• No results found

I TS S COPE OF A PPLICATION AND

4.2 Sovereignty as a Concept in International Law

The international legal order has embraced the concept of an egalitarian division of nation states since the peace of Westphalia in 1648.4 Resulting from this approach to

the international legal order, the concept of state sovereignty has been embedded in political and legal relations between states for many centuries. From the peace of

2 See in this regard UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139. 3

Section 4.2.2 Reconceptualising Sovereignty?

4 This research will not discuss the formation of sovereign states as such nor the creation of the

international division according to such sovereign states, but rather take this as a premise for further discussion of the notion of state sovereignty in so far as it relates to the concept of humanitarian assistance. For an in-depth view on the coming into existence of the world into such sovereign states see amongst others: Nico J Schrijver, ‘Begrensde Soevereiniteit: 350 jaar na de vrede van Munster’, Oration for the acceptance of the Professorship in international law at the Law Faculty of the Free University of Amsterdam (15 May 1998); T Jacobsen, C Sampford & R Thakur (eds) Re-envisioning Sovereignty: The End of Westphalia? (Ashgate 2008); and Malcolm Shaw, International Law (Cambridge University Press 2003) 13-20.

Westphalia until well into the nineteenth century, the ‘sacred’ concept of state sovereignty was not to be tampered with.5 Today, state sovereignty is increasingly

considered restricted, in relation to a sovereign’s actions towards those within its jurisdiction.6 Prior to assessing the current state of international law and state

sovereignty, with its embracement of the notion of the ‘Responsibility to Protect’, a brief overview of developments in the past century is given, for the purpose of contextualisation in relation to the provision of humanitarian assistance.

4.2.1 Historical Context and Relevant Principles in Relation to Humanitarian Assistance

As put by Robert Jackson, prosecutor at the Nuremberg Tribunals in 1949, the notion of sovereignty at the beginning of the twentieth century could be phrased as:

“each state is sovereign, its right absolute, its will unrestrained, and free to resort to war at any time, for any purpose”.7

This egalitarian approach to states’ mutual relations can be seen as the external aspect of state sovereignty: par in parem non habet imperium, as laid down in Article 2(1) UN Charter,8 as well as expressed by the ICJ in the Corfu Channel case:

“Between independent States, respect for territorial sovereignty is an essential foundation of international relations”.9

5 Jackson Nyamuya Maogoto, ‘Westphalian Sovereignty in the Shadow of International Justice? A Fresh

Coat of Paint for a Tainted Concept’ in T Jacobsen, C Sampford & R Thakur (eds) Re-envisioning Sovereignty: The End of Westphalia? (Ashgate 2008) 211.

6 Section 4.2.2 Reconceptualising Sovereignty? 7

Robert H Jackson, ‘Nuremberg In Retrospect: Legal Answer To International Lawlessness’ (1949) 35

American Bar Association Journal 813.

8 The full text of Article 2 UN Charter states: “The Organization and its Members, in pursuit of the

Purposes stated in Article 1, shall act in accordance with the following Principles. 1.The Organization is based on the principle of the sovereign equality of all its Members. 2.All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3.All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4.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. 5.All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6.The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7.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”.

126

As such, a state cannot be subjected to the authority of another state in the international legal order.10 Conversely, Article 2(7) of the UN Charter stipulates that

within the boundaries of international law, sovereign states are entitled to determine the domaine reservé; their domestic jurisdiction, freely and without interference from the United Nations.11 Implied here is also the fact that such domestic jurisdiction is

to remain free from interference from other states. This aspect is considered the flip- side of the same coin of sovereignty, namely the internal aspect of state sovereignty.12 It is both this domaine reservé and the permeability of the external

aspect of sovereignty which is subject to debate, as the international legal order has begun to redefine the boundaries of sovereignty. Such discussion aligns with the increase of non-international conflicts and the so-called ‘war on terror’ in recent years that have attracted international concern. The need to provide humanitarian aid in such circumstances indeed contributes to this discussion.

These boundaries to the notion of state sovereignty are both instated and confined by international law, making international law the sphere in which the discussion on the definition and content of state sovereignty takes place. Several principles interconnected with the notion of state sovereignty in international law are of particular importance in relation to the concept of humanitarian assistance, amongst which the above mentioned principle of ‘non-intervention’, as well as the principle of ‘respect for the domestic jurisdiction’ and the principle of ‘consent’. These three principles will be addressed further in this Section, as the legal content of the concept and the consequences deriving from these principles must be discussed prior to the development of sovereignty into the 21st century. Whilst it has been established that

the provision of humanitarian assistance must occur in accordance with the principles of humanity, neutrality and impartiality, gaining access to a territory is key in the actual delivery of external aid. The rights and duties involved in the provision of aid by third parties form a large part of the legal framework, in the event the affected state is unable or unwilling to provide assistance. As such the changing notion of sovereignty and its principles are essential in the establishment of the content of the law regarding the rights and duties in the provision of assistance.

4.2.1.1 The Principle of Non-Intervention

The principle of non-intervention is widely recognised in international law as one of the basic premises upon which the international legal order is framed, amongst others laid down in Article 2(4) UN Charter.13 Closely related is the somewhat ‘softer’

principle of non-interference. In the second half of the 20th century, sovereignty

10

See Schrijver, ‘Begrensde Soevereiniteit: 350 jaar na de vrede van Munster’ (n 4) 11; and Shaw,

International Law (n 4) 1013.

11 See (n 8) for the full text of Article 2 UN Charter. 12

R Jennings, ‘Sovereignty and International Law’ in G Kreijen (ed), State, Sovereignty and International Governance (Oxford University Press 2002) 32.

13 See (n 8) for the text of Article 2. See also ILC ‘Protection of persons in the event of disasters’

indeed remained defined as ‘let’s leave each other alone’.14 In particular in relation

to the provision of assistance, the principle of non-intervention is relevant in two regards. Firstly, as mentioned above, it is relevant to address the differentiation between delivering humanitarian assistance, and forcefully gaining access to a territory; thereby violating the principle of non-intervention. Secondly, should lawful access be established, a differentiation must be made between those ‘intervening’ by forceful measures, and those providing emergency aid. As such, addressing the content of this principle is relevant to the establishment of the legal framework on the provision of humanitarian assistance.

With the establishment of the UN, the Security Council and the notion of collective security, measures taken by the Security Council under Chapter VII of the UN Charter to remedy violations of international peace cannot be considered to be a breach of the principle of non-intervention.15 This was indeed confirmed by the UN

General Assembly in its 1965 ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of Sates and the Protection of their Independence and Sovereignty’.16 The General Assembly furthermore declared the prohibition of

intervention in any form in the ‘internal or external affairs’ of another State, condemning any such action of its Member States.17 Although the Declaration can

be placed in the political realities of the Cold War at that time, and dealing largely with decolonisation issues, it does reflect the mindset of the then 117 UN Members. Subsequently in 1970, the General Assembly reaffirmed this take in its ‘Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations’ (Friendly Relations Declaration), declaring that both the principle of non-intervention as well as the principle of sovereign equality remain pillars of international law.18 Yet again

in 1981, the General Assembly adopted a ‘Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States’ once more reaffirming the relevance of the principles of non-intervention and non-interference in international law, and furthermore providing for an extensive deliberation of what these principles entail.19

14 Louis Henkin, ‘That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera’, (1989)

68 Fordham Law Review 1, 3.

15

Vincent Chetail, ‘The contribution of the International Court of Justice to international humanitarian law’, (2003) 85 International Review of the Red Cross 850, 265-266. The role of the UN Security Council and its stance on non-intervention in relation to the provision of humanitarian assistance will be discussed in Chapters 7 and 8

16 UNGA Res 2131 (XX) (21 December 1965) ‘Declaration on the Inadmissibility of Intervention in the

Domestic Affairs of Sates and the Protection of their Independence and Sovereignty’ §8.

17

Ibid § 1.

18 UNGA Res 2625 (XXV) (24 October 1970) ‘Declaration on Principles of International Law

Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations’, Annex.

19 UNGA Res 36/103 (9 December 1981) UN Doc A/RES/36/103 ‘Declaration on the Inadmissibility of

Intervention and Interference in the Internal Affairs of States’, Annex. The Declaration distinctly sets forth several rights and duties resting upon states in the compliance with the principle of non-intervention.

128

Whereas the Nicaragua-case has been seen to be relevant in the discussion of the principles pertaining to the delivery of humanitarian assistance (discussed in Chapter 2), the ICJ also notes generally in regard to the content of the principle of non- intervention that:

“the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force.”20

The importance of access to a territory for the purpose of providing aid almost goes without saying, and although the ICJ refers back to the 1965 ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of Sates and the Protection of their Independence and Sovereignty’, the Court unfortunately foregoes the opportunity to settle the debate on the possible right to intervene on humanitarian grounds, as it does not clearly address the principle of consent or the principle of non- intervention in that context. 21 However, the ICJ did deal with the provision of

humanitarian assistance itself as a potential unlawful intervention within the territory of a state, rather than intervening for the purpose of assistance. Given the fact that the Court noted in the Nicaragua-case that the United States Congress had restricted assistance to ‘contras’ in Nicaragua, the Court argued that:

“There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law (…) In the view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering”, and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without discrimination to al1 in need in Nicaragua, not merely to the contras and their dependents.”22

Thus, although the ICJ does not address the possibility of an intervention for humanitarian purposes, it excludes the strict provision of humanitarian assistance from being a violation of the principle of non-intervention and thereby being an

20 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

Merits, Judgment 27 June 1986 I.C.J. Reports 1986, p. 14, § 205. The Court furthermore concluded (§ 209) that: “The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law”.

21 Ibid § 203. 22

infringement on state sovereignty. Furthermore, not only the offer of assistance is considered lawful by the ICJ, the provision itself is also considered to not infringe upon the principle of non-intervention as the Court declares ‘the provision of strictly humanitarian aid to persons or forces in another country, (…) cannot be regarded as unlawful intervention, or as in any other way contrary to international law’. Indeed, the offer of assistance must be distinguished from the manner in which it is delivered.23 Yet, unfortunately, the notion of an intervention by means of force, for

possible humanitarian purposes and indeed the concrete provision of aid, and thereby foregoing the principles of non-intervention and consent, is not addressed by the Court.24 In fact, the Court asserts that the provision of assistance by a third state is

lawful and must not be considered an intervention, without addressing how this assistance reaches the territory of provision. This leaves the international community somewhat in limbo as to how the neutral, impartial and humanitarian assistance could reach the needy recipients.

Following the ICJ’s 1986 Nicaragua Judgement, the General Assembly maintained in several resolutions pertaining to the delivery of humanitarian assistance that such delivery should not interfere with state sovereignty or violate the principle of non-intervention.25 Where the General Assembly ‘reaffirms the

sovereignty of affected states’ and declares that assistance should be delivered with the consent of the affected state,26 the ICJ has avoided such declarations. In

subsequent Chapters, this relationship between the provision of assistance and access to a territory for such assistance will be addressed in further detail.27

4.2.1.2 The Principle of Consent

Historically, international law is founded on the principle of consent. This principle was affirmed by the Permanent Court of International Justice declaring in the 1927 Lotus case:

“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view

23 Carlo Focarelli, ‘Duty to Protect in Cases of Natural Disasters’, (2010) Max Planck Encyclopedia of

International Law § 15. See Chapter 7 Third Parties and the Provision of Assistance: The Right to Offer Assistance and the Related (Potential) Right to Access.

24 See Chapters 7 and 8. 25

UNGA Res 43/131 (8 December 1988) UN Doc A/RES/43/131 ‘Humanitarian Assistance to victims of natural disasters and similar emergency situations’ § 2; UNGA Res 46/182 (19 December 1991) UN Doc. A/RES/46/182, General Assembly Resolution ‘Strengthening the coordination of humanitarian emergency assistance of the United Nations’, Annex I, Principle 3; and UNGA Res 45/100 (14 December 1990) UN Doc A/RES/45/100 ‘Humanitarian Assistance to victims of natural disasters and similar emergency situations’, § 2.

26

Ibid UNGA Res 43/131 § 2; UNGA Res 46/182 Annex I, Principle 3, and UNGA Res 45/100 § 2.

130

to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”.28

Even today, international law continues to build on the ideas set out in the Lotus case, although it has been argued that the notion of sovereignty is changing.29 With regard

to the provision of humanitarian assistance, the outset has been no different, although the absence of consent for the delivery of assistance is increasingly seen to become an issue sparking legal debate regarding enforcement options and the boundaries of sovereignty. In theory and in practice, a state is only bound by those aspects of international law to which it freely consents, with the exception of course of principles of jus cogens.30 As such, a state may accede to a human rights treaty, yet

in doing so leans heavily on state sovereignty in its decision to accede, the moment to accede, and even with regard to the extent to which it accedes, through a choice in reservations.31

Although the principle of consent is particularly relevant in relation to international treaty law, states have chosen not to invoke this aspect of their sovereignty in relation to their accession to both the four 1949 Geneva Conventions and their 1977 Additional Protocols, forming the basis of international humanitarian law, as well as the relevant provisions of human rights law relating to humanitarian assistance.32 Treaty law formation is however different from customary international

law, where objecting, as opposed to consciously consenting, is the manner in which a state may avoid being bound by newly formed international law.33 As will be seen

in Part II, existing customary international law pertaining to humanitarian assistance has generally also been codified in major human rights treaties and the Geneva Conventions and their Protocols; to which states, as just mentioned, have not made