The Responsibility To Protect
Self-DeterminationBy Cameron Hunt
30 November, 2007
Countercurrents.orgThursday, 29 November 2007, marked the sixty year anniversary of the most regrettable decision in United Nations' history; a decision that is no longer open to discussion. On 29 November 1947, the UN General Assembly adopted resolution 181 – the ‘Partition resolution’ – thereby authorizing the partition of historic Palestine into “Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem”. Notably, there is still no Palestinian state or “Special International Regime for the City of Jerusalem”; and no longer any apparent hope or desire for the latter. Notably, with no state, or the requisite institutions, the Palestinians are still unable to exercise their right to self-determination; something I will be returning to throughout this article.
Let’s now jump to December 2001, and the Report by the ‘International Commission on Intervention and State Sovereignty’ (ICISS): The Responsibility to Protect. This Report introduces us to a new concept, ‘the responsibility to protect’, which “implies above all else a responsibility to react to situations of compelling need for human protection”. The policy challenge for ICISS was: “External military intervention for human protection purposes has been controversial both when it has happened – as in Somalia, Bosnia and Kosovo – and when it has failed to happen, as in Rwanda. For some the new activism has been a long overdue internationalization of the human conscience; for others it has been an alarming breach of an international state order dependent on the sovereignty of states and the inviolability of their territory.” As a result of these tensions, which have come to be referred to as the ‘sovereignty-intervention debate’, the Government of Canada established ICISS in September 2000, in order “to wrestle with the whole range of questions … rolled up in this debate, … and to bring back a report that would help … find some new common ground”.
According to the Commission’s Report: “NATO’s intervention in Kosovo in 1999 brought the controversy to its most intense head… [It] raised major questions about the legitimacy of military intervention in a sovereign state. Was the cause just: were the human rights abuses committed or threatened by the Belgrade authorities sufficiently serious to warrant outside involvement?… was it the case that had the North Atlantic Treaty Organization … not intervened, Kosovo would have been … the occasion for genocidal slaughter like that which occurred in Bosnia four years earlier?”
One of the Commission’s key focuses in framing their Report was the concept of ‘human security’, which itself forms the basis of the emerging concept that the Commission came to name ‘the responsibility to protect’. “Human security means the security of people – their physical safety, their economic and social well-being, respect for their dignity and worth as human beings, and the protection of their human rights and fundamental freedoms.” The Commission claims: “The meaning and scope of security have become much broader since the UN Charter was signed in 1945… [The] concept of human security … has … become an increasingly important element in international law… Although the issue is far from uncontroversial, the concept of security is now increasingly recognized to extend to people as well as to states.”
You may have been able to glean from the last sentence that the Commission’s overriding concern in framing their Report, was in fact the sovereignty aspect of the ‘sovereignty-intervention debate’ – ‘state sovereignty’ – which is where we shall begin our analysis. The Commission tells us: “Sovereignty has come to signify … the legal identity of a state in international law. It is a concept which provides order, stability and predictability in international relations since sovereign states are regarded as equal… The responsibility for protecting the lives and promoting the welfare of [a state’s] citizens lies first and foremost with the sovereign state, secondly with domestic authorities acting in partnership with external actors, and only thirdly with international organizations… The defence of state sovereignty [however] … does not include any claim of the unlimited power of a state to do what it wants to its own people... It is acknowledged that sovereignty implies a dual responsibility: externally – to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state.” The Commission goes on to tell us: “The bedrock non-intervention principle is spelt out in Article 2.4 of the [UN] Charter, which provides that ‘All Members shall refrain … 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,’ and in Article 2.7 which prohibits the United Nations from intervening ‘in matters which are essentially within the domestic jurisdiction of any state’.” In addition to the two UN Principles just mentioned, we must add Article 2 paragraph 1, which reads: “The Organization is based on the principle of the sovereign equality of all its Members”.
Interestingly, we have already reached the current limits of our analysis of ‘state sovereignty’ – a concept that is not explicitly mentioned in the UN Charter – because ‘state sovereignty’ can only be understood through the prism of ‘self-determination’ – something that is explicitly provided for in the Charter, and to where we will now turn our attention.
On the principle of ‘the right to self-determination’, the Report states: “Protective enforcement usually indicates sustaining or restoring forms of territorial self-government and autonomy... That said, the responsibility to protect is fundamentally a principle designed to respond to threats to human life, and not a tool for achieving political goals such as greater political autonomy, self-determination, or independence for particular groups within the country (though these underlying issues may well be related to the humanitarian concerns that prompted the military intervention).”
Sadly, as a careful reading of the previous sentence suggests, the urgent need for improvements in human security would actually have been best facilitated by a conscientious reading of the established UN Charter, rather than empty discussions about an “an emerging guiding principle”. This failed to happen, above all, owing to the Commission’s facile conflation of the terms ‘state’, and ‘nation’; a confusion that is dispelled by the most cursory of glances at an English dictionary; something I will get back to very shortly. First, we need to continue our analysis of the (firmly established) international law principle of ‘the right to self-determination’.
The opening lines of the 1945 UN Charter declare that “WE THE PEOPLES OF THE UNITED NATIONS”, are “DETERMINED … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. There are two key words in these lines that the Commission was apparently either unable, or unwilling to apprehend. The Compact Oxford English Dictionary – which I shall use throughout this article – defines ‘nation’ as “a large body of people united by common descent, culture, or language, inhabiting a particular state or territory.” Thus, given that this “large body of people” can be “inhabiting a particular state or territory”, they need not have their own state in order to be regarded as a nation. What then is a ‘state’? A “nation or territory considered as an organized political community under one government.” It is only in a ‘nation-state’ – a fundamentally hypothetical entity – that “most of the citizens or subjects are united also by factors which define a nation, such as language or common descent.” This leaves us with the second key term, ‘peoples’: “the members of a particular nation, community, or ethnic group.” Not the members of a particular state.
Moving down through the Charter, Article 1, which outlines the four Purposes of the UN, has as its first two paragraphs: “1. To maintain international peace and security”, and, “2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.
Did the Commission have anything else to say on self-determination? “Useful guidelines for the behaviour of intervening authorities during a military intervention in failed states … might be found in a constructive adaptation of Chapter XII of the UN Charter… The most relevant provision in this regard is Article 76 which notes that the aim of the system is to promote the political, economic, social and educational advancement of the people of the territory in question”. You didn’t notice any reference to self-determination? That is because the Commission discarded it (something they also did with Article 55 in paragraph 3.18 of their Report). A less skewed reading of Article 76, paragraph b, would have included: “to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to … the freely expressed wishes of the peoples concerned”.
Furthermore, not only is Article 76 not the “most relevant provision in this regard”, it is in no way relevant. The “system” that the Commission speaks of is the ‘International Trusteeship System’, established by Chapters XII and XIII of the Charter, “for the administration and supervision of such [trust] territories as may be placed there under by subsequent individual agreements”. There hasn’t been a ‘trust territory’ under the UN Trusteeship System since the independence of Palau on 1 October 1994, and there are currently no plans for one to “be placed there under by subsequent individual agreements”. The “most relevant provision in this regard” – that of “the behaviour of intervening authorities” – is Article 73; something the Commission appears to have gone out of its way to avoid. Article 73 falls under Chapter XI of the Charter, the “DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES”. Article 73 reads as follows: “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government … accept as a sacred trust the obligation to promote to the utmost … the well-being of the inhabitants of these territories, and, to this end: … b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions”. The first point to be made on this Article is that, unlike the irrelevant Article 76, it speaks only of “self-government”; not of “independence”. The second point that shouldn’t need to be made, but strangely does, is that any “Members of the United Nations” which have been declared an ‘Occupying Power’ under the terms of the Geneva Conventions – such as Israel – can very certainly be said to “have … responsibilities for the administration of [those Non-Self-Governing] territories” which they occupy, and that they are therefore required to comply with the terms of Article 73 of the Charter.
At this point, we have covered the key Articles of the UN Charter pertaining to self-determination. Given that there may still be some sceptics out there, the three most relevant UN Declarations on the topic also need to be mentioned, as they all help to confirm the existence of ‘the right to self-determination’ as an established principle of international law. Firstly, the Universal Declaration of Human Rights, of 10 December 1948, “proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, … both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction”. Article 21 of the Declaration states: “The will of the people shall be the basis of the authority of government”. This Article confirms the right to self-determination not only as a principle of international law, but also as a fundamental human right.
Secondly, in the Declaration on the Granting of Independence to Colonial Countries and Peoples, of 14 December 1960, the UN General Assembly (UNGA) declares: “Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-Governing Territories, … Convinced that all peoples have an inalienable right to … the exercise of their sovereignty and the integrity of their national territory, … 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace”. The UNGA goes on to declare that “2. All peoples have the right to self-determination”, and that “5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire”. In the Declaration’s final paragraph the UNGA declares: “7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.” Whilst many may argue that there is an apparent contradiction in this final paragraph, there is actually no contradiction whatsoever if we give the Charter an honest reading.
Finally, in its Declaration on Principles of International Law, of 24 October 1970, the UNGA: “Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security, Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, … 1. Solemnly proclaims the following principles: … Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter… Every State has the duty to refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.”
This Declaration goes on to say: “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”. However, as I have already mentioned, the Charter itself speaks only of a right to “self-government” in the case of Non-Self-Governing territories; not of a ‘right’ to “independence”. Another point that needs to be made is that the ‘no-state solution’ to the Israel-Palestine conflict – something I outlined in my article Two-State Chimera, No-State Solution – could one day become that “other political status freely determined by a people”, at which point in time it would very certainly be said to represent another of the “modes of implementing the right of self-determination”.
Relevant to this article is that the no-state plan represents the only peace plan currently in the public sphere that would guarantee Palestinian refugees ‘the right of return’ entitled to them under international law. How is this relevant? According to a 1978 Report by the UN Secretariat’s Division for Palestinian Rights, The Right of Return of the Palestinian People: “In the case of the Palestinian people, the individual or personal right of return assumes a special significance for without its restoration, the exercise of the collective or national right of self-determination, itself guaranteed by a variety of international instruments, becomes impossible.” Did Ehud Olmert, the Israeli Prime Minister, have anything to say on the Palestinian ‘right of return’ at the opening of the Annapolis peace conference? “Israel would assist Palestinian refugees find a future in the new Palestinian state” – ‘Israel will continue to deny the Palestinian nation its right of return; its right to self-determination’.
Only now that a solid case has been made for the existence of ‘the right to self-determination’ as an established principle of international law, can we return to the ICISS concept of ‘state sovereignty’. Clearly, there is no such concept under the UN Charter – only ‘the sovereignty of nations/peoples’, or ‘national sovereignty’. The term ‘sovereignty’ means “supreme power or authority”, so, the question becomes, who has “supreme power or authority” under the UN Charter, the state, or the nation? Were ‘state sovereignty’ to be a legitimate principle, it would mean, for one thing, that states would have the legal right to oppress those ethnic minorities representing “a large body of people” within their borders, and to deny those peoples their right to self-determination, with complete protection under international law. This is certainly not the case. Whilst it is true that under today’s international law – the “emerging guiding principle” of ‘the responsibility to protect’ (R2P) aside – the government of a pure ‘nation-state’ (were one to be identified) has the ability to oppress its own nationals, and to deny them their individual self-determination, with complete immunity from action by the UN – owing to this being a matter “essentially within the domestic jurisdiction” of that state – the same could not be said if the actions of that government were to impact upon the right to self-determination of other peoples, other nations; something that would no longer be “essentially within the domestic jurisdiction” of that government. The only possible, consistent reading of the UN Charter brings us to the principal of ‘national sovereignty’, not ‘state sovereignty’ – with the caveat that neither is explicitly named in the UN Charter. Having said that, “WE THE PEOPLES” do, in the Charter’s Preamble, state our determination “to reaffirm faith in … the equal rights of … nations”. Yes, the Charter also declares that the UN “Organization is based on the principle of the sovereign equality of all its Members”; but this paragraph is just as important for what it does not say. It does not say: ‘The Organization is based on the principle of the sovereign equality of all states’. Actually, the word ‘state’ does not appear in the Charter until Article 2 paragraph 4, by which time ‘nations’ and ‘peoples’ have been mentioned six times.
We have now arrived firmly at the international law principle of ‘the right to national self-determination’ – or what might best be labelled ‘R2NSD’ under the modern nomenclature. On the basis of the principle of R2NSD, it can be asserted, with confidence, that the international community has a far greater responsibility to intervene in cases where weaker nations, within states, or under their administration, are seeing their R2NSD forcibly denied, than in cases of intra-nation fighting – the latter representing a manifestation of national self-determination; the former, its denial.
Making concessions, where possible, for the Commission’s noteworthy failure to distinguish between ‘nations’ and ‘states’ in its “wrestle with the whole range of questions … rolled up in this debate”, what else did the Commission have to say on the topics of ‘state sovereignty’ and ‘national self-determination’? (1) “A sovereign state is empowered in international law to exercise exclusive and total jurisdiction within its territorial borders”. A: No state has “exclusive and total jurisdiction within its territorial borders”. (2) “Any use of military force that aims from the outset … for the alteration of borders or the advancement of a particular combatant group’s claim to self-determination, cannot be justified”. A: Self-determination, as the aim of a military operation, can easily be justified. Its denial cannot. (3) “Another difficulty that can arise with internationally endorsed and externally applied preventive measures is that political leaders facing internal rebellion or secessionist violence will often be concerned about giving additional momentum or ‘legitimacy’ to those causing their problems… [T]he objective overall is not to change constitutional arrangements or undermine sovereignty, but to protect them.” A: If existing “constitutional arrangements” deny a nation their R2NSD – something that has historically lead to “internal rebellion or secessionist violence” – then for the international community to “protect” the existing constitutional arrangements, would in fact be for it to “undermine [national] sovereignty”; precisely what the UN Charter is concerned with. (4) “The overthrow of a democratic government is a grave matter, requiring concerted international action such as sanctions and suspension or withdrawal of credits, international membership and recognition”. A: But, the denial of democratic, national self-government is best ignored?
Now that the concepts of ‘state sovereignty’ and ‘self-determination’ have been adequately covered, we can move on to the ‘intervention’ aspect of the ‘sovereignty-intervention debate’. So, on the basis of the principle of R2NSD, what precisely am I suggesting? Am I suggesting that the UN should intervene in the intra-state affairs of each of its Member States, in all cases, and start redrawing state borders the world over, along ethnic lines? Absolutely not. For one thing, nowhere in the UN Charter is it mentioned that a nation has a ‘right to statehood’; only a right to national “self-determination”, through “self-government”. That being the case, when is intervention justified on R2NSD grounds, and when is it not? My starting point in answering this question is the Declaration on Principles of International Law, which has already been discussed in relation to R2NSD, and in which the UNGA declares: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples”. If “sovereign and independent States [are] conducting themselves in compliance with the principle of equal rights and self-determination of peoples”, then there are in fact no legal grounds for the UN to intervene in the remaining affairs of those states; “matters which are essentially within the domestic jurisdiction”.
What does ICISS have to say on ‘intervention’? (1) The “principle of non-intervention … is the norm from which any departure has to be justified. All members of the United Nations have an interest in maintaining an order of sovereign, self-reliant, responsible, yet interdependent states. In most situations, this interest is best served if all states … abstain from intervening or interfering in the domestic affairs of other states.” A: The “principle of non-intervention” in intra-state affairs may well be a norm, but the principle of ‘the right to national self-determination’ finds far stronger support under the UN Charter, and international law. (2) “The non-interference rule not only protects states and governments: it also protects peoples and cultures, enabling societies to maintain the religious, ethnic, and civilizational differences that they cherish.” A: Did the Commission speak to anybody from Rwanda, Bosnia, Kosovo, Darfur, etc.? (3) “The rule against intervention in internal affairs encourages states to solve their own internal problems and prevent these from spilling over into a threat to international peace and security.” A: Could the Commission then please explain: Rwanda, Bosnia, Kosovo, Darfur, etc.? (4) “Yet there are exceptional circumstances in which the very interest that all states have in maintaining a stable international order requires them to react when all order within a state has broken down or when civil conflict and repression are so violent that civilians are threatened with massacre, genocide or ethnic cleansing on a large scale.” A: A little bit of “repression” is okay? What of human rights? The international community only has a responsibility to act when “civilians are threatened with massacre, genocide or ethnic cleansing on a large scale”? That, according to B’Tselem, 1363 Palestinians had their Jerusalem residency rights revoked by Israel in 2006 is okay, because it doesn’t represent “ethnic cleansing on a large scale”? That Israel’s ‘Separation Barrier’ will de facto annex around 50% of the Palestinian West Bank is okay, as this cannot be said to represent “ethnic cleansing on a large scale”? Or can it? It is difficult to know, as the Commission made no reference to the Palestinians in their 75 page Report.
Although enough has now been said on the Commission’s indefensible position re intervention, there is a real need to address their assertion that “All members of the United Nations have an interest in maintaining an order of sovereign … states.” This paragraph, paragraph 4.11 of their Report, goes on to claim: “Most internal political or civil disagreements, even conflicts, within states do not require coercive intervention by external powers”. Interesting then that the Commission claims: “the overwhelming majority of today’s armed conflicts are internal, not inter-state. Moreover, the proportion of civilians killed in them increased from about one in ten at the start of the 20th century to around nine in ten by its close.” And elsewhere in the Report: “The most marked security phenomenon since the end of the Cold War has been the proliferation of armed conflict within states. In most cases these conflicts have centred on demands for greater political rights and other political objectives”. Such as R2NSD? Today, “Millions of human beings remain at the mercy of civil wars, insurgencies, state repression and state collapse”. How is it then, we must ask the Commission, that “Most internal political or civil … conflicts, within states do not require coercive intervention by external powers”? In terms of those conscience-shocking events mentioned in the R2P Report, how many of these were intra-state – but inter-nation – affairs? Rwanda, Bosnia, Kosovo? Can we add Darfur? Palestine? – there is no Palestinian state, only the Israeli State; the ‘Occupying Power’.
Did the Commission completely miss the strong link between the denial of a nation’s right to self-determination, and intra-state violence? No. “There is a growing and widespread recognition that armed conflicts cannot be understood without reference to such “root” causes as poverty, political repression, and uneven distribution of resources… Root cause prevention ... might involve democratic institution and capacity building; constitutional power sharing, power-alternating and redistribution arrangements.” That all sounds quite sensible. What else? “The long-term solution for ethnic minority conflict or secessionist pressures within a state will often be some kind of devolutionist compromise that guarantees the minority its linguistic, political and cultural autonomy, while preserving the integrity of the state in question.” That also rings true. Two steps forward— “True reconciliation is best generated by ground level reconstruction efforts, when former armed adversaries join hands in rebuilding their community”. So, why should the international community bother to intervene and protect a nation’s right to self-determination, when “True reconciliation” simply requires that “former armed adversaries join hands”?
Now that we have reached the end of our analysis of the ‘sovereignty-intervention debate’, the question becomes: What is the role of the UN in all of this? You might recall that Article 1, paragraph 1 of the Charter gives us the UN’s first Purpose: “To maintain international peace and security”. Although it beggars belief, it seems necessary to provide a definition of ‘international’ at this point: “existing or occurring between nations” – not states.
On the UN, the Commission’s Report notes: “The Security Council has the ‘primary’ but not the sole or exclusive responsibility under the Charter for [international] peace and security matters… Article 11 gives the General Assembly a fallback responsibility with regard specifically to the maintenance of international peace and security – albeit only to make recommendations... To these Charter bases for General Assembly action must be added the ‘Uniting for Peace’ resolution of 1950 … that was used as the basis for operations in Korea that year and subsequently in Egypt in 1956”. Actually, the ‘Uniting for Peace’ resolution – which I detail in my article The ‘veto’ charade – was adopted by the UNGA on 3 November 1950, and played absolutely no role in “operations in Korea that year”; operations that were authorized by the Security Council five months prior to its adoption. Furthermore, an objective reading of the Charter, as well as the events surrounding the invocation of the ‘Uniting for Peace’ resolution in 1956, reveals that whilst the Security Council indeed has “primary responsibility” for the maintenance of international peace and security, the General Assembly, in fact, has ‘final responsibility’ – not ‘secondary responsibility’ – something it has almost entirely failed to accept in the past.
Did the Commission have anything else to say on the UN? “The UN exists in a world of sovereign states, and its operations must be based in political realism.” On “sovereign states” and “political realism”, it appears that the Commission failed to give any thought to the example of Switzerland. Yes, Switzerland is a sovereign state, but it is a sovereign state made up of four distinct nations, each speaking a different language, and, through the Swiss cantonal framework, each “conducting themselves in compliance with the principle of equal rights and self-determination of peoples”. Noteworthy in this regard is that the Romansh Nation, despite constituting just 1% of the Swiss State, had their language accorded official status in a referendum in 1996. Political realism?
“Throughout its deliberations, the Commission … sought to reconcile two objectives: to strengthen, not weaken, the sovereignty of states, and to improve the capacity of the international community to react decisively when states are either unable or unwilling to protect their own people… [T]he very term ‘international community’ will become a travesty unless the community of states can act decisively when large groups of human beings are being massacred or subjected to ethnic cleansing.” This is interesting, because, according to the official ICISS website: “The mandate of the Commission was to promote a comprehensive global debate on the relationship between intervention and state sovereignty.” That being the case, one can only wonder on whose mandate it was that “the Commission … sought to … to strengthen, not weaken, the sovereignty of states”?
To return the article to where it began – 29 November 2007, marked sixty years since the decision by the UN General Assembly to partition historic Palestine into “Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem”; yet the Palestinian nation continues to be denied its right to national self-determination. If ICISS has its way, and if the so-called ‘international community’ continues to do nothing to uphold the UN Charter, it could well be ‘the right to national self-determination’ that is massacred.
Cameron Hunt is the author of Pax UNita - A novel solution to the Israel-Palestine conflict.
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