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3 - From the right to persecute to the Responsibility to Protect: Feuerbachian inversions of rights and responsibilities in state–citizen relations
- from Part I - Context
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- By Charles Sampford, Griffith University, Ramesh Thakur, Australian National University
- Edited by Ramesh Thakur, Australian National University, Canberra, William Maley, Australian National University, Canberra
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- Book:
- Theorising the Responsibility to Protect
- Published online:
- 05 August 2015
- Print publication:
- 22 July 2015, pp 38-58
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Summary
The Responsibility to Protect, commonly shortened to R2P, is widely seen as a quintessentially post-Westphalian, liberal, internationalist norm. As such, it is alternately the poster-boy and whipping-boy of the supporters and detractors of liberal internationalism. However, its relationship with Westphalian statehood is a little more complex. R2P owes it origins to a major push by UN Secretary-General Kofi Annan, scarred by the atrocities in Rwanda in 1994 and Srebrenica in 1995 that happened on his watch as the under-secretary-general for peacekeeping, to forge a new normative consensus on when and how the international community should prevent and stop such tragedies. In his first report on R2P in 2009, his successor, Ban Ki-moon, reframed R2P in the metaphor of three pillars. Pillar One was defined as ‘the enduring responsibility of the State to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement’. Pillar Two was described as ‘the commitment of the international community to assist States in meeting those obligations’. Pillar Three was defined as ‘the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide … protection’. While primacy was to be given to peaceful means, should they prove inadequate to ensure protection, the international community should use more robust action: ‘no strategy for fulfilling the responsibility to protect would be complete without the possibility of collective enforcement measures, including through sanctions or coercive military action in extreme cases’.
The first pillar of R2P thus provides the core justification for sovereigns claims to rule and the basis of the social contract that Hobbes posited for their subjects. However, the security of their subjects was doubly undermined: first by the fraudulent nature of the claims of many sovereigns to protect their subjects, and secondly because the successful repression of civilians was one of the most common ways of establishing sovereignty and the basis of sovereign legitimacy. Seventeenth-century ‘R2P’ was more likely to be the ‘right to persecute’ than a responsibility to protect.
The Enlightenment turned the relationship between sovereign and subject on its head in an inversion that Sampford has likened to Feurbach's suggested reversal of the relationship between man and God.
2 - The potential for a post-Westphalian convergence of ‘public law’ and ‘public international law’
- Edited by Jeremy Farrall, Australian National University, Canberra, Kim Rubenstein, Australian National University, Canberra
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- Book:
- Sanctions, Accountability and Governance in a Globalised World
- Published online:
- 05 October 2010
- Print publication:
- 05 November 2009, pp 53-72
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Summary
Introduction
I have previously argued that the separation of ‘public law’ and ‘public international law’ is dependent on Westphalian notions of sovereignty, and that the erosion of sovereignty would blur the boundaries between the two – with potentially far-reaching consequences for the way we view both. It is the jurisdictional walls erected along the boundaries of nation states that distinguish public international law and domestic public law. International public law recognises states, their boundaries, the rules under which they interact, the role of multilateral bodies and the place, if any, of individuals and non-state actors. Domestic public law is set by processes internal to sovereign states that have traditionally been completely independent of international law. The extent to which international law has applicability within a sovereign state has generally been a matter for those states themselves.
Sovereignty is under challenge on a number of fronts:
The potential conflict between state sovereignty and universal human rights where the failure of states to respect and/or protect the basic human rights of their citizens may trigger a ‘responsibility to protect’ that is borne by other nations.
The domestic reach of treaties is increasing.
The US has increasingly sought to enforce its laws and executive orders extraterritorially.
The US has sought to exercise its Military power (though its ‘hyper power’ status is hyped).
The forces of globalisation are weakening the integrity and strength of sovereign states. In so doing they are fundamentally changing the institutional context of ‘strong states’ based on independent political communities, which has provided the assumptions on which constitutional and international law as well as the territorial limitations of Enlightenment political values have been based.
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