The Responsibility to Protect in International Law

Philosophical Investigations

Natalie Oman

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317017912
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book tracks the development of the emerging international legal principle of a responsibility to protect over the past two decades. It contrasts the influential version of the principle introduced by the International Commission on Intervention and State Sovereignty in 2001 with subsequent interpretations of the responsibility to protect advocated by the United Nations through its human protection agenda, and reviews the dangers and inconsistencies inherent in both perspectives. The author demonstrates that the evolving responsibility to protect principle can be recruited to support a wide range of irreconcilable projects, from those of cosmopolitan constitutionalism to those of hegemonic international law. However, despite the dangers posed by this susceptibility to conceptual hijacking, Oman argues that the responsibility to protect, like human rights, is an essential a modern emancipatory formation. To remedy this dangerous malleability, the author advocates a third, distinctive interpretation of the responsibility to protect designed to limit its cooptation by liberal anti-pluralist and hegemonic international law agendas. Oman outlines the key features of such a minimalist conception, and explores its fit with the "RtoP" version of the responsibility to protect promoted in recent years by the UN. The author argues that two crucial features missing from the UN reading of the principle should be developed in future: an acknowledgement of the role of non-state actors as bearers of the responsibility to protect, and a recognition of the principle's legal character. Both of these aspects of the principle offer means to democratize the international law-making enterprise.

1 A philosophical underpinning for a state’s “responsibility to protect”

This chapter grapples with the ethical implications of the humanitarian crises that have multiplied during the era of global disorder and realignment precipitated by the end of the Cold War. These catastrophic events have wracked countries of the economic south that have lost or gained strategic importance to the great powers (Somalia, Rwanda, Sierra Leone, Sudan, Libya, Democratic Republic of Congo, Syria, Myanmar, Central African Republic, Venezuela), the political communities of the dismantled Soviet Union and Yugoslavia that are no longer fully subject to the disciplinary action of their former metropoles (Chechnya, Bosnia, Kosovo, Ukraine), and peoples who lack state status of their own (Kurds, Yazidis, the Maya of Guatemala).

These humanitarian crises have played out (and continue to unfold) against a backdrop of increasing transnational economic interdependence, instantaneous communication, and the rise of social media as a powerful tool for shaping political opinion. They have contributed to the moral certitude of proponents of a global “human rights culture,” and to the rise of a nativist and populist resistance to human rights in states around the world (including many prominent past champions of international human rights law). All of these factors have fuelled an intense debate over the possibility of legitimating international intervention for humanitarian purposes in situations where states are unable or unwilling to act to prevent or alleviate humanitarian catastrophes, or may in fact be the perpetrators of large-scale human rights violations against their own citizens. With the terrorist attack on the World Trade Center in 2001, the focus of this debate shifted to the subsidiary question of whether military intervention in the pursuit of regime change (where it was anticipated that the new regime would be a democratic one) could itself be justified as a form of humanitarian intervention.

This chapter is concerned primarily with the first and more fundamental of these debates, and will grapple with it in the following form: Is it possible to develop a philosophical framework for intervention on humanitarian grounds that is interculturally legitimizable?

Intercultural legitimacy matters for at least two reasons. The first springs from the fact that there has been a growing acknowledgement of the fundamentally situated character of human agency since the mid-twentieth century. The intensification of intercultural contacts that has accompanied the large-scale movements of refugees and immigrants in recent decades has made it apparent to more and more people that each human culture furnishes the universe in different ways. This increasing attention to our situatedness has resulted in a valorization of the uniqueness of specific cultural, gender, and racial standpoints, and to a lesser degree, those associated with class, religion, and physical ableness. This phenomenon is the impulse behind identity politics, the movement that has been largely responsible for the celebration of previously denigrated identities, as evinced, for example, in multiculturalism policies. But identity politics is also the source of the concomitant claim that the legitimacy of social and political judgements depends upon their inclusivity, achieved, at a minimum, via broad consultation with representatives of diversely situated social, cultural, and/or national groups. Such groups will assess the merits of specific public choices with reference to the standards of value arising from their own cultural-linguistic background understandings, among other normative criteria.

As a result of the impact of identity politics, the sense has grown that the legitimacy of governments’ policy agendas depends upon the existence of both a procedure for consulting diversely-situated parties and widespread, substantive agreement that policy is rooted in shared values. And this felt need for process and substantive legitimacy applies increasingly to non-citizens potentially affected by interventionary foreign policy choices, as well. The perceived legitimacy at home of a state’s interventionary actions abroad now depends in part on the existence (or the perception of the existence) of local endorsement among the intended (mostly other-cultural) subjects of the intervention.¹

Further, as has been well-recognized in the burgeoning literature on peacebuilding, it is fundamentally important that civilian and former combatant populations regard the terms of any form of humanitarian aid purportedly undertaken on their behalf—whether military or non-military—as locally legitimate.² In the absence of local legitimacy, efforts to rebuild a country’s physical infrastructure, political and economic structures, and civil society will be seriously and perhaps fatally impeded. As a matter of political and practical necessity then, those who wish to intervene coercively or cooperatively on humanitarian grounds need legitimacy internally and externally in order to gain cooperation and to preserve and enhance the binding power of the international legal order.

These are the observations that inform the following sketch of a philosophical foundation for the responsibility to protect, the approach to intervention on humanitarian grounds first identified by the International Commission on Intervention and State Sovereignty (ICISS).³

The responsibility to protect

ICISS was established to address the problem of reconciling demands for legal recognition of a right of humanitarian intervention with the existing or possible structure of the international legal order. The Commission was created in the wake of the 1999 NATO military intervention in Kosovo, undertaken without Security Council authorization. The illegality of that action at the time it was executed was a source of concern to many of those involved,⁴ and it was the assailability of that intervention’s legitimacy that inspired Lloyd Axworthy, then-minister of Foreign Affairs for the Canadian government, and other international diplomatic and NGO actors to push for the creation of the Commission.

1 See Katarina Tomaševski, Responding to Human Rights Violations, 1946–1999 (The Hague: Martinus Nijhoff, 2000), at chap. 12 for a nuanced discussion of the ambiguous impact of this felt need for normative support.

2 See, e.g., Ian S. Spears, “Debating Secession and the Recognition of New States in Africa” (2004) 13 African Security Review 35; Carrie Manning, “Local Level Challenges to Post-Conflict Peacebuilding” (2003) 10 International Peacekeeping 25.

3 ICISS, The Responsibility to Protect (Ottawa, Canada: International Development Research Centre, 2001).

4 For a counter-argument that the NATO action in Kosovo may have been implicitly authorized by the Security Council via a series of resolutions that pre-dated the intervention, see Christine Gray, “From Unity to Polarization: International Law and the Use of Force against Iraq” (2002) 13 European Journal of International Law (EJIL) 1. Craig Scott provides an alternative attribution of legality to the Kosovo action, that rests on the claim that SC Res. 1244 (1999), which incorporated the terms of the peace settlement between NATO and Yugoslavia in its text, could be viewed as constituting retroactive endorsement of the NATO intervention by the Council (“Interpreting Intervention” (2001) 39 Canadian Yearbook of International Law 333 at 353).

The December 2001 ICISS report introduced two important correctives and one decisive innovation into the intervention debate. First, it abjured an exclusive focus upon military intervention for humanitarian purposes, re-establishing intervention involving the physical crossing of state borders (usually the intended referent of the term “humanitarian intervention”) as one extreme of a spectrum that continues through economic and diplomatic isolation and finally extends to the prosaic and varied efforts to influence that typify the foreign policy practices of all states. The report underscored the importance of regarding military intervention as a last resort that can only be employed in a manner proportionate to the human rights violation or humanitarian crisis in question. Second, the report stressed the priority of the task of preventing humanitarian crises in order to minimize the need for considering coercive intervention. But the report’s main contribution lay in its innovative reconceptualization of the challenge posed to state sovereignty by cross-border intervention.

The ICISS report’s authors argued that states bear primary responsibility for the protection of the people under their care. However, when states fail to make good faith attempts to fulfil this responsibility, it devolves upon the international community of states to protect populations at risk from domestic threats such as severe state repression and collapse, insurgencies, and civil strife. Through these simple premises, ICISS endorses a paradigm shift that sought to change the terms of the debate over intervention and provides a theoretical foundation for focusing upon the human needs of individuals to proponents of intervention on humanitarian grounds. The report’s authors offered a means of escaping the political deadlock associated with efforts to establish an international legal right of intervention by framing the issue of intervention in terms of a responsibility to protect. This conceptual judo aimed to dramatically diminish the apparent relevance of the issue of the sanctity of state sovereignty, essentially by recognizing that sovereignty itself has been redefined in practice.

In performing this reinterpretation of the concept of sovereignty, the ICISS panel acted in accordance with a significant body of legal scholarship that regards the exclusivity and inviolability of sovereignty as legal fictions.⁵ The ICISS report’s advocacy of what might be conceived as a kind of civil law duty to rescue on the part of states relies heavily upon the argument that the legal and political concept of sovereignty has undergone a significant transformation, and that that shift has been insufficiently acknowledged in the interpretation of public international legal instruments. The ICISS report’s authors framed their attempt to document and advocate this redefinition of sovereignty as just one instalment in an ongoing process of evolving reinterpretation. By thematizing this strand of existing practice concerning sovereignty in the context of humanitarian crises, the report sought to influence the jurisgenerative processes of international law formation in this area:

[w]hile there is not yet a sufficiently strong basis to claim the emergence of a new principle of customary international law, growing state and regional organization practice as well as SC [Security Council] precedent suggest an emerging guiding principle—which in the Commission’s view could properly be termed “the responsibility to protect.”⁶

The responsibility to prevent

The ICISS report’s authors described the responsibility to protect as encompassing three constituent elements: 1) the responsibility to prevent humanitarian catastrophes, 2) the responsibility to react to such events when they occur, and 3) the responsibility to rebuild after intervention. This suite of responsibilities is borne primarily by the individual state whose population is at risk, and lies residually with state-members of the international community.⁷ On the Commission’s interpretation, the burden of responsibility on outside states is enhanced and in some circumstances even transferred, when the home-state fails to fulfil its obligation to ensure its population’s human security through incapacity, inaction, or as the perpetrator of policies that threaten to cause an imminent crisis.

5 See, e.g., Nicholas Onuf, “Intervention for the Common Good” in G.M. Lyons and M. Mastanduno, eds., Beyond Westphalia? (Baltimore, MD: Johns Hopkins University Press, 1995) 43; Friedrich Kratochwil, “Sovereignty as Dominium” in G.M. Lyons and M. Mastanduno, eds., Beyond Westphalia? (Baltimore, MD: The Johns Hopkins University Press, 1995) 21; W. Michael Reisman, “Sovereignty and Human Rights in Contemporary International Law” (1990) 84 American Journal of International Law (AJIL) 866 at 867–868.

6 ICISS, Responsibility to Protect, at 15.

7 The “international community” is a contested term. In this book, it refers to entities that participate in decision-making processes that aim to contribute to global governance in some fashion. These can include, for example, NGOs, international organizations, nonstate peoples’ representative organizations, state governments, corporate and hybrid actors involved in transnational governance of matters that would traditionally fall under the rubric of public policy-making (e.g. self-regulation in the forestry and other natural resource sectors). However, because this definition is more encompassing than traditional ones that attribute membership in the international community to states alone (or perhaps to states plus certain international organizations such as the UN and International Monetary Fund), a limiting phrase like the one used above will be employed here to indicate to the reader when one of these more parsimonious definitions is under discussion.

The limited space devoted in the report to discussion of a responsibility to prevent belies its fundamental importance to the argument of the report as a whole. ICISS took its inspiration for the discussion of “root cause” prevention efforts from Article 55 of the UN Charter, which recognizes that “the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations” requires solutions to international economic, social, and health problems, cooperation in international, cultural, and educational affairs, and universal respect for human rights.⁸ By adopting a broad definiti...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Abbreviations and acronyms
• Introduction
• 1. A philosophical underpinning for a state’s “responsibility to protect”
• 2. The role of a sensus communis in a theory of judgement
• 3. Human security and Hannah Arendt’s “right to have rights”
• 4. The scope of the “responsibility to prevent” atrocity crimes: A remit for intervention?
• 5. The international legal character of the responsibility to protect
• 6. Distant strangers and our responsibility to protect
• Bibliography
• Index