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Not-So-Sacred Borders by James Kitfield

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As the United States and its NATO allies stood on the brink of war against Yugoslavia in the waning days of March, lawyers rose to sudden prominence in the high councils of the alliance. Everyone understood that an attack would violate a fundamental precept of international law, and set a new precedent for the use of military force.

For the first time, Western nations would be intervening militarily against an independent nation not because it posed a direct threat to neighbors, but because it persecuted an ethnic minority within its own borders. In striking Belgrade, NATO would bypass the United Nations and ignore the fundamental principles of sovereignty and the "Great Powers" consensus that are at the core of the United Nations charter.

In a March 23 letter to Senate Majority Leader Trent Lott, R-Miss., White House National Security Adviser Samuel R. "Sandy" Berger justified going to war on the grounds that Serbian strongman Slobodan Milosevic was a repeat offender under international law and a direct threat to the stability of the region. "It is important to note that Serbian President Milosevic initiated an aggressive war against the independent nation of Croatia in 1991; against the independent nation of Bosnia-Herzegovina in 1992; and is currently engaged in widespread repression of Kosovo, whose constitutional guarantees of autonomy he unilaterally abrogated in 1989," wrote Berger. "Arguments based on Serbian 'sovereignty' are undercut by this history."

Whatever the merit of its moral underpinnings, NATO's war with Yugoslavia crossed an important threshold in international law. The sanctity of national sovereignty has largely governed nation-state relations for the past half-century. The Allies specifically cited sovereignty as they fought the wars of aggression that haunted the first half of the 20th century, in their hope of breaking the historic pattern in which strong nations exploited the weak. And interventions on behalf of ethnic minorities don't have an entirely noble history. Adolf Hitler justified his seizure of the Sudetenland in Czechoslovakia by claiming persecution of ethnic Germans there.

The visceral opposition to the Kosovo conflict on the part of Russia, China, and India revealed just how uncomfortable some nations still are with the apparent abandonment of the principle of sovereignty, especially during a period of unrivaled U.S. military power. They point to the U.N. charter, which enshrines and protects sovereignty unless the five Great Powers on the Security Council agree to breach it.

Donald Kagan, a professor of history at Yale University, sees the Kosovo conflict as an important marker. "That the United States and its allies were willing to intervene militarily in what were the agreed borders of a sovereign state was unusual and very rare, and it raises the question of, where do we go from here," said Kagan. "I see it as part of the effort, since the end of the Cold War, to establish new rules for the international order that reduce the chance for war. I think NATO was saying sovereignty has limits, and the world will not sit by idly again and watch while a Hitler or Mao murders millions. At the same time, we shouldn't erode the principle of sovereignty lightly. Nation-states have been, are now, and will remain fundamental building blocks of international order."

Sovereign Traditions

The establishment of the nation-state as a building block of the international system--including each country's independence and its primacy over its citizenry that are at the heart of sovereignty--dates back to the Treaty of Westphalia in 1648, which ended Europe's bloody Thirty Years' War. The Westphalian system respected the territorial integrity of each nation-state, even one that had lost a war, and held that states may not interfere in the internal affairs of other states. While imperialist powers showed little compunction about intervening in "less-civilized" nations, such actions were seen among the major powers as an abrogation of accepted international norms.

After the trauma of World War II, the principle of sovereignty was codified in the U.N. charter. States would be sanctioned for acts of force against other states unless in self- defense, but within their borders, they were free to act. In the U.N. conventions on genocide and torture, however, nations also assumed a legal obligation to uphold basic human rights. And Chapter VII of the U.N. charter endorses collective action to counter "threats to international peace and security," such as internal actions that might cause massive refugee flows that could destabilize neighboring countries. In truth, as with most founding documents, the U.N. charter is subject to interpretation.

"What's happened is that the Chapter VII provisions of the U.N. charter have been interpreted more and more broadly in recent years to justify interventions in places like Somalia and Kosovo," said Stephen Garrett, a professor at the Monterey Institute of International Studies in California. "There are also contradictions between the early parts of the U.N. charter that talk about nation-state rights, and those sections which refer to the duty of the international community to uphold human rights. There's definite tension and ambiguity there."

Giving veto power to each of the five permanent Security Council members--the United States, Great Britain, France, Russia, and China--was the U.N. founders' way of precluding international action in the absence of Great Power consensus. And it worked; but it largely kept the United Nations from intervening in conflicts during the Cold War. All of that changed when the East-West standoff ended, and U.S. leaders saw an opportunity to use the collective will of the international community to turn back nation-state aggression by Iraq over Kuwait. New World Order "The United Nations had been set up to deal with one of the great scourges of mankind, which was nation-state aggression, but the Cold War had derailed its ability to deal with the problem," said Brent Scowcroft, former national security adviser to President George Bush. "In 1991, we suddenly saw a new vista where consensus was possible within the U.N. to counter nation- state aggression. That was the new world order we were talking about. What we didn't perceive was the extent to which conflicts of the 1990s would be about civil wars, internal disputes, and the breakup of countries."

In attempting to cope with humanitarian disaster and instability provoked by internal conflict in places like Somalia, Rwanda, Haiti, and Bosnia, the United States and its allies found themselves subtly reinterpreting the concepts of nation-state sovereignty and intervention. And in each case, the United Nations gave its blessing to international intervention. The process culminated in the Kosovo conflict, when NATO found itself confronting massive "ethnic cleansing" and regional destabilization in Europe growing out of a conflict on which a consensus among the Great Powers was impossible. NATO decided that national and humanitarian interests outweighed sovereignty and even U.N. collectivism.

"NATO was faced with a pragmatic question of whether the principle of sovereignty required it to sit on the sidelines of a humanitarian tragedy that was destabilizing the region, and which could possibly bring NATO partners Greece and Turkey into conflict," said Zbigniew Brzezinski, a White House national security adviser in the Carter Administration and senior analyst at the Center for Strategic and International Studies. "I would argue that was too costly a price to pay for the principle of sovereignty."

In the wake of the Kosovo conflict, a number of prominent leaders have called for an international review of the definition of a "just war," and a rewriting of the U.N. charter to facilitate humanitarian interventions.

"There is an emerging international law that countries cannot hide behind sovereignty and abuse people without expecting the rest of the world to do something about it," Kofi Annan, U.N. secretary-general, said in a May 22 speech in Stockholm, Sweden. Former NATO Secretary General Javier Solana echoes Annan's views: "We're moving into a system of international relations in which human rights, rights of minorities every day, are much more important. More important even than sovereignty."

But there is danger in consigning sovereignty to the history books. Weakening the sanctity of borders could undermine the international norms that have kept naked state-on-state aggression largely at bay in recent decades. Nations should also be wary of announcing new international principles that they lack the will to defend. On the other hand, if even a few architects of future genocide and "ethnic cleansing" feel, as a result of Kosovo, less certain of international indifference, then the war may have established a precedent worth fighting for.

"By bypassing the United Nations and disregarding the principle of sovereignty because of Serbia's internal treatment of its own people, I think NATO's actions in the Kosovo conflict do represent a significant paradigm shift," said Garrett of the Monterey Institute. "That doesn't mean we're going to see lots of similar humanitarian interventions, or interventions in Great Powers such as China and Russia. However, the days of absolute sovereignty--when governments could abuse their own people with total impunity--are gone forever."

Copyright 2000 The National Journal, Inc.
All rights reserved. Reprinted with permission.


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