International Civil Disobedience: Unauthorized Intervention and the Conscience of the International Community

Nathan J. Miller

This Article offers a theory of international civil disobedience under which a state could stage an unlawful military intervention to stop massive human rights abuses without sacrificing its respect for the rule of international law—if the intervention conformed to the characteristics that distinguish international civil disobedience from other types of illegal conduct. These are publicity, conscientiousness, a preference for non-violence, and willingness to accept the legal consequences of the disobedient act. These requirements collectively set an appropriately high bar for the use of force outside the constraints of the Charter of the United Nations. A state meeting that bar, however, would have a claim to moral standing unavailable to other violators of the prohibition of the use of force.

The demands of public morality and the demands of international law conflict in cases where the former compels military intervention to end mass atrocities and the latter forbids that intervention. On most accounts, concerned states would therefore be forced to choose between two unattractive options. Violating the prohibition of the use of force would weaken a foundational norm of the modern international system and undermine the claim of international law to be able to constrain the behavior of states. Refraining from intervening despite strong moral reasons to do so would de-legitimize international law, showing it to be a system unable to implement the fundamental principles on which it claims to be based. This Article offers a potential solution to that dilemma.