Humanitarian Intervention and International Non-intervention
by Yoko Iwama
1. Introduction
This title would normally be a paper about international law, but since I am not a lawyer, I will not attempt a legal examination of the problem of sovereignty and humanitarian intervention. In this discussion paper, I would like to examine some recent research of international politics about state sovereignty and human rights regime, and than go on to examine the post-Cold War situation about these problems. The most striking feature in my view about NATO's intervention in Kosovo was not the precedent it created, but the sense of violation that was aroused by it. People were arguing whether NATO had the right of intervention without UN Security Council mandate. In other words, nobody questioned the right of outside intervention, had there been a Security Council resolution. In the following, my focus will be the meaning of this state of affairs, and the development of norms surrounding UN Security Council's authority. But first I will examine the reality surrounding state sovereignty and international human rights from international politics viewpoint, and then move on to examine the humanitarian interventions in post-cold war period.
2. Westphalian State Sovereignty―An organized hypocrisy?
The basis of the principle of non-intervention is state sovereignty, which every state is supposed to possess equally. This is clearly set out in the UN Charter Art. 2-1: "The Organization is based on the principles of the sovereign equality of all its Members." Art 2-4 states "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." There are only two exceptions allowed by UN Charter. One is "individual or collective self-defense" (Art.51). The other is when the Security Council determines "the existence of any threat to the peace, breach of the peace, or act of aggression" (Art.39) under Chapter VII of the Charter. Art. 2-7 states that "nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."
This principle has been subsequently enforced through the years by different conventions and resolutions, principally following the wishes of newly independent states in post-war era, wishing to avoid intervention from former colonial powers.1 So when we start discussing intervention or non-intervention, our unspoken precondition is that states are sovereign, that they have the right to determine what is done inside their borders without interference from outside.
In international politics we often talk about "Westphalian system," composed of sovereign states. These states are supposed to possess bundle of attributes like territory, recognition, autonomy and control.2 This system is supposed to have emerged after the Westphalian peace of 1648, and the principle of state sovereignty is said to gradually have followed it, becoming firmly established in the late nineteenth to early twentieth century.3
