Brisbane, Australia, 23rd November, 2014 (Alochonaa): The principle of non-intervention in the affairs of states has diminished in status since the end of the Second World War in 1945. The advent of international humanitarian law with the ‘crimes against humanity’ charges at the Nuremburg Trials and subsequently confirmed in other ‘War Crimes Tribunals’ marks 1946 as ‘a pivotal moment in the historical effort to extend human rights protections under international law to all individuals on the globe’ (Rochester, 2008, p149), at least in theory. Since 1945, the international political system has experienced a bipolar ‘Cold War’ between competing superpowers, followed by the current unipolar world order that evolved after the collapse of the Soviet Union in 1991. In the contemporary world, principles such as the inviolability of state sovereignty now competes with a range of issues of which principally is human rights, but also includes the emerging human rights, inter-governmental organisations, such as the United Nations, and even the emerging global economy (Shimko 2008, p7). This progression has led to ‘the idea that human beings have rights as humans is a staple of contemporary world politics’ (Vincent 1986, p7).
This is not to say that sovereignty is no longer the basis upon which the state-centric international system is built upon (Griffiths 2011, p72). Despite this underpinning, ‘in spite of its non-binding legal status, the Universal Declaration on Human Rights has had a considerable normative impact’ (Armstrong et al 2010, p156). The Universal Declaration on Human Rights of 1948 highlighted the post-war importance of human rights held by liberal-democratic nations in light of the atrocities committed by the defeated Axis powers during World War Two (Stern 1995, p77). This was also the first, and arguably the most profound step towards the normalisation of humanitarian international law, by introducing limits on the use of force by sovereign states in their internal disputes (Rochester 2008, p152). This has culminated with the formation of emerging diplomatic norms such as the Responsibility to Protect, otherwise known as R2P.
Prior to World War Two the ideal of placing limits on sovereignty was already apparent, however not universally applicable or practiced, just as the actual principle of sovereignty itself (Rochester 2008, p113). Such thinking can be seen in the Kellogg-Briand Pact of 1928, that attempted to outlaw war between sovereign states for all reasons, even those considered humanitarian by today’s standards. Non-interventionist principles can also be seen in the muted criticisms of ineffectual League of Nations and the democratic states during the 1930s against the forced famine in Soviet Ukraine, the Japanese atrocities against Chinese civilians and even the campaign of persecution enacted against the Jewish population of Germany under Hitler in the years leading up to the invasion of Poland (Hook 2005, p4).
Due to the general revulsion of the democratic world at the extent and reality of the ethnic cleansing of the Axis powers at the end of the Second World War there was a realisation that the principle of non-intervention when humanitarian values were at stake, was counter-productive to the overall goal of ensuring the general peace itself was kept (Rochester 2008, p99). Indeed the non-interventionist ‘appeasement’ policies of Great Britain and France during the 1930’s in their ill-fated attempts to maintain the European general peace had been discredited due to its failure in containing the threat posed by Nazi Germany. As a result:-
‘The gradual erosion of national sovereignty since the era of the Kellogg-Briand Pact of 1928 has led to a kind of dialectical redefinition of the basic norms of international law: while the right to wage war was no longer considered a prerogative of the sovereign state and national sovereignty was perceived as being limited by the norms of fundamental human rights, the modern doctrine aimed at highlighting the global primacy of human rights led to a new proclamation of a jus ad bellum in regard to the enforcement of those very rights’ (Köchler 2003, p1).
While ‘the basic norms in the Universal Declaration on Human Rights and the main [humanitarian] international institution, the UN Human Rights Commission has been around since 1948, and the main treaties have been in force since 1978’ (Risse et al 1999, p31, parenthesis added), it’s only really since the collapse of the bipolar international order of the Cold War-era that humanitarian interventionism has become a more broadly accepted diplomatic norm (Köchler 2003, p38). This is largely the result of the competing ideologies of the two superpowers of the Cold War-era, ensuring that ideals of national security trumped those of universal human rights (Shimko 2008, p44).
This did not mean that there wasn’t any interventions committed during the Cold War, just that humanitarian issues were usually used only as a secondary justification for action, rather than the primary motive for intervention in the first place (Shimko 2008, p199). This practice in fact has continued to an extent as ‘governments might accept the validity of human rights norms, but still continue to torture prisoners, or detain people without trial and so on’ (Risse et al 1999, p31). The contemporary unipolar world order has allowed for the more frequent use of humanitarian concerns as justification for intervention, which in turn has led to a growing normalisation of the issue under contemporary international law (Armstrong et al 2010, p179). This was seen with the United Nations Security Council authorising action in support of the rebels in Libya to protect Libyan civilians from further abuses by their government (Patrick 2011).
Sovereignty however continues to pose the principle stumbling block to the enforcement of humanitarian international law on a consistent basis (Köchler 2003, p251). This is largely the result of the ‘international system being inherently decentralised, anarchical polity lacking any hierarchical, overarching, world government with whatever order existing on states agreeing to form rules and institutions’ (Rochester 2008, p149). The sole superpower, the United States, is militarily dominating in every field and accounting for almost 50 percent of global defence spending (Zakaria 2009, p181). Despite this obvious overall position of power, the continued refusal of American leaders to recognise the supremacy of international law, as many of their European allies have, ‘is not about the assertion of US power, so much as the expression of US exceptionalism’ (Armstrong et al 2010, p294).
‘Proponents of the doctrine of humanitarian intervention assert that international law allows states, in exceptional circumstances, to intervene militarily to avert ‘grave humanitarian crisis’ or ‘humanitarian catastrophe’ (Duffy 2005, p179). This way of thinking has further developed into the Responsibility to Protect principle in recent years. However there is an issue of apparent double standards as the five permanent members of the United Nations Security Council, and their close allies, are effectively placed above prosecution due to their veto rights on resolutions authorising force or sanction. As a result ‘the UN Charter itself is fundamentally flawed because of the hidden reintroduction of a factual jus ad bellum as a special privilege enjoyed by the most powerful countries of the international community (Köchler 2003, p286). This accounts for why action against Libya was authorised by the Security Council, and therefore of solid legal nature but actions such as the NATO campaign against Serbia in 1998, the American invasion of Iraq in 2003 or the Russian invasion of Georgia in 2008 remain of more dubious legality due to their lack of such Security Council authorisation, despite the lack of subsequent action taken against the interveners (Zweifel 2006, p87).
‘Although international order and the existing power structure should be kept analytically separate and visible, international order is bound to reflect the prevailing power structure’ (Griffiths 2011, p106). What in effect occurs is that the very institutionalisation of state-based power politics in the United Nations, especially in the Security Council, while trying to uphold human rights, works against the universal application of those same human rights to all peoples (Orford 2003, p45).
‘Since the Cold War’s end, the Security Council has frequently invokes its authority under Chapter VII to intervene in situations deemed threatening to international peace and security’ (Mingst & Karns 2000, p100). This trend in itself has further legitimised the intervention into sovereign states that would have been considered a heinous violation of international norms in 1945 (Shimko 2008, p42 – 46) ‘The argument that the freedom of a dictator to murder, oppress and steal from his fellow citizens is his legal right under a strict application of the principle of non-intervention is no less a part of the normative framework of ‘old’ international law that the right to imperial conquest or the mission to ‘civilise’’ (Armstrong et al 2010, p286).
The global economy emerging due to the contemporary phenomenon of globalisation is further undermining the now outdated concept of non-interventionism.
‘There is no doubt that the process of globalisation is transforming traditional conceptions and constructions of sovereignty; the conventional image of a sovereignty associated with exclusive jurisdiction […] is no longer theoretically or empirically serviceable in the face of the internationalisation of economic and social activity’ (Jayasuria 1999, p425, parenthesis added).
The disruption to traditional notions of sovereignty that is greatest to date due to globalisation is the loss of the state’s authority to effectively regulate their national economies (Anderson, ed. 2002, p8). ‘The fear is that nations are gradually losing the ability to determine their own fate as the forces of globalisation shift the focus of meaningful economic decision making to other entities’ (Shimko 2008, p215).
The global nature of contemporary media and communications, most notably the Internet, has helped lead to this level of economic globalisation (Shimko 2008, p221), alongside the growing awareness of the general populace about events around the world. This has further reinforced the humanitarian interventionist movement (Patrick 2011). Whereas the Universal Declaration of Human Rights of 1948 was the first real step towards normalising the principle under international law (Rochester 2008, p152), it has been the driving force of the global media, the so-called CNN effect, that has highlighted the issues for the general populace and has provided the impetus for further limitations to state sovereignty (Robinson 2002, p46).
Economic interventionism for humanitarian purposes has grown in popularity in the post-Cold War world. This is due to the growing usefulness of such sanctions in the new globalised economy due to the increased interdependence of sovereign states that it has helped produce (Rochester 2008, p 141). As such, economic measures against questionable regimes have been employed as an attempted soft power coercion tool to curtail potential human rights abuses (Shimko 2008, 89).
The use of economic sanctions, before military intervention is also an expression of the Just War Theory, in which war should always be considered a last resort. If the last resort is required, with the emergence of humanitarian international law post-1945, there is now the existence of the humanitarian jus ad bellum (justice of war) in Just War Theory, on the assumption that such intervention is just (Griffiths 2011, p172-174). Just War Theory and humanitarian concerns have also influence the way war is conducted by those powers that have liberal tendencies. During World War Two, there was a sense of ‘Total War’ where civilian populations became legitimate targets and the widespread carpet bombing of cities was conducted by both sides (Hook 2005, p42 – 59). With the advent of contemporary humanitarian norms such practice is now considered against the principle of jus in bello (justice in war) and thus every effort is made to avoid such cases in modern warfare (Griffiths 2011, p173). This thought can be seen in some of the criticisms levelled against the Western powers during the Libyan intervention of 2011 when civilians were killed due to mistakes in the conduct of the bombing campaign (Karpova 2011).
The International Criminal Court based in The Hague, is another expression of the growing acceptance of interventionism based on humanitarian principles (Rochester 2008, p159). ‘It is only through the full integration of the system of ‘international criminal justice into the body of norms of general international law that the remnants of this absolutionist doctrine can be eradicated from present state practice’ (Köchler 2003, p3). Despite this the United States, for example, has failed to ratify the Rome Statutes for joining the International Criminal Court. ‘What alarmed US-policy makers was the proposal that the ICC be able to operate independently of the UNSC’ (Armstrong et al 2010, p292). No doubt this sentiment is shared by Russia and China who along with the Americans are not keen to see any restraints placed upon their own sovereignty (Shimko 2008, p275).
‘The concept of ‘national sovereignty’ must be redefined in light of a general system of norms that is based on the universal validity of human rights. As norms of jus cogens, human rights at the roots of national legal systems as well as the international legal order, and thus transcend the confines of traditional state-centred international law’ (Köchler 2003, p4).
Since 1648 the principle of sovereignty has largely underpinned the international order (Griffiths 2011, p72). ‘Although, like all principles, sovereignty at times has been violated and unevenly practiced, it is a tenet so sacrosanct that it may be the only value which all [then] 192 United Nations members agree’ (Rochester 2008, p149, parenthesis added). Therefore the potential loss of sovereignty will be closely watched and even disputed and challenged by many as the principles of state supremacy and the global community or humanity compete against each other. This is seen in the fact that ‘most human rights instruments in international law are designed to restrain the State rather than the individual human being from violating human rights’ (Sunga 1999, p1).
That aside, there is a growing realisation that ‘a statist agenda, derived from realism, cannot today cope with the multiple dangers bearing down upon human society globally’ (Booth, ed. 2005, p7). There is every chance that as the inherently interdependence of all sovereign states will produce other justifications from intervention in the 21st century, beyond that of widespread human rights abuses (Shimko 2008, p345 – 352). For example with the normalisation of humanitarian law, in the future acts of widespread environmental degradation that endangers human life or overall peace and security could potentially become yet another acceptable jus ad bellum.
‘Human rights norms have a special status because they both perceived rules for appropriate behaviour, and help define identities of liberal states’ (Risse et al 1999, p8). As such there are several approaches to strengthen the contemporary, multilateralism that encourages such norms, ‘but none of them will be successful unless the United States commits itself to the project’ (Griffiths 2011, p109).
“What has been the most striking in the Libyan case if the Obama administration’s vocal leadership in seeking to consolidate ‘Responsibility to Protect’ as a vital global norm’ (Patrick 2011). This shows that America is increasingly stepping away from the unilateralism that peaked with the Iraq invasion in 2003 (Zakaria 2009, p216-17). Invariably this will produce greater legitimacy overall for humanitarian intervention, just as Gaddafi’s ouster did three years ago (Patrick 2011), despite the fact that further humanitarian action will likely be ‘dictated by the prevailing constellation of interests, not by lofty humanitarian principles’ (Köchler 2003, p276). Due to the unreconciled relationship between state sovereignty and human rights in the international system, interventions are likely to remain contentious when competing national interests combine to prevent their legitimisation in the United Nations (Orford 2003, p44 – 47). ‘The missing like between the doctrine of humanitarian intervention […] and a system of international law that desires to be universal at the same time […] lies in the implementation of a doctrine of universal jurisdiction’ (Köchler 2003, p2).
So what can be done to reconcile the conflict between sovereignty and human rights? ‘The doctrine of internationally protected human rights offers one of the most powerful critiques of sovereignty as currently constituted’ (Sikkink 1993, p411). Little thus can be done past recognising one as holding superior value and status in international law.
‘[As] a political idea describing the locus of ultimate legitimate authority in national society. Sovereignty has been transmuted into an axiom of the inter-state system, which has become a barrier to international governance, to the growth of international law, and to the realisation of human values’ (Henken 1994, p31, parenthesis added).
Therefore it must be said that if international society is to serve humankind instead of, the human-devised constructs of ‘nation states’, then ultimately sovereignty must submit to the primacy of human rights.
With the changes in the international system since the surrender of Germany and Japan in 1945 and the realisation of the extent of their crimes against humanity, the principle of sovereignty being absolute and non-intervention have begun to be supplanted by those of human rights (Merry, 2006, p6). State-sovereignty has however continued to persist, especially within the United Nations Security Council, and its implied subservience to the veto-wielding permanent member (Orford 2003, p46). Indeed the history of the United Nations Organisation has given ample proof of the supremacy of the power politics over the international rule of law’ (Köchler 2003, p285). Due to this there will be continued competition between sovereignty and human rights despite the essential delegitimisation of non-interventionism since 1945.
*Liam Maddrell is a member of the Alochonaa Editorial Board. He is a PhD candidate at the Centre of Global Governance at Griffith University in Queensland Australia.
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