AN END TO SOVEREIGNTY?
MAJ Jeffrey P. Whitman examines the moral justification for military intervention in foreign. He begins by presenting the arguments offered by many current statesmen for military intervention (whether unilateral intervention or intervention under the auspices of the United Nations), arguments relying on the primacy of human rights and human life over the legal notion of state sovereignty. Many of these "new interventionists" view state sovereignty as an outdated, legalistic restriction that no longer merits respect when a government violates the rights of its citizenry. Whitmann disagrees, and borrowing from some of the arguments of John Stuart Mill, sees a close connection between state sovereignty and a people's right to selfdetermination. Insofar as military intervention represents a massive violation of state sovereignty, it also does great damage to people's right to self-determination-a necessary component to any defensible concept of human rights. For that reason, military intervention rarely, if ever, serves the cause of human rights. Respect for sovereignty and selfdetermination does.
We are clearly witnessing what is probably an irresistible shift in public attitudes toward the belief that the defense of the oppressed in the name of morality should prevail over frontiers and legal documents.
--former U.N. Secretary General, Javier Perez de Cuellar1
With the end of the Cold War and the success of the United Nations coalition in the Gulf War, some national political leaders see a new era dawning in international relations. In this new era they see the United States (as the sole remaining super power), working with the United Nations, to establish and guarantee the basic human rights of all people everywhere.2 The arguments they offer are generally moral arguments. They see the root of armed conflict and war (and the evil that attends these conflicts) in the violation of basic human rights. Guarantee people's rights, and in time armed conflict will dissipate. However, as long as human rights violations are allowed to stand, war is inevitable. But, if we are to restore and guarantee human rights, it is often necessary to interfere in the domestic affairs of sovereign states. Therefore, violations of state sovereignty in the form of military intervention is morally justified so long as its purpose is broadly humanitarian in nature (i.e., it seeks to establish respect for human rights as defined by the 1948 U N Declaration). In the words of the Italian Foreign Minister, Giaunide Michelis,
Intervention that is primarily aimed at securing the protection of human rights and respect for the basic principle of peaceful coexistence is a prerogative of the international community which must have the power to suspend sovereignty whenever it is exercised in a criminal manner.3 (emphasis added)
This new emphasis on military intervention has supporters both within the United States and the United Nations, and they have an active agenda for both the U.S. and the U.N. As one scholar recently noted,
The new interventionists seek to end civil wars and stop governments from abusing the rights of their people . . . . They believe that active international intervention is necessary to bring a semblance of order to the post-Cold War world . . . . [They] advocate "a new humanitarian order in which governments are held--by force, if necessary--to higher standards of respect for human life."4
Nowhere is support for this interventionist view stronger than in many of the Eastern European countries. They argue that state sovereignty should not be used as an excuse or shield to ignore human rights abuses.5 Given their recent long subjugation by the Soviet Union, their attitude in this regard should come as no surprise. However, if we are seeing the end of sovereignty as the cardinal moral and legal concept governing relations among nations, what will take sovereignty's place?
The answer for interventionists is human rights--the interests of the people overriding the interests of the state. The arguments offered against this view have been largely pragmatic ones. Hard-headed political realists survey the changing public attitude noted by former Secretary General Perez de Cuellar (in my opening quotation) and worry at the cost and chances for success if this changing attitude finds expression in U.S. and U.N. policy decisions. Recent experience seems to bear out their concerns. The limited success of U.S. military intervention in Somalia, the inability of the Western Powers to enforce a settlement in Bosnia, and the U.N.'s failure to end the massacres and civil war in Rwanda are only the three most recent and visible failures of interventionist policies. In other areas of the world where media attention is slight (Sudan, Liberia, Yemen, East Timor, Nigeria) there has been virtually no attempt by the international community to intervene, or even threaten to intervene, on behalf of human rights. The reason for this state of affairs is a simple one. Military intervention, whether taken unilaterally or under the auspices of the U.N., dearly costs the intervening power(s) in terms of economic treasure and the lives of soldiers. And even if the cost is seen as acceptable (which it rarely is), there is no guarantee that the intervention will accomplish its purpose.6
However, pragmatic and politically realistic arguments aside, I want to offer a moral argument against the "new interventionists." Their argument for intervention is, after all, a moral one, so I propose meeting them on their own ground. I want to argue that adequate moral justification does not exist for setting human rights above the sovereignty of the state. The apparent conflict between human rights and sovereignty is just that--appearance rather than reality. The conflict disappears once we recognize the proper relationship between human rights, sovereignty, and self-determination. On my view, the cause of human rights is actually supported and not hindered by respect for sovereignty and self-determination.
Turning first to the concept of sovereignty, the very word harks back to the feudal era when states were governed by a single individual--the sovereign. The vestiges of this original meaning of the word remain in our modern usage with the tendency to treat sovereign states as individuals. However, with the emergence of the political theories of Locke and Rousseau, the power of the state has gradually been seen to rest with the people or commonwealth, and not with an individual sovereign. The people's acknowledgment of a central governing authority within a specified geographical territory confers on the state its sovereignty. However, and this is a key point, the population's recognition of a central authority does not imply approval of that government. An unpopular and oppressive totalitarian regime is no less sovereign than a popularly elected, democratic republic. Sovereignty flows from the "population's recognition of the legitimacy of some central governing power" and not the "acceptance of the moral or legal validity of the acts carried out by the central authority."7
Sovereign states are, by international law, equal, and sovereign equality is the basis upon which the United Nations operates.8 This principle of sovereign equality is what guarantees equal participation by all states in international relations. This sovereign equality has as its content the following elements: 1. States are legally equal. 2. Every state enjoys the rights inherent in full sovereignty. 3. Every state is obligated to respect the fact of the legal entity of other states. 4. The territorial integrity and political independence of a state are inviolable. 5. Each state has the right to freely choose and develop its own political, social, economic, and cultural systems. 6. Each state is obligated to carry out its international obligations fully and conscientiously and to live in peace with other states.9
One point to notice here is that sovereignty is not entirely absolute. As item 6 notes, states can have international obligations. They accrue these obligations when they enter into international treaties and agreements. Of course, states are free not to enter into these agreements to begin with, but once they have, they have given up a certain measure of sovereignty to the international community. I will touch on this point again later.
Given the legal basis for sovereignty, when, if ever, is a state justified in violating another state's sovereignty? John Stuart Mill, in a short essay entitled "A Few Words on Non-Intervention"10 provides one possible answer. Mill's response has as its moral foundation a strong emphasis on the importance of self-determination. According to Mill, foreign military intervention, in the long run, rarely works to the advantage of the people whose right to self-determination is thus violated. While this point is obvious in those situations where a foreign power is engaged in a war of conquest or when the purpose of the intervention is to assist the government of another country in subjugating its citizenry,11 Mill is critical of other types of intervention as well. In particular, when the situation is one where the oppressors are not foreigners and do not have foreign military assistance, "[w]hen the contest is only with native rulers, and with such native strength as those rulers can enlist in their defence,"12 outside military intervention is, as a general rule, not justified. In such a case,
if [the people] have not sufficient love of liberty to be able to wrest it from merely domestic oppressors, the liberty which is bestowed on them by other hands than their own will have nothing real, nothing permanent.13
On Mill's view, the problem with interventions in the name of liberty and human rights, is that the people have no vested interest in maintaining these newly acquired rights. They were not in the first place "willing to brave labor and danger for their liberation,"14 but rather chose to rely on the good offices of an outside power to secure these rights for them. However, by failing to engage in an "arduous struggle to become free by their own efforts," they are denied the opportunity to "become attached to that which they have long fought for, and made sacrifices for."15 The intervening power has usurped their right to self-determination, and the freedoms they have so easily gained will too easily disappear once the intervening power departs. And it is this violation of self-determination that Mill finds morally objectionable.
Clearly Mill's perspective on the issue of intervention is not popular with the new interventionist attitude I alluded to at the beginning of this paper. Rather, they see Mill's position as outdated, perhaps suited to an earlier era, but no longer viable. Their own view is more like that of the current Secretary General of the U.N., Boutros Boutros-Gali, who, in a 1992 report to the Security Council on "strengthening the capacity of [the U.N.] in matters of international peace and security" stated:
Respect for [a state's] fundamental sovereignty and integrity [is] crucial to any common international progress. . . . Nevertheless the time of absolute and exclusive sovereignty . . . has passed. . . . Its theory was never matched by reality.16
And, of course, the Secretary General is partly correct. By entering into international agreements, states give up a certain measure of sovereignty. Additionally, and this I think is the Secretary General's main point, respect for sovereignty has often not matched the standards set by Mill. However, the question is, what should be the correct standard of respect for sovereignty? When is military intervention in support of human rights over self-determination morally justified?
We may be able to gradually zero in on an appropriate response to the question of how to balance human rights against self-determination by looking at the possible justifications a state or states might offer for military intervention in another state. Such justifications lie in a spectrum ranging from what might be labelled a realist perspective ("might makes right") to a globalist perspective (under the authority of some, not yet realized, world-wide governing power).17 Moving consecutively up from the realist perspective, these justifications may be grouped as follows. Military intervention is justified whenever:
1. A state (or group of states) has the necessary military power to intervene (no further justification required).
2. The national self-preservation of the intervening power requires it.
3. The intervention is requested by the host government.
4. The international community consents to the intervention (even though the host country withholds consent).
5. There is a collapse of the governing authority and the rule of law in the host country.
6. Universal values or principles (e.g., human rights) are being violated by the host country.
7. A global governing authority sanctions the intervention.
From a moral point of view, the first justification clearly does not pass muster. The dictum that "might makes right" constitutes a repudiation of the rule of law and morality. This type of intervention does not serve to protect either human rights or the principle of self-determination. While history is replete with examples of nations essentially having no further justification for military intervention than their ability to impose their will on another state, the verdict of history is fairly unanimous in condemning such interventions.
The second justification (that military intervention is permissible when required for national self-preservation), while having some theoretical merit, is difficult to imagine in practice. Nations most often use this type of justification when excusing themselves from invading a neutral country while at war with another foreign power. The German invasion of neutral Belgium at the start of World War I, Winston Churchill's decision (at the start of World War II) to blockade Norway by mining Norwegian territorial waters, the U.S. invasion of Laos and Cambodia during the Vietnam War, the Athenian decision to invade Melos are but a few examples of this kind of justification at work. However, in each of the examples just mentioned (and in all other historical examples I can think of), national self-preservation, which might be a weighty enough consideration to bear the freight of moral justification for intervention, was not the real issue. The real concern was strategic military advantage, plain and simple. But, as Hugo Grotius, the father of international law, succinctly points out, "Advantage does not confer the same right as necessity."18 And in fact, I cannot imagine a situation where the national self-preservation of a nation is at stake and can only be preserved by sending uninvited military forces into another country, unless that country is already engaged in military operations against the threatened nation.19 At any rate, in these scenarios neither the principle of self-determination nor the issue of human rights is the primary concern of the intervening power.
Continuing to move up the spectrum of justifications for military intervention, the next three are the ones most commonly employed in today's world. The first, that the outside power is invited in by the host government, may be morally defensible. For example, if two or more countries have been at war but have reached some sort of negotiated settlement, peacekeeping forces may be invited in by each party to the dispute to help insure mutual compliance with the terms of the settlement.20 Peacekeeping forces may also be used to help guarantee a negotiated settlement in a civil war.21 In each of these cases there is no violation of sovereignty and self-determination, and there is the real possibility that human rights may be furthered if the intervening forces have been invited in by all parties.
However, when the invitation is one-sided, particularly in a civil war, we have the kind of situation derided by Mill. Should the outside power accept the invitation to intervene, we would have a clear violation of the principle of self-determination and, in all likelihood, human rights as well. In Mill's words,
A government which needs foreign support to enforce obedience from its own citizens is one which ought not to exist; and the assistance given to it by foreigners is hardly ever anything but the sympathy of one despotism with another.22
Of course, the intervention may have greater moral legitimacy if, despite the absence of consent by all the disputing parties, the international community consents to the intervention (the fourth justification in the spectrum we are exploring). Recent examples of this kind of intervention are the U.N. operations in Somalia and, however belatedly, in Rwanda. In both these cases, however, the success of the interventions remains an open question. Despite their largely humanitarian nature, military interventions of this type can have only limited success when they lack the backing of local government officials. While we cannot be certain of the final results in Somalia or Rwanda, both these countries seem to illustrate the very point I am arguing for here (viz., the very limited success of interventions when such an intervention is not sought by the host nation). The United States' history of intervention in Latin America (to include the recent occupation of Haiti) is also instructive in this regard. All too often the result of the intervention is either to prolong the state of war which exists between the various groups or to make one party so dependent on foreign power that its moral legitimacy as a governing power becomes suspect in the extreme.
The problem, as Mill so clearly points out, is that violating a peoples' right to self-determination, even when that violation is meant to be a case of benevolent paternalism, actually leads, in the long run, to greater suffering and hardship. Furthermore, if the establishment of respect for human rights is the goal, using outside military power to enforce that goal is self-defeating. We cannot force governments and people to respect human rights by threatening their sovereign rights. Rather, they must be encouraged to earn and respect those rights on their own. Military intervention, no matter how benevolent the intentions, works to deny the people of the host nation the opportunity establish a real and lasting respect for human rights.
Continuing to move up the scale of justification for military intervention, we come to the fifth possibility--there is a collapse of the governing authority and the rule of law in the host country. Once again, we have a justification that, on the face of it, appears to have some merit. However, such collapses of governing authority are much more rare than interventionists would have us believe. In Somalia, for example, the case for U.N. intervention included this justification. Lawlessness and the lack of a central governing authority were the reasons relief supplies were not getting to the people that needed them. And yet, once U.N. forces were on the ground in Somalia, they discovered that there was a government of sorts in place (actually competing governing authorities), and they were using the seizure of relief supplies as a weapon in their conflict. It was not so much the collapse of governing authority that was the problem, rather it was the manner in which that authority was being used and abused. The need for intervention arose because the host country, in this case Somalia, was violating universal values or principles (i.e., human rights) in an egregious manner.
Michael Walzer, in his much discussed book Just and Unjust Wars, seems to have just this kind of justification in mind when he presents his views on humanitarian intervention. Such interventions are justified, claims Walzer, "when the violation of human rights within a set of boundaries is so terrible that it makes talk of . . . self-determination . . . seem cynical and irrelevant.24 And this possibility, of course, brings us to the sixth justification on the scale we are examining.
This sixth justification is exactly the direction the new interventionists intend to follow. As one of them has recently argued:
So long as individual nations claim as their sovereign right authority over the lives of their citizens which violates internationally recognized, but unenforced, standards of human rights, . . . the seeds of discord and war will remain with us.25
On this view, national sovereignty should no longer serve as a deterrence to military intervention when human rights are at stake. Furthermore, nations are seen to have a kind of moral duty (in the name of preserving the human race?) to surrender much of their sovereignty to some, as yet unformed, global governing authority that will enforce international law in such areas as environmental protection, population control, multi-lateral disarmament,26 as well as those laws guaranteeing human rights for all people everywhere. And of course, when we reach this level of justification, we have reached the seventh and final possible justification for intervention--a global governing authority sanctions the intervention.
As I noted earlier, one response to the line of argument the new interventionist are proposing has been a pragmatic one. It is just not possible for outside powers, such as the United States (even with the support of the U.N.), to intervene in every area of the world where human rights are being violated. But even if it were possible, do nations like the United States have a moral duty to intervene to protect human rights? No, argue the pragmatists. Governments have no real choice but to further their national interest. If the national interest coincides with moral considerations, that is a good thing. And if several policy options are open to a state, all of which further national interest, then the government should try to choose the morally superior option. However, no nation's self-interest is directly tied to the world-wide promotion of human rights (not even U.S. national interest), except in some very attenuated manner. Therefore, it is a mistake to assert that outside governments have a moral duty to intervene in the domestic affairs of another state, even if the purpose of the intervention would be morally laudable (i.e., the protection of human rights)27
However, I want to go beyond these pragmatic considerations and offer a moral argument against military intervention. Pragmatic considerations play an important role in the first argument I want to offer. Clearly, as writers like Stedman, Oppenheim, and others have pointed out, flagrant and outrageous human rights violations continue to plague the world community. Civil wars and domestic civil unrest are the source of many of these violations. As much as the United Nations might desire to end these violations, the cost of military intervention in all these crisis spots around the globe is prohibitively high. As a result, the U.N. and its member nations have not been able intervene everywhere; only a few, select conflicts have been singled out for military intervention. And in most cases, the countries selected for military intervention have been ones in which the Western Powers (those nations which hold permanent seats on the U.N. Security Council) have some sort of national, strategic interest.
This pattern of intervention can have a negative rather than a positive effect on the goal of furthering human rights. The message it sends, to both the oppressed and the oppressors, is that human rights violations will be tolerated so long as they do not effect the national interests of the major global powers. While the intention of such interventions is to protect human rights, in those countries where intervention is not forthcoming, oppressive governments will be emboldened and the oppressed will become increasingly cynical about the value of human rights. So, not only does military intervention often fail to attain the goal of protecting human rights (Stedman's point), but military intervention may actually make the human rights situation worse in those countries not under consideration for intervention. The recalcitrance of the Bosnia Serbs and the very limited success of the U.N. peacekeeping mission in Bosnia illustrate, I think, the danger of this kind of half-hearted approach to protecting human rights. Given the very real, practical limits on the world community's power to intervene decisively whenever human rights are violated, perhaps the only morally defensible option is to forgo humanitarian interventions altogether. Not only are such interventions not morally obligatory, but neither are they morally permissible.
However, there are other, perhaps even more compelling arguments against military intervention. One is the largely utilitarian argument of John Stuart Mill. Respect for national sovereignty and self-determination produces the greatest good for the greatest number. However imperfect, the best hope for securing human rights depends, in the end, on the principles of sovereignty and self-determination. The world community cannot impose, by force of arms, respect for human rights. That respect can only come from within a country, from the people.
Furthermore, human rights without this kind of self-determination is really an empty concept. To put the argument in Kantian terms, military intervention aimed at restoring human rights involves the intervening power in a kind of self-contradictory policy. Human rights can only be acquired and sustained by a self-determining polity. Insofar as a military intervention compromises the people's right to self-determination, such interventions are actually contrary to the cause of human rights.
Of course many will argue that a government engaged in large-scale human rights violations against its own citizens makes it impossible (or at least extremely difficult) for the people to exercise their right to self-determination and throw off their oppressors. In these kind of situations, outside military intervention merely serves to establish the minimally necessary environment which makes self-determination possible.28 Just as one cannot establish respect for human rights without an exercise in self-determination, likewise one cannot exercise self-determination without some respect for human rights.
While there is something to be said for this view, the policy of putting human rights and other moral values ahead of self-determination, and then imposing these human rights and moral values through some kind of military intervention, has a long history of failure. More often than not, adopting such a policy endangers and weakens, rather than protects and fosters, the very moral values we hold dear. In the words of Arthur Schlesinger:
Laying down the moral law to sinning brethren from our seat of judgment no doubt pleases our own sense of rectitude. But it fosters dangerous misconceptions about the nature of foreign policy. . . . Little has been more pernicious in international politics than excessive righteousness.29
Now I am aware that my very Millian perspective on the moral permissibility of military intervention may seem overly harsh and imbued with more than a touch of realpolitik. Rigorous adherence to this policy of non-intervention may condemn, at least in the foreseeable future, many peoples of the world to a life governed by brutal dictatorships. For these people, talk of human rights and self-determination will seem cruel and hopelessly irrelevant. No doubt many of these oppressed people would welcome, at least initially, a military intervention aimed at removing their oppressors. However, even if such interventions could be carried out in a manner that entailed minimal usurpation of the peoples' right to self-determination, sustaining the human rights gains brought about by military intervention seems a very dubious proposition. Unless the intervening power is prepared to engage in a wholesale purge of the oppressors and their supporters, something few benevolent powers are willing to do (and I am presuming here that we are dealing with a benevolent power primarily motivated by humanitarian/human rights concerns), the seeds of oppression will remain. The oppressor's political capital may even increase as she casts herself in the role of defender of the nation against the imperialistic intervention of an outside power. Real and lasting change can only come from within the country. It may indeed require an "arduous struggle" on the part of the people, but this is the price of genuine and lasting human rights progress.
Therefore, if the world community is truly concerned and committed to the establishment of human rights around the globe, let it first be committed to the principles of sovereignty and self-determination. Military intervention in the domestic affairs of sovereign nations, no matter how well-intended the intervening power might be, rarely, if ever, serves the cause of human rights. Respect for sovereignty and self-determination does.
1. Quoted in Stephen John Stedman, "The New Interventionists," Foreign Affairs, 72:1 (1993), p. 3.
2. These rights are codified in the U.N.'s Universal Declaration of Human Rights (1948).
3. From a speech to the General Assembly of the U.N. in Sept. 1991 quoted by Keith Hindell, "Reform of the United Nations?," The World Today, 48 (February 1992),p. 30.
4. Stedman, 3. Quoted material comes from Francis M. Deng and Larry Minear, The Challenge of Famine Relief: Emergency Operations in the Sudan (Washington, D.C.: Brookings Institute, 1992), p. 8.
5. Hindell, p. 31.
6. Stedman, op. cit. presents a convincing recent argument against military intervention along the lines I have only briefly outlined.
7. Harold G. Maier, "The Principles of Sovereignty, Sovereign Equality, and National Self-Determination," International Law and International Security: Military and Political Dimensions, Paul Stephan III and Boris Klimenko, eds. (New York: M.E. Sharpe, 1991), p 243.
8. As Article 2(1) of the U.N. Charter states: "The Organization is based on the principle of the sovereign equality of all its Members."
9. These elements are taken from the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, adopted by the U.N. on October 24, 1970.
10. John Stuart Mill, Dissertations and Discussions, (New York: Holt & Co., 1873), pp. 238-263.
11. The Iraqi invasion of Kuwait provides an example of this first type of intervention; the Soviet Union's 1968 intervention in the former Czechoslovakia would be an example of the second type of intervention.
12. Mill, p. 258.
13. Ibid., p. 259. A somewhat similar view, albeit more radical, has been championed by Frantz Fanon (The Wretched of the Earth, N.Y.: Grove Press, 1967). On his view, violent struggle is a necessary part of an oppressed people's struggle to become free. Genuine freedom can never be bestowed on a people. Only through violence do people attain genuine political freedom.
14. Ibid., p. 258.
15. Ibid., p. 260.
16. Quoted in Gene Lyons and Michael Mastanduno, "International Intervention, State Sovereignty, and the Future of International Society," International Social Science Journal, 45 (November 1993), p. 518.
17. In describing this spectrum of justification for military intervention I am borrowing from Lyons and Mastanduno, op. cit., pp. 517-532.
18 The Law of War and Peace, chapter 22, VI., p. 549.
19. In this latter situation, when the country against whom intervention is being contemplated is already engaged in military operations against the invading nation, the issue is no longer intervention but self-defense against aggression.
20. An example of this type of intervention is the peacekeeping forces provided by the United States in the Sinai as part of the Egyptian-Israeli Camp David Accords.
21. The U.N. peacekeeping mission in Kampuchea and some of the proposed roles for a peacekeeping force in Bosnia, might serve as examples of this type of intervention.
22. Mill, p. 257.
23. Just and Unjust Wars (USA: BasicBooks, 1977), p. 90.
24. Morton Winston, "Human Survival and the Limits of National Sovereignty," In the Interest of Peace, Kunkel and Klein, eds. (Longwood: Wakefield, N.H., 1990), p. 312.
25. Presumably each nation would be permitted to maintain a police force only large enough to defend its borders and maintain internal security.
26. For a particularly cogent and more detailed presentation of this view see Felix E. Oppenheim, The Place of Morality in Foreign Policy, (Lexington, MA: Lexington Books, 1991).
27. By "tolerated" I mean the rights violations will not elicit a military response, although the country engaged in these violations of its citizens may be condemned by the international community and punished in terms of political and economic isolation.
28. Again, this is the kind of argument Walzer makes in Just and Unjust Wars, op. cit.
29. Quoted in Oppenheim, p. 98.