Sovereignty and the International Legal Order
Although the United Nations Charter is the primary document concerning sovereignty and
intervention in international law, it has a duality that is untenable in today’s international society. It is widely acknowledged that parts of the Charter are more binding than other sections. The nonintervention articles - 2 (4) and 2 (7) - have been cited by many regimes that have concerns about establishing a doctrine of humanitarian intervention or a proto democratic world order. However, Article 1 (4) and (3) of the Charter mentions human rights as a purpose of the UN, ‘…promoting and encouraging respect for human rights and for fundamental freedoms for all’. So it is conceivable that the use of military force outside the UN process in defence of the purposes of the UN may not be in contravention of Article 2 (4).
Furthermore, Article 2 paragraph 7’s non-intervention principle is based on ‘matters essentially
within the domestic jurisdiction of any state’. In the twenty-first century the protection of
fundamental rights and freedoms of all peoples are now a matter of concern for every member state and no longer that of mere solitary domestic state jurisdiction. It is unfortunate that the purposes and principles of the UN Charter are still interpreted by international jurists as an aspiration rather than a binding rule. The lawful authority for a universal standard of civilisation based on human rights protection lies somewhat within the purposes and principles of the United Nations which affirms human rights protection, but more obviously in international human rights conventions and interpretations of customary international law.
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Policymakers in democratic or cosmopolitan societies often refer to the Universal Declaration of
Human Rights as the basis for this universal standard of civilisation. Yet, this document as a
‘declaration’ is not binding upon member states of the UN. However, through the progressive and enlightened interpretation of international law, and the multilayered evolution in post-modern legal processes that aspire to a universal ethic, it is possible to interpret what was previously a nonbinding document in international law as currently a binding standard of civilisation upon nations, as the majority of its articles have arguably become principles known to international lawyers as jus cogens,4 thus superseding the right to sovereign non-intervention.
This evolution has occurred principally as a result of the binding status of the body of complementary treaties that strengthen the fundamental rights and freedoms articulated in the
UDHR such as: The Genocide Conventions, The Convention against Apartheid and The International Covenant on Civil and Political Rights. These treaties, among others, enshrine the
fundamental human rights that are also articulated by the UDHR.5 As a result of this evolution
certain fundamental first generation human rights have become legal norms and principles of jus
This development in customary international law could have formed the basis for a doctrine of
lawful humanitarian intervention by cosmopolitan society even without the consent of the UN
Security Council. Such an incident of Democratic Interventionism occurred in 1999 over Kosovo as a result of Yugoslavia’s atrocities against its Islamic Kosovar citizens where cosmopolitan
democratic society, united through NATO sought to enforce this new standard of civilisation by
alleviating the suffering of the Kosovars through the military mechanism of weakening the
Milosevic socialist regime. Similarly, the 1988 massacre at Halabje committed by the autocratic power that ruled the state of Iraq, against Iraq’s Kurdish citizens was such an atrocity that could have formed the basis of a 4 Jus cogens: a preemptory norm of general international law from which no derogation is permitted. Article 53 of the 1969 Vienna Convention on the Law of Treaties.
5 The philosophical basis for these rights were laid down by the likes of Thomas Paine, John Locke, Immanuel Kant, Marcus Tullis Cicero and others, and enshrined in documents like the American Declaration of Independence and Bill of Rights. The Henry Jackson Society 6 powerful (although belated) argument in favour of military intervention independent of the Security Council’s consent, particularly as the Halabje massacre was induced by chemical weapons of massdestruction. From Halabje onward the Hussein regime of Iraq, like that of Milosevic’s Yugoslavia, delegitimised itself as a result of its systematic abuse of citizens within its territory. Hussein transgressed the universal standard of civilisation, a grave fall from grace from which there could be no redemption or credible assertion of the right to non-intervention. Democratic society should have intervened to protect the Kurds from the genocide of Hussein at the time; the fact that it did not is regrettable. However, it is all too easy to forget the stark realities of the Cold War that limited what was possible by way of human rights protection through military interventions. In the post Cold War twenty-first century, there is now a new opportunity in the new era of sovereignty. Democratic society should never again shy from protecting the fundamental human rights of peoples when their states or regions fail them. Genocide and systematic oppression of peoples should never be overlooked or not called by name again in the twenty-first century.
Democracies should lead the way in articulating that sovereignty and non-intervention have
questionable status when faced with the choice of protecting or not protecting the fundamental
human rights of citizens from gross state sanctioned systematic abuse. There is a moral and legal argument for forcible military intervention based on human rights grounds, and there is a so far unchristened international ethic transpiring. There is a presentable case for a new international ethic, based on sovereign responsibility and democracy. Powers that govern democratic states understand this, yet the illegitimate powers of the pre-modern and some of the modern world flout this. It follows then, that a power governing a state that breaks this bond of sovereign responsibility toward its own citizens, either through wilful intent or non-compliance with respect to human rights abuses, forgoes the right of non-intervention under a temporary suspension of the sovereignty principle, which may even lead to that power’s ejection from the
governance of the state. Since large scale human rights abuses have been defined as threats to peace and security, in Security Council resolution 1199 and 1203 it is the moral duty of states that are able to alleviate The Henry Jackson Society 7 suffering by undertaking such interventions against the apparatus of the offending host governments. Interventions such as Kosovo have not yet had the chance to be proved legal; but, they can be shown to be morally acceptable and conducive to a new evolving norm in customary international law.
6 Military interventions can be lawful even without Security Council authorisation when taking
into account the notion that there is already an emerging doctrine that justifies this right of
intervention in customary international law. This right is based on accepted state practice and
displays of psychological intent through the Opinio Juris mechanism of policymakers in articulating that their decision to intervene is legal. Complimentary to this is Security Council precedent, the evolution of human rights norms and the changing nature of sovereignty, which is now increasingly qualified by the two pillars of legitimacy in the international system: democratic state governance and the protection of fundamental human rights.
Interventions complementary to this doctrine are: India in East Pakistan (1971), Vietnam in
Cambodia (1978) and Tanzania in Uganda (1979), these interventions have ended large-scale
human rights abuses and are indicative of the state practice element supportive of the customary international law argument. At the time references were made to humanitarian motives in the opinio juris7 of the intervening states, but to remain within the strict letter of the outdated law, arguments of self-defence were articulated as the primary justifications. There have been other interventions that could be said to be have a stronger basis in humanitarian aims, these are the interventions of ECOWAS in Liberia (1990) and the intervention of the United States, France and the United Kingdom in northern Iraq (1991), and of course NATO in Kosovo (1999). Were the international community to intervene in Sudan or Iran and other genocidal / nondemocratic states in spite of the Security Council this could be justified.
6 Minutes of evidence taken before the British House of Commons, Foreign Affairs Committee, 16th March 2000.
7 The traditional interpretation of opinio juris is that it is a state of mind accompanying a specific state act which gives that act its legal significance. However Michael Byers has reinterpreted this definition and agues that opinio juris is a ‘diffuse consensus, a set of shared understandings among States as to the legal relevance of different kinds of behaviour ...’. Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law,
(Cambridge: Cambridge University Press, 1999), p. 19.
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In addition to this emerging doctrine, it is possible to create a predictive typology of intervention.
States that may be susceptible to future interventions are those states ruled by powers that are
undemocratic, that transgress the fundamental human rights of their own citizens to the point of
precipitating a complex humanitarian emergency that shocks the conscience of mankind, and have a penchant for developing or acquiring weapons of mass destruction. States fitting this typology may become subject to military intervention by the democratic states of international society in the event of Security Council paralysis, and even more so if strategic interest is added to the equation. This predictive typology could be as much a guide to the democratic world in formulating the doctrine of intervention, as it is an incentive for the undemocratic states of the world to reform.
Toward the Doctrine of Humanitarian Intervention
When a state fails its citizens either through intentional persecution or collapse than the
responsibility for restoring peace falls to those democracies with the ability and credentials to
protect. We are now at a stage where a part of the world is ready to enshrine certain fundamental rights as principals of jus cogens. In articulating this new doctrine of sovereignty, it is imperative to distinguish between the general human rights or ‘values’ debate and the fundamental first generation basic rights that this doctrine is based on. These basic rights are; the right to life, the right to human dignity, and the right to be free from torture. Basic rights are universal, trans-cultural and non-derrogable, and as such could be termed ‘a universal law’. They have been accepted by most states in domestic law; they form the basis of a plethora of human rights conventions, and are distinct from second and third generation human rights, those being rights that are within the realm of economic, social, and cultural rights. Secondary rights are the preserve of respective communities and are not within the realm of any universal law.
The foundation of the doctrine of humanitarian intervention and the new sovereignty lies within a number of sources. These include: fundamental principles of natural law, the human rights
provisions of the UN Charter combined with growing state practice, the emergent binding aspects of the UDHR together with a large body of international covenants.
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Interestingly in the 1980 Filitartiga verses Pena-Irala case, it was asserted by two Paraguayan
nationals that Pena-Irala had tortured to death a member of their family. The court addressed the question whether the torture had violated customary international law, and found that the UDHR had become in toto a part of binding international law.8