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Sovereignty Vs Humanitarian Intervention Politics Essay

Info: 5446 words (22 pages) Essay
Published: 1st Jan 2015 in Politics

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States are sovereign entities that comprise a territory, a population, a legal framework, cohesive force and institutions. Traditionally state is characterised as sovereign when it has no authority preceding over it. In international relations, the concept of state sovereignty is fundamental.

Today, the old concept of sovereignty has gradually eroded as states accept more and more limits on their freedom, and as the rights of individuals become more important instead.

Notably after the League of Nations failed to prevent World War II the United Nations was established in 1945 with the major aim of maintaining international peace and security through effective collective measures and peaceful settlement of dispute, to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human right. [1] 

Instances of military force application in violation of the well founded principles of sovereignty and non-interference in a state’s internal affairs, laid down under Article 2(4) of the United Nations (UN) Charter, continue to raise questions within the international community.

In light of the difficult or impossible nature of setting out a definition of sovereignty, my challenge is not to exactly delineate what comprises sovereignty, but to better communicate how it works and how it change and transform under new conditions.

This research proposes a framework for analysing issues raised by relationships between the state sovereignty and humanitarian intervention by international organizations. I will examine the traditional duties and aims of the International Organizations and how it has changed with time. I will study the term sovereignty alongside the intervention of IO in internal and international crisis.

My aim is to provide an overview on United Nations – NATO’s operation in Libya against the government of Mummer Gaddafi which has been the subject of evolving domestic and international military intervention.

The international response to the crisis in Libya has been remarkably quick and decisive. Where many other cases of mass atrocity crimes have failed to generate sufficient and timely political will to protect civilians at risk, the early response to Libya in 2011 has shown that the United Nations Security Council is able to give effect to the ‘responsibility to protect’ norm.

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Notably, on the 17th of March 2011 United Nations Security Council adopted resolution 1973 establishing no fly zone in Libya airspace and also authorizing member states to take necessary measures in protecting civilians especially the civilian populated area which is under treat alert by Libya Arab Jamahiriya. It was in response to this that the US established operation Odyssey Dawn which commenced on 19 March (just two days after UN adopted Resolution 1973) among other.

The conflict in Libya is by far the bloodiest in a sequence of recent uprisings against regimes in the Middle East and North Africa. Beginning in the port city of Benghazi on 17 February, fighting escalated across the country, with some areas changing hands numerous times during fierce battles between forces loyal to Muammar Gaddafi and rebels opposed to his regime. There were consistent reports of widespread and systematic violations of international humanitarian and human rights law, primarily by pro-Gaddafi forces, paramilitaries and mercenaries. [2] 

The intervention in Libya is founded on a growing principle in international law that, where a state is failing to protect its own citizens from systematic violations of international humanitarian and human rights law, other states have a legal right, even an obligation, to intervene.

Notably, when states sign the UN Charter, they pledge not to use or threaten force “against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.” [3] The Charter provides some guidance by explicitly specifying two general circumstances in which force may be exercised.

First, Article 51 of the Charter affirms the inherent right of states to use force in individual or collective self-defence against armed attacks. Security Council resolutions conceivably provide judgments on the merit of self-defence claims. An example is Resolution 1373, which reaffirms the right of the U.S. to act forcefully in its self-defence against terrorist activities and de facto legitimized the U.S. military action in Afghanistan.

Second, Charter VII of the Charter lays out a set of procedures through which the Security Council can authorize uses of force in response to the “existence of any threat to the peace, breach of the peace, or act of aggression.” [4] 

Military action in Libya was sanctioned by the Security Council under Charter VII of the UN Charter, which allows for such intervention in the case of a threat to international peace and security which they have interpreted as including grave threats to civilians. [5] 

The military intervention in Libya on the basis of United Nations Security Council Resolution 1973 raises important questions with regard to the legality and legitimacy of forceful regime change. While the resolution is in accordance with the generally accepted post-Cold War practice of the Security Council, its scope and limits are not entirely clear. [6] 

Essentially, the rationale of humanitarian intervention pulls in two directions. On one hand, from a realist perspective, the inviolability of state’s sovereign rights is given supremacy. States are forbidden to use armed forces against the territorial integrity of another state, except for self-defence. Therefore, intervention is not permissible. On the other hand, intervention is justified from a more liberal approach to punish wrongs and to protect the innocent. The United Nations on several occasions have authorized use of force, however, in certain cases some states have acted unilaterally. In this context, it is expedient to look closely into the factors that influence such decisions – singling out the underlying the moral dilemma and the relevant political and legal implications. [7] 

At the end of this research we shall be able to justify the implication of the growing power of international organizations on international system.

CHAPTER 2

LITERATURE REVIEW

THE CONCEPT OF SOVEREIGNTY

There are various definitions given towards understanding sovereignty. Sovereignty is seen as:

“The most extensive form of jurisdiction under international law. In general terms it denotes full and unchallengeable power over a piece of territory and all the persons from time to time therein”. [8] 

Krasner identifies four cardinal ways in which sovereignty is commonly used. Firstly, domestic sovereignty which refers to the organization of political authority within a state and the level of control enjoyed by a state. Secondly, Interdependence sovereignty which is concerned with the question of control, for example, the ability of a state to control movements across its own borders. Thirdly, International legal sovereignty, which is concerned with establishing the status of a political entity in the international system. The state is treated at the international level similarly to the individual at the national level. Lastly, Westphalian sovereignty which is understood as an institutional arrangement for organizing political life and is based on two principles namely, territoriality and the exclusion of external factors from domestic structures of authority. Westphalian sovereignty is violated when external factors influence or determine the domestic authority structures. This form of sovereignty can be compromised through intervention as well as through invitation, when a state voluntarily subjects internal authority structures to external constraints. [9] 

There are two major points of view with regard to the concept of sovereignty. The first view is that sovereignty means absolute power above the law and that absolute sovereignty constitutes one of the most powerful and inviolable principles in international law. [10] 

The second view is that it is of utmost significance that states, as the most important subjects of international law do not claim that they are above the law or that international law does not bind them. [11] 

The traditional understanding of sovereignty as independence and supreme authority may be attributed to the work of Jean Bodin. In his view, Bodin asserted that the concept of sovereignty primarily entails the absolute and sole competence of law making within the territorial boundaries of a state and that the state would not tolerate any longer law creating agent above it. He maintains that sovereignty as the supreme power within a state cannot be restricted except by the laws of God and by natural law. No constitution can limit sovereignty and therefore a sovereign is regarded to be above positive law. [12] 

According to Bodin’s theory of sovereignty, the sovereign power is bound by international law, which results either from treaties or from divine or natural law. [13] 

Although Bodin’s conception of sovereignty as introduced in the sixteenth century was accepted by writers on politics, the majority of these writers held the opinion that sovereignty may be restricted by a constitution and by positive law. However, in the seventeenth century Hobbes (1588-1679) went even further than Bodin by stating that a sovereign was not bound by anything and had a right over everything including religion. [14] Pufendorf refuted the claims that sovereignty is omnipotence. According to him sovereignty is the supreme power of a state but not the absolute power. Sovereignty may therefore be constitutionally restricted. [15] 

At this juncture, it must be stated in clear terms that legal sovereignty is quite different from political sovereignty. Legal sovereignty is the authority which has the power to issue final commands. This is the supreme law making power. Whereas, political sovereignty is the power behind the legal sovereign, or the sum of the influences that operate upon it. This is legally unknown, unorganized and incapable of expressing the will of the state in the form of legal command. But, it is this will that must ultimately prevail in the state. In a narrower sense, the electorate constitutes the political sovereign and in a broader sense the whole mass of population. [16] .

B. THE EMERGENCE OF WESTPHALIA STATE SYSTEM

In Prague in 1618, religious tensions within the Holy Roman Empire reached a braking point as a group of Protestants tried three Catholics for violating Protestant rights to religious freedom, found them guilty and threw them out of the window. This action plunged Europe into a destructive war that lasted for thirty years. The war that began as a conflict between Protestants and Catholics became something bigger, as Catholic France took the side of the German Protestants against the so called Catholic Habsburgs.

The governments of Sweden and Denmark, while claiming to be fighting for the ideals of Protestantism also saw the War as an opportunity to gain land. Spain ruled by a branch of the Habsburg family joined the war to protect her interest in the Spanish Netherlands. Much of the fighting took place within the Holy Roman Empire and the number of casualties made the Thirty Years War the most destructive of the religious conflicts of the sixteenth and seventeenth centuries.

Three treaties which include the Treaty of Osnabruck, the Treaty of Munster and the Treaty of the Pyrenees ended the war in 1648. According to historians, the 1648 Treaty changed the way nation states interacted with each other forever. International Relations scholars have traditionally regarded the Peace of Westphalia as a set of revolutionary documents; creating a new wave of nationalism in Europe and redefining what is meant to be an independent nation. [17] 

Indeed, the Peace of Westphalia is so strongly associated with this model of the nation-state that today’s international relations scholars refer to the current model of nations as “Westphalian sovereignty” and describe modern society as living under the “Westphalian system”. [18] 

A Westphalian nation-state has two main characteristics: a specific area of land which is considered part of the nation, called territoriality and a ruling structure that has the ultimate power to rule over the nation without yielding to any external agency. [19] 

The latter position is especially important; to be a sovereign nation, authority cannot come from outside the state. Conversely, the authority of a Westphalian nation-state is limited to the boundaries that define the nation’s territory. This concept is called territorial integrity and is an important aspect of relations between two Westphalian nation-states. [20] 

The peace of Westphalia laid the foundation for an international order based on independent sovereign states. [21] 

Leo Gross explores the traditional view of the Peace of Westphalia, which was held that the Peace was the starting point in the development of nations. According to Leo Gross, the Peace of Westphalia did indeed usher in an age of nation-states. With the Pope’s power waning after 1648, the Monarchs of Europe were forced to redefine their relationships with each other. [22] 

As Gross put it, the key aspects of Westphalia were the concept of sovereignty and the agreement to non-interference in the internal matters of other states. In recognizing sovereignty, each ruler agreed that while there were no equals to the ruler inside the kingdom, there were no superiors outside of the borders. [23] 

The Peace of Westphalia recognized the equality of states as a principle of modern international law. The equality of states was recognized irrespective of their Catholic or Protestant faith and of their monarchical or republican form of government. Both the Treaty of Munster and the Treaty of Osnabruck formally ended the medieval conception of a society of states that is organized hierarchically and thus on the basis of inequality. [24] 

The nation-state was seen as an instrument of effective power and international law was regarded as a law between the free and independent states which were primarily concerned with the promotion of their individual interests. [25] 

The Peace of Westphalia, however obliged states to defend and protect the peace and thereby combined the principle of sovereignty with a duty to co-operate. [26] 

C. UNITED NATIONS AND SOVEREIGNTY

In 1919, head of states met at Versailles conference to create a global IO in the League of Nations. League of Nations was established in the aftermath of World War in other to avoid a repetition of such disaster.

The United Nations was established in 1945 after the League of Nations failed to prevent World War II. This idea was coined by United States President Franklin D. Roosevelt.

Its (UN) major aim is to maintain international peace and security through effective collective measures and peaceful settlement of dispute, to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human right. [27] 

The idea of sovereignty as absolute authority has never in practice existed. Sovereignty, as a legal principle and a normative claim, is shaped and redefined by the changing circumstances and international environment in which it exists.

Tension between sovereignty versus intervention has been palpable for decades. Some countries stress the enforcement powers laid down by Chapter VII. Others (mostly in the poor world) insist that state sovereignty always trumps, even in humanitarian emergencies.

In practice, since the end of the cold war the UN has been intervening more often in conflicts within (as opposed to between) states. Sometimes it has happened with, and sometimes without, the consent of the governments concerned.

The Preamble and Chapter I of the Charter spell out the scope (including the outer limits) of international concern and the limitations on sovereignty. [28] 

For example, Article 1(1) States that the organization is based on the principle of sovereign equality of member States. [29] Article 2(7) comes closest to defining sovereignty by indicating that the UN is not authorized to intervene in matters essentially within the domestic jurisdiction of any State. [30] This article could as well be read in light of Article 2(4), which prohibits the threat or use of force to attack the territorial integrity or political independence of any State. [31] Among the specific restrictions on State sovereignty in Article (2) are that States are subject to a good faith obligation to honour charter values and that they must settle disputes by peaceful methods. [32] 

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A further criterion that strengthens the principle that the UN Charter is a sovereignty dominated instrument is found in the membership provisions of Chapter II. Article 3(1) States that the original members of the UN shall be States.. [33] Article 4 States that membership in the UN is open to all other peace loving States which accept the obligations contained in the Charter.. [34] Although membership in the UN is exclusively a matter of State sovereignty, an institutional set of limits is imposed: the State must be peace-loving and accept all charter obligations and accept the obligations of international law as developed under the Charter. Article 6 does stipulate that a State may be expelled from the UN if it is a persistent violator of the UN Charter. [35] 

Article 6 puts into perspective the idea that the sovereign equality of States is conditioned by UN Charter obligations and that a persistent violation of these obligations erodes the authority of the sovereignty of the State itself. [36] In short, the Charter supports and seeks to protect and advance a particular form of good governance-oriented sovereignty. It also seeks to discourage other forms of sovereignty associated with State absolutism, which seeks to position sovereignty above Charter obligations.

There are, of course, other UN Charter limits on sovereignty that emerge from the creation of the institutions of decision-making that comprise the UN. For example, Chapter IV, which outlines the composition and workings of the General Assembly, gives the Assembly the power to highlight any issue and mobilize Assembly opinion by making it a matter for international discussion and elaboration. Specifically, the General Assembly States that Article 10 may discuss any matter within the scope of the Charter… [37] In addition, the Assembly has the power to initiate studies and make recommendations [38] . Assembly recommendations may even be a form of soft international law making that might be binding on sovereign States in limited circumstances. [39] 

D. JUSTIFYING UNITED NATIONS HUMANITARIAN INTERVENTION

The legality of humanitarian intervention should be appraised in light of the international human rights norms that have transformed dramatically over the last fifty years. Today, these norms impose much stronger obligations upon states to treat their nationals in accordance with international standards. [40] Several norms are aimed at safeguarding human rights. The Preamble of the U.N. Charter expresses the people’s determination to re-affirm faith in fundamental human rights, in the dignity of and worth of the human person,” and a dedication to “ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest.” [41] These provisions are frequently considered to legally justify or at least encourage humanitarian interventions. [42] Proponents of humanitarian interventions argue that these provisions of the Preamble, along with Articles 1, 55 and 56 create a positive obligation for member states’ action defending human rights. [43] 

As noted, after the advent of the U.N., a substantial body of human rights conventions was adopted, exposing participating states to international scrutiny and imposing severe obligations. In particular, the Genocide Convention not only makes genocide an international crime, but authorizes its signatories to “undertake (efforts) to prevent and to punish” acts of genocide. [44] 

In another important decision, the Court specifically stated that due to the importance of human rights, “all states can be held to have a legal interest in their protection”. [45] The Court specified that “such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of human person, including protection from slavery and racial discrimination”. [46] Nevertheless, humanitarian intervention may be justified as protecting basic human rights because such action is not waging war. [47] Where human rights are egregiously violated, a state should consider two conflicting obligations: the obligation to protect nationals abroad and the obligation to avoid the threat and use of force in international relations. [48] If the values embodied in the obligation to protect human rights outweigh those embraced in the obligation to refrain from using force, then a state may interfere to prevent human rights abuses. [49] 

If the use of force is employed consistently with other principles of the U.N. Charter without been directed against territorial integrity or political independence, it “may be commendable rather than necessarily forbidden by the Charter”. [50] 

Therefore, if the force is employed for a legitimate purpose, such as to put an end to human rights abuses, it conforms to the U.N. Charter’s fundamental principles. [51] 

Different arguments have been advanced to justify using force to rescue or protect nationals abroad. Firstly, an emergency need to save lives; secondly, legitimate self-defense and non-derogation of territorial integrity and political integrity and political independence of the state in whose territory the action occurred. [52] A classical study of the use of force enumerated three conditions under which a state may use force abroad in self-defence to protect its nationals. There must be “an imminent threat of injury to nationals, a failure or inability on the part of the territorial sovereign to protect them and measures of protection strictly confined to the object of protecting them against injury”. [53] 

I. UNITED NATIONS INTERVENTION IN IRAQ: CASE STUDY OF 1990 GULF WAR

After Iraq’s invasion of Kuwait on August 2 1990, the Council delegated its Chapter VII powers to the US- led coalition and did not take up the matter until Operation Desert Storm had finished and a ceasefire agreement had been formulated. [54] 

Initially, the Security Council adopted 12 Chapter VII resolutions on different aspects of the crisis in an attempt to force Iraq to withdraw through the use of sanctions. [55] 

In order to deter Iraq from invading Saudi Arabia as well, on August 8 US President George Bush announced that US troops will be deployed there. Four US objectives were articulated for what was labeled Operation Desert Shield: Kuwait’s liberation; the restoration of Kuwait’s government; the security and stability of Saudi Arabia and the entire Gulf region; and the protection of US citizens. [56] 

When Iraq ignored the warnings to withdraw from Kuwait, the UN Resolution 678 demanded Iraq to comply with previous UN resolutions asking its withdrawal, and authorized member states to co-operate with Kuwait using “all necessary means” to restore peace to that area. Consequently, Operation Desert Storm began on 17 January and ended in March 1991. [57] 

Iraq’s invasion of Kuwait was the first, and remains the only, occasion where a member of the UN had its whole territory occupied by another state. [58] 

It must be noted that the war’s objectives far exceeded the mandated mission to restore Kuwaiti sovereignty, and the military action of the coalition force generated new security and legal problems. [59] 

The use of force to destroy the civilian infrastructure of Iraq, continuation of fire against Iraqi troops withdrawing from Kuwait and breakdown of Iraq’s internal order were regarded as some of the abuses of the US-led coalition. Even, there was a criticism that the UN hastily started the operation as a result of the US pressure without exhausting all the non-military measures. [60] 

However, after the victory of the UN coalition against Iraq, the UN shared the success and increased its prestige. The US-led military action in the Gulf regarded as an example of stronger UN after the Cold War. But it

 

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