State sovereignty and the separation of powers
Sovereignty is not absolute. Universality and human dignity – the principles that are the foundation of human rights – constrain the meaning of state sovereignty.
In the context of international relations, sovereignty is no more or less than the legal identity of a state based upon exclusive jurisdiction within the limits of its national territory combined with the right to autonomously interpret its own national interests and the discretionary authority to act accordingly. Like other legal principles governing jurisdiction, it is not absolute. Indeed, universality and human dignity – those two grand principles that are the foundation of human rights – constrain the meaning of state sovereignty in theory as well as in actual practice. Naturally, to actually realise protection of individuals and collectivities against their own state requires a good deal of judicial activism.
The state is a historical reality that cannot be understood “apart from its realisation in the development of human society” (Dooyeweerd 1957: 411). Its core feature is to present itself as “an institution of the public interest, in which political authority is considered a public office, not a private property” (Dooyeweerd 1957: 412). The link with public justice implies duty rather than mere discretionary power. A real step forward in this connection is the current emphasis on the other side of the sovereignty coin: the “responsibility to protect” (International Development Research Centre 2001). In other words, sovereignty, in the sense of the execution of national authority, implies responsibility in addition to discretion, although the emphasis has been on the latter for too long. (Incidentally, that notion is far from new, as illustrated in the notion of Carence de Souveraineté.19)
Originally, sovereignty as a combined right and duty to execute public-political authority lay with the Sovereign, i.e. the executive. As such, the role of the legislature was to act as a mere consultative assembly for monarchs (Loewenberg 2007). Yet, it is precisely in this branch of public office that the notion of limits to the powers of the state originates. Although they are the bearers of the responsibility to protect, legislatures are nevertheless restrained by their plural nature to being arenas for mere debate rather than effective decision-making bodies (Loewenburg 2007). This is clearly not the case regarding the third branch of state power: the judiciary. In order to protect citizens against any abuse of power that violates their basic rights, members of this institution have to be appointed to an independent position and they must preserve the autonomy of that position in day-to- day judicial decision-making.
Indeed, the importance of creating and maintaining an independent, impartial, competent, legitimate and effective judiciary cannot be overestimated (Bakker 1998). Indeed, sovereignty as “responsibility to protect” confronts us with the complex relationships between the three branches of state power: the legislature, the executive and the judiciary. In each of these, people charged with the execution of state authority – the “government” – are not free to use their powers in a fully discretionary manner, but are bound to principles, rules and values incorporated in laws. Foremost among these is the constitution, which creates a “regime” governing the realisation of public order and justice. In this regard, the relevant notions from a human rights perspective are democracy and the rule of law. In the narrow sense of the legality principle, the rule of law implies that everyone, including the state itself and its functionaries, is subject to the law in the sense of clear and unambiguous rules and standards that generally have no retroactive effect. It is rather questionable whether that would be possible without the fundamental characteristics of a democracy, namely, functioning mechanisms for the substitutability of individuals in power; a judiciary that is impartial, independent and accessible; and general arrangements for the participation of those affected by public-political decision-making. While Singapore, Hong Kong, Oman, Kuwait, Bahrain and the United Arab Emirates are often mentioned as undemocratic instances of an effectively functioning rule of law (Peerenboom 2005; Janse 2008, 20) in actual judicial practice protection of basic freedoms in these countries appears to be rather constrained. The acid test of democracy, as Geoffrey Robertson (1998) once put it, “is a justice system where there is at least a chance, a possibility of beating the state at its own game”. A key concern underlying the effort to incorporate international human rights standards into sovereign political arrangements, in other words, lies in the relations between the three distinct branches of state power. Here, international standards and mechanisms on the limits of national discretion may well play their part.
Addressing the international security deficit
The international security deficit expresses itself in endless manifestations of intra-state collective violence. Grave instances of complete failure of the international community come to mind here, including Rwanda and Srebrenica. Now that the casus belli with regard to Iraq has shifted ex post facto from weapons of mass destruction to gross and systematic human rights violations, it is high timeto develop an international strategy on humanitarian action and intervention, and to restructure the Security Council accordingly. A first step in this direction has already been taken with the shift in emphasis in respect of state sovereignty: from the right to control people within the state’s territory to the responsibility to protect them. In 2001 an International Commission on Intervention and State Sovereignty published a report titled “The Responsibility to Protect” (International Development Research Centre 2001). The United Nations World Summit of September 2005 embraced this responsibility to protect:
Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. (Outcome document 138)
In the next paragraph the international community, through the United Nations, also recognises its responsibility “to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (¶ 139). Security Council Resolution 1674 (adopted on 28 April 2006) reaffirmed these provisions and committed itself to taking action to protect civilians in armed conflict. In February 2008, Secretary-General Ban Ki-moon appointed a Special Adviser for the Responsibility to Protect (R2P in UN SMS jargon) at the Assistant Secretary-General level.
The responsibility to protect constitutes an important shift in the international law doctrine of sovereignty. This principle no longer means “the right to control” people and borders at all costs, but now implies the duty to protect civilians, especially from genocide, war crimes, ethnic cleansing and crimes against humanity. When a state fails to protect its own civilians, that responsibility then falls on the international community in three phases: to prevent, react and rebuild in countries affected by mass suffering and atrocities.
R2P admirably recognises and addresses the root causes of civil conflict in order to prevent atrocities, framing prevention as the foremost duty. It is also the broadest responsibility, as activities that positively contribute to the stability and well-being of a country and its people help to prevent future civil conflict and mass human suffering. The protection of human dignity in line with the golden triangle of human dignity realisation should be interpreted as the centrepiece of these efforts towards prevention.
Prevention efforts may fail, however, which calls for intervention through a range of reaction options, the large majority of which are non-violent, including targeted sanctions and political pressure from neighbouring countries. If military intervention becomes necessary, it must satisfy the “force majeure” threshold, which implies that large scale loss of life must be imminent or actually happening, before any action can be authorised. It must also meet the “threshold criteria”, which include such things as “right intention” and “reasonable prospects of averting suffering”. In order to prevent abuse of a doctrine of humanitarian intervention by powerful states, military action for peace with justice against a “sovereign” state, beyond Chapter 7 of the United Nations Charter and hence without authorisation by the Security Council, has not been regulated in international law. Yet, it may be accepted in practice through acquiescence by the international community, meaning tacit ex-post approval by the Security Council in the first place. The intervention of NATO allies in Serbia/Kosovo is a case in point.
Finally, R2P recognises that without effective rebuilding measures that establish the rule of law, good government and reconstruction, regions recovering from violent conflict are likely to remain confronted with civil strife. This means that development and poverty reduction programmes like education, health, water and food security projects, as well as injustice response programmes like peace building, human security and refugee assistance projects, are encompassed within this new international doctrine.
Since the relevant record of the Security Council is not particularly impressive so far, it is too early to come up with a final assessment here. Yet, the shift from useless references to human rights in Geneva- or New York-based, powerless fora to the day-to- day security agenda of the Security Council might be seen as a first step towards that long-needed global perspective for oppressed peoples. But, it should not be seen as simply an extension of the human rights mission as conceived in legal discourse. R2P plainly confronts the international community with the need to strategically conceptualise human rights as an active discourse in close connection with the two major ventures that form the other points of the golden triangle of human dignity realisation: human security, as based on Franklin D. Roosevelt’s freedom from fear, and human development, as tuned towards Roosevelt’s freedom from want.
People learn human rights not from books but in the actual struggle for the protection of their dignity against abuse of power. Here lies the clue to a new conceptualisation of what was meant by “minority rights”, too. The key issue is a fundamental shift in how to identify the collective subject in need of protection.
As a normative category entitled to international protection, a minority should not be seen as just a group of people in a non-dominant position with access to particular rights, but rather as a collective entity in need of public-political protection against abuse of dominant positions; identification through violation, in other words, rather than legally recognised, seemingly primordial characteristics. To determine abuse of dominant positions, the standards of international human rights law may well serve, meaning primarily the norms of ius cogens such as prohibitions of aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery and torture, and generally the Universal Declaration of Human Rights that was proclaimed by the United Nations General Assembly in 1948:
As a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive . . . to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
While this approach to the “minorities” problematique provides sufficient clarity for integrated policy responses, it cannot form a basis for judicial protection as the legal subject is, and will remain, indefinite. Indeed, the collectivities in need of public-political protection, so called “minorities”, are not primordial categories but collective entities arising out of (deficient) political practice. As such they will benefit from a shift of resources from (quasi-)juridical action towards policies supporting political-economic transformation. After a meaningless start down in the UN hierarchy with the Sub-Commission for the Prevention of Discrimination and the Protection of Minorities, it is high time now to take the security of national collectivities seriously. A new mission might well need a new name. Conceivably, then, a Sub-Council for Protection of National Collectivities might be established directly under the Security Council, the only UN body with real teeth, to operate according to the principles of the newly conceived “Responsibility to Protect” (R2P, see pp. 95–96).42 The normative background for such a new institutional setting lies in the genealogy of universal human dignity rather than that of fundamental rights, and in established global legitimacy rather than declared universal legality. Indeed, in order to effectively protect collective victims of abuse of dominant positions, this whole mission will have to be rooted in not merely human rights, but in the full triangle of human dignity, including human security and human development. In this respect UN Security Council Resolution 1973 (2011) on the creation of a “no-fly zone” in Libya may well be seen as a breakthrough. In that text, the Council authorises member states “to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack” over Libya (emphasis added), excluding only “a foreign occupying force”. Notably, in previous UN terminology reference to repression of a civilian population used to be connected with a qualification of such behaviour as “threatening international peace and security in the region” (see, for example, Resolution 688 (1991)). In the light of Article 42 of the UN Charter, which authorises all military action that “may be necessary to maintain or restore international peace and security” such wording was understandable. In Resolution 1973 (2011), however, the language is fully R2Pbased, with an ensuing focus on crimes against humanity committed against a State’s own population. Thus, almost five years after Resolution 1674 (2006) in which the Security Council committed itself to R2P-based action in order to protect civilians (see p. 95), this new principle of international law can be regarded as a fully legitimate foundation for validating international military action.
Finally, then, there is nothing wrong with rights, including group rights in the sense of “rights of collectivities”. Yet, there are conceptual and contextual difficulties in pursuing efforts to realise such rights. The term “minority”, both as a label and as a concept, does not assist in any way toward overcoming those obstacles: it is here that we encounter a major misconception. What is required now is first to reconceptualise the mission in terms of collective human dignity protection, and second to move that venture from the UN mechanisms for the “promotion and protection of human rights” to an international environment truly conducive to their realisation.
This article is a compilation of different fragments of Bas De Gaay Fortman, Political Economy of Human Rights. Rights, Realities and Realization, Routledge 2011.