The “Discourse” of International Law and Humanitarian Intervention

• Published date: 01 June 2017
• Author: Gustavo Gozzi
• Date: 01 June 2017
• DOI: http://doi.org/10.1111/raju.12159

The “Discourse” of International Law

and Humanitarian Intervention

GUSTAVO GOZZI*

Abstract. This essay analyzes the doctrine of “humanitarian intervention” in the

frame of international law in the second half of nineteenth century and identifies

the ground of legitimation of this intervention in the violation of presumed uni-

versal laws of humanity. The analysis emphasizes the transformation of the par-

adigm of “humanitarian intervention” into the current doctrine of the

“responsibility to protect,” which under the rubric of “responsibility” legiti-

mizes limitations on a state’s sovereignty in cases where the state fails to guar-

antee the protection of its own population. This reconstruction of the genealogy

of “humanitarian intervention” illustrates the continual exceptions to the princi-

ple of nonintervention, which means that the Westphalian principle of sover-

eignty has always been violated. Both doctrines—humanitarian intervention

and the responsibility to protect—can be considered “hegemonic techniques”

that use so-called universal concepts in order to legitimize unilateral power

interests.

1. Methodological Premises

This essay focuses on the theory of international law that in the nineteenth century

legitimated the Western states’ so-called humanitarian intervention, on the pre-

tense that this would bring civilization to other states and peoples regarded as

inhuman. The objective of this essay, adopting the perspective proposed by Martti

Koskenniemi, will be to identify the legitimization discourse underpinning the

international law of humanitarian intervention.

In his preface to The Gentle Civilizer of Nations, Koskenniemi (2001, 2) com-

ments that the book can be regarded as a history of international law considered

as “a sensibility that connotes both ideas and practices” of the liberal and cosmo-

politan movements of the nineteenth century. Many objectives of the interna-

tional lawyers of this period were partially realized: the rule of law and the

general suffrage for instance. But in the colonies the presence of Western powers

had opposite effects.

* The essay was discussed at the international conference “‘Il mite civilizzatore delle nazioni.’

Investigating International Law’s Past; Philosophical, Methodological and Theoretical Issues,”

Ravenna andBologna, 26–27 March 2013.

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C2017 The Author. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 2 June 2017 (186–204)

Koskenniemi clearly sets out his methodological perspective, adopting a Fou-

caultian approach

1

to cast light on the normative structure of international law that

grounds the idea of European superiority over other civilizations and cultures.

It may be seen, then, that The Gentle Civilizer of Nations has all the makings of a pro-

foundly innovative work, for the approach it introduces is neither essentially bio-

graphical nor a timeline for distinguishing between different epochs. The

development and transformations of international law are instead investigated by

Koskenniemi by tracing a history of the social, legal, and political ideas of the nine-

teenth and twentieth centuries, enabling him to bring into focus the relation between

“power” and “discourse,” on the one hand, and “history” and “narration,” on the

other.

The period he investigates starts from a watershed moment marking the begin-

ning of modern international law, a mid-nineteenth-century development owed to

the work of certain liberal jurists. Koskenniemi points out in particular the jurists

affiliated with the Institut de Droit International established in Ghent in 1873: They

rejected the idea of European society as a society of kings and diplomats and in its

place put forward the conception of international law as both consciousness and con-

science, expressing on the one hand an organic relation between law and society

and on the other the moral sentiments (and prejudices) of European societies.

This original approach enables Koskenniemi to outline what became the stand-

ard view or paradigm of international law in the nineteenth century: International

law was the expression of a humanitarian liberalism that conceived it as a universal

construct, amenable to being extended to other civilizations, with a view to ena-

bling all peoples to attain the levels of civilization achieved by the European

peoples.

In this way Koskenniemi laid bare the “discourse” embedded in the paradigm of

international law, in the sense of an unmistakable Eurocentric design aspiring to

become universally binding by carrying a colonial project to completion. His inves-

tigation highlights the Janus-faced aspect of nineteenth-century liberalism: On the

one hand it styled itself as the “legal conscience of the civilized world,” but on the

other it set in motion instances of hubris and cruelty legitimized by a presumption

of superiority on the part of the West. An important part of this story was the idea

of “humanitarian” intervention forming the subject of this essay.

2. The Theory of “Humanitarian” Intervention: Barbaric Humanity and

the European Peoples’ Civilization

According to the French jurist Antoine Rougier, an explicit reference to the “laws

of humanity” appeared in the second half of the nineteenth century (Rougier 1910,

473)

2

in the sources of European international law, where these laws were set in

contrast to the logic governing the “barbaric” peoples and the “partially civilized”

1

A Foucaultian perspective means that “law is not the vis-

a-vis of power, speaking absolute

truth or universal justice to power, but [...] a form of power itself that produces a truthregime

through legalknowledge claims.” In this approachlaw is “invested in the production andregu-

lations of objects[...] withinthe realm of the legal” (Aalbertsand Golder 2012, 608).

2

This essay by Rougier provides an in-depth reconstruction of the complex theory of humani-

tarian intervention in the nineteenthcentury.

The “Discourse” of International Law 187

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C2017 John Wiley & Sons Ltd.