BLACKHEATH PHILOSOPHY FORUM

 

 

HUMAN RIGHTS IN WORLD POLITICS - THE LESSONS OF A RESPONSIBILITY TO PROTECT

Bob Howard

Introduction

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).

International Protection 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 says:

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 regime.

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 intervention.

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 argument.

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 Protect (RtoP)

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:

Is it 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.

Conclusion

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.

References:

There is a useful web site, Global Centre for the Responsibility to Protect at: http://globalr2p.org/
Annan, Kofi (1999), "Two Concepts of Sovereignty", Economist, September 18, p. 49.
Bellamy, Alex (2009), Responsibility to Protect.
Brown, Chris (1999), "Universal Human Rights: A Critique", in Tim Dunne and Nicholas Wheeler (eds), Human Rights in Global Politics.
Bull, Hedley (1979), "Human Rights in World Politics", in Ralph Pettman (ed), Moral Claims in World Politics.
Clark, Ian (1997), Globalisation and Fragmentation: International Relations in the Twentieth Century.
Doyle, Michael (2011), "International Ethics and the Responsibility to Protect", International Studies Review, 13: pp. 72-84.
Evans, Gareth (2008), The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All.
Evans, Gareth and Mohamed Sahnoun (2002), "The Responsibility to Protect", Foreign Affairs, Nov/Dec.
Goldsmith, Jack and Stephen Krasner (2003), "The Limits of Idealism", Daedalus, 132: 1, pp. 47-63.
Hayden, Patrick (2001), The Philosophy of Human Rights
Smith, Michael J (2001), "Humanitarian Intervention: An Overview of the Ethical Issues", in Patrick Hayden, The Philosophy of Human Rights, pp. 478-502.
Walzer, Michael (1995), Thick and Thin: Moral Argument at Home and Abroad.