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The Arab Spring and the Notion of External State Sovereignty in International Law

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Abstract

The notion of external sovereignty is not one that is free from contestation. Yet, it is defined in this article broadly as a state’s independence and exclusive authority over its territory and those residing upon it. The events of the Arab Spring have challenged this form of sovereignty with human rights and humanitarian law violations being discussed in various quarters. This article discusses the notion of external state sovereignty in light of these events. It dissects the notion into various relevant constituent elements of sovereign equality, protection from intervention, and the protection from the use of force and discusses how they can be discerned in the midst of the conflicts in the Arab Spring, in particular those in Libya and Syria. However, it also assesses how the events of these conflicts have impacted upon these various elements of the notion. In this respect, while it portrays external sovereignty as an enduring concept, aspects of it have been questioned and its contours have been challenged during the course of the Arab Spring. More specifically the emergence of the Responsibility to Protect concept has influenced the way in which various forms of intervention have been undertaken and judged by the international community.

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Notes

  1. Crawford (2012a, b), at 131.

  2. As Schrijver notes, ‘1648 is often popularly denoted as the “birth year” of the sovereign state.’ Schrijver (2000), at 67.

  3. Ibid., at 70.

  4. On the notion of popular sovereignty see, in general, Vinx (2013).

  5. On the emergence of such a right see Franck (1992).

  6. In terms of democracy, the situation in Egypt has in some respects come full circle. The government of Hosni Mubarak was ousted from power through the popular decent of the people in 2011, to be replaced by the nation’s first democratically elected president, Mohammed Morsi, who was subsequently ousted in a military coup. The military is apparently taking steps to ensure it has a large presence in any future elected government through a recent change in the constitution, with its head, General Abdel el-Sisi, potentially running for President in the election under the new constitution. See BBC News, ‘Egypt profile’, 14 January 2013, at http://www.bbc.co.uk/news/world-africa-13313372.

  7. Schrijver (2000), at 71. See, in general, Brand (1994).

  8. Although, as Crawford notes, this concept of sovereignty is of ‘sovereignty as discretionary power within areas delimited by law.’ See Crawford (2012a, b), at 447–448.

  9. James Crawford, for example, has even questioned: ‘With the erosion of state prerogatives in many fields, does sovereignty matter any more?’. Crawford, ‘Sovereignty as a legal value’ (2012a), at 119.

  10. Schrijver (2000), at 75.

  11. See infra Sect. 4.2 for more on this concept and some reflections upon the way in which it has been applied in the Arab Spring.

  12. Lauterpacht (1997), at 141.

  13. Vattel 1758 [2008], Bk. I, Preliminaries, §18.

  14. In particular, it is declared that ‘[i]nternational disputes shall be settled on the basis of the Sovereign equality of States.’

  15. Cassese (2004), at 48.

  16. See Orwell (1945), at 90.

  17. Perhaps most notably in this respect was not only the United Kingdom government’s readiness to forcibly intervene in Syria but also its express reliance on the ‘right’ of humanitarian intervention should it do so. Not all states have the capabilities to intervene let alone the audacity to rely on such a controversial justification under international law for their actions. Yet, if it had intervened upon this justification and received sufficient support in doing so this may have proved a significant shaping of the law governing the use of force. See infra Sect. 4.2.

  18. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1992).

  19. However, the fact that much of this Convention applied through the back door in the form of customary international law perhaps negates any advantage it had gained through exercising its sovereign prerogative in refraining from becoming a party for so long. See Henckaerts and Doswald-Beck (2005), at 259–267.

  20. BBC News, ‘Syria Crisis: UN receives Syria chemical treaty papers’, 12 September 2013, available at http://www.bbc.co.uk/news/world-middle-east-24068867.

  21. While Syria and Russia held the Syrian rebels responsible. See BBC News, ‘Syria crisis: Where key countries stand’, 12 September 2013, available at http://www.bbc.co.uk/news/world-middle-east-23849587.

  22. See BBC News, ‘Syria crisis: US weighs military options’, 24 August 2013, available at http://www.bbc.co.uk/news/world-middle-east-23822440.

  23. Article 18(1), UN Charter (1945).

  24. See Articles 23(1) and 27(3) respectively, ibid.

  25. ‘Syria crisis: US Ambassador Sarah Power accuses Moscow of holding Security Council “hostage”’, The Telegraph, 5 September 2013, available at http://www.telegraph.co.uk/news/worldnews/10290342/Syria-crisis-US-Ambassador-Sarah-Power-accuses-Moscow-of-holding-Security-Council-hostage.html.

  26. See, in general, Higgins (1984), Lowe (1994), Jamnejad and Wood (Jamnejad and Wood 2009).

  27. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) (1968) ICJ Rep. 14, at para. 202.

  28. Article 2(7), UN Charter (1945).

  29. See, for example, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res 2131 (XX), UN GAOR, 20th sess, 1408th plen mtg, Agenda Item 107, UN Doc A/RES/20/2131 (21 December 1965) para 1 (‘Declaration on the Inadmissibility of Intervention’); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, Agenda Item 85, UN Doc A/Res/25/2625 (24 October 1970) annex (‘Declaration on Principles of International Law Concerning Friendly Relations’); Charter of the Organization of American States, signed 30 April 1948, 119 UNTS 3 (entered into force 13 December 1951) art 19 (‘Charter of the Organization of American States’).

  30. See Wright (1956) 50.

  31. Nicaragua case, supra n.27, at para. 205. See also Declaration on the Inadmissibility of Intervention, supra n.29, at paras 1–2, 5; Declaration on Principles of International Law Concerning Friendly Relations, supra n.29, annex para 1 principle 3.

  32. For example, in Tunisia, Yemen and Egypt. See S. Cornwell, ‘Obama proposes $800 million in aid for “Arab Spring”’, Reuters, 13 February 2012, available at http://www.reuters.com/article/2012/02/13/us-usa-budget-foreign-idUSTRE81C1C920120213.

  33. Ibid.

  34. See, for example, B. Daragahi and L. Saigol, ‘China calls for end to Syria violence’, FT.com, 3 March 2012, available at http://www.ft.com/cms/s/0/ce50f1ae-6458-11e1-b30e-00144feabdc0.html#axzz2rzhae5aY.

  35. For a call by the UN General Assembly see UN Doc. A/67/L.63, 8 May 2013.

  36. See in the context of the uprising in Libya UNSC Resolution 1970 (2011).

  37. ‘Arab League approves Syria sanctions’, USAToday.com, 27 November 2011, available at http://usatoday30.usatoday.com/news/world/story/2011-11-27/syria-arab-league/51419726/1.

  38. I. Black, ‘Syria’s suspension from the Arab League leaves Assad isolated’, The Guardian, 14 November 2011, available at http://www.theguardian.com/world/2011/nov/14/syria-suspension-arab-league-assad-isolated.

  39. BBC News, ‘Syria: EU imposes sanctions on President Assad’, 23 May 2011, available at http://www.bbc.co.uk/news/world-middle-east-13500395.

  40. S.L. Myers and A. Shadid, ‘US Imposes Sanctions on Syria Leader and 6 Aides’, New York Times, 18 May 2011, available at http://www.nytimes.com/2011/05/19/world/middleeast/19syria.html?pagewanted=all&_r=0.

  41. Article 41, UN Charter (1945).

  42. Article 53, UN Charter (1945).

  43. Article 2(4), UN Charter (1945).

  44. As the ICJ stated in the Gabčikovo-Nagymaros Project case:

    In order to be justifiable, a countermeasure must meet certain conditions … In the first place it must be taken in response to a previous international wrongful act of another state and must be directed against that state … Secondly, the injured state must have called upon the state committing the wrongful act to discontinue its wrongful conduct or to make reparation for it … In the view of the Court, an important consideration is that the effects of a countermeasure must be commensurate with the injury suffered, taking account of the rights in question … [and] its purpose must be to induce the wrongdoing state to comply with its obligations under international law, and … the measure must therefore be reversible.’

    See [1997] ICJ Reports 7, at 55–57.

  45. Case concerning Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain) [1972] ICJ Reports 3, at 32.

  46. See International Law Commission, Draft Articles on the Responsibility of States for International Wrongful Acts (2001), Article 26 (‘Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law’).

  47. On threats of force, see, for example, Stürchler (2009), Roscini (2007), Tsagourias (2013).

  48. Lowe (2007), at 67 (emphasis added).

  49. Nicaragua case, supra n.27, at para. 205 (emphasis added).

  50. For example, in November 2013 with reports that China had flown its first stealth drone, Japan warned that it would shoot down any aircraft in Japanese airspace. China retorted that any attempt by Japan to shoot down Chinese aircraft would constitute an ‘act of war’. See BBC News, ‘China “flies first stealth drone”—reports’, 22 November 2013, available at http://www.bbc.co.uk/news/world-asia-china-25033155.

  51. Brierly (1963), at 414.

  52. The International Law Commission expressed the view that ‘the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.’ See (1996-II) UNYBILC, 247. Furthermore, the ICJ in the Nicaragua case noted that the prohibition of the use of force ‘is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.’ Nicaragua case, supra n.27, at para.190 (emphasis added).

  53. Nicaragua case, supra n.27, at para.34.

  54. Articles 51 and 39-42 respectively, UN Charter (1945).

  55. Article 51, UN Charter (1945) states that ‘[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’

  56. See BBC News, ‘Syria conflict: Israel “carries out Latakia air strike”’, 1 November 2013, available at http://www.bbc.co.uk/news/world-middle-east-24767571.

  57. See O. Holmes and M. Karouny, ‘Beirut bomb kills anti-Syrian intelligence official’, Reuters, 19 October 2012, available at http://www.reuters.com/article/2012/10/19/us-lebanon-explosion-idUSBRE89I0N620121019. Although once responsibility had been established any forcible action might no longer be necessary and thus constitute an unlawful reprisal.

  58. Schrijver (2000), at 74.

  59. Article 2(7) of the UN Charter (1945) reads:

    Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

  60. See, generally, Henderson (2013).

  61. Ibid., at 130.

  62. Danesh Sarooshi, in particular, has conceived of the practice of the UNSC authorising states to undertake its work as a form of delegation. See, in general, Sarooshi (2000).

  63. See Henderson (2011).

  64. Russia and China have vetoed three resolutions on the Syria crisis. See A. Gabbatt, ‘Russia and China veto of Syria sanctions condemned as “indefensible”’, The Guardian, 19 July 2012, available at http://www.theguardian.com/world/2012/jul/19/russia-china-syria-sanction-veto.

  65. Zifcak (2012), at 73.

  66. This is, in particular, for the development of the Responsibility to Protect concept. See infra Sect. 4.2.

  67. See 10 Downing Street, ‘Chemical weapons use by Syrian regime: UK government legal position’, Gov.UK, 29 August 2013, available at https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version.

  68. Henderson, supra n. 57, at 148–149.

  69. This term is used by Armstrong et al. (2012), at 104.

  70. See ‘House of Commons debate on Syria’, www.parliament.uk, 30 August 2013, available at http://www.parliament.uk/business/news/2013/August/commons-debate-on-syria/.

  71. For example, see Reisman (1990), Aronofsky (2006–2007).

  72. For example, while Article 2(4) requires all member states to ‘refrain’ from the threat or use of force, Article 1(3) talks of ‘promoting and encouraging respect for human rights’ and Article 55 states that the UN ‘shall promote universal respect for, and observance of, human rights’.

  73. Henderson, supra n.57, at 148–149.

  74. For example, the UNSC has taken the decision to authorise states to use force for humanitarian purposes in Somalia and Haiti, amongst others. However, Rwanda and Darfur are two notable examples where such authorisation was not provided.

  75. Decrees on Nationality in Tunis and Morocco case (1923) PCIJ, Series B, No. 4, 27.

  76. Schrijver (2000), at 70.

  77. The concept was first introduced in Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001, available at http://responsibilitytoprotect.org/ICISS%20Report.pdf.

  78. Ibid., at para.2.14.

  79. Ibid., at para. 2.15.

  80. Crawford (2012a, b), at 131.

  81. See, for example, Report of the High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’, 2 December 2004, UN Doc. A/59/565, at para. 203; Report of the UN Secretary-General, ‘In Larger Freedom: Towards Security, Development and Human Rights for All’, 21 March 2005, UN Doc. A/59/205, at para. 125; 2005 World Summit Outcome Document, UNGA Res. A/60/L.1, 15 September 2005, at para. 139.

  82. See Henderson, supra n. 60, at 778.

  83. Supra n.64.

  84. A. Anishchuk, ‘Russia has not yet sent S-300 missiles to Syria: Putin’, Reuters, 4 June 2013, available at http://www.reuters.com/article/2013/06/04/us-syria-russia-crisis-arms-idUSBRE9530EK20130604.

  85. Nicaragua case, supra n.27, at para. 164.

  86. Henderson (2013b), at 643.

  87. Ibid., at 652–653. For example, the support of Iran and Syria to Hezbollah in Lebanon has largely been covert, while support by Rwanda and Uganda to rebel groups in the Democratic Republic of Congo, when acknowledged, was largely justified upon the basis of self-defence.

  88. Corten (2010), at 130.

  89. Henderson, supra n.86, at 678.

  90. See supra n. 64.

  91. H. Siddique and T. McCarthy, ‘UN Secretary General Says US Arming Syria Rebels “Would Not Be Helpful”—As It Happened’, The Guardian, 15 June 2013, available at http://www.guardian.co.uk/world/2013/jun/14/us-to-arm-syrian-rebels-live; ‘Syria Conflict Has Reached New Levels of Brutality—UN’, BBC News, 4 June 2013, available at http://www.bbc.co.uk/news/world-middle-east-22765692.

  92. Luke Harding, ‘Russia Warns UK against Arming Syrian Rebels’, The Guardian, 14 March 2013, available at http://www.guardian.co.uk/uk/2013/mar/13/russia-warns-uk-syrian-rebels.

  93. Henderson, supra n.86, at 681.

  94. Schrijver (2000) at 95.

  95. Ibid., at 65.

  96. See supra n.29.

  97. See BBC News, ‘What is the Geneva II conference on Syria’, 22 January 2014, available at http://www.bbc.co.uk/news/world-middle-east-24628442.

  98. There have been commissions of inquiry on the events in Bahrain, Libya and Syria.

  99. Crawford (2012a, b), at 130.

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Acknowledgments

The author wishes to thank Dr Gary Wilson for his invitation to speak at ‘The Arab Spring: Two Years On’ symposium held at Liverpool John Moores University on 17 September 2013.

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    Christian Henderson

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Henderson, C. The Arab Spring and the Notion of External State Sovereignty in International Law. Liverpool Law Rev 35, 175–192 (2014). https://doi.org/10.1007/s10991-014-9152-5

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