Part I of a Two-Part Post
There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:
- The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
- The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
- The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
- The supposedly inevitable abuse of the doctrine.
The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see here, here, here, here and here).
That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion.
Balancing Sovereignty and Human Rights?
The first myth is that forcible humanitarian action is the invention of powerful, imperialist states, aiming to force their interest on others. There are in fact very few international legal precepts enjoying the unbroken and impressive legal pedigree that adheres to the principle of forcible humanitarian action since the very foundation of international law during the renaissance. While the relationship of loyalty between monarch and citizens made it difficult for a range of classical authorities to endorse a right of populations to resist their own, personal sovereign, there was near unanimity of view that other sovereigns, or states, did have a right or duty to act on behalf of manifestly mistreated populations.
Contrary to prejudice, this view was not overturned by the advent of the doctrine of sovereignty. Jean Bodin, taken by many as the originator of the doctrine of absolute sovereignty, himself very clearly admitted a right to forcible humanitarian action. His views were nearly unanimously adopted by the principal authorities in international law during the absolutist age, including Zouche, Gentili, Grotius and Vattel. When nationalism and enlightenment social contract theory fused in the nineteenth century to consolidate a view of mono-dimensional sovereignty, the doctrine of forcible humanitarian action remained dominant. This view prevailed up to the League of Nations period, as is evidenced in Stowell’s vast treatment of practice and doctrine of that time.
Subsequent hostility to the doctrine was in line with the demands of the Cold War era. During this period, much reference was made to self-determination and the rights or people freely to choose their economic, political and social system. However, in practice, governance was not questioned. Instead of legitimacy of the exercise of state authority, the doctrine of effectiveness prevailed. Self-determination in its internal sense was translated into a doctrine of non-intervention which protected and preserved whatever authority might have managed to capture power, rather than the rights and interests of the people. As the Cold War was a violent contest about social systems and the nature of governance, it is no wonder that the issue of the manifest abuse of governmental power had to be effectively excluded from international law.
However, with the end of the Cold War, the principle that the authority to govern is based on, and must be limited by, the interest of the people has gained in prominence again. The question of forcible humanitarian action represents the sharp end of that development.
Already in 1999, in the wake of NATO action in relation to Kosovo, then UN Secretary-General Kofi Annan, referring to the ‘developing international norm in favour of intervention to protect civilians from wholesale slaughter’ noted that ‘state sovereignty, in its most basis sense, is being redefined … . States are now widely understood to be instruments at the service of their peoples, and not vice versa’ [Kofi Annan, ‘Two Concepts of Sovereignty’, The Economist, 16 September 1999].
It has of course long been recognized that the principle of state sovereignty is subject to human rights and elementary considerations of humanity. The principle of non-intervention expressed in Article 2(7) of the Charter and customary international law does not preclude international interest or even action in relation to manifest abuses against a population perpetrated by its own government.
This universal interest in violations of this kind is recognized through the doctrine of serious violations of peremptory norms in international law. Violations of these most fundamental and universal rules of humanity expressly affect the ‘international community as a whole’ and permit an international response. States are under obligations not to recognize the situation that obtains from such egregious violations, not to assist the state concerned in maintaining that situation in place, and to cooperate in seeking to overturn it.
The UN Security Council has recognized, as early as 1992 in relation to the grave humanitarian crisis in Somalia, that circumstances of extreme humanitarian emergency constitute not only an affront against universal moral and legal principles, but that they can amount to a ‘threat to international peace and security’ [SC Resolution 794]. This technical legal term from the UN Charter describes the most severe form of challenge to the international legal order—so severe that it can be addressed through forcible collective measures.
Some argue that sovereignty, or at least reliance on the doctrine of non-intervention, are suspended where a government manifestly mistreats its own population. Others note that human rights trump sovereignty where the two clash. However, it may be somewhat antiquated to assume that sovereignty and the rights and interests of citizens stand in opposition. Instead, the essence of sovereignty lies in the state function of securing the rights and interests of the true sovereign—the population. The powers of the state and government are dedicated towards, derived from, and conditioned by, this requirement.
The shift in the interpretation of sovereignty away from a right dedicated to the preservation of governments, however abusive, to a doctrine that seeks to empower and protect populations is of course evident in the inauguration of the doctrine of responsibility to protect (R2P) and its endorsement by the international community as a whole. That doctrine holds that governments are required, in the first instance, to ensure the survival and, to the extent possible, the wellbeing of the population. Where they are manifestly unwilling or unable to do this, other agents of the international system, in particular the Security Council, can step in and discharge this obligation.
A Theory of Representation
This proposition accords with long-standing trends in the development of international law. These are instances where the effective authority of a government does not translate itself into an exclusive right to represent the state or its population to the full:
- It is axiomatic that colonial rule, however effective, does not translate itself into full powers to represent the colonial population internationally, in view of the universal rejection of the practice of colonialism. The UN established the UN Council for Namibia to substitute for the effective but unlawful South African authorities;
- Armed occupation too does not result in power to represent, given the imposed nature of governance, as was demonstrated when the government of Kuwait continued to represent the state after it had been entirely submerged in unlawful Iraqi occupation;
- Persistent internal armed conflict involving long-term loss of control over significant parts of territory or population will result in partial loss of the power of the government to represent the state in relation to the use of force issue. This is evidenced by the routine practice of the UN Security Council of imposing arms embargos on both the government and the armed opposition (Syria being the exception, due to the application of a double veto) until fresh elections have been held;
- A government, however effective, brought into power by a counter-constitutional coup or maintained in power by failing to implement an election result, is not taken to represent the state, as has been demonstrated by a series of some 20 cases of action by the Security Council following the case of Haiti (1994) and by the African Union. Manifestly, a government that overturns the social contract it is meant to administer, or which has just been directly disowned by the population in elections, cannot claim to represent that population;
- Arguably, a government loses full authority to represent in the wake of very widespread public dissociation from it, answered by unconstitutional or internationally unlawful means, as occurred when the National Transitional Council of Libya obtained widespread recognition from States, the African Union, the EU and even the Libyan seat in the UN by 114 votes to 17, with 14 abstentions [GA/11137, 16 September 2011]; and
- International action can be taken directly on behalf of threatened populations in the wake of governmental collapse, as was the case in Somalia from 1991 onwards.
The same applies in cases where a government actively destroys or forcibly displaces a population or significant population segment, or denies to it what is necessary for its survival. The government destroying a population simply cannot at the same time rely on the legal expression of the collective rights of that population in the shape of the doctrine of sovereignty and non-intervention to exclude action necessary for the survival of that population. Instead, as R2P suggests, action can be taken directly on behalf of the true sovereign, the population. The use of force in such instances is thus justified by virtue of the actual or implied consent of the actual sovereign, the population. It is manifestly reasonable to imply that, at a minimum, a population would wish for action preserving it from destruction—forcible humanitarian action does not justify action going beyond that immediate aim. It would on the other hand be absurd to require the consent for international action to preserve the population from the very government intent on destroying it.
Mr Jake Rylatt kindly offered corrections and comment.