POLITIKON The IAPSS Journal Issue 8, September 2004 International Association for Political Science Students
Editorial Board Doina Tănase Chief Editor, President of the Association of Political Science Students, Bucharest, Romania Ioana Cismaş Vice Chief Editor, Member of the IAPSS Executive Committee 2004 Iulia Călin Sub-editor, Projects Departement Coordinator, Association of Political Science Students, Bucharest, Romania Adrian Gabriel Moşneag Sub-editor, Secretary General of the Association of Political Science Students, Bucharest, Romania Mihai-Octavian Simionicã Sub-editor, Member of the Board, Association of Political Science Students, Bucharest, Romania 2
Contents POLITICAL SCIENCE STUDENT COMMUNITY WHERE TO? 4 TOWARD HYPER-CRITICAL DEVELOPMENT ALTERNATIVES 6 Dr Prasenjit Maiti HUMANITARIAN INTERVENTION AND THE CHANGING CONCEPTS OF SOVEREIGNTY 13 Dominika Švarc GLOBALISATION AS A HIDDEN STIMULUS OF THE GROWTH OF EUROPEAN TERRITORIAL IDENTITY 25 Jan Sucháček THE EVOLUTION OF THE PARTY SYSTEM AND CLEAV- AGES IN POST-COMMUNIST HUNGARY 37 Crina Sămărghiţan,Victor Cioară, Sergiu Gherghina, Adrian Muică RAPE AND CONSTRUCTIONS OF MASCULINITY AND FEMININITY 56 Bettina Engels 3
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Political Science Student Community Where to? The cooperation among political science students, on an international level, began, formally, in 1998 when The International Association for Political Science Students (IAPSS) was established in Leiden, The Netherlands. IAPSS has succeeded in six years to bring together almost ten thousand political science students and to organize several international and regional events which can be seen as the basis for a future development of the political science student community. IAPSS, according to its mission, will strive to further develop opportunities for the full actualization of political science students. This can be seen both as contributing to the development of political science education, understood in area-specific terms and as advancing a basis for intercultural and intercontinental - regional - lingual understanding of political science and political science education. A very important step forward is the development of the Permanent Seat of IAPSS in Ljubljana, Slovenia. Coming more as a necessity, the establishment of this Permanent Seat will contribute greatly not only to the development of international interactions among political science students, but also to the development of local communities of political science students and as well to the development of academic projects which shall soon become one of the main pillars of activity within IAPSS. Considering the academic area of activity in IAPSS there are new developments which require the active involvement of political science students. I will start by referring to POLITIKON (the most successful IAPSS project) which will start to function in a new setting with October 2004 and shall be developed as to be widely accessible. Another important project is the development of academic working groups. Political science students are invited to initiate and develop such working groups which have an important role in establishing academic contacts and facilitate common academic work. These working groups are important due to their triple role - establishing connections among political science students working on similar 5
academic subjects, developing common research projects in international teams, and gathering subject-related academic resources. Noticing the importance of academic communication, starting with this year, IAPSS will also organize IAPSS Annual Academic Conferences. The purpose of these conferences is to provide political science students with the opportunity to meet colleagues from all over the world working in the same academic field and, primarily, to make more visible the academic works of political science students. Finally I would like to address thanks to all those who have supported IAPSS in its development so far and especially to the political science students and alumni who have made it possible for this association to exist and develop! I would also like to address encouragements to the political science students to take an active role in the development of their community in ways they may find personally meaniningful! Ştefan Cibian Chairperson - International Association for Political Science Students 6
Toward Hyper-Critical Development Alternatives A Study in Semiotics Dr Prasenjit Maiti Dr Prasenjit Maiti is a political sociologist by training. He started working in the development sector since 2003 after teaching and researching at the Post-Graduate and MPhil Levels of the University of Burdwan (West Bengal) during 1995-2002 in a full-time position as Lecturer.Currently he is an NGO representative and member of the Resettlement Plan and Implementation Working Group for the Kolkata Environmental Improvement Project. ABSTRACT: The idea of human freedom is essentially rooted in the concept of human development, according to Noble Laureate Amartya Sen's "Development as Freedom" thesis [that outlines an entitlement to capacity-building process]. And the idea of human progress is a construct that is designed around the axis of freedom. What is freedom? Is it only lack of societal constraint, withdrawal of discipline and punish, willing suspension of the panoptic Super Ego that they address as the "mainstream"? Or is freedom a concept much more fundamental, to be read into the texts of Rabindranath Tagore, Roman Rolland or Walden? Sociologists claim that civilization is what we are and culture is merely an arrangement of artifacts that we happen to use during the course of our politics everyday life. Civilization, however, is also a system of values that is handed down generations as a movement of socialization that laymen identify as "progress". The Progress Vs Development How can progress be distinguished from "development", if at all? A most prominent item on today's humanitarian global agenda, apart from mantras like good governance, social capital, neo-liberal communitarianism, grassroots empowerment, civil societal capacity-building 66 and gender sensitization, is certainly the notion of sustain- 66 The contemporary view of capacity-building goes beyond the conventional perception of training. The central concerns of environmental management - to manage change, to resolve conflict, to manage institutional pluralism, to enhance coordination, to foster communication, and to ensure that data and information are shared - require a broad and holistic view of capacity development. This definition covers both institutional and community-based capacity-building. http://nrm.massey.ac.nz/changelinks/capacity.ht ml able development 67. This has become almost a catchword of sorts in the Third World, decolonized state nations that are more or less grappling to muster a political system around pluralistic identities of nationhood enmeshed in ethnicity, language, religion, region and mutual distrust. It is almost as if "soft states" are hanging loose and can only be brought back on to the fast track of development by way of external intervention and advocacy on the past of the Eurocentric West. Development, it may be appreciated at this 67 Almost every aspect of sustainable development will be affected by the quality of civil society, political participation and decision-making, and responsible and reliable governance. Because good governance is the fundamental requirement for progress and sustainability, furthering it is at the core of U.S. strategy to foster sustainable development. http://usembassy.state.gov/tokyo/wwwhgl0469. html
point, is not anything extrinsic like politics imposed from the above without any regard whatsoever to the endusers of limited political resources. Actors who are supposed to interface with their very own institutions are nearly always better comfortable if left alone with the material conditions of daily life that breed organic ethos of community existence. This is where the colonial masters went wrong in Asia, Africa and South America when they bled the colonies white and left behind a legacy of comprador bourgeois and crony capitalism that, in turn, fostered a repressive state apparatus and a perverted anti-people bureaucratic managerial state system that was not only anti-people but was also occasionally anti-progress. Richard Cobden 68 discussed about this mechanistic attitude of the political élite [in capitalist systems] and party leadership [in socialist societies] that are smug in the cocoon of their mistaken convictions that people at the top echelons of power, authority and 68 Cobden, Richard (1804-65). British economist and statesman, known as the Apostle of Free Trade. In Parliament Cobden favored a laissez-faire economic philosophy, that is, minimum interference of government in business. He opposed factory reforms and trade unions and objected to the intervention of government in the affairs of foreign nations. His opposition to British foreign policy cost him his seat in Parliament in 1857. He was so respected by his political opponents; however, that Prime Minister Palmerston offered Cobden the post of president of the Board of Trade in his cabinet in 1859. Cobden rejected the offer, but remained politically active. The following year he negotiated an Anglo-French commercial treaty. His last important political action was to support the Union in the American Civil War, at a time when other British leaders were hesitant. He died in London on April 12, 1865. http://encarta.msn.com/encnet/refpages/refarticl e.aspx?refid=761557174 influence have necessarily a working knowledge of "the greatest good of the greatest number". This is not a utilitarian or even a welfarist state approach - it is actually self-defeating as amply evidenced in the erstwhile USSR where an insane arms and space race with the United States [incidentally the only country in the entire world to have actually materially gained from the First and Second World Wars with minimum military casualties] led the once powerful communist country to a more or less incredible situation of mind-boggling bankruptcy. Military hardware and nukes were being manufactured at the cost of basic consumer requirements like bread, potatoes and vodka, following Stalin's rhetoric of an entire generation making sacrifices [read being purged if found to be politically incorrect] for the cause of a better Russia of the future. Moscow's huge and sprawling department store GUM was always nearly empty while the party's top brass were running around in their imported limousines, shopping in dollar shops selling Swiss chocolates and watches, Scotch whisky, French champagne and perfumes. Add rampant corruption and repression to accept a second-hand political ideology not originating from the ground realities of people and you have ideal recipes for killing fields like the infamous Prague Spring. Public Action Enterprises We are reminded of Professor Mohammad Yunus of Bangladesh in this respect - the magician of the Grameen Bank ["rural bank"] microcredit revolution who even hugely impressed Hilary Rodham Clinton. What Professor Yunus still does is amazingly simple - he organizes self-help groups in 8
the manner of cooperatives and tries to make them economically self-reliant in areas as humble as poultry, weaving, dairy and even small-scale production. But when such cottage industries are linked ["forward and backward integration"] in the larger context of market forces they become formidable in their control of the overall agrarian and even the urban economy. Peasant women in Bangladesh carry mobile telephones to communicate with distant markets, distributors and dealers! This may sound incredible but it is true nevertheless, proving the validity of Cobden's observation. Operation Flood in Anand [Gujarat] and the Lijjat and Kissan enterprises are other such brilliant instances of people working toward their common good [based on innovative techniques like outsourcing of manpower and material resources, subcontracting or leasing of plant and machinery, breaking down the production process to delimit financial risk liability ventures somewhat akin to Adam Smith's exposition of the division of labor dynamics] without any outside intervention whatsoever. One must remember that neither India nor Bangladesh tends to practise authoritarian régime maintenance. What was possible once in Beijing's Tiananmen Square when the People's Liberation Army crushed proreform students under tanks and armored carriers is unimaginable in either India or Bangladesh [that secured its liberation in 1971 by way of Indian military cooperation]. So democracy is an essential requirement if "the progress of freedom" is to continue unabated. Voice of the People By democracy we ordinarily mean popular authority or rule. As made popular by Jean Jacques Rousseau, one of the ideologues of the French Revolution [that effectively altered the course of European history by beginning the disintegration process of the medieval and feudalistic Age of Empires], the voice of God is heard in the voice of the People. This was a far cry from the autocratic self-styled pronouncement of French Emperor Louis XIV - "I am the State". It was no wonder that Louis XVI's wife Marie Antoinette [later sentenced to die to rather unceremoniously at the guillotine] had once expressed her wonder in such a naive fashion on hearing about the simmering discontent among the Parisian mob standing in endless queues or bread lines and more often than not starting violent riots among themselves - "If they cannot eat bread why don't they eat cake!" This vulgar ignorance of the ruled on the part of their rulers is rather inimical to democracy. But we must remember that democracy as dynamic capacity-building agency in the post 9/11 world has all of a sudden underscored its long-ignored extrinsic quality. Democracy is not really insular, stretching from the East Coast to the West Coast of the US. If the notion of external sovereignty has suffered quite extensively since the height of the Cold War when the world was almost vertically divided into the NATO and Warsaw Pact countries [save the NAM states being led by Nehru, Nasser and Tito], the idea of external democracy has gained much popular and diplomatic acceptance. Simply put, powerful nations can no longer ignore internal human rights or 9
civil rights agendas vis-à-vis world public opinion. But this is what the US is consistently trying to follow as its most shortsighted foreign policy since the Malta Summit Conference when President George Bush Senior and CPSU General Secretary Mikhail Gorbachev officially declared the end of the Cold War, a historic event that even prompted Francis Fukuyama to write a banal work on the end of history and the last man. Since the days of its Nineteenth Century isolationist Munroe Doctrine the US has put up apparently impregnable walls around itself that couldn't even be dismantled during the Marshall Plan for the Reconstruction of Europe after the Second World War or establishment of first the League of Nations [as an initiative of President Woodrow Wilson's historic Atlantic Charter] and then the UNO, the International Monetary Fund, World Bank and now the omnipotent World Trade Organization that apparently dictates the movements of a new specter of the new millennium, namely Globalization. The US foreign policy has always been designed on lines of "muddle and meddle" - Vietnam, Korea, Bay of Pigs, Irangate, Afghanistan and now Iraq. The country boasts of democracy and swears by it, boiling with righteous motivation to export Yankee democracy around the underdeveloped world, but has, however, classified the JFK assassination archives for no apparent reason whatsoever. Clandestine covert operations, the strategic defense initiative [Star Wars], research in biological and chemical weapons - you name it and you would find the dirty trick invariably up America's [read the CIA and FBI's] sleeves. In fact, it is the only nation to date that has used atomic weapons during a war, destroying Hiroshima and Nagasaki in the process to avenge the Pearl Harbor attack and crippling generations of Japanese children long after the holocaust as a result of toxic radioactive radiation carried forward genetically by succeeding generations. Since the Gulf War fought by Senior Bush as the much-hyped Operation Desert Storm so graphically shown by CNN across millions of idiot boxes around the world, nobody knows exactly how many innocent Iraqi children have died from malnutrition, disease and hunger due to the USimposed and UNO-condoned sanctions against Iraq. The US condemns Osama bin Laden but should actively engage in soul-searching regarding its own virulent international terrorist status in our contemporary unipolar world where might is right in a Hobbesian state of affairs where human life, property and security are all indeed "solitary, poor, nasty, brutish, short". The US, in brief, should radically reorient its foreign policy to address the dignity of human life and internal sovereignty of nation states around the world. It is a most regrettable fact that civil servants in the Third World more often than not act as if they are the masters of the people rather than being their servants, which, in constitutional terms, they actually are. This perverted phenomenon is a spillover from the colonial days when the questionable legacy of the "steel-frame of the administration" was passed down generations of bureaucrats. They were brainwashed at the administrative training college in Haileybury, England by the East India Company na- 10
bobs that they were about to return to India - the Brightest Jewel in the Crown - to assist the British in their self-appointed task euphemistically called the White Man's Burden. This was nothing else but a sustained exercise over a couple of centuries to systematically fleece this once-rich country and its defenseless people like nobody's business. This "drain of wealth" resulted in the man-made Famines of 1770 and 1943 when sheer hunger provoked cannibalism and human tragedies like selling off one's wives and daughters into prostitution. Negotiating Globalization Contemporary state systems guided by the dynamics of globalization are like so many Januses - the phenomenon assumes a most robust character in the developed North but an almost impotent identity in the developing or still underdeveloped South. So globalization necessitates a dialog between the rich and the poor outside its essentialist assumptions of an uneven power discourse as conditions of Good Governance and Structural Adjustment Programs 69 benchmark most Third World postcolonial democracies today 70. While there are contentions that aggressive market forces make it difficult for welfarist governments to pro- 69 See Gary, Craig and Marjorie Mayo (eds) (1995). Community Empowerment: A Reader in Participation and Development. London / New Jersey: Zed Books 70 See Ray, Aswini K (1996). "Democratic Rights in a Post-Colonial Democracy". Agora Project Working Papers (Uppsala: The University of Uppsala). See also Ray (1989). "Towards the Concept of a Post-Colonial Democracy: A Schematic View". Zoya Hasan et al (eds), The State, Political Processes and Identity: Reflections on Modern India. New Delhi: Sage tect their citizens from transnational actors that are as elusive as their hot money, there are also counterarguments 71 that institutions like the International Monetary Fund or the World Trade Organization actually safeguard citizens from the administrative limitations of their respective national governments. There appears to be a consensus, however, that powerful markets tend to undermine political élites at home. Global Village John Echeverri-Gent 72 has pointed out that if globalization, on the one hand, facilitates decentralization then, on the other; it also helps develop pockets of dynamic Free Trade Areas in large developing countries like China and India by reorganizing their economic geography, Foreign Direct Investment and global commodity chains. This process, however, creates large hinterlands of economic backwardness and entrenches economic inequality within the developing south. Globalization, therefore, intensifies regional disparities in the Third World. John Rapley has found that Structural Adjustment Programs have varied widely in the results they have yielded. While Latin America has partially benefited from structural adjustment, Africa has not. Rapley has also argued that Rolling Back the State - that is less government as an imperative of contempo- 71 See Keohane, Robert O (Spring 1998). "International Institutions: Can Interdependence Work?" Foreign Policy 72 See Echeverri-Gent, John (July 1997). "Governance in a Globalizing World: Deconstructing Decentralization in India, China and the United States." Charlottesville: Department of Government and Foreign Affairs, University of Virginia (mimeo) 11
rary globalization - does not always lead to enhanced economic growth. Globalization, therefore, would appear to be an open-ended journey toward a globalized world order whose weightless economy 73 may be described as one that defies both national and international borders so far as economic transactions are concerned. This is a situation where freight charges are nil and trade / tariff barriers would disappear. Such a pilgrim's progress, however, is nothing new. Technological innovations during the past five centuries have steadily helped integrate the global community into an emergent global civil society. Transatlantic communications have developed from sailing boats to steamships, to the telegraph, the telephone, the commercial aircraft and now the Internet where even nationalism as a conventional political ideology has been reduced to "banal nationalism" 74. State and Civil Society Liberal democratic régimes like India or even the US can only be politically successful deliver the common good and thereby continue in power in a more stable [read pro-people] manner if they are able to correctly read the obtainable ground realities and problems thereof. These problems are more or less popular in nature, and have a propensity to develop into discontent of the ruled actors against their ruling institutions. So the actors in power have to continuously shuffle and delicately balance priorities of human development, well-being and 73 See Huws, Ursula (1999). "Material World: The Myth of the Weightless Economy". Leo Pantich and Colin Leys (eds). Socialist Register. London: Merlin 74 See Billig, Michael (1995). Banal Nationalism. London: Sage accessible freedoms like the everimportant agenda of human rights and civil liberties, a responsive and responsible administrative machinery, transparency at all levels of public expenditures and domestic and international peacekeeping projects rather than playing mutually harmful "spy versus spy" games. Eminent political scientist Subrata K. Mitra has quite rightly cautioned that "If the wielders of power concede the point to those who challenge established values and norms, they risk losing their legitimacy. On the other hand, the failure to give satisfaction to the discontented might deepen their sense of outrage and alienation which can further reduce their legitimacy." Powers-that-be will do well to continually redress grievances of political actors at the grassroots in a political manner by establishing and ably handling pro-people institutions. Only then organic identification would bind actors with institutions - only then the incipient involvement noticed at the level of "actors and institutions" would, arguably enough, transcend itself to the level of "actors in institutions", consolidating both the level and the quality of progress of freedom in the process. Fear of Freedom? So the question we are left with while winding up is: do we prefer freedom backed up by minimum government or would we be merely satisfied with sobriety that is imposed on our lives and liberty by the dictates of high politics from the above. It is amply clear by the beginning of a new millennium already imperiled by the grim possibility of a nuclear war that civilized human beings organized as systems of politics across porous international 12
borders can no longer afford to unquestioningly follow the policy prescriptions of their domestic governments, foreign offices and state departments. More intense people-topeople contacts should be sustained on long-term basis as such transnational networks can better work toward the so-called Track Two diplomacy between intellectuals and academics, social activists, policy analysts, development consultants and the common people 75. It is the unknown citizen who should really be brought back into primary focus by Rolling Back the State 76 - nowhere men and women like you and me should be constituted as indices of basic empowerment, freedom and development. Yet another fundamental war should be waged against hunger, poverty and illiteracy - based on endurable peace, better quality of education for all and a higher quality of material and ethical well-being in general. This sounds like a grand Utopia all right but even stranger events did happen during the course of human civilization and progress. 75 See Maiti, Prasenjit (2001). "A Human Ecological Analysis of the Narmada Bachao Andolan". Electronic Green Journal. Idaho: University of Idaho Library. This paper written in support of the protracted Save the Narmada Movement in India indicates how the government, its insensitive bureaucracy and repressive system of police administration and even the judiciary can actually defeat - albeit temporarily - popular aims and aspirations. The Government of India has of late decided to link up all the major rivers of the country so that river water from the Gangetic Basin of North India can flow into the comparatively arid regions of South India and facilitate both irrigation and hydroelectricity generation. However, experts are convinced that this move would not only considerably dry up the already reduced water volume of the Ganges [as a result of the water sharing treaty with Bangladesh across the Farakka Barrage in West Bengal] but would also result in annual floods and siltification of the different river basins of South India as well. The Supreme Court of India - the country's apex federal court - has already had set up a Water Disputes Tribunal to settle disputes and resolve bitter conflicts between states like Tamil Nadu and Karnataka in South India over the contentious issue of sharing water of the River Cauvery on a mutual basis as this river flows across both these states. 76 See McGrew, A. (1992). "Globalization". Stuart Hall et al (eds). Modernity and Its Futures. Cambridge: Cambridge University Press. See also Slater, David (1996). "Other Contexts of the Global: A Critical Geopolitics of North South Relations". Elenore Kofman and Gillian Youngs (eds). Globalization: Theory and Practice. London: Pinter 13
Humanitarian Intervention and the Changing Concepts of Sovereignty Dominika Švarc Dominika Švarc has graduated from Faculty of Law Ljubljana with the title LL.B..She has been a student of MSc Political Science at the American and World Studies program at the Faculty of Social Sciences Ljubljana and she is currently a PhD candidate at the same Faculty and a LL.M. candidate at the London School of Economics and Political Science. She has also been working as an independent legal advisor and researcher for the European Law Institute in Ljubljana and as an independent researcher for the South-European Comparative Law Institute. ABSTRACT: U.N. Secretary General Kofi Annan recently observed that "state sovereignty, in its most basic sense, is being redefined... by the forces of globalisation and international cooperation." The article deals with the question of how much this is an accurate observation in the context of humanitarian intervention. Within the theories of classical international law, the principle of nonintervention involves the prohibition to intervene in the internal affairs of a sovereign State. Even though there have always existed exemptions to this principle, there was never an exemption of humanitarian intervention mentioned, neither in the UN Charter or any other international legal instrument, nor in the customary law. In the article the possibility of new international legal norms evolving in this field is discussed, to justify intervention in the name of protecting fundamental human rights that are today one of the leading concepts of international legal order, tightly connected to the protection of international peace and security in a highly interdependent international community. To clarify the concept, some basic elements and dimensions of humanitarian intervention are outlined, together with some possible features of the future development of the humanitarian intervention concept. The aim of the article is to discover, what is, both in the legal sense and in practice, the relationship between the sovereignty of states and their responsibility to fulfil their obligations under the international law, including the obligation to respect and protect human life and dignity, as well as other fundamental human rights. The contemporary political discourse often labels sovereignty as an emptied, irrelevant and sometimes even a disturbing category. For the international lawyer, these statements are unbearable and deserve a strong rejection. International law has emerged as the law of sovereign States. It has certainly never praised it as an absolute, nor a fundamental category. However, the concept of sovereignty has always been central to the history of international law and international relations. Today, as even the UN Secretary General Kofi Annan has observed, "state sovereignty, in its most basic sense, is being redefined... by the forces of globalisation and international cooperation". To discover if this is a truly accurate observation, it is fundamental that one understands the relevance of this concept in a rapidly changing context of the modern international community. A critical approach to the con-
temporary discussion of the very concept of sovereignty, usually takes one of the two fundamental positions. The first approach considers international law as an apology of the State practice, whilst the other understands it as something normatively utopian. The apologetic approach should clearly be avoided, but at the same time, there might as well be too much normativism. International law was shaped by history and in this course of historical evolution; the sovereignty itself has recently faced at least two major challenges the issue of international criminal jurisdiction and the problem of non-intervention. This article tends to deal with the latter, by discussing the nature and future of humanitarian intervention. Within the theories of classical international law, the principle of nonintervention involves the prohibition to intervene in the internal affairs of a sovereign state. Nevertheless, there have always existed the exemptions to this prohibition. The international legal doctrine distinguished between the exemptions that are in themselves the law, and the exemptions, that are legally allowed for. The emergence of national states in the first twenty-five years of the UN has changed the course of these discussions. The 1970 Friendly Relations Declaration 77 clearly considers any intervention a breach of international law. The UN Security Council is the only competent body to authorise the use of force in cases when international peace and 77 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the United Nations Charter (Friendly Relations Declaration), GA. Res. 2625 (XXV), U.N. Doc. A/8018 (1970) security are endangered or breached. Is this formulation outdated? At the time, it seemed that the development will strengthen the concept of sovereignty and the principle of nonintervention, turning it into an absolute imperative norm (ius cogens) of international law. However, the expectations did not quite turn out that way. A number of international legal experts believe, that international practice, or international customary law has already amended the written law of non-intervention, specifically through the increasing resort to humanitarian intervention 78. This principle was in general a valid reason for intervention in the 19th Century. It was not deemed wrong, at least not from the legal point of view, to use force by a state or a group of states in another country for the protection of some ethnic or religious community. However, this is mostly indifferent from the point of view of the present dilemma, since back then there were no international legal norms prohibiting the waging of war. Thus, it did not really matter how an armed intervention was justified. In the 20th Century package of international legal norms, expressly and absolutely prohibiting the use of force or the threat to use force in international relation, humanitarian intervention is by no means mentioned as an exception to that rule. Interestingly enough, even those states that used force for similar aims did not refer to their military operations as humanitarian intervention. Many realised only later, after the Kosovo crisis, that there had been 78 See e.g. Thürer, Daniel. 2000. Der Kosovo- Konflikt im Lichte des Völkerrechts: Von drei echten und scheinbaren Dilemmata. Archiv des Völkerrechts, 38(1). 15
other humanitarian interventions carried out before. At the beginning of the 21st Century, the positions are melting and the Security Council has itself contributed a great deal to the changing notions, by its actions. The cases of Somalia, Haiti, Rwanda and Albania provide examples of humanitarian intervention, though they were not called so at the time. We can thus observe that at the beginning of the 21st Century, the positions are melting and the UN Security Council has itself contributed a great deal to the changing notions, by its actions. In case of Somalia (1992) and Haiti (1993) the Security Council authorised intervention in cases not so clearly involving a threat to or violation of international peace, nor were there any acts of aggression recognised. Somalia was facing a blast of a vast humanitarian crisis, but the Security Council itself has never argumented its decision on the matter, nor revealed the dimensions and elements that were threatening international peace in the particular case. It only provided for an ethical definition of "what by definition constitutes threat to international peace". In Haiti, the government was violently overthrown and that could consequently cause mass emigrations and flooding of refugees. Nevertheless, does the humanitarian crisis in itself constitute a threat to international peace? Couldn't it be that the Security Council thus opened a path for the States to intervene as they please in situations they deem similar and in which the Security Council refused / fails to react? On the other hand, should we maybe allow such developments to take place in the name of global security? Can security concerns override traditional notions of sovereignty? How do we reconcile new doctrines, such as the legitimate use of pre-emptive military force and regime change, which are couched in terms of democracy, security, and sovereignty in the modern international discourse? The questions raised could be merged into two basic dimensions of the attempted refurbishment of sovereignty concepts. Firstly, what are the criteria that could and/or should stimulate intervention against a sovereign state, i.e., what are the moral, legal, security, and humanitarian bases of intervention? Secondly, who in the internationally community decides when these criteria have been met, when a certain threshold of behaviour has been passed that justifies intervention in the sovereign affairs of a nation state? Added to that might be another sub-question of maybe even greater importance who is than to intervene? Are There New Norms of International Law Evolving? International law rests on two legs. Codified law as represented by the UN Charter enshrines the principles of sovereignty and non-interference in the domestic affairs of a state, while customary law increasingly emphasizes the protection of human rights and the safety and well-being of the individual. Looking back at the Kosovo case, a spirited debate regarding the legality of the NATO action has not yet reached a conclusion. One view holds that, as there was no Security Council approval for NATO s use of force, the intervention was illegal according to black letter law. A contrary viewpoint out that Yugoslav violation of previous Security Council resolutions and a clear pattern of widespread human rights violations 16
did, in the end, provides sufficient justification for the NATO action. When looking to the future, one must also consider the evolutionary nature of international law, of working to shape international law to help build a more peaceful global society. However, before we go forth with the discussion about the basic parameters of humanitarian intervention in the contemporary security and sovereignty context, the observation must be made, that stricto sensu, the principle of humanitarian intervention has not yet become and maybe even cannot become part of new customary law for several reasons. However dynamic the interpretation of legal norms may be, the general prohibition of the use of force is considered a peremptory international legal norm (ius cogens) in both written law (the UN Charter) and customary law. Given its universal and absolute nature, it can only be changed by the international community as a whole (represented by the UN, not other institutions, such as NATO). That is to say, as long as the UN does not change more than halfcentury old international legal order, others may not change it either. The second reason is that an intervention, whose executors do not refer to the principle of humanitarian intervention, may not establish a new customary law. Regarding Kosovo, the NATO politicians did indeed speak about protecting human rights at stake, but none of them explicitly mentioned humanitarian intervention as the legal basis for intervention. This is strongly connected to the third reason, which is the lack of the so called opinio iuris, that is, the firm and certain belief of state that by their behaviour they wish to establish a new norm of customary law, or more legalistically said, that they clearly believe they act the way they do out of some legal (not merely moral) obligation. The states involved in the recent cases of intervention did not recognise the emergence of a new practice and, consequently, of a general norm of customary law. Finally, as long as some states executing intervention say that their practice establishes customary law while other opposes this practice, a new customary legal norm cannot come into being. In the before mentioned cases of Haiti, Somalia, Rwanda and Albania, foreign forces were acting under explicit authorisation by the UN Security Council, and intervention in each case was thus lawful under international law. On the other hand, at the time of the Kosovo crisis, Moscow and Beijing were no longer willing to give their blessing to draft resolutions that would have authorised the use of force. Consequently, NATO acted without authorisation. There is no "third" way, once one or more permanent members of the Security Council have rejected the authorisation by the UN SC. The Changing Concept of Humanitarian Intervention The recent international legal order as it was shown does not recognise the legality of military intervention even in case of genocide or ethnic cleansing. Thus, it would not allow an intervention to defend human rights either. There is no provision in the UN Charter or in any other international instrument for that matter, which would permit such an intervention. The international legal framework set in 1945 contained rather simple rigid rules. According to them, the UN Security Council may only use in selfdefence or on authorisation force. The 17
purpose of and reasons for the use of force, and the enforcement of protected human rights were not distinguished. The Charter did not authorise the use of armed force by any state against another state for the protection of human rights or establishment of democratic institutions (like in the case of Iraqi war 2003), or for any other cause. Therefore, the conclusion here could be that no new norm is emerging in the recent international legal order, which would recognise the legality of either form of humanitarian intervention. However, in the 20 the Century, international law seemed to reach the point of evolution where the protection of human life and dignity constitutes its most fundamental element. It is possible to say that there is a slight contradiction between these to principles the principle of non-intervention and the principle of protecting human rights, since the reality often prevents the latter without breaching the former principle. It seems that some critics might be right to criticise international legal order to be deaf to the tones of reality and helpless when its fundamental principles collide. The current absolute (imperative) legal norm of non-intervention thus paralyses any protection of basic human rights from an outside force other than those acting explicitly with the UN SC blessing. The natural question follows what if the Security Council fails or refuses to act. The current mechanism of UN SC voting clearly leads to an even greater chance of such outcome. How can the international community, a state or a group of states step aside in cases of mass murders, state terror and torture? Furthermore, the concept of state responsibility to fulfil their obligations under international law (including those to protect international peace and security; to recognise, respect and protect fundamental human rights) also calls for a refurbishment of our notions on the nonintervention principle. For that reason, at least some developments must be also made in the direction of changing the understanding and the legal reality of humanitarian intervention. As a needed step in this direction, there is much discussion of the wisdom of changing the parameters and terminology of the debate. Above all this means making states and governments more accountable for their actions vis-à-vis their citizens, so that the issue becomes one of a responsibility to protect on the part of states, rather than a right to intervene on the part of the international community. Similarly, humanitarian intervention becomes rather protective intervention when states and governments have failed their responsibility. For its part, however, the international community has the responsibility to assist states and governments in providing the means by which fundamental human rights can be assured in the first place, before intervention becomes necessary, and then to adequately follow up in post-conflict reconciliation and reconstruction should intervention occur - in short, full cycle involvement. Issues of Legitimacy More thought needs to be given to the why is of intervention, the criteria that should be met to justify intervention in order to help pinpoint where international law and custom should be evolving. Delineating such criteria could also help establish common ground between quite divergent international perspectives on the relative 18
weight to be given to sovereignty v. intervention, thus ensuring that when intervention occurs, it has the widest international support. Following some discussions, four possible categories of criteria justifying intervention, from the easiest to the most difficult, could be set out: Gross and systematic human rights abuses, including genocide (such as occurred in Cambodia and Rwanda); The suppression of the clearly demonstrated will of the majority (such as the overthrow of the democratically-elected government in Haiti or the suppression of an internationally-mandated expression of selfdetermination, as in East Timor); Clear cases of failed states, where central authority is nonfunctioning and the civilian population is at the mercy of militias, warlords, criminal gangs, etc. (Somalia, Liberia, Sierra Leone); The illegal and inhumane use of power by one side or the other during a civil war encompassing an attempt at secession and/or ethnic/religious self-determination. The obvious difficulty with these categories is that evidence of the criteria in question is not always clear-cut and that grey areas can exist within a category (when does widespread civil strife become a failed state?), and that some cases fall into more than one category. One way of considering the legitimacy of humanitarian interventions is to place such interventions along a consensual/coercive continuum. Speaking in words of historical examples, intervention in Sierra Leone poses no problem concerning legitimacy, as the government in Freetown requested international aid. Regarding East Timor, the consent of the Indonesian government was granted, albeit following strong international diplomatic and economic coercion. Kosovo represents the most difficult case. While not legitimate in the narrow sense of not having the approval of a direct mandate from the UN Security Council, the Kosovo intervention was attempted to be justified by NATO on primarily humanitarian grounds. These were amplified in public only by the British government, which refuted the accusation of illegitimacy by pointing to the framing authority of past UN SC resolutions on Yugoslavia as well as to the six non-aligned states in the Security Council which joined western nations in voting against the Russian resolution (condemning the NATO action), which could be taken as implicit approval. The wider international response was either sympathetic or muted. The Modalities of Intervention The current international environment, as said before, is not at all conducive to well-planned, well-carried out, well-supported interventions that can stay the course. Especially in a period of generalised retreat from multilateral institutions, the re-empowerment of state agency may, while seeming a paradox, be all the more important in terms of strengthening notions of a responsibility to protect. Five categories of the modalities of intervention can be reviewed in the course of current international reality: 1. conflict prevention; 2. sanctions, where there are more problems than opportunities, and where it's difficult to show causal effect and avoid injuring the innocent; 19
3. legal instruments, where definitions of sovereignty are conditional on norms developed through the Nürenberg, Yugoslav and Rwanda tribunals, by the International Criminal Court, by legal intrusion into the conduct of military operations; and by expanding case law that provides for domestic jurisdiction over international behaviour; 4. military intervention, of three types: (a) coalition action without a direct UN mandate (Kosovo); (b) a UN SC mandate with a framework nation in the lead (Australia in East Timor); and (c) an independently legitimated action to rescue and restore a UN effort (the UK in Sierra Leone); 5. Full cycle planning, noting how strategic opportunities created by military interventions have been squandered by lack of post-conflict administration and reconstruction (Angola, East Timor, Kosovo) 79. Who Intervenes, and Why? While the United Nations is best positioned to give legitimacy to interventions, too often UN SC action is blocked by a great power veto. One solution to this could be the concept of a negative veto, where action will be taken unless a veto is cast, making it more difficult for countries to block action. In the absence of such reforms, what other sources of authority can we look to provide legitimacy for intervention? Certainly regional organizations can, and have, taken the lead. Regarding the Organization of American States (OAS), there is the triggering mechanism provided by the Santiago Decla- 79 Intervention, Sovereignty and International Security, avaliable at http://www.pugwash.org/reports/rc/rc11htm ration of 1991 regarding military overthrows of a democratically elected government. Yet regional politics can militate against regional solutions; in the cases of El Salvador and Guatemala, countries in Latin America expressed a preference for having the international community, not regional organizations, intervene. Regarding Africa, even though non-interference is enshrined in the OAU charter, there have been cases of the OAU being willing to give primacy to intervention over sovereignty (especially in the case of South African apartheid). Regarding domestic politics and the national interest, domestic considerations can both propel and constrain intervention. Indeed, some semblance of a national interest must be present for a country to commit troops and resources to an intervention. In the case of the US and Haiti, for example, it was argued that several important national issues helped justify US intervention: Haitian refugees, the Congressional black caucus, and the affront to US power when the USS Harlan was turned away from Haiti s shores. As in the case of Somalia, of course, events can also conspire to constrain and ultimately terminate an intervention. While there does seem to be convergence within the international community on criteria for intervening in the case of gross human rights abuses, the problem is one of agencies and modalities. There is thus a need to come back to issues of world governance and new concepts of security. While recognizing the need to avoid invidious double standards, a distinction (in terms of global security) can be made between instability in Bosnia and Kosovo and those in a country 20