The nato bombing of Yugoslavia in the spring of 1999 has been saluted as a triumph for ‘international justice’ over the traditional claims of state sovereignty. The war was in clear breach of international law: waged without UN Security Council authorization, against an elected, civilian government which had not violated any external treaty, justifiable neither as a threat to peace and security, nor in terms of any NATO country’s self-defence. It has been welcomed instead as a ‘humanitarian’ crusade, explicitly setting individual rights above the territorial rights of nation-states. But if the sovereignty of some states—Yugoslavia, Iraq—is to be limited, that of others—the NATO powers—is to be increased under the new order: they are to be given the right to intervene at will. It is, in other words, not sovereignty itself but sovereign equality—the recognition of the legal parity of nation-states, regardless of their wealth or power—which is being targeted by the new interventionists. Yet such equality has been the constitutive principle of the entire framework of existing international law and of all attempts, fragile as they may be, to establish the rule of ‘right’ over ‘might’ in regulating inter-state affairs. ‘Humanitarian intervention’, Daniele Archibugi has written, in his discussion of ‘Cosmopolitical Democracy’, ‘is too precious a concept to be decided on the hoof or, worse still, invoked to mask special interests or designs on power.’footnote¹ This article will examine the implications of such a right to ‘humanitarian’ military intervention for the future of inter-state regulation and international law.

The concept of sovereign equality is often understood as an integral part of the long-standing doctrine of state sovereignty. In fact, it is of much more recent provenance than the classic state system which emerged at the end of the Thirty Years’ War. The Peace of Westphalia of 1648 famously recognized the secular rights of German princelings above the religious claims of the Papacy, legitimating no external power beyond that of the sovereign; it was this formal recognition of the principle of territorial sovereignty which henceforth became the basis of relations between states. There was, however, no international law in the modern sense: such rights of sovereignty were effectively restricted to the major powers and there was no explicit framework of an international community which could formally limit their exercise. Without international law, the regulation of inter-state relations could not extend beyond voluntary agreements between the sovereign states—strategic alliances, aimed at preserving local interests and maintaining a relatively stable balance of power.

The epoch of this classic, ‘anarchical’ state-system, with no defined limits to the sovereignty of the major powers, was also the era of colonialism. The states included within it were those which could defend their own territory from the claims of other states. It was therefore quite consistent to argue that in countries which could not demonstrate such ‘empirical statehood’—the colonies—sovereignty could not apply. Meanwhile, those with sufficient military force to intervene in other states’ affairs—in other words, the great powers—continued to do so. During the colonial era, the major powers either regulated their territorial acquisitions directly—as in Africa and India—or, as in China, Japan and the Ottoman Empire, insisted that their own actions could not be fettered by local domestic legislation, claiming the right of extraterritoriality. Under the Westphalian system, then, superior force was the guarantor of effective sovereignty.

The Westphalian model came under attack with the modernization and growing world importance of the leading non-European states. Challenges to Western rule and increasing international instability led to new attempts to regulate inter-state affairs. The Hague Conference of 1899 saw the attendance of China, Japan, the Ottoman Empire, Persia and Siam. In 1905 Japan’s defeat of Russia came as a powerful shock to European imperial confidence, closely bound up with assumptions of racial superiority. The second Hague Conference of 1907 was the first gathering of modern states at which Europeans were outnumbered by the representatives of other countries. But it was the watershed of the First World War—bringing in its wake the collapse of the Russian, Austro-Hungarian and Ottoman empires, the rise of colonial resistance, the establishment of the Soviet Union and the threat of new world war—that was decisive in turning Western policy makers away from the strength-based Westphalian system and towards a more juridical concept of sovereignty and a framework of international law.

The principle of national self-determination was proclaimed by Woodrow Wilson at the 1919 Paris Peace Conference—for the newly created states of Central Europe. The extension of such a right to the rest of the world—ringingly affirmed by the Bolsheviks’ Declaration of the Rights of the Toiling and Exploited People in January 1918—was held at bay. The expansion of the concept of territorial sovereignty beyond the principle of ‘might is right’ remained highly controversial within policy-making circles. Robert Lansing, US Secretary of State, recalled his doubts:

The more I think about the President’s declaration as to the right of ‘self-determination’, the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Conference and create trouble in many lands. What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed discontent, disorder and rebellion? Will not the Mohammedans of Syria and Palestine and possibly Morocco and Tripoli rely on it?footnote²

This ‘danger’ was a central concern of the inter-war settlement. The League of Nations timidly initiated legal restriction of great-power sovereignty through the introduction of the mandate system, with colonial administrators now deputed to ‘advance the interests’ of the subject peoples. The mandates—implying a recognition that colonial rule could only be temporary—were the first formal admission that empire was no longer a legitimate political form. But the concept of sovereign equality remained confined to a few, the right of self-determination denied to large sections of the world’s population, Japan’s attempt to include a clause on racial equality in the League of Nations Charter firmly rejected. The development of a universal legal conception of sovereign equality would have to await a further world war.