Responsibility to Protect

Alex J. Bellamy

• Publisher: Polity
• Year: 2013
• ISBN:
  9780745658551
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

At the 2005 UN World Summit, world leaders endorsed the international principle of Responsibility to Protect (R2P), acknowledging that they had a responsibility to protect their citizens from genocide and mass atrocities and pledging to act in cases where governments manifestly failed in their responsibility. This marked a significant turning point in attitudes towards the protection of citizens worldwide.

This important new book charts the emergence of this principle, from its origins in a doctrine of sovereignty as responsibility, through debates about the legitimacy of humanitarian intervention and the findings of a prominent international commission, and finally through the long and hard negotiations that preceded the 2005 commitment. It explores how world leaders came to acknowledge that sovereign rights entailed fundamental responsibilities and what that acknowledgment actually means. The book goes on to analyze in detail the ways in which R2P can contribute to the global effort to end genocide and mass atrocities. Focusing on the prevention of these crimes and the improvement of the world's reaction to them, the book explores the question of how to build sustainable peace in their aftermath. Alex J. Bellamy argues that although 2005 marked an important watershed, much more work is needed to defend R2P from those who would walk away from their commitments and – in the words of UN Secretary-General Ban Ki-moon – to translate the principle 'from words into deeds'.

This fascinating book will appeal to students and scholars of international relations, international affairs, human rights and humanitarian emergencies, as well as anyone concerned about the protection of civilians on a global scale

1

Sovereignty and Human Rights

Sovereignty Versus Human Rights

Questions about preventing, reacting to and rebuilding after man-made catastrophes tend to be framed around an enduring struggle between sovereignty and human rights. By this account, sovereignty refers to the rights that states enjoy to territorial integrity, political independence and non-intervention, whilst human rights refer to the idea that individuals ought to enjoy certain fundamental freedoms by virtue of their humanity. Where sovereign states are either unwilling or unable to protect the fundamental freedoms of their citizens, sovereignty and human rights come into conflict.

This tension is evident in the UN Charter itself.¹ When it came to designing the post-war order, the horrors of the Second World War produced a contradictory response from world leaders. Three concerns pulled them in different directions. First, there was a strong impetus for the outlawing of war as an instrument of policy. Thus Article 2(4) of the UN Charter forbade the threat or use of force in international politics, with only two exceptions: each state’s inherent right to self-defence (Article 51) and collective measures authorised by the UN Security Council (Chapter VII of the UN Charter). The second concern was the emergence of the idea that peoples had a right to govern themselves. This gave impetus to the process of decolonisation, which proceeded apace in the post-war era. How, though, would these new states be protected from the interference of great powers in their domestic affairs? The UN Charter’s answer to this question came in the form of a commitment to ‘mutual respect for sovereignty’, the blanket ban on force mentioned earlier, and Article 2(7) prohibiting the UN from interfering ‘in matters essentially within the domestic jurisdiction of states’.

The third concern was in large part a reaction to the Holocaust and the Second World War’s many other horrors. Evidence of the depths to which humanity could sink persuaded the UN Charter’s authors that aspirations for human rights had to be placed at the heart of the new order. But how might different conceptions of human rights be reconciled without undermining the UN’s other ambitions? The tension this problem created is evident in the preamble to the UN Charter, in which the members promise to ‘reaffirm faith in fundamental human rights, in the dignity and worth of the human person’, while also promising to ‘practice tolerance and live together in peace with one another as good neighbours’. This set in train a critically important political dilemma: how should states behave in cases where maintaining faith in human rights meant refusing to be a good neighbour to genocidal and tyrannical states? Influenced by this tension, for the past sixty years debates about the relationship between sovereignty and human rights and the legitimacy of humanitarian intervention have boiled down to a single core question: should sovereignty and the basic order it brings to world politics be privileged over the rights of individuals, or should it be overridden in certain cases, so as to permit intervention for the purpose of protecting those fundamental rights?

There are good reasons for thinking that this tension goes to the very heart of international order, not least because those who argue against collective action aimed at reaffirming faith in fundamental human rights invoke sovereignty to support their case. Thus in 1977, when Vietnam invaded Cambodia and ousted the murderous Pol Pot regime, responsible for the death of some two million Cambodians, this state was widely condemned for violating Cambodian sovereignty. China’s representative at the UN described Vietnam’s act as a ‘great mockery of and insult to the United Nations and its member states’ and sponsored a resolution condemning Vietnam’s ‘aggression’. The United States agreed. Its ambassador argued that the world could not allow Vietnam’s violation of Cambodian sovereignty to ‘pass in silence’, as this ‘will only encourage Governments in other parts of the world to conclude that there are no norms, no standards, no restraints’.² France argued that ‘the notion that, because a regime is detestable, foreign intervention is justified and forcible overthrow is legitimate is extremely dangerous. That could ultimately jeopardize the very maintenance of law and order.’ Norway (among others) agreed, admitting that it had ‘strong objections to the serious violation of human rights committed by the Pol Pot government. However, the domestic policies of that government cannot – we repeat cannot – justify the action of Viet Nam.’³

More recently, in 2004, Pakistan argued against collective action in order to halt the mass killing and expulsion of civilians in Darfur sponsored by the Sudanese government on the grounds that ‘the Sudan has all the rights and privileges incumbent under the United Nations Charter, including to sovereignty, political independence, unity and territorial integrity’.⁴ Nowadays, Western commentators sometimes put these sorts of arguments down to political posturing by recalcitrant states who invariably have their own human rights problems. But these arguments are still sometimes used by liberal states themselves. For example, in a March 2005 Security Council debate on whether to refer alleged crimes in Darfur to the International Criminal Court (ICC), the US representative argued that the court ‘strikes at the essence of the nature of sovereignty’ by purportedly sitting in judgement over the conduct of a state’s internal affairs.⁵

At first glance, therefore, by insisting that sovereignty and fundamental human rights need not be antagonistic, the R2P stands at odds with what seems to be the main debate on how to respond best to humanitarian emergencies and on the legitimacy of such responses: namely the question whether sovereignty or human rights should be privileged. On closer inspection, however, there are four anomalies that this way of thinking about the problem cannot accommodate – which suggests the need to think differently about the relationship between sovereignty and human rights.

Sovereignty no barrier to intervention

Simon Chesterman has demonstrated that sovereignty has not in fact inhibited unilateral or collective intervention to protect fundamental human rights in other countries. Chesterman’s argument was a response to lawyers who have engaged in the ‘sovereignty versus human rights’ dilemma by arguing that, in order to short-circuit the struggle and enable human rights to prevail, there ought to be a legal exception to the non-intervention rule in cases of gross human rights abuse. In response to this position, Chesterman argued that ‘implicit in many of the arguments for a right of humanitarian intervention is the suggestion that the present normative order is preventing interventions that should take place. This is simply not true. Interventions do not take place because states do not want them to take place.’⁶ From this point of view, it was not concerns about sovereignty that prevented timely intervention in Darfur or Rwanda, but rather the basic political fact that no state wanted to risk its own troops to save strangers.

What, though, of Vietnam’s invasion of Cambodia? Was it not the case that Vietnam paid a heavy political and economic price because it was seen as violating Cambodia’s sovereignty? If this is so, could it not be argued that violating sovereignty imposes inhibitive costs on the one who intervenes, acting as a potential deterrent to others? This position certainly has merit but needs to be viewed alongside two other considerations. First, Vietnam was not principally motivated by humanitarian concerns, nor did it justify its invasion as a humanitarian intervention. Second, and perhaps more importantly, we need to take the arguments levelled against Vietnam with a pinch of salt. Whilst not denying the fact that many states, particularly some members of the Non-Aligned Movement, opposed Vietnam on principled grounds, political considerations unrelated to sovereignty or human rights played an important part in shaping the way international society reacted to the Vietnamese intervention.⁷ In the same year as Vietnam’s invasion of Cambodia, Tanzania – a highly regarded state with a wellrespected President, Julius Nyerere – invaded Uganda and deposed Idi Amin with barely a ripple of international condemnation. The vast difference between the way the world reacted to Vietnam and the way it reacted to Tanzania suggests that sovereignty was indeed doing less work than Realpolitik in shaping international reactions.

Sovereignty as a human right

The second set of issues surrounds the principle of sovereignty itself. This is a matter I will return to later in this chapter, so there is no need to labour the point here. At issue is the apparent disconnection between the idea that sovereignty stands in opposition to human rights and the fact that sovereignty is often claimed in the name of human rights. Typically, sovereignty claimed in the name of human rights is labelled ‘popular sovereignty’. This manner of thinking about sovereignty began in earnest with the American and French Revolutions, in which the revolutionaries justified the violent overthrow of monarchs on the grounds that sovereignty derives from the people. In other words, sovereignty is based upon the people’s right to choose their own form of government which is, in turn, grounded in the fundamental human right to liberty.⁸

Popular sovereignty lay at the heart of the decolonisation movement and emerged after the Second World War as the only means of legitimising government. That is, in order to win international recognition, states in the post-war era were obliged to demonstrate that they governed with the will of the people. Those which were patently unable to do so lost legitimacy and recognition. Thus in less than a decade colonialism was transformed from the world’s most widespread form of governance into a moral pariah, on the grounds that it was wrong to deny people their right to govern themselves. Measures taken again apartheid South Africa were justified on precisely these grounds: as a racially based minority government, the South African government could not claim to represent the will of the people. Of course, the ascendancy of popular sovereignty raises as many questions as it answers. In particular, who are ‘the people’ supposed to be entitled to selfgovernment and how is their ‘will’ to be ascertained? Democrats, communists, monarchists, Islamists and nationalists all have different answers to these questions, which is why we have different forms of government and disputes about the relationship between state rights and human rights. What is significant, however, is the post-1945 consensus that it is up to the people to determine their own form of government. Whichever logic is applied, ultimately this principle of consent is grounded in some conception of human rights.⁹ Thus, the idea that sovereignty and human rights are locked in battle with one another makes little sense if one acknowledges the place of human rights in sustaining and legitimising sovereignty claims.

The limits of absolutism

The third issue looks at the problem from the opposite direction. Seeing sovereignty as a barrier to collective measures to protect fundamental human rights implies that sovereigns are entitled to act however they please within their own jurisdictions. This is commonly labelled ‘absolutism’ and was put forward most robustly by nineteenth-century German philosophers and scholars such as Hegel, Fichte, Ihering, Treitschke and Heller. Ihering maintained that sovereigns were limited only by their own will, whilst Treitschke argued that it was legitimate for a state to do anything at all to satisfy its interests and that these interests took priority over contractual obligations.¹⁰ For the German absolutists, sovereignty implied not just the absence of a superior authority but also competence to the full reach of its material power. As a nineteenth-century French jurist, Fauchille, put it, ‘to say a person is sovereign means not merely to say that he does not recognise any authority above his own, but that he may issue orders at his own discretion, that he may do freely and without limitation all that he considers fit to do’.¹¹ Historically, however, this vision of sovereignty has tended not to win support from the society of states. To illustrate this point, I will use two brief examples from the era of supposed sovereign absolutism.

To justify his decision to invade Belgium in 1914, violating its neutrality, which was guaranteed by international treaty, the German Chancellor von Bethmann-Hollweg argued that ‘necessity knows no law’; that as a sovereign state Germany was entitled to take whatever measures it deemed necessary to protect itself.¹² This claim was widely rejected by international society and given as grounds for war by Britain. Coleman Phillipson, a London barrister, insisted that absolutist arguments can never ‘convince men who possess reason and self respect that the rights and obligations established by solemn treaties can be destroyed at the pleasure of one contracting party’.¹³ Likewise, British Prime Minister Lloyd George argued that Germany’s repudiation of Belgian neutrality ‘goes under the root of all public law. It is the straight road to barbarism.’¹⁴ The point here is that Germany’s attempt to claim a sovereign right to act as it pleased in relation to Belgian neutrality was rejected by Britain on the grounds that a sovereign was not entitled to repudiate international law.

But are sovereigns entitled to act as they please in their domestic affairs? Between 1880 and 1907, King Leopold of Belgium used terror to run his personal empire in the Congo as a profit-making entity. Most estimates agree that during this period Congo’s population was halved from twenty million to ten million as a result of killings, forced labour, mass displacement and disease.¹⁵ Under the 1884 Treaty of Berlin, Leopold was recognised as Congo’s personal sovereign, which makes this a particularly apt case to test the scope of sovereignty. Leopold claimed to be an absolutist sovereign, arguing that ‘the Congo has been and could have been nothing but a personal effort. There is no more legitimate or respectable right than that of an author over his own work, the product of his own labour . . . My rights over the Congo are to be shared with none; they are the fruit of my own struggles and expenditures.’¹⁶ However, the Congo Free State was widely criticised and, after a sustained campaign of pressure by the British government which was supported by Germany and reluctantly by France, Leopold was forced to transfer sovereignty over the Congo Free State to Belgium.¹⁷ Although painfully slow, ultimately the great powers pressured Belgium into removing Leopold’s sovereignty.

What these two examples demonstrate is that, even in the period when the absolutist conception of sovereignty was advocated most strongly, these ideas did not win much support. Indeed, in both cases the advocates of absolutism eventually confronted coalitions of states determined to defend the idea that sovereigns have responsibilities both to each other and to their own people.

Sovereignty and non-intervention

The fourth concern relates to the relationship between sovereignty and non-intervention. The belief that sovereignty and human rights are fundamentally opposed to each other is based on the view that the principal duty owed to sovereigns is non-intervention. Human rights challenge sovereignty when they are used as a vehicle for outsiders to interfere in the sovereign’s domestic affairs. But are sovereignty and non-intervention necessarily two sides of the same coin? The belief that they are is widespread. According to Hedley Bull, i...

Table of contents

• Cover
• Half Page
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgements
• Abbreviations
• Introduction
• Chapter 1: Sovereignty and Human Rights
• Chapter 2: The International Commission on Intervention and State Sovereignty
• Chapter 3: The 2005 World Summit
• Chapter 4: Prevention
• Chapter 5: Reaction
• Chapter 6: Rebuilding
• Conclusion
• Notes
• Bibliography
• Index