The best solution as ultimately, despite the importance

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Last updated: September 27, 2019

The existence of International Lawhas undoubtedly been a necessity for the better part of the century, but it hasnot been without its uncertainties. United Nations (UN) Secretary General Annandiscussed one of these uncertainties regarding “the dilemma of intervention”.

1The uncertainty was on the conflict of two ‘juscogens’, (the peremptory norms in international law2),the defence of humanity and the defence of sovereignty.  Part I of this essay aims toestablish the foundation of this area with a segment on the UN Charter (UNC).Part II will discuss the two ‘jus cogens’with Part III exploring the doctrine of the ‘Responsibility to Protect’. Itargues that this may be the best solution as ultimately, despite the importanceof sovereignty, it should not supersede the defence of humanity.

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 PartI: The FoundationThe UNC formed in 1945 with thetreaty being signed by forty-nine Member States.3Seen as the main legal constitution of international law, it introduces theprinciple of justice as it establishes principle conditions. These allow justiceand respect for the obligations arising under the principle of “pacta sunt servanda4″to be maintained.

5 Hobbs suggests that justice isessentially a voluntary agreement of a social contract which forms undernatural causes6and lays out nineteen laws of nature. The three main laws are: to seek peaceand follow it, a mutual transferral of rights, and that men should perform thecovenants they make.7Taken as a set of criteria, the UNC arguably aims to fulfil these three main laws,as seen in the preamble. The motivation behind the UNC is to “save succeeding generationsfrom the scourge of war”8thus fulfilling the first law of nature regarding the ‘pursuit of peace’.

Throughthe principle of state sovereignty,9the second law is also satisfied and with the principle of “pacta sunt servanda”, the third law wouldalso be fulfilled. Thus, the UNC can arguably be considered a ‘just’ piece oflegislation, leading to the view that the provisions in it are also ‘just’.  The arguably most importantprovision is Article 2(4), also known as the “prohibition against the use of force”,which is vital in the ‘jus ad bellum’.10Article 2(4) provides that by no means can force be used in a foreign state11unless for self-defence12or collective security13with the authorization by the Security Council14(SC) and is possibly the most important organ of the UN.

It has fifteen Member States,five of which, (United Kingdom, United States, China, Russia, France), haveprivileged roles.15It raises the issue of a lack of equality and contradicts Article 2(1) (whichlays out the formal equality of the UN), mentioning that the UN is based upon thesovereign equality of all its Members.16It brings to mind the phrase “all animals are equal, but some are more equal thanothers”.17When interpreted, Orwell plays on the meaning of equality and whencontextualized, could mean that some countries are of equal standing but othersare equal on different levels. This idea is supported by Moslemi who statesthat outright “equality in rights” is not the purpose and is only a basis forthe development of other principles.18 Thisadds uncertainty to whether ‘just’ decisions are made if an equality ofopportunity is found lacking in the most important body of the organization.Rawls explains for equality to prevail, society must provide “more attention tothose with fewer native assets and to those born into the less favorable socialpositions”19and mentions that equality of opportunity is necessary for there to be justice.20 When considering the SC,it is arguable that the decisions can be discerned as unjust.

However, therehave been attempts at reform, with efforts coming from the “small five”targeted at ‘improving methods of the SC’.21 With up-and-comingcountries such as Brazil and India,22 change is possibly imminent.Admittedly, the ‘super states’ have done their job with decisions likeresolution 67823which led to the overthrow of Saddam Hussein. Understandably, there is noperfect solution, says Claude,24 but the positive actionto look for change can be reassurance that the UN is working to become a more’just’ organization. This leads us to decisions which the SC makes concerningthe conflict of the defence of sovereignty and humanity.

 Part II: The Conflict of the ‘Jus Cogens’The first ‘jus cogen’ to beconsidered is one of sovereignty which is arguably an inherent right of a statecodified in Article 2(4)25and Article 2(7)26 whichsurfaced a few centuries ago during the positivist period. It established thedefinition of a sovereign state; where the ruler had sole rule over his state,and could not be subjected to a higher law without their consent, in additionto being treated the same as any other state.27It’s a right known to the world’s leaders, as seen by ex US President Obamawhom mentioned he would have the right to act if necessary to defend his nation.

28The principle of state sovereignty is arguably imperative to the definition ofwhat a state is; a “permanent population, a given territory, a government andjurisdiction to establish international relations”.29When applied, a lack of state sovereignty would undermine a government’s outrightauthority over its citizens, and thus, fail to uphold the ‘jus cogen’.   Khoshroo mentioned that the mainreason why peace had not been achieved is because of a tendency to resort tounilateralism and a non-compliance with international law.30The point being brought across was that without sovereignty, States will have nofreedom to grow as can be seen in Iraq where resolution 68731was passed in the build-up to take down Saddam Hussein, but the measures put inplace originally has still not been removed till this day.

32 Moslemi mentions that in anenvironment where all subjects have sovereign rights, the relationship based onequality has to be considered a “logical necessity”.33This statement suggests that the principle of state sovereignty is based on thesovereign equality of all States which means that “all States have equal sovereign rights and this right must be respected bygovernments”.34However, this has not been the way the UN carries out their decisions. Stead mentionsthat the idea of true equality would be “absurd fiction” as not all States areequal in stature, intelligence or habits of thought.35This gives the impression that if state sovereignty is based off a conceptwhich has been repeatedly disregarded by the UN, as seen from the compositionof the SC, it questions the very importance of the concept.  Furthermore, the ‘jus cogen’ of the defence of humanrights, breaks the rules of state sovereignty when achieving its aim throughthe doctrine of Humanitarian Intervention (HI) defined as an action carried outin a foreign state, aimed or imposed on the government of the state, intendedto halt or avert egregious human right abuses.36This would mean that a ruler would not have sole rule over his state asmentioned earlier37and ultimately does not defend sovereignty. The need to respect humanity can befound codified in Article 5538and Article 5639as Hussein raised the need for an improvement in efforts as human rights werebeing disregarded to an alarming extent.

40 It is arguable HI has been a long-establishedconcept with cases such as Napoleon III.41Even though the definition was not codified, it is possible to argue that therudimentary intent of HI began earlier than thought. However, with progressiverestrictions on the use of force,42the responsibility lies increasingly on the SC to ensure the protection of humanity.However, with the SC lacking in equality, questions would be asked of HI aswell.  This can be explored through thesituation in Kosovo where the SC failed to authorize NATO to take actionagainst the rebels. However, NATO still took action, with China criticising thedecision, mentioning that for an effective defence of humanity, sovereignty ofa country cannot be put in jeopardy.43The investigation found the action “illegal but illegitimate”44as all diplomatic avenues were exhausted.

45  The doctrine is arguably necessaryin the interests of liberalism where citizens should “have an equal right tothe most extensive basic liberty compatible with a similar liberty for others”.46Although it is reasonable that not all countries are liberal, the questionwould be to what limits of liberalism do we tolerate?47Rawls concludes that “an agreement on a law of peoples ensuring Human Rights isnot an agreement only liberal societies can make”.48He then states that the defence of peoples subjected to grave cases of humanrights violations is the only legitimate grounds of the right to war.49When applied, the decision made by NATO was inherently ‘just’, and in line withthe aim of the UN,50which justifies the findings of the Commission.

51However, it has to be noted that the defence of humanity will always breach thedefence of sovereignty.     PartIII: Responsibility to Protect (RtP)With both ‘jus cogens’ seemingly unsuited to the current age, the doctrine ofthe RtP has to be considered. Deng rethinks the principle of state sovereignty52and mentions that the RtP is “inherent in sovereignty” where the state’sobligation is to protect citizens from harm.53This coincides with Annan’s stand that the principle of sovereignty has beenredefined.

54 TheInternational Commission on Intervention and State Sovereignty then developedthis principle and established three elements which are: the responsibility toprevent, react and to rebuild.55 The most recent display of thedoctrine would be in Libya where the SC passed resolution 1973 to authorizeMember States to take “all necessary measures” to protect Libyan citizens.56Koh said this was an instance where the ruler “forfeited his responsibility toprotect his own citizens and created a serious need for immediate humanitarianassistance and protection”57although China and Russia challenged the action, arguing that the force wasoverextended.58Mohamed argues that the doctrine has not established a suitable framework todeal with the occurrence of unauthorized or uncontrolled HI.

59Furthermore, the idea of subordinating considerations of legality to those oflegitimacy or morality60cannot be sustained even though it seems to be the status quo as the stance forsome seems to be; “if power is used to do justice, law will follow”.61 Rawls argues that law abidingsocieties have a duty to their own and one another’s societies as to theirwellbeing, even those “subjected to outlaw regimes”.62He mentions that defence is only the beginning, and like the last element ofthe RtP, the aim would be to bring societies to “honour the law of peoples”.63With the lack of follow up in Libya, it explains the SC’s hesitation to act inSyria64and furthers the notion of a lack of a proper solution to this dilemma and insubstantialprecedence of the doctrine in motion.65 The case of Nicaragua explained that despite the possibility that a reliance onnovel rights could lead to a modification of customary international law, stateshave not justified their conduct through a new exception.66  ConclusionRawls mentions that the powers ofsovereignty must now be reformulated in light of a reasonable law of peoples,removing the right to war and internal autonomy.

67This statement further encourages the doctrine of RtP as Glennon states that anti-interventionistregimes have “fallen out of sync with modern notions of justice”.68 Obama mentions, “sovereignty cannotbe used as a shield for tyrants to commit wanton murder or an excuse for theinternational community to turn a blind eye”69and questions whether the UN can agree to whether the world is powerless in suchsituations.70This coincides with Annan’s stand who mentions that no legal principle shouldever shield crimes against humanity.71States are still finding their feet as to managing HI, and with the RtP, itshows a step into a direction which sees the defence of humanity ultimately supersedethe defence of sovereignty.  1 United NationsGeneral Assembly ‘Report of the Secretary General on We the Peoples: The Roleof the UN in the Twenty-First Century’ (March 2000) UN Document A/54/2000.2 RafaelNieto-Navia, ‘International Peremptory Norms (Jus Cogens) and International Humanitarian Law’ (KLI, 2003). 3 UN, Charterof the UN, 24 October 1945 (UN Charter).

4 Daniela Nicoleta Popescu ‘The Principle Pacta SuntServanda: Doctrine and Practice’ (2009) 16 Lex ET Scientia Int’l J. 128.5 UNC,Preamble.6 Thomas Hobbes, ‘Leviathan'(1st published 1651, Penguin 1985) 59.  7 Ibid.

8 UNC, Preamble. 9 UNC, Article 2(4).10 Saira Mohamed, Restructuring the Debate onUnauthorized Humanitarian Intervention (2010) Vol 88 NCLR 1275.

11 UNC, Article 2(4).12 UNC, Article 51.13 ibid.14 UNC, Article 39.15 JoannaHarrington, ‘The working methods of the United Nations Security Council: maintaining the implementation of change’, (2017)ICLQ 39.16 UNC, Article 2(1).17 George Orwell,Animal Farm (Secker & Warburg, 1945).

18 Moslemi,’Principle of Sovereign Equality of States in the Light of the Doctrine ofResponsibility to Protect’ (2015) International Journal of Humanities andCultural Studies 687.19 John Rawls, ‘A Theory of Justice’ (HUP 1971).20 Ibid.21 Harrington (n 15).22 Ibid.23 UNSC Resolution 678 (29 November 1990) UN DocS/RES/678.24 Inis Claude Jr, Swords into Plowshares: Problems andProgress of International Organization, (3rd Ed, ULP, 1965).25 UNC, Article 2(7).

26 UNC, Article 2(4).27 Treaty of Westphalia (signed 15 May–24 October 1648, entered into force on 24October 1648).28 US Government,2010 National Security Strategy Report found at http://nssarchive.us/national-security-strategy-2010/ (May 2010).29 Moslemi (n 18)689.30 UNSC Meeting 7621 (15 February 2016) UN Doc SSC/12241.31 UNSC Res 687 (8 April 1990) UN Doc S/RES/687.32 CBS, ‘UN Moves Closer to Lifting Iraq Sanctions’ CBSNews (2010) at

cbsnews.com/news/un-moves-closer-to-lifting-iraq-sanctions/>.33 Moslemi (n 18)688.34 ibid 691. 35 Edwin De WittDickinson, ‘The Equality of States in International Law’ vol.

3, (HUP 1920) 286.36 Chelsea O’Donnell, ‘The Development of the Responsibilityto Protect: An Examination of the Debate over the Legality of HumanitarianIntervention’ 2014 DJCIL 557.37 Treaty ofWestphalia (n 27).38 UNC, Article 55.39 UNC, Article 56.40 Office of the High Commissioner UN Human Rights,’Opening speech to the High-Level Segment of the Human Rights Council’ byHussein (2 March 2015) at

org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15628=E>.41 O’Donnell (n 36) 559.

42 UNC, Article 2(4).43 UN GAOR, 54thSession, 8th Plen Mtg, UN Doc. A/54/PV.8 (22 September 1999).44 The IndependentInternational Commission on Kosovo, “The Kosovo Report”, (OUP 2000) 4.45 Ibid.

46 Rawls (n 19), 213.                                                               47 John Rawls, ‘TheLaw of Peoples’ 1993 CI 37.48 ibid 53.49 ibid 61.50 UNC, Preamble.51 IICK (n 44).52 O’Donnell (n 36) 560.53 ibid 561.

54 Annan, ‘Secretary-GeneralPresents His Annual Report to General Assembly’ (September 1999) Press Release SG/SM/7136,GA/9596. 55 The InternationalCommission on Intervention and State Sovereignty, “The Responsibility toProtect”, (IDRC 2001) XI. 56 UNSC Res 1973 (14 March 2011) UN Doc S/RES/1973.57 Harold Koh, LegalAdvisor, U.S.

Department of State, Statement Regarding Use of Force in Libya (26March 2011) at .58 Simon Tisdell,’The Consensus on Intervention in Libya Has Shattered’, The Guardian, (23 March 2011).59 Mohamed (n 10).

60 Ibid 1278.61 Michael Glennon,’The New Interventionism: The Search for a Just InternationalLaw’ (1999) Vol 78(3) Foreign Affairs 2.62 Rawls, (n 48) 61.

63 Ibid. 64 Dan Kuwali, “Responsibility to Protect: Why Libya andnot Syria?” (2012) Issue 016 Policy and Practice Brief.65 Mohamed (n 10), 1288.

66 Nicaragua v. USA 1986 I.C.J. 14.

67 Rawls (n 47). 68 Glennon (n 61) 7.69 Remarks to the UNGAin New York City, 2013 PRES. DOC. 655 (24 September 2013).70 Ibid.71 Annan (n 1)

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