Intervening interests: humanitarian and pro-democratic intervention in the Asia-Pacific.

• Author: Lancaster, Robert

Abstract

Whilst the Asia-Pacific has been the arena of two significant military operations since 1999, the academic discussion surrounding humanitarian and pro-democratic intervention has tended to focus on the paradigm cases in Africa and Europe. Focusing particularly on the concept of the Responsibility to Protect ('R2P'), as well as the criteria elaborated by the International Commission on Intervention and State Sovereignty (ICISS), this article seeks to illuminate the debate in the Asia-Pacific regional context. Concentrating on the interventions in East Timor and Solomon Islands, it examines the Howard Government's approach to legal and procedural questions of intervention, with a view to determining the impact on the evolving normative framework for intervention. Specifically, it will highlight the way in which consent has emerged as a fundamental prerequisite to intervention, a requirement that can easily come to undermine effective international responses and foment prevarication as humanitarian disasters unfold. The Rudd Government appears more committed to the emerging R2P doctrine, but the question remains whether the international community is committed to the full practical implications of the R2P--under what circumstances it will, in practice, be willing to respond militarily to a humanitarian crisis without the consent of the State concerned.

Introduction

In September 1999, images were broadcast from Dili of East Timorese children being thrown over the barbed wire fence into the relative safety of the United Nations ('UN') compound. (1) It was a rude awakening for the international community generally and the Australian public in particular--whatever the cause of the conflict, there was an abiding sense of responsibility for its disastrous human consequences. It is this kind of tragedy that inspires the traditional debate over humanitarian intervention--is there such a legal doctrine and, if so, what are its governing principles? It has long been the subject of discussion among philosophical schools, stretching back before Grotius' 1636 seminal contribution. (2) The signing of the Charter of the United Nations ('UN Charter') settled certain questions, but the theoretical and practical debate remains very much alive. Even since Teson traced his liberal interpretation on the use of force for humanitarian intervention in 1988, (3) there has been considerable evolution in the area amid a rapidly developing global environment.

The literature on intervention has tended to focus on Africa and Europe, each of which bears unique characteristics that affect the way in which the intervention debate is framed and the factors that are taken into account in determining whether intervention is appropriate. (4) Taking the interventions in Solomon Islands and East Timor as background, as well as the pervasive and ongoing instability in the region, this article will focus on the Asia-Pacific, with a view to determining the way in which the peculiarities of the region determine approaches and attitudes to intervention.

The first section will lay the foundations of the debate, examining the legal rules governing the use of force and the historical development of a purported right of humanitarian intervention at international law. Some of the principal examples in the Cold War era will be explored, before tracing the significant developments of the 1990s through the crises in Somalia, Haiti, Rwanda and Kosovo, leading to the 2001 Report of the International Commission on Intervention and State Sovereignty ('ICISS').

The second section turns to the Asia-Pacific to identify the unique conditions that influence the debate in the region. The attempts to articulate more clearly the universal norms on humanitarian intervention are examined in order to determine their applicability and relevance in the regional context. With a view to elucidating the particularities of the Asia-Pacific, a more detailed analysis follows of the rationale--legal, moral and political--behind the Australian-led interventions in East Timor and Solomon Islands.

Finally, the third section consolidates the regional state practice and opinio juris, particularly from Australia, in order to gauge the normative direction of the region and the extent to which regional intervention action sits comfortably with the broader international rules regulating the use of force. The section will focus particularly on the primacy that has increasingly been accorded to the requirement of consent, and will ask whether the overall framework that thereby evolves is preferable to the ICISS framework for the use of force. The discussion will conclude with an eye to the future, surveying some of the principle areas of instability, underlining the need for greater determinacy in the norms on intervention, as well as a greater consistency in their application. It is the central thesis of this article that a threshold requirement has developed in the region which requires that intervention only take place with the express consent of the relevant government authority. This consent criterion is not, per se, properly situated within a rigorously developed and consistently adhered to normative framework, has undermined effective responses to humanitarian crises and fostered an undesirable sense of indeterminacy in both the legal and normative discourses.

The article notes that Australia has played a determining role in the regional intervention debate and will, therefore, focus much of its attention on Australian governmental attitudes and responses. In view of this, it is important to note that the change in Federal Government from the Liberal-National Coalition to the Australian Labor Party, in November 2007, has perhaps signalled a new direction in foreign policy. The indications are that the new (Rudd) Government's policy has greater faith in multilateralism generally and the UN specifically, and it has emphatically endorsed the Responsibility to Protect ('R2P'), (5) including A$4.5 million in funding to support the concept. (6) The experience during the prime ministership of John Howard (1996-2007) is nonetheless instructive as to the perils of unilaterally developed and inconsistently implemented foreign policy goals, as well as important in order to evaluate the normative environment inherited by the Rudd Government.

1. The legal principles governing intervention

1. The UN Charter framework for the use of force

   The rules and guiding principles governing the use of force that are enunciated in the UN Charter remain hard law, subject though they are to interpretation and the influence of customary international law. (7) Intervention is clearly characterised within the Charter framework as an exception to the general prohibition on the use of force in article 2(4). (8) The norm is firmly grounded in the Westphalian paradigm that elevates state sovereignty to an almost unimpeachable status, and the prohibition is reinforced by the broader principle of non-intervention, (9) which has developed over time into a norm of jus cogens. (10) This preoccupation of international law with relations between States endured largely unchallenged through to the end of the Cold War era, with only a handful of conflicts casting the notion of intra-State conflict into the international consciousness in the years preceding 1990. The Charter framework for the use of force, thus, bears the indelible marks of a drafting process born of inter-State conflict, and the customary law on use of force in the first four decades after the World War II upheld the principle of non-intervention. (11)

   The Charter does, nonetheless, permit exceptions to the general rule. These are to be found in chapters VII and VIII. The former governs the circumstances under which the UN Security Council, mandated with the 'primary responsibility for international peace and security', (12) may resolve to intervene. The threshold question in this context is the 'existence of any threat to the peace, breach of the peace, or act of aggression' (13) that allows the Council, as a last resort, to 'take such action ... as may be necessary to restore international peace and security'. (14) Chapter VII also authorises the use of force for the purpose of individual or collective self-defence; action that may only continue until the Council has taken measures to restore international peace and security. (15) Chapter VIII then deals with the handling of disputes through the apparatus of regional arrangements or agencies, although without specifically defining either term. (16) However, article 53 underlines the point that no enforcement action, irrespective of which State or grouping of States undertakes the action, may be taken without UN Security Council authorisation. (17)

   Bearing in mind the requirement for unanimity among the five permanent members of the UN Security Council, it is not surprising that there was a general hiatus in the use of force until the end of the Cold War. Those interventions that did occur were either the product of rare periods of detente or simply an illegal derogation from the provisions of the Charter. (18) Some were justified on existing exceptions to the prohibition, most regularly self-defence, (19) but broader, self-interested political objectives were involved in each case--and crystallisation of any norm conferring a right to intervene is hindered by the obfuscation of motivations that drive unilateral intervention. (20) In the specific context of humanitarian concerns, inconsistent international responses to humanitarian crises and the array of factual matrices in crisis situations further muddy the normative waters. (21)

2. The internationalization of human rights

   The Preamble of the Charter declares a determination 'to reaffirm faith in fundamental human rights, in the dignity and worth of the human person'. (22) Moreover, the purposes of the UN include achieving 'international...