Undermining sovereignty

Not before time, the zeitgeist has begun generating discussion about the future role of the United Nations, notions of national sovereignty on which the existing international order is based, and principles that might underpin future humanitarian interventions that challenge existing ideas of sovereignty. Events in Cambodia, Rwanda, Bosnia, Kosovo, East Timor and Iraq have finally caused at least some people to begin reflecting on fundamental underlying issues of principle.

Of course, much of the blogosophere discussion has been a tad superficial. For example, Hugh White opined in the SMH a couple of days ago that the solution to seemingly intractable US problems in Iraq is to cede control to the UN:

The solution: Iraq needs the power of the US and the credibility of the UN. The US must sustain its huge commitment of resources to Iraq, but put the UN unambiguously in charge of the whole operation.

Tim Blair immediately returned fire with a predictable response:

Not mentioned at all by White is a certain $10 BILLION OIL-FOR-FOOD SCANDAL. Presumably the Australian Strategic Policy Institute doesn’t take into account such trifles when determining an organisation’s credibility.

Tim might also have mentioned the UN’s fairly patchy record in administering peacekeeping efforts. It didn’t do too bad a job in East Timor and Cambodia, but Rwanda and Bosnia were both disgraceful fiascoes, and numerous other interventions have been dubious successes at best.

The existence of UN Security Council vetoes for the five permanent members, and the preponderance of undemocratic third world regimes in the General Assembly, all mostly pursuing the narrow self-interest of their ruling cliques most of the time, makes the UN a very imperfect vehicle (at best) for fostering international peace, security and effective protection of human rights.

On the other hand, what reasonable alternative is there than some sort of authoritative internationally-sanctioned basis for humanitarian (pre-emptive defensive) intervention? I don’t accept the standard leftie view of America as the Great Satan whose every action is to be conclusively assumed to be evil. Let’s put aside for a moment the dubious motivations of the neo-cons in the Bush Administration; the dodgy intelligence assessments; the apparent determination of Bush himself to invade Iraq irrespective of WOMD considerations or any connection between Iraq and September 11; the muddled progress towards reconstruction; and the appalling treatment of Iraqi prisoners. Let’s assume that US intentions were predominantly benign. Even if that was true, you can’t seriously deny the general proposition that the US (like any other nation) is prone to hubris, arrogance and incompetence, or that its perceived self-interest often won’t coincide with the interests of others (or the world as a whole, to the extent that’s a meaningful concept).

At the end of the day, abandoning attempts to develop the UN (or some other broad multi-lateral mechanism) as a viable source of international authority, and happily embracing the notion of the US as a trustworthy benevolent world governor, is stupid and short-sighted. It’s simply an aspect of Lord Acton’s old dictum that “Power tends to corrupt, and absolute power corrupts absolutely“. That insight (or rather John Locke’s earlier version of it) formed the basis of the doctrine of separation of powers that underlies the US Constitution, and it’s no less necessary internationally in a 21st century world where the US is arguably the only nation possessing the military and economic muscle to impose its will on other nations. Unless appropriate checks and balances are constructed, we’ll inevitably end up with a malign despotism.

Courting Disaster is a blog I’ve only recently discovered. It’s apparently written by a young Australian lawyer currently undertaking post-graduate studies at Cambridge. He posted a fascinating item yesterday about international law:

You cannot have a society without it beginning to generate law, and you cannot have law without a society. International law, the law of the international community, is the law of a society that refuses to see itself as a community.

It is a society that admits its interdependence, but refuses to admit it has any social contract, that in fact sees “social contract” as an oxymoron. It will accept social but unenforceable aspirations (the Universal Declaration of Human Rights) or contractual relations (WTO trade regimes) but remains wedded to the supposedly total freedom of “state sovereignty”.

It’s a society that refuses to see itself (despite the UN Charter) as having a constitution or separation of powers (the International Court of Justice having basically held that it cannot review decisions of the Security Council to establish whether or not they are legal.)

Here’s a simple, old idea. A true society aims at the good of all its members (Aristotle). If all states really were equal in resources, state sovereignty might be an efficient way of aiming at the common good: states are manageable units that might sensibly look after their local people. Letting such equals contract among each other might bring about a civilised and balanced world.

However, to treat as equal that which is not is a form of injustice. As states are not equal, state sovereignty (as a theory upon which to base a society), therefore, promotes injustice.

The only just form of international society would have to start from the premise of a universal society of mankind, and assume that the underlying principles of international law were its unwritten constitution. (To some extent Kant’s cosmopolitanism might back this, but you really need to look to early international lawyers like Suarez and Wolff.)

On such a view, states would be holding delegated power from universal society to govern individual countries on trust for all mankind.

If people actually believed this, it would be an interesting world.

Courting Disaster focuses on what I see as a critical aspect of the current dilemma facing international law, at least in its peacekeeping/creation and humanitarian aspects: namely the (arguable) impossibility of a just international order that’s centrally based on the primacy of national sovereignty, and which always subordinates humanitarian principles to sovereignty. Ronli Sifris also attempts to grapple with that issue in a fascinating article titled “Operation Iraqi Freedom: United States versus Iraq – The Legality of the War” in the Melbourne Journal of International Law. Rather than paraphrase or discuss it, I’m going to be lazy (because I have to prepare for a lecture) and just extract a slab of it (though not enough to breach copyright). The whole article is well worth reading:

The issue of whether humanitarian intervention is legal gives rise to many complex considerations. Even if one assumes that the establishment of a norm of humanitarian intervention is justified on moral, philosophical and practical grounds, one must nevertheless accept that humanitarian intervention is not clearly legal pursuant to the words of the UN Charter. This conflict has resulted in the positing of difficult philosophical questions. Cassese has asked:

should one sit idly by and watch thousands of human beings being slaughtered or brutally persecuted? Should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation? Or, rather, should respect for the Rule of Law be sacrificed on the altar of human compassion?

An honest appraisal of the law reveals that the UN Charter probably does not allow for humanitarian intervention as an exception to the prohibition on the use of force. However, the NATO intervention in Kosovo is illustrative of the fact that state practice and belief are developing in such a way as to indicate the beginnings of a custom allowing for humanitarian intervention in certain circumstances.

D The Fundamental Criteria of a Future Norm of Humanitarian Intervention

ICISS has supported the application of the doctrine of humanitarian intervention in exceptional circumstances that ‘shock the conscience of mankind’. However, according to ICISS, for humanitarian intervention to be an appropriate mechanism of resolving a situation where fundamental human rights are being violated, a number of criteria must be satisfied. First, the element of ‘right authority’ must be satisfied. Second, there must be ‘just cause’ to intervene. Third, the intervening state must intervene with the ‘right intention’. Fourth, humanitarian intervention must be a measure of ‘last resort’. Fifth, proportional means must be used and finally, there must be reasonable prospects of success.

ICISS is clear in its view that whilst the preferable means of initiating a humanitarian intervention is with the authorisation of the UN Security Council ¢â¬â and if not the Security Council, then the General Assembly ¢â¬â it does not discount the possibility of a coalition of states engaging in a legitimate humanitarian intervention, even if that coalition does not constitute a recognised international organisation.

ICISS has determined that, to justify a breach of the principle of non- ntervention, there must be a large scale ‘loss of life’ or large scale ‘ethnic cleansing’. These terms are broadly defined. Therefore, it is submitted that in light of the facts set out above and other evidence that clearly establishes the brutal nature of the Iraqi regime, the ‘just cause’ criterion can be made out as regards the use of force against Iraq.

However, it is doubtful whether the ‘right intention’ criterion can be made out, as the primary purpose of the war against Iraq was to remove the perceived threat of WMD and terrorism. US Deputy Defense Secretary Paul Wolfowitz has stated that, ‘for bureaucratic reasons, we settled on one issue, weapons of mass destruction, because it was the one … everyone could agree on’. Whilst it may have been a subsidiary purpose, the main purpose of the use of force against Iraq was not ‘to halt or avert human suffering’. If the US was primarily concerned about halting human rights abuses in Iraq, it would not have knowingly allowed devastating human rights abuses to occur following the Gulf War.

Further, the US has not illustrated that ‘every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis’ was explored. The covert nature of the relationship between Iraq and al-Qaeda meant that conventional political solutions were not available to extinguish the threat of terrorism. However, the same reasoning does not apply to the halting of human rights abuses which were relatively overt and, to a large extent, undeniable. The Kosovo crisis is an example of a situation whereby ‘peaceful means … had been tried and exhausted by the various countries concerned, through the negotiations promoted by the states comprising the Contact Group for the Former Yugoslavia, and at Rambouillet, and later Paris’. In contrast, the US has not shown that it engaged in extensive negotiations in an attempt to improve the human rights predicament in Iraq.

Moreover, whilst the military intervention in Iraq clearly stood ‘a reasonable chance of success’, it is unlikely that the scale and intensity of the intervention would be regarded as ‘the minimum necessary to secure the humanitarian objective’, especially given that a considerable number of Iraqis were killed and injured during Operation Iraqi Freedom. In addition, as the US did not evince a clear commitment to resolving the human rights crises in Iraq by peaceful or less forceful means, it has not demonstrated that military intervention in Iraq was the mechanism of least gravity and intrusiveness necessary to bring human rights violations to a halt. Therefore, the US did not discharge its onus of illustrating that the intervention in Iraq was a genuine humanitarian intervention pursuant to the ICISS criteria. Consequently, it is reasonable to presume that even if a norm of customary international law providing for humanitarian intervention had already crystallised, the use of force against Iraq would not fall within the necessary criteria for establishing a legal humanitarian intervention. …

E A Different Conception of Humanitarian Intervention

In his 2003 State of the Union address, President Bush proclaimed, ‘[i]f Saddam Hussein does not fully disarm, for the safety of our people and for the peace of the world, we will lead a coalition to disarm him’.

Humanitarian intervention is traditionally understood to be ‘coercive action against a state to protect people within its borders from suffering grave harm’. In declaring that the use of force against Iraq would be a measure employed not just to protect US citizens and Iraqis, but to protect the citizens of the world, the US President was advancing a relatively novel approach to the traditional doctrine of humanitarian intervention. Such an extension of the traditional doctrine would result in the notion of humanitarian intervention including not just interventions to protect people within a state from suffering grave harm, but interventions to protect the global community from suffering grave harm. As discussed above, WMD can be speedily delivered and have the potential to inflict horrendous damage with a single strike. As such, the use of WMD by a state of concern or a terrorist group linked with such a state would potentially constitute a war crime as well as a crime against humanity.

Article 7 of the Rome Statute of the International Criminal Court details the elements of various crimes against humanity. The use of WMD by a state of concern, or a terrorist group linked with such a state, could potentially constitute the crimes against humanity of murder, extermination, torture, persecution, and other inhumane acts. Article 8 of the Rome Statute details the elements of various war crimes. The delivery of WMD by a state of concern or a terrorist group linked with such a state, in a situation of international armed conflict, could potentially constitute numerous war crimes, including wilful killing, inhumane treatment, wilfully causing great suffering, attack of civilians and excessive incidental death, injury, or damage. It could also potentially constitute the war crimes of biological experiments, employing poison or poisoned weapons, and employing prohibited gases, liquids, materials or devices.

Given the gravity of the offences, it is conceivable that the mere reasonable subjective apprehension of a state that a state of concern possesses WMD and may use those weapons, or allow terrorists to access them, is enough to constitute a threat to international peace and security. For example, it is arguable that by invading Iraq the US responded to a threat to international peace and security based upon the reasonable belief of the US that Iraq possessed WMD and would use those weapons. On this basis it is contended that a change is taking place whereby the mere possession of WMD by a state of concern may in time be sufficient to constitute a threat to international peace and security which is serious enough to justify a military intervention aimed at protecting the international community and ensuring that the threat does not come to fruition.

After Kosovo, the world began to consider seriously the legality of a humanitarian intervention aimed at protecting the human rights of individuals within a state, where that state is responsible for the commission of grave human rights abuses. After Iraq, the world must consider the possible future legality of a humanitarian intervention aimed at protecting individuals in any state, on any continent, from being subjected to the devastating consequences of successfully delivered WMD. Such a humanitarian intervention currently does not constitute a custom of international law, but the words and actions of the US and its allies go some way towards encouraging the development of such a custom. …

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2021 years ago

Why is the US going to accept all these restrictions and then suddenly commit large numbers of troops to peacekeeping operations when it suits everyone else?

I don’t think international law is the answer. I don’t know what percentage of GDP the US spends on defence, but perhaps if all other countries spent just as much we might not have to go to the US so often for assistance and wouldn’t then have to compromise ourselves when the US does something we don’t like. The US’s power is relative to everyone else’s so don’t we have to accept a fair degree of blame for falling so far behind?

To me it seems people ask too much of the US and then complain when seeks a bit of leeway from the rest of us.

And I know I’m simplifying international diplomacy a fair bit here.

2021 years ago

It’s a fair point TJW, but the flipside is the present US administration take a “we have the means, we call the shots” approach.

Which is fine if you agree with everything they do and they infallibly promote the interests of the world.

The problem with the “new” humanitarian intervention is it strays towards being pre-emptive self-defence with a cuddly face. (The recent “Blair doctrine” is a good example.)

Once you allow pre-emptive self-defence as an argument it can be claimed by Arab states against Israel, China against Taiwan, North Korea against South Korea, etc etc.

My issue with the new international order is that in a unipolar world there is no check on the US at all. If it undermines the “rules of the game” then it creates an incentive for others to opt out of international law as well.

Sure, international law is breached, but it is more often complied with because all players in the game recognise that it does promote stability and their long-term interests.

I worry that in “remaking” the rules the US risks making the world a much less safe and stable place and exacerbating the very problems it is claiming to address.

PS Glad you liked my comment Ken. It appears to have drawn no comment at all back home, so it’s nice to know someone got something out of it.