The example of Syria, as many others before, casts doubts about what should the international comunity understand for sovereignty of states. Should the international community allow any government attack its own civilians?Should we act instead?
The United Nations Charter was signed in 1945 regarding another
concept of what in international law was understood as sovereignty, thus many
of its articles reflect the importance of respecting the integrity of states as
the only sovereigns and allow military intervention only in cases of international
conflict.
Chapter VII of the Charter contains the cases in which the Security
Council could allow the use of force in order to “maintain or restore
international peace and security”(article 39 Charter), thus anything is said
about internal conflicts that affect only one state. When we are not in front of an international conflict we can't apply these rules.
That seems deceiving , specially because after the signature of this Charter the international community
has witnessed situations where an international action was needed in order to
protect civilians from their own government, however Chapter VII does not recognize
the right of the UN Security Council to allow the use of force in these cases, even to protect civilians.
But after the Cold War the UN Security Council allowed the use of
force in order to address some of these threats supporting its position in the
fact that certain intervention was legitimate since human rights violations in these cases were
also threatening international peace and security, some of the most important
cases are the intervention in Iraq in 1991, the intervention in Somalia in 1992, and
the intervention in the Former Yugoslavia in 1992 and in Rwanda in 1994, conflicts that we will adress in this blog in further posts.
But in 1999 the effectiveness of the UN model to face and finish off
human rights threatens was called into question with the case of Kosovo, when
the veto system of the UN Security Council blocked the possibility of allowing
the use of force. Hence NATO intervened without a previous authorization of UN
bypassing the international organization in order to protect the civilians.
After these occurrences raised the necessity of a new concept of
international intervention in cases where civilians needed to be protected from
their own governments in their own countries. The Secretary General
Kofi Annan challenged the states to lay out a new concept of national
sovereignty.
An ad hoc commission was created by Gareth Evans, with the consent of Canadian
Foreign Minister Loyd Axworthy, in order
to face this challenge, it was calledthe International Commission on
Intervention and State Sovereignty (ICISS).
The ICISS Commission came up with the Responsibility to Protect concept where the first
responsibility of protecting the rights and lives of civilians relies on the
sovereign state. But it set out what
happens in cases where the state fails in the responsibility to protect its own
civilians or it is the own state the perpetrator of violence against them.
But, doesn't this concept clash with the concept of Sovereign States?
The concept of R2P considers the sovereign state as the first actor
responsible for the protection of its own citizens, and only if the state is
unable or unwilling to protect their own citizens it arises the responsibility
of other states to act in the place of the failing state. This idea is shown in
the Basic principles stated in the ICISS report :
“State sovereignty implies
responsibility, and the primary responsibility for the
protection of its people
lies with the state itself.
Where a population issuffering serious harm,
as a result of internal war, insurgency,
repression orstate failure,
and the state in question is unwilling or unable to halt or
avert it, the principle of
non-intervention yields to the international responsibility
to protect”
From the reading of these principles the first conclusion we reach
is that the concept of sovereignty has some differences with the concept of
sovereignty as it was understood by the time the Charter was written.
Hideaki Shinoda makes an interesting definition of sovereignty as a two-sided concept. On one
hand we talk about internal sovereignty as the exclusive competence of the
state to make decisions with regard to its territory and its citizens. On the
other hand there is a external point of view defining sovereignty as the
identity of the state on legal basis according to international law, meaning the state as the
solely owner of the capacity of representing its citizens in front of the
international community and the right to hold an equality status with regard to
the other states.
Can this classical definition of sovereignty fit in the idea of
sovereignty as the duty of the sovereign state to protect its civilians and as
the right of international community to intervene whether the sovereign state
fails in its duty?
With this question posed I finish this post, we will keep talking about this issue in future posts.