A Gulf in the Charter

By B.G. Ramcharan | 1991-09-01 12:00:00

Momentous changes are occurring in international affairs in the last decade of the twentieth century. Nations and peoples are coming to realize that they must join together in a common endeavour to promote human welfare. Human beings are increasingly concerned about the fate of their fellow human beings elsewhere. Governments are being held more and more accountable to their people in a process that is witnessing the vindication of the principles of democratic government, the rule of law and respect for human rights. And yet we are still caught in the web of archaic, outworn and outdated tenets of international law. The question that presents itself for examination is: shall the law serve the interest of the people or shall it be used to cloak their oppression? This question occurs with particular poignancy when we come to consider the relationship between the principles of sovereignty and non-interference on the one hand, and the principles of humanity and of international concern for human rights on the other.

The international order introduced by the United Nations charter rests on seven fundamental principles including the following:

[a] The principle of equal rights and self-determination of peoples,

b] The principle of the sovereign equality of States;

[c] The duty not to intervene in matters within the domestic

jurisdiction of any State;

[d] The principle that states shall fulfil in good faith the obligations assumed by them in accordance with the charter.

The principle of non-intervention is provided for in Article 2, paragraph 7 of the charter. It was elaborated upon as follows in the Declaration on the principles of International Law Concerning Friendly Relations and co-operation Among States [1970]:

[a] No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state.

[b] No State may use or encourage the use of economic, political or any other type of measures to coerce another State.

[c] The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the

principle of non-intervention.

[d] Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

The principle of humanity is solidly entrenched in international law and has received reaffirmation in the jurisprudence of the International Court of Justice and in the practice of international humanitarian organizations. The International Court of Justice has deemed as a general and well-recognized principle of international law "elementary considerations of humanity, even more exacting in peace than in war". The principle of humanity indicates a sentiment of active goodwill towards humankind. It impels us to ensure that the innocent victims of natural or manmade disasters are provided with nutritional and material relief, with medical assistance, and with protection against arbitrary deprivations of basic human rights. The principle of humanity provides the basis for insisting that the international humanitarian agencies should have access to people in distress so as to be able to assist them in a neutral and objective manner.

The time has come for the international community to undertake a reassessment of the implications of the coexistence of the principles of sovereignty and non-intervention on the one hand, and the principles of humanity and of international concern for human rights on the other. Member states of the United Nations have undertaken solemn commitments to act, individually and jointly to uphold respect for human rights and fundamental freedoms without discrimination. Furthermore, it is one of the express purposes of the United Nations to achieve international co-operation in solving international problems of a humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all. Whenever there is a tension between the principles of sovereignty and humanity, contemporary international morality and legality would demand that precedence be given to the dictates of humanity. Whenever the conscience of the international community is aroused over situations of human suffering, or of gross violations of human rights, considerations of sovereignty and non-intervention must yield to legitimate measures of international concern and scrutiny. The principle of accountability is also directly relevant here. And it is for the organs of the international community, as represented at the United Nations, rather than for individual states alone, to determine the scope of legitimate international concern.

Public opinion simply does not understand when the United Nations is unable to act quickly and resolutely in situations where large numbers of people are exposed to danger, are being made to suffer hardships or cruelties, or are undergoing grievous violations of human rights. The international ethic is changing on this issue at the governmental as well as the non-governmental level. It has become firmly entrenched in international law and practice that:

[a] The United Nations may discuss any situation of international concern.

[b] It may gather facts about such a situation.

[c] It may endeavour to establish a dialogue with member states about such a situation.

[d] It may act for the protection of persons in danger in situations where:

-there is a threat to, or breach of international peace and security;

-there is a consistent pattern of reliably attested gross violations of human rights;

-there is extensive human suffering generating widespread international concern.

It seems that international community is now at a crystallizing moment in terms both of conceptual advances and operational innovations. One should henceforth proceed on the basis of the following propositions:

Sovereignty is abused when it seeks to shield gross violations of human rights or grievous human suffering.
The principle of non-intervention cannot be used to prevent legitimate international concern for human rights.
The balance between the principle of non-intervention and the principle of international concern for human rights should be struck in favour of the latter.
The international community has a duty to act for the relief on human suffering.

The forms of protection employed to date have been: the designation of fact-finding bodies; the establishment of a United Nations presence; the interposition of United Nations observers, guards, or peace-keeping type forces. Several new methods have been offered by authoritative UN watchers which may provide guidance for the future evolution of UN humanitarian action

a] The first is the concept of the UN guards contingent, which resulted in the recent deployment of lightly armed guards around several humanitarian centres in northern Iraq.

In their political Declaration, the London Economic Summit noted "that the urgent and overwhelming nature of the humanitarian problem in Iraq caused by violent oppression by the government required exceptional action by the international community, following United Nations Security Council Resolution 688. We urge the UN and its affiliated agencies to be ready to consider similar action in the future if the circumstances require it. The international community cannot stand idly by in cases where widespread human suffering from famine, war, oppression, refugee flows, disease or flood reaches urgent and overwhelming proportions."

[b] Other proposals for an increased role of the United Nations in humanitarian matters focus on modified versions of UN peace-keeping forces. Some envisage the new humanitarian peace-keeping force as a sort of rapid-reaction force, comprised of national units set aside in advance of any specific operation.

[c] A third proposal that has received attention is the suggestion for the creation of a "humanitarian co-ordinator" who would oversee all UN humanitarian operations. The London Economic Summit, for example, suggested "the designation of a high-level official, answerable only to the United Nations Secretary General, who would be responsible for directing a prompt and well-integrated international response to emergencies, and for co-ordinating the relevant UN appeals."

B.G. Ramcharan is adjunct professor at the School of International Affairs at Columbia University. He has served in the U.N. for almost two decades. The views expressed are those of the author in his personal capacity.