As this is written, the United States and its NATO allies are bombing the Serbian forces of Slobodan Milosevic. This is the first offensive action for NATO, and the first time that jellied armed forces have been unleashed against a sovereign nation with which the United States is not formally at war without an express authorization by the U.N. Security Council. The American public seems mesmerized by the course of events, and while, as yet, there seems no widespread opposition to our wholesale destruction of persons and property in the Balkans, neither is there much ringing support.
The bombing in the Balkans is part of a post-Vietnam creation of a new set of doctrines of international law. These doctrines have no clearly defined limits and can be used to justify brute force and human carnage in ways we have never before seen. We may be witnessing the opening moves in the forging of a New World Order, where national sovereignty is fundamentally impaired and where the possessors of superior military force can dictate the basic terms of domestic life to other nations without even the formality of conquering them in the course of conventional warfare.
President Clinton has argued that it is necessary for us to participate in the bombing of Yugoslavian targets because Mr. Milosevic and his armed forces have committed violations of the “human rights” of the ethnic Albanians who make up the majority of the population of Kosovo. His foreign-policy team has claimed that Mr. Milosevic is bent on following the same policy of “ethnic cleansing” that his Serbs have undertaken in other parts of what used to be Yugoslavia, as they seek to build a “greater Serbia.”
Investigations by international organizations have not been able to substantiate prior claims that the Serbs were following a policy of genocide; and the Kosovo Liberation Army seems to have engaged in a bit of ethnic cleansing of its own against the Serbian minority of Kosovo, just as the Bosnians earlier did to the Bosnian Serbs. As often seems to be the case in the Balkans, none of the belligerents play by Marquis of Queensbury rules. Not for nothing did Otto von Bismarck declare that the Balkans were not worth the bones of a single Prussian soldier.
Whatever the “human rights” and “ethnic cleansing” pretexts of NATO and the American President, it is the legal thinking behind the strategy that is the most new and alarming.
Considering the text of the Rambouillet accords, the real reason for bombing Milosevic’s forces—the army of a sovereign nation—appears to be to compel Belgrade to cede autonomy, if not territory, to a minority ethnic group within its borders. Some critics of our intervention in the Balkans have likened our behavior to Japan bombing California to force it to cede autonomy to Latinos in regions where they make up a majority of the population. This seems far-fetched, but so does the President’s claim that if we do not act to prevent Yugoslavia’s aggression against its own citizens, the flight of refugees from Kosovo could destabilize neighboring NATO allies, particularly Greece and Turkey, so that NATO’s bombing activities are really authorized by its basic purpose of self-defense. Indeed, what does our intervention in Serbia say to the ethnic Kurds in Turkey or even the ethnic Turks in Germany, let alone the African-American, Hispanic, Polish, Italian, Irish, and other ethnic and racial minorities in the United States itself?
What in the U.N. Charter or in international law would authorize our action in the Balkans, and what, if any, are the limits of our new doctrine of humanitarian intervention?
Article I of the U.N. Charter provides that the purposes of the United Nations are “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.” But Article II, Section 4, states, “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” and Article II, Section 7, provides 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.” Even so, that same Article II, Section 7, states that “this principle [of non-intervention into matters of domestic jurisdiction] shall not prejudice the application of enforcement measures under Chapter VII.”
Chapter VII, Article 39, states that the Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Article 41 covers matters not involving use of armed force, but Article 42 states:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Chapter VIII provides for enforcement actions to be taken by “regional arrangements or agencies” such as NATO, but Article 53, in pertinent part, explicitly indicates that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.”
There is some obscurity here, and some difficulty caused by the fact that the Charter seeks to secure both the protection of “fundamental human rights” and the “equal rights” of “nations large and small.” The Charter clearly undertakes to protect the territorial integrity and the sovereignty of individual nations, and it seems to say that it is improper for the United Nations or for NATO to interfere in a nation’s domestic affairs unless the Security Council decides that what is going on is a threat to “international peace and security” and the Security Council expressly authorizes intervention. There have been some official expressions of concern by the United Nations and its agencies about what is going on in the Balkans, but there has been no Security Council authorization for U.N. or NATO intervention in Kosovo.
Wholly outside the U.N. Charter, however, there has been developing for many years a series of international law doctrines which do authorize interference by one state in another’s affairs. These have included military actions to protect one’s own citizens who reside within another nation’s borders, and, before and after the establishment of the U.N. Charter with its stated purpose of guaranteeing “fundamental human rights,” there have been several armed interventions by nations, purportedly to protect the rights of minorities in particular or human rights in general, whether or not the individuals to be protected were citizens of the intervening nations. A third type of intervention has occurred, usually under U.N. auspices, in the cases of certain “failed states” deemed incapable of fulfilling their responsibility of protecting human rights, and there is even some scholarly and U.N. support for a fourth type of intervention to prevent human-rights violations that have not yet occurred. For these theorists, of course, national sovereignty counts for very little, if anything.
The “Restatement of Foreign Relations Law” sponsored by the American Law Institute—America’s most prestigious organization of judges, lawyers, and legal academics—sums all this up:
Whether a state may intervene with military force in the territory of another state without its consent, not to rescue the victims but to prevent or terminate human rights violations, is not agreed or authoritatively determined. Such intervention might be acceptable if taken pursuant to resolution of a United Nations body or of a regional organization such as the Organization of American States.
The best that can be said is that there is no clear justification in international law for what we are doing in the Balkans; more likely, we are in violation of the U.N. Charter. Even so, there is domestic precedent, of a sort, for the legal arguments that we are making to support our intervention in the Balkans. We are witnessing the migration of liberal constitutional law—the theory of a living Constitution—into international law.
As I have written in these pages before, the dominant jurisprudence in the American legal academy and in the nation’s courts today is “legal realism”—the notion that judges can make the law mean pretty much anything they want. Beginning with Franklin Delano Roosevelt and his academic advisors, the Constitution’s Interstate Commerce Clause has been read broadly enough to allow the federal government to intrude into virtually any matter of state law, on the theory that what happened inside the states would eventually affect other states and the nation at large. The Clinton administration has used this argument to support initiatives as diverse as the Federal Gun Free School Zones Act, which forbade firearms in or near schools, and the Violence Against Women Act, which sought to expand the intervention of federal authorities into state prosecution of crime. The Clinton administration’s argument that events in Serbia could affect other NATO countries and thus justify the offensive actions of this defensive organization are cut from the same cloth.
NATO’s justification for bypassing an express Security Council authorization for its Belgrade bombing—that the Security Council’s earlier expression of concern implicitly authorizes armed intervention —belies the real difficulty: Russia or China would veto any such resolution. NATO’s decision to go ahead without authorization is reminiscent of the Clinton administration’s tactics regarding Bill Lan Lee, “acting” head of the Justice Department’s Civil Rights Division. Mr. Lee’s position is supposed to be subject to Senate confirmation, but since his nomination has failed to secure the needed Senate approval, the President has repeatedly violated the spirit, if not the letter, of the laws regarding temporary appointments and periodically reappointed Mr. Lee “temporarily” to his position, thus mocking the Constitution’s structure of checks and balances. Mr. Lee has used his division in a manner which seems to ignore Supreme Court rulings on affirmative action. Since the Clinton administration disagrees with those rulings, however, the President and his people seem happy to ignore the constitutional structure. Something similar is now under way in international law.
The idea that we can proceed from the “implications” of Security Council actions and still act in a manner consistent with the U.N. Charter is similar to the Supreme Court’s argument regarding the unenumerated “right of privacy” which is said to flow from “penumbras and emanations” of various items in the Bill of Rights. Thus, in 1973, in the heyday of expansive interpretation of constitutional law, the Supreme Court, in the notorious Roe v. Wade decision, expanded the right of privacy into a prohibition against states forbidding first-term abortions, and the “right” to secure an abortion became a part of the Constitution.
Over the last few decades, the Supreme Court has recognized so many such “rights” that it has set forth a “balancing test” which gives it complete discretion not only to create new rights but to limit others in the service of some purported constitutional goal. Some scholars in American law reviews (the traditional testing ground for radical American legal theories) have suggested a similar balancing test for international law, in which the United Nations, or perhaps the International Court of Justice, or now NATO, would balance the Charter’s guarantees of territorial integrity, non-intervention, and state sovereignty against the “fundamental human rights” of each individual and allow the latter to prevail over the former. This is precisely what seems to be going on now.
The effect is that we can no longer rely on the “plain meaning” of the words of domestic or international law. For some time, this was the case in American civil-rights laws, which clearly forbid all discrimination on the basis of race but were read by federal agencies and many federal courts to require discrimination on the basis of race in order to favor the victims of prior discrimination. Mercifully, the Supreme Court has recently repudiated much of this “affirmative action” activity, in part because it was encouraging the “balkanization” of the American polity. Having used a twisted version of domestic constitutional law to “balkanize” America, we have now turned our constitutional law jurisprudence on the Balkans themselves.
No one knows, of course, what precedential force our intervention in the Balkans will have, but the course of American constitutional law in the last generation has shown that even the most egregious precedents are rarely overruled and that newly minted “rights” quickly generate others. This may well be true in the case of “human rights” on an international scale. One can imagine future “preventive interventions” based on quality of life and the extent to which expanded “fundamental human rights” are implemented. Much of the rhetoric employed against Mr. Milosevic turns on his status as a dictator, and several writers in the law reviews have claimed that a basic component of “fundamental human rights” is popular sovereignty secured through democratic institutions. Another component is basic human dignity, including rights to shelter, food, clothing, and even meaningful employment.
Is it too far-fetched to imagine a time when intervention might be justified if a country fails to provide three branches of government, along the American model, with a Supreme Court administering a plastic Constitution aided by Harvard and Yale professors? Could we justify armed intervention any time women have second-class status, as is still true in many Islamic and African nations?
There are also disturbing redistributionist implications to much academic and U.N. human-rights rhetoric, and it is easy to imagine a regime of private property being overthrown by armed force on the basis of “fundamental human rights.” That experiment has, of course, been tried in the Soviet Bloc nations with disturbing results. The essence of our Constitution, at least in the minds of the Framers, was that it was an essential tool to protect both person and property, and our Bill of Rights is heavy on the protection of property rights and light on what are now regarded, in the international sphere, as “fundamental human rights.” For the Framers, the most fundamental human right was the exercise of self-government through one’s elected representatives. The U.N. Charter nods in the direction of self-determination and non-interference, but its ambiguity regarding “fundamental human rights” undercuts this assurance. For the last generation, the U.S. Supreme Court, in expansively interpreting the Commerce Clause, the Bill of Rights, and the 14th Amendment, seriously restricted state and local rights of self-government. The risks of that happening on an international scale are real, and the erosion of national sovereignty is the means.
Our action in Kosovo erodes that sovereignty, as does ceding command of U.S. forces to NATO or the United Nations. Thirty years ago, at Harvard Law School, a teacher could excite his students by suggesting that we should all try to practice in the area of public international law because “the dew was still on the grass.” It may be late afternoon now, and we ought to worry about what might happen before nightfall. International law has always been messy, the Law of Nations has always been unclear, and national sovereignty, so valuable to us, is a fragile creation of the era of nation-states. It is only a few hundred years old, and it could easily perish. For most of human history, the basic principle of international relations was that “might makes right”; the idea of the sovereignty of individual nations, set forth in the work of the great civilian treatise writers on international law—Grotius, Pufendorf, Burlemaqui, and Vattel—was designed to secure for nations the right to govern themselves. Even the famously xenophobic English common law embraced this attitude through the work of Blackstone and Mansfield, and it was incorporated in American law through such great Federalist judges as John Marshall, Joseph Story, and James Kent.
Statecraft has always required prudence, particularly where there are no clear abstract principles for guidance. If sovereignty is to be preserved, there will be a great need for such prudence, and a great need to resist the temptation to abuse our military power in the pursuit of chimerical and dangerous ends. We must learn that we cannot seek to overturn every injustice, that there are at least two sides to every argument, and that the opportunities for disinformation and falsehood have multiplied exponentially in our “information age.” Accordingly, we ought to proceed with extraordinary judgment, restraint, integrity, and an attention to our classic constitutional values, the most important of which are the protection of property and self-government. The risk of generating harmful precedents is horrific, and the costs of inconsistency are dreadful. If we attack Mr. Milosevic, especially in a manner that has little justification under international law, but leave “fundamental human rights” violations in Iraq or Tibet or East Timor or China untouched, we may do little for human rights in the long run and radically undercut sovereignty and the rule of law now.