Can The International Community Meddle In The Affairs Of A State?

l by Dr. Ruwantissa Abeyratne

(March 17, 2012, Montreal, Sri Lanka Guardian) The basic underlying principle of international law is State sovereignty. Simply put, this means that the will of a State prevails over any external influence. Sovereignty has provided a certain immunity for rulers of States in exercising their authority and served them well as a mechanism for preventing foreign invasion. Even the United Nations, in its Charter recognizes that the Organization is based on the sovereign equality of all its member States. The same provision goes on to require all UN members to refrain 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.

Here’s an interesting point. The use of “force” is not defined in the Charter. It certainly is not singled out as being military force, although armed force is mentioned in Article 51 of the Charter on self defence. So what other type of “force” could one ascribe to this provision? If one were to look for a legal definition, Black’s Law Dictionary defines force as “power, violence, compulsion or constraint against a person or thing”. Therefore one could conclude that, technically, the United Nations Charter prohibits the use of compulsion or constraint against a person, and a State being a legal entity can be regarded as a “person” in this context. This is as far as one can get in terms of a modern interpretation of State sovereignty, and it is for one to make one’s own conclusions as to whether sanctions imposed upon a State, or for that matter a Resolution adopted imposing such sanctions or “constraints” or “compulsions” would flout this basis principle of international law.

For every citizen of the world, rights have never been so important as they are today, although we tend to take them for granted until they are endangered or eroded. Instinctively, we are inclined to appreciate our rights even more when they are in jeopardy of being infringed. Therefore, the most important key to good governance is benevolence and understanding. A good government must assure its people that it has their well being at heart and proactively move towards achieving that goal.

The United Nations Charter has several provisions whereby the Security Council can take preventive action against a State in certain circumstances. However, it is silent on actions to be taken in the context of “force” against perceived acts of past inequity or violence. Therefore such acts would presumably come under the purview of international litigation carried out in criminal tribunals and courts.

So to what extent would a State be entitled to invoke its territorial sovereignty and integrity in obviating retrospective inquiry into its internal actions? The 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasized that no State has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The Declaration went on to say that consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or its political, economic and cultural elements, are condemned. This principle was reaffirmed in the 1970 Declaration on Principles of International Law contained in United Nations General Assembly Resolution 2625.

The United Nations Charter and its resolutions aside, legal experts are of the view that, although the classical interpretation of sovereignty is absolute and rigid giving untrammelled power to a ruler, it is no longer the case in the modern context. Partly, the reason for this could be globalization where trade barriers have been blurred and international responsibility towards all of mankind mesh with international trade and the exchange of goods and services. As I mentioned in one of my earlier articles in this journal, J.G. Starke, a leading authority on international law states: ..."Sovereignty" has a much more restricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly nationalised States, few limits on State autonomy were acknowledged. At the present time there is hardly a State which, in the interests of the international community, has not accepted restrictions on its liberty of action. Thus most States are members of the United Nations and the International Labour Organization (ILO), in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. It is of interest to note that this conception resembles the doctrine of early writers on international, law, who treated the State as subordinate to the law of nations, then identified as part of the wider law of nature”.

Diplomatic practice has consistently veered from the theoretical abstraction of sovereignty towards the rights of the citizen which are now considered to have global application. Through many measures, states express their displeasure and impose hurtful measures on a delinquent State when they feel that the State is being unfair to its citizens. From an extreme measure such as the adoption by the Security Council of Resolution 1973 against Libya which brought in the military might of the NATO forces, to other covert or surrogate measures such as the interruption of diplomatic and economic relations either wholly or in part, and the withholding of aid, courtesies and other amenities to verbal expressions which are calculated to cause States embarrassment, and political isolation which in turn cause shame and loss of status in the international community, diplomatic measures transcend the vexed issue of State sovereignty.

It is submitted that the pristine purity with which the United Nations Charter addresses State sovereignty could be eroded by the international community only within the following philosophy:

a) Any sovereign State in the 21st Century should work assiduously towards realizing the contemporary aspirations of its people. Human kindness and empathy are the preeminent values of modern day life. These form the basis of a new list of overarching human rights which are more compelling than most traditional rights that have been considered to be the birthright and natural endowment of the citizen;

b) The rights of the individual, when taken collectively, act as the fundamental postulate of any constitutional democracy. Not only must a right remedy a wrong that has been committed or obviate a wrong that ought to be prevented, but a right must be contrived according to circumstance and formally recognized;

c) The preeminent fundamental human right is the right not to be wronged;

d) The true value of a nation lies not in its achievements but in its compassion for its people and those of other nations of the world. A nation’s compassion inevitably flows from its recognition of its people’s rights;

e) rights do not come from nature, as nature is value neutral, nor do they come from logic or law alone because, if rights emanated from law, there would be no basis to judge a given legal system. Rights come from human experience, particularly experience with injustice;

f) human rights are exercised through good governance in a State. The most simplistic definition of "governance" is that it is the process of decision-making and the process by which decisions are implemented;

g) good governance has 8 major characteristics. They relate to participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive functions and are carried out strictly according to the rule of law. These major characteristics ensure that the public is safe from corruption or that corruption is minimized to an irreducible minimum and the views of minorities are taken into account;

h) overall good governance should ensure that the voices of the most vulnerable in society are not only heard but are also taken into consideration in decision-making, and that the present and future needs of society are responded to;.

i) human rights should be viewed as something more than a concept which acts as a cultural artefact. They transcend fundamental rights, which are essentially political and civil rights, and expand to more basic rights such as the right to be equal to anyone with regard to the basic universal need for nourishment, shelter, clothing and education. In order to make sure that they are enjoyed by all of humanity, any community will have to make sure that human rights are a matter of course and are ensured by a guaranteed and contrived effort by all.

For every citizen of the world, rights have never been so important as they are today, although we tend to take them for granted until they are endangered or eroded. Instinctively, we are inclined to appreciate our rights even more when they are in jeopardy of being infringed. Therefore, the most important key to good governance is benevolence and understanding. A good government must assure its people that it has their well being at heart and proactively move towards achieving that goal.

If one can prove that the 9 obligations of a State discussed above have been breached, no one could question the right of the international community to meddle in the affairs of a State.