humanitarian intervention: a constructivist approach

Humanitarian intervention and state sovereignty: Constructivist approach

Xhensila Gaba

Course: International Organizations/ international law Instructor: Ilir Kalemaj Time: Fridays 9.00-12.00 ~1~

Date: January 30, 2011

Introduction The ongoing debate whether the international community should intervene or not in the sovereign territory of another state when human rights are at stake, is still a controversial topic in the international arena and yet has not found a legal solution. The issue of intervention for human protection purposes has been seen as one of the most contentious and difficult of all international relations questions. With the end of the cold war, when many states collapsed in the horrors of internal wars escalating often in massacres with millions of dead within a short time, the intervention question became a critical and essential issue as never before. The doctrine and practice of humanitarian intervention reflects a dilemma within the realm of global governance: a tension derived by the failure in coordinating the primacy of state sovereignty and human rights protection. With the increasing internationalization of human rights and the emergence of many institutions dealing with protection of fundamental human rights, this have made human rights gain ground on the international system, and no one disputes over the importance and indispensability in protecting human being against any violations in their human rights, as a high moral value of international community. On the other hand, state sovereignty is considered as milestone principle in international law, as it helps in maintaining world order. State sovereignty cannot be violated without legal recourse to the UN charter and its mechanisms.

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External military intervention has been disputed both when it has happened -as in Somalia, Bosnia and Kosovo—and when it has failed to happen, as in Rwanda. At the United Nations General Assembly in 1999, and again in 2000, Secretary-General Kofi Annan made convincing appeal to the international community to try to find, once and foremost, a new consensus on how to approach these challenges, He posed the question firmly and directly: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that affect every precept of our common humanity” (International Commission on, 2001). It was in reaction to this challenge that the Government of Canada, together with a group of major foundations, declared at the General Assembly in September 2000 the establishment of the International Commission on Intervention and State Sovereignty (ICISS). The Commission’s duty was to “struggle” with the whole range of questions—legal, moral, operational and political —all encompassed in this debate; also to consult with the widest possible variety of opinions worldwide, and to write a report that would help the Secretary-General and everyone else part of the community to find some common answers and solutions to this dilemma. The commission’s report—“The responsibility to protect”— covered the idea that sovereign states have a responsibility to protect their own citizens from man-made catastrophes, such as mass murder and rape, starvation, genocide, ethnic cleansing, massacres. The report also emphasized that when sovereign states are unwilling or unable to guarantee protection to citizens, then that responsibility must be taken over by the broader community of states.

There are many questions regarding the debate and why of this legal stagnation in finding a solution. Questions cover a spectrum of “when, who, and how” dilemmas with regard to the humanitarian intervention. Is it legitimate for an international organization to use force without

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legal support, for example without a UN mandate, as it was the case of NATO intervention in Kosovo? On the other hand, is it morally fair to let gross and systematic violations of human rights continue without any interfering? The inability of the international community to find a middle ground where both of these principles can converge, has resulted in tragedies in many cases, such as Rwandan genocide, in which almost one million people died in a short period of time. This gap that exists between these two important principles of international law should be bridged as soon as possible, by either reconstructing the debate or making a more adequate approach to the concept of sovereignty or by finding some legal space in including humanitarian intervention as a legalized action under specific circumstances. The paper will focus in analyzing the debate through different schools of thought and by giving a detailed description of the intervention dilemma.

Literature review The debate on whether the international community should intervene when the human rights are violated by a sovereign state has split the international lawyers, political scientists and scholars into two parts: the first one is pro humanitarian intervention and attributes higher authority to the human rights rather than sovereignty. The other part is emphasizing more on the importance of sovereignty and therefore being against any kind of intervention, including the humanitarian intervention. International lawyers are mostly divided between interventionist and statists (Fleiner-Gerster & Meyer, 1985, p.277). Interventionists maintain that the concept of sovereignty is unrealistic and does not any longer fit the necessities of modern international law.

The Hobbes assumption that sovereignty can neither be limited nor divided is divergent to

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modern developments in international society. The justificatory argument resides in the theory that mankind faces a number of intractable issues, at least at domestic level. The issues of peace and war have been at the top of the agenda since the ‘60s. Moreover, states are engaging in economic and trade activities which makes them more interdependent, and as a result any local crisis in any part of the universe becomes soon global and spreads its consequences not only in the central zone of conflict, but worldwide. Another contemporary issue is about the engagement of the international community in protecting the environment. All these new trends have served as a “push factor” for the emergence of the “global governance” concept, meaning that the national interest is considered to be a common interest and therefore needs to be defended by international institutions. Therefore, according to these views, it is necessary to build up new approaches to define the State, and consequently even the sovereignty. Another justification for the legalization of the humanitarian intervention is rooted in and justified by the deficiency of the international system in letting an unacceptable gap between what international law allows and what morality calls for. According to Fernando R. Teson, “Non-interventionism is a doctrine of the past” (Nadezhda, 2008). Moreover, NATO perceived their military action in Kosovo as lawful—as having a legal base within the framework of international law, which includes basic human rights norms as well as resolutions adopted by the SC under Chapter VII of the Charter.

UN Secretary-General Kofi Annan also declined to denounce NATO’s military action, stating instead that “there are times when the use of force may be legitimate in the pursuit of peace”. So in the overall, the development of intervention conception is justified by contemporary challenges. The main argument is that a human life is the highest value and the main attribute of a state.

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On the other hand, the statists believe that the humanitarian law is contrary to sovereignty and therefore unrealistic. They see these new developments as inconsistent with the basic principles of international law, which are founded on the concept of sovereignty in the definition of Hobbes--a sovereignty which cannot be limited or divided. According to anti-intervention scholars, sovereignty is an important column, maintaining the current world order and therefore stability. Humanitarian intervention is interference in national affairs and it is not acceptable and against with international law. Scholars like Patrick Regan assert that humanitarian intervention can cause greater losses, more serious than they could be in the case of non-intervention (Nadezhda, 2008). Conflicts with interventions have a tendency to be bloodier than those without third-party interventions. Military intervention leaves the sovereign state worse, not better, or becomes a pull factor for the intervening powers to get lost in the void of long-term involvement in the conflict. Another researcher, Gidon Gottlieb argues that “the value of an organized state is not to be belittled: the absence of governmental authority makes apocalyptic anarchy possible, as events in Somalia, which can illustrate the darkest pages of Hobbe’s Leviathan, have demonstrated� (Nadezhda, 2008). Moreover, he claims that the principle of nonintervention serves to defend weaker states from the great powers. Patrick Regan notes that almost 40% of all interventions were continued by major powers (Nadezhda, 2008).

According to Realists, sovereignty is an empirical feature of the state, an assertion that states make with regard to their territorial authority which is supported and sustained by military power, economic resources and perhaps the approval of the people. Therefore they highlight the role of war-fighting and military competition in developing further the modern international system. Rationalists treat sovereignty as an institution of international society, an organizing principles that allows the organization of political authority be centralized and territorially

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differentiated political entities. They draw attention to the emergence of norms of mutual acceptance, non-intervention and self-determination. Constructivists argue that in order to understand the new trends in modern international society such as the institutionalization of human rights as a higher principle and in order to find a consensus within the debate whether humanitarian intervention purposes justify the breach of another international core principle such sovereignty, then it is necessary to treat sovereignty as a variable, practically constituted institution. Basically, constructivist theory emphasizes on the social construction of sovereignty.

Richard Ashley argues that, “sovereignty is a set of norms concerning the legitimate organization of political authority, the content and implications of which may evolve due to the historical and practical context to another�( Reus-Smit, 2001, p.526).

The last view important to mention in the sector of literature review with regard to humanitarian intervention dilemma is the normative hierarchy theory. Under this theory, a state’s jurisdictional immunity is obscured when the state violates human rights that are considered peremptory international law norms, known as jus cogens (Caplan, 2003). The theory claims that because state immunity is not jus cogens, it ranks lower in the pyramid of international law norms, and as a result can be overcome when a jus cogens is at stake.

Thesis statement In this paper, I argue that the human rights protection and the principle of sovereignty should not be analyzed as if there were two separate and contradictory norms of international law and society, because sovereignty is a socially constructed norm and subject to contextual changes with the scope of protecting the fundamental rights of the people. Therefore sovereignty

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is a principle that justifies its moral purpose with a higher moral value, such as respect and protection to human rights.

Methodology I approach the conception of sovereignty with the constructivist theory in analyzing its evolution through different historical periods, and try to find out what is the scope of the 21st century sovereignty. Moreover, I incorporate the normative hierarchy theory into my arguments to justify the intervention for the purpose of protecting human rights. In the end, I illustrate my model to a case study, Kosovo war.

The changing international environment Before starting to give an understanding of the principle of sovereignty and this controversial debate between this principle and the human rights protection, it is important to analyze the context in which the debate is taking place. Because norms are subjects of developmental changes, they cannot be analyzed outside of the international environmental framework. The issues that concern the 21st century present new and different types of challenges from those that UN faced in 1945, the time period when it was founded. The emergence of new challenges has resulted in the upcoming of new expectations for action and new standards of perform in national and international affairs. The issue of international intervention for human protection purposes is an obvious and compelling example of the need to bring international norms and institutions in line with international needs and expectations. The debate for humanitarian intervention is being conducted within the framework of new standards of conduct

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for both states and individuals, new expectations for actions, and within an institutional framework that since the end of the Cold War has held out the vision of effective joint international action to concentrate on issues of peace, security, human rights and sustainable development on a global level. Below I mention four main dimensions of this changing international environment which are: (1) new actors, (2) new security challenges, (3) new demands and expectations for action, (4) new opportunities for common action.

First, new actors include both the birth of new states and the emergence of important institutional actors especially in the field of human rights and human security, and also non-state actors which can be viewed as a variety of voices comprised in one spectrum. In its positive extreme stands a large number of NGOs, then going on with a growing number of media and academic institutions, ending up in the negative extreme where we find armed non-state actors including terrorists, traditional rebel movements and organized criminal groupings (International Commission on, 2001). All of these voices have contributed to the humanitarian intervention debate in more voices, perspectives, interests, experiences and future ambition. The second dimension are new security challenges, from which the most frequent and marked security phenomenon since the end of the Cold War has been the rise of armed control within states. In many states, the end of the Cold War was accompanied by greater demands on democratization, human rights and good governance, but in too many others, the result has been internal war or civil conflict, which often has escalated into genocide and ethnic cleansing. In these places, the state monopoly of using violence is missing and violence becomes a way of life with disastrous consequences for civilians trapped in the crossfire. In an independent world, in which security depends on a skeleton of stable sovereign units, the existence of weak states, failing states, states who harbor dangerous actors for the community, or states that see violence and also human

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rights violations as the only way of preserving internal order, can constitute a major threat for people everywhere.

The third dimension is about new demands and expectations. With new demands it is meant new standards of conduct from the international community, as well as the development of new and stronger norms for the protection of human rights, which are seen at the core of the international responsibility. Some crucial milestones in this progression have been the Universal Declaration of Human Rights; the four Geneva Conventions and the two Additional Protocols on International Humanitarian Law in armed conflict (International Commission on, 2001). There is a growing recognition worldwide that the protection of human security, including human rights and human dignity, must be one of the fundamental goals of modern international bodies, and this increase in awareness is due to globalization and technology, through which killing and conflict occurring in distant places around the world, had been broadcasted and brought right in the living rooms of people everywhere. The impact of this has been that popular anxiety over what has been transmitted has put political pressure on governments to respond. For many of these governments, the nonintervention has led to a domestic political cost. The last dimension is new opportunities for common action. Since the end of the Cold War, now there is an actual prospect of the Security Council fulfilling the role pictured for it in the UN Charter. Despite some notable delays, the capacity for common action by the SC was demonstrated during the 1990s with the approval of nearly 40 peacekeeping or peace enforcement operations over the last decade (International Commission on, 2001). Moreover, in the context of the debate about the issue of humanitarian intervention, it is clear that the realities of the globalization and growing interdependency have often been important factors in promoting rapid and positive engagement

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of neighboring states and others both in promoting prevention, and also in calling for intervention in situations that seem to be out of control.

A new approach to sovereignty The concept of sovereignty constitutes a building block when it comes to international relations and especially international law. Sovereignty is an organizing principle that permits the arrangement of power and authority into territoriality-demarcated, centralized and autonomous political units. As John Ruggie observes, it is a principle that specifies “the basis on which the constituent units are separated from one another� (Jackson, 2002). Sovereignty has also been analyzed as a social construct, in which several practices contribute in the social construction of a territorial state as sovereign, including the stabilization of state boundaries, the recognition of territorial states as sovereign, and the given rights onto sovereign states. This approach emphasizes that no intrinsic characteristics reside in the concept of sovereignty, but that its nature depends on the norms and practices of nation-states and international system, which practices could change over time (Jackson, 2002). Like all the social norms, the principle of sovereignty has a history that has involved the same sort of communicative processes that compose the production and reproduction of similar social norms.

In different period of times, the concept of sovereignty has been shaped after different context on behind, such as sovereign states emerging in ancient Greece, or leading during Italian Renaissance, or when the absolutist states flourished out of the declining order of medieval Europe, or in the age of revolution with the birth of nation-states, but what was the same for all these historical critical moments, was that sovereignty did not come out in a moral vacuum: it had to be justified and that justification has always been in the form of a demand to higher

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values, which definitely mark the identity or raison d’etre of the state (Reus-Smit, 2003).

Sovereignty has to be viewed as a secondary principle, a “receipt” about the distribution of power and authority that needs to be grounded in more fundamental existing values. It is not appropriate to name sovereignty as the basic international institution, the normative basis of the society of states, but it should be analyzed in reference with other social values. Referring to Aristotle, “every state is an association, and that every association is formed with a view to some good purpose” (Aristotle, cited in Reus-Smit, 2003). Therefore the principle of sovereignty is best understood if incorporated in the whole normative system of values in the international context, rather than isolating it as an imposed unchangeable principle. At the heart of this contextual system of value, where the sovereignty principle is part of it, is the moral purpose of the state, which specifies the terms of legitimate statehood and rightful state action. Their content varies however from one historical context to the other. Ancient Greeks linked the moral purpose of the state to the development of bios politicos, a branch of communal life; Renaissance Italians defined it in terms of the seeking of civic glory; Europeans during absolutism linked it to the sustainability of a divinely, rigidly hierarchical social order; and in the modern era, the rationale for the state has been increasing efforts for the protection of individuals’ rights (Reus-Smit, 2003).

The old Westphalian concept of sovereignty in the context of a nation-state’s right to monopolize certain exercises of power with regard to its territory and citizens has been doubted in many ways but still supported by those who maintain certain Realist views or who wish to prevent foreign or international powers and authorities from intervening in a national’s government decisions. When “dissolving” the concept of sovereignty, we find out that it includes many dimensions, the most important of which is the monopoly of power. Westphalian

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sovereignty is a traditional way of referring to sovereignty conception with the following characteristics: (1) supreme political authority and monopoly over the legitimate use of force within its territory, (2) able of regulating movements within its borders, (3) free foreign policy choices, (4) known by other governments as an independent unit entitled to freedom from any external intervention (Pease &Forsythe, 1993). At that time this principle offered world order, although they were never established in absolute terms. Nowadays, due to the changing international domain, many of the components of the sovereignty principle, such as internal authority, border control, policy autonomy, and non-intervention, are being challenged in an unmatched way. Henry Schermers, an eminent senior international law scholar and professor, states, “Sovereignty has many different aspects and none of these aspects is stable. The content of the notion of “sovereignty” is continuously changing, especially in recent years” (Pease &Forsythe, 1993). From the above statement we can conclude that sovereignty is mostly influenced by the changes of international system and international law, and therefore international co-operation bound states by requiring some minimum standards of international law without being having to claim that their sovereignty gives them the right them to reject basic international rules.

Moreover the international community has the right to take over sovereignty of territories where the national government fails to meet these minimum requirements. In 1992, the then UN secretary-general Boutros-Ghali said in his report to the SC, “Respect for the state’s fundamental sovereignty and integrity is crucial to any common international progress. The time of absolute and exclusive sovereignty, however, has passed; its theory was never matched by reality” (Jackson, 2002). A decade later, when the UN failed to intervene effectively in Bosnia, Somalia, Rwanda and Kosovo, the new secretary-general Kofi Annan presented his 1999 annual report to

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the General Assembly by asserting that “Our post-war institutions were built for an inter-national world, but we now live in a global world” (Jackson, 2002). Furthermore to support the idea that sovereignty is a continuing changing principle parallel with international changes, I want to mention what the Permanent Court of International Justice said in a dictum in 1923, “The question of whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends on the development of international relations” (Pease & Forsythe, 1993). New threats such as mass destruction, genocide, failed states, and rogue states all create extreme theoretical problems for doctrines of sovereignty ( Jackson, 2002). Moreover Kofi Annan introduced two concepts of sovereignty: sovereignty of states and sovereignty of individuals, the latter meaning the fundamental freedom of each individual, preserved in the Charter of UN and subsequent international treaties, which has been enhanced by a spreading awareness of individual rights (Annan, 1999).

Human rights, humanitarian law and humanitarian intervention Rule of law, state sovereignty and international obligations are three of the most important elements that compose the world politics. The previous sector was focuses on one of them, state sovereignty respectively, which was analyzed in its traditional and modern approach through constructivist theory. This sector will focus on the other two dimensions which are the rule of law and international obligations, and as we know human rights and their protection are parts of the international community responsibility. Legal framework has emerged to codify and regulate specific issues and clashes between certain actors at a certain time. This means that changes in the international arena should be reflected, mirrored in law, as well. The increased importance of individuals in the international scenery, disputes between states concerning their sovereignty and rising concerns with human rights all these issues provide the necessity to

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improve and adapt international law with the international needs and challenges. The respect of human rights reflects a gap between states’ responsibility to provide their population basic survival needs and the international responsibility of keeping those standards, even when dealing with internal matters (Giannini, 2010).

In terms of human rights and humanitarian law, the “preeminent ethical principle is the unity of all human beings as equally dignified members of one human family, who in turn can, within a framework of unity, develop and take pride in individual, national, ethnic, or religious identities,�, writes Prof. Brian Lepard (2002) in his book Rethinking humanitarian intervention.

Traditionally, international law considered the relation between a state and its citizens to be a domestic issue, falling under the principle of state sovereignty. Individuals were object of state action, but they were not international subjects with codified rights in international law.

After 1945, began the internationalization of human rights, with international law confirming that individuals and peoples are at least partial subjects of international law, with widespread substantive rights and some procedural capability to act. They reached their peak of internationalization with the creation of the United Nations (Pease & Forsythe, 1993, p.294). UN supplemented the 1948 Universal Declaration of Human Rights; two 1966 UN Covenants spelled out complete rules for civil, political, economic, social and cultural rights. Other treaties supported by the UN system also specified detailed rights encompassing to matters such as genocide, racial discrimination, political rights of women, marriage, refugees, torture, children, freedom of union and collective bargaining power. Moreover, three regions developed separate human rights treaties: Western Europe, the Western Hemisphere, and Africa. Also in Western Europe and Western Hemisphere were created monitoring agencies for both the implementation and the enforcement of those principles. Human rights courts were created with their respective

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jurisdictions (Pease & Forsythe, 1993, p.294). This makes obvious that the human rights stand in a higher position in the international hierarchy of principles. They have earned the peremptory nature, which can overthrow the principle of state immunity any time there is a clash between two of them. In general this is what the normative hierarchy theory postulates. In a certain way, although does not exist any legal base for humanitarian intervention, human rights are protected by a higher status, which provides a path to justify the intervention (Caplan, 2001). In the overall, treaty law, diplomatic practice and some of customary international law all make obvious that the broad subject of human rights is fully part of international law and relations, thus no longer pertaining exclusively to the domestic jurisdiction of states. What is the international community entitled to do to protect human rights when a state does not give its consent to international action?

Evolving human rights norms are seen as an unavoidable international regime, the purpose of which is to limit the cruel consequences of the sovereign authority. Human rights norms limit the way states can treat their peoples, compromising sovereignty in the name of universal standards of legitimate state conduct. For long period of time, sovereignty and human rights are considered two split regimes that rest in a zero-sum game—the stronger the principle of sovereignty, the weaker the norms of human rights, and vice-versa (Jackson, 2002). However, if we consider sovereignty a social norm constructed by respecting the moral purpose of the state for guaranteeing human rights, then we don’t have to see these two principles in contradiction; probably we will find a way to legalize humanitarian intervention as a need of the time we live.

Kosovo and NATO campaign in 1999 is the most striking example with regard to the gap that exists in international law between legitimacy and legality, or justice and law. The paradoxical situation in Kosovo was because morally speaking, the intervention was necessary,

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but legally it was impossible. The UN Charter lists two legal conditions in which force may be authorized under international law: (1) if it is sanctioned by the SC (Article 42), and (2) in cases of self-defense. It is obvious the absence of a provision for humanitarian interventions.

Yugoslavia and Milosevic had caused an ethnic cleansing among Kosovars, and the war seemed to escalate. China and Russia vetoed against any intervention in the SC, so NATO intervened without the legal consent. It was a war fought in the interests of high moral values, and not in the interests of any state. However, the war in Kosovo, served as an example to emphasize and make more obvious the need to incorporate a resolution to the humanitarian intervention issue (Volsky, 2007, p.41).

The case of Kosovo shows that human rights are already a priority and their peremptory nature cannot be disputed or impeded by any inconsistent legal framework. Despite the fact that the concept of sovereignty is being reshaped and approached to an updated concept in order to narrow the gap between state immunity and human rights, and although the international community has an increased awareness of the undisputed importance of human rights protections, still legally speaking there are many ambiguities with regard to questions when to intervene, how to intervene, and whose authority should be to intervene. Below is a part of the annual report of UN Secretary-General Javier Perez de Cuellar in 1991, which illustrates better the ambiguities spoken, It is now increasingly felt that the principle of non-interference within the essential domestic jurisdiction of states cannot be regarded as a protective barrier behind which human rights could be massively or systematic violated with impunity (Pease& Forsythe, 1993)

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Words like massively and systematic violations of rights do not specify what makes a war a massive violation of human rights. What types of human rights, the basic one, the right of life, and the economic or political ones? When a war is called genocide or an ethnic cleansing, if there are not clear numbers of victims? How many people should die before the international community intervenes? What sort of intervention should the international community undertake?

All these questions show how ambiguous the international law is, and how the challenges of the 20th and 21st century are pressuring more in reforming the legal framework and finding a consensus.

Conclusion The paper focuses on one of the most controversial debates that the international community is facing: the contradictory nature of the principle of the state sovereignty with the human rights protection. The existing gap within the legal framework between two apparently inconsistent international norms, has contributed in the escalation of very violent internal wars while the international community concerns with legal matters more than moral ones, failed to intervene and stop many massacres. The purpose of this paper was to direct the debate on a different level, trying to approach sovereignty conception within a constructivist theory.

According to constructivist scholars, sovereignty and human rights are not two separate and contradictory principles in the international law, but it is the debate surrounding them that has distorted the proper way in interlinking these notions with each other. Sovereignty is not born in vacuum; it is a socially constructed notion heavily dependent on the contextual circumstances it operates. Sovereignty has to justify its moral purpose by making reference to higher values, such as human rights. With a changing and dynamic international environment, sovereignty should be enough of a flexible variable to adapt to the new challenges and issues, otherwise it would be

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like governing the new world with outdated methods, and the result obviously would be failure.

On the other hand, the paper focuses on the human rights, their evolution from merely domestic affairs of the states to their rapid internationalization, and even having the higher status in normative hierarchy, peremptory norms, or jus cogens. Human rights are becoming the core element driving and structuring most of the international bodies. Humanitarian intervention is very ambiguous in the international law framework, because morally it is perfectly justified as a just war for protection of human rights, but on the other hand they are not legal. This mismatch needs further debate between international actors in order to bridge this gap as soon as possible in benefit of all the community. Last, sovereignty should be viewed as a responsibility rather than a supreme right of states. It is the responsibility for protecting the rights of the citizens, and if for any reason the state fails to achieve this integral and vital goal, the states sovereignty is no longer undisputed.

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