PUBLICATIONS - COMMISSIONERS IN THE NEWS

Diego E. Arria
International Institute for Strategic Studies (IISS) Global Strategic Review
Washington D.C September 12th-14th, 2003
September 1, 2003

The concept of Sovereignty has moved centre stage since the end of the Cold War as military interventions in the affairs of nominally sovereign nations have increased. First Bosnia, then Somalia, Rwanda, East Timor, Haiti, Yugoslavia and now Iraq have ensured that the question of military intervention has remained at the top of the agenda for the international community. As the foremost international body, and the only one with the legal mandate to sanction military intervention in the affairs of other states, the United Nations has been the locus for many of these debates and it has become the focus for many suggestions of reform. However, as long as the member states of the UN itself have competing understandings of the very concepts of sovereignty, intervention, and even the role of the United Nations, consensus is going to be hard to come by. My perception is that multilateralism has become uncomfortable. And that is a worrisome development.

The recent experience of humanitarian interventions since 1990 and the collective history of the less powerful member states all contribute to a difference in the interpretation of the concept of sovereignty and the doctrine of intervention which I will examine here. The UN therefore has a split personality embodied in the different outlooks of its member states. Powerful states tend to view sovereignty flexibly while weaker ones tend to cling to notional political autonomy since it protects their interests against the more powerful ones and their own domestic populations. This situation in fact benefits no-one. As long as weaker states remain wedded to narrow legalistic definitions of sovereignty, they increase the likelihood that powerful ones will simply operate outside multilateral frameworks. And while powerful states ignore multilateral institutions they make the world more dangerous for themselves as well as everybody else.

Weaker states should become a little more pragmatic in their approach to sovereignty and more powerful states should become a little more consistent in the application of the doctrine of intervention if they wish to garner support. As I will show with reference to Latin America, a more pragmatic approach to the question of sovereignty could well bring benefits to regions suffering from endemic cross-border instability. Reconciling these dichotomous perspectives is in the interests of the international community and I will conclude by offering some suggestions here about how to proceed.

THE SPLIT PERSONALITY OF THE UNITED NATIONS

The UN Secretary General, Kofi Annan, in his report on "Prevention of Armed Conflict", as well as his previous report on the massacres of Srebrenica and Rwanda sparked the debate on the question of humanitarian intervention. The Secretary General has not minced words on this critical subject and has laid strong arguments that have prompted the international community to be conscious of the high stakes for humanity-and why the Council must resolutely rise to the challenge of humanitarian intervention.

Kofi Annan, urged the states and the citizens of the international community to recognize that “the collective interest is the national interest,” in moving towards a willingness to combat injustice in other countries. He stressed that this concept of intervention should “be based on legitimate and universal principles.” The problem for the Secretary General, the UN and those who would wish to see international consensus on this point is that for most nation states of the world, it is hard to agree on which are legitimate and universal principles acceptable for the violation of sovereignty when many feel they rarely enjoy its privileges in any case.

The United Nations, so often the arbiter of these disputes, has a split personality. On the one had, the five permanent members of the Security Council, UN hegemons, hold a rather flexible definition of sovereignty. This is squarely based on realpolitik and can expand to include the privileging of whichever norms suit them at any particular time. Meanwhile the majority of the UN General Assembly holds to an overly legalistic definition of sovereignty, which is increasingly outdated in the eyes of the superpower.

Thus, for example, the US can privilege national conventions and refuse to allow its troops to come under the jurisdiction of the International Criminal Court (ICC). The EU can unilaterally expand previous notions of jurisdiction by indicting leaders accused of human rights abuses. China can claim that human rights are a domestic issue and Russia can repress secessionists in Chechnya with impunity.

The UN hegemons can selectively apply national, regional or international standards while calling on other states to respect ‘internationally recognized norms’. Iraq was the ultimate irony - a war waged to enforce UN resolutions without the authority of the UN! The Independent Commission on Kosovo (Chaired by Richard Goldstone) called for a revision of applicable international law to make it more congruent with an international moral consensus. In the eyes of many Western nations, this commission may represent “an important step to bridge the gap between legality and legitimacy; between strict legal positivism and a common sense of moral justice”. However, the commission takes for granted the existence of such a moral consensus.

A troubling situation for the UN Security Council is that it cannot aspire to decide by itself what is legitimate and what is not. The increasing importance of the court of international opinion will make this situation more difficult. Future interventions authorized by the Security Council will be adopted-as usual-case by case and the national interests of its members will continue to prevail. Chechnya for example would appear to be a similar case to Bosnia - but the policy is different. International public opinion will help to mitigate these circumstances because of the power of the media and the very active participation of the NGO’s worldwide, but it takes a long time to change policies, and even more to redesign the international architecture.

Lloyd Axworthy, the former Canadian Foreign Minister has captured the essence of the debate: “In this new global context, people -- and not only the state -- are subjects of international relations. The security and basic rights of people -- not merely the absence of military conflict between states -- are fundamental to world stability and peace”. He anticipates the reactions of most of the members of the UN adding: “Those who have suffered under colonialism and other outside involvement in their countries might well be skeptical. However, preventing abuse, stopping atrocities and dealing with the impact of war are also their issues, pertaining to their realities and clearly affecting stability in their backyards.”

Lloyd Axworthy is right, in the sense that security has transnational dimensions and that all insecurity has cross border impacts. The new development of global public health interventions is a prime example. The World Health Organization travel ban to Singapore, Vietnam, Hong Kong and Toronto, Canada on account of the of the contagious disease “Severe Acute Respiratory Syndrome” (SARS), represented an unprecedented kind of intervention. China, the most outspoken advocate of inviolable sovereignty and non-intervention not only allowed the decision but also provided excellent cooperation. In this case the doctrine if human security and realpolitik coincided. It is tempting to read this situation purely in terms of realpolitik and a narrow definition of the national interest; that intervention was accepted simply because it fit in with the realist national interest of the government of China to receive assistance in a situation that might have spiraled out of its control and undermined its own domestic authority. However, the human security interests of the population were served. The WHO as a distinct agency has no political mandate, there was no risk of mission creep and the travel ban was clearly in the global public interest. This is really what the human security debate is about - persuading states that human security, national security and prosperity go hand in hand.

However, persuading some member states of the UN to abandon their legalistic conceptions of sovereignty is only half the battle. Part of the reason for the enduring myth of legal sovereignty despite the reality of economic inter-dependency is that it is one of the last vestiges of national pride and nominal autonomy. Another reason is that the doctrine of humanitarian intervention has been loosely invoked and selectively applied. If the ‘UN hegemons’ want Latin America, Africa and the Asian countries to move in their direction on the question of limiting sovereignty, they will need to at least demonstrate an awareness of their own-checkered history on this topic. Moreover, the international community will need to devote extra energy to the many other areas where the sovereign autonomy of poorer nations is severely curtailed in the international global economy such as world trade, and health.

AIDS is a global issue that needs global solutions in the shape of TRIPS and the access to essential medicines protocol. In this case, relinquishing some economic sovereignty in the form of patents on the part of the USA would clearly enhance the ability of poorer Governments to respond to domestic crises. Moreover, such action now can forestall more penetrating social and economic interventions later.

LATIN AMERICAN RELUCTANCE

A brief reading of the Latin American history can easily explain the reasons why Latin Americans have become so attached to a legalistic definition of sovereignty and averse to foreign meddling in their internal affairs. Latin America's 19th century experience is precisely what brought it to be an active defender and promoter of multilateralism. As it sees the multilateral system change in a way that perverts its very basic logic, how can it not be concerned?

The fragmentation of Latin America’s sovereignty has been a major characteristic of its history. According to the Cambridge History of Latin America from 1825 onwards Latin America has had 31 international wars and conflicts - including those of Nicaragua and El Salvador where the US, the Soviet Union and Cuba were involved. In addition there have been 65 major civil wars since 1810. Nevertheless the basic territorial borders have remained unchanged since the latter part of the 19th century.

The informal influence of Britain in Latin America until the first part of last century was more significant than even that of the US in the southern part of the region. The Empire did not advertise it like the US did with the Monroe Doctrine-but accomplished control of their economies as the chief foreign lender and buyer of public utilities and banks. The Empire imposed disciplines on governments to remain “credit worthy”- meaning sovereign debts should be honoured. In 1902 Venezuela found out the meaning of this policy when British, Germans and Italian gunboats shelled the Port of La Guaira demanding the payment of debts. This led President Theodore Roosevelt to invoke the Monroe Doctrine forcing the gunboats to withdraw.

Reacting to the attack on Venezuela, the Argentinean foreign minister, Luis Drago,appealed to the United States that a nation’s sovereignty could not be violated in order to force the collection of debts. This principle, known as the Drago doctrine has stood the test of time and contributed strongly to the application of the principle of non-intervention.

Currently, the most damaging limitation on Latin American sovereignty is the unfair export and production subsidies paid to US, European, and Japanese producers. The continuation of this practice in the age of the WTO, IMF sponsored liberalization and supposed ‘multilateralism’ is simply wrong. Three hundred billion dollars a year in subsidies is a monstrous intervention in our economic affairs; and one that profoundly affects nations’ sovereignty: Not even the Spanish nor the British Empires managed to inflict such a blow to Latin America, or such an effective check on our right to development.

Suspicions of the US and Europe are therefore understandably high in my region and, I suspect, in other regions of the world. The high profile cases of Kosovo and Iraq are the obvious occasions when hostility has been running high, and when multilateral agreement has been impossible because of divisions in the Security Council However, not every mission passed by the Security Council is seen as universally legitimate or evenacceptable to the rest of the world. Partly perhaps because of the creative approach to international law that is required in each case.

In the absence of agreed criteria, finding the legal mandate for an intervention that the Security Council has agreed on is not always straightforward. Three cases are instructive.

In Haiti as Professor Thomas M. Franck aptly described in his book “Recourse to Force”, redemptive use of legal fictions were used in international law to authorize the Security Council to use force to oust the Haitian military junta, contriving the fiction that, by causing a flow of refugees, the Junta was creating a threat to international peace and security such as to justify international collective action”. The reality was that the increasing flow of refugees to Florida was basically a domestic political problem for the United States. It is important to note that the racial card played an influential role in the Council’s action. The involvement of the Caribbean and African countries in the General Assembly as well as the Black Caucus of the US Congress undoubtedly were important factors. However, it is also interesting to note that neither the Latin American countries nor the Organization of American States were enthusiastic in getting the Security Council to send troops to rescue Haitian democracy.

Bosnia was a similar case, where the very tenets of international order had to be subverted to allow the intervention. In Bosnia the ‘international community’ promoted and blessed proposals for the intervention and partition of a UN member country. This plan had the backing of the Security Council but not the UN as a whole. The partition was based on ethnic considerations - similar to the apartheid principles, which the UN itself had helped to end in South Africa. In redefining and reinterpreting Bosnia’s sovereignty the Council sanctioned the objectives of the countries that had claimed “This is the hour of Europe.” The Security Council blessed these reprehensible positions and even assisted the party responsible for ethnic cleansing and genocide by not allowing the Bosnians to defend themselves - clearly violating their right to self-defense established in the Charter. The reality of intervention in fact involved compromising many of the ideals and the integrity of the institution authorizing the action.

Intervention in failed states is similarly flawed but in a less controversial way. Somalia, a totally collapsed state that was alternatively used during the Cold War by the two superpowers of the time was left abandoned in the 1990s with more weapons and ammunition than food and was destroying itself at a rapid pace. Thanks to international public opinion aroused by the media coverage of the tragedy the UN decided to get involved. However, there were no Somalia mission representatives at the UN to request a peacekeeping mission. This vacuum was filled by finding a former Third Secretary of the non-existent Somalia Mission to the UN who was asked to sign a letter requesting such a mission. In this case, there was no functioning government and yet, according to the procedures of the UN, a representative of the Government had to request a peacekeeping mission. Sovereignty in this instance was completely absent, merely an inconvenience. It is a demonstration of how fungible the concept of sovereignty can be.

Ultimately, what Bosnia and the failure to agree on Iraq in 2003 have shown is the pragmatic approach not just to sovereignty but also to international institutions of the permanent members, particularly, the US and Europe. In short, the mission defines the coalition. If the UN authorizes their chosen course of action, all well and good, if not, then alternative sources of legitimacy will be found. Case by case approaches, as those I have alluded to simply illustrate the existing lack of rules and the delegation of responsibility on the “willing and able”, who act according to their interest since nothing can force them to do otherwise.

Clearly this should change. Indeed it will have to change if the West wants support for a more consistent and permanent solution to the problem of humanitarian intervention; one that does not undermine the multilateral system every time intervention is practiced. However, while it is not ideal all the time, the pragmatic approach to sovereignty holds some lessons for weaker member states. Latin American nations in particular continue to cling to legalistic concepts of sovereignty, denouncing Western actions, vociferous in their support for the principles and procedures of the United Nations, which provide scant comfort.

THE COLOMBIA DILEMMA

This attitude is best exemplified by the problems in the Andean region. Insecurity in Colombia is a regional problem. The neighboring countries have failed to cooperate while simultaneously complaining of foreign intervention. The rhetoric of sovereignty is maintained by countries that have done little to deserve its protection, notably Venezuela. Geopolitics is at work here again.

There seems to be a concerted attempt from outside sources to legitimize an internal conflict in Colombia that does not have internal support. Colombia has a strong democratic history, a judicial tradition and a surprising lack of military coups. Neither does its extraordinary approach to its aborigine population seem to carry much weight with the international community. Human rights groups consistently criticize Colombia while next door an autocratic regime rules supreme.

Lieutenant Colonel Hugo Chavez's regime in Venezuela appears to be harboring and assisting Colombian narco-terrorists. The U.S Chief of Staff, General Richard Myers recently questioned whether Venezuela might be the Syria of the region, for supporting the FARC narco-terrorists. UN resolution 1373 imposes binding obligations on all states with the aim of combating terrorism in all its forms. It requires states to, among other things, deny all forms of financial support for terrorist groups and suppress the provision of safe haven, sustenance or support for terrorists.

In this context the case of Venezuela is interesting. On the face of it, one might draw the conclusion that sanctioning all state sponsors of terrorism would entail a cost and possible conflict of interests that stronger states are unwilling to bear. If this is the case it would be foolhardy and counter to the stated US national security policy. Taken together with the fact that Venezuela has received not even the slightest reproof for its behavior and something else must be at work. Oil.

It seems that nominal legal sovereignty in fact is replaced in this case by economic sovereignty. Amazingly, the Venezuelan regime enjoys autonomy or impunity on almost all fronts even though the regime’s actions are affecting Colombia’s sovereignty and security. The only thing that can explain Venezuela’s extraordinary and apparent bulletproof sovereignty is oil. It seems that as long as Chavez behaves as a reliable vendor of oil, his regime is safe. Venezuela- for the wrong reasons- appears to be the most sovereign country of the region.

THE WAY FORWARD

The United Nations has always enjoyed an uneasy role at the confluence of law and power. Geopolitics rules at the level of the Security Council and there is nothing the General Assembly can do about it short of ensuring reform - a goal member states should champion with all the more vigor than they have up till now. How nations where more than half of their people live in “extreme poverty”, can call themselves sovereign must become the first priority in the sovereignty debate.

Economic and political sovereignty are linked, as we have seen in the extreme case of Venezuela. Ironically now, especially in the company of a triumphalist superpower, the best way to increase the freedom of action of a given state is to give a little sovereignty away. The Europeans have learnt this lesson well. Other regional groupings such as ASEAN and SADC (Southern African Development Community) are similarly pooling sovereignty in several areas, principally economic but increasingly in the areas of internal security and military cooperation such as the African Union proposals for an African peacekeeping force.

There are practical benefits to such efforts on two levels. First, regional economic arrangements provide invaluable leverage in international negotiations such as in the WTO when confronting challenges from other nations - as the EU has found in its regular trade disputes with the USA. On another level, the challenges to security and sovereignty itself in the 21st century are increasingly issues of cross-border concern such as international crime, terrorism, drug trafficking, health, and environmental disasters.

The Latin American experience has generally been one of interpreting sovereignty in narrow terms. From the extreme Brazilian case when it defended its right to continue to preserve the slave trade (which it did until 1888) without the interference of the British Navy, to Cuba’s revolution claiming independence from the USA only to later subordinate significant aspects of its sovereignty to the Soviet Union. Latin America as a whole is not notable for having exercised its sovereignty much but rather for becoming fragmented as a result of clinging to notional autonomy while allowing itself to be subordinated to the realpolitik of Great Britain and then the United States.

Colombia now, as well as the unstable border area between Paraguay, Brazil and Argentina are security problems for the continent and should be addressed together, in unison. In addition the collective economic relationship of the region with the United States is an issue of concern to the region as a whole. Working together and negotiating as one, Latin American countries can achieve more than if they act alone. Trying to defend a notional concept of sovereignty only to be economically shackled and impotent in one’s own backyard is not a constructive option for the countries of the region. The reality of US influence must be faced and we must negotiate. It would not be an exaggeration to paraphrase that the 'manifest destiny' of Latin America is with the United States.

Latin America must understand that the very basis of multilateralism is that sovereignty can only be reinforced by collective and selective renunciations, to the benefit of common goals and shared values. Sadly Latin America does not seem to accept such a premise. In my judgment, some retrograde and obtuse group of nationalist states are simply watching the rules change: not as might be expected, towards the recognition of new risks, to clearer definitions of responsibility and towards more committed action, but towards, selective action in a framework of committed inaction.

Accepting the limits of our autonomy and finding alternative means of influence and organization to secure our common interests is the way forward, rather than retreating to increasingly outdated positions of ‘sovereign’ isolationism.

A loose definition of a moral consensus is better than none. (After all, if the U.S wants to invade a country it will in any case.) And it could provide a much-needed framework the next time there is a breakdown in security in our own neighborhood. Such a framework could well be to the regions’ advantage if, as the experience of Colombia shows, the neighboring countries are unable to come together to manage the problem themselves.

After Theodore Roosevelt invoked the Monroe Doctrine on account of Venezuela in 1902, he said: ”If we intend to say hands off to the powers of Europe then sooner or later we must keep order (in the Americas) ourselves.” And true to his words a few months later Roosevelt with the support of U.S naval forces promoted an uprising against the Colombian government in its province of Panama City- acting, paradoxically, under the Bidlack-Mallarino Treaty of 1846 between the United States and Colombia-which ironically provided that United States forces could intervene in the event of disorder on the isthmus to guarantee Colombian sovereignty. Colombia lost Panama. The US built its Canal; and it became clear that the Monroe Doctrine was meant to protect Latin America’s sovereignty from insiders, not from outsiders.

The United States and Europe have a pragmatic approach to sovereignty, one that does not always benefit the poorer nations of the world. If we want to move closer to the global 'moral consensus' called for by the Goldstone Commission on Kosovo, the UN hegemons will need to demonstrate a greater commitment to the UN charter and to consistency in the application of the humanitarian doctrine. But as the example of Latin America here shows, the weaker member states should recognize that it is in their interests to be a little more flexible too and to co-operate more if they are to have a say in the unfolding of the Monroe Doctrine around the world.

Diego E. Arria is the former Ambassador of Venezuela. In November 2003, General Kofi Annan has named to Diego E. Arria the Special Advisor in the General Office of the secretary, and Assistant Secretary.