human rights and intervention: a case for caution

Human Rights and Intervention: A Case for CautionAuthor(s): Caroline ThomasSource: Irish Studies in International Affairs, Vol. 5 (1994), pp. 15-28Published by: Royal Irish AcademyStable URL: http://www.jstor.org/stable/30001817 .

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Human Rights and Intervention: A Case for Caution*

Caroline Thomas

Department of Politics, University of Southampton

Many of the moral dilemmas with which we are faced in the international arena today arise from uncertainty over the relative value to be attached to sovereignty and to human rights, to states and to human beings. A vigorous debate is ongoing within the fields of international law, political philosophy and my own discipline of international relations, as well as in the domain of practical politics.1 The debate has implications for peace and security, not least for attitudes towards humanitarian intervention.

Particularly over the last few years, the balance has been shifting in favour of human rights. This is evident in Secretary General Boutros Boutros-Ghali's Agenda for Peace,2 as well as in UN practice.3 What is also clear in the Agenda for Peace,

I. The literature is proliferating. For some very different recent perspectives, see R. Falk, 'Human rights, humanitarian assistance and the sovereignty of states', in Kevin M. Cahill, A

framework for survival (Basic Books, 1993), 1-14; R.B. Lillich, 'The development of criteria for humanitarian intervention', Paper presented at the Wilton Park Conference, 2-4 July 1993; W.M. Reisman, 'The Constitutional Crisis of the UN', American Journal of International Law 87 (1993), 83-100; J. Chopra and T. Weiss, 'Sovereignty is no longer sacrosanct: codifying humanitarian intervention', Ethics and International Affairs 6 (1992), 95-117; N. Wheeler, 'Pluralist or solidarist conceptions of international society: Bull and Vincent on humanitarian intervention', Millennium 21, No. 3 (1992), 463-87; A. Roberts, 'The UN and international security', Survival (Summer 1993), 3-30; loan Lewis, 'Making history in Somalia: humanitarian intervention in a stateless society', Discussion Paper No. 6, Centre for Global Governance, LSE, Sept. 1993.

2. Boutros Boutros-Ghali, 'An agenda for peace: preventive diplomacy, peacemaking and peace-keeping'. Report of the UN Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992. A/47/277; S/24111; 17 June 1992.

3. On the translation of the Agenda for peace into practice, see Boutros Boutros-Ghali, 'An agenda for peace: one year later', Orbis 37 (3) (Summer 1993), 323-32.

*Paper presented at the Fifteenth Annual Conference of the Irish National Committee for the Study of International Affairs, 26 November 1993.

Irish Studies in International Affairs, Vol. 5 (1994)

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however, is that the underlying tension between sovereignty and human rights is far from resolved. Moreover, the Agenda refers to the indispensability of the sovereign State as the fundamental entity of the international community'.4

The increased concern for human beings relative to automatic respect for state sovereignty is a welcome development. However, caution is required. The interventionary road can be a treacherous path for those who intervene, for those in whose name the intervention takes place, and indeed for other civilians. This is evident from UN involvement in Bosnia and Somalia.5 Several fundamental questions need to be ironed out, not the least of which are (i) what rights are regarded as a basis for intervention and (ii) in whom is authority vested to authorise and to undertake the interventionary action. While at first glance the answer to both questions may appear self-evident, if we scratch below the surface the notion of self-evidence is not so convincing.

Worries such as those expressed above have been stated clearly by statespeople and academics alike. Commenting in 1992 at the first Summit of the Security Council, Zimbabwe's Foreign Minister Shamuyarira stated the problem eloquently and succinctly:

In the era we are entering, the [Security] Council will be called upon to deal more and more with conflicts and humanitarian situations of a domestic nature that could pose threats to international peace and stability. However, great care has to be taken to see that these domestic conflicts are not used as a pretext for the intervention of big Powers in the legitimate domestic affairs of small States, or that human rights issues are not used for totally different purposes of destabiliz- ing other Governments. There is, therefore, the need to strike a delicate balance between the rights of States, as enshrined in the Charter, and the rights of individuals, as enshrined in the Universal Declaration of Human Rights.

Zimbabwe supports very strongly both the Universal Declaration of Human Rights and the Charter on these issues. Zimbabwe is a firm subscriber to the principles in the United Nations Declaration on Human Rights. However, we cannot but express our apprehension about who will decide when to get the Security Council involved in an internal matter and in what manner. In other words, who will judge when a threshold is passed that calls for international action? Who will decide what should be done, how it will be done and by whom? This clearly calls for a careful drawing up and drafting of general principles and guidelines that would guide decisions on when a domestic situation warrants international action, by the Security Council or by regional organizations.6

Global politics are in the process of fundamental transition.7 Joseph Nye wrote in 1992 that 'The world has changed more rapidly in the past two years than at any time since 1945'.8 We are witnessing the erosion of sovereignty owing to technological progress, the workings of the international economy, and the increasing role of powerful non-state actors in world affairs. The state itself is suffering from a crisis

4. Op cit., Paragraph 10. For other references in the Agenda to the centrality of sovereignty, see Paragraphs 2, 17, 19 and 30.

5. For a really excellent study of UN involvment in Somalia, see Lewis, op. cit. 6. Cited in Lillich, op. cit. 7 . See, for example, J. Rosenau, Turbulence in world politics (Hemel Hempstead, 1990). 8. Joseph Nye, 'What New World Order?', Foreign Affairs 71, No. 2 (1992), 83.

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of legitimacy and a crisis of capacity. It is too small to deal with problems which have global aspects, such as ozone depletion and global warming, yet it seems too big to tackle other political problems for which a local response is currently being demanded. The crises facing the state as the fundamental unit of political identity and key actor in international affairs are posing opportunities for, as well as obstacles to, change. For example, in some ways they are facilitating the emergence of a global society based on fundamental human rights from the apparently outmoded structure of the interstate system. The crisis of the state is stimulating discussion about political identity, human rights, democracy and accountability. It opens up space for real discussion of a new world order and the role of democratic participation below and between states.

The shifting balance between sovereignty and human rights is an important part of this process of global transition. However, both the transition itself and its expression in this particular balance have yet to reach a stable point. Falk has argued that:

There is a definite trend in diplomatic rhetoric, the practice of states and international organizations, and public opinion to brush aside sovereign rights in the face of humanitarian emergency arising from either political circumstances or natural disaster, but is this trend authoritative?9

Even if it is authoritative, do the will and the capacity exist to meet the challenge? We must be careful not to run before we can walk, for to do so may well be counterproductive: the balance may tilt back again in favour of sovereignty over human rights.

THE SIGNIFICANCE OF DOMESTIC JURISDICTION AND THE ROLE OF THE NON-INTERVENTION NORM

The UN Charter recognised the importance of domestic jurisdiction in Article 2(7):

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter V11.

Domestic jurisdiction is protected by the non-intervention principle. The latter has much to recommend it in an international system characterised by heterogeneity and hierarchy.10 In many respects it has played a useful role in international affairs, not least in affording some protection for weak states against the predatory tendencies of some stronger powers.11 Where a transgression has occurred, the onus has been on the transgressor to justify the action in the eyes of the international community of states. The only legitimate reason for intervention has been self- defence. The non-intervention principle afforded a democratisation of a sort which

9. Falk, op. cit., 9. 10. Caroline Thomas, 'The pragmatic case against intervention', in I. Forbes and M. Hoffman,

Political theory, international relations and the ethics of intervention (London, 1993), 91-103. 11. On the importance of this function for weak states, see Caroline Thomas, New states,

sovereignty and intervention (London, 1985).

17



was quite special when compared with the situation prior to the Treaty of Westphalia in 1648, when the moral authority of the Church of Rome was transcendent. Indeed, this democratisation is appreciated in the Agenda for peace.12 The non-intervention principle has formed a foundation stone of international order, and lent a degree of predictability-in theory, at least-to the conduct of interstate relations.

CHANGING ATTITUDES TO DOMESTIC JURISDICTION AND THE NON- INTERVENTION NORM

A significant shift came in 1991 with the annual report of Secretary-General Javier Perez de Cuellar. He argued that:

It is now increasingly felt that the principle of non-interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated with impunity...The case for not impinging on the sovereignty, territorial integrity and political independence of States is by itself indubitably strong. But it would only be weakened if it were to carry the implication that sovereignty... includes the right of mass slaughter or of launching systematic campaigns of decimation or forced exodus of civilian populations in the name of controlling civil strife or insurrection.13

While this is true, finding a balance which is both morally acceptable to the majority of states and operationally feasible is difficult and will not be achieved overnight. The focus on the state here is essential, for it is the primary agent from which change and action are required to put a new balance into practice. States need to be convinced that a change is in order.

Recent interventions in northern Iraq, Somalia and the former Yugoslavia14 suggest that a change in attitude may be taking place, but it is not necessarily universal or consistent. In the case of the creation by the US, the UK and France of Kurdish 'safe-havens' in northern Iraq, 'there was little or no support in the UN Security Council for military intervention to protect the Kurds'.15 Security Council Resolution 688 did not provide for military enforcement action under Article 42 of the UN Charter. Western powers claimed that the Resolution provided authority for their action, but this is highly dubious. Indeed, Wheeler comments that these powers hid 'behind the fig-leaf of Resolution 688'. While these powers were prepared to act in the north of Iraq, they were less inclined to act in the south to protect the Marsh Arabs.

In the case of Somalia, action was initiated by the US, authorised by the Security Council and led by the US. Security Council Resolution 794, of 3 December 1992,

12. Op. cit., Paragraph 19. The end of this paragraph states that: 'Respect for democratic principles at all levels of social existence is crucial: in communities, within States and within the community of states' (emphasis added).

13. Javier Perez de Cuellar, 'Report of the Secretary-General of the United Nations', in UN Year- book, 1991 (New York, 1991), 7.

14. For a succinct general discussion of these examples from an international relations perspective, see N. Wheeler, 'Humanitarian intervention and the international community', in H. Cullen, D. Kritsiotis and N. Wheeler (eds), Politics and law offormer Yugoslavia, University of Hull ECRU Research Paper, 3/93 (1993), 26-35.

15. Wheeler, op. cit.

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under Chapter 7, recognised the situation as a threat to international peace and security. It authorised the Unified Task Force (UNITAF) to employ 'all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia'. Lewis has commented that:

if this was the first instance of unilateral UN military intervention in a (theoretically) sovereign state, this development has been pushed even further by the successive UN, and more directly, military adminstration, which took over in May 1993 as UNOSOM II, with even wider powers to act against any faction violating the (warlords') cease-fire and disarmament agreements.16

The state of Somalia had to all intents and purposes ceased to function when the intervention was authorised, and in a sense this fostered conditions where the argument for intervention was perhaps stronger. However, the complexity of the evolving situation and the role of the UN force in it is cautionary.

The case of the former Yugoslavia is even more complex. A useful succinct chronology of events highlighting Security Council resolutions is provided by Kritsiotis.17 Early Security Council resolutions sanctioning the deployment of UN peacekeeping forces to Croatia and then Bosnia and Herzegovina had the consent of the warring parties, and hence did not constitute intervention. However, the situation changed with Security Council Resolution 770 on 13 August 1992. This called on all states, under Chapter 7, to take 'all necessary measures' to assist in the movement of humanitarian aid. Wheeler comments that, despite this mandate, UN forces on the ground (primarily French and British), continued to operate in the classical peacekeeping role. On 7 May 1993, Resolution 824 was adopted unani- mously, declaring that Sarajevo, Tuzla, Zepa, Gorazde, Bihac and Srebrenica and their surroundings 'should be treated as safe areas by all the parties concerned and should be free from armed attacks and from any hostile act'. The Resolution also called for the adoption of any 'additional measures necessary' in the event of the failure by any party to comply with this Resolution. On 4 June 1993, Resolution 836 called under Chapter 7 for the full and immediate implementation of all relevant resolutions, and extended the mandate of UNPROFOR to enable it to deter attacks against the safe areas mentioned in Resolution 824. Furthermore, it authorised member states, acting individually or through regional organisations, to use air power in and around the safe areas to support UNPROFOR in performing its mandate. Despite this authorisation, there has been a reluctance to take military action to enforce these safe areas.

These three examples all demonstrate the extreme complexity of the issue of intervention for protection of human rights. In particular they highlight the problem of authority regarding decisions to intervene or not to intervene, and the capacity to carry out the task effectively. Even if universal agreement exists on the justice of a particular case for intervention, in utilitarian terms intervention may not be appropriate. The operation may simply prove too difficult.

Given these changing attitudes, what role is there for the non-intervention norm today? A primary benefit of the norm is that it protects weak states against the machinations of stronger states. This is important. In the twentieth century the

16. Lewis, op. cit., 1. 17. D. Kritsiotis, 'International law and the prospect of the use of force: the case of Bosnia-

Herzegovina', in Cullen, Kritsiotis and Wheeler, op. cit., 45-51.

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international system has been characterised by gross inequalities of political, economic and military power. (Contrast this with the characteristics of the Euro- pean state system in the nineteenth century, for example.) Moreover many of these inequalities have been increasing, not decreasing, during the 1980s especially. Such power disparities take on a particular significance where ideological, religious and cultural diversity is widespread. This was apparent during the Cold War, given the crusade mentality of the superpowers. What's more, certain other actors have fought wars not for limited rational ends but for ways of life-for example consider Iran during the Iran/Iraq Gulf War.

An important question is whether in this post-Cold War period the conditions of diversity and hierarchy which previously characterised the international system, and which increased the significance of the non-intervention principle in the eyes of weak states, still exist. As regards the power hierarchy, the fundamental change has been the passing of the bipolar structure of the world and its replacement by an essentially unipolar structure. One need only consult World Bank and IMF reports to ascertain that the disparities in economic power remain.18 Certainly there has been some movement in the league tables of developing, least-developed, middle- income, newly industrialising and so forth, but the fundamental structure remains more or less intact. Many states, such as in sub-Sahara Africa, are worse off now than a decade ago. Geopolitical19 motives for action and inaction remain strong. While Fukuyama has suggested that the end of history is in sight, Joseph Nye has argued that the 'post-Cold War world is witnessing a return of history in the diversity of the sources of international conflict'.20 In some respects conflicting world-views are becoming more apparent and more politicised. Consider, for example, the growth of Islamic and Protestant fundamentalism, and the sharp divergences in conceptions of fairness apparent between Northern and Southern states, and indeed within each of these two broad groupings, in the run-up to the Rio Conference on Environment and Development.

The international situation is in a state of flux, and interpretations of social and political change at various levels throw up conflicting trends and contradictory patterns. Held and McGrew, for example, point to the confusion which arises when we consider that:

[we are at] that historic moment when liberal democracy seems to have tri- umphed on a global scale. Yet within contemporary Europe, the nature of political community and sovereign power have been thrown into question by the resurgence of ethnic nationalism, the intensification of regional integration and global turbulence.21

Similar confusions on a global scale are noted in the Agenda for Peace:

We have entered a time of global transition marked by uniquely contradictory trends. Regional and continental associations of States are evolving ways to

18. World Bank, World Development Report 1992 (Washington DC, 1992). 19. Falk defines the geopolitical dimension of concern as 'The shaping of international diplomacy

through the agency of initiatives, ambitions, and a worldview of a leading state or state' (op. cit., 2).

20. Nye, op. cit., 85. 21. David Held and Anthony McGrew, 'Globalization and the liberal democratic state', Govern-

ment and Opposition 28, No. 2 (Spring 1993), 261-88.

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deepen cooperation and ease some of the contentious characteristics of sovereign and nationalistic rivalries. National boundaries are blurred by advanced communications and global commerce, and by the decisions of States to yield some sovereign prerogatives to larger, common poltical associations. At the same time, however, fierce new assertions of nationalism and sovereignty spring up, and the cohesion of States is threatened by brutal ethnic, religious, social, cultural or linguistic strife. Social peace is challenged on the one hand by new assertions of discrimination and exclusion and, on the other, by acts of terrorism seeking to undermine evolution and change through democratic means.22

Just as there is evidence of increasing hierarchy and heterogeneity, simultaneously there are signs of globalisation which suggest homogenisation of aspects of culture and an increasingly porous sovereignty.

Consider this: the general situation of global politics, at the sub-state, state and transnational level, is confusing; if we superimpose on this a radically different relationship between sovereignty and human rights, the picture becomes far more complex. This is not a reason for inaction; it is, however, a strong case for caution. This point was stated strongly by Perez de Cuellar:

We are clearly witnessing what is probably an irresistible shift in public attitudes towards the belief that the defence of the oppressed in the name of morality should probably prevail over frontiers and legal documents.

We must now ponder this in a manner that is at once prudent and bold. In a prudent manner, because the principles of sovereignty cannot be radically challenged without international chaos quickly ensuing23 [emphasis added].

THE BASIS FOR HUMANITARIAN INTERVENTION

The case for humanitarian intervention requires an elucidation of precisely which rights humanitarian intervention is supposed to uphold. This is essential as a basis for developing a consistent policy. If there are fundamental human rights which every individual possesses through virtue of being human, then there also exists an obligation to attempt to fulfil those rights. Moreover, such a notion of common humanity implies a common, transnational morality as the basis for those rights.

Do we have evidence of a set of human rights, informed by a transnational morality, which can determine when interventionary action is called for? This is a tricky question to which there is no definitive answer. Attitudes diverge sharply between universalists and cultural relativists. The political philosopher Margaret MacDonald once commented: 'To assert that "Freedom is better than slavery" or "All men are of equal worth" is not to state a fact but choose a side. It announces "This is where I stand".'24 This is probably true of attitudes to transnational morality informing human rights.

Some commentators argue that the Universal Declaration of Human Rights and accompanying Covenants are informed by a transnational morality. There are

22. Op. cit., Paragraph 11 23. Cited by Falk, op. cit., footnote 4, as UN Focus: Human Rights, 'The limits of sovereignty',

undated newsletter. 24. I am indebted to Raymond Plant for drawing this to my attention.

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arguments for and against this interpretation. However, it is true that the Declaration sprang from the Western liberal tradition. Indeed, it was the insistence of the Western states which resulted in the bifurcation of human rights into two distinct Covenants, the Civil and Political and the Economic and Social. Yet at the time of drafting the two Covenants it was generally accepted that they were of equal weight and that all the rights were indivisible.25 This bifurcation was largely the result of Western unease over the idea of positive social and economic rights, as opposed to negative civil and political rights. Even so, the US did not ratify the Covenant on Civil and Political Rights until 1992, and then it was conditional on an accompanying package of five reservations, five understandings, and four declarations.26 The US has still not ratified the Covenant on Social and Economic Rights.

Michael Akehurst has commented that it 'took 28 years to convert the "soft law" of the Declaration into the "hard law" of the Covenants, and at the end of 1981 less than half the states in the world were parties to the Covenants'.27 The position has improved somewhat. Out of over 180 UN member states, at 1 January 1993 there were 117 ratifications of the Economic and Social Covenant, and a slightly smaller figure, 114, of the Civil and Political Covenant.28

Several points are noteworthy. Firstly, the significance of the Universal Declaration and the Covenants lies not merely in the signing but in the implementation. The form is worth little for those it is supposed to protect unless it is given substance. Ratification of the Covenants has not resulted in the fulfilment of many of these rights by the majority of the signatories. Secondly, signing of the Declaration and Covenants cannot be accepted as a self-evident similarity in intention and interpretation on the part of the signatories. For example, an Islamic interpretation of the Covenants may be very different from an American interpretation.29 Who is to adjudicate between such differing interpretations of a document signed by both and to be adhered to by both parties? Thirdly, while many commentators are identifying universal convergence on social and political rights in terms of ratification, it would appear that the case for universal social and economic rights is at least as strong-perhaps a little stronger.

In June 1993, a two-week World Conference on Human Rights took place in Vienna, attended by 171 countries, 841 non-governmental groups and various intergovernmental organisations.30 A reading of the UN Chronicle would suggest that everything went off smoothly, and that the basis has been set for 'a new vision of global action for human rights into the next century'.31 However, the way in

25. For a full account and explanation see Tony Evans, 'The evolution of an international regime for human rights' (Ph.D. thesis, University College of Wales, Aberystwyth, 1993).

26. See David Stewart, 'The U.S. ratification of the Covenant on Civil and Political Rights: the significance of the reservations, understandings and declarations', Human Rights Law Journal 14, No. 3-4 (30 April 1993), 77-83.

27. Michael Akehurst, 'Humanitarian intervention', in Hedley Bull (ed.), Intervention in world politics (Oxford, 1985), 95-118.

28. Jean-Bernard Maric, 'International instruments relating to human rights', Human Rights Law Journal 14, No. 1-2, (26 February 1993), 62-3.

29. See, for example, Mohammed Zafrullakhan, Islam and human rights (London Mosque, 1976).

30. Vienna Declaration and Programme of Action set goals for the 21 st century', UN Chronicle (September 1993), 55-7.

31. Ibid., 54.

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which the Vienna Declaration was arrived at does not inspire confidence that there has been a real change of heart. Indeed, one could argue that the conference lent weight to the position that we do not yet have a universally accepted notion of fundamental human rights; nor do we have an accepted universal moral basis for such rights.

The final Declaration and Programme of Action conceals the intense and deep- seated differences between several Asian and Arab states on the one hand, and the Western states, Japan and the Commonwealth of Independent States (CIS) on the other (and, for that matter, intense differences between certain developing states on particular issues, for example India and Pakistan over Kashmir). On the opening day of the Conference, US Secretary of State Warren Christopher made a speech in which he said that 'We cannot let cultural relativism become the last refuge of oppression'. He argued that the 'universality' of human rights set a single standard of acceptable behaviour worldwide.32 What he did not explain, however, was where this universality springs from in our culturally heterogeneous world. Many Third World representatives naturally interpreted this as universality for Western values. The Chinese and several Islamic countries in particular argued that this interpretation of ideas about rights favoured the cultural assumptions of Western states.33 The outcome was a Declaration that reflected a Western, particularly a US, concession on the right to development, and an Asian/Arab concession on the universality of rights. In the words of one commentator, 'On the whole western delegations left satisfied that it was their human rights agenda which was determining the whole course of the human rights debate'.34

Are we to believe that in the course of this international conference, which displayed such intense and heated differences of opinion, statespersons on all sides were won over by the arguments of their former opponents? Unfortunately not. What resulted essentially was a political bargain or compromise in terms of the form of the Declaration. But the importance of form is minor compared with the significance of substance: what impact is this Declaration having on development, and on the increasing number of peoples suffering civil, political, economic and/or social repression, given the circumstances of signing? Indeed Mr Pierre Sane, the secretary-general of Amnesty International, argues that the Declaration, far from being a victory for tougher international enforcement by the acceptance of the universality of rights, does nothing more than restate the status quo.35

A strong case for the significance of cultural relativism has been argued by Ernest Gellner, who attacks those social scientists who 'behave as if culture simply did not exist, as if it were possible to excogitate principles for, say, the limits of state action which would be valid for all cultures'.36 The fall of communism has encouraged such interpretations about human societies following universal rules. But Gellner maintains that what we are witnessing today is not the triumph of liberal democracy worldwide but rather a reversion to the earliest origins of social behaviour, to

32. News Digest for June 1993, 39537. 33. See John Cooper, 'Human rights: towards an Islamic framework', Gulf Report No. 34,

(October 1993), 17-23. 34. Ibid., 17. 35. Ian Traynor, 'Amnesty derides human rights talks', The Guardian, 22 June 1993. 36. Times Literary Supplement, 16 July 1993. See also discussion by Simon Jenks, 'The melting

pot bubbles over', The Times, 18 August 1993, 14.

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ethnicity, tribalism and territoriality. In the words of Jenks, 'The glue of post- communist communities is not the free-market but the chauvinism of individual cultures'.37 This suppports the argument of Michael Walzer, who does not accept the existence of transcultural moral foundations that can underpin discussion about politics, including intervention. For Walzer, a moral justification for intervention in a particular society would have to rest on values expressed but not realised in that particular society.38

However, the political philosopher Raymond Plant argues forcefully that there must be a transnational moral basis for human rights.39 Without this, the definition of such rights amounts to nothing more than the expression of a preference, and the implications of this for humanitarian intervention are worrying; imperialism will raise its head again. Plant argues that 'If there is no agreement beyond the supposed self evidence of the humanitarian need or the rights abuses as a basis for intervention, then it is not clear that a more interventionist world order can be put on a rule governed basis'. Without such a rule-governed basis, Plant argues that intervention will depend on the discretion of the rich and powerful. He is doubtful, however, about 'whether states can agree on a moral basis for rules of intervention when vague ideas about humanitarian concerns and ideas about rights and what they require for their enforcement have to be given a specific interpretation'. The interpretation itself makes them more controversial and increases the role of political discretion. That, in turn, militates against the development of a rule-based approach to intervention.

In contrast, at the level of practical politics, Perez de Cuellar has questioned the need in the present stage of international affairs for further theorising about human rights, regarding humanitarian need as self-evident. He has advocated instead more interstate cooperation and a combination of common sense and compassion:

We need not impale ourselves on the horns of a dilemma between respect for sovereignty and the protection of human rights. The last thing the UN needs is a new ideological controversy. What is involved is not the right of intervention but the collective obligation of States to bring relief and redress in human rights emergencies.40

THE PROBLEM OF CONFIDENCE

Even if rule-based intervention of the sort advocated by Professor Plant is not possible yet (if at all), it is clear that there is a need to reconsider how decisions regarding intervention are taken. This is particularly important given that this post- Cold War era is not characterised by a particularly high level of trust and confidence. This is due partly to history and partly to recent events. While this new era is perceived as new and welcome by some in the North, many in the South and some in the North need to build up trust to view it as such. If this problem is to be overcome, it is vital that humanitarian interventions are not regarded by the majority

37. Jenks, op. cit. 38. For a discussion of these ideas see Raymont Plant, 'The justifications for intervention: needs

before context', in I. Forbes and M. Hoffman (eds), op. cit. in note 10, 104-12. 39. Raymond Plant, 'Rights, rules and world order', in M. Desai and P. Redfern (eds), Global

governance: ethics and economics of the world order (Pinter Press, forthcoming), ch. 8. 40. De Cuellar, op. cit. in note 13, 8.

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of states and peoples as being Western or US-driven. The recent history of US foreign policy has not been helpful in this regard, and

has underlined the role of geopolitics. It was only in the mid-I 980s that the US was condemned by the International Court of Justice for its 'unlawful use of force against Nicaragua'. Moreover, immediately after the fall of the Berlin Wall, it invaded Panama to install a client regime, vetoed two UN Security Resolutions that condemned its actions, and disregarded the UN General Assembly resolution that denounced the invasion as a 'flagrant violation of international law and of the independence, sovereignty and territorial integrity of states' and called for the withdrawal of the US armed invasion force from Panama.41

The interventions that we have witnessed over the past few years have been quite selective: Somalia, northern Iraq and Bosnia have been the focus for interventionary activity; Angola, Liberia, Haiti and Burundi have not. This begs the question as to why one case warrants intervention and another does not. Richard Falk suggests an answer: geopolitics.

We need to appreciate that geopolitics rules the roost when it comes to enforcement of human rights and humanitarian intervention. This means, among other things, that the overwhelming number of instances will involve the flow of force from North to South, and that strong states are definitely off-limits... It also means exclusions for mixed reasons of motivation and capability ...and double standards...42

If this problem of confidence is to be addressed, it is imperative that the UN is perceived as the major actor, and as an independent actor, when assessing the relative balance between statist claims and those normative claims of human rights. Selectivity, exclusions and double standards must be minimised, and consistency of claim and policy must be visible. For this to happen, the UN, particularly the Security Council, must be reformed. This is necessary if it is to meet the humanitarian challenge, which is increasing given current global turbulence.

THE WAY FORWARD: REFORM OF THE SECURITY COUNCIL

Many ideas have been floated concerning the reform of the UN system, ranging from expansion of the Security Council to the formulation of a second chamber elected by world citizens rather than nominated by governments.43 This is far too big a topic for discussion here, but certain points are of immediate importance given the current crisis of a world characterised by weak and disintegrating states, where the number of possible candidates for humanitarian intervention is escalating daily.

First of all, the legitimacy of Security Council decisions must be enhanced by increasing representation there in terms of permanent membership. While Germany and Japan have been suggested, perhaps because of the level of their financial contributions, this would certainly not satisfy the developing countries. Another possibility might be to extend veto power beyond the five permanent members to

41. Noam Chomsky, 'World order and its rules: variations on some themes', Journal of Law and Society 20, No. 2 (Summer, 1993), 145-6.

42. Falk, op. cit., 8. 43. See for example, Daniele Archibugi, 'The reform of the UN and cosmopolitan democracy:

a critical review', Journal of Peace Research 30, No. 3 (1993), 301-15.

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the non-permanent -or to do away with it. Secondly, the transparency of decision- making there must be improved so that there can follow greater accountabilitv. It has been shown that 'Decisions that appear to go further than at any time in the history of the United Nations are now ultimately being taken, it seems, by a small group of states separately meeting in secret'.44 Moreover, Reisman also comments that 'Within the Council, the P-5 meet privately to coordinate policy, and within the P-5, the P-3 meet privately to coordinate policy. There is no question as to the identity of P-1.' Thirdly, there must be greater liaison between the Security Council and the General Assembly.

However, unless geopolitical considerations give way to universally accepted normative concerns, then even these measures will have variable, and often limited, impact. The suggestions conform to a conception of international relations rooted in the centrality of the state. The immediate aim is greater democratisation, representation, transparency and accountability between states. Yet the notion of humanitarian intervention rests on a belief that people matter, and indeed that rights and obligations extend beyond states to other actors in international relations. This necessitates a completely different conception of the structure and functioning of international politics; it hinges on the acceptance that we live not merely in a society of states but in a world society composed of many different types of actors operating at a variety of levels. The arguments surrounding humanitarian intervention echo the long-standing and ongoing debates about the type of world in which we live. There is no guarantee that new members of the Security Council from the Third World would be motivated less by self-interest or geopolitics than the existing permanent members, especially if they are strong powers (as they probably would be) such as India or Brazil.

INDIVISIBLE HUMAN RIGHTS: DAY-TO-DAY OBLIGATIONS

It is worth pondering a moment on the practical implications on a day-to-day basis if we are serious about the indivisibility of human rights. If 'positive' social and economic rights are to be taken as seriously as 'negative' civil and political rights, then we need to consider what are the appropriate obligations not only in time of acute need-the so-called crisis-but in general.

The operation of the international economy has led to unsustainable production and consumption in the North and the adoption of inappropriate and similarly unsustainable development paths in the South. Moreover, it has resulted in gross inequalities between states of the North and the South. During the 1980s the

44. W. Michael Reisman, 'The constitutional crisis in the United Nations', American Journal of International Law 87 (1993), 85-6. In fact it is interesting to quote Reisman at length here:

...as the Council has become more effective, it has become more secretive...it now contains ever- smaller 'mini-Councils', each meeting behind closed doors without keeping records, and each taking decisions secretly. Before the plenary Council meets in 'consultation', in a special room assigned to it near the Security Council, the P-5 (Permanent Five) have met in 'consultation' in a special room now assigned to them by the Security Council; and before they meet, the P-3, composed of the United States, the United Kingdom and France, have met in 'consultation' in one of their missions in New York. All of these meetings take place in camera and no common minutes are kept. After the fifteen members of the Council have consulted and reached their decision, they adjourn to the Council's chamber, where they go through the formal motions of voting and announcing their decision.

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situation in many developing countries has worsened. Debt repayments have soared with interest rate fluctuations. Commodity prices have plummetted. Economic liberalism has become the buzz-word. But consider this:

The World Bank reports that protectionist measures of the industrial countries reduce national income in the South by about twice the amount of official aid, itself largely export-promotion, most of it directed to richer sectors...In the past decade, 20 of 24 countries belonging to the Organization for Economic Co- operation and Development (OECD) have increased protectionism... These practices, along with programmes dictated by the International Monetary Fund and the World Bank, have helped double the gap between rich and poor countries since 1960. In Latin America, the real minimum wage declined sharply from 1985-92 as neo-liberal 'structural adjustment' programmes were imposed, while the number of poor rose almost fifty per cent between 1986 and 1990 - 'economic miracles' in technical terminology, because real gross domestic product (GDP) rose (in parallel with external debt) while the wealthy and foreign investors were enriched. In Africa their impact was even more severe for the general population: a study by the IMF conceded thatfrom 1973-88, 'the growth rate is significantly reduced in IMF programme countries relative to the change in non-programme countries', putting aside the consequences for the poor majority45 [emphasis added]. The statistics on debt are eye-catching. In 1983, for the first time in post-colonial

history, the net transfer of money was from South to North. Today it stands at around $50 billion per annum, and this refers simply to debt repayment. Susan George cites 'a much understated $418 billion' in the period 1982-90, or the equivalent in today's terms of six Marshall Plans.46 Northern states have also benefited at the expense of the South over this period from declining commodity prices.47 Indeed those declining prices have meant that sometimes even when structural adjustment policies have 'worked', in terms of increasing exports, export earnings have fallen. In sub-Saharan Africa, exports rose by 25% in the 1980s but the export earnings of those countries fell by over 30%. Moreover, during that period the region's debt increased by 113%. It is instructive to note that only in two cases has debt been written off to any significant degree: in the case of Poland, as a reward for the transfer to a free-market economy and a democratic polity; and in the case of Egypt, as payment for help during Desert Storm.48

Increasingly, therefore, the structure and process of the international economy is working to the disadvantage of the achievement of social and economic rights of the majority of inhabitants of the developing countries. If we are serious about fundamental human rights as set out in the two Covenants, then we need to consider whether there is an obligation to alter this state of affairs. This would necessitate not sending in troops but altering fundamental economic policies and reforming the major institutions in the international economy.

45. Chomsky, op. cit., 162. 46. Susan George, The debt boomerang (Pluto Press, 1992). 47. Plunging prices, 1980-88: sugar 64%; tin 57%; coffee 30%; cotton 32%; crude oil 53%; iron

ore 17%; lead 28%; wheat 17%. 48. C. Thomas, 'Debt and poverty: exploring the links', Medicine and War 9, No.3 (July-Sept.

1993), 217-18.

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CONCLUSION

Liberated from the constraints of the Cold War period, in the post-Cold War era the UN Security Council has become increasingly active and effective in issues of international peace and security, including the issue of protection of human rights. In principle this concern for people rather than blind, automatic respect for state sovereignty is to be welcomed; implicitly it acknowledges the claims of a world society rather than merely a system of states. In a world society, the violator of human rights cannot be regarded as their foremost guardian. However, while elements of a world society are apparent in the practice of global politics, the interstate system has certainly not been entirely superseded. The transition is under way, but the reality that we have to work with is that states still matter. This may not be very palatable but we ignore it at our peril. Within these constraints, if we cannot have a rule-based order informed by a universal morality, we can at least strive to ensure that decisions to protect human rights are taken by the Security Council in an increasingly democratic, representative, transparent and accountable fashion.

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human rights and intervention: a case for caution

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