Introduction will critically analyse the theoretical foundations

 

Introduction

 

It is not the intention for this essay to make a judgment for
or against humanitarian intervention but to consider theoretical debate the examines
the grounds and presuppositions on which such arguments are based and on what
grounds intervention may be viewed as permissible or obligatory.  This essay will critically analyse the theoretical
foundations of the concepts of humanitarian, in terms of morality and human
rights and humanitarian and intervention, examine the debate for justification of
humanitarian intervention and the right to protect.

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The Charter of the United Nations was signed in 1945, an
agreement that established an international organisation, with rules and
regulations that mutually consenting States have agreed to abide by.

Within the Charter, under Article 2(4) members States agree
to refrain from threatening or using force against the territorial integrity or
political independence of any state; and Article 2(7) allows that
notwithstanding threats to or breaches of the peace and acts of aggression
(Chapter VII), nothing in the present Charter will authorise the United Nations
(UN) to intervene in such matters which fall within the jurisdiction of any
State.  (Charter of the United Nations,
1945) (hereinafter referred to UN Charter).

 

For such organisations as described above, Hedley Bull
argues that where States have come together and formed a system, it is the mutually agreed common rules for conduct and
maintenance of the agreement that forms the concept of international society.  Bull
defines such as “a society of States that exists when a group of States, with
certain common interests and values form a society they themselves believe to
be bound by a common set of rules defining the relations between them and
sharing in the working of common institutions”, an idea of international
order.  He maintains there are three
basic rules for the maintenance of such international order:  limits on the use of force, provision for the
respect of contractual agreements and the maintenances of a system for the
assignment of property rights (Bull, 2002, p.13)

 

This classical realist view advocates that politics and
decision making, power and influence are central to a governmental or State
societal framework.  Bellamy believes
that States act within a wider framework of States that have “commonly agreed
values, rules and institutions” including the principle of sovereignty which is
widely accepted as an underlying principle where international society commands
obedience in order for the legal order of society to be effective and
valid.  The principle grants States
supreme authority within their own borders and territories (Bellamy, 2003,
p.323), over the rights and duties of it’s citizens thus engendering the
fundamental idea of sovereignty.

 

However, Wight’s conception of international society was
that it is the idea of natural law that binds common values, common obligation
bound by natural law, a ‘language of tradition’, rather than Bull’s view of a
State-centric system (Wight in Bain, 2014, p.943). Wight held that natural law
expresses common values relating to the right to use force, and considers
conditions of co-operation and mutual assistance and also provides a basis for
the sense of obligation which serve as a foil to an over-arching power centred
State-system (Wight in Bain, 2014, p943). 
Wight defined three further distinctions of international society. The
first was realism in that States a viewed as self-centred “power agencies
devoid of morality of law”, the second concept being rationalism, defining
States as operating within the confines of international law and based on
mutually agreed concepts of State sovereignty. 
The third concept is based on the idea of revolutionism where humans
rather that the State become the focus.

 

The realist Hobbesian view is that by nature, all men are
equal; but man is naturally selfish creature and that, in Locke’s world,
without any form of government, humans would be at constant war with one
another, living in constant fear.  In
order to prevent such happening, men would have to transfer their rights within
the laws of nature to a higher power ie. the State (Hobbes, 1651 ch.14).  The relations between such States would be
conducted in terms of self-interest, without moral or legal restrictions.  Bull contended that any of the three
traditions might be dominant at any given time but none of them ceased to exert
some influence in international society (Wheeler, 1992,p.463).

 

Whereas Hobbes concerned himself with the idea of States engaging
in conflict to protect self-interest, Kant took the view that international
politics was not about engaging in war against other States in order to protect
self interests of the State but to do with the relationships between the States
and therefore relationships between all men as part of mankind.  Kant saw society being divided into two
camps, one being those advocating for mankind and society as a whole and those
against it, taking a view that there are moral imperatives that limit the
actions of States and that these imperatives, rather than advocate co-existence
and co-operation between States, move to overthrow the system of States in
favour of a cosmopolitan society (Bull, 2002, p.25).

 

In between Hobbes and Kant, lies an altogether different
theory where international politics are described in terms of a society of
States or international Society. 
(Grotius, in Bull, 2002, p.25).  Hugo
Grotius’ tradition contends that States are not engaged in constant war as
Hobbes contends but are constrained in their war-like efforts by common rules and
in opposition to the Kantian view, the Grotius’ tradition accepts that States
are members of international Society rather than individual human beings.  The Grotius tradition holds that
international activity is typified by economic and social intercourse between
States, not only bound by the rules and institutions of the society in which
they operate, but by imperatives of morality and law also.

 

Locke argued for the moral idea that men were perfectly free
and perfectly equal, “subject only to limits set by the laws of nature” (Locke,
1680, p.3) by which he meant that no person could subordinate another, harm his
life, health, liberty or possessions.  He
went on to say it was only within the law of nature whereby if anyone may
punish someone for something he had done wrong, then everyone may do so, thus
the only way one man may have legitimate power over another, remaining in the
state of nature until they “consent to make themselves members of some
political society”. (Locke, 1680, p.7).  In
terms of political theory, this translates more simplistically that Locke saw
society as being realist, a society where States looked upon each other as
competitors although they were mutually agreed on rules of co-existence with
the right to life and therefore survival and the right to property as being
sovereign as sacrosanct.

 

Considering the theory of the English School of thought, in
a pluralist (realist) international society the
common interest and values described by Bull are perceived to uphold the idea
of State sovereignty, avoiding interference in domestic affairs, maintaining
territorial and political integrity and maintaining the position of the State
as being legitimate within international law and upholding the principles of
non-intervention.  On the other hand, in
a solidarist (liberalist) international society,
common interests and values move beyond just the co-existence among States in
terms of mutual recognition as States and mutual co-operation between States
but the status of the individual is elevated the individual to a position of
power in international law, in terms of the protection of human rights and so
on.   

 

Each State operates under it’s own perceptions of morality
and justice but in a pluralist international society the State defends itself
against intervention claimed by external influences claiming to be ‘doing the
right thing’ whilst maintaining and upholding it’s own internal rules and
regulations.  The solidarist view holds
that the State is not the object in international relations but the individual
and therefore the individual is accorded a universal standard of justice.  The solidarist views the State as not
inviolable, particularly when the rights of individuals are being threatened,
especially when the threat comes from within the State itself.  This adds weight to the idea in the English
School that the solidarist view leans towards the formation of a global
society. 

 

Buzan describes the above views as appearing to be
fundamentally antagonistic.  He argues
that if a global society such as one advocated by the solidarist view is able to
share a wide range of common values then the need for separate, political
States is negated.  He further holds that
such antagonism assumes mutual exclusivity of identities and suggests that a
post-modern society where individuals are able to be both individual and part
of a wider society is plausible (Buzan, 1993, p.340).

The English School debate between pluralists and solidarists
has been influential in other debates surrounding the theory and practice of
humanitarian intervention.  They
highlight issues regarding intervention based on humanitarian motives which
solidarists argue form the basis for a “new norm of intervention in times of
supreme emergency”, whilst pluralists continue to argue the illegitimacy of
intervention as it breaches the very principles of State sovereignty and ideals
of non-intervention (Bellamy, 2003, p.321). 

 

A theoretical analysis in terms of international society needs
to be made of the relationship between the terms humanitarian and intervention.  Pluralist theory defines humanitarian
intervention as a violation of the sacrosanct rules of State sovereignty,
policies of non-intervention and restraint on the use of force whilst focusing
on international law to enforce international order within the different
concepts of international justice.  The
State bears the responsibility for upholding international law.  Opposingly, the Solidarists view focuses
mutually agreeable relations within States with respect to the enforcement of
the law whilst recognising that the individuals within the member States are
accorded rights and duties in international law.  This view accepts that States have not only a
moral responsibility to its citizens for their protection but also have a wider
responsibility to uphold those responsibilities, including human rights within
the international arena.  (Wheeler, 2000,
p.12)  Solidarists, in contrast to
Pluralists maintain that where there is an extreme violation of human rights
the States not only have a moral duty to intervene but also the legal right
(Wheeler and Bellamy, 2014, p.483).

 

Pierre Bourdieu’s theorises on the idea the States use
language ‘strategically’, using the analogy of football where mastery of the
game requires the players to play within the rules but do so sub-consciously,
some players have poor command of the ball whereas others achieve success at
the game by applying the rules (Bourdieu, 1990, p.63-64).  To take this concept of strategisation a
little further, Habermas wrote of strategic success being achieved by actors
making appropriate decisions based on a given situation, taking cognisance of
other foreseeable actions.  These such
actions would be deemed a strategic success when considered in the context of
having followed rules of rational choice and the assessment of the efficiency
of such actions (Habermas, 1984, p.285). 
This serves to explain the idea that States have the choice to intervene
but may do so based on either the interests of the State or in the interests of
the individuals within that State or another State.  State employ a variety of strategies in order
to further interests within international society or within their own
territories.

 

And so to humanitarian intervention which is defined by Holzgrefe,
with particular focus on the use of force by intervening States for the
protection of human rights of individuals other than their own citizens as:

“the threat or use of force across state borders by
a state (or group of states) aimed at preventing or ending widespread and grave
violations of the fundamental human rights of individuals other than its own
citizens, without the permission of the state within whose territory force is
applied.”                                                                                         (Holzgrefe,
2003)

 

 

The legal case for HI

 The legal or
counter-restrictionist view argues for the idea of human intervention based on
two claims including the commitment by States to protect fundamental human
rights as agreed in the UN Charter and the right of humanitarian intervention
in customary international law. 
Article1(3) of the UN Charter 
identifies the protection of human rights as a principle purpose of the
international system and therefore advocates intervention in terms of breaches
of human rights.  However, regarding the
use of force, Reisman argues that the United National Security Council should
have used armed force during the Cold War to prevent genocide and its failure
uphold it’s legal responsibilities advocates for a legal exception to be
asserted against Article 2(4) that would permit States to intervene militarily on
humanitarian grounds.  He argues that
where States do not recognise the prohibitions provided in Article 2(4), this
is tantamount to a unilateral disarmament of the international system (Reisman,
2005, p.284).  Similarly there are
arguments that claim humanitarian intervention is valid because Article 2(4)
prohibits the use of force only when the political independence and territorial
integrity of States is threatened (Damrosch, 1993, p.9).  However, there are other
counter-restrictionists that argue there is no legal basis for unilateral
humanitarian intervention the UN Charter but that it is accepted by customary
international law.  Teson argues from the
perspective of natural law that humanitarian intervention does not require
authorisation from the United Nationals Security to be legal.  However, if those intervening do so without
UN Security Council authorisation as still able to act legally if they meet the
following criteria: intervention for humanitarian purpose and adopting
humanitarian means, the use of effective force and only when necessary, to act
within the acceptance of those requiring humanitarian assistance and to be
internally legitimate (Teson, 1997, p281). 
These concepts show there is discord in the interpretation of the law
between international law and customary international law. 

 

The moral case for HI

 

Many people argue that regardless of what the law says,
there is a moral duty to intervene in order to protect other people from mass
killing and genocide.  This is supported by
arguments that sovereignty is derived from the responsibilities of States to
protect their citizens.  Teson makes the
argument that humanitarian intervention is morally justified on the basis that
it is the duty of States and Governments to protect and secure the rights of
humans as individuals and where those rights are violated by States, those
States should not be protected by international law.  He maintains that State sovereignty is there
for the protection of citizens and when the protection of such citizens is
breached, then States should not be able to hide behind the principles of
sovereignty (Teson, 2003, p.93).  He
further argues that, people as individuals are accorded rights by virtue of
their existence, those rights engender for all individuals the obligation to
respect those rights, to promote respect for others and the obligation to
rescue victims of tyranny or anarchy, depending on the circumstances with
particular reference to humanitarian intervention.  In a similar vein, Caney gives idea to the
collective responsibility of persons to observe their moral obligations in
terms of rights as common humanity (Caney, 1997, p.34). 

 

Against HI

 

The main principles of the UN Charter is to maintain
international peace and security and Article 2(4) prohibits the use of force
and breaches of such prohibitions are sanctioned under Articles 39 to 51 of the
UN Charter.  However, the only exceptions
to the prohibition of force are found in Articles 42 and 51 where in Article 42
the UN Security Council may take action to authorise necessary force to
maintain peace and security and Article 51 provides for a member State to use
force in self defence against an armed attack. 
Some restrictionists argue that UN Charter Article2(7) authorises the UN
Security Council to intervene in matters which are in the jurisdiction of any
State.  Furthermore, restrictionists
argue that there should be a ban on any use of force outside that permitted in
Article 4(2) because when States have acted unilaterally, they have chosen to
do so outside of the legal norms (Bellamy and Wheeler, 2003, p.482).  Brownlee argues that the application of such
could lead to abuse as States may use human rights as a pretext for
intervention in order to fulfil their own objectives (Brownlee in Ramsbotham
and Woodhouse, 1996, p.64).  Parekh
maintains that the State has the exclusive responsibility for it’s citizens and
that the responsibility for the State rests with its citizens in that if there
is anarchy and chaos, it is the responsibility of the citizens of the State and
its political leaders (Parekh, 1997, p.56)

 

The issues of the UN Charter ‘s failure to authorise the use
of armed force to protect human rights or for other humanitarian purposes is
seen by some to be deficient (Reisman, 2005, p.284).  Since the end of the Cold War, the U Security
Council has passed Resolutions authorising the use of armed force to address
major humanitarian crises within member States (such as Bosnia, Kosovo, Iraq, Somalia
and Libya), that threaten international peace and security. In the solidarist
view, such Resolutions bridge the gap between the recognition of human rights
and the lawful and legitimate use of armed force (Jackson and Sorenson, 2016,
p.146).  Such justification of war is now
known as the Responsibility to Protect. 
Where State sovereignty implies responsibility of the State and
therefore the protection of it’s citizens the principle of non-intervention is
complicit to the international responsibility to protect where a population is
at risk and the State is unable to avert that risk or harm.  A recent example of this is shown by the President
of Ruissia, Vladimir Putin, who invoked the right to protect as justification
for the annexation of Crimea, in 2014 arguing the military intervention was
Russia’s responsibility for the protection of the property and lives of ethnic
Russian living in the Crimea. A further, more current example is that of the
Rohyngya Muslims in Myanmar and the ongoing questions such as whose
responsibility is it to step in and deal with the humanitarian crisis that is
taking place there, how bad do the breaches of human rights need to be before
the UN Security Council makes a decision to step in?  These questions demonstrate the debate on
State Sovereignty and the Right to Protect.

 

The objective of this essay was to examine and critically
analyse theoretical debates surrounding the divisive topic of humanitarian intervention.  Having examined the theoretical groundwork upon
which at humanitarian intervention is founded, it is easy to see that the debates
themselves raise many further issues that will continue to occupy the English School
and others for quite some time to come. Inconsistencies in the application of international
and customary law and the lack of a willingness to enforce the law either with
reference to State sovereignty or from a duty or right to protect only demonstrates
a global deficiency in respect of gaining global consensus on what norms should
be or could be enacted in terms of humanitarian intervention.