The Rule Everybody Cites and Nobody Keeps

The legal position is unambiguous and can be stated in two sentences.

Article 2(4) of the United Nations Charter requires all members to refrain from the threat or use of force against the territorial integrity or political independence of any state. Article 2(7) bars the United Nations itself from intervening in matters essentially within a country's domestic jurisdiction.

Everything in this book happens against that text. Most of it violates that text.

Sovereignty is usually traced to the Peace of Westphalia in 1648, and the tracing is shakier than the confidence with which it is repeated. Andreas Osiander and others have argued that the treaties concerned the internal settlement of the Holy Roman Empire and say almost nothing about a system of equal sovereign states, and that the sweeping reading is a nineteenth-century back-formation, projected onto a convenient date. The idea is real. The origin story is tidier than the history.

Sovereignty has two faces and it is worth keeping them apart. Internal sovereignty means nobody outranks the government inside its own borders. External sovereignty means no other state may reach in. Almost every dispute in this subject is about the second one.

Here is the argument this chapter is really for.

A rule that is broken regularly is not thereby a dead letter, and the evidence for that comes from the people breaking it. States do not announce that Article 2(4) does not apply to them. They deny the action, or they route it through people who can be disowned, or they find a legal theory under which it was not force at all. Belgium sent volunteers to Mexico. The CIA worked through Iranian intermediaries. Concealment is expensive and it is chosen anyway, which is testimony about the strength of a norm from exactly the witnesses with the least reason to flatter it.

Now the case against, at full strength, because it is a serious one.

Absolute sovereignty protects governments, not populations. A state can starve, imprison and kill its own people behind Article 2(7), and the doctrine that forbids interference forbids rescue with the same words. That reasoning produced the Responsibility to Protect, adopted at the 2005 World Summit, which holds that sovereignty carries a duty of protection and that failing the duty can forfeit the shelter.

The problem with the doctrine is not its logic. It is its application. It has been invoked where intervention was convenient and set aside where it was not, and the pattern is close enough to the pattern of national interest to be uncomfortable. A principle that only operates when it coincides with advantage is doing no independent work, which returns us precisely to the difficulty in the previous chapter.

So the honest position is a double one. The rule constrains, unevenly and partially, and the evidence is in the lying. The exception to the rule is morally necessary and has been used selectively enough that its critics were right to be suspicious. Both of those can be true, and anybody who finds one of them comfortable to drop is not reading the record.