March 21, 2011


The Folly of Protection: Is Intervention Against Qaddafi’s Regime Legal and Legitimate? (Michael W. Doyle, March 20, 2011, Foreign Policy)

The true complexity of the UN action against Qaddafi’s regime can be understood only by investigating the UN Charter, which specifies that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” The only exception to this principle falls under Chapter VII of the charter, which authorizes the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and act to “maintain or restore international peace and security.” Internal abuses by states -- including the slaughter of civilians -- do not automatically qualify as “international” threats under the charter.

Nonetheless, the Security Council has, in practice, claimed wide discretion to interpret events as “threats to the peace” that did not necessarily qualify as dangers to “international peace.” This phenomenon became particularly acute following the Cold War, when the Security Council further diluted the requirement of “international threat” by endorsing a wide range of other triggers for successful Chapter VII sanctions. It authorized arms embargoes, trade sanctions, no-fly zones, and even armed intervention against various acts of genocide, ethnic cleansing, interference with the delivery of humanitarian supplies, violations of cease-fires, collapse of civil order, and coups against democratic governments and war crimes in Haiti, Cambodia, Iraq, Liberia, Rwanda, Somalia, and the former Republic of Yugoslavia.

RtoP, responding to the sense that these domestic harms warranted international response, solidified the Security Council’s claims to wider discretion. Yet it also restricted its ability to sanction intervention to the four situations listed in the RtoP document -- genocide, war crimes, ethnic cleansing, and crimes against humanity -- and thus precluded, for example, intervention in cases of civil disorder and coups. Although the resolution authorizing force against Libya will certainly further entrench the principle of RtoP, it will not completely resolve the tension between RtoP -- in itself only a General Assembly recommendation -- and the UN Charter itself, which, according to the letter of the law, limits action to “international” threats. Equally significant, the Libyan resolution authorizes only a no-fly zone and the protection of civilians, not the ouster of Qaddafi that U.S. President Barack Obama has called for and which is most likely to resolve the crisis politically.

The analysis properly begins with the legitimacy of the regime, and, since Libya is not a democracy, it has no sovereign that we recognize.

Posted by at March 21, 2011 6:32 AM

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