The Legitimacy of Responsibility to Protect - Essay Example

?Responsibility to Protect This paper will explore the relationship between politics and law at the international level, and the importance of such arelationship. It discusses the legitimacy and practicality of pursuing the Responsibility to Protect (henceforth referred to as R2P) approach to international human rights, in those countries where the rule of law or civil order has broken down. The Responsibility to Protect (henceforth referred to as R2P) is a commitment arrived at by international convention as a concerted response to the Rwanda massacre. R2P received formal approval as an international human rights doctrine at the United Nations World Summit in 2005. During this occasion, all member states agreed to be held accountable for crimes against humanity such as mass killings, genocide, and ethnic cleansing. The principle of R2P is anchored on the responsibility of the state to protect its population from large-scale man-made atrocities. When the state is either incapable of or unwilling to fulfil this obligation, then the responsibility passes to the international community. The latter should first explore diplomatic persuasion and other similarly peaceful avenues to avert or arrest the catastrophe. Should these means fail, then the use of coercive force is justified in order to intervene in the interest of the oppressed population (America, 2009). Since the launching of R2P, there have been instances where countries were clearly remiss in the observance of this accountability. There had been mass killings and other widespread violation of human rights, which in turn led to a decimation of a large number of the population in Bosnia, Cambodia, Darfur, Kosovo, and in the eastern portion of the Democratic Republic of Congo (America, 2009). There have likewise been fresh initiatives in the implementation of R2P. In January 2009, the Global Civil Society Coalition on the Responsibility to Protect was launched. The coalition aims to create a network among governments and civil society groups, in an attempt to ascertain that member states abide by and enforce measures that would put to greater effect the commitment it made to uphold R2P (America, 2009). The moral foundation of R2P vis-a-vis state sovereignty The Universal Declaration of Human Rights (UDHR), which was adopted and proclaimed on December 10, 1948 by the UN General Assembly, is the founding document of the international law of human rights (Renee Cronin-Furman, 2010); the UDHR is in turn founded on the principle that “the protection of human rights knows no international boundaries” (Buergenthal, 1997:704), and therefore an obligation exists for any and all members of the international community to ascertain that governments guarantee their protection over their people. A conceptual conflict exists between the doctrine of state sovereignty and non-intervention and the doctrine of human intervention. Classical political realism stresses the dominance of the sovereign state as the principal actor by which rights are created and given effect, and human relationships regulated. Humanitarian intervention, on the other hand, is a relatively new concept, a product of normative discourse because it infuses values into the appreciation of the human condition, and espouses certain norms held to be morally right over that which is morally wrong. The doctrine of state sovereignty is firmly embodied as policy in the UN Charter; in contrast, the Charter made no mention of the right of humanitarian intervention in any of its provisions, although humanitarian intervention likewise poses a challenge to state sovereignty. However, despite the lack of any explicit acknowledgement of the doctrine, the Security Council had always incorporated the implicit right to intervene, even with the use of military force, for humanitarian reasons in its decision-making, such as the resolutions it adopted in the case of Korea in 1950 and the Congo in 1962. The rationale of the concept is well elucidated by Thakur (2003) when he wrote: “Intervention for human protection purposes occurs so that those condemned to die in fear may live in hope instead. It is based in the double belief that the sovereignty of a state has an accompanying responsibility on the part of that state; and that if the state defaults on the responsibility to protect its citizens, then the fallback responsibility to do so must be assumed and discharged by the international community.” (Thakur, 2003:161) The principles of the UDHR, the right of humanitarian intervention, and subsequently the Responsibility to Protect, are thus instinctual rather than rational and therefore post-modernist in approach. They are not created by statute, jurisprudence or proclamation, but have been attributed the recognition of natural law or in some instances even divine law. Humanitarian intervention has been around for many years even before it had been articulated. An example is the decision of the General Assembly in 1950 to “consider the matter immediately with a view to making appropriate recommendation to Members for collective measures, including the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security” (UNGA 1950:10 in Benjamin, 2009:38). The General Assembly thereafter went on to appoint a Peace Observation Commission composed of fourteen member-states, to observe and report any situation in the world where international tensions existed which may endanger world peace. Intervention is seen, however, only as a last resort, where other coercive but peaceful means (e.g. sanction, censure and negotiations) prove unsuccessful (Benjamin, 2009:38). On its face, the doctrine of R2P, like humanitarian intervention, may be viewed as a “highly significant breach of the doctrines of state sovereignty and non-intervention” (Newman, 2009:92). In the intervening years since the UN Charter’s proclamation of the guarantee of state sovereignty, however, there has been a transition from the concept of “sovereignty as right” to “sovereignty as responsibility,” the latter being largely attributed to Francis Deng, UN Special Representative on Internally Displaced People (IDP) in 1993. The problem he saw lay in the fact that the position of IDPs depended on the whims and predisposition of local governments, because of the absence of a international legal instrument that could provide protection to them. The principle of “sovereignty as responsibility” implied that a higher international authority must exist to which sovereign states may be held accountable if they failed to discharge their responsibility to provide protection to their people (Newman, 2009:93). R2P distinguished from humanitarian intervention R2P is different from humanitarian intervention, however, much more military humanitarian intervention. It is assumed more into the broad construct of the Millennium Development Goals and Human Security, which are more aimed at the improvement of the material quality of life of the population in developing and undeveloped countries (Benjamin, 2009:54). The difference lies in the scope, the means, and the ultimate objective. This redounds to three core elements. First, states have it within their sovereign authority the responsibility to protect their population against mass atrocity crimes. Second, where a state lacks the capability to discharge this responsibility, then other states have the obligation to extend the necessary assistance, including military assistance, but at the request of the state in need, and for the purpose of protecting the public And third, during those extraordinary instances where a state manifestly fails to protect its people, more likely due to ill-will and not lack of capacity — then “the wider international community has the responsibility to take appropriate collective action, in a timely and decisive manner (including in extreme cases, if the Security Council agrees, the use of coercive military force). The responsibility to protect—unlike the doctrine of the right of humanitarian intervention, which it was expressly designed to supersede—of course involves much more than just the use of military force...” (Evans, 2009 in Benjamin, 2009:55). Expansion of R2P as to scope and coverage Highlighted in the foregoing explanation by Evans is the national and multilateral responsibility conveyed by R2P, which already transcends from mere protection through intervention, to prevention itself. The expanded concept reflects the two schools of thought that resulted from the “Two Concepts of Sovereignty” expressed by UN Secretary-General Kofi Annan – namely, prevention and reaction (Benjamin, 2009:58). The broad gist of this concept is that R2P need not be confined to reaction if such atrocities could be pre-empted by prevention. This broader scope of R2P contains four structural inadequacies identified by Bellamy (2009:99-100): first, that its emphasis is too broad that it goes beyond the coverage of mass atrocity crimes; second, that it does not place a limitation on cost which discourages states from providing the financing for it; third, that the expanded preventive agenda raises fears of further encroachments on national sovereignty; and fourth, a confusion as to where structural prevention becomes interlinked with the country’s development programs. There have also been authors who espoused the expansion of rights covered by R2P. To date, R2P covers only protection to individuals from genocide, ethnic cleansing, and crimes against humanity; it does not, however, encompass the other fundamental rights – a disconnect no longer sustainable, proponents insist, because it leaves to the eroded state sovereignty the protection of such rights as the freedom of speech. Including the freedom of expression among the internationally protected rights under R2P is “broadly consistent with the moral, legal, and consequentialist arguments in favor of the international norm of responsibility to protect” (Magnuson, 2010:256). Beyond that, R2P coverage has been advocated for expansion beyond human rights to include “civil, political, economic, social and cultural rights, including the right to development” (Ruggie, 2008:1). Furthermore, there are views that expand R2P coverage to actors other than states. According to the report of the Secretary-General (A/63/677, 12 November 2009), states are not the only actors capable of committing mass crimes; a clear example are armed groups which are in control of their own territory such as those that exist in certain areas of the Democratic Republic of the Congo, to the point that they may be obliged to protect the people residing within their territories (Luck, 2010:351). The expanded construction of R2P as applying to human rights violations other than genocide, ethnic cleansing, and crimes against humanity opens up possibilities of other actors coming under the operation of R2P. One such entity is big business and its various permutations, which the UN Document A/HRC/5 (7 April 2008) charged with the “Responsibility to Respect” human rights.. There are many academic studies that have espoused the inclusion of multinational corporations as actors under the coverage of R2P, among which are Arnold (2010), Hamann (2009), Nolan and Taylor (2009), McCorquodale (2009), Mantilla (2009), Whelan, Moon & Orlitzky (2009), and Schrage (2003), among a host of others. The extent to which human rights law is enforceable upon the private sector by international body is a valid question, given that multinational corporations generally operate outside the control of any one political body. Large scale businesses that engage thousands in its international workforce have been targets of accusations involving human rights abuses against labour. Assessing the practical viability of implementing R2P The “responsibility to protect” was originally conceived as that duty pertaining exclusively to the states in the case of genocide, ethnic cleansing, and crimes against humanity. It has somehow metamorphosed into a responsibility that also could potentially encompass multinational organizations and other members of the private sector. The scope of responsibility appears to be developing to a point where the actors are compelled to preserve and protect a wider range of human rights including the right to self expression, otherwise they invite the coercive power of international judicial mechanisms and intervention. The manner in which R2P continues to conceptually evolve is therefore constructivist in approach, because it introduces a new method of interpretation for human security – how people-centred approach to international norms is presently being implemented and practised by international society (Tsai, 2010). This supersedes the former interpretation of power and national interest as the focal point of national behaviour, opting instead for military intervention in the interest of the welfare of the people. There are two strategies to R2P. One is to enable “genuine” humanitarian interventions by defining the parameters or creating common benchmarks to indicate when the international community may intervene. The other is to structure the language in order to prevent potential abuse – that is, the use of humanitarian arguments in order to justify intervention when the humanitarian interest is not actually that which is served. The first approach qualified what interventions are allowed, beyond which no intervention is permitted; the second is broader, since it qualifies what interventions are not allowed, outside of which all interventions are permitted. The resulting relaxation of the general prohibition against force has triggered concerns in the international community about the greater potential for abuse in the implementation of R2P (Bellamy, 2009). There are also four precautionary principles meant to curtail abuse of the resort to humanitarian intervention: right intention, last resort, proportional means, and reasonable prospects. There are several perceived problems in implementing the R2P initiatives, three of which are cited by Bellamy (2009) as follows: 1. Indeterminacy – Once a criterion or criteria have been established as a norm, those who have propagated the norm no longer have control over its application. In fine, when an emergency situation is encountered, there are no firm criteria that states would arrive at a consensus that threshold had been breached or precautionary principles met. 2. Ambiguity – In assessing the factual antecedents prior to deciding on whether to intervene or not, there is ambiguity in that factual evidence are never politically neutral, and this ambiguity gives the edge to more powerful countries to sway others by exerting financial, military and political power. 3. Unfounded assumption – The R2P strategies and initiatives are founded on the assumption that states, even powerful ones, can be pressured by external elements to act in humanitarian crises. In the latter problem, there have been at least two instances in the past when powerful states have been compelled to act. The first is America’s intervention in Somalia, although this was more Congress’s response to images of humanitarian disaster than to external pressures. The other is Australia’s decision to intervene in East Timor, which also to a large extent was determined by local public opinion. Thus even in the best examples, there are limitations on the effectiveness of international pressure on any particular state, possibly to the point of rendering R2P ineffective (Bellamy, 2009:150). Finally, an assessment of the practicality for implementing R2P cannot be complete without examining the mechanisms by which action may be taken to enforce the responsibility, and the remedies that may be resorted to in order to provide relief, impose penalties, and compel compliance, thereby giving teeth to the R2P program. In this matter, the Ruggie Report (2008) provides a helpful overview of the range of remedial measures aggrieved parties or other countries may resort to in order to seek redress or compel the errant state to abide by its responsibility to protect. These remedies include both judicial mechanisms, involving international (i.e., the International Court of Justice in the case of genocide, ethnic cleansing, and crimes against humanity) and state-based tribunals; non-judicial mechanisms at the state level, and company-level grievance mechanisms. At this point in the development of the law, however, there is no integrated or comprehensive system by which these remedies may be pursued. The patchwork mechanisms differ from country to country, and both at the administrative and judicial levels uncertainties and discrepancies in interpretation threaten any attempt to standardize the application of the R2P principles. While extreme cases of state-inflicted crimes against humanity are generally discernible by their heinous nature, those cases dealing with alleged human rights transgressions in the conduct of business, particularly where complainants may be advancing their own political or ideological agenda, would be more difficult to judge. The difficulty of ascertaining the facts is compounded by the widely divergent understanding of rights in different localities, implied in advocated scope to cover “promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development” (Ruggie, 2008:1). Conclusion – The politics and law of R2P This study set out to explore the relationship between politics and law at the international level, and the importance of such a relationship, within the context of the “Responsibility to Protect” doctrine and its practical application. Exploring the dynamics between politics and the law of something such as R2P can result in either a finding of complete agreement between the two on the one extreme, and total disagreement in principle between them at the other. It is apparent from the readings in the discussion that there is a fundamental difference between R2P as a necessary extension of humanitarian intervention in post-WWII context, and the proposed expansion of scope and coverage in recent years. In the original context, Responsibility to Protect held only states responsible to the international community for the incidences of genocide, ethnic cleansing, mass killings and crimes against humanity within its territory. As it is, this version may be said to be consistent and viable with legal and political principle, in that it is sufficiently supported by international law through the UN Charter and the conventions institutionalized by the General Assembly and the official acts of the Security Council. Politically, it serves the interests of foreign and economic policy of all states to ensure that host states ensure their internal social peace and order, in the light of global trade and commerce. The crimes subject to sanction are inherently distinguishable due to their heinous nature that is an affront to the cause of humanity. Short of this, the state is presumed to exercise its sovereign power in determining crimes and corresponding punishment. As such, while the present doctrine espouses the normative view of the UDHR that “protection of human rights knows no international boundaries,” it limits those human rights transgressions to those whose apparent harm is blatantly and doubtlessly manifested. Short of this, the political realism of state sovereignty and non-intervention are still upheld. The expanded version of R2P is envisioned to encompass non-state entities and cover practically all human rights, including civil, political, economic, social, and cultural rights. The basis for this expansion is largely constructivist in that it proceeds from the evolving concept of rights and the role of international community. In this regard, the law (assuming this principle to be made part of international law) and politics diverge. The civil, political, economic, social and cultural realities of each country or locality are determined by the particulars of that place, its history, geography, and demography, and therefore certain “rights” may be highly relevant in one country but inapplicable in others. The absence of a standard and the subsequent ambiguity and indeterminacy present a dilemma in enforcement and adjudication. Furthermore, holding international private entities responsible to the international community is also a contentious matter, because private business organizations are run by agents of the shareholders, and fixing accountability for purpose of legal adjudication may be problematic. Furthermore, making such organizations answerable to the international community diminishes the sovereign power of the state over persons within its territory, and is therefore inimical to its political self-determination. This expansion further opens the doors to abuses of the R2P mechanisms to forward covert commercial and other private interests in the guise of legitimate grievances. On the whole, the present construction of the Responsibility to Protect is consistent with the tenets of international law and political reality, which are seen to reinforce each other. Expanding it beyond its present coverage and scope, however, introduces a divergence between law and politics, and must undergo much development before such becomes viable and operational. References Arnold, Denis G. “Transnational Corporations and the Duty to Respect Basic Human Rights.” Business Ethics Quarterly, Jul 2010, 20(3):371-399 Bellamy, Alex J. 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Accessed 6 May 2011 from http://reliefweb.int/node/317572 Luck, Edward C. “The Responsibility to Protect: Growing Pains or Early Promise?” Ethics & International Affairs, 2010, 24(4):349-365; DOI: 10.1111/j.1747-7093.2010.00276.x Magnuson, William. “The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law.” Vanderbilt Journal of Transnational Law, Mar2010, 43(2):255-312 Mantilla, Giovanni. “Emerging International Human Rights Norms for Transnational Corporations.” Global Governance, Apr-Jun2009, 15(2):279-298 McCorquodale, Robert. “Corporate Social Responsibility and International Human Rights Law.” Journal of Business Ethics, Jul2009 Supplement 2, 87:385-400; DOI: 10.1007/s10551-009-0296-5 “New Efforts on R2P.” America, 2/16/2009, 200(5): p4 Newman, Michael. “Revisiting the ‘Responsibility to Protect,’” Political Quarterly, Jan 2009, 80(1):92-100; DOI: 10.1111/j.1467-923X.2009.01963.x Nolan, Justine & Taylor, Luke. “Corporate Responsibility for Economic, Social and Cultural Rights: Rights in Search of a Remedy?” Journal of Business Ethics, Jul 2009 Supplement 2, 87: 433-451; DOI: 10.1007/s10551-009-0295-6 Renee Cronin-Furman, Kathleen “60 Years of the Universal Declaration of Human Rights: Towards an Individual Responsibility to Protect.” American University International Law Review, 2009, 25(1):175-198 Ruggie, John. United Nations (UN), Protect, Respect and Remedy: A Framework for Business and Human Rights, report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, UN Document A/HRC/8/5 (New York: UN, 2008). Accessed 5 June 2011 from http://www.business-humanrights.org/Documents/RuggieHRC2008. Schrage, Elliot. “Emerging Threat: Human Rights Claims.” Harvard Business Review, Aug 2003, 81(8):16-18 Thakur, Ramesh. “In Defense of the Responsibility to Protect”, International Journal of Human Rights, Autumn 2003, (3):160-178 Tsai, Yu-tai. “The Study of Diffusion and Practice of International Norms through the ‘Human Security’: The Case of ‘Responsibility to Protect.’ Asian Social Science, Feb 2010, 6(2):12-19 Whelan, Glen; Moon, Jeremy; & Orlitzky, Marc. “Human Rights, Transnational Corporations and Embedded Liberalism: What Chance Consensus?” Journal of Business Ethics, Jul2009 Supplement 2, 87:367-383; DOI: 10.1007/s10551-009-0298-3 Read More