Dilemmas of Sovereignty and Intervention

16 Jul


 

         

            The Arab Spring (and its troublesome, yet still hopeful, aftermath in Egypt), intervention in Libya, nonintervention in Syria and Bahrain, drone military operations in Pakistan, Yemen, Somalia, the influx of unwanted immigrants and walls of exclusion, and selective applications of international criminal law draw into question the most basic of all ideas of world order: the sovereignty of territorial states, and its limits. Also, at issue, are the closely related norms of international law prohibiting intervention in the internal affairs of states and affirming the fundamental right of self-determination as an inherent right of all peoples. These are basic rules of international order acknowledged in the United Nations Charter, taking the form of prohibiting the Organization from intervening in matters ‘essentially within domestic jurisdiction’ and through affirmations of the right of self-determination.

The latter is only aspirational in the Charter, but becomes obligatory as a result being posited as common Article 1 of the two human rights Covenants and being listed as one of seven principles enumerated in the authoritative Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN General Assembly Resolution 2625, 1970).

 

            At the same time, as Ken Booth provocatively pointed out almost 20 years ago one of the great failings over the centuries of the Westphalian framework of world order (based on treaties of peace in 1648 concluded at the end of the Thirty Years War that are treated as establishing the modern European system of territorial states premised on the juridical ideal of sovereign equality) was associated with sovereign prerogatives to possess unconditional authority in state/society relations. Booth showed that respect for sovereignty had legitimated the inner space of states as a sanctuary for the commission of what he called ‘human wrongs,’ that is, non-accountable and cruel abuses of persons subject to territorial authority. Historically, the West claimed rights of intervention, often in the name of ‘civilization,’ in the non-West, particularly in the decaying Ottoman Empire of the 19th and early 20th centuries. The great wakeup experience, at least rhetorically for the liberal West, was the non-response at the international level to the lethal internal persecutions in Nazi Germany during the 1930s, which were not only within a sovereign state, but within a country with a high claim to be a major embodiment of Western civilization.

 

The responses after World War II, mainly expressed via international law, consisted of the Nuremberg and Tokyo trials of surviving German and Japanese leaders, the adoption of the Genocide Convention, and the negotiation and approval of the Universal Declaration of Human Rights (UDHR), as well as the establishment of the United Nations itself. These were well-intentioned, although somewhat ambivalent, gestures of global responsibility that generated criticisms and even suspicions at the time: the Nuremberg and Tokyo standards of individual accountability for crimes were only imposed by the coalition of victors in World War II upon the losers, exempting the Allied Powers from any legal responsibility for the terror bombings of German and Japanese cities and the atomic bombing of Hiroshima and Nagasaki; the Genocide Convention seemed deficient due to its failure to  provide mechanisms for enforcement; the UDHR was drafted under the sway of Western liberal individualism as a hegemonic orientation, and was only endorsed in the form of a non-binding ‘declaration,’ a clear signal that no expectation of enforcement existed; as well, the legitimacy of the colonial structures of foreign ruler were not questioned until challenged by a series of populist uprisings throughout the non-West that produced some bloody wars as in Indochina and Algeria..

 

            In passing, it should be observed that the West never respected the sovereign rights of the peoples of the non-West until it was forced to do so. Whether it was European colonialism that extended its reach throughout Africa and Asia or the assertions of American hegemony over Latin America beneath the banner of the Monroe Doctrine the pattern was one based on relations of hierarchy, not equality. This was accompanied by a refusal to extend the Westphalian writ of mutual respect for sovereign rights beyond the Euro-American regional domain until the imperial order began to crumble after World War I. First, the Good Neighbor policy seemed to reaffirm sovereignty for Latin America, but only within limits set by Washington, as the Cold War era of covert and overt interventions confirm. In the Middle East and Africa various experiments with colonial halfway houses were undertaken within the framework of the League of Nations, and formalized as the Mandates System. Secondly, after World War II a variety of nationalist movements and wars of national liberation broke the back of European colonialism as an acceptable political arrangement, and the idea of the equality of sovereign states was globalized as a matter of juridical doctrine, although not geopolitically.

 

            During the last six decades the world has moved forward in pursuit of global justice, or has it? On the one side, human rights has matured beyond all expectations, and to some degree exerts a generalized moral and political force subversive of national sovereignty by validating a higher law that exists above and beyond the legal order of the state. This subversive thrust is reinforced by the development and institutionalization of international criminal law, enforcement of accountability claims against such pariah leaders as Milosevic and Saddam Hussein, as well as lesser figures in the entourage of tyrants, the establishment of the International Criminal Court, arrest warrants for the likes of el-Bashir of Sudan and Qaddafi. And, perhaps, most significantly in relation to global justice, the rise of respected transnational NGOs that have created a somewhat less selective pressure for implementation of human rights norms, but one that remains weighted toward political and civil rights that are given priority in the liberal democracies of the North, and one that gives little attention to the economic, social, cultural, and collective rights that possess primary importance to developing societies in the South. In actuality, the UDHR was correct in its integration of all forms of human rights in a single coherent legal instrument, but it became a casualty of the Cold War ideological tensions between capitalism and socialism, with one side championing a liberal individualist understanding of human rights and the other side a collective conception.

 

            And yet, these various moves toward what might be called ‘humanitarian globalization’ achieved at the expense of older conceptions sovereignty are too often subordinated to the realities of geopolitics. That is, the application of legal standards and the assertion of interventionary claims remain imbalanced: the West against the rest, the North against the South, the strong against the weak. Even the supposedly globally oriented human rights NGOs devote most of their attention to non-West violations when it comes to alleged infractions of international criminal law.  Selective applications of law and morality tarnish the integrity of law and morality that is premised upon fidelity to principles of equality and reciprocity. This makes supposedly challenges to sovereignty suspect, but are they also worthless, or as some argue, worse than worthless?

 

            There are two contradictory modes of response. The liberal answer is to insist that progress in society almost always occurs incrementally, and doing what is possible politically is better than throwing up one’s hands in frsutration, and doing nothing. So long as targets of intervention and indicted leaders are given fair trials, and are convicted on the basis of the weight of the evidence, such results should be affirmed as demonstrating an expanding global rule of law, and serving the interests of global justice. The fact that the principal states intervene at will and enjoy impunity in relation to international criminal law, remains a feature of world politics, and is even given a prominent constitutional status at the UN by granting a veto power to the five permanent members of the Security Council.

 

            The critical response argues that the prevalence of double standards contaminates law, and makes it just one more instrument of power. The authority and legitimacy of law depends on its linkage to justice, not power. To enforce prohibitions on the use of aggressive force or the commission of crimes of state only on losers and the weak is implicitly to cede the high moral and legal ground to the richest and most dangerous political actors. It makes available a humanitarian disguise for abusive behavior in a post-colonial global setting, providing pretexts for disregarding the dynamics of self-determination, which is the legal, political, and moral lynchpin of a system of sovereign states detached from the hierarchies of geopolitics.

 

            In a world beset by contradictions, there are only hard choices. There seem to be three kinds of situation that somewhat transcend this tension between liberal and critical perspectives: a severe natural disaster that cannot be addressed by national capabilities ( Asian tsunami of 2004; Haiti earthquake of 2010) acute or imminent genocide as in Rwanda (1994) where a small international effort would have seemed likely to avert the deaths of hundreds of thousands; a mandate to act issued by the UN Security Council as in Libya. In each instance, there are risks, uncertainties, and unanticipated effects; especially worrisome is the recent pattern of authorizations of force by the Security Council. Both in the Gulf War (1991), to some extent the sanctions currently imposed on Iran, and now with the Libyan intervention, the mandate to use force is stretched beyond the limits specified in the language of authorization. In the Libyan case, Security Council Resolution 1973 the initial justification for intervention was justified by reference to an emergency situation endangering the lives of many Libyan civilians, but converted operationally and massively by NATO into a mandate to achieve regime change in Tripoli by dislodging the Qaddafi leadership. No effort was made to secure a broader mandate from the Security Council and nothing was done to insist that NATO operations be limited by the terms of the original UN authorization.

 

            What can be done? We have little choice but to cope as best we can with these contradictions, especially when it comes to uses of force in the course of what is labeled as a ‘humanitarian intervention’ or an application of the ‘right to protect’ norm. I would propose two ways to turn the abundance of information on these issues into reliable knowledge, and hopefully thereby, to engender greater wisdom with respect to the specifics of global policy and decision-making. First, acknowledge the full range of realities in international life, including the absence of equal protection of the law, that is, judging claims and deciding on responses with eyes wide open by being sensitive to the context, including its many uncertainties. With these considerations in mind adopt a posture of reluctance to use force except in extreme cases. Secondly, presume strongly against reliance on hard power resolutions of conflict situations both because the costs almost always exceed the estimates of those advocating intervention and because military power during the period of the last sixty years is rarely able to shape political outcomes in ways that are on balance beneficial for the society on whose behalf the intervention is supposedly taking place.

 

            When it comes to severe human rights abuses somewhat analogous considerations apply. In almost every instance, deference to internal dynamics seems preferable to intervention-from-without, while soft power interventions-from-below-and-without are to be encouraged as expressions of emergent global democracy. Victimization and collective acute vulnerability should not be insulated from assistance by rigid notions of sovereignty, but nor should self-determination be jeopardized by the hypocritical moral pretensions of hegemonic states.  This is inevitably a delicate balance, but the alternative is to opt for extremes of passivity or activism.

 

            In effect, to the extent possible, global challenges to sovereignty should take the form of transnational soft power tactics of empathy as identities of persons around the globe become as globalized (and localized) as markets. The recent furor aroused by Freedom Flotilla II is illustrative of an emerging tension between the role of sovereign states in defining the contours of law and morality and that of popular forces mobilized on behalf of those unjustly suffering and neglected by the world of states. Ideally, the UN should act as a mediating arbiter, but the UN remains a membership organization designed to serve the diplomacy of sovereign states and the states system, and is generally hostile to the claims of global civil society however well founded. One attractive proposal to endow the UN with a more robust mediating role is to establish some form of Global Parliament, perhaps building on the experience of the European Parliament that has evolved in authority and political weight over the decades.  A more relevant innovation consistent with the above analysis would be the establishment of a UN Humanitarian Emergency Peace Fund with independent funding, an authorizing procedure that was not subject to a veto, and an operational discipline that ensured that the implementation of a mandate to act forcibly did not exceed its boundaries.  

 

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17 Responses to “Dilemmas of Sovereignty and Intervention”

  1. Julie Webb-Pullman July 16, 2011 at 9:44 pm #

    This is an extremely interesting and cogent piece making several excellent points. I hope there will be a sequel outlining in more detail the objectives and functions of the proposed UN Humanitarian Emergency Peace Fund, in particular the identification of an operational discipline that can/will ensure that implementation of mandates to act forcibly does not exceed their boundaries.

  2. Julie Webb-Pullman July 16, 2011 at 9:52 pm #

    further thoughts – why would it be a UN fund, and not one related to the new body? Surely that would be more appropriate, and capable of avoiding the pitfalls of being part of the UN system, largely negating the last threee points?

  3. Julie Webb-Pullman July 16, 2011 at 10:06 pm #

    Ignore previous two posts (lesson one – don’t write hasty replies!!! Fully digest the information first!! But I’m in a hurry.) However, I don’t see why a Global Parliament needs to be set up under the auspices of the UN, which is the implication in your article. The idea of a GP is good, but it would never happen under the UN system precisely because of the points made in the article – power, veto, and funding, plus the determination to perpetuate impunity for certain states. And it is unclear to me how a GP would answer the problem of states taking action (or failing to) against the moral or political will of their citizens – how will the GP be constituted? Won’t it be yet just another ‘representative democracy’ with all its failings, most serious of which is its abject failure to actually represent the will of the people? And the operational discipline question remains – exactly what form of operational discipline is capable of addressing the failings outlined in your piece? We threw out the League of Nations because it didn’t work – isn’t it time to throw out the UN because it doesn’t work either, and come up with something better?

    • Richard Falk July 17, 2011 at 10:40 am #

      Thanks, Julie, for these comments. I agree that UN auspices are not necessarily the best to proceed with such initiatives, and further that more detail is required to make such proposals credible. I have written several articles, in collaboration with Andrew Strauss, on the global parliament idea, and there are various proposals that have been developed on the idea of a permanent or standing peace force available to address humanitarian or natural catastrophes. I think the time has come to push such global reform initiatives although for reasons you suggest the political obstacles will be quite formidable.

  4. deepaktripathi July 17, 2011 at 11:45 am #

    Dear Richard,

    Many thanks for permitting me to post your indepth and thought-provoking article on Reflections.

    Clashes between “sovereignty” and “intervention” are not new. While the end of the Cold War was a cause for celebration, it is only in recent years that the risks of a world that is unipolar in a miliatary sense have become increasingly obvious; above all, the dangers of someone possessing military force of exceptional ferocity to stop caring, and instead shamelessly flaunting and employing their power for destructive purposes. The civil society in such moments naturally feels depressed, but it need not be the case. For we know that such challenging times have come in history. and exceptional military powers have had to bow down in the end. Before that moment arrives again, I fear that sacrifices will have to be made.

    Your proposal for a Global Parliament and a UN Humanitarian Emergency Peace Fund must be a way forward. I suspect the proposal is so revolutionary that, in the short run, at least some permanent members of the Security Council will see it as a direct challenge to them. The most serious flaw of the United Nations system, as it stands today, lies in the inability of anyone else to control that small body that represents the vestiges of World War II more than six dacades before.

    For the reasons mentioned above, easy and rapid change will be difficult. Perhaps with small beginnings the establishment of a UN Humanitarian Emergency Fund (under the auspices of the Human Rights Council/General Assembly) could be the answer. The beginnings, certainly in terms of the size of such a fund, will need to be humble, for many of the world’s wealthy will probably boycott it. It will be a test of wills. We already see famine and hunger spreading in Africa, but powerful nations focus on war, and their own economic crises.

    • rogueoperator July 18, 2011 at 5:32 am #

      I was mistaken in commenting on your blog as if it was your piece, deepak. When I was reading the piece, I thought you were commenting on a Falk article. Best, RO

      • deepaktripathi July 18, 2011 at 8:18 am #

        On my blog, it is labeled as Richard’s article right at the start. I did take it to mean you were indeed commenting on Richard’s piece. Anyway it is posted under his name and his article on my blog.

    • rogueoperator July 18, 2011 at 4:59 pm #

      Absolutely. Everything is there in black and white.

  5. rogueoperator July 18, 2011 at 5:33 am #

    I was pleased in seeing the author come to the following conclusion, which I find to be sensible and humane:

    “When it comes to severe human rights abuses somewhat analogous considerations apply. In almost every instance, deference to internal dynamics seems preferable to intervention-from-without, while soft power interventions-from-below-and-without are to be encouraged as expressions of emergent global democracy. Victimization and collective acute vulnerability should not be insulated from assistance by rigid notions of sovereignty, but nor should self-determination be jeopardized by the hypocritical moral pretensions of hegemonic states. This is inevitably a delicate balance, but the alternative is to opt for extremes of passivity or activism.”

  6. John Lyman July 23, 2011 at 9:54 am #

    Thank you again for giving me the go ahead. The article can be found at

    http://www.jofr.org

    • Richard Falk July 23, 2011 at 10:31 am #

      Thanks, Ray, I take your words seriously, and try my best to ignore the harsh tone
      of hostile comments and commentary.

  7. monalisa July 24, 2011 at 3:13 am #

    You made a very good and realistic outline concerning the different political willpowers executed during the past 100 years.

    However, I don’t agree with only ONE global justice and legal united nations corpus.
    This because ONE is usually very likely be overthrown by political and as we yet clearly are seeing military powers.

    Whereas I would suggest that each continent should form its own Continent Justice and Social Corpus. And then bound togehter.
    At least I think with about five or seven such formed powers a more secure outcome could be expected and too much manipulation and military willpower would or could be better avoided.
    It would be difficult – I think – when the majority from seven or five such bodies have to find a solution.

    Nowadays we have the military power speaking and nothing is held against its devastating overthrowing of countries.
    Alone seeing what is done at the present with Libya:
    NATO bombings continue, at least SEVEN Western countries are bombing ONE country !! I cannot say this shows a development of cultural and geosocial aspects !! Not to speak where the billions of dollars of Libya are going: at the moment the rebells will be supported with weapos – thus providing Western big corporations more money.
    Instead of trying to look after peace and proceed with the big water project in the Sahara: Greening the Sahara !!

    So I think about SEVEN bodies representing the seven continents would much more sufficient to overcome political and military sovereignities and secure a more global security.

    Not to forget: in our times there should be much much more global thinking. We could maybe learn how societies will overcome differences when looking what is really needed.
    With less poor and exploited countries the world population would not so much rise. We see that in some Western countries, i.e. Europe. More education, more social/medical networks had supported a better living status.
    Unfortunately this is now declining !!

    Anyhow, I don’t think that ONE body will be able to secure a better and social more secure world without exploitation by corporate bodies supported by politicans mostly of Western origin.
    What we see now is the exploitation on the cost of innocent people, children being sick, millions of orphans, millions dying from hunger.

    Instead that all these billions of dollars spent for global way of thinking and looking what will be really needed all this money is used for destruction und murdering populations in Middle East and African countries.
    Figthing global climate change and giving people – also in the United States – more possibilities to get a decent income and new business markets to be opened/founded.
    There would be enough to do: the Pacific, the Atlantic are desastrous overfished, desastrous dirty. The air is polluted.
    Each bomb with warheads of DU-material (= depleted uranium) is adding to more pollution of radiation in the air. These particles are very tiny so they travel easily with the global winds.

    We are far away of seeing what is really needed on our earth:
    a global way of thinking as we all share the same air.
    We all need clean water.

    Only an irregular number of bodies representing the different needs of the different continents would secure a more global way of thinking.

    The military and political expressed Western powers are still in the state of thinking as two thousand years ago.
    And democracy declines accordingly.
    This will only add to more pollution everyqhere.

    • Richard Falk July 24, 2011 at 7:23 am #

      I appreciate your thoughtful comment, and agree with the central theme suggesting that any kind of political unification would be premature and undesirable at this stage, and that a regionally organized world order would work better. The challenge in such a system would be two-fold: how to deal with the global projection of power by the U.S. and how to engage in global problem-solving to deal with global warming and related challenges.

  8. pamela July 26, 2011 at 5:15 am #

    Under your final comment about the cartoon confusion, I posted a comment on July 12, 2011 at 5:43 am: “Daily, at the U.N. we can all watch the bi-polarism of the world expressed: Identity politics and geographic economics, both, being promoted in a ‘salad dressing of delusion’, bottled, labelled, and “sold” as ‘Human Rights’.It’s like trying to mix oil with vinegar, the delusion must be constantly shook or the ingredients will separate.” Thank you for your essay, it provides historical back-drop on the very paradox I was thinking about at the time.

  9. Dsd Sds October 24, 2012 at 2:15 am #

    There is no dilemma in sovereignty of nations .It acts a firewall against a one world government that is hell bent to exterminate the most people it can and control the entire planet for eternity .The United Nations is the worst enemy of all of mankind on this planet . It was engineered from the start with one goal to make a One World Government .The elites like the Rothschild banking families , the Rockefeller and the top wealthy fifty families of the planet many of them Royal families own the UN lock stock and barrel. They set it up and they control it through many organizations such as the Trilateral Org the Bilderberg org Club Serra Club of Rome to name a few .The Elites of the world wish to rule the world from the UN which none of us normal peoples would ever elect into a position of power .From the UN these unelected Tzars would tell sovereign nations everything from how many children people could have to who will be the euthanasia victims because they are too old, too sick ,too troublesome or a useless eater .The proof the UN conspires in this is all over the planet One good example of the UN conspiracy is the 2003 invasion of Iraq. The UN went all over Iraq looking for hidden weapons of mass destruction (WMD). The reality is the USA in the 1990’s sold Iraq all the WMD’s it owned .
    Iraq never had any ability to make WMD’s and that was just said to cover the fact that the USA sold them all the WMD’s. The USA and the UN both knew the shelf life of the WMD’s was short so that by ~1996 the WMD were useless as weapon’s. The idea that Husein after 10 years of sanction’s could produce more was laughable among the WMD’s experts and best could make be a few tons.That’s nothing like the 600 tons that were missing. The USA and UN knew the original amount of WMD’s that Iraq had in 1990 was 900 tons and the UN supervised the destruction of 300 tons of it .Then Husein decided to stop the destruction of the remaining 600 tons with hiding them away or refusing to say what happened to them. In fact the reason for this could have been in the war with Kuwait in 1991 some or even most of the 600m tons of the WMD’s may have been destroyed by the allied forces .Some exerts even suggest that could explain the gulf war syndrome that made many hundreds of thousands of allied soldiers sick and and many thousands die a few years to decades later after the 1991 first gulf war.
    If the UN had said in 2002 that there was no real possibility that Iraq had WMD’s as the shelf life of them made them useless in 2002 there was no possibility for the 2003 Iraq war.The UN in this case deliberately suppressed expert advice and knowledge to tacitly allow the Iraq war to go ahead without having to give the UN say so so they UN could claim clean hands .
    There are many examples of how the UN conspires like in Iraq to either allow a war or block assistance to peoples who need it to save them from a tyranny .Then the UN shouts dammed if do and dammed if you don’t .That is done by the UN so that eventually people will demand the UN becomes the police man of the globe and later the One World Government. If the UN does get this One World Government the elites plans for the UN is to make it a hard core communist regime .The UN like all communist regimes before it will then exterminate peoples and dissenters in the many millions .In the case of the UN save the planet false science agenda that will require the extermination of peoples in the Billions to reduce the pollution they say exists .Modern science shows that pollution events are easily reduced and controlled with modern science .However the UN employs false science to show the UN population reduction agenda is the only way forward. Give me the dilemma of the sovereign state any day and ban and dismember the UN ASAP
    SO I suspect your pro bias for UN filter will block my post. If it does then at least I will know your true agenda isn’t as a unsuspecting victim to UN propaganda and your part of the UN agenda and I can expose you for that . If you do print the comment then get to know the unlimited growth UN dragon your feeding. It will become the UN dragon that eats you up too along with billions of others who don’t see the UN dragon is not there for humanities benefit .

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  1. TRANSCEND MEDIA SERVICE » Dilemmas of Sovereignty and Intervention - July 18, 2011

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  2. A jurisprudence of conscience An international double standard is dividing the international community between the victorious and the defeated. By Richard Falk | ikners.com - November 22, 2011

    […] Dilemmas of Sovereignty and Intervention (richardfalk.wordpress.com) […]

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