ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 74-78.


LIMITS OF LAW, PREROGATIVES OF POWER: INTERVENTIONISM AFTER KOSOVO by Michael J. Glennon. New York: Palgrave, 2001. 250 pp. Cloth $49.95. ISBN: 0-312-23901-7.

Reviewed by Ronald C. Slye, Seattle University, School of Law.

Michael J. Glennon has written a concise book on the Kosovo Intervention that raises a number of provocative, and at times insightful, observations concerning contemporary international politics and the legal regulation of armed force. In addressing the important, and timely, topic of humanitarian intervention, Glennon also explores the nature of international law as law, the conceptual difficulties associated with customary international law, the proper interpretive role of the U. N. Security Council, and the viability and desirability of using a top-down approach of international law to regulate state action internationally. Although the quality of Glennon's argument varies, I would recommend this book to both undergraduate and graduate school audiences (as well as members of the general public interested in the Kosovo precedent and the use of armed force internationally, a topic of obvious concern today). It is a book well worth reading, with a strong point of view and some compelling challenges to the current state of international law generally. It is particularly worth reading today, when the question of the legitimacy of the U. S. led military intervention in Afghanistan has led some to cite to the Kosovo intervention as a legitimating precedent.

Glennon's premise, which is shared by many, is that the NATO intervention in Kosovo violated the express language of the U. N. Charter. Yet Glennon, along with many others, also feels that the Kosovo intervention was right and just. The problem that Glennon raises, therefore, is a problem that we always face when confronted with a legal regime that is out of step with our sense of what is right and just. In a wide-ranging historical discussion, Glennon discusses (however briefly) Periclean Athens, the Peace of Westphalia, the League of Nations, the founding of the U. N., and contemporary state and Security Council practice. (For his history, Glennon relies, it appears, quite heavily on F. H. Hinsley's classic 1963 book, POWER AND THE PURSUIT OF PEACE: THEORY AND PRACTICE IN THE HISTORY OF RELATIONS BETWEEN STATES.) Glennon uses the unease created by the Kosovo precedent to explore the status of international law as a legitimizing force in international relations. As Glennon rightly points out, the use of force by states internationally has certainly not decreased since the end of World War II. This phenomenon raises for Glennon the question whether international law either prohibits armed interventions or, even if it nominally so prohibits, has any relevance to the real world of state action given its apparent continual breach.

Although exploring the legality and legitimacy of the Kosovo intervention, Glennon raises important questions that transcend the legality of humanitarian intervention. What is international law?

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What is the relation between international law and international politics? How does one distinguish between state action that violates international law, and state action that reflects a newly emerging rule of law? Glennon is certainly not the first to raise these questions. Nor does he provide any new conceptual insight into how we should think about them. Glennon does, however, bring a fresh voice to the questions. By raising them within the context of a military intervention that many rule of law adherents supported, he effectively emphasizes the importance of tackling some of the basic issues that underlie our conception of international law.

His argument can be summarized as follows. There is no clear international law concerning the legitimacy of using armed force under international law, and thus no clear standard by which to judge the legality of the Kosovo intervention. Customary international law is conceptually problematic, and thus does not provide any coherent rules of decision. Although the U. N. Security Council eventually approved the military intervention, the approval was provided after the fact, and the Council was acting outside of its authority. International law scholars and jurists who find the Kosovo intervention legal focus on a de jure world that has little
if any relevance to the de facto world in which states and their agent's operate. The conclusion, therefore, is that the Kosovo intervention is not prohibited by international law (and thus in fact is permitted), because there is no coherent principle of international law regulating the use of force by a state.

Glennon starts with an analysis of the Kosovo intervention under the terms of the U. N. Charter. He makes a persuasive argument that under the terms of the U. N. Charter, there is little support for justifying the Kosovo intervention. He summarizes the various justifications offered by the governments of the United States, the United Kingdom, and the U. N. Secretary General for the intervention: it was the only means to avert a humanitarian catastrophe; it was implementing and enforcing Security Council Resolutions and the Universal Declaration of Human Rights; and it qualifies as self- defense under Article 51 of the U. N. Charter. Glennon rejects each of these arguments, delving in a brief, and in some parts too cursory, discussion of the "original intent" of the Charter's drafters and original ratifying states. While some have attempted to interpret the U. N. Charter to allow humanitarian intervention, Glennon takes the narrow, but not unreasonable, view that the provisions of the Charter are clear in prohibiting armed intervention except in the case of self-defense. More controversially, he argues that humanitarian catastrophes such as occurred in Kosovo cannot qualify as a threat to the peace or a breach to the peace, and thus cannot provide legitimacy to a Security Council resolution concerning preventive intervention.

After concluding that the text of the U. N. Charter does not provide any justification for the intervention, Glennon in his second and third chapters asks if state practice has evolved in such a way as to alter the meaning of the U. N. Charter to allow humanitarian interventions. Somewhat provocatively, Glennon argues that customary international law can in fact supersede the U. N. Charter. He is not arguing here that state practice can be used to inform our interpretation of the U. N. Charter, but rather that as a matter of law the Charter can be "overruled" by customary international law. Glennon takes this opportunity to raise some serious conceptual concerns with respect to customary international law. It is this discussion of

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customary international law that I found most frustrating. Glennon correctly points out some serious problems with the concept of customary international law (how do we recognize state practice; how do we recognize OPINIO IURIS; how do we distinguish between law violation and law creation). His argument, however, is not as tight as I would like. He appears to take the position that opinion iuris is difficult to ascertain, and therefore should be rejected as part of a requirement of customary international law. Thus for Glennon, it is state action pure and simple, and not state arguments or statements, that determines customary international law. This seems to confuse what states DO, with what law, as formulated by states, says they can or ought to do. I do not want to minimize Glennon's argument here-he does make some compelling points-but there are numerous issues that Glennon's conclusions raise that he does not address. As a reader I found myself wishing he had spent more time confronting his legitimate concerns with respect to customary international law. (Maybe he will do this in his next book?) As it stands now, Glennon's position seems to collapse power with law, rather than grappling with the subtle interaction between the two.

With respect to the Kosovo intervention, Glennon concludes that the widespread and repeated violation of Article 2(4) of the U. N. Charter (prohibiting the threat or use of force against another state) by a significant number of states creates a customary international law rule that annuls Article 2(4). He devotes his third chapter to a discussion of four case studies of armed intervention by one state against another: Tanzania's 1979 intervention in Uganda; France's 1979 intervention in the Central African Republic; India's 1971 intervention in East Pakistan; and the United States' 1983 intervention in Grenada. Although some cite to these precedents
as establishing a customary international law rule allowing humanitarian intervention, Glennon sees them as prime illustrations of the indeterminacy of the motives of states and thus the limitation of a theory of customary international law that relies on opinio iuris. Glennon uses each of these four precedents to support his argument that the prohibition against the use of force in the U. N. Charter is no longer relevant law, having been superseded not by a rule supporting humanitarian intervention, but instead by a rule supporting the use of armed force against another state.

In Chapter four, Glennon returns to discuss in more detail the practice of the U. N. Security Council. Glennon provides an interesting, if brief, history of the drafting of the U. N. Charter, focusing on the question of how to reconcile Article 39 (authorizing the use of force if there has been a breach of the peace) with Article 2(7) (prohibiting interference in matters that are essentially the domestic affairs of states). Glennon concludes that in order for the Security Council to declare a threat to the peace, two requirements must be met: 1) there must be a threat of violence, and 2) the violence must have cross-border effects. This is not very controversial.
What IS controversial is Glennon's interpretive conclusion that refugee flows or human rights violations do not qualify under either one or both of these requirements. To support this interpretation, Glennon mostly cites to debates in the U. S. Senate at the time of the U. S. ratification of the U. N. Charter concerning the definition of threats to the peace-an analysis that is important in understanding the U. S. position at the time, but not conclusive regarding any consensus among the state parties who originally approved and ratified the Charter. Glennon delves into the

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legitimate interpretation of the terms of the U. N. Charter in order to establish boundaries for Security Council interpretation. What is curious about this effort is that the Security Council has its own built in check (although one some decry as itself problematic with respect to U. N. legitimacy): the veto power of the five permanent members, which includes the U. S. Any Security Council resolution is at least tolerated by, and usually affirmatively supported by, the U. S., Russia, China, Britain, and France. Security Council interpretations of the Charter thus have the imprimatur of at least these five powers, and usually many more. It is curious that Glennon does not seem to attribute much significance to this fact and use the approval of at least five powers to provide some basis for arguing either that Security Council resolutions are legitimate interpretations of the U. N. Charter bounded by the tolerance of state members of the Security Council, or that Security Council resolutions are evidence of customary international law that may supercede the U. N. Charter.

Finally, the last two chapters of the book are devoted to the important question of whether it is possible (Chapter 5), or even desirable (Chapter 6), to have a legalist use of force regime. In other words, can and should the use of armed force by states be regulated by international law, or is it more realistic, and preferable, to allow power to determine and legitimize use of force? This is an interesting, and provocative question that few international law scholars seriously address today. Glennon concludes that not only is the world not able to sustain a legal system to regulate the use of force internationally, but that current efforts to create such a system
are harmful, because they force us to fall back on systems of validation other than law (such as justice, morality, and legitimacy) to justify actions like the Kosovo intervention. This is a provocative dilemma, and one that Glennon does not devote as much thought to, as I would like. He does, however, highlight some of the major arguments and issues raised by the tension between law and morality, law and justice, and law and legitimacy. The problem with these alternative systems for Glennon is that they are not based on consent, and there is no universal consensus on their substantive content. Glennon does not, however, support a future international community ruled by power. He argues for a more explicit and more certain legalist approach based on treaties that is both honest in its description of reality and attracts wide support among the diverse states of the world.

Glennon ends with the dilemma posed by the Kosovo intervention and efforts to argue for a right to humanitarian intervention. The problem for Glennon is that in order to establish a right to humanitarian intervention, you need to give up on universal consensus. (This is a problem similar to that created by the U. S. with respect to the establishment of the International Criminal Court, the prohibition against landmines, and the global climate negotiations.) Glennon ends up reluctantly recommending that we allow an ad hoc, bottom-up, approach to humanitarian intervention, citing to the Kosovo intervention as an effort by NATO to create a general rule permitting such intervention that, while it does not reflect or enjoy a universal consensus, is tempered by the fact that it was multilateral, undertaken by a pre-existing coalition (NATO) with its own principles to uphold (that is, it was not opportunistic), undertaken by democracies, regional, and not hindered by strong negative positions by states outside the region. Glennon ends up in a sort of

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customary international law regime, governed by a cost-benefit, or risk, analysis to determine whether intervention is warranted or not. These cost benefit determinations lead to normative decisions. For Glennon, however, (and this is where he differs from a customary international law approach), such normative decisions do not become law unless later included in an explicit treaty. At the end of the day, Glennon rests his hope with treaties as the fundamental basis of international law, with custom relegated to a pre-law developmental role.

Glennon concludes by noting that, "Fifty years after the drafting of the [U. N.] Charter, it is no longer possible know when use of force by states violates international law." This is, I think a large overstatement- there is, I would argue, probably no more uncertainty with respect to when the use of force violates international law as there is with most other interpretive questions of law, such as when equal protection or due process is violated by government action under the U. S. Constitution. I think it is fair to say that there is wide consensus that the invasion of Kuwait by Iraq violated international law. Glennon is right, however, that there is uncertainty with respect to the legality of humanitarian intervention. Although one may argue with his solution to the problem of the lack of clarity of international law with respect to the use of force, he has written a timely book that raises in a thought-provoking way some important questions facing international law and international relations today.

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Copyright 2002 by the author, Ronald C. Slye.