RIGHTS IN WORLD POLITICS - THE LESSONS OF A RESPONSIBILITY TO PROTECT
We are bombarded daily with talk about human rights: Should Australia
have a bill of rights? Is gay marriage a human rights issue? Does
Australia's policy on asylum seekers put us in breach of our international
human rights obligations? Clearly, the concept of human rights engages
with a broad spectrum of public policy. My concern today is with the
issue of international human rights policy, and my special focus is
the doctrine of a Responsibility to Protect (RtoP). There are
good grounds for focusing on RtoP. In many ways, RtoP is the culmination
of an international human rights process that has its origins in the
horrors of World War ll and the world's response to those horrors.
As well, the doctrine of RtoP has immense contemporary relevance:
it was a key factor in the dialogue about what the international community
should do about the ongoing crises in Libya and Syria. Finally, as
the wrangling about the appropriate response to those crises indicates,
political and other problems continue to dog the implementation of
R2P, just as they did it's precursor, humanitarian intervention (HI).
This is a salutary reminder of the immense difficulties attaching
to the global promotion of human rights more generally.
The Nature and Origins of Human Rights
We normally understand human rights to be those rights we enjoy because
we are human. Hedley Bull has an elegant description: "Human
rights are rights attaching to human beings as such, rather than to
this or that class of human beings. They are thought to be enjoyed
by all human beings, to be enjoyed by human beings only and to be
enjoyed by them equally" (Bull 1979, p. 79). They are rights
that are understood to exist "prior to and independently of any
given political system" and are regarded as inalienable in the
sense that they can neither taken away nor conferred by society (Chris
Brown 1999, p.106). As Chris Brown goes on the say, the moral standards
on which these rights are based "are general, which is to say
that they are not limited in application to the inhabitants of any
particular jurisdiction or legal system, or to any race, creed or
civilization" (ibid). Finally, "because all persons everywhere
share that which makes us human, the rights that belong to us naturally
are also universal" (Hayden 2001, p.5).
The idea of human rights
is invariably linked to the work of the United Nations, but the concept
was in existence long before the emergence of that organization in
1945. Human rights are usually viewed as a product of the natural
law tradition of the seventeenth and eighteenth centuries, a tradition
which in turn is grounded in ancient Greek philosophy, Judeo-Christian
scripture, and Roman moral and legal thought. The natural law tradition,
with its emphasis on reason was an important element in Enlightenment
thinking - evident, for instance - in Locke's doctrine of natural
rights. The ideas figure prominently in the French Declaration
of the Rights of Man and of the Citizen (1789) and the American Declaration
of Independence (1776)(Bull 1979, p.80), and were central to the political
thinking of nineteenth and twentieth century liberalism with its emphasis
on individual rights. (Chris Brown 1999, p. 104).
of Human Rights - A New Idea
Though the concept of
human rights is not new, the idea that these rights should be protected
internationally certainly is. Once, human rights were almost always
associated with domestic legal and political structures but more recently
a complex network of international law and practice has grown up around
the idea that individuals everywhere possess rights by virtue of their
being human. A major stimulus for this new international focus was
World War ll - and more specifically, the Holocaust. As Ian Clarke
While all wars are destructive and tend to give rise in their
aftermath to a profound questioning of social institutions, the
Second World War was distinctive in the sheer scale of the human,
and often civilian, suffering which it had inflicted. Unparalleled
levels of human cruelty, and acts of wanton genocide, in turn
gave rise to a reaffirmation of cosmopolitan human values, now
to be more firmly codified as principles of human rights thought
applicable to all mankind: here was a globalization of human value
systems without historical precedent. (Clarke 1997, p. 112).
The stimulus of World
War ll was initially apparent in the Atlantic Charter of 1941, and
after the war in the war crimes tribunals in Nuremberg, Tokyo and
elsewhere, the Universal Declaration of Human Rights (1948), the Genocide
convention (1948) and the Refugee convention (1951). But over time,
as the global human rights regime evolved, other influences were apparent:
the decolonization movement which commenced in the 1940s; the more
recent world-wide women's movement; and, the globalization process,
which was resurrected by the political and economic reforms of the
immediate post-war years and which took-off in earnest in the mid-1970s.
In addition to the reforms already mentioned, other important features
of the contemporary human rights regime include: the 1966 covenants
on Civil and Political rights, and on Economic, Social and Cultural
rights; the convention on the elimination of racial discrimination
(1965); the convention on the elimination of discrimination against
women (1981); the convention on the rights of the child (1984); the
International Criminal Court (ICC) (2002); and, the Doctrine of a
Responsibility to Protect (2007). These, along with other instruments,
add up to a substantial body of international law in the human rights
area - what is commonly referred to as the international human rights
It is revealing to note that disagreement about what constitutes human
rights was apparent in 1948 when the UN General Assembly voted to
ratify the Universal Declaration of Human Rights. There were eight
abstentions on that vote. South Africa was opposed to the idea of
racial and political equality; the Soviet bloc states were also not
happy with the endorsement of political freedom, but chose to abstain
because the Declaration did not emphasize economic rights sufficiently;
Saudi Arabia abstained because the Declaration implied that people
had the right to quit the religion into which they were born. This
should remind us that, from the very beginning, disagreements about
the relative importance of political, economic and cultural rights
have been part of the international human rights story.
These early disagreements should also remind us of the ever-present
philosophical dimension in the dialogue about human rights. On the
one hand there are those who adhere to what is commonly known as the
communitarian position, a view that figures prominently in the work
of Michael Walzer (1995). It is one that regards the "local",
or the community, as the source of legitimacy. It is the community
alone that has the right to sort out its own problem.This places great
emphasis on the community itself and the importance to that community
of its shared history. Moreover, it is one that argues that the values
of the community should be respected by outsiders. This communitarian
argument draws on the idea of J. S. Mill that the best way for a community
to achieve autonomy and freedom is through the "arduous struggle
of self-help" (Smith 2001).
Michael Smith makes the point that ethical arguments against intervention
"slide almost imperceptibly into prudential claims about order"
(2001, p. 491). And this, in turn, is a reminder of the relevance
of one of key debates in international political theory, that about
the relative importance to be accorded order and justice in international
relations. Non-interventionists are at pains to point out that whatever
order we enjoy in the world rests on respect for sovereignty and that
we endanger this at our peril through practices like humanitarian
The communitarian position is challenged by what is known as the cosmopolitan
or universalist argument. It argues that because rights are "human"
and "universal", the international community as a whole
has rights and obligations including those impelling outsiders to
intervene to stop human rights abuse. The elimination of Apartheid
in South Africa, it is argued, wasn't just a product of internal activism
but was also helped by outside interference in the way of sanctions
and other pressures. (ibid). This is not the place to argue the relative
merits of the communitarian and cosmopolitan positions. Suffice it
to say that the international human rights regime that has evolved
since World War ll reflects a growing acceptance of the cosmopolitan
Human rights and Humanitarian Intervention
Emblazoned across the memorial at the concentration camp in Dachau
are the words "never again". And surely this was the intention
of the human rights movement inspired by the horrors of World War
ll. But regrettably, mass killing did happen again: in Cambodia under
the Khmer Rouge; in Idi Amin's Uganda; and in the agonies that accompanied
the creation of Bangladesh. These examples may not be as familiar
to us as the more recent ones in Iraq, Somalia, Rwanda, Bosnia, Kosovo,
East Timor, Darfur, and arguably, now in Syria. Part of the reason
they are familiar to us is the "CNN" effect: the way in
which the contemporary media confronts us with "real time"
images of massive human rights abuse and, in turn, provokes calls
for "something to be done" to stop the horrors. The Canadian
political scientist, Michael Ignatieff, has labeled this phenomenon
"the seduction of moral disgust".
Humanitarian intervention (HI) has been a feature of world politics
in the last 30 to 40. It describes a situation where a state, or a
group of states, or the UN, intervenes in one of the countries of
the world in order to protect the human rights of people in that country.
But humanitarian intervention has always been a contested practice,
primarily because it contravenes traditional understandings of sovereignty.
Members of the United Nations have promised to reaffirm faith in human
rights, but they have also promised to "practice tolerance and
live together in peace with one another as good neighbours".
But what if coexistence and "living together in peace" amounts
to indifference towards human rights abuse in an adjoining state?
As Alex Bellamy has argued, there is a tension here and it boils 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?" (2009, p. 9). It was in order to resolve this tension
that the international community has come up with the doctrine of
"A Responsibility to Protect" (RtoP). Assessing the effectiveness
of R2P is one of the major aims of this paper.
There is not time here to cover all of the examples of humanitarian
intervention, but some definitely warrant mention: the enforcement
of a "no fly zone" in Iraq at the end of Gulf War One in
1991; the US and UN interventions in Somalia to ease starvation caused
by civil war in that country in 1993/3; the NATO intervention against
Serbia in 1999 ostensibly to protect Albanians from oppression in
Kosovo; the Australian led intervention in Timor in 1999 to stop the
carnage there after the vote to secede from Indonesia; the UN endorsed,
but African Union led, intervention to curb rampaging militias in
Sudan in 2007. These and other such examples vary in many important
respects - some were endorsed by the UN and some were not, and some
had the approval of the host state and others didn't. But they have
this in common: they are cases where sovereign states have been intruded
upon by other states ostensibly for the purpose of protecting human
rights. One event worthy of special mention is what was labeled the
"Rwandan Genocide": in this central African state in 1993
it is reckoned that up to 800,000 people died in four months of blood-letting
between rival Hutu and Tutsi militias. What was significant about
the event was the failure of the international community to agree
on a response in time to stop the killing. It was an omission that
played a big part in the search for a more prompt, effective and legal
response to such tragedies.
There were always two fundamental problems with humanitarian intervention
- the legal and the political. The first derives from the fact that
there is no basis in international law for humanitarian intervention.
International law has always been highly protective of sovereignty
and under the UN Charter force is only legitimate if it is used in
self-defence or is approved by the Security Council in situations
where that body deems there is a "threat to the peace".
This rules out intervention in a sovereign state ostensibly to protect
the human rights of citizens in that state. Where the Security Council
has backed intervention on humanitarian grounds it has done so by
recourse to a stretched understanding of what constitutes a "threat
to the peace", for example, by arguing that abuses like ethnic
cleansing give rise to massive cross-border refugee movements and
that this constitutes an "international" problem. The second
difficulty with humanitarian intervention - the political - is probably
more basic than the legal. Intervention is a serious business and
states will not support it unless it is in their interests to do so.
This has led to inconsistencies - intervention in Kosovo and East
Timor, but not in Rwanda - a development that has bred skepticism
about humanitarian intervention. An important element in all this
is the need, especially important in democratic states, for domestic
political support: in 1993, in the wake of a public outcry over the
deaths of eighteen marines in Mogadishu, Bill Clinton was quick to
extract US forces from the rescue mission in Somalia.
A Responsibility to
Reflecting in 1999 on Kosovo, where NATO acted but without UN approval,
and on Rwanda, where no one acted, Kofi Annan had this to say about
the dilemma confronting humanitarian intervention:
legitimate for a regional organization to use force without a
UN mandate? On the other, is it permissible to let gross and systematic
violation of human rights, with grave humanitarian consequences,
continue unchecked? (Economist, September 18, 1999, p. 49)
Agitation by the Secretary
General and others led to the creation in 2001 of the International
Commission on Intervention and State Sovereignty (ICISS) - former
Australian foreign minister, Gareth Evans, being one of the co-chairs.
A report by the ICISS influenced statements on the protection of populations
that were adopted by the UN General Assembly in 2005 and reaffirmed
by the Security Council the following year. Thus the doctrine of A
Responsibility to Protect (RtoP) was born.
The core of RtoP is that states have a responsibility to protect their
citizens from genocide, war crimes, ethnic cleansing and crimes against
humanity, and that if they don't, the international community has
a responsibility to intervene - if necessary, by military means. Sovereignty
is thus redefined as "sovereignty as responsibility", and
the implication is that if states renege on this responsibility, then
there are legal grounds for UN approved intervention.
The doctrine of the RtoP has been greeted with much fanfare: hailed
as revolutionary by some and indicating the emergence of a new norm
in international politics. But these claims seem premature. With regards
to the legal dimensions of the issue, the outcome seems mixed to say
the least. As mentioned already, the Security Council, in exercising
its right under Chapter Vll to authorize the use of force, has been
in the practice of stretching the meaning of what constitutes a threat
to international peace and security. The stipulation in RtoP that
the Security Council might authorize the use of force to protect populations
from war crimes, crimes against humanity, ethnic cleansing and genocide
could be seen as a continuation of this "stretching" tradition.
On the other hand, it might be interpreted as limiting the grounds
on which the Security Council might argue that there has been a breach
or threat to international peace and security: in the past, such grounds
have included interference with the delivery of humanitarian supplies
(Former Yugoslavia, Somalia); violations of cease-fires (Liberia,
Cambodia); and, coups against democratic governments (Haiti). (Doyle,
p.83, quoting Damrosch).
But in an important sense, a lot of this is beside the point. RtoP
was adopted as a resolution of the UN General Assembly and in no way
amounts to an international treaty, covenant or convention. Consequently
even those states who voted for the resolution are not legally bound
by its requirements. As Michael Doyle says, RtoP is "not legislative"
(Doyle 2011, p.82). As well, RtoP does not amount to a formal amendment
of Chapter Vll: technically, the Security Council is still only empowered
to authorize a military response in the event of a threat to international
peace and security. Consequently, there remains no established legal
basis for intervention to protect peoples from genocide, ethnic cleansing,
war crimes and crimes against humanity. Finally, it needs to be noted
that these abuses are already forbidden under international law and
that consequently RtoP does not seem to have advanced us very far.
The issue, surely, is not one of identifying what constitutes horrendous
human rights abuse, but rather, whether and how measures to counter
such atrocities can be enforced internationally.
If the legal foundations of RtoP are shaky, the political hurdles
provide further grounds for skepticism. By reaffirming the UN Security
Council as the "right authority" to authorize intervention,
R2P has sought to grapple with the thorny issue of international legitimacy.
However, there seems little cause for celebration on this score. We
know that divisions among the five permanent members of the Security
Council have made it difficult to reach agreement about humanitarian
intervention: in its war with Serbia in 1999, NATO acted without UN
endorsement after Russia made clear it would veto any resolution that
legitimized action against Serbia; and China put obstacles in the
way of a more effective UN response to the crisis in Darfur, despite
the Secretary General having labeled that catastrophe as the "greatest
human rights crisis in the world". In the present impasse in
the Security Council, Russia and China have opposed anything that
might resemble military intervention in Syria. They argue that the
earlier intervention in Libya - hitherto regarded as a "model"
application of RtoP - amounted to regime change, and that this went
beyond the grounds for legitimate intervention articulated in R2P.
Moscow and Beijing have consequently been reluctant to support measures
against Syria that might lead to military intervention. Despite R2P,
decision-making in the Security Council is likely to remain hostage
to the interests of the five permanent members.
What are the chances that R2P will become part of customary international
law - and perhaps even enshrined in some treaty, covenant or convention?
Michael Doyle argues that "responsibility" is suggestive
of "obligation" and that the "general practice"
of such an obligation is the sort of thing that builds customary international
law. But he also notes that "the United States and other states
have explicitly rejected the idea that RtoP constitutes and obligation
to rescue and instead affirm that the 'responsibility' is a right
to act on a case-by-case basis" (p. 83). Arguably, we are still
a long way from R2P becoming customary international law.
The idea that human rights might be internationally protected has
evolved since the end of World War ll and has always had to contend
with the problem of sovereignty, a fact that has been glaringly apparent
in the controversies over humanitarian intervention. The doctrine
of A Responsibility was intended to resolve the tension between human
rights promotion and sovereignty and has been greeted by many as an
important new norm in international politics. But arguably, RtoP has
fallen short of these expectations as the current tragedy in Syria
seems to indicate.
Perhaps the realists are right after all: humanitarian norms may not
be deeply embedded enough in international politics to resist interests
and sovereignty. But norms do seem to exist: sovereignty is one, and
so are opposition to slavery and racial discrimination. So perhaps
the prospects for a norm of humanitarian intervention are brighter
than realists imagine. This is certainly the view of theorists who
argue that states can be socialized into accepting norms of appropriate
behavior. Constructivists and idealists of various sorts argue that
norms might be so widely supported globally that states will find
it in their interests to support them and that this in turn will alter
state policies. It all depends on the strength of norm promotion,
an argument that is very popular with human rights activists. RtoP
might become so widely supported that it becomes customary international
law in this area and might eventually find expression in a treaty
or convention of some sort.
We are left with the knowledge of appalling human rights abuse - in
the twentieth century, and in the contemporary world as well. And
we can be sure that the immediacy and relevance of these things will
impact on us more strongly than ever and lend increasing support to
calls that "something be done". The promotion of human right
is a noble ideal and one that should be pursued, but we will be more
successful in our efforts if we are aware of the difficulties involved.
There is a useful web site, Global Centre for the Responsibility
to Protect at: http://globalr2p.org/
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Clark, Ian (1997), Globalisation and Fragmentation: International
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Evans, Gareth (2008), The Responsibility to Protect: Ending Mass
Atrocity Crimes Once and for All.
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