ABSTRACT: International interest in the promotion of political rights, elimination of dictatorships and support of democratic governance is growing. In international law this interest is manifested in international conventions and practices that devote attention to the right of political self-determination. For example, in 1994 the United Nations Security Council issued Resolution No. 940 calling for support of the Haitian people’s right of political self-determination. The world recently witnessed the movement known as the Arab Spring, and many countries and regional organizations have supported efforts to end slavery and construct good governance tools across the globe. The right of political self-determination has become an integral part of global legal discourse because it is consistent with the ideology of modern international law which gives primacy to individuals. There is no doubt that this right needs international support because dictatorial governments do not recognise this right and expose their people to suppression and international crimes.
However, international support of this rightc an conflict with one of the most important legal principles, that of non-interference. The last period of many strikes began to undermine the principle of non-interference, and this legal clash brought the world’s attention to human rights, including the right to political self-determination. In this paper I study and analyse evidence of the right to political self-determination in international law and interventions that promote it within the legal framework. Then I attempt to encourage the transformation of the sovereignty and the principle of non-interference from an absolute to a relative concept, which would permit violating this principle in order to respect other rights granted by international law, in particular the right to political self-determination.
More than 400 years have passed since Hugo Grotius wrote ‘On the Law of War and Peace’, in which he indicated the right of the Roman Emperor Constantine to use arms against any Governor who committed crimes or violations against his people. He also wrote about the right of all emperors to use arms, or to threaten the use of arms, against the Persians, who persecuted Christians only because of their conversion to Christianity. Since that time, the writings of scholars have increasingly defended the right of the state to use force against countries that consistently violate human rights and suppress freedom and dignity.1
Humanitarian intervention clearly has a historical dimension. However, international problems, in recent years, have been marked by debates and international treatises, largely as a result of the growing interest in human rights and fundamental freedoms within the international community, all of which are certainly inclusive of political participation, freedom of expression and intellectual freedom.
The right of political self-determination is a foundation stone that underpins the structure of contemporary human thought. At least on a theoretical level, it is accepted by the international community, which supports democracy as a model of good governance,2 through international conventions and political conferences. These include the International Covenant on Civil and Human Rights and pronouncements of the United Nations (UN), such as Security Council Resolution No. 792, which calls for free and fair elections in Cambodia.3
Many researchers have made contributions to the right of self-determination of colonial peoples both to demand secession from domination by an outside force or for autonomy and even access to the right of political self-determination for all the people to choose the form or method of the ruling authority that runs the country. There are many writings that assert the right of political self-determination as one of the primary rights of peoples such as those of Srdjan Cvijic or Jure Vidmar, which I will review when I study the right of political self-determination through this research.
Increasingly in current times, outside countries intervene in support of oppressed peoples and to promote the development democracy and good governance. This is reflected in British Prime Minister David Cameron’s decision to intervene in the case of the uprising of the Libyan people against the government of Moammar Khadafy, when he said, "I think it is the moment for Europe to understand we should show real ambition about recognising that what's happening in North Africa is a democratic awakening, and we should be encouraging these countries down a democratic path".4
However, Article 2/7 of the UN Charter does not allow the organisation to intervene in matters that are essentially within the internal sovereignty of a country. This is reflected in one of the principles of international law, "the principle of non-interference". The principle of non-interference is not only applied to the relationship between the organisation of the UN and various countries, but also applies to the relationships between all countries.5
This article explores the right of political self-determination in international law. Then try to identify how this right is supported by interventions that encourage popular demand and create legal foundations for it. Next I describe changes to the sovereignty and the principle of non-intervention caused by attention to the individual’s legal rights, which has become the cornerstone of modern legal speech.
The Right of Political Self-determination
The right of political self-determination is an integral part of the general concept of the rights of individual civil liberties. In the legal literature, especially as regards the concept of customary rights, we find a diverse range for the right of self-determination, according to the type of popular demand for it. The gradation of this customary legal right generally translates to some three demands, as follows. Firstly, there is the right to self-determination for independence from colonisation, secondly the right to self-determination as regards secession from a sovereign entity6 and finally, the modern right of political self-determination that is dedicated to the goal of achieving the highest degree of good governance through effective public participation in governance. This last demand, in particular, is based upon the full acceptance of the democratic model, and finds its greatest expression in international practices.7
Thus, the right to self-determination provides the perfect complement to the right of free speech, upon which the freedom of the people is based. The importance of the language of self-determination suggests that a form of self-realisation of the people is in line with the desire to achieve a sense of nationalism, either politically or culturally. It is important to know that the claim of self-determination is an ongoing process to achieve the desired freedom, which does not stop until the people realise their desires, nor does it depend directly on the individual concerns, but derives primarily from the popular desire of the population of a state or province.8
The Right of Political Self-determination in Contemporary International Law
After the end of World War II, an intellectual movement to respect human rights and make them a key hub for intellectual dialogue, especially as regards the legal aspects, began to develop among scholars and politicians.9 This development leaves no doubt that the human right of self-determination of the national and political shape of a people’s destiny is an important aspect of the evolution of international law. Thomas Grant has said that "international law is evolving in accordance with international practice”; which, clearly, we can say is based on the deepest aspirations of the human mind, thus placing the human mind in control of the practice with its interests and orientations. This is confirmed by the intellectual revolution that has led worldwide to the legal renunciation of violence and hatred as instruments of policy, and the direction of the legal regulation of international activities through treaties and conventions.
There have been numerous international conventions and international and regional instruments dealing with the right to self-determination, the most important of which is the Declaration on the Granting of Independence to Colonial Countries and Peoples 1960,10 along with the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States, adopted by the General Assembly of the United Nations in 1970.11 Other important milestones include the Universal Declaration of Human Rights 1948,12 the International Covenant on Civil and Political Rights 1966,13 the African Charter on Human and Peoples Rights of 198114 and the Copenhagen meeting of the Organization for Security and Cooperation in the humanitarian dimension 1990,15 as well as an additional number of international treaties and conventions.
Moreover, the International Court of Justice has supported the development of the global trend to enshrine the right of peoples to self-determination as a legal right in international law.16 There are many cases of the issues that the court has backed unequivocally and unconditionally for the benefit of those groups that are demanding their right to self-determination. This was confirmed, for instance, by the International Court of Justice in its judgment of 1995 in the case of East Timor17 as well as its decision in the Namibia case of 197118 or the Court’s statement on October 16, 1975, on the issue of Western Sahara.19
Nor does this issue stop here, as the Court of Justice has focused on many international issues affecting the desire of peoples for self-determination; for example, we can read through the advisory opinion issued by the Court on 9/7/2004 on the legal consequences of the establishment of a wall in the Occupied Palestinian Territories by the Israeli government. In that case, the Court concluded the following result in important legal terms, which is that “construction [of the wall], along with measures taken previously, severely impedes the exercise by the Palestinian people of its right to self‑determination, and is therefore a breach of Israel’s obligation to respect that right”.20
All of these instruments and international conventions give meaning to the physical and moral right of self-determination of peoples, thereby establishing landmarks of legal precedence in contemporary international law. Part of the language of this law is that this right derives its strength from people's desire to achieve a national and political destiny. This is confirmed by the conclusions reached by the participants in a 1991 international meeting of experts to clarify the concepts of the rights of peoples and to recognise their rights in international law.21
Michla Pomerance has discussed the right of self-determination as a rule of law in international law, and has said that the practice of states through participation in international conventions dealing with the rights of the people is sufficient to establish the correct formula of customary law in practice. Moreover, he points out that, because of the continuity of dealing with this right in international discussions and negotiations, as well as the emphasis put on the right in the instruments and international conventions, the right to self-determination has become an important legal basis and a rule of law in international law.22
International humanitarian laws and international treaties support the idea that self-determination is a natural right protectable under the law, because, in the modern world, human rights law simply provides the legal means to protect the fundamental freedom of the populace to social, economic and political opportunities, both individually and collectively. It could be argued that the starting point for human rights and the right of self-determination is to protect the rights, whether individually or collectively. Tomis Kapitan has pointed out that collective self-determination is the best way to protect the human rights of a country’s members and thus improve their quality of life and that the right to self-determination means the freedom of every individual to participate meaningfully in decisions concerning the sovereignty over the territory in which he or she lives.23
However, the right of self-determination goes a step beyond individual human rights because it grants a number of those rights necessary to maintain the identity of a particular group. These rights involve positive obligations on the international community such as the duty to respect the cultural heritage of various ethnic groups. In addition, it must be pointed out that the right of self-determination is not an absolute right without any restrictions; unlike absolute rights, which are gradated by the formulation of jurisprudence, its purpose is not to protect the personal physical safety of groups or individuals. In contrast to absolute rights, the exercise of this right can involve significant changes to the structural and institutional outline of any State.24
In spite of this, we are treating self-determination as a human right and not as a political principle, even if the result of the right to self-determination has some limitations, where this right is guaranteed to all peoples on the basis of equality between people.25 There are many references to the right of self-determination in instruments of international or regional human rights, such as Part VIII of the Helsinki Final Act 1975,26 Article 20 of the African Charter of 1981 on Human and Peoples' Rights27 and the Paris Charter 1990 for a New Europe.28
The right of self-determination has evolved conceptually through the development of self-determination in the Declaration of 1970,29 as well as through the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966 or by the Vienna Declaration of 1993.30 This latter document gave the right of self-determination as an important legal character of the international commitment to achieve the collective demands and to not raise barriers and pitfalls against these demands and to support and encourage the achievement of popular demands to the right of self-determination.31 These goals are to be achieved through the recognition of the international community of a particular group as a "people" entitled to self-determination under international law. Moreover, the International Court of Justice has documented this legal obligation in the case of East Timor (Portugal v. Australia), when the Court ruled that the right of self-determination "is one of the fundamental principles of contemporary international law."32
In international jurisprudence, there is a broad debate on the application of the right of self-determination outside the colonial domain where, as I mentioned earlier in terms of the historical attachment of the updated terms of self-determination in the UN system and the emergence of the stage of colonisation, it is customary that there is a legal value. But in the opinion of David Rick, in the colonial context, the right to self-determination has withered and is inconsistent with the important development in human rights such that the right of self-determination must be linked with the trend to widen the dissemination of the principles of humanitarian law. Seen in this light, linking the context of colonial self-determination became untenable with the end of the remnants of the colonial era.33
In the same context, Michla Pomerance has written that, in the future, self-determination might well become a rule of law through rationing or custom after post-colonialism. This could especially be the case against the governments of the countries that completely ignore the fundamental interests of the citizens and only give them such minimal rights as to be considered effective citizens of the state.34 In addition, Rosalyn Higgins argues that the right of self-determination in contemporary international law consists of the right of the majority to participate in the exercise of power or effectively in the political unit of an internationally recognised nation state.35
International instruments contain many references about supporting the right of political self-determination. Perhaps the most prominent examples come from the International Covenant on Civil and Political Rights, as represented by Article 1, which explicitly states, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. Also, Article 25 declares a similar right of peoples to participate effectively in the political process within the state.36
Moreover, the eighth principle of the Helsinki Agreement 1975 stipulates that the participating countries are bound to respect the equal rights of peoples and their right to self-determination, and that “all peoples have the right always in full freedom, to determine when and as they please, and their internal political and external”.37 In the same context, Idowu has said that the instruments and international conventions, including the International Covenants on Civil and Political Rights and the social and economic development in the state, as well as those instruments that address the concepts of human rights, have all painted a smooth path for the right of self-determination by developing the concept of popular participation and equality among peoples.38
It is important to note that this participation enables the people to develop a sense of self-respect and promotes awareness of politics. Also, it alerts governors regarding what their duties are towards the citizens and pushes them to consider the demands of their people and work on issues of justice and social peace as well as to promote the harmony of class and ethnicity. Moreover, provided that such participation is based on the natural human right to choose and express an opinion without interference from the power to adopt a policy contrary to the interests of the peoples, it conduces to the equitable distribution of wealth. This is possible in the sense that participation is done in order to manufacture and develop a political system by stakeholders of the people and is not an expression of the will of a minority with special status.
Further, the right of political self-determination has contributed to the growth of political freedom of action by giving citizens the right to form trade unions and political parties and to join them without being forced to do so, which is usually a power exercised by the ruling party of the country. The effective exercise of these freedoms comes from the active role of this right, which has raised those freedoms and truly made it a goal or a right in a legal and political sense on the international level. Hence, the importance of the right of self-determination in terms of the content and form of international law or international relations where granting this right of the nation in shaping all aspects of life of the country is done freely and in accordance with the traditions of that nation.
However, the tools of good governance and the effective guarantee of people's participation in national decision making require a special social contract. The international jurisprudence has expressed its views on this contract and indirectly through the concept of democracy, whereby, from my point of view, political participation involves the practical expression of the social contract, of which the first guiding point will be the people and the second the authorities of the state legislative and the executive and judicial branches. The most important pillar of this contract is the compromise between the people and authorities of the state, through which, therefore, democracy can be considered a good tool to ensure compromise.
The right to political self-determination undoubtedly hasbecome an extremely important legal concept, not lightly ignored or neglected.This right is central to contemporary legal thought and makes the individual the most important issue in public international law. However, this right is not always recognised by dictatorial governments, as in Libya and Syria. Therefore, residents of such nations need international support to protect themfrom murder, torture and other violations of human rights. As well, international efforts are necessary to support and promote this right in line with contemporary international law. International interventionsshould always force repressive governments to meet the demands of their people, as happened in Haiti and in Libya.
What is the meaning of international intervention to support the right of political self-determination?
It is essential to differentiate between international intervention to protect human rights and international intervention to support or promote the right of political self-determination. However, both interventions seek to uphold the dignity of human rights, in addition to which they share an interdependence and interrelatedness in terms of goals or actions in the style of intervention.39 International jurisprudence has tended to focus on the study of unilateral intervention for the protection of basic human rights, such as in cases of murder, persecution, torture, and displacement, rather than upon interventions to foster political self-determination.
This is despite the argument that an environment of democratic politics and political options for the population could contribute to the ending of human rights violations. However, it should be noted that steps have been taken to enable international intervention in support of the political right to self-determination. An example of this is Security Council Resolution 940, which sought to support democracy in Haiti through the restoration of a constitutional government to the country after the military coup led by Raoul Cedras.40 Other examples include the U.S. prosecution for the invasion of Panama in 1989,41 and the economic sanctions imposed on South Africa during the apartheid era.42
International intervention for the protection of human rights can be broadly classified into two types: apparent intervention, which focuses directly on protecting human rights; and hidden intervention, which works to fulfil the same aim through the promotion of political self-determination. An example of these kinds of intervention occurred in Kosovo in 1999, when the international community interceded to protect ethnic Albanians from genocide and atrocities committed against them by the Serbs.
It can be argued that the right to self-determination played a pivotal role in the outbreak of the crisis. This is evidenced by the events that occurred in Kosovo after the declaration in 1989 by Slobodan Milosevic, which abolished the autonomy of Kosovo Albanians.43 In 1991, the people of Kosovo held a referendum, the results of which expressed a majority desire to secede from Serbia and establish an independent republic.44 The Serbian government refused to recognize the wishes of the people of Kosovo, resulting in armed clashes that led to violations of international human rights. The international community launched a programme of military intervention to protect human rights, particularly with regards to murder, persecution, and torture.45 While this is an apparent intervention, a hidden intervention was also achieved through the creation of the sovereign State of Kosovo.46
Another example of these interventions can be seen in the 1973 decision of the Security Council regarding the situation in Libya. The decision took an apparent form, to protect civilians from attacks by the forces of Muammar al-Gaddafi,47 but this decision contributed to a hidden international intervention to change the regime in Libya. This eventually culminated in the current situation in Libya: a trend toward democracy and international recognition of the Libyan Transitional Council.48
These examples have illustrated the two types of international intervention to support the right of political self-determination: the first is the apparent type, in terms of form and subject, such as intervention in Haiti; the second is the hidden type, so called because it overlaps with international intervention to protect human rights, such as the interventions in Kosovo and in Libya.
Legal Basis for International Intervention to Promote the Right of Political Self-Determination
With the global trend towards democracy, the importance of individual human rights and freedoms are increasingly being recognised by the international community, leading to their acceptance as basic principles of contemporary international law. It may even be possible to say that these rights have become a common heritage of mankind.49 Consequently, countries commit to respecting these rights, irrespective of political borders. This commitment has found its basis in a wide range of international conventions that oblige member states to respect human rights and general freedoms, most notably the United Nations Charter. As stated in the preamble to the Charter,
The United Nations has also contributed to and adopted numerous resolutions that encourage the spread of freedom and democracy. In addition, the UN has established many programmes aimed at supporting democracy, such as the United Nations Development Programme.51 These interests are not constrained with certain borders or specific geographical areas, but extend to all the people of the earth.
It is clear that respect for human rights and freedoms, including the right to political self-determination, cannot be achieved if every state is allowed to observe or deny these rights within its borders. It is therefore advisable that each state extends its consideration beyond its borders and that it respects other peoples, under the governance of a responsible international community.52 This opinion is confirmed in Article 56 of the UN Charter, which obliges members to act individually or to subscribe to the achievement of the purposes set forth in Article 55.53
A number of international instruments and conventions have adopted the concept of political rights and freedoms. One of the foremost examples is the International Covenant on Civil and Political Rights, Article 1 of which states that,
The Universal Declaration of Human Rights has also crystallised the basis of a universal legal system of human rights and freedoms. Article 28 states that, “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”.55 This was also recognised in the text of Resolution No. 2625 issued in 1970 by the General Assembly of the Declaration on Principles of International Law Concerning Friendly Relations. This resolution clear provides the right of oppressed peoples to struggle for fairness and to receive the necessary moral and material assistance to do so.56 In addition, paragraph VIII of the Helsinki Convention of 1975 states that,
Many regional conventions, such as the Charter of the European Union, have also embraced these political rights. For example, Articles 4 and 5 of the Charter of the EU focus on the principles of human dignity, while Articles from 9 to 16 stipulate the basic freedoms that should be enjoyed by European citizens, and Articles 49 and 50 summarise the concepts of social justice and equality of rights.58 Similarly, the African Union (AU) has issued a Charter on Human and Peoples’ Rights. Article 13 of this charter states that,
It is possible to argue against the binding legal force of the International Covenant on Civil and Political Rights or the Universal Declaration of Human Rights of the General Assembly of the UN for two reasons: first, that these acts can be considered to simply be declarations of the intentions and aspirations of the international community regarding the freedoms and human rights under consideration and therefore are of no moral value, and therefore do not constitute an international obligation; second, that these acts were issued from the General Assembly in the form of a non-binding recommendations.60
However, the binding legal force of the Universal Declaration of Human Rights and other international conventions, such as the International Covenant on Civil and Political Rights or the Helsinki Convention of 1975, has been crucial in supporting the rule of international customary law, which requires respect for human rights and fundamental freedoms.61 After the establishment of the UN in 1945, the international behaviour of nation states has demonstrated a clear interest in the right to self-determination and the support of those political rights brought about by contemporary international law.
This behaviour has been demonstrated through the following actions:
1- The establishment of organisations, associations and committees to monitor and preserve those rights and freedoms. These include the Office of the High Commissioner for Human Rights in the United Nations,62 the United Nations Fund for support of democracy;63 the committee for human rights in the European Parliament;64 the African Commission on Human Rights;65 and the Peoples’ Rights and the Inter-American Commission on Human Rights.66
2- The organisation of international treaties and conventions, as well as regional agreements, which promote the right of political self-determination. For example, the International Covenant on Civil and Political Rights (1966);67 the African Charter on Human and Peoples’ Rights of 1981;68 the Copenhagen meeting of the Organization for Security and Cooperation in the humanitarian dimension in 1990;69 and the Helsinki Convention of 1975.70
3- The measures that have been consistently taken by a number of countries and international organisations against those who violate those rights and freedoms. These include the international sanctions on South Africa between 1960 and 1985;71 the economic sanctions on Uruguay in 1980;72 the recent economic sanctions on Syria, which have been based on a decision of the Turkish government in 2011;73 or sanctions on Syria from the EU in 2011.74 This can also be illustrated by the military measures taken by the US to support democracy in Haiti in 1994–1995.75
4- The public statements by the leaders of countries in support of those rights and freedoms. One example of this is former US President George W Bush on 20 December 1989, who stated that the entry of US troops into Panama was intended to defend democracy and human rights in that country.76 This can also be illustrated by the comments of British Prime Minister David Cameron, on the occasion of the decision to intervene in the case of the uprising of the Libyan people against the government of Muammar Gaddafi, when he said,
The decisions and declarations supporting human rights, along with the customary rule through the behaviour of the international community, have clearly laid the foundation for a legal obligation to support and preserve the right to political self-determination. The international community has a proven record in attempting to ensure the respect for those rights and freedoms guaranteed by those documents, in particular the right to political self-determination, regardless of the territorial boundaries that separate different countries.
However, supporting the right of political self-determination through strong international assistance to defenceless people conflicts with the principle of non-intervention. This principle still finds expression and is used widely both in the legal literature and in some advertisements and statements by international organisations. However, contemporary legal thought does not permit any human being to suffer rights violations and other crimes as a consequence of demanding rights which consistent are with this theory and international public law. Therefore, this modern legal discourse is not consistent with and also affects this principle.
The principle of non-interferencein the Phase of Shifting
The principle of non-interference in the internal affairs of states is one of the basic foundations on which the world of post-World War II was established. This principle is based on the UN Charter, the text of which in its entirety bans intervention in the internal affairs of the different countries as a subject of international law. The most important of these statutes is stipulated in Article 2/7 of the charter, and prohibits interference in the internal affairs of states. The basis of this ruling is that the sovereignty of each country is considered to be equal, and therefore no country is allowed to interfere in the internal affairs of another.78
Based on the text of Article 2/7 as a basic document that is based on this principle, we believe that this provision prevents only the UN from intervening in the internal affairs of countries. However, through Article 3 of the Rights and Duties of States, the International Law Commission has interpreted the principle of non-interference as broadly and comprehensively as possible, prohibiting states from interfering in the internal affairs of other countries. Specifically, Article 3 of the Draft Declaration on Rights and Duties of States has stated that “Every State has the duty to refrain from intervention in the internal or external affairs of any other State79 .”
However, the development of this principle in the implementation status, particularly in the field of human rights and freedoms, has not yet reached the stage of an agreement status between international jurists or members of the international community of nations and organisations in contemporary international law. Essentially, at the present time, we have arrived at an advanced stage of attention to freedoms and human rights. Through the adoption of standards for the promotion of democracy and political support of human rights, the international community, in most cases, agrees on the need not to stop at the protection of human beings against murder, torture and persecution80 . And thus, the issue of humanitarian intervention poses a direct challenge to the ideas of sovereignty and non-interference, especially as it concerns direct intervention in the internal affairs of any country.
In practical terms, the end of the Cold War and the fall of the Soviet Union had the greatest impact on focusing international attention and flexibility in international decision making on the human rights field. Particularly, during the period of the Cold War, the UN Security Council was the setting for a fierce ideological battle between the Soviet Union on the one hand and the Western countries on the other, and specifically the United States of America (USA), in order to protect the interests and protection of each encampment’s allies from intervention.81
It is my view that the principle of non-intervention has found effective space in international law as a result of the following facts:
This was confirmed by the Security Council when it initiated direct intervention under the pretext of protecting human rights in Somalia and Rwanda, which took place after the collapse of the Soviet Union and the end of the Cold War.82 In fact, 1992 is a milestone on the path of international interventions in some international conflicts on humanitarian grounds. Prior to that date, the international interventions carried out by the UN were for the sole purpose of meeting goals related to the conservation of international peace and security. But since that date, the Security Council has sought to find a frequent relationship between humanitarian aid and Chapter VII of the Charter. For example the Security Council issued several successive decisions relating to Somali affairs and all those decisions were designed to achieve the lofty goal of providing humanitarian help. Among those decisions, Resolutions No. 733,83 No. 751,84 No. 76785 and No. 794,86 give the international community an opportunity to intervene directly, and allow the use of all available means for the success of such an intervention.
Therefore, these transformations have created a matchup between the concepts of the principles of sovereignty and the principles of human rights, which allowed for the principle to be converted from an absolute to a relative status. In confirmation, let us refer to UN Secretary-General Kofi Annan in his annual address to the General Assembly of 1999, in which he said:
Note that Mr Annan focused on the shift of the concept of sovereignty from country sovereignty to the sovereignty of the individual or the human being. And by this focus sovereignty is thereby renewed as a concept and has the support of an increasingly wide range of actors as a result of the spread of individual rights and the right of every person to self-determination. This is because the traditional concepts of sovereignty no longer satisfy the aspirations of the peoples in their quest for freedom and stability of living without domination or oppression or persecution. In addition, Mr Annan acknowledged that the state is responsible for protecting its people and cannot limit itself to maintaining its sovereignty and control.
In fact, Mr Annan’s report has contributed to creating international practices that have contributed to the reduction of efforts against non-intervention and to establishing the principle of international responsibility for the protection of a country’s citizens as a universal principle. Therefore, these observations can be introduced when they are urgently needed to break the principle of non-intervention and promote the active role of the international protection of human rights.88
In response to these shifts and changes, the Canadian government announced the establishment of the “International Commission on Intervention and State Sovereignty” (ICISS).In 2000, the Commission issued a report after just one year, on “The responsibility to protect”, which included many new concepts and called for a shift from the concept of sovereignty as an authority to that of sovereignty as a responsibility.89 Furthermore, this shift means that the state is responsible for the protection of its citizens and the actions of the local authorities, in addition to being responsible for such protection in the view of the international community.90 The acceptance of this new concept and the shift in sovereignty means that in the case of the state’s inability or lack of intention to protect its citizens, the responsibility shifts to the international community and specifically to the organs of the UN, particularly the Security Council. It is obvious that the committee was trying to develop a broad concept for international intervention and the formulation of a global consensus on how to respond to large and systematic violations of human rights.91
In the same context, the World Summit held at the UN Headquarters in 2005 took the same path, although some objections were presented in the preparatory meetings for the summit. The participating countries split into streams between the supporters and opponents of the fundamental shifts in the principle of sovereignty, particularly as regards the principle of non-intervention, as well as the adoption of the principle of responsibility.92 Representatives of some countries made a proposal to the UN Security Council to adopt the concept of responsibility for the protection of endangered communities as stipulated in the report of the Secretary-General. However, Russia objected to the motion, which had a strong influence, especially since it is a permanent member of the Security Council and has veto power. In addition, some Latin American countries intervened during the discussions to vote on some of the paragraphs.93
However, in response to the suggestions of the World Summit, the General Assembly adopted the principle of responsibility, after an amendment to the basic texts contained in the resolution of the summit. Therefore, this amendment admits the resolution is not as required and does not abide by the conditions laid down by the ICISS Commission, such as the requirement of each member of the Security Council not to use its veto on issues that require international responsibility. In addition, the amendment reduces the concept of the protection of human rights violations.94
After the adoption of this shift as recognised by the World Summit, the principle of the responsibility to protect appeared in the draft resolution submitted by Britain to a draft resolution in the Security Council on the protection of civilians in armed conflicts. After a delay of more than a month because of a split within the corridors of the UN Security Council, Resolution 1674 was issued.95 This resolution, in the text of paragraph 4, included a statement on the principle of the responsibility to protect populations from crimes, ethnic cleansing and genocide and crimes against humanity.96 However, Russia announced that it is premature to adopt the principle of the responsibility to protect in the documents of the Security Council. Furthermore, the Russian delegate asked to add a clause to the main project confirming the commitment of the Security Council to respect the political independence and sovereign equality and territorial integrity of all states. But this objection was not actually a barrier to recognising the principle of responsibility for the protection contained in the content of the resolution.97
Subsequently, based on the situation in Darfur, the Security Council adopted the principle of the responsibility to protect, and then confirmed this principle in legal form in Resolution 1706 based on the situation in Sudan. That resolution authorised the Security Council to establish a peacekeeping force to be affiliated to the UN and to carry out its duties to maintain security and peace. The resolution pointed to the responsibility of every member of the UN to protect its citizens. This was in addition to the responsibility of the international community to provide assistance to protect, if the state failed to carry out the responsibility to protect on its own.98
This has resulted in an important and fundamental question: the absolute sovereignty and the concept of the principle of non-intervention are in the process of shifting from a narrow to a broad interpretation, allowing for international humanitarian intervention when circumstances so warrant. Or, seen another way, the principle of non-intervention has evolved from the status of a stalemate to the case of flexibility in cases in which a majority of state actors agree that intervention is required for the protection and advocacy of human rights.
Moreover, the UN Security Council has contributed to the establishment of numerous international courts to try crimes of genocide, crimes against humanity and war crimes. Specifically, the Council has established, for a specified period and a specific dispute, the following legal forums: the International Court for the former Yugoslavia (Resolution No. 827);99 the International Criminal Tribunal for Rwanda (Resolution No. 955);100 the Special Court for Sierra Leone (Resolution 1315);101 and the Special Tribunal for Lebanon (Resolution 1757).102
Through embodying and applying specific adaptations of the principle of international responsibility in the prosecution of the crimes of each national case, these courts have virtually broken the principle of non-interference. That is evidenced by the inability of those countries to carry out their obligations to their own people and the subsequent necessity of the international community to shoulder the responsibility to protect individuals and punish the perpetrators of other offenses against them from other citizens and decision makers in the state. These courts were formed independently of the internal judicial systems of the countries, which are essentially within the domestic jurisdiction of the state. Thus, the adoption of the international community of these courts means that the terms of such courts rank higher than the provisions of the national courts, which represent the judicial power of the state.
This development does not depend on those courts, but rather on a fundamental shift in the development of international criminal tribunals through the setting up of the permanent International Criminal Court (ICC), which is the embodiment of the role of effective criminal responsibility. This court is the most prominent achievement in the field of the application of individual criminal responsibility at the international level. The ICC was established in 2002 as the first international court capable of trying individuals accused of crimes of genocide and against humanity, war crimes and crimes of aggression.103
There is no doubt that all the changes in the contemporary international reality in the face of new challenges and intellectual developments must keep pace with the evolution of traditional legal principles.104 Also, there is no doubt that this development is being imposed on international relations and thus is at the core of public international law.The doctrinal controversy that has spread among scholars and in the corridors of the United Nations (UN) on the impact of human rights concepts is naturally included in the content of public international law.105 Thus, these changes impact on the workings of public international law with new challenges and developments, such as the gradual shift from the concept of absolute sovereignty to that of relative sovereignty106 as well as the concept of sovereignty as a responsibility. This shift can be considered as a bridge to link the modern concepts and the traditional notions of state sovereignty.107
Since the mid-twentieth century, through the establishment of international organisations and committees concerned with human rights as well as the establishment of courts of war crimes and the concept of crimes against humanity, we have witnessed the emergence of the idea of the international responsibility to protect the citizens of each state.108 However, through the end of the Cold War and the fall of the Berlin Wall during the nineties of the twentieth century, these concepts developed and crystallised rapidly and led to the wide spread of intellectual and doctrinal freedoms.109 And thereby, these steps contributed to the emergence of the principle of sovereignty as a responsibility, which has evolved and allowed the imposition of the mandate of sovereignty on to the international community. This is especially the case if a country fails to or is unable or unwilling to carry out its responsibility to stop violence and persecution, displacement and torture and to achieve social justice and equality.110
The right of political self-determination has been enshrined in international public law and became an integral part of human rights. It is inclusive of other human rights because realising it requires ensuring the non-violation of other human rights through the tools of good governance. This right is addressed in many legal rules, such as the International Covenant on Civil and Political Rights, and is supported through international efforts, such as its promotion in Haiti and Libya.
However, the exercise of this right has collided with repressive and dictatorial governments that do not recognise this right or participatory governance. Thus arise the suppression and violation of human rights in general in order to end claims to the right of political self-determination. Such repression and rights violations push the international community to support oppressed peoples because contemporary human thought is in line with these demands and does not accept repressive governments. This support and reinforcement, though, conflict with the principle of non-interference which has been fundamental to international law.
However, the principle of non-intervention faces stiff opposition based on the need to protect human rights and the international community’s responsibility to do so. The international community has taken many steps that have led to the weakening of traditional manifestations of sovereignty, especially the principle of non-intervention. In addition, many organisations have adopted a number of international resolutions and policies that perpetuate the ongoing transformation of the principle of non-intervention. However, these practices and decisions have not contributed to the collapse of this principle but rather to the acknowledgment of exceptional circumstances in which it may be broken to protect human rights. Therefore, we can say that the stalemate with the principle of non-interference has ended, and views have become more flexible, supplying the basic conditions for the transformation to the principle of international responsibility for the protection of human rights.
*Yahya Alshammari is a Phd Candidate at Brunel Law School. His interest involves linking traditional with modern approaches in the assessment of contemporary issues in the realm of public international law, with a focus on the issues human rights and the right of political self determination.
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103 Shane Darcy, Joseph Powderly, Judicial Creativity at the International Criminal Tribunals, Oxford University Press, 2010, p. 2.
104 J. L. Holzgrefe, RobertO. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge University Press, 2003, p. 6.
105 Helen Stacy, Human Rights for the 21st Century: Sovereignty, Civil Society,Culture, Stanford University Press, 2009, p. 32.
106 Natalie Luba Mychajlyszyn, TimothyMilton Shaw, Twisting Arms and Flexing Muscles: Humanitarian Intervention and Peacebuilding in Perspective, Ashgate, 2005, p. 24.
107 J. L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge University Press, 2003, p. 275.
108 Regarding this issue, Jason Dominguez says since the Second World War, the international community has been witnessing a dramatic shift in interest in human rights and international intervention to protect these rights. Through the development of regional and international treaties, international courts have created more opportunities for international intervention, and have determined this can happen in the case of a failure of the authorities to exercise the internal responsibility to protect their citizens. Accordingly, in any conflict, the international balance tends toward human rights with other principles of the laws, which means that the global trend has been towards the attention to those rights. See J. Dominguez, “From Paralysis in Rwanda to Boldness in Libya: Has the International Community Taken ‘Responsibility to Protect’ from Abstract Principle to Concrete Norm under International Law?” Houston Journal of International Law, Vol. 34, 2011.
109 JenniferWelsh, Humanitarian Intervention and International Relations, Oxford University Press, 2003, p. 177.
110 J. L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge University Press, 2003, p. 275.