Unilateral action and the transformations of the world constitutive process: the special problem of humanitarian intervention

Abstract

'Unilateral actions' are taken by an unauthorized participant who contends they are, nonetheless, lawful. The lawfulness of such actions must be examined as a constitutive question before one proceeds to determine whether a particular action fulfilled the substantive criteria of lawfulness. Lawfulness is a function of constitutive structure. In coarchical systems without hierarchical institutions, unilateral action is perforce the mode of decision. In constitutive structures that include generally or intermittently ineffective hiearchical institutions, the lawfulness of unilateral action is more complex and unilateral action becomes normatively ambiguous as a result of the cognitive dissonance caused by the decalage between substantive lawfulness and procedural unlawfulness. In constitutive structures that incorporate effective decision institutions, unilateral action is presumptively unlawful. The normative ambiguity of unilateral actions in contemporary international law arises from the regrettable but acknowledged intermittent ineffectiveness of decision institutions. The appropriate remedy for this problem is to make the institutions effective.