The Issues of Sovereignty and The Right to Humanitarian Intervention

Introduction

States should be permitted to use military force to end widespread and grave violations of human rights in other states, regardless of whether the state consents, firstly on the grounds that human rights should be prioritised over sovereignty for the sake of justice and fairness and secondly, the issue of abuse which is the second largest form of opposition can be dealt with using strict procedural requirements. Furthermore, although the right has no legal basis thus far, it could still develop through customary international law, as there is some evidence of the opinio juris element developing, and due to the fact that the issue regarding the Security Council veto will not be solved anytime soon, it is possible that more will agree that humanitarian intervention is de lege feranda and the right may become the third exception to the prohibition of the use of force.

Firstly, the right to humanitarian intervention without the consent of the state whose territory is crossed should exist despite it’s potential interference with the doctrine of sovereignty, as human rights, the U. N’s second greatest purpose after peace should be prioritised. Although state “sovereignty”, the main form of opposition to the right, is an essential doctrine in international law, granting protection from territorial invasion the protection of human rights is equally, if not more important, especially from the utilitarian perspective considering the current viridity of human rights violations. Examples include North Korea, where there is the torture and imprisonment of political opponents, and Yemen, where there are indiscriminate attacks on civilians by the military. To provide “happiness” for the highest number of people human rights must be protected, as when they are violated it creates the “reverse” pain and unhappiness, which is what utilitarianism seeks to prevent. Despite the U. N’s efforts to fulfil this secondary purpose, through the upholding of the Universal Declaration of Human rights 1948, enforced by the International Covenant on Civil and Political Rights, and providing aid, the UN cannot claim to be successful. Their clearest failure is the peacekeeping efforts in the two violations of the 1948 Genocide Convention: the genocide in Rwanda (Akayesu) and the genocide in Srebenica, Bosnia (Radislav Krstic) which have made the creation of this right a much more pressing issue.

The U.N is the only body legally allowed to intervene forcefully in accordance with Article 2(4) which has greatly contributed to world peace, and consequently, the U.N also has a responsibility to intervene when states who have consented to be bound by the charter violate it, in accordance with the rule of law. The U.N was therefore declared responsible for allowing the deaths of 800,000 in Rwanda for failing to prevent or mitigate the genocide. The independent report into the Rwandan genocide listed the lack of “political will” from the Security Council allow the use of force and the “chronic lack of resources” as the main causes of the catastrophic failure. Academic Piiparina noted that the UK and the US’s cost-effective approach resulted in “severe shortcomings in equipment, personnel, training, intelligence and planning.” The same mistakes of a lack of arms and political will occurred in Srebenica, Bosnia, a single year later. The lack of “consensus” of the Security Council, which prevents the use of force continues to be an issue, with Russia utilising its veto 14 times since 2011, preventing further action in their ally state Syria, despite over 400,000 deaths. Therefore, whether the U.N permits force or not depends entirely on the “bias” of the particular Member States in the Council at the time, whether they hold “sympathy” for the victims, or sympathy for the oppressors, such as Russia’s relationship with Syria. In order to truly protect human rights, unilateral humanitarian intervention should be permitted, regardless of it’s potential interference with state sovereignty, as interference is justified to prevent pain and save human lives.

In addition, an argument can be made that the creation of a right to humanitarian intervention does not interfere with the doctrine of sovereignty at all, as the sovereignty of a state that attacks its own people should be considered forfeit. According to popular sovereignty in the West “the people rule,” which is the very foundation of democracy. Without the support of the people, a state should not be considered sovereign, as the state is not “legitimate.” Furthermore, a state denying its citizens human rights is not just. Academic Rawls stated that the first principle of justice in society is that “each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties.” A society that denies a minority group, or any law-abiding citizen basic rights can never be considered to be fair. It also cannot be considered fair for a state that refuses to stop or prevent a genocide be protected by sovereignty. Sovereignty prevents outside intervention in situations, despite the fact that there is “no moral difference” between the state where the violations are occurring sending troops, and another state sending them across a border in order to save human lives. Sovereignty is therefore only protecting the oppressor, and any justice that comes after a massacre does not bring justice to those whose deaths could have been prevented had the U.N fulfilled its obligation to protect human rights because the Security Council cannot come to an agreement. There needs to be more focus on the prevention of mass deaths in order for the United Nations to become a body that can truly be considered to protect human rights. Therefore, there should be a right to humanitarian intervention, even when the state does not consent, as human rights should be prioritised over sovereignty.

The issue of abuse

Secondly, the right to humanitarian intervention should exist as the potential for abuse is believed to be overstated. Many who oppose humanitarian intervention do so based on the perception that “humanitarian intervention will inevitably be abused.” This fear was especially generated after the intervention in Libya, as to many it “demonstrated that the requirement that the resort to force be authorised… is not sufficient to ensure the right of intervention will not be abused by powerful states in pursuit of their own ideological and self-interested objectives.” States are concerned that other powerful states will use the right of humanitarian intervention for economic and political gain, exploiting the country that they have saved. The Russian ambassador in particular emphasised that NATO’s unauthorised intervention created a “dangerous precedent… that could cause acute destabilization…on the… global level.” However, ““it is widely perceived that Russia and China have overstated the danger of abuse and stood in the way of necessary international action” with the pair being “fiercely condemned” for their repeated refusals to allow further humanitarian intervention in Syria, decreasing the credibility of their complaints. The possibility of abuse certainly does exist, but it is believed to have been exaggerated by those who wish to prevent others interfering in their own affairs, such as China’s treatment of the Uighur population.

Furthermore, adopting a model similar to the right of self-defence, which has already been “repeatedly misappropriated” should also prevent and punish abuse. For a State to legally be able to use self-defence, an armed attack and a proportionate response are required. Or, if no attack has yet occurred, the application of the customary Caroline test; “it will be for the government to show a necessity of self-defence instant, overwhelming, leaving no choice of means and no moment for deliberation… nothing unreasonable or excessive.” The threshold for necessity for humanitarian intervention could be mass human rights violations that the state refuses, or is unable to stop. Utilising the jus ad bellum proportionality principle, “whether the force used is proportionate to the legitimate ends of using that force” ensures that any abuse would be punished, as any time a state has an ulterior motive, the force used is not proportionate. Although ulterior motive is not always obvious, a task force could be assembled each time the right is cited in order to observe the actions of the state as their conduct would display the truth. Abuse would then be punished by the International Court of Justice, just as the abuse of self-defence is, as “justice absolutely demands formal equality” which is provided by the equal application of the law to all states, such as in the case of Nicaragua v The United States. The court found that the U.S violated its customary law obligation not to use force against another state and was ordered to pay reparations. The U.S received no special treatment regardless of its superpower status. Therefore, the issue of abuse can be dealt with using strict procedural requirements, that when breached can be punished by the ICJ, and so abuse does not outright defeat the right of humanitarian intervention.

The fatal issue of the current lack of support

Although the issues of sovereignty and abuse can be countered, in the lex lata there is no current right to humanitarian intervention and considering the massive majority of states who oppose the right, the Group of 77 and China, it is highly unlikely that one would develop in the immediate future. If the right were to ever develop, it would most likely be through customary international law. There would need to be a “common, consistent and concordant” state practice according to the case of U.K v Iceland 1972, an absence of substantial assent following Nicaragua v. The United States. This practice could arise in future should the Security Council’s veto continue to remain an issue, as there has not been a show of support for the 5 permanent members of the council to not use their veto when faced with mass human rights violations, humanitarian intervention will continue to be de lege feranda as the result of the Security Council’s deadlock, and consequent inaction in the face of humanitarian crises. Furthermore, it is arguable that the required opinio juris outlined in North Sea Continental is already manifesting, as Belgium and the United Kingdom have both already spoken in support of the right. The establishment of jus cogens, making humanitarian intervention a “pre-emptory norm of international law…. Accepted and recognised by the international community of States as a whole” would ensure this right’s creation. For the right to become a recognised exception to Article 2(4), the Security Council would have to assent to it. This could come about as the result of a resolution passed by the General Assembly, which would provide the political pressure necessary for the Security Council to be forced to accept the right and make it law. Therefore, although humanitarian intervention does not currently stand as its own right, it may, and should do so in the future.

Conclusion

In conclusion, on the grounds that human rights should be prioritised over sovereignty to create fairness and justice and that the issue of abuse could be dealt by adopting strict criteria, such as those used by self-defence, the right to humanitarian intervention even without consent should exist. Furthermore, although the right does not currently exist in de lex lata, it is the de lege feranda, and there is the possibility of it coming into existence through customary international law, which would aid in the creation of a just and equal world.