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The Changing Definition of Sovereignty
By Edward Marks
Ambassador Marks, a retired career U. S. diplomat, considers questions of peacekeeping and humanitarian intervention in light of national sovereignty concepts. He notes that the situation in Afghanistan likely will raise new questions for the UN.—Ed.
The post-Cold War era is still in the process of evolving and is yet to be given its own name, but the changing relations between and among individual nation-states and international organizations, especially the United Nations, is a major theme of this era. This subject was particularly evident in 1999 with developments in Kosovo and East Timor, and shows no signs of diminishing in importance as we deal with Sierre Leone, the Congo, and now Afghanistan.
Peacekeeping and intervention is a subject with many aspects not only for foreign policy practitioners dealing with today's crisis m the in-box, but also for theoreticians and international lawyers concerned with the law of nations and the rapidly growing implications of globalization. What, for instance, are the responsibilities and authority of the international community as a community in a world where individual human rights are increasingly to be balanced against the "national interests" of individual nation-states? Have actual developments in the past decade—from Cambodia through Somalia and the Balkans to East Timor—fundamentally altered the legal and practical status of national governments? What are some of the practical problems of implementing peacekeeping and intervention operations?
It is important to note that that the two terms—peacekeeping and intervention—are related but not identical, and that usage often confuses the two. Peacekeeping can be accomplished in two ways, by conciliation or by enforcement. Conciliation, usually pursued in the context of an intrastate cease fire agreement and at least the promise of political negotiations, is the classic model of UN peacekeeping. At the end of the Cold War classic or traditional peacekeeping activities conducted under Chapter IV of the Charter were expanded, first into intrastate situations, and then into more complicated operations sometimes referred to as post-conflict peace building.
Intervention is intrinsically different from traditional peacekeeping, as it implies a lack of consent by at least one of the parties to the dispute and the use of force (or at least the threat) by the external agent, authorized under Chapter VII of the Charter in the case of the UN The tragic confusion between the two types of operations can be seen most clearly in Bosnia between 1990 and 1992. That sad experience led to the conclusion that the UN as an organization was not competent to fight a war, that is, to conduct a forceful intervention. It is now generally conceded that such interventions are best left to coalitions of the willing, which in Bosnia turned out to be NATO, preferably authorized by the Security Council.
However, a new wrinkle has developed to go along with intervention operations, and that is the use of the UN as a governing authority that follows the introduction of the intervention force. First attempted in Cambodia in the early 1990s, UN transitional administrations were introduced in several of the territories of the former Yugoslavia and most dramatically in Kosovo, East Timor, and is now being organized for Afghanistan.
Summing up in the words of the secretary general of the UN, state sovereignty is no longer the absolute be-all and end-all of the international system. This thought, explicitly introduced by the secretary general to the 1999 Session of UN General Assembly, has opened a debate on the character of the international political environment.
The secretary general's comment reflects the recent evolution in international law with respect to intervention and the rights and privileges of nation states. One major component of international law is customary law, based on what governments and officials actually do over a period of time and more or less accepted by consensus and practice. The other major component consists of treaties and other agreements, including the Charter of the United Nations. In both of these areas we have in the last decade changed the way in which we regard international law in general and the role of the UN Charter in particular.
Prior to the UN Charter, international law focused on state practice within which war was lawful as state-to- state practice. States were sovereign in law as well as practice. The UN Charter modified that situation, at least with respect to law, by proposing restrictions to the use of war and force, that is, in self-defense or when authorized by Chapter 7. In practice, unfortunately, the Charter prohibitions did not significantly inhibit actual practice by states in the use of force, with the dynamics of the Cold War effectively precluding the use of Chapter 7 by the world community. Except for the Congo operation in the 1960's, the UN until I990 engaged only in Chapter 6 operations—what has become known as traditional peacekeeping—in which multinational forces may use force only in self-defense.
Since 1945 five decades of practice have seen the development of new principals of multi-national peacekeeping and intervention.
Beginning with Security Council Resolution 794 in 1992, however, the use of military force to accomplish a humanitarian intervention was authorized under Chapter 7 of the Charter (Operation Restore Hope). Since then other forceful interventions have been authorized and implemented for a combination of humanitarian, peace, and security reasons, thus producing a significant change in actual practice and therefore in customary international law. A corollary of that authority imposes a legal obligation on all states to search for and arrest war criminals—another aspect of intervention. The final conclusion of these ten years of practice is the clear exposition of the right of intervention by the international community, especially when such intervention is so authorized by the Security Council.
How and when Security Council action will occur, however, is a profoundly political question. The interaction of oil, war in a strategic region, and aggression against a small state guaranteed international attention in the case of Iraq and Kuwait. Unity of action by the international community, however, required leadership—in this case, American. To this mixture was added the role of the Security Council of the UN as the authoring authority. Twelve resolutions were passed, marking the intervention and authorizing the use of force.
Also in this period, the hope that the United Nations would be tremendously more effective ran into the reality that international organizations can only be effective when member states agree with each other. When Russia, China, and the United States disagree, the UN is immobilized, as it was during the Cold War.
Despite the recent expansion into the era of conflict resolution or peace making, it is useful to remember that traditional peacekeeping has an impressive record. The basic rules for traditional peacekeeping were simple and based on the agreement of the parties. With the addition of so ca11ed second generation peacekeeping, there are now three main categories of peacekeeping:
UN-mandated and -implemented operations,
UN-authorized operations conducted by a regional organization or an ad hoc coalition, and
Non UN-authorized operations.
When we come to those involving intervention, we enter a new dimension where operations are pursued without the consent of at least one of the parties. The practice of humanitarian intervention, even if justified by mass murder or genocide, raises serious questions which are far reaching and require close and careful consideration. The contention that there are conditions which justify international intervention is now generally accepted in theory, but is matched by the fact that it is also highly controversial in specific situations. The rapidly evolving situation in Afghanistan will put both theory and practice to new tests.