ABSTRACT
From a historical perspective, the contemporary legal framework on the use of force is rooted in the Greek and Roman laws of war, the stipulations of the Islamic law of nations, and the writings of scholastic thinkers. The just war tradition discussed in the preceding chapter had an especially strong influence on the evolution of legal standards on the use of force in the pre-nineteenth-century period, but the establishment of the principle of sovereignty, the development of legal positivism and, later on, the increasing destructive capacity of modern technologies of warfare has shifted the focus of the legality of the use of force from moral principles to pragmatic considerations. The boundary between morality and pragmatism has become more blurred in the recent past as the UN Security Council has been seeking to amend the UN Charter in a way that would make room for an up-to-date version of the just war principles. From the perspective of international law, the decision to intervene militarily in the affairs of a different country is considered legitimate if it complies as rigorously as possible with the legal provisions laid down in various international treaties, conventions, principles, and norms agreed upon by the international community. As traditional sources of international law, Article 38 of the Statue of the International Court of Justice makes reference to three broad categories: (1) treaties – that is, written agreements between states; (2) international customs, understood as general practices accepted as law; and (3) general principles of law, underlying the first principles or assumptions concerning the lawmaking process that states must accept (e.g. sovereignty and pacta sunt servanda – agreements must be kept) (Arend and Beck 1993: 5-9). Given the long-standing authority and reputation enjoyed by international law, the evaluation of the legal dimension of the legitimacy of a military intervention should raise no significant problems, at least theoretically, since any proof of non-compliance with international law should suffice to validate the point. The issue is, of course, much more complex, and it is influenced by several factors: first, compliance with international law is rarely complete but rather partial; second, the legal provisions regulating the use of force are often unclear or even contradictory; third, the interpretation of these provisions is always filtered through the political
considerations of the actors involved; and fourth, the requirement for consensusbuilding often eludes the important question about the conditions under which consensus is attained. In order to overcome these shortcomings, the substantive component of legal legitimacy – that is, the set of legal principles, norms, and rules circumscribing the limits within which the use of force is accepted by the international community – is usually supplemented with a procedural dimension, defining the right authority and the appropriate process by which the substantive component of legitimacy has to be interpreted and implemented. The relationship between the substantive and the procedural components of legal legitimacy remains unclear thus far. Some authors focus more on the substantive aspect and argue that a strong perception of fairness, justice, and integrity is the essential ingredient for a norm to command obedience in absence of coercive measures (Dworkin 1986). Other authors put more emphasis on the procedural component and insist that the effectiveness of legal legitimacy rests on firm legalization: the higher the degree of obligation, precision, and delegation of a norm of the use of force, the stronger its capacity to yield legitimacy.48
