Humanity’s Law
by Ruti G. Teitel
Oxford University Press, 320 pages, $22.03
In her recent book, Humanity’s Law, Ruti G. Teitel, a law professor at New York Law School, points to a paradigm shift in international affairs, whereby previous eras that focus on state security and power are giving way to a greater discourse on international law and human rights.
First, can you briefly describe what you mean by ‘humanity’s law’? Is that the same thing as humanitarian law - the Geneva conventions and so forth?
I set out the definition in the introduction: The humanity law framework includes the laws of war, to be sure, both strands not just jus in bello but also jus ad bellum the norms relating to the initiation of war. But the framework is also informed by two more contemporary legal developments — namely, the postwar human rights revolution, and the evolution of international criminal law and its institutions, which is a new dimension of humanity law enforcement.
You write that “legal judgment is now apparently playing a bigger role in shaping prevailing political discourse and negotiations than in the past.” Can you give an example of what you mean?
We have seen a number of recent illustrations where policy regarding military and other interventions abroad has been shaped largely by humanity law considerations- most notably Libya, where the decision by the Security Council to authorize intervention was preceded by a referral of the Qaddafi regime to the International Criminal Court, as well as targeted sanctions against the Qaddafi leadership. All of this involved articulation of the international community’s action in humanity law terms — in particular, the invocation and justification of military intervention on its terms. By many accounts, this is an example of the first fully authorized exercise by the community of R2P (Responsibility to Protect).
How do you distinguish between the individual and the group, in terms of protections enjoyed under international law? Are you drawing from an Enlightenment concept of “humanism”?
The protection of peoples has always been a faultline for states under international law. Indeed, the failure of the so-called “minorities regimes” to adequately protect minoritIes between the world wars was [remedied by] the legal developments in its wake. So we have seen that the protection of a state’s peoples moves from an internal matter, — i.e. a matter of constitutional law and treaty law — to international law — e.g. the UN Charter and its specific reference to peoples (Article 2). Other postwar conventions that attest to the significance of the hitherto absence of adequate international protection are the Genocide Convention, as well as the 1954 Convention Relating to the Status of Stateless Persons. Other relevant human rights documents associated with this period and with the protection of group affiliations of persons and peoples are the International Covenant on Civil and Political Rights as well as the International Covenant on Economic and Social Rights. Even more recent international law addresses the legal protections against “ethnic cleansing” ie sovereign actions that are no longer permissible when grounded in the aim of dissolution of a group.
There seems to be this fundamental contradiction between respecting a state’s self- determination and sovereignty on one hand, and protecting human rights on the other. How does your understanding of international law square this circle?
For some time now, at least since the postwar (post-World War II) human rights revolution, we have understood that a state’s legitimate exercise of its sovereignty depends on the protection of human rights of its citizens and others on its territory, as well as those subject to its control. Rather than conceptualizing state sovereignty as somehow in opposition to human rights law, one might conceive sovereignty and its values as relativised by humanity law.
Lately we’ve seen human rights language appropriated by Putin and others to justify various annexations (e.g. R2P norms). Is this a new development? Does this do a disservice to the human rights field and make international lawyers cringe?
We can see the humanity law framework is deployed by sovereigns wherever there are threatened peoples — religious, linguistic, or ethnic minorities who are vulnerable in their own states. We saw it in earlier conflict in Soviet frontier over Georgia. While Putin has invoked concern and a humanity law justification for his intervention in Crimea, it is also being used by other liberal democratic states-such as the U.S. today by President Obama in Iraq, addressing the plight of the Yazidis. There may well be other reasons that operate for both Putin and Obama- the test of humanity law is whether it is genuinely justified on the ground in terms of the actual protection of peoples and whether the actions are likely to be successful and, in fact, be protective — i.e. its effectiveness. Hence, there are questions of tactics and of international humanitarian law that are brought to bear as well, such as proportionality, etc.
Realists always roll their eyes at the very mention of international law. How do you respond to the question: Does it really matter if there’s no enforcement mechanism? Isn’t it all about power and ‘might makes right’?
Of course international law’s power is more than just compliance with positive duties set out in treaties and conventions. What the book argues is that the very way power operates is shifting — one might think here of Moises Naim’s recent book, End of Power. Of course it isn’t really the end of power, but a shift in how power operates and is legitimated, and in my book I argue this depends more on a discourse of law and legalization.
What norms are reshaping the international order with respects to just war that you are watching? Will norms on the use of force be roughly the same as they were in the 20th century?
A move away from a bipolar world and certain related political fragmentation has created a context for possible humanitarian intervention — i.e. the initiation of war that had not been possible in the 20th century. Humanity law is a full framework that sets out the potential values and justifications but this framework also sets out the relevant constraints.
[Editor’s Correction: A previous version of this interview stated in places that Prof. Teitel teaches at New York University. She is a professor at New York Law School. We apologize for the error.]
An internationally recognized authority on international law, international human rights, transitional justice, and comparative constitutional law, Ruti G. Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at the London School of Economics. She is also the author of Globalizing Transitional Justice (Oxford University Press).
