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Treaty-Based Intervention: Who Can Say No? David Wippmant

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Treaty-Based Intervention: Who Can Say No? David Wippmant Treaty-Based Intervention: Who Can Say No? David Wippmant INTRODUCTION Can a state by treaty lawfully authorize forcible external intervention in its internal affairs? Although scholars have debat- ed this question for many years,' it is likely to take on renewed importance in the near future. The end of the Cold War has ac- celerated the post-1945 shift away from interstate aggression and toward intrastate strife as the predominant form of armed con- ffict.2 As a result, the world will likely see an increasing number of fractured states that can survive as states only with the active assistance and-at times-the intervention of outside states and international organizations. We can expect to see more states like Bosnia, whose only hope for survival is the implementation of an intercommunal settlement that is internationally brokered, and perhaps internationally imposed and guaranteed.' Treaties au- thorizing external enforcement of internal settlements have al- t Associate Professor, Cornell Law School. The author wishes to thank Professors Kathryn Abrams, Gregory Alexander, John Barcel6, III, Lea Brilmayer, Lori Damrosch, Cynthia Farina, Sheri Johnson, Paul Kahn, Jonathan Macey, Steven Ratner, Steven Shifflin, John Siliciano, Jane Stromseth, Anne-Marie Slaughter, Fernando Tes6n, Ms. Jill Gaulding, and the participants in Professor Brilmayer's International Jurisprudence Colloquium for helpful comments on an earlier draft of this Article. 1 As Professor Winfield observed in 1924, legal theorists have long "bluntly asserted, and as categorically denied, that intervention is justifiable if based upon treaty-right." P.H. Winfield, The Grounds of Intervention in International Law, 5 Brit YB Intl L 149, 155 (1924). 2 See, for example, Lori Fisler Damrosch, Changing Conceptions of Intervention in InternationalLaw, in Laura W. Reed and Carl Kaysen, eds, Emerging Norms of Justified Intervention 91, 103 (American Academy of Arts & Sciences, 1993) (describing "a new generation of post-Cold War crises"). ' See, for example, Chuck Sudetic, Bosnia Aides Ask U.S. Guaranteeas Peace Talks Are Set to Resume, NY Times A6 (Aug 30, 1993) (describing Bosnian government's re- quests for firm guarantees of political and military support by the United States and NATO); Steven Greenhouse, Peace Outline Has Its Flaws, Bosnians Say, NY Times A4 (May 15, 1994) (same); International Conference on the Former Yugoslavia, Statement of Principles, Art XIII (1992), reprinted in 31 Intl Legal Mat 1533, 1534 (1992) (recognizing "the need to provide international guarantees to ensure the full implementation of all agreements reached within the framework of the International Conference). 608 The University of Chicago Law Review [62:607 ready been negotiated or proposed in Liberia,4 Cyprus,5 Bosnia,6 Cambodia,7 Georgia,' Somalia,9 and the Middle East.1° In addition, treaties affording outside states or international organizations rights of intervention may play an increasingly important role in at least three other contexts. First, the growing international consensus that democracy is an essential criterion of governmental legitimacy" may soon lead to serious consider- ation of Professer Tom Farer's suggestion that a group of demo- cratic states might lawfully enter into an agreement to permit intervention by the group in any member state if needed to re- store democratic government following a coup.' Second, See Cotonou Agreement (July 25, 1993), IGNU-NPFL-ULIMO, Art 8, § 3, attached to United Nations, Security Council, Letter Dated 6 August 1993 from the Charg6 d'Affaires A.I. of the Permanent Mission of Benin to the United Nations Addressed to the Secretary-General 7, UN Doc S/26272 (1993) (authorizing ECOMOG, a West African peacekeeping force, to "resort to the use of its peace-enforcement powers" against violators of the agreement). ' See text accompanying notes 103-15. 6 See note 3. See Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (Oct 30, 1991), Art 6, attached to United Nations, General Assembly and Security Council, Letter dated 30 October 1991 from the Permanent Representatives of France and Indone- sia to the United Nations addressed to the Secretary-General 10, UN Doc A/46/608, S/23177 (1991), reprinted in 31 Intl Legal Mat 180 (1992). ' See, for example, United Nations, Security Council, Georgia's Head of State Out- lines Conditions for Solution to Abkhazia Situation, in Statement to Security Council, UN Doc SC/5803 (1994) (proposing joint administration of Abkhazia under an international directorate). ' See United Nations, Department of Public Information, The United Nations and the Situation in Somalia (1994) (on file with U Chi L Rev) (describing agreements reached among warring Somali factions that call for external enforcement). '1 See, for example, Jerome Slater, A Palestinian State and Israeli Security, in Demetrios Caraley and Cerentha Harris, eds, New World Politics: Power, Ethnicity & Democracy 149, 150-51, 160 (Academy of Political Science, 1993) (calling for an interna- tional peacekeeping force with "war-fighting capabilities" to guarantee an overall Israeli- Palestinian settlement). " Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am J Intl L 46, 46 (1992). See also Domingo E. Acevedo, The Haitian Crisis and the OAS Response: A Test of Effectiveness in Protecting Democracy, in Lori Fisler Damrosch, ed, Enforcing Restraint: Collective Intervention in Internal Conflicts 119, 141-42 (Council on Foreign Relations, 1993); Morton H. Halperin, David J. Scheffer, and Patricia L. Small, Self- Determination in the New World Order 56-60 (Carnegie Endowment for International Peace, 1992). ' See Tom J. Farer, A Paradigmof Legitimate Intervention, in Lori Fisler Damrosch, ed, Enforcing Restraint: Collective Intervention in Internal Conflicts 316, 332 (Council on Foreign Relations, 1993). See also Tom J. Farer, The United States as Guarantor of Democracy in the CaribbeanBasin: Is There a Legal Way?, 10 Hum Rts Q 157, 161 (1988). For a similar proposal, see Morton H. Halperin, Guaranteeing Democracy, 91 Foreign Policy 105 (1993) (urging adoption of an "international guarantee" clause permitting forcible intervention to protect democracy upon "consensus of a group of guaranteeing powers designated in an agreement with a particular country"). 19951 Treaty-Based Intervention strengthening pressure for acceptance of a limited right of hu- manitarian intervention 3 may induce at least some states to pursue Professor Stanley Hoffman's proposal for establishment of a multilateral treaty regime under which signatory states would agree to intervention in their internal affairs if necessary to end gross human rights abuses.'4 Third, the increasing interdepen- dence of states 5 suggests that treaties authorizing one state to protect certain defined interests within another state may soon achieve renewed prominence. Such treaties might provide for the protection of nationals living abroad, 6 or the protection of other vital state interests, such as trade routes, 7 military bases, 8 or See David J. Scheffer, Toward a Modern Doctrine of HumanitarianIntervention, 23 U Toledo L Rev 253, 259 (1992) (describing a "new standard of intolerance for human misery and human atrocities"). 14 See Stanley Hoffman, Delusions of World Order, NY Rev Books 37, 41 (Apr 9, 1992). See Joseph A. Camilleri, Rethinking Sovereignty in a Shrinking, Fragmented World, in R.B.J. Walker and Saul H. Mendlovitz, eds, Contending Sovereignties: Redefin- ing Political Community 13, 25-27 (Lynne Rienner, 1990) (describing sovereignty in an "increasingly unified world"). 16 Russia, for example, claims a right to protect the approximately twenty-five million ethnic Russians living in other states of the former Soviet Union. See, for example, Russians Abroad, Economist 58 (May 21, 1994). Proposals for providing this protection include recolonization, Russian guarantees for autonomous regions within neighboring states, and treaty arrangements establishing a "single humanitarian area" within the former Soviet Union. Id at 61; Yeltsin Approves Programme on Strengthening Russian State, BBC Summary of World Broadcasts (May 3, 1994) (summary of original radio broadcast). 17 Negotiations over a political settlement of the conflict in Bosnia, for example, initially foundered in part on insistence by the government of Bosnia that it receive control over a corridor giving it access to the Adriatic Sea. Paul Lewis, Mediators Cancel Meeting of Bosnian Foes After Government Balks, NY Times A10 (Dec 10, 1993). See also Moscow Scuttles FurtherNATO Ultimatums, Ottawa Citizen A6 (Feb 23, 1994). Serbian forces offered a settlement that would have denied such access, but the Bosnian govern- ment wanted sovereignty over a viable land corridor. See Daniel Williams and Ann Devroy, Clinton Seeks 'Bottom Line' From Bosnian Muslims, Wash Post A22 (Feb 10, 1994). The Bosnian government and the government of Croatia subsequently pledged to conclude agreements granting Bosnia "unrestricted access to the Adriatic" through Croatia and granting Croatia "unrestricted transit through Neum." See Preliminary Agreement Concerning the Establishment of a Confederation between the Federation of Bosnia and Herzegovina and the Republic of Croatia (Mar 18, 1994), Bosnia and Herzegovina-Croatia, Art 6, 33 Intl Legal Mat 611, 613 (1994). ' Russia has induced a number of states from the former Soviet Union to enter into agreements authorizing Russian military bases on their territory. See, for
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