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Global constitutionalism and the responsibility to protect

Published online by Cambridge University Press:  26 October 2015

BLAGOVESTA TACHEVA  and
GARRETT WALLACE BROWN
BLAGOVESTA TACHEVA*
Affiliation:
Department of Politics, University of Sheffield, Northumberland Road, Sheffield, S10 2TU
GARRETT WALLACE BROWN*
Affiliation:
Department of Politics, University of Sheffield, Northumberland Road, Sheffield, S10 2TU
*
*Email: [email protected]; [email protected]
*Email: [email protected]; [email protected]
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Abstract

There is recent scholarship suggesting that the Responsibility to Protect (R2P) has now emerged as a master concept in relation to responding to mass atrocity crimes and that the R2P can further be seen as representative of an emerging global constitutional norm. In critical response, this article provides the first attempt to systematically investigate R2P’s relationship with global constitutionalisation as well as to explore its wider implication with regard to global constitutionalism. In doing so, the article examines existing discussions of R2P and global constitutionalism, tracks the normative evolution of R2P in order to determine its current ‘stage’ of norm diffusion, and further attempts to locate the extent to which the R2P can be perceived as also part of a process of global constitutionalisation. From this analysis the article concludes that although the R2P could be labelled as, at best, a weak emerging norm, it fails to meet the more demanding signifier of an emerging constitutional norm and that there is further evidence to suggest that the R2P might be better understood as a stalled or degenerating norm.

Keywords

degenerating normglobal constitutionalisationglobal constitutionalismnorm diffusionresponsibility to protect
Type
Research Article
Information
Global Constitutionalism , Volume 4 , Issue 3 , November 2015 , pp. 428 - 467
Copyright
Copyright © Cambridge University Press 2015 

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References

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32 See (n 23) 155, 185. Furthermore, as Peters underscores ‘the ongoing process of rendering sovereigns responsible is a cornerstone of the current transformation of international law into a constitutionalized system’. See (n 23) 190.

33 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre, Ottawa, 2001) paras 1.35, 2.15.

34 See (n 23) 187; for a detailed account of the emergence of the international community see (n 24) 31, 61.

35 See (n 23) 189.

36 See (n 23) 187. For instance, Peters associates the internal responsibility with Lockean liberal constitutionalism, with the only difference being that states have a responsibility to protect all individuals within their territory, whereas in the classic understanding of the social contract this duty is owed to the state’s citizens. See also Buchan (n 24) 185–6.

37 Peters (n 23) 187.

38 United Nations, ‘Implementing the Responsibility to Protect’, Report of the UN Secretary-General, Ban Ki-moon, A/63/677 (12 January 2009) 2, 8–10.

39 See (n 15) 384, 386–7.

40 See (n 6) 62.

41 Luke Glanville goes further to suggest that the idea of sovereignty has always included a corresponding responsibility to protect its own citizens as a condition of that sovereignty and therefore the R2P does nothing more than to explicitly articulate a notion that has always been coupled with legitimate sovereignty from its inception by Bodin and Hobbes. See Glanville, L, Sovereignty and the Responsibility to Protect: A New History (University of Chicago Press, Chicago, IL, 2014).Google Scholar

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49 See Bellamy’s quote (n 6).

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51 Norm socialisation is commonly conceptualised as the process by which principled ideas held by individuals become norms that can then influence a transformation of interests, identities and behaviours with the ultimate goal for states to internalise them, so as to guarantee compliance in the absence of external pressure, see Risse, T and Sikkink, K ‘The Socialisation of International Human Rights Norms into Domestic Practices’ in Risse, T, Sikkink, K and Ropp, SC (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, Cambridge, 1999) 11.Google Scholar Others define socialisation as the ‘induction of new members [...] into the ways of behaviour that are preferred in a society’, see Barnes, J, Carter, M and Skidmore, M, The World of Politics (St Martin’s Press, New York, NY, 1980) 35.Google Scholar What makes this definition particularly relevant to the discussion of the R2P is that it presupposes the existence of a society. At the global level, this understanding of socialisation is intelligible within the confines of the international system described as a society of states, see Bull, H, The Anarchical Society: A Study of Order in World Politics (Columbia University Press, New York, NY, 1977).CrossRefGoogle Scholar In this sense, norm socialisation is the mechanism through which states become recognised as members of the society of states, see Risse and Sikkink (above) 11.

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54 See (n 33) para 8.1.

55 Ibid.

56 Ibid VIII.

57 Luban describes the principle of non-intervention (‘each state has a duty of non-intervention into the affairs of other states’) as the corollary of sovereignty. Luban, D, ‘Just War and Human Rights’ (1980) 9 Philosophy and Public Affairs 164.Google Scholar

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59 Ibid para 6.28.

60 See (n 24) 67.

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62 See (n 33) XIII, 51.

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65 Ibid.

66 Ibid para 138.

67 Ibid para 139; see (n 19) 99–120.

68 See (n 64) para 139. A testimony that this is an accurate reading of the Outcome Document’s provisions is the overlap with the position of UN Secretary-General Ban Ki-moon, asserting that ‘The Charter gives the Security Council a wide degree of latitude to determine the most appropriate course of action. The council should continue to respond flexibly to the demands of protecting populations from crimes and violations relating to RtoP’ (my emphasis): UN Secretary-General’s Report, ‘Responsibility to Protect: Timely and Decisive Response’, UN Doc A/66/874-S/ 2012/ 5787 (25 July 2012). This position is advocated by Stahn who brings attention to a letter by the Secretary of State to Jon Bolton, released shortly after the Summit, elucidating that the United States would ‘not accept that either the United Nations as a whole or the Security Council, or individual states, have an obligation to intervene under international law.’: Quoted in (n 19) 108. The understanding that the UN merely possess a discretionary right to intervene is affirmed by Buchan, who refers to the Libyan crises to suggest that once the Libyan government violated its responsibility to protect, the UNSC did not see it as passing to itself.: See (n 24) 69.

69 See (n 64) para 139. Emphasis added.

70 The manifest state failure requirement effectively ruled out the possibility for preventative action by reaffirming that the UNSC can only sanction intervention to halt an enduring crisis. Unfavourably, this solidified R2P’s link with ‘military humanism’. See Chomsky, N, The New Military Humanism: Lessons from Kosovo (Pluto Press, London, 1999).Google Scholar

71 See (n 15) 375.

72 See (n 6) 16.

73 See (n 15) 374.

74 See (n 6) 14.

75 See also (n 15) 375–6.

76 Ibid 377.

77 Ibid.

78 See (n 14) 229.

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81 UN Security Council Resolution 1674, ‘Protection of civilians in armed conflict’, S/RES/1674 (August 2006): ‘reaffirms the provisions of paragraphs 138 and 139 of the World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’; UN Security Council Resolution 1706, ‘Reports of the Secretary-General on the Sudan’, S/RES/1706 (August 2006).

82 See Evans (n 1) 52.

83 Ibid 126.

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86 Constitutive Act of the African Union, Lomé Summit (7 November 2000).

87 See (n 84).

88 See (n 38) 2. The report envisions that each of R2P’s three supporting pillars is equally important and that ‘there is no set sequence to be followed from one pillar to another’ when it comes to implementation: at 2.

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91 Ibid 27.

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93 Ibid 116.

94 Ibid.

95 Ibid 113. See (n 84).

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98 Nossal, KR, ‘The Use—and Misuse—of R2P: The Case of Canada’ in Hehir, A and Murray, R (eds), Libya, The Responsibility to Protect and the Future of Humanitarian Intervention (Palgrave Macmillan, London, 2013) 124.Google Scholar

99 Ibid 125.

100 See S Adams, ‘Emergent Powers: India, Brazil, South Africa and the Responsibility to Protect’ (14 September 2012) available at <http://www.globalr2p.org/media/files/adams-r2p-ibsa-1.pdf>, accessed 14 August 2014. For South Africa see F Aboagye, ‘South Africa and the R2P: More State Sovereignty and Regime Security Than Human Security’ in Brosig, The Responsibility to Protect – From Evasive to Reluctant Action? The Role of Global Middle Powers (n 22).

101 Scholars such as Bellamy, Dunne, Glanville and Weiss have argued that although the BRICS may not be actively supporting the R2P, they have not formally rejected it either, which suggests that although weakened, the R2P is certainly not dead. For a critique and claim that this signals the death of the R2P, see C Keeler, ‘The End of the Responsibility to Protect?’ (12 October 2011) available at <http://www.foreignpolicyjournal.com/2011/10/12/the-end-of-the-responsibility-to-protect/>, accessed 14 August 2014.

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104 While Cuba, Venezuela and Pakistan continued to express strong objections to R2P, the majority of statements recognised that R2P had evolved from a controversial concept into a norm that had become an ‘operational reality’. See <http://www.globalr2p.org/resources/341>, accessed 11 May 2014.

105 Importantly, member states further agreed that the responsibility is rooted in international law, that the four mass atrocity crimes are the only triggers for R2P action and can be interpreted as ‘threats to international peace and security’ under Chapter VII, allowing for SC action; that the R2P supports sovereignty.

106 See (n 84) 108.

107 See Finnemore and Sikkink (n 50) 888.

108 Ibid 904.

109 Ibid 890, 895.

110 Serrano, M and Weiss, TG, ‘Introduction: Is R2P ‘‘Cascading’’?’ in Serrano, and Weiss, (eds), The International Politics of Human Rights: Rallying to the R2P Cause? (Routledge, New York, NY, 2014) 14.Google Scholar

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112 See (n 15) 378–9.

113 EC Luck, ‘Foreword’ in Serrano and Weiss, The International Politics of Human Rights: Rallying to the R2P Cause? (n 110) xiv.

114 See Risse and Sikkink (n 51) 21–31.

115 Ibid 19.

116 See (n 92) 114. See also Badescu, C and Weiss, T, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ (2010) 11 International Studies Perspectives 359.Google Scholar

117 See (n 92) 110.

118 Ibid 116. See also Badescu and Weiss (n 116) 355.

119 See (n 92) 116.

120 See Badescu and Weiss (n 116) 359.

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126 Ibid.

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128 See (n 10) 341.

129 See (n 15) 395.

130 Ibid.

131 See (n 45) 205.

132 Ibid; See also Milewicz, K, ‘Emerging Patterns of Global Constitutionalization: Toward a Conceptual Framework’ (2009) 16 Indiana Journal of Global Legal Studies 413–14.Google Scholar

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136 See (n 10) 341.

137 Ibid.

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139 See Milewicz (n 132) 427.

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142 See (n 140) 96.

143 Ibid 89.

144 Haltern, U, ‘Pathos and Patina: The Failure and Promise of Constitutionalization in the European Imagination’ (2003) 9 European Law Journal 15.Google Scholar Quoted in Brown (n 45) 207.

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146 Unlike the national legal systems, where there is a clear hierarchy of law embedded in their constitutions, international law is premised upon a system of horizontal rules that are binding upon states only insofar as they consent to be bound by them.

147 In respect to jus cogens see Vienna Convention on the Law of Treaties, 23 May 1969 (entered into force 27 January 1980) 1155 UNTS 331, reprinted in 8 ILM 679 (1969) art 53; see also A/CN.4/L.682, para 365.

148 See Barcelona Traction, Light and Power Company, Limited, Second Phase (Belgium v Spain) ICJ Rep (1970) 32, para 33.

149 de Wet, E, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 612–13.Google Scholar It is important to clarify the meaning here. ‘Without immediate consent’ refers to a state’s willingness or unwillingness to comply with international norms and the legitimate legal authority not to do so. This relates to cases where states have been signatories to existing international conventions, but resist compliance, or in cases where states have not been signatories, but are nevertheless held to account in relation to existing legal norms. In either case, a form of constitutionalism is being established, since it could be argued that a hierarchy exists, in which state compliance is demanded with or without its current consent and despite any immediate claims to sovereign self-determination that fly in the face of international norms.

150 Ibid 613; see also Ghouri, AA, ‘Determining Hierarchy between Conflicting Treaties: Are There Vertical Rules in the Horizontal System?’ (2012) 2 Asian Journal of International Law 235.Google Scholar

151 UN Secretary-General’s Report, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ UN Document A/68/947–S/2014/449 (11 July 2014) para 12.

152 See (n 45) 205.

153 See (n 134) 1008.

154 Ibid 1009.

155 See (n 45) 206.

156 See Risse and Sikkink (n 51) 13.

157 Ibid 16.

158 United Nations, Statute of the International Court of Justice, 26 June 1945, art 38(1).

159 Guzman, A and Meyer, T, ‘Customary International Law in the 21st Century’ in Miller, R and Bratspies, R (eds), Progress in International Law (Martinus Nijhoff, Leiden, 2008) 199.Google Scholar See also Guzman, A and Meyer, T, ‘International Common Law: The Soft Law of International Tribunals’ (2009) 9 Chicago Journal of International Law 526.Google Scholar

160 See (n 6) 12.

161 See (n 5). This is evident by the fact that there is still considerable debate about whether Darfur equates to genocide.

162 One reviewer suggested that the genocide norm is actually very demanding in its call for action (thus has strong normative imperative as an action guiding principle). The suggestion was that its failure to be invoked relates to political and legal rationales, where certain states shy from the demanding normative commitments that invoking the Convention would then trigger. For the reviewer, this illustrates a distinction between effectiveness versus action guiding. Nevertheless, the result of inaction is the same, and in some ways the reviewer’s point strengthens our argument, since it illustrates that there is acceptance that this is a powerful norm as the ‘crime of crimes’ which demands action, while at the same time there is an unwillingness (for whatever reasons) to allow it to be action guiding in a way that bolsters a sense of global constitutionalism and a global ‘rule of law’. As it stands, the Genocide Convention, much like the R2P, has endorsement as an emerging norm, but this has not translated into implementation or action.

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165 Ibid 201; United Nations Security Council Resolution, S/RES/1244 (10 June 1999).

166 See (n 164) 201.

167 Ibid.

168 Ibid 187.

169 Ibid.

170 See Evans (n 1) 54.

171 Ibid.

172 See (n 15) 395.