bout de papier, Vol. 18, No. 1 (2001) — Spring 2001 // Printemps 2001, pp. 37–39
The North Atlantic Treaty Organization (NATO) bombing of Yugoslavıa and Kosovo have long since ceased. But the concerns about the legality and morality of attacking a sovereign state which, when the attacks were launched, wasn’t threatening its neighbors, remain. But what is sovereignty and when, if ever, can it be violated?
Both the meaning and value of sovereignty are still debated topics, among scholars, non-governmental organizations (NGOs), diplomats and governments. But despite being a much bantered about term, there is no universal consensus on what exactly it is and where it resides.
State sovereignty has been a main feature of the international system since the 1648 Treaty of Westphalia, which gave states a monopoly of coercion within their own territory and declared there was no source of authority above the state. Today, sovereignty generally means states don’t have to answer to any higher authority about matters that occur entirely within their territory, so long as they involve only their own nationals. Non-intervention is the correlative duty to sovereignty — a state must not intervene in matters that fall within the domestic territorial jurisdiction of another state. This has given non-intervention the status of an international norm. But, as Professor Jack Donnelly of the University of Denver argues, much of international relations involves powerful states using coercive economic, political and military means to shape the policies of less powerful states. And the post- Cold War era finds the world in a state of transition, caught between what Bobby R. Inman, Joseph S. Nye, Jr., William J. Perry and Roger K. Smith of the Aspen Strategy Group term “the old Westphalian system and an undetermined successor”
Of course, the basic structure of the international system continues to be anarchic, despite a wide variety of institutions and conventions aimed at bringing order to the chaos. States fend for themselves, with or without the cooperation of others, and strive to maintain their position in the system, writes Kenneth Waltz, professor emeritus at the University of California at Berkeley. With the end of the Cold War, states which had become lesser players and proxies to the two superpowers now have greater opportunities to assert themselves.
The United Nations Charter is somewhat contradictory on the matter of sovereignty, seeming to support both the traditional, Westphalian view (Chapter I, Article 2) and the contradictory view (Chapter VII, Article 39) that the Security Council has the right to determine what constitutes a threat to international peace and security, and how to deal with it. Chapter VII, Article 41 allows the Security Council to authorize diplomatic and economic measures to end such threats, while Article 42 allows it to authorize action, including military action, by air, sea or land. Nonetheless, conflicts between human rights abuses and the UN Charter have more often been decided in favour of non-intervention. What changed that was UN Security Council Resolution 688 of April 5, 1991, which allowed the Allied intervention in northern Iraq. It placed a higher priority on human rights than on national sovereignty and the attendant concept of non-intervention.
Humanitarian conventions (such as the establishment of the International Committee of the Red Cross (ICRC), the first Geneva Conventions of 1864, the Hague Convention and Rules of 1899 and 1907, and the four Geneva Conventions of 1949 and two additional protocols of 1977) respect national sovereignty in that they are only legally binding if signed by states, argues Guy Hermet of Doctors Without Borders. For the implementation of such agreements, it matters little whether sovereignty is exercised wisely or with astounding cruelty. On the other hand, states give up a measure of sovereignty by signing such agreements. More recently, restrictions have been imposed on the concept of sovereignty in the name of respect for individuals, nature or the environment. It appears the tide is turning toward humanitarian concerns at the expense of claims of sovereignty.
But where to draw the line? The arguments for altering the traditional, Westphalian view of sovereignty are compelling, if not always clear-cut. They all include the belief that states’ rights are waning. For instance, while recognizing the continuing importance of the state as the primary unit of international affairs, former UN Secretary General Boutros Boutros- Ghali nonetheless argues that the time of absolute and exclusive state sovereignty has passed, if it ever existed. It’s not a new idea.
Natural law theorist Hugo Grotius (1583- 1645) argued that exclusive domestic jurisdiction stops when outrage upon humanity begins. The problem is, we are often selective about our outrages. Turkey, an American ally, oppresses its Kurdish population and we do nothing; the Serbian regime in Yugoslavia, a Russian ally, oppresses its ethnic Albanian population and we spring, albeit in slow motion, into action.
Some NGOs argue that victims’ rights, enshrined in ICRC practice and the UN Charter, transcend the concepts of sovereignty and non-interference in domestic affairs. When states ratified the UN Charter, they agreed to abide by the Security Council’s own interpretation of its functions, argues Thomas G. Weiss of Brown University. This means that claims of national sovereignty become irrelevant once the Security Council decides to intervene. The UN was set up this way in order to be different from its predecessor, the League of Nations, through its ability to intervene economically and militarily to enforce international decisions. Of course, there is rarely unanimity and geopolitics predominate, leading to unauthorized actions, like the NATO strikes on Serb targets.
Former French Foreign Minister Roland Dumas has argued that the international community has the right to intervene in humanitarian crises (including repression, civil disorder, interstate conflict or natural disasters), even if that means violating national boundaries. Of course, one wonders what France would say if an Islamic state used that rationale to argue for the right to intervene in France to alleviate the discrimination and police brutality that French Muslims reportedly suffer.
Some argue that disregarding sovereignty is a means for powerful states to dominate the weak. But, as Andrew S. Natsios, former vice president of World Vision and former President Bush’s special coordinator of Somali relief, points out, many developing countries, those most often politically sensitive to issues of sovereignty, voted for intervention in support of the operations in Somalia and northern Iraq. Inaction means intangible but vital social values can be destroyed in a few vicious years but the psychological scars remain long after the fighting stops. Furthermore, anarchy can spill across borders, potentially endangering regional stability and international peace.
Internal conflicts constitute many of today’s wars. “There is a strong body of international law regulating the conduct of armed conflicts between or among states, but a far weaker body governing the conduct of internal wars and domestic violence?” Brown University’s Weiss writes. Intervention was never illegal, he argues, but was considered a logical extension of the concept of territorial sovereignty, and the basis of interstate relations and the UN Charter. But with the end of the Cold War, the world is moving away from the idea that state sovereignty justifies anything in the name of state interest. “Sovereignty is no longer a safe diplomatic sanctuary when abuse of civilians occurs,” Weiss adds.
University of Frankfurt political scientist Ernst-Otto Czempiel argues that society is the agent of sovereignty and the political system is its representative; therefore, foreign intervention doesn’t violate the sovereignty of the state but aims to re-establish the sovereignty of society. But what if the society backs a murderous regime? Is there then no basis for intervention, as society’s sovereignty is intact?
“Individuals have inalienable rights that must be observed and protected by all governments,” argues Barry M. Blechman, co-founder of Washington’s Henry L. Stimson Center. If this is the case, then all governments can be held to certain standards of behaviour involving democracy and basic human rights. Furthermore, when a country collapses into chaos, the international community has not only the right but the obligation to intervene on behalf of oppressed peoples and innocent bystanders.
Not so, argues American political scientist Caroline Thomas; there are no globally accepted human rights. She maintains that state sovereignty acts as a form of equality between all states, a vital component in a world where power tends to prevail. But it is also a theory that allowed states to turn a blind eye, for instance, to the genocidal brutality of the Khmer Rouge. Must we ignore atrocities so long as they don’t cross international borders? We see ourselves as moral beings; images of extreme suffering cause people to pressure governments to act. Furthermore, old notions of sovereignty may be inadequate in a world where states are no longer the only players in global relations, York University professor Robert W. Cox writes.
For some, it is the ways in which sovereignty is being eroded that is most disturbing. The industrialized, northern states have agreed to what Hermet of Doctors Without Borders calls voluntary, sovereign concessions to enhance regional ties “or as a result of the kind of ’private sovereignty’ exercised by London or Wall Street foreign exchange dealers when they bring western currencies to their knees.” It’s a different case in the south, where states have lost sovereignty involuntarily through what some see as the manipulation of the UN by northern states to legitimize their interference on the premise that the target state either no longer exists and so there is nothing to claim sovereignty over (as in Somalia) or is using its sovereignty in a criminal way (as in Iraq or Yugoslavia). In order to avoid public criticism, such interference is always publicly cloaked in the desire to protect human rights. Of course, having motives that are less than pure doesn’t discount the possibility of intervenors doing some good. For instance, Hermet argues that in the last century, when Britain, then the world’s foremost naval power, decided to stop and search foreign ships on the pretext of combating the slave trade, its real intent was to consolidate its world supremacy. The result nonetheless was the death of slave-trading and eventually of slavery.
In the end, there are no clear-cut solutions. Professor Michael Walzer of Princeton University urges us to remain skeptical. He offers this guideline by which to judge supposedly humanitarian interventions: “Intervening states must demonstrate that their own case is radically different from what we take to be the general run of cases, where the liberty or prospective liberty of citizens is best served if foreigners offer them only moral support.”
View the original scanned pages →
Originally published in bout de papier, Vol. 18, No. 1 (2001) — Spring 2001 // Printemps 2001, pp. 37–39. Read the rest of this issue →
