Advocates and opponents of humanitarian intervention From the 1860s onwards, international law became an academic discipline in its own right in Europe and the Americas, taught separately from philosophy, natural law or civil law, and came to be written by professional academics or theoretically inclined diplomats. 1 Until then what existed was the droit public de l’Europe or ‘external public law’. Britain in particular had to
This book is an attempt at a comprehensive presentation of the history of humanitarian intervention in the long nineteenth century, the heyday of this controversial doctrine. It starts with a brief presentation of the present situation and debate. The theoretical first part of the book starts with the genealogy of the idea, namely the quest for the progenitors of the idea in the sixteenth and seventeenth century which is a matter of controversy. Next the nineteenth century ‘civilization-barbarity’ dichotomy is covered and its bearing on humanitarian intervention, with its concomitant Eurocentric/Orientalist gaze towards the Ottomans and other states, concluding with the reaction of the Ottomans (as well as the Chinese and Japanese). Then the pivotal international law dimension is scrutinized, with the arguments of advocates and opponents of humanitarian intervention from the 1830s until the 1930s. The theoretical part of the book concludes with nineteenth century international political theory and intervention (Kant, Hegel, Cobden, Mazzini and especially J.S. Mill). In the practical second part of the book four cases studies of humanitarian intervention are examined in considerable detail: the Greek case (1821-1831), the Lebanon/Syria case (1860-61), the Balkan crisis and Bulgarian case (1875-78) in two chapters, and the U.S. intervention in Cuba (1895-98). Each cases study concludes with its bearing on the evolution of international norms and rules of conduct in instances of humanitarian plights. The concluding chapter identifies the main characteristics of intervention on humanitarian grounds during this period and today’s criticism and counter-criticism.
This book focuses on the paradoxical character of law and specifically concerns the structural violence of law as the political imposition of normative order onto a "lawless" condition. The paradox of law which grounds and motivates Christoph Menke's intervention is that law is both the opposite of violence and, at the same time, a form of violence. The book develops its engagement with the paradox of law in two stages. The first shows why, and in what precise sense, the law is irreducibly characterized by structural violence. The second explores the possibility of law becoming self-reflectively aware of its own violence and, hence, of the form of a self-critique of law in view of its own violence. The Book's philosophical claims are developed through analyses of works of drama: two classical tragedies in the first part and two modern dramas in the second part. It attempts to illuminate the paradoxical nature of law by way of a philosophical interpretation of literature. There are at least two normative orders within the European ethical horizon that should be called "legal orders" even though they forego the use of coercion and are thus potentially nonviolent. These are international law and Jewish law. Understanding the relationship between law and violence is one of the most urgent challenges a postmodern critical legal theory faces today. Self-reflection, the philosophical concept that plays a key role in the essay, stands opposed to all forms of spontaneity.
The just war doctrine The original just war doctrine was not concerned with intervening in other states for humanitarian reasons, but with providing just reasons for resorting to an inter-state war. It was only by the sixteenth century, coinciding with the birth of international law, then known as jus gentium or law of nations, under the sway of natural law, that support for those suffering from tyranny and maltreatment was seen as one of the
that the history of occidental legal forms was a history of torture and cruelty, of discipline and punishment, of police, prisons, and border control, there are at least two normative orders within the European ethical horizon that should be called “legal orders” even though they forego the use of coercion and are thus potentially nonviolent. The first one is international law, as most prominently conceptualized by Kant himself (thereby contradicting his own definition of law): international legal norms are binding, but have no distinct coercive forces at their
political union and has neither a Weberian Anstaltsstaat nor a Kelsen–Merkl-style hierarchical structure of law on the transnational level, it is not without legal rules. In fact, the problem legal practice faces is usually a different one: how to correlate the different legal orders. Overlapping circles of jurisdiction and the parallel existence of widely divergent patterns of order –what Saskia Sassen has called assemblages23 –give rise to norm collisions in the global legal pluralism and a fragmentation of international law that cannot be comprehended in the
community of equal citizens implies that there is no law beyond the borders of such community. The statement is obviously false in our time, when we are witness not only to the growth of international law, but more significantly to an incipient process of its constitutionalization, along with the constitutionalization of human rights. My point is that the claim was dubious even at the time of the “birth of tragedy,” for then too there existed customary law and the embryo of what in Roman times would be called jus gentium. Thus at no juncture in history does it seem to
together. Fischer-Lescano calls it “a theory that is plausible in a world defined by the Westphalian order. But this form of life has grown gray” (p. 173). Daniel Loick agrees and confronts it with the form of Jewish law in the diaspora that functions precisely “without being represented in a state form” (p. 102). Furthermore, for both Fischer-Lescano and Loick, the different regimes of international law are paradigms that show the conceptual independence of legal procedure and political community: they are “forms of lawmaking beyond the political community conceived
Contrary to international law, international political theory and political philosophy paid scant attention to the ethics of intervention in the long nineteenth century. 1 As for humanitarian intervention per se, there is nothing, apart from cursory remarks by John Stuart Mill and Giuseppe Mazzini. On the wider question of intervention and non-intervention we will refer to their views and to those of Kant, Hegel and Cobden. Based on today’s distinction
’s many commentators and critics. Key features of the debates over NATO’s employment of military power have been concerned with its legality and legitimacy (i.e. the role of the UN and international law), its ethical basis and its impact on the doctrine of non-intervention in the domestic affairs of states. The conceptual debates that have raged over these issues are important not only within the context of European security but