ABSTRACT
In a doctoral supervision session over ten years ago, Nigel Rodley taught me something about the nature of international law that I have come to reflect on repeatedly in subsequent years. It was in the aftermath of the NATO military intervention of March 1999 in Kosovo. We were discussing the legal positions that had emerged on the lawfulness of the intervention and why some international lawyers clearly saw it as a violation of the law as there was no Security Council authorization.1 Others saw it as an instance of ‘acting outside the law’;2 others thought it might be an example of a norm-violating action that had the potential to modify existing custom.3 Commenting on this multiplicity of views, Nigel said: ‘No international lawyer would be against saving the lives of civilians. But no international lawyer can accept, either, that international rules are nothing but the self-selected preferences of a few states.’ Upon further reflection, this seems to me not only one of the most important challenges to identifying the rules that govern humanitarian intervention, unilateral or otherwise, but also an important theoretical challenge to international law generally. It addresses the problem of not what the rules are, but the problem of what is the correct procedure to identify what the rules are and who should identify and apply them.4
