
independence of a state. Others disagree, arguing for a blanket
ban. It is wise, further, to be aware of the inherent
incompatibility of the human rights norms with a legal regime which
treats the protection of state sovereignty as paramount and
consecrates a principle of non-intervention. A vibrant scholarly
debate surrounds this legal regime, as well as its morality, and
its "other," Taking the above into account, it is clear that the
principle Aequitas sequitur legem22 cannot apply.
2. Ubi ius, ubi remedium
Human rights norms have attained great importance in international
law. While regional treaties such as the European and American
Conventions on Human Rights are not universally ratified, many
human rights norms constitute customary law,23 while conventions
banning specific human rights abuses abound.24 Some such norms have
even been suggested to have attained Jus Cogens
status.25
It remains to examine the protection provided against abuses of
such norms, and to ensure that when abuses do occur, adequate
remedies exist. The problem is that within the UN Charter, which
predates much of the human rights framework, there exists a lacuna.
State sovereignty and non-interference reign supreme. A limited
inherent right of self-defense is provided for. Outside of this,
the Security Council may authorize force in order to assure the
protection of international peace and security. In theory, this
ought to go a long way toward protecting human rights, since it is
within the context of international strife that the most horrific
human rights abuses occur.26 However, in reality, its effectiveness
is constrained by three factors:
* The Security Council's subjectivity;
* The veto; and
* The fact that "international peace and security" is not equal to
"human rights." After all, international peace and security may be
secured in a region where states enjoy friendly relations, but
where within individual states, torture and genocide are rampant.
The non-identical nature of the two concepts means that protecting
the latter may theoretically be accomplished effectively without
unduly concerning oneself with the former.
From the above, one may reasonably conclude that no (effective)
protection against gross human rights abuses exists. However, if
and when there exists a wrong without a remedy, equity will rectify
this. Equity's preference in such situation is to "fill the gaps"
in the law. Therefore, if it becomes apparent that a program of
gross human rights abuses is taking place, which may only be
remedied by an armed intervention, then equity shall permit this
intervention.
3. Equity will not decree a vain thing
Equity is strongly disposed towards making a real contribution to
substantive justice. Equity will search for the solution that
contributes most effectively to solving problems and righting
wrongs. If this solution transpires to be intervention, then this
shall be the preferred medium. Equity will not choose another
solution more in keeping with the letter of the law simply for
formal reasons if this will not be equally effective.
4. Equity looks to the substance rather than the
form
Equity's abhorrence for formalism and its stipulation that written
instruments may never be used as a shield for illicit activities
combine to qualify the interdiction on the use of force. If such an
interdiction is used to allow states to commit gross human rights
abuses within their own borders without fear of recourse to force
by other states in order to end such a state of affairs, and if,
further, such an armed response is the only effective manner in
which these abuses may be ended, equity shall look at the substance
of the UN Charter, rather than its form.
The chief aim of the UN Charter is clearly the prevention of armed
conflict. The purpose of the ban on the use of force is clearly a
measure intended to limit such conflicts and thus protect people.
The purpose is not, however, to ensure an all-encompassing
sovereignty which allows people to be tortured and murdered at the
whim of a dictator. Such conduct is intended to give rise to action
by the Security Council in its role as protector of international
peace and security. However, if and when this proves impossible,
equity allows recourse to a more teleological interpretation of
international legal norms, in the light of their intended purpose.
This broader interpretative faculty conferred by equity allows an
action like humanitarian intervention to be permissible if it
provides a practical solution that may be read as a gap-filling
panacea to cure lacunae in the relevant legal provisions.
5. Vigilantibus et non dormientibus aequitas subvenit (and
estoppel)
The risk of delay defeating equity is important where states
refrain for many years from action against a transgressor. If
states do not offer diplomatic protests, and if they do not search
for peaceable means to put an end to the situation, instead
standing aloof for years on end, they may be precluded from future
action by the fact that they accepted this situation for an
extended period.
Concerning the doctrine of estoppel, it is applied in tandem with
ubi ius, ubi remedium:
* An assurance is furnished by any state which ratifies human
rights treaties, or which refrains from protesting regarding the
reception of human rights norms into customary law. This assurance
extends to other states and to its citizens, that those persons
resident on its territory will be protected.
* A reliance comes from the citizens of the state, who
conduct their daily lives free from fear due to the assurance. A
further reliance upon this assurance from the other states
constituting the international community may also be held to exist.
The state in question has, in effect, promised to respect certain
norms, a promise upon which other states rely in their dealings
with the state.
* A detriment is incurred, both by the citizens ¯ whose
rights are infringed ¯ and by the other states in the
international community ¯ who have changed their position and
policy towards the abusive state on foot of the given assurances
and who are unable now to rely on such assurances ¯ in the
case where a state engages in gross human rights abuses in
contravention of international law. In addition, it is accepted
that certain human rights protection obligations are owed erga
omes, and therefore, every state is entitled to feel detriment when
such obligations are not fulfilled.
The three prerequisite elements for an estoppel all being present,
the transgressor state is estopped from denying the original
assurance. In ideal circumstances, this would be ordered by an ICJ
injunction. However, the ICJ's jurisdiction makes this unlikely.
Therefore, the fact that an estoppel arises but is unenforceable
requires further recourse to the maxim ubi ius, ubi remedium. If
the Security Council is unwilling or unable to take appropriate
measures to enforce this estoppel, then equity may permit a third
state or a collection of third states to intervene, to enforce the
estoppel by whatever means required.
6. He who comes to equity must come with clean
hands
The intervening power, in order to maintain the right to intervene,
must itself be free of iniquity. This will necessarily preclude the
involvement of states in operations to end gross human rights
abuses which themselves engage in similar practices. This check
creates an incentive for states to keep their hands clean, thereby
allowing them free choice in foreign policy decisions.
7. He who seeks equity must do equity
The necessary prospective corollary of the above is that if one
resorts to equity, one must act equitably, and not derive undue
profit from equity's operation. This principle may be of particular
importance in the conduct of a humanitarian intervention operation.
If the operation is undertaken, as it must necessarily be, to
protect human rights (and human security) and to prevent further
abuses from occurring, then human rights and human security must be
paramount in the minds of its directors.
What this entails, in concrete terms, is a new approach to such
operations. Humanitarian interventions must not be equated with
other types of armed conflict. The idea here is to end gross human
rights abuses, employing the most effective means. However, this
cannot and must not involve impinging upon human rights beyond what
is necessary. Of course, what this principle entails is already
broadly set down within the Geneva Conventions, but the spirit of
these texts was not followed when NATO warplanes flew at high
altitudes over Kosovo. If International Humanitarian Law alone
cannot constrain intervening states to act humanely and with
caution and respect for the perhaps the maxims of equity may lend
fresh perspective on the need to avoid hypocrisy ¯ purporting
to save civilians while killing civilians ¯ in such
operations.
8. Equity delights in equality
Regarding humanitarian intervention, this principle may be used to
prevent states from being selective about where to intervene where
similar abuses are being contemporaneously committed in neighboring
states in a region. Justice must be available to all.
9. Equity will not stoop to pick up pins
In order for equity to intervene, set aside the letter of the law
and impose a solution which involves considerable cost to all
involved, the matter at hand must not be trifling. The human rights
violations must be both serious and verifiable. They must, in
short, occur on a scale grand enough to "prick the conscience of
mankind." This is in accordance with common definitions of
humanitarian intervention ¯ two killed people and a tortured
prisoner are not enough for an intervention.
Conclusion: An Equitable Framework for Humanitarian
Intervention
Based upon the nine principles above, a model for humanitarian
intervention which may be held to be legal by virtue of equity,
insofar as equity is a general principle of international law,
emerges. Its tenets are as follows:
* A series of gross human rights violations must be
committed…
* … by a state which has either signed human rights treaties
or which has not consistently objected to the inclusion of human
rights as part of customary law.
* No peaceable means of stopping these violations is
available.
* No means within the UN Charter of stopping these violations is
available.
* The reasonable determination that the only remaining means of
putting an end to such abuses is by armed intervention.
* Intervention is only permitted where it may be an effective
solution and is not undertaken in vain.
However, importantly, the equitable legal permissibility of
humanitarian intervention is further predicated upon a code of
conduct for intervening states, namely:
* No state which itself engages in gross human rights violations
may intervene.
* States must intervene with the sole purpose of ending such
violations and may not profit unduly as a result of doing so. They
must act equitably in enforcing equity and must refrain from
unnecessary loss of civilian life and unnecessary suffering.
* Neighboring states engaged in identical violations must be
treated in an identical manner.
* Intervening states may not sleep on their rights to intervene,
ignoring abuses for years before deciding to intervene because of
these abuses.
The above represents equity's formula for humanitarian
intervention. Its attention to the duties owed by the intervening
power creates a series of safeguards against abusive invocation.
The utility of these safeguards must not be underestimated. If
states wish to intervene, they must themselves boast a respectable
human rights record, and must conduct the operation with the
highest regard for the lives of those civilians whom they are
protecting. In addition, the obligation to act in parallel against
one transgressor as against another prevents invocation of the
formula against unfriendly states, while smiling amicably upon the
abuses of one's friends. Further, the fact that states may not
sleep on their rights, and that doing so may debar them from
intervening later, creates impetus to intervene immediately when
the abuses begin, in the knowledge that their hands may be tied in
the event of later intervention.
Equitable humanitarian intervention is a new concept, albeit rooted
in law which has existed for many years. Equity does not require
state practice to affirm its worth, embedded as it is as an
independent source of law. Equitable principles should, instead, be
used in the future as a template, a checklist by which to judge the
legal validity of interventions of a humanitarian nature when
institutional options are not available. It remains to be seen
whether states will take these principles to heart, but if they do,
they may be assured of a legal basis for altruistic operations, and
a means of legally separating the above from opportunistic
belligerence.
The formulation presented shares common elements with the formulae
advanced by various scholars who have made use of the
legal/legitimate dichotomy or who have attempted to mix law with
ethics, politics or "justice." In addition, the equitable
formulation is mirrored in much of its import by the International
Commission on Intervention and State Sovereignty (ICISS)
"Responsibility to Protect" principles. However, the superiority of
the equitable solution must immediately be obvious, insofar as it
is rooted in the law, not merely in ethics, politics or
pig-philosophy.
The equity model allows states the right to humanitarian
intervention without resort to illegality. In return for this
right, however, they must present clean hands and comport
themselves equitably.
Many problems remain with the above formulation: its enforceability
for one thing, and whether it will ever find favor with state
practice.
However, perhaps it is not too far-fetched to speculate that states
may consent to some constraints imposed by a solution which creates
a legal basis for intervening without Security Council
authorization. If this is the case, equity may provide the basis
for saving many strangers in the future.
1 M. Byers, and S. Chesterman, "Changing the rules about
rules? Unilateral humanitarian intervention and the future of
international law," in ed. J.L. Holzgrefe, and R.O. Keohane,
Humanitarian Intervention: Ethical, Legal and Political Dilemmas
(Cambridge: Cambridge University Press, 2003), p.177.
2 See for example C. Greenwood, "Yes, but is the war legal?,"
Observer, March 28, 1999.
3 See also J. Habermas, "Bestiality and Humanity: A War on the
Border between Legality and Morality," Constellations, Vol.6, No.3
(1999), pp.263-272, at p.264, who uses the term "classical
international law."
4 G. Radbruch, Die Erneuerung des Rechts, 2 Die Wandlung 8, 10
(Germany 1947).
5 A. Buchanan, , Justice, Legitimacy, and Self-Determination: Moral
Foundations for International Law (Oxford: Oxford University Press
2004), p441.
6 S. Prall, "The Development of Equity in Tudor England," The
American Journal of Legal History, Vol.8, No.1 (1964), p. 9.
7 Justice M. White, "Equity - A General Principle of Law Recognised
by Civilised Nations?" Queensland Law Journal, Vol. 4, No.1 (2003),
pp.103-116,
8 Ibid, p106.
9 W.G. Friedman, Legal Theory, 5th ed., (Stevens, 1967), pp.
543-545.
10 S. Rosenne, "The Position of the International Court of Justice
on the Foundations of the Principle of Equity in International
Law", in ed. Bloed and van Dijk, Forty Years of the International
Court of Justice (Europa-Instituut, 1988), p.85.
11 Belgium v Spain (1970) ICJ Rep. 3.
12 S. Rosenne, S., "The Position of the International Court of
Justice on the Foundations of the Principle of Equity in
International Law," in ed. Bloed and van Dijk, Forty Years of the
International Court of Justice (Europa-Institut, 1988), p.85.
13 Belgium v Spain (1970) ICJ Rep, p.3.
14 Netherlands v Belgium (1937) PCIJ (ser A/B) No.70, p.4.
15 United Kingdom v Norway (1951) ICJ Rep., pp.116-124.
16 Hungary v Slovakia (1997) ICJ Rep., p.7, concurring opinion of
Vice-President Weeramantry.
17 Serbian Loans (1929) PCIJ (ser A) Nos. 20/21, p.5.
18 Thailand v Cambodia (1962) ICJ Rep., p.6.
19 Netherlands v Belgium (1937) PCIJ (ser A/B) No.70, p.4. See
particularly the opinion of Judge Hudson, who stated: "It would
seem to be an important principle of equity that where two parties
have assumed an identical or reciprocal obligation, one party which
is engaged in a continuing non-performance of that obligation
should not be permitted to take advantage of a similar
non-performance of that obligation by the other party. The
principle finds expression in the so-called maxims of equity which
exercised great influence in the creative period of the
Anglo-American law. Some of these maxims are, 'equality is equity,
'he who seeks equity must do equity'… a very similar
principle was received into Roman Law."
20 Netherlands v Belgium (1937) PCIJ (ser A/B) No.70, p.4.
21 Ibid.
22 … which Howard Oleck describes as "minor." See H.L. Oleck,
"Maxims of Equity Reappraised," Rutgers Law Review Vol.6, No.3
(1952), pp.528-533.
22 … which Howard Oleck describes as "minor." See H.L. Oleck,
"Maxims of Equity Reappraised," Rutgers Law Review Vol.6, No.3
(1952), pp.528-533.
23 The prohibition on slavery, genocide and crimes against humanity
may be examples.
24 For example, the Convention on the Prevention and Punishment of
the Crime of Genocide adopted by the UN General Assembly in 1948,
and en vigeur since 1951.
25 M. Janis. and J. Noyes, International Law: Cases and Commentary,
3rd ed., (London: American Casebook Series, Thomson & West,
2006), p.148.
26 M. Walzer, "The Argument about Humanitarian Intervention,"
Dissent (Winter 2002), pp.29-39.
