Mark P. Lagon – Centennial Fellow: Global Justice Blog
Ambassador Mark P. Lagon is a SFS Centennial Fellow and Distinguished Senior Scholar. Lagon most recently served as President of Freedom House, an international nonprofit devoted to research and programs advancing human rights and democratic governance.
The Global Justice Blog addresses ethics, international law, and human rights in today’s fractured world. Centennial Fellow Mark P. Lagon and guest bloggers will grapple will raise key issues and dilemmas among these priorities and strengths of the Walsh School of Foreign Service. A parallel Global Justice Lecture Series will interest readers.
By Raj Salooja, MSFS’08
Raj Salooja is a 2008 MSFS graduate. She previously worked with the World Bank and has written for Foreign Affairs and the Daily Beast.
On September 23, 2014, United Nations Secretary General Ban Ki-moon responded to US-led airstrikes inside Syria by observing: “the strikes took place in areas no longer under the effective control of that government.” His statement acknowledges that the Government of Syria does not have de facto control over its legal boundaries.
But if the Government of Syria does not control specific areas then what to make of its territorial integrity? While the UN Charter provides in Article 2(4) that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” the Charter fails to define what exactly territorial integrity entails.
Further exploration and expansion on how the concept of territorial integrity has evolved as it relates to Syria is necessary if we are to consider how to address the ongoing massacres, crimes against humanity and use of chemical weapons inside the country. Abdelhamid El Ouali notes in his 2012 book (p.3), that the right to existence of the state “has been able to survive over thousands of years as the main form of social organization as a result of its ability to adapt, thanks to what can be called the flexibility of territoriality, to changing historical contexts and situations.”
One line of thought considers whether an outside state’s action against a non-state actor (NSA) inside another state amounts to, legally speaking, war between two states. There can be however, two distinct situations where action against a NSA has different implications. The first is where a group operates inside a country but not in a discernible contiguous region of the country . In this scenario, NSAs do not operate their own separate institutions, collect tax or carry out any functions of a state. They are weaved into the existing state. Population and property remain predominantly tied to a larger state entity. In this context, civilians are still able to access and engage with a legal state entity despite there being a terrorist group that operates out of the country.
The second situation is where a certain territorial area of the country is under the control of an armed group, what can be considered as an “ungoverned” space. In the case of ungoverned spaces, the armed group has without consent, removed the population and property from its ties to institutions or political cooperation and coordination with the state. In this situation, civilians have no recourse or access to a legal state entity. The state that once was, no longer exists in their daily lives.
Article 2(4) of the U.N. Charter prohibits the use of force of one state against another. But this clause has exceptions in cases of self-defense. The United States has argued that in cases where a country is “unable or unwilling” to address the threats that emanate from inside its territory, self defense is legitimate cause for the use of force. The United Nations has accepted this rationale. To allow for the fact that the Syrian Government is “unable or unwilling” to address these threats however, also acknowledges a prior ability or willingness to do so. In other words, the idea of territorial integrity is not absolute. Areas in which US-led airstrikes are taking place can be considered to lack a certain level of integrity as they relate to the Government of Syria. One interpretation is that the Syrian Government forfeits its claim to territorial integrity in the specific areas that the United Nations accepts it has no control.
If we are to consider this in light of the discussion on consent, we must also account for the fact that in these specific areas there is no state entity - let alone one who can deny consent. The principle of intervention is based on its prohibition under international law–in that intervention relies on “the element of coercion.” But coercion requires an legitimate opposing entity. If we allow for the fact that there is no de-facto state in specific regions, is it then intervention inside a state? This question does not remove the need for collective unified international agreement on how to respond when a section of a country is no longer under its direct control. Rather, it invites the obvious: the need for civilians inside these areas to defend themselves against these very same threats.
In other words, if we afford state entities the right to self defense against threats that the Syrian Government is unable or unwilling to address, where in international law can we afford the civilian population inside Syria protection from the exact same threat?