Pavers of Roads with Good Intentions: R2P Debate Rising Part II.

Beyond international law based on formal covenants, custom and legal precedents generally accepted by sovereigns, other sources of authority in international law would include resolutions of the UN Security Council, the UN General Assembly, regional bodies like the OAS or EU, some institutions like the ICRC and even the opinions of scholars learned in international law. Unlike positive law within a state, international law in its various manifestations lacks a legitimate, overarching, coercive authority that could function as a global sovereign and impartial enforcer of consistently interpreted law and justice. Sovereign states are thus not subject to international law in the same relationship that their citizens are subject to sovereign authority; sovereign states are, at least legally, a community of equals able to draw upon and interpret overlapping and at times competing sources of legal authority in making claims – including precedents they intentionally created themselves!  This makes a quick redress of violations of international law difficult when the UN Security Council is empowered to make use of military force only in cases of ” international peace and security” (i.e. aggression) and the UN Charter also assures sovereigns of their “right to self defense”.

“New Sovereignty”, in the title of Victor’s first piece, is a concept propagated by the late Harvard theorist and State Department official Abram Chayes and his wife, scholar Antonia Handler Chayes, that repudiates much of traditional sovereignty in order to aggressively re-define it as “ the capacity to participate in international institutions of all types“.  In other words, sovereignty in their view would mean a state’s membership in good standing in  a mutually interdependent ” international community” and not control over national territory free from external interference by other sovereigns. Under “New Sovereignty”, such external interference is assumed as “normal” and is a point of constant, cooperative, negotiation toward consensus on emerging and evolving legal norms. As such, if accepted, “New Sovereignty” would be a massive transfer of political power and legal authority from legitimate national governments to a transnational and international class of legal technocrats and bureaucrats, who would assume by default a managerial role over the substance of international affairs. In many ways this erosion of traditional state sovereignty would be analogous to the transfer of real power from the hands of crowned sovereigns in the early modern period to their embryonic state bureaucracies that in time rendered most monarchs mere ceremonial figureheads.

In my view, while  Chayes had many laudable goals in mind,  “New Sovereignty” would be unworkable in practice and inherently is extremely reactionary in its anti-democratic repudiation of popular sovereignty as the basis for a state’s legitimacy. Citizens of states are effectively reduced to the position of wards under the protection of the international community as national leaders become responsive primarily to “external constituencies” in control of the eternal process of negotiation of international norms. While the problem is somewhat moot for repressive regimes whose citizens enjoy few freedoms anyway, in liberal states the “democratic deficit” produced by such a scheme runs contrary to the very foundations of their political legitimacy and independence.

In this context, we have the claim put forth for the legal basis of R2P by Victor:

 ….Indeed, the UN Security Council, having enshrined R2P in UNSCR 1674, did not subsequently authorize action under the R2P banner in the aftermath of Cyclone Nargis in Burma, with the Special Adviser to the Secretary-General stating in his report that

[i]t would be a misapplication of responsibility to protect principles to apply them at this point to the unfolding tragedy in Myanmar…the Outcome Document of the 2005 [World] Summit limited their application to four crimes and violations: genocide, crimes against humanity, war crimes and ethnic cleansing.

and in his second post:

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