About the author:
Seamus Coleman is currently studying towards a Bachelor of Laws and a Diploma of Arts (Political Science) at Melbourne University. He is a three time quarter finalist at the Australasian Intervarsity Debating Championships (2005, 2006 & 2008) and has been a Grand Finalist at the Australian British Parliamentary Championships (2008). He has also won the ANU Spring Invitational (2009) and ADAM Invitational (2009). Additionally, Seamus is a former President of the Melbourne University Debating Society and will be the Chief Adjudicator of the 2010 Australian Intervarsity Debating Championships. Outside of debating, Seamus was part of the 2008 Australian Philip C Jessup International Law Moot Court Champion team.
Whenever unrest flairs in the world a motion almost invariably appears at intervarsity tournaments held in the months following that calls for an intervention, invasion or a ‗surgical‘ strike against the offending state. For the sake of simplicity, this article will refer to any such military action as intervention. A sample of such motions was found through a search of Colm Flynn‘s debating blog1:
- This House believes that Africa needs international military intervention to solve her most dire conflicts. (Pan African Universities Debating Championships 2008, Grand Final)
- This House would invade Zimbabwe. (Cork IV 2007, Round 2)
- This House supports military intervention to deliver emergency aid in humanitarian crises. (WSDC 2008, Round 1)
- This House would arm local militia to fight the Taliban in Afghanistan. (WUDC 2009, Octofinal)
- This House would assassinate Vladimir Putin. (WUDC 2008, Round 7)
- That international institutions should use force to restrict the sale of small arms to African nations. (Australs 2008, Grand Final — Not Debated)
Utilising Erik Eastaugh‘s useful taxonomy of debates being either about policy or principle, I would place debates about interventions firmly in the former as they ‗tend to revolve principally around a cost/benefit analysis of the proposed measure‘.2 At the end of the day, debates on interventions almost always turn on whether the adjudicator is persuaded that the intervention would make a given crisis and, on occasion, the broader region and international community, better or worse. Those ‗principled‘ arguments that do arise are often more about the systemic costs of an intervention (such as arguments relating to the importance of state sovereignty for international order) or are, in effect, disguised arguments as to the efficacy of the intervention itself (such as arguments focused on post colonialism).
The advantage of understanding the basics of international law has previously been noted in this review.3 Indeed, some motions demand it; for example the 2006 WUDC Octofinal, ‗This House believes that international law should recognise the right of each state to unilaterally undertake armed humanitarian intervention‘. This article will explore what role public international law — the law governing how nation states interact with each other — can play in analysing the costs and benefits of any given intervention. This will involve a discussion of both when interventions are to be considered legal and what regard, if any, states should have to the legality of their actions.
The law of the land or the law of debate land?
For better or worse there is no global legislature and international law is primarily developed through the consent of states; either by directly consenting to obligations in the form of treaties, or by a large number of states tacitly accepting the emergence of a new norm.4 This acceptance must be demonstrated by both a state‘s practices and by a belief that such practices were legal — these latter norms are known as customary international law.5 As a consequence, for international law to emerge diverse states, with divergent interests, need to come to some consensus, making the development of international law particularly difficult in relation to contentious issues like that of when military interventions are legal (see below for a discussion of the current controversy surrounding humanitarian intervention).
In debates about domestic policy, teams almost always propose wholesale legal reform; just think about motions to elect judges, create bills of rights, even those allowing the sale of marijuana or paid surrogacy. In debates relating to international relations this is much rarer. This is most likely because people neither know nor care that much about international law but, it may also be that, unlike in domestic law, the decentralised nature of international law makes such instantaneous reforms unthinkable. If teams were to propose such reforms, their models would sound unviable, thereby hurting their credibility. Additionally, teams unnecessarily give themselves a higher burden by having to show the benefit of both an intervention and a legal reform which unlike in most debates on domestic policy do not have to go hand in hand as the motion does not call for it. The effect of all this is that teams in debates on international relations almost always implicitly or explicitly accept the international legal framework as it currently stands.
So who does care about international law?
A common misconception is that states do not care about international law, as there is no direct enforcement mechanism to ensure its compliance. In the case of interventions, this is factually untrue as the U.N. Security Council can authorise punitive measures to be taken against states who conduct illegal interventions. For example, the Security Council authorised sanctions against Iraq for invading Kuwait.6 There are also indirect methods to ensure that states comply with international law. These include a potential loss of political capital both internally and externally for offending governments, potential exclusion from future international organisations or systems in addition to a desire for reciprocal compliance from other states.
A quick survey of their behaviour confirms that states do have regard to international law. Of the 29 maritime or land boundary disputes heard up to May 2007 by either the International Court of Justice (ICJ) — the United
Nations‘ judicial organ — or its predecessor the Permanent Court of International Justice, only one decision was not complied with by the parties.7 This is in spite of neither the Court nor the successful party having any direct ability to enforce the decision. Britain and America desperately tried to persuade the Security Council and the international community that the invasion of Iraq in 2003 was legal, even though most commentators felt their legal reasoning was dubious.8 Similarly, following the invasion of Afghanistan, the United States did not disregard international law but rather sought to argue that it had been expanded to justify their actions.9 There is a reasonably well accepted norm of international law that allows states to intervene to protect their nationals abroad as a form of self defence;10 it has been suggested that Russia‘s issuing of passports to South Ossetians just prior to their 2008 invasion was an attempt to make the invasion fall within this defence.11
Given that states modify their behaviour based on whether an act is legal or illegal the legality of an intervention can have significant implications. The latter part of this article will address under what circumstances an intervention can be considered legal and what implications this may have in debates. This issue is much too broad to be canvassed fully in this article but it is considered summarily.
When is an intervention legal?
The sovereignty and equality of states are the basic principles of international law.12 Simply defined, sovereignty is the right of a state to exclusive jurisdiction (control) over its territory and the permanent population within it.13 This right places a corresponding obligation upon states; an obligation of non-interference in another state‘s territory or the activities of its population.14 This principle of non-intervention has a very broad definition and prevents not only uses of force but also other, more benign interferences. For example, in the aftermath of Cyclone Nargis when Myanmar‘s governing junta would not allow aid deliveries, the French and US governments both discussed plans to drop food parcels without the consent of the junta. However, these plans were quickly shelved as they would have amounted to a breach of international laws.15
This article will focus on interventions that do constitute use of force since most debates involving interventions will clearly rise to that level. The ICJ has recognised that what constitutes force should be defined broadly and can extend to practices such as providing support to an armed group within another state.16 The United Nations Charter, to which 192 nation states are party,17 outlines in article 2(4):
All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
This prohibition on the use of force has been stated by the ICJ to be the cornerstone of the UN Charter System.18 For a state to use force legally its actions must fall within one of a handful of exceptions to this prohibition.
One obvious exception to the prohibition is when a state gives their permission to another state or an international organisation (such as NATO or the UN) to use force within their borders.19 Obtaining the consent of a state can be particularly important in cases where a permanent member of the Security Council is likely to veto a resolution authorising intervention. Further difficulty arises when a state has no functioning government to give consent, as was the case in Somalia during the time when the UNISOM and UNISOM II missions were conducted, or in Liberia, when the Economic Community of West African States intervened in 1990. There have also been cases of fabricated consent as was seen during the Soviet invasion of Afghanistan and the United States‘ alleged invitation into Grenada in 1984 by Grenada‘s Governor-General.20
An important consequence of an intervention being conducted with the permission of the host state is that any peacekeeping or intervening force has necessarily chosen a side in the conflict. If the force must stay in favour with the government in order to remain involved in the conflict this may alter how they conduct their mission. At the insistence of China, the UNAMID mission — the UN‘s peacekeeping force in Darfur —was only given authorisation to intervene subject to the cooperation of the Sudanese government. This meant that UNAMID‘s mandate did not include the ability to disarm militias nor to arrest those indicted by the International Criminal Court21 — a particularly important limitation given the recent warrant issued by the ICC for Sudanese President Omar Al-Bashir‘s arrest.
United Nations Authorisation
If a state does not give consent to a force being present, the Security Council, acting under Chapter VII of the United Nations Charter, may authorise an intervention. The Security Council has primary responsibility for matters of international peace and security and is generally seen to have a monopoly on the use of force.22 So long as an intervention is conducted in accordance with the resolution authorising it, it will be considered legal.23 Interventions authorised under Chapter VII include the UN missions in the Democratic Republic of the Congo, Sierra Leone, Rwanda, Angola, East Timor and Somalia.24 The obvious limitation to the Security Council being able to authorise the use of force is that the permanent members (Russia, the United States, France, the United Kingdom and China) can veto any resolution attempting to do so.25 The veto, while once a favourite tool of the USSR has, in the last three decades, been most frequently used by the United States.26
One little known (and rarely used) aspect of the United Nations system is the ability of the General Assembly to take action, including military action, on matters of international peace and security where the Security Council fails to act ‗because of [a] lack of unanimity of the permanent members‘;27 in other words, when a permanent member exercises their veto. This is known as Uniting for Peace and is the result of a resolution of the General Assembly that the United States pushed for during the Korean War so they could avoid the USSR‘s veto. An important limitation of this resolution is that it only gives the General Assembly the ability to act when the Security Council has failed to act — it cannot override resolutions or be the primary body for decision making on international peace and security.
Uniting for Peace was first utilised by the General Assembly to authorise the United Nations Emergency Force — a UN force that, ‗secure[d] and supervise[d] the cessation of hostilities‘ during the Suez Canal Crisis.28 Action by the Security Council had been impossible due to the United Kingdom and France exercising their vetoes. Uniting for Peace was also used by Zimbabwe in 1981 to pass a resolution in the General Assembly authorizing sanctions against South Africa29 who were at the time occupying Namibia (then South West Africa) illegally.30
The Uniting for Peace doctrine should inform debates on United Nations reform as the veto may not present as many legal obstacles to action as the Charter first suggests. However, given that it is so rarely used the predominant barrier to having authorised (and therefore, legal) interventions remains the Security Council. If in a debate you are discussing an intervention into a state within the spheres of influence of China, the United States or Russia, you can be reasonably confident that it will not be legal unless it falls within one of the other exceptions to the prohibition on the use of force. If an intervention is not legal, it is likely that only states with a significant vested interest will become involved in the intervention. This occurred during the 2003 Iraq Invasion when states cited the illegality of the war as a reason for not joining the ‗Coalition of the Willing‘.31 Illegality affects who will participate in any given intervention and this should be kept in mind by teams; the cost of an intervening force being anaemic and sourced from a limited group of states with vested interests are all too apparent after the Iraq War.
The United Nations Charter preserves the right of states to use force in self defence.32 Traditionally, self defence does not permit the use of force to prevent anticipated attacks against a state, only attacks past or those imminent.33 So it is unlikely that surgical strikes against North Korea or Iran‘s nuclear facilities would be legal on the basis of self defence as there is no imminent danger to the striking states. Indeed, in 1981 when Israel launched surgical strikes against Iraq‘s nuclear reactors they were condemned as illegal by the Security Council.34 A final point to note on self defence is that states can use force to defend another state if the latter state requests assistance.35 This occurred in 1990 when the United States repelled Iraq‘s invasion of Kuwait at Kuwait‘s request.
Responsibility to Protect and Unilateral Humanitarian Intervention36
Responsibility to Protect, known as R2P, is an amorphous phrase that attempts to encapsulate how the international community should respond to humanitarian crises.37 It places not only an obligation on states to protect their own citizens but also leaves room for the international community to take action when a state fails to do so.38 This idea was first brought to the fore by Gareth Evans, a ‗roving global troubleshooter‘,39 at the International Commission on Intervention and State Sovereignty (‗ICISS‘). The ICISS was an ad hoc commission requested by Kofi Annan, then U.N. Secretary General, and administered by the Canadian government. It sought to address the issue of how the international community should respond to gross human rights violations.
At the 2005 World Summit — a follow-up meeting to the Millennium Summit, the outcomes of which were adopted by the General Assembly — the international community endorsed the concept of R2P.40 The Summit‘s Outcome Document makes clear that a majority of the international community support the idea that when states fail to protect their citizens, action should be taken by the Security Council.41 However, the ambiguity of the doctrine of R2P has left room for both its opponents and proponents to conflate the idea with that of unilateral humanitarian intervention42 — whereby an individual state intervenes in another state for purported humanitarian reasons, without UN authorisation.
Though some commentators disagree, it is generally well accepted that such a right of unilateral humanitarian intervention does not yet exist in international law.43 However, many suggest that it may be an emerging norm.44 As discussed above, for a new norm of international law to emerge there must be consensus amongst states as demonstrated, in part, by their practice. This means that each time a unilateral intervention is launched for humanitarian reasons it strengthens the emergence of the norm of humanitarian intervention. Slippery slope arguments can be useful in a number of contexts45 and for debates on interventions this is particularly true as each intervention will change the legal environment in which future decisions are made. Given that states do change their decision making based on what is or isn‘t legal (see above) allowing one intervention may pave the way for future interventions by changing the law itself. As Kofi Annan told the General Assembly in 1999 such actions ‗could set precedents that result in a proliferation of the unilateral and lawless use of force, with or without credible justification.‘46 There has already been growing reference to humanitarian intervention in the rhetoric used to justify invasions. It was used by the USA after the 2003 Iraq Invasion,47 and was used by Russia during its intervention in South Ossetia.48
The problem with the right of unilateral humanitarian intervention is its potential for abuse. If there is no external decision maker (i.e. the Security Council) to determine what constitutes a grave humanitarian crisis or to monitor an intervention once it has begun it opens the doors for states to conduct interventions for self interested reasons under the guise of preventing humanitarian catastrophes. Kosovo is a good example of where humanitarian aims and political aims were intertwined. The 1999 bombings were done ostensibly to prevent an imminent humanitarian catastrophe but in the lead up to the campaign they were used as a tool to try and leverage recognition of Kosovo by the former Yugoslavia.49
International law is currently in a state of flux in regards to when humanitarian interventions, conducted in the absence of Security Council authorization, are legal. Debaters should be aware of this fact when debating these issues as each individual intervention may create system-wide costs or benefits.
Though admittedly debating is not the best forum for discussing the current state of international law or determining which hypothetical interventions are legal or illegal, having some knowledge of how international law interacts with the way states make decisions can be beneficial. States do modify their decision making in a variety of ways based on the legality of a given course of action. Interventions conducted in self defence, against a consenting state, or with the authorisation of the Security Council or General Assembly, are legal. It is less clear when states may intervene for humanitarian reasons without authorisation.
In a debate the fact that a proposed intervention is legal or illegal matters very little in and of itself. If teams can analyse how an intervention‘s legality changes the involved state‘s behaviour they may be able to demonstrate an additional cost or benefit and get closer to persuading the adjudicator whether or not this House should intervene militarily.
1 Colm Flynn, ‗World Debating Website‘, available at <http://flynn.debating.net/> (accessed 28th July 2009).
2 Erik Eastaugh, ‗How to Win Worlds from Opening Government‘ (2004) 4 Monash Debating Review 22 at 24.
3 Joanna Nairn and Michael Kotrly, ‗How to tackle Worlds‘ (2006) 6 Monash Debating Review 14 at 17.
4 Ian Brownlie, Principles of Public International Law (7th ed), Oxford, Oxford University Press, 2008, p. 3-24.
5 Ibid, p. 6-7. There is no firm rule for how many states must accept a practice for it to become customary international law but uniformity is not required.
6 Security Council Resolution 661. 6 August 1990.
7 Sara Mitchell and Paul Hensel, ‗International Institutions and Compliance with Agreements‘ (2007) 51(4) American Journal of Political Science 721, at 735.
8 The Economist, ‗The legal arguments: Pro, con and muddled‘, March 20th 2003.
9 Martin Dixon and Robert McCorquodale, Cases & Materials on International Law (4th ed.), Oxford, Oxford University Press (2003), p 528.
10 Ian Brownlie, Principles of Public International Law, p. 740.
11 Jim Nichol, ‗Russia-Georgia Conflict in South Ossetia: Context and Implications for U.S. Interests‘ Congressional Research Service Report for Congress, 2008, available at <http://assets.opencrs.com/rpts/RL34618_20080922.pdf> (accessed on 28th July 2009).
12 Ian Brownlie, Principles of Public International Law, p. 289.
13 Ibid, p. 289.
15 Andrew Selth, ‗Even Paranoids Have Enemies: Cyclone Nargis and Myanmar's Fears of Invasion‘ 30(3) Contemporary Southeast Asia 379. For further discussion of this issue see Rebecca Barber, ‗The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study‘ (2009) Journal of Conflict & Security Law 1.
16 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) 1986 ICJ 14.
17 See ‗United Nations Member States‘ available at <http://www.un.org/en/members/growth.shtml> (accessed on 28th July 2009). The only states that are not party to the UN Charter are the Vatican and Kosovo. Additionally, Palestine has permanent observer status.
18 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) 2005 ICJ 10, 53.
19 Martin Dixon and Robert McCorquodale, Cases & Materials on International Law, p. 558.
21 BBC News (Online), ‗Sudan ―will support‖ Darfur force‘, August 1st 2007, available at < http://news.bbc.co.uk/2/hi/africa/6925538.stm> (accessed on 29th July 2009).
22 United Nations Charter, article 24(1).
23 Parties to a conflict must also conduct themselves in accordance with International Humanitarian Law — the law governing armed conflict.
24 Patrik Johansson, ‗UN Security Council Chapter VII resolutions, 1946-2002. An Inventory.‘ Uppsala University: Department of Peace and Conflict Research, 2003, available at <http://www.pcr.uu.se/publications/UCDP_pub/Chapter%20VII%20Resolutions_050921.pdf> (accessed on 29th July, 2009)
25 United Nations Charter, article 27(3).
26 Global Policy Forum, ‗Changing Patterns in the Use of the Veto in the Security Council‘ (2008), available at <http://www.globalpolicy.org/security-council/tables-and-charts-on-the-security-council-0-82/use-of-the-veto.html> (accessed on 28th July 2009).
27 General Assembly Resolution 377A, 3rd November 1950.
28 General Assembly Resolution 1001 (ES-1), 5th November 1956.
29 General Assembly Resolution ES-8/2,16th September 1981.
30 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) 1971 ICJ 16.
31 ‗Iraq War was Illegal, Chirac tells Bush‘ The Irish Examiner, June 4th 2003.
32 United Nations Charter, s 51.
33 Ian Brownlie, Principles of Public International Law, p. 734.
34 Security Council Resolution 487, June 19th 1981.
35 Ian Brownlie, Principles of Public International Law, p. 735.
36 Unilateral in this context means acting without the authorisation of a competent international organisation (almost always the Security Council) and does not necessarily mean one state. NATO‘s actions against the former Yugoslavia are considered unilateral for this reason in spite of involving a number of states. See Martin Dixon and Robert McCorquodale, Cases & Materials on International Law, p. 521.
37 The Economist, ‗Responsibility to protect: an idea whose time has come—and gone?‘, July 23rd 2009.
40 General Assembly Resolution 60/1, 24th October 2005.
41 For analysis of this issue see Carlo Focarelli, ‗The Responsibility to Protect Doctrine and Humanitarian Intervention‘ (2008) 13(2) Journal of Conflict & Security Law 191. Some commentators have noted that the Outcomes Document doesn‘t explicitly preclude the existence of a unilateral right of humanitarian intervention.
42 The Economist, ‗Responsibility to protect: an idea whose time has come—and gone?‘, July 23rd 2009.
43 Ian Brownlie, Principles of Public International Law, p. 742-5.
44 Carlo Focarelli, ‗The Responsibility to Protect Doctrine and Humanitarian Intervention‘ (2008) 13(2) Journal of Conflict & Security Law 191, 195.
45 Ivan Ah Sam, ‗Slouching Toward Bethlehem‘ (2005) 4 Monash Debating Review 28.
46 Quoted in The Economist, ‗United Nations: Fighting for Survival‘, November 18th, 2004.
47 The Economist, ‗Responsibility to protect: an idea whose time has come—and gone?‘, July 23rd 2009.
49 Ian Brownlie, Principles of Public International Law, p. 743