CYIL 2015

YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? … The fear of ‘ideological crusades’ is well-grounded in the standing democracy has enjoyed inWestern circles ever sinceWoodrowWilson’s famous war message to Congress, where he declared, in adherence toKant’s idea of perpetual peace, that ‘[a] steadfast concert for peace can never be maintained except by a partnership of democratic nations’ and that the US were glad to fight ‘for the ultimate peace of the world and for the liberation of its peoples. […] The world must be made safe for democracy.’ 39 While this early version of using force to establish Kant’s vision of a perpetual peace has fallen off the radar amidst and after the Second World War, it gained new momentum during the Reagan presidency when WMichael Reisman provided, among others, the doctrinal background for the US operations in Latin America 40 by arguing that the blockade in the Security Council called for a re-interpretation of the prohibition on the use of force. Given that there was no point in resorting to the collective security system, states were (again) allowed to self-help. The exceptions provided in the Charter were rendered irrelevant, and thus the use of force had to meet (two) different criteria: it had to ‘enhance’, first, world order and, second, ‘opportunities for ongoing self-determination.’ 41 In essence, this assumption amounted to declaring the violent replacement of oppressive regimes with democracies as perfectly legal since Article 2(4) and international law in general rests on and has to be interpreted in accordance with the ‘key postulate of political legitimacy in the 20th century’: the ‘basic policy of contemporary international law has been to maintain the political independence of territorial communities so that they can continue to express their desire for political community in a form appropriate to them.’ 42 Yet, this line of argumentation was rejected both in theory and practice; the US military operations undertaken in the name of self-determination were condemned by the vast majority of the world community, 43 and Reisman’s editorial comment triggered a forceful response by Oscar Schachter, who inter alia argued that the ineffectiveness of the Security Council and the accompanying importance of self help measures could not be expanded towards the use of force for non-defensive purposes taken to impose a certain regime type on another state: in particular, the ius cogens status of the prohibition on the use of force excludes such a radical re-interpretation. 44 Implicitly drawing upon the older discussion of war as being subjectively or objectively just, the decisions to intervene in the name of democracy 39 Woodrow Wilson, War Messages, 65 th Cong, 1 st Session Senate Doc No 5, Serial No 726, Washington DC, 2 April 1917. 40 See the sources mentioned supra n 24. 41 W. Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2(4) (1984) 78 The American Journal of International Law 642. 42 Ibid , 643. 43 See the discussion in Brad R. Roth, ‘Governmental Illegitimacy Revisited: ‘Pro-Democratic’ Armed Intervention in the Post-BipolarWorld’ (1993) 3 Transnational Law and Contemporary Problems 481, 484-93. 44 Oscar Schachter, ‘The Legality of Pro-Democratic Intervention’ (1984) 78 The American Journal of International Law 645.

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