Strong State, Weak State:The New Sovereignty and Responsibility to Protect
The Responsibility to Protect doctrine represents a leap forward in accountability for states and does not infringe upon their sovereignty, as states are no longer held to be completely self-contained entities with absolute power over their populations. Rather, there is a strictly defined corpus of actions that begin the R2P process — a process that has different levels of corrective action undertaken by the international community in order to persuade, cajole and finally coerce states into actively taking steps to prevent atrocities from occurring within their boundaries. 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.
R2P traces its roots back to the Holocaust and the subsequent horror of the Allied nations upon discovering Nazi concentration camps and the Final Solution. The phrase “never again” was coined in reference to the mass extermination of Jews, and even though Allied forces were unaware of the extent of the atrocities committed until late in the war, the stage was set for third-party interventions in events occurring solely within the boundaries of a state. Post-conflict accountability measures such as the tribunals at Nuremberg proved to be effective in publicizing the atrocities, but also illustrated the need for states to act on behalf of downtrodden parties prior to the onset of human rights violations — effectively making the case for early warning systems long before the term had entered the human rights vernacular. Indeed, much of the international human rights regime can trace its roots to reactions to the Holocaust, with the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights all finding their genesis in the aftermath of Nuremberg.
Yet after the creation of this corpus of human rights law little was done to promote responsibility to protect as an international behavioral norm. Consequently, actors continued to commit atrocities such as the seen in the Khmer Rouge in Cambodia with little intervention by external powers. This extended to the complete failure of the international human rights regime in the case of the Rwandan Genocide. The world would be witness to another spectacular failure in Srebrenica, where Dutch-led UN forces were helpless to stop the massacre of civilians by the Bosnian Serb Army.
With these failures fresh in mind, the US and NATO sought UN Security Council approval to intervene in the ethnic cleansing of Albanians in Kosovo — the most clear example of R2P prior to the policy’s explicit adoption. Here the lack of Security Council approval for NATO actions within the sovereign boundaries of Kosovo — essentially rendering them illegal — combined with the absence of any concrete action taken against NATO or the United States represented a significant change in the manner in which the international community dealt with issues of sovereignty.
This new sovereignty drew heavily from Deng, et al’s Sovereignty as Responsibility, itself essentially a call for fundamental change in the concept of Westphalian sovereignty. Whereas the older definition of sovereignty considered internal affairs inviolate and beyond the reach of external powers, this new sovereignty reframed the issue. Rather than a blanket declaration of equal sovereignty for all states, Sovereignty as Responsibility changes this constant to be a function of the state’s ability to protect its citizens from harm. For high-functioning states that protect their populations, this effectively results in no change to the Westphalian concept of sovereignty, with non-consensual intervention by external powers still considered verboten and contrary to the UN Charter.
Weak, failing and failed states are where the new definition of sovereignty departs from the Westphalian tradition. Here, the state can no longer effectively protect its citizens from internal or external threats, thereby necessitating third-party intervention. This intervention is the crux of the duty to protect, and rests on several assumptions: that the threats are the result of human-led efforts, not natural disasters; that the threats rise to the level of war crimes, genocide, ethnic cleansing or other crimes against humanity; and lastly that the state is “manifestly failing” in its duties to protect its citizens. The first assumption protects the state against nonconsensual actions in cases where the disaster is not caused by human action or inaction and is thusly unforeseeable. This exception to the protection rule effectively upholds Westphalian sovereignty for all states regardless of their efficacy and agency in the face of natural disaster. 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.
These explicit limitations give anti-R2P advocates little room to maneuver against the concept, as this conduct is regarded as violating jus cogens norms and therefore illegal for all actors, be they state-sponsored or not.
With the recognition that these behaviors are universally illegal, the issue then becomes a matter of whether or not the state can effectively combat them. For the first case of strong states, there is no issue — the state can take responsible care of its own people. For other states, there is a sliding scale against which the ability of the state to respond to atrocities must be measured in order to determine the applicability of R2P and the level of required intervention. R2P principles state that the international community should assist states that are struggling with their responsibilities to increase their capacity to respond to internal stresses. Furthermore, this type of assistance should be the first level of external interaction with states. As situations grow more dire with populations in need of more direct interventions, the state is effectively bypassed, as it has proven that it is no longer a functioning state through its inability or unwillingness to combat and end violations of jus cogens norms.
With the edge cases of a fully functional state and a fully dysfunctional state covered, the confounding middle ground now becomes the pivot point regarding sovereignty and R2P. The question then becomes one of how best to balance the sovereignty of the state with the need to protect its populations. The international community’s best response so far has been to strengthen early warning bodies that can anticipate strife, report it, and facilitate the aforementioned assistance measures in weak states. The General Assembly continues work on establishing credible early warning groups and has noted that coordination and the sifting of such intelligence are the most pressing problems with predicting where atrocities will occur. As the establishment of early warning networks continues, there will be less and less need for military-style interventions as the international community will have the time and space with which to assist states in solving these problems rather than superseding them.
The enabling and assistance of states to solve their own problems — not the usurpation of sovereignty — is at the root of R2P and Sovereignty as Responsibility. Time and again representatives of R2P and the United Nations have expressed their explicit position that the UN wishes to avoid military interventions, but also wishes to prevent atrocities from occurring. This balance is prudent and necessary to ensure that states are fully functioning members of the international community and that any state that requires assistance in carrying out its duties of protection receives it in a timely manner. Effectively, R2P keeps states accountable to their populations and prevents spillover effects from internal strife that may affect nearby states. The spectrum of responses to the four actions and conditions that spark R2P actions ensures that the concept of sovereignty cannot be used as a crutch or shroud to cover up events that the state does not want external actors to see, report on, and ultimately intervene in. R2P promotes a responsible state — responsible to both its populations and to the international community at large. With the increasing interdependence of states in the modern world states can no longer be allowed to slowly descend into chaos while the world sits idly by. R2P and Sovereignty as Responsibility provide methods to ameliorate such slides while ensuring that strong states that maintain responsible care for their people are not affected by unneeded third-party interventions.