Pavers of Roads with Good Intentions: R2P Debate Rising Part II.
As I mentioned previously, I needed to make a more substantive reply to Victor Allen’s claims for R2P. I am very tardy in doing so, for which I apologize to Mr. Allen but better late than not at all. While addressing some of Victor’s specific points, I want to be very clear that in my view:
1. R2P’s status in international law, despite grandiose claims by advocates, is weakly grounded, highly controversial and conflicts with accepted norms of state sovereignty
2. The concept of R2P is a covert revival of the pre-WWI sovereign right to wage aggressive war, albeit (usually) under some kind of collective imprimatur
3, If regarded as a serious legal moral principle entailing an obligation to act, R2P is inherently anti-strategic, injurious to national interest and anti-democratic in nature
I will tackle point #1 today and points # 2 and #3 in successive posts.
In Victor’s original piece he argued that R2P is part and parcel of a (theoretical) “new sovereignty”:
That R2P does not violate sovereignty stems from the evolution of sovereignty from its Westphalian form in the mid 17th century to the “sovereignty as responsibility” concept advanced by Deng, et al. Modern sovereignty can no longer be held to give states carte blanche in their internal affairs regardless of the level of suffering going on within their borders. This does not diminish state agency for internal affairs, but rather holds them responsible and accountable for their action and inaction regarding the welfare of their populations.
“Sovereignty as responsibility” is a theory put forth by a Sudanese diplomat and minor UN bureaucrat and an American academic that proclaimed:
The authors assert that sovereignty can no longer be seen as a protection against interference, but as a charge of responsibility where the state is accountable to both domestic and external constituencies.
The “…and external constituencies” clause is an Orwellian negation of the traditional meaning of sovereignty where the state has sole de jure authority over such matters as their internal affairs, including the political character of their regime, with very narrow exceptions mandated by treaty or customary international law ( ex. diplomatic immunity of heads of state). The latter, is based on consent and derives from the history of the diplomatic norms adhered to, interpreted and practiced by sovereigns and such rulings of IGO to whose authority sovereigns have voluntarily submitted themselves through a binding covenant ( ex. World Court via the UN charter).
Of course, being sovereign, states differ on how such rulings are to be interpreted or even whether they will accept jurisdiction of bodies like the World Court, the ICC or special international tribunals of justice in specific cases. Furthermore, in signing covenants, states often, quite legally, make reservations or exceptions to specific treaty clauses as part of their agreement to adhere to the rest of the treaty and consider it legally binding. The United States in fact, does this regularly as do most other states having major interests at stake in negotiating an international agreement. Unless you have a granular knowledge of what country “x” formally agreed to accept as a signatory, or are willing to do your homework in this regard, you do not actually know what the law really is in many diplomatic disputes – especially when the conflict is complex and multilateral. Broad and bombastic assertions by activists in the media that novel restrictions or obligations on states that they support are “international law” or that some act they condemn is “illegal” are almost invariably factually incorrect, at least to some degree ( barring obvious and clear violations of jus cogens, such as mass atrocities).
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