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The ‘Responsibility to Prevent’: A Remit for Intervention?

Published online by Cambridge University Press:  20 July 2015

Natalie Oman
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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.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 22 , Issue 2 , July 2009 , pp. 355 - 380
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Copyright © Canadian Journal of Law and Jurisprudence 2009 

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References

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.

1. Anghie, Antony brilliantly explores this transition in Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005)CrossRefGoogle Scholar. Koskenniemi, Martti offers a slightly different but complementary periodization in The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar. For a useful survey of competing stories of international law’s evolution, see Onuf, N., ‘“Tainted by Contingency”: Retelling the Story of International Law’ in Falk, R. et al., eds., Reframing the International (New York: Routledge, 2002) 26.Google Scholar

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4. It has been argued that the NATO action in Kosovo may have been ‘implicitly’ authorized by the Security Council via a series of resolutions that pre-dated the intervention. See, e.g., Gray, C., ‘From Unity to Polarization: International Law and the Use of Force in Iraq’ (2002) 13 E.J.I.L. 1 Google Scholar, and Scott, C., ‘Interpreting Intervention’ (2001) Can. Y.B. Int’l L. 333 Google Scholar. An alternative attribution of legality to the Kosovo action rests on the claim that SC Res. 1244 (1999), which incorporated the terms of the peace settlement between NATO and Yugoslavia in its text, could be viewed as constituting retroactive endorsement of the NATO intervention by the Security Council. See Scott, ibid. at 353-54. T. Franck holds that NATO’s actions in Kosovo were tolerated by the UN under the reading that the situation preceding the bombing campaign was ‘analogous to … an “armed attack” which, under art. 51, gives rise to a right to use force in “self-defence”‘ ( Franck, T., ‘Legality & Legitimacy in Humanitarian Intervention,’ paper presented at the American Political Science Association Annual Meeting, Boston 2002 at 3 [unpublished]).Google Scholar

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6. ICISS, supra note 3 at 55.

7. The ICISS’s approach is not without precedent. F.M. Deng identified the doctrine of ‘sovereignty as responsibility’ in his groundbreaking work as the Representative of the Secretary-General of the United Nations on Internally Displaced Persons (Protecting the Dispossessed(Washington, DC: The Brookings Institution Press, 1993))Google Scholar. The ICISS report also cites Secretary-General Annan’s speeches and writings (notably ‘Two Concepts of Sovereignty’ The Economist 352 (18 September) at 49-50)Google Scholar as sources of inspiration, in addition to recent work on the subject of human security (ICISS, supra note 3 at 11).

8. ICISS, ibid. at 15.

9. UN High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004), online: http://www.un.org/secureworld/; Annan, K., In Larger Freedom (2005), online: http://www.un.org/largerfreedom/; UNGoogle Scholar, World Summit Outcome (2005), online: http://daccessdds.un.org/doc/UNDOC/LTD/N05/511/30/PDF/N0551130.pdf?OpenElement; SC Res. 1674 (2006).

10. See, e.g., Onuf, Nicholas, ‘Intervention for the Common Good’ and Kratochwil, Friedrich, ‘Sovereignty as Dominium ’ in Lyons, Gene M. & Mastanduno, Michael, eds., Beyond Westphalia? (Baltimore & London: Johns Hopkins University Press, 1995)Google Scholar and Reisman, W. Michael, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 A.J.I.L. 866 at 867-68Google Scholar. The international legal literature on globalization and transnational law offers another rich source of empirical and theoretical observation that problematizes these assumptions (see discussion below). Important examples of this literature include Strange, Susan, The Retreat of the State (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar; Sassen, Saskia, ‘The State and the New Geography of Power’ Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996)Google Scholar and Slaughter, Anne-Marie, ‘International Law in a World of Liberal States’ (1995) 6 E.J.I.L. 503.Google Scholar

11. ICISS, supra note 3 at 14-18.

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13. Of course, Hobbes does not present the obligation to obey the sovereign in quite these terms. Individuals undertake a covenant with one another to generate the sovereign in his version of the social contract. The sovereign’s only obligation consists solely in refraining from killing the individual contractor on the occasion of the initial compact. However, there is a recurring sense throughout Hobbes’ argument that the legitimacy of the sovereign is not fully accounted for by this contractual act, and that there is an element of ‘desert’ to its authority to command the obedience of its subjects that that initial act of refraining is insufficient to explain.

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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18. As Popovski indicates, many of these resolutions implicitly and explicitly rely for their justification on recognition of the ‘spillover’ pattern that typifies intra-state conflicts in the post-Cold War era (e.g., in Bosnia, Congo, Rwanda) in which large-scale violence often spreads to neighbouring states with ethnic and economic ties to the ‘home’ state of the conflict (ibid. at 4). See ICISS, supp. vol., supra note 7 at ch. 5 for a concise discussion of this characteristic of conflicts in Rwanda and Eastern Zaire, the former Yugoslavia, and East Timor, among others.

19. Yannis, A., ‘The Concept of Suspended Sovereignty in International Law’ (2002) 13 E.J.I.L. 1037.Google Scholar

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21. ICISS, supra note 3 at 23.

22. Ibid. at 23, 25.

23. ICISS, supra note 3 at 23.

24. Ibid.

25. For analysis of the ideological impulse behind such programs, often dubbed the Washington Consensus, see Santos, Boaventura de Sousa, ‘Beyond Neoliberal Governance’ in Santos, & Rodríguez-Garavito, C.A., eds., Law and Globalization from Below (Cambridge: Cambridge University Press, 2005) at 34.CrossRefGoogle Scholar

26. Most of the efforts that have been made to link human rights to development have combined a push for liberal economic as well as liberal political reforms. However, attempts have been made to exploit the legitimating quality of human rights in connection with economic policies more directly. Petersmann’s proposals for an off-loading of international responsibility for the promotion and protection of human rights to the World Trade Organization constitutes a particularly interesting example of this phenomenon. See Petersmann, E.-U., ‘Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations’ (2002) 13 E.J.I.L. 621 Google Scholar; Alston, P., ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 E.J.I.L. 815.Google Scholar

27. UN, UN Human Development Report 1994 at ch. 2 online: http://hdr.undp.org/reports/global/1994/en/, last accessed on 25 Nov. 2006.

28. Keeble, E., ‘Canadians and Global Beneficence’ in Sherwin, S. & Schotch, P., eds., Engaged Philosophy: Essays in Honor of David Braybrooke 112 Google Scholar, online: http://philosophy.dal.ca/Files/Engaged1.pdf, last accessed 15 Oct. 2005.

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.

30. UN, Human Rights—A Compilation of International Instruments, vol. 1 (First part) (1993) at 51–54 Google Scholar, cited in Boven, Theo van, ‘Human Rights and the Rights of Peoples’ (1995) 6 E.J.I.L. 461 at 464Google Scholar. On the phenomenon of developmentalization, see Rajagopal’s, Balakrishnan insightful analysis in International Law from Below (Cambridge: Cambridge University Press, 2003), esp. at ch. 7.CrossRefGoogle Scholar

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32. Sassen, supra note 10 at 6.

33. For an early divergent assessment of the effect that globalization is having upon the constitution of traditional state sovereignty, see Schreuer, Christopher, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’ (1993) 4 E.J.I.L., 447 Google Scholar; also Alston, Philip, ‘The Myopia of the Handmaidens’ (1997) 8 E.J.I.L. 435.Google Scholar

34. Sassen’s observations contribute to the discrediting of what Thomas Pogge refers to as the ‘purely domestic poverty thesis’ (PDPT), a popular view which infuses discussions of states’ failures to ensure domestic human security with a moralistic quality. Briefly, the PDPT holds that ‘the causes of national poverty and international inequality are purely domestic’ ( Pogge, T., ‘The Incoherence Between Rawls’ Theories of Justice’ (2004) LXXII Fordham L. Rev. 1739 at 1753Google Scholar). An exemplar of this thesis cited by Pogge occurs in the work of John Rawls (see discussion below), who holds that when societies do not thrive ‘the problem is commonly the nature of the public political culture and the religious and philosophical traditions that underlie its institutions. The great social evils in poorer societies are likely to be op Pressive government and corrupt elites’ ( Rawls, , ‘The Law of Peoples’ (1993, essay version), reprinted in Freedman, S., ed., John Rawls: Collected Papers 559 (Cambridge, MA: Harvard University Press, 1999)Google Scholar. Both Pogge and Stephen Macedo make notably concise efforts to debunk the fallacious line of reasoning involved in the PDPT, in Macedo’s case, by relying upon Jeffrey Sachs’ research concerning the signal contribution of geographical circumstances to persistent poverty ‘Institutions Don’t Rule: Direct Effects of Geography on Per Capita Income’ NBER Working Paper 9490 (February) 2003), available online: http://www.earth.columbia.edu/about/director/publicat.html) and by averring to the significance of states’ particular histories of colonial exploitation and domination as well as the role played by international trade and economic policies ‘that allow rich countries and their corporations to exploit their advantages by making unfair rules of trade’ ( Macedo, Stephen, ‘The Law of Peoples: What Self-Governing Peoples Owe to One Another’ (2004) LXXII Fordham L. Rev. 1721 at 1728Google Scholar, and generally 1726-28).

35. Kofi Annan, We the Peoples: The Role of the United Nations in the 21st Century (UN Reports, 2000), cited in ICISS, supra note 3 at 22-23.

36. Fitzmaurice, Sir Gerald, diss. op., Namibia case, ICJ Reports (1971) 294 (para.115)Google Scholar, cited in Koskenniemi, supra note 16 at 341.

37. The authority of the SC and other UN organs to establish these limits is dealt with in the Expenses Case, ICJ Reports (1962) 168, cited in Koskenniemi, supra note 16 at 341, n.70. See also T. Franck’s brief but illuminating discussion of the origins of this self-interpretive power of the principal UN organs, supra note 4 at 5.

38. I follow José E. Alvarez in preferring the term ‘liberal peace’ to the more common ‘democratic peace’ because of the superior precision of the former term. See Alvarez, , ‘Do Liberal States Behave Better?’ (2001) 12 E.J.I.L. 183 at 186.Google Scholar

39. For details on the COW Project, see online: http://www.umich.edu/cowproj/, last visited 15 July, 2008.

40. Supporters of the liberal peace thesis often invoke Immanuel Kant’s argument in Toward Perpetual Peace in support of their interpretation of COW data. Kant’s teleological argument is frequently interpreted as predicting the inevitable development of peaceful relations among (roughly speaking) liberal states. See Doyle, Michael W, ‘Kant, Liberal Legacies and Foreign Affairs’ (1983) 12 Phil. & Pub. Affairs 205 and 323.Google Scholar

41. Ibid. at 207-08.

42. Ibid. at 235.

43. For John Rawls most developed account of the law of peoples see his The Law of Peoples (Harvard University Press, 2001). For incisive commentary on Rawls’ international theory, see Téson, Fernando, A Philosophy of International Law (Boulder, CO: Westview Press, 1998) at ch. 4Google Scholar, the special issue of the Fordham Law Review devoted to a symposium on ‘Rawls and the Law’ (2004) LXXII 1381 Google Scholar, and Martin, Rex & Ready, David A., eds., Rawls’ Law of Peoples (Malden, MA: Blackwell, 2006).CrossRefGoogle Scholar

44. Rawls, John, Political Liberalism, 2nd ed. (New York: Columbia University Press, 1993, 1996) at 35.Google Scholar Rawls is seeking to use these terms of art to develop an idealized example of a non-liberal Muslim society (‘Kazanistan’), and to that end suggests that a non-liberal society might deny full equality to members of religious minorities or to women but still meet the criteria of decency. While such societies may place religious restrictions on eligibility for high government office, they respect basic human rights (Art. 3-18 of the UDHR). Rawls employs these definitions in an effort to reconcile the impulse to respect cultural diversity with the conviction that such respect should not serve as a carte blanche for the op Pression of non-liberal others.

45. Macedo, supra note 34 at 1733.

46. See Téson, Fernando, A Philosophy of International Law (Boulder, CO: Westview Press, 1998)Google Scholar; for his detailed justification for humanitarian intervention, see his Humanitarian Intervention (Dobbs Ferry, NY: Transnational, 1988)Google Scholar.

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50. Kagan, Robert, The Return of History and the End of Dreams (New York: Knopf, 2008).Google Scholar

51. Slaughter’s definition of ‘liberalism’ is distinct from Rawls’, while sharing a number of common features with it. She describes liberal states as possessing a list of six correlative attributes that includes: peace, liberal democratic government, market economies, a dense network of transnational relations among social and economic actors, informal transnational and transgovernmental channels of communication and action that coexist with formal inter-state contacts, and a blurring of the distinction and hierarchy between foreign and domestic issues (Slaughter, supra note 10 at 510-14). Slaughter believes that this list of factors correlative with the liberal peace ‘can be translated into assumptions about political and economic relations among liberal States’ (ibid. at 505).

52. Moravcsik, A.M., ‘Liberalism and International Relations Theory’ (Center for International Affairs, Harvard University, Working Paper No. 92-96, 1992).Google Scholar

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54. Ibid. at 505.

55. Ibid. at 538.

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59. Koskenniemi, ibid. at 234-35, n. 241. For a detailed discussion of terminological problems with the COW Project, see Spiro, ibid. and Oren, ibid. Oren focuses in particular on the value-laden definition of democracy that is employed in most analyses of the liberal peace data: ‘In all studies America receives virtually perfect scores on the democracy scale. America is the norm against which other polities are measured…. [T]he selection of the empirical criteria by which this abstract concept is described—primarily fair electoral processes and executive responsibility—is consistent with the dominant image of democracy in current American culture (266).’

60. See Spiro’s detailed analysis of the statistical significance of Doyle’s findings (supra note 58); on this topic see also Mearsheimer, J.J., ‘Back to the Future’ (1990) 15 Int’l Security 5 at 50-51CrossRefGoogle Scholar.

61. On this point see especially Layne, supra note 58.

62. Koskenniemi, supra note 58 at 234; see also Alvarez, supra note 38 at 243-46.

63. See, e.g., Marks, supra note 57; Koskenniemi, supra note 16 and supra note 58.

64. Alvarez, supra note 38 at 183, 209.

65. Eckert, Amy E., ‘Free Determination or the Determination to be Free?’ (1999) 4 UCLA J. Int’l L. & Foreign Affairs 55.Google Scholar

66. Franck, supra note 57 at 515.

67. Reisman, supra note 10 at 867-68.

68. Although there are important points of disagreement in their views as to how such intervention might be undertaken legitimately.

69. Koskenniemi, supra note 16 at 343.

70. The fact that no single theory is generally-accepted does not, of course, mean that such theories do not exist. Notable attempts to account for the liberal peace have been made by Russett, B., Grasping the Democratic Peace (Princeton, NJ: Princeton University Press, 1993)Google Scholar and J.M. Owen, ‘How Liberalism Produces Democratic Peace’ in Brown, Lynn-Jones & Miller, supra note 58, and M.W. Doyle himself in ‘Kant, Liberal Legacies, and Foreign Affairs’ supra note 40 and see also Doyle, ‘Kant & Liberal Internationalism’ in P. Kleingeld ed., supra note 47.

71. Koskenniemi, supra note 16 at 343-44.

72. Alvarez, supra note 38 at 245.

73. Mehta, P.B., ‘From State Sovereignty to Human Security (Via Institutions?)’ paper presented at the American Political Science Association Annual Meeting, Boston, 2002 at 7 [unpublished].Google Scholar

74. Alvarez, supra note 38 at 241.

75. Thomas Franck has argued in favour of the same conclusion regarding the desirability of an ‘illegal but legitimate’ classification of ‘humanitarian’ interventions, from a very different starting point (‘Legitimacy versus Legality,’ supra note 4).

76. Toope, S. & Brunnée, J., ‘An Interactional Theory of International Law’ (2000) 39 Colum. J. Transnational Law 19 at 22-23.Google Scholar

77. Ibid. at 69-71, n. 201.

78. See, e.g., Fuller, Lon L., The Morality of Law, rev. ed. (New Haven, CN: Yale University Press, 1969) at 43 Google Scholar and Burg, W van der, ‘The Morality of Aspiration’ in Witteveen, W J. & Burg, Van der, eds., Rediscovering Fuller (Amsterdam: Amsterdam University Press, 1999) at 170.Google Scholar Van der Burg develops his argument with reference to the example of treaties raised by Jackson, J.H. in World Trade and the Law of GATT (New York: Bobbs Merrill, 1969)Google Scholar. Jackson argues that if ‘norms of obligation’ are mixed with ‘norms of aspiration’ in the same instrument, there is a risk that states may behave as if the strict obligations established in those treaties are mere aspirations (at 761-62).

79. Winston, K., ‘The Ideal Element in a Definition of Law’ (1986) 5 Law & Phil. 89.CrossRefGoogle Scholar

80. See Löwenheim, O., ‘“Do Ourselves Credit and Render A Lasting Service to Mankind”: British Moral Prestige, Humanitarian Intervention, and the Barbary Pirates’ (2003) 47 Int’l Stud. Q. 23 CrossRefGoogle Scholar for an illustration of the ubiquity of the language of humanitarian justification employed by military intervenors during the past 150 years.

81. This drive to persuade is dealt with in divergent ways in Rousseau’s discussion of the activity of the legislator who seeks to ‘persuade without convincing’ and in Habermas’ delineation of the three universal validity claims that every speech act makes, implicitly or explicitly: a claim to the truth of what is said (or assumed); a claim to the ‘rightness’ of the linguistic utterance in the given context, or of the underlying norm; and a claim to the speaker’s truthfulness. For more detailed discussion of this point, see Oman, N., ‘Preliminary Reflections on a Theory of Judgement and its Role in International Law’ [unpublished, archived at Memorial University of Newfoundland 2008]Google Scholar.

82. See ICISS, supra note 3 at ch. 4 for a detailed discussion of the Commission’s proposed criteria for reactive intervention.

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.

86. Habermas, J., Moral Consciousness and Communicative Action, trans. by Lenhardt, C. & Nicholsen, S. Weber (Cambridge, MA: MIT University Press, 1990) at 200 Google Scholar, quoted in Moon, DJ., ‘Practical Discourse and Communicative Ethics’ in White, S.K., ed., Cambridge Companion to Habermas (Cambridge: Cambridge University Press, 1995) at 152.Google Scholar

87. Toope and Brunnée’s work developing Lon L. Fuller’s notion of a normative continuum is germane here. If law is not viewed as ‘an inherently superior form of normativity,’ then the benefit to be gained by legalizing a responsibility to prevent becomes even less apparent (supra note 77 at 72).

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.

89. Reus-Smit, supra note 58 at 576.