The Effects and Limitations of Humanitarian Intervention from the Perspective of the No-fly Zone Practice

Zhao Guangcheng

The Effects and Limitations of Humanitarian Intervention from the Perspective of the No-fly Zone Practice

Zhao Guangcheng

In April 1991 and August 1992, with their victories in the Gulf War, the United States, the United Kingdom, and France set up the “safe area” to protect the Kurdish people, and the “no-fly zone” to ensure the safety of the Shiite Muslims in Iraq on their own accord. These practices, based on understandings of the United Nations Security Council Resolution No. 688, constituted a new precedent of humanitarian intervention. That is, when a country is trapped in serious internal turmoil, the international community may establish up a no-fly zone to protect the inferior conflicting parties. This precedent was further applied during the international intervention in the Bosnia-Herzegovina war and the Libyan internal turmoil last year. With more and more countries coming to accept this practice, it has emerged as a UN mandated humanitarian intervention pattern and will probably be further practiced in the international relations in future. The following article will analyze the international legal basis of the no-fly zone, examine three specific cases in which the practice was applied, and analyze the effects and limitations of the practice in international relations.

I. The International Legal Basis for No-fly Zones

Modern international law takes principle of state sovereignty as is cornerstone and thereby prohibits the use of force in international relations. According to the Dutch jurist Hugo Grotius, renowned as “Father of the International Law,”sovereignty remains the prerequisite for the existence of states, as sovereignty refers to the supreme ruling power of a state, i.e. the power by which actions of a sovereign entity are not subjected to the will of any other person or law. The French philosopher Jean Bodin was the first to use the concept of sovereignty explicitly and gave the term its modern meaning in 1576 when he defined it as the supreme authority of the state to rule its people and subjects and not be bounded by law. Around the Thirty Years’ War in Europe, the sovereignty theory began to shift from a political ideal into an actual international practice. The principle of state sovereignty was set to be the pillar of the international legal regime that was to preside after the World Wars. Of the seven principles listed in Article 2 of the UN Charter, three are about state sovereignty and the equality of states. To maintain the inviolability of state sovereignty, Provision 4 of Article 2 states clearly that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”

The proposition of limiting sovereignty appeared directly after the establishment of the principle of sovereignty. The international intervention on the grounds of “human rights” and“humanitarianism” has been a matter of common occurrence throughout history. As early as the end of the Middle Ages when the modern nation states were in their infancies, Dante Alighieri proposed to establish a “world empire” under the reign of one monarch to realize peaceful and just ruling and the full development of human beings. Immanuel Kant raised the idea of a “world citizen” at the end of 18th century, believing that every person had the “rights of a world citizen” and formed a world union where their relations were adjusted by some form of cosmopolitan law. In the course of the creation and development of the idea of the “world citizen,” armed interventions for the protection of human rights have occurred from time to time. In June 1860, European countries headed by France established a multinational force with 12,000 personnel to conduct a six-month intervention in the religious sectarian conflict in Lebanon of the Ottoman Empire, setting a precedent of collective humanitarian intervention against a sovereign power. Since World War II, there have been increasing armed interventions under the signboard of humanitarianism. The UN sanctions against the racist South African apartheid regime were not aided with armed intervention. However, indicating that the situation in South Africa “if continued may endanger the international peace and security,” the UN Security Council Resolution 134 opened a legal aperture for the resolutions to establish no-fly zones.

The end of the Cold War ushered the practice of humanitarian intervention into a new era. Humanitarian interventions during the Cold War were not mandated by the UN and were thus illegal. Therefore, they were implemented by the majority stakeholders for the purpose of protecting their overseas citizens in other countries. Since the end of the Cold War, humanitarian intervention has increased drastically: the 1991 intervention in Iraq, the 1992 intervention in Somalia, the 1994 intervention in Haiti, and the 1992-1999 intervention in former Yugoslavia, just to name a few examples. Compared with interventions during the Cold War, the post-Cold War era presents some new features. Firstly, the number of interventions has increased rapidly, and mostly with the mandate of the UN Security Council. Secondly, the interventions have collective actions with an increase in participating countries. Some of them were even implemented by the North Atlantic Treaty Organization and the European Union. Thirdly, the purpose of intervention is not only to protect overseas citizens, but also to protect the human rights and security of citizens in given target countries. The most significant change is the normalization of UN-mandated no-fly zones in territories of unrest. With the repeated practice of enacting no-fly zones in international relations, few countries would deny its legitimacy in a clear-cut manner. There are even a number of small and weak countries that support the practice. Thus, it appears that, as a pattern of humanitarian intervention, the no-fly zone is becoming an internationalnorm.

The practice of no-fly zones has challenged the existing conception of non-interference in other countries’ internal affairs. From the perspective of the international law, a sovereign state as an actor in international relations must have four components: a defined territory, permanent population, effective government, and extensive international recognition. This shows that sovereignty is in the exclusive jurisdiction of a government over a territory and its population. The effectiveness of jurisdiction is predicated on an internal sense of identity and an external recognition by the international society. The elements of sovereignty are also defined by three antitheses, namely human rights, the right of national self-determination, and hegemony or supranational authority externally. The challenges of sovereignty come from these aspects. The population of a given country may negate the authority of the government or even organize anti-government groups to fight for human rights; the minority ethnic groups may deny the legitimacy of the jurisdiction of the central government citing their right of self-determination, thus becoming separatist forces; or foreign governments or international society may violate a country’s right to equal sovereignty and deny the legitimacy of its government accusing its dictatorship (over the whole population) or national oppression (against minority ethnic groups). These three challenges need to assume a common path in constraining state sovereignty, either totally or partially depriving the government of the right to jurisdiction over its population or territory. The establishment of no-fly zones has become an effective and convenient way to realize this objective.

Out of necessity, the establishment of no-fly zones will be violently opposed by the government’s of the involved countries. Therefore, it becomes a precondition to keep the country involved from using force for the establishment of no-fly zones. From the practice in Iraq, Bosnia-Herzegovina, and Libya, the purpose of establishing no-fly zones is to protect inferior parties from being exterminated in armed conflict, which is tantamount to violating the sovereignty of given countries. As the actual holder of state sovereignty, the government will inevitably resist the establishment of no-fly zones, even resorting to militant means to suppress the practice. In order to inhibit and defeat the entrance of the armed forces of the superior party, it is necessary for the third party to deploy air power with absolute advantage. According to its literal meaning, no-fly zones only prohibit aircraft of either party in the conflict but do not impact ground forces. In reality however, the three practices have shown that no-fly zone executors not only forbade the entrance of aircraft and ground forces of the superior party, but also waged strikes on the military and non-military targets outside the no-fly zones.

Because the establishment of no-fly zones involves the use of force, it must be mandated by the UN Security Council. The UN Charter prohibits violations against the sovereignty of other states and the use of force in international relations. However, Provision 7, Article 2, Chapter I and Chapter VII provide two exceptions: the right of the individual or collective to self-defense as stipulated in Article 51, and the right of the UN Security Council “to maintain or restore international peace and security,”as stipulated in Article 39. If the internal affairs of a state are deemed to have threatened or damaged world or regional peace and security, the UN Security Council has the right to request, through a resolution, that the government involved improve its domestic human rights and implement the resolution through ways other than armed force. “Should the Security Council consider that measures… would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” In such cases, military actions taken by the relevant countries of international organizations against the countries concerned are to eliminate “humanitarian disasters”from a standpoint of morality and justice, and to exercise the right of “collective defense” in terms of jurisprudence. The western countries effectively exploited the grey area of the UN Charter in setting up no-fly zones.

In order to gain legitimacy through the UN mandate, the establishment of no-fly zones must go through strict procedures in the UN Security Council. Internal situations that do not involve other countries can still be viewed as constituting a threat to international or regional peace. These cases are deemed humanitarian disasters, which arouses extensive concern over whether the conflicting parties are violating human rights or causing an increase in international refugees, both of which present a threat to regional and international stability. It is up to the UN Security Council to determine whether such situations are created or not. Even if the UN Security Council has identified such a situation, the use of armed force is not to be applied directly. A resolution is to be passed to first call on the government concerned to settle the problem by itself. If the government does not take any measures or the measures taken are not effective, the UN Security Council will subsequently pass another resolution to force the government to take all effective measures that do not involve the armed forces. If it has been proven or the UN Security Council has established that no means but the armed forces can solve a problem, the UN Security Council then passes a resolution to mandate that member countries adopt “take all necessary means.” Once such a resolution is passed, the legal procedures of establishing a no-fly zone are over, because “all necessary means” includes the use of force.

II. Three No-fly Zone Practices Up to Date

It is extremely difficult to set up a no-fly zone on the territory of a country due to limitations of jurisprudence, diplomacy, and armed forces. During the Cold War era, as humanitarian interventions could not be endorsed unanimously by the five permanent members of the UN Security Council, the no-fly zone measure was not used. Since the end of the Cold War, although the UN Security is able to take concerted action, humanitarian interventions in the form of the no-fly zone have been executed only three times. The three practices have provided us with valuable lessons to examine the effectiveness and limitations of no-fly zones.

1. The Gulf War and the Iraqi No-fly Zone

Iraq is a multi-ethnic country. The Arabs, as the major ethnic group, account for 73% of the whole population of the country, while the biggest minority ethnic group, the Kurds, account for about 21%. The Kurds have been engaged in a longstanding fight for national autonomy and independence. Iraq is also a Muslim country with 95% of its population believing in Islam. Of this 95%, 54.5% are adherents of Shiite Islam and 40.5% are adherents of Sunni Islam. The Sunnis have long controlled the central political power and suppressed the Shiites, who represent the majority of the country. Iraq is also a big power in the Middle East, boasting rich petroleum resources and holding an important strategic position. Hence, it has long been an object of contest between big powers.

The 1990 Gulf War weakened the Saddam regime and also heightened the internal contradictions that had been long depressed. Multinational forces headed by the United States drove the Iraqi forces out of Kuwait in February 1991 with the mandate of the UN Security Council Resolution 678. During the war, the Kurds and the Shiites seized the chance to control large areas of northern and southern Iraq. After the Gulf War ended, Saddam put down the anti-government activities of the Kurds and the Shiites with armed forces, causing 1.5 million Iraqi people to flee to Turkey and Iran for refuge.

Saddam’s suppression on the Kurds and the Shiites has provided the United States, the United Kingdom, and France with a pretext for the establishment of no-fly zones in Iraq. Pushed by the Untied States, the United Kingdom, and France, the UN Security Council passed Resolution 688 on April 5th, 1991, condemning the repression of the Iraqi civilian population in many areas, including the Kurdish populated areas, claiming that the Iraqi government’s policies had led to “a massive flow of refugees towards and across the international frontiers and to cross border incursions which threaten international peace and security in the region.” The Resolution also insisted “that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance…” The United States, the United Kingdom and France soon established a “safe area” to protect the Kurdish people in northern Iraq to the 36th parallel north. With the Kurdish people protected in this safe area, the Iraqi authorities turned to the south to exterminate the Shiite Muslims. Subsequently, the United States and the United Kingdom established a no-fly zone in southern Iraq to the 32nd parallel north in August 1992, all in the name of protecting the Shiite Muslims, prohibiting the Iraqi military and civil aircrafts from entering the area.

The UN Security Council Resolution 688 turned out to be a milestone in the history of international intervention. Firstly, Resolution 688 expanded the interpretation of the situation that “threatens the international security and peace” in that the human rights violations occurring in one country could suddenly be interpreted as threats to international peace and security and the UN Security Council could mandate the use of force to stop the occurrence and continuation of such violations. Secondly, the safe areas and the no-fly zones were set up under the auspices of the UN Security Resolution and with actual involvement of the UN thereafter, creating a precedent of the UN’s open intervention in the internal affairs of sovereign states. Finally, by establishing the no-fly zones in Iraq, the United States, the United Kingdom, and France used the UN’s legitimacy in international affairs as a fa?ade to interfere in other country’s business. In fact, the establishment of no-fly zones was not directly or explicitly mandated by the UN but instead carried out by the Untied States, the United Kingdom, and France on the basis of their own interpretations of the UN Security Council Resolution 688.

2. The Yugoslavia Civil War and the Bosnia-Herzegovina No-fly Zone

In early 1990s, when former Yugoslavia was moving towards disintegration, the independence of the Bosnia-Herzegovina triggered the largest war in post-World War II Europe. Owing to different opinions of the three major ethnic groups on the question of unification and independence, the war between the three forces devolved into ethnic attacks and murders, quickly becoming the biggest humanitarian disaster in the history of Europe since the World War II. Although assuming the biggest population and the largest number of forces, the Muslims were far inferior to the Serbs and even to the Croatians in fighting capacity. By the end of 1993, the Serbs and the Croatians controlled 70% and 20% of the territory respectively, while the Muslims only controlled about 10%. The big western powers and the UN failed in their mediations owing to their support for the Muslims and not the Serbs.

On September 25, 1991, claiming that the warfare on the territory of Yugoslavia “constituted a threat to the international peace and security,” the UN Security Council Resolution 713 started “a general and complete embargo on all deliveries of weapons” to Yugoslavia. On February 21st, 1992, the UN Security Council Resolution 743 decided to deploy a UN Protection Force in Yugoslavia. The UN Security Council Resolution 757, enacted on May 30th, established a safe area in Bosnia-Herzegovina, and at the same time executed general economic sanctions against the Federal Republic of Yugoslavia and the Bosnia-Herzegovina Serbs. The October 9th UN Security Council Resolution 781 announced the establishment of no-fly zone on the whole territory of Bosnia-Herzegovina. UN Security Council Resolution 816 dated March 31st, 1993 authorized member states or international organizations to“take all necessary measures in the airspace of the Republic of Bosnia and Herzegovina … to ensure compliance with the ban on flights…” The UN Security Council Resolution 824 dated May 6th of the same year determined the six threatened Muslim cities and their surroundings as the safe areas. The UN Security Council Resolution 836 dated June 4th, 1993 authorized the UN Protection Force to use force to protect the safe areas, all while permitting NATO to provide support to the UN Protection Force through the use of air power.

The UN Security Council Resolutions provided western countries with the legal basis to strike the Serbs, while the United States and NATO replaced the UN in managing the Bosnia-Herzegovina affairs. Soon after Resolution 816 was adopted, NATO sent forces to Bosnia-Herzegovina to execute their proposed flight ban. On February 28th, 1994, the UN Protection Force engaged in its first crossfire with the Serbian armed forces and shot down four of the Serbs’ light striking aircrafts. On April 10th, the UN Protection Force delivered the first air strike on the Serbian ground forces. In August of the year, NATO destroyed the Serbian ground forces with air strikes for half a month and the Muslims and the Croatians thus took the chance to occupy the areas. Consequently, the Serbs had to accept the harsh ceasefire plan put forward by the United States. On November 21st, 1995, U.S. President Clinton chaired the signing ceremony for the Dayton Agreement which attempted to realize general peace in Bosnia-Herzegovina and mandated the NATO-led Implementation Force and Office of High Representative. On December 15th, 1995, the UN Security Council adopted Resolution 1031 to authorize NATO to organize a multinational force to stay in Bosnia-Herzegovina for around one year and “take all necessary measures to effect the implementation of… the peace agreement.” At the same time, the Resolution decided to withdraw the UN Protection Force from Bosnia Herzegovina.

Compared with the no-fly zones established by the United States, the United Kingdom and France in Iraq, the intervention of the UN in the civil war of Yugoslavia and Bosnia Herzegovina took another big step forward. First, the establishment of the no-fly zones and safe areas were clearly mandated by the UN, deriving legitimacy respectively from the UN Security Council Resolutions 781 and 824. Second, NATO became the actual executor of the UN Security Council Resolutions, realizing the provisions of Chapter VIII of the UN Charter concerning “Regional Arrangements.” Thirdly, in the course of their mission, NATO more often than not circumvented the UN Security Council and used force excessively. In fact, NATO was actually interfering in the internal affairs of other countries in the name of the UN. Finally, besides establishing no-fly zones, the UN also set up an International Criminal Tribunal in Former Yugoslavia and arrested the key military and political figures of the Federal Republic of Yugoslavia and the Bosnia-Herzegovina Serbs, the first attempt ever since the Nuremberg and the Tokyo trials.

3. The Upheavals in North Africa and the No-fly Zone in Libya

Muammar Gaddafi stayed in power for 42 years after staging a coup d’état in 1969. During his long reign, Libya long engaged in confrontations with the West. From 1999 to 2003, Gaddafi made substantive concessions on the question of the Lockerbie bombing and gave up the nuclear plan ha had pursued for years, hence improving relations with western countries. However, no sooner were the international sanctions lifted than the internal situations took a sudden U-turn. On February 15th, 2012, the second largest city, Benghazi, burst into an uprising, which rapidly spread to Tripoli, the capital city, and other places of the country. The anti-government forces of various places soon assembled in Benghazi and a host of governmental officials and senior military officials defected to the opposition, leaving Gaddafi’s regime in desperate straits.

Meanwhile, Gaddafi’s suppression of the anti-government forces aroused wrath in the international society. The League of Arab States and the African Union condemned the violence of the Libyan authorities. The League of Arab States also suspended Libya’s right to attend meetings of the League and its affiliated organizations. The United States, the European Union, Canada, and other western countries consecutively announced severe sanctions against Libya and the country’s senior officials. The UN became involved in the internal affairs rapidly and in a high profile. On February 25th, 2011, the UN Human Rights Council held an ad-hoc meeting discussing the situation in Libya. On March 1st, the UN General Assembly suspended Libya’s membership in the UN Human Rights Council. On February 26th, the UN Security Council unanimously adopted Resolution 1970, condemning “the serious violations of human rights and international humanitarian law” and deciding to free the assets of Gaddafi and his key family members. Some countries even denied the legitimacy of the Gaddafi authority. The United States President Obama clearly stated that Gaddafi must step down and leave Libya. The French government took the lead in “recognizing the National Transitional Council as the legitimate representative of the Libyan people”; Qatar among the Arab countries and Gambia among the African countries also recognized the opposition as the legitimate government of Libya on March 28th and April 22nd respectively.

When the Gaddafi forces were gaining ground in their counterattack, the establishment of no-fly zone in Libya was promptly put on agenda. Faced with a formidable offensive by the governmental army, the opposition called upon the international community to set up no-fly zones in Libya. Western countries responded actively and massed troops hastily. On March 12th, the foreign ministers of the League of Arab States gathered in Cairo for an emergency meeting, requesting that the UN Security Council impose a no-fly zone in the Libyan airspace to protect the civilians from bombardment. On March 17th, the UN Security Council adopted Resolution 1973, proposed by the United Kingdom, France, and Lebanon, deciding to establish a ban on all flights in the airspace of the Libya except humanitarian flights. The Resolution also authorized member states to “act nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights.” On March 18th, Libya declared a ceasefire immediately and abided by the flight ban, expressing willingness to talk with the opposition. However, some countries were determined to topple Gaddafi. On March 20th, France and the United States started air strikes on Libya while Denmark, the United Kingdom, Canada, Qatar, and United Arab Emirates joined the strike with their own air forces. On April 4th, NATO took over the military actions in Libya, officially becoming a belligerent party in the Libyan war.

The UN followed the Bosnia-Herzegovina model in the establishment of no-fly zones in Libya. However, NATO and relevant countries went further in their enforcement of the flight ban. First, the establishment of the no-fly zone in Libya was a prompt action. The UN Security Council condemned and sanctioned the Gaddafi authority directly in Resolution 1970, but barely 20 days later, Resolution 1973 already purported to establish no-fly zone and mandate the use of force. Second, western countries were seeking to remove Gaddafi from office by means of establishing the no-fly zone. Therefore, even when the Libyan government obeyed the flight ban, they still exercised an air strike. Thirdly, the military actions of the western countries went far beyond the scope of a mere flight ban. Despite repeated ceasefire declarations by the Libyan army, the opposition refused to negotiate with the government. Western countries also refused to settle the Libyan problem through peaceful talks, carrying on air strikes against Tripoli, the ground forces of the Libyan government, air defense facilities, and civil airports. Finally, Gaddafi was announced as a criminal of war with exceptionally rapid speed. On May 16, when the UN Special Envoy on the Libyan question was mediating between the Libyan government and its opposition, the International Criminal Court issued arrest warrants for eight senior officials of the Gaddafi government, including Gaddafi himself.

III. Effects of No-fly Zones and Conditions for the Establishment

In all of the above-mentioned cases of no-fly zones, western countries realized their strategic objectives through the UN Security Council Resolutions and surpassed the mandates of the UN and used force excessively. However, the establishment of these no-fly zones was mandated directly or indirectly by the UN Security Council. Hence, their “l(fā)egitimacy” is undoubted in terms of international law. More importantly, with the three cases, as a means of humanitarian intervention the no-fly zone is accepted by more and more countries and appears to be becoming an international norm. It is just for this reason that other countries can hardly assume a clear-cut opposition when western powers promote the establishment of no-fly zones and enforce flight bans, only to put the target country in a passive position where they can do nothing but be assaulted. The no-fly zones established by the United States and the United Kingdom in Iraq protected the Kurdish people and the Shiite Muslims, creating a scenario where the three ethnic groups could share the Iraqi central political power. The no-fly zone set by the United States and the NATO in Bosnia-Herzegovina weakened the Serbs and helped the Muslims dominate the political power of Bosnia-Herzegovina. The NATO and relevant countries toppled the Gaddafi regime through the establishment of no-fly zone in Libya and ushered the vulnerable opposition force into the ruling office of the country.

However, the other features of the three practices show that the applicable conditions for the establishment of no-fly zones are strict.

Firstly, the establishment of a no-fly zone must be authorized by the UN Security Council. The establishment of a no-fly zone constitutes a violation of the jurisdiction of a state over its territory and at the same time means that relevant countries or international organizations can use force against the target state, running counter to principles of sovereignty and nonuse of force in the international legal sphere. However, absolute sovereignty is not recognized in the UN Charter. Nor is the use of force totally prohibited with a few exceptions listed in the Charter. In order to prevent the abuse of these exceptions, the UN Charter subjects the two rights to the prudence of the UN Security Council. Specifically speaking, the use of force is strictly forbidden in international relations except when the UN Security Council acts in accordance with Chapter VII of the UN Charter; Even when relevant countries exercise the individual or collective right of defense, “measures taken …shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council… to take at any time such action as it deems necessary…” Otherwise, the act will be counted as a stark and punishable act of aggression.

Secondly, after the no-fly zones were established, they must be imposed by big powers or international organizations. The mandate of the UN Security Council only endows the act with legitimacy, while the key lynchpin of establishing no-fly zones is to hold the armed forces of the concerned parties at bay. In fact, just as the adoption of UN Security Council Resolutions should be promoted by big powers, the establishment of no-fly zones should also be imposed by relevant big powers with superior force. The no-fly zones in Iraq and Bosnia-Herzegovina were all violated or occupied by government forces and could not be retained without military strikes from the United State and the United Kingdom or the NATO. On the contrary, in the safe area for the Serbs in Croatia, set up by the UN and enforced by the UN Protection Force, when the Croatian armed force attacked it in August 1995, the UN Protection Force stood aloof, leading to the rapid elimination of the Republic of Serbian Krajina. The reason that UN safe areas came to very different endings in Bosnia-Herzegovina and Croatia is that the military protection missions offered by the NATO forces were substantially different.

Thirdly, no-fly zones can only be imposed on the weak and small countries. The first two conditions for the establishment of no-fly zones indicate that the target countries trapped in such situations are not able to safeguard their own sovereignties when confronted with military violations from outside. These countries must be small and weak, without effective retaliatory means. On the other hand, no-fly zone executors must be big powers with super striking forces. Only such kinds of big powers can guarantee absolute military advantage to deter and attack any violation against the no-fly zones. The military powers of Iraq, Bosnia-Herzegovina, and Libya are not comparable with those of the United States, the United Kingdom, France, and the NATO. As a result, there were no obstacles in the actions of establishing no-fly zones. When Russia was suppressing the Chechen anti-government forces, no Western countries ever thought of establishing a no-fly zone in Chechnya, because such a resolution would not have been adopted by the UN Security Council and could not have been implemented.

Fourthly, no-fly zones can only be set up at times of internal turmoil in weak and small countries. The exceptions for use of force referred to in the UN Charter pertain to cases in which a country threatens the international or regional peace due to its behavior. Given that no-fly zones are set up in the territories of states, this excludes situations in which it is acting aggressively against other countries. Therefore, to establish a no-fly zone in a weak and small country, the UN Security Council must identify a certain situation in that state threatening the international or regional peace and security, despite the fact that the state has not committed acts of aggression against other countries. This situation could be something as trivial as unrest that could potentially lead to a humanitarian crisis of some sort. Faced with such emergencies, the UN Security Council could interpret the violation of human rights as a violation of the International Humanitarianism Law or categorize the refugee flow caused by the unrest as a threat to the international peace and security before it decides to establish a no-fly zone in the territory of the state to protect the inferior parties in the conflict.

Fifthly, the concerned state must have resources irresistible to big powers. The internal turmoil of the weak and small countries only provides the necessary condition for the establishment of no-fly zones in its territory. Whether the relevant big powers will promote the establishment of no-fly zones depends on whether the target state has attractive resources. Up to date, no-fly zones have all been promoted by big powers. It is proven that while the Western countries actively advocate and promote International Humanitarianism Law, they themselves are only involved in powerful commitments if the concerned states carry critical strategic interests. These interests could be either key resources (Iraq and Libya) or the symbol of political power (Yugoslavia). Otherwise, even if the humanitarian disasters had really occurred, the big powers would not conduct any intervention. Under some conditions, the big powers may even withdraw from the intervention once they are confronted with difficulties (Somalia).

Finally, superior parties in internal turmoil are commonly eyed with hostility in the western countries. According to the texts of the UN Security Council Resolutions, the establishment of nofly zones is to protect the inferior parties from being persecuted or suppressed. However, for big powers to promote no-fly zones, they are acting out of more than simply sympathy for the inferior parties – they are largely acting out of the hostility toward the superior parties. As the big powers intervene in the internal conflicts of small countries to win strategic interests, they need to prop up friendly governments in these countries. If the state government of a small and weak country maintains good relations with the big powers, the latter does not need to support the opposition to topple the existing government, even if they do not agree with the policies of the incumbent. Western countries were hostile toward the Saddam regime and set up a no-fly zone to protect the Kurdish people; however, when the Turkish forces suppressed the Kurdish people on Iraq’s doorstep, the Western countries remained indifferent thanks to their good relations with the Turkish government. Western countries imposed the Bosnia-Herzegovina flight ban due to hostility towards the Bosnia-Herzegovina Serbs, but they remained detached when the Croatian government force seized the Serbian safe area.

IV. Conclusion

Sovereignty and human rights are two values that appear simultaneously and yet run counter to each other. They are also the two major notions that frame modern international law. As the core of international law, the UN Charter centers on states with the principle of sovereignty as its basis and subjects human rights to the jurisdiction of sovereignty. However, refusing absolute sovereignty, the Charter also pays adequate attention to human rights and humanitarianism through the adoption of a series of declarations and resolutions to safeguard human rights and the establishment of the Human Rights Council in 2006. Western countries are exploiting the grey areas of the Charter to preach tunes of “human rights over sovereignty” and put these ideas into practice through the establishment of nofly zones in the territories of small and weak states.

The three practices of no-fly zones in Iraq, Bosnia-Herzegovina and Libya have shown the following four trends. First, starting from action without authorization, the big powers turned to appeal for the authorization of the UN Security Council. The no-fly zones in Iraq were set up by the United States, the United Kingdom, and France on their own accord under the signboard of the UN Security Council Resolution, while the no-fly zones in Bosnia-Herzegovina and Libya were all imposed with explicit mandates from the UN Security Council. Second, the tedious procedures have begun to be streamlined. When the UN Security Council established no-fly zones in Bosnia Herzegovina, it took an extremely cautious attitude. The decision was not made until after the adoption of 25 resolutions over a period of 13 months. However, when it came to Libya, the no-fly zone was established through two resolutions within less than one month. Thirdly, the no-fly zones were going from disputes to consensus. The no-fly zones in Iraq were disputable due to the lack of legitimacy to be endowed by the UN authorization. But on the other hand, the focus of disputes on the no-fly zones in Bosnia-Herzegovina was not on the legitimacy of no-fly zones per se. Rather, it is on whether it is necessary to use force, whether force was excessively used, and whether the UN mandate was overstepped. Fourthly, Western countries established no-fly zones through imposition at first. Later on they were invited for the establishment of nofly zones. The no-fly zone in Libya was established under the invitation of the League of Arab States and some Arab states even participated in the air raids against Libya.

The above-mentioned trends show that establishment of nofly zones is becoming the international norm as a humanitarian intervention tool. Predictably, when a state lacking effective means of retaliation experiences serious internal turmoil, the international society will probably carry out humanitarian intervention.

The establishment of no-fly zones has increased drastically, while the process is becoming easy at last. However, both judged by jurisprudence and practice, as the establishment of no-fly zones violates the sovereignty of the concerned state, its application in international relations is subject to strict conditions and its role will also be limited.

Zhao Guangcheng is Lecturer with the Institute of Middle Eastern Studies, Northwest University. He holds a PhD in international relations.