The Law of Cyclones

UPDATE: below

As many as a hundred thousand may have died when Cyclone Nargis hit Burma (Myanmar) on May 2nd-3rd. At least 700,000 were left homeless and perhaps 1.5 million Burmese "are on the brink of a 'massive public health catastrophe,'" lacking water, food, and medicine.

Burma's military cabal got 48 hours notice of the storm's severity and trajectory, from India's meteorological department. The Junta did little to prepare. In the wake of the high winds and flood waters, the regime was worse:

Its soldiers, quick enough to respond to monk-led protests last September, were invisible for days as citizens struggled to cope with devastation, death and injury. And, as a horrified world offered help, the generals were obstructive. Aid workers waited for visas and the junta haggled about import duties on emergency supplies. This is criminal. The first few days after a disaster are, in terms of the lives eventually lost, by far the most important.

Despite a claimed willingness to accept aid, the Generals repeatedly blocked U.S. transports and humanitarian assistance, relenting only Monday--ten days after landfall.

What can be, or should have been, done? Last Wednesday, French foreign minister Bernard Kouchner urged the United Nations to invoke its "responsibility to protect" civilians as the basis for a resolution to force delivery of aid to Myanmar, even if over the objections of Burma's military strongmen. London Times columnist Rosemary Righter agrees, calling the crisis a "test of the UN's moral authority":

So far the world has confined itself to pleading with the junta, and pleading has got nowhere. The driblet of aid allowed is slowly becoming a trickle, but for thousands it is already too late, and for millions more this is nowhere near enough. What little has got in has been impounded or, in the case of trucks of emergency plastic sheeting delivered from neighbouring Thailand by the UN Commission for Refugees, just dumped near a pagoda close to the frontier. This refusal of international humanitarian aid is, the UN laments, “unprecedented”. Unprecedented - or almost unprecedented - decisions are called for.

Governments with the power to help must insist on doing so, with or without the junta's co-operation - with the approval of the UN Security Council if they can, and without it if they must. Governments had the approval neither of Saddam Hussein nor the Security Council in 1991, when they airlifted aid to fleeing Kurds in northern Iraq. The idea that states can do what they please within their borders has been modified since 1945 by a growing acceptance that states have responsibilities as well as rights, and that gross violations of those responsibilities are an international concern. Forcing aid on the regime would be a risky venture; but to cite sovereignty as the reason why nothing can be done without its assent would be to let this foul regime get away with mass murder.

France's plan was opposed by "China, Russia and, with Zimbabwe in mind, by South Africa"--as well as by Britain. Who is right?

Initially, I'm skeptical about principles grounded on the moral authority of the United Nations. Neither the General Assembly, nor the Security Council nor the organization's other organs are especially moral. I doubt they were established to be moral--and aren't pro-UN progressives the principal proponents of the "there is no cross-cultural, only situational, morality" theory? In any case, scorekeeping is simple:

when evaluating a club, look at its members: "In 2003, a majority of UN nations were classed (see page 23) as 'not free' or only 'partly free.'"

So, morality among UN member governments can't be presumed.

Second, though disaster relief is unquestionably moral, that doesn't make forced relief in derogation of sovereignty legal under international law. The "responsibility to protect" doctrine cited by France normally is invoked to shelter populations "from genocide, war crimes, ethnic cleansing and crimes against humanity." General Assembly Resolution, Outcome of 2005 World Summit at 30 (Oct. 24, 2005) . It is true, as Norm Geras notes, that Article 6(c) of the Nuremburg Charter and Article 7 of the Rome Statute of the International Criminal Court also refer to "other inhumane acts." (The US hasn't ratified the Rome Statute, but many nations--albeit, not Burma--have.) So Geras reasons that "It is hard to see why deliberately withholding, obstructing or delaying food and other aid to the victims of natural disaster in such a way that thousands of extra lives are lost in consequence should not qualify, under this wording, as a crime against humanity."

Geras is consistent; no indifferent isolationist or cultural relativitist, Geras was one of the few socialists to favor the Iraq invasion at the time (though he may have shifted since). Still, I suspect most progressives now promoting a UN right to disaster relief recoiled at removing Saddam--or, most relevantly, toppling the Myanmar generals today. Is the difference the motive? The prime mover? Is the legality of extending R2P to humanitarian aid conditioned on who pays, or whether one employs guns, as opposed to butter? Of course, in Iraq and Afghanistan, the Coalition deployed both. . . So what are the neutral principles?

To me, the whole inquiry confuses the moral with the lawful. The Iraq invasion was just--whether or not lawful--and I'm still pleased it was accomplished, in part, "in my name." I'd guess Geras agrees:

irrespective of the state of international law, in extreme enough circumstances there is a moral right of humanitarian intervention. This is why what the Vietnamese did in Cambodia to remove Pol Pot should have been supported at the time, the state of international law notwithstanding, and ditto for the removal of Idi Amin by the Tanzanians. Likewise, with regard to Saddam Hussein's regime in Iraq: It was a case crying out for support for an intervention to bring the regime finally to an end.

But this suggests a third question: is sovereignty more subordinate to multilateral, as opposed to unilateral, intervention? I agree with AVI--no:

This is because nations have to actually eventually do something, and the UN does not. The UN will never do anything but talk, harbor spies, and spend money (see Part III). It is not capable of doing anything but talk, harbor spies, and spend money. It was designed that way, though not intentionally. The three things it is actually dedicated to preserving are the right of western intellectuals to talk like moral authorities, the right of dictators to use international organizations as espionage tools, and the right of rich people in poor nations to demand money. If one nation wishes to do anything, the UN can always counsel inaction, because it pays no cost for inaction. Nations do pay a cost. Nations, real actors in a real world, know that both intervention and nonintervention are unstable, calculated risks.

Besides, the UN can't run a one-car-funeral; even Time magazine wonders whether it could provide quick or effective relief. That being said, "collective action" isn't always wrong: allies are better than enemies. In practice, a bigger consensus may not change the legal or moral calculus--but it sure shaves the number of opponents.

Which raises a question for even the pro-UN crowd. Discovering new international legal, as opposed to moral, justification for forced humanitarian intervention has practical consequences, as Gareth Evans (who argues Burma intervention would be lawful) observes:

If it comes to be thought that R2P, and in particular the sharp military end of the doctrine, is capable of being invoked in anything other than a context of mass atrocity crimes, then such consensus as there is in favour of the new norm will simply evaporate in the global south. And that means that when the next case of genocide or ethnic cleansing comes along we will be back to the same old depressing arguments about the primacy of sovereignty that led us into the horrors of inaction in Rwanda and Srebrenica in the 1990s.

Put differently, not all nations will agree about any particular collective action. Should unanimity, or even a majority, be required when the cause is just? The slow-cooking of UN consensus is small comfort to the sick and starving.

Conclusion: Few acts are more selfless than aiding the needy. Especially given the actions of the Burmese Junta, cyclone relief clearly is morally right regardless of sovereignty. So is regime change.

Attorneys like me bear part of the blame for turning everything into a legal issue. In a given civil regime, the immoral can be either lawful or not, depending on the constitution and legislature. International law is different. Over time, morality and necessity can create new customary norms. As England demonstrated when its Royal Navy ended the slave trade, it works when morally-correct governments deploy force for the benefit of all mankind. In opposing France's plan for superseding the sovereignty exercised by Burma's paranoid dictators, modern Britain seems to have recognized that distinction.

I won't claim it's clearly legal today. But, my point is, we shouldn't have to. Saving lives and cyclone relief shouldn't depend on a committee or await debate by a toothless talking forum.

MORE:

Thursday's New York Times:

The directors of several relief organizations in Myanmar said Wednesday that some of the international aid arriving into the country for the victims of Cyclone Nargis was being stolen, diverted or warehoused by the country’s army.

(via Austin Bay)