Kawamura Yukio

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The Legitimacy of Humanitarian Intervention inInternational Society of The 21st Century21	Yukio Kawamura	  	 !"#$%"&'() 1990*+,- ./01234	56789(:;#%<#=>?' @AB4C=DE?9) FGBHIJC%KLC=MN?"OH 	P 21Q RS'=TAA('UV#$O"WX'Y'()Z[\]Q^_"=`a:bcOdV ef[\]Qg hi=jkbcl) m$no\.mpqrDEst uvwxyz{|}~%?'I%~	P#$='  =9SA('(MN=&9)  :..=S UVnO:O  =PY.nA('M;=9) F?' ¡P=¢£:X¤O¥1WX'(VB¦§P¨©WX'(#$§BH %ª«P¬­:®Y4¯=$9°Pl)I. IntroductionThe United Nations faces a very di$cult challenge in terms of the continuity basisfor making peace-building and peace-keeping in conﬂict areas. Now the internationalorganization must create a new international system for stability and order by coopera-tion on multilateral basis.The issue of humanitarian intervention has generated one of the most mainconcerns in international relations over the past decade, among both theorists andpractitioners. The debate is the alleged tension between the principle of the statesovereignty, a deﬁning pillar of the United Nations system and international law, as wellas evolving international norms related to human rights and the use of force.The question of intervention on humanitarian basis in the case of internationalconﬂict also has been a very controversial issue in international law societies. Forexample, European scholar groups have dominated the debate in considering to increateseveral conditions in order to clear the decision for intervention on a humanitarianbasis.In the post-Cold War era, debates regarding humanitarian intervention have be-come more frequent and more public, and the issue has moved to the very centre of theinternational political agenda.The purpose of this article is to address a comprehensive overview of the keyconcepts central to this debate, an analysis of the major sources of controversy, and anexploration of key criteria studies which highlight the legitimacy of humanitarian ±²³}}´µ¶µ·¸¹º»¼Journal of Asia-Paciﬁc Studies (Waseda University) No. 16 (May 2011) 95 intervention in international society.II. The Existing Deﬁnitions of Humanitarian InterventionHumanitarian intervention necessarily challenges the statist bias in internationalrelations and international law, and as states have assumed more formal legal powersand entitlements, the tension between the rights of states and the rights of the individu-als within them has increased.The use of an essentially positive adjective humanitarian to describe an interven-tion largely determines the parameters within which the evaluation of this interventioncan proceed. An intervening party that declares its actions to be “humanitarian” isexplicitly attempting to legitimize these actions as a matter of moral, rather than selﬁshand strategic, and necessary actions on international order.The recent shifting conception of international order had a various impacts on thegovernance of the international security and humanitarian orders. There was a changein the prevailing belief regarding what kinds of arrangements would be the bestmaintain the stability of international society. The international humanitarian order,almost by deﬁnition, divided the world between those who were too weak to helpthemselves and who those now had responsibilities to save them.1In the reﬂection of such complexity on the area of international order, the Interna-tional Commission on Intervention and State Sovereignty (ICISS) has discussed andagreed the following deﬁnition on humanitarian intervention:[action taken against a state or its leaders, without its or their consent, for purposeswhich are claimed to be humanitarian or protective . . . including all forms of preventivemeasures, and coercive intervention measuressanctions and criminal prosecutionsfalling short of military intervention]2For the implementation of the pragmatic approach based on the above-mentioneddeﬁnition by the ICSS, European scholar groups have interpreted that military actionshould be also prescribed as follows:[Military action taken by a state, group of states or nonstate actor, in the territoryof another state, without that state’s consent, which is justiﬁed, to some signiﬁcantextent, by a humanitarian concern for the citizens of the host state.]3These composite deﬁnitions are clearly not a legal deﬁnition, nor is it withoutcontention, but it serves to di#erentiate humanitarian intervention’ from humanitar-ian action’ and strategic military intervention’, and thus signiﬁcantly narrows theparameters of enquiry.4III. Un Charter: Articles on Humanitarian Intervention and The Security CouncilThe former Secretary General, Boutros-Ghali described in the report of “Agenda forPeace” issued in 1992; “The authority of the United Nations system to act in the ﬁeld[human rights] would rest on the consensus that social peace. There is an obviousconnection between democratic practicessuch as the rule of true peace and security inany new and stable political order.”5 There has always been tension between the UN’srole as representative of sovereign states and its role as representative of peoples andindividuals who have universal rights and deserve the protection of internationalcommunity.Yukio Kawamura 96 For most of its history, the United Nations has resolved the tension in favor of statesovereignty, but the signiﬁcance of these reports advocate a change in the direction ofgreater balance for implementing of international intervention.The United Nations is the only international organization that approximates uni-versality and is invested by states as having some degree of moral and universalauthority.The facts that the Security Council of the United Nations has the power to authorizeinterventions, and has often done so since 1990, have contributed to a sense that theSecurity Council actually matters.6The long standing question of the Security Council composition has also beena#ected but its practice of intervention. There have been accusations that there hasbeen selectivity indecisions about intervention due to the right of “veto” of the ﬁvepermanent member states.7 The right of such “veto” might be excluded from thedecision matter of intervention on humanitarian basis. It has sometimes proved di$cultto reach decisions in a Security Council with ﬁfteen members, as well as ﬁve nucleararmed member states with veto. For example, in Bosnia in during 19925 and inRwanda in 1994 were not so much lack of capacity of the Security Council to reachdecisions for humanitarian intervention, however, it is likely that it would be harder toachieve such results in an enlarged Security Council in the future. This suggests that ifthe much-needed expansion of the Security Council does take place, it will have to beaccompanied by other changes to improve its capacity, and of its member states, fortaking and implementing decisions promptly.8At the center of the freeze-frame is Article 2(4) of the UN Charter, which prohibitsstates’ recourse to force except in self-defense against attack or with prior authorizationby the Security Council. Furthermore, humanitarian intervention is additionally di#e-rentiated from what may be described as strategic military intervention. In this respect,the UN charter is clear about the prohibition of use of force in international orders. Thisprinciple ﬁnds its clearest expression in Article 2(4): “All members shall refrain in theirinternational relations from the threat or use of force against the territorial integritiesor political independence of any state, or in any other manner inconsistent with thepurpose of the United Nations.” At the same time, the Secretary-General also stressedthe Security Council’s primary responsibility for maintaining peace and security andthe urgent need for uniﬁed, e#ective Council action in defense of human rights in thefuture.9The principal of UN organs deal with, and try to diminish the risk of war andincidence of violence on human rights. To this end, the United Nations have tried toimplement the processes and procedures spelled out in the Charter and, in doing so,adjust and adapt its text to respond to the exigencies of each challenge to betterinternational order.Under Article 39 of the UN Charter, the Security Council has legal authority to“determine the existence of any threat to the peace, breach of the peace, or act ofaggression” and to decide on appropriate measures “to maintain or restore internationalpeace and security.” Moreover, the drafters of the UN Charter declined to limit orconstrain the Council’s authority by deﬁning these terms. Instead, after considerablediscussion, they deliberately left the terms “threat to the peace, breach of the peace, orThe Legitimacy of Humanitarian Intervention in International Society of The 21st Century 97 act of aggression” undeﬁned to give the Security Council ﬂexibility in responding tonew and unforeseen circumstances. The notion of “threat to the peace” is now inter-preted as including essentially internal situation that might degenerate into an interna-tional conﬂict.10Accordingly, the interpretation for the matter of “threat to the peace” recognizedunder Article39 of UN Charter could be more ﬂexible for implementation of humanitar-ian intervention.IV. New Criteria for Decision Making on Humanitarian InterventionHumanitarian activity after the 1990s suggests that certain claims particularlyhuman rights claims, now trump sovereignty and legitimatize intervention in ways notpreviously accepted.11The contemporary debates including humanitarian intervention has tried to estab-lished criteria for decision making in the Security Council. In addition, in order tocodify the criteria to unilateral humanitarian intervention, the United Nations hasdiscussed and can authorize humanitarian intervention to overcome the problems withthe use of Chapter 7 of the UN Charter. Since the beginning of the 21st century, theimportance of the legitimacy of humanitarian intervention in international society hasbeen emphasized.For example, in the High Level Group Meeting of the United Nations has beendiscussed and concentrated the following ﬁve basic criteria on the implementation forthe humanitarian intervention:1. Seriousness of threat2. Proper purpose3. Last resort4. Proportional means5. Balance of consequences12Subsequently, the UN High Level Panel on Threats, Challenges and Change out-lined the above “ﬁve basic criteria of legitimacy” which they argued should guide for theSecurity Council. The criteria reﬂect many of the sets of criteria previously discussed.13The UN Panel acknowledged that these criteria did not constitute agreed conclusionswith push-button predictability, and o#ered them as means to maximize the possibilityof achieving Security Council consensus around when it is appropriate or not the usecoercive action’.14The UN Charter gives the Security Council signiﬁcant powers but does not outlinehow the e#ectiveness of the Security Council should be measured.The balance between state sovereignty and individual right can be maintained bypaying close attention to the set of principles known as just war doctrine. Theseprinciples can help political leaders to decide by answering the following questions,when to use military force against sovereign for the purpose state in the service ofhuman rights.1. Is the intervention intended to help the needy population ?Yukio Kawamura 98 2. Has the UN or (less desirably) another intergovernmental body authorized theintervention ?3. Is military force the last resort, all reasonable alternatives having been tried orconsidered ?4. Is the intervention proportionate to the need ?5. Is there a reasonable chance of success ?15As to the above-questions in considering the nature of the relationship betweenhuman rights and the state, the logical steps that put individual right before state rightand allow intervention when a state does fulﬁll its duty to protect its citizens should beconcerned.V. ConclusionThe matter of humanitarian intervention is the most important means of address-ing fundamental problem of international organization on the relations between lawand power.As interesting fact is that for the past several years, international legal scholarshave referred to the concept of legitimacy not only in those articles analyzing thelegitimacy of the Security Council, but also in those discussing the legality andconstitutionality of various activities by the Security Council. It has increasinglystepped into legally grey areas from the perspective of the UN Charter. Increasingreferences to the concept of legitimacy in legal literature would be a clear indicationthat the legality or constitutionality of various activities by the Security Council isambiguous or fragile at best.16In conclusion, we have focused the existing relevant deﬁnition of humanitarianintervention prescribing under the ICISS. We have also reviewed the question ofinterpretation under the relative articles of UN Charter specially wording of Article 39.As pointed, the notion of “threat to the peace” is currently interpreted as includingessentially internal situation that might degenerate into international conﬂict. We havesuggested, to avoid the abuse of “the right of veto” by ﬁve permanent members of theSecurity Council, the matter of intervention on humanitarian basis should be decidedmajority bases of Security Council without exercising of veto power. Finally, we havediscussed the new criteria as mentioned in section four which presented by UN HighLevel Group meeting and recent idea to promote the faster discussion and decisionmaking for humanitarian intervention in the legitimacy by the United Nations.Notes1. Barnett, Michael N. “The International Humanitarian Order,” Routledge Publisher, 2010, p 8.2. International Commission on Intervention and State Sovereignty (2001), TheResponsibility to Protect,p 8, http://www.iciss.ca/pdf3. Hehir, Aidan, “Humanitarian Intervention: An Introduction,” Palgrave MacMillan, 2010, p 20.4. Ibid, p 20.5. Boutros Boutros-Ghali, “An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping,UN Documents,” A/47/277-S/24111, United Nations, 1992. para176. Welsh, Jennifer M. “Humanitarian Intervention and International Relations,” Oxford University Press,2006, p 90.The Legitimacy of Humanitarian Intervention in International Society of The 21st Century 99 7. The right of “veto” holding by p-5 U. S. A, Russia, China, U. K and France8. Welsh, supra, p 91.9. Holzgrefe, J. L. and Keohane, Robert O. “Humanitarian Intervention: Ethical, Legal, and PoliticalDilemmas,” Cambridge University Press, 2003, p 23810. Cociand, Jenn Marc and Heiskanen Veijo, “The Legitimacy of International Organization”, UnitedNation University Press, 2001, p 315.11. Finnemore, Martha “The Purpose of Intervention,” Cornell University Press, 2003, p 2112. The Report of UN High Level Panel on Threats, Challenges and Change, UN Document A/59/565, 4December 2004, pp. 575813. Hehir, supra, p 10014. Seybolt, Taylor B. “Humanitarian Military Intervention: The Conditions for Success and Failure,”Oxford University Press, 2008, p26815. Ramsbofthm, O. and Woodhouse, T., Humanitarian Intervention n Contemporary Conﬂict, Policy Press,UK, 1996 p 2316. Ibid. p 73References1. Buzan, Barry. People, States & Fear: An Agenda for International Security Studies in the Post-Cold War Era.Second Ed. (Colchester: ECPR Press, 2007).2. Finnemore, Martha. The Purpose of Intervention: Changing Beliefs about the Use of Force. (New York:Cornell University Press, 2003).3. Hehir, Aidan. Humanitarian Intervention: An Introduction. (Hampshire: Palgrave Macmillan, 2010).4. Ho#man, Peter J. and Thomas G. Weiss. Sword and Salve: Confronting New Wars and HumanitarianCrises. (Lanham, Maryland: Rowman & Littleﬁeld Publishers, 2004).5. Holzgrefe, J. L. and Robert O. Keohane. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas.(Cambridge: Cambridge University Press, 2003).6. Jackson, Robert. The Global Covenant: Human Conduct in a World of States. (New York: OxfordUniversity Press, 2000).7. Ramcharan, Bertrand G. Preventive Diplomacy at the UN. (Bloomington: Indiana University Press, 2008).8. Sandel, Michael J. Justice: What’s the Right Thing to Do. (London: Penguin Books, 2010).9. Schellnhuber, Hans Joachim, and Mario Molina, and Nicholas Stern, Veronika Huber, and SusanneKadner Ed. Global Sustainability. (Cambridge: Cambridge University Press, 2010).10. Seybolt, Taylor B. Humanitarian Military Intervention: The Conditions for Success and Failure. (New York:Oxford University Press, 2008).11. Shelton, Dinah Ed. Commitment and Compliance: The Role of Non-Binding Norms in the InternationalLegal System. (New York: Oxford University Press, 2000).12. United Nations O$ce for the Coordination of Humanitarian A#airs. The Humanitarian Decade: VolumeIPanel Discussion on the Occasion of the Tenth Anniversary of General Assembly Resolution 46/182.2004.13. United Nations O$ce for the Coordination of Humanitarian A#airs. The Humanitarian Decade: VolumeIIGeneral Assembly Resolution 46/182: The Development of Practice, Principles and the HumanitarianFramework. 2004.14. Walker, R. B. J. Inside/Outside: International Relations as Political Theory. (Cambridge: CambridgeUniversity Press, 1993).15. Weiss, Thomas G. Military-Civilian Interactions: Intervening in Humanitarian Crises. (Lanham, Maryland:Rowman & Littleﬁeld Publishers, 1999).16. Weissman Fabrice Ed. In the Shadow of Just Wars’: Violence, Politics and Humanitarian Action. (NewYork: Cornell University Press, 2004).17. Welsh, Jennifer M. Ed. Humanitarian Intervention and International Relations. (New York: Oxford Univer-sity Press, 2006).Yukio Kawamura100

「21世紀の国際社会における人道的介入の正当性」

Kawamura, Yukio

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The Legitimacy of Humanitarian Intervention in International Society of The 21st Century

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「21世紀の国際社会における人道的介入の正当性」

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