Sovereignty Abandoned: An Assault on the Westphalia Doctrine

Introduction

When the horrors of Cyclone Nargis were less than a month old, the ideas proposed by French Foreign Minister Bernard Kouchner stirred the international community. As World relief effort bottlenecked off at the Irrawaddy Delta, the World community eagerly awaited the United Nation’s decision on Kouchner’s suggestion to send offensive humanitarian aid into Burma. Kouchner suggested using peace keepers to force Burma (also called Myanmar) to allow humanitarian aid workers to enter the country, effectively adding natural disasters to the list of occurrences when the United Nations may use its responsibility to protect (R2P) to send offensive humanitarian aid into a nation. The cause of the problem is that the Burmese junta leaders are only allowing limited numbers of aid-workers into the country, severely limiting the amount of aid work which could be done. Other nations, such as the United States, Australia, and Thailand, negotiated with the Burmese junta to grant visas. Such visas would allow organizations, such as the Red Cross, to send in more humanitarian workers. The suggestion of Bernard Kouchner is a dangerous one, creating another exception to the sovereignty of nations and upsetting the delicate balance of domestic/international power. While this suggestion would be marginally useful in the presented situation, on the caveat that Burma does not respond to the incursion, there is the distinct danger that the precedent set would destabilize the East-Asia area and have repercussions world wide. The key fear presented in this article is that the drought situation in North Korea could be construed as a natural disaster under the proposed precedent and that the United Nations could use its R2P to invade North Korea.

Part I: Burma and the French Proposal

A. Analysis of Burma

The nation of Burma came into being in 1948 when it separated from the British Commonwealth after years of being a province of British India.¹ Burma’s history has been one of oppressive government controls since 1968, when a military junta took control.² From 1968 until 1988, General Ne Win dominated the political landscape of Burma, first as a self-appointed president and later as the national chief political figure.³  “Chairman” Ne Win, as he liked to be called, fancied himself as the Burmese equivalent to Chairman Mao and used similar psudo-communist policies to collapse Burma under a “bamboo curtain.”⁴ Following his political manifesto, Burmese Way to Socialism, Ne Win expelled all foreigners and progressively destroyed the country’s economy, taking it to one of the 10 poorest countries in the world by the time he resigned.⁵ Leaving his nation with nothing but poverty and a thinly veiled threat to the democratic movement, Ne Win left his position of power in Burma in 1988. Ne Win’s abdication appeared to be a light at the end of a long tunnel which signaled the beginnings of democracy in Burma.⁶ However, this was not to be. When the National League for Democracy’s (NLD) candidate won the first democratic election in Burma, the junta refused to hand over the reigns of power to Aung San Suu Kyi, leader of the NLD and Nobelauriate.⁷ The junta imprisoned Aung San Suu Kyi under house arrest and disallowed any management of the government from the newly elected party.⁸ Maintaining a policy of self-destructive isolationism, the junta restricted media access and was only recently removed from the list of nations with restricted internet information.⁹ This history has created a broken nation which is in need of help; however, the French plan for humanitarian invasion is not the way.

The military junta of Burma presents an interesting look at a political throwback to the days of the cold war. The “bamboo curtain” of isolationism is one of the key factors empowering French Foreign Minister Bernard Kouchner to call for the United Nations to use it R2P to send aid into Burma without the consent of the government.¹⁰ While the cyclone disaster is one of the most horrific in recent memory, Burma has been under the spotlight of international focus for several years for humanitarian violations.¹¹ Recently, in 2000, the International Labor Organization (ILO) used its enforcement mechanism, to little effect, against the child labor atrocities in Burma.¹² Even worse, international media has accused Burma of using children as soldiers in violation of the United Nations Convention on the Rights of The Child.¹³ While the humanitarian violations of the past have been extreme in nature, the World community has not implemented the United Nations’ R2P due to its inherent violations of the concept of national sovereignty; a precedent the nations of the World should follow here, as humanitarian invasion is not proper recourse to natural disaster.¹⁴

The economic system in Burma also seems drawn from a world of the cold war era. The military junta appropriates the majority of the nation’s wealth to maintain power, draining the country’s economic coffers. With a GDP per capita of $1,900, Burma is ranked 18^1st out of 229 nations.¹⁵ With the fact that most of the economic weight is situated at the upper classes of the military junta, the common people of Burma are among the worst off world wide.¹⁶ This fact is compounded by the junta’s heavy handed promotion of forced labor and weakening of property rights standards which have stood throughout the modern industrialized era.¹⁷ The junta appoints judges from the privileged few, and these judges then make decisions which are in-line with the ruling party’s private agendas.¹⁸ On several occasions, the junta has appointed forced labor to complete private industry, effectively reducing the poor workers to slaves.¹⁹ When workers found no recourse in their national courts, the workers then turned to other nations for help.²⁰ These pleas fell upon deaf ears.²¹ Even economic sanctions, the international community implemented for the abovementioned human rights abuses, had little effect to better the standing of the unpaid workers.²² Be that as it may, some limited progress has been made to access to information, which may in turn bear the seeds of Burma’s freedom. Just last year, the government relaxed restrictions on access to the internet by the people, allowing the people to receive economic data from other places in the world.²³ However, in a nation where even with a weighted average income of $1,900 US a year, few people can afford the luxury of computers.²⁴

While the economic and political systems are throwbacks to the Cold War era, the population of Burma is demographically sub-par for the region. With an at birth life expectancy of just over 60 years, Burma is 171^st in the CIA ratings for life expectancy.²⁵ Under normal circumstances the people of Burma are already high at risk with several virulent deadly diseases infecting the region.²⁶ The junta’s continued policy of isolationism has increased the risk of water-born illnesses exponentially. The lack of response by the government to the deadly risk affecting the population has caused China to condemn the actions of the Burmese government.²⁷ With the government so hesitant to deal with problems which occur in relatively normal years, the French Foreign Minister has plenty of ammunition to call for an unprecedented humanitarian invasion of Burma after Cyclone Nargis.

B. The Effects of the Cyclone

Cyclone Nargis made landfall in Burma on May 2, 2008. As the deadly storm hit Burma’s Irrawaddy Delta, The Australian newspaper reported that 60,000 lives were swept away.²⁸ The United Nations estimates that the death toll is now over 100,000.²⁹ Regional news agencies are claiming that the cyclone is having a bigger effect than the tsunami that struck Thailand in 2004.³⁰ As a metrological event, Cyclone Nargis was not expected to do this much damage.³¹ Rated as a category 4 storm, Cyclone Nargis had sustained winds at 135 mph (215 km/h).³² After striking Burma the storm gradually broke up while passing over land.³³ However, the damage had already been done.

The displacement of people caused by Cyclone Nargis is what can only be described as horrific. Due to the military junta’s restrictions on humanitarian aid, the people of Burma are unable to get the basic necessities required for human life.³⁴ The Red Cross reports that without clean water the ranks of the dead will quickly begin to swell and pleads with the ruling junta to allow aid workers into the hardest hit regions.³⁵ The junta defends itself claiming that the limited number of visas already given to aid workers is sufficient.³⁶ This is made doubly dangerous as the junta is limiting the amount of assistance it allows domestic response teams to give, by restricting movement within the nation due to the upcoming election.³⁷ This restriction on external and internal aid is causing the world community to take notice, even going so far as to allow the French Foreign Minister to suggest offensive human aid sent into Burma.

C. France’s Proposal

In response to the desperate situation, Kouchner has called for the United Nations to act upon its “duty to protect” and send aid into Burma with or without the junta’s approval.³⁸ The junta has responded that its interior military is sufficient to deal with the needs of the affected people; it furthers this image by printing pictures in the national newspaper of members of the military handing out aid resources to those in need.³⁹ However; the French ambassador says that this token assistance is not enough and insists that the United Nations send offensive humanitarian aid into the cyclone torn regions of Burma.⁴⁰ As the debate moves to the United Nations’ floor, supplies are already stockpiling in nearby countries such as Thailand, where aid workers pray desperately that the junta will allow them into Burma to aid the victims of Cyclone Nargis.⁴¹ The Burmese government’s insistence that they hand out the goods is bottlenecking the supplies that the world is sending, depriving hundreds of thousands of much needed aid.⁴² Coupled with the supplies that are being stored on land, France and the United States are sending ships laden with goods to the aid of the Burmese which the junta is forcing to sit in the waters off the Irrawaddy Delta.⁴³

With Burma’s refusal of international aid, Frances proposal seems like the best shot the people in the cyclone torn region have at surviving until the end of the month. However, a policy of vacating the precedent set in the Westphalia treaty signed nearly 400 years ago casts shadows of the unforeseen consequences which may arise from international organizations violating the sovereignty of independent nations.⁴⁴ The most important question at the international level is whether a natural disaster is sufficient to violate the national sovereignty of a nation and whether the United Nations should add natural disasters to the list of events where the world community can violate a nation’s borders.

Part II: International Precedent

As the key concept is whether a natural disaster is sufficient to vacate the national sovereignty of a nation, the issues of when an Intergovernmental Organization (IGO) may legally violate a nation’s sovereignty must be discussed. Further, there is the issue of what offensive humanitarian aid does once employed. Finally, the principles destroyed and the precedent set when an IGO superceded the sovereignty of an independent nation must be considered. These principles of sovereignty affect the whole of mankind, not just those who were directly affected by this travesty of governmental management. Only then can the World community make a decision on how best to help the people of Burma affected by Cyclone Nargis.

A. Principles of Sovereignty

The principles of sovereignty, as related to the issue of offensive humanitarian aid, are best summed up by the late Judge Ross:

“[Nations are] equally bound to commit no act of hostility against a nation with which the government is in amity and friendship. This principle is universally acknowledged by the laws of nations. It lies at the foundation of all governments, as there could be no social order or peaceful relations between the citizens of different countries without it.”⁴⁵

Whilst this Judge Ross made this statement in 1892, the principles it envisions are still valid in the discussion of international law; if the laws of nations are ignored then justice between nations cannot exist. That being said, there are specific topics which the World community has deemed to be acceptable reasons for breach of national sovereignty; however, these reasons are internationally agreed by treaty and thus they are international law. The accepted reason for breaching a nation’s national sovereignty are genocide, war crimes, ethnic cleansing and crimes against humanity.⁴⁶ These and these alone are the recognized reasons which allow the International Community to violate the sovereignty of a nations boarders. Further, scholars have posited elements which are needed to establish a new reason to breach sovereignty. One such article is Rodgers’ Humanitarian Intervention and International Law, where he summarizes 10 points needed before the world community should interfere with a nations internal affairs.⁴⁷ These factors are:

“(1) There must be the existence, or imminence, of a serious humanitarian situation–variously described as an overwhelming humanitarian catastrophe/gross and egregious human rights violations/an exceptional and most serious situation of emergency.

(2) The territorial state must fail to deal with the situation.

(3) The Security Council must fail to deal with the situation.

(4) Use of force is the last resort/ the only practicable solution and peaceful solutions have been exhausted.

(5) Action must be collective.

(6) The purpose of the action must be limited to dealing with the humanitarian situation and those intervening must be disinterested.

(7) There must be a realistic prospect of achieving the desired result.

(8) The action must be reported to the Security Council.

(9) The action must be proportionate; it must not cause more harm than the harm to be alleviated.

(10) Any use of force must comply with international humanitarian law.”⁴⁸

Rodgers’ factors, along with the United Nations Charter, provide a valuable starting point for an analysis of whether the Burma situation warrants international offensive intervention.⁴⁹

Importantly, the Burma disaster does not fulfill the requirements alluded to in the United Nations Charter for unwanted international intervention. First, the Cyclone Nargis situation does not give rise to genocide as the government’s failure to act is not a positive cause of the deaths of Burmese citizens. Further, in order to qualify for the genocide exception sovereignty there must be proof of several attacks against the populous, which cannot be established in relation to the Burmese cyclone.⁵⁰ Therefore, Burma does not fall under the genocide exception to national sovereignty.⁵¹ Next, there is no evidence of war crimes in aftermath of Cyclone Nargis, eliminating that exception.⁵² Third, there is no evidence of ethnic cleansing in Burma during the current crisis as the majority of the population in the affected areas are Burmese. The only one of the original exceptions which gives rise to even the debate of justified offensive humanitarian invasion is that of crimes against humanity. However, even the broad ambit of crimes against humanity does not expand far enough to cover poor management of humanitarian aid. The International Criminal Court (ICC) specifically states:

“However, what all of these definitions have in common is: (1) they refer to specific acts of violence against persons irrespective of whether the person is a national or nonnational and irrespective of whether these acts are committed in time of war or time of peace, and (2) these acts must be the product of persecution against an identifiable group of persons irrespective of the make-up of that group or the purpose of the persecution.”⁵³

While the lack of action of the Burmese government is a travesty, it does not meet the requirements set out by the ICC to be a crime against humanity. The cyclone disaster does not meet any of the requirements to activate the United Nations R2P under the traditional model; therefore, to justify the incursion onto Burmese soil, the United Nations would need to look at academic commentary to see if any progressive modern theories would validate a humanitarian invasion.

The model proposed by Rodgers provides a ten point model for analysis, which can be applied to the Burma situation.⁵⁴ However, even under a progressive model such as Rodgers’ model, the crisis in Burma does not give rise to a justification for breaching national sovereignty.⁵⁵ The first element of the Rodgers test requires, “There must be the existence, or imminence, of a serious humanitarian situation–variously described as an overwhelming humanitarian catastrophe/gross and egregious human rights violations/an exceptional and most serious situation of emergency.”⁵⁶ The Burma situation definitely meets the requirements of this element of humanitarian invasion. With United Nations estimates at over 100,000 dead⁵⁷, the Cyclone Nargis disaster is almost a definitional model for “a serious humanitarian situation.”⁵⁸ The second element, “The territorial state must fail to deal with the situation,” is a much more heady matter when analyzed.⁵⁹ As stated above, Burma officials claim to be dealing with the situation appropriately and with the limited observation privileges granted to United Nations personnel it is difficult to prove that they are not doing what they can; despite press reports smuggled out of Burma showing the magnitude of the situation.⁶⁰ The facet that the territorial government is not dealing with the problem is a difficult one to prove. Thus, even on a progressive liberal test it is difficult for the United Nations to justify action. The third element, “The Security Council must fail to deal with the situation,” is met because China, one of the United Nations Security Council members wielding the veto power, has stated that this is not an issue for the Security Council.⁶¹  China has stated that this is a humanitarian issue and should be dealt with by the General Assembly.⁶² Element four, “Use of force is the last resort/ the only practicable solution and peaceful solutions have been exhausted” may require the greatest discussion as it is highly debatable whether the world community has exhausted all peaceful means.⁶³ The United States and Thailand are still negotiating with Burma about the admission of humanitarian aid workers and until those negotiations have failed, all reasonable means have not been completed.⁶⁴ The fifth element, “Action must be collective,” is easily met with the World effort, which is gathering around Burma with supplies waiting for the junta to give aid organizations the green light to enter.⁶⁵ Element number six, “The purpose of the action must be limited to dealing with the humanitarian situation and those intervening must be disinterested,” is another element which may justify implementation of R2P.⁶⁶ With the difficulty humanitarian aid workers are having getting into Burma, the views of the humanitarian workers about the military junta are definitively dark; therein lies the danger of the workers encouraging votes toward democracy in the upcoming elections.⁶⁷ This mixture of humanitarian aid and politics would violate the sixth element of Rodgers Model.⁶⁸ The seventh element, “must be a realistic prospect of achieving the desired result,” is met in the prospect a world effort could ease the pains of the survivors.⁶⁹ Element eight, “The actions must be reported to the security council,” is also easily completed by aid workers.⁷⁰ Element 9, “The action must be proportionate; it must not cause more harm than the harm to be alleviated” also poses a problem.⁷¹ If offensive humanitarian aid is sent into Burma, the Burmese government may see it as an act of war and respond in kind.⁷² Such a scenario is counter productive to the relief effort and would negate any positive effect it would have.⁷³ The final element, “Any use of force must comply with international humanitarian law,” is redundant of the question of analysis, is offensive humanitarian aid for natural disaster victims internationally legal?⁷⁴ Even if the liberal model proposed by Rodgers is accepted, the United Nations still would not be warranted in sending unwanted aid into Burma as it does not meet even the elements of the Rodgers Model. The United Nations Charters and tests presented in academic commentary, therefore, show that the United Nations should not use its R2P in the current situation.

B. What Aggressive Humanitarian Aid Does

The next issue which manifests itself is: what does aggressive humanitarian aid accomplish? Does it help the people it seeks to assist? These two questions are of paramount importance to the analysis of whether the United Nations should use its R2P to aid the people of Burma. If the aid does not help the people it is designed to assist, then the premise of the international aid there used is counterproductive. If there is no accomplishable goal that is worth the prospect of causing a war, in which the people who the effort are attempting to aid may be conscripted into a force fighting against it, then the United Nations needs to maintain a policy of negotiation for the admission of aid workers into Burma.

Firstly, what does offensive humanitarian aid accomplish? When analyzing this question the important issue is what the goal of the aid is. Looking at the effects of Cyclone Nargis, there is an incredibly large area which was destroyed during the disaster. In the case of the Burma disaster, the goal is to aid the people affected by the cyclone.⁷⁵

Secondly, will offensive humanitarian aid help the people in the cyclone ravaged areas of Burma? In an ideal situation, yes it would.  In an ideal situation the junta’s posturing would just be a front and they would back down and accept aid workers. However, realistically looking at the facts presented in this matter, the junta may respond with its military forces to keep United Nations aid workers out.⁷⁶ The effect of military action on the side of Burma will cause the United Nations to respond with Peacekeepers effectively escalating the situation to a conflict.⁷⁷ That presents the question that if a conflict breaks out are the people who the aid is meant for really going to be helped by the situation? The facts show it likely won’t. The worst part of the scenario is that if R2P is evoked it will set an undesirable precedent in international law.

C. Manifest Principles and Precedent

Currently as noted above, there are a limited set of circumstances which allow NGOs, such as the United Nations, to use military force to provide aid to nations where the government is acting contrary to the world community. As it stands now, a natural disaster where the government does not allow humanitarian workers into the country is not one of them. If there were to be a paradigm shift and the world community invaded Burma with an army of peacekeepers and aid workers, what precedent would that set for future humanitarian invasions? Whereas one nation can make a unilateral action and the action can be a mistake, repaired with reparations and aid, when an IGO, especially the United Nations, acts the actions become precedent and if repeated become customary international law. This is an important factor which forces IGOs to make decisions carefully before acting and shows why the veto power of the permanent members of the Security Council is so important.

To look at the precedent that would be set if a hostile aid force were sent into Burma, we must first look at what specific circumstances separates the Burma situation from the enumerated situations when R2P applies. Genocide, ethnic cleansing, and crimes against humanity all require an overt action on the part of the offending government to allow the world community to spring into action.⁷⁸ War crimes have the unique requirement that there is a war, which also is not occurring in Burma.⁷⁹ The Burmese situation would call for a new classification, such as extreme government apathy after a natural disaster, which would have requirements of: (1) A natural disaster;⁸⁰ (2) the home government’s knowledge of the emergency;⁸¹ (3) governmental refusal to take reasonable means to aid the victims;⁸² and (4) the home government’s refusal to allow aid workers into the country.⁸³ Even with this custom tailored definition, the Burma disaster only fits within the definition under the loosest interpretation. Firstly, the government is allowing in a small contingent aid workers⁸⁴, and secondly, the junta states that it is supplying the aid to the victims.⁸⁵ Either of these claims is sufficient to debunk any claim that that humanitarian invasion is necessary.  If the United Nations sets a precedent of a new exception to the historical rule of national sovereignty, what dangers would this new precedent set in the modern world?

Part III: Offensive Aid to Korea

The most obvious problem with the new exception would be the issues occurring in North Korea and the fact that the United States and North Korea are still technically still at war. Though there is a cease fire, which has been in effect for the last thirty years, the enmity between the two nations has not been higher since the actual war. This section of this article looks at the similarities between Burma and North Korea. Further it looks at how the precedent set by a humanitarian invasion can cause a peaceful escalation to war that is fully supported Jus en Bello.

A. Similarity of North Korea and Burma

The important factor to examine in Kouchner’s proposal to send offensive humanitarian aid into Burma and invoke the United Nation’s R2P is not the effect on the current Burma situation, but the effect which invoking the R2P outside the traditional forum will cause. The precise effect of offensive humanitarian aid into Burma cannot be predicted but the ripple effect of the policy has apparent effects which require the United Nations to think carefully before changing the policies where R2P can be invoked.  The greatest fear of an expanded R2P policy is the effect it will have on the concept of national sovereignty, most importantly the allowing of nations and NGOs to enter into countries without their permission when there is no genocide, war crimes, crimes against humanity, or ethnic cleansing. As this article is being written, the area of the World most similar to Burma in many aspects is the nation of North Korea. North Korea is similar to Burma in government structure, economy, in that it is considered a rouge nation, and that the people are insulated from outside media. North Korea has also been called into question for human rights violations, the very reason which the humanitarian invasion of Burma seems so appealing. To conclude, this paper looks at the possible effects which a humanitarian invasion into Burma could have in regards to international relations with North Korea, specifically the issue of whether R2P could reignite the Korean War, which still to this date has not technically ended. Firstly this final portion of this article will look at the similarities between the nations of North Korea and Burma. Secondly, there will be an analysis of whether the current situation in North Korea could be considered a humanitarian crisis, and if not then what occurrences would have to transpire for the World community to consider North Korea in humanitarian crisis. Next, there will be a brief analysis of what effects a call for R2P could have on the relations with North Korea.  This will take place in the positing of two scenarios, one in which the United Nations invokes the R2P and one where a coalition of ‘willing’ nations claims to come to the aid of North Korea should the United Nations fail to do so. Finally this section of the paper will examine the inevitable escalation of conflict should the R2P be invoked in North Korea, focusing on the re-escalation of the dispute between the United States and North Korea, which, in effect, is a long lost echo from the Cold War era. While using R2P in Burma seems to be an excellent idea, the effects which could occur from the usage of R2P could be abysmal and offset any gain achieved in the humanitarian invasion of Burma.

The first issue in the establishing of a framework for analysis is the similarities between Burma and North Korea. Burma and North Korea are similar on at least 3 levels. The levels covered by this analysis are government, economics, and human rights violations. Firstly, the leadership of both countries functions as military dictatorships, with Kim Jong Il owning the place as North Koreas head strongman.⁸⁶ Both countries are the targets of anti-terrorism sanctions due to repressive policies and pro-terrorist sentiment in leadership.⁸⁷ Further, both Korea and Burma headline lists of nations with oppressive restrictions on the internet access of their citizens.⁸⁸ As both North Korea and Burma are East-Asian which are controlled by military governments, they both tend to have less than cordial relations with World powers in the European Union and North American. Further, both nations have anti-western democracy policies. Secondly, in regards to Economics, Burma and North Korea are also very much alike.  Both North Korea and Burma have GNP’s under $100 billion US, which is low for Asian Nations with over 20 million people.⁸⁹ Both Nations export under $10 Billion annually.⁹⁰ Both nations have derelict economies surviving off of pre-1990’s infrastructures.⁹¹ Poorly managed government-controlled economic systems have led to financial collapse in both countries.⁹² And as the new millennium begins both nations are socio-economic dinosaurs needing to join the modern era, but held back through the cold war mentality of not dealing with the West and the suppression of their people through economic manipulation. As economically crippled nations, slashed with sanctions, fiscally the nations of Burma and North Korea are very similar.⁹³ Finally, the nations are similar in their human rights abuses. A simple online search illuminates the problem as when the terms “Burma” and “North Korea” are entered in a joined search hundreds of articles comparing human rights abuses appear.⁹⁴ While North Korea has consistently been in the lime light due to the nuclear development conflict, Burma has conducted its human rights abuses more quietly. However, the human rights abuses committed by both countries are remarkably similar. Academic and government estimates have stated that as much as 1% of North Korea’s population may be contained in political penal colonies.⁹⁵ Political assimilation has been raised to the level of a religion in North Korea, with people dieing to protect portraits of Kim Jong Ill because if they loose them their families may also loose their lives.⁹⁶ While people are dieing to protect artwork that is forced upon them, the North Korean people are also dieing from poor government management of the agricultural system. Poverty and starvation are running high as crops have been failing for the last 13 years.⁹⁷ Burma’s laundry list of human rights abuses isn’t any better, being so horrific some parts of the United States, such as Massachusetts, have banned Burmese imports.⁹⁸ Forced labor related to the Unocal pipeline has brought the ruling junta under heavy fire for failure to pay workers.⁹⁹ And the use of children as soldiers also helps Burma join North Korea as a nation headlining the list of human rights violating nations.¹⁰⁰ Since the countries are so much alike, a new exception to national sovereignty could make North Korea a new target for offensive humanitarian aid.

As both countries are similar in the areas which provoke R2P, the next step in analysis is to look at whether North Korea is in a crisis, or in the near future can be in a crisis, which would allow the world community to invoke R2P. The Random House Unabridged Dictionary, defines crisis as, “a condition of instability or danger, as in social, economic, political, or international affairs, leading to a decisive change.”¹⁰¹ In that light, the next level of analysis is whether North Korea is in a crisis. As noted above North Korea has been plagued by drought for the last thirteen years. As a result the people face starvation and poverty every day. In Burma the call for R2P is as a result of an acute event which caused widespread starvation. Would it be such a stretch to go from an acute instance which causes the mass suffering of people, to a chronic problem which causes the suffering of millions?

The factors in North Korea make it a ripe location to show where R2P can go too far and destabilize an entire region of the World. Following is a ten step hypothetical which shows the possible escalation of a conflict in North Korea.

Step 2 (Catalyst): The drought worseness and the crop produce even less food causing millions to starve as food becomes unavailable in North Korea.

Step 3: (Human Aid Stockpiling) South Korea and other regional trading partners begin to stockpile food aid to help the people of North Korea.  The United Nations and the Red Cross also begin to mobilize humanitarian aid workers.

Step 4: (Refusal) Kim Jong Ill, fearing the country will be overrun by liberal reporters seeking to overthrow the communist regime, seals the boarders from all aid, stating that North Korea can handle its own problems.

Step 5: The United Nations has an R2P vote and elects to enter into North Korea and provide aid against the ruling parties wishes.

Step 6: North Korea, possessing one of the largest military forces in the World, organizes at the edge of the Demilitarized Zone (DMZ) in a show of strength.

Step 7: World Community moves peace keepers into North Korea to protect the aid workers.

Step 8: North Korea protects its borders, legitimately under the Westphalia philosophy, as it attempts to prevent armed soldiers from entering into its borders.

Step 9: With the deaths of peace keepers, United Nations calls upon nations of the world for larger military forces to be employed to protect humanitarian aid workers.

Step 10: United States commits troops to North Korea re-escalating the North Korean war, R2P has failed.

While this scenario is purely hypothetical, it is entirely possible. North Korea is highly isolationist, and being so is unlikely to allow aid workers into the nation. The United Nations is also unlikely to allow mass suffering to go on in North Korea much longer. The result is an inevitable conflict.

The suggestion of Bernard Kouchner to send offensive humanitarian aid into Burma, thus expanding the list of reasons IGO’s can breach national sovereignty, creates a very dangerous position in world politics.If the United Nations adopts this policy, then there is an uncertainty where a nation is a nation and not just a province of the United Nations. The United Nations was created as a forum for discussion, not a world government. The sovereignty of nations has been paramount in maintaining the uneasy peace of the last 70 years since World War II, to breach that sovereignty allows for the Bard’s cries of “Havoc” to echo loudly round the world and does in fact “let slip the hounds of war.”¹⁰²¹⁰³

Christopher Smithmyer

Edited by Katrina Cuskelly

Footnotes

1. CIA World Factbook, (2008) available at https://www.cia.gov/library/publications/the-world-factbook/geos/bm.html (Last visited May 16, 2008).
2. Id.
3. Id.
4. Martin Smith, Obituaries, General Ne Win: Burmese Military Strongman who’s Increasingly Obtuse Dictatorship Reduced His Country to Poverty, The Guardian, Friday December 6, 2002, available at http://www.guardian.co.uk/news/2002/dec/06/guardianobituaries (Last Visited May 16, 2008)
5. Id.
6. Id.
7. CIA World Factbook, Supra [FN 1].
8. Id.
9. Kristen Farrell, Corporate Complicity in the Chinese Censorship Regime: When Freedom of Expression and Profitability Collide, 11 NO. 7 J. Internet L. 1 at 17 (January 2008).
10. Patrick Goodenough (Int’l Ed.), China Insists Burma Cyclone Crisis Not An Issue for Security Council, Crosswalk.com. Available at http://www.crosswalk.com/news/11575287/ (Last Visited May 16, 2008), “French foreign minister Bernard Kouchner raised the issue in Paris on Wednesday, suggesting that if the junta would not cooperate the U.N. should invoke the “responsibility to protect” and deliver aid without awaiting approval.”
11. See Shelby Feuerbach, The Darfur Conflict and California: States Ability to Voice Human Rights Objections After Crosby, 17 Transnat’l L. & Contemporary Probs. 213 at 222 (Winter 2008).
12. Fredrick B. Jonassen, A Baby-Step to Global Labor Reform: Corporate Codes of Conduct and the Child, 17 Minn. J. Int’l L. 7 at 16, (Winter 2008), “Only once, in 2000, did the ILO invoke its enforcement mechanism, in that case against Burma for its continuous use of forced labor. The ILO requested all multilateral agencies of the U.N. to refrain from providing further assistance to Burma, in effect promoting a world-wide boycott of the country. The ultimate sanction that the ILO could take, that of expelling a country, is of little use because it would “negate any influence the ILO had over that country in the future.”; see also Robert Weissman, Stolen Youth: Brutalized Children, Globalization and the Campaign to End Child Labor, 18 Multinational Monitor 1, 9 (1997); see generally  Christiana Ochoa, From Odious Debt to Odious Finance: Avoiding the Externalities of a Functional Odious Debt Doctrine, 49 Harv. Int’l L.J. 109 at 149 (Winter 2008).
13. Steven Freeland, Mere Children or Weapons of War — Child Soldiers and International Law, 29 U. La Verne L. Rev. 19 (2008); see also United Nations Convention on the Rights of The Child (1989).
14. See Id.; see also Feuerbach, Supra FN 11]; Jonassen, Supra [FN 12].
15. CIA World Factbook, Supra [FN 1].
16. Id.; see Ochoa [FN 12].
17. Alexandra Reeve, Within Reach: A New Strategy for Regulating American Corporations that Commit Human Rights Violations Abroad, 2008 Colum. Bus. L. Rev. 387 at 392 (2008) Reeves discusses the appointment of judges at the whims of the junta and the progressing break down of individual property right, far beyond the Marxist ideas.
18. Id.
19. See Lindsay Eastwood, “Don’t Be Evil”: Google Faces the Chinese Internet Market and the Global Online Freedom Act of 2007, 9 Minn. J. L. Sci. & Tech. 287 at 299 (Winter 2008).
20. Reeve,  Supra[FN 17].
21. See Doe I v. Unocal Corp., 395 F.3d 987 (9th Cir. 2003); see also Eastwood, Supra [FN 19].
22. See Robert Howse, The End of the Globalization Debate: A Review Essay, 121 Harv. L. Rev. 1528 at 1532, (April 2008).
23. Farrell, Supra [FN 9].
24. Id.
25.  CIA Factbook, Supra [FN 1].
26. Id., Burma is susceptible to Hepatitis, Typhoid, dengue fever and malaria.
27. Stephanie Kleine-Ahlbrandt and Andrew Small, China’s New Dictatorship Diplomacy; Is Beijing Parting With Pariahs?, Foreign Affairs, Jan/Feb 2008. Vol. 87, Iss. 1; pg. 38
28. US Threatens Food Aid Drops on Burma, The Australian, May 9, 2008, http://www.theaustralian.news.com.au/story/0,25197,23669943-25837,00.html (Last Visited May 17, 2008).
29. Id.
30. Katie Bradford, Cyclone Nargis Impact “Bigger than Tsunami,” News.com.au, (May 17, 2008) available at http://www.news.com.au/story/0,23599,23714320-2,00.html (Last Visited May 17, 2008).
31. Weather Channel, www.weather.com (Last Visited May 17, 2008).
32. Id.
33. Id.
34. AP, Myanmar Cyclone Deaths Reach 78,000, May 17, 2008, Available at http://www.bnd.com/news/world/story/342998.html (Last Visited May 17, 2008); see also Bradford, Supra [FN ].
35. AP, Supra [FN 34]; Red Cross, www.redcross.org (Last Visited May 17, 2008).
36. News America Media, Myanmar’s Junta Gets Pass from China, May 16, 2008, available at http://news.newamericamedia.org/news/view_article.html?article_id=1230bdb7289976f016ebfd8ee810f5a3 (Last Visited May 17, 2008).
37. Id., it should also be noted that the Junta is not allowing hurricane regions to vote in the upcoming election.
38. Maggie Farley and Paul Richter, Mynamar Leaders Accuse France of Sending “Warship”, Los Angeles Time, May 17, 2008, Available at http://seattletimes.nwsource.com/html/nationworld/2004420768_cyclone17.html?syndication=rss, “France argues that the council enshrined an agreement by world leaders at a U.N. summit in 2005 that the United Nations has a “responsibility to protect” people when nations fail to do it. But that agreement referred only to genocide, war crimes, crimes against humanity and ethnic cleansing.” (Last Visited May 17, 2008).
39. Id.; see also Amerita Sharma, Is ‘Isolationism’ Costing Myanmar Dear?, Hindustan Times, May 13, 2008, available at http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=4b034f1b-7f37-4500-85fb-fb01b4105eb2&ParentID=ba4064dc-2bd6-488a-ae07-a1d4ca539822&&Headline=Is+’isolationism’+costing+Myanmar+dear%3f. “The survivors grapple with the tragedy, struggling with makeshift shelters, scrounging around the stinking debris for remnants of food, battling hunger, thirst and hopelessness in the face of disease and starvation. But the authoritarian junta continues to filter aid and relief coming into the country. International relief agencies seeking to extend help in disaster management are meted out a cold shoulder.” (Last visited May 17, 2008).
40. Bradford, Supra [FN 30].
41. Steven Erlanger, France Urges UN to Force Cyclone Aid on Mynamar, IHT.com, May 7 2008, available at http://www.iht.com/articles/2008/05/07/europe/cyclone.php (Last Visited May 17, 2008).
42. See Red Cross, Supra [FN 35].
43. Farley, Supra [FN 38]; see also Erlanger, Supra [FN 41].
44. See generally Peace of Westphalia (1648).
45. Gandolfo v. Hartman, 16 L.R.A. 277, 49 F. 181, (Jan. 25, 1892).
46. United Nations Charter Ch. VI-VII, (1945); see also The American Society of International Law, U.S. Officials Endorse “Responsibility to Protect” through Security Council Action, 100 Am. J. Int’l L. 463 (April 2006).
47. See A.V.P. Rodgers, Humanitarian Intervention and International Law, 27 Harv. J.L. & Pub. Pol’y 725 at 736 (Summer 2004).
48. Id.
49. Id.; see also UN Charter VI-VIII.
50. Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 162 Oil & Gas Rep. 1034 (S.D.N.Y.,2005), “[a]s described in this section [of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide], the elements of genocide encourage, and of crimes against humanity require, proof of numerous attacks in order for any one attack to qualify as an instance of genocide or crimes against humanity.”; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 1993 WL 589842 (I.C.J.), 1993 I.C.J. 325 (ICJ 1993).
51. UN Charter.
52. Presbyterian Church Case,  Supra [FN 50].
53. In re Agent Orange Products Liability Litigation, 373 F.Supp.2d 7, Prod.Liab.Rep. (CCH) P 17,342 (E.D.N.Y.,2005), Citing ICC.
54. Rodgers, Supra [FN 47].
55. Id.
56. Id.
57. The Australian, Supra [FN28].
58. Rodgers, Supra [FN 47].
59. Id.
60. Farley, Supra [FN 38].
61. News America Media, Myanmar’s Junta Gets Pass from China, May 16, 2008, Available at http://news.newamericamedia.org/news/view_article.html?article_id=1230bdb7289976f016ebfd8ee810f5a3 (Last Visited May 17, 2008).
62. Id.
63. Rodgers, Supra [FN 47].
64. Erlanger, Supra [FN 41].
65. Rodgers, Supra [FN 47]; News America Media, Supra [FN 61].
66. Rodgers, Supra [FN 47].
67. Red Cross, Supra [FN 38].
68. Rodgers, Supra [FN 47].
69. Red Cross, Supra [FN 38].
70. Rodgers, Supra [FN47 ].
71. Id.
72. Farley, Supra [FN 38].
73. Id.
74. Rodgers, Supra [FN 47].
75. Red Cross, Supra [FN 38].
76. Farley, Supra [FN 38].
77. Id.
78. Gandolfo v. Hartman, Supra [FN 45].
79. Presbyterian Church Case, Supra [FN 50].
80. Goodenough, Supra [FN 10].
81. Farley, Supra [FN 38].
82. Id.
83. Erlanger, Supra [FN 51].
84.  Id.
85. Farley, Supra [FN 38].
86. Angie Knox, BBC Profile: Kim Jong Il, available at http://news.bbc.co.uk/2/hi/asia-pacific/783967.stm (2000).
87. See Max Barrett, Ireland’s Anti-Terrorist Financing Legislation, J.I.B.L.R. 2008, 23(3), 134-141 (2008); John O’Brian, Political Balk: Opening the Door for U.S.-Cuba Policy Reform Via Diplomatic Blunder at World Baseball Classic, 15 Vill. Sports & Ent. L.J. 135, (2008).
88. See Eastwood, Supra [FN 19]; Farrell, Supra [FN 9].
89. CIA Factbook, Supra [FN 1]. 
90. Id.
91. Id., see also www.UN.org (2008).
92. Infra.
93. See Eastwood, Supra [FN 19]; Farrell, Supra [FN 9].
94. Search was conducted in both Westlaw and Google.
95. Elim Chan, North Korean Refugees and International Refugee law, 19 Int’l J. Refugee L. 215 (July 2007).
96. Grace M. Kang, Esq., A Case for Prosecution against Kim Jong Il for Crimes Against Humanity, War Crimes, and Genocide, 38 Colum. Hum. Rts. L. Rev. 51 (Fall 2006).
97. Natalie Huls et all, International Legal Updates, 14 NO. 2 Hum. Rts. Brief 48 at 54, (Winter 2007).
98. Erwin Chemerinski, A Troubling Trend in Preemption Rulings, 44-MAY Trial 62, (May 2008).
99. Doe I v. Unocal Corp., 395 F.3d 987 (9^th Cir. 2003).
100. Steven Freeland, Mere Children or Weapons of War — Child Soldiers and International Law, 29 U. La Verne L. Rev. 19 (2008); See Also United Nations Convention on the Rights of The Child (1989).
101. Dictionary.com, available at http://dictionary.reference.com/browse/crisis (Last visited June 16, 2008). 
102. William Shakespeare, Julius Caesar, Signets Classic Shakespeare (1998).
103. It should be noted that after this article was finished the Burmese government allowed in limited aid workers and diffused the situation to the point the international media began to ignore the problem again to pursue more “exciting” stories. However, the problem of R2P still exists as long as its further expansion into other areas is still suggested.