The UN Declaration has been qualified by subsequent developments in international law

Dear Editor,

I write further to a letter by Mr Justice Duke Pollard, former Justice of Appeal of the Caribbean Court of Appeal, published in your newspaper (‘Hardt’s spat should be examined by reference to Vienna Convention on diplomatic relations,’ July 7). In the letter, Justice Pollard commends the controversial address of the Minister of Foreign Affairs (ag) Priya Manickchand, on the occasion of US Independence Day, in which she reproved the departing US Ambassador for what she perceived as unwarranted and intrusive meddling in the internal affairs of an independent sovereign state.

Justice Pollard has commended the Minister’s position, and has cited the United Nations’ Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, in support of this argument. This principle of international law is founded on the right of small states to determine their internal affairs free from interference from other (usually larger) ones. It is undoubtedly a valid and commendable principle of international law. However, what appears to have been overlooked is that since its pronouncement, international law has undergone fundamental changes in the ways that states relate to each other, especially in the area of human rights. The United Nations itself has as recently as 2011 formulated and pronounced the doctrine of Responsibility to Protect.

This doctrine – or R2P as it is conjecturally known – emerged from the tragedies in Rwanda and the Balkans in the 1990s. As one source reports, the international community began to seriously debate how to react effectively when citizens’ human rights are grossly and systematically violated.   The question at the heart of the matter was whether states have unconditional sovereignty over their affairs or whether the international community has the right to intervene in a country for humanitarian purposes. In his Millennium Report of 2000, then Secretary-General Kofi Annan, recalling the failures of the Security Council to act in a decisive manner in Rwanda and the former Yugoslavia, put forward a challenge to member states:

“If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violation of human rights that offend every precept of our common humanity?”

The doctrine that developed holds that where a state is infringing on the human rights of its citizens, other states not only have a right, but an actual duty to intervene to protect the rights of the oppressed. This was vigorously embraced by the United Nations in justifying the decision to invade Libya to topple the regime of Colonel Gaddafi in 2011.

Some persons may argue that the constitutionally guaranteed right to free and fair elections is one of the most fundamental human rights. If that is correct, then it may be difficult to support Justice Pollard’s position that the UN Declaration is still fully applicable and has not been at least qualified by subsequent developments in international law.

 

Yours faithfully,
B T I Pollard, SC

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