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Published online by Cambridge University Press: 20 July 2015
We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.
I am grateful to Howard Adelman, Vesselin Popovski, and Virginia Ryan for their comments on the preceding text, as well as to the anonymous reviewer for this journal. I thank Richard Bronaugh and the editorial staff of the Canadian Journal of Law & Jurisprudence for their generous assistance in preparing this manuscript for publication. Preliminary research for this article was supported in part by funding from the Social Sciences and Humanities Research Council of Canada, and by a Human Security Doctoral Fellowship from the Canadian Consortium on Human Security.
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14. Hobbes is not generally interpreted as advocating a right of revolution. And yet, he says ‘[t]he obligation 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 … The end of obedience is protection ….’ (Hobbes, Leviathan, ed. by Oakeshott, M. (New York: Macmillan, 1962) at ch. 21.Google Scholar) On the basis of such assertions, Alan Ryan concludes that Hobbes’ theory, ‘built on rationalist and individualist foundations, must, in spite of its author’s intentions, leave room not only for individual resistance but also in extremis, for fully fledged revolution.’ (‘Hobbes’ Political Philosophy’ in Sorell, T., ed., The Cambridge Companion to Hobbes (Cambridge: Cambridge University Press, 1996) at 241.CrossRefGoogle Scholar)
15. The triggering conditions for reactive intervention would almost certainly remain somewhat more stringent, however. The ICISS provides a conceptual basis for broadening the definition of inter-ventionary situations, and also suggests that intervention in the absence of Security Council authorization—ideally multilateral intervention mandated legally by the General Assembly under a ‘Uniting for Peace’ resolution, and even perhaps (?) multilateral or unilateral action undertaken in accordance with the R2P criteria, but without UN authorization—could be regarded as at least morally legitimate, if highly contested under the terms of the responsibility to protect (see ICISS, supra n.3, ch. 6, esp. at 55). While I have grave concerns shared by many about action in the absence of multilateral agreement, I take the ICISS’s point about the need to circumvent the immobilizing requirement for SC agreement in exigent situations where the veto of a permanent SC member-state is an impediment. Unfortunately, the subject of UN institutional reform is beyond the purview of this paper.
An alternative source of authority for the R2Ps reconceptualization of sovereignty, a much more speculative and distant prospect for legal actualization of a responsibility to protect, lies in the International Law Commission’s 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (see the Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly Fifty-sixth session, Supplement No. 10 (A/56/10) ch. IVE.1). There is some possibility that ‘humanitarian’ intervention could eventually fall under the compass of ‘countermeasures of general interest,’ a category of acts notable for its absence from the final draft, and which nevertheless conditions the content of the Articles in significant measure ( Alland, D. ‘Countermeasures of General Interest’ (2002) 13 E.J.I.L. 1221 Google Scholar. As a necessary first step, violations of a state’s responsibility to protect would have to be recognized as serious breaches of a peremptory norm of international law. (See P. Klein, ‘Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law,’ I. Scobbie, ‘The Invocation of Responsibility for the Breach of Obligations under Peremptory Norms of General International Law,’ and Tams, C.J., ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’—all in (2002) 13 E.J.I.L. at 1241, 1201, and 1161.Google Scholar)
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29. In the 1970s, a dissenting network of academics and activists began to recognize that deprivation is a result of factors beyond inadequate income, and that the once-standard utilitarian approach to measuring and determining the goals of development was unable to capture those factors. These critics argued that an approach to development that assigned primary importance to the GNP of a given state was simply defining the standard of living of that state’s citizens in terms of the amount of purchased goods consumed by them, and was more accurately regarded as a measure of what Amartya Sen calls ‘opulence’. The human security view builds on this critique, which sought to replace a preoccupation with opulence with a focus on quality of life; similarly, the human security view at the heart of the responsibility to protect aims to valorize the quality of life of individuals, rather than the security of the state.
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83. Although that tendency may be fading in light of the sustained public discussion of the problem of ‘exit strategy’ following the American invasion of Iraq.
84. Personal communication, November 2004.
85. Other means of pursuing legal recognition of norms of responsibility to protect or rebuild could perhaps build upon the ILC’s Draft Articles on State Responsibility, discussed above.
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88. The concept of ‘structural violence’ refers to the combined impact of systemic inequalities of opportunities, resources, and power, both within and among states. For further discussion, see Galtung, J., ‘Violence, Peace and Peace Research’ Essays in Peace Research (UK: Humanities Press, 1975) 1 at ch. 4Google Scholar, cited in Marks, supra note 57 (first reference) at 473), n.108.
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