Canadian Council of International Law
1999 Annual Conference
"From Territorial Sovereignty to Human Security"
Mr. Hans Corell
Under-Secretary-General for Legal Affairs
The Legal Counsel of the United Nations
Chateau Laurier Hotel, Ottawa
Friday, 29 October 1999
First of all, let me thank you warmly for the invitation to attend this Congress and to speak to you tonight. I recall with great pleasure my first Congress of the Canadian Council of International Law five years ago, only a few months after I had taken up my position as the Legal Counsel of the United Nations. It is indeed a great pleasure to be among you again.
The work of the national associations on international law is greatly appreciated by many. The efforts that this Council and similar organizations around the world make in spreading knowledge of and creating respect for international law is an important contribution to the rule of law in international relations.
You have chosen to devote this annual Conference to the topic "From Territorial Sovereignty to Human Security". On the occasion of my latest visit to you, I had the opportunity of following the whole Conference. However, this time the current exigencies of the work at the UN Headquarters made it impossible for me to be away for such a long time. Therefore, I cannot now profit from the knowledge that I would have acquired, had I participated in the Conference from the outset.
You have had panels on the topic itself: "From Territorial Sovereignty to Human Security". You have discussed struggle against transnational and international crimes. You have heard interventions on international environmental law, on trafficking in women, on indirect or foreign sense jurisdiction, on the Convention on the Rights of the Child, on genetically modified food and its implications for international trade law, on failed States, on international humanitarian law.
Needless to say, it is impossible to cover all these different aspects in a speech that should be something of a summing up of the Conference. Against this background, I have chosen to speak on the topic of the Conference from my United Nations perspective. I stress my perspective, since I have to make the customary disclaimer: what I will say tonight represents my own views and does not necessarily reflect the opinion of the United Nations. This disclaimer is of particular importance on this occasion, since the topic is of a very sensitive nature. In addition, it is important to put on record in this regard that when I accepted your invitation to participate in the Congress in early August, little did I know that "humanitarian intervention" would become the main topic of the General Debate in the UN General Assembly only a few weeks later.
When I saw the theme of the Conference -- "From Territorial Sovereignty to Human Security" -- I was intrigued. It could be understood in many different ways. In particular, it would seem to suggest that the two concepts – "territorial sovereignty" and "human security" – are irreconcilable; that you move from one thing to another. For my part, I decided to look at the topic in a different perspective; that the two concepts are, in fact, compatible.
I will address the topic in four parts: (1) the concepts; (2) the current debate; (3) the role of the United Nations with special focus on the latest events; and (4) how do we reconcile the two concepts?
With respect to the concepts, I am sure that the definition of "territorial sovereignty" has been touched upon by many during the Conference. According to the traditional view, "territorial sovereignty" is understood as comprising the power of a State to exercise supreme authority over all persons and things within its territory. However, today the picture is far more complex. First of all, as has been long accepted, "territorial sovereignty" does not give to the State an unlimited freedom of action. The old Westphalian notion has undergone a dramatic change in later years.
In the Charter of the United Nations, Article 2, paragraph 7 may be viewed as a basic provision reflecting the concept of "territorial sovereignty". There are also other provisions in the Charter that focus on sovereignty, such as Article 2, paragraph 1 on the sovereign equality of States, and Article 2, paragraph 4 on prohibition of the threat or use of force against the territorial integrity or political independence of any State unless pursuant to the Charter. However, these provisions cannot be read in isolation from other provisions of the Charter. I refer in particular to those reaffirming the faith of the United Nations in fundamental human rights, that appear in the preamble, and those calling for the respect for human rights and fundamental freedoms for all without any distinction, that are found among the purposes in Article 1, paragraph 3.
In this context, it is also important to note the Friendly Relations Declaration of 1970. This declaration focuses on principles of international law concerning friendly relations and cooperation among States in accordance with the Charter of the United Nations. Among its provisions the following are of particular interest to our topic: the principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter; the duty of States to cooperate with one another, in accordance with the Charter; and the principle of equal rights and self-determination of peoples. However, the Declaration also contains provisions in the interest of the international community regarding the protection of individuals.
Doctrine contains many attempts to clarify the concept of "territorial sovereignty", but it is interesting to note that a clear agreed on definition is not emerging. Also, new concepts have appeared in the discussion, such as "sovereignty of peoples" and even "sovereignty of the individual". However, the important thing is that sovereignty is under discussion -- I will revert to this shortly -- and that the traditional concept is being disputed. As one writer (Koskenniemi) puts it, it is impossible to define sovereignty in such a manner as to contain our present perception of the State’s full subjective freedom and that of its objective submission to restraints to such freedom.
Let us now look at the other concept: "human security". That is a very broad concept indeed, and it would be meaningless to try to define it in more precise terms. For the purpose of this discussion I would limit it to the field of human rights and humanitarian law.
One important aspect in this context is that the development in this particular field of international law has mainly occurred after the adoption of the Charter of the United Nations. The Charter must always be construed in light of new circumstances, and, therefore, we are duty-bound to take into consideration the law that has emerged since its adoption more than fifty years ago. Furthermore, respect for human rights is central to the mandate of the United Nations. As a matter of fact, I fail to see that the ideals of the Charter can be fulfilled without respect for human rights and the development of national societies under the rule of law.
Central to the development in this field are the Universal Declaration on Human Rights of 1948 and the two International Covenants of 1966, the one on Economic, Social and Cultural Rights and the one on Civil and Political Rights. Also other instruments exist: to protect the rights of the child; to protect the rights of women; to prevent racial discrimination; to prevent torture; to protect minorities; and to promote and protect cultural diversity. In this auditorium I need not make further references; to you the picture should be clear immediately.
With respect to humanitarian law, suffice it to mention the 1949 Geneva Conventions and its two Additional Protocols of 1977.
All these international instruments are designed to protect individuals in general, mainly in the relationship between the individual and the State, and individuals in situations of war and armed conflict.
For the purposes of our discussion it is important to note how these instruments are meant to function: they create certain common standards, and their purpose is to assure that these standards are observed at the national level. The obligation is on sovereign States, freely undertaken by the same States. The obligation is that these States shall ascertain that the rights that are laid down in the instruments are observed at the national level, i.e. within the territory over which the States are sovereign. Obligations under humanitarian law are of course also directed to individuals; the statutes of the two international criminal tribunals have made this abundantly clear.
At the same time, respect for human rights and fundamental freedoms and indeed respect for humanitarian law, has now become a matter of growing international concern. This development means that the international legal order has become more comprehensive than in the past.
It is also interesting to note that gradually, the institutions and mechanisms that have been established to promote and protect human rights have become more active and influential. I mention in particular in the UN context: the working groups and the special rapporteurs under the Commission on Human Rights; the human rights committees under various conventions; the High Commissioner for Human Rights; and the High Commissioner for Refugees.
As late as 9 December 1998, the General Assembly of the United Nations adopted resolution 53/144. This resolution contains the "Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms". The Declaration reiterates that the prime responsibility for the promotion and the protection of human rights lies with the State. However, it also recognizes the right of individuals, groups and associations to promote human rights at the national and the international level.
An important development in later years is also the establishment of the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda. The adoption on 17 July 1998 of the Rome Statute of the International Criminal Court was a true landmark in the history of international law. These Tribunals are exercising (or in the case of the ICC will exercise) jurisdiction over matters that are traditionally within the competence of States. In this auditorium it is with particular pleasure that I recognize the important contribution to the creation of the ICC, made by Ambassador Philippe Kirsch of Canada; he was Chairman of the Committee of the Whole at the Rome Conference.
All this development that I have mentioned is designed to enhance one of the two concepts that this Conference has discussed, namely "human security" as I defined it a few moments ago.
I have now come to my second part: The current debate. I am certain that you have noticed the rather intense debate that has taken place lately. The Secretary-General of the United Nations, in his annual report this year stated (para. 56) that "the international community must be prepared to engage politically – and if necessary militarily – to contain, manage and ultimately resolve conflicts that have got out of hand. This will require a better functioning collective security system than exists at the moment. It will require, above all, a greater willingness to intervene to prevent gross violations of human rights".
The Secretary-General also drew attention to the case of Kosovo, where the Security Council was precluded from intervening because of two different viewpoints (para. 66): on the one hand the view held by those who stressed inviolability of State sovereignty and on the other hand the view held by those who stressed the moral imperative to act forcefully in the face of gross violations of human rights.
In presenting his report before the General Assembly on 20 September 1999, the Secretary-General was even more outspoken. He said:
"The Charter is a living document, whose high principles still define the aspirations of peoples everywhere for lives of peace, dignity and development. Nothing in the Charter precludes a recognition that there are rights beyond borders. Indeed, its very letter and spirit are the affirmation of those fundamental human rights. In short, it is not the deficiencies of the Charter which have brought us to this juncture, but our difficulties in applying its principles to a new era; an era when strictly traditional notions of sovereignty can no longer do justice to the aspirations of peoples everywhere to attain their fundamental freedoms."
In his statement he also pointed to the dilemma posed by State sovereignty and the need to intervene forcefully, if necessary. In summing up, the Secretary-General stated among other things:
"Just as we have learned that the world cannot stand aside when gross and systematic violations of human rights are taking place, so we have also learned that intervention must be based on legitimate and universal principles if it is to enjoy the sustained support of the world’s peoples. This developing international norm in favor of intervention to protect civilians from wholesale slaughter will no doubt continue to pose profound challenges to the international community."
As intended by the Secretary-General, the report and
his statement caused a vivid debate in the General Assembly. Its President,
His Excellency Dr. Theo-Ben Gurirab of Namibia, summed up the discussion
in the General Debate and concluded that most delegates were of the opinion
that the subject of humanitarian intervention needed to be discussed in
depth during the current session of the General Assembly, for example, during
the consideration of the Report of the Secretary-General.
Indeed, the debate continued in four plenary meetings of the General Assembly between 6 and 11 October 1999. In this debate, most speakers reiterated their positions stated during the General Debate. Again, mostly along a north-south divide, three positions became apparent. At the extremes, strong advocates of immediate intervention in situations of grave human rights violations contrasted in their views with those who defended national sovereignty as a fundamental principle that could not be challenged. Most speakers aligned themselves somewhere between these two positions. Those speakers acknowledged to varying degrees the need to react in cases of gross human rights violations. However, they also highlighted the need to define clear and consistent criteria to ensure that the humanitarian intervention doctrine would be equally applied. They emphasized that the discussion of this issue must be based on the Charter and norms of international relations. It should be noted, however, that among the speakers in the debate, many expressed themselves in more or less negative terms with respect to humanitarian intervention.
The issue is also being debated in the media, and here many different views have been expressed. There are those who favour robust action with or without Security Council approval and those who warn against destabilizing the present system requiring Security Council approval. Many writers have also warned against the consequences of a demonstrated willingness to intervene in all kinds of situations where a population of a particular region or province demands independence. Expressions like "voting is good, except when it guarantees war" and "the more one stands up for the peoples’ right to self-determination, the more conflicts will erupt" have appeared. The subject of this year’s The Times Law Awards is – "Crimes against humanity: who has the right to intervene?"
Now to my third part: The role of the United Nations with special focus on the latest events. I will focus on the situation in Kosovo and East Timor as the most recent examples where "territorial sovereignty" and "human security" are involved.
With respect to Kosovo, Security Council resolution 1244 (1999) of 10 June 1999, basically requires that the United Nations shall govern Kosovo. The resolution is very clear about the sovereignty and territorial integrity of the Federal Republic Yugoslavia. This is something that must be respected, and in the United Nations Legal Office we are constantly pointing to this very important element in the resolution. However, in reading the operative paragraphs of the resolution, it becomes clear that the tasks entrusted to the Organization cannot be fullfilled, unless the United Nations Interim Administration Mission in Kosovo (UNMIK) has full executive as well as legislative power.
Resolution 1244 puts heavy demands on the Organization. First, there is the difference between deploying a military force and a civil administration. A military force is in essence organized beforehand. It is trained to deploy in different circumstances and it is commanded through a known chain of command where people in many cases also know each other personally. To deploy a civilian mission is a completely different matter. There are no stand-by battalions of civil servants at the national level waiting to be deployed in a mission area. The recruitment process is therefore a time-consuming and difficult exercise. Also, the rules under which the Organization operates, including on recruitment, and the restrictions on the employment of gratis personnel, make the deployment a complex operation. In addition, tasks entrusted to a civil administration are much more multi-faceted and complex than the tasks of a military operation (although, admittedly, the tasks of the multinational forces both in Kosovo and East Timor are far more complex than in many other situations).
It soon became apparent that the civil administration in Kosovo must engage in many sectors of daily life. The humanitarian operation is one of its duties. However, the general obligation to re-establish a functioning society, including providing for utilities and the daily needs of the population, is a daunting task. A complicating factor is that the ethnic violence continues. Upon the return of the Albanian refugees to Kosovo, the major part of the Serbian population fled. The difficulties in making the two societies live together are apparent to any person following the media today. Another problem is the criminality that flourishes in a society where there is no full-fledged system for the maintenance of law and order.
In the midst of all this, UNMIK is trying to establish itself and to develop transitional institutions as required by the Security Council resolution. One of the pre-requisites for doing this is that the necessary legislation is in place. This means that the United Nations, which traditionally applies international law, all of a sudden finds itself in a situation where it has to legislate in fields that typically fall within the competence of the national legislator. It soon became apparent that new laws on customs, taxes, banking etc. are necessary. However, as far as possible the existing laws shall apply, unless they violate international standards in the field of human rights.
All this work -- and we must not forget this -- is done in a situation where there is no clear idea about the future relationship between Kosovo and the other parts of the Federal Republic of Yugoslavia. I recall in this context that UNMIK shall provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo. In a final stage, its task is to oversee the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement.
In East Timor the situation is similar, and yet different. While here we are certain of the constitutional situation – a new State will emerge – the demands in personnel and logistical terms are even greater than in Kosovo.
According to Security Council resolution 1272 (1999) of 22 October 1999, the United Nations Transitional Administration in East Timor (UNTAET) will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice. The resolution also means that UNTAET’s mandate includes the provision of security throughout the territory of East Timor; in Kosovo this task is entrusted to KFOR, which is not a UN entity.
As you know, the infrastructure of East Timor has been severely damaged by the militias, probably with the support of Indonesian Armed Forces. But even if the infrastructure would be rebuilt immediately, there would still be difficulties in identifying on short notice persons at the local level who could take charge of the many tasks that must be performed within an organized society.
With respect to applicable law, there seems to be agreement that the existing laws will apply, with the proviso that they can be set aside if they violate internationally recognized human rights standards. One problem identified is that there are very few East Timorese with a legal education and hardly any with experience of holding judicial positions. At the same time it is important that the systems set up are designed to serve the East Timorese society in accordance with their own wishes and their own traditions. To devise a modern western style administration of justice, with all its technical requirements, may not necessarily be the most helpful assistance to East Timor. It will be necessary to strike a reasonable balance here, without detracting from internationally recognized standards with respect to administration of justice, the organization of the national police and the management of detention facilities. You will notice that I am focusing on the legal aspects of the operation, since these are the aspects that are closest to my own Office within the United Nations Secretariat.
The multinational force that presently is in charge of peace and security in East Timor – INTERFET – will soon hand over its responsibilities to the UN. When this occurs, the tasks of UNTAET and its military component have to be exercised in an environment where there is still great resentment on the part of many. The threat from the militia is a serious reality, and this means that the United Nations personnel will be at risk.
To a lawyer working in the United Nations there are already now three important lessons to learn from the missions in Kosovo and East Timor:
First, a humanitarian intervention may have as a result that the territory in question will have to be governed by the United Nations.
Second, amid all the requirements that must be met, including providing shelter, utilities, and everything else needed for a normal day to day life, immediately surfaces the requirement of having in place an operational system for the administration of justice. The need for the military component or a civilian police component to arrest persons suspected of having committed crimes is immediate, and, as you know, international standards require that persons deprived of their liberty shall be brought promptly before a judge who shall examine the legal basis for the arrest. Furthermore, trials must be held within a reasonable time.
Third, the situation on the ground is such that former adversaries may see UN personnel as partial and, hence, the UN personnel are at risk.
Therefore, based on my experiences so far from dealing at Headquarters with the situations in Kosovo and East Timor, when I in the future hear the expression "humanitarian intervention", my immediate reaction will be: Another difficult task for the United Nations?
I have now come to my fourth and last part of my address: How do we reconcile "territorial sovereignty" and "human security"?
As I indicated at the outset, I see no incompatibility between the two. I would argue that the situation is -- or should become -- quite the opposite: there is juxtaposition. It all depends on how "territorial sovereignty" is exercised.
I am sure that we all agree that "territorial sovereignty" must be viewed in a different light today. It is no longer designed to protect a Sovereign. In a large part of the world it has become a concept for the protection of peoples, and why not individuals! A society that cannot protect the individual cannot protect the collectivity either.
What it all comes to, is that people living in a sovereign territory must be able to express their free will in a secret ballot to determine who is to govern them. If they have not already done so, sooner or later, every government will have to face the population of the country in general elections. However, admittedly, this is not the solution to all the problems. I think that one should take very seriously the argument that a general tendency to engage in humanitarian intervention can spark aspirations in many areas and create situations that, driven by a built-in logic, could develop into conflicts that have to be dealt with at the international level.
Therefore, it is necessary that governments make certain that minorities in their territories are treated in such a way that grievances are not expressed in demands for far-reaching self-determination, or maybe secession. It is against this background, for example, that the Organization for Security and Cooperation in Europe (OSCE), after the coming down of the Berlin wall, realized that protection of minorities was at the top of their agenda. It is sad to note that the efforts of OSCE were not sufficient to avoid the tragedies that we have witnessed in the former Yugoslavia.
In a State where territorial sovereignty is exercised in such a way that the rights and fundamental freedoms of the population -- and I mean the whole population -- are protected, the risk for eruptions of the kind that we have seen in the former Yugoslavia, in Rwanda and in East Timor will be, if not eliminated, so at least lessened.
However, it is important not to oversimplify. As I indicated, if the State community is seen to be too prone to engage in humanitarian intervention, this in itself can trigger off demands from separatist groups that would otherwise not have been forthcoming. There are those who maintain that the legal framework involving the right of self-determination and respect for territorial sovereignty is now in disarray. Consequently, extreme caution is necessary in order not to threaten the present legal system for the maintenance of peace and security, as laid down in the Charter of the United Nations.
Let me express the hope that the members of the Security Council (with or without changes in its composition) will be able to unite in the future in situations when gross violations of human rights makes it necessary for the world community to intervene. Such a demonstration of unity would in and of itself serve as a deterrent to prospective warlords and others who want to resort to arms.
Furthermore, recent developments demonstrate with horrifying clarity that what on its face may be seen as an internal conflict in reality poses a clear threat to international peace and security. The situations in Rwanda and Kosovo are obvious cases. In such situations, under Article 39 of the Charter, the Security Council has an obligation to determine what measures should be taken in accordance with the Charter to maintain or restore international peace and security. If the members of the Council bow in unity to this obligation, they will also in unity realize that it is more effective to take measures at an early stage in order to prevent that the situation deteriorates and necessitates intervention by coercive means.
In the exercise of their duties, the members of the Council will in the future act under the eyes of an increasingly well-informed general public. I am sure that the members of the Council would agree that they will have to act with credibility in these situations; or else they may leave others with no other choice but to act on their own in disregard of the letter of the Charter. At the same time: Will such action, providing that it is proportionate, in the eyes of the general public be seen as a violation of its spirit? I think not!
Seen in this perspective, the members of the Council have, in a sense, the same responsibility to protect the Charter and its viability, as national legislative organs have to protect the constitution of the State.
The international debate on these matters will no doubt continue as the Secretary-General intended. Let me here express the further hope that it will be possible to strike a fair balance between the different interests involved.
The questions to be discussed are very difficult, and it would be presumptuous to think that I could bring much clarity to the topic in the short time that I have at my disposal tonight. However, allow me to suggest that the following considerations be among those that should be borne in mind in the debate.
The World Organization presently consists of 188 member States. The common interest of these States must be to be able to live in peace. Their primary interest should be to avoid conflicts within and among themselves. Yet another common interest should be unity; a fragmentation of the existing community of States would not contribute to peace and security – on the contrary. However, if existing borders should be changed – and there could be perfectly legitimate reasons for this – such changes should be through negotiations and agreements. If, in such a world community, the Security Council deems it necessary to intervene, then the State concerned – or rather its government – has drawn the intervention upon itself. In other words, a State can determine for itself if it will be able to manage on its own, with or without assistance from e.g. the United Nations, or if it will be subject to coercive measures.
In my view, as in the case of the Security Council, also here the key issue is credibility. If a State is concerned about its "territorial sovereignty", then it must demonstrate that it makes every effort to protect the individuals that reside in its territory. A government that demonstrates with credibility that it undertakes all efforts possible to this end will command respect. The State that acts in this way would in a sense provide the best protection both for its citizens and against intervention from the outside.
But – you would argue – is this not oversimplification? Surely, I must be aware that there are many situations where lessening of government control would lead to anarchy! Surely, I must be aware of "the political realities"! My answer would be: Look at those parts of the world where borders generally have become less significant! The common denominator in these instances is greater respect for human rights.
It would, therefore, seem that "territorial sovereignty" is more of an issue to governments that are less successful in guaranteeing human rights to their populations. Another way of putting it is that, while invoked for the protection of the State against external threats, "territorial sovereignty" is in reality in many cases relied on for internal purposes. I stress that my focus in this context is on human rights and humanitarian law, not on other fields where measures may be necessary to protect national interests.
So, Madam President, I should like to close on the note that I see no incompatibility between "territorial sovereignty" and "human security". When it comes to the question how the peoples of the world should be governed, to me there is really no alternative to the sovereign State. There must be some order in the world community, also (or should I say: in particular?) in a world that is increasingly affected by cyberspace and transnational enterprises. And even if all peoples live in peace there must still be borders for administrative reasons, most importantly in order to allow the peoples of the world to organize good governance. What one would wish for is that all governments treat their citizens and others who reside in their States in such a way that these borders become less significant.
In my view, in the future, "human security" is best guaranteed in the sovereign State which is governed under the rule of law with full respect for the human rights and the fundamental freedoms of those who reside in its territory.
Thank you for your attention!