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The legitimacy of the United Nations’ use of armed force in defence of the fundamental human rights on… Barnes, Nana Kojo 1994

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THE LEGITIMACY OF THE UNITED NATIONS’ USEOFARMED FORCE IN DEFENCE OF THEFUNDAMENTAL HUMAN RIGHTS OF NATIONALS.byNANA KOJO BARNESLL.B., THE UNIVERSITY OF GHANA, 1990B.L., GHANA SCHOOL OF LAW, 1992A THESIS SUBMIrfFED IN PARTIAL FULFILMENTOF THE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(Faculty of Law)We accept this thesis as conforming to the required standardTHE UNIVERSITY OF BRITISH COLUMBIAJuly 1994NANA KOJO BARNES, 1994Signature(s) removed to protect privacyIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)___________________Department of 1L.The University of British ColumbiaVancouver, CanadaDateDE-6 (2/88)Signature(s) removed to protect privacyHAbstractThis thesis explores the constitutional legitimacy of the United Nations’ use of armedforce to protect nationals from governmental violation of their human rights. Theviability of the use of armed force is also considered. The thesis does not purport to beconcerned with United Nations military intervention in cases, which, though being threatsto international peace and security, do not arise from or turn on governmental violationsof the fundamental human rights of nationals.It is advanced herein that the constitutional legitimacy of the United Nations use of armedforce to protect nationals from governmental violations of their human rights primarilyturns on the violations creating a threat to international peace. It is argued thatconsequences of extensive, deliberate and persistent governmental violation of nationals’human rights could constitute a threat to international peace. It is further argued that,notwithstanding the existence of a threat to the peace, where the use of armed force mayimpact negatively on the maintenance of international peace it may not be legitimate inconstitutional terms for the United Nations to apply armed force.Even where the constitutional grounds for the United Nations resort to armed force aremet, the view is expressed herein that the raison d’etre for the resort to armed force inany particular situation must not be ignored. Where the raison d’etre is the need toprotect nationals against a government violating their human rights, the probable impactof the United Nations’ use of armed force must be a major consideration in the decisionmwhether or not to apply armed force.It is argued that there exists a real probability of high civilian casualties where armedforce is applied against a target government in areas where the target government isintermingled with the local population. Consequently, it is suggested herein that, armedforce not be used.Were one to discount the fear of high civilian casualties consequent on the use of armedforce, the point is made in the thesis that, despite the end of the cold war, most UnitedNations member states lack the political will, resources, and national tolerance levelsnecessary to equip the United Nations to carry out prompt, strong and sustainablemilitary action in defence of nationals from governmental violation of their rights.Against this background, but more particularly, the probability that the use of armedforce may impact negatively on the human rights of the nationals sought to be protected,it is suggested herein, as an alternative to the use of armed force, the early impositionof target-government-focused-sanctions by the United Nations. The position is taken thatimposing such sanctions during the early days of governmental repression may helppreempt the escalation of the human rights violations, and perhaps significantly reduce,if not eliminate the violations altogether.To facilitate the early imposition of these sanctions, it is suggested, inter alia, that a‘VSecurity Council Resolution be adopted expressly incorporating in the Security Council’sinterpretation of matters which constitute threats to international peace, “extensive andpersistent” governmental violations of human rights. The interpretation of “extensive andpersistent” will be left to a specialised United Nations’ department advocated herein, towit the “Governmental Sanctions Department.”This Department, in its determination of “extensive and persistent” human rightsviolations, will rely not on the strict grammatical meaning of the phrase “extensive andpersistent,” but rather, on the urgency to first, preempt the escalation of thegovernmental human rights violations, and second, to forestall the outbreak of localarmed rebellion or unilateral foreign interventions which may be consequential on largescale and prolonged governmental human rights abuses.Reducing the probability of the eruption of armed hostilities within the target state mayalso reduce pressure on the United Nations to intervene militarily, in defence of therights of nationals as the need for such intervention may be eliminated.VTABLE OF CONTENTSAbstract iiTable of Contents vAcknowledgement ixINTRODUCTION1.0 Concern For Human Rights 11.1 Multilateral Institutionalized Protection of HumanRights 51.2 Constitutional Problems 61.3 Thesis Focus 91.4 Chapter Layout 11CHAPTER ONE HUMANITARIAN INTERVENTION:CLASSICALTO CONTEMPORARY2.0 The Right of Unilateral Humanitarian Intervention 13a. Practice 13b. Humanitarian Focus--Defence of Minority Rights 17c. Evolution to a Multilateral InstitutionalFramework 18vi2.1 Deficiencies in the Minority Rights protectionscheme 232.2 Widening of the Rights Protection Focus 25a. Global Supervision 27b.From Minority Rights Protection to Human RightsPromotion/Protection:The Concept ofFundamental Human Rights 29i. Character 30ii. Content 32CHAPTER TWO THE LEGITIMACY OF UN INTERVENTION INDEFENCE OF NATIONALS’ RIGHTS3.0 Grounds 433.1 Intervention on the Basis that there exists aThreat to International Peace 44a. Article 2 (7) and the scope of DomesticJurisdiction 49b. “Threat to the peace”: Pre-1989 UN Practice 49c. Politicisation of Human Rights Issues 57i. Pakistan, 1971-1972 57ii. Cambodia, 1975-1978 60vild. “Threat to the peace”: Post-Cold war Practice 63i. Iraq, 1991 63ii. Somalia, 1991-1993 65iii. Haiti, 1993 68CHAPTER THREE THE UN’S USE OF ARMED FORCE TOPROTECT NATIONALS RIGHTS4.0 Prerequisites to the Application of Armed Force 72a. Prior Application of Article 41 MeasuresPrecondition to the Use of Armed Force? 73b. Application of Armed Force Conditional onSecurity Council’s Prior Express Determinationof the Inadequacy of Article 41 Measures? 75c. Maintenance and/or Restoration ofInternational Peace 774.1 The Viability of the UN’s Use of Armed Force toProtect Nationals 79i. Somalia, 1993 79ii. Bosnia-Hercegovina 84iii. Lack of adequate infrastructure 88vmCHAPTER FOUR MANDATORY SANCTIONS, A FORCEFULALTERNATIVE TO TIlE UN’s USEOF ARMED FORCE5.0 The Forceful Alternative 97a. Focus 97b. Constitution or Composition of the Sanctions 102c. Specifying the legal basis for the invocationof the Sanctions 103d. The Permanent Governmental SanctionsDepartment 104e. A Phased Approach in the Impositionof Sanctions 107f. Timely Imposition of Sanctions 1095.1 CONCLUDING REMARKS 112BIBLIOGRAPHY 115IxAcknowledgementMy profound thanks to Professors Peter Burns and Karin Mickelson, under whose ableand insightful supervision I have carried out this research. Their thought provokingcomments and suggestions proved crucial to the successful completion of this thesis.To Professor Maurice Copithorne, I owe a debt of gratitude. His seminar on InternationalLegal Problems proved invaluable to me in the preparation of this thesis. His seminargave me deep insight into some of the issues dealt with in this thesis.I assume full responsibility for any inaccuracies and errors in the thesis. Likewise for theviews and suggestions expressed herein.To the British Columbia Law Foundation I express my deep gratitude. The successfulcompletion of my LL.M studies was greatly facilitated by the generous financialassistance they extended to me.Providing me with emotional and moral support which proved crucial to me during myLL.M. studies, were Law Faculty and staff. To them I remain indebted.1INTRODUCTION1.0 CONCERN FOR HUMAN RIGHTS.The need to protect nationals against governmental violation of human rights1 hasassumed pervasive global urgency during the post-World War I period. Though the preWorld War I period did evidence concern and efforts aimed at protecting nationalsagainst governmental violation of human rights, such efforts were essentially regional innature, with roots in 18th and 19th century European state practice.With the emergence of a global village this century, concern for human rights has alsoassumed global proportions. This concern, particularly since the dawn of the UnitedNations Organisation (hereinafter, UN) era, has been articulated in numerous ways.These include the establishment of an institutional legal and moral framework for theprotection of human rights through international human rights instruments; the use ofmultilateral pressure and moral suasion through the media of the UN and some regionalpolitical organisations; and in some cases, the use of unilateral pressure by some states.21 References to governmental violation of human rights or thepotential thereof are, in the context of this thesis, toviolations or potential violations the character of which isextensive, deliberate and persistent.2 Such pressure under certain circumstances has been labelledas “interventionist”, especially when it has involved the useof coercive armed force. This Thesis focuses on interventionof a multilateral nature, specifically under the auspices ofthe UN. Unilateral intervention would not so much be the focusof the thesis as the debate as to its constitutionallegitimacy has become virtually sterile in the light of nearoverwhelming legal authority as to its illegitimacy. The_____________________2contemporary legal position on unilateral intervention mayperhaps be summed up in these terms, “ the overwhelmingmajority of contemporary legal opinion is against theexistence of a right of [unilateral) humanitarian interventionfor three reasons: First, the UN Charter and the corpus ofmodern international law do not seem specifically toincorporate such a right; Secondly state practice in the pasttwo centuries, especially since 1945, at best provides only ahandful of genuine cases of humanitarian intervention ,and, onmost assessments none at all, and finally, on prudentialgrounds, that the scope for abusing such a right arguesstrongly against its creation.”--- British Foreign AndCommonwealth Office, Foreign Policy Document No. 148,reprinted in (1986) 57 B.Y.B.I.L 614, 619.For case law against the lawfulness of unilateral interventionsee, Corfu Channel Case [1949] I.C.J. 4, 35 stating that “thealleged right of [unilateral] intervention as themanifestation of a policy of force (emphasis added) such ashas, in the recent past given rise to the most serious abusesand such cannot, whatever be the present defects ininternational organisations , [emphasis added) find a place ininternational law.” See also, Case Concerning Military AndParamilitary Activities in and against Nicaragua (Merits)[1986) I.C.J. Rep.14, 108,(hereinafter, Nicaragua versusUnited States ).For major international instruments prohibiting unilateralintervention see, Art. 2(4), UN Charter; Art. 15, Charter ofthe Organisation of American States (O.A.S.) (1948), 2 U.S.T.2394 T.I.A.S 2361 119 U.N.T.S 3; Art. III, Charter of theOrganisation of African Unity (O.A.U), reprinted in, (1963) 2I.L.M 766 ; Art. 8, Pact of the League of Arab States (1945),70 U.N.T.S 237; Declaration on the Inadmissibility ofIntervention in the Domestic Affairs of States and theProtection of their Independence and Sovereignty, G.A.O.R.2131 (1965)For views on the unlawfulness of unilateral intervention see,Rodley, N. S.,” Human Rights And Humanitarian Intervention :The Case Law Of The World Court,” (1989) 38 Int’l & Comp. L.Q. 331, 332, stating that, post 1945 state practice revealslittle faith in its legitimacy as no single state has reliedsolely on the supposed legality of unilateral humanitarianintervention in justifying its interventionist activities.See also, Farer,T., “An Inquiry Into The Legitimacy OfHumanitarian Intervention,” in, Law and Force in the NewInternational Order, Damrosch, L.F., and Scheffer, D., eds.,(Boulder: Westview Press, 1991) 186, 192-3 (hereinafter,“Intervention”); A]cehurst, M., “Humanitarian Intervention,”in, Intervention in World Politics, Bull, H., ed., (Oxford3This pervasive urgency3 to protect nationals from or against governmental violation ofhuman rights has been informed not only by the phenomenon of an emergent globalvillage but also by a number of other factors which include;(a) an enhanced global consciousness of the shared dignity and worth of humankind anda widely held belief that peculiar to all humankind are certain common rights whoserecognition and protection are necessary to maintain the dignity and perpetuation ofhumankind,(b) a widely shared urge born of our membership of the human species to protect andpreserve other members of the species and,[Oxfordshire): Clarendon Press; New York: Oxford UniversityPress, 1984) 95; Schachter, 0., “The Lawful Resort ToUnilateral Use Of Force,” (1985) 10 Yale Journal OfInternational Law 291. For a contrary opinion see, Reisman,N., & Mcdougal, N. S., “Humanitarian Intervention to ProtectThe Ibos,” in, Humanitarian Intervention and the UnitedNations, Lillich, R.B., ed., (Charlotteville: University Pressof Virginia, 1973), 167, 175 (hereinafter, Ibos; Suziki, E.,“A State’s Competence To Protect Human Rights in a ForeignState,” (1980) 15 Texas International Law Journal 231, 243.This pervasive urgency, has, in some instances, beenexploited by some individual states to advance their privateinterests (e.g. The 1978 Vietnam overthrow of the Khmer Rougegovernment of Cambodia) or to settle personal scores (e.g. The1978 Tanzanian overthrow of Uganda’s Iddi Amin who hadchallenged the Tanzanian leader to a boxing match.) See,Hassan, F., “Realpolitic in International Law: AfterTanzanian—Ugandan Conflict, ‘Huiiianitarian Intervention’Reexamined,” (1981) 17 Willamette Law Review 859, 890, statingthat unilateral intervention is “simply a cloak of legalityfor the use of brute force by a powerful state against aweaker one.”4(c) a recognition that governments if left alone can not be fully trusted to recognise andrespect the human rights of nationals as, inherent in the concept of human rights, is thelimitation of governmental authority as well as the imposition of governmentalresponsibility.4This distrust of governments as credible sole guarantors of human rights has beenengendered in part by a catalogue of governmental lack of regard for the fundamentalhuman rights (hereinafter rights) of nationals since time immemorial. For example, theperiod of humankind’s history preceding the League of Nations had revealed that nationalminorities, be it on the basis of race, religion, language etc., had been particularlyvulnerable to rights abuses by national governments which more often than not were“ Under the western liberal tradition , most civil-politicalrights operate as restraints on governmental authority viz.nationals, and socio—economic and cultural rights largelyrequire positive governmental action to make such rightsrealisable and assessible to nationals. See, generally, UnitedStates Constitution. The International Bill of Rights (TheUniversal Declaration of Human Rights, International Covenantof Civil and Political Rights, International Covenant onEconomic, Social and Cultural Rights) reflects the sameposition.However under the strict socialist tradition both categoriesof rights require positive governmental conduct. See,Socialist Concept of Human Rights , Halasz J., ed.,(Budapest: Academial Kiado, 1966) 67 , where he states thathuman rights are “a legal potentiality which requiregovernmental activity to become a social reality, a socialfact.” See also, the 1936 USSR Constitution where humanrights are portrayed as what the state would do for thecitizens. They are, therein, described as state policyobjectives.5dominated by national majorities.51.1 MULTILATERAL INSTITUTIONALIZED PROTECTION OF HUMAN RIGHTS.The focus of the urgency to protect the rights of nationals against governmental abusehas, especially since 1919, beginning with the establishment of the League of Nations,gradually evolved from emphasis on unilateral state based defence of the rights ofnationals to emphasis on institutional multilateral media. Such media has been in theform of international organisations which contemporarily, include the United Nations(UN), Organisation of American States (O.A.S), Organisation of African Unity (O.A.U)etc. Of these organisations the UN is the one with the widest mandate.The UN in the execution of its mandate to promote human rights, has utilised a wholehost of mechanisms or measures.6 These measures predominantly appear to be peacefuland non-coercive and depend a great deal on the voluntary compliance of states for theirsuccess. Some of the major measures taken by the United Nations in this directioninclude the definition of human rights standards, the preparation of human rights studies,the provision of human rights advisory services at the request of states, the establishmentSee, Schechtman, J.B., “Decline of the InternationalProtection of Minority Rights,” (1951) 4 Western Pol.Sci.Q. 1-11; Werk, V., “The Minority Problem and Modern InternationalLaw,” (1965) 7 World Justice 7—21.6 See, International Protection of Human Rights, Sohn, L.B.,& Buergenthal, T., eds., (Indianapolis: Bobbs Merril, 1973)543 (hereinafter, International Protection).6of special committees under the various human rights conventions to oversee and promotethe implementation of the relevant specific conventions, the making of recommendationsand adoption of resolutions by its specialised agencies and organs7 and in a few casesthe use of some of the coercive mandatory measures provided for in Chapter V118 of theUN Charter (hereinafter Charter).1.2 CONSTITUTIONAL PROBLEMS.However the realisation of the ideal of protecting the rights of nationals, againstgovernmental abuse through the UN system has not been readily achievable as firstenvisaged and hoped for. Constitutional problems among others, have bedeviled theseefforts. Disputes have arisen between the UN and states and also between states as tomatters of jurisdictional competence in the protection of rights of nationals.9‘ For a more detailed discussion of the UN’s application ofsome of these measures especially the non—coercive ones, see,Ibid., 544—551.8 Arts. 39-51. It is entitled “ Actions with Respect toThreats to the Peace, Breaches of the Peace and Acts ofAggression.”See, e.g., Soviet Union, “The ensurance and directprotection of human rights and fundamental freedoms is theinternal affair of every state,” quoted in, Kartashkin, “HumanRights And Peaceful Co-existence,” (1976) IX-I Human RightsJournal 5, 7; Czechoslovakia, “ The discussion of internalmatters of Czechoslovakia in the Security Council is contraryto the basic principles of the Charter, inspired by the aim ofprotecting the sovereignty and independence of States,” in, 3UN S.C.O.R Supp. (Apr.1948) 6, UN Dcc. 5/718 (1948).7These constitutional problems have revolved around the interpretation of the Charter aswell as of contemporary international law. Some advocates of the exclusive territorialjurisdiction and sovereignty of states doctrine’0 have contended that no where in theCharter is the UN mandated to “protect”11 rights. Also, that the protection and/or abuseof rights of nationals remains within the exclusive jurisdiction of the nation-state whichalone reserves the right to accept or reject international supervision/assistance in theexecution of its jurisdictional competence.’2The UN Charter contains a general prohibition against UN intervention in matters thatare “essentially within the domestic jurisdiction of any state”13 However, thisprohibition is inoperative in the event of “a threat to the peace, breach of the peace or10 A classical description of this doctrine is given by MaxHuber the Arbitrator in the Island of PalmasArbitration, (1928) 22 A.J.I.L. 867, 875, where he states thus,“Sovereignty in the relation between states signifiesindependence. Independence in regard to a portion of the globeis the right to exercise therein to the exclusion of any otherstate, the functions of a state.”11“Protect” is interpreted to imply proactive conduct.Reference is made to the Charter provisions dealing with UNrights activities where the words “promote and encourage” areused, words which in many ways are non—proactive.12 The only exception to the exclusive jurisdiction of a statein the treatment of its nationals recognised by this school,is where a state by virtue of an international agreement hasagreed to respect specific human rights. See, Goodrich, L., etal, Charter of the United Nations:Commentarv and Documents,(New York: Columbia University Press, 1969) 71 , (hereinafter,Commentary.)13 See, Art. 2 (7) providing in part that, “Nothing containedin the present Charter shall authorize the UN to intervene inmatters which are essentially within the domestic jurisdictionof any state8act of aggression”14 The issue arises as to whether governmental violations ofnationals’ rights may legitimately be subsumed under this ground of intervention.Academicians have contributed to the debate on this issue.’5 The dominant UN practicehas failed to clarify the situation.Further to the constitutional debate is the view that, the defence of rights, “a strictlyhumanitarian objective,”16 did not extend to the use of coercive armed force inachieving that objective.1714 Ibid., stating that “but this principle shall notprejudice the application of enforcement measures underChapter VII.” For a brief description of Chapter VII see,suDra, note 8.15 See, “Intervention,” suDra, note 2 at 190, stating thatthere exists no indication in the traveaux preparatoires tothe UN Charter that the drafters perceived a state’smistreatment of nationals as constituting a threat tointernational peace and security. See also, Fenwick, D.T., “AProposed Resolution Providing for the Authorization of theUse of Force by the United Nations, a Regional Organisation,or a Group of States in a State Committing Gross Violations ofHuman Rights,” (1973) 13 VA.J.Int’l.L. 340, 355, stating that,the maintenance of international peace and the protection ofhuman rights are necessarily interconnected.16 See, Nicaragua versus United States, supra, note 2 at para.268, stating that, ‘... the use of force could not be theappropriate method to monitor and ensure ... respect [forhuman rights)..., the protection of human rights, a strictlyhumanitarian objective, cannot be compatible with the miningof ports, the destruction of oil installations...”17 Ibid. See also, Charter Art. 2 (4) stating that, “allMembers shall refrain in their international relations fromthe threat, or use of force against the territorial integrityor political independence of any state, or in any other mannerinconsistent with the Purposes of the United Nations.”91.3 THESIS FOCUS.This Thesis explores the issue of the constitutional legitimacy of the use of armed forceby the UN to protect the fundamental human rights (hereinafter, rights) of nationals inthe face of governmental violations of them.18 This is an issue which is of particularconcern for two major reasons, namely:(a) It remains a highly controversial constitutional issue as many governments see itsvalidation as a potential threat to their domestic authority and,(b) Governmental abuse of rights appears to be a rising phenomenon in our century’9and some states and international commentators have increasingly been calling for a moreproactive and timely response by the UN to safeguard and guarantee the rights ofnationals among others.In examining the constitutional issue raised above, whilst a textual legal analysis will beutilised I propose to go beyond the black letter rules of the Charter. This is necessarysince, the UN body or organ with the primary responsibility for authorising the UN’s use18 See, supra, note 1.See, Rummel,R.J., “The Rule Of Law: Towards Eliminating WarAnd Democide” 4 (unpublished paper on file with the AmericanBar Association Committee on Law and National Security) wherehe states that, “while about 37,000,000 people have beenkilled in battle in all foreign and domestic wars in ourcentury, government democide (genocide and mass murder) havekilled over 148,074,000 ... and over 85% of these were killedby totalitarian governments.”10of armed force2° remains a political organ which in the execution of its mandatecontinually reflects the dynamics of international political relations.21Within this political context the usually diverse national interests of members of theSecurity Council as well as of the General Assembly are at play. These politicaldynamics greatly influence not only the development and interpretation of internationallaw but its effectiveness as well.These dynamics may have a bearing on the legitimacy of the authority of the SecurityCouncil as perceived by its non-members represented in the General Assembly. Pervasiveperceptions of illegitimacy may breed uncooperative attitudes which ultimately may affect20 This is the Security Council. See, Art. 24(1) of the UNCharter. The General Assembly may assume this responsibilitywhere, “the Security Council, because of lack of unanimity ofthe permanent members, fails to exercise its primaryresponsibility for the maintenance of international peace andsecurity in any case where there appears to be a threat to thepeace, breach of the peace, or act of aggression.” See,Uniting for Peace Resolution G.A.O.R. 377 (V) (1950).21 For example, the non—cooperative attitude that characterisedinternational relations between the former East and Westideological blocs during the Cold—War was reflected in thenear paralysis of the Security Council. Since 1990 however,the fair measure of cooperation which has emerged betweenthese former ideological foes has been reflected in therejuvenation of the once sterile Security Council. See,“United Nations: Security Council Summit Statement Concerningthe Council and the Maintenance of International Peace andSecurity,” reprinted in, (1992) 31 I.L.M. 758, 761 statingthat, “the members of the Security Council considerthat...there are now favourable international circumstancesunder which the Security Council has begun to fulfil moreeffectively its primary responsibility for the maintenance ofinternational peace and security.”11the enforcement potential of the UN. Especially in connection with the UN’s protectionof the rights of nationals. History has shown that the UN is only as effective as itsmembers and non members make it.1.4 CHAPTER LAYOUT.The Thesis is divided into five main parts the first of which is the introduction. Thesubsequent parts are each composed of a chapter.Part I, the introduction, seeks to isolate the issues to be explored in the thesis, hencerevealing the thesis focus. It also describes briefly the layout of the subsequent Parts.Part II, essentially, discusses the existence of a right of unilateral humanitarianintervention under classical international law and traces its legal development throughmodern history showing its replacement by a right of multilateral humanitarianintervention under an institutional framework. The concurrent evolution in the definitionof fundamental human rights and the standards in ascertaining governmental violation ofsame from a unilateral base to a more multilateral scheme of things will be emphasised.Part Ill discusses the circumstances or grounds under which this right of multilateralhumanitarian intervention may be invoked.12Part IV examines whether this right extends to the use of armed force. In other words,whether governmental violation of rights of nationals constitutionally legitimises themultilateral use of force as a measure of protection. This Part further assesses theviability of the use of armed force by the UN as a measure of protection of rights ofnationals against governmental violation of them. The military experiences of the UN inits protection of the Bosnian Muslims (Sarajevo and Gorazde), as well as of the Somaliswill be heavily drawn upon. The relevant military experiences from those situations willalso be contrasted.Part V, consequent upon the assessment of the protective value of the UN’s use of armedforce in Part IV, suggests an alternative to the UN’s use of armed force. The form andmode of implementation of this alternative is also covered. It is envisaged that thisalternative to the use of armed force, may contribute to rendering redundant, the practicalproblems that plague the UN’s use of armed force. Also, the view is expressed that theproposed alternative may contribute more positively to the UN’s proactive defence ofnationals against governments inclined to abuse the rights of their citizens.13CHAPTER ONEHUMANITARIAN INTERVENTION:CLASSICAL TOCONTEMPORARY2.0 THE RIGHT OF UNILAThRAL HUMANITARIAN INTERVENTION.(a) Practice.During the close of the 18th century and the first half of the 19th century, thoughEuropean states recognised that each independent European state had some form ofexclusive jurisdiction in the matter of its treatment of its citizenry,especially within itsterritorial boundaries,22 when a state’s treatment of its citizens/nationals was so cruelas to be considered a violation of “the fundamental laws” it was deemed legitimateamong European states to use or threaten to use armed force to remedy the situation.2322 This exclusive jurisdiction was an attribute of the notionof territorial sovereignty, a notion whose legal foundationsmay be traced to the 1648 Treaty of Westphalia. See forexample Arts. LXIV, LXV, LXXVI of the treaty, reprinted in,Vol I Malor Peace Treaties of Modern History 1648-1967,Israel, F.L., ed., (New York: Chelsea House Pubi. inassociation with M’cGraw Hill Book Co., 1967) 7, (hereinafter,Treaties)23 See, Hodges, H.G., The Doctrine of Intervention AndMorality, (1988) 5, where he quotes Hugo Grotius thus, “AnySovereign may justly take up arms to chastise nations whichare guilty of enormous faults against the laws of nature.”(90. n 29.)This phenomenon has variously been described as “humanitarianintervention.” It is an “intervention” because it amounts toa forceful and dictatorial interference with astate/government’s exercise of its traditional exclusiveterritorial jurisdiction over nationals. Such an interventionassumes its “humanitarian” nature from its ostensible objectof protecting human rights either of nationals of the target14What these “fundamental laws” were, was essentially not determined by reference to thepositive laws of the target state(s) but rather the prevailing moral values and level ofhuman rights consciousness of the intervening state(s)?It appeared immaterial to the issue as to the legitimacy of such an intervention that thepositive laws of the target state recognised no such rights or even legally permitted thegovernmental conduct which the intervening state(s) found abusive of rights. In thiscontext an act of humanitarian intervention appeared to be a statement by the interveningstate(s) that the rights it purported to protect derived their existence independently ofpositive law and their enjoyment were not subject to differences in nationality. In otherwords the protection of rights of nationals were not strictly a matter for the territorialstate, or the intervening state or a third state. See,Stowell, E., Intervention in International Law, (WashingtonD. C.: John Byrne & Co., 1921) 53.Unilateral humanitarian intervention is a phenomenon whichdates back many centuries. One of the earliest cases on recorddates back to 450 B.C .In that episode the Prince of Syracusedemanded of the Carthagians as a precondition for thecessation of military hostilities, their abandonment of thetradition of child sacrifice. See, International Protection,sura, note 6 at 178.24 See, Rougier, A., “La th’eorie de l’interventiond’humanit’e,” (1910) 17 R.G.D.I.P. 468, 526 where he statesthat, “whenever one power intervenes in the name of humanityin the domain of another power, it can not but impose itsconcept of justice and public policy on the other state(emphasis added] by force if necessary. Its intervention tendsdefinitely to draw the [other] state into its moral and socialsphere of influence (emphasis added].”15sovereign.25In the isolated cases in which these “fundamental laws” had been spelt out, for examplein bilateral or multilateral treaties, the issue as to their infraction or violation by theobliging state was a matter determined by the intervening states(s) according to itsunilateral standards.26Such interventions did not always involve the use of armed force or threat thereof,however the use of armed force remained the main instrument of intervention. The useof armed force as an instrument of state foreign policy was not illegitimate27 so long as25 This seems to have been pre—1855 practice. Dominant statepractice subsequent to that period and through the League ofNations era was an expression of the view that issues of humanrights were strictly matters of domestic jurisdiction exceptwhere such sovereign rights had been compromised by treaty.This was the position of the United States in 1859 and Russiain 1863. These claims were generally acquiesced to by othermajor independent states. Majority of post-1855 independentstate victims of unilateral intervention were states whom hadspecifically signed treaties not to violate the rights oftheir nationals, and the interventions were executed on thebasis of enforcing specific treaty obligations allegedly owedto the intervener(s). See, Cutler,L., “Internationalization ofHuman Rights” (1990) Illinois Law Review 575, 580,(hereinafter, Cutler); Russo, A.L., International Protectionof Human Rights, (Washington D.C.: Lerner Law Book Co.,l97l)17, (hereinafter, Russo).26 see, infra, note 41, and accompanying text.27 It appears though, that, from the second half of the 19thcentury European states rarely resorted to the use of force asa tool to protect rights, at least in Europe. This seems toconfirm the assertion by a number of internationalcommentators that from that period such use of force had lostits legitimacy in international relations and legal discourse.Resort to its use were sporadic and definitely not the16it fell within the corpus of “just causes”.The protection of the fundamental human rights of nationals and subjects of the targetstate were perceived as a just cause. In the words of Vattel, the 18th century Swissjurist, “If a prince by violating the fundamental laws gives his subjects a lawful cause forresisting him .... any foreign power may rightfully [emphasis added] give assistance toan oppressed people .... To give help to a brave people who are defending their libertiesagainst an oppressor by force of arms is only part of justice [emphasis added] andgenerosity.”28Vattel’s views reflected the dominant European state practice of that period.29 Twonotable examples include Russia in 1774, compelling Turkey to guarantee the ‘naturalrights’ of its Christian subjects and, Russia, Prussia and Great Britain compelling Polandat the close of the eighteenth century to respect the basic rights of its Protestantdominant state practice. See, Brownhie, I., International Lawand the Use of Force by States, (Oxford: Clarendon Press; NewYork: Oxford University Press, 1963) 338-342.28 Vattel,E., Law of Nations, ch IV, (Fenwick, C., ed.,1964)131, quoted in Cutler, supra, note 25 at 575-576.29 This is not to say that the legitimacy of the practice wasnever challenged. See e.g., [1843) 156 Edinburgh Review 365,where Nassau Senior states that, “according to moderninternational law, it appears to be doubtful whether a nationhas any right against its sovereign; it is certain that, if ithad any, they are rights which no third party is justified insupporting.”17citizens.3°(b) Humanitarian Focus ---Defence of Minority Rights.The focus of much of the humanitarian interventions during classical times were onbehalf of national minorities. Such minorities, defined on the basis of their language,religion, race, culture or such other attribute which set them apart from the relevantnational majority, were particularly vulnerable to governmental excesses.Such vulnerability appeared partly to be a consequence of their lack of control andinsignificant participation in the governmental apparatus which invariably, weredominated by national majorities.Atrocities committed by some governments against their national minorities during WorldWar I further emphasised the vulnerability of national minorities and following the wara continued need was felt to protect this particularly vulnerable group. It was felt thatsome domestic governments may not respect the rights of this group hence the need forinternational protection and supervision.3’30 See, Russo, supra, note 25. For a survey of leadinginstances of such military intervention during that periodsee, Ibos, supra, note 2 at 178—182.31 As has been shown, the vehicle of earlier protection hadbeen mostly unilateral intervention. The basis of interventionespecially during the 19th century ceased from being simply,prima facie, a reaction to the violation of what Vattel termed“fundamental laws” by the target state, to one to compelcompliance with “fundamental laws” which the target state(s)had by way of specific treaty obligations undertaken to18(c) Evolution to a Multilateral Institutional Framework.The approach adopted to protect minorities, while still treaty based, was significantlydifferent from the 18th and 19th centuries treaty practice in a number of ways.First, the protection was to be by an international organisation, the League of Nations(hereinafter League), of which a majority of the then independent states were members,rather than by individual states. Under this arrangement, certain countries, essentially thedefeated World War I states and states created or enlarged following the war, guaranteedin treaties32 their respect and protection of the rights of their national minorities, as hadbeen the practice in the 18th and 19th centuries.33These treaty obligations were owed to the League directly and not to individualsignatory states as had been the pre-League practice. Thus the right of enforcing therespect and protect.32 Such treaties included Treaty of St. Germain of Sept 10,1919 with Austria, Treaty of Neuilly of Nov 27, 1919 withBulgaria, Treaty of Trianon of June 4, 1920 with Hungary,Treaty of Lausanne of July 24, 1923 with Turkey, Treaty ofVersailles of June 20, 1919 with Poland, Treaty of Sevres ofAug 10, 1920 with Greece, Treaty of Parkes of Dec 9, 1919 withRumania. Also included were treaties with Czechoslovakia andYugoslavia on 10th Sept 1919 and the Treaty with Germany withrespect to its citizens in Upper Silesia.See, Russo, supra, note 25 at 25.See for e.g., the 1878 Treaty of Berlin, reprinted in,Vol.11 Treaties, supra, note 22 at 975, under which the treatyobligations undertaken by Nontenegro, Serbia, and Roumaniawith regard to their nationals were owed to the signatorystates of the other part in their individual capacities.19obligations thereunder now resided in an international organisation and not individualstates.The rationale for this shift from unilateral to institutional multilateral enforcement wasessentially to eliminate abuses which had occurred under the pre-League treaty guaranteepractice. Under the pre-League treaty guarantee practice, unilateral claims of defendingthe rights of minorities by way of enforcing treaty compliance had been partly based onthe desire of the intervening state(s) to advance its political interest and tilt the “balanceof power” in Europe in its favour.35The treaty obligations under the League practice, were characterised as “obligations ofinternational interest”36 which the obliging state could not modify “without the consentof a majority of the Council of the League.”37The second major innovation or improvement on the pre-League treaty practice, was theThis apparently perennial tendency of unilateralhumanitarian intervention to be used as a pretext to advancethe private and special interests of the intervener remainsone of the greatest obstacles against its legal validation.See for e.g., “Intervention,” supra, note 2 at 291, whereProfessor Schachter states, with reference to unilateralhumanitarian interventions that, “experience has shown howreadily more powerful states have used the pretext of a highergood to impose their will and values on weaker states...”36 See, closing articles of minority treaties. Some of theminority treaties are cited, supra, note 32.‘ Ibid.20transfer of the forum for determining governmental violation of minority rights enshrinedin the treaties, from the signatory state(s) of the other part to the Permanent Court ofInternational Justice.38 The treaties provided that disputes as to treaty compliance weredisputes of international character over which the Permanent Court of InternationalJustice had jurisdiction,39the judgment of which was to be final and binding.The objective for this shift was the ideal of providing, hopefully, an impartial andobjective forum devoid of political intrigues and the subjective standards of individualsignatory states.4°While the need to institutionalize the minority rights treaty protection system was afactor, the overriding rationale for the shift from unilateral guarantee of minority rightsto that of a multilateral institutional framework was to preempt the tendency for unilateralinterventions on behalf of minorities (usually by the state of which they formed thenational majority) to result in wars which disrupted international peace and security.4138 International Protection, suDra, note 6 at 216.See e.g., Article 12 of the 1919 Treaty of Versailles withPoland.40 See, International Protection, supra, note 6 at 217.41 See for e.g., sentiments expressed by United StatesPresident Woodrow Wilson in a speech delivered on May 31st1919 during plenary session of a Peace Conference, quoted in,Ibid. at 217, “ take the rights of minorities. Nothing Iventure to say is more likely to disturb the peace of theworld than the treatment which might in certain circumstancesbe meted out to minorities. And therefore if the Great Powersare to guarantee the peace of the world in any sense, is itunjust that they should be satisfied that the proper and21By way of removing lingering assumptions that customary international law stillrecognised unilateral use of force, the Covenant of the League42 required members “torespect and preserve against external aggression the territorial integrity and politicalindependence of all members... .‘ and, to apply immediate sweeping economic andfinancial sanctions against any member resorting to war in violation of its obligations.””If these provisions outlawing the use of unilateral force (except in self defence) were notdefinitive enough the following, it is submitted, left little room for ambiguity: “thesettlement or solution of all disputes or conflicts of whatever nature or ofwhatever origin[between state parties].. .shall never be sought except by pacific means[emphasisadd d]”45The rights of minorities sought to be guaranteed included rights to life, liberty, religiousfreedom and equal protection before the law. Also included were rights to maintainseparate social and charitable institutions to preserve their culture.46 The purpose ofthese guarantees ostensibly was to assure to national minorities equal status before thenecessary guarantees has been given.”42 Reprinted in, Vol. II Treaties, suDra, note 22 at 1274.‘ Art. 10.‘i” Art.16. The prohibition against the unilateral use of forcewas intended to apply to non League members as well. See, Art.17 of the Covenant of the League.Art.2, Paris Treaty For The Renunciation Of War,(Kellogg—Briand Pact) [1928], 94 LNTS, 54.46 See, Russo, supra, note 25 at 25.22law, a status national majorities, generally speaking, enjoyed.Recognising the weakness in the 18th and 19th centuries minority rights treaty protectionscheme, clear stipulations were put in these treaties providing that minority rights “berecognised as fundamental laws of the nation and that no domestic law or regulation bein conflict or paramount to those stipulations.”47The essential thrust of these treaties was that a number of “states as a result of theconclusion of those treaties accepted a limitation to their sovereignty in favour of theinternational protection of minorities.“481t must be noted that independent states thatwere not part of the national minorities rights protection scheme, by and large, enjoyedthe extent of sovereignty described by Max Huber49 not only in relation to other statesbut in relation to the League as well.50 In other words, independent of specific treatyobligations, the protection of rights of nationals was perceived as one of domesticjurisdiction.See, opening articles of minority treaties. Examples ofminority treaties cited, suDra, note 32.48 See, supra, note 46.“ See, Island of Palmas Arbitration, supra, note 10.50 See e.g., Art. 15(8) of Covenant of League which states inpart that, “if the dispute between the parties is claimed byone of them, and is found by the Council, to arise out of amatter which by international law is solely within thedomestic jurisdiction of that party, the Council shallmake no recommendation as to its settlement [emphasis added] .“23As I have sought to portray it, the dawn of the League marked the legal shift from thehitherto unilateral intervention especially with armed force, to intervention under anmultilateral institutional framework (albeit with very limited focus) personified in theLeague. The issue as to whether this limited right of multilateral intervention extendedto the use of armed force will be dealt with in Chapter Three.2.1 DEFICIENCIES IN MINORITY RIGHTS SCHEME.Many international legal commentators were not happy with the minority rightsprotection mechanism administered by the League for a number of reasons. First, theLeague’s approach adopted was too narrow as it was limited essentially to the minoritiesin defeated World War I states and new states. The protective regime did not covernational minorities in the victorious World War I states. Thus, in the United States forexample, black populations as well as Asian immigrants denied certain basic rights couldnot claim any international protection of those rights.Interestingly enough, as suggested by Professor Humphrey, the reason why attempts toenshrine human rights in the Covenant of the League of Nations failed was dueprimarily, to the apprehension which developed among many states mainly WesternStates when Japan pushed for the Covenant to mention the equality of nations and toprovide for the just treatment of their nationals. Many of those states had laws which24restricted the rights of Asian immigrants.5’Another shortcoming with the focus on the minority rights regime was the virtual lackof international protection of the rights of national majorities. It appears that allindependent states were not inhibited under international law in the treatment of theirnational majorities except in matters dealing with slavery and labour which were to someextent subject to international scrutiny and protection.Thus with the exception of the above mentioned areas it appeared that states could violatethe fundamental human rights of their national majorities and safely hold aloft the bannerof exclusive jurisdiction over domestic affairs.This lacunae engendered by the focus on the minority rights regime was exploited bymany governments in oppressing their non-minority nationals and subjects. Suchviolations were particularly patent and widespread in Russia and Turkey following theirrevolutions in 1917 and 1920 respectively.5251 Humphrey, J., “The International Law of Human Rights in theMiddle Twentieth Century,” in, International HumanRicihts:Problexns of Law and Policy:, Lillich, R.B., & Newman,F., eds., (1991) 1, 2, (hereinafter, Humphrey).52 Russo, supra, note 25 at 32.252.2 WIDENING OF THE RIGHTS PROTECTION FOCUS.The League failed to come to grips with the deficiencies inherent in its focus on theminority rights regime. Things were to change though following two major events;(a) Germany’s exploitation of the League’s excessive focus on minority rights to justifyits interventionist and expansionist ambitions in Europe. Germany cited the protection ofthe fundamental human rights of national minorities of German descent inCzechoslovakia, Poland and Austria-Hungary as legitimating grounds for its invasion ofthose countries in the 1930’s, an occurrence which directly precipitated World War(b) The sheer scale and manner of atrocities committed by certain governments on theircitizenry, minorities and majorities alike, during World War II, revealed that not onlyminorities or more specifically minorities in defeated states needed protection, buteveryone did, irrespective of the country of nationality.These developments vindicated a belief shared by many international commentators thatall governments and not only those of the defeated states could not be fully trusted to bethe sole custodians of the fundamental human rights of their citizenry, hence the urgentneed for some global machinery which would monitor and oversee the conduct of allIbid. at 31.26governments in the promotion and protection of the human rights of nationals amongothers.This development was a significant departure from the League era where it was believed,especially by the victorious World War I states, that only some governments were likelyto abuse the rights of some of their citizenry. And thus, the need for internationalprotection and supervision to oversee, monitor and enforce respect for domestic rightsof national minorities in those countries.By the end of World War II it was apparent that respect for, and protection of,fundamental human rights on a global scale was imperative and could no longer bedelayed.This realization precipitated two major developments;(a) The extension of the international supervision of governments with respect to thetreatment of their nationals from a few governments to all governments.TM(b) The widening of the human rights focus from emphasis on minorityrights to that of human rights in general.“ The UN in its general practice has held itself competent tomonitor and discuss human rights issues in any country even inthe face of strong governmental opposition. See, infra, note104 and accompanying text.27(a) Global Supervision.The UN in many respects a successor to the League of Nations, has been empowered to“promote respect for, and observance of, human rights and fundamental freedoms forall. . . “ Member governments are required to cooperate with the UN in carrying outthis mandate.56There is the view that this requirement of cooperation extends to non-members as wellor, put another way, that non-members are bound by the terms of the Charter.57Applying the res inter alios gesta principle as well as that of the sovereign equality ofindependent states , principles whose essential thesis is that no state can be bound by atreaty to which it is not a party58, it appears that the UN Charter a multilateral treaty,See, Art. 55 of Charter. For further references of the UN’sintent and mandate to promote fundamental human rights see,Charter Arts. 1(3), 13(b), 62, 68, and 76(c).56 Charter Art. 56 states, “All members pledge themselves totake joint and separate action in cooperation with theOrganisation for the achievement of the purposes set forth inArticle 55.”‘ Charter Art. 2(6) provides that, “The Organisation shallensure that states which are not Members of the United Nationsact in accord with these Principles so far as may be necessaryfor the maintenance of international peace and security.”58 There are three exceptions to this principle namely; (i)where the treaty(s) in question is a codification ofinternational customary law or, (ii) subsequently acquirescustomary law status, or (iii) crystallizes customary norms inthe process of formation.28may not (at least during the early days) have been binding on non-parties.59The UN throughout its practice has held non-members bound to cooperate with it in itsencouragement, promotion and protection of rights.60 Also it has not perceived non-membership as a bar to the reach of its rights promotion and protection tentacles.61Though Charter Article 2 (7) contains a general prohibition against UN intervention inmatters that may be said to be “essentially within the domestic jurisdiction of any state,”it nevertheless permits UN intervention in circumstances which the appropriate organ62of the UN has made a determination that a “threat to the peace, breach of the peace, oract of aggression” exists. The UN has on a number of occasions subsumed governmentalviolations of rights of nationals as “threats to the peace” and consequently as legitimatingThere exists legal authority that contemporarily, the basicprinciples of the UN Charter may have acquired customary legalstatus. See, Nicaragua versus United States, supra, note 2.60 See, Repertoire of the Practice of the General Assembly,Vol.1; Supp.1, & Supp.2, Vol.1, for examples of GeneralAssembly resolutions which have been directed to “all Membersand all other states,” “all states,” “every state” etc. Seealso, Security Council Resolution 418 (1977), reprintedin (imposing mandatory arms sanctions against theUnion of South Africa in which “all states” were requested tocomply.)61 See for e.g., GAOR/3d Sess., 2d Part/1949/ad hoc P01.Ctte./34th—4lst Mtgs./and 189th-203d Plen. Mtgs (GeneralAssembly’s inquiry into allegations of rights violations byHungary and Bulgaria who were then non—members of the UN).62 See, supra, note 20.29grounds for its Intervention.63(b) From Minority Rights Protection to Human RightsPromotion/Protection: The Concept of Fundamental Human Rights.Due to a number of major factors already highlighted, the dawn of the UN marked thebeginning of the transition from emphasis on minority rights protection to that of humanrights in general. Despite this transition, the character or classification of the rightssought to be protected remained largely unchanged although there was some extensionin the content of rights recognised as fundamental.M As the League and classicalinterveners had purported to do, the UN also sought to promote governmental recognitionand respect for “fundamental human rights.”65The question remains, however: what are fundamental human rights? This question may,perhaps, be dealt with from two perspectives namely, the determination of their characterand content.63 These categorisations and subsequent interventionistactivities will be the focus of Chapters Two and Three, infra.‘ A comparison of the rights recognised in the League’sminority treaties and that of the UN’s International Bill ofRights discloses a growth in volume.65 See, suDra, note 55, for references to the UN’s intent topromote fundamental human rights.30(i) CHARACTER.Many classical interventions in Western Europe were premised on the protection of thedignity of humankind. Dignity, it was believed, distinguished humankind from otherliving creatures. This dignity was seen as the sum total of humankind’s unique rationalnature, and upright carriage.This dignity was not perceived as a consequence of some positive law but rather ofhumanity. Hence this dignity was characterised as “inherent”, part and parcel of thepackage of humanity. The maintenance of this dignity involved the exercise of certainrights. These rights were thus “basic,” “natural,” and “inalienable” •67 These rights wereindivisible from the dignity of humankind. They were in fact an expression, as well asevidence of humankind’s dignity. They were not conferred on humankind by positivelaw but rather, by nature or some superior being who had created humankind.68 Thisconception essentially reflects the thesis of the Natural law school, which also perceived66 See, Bloch, E., Natural Law and Human Dignity, Schmidt,D.,trans., (Cambridge, Mass.: MIT Press, 1986) 186 ; Maritan,J., Rights of Man and Natural Law (1945) 34-38.67 Ibid.This view of the source of rights has not been withoutcriticism even in Western thought. See, Hart, H.L.A.,“Utilitarianism and Natural Rights,” in, EssaYs inJurisprudence and Philosophy (Oxford [Oxfordshire): ClarendonPress; New York: Oxford University Press, 1983) 181-182where he states that, “without government and law, men have norights and can have none”. See also, Bentham, J., “AnarchicalFallacies” in, Human Rights, Melden, A.I., ed., (BelmontCalif.: Wadsworth Publ. Co., 1970) 28, 32, where he statesthat, “natural rights is simple nonsense: natural andimprescriptible rights, rhetorical nonsense,———nonsense uponstilts.”31the individual as the fulcrum around which society revolved.69The conception of the character of fundamental human rights as “basic,” “natural,” and“inalienable” “peculiar” and “common” to humankind has carried over to the UN era andthe International Bill of Rights reflects this. The first preambulars to the UniversalDeclaration of Human Rights’7° (hereinafter, Universal Declaration), the InternationalCovenant of Civil and Political Rights71 (hereinafter, Political Rights Covenant) and theInternational Covenant on Economic, Social and Cultural Rights’72 (hereinafter,Economic Rights Covenant) all speak of “the inherent dignity . . . inalienable rights ofallmembers of the human family.” Both Covenants affirm that fundamental human rights“derive from the inherent dignity of the human person.”73Some states, however, deny the “inherent” and “inalienable” character of fundamentalhuman rights. The Peoples’ Republic of China (P.R.C.) for example, perceives of theserights as a creation or grant by the state.74 Fundamental human rights exist not because69 See, Lukes, S., Individualism , (New York: Harper & Row,1973), 45-47; Cowen, D.V., The Foundations of Freedom, (CapeTown: Oxford University Press, 1961) 118; Brownlie, I.,Principles of Public International Law, (Oxford: ClarendonPress, 1973) 575.° G.A.O.R. 217A (III) (1948).71 G.A.O.R. 2200 (1966).72 G.A.O.R. 2200 (1966)See, 2nd preaiubulars.i” See, Peoples’ Republic of China [P.R.C.) 1982Constitution, (hereinafter Constitution) Arts. 33-56.32of their supposed “inherent” and “inalienable” nature, but rather, by virtue of their beinggranted by the state.75 Thus within the Chinese constitutional conception a right derivesits fundamental character from such characterisation by the state and not because it is“inherent” and “inalienable.”76The common denominator though, that permeates the aforementioned conceptions of thecharacter of fundamental human rights is that, independent of the source of these rights,they have the character of being at least “essential” or “basic” or the “minimum” of thoserights necessary for the development and perpetuation of humankind.(ii) CONTENT.The issue as to the content of rights has raged since time immemorial. The disputeappears to have been exacerbated in the UN era with the coming together of manydiverse polities and cultures in one body, the UN. Not only has the issue beenThe subordinate nature or character of rights in the Chinesepolitic is perhaps revealed in Art. 51 of the Constitutionwhich provides that, “the exercise by citizens .... of theirfreedoms and rights may not infringe on the interests[emphasis added) of the state, of society and of thecollective.”76 But the Chinese do not deny that certain basic rights arenecessary if the state, society and collective are not tobecome extinct.This has sparked off a debate as to the universality offundamental human rights. The dominant view advanced by mostWestern states is that certain specific rights (fundamentalhuman rights) have universal validity and applicability.Other views contributing to this debate include those of;(i) Economic determinism, that is human rights are essentially33engendered by cultural and economic differences but also been plagued by politicisationas well.The UN, in an attempt to introduce some uniformity and consensus spelt out a wholehost of rights which it characterised as fundamental.78 These rights were, in somedetail, first specified in the Universal Declaration, a document not intended to be bindingupon states.79 The rights specified therein include civil, political, economic, social anddependent on the socio—economic conditions of any givensociety, and these conditions determine their content. See,Przetacnik, F., “The Socialist Concept of Human Rights,”(1977) 1 Revue Belget 238(ii) Cultural determinism, that human rights are a product ofa states’ culture . See, Tian Jim, “Complexities of HumanRights in Today’s World,” Beiling Rev., May 28-June 2, 1990,14.(iii) Religious determinism, that religion determines contentof human rights. See, generally, Amadou—Mahtar M’Bow, “ HumanRights and Islam,” (1986) 2 Africa Events 73.It is beyond the scope of the present thesis to do an indepthstudy of the issue of the universality of fundamental humanrights. The approach adopted herein is, keeping in focus thesubstantive issue raised in the thesis topic, to developobjective criteria, which facilitates consensus (even in theface of differing conceptions of the content of rights) thatthe rights of nationals are in danger ,or being abused by alocal government.Though certain views subsequently expressed herein may, oneway or the other, relate to the issue of the universality offundamental human rights, they are purely coincidental and notdirected at resolving the issue.78 This may be inferred from the Universal Declaration. See,preambular 5 and article 2 thereof.This document is believed by many to have acquired customarylegal status. See, Sohn, L.B., “The New International Law:Protection of the Rights of Individuals Rather Than States,”34cultural rights.This perception of all those rights as fundamental was for close to three decadesthereafter, not accepted by the majority of states. This lack of agreement was reflectedin two major ways;(i) widespread non-ratification of either the International Covenant on Civil and PoliticalRights (which contained civil and political rights), or the International Covenant onEconomic, Social and Cultural Rights (which contained social, economic, and culturalrights) or both.These two treaties were adopted for the express purpose of giving legaleffect to the rights listed in the Universal Declaration. It was only in 1976, ten yearsafter their being initially opened for ratification that enough ratifications were obtainedbringing them into force.(ii) The non-recognition of most of the rights therein as fundamental in domesticconstitutions and state practice. This was particularly prevalent, though not limited tonew states. The approach was simply to ignore most of the rights8°or where they were(1982) 32 Aju. U. L. Rev. 1, 17, where he states with referenceto the Universal Declaration that, “the declaration, as anauthoritative listing of human rights has become a basiccomponent of customary law, binding on all states, not onlymembers of the United Nations.80 For e.g., under the 1957 Ghana Constitution, (hereinafter,Independence Constitution) only three justiciable rights wererecognised. These were freedom of conscience, freedom fromdiscrimination and the right to enjoy private property. See,Art. 31(3), Independence Constitution, (Order-in-Council No.35recognised their fundamentality was impliedly denied. This denial by implication couldbe seen in the rights being made non-justiciable8’or essentially subordinate to thepolitical interests of the state or government,82 or being excluded from authoritativestate statements of recognised fundamental human rights.83277, 1957). See also, the 1964 Malawi Constitution, Art. 2.81 Under the 1961 Ghanaian Republican Constitution, thePresident was required to make a declaration affirming the“fundamental principles” in Art. 13(1) therein. Thesefundamental principles included rights such as freedom fromdiscrimination, rights of access to the courts of law, and tothe enjoyment of private property; freedoms of religion,speech and of assembly. In the now infamous case of Re Akoto[1961) G.L.R. 523, 528, the Ghanaian Supreme Court held that,art.13(1) was not tantamount to a Bill of Rights capable ofbeing constitutionally enforced by court action, rather, “ inour view the declaration merely represents the goal to whichevery President must pledge himself to achieve. It does notrepresent a legal requirement which can be enforced by thecourts.. .[ernphasis added). The peoples remedy for anydeparture from the principles of the declaration, is throughthe ballot box and not through the courts.”See also, Arts. 126 and 128 of the 1982 Chinese Constitution,supra, note 74, where, though first generation rights arerecognised in arts. 35—41 they are substantially unenforceableagainst the state or government.82 See, suDra, note 75.83 See, Restatement of the Law Third, Restatement of theForeign Relations Law of the United States (1987), section702, where rights or freedoms (mostly first generation), fromthe underlisted acts are considered fundamental. See,Reporters note 11. The said acts are; genocide, slavery,murder, or causing the disappearance of individuals, tortureor other cruel, inhuman, or degrading treatment or punishment,prolonged arbitrary detention and systematic racialdiscrimination.See also, the European Convention for the Protection of HumanRights and Fundamental Freedoms, which lists essentially civiland political rights.36There, however, appears to be growing acceptance of most if not all of the rightsenunciated in the Universal Declaration and subsequently in the Covenants as beingfundamental.M This assertion is made based on the following developments. First, thenumber of state parties to both Covenants (International Covenant on Civil and PoliticalRights; International Covenant on Social, Economic and Cultural Rights) hascontemporarily come to include a significant majority of states.85Second, the Council of Europe has complemented its 1950 Convention on FundamentalFreedoms with the 1961 European Social Charter which contains a list of most of thesocial, economic and cultural rights recognised under the Universal Declaration and theInternational Covenant on Economic ,Social and Cultural Rights.86 This adds to otherregional arrangements where the civil, political, social, economic and cultural rights84 Professor Theodor Heron suggests some criteria fordetermining the customary or fundamental nature of a humanright. These criteria include; (i) the extent to which aparticular right in a human rights instrument is repeated inother human rights treaties and, (ii) conformist statepractice as revealed primarily (but not exclusively) indomestic legislation. See, Human Ricihts And Humanitarian NormsAs Customary Law, (Oxford: Clarendon Press; New York: OxfordUniversity Press, 1989) 93.Applying this criteria it is possible to say that most if notall the rights in the Universal Declaration are customary orfundamental.85 As of 1990 92 states out of 170 had ratified both thePolitical Rights Covenant and the Economic Rights Covenant.This number has significantly increased since then.Ian Brownhie states that the 1961 European Social Charter“was intended to be complementary to the European Conventionon Human Rights.” See, Basic Documents on Human Rights,Brownhie, I., ed., (Oxford:Clarendon Press; New York: OxfordUniversity Press, 1981) 301.37listed in the Universal Declaration are all therein recognised as being fundamental.87Third, reference to Peaslee’s Constitution of Nations88 reveals a sizable number ofnations cutting across the East/West and developed/developing divide which, in theirconstitutions and domestic practice recognise many of the rights enunciated in theUniversal Declaration as fundamental. For example, 79 of the 89 nations covered,recognise the right to education as basic; 84 the right to personal liberty; freedoms ofconscience, speech, and due process; 59 recognise the right to social security. Otherrights substantially (that is, by over fifty states) recognised as fundamental includeequality before the law, freedoms of assembly, association and movement, and protectionagainst deprivation of private property among others.Fourth, the indivisible link between first, second and third generation rights has becomeparticularly patent in recent times with the proliferation of civil wars and the consequentdisruption of the social life of the people directly affected by such civil strife. Thebreakdown of law and order invariably has the effect of depriving the affected87 See, American Convention on Human Rights (1969), in, Ibid.381; African [Banjul) Charter of Human Rights (1981), in, 21I.L.M. 58.These documents together with the Political Rights andEconomic Rights Covenants are largely repetitive of thefundamental principles enunciated in the Universal Declarationand this in itself may be said to be an important articulationof state practice.See, Peaslee, A. J., Constitution of Nations (The Hague:Martinus Nijhoff, 1974).38government(s) and people of legitimate avenues to enjoy second generation rights suchas rights to food, shelter, health care, and work among others.The non-satisfaction of these rights invariably inhibits the enjoyment of first generationrights such as the right to life, freedoms of movement, association and assembly. Alsocompromised is their freedom from torture, cruel and unusual treatment and punishment.This linkage appears to have received worldwide recognition in widespread calls for UNhumanitarian intervention,89wh re human rights, be they first and/or second generationare in serious danger of being compromised. This recognition was given expressionduring the recent Somali humanitarian crisis.90 The UN action in Somalia has beensupported morally, politically, and materially by virtually every independent state in one89 See e.g., G.A.O.R. 43/131, (1988) (which provides that “thatthe international community should respond speedily andeffectively to appeals for humanitarian assistance made inparticular through the Secretary—General.” It is furtherprovided therein that, “convinced that, in providinghumanitarian assistance, in particular the supply of food,medicine or medical care for which access to the victims isessential, rapid relief will avoid a tragic increase in theirnumber.”90 Worldwide consensus was of such compelling magnitude thatthe UN Security Council found itself having to take thehitherto unprecedented step of citing “the magnitude of thehuman tragedy caused by the conflict in Somalia” ascontributing to its finding of a threat to international peaceand security. See, Security Council Resolution 794 (1992), in,UN Doc. S/PV. 3145 (1992).It also condemned all violations of humanitarian law occurringin Somalia “ including in particular, the deliberateprevention of the delivery of food and medicine essential tothe survival of the civilian population (emphasis added).”See, Ibid. para 5.39way or the other, with the Western world, especially the United States, Britain and Italy,at the forefront.Quite apart from these developments, it is submitted that the Universal Declaration in itsentirety may be an authoritative listing of the content of fundamental human rights.91This position is taken against the background that the Universal Declaration may haveacquired the status of customary law. If this is its current status, then, its statement ofall the rights listed therein as fundamental may not only be binding on states, but also themost extensive specification of fundamental human rights.Holding out all the rights in the Universal Declaration as fundamental is likely to be metby the contention that all those rights may not be fundamental since some of the rightsare more basic than others.It is submitted in rebuttal that, even amongst the least disputed of fundamental humanrights, such as the right not to be arbitrarily deprived of life and freedom from slavery,there still exists some disparity in their basic nature. The right to life is clearly morebasic than the freedom from slavery, for it is only through the enjoyment of life that thefreedom from slavery assumes any meaning.9291 This is not to imply that the Universal Declaration is acomprehensive and immutable listing of fundamental humanrights.92 See, Przetacznilc, F., “The Right To Life As A Basic HumanRight,” (1976) 9 Human Rights Journal 585, 589.40The obvious relativity in the importance of the two rights mentioned above, howeverdoes not detract from their fundamental nature as they are both necessary though notsufficient to ensure or safeguard the dignity of humankind. In other words fundamentalnature should be a derivative of the relation between a particular right and itscontributory role in ensuring the dignity of humankind. The logical extension of this viewis to confer fundamental status on practically all the so-called human rights.93Some specific rights which have received fairlyauthoritative recognition (outside of the UniversalDeclaration) as being fundamental and which are relativelyless controversial include;(i) Freedom from arbitrary deprivation of life —-- Art.4(2)International Covenant of Civil and Political Rights;(ii) Freedom from torture, or cruel, inhuman or degradingtreatment or punishment --- Ibid.;(iii) Freedom from slavery —-- Ibid.; Art. 3(1) SupplementaryConvention on the Abolition of Slavery, the Slave Trade, andthe Institutions and Practices similar to Slavery, (1956);(iv) Freedom from arbitrary imprisonment--- Art.4(2)International Covenant on Civil and Political Rights;(v) Freedom from imprisonment under retroactive legislation ——— Ibid.;(vi) Freedom of thought, conscience and religion-—— Ibid.;(vii) Right to be recognised as a person before the law,Ibid.;(ix) Freedom from genocide ——— Art. I, Convention on thePrevention and the Punishment of the Crime of Genocide (1948);(x) Freedom from racial discrimination—-— Advisory Opinion inthe Continued Presence of South Africa in Namibia [1971]I.C.J. 16, para. 131.(xi) Freedom from wrongful imprisonment --- United States41Being sensitive to the practical problems this view may portend , as well as thepractical reality of some lack of unanimity in the world community of nations as to thefundamentality of certain rights, it is important to go beyond this arid legalistic schemeof things.It is submitted that in practical situations in which the issue arises as to the fundamentalcharacter of any particular right(s) in the face of actual or potential governmentalviolations of them, the issue should be evaluated by reference to whether the actual orpotential violation of the right(s) concerned raises fairly worldwide abhorrence andcondemnation.95 If it does, then, the fundamental character of that right, for thepurposes of engendering global consensus and action, may have been practicallyrecognised.DiDlomatic and Consular Staff in Tehran (United States versusIran) [1980] I.C.J. 3, 42.“ This view may make virtually every government on the globeguilty on an ongoing basis of violating one human right or theother.Professor Schachter suggests using state practice and theintensity of third party condemnation of violations indetermining the fundamental nature of a right. See,“International Law In Theory And Practice,” (1982-V) 178Recueil des Cours 334, 335—6.Though subscribing in principle to Professor Schachter’s testI think that it suffers the major flaw of being toorestrictive in the conception of “third party.” It issubmitted that the fundamentality test would be more objectiveif the third party is expanded to include the majority ofstates rather than a few states.42Adopting such an approach, may not only help to effectively eliminate prior differences,but may also provide the consensual forum necessary for concerted and sustainable globalaction to remedy or prevent such abuseY This is particularly important since the UNas a body is only as effective as its members and non-members alike make it.This Chapter, has in a general sense, sought to reveal the existence of aright of intervention by the UN on behalf of nationals whose fundamental human rightsare being violated or in danger of being violated by domestic governments. An attempthas also been made to ascertain or provide the means to ascertain what these fundamentalhuman rights may be. The specific legal ground(s) by which the UN may legitimatelyintervene on behalf of nationals as well as the political dynamics involved in theinvocation of that ground(s) is the subject of the next Chapter.96 The practical worth of this approach was revealed in theglobal consensual abhorrence that fuelled and accompanied theUN’s characterisation of the practice of apartheid as aviolation of fundamental human rights during the 1970’s.Before then not all states were agreed as to the fundamentalnature of freedom from racial discrimination, however theconsequences of the practice were of such nature as to evokefairly worldwide abhorrence. This worldwide abhorrence servedas an objective determinant of the fundamental character ofthe rights involved. It also facilitated a fair measure ofsustained global action.43CHAPTER TWOTHE LEGITIMACY OF UN INTERVENTION IN DEFENCE OF THERIGHTSOF NATIONALS3.0 GROUNDS.It appears that there may be two main grounds on which the UN may legitimatelyintervene to protect nationals from governmental violation of their rights. The firstground is where the UN makes a determination that the governmental violations are ofsuch character as to constitute a threat to the peace. The second, is when theviolations are so egregious as to transform the issue of the direct protection of nationalsfrom one of domestic competence to that of international competence.98The first ground is the less controversial of the two. This is so since it reflects aninherent recognition of the primary domestic jurisdiction of the state with respect to thetreatment of nationals, interfering only when a threat to international peace has arisen.The second proves to be more controversial as its assertion is tantamount to the UNMcDougal, M.S.,and Reisman,M., “Rhodesia and the UnitedNations: The Lawfulness of International Concern,” (1968) 62A.J.I.L., 1, 14, (hereinafter, “Rhodesia”).98 Ibid., at 15.44claiming residual jurisdiction in the protection of the rights of nationals irrespective ofwhether there exists a threat to international peace.On the occasions that the UN purported to intervene on behalf of nationals it relied moreon the finding that a threat to international peace existed, than on the ground that it hadresidual jurisdiction in the treatment of nationalsY This preference, for the formerground of intervention rather than the latter, is a reflection of the general unacceptabilityamong many states of the latter ground of UN intervention.We thus focus on intervention on the basis that the consequences of governmentalviolation of nationals’ rights may create threats to international peace.3.1 INTERVENTION ON THE BASIS THAT THERE EXISTS A THREAT TOINTERNATIONAL PEACE.(a)Article 2 (7) And The Scope of Domestic Jurisdiction. Article 2 (7) of theUN Charter states a general prohibition against UN intervention. It provides that“nothing contained in the present Charter shall authorize the UN to intervene in mattersSee for e.g., Security Council Resolution 232 (1966),reprinted in, (1966) 60 A.J.I.L. 925 (imposing mandatorysanctions on Rhodesia.)Security Council Resolution 688 (1991), reprinted in, 30I.L.M. 858 (demanding that Iraq stop its repression of itsKurdish and Shiite moslem population.)Security Council Resolution 841 (1993) ,reprinted in, 32 I.L.M.1206 (imposing a trade embargo on Haiti.)45that are essentially within the domestic jurisdiction of any state... .The scope of the domestic jurisdiction of states, it has been authoritatively stated, is “anessentially relative question [dependent] upon the development of internationalrelations.”10’Traditionally though, states have asserted absolute competence, absent ofspecific treaty obligations, over the treatment of their nationals, especially within theirterritorial boundaries.102 They have claimed that inclused in such jurisdiction are all100 Under customary international law, states were as a generalrule, prohibited from intervening in the domestic affairs ofother states. This was derived from the fundamental principlesof the sovereign equality and political independence ofstates. See, Buergenthal, T., “Domestic Jurisdiction,Intervention and Human Rights: The International Perspective,”in, Human Rights And United States Foreign Policy , Brown, P.,& Maclean, D., eds., (1979) 111, 113. This prohibition wasextended to the UN so as to prevent powerful and influentialstates from using the Organisation to achieve what they wereotherwise prohibited from doing. See, Friedman, “Human RightsInternationalism: A Tentative Critique,” in, InternationalHuman Rights: Contemporary Issues, Nelson, J., & Green, V.,eds., (Stanfordville, New York: Human Rights Pubi. Group,1980) 29, 32.101 See, Tunis—Morocco Nationality Decrees, P.C.I.J., Series B,No.4 (1923) 24.102 See, Kirgis, F., International Organisations In Their LegalSetting, (1977) 775, stating that, “until the formation of theUN, there was virtually no significant challenge to theproposition that what a government does to and for itscitizens within its own territory is its own business, in theabsence of a specific provision to the contrary.” Thisposition has, in the UN era, been maintained by many states.See, sura, note 9 for examples of states that maintained thisposition.46matters pertaining to the treatment of their nationals.’°3UN general practice reflects a rejection of this perception of the extent of the domesticjurisdiction of states with respect to the treatment of nationals. In a study commissionedby the UN in 1953 to determine the competence of UN bodies including the GeneralAssembly (hereinafter, Assembly) and the Economic and Social Council to enquire intohuman rights abuses by states, the study revealed that the majority of UN member statesdid not view the listing and discussion of alleged state violations of human rights as amatter falling within the exclusive jurisdiction of states. ‘° Also excluded were thedrafting and adoption of recommendations by the UN on human rights issues around theworld.t05 However, matters that involved the direct protection of the rights of nationalssuch as enforcement measures, were seen as falling within the domestic jurisdiction of103 For example, in 1946, during a UN discussion of a draftresolution calling on South Africa to take administrative andlegislative steps to terminate its discriminating treatment ofits Asian population, South Africa moved that the proposedresolution “be deleted from the provisional agenda inaccordance with Article 2, paragraph 7”. Her reason for thismotion was that the mere listing of the proposed resolution onthe agenda amounted to an intervention by the UN in matterswhich were essentially of domestic character. See, Discussionsof Joint Committee of the First (Political) and Sixth (Legal)Committees of the General Assembly 21-30th Nov.1946, condensedin, International Protection, supra, note 6 at 559.104 See, Report of the UN Commission on the Racial Situation inthe Union of South Africa, 3 Oct 1953 8 G.A.O.R., Suppi. No.16 (A/2505) 1953, 16—22, 114—119, reprinted in, Ibid. 641,644.105 Ibid.47the state.1°6 The application of such enforcement measures were seen as impinging onthe jurisdiction of the state and consequently interventionist. 107 The results of this studywere accepted by the Assembly. 108The view that the jurisdiction of states extends to the preclusion of the adoption of non-coercive measures by the UN aimed at indirectly protecting the rights of nationals would,if respected, render a Charter purpose of “.. assisting in the realisation of human rightsand fundamental freedoms for all without distinction as to race, sex, language orreligion,”109 meaningless)1°Art. 2 (7) though generally prohibiting UN intervention in the domestic affairs of statesfurther provides that “but this principle shall not prejudice the application of enforcementmeasures under Chapter Vu.”1 Chapter VII provides for the application, under the106 Ibid.107 Ibid.108 See, G.A.O.R. 721 (VIII) (1953), [8 GAOR, Suppl. No. 17(A/2630) 1953 at 6—7].109 See, Art. 1(3).110 The Charter requires certain UN bodies such as the GeneralAssembly and the Security Council to routinely take noncoercive steps directed at the international protection of UNhuman rights standards worldwide. See, supra, note 56 for therelevant Charter articles.Arts. 39-51 of UN Charter. Entitled “Actions with Respectto Threats to the Peace, Breaches of the Peace, and Acts ofAggression.”48authority of the UN, of essentially coercive measures ranging from sanctions to the useof armed force aimed at maintaining or restoring international peace and security.’12The invocation of Chapter VII however depends on the Security Council’13(herei after,Council) making a determination114 that a threat or breach of the peace or act ofaggression has occurred.115 This determination as well as the application of theenforcement measures must be done within the context of the Purposes and Principles ofthe UN Charter. 116The issue arises as to whether governmental violation of the rights of nationals maylegitimately be subsumed under threats to international peace.112 Arts. 41—42.113 The Security Council is one of the Organs of the UN. Ithas a membership of 15 states, 5 of whom enjoy permanentmembership status (China, United States, the United Kingdom,France, and Russia). The remaining 10 members are elected fortwo-year terms by the General Assembly. See, Art. 23(1) & (2)of the UN Charter.114 Such a determination involves a substantial, non—proceduralissue hence requires at least 9 non—negative votes, inclusiveof the concurrence of all the permanent members. Abstentionfrom voting by a permanent member does not amount to anegative vote. See, Art. 23(7) of the UN Charter; Bailey,D.S., The Procedure of the Security Council, (Oxford[Oxfordshirej: Clarendon Press; New York: Oxford UniversityPress, 1988) 107, (hereinafter, Bailey).115 See, Art. 39.116 See, Art. 24(2) providing that the “Security Council shallact in accordance with the Purposes and Principles of theUnited Nations” in the execution of its duties under ChapterVII of the Charter.49(b) “Threat to the Peace”: Pre-1989 UN Practice.The parameters of “threat to the peace” are not specified in the UN Charter. TheConference Committee that drafted Charter article 39 decided to “leave to the [Security]Council the entire decision of what constitutes a threat to the peace “117 The rationalefor this perhaps lay in the lack of agreement amongst the drafters of the Charter as to theexact scope and content of the phrase.”8Early Council practice indicated disagreement,especially amongst the major powers, as to the scope of the phrase. This lack ofagreement was two dimensional. The first dimension being the question of whatamounted to a “threat” •h19 The second dimension of the disagreement was whether theword “peace” encompassed both international and internal peace or was limited tointernational peace.’20117 See, 12 U.N.C.I.O Docs. 505.118 See, Commentary, suDra, note 12 at 295. See also,“Rhodesia,” supra, note 97 at 7, stating that the operativerationale was that “for the effective discharge of the verydifficult and delicate task being imposed on it,the SecurityCouncil should be accorded a large measure of freedom to makead hoc determinations following a full, contextual examinationof the peculiar features of each specific situation of threator coercion.”119 See, Commentary, supra, note 12 at 296—297. See also,Council’s first consideration of whether the practice ofracial segregation in the Union of Africa South constituted athreat to the peace, infra, pp 50-53.120 See, Commentary, supra, note 12 at 296, stating that thisdispute as to the scope of “peace” was evident when thequestion of Palestine was being considered by the Council in1947, the United Kingdom (U.K.) interpreted “peace” to meaninternational peace only. The United States (U.S.) argued thatthis interpretation was too restrictive, citing in support thenon-use of the word “international” in Charter Art. 39. Itsubmitted that internal disorders could legitimately besubsumed under threats to the peace.)50The question whether governmental violations of the rights of nationals could besubsumed under threats to the peace first came before the Council in the matter of thepractice of racial discrimination in South Africa. Though the UN had as early as 1946been seized with the issue of racial discrimination in South Africa it was not until 1963that it found itself being called upon to make that determination.12’This followed arequest by 32 African states for enforcement action in the light of regional tensions whichhad been engendered as a result of the South African government’s apartheid policies,and refusal to respect UN resolutions recommending that it put an end to thepractice.’22During the ensuing Council discussions, the United States of America (hereinafter, U.S.)argued, in part that, the situations envisaged under Chapter Vu’23 of the Charter [threatto the peace, breach of the peace or acts of aggression] were “situations where there wasan actuality of international violence or such a clear and present threat to peace as toleave no reasonable alternative but to resort to coercion. “124121 See, Consideration by the Security Council, 1963-64.Reportof the Security Council, 1963-64. 19 G.A.O.R., Suppi. No.2(A/5802) at 20—43 (1964), reprinted in, InternationalProtection, supra, note 6 at 691-719.122 Ibid., at 691.123 Arts. 39-51. The Chapter is entitled “Actions with Respectto Threats to the Peace, Breaches of the Peace, Acts ofAggression.”124 See, International Protection, supra, note 6 at 694—695.51The United Kingdom (hereinafter, U.K.) argued that “a distinction should be madebetween a situation which engendered international friction and one which constituted athreat to peace”.’25 In its view, threats to international peace included threats to theterritorial integrity and political independence of states. Hence in so far as no evidenceexisted pointing to the South African government threatening the territorial integrity andpolitical independence of any state, the exception to Article 2(7) could not be legitimatelyinvoked.’26The Union of Socialist Soviet Republics (hereinafter, U.S.S.R) expressed a differentopinion. In its view the character of the human rights violations perpetrated as well asthe consequent arms build up in the region were such that a threat to international peacehad arisen.’27 The lack of consensus among the permanent members of the Council(hereinafter, permanent members) on this issue resulted in the Council not making thatcharacterization.128The various views as to whether governmental violations of the rights of nationals couldamount to a threat to the peace were influenced not solely by legal considerations, but125 Ibid., at 698.126 Ibid.127 Ibid., at 703.128 Ibid., at 706. It was not until 1970 that the Councilrecognised the consequences of apartheid as creating a“potential” threat to the peace. See, Security CouncilResolution 282 (1970), reprinted in 9 I.L.M. 1090.52economic, political and strategic reasons as well.The U.K. when she advanced her opinion on the issue also gave some insight into thefactors which influenced her view. She pointed to her political, economic and militaryinterests in South Africa asserting that “the United Kingdom’s trade with, andinvestments in South Africa were of great importance to the United Kingdom’s externaleconomic position and therefore had implications for world trade generally. “‘In seeking to reveal the reason for the opposition of some Western states such as theU.S., the U.K., and France to the charactensation of the practice of apartheid as a threatto the peace, and consequently as grounds for the application of enforcement measuresMr. Louw, the South African Foreign Minister, suggested that it was their desire not tolose “a substantial source of raw materials.”30129 International Protection, supra, note 6 at 698. Contrastwith the Council finding a threat to the peace in thecomparable rights violation practice of the Rhodesiangovernment. See, Security Council Resolution 232 (1966),reprinted in, (1966) 60 A.J.I.L. 925, (imposing mandatoryeconomic sanctions on Rhodesia). The operative differencebetween the consequences of the practice of racialdiscrimination in South Africa and Rhodesia was that theRhodesian violations were being perpetrated by a governmentwhich had by virtue of its unilateral declaration ofindependence from the U.K. in 1965, alienated many Westernstates. on Rhodesia’s unilateral declaration of independence,see, “Rhodesia,” supra, note 97 at 3.130 Quoted in, International Protection , supra, note 6 at 696.53The Assembly by majority vote adopted a position opposite to that of the U.S. andU.K.’31 While not denying the probability that the Assembly may have been right, itseems the Assembly’s position was influenced by extra-legal considerations.’32 Themajor role this extra-legal consideration among others played becomes more glaring inthe light of the fact that the Assembly in its general practice, has been most unwilling toclassify governmental violation of the rights of nationals as amounting to threats tointernational peace. There are other reasons for this unwillingness.The politicisation of human rights issues, has been an operative factor, but not the solefactor. Other particularly important factors include factors which are peculiar to theAssembly, especially the developing member states. The Assembly, numerically, isdominated by developing nations.The fear that a pattern of such characterisations may be precedent setting has particularlyinformed the unwillingness of many members of the Assembly to make such131 The Assembly characterised the practice of apartheid asamounting to a threat to the peace. See, G.A.O.R. 2396 (XXIII)(1968).132 It appeared more to have been moved, in its December 2ndcharacterisation of the consequences of apartheid as creatinga threat to international peace, by the intense anger of someAfrican states who saw the practice of racial discriminationagainst blacks as a direct insult to the black race as awhole. Many African countries appear to have championed thecharacterisation of the practice of apartheid as “a threat tothe peace” more on the basis of racial sympathy than a genuineobjective concern for human rights in general.54characterisations.’33It is feared that, precedents may be ‘exploited’ by the permanentmembers if they manage to achieve the necessary consensus amongst themselves and atleast four other Council members, to ‘unduly’ intervene in the affairs of theseparticularly vulnerable members of the Assembly.1 This fear is particularlyheightened by the fact that governmental violation of nationals’ rights are almost aregular feature in their domestic jurisdictions.’35 This situation may increase theirvulnerability to enforcement action were they to lend unqualified support to the view thatsuch violations could be a threat to the peace.133 See, Nanda, V., “A Critique of the United Nations Inactionin the Bangladesh Crisis,” (1972) 49 Deny. L.J. 53, 60(hereinafter, Nanda) stating, (with reference to theAssembly’s inaction during the 1971 Pakistani atrocitesagainst its Bengali citizens) that, “intervention particularlymilitary intervention was unacceptable to a vast majority ofthe UN members for fear that it might set an unhealthyprecedent”. See also, UN Doc. S/PV. 2982 (1991) (providingtext of Council debates to Security Council Resolution 688 onIraq. See, sentiments expressed therein by Yemen, Zimbabwe,and Cuba who voted against the said Resolution whichcharacterised the consequences of the Iraqi governmentrepression of its civilian population as constituting “athreat to international peace and security”).134 See, e.g., Hossie, Linda, “Plan to Keep World OrderThreatens Sovereignty,” The Globe and Mail, May 25, 1993, A12,col. 3, stating that developing countries already believe theUN and other multilateral bodies intrude too much into theiraffairs by monitoring human rights. . . “now they fear thatmilitary options being considered by the UN to keep peace inthe world will protect the interests of the major powers atthe expense of the developing world.”135 Schachter, 0., “The United Nations Law in the GulfConflict,” (1991) 85 A.J.I.L. 452, 468 (hereinafter, “GulfConflict.”)55This danger is particularly apparent against the background that some permanentmembers, have for decades, been applying all forms of unilateral pressure ranging fromthe suspension of economic and military assistance to the threat or actual use of force’36to coerce some of these states to improve their domestic human rights performance,particularly in the civil and political rights category. This category of rights, thoughrecognised by many developing countries as fundamental, have not been domesticallyprotected. The oft-cited excuse being that a fair measure of social, economic and culturalrights ought to be achieved before the enjoyment of civil and political rights becomesmeaningful, and to do so there is the need for a strong state which will then worktowards the advancement of the rights of the individual through first achieving the rightsof the collectivity.137Another reason which may have informed the general unwillingness of the Assembly tocharacterise, as a matter of general practice, governmental abuse of the rights ofnationals as constituting threats to international peace was the view that the enforcement136 The U.S. and France stand out amongst the permanent membersin that regard. An example of U.S. adoption of the use ofarmed force ostensibly to coerce states to improve theirdomestic human rights record is its military assistance to the“Contra” rebels of Nicaragua during the 1980’s. For an accountof this assistance see, Nicaracrna versus United States, supra,note 2, paras. 75, 85, 91, 92, 95, 99, 267, 268.137 As one state delegate of an African state put it, “theyoung states must guarantee human rights. They also knowbetter than anyone else that there can be no human rightswhere there is no state. That is why our countries areparticularly concerned with the security of the state -- inother words the collectivity at the expense of theindividual.” Quoted in Humprey, supra, note 51 at 11-12.56measures specified under Chapter VII of the Charter may be used against them and notagainst any of the permanent members.’38 Given the veto’39 privilege of thepermanent members, it is most improbable that the Council may be able to pass aresolution characterising a present and voting permanent member’s abuse of nationalsrights as being a threat to the peace.14°Though the Assembly could circumvent the veto privilege by invoking its powers underthe “Uniting for Peace” Resolution,141 such characterisation may prove sterile as thesupposed military and political might and influence of any of the permanent membersmay render the application of enforcement measures an exercise in futility.As revealed in the UK example142 economic reasons greatly informed state practice138 Though this is a statement of fact rather than of law, ithas been suggested that enforcement action was not intended bythe Charter to be applied against a permanent member. See,Hiscocks, R., The Security Council: A Study In Adolescence(London: Longman, 1973) 294.139 This is the right which any permanent member by casting anegative vote in any substantive non—procedural issue voted onin the Council blocks its adoption.140 See, Lall, A., The Security Council In A Universal UnitedNations, (Carnegie Endownmemt for International Peace, 1971)8, noting that the permanent members as a general practice,are supportive of Security Council action only when theirinterests will be served by so doing. Between 1966-86, a totalof 119 vetoes were exercised. 12 by France, 18 by the formerU.S.S.R., 21 by China, 23 by the U.K. and, 57 by the U.S. Ineach of these cases the interests, one way or the other, of avetoing member(s) was at stake. See, Bailey, supra, note 114at 209.141 G.A.O.R. 377 (V) (1950). For relevant text see, sura,note 20.142 See, sura, text accompanying note 129.57within the Council. There were also, other factors at play. One factor which greatlyinhibited consensus, during the Cold war years, that governmental violation of nationals’rights could constitute a threat to the peace, was the politicisation of human rightsissues.’43(c) Politicisation of Human Rights Issues.(i) PAKISTAN. 1971-1972.The atrocities committed by the Pakistani military in the then East Pakistan on its Bengalicitizens were on such a scale that some writers categorised them as amounting toselective genocide.’” As a consequence of these violations an estimated 10,000,000143 The practice of the Security Council in the matter ofinternational human rights protection, in the current postcold war era, in which the Council appears less politicallypolarised, seems to underscore the view that politicalpolarisation in the past greatly informed the SecurityCouncil’s general unwillingness and inability to characterisegovernmental violations of fundamental human rights asconstituting threats to international peace and security. Itspost cold war practice includes characterising as creatingthreats to international peace, the violation of nationalsrights by some governments. The factors indicating that theviolations created a threat to the peace, were not as patentas those that existed during the 1971 Pakistani atrocities orthe 1975-78 Cambodian tragedy.144 See for e.g., Cousins, N., “Genocide in East Pakistan,”Saturday Rev., May 22, 1971, 20.Genocide may be defined as “acts committed with the intent todestroy, in whole or in part, a national, ethnical, racial, orreligious group.” Acts which are genocidal include:(i) Killing members of the group;(ii) Causing serious bodily or mental harm to members of thegroup;(iii) Deliberately inflicting on the group conditions of lifecalculated to bring about its physical destruction in whole orin part;58Bengalis fled to India as refugees.145 There was sufficient evidence that this state ofaffairs had seriously strained Indo-Pakistan re1ations.’ It is suggested that these wereadequate indicators that there existed a threat to the peace.’47The Council, though seized with these facts’48 did not discuss the matter till theoutbreak on December 3, 1971 of armed hostilities between India and Pakistan.’49(iv) Imposing measures intended to prevent birth within thegroup;(v) Forcibly transferring children of the group to anothergroup. See, Art. II, Convention on the Prevention andPunishment of the Crime of Genocide (1948) 78 U.N.T.S. 277.145 See, “Bengalis’ Land a Vast Cemetery,” New York Times, Jan.24, 1972, 1, col.5; “Swaran Singh Says India Seeks NoPakistani Land,” New York Times, Dec.13, 1971, 16, col. 3.146 See, Nanda, suDra, note 133 at 56.147 See, Mohr, “ India and Pakistan Step Up Preparations forFull War, New Units Are Formed,” New York Times, Dec. 3, 1971,1, col. 2, stating that by late November, 1971, outbreak ofarmed hostilities seemed inevitable.148 The UN Secretary—General, in a memorandum to the Councilduring the heat of the Pakistani atrocities, submitted thatthe consequences of the Pakistani action had become a“potential threat to the peace.” See, Memorandum to thePresident of the Security Council, UN Doc. 5/10410 (Jul. 20,1971). Text in 8 UN Monthly, Aug.—Sept. 1971, 56—57, cited in,Nanda, suDra, note 133 at 63.149 Nanda, Ibid., at 57, stating that, the Council beganformal deliberations on Dec. 4 1971. For text of Councildiscussions see, 9 UN Monthly Chron., Jan. 1972, 3—25,(hereinafter, Council Discussions). India, during theCouncil’s discussion of the situation said, “Refugees were areality. Genocide and oppression were a reality. Theextinction of all civil rights was a reality .... The Councilwas nowhere near reality. . . .while developments proceeded ontheir inexorable course toward the present tragedy, the UnitedNations continued to be inhibited by considerations ofdomestic jurisdiction.”59The apparent reason for the Council’s failure to characterise the Pakistani government’shuman rights atrocities as being a threat to the peace despite supporting evidence, seemedbe a consequence of the opposing political interests among Council members indevelopments in that region.15°The politicisation of human rights was evident during attempts by the Council to adoptresolutions calling on India and Pakistan to observe a cease-fire. China which supporteda call for an immediate unconditional ceasefire and troop withdrawal, was accused by theU.S.S.R. of “trying to divert attention from the main cause of the conflict . . .which wasthe monstrous and bloody repression of East Pakistan.”151 The U.S.S.R. vetoed twoearly resolutions calling for a cease-fire.’52 It however voted in favour of a resolutioncalling for a ceasefire when India had on December 17, 1971 unilaterally declared a150 But, Nanda, suDra, note 133 at 57, suggests that theoperative factors were the fear of creating an unhealthyprecedent, and the belief that United Nations interventionwould not have been effective. But subsequent discussions inthe Council after the outbreak of hostilities between Indiaand Pakistan suggest that the key factor may have beenopposing political interests amongst some of the permanentmembers. The U.S.S.R. and Poland, political allies of India,were the only Council members who argued for a linkage betweenthe call for an immediate ceasef ire and the need to addressthe wishes of the Pakistan Bengalis. Addressing these wisheswas tantamount to recognising and supporting the secession ofEast Pakistan, a situation which will have enhanced India’sinfluence in the region at the expense of Pakistan, apolitical ally of the U.S.151 See, Council’s Discussions, supra, note 149 at 11.152 Ibid., at 19, 20.60ceasefire following the surrender of the Pakistani forces.153(ii) CAMBODIA. 1975-1978.The failure of the Council in its general practice, to characterise governmental violationsof the rights of nationals as creating threats to international peace, was demonstrableduring the three years of virtual genocide committed by the Khmer Rougegovernment’54 in Cambodia between April 1975 to December 1978 against some of itscitizenry. It is believed that close to a third of the then seven million population werevictims of this deliberate pattern of human rights violations inflicted by the Khmer Rougegovernment.’55 The then chairman of the United Nations Human Rights Sub-Commission charactensed the human rights violations as “the most serious to haveoccurred anywhere since Nazism.”56 Cambodian refugees, bent on ousting the KhmerRouge government, formed the United Front for the National Liberation of Kampuchea(hereinafter, United Front). Vietnam, now at odds with the Khmer Rouge government,153 See, Security Council Resolution 307 (1971). Text in 9 UNMonthly Chron., Jan. 1972, 45-46.154 The Khmer Rouge supported by China and North Vietnam(Vietnam) overthrew the U.S. and South Vietnam supportedRepublican government on April, 17 1975 after defeating theirforces in a civil war. The new regime then proceeded toeliminate supporters of the deposed government. See, Bazyler,M., “Reexamining the Doctrine of Humanitarian Intervention inthe Light of the Atrocities in Kampuchea and Ethiopia,” (1987)23 Stan. Journal of Int’l. L. 547, 551—552 (hereinafter,Bazyler.)155 See, New York Times, Dec. 17, 1971, A16, col. 5.156 Quoted in, Bazyler, supra, note 154 at 552.61lent active support to the United Front.’57 On December 25, 1978, Vietnam togetherwith the United Front invaded Cambodia and overthrew the Republican government.158The Security Council during the period of the Khmer Rouge government atrocities andthe consequential cross border forays by the Vietnam-backed United Front, made nofinding that a threat to the peace existed.It did not discuss the human rights situation inCambodia until after the December 25th, 1978 Vietnamese invasion of Cambodia.’59It is submitted that the silence of the Council may be traced to fears that China, a backerof the Khmer Rouge government, may have vetoed any Council resolution condemningthe communist Khmer Rouge government or characterising the consequences of its humanrights violations as creating a threat to international peace)6°There may have been theadded factor of the preparedness of the U.S.S.R. to protect Communist regimes even in157 See, Ronzitti, N., Rescuing Nationals Abroad ThroughMilitary Coercion and Intervention on Grounds of Humanity,(Dordrecht [Netherlands); Boston: Martinus Nijhoff Publishers,1985) 98—99, (hereinafter, Ronzitti.)158 Ibid.159 However individual states mainly the western andnon—aligned states had condemned the human rights violations.For e.g. U.S. President Jimmy Carter referred to the KhmerRouge government as “the worst violator of human rights in theworld today.” Quoted in, Ronzitti, suDra, note 157, at 99 n61.160 During Council deliberations following Vietnam’s invasionof Cambodia, China strongly condemned Vietnam for the invasionmaking no allusion to the atrocities committed by the KhmerRouge. See, Ronzitti, suDra, note 157 at 99.62the face of gross violations of human rights.’61With the end of the Cold War in 1989, a new spirit of cooperation andaccommodation162 has emerged within the Council especially amongst the permanentmembers. This spirit of cooperation has greatly lessened the politicisation of humanrights issues therein, though not eliminated it altogether.163 One consequence of thisspirit of cooperation and accommodation has been the willingness of the Council to moreobjectively, though on a case by case basis, determine whether governmental violationsof nationals’ rights constitutes a threat to the peace.161 See, Report on the 36th Sess. 4 Feb.— 14 Mar. 1980, Econ.& Social C’cil Official Records, 1980, Suppl. No.3, UN Doc.E/CN.4 /1408 pp 86—87 paras.255 257 & pp 190—191 cited in,Ibid. n.62. recording that the U.S.S.R. together with hereastern bloc allies, voted against a resolution of the UNCommission on Human Rights condemning “the invasion andoccupation of [Cambodia) by foreign forces and the violationof human rights which have ensued”.162 See, sura, note 21 for statement by permanent membersacknowledging this new spirit of cooperation.163 In order to secure the passing of Security CouncilResolution 688, it is believed that the U.S. had to do somehorsetrading with Russia and China. The U.S. is said to haveassured Russia and China not to cast its eyes on theirdomestic human rights practices as well as promising them someeconomic benefits. See, Fein, B., “Kurdish Enclaves More CurioThan Paradigm,” N.J.L.J. May 23, 1991, available in LEXIS,Nexis Library, NJLAWJ File. Cited in, Gallant, J.A.,“Humanitarian Intervention and Security Council Resolution688: An Appraisal in the Light of a Changing World Order,”(1992) 7 AN. U. J. INT’L. L. & POL’Y 881, 906, n158.63(d) “Threat To The Peace”- Post Cold War Practice.(i)IRAO. 1991.This willingness of the Council was first put to test during the Iraqi government’ssuppression of its civilian population, mainly the Kurds and Shiite Muslims, in theaftermath of the Gulf war. It is estimated that about 2 million Kurds fled mainly to Iranand Turkey to escape the atrocities unleashed on them by the Iraqi regime.’TM Theatrocities were on such a scale as to be termed genocidaL’65 The Council respondedfairly quickly, characterising the consequences of the Iraqi government’s repression asconstituting a threat to “international peace and security in the region.”’ Further, itdemanded that, “as a contribution to removing the threat to international peace andsecurity in the region [Irac] immediately end this repression.”67A factor contributing to the Council finding a threat to the peace, was the resultant“massive flow of refugees towards and across international frontiers and to cross borderincursions”168 Professor Schachter suggests that reliance on this factor by the Council164 See, Scheffer, D.J., “Use of Force after the Cold War:Panama, Iraq, and the New World Order,” in, Right V. Might:International Law and the Use of Force, (New York: Council onForeign Relations, 1991) 144.165 See, “The Law Learns From The Kurds,” New York Times,Apr.14, 1991, D18.166 See, S/C Res. 688, sura, note 99 at para. 1.167 Ibid., at para. 2.168 Ibid., preambular 3.64in finding that a threat to the peace existed was legitimate.169 He points to the tensionthat arose between Turkey, Iran, the main recipients of the fleeing Kurds, and Iraq’70.While this factor undeniably contributed to creating a threat to the peace, it seems theCouncil was particularly influenced in making this characterisation by a feeling of havingindirectly contributed to the repression of the Iraqi Kurds. Professor Schachter points outthat “the internal strife was in some respects a consequence of the international militaryaction, [against Iraq following its annexation of Kuwait] placing responsibility of apolitical and humanitarian character on the coalition to prevent massive attacks by theIraqi forces against noncombatants belonging to particular ethnic and religiouscommunities.”17’This added factor to some extent detracts from the precedential value of S/C Res. 688as authority for the proposition that the Council clearly recognised governmental violationof the rights of nationals as constituting a threat to the peace. Even if this added factorwere disregarded, S/C Res. 688 still suggests that mere governmental violation ofnationals rights may be insufficient to support a finding that a threat to the peace existed.The violations must have the consequence of creating large outflows of refugees acrossinternational borders and further, create belligerent feelings between the refugee receiving169 See,”Gulf Conflict,” supra, note 135 at 469.170 Ibid.171 Ibid.65neighbours and the oppressive government.’72The subsequent practice of the Council indicates however that a massive outflow ofrefugees across international borders coupled with belligerent feelings of the receivingcountry(s) are not prerequisites to its finding that a threat to the peace exists. Thisposition is evident in the Council’s handling of the human rights crisis in Somalia andHaiti.(ii) SOMALIA. 1991-1993.A humanitarian crisis had emerged in Somalia following the civil war that had ragedbetween a number of local warlords.’73 The civil war and ensuing lawlessness madethe cultivation of crops nigh impossible. This led in part to an acute domestic shortageof food and other necessities of life.’74 To meet this humanitarian crisis, relief agenciesmoved into the country with the prime purpose of distributing humanitarian assistanceto the needy people.175 These relief efforts were greatly hampered by some of the local172 The Council linked up these factors in S/C Res.688, suDra,note 99. See, preambular 3 thereof.173 See generally, Sheehan, E.R.F., “In the Heart of Somalia,(1993) Vol. XL The New York Review of Books, Jan. 14, 38(hereinafter, Sheehan.)174 Ibid., at 39, col.2, stating that, “the famine grew out ofclan and civil wars, drought, the destruction of agriculture,livestock, infrastructure, and the death of the economy.”175 Ibid.66warlords and their supporters who stole from the relief agencies.’76 Additionally manyrelief workers found their lives threatened. A consequence of these negativedevelopments was the increased suffering of the Somali population at large.The Council being seized with these facts made a determination that “the magnitude ofthe human tragedy caused by the conflict in Somalia, further exacerbated by the obstaclesbeing created to the distribution of humanitarian assistance, constitutes a threat tointernational peace and security. “178 This characterisation was unprecedented. Priorfindings of threats to the peace had, to a significant extent, turned on the actual existenceof interstate tensions.179 The Council found itself having to make this finding in orderto provide the legal basis for UN intervention to protect and facilitate the distribution ofthe humanitarian assistance.’8°The presence or otherwise of elements of massive176 Ibid., at 41, col. 2 & 3, recounting that a warehouse ofthe International Committee of the Red Cross (I.C.R.C.) wasroutinely looted at gunpoint by Somalis. He also mentions thetheft of 10 CARE trucks loaded with relief items by Somalis.177 Ibid., at 42, n5.178 S/C Res. 794, supra, note 90.179 For examples of Security Council resolutions that reflectthis point, see text of resolutions cited at, sura, note 99.180 See,”Force Needed to Aid Somalis, UN Leader Says,”Globe and Mail, Dec.1, 1992, A16, col. 5, quoting UNSecretary—General that, “the Security Council now has noalternative but to decide to adopt forceful measures to securethe humanitarian operations in Somalia.” See also, “UN PlansLargest Force in Somalia,” The Globe and Mail, Mar. 27, 1993,AlO.67outflow of refugees181 and tension within the “Horn of Africa”t82 were not perceivedby the Council as inhibitory to its finding of a threat to the peace.It must be stated though that, the precedential value of the Somali case, having regardto the issue at hand, must not be over-emphasised. Unlike in the Iraqi case,t83 theactivities which were inhibiting the enjoyment by the nationals of their rights wereperpetrated by warlords and their supporters and not the national government.’ Onehowever ought not to ignore the fact that the Somali case revealed some recognition onthe part of the Council that an inherent or potential threat to the peace may be just asvalid as the actual or imminent threat in making a finding that a threat to the peaceexists.181 See, Sheehan, supra, note 173 at 39, col. 2 & 3, statingthat the majority of an estimated two million Somali refugeeswere displaced within the country. Others in the hundreds ofthousands had fled to neighbouring states.182 It was difficult to isolate the existence of regionaltension (that is after the overthrow of the Siad Barregovernment) .The attitude of neighbouring states was one ofcooperation and willingness to assist the warring Somali clanssettle their differences politically. See, Afwerki,I.,”CanSomalia Survive U.N ?,“ Manchester Guardian Weekly, Oct. 24,1993, 17, col. 2, stating that neighbouring states did enjoythe confidence of Somalis and were in the “best position” tomake a positive and tangible contribution to resolving theSomali crisis. Afwerki, I., is the President of Ethiopia.183 The 1991 Iraqi government repression of its Kurdish andShiite Moslem citizens. See, supra, pp. 63—65 for briefdiscussion.184 See, Schmitt, E., “Most US Troops will Leave Somalia byApril in UN Plan,” New York Times, Feb. 13, 1993, 4, col.2,quoting UN official that, “this operation [UN intervention inSomalia] is precedent—setting because Somalia was deemed bythe Security Council as a state without a government.”68The closest the Council has come, in the post cold war period, to linking governmentalviolation of nationals rights to threats to international peace, without relying on theadditional factor of regional tension consequent on the outflow of refugees acrossinternational borders may be found in its handling of the Haitian crisis. The Haitian crisisis ongoing.(iii) HAITI. 1993.Following the ouster of the constitutional government of Jean-Bertrand Aristide by themilitary in September 1991, a wave of human rights atrocities were unleashed on thedeposed President’s local supporters.’85The incumbent defacto government led by armycommander General Raoul Cedras is believed to be behind these atrocities which areongoing.’86 The violations have in part precipitated a massive outflow of refugees toneighbouring countries such as the U.S. and the Dominican Republic. However, at thetime Security Council Resolution 841’ was adopted, it was difficult to isolate theexistence of actual or imminent regional tension ensuing from the refugee exodus.’88185 Caputo, Dante, “Haiti Un Cri de Coeur,” Parliamentariansfor Global Action, Sept. 1993, 7, col. 3.186 Ibid.187 Security Council Resolution 841 (1993), reprinted in,32 I.L.M. 1206 (hereinafter, S/C Res. 841.)188 See, Cerna, CM., “The Case of Haiti before theOrganisation of American States, Self—Determination of Peoplesand Polities,” (Panel Discussion) Proceedings of the AnnualMeeting, Am. Soc. Int’l. L. Annual 1992, 369, 381—383, statingthat although the Organisation of American States had imposed69The Council nonetheless found the existence of a threat to international peace andsecurity.189 In so doing the Council placed emphasis on “the incidence of humanitariancrisis [largely perpetrated by the defacto government] including mass displacements ofpopulation . .“in making that finding.’90 No allusions were made to the transboundarytensions relied upon in the Iraqi case.The Somali and Haitian cases taken together appear to suggest that in so far as thegovernmental violations result in massive outflow of refugees across international bordersthe ingredients for finding a threat to the peace exists. It may not be a prerequisite to thefinding of a threat to international peace that regional tensions be consequent on refugeeoutflows.Analyzing the Council’s practice with specific reference to Security Council Resolutions688, 794, and 841, one sees a growing willingness in the Council to extend thea trade embargo against Haiti, the U.S. government in earlyFebruary 1992, unilaterally decided to relax its enforcementof the embargo. Also that “larger Latin American nationsappeared) reluctant to use force with regard to Haiti....”See also, “Cedras Thumbs His Nose,” The Economist, Nov. 6,1993, 43, col. 3, stating that, neighbouring DominicanRepublic “has long turned a blind eye to contraband goodsflowing across [its borders to Haiti). The above accounts areindicative of the state of affairs at the time the SecurityCouncil made its first finding of the existence of a threat tothe peace.189 S/C Res. 841, preambulars 9, 14.190 Ibid.70traditional interpretation of threat to the peace (that is palpable interstate hostilities) toinclude situations where the potential for such threats exist. However, it may bepremature to say that the Council’s current practice indicates the Council’s recognitionof a general rule that governmental violation of the rights of nationals accompanied byan outflow of refugees creates threats to international peace. The Council has beencareful to emphasise that its characterisations were limited to the instant cases itconsidered.’9’The Council’s progressive but cautious approach is a reflection that the Council may notwant to strain the new found cooperation that exists amongst its permanent membershipby doing what it may believe, to be too much all at once.192191 See, e.g. S/C Res 841 preambular, 14, stating that ,“determining that, in these unique and exceptionalcircumstances, [emphasis added) the continuation of thissituation threatens international peace and security in theregion....acting therefore, under Chapter VII ..“ Note alsostatement by UN official that the Council authorisedintervention in Somalia was unique because the Council deemedSomalia to be a country without a government. See, supra, note184.192 It must nonetheless be noted that the finding of a threatto international peace is essentially a question of fact.See,“Rhodesia,” supra, note 97 at 8.History both past and current have revealed the real linkagebetween the consequences of extensive, and persistent abuse ofthe fundamental human rights of nationals by governments andthreats to international peace. The threats may lay in:(i) the real likelihood of unilateral humanitarianintervention (See, Fonteyne, Jean—Pierre, L., “The CustomaryInternational Law Doctrine of Humanitarian Interventions:ItsCurrent Validity Under the United Nations Charter,” (1980) 17Comp. Int’l. L. Q. 27, 83, stating that past ineffectivenessor inaction of the UN was used to justify unilateralinterventions;71Security Council resolutions 688, 794, and 841 indicate that the Council is developingits practice slowly but definitely in the direction of protecting nationals againstgovernmental abuse of their rights. This it is doing through expanding its perception ofmatters which create threats to international peace to include the consequences of somegovernmental violations of the fundamental human rights of their nationals.The Council, having made a determination that the consequences of governmentalviolation of the rights of nationals has created a threat to international peace, may underthe UN Charter, resort to coercive measures (including the use of armed force) tomaintain international peace. That is the subject of the next chapter.(ii) oppressed nationals finally taking up arms to defendthemselves with the attendant transboundary consequencesrecent vindications of this view include the 1990 Liberiancivil war, the 1991-93 Somali civil war and the ongoing civilwar in Rwanda which all had their roots in armed rebellion ofsome nationals against repressive governments.The danger of armed rebellion is recognised in the UniversalDeclaration of Human Rights. Its preamble states in part that,respect of fundamental human rights “is the foundation offreedom... and peace in the world” and that governmentalviolation of rights tantamount to “tyranny and oppression” maycompel humankind as a last resort, to take up arms inrebellion.See also, Nafziger, J.A.R., “Self—Determination andHumanitarian Intervention in a Community of Power,” (1991) 20Deny. J. Int.L & Pol’y 9, 31, stating that, “large scaledeprivations of human rights unquestionably [emphasis added)threatens international peace and security”;See, “Rhodesia,” supra, note 97 at 18, stating that, “in thecontemporary world, international peace and security areinescapably interdependent [emphasis added) and that theimpact of the flagrant violation of the most basic humanrights of the great mass of the people in a community cannotpossibly stop short within the territorial boundaries in whichthe physical manifestations of such deprivations first occur.”72CHAPTER THREETHE UN’s USE OF ARMED FORCE IN PROTECTION OF THE RIGHTSOF NATIONALSThe use of armed force or use of force’93 is one of the measures that the UN Charterpermits the Council to authorise in the execution of its mandate of maintaining orrestoring international peace and security.’ It remains to be ascertained whether thereare additional factors which have to be complied with before the constitutional legitimacyfor the application of armed force will be complete.’954.0 PREREOUISIThS TO THE APPLICATION OF ARMED FORCE.Article 42 provides for the use of armed force where the Council considers, “thatmeasures provided for in Article 41 would be inadequate or have proved to be193 The use of force may be “either in the form of directmilitary action” or “in the indirect form of support forarmed activities within f a) state.” See, Nicaraguaversus United States, supra, note 2, para. 203.194 Art. 42 provides in part that “the Security Council maytake such action by air, sea, or land forces as may benecessary to maintain or restore international peace andsecurity.”195 Art. 39 of the UN Charter states, “the Security Council....shall decide what measures shall be taken inaccordance with Articles 41 and 42 [emphasis added), tomaintain or restore international peace and security.”73inadequate.” Two issues arise from the above. First, does the Council have to applymeasures not involving the use of armed force before it may legitimately resort to armedforce? Second, is the express determination or finding by the Council of the inadequacyof measures not involving the use of armed force a precondition to the application ofarmed force?(a) Prior Application of Article 41 Measures Precondition to the Use ofArmed Force?The legal position with respect to this issue appears to be that the prior application ofarticle 41 measures (measures not involving the use of armed force) is not a preconditionto the application of armed force.Article 41 confers a discretion on the Council as to whether or not to apply measures notinvolving the use of armed force. This discretion may be found in part, in the use of apermissive word “may” to refer to the Council’s decision with respect to the applicationarticle 41 measures.’ The view that the use of force is not preconditioned on the priorapplication of non-armed force measures is further strengthened by Article 42 of the UNCharter.196 Art. 41 provides for the application of “measures notinvolving the use of armed force...” Such measures includebut are not limited to sanctions. The sanctions may beeconomic, diplomatic or military, inter alia. Ibid.197 The relevant phrase in Art. 41 reads thus “the SecurityCouncil may [emphasis added] decide what measures notinvolving the use of armed force are to be employed.”74Article 42 permits the application of armed force (in the context of maintaining orrestoring international peace) on two alternate grounds. These are where Article 41measures “would be inadequate” or “have proved to be inadequate” •198 The formerground may be read as envisaging situations where article 41 measures have not beenapplied at all because of a belief in their inadequacy.Articles 41 and 42 read together suggests that its drafters intended to give the Council“a discretion in the choice of measures for maintaining or restoring international peaceand security.”1 At first blush it appears that this discretion in the choice of measuresis indicative that the Council is not obliged to authorise the use of armed force in defenceof the rights of nationals where the consequences of governmental repression has createda threat to the peace.It is submitted, however, that where the following two elements are present the UN maybe obligated to authorise the UN’s use of armed force. First, the particular circumstancesof the threat to the peace must be such that it appears the use of armed force is the onlyeffective measure that may prevent a breach of the peace. And second, the UN has therequisite resources to apply armed force. This submission is made on the basis that, the198 The instant phrase in Art.41 reads thus, “should theSecurity Council consider that measures provided for inArticle 41 would be inadequate or have proved to beinadequate, it may take such action by air, sea,or land forcesas may be necessary to maintain or restore international peaceand security.”199 See, “Rhodesia,” supra, note 97 at 6—7.75Council, is required under the UN Charter, to take effective measures [emphasis added]in accordance with Articles 41 and 42 to maintain international peace and security.200Thus, where the use of armed force appears to be the only effective measure that couldeliminate the threat to international peace, and the UN has the necessary resources toapply armed force, the non-use of force under those circumstances may amount to theCouncil shirking its primary responsibility, under the UN Charter, to maintaininternational peace.201(b) Application of Anned Force Conditional on Security Council’s PriorExpress Determination of the Inadequacy of Article 41 Measures?This issue arose during the Council’s discussion of Security Council Resolution 678.202Cuba and Yemen, non-permanent members of the Council, questioned the constitutionalvalidity of the Council’s authorization of the use of armed force, their main bone ofcontention being that the Council had not made an express determination that the200 See, Art. 39.201 See, Art. 24.202 Security Council Resolution 678 (1990), reprinted in,29 I.L.M. 1565. The resolution authorized states cooperatingwith Kuwait to use, “all necessary means to uphold andimplement” the Council’s resolutions demanding that Iraqwithdraw unconditionally from Kuwait on or before the 15th ofJanuary, 1991. In an earlier resolution the Council hadimposed mandatory, comprehensive sanctions on Iraq. See,Security Council Resolution 661 (1990), reprinted in, Ibid.,1325.76sanctions were inadequate or had proved to be inadequate.2°3 The Council admittedlyhad not made an express determination as to the inadequacy or otherwise of thesanctions. 204A reading of the Charter, though, does not reveal a requirement for such an expressdetermination prior to the authorization of the use of armed force.Article 42 which deals with the Council’s authorization of armed force begins, “shouldthe Council consider that the application of Article 41 measures are inadequate or haveproved to be inadequate....” The form in which such consideration may be expressed isnot specified. It is submitted that the non-specification of the form in which the Councilmay express this determination, taken together with the general connotations of the term“consider”, may be read as conferring on the Council a discretion in the choice of meansto express its determinationFor example, the Council by authorizing the use of armed force against Iraq may bedeemed to have impliedly determined that the Article 41 measures it had imposed on Iraqhad proved inadequate. This inference may be drawn as, the authorization of the use ofarmed force was directed at achieving the same purpose that the sanctions were intended203 See, “Gulf Conflict,” supra, note 135 at 462.204 Ibid., stating that, “it is true that the Council did notformally declare the inadequacy of the economic sanctionsunder article 41.”77to do. Namely to coerce Iraq to withdraw unconditionally from Kuwait by January 15,1990.The essential thesis of the above discussion is that, first, the Council need not necessarilyapply measures not involving the use of force before it can authorize the use of armedforce. Second, that the Council is not required to make an express determination of theinadequacy of non-armed force measures before it may resort to the application of armedforce. Its application of armed force may be deemed to be an implied determination ofthe inadequacy of non-armed force measures.(c) Maintenance and/or Restoration of International Peace.Another factor bearing on the constitutional legitimacy of UN’s use of armed forceunder its Charter, in defence of the rights of nationals is the impact of the armed forceon the maintenance of international peace and security.205 Where the circumstances aresuch that the application of armed force will only serve to exacerbate the threat tointernational peace, then, perhaps, the constitutional legitimacy for the application ofarmed force may be in doubt.206205 As will be recalled, UN military intervention is beinginvoked on the basis that the consequences of governmentalrepression has created a threat to international peace. Art.39 of the Charter envisages that the resort to armed forcewill be directed at maintaining international peace.206 Ibid.78Circumstances which may contribute negatively to the maintenance of the peace includesituations where some states are politically opposed to the UN’s military intervention andactively intend to lend substantial military support to the target government. Anothernegative factor may be the high probability that the UN military intervention may bogdown in a war of attrition.A war of attrition may lead to high UN troop casualties, and this may cause some stateswhich may have contributed to the UN contingent to get directly involved in the conflict.This they may do in the hope of protecting their units, part of the UN force. The directparticipation of the troop contributing states may serve to widen the arena of conflictacross international borders.In sum, notwithstanding the existence of the threat to the peace, where the circumstancesare such that the UN’s application of armed force may serve as a catalyst to the breachof international peace, the UN may not legitimately resort to armed force in defence ofoppressed nationals.794.1 THE VIABILITY OF THE UN’s USE OF ARMED FORCE TO PROTECTNATIONALS.Notwithstanding the legitimising grounds for the authorization of the use of armed forcein defence of the rights of nationals it remains questionable whether such force maycontribute positively to the defence of the rights of nationals.First, there exists the high probability that the intended beneficiaries of the use of armedforce (nationals) may be caught in the crossfire between UN troops and those of thetarget repressive government.207 The probability of the nationals being caught in acrossfire exists in geographical circumstances where the target government and itssupporters are intermingled with the oppressed local population. Such intermingling maymake it difficult to establish, away from the local population, clear battle lines . TheUN’s experience in the recent Somali crisis vindicates this view.(i) SOMALIA. 1993.The UN Security Council ordered the arrest of a local warlord whom was believed tohave been behind the killing of some 23 Pakistani UN peacekeepers.208 To facilitate207 It is assumed that the armed force will be directed at theperpetrators of the human rights violations, that is thegovernment and its agents.208 See, “Making Monkeys of the UN,” The Economist, Jul. 10,1993, 4, col.1, stating that General Farah Aidid, a localwarlord was believed to have been behind the 5th June killingof 23 Pakistani soldiers by a local militia (hereinafter,“Monkeys.”)80this arrest UN troops were mandated to use armed force, if necessary, against the targetlocal warlord and his militia.209 The target warlord and his armed supporters wereintermingled with the local civilian. It was nigh impossible to isolate or create clear battlelines away from the local civilian population. Armed force was thus applied in residentialareas creating an urban warfare scenario.210During the approximately four and a half months that the UN relied on armed force inits bid to arrest the target warlord an estimated 6,000-10,000 civilian casualties, mostlywomen and children were inflicted on the Somali population.21’Despite the use ofarmed force the UN was unable to effect the arrest of the warlord. In the opinion of 26international relief agencies then working in Somalia, “the [military] tactics used by theUnited Nations peacekeeping forces in Somalia [had] caused unnecessary civiliancasualties and hindered the distribution of aid.”212209 See, Security Council Resolution 837 (1993), in,Resolutions and Decisions of the Security Council, 1993 --S/INF/49 (SCOR, 48th year), providing that UN troops use “allnecessary means” to arrest those behind the June 5th killings.210 See, “Monkeys,” supra, note 208 at col. 3, quoting UNoff icial describing clashes between UN troops and Aidid’smilitia as “urban guerilla wars.”211 See, Schmidt, Eric, “Somali War Casualties May Be 10,000,”New York Times, Dec.8, 1993, A14, col.1, (hereinafter,“Somali Casualties.”)212 This view was expressed in a memorandum they submitted toUN secretary—general, Bhoutros—Bhoutros Ghali. See, “UNTactics in Somalia ‘Excessive’ ,“ Manchester Guardian Weekly,Aug. 22, 1993, 3, col.2.81The inappropriateness of the use of force in defending the rights of nationals where thetargets (be they governments or warlords) are intermingled with the local civilianpopulation and difficult to isolate, was later recognised by the Security Council.213 TheCouncil, as a result called off its hunt for the target warlord.214The Somali experience also revealed that there exists a strong probability that highcivilian casualties amongst the local population may result in a loss of support bothinternationally and locally for the UN’s reliance on armed force.A consequence of this loss of support internationally may take the form of some membercountries refusing to lend material and political support to subsequent uses of armedforce by the UN and/or withdrawing or relocating their troop units which may be part213 See, “UN Calls off Hunt for Aidid,” Reuters News Acency,Nov.17, 1993, quoting British representative to the SecurityCouncil to the effect that the Security Council recognized,“there were aspects of the earlier approach (use of forceagainst the local warlord) which were not working.”See also, “Somali Casualties,” suDra, note 211, quoting U.S.Pentagon officials that the high casualties amongst noncombatant Somalis highlighted “the problems peacekeepingforces face in trying to avoid civilian casualties whilewaging urban warfare.”Lorch, Donatella, “Somalis Mired in War, Torn by FeelingsAbout Americans,” New York Times, Oct. 17, 1993, A6, col.5,stating that “in guerilla war it is often impossible to tellthe difference between combatants and civilians.”214 Ibid. The UN now limited its use of armed force to selfdefence and the protection of relief personnel.82of the UN armed force.215 On the local front the civilian population may turn againstthe UN, refusing to cooperate in facilitating UN humanitarian efforts in the country.216Another factor which may impact negatively on the UN’s reliance on armed force inscenarios where there exists a high probability of civilian casualties is the probability thatthe target repressive government may exploit civilian casualties to its politicaladvantage.2171 Somalia for example, Aidid, widely believed to be inhibiting the UN215 See, for e.g., Richburg, Keith, “Italians to LeaveMogadishu,” Manchester Guardian Weekly, Aug.22, 1993, 18,col.1, stating that Italy had decided to withdraw its troops,part of the UN military operation in the Somali capital“because of disagreement with the UN’s methods (use of force)and philosophy in opposing fugitive militia leader.... Aidid.”(hereinafter, “Italians Leave Mogadishu.”)Italy also called for an end to the UN’s use of armed force.See, “Italy Seeks Halt to Peacekeepers Fighting,” The Globeand Mail, Jul.13, 1993, Al, col.1 & 2.216 See, “Hope Behind the Horror,” The Economist, Jun. 19,1993, 41, col.1, stating that, “the killing of civilians by[UN) Pakistani troops had turned some [Somalis) bitterlyagainst the UN,” (hereinafter, “Behind the Horror.”)See also, York, Geoffrey, “What Went So Wrong In Somalia ?,“The Globe and Mail, Jul. 15, 1993, Al, col.5, intimating thatfollowing UN inflicted civilian casualties many local Somaliswere “now very, very angry [and there was now) a.. .divorcebetween the UN and the Somali people.”Note also, Ibid., quoting Mr. Sahnoun former UN envoy toSomalia, that following the civilian casualties, “the Somalipeople feel now that it [UN peacekeepers) is now an occupationforce with a hidden agenda to take over the country, they donot feel that the UN troops have come to protect thehumanitarian assistance.”217 See, “Behind the Horror,” supra, note 216, col. 2 & 3,implying that Aidid’s visits to injured Somalis and his clevertactic of asking them to cooperate with the UN, helped enhancehis political stature.83humanitarian mission in the country, greatly profited from the backlash consequent onUN inflicted civilian casualties. Many Somalis who prior to the UN inflicted civiliancasualties were opposed to Aidid now rallied around him to fight off the common enemy,the UN.218The above factors, especially as revealed in the Somali case, suggests that the use ofarmed force by the UN, against repressive governments to protect the rights of nationals,may detract from, rather than enhance their human rights.This is not to suggest that in all cases the use of armed force may be inappropriate orcontribute negatively to the defence of the rights of nationals. Armed force may beappropriate in circumstances where it is possible to geographically isolate the targetgovernment and its troops, from the local population. This may significantly reduce theprobability of the intended beneficiaries (nationals) of the UN’ s use of armed force, frombeing caught in the probable crossfire.See also, Richburg, Keith, “Truce Takes Grip in Somalia,”Manchester Guardian Weekly, Oct. 17, 1993, 16, col.5, quotingIkram, commander of the Pakistani UN contingent, that, the UNcampaign to arrest Aidid had “probably made Aidid a hero.”218 See, “Somali Casualties,” supra, note 211, stating that theSomali civilian casualties influenced many Somalis, “many ofwhom did not agree with General Aidid, to rally) around himwhen the UN tried to arrest him. ...“See also, “Monkeys,” supra, note 208, stating that by virtueof the UN’s hunt for him Aidid “achieved the status of amartyr among his...clan.”84The positive effect of the UN authorised air strikes against Bosnian Serb troops andmilitary equipment appears to support this view.219 Before elaborating on this pointsome background to the ongoing Bosnian civil war may be helpful.(ii) BOSNIA-HERCEGOVINA.The secession of Bosnia from the former Yugoslavia, precipitated a secessionist moveby Bosnian Serbs to form a state of their own in Bosnia.220 The secessionist bid byBosnian Serbs degenerated into a civil war with the Bosnian Muslims.22’ The UN withthe consent of the parties to the Bosnian civil war established a 9000 strong peacekeepingforce in Bosnia.222 This force was mandated to supervise a non-existent ceasefirebetween the warring parties, and to provide and protect the UN-led distribution of219 Under an arrangement between the UN and The North AtlanticTreaty Organisation (N.A.T.O.), the UN may call upon N.A.T.O.to launch air strikes against Bosnian Serb troops and militaryequipment, where Bosnian Serb troops were endangering thelives of UN peacekeeping personnel in Bosnia or its reliefefforts. The UN secretary—general has been mandated by theSecurity Council to call for such air strikes. The secretary—general in turn, has delegated this authority to his specialenvoy to Yugoslavia,who works closely with the militarycommander of UN troops in Bosnia. See, Gordon, M.R., “SerbsSlip Away as U.S. Gunships Wait,” New York Times, Mar.14,1994, A7, col.4.220 The Bosnian secessionists call their “new state” SerbianRepublic of Bosnia—Hercegovina. See, Glenny, Misha,“Yugoslavia, the Revenger’s Tragedy,” Vol. XXXIV New YorkReview of Books, Aug. 13, 1992, 37.221 Ibid.222 This force is part of the UN Protection Forces in theformer Yugoslavia (UNPROFOR). See, “UN Recommends Sending MoreTroops to Bosnia,” The Globe and Mail, Jun. 5, 1993, A13,col.1—3.85humanitarian aid to needy Bosnians.223The UN envisaged that, were the need for the application of armed force to arise in itsprotection of the “safe havens”, the armed force will be provided by N.A.T.O. in theform of air strikes against offending Bosnian Serb troops.224The geographical dynamics of the Bosnian situation made it possible to isolate or identifyclear battle lines between the opposing parties to the Bosnian civil war. The warringBosnian Muslims and Serbs have in the waging of this war, occupied areas sufficientlygeographically distinct from each other.This geographical scenario has proved favourable to focusing the full impact of UNauthorised application of armed force against the Bosnian Serbs.225 Also the relatively223 However with the strong evidence that Bosnian Muslimsespecially the civilians in six cities designated by the UN as“safe havens”, were the people in most peril from Serbianartillery, the UN troops were mandated to protect them. Thoughthe form the protection was to take was not clear, it wasunderstood that the UN troops were not to use armed forceexcept in self defence. See, Ibid.224 See, suDra, note 219, recounting the arrangement between UNand N.A.T.O. for N.A.T.O. air support at the request of the UNto defend UN personnel and its humanitarian relief operations.225 The UN called for N.A.T.O. air strikes against Bosnian Serbtroops engaged in the shelling of the Bosnian Muslim city ofSarajevo. The air strikes were to come into effect if theSerbs failed to comply with a UN ultimatum to stop theirshelling of Sarajevo and to remove their heavy weapons 12.4miles from the beleaguered city. See, Gordon, M.R., “SerbsSlip Away as U.S Gunships Wait,” New York Times, Mar.14, 1994,A7, col.4.86ideal geographical scenario was a significant factor contributing to N.A.T.O. acceptingthe UN’s request to use its air power.226Other cases in Bosnia where force or threat thereof (in the form of N.A.T.O. air strikes)was successfully used in alleviating the violation of the human rights of Bosnian Muslimsby the Bosnian Serb troops, include the Bosnian cities of Gorazde,227 Tuzla,228Bihac,229 Srebrenica and Zepa.23° The common denominator in all these cases was226 See, Gordon, M.R., “Pentagon Wary of the Role of Air Powerin Bosnia,” New York Times, Mar.15, 1994, A4, col.4, quotingGeneral Shalikashvili, Chairman of U.S. Joint Chiefs of Staff,that, “Sarajevo was a special case because the Serbs artillerypositions were in open country...” See also, Ibid., at col.3,quoting William J. Perry, U.S. Defense Secretary thus, “airpower in situations where the combatants were close togethercould increase civilian casualties.”227 Bosnian Serb troops initially refused to comply with a UNultimatum to stop shelling Gorazde, but following N.A.T.O.bombings of their artillery positions, they withdrew theirtroops and heavy guns. See, Sudetic, Chuck, “Shelling ofGorazde Declines,” New York Times, Apr.13, 1994, A6, col. 1,stating that, “besieging Serbian nationalist forces heededUnited Nations warnings of further air strikes unless theirguns were silenced.”228 See, Allesandra, Stanley, “Bosnian Serbs Yield on ReliefAirlift,” New York Times, Mar.2, 1994, A4, col.1, stating thatBosnian Serbs on March 2nd, met a March 7th UN deadline thatthey allow the Tuzia airport to be used by flights carryingfood and medicine or face the prospect of N.A.T.O. airstrikes.229 See, Whitney, Craig,R., “NATO Warns Serbs to Halt Attacksor Face Bombings,” New York Times, Apr. 23, 1994, Al, col.1-2,stating that N.A.T.O. extended its air protection overSarajevo and Gorazde to include Tuzia, Bihac, Srebrenica, andZepa. The Serbs were prohibited from moving any heavy weaponswithin 12.4 miles of the above cities on pain of further airstrikes.230 Ibid.87the militarily significant geographical separation between the intended beneficiaries of theuse of armed force (Bosnian Muslims) and the dominant violators of their human rights(the Bosnian Serb armies).With the existence of clear battle lines, the danger of Bosnian Muslims being caught inthe crossfire between N.A.T.O. air forces and Bosnian Serb ground troops was greatlydiminished. Consequently the viability of the use of armed force to protect the humanrights of the Bosnian Muslims enhanced.23’Notwithstanding the geographical compatibility of the Bosnian scenario to the UN’s useof armed force, it remains doubtful whether the UN by itself may be able to effectivelyapply such force.232 The UN in a practical sense lacks the infrastructure necessary forthe effective application of armed force. This weakness impacts negatively on theviability of its use of armed force even in favourable geographical scenarios as in Bosnia.231 See, Cohen, Roger, “Bowing to NATO Serbs Pull Back FromMuslim City,” New York Times, Apr. 25, 1994, Al, col.6,quoting Yasushi Akashi, top UN official in Bosnia thus, “thesituation is not perfect, but the progress issubstantial. . .the Serbs have moved from refusal, toreluctance, to compliance and now toward full compliance andyou have to consider this,” (hereinafter, “Serbs Pull Back.”)232 Though the Bosnian air strikes attest to the viability ofthe use of armed force under such favourable geographicalscenarios,it is worthy of note that the armed force wasdirectly applied by N.A.T.O. and not by UN troops.88(iv) LACK OF ADEOUATE INFRASTRUCTURE.First,it has no standing army.233 To that extent the UN has and continues to rely onvoluntary troop contributions of member states to form its military missions.The timeliness, quality, and quantity of these voluntary contributions are themselves,subject to the peculiar and dynamic domestic circumstances of actual or potentialcontributing states. These circumstances include issues of national interest; publicopinion; foreign policy; ability to equip, transport and support troops; and nationalcasualty tolerance levels.Many states appear unwilling to contribute troops to UN military missions, which mayinvolve the use of armed force, for fear that their troops may suffer “unacceptable233 Under the collective security system envisaged under theUN Charter, the UN was to have a standing army. This was totake the form of an agreed number of armed forces andsupporting equipment pledged by member states to the UN, andwhom the UN could have assess to upon request. Member stateswould have been obliged to make available the troops infulfilment of agreements they had entered into with theSecurity Council to that effect. Thus such troops whenrequested by the Council under the terms of the envisagedagreements, may not strictly speaking, be referred to asvoluntary troop contributions by member states. See, Art. 43of the UN Charter.The agreements envisaged under the collective security schemehave however not been entered into, partly because of the coldwar which ended in 1989. Currently, efforts are under way toimplement Art. 43. See, Hossie, Linda, “UN Wrestling with NewRole,” The Globe and Mail, May 22, 1993, A9, col.3, statingthat, “a seven—nation team has been commissioned to negotiateagreements with UN member states to provide standing forces,”(hereinafter, “UN Wrestles.”)89casualties.”2What amounts to unacceptable casualties remains a relative questiondependant on the particular tolerance levels of each state.235 This unwillingness tocontribute troops thus presents the UN with a smaller pool of countries willing tocontribute troops to its military missions.Another factor inhibiting the UN’s mobilisation of adequate armed force is the problemof insufficient financial resources?6 Though member states contribute the troops andlogistics the UN remains directly financially responsible for the pecuniary expenses of234 See, Lewis, Paul, “Peacekeeper in Chief Needs Soldiers,”New York Times, Mar.4, 1994, A5, col.1, stating that, “manygovernments are reluctant to risk their soldiers lives in theincreasingly dangerous missions the UN is being asked toundertake,” (hereinafter, “UN Needs Soldiers.”)See also, Greenhouse, Steven, “Georgia Asks U.S to BackForce,” New York Times, Mar.10, 1994, A6, col.1, stating thatBill Clinton, U.S. President, said he will support UNdeployment of troops in Georgia on certain conditions onebeing that the U.S. is not called upon to contribute troops.235 Examples of tolerance levels include; (i) Italy’swithdrawal of its troop contingent in Mogadishu following thekilling of three Italian soldiers. See, “Italians LeaveMogadishu,” supra, note 215.(ii) U.S. phased troop withdrawal from Somalia following deathin combat of 18 U.S troops. See, “U.S to Remove, 2,500 troopsfrom Somalia by Christmas,” The Globe and Mail, Dec. 13, 1993,AlO.(iii) Belgian withdrawal from Rwanda following death of 10Belgian UN peacekeeping troops. See, Sciolino, Elaine, “Forthe West, Rwanda is not Worth the Political Candle,” New YorkTimes, Apr. 15, 1994, A3, col. 2, (hereinafter, “Rwanda”)236 See, “UN Needs Soldiers,” supra, note 234 at col.2, quotingKofi Annan, the head of UN peacekeeping department that, “wecan’t get troops because we haven’t the money to pay forthem90running UN military missions.237The Somali experience revealed that the financial costs of running UN military missionswhich involve the use of armed force may be very high and perhaps beyond the presentfinancial resources of the UN.238 The high financial cost of the Somali UN militaryoperation has made countries, who pay relatively higher peacekeeping dues, wary ofendorsing further UN military missions. More so, where large armed forces are neededand there exists the probability that armed force may have to be applied over a longperiod of time.239237 The UN runs these missions primarily from peacekeeping duespaid by member states. See, Ibid., stating that as of March1994, unpaid peacekeeping dues from UN members stood at about1.4 billion U.S. dollars.238 It has been estimated that it cost the UN 1.5 billion U.S.dollars to run its military mission in Somalia during oneyear. The U.N force, during the period in question was 25,000strong. See, Oakley, Robert, “A UN Volunteer Force——TheProspects,” Vol.XL New York Review of Books, Jul.15, 1993, 52,ccl. 2.239 See,for example, Lewis, Paul, “Security Council Votes toCut Rwanda Peacekeeping Force,” New York Times, Apr. 22, 1994,Al, col. 1, stating that the probability that a largepeacekeeping force comparable to the UN force used in Somali,was needed in order to impose peace in the Rwandan civil war,was a factor in the Security Council’s unanimous decision toreduce the UN troop strength to about 250 men.See also, Lewis, Paul, “U.S. Reverses Position at UN onSending Troops to the Balkans,” New York Times, Apr.1, 1994,A2, col.1 recounting that the U.S. on March 31, blockedSecurity Council move to send an additional 10,000 troops toBosnia because the U.S. “was not sure Congress would agree topay U.S. share of the extra cost.” It however agreed to 2,500troops.91Noting also that many developing countries willing to contribute troops, are unable to doso, “if they have to pay themselves,” it appears doubtful that the UN by itself may beable to put together and sustain a force of sufficient strength to effectively exert armedforce in defence of the rights of nationals even under favourable geographical conditionsas in Bosnia.24°Last but not least, the UN lacks the necessary staff and command structure to effectivelycoordinate its use of armed force.24’ Somalia, where armed force was used by the UNin defence of the fundamental human rights of the local population endangered by theactivities of local militias, laid bare some deficiencies in the UN command structure.First, some troops though understood to be serving under UN command, waited fororders from their home countries.242It has been suggested that a reason for the unwillingness of some troops contributing240“UN Needs Soldiers,” supra, note 234, quoting head of UNpeacekeeping department that, “frankly if the response ofgovernments remains the way it is today, we couldn’t getanother mission off the ground.”241 At March 1994, the UN peacekeeping department (the UNdepartment that coordinates UN military missions) had a staffof about 130. About 50 of these were military officers “mostlent by their governments,” with the rest being civilianstaff. This department responsible for keeping track ofalmost 90,000 troops currently serving in UN peacekeepingmissions around the world, has been described as “heavilyoverworked.”See, “UN Needs Soldiers,” supra, note 234, col.1;“UN Wrestling,” supra, note 233, col.4.242 See, Lorch, Donatella, “ What Began as a Mission of MercyCloses with little Ceremony,” New York Times, Mar. 26, 1994,A2, col.2.92countries to place their troops fully under UN command in missions involving the useof armed force, seems to be lack of faith in the ability of the UN and its commandersto make decisions which will not only contribute positively to the effective utilisation ofthe force available, but also serve to protect their troop units. It does not seem likely thatthis lack of faith in the UN command structure, may be quickly become a thing of thepast.243The negative effect of a diffuse command structure on the successful application of armedforce was also highlighted in Somalia.243 The problem appears to be not so much one of a lack ofquality UN commanders but rather the chasm that may existbetween individual state perceptions of what ought to be done,militarily speaking, and that of the UN which has to reconcilethe views of its general membership in its actions. Thisassertion is made primarily on the basis that individualstates often tend to apply subjective analysis (informed bynational interest and foreign policy objectives) in theirexpression of what they think UN commanders should do. The UNon the other hand, in its decision making, has to take intoaccount the implications of its actions on the success of theinstant endeavour, its future credibility and, on the world atlarge. For example, recently the UN rejected a request byN.A.T.O. to be allowed to bomb Bosnian Serb artillerypositions which had not fully complied with a UN ultimatum towithdraw their heavy weapons from Gorazde. N.A.T.O. was notpleased with the UN’s rejection. The UN however said that itwas not prepared to start a war simply because of the “minor”Bosnian Serb non—compliance. See, Cohen, Roger, “ Serbs ComplyWith N.A.T.O Demand on Arms Pullout,” New York Times, Apr. 27,1994, Al, col. 6, quoting Lieutenant-General Michael Rose,(commander of UN troops in Bosnia) that, “we [the UN] are notgoing to start a war for one broken—down tank.”See also, “Serbs Pull Out,” supra, note 231, at A4, col. 4—6;“Serbs Meet UN Deadline,” The Globe and Mail, Apr. 27, 1994,A5, col.3.93The United States, for example, though it placed some of its troops in Somalia under UNcommand, often sought to dictate how and when the troops were to be used, thuseffectively denying the UN commander the discretion of determining their ro1e.2 TheU.S. is on record to have asked the UN not to use its troops for patrol duties.245 Inreaction to this request, a senior UN official stated that “if the American troops do nothelp the peacekeepers fully, it will limit the flexibility of the peacekeeping force anddefinitely affect our mission.”246Some political commentators have put forward suggestions directed at enhancing theability of the UN to effectively mobilise and deploy armed force to defend the rights ofnationals.247 Those views appear to be deficient in their perception of the worth of the244 See, Sciolino, Elaine, “U.N Asked To Use American TroopsOnly In Emergency,” New York Times, Sept., 29, 1993, AlO,col.l.245 Ibid.246 Ibid.247 Some of these suggestions include; (i) the establishment ofa highly trained international volunteer armed force drawnfrom UN member states. See e.g. UN secretary—general’s“Agenda for Peace’, Preventive Diplomacy and Peacekeeping,”in, (1992) 4 African J. Int’l. & Comp. L. 740, 754.(ii) Enhancing the command structure of UN military missionsby activating and empowering the Military Staff Committeeenvisaged under Article 47 of the UN Charter. See for e.g.,Lewis, Paul, “UN Plans by U.S. and France Clash,” New YorkTimes, Feb. 2, 1992, 7, col. 1.(iii) The establishment of a UN military college to trainofficers and troops.(iv) Providing the UN with the ability to stockpile militaryequipment and, to quickly transport troops and logistics to94use of armed force, to defend nationals against governmental violation of their rights.In other words, they reflect a measurement of the effectiveness or viability of the UN’suse of armed force based on the UN’s ability to quickly mobilise and deploy asophisticated large armed force with an effective command structure. The consequencesof the application of such force against a government or local authorities as happened inSomalia, appears not to have been factored in by advocates of UN military intervention.Hence their reliance on the need for a strong UN military machinery to defend the rightsof nationals.Instead, it is submitted that the likely success of the UN’s use of armed force in defenceof the fundamental human rights of nationals must be a substantial consideration indeciding whether or not to apply armed force?8 As has been suggested in an earlierpart of this thesis, the application of armed force, in geographical scenarios as Somalia,may not contribute significantly to protecting nationals from repressive local authoritiesbe they governments or militias.249the field of operations.248 Where armed force is applied to defend nationals from arepressive government, the armed force may be directed at therepressive government or de facto local authorities, (Somalia)rather than against some government troops which aregeographically separated from the repressive government(Bosnia).249 See, supra, pp. 79—82.95The high probability of civilian casualties amongst the local population, consequent onthe application of such armed force, and the backlash such casualties may have on theinternational and local support base of the UN renders the protective value of armedforce small.250Were the UN to eliminate the inhibitory effect that the current low national tolerancelevels of troop casualties has on its ability to mobilise, deploy and maintain UN amilitary force, through having at its disposal a high powered volunteer army, the highfmancial costs of adequately maintaining and supporting such a force poses practicaldifficulties.Currently strong indicators exist suggesting that many states are not financially able orwilling to underwrite the high financial expenses that may be involved in running suchUN military missions.251 There is also the fear that there is no telling the number ofmilitary missions that the UN may be called upon to undertake.With these practical realities in mind, a forceful alternative to the UN’s use of armedforce to defend the nationals against repressive governments may have to beconsidered.This forceful alternative is the imposition of mandatory sanctions under article250 Ibid.251 See, suDra, note 234, for examples of states’ unwillingnessto underwrite extra costs involved in fielding large UNmilitary missions.9641 of the UN Charter on members of the repressive government.252252 The Council, in imposing sanctions under Article 41(Chapter VII having been legitimately invoked), may decidethat all UN member states abide by them. In that event memberstates will be bound not to violate the sanctions by virtue ofArticle 25 of the UN Charter. These sanctions may thus bedescribed as mandatory.97CHAPTER FOURMANDATORY SANCTIONS, A FORCEFUL ALTERNATIVE TO THEUN’s USE OF ARMED FORCEGenerally the track record of UN mandatory sanctions, be they economic, military,diplomatic or sports, has not been one of resounding success.253 But, the type ofmandatory sanctions being advocated in this thesis are different in their focus,constitution and time of imposition from earlier cases of mandatory sanctions imposedby the UN.2545.0 THE FORCEFUL ALTERNATIVE(a) FocusThe sanctions will be focused directly and exclusively on members of the repressivegovernment. It will thus differ from the past practice of the UN to impose the sanctionson a target state as an entity rather than directly on members of government.255253 See for e.g., “Economic Sanctions,” Fact sheet 16, CanadianInstitute for International Peace and Security, Sept., 1991,2, col..2 (hereinafter, “Economic Sanctions.”)254 Earlier cases of UN mandatory sanctions include; Rhodesia,(1966—1979); South Africa, (1977—1991); Iraq, (1990, ongoing);Libya, (1992, ongoing); Federal Republic of Yugoslavia, (1992,ongoing); Angola, (1992, ongoing); Haiti, (1993, ongoing).255 The underlying rationale for this past practice of the UNwas the view that state sanctions, especially economicsanctions, will, through invoking hardship on the localpopulation, help build domestic pressure for the localgovernment to comply with the demands of the UN. See,98Limiting the focus of the sanctions to members of the repressive government may havecertain advantages over imposing them on the state as a whole.First, it may render redundant the tendency of sanctions imposed against a state (statesanctions), to cause some of its citizens to rally around their government in a defiantmood. As has been observed, “the people are likely to work together with theirgovernment to overcome the burden of the sanctions.”256 Significantly reducing thedomestic bonding effect usually created by state sanctions, may increase the prospectsof sanctions which are focused specifically and directly at members of a repressivegovernment succeeding.A second advantage of focusing sanctions on members of the repressive governmentrather than on the state is that it reduces the probability that states with strong economicinterests in uninterrupted economic cooperation with the target state may sabotage theimplementation of economic sanctions. The fear of suffering significant economic losseshas been a contributing factor to the poor track record of UN imposed mandatoryeconomic sanctionsY57Another factor supporting the focusing of sanctions on members of the repressivegovernment is the need not to undermine the primary object of the sanctions being“Economic Sanctions,” supra, note 253, 1, col.2 & 3.256 Ibid., at col.2.257 Ibid.99advocated in this thesis, that is, the object of defending the rights of the oppressednationals. In other words, the sanctions should not have the effect of seriously impairingthe ability of the local population to attain and enjoy their human rights.Case studies have shown that where sanctions, especially economic sanctions, are focusedon a state qua state, the brunt of the sanctions are borne by the most economicallyvulnerable of the population rather than by the repressive government. The case of Haitiis a current example of the vulnerability of a local population.HAITI. 1993The UN and the Organisation of American States (O.A.S.) acting on the basis that theSeptember 1991 Haitian coup d’etat was a violation of the democratic rights of theHaitian people proceeded to impose sanctions on Haiti.258The first to put sanctions in place was the 0. A. S., which soon after the coup imposeda regional trade embargo on Haiti. It was hoped that the sanctions would invokeeconomic hardship on Haiti, and consequently coerce the coup leaders to respect thedemocratic rights of Haitians.259 This trade embargo leaked so badly that on June 23rd,258 See, S/C Res. 841, supra, note 99, particularly preaiubulars9,10 and para.16. See also, O.A.S Resolution MRE/RES 1/91OEA/SER. F/V.l, Oct.3, 1991.259 See, Bernier, Barbara, L., “Economic Development in RavagedHaiti:Is Democracy Really The Answer ?“, (1992) 11 DickinsonJournal of International Law 1, 69.1001993, the UN Security Council, persuaded by the O.A.S., imposed a “universal andmandatory” trade embargo on Haiti.26° In addition, the foreign assets of the coupleaders and the Haitian government were frozen. With the exception of the assetsfreeze,the rest of the sanctions were applied across the board to all of Haiti.26t Toalleviate the sufferings of the poor ordinary Haitian populace for whose larger interestthe sanctions had purportedly been imposed, the sanctions were said to exclude items“for verified essential humanitarian needs.”262 Such humanitarian items have includedbasic medical supplies and food staples.After close to three years of economic sanctions there exists strong evidence that thebrunt of the economic sanctions has been borne by the Haitian poor.263 One sourcedescribes their situation thus, “by some estimates, 150,000 jobs have been lost and tensof thousands of Haitians survive on handouts from humanitarian agencies”2”,a source260 See, S/C Res. 841, supra, note 99, particularly paras. 3and 9.261 Ibid., particularly para.5. The marriage of the foreignassets freeze imposed on the coup leaders with economicsanctions against the state of Haiti may have diluted theimpact of the foreign assets freeze on the coup leaders. Thehardship brought on ordinary Haitians by the economicsanctions may have led to some of them who might not havesupported the coup to band together with the coup leaders tofight off a perceived common enemy, the internationalcommunity of nations led by the UN and the U.S.262 Ibid., para 7.263 Hockstader, “Opponents of Aristide Put Resolution ofHaiti’s Crisis In Doubt”, Wash. Post, Mar.20, 1992, A21.264 See, “Haiti’s Two Solitudes”, The Globe and Mail,July 6, 1993, A18, col.2.101which itself is “in jeopardy, for lack of transport.”265 The economic sanctions imposedon Haiti has also resulted in children being malnourished and consequently, “dying attwenty times the usual rate from measles and other illnesses, which have spreaduncontrolled since earlier sanctions forced public health programmes to grind to ahalt. t266It appears that the longer economic sanctions continue against Haiti, the more difficultit will be for the local population at large to enjoy some of their fundamental humanrights, especially those that relate to the enjoyment of adequate shelter, medical care, andsustenance.267 To that extent, it appears that sanctions imposed on a state in defenceof the rights of its nationals, may rather worsen the plight of the nationals.Limiting or focusing the sanctions on members of the repressive government, may be oneway of avoiding the hardship that sanctions imposed on a state causes to the localpopulation at large.268 The sanctions need to be constituted in a manner so as to cause265 See, “Cedras Thumbs His Nose”, The Economist, Nov.6, 1993,43, col.1.266 Ibid., col. 3.267 Ibid. See also, Kolker, Claudia, “Poor Pay The Price ForSanctions,” The Globe and Mail, Oct.12, 1993, A14.268 The case for such essentially selective sanctions isperhaps strengthened by the recognition that it was theforeign assets component of the Haitian sanctions that drovesome of the backers of the defacto government amongst thewealthy Haitian elite to indirectly withdraw their support forthe defacto government. See, “Haiti’s Business Leaders PushFor Army Concessions,” The Globe and Mail, Feb.9, 1994, A5,col.5 & 6.102them to impact directly on the members of the repressive government.(b) Constitution or Composition of the Sanctions.The sanctions may include but need not be limited to;(i) A freeze on the foreign assets (liquid and capital assets) of members of the repressivegovernment and their frontmen.(ii) The imposition of international travel restrictions on members of the repressivegovernment and their frontmen.(iii) And as a final sanction, the withdrawal of international recognition for thecredentials of members of the repressive government and their frontmen as members ofthe state government. A consequence of the application of this sanction will be to deprivethe affected persons of all the privileges and immunities on the international scene thatgo with being a representative of a recognised government.As part of a mechanism to ensure that the use of the sanctions described above, willserve to discourage repressive or potentially repressive governments from becoming setin a repressive mould it is also suggested that the Security Council, which has primaryresponsibility for authorising UN intervention, specify the legal circumstances that permitthe invocation of the sanctions.103(c) A Clear Legal Basis for the Invocation of the Sanctions.The legal circumstances legitimating the invocation of the sanctions should be specifiedin a Security Council Resolution. This resolution would echo the UN Charter ground ofintervention, to wit, that the instant conduct be a threat to international peace. But moreimportantly, the resolution will go further in stating that the consequences of persistentand extensive governmental violation of the human rights of nationals creates threats tointernational peace269Further the resolution should also state that threats to international peace include potentialor/and imminent threats to international peace. Expressly including potential threats tointernational peace in the meaning of the term threats to international peace, may makeit possible for early forceful UN intervention (by way of sanctions) before an imminentthreat to international peace arises.Such a resolution will serve as advance notice to governments that, the deliberate andsystematic violation of the human rights of nationals by a government, is not only aviolation of international law, but also a ground for forceful UN intervention. Also werethis basis for UN intervention clearly spelt out in advance, it will create a more level269 But the resolution would not define what amounts to“persistent and extensive” governmental human rightsviolations. The determination of “persistent and extensive”governmental violations would be left to a specialised UNdepartment, the Governmental Sanctions Department, to beestablished by the General Assembly. For an elaboration on howthe Governmental Sanctions Department will determinepersistent and extensive violations see, infra, note 274.104playing field than exists today.The passing of the resolution being advocated herein, may give states some measure ofassurance that the permanent members of the Security Council may not abuse theirprivileged status in the Council. The abuse may lay in the Council characterisinggovernmental repression of nationals in other states (including those of the its nonpermanent members) as creating threats to the peace whilst preventing the Council fromdoing the same when the spotlight falls on comparable mistreatment of nationals bygovernments of some of the permanent members.The UN body which will be responsible for determining when the fundamental legalcircumstances, for the invocation of UN intervention by way of mandatory sanctions havearisen, would be the Governmental Sanctions Department.(d) Create a Permanent “Governmental Sanctions Department.”The General Assembly should be empowered to set up a Permanent GovernmentalSanctions Department.27°This Department may be chaired by the UN Commissioner270 This Department will be unlike other sanctions committeesset up by the Security Council in the following aspects; (i)It will be a permanent Department. Earlier sanction committeeshave had life spans concurrent with the duration of theparticular episode of sanctions they were set up to monitor.(ii) The character of the sanctions to be handled by thisDepartment, will be restricted to sanctions imposed on membersof repressive governments as a measure in protection of thefundamental human rights of nationals. The use of sanctionsfor other purposes will still remain under the present scheme105on Human Rights, and its membership should be constituted the same way as that of theSecurity Council, but without the veto privilege of the permanent members?71 TheGeneral Assembly will have the power to veto the decisions of the Department?72Thisveto must be expressed by 4/5ths of the General Assembly’s total membership.273The Department, will specialise, inter alia, in determining whether particulargovernmental violations of national rights are persistent and systematic.274 Also it willof things in the UN.271 The empowerment of the Governmental Sanctions Department inthe form being advocated, will in effect, amount to a removalfrom the Security Council of the decision whether to imposemandatory sanctions on a repressive government. Bearing inmind the important role that the influential permanent membersof the Council, play in international relations, and the needto retain their support, whilst at the same time, limitingtheir present ability in the Council, to block UN’s impositionof sanctions on a repressive government, there will be theneed to maintain a measure of their international influence inthe membership of this Department.272 This is to provide a check against the permanent members ofthe Council using their membership in the Department topromote their private interests as may be possible in theCouncil. Second, this suggestion is intended to engender moreresponsibility and cooperation, through participation, by theGeneral Assembly with respect to the active protection ofnationals against repressive governments.273 Though the right of veto may empower the General Assembly,it may be expedient to make it difficult, if not impossiblefor a few repressive, or potentially repressive governments tofrustrate the work of the Department, through the GeneralAssembly.274 This it may do, not necessarily by reference to the strictgrammatical meaning of the said terms but rather to thelikelihood that if the violations were not nipped in the bud,the danger of an armed rebellion by oppressed nationals in theforeseeable future or perhaps, even of unilateral106oversee the effective application of sanctions directed at members of repressivegovernments. To facilitate the attainment of this goal, the Department must be clothedwith jurisdiction to monitor the human rights practices of governments, and to decidewhen a pattern of repression is emerging. This could be done by sampling public opinionin the target state75It may then invoke the Security Council resolution suggested above,276 (providing thebasis for UN intervention) and request the General Assembly to recommend to the targetgovernment to abandon its repressive practices 777intervention, did exist. In making these assessments theDepartment may be guided by the fact that many of the civilwars that plaque the world today may be traced to localreaction to long term governmental repression.275 The importance of public opinion in the state governed bythe target government need not be underemphasised. First, theprobable relativity amongst some cultures in the perception ofwhether they are being oppressed by their governments,requires that before the UN intervenes, local public opinionreflects a recognition of the existence of domestic repressionor likely repression. This is necessary because, thenationals, as intended beneficiaries of the UN imposition ofsanctions, have to accept the sanctions as necessary. If theydo not, there exists the probability of they cooperating withthe target government to fight off a common enemy (the UN), byworking together to render the sanctions significantlyineffective.276 See, sura, pp. 103—104.277’ The underlying rationale for the suggestion that theGeneral Assembly make the recommendation rather than theCouncil, is to improve the chances of the recommendation beingmade, irrespective of the target government. If the Councilwere to be charged with making the instant recommendation andwere the target government one or the other of the Council’spermanent members, the affected member may resort to its vetoprivilege to block the adoption of a resolution containing theinstant recommendation.107The recommendation will serve as notice to the repressive government that UNintervention in the form of sanctions may follow swiftly if it does not comply with theAssembly’s recommendation. The Department will also be responsible for the imposition,coordinating, monitoring, and reviewing the sanctions.(e) A Phased Approach in the Imposition of Sanctions.In imposing the sanctions the Department must adopt a phased approach?78 Theapproach may be as follows; first, the freezing of any foreign assets of members of thetarget government. This first step should be accompanied, with, diplomatic efforts ledby the UN Commissioner on Human Rights to dissuade the target government fromcontinuing its evolving repressive activities.The choice of the foreign assets freeze as a first step has been influenced by a belief thatit may serve as a strong indication of UN disapproval at the continued governmentalrepression as well as not being too confrontational, thus leaving room for concurrent278 The underlying rationale for the suggested phased approachinclude (i) to slow the emergence of a highly publicconfrontational stance between the UN and the targetgovernment, hence allowing room for concurrent quiet diplomacyand affording the target state adequate room to back off withan appearance of intact dignity both domestically andinternationally.(ii) to enable the UN sway public opinion (local andinternational) in its favour in case more forceful action isrequired.This it may do by affording the target government theopportunity to acquire the dubious reputation as the partypromoting the emerging confrontation. The importance offavourable public opinion to the enforcement of sanctionscannot be overemphasised.108diplomatic dialogue.Also, applying the assets freeze, which is a coercive but not too confrontational measure,together with concurrent diplomatic efforts may afford the target government room toback down on its emerging repressive activities without appearing to lose political face.Where the assets freeze appear not to be successful, the sanctions may promptly beescalated.The next step could then be the imposition of international travel restrictions on membersof the repressive government. The last of the repressive-government-focused-sanctionsthat may be imposed, could be the withdrawal by the UN and its member states ofrecognition of individual members of the repressive government as legitimaterepresentatives of the government of the state in question. This withdrawal of recognitionwill be tantamount to denying the affected persons all the privileges and immunities onthe international plane that go with being the head, or an accredited member of arecognised government.The application of sanctions in a phased manner is seen as as ineffective. The case ofRhodesia is often cited as an example of how not to impose sanctions.279 But the phased279 For a general discussion on factors bearing on the successor otherwise of state—sanctions see, “The Gulf War: the Law ofInternational Sanctions,” (Panel Discussion), Proceedings ofthe Annual Meeting--Am. Soc. of Int’l. Law, Annual, 1991, 169-190.109approach being advocated herein differs from that of Rhodesia in not being appliedagainst a target state and most importantly, they are imposed before the targetgovernment has time to settle into a repressive mould.28°By settling in a repressivemould is meant the government has throughforce ofhabit made repression a definite partof its policy and has thus become hardened. The timely imposition of sanctions is thusvery crucial to their success.(I) Timely Imposition of Sanctions.Sanctions should be activated before the target government gets set in a repressivemould. That is, as soon as the government begins to reflect significant repressivetendencies. Indicators of these tendencies may include, local public opinion reflecting abelief that their human rights may be endangered by the emerging repressive practicesof the government; growing governmental intolerance of domestic political dissent; anemerging muzzling of the judiciary and the press.When a government has settled into a repressive mould, it will be less amenable tointernational pressure to abandon its repressive activities. Yielding to internationalpressure of any form may, in the opinion of that government, be tantamount to publiclyconceding ground on a line of conduct which it, by becoming hardened through its use,had publicly indicated to its nationals and the international community to be part of its280 In the Rhodesian episode the imposition of the sanctionsbegan well after the defacto Rhodesian government had beenpractising racial discrimination against its Black Africancitizens. See generally, “Rhodesia,” supra, note 97.110policy. Thus the fear of losing face and appearing weak may make a target governmentless amenable to any coercive measure put in place by the UN.281The importance of timeliness in the imposition of the mandatory sanctions to theirultimate success, requires that the Council unambiguously and formally recognise thatthe inherent threat that the consequences of governmental violation of the rights ofnationals pose to international peace in the short term may mature into an imminentthreat in the long term. That irrespective of the nonexistence of an actual or imminentthreat in the short term, a threat to international peace in the long term does exist.With such a clear recognition in place, the mandatory sanctions advocated herein maybe legitimately invoked, under Chapter VII of the UN Charter, and applied as a measurepreemptive or anticipatory to the actual outbreak of armed hostilities consequent on thecontinuation and escalation of the human rights violations.282 If the sanctions are281 Cases in point include Rhodesia and South Africa.282 It is quite possible that the ongoing human tragedy thathas almost torn Rwanda apart, may have been averted if the UN,prior to the outbreak of the ongoing civil chaos, had exertedcoercive pressure (perhaps in the form of government—focused—sanctions) on Rwandan authorities to respect the human rightsof all Rwandan nationals. See, “Rwanda,” supra, note 235,col.3, stating that “critics argue that the internationalcommunity squandered a chance to help Rwanda break the cycleof violence and instability in the months before the recentmassacre began. The Security Council members did not pressurethe Rwandan government to live up to its promises to respecthuman rights and curb paramilitary groups operating under itsinfluence (emphasis added).”For a background to the ongoing humanitarian crisis in Rwandasee, Schmidt, William, E., “Rwandan Capital Plagued in Terror111applied timely and objectively it may contribute significantly to successfully coercing anemerging repressive government to amend its ways. It may thus reduce the probabilityof governmental violations breeding, in the long term, local rebellion which may escalateinto a civil war which may contribute to the creation of an imminent threat tointernational peace.Also the fewer the number of civil wars caused by long term governmental repressionof nationals, the less pressure there will be for UN military intervention on behalf ofoppressed nationals. Even if the UN managed to surmount the practical problemsconstraining its mobilising and deploying armed force the military intervention may beineffective, especially where the risk of high civilian casualties exists.2835.1 CONCLUDING REMARKSas Tribes Battle,” New York Times, Apr. 9, 1994, A4.283 An exception to this view may be, where there are strongindications that, baring the use of armed force governmentalrepression may reach genocidal proportions, and that probablecivilian casualties consequent on the UN intervention, may beacceptable to the local population as a necessary price to payfor their redemption.112As has been portrayed earlier the consequences of extensive, deliberate and persistentgovernmental violation of nationals’ rights could constitute a threat to internationalpeace.284Quite apart from the issue of a threat to the peace emerging, the extent of the humansuffering that victims of governmental repression undergo necessitates bold and firmaction on the part of the UN to protect them. Considerations of national sovereigntyshould not be allowed to stand in the way of affirmative action by the UN to protect therights of nationals.The interdependent nature of states in these modern times creates a situation in which theconsequences of governmental violation of the human rights of nationals are feltinvariably, not only in the state of abuse but also in states geographically distant fromthe state of abuse. Neighbouring states may be deluged by the flow of refugees and/orbe used as staging posts for cross border incursions by nationals of the abusing state whomay have resorted to force of arms in defence of themselves.284 See, supra, pp. 57—70. Also, sura, note 192.It has also been noted that there exists a strong probabilityof high civilian casualties where armed force is applied inareas where the government is intermingled with the localpopulation hence the view that armed force may not be theappropriate measure to adopt in defence of nationals. But see,supra, note 283.113Thanks to the magic of television non-neighbouring states may find themselves pressureddomestically to contribute material resources towards humanitarian relief directed at therefugees. It is not inconceivable that sudden requests for large scale humanitarian reliefmay negatively affect the otherwise carefully planned budgetary programmes of thecontributing countries. It may be thus be in the larger interest of the internationalcommunity, working through the UN, to take the steps advocated in the thesis, directedat preempting the unjustifiable human suffering usually consequent on governmentaldisrespect of human rights.If member states of the UN permit considerations of national sovereignty to stand in theway of early and effective preemptive UN action to safeguard nationals againstgovernmental violation of their rights, these states may end up paying a higher price inthe form of threats to international peace, higher political refugee numbers, and fiscalplanning thrown off course by unbudgeted humanitarian relief contributions.The time to embrace the urgent need to protect humankind against abusive governmentsis now, and the international community of states must seize this opportunity. They mustrelegate the concept of national sovereignty, in the matter of the treatment of nationals,to the discards of civilization where it rightly belongs.The realisation of the above sentiment clearly involves uncommon political will on thepart of world leaders. They however, have to look at the vast human tragedy that has114unfolded in Rwanda in a space of just four months,285and its impact on the world at large, to see the urgency for the expression of thenecessary political will.285 For an account of the causes, nature and extent of theRwandan human tragedy see for e.g., “Rwanda,” sura, note 235.See also, Bonner, Raymond, “UN Says Help for a Million isNeeded,” New York Times, Jul. 18, 1994, Al, col.6.115SELECTED BIBLIOGRAPHYA. 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Post, Mar.20, 1992, A2l“Hope Behind the Horror,” The Economist, Jun. 19, 1993, 41Hossie, Linda, “UN Wrestling with New Role,” The Globe and Mail,May 22, 1993, A9123Hossie, Linda, “Plan to Keep World Order Threatens Sovereignty,”The Globe and Mail, May 25, 1993, A12“Italy Seeks Halt to Peacekeepers Fighting,” The Globe and Mail,Jul. 13, 1993, AlKolker, Claudia, “Poor Pay The Price For Sanctions”, The Globe andMail, Oct.12, 1993, A14Lewis, Paul, “Peacekeeper in Chief Needs Soldiers,” New York Times,Mar.4, 1994, A5Lewis, Paul, “Security Council Votes to Cut Rwanda PeacekeepingForce,” New York Times, Apr. 22, 1994, AlLewis, Paul, “U.S. Reverses Position at UN on Sending Troops to theBalkans,” New York Times, Apr. 1, 1994, A2Lewis, Paul, “UN Plans by U.S. and France Clash,” New York Times,Feb. 2, 1992, 7Lorch, Donatella, “What Began as a Mission of Mercy Closes withlittle Ceremony,” New York Times, Mar. 26, 1994, A2Lorch, Donatella, “Somalis Mired in War, Torn by Feelings AboutAmericans,” New York Times, Oct. 17, 1993, A6“Making Monkeys of the UN,” The Economist, Jul. 10, 1993, 4Mohr, “India and Pakistan Step Up Preparations for Full War, NewUnits Are Formed,” New York Times, Dec. 3, 1971, 1New York Times, Dec. 17, 1971, A16Oakley, Robert, “A UN Volunteer Force--The Prospects,” Vol.XL NewYork Review of Books, Jul. 15, 1993, 52Richburg, Keith, “Italians to Leave Mogadishu,” Manchester GuardianWeekly, Aug.22, 1993, 18Richburg, Keith, “Truce Takes Grip in Somalia,” Manchester GuardianWeekly, Oct. 17, 1993, 16124Sciolino, Elaine, “For the West, Rwanda is not Worth the PoliticalCandle,” New York Times, Apr. 15, 1994, A3Sciolino, Elaine, “U.N Asked To Use American Troops Only InEmergency,” New York Times, Sept., 29, 1993, AlOSchmitt, E., “Most US Troops will Leave Somalia by April in UNPlan,” New York Times, Feb. 13, 1993, 4Schmidt, Eric, “Somali War Casualties May Be 10,000,” New YorkTimes, Dec.8, 1993, A14Schmidt, William, E., “Rwandan Capital Plagued in Terror as TribesBattle,” New York Times, Apr. 9, 1994, A4“Serbs Meet UN Deadline,” The Globe and Mail, Apr. 27, 1994, A5Sheehan, E.R.F., “In the Heart of Somalia, Vol.XL The New YorkReview of Books, Jan. 14, 1993, 38Sudetic, Chuck, “Shelling of Gorazde Declines,” New York Times,Apr.13, 1994, A6“Swaran Singh Says India Seeks No Pakistani Land,” New York Times,Dec.13, 1971, 16“The Law Learns From The Kurds,” New York Times, Apr.14, 1991,D18“UN Calls off Hunt for Aidid,” Reuters News Agency, Nov. 17, 1993“UN Plans Largest Force in Somalia,” The Globe and Mail, Mar. 27,1993, AlO“UN Recommends Sending More Troops to Bosnia,” The Globe andMail, Jun. 5, 1993, A13“UN Tactics in Somalia ‘Excessive’,” Manchester Guardian Weekly,Aug. 22, 1993, 3“U.S. to Remove, 2,500 troops from Somalia by Christmas,” The Globeand Mail, Dec. 13, 1993, AlOWhitney, Craig,R., “NATO Warns Serbs to Halt Attacks or Face125Bombings,” New York Times, Apr. 23, 1994, AlYork, Geoffrey, “What Went So Wrong In Somalia ?“, The Globe andMail, Jul. 15, 1993, AlE. CASESTunis-Morocco Nationality Decrees, Permanent Court of InternationalJustice, Series B, No.4 (1923) 24Island of Palmas Arbitration,(1928) 22 American Journal ofInternational Law 867Corfu Channel Case [1949] International Court of Justice Reports 4Advisory Opinion in the Continued Presence of South Africa inNarnibia [19711 International Court of Justice Reports 16United States Diplomatic and Consular Staff in Tehran [1980]International Court of Justice Reports 3Case Concerning Military And Paramilitary Activities in andagainst Nicaragua (Merits) [1986] International Court of Justice Reports 14Re Akoto [1961] Ghana Law Reports 523Signature(s) removed to protect privacySignature(s) removed to protect privacy


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