NATO missions in Libya have overstepped the bounds of United Nations Security Council Resolution 1973 [GALLO/GETTY]
The Arab Spring (and its troublesome aftermath in Egypt); intervention in Libya; nonintervention in Syria; drone military operations in Pakistan, Yemen, Somalia; the influx of unwanted immigrants and walls of exclusion; and selective applications of international criminal law - all draw into question the most basic of all ideas of world order: the sovereignty of territorial states, and limits to that sovereignty.
Also at issue are the closely related norms of international law prohibiting intervention in the internal affairs of states and affirming the fundamental right of self-determination as an inherent right of all peoples. These rules of order were acknowledged by the United Nations' charter, which prohibited the organisation from intervening in matters "essentially within domestic jurisdiction" and affirmed self-determination.
At the same time, as Ken Booth provocatively pointed out almost 20 years ago, that one of the great failings over the centuries of the Westphalian framework of world order - based on the peace treaties of 1648 which concluded the Thirty Years' War and are treated as establishing the modern European system of territorial states premised on the juridical ideal of sovereign equality - was associated with sovereign prerogatives.
Booth showed that respect for sovereignty had, as a major effect, the providing of a sanctuary for the commission of what he called "human wrongs", that is, non-accountable and cruel abuses of persons subject to territorial authority. The great wakeup experience, at least rhetorically for the liberal West, was the non-response at the international level to the lethal internal persecutions in Nazi Germany during the 1930s. The responses after World War II, mainly expressed via international law, consisted of the Nuremberg and Tokyo trials of surviving German and Japanese leaders, the adoption of the Genocide Convention, and the negotiation and approval of the Universal Declaration of Human Rights (UDHR).
Double standards on human rights
These were well-intentioned gestures of global responsibility that were suspicious when adopted: Nuremberg and Tokyo standards of individual accountability for crimes were only imposed by the war's victors upon its losers, exempting from accountability those responsible for the terror bombings of German and Japanese cities and the atomic bombings of Hiroshima and Nagasaki; the Genocide Convention included no mechanisms for enforcement; the UDHR was only endorsed in the form of a non-binding "declaration" - a signal of the lack of intention to seek enforcement; and the legitimacy of the colonial structures of foreign rule was not questioned until effectively challenged by populist uprisings throughout the formerly colonised world.
In passing, it should be observed that the West never respected the sovereign rights of the peoples of the non-West until it was forced to do so - whether it was European colonialism that extended its reach throughout Africa and Asia, or the assertions of US hegemony over Latin America beneath the banner of the Monroe Doctrine.
'The world has moved forward in pursuit of global justice. Or has it? Human rights have matured ... but are too often subordinated to the realities of geopolitics'
This was accompanied by a refusal to extend the Westphalian writ of mutual respect for sovereign rights beyond the Euro-American regional domain until the imperial order began to crumble after World War I. First, the US' "Good Neighbour" policy seemed to reaffirm sovereignty for Latin America, but only within limits set by Washington, as Cold War-era covert and overt interventions later confirmed. Secondly, following World War II, a variety of nationalist movements and wars of national liberation broke the back of European colonialism as an acceptable political arrangement, and the idea of sovereign states was globalised formally, although not geopolitically.
But the world has moved forward in pursuit of global justice. Or has it? On the one side, human rights have matured beyond all expectations, and to some degree exert a general moral and political force subversive of national sovereignty by validating a higher law that exists above and beyond the legal order of the state.
This subversive thrust is reinforced by the development and institutionalisation of international criminal law; enforcement of accountability claims against such pariah leaders as Slobodan Milosevic and Saddam Hussein, as well as lesser tyrants; the establishment of the International Criminal Court; and arrest warrants for the likes of Sudanese president Omar al Bashir and Libyan leader Muammar Gaddafi.
And, perhaps most significantly, the rise of respected international NGOs has created a somewhat less selective pressure for implementation of human rights norms, but one still weighted towards political and civil rights given priority in the liberal democracies of the global north, and against the economic, social, cultural, and collective rights of primary importance to developing societies in the global south.
And yet, these moves towards what might be called "humanitarian globalisation" at the expense of sovereignty are too often subordinated to the realities of geopolitics. That is, the application of legal standards and the assertion of interventionary claims remain one-sided: the West against the rest, the North against the South, the strong against the weak. Even the supposedly globally-oriented human rights NGOs devote most of their attention to non-West violations when it comes to alleged infractions of international criminal law.
Selective law and morality tarnish the integrity of law and morality that presuppose fidelity to principles of equality and reciprocity. This makes challenges to sovereignty suspect, but are they also worthless, or, as some argue, worse than worthless?
Liberal versus critical perspectives
There are two contradictory modes of response. The liberal answer is to insist that progress in society almost always occurs incrementally, and doing what is possible politically is better than throwing up one's hands and doing nothing. So long as targets of intervention and indicted leaders are given fair trials, and are convicted on the basis of the weight of the evidence, such results should be affirmed as demonstrating an expanding global rule of law, and serving the interests of global justice. The fact that the principal states intervene at will and enjoy impunity in relation to international criminal law remains a feature of world politics, and is even given constitutional status at the UN in the form of the veto power granted to the five permanent members of the Security Council.
The critical response argues that such double standards contaminate law, and make it just one more instrument of power. The authority of law depends on its linkage to justice, not power. To enforce prohibitions on the use of aggressive force or the commission of crimes of state only on the weak and those on the losing side of war is implicitly to grant the moral and legal high ground to the richest and most dangerous political actors. It provides a humanitarian disguise for abusive behaviour in a post-colonial global setting. It also provides pretexts for disregarding the dynamics of self-determination, which is the lynchpin of a system of sovereign states detached from the hierarchies of geopolitics.
In a world beset by contradictions, there are only hard choices. There seem to be three kinds of situations that somewhat transcend this tension between liberal and critical perspectives:
- a severe natural disaster that cannot be addressed by national capabilities, such as the Asian tsunami of 2004 or the Haiti earthquake of 2010;
- acute or imminent genocide as in Rwanda in 1994, where a small international effort could have averted the deaths of hundreds of thousands; and
- a mandate to act issued by the UN Security Council, as is currently the case in Libya.
In each instance, there are risks and unanticipated effects. Especially worrisome is the recent pattern of authorisations of force issued by the Security Council. In the 1991 Gulf War, to some extent the sanctions currently imposed on Iran, and now the Libyan intervention, the mandate to use force has been stretched beyond the limits specified in the language of authorisation.
In the Libyan case, Security Council Resolution 1973 was built around the emergency protection of civilians, but converted operationally and openly by NATO into a mandate to achieve regime change in Tripoli by dislodging the Gaddafi leadership. Nothing was done to reassert UN control over the scope of authority granted.
Be wary of hard power
What can be done? We have little choice but to cope as best we can with these contradictions, especially when it comes to uses of force on behalf of what is labelled "humanitarian intervention" or "the right to protect". I would propose two ways to turn the abundance of information into reliable knowledge, hopefully thereby engendering greater wisdom with respect to global policy and decision-making.
First, acknowledge the full range of realities in international life, including the absence of equal protection of the law: that is, judging claims and deciding on responses with eyes wide open, and with a reluctance to act - except in extreme cases.
Secondly, presume strongly against reliance on hard-power resolutions of conflict situations, both because the costs almost always exceed the estimates of those advocating intervention, and because, during the past 60 years, military power has rarely been able to shape political outcomes in ways that are, on balance, beneficial for the society on whose behalf the intervention was supposedly taking place.
'Challenges to sovereignty should take the form of soft-power tactics of empathy'
When it comes to severe human rights abuses, somewhat analogous considerations apply. In almost every instance, deference to internal dynamics seems preferable to intervention from above, while soft-power interventions from below are to be encouraged as expressions of emergent global democracy. Victimisation should not be insulated by notions of sovereignty, but nor should self-determination be jeopardised by the hypocritical moral pretensions of hegemonic states. This is admittedly a delicate balance, but the alternative is to opt for extremes of passivity or activism.
In effect, to the extent possible, challenges to sovereignty should take the form of soft-power tactics of empathy as identities of persons around the globe become as globalised (and localised) as markets. The recent furore aroused by Freedom Flotilla II is illustrative of an emerging tension between the role of sovereign states in defining the contours of law and morality and that of popular forces mobilised on behalf of those unjustly suffering and neglected by the world of states.
Ideally, the UN should act as a mediating arbiter, but the UN remains a membership organisation for sovereign states. It is generally hostile to the claims of global civil society, however well-founded. One attractive proposal to endow the UN with a more robust mediating role is to establish some form of global parliament, perhaps building on the experience of the European parliament that has evolved in authority and political weight over the decades.
Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Research Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008) and Achieving Human Rights (Routledge 2009).
He is Chair of the Board, Nuclear Age Peace Foundation and Director, Global Climate Change Project, UCSB. He is currently serving the fourth year of a six year term as a United Nations Special Rapporteur on human rights in the Occupied Palestinian Territories.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.