The Relationship between Human Security Discourse and International Law

A Principled Approach

Shireen Daft

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351985659
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The concept of human security has emerged in international relations and policy as an idea which not only seeks to relocate the focus of international society on the individual, but also challenges the current priorities of the international community. In particular it places emphasis on promoting and facilitating a nexus between security, development and human rights. It is potentially a paradigm in the making, gaining considerable momentum within the UN, international relations scholarship and regional bodies. And yet by-and-large it continues to be unexplored by the international legal community, despite the success of a number of international treaties being attributed to the discourse.

This book seeks to address this gap, and establish the nature of the relationship between human security discourse and international law, determining whether human security can meaningfully contribute to the international legal framework. To determine this, the book analyses the core principles of human security discourse and examines the degree to which they find parallels in the existing normative structure of international law. The book examines the how the broad-narrow debate that dominates human security discourse has played out in international law-making. It goes on to consider the processes for the creation of so called 'human security' treaties in order to determine a blueprint for future development of international human security treaty law. In concluding Shireen Daft sets out a structured principled approach through which international legal scholarship can engage with human security, highlighting the ways in which engagement between the two fields can be sustained.

1 The emergence of human security

The broadening and deepening of the security paradigm

Securitatem nunc appello vacuitatem aegritudinis, in qua vita beata posita est. – Cicero¹

I Introduction

‘Security’ is a notion that lies at the heart of international relations, the role of the state and the role of law. It is also a concept that is more easily instinctively understood than capable of being encapsulated neatly by an academic definition. The word security is derived from the Latin securitas which means literally ‘without care’.² This provides only a limited answer, however, to what security in fact is, and opens the door to a series of further questions: freedom from care for whom? What sort of cares? Security by what means, and at what cost? These questions form the structure of the security problematique.

Despite this range of questions that need to be addressed, it is only since the 1980s that the concept of security has been problematised. Before that time, security was treated, as Booth points out, as ‘one of those common-sense, pre-defined terms in international relations orthodoxy that appear unproblematic until examined with a critical eye.’³ The dominance of realism as a school of thought in international relations was so prominent during the Cold War that not only did it form the orthodoxy of security studies, but ontological questions about security went largely ignored between the 1940s and the 1990s.⁴ Der Derian summarises the issue well:

we have inherited an ontotheology of security, that is, an a priori argument that proves the existence and necessity of only one form of security because there currently happens to be a widespread, metaphysical belief in it.⁵

This chapter will explore the development of the concept of security as framed in international relations and security studies, and establish the context in which human security has emerged and been utilised. It will explore what ‘security’ means and how human security fits into this broader ontological discussion. It is important to appreciate human security within the context of security studies, and realism in particular, for a number of reasons. One, the transformative potential of human security and the need for a shifting paradigm can only be appreciated by analysis of the failings and fallacies existent in the traditional paradigm. Further, while realism no longer holds the same level of hegemony over security discourse that it once did, it remains the dominant school of thought in international relations, and as such this must be taken into account when examining the critiques of human security. This chapter traces the emergence of human security within the broader enterprises of security studies, and within the scope of international legal and policy documents.

II Traditional conceptions of security

According to realist thought,⁶ security is a state-centric concept that rests on a state taking any action necessary to ensure its survival, power and political influence when confronted by external threats, specifically military threats from other states.⁷ This realist view of security of course presupposes the backdrop of the realist perception of international relations in general. According to Mearsheimer, realism rests on five assumptions about how the world works.⁸ The first is the anarchy of the international system, resulting from the lack of central supra-national authority and the exclusivity of sovereignty to states. The second assumption is a focus on the military power of states, based on the belief that they are inherently dangerous to each other. Furthermore, in realist theory war is treated as a legitimate instrument of international politics, in the tradition of Clausewitz.⁹ Thirdly, there is inevitable uncertainty in the international system as states cannot trust each other and their intentions. Even where intentions are good, they can change swiftly and so uncertainty must be ever-present. Fourth, the basic motivating factor of all states is survival. Finally, all activities of a state taken in the international realm are strategically oriented and concerned with ensuring the state’s survival. Thus the security paradigm that emerges from realist thought is an idea that is centred firmly on states as the referent object of security, and one that presumes the legitimacy and perpetual threat of war and insecurity. Security becomes largely synonymous with power.

International security (or insecurity) then is largely defined by the ‘security dilemma’ that emerges as a result of states ensuring their own security.¹⁰ The security dilemma refers to the paradox that emerges from this traditional conceptualisation of security. When states protect themselves via the accumulation of power this inevitably places them in perpetual competition with each other. One state’s security, therefore, comes at the cost of the security of other states – ‘each state must guarantee its own survival since no other will provide its security’.¹¹ The previously mentioned anarchical situation of states maximising their power at the expense of others is averted only by a balance of power, that is, the mutual interest of the most powerful states in maintaining the status quo. The bipolar power structure witnessed during the Cold War is thus deemed to provide relative stability, and a more sustainable sense of peace and security, one that rests on international cooperation, is viewed as unrealistic and unachievable. International cooperation, while not impossible, is thought under this model to have distinct limits, as international relations are ‘constrained by the dominating logic of security competition, which no amount of cooperation can eliminate.’¹²

There are a number of implications that emerge from the realist paradigm of security. The first is that ‘security’ essentially becomes a negative value. Rather than being something meaningful in itself, security under this paradigm is essentially merely the absence of insecurity.¹³ Thus under the realist approach, ‘[a] nation has security when it does not have to sacrifice its legitimate interests to avoid war and is able, if challenged, to maintain them by war.’¹⁴ With its strong focus on military threats, the realist construction of security ignores other threats to the security of people within the state. By ignoring other forms of threat, this narrow view of security, as Ullman correctly points out, ultimately reduces the total security of the state.¹⁵ He takes this a step further and asserts that this framework also increases global insecurity, as it leads to ever-increasing militarisation of international relations which is inevitably harmful to the global community in the long run.¹⁶

This traditional notion of security is almost entirely dependent on the endurance of the Westphalian state system, and as Burgess points out, rests on the idea of states providing unconditional protection to their citizenry, presupposing a ‘rarefied, even idealised, notion of the state’.¹⁷ Wyn-Jones goes further, arguing that a ‘fetishization of the state’¹⁸ lies at the root of traditional approaches to security. Such a fetishisation privileges the state as the object to be protected and presumes the intrinsic value of the state. However, focus on national security in a way that idealises the state and ignores the citizens within discounts the philosophical construction of the state itself. As Surin Pitsuwan, Secretary-General of ASEAN observes, the classic social contract theories were based on the idea that people give up their autonomy to join the collectivity of the state for the express purpose of their protection or, put another way, their individual security.¹⁹ Burke describes the solemn pledge between citizens and political leaders to the effect that ‘their people’s security is “the first duty”, the overriding goal of domestic and international policy making.’²⁰ Thus while the construction of human security as it exists today is innovative and potentially transformative, it is rooted in older, fundamental ideas of human interaction and the role of the state.

The fetishised national security approach is clearly closely aligned to a Hobbesian view of the world, the state and sovereignty. The justification of the realist view of the state is made clear in the work of Hans Morgenthau, one of the leading figures of the realist movement:

The nation state is to a higher degree than ever before the predominant source of the individual’s moral and legal valuations and the ultimate point of reference for his secular loyalties. Consequently, its power among the other nations and the preservation of its sovereignty are the individual’s foremost concern in international affairs.²¹

Given the centrality of the state to people’s lives, according to Morgenthau, the interests of the state should be prioritised by the individuals within that state. Nef finds irony in this realist world view, with its over-attention to the state, as this results in the actual threats to individuals being eclipsed and ignored.²² Hayden frames the issue slightly differently, stating that the history of state security demonstrates a prioritisation of this traditional conception of security over the concept of peace.²³ From an international legal perspective, it is easy to trace this same dichotomy and emphasis on state sovereignty.

For Hobbes, the great champion for the cause of state sovereignty, the role of sovereignty is tied to the ability of the sovereign to protect his or her people, with ‘the safety of the people as the supreme law’.²⁴ State sovereignty could only be justified by the continuing protection of the people:

The obligations of subjects to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them.²⁵

Thus, even for Hobbes, sovereignty is to be equated with responsibility rather than privilege or intrinsic value in and of itself. As Wæver puts it, ‘[t]he right of the individual to self-preservation is the starting point of Hobbes’ Leviathan argument. The ultimate meaning and measure of security is individual security, but it is procured through vesting authority in the state.’²⁶ The notion of sovereignty as responsibility²⁷ rests on premises of moral legitimacy for authority and the operation of law and politics, and is found in a diverse range of scholars’ (including jurists’) reasoning, from Grotius to Hobbes to Lon Fuller, to name but a few. Grotius, writing in 1625, placed an automatic limit on sovereignty:

The kingdom is forfeited if a king sets out with a truly hostile intent to destroy a whole people … for the will to govern and the will to destroy cannot coexist in the same person.²⁸

The reliance on an over-simplified Hobbesian construction of the state and security in realist thought also ignores the role of liberalism in political and legal philosophy in the years since Hobbes wrote the Leviathan. Kant’s pursuit for ‘Perpetual Peace’ in particular has a resonance that rejects realism’s account and is consistent with the idea of human security.²⁹ K...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of abbreviations
• Acknowledgments
• The relationship between human security discourse and international law: an introduction
• 1. The emergence of human security: the broadening and deepening of the security paradigm
• 2. The security problematique and the transformative potential of human security discourse
• 3. The resistance of international legal scholarship to human security discourse: an examination
• 4. The intersection of human security discourse and international law: in search of principles
• 5. Human security discourse: an ‘authoritative interpretation’ of the UN Charter?
• 6. International law-making and a human security template
• 7. ‘Human security treaties’ so-called: an examination of the content of human security discourse in international treaties
• 8. Conclusion – the relationship between human security discourse and international law: the time for engagement
• Bibliography
• Index