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Libya: A Multilateral Constitutional Moment?

Published online by Cambridge University Press:  20 January 2017

Catherine Powell
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American Journal of International Law , Volume 106 , Issue 2 , April 2012 , pp. 298 - 316
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Copyright © American Society of International Law 2012

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References

1 The responsibility to protect can refer variously to a principle, a formal doctrine with three prongs (see infra notes 8-10 and accompanying text), and the associated moral claim(s) about the responsibilities of states. The expression RtoP will be used, depending upon context, to refer to any of these meanings, which are so interconnected that trying to distinguish them clearly in all contexts would be more confusing and diverting than useful. In certain circumstances, for precision, I will add some additional qualification to eliminate any possible confusion that some broader claim is at stake.

2 Cf. 2 Bruce Ackerman, We The People: Transformations 20, 26 (1998); Slaughter, Anne-Marie & Burke-White, William, An International Constitutional Moment, 45 Harv. Int’l L. J. 1, 2 (2002)Google Scholar (adapting Ackerman’s ideas on constitutional moments and constitutional transformation to international law).

3 Of course, counterexamples—such as the Security Council’s far less robust response, at least at the time of this writing, to Syrian authorities’ brutal suppression of civilians—represent lingering resistance to this shift.

4 I use the term movement to refer to a “distinctive form of contentious politics ... a sustained, organized public effort making collective claims on targeted authorities.” Tilly, Charles & Wood, Lesley J., Social Movements, 1768-2008, at 3 (2d ed. 2009)Google Scholar. As demonstrated by the Arab Spring, in today’s globalized, Twitter-ized world, “movements” are advanced not only on the town square and via op-eds, but through social media such as Facebook and blogs. The common goal is to mobilize consensus, whether in local parliaments, regional bodies (such as the Arab League), or international institutions (such as the United Nations).

5 SC Res. 1973, pmbl., para. 4 (Mar. 17,2011) (emphasis omitted) (“Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians”). While not explicitly referring to the international community’s responsibility to protect civilians when a state is unwilling or unable to do so itself, the Security Council implicitly invoked it in authorizing member states, pursuant to Chapter VII, “to take all necessary measures ... to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (op. para. 4); to establish a no-fly zone over Libyan airspace to help protect civilians from aerial bombardment (op. para. 6); and to enhance the arms embargo (op. paras. 13-16) and asset freeze (op. paras. 17-21) approved in Security Resolution 1970. See also SC Res. 1970, pmbl., para. 9 (Feb. 26, 2011) (invoking “the Libyan authorities’ responsibility to protect its population” and authorizing an arms embargo, travel ban, asset freeze, and referral of the situation in Libya to the International Criminal Court).

6 A More Secure World: Our Shared Responsibility: Report of the High-Level Panel on Threats, Challenges and Change, para. 29, UN Doc. A/59/565 (2004) [hereinafter High-Level Panel Report] (emphasis added).

7 Regardless of whether such a requirement is adopted as new hard law or merely continues to be enhanced as soft law or a policy choice, collective action by the international community (or the threat of it) equips the multilateral system with a powerful tool to protect civilians in the context of twenty-first century conflicts.

8 Implementing the Responsibility to Protect: Report of the Secretary-General, para. 11 (a), UN Doc. A/63/677 (2009) (referring to what is considered the most authoritative text on RtoP, the 2005 World Summit Outcome document, GA Res. 60/1, paras. 138-39 (Oct. 24, 2005)).

9 Id., paras. 11(b), (c).

10 For example, the responsibility of individual states to protect their own inhabitants is rooted in the 1949 Geneva Conventions and the Genocide Convention. For broader discussion, see Stahn, Carsten, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?, 101 AJIL 99, 111-15 (2007)Google Scholar.

11 ‘ For a more general conceptual discussion of reinterpreting the UN Charter’s “original bargain” on sovereignty, see Slaughter, Anne-Marie, Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform, 99 AJIL 619, 625 (2005)CrossRefGoogle Scholar.

12 See Stahn, supra note 10, at 112; Stromseth, Jane E., Iraq’s Repression of Its Civilian Population: Collective Responses and Continuing Challenges, in Enforcing Restraint: Collective Intervention in Internal Conflicts 77, 85- 88 (Damrosch, Lori F. ed., 1993)Google Scholar (discussing the Security Council’s response to the repression of civilians under Saddam Hussein’s regime as an example of this transformation).

13 See part II below; Stahn, supra note 10, at 111-12.

14 Doyle, Michael W., Diabetics of a Gbbal Constitution: The Struggle over the UN Charter, EUR. J. Int’l Rel. Google Scholar (epub ahead of print Oct. 17, 2011; quotations from pages 17 and 2, respectively) (noting that the UN Charter shares some characteristics of a constitution).

15 Cf. Ackerman, Bruce & Golove, David, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 873-97 (1995)CrossRefGoogle Scholar (analyzing significant reinterpretation of constitutional text on treaty-making power as a constitutional moment). José Alvarez notes that Rosalyn Higgins anticipated that the Security Council would play a role in reinterpreting the Charter. “Despite the sketchy nature of the relevant UN practice on which she could rely, Higgins was remark ably prescient in recognizing that the [Council] had enormous potential for amending, de facto, the Charter and even for more general forms of law-making.” José Alvarez, International Organizations As Law Makers 185 (2005) (noting also Steve Ratner’s distillation of the Council’s legitimating “authority, including declarative, interpretative, promotion, and enforcement functions.” Id. at 189).

16 UN Charter, Art. 109.

17 The Libyan opposition was not formally recognized as the government at the time. Traditionally, only recognized governments can consent to intervention, and the collective right to self-defense under Article 51 of the UN Charter can be exercised only on behalf of UN member states. But because the Libyan opposition group, the National Transitional Council, controlled at least some territory, had capacity to conduct some foreign relations, and embraced principles supporting democracy and humanitarian law rules, it was increasingly viewed as the legitimate voice of the Libyan people, even before being recognized as a government. I am grateful to José Alvarez, who helped me develop this point.

18 Sunstein, Cass R., Social Norms and Social Rob, 96 Colum. L. Rev. 903, 914 (1996)CrossRefGoogle Scholar.

19 Burke-White, William W., Adoption of the Responsibility to Protect, in Jared Genser & Irwin Cotler, The Responsibility To Protect: The Promise Of Stopping Mass Atrocities In Our Time 17, 34 (2012)Google Scholar.

20 Id. at 30 (also noting that language in Security Council Resolution 1674 reaffirming the operative paragraphs of the 2005 World Summit Outcome Document “falls short of a formal decision requiring that member states implement the Responsibility to Protect,” and that “[m]ere recommendations or affirmations of the Council are presumably not intended to create legal obligations”).

21 Stahn, supra note 10, at 118 (noting, for example, that “it is difficult to imagine what legal consequences non- compliance by a political body like the Security Council should entail”).

22 Thomas M. Franck, The Power of Legitimacy Among Nations (1990); see also Burke-White, supra note 19, at 34-35. Compliance scholars document how hard law (such as stop signs and rules regarding use of force) is often ignored, whereas soft law is often obeyed when viewed as legitimate and fair. Cf. Chris Brummer, How Legitimate Is International Financial Law?, in Soft Law and the Global Financial System: Rule Making in the 21st Century 177 (2012); Shelton, Dinah, Law, Non-law and the Problem of ‘Soft Law,‘ in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Shelton, Dinah ed., 2000)Google Scholar.

23 These trends include (1) the rise and institutionalization of human rights and humanitarian law, (2) the individuation of international responsibility, including criminal responsibility, and (3) the increasingly networked, global nature of nonstate actors, such as multinational corporations, norm entrepreneurs (for example, nongovernmental organizations and celebrity “diplomats”), and criminal actors (for example, terrorists, illicit traffickers, and modern-day pirates). See, e.g., Ruti G. Teitel, Humanity’s Law (2011).

24 Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995) (defining “the new sovereignty” as the right and capacity of states to participate in international institutions that facilitate their members working in concert to achieve certain ends that individual states could once achieve alone).

25 See Slaughter, Anne-Marie, Fiddling While Libya Burns, N.Y. Times, Mar. 13, 2011, at A25 Google Scholar.

26 “Responsibility” is in quotes here to highlight the central dilemma of the failure to see the RtoP’s collective-responsibility prongs as legally binding.

27 Mark Quarterman, Libya as a Multihteral Moment (Mar. 3, 2011), http://csis.org/publication/libya-multilateral-momenr); see also Chayes & Chayes, supra note 24.

28 Ackerman, Bruce, A Generation of Betrayal?, 65 Fordham L. Rev. 1519, 1519 (1996-97)Google Scholar (using this characterization to describe constitutional moment in U.S. domestic constitutional context).

29 Tushnet, Mark, Potentially Misleading Metaphors in Comparative Constitutionalism: Moments and Enthusiasm 3, in Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04 (Weiler, and Eisgruber, eds.), at http://centers.law.nyu.edu/jeanmonnet/archive/papers/04/040501-04.rtf (characterizing Ackerman)Google Scholar.

30 Id.

31 For the broader point, see Ackerman, supra note 28, at 1519.

32 Supra note 5; see Ackerman & Golove, supra note 15, at 883-90 (discussing the importance of “triggering” votes or referenda in “shift[king] the balance of perceived legitimacies . . . away from the constitutional status quo and toward the legitimation of a new question” during constitutional moments. Id. at 886). In the Libyan moment, RtoP was adopted over threatened vetoes by particular Security Council members who ultimately declined to exercise their vetoes and abstained in the final vote, leading to ten affirmative votes and five abstentions (Brazil, China, Germany, India, and Russia).

33 Shaffer, Gregory C. & Pollack, Mark A., Hard vs. Soft Law: Alternatives, Complements, and Antagonists in Inter national Governance, 94 Minn. L. Rev. 706, 709 (2010)Google Scholar.

34 Shaffer, Gregory C. & Pollack, Mark A., Hard Versus Soft Law in International Security, 52 B.C. L. Rev. 1147, 1149 (2011)Google Scholar. I do not want to imply here that soft law agreements and norms never involve hard bargaining; the softness of the outcome sometimes reflects a process of hard bargaining that could not produce a clear consensus or an obligatory commitment.

35 For a discussion of Security Council action in response to apartheid in South Africa, see, for example, Dugard, John, Sanctions Against South Africa: An International Law Perspective, in Sanctions Against Apartheid 113, 113-18 (Orkin, Mark ed., 1989)Google Scholar. Significantly, opposition to apartheid involved a mass (actually, global) political movement, a feature of transformative moments. The global anti-apartheid movement was an important counter to the South African government’s claim that its treatment of black South Africans was an internal, domestic matter, rather than a matter of international concern. Id. On Rhodesia, see Security Council Resolutions 216 (Nov. 12, 1965) and 217 (Nov. 20, 1965).

36 See, e.g., Stromseth, supra note 12, at 85-88 (discussing how concerns typically thought of as human rights and humanitarian matters, such as “a massive flow of refugees towards and across international frontiers,” were seen to be threats to international peace and regional security).

37 See supra note 5.

38 The Responsibility To Protect: Report of the International Commission on Intervention and State Sovereignty (2001), paras. 2.24-.27, available at http://responsibilitytoprotect.org/ICISS%20Report.pdf.

39 Id, para. 2.7.

40 Id, paras. 2.7-2.8.

41 Id, para. 2.11.

42 Id., para. 2.14 (emphasis added).

43 Id.

44 Evans, Gareth, The Responsibility to Protect: Rethinking Humanitarian Intervention, 98 ASIL Proc. 78, 83 (2004)Google Scholar (discussing the ICISS report, as one of the commission’s cochairs).

45 High-Level Panel Report, supra note 6.

46 Id, paras, at 16.

47 Id, para. 29.

48 Id.

49 Slaughter, supra note 11, at 627.

50 High-Level Panel Report, supra note 6, para. 29.

51 Id. (emphasis added).

52 Slaughter, supra note 11, at 620.

53 Id.

54 Id. at 628.

55 High-Level Panel Report, supra note 6, para. 30.

56 Slaughter, supra note 11, at 628.

57 Quarterman, Mark, What Libya Tells Us About the Future of Multilateralism, in Global Forecast 2011: International Security in a Time of Uncertainty 64, 64 (Cohen, Craig & Gabel, Josiane eds., 2011)Google Scholar.

58 While this voting pattern does not necessarily imply that the abstainers agreed normatively with RtoP, it is typical of situations in which transformations occur; despite potential objections, it is difficult to resist the movement for change. Cf. Ackerman & Golove, supra note 15, at 885-86, 895—96.

59 Slaughter, supra note 11, at 628.

60 Id. at 625.

61 Id. at 626.

62 Id. at 620. Although the report can surely be understood in this way, one should also note that the Security Council itself previously confronted numerous situations in which it could well have expanded, but did not expand, its normative reach by authorizing intervention.

63 UN Doc. A/59/2005 & annex (2005).

64 2005 World Summit Outcome, supra note 8, paras. 138-39.

65 SC Res. 1674, op. para. 4 (Apr. 28, 2006).

66 SC Res. 1706, pmbl., para. 2 (Aug. 31, 2006).

67 Id., op. para. 12(a); see also Early Warning, Assessment and the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/64/864 (2010).

68 See Burke-White, supra note 19, at 32 (noting resistance from Cuba, Ecuador, Iran, Nicaragua, Sudan, Syria, and Venezuela). For a more in-depth discussion of various state views, see UN Press Release, More Than 40 Delegates Express Strong Skepticism, Full Support as General Assembly Continues Debate on Responsibility to Protect (July 24, 2009), at http://www.un.org/News/Press/docs/2009/gal0849.doc.htm. The very fact of this resistance makes it all the more significant that the Security Council invoked RtoP and authorized use of force in Libya. Since the Libya intervention, however, Brazil has introduced the notion of “responsibility while protecting,” emphasizing, inter alia, military intervention as a last resort and the proportionate use of force if force is necessary. See Letter Dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations Addressed to the Secretary-General, UN Doc. A/66/551-S/2011/701.

69 The Responsibility to Protect, supra note 38, at xi.

70 Id, para. 4.3.

71 Id. at xi.

72 Id., para. 4.18.

70 Id., para. 4.19.

74 This reality—along with the fact that at least two of the conditions identified above (Security Council authorization and arguably reasonable prospects) are not at present clearly met in Syria—may account, in part, for the different approach that the international community has taken so far to Syria and Libya. While a fuller comparison is beyond the scope of this comment, RtoP can be pursued through means other than military intervention.

75 As President Obama noted in his May 19, 2011, speech on the changes sweeping the Middle East and North Africa:

There are times in the course of history when the actions of ordinary citizens spark movements for change because they speak to a longing for freedom that has been building up for years. In America, think of the defiance of those patriots in Boston who refused to pay taxes to a King, or the dignity of Rosa Parks as she sat courageously in her seat. So it was in Tunisia, as that vendor’s act of desperation tapped into the frustration felt throughout the country.

Text: Obama’s Mideast Speech, N.Y. Times, May 19, 2011, at http://www.nytimes.com/2011/05/20/world/middleeast/20prexy-text.html?.

76 Military Action Against Qaddafi Is Backed by U.N., N.Y. Times, Mar. 18, 2011, at Al.

77 Id. Even assuming that Qaddafi had intended to distinguish armed combatants from civilians, “no mercy” for combatants violates common Article 3 of the 1949 Geneva Conventions. Thanks to Michael Doyle for helpful clarification in this context.

78 The diplomats included the Libyan ambassadors to regional organizations such as the Arab League, European Union, and United Nations, and to Bangladesh, Belgium, China, France, India, Indonesia, Malaysia, Nigeria, Poland, Portugal, Sweden, and the United States. As regards Libya’s ambassador to the United States, see Marc Fisher, Diplomat Recalls the ‘Strange’ Gaddafi: Ambassador Aujali Worked Years for Dictator Until Denouncing His Cruelty, Wash. Post., Dec. 25, 2011, at Cl (explaining that “five days after Libyans first took to the streets for a Day of Rage protest against the regime, [Libyan U.S. ambassador Ali] Aujali quit [and] went on TV to say he would no longer serve a government that used deadly force against people peacefully expressing their views”).

79 Scicluna, Christopher & Abdallah, Diana, Two Libyan Fighter Pilots Defect, Fly to Malta, Feb. 21, 2011, at http://www.reuters.com/article/2011/02/21/us-libya-protests-malta-idUSTRE71K52R20110221.Google Scholar

80 Edith M. Lederer, UN Agrees to Meet Saturday on Libya Sanctions, Feb. 26, 2011, at http://www.guardian.co.uk/world/feedarticle/9519101.

81 Bill Chappell, Libyan Ambassador Denounces Gadbafiat U.N. (Feb. 25, 2011), at http://www.npr.org/blogs/thetwo-way/201l/02/25/134069630/libyan-ambassador-denounces-gadhafi-at-u-n?ft=l&f=1001.

82 Immediately before the Human Rights Council adopted a resolution criticizing Libya,

[t]he delegation from Libya asked for a moment of silence for all those who had died in the country in the past weeks. Libya asked the members of the [Organisation of Islamic Cooperation] to stand for a moment to read from the Koran in memory of the martyrs that died in the 15 February revolution. Libya said that history had shown that the will of the people was invincible and the memory of people was stronger than those who bore hatchets. The Libyan people, the grandchildren of the heroes of the Italian fascist revolution, were now writing a new chapter in the struggle against oppression. The delegation emphasized that the Libyan mission has decided to represent and serve the Libyan people and not the regime.

UN Press Release, Human Rights Council Passes Resolution on Libya in Special Session (Feb. 25,2011), at http:www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10768&LangID=E.

83 Statement by the NATO Secretary General on Events in Libya (Feb. 21, 2011), at http://www.nato.int/cps/en/natolive/news_70731.htm?selectedLocale=en.

84 European Union Declaration by High Representative for Foreign Affairs and Security Policy, Catherine Ashton, on Libya (Feb. 23, 2011), at http://www.eu-un.europa.eu/articles/fr/article_10704_fr.htm.

85 Communique of the 265th Meeting of the Peace and Security Council of the African Union, AU DOC. PSC/PR/COMM.2(CCLXV) (Mar. 10, 2011), at http://www.au.int/en/sites/default/files/COMMUNIQUE_EN_10_MARCH_2011_PSD_THE_265TH_MEETING_OF_THE_PEACE_AND_SECURITY_COUNCIL_ADOPTED_FOLLOWING_DECISION_SITUATION_LIBYA.pdf.

86 Kareem Shaheen, GCC Wants No-Fly Zone over Libya (Mar. 8,2011) at http://www.thenational.ae/news/uaenews/politics/gcc-wants-no-fly-zone-over-libya.

87 Organisation of the Islamic Conference [now Organisation of Islamic Cooperation], Ihsanoglu Support No-Fly Decision at OIC Meeting on Libya, Calls for an Islamic Humanitarian Programme in and Outside Libya (Mar. 8, 2011) (quoting Ekmeleddin Ihsanoglu, secretary general of the organization) (emphasis added) (on file with author).

88 The Outcome of the Council of the League of Arab States Meeting at the Ministerial Level in Its Extraordinary Session on the Implications of the Current Events in Libya and the Arab Position, Res. No. 7360, op. para. 1 (Mar. 12, 2011) (emphasis added).

89 Id., op. para. 2.

90 Id., pmbl., para. 3.

91 Id., pmbl., paras. 3, 4; id., op. para. 4.

92 SC Res. 1970, ¿и/>га: note 5, pmbl., para. 9; SC Res. 1973, supra note 5, pmbl., para. 4.

93 SC Res. 1973, op. para. 4.

94 Id., pmbl., para. 10.

95 Id., pmbl., para. 12.

96 Id., op. para. 5.

97 Other related multilateral responses to the Libyan crisis include the appointment of a special envoy on Libya by the UN secretary-general, the establishment of an independent, international commission of inquiry by the UN Human Rights Council, and a probe undertaken by UN Special Rapporteur on Torture Juan Méndez to investigate allegations that Qaddafi’s forces abducted, tortured, and executed opponents.

98 There may be a tension between the understanding of a broader constitutional or transformative moment as one involving impartiality—that is, an ability to act without regard to one’s own interests (discussed in part I above)—and the argument made here that the multilateral institutions help states understand their own (long-term) interests differently so as to incentivize collective action (for example, in the Libyan context). Thanks go to Vicki Jackson for noting this theoretical tension.

99 This point draws on the notion of “smart power.” See, e.g., Suzanne Nossel, Smart Power, 83 Foreign Aff. 131,131-41 (2004); Jr.Nye, Joseph S., Soft Power: The Means To Success In World Politics xiii, 32, 147 (2004)Google Scholar.

100 Though nothing presented here depends upon a constructivist approach to international relations, that approach provides one potential way of understanding or interpreting the argument presented here. On a constructivist approach, states’ interests “are not just ‘out there’ waiting to be discovered; they are constructed through social interaction.” Martha Finnemore, National Interests in International Society 2 (1996). In response to realist approaches, constructivists emphasize that “the fundamental structures of international politics are social rather than strictly material. . . and that these structures shape actors’ identities and interests.” Wendt, Alexander, Constructing International Politics, 20 Int’l Security 71, 71-72 (1995)CrossRefGoogle Scholar; see also Ruggie, John Gerard, What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge, bl Int’l Org. 855 (1998)CrossRefGoogle Scholar.

101 Gadhafi Vows to Fight to “Last Drop of Blood,“ NPR, Feb. 22, 2011, at http://www.npr.org/2011/02/23/133958400/witnesses-report-bodies-in-streets-of-libyan-capital (referring to a February 22, 2011, Arab League statement).

102 Because of the historical importance of this Libyan moment, I am trying to bring into focus one particular, core political dynamic. Other factors were at work. Of special note was that Qaddafi had fallen out of favor with Arab states several years earlier. Even so, African states, as well as the African Union, were more skeptical of intervention, partly in view of Qaddafi’s longtime cultivation of African states. South Africa quickly backpedaled on its positive Security Council vote following Resolution 1973. Since then, China, India, and Russia have expressed concerns that the Libya intervention went beyond the mandate. As a result, some observers note that the aftermath of the Libyan moment and its invocation of RtoP have compromised efforts to find unity on Syria. Thanks to Michael Doyle for encouraging me to note this broader context.

103 It is also possible that the case of Libya is an aberration, but such a claim seems implausible since it will be hard to put the genie of RtoP back in the bottle. Colum Lynch, The U.N. ‘s Tough Standon Qaddafi: Exception or Rule? (Mar. 7, 2011), at http://turtlebay.foreignpolicy.com/posts/201l/03/07/the_uns_tough_stand_on_qaddafi_exception_or_rule. Compare Lynch’s “The council’s action constituted one of those rare ‘moments of clarity’ . . . when the council advances, or reinforces, a set of new moral standards [,]” paraphrasing Edward Luck, the United Nations’ special adviser for the responsibility to protect, with another paraphrase of Luck that “the forceful response to Libya ‘is quite remarkable [compared to the response to the 1994 Rwandan genocide], but not easily replicated in the future’ “). See also id. (“Mauritius, speaking on behalf of the African Union, cautioned that the move to isolate Qaddafi’s government should not be seen as a precedent”).

104 Burke-White, supra note 19, at 35 (cautioning that “[m]oving too fast [toward legal codification of RtoP] risks undermining th[e] consensus [that is emerging] as some states [could] step back from forward-leaning rhetorical positions to avoid legal codification”).