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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.

Received a tremendous amount of feedback on this topic, mostly offline, but also on twitter and on other sites. Interestingly, of the minority who are strongly disagreeing with me, they tend to have their own problems with R2P doctrine. The next installment should be up tomorrow evening. In the meantime, here are a few more posts:

Bruce Kesler at Maggie’s Farm:

R2P: Right To Protect or Right To Preen?

….Neither COIN nor R2P are strategies. Unlike COIN, however, which is a set of tactics that may be applicable in some circumstances in pursuit of strategic goals (even if those goals may be arguable), R2P doesn’t have any operational tactics. R2P is more a clarion call to action, including actions that are contrary to US laws or popular will, in pursuit of internationalist goals for global governing as defined by transnational elites.

Further, R2P is cloaked in humanitarian rhetoric that allows liberal elites to preen, displaying their caring feathers, regardless of their ignorance of the military, regardless of the cost-benefit to US national security, and regardless that it isn’t their children being sent into harm’s way.

Lastly, R2P is reactive, not prescriptive of avoiding future threats to US security as a strategy must be. Much the same coterie who want to raise R2P to dominance over US foreign and military policies are largely dismissive of severely hobbling US allies or hollowing our military.

A brutally succinct assessment. 

Kesler, a veteran of the war in Vietnam and a former foreign policy analyst, is in sync here with many veterans whose experiences have made them skeptical of basing military intervention on grandiose idealism, along with the school of foreign policy realists. On the other hand, Anti-interventionists of all political stripes and backgrounds look askance at the assurance from R2Paternalistic advocates that enshrining R2P is not risky because such military interventions will be “rare” ( myself, I’d just like to see them done competently , in line with a coherent strategy, when the potential benefits significantly outweigh the costs).

Ken White, a respected senior voice at the Small Wars Council had this to say in an extended analysis of R2P in the comments section at SWJ Blog:

…. I’ll note that those whom Zenpundit rightly says will be “fired” will not be those who do the actual Protecting nor will they be the ones who pay the costs of such abject foolishness.

The R2P theory is the tip of an iceberg wherein the State — a State? — has overarching responsibility in all things and individuals have no responsibilities for them selves, indeed, no responsibility other than to act as the State directs. That is indeed monstrous.

In her paper linked by Zenpundit, Dr. Slaughter writes: “States can only govern effectively by actively cooperating with other states and by collectively reserving the power to intervene in other states’ affairs.” The first clause is possibly correct, the second is a road to unending warfare — quite simply, humans will not long tolerate it. I suggest that if that idea is applied to individuals, then I am endowed with the ability to get together with my neighbors and we can attack another neighbor whose only crime is to behave differently than do most of us. My suspicion is that will not work on several levels.

….She also writes: “The principal advantage is that subjecting government institutions directly to international obligations could buttress clean institutions against corrupt ones and rights-respecting institutions against their more oppressive counterparts.” Admirable. My question is what standard is applied to the determination of corruption and oppressiveness? What cultural norms are to be heeded and which are to be ignored? Who makes these determinations? If it is a collective decision, what precludes either mob rule or a ‘might makes right’ led possibly quite wrong determination…

Popular support for R2P may be inverse to the degree of public scrutiny the idea receives.

Part I. 

As I mentioned in my last post, I will be 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” in a series of posts order to better understand and critique the assumptions on which R2P rests. Before I begin, some caveats:

Reading these posts is no substitute for reading the article yourself and drawing your own conclusions. A truly remarkable paper of some 44 pages of academic prose, a blog review of Dr. Slaughter’s thesis, even in a series, will only be able to focus on her operative premises and not delve into every shade or nuance. Limitation of the medium, but readers are free to disagree or agree in the comments.

Dr. Slaughter is an IR theorist and international lawyer of eminent stature and her style of argumentation reflects both the strengths and the weaknesses of those fields.

On the empirical issue of general, trends in international affairs and conflict, I do not take issue with Dr. Slaughter’s assumptions about the rise of networked non-state actors, greater degrees of uncertainty, complexity and multipolarity among and within states and the systemic erosion of state legitimacy. Indeed, in a broad and fundamental sense, I share them as I think do most people studying irregular conflict, counterinsurgency, 4GW and hybrid wars. I take exception though to the truly radical legal and policy conclusions Slaughter draws from these trends, as well as her normative delight in their trajectory. It as if we both agree that the Westphalian house is on fire, but she is reaching for a jerrycan of gasoline in order to speed the process along.

Finally, in this series I intend to tackle her argument from a thematic perspective, addressing how Slaughter views core philosophical questions of authority, international law, sovereignty, legitimacy and power in inventing a “responsibility to protect” doctrine and what the logical extrapolation of her ideas entails. Slaughter structured her article differently, with these concepts interwoven as she made her case in five sections, with sovereignty being a dominant concept.

The first post will concentrate on Slaughter’s premises regarding the problem facing the international community and her proposed solution:

An excerpt from Dr. Slaughter summarizing her thesis in her introduction:

….Westphalian sovereignty faces two fundamental challenges in contemporary international relations….First, the ineffectiveness challenge….A State’s ability to control its own territory without external interference is no longer sufficient to allow it to govern its people effectively – to provide security, economic stability and a measure of prosperity, clean air and water, and even minimum health standards.

Second, is the interference challenge. The letter of Article 2(7) remain; the spirit is violated repeatedly and increasingly routinely. All of human rights law deliberately infringes on the domestic jurisdiction of every state, denying governments the freedom to torture, murder, “disappear”, or systematically discriminate against their own citizens. Moreover, throughout the the 1990’s the Security Council repeatedly found that the conditions prevailing within a state, from starvation in Somalia to political intimidation and massacre in East Timor, constituted a threat to international peace and security sufficient to require collective armed intervention, and should have made such a determination regarding the genocide in Rwanda. States can no longer assume that if they refrain from interfering in the affairs of other states they will remain free from interference themselves.

….In short, states can no longer govern effectively by being left alone. The converse proposition is equally true, although perhaps more startling: States can only govern effectively by actively cooperating with other states and by collectively reserving their power to intervene in other states’ affairs. The world has indeed turned upside down: small wonder that the concept of sovereignty needs to be redefined!

Startling, is a good description.

Slaughter’s first “fundamental challenge” pivots on an odd usage of the word “effective”. “Effective governance” here is defined by Slaughter as something other than a state’s actual physical control over the territory and population over which it asserts sovereignty. Explicitly, “effective governance” is then defined as the provision of modern public goods, presumably without resort to autarkic policies, as interdependence is one of her themes. 

To be fair to , there’s some merit to Slaughter’s consideration of the provision of public goods. States that face non-state actor challengers like Hezbollah who do fill social needs are thwarting their state opponents at the moral as well as the material level of conflict, winning over their loyalty and eroding the legitimacy of the state. So, if Dr. Slaughter was writing a manual on, say, psychological warfare or insurgency, she would have me on board here.

But, unfortunately, she isn’t. Slaughter is writing an article, ostensibly on international law, and a vague laundry list of economic items, a transient de facto state of public policy, strikes me as a poor foundation for a universal principle of law. By Slaughter’s standard, Mexico which provides public services, is democratically governed and economically  interdependent despite being strangled by a narco-insurgency of atavistic brutality, is “effectively governed”. Lebanon, whose government in is under the hegemony of Hezbollah is “effectively governed”. There’s a subsumed “correct” political economy embedded in the argument here by Slaughter; if a first world state decides to reject carbon footprint taxes, nationalized health care or privatizes it’s mail delivery, is it “ineffectively governed”?

At least the first challenge is relatively straightforward. Slaughter’s second “fundamental challenge” is an exercise in logical acrobatics.

Slaughter is correct that the spirit and at times the letter of international law (actual, real world, international law that has a chance of being followed, not R2P theory) is stretched to justify military intervention. She is also right that Rwanda’s genocide by the then radical Hutu regime constituted a threat to international peace and cried out for intervention, and the failure to do so resulted in not just genocide of the Tutsi people but ultimately an African WWI in the Congo basin. These two factually accurate examples are diametrically opposed to one another, yet somehow, they combine to arrive at the solution of institutionalizing military intervention in international law as a rule and not an exception. They are juxtaposed with the cases of Somalia, where no state, legitimate or otherwise, existed and East Timor, which was a case of de jure military aggression and annexation by Indonesia. The only thread tying all of these disparate examples together is a large pile of dead bodies.

Charnel house examples make for bad law, unless you have to govern a society of cannibals.

Finally, while boldly rejecting international law’s long established definition of sovereignty, Slaughter offers two easily falsifiable assertions, that states can no longer govern effectively by governing alone and that the ever present danger of arbitrary meddling by foreigners is a prerequisite for good governance. If so, Switzerland would be a Hobbesian hellhole today and Central America and the Caribbean islands would resemble tropical Singapores . The omnipresent threat of foreign meddling on religious grounds is what states ran away from screaming after the Thirty Year’s War, which may have killed up to a third of all the people in the Germanies.

Anne-Marie Slaughter proposes to restore that state of affairs on more secular grounds.

Next post – Slaughter on Authority and International Law.

ADDENDUM – Related posts:

Inkspots –R2P is NOT the new COIN, but Ulfelder is just as wrong as Safranski about why*

Fear, Honor and Interest –Geopolitics, Networks, and Complex Friction

Introduction: 

The weirdly astrategic NATO campaign in Libya intervening on the side of ill-defined rebels against the tyrannical rule of Libyan strongman Colonel Moammar Gaddafi brought to general public attention the idea of “Responsibility to Protect” as a putative doctrine for US foreign policy and an alleged aspect of international law. The most vocal public face of R2P, an idea that has floated among liberal internationalist IL academics and NGO activists since the 90’s, was Anne-Marie Slaughter, former Policy Planning Director of the US State Department and an advisor to the Obama administration. Slaughter, writing in The Atlantic, was a passionate advocate of R2P as a “redefinition of sovereignty” and debated her position and underlying IR theory assumptions with critics such as Dan Drezner, Joshua Foust, and Dan Trombly.

In all candor, I found Dr. Slaughter’s thesis to be deeply troubling but the debate itself was insightful and stimulating and Slaughter is to be commended for responding at length to the arguments of her critics. Hopefully, there will be greater and wider debate in the future because, in it’s current policy trajectory, R2P is going to become “the new COIN”.

This is not to say that R2P is a military doctrine, but like the rise of pop-centric COIN, it will be an electrifying idea that has the potential fire the imagination of foreign policy intellectuals, make careers for it’s bureaucratic enthusiasts and act as a substitute for the absence of a coherent American grand strategy. The proponents of R2P (R2Peons?) appear to be in the early stages of following a policy advocacy template set down by the COINdinistas, but their ambitions appear to be far, far greater in scope.

It must be said, that unlike R2P, an abstract theory literally going abroad in search of monsters to destroy, COIN was an adaptive operational and policy response to a very real geopolitical debacle in Iraq, in which the United States was already deeply entrenched. A bevy of military officers, academics, think tank intellectuals, journalists and bloggers – some of them genuinely brilliant – including John Nagl, Kalev Sepp, Con Crane, Jack Keane, David Petraeus, Michèle Flournoy, David Kilcullen, Fred and Kim Kagan, James Mattis, Montgomery McFate, Thomas Ricks, Andrew Exum,  the Small Wars Journal and others articulated, proselytized, reported, blogged and institutionalized a version of counterinsurgency warfare now known as “Pop-centric COIN“, selling it to a very reluctant Bush administration, the US Army and USMC, moderate Congressional Democrats and ultimately to President Barack Obama.

The COIN revival and veneration of counterinsurgent icons like Templer and Galula did not really amount a “strategy”; it was an operational methodology that would reduce friction with Iraqis by co-opting local leaders and, for the Bush administration, provide an absolutely critical political “breathing space” with the American public to reinvent an occupation of Iraq that had descended into Hell. For US commanders in Iraq, adopting COIN doctrine provided “the cover” to ally with the conservative and nationalistic Sunni tribes of the “Anbar Awakening” who had turned violently against al Qaida and foreign Salafist extremists. COIN was not even a good theoretical  model for insurgency in the 21st century, never mind a strategy, but adoption of COIN doctrine as an American political process helped, along with the operational benefits, to avert an outright defeat in Iraq. COIN salvaged the American political will to prosecute the war in Iraq to a tolerable conclusion; meaning that COIN, while imperfect, was “good enough”, which in matters of warfare, suffices.

During this period of time and afterward, a fierce COINdinista vs. COINtra debate unfolded, which I will not summarize here, except to mention that one COINtra point was that COINdinistas, especially those in uniform, were engaged in making, or at least advocating policy. For the military officers among the COINdinistas, this was a charge that stung, largely because it was true. Hurt feelings or no, key COINdinistas dispersed from Leavenworth, CENTCOM and military service to occupy important posts in Washington, to write influential books, op-eds and blogs and establish a think tank “home base” in CNAS. Incidentally, I mean this descriptively and not perjoratively; it is simply what happened in the past five years. The COINDinistas are no longer “insurgents” but are the “establishment”.

R2P is following the same COIN pattern of bureaucratic-political proselytization with the accomplished academic theorist Anne-Marie Slaughter as the “Kilcullen of R2P”. As with David Kilcullen’s theory of insurgency, Slaughter’s ideas about sovereignty and R2P, which have gained traction with the Obama administration and in Europe as premises for policy, need to be taken seriously and examined in depth lest we wake up a decade hence with buyer’s remorse. R2P is not simply a cynical fig leaf for great power intervention in the affairs of failed states and mad dictatorships like Gaddafi’s Libya, R2P is also meant to transform the internal character of great powers that invoke it into something else. That may be the most important aspect and primary purpose of the doctrine and the implications are absolutely profound.

Therefore, I am going to devote a series of posts to analyzing the journal article recommended by Dr. Slaughter, “Sovereignty and Power in a Networked World Order“,  which gives a more robust and precise explanation of her ideas regarding international relations, sovereignty, legitimacy, authority and power at greater length than is possible in her op-eds or Atlantic blog. I strongly recommend that you read it and draw your own conclusions, Slaughter’s argument is, after all, about your future.

ADDENDUM – Related Posts:

Slouching Toward Columbia – Guest post: Civilian Protection Policy, R2P, and the Way Forward

Phronesisaical –Dragging History into R2P

Dart-Throwing Chimp – R2P Is Not the New COIN

Committee of Public Safety –With Outstretched Arm | The Committee of Public Safety