Fox: Humanitarian Occupation

Gregory H. Fox (Wayne State Univ. - Law) has posted Humanitarian Occupation (Legal Theory, forthcoming). Here's the abstract:

State autonomy is said to be a fundamental principle of international law. At the heart of the autonomy principle lies a guarantee that nations will enjoy self-government - the capacity to make political, social, economic and other policy decisions without external interference. Of course, autonomy is by no means absolute: numerous rules in the international community, from human rights to environmental standards to principles of democratic governance, now circumscribe the range of policy choices open to state. But despite the decreasing number of issues subject to exclusive domestic jurisdiction, international law has generally not been understood to reach a state's capacity for self-government.

That assumption is now under challenge. In Kosovo, Bosnia, East Timor and Eastern Slavonia, with important variations in each case, international actors have effectively become national governments. Moving beyond condemnation of particular policies or practices, and well beyond mediation between parties to civil wars, beginning in the mid-1990s, the United Nations and other international bodies entirely replaced the legal authority of national governments in these territories. The veil of state sovereignty was fully pierced in each case. No national governing authorities stood between the legal power of international administrators and the individual citizens over whom they ruled.

This paper is the Introduction to a book-length examination of these episodes. It is entitled "Humanitarian Occupation." The book seeks to answer two fundamental questions about international territorial administration. First, why has the international community taken the extraordinary step of governing national territory? I argue that a series of legal assumptions about the nature of the state - and in particular the nature of its population and borders - have ruled out violent changes to existing populations and territories. International administration can be seen as a reification of these norms; an effort to hold existing states together against various forms of dysfunction that international law now seeks to prevent and, where possible, reverse.

Second, the book explores the legal justification for the administrations. There are three standard explanations: the consent of the target state; a resolution of the UN Security Council under Chapter VII of the UN Charter; and the international law of occupation. I argue that important limitations and incoherencies mark each of these theories. These stem, I argue, from the disconnect that occurs when norms designed to regulate states acting in mutual competition are applied to international organizations, whose acts represent instead consensus among their member states.