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Nice catch by Bruce Kesler who goes en fuego on the weirdly discordant note Anne-Marie Slaughter strikes in her latest New York Times op-ed:

Majority Rule Over Minorities: Ironic R2P Hypocrisy

The extremism of R2P’s leading proponent is exhibited in Anne-Marie Slaughter’s op-ed in today’s New York Times. Slaughter likens the Wall Street protesters to those demonstrating against oppressive regimes in the Middle East and recommends removal of the US system of checks and balances that protect minority views and avoid poorly developed political stampedes. (Slaughter doesn’t mention or give credence to the more numerous, mature citizenry participating in or supporting the Tea Parties more peaceful protests for more limited government intrusions into Americans’ private lives and earnings.)

R2P’s leading proponent, Anne-Marie Slaughter of Harvard, believes that US foreign policies and military interventions should prioritize the Right To Protect severely repressed peoples through US obeisance to liberal internationalist elites’ sentiments in favor of some they like regardless of the US Constitution or laws or national or security interests.

In today’s New York Times, Slaughter takes her R2P home to the US, advocating that majorities rule regardless of the formal and informal checks and balances of our political system and overriding the rights of political minorities. Again, it is the majorities that liberals like who should be given more powers.

Without any sense of proportionality or of core differences between the US and Middle East satrapies, Slaughter says, “Indeed, the twin drivers of America’s nascent protest movement against the financial sector are injustice and invisibility, the very grievances that drove the Arab Spring.” Slaughter then concludes, “The only effective response is a political response, of a nature and magnitude that convinces protesters on the streets that they can in fact secure the change they seek within, rather than outside, the system.”

Slaughter’s system, however, would reduce the ability of permanent or transitory political minorities to protect their interests. They would, also, further factionalize the US and make compromises more difficult as the power of centrists is reduced….

Read the rest here.

Good grief. Anne Marie Slaughter opining on the need for greater democracy and accountability to the people is somewhat akin to Ayn Rand calling for more welfare programs.

My suspicion here, since this rhetoric runs counter to Slaughter’s most influential ideas, is that Slaughter is just carrying water as part of the current Democratic political strategy of trying to co-opt the Occupy Wall Street movement. Perhaps the Axelrods and Podestas see that open-source protest movement to potentially be “their tea party”. Whatever. I will take her op-ed more seriously when she is marching against the Hedge fundies and Wall Streeters who are top donors to her Party, her administration and her university.

You can put a three corned hat on a Princeton theorist of global governance by transnational “governmental networks” but even if you adjust the hat at a suitably jaunty angle for maximum populist effect, the agenda underneath is still neither democratic nor popular.

Part II.

This is the second part of  a series analyzing Anne-Marie Slaughter’s ideas about “Responsibility to Protect” doctrine, based on her Stanford Journal of International Law article, “Sovereignty and Power in a Networked World Order“, to better understand and critique the assumptions on which R2P rests. The topic will be Dr. Slaughter’s uses and conceptualization of “Authority” as it relates to international law and state sovereignty.

Slaughter is particularly concerned with sovereignty and redefining it in international law so that national sovereignty is in harmony with R2P and other au courant academic concepts of “global governance” that are outside the scope of this post. While much of Slaughter’s paper relates to description of empirical trends in the behavior of regulatory bodies in transnational and IGO networks or works of theory, for R2P or “new sovereignty” to be meaningful, it has to be expressed as a legal argument. Furthermore, that legal argument for R2P/new sovereignty must gain acceptance by being expressed by source(s) or forms that a majority of the international community regards as authoritative and binding.

To the unininitiated, international law as a field is something of an intellectual wonderland that bears little resemblance to how positive law functions judicially inside of a sovereign state. First, there is no Hobbesian global leviathan that can enforce international law. The UN is not the “parliament of man” and neither the World Court nor the International Criminal Court can directly compel sovereign states to do anything, and sovereigns retain considerable discretion of interpreting for themselves what international law means and requires them to do or not do. International law theory therefore bears greater resemblance, at times, to mediating theological disputes than it does to the kind of law cases people ordinarily encounter.

International law is most accurately described as a body of competing centers of legal authority that possess varying degrees of legitimacy and that attract voluntary compliance ftom state actors, including: binding international covenants, customary international law, precedent, rulings from internationally sanctioned institutions like the UNSC, the World Court, the WTO or the Red Cross and the consensus of government officials and experts in in international law. These do not all have equal authority or legitimacy – a clause in the Geneva Convention, a UNSC resolution or a concept like “diplomatic immunity” carries more legal weight in international law than an informal but common diplomatic practice or the opinion of a faction of law professors. The ambiguity and heterogeneous nature of international law leaves a lot of room for scholarly debate, litigation, for officials to “shop for opinions” and for ambitious ideologues to push novel theories as allegedly natural extensions of existing jurisprudence.

Slaughter’s legal justification for R2P and redefined sovereignty are in section II. where she leans primarily upon the authority of the ICISS ( International Commission on Intervention and State Sovereignty). As I am examining the ICISS section, I will break up the quoted text with comments:

….On the humanitarian side, Kofi Anana issued a challenge to all UN members at the opening of the General Assembly to “reach consensus – not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on the ways of deciding what action is necessary, and when, and by whom.” In response to this challenge, the Canadian government, together with a group of major foundations, established the International Commission on Intervention and State Sovereignty (ICISS), headed by former Australian Foreign Minister Gareth Evans and Special Adviser to the UN Secretary General Mohamed Sahoun, and composed of a distinguished group of global diplomats, politicians, scholars and nongovernmental activists….

The ICISS has genuine, but very trivial, legal stature, having been brought into being by a single (!) member state of the UN and some very powerful and wealthy left-liberal American philanthropic foundations including the  Carnegie Corporation of New York, the William and Flora Hewlett Foundation, the John D. and Catherine T. MacArthur Foundation, the Rockefeller Foundation, and the Simons Foundation. The governments of the UK and Switzerland also gave financial support to the ICISS.  Politically, while the commissioners were prominent center-left statesmen, the ICISS advisory board tilted further to the international Left and toward elite “neoliberal” politicians. The ICISS was approximately as politically and philosophically balanced as would be an international small arms control commission composed entirely of members of the NRA.

The ICISS by itself is thin gruel in terms of legal authority, but has just enough substance to be legitimately served up on the table.  Once the foot was in the door, advocates for R2P were, over time, able to get it into the 2005 World Summit Outcome Document (again, relatively minor in itself, but an additional precedent) and, more substantially, into UNSC Resolution 1674. Much like sediment, a new theoretical concept has to lay down legal particulates in order to become a durable and freely recognized part of international law by sovereigns. That kind of autonomous judgment by sovereigns is something R2P advocates would like to sharply curtail.

….In December 2001 the ICISS issued an important and influential report, “The Responsibility to Protect“, which essentially called for updating the UN Charter to incorporate a new understanding of sovereignty.

Dr. Slaughter has a gift for understatement. “Incorporating a new understanding of sovereignty” means irrevocably changing national sovereignty as the term has been traditionally defined and understood. This is not exactly a minor ambition in international relations, which is one reason why I tend to regard Anne-Marie Slaughter as a revolutionary or radical IR theorist and not as a “neoconservative”, as she is sometimes accused of being by left-wing ideologues. Slaughter expounds further:

….The ICISS seeks to change the core meaning of UN membership from “the final symbol of independent sivereign statehood and thus the seal of acceptance into the community of nations” to recognition of a state as a responsible member of the community of nations.” Nations are free to choose or not not to sign the Charter: if they do, however, they must accept “the responsibilities of membership” flowing from their signature. According to the ICISS, “There is no transfer or dilution of state sovereignty. But there is a re-characterization involved: from sovereignty as control to sovereignty as responsibility in both internal functions and external duties.

[emphasis in original] 

That’s the kind of “re-characterization” that George Orwell’s Winston Smith regularly undertook in his job at the Ministry of Truth. To where or to whom does the political locus of control then move? Cui bono?( Hint: read Slaughter’s fifth section).

“Sovereignty as responsibility” implies duties or obligations rather than decision making power and, indeed, earlier in section II, Slaughter uses the phrase “conditional social contract” in the introductory paragraph. Slaughter’s ICISS derived social contract however is not Lockean in nature, formed by and with the consent of the governed, but is instead drawn by the state from the collective authority of the community of nations and sovereignty is manifested to the degree with which the state is interactive and interdependent and has “the capacity to participate in international institutions of all types”. A community not just of nations, but one that is extended and buttressed by being interwoven by transnational, quasi-independent, “governmental networks” of former and current politicians and bureaucrats

If you are thinking that this formula shifts political authority and power away from a state and the popular sovereignty of it’s citizens and toward a vaguely defined, supranational community, you would be absolutely correct. Drawing on the theories of Abram and Antonia Chayes, Slaughter, argues that the connectivity and interaction of the modern international system is such that “sovereignty as autonomy makes no sense”.

Such a position requires a healthy contempt for the consent of the governed as well as a childlike faith in the wisdom, integrity and basic competence of a superempowered technocratic elite.

To continue:

….Internally, a government has the responsibility to respect the dignity and basic rights of it’s citizens; externally, it has a responsibility to respect the sovereignty of other states.

Further, the ICISS places the responsibility to protect on both the state and on the international community as a whole. The ICISS insists that an individual state has the primary responsibility to protect individuals within it. However, where the state fails in that responsibility, a secondary responsibility falls on the international community acting through the United Nations. Thus, where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.

As Slaughter is redefining sovereignty as the “new sovereignty” of interactive capacity championed by Chayes and Chayes, “respecting the sovereignty of other states” probably does not mean “non-interference in the internal affairs of other states”. Interference (albeit not necessarily military intervention) might be the natural default position from using the premise of “sovereignty as responsibility” or as a “capacity to participate”. Hey, we aren’t intefering in your elections, your economy or your social system – we’re just “harmonizing” (Slaughter’s term) your laws and regulations and increasing your capacity to participate!

One wonders what aspects of American life that R2P advocates see as being most in need of international harmonization?  That’s a subject we can take up in future posts, but in terms of military intervention and R2P, a few comments in regard to international law as well as “capacity to participate”:

First, under current international law, the legitimate pretexts for military intervention largely revolve around the right of self-defense or disturbance of international peace, as recognized by the UNSC.  While this is a fairly narrow set of pretexts, in practice they are sufficiently flexible to address most scenarios of violent conflict without also justifying military aggression bent on conquest. What was lacking in Rwanda and the Balkans during the 1990’s were not legal rationales for military intervention but political will among the great powers to do so.  I see little evidence that R2P would carry greater moral or legal weight with state decision makers to compel them to undertake major military interventions out of altruism than does the Genocide Convention (which unlike R2P, as an international covenant, is an inarguably solid part of international law). Or, for that matter, the emotional pull of horrifying media imagery of dying children.

Secondly, by greatly broadening the scenarios under which military intervention is allowed under international law, R2P incentivizes such conduct primarily where doing so is inexpensive and will further national interests rather than in the worst cases, like Rwanda, where they are expensive and risky while yielding no tangible benefits. The global military capacity to intervene is finite and instead of doing triage, statesmen will go for the low-hanging fruit in a now much larger set of cases for potential intervention. If R2P were taken seriously, North Korea, Burma, Congo, Somalia, Syria and perhaps Yemen would be ahead in line for intervention before Libya. 

Thirdly, in terms of “capacity to participate”, the net global capacity for military intervention is overwhelmingly American and the logistical ability to sustain a major military intervention for more than a few weeks is a complete American monopoly. On pragmatic grounds, R2P will never work orchestrated in so lopsided a fashion of “America and some of the West vs. the Rest”. Nor will not be politically tolerated by either the American public or most of the world’s population. Or by Beijing’s steely-eyed rulers, who would have to bankroll this catalogue of expeditions because America no longer can afford to do so. Perhaps we can put “R2P” on our tin cup and get a better interest rate.

Even acting as benignly-intended peacekeepers, the potential scale of R2P vastly exceeds our will, our wallet and our welcome.

Dr. Robert Bunker testifies before the House Foreign Affairs Subcommittee on the Western Hemisphere on the descent of Mexico into narco-barbarism:

Criminal (Cartel & Gang) Insurgencies in Mexico and the Americas: What you need to know, not what you want to hear.

 ….Something very old historically, and at the same time very new, is thus taking place in Mexico. To use a biological metaphor, we are witnessing ‘cancerous organizational tumors’ forming in Mexico both on its encompassing government and its society at large. These tumors have their roots intertwined throughout that nation and, while initially they were symbiotic in nature (like traditional organized crime organizations), they have mutated to the point that they are slowly killing the host and replacing it with something far different. These criminalized tumors draw their nourishment from an increasingly diverse illicit economy that is growing out of proportion to the limited legitimate revenues sustaining the Mexican state. These tumors do not bode well for the health of Mexico or any of its neighboring states

Hat tip to SWJ Blog.

Adam Elkus has a smart piece up at Rethinking Security that deserves wider readership:

WikiLeaks and Sovereignty

….WikiLeaks represents the idea that states have no inherent authority to hold onto vital national secrets. Because information is fundamentally boundless and unlimited by the “oldthink” of national borders and politics, state control over proprietary information is irrelevant. WikiLeaks and other radical transparency advocates believe that they-an unelected, transnational elite-can pick and choose which states are good and bad and whose secrets deserve exposure. And if information deserves to be free-and the only people who would keep it from being so are those with something to hide-then it is fine for non-state networks to arrogate themselves the right to receive and expose state secrets.

….While WikiLeaks is often positioned as a champion of digital democracy, it is actually wholly anti-democratic. It transfers power and security from national governments and their publics to unelected international activist organizations and bureaucrats. While this may seem like a harsh interpretation, there is no check on the likes of Julian Assange. Governments-even autocratic ones-still must contend on a day-to-day basis with the people. Even China had to face a reckoning after the Wenzhou train crash. WikiLeaks and other radical transparency organizations mean to replace one group of elites-which at least nominally can be called to court-with another who are accountable only to their own consciences.

Read the whole thing here.

Let me add a few comments to Adam’s excellent analysis.

Wikileaks and Julian Assange were not and have never been, lone wolves or information-must-be-free martyrs. They are allied with important institutions and individuals within the Western progressive elite, not least major media heavyweights like The New York Times, The Guardian and Der Spiegel, but also sympathizers within Western governments. Unless you think that Pvt. Bradley Manning was a hacker wunderkind with an intuitive grasp of which files that could be swept up to further a sophisticated political agenda, the man had some inside help from further up the food chain.

Adam is correct to describe these political factions as anti-democratic because they are and while leaking has been going on as long as there have been governments, we now have the emergence of a transnational generational clique that see themselves as entitled to rule and impose policies that comport with their social prejudices, economic self-aggrandizement and ideological fetishes, whether the people support them or not. A vanguard attitude, if not an organizational vanguard.

Wikileaks and other devices operating in shadowy undercurrents are their form of liberum veto against the rest of us in the instances where they are not completely in control, thus migrating political power from responsible state institutions to the social class that currently fills most of the offices and appointments. So far, their actions have been largely cost-free because their peers in government, however irritated they may be at the effects of Wikileaks, are loath to cross the Rubicon and hammer these influential conspirators with whom they went to school, intermarry, do business, live amongst and look out for the careers of each other’s children the way they have hammered Bradley Manning.

The same oligarchical class indulgence is seen in the financial crisis where almost none of the people responsible for massive criminal fraud in the banking and investment  sectors that melted the global economy have faced prosecution, unlike previous financial scandals like the S&L crisis or BCCI where even iconic figures faced grand juries. Instead of indictments, the new class received subsidies, bonuses and sweetheart, secret deals from their alumni chums running central banks and national governments. 

Carl Prine, commenting on a much narrower and wholly American slice of this corrupt camarilla, described this new class very well:

Let me be blunt.  A late Baby Boomer generation of politicians, bankers, reporters and generals has formed into a cancer inside this democracy, and their tumorous leadership won’t be kind to your future.

Unfortunately, this cancer is not limited to our democracy, it is the root of the decline of the West.

There has been much ado about Dr. Anne-Marie Slaughter’s ennunciation of “Responsibility to Protect” as a justification for the Obama administration’s unusually executed intervention (or assistance to primarily British and French intervention) in Libya in support of rebels seeking to oust their lunatic dictator, Colonel Moammar Gaddafi. In “R2P” the Obama administration, intentionally or not, has found it’s own Bush Doctrine, and unsurprisingly, the magnitude of such claims – essentially a declaration of jihad against what is left of the Westphalian state system by progressive elite intellectuals – are beginning to draw fire for implications that stretch far beyond Libya.

People in the strategic studies, IR and national security communities have a parlor game of wistfully reminiscing about the moral clarity of Containment and the wisdom of George Kennan. They have been issuing tendentiously self-important “Mr. Z” papers for so long that they failed to notice that if anyone has really written the 21st Century’s answer to Kennan’s X article, it was Anne-Marie Slaughter’s battle cry in the pages of The Atlantic.

George Kennan did not become the “Father of Containment” because he thought strategically about foreign policy in terms of brutal realism. Nor because he was a stern anti-Communist. Or because he had a deep and reflective understanding of Russian history and Leninism, whose nuances were the sources of Soviet conduct. No, Kennan became the Father of Containment because he encapsulated all of those things precisely at the moment when America’s key decision makers, facing the Soviet threat, were willing to embrace a persuasive explanatory narrative, a grand strategy that could harmonize policy with domestic politics.

Slaughter’s idea is not powerful because it is philosophically or legally airtight – it isn’t – but because R2P resonates deeply both with immediate state interests and emotionally with the generational worldview of what Milovan Djilas might have termed a Western “New Class”.

While it is easy to read R2P simply as a useful political cover for Obama administration policy in Libya, as it functioned as such in the short term, that is a mistaken view, and one that I think badly underestimates Anne-Marie Slaughter. Here is Slaughter’s core assertion, where she turns most of modern diplomatic history and international law as it is understood and practiced bilaterally and multilaterally by sovereign states in the real world (vice academics and IGO/NGO bureaucrats) on it’s head:

If we really do look at the world in terms of governments and societies and the relationship between them, and do recognize that both governments and their citizens have rights as subjects of international law and have agency as actors in international politics, then what exactly is the international community “intervening” in?

…For the first time, international law and the great powers of international politics have recognized both the rights of citizens and a specific relationship between the government and its citizens: a relationship of protection. The nature of sovereignty itself is thus changed: legitimate governments are defined not only by their control of a territory and a population but also by how they exercise that control. If they fail in that obligation, the international community has the responsibility to protect those citizens.

Slaughter is a revolutionary who aspires to a world that would functionally resemble the Holy Roman Empire, writ large, with a diffusion of power away from legal process of  state institutions to the networking informalities of the larger social class from whom a majority of state and IGO officials are drawn, as a global community. In terms of policy advocacy, this is a brilliantly adept move to marry state and class interests with stark moral justifications, regardless of how the argument might be nibbled to death in an arcane academic debate.

As with Kennan’s X Article, which faced a sustained critique from Walter Lippmann who realized that Containment implied irrevocable changes in the American system, R2P has attracted criticism. Some examples:

Joshua Foust –Why sovereignty matters

Much as advocates of the “Responsibility to Protect,” or R2P, like to say that sovereignty is irrelevant to the relationship of a society to its government (which Slaughter explicitly argues), it is that very sovereignty which also creates the moral and legal justification to intervene. For example, the societies of the United States and NATO did not vote to intervene in Libya – their governments did.

Foreign Affairs – The Folly of Protection

….RtoP, responding to the sense that these domestic harms warranted international response, solidified the Security Council’s claims to wider discretion. Yet it also restricted its ability to sanction intervention to the four situations listed in the RtoP document — genocide, war crimes, ethnic cleansing, and crimes against humanity — and thus precluded, for example, intervention in cases of civil disorder and coups. Although the resolution authorizing force against Libya will certainly further entrench the principle of RtoP, it will not completely resolve the tension between RtoP — in itself only a General Assembly recommendation — and the UN Charter itself, which, according to the letter of the law, limits action to “international” threats.

Dan Trombly –The upending of sovereignty and Responsibility to Protect Ya Neck

Beauchamp, along with Slaughter, have revealed R2P for what it actually is: a doctrine based on regime change and the destruction of the foundations of international order wherever practically possible. After all, are intervening powers really fulfilling their responsibility if they fail to effect regime change after intervening? This is exactly why I believe R2P is far more insidious than many of its advocates would have us believe or intend in practice. It is essentially mandating a responsibility, wherever possible, to seek the sanction, coercion, or overthrow of regimes which fail to meet a liberal conception of acceptable state behavior. Even if R2P is never applied against a major power, it is hard to see why such behavior would not be met with just as much suspicion as humanitarian intervention and previous Western regime change operations were. Indeed, a full treatment will reveal there is immense pressure for R2P to initiate the more fundamental, and more universal, impulse to revert to the potential ruthlessness inherent in international anarchy.

Understandably, such critiques of R2P are primarily concerned with sovereignty as it relates to interstate relations and the historical predisposition for great powers to meddle in the affairs of weaker countries, usually with far less forthrightness than the Athenians displayed at Melos. It must be said, that small countries often  are their own worst enemies in terms of frequently providing pretexts for foreign intervention due to epic incompetence in self-governance and a maniacal delight in atavistic bloodshed. Slaughter is not offering up a staw man in relation to democide and genocide being critical problems with which the international community is poorly equipped and politically unwilling to counter.

But R2P is a two edged sword – the sovereignty of all states diminished universally, in legal principle, to the authority of international rule-making about the domestic use of force is likewise diminished in it’s ability to legislate it’s own internal affairs, laws being  nothing but sovereign  promises of state enforcement. Once the camel’s nose is legitimated by being formally accepted as having a place in the tent, the rest of the camel is merely a question of degree.

And time.

As Containment required an NSC-68 to put policy flesh on the bones of doctrine, R2P will require the imposition of policy mechanisms that will change the political community of the United States, moving it away from democratic accountability to the electorate toward “legal”, administrative, accountability under international law; a process of harmonizing US policies to an amorphous, transnational, elite consensus, manifested in supranational and international bodies. Or decided privately and quietly, ratifying decisions later as a mere formality in a rubber-stamping process that is opaque to everyone outside of the ruling group.

Who is to say that there is not, somewhere in the intellectual ether, an R2P for the the environment, to protect the life of the unborn, to mandate strict control of small arms, or safeguard the political rights of minorities by strictly regulating speech? Or whatever might be invented to suit the needs of the moment?

When we arrest a bank robber, we do not feel a need to put law enforcement and the judiciary on a different systemic basis in order to try them. Finding legal pretexts for intervention to stop genocide does not require a substantial revision of international law, merely political will. R2P could become an excellent tool for elites to institute their policy preferences without securing democratic consent and that aspect, to oligarchical elites is a feature, not a bug.

R2P will come back to haunt us sooner than we think.

ADDENDUM:

Doug Mataconis at Outside the Beltway links here in a round-up and commentary about R2P posts popping up in the wake of the Slaughter piece:

The “Responsibility To Protect” Doctrine After Libya

….It’s understandable that the advocates of R2P don’t necessarily want to have Libya held up as an example of their doctrine in action. Leaving aside the obvious contrasts with the situation in Syria and other places in the world, it is by no means clear that post-Gaddafi Libya will be that much better than what preceded it. The rebels themselves are hardly united around anything other than wanting to get rid of Gaddafi and, now that they’ve done that, the possibility of the nation sliding into civil and tribal warfare is readily apparent. Moreover, the links between the rebels and elements of al Qaeda that originated in both Afghanistan and post-Saddam Iraq are well-known. If bringing down Gaddafi means the creation of a safe haven for al Qaeda inspired terrorism on the doorstep of Europe, then we will all surely come to regret the events of the past five months. Finally, with the rebels themselves now engaging in atrocities, one wonders what has happened to the United Nations mission to protect civilians, which didn’t distinguish between attacks by Gaddafi forces or attacks by rebels.

….Finally, there’s the danger that the doctrine poses to American domestic institutions. If Libya is any guide, then R2P interventions, of whatever kind, would likely be decided by international bodies of “experts” rather than the democratically elected representatives of the American people. American sailors and soldiers will be sent off into danger without the American people being consulted. That’s not what the Constitution contemplates, and if we allow it to happen it will be yet another nail in the coffin of liberty.

Read the rest here.