The Evolving Discourse on Human Protection
2010; Taylor & Francis; Volume: 29; Issue: 2 Linguagem: Inglês
10.1080/0731129x.2010.504423
ISSN1937-5948
AutoresGeorge Andreopoulos, Leonid Lantsman,
Tópico(s)War, Ethics, and Justification
ResumoClick to increase image sizeClick to decrease image size Notes 1 [This collection of essays is based on papers presented at a workshop on “The Ethics of Intervention/Protection: Contending Approaches” jointly organized by the Center for International Human Rights (CIHR) and the Institute of Criminal Justice Ethics (ICJE) which was held at John Jay College of Criminal Justice, January 21–22, 2010. I would like to thank my colleague John Kleinig, Director of ICJE for all his work on this project and for his kind invitation to me to serve as guest editor for this special issue of the Journal, and to Maria Victoria Perez-Rios, Margaret Smith and Leonid Lantsman for their invaluable assistance with all aspects of this project. Last, but not least, my thanks to all the participants who contributed to the deliberations of our 2-day session. GA] See Richard Lillich, ed., Humanitarian Intervention and the United Nations (Charlottesville, VA: University Press of Virginia, 1973); Thomas M. Frank and Nigel S. Rodley, “After Bangladesh: The Law of Humanitarian Intervention by Military Force,” American Journal of International Law 67 (1973): 275–305; and Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia: University of Pennsylvania Press, 1996). 2 A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges, and Change (New York: United Nations, 2004): 66. 3 See Antoine Rougier, “La théorie de l'intervention d'humanité,” Revue Générale de Droit International Public 17 (1910): 468–526; and Ellery C. Stowell, Intervention in International Law (Washington, DC: John Byrne and Co., 1921). 4 Michael Reisman, with the collaboration of Myres S. McDougal, “Humanitarian Intervention to Protect the Ibos,” in Lillich, Humanitarian Intervention and the United Nations, 178; see also Murphy, Humanitarian Intervention. 5 Independent International Commission on Kosovo, Kosovo Report (New York: Oxford University Press, 2000); Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (New York: Oxford University Press, 2002). 6 Vaughan Lowe, “International Legal Issues Arising in the Kosovo Crisis,” Memorandum submitted to the Foreign Affairs Committee, House of Commons, February 2000. 7. Derek W. Bowett, “Economic Coercion and Reprisals by States,” Virginia Journal of International Law 13, no. 1 (1972): 1–12; Arthur C. Helton, “Forced Displacement, Humanitarian Intervention, and Sovereignty,” SAIS Review 20, no. 1 (2000): 61–86; Arthur C. Helton and Robert P. Devecchi, “Human Rights, Humanitarian Intervention and Sanctions,” Council on Foreign Relations, available at: http://www.foreignpolicy2000.org/library/issuebriefs/IBHumanRights.html 8 Lori Fisler Damrosch, ed., Enforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations Press, 1993); John Stremlau, Sharpening International Sanctions: Toward a Stronger Role for the United Nations (Washington, DC: Carnegie Commission on Preventing Deadly Conflict, 1996); Richard Haass, “Sanctioning Madness,” Foreign Affairs 76, no. 6 (1997): 74–85. 9 Lillich, Humanitarian Intervention and the United Nations, 43 and 46. 10 Murphy, Humanitarian Intervention, 16. 11 Murphy, Humanitarian Intervention, 15. On this see also Michael J. Bazyler, “Reexamining the Doctrine of Humanitarian Intervention in the Light of the Atrocities in Kampuchea and Ethiopia,” Stanford Journal of International Law 23 (1987): 547–619. 12 Wheeler, Saving Strangers, 38 13 Alex Bellamy, “Motives, Outcomes, Intent and the Legitimacy of Humanitarian Intervention,” Journal of Military Ethics 3, no. 3 (2004): 216–32. 14 United Nations, Charter of the United Nations, October 24, 1945, 1 UNTS XVI, available at: http://www.unhcr.org/refworld/docid/3ae6b3930.html (accessed June 3, 2010). 15 International Court of Justice, Corfu Channel Case (United Kingdom v. Albania); Assessment of Compensation, 15 XII 49, December 15, 1949, available at: http://www.unhcr.org/refworld/docid/402398c84.html (accessed June 3, 2010). 16 International Court of Justice, Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, June 27, 1986, available at: http://www.unhcr.org/refworld/docid/4023a44d2.html (accessed June 3, 2010). 17 Jus Cogens denotes a peremptory norm of general international law. As defined in Article 53 of the 1969 Vienna Convention on the Law of Treaties, it is “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Vienna Convention on the Law of Treaties, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf 18 Murphy, Humanitarian Intervention, 20. 19 Murphy, Humanitarian Intervention, 24. 20 Myres McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven: Yale University Press, 1961). 21 W. Michael Reisman, “Unilateral Action and the Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention,” European Journal of International Law 11 (2000): 3–18. 22 Richard A. Falk, “Casting the Spell: The New Haven School of International Law,” The Yale Law Journal 104 (1995): 2001. 23 Oscar Schachter, “The Legality of Pro-Democratic Invasion,” American Journal of International Law 78 (1984): 646. 24 Reisman with the collaboration of Myres S. McDougal, “Humanitarian Intervention to Protect the Ibos,” in Lillich, Humanitarian Intervention and the United Nations, 171. 25 Fernando Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (New York: Transnational Publishers, 1988). 26 Richard Falk, “Kosovo, World Order, and the Future of International Law,” American Journal of International Law 93 (1999): 848. 27 Richard Falk, “Kosovo, World Order, and the Future of International Law,” American Journal of International Law 93 (1999): 856. 28 Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law 10 (1999): 22. 29 Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law 10 (1999): 22. 30 Antonio Cassesse, “Ex iniura ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?” European Journal of International Law 10, no. 1 (1999): 24. 31 Peter Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?” European Journal of International Law 12, no. 3 (2001): 463. 32 Michael Byers and Simon Chesterman, “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law,” in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, ed. J. L. Holzgrefe and Robert Keohane (Cambridge, UK: Cambridge University Press, 2003), 202–203. 33 Jonathan I. Charney, “NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo,” American Journal of International Law 93 (1999): 834–41. 34 Jonathan I. Charney, “NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo,” American Journal of International Law 93 (1999): 25. 35 Murphy, Humanitarian Intervention, 278–79; Ruth Gordon, “Humanitarian Intervention by the United Nations: Iraq, Somalia, and Haiti,” Texas International Law Journal 31 (1999): 43–56; Fernando Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, 2nd ed. (Irvington-on-Hudson, NY: Transnational Publishers, 1997), 225. 36 U.N. Security Council, Resolution 788 (1992) Adopted by the Security Council at its 3138th meeting, on 19 November 1992, S/RES/788 (1992), available at: http://www.unhcr.org/refworld/docid/3b00f16e4.html (accessed June 9, 2010). (“Commends ECOWAS for its efforts to restore peace, security, and stability in Liberia.”) 37 U.N. Security Council, Resolution 1162 (1998) Adopted by the Security Council at its 3872nd meeting, on 17 April 1998, S/RES/1162 (1998), available at: http://www.unhcr.org/refworld/docid/3b00f16024.html (accessed June 9, 2010). (“Commends the Economic Community of West African States (ECOWAS) and its Military Observer Group (ECOMOG), deployed in Sierra Leone, on the important role they are playing in support of the objectives related to the restoration of peace and security.”) 38 Louis Henkin, “Kosovo and the Law of ‘Humanitarian Intervention,’” American Journal of International Law 93 (1999): 826. 39 “Since the General Assembly and the Security Council are often far from the scenes of conflicts and may not be in a position to undertake effectively a proper appreciation of the nature and development of conflict situations, it is imperative that Regional Organisations, in areas of proximity to conflicts, are empowered to take actions in this regard. The African Union agrees with the Panel that the intervention of Regional Organisations should be with the approval of the Security Council; although in certain situations, such approval could be granted ‘after the fact’ in circumstances requiring urgent action. In such cases, the UN should assume responsibility for financing such operations.” See African Union, Executive Council, “The Common African Position on the Proposed Reform of the United Nations: The Ezulwini Consensus,” Ext/EX.CL/2 (VII), 7th Extraordinary Session, Addis Ababa, Ethiopia, March 7–8, 2005, available at: http://responsibilitytoprotect.org/AU_Ezulwini%20Consensus.pdf 40 Sir Michael Wood, “The Security Council and the Use of Force,” 3rd Lecture, The Hersch Lauterpacht Memorial Lectures: The UN Security Council and International Law (Lauterpacht Center for International law, Cambridge University, November 9, 2006), para. 30,available at http://www.lcil.cam.ac.uk/Media/lectures/pdf/2006_hersch_lecture_3.pdf 41 United Nations, A More Secure World: Our Shared Responsibility, 85. 42 Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict (Cambridge, UK: Polity Press, 1996), 57. 43 We are referring to realists and neorealists here. Although there are some differences between them, these do not relate to the debate on humanitarian intervention. 44 Hans Morgenthau, “To Intervene or Not to Intervene,” Foreign Affairs 45, no. 3 (1967): 425–36. 45 Wheeler, Saving Strangers, 30. 46 Richard K. Betts, “The Delusion of Impartial Intervention,” Foreign Affairs 73, no. 6 (1994): 31–32. 47 Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1992), 107. The “shock the conscience of mankind” criterion goes back to Lassa Oppenheim and his classic treatise on international law. Lassa Oppenheim, International Law: A Treatise, vol. I, 8th ed., H. Lauterpacht, ed. (London, UK: Longmans, Green and Co., 1955), 312. 48 Walzer, Just and Unjust Wars, 101. 49 Michael Walzer, “The Argument about Humanitarian Intervention,” Dissent (Winter 2002): 30. 50 Michael Walzer, “The Argument about Humanitarian Intervention,” Dissent (Winter 2002): 33. This is clearly an argument consistent with realism. 51 Peter Singer, One World: The Ethics of Globalization (New Haven, CT: Yale University Press, 2002), 138–39. 52 There are two conceptions of international society in the international society school: the pluralist and the solidarist. The former places emphasis on a set of common and fixed principles for state interaction that relate to security and coexistence, the most important being sovereignty and non-intervention. The latter emphasizes the malleability of principles for interaction that are not confined to states, but encompass sub-state entities, including individuals and activist networks. The solidarist conception places emphasis on the rights and duties of individuals as opposed to those of states. See Nicholas J. Wheeler and Timothy Dunne, “Hedley Bull's Pluralism of the Intellect and Solidarism of the Will,” International Affairs 72, no. 1 (1996): 94–95. Towards the end of his life, Bull became increasingly concerned with the need to develop the solidarist elements in international society. 53 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: MacMillan, 1977), 96–97. He then goes on to note, “World order, or order in the great society of all mankind, is similarly the condition of realization of goals of human or of cosmopolitan justice; if there is not a certain minimum of security against violence, respect for…goals of political, social and economic justice for individual men…can have no meaning” (97). 54 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: MacMillan, 1977), 96–97. He then goes on to note, “World order, or order in the great society of all mankind, is similarly the condition of realization of goals of human or of cosmopolitan justice; if there is not a certain minimum of security against violence, respect for…goals of political, social and economic justice for individual men…can have no meaning” (97). See also Wheeler, Saving Strangers, 28–29. 55 Instructive here is Bull's discussion of the changing perceptions on the legitimacy of national liberation struggles. Ibid., 98. 56 “World order is more fundamental and primordial than international order because the ultimate units of the great society of all mankind are not states…. but individual human beings.” Ibid., 22. 57 Wheeler and Dunne, “Hedley Bull's Pluralism of the Intellect and Solidarism of the Will,” 91–107. 58 Wheeler, Saving Strangers, 11. 59 See Martha Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force (Ithaca: Cornell University Press, 2003), 54 and 56. 60 Ronald Jepperson, Alexander Wendt, and Peter J. Katzenstein, “Norms, Identity, and Culture in National Security,” in The Culture of National Security: Norms and Identity in World Politics, ed. Peter J. Katzenstein (New York: Columbia University Press, 1996), 33–75. The emphasis on norms is one of the key commonalities between the international society school (especially its solidarist conception) and the constructivist school. 61 Finnemore, The Purpose of Intervention, 57. 62 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), para. 1.10. 63 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), para. 1.35. 64 Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect,” Foreign Affairs 81, no. 6 (2002): 101. 65 We are referring here to the Responsibility to Protect report (2001) and to the A More Secure World report (2004). 66 The response to Darfur, a case that necessitates R2P-related action, undermines such claims; Russia's protection claims in the case of its intervention in Georgia demonstrate R2P's vulnerability to abuse, a problem that R2P shares with HI; last, but not least, the case of Burma/Myanmar was not considered by U.N. officials as a case in which R2P might be applicable. 67 For contending approaches on this, see Roger Cohen, “How Kofi Annan Rescued Kenya,” The New York Review of Books, August 14, 2008; Edward Luck, “The United Nations and the Responsibility to Protect” (policy analysis brief, The Stanley Foundation, August 2008); and David Chandler, “Unravelling the Paradox of ‘The Responsibility to Protect,’” Irish Studies in International Affairs 20 (2009): 27–39. 68 In fact, any serious intellectual history project on the two dimensions of sovereignty would have to go well beyond that. This quest, however, is beyond the purposes of this essay. 69 U.N. Secretary-General, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, A/47/277-S/2411, June 17, 1992. 70 For more on this, see George Andreopoulos, “The Challenges and Perils of Normative Overstretch,” in The UN Security Council and the Politics of International Authority, ed. Bruce Cronin and Ian Hurd (London: Routledge, 2008), 105–128. 71 For example, this was demonstrated during the abovementioned debate on the concept that took place in the U.N. General Assembly in July 2009. 72 Needless to say, the brief discussion that follows is by no means exhaustive. 73 Darfur/Sudan, Burma/Myanmar, Chad, and Eastern Congo are among the cases that come to mind. 74 We are referring to, among others, the A More Secure World report (2004), the In Larger Freedom report (2005), the World Summit Outcome Document (2005), and U.N. Security Council Resolution 1674 (2006). 75 On this, see also Maria Banda, The Responsibility to Protect: Moving the Agenda Forward (United Nations Association in Canada, March 2007). 76 For a typical example of this for R2P, see Gareth Evans, “From Humanitarian Intervention to the Responsibility to Protect,” Wisconsin International Law Journal, 24, no. 3 (2006 ): 718–719 available at: http://hosted.law.wisc.edu/wilj/issues/24/3/evans.pdf. Evans briefly refers to, but then dismisses without serious examination, Anne-Marie Slaughter's and Lee Feinstein's argument about a new “duty to prevent” by simply stating that it is part of the “false friends problem.” He argues that in this case, “principled supporters of R2P decide to use it as a springboard for other forms of adventurism,” 718. This is rather simplistic. Likewise for HI, see Ken Roth, War in Iraq: Not a Humanitarian Intervention, in Human Rights Watch World Report 2004, Human Rights and Armed Conflict (New York: Human Rights Watch, 2004). While Roth's arguments are primarily couched in terms of HI, he does state that “We also take into account other relevant literature, including the report of the Canadian government-sponsored International Commission on Intervention and State Sovereignty,” 17. Contrary to Evans, Roth does not even address the above-mentioned interface. Additional informationNotes on contributorsGeorge J. AndreopoulosGeorge J. Andreopoulos is Professor of Political Science at John Jay College of Criminal Justice and at the Graduate Center, CUNY, and founding director of the Center for International Human Rights at John Jay College of Criminal JusticeLeonid LantsmanLeonid Lanstman is in the doctoral program in criminal justice, City University of New York
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