Bibliographical Information
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Emerging Norms of Justified
Intervention
Edited by Laura W. Reed and Carl Kaysen
(Cambridge: American Academy of Arts and Sciences, 1993)
Table of Contents |
Introductory Note
This volume contains revised versions of the papers presented at
the American Academy's conference on Emerging Norms of Justified Intervention
on January 5 and 6, 1993, and the comments of the invited commentators on the
initial drafts of the papers.
The conference is the first step in an ambitious program to examine
the recent shifting of boundaries between the internal affairs of member states
whose sovereignty is protected by the United Nations Charter and those matters
which the UN and other international organizations deem to be within their
cognizance. For many nations, the concept of "justified intervention" has long
been a contradiction in terms. The "justification," however couched, was all
too likely to be the extension of power or the projection of ideology. Yet the
rapid expansion of opportunities for collective international action in the
wake of the Cold War has generated UN responses to aggression in Kuwait, famine
and anarchy in Somalia, civil war and military occupation in Cambodia, and
dictatorship in Haiti. Our inquiry is whether these responses represent more
than the temporary convergence of historical circumstances. Can they be said to
reflect the emergence of new norms, shaped by all nations, subordinating the
prerogatives of national sovereignty to the recognition of a common humanity?
The material presented here sets out an initial conceptual
framework for the further steps in the program: a series of studies of the
recent history of international interventions made and eschewed around the
world, beginning with Latin America and Africa, and moving on to Eurasia, South
Asia, and the Middle East. Each study will examine the occasions,
rationalizations, and instruments of intervention, as well as the political
processes that led to intervention (or, in appropriate comparison cases, that
led to no action). Each of these surveys will be undertaken by an
interdisciplinary working group of scholars from the United States, Canada, and
countries in Western Europe (typically the nations leading and organizing
interventions) and from countries in several other regions (typically the
objects of intervention).
The term international intervention, as used here, involves
two notions. First, international carries the sense of action taken
under the aegis of the UN or one of the regional associations incorporated
within the UN framework - e.g., the Organization of American States (OAS).
Second, intervention denotes an action that is in some sense unusual,
going outside the bounds of day-to-day diplomatic intercourse among nations. As
we will point out, an intervention in the traditional language of international
law, is an illegal action. In exploration of changing legal concepts and
evolving norms, this connotation is no longer universally appropriate.
The Law and Politics of Intervention in Historical Perspective
Of the seven papers in this volume, the two historical treatments
of the evolution of norm of intervention, by Lori Fisler Damrosch and Marc
Trachtenberg, illuminate the preconditions necessary for the emergence of a
stable norm concerning intervention. Damrosch examines the values underlying
international legal doctrines governing nonintervention and their embodiment in
the UN charter, and asks how they will accommodate some recent examples of UN
action. She traces the influence of two competing dusters of values: state
system values, or "the principles inherent in the international system of
separate, sovereign states, including the principles of nonuse of force,
political independence of states, and sovereign equality," and human rights
values, or the "principles relating to the rights of individual human beings to
exercise political freedoms and to participate in self-government." These
values in turn underpin the twin objectives embedded in the traditional
international legal norm of nonintervention: conflict prevention or
containment, and the promotion of state autonomy.
Trachtenberg, looking chiefly at the behavior of the European
powers in the last half of the nineteenth century and the first quarter of the
twentieth, sees an active record of interventions, frequently unilateral, by
one or another of the major powers but often with the tacit, and sometimes the
explicit, support of the others. He nevertheless agrees that "the rise of
nationalism and the nation-state in the nineteenth century" gave rise to "the
idea that a nation should be free to determine its own destiny," which in turn
"implied a general norm of nonintervention." His principal focus, however, is
on the two principal exceptions to that general norm: the right to intervene to
maintain the European balance of power, and "the right of powerful European
states to impose their rules on countries they viewed as less civilized." These
exceptions correlate neatly with Damrosch's emphasis on state system values and
human rights values, suggesting that the general norm of nonintervention could
be overcome when intervention was deemed to be more likely to preserve the
existing peace or to protect the human rights of Europeans in non-European
countries. The modem analogues to Trachtenberg's exceptions are the legitimacy
of intervention to ensure nuclear nonproliferation and a tendency to sanction
intervention when certain human rights norms (no longer identified as
distinctively European) are violated.
Underlying this historical trajectory are deeply embedded
assumptions about the principal threats to international security and the
relative importance of various human rights. hi both law and politics, it was
assumed that the chief danger to the security and stability of the
international system was the threat of external aggression by one nation
against another. As Trachtenberg reminds us, Lord Castlereagh insisted that the
Concert of Europe concern itself more with countering the military projection
of revolutionary power than with combating ideological contamination through
the spread of democratic principles. Internal conditions were thus of no
concern unless they crystallized in a military threat that required a
preemptive strike. On the human rights side, Damrosch and Trachtenberg agree
that the primary human right to be protected was the collective right of state
autonomy or self-determination, even if it was long limited to European states.
A general norm of nonintervention served both these goals
simultaneously, reinforcing an image of the international state system as
composed of self-contained, autonomous spheres, each minding its own business
unless faced with a dear threat of external aggression. As Neta Crawford shows
in her paper, this equilibrium was strengthened further by the rise of a norm
of decolonization As colonies proclaimed their right to self-determination, the
norm of nonintervention was seen both to safeguard that right and to
strengthen systemic stability in the developing world by delegitimizing
military intervention by former imperial powers.
Undermining the Foundations of the Old Norm
Over the second half of the twentieth century the twin foundations
of the existing norm of nonintervention have been equally shaken. The widely
perceived linkage of fascism and communism with external aggression, coupled
with the bipolar nuclear equilibrium of the Cold War, gradually fostered the
emergence of a new paradigm of conflict. The proliferation of domestic
insurgencies, rebellions, and full-fledged civil wars has superimposed an image
of domestic implosion or explosion as a major challenge to the stability of the
international system. At the same time, people around the world have become
increasingly aware of a panoply of human rights in addition to, and often in
contradiction to, the right of self-determination.
These two phenomena can combine to place even a more traditional
conflict in a very different light. The Iraqi invasion of Kuwait, for instance,
seemingly the epitome of old-fashioned external aggression, is immediately
linked to dictatorship and widespread violation of human rights in Iraq. More
generally, the simmering tension that Damrosch observes between the norm of
nonintervention and the norm of self-determination in cases of internal
repression is now brought to a boil by the desire to promote an entire range of
human rights in addition to political autonomy. Overall, the twin sets of
values that the norm of nonintervention was originally designed to promote now
seem to be converging in favor of intervention.
Robert Pastor and Ernst Haas both take this changed configuration
of systemic and human rights values as their point of departure, although they
reach very different conclusions. Each examines the concepts and doctrines that
are currently being used to justify interventions. Pastor takes a leap into the
legal future, advocating an expansive view of what can and should be done. Haas
counters with a string of skeptical caveats.
Pastor starts with the proposition that the basic standards of
states' behavior in relation to their populations is already enshrined in
international human rights law. Thus, the questions to be examined are, What
happens when states do not adhere to the standards? Will the international
community act against the sovereign will of an offending state? If so, when,
under what circumstances, and how? In the first place, who will decide that a
contravention of the standards has occurred? Pastor's view of what is already
normative in international law goes beyond the human rights covered by the
Geneva Convention; peace, social justice, and development are also existing
norms. The central question of the whole inquiry is better posed in terms of
involvement rather than intervention. The issue is not how responsibilities
should be divided among international organizations and national governments,
but how the international community should perceive and respond to its
collective problems.
As a way of organizing the answers to these questions, Pastor
presents a matrix (Figure 1, p. 139) with columns showing different
types of threats and injuries to the international community. These are ordered
by their seriousness, ranging from direct transborder aggression to the
generation of large refugee streams, human rights violations, suppressed or
manipulated elections, and departures from appropriate conduct in the areas of
economic development and social justice. The rows of the matrix rank collective
actions, from forcible direct intervention through economic sanctions,
diplomatic isolation, collective discussion, and no response. The scheme
provides a framework for the study and comparison of particular examples of
intervention - a framework that could guide regional studies and facilitate the
comparison of experiences in different places and times.
Pastor outlines a comprehensive vision of a single collective
security community in which nations and international organizations are all
actors who must jointly maintain the conditions of peaceful and fruitful
international intercourse. The International Monetary Fund puts nations into a
form of economic receivership when they are unable to pay their debts, in order
to permit trade to continue; it might be useful, Pastor proposes, to put
governments into an analogical "political receivership" when they are unable to
maintain a minimum degree of political solvency.
Haas warns against the "slippery slope" created by the acceptance
of a "chain of interaction and causation"' that links "ending famine in a civil
war or preventing genocide" to "protecting human rights, which in turn implies
the need to establish or nurture democracy." He begins by observing that
humanitarian interests and the nongovernmental organizations that serve to
mobilize and express them already transcend sovereignty; they need not
contravene it But interventions based on a new syllogism between global
security concerns, humanitarian interests, human rights, and democracy seem
inherently expansive. Opportunities for intervention are particularly rife in
what might be termed quasi states: states that are created by the patronage of
the LIN and that lack many of the substantive attributes of sovereignty. The
general asymmetry of power - military, economic, technological, even cultural -
between these new states and their patrons creates virtually unlimited
possibilities of multilateral intervention.
Accordingly, for Haas, the feasibility of successful action should
be a central criterion for decisions to intervene: failed efforts are worse
than none, and efforts short of adequate means are certain to fail, especially
those efforts that lack persistence after an initial success. The more complex
the goal, the more violent the means required, the lower the probability of
success. Thus, an intervention against a coup that overthrows a democratic
government, especially in a society with democratic traditions, is more likely
to succeed than one that seeks to impose democracy on a society with little or
no experience of it. Civil society, the prerequisite of democratic government,
is unlikely to be created in the midst of violent conflict, such as that which
forcible intervention provokes. On the other hand, Haas maintains that
intervention for democracy "is justified when each step can be defended
independently as promising to be effective, and when each step is unlikely to
hinder the implementation of simpler and more basic acts of helping to
alleviate local suffering."
From Theory to Practice: Preconditions for the Emergence of a New Norm
Pastor and Haas project and critique a particular vision of the
legal future. Yet it is not dear that any of the various justifications for
intervention that they identify in fact qualify as emerging norms. Inquiry into
the process whereby a norm emerges and ultimately becomes established is the
necessary second component of our study. Here Neta Crawford's case study of how
the norm of decolonization both emerged from and helped shape the
decolonization process is of particular relevance. She focuses on the period
after the Second World War, when the UN played an explicit oversight role in
the process, but also looks back to the experience of the League of Nations
between the wars. It is dear that the legitimacy of colonial rule by Europeans
over Africans and Asians, widely accepted in Europe and North America in the
nineteenth century, had begun to decline by the time of the First World War. By
1945 decolonization was the rising norm; within two decades it was the ruling
one.
This normative change was certainly necessary for the almost
complete dissolution of colonial relationships that has taken place. Yet
Crawford does not see it as sufficient; she argues instead for a more nuanced
account of the interrelationship between ideal and interest. Changes in the
balance of economic advantage in the imperialist system and in the means of
securing it, the growth of nationalism in the colonies and anticolonial
agitation in the metropolis, and military struggle all coincided to enhance the
acceptability and, indeed, the attractiveness - of decolonization. At the same
time, the rise of a norm of decolonization resulted from "a combination of the
effective work of moral entrepreneurs and of the logical extension of arguments
about what it means to be human and who belongs to the community of humans with
full rights."
Crawford's conclusions have a number of implications for the
likelihood of establishing norms of justified intervention. First is the
potential for a transnational moral dialogue stimulated by nongovernmental
organizations pursuing a common agenda. Second is the need for a unified stance
on the part of international organizations. Third, and more broadly, is the
likelihood of a perceived convergence between ideal and interest. In this third
category a primary obstacle is the decolonization experience itself. Crawford
emphasizes the ways in which the decolonization regime buttressed the norms of
nonintervention, a corollary of the newly proclaimed sovereignty of the former
colonies. She and Trachtenberg also emphasize the stigma attached to
intervention: the implication that the state intervened against is not a full
member of the international community. When the intervention is conducted by a
former imperial power against a former colony, the fear of stigmatization is
exacerbated by concern over the reemergence of neocolonial relations.
Virginia Gamba demonstrates the ways in which this attitude still
strongly colors the Third World view of UN-initiated or UN-approved actions in
which the industrialized countries are the moving parties and Third World
countries are the objects of action. She distinguishes between intervention and
collective security. Less-developed nations are wary of the former but are
prepared to consider the use of force in the context of the latter.
Nevertheless, before such collective action is possible, a new dialogue must
emerge between developed and less-developed nations. Like Trachtenberg, Gamba
sees the perpetuation of nineteenth-century attitudes on both sides of a wide
range of current transactions in and through the UN that involve the
industrialized and Third World nations. These attitudes need to be reformed on
both sides; only then can the possibility of universalized norms that
effectively govern international actions be realized.
Preliminary Observations and Questions for Further Research
Our first round of inquiry concludes with the presentation of a
world-historical vision and summarizes the obstacles to achieving such an
outcome. Ernest Gellner takes a step back and presents a provocative schematic
sketch of the underlying social and economic forces shaping the evolutionary
path of societies. He foresees an already well-underway process of convergence
to a universalist, skeptical, hedonistic, consumerist culture organized around
the dominant social value: economic growth. Aggressively nationalist or
fundamentalist societies whose values and behavior challenge the prevailing
consensus Provoke both external and internal conflict, against which the
international community will intervene. Thus, he foresees that Haas's "slippery
slope of intervention" is rather the path to a world order structured enough to
be termed a world government, albeit one of limited powers in the context of a
cantonal or federal system.
Against this vision, and against the deep social, economic, and
political forces that may propel it, is the reality of an existing
international legal regime premised on the traditional norm of nonintervention
and the requirement that a change in that regime be accepted by states more
likely to find themselves intervened against than intervening. The more
immediate necessity of trying to achieve change within this framework poses
five concrete problems and potential solutions.
1. Stretching Legal Categories to the Breaking Point
Damrosch deftly demonstrates the ways in which the current legal
regime is being stretched. Under the UN Charter, a determination by the
Security Council that there has been an act of aggression or a breach of the
peace, or that there exists a threat to the peace, explicitly justifies
collective intervention over the whole spectrum, from sending a representative
of the Secretary-General to discuss the issue with the offending nation(s) to
engaging in the use of force. Until recently, the legitimacy of all
peacekeeping activities was grounded on the consent of the subject nation and
on resolutions of the Security Council or General Assembly, as was the case in
the Congo, Nicaragua, El Salvador, and Cambodia. The cases of Rhodesia, South
Africa, and Iraq involved Security Council enforcement actions based solely on
Security Council resolutions. Yet what is the legal basis for the protection of
Kurds in Iraq against repression by the central government following the
forcible response to Iraqi aggression against Kuwait? Or for first an arms
embargo then various peacemaking, peacekeeping, and relief operations in the
former Yugoslavia in a situation that began as an intrastate conflict and soon
became international with the recognized secession of Croatia and
Bosnia-Herzegovina? Or for military intervention, for humanitarian purposes in
the internal conflicts in Somalia, where no government exists to,, give or
withhold consent?
Trachtenberg would contrast the vastly expanded definition of a
threat to the peace, with renewed concern on the part of the present great
powers - the permanent member of the Security Council and the acknowledged
nuclear-weapons states - with the spread of nuclear weapons and other weapons
of mass destruction. As a realist, he sees that the great powers' concern with
the balance of power is the underlying motive, as it was in the past century.
His emphasis on the contemporaneous persistence of more traditional security
concerns, however, raises the specter of so devaluing the threat-to-peace
categories Chapter VII of the UN Charter that they lose meaning, and hence
legitimacy, for an purpose.
Damrosch contrasts the vitality of the traditional legal
prohibition against unilateral intervention - "improper interference by an
outside power with the territorial integrity or political independence of a
state [by] invasion, intimidation, subversion, or distortion what should be
autonomous internal processes" - with the legitimacy of collective intervention
undertaken within the framework of the UN Charter, when justified by actions
within a state that "call on the conscience of all humanity." What norms,
applied con- cretely through what procedures, can or should legitimate such
collective actions? In addition, the shift from prohibition against unilateral
intervention to the potential delegitimization of collective intervention
implies a shift from prohibition to prescription these norms and procedures
prescribe such interventions or merely permit them? Do establish a duty to
intervene or only a right to intervene?
None of the papers addresses explicitly the legal and political
processes by which decisions to intervene and choices among modes of
intervention are made, either as a matter of historical fact or future
prescription. Decisions on collective action with respect to a particular state
may reflect the subjective interests of a few disproportionately powerful
states rather than the objective judgment of the many less powerful states that
the offending state has violated legal norms. The relative roles of UN member
states, the Security Council as the forum for the interests and views of the
most powerful states (although not only these), and the Secretary-General and
his staff are here in question. To what extent do the Secretary-General and his
staff form a separate center of observation, judgment, and action? To what
extent are they merely the instruments of groups of member states?
Furthermore, what should be the role of regional organizations, and
what process should they follow? Gamba argues forcefully for an enhanced role
for such organizations as fora for communication and consultation, permitting
meaningful participation in the evolution of a global security system. In cases
in which the feared domination of a regional organization by one regional power
undermines the likelihood and effectiveness of regional action, the regional
organization could act in partnership with the UN.
4. Organizational Composition?
Also tied up with these questions are the ways the internal
political processes of the member states, especially the democratic ones, work
with respect to these issues. To what extent do nongovernmental organizations,
as well as unorganized publics, made intensely aware by the media of conflicts
worldwide, bypass the domestic political mechanisms of their own countries and
appeal directly to the UN? Is this path effective? Is it becoming more so?
5. Global Ideological Fission
A final difficult issue is posed by the profound value conflicts
between democratic and nondemocratic states of the UN. At the extreme, consider
the apostles of democracy and free markets, confident that they represent the
necessary and sufficient conditions for global peace and prosperity, versus the
crusading Islamic fundamentalists, equally confident that democracy is but an
instrument by which to reunite mosque and state. Can these two camps possibly
agree on norms of justified intervention? Can the UN (or other international
bodies) act in the face of disagreement? The distribution of military and
economic power favors the first group; the distribution of population may not.
Which criterion should, or will, be decisive?
Conclusion
A norm prohibiting intervention is the flip side of a norm
promoting sovereignty. Sovereignty is the distinctive hallmark of the modem era
in international relations, the system first of states and then of
nation-states ushered in by the Peace of Westphalia. New states continue to
join this system in all regions of the world, anxious to proclaim their
sovereignty and to bar intervention by former imperial powers. At the same
time, however, the sovereignty of even the world's most powerful nations is
constrained in unprecedented ways. The nations of Western Europe have
voluntarily ceded much of their autonomous decision-making capacity to
collective institutions; the nations of Eastern Europe clamor to join them.
Moreover, well beyond the institutions of the European community, national
policy makers recognize their inability to make, or at least to en force,
national economic, social, or environmental policy without collective
consultation and deliberation with other nations and, often, with
nongovernmental actors embedded in transnational society.
As conceptions of sovereignty change, so also do conceptions - and,
indeed, definitions -of intervention. On the other hand, as long as some
conception of sovereignty remains the baseline for participation in the
international system, intervention will retain a negative connotation. In
searching for emerging norms of justified intervention, this study will seek to
trace the path of larger historical forces to establish whether in fact they
underpin a shifting international consensus. New norms governing collective
international action may indeed emerge - but they are likely to survive only as
part of a larger reconceptualization of the bases and purposes of international
society.
Table of Contents
Introductory Note: Emerging Norms of Justified
Intervention
Anne-Marie Slaughter Burley and Carl Kaysen
Intervention in Historical Perspective
Marc Trachtenberg
Decolonization as an International Norm: The Evolution of
Practices, Arguments, and Beliefs
Neta C. Crawford
Beware the Slippery Slope: Notes toward the Definition of
Justifiable Intervention
Ernst B. Haas
Commentary
Abram Chayes
Stanley Hoffmann
Changing Conceptions of Intervention in International Law
Lori Fisler Damrosch
Commentary
Anne-Marie Slaughter Burley
Shibley Telhami
Justified Intervention? A View from the South
Virginia Gamba
Commentary
Sally Falk Moore
Sergey Plekhanov
Forward to the Beginning: Widening the Scope for Global Collective
Action
Robert A. Pastor
Commentary
Elio Gaspari
Richard Rosecrance
Nationalisms and the New World Order
Ernest Gellner
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