The Responsibility to Protect and a Cosmopolitan Approach to Human Protection

The Responsibility to Protect and a Cosmopolitan Approach to Human Protection Samuel James Wyatt

New Security Challenges Series Editor George Christou University of Warwick UK

The last decade has demonstrated that threats to security vary greatly in their causes and manifestations and that they invite interest and demand responses from the social sciences, civil society, and a very broad policy community. In the past, the avoidance of war was the primary objective, but with the end of the Cold War the retention of military defence as the centrepiece of international security agenda became untenable. There has been, therefore, a significant shift in emphasis away from traditional approaches to security to a new agenda that talks of the softer side of security, in terms of human security, economic security, and environmental security. The topical New Security Challenges series reflects this pressing political and research agenda. More information about this series at http://www.palgrave.com/gp/series/14732

Samuel James Wyatt

The Responsibility to Protect and a Cosmopolitan Approach to Human Protection

Samuel James Wyatt Sheffield, UK

New Security Challenges ISBN 978-3-030-00700-3 ISBN 978-3-030-00701-0  (eBook) https://doi.org/10.1007/978-3-030-00701-0 Library of Congress Control Number: 2018954645 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover image: © metamorworks/Shutterstock This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

There are a number of people I would like to thank personally for their support, guidance and expertise in making this book possible. Garrett Wallace Brown, who has been there from the very start of this journey and helped give me the belief that I could complete such a challenging and, at times, overwhelming piece of work; Rhiannon Vickers, who gave me the proverbial kick up the backside I needed at the outset; Kirsty Thomas, whose proof-reading skills and grammatical pedantry proved utterly invaluable; and Palgrave, for giving me the opportunity as a firsttime writer to publish this book. I would also like to thank all of my friends, academic and otherwise. There have been so many that have been there along the way including Lindsey, David, Ali, Lawrence, Daz, Chris, Jojo, Defne, Flo, Tamara, Gary, Tom, Hilal, Phoebe, Valia, Adrian, Tim, Katherine, Sarah… the list is by no means exhaustive. I am so grateful to all of you. Finally, I would like to thank my family. My mother, whose high tolerance threshold and unwavering support (financial and otherwise) helped again to make this all possible; my sister, grandmother and late grandfather, who always believed in me even when I didn’t believe in myself; my nephew David, who is a constant reminder that you should never take life—or yourself—too seriously; and lastly my father, to whom this piece of work is dedicated in its entirety. I hope I made you proud.

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Contents

1 Introduction: The Responsibility to Protect (R2P) and a Cosmopolitan Approach to Human Protection 1 2 The Global Ethics of a Cosmopolitan Approach to Human Protection 25 3 Kant, Habermas and the Constitutionalisation of International Law 63 4 The Responsibility to Protect and Cosmopolitan Human Protection 97 5 The Responsibility to Protect and Cosmopolitan Global Justice 127 6 The Responsibility to Protect and Habermas’ Theory of Constitutionalisation with a ‘Cosmopolitan Purpose’ 151 7 The Responsibility to Protect, Imperialism and Military Intervention in Libya 177

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8 Towards an ‘Even More’ Cosmopolitan Approach to Human Protection: Proposals on Extending the Cosmopolitan Trend 199 9 Conclusion: The Responsibility to Protect and the Move Towards a More Cosmopolitan Approach to Human Protection 237 Bibliography 243 Index 269

CHAPTER 1

Introduction: The Responsibility to Protect (R2P) and a Cosmopolitan Approach to Human Protection

Under the auspices of the Responsibility to Protect (R2P) doctrine, each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity and, in addition, to prevent such crimes, including their incitement, through appropriate and necessary means.1 Furthermore, and should the state manifestly fail to fulfil this primary responsibility, the international community has, through the UN, a residual duty to help protect populations from such violations of human rights and international humanitarian law, as well as to assist states in the prevention of such crimes.2 This book will address the question of whether or not R2P reflects a shift towards a more cosmopolitan approach to human protection in the post-Cold War period. It will argue that it does, articulating that, through the cosmopolitan ethical and, in particular, legal progress that has taken place under the auspices of R2P, the doctrine has engendered a sense of optimism surrounding the evolution towards a more cosmopolitan approach to human protection, both in theory and in practice. In so doing, the monograph undertakes a robust and critical appraisal of the relationship between R2P and both the cosmopolitan form of human protection and Jürgen Habermas’ constitutional cosmopolitan approach. The former provides the basis of the moral relationship prevalent between cosmopolitanism and R2P, whilst the latter offers a framework through which to gauge the cosmopolitan legal developments that have taken place under the aegis of the doctrine. Furthermore, the book © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_1

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will acknowledge that R2P continues to fall short of fulfilling the normative demands of cosmopolitan human protection and, moreover, to comprehensively advance Habermas’ constitutional cosmopolitan approach. Subsequently, it will outline a series of institutional and legal reforms which, if implemented, could strengthen the moral and legal relationship that exists between R2P and such contemporary forms of cosmopolitan theory. In the process, these reforms would come to heighten the sense of optimism that surrounds the transition towards a more cosmopolitan approach to human protection in the post-Cold War period. The decision to assess whether R2P is suggestive of a shift towards a more cosmopolitan approach to human protection is the reflection of a long-standing curiosity with the norms of human rights and human protection and, at the same time, inspired by the global commitment to the protection of such norms that has manifested in the post-Cold War period. This is evidenced by the increasing presence and relevance of a cosmopolitan global ethics within contemporary international relations. This is significant in the light of social commentators, academics, students and political activists who champion the norms of human rights and human protection and, at the same time, in the context of discussions over the right of individual victims to protection and assistance, the host government’s duty to provide such protection and assistance, the international community’s responsibility to act in default and, in particular, outside governments’ right to intervene in the event of systematic human rights violations.3 For example, a new norm of Security Councilauthorised interventions was to develop throughout the 1990s,4 with the post-Cold War period characterised by the emergence and acceptance of a global human rights agenda within the international community.5 More precisely, the years following the Cold War were characterised by a ‘modification’6 to the existing principles of international law—in particular, to the norms of non-intervention and the prohibition against the use of force—with the collective responsibility to promote international peace and security under the rubric of the United Nations (UN) increasingly extended to the protection of global human rights and international humanitarian law. This was reflected in the UN Security Council’s (UNSC) decision to sanction Chapter VII mandates in response to egregious human rights violations in Somalia, Rwanda7 and BosniaHerzegovina and, more broadly, by the morally legitimate—albeit illegal—US-led NATO military operation undertaken in Kosovo. Put simply, military intervention for human protection purposes gradually came to be

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accepted as morally (and, to a lesser degree, both legally and politically) permissible in the face of gross human rights abuses.8 Furthermore, this post-Cold War cosmopolitan trend has continued with the endorsement of the Responsibility to Protect (R2P). R2P represents a codified international principle and emerging constitutional norm that confers a collective responsibility on the international community and, more specifically, UN member states to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity in the event that sovereign governments manifestly fail to do so.9 This responsibility primarily extends to the use of diplomatic, humanitarian and other peaceful means.10 However, and as clarified under former Secretary-General Ban Ki-moon’s 2009 report Implementing the Responsibility to Protect—endorsed by 180 of the UN’s 193 member states—it also extends to the collective use of coercive enforcement measures under Chapter VII of the UN Charter, albeit as a means of last resort.11 As this book will argue, the UN-sanctioned, NATO-led mission Operation Unified Protector conducted in Libya in 2011 represents a watershed moment in the evolution of R2P, with intervention coming to reflect a genuine—and, in the short term, successful—application of the doctrine’s conceptual and legal principles. More recent developments including Donald Trump’s policy of ‘non-­interventionism’ (underscored by his plans to cut contributions to UN peacekeeping operations12 and, in addition, his ‘four pillar’ approach to national security, which makes no mention of human rights),13 the USA’s withdrawal from the United Nations Human Rights Council, the re-election of right-wing Prime Minister Viktor Orban in Hungary, populist gains during the general election in Italy and, finally, the relationship between the mass Libyan and Syrian refugee exodus into Europe and the outcome of the UK’s referendum on EU membership14 are suggestive of a shift away from the language of human rights and the importance of international institutions. However, R2P and, more broadly, cosmopolitan global ethics remain relevant and prevalent within contemporary international relations. R2P embodies a prominent institution of international human rights enforcement within the UN that continues to be invoked in response to egregious human rights violations, constituting a stable and recognisable pattern of rules and related practices that has turned states and the wider international community into ‘agents’ in pursuit of the common goals of international security and, in particular, the protection of global human rights. R2P also continues to garner widespread

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attention in view of the US-led Operation Inherent Resolve undertaken in response to the actions of Islamic State (IS) in Syria, Iraq and Libya, with the coalition offensive motivated in part by the human protection goals intimately bound up with the doctrine. Furthermore, on 10 August 2017, UN Secretary-General Antonio Guterres released his first annual report on the Responsibility to Protect. This emphasised the importance of legal, moral and political accountability to the implementation of R2P and the practical steps that can be taken by member states, intergovernmental bodies and the UN system to strengthen accountability for the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.15 It is acknowledged that much literature already exists on R2P, in particular on the subject of the doctrine’s moral and legal standing within international law. At the same time, commentators have already begun to assess the doctrine’s relationship with cosmopolitanism and, in particular, examine the cosmopolitan moral and legal tenets intimately bound up with the doctrine. However, the advancement of cosmopolitan ethical and legal theory has, in the context of such international developments as R2P, remained both underdeveloped and cursorily assessed.16 At the same time, debates and discussions over the doctrine’s efficacy have only been fleetingly referenced in a cosmopolitan ethical and legal context; whilst Karina Sangha, Johan Alberth, Henning Carlsson, Garrett Brown and Ali Bohm have all alluded to the cosmopolitan ethical norms underpinning R2P, none of these authors have, as yet, discussed or debated these ideas specifically in the context of a cosmopolitan approach to human protection. Sangha, for instance, argues that R2P is centred upon the cosmopolitan premise of ‘moral universalism’, with moral duties conferred on states to protect human rights.17 Should they fail to do so, and given the existence of universal moral principles, these duties are transferred to the wider international community.18 Alberth and Carlsson, meanwhile, emphasise the ‘cosmopolitan tendencies’ prevalent in the 2005 World Summit Outcome Document, with R2P understood to constitute an expression of cosmopolitan morality in view of the primary responsibility of the state to secure the safety and rights of its own population and, in addition, the wider perception of the state as the guarantor of the rights of individuals.19 Furthermore, they argue that R2P has helped to reconceptualise the principles of internal and external sovereignty. This is a consequence of the limits placed on the actions of states within their territories and the residual responsibility conferred on states

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to uphold and engage in human security, in the case of the latter eschewing their autonomy in relation to the wider international community.20 Brown and Bohm, finally, and further to Alberth and Carlsson, argue that the requirement of ‘responsible sovereignty’ under the auspices of R2P is predicated on cosmopolitan principles, with a primary responsibility conferred on political regimes to respect and protect the human rights of their individual members which, if contravened—and in accordance with a cosmopolitan ethics of assistance—yields an international duty to provide military help to those in need.21 Brown and Bohm have also stressed the limits of the relationship between R2P and the ‘poverty and causation’ model of cosmopolitan distributive justice. This is epitomised by the doctrine’s failure to systematically acknowledge the role of the global socio-economic realm in contributing to the conditions of global poverty and inequality conducive to protracted intra-state warfare and, in turn, providing only cursory recommendations on how such conflict-inducing behaviour by influential global actors could potentially be subverted. However, and whilst alluding to the congruence between R2P and cosmopolitan distributive principles, it is important to stress that Brown and Bohm fail to consider or assess this relationship specifically in the context of a cosmopolitan approach to human protection. Instead, they choose to focus on the key characteristics and limitations associated with a cosmopolitan form of humanitarian intervention. Furthermore, Sangha, Alberth, Carlsson, Brown and Bohm have made reference to the relationship between the doctrine and the principles of collective responsibility, conditional state sovereignty and ‘cosmopolitan’ criminal justice that have come to constitute prima facie aspects of R2P. However, none have considered the high watermark and limited thresholds for intervention—including military force—provided for under the doctrine that are similarly coterminous with a cosmopolitan approach to human protection. In addition, very little has been discussed by prominent cosmopolitans in terms of R2P’s engagement with the broader principles of human emancipation, atrocity prevention and human security that are further testament to the ethical norms intimately bound up with R2P and, at the same time, the moral relationship prevalent between the doctrine and cosmopolitan human protection. Further to the limited discussions of the cosmopolitan ethical tenets underpinning R2P and the failure to contextualise the doctrine within a framework of cosmopolitan human protection, nominal reference has

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been made to the cosmopolitan legal norms attached to R2P and, in particular, its nexus with Habermas’ constitutional cosmopolitan approach. Habermas himself has made an important legal connection between his global constitutional model and R2P, alluding to a series of political and institutional reforms—including the doctrine—proposed in 2004 which, subsequently, can be seen to have directed the political will towards a continuation of the ‘Kantian cosmopolitan project’.22 However, limited analysis of the doctrine has taken place within the context of his own global constitutional paradigm. Instead, Habermas chooses to focus almost exclusively on the concept of collective human security contained within the 2004 report A More Secure World: Our Shared Responsibility released by the High-Level Panel on Threats, Challenges and Change. Whilst inexorably linked to R2P, this report is concerned more broadly with the promotion of individual liberties, protection against basic dangers, rights of participation and freedom from unworthy and undignified living conditions,23 primarily through the principle of collective state action. It is acknowledged that Anne Peters and Karel Wellens have begun to assess R2P’s legality24; Blagovesta Tacheva and Garrett Brown have explored the nexus between R2P and the process of constitutionalisation25; Cristina Badescu and Thomas Weiss have considered the doctrine’s locus within Finnemore and Sikkink’s three-stage normative ‘life cycle’ model26; and, finally, Spencer Zifcak has appraised the doctrine’s standing in customary international law.27 However, and whilst Tacheva and Brown have examined the relationship between R2P and a Habermasian moral discourse of norm socialisation,28 no academic has as yet assessed R2P’s legal cogency within the context of Habermas’ global constitutional paradigm. Subsequently, and linked to this book’s overarching research objective, no study has been undertaken of the prospective footing R2P provides for the constitutionalisation and grounding of cosmopolitan ethical norms. Finally, and further to the failure of scholars to link the moral and legal developments that have occurred under the auspices of R2P to broader debates and discussions concerning cosmopolitan human protection and Habermas’ constitutional cosmopolitan approach, none of the existing proposals to change the way in which the doctrine is both institutionalised and operationalised at the global constitutional level have been framed within the context of these respective cosmopolitan typologies. Such proposals include the introduction of an institutional body

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intended to disseminate public rules governing the practice of R2P29 and obliging the UN Security Council’s permanent member states to justify the use of veto in threshold-crossing instances, with an abusive veto deemed to be extraneous or illegal.30 In addition, they include codifying the broader concept of Responsibility while Protecting (RwP) in order to enhance decision-making and strengthen accountability measures in response to acts of genocide, war crimes, ethnic cleansing and crimes against humanity31 and, furthermore, creating a voluntary and independent UN military force.32 Moreover, Heather Roff proposes the introduction of an institutional body concerned with governing the practice of R2P in order to establish a peremptory duty of justice33 which, in turn, represents the fulfilment of a Kantian duty to transition provisional or ‘imperfect’ rights to a condition of perfect rights.34 However, no scholar has as yet proposed changes to the decision-making and enforcement process in respect to the protection of vulnerable populations with the explicit purpose of strengthening the cosmopolitan moral and legal tenets underpinning R2P. Given the absence of a robust and critical appraisal of the relationship between R2P and both the cosmopolitan form of human protection and Habermas’ constitutional cosmopolitan approach, this book undertakes the important and novel task of comprehensively linking the moral and legal developments that have taken place under R2P into broader debates and discussions concerning these respective cosmopolitan typologies. This is with the purpose of enunciating the cosmopolitan moral and legal progress that has occurred—and could yet occur—under the aegis of the doctrine. In doing so, the monograph makes three significant contributions to the existing literature on R2P and contemporary cosmopolitan theory. Firstly, it examines the cosmopolitan ethical tenets underpinning R2P specifically in the context of a cosmopolitan approach to human protection. It argues that the doctrine can be equated with the principles of collective responsibility, conditional state sovereignty, cosmopolitan criminal justice, the provision of delineated thresholds for intervention and cosmopolitan distributive justice—alongside the broader maxims of human emancipation, atrocity prevention and human security—axiomatic of cosmopolitan human protection, testament to the moral relationship prevalent between the doctrine and the cosmopolitan typology. Secondly, the monograph contextualises and assesses R2P’s legal cogency within the framework of Habermas’ global constitutional

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paradigm, articulating that through its locus as a novel and nascent international legal principle incrementally internalised and invoked by UN member states, R2P has tentatively advanced Habermas’ constitutional cosmopolitan approach. In the process, the doctrine has come to strengthen the potential fulfilment of Habermas’ overarching cosmopolitan objective. At the same time, and given its relationship with cosmopolitan human protection, the book argues that R2P provides a platform for the constitutionalisation and grounding of cosmopolitan ethical norms, fostering a sense of optimism over the transition towards a more cosmopolitan approach to human protection in the post-Cold War period. Finally, and given its concern with strengthening the cosmopolitan moral and legal tenets underpinning R2P, the monograph outlines a series of reforms that could, if introduced, have significant and positive implications for the relationship between R2P and both cosmopolitan human protection and Habermas’ constitutional cosmopolitan approach. In the process, such reforms would perpetuate the limited moral and legal progress thus far made towards a more cosmopolitan approach to human protection and, normatively speaking, heighten the sense of enthusiasm that surrounds the evolution towards this cosmopolitan typology. The decision to focus on human protection is a consequence of the norm’s engagement with the maxim of atrocity prevention35 and incorporation of the principles of distributive global justice which, as will become clear, provide a further source of congruence between R2P and cosmopolitan human protection. With regard to R2P, the doctrine is both related to and distinct from a thematic civilian protection agenda developed by the UN Secretary Council (UNSC).36 A ‘new’ politics of protection was to emerge in the twenty-first century, characterised by an explicit focus on civilian protection within the international community,37 an increased willingness within the UNSC to authorise the use of force for human protection purposes, the emergence of regional organisations as ‘gatekeepers’ and the acquiescence of both activist and cautious states to respond to humanitarian crises through the UNSC and relevant regional organisations.38 Indeed, this was to culminate in the 2011 UN-sanctioned, NATO-led military intervention in Libya, which constituted an unprecedented collective determination within the international community to halt a mass atrocity.39 In addition, it represented the first time in history that the UNSC has authorised the use of Chapter

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VII measures against a functioning member state—without its consent— for human protection purposes.40 The emergence of R2P, meanwhile, can be contextualised within this new politics of protection. This is evidenced by its roots in the 2004 Security Council aide-memoire on civilian protection,41 and the concept of collective human security contained within the report of the Commission on Human Security in 2003 and A More Secure World: Our Shared Responsibility released by the HighLevel Panel on Threats, Challenges and Change in 2004.42 Furthermore, the evolution of the doctrine has been consolidated by Resolution 1674 on the protection of civilians—which re-affirmed R2P—and the 2007 working group created by then UN Secretary-General Ban Ki-moon focusing on the UN Security Council’s commitment to protection.43 Relatedly, R2P can also be equated with a politics of prevention.44 More specifically, the doctrine reflects a theoretical consensus amongst UN member states relating to the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity, imparting a primary responsibility on states to prevent their incitement and a subsidiary duty on the international community to assist states in the prevention of such crimes. At the same time, the discourse of atrocity prevention that has manifested under R2P has been perpetuated by the preventive humanitarian measures employed in Kenya in 2007 and Guinea in 2009–2010 which, as will be discussed later in this book, were endorsed under the flag of the doctrine. Furthermore, and alongside its engagement with atrocity prevention, R2P also shares a diminutive relationship with the poverty and causation model of distributive justice. This ‘cosmopolitan’ approach to distributive justice postulates that global actors— including powerful states—have played a pre-eminent role in widening global inequalities and social exclusion through limiting the distribution of resources, perpetuating the conditions conducive to violent and protracted forms of intra-state warfare. Crucially, R2P tacitly acknowledges the role of the global socio-economic realm in contributing to conditions of global poverty and inequality, whilst also providing cursory recommendations on how to address such conflict-inducing behaviour by influential global actors. In the process, the doctrine has come to constitute a budding commitment within the international community to eliminating the gross inequalities that cause large-scale humanitarian crisis, at the same time providing a discursive link between R2P and the poverty and causation model of distributive justice.

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Whilst concerned primarily with responding to human rights crises within endemically weak and abusive states, a cosmopolitan approach to human protection also engages and interacts with the maxim of atrocity prevention. For example, it can be understood to support pre-emptive intervention in cases where intervening parties are convinced that crimes against humanity are imminent,45 whilst also advocating the ‘pre-war’ reconstruction of both political authorities and civil society, in the sense of law and order and in providing the conditions in which alternative political groupings can mobilise.46 Furthermore, any consistent account of cosmopolitan human protection must incorporate principles of distributive global justice—and, more specifically, provide a detailed discussion of, and response to, the underlying global causes of structural violence—in order to be fully consistent with broader cosmopolitan aims.47 These cosmopolitan aims relate to both the establishment and defence of a condition of public right that represents the fulfilment of a ‘cosmopolitan condition’ in which the fundamental right of freedom of all persons is effectively recognised and, in addition, the ‘entitlement’ and duty to use force.48 So, through being inextricably linked to the prevention of humanitarian crises and, in particular, the resolution of the causes of protracted conflict within endemically weak and abusive states, cosmopolitan human protection can be understood to share an implicit relationship with the poverty and causation model of distributive justice. Relatedly, and through its fledgling commitment to eliminating the gross inequalities that cause large-scale humanitarian crisis, R2P has come to tentatively bridge the lacuna between cosmopolitan human protection and cosmopolitan distributive justice. In the process, the doctrine has enhanced the veracity and credibility of cosmopolitan human protection as a contemporary approach to international relations theory, providing a normative and conceptual template through which its failure to adhere to the moral exigencies of cosmopolitan distributive justice can, both in theory and in practice, begin to be subjugated.

Structure and Content This book is organised into seven main chapters. Given the role of cosmopolitan human protection in providing the basis of the moral relationship prevalent between R2P and cosmopolitanism, Chapter 2 examines the key tenets—and limitations—associated with this cosmopolitan typology. Cosmopolitan human protection is most closely linked

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to the work of prominent cosmopolitans including Robert Fine, Mary Kaldor, Daniele Archibugi and David Held and is concerned primarily with re-evaluating the role of institutions, states and non-state actors in any decision to intervene—through the use of force ultima ratio—for humanitarian purposes. The chapter argues that the principles of collective responsibility, conditional state sovereignty, cosmopolitan criminal justice and, in addition, the provision of delineated and limited thresholds for intervention all underpin this cosmopolitan typology. Furthermore, the chapter explores the relationship between cosmopolitan human protection and the broader ethical principles of human emancipation, atrocity prevention and human security. The chapter also critiques both the ethical and institutional variants of cosmopolitan human protection and, importantly, outlines a number of broader weaknesses symptomatic of this cosmopolitan typology. These include its focus on the symptoms and aftermath of conflict, realist, liberal and liberal-nationalist opposition to the scope and demands associated with ‘cosmopolitan’ criminal justice and the proposal to codify humanitarian intervention in international law. Conversely, R2P has begun to address a number of the caveats attached to a cosmopolitan approach to human protection. More specifically, the doctrine has strengthened the cosmopolitan typology’s relevance, credibility and veracity as an approach to contemporary international relations theory and, in addition, weakened the prospect of human protection concerns being used as a smokescreen for the pursuit of state-defined interests at the global constitutional level. Chapter 3 examines the moral and legal dynamics and empirical connotations attached to Habermas’ normative model of global constitutionalism. This approach to international law is concerned with ‘shaping’ the global order according to specific normative principles, thus resting on the extension of principles, norms and rules of constitutionalism beyond the modern state with the objective of constructing a global—and eventually cosmopolitan—legal order. In particular, the chapter engages with Habermas’ claim that the UN is paradigmatic of the evolution from proto-constitutional legal tenets to the constitutional authorities of such a cosmopolitan legal order. A prominent global legal institution situated within a framework of human protection, the UN reflects the foundations of a budding global constitutional order resembling something comparable to a legally constituted community of states

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and, most importantly, their citizens. This is a consequence of the defining characteristics axiomatic of its Charter which, in turn, have come to constitute prima facie aspects of a global constitution. In this way, the UN provides the building blocks for the creation of a global legal identity and form of cosmopolitan citizenship commensurate with Habermas’ modified conception of constitutional patriotism, in the process offering a potential ‘stepping stone’ to the establishment of a cosmopolitan legal order. The chapter acknowledges that the UN has yet to move comprehensively in a cosmopolitan direction, evidenced by the gap that still exists between the UN’s normative commitment to the protection of human rights and the weakness of its enforcement mechanisms. More specifically, it is exemplified by the absence of a legally binding obligation on the wider international community to respond to egregious human rights violations, the continued monopolisation of states over the use of force for human protection purposes and the retention of veto power by the UNSC’s permanent member states. Furthermore, both the power of veto and, in addition, the manifestation and potential proliferation of negative imperialist trends at the global constitutional level have run antithetical to Habermas’ teleological and linear assessment of the constitutionalisation process, further qualifying the potential fulfilment of his overarching cosmopolitan objective. The critical appraisal of Habermas’ constitutional cosmopolitan approach undertaken in Chapter 3 is integral to validating the monograph’s overarching research objective. Through its progressive and evolutionary character, R2P has begun to bridge the gap between political rhetoric and political reality manifest at the global constitutional level, tacitly extending Habermas’ global constitutional paradigm. In addition, through making it more difficult for UN member states to sanction the use of force for anything other than genuine humanitarian reasons, alongside the primacy of human protection concerns in Libya, R2P has begun to address concerns over the ‘misuse’ of the principles of human rights and international humanitarian law. In the process, the doctrine has weakened opposition to Habermas’ teleological and linear assessment of the constitutionalisation process and, consequently, further strengthened the prospective fulfilment of his cosmopolitan legal narrative. Given the monograph’s concern with the prospective constitutionalisation of cosmopolitan ethical norms, Chapter 4 undertakes a robust and comprehensive assessment of the relationship between R2P and the

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global ethics underpinning a cosmopolitan approach to human protection. Whilst acknowledging that the doctrine has yet to fulfil the normative demands of cosmopolitan human protection, the chapter contends that R2P can be equated with the principles of collective responsibility, conditional state sovereignty and the provision of delineated and limited thresholds for intervention coterminous with this cosmopolitan typology. Moreover, R2P confers upon individual states a responsibility to protect the individual rights and freedoms of their populations and a concomitant—albeit subsidiary—duty on the wider international community to protect such rights and freedoms should the state manifestly fail to do so; constitutes a theoretical consensus amongst UN member states relating to the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity and, finally, stresses the continued importance of states to the protection of global human rights. In this way, R2P also engages with the broader maxims of human emancipation, atrocity prevention and human security respectively that lie at the heart of a cosmopolitan approach to human protection. Chapter 5 explores the relationship between R2P and both the distributive and criminal forms of cosmopolitan justice. In the case of the former, the doctrine shares a diminutive relationship with the ‘poverty and causation’ model of distributive justice. This is in view of tacitly acknowledging the importance of the global socio-economic realm in achieving justice for individuals and, at the same time, beginning to provide recommendations on how the global conditions of poverty and inequality conducive to protracted intra-state conflict could potentially be subverted. Thus, R2P has come to reflect a budding international commitment to the eradication of the global inequalities that cause largescale humanitarian crisis, at the same time tentatively bridging the gap between the poverty and causation model of distributive justice and cosmopolitan human protection. Whilst acknowledging that the doctrine has yet to constitute a fully established form of international criminal justice, the chapter also argues that R2P shares a relationship with the ‘cosmopolitan’ model of criminal justice. This paradigm is concerned with intervention—through the use of force as a last resort—and, more specifically, the corresponding duty placed on ‘non-compatriots’ in the form of the wider international community to intervene within a sovereign territory in order to remedy an injustice. In the case of R2P, this is evidenced by the residual duty inculcated on the international community to intervene in instances of

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genocide, war crimes, ethnic cleansing and crimes against humanity in order to remedy an ‘injustice’ and protect people’s fundamental rights and interests. Relatedly, and whilst realist objections to the scope and demands associated with cosmopolitan criminal justice remain both relevant to, and manifest within, contemporary international relations, and the implementation of the doctrine’s principles remains contingent upon a broad confluence of complex and overlapping contextual factors, the chapter also argues that R2P has enhanced the relevance of this cosmopolitan vision of criminal justice. More specifically, the doctrine has countered opposition to this cosmopolitan ideal grounded in the narratives of realism, liberalism and liberal-nationalism. With regard to realist objections predicated on the inclinations, agendas and national interests of sovereign states, for example, R2P has strengthened the presence of ethical considerations at the global constitutional level and helped to reconcile the antagonism between human rights and state sovereignty. Furthermore, the doctrine reflects a conceptual development within international law created, institutionalised and subsequently re-affirmed by a majority of UN member states and has begun to address concerns over the potential ‘misuse’ of the language of human rights and humanitarian intervention. In respect to liberal and liberal-nationalist opposition, meanwhile, the doctrine exhorts the virtues of interna­tional responsibility in lieu of the prioritisation of well-ordered and selfsufficient communities, a just society or the role of co-nationals in advancing principles of distributive justice. In addition, R2P gives equal consideration to the rights and interests of all individuals and imparts a responsibility on other states and the UN to intervene against an illiberal or illegitimate political regime in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. Chapter 6, meanwhile, assesses R2P’s legal cogency within the framework of Habermas’ constitutional cosmopolitan approach. Whilst acknowledging that the doctrine is primarily a conceptual innovation that fails to inculcate a legally binding obligation on UN member states to intervene in the event of genocide, war crimes, ethnic cleansing and crimes against humanity and widespread disagreement exists over the implementation of its conceptual and legal principles, the chapter argues that R2P does add legal value. The doctrine is part of the establishment of a ‘new’ hierarchy of law in which, in theory, states have agreed to limit their sovereign rights should they fail to protect their populations in

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threshold-crossing situations; whilst for the first time, R2P establishes a clear jurisdictional relationship between the authority of the international community exercised through the UN in instances of systematic human rights violations and the authority of sovereigns. In addition, R2P is a novel construct that uses the pre-existing legal principles of multi-level governance and solidarity as ‘building blocks’ for a new international order. Alongside its normative implications, progress under R2P has been evidenced in practice, with the position the doctrine occupies at the high end of the norm cascade spectrum consolidating its status as an emerging constitutional norm within international law. Created, institutionalised and subsequently re-affirmed by a ‘critical mass’ of UN member states, the doctrine has continued to be invoked in relation to a number of post-Cold War humanitarian crises. These include the conflict in Libya in 2011, alongside those in Yemen, Mali, The Democratic Republic of Congo (DRC), the Central African Republic (CAR) and South Sudan. Furthermore, the doctrine continues to garner widespread attention in view of the US-led Operation Inherent Resolve undertaken in response to the actions of Islamic State (IS) in Syria, Iraq and Libya. This is in view of the actions of IS falling under the ambit of potential R2P implementations and the USA, French, Russian and UK air strikes against the organisation in part motivated by the human protection goals intimately bound up with R2P. In this way, the doctrine’s lasting application by UN member states is testament to its role in shaping the international context in which atrocity crimes are committed and, relatedly, the increased willingness of the international community to respond to gross human rights violations within endemically weak and abusive states. The chapter contends that through its locus as a nascent international legal principle, R2P has, both in theory and in practice, strengthened the claim that the UN embodies the foundations of a weak yet emerging global constitutional order resembling something analogous to a legally constituted political community of states and citizens, in the process tacitly extending Habermas’ constitutional cosmopolitan approach. At the same time, and taking into account the doctrine’s nexus with cosmopolitan human protection, R2P has come to provide a platform for the constitutionalisation and grounding of cosmopolitan ethical norms, helping to engender a sense of optimism surrounding the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

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Chapter 7 argues that R2P has reduced the likelihood of human protection being used as a cover for the pursuit of imperialist and, more specifically, self-motivated inclinations germane to powerful states, alleviating wider concerns surrounding the ‘misuse’ of the language of human rights and international humanitarian law. This is despite perceptions of R2P as a ‘Western’ principle, reservations over the doctrine’s application rooted in a discourse of postcolonial critical theory and the occurrence of regime change in Libya. R2P reflects a budding international legal principle endorsed and re-affirmed by a number of non-Western states which, in turn, transcends and ‘dethrones’ the lexicon of humanitarian intervention and its associated caveats. In the case of the latter, this is a consequence of R2P’s engagement with a broad gamut of preventive and reactive humanitarian measures, testament to its status as a multifaceted diplomatic and political agenda that advocates the use of force only as a matter of last resort. In addition, it is a consequence of the doctrine’s provision of a high watermark and limited thresholds for intervention and, furthermore, its efforts to ensure an evidence-based assessment of situations in which acts of genocide, war crimes, ethnic cleansing and crimes against humanity occur. Moreover, and alongside its normative language and rhetoric, the chapter argues that the practice of R2P has similarly lessened the prospect of human protection concerns being used as a cover for the pursuit of state-defined interests at the global constitutional level. This is evidenced by the the UN-sanctioned, NATO-led Operation Unified Protector in Libya which represented a genuine application of R2P’s conceptual and legal principles and, most importantly, was motivated by primarily humanitarian concerns. Indeed, the strong humanitarian credentials that lay at the the heart of the NATO operation were underlined by international condemnation of—and consensus over—the atrocities carried out by the Gaddafi regime, NATO’s subsequent response to the egregious human rights violations committed in Libya and, critically, the positive connotations attached to regime change. In making it more difficult for UN member states to sanction the use of force for anything other than genuine humanitarian reasons, alongside its role in Libya, R2P has concomitantly weakened opposition to Habermas’ linear and teleological assessment of the constitutionalisation process, strengthening the prospective fulfilment of his global constitutional paradigm. Furthermore, the doctrine has provided a framework through which a further weakness symptomatic of cosmopolitan human

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protection—more specifically, its failure in practice to weaken the prospect of intervention being used as a cover for the pursuit of political and economic objectives apposite to powerful states—can begin to be addressed. Therefore, R2P has, both in theory and in practice, helped to reinforce the sense of enthusiasm that already surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. Finally, and given its concern with strengthening the cosmopolitan moral and legal tenets underpinning R2P, Chapter 8 outlines a series of reforms which, if introduced, could strengthen the relationship between R2P and both the cosmopolitan form of human protection and Habermas’ constitutional cosmopolitan approach. With regard to perpetuating the limited cosmopolitan moral progress that has taken place under the doctrine, the chapter recommends fully enumerating R2P in international law, conferring a positive duty on UN member states to intervene in threshold-crossing situations and modifying a state’s perception of its ‘national interest’. In addition, it advances the construction of an independent and voluntary military capacity exclusive to the UN and, furthermore, the introduction and amalgamation of cosmopolitan democratic principles within R2P’s normative and conceptual framework, further enabling the doctrine to both adhere to—and, indeed, perpetuate—the normative demands of cosmopolitan human protection. As for strengthening the legal relationship manifest between R2P and Habermas constitutional cosmopolitan approach, meanwhile, the chapter again recommends enshrining R2P in international law, which would see the doctrine move from an emerging to an established constitutional principle. It also similarly advocates an adjustment to a state’s perception of its national interest and the creation of an independent military capacity exclusive to the UN. The introduction of these reforms would potentially result in R2P being consistently invoked in relation to the secondary international responsibility to protect in instances where state authorities fail to protect their populations. Relatedly, such reforms would, if implemented, come to strengthen the sense in which the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and their citizens. At the same time, therefore, R2P would, both in theory and in practice, provide a more secure platform for the constitutionalisation and grounding of cosmopolitan ethical norms, fostering a greater

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sense of optimism over the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. Finally, the chapter puts forward a series of proposals that would potentially help R2P to address the asymmetrical relationships and further weaken the imperialist trends that continue to run antithetical to Habermas’ linear and teleological assessment of the constitutionalisation process. With regard to the presence of asymmetrical legal relationships at the global constitutional level—exemplified by the continued retention of veto power by the UNSC’s permanent member states—it champions the political reforms put forward under the aegis of cosmopolitan democracy. These reforms would modify the decision-making process in relation to the protection of vulnerable populations and ensure that the implementation of R2P is based on conventional democratic principles, in the process consolidating Habermas’ linear and teleological approach to the constitutionalisation of international law. At the same time, situating R2P within such a comprehensive and robust programme of institutional change would also help to perpetuate Habermas global constitutional paradigm, a consequence of R2P’s status as an emerging constitutional principle. The chapter also suggests modifying R2P’s normative and conceptual framework, principally through the insertion of a clause stipulating that interventions can occur in situations that both implicate and directly involve UNSC members. Relatedly, and as a consequence of these reforms, R2P would help to address the failure of cosmopolitan human protection to mitigate the influence of powerful states over the decision-making process, further reinforcing the sense of enthusiasm that already surrounds the transition towards the cosmopolitan typology in the post-Cold War period. With regard to the continued presence of imperialist trends at the global constitutional level, the chapter proposes the endorsement of the Responsibility while Protecting (RwP) initiative. The codification of RwP’s principles would help to alleviate the unintended consequences of a military intervention and allow the international community to weigh up intervention against the possibility of regime change prior to any sanctioning of a Chapter VII mandate. Consequently, RwP would potentially strengthen international agreement over the implementation of R2P and, in addition, allay concerns that that doctrine could be manipulated or abused in order to interfere in the domestic affairs of sovereign states, once more enhancing the prospective fulfilment of Habermas’ overarching cosmopolitan narrative. In addition, R2P would come to provide

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a more secure empirical framework for addressing a further weakness symptomatic of cosmopolitan human protection—namely its failure in practice to reduce the likelihood of military force being used as a smokescreen for the pursuit of state-defined interests at the global constitutional level—once more reinforcing the sense of optimism that surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

Notes

1.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN. pdf (accessed 15 August 2013), (para. 138). 2. Ibid., (para. 139). 3.  With particular reference to Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 23. 4. See Nicholas Wheeler, ‘The Humanitarian Responsibilities of Sovereignty: Explaining the Development of a New Norm of Military Intervention for Humanitarian Purposes in International Society’, in Humanitarian Intervention and International Relations, ed. Jennifer Welsh (Oxford, Oxford University Press, 2006), pp. 32–33. 5. Whilst Buchan emphasises the role of liberal states in the modification of existing legal rules so as to allow for the effective protection of global human rights, authors such as Snow, Graubart and Chesterman have also focused on the importance of global civil society and prominent individuals such as Mikhail Gorbachev in accounting for the growth of an international human rights agenda. See Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), pp. 51–59; Donald Snow, Uncivil Wars: International Security and the New Internal Conflicts (London, Lynne Rienner, 1996), pp. 46–47; Jonathan Graubart, ‘R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests’. Human Rights Quarterly, 35 (2013), pp. 72, 77; and Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001), pp. 120–21. 6. Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 53. 7. It should be emphasised that ‘Operation Turquoise’—sanctioned under a Chapter VII mandate—was not implemented until after the worst of the atrocities had been committed in Rwanda.

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8. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 2. It is important to note that concerns with human rights and the use of military force pre-date the collapse of the former Soviet Union, underlined by UN action in South Rhodesia in 1965, India’s intervention in East Pakistan in 1971, France’s intervention in the Central African Republic in 1979 and the US operation in Grenada in 1983. For further discussion, see Aidan Hehir, ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’. International Security, 38 (2013), pp. 141–42; James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 49; and Peter Hilpold, ‘Intervening in the Name of Humanity: R2P and the Power of Ideas’. Journal of Conflict and Security Law, 17 (2012), p. 62. 9.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN. pdf (accessed 15 August 2013), (para. 139). 10. Ibid. 11.  Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2014). http://www.unrol.org/doc. aspx?d=2982 (accessed 3 September 2013), (paras. 11 and 49). See also Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), pp. 35–39; Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 14; and Marie-Eve Loiselle, ‘The Normative Status of the Responsibility to Protect after Libya’. Global Responsibility to Protect, 5 (2013), p. 325. 12.  BBC News, ‘Trumps Budget Cuts Would Make UN Peacekeeping “Impossible”’ (BBC, 2017). http://www.bbc.co.uk/news/world-uscanada-40035837 (accessed 30 May 2017). This does not, however, take into account the US-led airstrikes against a Syrian airbase and government sites in response to chemical weapons attacks in the Syrian towns of Kahn Sheikhoun and Douma respectively. 13. BBC News, ‘Trump: Russia and China ‘Rival Powers’ in New Security Plan’ (BBC, 2018). http://www.bbc.co.uk/news/world-us-canada-42401170 (accessed 2 January 2018). 14. Amongst various articles, see in particular Michael Hudson, ‘How Western Military Interventions Shaped the Brexit Vote’ (Real News, 2016). http://therealnews.com/t2/index.php?option=com_content&task= view&id=31&Itemid=74&jumival=1661; Rowena Mason, ‘How Did UK End Up Voting to Leave the European Union?’ (The Guardian, 2016). https://www.theguardian.com/politics/2016/jun/24/how-diduk-end-up-voting-leave-european-union (both accessed 30 May 2017).

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15.  Antonio Guterres, ‘Implementing the Responsibility to Protect: Accountability for Prevention’ (UN, 2017). http://www.globalr2p.org/ media/files/un-secretary-general-2017-report-on-r2p-en.pdf (accessed 27 February 2018). 16. Fabre, for example, has contextualised cosmopolitanism within broader debates over human rights and humanitarian intervention, using cosmopolitan logic to postulate that a people should be able to resort to war in order to overthrow an illegitimate state. Moreover, individuals—as well as states or global institutions—have the right to go to war against unlawful foreign belligerents. However, her approach is controversial, superficial and has yet to be framed within the context of such post-Cold War developments as R2P. See Cecile Fabre, ‘Cosmopolitanism, Just War Theory and Legitimate Authority’. International Affairs, 84 (2008). 17. Karina Sangha, ‘The Responsibility to Protect: A Cosmopolitan Argument for the Duty of Humanitarian Intervention’ (University of Victoria, 2012). http://web.uvic.ca/~cpssa/articles/2012winter001.pdf (accessed 8 April 2015), (paras. 9–14 and abstract). 18. Ibid. 19.  Johan Alberth and Henning Carlsson, ‘Cosmopolitanism, State Sovereignty and UN Reform 2003–2005’ (Linkoping University, 2008). www.iei.liu.se/stat/…/c…/C-uppsatsJohanAlberthHenningCarlsson.pdf (accessed 12 December 2010), (para. 73). 20. Ibid., (para. 76). 21.  Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), p. 16. 22. Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 313. 23. Ibid., pp. 335–36. 24.  See Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), pp. 1–40; Karel Wellens, ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections’, in Solidarity: A Structural Principle of International Law, eds. Rudiger Wolfrum and Chie Kojima (Heidelberg, Springer, 2009), pp. 3–39. This will be returned to in Chapter 6. 25. Blagovesta Tacheva and Garrett Brown, ‘Global Constitutionalism and the Responsibility to Protect’. Global Constitutionalism, 1 (2015), pp. 1–40. 26. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), p. 895. 27. Spencer Zifcak, ‘The Responsibility to Protect’, in International Law, ed. Malcolm Evans (Oxford, Oxford University Press, 2010), pp. 523–25.

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28. Blagovesta Tacheva and Garrett Brown, ‘Global Constitutionalism and the Responsibility to Protect’. Global Constitutionalism, 1 (2015), p. 35. 29. See Heather Roff, Global Justice, Kant and the Responsibility to Protect (Abingdon, Routledge, 2013), Chapter 5. 30.  Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011). 31. Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz. ch/Digital-Library/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013). 32. Again, see Heather Roff, Global Justice, Kant and the Responsibility to Protect (Abingdon, Routledge, 2013), Chapter 5. 33. Ibid. 34.  Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to humanitarian intervention’. European Journal of International Relations, 1 (2015), p. 5. These rights would also be juridicial and enforceable by public law. 35. For example, and whilst humanitarian intervention incorporates a preventive element, it remains a military intervention carried out by a state, group of states or international organisation conducted primarily—albeit but not exclusively—through the use of force. 36. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 827. 37. The UN Secretary-General and other arms of the Secretariat played a particularly important role in establishing this focus. 38. Ibid. 39. See Jon Western and Joshua S. Goldstein, ‘Humanitarian Intervention Comes of Age’ (Foreign Affairs, 2011). https://www.foreignaffairs. com/articles/2011-11-01/humanitarian-intervention-comes-age; Ivo H. Daalder and James G. Stavridis, ‘NATO’s Victory in Libya’ (Foreign Affairs, 2012). https://www.foreignaffairs.com/articles/libya/2012-0202/natos-victory-libya (also accessed 20 January 2016). 40. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 825. See also Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz.ch/Digital-Library/Publications/ Detail/?Ing=en&id=155246 (accessed 15 September 2013), (para. 32); Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 1).

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41. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), pp. 827–28. 42.  See both The Commission on Human Security, ‘Human Security Now’ (CHS, 2003) http://reliefweb.int/sites/reliefweb.int/files/ resources/91BAEEDBA50C6907C1256D19006A9353-chs-security-may03.pdf (accessed 11 February 2016); The High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (UN, 2004). http://www.un.org/en/peacebuilding/ pdf/historical/hlp_more_secure_world.pdf (accessed 12 February 2016). 43. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), pp. 827–28. 44. See Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), pp. 36–38; Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, Cambridge University Press, 2006), p. 257; and Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 72. 45.  With reference to Robert Fine’s appraisal of Nicholas Wheeler in ‘Cosmopolitanism and Violence: Difficulties of Judgement’. British Journal of Sociology, 57 (2006), p. 60. 46. See Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 145. 47.  Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), pp. 8–9. 48. Ibid.

CHAPTER 2

The Global Ethics of a Cosmopolitan Approach to Human Protection

Given its importance in providing the basis of the moral relationship prevalent between cosmopolitanism and R2P—as well as in comprehending the cosmopolitan tenets intimately bound up with the doctrine— this chapter will examine at length the key characteristics and limitations associated with a cosmopolitan approach to human protection. Whilst most closely linked to the work of prominent cosmopolitans including Robert Fine, Mary Kaldor, Daniele Archibugi and David Held, it is important to note that all of these authors have spoken specifically in terms of a cosmopolitan form of humanitarian intervention. In addition, a number of cosmopolitan theorists including Patrick Hayden, Simon Caney and Darrel Moellendorff have explored and helped to reconcile the perennial tension between cosmopolitanism and the use of force, more specifically through their advancement of just war theory.1 In short, cosmopolitan human protection is concerned primarily with re-evaluating the role of institutions, states and non-state actors in any decision to intervene—through the use of force as a last resort— for humanitarian purposes. The rationale for framing the discussion in terms of a cosmopolitan approach to human protection, meanwhile, is a consequence of its relationship with the ‘poverty and causation’ model of cosmopolitan distributive justice and, more broadly, its engagement with the maxim of atrocity prevention. As will become clear, cosmopolitan human protection is inextricably linked to the prevention of © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_2

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humanitarian crises and, in particular, the resolution of the causes of protracted conflict within endemically weak and abusive states. This chapter will consider the two variants to a cosmopolitan approach to human protection: ethical and institutional. The institutional variant will be discussed in view of the caveats attached to its ethical predecessor, its role in further accounting for the development and normative salience of the cosmopolitan typology and its relevance in strengthening the relationship between R2P and cosmopolitan criminal justice.2 However, the main focus of this chapter will be on the ethical form of cosmopolitan human protection. The principles of collective responsibility, conditional state sovereignty, cosmopolitan criminal justice and, in addition, the provision of delineated and limited thresholds for intervention are all axiomatic of this cosmopolitan variant and, as will be explored in later chapters, have come to constitute prima facie aspects of R2P. Furthermore, it will examine the relationship between cosmopolitan human protection and the broader ethical principles of human emancipation, atrocity prevention and human security, all of which again share a close correlation with the doctrine. This chapter will also critique the ethical and institutional variants of cosmopolitan human protection and, importantly, outline a number of broader caveats attached to the cosmopolitan typology. These include its focus on the symptoms and aftermath rather than the underlying causes of protracted intra-state conflict, despite being intimately bound up with the ‘poverty and causation’ model of cosmopolitan distributive justice; realist, liberal and liberal-nationalist recalcitrance to the scope and demands associated with its vision of criminal justice, and its proposal to ensconce the process of humanitarian intervention within international law. This latter proposal could potentially increase the likelihood of human protection being used as a ‘Trojan Horse’ for the pursuit of economic and political interests apposite to powerful states. In addition, it will consider opposition to the requirement of a state or international organisation to authorise and subsequently enforce humanitarian military objectives, with Cecile Fabre postulating that individuals similarly constitute a ‘legitimate body’ and should be able to resort to war against an illegitimate state or unlawful foreign belligerent.3

The Ethical Form of Cosmopolitan Human Protection Whilst various forms of cosmopolitan theory exist within contemporary international relations, all variations of cosmopolitanism are predicated on three basic premises. The first of these is the idea of individualism,

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with individuals rather than states perceived to be the ultimate units of concern and regarded as one another’s moral equals4; states are seen as implicit units of concern in the light of being composed of individual members or citizens, and whatever privileges they possess are relevant only to the extent that they serve individuals’ fundamental rights and interests.5 Second is the notion of egalitarianism, with the status of ‘ultimate unit of concern’ attached to every living human being equally; put simply, all persons are seen to possess an equal moral status.6 Finally, the idea of universalism, with the status of individuals seen as having global force and persons considered subjects of concern for everyone.7 In the process, the duties of common humanity are stretched beyond the domestic realm and into the international sphere.8 At the same time, universalism can be understood to inculcate a moral and collective responsibility on all members of the international community to help protect the rights and freedoms of individual persons. The premise of universalism has played a precipitous role in the appearance of an ethical form of cosmopolitan human protection. Furthermore, Immanuel Kant’s theory of international law has provided a touchstone for the appearance of this cosmopolitan typology. Kantian cosmopolitanism will be discussed further in Chapter 3, but it is important to explore his notion of cosmopolitan law here: in short, cosmopolitan law constitutes part of a tripartite system of public law concerned with the creation and protection of universal laws of hospitality, with the broader objective of establishing a condition of universal or cosmopolitan public right. Cosmopolitan public right can be understood to reflect the fulfilment of a ‘cosmopolitan condition’ in which the fundamental right of freedom of all persons is effectively recognised. In turn, it provides the grounding for a more institutionalised organisation of cosmopolitan law and, eventually, the establishment of a universal moral community in the form of the kingdom of ends.9 Of particular relevance here is Kant’s conception of hospitality, which relates to the right of a stranger not to be treated with hostility when he or she arrives in another’s country.10 For Kant, the universal laws of hospitality are to be applied both internally within a non-coercive federation of independent, liberal11 and like-minded states and externally between federated and non-federated peoples.12 In essence, therefore, Kant moves beyond a form of legal and moral obligation that stops at the borders of sovereign states to one that reaches all members of the globe as if they were equal citizens.13 In this way, Kantian cosmopolitanism can be seen to impart on both states and individuals alike a universal

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and at the same time collective obligation and moral duty to respect and apply the laws of hospitality, conducive to the establishment of a condition of cosmopolitan public right. For Kant, respect for the rights of man is an unconditional and imperative duty for everyone, a right which, in turn, must not be transgressed.14 Whilst a number of academics have contended that Kant was opposed to any form of interference in the affairs of sovereign states (arguing that, from a Kantian perspective, this would endanger the moral personality and legal autonomy of all states, even those with despotic regimes residing outside of the federation),15 Kant can, according to others, also be seen to permit military intervention under certain, specific circumstances. Of relevance here is Burleigh Wilkins contention, predicated on Michael Doyle’s analysis of Kant’s theory of democratic peace16: liberal states will go to war with illiberal ones in order to promote democracy and advance the cause of human rights.17 Doyle contends that the dynamics that promote peace within the federation of liberal states at the same time provoke conflict with despotic regimes, and so Kant provides an account of how republics engage in war with non-republics.18 This claim also resonates with Antonio Franceschet, who argues that Kant’s principle of non-intervention does not apply in instances where there is not an effective contract to constitute a state as a ‘moral person’, thus creating a space to justify humanitarian intervention in cases of extreme political evil such as genocide and crimes against humanity.19 Alongside imparting a universal and collective obligation on states and individuals to respect and apply the universal laws of hospitality, therefore, Kant can also be understood to offer nascent support for military intervention in states situated outside of the foedus pacificum in order to protect vulnerable populations. Relatedly, Kant’s implicit reference to a collective international obligation and, in addition, his fledgling support for humanitarian intervention in instances of systematic human rights violations has provided a key element in the evolution of an ethical form of cosmopolitan human protection. This cosmopolitan variant is, as will become clear, predicated on the belief that there is a universal and, at the same time, collective responsibility on the international community to intervene—through the use of force as a last resort—in cases where gross violations of individual human rights have taken place, a responsibility that both supersedes and takes precedence over broader concerns with preserving the boundaries of sovereign states.

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It should be emphasised at this juncture that the appearance and normative relevance of a cosmopolitan approach to human protection has also been precipitated by the systematic and egregious abuses of human rights that occurred in the post-Cold War period and, in particular, the concomitant failure of the international community to systematically protect these rights in practice. As explained in the introduction to this monograph, a new norm of Security Council-authorised interventions was to develop throughout the 1990s,20 symptomatic of a broader interventionist discourse of human rights protection.21 This was largely as a response to the manifestation of violence within endemically weak and abusive states—for example in Somalia, Rwanda, Bosnia-Herzegovina and Kosovo—with such internal armed conflicts coming to have global consequences.22 However, and despite some notable achievements in the form of the Unified Task Force in Somalia (UNITAF), the United Nations Assistance Mission in Rwanda (UNAMIR) and the United Nations Protection Force in Bosnia-Herzegovina (UNPROFOR),23 the international community’s increasingly normative commitment to the protection of human rights during this period largely failed to translate itself into practice. A comprehensive and robust assessment of the causes of the international community’s failure to systematically protect human rights in the post-Cold War period lies beyond the scope of this book. It should also be stressed that the UN’s shortcomings in response to egregious human rights violations in Somalia, Rwanda, Bosnia-Herzegovina and Kosovo were complex and multi-faceted. This was a reflection of ongoing tensions between the UN and NGOs, insufficient intelligence-gathering capabilities, weaknesses linked to strategy, co-ordination and consultation and ineffective military command structures. Nevertheless, a broad confluence of factors including—but not limited to—the continued preoccupation of the UNSC’s permanent members with preserving the national integrity of sovereign states, pursuing broader economic and political objectives and preventing the loss of troops in conflict situations, alongside caveats attached to both Chapters VI and VII of the UN Charter, either in tandem or in isolation accounted primarily for the international community’s failure to protect vulnerable populations in the immediate post-Cold War period.24 Moreover, the international community’s shortcomings in Kosovo exposed a further weakness—albeit one highly contested—in the shape of the absence of humanitarian intervention within existing customary or statutory international law, with the UN proving

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intransigent in response to large-scale human rights abuses and intervention subsequently being spearheaded by a US-led NATO force. The role of the UN’s failings in Somalia, Rwanda and BosniaHerzegovina in particular in expediting the development and subsequent relevance of a cosmopolitan approach to human protection is reflected in the work of prominent ethical cosmopolitan theorists including Robert Fine and Mary Kaldor. Fine, for example, has argued that support for humanitarian intervention is premised on the urgent need to stop grave humanitarian crimes, alluding to the failure of the international community to act effectively in the face of genocide in Rwanda in 1994 and ethnic cleansing in Bosnia-Herzegovina in the 1990s.25 Mary Kaldor, meanwhile, has assessed the UN’s failure to prevent egregious violations of human rights in Somalia, Rwanda and Srebrenica, arguing that these wars cannot be understood in traditional terms and, as a consequence, adopts a more political approach to resolving such conflicts.26 It should also be emphasised that the institutional variant of the cosmopolitan typology is concerned with creating a set of legal guidelines upon which the legitimacy of humanitarian intervention can be predicated, thus ensconcing the process in international law. As a consequence, this strand attempts to address the problem of powerful states, in particular Russia and China, negating the implementation of a Chapter VII mandate in instances of egregious human rights abuses, a factor prevalent during the conflict in Kosovo.27 In this way, therefore, a cosmopolitan approach to human protection offers a deontological and institutional framework through which a number of the complex dynamics coterminous with the international community’s failure to protect vulnerable populations in the post-Cold War period can, in theory, begin to be subjugated. In delineating a cosmopolitan approach to human protection, it is important to begin with Fine’s attempt to resolve the inherent tension between cosmopolitanism and the use of military force. For Fine, the practice of humanitarian intervention goes to the heart of cosmopolitan aims to defend human rights, raising searching questions about whether and how individuals can be safeguarded against the murderous actions of their own governments.28 Intervention is premised on the notion that the exercise of military force—albeit as a last resort—is both possible and urgently required to stop grave humanitarian crimes.29 Further to Wilkins and Franceschet’s analysis of Kantian discourse, therefore, it is the protection and advancement of individual human rights that helps to bridge the lacuna between humanitarian intervention and the prima facie cosmopolitan principle of non-intervention.

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Patrick Hayden examines more closely the relationship between cosmopolitanism and human rights. As he explains, the cosmopolitan character of such rights is exemplified by their fundamental moral nature, advancement of individual interests and universal disposition.30 In addition, human rights refer explicitly to two normative concepts; persons are regarded as free and equal in worth and dignity and are considered to be entitled equally to certain fundamental rights needed to ensure an existence worthy of human equality and dignity.31 Thus, such rights have come to represent paramount moral claims to certain basic liberties, needs and interests to which all human beings as individuals and members of the human community are equally entitled.32 It so follows, therefore, that human rights are coterminous with the maxims of individualism, egalitarianism and universalism that underpin cosmopolitanism more generally, with broader concerns over their protection coming to provide a key ingredient and motivational element in the appearance of a cosmopolitan approach to human protection. So, whereas Kant is concerned explicitly with establishing conditions of non-interference conducive to the appearance of cosmopolitan public right (in which the fundamental privilege of freedom is proliferated on a global scale), cosmopolitan humanitarian protection is concerned exclusively with the protection of individual human rights, and, in particular, their global advancement in a post-Cold War international order increasingly characterised by violent and protracted forms of intra-state warfare. There are a number of key tenets underpinning the ethical variant of the cosmopolitan typology. The first of these is the notion of universal responsibility, understood to apply to those who have the power not to stand idly by whilst crimes against humanity are being committed, and it is within their capacities to end them.33 Given the continued importance of states to the implementation of military and civilian measures paradigmatic of cosmopolitan law-enforcement,34 as well as their perennial role within the UN, one can extrapolate that by ‘those who have the power’, cosmopolitan human protection is referring primarily to the most powerful states situated within the international community.35 Intimately bound up with the maxim of universalism and, in particular, the idea that duties of common humanity transcend the domestic realm and permeate into the international sphere,36 cosmopolitan human protection can thus be understood to place a universal and, at the same time, collective responsibility on the major powers to intervene (through the use of force as a last resort) in cases of systematic human rights violations. In addition, a positive duty is invoked on the international community to

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protect and enforce human rights, characterised by the presence of ‘positive’ principles pertaining to the securement, protection and promotion of individual human rights claims and the fulfilment of the ‘duties’ correlative to such rights.37 Further to the principle of collective responsibility, Fine argues that in instances of ethnic cleansing, crimes against humanity or genocide, there must be a form of ethical life beyond that of their own38 state to which individuals have a right of appeal and from which they can have a realistic expectation of support.39 For both Fine and Kaldor, the advancement of global human rights claims is understood to both supersede and take precedence over broader concerns with maintaining the sanctity of political borders. Put simply, intervention in the internal affairs of states is seen as justified for the purpose of ending or preventing gross violations of human rights.40 Such a ‘reconceptualization’ of state sovereignty is also intimately bound up with the cosmopolitan typology’s status as a form of immediate international criminal justice,41 concerned as it is with intervention—through the use of force as a last resort—and the corresponding duty placed on ‘non-compatriots’ to intervene within a sovereign territory in order to remedy an injustice. Under the auspices of this ‘cosmopolitan’ vision of criminal justice, intervention within a sovereign state is not justified in those instances where a state affords persons sufficient protection or at the very least does them no unjust harm, a consequence of ‘just’ basic structures and domestic policies.42 However, should a political regime violate or fail to respect people’s human rights, external intervention may be justified.43 In addition, a responsibility falls on ‘external agents’ in the form of powerful states situated within the international community to intervene and protect such rights when they are contravened.44 As such, the sovereignty of the host state is abrogated in the pursuit of such international justice,45 with intervention not deemed a violation of state sovereignty in view of its concern with protecting individual human rights.46 Further to the maxims of collective responsibility, conditional state sovereignty and cosmopolitan criminal justice, the ethical variant of the cosmopolitan typology propagates three criteria that intervention must fulfil if it is to be considered legitimate.47 The first of these is the justification for intervention, with coercive military action only deemed defensible in the context of ‘supreme humanitarian emergencies’.48 As Fine explains, and whilst no cosmopolitan theorist has yet to provide an unambiguous distinction between ‘acceptable’ and ‘unacceptable’ crimes,

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most trade on the idea of crimes that ‘shock the conscience of humanity’.49 Indeed, Fine draws upon Nicholas Wheeler’s ‘crimes against humanity’ incorporating state-sponsored mass murder, mass population expulsions (which fall under the umbrella of ethnic cleansing) and genocide to help define such ‘supreme humanitarian emergencies’.50 Importantly, crimes against humanity, ethnic cleansing and genocide can be understood to have fairly precise legal meaning grounded in the 1948 Genocide Convention, the Rome Statute of the International Criminal Court (ICC) and the practice of the international criminal tribunals for former Yugoslavia and Rwanda51—despite genocide’s conceptual and moral deficiency.52 Thus, a cosmopolitan approach to human protection can be seen to provide delineated and limited thresholds for military intervention. In addition, force is advocated albeit as a means of last resort,53 whilst Fine advocates the introduction of a proportionality threshold54 for intervention coterminous with the theory of ‘just war’ advocated by prominent cosmopolitan theorists including Patrick Hayden, Simon Caney and Darrel Moellendorff.55 The second criterion that humanitarian intervention must fulfil if it is to be considered legitimate concerns the authorisation of military objectives.56 Fine advances the inclusion of NGOs—part of a wider global civil society—and regionally-active civil society groups in any decision to sanction intervention for humanitarian purposes. Kaldor, on the other hand, emphasises the role that locally based civil society groups, in particular, can play in shaping a cosmopolitan response to protracted intra-state conflict.57 According to Fine, NGOs and regional civil society groups may be significant in forming public opinion and influencing the decision to intervene, so much so that they should be granted some form of institutional representation at the global level.58 For some cosmopolitans, such representation could be achieved through the establishment of a World Court, which would determine publicly whether humanitarian crimes were serious enough to merit military intervention.59 Kaldor, meanwhile, touches upon the role of NGOs in drawing attention to violations of human rights and war crimes, and the subsequent impact these organisations have had on the responses and policies of domestic governments and international institutions.60 Crucially, and as Fine explains, the purpose of including NGOs and regional civil society groups in the decision-making process would be to both maximise the role that genuine humanitarian concerns play in deliberations leading up to any decision over the use of force and to minimise the possibility of

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humanitarian concerns acting as a cover for other interests.61 Therefore, the inclusion of such organisations and groups would, from a cosmopolitan perspective, help to mitigate the impact of powerful states and, in particular, moderate the role of state self-interest in the decision whether or not to intervene in the event of gross human rights violations. As a consequence, not only would the integration of NGOs and regional civil society groups into the decision-making process potentially offset the tendency for the major powers to negate the implementation of legally and institutionally binding humanitarian commitments, it would also help to reduce the likelihood of intervention being used as a smokescreen for the pursuit of self-motivated and potentially nefarious objectives germane to powerful states. As explained, Kaldor stresses the need to involve locally based civil society groups in any deliberations surrounding intervention. The inclusion of local populations—working in tandem with the international community—would help to reflect a more political response, marking a shift away from traditional approaches to addressing such conflicts.62 Elaborating further, she argues that consent is required from local populations and, more specifically, the victims of large-scale abuses of human rights.63 This would reflect a new form of cosmopolitan political mobilisation which, from her perspective, could have subverted the ambivalent and limited nature of the UN’s mandates in Bosnia-Herzegovina and the failure to disarm warring factions in Somalia.64 The role of Mohamed Sahnoun, the UN’s special representative for Somalia (who explicitly pursued a ‘civil society’ strategy by including elders, women and neutral clans in a variety of talks), helps to enunciate—albeit contentiously65—the veracity of Kaldor’s claims. Sahnoun adopted a cosmopolitan strategy in the sense of introducing local cosmopolitan initiatives and then attempting to build upon them.66 At the same time, Sahnoun’s approach underlines how, from a cosmopolitan perspective, an effective response would be based on an alliance between international organisations and local advocates of cosmopolitanism in order to reconstruct legitimacy.67 It is also prudent to acknowledge that the inclusion of local populations in any potential discussions surrounding humanitarian intervention could, further to Fine’s appraisal of NGOs and regional civil society groups, be seen as further evidence of the cosmopolitan imperative to mitigate the influence of powerful states over the decision whether or not to intervene in the event of egregious human rights violations.

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The final criterion that humanitarian intervention must fulfil in order to be deemed legitimate relates to military conduct.68 As Fine explains, the most distinctive contribution of this form of cosmopolitanism lies in its account of the changes required in military strategy if militaries are to respond to violations of humanitarian law in a humanitarian way.69 Fine and, in particular, Kaldor advance a model of cosmopolitan law-enforcement that combines both military and civilian strategies and which, importantly, can be understood to help bridge the lacuna between peacekeeping—governed by the principles of consent and minimum force70 and synonymous with Chapter VI of the UN Charter—and peace enforcement. As Kaldor explains, whilst the tasks of cosmopolitan law-enforcement are more closely associated with traditional peacekeeping, this model of intervention falls somewhere between policing and soldiering, with the use of force an integral component of such law-enforcement measures.71 Both Fine and Kaldor also argue that ‘cosmopolitan-minded militaries’ differ from traditional state-based militaries in that, unlike in a situation of war-fighting in which the aim is to maximise casualties on the other side and to minimise casualties on your own side, cosmopolitan law-enforcement is concerned with minimising casualties on all sides.72 Put another way, although force may be required as an ultima ratio measure, the overarching objective of such cosmopolitan-minded militaries is to minimise military and civilian casualties on all sides of the conflict, with cosmopolitan law-enforcement measures potentially coming to occupy the middle ground between peacekeeping and peace enforcement. Furthermore, the strategic imperative underpinning cosmopolitan law-enforcement is not primarily to win wars or overpower an enemy, but to secure the end of state-organised human rights atrocities.73 This leads Kaldor to postulate that the new international ‘soldier-cumpoliceman’ should be prepared to risk his or her life for humanity.74 Indeed, in being willing to endanger their lives, cosmopolitan-minded militaries could help to overcome opposition amongst powerful states to the loss of troops in conflict situations. Although failing to assess the broader context in which such cosmopolitan law-enforcement measures would be established and implemented,75 Fine and Kaldor are concerned with attempting to bridge the gap between peacekeeping and peace enforcement. At the same time, they attempt to resolve the problem of doing either too little in response to gross human rights violations (such as was the case in Rwanda) or too much (as reflected, for example, in

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the indiscriminate and disproportionate levels of force employed in the pursuit of the capture of General Aideed and his key allies in Somalia). Thus, the model of law-enforcement propagated under the aegis of cosmopolitan human protection serves to reinforce how the international community’s failure to systematically protect human rights in practice has provided a cogent template for the evolution and normative salience of the cosmopolitan typology in the post-Cold War period. This is also evidenced by Kaldor’s claim that such law-enforcement measures would be applied impartially, without any sense of discrimination on the basis of either race or religion.76 Alongside the axioms of collective responsibility, conditional state sovereignty and cosmopolitan criminal justice, and in addition to the criteria that intervention must fulfil if it is to be considered legitimate, a cosmopolitan approach to human protection also engages with a number of broader ethical principles. Underpinned by a vision of moral solidarity that extends beyond state boundaries and a sense of concern for the well-being of non-citizen ‘strangers’,77 these principles include human emancipation, atrocity prevention and human security. With regard to human emancipation, firstly, this can be traced back to Kant’s theory of international law and, more specifically, his concern with establishing a condition of cosmopolitan public right in which the fundamental right of freedom of all persons is effectively recognised. For advocates of cosmopolitan human protection, military intervention in instances of ethnic cleansing, crimes against humanity and genocide is necessary in order to protect individual rights and freedoms, a reflection of the broader commitment to protecting populations from political violence and large-scale abuses of human rights. The relationship between atrocity prevention and cosmopolitan human protection, meanwhile, is evidenced by the fledgling discussion of preventive humanitarian measures provided by Fine and Kaldor. Fine, for example, supports pre-emptive intervention in cases where intervening parties are convinced that crimes against humanity are imminent.78 Kaldor, on the other hand, advocates the ‘pre-war’ reconstruction of both political authorities—particularly at the local level—and civil society in the sense of law and order and in providing the conditions in which alternative political groupings can mobilise.79 The relationship between human security and cosmopolitan human protection, finally, is enunciated by the latter’s concern with the principle of collective international responsibility and, in particular, its emphasis

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on the continued importance of states to the implementation of military and civilian measures paradigmatic of cosmopolitan law-enforcement. A phenomenon with its roots in the early 1990s, the concept of human security seeks to enhance human rights, strengthen human development and protect individuals from a broad range of threats. In addition, and underpinning its nexus with the cosmopolitan typology, human security is intimately bound up with the notion that states remain the most important actors for protecting individual human rights and thus realising the security agenda.80

Ethical Cosmopolitan Human Protection: A Critique In summary, the ethical form of cosmopolitan human protection is underpinned by the principles of collective responsibility, conditional state sovereignty and cosmopolitan criminal justice. It also provides a high watermark and limited thresholds for intervention—which includes the use of force as a last resort—and engages with a number of broader ethical principles in the form of human emancipation, atrocity prevention and human security. There are, however, a number of caveats attached to the ethical strand of the cosmopolitan typology. For example, this approach to human protection is both idealistic and utopian in outlook, with any decision to intervene contingent upon the will and compliance of powerful states. This is evidenced by the asymmetrical power relationships prevalent within the UN Security Council.81 The ethical strand of the cosmopolitan typology advocates the inclusion of NGOs (a decision in itself questioned by critical theorists such as David Chandler, in the light of their lack of accountability and genuine ability to influence the policymaking process),82 regional civil society groups and local populations in any deliberations leading up to intervention. However, this represents a quixotic approach to mitigating the impact of powerful states and, at the same time, the role of state self-interest in the decision whether or not to intervene in order to protect vulnerable populations. It also tells us little about how the merging of such organisations and groups into the decision-making process would subsequently be achieved, beyond Fine’s ephemeral reference to the establishment of a World Court. In addition, powerful states remain integral to the implementation of cosmopolitan law-enforcement measures and, more specifically, the construction and composition of the ‘cosmopolitan-minded’ militaries

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advanced by Fine and Kaldor. Whilst reflecting a deontological approach to contemporary international relations theory that describes how military action should be carried out in a more cosmopolitan world, the ethical strand of cosmopolitan human protection says little about what happens in the face of the ‘non-ideal’ complexities of a world order in which powerful states have interests that conflict with cosmopolitan purposes, international humanitarian law lacks reliable enforcement mechanisms and military forces are tied to the organising principle of the nation state.83 As a consequence, it fails to consider or engage with the realities and practicalities of a contemporary international order in which powerful states continue to influence and dictate the measures adopted by the international community in response to large-scale human rights violations, with concerns over preserving the national integrity of autonomous sovereign states and efforts to eschew military casualties, for example, potentially negating the implementation of legally and institutionally binding humanitarian commitments. Moreover, the ethical form of cosmopolitan human protection offers little in respect to how, from an institutional perspective, it would lessen the prospect of humanitarian intervention being used as a cover for the pursuit of state-defined interests at the global constitutional level. This prospect is evident in the Delta Force Operation carried out in Somalia in the 1990s84 and, more recently, the invasion of Iraq in 2003, where the USA and UK attempted to invoke the principles of human rights and international humanitarian law in order to legitimise non-UN-sanctioned coercive enforcement measures.85

The Institutional Form of Cosmopolitan Human Protection In view of the caveats attached to the ethical form of cosmopolitan human protection, commentators including Daniele Archibugi have championed a form of intervention predicated on institutional cosmopolitan principles. At the same time, institutional cosmopolitan human protection provides a framework through which concerns over the prevailing inclinations of powerful states (and their concomitant monopolisation of the decision-making process in relation to the protection of vulnerable populations) can, in theory, begin to be subjugated. Whilst this monograph is concerned primarily with examining the correlation

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between the ethical variant of the cosmopolitan typology and R2P— as well as the legal relationship manifest between the doctrine and Habermas’ constitutional cosmopolitan approach—it is important to consider the key tenets underpinning the institutional form of cosmopolitan human protection. This is in view of both the caveats attached to the ethical variant of the cosmopolitan typology and the role of the institutional strand in further accounting for the appearance and heightened relevance of a cosmopolitan approach to human protection in the postCold War period. Furthermore, as will become clear in Chapter 8, the reforms synonymous with this institutional variant are also apposite to any discussion surrounding the enhancement of the relationship between R2P and the vision of criminal justice innate to cosmopolitan human protection. This is a result of the introduction of a large and cosmopolitan UN standing force potentially strengthening international consensus over the implementation of the doctrine’s conceptual and legal principles and, relatedly, the relevance of cosmopolitan criminal justice. Similarly to its ethical predecessor, the institutional form of cosmopolitan human protection advocates the use of military force as a means of last resort only when systematic violations of human rights are being perpetrated.86 There are four components to this institutional variant. The first of these concerns the establishment of a set of legal guidelines upon which the legitimacy of humanitarian intervention can be predicated, thus ensconcing the process in international law. For Archibugi, the UN International Law Commission—rather than the UN Charter— would be the most appropriate institution to draft guidelines for humanitarian intervention for UN General Assembly approval.87 This is because it would provide a more secure basis for UN law and action.88 At the same time, by enshrining the process within international law, the institutional variant attempts to address the problem of powerful states (in particular Russia and China) negating the implementation of a Chapter VII mandate in instances of egregious human rights abuses. This was prevalent during the conflict in Kosovo,89 further helping to account for the international community’s failure to systematically protect human rights in the post-Cold War period. In addition, a ‘right’ of intervention would, from a cosmopolitan perspective, help to alleviate the tension between human rights and state sovereignty endemic to the UN, with sovereignty predicated on the principles of non-intervention and the prohibition against the use of force contained within the UN Charter.

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The second component of this institutional variant relates to the authorisation of humanitarian military objectives. Whilst preferring the authority of the UN Security Council to unilateral decisions taken by states or state alliances such as NATO,90 Archibugi is quick to draw attention to the asymmetrical relationships prevalent within the world organisation. Such relationships are evidenced by the power of veto, which allows any of the UNSC’s five permanent members—the UK, the USA, France, China and Russia—to legally paralyse the decision-making process.91 This is exemplified by the absence of an UN-sanctioned mandate in Kosovo and, more recently, the failure to reach international consensus in response to the continuing atrocities in Syria.92 Archibugi’s comments are also echoed by Neta Crawford who, in her wider discussion of cosmopolitanism and humanitarian intervention, argues that within the UN the decision to intervene militarily for humanitarian purposes is reserved for a small group of individuals within powerful states.93 This leads her to assert that the democratisation of world politics is required so that the criteria for—and conduct of—humanitarian interventions are decided both legitimately and with accountability.94 Archibugi, meanwhile, advocates the inclusion of NGOs in any global discussions over the necessity of humanitarian intervention.95 In the short term, an independent ‘Council of Experts’ could be created, allowing NGOs such as Amnesty International to deliberate such measures.96 In the long term, NGOs could be incorporated within an empowered World Parliamentary Assembly (WPA)—part of a broader ambit of UN reform—concerned with the protection of human rights and deciding on the need for intervention in matters of survival.97 By advocating the inclusion of NGOs in the decision-making process at an institutional level (and taking into account Archibugi’s incredulity towards the structure of the UNSC), the institutional variant of cosmopolitan human protection is, similarly to its predecessor, concerned with offsetting the tendency for the major powers to negate the implementation of legally and institutionally binding humanitarian commitments. In addition, it looks to weaken the possibility of humanitarian intervention being used as a ‘Trojan Horse’ for the pursuit of economic and political objectives apposite to powerful states. The third component of institutional cosmopolitan human protection builds upon the model of law-enforcement propagated by Fine and, in particular, Kaldor. Archibugi similarly outlines the dichotomy between peacekeeping and peace enforcement, with the former concerned with

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more palatable humanitarian measures and the latter with minimising casualties on the side of intervening forces whatever the cost to opposing military forces and the civilian population.98 He draws upon the examples of Bosnia-Herzegovina and Kosovo in order to emphasise the polarisation between the two extremes.99 As he then explains, any state or political community willing to undertake a genuine intervention should be prepared to risk the lives of its own soldiers in order to save the lives of those in the community threatened,100 with force employed as a matter of last resort when all diplomatic and non-forceful measures have failed.101 Archibugi then transcends the model of law-­enforcement promulgated by Fine and Kaldor by advocating the creation of an UN-appointed Commission of military and civilian members, responsible for preparing guidelines on the methods needed to intervene—including through the use of force—for humanitarian purposes.102 Such a committee would also take responsibility for deciding which methods ought to be used in each humanitarian emergency and deciding whether a military intervention—declared legal by the WPA—is technically feasible.103 Thus, the creation of this commission would provide an institutional framework for the application of ad hoc cosmopolitan law-enforcement measures, helping to ensure that the methods adopted in response to the perpetration of large-scale human rights atrocities are tailored to the specific circumstances of each individual conflict. Furthermore, by supporting the inclusion of both military and civilian members in the formulation of such procedures, institutional cosmopolitan human protection is once more concerned with mitigating the impact of powerful states and, in particular, the role of state self-interest in the decision whether or not to intervene in order to protect vulnerable populations within endemically weak and abusive states. The final component of the institutional form of cosmopolitan human protection—and inextricably linked to its own version of cosmopolitan law-enforcement—concerns the creation of a specialised and ‘cosmopolitan-minded’ military force assigned the task of undertaking humanitarian interventions. This ideal is touched upon by David Held who, in his broader discussion of cosmopolitan democracy,104 argues that a segment of a state’s military could be temporarily transferred to ‘new’ international authorities and placed at their disposal on a routine basis.105 Held does, however, prefer the creation of a permanent and independent military force composed of individuals who volunteer from all countries.106 This preference for a permanent and independent

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force is also supported by Archibugi, who advocates the establishment of a cosmopolitan UN standing force or ‘rescue army’ composed of soldiers, police and civilians drawn from approximately 50 of the largest and most wealthy nations.107 Further to Fine and Kaldor’s support for the introduction of cosmopolitan-minded militaries, such a force would, according to Archibugi, be trained specifically for peacekeeping and humanitarian relief, in the process fulfilling a role more comparable to international ‘policing’ than fighting.108 This would be reflected in its inclusion of doctors, teachers, social workers and engineers, who would have the task of explaining to the civilian population that the intervention has not only military objectives, but also those of welfare and assistance.109 It is, however, important to remember that such a permanent rescue army would also be composed of military personnel prepared to risk their lives in order to protect human rights, with force employed as a matter of last resort.110 Through amalgamating soldiers and civilians, this UN standing force would perform a dual role that falls somewhere between policing and fighting, coming to embody a more advanced form of the militaries postulated by Fine and Kaldor in their discussion of cosmopolitan law-enforcement measures. Thus, the introduction of such a specialised and independent rescue army—deployable at the behest of the UN Secretary-General111—would help to further bridge the gap between peacekeeping and peace enforcement and, at the same time, weaken the monopoly possessed by powerful states over the implementation of humanitarian military objectives. Moreover, it would help to counter the opposition of powerful states to the loss of troops in conflict situations, a dynamic that undermined the international community’s endeavours to address systematic human rights violations in Somalia, Rwanda and Kosovo in the post-Cold War period.112 In summary, four key tenets lie at the heart of the institutional form of cosmopolitan human protection. The first concerns the establishment of a set of legal guidelines upon which the legitimacy of humanitarian intervention can be predicated, thus codifying the process in international law. The second pertains to the authorisation of humanitarian military objectives, democratising the international decision-making process so as to include NGOs in any global discussions over the need for intervention. The third postulates the creation of an UN-appointed Commission of military and civilian members, responsible for preparing guidelines on the methods needed to intervene—through the use

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of force ultima ratio—for humanitarian purposes. The fourth, finally, is reflected in the establishment of a specialised and cosmopolitan-minded military force designated the role of undertaking interventions within endemically weak and abusive states, performing a dual role that falls somewhere between international policing and fighting and, consequently, coming to embody a more advanced form of the cosmopolitan-minded militaries postulated by Fine and Kaldor.

Institutional Cosmopolitan Human Protection: A Critique Similarly to the ethical form of cosmopolitan human protection, there are a series of caveats attached to the institutional strand of the cosmopolitan typology. For example, it is idealistic and utopian in its approach to weakening the influence of powerful states over the decision-­making and enforcement process in respect to the protection of vulnerable populations. As Archibugi himself concedes, the most obvious obstacle to the implementation of such institutional cosmopolitan proposals comes from states, who are highly unwilling to subscribe to multilaterally agreed codes of conduct and would have to agree to both limit their freedom and take on the obligation to participate in something comparable to a humanitarian international ‘Fire Brigade’.113 In other words, the introduction of such a robust and comprehensive programme of cosmopolitan reform would be contingent upon both the compliance of powerful states to give up some of their decision-making power—­particularly in relation to unilateral intervention114—and their willingness to participate in the creation and composition of ‘cosmopolitan-minded’ militaries. The unequal power relationships prevalent within the UNSC (characterised by the continued retention of veto power by the UK, the USA, France, China and Russia), the monopoly possessed by states over the enforcement of humanitarian military objectives and, at the same time, antipathy towards the loss of troops in conflict situations would all appear to run antithetical to the implementation of such institutional cosmopolitan initiatives. Thus, this institutional variant remains, in practice, quixotic in its endeavours to overcome the self-motivated inclinations of states and their concomitant monopolisation of the decision-making and enforcement process in relation to the protection of vulnerable populations.

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A further source of contention can be found in Archibugi’s proposal to ensconce humanitarian intervention in international law. Whilst intended to both resolve the problem of powerful states abrogating the implementation of a Chapter VII mandate in instances of gross human rights violations and alleviate the tension between human rights and state sovereignty endogenous to the UN, such a proposition could paradoxically increase the likelihood of human rights and international humanitarian law being used as a smokescreen for the pursuit of objectives relevant to powerful states. In short, the codification of such measures could amplify the negative imperialist trends and self-motivated tendencies associated with such states, resulting in ‘non-humanitarian’ interventions in which states impose their will on the powerless.115 As emphasised previously, this claim has been given further credence following the Delta Force Operation in Somalia and, more recently, the invasion of Iraq in 2003, where the USA and UK gave considerable weight to the humanitarian case—and violations of international humanitarian norms—in order to legitimise their actions, a position rejected by the wider international community.116 Thus, through its proposal to ensconce humanitarian intervention in international law, the institutional form of cosmopolitan human protection could be seen to perpetuate the likelihood of intervention being used as a cover for the pursuit of state-defined interests at the global constitutional level. In the process, this institutional variant further underlines how cosmopolitan human protection fails to consider or engage with the realities and practicalities of a contemporary international order in which the self-motivated inclinations of powerful states continue in practice to influence and supersede the international community’s broader normative commitment to the protection of individual human rights.

The Cosmopolitan Approach to Human Protection: A Critical Appraisal Thus far, this chapter has examined the key features and limitations of both the ethical and institutional strands of cosmopolitan human protection. Having done so, it will finish by outlining a number of more general weaknesses symptomatic of the cosmopolitan typology. For example, Kant’s prima facie opposition to any form of interference in the affairs of sovereign states (as discussed, predicated on the belief that intervention would endanger the moral personality and legal autonomy of all

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states, even those with despotic regimes residing outside of the federation) would appear to render cosmopolitanism incommensurate with the use of military force. However, and as explained previously, such incongruence has been qualified by the work of Burleigh Wilkins and Antonio Franceschet, who postulate that Kant offers fledgling support for military intervention in states situated outside of the foedus pacificum in order to protect vulnerable populations. It has also been moderated by the concept of human rights, which helps to bridge the gap between humanitarian intervention and the prima facie cosmopolitan principle of non-intervention. A more prominent critique, meanwhile, can be found in the largely ad hoc approach of cosmopolitan human protection to the commission of large-scale human rights atrocities. Whilst the cosmopolitan typology engages and interacts with the principle of atrocity prevention, Fine and Kaldor offer only a limited discussion of preventive humanitarian measures. As explained, this is characterised by a discursive reference to pre-emptive intervention in cases where intervening parties are convinced that crimes against humanity are imminent and, in addition, support for the ‘pre-war’ reconstruction of political authorities and civil society. Furthermore, the ethical variant of the cosmopolitan typology advocates intervention in those cases where ‘supreme humanitarian emergencies’ have occurred or are currently taking place, whilst the institutional form supports the adoption of interventionist measures only when gross violations of human rights are being perpetrated. Indeed, this emphasis on responding to—as opposed to preventing— the commission of widespread human rights atrocities could be linked to the overarching principle of humanitarian intervention per se which, as Caney postulates, embodies a reactive policy adopted after people’s needs or rights have been harmed.117 So, cosmopolitan human protection is concerned primarily with the protection of human rights, as opposed to the prevention of global human rights crises. Crucially, any consistent account of this cosmopolitan typology must also incorporate principles of distributive global justice—and, more specifically, a commitment to eliminating gross inequalities that cause large-scale humanitarian crisis—in order to be fully consistent with broader cosmopolitan aims.118 These aims relate to the creation and defence of a condition of public right (as discussed, the fulfilment of a ‘cosmopolitan condition’ in which the fundamental right

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of freedom of all persons is effectively recognised) and, in addition, the ‘entitlement’ and duty to use force.119 However, and further to its ad hoc approach to egregious human rights violations, cosmopolitan human protection is focused on the symptoms and aftermath of conflict, rather than on providing a detailed discussion of, and response to, the underlying global causes of structural violence and how these relate to the exigencies of cosmopolitan distributive justice.120 Despite being inextricably linked to the prevention of humanitarian crises and, in particular, the resolution of the causes of protracted conflict within endemically weak and abusive states, cosmopolitan human protection fails to adhere to the demands of the ‘poverty and causation’ model of distributive justice advanced by prominent cosmopolitans including Thomas Pogge.121 This model of cosmopolitan distributive justice postulates that influential global actors and powerful states have played a pre-eminent role in widening global inequalities and social exclusion through limiting the distribution of resources, thus precipitating the conditions conducive to violent and protracted forms of intra-state conflict. For example, it argues that the insistence of powerful states on the asymmetrical protections of their markets through the introduction of tariffs, quotas, anti-dumping duties, export credits and huge subsidies to domestic producers impairs export opportunities for the very poorest countries and regions.122 Furthermore, it describes how the enforcement of intellectual property rights means rents must be paid to the corporations of rich countries as a condition for poorer countries’ access to such markets as music and software, production processes and drugs.123 In addition, the vastly disproportional contributions of powerful states to global pollution and resource depletion restrict the consumption possibilities of the global poor, as well as the development possibilities of the poorer countries and regions.124 For Pogge, in particular, the global socio-economic realm is harming the poor through collaborating in imposing an unjust global institutional order upon them, perpetuating large-scale human rights deficits that would be reasonably avoidable through feasible institutional modifications.125 It so follows, therefore, that such activities as altering unjust economic conditions, reforming market conditions and strengthening poverty reductions efforts would reduce the likelihood of conflict, all of which reflect the incorporation of cosmopolitan distributive principles.126 So, alongside its limited discussion of preventive humanitarian measures, cosmopolitan human protection also fails to adhere to the demands of cosmopolitan distributive justice, despite being intimately bound

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up with the latter’s underlying principles in view of its concerns with establishing a condition of public right and the entitled use of force in instances of gross human rights violations. Alongside these caveats, a further weakness of the cosmopolitan typology can be found in the relevance of its vision of criminal justice. As discussed, under the auspices of this concept of justice, intervention may be justified if a political regime violates or fails to respect people’s human rights, with a concomitant responsibility falling on the international community—and, in particular, powerful states—to intervene and protect such rights when they are violated. However, opposition to the scope and demands associated with cosmopolitan criminal justice can be found primarily127 in the narratives of realism, liberalism and liberal-nationalism, all of which have come to largely reject this cosmopolitan ideal. As will be elaborated upon in Chapter 5, realists deem the idea of cosmopolitan criminal justice to be largely extraneous given the prevailing inclinations, agendas and national interests of powerful states, with human protection concerns concomitantly offering a pretext for the pursuit of state-defined interests at the global constitutional level. Liberals such as John Rawls, meanwhile, advance a political—as opposed to moral—theory of justice, promulgating principles of distributive justice within well-ordered and self-sufficient communities whilst at the same time rejecting the idea of a general responsibility to intervene and protect populations within inherently weak and fragile states. Liberal-nationalists, finally, acknowledge the existence of non-contingent and universal relations in which we stand to everyone.128 However, they argue that the demands made on the will of state members to ensure a just society, and, furthermore, the responsibilities placed on co-nationals to advance principles of distributive justice take precedence over the broader duties of the international community to secure the basic rights of people exogenous to the boundaries of states. A final—albeit more qualified—criticism of cosmopolitan human protection concerns its emphasis on the need for a legitimate body in the form of a state or international organisation in order to authorise and subsequently enforce humanitarian military objectives. As discussed, the ethical variant of the cosmopolitan typology alludes to institutional representation—potentially through the establishment of a World Court— for a broad ambit of NGOs and regional civil society groups in order to maximise the role that genuine humanitarian concerns play in the decision-making process. In addition, states remain integral to the implementation of military and civilian measures paradigmatic of cosmopolitan law-enforcement. The institutional form of cosmopolitan human

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protection, meanwhile, provides a framework through which concerns over the prevailing inclinations of powerful states and, in particular, their concomitant monopolisation of the decision-making process in relation to the protection of vulnerable populations can, normatively speaking, begin to be addressed. This is reflected in its proposal to codify humanitarian intervention in international law, alongside its proposals to incorporate NGOs either within a ‘Council of Experts’ or, in the longer term, a WPA (so as democratise the decision-making process) and, furthermore, create an UN-appointed Commission of military and civilian members responsible for preparing guidelines on the methods needed to intervene for humanitarian purposes. In addition, the institutional variant supports the creation of a specialised and ‘cosmopolitan-minded’ military force assigned the task of undertaking humanitarian interventions, more specifically a permanent and independent international standing force composed of soldiers, police and civilians drawn from the world’s 50 largest and most wealthy nations. In contrast to this emphasis on states and international organisations, Cecile Fabre has argued that a people should be able to resort to war in order to overthrow an illegitimate state and that individuals—as well as states or global institutions—have the right to go to war against unlawful foreign belligerents.129 Such a claim is predicated on cosmopolitan logic, more specifically the notion that individuals’ basic entitlements—including human rights130—exist independent of political borders, and it so follows that states have authority only to the extent that they respect and promote those entitlements.131 Should a tyrannical state fail to respect those fundamental rights, and as Fabre explains, it loses its right to compliance and thereby its claim that a people not overthrow it by military force.132 Fabre’s perspective on the ‘legitimate’ use of violence has elicited numerous objections, particularly in view of concerns over the right of an individual to wage war against a political community, the potential for such individuals to paradoxically accentuate human suffering and the likelihood of the jus in bello principle of non-combatant immunity being contravened.133 Nevertheless, it is clear that this version of cosmopolitanism challenges the key ethical and institutional tenets that underpin a cosmopolitan approach to human protection. Under the aegis of this cosmopolitan typology, it is states and, in particular, institutions that act as the ‘legitimate authorities’, with no consideration or appraisal of the rights of individuals to use force in instances of large-scale human rights violations.134

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Conclusion This chapter has critically assessed the institutional and, in particular, ethical strands of cosmopolitan human protection, a normative approach concerned primarily with re-evaluating the role of institutions, states and non-state actors in any decision to intervene—through the use of force as a last resort—for humanitarian purposes. As discussed, the ethical variant of this cosmopolitan typology advances principles of collective responsibility and conditional state sovereignty, cosmopolitan criminal justice and, in addition, provides delineated and limited thresholds for intervention. Moreover, it engages with the broader ethical norms of human emancipation, atrocity prevention and human security. The institutional form of cosmopolitan human protection, meanwhile, is characterised by four key tenets. Firstly, the establishment of a set of legal guidelines upon which the legitimacy of humanitarian intervention can be predicated, thus ensconcing the process in international law. Secondly, the democratisation of the international decision-making process in relation to the protection of vulnerable populations, including NGOs in any global discussions over the necessity of intervention. Thirdly, the creation of an UN-appointed Commission of military and civilian members, responsible for preparing guidelines on the methods needed to intervene—through the use of force ultima ratio—for humanitarian purposes. Finally, the construction of a specialised and cosmopolitan-minded military force designated the task of undertaking interventions within endemically weak and abusive states, performing a dual role that falls somewhere between international policing and fighting. The institutional form of the cosmopolitan typology also offers a framework through which a prominent concern associated with its ethical predecessor—namely states and their concomitant monopolisation of the decision-making process—can, in theory, begin to be subjugated. This chapter has also critiqued the ethical and institutional forms of the cosmopolitan typology, with both variants failing to consider or engage with the realities of a contemporary international order in which the prevailing inclinations, agendas and interests germane to powerful states continue in practice to influence and supersede the protection of individual human rights. In addition, the chapter has explored a number of broader weaknesses associated with cosmopolitan human protection. These include the incongruence between cosmopolitanism and the use of military force (tempered by Kant’s nascent support for military

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intervention and, in addition, the wider concept of human rights), a preoccupation with the symptoms rather than the underlying causes of protracted intra-state conflict and, finally, realist, liberal and liberal-nationalist recalcitrance to the scope and demands associated with the cosmopolitan vision of criminal justice. Moreover, the proposal to codify humanitarian intervention could paradoxically increase the likelihood of international and international humanitarian law being employed as a smokescreen for the pursuit of broader objectives germane to powerful states, whilst the requirement of a ‘legitimate body’ in the form of a state or international organisation in order to sanction and subsequently enforce humanitarian military objectives has, albeit contentiously, been opposed by Cecile Fabre. It is the diminutive nature of the relationship between cosmopolitan human protection and the maxims of cosmopolitan distributive and criminal justice, alongside the contentious proposal to codify humanitarian intervention within international law, that are of particular relevance to this monograph. As will become clear in Chapters 5 and 7, R2P has begun to address a number of the caveats attached to the cosmopolitan typology. In particular, it has strengthened the relevance, veracity and credibility of cosmopolitan human protection as a contemporary approach to international relations and, through weakening the prospect of human protection concerns being used as a cover for the pursuit of self-motivated inclinations relevant to powerful states, helped to reinforce the sense of enthusiasm that already surrounds the evolution towards a more cosmopolitan approach to human protection in the postCold War period.

Notes



1. See Patrick Hayden, ‘Security Beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory’, in Just War Theory: A Reappraisal, ed. Mark Evans (Edinburgh, Edinburgh University Press, 2005), pp. 168–69; Simon Caney, Justice Beyond Borders (Oxford, Oxford University Press, 2006), p. 248; and Darrel Moellendorff, Cosmopolitan Justice (Oxford, Westview Press, 2002), pp. 119–20. 2. This will be returned to in Chapter 8. 3.  Cecile Fabre, ‘Cosmopolitanism, Just War Theory and Legitimate Authority’. International Affairs, 84 (2008), p. 965. 4.  See both Thomas Pogge, ‘Cosmopolitanism and Sovereignty’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held

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51

(Cambridge, Polity Press, 2010), p. 115; Cecile Fabre, ‘Cosmopolitanism, Just War Theory and Legitimate Authority’. International Affairs, 84 (2008), p. 964. 5. Ibid. 6.  Again, see Thomas Pogge, ‘Cosmopolitanism and Sovereignty’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), p. 115. 7. Ibid. 8.  Karina Sangha, ‘The Responsibility to Protect: A Cosmopolitan Argument for the Duty of Humanitarian Intervention’ (University of Victoria, 2012). http://web.uvic.ca/~cpssa/articles/2012winter001. pdf (accessed 8 April 2015), (para. 14). 9.  Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), pp. 437–38. 10.  Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 118. 11. This idea is linked to Kant’s Democratic Peace Theory, put forward by Michael Doyle and predicated on the notion that democracies promote peace between other and, as a consequence, people sharing similar conditions of popular sovereignty are more likely to agree upon universal principles of justice. For further discussion, see Michael Doyle, ‘Kant, Liberal Legacies and Foreign Affairs’. Philosophy and Public Affairs, 12 (1983), pp. 204–35. See also Burleigh Wilkins, ‘Kant on International Relations’. The Journal of Ethics, 11 (2004), p. 158; George Cavallar, ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’. Review of International Studies, 27 (2001), p. 231. 12.  Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), p. 436. 13. Ibid. 14. Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), pp. 138–39. 15.  Ibid., p. 109. See also Burleigh Wilkins, ‘Kant on International Relations’. The Journal of Ethics, 11 (2004), p. 152; George Cavallar, ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’. Review of International Studies, 27 (2001), p. 242; George Cavallar, ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), p. 471; and James Wilson and Jonathan Monten, ‘Does Kant Justify Liberal Intervention?’ The Review of Politics, 73 (2011), p. 637. 16. See previous note.

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17.  Burleigh Wilkins, ‘Kant on International Relations’. The Journal of Ethics, 11 (2004), p. 150. It should be emphasised, however, that political theorists including Cavallar see a contrast between Doyle’s and Kant’s language of ‘rights’ (see ‘Kantian Perspectives On International Peace’, p. 240), elucidated by the fact that Kant is concerned exclusively with establishing a form of cosmopolitan right that transcends the boundaries of sovereign states. 18. Michael Doyle, ‘Kant, Liberal Legacies and Foreign Affairs’. Philosophy and Public Affairs, 12 (1983), pp. 204–35, 323–56. For a brief overview, see also George Cavallar, ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’. Review of International Studies, 27 (2001), pp. 231, 238. 19. See Antonio Franceschet, ‘Kant, International Law and the Problem of Humanitarian Intervention’. Journal of International Political Theory, 6 (2010). 20.  See Nicholas Wheeler, ‘The Humanitarian Responsibilities of Sovereignty: Explaining the Development of a New Norm of Military Intervention for Humanitarian Purposes in International Society’, in Humanitarian Intervention and International Relations, ed. Jennifer Welsh (Oxford, Oxford University Press, 2006), pp. 32–33. 21.  David Chandler, ‘Resilience and Human Security: The Postinterventionist Paradigm’. Security Dialogue, 43 (2012), p. 218. 22.  See Ruti Teitel, Humanity’s Law (Oxford, Oxford University Press, 2011), pp. 34–37. 23. For Rwanda, see in particular Romeo Dallaire, ‘The End of Innocence’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. Jonathan Moore (Oxford, Rowman & Littlefield, 1998). For Somalia, Ioan Lewis and James Mayall, ‘Intervention in Somalia’, in The New Interventionism: 1991–1994, ed. James Mayall (Cambridge, Cambridge University Press, 1996). Finally, for Bosnia-Herzegovina, Spyros Economides and Paul Taylor, ‘Intervention in Former Yugoslavia’, in The New Interventionism: 1991–1994, ed. James Mayall (Cambridge, Cambridge University Press, 1996). 24. Amongst others, see in the case of Rwanda, Romeo Dallaire, ‘The End of Innocence’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. Jonathan Moore (Oxford, Rowman & Littlefield, 1998). For Somalia, Terrence Lyons, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, Brookings Institution, 1995); Ioan Lewis and James Mayall, ‘Intervention in Somalia’, in The New Interventionism: 1991–1994, ed. James Mayall (Cambridge, Cambridge University Press, 1996). For Bosnia-Herzegovina, Spyros Economides and Paul Taylor,

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‘Intervention in Former Yugoslavia’, in The New Interventionism: 1991–1994, ed. James Mayall (Cambridge, Cambridge University Press, 1996); Robert Donia and John Fine, Bosnia-Herzegovina: A Tradition Betrayed (London, Hurst, 1994). And finally in the case of Kosovo, Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001). 25. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 79. 26. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2007), pp. 120–21. 27.  See in particular James Gow, ‘International Engagement and the Yugoslav War of Dissolution’, in International Intervention in Local Conflicts: Crisis Management and Conflict Resolution Since the Cold War, ed. Uzi Rabi (New York, I.B. Tauris, 2010), p. 72; Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001), p. 163. 28. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 79. It should be noted that unlike Kant’s theory of international law, no reference is made to the protection afforded to stateless people. 29. Ibid. 30. Patrick Hayden, ‘Security Beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory’, in Just War Theory: A Reappraisal, ed. Mark Evans (Edinburgh, Edinburgh University Press, 2005), p. 162. 31. Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 100. 32. Ibid., p. 34. 33. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 82. 34. This concept of law-enforcement will be examined later in the chapter. 35.  It is important to emphasise that Fine and Kaldor also support the involvement of NGOs and regionally and locally based civil society groups in any decision to intervene for human protection purposes. 36 Karina Sangha, ‘The Responsibility to Protect: A Cosmopolitan Argument for the Duty of Humanitarian Intervention’ (University of Victoria, 2012).  http://web.uvic.ca/~cpssa/articles/2012winter001.pdf (accessed 8 April 2015), (para. 14). 37. Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 100. 38.  Again, it should be noted that a cosmopolitan approach to human protection makes no reference to the protection afforded to stateless people.

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39. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 81. 40. Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 96. 41. This is discussed specifically in relation to its approach to humanitarian intervention. See Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), p. 7. 42. Darrel Moellendorff, Cosmopolitan Justice (Oxford, Westview Press, 2002), p. 109. 43. See Simon Caney, Justice Beyond Borders (Oxford, Oxford University Press, 2006), p. 232. 44. Ibid., p. 233. 45. See Darrel Moellendorff, Cosmopolitan Justice (Oxford, Westview Press, 2002), p. 104. 46. This can be linked to Moellendorff’s broader discussion of cosmopolitan sovereignty and justified intervention—again, see Cosmopolitan Justice (Oxford, Westview Press, 2002), in particular pp. 119 and 125. 47. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 83. 48. Ibid. 49. Ibid. 50. Ibid. It is, however, a matter of debate whether Wheeler can be considered a cosmopolitan theorist. 51. Alex Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), pp. 623–24. These crimes and their basis in institutionally binding commitments will be explored further in Chapters 4 and 6. 52. Again, for further discussion, see Chapter 4. 53.  See Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 83; Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 133; and Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), pp. 88 and 111. 54. In short, this is the idea that military action should have a reasonable chance of not causing more harm than it solves. 55. See Patrick Hayden, ‘Security Beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory’, in Just War Theory: A Reappraisal, ed. Mark Evans (Edinburgh, Edinburgh University Press, 2005), pp. 168–69; Simon Caney, Justice Beyond Borders (Oxford, Oxford University Press, 2006), p. 248; and Darrel Moellendorff, Cosmopolitan Justice (Oxford, Westview Press, 2002), pp. 119–20.

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56. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 83. 57. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), pp. 128–29. 58. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), pp. 84–85. 59.  See Robert Fine, ‘Cosmopolitanism and Violence: Difficulties of Judgement’. British Journal of Sociology, 57 (2006), p. 61. It should be stressed that Fine is referring explicitly to Daniel Archibugi; however, rather than a World Court, Archibugi advocates the establishment of a World Parliamentary Assembly (WPA) within the UN that would help determine the necessity of humanitarian intervention in matters of survival. 60. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 124. 61. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 84. 62. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 121. 63. Ibid., p. 135. 64.  Ibid., in particular pp. 120–21 and 135. With regard to BosniaHerzegovina, see Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), pp. 178–89; The United Nations, ‘UNSC Resolution 836: Adopted by the Security Council on 4 June 1993’ (UNSC, 1993). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/836(1993) (accessed 26 November 2014). In the case of Somalia, meanwhile, see Terrence Lyons, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, Brookings Institution, 1995), p. 48; Paolo Tripodi, The Colonial Legacy in Somalia: Rome and Mogadishu (Basingstoke, Macmillan, 1999), p. 142. 65. By late 1992, and exacerbated by the UN’s increasing willingness to conduct humanitarian operations in Somalia, Sahnoun’s patient, consensual and localised approach was deemed inadequate. At the same time, media coverage of the ensuing humanitarian crisis and its messages of ‘starving victims’, ‘cruel warlords’ and ‘brave foreign aid workers’ provoked widespread global condemnation and placed pressure on the international community to respond to the atrocities in Somalia with force. See in particular Terrence Lyons, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, Brookings Institution, 1995), p. 31; Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary

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Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 204; Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001), p. 141; and Donald Snow, Uncivil Wars: International Security and the New Internal Conflicts (London, Lynne Rienner, 1996), p. 47. 66. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 130. 67. Ibid., p. 131. 68. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 85. 69. Ibid. 70.  See Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001), p. 119. 71. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 133. 72.  See Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 85; Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 138. 73. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 85. 74. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 139. 75. Under the aegis of the ethical strand of cosmopolitan human protection, states are still integral to the implementation of cosmopolitan law-enforcement measures, and thus retain control over the use of military force. Furthermore, and with regard to the institutional variant of the cosmopolitan typology, the creation and composition of such ‘cosmopolitan-minded’ militaries is still dependent upon the will and compliance of powerful states. 76. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), pp. 135–36. In Somalia, for example, the efforts of UNOSOM II to disarm Aideed’s militias provoked fears of differential advantage and loss of power, re-affirmed by the UN’s decision to focus its disarmament programme on Mogadishu—the USC/SNA’s main base for operations—which created an imbalance whereby Aideed’s USC/SNA forces became much weaker in comparison to other Somali factions. See in particular Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 211; Chen Kertcher, ‘Same Agenda, Different Results: The UN Interventions in Cambodia and Somalia After the Cold War’, in International Intervention in Local Conflicts: Crisis Management and

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Conflict Resolution Since the Cold War, ed. Uzi Rabi (New York, I.B. Tauris, 2010), p. 30. 77. See Jonathan Gilmore, ‘Protecting the Other: Considering the Process and Practice of Cosmopolitanism’. European Journal of International Relations, 20 (2014), pp. 696–97. 78.  See Fine’s appraisal of Wheeler in ‘Cosmopolitanism and Violence: Difficulties of Judgement’. British Journal of Sociology, 57 (2006), p. 60. 79. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 145. 80. This is underlined by the content of the 2004 report A More Secure World: Our Shared Responsibility released by the High-Level Panel on Threats, Challenges and Change and put in place by Kofi Annan as part of a wider programme of UN reform. 81.  And in particular by the continued retention of veto power by the Security Council’s permanent member states. 82.  David Chandler, ‘The Limits of Human Rights and Cosmopolitan Citizenship’, in Rethinking Human Rights: Critical Approaches to Human Rights, ed. David Chandler (Basingstoke, Palgrave Macmillan, 2002), pp. 119–20. 83. This is acknowledged by Robert Fine (see Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 86). 84. See in particular Terrence Lyons, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, Brookings Institution, 1995), pp. 58–59; Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 212. 85. See James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 247; Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’. Ethics and International Affairs, 19 (2005), p. 37. 86.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 4. 87. Ibid., pp. 6–7. This is in the light of the tension between human rights and state sovereignty that has continued to manifest within the UN. 88. Ibid., p. 7. 89. With particular reference once again to both James Gow, ‘International Engagement and the Yugoslav War of Dissolution’, in International Intervention in Local Conflicts: Crisis Management and Conflict Resolution Since the Cold War, ed. Uzi Rabi (New York, I.B. Tauris, 2010), p. 72; Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001), p. 163.

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90.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 8. Archibugi alludes in particular to the unilateral measures undertaken by NATO in Kosovo. 91. Ibid., p. 9. 92. For further discussion, see Chapter 3. 93.  Neta Crawford et al., ‘Roundtable: Humanitarian Intervention After 9/11’. International Relations, 19 (2005), p. 19. 94. Ibid. 95.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 10. 96. Ibid. 97. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), pp. 173–75. 98.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 11. 99. Ibid. In Bosnia-Herzegovina, for example, and despite operating under the guise of Chapter VII of the UN Charter, the United Nations Protection Force (UNPROFOR) II was to constitute a peacekeeping mission rather than a forcible response to aggression or atrocity. Whilst authorised to deter attacks within the designated safe zones, monitor an existing ceasefire and promote the withdrawal of Serbian military and paramilitary units, UNPROFOR II was permitted to use force only as a means of self-defence (see Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), pp. 178–79; The United Nations, ‘UNSC Resolution 836: Adopted by the Security Council on 4 June 1993’ (UNSC, 1993). http://www.un.org/en/ga/search/view_doc. asp?symbol=S/RES/836(1993) (accessed 26 November 2014)), Meanwhile, in Kosovo, the high-altitude aerial bombing campaign carried out by NATO resulted in civilian casualties totalling between 1200 and 5000, whilst it also paradoxically accelerated Milosevic’s ethnic cleansing campaign, mobilising Serbian national sentiment and enabling Milosevic to crack down on NGOs and independent media, in the process minimising domestic constraints on his political activities (see Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 186; Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 141). 100.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 12. 101. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 111.

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102.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 12. 103. Ibid. 104. Cosmopolitan democracy will be discussed in Chapter 8. 105. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995), p. 276. 106. Ibid., p. 276. 107.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), pp. 13–15. 108. Ibid., p. 14. 109. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 202. 110. See Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), pp. 88, 111. 111.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), pp. 13–15. 112. For Somalia, see Terrence Lyons, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, Brookings Institution, 1995), pp. 41–42; for Rwanda, see Romeo Dallaire, ‘The End of Innocence’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. Jonathan Moore (Oxford, Rowman & Littlefield, 1998), p. 79; for Bosnia-Herzegovina, see both Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), pp. 178–79; and Matthew Plain, Invoking the Responsibility to Protect: A Realist Critique (Saarbrucken, Lambert Academic Publishing, 2013), p. 89. 113.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), p. 15. 114. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 203. 115. See in particular Simon Caney, Justice Beyond Borders (Oxford, Oxford University Press, 2006), p. 255. 116. See James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 247; Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’. Ethics and International Affairs, 19 (2005), p. 37.

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117. See Simon Caney, Justice Beyond Borders (Oxford, Oxford University Press, 2006), p. 257. This claim is contentious, particularly when one considers the lack of clarity attached to any definition of humanitarian intervention, alluded to in the introduction to this book. 118.  Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), pp. 8–9. 119. Ibid. 120. Ibid., p. 7. 121.  With particular reference to Thomas Pogge’s ‘World Poverty and Human Rights’ (Carnegie Council, 2005). https://www.carnegiecouncil.org/publications/journal/19_1/aymposium/5109 (accessed 25 May 2017). 122. Ibid., (para. 21). 123. Ibid., (para. 23). 124. Ibid. 125. Ibid., (para. 14). 126.  Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), in particular pp. 9 and 12. 127.  Intimately bound up with the idea of cosmopolitan criminal justice, the broader maxims of ‘cosmopolitan’ sovereignty and humanitarian intervention have also come in for criticism. Moellendorff, for example, considers the theoretical objections to these cosmopolitan ideals rooted in the concepts of relativism, pacifism and self-emancipation (see Cosmopolitan Justice (Oxford, Westview Press, 2002), pp. 111–16). Caney, meanwhile, outlines some of the more general counter-arguments to humanitarian intervention, including its failure to respect a people’s right to self-government, its arrogance, its destruction of international stability and its questionable success rate (see Justice Beyond Borders (Oxford, Oxford University Press, 2006), pp. 235–44). Doyle, finally, assesses the correspondence and incongruence between socialism and military intervention (see ‘International Ethics and the Responsibility to Protect’. International Studies Review, 13 (2011), p. 75). 128.  See Thomas Nagel, ‘The Problem of Global Justice’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), p. 402. 129.  Cecile Fabre, ‘Cosmopolitanism, Just War Theory and Legitimate Authority’. International Affairs, 84 (2008), p. 965. Fabre does acknowledge, however, that in general individuals ought not to resort to war where there is a ‘legitimate authority’ in a better position to do so (p. 975).

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130. Ibid., p. 969. 131. Ibid., p. 964. 132. Ibid., p. 968. 133. Ibid., in particular pp. 971–75. 134. As discussed previously, Kaldor does support the inclusion of local populations and therefore individuals in any discussions surrounding intervention; however, no consideration or acknowledgement is given to the rights of individuals per se to use force in the event of large-scale human rights atrocities.

CHAPTER 3

Kant, Habermas and the Constitutionalisation of International Law

Introduction This chapter will critically assess the moral and legal dynamics and empirical connotations attached to Habermas’ normative model of global constitutionalism. A paradigm that draws upon a number of the key tenets underpinning Kantian cosmopolitanism, Habermas provides a framework that guides the interpretation, progressive development and political reform of legal and political practices beyond the state in order to reflect a commitment to constitutional standards.1 More specifically, his model of global constitutionalism is involved in shaping the global order according to specific normative principles and thus resting on the extension of principles, norms and rules of constitutionalism beyond the modern state with the objective of constructing a global—and eventually cosmopolitan—legal order.2 The chapter will engage with Habermas’ claim that the United Nations (UN) can be seen as paradigmatic of the evolution from proto-constitutional legal tenets to the supranational organisations of a cosmopolitan order.3 A prominent legal institution that sits within a framework of human protection, the chapter will argue that through the defining characteristics or ‘normative innovations’ associated with its Charter, the UN reflects the foundations of a budding global constitutional order resembling something comparable to a legally constituted

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community of states and, most importantly, their citizens. In this way, the UN has come to provide the ‘building blocks’ for the creation of a global legal identity and form of cosmopolitan citizenship coterminous with Habermas’ modified conception of constitutional patriotism, in the process offering a prospective blueprint for the establishment of a cosmopolitan legal order. The chapter will acknowledge that the UN has yet to move comprehensively in a cosmopolitan direction, evidenced by the absence of a legal obligation on the wider international community to respond to egregious violations of human rights, the monopolisation of states over the use of military force and the continued retention of veto power by the UNSC’s permanent members. At the same time, these caveats have served to highlight the gap that still exists between the UN’s normative commitment to the protection of global human rights and the weakness of its enforcement mechanisms and, in turn, how the UN remains a weak and emerging global constitutional order resembling something only comparable to a legally constituted political community of states and their citizens. Furthermore, the power of veto and the manifestation of negative imperialist trends have run antithetical to Habermas’ teleological and linear assessment of the constitutionalisation process. Such detriments have similarly qualified the fulfilment of Habermas’ overarching cosmopolitan objective and, in turn, compounded the claim that the UN remains an as yet incomplete blueprint for the establishment of a cosmopolitan legal order.

Kant’s Theory of International Law As explained in Chapter 2, Kant’s implicit reference to a collective obligation conferred on states and individuals to respect and apply universal laws of hospitality, alongside his fledgling support for humanitarian intervention in instances of systematic human rights violations, have provided a key element in the appearance and normative relevance of an ethical form of cosmopolitan human protection. Whilst this chapter is not concerned with a robust and critical appraisal of Kantian cosmopolitanism, or indeed the relationship between Kant’s discourse and the Responsibility to Protect doctrine,4 it will examine the key tenets underpinning his theory of international law. More specifically, it will consider the role of global processes in the creation of a ‘federation of peoples’ that exists between states, Kant’s commitment to moral norms guiding

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interstate relations and his articulation of cosmopolitan citizenship predicated on a notion of universal ‘rights’,5 all of which have provided the groundwork for Habermas’ theory of constitutionalisation with a ‘cosmopolitan purpose’. Kant is concerned with introducing a tripartite and ‘co-­constituting’6 system of domestic, international and cosmopolitan law, with the purpose of establishing a condition of universal or cosmopolitan ­ public right. Cosmopolitan public right reflects the fulfilment of a ­‘cosmopolitan condition’ in which the fundamental right of freedom of all persons is effectively recognised, in turn providing the grounding for a more institutionalised organisation of cosmopolitan law and, eventually, the creation of a universal moral community in the form of the kingdom of ends.7 Relatedly, a key dynamic and determining factor in the realisation of Kant’s cosmopolitan project is the ‘unsocial sociability’ that exists between both states and individuals, accounted for through the consequences of traditional warfare and global commerce. According to Kant, the tension that exists between men in society is the means by which nature brings about the development of all of their capacities.8 As he elaborates, this tension manifests itself in the form of the ‘sociable’ inclinations of men and their ‘unsociable’ characteristics, the latter of which constantly threatens to destroy the society in which they reside.9 It is the continued friction between isolation and social interaction—the latter of which is embedded in human nature—that has the effect of awakening the senses and accelerating the development of man’s natural capacities.10 The tension between men’s sociable inclinations and unsociable characteristics has its roots in global processes or ‘mechanisms of nature’ in the form of war and global trade. As Garrett Brown explains, whilst individuals are forced to socially relate with one another through forces of global commerce and mutual interest (characterising how, according to Kant, the world has become increasingly interconnected through a system of mutual trade between nations), they are also continuously threatened by the global effects and ramifications of destructive war.11 States, in particular, are positioned in a self-perpetuating ‘pre-political’ condition of anarchy and insecurity.12 Subsequently, through the experiences of conflict and, more specifically, the gradual realisation of the global risks and costs associated with war, particularly in the context of its impact upon the economic requirements of a commercial age in which peaceful exchange is more profitable than plunder,13 states will be

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motivated to leave this pre-political state of nature and enter into a federation of peoples.14 It is prudent to acknowledge at this point that the creation of Kant’s universal moral community—the kingdom of ends—is dependent upon the establishment of a ‘cosmopolitan condition’ in which freedom is at the same time both guaranteed and limited. For Kant, the universal purpose of humanity can only be realised in a society that has not only the greatest freedom, and therefore a continued antagonism amongst its members but combines this with a precise determination and protection of the limits of this freedom, in order that it can coexist with the freedom of others.15 Thus, and as Brown explains, it is in this regard that the practical concern for cosmopolitanism is with creating a global environment where various individuals can mutually develop their capacities, without the consequences of conflict that have been witnessed throughout history.16 In other words, and so that a more peaceful global order can exist, individual freedom must be limited, and it is through the experiences of nature that states and individuals will come to acknowledge that such a provision is required. It is in this way, therefore, that the processes of war and global trade possess a historical and universal purpose for humanity, according to universal principles of right and, in turn, providing a key factor and motivational element in the realisation of Kant’s cosmopolitan project. Further to the limits on individual freedom, Kant puts forwards a concept of global justice that necessitates that a legal condition of public right should exist, so that the freedom of the individual is restricted in such a way so as to secure the freedom of all.17 Kant advocates the creation of a rightful cosmopolitan constitution18 conducive to the appearance of a condition of cosmopolitan right, predicated on a tripartite and co-constituting system of domestic, international and cosmopolitan law. To be more precise, Kant’s conceives of a cosmopolitan constitution that takes the form of a gradually expanding federation of independent and liberally like-minded states, who dedicate themselves to creating a more rightful condition under such a tripartite system of interlocking laws.19 The key tenets underpinning Kant’s theory of international law are contained within his Definitive Articles for Perpetual Peace Among Nations. The first of these articles stipulates that the civil constitution of every nation should be republican,20 corresponding to a form of domestic law that concerns the rights and duties that should exist between

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citizens and their governments.21 For Kant, republicanism—based on the principles of popular and democratic sovereignty—provides the benchmark for all forms of civil constitution. More specifically, republicanism represents a form of government that corresponds with the principles of freedom shared by all members of a given society, with the dependence of everyone on a single, common source of legislation and, in addition, with the law of equality amongst all individuals.22 Put another way, a republican constitution ensures respect for the freedom of individuals by subjecting them to a common source of law, safeguarding their independence as civil subjects and guaranteeing their equality as citizens through providing equal treatment in the eyes of the law.23 Furthermore, Kant argues that Republican states are more conducive to peace as their citizens will be more aware of the dangers and costs of war, and therefore more capable of steering political leaders away from military engagements.24 In short, they are less likely to consent to a declaration of war.25 Thus, a republican constitution is required in order to secure and maintain justice both internally (as explained, subjecting individuals to a common source of law, safeguarding their independence as civil subjects and guaranteeing their equality as citizens) and externally, with like-minded peoples more willing to participate in the legal conditions necessary to underwrite a cosmopolitan legal order.26 This claim is inextricably linked to Kant’s theory of democratic peace, centred on the notion that democracies seemingly promote peace between each other and, as a consequence, people sharing similar conditions of popular sovereignty are more likely to agree on universal principles of justice. Kant’s second definitive article specifies that the right of nations should be based on a federation of free states.27 Kant advances a form of international law predicated on a mutually contracted federation of independent and liberal states, dedicated to the principles of popular sovereignty, peace and mutual international right.28 Whilst individuals are obliged to submit to such a civil condition in view of the lawlessness associated with the state of nature,29 states—although prone to conflict—already have a lawful internal constitution.30 In addition, no state possesses a right to force others into a civil state or international organisation,31 and thus Kant’s foedus pacificum can be understood to represent a non-coercive and voluntary federation of states.32 As explained, it is through the gradual realisation and acceptance of the global risks associated with traditional warfare that states will be

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motivated to leave the pre-political state of nature and enter into a ‘federation of peoples’. Whilst political theorists including Carl Friedrich, Howard Williams and Sidney Axinn have all contended that Kant’s objective was the creation of a world republic predicated on coercive laws,33 Kant himself seemingly rejects this proposal. Indeed, he stresses the linguistic and religious differences that exist between states as well as the increased propensity for conflict that a world republic would create. Instead, Kant supports a non-coercive association that respects the moral personality, legal autonomy and thus political sovereignty of all states, even those with illiberal or despotic regimes that would ultimately reside outside of the federation.34 Kant’s theory of international law is committed not only to the principles of popular sovereignty, peace and international right, but also to the creation and protection of universal laws of hospitality.35 This leads Kant to articulate his third and final definitive article, a state of cosmopolitan public right limited to the conditions of universal hospitality.36 For Kant, the laws of hospitality concern the right of a stranger not to be treated with hostility when he or she arrives in another’s country.37 There are also additional principles of cosmopolitan hospitality that affect all global interactions between individuals, including the right to exit, enter and travel, freedom from negligence and to engage in commerce, and freedom from false or fraudulent contracts.38 Moreover, Kant’s universal laws of hospitality are to be applied both internally within the federation and externally between federated and non-federated peoples.39 Whilst opposing prima facie political interference in the affairs of sovereign states,40 Kant is ultimately concerned with the transformation of these minimal laws of hospitality—and, at the same time, a condition of cosmopolitan public right—into a more institutionalised organisation of cosmopolitan law.41 In turn, this will provide the basis for the creation of a universal moral community in the form of the kingdom of ends.42 As William Smith and Robert Fine explain, such a society would, for Kant, come to represent a kind of global public sphere in which all citizens come to be regarded as legal as well as moral personalities across national boundaries.43 Indeed, this universal moral community would exist between all individuals and states— regardless of national origin or state citizenship44—and thus would also come to include stateless people.45 In summary, Kant is concerned with introducing a tripartite and co-constituting system of domestic, international and cosmopolitan

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law—a cosmopolitan constitution—with the overarching purpose of establishing a condition of universal or cosmopolitan public right. This reflects the fulfilment of a cosmopolitan condition in which the fundamental right of freedom is both recognised and restricted. At the same time, cosmopolitan public right provides the grounding for a more institutionalised organisation of cosmopolitan law and, eventually, the establishment of a universal moral community—and more peaceful law-governed society—in the form of the kingdom of ends. Crucially, it is the ‘unsocial sociability’ that exists between individuals and states (accounted for through the consequences of traditional warfare and global commerce) that provides the key dynamic and determining factor in the realisation of Kant’s cosmopolitan legal order, eliciting an acceptance amongst such actors that restrictions on individual freedom are required and, in turn, motivating states to leave the pre-political state of nature and enter into a ‘federation of peoples’.

Habermas and the Constitutionalisation of International Law Habermas’ constitutional cosmopolitan approach is heavily indebted to Kant, with the idea of the ‘cosmopolitan condition’, in particular, deemed to remain a vital source for our own times.46 Indeed, Habermas emphasises the challenges posed by the catastrophes of the twentieth century and the forces of globalisation—a legacy of Kant’s Idea for a Universal History with a Cosmopolitan Intent—in giving new impetus to the latter’s conception of a cosmopolitan condition.47 However, and whilst building upon a number of the key features of Kantian cosmopolitanism, Habermas’ approach represents in many ways a departure from the principles contained within Kant’s theory of international law. Indeed, Habermas argues that Kant’s cosmopolitan ideal is in need of reformulation and re-conceptualisation in the light of such historical developments as imperialism, totalitarianism and the Cold War throughout the twentieth century which, as he explains, were to undermine the emergence of cosmopolitanism as a political force.48 Of particular importance to his claim is the failure of the League of Nations in 1919. Whilst analogous to Kant’s foedus pacificum in the light of resembling a collective community of states committed to the promotion of international peace and universal ‘rights’ in the form of self-determination

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and the equality of states (consequently helping the ‘Kantian project’ to find its way on to the political agenda),49 the League of Nations failed in its overriding purpose to prevent war.50 Consolidated by the events of World War II,51 Habermas is led to conclude that something more than an association of free and equal consociates under international law is required.52 Instead, Habermas supports the constitutionalisation of international law in such a way that it imposes restraints on the exercise of hegemony by powerful states.53 He argues that what is in fact required is a supranational power—in other words, a constitutional authority—above competing states that would equip the international community with executive and sanctioning powers in order to implement and enforce its rules and decisions.54 For Habermas, the purpose of ‘cosmopolitan law’ is to bypass the collective subjects of international law—states—and directly establish the legal status of individual subjects through granting them unrestricted membership in an association of free and equal world citizens.55 This goal that can only be achieved through the existence of ‘mechanisms’—supranational organisations—specialised in securing peace and implementing human rights worldwide.56 An important starting point in the analysis of the legal and moral dynamics underpinning Habermas’ constitutional cosmopolitan approach can be found in the process of constitutionalisation. By definition, and when used as both a descriptive and reflective device, constitutionalisation refers to the processes of legal codification towards the establishment and incorporation of entities into a coherent and legally objectified body of law, where legal parties, legal rights, legal obligations and legitimate centres of adjudicating power are specified.57 Put simply, it relates to the growth of international law,58 the enlargement and relevance of global legal regimes,59 and acts as a way to describe the expansion and impact of international organisations.60 In addition, constitutionalisation is often presented as a response to the negative61 consequences resulting from globalisation, a process that reflects the intensification of global interconnectedness—political, economic, military and cultural—and the changing character of political authority.62 For its supporters, the increased constitutionalisation of international law could help to reign in states,63 create compliance pull64 and generate a more appropriate response to collective concerns of global crisis.65 Whilst a comprehensive analysis of the various approaches and contributions to the constitutionalisation debate lies beyond the scope of this book, it will allude to the three existing theories or ‘schools’

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of international law. The first of these is the functionalist school. This approach examines the impact of constitutionalism on ‘mapping’66 the global terrain according to new standardised procedures and regulatory agreements.67 Concerned with identifying and explaining processes of constitutionalism at the global level, functionalists focus on the extent to which international constitutions enable or constrain the production of international law.68 Moreover, they provide a descriptive account of the legal processes associated with constitutionalisation, often focusing on international legal arrangements and their corresponding authority mechanisms which, in comparison with the legal orders found within states, are seen to generate compliance pull, a rule of law and formal legal obligation.69 The EU, for example, can be seen as indicative of this functionalist approach, delineating and codifying legal rights and obligations whilst bringing all member states under the remit of European law.70 The second, meanwhile, is the pluralist school, which includes those who consider mapping and ‘shaping’—contributing to the processes of constitutionalism through proposals for legal or political innovation—constitutional quality beyond the state as of equal importance.71 In contrast to the functionalist school, pluralists take a more critical and reflective approach to the constitutionalisation process. In particular, they draw attention to various shortcomings and injustices within contemporary international law—such as global inequality and the structural abuse of power—so as to link key normative principles to the understanding of what a ‘global constitution’ should or shouldn’t look like.72 Many, for example, would question the uncritical reference to the regulative idea of neo-Kantian federalism or the liberal community ideal often referred to in international relations theory as stable and regulative frames for constitutional change in the global realm.73 The third—and most important in the context of this monograph— is the normative school. This approach to international law is concerned with shaping the global order according to specific normative principles and thus resting on the extension of principles, norms and rules of constitutionalism beyond the modern state with the objective of constructing a global (and, with specific reference to Habermas, an eventually cosmopolitan) legal order.74 It forms the basis of Habermas’ normative model of global constitutionalism, a legal and moral framework that guides the interpretation, progressive development and political reform of legal and political practices beyond the state in order to reflect a commitment to

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constitutional standards.75 In the light of such developments as imperialism, totalitarianism and the Cold War and, furthermore, the failure of the League of Nations in 1919, Habermas recommends imposing restraints on the influence of powerful states. He also presents the constitutionalisation of international law as an alternative to realist and ethical conceptions of the primacy of power over law, with the former rooted in classical international law and the latter epitomised by the ‘hegemonic unilateralism’ paradigmatic of the USA.76 For Habermas, the incremental expansion of international law and institutional regimes under the ambit of constitutionalisation77 would see the classical function of the state as the guarantor of security, law and freedom78 transferred to supranational institutions. This, in turn, would help to equip the international community with the sanctioning powers required to implement and enforce its decisions.79 What are required for Habermas are legislative and adjudicative bodies—in other words, constitutional authorities—that place upon states a collective and legally-binding obligation to respect and apply international laws and regulations, helping to establish a ‘legally-constituted’ community of states capable of taking political initiatives and executing joint decisions.80 At the same time, and through bypassing the collective subjects of international law—states—and directly establishing the legal status of individual subjects, such authorities are integral to the institutionalisation and protection of universal or cosmopolitan human rights and, in turn, the entrenchment of the legal status of ­cosmopolitan citizens on the global stage.81 In this way, Habermas model of global constitutionalism is concerned not only with creating a legally constituted global political community of states but, through the advancement of cosmopolitan human rights, also their citizens. Before examining more closely the conditions required for the establishment of Habermas’ cosmopolitan legal order, it is important to explore the relationship between global constitutionalism and globalisation. As Habermas explains, the twentieth century has given rise to a set of global problems such as monetary crises, ecological dangers and transnational terrorism that cannot be addressed adequately by nation states acting independently.82 At the same time, the worldwide expansion of trade, production, financial markets, news and communications inter alia under the auspices of intense globalisation have entangled states in the dependencies of an increasingly interconnected global society, whose functional capabilities effortlessly bypass territorial boundaries.83 As a consequence, the capacity of states for autonomous action,

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alongside their overarching democratic substance, has become increasingly eroded.84 It is important to acknowledge at this point that for Habermas, states still constitute the most important collective actors on the global political stage and remain an integral source of democratic praxis. This is epitomised by the guarantee of equal opportunity they provide for citizens to make use of their rights.85 However, faced with a growing reduction in their functional capabilities, he postulates that in order for states to remain a source of democratic legitimacy, they would need to coalesce into supranational and transnational86 groupings with centralised institutions and decision-making capabilities, a postnational solution to the erosion of national power.87 Thus, globalisation is seen as a process that perforates national or state borders, undermines familiar roots of legitimacy and leads to calls for new forms of checks and balances as a result.88 Habermas also points to the EU as evidence of such a new supranational grouping.89 This is evidenced by the Brussels Convention90—now re-cast as the Brussels Regulation—the marrying of fragmented national state actors to European market integration and the harmonisation of different national taxation, social and economic policies.91 In this way, the consequences of globalisation can be understood to provide an ‘accommodating trend’ in the realisation of Habermas global constitutional model, motivating states to increasingly direct their interests into new channels of ‘soft’ political influence in the form of international and transnational organisations.92 In order to understand the transition from a global to a cosmopolitan legal order, it is necessary to explore Habermas’ modified conception of constitutional patriotism. In its most basic form, constitutional patriotism refers both to a shared attachment towards universalistic principles— including human rights—implicit in the idea of constitutional democracy and, furthermore, to the actualisation of these principles in the form of particular national institutions, acting as a bridge between the ideas of the ‘universal’ and the ‘particular’.93 Constitutional patriotism provides a means through which respect for constitutionally regulated processes of national politics rooted within states can be reconciled with the authority of cosmopolitan institutions,94 helping to nurture a sense of attachment to one’s country whilst remaining compatible with the transformed self-consciousness of world citizens.95 Through generating a sense of ‘national consciousness’, constitutional patriotism helps to foster loyalty to the principles underpinning a particular national constitution, whilst

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at the same time inculcating a willingness on the part of citizens to do what is required of them for the common good.96 Habermas builds upon his earlier concept of constitutional patriotism, deeming constitutionalisation to have a ‘socialising effect’97 in terms of fostering a sense of loyalty or patriotism amongst individuals to a global constitutional order. This socialising effect is a result of the constitutionalisation process representing a form of juristic ‘pathway dependence’, where political power is socially legitimised or reversed through established legal corridors.98 As international laws and regulations gradually expand, and the pathways for state behaviour become more restricted, political power is forced into legal channels, helping to meet the legitimised standards of the global community.99 At the same time, globalisation plays a role in fostering this sense of constitutional patriotism at the global level, dramatically altering the self-image of states—and, most importantly, their citizens—with membership in international organisations and participation in transnational networks resulting in states and individuals increasingly perceiving themselves as members of larger political communities.100 Through engendering a belief that global legal practices (such as the promotion of international peace and protection of individual human rights) have a bearing and positive impact upon human existence, increased constitutionalisation will, according to Habermas, result in states and, in particular, individuals beginning to identify with the principles that underwrite such a constitutional order, in the process establishing a sense of global legal identity.101 Crucially, this sense of identification is generated outside of local jurisdictions,102 illustrating how, under this modified conception of constitutional patriotism, loyalty to a particular constitution is fostered at the global rather than national level. For Habermas, the creation of this global legal identity and, more specifically, articulation of cosmopolitan citizenship will remain almost impossible without constitutional patriotism, as this sense of identification is required in order to create a common ethical-political dimension necessary for the identity formation of a corresponding global community.103 Thus, it is the social and moral dynamics attached to this understanding of constitutional patriotism that provide the driving force behind the fulfilment of Habermas’ cosmopolitan legal order. So, in contrast to Kant, Habermas rejects the idea of an association of free and equal consociates under international law, arguing that limits are required on the exercise of hegemony by powerful states and that

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the institutionalisation of cosmopolitan human rights is only possible through circumventing such collective subjects and directly establishing the legal status of individual citizens. Whilst drawing upon such Kantian ideas as the role of global processes in laying the foundations for a new cosmopolitan order, a commitment to moral norms in order to establish a more institutionalised form of cosmopolitan law and, finally, the articulation of a ‘cosmopolitan condition’, Habermas’ constitutional cosmopolitan approach represents a marked digression from Kant’s theory of international law. As discussed, Habermas supports the incremental expansion of international law and institutional regimes under the aegis of constitutional authorities specialised in securing peace and implementing human rights worldwide. This process would see the traditional functions of the state transferred to supranational institutions, whilst at the same time institutionalising cosmopolitan human rights at the global constitutional level. For Habermas, therefore, the constitutionalisation of international law is coterminous with the establishment of a legally constituted global political community of states and, most importantly, their citizens, providing the groundwork for a globalised and eventually cosmopolitan legal order. Furthermore, in understanding the conditions requisite for the fulfilment of his overarching cosmopolitan objective, one can turn to Habermas’ modified conception of constitutional patriotism. As articulated, constitutional patriotism engenders a sense of loyalty between individuals and the principles underpinning a global constitution and, through its social and moral dynamics, establishes a form of global legal identity and cosmopolitan citizenship at the global constitutional level.

The UN: A Potential Blueprint for the Creation of a Cosmopolitan Legal Order Having examined the legal and moral foundations upon which Habermas’ model of global constitutionalism is based, the chapter will now assess the empirical connotations attached to his constitutional cosmopolitan approach. For Habermas, the European Union (EU), World Trade Organisation (WTO) and, most importantly in the context of this monograph, the United Nations (UN) can be seen as symptomatic of the evolution from proto-constitutional legal tenets to the supranational organisations of a cosmopolitan order.104 Indeed, Habermas equates the UN with a suit of clothes a couple of sizes too big waiting to be

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filled out by a stronger body of organisational law—in other words, by stronger supranational mandates for governance.105 Habermas argues that the UN Charter represents a framework through which we can now understand states and their citizens as constitutional pillars of a politically constituted world society.106 He outlines three defining characteristics or ‘normative innovations’ associated with the UN Charter that constitute prima facie aspects of a global constitution.107 The first and most important of these is the connection the Charter makes between securing peace and the politics of human rights.108 The UN Charter confers on the UN Security Council (UNSC)—and, more specifically, its member states—the primary and ‘collective’ responsibility for maintaining international peace and security.109 Thus, the UNSC can be understood to constitute a collective security system which, by definition, relates to the use of collective measures against a member of a community that has violated certain community-defined values.110 Put another way, states have, under the auspices of the UN Charter, been given the authority to determine the content of the interests of the international community in a particular case and, more importantly, whether violations of these interests constitute a collective security response.111 This is reflected in the provisions contained within Chapter VII of the Charter, which outline the measures that can be taken by member states in response to threats to peace, breaches of peace and acts of aggression.112 Thus, the UN can, in principle, be seen to constitute something analogous to a legally constituted global political community of states which, under the aegis of the UN Charter, are responsible for promoting international peace and security. In addition to its role as the primary organisation responsible for matters of international peace and security, the UN has exhibited an increasingly normative commitment to the protection of global human rights in the post-Cold War period. As articulated in the introduction to this book, a new norm of Security Council-authorised interventions was to develop throughout the 1990s,113 symptomatic of a broader interventionist discourse of human rights protection.114 More precisely, the years following the Cold War were characterised by a ‘modification’ of the existing principles of international law, in particular the principles of non-intervention and prohibition against the use of force, both of which are testament to the actualisation of international law protecting state sovereignty.115 This was to result in the international community and, in particular, the UN adapting such legal rules so as to allow for the effective protection

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and advancement of human rights.116 For example, Chapter VII provisions previously reserved for threats to—and breaches of—international peace and security and acts of aggression were employed by the UNSC in response to egregious internal human rights violations in Somalia, Rwanda117 and Bosnia-Herzegovina, whilst a morally legitimate US-led NATO military operation was undertaken in Kosovo. Furthermore, this ‘re-conceptualisation’ of domestic security concerns has been evidenced more recently by Operation Unified Protector undertaken in Libya in 2011, contextualised within a new politics of protection and, for some, constituting an unprecedented collective determination to halt a mass atrocity.118 Thus, the rights of individuals have, both in theory and in practice, come to be incrementally recognised and institutionalised at the global constitutional level, with the UN reflecting the foundations of a budding global constitutional order resembling something comparable not only to a legally constituted community of states, but also their citizens. In this way, the UN now provides the ‘building blocks’ for the creation of a global legal identity and form of cosmopolitan citizenship coterminous with Habermas’ vision of constitutional patriotism, in the process offering a prospective—albeit incomplete—blueprint for the establishment of a cosmopolitan legal order. The second defining characteristic of the UN Charter is reflected in the relationship between the prohibition on the use of violence and the realistic threat of prosecution and sanctions. Under Article 41 of the UN Charter, and in response to threats to peace, breaches of peace and acts of aggression, the UNSC can decide which coercive measures— excluding the use of force—to employ to give effect to its decisions. These include the complete or partial termination of economic relations and means of communication as well as the severance of diplomatic relations.119 Furthermore, under Article 42, should the measures contained within Article 41 be deemed or prove to be inadequate, the UNSC is authorised to take additional action—including the use of force—in order to maintain or restore international peace and security.120 Thus, the UN Charter makes available a wide ambit of social, economic, political and military provisions which, given the primary and collective responsibility conferred on its member states, are expected to be implemented in matters of international peace and security. Relatedly, the connection the UN Charter makes between the prohibition on the use of violence and realistic threat of prosecution and sanctions has similarly permeated into the sphere of human rights. This

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is again exemplified by Operation Unified Protector undertaken in Libya in 2011. For example, the conflict in Libya was framed as a problem of human protection almost from the outset, with the UN Secretariat—in this case, the Special Advisers, High Commissioner for Human Rights and Secretary General—playing a central role.121 Travel bans and asset freezes were imposed on a number of high-profile Libyan individuals and organisations122 and the situation referred to the International Criminal Court (ICC).123 When these measures proved unsuccessful, an UN-sanctioned, NATO-led operation was carried out under the aegis of Resolution 1973, which authorised member states to take all necessary measures to protect civilians and civilian populated areas, including through the imposition of a no-fly zone and enforcement of an arms embargo.124 Thus, military intervention in Libya has demonstrated how the provisions of the UN Charter and, more specifically, the expectations imparted on member states in respect to matters of international peace and security have, further to the UN’s collective security system, similarly permeated into the discourse of global human rights. Consequently, Operation Unified Protector has served to reinforce the contention that such rights have, in practice, come to be incrementally recognised and institutionalised at the global constitutional level. The connection the UN makes between the prohibition on the use of violence and realistic threat of prosecution and sanctions has, therefore, given further weight to the claim that the UN reflects the foundations of a budding global constitutional order resembling something comparable to a legally constituted community of states and their citizens, once more offering a prospective blueprint for the establishment of Habermas’ cosmopolitan legal order. The final normative innovation associated with the UN Charter is reflected in the inclusive and universal character of the UN per se. For Habermas, if conflicts are to be resolved peacefully, then all states without exception must be treated as concerned members of the international community.125 The configuration of the General Assembly (GA), which has 193 members and incorporates authoritarian, despotic and criminal regimes, provides evidence in support of this claim, satisfying a necessary precondition for the international community’s commitment to transforming international conflicts into domestic conflicts.126 Further to determining the content of the interests of the international community in individual cases, the UN can thus be understood to guarantee protection to all of its members in matters relating to international peace and security.

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Whilst primarily directed at its member states, this guarantee of protection has also increasingly permeated down to individual citizens and, in particular, vulnerable populations within endemically weak and abusive states. As emphasised previously, this is evident in the UN’s growing normative commitment to the protection of global human rights and, more precisely, its re-conceptualisation of domestic security concerns. Thus, the levels of protection afforded to states and, in particular, individuals in all matters relating to international peace and security—including human rights—has further reinforced the contention that such rights have, in practice, come to be incrementally recognised and institutionalised at the global constitutional level. In this way, the inclusive and universal character of the UN has once more given substance to the claim that the organisation reflects the foundations of a nascent global constitutional order resembling something analogous to a legally constituted political community of states and citizens, providing the building blocks for the creation of a global legal identity and form of cosmopolitan citizenship commensurate with Habermas’ vision of constitutional patriotism and, in the process, offering a prospective blueprint for the establishment of a cosmopolitan legal order. In summary, the normative innovations and characteristics associated with the UN Charter have come to constitute prima facie aspects of a global constitution. As discussed, the Charter imparts a collective duty on the international community to promote and maintain international peace and security, generates provisions and engenders expectations in relation to this responsibility and, finally, affords protection to all of the UN’s member states. At the same time, these constitutional tenets have been increasingly extended to the sphere of global human rights in the post-Cold War period, reflected in the international community’s re-conceptualisation of domestic security concerns and evidenced most recently by the NATO-led military intervention in Libya in 2011. Thus, the rights of individuals have, both in theory and in practice, come to be incrementally recognised and institutionalised at the global constitutional level, giving credence to the claim that the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and, most importantly, their citizens. In this way, the innovations and characteristics contained within the UN Charter have embellished the UN with the constituent elements necessary for the creation of a global legal identity and form of cosmopolitan citizenship at the global constitutional level, in

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the process offering a potential ‘stepping stone’ to the establishment of Habermas’ cosmopolitan legal order. However, and whilst offering a prospective blueprint for the fulfilment of Habermas’ overarching cosmopolitan objective, it is important to acknowledge that the UN has yet to move comprehensively in a cosmopolitan direction. This is reflected in the gap that still exists between political rhetoric and political reality at the global constitutional level and, more precisely, between the UN’s normative commitment to the protection of global human rights and the weakness of its enforcement mechanisms. Indeed, Habermas himself acknowledges that further reform of the UN is required if the organisation is to develop into a supranational entity capable of securing peace and promoting human rights in an effective and non-selective fashion.127 For example, he emphasises the continued reliance on provisions of legitimacy from within state-centred systems.128 Whilst the legally binding commitments contained within the Genocide Convention outline states’ responsibilities towards the prevention of genocide, war crimes and crimes against humanity129—with the ICC subsequently responsible for the prosecution of such crimes—under the aegis of the UN Charter there is no legal obligation conferred on the wider international community to respond to gross violations of human rights. At the same time, the failure of the UN to systematically protect these rights in practice in Somalia, Rwanda and Bosnia-Herzegovina in the immediate post-Cold War period, the absence of a UN mandate in Kosovo and the skewed humanitarian credentials of the USA and UK in Iraq in 2003 highlight the debate that surrounds any claim that a modification of customary international law has taken place.130 In short, any decision to intervene for human protection purposes remains contingent upon the will and compliance of powerful states, with the prevailing inclinations, agendas and interests germane to such states continuing to influence the decision whether or not to intervene in order to protect vulnerable populations. As articulated in Chapter 2, a broad confluence of factors including—but not limited to— the continued pre-occupation of the UNSC’s permanent members with preserving the national integrity of sovereign states, pursuing broader economic and political objectives and preventing the loss of troops in conflict situations all—either in tandem or in isolation—accounted primarily for the international community’s failure to protect vulnerable populations in the immediate post-Cold War period. This trend has continued into the twenty-first century, encapsulated by the UN’s anaemic

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response to the conflicts in Darfur, Democratic of Congo and Zimbabwe which, in turn, further characterise how the logic of independent state interests continues to trump the logic of humanity.131 So, despite the responsibility of the UN’s permanent member states to promote international peace and security being gradually reconceptualised so as to incorporate the protection and advancement of global human rights, the prevailing interests of powerful states (and, at the same time, their monopolisation of the decision-making process in relation to the protection of vulnerable populations) underlines how such rights have yet to be sufficiently recognised and institutionalised at the global constitutional level. In addition, the absence of a legally binding and collective obligation to act in the event of egregious human rights violations and a customary international law concerned with the global protection of such rights have served to elucidate how the UN remains a weak and emerging global constitutional order resembling something only comparable to a legally constituted political community of states most importantly, their citizens. In this way, therefore, the UN remains an as yet incomplete blueprint for the establishment of Habermas’ cosmopolitan legal order. Further to the continued dependency on provisions of legitimacy from within state-centred systems, there also exists the potential for states to abuse the innovations and characteristics contained within the UN Charter (particularly given that such constitutional tenets have been increasingly extended to the sphere of global human rights in the postCold War period) in order to advance their own economic and political objectives. In particular, there exists the possibility that humanitarian intervention could be used as a smokescreen for the pursuit of imperialist and, more specifically, self-interested inclinations relevant to powerful states. This is evidenced by the Delta Force Operation undertaken in Somalia in the 1990s and, more recently, by the US- and UK-led invasion of Iraq in 2003. Whilst reinforcing the weaknesses of the UN’s enforcement mechanisms, the potential for states to intervene under the guise of humanitarian pretexts has, at the same time, qualified the fulfilment of Habermas’ overarching cosmopolitan objective and, more specifically, his teleological approach to the constitutionalisation of international law. As explained, Habermas’ model of global constitutionalism is concerned with creating legislative and adjudicative bodies—more precisely, constitutional authorities—that confer upon states a collective and legally binding obligation to respect and apply international laws and regulations.

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This process would see the traditional functions of the state transferred to supranational institutions, whilst at the same time institutionalising cosmopolitan human rights at the global constitutional level. In this way, the constitutionalisation of international law corresponds with the establishment of a legally constituted global political community of states and, most importantly, their citizens, providing the groundwork for a globalised and eventually cosmopolitan legal order. Consequently, Habermas’ approach can be understood to follow a linear trajectory in the pursuit of an overarching constitutional narrative and cosmopolitan endgame. However, and underscored by events in Somalia and Iraq, it is not unreasonable to view the current process of constitutionalisation as simply entrenching Western political and economic power.132 More precisely, constitutionalisation could be seen to represent nothing more than a form of neo-imperialism and, more specifically, the legal and institutional dominance of the world’s most powerful states.133 Whilst this claim will be returned to and deliberated further in one’s discussion of R2P, it is evident that the manifestation and potential proliferation of negative imperialist trends and, more specifically, self-motivated inclinations relevant to powerful states runs antithetical to Habermas’ teleological and linear assessment of the constitutionalisation process, undermining the potential fulfilment of his overarching cosmopolitan objective. In this way, the ‘misuse’ of the language of human rights and humanitarian intervention has served to compound the claim that the UN remains an as yet incomplete blueprint for the creation of Habermas’ cosmopolitan legal order. Alongside the absence of both a legally binding and collective obligation on the international community to act in the event of systematic human rights violations and a customary international law concerned with the global protection of such rights, the gap between political rhetoric and political reality manifest at the global constitutional level has also been evidenced by the continued monopolisation of states over the use of military force. Whilst the UN Charter confers on the UNSC the primary and collective responsibility to promote international peace and security, the implementation of Chapter VII provisions is in practice delegated to ‘entities’—states—as the UNSC possesses no enforcement capacity of its own.134 Put simply, the UN lacks a force upon which it can call to directly conduct military enforcement action.135 Alongside matters of international peace and security, this continued dependency on the military capabilities of states has also permeated into the sphere of global human

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rights. This is reflected in the failure of the UN to systematically protect human rights in practice in Somalia, Rwanda and Kosovo in the post-Cold War period which, as outlined in Chapter 2, was attributable in part to concerns amongst UN member states over military casualties. Furthermore, the almost136 complete absence of ground troops in Libya could be seen as testament to the continuing phenomenon of virtual war,137 a legacy of the NATO-led operation in Kosovo and, more generally, a glowing indictment of the continued antipathy of UN member states to the loss of troops in conflict situations. It should also be emphasised that control over the enforcement process extends beyond powerful states, with the involvement of Turkey and Jordan in Operation Unified Protector in Libya, the African-led International Support Mission in Mali (AFISMA) sanctioned under SCR 2085138 and, furthermore, the 4000-strong African regional protection force authorised by the UN in South Sudan in August 2016139 all encapsulating the role that troops from weak and developing countries have played in the execution of human protection mandates. Reinforcing the dependency on provisions of legitimacy from within state-centred systems, the continued monopolisation of force by states and, in particular, their efforts to eschew military casualties has once again demonstrated how human rights have yet to be sufficiently recognised and institutionalised at the global constitutional level. At the same time, it has further served to illustrate how the UN remains a weak and emerging global constitutional order resembling something only comparable to a legally constituted political community of states and their citizens and, therefore, an incomplete blueprint for the establishment of a cosmopolitan legal order. A final weakness associated with the UN’s enforcement mechanisms lies in the continued retention of veto power by the UNSC’s permanent member states. Although perceived as an important institutional check and, more specifically, primary restraint against excessive interventionism by the Security Council,140 veto power also provides a means through which the P5—China, France, Russia, the UK and USA—can preclude intervention, including the use of force, despite transgressions under the umbrella of both international and international humanitarian law. For example, this was the case in Kosovo, where Russia and China extolled the virtues of national sovereignty and territorial integrity (alongside the absence of a ‘right’ of humanitarian intervention within existing customary and statutory international law)141 in threatening to veto any proposed resolution on the use of force.142 Furthermore, the same members

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of the UNSC have vetoed draft resolutions aimed at ending the political violence in Syria. Most recently, Russia and China rejected a proposal to impose sanctions on the Assad regime following its alleged use of chemical weapons, whilst Russia also opposed a resolution condemning the chemical attack on the town of Khan Sheikhoun and requiring Damascus to co-operate with investigators.143 Russia has long-standing economic and political ties to the Syrian government, whilst China has an established policy of non-intervention in the affairs of sovereign states.144 Further to the continued dependency on both provisions of legitimacy from within state-centred systems and the military capabilities of states, therefore, the retention of veto power by the UNSC’s permanent members has further characterised how the prevailing inclinations, agendas and interests apposite to such states continue to undermine the cogent recognition and institutionalisation of individual human rights at the global constitutional level. It should also be emphasised that the retention of veto power has, further to the manifestation and potential proliferation of negative imperialist trends and self-motivated inclinations relevant to powerful states, qualified the fulfilment of Habermas’ overarching cosmopolitan objective. This is in view of being symptomatic of the ‘locking in’145 of asymmetrical legal relationships at the global constitutional level. More precisely, the power of veto is coterminous with the unequal distribution of power within the UN, with the process of constitutionalisation locking-in legal relationships that favour some states more than others146 and, most importantly, the responses to such global problems as climate change, world poverty, global economic crisis and the gross violation of human rights.147 In short, states with the greatest economic and political power are able to ‘legitimately’ demand compliance, even when this runs contrary to the principles of international justice.148 Alongside re-affirming the gap between the UN’s normative commitment to the protection of global human rights and the weakness of its enforcement mechanisms, the power of veto has therefore characterised the non-cosmopolitan legal tenets that run antithetical to Habermas’ teleological approach to the constitutionalisation of international law, further undermining the pursuit of his overarching constitutional narrative and cosmopolitan endgame. In this way, the retention of veto power by the UNSC’s permanent member states has both perpetuated and consolidated the claim that the UN remains an as yet incomplete blueprint for the establishment of a cosmopolitan legal order.

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Conclusion This chapter has critically assessed the moral and legal dynamics and empirical connotations attached to Habermas’ normative model of global constitutionalism. As explained, Habermas is concerned with the incremental expansion of international law and institutional regimes under the aegis of constitutional authorities specialised in securing peace and implementing human rights worldwide. This would see the traditional functions of the state transferred to supranational institutions, whilst at the same time institutionalising cosmopolitan human rights. In this way, the constitutionalisation of international law corresponds with the establishment of a legally constituted global political community of states and, most importantly, their citizens, providing the groundwork for a globalised and eventually cosmopolitan legal order. Through the gradual recognition and institutionalisation of human rights at the global constitutional level and, in addition, through providing the ‘building blocks’ for the creation of a global legal identity and form of cosmopolitan citizenship commensurate with Habermas’ vision of constitutional patriotism, the UN offers a prospective blueprint for the establishment of Habermas’ cosmopolitan legal order. More precisely, the UN confers a collective duty on the international community—and, in particular, the UNSC’s permanent members—to promote and maintain international peace and security, generates specific provisions and expectations in relation to this responsibility and, finally, affords protection to all of its member states, innovations that have been increasingly extended to the sphere of global human rights in the postCold War period. However, the absence of both a legally binding and collective obligation conferred on the international community to act in the event of egregious human rights violations and a customary international law concerned with the global protection of such rights, the continued dependency on the military capabilities of states and the retention of veto power by the UNSC’s permanent members have all exemplified how the UN remains a weak and emerging global constitutional order resembling something only comparable to a legally constituted political community of states and their citizens. In addition, the asymmetrical legal relationships and negative imperialist trends manifest at the global constitutional level have similarly qualified the fulfilment of Habermas’ overarching cosmopolitan objective, compounding the claim that the UN remains an

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as yet incomplete blueprint for the establishment of Habermas’ cosmopolitan legal order. Importantly, Habermas’ model of global constitutionalism provides a constitutional framework from which to gauge the cosmopolitan legal progress that has occurred under the aegis of R2P. In Chapter 6, the monograph will argue that the doctrine has begun to bridge the lacuna between the UN’s post-Cold War normative commitment to human rights and the weakness of its enforcement mechanisms, tentatively ­advancing Habermas’ constitutional cosmopolitan approach. In Chapter 7, ­meanwhile, it will argue that the doctrine has, both in theory and in practice, begun to address concerns over the potential ‘misuse’ of the language of human rights and humanitarian intervention by powerful states and, in the process, weakened the presence of negative imperialist trends at the global constitutional level. At the same time, R2P has countered opposition to Habermas’ teleological approach to the constitutionalisation of international law, strengthening the prospective fulfilment of his overarching cosmopolitan objective.

Notes

1. Antje Weiner et al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), p. 7. 2. For a definition of global constitutionalism, again see Antje Weiner et al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), p. 8. 3. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 133. 4. See in particular Heather Roff, Global Justice, Kant and the Responsibility to Protect (Abingdon, Routledge, 2013), Chapters 1 and 2. 5. William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 15. 6.  See Garrett Brown, ‘The European Union and Kant’s Idea of Cosmopolitan Right: Why the EU is Not a Cosmopolitan Federation’. European Journal of International Relations (online, 2010), p. 11. 7.  Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), pp. 437–38. 8. Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 31.

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9. Ibid., p. 32. 10. Ibid. 11.  Garrett Brown, ‘Kant’s Cosmopolitanism’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), p. 51. 12. Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 20. 13. William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 9. 14.  Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 34. 15. Ibid., p. 33. 16.  Garrett Brown, ‘Kant’s Cosmopolitanism’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), p. 53. 17.  See Charles Covell, Kant and the Law of Peace: A Study in the Philosophy of International Law and International Relations (New York, Palgrave, 1998), p. 49. 18.  Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 33. 19.  Garrett Brown, ‘The European Union and Kant’s Idea of Cosmopolitan Right: Why the EU Is Not a Cosmopolitan Federation’. European Journal of International Relations (online, 2010), p. 12. 20.  Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 112. 21.  Garrett Brown, ‘Kant’s Cosmopolitanism’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), p. 55. 22.  Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 112. 23. Seyla Benhabib, ‘Hospitality, Sovereignty and Democratic Iterations’, in Another Cosmopolitanism, ed. Robert Post (Oxford, Oxford University Press, 2006), p. 149. 24. Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 113; William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on



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Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 7. 25. George Cavallar, ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), p. 476. 26. See Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), pp. 435–36. 27. Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 115. 28.  Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), p. 436. 29.  See George Cavallar, ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), p. 463. 30. Ibid., p. 469. 31. Ibid. 32. This is as opposed to a ‘world republic’ or universal state predicated on a system of coercive law (see George Cavallar, ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), pp. 462–66). Whilst the subject of much debate, Kant can be understood to reject the idea of a world republic, articulating that such a political arrangement would be more prone to conflict and impractical in view of widespread differences in language and religion. For further discussion, see also Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 125; Thomas Mertens, ‘Cosmopolitanism and Citizenship: Kant Against Habermas’. European Journal of Philosophy, 4 (1996), p. 330; Garrett Brown, Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution (Edinburgh, Edinburgh University Press, 2009), p. 68; and Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), pp. 435–36. 33.  See George Cavallar, ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), p. 461. 34.  See in particular George Cavallar, ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), p. 471; George Cavallar, ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’. Review of International Studies, 27 (2001), p. 242; Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis,

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Hackett Publication Company, 1983), p. 109; Burleigh Wilkins, ‘Kant on International Relations’. The Journal of Ethics, 11 (2004), p. 152; and James Wilson and Jonathan Monten, ‘Does Kant Justify Liberal Intervention?’ The Review of Politics, 73 (2011), p. 637. 35.  Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), p. 436. 36.  Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. Ted Humphrey (Indianapolis, Hackett Publication Company, 1983), p. 118. 37. Ibid., p. 118. 38. Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), p. 437. 39. Ibid., p. 436. 40. See Chapter 2. 41. Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), p. 437. 42. Ibid., pp. 437–38. 43.  William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 9. 44.  Garrett Brown, ‘Kant’s Cosmopolitanism’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), p. 55. 45.  Motohide Saji, ‘On an East European Community, or Kant’s Cosmopolitan Right Reconsidered’, in Globalization and Regional Integration in Europe and Asia, ed. Dr Nam-Kook Kim (Farnham, Ashgate, 2009), p. 125. 46. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 40. 47. Ibid. 48.  See William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 15. 49. Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 312. 50.  See in particular Jan Klabbers, An Introduction to International Institutional Law (Cambridge, Cambridge University Press, 2009), p. 17. 51. Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 312.

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52. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 132. 53.  See Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), pp. 72–73. 54. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 132. 55. William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 15. 56. Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 332. 57.  Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 8. 58.  See Andrew Hurrell, On Global Order: Power, Values, and the Constitution of International Society (Oxford, Oxford University Press, 2007). 59.  See Joseph Weiler, ‘The Geology of International Law: Governance, Democracy, and Legitimacy’. Heidelberg Journal of International Law, 64 (2004), pp. 547–62. 60.  See Jose Alvarez, ‘International Organisations: Then and Now’. American Journal of International Law, 100 (2006). 61. With its roots in the 1970s and 1980s, globalisation is most closely associated with the heightened influence of transnational corpora­ tions, NGOs and, in particular, quasi-autonomous global economic institutions such as the IMF and World Bank, and was to intensify further in the post-Cold War era (See Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 4; Mark Duffield, Global Governance and the New Wars: The Merging of Development and Security (London, Zed Books, 2001), pp. 48–49, 167; and William Reno, ‘War, Markets and the Reconfiguration of West Africa’s Weak States’. Comparative Politics, 29 (1997), p. 496). The phenomenon was to contribute to the weakening of the bureaucratic architecture of the state and the concomitant appearance of protracted intra-state conflict in Somalia, Rwanda and Bosnia-Herzegovina in the post-Cold War period. In Somalia, for example, the presence of the IMF and World Bank resulted in widespread economic reforms including devaluation, reduction of the public sector and removal of price controls which, in turn, accelerated the collapse of the Somali economy and the polarisation of conflict along clan lines. In Rwanda, meanwhile, the decision to sign a $90 million structural adjustment programme with the World Bank—expedited by the collapse of the International Coffee Agreement in 1987—prompted severe cuts in development spending, resulting in widespread inflation

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and poverty, challenging the power and prestige of the then incumbent Hutu regime and accelerating the country’s descent into large-scale ethnic violence. In Bosnia-Herzegovina, finally, the collapse of the Socialist Federal Republic of Yugoslavia in 1989—a precursor to the ethnic cleansing of approximately 200,000 Bosnian Muslims and Croats at the hands of Serbian nationalist and irregular paramilitary forces—was inexorably linked to an IMF Recovery Plan initiated in 1982 in response to a crippling debt crisis. This Recovery Plan served only to intensify the growing criminalisation of the federation’s economy and undermine the incumbent regime’s control over the printing of money, contributing to inflation and widespread unemployment. See in particular Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 196; Guy Vassall-Adams, Rwanda: An Agenda for International Action (Oxford, Oxfam Publications, 1994), p. 12; Peter Uvin, Aiding Violence: The Development Enterprise in Rwanda (West Hartford, CT, Kumarian Press, 1998), p. 58; and Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 39. 62. Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2004), p. 4. 63.  See Mattias Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework for Analysis’. European Journal of International Law, 15 (2004). 64. See Gunther Teubner, ‘Societal Constitutionalism: Alternatives to State Centred Constitutional Theory’, in Transnational Governance and Constitutionalism, eds. Christian Joerges et al. (Cambridge, Polity Press, 2002). 65. See James Rosenau, ‘Governance in a New Global Order’, in Governing Globalisation, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2006). 66. By definition, this process concerns identifying and explaining the processes of constitutionalism at the global level. See Antje Weiner et al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), p. 8. 67. Ibid., p. 7. 68. Ibid. 69.  See Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 5. 70. Ibid., in particular p. 6. 71.  Antje Weiner et  al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), pp. 7–8.

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72.  See Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 7. 73.  Antje Weiner et  al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), p. 8. 74. Ibid. 75. Ibid., p. 7. 76.  See Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), pp. 70–71. 77.  See Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 6. 78. Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 332. 79. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 132. 80. Ibid., p. 133. 81. William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), pp. 15–16. 82. Ibid., p. 16. 83. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 175. 84.  Jürgen Habermas, ‘Toward a Cosmopolitan Europe’. Journal of Democracy, 14 (2003), p. 89. 85.  Ibid., pp. 87–88. For a summary, see also Jürgen Habermas, ‘The Postnational Constellation and the Future of Democracy’, in The Postnational Constellation: Political Essays, ed. Max Pensky (Cambridge, MIT Press, 1998), in particular pp. 76–77. 86. For Habermas, the economic, cultural and ecological consequences of globalisation would be addressed by transnational negotiation systems. See Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 332. 87. William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 16. 88.  Antje Weiner et  al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), p. 6. 89. Ibid. See also Jürgen Habermas, ‘The Postnational Constellation and the Future of Democracy’, in The Postnational Constellation: Political Essays, ed. Max Pensky (Massachusetts, MIT Press, 1998), p. 88. 90. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 135.

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91.  Jürgen Habermas, ‘Toward a Cosmopolitan Europe’. Journal of Democracy, 14 (2003), pp. 96–97. 92. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), pp. 174–76. 93. Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), pp. 42–43. 94. Ibid., p. 41. 95. Ibid., p. 42. 96. Ibid., p. 41. 97.  Garrett Brown, ‘The Constitutionalisation of What?’. Global Constitutionalism, 1 (2012), p. 18. 98. Ibid., pp. 17–18. 99. Ibid., p. 18. 100. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 177. 101.  Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 18. 102. Garrett Brown, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), p. 450. 103. Jürgen Habermas, ‘The Postnational Constellation and the Future of Democracy’, in The Postnational Constellation: Political Essays, ed. Max Pensky (Massachusetts, MIT Press, 1998), pp. 108–9. 104. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 133. 105. Ibid., p. 134. 106. Ibid., p. 161. Again, and whilst not the focus of this monograph, it is worth noting that no reference is made to the protection afforded to stateless people. 107. Ibid., p. 160. 108. Ibid. 109. Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford, Oxford University Press, 1999), p. 2. 110. Ibid., p. 5. 111. Ibid., p. 6. 112.  The United Nations Charter, ‘Chapter VII: Action with Respect to Threats to Peace, Breaches of the Peace, and Acts of Aggression’ (UN, 2015). http://www.un.org/en/documents/charter/chapter7.shtml (accessed 14 February 2015), (paras. 3–4). 113.  See Nicholas Wheeler, ‘The Humanitarian Responsibilities of Sovereignty: Explaining the Development of a New Norm of Military

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Intervention for Humanitarian Purposes in International Society’, in Humanitarian Intervention and International Relations, ed. Jennifer Welsh (Oxford, Oxford University Press, 2006), pp. 32–33. 114.  David Chandler, ‘Resilience and Human Security: The Postinterventionist Paradigm’. Security Dialogue, 43 (2012), p. 218. 115. Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 53. 116. Ibid., p. 60. 117.  It should be emphasised that ‘Operation Turquoise’—sanctioned in accordance with Chapter VII of the UN Charter—was not deployed until after the worst of the atrocities had been committed in Rwanda. See in particular The United Nations, ‘UNSC Resolution 929: Adopted by the Security Council on 22nd June 1994’ (UNSC, 1994). http:// www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/929(1994) (accessed 26 November 2014), (paras. 11–13); Romeo Dallaire, ‘The End of Innocence’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. Jonathan Moore (Oxford, Rowman & Littlefield, 1998), pp. 80–81; and Arthur Klinghoffer, The International Dimension of Genocide in Rwanda (Basingstoke, Macmillan, 1998), p. 138. 118. In relation to the latter, see, for example, Jon Western and Joshua S. Goldstein, ‘Humanitarian Intervention Comes of Age’ (Foreign Affairs, 2011). https://www.foreignaffairs.com/articles/2011-11-01/humanitarian-intervention-comes-age (accessed 20 January 2016); Ivo H. Daalder and James G. Stavridis, ‘NATO’s Victory in Libya’ (Foreign Affairs, 2012). https://www.foreignaffairs.com/articles/libya/201202-02/natos-victory-libya (also accessed 20 January 2016). 119.  The United Nations Charter, ‘Chapter VII: Action with Respect to Threats to Peace, Breaches of the Peace, and Acts of Aggression’ (UN, 2015). http://www.un.org/en/documents/charter/chapter7.shtml (accessed 14 February 2015), (para. 3). 120. Ibid., (para. 4). 121. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 845. 122. The United Nations, ‘Security Council Approves ‘No-Fly’ Zone Over Libya’ (UN, 2011). http://www.un.org/News/Press/docs/2011/ sc10200.doc.htm (accessed 6 February 2012), (para. 7). 123.  Jason Ralph and Adrian Gallagher, ‘Legitimacy Faultlines in International Society: The Responsibility to Protect and Prosecute After Libya’. Review of International Studies, 41 (2015), p. 562. 124. The United Nations, ‘UNSC Resolution 1973: Adopted by the Security Council on 17th March 2011’ (UNSC, 2011). http://www.un.org/ en/ga/search/view_doc.asp?symbol=S/RES/1973(2011) (accessed 16 March 2013), (paras. 4–18).

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125. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 165. 126. Ibid. 127. Ibid., p. 136. 128. Ibid., p. 141. 129. Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 29. 130. Customary international law is established by states engaging in a repetitive and ongoing practice so far as to be regarded a compulsory rule (see James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 50; Spencer Zifcak, ‘The Responsibility to Protect’, in International Law, ed. Malcolm Evans (Oxford, Oxford University Press, 2010), p. 524). The debate surrounding the ‘modification’ of this form of law is considered in Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), pp. 61–62. 131. Michael Barnett and Thomas Weiss, Humanitarianism Contested: Where Angels Fear to Tread (Abingdon, Routledge, 2011), p. 93. 132. See amongst others Grahame Thomson, ‘The Limits of Globalisation’, in Debating Globalisation, ed. David Held (Cambridge: Polity Press, 2005); Robert Cox, Production, Power and Global Order: Social Forces in the Making of History (New York, Columbia University Press, 1987); and Stephen Gill, ‘Constitutionalising Inequality and the Clash of Globalisations’. International Studies Review, 4 (2002). 133.  Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 13. 134. Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford, Oxford University Press, 1999), p. 4. 135. Ibid. 136. As Nadir Dalal has highlighted, Special Forces troops were present in Libya. See ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship. shuedu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 27). 137. Originating in the 1970s, virtual war is concerned with making conflict as bloodless, risk-free and precise as possible. The phenomenon was present in Kosovo, where NATO’s response to large-scale ethnic violence took the form of air strikes against designated Serbian targets. For further discussion, see Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001), pp. 164–76.

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138. The United Nations, ‘UNSC Resolution 2085: Adopted by the Security Council on 20th December 2012’ (UNSC, 2012). http://www. un.org/en/ga/search/view_doc.asp?symbol=S/RES/2085(2012) (accessed 20 September 2016). 139. See BBC News, ‘UN Okays Juba Troop Deployment as South Sudan Objects’ (BBC, 2016). http://www.bbc.co.uk/news/world-africa37065836 (accessed 20 September 2016). 140. Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford, Oxford University Press, 1999), p. 39. 141. Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001), p. 163. 142.  James Gow, ‘International Engagement and the Yugoslav War of Dissolution’, in International Intervention in Local Conflicts: Crisis Management and Conflict Resolution Since the Cold War, ed. Uzi Rabi (New York, I.B. Tauris, 2010), p. 72. 143.  See in particular BBC News, ‘Syria War: Russia and China Veto Sanctions’ (BBC, 2017). http://www.bbc.co.uk/news/world-middleeast-39116854; ‘Boris Johnson “Dismayed” by Russia’s UN Syria Veto’ (BBC, 2017). http://www.bbc.co.uk/news/uk-politics-39584973; and ‘Syria War: Anger After Russia Vetoes Resolution at UN’ (BBC, 2017). http://www.bbc.co.uk/news/world-europe-39585071 (all accessed 21 May 2017). 144. Again, see BBC News, ‘Syria War: Russia and China Veto Sanctions’ (BBC, 2017). http://www.bbc.co.uk/news/world-middle-east-3911 6854 (accessed 21 May 2017). 145.  See Garrett Brown, ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), p. 10. 146. Ibid., p. 20. 147. Ibid. 148. Ibid.

CHAPTER 4

The Responsibility to Protect and Cosmopolitan Human Protection

Given that the book is concerned with the prospective constitutionalisation of cosmopolitan ethical norms, this chapter will critically appraise the relationship between R2P and the global ethics underpinning a cosmopolitan approach to human protection. The chapter will acknowledge that the doctrine has yet to fulfil the normative demands of the cosmopolitan typology, underlining the diminutive nature of the relationship manifest between R2P and cosmopolitan moral principles. However, it will contend that R2P can be equated with the maxims of collective responsibility, conditional sovereignty and the provision of delineated and limited thresholds for intervention that lie at the heart of a cosmopolitan approach to human protection. Furthermore, R2P confers upon states a responsibility to protect the individual rights and freedoms of their populations and places a concomitant—albeit subsidiary—duty on the wider international community to protect such rights and freedoms should the state manifestly fail to do so; reflects a theoretical consensus amongst UN member states pertaining to the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity; and, finally, emphasises the continued importance of states to the protection of individuals. In this way, and as will be articulated, R2P also engages and interacts with the broader ethical principles of human emancipation, atrocity prevention and human security coterminous with this cosmopolitan typology. Consequently, the ideas of collective responsibility, conditional sovereignty and the provision of © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_4

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delineated and limited thresholds for intervention, alongside the extant principles of human emancipation, atrocity prevention and human security, have all come to constitute prima facie aspects of R2P, testament to the cosmopolitan ethical norms intimately bound up with the doctrine and, in turn, the moral relationship prevalent between R2P and cosmopolitan human protection.

The ICISS Report Before examining more closely the relationship between R2P and cosmopolitan human protection, it is important to trace the roots of the doctrine in the form of the 2001 International Commission on Intervention and State Sovereignty (ICISS) report titled The Responsibility to Protect. As will become clear in this chapter, the ICISS report was to prove instrumental in shaping the content of Paragraphs 138 and 139 of the World Summit Outcome document and the connotations attached to R2P. With regard to the idea of a ‘responsibility to protect’, this can be traced as far back as 1993 and the notion of sovereignty as responsibility as articulated by former Sudanese diplomat Francis Deng. This maxim was a product of both his participation in a Brookings Institution initiative in the late 1980s on conflict management in Africa and his later experience as the Secretary-General’s Special Representative on Internally Displaced Persons, albeit from 1994 to 2004.1 Deng was to challenge the principle of non-intervention, postulating that the sovereign right of non-interference was contingent upon the performance of sovereign responsibilities for the protection of populations.2 A product of the illegal NATO intervention in Kosovo (where, according to Kofi Annan, the imperative of halting gross and systematic human rights had clashed with dangerous precedents for future interventions),3 alongside the failure of the UN to protect vulnerable populations in Somalia, Rwanda and Bosnia-Herzegovina in the post-Cold War period, the 2001 ICISS report was to build upon the idea of sovereignty as responsibility. As Russell Buchan explains, ICISS moved away from a ‘pristine’ conception of state sovereignty that conferred on states an unrestricted right to deal with individuals as they saw fit, towards an approach that regarded states as being under a responsibility to protect their populations.4 An attempt to overcome antipathy towards the language of humanitarian intervention prompted by NATO’s military action in Kosovo5 and, in addition, the continued gap between political

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rhetoric and political reality manifest at the global constitutional level; the ICISS report prioritised the rights and interests of individual victims above the perspectives and preferences of intervening powers.6 According to the report, a state has the primary responsibility to protect individual human rights.7 Should it be ‘unable or unwilling’ to fulfil this responsibility, its sovereignty is temporarily abrogated and the ‘responsibility to protect’ transferred to the wider international community.8 Thus, sovereignty is no longer interpreted in the traditional Westphalian sense as the ‘supreme authority within a territory’, but as a concept based on human security and implying wider responsibilities.9 In short, the ICISS report imparted a collective responsibility on the international community—and, in particular, the permanent members of the UNSC—to protect individuals in the event of large-scale human rights violations that sovereign states were unable or unwilling to prevent, providing criteria and thresholds for intervention which, if met, legitimated the use of military action for human protection purposes.10 At the same time, ICISS attempted to reconcile the principles of state sovereignty and human rights, with the former rooted in the maxims of non-­intervention and the prohibition against the use of force contained within the UN Charter and the latter, meanwhile, dependent on the ‘modification’ of such extant principles in order to allow for the effective protection of individual human rights. Furthermore, and whilst humanitarian intervention remained a key component under the ‘responsibility to react’, the ICISS report placed particular emphasis on both the responsibility to prevent and the responsibility to rebuild. In the case of the former, this was encapsulated by a provision of developmental assistance from within the international community to help prevent protracted intra-state conflict from occurring, intensifying, spreading or persisting.11 It also extended to early warning and analysis, root cause prevention and direct prevention efforts.12 In the case of the latter, meanwhile, it was reflected in the post-intervention obligations of the international community to provide full assistance with recovery, security, reconstruction and reconciliation, whilst also stressing the need to achieve local ownership of the responsibility to protect within failed states.13 Whilst the ideas of prevention and reconstruction individually are nothing new,14 it is important to emphasise that the ICISS report reflected a multifaceted diplomatic and political agenda.15 In particular, its proposals for a responsibility to both prevent and rebuild were testament to its concern with moving away from a politics

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of ‘right’ towards one of ‘responsibility’ rooted in the needs and interests of the individual. Alongside its endeavours to reconcile the principles of state sovereignty and human rights, this shift away from the language of a ‘right of intervention’ to one of ‘the responsibility to protect’ was to provide a hallmark of the R2P endorsed and adopted at the 2005 World Summit meeting. The ICISS report succeeded in bringing to bear a broad constituency of states prepared to acknowledge that sovereignty entailed responsibilities and that international engagement might be legitimate in certain circumstances, as well as in reframing the humanitarian intervention debate by situating military action within a broader gamut of measures.16 However, a number of the recommendations put forward were rejected by the wider international community. For example, the ICISS report advanced ‘precautionary principles’—just cause, right intention, last resort, proportional means and reasonable prospects—grounded in the criteria of jus bellum as a benchmark for military intervention. The report argued that this generated an obligation to intervene in such instances, despite the absence of both a legal and, to a lesser extent, moral justification for such a claim.17 Furthermore, it recommended that the permanent members of the UNSC refrained from casting their power of veto in threshold-crossing situations where no vital interests were at stake and a majority supported collective action.18 Further to the experience of Kosovo, this raised the possibility of unilateral military intervention within endemically weak and fragile states,19 despite the report stipulating that the UN still remained the most appropriate body to authorise the use of force for humanitarian purposes.20 Finally, ICISS identified two alternatives that would allow for humanitarian intervention to be sanctioned in those extreme cases where Security Council authorisation was absent—the General Assembly (GA) ‘Uniting for Peace’ procedure (which requires a two-thirds majority backing) and regional organisations acting under Chapter VIII of the UN Charter.21 The prospect of ‘illegal’ military action provoked fears amongst Russia and China—permanent members of the UNSC—that human protection concerns could be used as a cover for the pursuit of nefarious economic and political objectives, a perception that was to gain further credence following the US-and UK-led invasion of Iraq in 2003. Exemplifying the massive international preoccupation with terrorism in the wake of 9/11,22 both the USA and UK (and, at the time, liberal internationalists including Michael Ignatieff)23 were to give considerable

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weight to the humanitarian case for military intervention in Iraq. Indeed, both countries even invoked the language of the ‘responsibility to protect’ in order to legitimise their actions,24 a position rejected by the international community.25 Instead, exploitation of the country’s oil and gas reserves and thus stronger control over the world’s energy supplies and policies was widely accepted to be at the heart of the US and UK military commitment to regime change in Iraq.26 As a result, the perception of both states as international ‘norm carriers’ was weakened, with the USA and UK thereafter seen as lacking the credibility on the international stage to spearhead humanitarian military operations abroad.27 As Cristina Badescu and Thomas Weiss have argued, the actions of both countries in Iraq almost became a ‘conversation stopper’ for norm development against mass atrocities, nearly choking at birth the emerging norm of R2P.28 At the time, these sentiments were echoed by political commentators including Ian Williams, Richard Falk, Karl Kaiser and John Kampfner.29

The Responsibility to Protect and a Cosmopolitan Approach to Human Protection Despite fears that the invasion of Iraq would undermine the future endorsement of military action under the rubric of humanitarianism, support for humanitarian intervention and, more importantly, the concept of the Responsibility to Protect has continued over the past decade.30 This is evidenced by the 2011 NATO-led operation in Libya. As will be discussed in subsequent chapters, humanitarian intervention in Libya was to constitute an unprecedented collective determination to halt a mass atrocity and, importantly, represented a genuine application of R2P’s conceptual and legal principles. The skewed humanitarian credentials employed by the USA and UK in Iraq, meanwhile, helped to reinforce the boundaries of R2P, clarifying why human rights violations that fall short of genocide, war crimes, ethnic cleansing and crimes against humanity do not justify the use of R2P rhetoric.31 Further to the content and connotations attached to the 2001 ICISS report, therefore, the fallout from the conflict in Iraq was instrumental in shaping the R2P that emerged from the World Summit meeting in 2005. It is also important to acknowledge that the appearance of R2P in its current form is both related to—whilst, at the same time, distinct from—the new collective

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human security agenda that manifested during this period, concerned with the prevention of economic, political and social threats to individual persons through collective state action.32 In Chapter 2, the book explored the principles of collective responsibility, conditional sovereignty and the provision of delineated and limited thresholds for intervention coterminous with a cosmopolitan approach to human protection, alongside the broader maxims of human emancipation, atrocity prevention and human security that engage with this cosmopolitan typology. At the same time, these principles and maxims constitute prima facie aspects of R2P, testament to the cosmopolitan ethical norms intimately bound up with the doctrine which, in turn, provide the basis of the moral relationship prevalent between R2P and cosmopolitan human protection. For example, and a legacy of both the 2001 ICISS recommendations and the 2004 report A More Secure World: Our Shared Responsibility released by the High-Level Panel on Threats, Challenges and Change put in place by Kofi Annan,33 under the aegis of R2P the international community has, through the UN, the responsibility to help protect populations34 from genocide, war crimes, ethnic cleansing and crimes against humanity.35 Put another way, the doctrine confers a collective responsibility on UN member states to act in the event that sovereign governments fail to protect their populations from such violations of human rights and international humanitarian law.36 According to the World Summit Outcome document, this responsibility extends to the use of diplomatic, humanitarian and other peaceful means.37 However, and as clarified under former Secretary-General Ban Ki-moon’s 2009 report Implementing the Responsibility to Protect— endorsed by 180 of the UN’s 193 member states—the responsibility inculcated on the wider international community also extends to the collective use of coercive enforcement measures under Chapter VII of the UN Charter, albeit as a means of last resort.38 Under R2P, each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.39 Should the state be ‘manifestly failing’40 to fulfil this primary responsibility (and further to the recommendations contained within the ICISS report), its sovereignty is abrogated and the responsibility to protect devolved to the international community of states working through the UN Security Council.41 Whilst sovereignty still remains relevant,42 the language contained within the doctrine can be seen to elevate human life, human dignity and, most importantly, human rights

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above the entrenched concept of state sovereignty.43 In short, R2P provides a fresh normative and cognitive agenda through which to understand the primacy of human rights and the relative or conditional nature of state sovereignty.44 In the process, the doctrine helps to reconcile the tension between state sovereignty and human rights endemic to the UN, which hampered efforts to address systematic human rights violations in Bosnia-Herzegovina and Kosovo in the post-Cold War period.45 More importantly in the context of this chapter, R2P can also be equated with the principle of collective responsibility that lies at the heart of a cosmopolitan approach to human protection. As explained in Chapter 2, cosmopolitan human protection imparts a universal and, at the same time, collective duty on the world’s most powerful states to intervene— through the use of force ultima ratio—in cases of gross human rights violations. More specifically, in cases of ‘supreme humanitarian emergencies’, the protection of human rights is understood to both supersede and take precedence over broader concerns with preserving the boundaries of sovereign states. It is important to reiterate that whilst conferring a collective responsibility prima facie on the international community—and, in particular, the UNSC’s permanent member states—to act in the event that sovereign governments fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity, R2P falls short of generating a legally binding obligation46 to respond to such violations of human rights and international humanitarian law. Indeed, there remains at present no ‘substantive rule’ of international law that obliges states to act extraterritorially to prevent other states from committing acts of genocide, war crimes, ethnic cleansing and crimes against humanity.47 In addition, political commentators have drawn attention to the discretionary48 and ad hoc language attached to the doctrine. This is evidenced by Paragraph 139 of the World Summit Outcome document, which stipulates that any collective action will be taken on a ‘case-by-case’ basis.49 Whilst states are under a responsibility to protect, where the primary responsibility of sovereign states is breached it does not, in practice, pass to the wider international community—and, in particular, the UNSC— in the form of a positive duty50 to protect, instead remaining within the discretion of the Security Council to act.51 As will be elaborated upon in Chapter 6, this is illustrated by the fact that the doctrine has yet to be explicitly referred to in the context of the secondary international responsibility to protect, with the idea of such a residual responsibility

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still contested by some members of the Security Council as an appropriate rationale for military action.52 Instead, the implementation of R2P’s conceptual and, in particular, legal principles remains contingent upon the will and compliance of powerful states, with the prevailing inclinations, agendas and interests relevant to such states (and, as will be articulated in Chapter 5, a broad confluence of contextual factors) continuing to influence any decision to intervene in order to protect vulnerable populations. Relatedly, and given that a cosmopolitan approach to human protection is concerned with conferring both a collective and positive duty on the major powers to protect human rights in instances of mass murder, mass population expulsions—including ethnic cleansing—and genocide, it is clear that the relationship between R2P and cosmopolitan human protection remains weak, with the doctrine failing in this respect to fulfil the normative expectations of the cosmopolitan typology. Alongside the maxim of collective responsibility, a further source of congruence between R2P and cosmopolitan human protection can be found in the doctrine’s reconceptualization of state sovereignty. In short, R2P departs from a pristine conception of sovereignty that permits states to deal with individuals as they see fit, towards an approach that regards states as being under a responsibility to protect their populations.53 At the same time, the doctrine modifies the principles of internal and external sovereignty. This is in view of the limits placed on the actions of states within their territories and the residual responsibility conferred on other states to uphold and engage in human security, thus eschewing their autonomy in relation to the wider international community.54 Whilst attempts to redefine state sovereignty have taken place since the end of the Cold War,55 and the idea of ‘sovereignty as responsibility’ was to both predate and evolve exogenously to the doctrine,56 R2P still constitutes both a doctrinal innovation and, more importantly, conceptual development within international law. This is in view of its locus as a codified international principle and prominent institution of international human rights enforcement which, as Buchan explains, confers upon states a positive and affirmative responsibility to protect the fundamental rights of their populations which, in the event that it is not discharged, passes to an international body.57 Further to the provisions of the 2001 ICISS report, should the state fail to uphold its primary duty to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, its sovereignty is abrogated and the responsibility to protect devolved to the international community of states working

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through the UNSC. At the same time, the use of force remains a means of last resort reserved for the most extreme and exceptional cases,58 a hallmark of R2P’s status as a multifaceted diplomatic and political agenda that engages with a broad gamut of preventive and reactive humanitarian measures. As explained in Chapter 2, a cosmopolitan approach to human protection elevates the protection of human rights above the entrenched concept of state sovereignty in instances of mass murder, ethnic cleansing and genocide. It also postulates that intervention—including the use of force ultima ratio—in the internal affairs of states is justified for the purpose of preventing or ending egregious human rights violations, with abusive states subsequently ‘losing’ their sovereign status. In this way, R2P can again be equated with the cosmopolitan typology, with the notion of conditional sovereignty further testament to the cosmopolitan moral tenets intimately bound up with the doctrine. However, whilst R2P has succeeded in principle in reformulating the concept of state sovereignty, the doctrine has yet to consistently translate this into practice. For example, and although occurring prior to the full endorsement of R2P in 2005,59 the international community’s anaemic response to the conflict in Darfur can, at least in part, be accounted for through the reticence of China (with its long-standing policy of non-intervention) and Russia to sanction peace enforcement measures in the absence of consent from the host government in Khartoum.60 This was a result of their continued concern with preserving the integrity of sovereign states. In the more recent case of Syria, meanwhile, the rejection of UN Security Council resolutions aimed at ending the political violence by both China and Russia can be attributed in part to the perception that intervention—military or otherwise—would encroach upon and violate the national sovereignty and territorial integrity of Syria.61 This is despite the actions of the Assad regime constituting a ‘threshold-crossing’ instance of human rights violations under the aegis of R2P62 and, in addition, the doctrine providing a key aspect of the diplomatic and political language invoked by the international community in response to the conflict.63 Thus, concerns amongst UNSC members with preserving the integrity and sovereignty of states have, as the cases of Darfur and Syria illustrate, continued to influence and supersede the international community’s broader normative commitment to the protection of individual human rights. At the same time, and in failing in practice to reconcile the principles of state sovereignty and human rights

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at the global constitutional level (and elevate the role that human rights concerns play in any decision to intervene for human protection purposes), R2P has again failed to adhere to the moral exigencies of cosmopolitan human protection, further underlining the diminutive nature of the relationship between the doctrine and the cosmopolitan typology. A third source of correlation between R2P and cosmopolitan human protection can be found in the high watermark and limited thresholds for international intervention—including the use of force—provided for under the aegis of the doctrine. As explained previously, a cosmopolitan approach to human protection only deems coercive military action justifiable in ‘supreme humanitarian emergencies’, understood to constitute acts of mass murder, mass population expulsions—which fall under the umbrella of ethnic cleansing and genocide. R2P, meanwhile, and whilst stopping short of providing criteria for the use of force (thus deviating from the ICISS recommendations), promulgates a ‘responsibility to protect’ that applies exclusively to cases of genocide, war crimes, ethnic cleansing and crimes against humanity. As Alex Bellamy has argued, R2P clearly identifies its scope and thresholds,64 with its high watermark and limited thresholds for intervention understood to have fairly precise legal meanings grounded in the Genocide Convention, the Rome Statute of the International Criminal Court (ICC), and the practice of the international criminal tribunals for former Yugoslavia and Rwanda.65 Genocide, for example, is defined by the intention to destroy, in whole or in part, a national, ethnic, racial or religious group, including through acts of murder, actual or mental harm, sterilisation and child trafficking.66 War crimes are, by definition, acts that contravene the Genocide Convention such as wilful killing, torture, preclusion of the right to fair and regular trial, unlawful deportation and the taking of hostages.67 Crimes against humanity, meanwhile, include—but are not limited to—acts of murder, extermination, enslavement, rape, torture and imprisonment when committed as part of a widespread and systematic attack against a civilian population.68 Ethnic cleansing, finally, is specified as rendering an area ethnically homogenous by using force or intimidation to remove persons of a given group from a particular area, often through murder or mass population expulsions.69 Further to the legal cogency attached to R2P’s threshold-­ crossing typologies, it is important to emphasise that the limited scope and thresholds for intervention provided for under the doctrine have paradoxically been reinforced by R2P’s misapplication in the cases of Iraq

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(2003), Myanmar (2008), South Ossetia (2008) and, more tacitly, in Sri Lanka (2009). In Iraq, attempts by the USA and UK to invoke the language of R2P were rejected by the international community, with military intervention seen as less a reflection of a positive commitment to protecting human rights than more an expression of nefarious economic and political objectives. Indeed, and with the exception of Michael Ignatieff—who later altered his stance—11 of the 12 ICISS commissioners, including co-chair Gareth Evans, vocally and publicly stated that the 2003 invasion of Iraq violated the principles of the doctrine.70 Consequently, and despite the skewed humanitarian rhetoric employed by the USA and UK, R2P was to become a catalyst for the norm’s evolution, setting in motion the reform negotiations that were to ultimately facilitate R2P’s endorsement at the World Summit meeting in 2005.71 In Myanmar, meanwhile, Cyclone Nargis was to produce the worst natural disaster in the country’s history, affecting between 1.5 and 3 million people with death tolls ranging between 100,000 and 200,000.72 The Burmese authorities initially refused to allow access by foreign workers, insisting on control over all aid operations.73 French Foreign Minister Bernard Kouchner then proposed that the UN invokes R2P to deliver emergency aid without the consent of the Burmese government.74 This recommendation was supported by the French Ambassador to the UN and reiterated by commentators, analysts and politicians.75 However, both UN officials and Asian diplomats—particularly China and the Association of Southeast Asian Nations (ASEAN)—argued that Myanmar was not an R2P situation.76 Unlike the provisions of the original ICISS report, only genocide, war crimes, ethnic cleansing and crimes against humanity—and not environmental or natural disasters—were to act as triggers for R2P action.77 Thus, it was seen as a misapplication of responsibility to protect principles to apply them to the unfolding tragedy in Myanmar.78 In the case of South Ossetia, Russia claimed an R2P mandate, drawing attention to the relationship of the doctrine to the problem of the kin-state.79 Following Georgia’s offensive to regain control over the breakaway province, Russia responded by sending large numbers of troops, launching bombing raids and expelling Georgian military forces from the enclave.80 In turn, President Dmitry Medvedev and Prime Minister Vladimir Putin insisted that Russia had the legal right to move into South Ossetia and prevent genocide, whilst Foreign Minister Sergei Lavrov justified Russia’s use of force as an R2P exercise.81 However,

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Western governments unanimously condemned Moscow’s characterisation of the conflict and, more importantly, the relevance of R2P to Russian military actions.82 The doctrine’s advocates generally saw the Russian argument as an obvious case of misapplication.83 The genocide claim was extraneous, the scale of the response disproportionate to the goals of protecting South Ossetians84 and intervention a classic case of self-defence under the provisions of Article 51 of the UN Charter.85 The New York-based Global Centre for R2P also stated at the time that the doctrine does not provide a justification for the use of force without the approval of the UN Security Council.86 In Sri Lanka, finally, the actions of the incumbent regime against the Liberation Tigers of Tamil Eelam (LTTE) raised questions over the applicability of R2P in the case of a brutal civil war.87 As civilians were prevented from fleeing to safer ground by the LTTE and increasingly subjected to aerial bombardment and mortar fire by government forces,88 calls were made for R2P to be invoked to protect the tens of thousands of civilians caught in the crossfire.89 Writing for the Washington Post, James Traub described Sri Lanka as ‘the kind of cataclysm that states vowed to prevent when they adopted R2P’.90 Furthermore, former UN Humanitarian Co-ordinator Jan Egeland argued that the UN had ‘failed’ to deliver on R2P in the case of Sri Lanka.91 However, a subsequent debate within the Human Rights Council in Geneva revealed overwhelming support amongst developing countries for a government’s right to suppress armed insurgencies and terrorist groups with military force.92 In addition, Ramesh Thakur (a member of the Global Centre for R2P’s advisory board) insisted that it was morally, politically and militarily wrong to fault Sri Lanka for its conduct.93 As such, therefore, the actions of the Sri Lankan government were seen by many as legitimate—and thus outside the contours of R2P—in view of its concerns with protecting its population against the threat of terrorism. In summary, the misapplication of R2P in Iraq, Myanmar, South Ossetia and, more tacitly, in Sri Lanka acted to clarify the scope and substance of the doctrine and, at the same time, reinforce the limits of R2P’s threshold-crossing typologies. With particular reference to the cases of Iraq and South Ossetia, the invocation of R2P in no way lends legitimacy to an intervention, with the clarity of agreement over the doctrine’s conceptual and legal principles (evidenced by its codification and subsequent re-affirmation by 180 of the General Assembly’s 193 member states)

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providing the international community with the means to judge where and when an intervention is justified.94 Moreover, it allows the international community of states to condemn those invocations that fall outside of the contours of the doctrine,95 whether in instances of regime change, environmental disasters, self-defence or acts of terrorism against the state. In addition, the failure of Russia to legitimise force by reference to R2P in the case of South Ossetia suggests concerns that the doctrine could be a Trojan horse for unilateral intervention are misplaced.96 Alongside the legal cogency attached to the doctrine’s threshold-­crossing typologies, therefore, the conceptual clarity associated with R2P has served to underscore the doctrine’s applicability solely to cases of genocide, war crimes, ethnic cleansing and crimes against humanity. At the same time, the delineated and limited thresholds for intervention provided for under the doctrine have provided further evidence of the cosmopolitan moral tenets intimately bound up with R2P, strengthening the relationship between the doctrine and cosmopolitan human protection. However, whilst conferring upon the international community a responsibility to protect that applies exclusively to cases of genocide, war crimes, ethnic cleansing and crimes against humanity, the connotations attached to these threshold-crossing typologies remain essentially contested. For example, Adrian Gallagher has questioned the sense of conceptual clarity and moral competency that surrounds the terminology of genocide. This is in view of its failure to acknowledge the role of the state within the genocidal process and, in addition, protect groups other than those that are national, ethnic, racial and religious in origin.97 Furthermore, and with particular reference to acts of genocide, the threshold-crossing typologies provided for under R2P remain capriciously and selectively applied by the international community and, in particular, UN member states, highlighting how, in practice, such crimes have yet to acquire fully-established legal meanings. For example, the USA and other governments were reticent to use the term genocide in response to the atrocities in Rwanda, as this would have made their policies of inaction untenable.98 A consequence in part of the continued antipathy of the USA towards the loss of troops in conflict situations following events in Somalia, it was not until the 8 June 1994 that the UNSC, in a resolution intended to accelerate the deployment of an expanded UNAMIR, noted ‘with the gravest concern the reports indicating that acts of genocide have occurred in Rwanda’.99 Furthermore, the UN refrained from using the terminology of genocide to describe

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the killings in Sudan,100 inextricably linked to the reticence of China and Russia to sanction peace enforcement measures in view of their long-standing policies of non-intervention in the affairs of sovereign states. More recently, the international community has failed to agree sanctions against the Assad regime in Syria. This is despite the reports published by the Independent International Commission of Inquiry on Syria that have condemned the actions of government commanding officers, security officials and civilian superiors in facilitating crimes against humanity (exacerbated further by the regime’s alleged use of chemical weapons on the towns of Khan Sheikhoun and Douma) and other gross violations of human rights.101 This is in part a consequence of concerns amongst UNSC members—and, more precisely, China and Russia—with preserving the territorial integrity and national sovereignty of states, alongside the latter’s established ties with the incumbent regime and vested economic and political interests in the country.102 Thus, the international community’s use of the terminology of genocide, war crimes, ethnic cleansing and crimes against humanity—and its concomitant responses to such crimes when they take place—continues to be influenced and superseded by the broader inclinations, agendas and interests germane to powerful states. This, in turn, has reiterated the gap between political rhetoric and political reality manifest at the global constitutional level. Consequently, the capricious and selective application of the terminology of genocide, war crimes, ethnic cleansing and crimes against humanity by the international community and, in particular, UN member states, has characterised the continued contestation over the theoretical and empirical implications attached to such terms. At the same time, and given that the thresholds for intervention provided for under R2P provide a further source of congruence between the doctrine and a cosmopolitan approach to human protection, it is again evident that the relationship between the two remains weak, with R2P once more failing to fulfil the normative demands of the cosmopolitan typology. Alongside the maxims of collective responsibility, conditional sovereignty and the provision of delineated and limited thresholds for intervention, R2P also engages and interacts with the broader ethical principles of human emancipation, atrocity prevention and human security coterminous with cosmopolitan human protection. With regard to the relationship between R2P and human emancipation, firstly, this is reflected in the doctrine’s status as a codified international principle in

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which, for the first time, states have agreed to limit their sovereign rights in order to protect individuals from genocide, war crimes, ethnic cleansing and crimes against humanity. In addition, the wider international community has accepted a responsibility to protect these individuals— through the use of force ultima ratio—should the state fail to do so. Whilst R2P has yet to be fully ensconced in international law or explicitly invoked in relation to the secondary international responsibility to protect, the doctrine has succeeded in conferring upon states a primary responsibility to protect the individual rights and freedoms of their peoples in threshold-crossing situations. At the same time, R2P has imparted a subsidiary duty on other states and the UN to intervene and protect these individual rights and freedoms in the event of egregious violations of human rights and international humanitarian law. In the case of R2P and atrocity prevention, meanwhile, it is important to emphasise that the doctrine reflects a theoretical consensus amongst UN member states relating to the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity, imparting a primary responsibility on states to prevent their incitement and a subsidiary duty on the international community to assist states in the prevention of such crimes. In short, R2P can be equated with a politics of prevention,103 with the international community encouraging states to exercise their responsibility to protect, supporting the UN in establishing an early warning capability, committing itself to helping states build capacity to protect their populations and assisting those under stress before crises and conflicts break out.104 Furthermore, the preventive humanitarian measures employed in Kenya in 2007 and Guinea in 2009–2010 were framed through the prism of R2P. In the case of Kenya, the post-election ethnic violence that occurred following the contested re-election of President Mwai Kibaki in 2007 (with opposition leader Raila Odinga refusing to concede victory) led former UN Secretary-General Ban Ki-moon to characterise the situation as relevant to R2P. He reminded the Kenyan government, alongside the political and religious leaders of Kenya, of their legal and moral responsibility to protect the lives of innocent people, urging them to do everything in their power to prevent further bloodshed.105 The Special Adviser for the Prevention of Genocide Francis Deng, meanwhile, also called upon Kenya’s leadership to exercise their responsibility to protect, reminding them that if they failed to do so, they would be held accountable by the international community.106 With the Kenyan leadership

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aware that R2P was now part of the Security Council arsenal,107 the concerted diplomatic effort undertaken by Ban Ki-moon, Francis Deng and other senior UN officials succeeded in prompting Kibaki and Odinga to back down, rein in the mobs and initiate a power-sharing agreement.108 In this way, R2P played an integral role in halting post-election ethnic violence in Kenya, helping to prevent both an escalation in hostilities and the occurrence of further civilian casualties. Furthermore, the preventive humanitarian measures employed in Guinea following the massacre of 156 peaceful protestors by government forces during an opposition rally in Conakry in September 2009109 (alongside the rape and injury of countless other more)110 were also shaped by R2P. Whilst R2P was only specifically referred to by civil society organisations, the atrocity prevention goals pursued by international and regional actors in Guinea were in keeping with the zeitgeist of the doctrine. For example, Ban Ki-moon once again condemned the violence, issuing a statement ‘deploring’ the massacre and urging the government and security forces to exercise restraint.111 In addition, a subsequent UN Commission of Inquiry concluded that the actions of government forces constituted crimes against humanity and, furthermore, that there were reasonable grounds to prove individual responsibility.112 At a regional level, meanwhile, and helping to consolidate R2P’s pledge to work in conjunction with such organisations, the Economic Community of West African States (ECOWAS) condemned the massacre, establishing a commission of inquiry, imposing an arms embargo and appointing an envoy to mediate between the government and opposition.113 The African Union (AU) also imposed limited sanctions and travel restrictions on the incumbent regime.114 This combined pressure was enough to encourage the government to participate in talks brokered by ECOWAS and subsequently conclude the Ouagadaogou agreement in 2010. This, in turn, allowed for the induction of a government of national unity,115 thus preventing the recurrence of atrocity crimes.116 Finally, the relationship between R2P and human security is reflected in the continued importance of states to the protection of individuals. As emphasised previously, the doctrine represents a codified international principle through which states have agreed to limit their sovereign rights in order to protect individuals from genocide, war crimes, ethnic cleansing and crimes against humanity. Furthermore, whilst R2P falls short of generating a legally binding residual obligation, it does succeed in

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conferring a collective responsibility on the international community and, in particular, UN member states—the principal actors capable of ensuring respect for international law and compliance with the human rights regime117—to act in the event that states fail to protect their populations. In addition, and as will be elaborated upon further in Chapter 6, it is the international community of states working through the UN that have created, institutionalised and subsequently re-affirmed R2P, whilst the doctrine has and continues to be invoked in relation to a number of post-Cold War humanitarian crises. Thus, it is UN member states that have taken on both the primary and secondary responsibilities of institutionalising human rights and protecting individuals at the global constitutional level, in accordance with the maxim of human security. Indeed, the relationship between R2P and human security can be traced back to the High-Level Panel on Threats, Challenges and Change, whose 2004 report A More Secure World: Our Shared Responsibility contended that individual states remain the most important actors for protecting individuals and thus realising the human security agenda.118 In summary, R2P engages and interacts with the broader ethical principles of human emancipation, atrocity prevention and human security that underpin a cosmopolitan approach to human protection. As explained, the doctrine imparts upon states a responsibility to protect the individual rights and freedoms of their populations in instances of genocide, war crimes, ethnic cleansing and crimes against humanity, whilst conferring a concomitant—albeit subsidiary—duty on the wider international community to protect these individual rights and freedoms should the state manifestly fail to do so. In addition, the doctrine can be equated with a politics of prevention, underlined by the theoretical consensus that exists amongst UN member states concerning the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity and perpetuated by R2P’s role in shaping the preventive humanitarian measures employed by the international community in Kenya in 2007 and Guinea in 2009–2010. Furthermore, the doctrine emphasises the continued importance of states to the protection of individuals, with states taking on the primary and secondary responsibilities for institutionalising human rights and protecting individuals at the global constitutional level. As explained in Chapter 2, a cosmopolitan approach to human protection advocates military intervention in instances of ethnic cleansing, crimes against humanity and genocide in order to protect individual

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rights and freedoms, supports pre-emptive intervention in cases where intervening parties are convinced that crimes against humanity are imminent—alongside the ‘pre-war’ reconstruction of political authorities and civil society—and stresses the importance of states in implementing the military and civilian measures synonymous with its vision of law-enforcement. In this way, therefore, the maxims of human emancipation, atrocity prevention and human security are again testament to the cosmopolitan ethical norms intimately bound up with the doctrine and, at the same time, the moral relationship prevalent between R2P and the cosmopolitan typology.

Conclusion This chapter has examined the relationship between R2P and the global ethics underpinning a cosmopolitan approach to human protection. In particular, it has argued that the doctrine can be equated with the maxims of collective responsibility, conditional sovereignty and the provision of delineated and limited thresholds for intervention that lie at the heart of this cosmopolitan typology. As explained, the language and rhetoric attached to R2P have helped to reconcile the tension between state sovereignty and human rights endemic to the UN, with the doctrine placing a responsibility on individual states to protect their populations from acts of genocide, war crimes, ethnic cleansing and crimes against humanity which, if not adhered to, devolves to the international community of states working through the UN Security Council. At the same time, the doctrine has modified the principles of internal and external sovereignty, conferring upon states a responsibility to protect the fundamental rights of their populations which, in the event that it is not discharged, passes to an international body in the shape of the UN. Furthermore, R2P clearly identifies its scope and thresholds, with the terminology of genocide, war crimes, ethnic cleansing and crimes against humanity understood to have fairly precise legal meanings grounded in the Genocide Convention, the Rome Statute of the ICC and the practice of the international criminal tribunals for former Yugoslavia and Rwanda. In turn, the limited scope and thresholds for intervention provided for under the auspices of the doctrine have been reinforced by R2P’s misapplication in the cases of Iraq, Myanmar, South Ossetia and, more tacitly, in Sri Lanka. In addition, R2P engages and interacts with the broader ethical principles of human emancipation, atrocity prevention and human security

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that correspond with a cosmopolitan approach to human protection. For example, the doctrine imparts upon states a responsibility to protect the individual rights and freedoms of their populations in instances of genocide, war crimes, ethnic cleansing and crimes against humanity, whilst conferring a subsidiary duty on the wider international community to protect these individual rights and freedoms should the state manifestly fail to do so. In addition, the doctrine reflects a theoretical consensus amongst UN member states pertaining to the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity, helping to shape the preventive humanitarian measures employed in Kenya in 2007 and Guinea in 2009–2010. Finally, R2P stresses the continued importance of states to the protection of individuals, with states taking on the primary and secondary responsibilities for institutionalising human rights and protecting individuals at the global constitutional level. Thus, the maxims of human emancipation, atrocity prevention and human security similarly constitute prima facie aspects of R2P, further testament to the cosmopolitan ethical norms intimately bound up with the doctrine which, in turn, provide the basis of the moral relationship prevalent between R2P and cosmopolitan human protection. However, whilst R2P is analogous to a cosmopolitan approach to human protection, the doctrine has yet to adhere to the moral exigencies of this cosmopolitan typology. As articulated, R2P falls short of generating a legally binding obligation on the international community to protect populations from acts of genocide, war crimes, ethnic cleansing and crimes against humanity, whilst the absence of a positive duty to respond in such instances is compounded by the fact the doctrine has yet to be explicitly referred to in the context of the secondary responsibility to protect. Moreover, R2P has failed in practice to resolve the tension between state sovereignty and human rights and, concomitantly, elevate the role that human rights concerns play in any decision to intervene for human protection purposes. This is evidenced by the intransigence of Russia and China in response to the atrocity crimes committed in Darfur and Syria, a consequence of concerns with preserving the territorial integrity and national sovereignty of states which, at the same time, continue to influence and, on occasion, supersede the international community’s broader normative commitment to the protection of human rights. Finally, the threshold-crossing typologies provided for under the aegis of R2P remain capriciously and selectively applied by the international community and, in particular, UN member states. Consequently, they have

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underlined the continued contestation over the theoretical and empirical implications attached to such terms and how, in practice, genocide, war crimes, ethnic cleansing and crimes against humanity have yet to acquire fully established and recognised legal meanings.

Notes









1.  See Jennifer Welsh, ‘Implementing the “Responsibility to Protect”: Where Expectations Meet Reality’. Ethics and International Affairs, 24 (2010), pp. 418–19; Thomas Weiss, Humanitarian Intervention: Ideas in Action (Cambridge, Polity Press, 2012), pp. 100–4. 2. Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 23; Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 9. 3. Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 17. 4. Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 67. 5.  Again, see Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), pp. 17–18. 6.  Ramesh Thakur, ‘R2P after Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 65. 7. See ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December 2010), (foreword and synopsis); James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 3. 8. Ibid. 9. Peter Hilpold, ‘Intervening in the Name of Humanity: R2P and the Power of Ideas’. Journal of Conflict and Security Law, 17 (2012), p. 68. 10. Alongside ‘just cause’ thresholds in the form of large-scale loss of life and ethnic cleansing, the report also promulgates four precautionary principles that humanitarian intervention must meet in order for it to be deemed legitimate, These are ‘right intention’, ‘last resort’, ‘proportional means’ and ‘reasonable prospects’. See ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December

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2010), (paras. 5–6). The notion of a collective international responsibility to protect, meanwhile, was also advanced by the 2004 High Level Panel on Threats, Challenges and Change commissioned by Kofi Annan, which subsequently laid the foundations for the R2P that emerged from the World Summit meeting in 2005. For further discussion, see both Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 11; Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 356. 11. ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December 2010), (para. 80). 12. Ibid., (paras. 82–125). 13. Ibid., (paras. 186–218). For a summary, see also Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, Cambridge University Press, 2006), p. 257. 14.  This contention is put forward in Graham Harrison, ‘No More Rwandas? The Manifest Failings of R2P in Theory and Practice’ (forthcoming, 2013), p. 12. 15. Jennifer Welsh, ‘Implementing the “Responsibility to Protect”: Where Expectations Meet Reality’. Ethics and International Affairs, 24 (2010), p. 416. 16. Alex Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), p. 622. 17. Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 10. 18. ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December 2010), (para. 241). See also Alex Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), p. 621. 19. Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’. Ethics and International Affairs, 19 (2005), p. 36. 20. ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December 2010), (para. 7). See also James Pattison, Humanitarian

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Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 43. 21. ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December 2010), (paras. 248–55). See also Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 104; Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into R2P’. Ethics and International Affairs, 25 (2011), p. 257. 22. Gareth Evans, ‘From Humanitarian Intervention to the Responsibility to Protect’ (International Crisis Group, 2006). http://www.crisisgroup. org/en/publication-type/speeches/2006/from-humanitarian-intervention-to-the-responsibility-to-protect.aspx (accessed 4 March 2013), (para. 30). 23. Jennifer Welsh, ‘Norm Contestation and the Responsibility to Protect’. Global Responsibility to Protect, 5 (2013), p. 370. 24.  See Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), pp. 354–55; Alex Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’ (E-International Relations, 2011). http://www.e-ir.info/2011/09/27/the-responsibility-to-protect-and-the-problem-of-regime-change (accessed 14 April 2013), (para. 7). 25. See James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 247; Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’. Ethics and International Affairs, 19 (2005), p. 37. 26.  Amongst others, see Paul Bignell, ‘Secret Memos Expose Link Between Oil Firms and Invasion of Iraq’ (The Independent, 2011). http://www.independent.co.uk/news/uk/politics/secret-memos-expose-link-between-oil-firms-and-invasion-of-iraq-2269610. html; Dr. Najib Ghadban, ‘The War on Iraq: Justifications and Motives’ (Al Jazeera, 2003). http://www.aljazeera.com/arch ive/2003/08/2008410151856461833.html; and Nafeez Ahmed, ‘Iraq Invasion Was About Oil’ (The Guardian, 2014). https:// www.theguardian.com/environment/earth-insight/2014/mar/20/ iraq-war-oil-resources-energy-peak-scarcity-economy (all accessed 26 October 2017). 27. Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’. Ethics and International Affairs, 19 (2005), p. 39.

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28.  See Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), pp. 354 and 361. 29. For a summary, see Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 68. 30. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 247. 31.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 362. 32. Whilst its origins can be traced back to the early 1990s, the concept of human security became prominent following the release of a report by the Commission on Human Security in 2003, bringing under its remit physical protection, rights and development centred upon the individual. In short, it is concerned with switching the focus from military threats to the state to political, economic, environmental and gender-based threats to individuals, all of which have occurred in an increasingly globalised era. At the same time, it seeks to enhance human rights, strengthen human development and protect individuals from a broad range of threats. Further discussion is provided in Neil MacFarlane and Yuen Khong, Human Security and the UN: A Critical History (Bloomington and Indianapolis, Indiana University Press, 2006), pp. 225–59. The subject of human security is also touched upon by David Chandler in ‘Resilience and Human Security: The Post-interventionist Paradigm’. Security Dialogue, 43 (2012). 33.  See in particular Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 105. Discussion of the High-Level Panel’s report and its role in shaping R2P’s normative framework is also provided in Thomas Weiss, Humanitarian Intervention: Ideas in Action (Cambridge, Polity Press, 2012), p. 126; Eki Omorogbe, ‘The African Union, Responsibility to Protect and the Libyan Crisis’. Netherlands International Law Review, 59 (2012), pp. 146–47. 34. Similarly to Kant’s theory of international law, R2P also affords protection to stateless people. 35.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN.pdf (accessed 15 August 2013), (para. 139). 36. See Jennifer Welsh, ‘Turning Words into Deeds? The Implementation of the Responsibility to Protect’. Global Responsibility to Protect, 1 (2010), p. 151.

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37.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN.pdf (accessed 15 August 2013), (para. 139). 38.  Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2014). http://www.unrol.org/doc. aspx?d=2982 (accessed 3 September 2013), (paras. 11 and 49). See also Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), pp. 35–39; Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 14; and Marie-Eve Loiselle, ‘The Normative Status of the Responsibility to Protect After Libya’. Global Responsibility to Protect, 5 (2013), p. 325. 39 The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN.pdf (accessed 15 August 2013), (para. 138). 40. Whilst outside the scope of this book, Adrian Gallagher has argued that a substantial degree of ambiguity and inconsistency surrounds this term and, more specifically, how it is interpreted and applied. For further discussion, see Adrian Gallagher, ‘What Constitutes a ‘Manifest Failing’? Ambiguous and Inconsistent Terminology and the Responsibility to Protect’. International Relations, 28 (2014), pp. 428–44. 41.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 356. 42. Ibid. 43. See Kofi Annan in Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 92. 44.  See Edward Luck, ‘The Responsibility to Protect: Growing Pains or Early Promise?’ Ethics and International Affairs, 24 (2010), pp. 349–65. 45. In relation to Bosnia Herzegovina, see Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 179. With regard to Kosovo, see James Gow, ‘International Engagement and the Yugoslav War of Dissolution’, in International Intervention in Local Conflicts: Crisis Management and Conflict Resolution Since the Cold War, ed. Uzi Rabi (New York, I.B. Tauris, 2010), p. 72. 46. See Carsten Stahn’s critique of R2P in Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), pp. 68–69. 47. Melissa T. Labonte, ‘Whose Responsibility to Protect? The Implications of Double Manifest Failure for Civilian Protection’. International Journal of Human Rights, 16 (2012), p. 988.

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48.  See, for example, Michael Doyle, ‘International Ethics and the Responsibility to Protect’. International Studies Review, 13 (2011), p. 80. 49. See The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/ I520EN.pdf (accessed 15 August 2013), (para. 139). 50. For a definition, see Chapter 2. Furthermore, a summary of positive and negative duties in relation to human rights, is provided in Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), pp. 100–2. 51. Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ The American Journal of International Law, 101 (2007), pp. 109, 120. 52.  Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into R2P’. Ethics and International Affairs, 25 (2011), p. 255. 53. Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 67. 54.  See Johan Alberth and Henning Carlsson, ‘Cosmopolitanism, State Sovereignty and UN Reform 2003–2005’ (Linkoping University, 2008). www.iei.liu.se/stat/…/c…/C-uppsatsJohanAlberthHenningCarlsson.pdf (accessed 12 December 2010), (paras. 72 and 76). 55. See in particular Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), pp. 68–69; Dominick McGoldrick, ‘The Principle of Non-Intervention: Human Rights’, in The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst, eds. A. Vaughan Lowe and Colin Warbrick (London, Taylor and Francis, 1994), p. 106; and Graham Harrison, ‘No More Rwandas? The Manifest Failings of R2P in Theory and Practice’ (forthcoming, 2013), p. 8. 56. Whilst its roots lie in the work of former Sudanese diplomat Francis Deng in the early 1990s, its continued evolution is characterised by the notion of ‘international criminal responsibility’ contained within Article 19 of the International Law Commission’s Draft Articles on State Responsibility adopted in 2001. For further discussion of international criminal responsibility, see Dominick McGoldrick, ‘The Principle of Non-Intervention: Human Rights’, in The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst, eds. A. Vaughan Lowe and Colin Warbrick (London, Taylor and Francis, 1994), p. 106; Marcel Brus, ‘Bridging the Gap Between State Sovereignty and International Governance: The Authority of Law’, in State, Sovereignty and International Governance, ed. Gerard Kreijen

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(Oxford, Oxford University Press, 2002), p. 12. Criticism of the originality associated with the term ‘sovereignty as responsibility’ can also be found in Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ The American Journal of International Law, 101 (2007), pp. 111–15; Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 139. 57. Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 70. 58.  Gareth Evans, Ramesh Thakur, and Robert Pape, ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’. International Security, 37 (2013), p. 202. 59. See Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 53. 60.  See both Michael Barnett and Thomas Weiss, Humanitarianism Contested: Where Angels Fear to Tread (Abingdon, Routledge, 2011), p. 96; James Traub, ‘Unwilling and Unable: The Failed Response to the Atrocities in Darfur’ (Global Centre for the Responsibility to Protect, 2010). http://responsibilitytoprotect.org/GCR2P_UnwillingandUnable TheFailedResponsetotheAtrocitiesinDarfur.pdf (accessed 12 December 2010), (para. 78). 61. For a summary, see Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (paras. 51–56). 62. This can be established from the reports published by the Independent International Commission of Inquiry on Syria—which will be returned to later in this chapter—the continued references to R2P in the UN’s draft resolutions on Syria and, furthermore, the actions of the Assad regime, which can be seen to constitute a ‘crime against humanity’ as per the provisions of the Rome Statute of the International Criminal Court (ICC). 63. See Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (paras. 46–51). In addition, and whilst the agreement within the UNSC on Resolution 2118 to rid Syria of its chemical weapons in 2013 was not explicitly linked with or framed through the prism of R2P, it can be seen within the broader context of concerns with human protection, with Ban Ki-moon arguing at the time that the use of such weapons against civilians—if proven—would constitute a crime against humanity. 64. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 169.

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65. See Alex Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), pp. 623–24. 66. The United Nations, ‘Convention on the Prevention and Punishment of the Crime of Genocide’ (UN, 1948). https://treaties.un.org/doc/ Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf (accessed 13 September 2013), (para. 2). 67.  See ICC, ‘Rome Statute of the International Criminal Court’ (ICC, 2002). http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be940a655eb30e16/0/rome_statute_english.pdf (accessed 13 September 2013), (para. 8). 68.  Ibid., (para. 7). Discussion of the Rome Statute is also provided in Michael Doyle, ‘International Ethics and the Responsibility to Protect’. International Studies Review, 13 (2011), p. 81; Thomas Weiss, Humanitarian Intervention: Ideas in Action (Cambridge, Polity Press, 2012), p. 114. 69. This was the definition provided in a 1993 report by a Commission of Experts established by then-UN Secretary-General Boutros BoutrosGhali, with the Commission confirming ethnic cleansing had occurred in the former Yugoslavia. See The United Nations, ‘Letter dated 24th May 1994 from the UN Secretary General to the President of the Security Council’ (UNSC, 1994). http://www.icty.org/x/file/About/OTP/un_ commission_of_experts_report1994_en.pdf (accessed 3 December 2014), (para. 129). 70.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 361. 71. Jennifer Welsh, ‘Norm Contestation and the Responsibility to Protect’. Global Responsibility to Protect, 5 (2013), p. 372. 72.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 362. 73. Ibid. 74. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 57. 75. Ibid. 76. Ibid. 77.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 363. 78. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 58.

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79.  Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 68. 80.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 364. 81. Ibid. 82. Ibid. 83. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 56. 84. Ibid. 85.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 364. 86. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 56. 87.  Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 68. 88. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 60. 90. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 61. 91. Ibid. 92.  Ramesh Thakur, ‘R2P after Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 68. 93. See Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 61. 94. Luke Glanville, ‘In Defense of the Responsibility to Protect’. Journal of Religious Ethics, 41 (2013), p. 178. 95. Ibid. 96. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 56. 97. Adrian Gallagher, Genocide and Its Threat to Contemporary International Order (Basingstoke, Palgrave Macmillan, 2013), p. 14. It should be acknowledged that he does accept the terms ‘intent’ and ‘destroy’ that form an intrinsic part of the language of genocide, whilst also welcoming R2P’s incorporation of ‘crimes against humanity’ that recognises the protection of political, economic and gendered groups. 98. Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001), p. 146. 99. Ibid. 100.  Tvankchian Parkev, ‘Debate Continues Over What Constitutes Genocide’ (World Focus, 2009). http://www.armeniandiaspora.com/

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showthread.php?158763-Debate-Continues-Over-What-ConstitutesGenocide (accessed 4 March 2014), (para. 6). A useful analysis of the gap between rhetoric and reality on the subject of genocide can also be found in Robert Pape, ‘When Duty Calls: A Pragmatic Standard of Humanitarian Intervention’. International Security, 37 (2012), pp. 46–47. 101.  See in particular the first and second reports of the Commission (UNOHCHR, 2011 and 2012). Available at http://www.ohchr.org/ EN/HRBodies/HRC/IICISyria/Pages/AboutCoI.aspx (accessed 15 January 2016). 102. Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 99). 103. See Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), pp. 36–38; Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, Cambridge University Press, 2006), p. 257; and Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 72. 104.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/ I520EN.pdf (accessed 15 August 2013), (paras. 138 and 139). 105. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 54. 106. Ibid. 107.  Michael Doyle, ‘The Politics of Global Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 20. 108. See Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), pp. 54–55; Michael Doyle, ‘The Politics of Global Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 20. 109.  Jennifer Welsh, ‘The Responsibility to Prevent: Assessing the Gap Between Rhetoric and Reality’. Cooperation and Conflict, 51 (2015), p. 221. 110. Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 62. 111. Ibid., p. 63. 112. Ibid. 113. Ibid., p. 62.

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114. Ibid. 115. Ibid., p. 63. 116. Jennifer Welsh, ‘The Responsibility to Prevent: Assessing the Gap Between Rhetoric and Reality’. Cooperation and Conflict, 51 (2015), p. 221. 117. Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 44. 118.  Report of the Secretary General’s High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (UN, 2015). http://www.un.org/en/peacebuilding/ pdf/historical/hlp_more_secure_world.pdf (accessed 25 June 2017), (para. 27).

CHAPTER 5

The Responsibility to Protect and Cosmopolitan Global Justice

This chapter will examine the nexus between R2P and both the ­distributive and criminal forms of cosmopolitan global justice. In the case of the ‘poverty and causation’ model of cosmopolitan distributive justice, it will argue that the doctrine tacitly acknowledges the importance of the global socio-economic realm in achieving justice for individuals and, at the same time, begins to provide recommendations on how the global conditions of poverty and inequality conducive to protracted intra-state warfare could potentially be subverted. In the process, R2P has reinforced—albeit imperfectly—its relationship with cosmopolitan human protection, with the latter intrinsically linked to the principles of distributive global justice and, in particular, the commitment to eliminating gross inequalities that cause large-scale humanitarian crisis. At the same time, in tentatively bridging the gap between the poverty and causation model of distributive justice and cosmopolitan human protection, the chapter will contend that R2P has enhanced the veracity and credibility of the cosmopolitan typology as a contemporary approach to international relations theory, providing a normative and conceptual template through which the latter’s failure to fulfil the demands associated with cosmopolitan distributive justice can begin to be subjugated. In the case of cosmopolitan criminal justice, meanwhile, the chapter will argue that R2P can be equated with this cosmopolitan ideal,

© The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_5

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further testament to the cosmopolitan ethical norms intimately bound up with the doctrine and, crucially, the moral relationship prevalent between R2P and cosmopolitan human protection. Although the doctrine has yet to constitute a fully established form of international criminal justice at the global constitutional level, R2P imparts a residual duty on the international community to intervene in instances of genocide, war crimes, ethnic cleansing and crimes against humanity— through the use of force as a last resort—in order to remedy an ‘injustice’ and protect people’s fundamental rights and interests. The c­ hapter will acknowledge that realist objections to this vision of criminal justice remain both relevant to, and manifest within, contemporary international relations, whilst the implementation of the doctrine’s principles remains contingent upon a broad confluence of complex and overlapping contextual factors. However, it will contend that R2P has also strengthened the relevance of cosmopolitan criminal justice. This is as a result of weakening opposition to its scope and demands grounded in the narratives of realism, liberalism and liberal-nationalism. More specifically, R2P has strengthened the presence of ethical considerations at the global constitutional level, helped to reconcile the tension between human rights and state sovereignty, embodies a conceptual development within international law created, institutionalised and subsequently re-affirmed by a majority of UN member states and, finally, has begun to address concerns over the potential ‘misuse’ of the language of human rights and humanitarian intervention. In addition, the doctrine exhorts the virtues of international responsibility in lieu of the prioritisation of well-ordered and self-sufficient communities, a just society or the role of co-nationals in advancing principles of domestic distributive justice, gives equal consideration to the rights and interests of all individuals and imparts a responsibility on other states and the UN to intervene against an illiberal or illegitimate political regime in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. In this way, and as will be argued, R2P has strengthened the relevance of cosmopolitan human protection as a contemporary approach to international relations theory, providing a normative and empirical framework through which a further weakness associated with this cosmopolitan typology can begin to be addressed and, in the process, perpetuating the relationship between the doctrine and cosmopolitan human protection.

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The Responsibility to Protect and Cosmopolitan Distributive Justice Alongside its nexus with the maxims of collective responsibility, conditional sovereignty and the provision of delineated and limited thresholds for intervention and, furthermore, its engagement with the broader ethical principles of human emancipation, atrocity prevention and human security, R2P also shares a diminutive relationship with the poverty and causation model of distributive justice. As explained in Chapter 2, this vision of distributive justice postulates that influential global actors and powerful states have played a pre-eminent role in widening global inequalities and social exclusion through limiting the distribution of resources, precipitating the conditions conducive to violent and protracted forms of intra-state conflict. Thus, it so follows that altering unjust economic conditions, reforming market conditions and strengthening poverty reductions efforts would all reduce the likelihood of such conflict, at the same time reflecting the incorporation of cosmopolitan distributive principles.1 R2P has been criticised for its focus on the duty of states to address the root causes of conflict, whilst remaining ambiguous on the responsibility of the wider international community to rectify its role in perpetuating such causes.2 In short, whilst placing a subsidiary duty on the international community to assist states in the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity, R2P fails to sufficiently recognise the importance of the global socio-economic realm in achieving justice for individuals and, in particular, the actions of the international community in contributing to global conditions of poverty and inequality.3 This is reinforced by the ‘three pillar’ approach contained within Ban Ki-moon’s 2009 report titled Implementing the Responsibility to Protect4 and, subsequently, by the former UN Secretary-General’s follow-up report Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect in 2014. In the case of the latter, and with a particular emphasis on ‘Pillar Two’—international assistance and capacity building—Ban Ki-moon elaborates upon the three broad categories of assistance promulgated under the ambit of his 2009 report. The first category encourages states to meet their responsibility to protect by disseminating legal standards and normative commitments (in particular, those relating to

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humanitarian standards and norms), reminding states of the importance of adherence and engaging in dialogue on ways to fulfil their responsibility.5 The second, meanwhile, involves assisting states in building national capacities in order to prevent acts of genocide, war crimes, ethnic cleansing and crimes against humanity. This includes through helping to strengthen participatory and accountable political institutions, aiding in the promotion and protection of the rights of minorities and building ‘inhibitors’ such as an accountable security sector, an impartial and competent electoral commission and independent judicial and human rights institutions that would enable states to address the early signs of crisis.6 The third category, finally, concerns assisting states to protect in situations of emerging or ongoing crisis by providing additional capacity and expertise, whether through strengthening cross-border customs co-operation and information-sharing networks—in the process helping to stem the flow of small arms and weapons—or providing civilian assistance in the fields of conflict-resolution, human rights and law enforcement.7 Ban Ki-moon also highlights the progress made by the UN in helping states to exercise their responsibility to protect, with the Office of the High Commissioner for Human Rights (OHCHR) already emerging as a global resource for assisting countries in observing their human rights obligations.8 The OHCHR has encouraged states to meet their protection responsibilities by aiding the implementation of human rights standards, the development of national human rights institutions and supporting the introduction of commissions of enquiry into allegations of systematic human rights abuses.9 In summary, Ban Ki-moon’s 2014 report on R2P represents an extension of the international community’s responsibilities to encourage states to exercise their responsibility to protect, to support the UN in establishing an early warning capability, to commit to helping states build capacity to protect their populations and to assist those states under stress before crises break out. Crucially, however, the emphasis is still on states to acknowledge and subsequently address the root causes of conflict. Put simply, under the ambit of R2P, it is states that are primarily responsible for eliminating the gross inequalities and forms of social exclusion conducive to such violent and protracted forms of intra-state warfare. Indeed, this trend has continued with the release of UN SecretaryGeneral Antonio Guterres’ first annual report on R2P released in 2017 titled Implementing the Responsibility to Protect: Accountability for Prevention. Whilst the report acknowledges the role that

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intergovernmental bodies and the UN system can play in s­trengthening accountability for the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity, it remains the primary responsibility of states to prevent such crimes. This is evident in Guterres’ recommendations that member states appoint a senior official to serve as a national focal point for the responsibility to protect to coordinate national activities, share good practices and cooperate on capacity-building; sign, ratify and implement the key international treaties and protocols a­ ssociated with the prohibition and prevention of atrocity crimes and the provision of assistance to their victims; issue open invitations to the ­special procedures mandated by the Human Rights Council and include an ­ assessment of the risks of atrocity crimes and the measures taken in their regular reporting to other human rights mechanisms; conduct regular risk assessments and take the necessary action to reduce the risks of atrocity crimes, if identified; and establish domestic mechanisms to ensure that national authorities can be held accountable for acting upon their commitment to the responsibility to protect, for example through thematic parliamentary debates and permanent parliamentary working groups.10 However, the 2001 ICISS report (which, as explained in the previous chapter, shaped both the content of and connotations attached to R2P in its current form) does provide a link between the doctrine and the poverty and causation model of distributive justice. More specifically, the report alludes to such ‘root’ causes of conflict as poverty, political repression and uneven distribution of resources that can be remedied through preventive global strategies that work to promote human rights, protect minority rights and institute political arrangements in which all groups are represented.11 Furthermore, and helping to strengthen the relationship between R2P and cosmopolitan distributive justice, Ban Ki-moon’s 2014 report on the doctrine does tacitly acknowledge the importance of the global socio-economic realm in achieving justice for individuals and, at the same time, begins to provide recommendations on how global conditions of poverty and inequality conducive to protracted intra-state warfare could potentially be subverted. More specifically, the report highlights the role of private sector actors and, in particular, businesses in both indirectly contributing to the commission of atrocity crimes through their operations and business practices—particularly in extractive industries—and directly enabling those engaged in such acts through their products and services.12 The commercial activities of the

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private sector have exacerbated social cleavages and contributed to the occurrence of atrocity crimes, the risk of which would be alleviated by businesses complying with the 2011 United Nations Guiding Principles on Business and Human Rights.13 For example, these Principles include the corporate responsibility to respect human rights, which encompasses such foundational principles as avoiding the causation or contribution to adverse human rights impacts through business activities and addressing such impacts when they occur, alongside seeking to prevent or mitigate adverse human rights impacts that are directly linked to business operations, products or services through private sector relationships.14 This corporate responsibility to respect human rights also includes operational principles in the form of a policy commitment, which businesses should express through a statement of policy that is approved at the most senior level of the business enterprise, stipulates the business’s human rights expectations of its personnel and partners, is publicly available and communicated both internally and externally.15 Finally, Ban Ki-moon’s 2014 report details how private sector actors could consider developing risk management tools that explicitly incorporate atrocity crime risks, whilst they could also contribute to building resilience to atrocity crimes by strengthening local economies and employing a workforce inclusive of all social groups.16 As explained in Chapter 2, a cosmopolitan approach to human protection fails to fulfil the demands associated with the poverty and causation model of cosmopolitan distributive justice, focusing primarily on atrocity response rather than atrocity prevention. This is despite being intrinsically linked to the principles of distributive global justice—and the concomitant commitment to eliminating gross inequalities that cause large-scale humanitarian crisis—through its broader cosmopolitan aims of public right and the entitled use of force. Thus, given that R2P alludes to the role of the global socio-economic realm in contributing to conditions of global poverty and inequality, whilst also providing cursory recommendations on how to address conflict-inducing behaviour by influential global actors, the doctrine can be understood to have reinforced—albeit imperfectly—its relationship with cosmopolitan human protection. Furthermore, and in tentatively bridging the lacuna between the poverty and causation model of distributive justice and cosmopolitan human protection, R2P has also enhanced the veracity and credibility of the cosmopolitan typology as a contemporary approach to international relations theory. In particular, the doctrine has provided a normative and

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conceptual template through which the failure of cosmopolitan human protection to adhere to the moral exigencies of cosmopolitan distributive justice can, in theory, begin to be subjugated.

The Responsibility to Protect and Cosmopolitan Criminal Justice Alongside its relationship with the poverty and causation model of cosmopolitan distributive justice, R2P can also be equated with the vision of criminal justice that lies at the heart of a cosmopolitan approach to human protection. As explained in Chapter 2, cosmopolitan human protection represents a form of international criminal justice, concerned with intervention—through the use of force as a last resort—and the concomitant duty placed on non-compatriots to intervene within a sovereign territory in order to remedy an injustice. Under the auspices of cosmopolitan human protection, a duty falls on external agents (powerful states situated within the international community) to intervene and protect human rights when they are violated,17 with the sovereignty of the host state eschewed in the pursuit of international justice.18 In the case of R2P, meanwhile, should a state fail to protect its population from the ‘injustices’ of genocide, war crimes, ethnic cleansing and crimes against humanity, a collective—albeit residual—responsibility falls upon the international community of states to respond to such violations of human rights and international humanitarian law. This response primarily takes the form of diplomatic, humanitarian and peaceful means, but also extends to the use of coercive measures, including military force as a matter of last resort. Thus, R2P has similarly come to constitute a form of international criminal justice, imparting a residual duty on the international community of states to intervene in threshold-crossing situations in order to remedy an injustice and protect people’s fundamental rights and interests. In this way, R2P can again be understood to correspond with a cosmopolitan approach to human protection, further testament to the cosmopolitan ethical norms intimately bound up with the doctrine and, at the same time, the moral relationship prevalent between R2P and the cosmopolitan typology. Moreover, R2P has also enhanced the relevance of the cosmopolitan vision of criminal justice. More specifically, the doctrine has weakened opposition to the scope and demands of cosmopolitan

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criminal justice rooted primarily in the narratives of realism, liberalism and liberal-nationalism, in the process helping to strengthen the relationship between the doctrine and cosmopolitan human protection. Realists deem this vision of justice to be largely extraneous, expressing contempt for the naiveté of any view that relies on such ethical considerations.19 This is as a consequence of the prevailing inclinations, agendas and interests of states,20 evidenced recently by Russia’s decision to veto proposed sanctions both in relation to the Assad regime’s alleged use of chemical weapons in Syria and the requirement that he co-operate with investigators following the chemical attack on the town of Khan Sheikhoun. The National Interest21—defined principally in terms of military security, political independence22 and economic prosperity—in particular, is understood to be independent of all other considerations, constituting not only a political necessity but also a moral duty for states.23 Furthermore, realists would argue that in those instances where states undertake military intervention under the guise of humanitarian pretexts, this is often premised on imperialist and, more specifically, self-interested considerations.24 This is evidenced by the Delta Force Operation in Somalia in 1993, where an international commitment to humanitarian protection was eclipsed by the wider concerns of the UN SecretaryGeneral and US administration with the capture of General Aideed and his key allies.25 It is also reflected in the economic and political interests that precipitated the US-and UK-led invasion of Iraq in 2003.26 Liberals such as John Rawls, meanwhile, are concerned with a political (as opposed to moral) theory of justice, promulgating principles of distributive justice that exist within well-ordered and self-sufficient communities.27 At the same time, Rawls rejects the maxim of a general responsibility to protect individuals that permeates sovereign boundaries.28 Whilst basic humanitarian duties of assistance to help burdened societies to achieve the required level of economic and social development to become well-ordered is advocated,29 particularly in relation to individuals living under the conditions of an illiberal or illegitimate political regime, there is no general requirement to take responsibility for others by engaging in inter-state relations. This is re-affirmed by his principle of non-intervention.30 Rawls’ theory of political justice has also influenced liberal-­nationalist theorists such as Thomas Nagel. Nagel argues that sovereign states make unique demands on the will of their members which, in turn, bring with them exceptional obligations, the positive obligations of

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distributive justice.31 Whilst there are universal relations in which we stand to everyone, and there can be understood to exist a ‘secondary’ and non-contingent obligation to protect individuals in instances of systematic human rights violations, such a requirement is subordinate to the rights and duties associated with the demands of distributive justice.32 ‘Generalised’33 liberal-nationalists such as David Miller, meanwhile, promulgate a theory of distributive justice that applies only within national boundaries.34 Miller is concerned both with the attachment each individual has to his or her nation and, in addition, the idea that obligations to co-nationals—particularly those underscored by the egalitarian principles of distributive justice—take precedence over humanitarian obligations to foreigners.35 Whilst acknowledging a subordinate duty to protect individual human rights, Miller postulates that the responsibilities placed on co-nationals to advance the egalitarian principles of distributive justice take precedence over the duties conferred on the international community to secure the basic rights of people exogenous to the boundaries of states.36 With regard to R2P, meanwhile, the evolution of the doctrine has taken place within the context of a new politics of protection, coming to reflect a prominent institution of international human rights enforcement which, as will be discussed in Chapter 6, has further encapsulated how the collective international responsibility to promote international peace and security under the auspices of the UN has been increasingly extended to the protection of human rights in the post-Cold War period. Put simply, R2P has strengthened the recognition and institutionalisation of human rights and, at the same time, the presence of ethical considerations at the global constitutional level. Moreover, the doctrine has helped to reconcile the tension between sovereignty—and thus state-defined interests—and human rights through modifying the principles of internal and external sovereignty, represents a conceptual development within international law created, institutionalised and subsequently re-affirmed by a significant majority of UN member states (embodying a theoretical consensus37 amongst UN member states to take the protection of civilians more seriously)38 and, as will be argued in Chapter 6, continues to be invoked by the international community in response to systematic and egregious violations of human rights. Furthermore, and the subject of discussion in Chapter 7, R2P has begun to address concerns over the potential ‘misuse’ of the language of human rights and humanitarian intervention and, crucially, weakened the presence of negative imperialist

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trends, characterised by the primarily humanitarian objectives pursued by the international community in Libya. Thus, the doctrine has strengthened the presence of a global human rights discourse in—and the relevance of cosmopolitan criminal justice to—the foreign policy objectives of UN member states. In the process, R2P has, both in theory and in practice, weakened realist opposition to this cosmopolitan ideal predicated on the inclinations, agendas and national interests of states prevalent at the global constitutional level. Furthermore, R2P has qualified liberal and liberal-nationalist narratives that run antithetical to this cosmopolitan vision of criminal justice. For example, the doctrine exhorts the virtues of international responsibility in lieu of the prioritisation of well-ordered and self-sufficient communities, a just society or the role of co-nationals in advancing principles of egalitarian distributive justice endogenous to states. In addition, R2P gives equal consideration to the rights and interests of all individuals, placing a contingent and universal responsibility on the international community to protect populations in instances of systematic and egregious human rights violations. Furthermore, and whilst placing a primary duty on sovereign states to respect the dignity and basic human rights of their people, R2P also imparts a residual responsibility on other states and the UN to intervene against an illiberal or illegitimate political regime in the event of genocide, war crimes, ethnic cleansing and crimes against humanity. Through tacitly acknowledging the importance of the global socio-economic realm in achieving justice for all individuals and providing cursory recommendations on how the global conditions conducive to protracted intra-state warfare could potentially be subverted, meanwhile, R2P is also comparable to a theory of cosmopolitan distributive justice concerned with providing equality to individuals across rather than to well-ordered communities within states, reinforcing the dichotomy between the cosmopolitan and liberal approaches to distributive justice. Given R2P’s locus as a prominent institution of international human rights enforcement which, through its conception, codification and continued invocation by UN member states has strengthened the relevance of cosmopolitan criminal justice, the language and rhetoric attached to the doctrine can be understood to have further attenuated opposition to the scope and demands associated with this cosmopolitan maxim rooted in the ideologies of liberalism and liberal-nationalism. However, although R2P shares a connection with cosmopolitan criminal justice (and has enhanced the latter’s relevance), the doctrine has

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thus far failed to fulfil the moral exigencies axiomatic of this cosmopolitan ideal. For example, R2P falls short of conferring a legally binding obligation on the international community to protect in instances of genocide, war crimes, ethnic cleansing and crimes against humanity, whilst the secondary responsibility inculcated on the UN and its member states does not translate in practice into a positive duty to protect. Indeed, R2P constitutes an imperfect duty, with no member of the international community bound to act in response to an R2P case and the doctrine permitting flexibility in compliance.39 Furthermore, the doctrine has yet to be explicitly invoked in relation to the secondary international responsibility to protect in instances where state authorities fail to protect their populations, illustrative of the absence of agreement amongst UN member states over the implementation of R2P’s conceptual and legal principles. Finally, and as will be argued in Chapter 7, the doctrine fails to offer a guarantee against the wider abuse of arguments for the use of force or negate the presence of imperialist trends at the global constitutional level. Although imparting a residual duty on the international community to act in instances of genocide, war crimes, ethnic cleansing and crimes against humanity in order to remedy an injustice and protect the fundamental rights and interests of individuals, therefore, R2P has yet to constitute a fully established form of international criminal justice, both in theory and in practice. At the same time, and whilst serving to underline the diminutive nature of the relationship between the doctrine and cosmopolitan criminal justice, R2P’s shortcomings in relation to this cosmopolitan ideal have also reiterated its failure to fulfil the demands axiomatic of cosmopolitan human protection, further qualifying the nexus between R2P and the cosmopolitan typology. Moreover, and despite the progressive and evolutionary nature of R2P, realist objections to the scope and demands associated with cosmopolitan criminal justice remain both relevant to, and manifest within, contemporary international relations. For example, whilst R2P has helped in principle to reconcile the tension between human rights and state sovereignty prevalent at the global constitutional level, in practice this tension continues to influence and, on occasion, supersede the international community’s broader commitment to the protection of human rights. In Libya, for example, the absence of a secondary international to protect was in part attributable to the wider concerns of China and Russia with preserving the territorial integrity of autonomous sovereign states.40 In Syria, meanwhile, the rejection of Security Council

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resolutions aimed at ending the political violence by China and Russia can be partially accounted for by the perception that intervention— military or otherwise—would encroach upon and violate the country’s sovereignty.41 Indeed, Russia has argued that any outside interference could provoke regional instability and thus undermine Syria’s position as the cornerstone of the Middle East security architecture.42 China, meanwhile, has affirmed the principle of non-intervention implicit under Article 2 of the UN Charter, articulating that the imposition of sanctions or the threat thereof would likely complicate the situation, rather than assist in resolving it.43 It is also important to emphasise that the international community’s failure to invoke the secondary international to protect in Libya— alongside its anaemic response to the ongoing atrocities in Syria—goes beyond the concerns of China and Russia with preserving the national sovereignty and territorial integrity of sovereign states. In Libya, the lack of consensus over the implementation of R2P’s conceptual and legal principles can be attributed in part to recalcitrance amongst UN member states—and, in particular, the USA—to the loss of troops in conflict situations. As will be explained in Chapter 6, this is evidenced by the presence of Remote Cosmopolitanism, a phenomenon whereby, despite the international community’s commitment to civilian protection and human security, intervention was predicated on a policy of risk aversion, increased moral distance and an extensive dependence on local proxies in the form of anti-government insurgents.44 In Syria, meanwhile, Russia has long-standing ties with the incumbent regime and vested economic and political interests in the country, the latter reflected in its involvement in natural gas extraction and the export of arms and defence equipment throughout the ongoing crisis.45 Alongside the prevailing tension between human rights and state sovereignty, therefore, the broader military, economic and political interests of UN member states also continue in practice to influence the measures adopted by the international community in response to large-scale human rights violations. Finally, although the protection of human rights was the primary objective of the international community in Libya (with intervention representing a genuine application of R2P’s conceptual and legal principles), regime change was still a direct consequence of the decision to implement the use of force and an intention of those responsible for executing the Security Council’s decisions in response to widespread human rights abuses. Indeed, its presence in Libya was to subsequently spill over

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into deliberations concerning Syria, in part accounting for the relative inaction of the UNSC in response to the conflict. Thus, and whilst R2P has reduced the possibility of human protection being used as a smokescreen for the pursuit of negative imperialist trends and, more specifically, the self-interested inclinations of powerful states, the doctrine has so far failed to offset concerns within the international community that it could be manipulated or abused in order to interfere in the domestic affairs of sovereign states under false humanitarian pretexts. In summary, the prevailing tension between global human rights and state sovereignty, the military, economic and political interests of powerful states and concerns over regime change have all exemplified the continuing presence and relevance of realist objections to the principle of cosmopolitan criminal justice, underlining how opposition to the scope and demands associated with this cosmopolitan ideal has yet to be subjugated at the global constitutional level. Furthermore, it is important to stress that the operationalisation of R2P’s legal and conceptual principles remains contingent upon a broad confluence of complex and overlapping contextual factors. These include the role of regional organisations, the international and domestic standing of political regimes and both the clarity of threat and short time frame for international action.46 Indeed, these dynamics were to play an integral role in the decision to intervene in Libya, whilst conversely helping to account for the international community’s failure to protect human rights in Syria. In Libya, for example, the involvement of regional organisations including the Peace and Security Council of the African Union, the Organisation of Islamic Co-operation and, in particular, the League of Arab States (LAS) was instrumental in the passing of SCR1973. The LAS, in particular, pressurised the UNSC to impose sanctions and intervene in order to protect Libya’s citizens from a regime perceived to have spiralled out of control,47 taking the unusual step of suspending Libya from the Arab League and calling on the UNSC to impose a no-fly zone and co-­operate with the Transitional National Council (TNC).48 At the same time, the role of the LAS in expediting intervention in Libya illustrates how regional organisations have increasingly emerged as ‘gatekeepers’, influencing which issues get debated within the UNSC, how such issues are framed and the range of possible Security Council responses.49 Indeed, Bellamy has argued that without the support of the African Union (AU) and LAS, Resolution 1973 would almost certainly not have passed through the Security Council.50 This is evidenced by the fact that both

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China and Russia expressed their support for the AU and LAS respectively as a determining factor in their decision to abstain.51 In the case of Syria, meanwhile, the LAS was much more hesitant to intervene, principally in view of the close political, economic and personal ties many of its members shared with the Assad regime.52 Lebanon, in particular, was influential in halting the movement towards tough international measures, a consequence of Hezbollah’s links with the Syrian government.53 In turn, the LAS was unwilling to provide a strong lead in the case of Syria, with the later decision to condemn Assad, expel Syria from the League and insist upon sending its monitors to Damascus not taken until November 2011.54 As a result, the Security Council— and, more specifically, China and Russia—were much less inclined to sanction resolutions against the Assad government.55 With regard to its international and domestic standing, meanwhile, the Gaddafi regime was widely distrusted across Africa and the Middle East.56 This was largely a result of its role in fuelling conflicts in Liberia, Sierra Leone and Chad, as well as the radical Popular Front for the Liberation of Palestine.57 Consequently, the Libyan government was left largely isolated, and when conflict broke out, support for Gaddafi’s violent response to the rebellion was negligible amongst neighbouring governments.58 On the domestic front, Gaddafi’s regime was also both strategically and militarily weak, underlined by its limited military resources, divided army and low levels of political support—particularly amongst Libya’s tribal communities59—alongside the gains made by the opposition in the east of the country.60 At the same time, the detached and fragile nature of the Libyan government was to provide a key element and motivational factor in the LAS’ subsequent decision to intervene, with its members having little to lose politically were Gaddafi to fall from power.61 In the case of Syria, even once the anti-government protests had begun, the regime was still perceived by its neighbours as a strong and stable political administration in the midst of a volatile region.62 Many Middle Eastern countries regarded Syria as an important trading partner, influential political force and essential strategic ally, re-affirmed by the hesitancy of the LAS to intervene despite the atrocities being committed by the Syrian government.63 Such alliances—particularly in relation to members of the LAS—have served as a strong disincentive to Security Council condemnation and action, particularly amongst countries such as Russia which, as articulated, holds vested economic and

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political interests in the Middle East region. Furthermore, the Assad regime is strategically and militarily strong, possessing considerable military resources, cohesive and loyal military command and security intelligence services and, in addition, retaining the support of a substantial proportion of the civilian population.64 Assad continues to enjoy strong domestic support from Alawites and the Christian community, whilst the large Sunni merchant class and business communities located in such cities as Damascus and Aleppo remain fearful of the power vacuum that would accompany the collapse of the Syrian government.65 There also remain deep sectarian divisions amongst opposition groups located within the National Coalition for Syrian Revolutionary and Opposition Forces and Syrian National Council66 which, unlike in Libya, were apparent from the outset,67 acting as a further hindrance to intervention. The declaration by Islamic State (IS) of the capital of its self-proclaimed caliphate in the city of Raqqa in June 2014, meanwhile, underlined the presence of complicated transborder dynamics and fluid political identities in Syria, testament to the complexity of the conflict and, more broadly, of responding to large-scale human rights crises within endemically weak and abusive states. In terms of the clarity of threat and short time frame for international action, finally, the crisis in Libya was to escalate rapidly, with the euphoria surrounding the protests (evidenced by the successes enjoyed by the rebels in Benghazi and Tobruk)68 quickly turning to anxiety in the light of the gains made by government forces.69 Gaddafi employed rhetoric that bore echoes of the 1994 Rwandan genocide, referring to the rebels as ‘cockroaches’70 and fuelling international fears that the citizens of Benghazi might face annihilation.71 Indeed, both the speed of the rebellion and the ensuing losses—which left the stronghold of Benghazi vulnerable to Gaddafi’s forces and their promise of retribution—left little time to try a further round of mediation as proposed by Russia, or a more ordered response as advocated by some bureaucrats within the UN.72 As a consequence, senior UN officials framed the problem as one of human protection almost from the outset, with the UN Secretariat (more specifically, the Special Advisers, High Commissioner for Human Rights and Secretary-General) playing a central role.73 In the case of Syria, however, no ‘imminent’ threat of harm to the population was immediately apparent. Whilst the government accused the protestors of having fallen under extremist and external influences—characterising the uprising as one of ‘armed gangs’—it combined its repression with

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promises of political and constitutional reform that evoked hope within protestors and the international community alike.74 Indeed, and controversially, some political commentators have argued that the Assad regime has responded with much less ferocity to the uprising in Syria.75 In summary, the role of regional organisations, the international and domestic standing of political regimes and both the clarity of threat and short time frame for international action all help to account in part for the decision to intervene in Libya, whilst at the same time contributing to the international community’s failure to systematically protect human rights in Syria. Their importance has underlined how the application of R2P remains dependent upon a broad range of context-specific factors, with such dynamics continuing to influence the decision-making and enforcement process in relation to the protection of vulnerable populations. Further to the prevailing tension between global human rights and state sovereignty, the military, political and economic inclinations of powerful states and wider concerns over regime change, therefore, the importance of context to the implementation of R2P’s conceptual and legal principles has served to undermine the doctrine’s locus and, in particular, relevance as a form of international criminal justice at the global constitutional level. At the same time, and with particular reference to Syria, the relationship between context and R2P has compounded the latter’s failure to adhere to the moral exigencies associated with a cosmopolitan approach to human protection.

Conclusion This chapter has critically assessed the relationship between R2P and both the distributive and criminal forms of cosmopolitan global justice. In the case of the former, R2P is intrinsically linked to the poverty and causation model of cosmopolitan distributive justice, alluding to the role of the global socio-economic realm in contributing to conditions of global poverty and inequality, whilst also providing cursory recommendations on how to address conflict-inducing behaviour by influential global actors. In this way, R2P has reinforced—albeit imperfectly—its relationship with cosmopolitan human protection. At the same time, and in tentatively bridging the gap between the poverty and causation model of distributive justice and cosmopolitan human protection, R2P has enhanced the veracity and credibility of the cosmopolitan typology as a contemporary approach to international relations theory, providing

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a normative and conceptual framework through which the latter’s failure to fulfil the demands associated with cosmopolitan distributive justice can, in theory, begin to be addressed. Furthermore, R2P has both established a relationship with, and strengthened the relevance of, the vision of cosmopolitan criminal justice intimately bound up with cosmopolitan human protection. As explained, the doctrine has come to constitute a form of international criminal justice, inculcating a residual duty on the international community to act in instances of genocide, war crimes, ethnic cleansing and crimes against humanity in order to remedy an injustice and protect people’s fundamental rights and interests. In addition, R2P has weakened opposition to the scope and demands associated with this cosmopolitan maxim rooted in the narratives of realism, liberalism and liberal-nationalism. More specifically, the doctrine has strengthened the recognition and institutionalisation of human rights and, at the same time, the presence of ethical considerations in any decision to intervene for human protection purposes; has begun to reconcile the tension between state sovereignty and global human rights; represents a conceptual development within international law created, institutionalised, re-affirmed and invoked by a majority of UN member states; and, finally, has weakened the presence of negative imperialist trends at the global constitutional level. R2P also champions the virtues of international responsibility in place of the prioritisation of well-ordered and self-sufficient communities, a just society or the role of co-nationals in advancing principles of egalitarian distributive justice endogenous to states, gives equal consideration to the rights and interests of all individuals and confers a residual responsibility on other states and the UN to intervene against an illiberal or illegitimate political regime in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. However, it must be emphasised that R2P continues to share a diminutive relationship with the poverty and causation model of distributive justice, whilst the doctrine has yet to fulfil the moral exigencies associated with cosmopolitan criminal justice. With regard to the former, this is characterised by R2P’s focus on the responsibility of states to address the root causes of conflict and, in addition, its ambiguity on the responsibility of the wider international community to rectify its role in perpetuating such causes. In the case of the latter, meanwhile, the prevailing tension between state sovereignty and global human rights, the military, political and economic interests of powerful states and wider concerns

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over regime change have all enunciated the prevalence of realist objections to the principle of cosmopolitan criminal justice. Furthermore, the operationalisation of R2P’s legal and conceptual principles remains contingent upon a broad confluence of complex and overlapping contextual factors, similarly undermining the doctrine’s locus and, in particular, relevance as a form of international criminal justice at the global constitutional level. At the same time, R2P’s shortcomings in relation to the maxims of cosmopolitan distributive and cosmopolitan criminal justice have served to reinforce the weak nature of its relationship with cosmopolitan human protection and, at the same time, its failure to adhere to the normative demands of this cosmopolitan typology.

Notes





1.  Garrett Brown and Ali Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), in particular pp. 9 and 12. 2. Ibid., p. 16 3. Ibid., p. 17 4. Whilst all three pillars are deemed to be of equal importance, this report stressed the value of prevention in its preamble. See Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2009). http://www.unrol.org/doc.aspx?d=2982 (accessed 3 September 2013). This view was also widely endorsed by the UN General Assembly (see Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 44). 5.  Ban Ki-moon, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ (UN, 2014). http:// responsibilitytoprotect.org/N1446379.pdf (accessed 25 June 2014), (paras. 28 and 30). 6. Ibid., (paras. 28 and 39–58). 7. Ibid., (paras. 28 and 59–69). 8.  Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2014). http://www.unrol.org/doc. aspx?d=2982 (accessed 3 September 2013), (para. 35). 9.  Ban Ki-moon, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ (UN, 2014). http:// responsibilitytoprotect.org/N1446379.pdf (accessed 25 June 2014), (para. 32).

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10.  Antonio Guterres, ‘Implementing the Responsibility to Protect: Accountability for Prevention’ (UN, 2017). http://www.globalr2p.org/ media/files/un-secretary-general-2017-report-on-r2p-en.pdf (accessed 27 February 2018). 11. See ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http://responsibilitytoprotect.org/ICISS%20Report.pdf (para. 100). 12.  Ban Ki-moon, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ (UN, 2014). http:// responsibilitytoprotect.org/N1446379.pdf (accessed 25 June 2014), (para. 26). 13. Ibid. 14. OHCHR, ‘Guiding Principles on Business and Human Rights: Implementing the UN’s Protect, Respect and Remedy Framework’ (UN, 2011). http://www.ohchr.org/Documents/Publications/ GuidingPrinciplesBusinessHR_EN.pdf (accessed 15 June 2017), (para. 53). 15. Ibid., (para. 59). 16.  Ban Ki-moon, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ (UN, 2014). http:// responsibilitytoprotect.org/N1446379.pdf (accessed 25 June 2014), (para. 26). 17. See Darrel Moellendorff, Cosmopolitan Justice (Oxford, Westview Press, 2002), p. 233. 18. Ibid., p. 104. 19. Jon Mandle, Global Justice: An Introduction (Cambridge, Polity Press, 2006), pp. 29–30. 20. Ibid., p. 29. 21. This idea was first articulated by Hans Morgenthau. For a summary, see Mandle, Global Justice: An Introduction (Cambridge, Polity Press, 2006), pp. 30–32. 22. Robert Gilpin, ‘A Realist Perspective on International Governance’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 238. 23. Jon Mandle, Global Justice: An Introduction (Cambridge, Polity Press, 2006), p. 30. 24.  See in particular Darrel Moellendorff, Cosmopolitan Justice (Oxford, Westview Press, 2002), p. 112. This argument is also put forward by Chandler in his critique of cosmopolitan human rights (David Chandler, ‘The Limits of Human Rights and Cosmopolitan Citizenship’, in

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Rethinking Human Rights: Critical Approaches to Human Rights, ed. David Chandler (Basingstoke, Palgrave Macmillan, 2002), pp. 132–33). 25. For further discussion, see in particular Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996), p. 212. 26. See Chapter 4. 27. John Rawls, The Law of Peoples (Harvard, Harvard University Press, 1999), in particular pp. 3–4 and 23–24. See also Thomas Nagel, ‘The Problem of Global Justice’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), pp. 397–99. 28.  See in particular Thomas Nagel, ‘The Problem of Global Justice’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), pp. 397–99. 29. John Rawls, The Law of Peoples (Harvard, Harvard University Press, 1999), pp. 37–38. See also Kok-Chor Tan, Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (Cambridge, Cambridge University Press, 2004), p. 65. 30. John Rawls, The Law of Peoples (Harvard, Harvard University Press, 1999), p. 37. See also Peter Singer, ‘Outsiders: Our Obligations to Those Beyond Our Borders’, in The Ethics of Assistance: Morality and the Distant Needy, ed. Deen Chatterjee (Cambridge, Cambridge University Press, 2004), pp. 26–27; Thomas Nagel, ‘The Problem of Global Justice’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), pp. 398–99; William Smith and Robert Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s College Law Journal, 15 (2004), p. 10; and Kok-Chor Tan, Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (Cambridge, Cambridge University Press, 2004), pp. 64–65. 31. Thomas Nagel, ‘The Problem of Global Justice’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), pp. 397–98. 32. Ibid., pp. 402–3. 33. Jon Mandle, Global Justice: An Introduction (Cambridge, Polity Press, 2006), p. 36. ‘Particularistic’ nationalists, meanwhile, theorise that a particular nation or people are valuable specifically from the moral point of view itself. 34. Ibid., p. 41. 35.  David Miller, ‘Cosmopolitanism’, in The Cosmopolitanism Reader, eds. Garrett Brown and David Held (Cambridge, Polity Press, 2010), pp. 377–93. 36. Ibid., pp. 390–91.

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37. Gareth Evans, ‘From Humanitarian Intervention to the Responsibility to Protect’ (International Crisis Group, 2006). http://www.crisisgroup. org/en/publication-type/speeches/2006/from-humanitarian-intervention-to-the-responsibility-to-protect.aspx (accessed 4 March 2013), (para. 4). 38. Jennifer Welsh, ‘Turning Words into Deeds? The Implementation of the Responsibility to Protect’. Global Responsibility to Protect, 1 (2010), p. 424. 39. Melissa T. Labonte, ‘Whose Responsibility to Protect? The Implications of Double Manifest Failure for Civilian Protection’. International Journal of Human Rights, 16 (2012), p. 989. 40.  See Hannah VanHoose, ‘Understanding the Russian Response to the Intervention in Libya’ (Center for American Progress, 2011). https:// www.americanprogress.org/issues/security/news/2011/04/12/9529/ understanding-the-russian-response-to-the-inter vention-in-libya/ (accessed 7 August 2014), (para. 3); Julian Borger, ‘Libya No-Fly Resolution Reveals Global Split in UN’ (The Guardian, 2011). http:// www.theguardian.com/world/2011/mar/18/libya-no-fly-resolution-split (also accessed 7 August 2014), (para. 10). 41. For a summary, see Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (paras. 51–56). 42. Ibid., (para. 45). 43. Ibid., (para. 56). 44. Jonathan Gilmore, The Cosmopolitan Military: Armed Forces and Human Security in the 21st Century (Basingstoke, Palgrave Macmillan, 2015), pp. 187–91. 45.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/files/ dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 99). 46. Other factors that lie outside the scope of this book include legal considerations, world opinion, perceived costs and social relations between states. The presence of these factors in any decision to—or indeed not to—intervene for human protection purposes is considered by Alex Bellamy in ‘The Responsibility to Protect: Added Value or Hot Air?’ Cooperation and Conflict, 48 (2013), p. 342; The Responsibility to Protect: the Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 119. 47.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 78).

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48. Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), pp. 289–90. 49. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 826. 50. Ibid., p. 843. Bellamy and Williams also emphasise the impact of the LAS on US foreign policy in Libya, with the latter playing an intrinsic role in persuading South Africa and Russia to ‘support’ the Resolution. 51.  Aidan Hehir, ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’. International Security, 38 (2013), p. 153. As will be returned to in Chapter 8, however, it is open to debate whether these organisations were themselves motivated by humanitarian concerns. 52.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 78). 53. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), pp. 848–49. 54.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 78). 55. Ibid. 56. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 842. 57. Ibid. 58.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 79). 59.  See Robert Pape, ‘When Duty Calls: A Pragmatic Standard of Humanitarian Intervention’. International Security, 37 (2012), p. 66. 60.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 91). 61. Ibid., (para. 79). 62. Ibid. 63. Ibid.

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64. Ibid., (para. 91). 65. Robert Pape, ‘When Duty Calls: A Pragmatic Standard of Humanitarian Intervention’. International Security, 37 (2012), p. 71. 66. BBC News, ‘Syria Crisis: Guide to Armed and Political Opposition’ (BBC, 2013).  http://www.bbc.co.uk/news/world-middle-east-15798218 (accessed 10 August 2014), (paras. 1–2). 67. Zifcak argues that there was a perception within the international community that sectarian violence was less likely to result from an armed intervention in Libya (para. 77), which may have acted as a further incentive for military action. 68. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 838. 69.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 75). 70. Alex Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics and International Affairs, 25 (2011), p. 265. 71.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 75). 72. Alex Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics and International Affairs, 25 (2011), p. 266. 73. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 845. 74.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012) http://www.law.unimelb.edu.au/files/ dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 75). 75.  See in particular See Robert Pape, ‘When Duty Calls: A Pragmatic Standard of Humanitarian Intervention’. International Security, 37 (2012), p. 70. This is of course highly contentious, particularly given that latest estimates chart the number of deaths resulting from the conflict at over 300,000, whilst millions more have been displaced (see Amnesty International, ‘Syria 2016–2017: Annual Report’ (Amnesty International, 2017). https://www.amnesty.org/en/countries/middle-east-and-northafrica/syria/report-syria/ (accessed 10 September 2017), (para. 1)).

CHAPTER 6

The Responsibility to Protect and Habermas’ Theory of Constitutionalisation with a ‘Cosmopolitan Purpose’ This chapter will assess the relationship between R2P and Habermas’ constitutional cosmopolitan approach. It will argue that although the doctrine fails to inculcate a legally binding obligation on UN member states to act in the event of genocide, war crimes, ethnic cleansing and crimes against humanity, and widespread disagreement exists over the implementation of the doctrine’s conceptual and legal principles, R2P does add legal value. For example, the doctrine is part of the establishment of a ‘new’ hierarchy of law in which states have agreed to limit their sovereign rights should they fail to protect their populations in threshold-crossing situations, whilst for the first time establishing a clear jurisdictional relationship between the authority of the international community as exercised through the UN in instances of egregious human rights violations, and the authority of sovereigns. In addition, R2P is a novel construct that uses the pre-existing legal principles of multi-level governance and solidarity as ‘building blocks’ for a new international order. Alongside its theoretical connotations, progress under R2P has also been evidenced in practice, with the position the doctrine occupies within Martha Finnemore and Kathryn Sikkink’s three-stage normative ‘life cycle’ model consolidating its status as an emerging constitutional norm within international law. Created, institutionalised, and subsequently re-affirmed by a ‘critical mass’ of UN member states, and as will be explained, the doctrine has been continually invoked in relation © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_6

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to a number of post-Cold War humanitarian crises. At the same time, the doctrine’s continued invocation has helped to enunciate the sense of ‘norm-building’1 manifest within the UN and, in particular, the proximity of the doctrine to the norm internalisation stage of Finnemore and Sikkink’s normative life-cycle model. Moreover, the lasting application of R2P by UN member states is both symptomatic of its role in shaping the international context in which atrocity crimes are committed and, relatedly, the increased willingness of the international community to respond to gross human rights violations. Given the importance of the will and compliance of powerful states to the protection of vulnerable populations, the chapter will argue that R2P’s incremental internalisation and implementation has helped to further bridge the gap between the UN’s global normative commitment to human rights and the weakness of its enforcement mechanisms. Consequently, the doctrine has come to constitute an additional step in the potential evolution of a customary international law concerned with the global protection of human rights in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. Through its status as an emerging constitutional norm, the chapter will contend that R2P has, both in theory and in practice, strengthened the claim that the UN embodies the foundations of a weak yet emerging global constitutional order resembling something analogous to a legally constituted political community of states and citizens, in the process tacitly extending Habermas’ constitutional cosmopolitan approach. At the same time, and taking into account the doctrine’s nexus with cosmopolitan human protection, R2P has come to provide a platform for the constitutionalisation and grounding of cosmopolitan ethical norms, helping to engender a sense of optimism surrounding the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

The Responsibility to Protect and Habermas’ Theory of Constitutionalisation with a ‘Cosmopolitan Purpose’: A Critical Appraisal As outlined in Chapter 3, Habermas advocates the constitutionalisation of international law under the aegis of constitutional authorities specialised in securing peace and implementing human rights worldwide,2 in turn expediting the creation of a legally constituted global political

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community of states and—through the institutionalisation of cosmopolitan ‘human’ rights—their citizens. In the process, such authorities will come to provide the foundations of a globalised and eventually cosmopolitan legal order. Crucially, and as explained, the UN can be seen as potentially symptomatic of the evolution from proto-constitutional legal tenets to the supranational institutions indicative of such a cosmopolitan order.3 More specifically, the UN Charter provides the basis of a weak yet fledgling global constitutional order resembling something analogous to a legally constituted community of states and their citizens. This is evidenced through the collective duty conferred on the international community—and, in particular, the UNSC’s permanent member states— to promote international peace and security, the specific provisions and expectations generated in relation to this responsibility and the protection afforded to all of the UN’s member states, constitutional tenets that have been increasingly extended to the sphere of human rights in the post-Cold War period. Through such normative innovations and legally binding commitments and, concomitantly, the gradual recognition and institutionalisation of individual human rights at the global constitutional level, the UN has, both in theory and in practice, offered a prospective ‘stepping stone’ to the construction of a global legal identity and form of cosmopolitan citizenship commensurate with Habermas’ vision of constitutional patriotism. As a consequence, the UN has come to provide a potential—albeit incomplete—blueprint for the fulfilment of Habermas’ cosmopolitan legal narrative. Whilst ubiquitous debate surrounds R2P’s legal veracity—more precisely, whether the doctrine embodies a hard and fast legal obligation, a political concept, soft law or an emerging legal norm4—R2P represents an established and regulative hard norm with regard to the responsibilities conferred on the host state and, crucially, an emerging constitutive norm—and budding legal principle5—in relation to the duties inculcated on other states and the UN.6 Before elaborating further, it is important to first clarify what is meant by a ‘norm’. By definition, a norm constitutes a standard of appropriate or proper behaviour for actors with a given identity,7 shaping both their preferences and their identities.8 Furthermore, a norm represents a rule or statement that tells agents (such as individuals or states) what they should in order to achieve a set of material goals,9 at the same time acting as a ‘guidance device’ designed to simplify choices.10 Participants—people—construct or respond to rules, in the belief that they will help them to realise their intended

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goals. In addition, norms frequently come to form stable and recognisable patterns of rules and related practices in the shape of institutions,11 including international law and international organisations. These institutions communicate, administer, interpret, enforce and legitimise rules,12 turning their participants into agents and constituting an environment within which individuals and states can conduct themselves.13 With regard to R2P’s status as an established and regulative norm, this is evidenced by the doctrine’s institutional foundations within existing international and international humanitarian law. For example, the 1948 Genocide Convention outlines states’ obligations towards the prevention of genocide and makes the perpetration of such an act punishable by law.14 In short, the Convention embodies positive duties to protect persons from inhuman acts committed by rulers, public officials and private actors, in part explicitly obliging states to prevent such acts beforehand.15 Furthermore, the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICSECR), adopted by the UN in 1966, impose legally binding obligations upon state parties to protect human rights.16 Whilst not referring explicitly to acts of genocide, war crimes, ethnic cleansing and crimes against humanity, these covenants ensconce in law the right to life, freedom from torture and inhumane treatment, freedom of thought, expression and religion and the right to attain the highest possible standard of physical and mental health.17 These rights subsequently fall within the scope of the threshold-crossing typologies propagated under R2P. Moreover, and under the preamble contained within the UN Charter, each state is obliged to reaffirm its faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women.18 The ‘modification’ of the existing principles of international law that took place under the aegis of the UN in the post-Cold War period, meanwhile, can be seen as testament to the consequences of the state in failing to prevent acts of ethnic cleansing and crimes against humanity. In summary, R2P is amalgamated with the prohibition on specific inhumane actions (more specifically genocide, war crimes, ethnic cleansing and crimes against humanity) rooted in the Genocide Convention and implicit under the terms of the ICCPR, ICSECR and, most importantly, the UN Charter. These institutions can be understood to have turned states into ‘agents’ in order to achieve the common goal of protecting individual human rights. As discussed in Chapter 4, R2P places a

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primary responsibility on each individual state to protect its populations from acts of genocide, war crimes, ethnic cleansing and crimes against humanity,19 prohibiting the perpetration of such acts by rulers, public officials and private actors. In addition, the state has the responsibility to prevent such crimes, including their incitement, through appropriate and necessary means.20 In this way, and whilst stopping short of inculcating an obligation on individual states to protect their populations, R2P reflects a political standard in respect to the duties of the host state, with the doctrine’s foundations in legally and institutionally binding global commitments underscoring its status as an established and regulative hard norm within international law. Moving beyond existing legal mechanisms and the responsibilities inculcated on individual states to protect their populations, R2P also represents an emerging constitutive norm and budding international legal principle in view of the duties imparted on the wider international community. It is important to emphasise that R2P remains primarily a conceptual innovation,21 whilst the doctrine has yet to acquire the status of an established constitutional principle. This is in view of its failure to confer a legally binding and collective obligation on UN member states to act in the event of genocide, war crimes, ethnic cleansing and crimes against humanity. Importantly, however, R2P does still add legal value. For example, the doctrine is part of the creation of a ‘new’ hierarchy of law—more specifically, an emerging international value system—in which states have agreed to limit their sovereign rights should they fail to protect their populations in threshold-crossing situations.22 As Garrett Brown and Blagovesta Tacheva explain, R2P represents and seeks to establish the characteristics of a constitutionalised global legal order through advancing the primacy of international law over the law of states and the effect of its provisions, which in turn are directly applicable to states and their administrations.23 In addition, R2P is constitutionalised in the sense that it has, for the first time, established a clear jurisdictional relationship between the authority of the international community exercised through the UN and the authority of sovereigns.24 This is a result of the doctrine specifying that state sovereignty can be surrendered if states manifestly fail to protect their populations, in effect superseding prior legal relationships between the state and the wider international community.25 Moreover, R2P is a novel construct that uses pre-existing legal principles as building blocks for a new international order.26 These principles

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include the concept of multi-level governance, which embraces the notion that competences and obligations should be allocated to the level of governance on which such functions as the protection of individual human rights can effectively be performed.27 This idea is apt to justify the allocation of a new residual responsibility to actors—namely states within the international community—that lies ‘above’ the territorial state in threshold-crossing situations.28 Furthermore, such extant legal principles also include the constitutional norm of solidarity. In short, solidarity operates as an instrument to achieve common ethical and moral29 objectives—such as human rights—through the imposition of common rights and obligations.30 This principle has already been integrated into norms of ‘positive’ law, with its basis in the international community of liberal states and the growing importance of community interests in international law.31 However, prior to the codification of R2P, the highest degree of constitutionalisation—and ethical articulation32—of the principle of solidarity could be found in the UN Charter provisions on the maintenance of international peace and security,33 alongside the obligation to ensure respect contained within international humanitarian law.34 Subsequently, the doctrine has come to represent the first major articulation on a global level of the constitutional principle of solidarity.35 This is in view of its specification of the conditions of action for protecting shared values which are of a human rights nature.36 Put another way, through placing a subsidiary duty and collective responsibility on the wider international community to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity—a principle seen even by its critics as potentially innovative37—R2P has, in theory, helped to give legal expression to the international principle of solidarity.38 Indeed, for Karol Wellens, the doctrine’s codification and subsequent invocation by UN member states have come to represent the penultimate stage in the irreversible humanisation of international law.39 In summary, R2P constitutes a part of a ‘new’ hierarchy of law in which states have agreed to limit their sovereign rights; establishes a clear jurisdictional relationship between the authority of the international community and the authority of individual states in instances of genocide, war crimes, ethnic cleansing and crimes against humanity; and, finally, embodies a novel construct that uses the pre-existing legal principles of multi-level governance and solidarity as building blocks for a new international order. Consequently, and further to existing forms

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of international and international humanitarian law, R2P has, in theory, come to represent a stable and recognisable pattern of rules and related practices—an institution—which has turned both states and the wider international community into agents in pursuit of the common goals of international security and, in particular, the protection of global human rights. This, in turn, helps to account for R2P’s status as a nascent international legal principle and emerging constitutive norm within international law. At the same time, the doctrine has further encapsulated how the collective international responsibility to promote international peace and security under the auspices of the UN has been increasingly extended to the protection of human rights in the post-Cold War period, strengthening the recognition and institutionalisation of individual human rights at the global constitutional level. Relatedly, R2P’s locus as an emerging constitutional principle within international law has helped to begin to bridge the lacuna manifest between the UN’s normative commitment to global human rights and the weakness of its enforcement mechanisms outlined in Chapter 3. As a consequence, the doctrine has tentatively advanced Habermas’ constitutional cosmopolitan approach. Thus, R2P has come to constitute a prominent institution of international human rights enforcement that has strengthened the claim that the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and, most importantly, their citizens. Given the doctrine’s nexus with cosmopolitan human protection (in particular, the principles of collective responsibility, conditional state sovereignty, cosmopolitan criminal justice and, more broadly, human security), R2P has, at the same time, provided a platform for the constitutionalisation and grounding of such cosmopolitan ethical norms, helping to engender a sense of enthusiasm surrounding the evolution towards a more cosmopolitan approach to human protection in the postCold War period. Whilst its theoretical connotations have underpinned its status as a novel and nascent international legal principle, it is also important to emphasise that progress under R2P has been evidenced in practice. This is reflected in the position the doctrine occupies within Martha Finnemore and Kathryn Sikkink’s normative ‘life cycle’ model,40 which has, in turn, consolidated R2P’s locus as an emerging constitutive norm within international law. The model of norm dynamics put forward by Finnemore and Sikkink is characterised by three stages, the first of which

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is norm emergence. This stage of the process is, as Finnemore and Sikkink explain, linked to the role of ‘norm entrepreneurs’ who actively build norms, calling to attention issues through using language that names, interprets and dramatises them.41 In the case of R2P, Canada was the doctrine’s main advocate, playing a prominent role in establishing ICISS in 2001.42 In addition, Canada was instrumental in both persuading the UN High-Level Panel to endorse R2P and encouraging former UN Secretary-General Kofi Annan to do likewise in his response.43 Annan was similarly integral to the adoption of R2P, arguing that the credibility of the UN and the principles of the Charter required clear guidance following events in Rwanda and Srebrenica.44 Annan put in place the HighLevel Panel that approved the doctrine in 2004 which, alongside its place in his wider programme of UN reform, paved the way for R2P’s inclusion within the 2005 World Summit declaration.45 It is also important to emphasise that R2P has emerged within a broader ‘normative architecture’46 and interventionist discourse of human rights protection, whilst the doctrine has also been institutionalised at the international level.47 In these ways, therefore, R2P has fulfilled the first stage of Finnemore and Sikkink’s normative life-cycle model, embodying a norm constructed and actively propagated by state and non-state actors with an ideational commitment48 to the protection of vulnerable populations. Crucially, R2P can also be understood to have progressed into the second stage of the norm life-cycle process—norm cascade.49 This stage of broad acceptance is achieved when a critical mass of states—namely at least a third of the total states in the international system—is persuaded to become norm leaders and adopt new norms, culminating in the threshold or ‘tipping point’ between norm emergence and norm cascade being reached.50 Furthermore, this stage is characterised by a dynamic of imitation, as norm leaders attempt to socialise other states to become norm followers.51 With regard to R2P, the doctrine reflects a codified52 international legal principle, endorsed in 2005 and subsequently reaffirmed by 180 of the 193 members of the UN General Assembly in 2009.53 At the same time, R2P has—alongside the ICC—become the most prominent institution of international human rights enforcement.54 Thus, one could argue that R2P has reached its ‘tipping point’ and moved into the second stage of norm cascade.55 Furthermore, there is evidence to indicate that the doctrine has become incrementally internalised within the UN,56 with internalisation representing the final stage of

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the norm life-cycle process.57 This is illustrated by the doctrine’s invocation in response to a number of human rights crises, testament to its role in ‘shaping’ the international context in which these atrocities are committed.58 Put simply, the language and rhetoric axiomatic of R2P have been increasingly adopted by the international community (and, in particular, UN member states) in response to the manifestation or ‘imminent’59 perpetration of systematic and nefarious human rights abuses, with the doctrine prevalent in the foreign policies that these states have pursued. Consequently, R2P has the potential to evolve into a form of customary international law, by definition established by states engaging in a repetitive and ongoing practice so far as to be regarded a compulsory rule.60 There have been a number of instances in which the UN has made reference to R2P in response to gross violations of human rights and international humanitarian law. Indeed, the doctrine has been invoked in over 60 resolutions since 2006.61 For example, the R2P ‘lens’ was used to guide the international community’s response to post-election violence in Kenya in 2007.62 In this instance, and whilst the doctrine played only an implicit63 role, R2P provided both a discursive framework for international diplomatic involvement and a political tool used to facilitate international pressure on the Kenyan government,64 following the widely contested re-election of President Mwai Kibaki.65 The doctrine was also invoked directly following the actions of former President Laurent Gbagbo in Cote d’Ivoire in 2011.66 Furthermore, the misapplication of R2P in the cases of Myanmar and South Ossetia has paradoxically served to highlight how the doctrine has increasingly become part of the diplomatic language of powerful states, more specifically France and Russia.67 Moreover, R2P was re-affirmed by the UNSC under Resolutions 1674 (2006), 63/308 (2009)68 and 1894 (2009)69 and, as emphasised previously, by 180 of the General Assembly’s 193 members following the release of Ban Ki-moon’s 2009 report Implementing the Responsibility to Protect.70 Finally, the doctrine has provided a key aspect of the diplomatic language invoked by the international community in response to the continuing atrocities in Syria.71 The most successful example of R2P in action, however, can be found in the shape of the UN-sanctioned, NATO-led mission Operation Unified Protector conducted in Libya in 2011 which, as will be argued in Chapter 7, represented a genuine application of the doctrine’s

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conceptual and legal principles. Whilst critics such as Aidan Hehir have questioned the ‘novelty’ of the military intervention in Libya,72 further to the sentiments of Jon Western, Joshua Goldstein, Ivo Daalder and James Stavridis, Security Council Resolution (SCR) 1973 can be seen to constitute an unprecedented collective determination to halt a mass atrocity.73 More specifically, it can be contextualised within the new politics of protection that has emerged in the twenty-first century,74 evidenced by the fact that Libya represents the first time in history that the UNSC has authorised the use of Chapter VII measures against a functioning member state—without its consent—for human protection purposes.75 For example, the French-led Operation Turquoise endorsed under SCR 929 in Rwanda in 1994 enjoyed the consent of the interim government, whilst SCR 794, SCR 814 and SCR 837 sanctioned in Somalia in 1993 were authorised in the absence of a centralised government, as opposed to against one.76 More recently, in Haiti, the Democratic Republic of Congo (DRC), Sudan and Cote d’Ivoire, the Security Council has authorised the use of ‘all necessary measures’ to protect civilians under Chapter VII of the UN Charter, however these peace operations have all operated with the consent of the host state.77 It is important to reiterate at this point that the operationalisation of R2P’s legal and conceptual principles in Libya was interspersed with a broad confluence of contextual factors. As explained in Chapter 5, these included the involvement of regional organisations such as the LAS, the international and domestic standing of the Gaddafi regime and both the clarity of threat and short time frame for international action. Moreover, at the time of writing there remains widespread disagreement amongst UN member states over the implementation of R2P’s conceptual and, in particular, legal principles in the event of genocide, war crimes, ethnic cleansing and crimes against humanity. This is illustrated by the fact the doctrine has yet to be explicitly referred to in the context of the secondary international responsibility to protect in instances where state authorities fail to protect their populations.78 In the case of Libya, this can be attributed in part to both the prevailing concerns of Russia and China with preserving the territorial integrity of autonomous sovereign states79 and, addition, antipathy amongst UN member states to the loss of troops in conflict situations. As Jennifer Welsh explains, it is clear that the idea of a secondary international responsibility to protect is still contested by some members of the Security Council as an appropriate rationale for military action.80 Indeed, this has been exacerbated

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in light of R2P’s nexus with regime change in Libya, a concern that has subsequently spilt over into deliberations surrounding Syria and helps to account in part for the relative inaction of the UNSC in response to the conflict.81 Furthermore, and whilst this monograph is not concerned with a robust and comprehensive assessment of Operation Unified Protector, it should be stressed that widespread contention surrounds the success of the NATO-led mission in Libya which, in turn, has further served to highlight the shortcomings of R2P. For example, NATO’s use of air-delivered Precision-Guided Munitions (PGMs) was to undermine the UN’s civilian protection mandate, with a number of Libyan civilians killed during the course of the 9700 NATO strike sorties over Libya.82 Relatedly, the use of PGMs is testament to the continuing phenomenon of virtual war.83 A detached form of risk-transfer warfighting84 dating back to the 1970s, virtual war is concerned with making conflict as bloodless, riskfree and precise as possible.85 Indeed, this phenomenon was to characterise the international community’s response to the conflict in Kosovo in 1999, with a high-altitude bombardment strategy employed in the form of strikes against designated Serbian targets.86 For Jonathan Gilmore, the response of the international community to the atrocities committed in Libya displayed a series of characteristics that can be loosely defined as Remote Cosmopolitanism. Despite a normative ethical commitment to civilian protection and human security, and as emphasised previously, intervention was predicated on a policy of risk aversion and increased moral distance (involving minimal ground-level force commitment) and an extensive dependence on local proxies in the form of anti-government insurgents.87 At the same time, this approach can be seen as a glowing indictment of the continued antipathy of UN member states to the loss of troops in conflict situations, with the USA, in particular, hesitant to intervene in Libya in the light of the catastrophic events in Somalia in 1993.88 Indeed, without the support of the LAS, it is unlikely that the USA would even have consented to the use of force under SCR 1973, with the influence exerted by the organisation helping to offset the broader concerns of the Obama administration with military overstretch, budgetary implications, the possibility of mission creep and, again, the potential for military casualties.89 Such reticence to intervene militarily also helps to account for the decision taken by the USA to support than actively lead the military action undertaken by French and other NATO forces.90

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Alongside the presence and implications of virtual war, concerns have also been raised over the longer-term consequences of the NATO-led operation in Libya. This is primarily in view of the continued lawlessness and violence perpetrated by the country’s tribal-based militias— some with links to Al-Qaeda—which have included reprisals against black African migrants, torture and ‘extra-judicial detention’91 and culminated in the assassination of the Libyan deputy industry minister Hassan al-Droui on 12 January 2014.92 In addition, military intervention under the auspices of SCR 1973 could be seen to have contributed to state collapse in Libya. This is evidenced by the recent appearance of two competing parliaments in the form of the UN-backed unity government in Tripoli and an administration based in Tobruk supported by military strongman Khalifa Haftar,93 the emergence and presence of ISIS in Gaddafi’s former hometown of Sirte and the massive refugee flows taking place throughout Europe.94 In summary, both the practice of Remote Cosmopolitanism and the long-term implications of the NATO-led operation have acted to qualify the efficacy of the military intervention undertaken in Libya. At the same time, the failings of Operation Unified Protector have served to reinforce the limitations of R2P. For example, the ideology of virtual war and its relationship with the Libyan crisis has re-affirmed how states continue to possess a monopoly over the use of military force for human protection purposes, further demonstrating how the doctrine has yet to systematically bridge the gap between the UN’s normative commitment to human rights and the weakness of its enforcement mechanisms. In addition, the collapse of the Libyan state, the actions of insurgents and religious extremists and the ensuing refugee crisis have all encapsulated the complexity of modern conflict and, subsequently, of responding to human rights crises within endemically weak and abusive states. This is a detriment that R2P has, both in theory and in practice, thus far failed to acknowledge and address.95 The conduct and consequences of the NATO-led operation in Libya have, then, prompted further questions concerning both the theory and practice of R2P. The doctrine has yet to adapt to the complexities associated with human protection, whilst the phenomenon of Remote Cosmopolitanism and its presence in Libya has further characterised how states continue to monopolise the enforcement process in respect to the protection of vulnerable populations. Furthermore, and as discussed, there remains a lack of consensus amongst UN member states

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over the implementation of R2P, illustrated by the fact the doctrine was not explicitly invoked in relation to the secondary international responsibility to protect in Libya and, in addition, compounded by the role played by a series of context-specific dynamics in shaping the outcome of the conflict. Thus, and of particular relevance to this book, it must be remembered that R2P has yet to be fully internalised and concomitantly to reach a ‘tipping point’ between the stages of norm cascade and norm internalisation. This is reiterated by the fact that the doctrine has so far failed to acquire a ‘taken for granted’ quality and subsequently remains a matter of broad international debate.96 Indeed, the absence of international consensus over the implementation of R2P’s conceptual and legal principles has encapsulated how, in practice, the doctrine remains a weak emerging constitutive norm within international law. However, and as will be elaborated upon in Chapter 7, the NATOled mission in Libya was, in the short term, a success, affording protection to tens of thousands of Libyan civilians.97 Furthermore, despite the occurrence of regime change and its subsequent implications for the conflict in Syria, military intervention in Libya has not sounded R2P’s death knell.98 Indeed, according to Hehir and Pattison, the Arab Spring appears to have made R2P even more important for its relevance for debates not simply about humanitarian intervention, but also the prevention of mass atrocities more generally.99 The UN has constructively applied the doctrine post-Libya in Yemen,100 the Central African Republic (CAR),101 Mali,102 The Democratic Republic of Congo (DRC)103 and South Sudan.104 Moreover, R2P continues to garner widespread international attention in view of the US-led Operation Inherent Resolve, undertaken in response to the actions of Islamic State (IS) in Syria, Iraq and, more recently, Libya. IS has been accused of committing ‘genocide’105 and ‘war crimes’106 against Yazidis, Christians and Shia Muslims in Syria and Iraq, transgressions that fall under the ambit of potential R2P implementations. Furthermore, whilst Operation Inherent Resolve was initiated in response to a perceived threat to US national interests107 (with French, Russian and UK air strikes against jihadist militants in Syria similarly legitimated on security grounds),108 the coalition offensive against IS has, in part, been motivated by the human protection goals intimately bound up with R2P. For example, military action in Iraq was fuelled by the danger posed to the individual rights of people,109 whilst US airstrikes in Kobane in Syria made a

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direct contribution to the protection of populations by helping to protect Kurdish citizens from systematic abuses of human rights.110 So, R2P remains relevant to contemporary international relations and, crucially, continues to be invoked by the international community in response to egregious human rights violations. It is Operation Unified Protector in Libya, in particular, which has underlined the importance of the doctrine’s conceptual and legal principles and, at the same time, encapsulated how these principles have been gradually internalised and used to shape the foreign policies that states have pursued in response to gross violations of human rights and international humanitarian law. Although yet to be explicitly referred to in the context of the secondary international responsibility to protect, one could also argue the relationship between Libya and R2P is testament to the fact that humanitarian intervention is no longer dependent upon a ‘modification’ to the existing principle of non-intervention contained within the UN, with the doctrine coming to challenge established non-intervention norms embedded in international law. Moreover, in meeting the relevant watermark and thresholds for military action provided for under R2P (with the conflict constituting a ‘war crime’, ‘crime against humanity’ and even ‘genocide’111 under the rubric of the doctrine),112 Operation Unified Protector has helped to clarify the scope of a human rights exception to existing international law. In summary, the relationship between R2P and Libya, alongside the doctrine’s continued application by UN member states, have helped to enunciate the sense of ‘norm-building’113 manifest within the UN and, furthermore, the proximity of the doctrine to the norm internalisation stage of Finnemore and Sikkink’s normative life-cycle model, with the doctrine coming to occupy a space at the high end of the norm cascade spectrum. At the same time, the continued invocation of R2P is symptomatic of its role in shaping the international context in which such crimes are committed and, relatedly, the increased willingness of the international community to respond to human rights violations within endemically weak and abusive states. As a consequence, and given the importance of the will and compliance of powerful states to the protection of vulnerable populations, R2P’s incremental internationalisation and implementation has, similarly to its locus as a new international legal principle, further helped to bridge the gap between the UN’s global normative commitment to human rights and the weakness of its enforcement mechanisms. In turn, the doctrine’s continued invocation by UN

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member states has come to constitute an additional ‘step’ in the potential evolution of a customary international law concerned with the protection of global human rights in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. Put another way, R2P has the potential to evolve into an established constitutional norm, transcending its current status as a generally observed rule of behaviour to a rule for behaviour for its agents.114 In practice, then, R2P has further strengthened the claim that the UN embodies the foundations of a weak yet emerging global constitutional order resembling something analogous to a legally constituted political community of states and their citizens. When once again assessed within the context of its relationship with cosmopolitan human protection (in particular, the maxims of cosmopolitan criminal justice, the provision of delineated and limited thresholds for intervention and, more broadly, human emancipation), R2P has provided a further budding platform for the constitutionalisation and grounding of such cosmopolitan ethical norms, helping once more to generate a sense of optimism over the transition towards a more cosmopolitan approach to human protection in the post-Cold War period.

Conclusion This chapter has argued that R2P constitutes an established and regulative hard norm with regard to the responsibilities conferred on the host state. This is evidenced through the doctrine’s coalescence with the prohibition on specific inhumane actions rooted in the Genocide Convention and implicit under the ICCPR, ICSECR and, importantly, the UN Charter. These institutions have, as discussed, turned states into ‘agents’ in the pursuit of the common goal of protecting individual human rights. Furthermore, R2P has come to reflect a budding international legal principle in view of the residual duties conferred on the wider international community. The doctrine is part of the establishment of a ‘new’ hierarchy of law in which, in theory, states have agreed to limit their sovereign rights should they fail to protect their populations in threshold-crossing situations. In addition, R2P has established a clear jurisdictional relationship between the authority of the international community exercised through the UN in instances of gross human rights violations and the authority of sovereigns. Finally, R2P is a novel construct that uses the pre-existing legal principles of multi-level governance

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and solidarity as building blocks for the establishment of a new international order. This chapter has also articulated that alongside its status as a novel and nascent international legal principle, R2P’s standing as an emerging constitutional norm within international law has been consolidated by the space the doctrine occupies at the high end of the norm cascade spectrum. As discussed, the language and rhetoric axiomatic of the doctrine have been created, institutionalised and, most importantly, increasingly adopted by the international community (and, in particular, UN member states) in response to the manifestation or imminent perpetration of systematic and nefarious human rights abuses. These include during the conflicts in Libya—with military intervention subsequently endorsed under the flag of R2P—Cote d’Ivoire, Yemen, the Central African Republic (CAR), Mali, The Democratic Republic of Congo (DRC) and South Sudan. At the same time, the continued invocation of R2P is symptomatic of its role in shaping the international context in which such crimes are committed and, relatedly, the increased willingness of the international community to respond to human rights violations within endemically weak and abusive states. Given the importance of the will and compliance of powerful states to the protection of vulnerable populations, R2P’s gradual internationalisation and implementation by UN member states has, similarly to its locus as a new international legal principle, further helped to bridge the gap between the UN’s global normative commitment to human rights and the weakness of its enforcement mechanisms. Consequently, the doctrine’s lasting application has come to constitute an additional ‘step’ in the potential evolution of a customary international law concerned with the protection of global human rights in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. This chapter has acknowledged the theoretical and empirical limitations of R2P. For example, the doctrine fails to place a legally binding obligation on UN member states to act in the event of genocide, war crimes, ethnic cleansing and crimes against humanity, whilst it has yet to adapt to the complexities associated with human protection, underlined by the long-term implications of military intervention in Libya. In addition, there remains a lack of consensus amongst UN member states over the implementation of R2P, illustrated by the absence of a secondary international responsibility to protect in Libya, exacerbated by the occurrence of regime change and compounded by the role played by a broad confluence of contextual factors in shaping the outcome of the conflict.

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The phenomenon of Remote Cosmopolitanism, meanwhile, has further characterised how states continue to monopolise the enforcement process in respect to the protection of vulnerable populations. However, R2P does add legal value, whilst the doctrine remains relevant to contemporary international relations and, crucially, continues to be invoked by the international community in the event of systematic human rights violations. Subsequently, R2P has come to embody an emerging constitutional principle within international law which, both in theory and in practice, has strengthened the claim that the UN reflects the foundations of a nascent global constitutional order resembling something analogous to a legally constituted political community of states and citizens, in the process tacitly extending Habermas’ constitutional cosmopolitan approach. Taking into account the doctrine’s nexus with the global ethics underpinning a cosmopolitan approach to human protection, R2P has come to provide a platform for the constitutionalisation and grounding of cosmopolitan ethical norms, helping to engender a sense of optimism over the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

Notes

1. See Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 71. 2. Jürgen Habermas, Between Naturalism and Religion (Cambridge, Polity Press, 2008), p. 332. 3. Jürgen Habermas, The Divided West (Cambridge, Polity Press, 2006), p. 133. 4.  See Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), p. 7. 5. Ibid., p. 10. 6. Ibid., p. 12. 7.  See Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), p. 891. 8.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 358. 9.  Nicholas Greenwood Onuf, Making Sense, Making Worlds: Constructivism in Social Theory and International Relations (Abingdon, Routledge, 2013), p. 4.

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10. With reference to Friedrich V. Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge, Cambridge University Press, 1991). 11.  Nicholas Greenwood Onuf, Making Sense, Making Worlds: Constructivism in Social Theory and International Relations (Abingdon, Routledge, 2013), p. 5. 12. See Hedley Bull, ‘Society and Anarchy in International Relations’, in Diplomatic Investigations, eds. Herbert Butterfield and Martin Wight (Cambridge, MA, Harvard University Press, 1968), pp. 55–57. 13.  Nicholas Greenwood Onuf, Making Sense, Making Worlds: Constructivism in Social Theory and International Relations (Abingdon, Routledge, 2013), p. 5. 14. Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 29. Relatedly, the legal stature of the Genocide Convention has been affirmed by the 2007 International Court of Justice (ICJ) judgement in the case of Bosnia versus Serbia. This judgement found Serbia responsible for failing to both prevent the genocide and punish the perpetrators, with the ICJ subsequently reiterating the obligation of all states to prevent acts of genocide. See William Bain, ‘Responsibility and Obligation in the Responsibility to Protect’. Review of International Studies, 36 (2011), pp. 15–32. 15. The United Nations, ‘Convention on the Prevention and Punishment of the Crime of Genocide’ (UN, 1948). https://treaties.un.org/doc/ Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf (accessed 13 September 2013), (para. 4). 16. Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 29. 17. See Office of the High Commissioner for Human Rights, ‘International Covenant on Civil and Political Rights’ (UN, 1966). http://www. ohchr.org/en/professionalinterest/pages/ccpr.aspx (accessed 27 July 2015), (paras. 1–7); Office of the High Commissioner for Human Rights, ‘International Covenant on Economic, Social and Cultural Rights’ (UN, 1966). http://www.ohchr.org/EN/ProfessionalInterest/ Pages/CESCR.aspx (also accessed 27 July 2015), (paras. 2 and 12). 18. Patrick Capps, Human Dignity and the Foundations of International Law (Oxford, Hart, 2009), p. 107. 19.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/ I520EN.pdf (accessed 15 August 2013), (para. 138). 20. Ibid.

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21.  Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), p. 9. 22. See Blagovesta Tacheva and Garrett Brown, ‘Global Constitutionalism and the Responsibility to Protect’. Global Constitutionalism, 1 (2015), pp. 32–33. 23. Ibid., p. 33. 24. Ibid., pp. 33–34. 35. Ibid., p. 34. 26.  Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), p. 10. 27. Ibid. 28. Ibid. 29. Karel Wellens, ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections’, in Solidarity: A Structural Principle of International Law, eds. Rudiger Wolfrum and Chie Kojima (Heidelberg, Springer, 2009), p. 5. 30. Ibid., p. 13. 31. Ibid., in particular pp. 4 and 9. 32. Ibid., p. 6. 33. Ibid., p. 4. 34. Ibid., p. 13. 35. Ibid., p. 12. 36.  See Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), p. 10. 37.  With reference to Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 140. 38.  Anne Peters, ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), p. 10. 39. Karel Wellens, ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections’, in Solidarity: A Structural Principle of International Law, eds. Rudiger Wolfrum and Chie Kojima (Heidelberg, Springer, 2009), p. 12. 40. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), p. 895. 41. Ibid., p. 897. 42.  See Alex Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), p. 620; Michael Doyle, ‘The Politics of Global Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2016), p. 18. 43. Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 71.

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44. Ekkehard Strauss, ‘A Bird in the Hand Is Worth Two in the Bush—On the Assumed Legal Nature of the Responsibility to Protect’. Global Responsibility to Protect, 1 (2009), p. 295. 45. Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 75. 46.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 359. 47. For Finnemore and Sikkink, institutionalisation within specific sets of international rules and organisations is integral to an emergent norm moving towards the second stage of norm cascade (see p. 900). 48. Ibid., p. 898. 49.  Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 360. 50. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), p. 901. 51. Ibid., p. 902. 52. Alex Bellamy, The Responsibility to Protect: the Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 92. 53. See in particular Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), pp. 35–39. 54. Aidan Hehir and Anthony Lang, ‘The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect’. Criminal Law Forum, 26 (2015), p. 160. 55.  This sentiment is echoed by Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 360. 56. See Alex Bellamy, ‘The Responsibility to Protect: Added Value or Hot Air?’ Cooperation and Conflict, 48 (2013), pp. 343–46. 57. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), p. 895. 58. Alex Bellamy, ‘The Responsibility to Protect: Added Value or Hot Air?’ Cooperation and Conflict, 48 (2013), in particular pp. 337 and 346. 59. Under the auspices of R2P, the four specified crimes of genocide, war crimes, ethnic cleansing and crimes against humanity must be either occurring or expected to occur in order for intervention to take place. See Gareth Evans, Ramesh Thakur, and Robert Pape, ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’. International Security, 37 (2013), p. 204. 60.  See both James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford

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University Press, 2010), p. 50; Spencer Zifcak, ‘The Responsibility to Protect’, in International Law, ed. Malcolm Evans (Oxford, Oxford University Press, 2010), p. 524. 61. Global Centre for the Responsibility to Protect, ‘UN Security Council Resolutions Referencing R2P’ (GCR2P, 2016). http://www.globalr2p. org/resources/335 (accessed 27 February 2018). 62. See both Michael Doyle, ‘International Ethics and the Responsibility to Protect’. International Studies Review, 13 (2011), p. 81; Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz.ch/DigitalLibrary/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013), (para. 4). 63. Michael Doyle, ‘International Ethics and the Responsibility to Protect’. International Studies Review, 13 (2011), p. 81. 64.  David Chandler, ‘The Paradox of the Responsibility to Protect’. Cooperation and Conflict, 45 (2010), p. 130. 65.  Michael Doyle, ‘The Politics of Global Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2016), p. 20. 66. The United Nations, ‘UNSC Resolution 1975: Adopted by the Security Council on 30 March 2011’ (UN, 2011). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/1975(2011) (accessed 12 October 2013), (preamble). For a summary, see also Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 13. 67. See Alex Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011), p. 26. 68. Cristina Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010), p. 113. On Resolution 1674, see also Ekkehard Strauss, ‘A Bird in the Hand Is Worth Two in the Bush—On the Assumed Legal Nature of the Responsibility to Protect’. Global Responsibility to Protect, 1 (2009), p. 304. 69. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 825; Heinz Gartner, ‘The Responsibility to Protect and Libya’ (OIIP, 2011). http://www.oiip.ac.at/fileadmin/ Unterlagen/Dateien/Kurzanalysen/Responsibility_to_Protect_and_ Libya.pdf (accessed 5 September 2013), (para. 11); and Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz.ch/DigitalLibrary/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013), (para. 3).

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70. Spencer Zifcak, ‘The Responsibility to Protect’, in International Law, ed. Malcolm Evans (Oxford, Oxford University Press, 2010), p. 520. 71. Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (paras. 46–51). 72.  Aidan Hehir, ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’. International Security, 38 (2013), in particular pp. 140–44. 73. See Jon Western and Joshua S. Goldstein, ‘Humanitarian Intervention Comes of Age’ (Foreign Affairs, 2011). https://www.foreignaffairs. com/articles/2011-11-01/humanitarian-inter vention-comes-age (accessed 20 January 2016); Ivo H. Daalder and James G. Stavridis, ‘NATO’s Victory in Libya’ (Foreign Affairs, 2012). https://www.foreignaffairs.com/articles/libya/2012-02-02/natos-victory-libya (also accessed 20 January 2016). 74. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 825. 75.  Ibid.; See also Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz.ch/Digital-Library/Publications/Detail/?Ing= en&id=155246 (accessed 15 September 2013), (para. 32); Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 1). 76. Alex Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics and International Affairs, 25 (2011), pp. 263–64. 77. Ibid., p. 264. 78.  In relation to Libya, see both Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into R2P’. Ethics and International Affairs, 25 (2011), p. 255; Tim Dunne and Jess Gifkins, ‘Libya and the State of Intervention’. Australian Journal of International Affairs, 65 (2011), p. 7. 79.  See Hannah VanHoose, ‘Understanding the Russian Response to the Intervention in Libya’ (Center for American Progress, 2011). https:// www.americanprogress.org/issues/security/news/2011/04/12/9529/ understanding-the-russian-response-to-the-inter vention-in-libya/ (accessed 7 August 2014), (para. 3); Julian Borger, ‘Libya No-Fly Resolution Reveals Global Split in UN’ (The Guardian, 2011). http:// www.theguardian.com/world/2011/mar/18/libya-no-fly-resolution-split (also accessed 7 August 2014), (para. 10).

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80.  Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into R2P’. Ethics and International Affairs, 25 (2011), p. 255. 81. This excludes the more recent military action against ISIS under the aegis of Operation Inherent Resolve. See Rafal Tarnogorski, ‘Libya and Syria: Responsibility to Protect at a Crossroads’ (PISM, 2012). https:// www.pism.pl/files/?id_plik=12260 (accessed 13 September 2013), (paras. 16–21); Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 30). 82.  Jonathan Gilmore, ‘Protecting the Other: Considering the Process and Practice of Cosmopolitanism’. European Journal of International Relations, 20 (2014), p. 703. 83.  See Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001), p. 164. 84.  Jonathan Gilmore, ‘Protecting the Other: Considering the Process and Practice of Cosmopolitanism’. European Journal of International Relations, 20 (2014), p. 703. 85. Michael Ignatieff, Virtual War: Kosovo and Beyond (London, Vintage, 2001), p. 164. 86. Ibid., 176. 87. Jonathan Gilmore, The Cosmopolitan Military: Armed Forces and Human Security in the 21st Century (Basingstoke, Palgrave Macmillan, 2015), pp. 187–91. 88. The implications of the Somali intervention for future US foreign policy are touched upon in Linda Melvern, Conspiracy to Murder: The Rwandan Genocide (London, Verso, 2006), p. 98; Donald Snow, Uncivil Wars: International Security and the New Internal Conflicts (London, Lynne Rienner, 1996), p. 48. 89. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 843. 90. Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 33). It should be noted, however, that the USA did take the initial lead in destroying Gaddafi’s air forces and air defences, before continuing to carry the load in refuelling, logistics, air rescue and drone attacks (see Doyle, p. 25). In addition, the USA provided the majority of the intelligence information to monitor Gaddafi forces on the ground (see Zifcak, para. 15).

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91.  Jonathan Gilmore, ‘Protecting the Other: Considering the Process and Practice of Cosmopolitanism’. European Journal of International Relations, 20 (2014), p. 703. 92. BBC News, ‘Libyan Cabinet Minister Hassan al-Droui Killed in Sirte’ (BBC, 2014). http://www.bbc.co.uk/news/world-africa-25701470 (accessed 4 February 2014), (paras. 8–9). 93. See BBC News, ‘Rival East Libya Factions Battle for Crucial Oil Ports’ (BBC, 2017). http://www.bbc.co.uk/news/world-africa-39167711 (accessed 4 March 2017). Previously, Libya was characterised by three competing administrations in the form of a militia-backed government in Tripoli, internationally recognised administration in Tobruk and the UN-backed Government of National Accord. 94. See in particular Orla Guerin, ‘Tripoli Holds Its Breath as New Libya Government Seeks Unity’ (BBC, 2016). http://www.bbc.co.uk/news/ world-africa-36072826 (accessed 20 June 2016). 95. See Graham Harrison, ‘No More Rwandas? The Manifest Failings of R2P in Theory and Practice’ (forthcoming, 2013), p. 21. 96. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), p. 895. 97.  Erfaun Norooz, ‘Libya, Resolution 1973 and the Responsibility to Protect’ (CEJISS, 2015). http://static.cejiss.org/data/ uploaded/1427712342560473/Article%2005.pdf (accessed 20 June 2016), (para. 17). 98. See Gareth Evans, Ramesh Thakur, and Robert Pape, ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’. International Security, 37 (2013), p. 206. 99. Aidan Hehir and James Pattison, ‘Introduction: The Responsibility to Protect After the Arab Spring’. Cooperation and Conflict, 51 (2016), p. 143. 100. The United Nations, ‘UNSC Resolution 2014: Adopted by the Security Council on 21 October 2011’ (UN, 2011). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/2014(2011) (accessed 26 October 2016), (para. 14). For a summary, see also Alex Bellamy, The Responsibility to Protect: A Defence (Oxford, Oxford University Press, 2015), pp. 11–12. 101. The United Nations, ‘UNSC Resolution 2127: Adopted by the Security Council on 3 December 2013’ (UN, 2013). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/2127(2013) (accessed 6 September 2013), (para. 21). See also UNSC Resolution 2301 (2016), (para. 4). 102. The United Nations, ‘UNSC Resolution 2227: Adopted by the Security Council on 29 June 2015’ (UN, 2015). http://www.un.org/en/

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ga/search/view_doc.asp?symbol=S/RES/2227(2015) (accessed 25 October 2016), (para. 11). 103. The United Nations, ‘UNSC Resolution 2277: Adopted by the Security Council on 30 March 2016’ (UN, 2016). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/2277(2016) (accessed 26 October 2016), (para. 4). 104. The United Nations, ‘UNSC Resolution 2304: Adopted by the Security Council on 12 August 2016’ (UN, 2016). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/2304(2016) (accessed 26 October 2016), (para. 8). 105.  See in particular BBC News, ‘Islamic State Committed Genocide, Says US’ (BBC, 2016). http://www.bbcco.uk/news/world-us-canada-35831711 (accessed 20 June 2016); BBC News, ‘IS Yazidi Attacks May Be Genocide’ (BBC, 2015). http://www.bbc.co.uk/news/worldmiddle-east-31962755 (also accessed 20 June 2016). 106. See The Guardian, ‘Syria and ISIS Committing War Crimes, Says UN’ (The Guardian, 2014). https://www.theguardian.com/world/2014/ aug/27/syria-isis-war-crimes-united-nations-un (accessed 20 June 2016). 107. See Global Security, ‘Operation Inherent Resolve’ (GS, 2015). http:// www.globalsecurity.org/military/ops/inherent-resolve.htm (accessed 15 April 2015), (paras. 2 and 7). 108.  BBC News, ‘Syria Air Strikes: MPs Authorise UK Action Against Islamic State’ (BBC, 2015). http://www.bbc.co.uk/news/uk-politics-34989302 (accessed 30 June 2016). 109. See Global Security, ‘Operation Inherent Resolve’ (GS, 2015). http:// www.globalsecurity.org/military/ops/inherent-resolve.htm (accessed 15 April 2015), (paras. 2 and 7). 110. Alex Bellamy, ‘Legality, Legitimacy and Human Protection: International Intervention Against ISIS in Syria’ (IPI Global Observatory, 2014). https://theglobalobservatory.org/2014/10/legality-legitimacy-human-protection-international-intervention-isis-syria-r2p/ (accessed 20 June 2016), (para. 5); Global Security, ‘Operation Inherent Resolve’ (GS, 2015). http://www.globalsecurity.org/military/ops/inherent-resolve.htm (accessed 15 April 2015), (paras. 2 and 7). 111.  The latter was the language used by Libya’s deputy ambassador to the UN. See Jonathan Graubart, ‘R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests’. Human Rights Quarterly, 35 (2013), p. 85. In addition, ‘war crimes’ and ‘crimes against humanity’ were increasingly reported by the media (Russell Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013), p. 34).

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112. Whilst not stated explicitly, this is intimated in James Pattison, ‘The Ethics of Humanitarian Intervention in Libya’. Ethics and International Affairs, 25 (2011), p. 272. 113. With reference to Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), p. 71. 114. With reference to Friedrich V. Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge, Cambridge University Press, 1991).

CHAPTER 7

The Responsibility to Protect, Imperialism and Military Intervention in Libya

This chapter will argue that R2P has, both in theory and in practice, begun to address concerns over the potential ‘misuse’ of the language of human rights and humanitarian intervention and, crucially, weakened the presence of negative imperialist trends at the global constitutional level. This is despite perceptions of R2P as a ‘Western’ principle, reservations over the doctrine’s application grounded in a discourse of postcolonial critical theory and the occurrence of regime change in Libya, a military intervention that represented a genuine application of R2P’s conceptual and legal principles. More specifically, R2P reflects a budding international legal principle endorsed and subsequently re-affirmed by a number of non-Western states that transcends the language of humanitarian intervention and its associated caveats. In particular, the doctrine engages with a broad range of preventive and reactive humanitarian measures (testament to its status as a multifaceted diplomatic and political agenda that advocates the use of force only as a matter of last resort), provides a high watermark and limited thresholds for intervention and helps to ensure an evidence-based assessment of situations in which acts of genocide, war crimes, ethnic cleansing and crimes against humanity occur. Moreover, and despite the occurrence of regime change, the chapter will articulate that the protection of human rights was the primary objective of the international community and, more specifically, the permanent members of the UN Security Council in Libya. This is evidenced © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_7

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by international condemnation of—and consensus over—the atrocities carried out by the Gaddafi regime, NATO’s subsequent response to the egregious human rights violations committed in Libya and, crucially, the positive connotations attached to regime change.1 In making it more difficult for powerful states to sanction the use of military force for anything other than genuine humanitarian reasons, alongside its relationship with military intervention in Libya, R2P has reduced the likelihood of human protection being used as a cover for the pursuit of self-motivated inclinations relevant to powerful states and, in the process, alleviated concerns surrounding the ‘misuse’ of the principles of human rights and international humanitarian law. At the same time, the doctrine has countered antipathy to Habermas’ linear and teleological assessment of the constitutionalisation process discussed in Chapter 3, enhancing the potential fulfilment of his overarching cosmopolitan objective. Furthermore, R2P has provided a normative and empirical framework through which a further weakness symptomatic of cosmopolitan human protection—its failure in practice to prevent the manifestation and potential proliferation of negative imperialist trends at the global constitutional level—can begin to be addressed. Thus, and as will be argued in this chapter, R2P has, both in theory and in practice, helped to reinforce the sense of enthusiasm that already surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

R2P: A Tool of the Powerful? R2P has, both in theory and in practice, reduced the likelihood of human protection concerns being used as a ‘Trojan Horse’2 for the pursuit of state-defined interests at the global constitutional level. However, it is important to begin by first outlining the concerns that surround R2P and, in particular, the claim that the doctrine constitutes a ‘tool of the powerful’3 that could, further to the process of constitutionalisation per se, entrench Western economic and political power and reinforce the legal and institutional dominance of the world’s most powerful states. Critics of R2P including Aidan Hehir postulate that the doctrine’s emergence should not be seen as a challenge to the powerful, but rather as a means of enabling the hegemonic powers to further their aims.4 For example, Hehir sees R2P as a principle championed by primarily Western states, academics and NGOs and with an underlying rationale—the

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protection of global human rights—that represents a hallmark of Western liberal democracy.5 From his perspective, R2P represents a means by which the principles of international law can be manipulated in order to facilitate the national interest of Western states.6 This claim is—albeit contentiously7—supported by the continued importance of the UN Security Council in sanctioning the use of coercive measures for human protection purposes, prompting claims that R2P is statist, elitist and anti-democratic.8 Whilst emerging powers such as Pakistan, India and Indonesia have grown in wealth, military might and political influence, permanent seats on the UNSC have not been extended to the regional leaders of the Global South.9 Moreover, and further to the recommendations of the 2001 ICISS report, under the aegis of R2P international intervention will almost certainly not take place in any situation that implicates the major powers.10 In this way, the continued monopolisation of powerful states over the decision-making process has re-affirmed the unequal distribution of power manifest within the UN and, more precisely, how states with the greatest economic and political power are able to legitimately demand compliance on responses to such global problems as the protection of vulnerable populations. There also remain concerns within developing countries, and particularly amongst R2P rejectionists,11 that the doctrine could be manipulated or abused in order to interfere in the domestic affairs of sovereign states under the guise of humanitarian pretexts. In short, sceptics argue that R2P could provide a smokescreen for the pursuit of inclinations, agendas and national interests germane to powerful states. Mindful of the history of Western interference in the developing world,12 states such as Pakistan, Iran, Cuba and Venezuela have interpreted R2P as a form of neo-colonialism, with the doctrine seen to represent a new model of imperialist aggression in a world where the strong systematically exploit the weak.13 Thus, for R2P rejectionists, the doctrine raises the spectre of a return to colonial habits and practices, with sovereignty subsequently considered to be a safeguard against colonialism.14 Relatedly, concerns surrounding R2P misuse and abuse have been exacerbated following the skewed humanitarian rhetoric employed by the USA and UK during the invasion of Iraq in 2003 (with both countries invoking the language of the responsibility to protect in an attempt to legitimise their actions)15 and more recently, by the occurrence of regime change in Libya, with the NATO-led Operation Unified Protector intimately bound up with the doctrine’s conceptual and legal principles. It

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is important to acknowledge that, in the case of Iraq, military intervention took place prior to the R2P that emerged from the World Summit meeting in 2005. Furthermore, and as explained in Chapter 4, the Iraq conflict helped to reinforce the boundaries of the doctrine and clarify why human rights violations that fall short of genocide, war crimes, ethnic cleansing and crimes against humanity do not justify the use of R2P rhetoric.16 In the case of Libya, however, intervention was inextricably linked to R2P, with regime change a direct consequence of the decision to implement the use of force for human protection purposes and, in addition, an intention of those responsible for executing the Security Council’s decisions in response to the perpetration of widespread human rights abuses.17 Whilst SCR1973 authorised member states to take ‘all necessary measures’ to protect civilians and civilian populated areas,18 regime change was not specifically authorised under the UN resolution.19 However, NATO and several key allies including Qatar and Jordan adopted a broad interpretation of the UN mandate, claiming that it provided the platform for a wide range of military activities. These included the suppression of Libya’s air defences, air force and other aviation capacities, as well as the use of force against Libyan field forces and its command and control capabilities on the basis that Libya’s forces constituted a threat to civilians.20 As such, therefore, NATO’s humanitarian objectives were to transmogrify into ones that embraced the notion of regime change, with the justification for its actions premised on the claim that the protection of civilians could not be achieved unless military victory was complete.21 In contrast to NATO and several of its key allies, Brazil, Russia, India, China and South Africa—the BRICS and ‘cautious supporters’22 of R2P—all objected to the broad interpretation of SCR1973. More specifically, they opposed the alteration of NATO’s military stance from one of relative neutrality to one of evident partiality in taking the side of the Libyan rebels.23 Russia and China argued that NATO had exceeded its mandate24 and attacked what they perceived to be an abuse of the provisions of SCR1973.25 In particular, the tactical use of NATO airpower to support the rebel offensive against Tripoli, the arming of rebels despite the enactment of an arms embargo,26 the presence of special forces troops on Libyan territory,27 the bombing of Libyan TV and the attempted assassination by drone of Gaddafi all strained against the protecting civilian logic of the doctrine, undermining the ‘Immaculate Intervention’ contemplated by Russia and China and discrediting the

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legal authorisation of R2P.28 Subsequently, the doctrine’s nexus with regime change in Libya was to spill over into deliberations concerning Syria, accounting in part for the relative inaction of the UNSC in response to the conflict. In particular, both Russia and China have expressed suspicion that the ultimate goal of Assad’s critics is to intervene militarily in order to bring about regime change, just as occurred in Libya.29

R2P: A Challenge to the Powerful In summary, perceptions of R2P as a ‘Western’ principle, reservations over the doctrine’s application grounded in a discourse of postcolonial critical theory and the occurrence of regime change in Libya—a military intervention endorsed under the flag of R2P—have all underlined the concerns that have and continue to surround the normative principles and empirical connotations attached to R2P. Indeed, the doctrine has yet to eschew the presence of imperialist trends at the global constitutional level, evidenced by the subsequent appearance of the Responsibility while Protecting (RwP) initiative in 2011 which, as will be discussed in Chapter 9, was precipitated by the fall out from the military intervention in Libya.30 In addition, and given its status as a emerging constitutional norm that has yet to be fully internalised by UN member states, R2P does not offer a guarantee against the wider abuse of arguments for the use of force and the possibility of military intervention taking place under false humanitarian pretexts. Alongside the implausibility of interventions occurring in situations that implicate the major powers, such detriments have served to compound protestations to Habermas’ teleological and linear assessment of the constitutionalisation process. In the process, they have potentially undermined the fulfilment of Habermas’ overarching constitutional narrative and reinforced the claim put forward in Chapter 3 that the UN remains an as yet incomplete blueprint for the establishment of a cosmopolitan legal order. However, R2P has, both in theory and in practice, weakened the possibility of human protection concerns being used as a smokescreen for the pursuit of negative imperialist trends and, more specifically, the self-interested inclinations of powerful states. For example, R2P is not a Western concept, with its roots in the concept of ‘sovereignty as responsibility’ as championed by former Sudanese diplomat Francis Deng and successive ‘non-Western’ Secretary-Generals Boutros-Boutros-Ghali and Kofi

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Annan.31 Furthermore, the first international treaty providing for a right of military intervention to protect populations from mass atrocities was not contracted by Western states, but rather by the African Union (AU) in its Constitutive Act of 2000.32 Indeed, and as argued by Mohamed Sahnoun—co-chair of the International Commission on Intervention and State Sovereignty (ICISS)—in 2009, R2P is in many ways a distinctly African contribution to global human rights, with many African states possessing an historical tradition of reciprocal rights and obligations which bind sovereigns and subjects.33 It is also important to emphasise that, despite the stance adopted by R2P rejectionists Pakistan, Cuba, Iran, Venezuela, Zimbabwe, Algeria, Belarus, Bolivia, Ecuador, Nicaragua, North Korea, Sudan and Syria, R2P represents a nascent international legal principle codified and subsequently re-affirmed by 180 of the GA’s 193 members in 2009. Thus, the doctrine has been endorsed by a number of non-Western states—including ‘cautious supporters’ such as Egypt, Malaysia, Myanmar, Qatar, Sri Lanka and Vietnam—with most relevant actors around the globe coming to accept the idea that the protection of populations in instances of genocide, war crimes, ethnic cleansing and crimes against humanity is both a national and international responsibility.34 In addition, the BRICS (Brazil, Russia, India, China and South Africa) have continued to show a constructive willingness to entertain discussion of the norm and, over time, flexibility in its adoption.35 Moreover, and despite fears over its potential misuse, R2P transcends and ‘dethrones’36 the lexicon of humanitarian intervention and its associated caveats. For example, the doctrine propagates a transition away from the ‘right of intervention’ of any state to the ‘responsibility to protect’ of every state,37 prioritises the rights and interests of all individuals and, in the process, limits the freedom of powerful states to justify the use of force for human protection purposes.38 In contrast to humanitarian intervention, which privileges the perspectives, preferences and priorities of intervening states, R2P is victim and people-centred, putting the needs and interests of victims of atrocities ahead of those of the major powers.39 In addition, and a legacy of the 2001 ICISS recommendations, R2P’s normative punch is accentuated by its engagement with a broad gamut of preventive and reactive humanitarian measures. This is testament to its status as a multifaceted diplomatic and political agenda that propagates the use of force only as a matter of last resort and which, as a consequence, has helped to bridge the lacuna between non-intervention and coercive—and, in particular, unilateral—military

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action. The doctrine also provides a high watermark and limited thresholds for intervention which, in turn, can only proceed with the authority of the UN Security Council. Whilst fuelling claims that the doctrine is statist, elitist and anti-democratic, the continued reliance on the UNSC in implementing R2P in the event of genocide, war crimes, ethnic cleansing and crimes against humanity negates the possibility of unilateral decisions taken by states or state alliances, as evidenced in Iraq and Kosovo respectively. Put simply, it closes the door to the use of force or other means of coercion without the explicit authorisation and permission40 of the UN Security Council.41 Finally, and despite the ambiguity and inconsistency that surrounds the term,42 the idea of a ‘manifest failing’ in providing the catalyst for intervention tries to ensure an evidence-based assessment of situations involving mass atrocity crimes, rather than leaving open the possibility of interpreting a state’s intentions or motives.43 This is given further weight by Bellamy’s claim that the transition away from the language of ‘unable or unwilling’ contained within the 2001 ICISS report to a ‘manifest failure’ to protect civilians establishes a significantly higher threshold for R2P action.44 In summary, R2P has, in theory, made it more difficult for powerful states to sanction the use of military force for anything other than genuine humanitarian reasons. As discussed, the doctrine engages with a broad gamut of preventive and reactive humanitarian measures, provides delineated and limited thresholds for intervention and helps to ensure an evidence-based assessment of situations in which acts of genocide, war crimes, ethnic cleansing and crimes against humanity occur. Furthermore, and as Ban Ki-moon explains in his 2009 report Implementing the Responsibility to Protect, R2P has resulted in states or groups of states finding it substantially more difficult to claim they need to act unilaterally or outside the channels of the UN in order to respond to humanitarian emergencies.45 In this way, R2P has begun to address concerns over the potential misuse of the language of human rights and humanitarian intervention by powerful states and, in the process, weakened the presence of negative imperialist trends at the global constitutional level. At the same time, in reducing the likelihood of human protection concerns being used as a ‘Trojan Horse’ for the pursuit of self-motivated inclinations relevant to powerful states, the doctrine can be understood to have countered opposition to Habermas’ linear and teleological assessment of the constitutionalisation process, enhancing the potential fulfilment of his overarching cosmopolitan objective.

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Alongside the doctrine’s language and rhetoric, the practice of R2P has also lessened the prospect of human protection being used as a cover for the pursuit of state-defined interests at the global constitutional level. Whilst yet to be explicitly referred to in the context of the secondary international responsibility to protect in instances where state authorities fail to protect their populations, the NATO-led operation in Libya represents a genuine application of R2P’s conceptual and legal principles. This is exemplified by the specific reference to R2P in the preamble of UN Resolution 1970, the consequences of which extended to UN Resolution 1973.46 It is also evident in the doctrine’s subsequent invocation by former UN Secretary-General Ban Ki-moon who, at the time, acknowledged that SCR1973 affirms, clearly and unequivocally, the international community’s determination to fulfil its responsibility to protect civilians from violence perpetrated upon them by their own government.47 UN officials had also earlier proclaimed the situation as representing a concrete case of R2P, with Ban Ki-moon’s Special Adviser on the Prevention of Genocide insisting that the Gaddafi regime complied with its 2005 commitment to the doctrine.48 Furthermore, the relationship between R2P and Libya was evidenced by the adoption of a multi-faceted—albeit largely unsuccessful49—diplomatic and political approach prior to the decision to intervene by force. This included the imposition of travel bans and asset freezes on a number of high-profile individuals and organisations50 as well as referral of the situation to the ICC.51 In addition, support for military action was elicited from a broad ambit of states and regional organisations, a hallmark of the normative consensus surrounding R2P and, further to resolution 60/1, encapsulating the doctrine’s pledge to work in conjunction with such organisations in cases where military force is required for human protection purposes.52 Finally, intervention was legal under the terms of R2P, with the conflict meeting the high watermark and delineated thresholds for intervention, in accordance with R2P implementations. Importantly in the context of this chapter, the protection of human rights was the primary objective of the international community, and, more specifically, the permanent members of the UNSC in Libya.53 This is not to deny the existence of other motives or some degree of national interest in the decision to intervene. For example, France was motivated in part by a desire to escape the scandal of its government’s alleged dealings with the corrupt Libyan regime, whilst the UK wished to be seen

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to be acting independently of the USA in order to escape the shadow of former Prime Minister Tony Blair’s perceived dependence on President Bush.54 The Obama administration, meanwhile, was concerned with protecting regional stability, deterring violent repression by other dictators and shoring up the credibility of the UN.55 At the same time, European interests in stemming the flow of migrants from the Arab world and accessing the region’s vast oil fields—and Libya’s rich oil production capabilities, given its production of 1.5 million barrels per day56—were also well documented.57 However, intervention in Libya was first and foremost humanitarian, with the presence of state-defined interests failing to fundamentally compromise the humanitarian credentials that lay at the heart of the NATOled operation.58 Indeed, and even if military intervention in Libya was a product of more than just concern for human rights and democracy, this does not mean that the intervention itself cannot be deemed humanitarian.59 There is substantial evidence to support the claim that the NATO-led operation was motivated by primarily humanitarian concerns. There was, for example, strong international condemnation of and consensus over the atrocities committed by the Gaddafi regime. On two separate occasions—the passing of UNSC Resolution 1970 and UNSC Resolution 1973 respectively—there was near agreement amongst the UNSC’s 15 member states that the level of violence targeting civilians by the Libyan government was too high.60 Resolution 1970 was voted for unanimously, whilst Resolution 1973 passed with 5 abstentions and no opposition.61 Furthermore, the decision by both Russia and China to abstain in the case of Libya could be seen as testament to Ban Ki-moon’s appeal rather than ‘recommendation’—as seen with the 2001 ICISS report62—to the UNSC’s permanent member states not to employ the use of veto in situations of manifest failure in order to meet their wider obligations to R2P.63 Indeed, and as Tim Dunne and Jess Gifkins have argued, this decision to abstain could be seen as acknowledgement that inaction was unpalatable in the face of such large-scale human rights atrocities.64 Resolutions 1970 and 1973 were also underpinned by strong humanitarian rhetoric, affirming the ‘gross and systematic violation of human rights’ occurring in Libya and that the ‘widespread and systematic attacks taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’.65 In addition, the UK argued that the purpose of resolution 1973 (which authorised member states to take all necessary measures to

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protect civilian populated areas) was to end the violence and to protect civilians.66 France, meanwhile, saw military intervention as necessary for the triumph of democracy over dictatorship, and freedom over oppression,67 whilst US strategist Dennis Ross labelled the conflict as a potential ‘Srebrenica on steroids’, with the real or imminent possibility that up to 100,000 people could be massacred.68 It is also important to reiterate that consensus for military action was elicited from a broad ambit of regional organisations. As explained in Chapter 5, these included the League of Arab States (LAS), the Peace and Security Council of the African Union and the Organisation of Islamic Co-operation,69 alongside the EU which imposed a restriction on the trade in equipment that could be used for internal repression.70 Further to international condemnation of and consensus over the atrocities committed by the Gaddafi regime, evidence that human protection concerns were the primary objective of the international community in Libya can also be found in NATO’s responses to the gross and systematic violations of human rights that took place. Whilst more recent literature on the subject has contended that the military intervention was more preventive than reactive,71 Operation Unified Protector was primarily a response to the ongoing actions of the Gaddafi regime which, as argued in Chapter 6, could be understood to constitute a ‘war crime’, ‘crime against humanity’ and even ‘genocide.’ In addition, the prosecutor of the ICC—to whom the case had been referred to by the UNSC— found what he regarded as reasonable evidence of serious crimes.72 Gaddafi and his confederates were alleged to have committed deportations, rapes, forcible attacks on non-combatants and the destruction of religious and other non-military buildings,73 alongside the extrajudicial killings and arbitrary arrests of civilians and torture of peaceful demonstrators.74 The best evidence was that 500–700 had died in February 2011 alone.75 There were reports of shooting of live rounds at peaceful protestors and attacks against civilian populations by military forces and mercenaries, which included the use of machine guns, snipers and military planes against demonstrators.76 In the month that followed, Gaddafi and his sons were also reported to have made threats of expulsion, house-to-house searches and extermination of the rebels and their supporters.77 In response, and despite the presence and implications of virtual war and concerns over the long-term consequences of the NATO-led operation,78 Operation Unified Protector was, in the short-term, a success. It

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took just one month to mobilise a broad coalition, secure a UN mandate to protect civilians, establish and enforce no-kill zones, halt Gaddafi’s advancing army and prevent a massacre of the population in Benghazi.79 This allowed NATO’s leadership and its operations to afford protection to tens of thousands of Libyan civilians.80 In the process, and as Ramesh Thakur explains, Libya showed that it is possible for the international community working through the authenticated, UN-centred structures and procedures of organised multilateralism to deploy international force in order to neutralise the military might of a thug and intervene between him and his victims.81 Finally, and despite the occurrence of regime change (enunciating how R2P has yet to negate the presence of imperialist trends at the global constitutional level), it is important to stress the positive connotations attached to regime change in Libya, particularly in the context of human protection. It should be emphasised at this point that the monograph is not concerned with assessing whether or not regime change was the appropriate response and most effective way to secure the safety of the Libyan population. Christopher Hobson, for example, has put forward the alternative of a stalemate between regime forces and rebels which, in his view, would have bought more time for negotiating a political settlement and allowed for deeper reflection on the consequences of pursuing a military course of action in Libya.82 This is despite governments, commentators and UN officials at the time coming to the conclusion that diplomacy alone would not have prevented a massacre,83 whilst for others the combination of overt threats, history of violence and mounting evidence of human rights abuses left little choice but to act immediately through the use of force.84 However, for a large section of the international community, regime change was deemed to be the most viable strategy in order to end the systematic and nefarious abuse of human rights and prevent further civilian casualties. For example, the UK described the Libyan regime as a ‘violent, discredited regime that had lost all legitimacy’, arguing that the central purpose of SCR1973 was not only to protect civilians, but to ‘allow the people of Libya to determine their own future, free from the tyranny of the Gaddafi regime.’85 Germany, meanwhile—which had voted unanimously in support of SCR1970—stated at the time that Gaddafi ‘had lost all legitimacy and can no longer be an interlocutor for us’.86 Colombia and Portugal, both of whom had endorsed resolutions 1970 and 1973, made similar statements, with the latter calling for the establishment of democracy

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in Libya and articulating that the essential objective of SCR1973 was to ‘lead a national dialogue among the Libyans conducive to the creation of a democratic state’.87 Finally, and whilst initially rejecting the idea that intervention should embrace regime change, President Obama argued that the goal in Libya was to make sure that the Libyan people could make a determination about how they wanted to proceed, free of 40 years of tyranny and able to start creating the institutions required for self-determination.88 Outside the scope of the UN Security Council, support for regime change was also voiced by executive director of the Global Centre for the Responsibility to Protect Simon Adams, who expressed an assuredness that the course of action taken was necessary and justified.89 He argued that NATO’s action was clearly the lesser of two evils, and that the international community should not be distracted by the obfuscation of those who believe that Gaddafi should have been left to his own devices.90 Meanwhile, the prominent academic and just war theorist Michael Ignatieff has suggested that regime change was the logical conclusion of supporting the use of force in Libya, asserting that ‘buyer’s remorse’ is an understandable yet naive response to the NATO-led operation.91 Finally, and whilst accepting that NATO ignored the restrictions of SCR1973 to target Gaddafi and spurned hints of any willingness by him to negotiate a ceasefire, Ramesh Thakur has argued that if the limits of SCR1973 had been respected, the civil war and subsequent international intervention could well have been longer, more protracted, messier and prolonged the misery for everyone concerned.92 On this understanding, therefore, ignoring the restrictions may have been justified on the logic of military necessity and efficiency.93 In summary, military intervention under the auspices of Operation Unified Protector was to become conflated with regime change in Libya, with the UN mandate expanded—whether rightly or wrongly—in order to address the deeper threat to the civilian population. However, the transmogrification of humanitarian objectives into ones that embraced regime change was justified, with the NATO-led operation affording protection to tens of thousands of Libyan civilians. As a result, and alongside international condemnation of and consensus over the atrocities carried out by the Gaddafi regime and, in addition, NATO’s response to the systematic human rights violations committed in Libya, the positive connotations attached to regime change have given further substance to the claim that intervention in Libya was motivated by

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primarily humanitarian concerns. At the same time, and given that military intervention was endorsed under the flag of R2P, the doctrine has, in practice, weakened the possibility of human protection concerns being used as a smokescreen for the pursuit of self-motivated inclinations relevant to powerful states. Further to its normative language, therefore, the empirical connotations attached to R2P have similarly begun to address concerns over the potential misuse of the language of human rights and humanitarian intervention and, in the process, weakened the presence of negative imperialist trends at the global constitutional level. Importantly, the relationship between R2P and Libya has also served to further weaken opposition to Habermas’ linear and teleological approach to the constitutionalisation of international law, once again strengthening the potential fulfilment of his overarching cosmopolitan objective. In addition, and crucially in the context of this monograph, R2P has come to offer both a normative and empirical framework through which a major caveat attached to cosmopolitan human protection—more specifically, its failure in practice to assuage the possibility of intervention being used as a cover for the pursuit of political and economic objectives apposite to powerful states94—can begin to be addressed. Both in theory and in practice, therefore, R2P has reinforced the sense of enthusiasm that already surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

Conclusion This chapter has outlined the concerns that have and continue to surround the normative principles and empirical connotations attached to R2P. These are reflected in perceptions of the doctrine as a ‘Western’ principle championed by primarily Western states, academics and NGOs, concerns within developing countries that R2P could be manipulated or abused in order to interfere in the domestic affairs of sovereign states and the doctrine’s nexus with regime change in Libya. Moreover, R2P’s status as an emerging constitutional norm that has so far failed to reach a ‘tipping point’ between the stages of norm cascade and norm internalisation at the global constitutional level encapsulates how the doctrine fails to offer a guarantee against the wider abuse of arguments for the use of force and, in the process, the possibility of military intervention taking place under false humanitarian pretexts.

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However, R2P has, both in theory and in practice, reduced the likelihood of human protection being used as a ‘Trojan Horse’ for the pursuit of imperialist and, more specifically, self-motivated interests germane to powerful states. As discussed, R2P embodies an emerging constitutional principle endorsed and re-affirmed by a number of non-Western states, ‘dethrones’ the lexicon of humanitarian intervention, engages with a broad gamut of preventive and reactive humanitarian measures, provides delineated and limited thresholds for intervention—including the use of force—and helps to ensure an evidence-based assessment of situations in which acts of genocide, war crimes, ethnic cleansing and crimes against humanity occur. Furthermore, the NATO-led operation in Libya—which represented a genuine application of R2P’s conceptual and legal principles—was underscored by primarily humanitarian concerns, with the presence of other motives and interests in the decision to intervene failing to fundamentally compromise the humanitarian credentials that lay at the heart of Operation Unified Protector. There was ubiquitous international condemnation of—and consensus over—the atrocities committed by the Gaddafi regime, NATO’s leadership and its operations afforded protection to tens of thousands of Libyan civilians and the occurrence of regime change was justified in the context of concerns with human protection. Both theory in and in practice, therefore, R2P has begun to address concerns over the potential misuse of the language of human rights and humanitarian intervention and, in the process, weakened the presence of negative imperialist trends at the global constitutional level. In making it more difficult for powerful states to sanction the use of military force for anything other than genuine humanitarian reasons, alongside its relationship with intervention in Libya, R2P has also served to further counter antipathy to Habermas’ linear and teleological assessment of the constitutionalisation process, strengthening the potential fulfilment of his overarching cosmopolitan objective. In addition, the doctrine has come to offer both a normative and empirical framework through which a further weakness symptomatic of cosmopolitan human protection—its failure in practice to prevent the manifestation and potential proliferation of negative imperialist trends at the global constitutional level—can begin to be addressed. Thus, R2P has, both in theory and in practice, helped to reinforce the sense of enthusiasm that already surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

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Notes





1. Whilst outside the scope of this book, it is worth alluding to the fact that the actions of UN peacekeepers, ECOWAS soldiers and French forces in Cote d’Ivoire in 2011 could also be seen to support the claim that R2P has begun to address concerns over the potential misuse of the language of human rights and humanitarian intervention and, at the same time, weakened the presence of negative imperialist trends at the global constitutional level. An intervention sanctioned under the Chapter VII of the UN Charter and framed through the prism of R2P in view of global concerns over the incitement of atrocities, under the aegis of SCR1975 the primary purpose of the UN intervention was to protect innocent people, with force used in order to protect civilians and in self-defence in response to Gbagbo’s attacks on UN headquarters and peacekeepers. This is despite claims by South Africa and Russia that the UN exceeded its protection mandate, defining Outtara as the legitimate President and proving instrumental in deposing Gbagbo from power following the contested Presidential election. For a detailed summary, see Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, ‘Libya and the Responsibility to Protect’. International Affairs, 87 (2011), pp. 829–38. 2.  Alex Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’. Ethics and International Affairs, 19 (2005), p. 32. 3. Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 134. 4. Ibid., p. 136. 5. Ibid., p. 134. 6. Ibid., p. 135. 7. As will be argued, through stipulating that ‘collective action’—including the use of force—can only proceed through the UNSC, R2P eschews the possibility of unilateral intervention as seen in Kosovo and Iraq and has, in theory, made it more difficult for powerful states to authorise military intervention for anything other than genuine humanitarian reasons. 8. See Graham Harrison, No More Rwandas? The Manifest Failings of R2P in Theory and Practice (forthcoming, 2013), p. 16. 9. With particular reference to Patrick Quinton-Brown, ‘Mapping Dissent: The Responsibility to Protect and Its State Critics’. Global Responsibility to Protect, 5 (2013), p. 273. 10.  See Jonathan Graubart, ‘R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests’. Human Rights Quarterly, 35 (2013), p. 74.

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11. There are 13 rejectionist states in total—the most extreme example being Venezuela, with former President Hugo Chavez describing R2P as being symptomatic of a process whereby ‘a few countries try to reinterpret the principles of international law in order to impose new doctrines’ (see Hehir, 2013, p. 134), whilst a further 16—including the BRICS—can be labelled ‘cautious supporters’ of the doctrine. See Patrick QuintonBrown, ‘Mapping Dissent: The Responsibility to Protect and Its State Critics’. Global Responsibility to Protect, 5 (2013), pp. 262–65. 12. Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 135. 13. Patrick Quinton-Brown, ‘Mapping Dissent: The Responsibility to Protect and Its State Critics’. Global Responsibility to Protect, 5 (2013), p. 271. 14. Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 135. 15.  See Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), pp. 354–55; Alex Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’ (E-International Relations, 2011). http://www.e-ir.info/2011/09/27/the-responsibility-to-protectand-the-problem-of-regime-change (accessed 14 April 2013), (para. 7). 16. Again, see Cristina Badescu and Thomas Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), p. 362. 17.  Alex Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’ (E-International Relations, 2011). http://www.e-ir. info/2011/09/27/the-responsibility-to-protect-and-the-problem-ofregime-change (accessed 14 April 2013), (para. 9). 18. The United Nations, ‘UNSC Resolution 1973: Adopted by the Security Council on 17 March 2011’ (UNSC, 2011). http://www.un.org/en/ ga/search/view_doc.asp?symbol=S/RES/1973(2011 (accessed 25 July 2012), (para. 4). 19. With reference to Alex Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’ (E-International Relations, 2011). http:// www.e-ir.info/2011/09/27/the-responsibility-to-protect-and-the-problem-of-regime-change (accessed 14 April 2013), (para. 9). 20. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 845. 21.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (paras. 18–19).

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22. Again, see Patrick Quinton-Brown, ‘Mapping Dissent: The Responsibility to Protect and Its State Critics’. Global Responsibility to Protect, 5 (2013), p. 264. 23.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 32). 24. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 845. 25.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/ files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 32). 26.  Ibid., (para. 33). See also Gareth Evans, Ramesh Thakur, and Robert Pape, ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’. International Security, 37 (2013), p. 206. 27. Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 27). 28. Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 24. 29. Justin Morris, ‘Libya and Syria: R2P and the Spectre of the Swinging Pendulum’. International Affairs, 89 (2013), p. 1275. 30. For further discussion on Libya and the evolution of RwP, see Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 138. 31. Luke Glanville, ‘In Defence of the Responsibility to Protect’. Journal of Religious Ethics, 41 (2013), p. 174. 32. African Union, ‘The Constitutive Act’ (African Union, 2000). https:// au.int/sites/default/files/pages/32020-file-constitutiveact_en.pdf (accessed 16 September 2017), (Article 4); See also Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 66; and Eki Omorogbe, ‘The African Union, Responsibility to Protect and the Libyan Crisis’. Netherlands International Law Review, 59 (2012), p. 149. 33. With reference to Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), pp. 62–63. 34.  Jennifer Welsh, ‘The Responsibility to Protect After Libya and Syria’. Daedalus, the Journal of the American Academy of Arts and Sciences, 145 (2016), p. 76.

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35. Patrick Quinton-Brown, ‘Mapping Dissent: The Responsibility to Protect and Its State Critics’. Global Responsibility to Protect, 5 (2013), p. 278. As outlined in Chapter 6, this is evidenced by their continued invocation of R2P post-Libya in response to egregious human rights violations in Yemen, the Central African Republic (CAR), Mali, The Democratic Republic of Congo (DRC) and South Sudan. 36. See Aidan Hehir, ‘Introduction: Libya and the Responsibility to Protect’, in Libya, the Responsibility to Protect and the Future of Humanitarian Intervention, eds. Aidan Hehir and Robert Murray (Basingstoke, Palgrave Macmillan, 2013). 37. Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 11. 38. Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), pp. 72–73. 39. See Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 65; Gareth Evans, Ramesh Thakur, and Robert Pape, ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’. International Security, 37 (2013), p. 202. 40. Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 7). 41.  Alex Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’ (E-International Relations, 2011). http://www.e-ir. info/2011/09/27/the-responsibility-to-protect-and-the-problem-of-regime-change (accessed 14 April 2013), (para. 5). 42. As alluded to previously, and whilst the not the subject of this book, see Adrian Gallagher, ‘What Constitutes a ‘Manifest Failing’? Ambiguous and Inconsistent Terminology and the Responsibility to Protect’. International Relations, 28 (2014), pp. 428–44. 43. Jennifer Welsh, ‘Norm Contestation and the Responsibility to Protect’. Global Responsibility to Protect, 5 (2013) p. 375. 44. Alex Bellamy, The Responsibility to Protect (Cambridge, Polity Press, 2009), p. 90. 45.  Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2009). http://www.unrol.org/doc. aspx?d=2982 (accessed 3 September 2013), (para. 66). However, and further to the ICISS recommendations, Ban Ki-moon’s report still recommends that the Security Council’s permanent member states restrain from applying veto power in situations of manifest failure (para. 61), whilst also re-affirming the use of the UN’s ‘Uniting for Peace’

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procedure should the UNSC fail to exercise its responsibility in relation to matters of international peace and security (para. 63). 46.  Rafal Tarnogorski, ‘Libya and Syria: Responsibility to Protect at a Crossroads’ (PISM, 2012). https://www.pism.pl/files/?id_plik=12260 (accessed 13 September 2013), (para. 16). 47.  See Erfaun Norooz, ‘Libya, Resolution 1973 and the Responsibility to Protect’ (Central European Journal of International and Security Studies, 2015). http://www.cejiss.org/static/data/uploaded/142771 2342560473/Article%2005.pdf (accessed 12 October 2015), (para. 11). 48. Ibid., (paras. 3–4). 49. Ibid., (paras. 5–6). 50. The United Nations, ‘Security Council Approves “No-Fly” Zone Over Libya’ (UN, 2011). http://www.un.org/press/en/2011/sc10200.doc. htm (accessed 6 February 2012), (paras. 6–7). 51.  See Jason Ralph and Adrian Gallagher, ‘Legitimacy Faultlines in International Society: The Responsibility to Protect and Prosecute After Libya’. Review of International Studies, 41 (2015), p. 9. 52.  See The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN. pdf (accessed 15 August 2013), (para. 139). 53. This claim is supported by Pattison and Weiss. See James Pattison, ‘The Ethics of Humanitarian Intervention in Libya’. Ethics and International Affairs, 25 (2011), p. 273; Thomas Weiss, ‘RtoP Alive and Well After Libya’. Ethics and International Affairs, 25 (2011), p. 291. 54. Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 22. 55.  Marie-Eve Loiselle, ‘The Normative Status of the Responsibility to Protect After Libya’. Global Responsibility to Protect, 5 (2013), p. 338. 56. Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 34). 57. Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 294. 58. This is debated in Hehir, The Responsibility to Protect: Rhetoric, Reality and the Future of Humanitarian Intervention (Basingstoke, Palgrave Macmillan, 2012), p. 138. 59.  With reference to Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 297. 60. Robin Collins, ‘Thinking About Libya, the Responsibility to Protect and Regime Change’ (World Federalist Movement Canada, 2011). http://

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worldfederalistscanada.org/wfmcDraftLibyaRC5_oct19%204.pdf (accessed 18 May 2012), (para. 6). 61. Ibid., (paras. 4–6). 62.  See Alex Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), p. 621. 63.  Ban Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2009). http://www.unrol.org/doc. aspx?d=2982 (accessed 3 September 2013), (para. 61). There are alternative accounts, with Hobson arguing that the speed of events pushed China and Russia towards abstaining, as they saw little benefit in supporting the isolated Gaddafi regime and wanted to avoid being blamed if a massacre in Benghazi did occur (Christopher Hobson, ‘Responding to Failure: The Responsibility to Protect After Libya’. Millennium Journal of International Studies, 44 (2016), p. 446). Doyle, meanwhile, emphasises the influence of the developing world and, in particular, the defection of Libya’s ministers of the interior and justice (Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 22). 64.  Tim Dunne and Jess Gifkins, ‘Libya and the State of Intervention’. Australian Journal of International Affairs, 65 (2011), p. 9. The decision to abstain rather than support military action, however, does highlight their continued reservations over the use of force for human protection purposes (see Alex Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics and International Affairs, 25 (2011), p. 267). 65.  See The United Nations, ‘UNSC Resolution 1970: Adopted by the Security Council on 26 February 2011’ (UNSC, 2011). http://www. un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970(2011) (accessed 21 July 2012); The United Nations, ‘UNSC Resolution 1973: Adopted by the Security Council on 17 March 2011’ (UNSC, 2011). http://www.un.org/en/ga/search/view_doc.asp?symbol=S/ RES/1973(2011) (accessed 25 July 2012), (both preamble). 66.  Marie-Eve Loiselle, ‘The Normative Status of the Responsibility to Protect After Libya’. Global Responsibility to Protect, 5 (2013), p. 339. 67. Ibid. 68.  Christopher Hobson, ‘Responding to Failure: The Responsibility to Protect After Libya’. Millennium Journal of International Studies, 44 (2016), p. 447. 69. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), pp. 839–41; Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://

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www.law.unimelb.edu.au/files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 9). 70. Eki Omorogbe, ‘The African Union, Responsibility to Protect and the Libyan Crisis’. Netherlands International Law Review, 59 (2012), p. 158. 71.  With particular reference to Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015). 72. Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 21. 73. Ibid., pp. 21–22. 74.  Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/files/ dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 8). 75.  See both Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 22; Robin Collins, ‘Thinking About Libya, the Responsibility to Protect and Regime Change’ (World Federalist Movement Canada, 2011). http://worldfederalistscanada.org/wfmcDraftLibyaRC5_oct19%204.pdf (accessed 18 May 2012), (para. 4). 76.  Marie-Eve Loiselle, ‘The Normative Status of the Responsibility to Protect After Libya’. Global Responsibility to Protect, 5 (2013), p. 330. 77. Michael Doyle, ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), p. 22. 78. For further discussion, see Chapter 6. 79. See in particular Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 69. 80.  Erfaun Norooz, ‘Libya, Resolution 1973 and the Responsibility to Protect’ (CEJISS, 2015). http://static.cejiss.org/data/ uploaded/1427712342560473/Article%2005.pdf (accessed 20 June 2016), (para. 17). 81.  Ramesh Thakur, ‘R2P After Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), p. 69. 82.  Christopher Hobson, ‘Responding to Failure: The Responsibility to Protect After Libya’. Millennium Journal of International Studies, 44 (2016), pp. 447–48. 83. Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), p. 840. 84. Nadir Dalal, ‘The R2P is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 26).

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85. See Marie-Eve Loiselle, ‘The Normative Status of the Responsibility to Protect After Libya’. Global Responsibility to Protect, 5 (2013), p. 339. 86. Ibid. 87. Ibid. 88.  See Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu. au/files/dmfile/downloaddad11.pdf (accessed 12 September 2012), (para. 18). 89. See Christopher Hobson, ‘Responding to Failure: The Responsibility to Protect After Libya’. Millennium Journal of International Studies, 44 (2016), p. 444. 90. Simon Adams, ‘R2P and the Libya Mission’ (Los Angeles Times, 2011). Available at http://www.responsibilitytoprotect.org/index.php/crises/190-crisis-in-libya/3684-simon-adams-r2p-and-libya-mission (accessed 18 September 2017), (paras. 6, 12). 91.  Christopher Hobson, ‘Responding to Failure: The Responsibility to Protect After Libya’. Millennium Journal of International Studies, 44 (2016), p. 447. 92.  Ramesh Thakur, ‘Syrians Are Paying the Price of NATO Excesses in Libya’ (E-International Relations, 2012). http://www.e-ir. info/2012/03/02/syrians-are-paying-the-price-of-nato-excesses-inlibya/ (accessed 12 June 2017), (para. 10). 93. Ibid. 94. For further discussion, see Chapter 2.

CHAPTER 8

Towards an ‘Even More’ Cosmopolitan Approach to Human Protection: Proposals on Extending the Cosmopolitan Trend

This chapter will assess the viability of a series of institutional and legal reforms which, if introduced, could perpetuate the limited moral and legal progress thus far made towards a more cosmopolitan approach to human protection and, normatively speaking, heighten the sense of enthusiasm that surrounds the evolution towards this cosmopolitan typology in the post-Cold War period. It will begin by outlining a number of proposals that would potentially augment the relationship between R2P and cosmopolitan human protection. These include the full enumeration of R2P in international law, the inculcation of a positive duty on UN member states to respond in threshold-crossing situations and the modification to a state’s perception of its ‘national interest’. Furthermore, it will advocate the construction of an independent and voluntary military capacity exclusive to the UN and the introduction and amalgamation of cosmopolitan democratic principles within R2P’s normative and conceptual framework, both of which could further enable the doctrine to both adhere to—and, indeed, perpetuate—the demands axiomatic of cosmopolitan human protection. The chapter will then outline a series of reforms that could strengthen the doctrine’s nexus with Habermas’ constitutional cosmopolitan approach. These again include the full enumeration of R2P in international law, which would see the doctrine move from an emerging to an established constitutional principle. They also include the proposals to modify a state’s perception of its national interest and establish an © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_8

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independent military capacity exclusive to the UN, which would potentially result in R2P being consistently invoked in relation to the secondary international responsibility to protect in instances where state authorities fail to protect their populations. Such reforms would, if implemented, strengthen the claim that the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and their citizens. At the same time, R2P would, both in theory and in practice, come to provide a more secure platform for the constitutionalisation and grounding of cosmopolitan ethical norms, fostering a greater sense of optimism over the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. The chapter will finish by outlining a series of proposals that could equip R2P with the tools to subvert the asymmetrical relationships and further assuage the imperialist trends that continue to run antithetical to Habermas’ linear and teleological assessment of the constitutionalisation process. With regard to the asymmetrical legal relationships still manifest at the global constitutional level, it will champion the political reforms put forward under the aegis of cosmopolitan democracy. As will be argued, such political reforms would modify the decision-making process in relation to the protection of vulnerable populations and ensure that the implementation of R2P is predicated on conventional democratic principles, consolidating Habermas’ linear and teleological approach to the constitutionalisation of international law. At the same time, situating R2P within such a comprehensive and robust programme of institutional reform at the global constitutional level would help to perpetuate Habermas constitutional cosmopolitan approach, a consequence of R2P’s locus as an emerging constitutional principle within international law. The chapter will also recommend modifications to R2P’s normative and conceptual framework, principally through the insertion of a clause stipulating that interventions can occur in situations that both implicate and directly involve UNSC members. As will be articulated, such reforms would help to remedy the failure of cosmopolitan human protection to weaken the pre-eminence of states over the decision-making process, further reinforcing the sense of enthusiasm that already surrounds the transition towards this cosmopolitan typology. With regard to the manifestation and potential proliferation of imperialist trends at the global constitutional level, finally, the chapter will advocate the endorsement and extension of the Responsibility while

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Protecting (RwP) initiative. As will be explained, the codification of RwP’s principles would help to mitigate the unintended consequences of a military intervention and allow the international community to weigh up intervention against the possibility of regime change prior to any sanctioning of a Chapter VII mandate. As a consequence, RwP would potentially strengthen international agreement over the operationalisation of R2P. In addition, it would allay concerns amongst R2P dissidents that the doctrine could be manipulated or abused in order to interfere in the domestic affairs of sovereign states under the guise of humanitarian pretexts, once more enhancing the prospective fulfilment of Habermas’ overarching cosmopolitan narrative. Moreover, R2P would come to provide a more secure empirical framework for addressing a further weakness symptomatic of cosmopolitan human protection—namely its failure in practice to assuage the possibility of military force being used as a smokescreen for the pursuit of economic and political interests germane to powerful states—once more reiterating the sense of optimism that surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

Strengthening the Nexus Between R2P and Cosmopolitan Human Protection With regard to augmenting the relationship between R2P and cosmopolitan human protection, one logical proposal would see the doctrine impart a legally binding and collective obligation—as opposed to responsibility—on the international community to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity (through diplomatic, humanitarian and coercive means) only in instances where the state is manifestly failing in its primary responsibility to protect. At the same time, the use of military force would remain an ultima ratio measure, with the threshold for military intervention still situated at the level of acts of genocide, war crimes, ethnic cleansing and crimes against humanity. As explained previously, under the aegis of the UN Charter there is currently no obligation on the wider international community to respond to such violations of human rights and international humanitarian law. In addition, the discretionary and ad hoc nature of R2P’s normative language—with collective action taken on a ‘case-by-case’ basis1—has compounded the doctrine’s capricious

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and selective application by UN member states. Any proposal to codify humanitarian intervention, meanwhile, could paradoxically increase the likelihood of international humanitarian law being employed as a ‘Trojan Horse’ for the pursuit of imperialist and, more specifically, self-interested inclinations relevant to powerful states, potentially resulting in ‘non-humanitarian’ interventions in which such states impose their will on the powerless.2 However, it must be remembered that R2P transcends the lexicon of humanitarian intervention and its associated caveats, in particular fears of domination predicated on the international power hierarchy.3 The doctrine propagates a transition away from the ‘right of intervention’ of any state to the ‘responsibility to protect’ of every state,4 prioritises the rights and interests of all individuals and, in the process, limits the freedom of powerful states to justify the use of force for human protection purposes.5 Furthermore, R2P embodies both a doctrinal innovation and conceptual development at the international level which, through its normative language and rhetoric (and, more specifically, its status as a multi-faceted diplomatic and political agenda and provision of delineated and limited thresholds for intervention), has redirected the global discussion away from a ‘sovereignty-versus-intervention’ debate. This has resulted in states finding it substantially more difficult to claim they need to act unilaterally or outside the channels of the UN in order to protect vulnerable populations. It is also important to reiterate that the NATO-led military intervention in Libya in 2011—endorsed under the flag of R2P—was fuelled primarily by human protection concerns, with regime change coming to constitute a viable strategy in the prevention of further civilian casualties. Both in theory and in practice, therefore, R2P has already established a framework for offsetting concerns pertaining to the ‘misuse’ of the terminology of humanitarian intervention, giving further substance to the proposal to fully enumerate its principles within international law. Moreover, a clause could be inserted within R2P’s normative framework—perhaps drawn up by the UN International Law Commission6— outlining the obligation of the international community to aid and co-operate in securing, protecting and promoting the fulfilment of individual rights and interests.7 Such a requirement would again be applicable in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. As a consequence, R2P would engender both an obligation and positive duty on UN member states to protect populations from such violations of human rights and international humanitarian law.

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In summary, the full enumeration of R2P in international law and the insertion of a clause pertaining to a positive duty to act in threshold-crossing situations would see the doctrine evolve from an emerging to an established constitutional principle. At the same time, the introduction of such proposals would help to strengthen the relationship between the doctrine and cosmopolitan human protection, seeing R2P move a further step towards fulfilling the demands of the cosmopolitan typology. As explained in Chapter 2, a cosmopolitan approach to human protection is concerned with conferring a collective and positive duty on powerful states to intervene—through the use of force ultima ratio— in ‘supreme humanitarian emergencies’, whilst also engaging with the broader concept of human security through its emphasis on the continued importance of sovereign states to the protection of individuals. As such, therefore, the recommendations put forward would have the effect of perpetuating and, in relation to the principle of collective responsibility, transcending the axioms underpinning cosmopolitan human protection. In addition, the insertion of a clause pertaining to a positive duty to protect would, in theory, strengthen the relationship between R2P and the cosmopolitan vision of criminal justice, with the latter concerned with intervention—including through the use of force—in the event of egregious human rights violations and, in particular, the corresponding duty imparted on non-compatriots to intervene within a sovereign territory in order to remedy an injustice. It is important to acknowledge at this point that the proposals to ensconce the doctrine in international law and insert a clause conferring a positive duty on UN member states to act in cases of genocide, war crimes, ethnic cleansing and crimes against humanity remain, for the short term at least, a chimera. The implementation of such proposals would be contingent upon the will and compliance of states (in particular, the permanent members of the UNSC), who continue to monopolise the decision-making and enforcement process in relation to the protection of vulnerable populations. As emphasised previously, the prevailing inclinations, agendas and national interests of such states continue to play an integral role in the decision whether or not to intervene in the event of genocide, war crimes, ethnic cleansing and crimes against humanity, enunciating the gap between the UN’s normative commitment to human rights and the weakness of its enforcement mechanisms. Thus, the adoption and subsequent implementation of a legally binding obligation and positive duty to act in the event of genocide,

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war crimes, ethnic cleansing and crimes against humanity would be dependent on the willingness of states to eschew such interests and elevate human protection concerns above broader political and economic objectives. It should also be reiterated that the absence of international agreement over the implementation of R2P has been exacerbated by the doctrine’s nexus with regime change in Libya, and so the likelihood of acquiring the requisite consensus to modify the doctrine’s normative and framework—and thus insert a clause pertaining to a positive duty to protect in threshold-crossing situations—remains nominal. Whilst helping to further adhere to the moral exigencies of cosmopolitan human protection, the proposals to fully enumerate R2P within international law and introduce a clause imparting a positive duty on the international community to protect in threshold-crossing situations remain in the immediate term quixotic, eclipsed by the realities of an international order in which the inclinations, agendas and national interests of states continue in practice to influence and supersede the UN’s broader normative commitment to the protection of global human rights. However, it is conceivable that these recommendations could, at some point in the future, be implemented as a result of a subtle adjustment to a state’s perception of its ‘national interest’.8 As explained in Chapters 4 and 5, the interests of powerful states have acted to qualify the relationship between R2P and the maxims of collective responsibility, conditional state sovereignty, cosmopolitan criminal justice, the provision of delineated thresholds for intervention and, more broadly, human emancipation9 innate to cosmopolitan human protection. Subsequently, and drawing upon the recommendations put forward by Kofi Annan in 1999 in response to both the illegal NATO intervention in Kosovo and the atrocities committed in Somalia, Rwanda and Bosnia-Herzegovina,10 a new, broader definition of the national interest could be introduced. This would see the narrow interests of states become congruous with the collective interests of the international community as a whole.11 Whilst discussed by James Pattison exclusively in the context of coercive military action,12 intervention under the auspices of R2P would, in this sense, be seen by states as having substantial potential benefits in terms of increased international status, greater standing in regional organisations and the opening up of new foreign markets.13 Alternatively, states could adopt a more ideational form of interests, which would transcend the realist mind-set of treating humanitarianism—including military intervention for humanitarian purposes—as

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a separate category of state behaviour.14 According to Chris Brown, morality—and thus non-material factors—can be accommodated within a state’s perception of its national interest, with the desire to live in a world in which gross violations of human dignity do not take place and a willingness to make this possible, for example, considered as legitimate a basis for self-interest as the defence of national borders or state sovereignty.15 From an ideational perspective, therefore, protecting vulnerable populations in accordance with R2P’s legal and conceptual principles would come to be seen as in the national interests of independent sovereign states. Relatedly, neither Pattison nor Brown consider the practicalities or complexities associated with modifying a state’s perception of its national interest. In particular, neither takes into account the extent to which the inclinations, agendas and interests of powerful states (including concerns with preserving the national integrity of autonomous sovereign states and efforts to eschew military casualties) continue to influence and dictate the measures adopted by the international community in response to systematic and nefarious abuses of human rights. However, and as discussed in Chapter 3, one has already seen how, under the umbrella of the UN, the collective responsibility inculcated on member states to promote international peace and security has been incrementally extended to the protection of cross-border human rights in the post-Cold War period, with the UN providing the ‘building blocks’ for the construction of a global legal identity and form of cosmopolitan citizenship at the global constitutional level. This trend has continued under R2P, a prominent post-Cold War institution of international human rights enforcement which, as explained in Chapter 6, can be contextualised within a ‘new’ politics of protection. Through its locus as a novel and nascent international legal principle increasingly internalised and invoked by UN member states, R2P has strengthened the recognition and institutionalisation of global human rights and, crucially, helped to begin to bridge the lacuna manifest between the UN’s normative commitment to global human rights and the weakness of its enforcement mechanisms. Reinforced by the primary humanitarian objectives pursued by the international community in the cases of Kosovo16 and, more recently, Libya, concerns with global human rights and, in particular, human protection have, therefore, already begun to coalesce and amalgamate with a state’s perception of its national interest. Furthermore, and whilst not directly coterminous with Brown’s ideational model, the European Union (EU)

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has already demonstrated how democratic experiences and historical practices have helped to establish new political meanings and cosmopolitan norms17 that transcend the boundaries of sovereign states. This is evidenced by the disaggregation of citizenship rights18 under the aegis of both the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR). By the same logic, such democratic ‘iterations’ have come to shape the perceptions and interests of EU member states, with the organisation representing an illustrative model of self-generated jurisgenerative politics.19 Moreover, and despite recent political developments such as Brexit, the re-election of right-wing Prime Minister Viktor Orban in Hungary and populist gains during the general election in Italy potentially alluding to a shift away from the language of intervention and the importance of international institutions, the EU’s position as an illustrative model of self-generated jurisgenerative politics is also applicable in the context of security and human rights. This is in view of the institution becoming increasingly ‘outward-looking’ in scope, embodying a collective commitment amongst its member states to the promotion of international peace and security and the protection of global human rights.20 Furthermore, the coalescence of humanitarianism with a state’s perception of its national interest could also extend beyond the protection of individual human rights. As explained in Chapter 4, R2P can already be equated with a politics of prevention, with the doctrine placing a responsibility on the international community to help prevent the conditions that can lead to violent and protracted conflict within endemically weak and abusive states and, in addition, reflecting a theoretical consensus amongst UN member states relating to the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity. R2P’s relationship with atrocity prevention is also evidenced by its c­ ontribution to forestalling the escalation of violence in Kenya in 2007 and Guinea in 2009–2010.21 Indeed, the focus on prevention contained within Paragraph 138 of the World Summit Outcome Document—­ assisting those states under stress before crises and conflicts break out22—is, according to Jennifer Welsh, one of the key reasons why the doctrine was able to garner unanimous endorsement.23 In addition, a discourse of atrocity prevention has appeared in a number of UN member states. For example, the USA has established the Atrocities Prevention Board (APB), an initiative that signals that atrocity prevention and response has become a core objective of US foreign policy and that the prevention

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of atrocity crimes is becoming a more conscious and consistent focus.24 Moreover, Denmark, Costa Rica and Ghana have created ‘national focal points’ for R2P within their governments, designed to enable or strengthen efforts to improve atrocity crime prevention and response.25 These national-level officials accelerate the adoption of such domestic measures as conducting national risk assessments, signing and ratifying treaties of international humanitarian law and developing laws to address exclusion and discrimination which, in turn, advance the implementation of pillar one responsibilities.26 Finally, progress in capacity building is also evident at the regional level, with the EU appointing an R2P ‘focal point’ to co-ordinate the work of policy divisions active in different aspects of atrocity prevention and response.27 Thus, conflict prevention has, similarly to the protection of individual human rights, come to constitute an integral aspect of the global human rights discourse that has emerged within the international community in the post-Cold War period. Consequently, the proposal to conflate humanitarianism with a state’s perception of its national interest could extend to the prevention of human rights crises within endemically weak and abusive states. In summary, concerns with global human rights, atrocity prevention and, in particular, human protection have already begun to coalesce and amalgamate with a state’s perception of its national interest, with the EU, UN and, in addition, R2P coming to provide the institutional building blocks for the realisation of Brown’s ideational model. Thus, it is not inconceivable that, in the long term, the proposals to fully enumerate R2P within international law and introduce a clause imparting a positive duty on the international community to act in threshold-crossing situations could eventually be achieved. Moreover, through potentially elevating the role that human rights concerns play in the decision-making process relating to the protection of vulnerable populations, such an adjustment to a state’s perception of its national interest could also have the effect of strengthening international consensus over the implementation of R2P. This, in turn, would see the doctrine more regularly translate into practice its re-conceptualisation of state sovereignty, at the same time taking a further important step towards overcoming the perennial tension between human rights and state sovereignty endemic to the UN. In addition, it would heighten the relevance of the vision of cosmopolitan criminal justice intimately bound up with R2P’s legal and conceptual principles and, furthermore, provide a platform for the cogent and consistent application of the doctrine’s delineated thresholds

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for intervention in the form of genocide, war crimes, ethnic cleansing and crimes against humanity. The proposition to modify a state’s perception of its national interest would, in practice, also enhance the relationship between the doctrine and the broader ethical principles of human emancipation and atrocity prevention, strengthening the protection of individual rights and freedoms in ‘supreme humanitarian emergencies’ whilst further aiding the prevention of acts of genocide, war crimes, ethnic cleansing and crimes against humanity. In this way, the conflation of humanitarianism with a state’s perception of its national interest would help to once more augment the relationship between the doctrine and cosmopolitan human protection, seeing R2P move a further step towards fulfilling the normative expectations of the cosmopolitan typology. A further recommendation, meanwhile, would see the UN acquire its own independent military capacity. This would have the effect of weakening the monopoly possessed by states over the use of military force which, as discussed in Chapter 3, has further characterised the gap between political rhetoric and political reality manifest at the global constitutional level. As explained previously, the UN lacks a force upon which it can call directly to conduct military enforcement action,28 with the implementation of its Chapter VII mandates remaining at the behest of states and, in particular, the permanent members of the UN Security Council. This continued reliance on the military capabilities of states helps in part to account for the international community’s failure to protect vulnerable populations in Somalia, Rwanda and Kosovo in the post-Cold War period. Furthermore, the practice of Remote Cosmopolitanism and the almost complete absence of ground troops in Libya can be seen as testament to the continuing phenomenon of ‘virtual war’, a legacy of the NATO-led operation in Kosovo and a glowing indictment of the continued antipathy of UN member states to the loss of troops in conflict situations. In view of this continued retention of military force by UN member states, and by way of reform, one proposal would, as suggested by Pattison, see the extension and enhancement of the UN’s Standby Arrangement System (UNSAS).29 This would include the introduction of rapid response units in order to strengthen the capacity for the UN to directly undertake military interventions for humanitarian purposes.30 As Pattison explains, an enhanced UNSAS would result in the UN developing a wider knowledge of available troops and an ability to

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deploy soldiers more quickly, improved planning of humanitarian operations and, crucially, could mean that member states would be more willing to commit troops and resources.31 With regard to the creation of rapid response units, meanwhile, these could be modelled on the existing EU Battlegroups conceived in 2004, a legacy of the European Rapid Reaction Force (ERRF) originally devised in 1999 following the development of the European Crisis Management Capacity (CMC).32 The operational military components of the European Security and Defence Policy (ESDP) and Common Security and Defence Policy (CSDP), the EU Battlegroups are conceived as rapidly deployable and coherent force packages, consisting of highly trained, battalion-sized formations— made up of approximately 1500 soldiers—available within 15 days notice and sustainable for at least 30 days.33 Given that these military groups are equipped with a broad spectrum of crisis management instruments that combine both military and civilian assets,34 and have already been deployed in various capacities in both the Balkans and Sub-Sahara Africa,35 the introduction of UN rapid response units could help to further bridge the gap between peacekeeping and peace enforcement. In the process, they could potentially come to resemble the ‘cosmopolitan-minded’ militaries postulated by Mary Kaldor and Robert Fine in their broader discussions of cosmopolitan law-enforcement.36 It should be emphasised at this point that the long-term viability and sustainability of the current EU Battlegroups have been brought into question by the increasing preoccupation of the EU with the development of a separate civilian crisis management capacity,37 ubiquitous debate over the Battlegroups’ operational capability38 and by their status as a pool of voluntary national military forces (rather than a permanent or ‘standing’ EU force), with their deployment wholly dependent upon the national approval of EU member states.39 Indeed, the issue of national approval is mooted by Pattison in his support for an extended and improved UNSAS, conceding that any operationalisation of an enhanced UN military capacity would continue to be dependent on the ad hoc contribution of troops as a result of UN member states retaining control over their deployment.40 Consequently, a more cogent proposal would see the construction of a large41 cosmopolitan UN standing force. This idea is put forward by Pattison and, in addition, prominent advocates of both cosmopolitan democracy and the institutional variant of cosmopolitan human protection. As outlined in Chapter 2, David Held propagates the establishment

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of a permanent and independent military force composed of individuals who volunteer from all countries.42 Daniele Archibugi, on the other hand, supports the creation of a cosmopolitan force or ‘rescue army’ composed of soldiers, police and civilians drawn from around 50 of the largest and most wealthy nations.43 Pattison, meanwhile, echoes many of the sentiments put forward by Held and Archibugi, advocating the construction of a permanent UN standing force composed of between 75,000 and 175,000 troops at any one time that would—similarly to a smaller UN force—be truly cosmopolitan in character.44 This army would be composed of volunteers motivated by humanitarian concerns and who, crucially, would have no national allegiance.45 Further to the proposals to fully enumerate R2P within international law and introduce a clause imparting a positive duty on the international community to respond in instances of genocide, war crimes, ethnic cleansing and crimes against humanity, it should be emphasised that, for the immediate term, the creation and deployment of an independent and voluntary military capacity unique to the UN remains a pipedream. As Pattison himself concedes, a UN force would require autonomy, both through the acquisition of financial, military and logistical resources and, more importantly, through being freed from the self-interested decision-making of the major powers.46 Thus, both the construction and effective operationalisation of this new standing army would require adjustments to the way in which intervention—particularly through the use of force—is authorised at the global constitutional level. As stressed at various junctures throughout this monograph, states (and, more specifically, the UNSC’s permanent members) continue to monopolise the decision-making process in respect to the protection of vulnerable populations, with the inclinations, agendas and national interests germane to such states remaining pre-eminent in the decision whether or not to intervene for human protection purposes. This is reflected in the continued retention of veto power by the UNSC’s permanent member states, with the absence of an UN-sanctioned mandate in Kosovo and, more recently, the continued failure to reach international consensus in response to the atrocities in Syria further characterising the gap between political rhetoric and political reality manifest at the global constitutional level. However, the proposal to establish an independent and, in particular, voluntary cosmopolitan force would help to overcome the antipathy of UN member states to the loss of troops in conflict situations, negating

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the requirement for national approval in cases of genocide, war crimes, ethnic cleansing and crimes against humanity. In addition, and given the viability of conflating humanitarianism with a state’s perception of its national interest, the potential for such a military capacity to be authorised and utilised in conflict situations would be substantially increased. Thus, the creation and deployment of a voluntary military capacity unique to the UN (with the latter already coming to reflect a constitutional authority that provides the groundwork for the adoption of a more ideational form of interests at the global constitutional level) could, in the long term, be achieved. If so, it would not only abrogate the UN’s reliance on the military capabilities of states, but it would also represent a modification to the role of state self-interest in the decision-making and enforcement process. This would be as a consequence of eschewing concerns over military casualties and, in addition, human protection coming to provide as legitimate a basis for self-interest as the broader inclinations of powerful states. As a consequence, the introduction of a cosmopolitan UN standing force could, in practice, similarly strengthen international consensus over the implementation of R2P’s legal and conceptual principles. Such a proposition would once more transcend the realist mindset of treating humanitarianism—including military intervention for humanitarian purposes—as a separate category of state behaviour and, crucially, further heighten the relevance of the vision of criminal justice innate to both R2P and cosmopolitan human protection. In this way, the creation of an independent and voluntary military capacity unique to the UN would again have the effect of adhering to—and, indeed, perpetuating— the moral exigencies associated with this cosmopolitan typology. Thus far, this chapter has proposed fully enumerating R2P within international law, imposing a positive duty on UN member states to act in threshold-crossing situations and, most practically, modifying a state’s perception of its national interest. These proposals would, if implemented, come to strengthen the relationship between R2P and cosmopolitan human protection, seeing the doctrine move a step further towards fulfilling the normative expectations of the cosmopolitan typology. Alongside these recommendations, a further proposal concerns the introduction and amalgamation of cosmopolitan democratic principles within R2P’s normative and conceptual framework. This would have the effect of enhancing the nexus between the doctrine and the poverty and causation model of distributive justice inextricably linked to cosmopolitan human protection. As discussed in Chapter 5, the relationship

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between R2P and this model of distributive justice remains discursive, with the doctrine failing to sufficiently recognise the importance of the global socio-economic realm in achieving justice for individuals, whilst also providing only cursory recommendations on how to address conflict-inducing behaviour by influential global actors. Consequently, one can turn to the series of institutional and democratic proposals put forward under the aegis of cosmopolitan democracy. From a cosmopolitan democratic perspective, the current system of global governance is characterised by a persistent ‘democratic deficit’ in which there are few mechanisms of accountability accessible to the general population.47 Put another way, the global socio-economic realm is characterised by a politics of exclusion, with the participation of individuals in the decision-making process of prominent global actors either non-existent or serving a merely aesthetic purpose.48 According to Held and Anthony McGrew, this democratic deficit is attributable in part to the impact of environmental, political and, in particular, economic globalisation on the nation state, a phenomenon that transforms the spatial organisation of social relations and transactions and, as a consequence, generates transcontinental or international networks of interaction and the exercise of power.49 In the process, it disrupts the hierarchical structure of the state system.50 Globalisation has resulted in the appearance of quasi-autonomous international institutions,51 transnational corporations and NGOs, influential global actors who have contributed to the failure of the current system of global governance in achieving human security and social development. In addition, Held and Archibugi emphasise how powerful states have distorted the current system and precipitated this persistent democratic deficit which, in turn, has restricted the realisation of greater social justice and human security.52 This is encapsulated by their role in establishing new supra-state layers of political authority—more specifically, international governmental organisations (IGOs)—in an effort to promote or regulate the forces of globalisation which, subsequently, have weak democratic credentials and stand in an ambiguous relationship to existing systems of national accountability.53 Furthermore, it is reflected in the continued influence of states over the global economic decision-making process, underlined by the asymmetrical and hierarchical structure of such IGOs as the World Bank, IMF and World Trade Organisation (WTO).54 Crucially, it is the resulting system of elite global governance detached from responsibility to the general population55 that has widened global

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inequalities and social exclusion, offsetting the potential fulfilment of greater social justice and human security. In view of the democratic deficit associated with the current system of global governance, Held advocates the construction of a global democratic polity and culture, the only framework in which, from a cosmopolitan democratic perspective, the ideals of autonomy and democracy (and, more specifically, individual participation in the global economic and political decision-making process) can be fully realised.56 Encompassing a broad gamut of political, environmental and economic measures, Held postulates the creation of a new global democratic assembly (or global parliament) of democratic peoples—directly elected by them and accountable to them—that could potentially work alongside the existing UN General Assembly.57 A body of democratic nations that would, in principle, draw other nations in over time, and incorporating states, IGOs, NGOs, citizen groups and social movements, this assembly would act as an authoritative centre for the examination of global problems including food supply and the distribution of resources.58 It is these problems that have contributed to the widening of global inequalities and social exclusion and, in turn, precipitated the appearance of violent and protracted forms of intra-state conflict in the post-Cold War period. Daniele Archibugi, meanwhile, echoes many of Held’s sentiments in supporting the construction of a World Parliamentary Assembly (WPA) that directly represents the peoples of the world rather than their governments.59 This Assembly would potentially comprise some 600 directly elected deputies, with a more than proportional representation accorded to smaller countries and a less than proportional one to larger countries.60 The WPA would have a wide jurisdiction, representing a forum for the discussion of such global problems as economic and social development, the defence of human rights and the promotion of political participation.61 Archibugi also stresses the need for greater democracy within existing international organisations, alluding to the continued influence of powerful states over the global economic decision-making process. This is reflected in the imbalance in decision-making power within the World Bank, as well as in the IMF’s quota system.62 In summary, cosmopolitan democracy transcends the language and rhetoric of R2P in systematically acknowledging the role of the global socio-economic realm and, in particular, powerful states in precipitating injustice amongst individuals—evidenced by the democratic deficit paradigmatic of the existing system of global governance—and, in

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addition, puts forward cogent recommendations that could potentially address this problem. However, the proposal to introduce and amalgamate cosmopolitan democratic principles within R2P’s normative and conceptual framework could be seen as a chimera, whilst a number of the reforms put forward under the aegis of cosmopolitan democracy per se require clarification. With regard to the latter, for example, ambiguity surrounds the rules determining the representative base of Held’s global democratic assembly, including over the principle of ‘one nation, one vote’, the relationship between the allocation of representatives and population size and the representation of major international organisations.63 Furthermore, Held and Archibugi differ in their approaches to non-democratic nations, with Held advocating their gradual integration and Archibugi, in contrast, eschewing the possibility of their inclusion within the WPA.64 As such, therefore, cosmopolitan democracy continues to provoke important and thus far unresolved questions pertaining to both its democratic praxis and structural efficacy. As for the proposal to introduce and amalgamate cosmopolitan democratic principles within R2P’s normative and conceptual framework, meanwhile, alternative realist and liberal explanatory accounts of global governance continue to assert the pre-eminence of the state in domestic and international affairs. Realists, for example, argue that national governments still make the primary decisions relating to economic and political matters and set the rules within which other actors function.65 Liberals, on the other hand, postulate the existence of a neoliberal capitalist international order predicated on US hegemonic power,66 committed to the pursuit of the liberal goals of equal freedom under the rule of law in all states of the world.67 However, and as explained previously, R2P does tacitly acknowledge the role of the global socio-economic realm in contributing to conditions of global poverty and inequality, whilst also providing cursory recommendations on how to address conflict-inducing behaviour by influential global actors. In the process, R2P has come to reflect a fledgling commitment within the international community to eliminating the gross inequalities that cause large-scale humanitarian crisis, at the same time providing a discursive link between the doctrine and the poverty and causation model of distributive justice. Thus, it is not inconceivable that a systematic analysis and acceptance of the role of influential global actors, including powerful states, in widening global inequalities and accelerating the appearance of violent and protracted forms of

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intra-state conflict could eventually manifest and coalesce with R2P. If so, the doctrine would augment its relationship with the poverty and causation model of cosmopolitan distributive justice inextricably linked to cosmopolitan human protection. The introduction and amalgamation of cosmopolitan democratic principles within R2P’s framework would, therefore, have the effect of further strengthening the relationship between the doctrine and a cosmopolitan approach to human protection, once more helping the doctrine to adhere to—and, indeed, perpetuate— the normative expectations of this cosmopolitan typology.

Strengthening the Nexus Between R2P and Habermas’ Global Constitutional Paradigm Thus far, this chapter has critically assessed a series of institutional and legal reforms which, if introduced, could strengthen the relationship between R2P and cosmopolitan human protection. Having done so, it will now outline proposals which, if implemented, could perpetuate the cosmopolitan legal tenets intimately bound up with the doctrine and, in the process, R2P’s nexus with Habermas’ constitutional cosmopolitan approach. As discussed in Chapter 6, R2P has come to embody a novel and nascent international legal principle increasingly internalised and invoked by UN member states, helping to begin to bridge the lacuna between the UN’s normative commitment to global human rights and the weakness of its enforcement mechanisms. However, R2P remains primarily a conceptual innovation, with the doctrine yet to acquire the status of an established constitutional principle. Consequently, the proposal to enshrine R2P in international law could potentially address this shortcoming. More precisely, it would see the doctrine subvert its status as a weak constitutive norm by virtue of imparting a legally binding and collective obligation on the international community to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity through diplomatic, humanitarian and coercive means—and the use of force as a last resort—in instances where the state is manifestly failing in its primary responsibility to protect. Whilst impractical in the short term, the proposal to fully enumerate R2P in international law could, as argued previously, eventually be achieved as a result of a subtle adjustment to a state’s perception of its national interest. As discussed, concerns with global human rights,

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atrocity prevention and, in particular, human protection have already begun to coalesce and amalgamate with a state’s perception of its national interest, with the EU, UN and, in addition, R2P coming to provide the institutional building blocks for the adoption of a more ideational form of interests at the global constitutional level. Consequently, enshrining R2P within international law would have the concomitant effect of perpetuating Habermas’ constitutional cosmopolitan approach and, at the same time, strengthening the claim that the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and their citizens. As a result, R2P would provide a more secure platform for the constitutionalisation and grounding of cosmopolitan ethical norms (in particular, the maxims of collective responsibility and, more broadly, human security), helping to engender a greater sense of enthusiasm over the transition towards a more cosmopolitan approach to human protection in the post-Cold War period. Further to its absence in international law, widespread disagreement continues amongst states over the implementation of R2P’s conceptual and legal principles in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. This is evidenced by the fact that the doctrine has yet to be invoked explicitly in relation to the secondary international responsibility to protect in instances where state authorities fail to protect their populations. As discussed in Chapter 6, and with specific reference to the conflict in Libya, the absence of a secondary international responsibility to protect can be attributed in part to the prevailing concerns of Russia and China with preserving the territorial integrity of autonomous sovereign states and, in addition, antipathy amongst UN member states to the loss of troops in conflict situations. In potentially overcoming this problem, one can again turn to the proposals to modify a state’s perception of its national interest and establish an independent military capacity unique to the UN. The coalescence of humanitarianism with a state’s perception of its national interest (with human protection concerns coming to provide as legitimate a basis for self-interest as the broader political and economic inclinations of powerful states) and, furthermore, the creation of a voluntary UN standing force that negates the requirement for national approval and assuages concerns over military casualties could, in practice, help to remedy the absence of a secondary international responsibility to protect in instances of genocide, war crimes, ethnic cleansing and crimes against

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humanity. Relatedly, and further to increasing international consensus over the operationalization of R2P’s legal and conceptual principles, these proposals would, if implemented, see the doctrine take a further step towards reaching the ‘norm internalisation’ stage of Finnemore and Sikkink’s normative life-cycle model (as explained in Chapter 6, denoted when a norm acquires a ‘taken for granted’ quality). In the process, R2P could offer a blueprint for the evolution of a customary international law concerned with the protection of global human rights in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. At the same time, the consistent invocation and application of R2P by UN member states in threshold-crossing situations would help to further bridge the gap between the UN’s normative commitment to human rights and the weakness of its enforcement mechanisms. As a consequence, the doctrine would once again come to advance Habermas’ constitutional cosmopolitan approach and strengthen the claim that the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and their citizens. When similarly assessed within the context of its relationship with cosmopolitan human protection (more specifically, the principles of conditional state sovereignty, cosmopolitan criminal justice, the provision of delineated thresholds for intervention and, more broadly, human emancipation), R2P would again offer a more secure platform for the constitutionalisation and grounding of such cosmopolitan ethical norms, once more fostering a greater sense of optimism over the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. Having outlined proposals intended to strengthen the relationship between R2P and Habermas’ constitutional cosmopolitan approach, the chapter will now consider a series of recommendations that could equip the doctrine with the tools to subjugate the asymmetrical relationships and further assuage the imperialist trends that continue to run antithetical to Habermas’ linear and teleological assessment of the constitutionalisation process. These would, if implemented, help to further reinforce the sense of optimism that already surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. As explained in Chapter 3, the continued retention of veto power by the UNSC’s permanent member states has further characterised the weakness of the UN’s enforcement mechanisms in respect to the protection of global human rights. Furthermore, the Delta Force Operation in

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Somalia in the 1990s, the US- and UK-led invasion of Iraq in 2003 and, more contentiously, the NATO-led intervention in Libya in 2011 have all heightened fears that humanitarian intervention could be employed as a smokescreen for the pursuit of imperialist and, more specifically, self-interested inclinations relevant to powerful states. At the same time, they have served to reinforce the claim that the UN remains an as yet incomplete blueprint for the construction of Habermas’ cosmopolitan legal order, further qualifying the prospective fulfilment of his overarching cosmopolitan objective. In remedying R2P’s failure to overcome the asymmetrical legal relationships manifest within the UN, one can again turn to the model of cosmopolitan democracy propagated by Held and Archibugi. Further to their systematic acknowledgement of the role of the global socio-economic realm in precipitating injustice amongst individuals and subsequent advancement of reforms that would potentially subjugate the democratic deficit symptomatic of the current system of global governance, Held and Archibugi also explore the political ­connotations attached to this elite and undemocratic system and, more specifically, its implications for human rights. Held, for example, argues that despite its potential, the UN continues to be undermined as an autonomous agency.68 As he explains, the implementation of its initiatives in relation to conflict management and resolution continues to be checked as a result of infighting amongst nations and groups wholly unable to settle pressing collective issues.69 Further to pursuing measures to enforce key elements of the UN Rights Conventions, the prohibition on the discretionary right to use force and the collective security system envisaged within the UN Charter, Held proposes extending the UN Charter model.70 This would take the form of providing means of redress in the case of human rights violations via a new international human rights court; making a near consensus vote in the General Assembly a legitimate source of international law (and recognised by the global democratic assembly); modifying the veto arrangement in the UNSC or rethinking representation within the Security Council so as to allow for adequate regional accountability.71 In so doing, a basis could be established for the UN to act as a politically independent decision-­making centre which, crucially, would generate political resources of its own.72 This would see the institution take an important step towards both establishing and maintaining the ‘rule of law’—limiting the arbitrary exercise of power by states—and see its impartial administration in

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international affairs.73 In short, such reforms would help to offset the accusation that the UN exists to serve the interests of the major powers, more specifically that it acts as a vehicle for the entrenchment of Western political and economic power and re-affirms the legal and institutional dominance of the world’s most powerful states. Archibugi, meanwhile, argues that the five-country right to veto within the UNSC is a breach of all conventional democratic principles, reflecting a form of constitutional hypocrisy and imperial privilege within the international sphere.74 Consequently, he proposes limiting the exercise of veto power to certain issues, broadening the representation of the UNSC to include ten more frequently rotating seats elected by the GA and, finally, opening up the UNSC to regional institutions such as the EU and, in time, NGOs.75 NGOs have, as Robert Gilpin acknowledges, already successfully influenced the policy areas of a number of national governments and international institutions.76 Furthermore, given that the inclusion of NGOs is, from a cosmopolitan perspective, intended to maximise the role that genuine humanitarian concerns play in any deliberations leading up to the use of force,77 their inclusion with the UNSC could have substantial and, at the same time, positive implications for the decision-making process in respect to the protection of vulnerable populations. For both Held and Archibugi, therefore, cosmopolitan democracy provides a means through which to overcome the detrimental political connotations attached to the elite and undemocratic system of global governance, weakening the monopoly possessed by powerful states over the decision to intervene for human protection purposes. With regard to R2P, modifying the decision-making process at the global constitutional level would help to ensure that any application of the doctrine is founded upon conventional democratic principles. As such, therefore, R2P would, as a minimum, come to consolidate Habermas’ linear and teleological assessment of the constitutionalisation process. Furthermore, given R2P’s locus as an emerging norm and nascent international legal principle in respect to the duties conferred on the wider international community, modifying the decision-making process in respect to the protection of vulnerable populations and, in turn, potentially increasing the number of international interventions that would occur under the aegis of the doctrine could, as a result, further enhance the prospective fulfilment of Habermas’ overarching cosmopolitan objective. Thus, situating R2P within such a comprehensive and robust programme of institutional

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reform at the global constitutional level would have the effect of both consolidating and perpetuating Habermas’ constitutional cosmopolitan approach. Moreover, any alteration to the decision-making process in respect to the protection of vulnerable populations could extend directly to R2P’s normative and conceptual framework, principally through the insertion of a clause—drawn up by the UN International Law Commission—that stipulates that interventions can occur in situations that both implicate and directly involve UNSC members. Subsequently, R2P would help to further offset the elitist and non-democratic principles upon which the existing system of global governance is purported to be based and, at the same time, the non-cosmopolitan legal tenets manifest within the UN. Furthermore, and as a consequence of such reforms, R2P would potentially address the failure of cosmopolitan human protection in practice to weaken the pre-eminence of powerful states over the decision-making process, coming to further reinforce the sense of enthusiasm that already surrounds the evolution towards this cosmopolitan typology in the post-Cold War period. Whilst situating R2P within a broader programme of global institutional reform and modifying the doctrine’s normative and conceptual framework in order to reflect a greater level of democratic accountability could enhance the prospective fulfilment of Habermas’ overarching cosmopolitan objective, such proposals remain, for the immediate term, both idealistic and highly utopian in outlook. Their introduction would again be contingent upon the will and compliance of powerful states, set against the realities of an international order in which the inclinations, agendas and national interests of such states continue in practice to influence and, at times, supersede the UN’s broader normative commitment to the protection of global human rights. Despite efforts by the French government to create a voluntary agreement amongst the P5 to refrain from using the veto in instances of genocide, war crimes, ethnic cleansing and crimes against humanity,78 veto power continues to provide a constitutional mechanism whereby intervention can be precluded despite transgressions under the umbrella of both international and international humanitarian law. As explained in Chapter 3, this was in evidence in Kosovo—where Russia and China threatened to veto any proposed resolution on the use of force—and, more recently, in Syria, where the same members of the UN Security Council have vetoed all draft resolutions aimed at ending the political violence. For now, a more realistic proposition would see the adoption of an ideational form of interests at the

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global constitutional level which, as discussed, could elevate the role that human rights concerns play in any decision to intervene for human protection purposes. It should also be stressed that the proposals put forward by Held and Archibugi raise further unresolved questions relating to both the democratic praxis and structural efficacy of the cosmopolitan democratic model. Held, for example, supports widening representation within the UNSC so as to allow for adequate regional accountability, however subsequently fails to specify how and in what form such representation would take. Archibugi, meanwhile, alludes to restrictions on the power of veto, yet fails to specify which issues its use would be limited to. There are also caveats attached to some of the more succinct and forthright proposals put forward under the aegis of cosmopolitan democracy. For example, whilst Held supports making a near consensus in the GA a legitimate source of international law, it is highly unlikely that such an agreement could be secured given the current level of opposition to any form of intervention authorised outside the auspices of the Security Council.79 At the same time, the present option to bypass inaction within the UNSC—the GA’s ‘Uniting for Peace’ procedure—is both non-binding and considered a process of recommendation only.80 Archibugi’s proposal to eventually extend representation within the UNSC to NGOs, meanwhile, is similarly problematic, given these organisations’ perceived lack of accountability and genuine ability to influence the policymaking process.81 Finally, and whilst both Held and Archibugi support opening up the UNSC to regional institutions, the motivations and actions of such groups remain essentially contested. For example, and as explained in Chapter 5, whilst the LAS played a pivotal role in pressurising the UNSC into imposing sanctions and enforcing a Chapter VII mandate in the case of Libya, the organisation has been unwilling to provide a strong lead in the case of Syria. This is a consequence primarily of the close relationship that many of its members—particularly Lebanon—share with the Assad regime. Furthermore, and despite support for SCR 1973 (which authorised UN member states to take all necessary measures in order to protect civilians and civilian populated areas in Libya), the AU was initially muted in its response to the crisis. This was in view of its indefatigable ties to the Gaddafi regime,82 underlining how broader economic and political objectives have continued to influence and shape the involvement of regional organisations in humanitarian crises occurring within African states. It could also be argued that

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the AU’s subsequent support for military intervention in Libya was not primarily motivated by humanitarian concerns, despite claims to the contrary.83 In summary, the unlikelihood of making a near consensus in the GA a legitimate source of international law, concerns over the accountability and capabilities of NGOs within the ambit of the UNSC and the interests of regional organisations have all reiterated the problematic and complex nature of the proposals put forward under the aegis of cosmopolitan democracy. Further to its quixotic approach to modifying the decision-making process, the limits of cosmopolitan democracy have— for the immediate term at least—underlined the impracticality of situating R2P within such a broad programme of global institutional and democratic reform. Finally, and in response to the manifestation and continued proliferation of imperialist trends at the global constitutional level, this chapter advocates the endorsement of the Responsibility while Protecting (RwP) initiative championed by Alex Bellamy. RwP was originally put forward by Brazilian President Dilma Rousseff at a General Assembly meeting in 2011 and precipitated by the fallout from the military intervention in Libya.84 Although the NATO-led military intervention was fuelled primarily by human protection concerns, it is important to remember that regime change was a direct consequence of the decision to implement the use of force and an intention of those responsible for executing the Security Council’s decisions in response to widespread human rights abuses. At the same time, events in Libya have intensified the absence of international agreement over the operationalisation of R2P, with concerns over the doctrine’s nexus with regime change spilling over into deliberations and debates surrounding Syria and helping to account in part for the relative inaction of the UNSC in response to the conflict. Thus, it is clear that the international community must address the difficult questions surrounding the implementation of R2P in order to maximise the protection afforded to vulnerable populations, whilst maintaining the global consensus that followed the endorsement and subsequent re-affirmation of the doctrine.85 The Responsibility while Protecting initiative calls for a renewed focus on prevention, which, according to Bellamy, would involve states providing real resources to strengthen preventive capacities and establish the development of strategies for prevention including capacity building, early warning and assessment, information sharing and joint lesson

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learning.86 In addition, RwP proposes stronger accountability for states acting under a UN mandate, as well as enhanced analysis and assessment to drive decision-making on the best responses to the manifestation or imminent perpetration of human rights atrocities.87 Whilst still in its infancy, Bellamy draws upon the RwP initiative to put forward a number of proposals which, if introduced, could balance the need to maintain a global consensus over the manner in which R2P is implemented with the requirement for timely and decisive action to protect vulnerable populations.88 With regard to the issue of accountability, he advocates the strengthening of existing procedures within the UNSC, potentially through the insertion of specific measures into Security Council resolutions.89 Such measures could include ‘sunset clauses’—placing a timelimit on UN mandates—specific reporting requirements so as to ensure states relay their conduct directly to the UNSC, limits on certain practices, the possibility of direct action by the Security Council and information gathering mandated by the UNSC separate from the reporting of states.90 Crucially, the inclusion of such processes would help to offset the unintended consequences of implementing a Chapter VII mandate, as Bellamy explains allowing the tailoring of accountability measures to individual circumstances and, crucially, enabling the UNSC to more effectively hold individual states that act on its mandates to account.91 Bellamy argues that the responsibility of analysing the best responses to the manifestation or imminent perpetration of acts of genocide, war crimes, ethnic cleansing and crimes against humanity should be assigned to the Joint Office for Genocide Prevention and the Responsibility to Protect within the UN Secretariat, an independent service that works for all member states.92 This service is already concerned with conducting early warning assessment, building system-wide capacity and developing common policy on R2P situations.93 Indeed, it helped to frame the debate over the conflict in Libya as one concerning atrocity prevention and human protection.94 Moving forward, therefore, the Joint Office for Genocide Prevention and the Responsibility to Protect appears to be the most appropriate—and most feasible—body for re-shaping the decision-making process in relation to the protection of vulnerable populations. Whilst the ultimate decision to intervene would still remain in the hands of powerful states, the Joint Office would provide detailed information relating to the merits and demerits of different courses of action,95 including the use of force for human protection purposes. As such, therefore, the international community would be in a position to

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weigh up coercive intervention against the possibility of regime change prior to any sanctioning of a Chapter VII mandate. It should be stressed that the strengthening of accountability measures for states acting under a UN mandate and, in addition, enhanced decision-making under the aegis of the Joint Office for Genocide Protection and the Responsibility to Protect is once again dependent upon the compliance of powerful states and, in particular, their willingness to elevate human protection concerns above broader political and economic interests. Furthermore, even if RwP was to be endorsed and adopted by the international community like R2P, regime change may, in practice, remain an intended consequence of those responsible for implementing the UN’s Chapter VII mandates. This would come to constitute both a strength and weakness of RwP, the former reflected in the NATO-led intervention in Libya and the latter by the interventions in Somalia and Iraq. However, it must be remembered that progress has already been made in modifying the decision-making process at the global constitutional level. This is evidenced by the gradual conflation of humanitarianism with a state’s perception of its national interest which, in time, could elevate the role that human rights concerns play in any decision to intervene for human protection purposes. In addition, and as seen in the sanctioning of a Chapter VII mandate in Libya (an intervention endorsed under the flag of R2P), the Joint Office for Genocide Prevention and the Responsibility to Protect has already played an important role in evaluating and disseminating responses to the manifestation of acts of genocide, war crimes, ethnic cleansing and crimes against humanity. Thus, it is not beyond the realms of possibility that, moving forward, UN member states could become more receptive to the role of the Joint Office and, crucially, accede to its recommendations, particularly on the merits and demerits of employing military force. In summary, the Responsibility while Protecting initiative put forward by Brazilian President Dilma Rousseff and developed further by Alex Bellamy proposes stronger accountability for states acting under a UN mandate and enhanced analysis of the best responses to the manifestation or imminent perpetration of human rights atrocities. In turn, RwP could reduce the likelihood of unintended regime change and, in particular, heighten global awareness of the phenomenon and its concomitant implications prior to any decision to intervene for human protection purposes. Consequently, the codification and application of RwP would

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come to strengthen international consensus over the implementation of R2P’s legal and conceptual principles. More precisely, it would allay concerns amongst R2P dissidents that the doctrine could be manipulated or abused in order to interfere in the domestic affairs of sovereign states under the guise of humanitarian pretexts. At the same time, R2P would, in practice, further counter opposition to Habermas’ linear and teleological assessment of the constitutionalisation process, once more enhancing the prospective fulfilment of his overarching cosmopolitan objective. The doctrine would also provide a more secure empirical framework for addressing a further weakness symptomatic of cosmopolitan human protection, more precisely its failure in practice to reduce the possibility of military force being used as a smokescreen for the pursuit of broader political and economic interests apposite to powerful states. Thus, R2P could again both adhere to and perpetuate the normative expectations of the cosmopolitan typology, further reiterating the sense of optimism that surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period.

Conclusion This chapter began by outlining a number of proposals that could, if implemented, strengthen the relationship between R2P and cosmopolitan human protection. These proposals include the full enumeration of R2P in international law, the inculcation of a positive duty on UN member states to respond in threshold-crossing situations and the modification to a state’s perception of its ‘national interest’. Furthermore, the construction of an independent and voluntary military capacity exclusive to the UN and, in addition, the introduction and amalgamation of cosmopolitan democratic principles within R2P’s normative and conceptual framework would potentially enable the doctrine to both adhere to— and, indeed, perpetuate—the moral exigencies of cosmopolitan human protection. Having assessed the viability of these reforms, the chapter then put forward a series of recommendations that could perpetuate the cosmopolitan legal tenets intimately bound up with the doctrine and, in the process, R2P’s nexus with Habermas’ constitutional cosmopolitan approach. These again include the full enumeration of R2P in international law, which would see the doctrine move from an emerging to an established constitutional principle. They also include the proposals to

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modify a state’s perception of its national interest and establish an independent military capacity exclusive to the UN, potentially resulting in R2P being consistently invoked in relation to the secondary international responsibility to protect. This, in turn, would further help to bridge the gap between the UN’s normative commitment to human rights and the weakness of its enforcement mechanisms. Consequently, such reforms would, if introduced, enhance the claim that the UN reflects the foundations of a budding global constitutional order resembling something analogous to a legally constituted political community of states and their citizens, at the same time perpetuating Habermas’ constitutional cosmopolitan approach. Thus, R2P would, both theory in and in practice, come to provide a more secure platform for the constitutionalisation and grounding of cosmopolitan ethical norms, fostering a greater sense of optimism over the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. Finally, the chapter put forward proposals that could equip R2P with the tools to subjugate the asymmetrical relationships and further assuage the imperialist trends that continue to run antithetical to Habermas’ linear and teleological assessment of the constitutionalisation process. With regard to the asymmetrical legal relationships still manifest at the global constitutional level, the chapter endorsed the political reforms put forward under the auspices of cosmopolitan democracy. Such reforms would modify the decision-making process in relation to the protection of vulnerable populations and help to ensure that the implementation of R2P is predicated on conventional democratic principles, consolidating Habermas’ linear and teleological assessment of the constitutionalisation process. At the same time, situating R2P within such a comprehensive and robust programme of institutional reform at the global constitutional level would also come to perpetuate Habermas constitutional cosmopolitan approach. This is as a consequence of R2P’s status as an emerging constitutional norm in respect to the duties conferred on the wider international community and a potential increase in the number of international interventions that would occur under the aegis of the doctrine. Subsequently, the doctrine would help to remedy the failure of cosmopolitan human protection to weaken the pre-eminence of states over the decision-making process, further reinforcing the sense of enthusiasm that already surrounds the transition towards this cosmopolitan typology in the post-Cold War period.

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With regard to the manifestation and continued proliferation of imperialist trends at the global constitutional level, finally, the chapter advocated the endorsement of the Responsibility while Protecting (RwP) initiative championed by Alex Bellamy. As articulated, the codification of RwP’s principles would, through proposing stronger accountability for states acting under a UN mandate and enhanced analysis of the best responses to the manifestation or imminent perpetration of human rights atrocities, help to mitigate the unintended consequences resulting from a military intervention and allow the international community to weigh up intervention against the possibility of regime change prior to any sanctioning of a Chapter VII mandate. As a consequence, RwP would potentially strengthen consensus over the operationalisation of R2P’s legal and conceptual principles and, crucially, assuage concerns that the doctrine could be manipulated or abused in order to interfere in the domestic affairs of sovereign states under the guise of humanitarian pretexts. At the same time, R2P would, in practice, further counter opposition to Habermas’ linear and teleological assessment of the constitutionalisation process, once more enhancing the prospective fulfilment of his overarching cosmopolitan objective. In addition, the doctrine would come to provide a more secure empirical framework for addressing a further weakness symptomatic of cosmopolitan human protection—namely its failure in practice to reduce the possibility of military force being used as a smokescreen for the pursuit of economic and political interests apposite to powerful states—once more reiterating the sense of optimism that surrounds the evolution towards a more cosmopolitan approach to human protection in the post-Cold War period. It is important to reiterate that a number of the institutional and legal reforms put forward in this chapter remain for the immediate term a chimera, a consequence primarily—albeit not exclusively—of the prevailing inclinations, agendas and national interests of states and their concomitant monopolisation of both the decision-making and enforcement process in respect to the protection of vulnerable populations. However, both the introduction and amalgamation of cosmopolitan democratic principles within R2P’s normative and conceptual framework and, in particular, the modification to a state’s perception of its ‘national interest’ do remain realistic and feasible propositions. In the case of the former, this is reflected in the doctrine’s budding acknowledgement of the importance of the global socio-economic realm in achieving justice for

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individuals and, at the same time, its cursory recommendations on how conflict-inducing behaviour by influential global actors could potentially be subverted. At the same time, this is testament to the relationship between the doctrine and the poverty and causation model of cosmopolitan distributive justice. In the case of the latter, meanwhile, this is evidenced by the fact that concerns with global human rights, atrocity prevention and, in particular, human protection have already begun to coalesce and amalgamate with a state’s perception of its national interest, with the EU, UN and, in addition, R2P coming to provide the institutional building blocks for the adoption of a more ideational form of interests at the global constitutional level. Through potentially elevating the role that human rights concerns play in the decision-making process, such an adjustment to a state’s perception of its national interest could also increase the plausibility of R2P being fully ensconced in international law and the insertion of a clause pertaining to a positive duty to act in threshold-crossing situations, strengthening agreement amongst states over the implementation of the doctrine’s legal and conceptual principles. This, in turn, would see R2P more regularly translate into practice its re-conceptualisation of state sovereignty, increase the relevance of the vision of cosmopolitan criminal justice intimately bound up with R2P, provide a platform for the cogent and consistent application of the doctrine’s delineated thresholds for intervention and augment R2P’s relationship with the broader ethical principles of human emancipation and atrocity prevention. Moreover, it could, in practice, remedy the absence of a secondary international responsibility to protect in instances of genocide, war crimes, ethnic cleansing and crimes against humanity, helping to provide a more secure platform for the constitutionalisation and grounding of cosmopolitan ethical norms. In short, the conflation of humanitarianism with a state’s perception of its national interest constitutes a robust and potentially viable proposition which, in theory and in practice, would have significant and positive implications for the relationship between R2P and both cosmopolitan human protection and Habermas’ constitutional cosmopolitan approach. At the same time, it would help to perpetuate the limited moral and legal progress thus far made towards a more cosmopolitan approach to human protection and, normatively speaking, heighten the sense of enthusiasm that surrounds the evolution towards this cosmopolitan typology in the post-Cold War period.

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Notes





1.  See The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN. pdf (accessed 15 August 2013), (para. 139). 2. See in particular Simon Caney, Justice Beyond Borders (Oxford, Oxford University Press, 2006), p. 255. 3. Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, Cambridge University Press, 2006), p. 251. 4. Luke Glanville, ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), p. 11. 5. Alex Bellamy, The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009), pp. 72–73. 6. This suggestion is based on Archibugi’s claim that the Commission is the most appropriate body to draw up guidelines relating to the process of humanitarian intervention. See Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), pp. 6–7. 7. Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 100. 8. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 249. 9. This is in view of such interests running contrary to the international responsibility to protect the individual rights and freedoms of populations in threshold-crossing situations. 10.  See Chris Abbott, ‘Rights and Responsibilities: The Dilemma of Humanitarian Intervention’. Global Dialogue, 7 (2005), p. 5. 11. Ibid. 12. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 249. 13. Ibid. 14. Ibid. 15. Chris Brown, ‘Selective Humanitarianism: In Defence of Inconsistency’, in Ethics and Foreign Intervention, eds. Deen Chatterjee and Don Scheid (Cambridge, Cambridge University Press, 2003), pp. 39 and 46. 16. This contention is supported by Nicholas Wheeler in ‘The Humanitarian Responsibilities of Sovereignty: Explaining the Development of a New Norm of Military Intervention for Humanitarian Purposes in International Society’, in Humanitarian Intervention and International

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Relations, ed. Jennifer Welsh (Oxford, Oxford University Press, 2006), pp. 48–49. 17. See Seyla Benhabib, ‘Hospitality, Sovereignty and Democratic Iterations’, in Another Cosmopolitanism, ed. Robert Post (Oxford, Oxford University Press, 2006), p. 159. 18. Ibid., pp. 170–71. 19. Ibid., pp. 168–70. 20. This is reflected in the creation of the EU Battlegroups, the operational military components of the European Security and Defence Policy (ESDP) and Common Security and Defence Policy (CSDP). These will be returned to later in the chapter. 21. For further discussion, see Chapter 4. 22.  The UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN. pdf (accessed 15 August 2013), (para. 138). 23.  Jennifer Welsh, ‘The Responsibility to Prevent: Assessing the Gap Between Rhetoric and Reality’. Cooperation and Conflict, 51 (2016), p. 220. 24. Ibid., p. 218. 25. Ibid. 26.  Jennifer Welsh, ‘The Responsibility to Protect After Libya and Syria’. Daedalus, the Journal of the American Academy of Arts and Sciences, 145 (2016), pp. 77–78. 27. Ibid., p. 78. 28. Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford, Oxford University Press, 1999), p. 4. 29. For details of current pledges made by UN member states, see Office of Military Affairs, ‘UNSAS Website—UN Force Link’ (UN, 2013). https://cc.unlb.org/UNSAS%20Training%20Documents/TCC%20 Meeting%20UNSAS%20presentation%2030%20Jan%202013.pdf (accessed 12 August 2014). 30. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 228. 31. Ibid. 32.  See in particular Per Cramer, ‘Reflections on European Effective Multilateralism and the Use of Force’, in Beyond the Established Legal Borders, eds. Malcolm Evans and Panos Koutrakos (Oxford, Hart Publishing, 2011), pp. 226–39; Directorate-General for External Policies of the Union, ‘The European Security and Defence Policy: From the Helsinki Headline Goal to the EU Battlegroups’ (European Parliament, 2006).

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http://www.europarl.europa.eu/meetdocs/2009_2014/documents/ sede/dv/sede030909noteesdp_/sede030909noteesdp_en.pdf (accessed 27 February 2013), (para. 36). 33.  Directorate-General for External Policies of the Union, ‘The EU Battlegroups’ (European Parliament, 2006). http://www.europarl. eur opa.eu/meetdocs/2009_2014/documents/sede/dv/sede030909notebattkegroups_/sede030909notebattlegroups_en.pdf (accessed 9 May 2013), (para. 11). 34. Official Journal of the European Union, ‘Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community’ (EU, 2007). http://eur-lex.europa.eu/legal-content/EN/ TXT/PDF/?uri=OJ:C:2007:306:FULL&from=EN (accessed 9 May 2013), (para. 275). 35. A comprehensive assessment of the EU’s broader military/civilian crisis management missions is provided by Jeannette Ladzik, ‘EU Military and Civilian Crisis Management Operations: The First Six Years’ (Global Policy Institute, 2009). http://www.fedtrust.co.uk/filepool/Crisis_ Management_Policy_Brief.pdf (accessed 14 March 2013). 36. For further discussion, see Chapter 2. 37. This is illustrated both by the EU’s endorsement of the Headline Police Goal in 2000 and the establishment of the European Gendarmerie (or Police) Force by France, Italy, the Netherlands, Portugal and Spain in 2004, albeit outside the EU framework. For further discussion, see both Timothy Chafos, ‘The European Union’s Rapid Reaction Force and the North Atlantic Treaty Organisation Response Force: A Rational Division of Labour for European Security’ (Faculty of the US Army, 2003). http:// www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA416120 (accessed 31 January 2013), (para. 163); Directorate-General for External Policies of the Union, ‘The European Security and Defence Policy: From the Helsinki Headline Goal to the EU Battlegroups’ (European Parliament, 2006). http://www.europarl.europa.eu/meetdocs/2009_2014/documents/ sede/dv/sede030909noteesdp_/sede030909noteesdp_en.pdf (accessed 27 February 2013), (para. 37). 38. According to Wade Jacoby and Christopher Jones, a question mark continues to hang over the relationship between strategic vision and military capacity within the EU, highlighted by the fact that the Battlegroups are only currently ‘operational’ in Sweden and the Czech Republic. For further discussion of the Swedish and Czech Battlegroups, see Jacoby and Jones, ‘The EU Battle Groups in Sweden and the Czech Republic: What National Defence Reforms Tell Us About European Rapid Reaction Capabilities’. European Security, 17 (2008), in particular pp. 315–17.

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39. See Terry Terriff, ‘The European Rapid Reaction Force: An Embryonic Cosmopolitan Military?’, in Forces for Good: Cosmopolitan Militaries in the Twenty-First Century, eds. Lorraine Elliott and Graeme Cheeseman (Manchester, Manchester University Press, 2004), p. 152. 40. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), pp. 228–29. 41. Pattison does discuss the possibility of a small cosmopolitan UN force; however, despite removing the need for national approval, such an army would, in his opinion, have a limited capability in responding to largescale humanitarian crises (see pp. 229–31). 42. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995), p. 276. 43.  Daniele Archibugi, ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), pp. 13–15. 44. James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), pp. 230 and 233. 45. Ibid., p. 233. 46. Ibid., p. 230. 47.  David Held and Anthony McGrew, ‘Introduction’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 14; Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), pp. 24–25. 48. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), pp. 93–94. 49.  David Held and Anthony McGrew, ‘Introduction’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), pp. 1–2. 50.  See Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 26; David Held and Anthony McGrew, ‘Introduction’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 7. 51. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 77. Archibugi describes these institutions as performing an ‘autonomous role’, whilst also acknowledging that they are bound by the will of their governments.

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52.  See David Held and Anthony McGrew, ‘Introduction’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 14; Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 13. 53.  David Held and Anthony McGrew, ‘Introduction’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 14. 54. Ibid.; See also Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 7; Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), pp. 93–94. 55. Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 25. 56. Ibid., pp. 26–27. 57. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995), pp. 273–74; See also Patrick Hayden, Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), p. 28. 58. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995), p. 274. 59. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 174. 60. Ibid. 61. Ibid., pp. 172–73. 62. Ibid., pp. 93–94. For example, within the World Bank members with the greatest financial contributions have the greatest input into the decision-making process (the US government holds 20% of the vote), whilst in the case of the IMF the initial quota assigned to a member country— based on its level of economic importance—determines its financial commitment, voting power and its access to IMF financing. 63. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995), pp. 273–74. 64. Ibid.; Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), p. 173. 65. Robert Gilpin, ‘A Realist Perspective on International Governance’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 238.

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66. See Hayden’s discussion of liberal internationalism in Cosmopolitan Global Politics (Aldershot, Ashgate, 2005), with particular reference to p. 30. 67. Neil Walker, ‘Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalisation of International Law’, in Multiculturalism and the Law: A Critical Debate, ed. Omid Shabani (Cardiff, University of Wales Press, 2007), p. 220; Habermas himself acknowledges the USA’s commitment to the creation of such a neoliberal capitalist international order, with the USA’s proclamation of its National Security Strategy in 2002 and, more pertinently, the decision to invade Iraq in 2003 seen as testament to the USA’s attempts to establish a Pax Americana. Indeed, this trend has seemingly continued with the recent US airstrikes against a Syrian airbase and government sites in response to chemical weapons attacks against civilians in Kahn Sheikhoun and Douma respectively. Such events have prompted debate over whether international law remains an appropriate—and indeed relevant—medium for realising the declared goals of achieving peace and international security and, in addition, promoting democracy and human rights throughout the world. However, Habermas’ himself tempers such cynicism by explaining that the USA’s shift to hegemonic liberalism encompasses a recent and potentially temporary reversal of its more enduring commitment to an internationalist strategy, as well as a neglect of its own long-term interest in binding powerful states to the legal rules and procedures synonymous with a politically constituted international community. Moreover, the USA’s endorsement and re-affirmation of R2P, decision to consent to and support—rather than actively lead—military intervention in Libya under the auspices of SCR1973 and, more recently, its deployment of air strikes against ISIS and jihadist militants in Iraq and Syria as part of a wider multinational effort under the auspices of ‘Operation Inherent Resolve’ all demonstrate the continued importance and relevance of international norms and procedures to the US administration. In addition, the USA’s invasion of Iraq is considered to be less a reflection of a positive commitment to—and promotion of—core liberal values than an expression of wider political and economic objectives; In addition to Walker, see Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 72; Joseph Micallef, ‘The Enemy of My Enemy: Islamic State and the Internationalisation of the Syrian and Iraqi Civil Wars’ (Huffington Post, 2015). http://www.huffingtonpost.com/joseph-v-micallef/the-enemy-of-my-enemy-isl_b_6541952.html (accessed 14 February 2015), (paras. 1–2); and BBC News, ‘Syria War: US Launches Missile Strikes in Response to “Chemical Attack”’ (BBC, 2017). http://www.bbc.co.uk/ news/world-us-canada-39523654 (accessed 16 May 2017).

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68. See David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995), p. 268. 69. Ibid. 70. Ibid., p. 269. 71. Ibid. 72. Ibid. 73. Ibid. 74. Daniele Archibugi, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008), in particular pp. 92–93, 156–57. 75. Ibid., pp. 163–64. 76. Robert Gilpin, ‘A Realist Perspective on International Governance’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), p. 244. 77. See Robert Fine, Cosmopolitanism: Key Ideas (London, Routledge, 2007), p. 84. 78.  Jennifer Welsh, ‘The Responsibility to Protect After Libya and Syria’. Daedalus, the Journal of the American Academy of Arts and Sciences, 145 (2016), p. 80. 79. See James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010), p. 47. 80. Nadir Dalal, ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu. edu/cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013), (para. 43). 81.  David Chandler, ‘The Limits of Human Rights and Cosmopolitan Citizenship’, in Rethinking Human Rights: Critical Approaches to Human Rights, ed. David Chandler (Basingstoke, Palgrave Macmillan, 2002), pp. 119–20. 82. See in particular Eki Omorogbe, ‘The African Union, Responsibility to Protect and the Libyan Crisis’. Netherlands International Law Review, 59 (2012), pp. 155–58. 83. Other factors include the disproportionate influence of the pro-US Gulf Co-operation Council (GCC) faction of the Arab League, Gaddafi’s ‘pariah’ status within the African region as a whole and efforts by Arab League states to divert attention away from their own political troubles. See Alex Bellamy and Paul Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International

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Affairs, 87 (2011), p. 842; Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 296. 84. For further discussion regarding Libya and the evolution of RwP, see Aidan Hehir, Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013), p. 138. 85. Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz. ch/Digital-Library/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013), (para. 42). 86. Ibid., (para. 43). 87. Maria Luiza Ribeiro Viotti, ‘Letter from the Permanent Representative of Brazil to the United Nations addressed to the Secretary General’ (UN, 2011). http://cpdoc.fgv.br/sites/default/files/2011%2011%2011%20 UN%20conceptual%20paper%20on%20RwP.pdf (accessed 7 August 2014), (paras. 19–20). 88. Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz. ch/Digital-Library/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013), (para. 53). 89. Ibid., (para. 47). 90. Ibid., (para. 48). 91. Ibid., (paras. 48–49). 92. Ibid., (para. 51). 93. International Coalition for the Responsibility to Protect, ‘Joint Office of the Special Adviser on the Prevention of Genocide and the Responsibility to Protect’ (ICRtoP, 2013). http://www.responsibilitytoprotect.org/ index.php/component/content/article/3618 (accessed 14 October 2013), (para. 11). 94. Alex Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics and International Affairs, 25 (2011), pp. 263–64. 95. Alex Bellamy, ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz. ch/Digital-Library/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013), (para. 51).

CHAPTER 9

Conclusion: The Responsibility to Protect and the Move Towards a More Cosmopolitan Approach to Human Protection This monograph has argued that the Responsibility to Protect doctrine (R2P) is suggestive of a shift towards a more cosmopolitan approach to human protection in the post-Cold War period. More specifically, through being contextualised within the framework of Habermas’ constitutional cosmopolitan approach and, concomitantly, providing a prospective footing for the constitutionalisation and grounding of cosmopolitan ethical norms, it has contended that R2P has engendered a sense of optimism surrounding the evolution towards a more cosmopolitan form of human protection, both in theory and in practice. In validating its overarching research objective, this book has undertaken the task of comprehensively linking the moral and legal developments that have taken place under R2P into broader debates and discussions concerning contemporary forms of cosmopolitan theory, contributing substantially to the existing literature on R2P and both Habermas’ constitutional approach and cosmopolitan human protection. For example, and given the limited analysis of the cosmopolitan ethical tenets underpinning the doctrine and, in particular, the moral relationship between R2P and cosmopolitan human protection that has thus far taken place, it has assessed the doctrine’s moral cogency specifically in the context of a cosmopolitan approach to human protection. Although yet to adhere to the normative demands of this cosmopolitan typology, R2P is commensurate with the principles of collective responsibility, conditional state sovereignty, ‘cosmopolitan’ criminal justice, the provision of © The Author(s) 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0_9

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delineated thresholds for intervention and, more broadly, the poverty and causation model of distributive justice that lie at the heart of a cosmopolitan approach to human protection. Moreover, and whilst the prevailing inclinations, agendas and national interests of powerful states continue to influence any decision whether or not to intervene in order to protect vulnerable populations, the doctrine also engages and interacts with the broader ethical principles of human emancipation, atrocity prevention and human security coterminous with this cosmopolitan typology. Furthermore, and taking into account the nominal reference thus far made to the cosmopolitan legal norms intimately bound up with R2P and, more specifically, the doctrine’s relationship with Habermas’ model of global constitutionalism, the monograph has framed R2P’s legal standing specifically within the context of Habermas’ constitutional cosmopolitan approach. Although yet to be fully enumerated in international law or to elicit international consensus over the operationalisation of its legal and conceptual principles in instances where state authorities fail to protect their populations, through its locus as a novel and nascent international principle incrementally internalised and invoked by UN member states, R2P has come to strengthen the potential fulfilment of Habermas’ overarching cosmopolitan objective. At the same time, and given its relationship with cosmopolitan human protection, R2P has provided a platform for the constitutionalisation and grounding of cosmopolitan ethical norms, helping to foster a sense of optimism surrounding the transition towards a more cosmopolitan approach to human protection in the post-Cold War period. This sense of enthusiasm has been reiterated by the fact that R2P has begun to address concerns over the potential misuse of the language of human rights and humanitarian intervention and, crucially, weakened the presence of negative imperialist trends at the global constitutional level. More specifically, through countering opposition to Habermas’ linear and teleological assessment of the constitutionalisation process, the doctrine has come to offer a normative and empirical template through which the failure of cosmopolitan human protection to lessen the possibility of intervention being used as a cover for the pursuit of state-defined interests can begin to be addressed. Finally, and in the light of the failure of political commentators to frame proposed changes to the institutionalisation and operationalisation of R2P within the context of both Habermas’ global constitutional paradigm and a cosmopolitan approach to human protection, this book has outlined a series of reforms which, if implemented, could strengthen

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the cosmopolitan moral and legal tenets attached to R2P. It is important to emphasise once again that a number of the institutional and legal reforms put forward in this book remain—in the short term—quixotic. This is a consequence primarily of the continued dependence on provisions of legitimacy from within state-centred systems and, in particular, the continued monopolisation of states over the decision-making and enforcement process in respect to the protection of vulnerable populations. However, the amalgamation of cosmopolitan democratic principles within R2P’s normative and conceptual framework and, furthermore, an adjustment to a state’s perception of its national interest constitute realistic and viable propositions. In the case of the former, this is underlined by R2P’s tacit acknowledgement of the role of the global socio-economic realm in achieving justice for individuals and, in addition, its cursory recommendations on how conflict-inducing behaviour by influential global actors could potentially be subverted. In the process, a discursive link has been established between the doctrine and the poverty and causation model of cosmopolitan distributive justice. Thus, and given that R2P constitutes a nascent commitment to the elimination of the inequalities that cause large-scale humanitarian crisis, it is not inconceivable that a systematic appraisal and acceptance of the role of global actors in widening global inequalities and thus expediting the appearance of violent and protracted forms of intra-state conflict could eventually manifest and coalesce with R2P. With regard to the latter, meanwhile, this is evidenced by the fact that concerns with global human rights, atrocity prevention and, in particular, human protection have already begun to merge with a state’s perception of its national interest. The EU, UN and, in addition, R2P have all come to provide the institutional building blocks for the adoption of a more ideational form of interests at the global constitutional level. With human protection concerns potentially offering as legitimate a basis for self-interest as the broader political and economic inclinations of powerful states, the proposal to modify a state’s perception of its national interest could have significant and positive implications for the relationship between R2P and both the cosmopolitan approach to human protection and Habermas’ global constitutional paradigm. At the same time, it would help to perpetuate the minimal moral and legal progress thus far made towards a more cosmopolitan approach to human protection and, normatively speaking, heighten the sense of enthusiasm that surrounds the evolution towards this cosmopolitan typology in the post-Cold War period.

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Alongside its comprehensive and robust examination of the relationship between the doctrine and both the cosmopolitan form of human protection and Habermas’ constitutional cosmopolitan approach, the monograph has also touched upon a number of broader themes and ideas which it is hoped will provoke further debate, discussion and academic research on R2P and these respective cosmopolitan typologies. It has alluded, for example, to the absence of any reference to the protection afforded to stateless people under the auspices of either cosmopolitan human protection or Habermas’ global constitutional model; to the sense of ambiguity and selectivity attached to the terminology of ‘manifest failure’, which once again ties into deliberations over the discretionary and ad hoc nature of R2P’s normative language and rhetoric; to the relationship between the doctrine and humanitarian intervention in Cote D’Ivoire in 2011, which can be understood to further validate the claim that R2P has weakened the possibility of human protection concerns being used as a smokescreen for the pursuit of negative imperialist trends and, more specifically, the self-interested inclinations of powerful states; and, finally, to whether or not regime change was the appropriate response and most effective method of securing the safety of the civilian population in Libya under the aegis of Operation Unified Protector. The introduction to this book also made reference to Donald Trump’s plans to cut contributions to UN peacekeeping operations, his new ‘four pillar’ approach to national security and the US withdrawal from the United Nations Human Rights Council. Whilst the USA has carried out airstrikes against a Syrian airbase and government sites in response to chemical weapons attacks in Kahn Sheikhoun and Douma respectively, the Trump presidency has, in theory, heralded a shift in US foreign policy and, potentially, a move away from the language of human rights and the importance of such international institutions as R2P. Of particular relevance, however, is the impact of context and complexity on the future development and progress of R2P. As discussed in Chapter 5, the implementation of R2P’s legal and conceptual principles—and, at the same time, its adherence to cosmopolitan humanitarian demands, specifically in relation to cosmopolitan criminal justice—remains dependent upon a broad range of context-specific factors. As demonstrated by the UN’s decision to sanction Chapter VII measures in Libya and, conversely, the international community’s anaemic response to the atrocities being committed in Syria, these factors include the role of regional organisations, the international and domestic

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standing of political regimes and both the clarity of threat and short time frame for international action. Furthermore, the collapse of the state, the actions of insurgents and religious extremists and the ensuing refugee crisis in Libya, alongside the declaration by ISIS of the capital of its self-proclaimed caliphate in Raqqa in 2014, are testament to the complexity of modern conflict and, more broadly, of responding to largescale human rights crises within endemically weak and abusive states. Such complexities have yet to be adequately recognised and addressed by R2P, either in theory or in practice. In summary, context and complexity are—and remain—very tangible barriers to the continued evolution of R2P and, whilst alluded to in the existing literature, no academic has yet to put forward proposals that could potentially overcome such restrictive and inhibitive factors. At the same time, by acknowledging the implications of context and complexity for both the theory and practice of R2P, it is envisaged that this monograph will prompt further research which, at the very least, would help to enhance international consensus on the doctrine and consequently strengthen the operationalisation of its legal and conceptual principles. Furthermore, increased agreement amongst UN member states over the implementation of R2P could see the doctrine more regularly translate into practice its re-conceptualisation of state sovereignty, increase the relevance of the vision of cosmopolitan criminal justice intimately bound up with R2P, provide a platform for the cogent and consistent application of the doctrine’s delineated thresholds for intervention and, finally, help to remedy the absence of a secondary international responsibility to protect in instances of genocide, war crimes, ethnic cleansing and crimes against humanity. Thus, and as either as an intention or by-product, additional research on R2P could, in turn, have further significant and positive implications for the relationship between the doctrine and both the cosmopolitan form of human protection and Habermas’ constitutional ­cosmopolitan approach.

Bibliography

Abbott, C., ‘Rights and Responsibilities: The Dilemma of Humanitarian Intervention’. Global Dialogue, 7 (2005), pp. 1–11. Adams, S., ‘R2P and the Libya Mission’ (Los Angeles Times, 2011). http://www. responsibilitytoprotect.org/index.php/crises/190-crisis-in-libya/3684-simon-adams-r2p-and-libya-mission (accessed 18 September 2017). African Union, ‘The Constitutive Act’ (AU, 2000). https://au.int/sites/ default/files/pages/32020-file-constitutiveact_en.pdf (accessed 16 September 2017). African Union, ‘The Constitutive Act of the African Union: Adopted in 2000 at the Lome Summit’ (AU, 2000). http://www.au.int/en/about/constitutive_act (accessed 15 January 2010). Ahmed, N., ‘Iraq Invasion Was About Oil’ (The Guardian, 2014). https:// www.theguardian.com/environment/ear th-insight/2014/mar/20/ iraq-war-oil-resources-energy-peak-scarcity-economy (accessed 26 October 2017). Alaaldin, R., and B. Khan, ‘Airstrikes on Isis Targets in Syria and Iraq Are Legal Under International Law’ (LSE, 2015). http://blogs.lse.ac.uk/usappblog/2014/10/01/airstrikes-on-isis-targets-in-syria-and-iraq-are-legal-under-international-law/ (accessed 15 April 2015). Alberth, J., and H. Carlsson, ‘Cosmopolitanism, State Sovereignty and UN Reform 2003–2005’ (Linkoping University, 2008). www.iei.liu.se/ stat/…/c…/C-uppsatsJohanAlberthHenningCarlsson.pdf (accessed 12 December 2010). © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0

243

244  Bibliography Alvarez, J., ‘International Organisations: Then and Now’. American Journal of International Law, 100 (2006), pp. 324–47. Amerasinghe, F., Principles of the Institutional Law of International Organisations (Cambridge, Cambridge University Press, 2005). Amnesty International, ‘Syria 2016–2017: Annual Report’ (Amnesty International, 2017). https://www.amnesty.org/en/countries/middle-eastand-north-africa/syria/report-syria/ (accessed 10 September 2017). Amnesty International, ‘Syria: Turn the Lights Back On’ (Amnesty International UK, 2015). https://www.amnesty.org.uk/actions/syria-crisis-turn-lights-bac k-four-years-aleppo?gclid=CMLX3aSr0McCFQMFwwod06sIvA (accessed 30 August 2015). Anderson-Gold, S., Cosmopolitanism and Human Rights (Cardiff, University of Wales Press, 2001). Annan, K., ‘Peacekeeping, Military Intervention and National Sovereignty in Internal Armed Conflict’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. J. Moore (Oxford, Rowman & Littlefield, 1998), pp. 55–69. Archibugi, D., ‘Cosmopolitan Guidelines for Humanitarian Intervention’. Alternatives, 29 (2004), pp. 1–21. Appiah, K. A., Cosmopolitanism: Ethics in a World of Strangers (New York, W. W. Norton, 2006). Archibugi, D., ‘Immanuel Kant, Cosmopolitan Law and Peace’. European Journal of International Relations, 1 (1995), pp. 429–56. Archibugi, D., The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton, NJ, Princeton University Press, 2008). Badescu, C., Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York, Routledge, 2010). Badescu, C., and T. Weiss, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, 11 (2010), pp. 354–74. Bain, W., ‘Responsibility and Obligation in the Responsibility to Protect’. Review of International Studies, 36 (2011), pp. 25–46. Bajwa, M., ‘Situating UN Reform in the Context of Cosmopolitanism: The Globalisation of Democracy’ (ISSI, 2005). http://www.issi.org.pk/ss_Detail. php?dataId=370 (accessed 12 December 2010). Baker, G., ‘The ‘Double Law’ of Hospitality: Rethinking Cosmopolitan Ethics in Humanitarian Intervention’. International Relations, 24 (2010), pp. 87–103. Barnett, M., and T. Weiss, Humanitarianism Contested: Where Angels Fear to Tread (Abingdon, Routledge, 2011). BBC News, ‘EU Approves Rapid Reaction Force’ (BBC, 2004). http://news. bbc.co.uk/1/hi/4034133.stm (accessed 1 March 2011). BBC News, ‘Q & A: EU Constitution’s Future’ (BBC, 2007). http://news.bbc. co.uk/1/hi/world/europe/4596005.stm (accessed 8 March 2011).

Bibliography

  245

BBC News, ‘UK Government Approved Sierra Leone Arms Deal’ (BBC, 2008). http://news.bbc.co.uk/1/hi/uk/89845.stm (accessed 31 January 2011). BBC News, ‘Q & A: Libya’s Stalled Revolution’ (BBC, 2011). http://www.bbc. co.uk/news/world-africa-12719557 (accessed 6 June 2013). BBC News, ‘Q & A: Syrian Opposition Alliance’ (BBC, 2011). http://www. bbc.co.uk/news/world-middle-east-15155804 (accessed 6 June 2013). BBC News, ‘Q & A: Syria Protests’ (BBC, 2011). http://www.bbc.co.uk/ news/world-middle-east-13374395 (accessed 6 June 2013). BBC News, ‘Q & A: The Lisbon Treaty’ (BBC, 2011). http://news.bbc. co.uk/1/hi/world/europe/6901353.stm (accessed 8 March 2011). BBC News, ‘Syria Crisis: Guide to Armed and Political Opposition’ (BBC, 2013). http://www.bbc.co.uk/news/world-middle-east-15798218 (accessed 10 August 2014). BBC News, ‘Dutch State Liable over 300 Srebrenica Deaths’ (BBC, 2014). http://www.bbc.co.uk/news/world-europe-28313285 (accessed 16 October 2014). BBC News, ‘Libyan Cabinet Minister Hassan al-Droui Killed in Sirte’ (BBC, 2014). http://www.bbc.co.uk/news/world-africa-25701470 (accessed 4 February 2014). BBC News, ‘IS Yazidi Attacks May Be Genocide’ (BBC, 2015). http://www. bbc.co.uk/news/world-middle-east-31962755 (accessed 20 June 2016). BBC News, ‘Syria Air Strikes: MPs Authorise UK Action Against Islamic State’ (BBC, 2015). http://www.bbc.co.uk/news/uk-politics-34989302 (accessed 30 June 2016). BBC News, ‘Islamic State Committed Genocide, Says US’ (BBC, 2016). http:// www.bbc.co.uk/news/world-us-canada-35831711 (accessed 20 June 2016). BBC News, ‘UN Okays Juba Troop Deployment as South Sudan Objects’ (BBC, 2016). http://www.bbc.co.uk/news/world-africa-37065836 (accessed 20 September 2016). BBC News, ‘Boris Johnson ‘Dismayed’ by Russia’s UN Syria Veto’ (BBC, 2017). http://www.bbc.co.uk/news/uk-politics-39584973 (accessed 21 May 2017). BBC News, ‘Rival East Libya Factions Battle for Crucial Oil Ports’ (BBC, 2017). http://www.bbc.co.uk/news/world-africa-39167711 (accessed 4 March 2017). BBC News, ‘Syria War: Anger after Russia Vetoes Resolution at UN’ (BBC, 2017). http://www.bbc.co.uk/news/world-europe-39585071 (accessed 21 May 2017). BBC News, ‘Syria War: Russia and China Veto Sanctions’ (BBC, 2017). http:// www.bbc.co.uk/news/world-middle-east-39116854 (accessed 21 May 2017). BBC News, ‘Trumps Budget Cuts Would Make UN Peacekeeping “Impossible”’ (BBC, 2017). http://www.bbc.co.uk/news/world-us-canada-40035837 (accessed 30 May 2017).

246  Bibliography BBC News, ‘Syria War: US Launches Missile Strikes in Response to “Chemical Attack”’ (BBC, 2017). http://www.bbc.co.uk/news/world-us-canada-39523654(accessed 16 May 2017). BBC News, ‘Trump: Russia and China “Rival Powers” in New Security Plan’ (BBC, 2018). http://www.bbc.co.uk/news/world-us-canada-42401170 (accessed 2 January 2018). Bellamy, A., and P. Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’. International Affairs, 87 (2011), pp. 825–50. Bellamy, A. et al., Understanding Peacekeeping (Oxford, Polity Press, 2003). Bellamy, A., Global Politics and the Responsibility to Protect: From Words to Deeds (New York, Routledge, 2011). Bellamy, A. ‘Legality, Legitimacy and Human Protection: International Intervention Against ISIS in Syria’ (IPI Global Observatory, 2014). https:// theglobalobservatory.org/2014/10/legality-legitimacy-human-protection-international-intervention-isis-syria-r2p/ (accessed 20 June 2016). Bellamy, A., ‘Libya and the Responsibility to Protect: The Exception and the Norm’. Ethics and International Affairs, 25 (2011), pp. 263–69. Bellamy, A., ‘R2P—Dead or Alive?’ (ISN, 2012). http://www.isn.ethz.ch/ Digital-Library/Publications/Detail/?Ing=en&id=155246 (accessed 15 September 2013). Bellamy, A., ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq’. Ethics and International Affairs, 19 (2005), pp. 31–54. Bellamy, A., ‘The Responsibility to Protect: Added Value or Hot Air?’ Cooperation and Conflict, 48 (2013), pp. 333–57. Bellamy, A., ‘The Responsibility to Protect and the Problem of Military Intervention’. International Affairs, 84 (2008), pp. 615–39. Bellamy, A., ‘The Responsibility to Protect and the Problem of Regime Change’ (E-International Relations, 2011). http://www.e-ir.info/2011/09/27/theresponsibility-to-protect-and-the-problem-of-regime-change (accessed 14 April 2013). Bellamy, A., The Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge, Polity Press, 2009). Benhabib, S., ‘Hospitality, Sovereignty and Democratic Iterations’, in Another Cosmopolitanism, ed. R. Post (Oxford, Oxford University Press, 2006), pp. 147–177. Bhagwati, J., In Defence of Globalisation (Oxford, Oxford University Press, 2004). Bignell, P., ‘Secret Memos Expose Link Between Oil Firms and Invasion of Iraq’ (The Independent, 2011). http://www.independent.co.uk/news/ uk/politics/secret-memos-expose-link-between-oil-firms-and-invasion-ofiraq-2269610.html (accessed 26 October 2017).

Bibliography

  247

Boreham, K., ‘Libya and R2P: The Limits of Responsibility’ (East Asia Forum, 2011). http://www.eastasiaforum.org/2011/03/31/libya-and-r2p-the-limits-of-responsibility/ (accessed 6 February 2012). Borger, J., ‘Libya No-Fly Resolution Reveals Global Split in UN’ (The Guardian, 2011). http://www.theguardian.com/world/2011/mar/18/libya-no-fly-resolution-split (accessed 7 August 2014). Brennan, T., ‘Cosmopolitanism and Internationalism’. New Left Review, 7 (2001), pp. 75–84. Brown, C., International Relations Theory: New Normative Approaches (New York, Columbia University Press, 1992). Brown, C., ‘Cosmopolitanism, World Citizenship and Global Civil Society’. Critical Review of International Social and Political Philosophy, 3 (2000), pp.7–26. Brown, C., ‘Selective Humanitarianism: In Defence of Inconsistency’, in Ethics and Foreign Intervention, eds. D. Chatterjee and D. Scheid (Cambridge, Cambridge University Press, 2003), pp. 31–49. Brown, G.W., and A. Bohm, ‘Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention’. European Journal of International Relations, 1 (2015), pp.1–23. Brown, G.W., Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution (Edinburgh, Edinburgh University Press, 2009). Brown, G.W., ‘Kant’s Cosmopolitanism’, in The Cosmopolitanism Reader, eds. G.W. Brown and D. Held (Cambridge, Polity Press, 2010), pp. 45–61. Brown, G.W., ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’. Legal Studies, 28 (2008), pp. 430–51. Brown, G.W., ‘Safeguarding Deliberative Global Governance: The Case of the Global Fund to Fight AIDS, Tuberculosis and Malaria’. Review of International Studies, 36 (2010), pp. 511–30. Brown, G.W., ‘The Constitutionalisation of What?’ Global Constitutionalism, 1 (2012), pp. 201–28. Brown, G.W., ‘The European Union and Kant’s Idea of Cosmopolitan Right: Why the EU Is Not a Cosmopolitan Federation’. European Journal of International Relations, 20 (2014), pp. 671–93. Brus, M., ‘Bridging the Gap Between State Sovereignty and International Governance: The Authority of Law’, in State, Sovereignty and International Governance, ed. G. Kreijen (Oxford, Oxford University Press, 2002), pp. 3–24. Buchanan, A., ‘Secession, State Breakdown and Humanitarian Intervention’, in Ethics and Foreign Intervention, eds. D. Chatterjee and D. Scheid (Cambridge, Cambridge University Press, 2003), pp. 189–215. Buchanan, A., ‘The Internal Legitimacy of Humanitarian Intervention’. Journal of Political Philosophy, 7 (1999), pp. 71–87.

248  Bibliography Buchan, R., International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013). Bull, H., ‘Society and Anarchy in International Relations’, in Diplomatic Investigations, eds. H. Butterfield and M. Wight (MA, Harvard University Press, 1968). Burg, S., The War in Bosnia: Ethnic Conflict and International Intervention (Boulder, NetLibrary, 1999). Caney, S., Justice Beyond Borders (Oxford, Oxford University Press, 2006). Capps, P., Human Dignity and the Foundations of International Law (OR, Oxford and Portland, 2009). Cabrera, L., Political Theory of Global Justice: A Cosmopolitan Case for the World State (London, Routledge, 2004). Cabrera, L., The Practice of Global Citizenship (Cambridge, Cambridge University Press, 2010). Cavallar, G., Kant and the Theory and Practice of International Right (Cardiff, University of Wales Press, 1999). Cavallar, G., ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’. Review of International Studies, 27 (2001), pp. 229–48. Cavallar, G., ‘Kant’s Society of Nations: Free Federation or World Republic?’ Journal of the History of Philosophy, 32 (1994), pp. 461–82. Cerkez, A., ‘Bosnia Court Releases Genocide Convicts’ (Twin Cities Press, 2013). http://www.twincities.com/news/ci24553525/bosnia-court-releases-genocide-convicts (accessed 16 October 2014). Cerny, P., ‘Neo-medievalism, Civil War and the New Security Dilemma: Globalisation as Durable Disorder’. Civil Wars, 1 (1998), pp. 36–64. Chafos, T., ‘The European Union’s Rapid Reaction Force and the North Atlantic Treaty Organisation Response Force: A Rational Division of Labour for European Security’ (Faculty of the US Army, 2003). http://www.dtic. mil/cgi-bin/GetTRDoc?AD=ADA416120 (accessed 31 January 2013). Chandler, D., From Kosovo to Kabul: Human Rights and International Intervention (London, Pluto Press, 2002). Chandler, D., ‘Resilience and Human Security: The Post-interventionist Paradigm’. Security Dialogue, 43 (2012), pp. 213–29. Chandler, D., ‘The Limits of Human Rights and Cosmopolitan Citizenship’, in Rethinking Human Rights: Critical Approaches to Human Rights, ed. D. Chandler (Basingstoke, Palgrave Macmillan, 2002), pp. 115–35. Chandler, D., ‘The Paradox of the Responsibility to Protect’. Cooperation and Conflict, 45 (2010), pp. 128–34. Chatterjee, D., ‘Foreign Policy, Human Rights and “Preventive Nonintervention”’, in Between Cosmopolitan Ideals and State Sovereignty, eds. R. Tinnevelt and G. Verschraegen (Basingstoke, Palgrave Macmillan, 2006), pp. 234–44.

Bibliography

  249

Chesterman, S., Just War or Just Peace? Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001). Chigbo, C., ‘The Libyan Conflict in Perspective’ (TNV, 2011). http://www. thenigerianvoice.com/nvnews/47442/1/the-libyan-conflict-in-perspective. html (accessed 6 June 2013). Christiansen, D., and G. Powers, ‘Send in the Peacekeepers: Sovereignty Isn’t Sacred’ (High Beam Research, 1997). http://www.highbeam.com/ doc/1G1-19277989.html (accessed 22 December 2010). Chomsky, N., ‘Statement by Professor Noam Chomsky to the United Nations General Assembly—Thematic Dialogue on the Responsibility to Protect’ (UN, 2009). http://www.un.org/ga/president/63/interactive/protect/ noam.pdf (accessed 30 July 2010). Chomsky, N., The New Military Humanism: Lessons from Kosovo (London, Pluto Press, 1999). Collins, B., ‘New Wars and Old Wars? The Lessons of Rwanda’, in Rethinking Human Rights: Critical Approaches to Human Rights, ed. D. Chandler (Basingstoke, Palgrave Macmillan, 2002), pp. 157–75. Collins, R., ‘Thinking about Libya, the Responsibility to Protect and Regime Change’ (WFMC, 2011). http://worldfederalistscanada.org/wfmcDraftLibyaRC5_oct19%204.pdf (accessed 18 May 2012). Covell, C., Kant and the Law of Peace: A Study in the Philosophy of International Law and International Relations (New York, Palgrave, 1998). Cox, R., Production, Power and Global Order: Social Forces in the Making of History (New York, Columbia University Press, 1987). Cramer, P., ‘Reflections on European Effective Multilateralism and the Use of Force’, in Beyond the Established Legal Borders, eds. Malcolm Evans and Panos Koutrakos (Oxford, Hart Publishing, 2011), pp. 225–47. Crawford, N. et al., ‘Roundtable: Humanitarian Intervention After 9/11’ International Relations, 19 (2005), pp. 211–50. Curran, D., and T. Woodhouse, ‘Cosmopolitan Peacekeeping and Peacebuilding in Sierra Leone: What Can Africa Contribute?’ International Affairs, 83 (2007), pp. 1055–70. Daalder, I.H., and J.G. Stavridis, ‘NATO’s Victory in Libya’ (Foreign Affairs, 2012). https://www.foreignaffairs.com/articles/libya/2012-02-02/natosvictory-libya (accessed 20 January 2016). Dalal, N., ‘The R2P Is Dead. Long Live the R2P. Libya, Syria, and the Responsibility to Protect’ (Seton Hall, 2013). http://scholarship.shu.edu/ cgi/viewcontent.cgi?article=1208&context=student_scholarship (accessed 13 September 2013). Dallaire, R., ‘The End of Innocence’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. J. Moore (Oxford, Rowman & Littlefield, 1998), pp. 71–86.

250  Bibliography Delanty, G., Citizenship in a Global Age (Buckingham, Open University Press, 2000). Delanty, G., ‘Cosmopolitanism and Violence: The Limits of Global Civil Society’. European Journal of Social Theory, 41 (2001), pp. 41–52. De Mello Barreto, J.P., ‘The Dubious Legality of Responding to Isil’ (Columbia Undergraduate Law Review, 2014). http://blogs.cuit.columbia.edu/ culr/2014/12/01/the-dubious-legality-of-responding-to-isil/ (accessed 15 April 2015). De Witte, B., ‘The EU and the International Legal Order: The Case of Human Rights’, in Beyond the Established Legal Borders, eds. Malcolm Evans and Panos Koutrakos (Oxford, Hart Publishing, 2011), pp. 127–47. Directorate-General for External Policies of the Union, ‘The EU Battlegroups’ (European Parliament, 2006). http://www.europarl.europa.eu/meetdocs/2009_2014/documents/sede/dv/sede030909notebattkegroups_/sede030909notebattlegroups_en.pdf (accessed 9 May 2013). Directorate-General for External Policies of the Union, ‘The European Security and Defence Policy: From the Helsinki Headline Goal to the EU Battlegroups’ (European Parliament, 2006). http://www.europarl.europa. eu/meetdocs/2009_2014/documents/sede/dv/sede030909noteesdp_/ sede030909noteesdp_en.pdf (accessed 27 February 2013). Donald, D., ‘The Doctrine Gap: The Enduring Problem of Contemporary Peace Support Operations Thinking’, in Dimensions of Western Military Intervention, eds. C. McInnes and N. Wheeler (London, Frank Cass, 2002), pp. 107–31. Donia, R., and J. Fine, Bosnia-Herzegovina: A Tradition Betrayed (London, Hurst, 1994). Donnelly, J., International Human Rights (Boulder, University of Colorado Press, 1998). Donnelly, J., Realism and International Relations (Cambridge, Cambridge University Press, 2000). Doyle, M., ‘International Ethics and the Responsibility to Protect’. International Studies Review, 13 (2011), pp. 72–84. Doyle, M., ‘Kant and Liberal Internationalism’, in Toward Perpetual Peace and Other Writings on Politics, Peace and History, ed. P. Kleingeld (New Haven, Yale University Press, 2006). Doyle, M., ‘Kant, Liberal Legacies and Foreign Affairs’. Philosophy and Public Affairs, 12 (1983), pp. 205–35. Doyle, M., ‘The Politics of Humanitarianism: The Responsibility to Protect Before and After Libya’. International Politics, 53 (2015), pp. 14–31. Duffield, M., Global Governance and the New Wars: The Merging of Development and Security (London, Zed Books, 2001). Dunne, T., and J. Gifkins, ‘Libya and the State of Intervention’. Australian Journal of International Affairs, 65 (2011), pp. 515–29.

Bibliography

  251

Dunne, T., ‘Leading from the Front: America, Libya and the Localisation of R2P’. Cooperation and Conflict, 50 (2014), pp. 29–49. Economides, S., and P. Taylor, ‘Intervention in Former Yugoslavia’, in The New Interventionism: 1991–1994, ed. J. Mayall (Cambridge, Cambridge University Press, 1996), pp. 59–93. Elliott, L., ‘Cosmopolitan Ethics and Militaries as “Forces for Good”’, in Forces for Good: Cosmopolitan Militaries in the Twenty-First Century, eds. L. Elliott and G. Cheeseman (Manchester, Manchester University Press, 2004), pp. 17–33. Ethridge, M., ‘Introduction: A Science of Politics’, in The Political Research Experience, ed. M. Ethridge (Abingdon, Routledge, 2001). Evans, G. et  al., ‘Correspondence: Humanitarian Intervention and the Responsibility to Protect’. International Security, 37 (2013), pp. 199–214. Evans, G., ‘From Humanitarian Intervention to the Responsibility to Protect’ (International Crisis Group, 2006). http://www.crisisgroup.org/en/publication-type/speeches/2006/from-humanitarian-intervention-to-the-responsibility-to-protect.aspx (accessed 4 March 2013). Fabre, C., ‘Cosmopolitanism, Just War Theory and Legitimate Authority’. International Affairs, 84 (2008), pp. 963–76. Fabre, C., Cosmopolitan War (Oxford, Oxford University Press, 2012). Falk, R., Achieving Human Rights (New York, Routledge, 2009). Falk, R., Human Rights Horizons: The Pursuit of Justice in a Globalising World (London, Routledge, 2000). Falk, R., On Humane Governance: Towards a New Global Politics (University Park, Pennsylvania University Press, 1995). Fearon, J., and D. Laitin, ‘Violence and the Social Construction of Ethnic Identity’. International Organisation, 54 (2000), pp. 845–77. Fine, R., and W. Smith, ‘Jürgen Habermas’ Theory of Cosmopolitanism’. Constellations, 10 (2003), pp. 469–87. Fine, R., ‘Cosmopolitanism and Human Rights: Radicalism in a Global Age’. Metaphilosophy, 40 (2009), pp. 8–23. Fine, R., ‘Cosmopolitanism and Violence: Difficulties of Judgement’. British Journal of Sociology, 57 (2006), pp. 49–67. Fine, R., Cosmopolitanism: Key Ideas (London, Routledge, 2007). Finnemore, M., and K. Sikkink, ‘International Norm Dynamics and Political Change’. International Organisation, 52 (1998), pp. 887–917. Flock, E., ‘Syria’s Revolution: A Revolt Brews Against Bashar al-Assad’s Regime’ (Washington Post, 2011). http://www.washingtonpost.com/blogs/ blogpost/post/syria-revolution-revolt-against-bashar-al–assads-regime/2011/03/15/ABrwNEX_blog.html (accessed 6 June 2013). Foley, C., The Thin Blue Line: How Humanitarianism Went to War (New York, Verso, 2010).

252  Bibliography Fox, F., ‘Conditioning the Right to Humanitarian Aid? Human Rights and the “New Humanitarianism”’, in Rethinking Human Rights: Critical Approaches to Human Rights, ed. D. Chandler (Basingstoke, Palgrave Macmillan, 2002), pp. 19–37. Franceschet, A., ‘Kant, International Law and the Problem of Humanitarian Intervention’. Journal of International Political Theory, 6 (2010), pp. 1–22. Gallagher, A., Genocide and Its Threat to Contemporary International Order (Basingstoke, Palgrave Macmillan, 2013). Gallagher, A. ‘What Constitutes a ‘Manifest Failing’? Ambiguous and Inconsistent Terminology and the Responsibility to Protect’. International Relations, 28 (2014), pp. 428–44. Gartner, H., ‘The Responsibility to Protect and Libya’ (OIIP, 2011). http://www.oiip.ac.at/fileadmin/Unterlagen/Dateien/Kurzanalysen/ Responsibility_to_Protect_and_Libya.pdf (accessed 5 September 2013). Gerring, J., ‘What Is a Case Study and What Is It Good For?’ American Political Science Review, 98 (2004), pp. 341–54. Ghadban, N., ‘The War on Iraq: Justifications and Motives’ (Al Jazeera, 2003). http://www.aljazeera.com/archive/2003/08/2008410151856461833.html (accessed 26 October 2017). Gilbert, P., New Terror, New Wars (Edinburgh, Edinburgh University Press, 2003). Gill, S., ‘Constitutionalising Inequality and the Clash of Globalisations’. International Studies Review, 4 (2002), pp. 47–65. Gilmore, J., ‘Protecting the Other: Considering the Process and Practice of Cosmopolitanism’. European Journal of International Relations, 20 (2014), pp. 694–719. Gilmore, J., The Cosmopolitan Military: Armed Forces and Human Security in the 21st Century (Basingstoke, Palgrave Macmillan, 2015). Gilpin, R., ‘A Realist Perspective on International Governance’, in Governing Globalisation: Power, Authority and Global Governance, eds. David Held and Anthony McGrew (Cambridge, Polity Press, 2002), pp. 237–47. Glanville, L., ‘In Defence of the Responsibility to Protect’. Journal of Religious Ethics, 41 (2013) pp. 169–82. Glanville, L., ‘The Responsibility to Protect Beyond Borders’. Human Rights Law Review, 12 (2012), pp. 1–32. Global Centre for the Responsibility to Protect, ‘About R2P’ (GCR2P, 2016). http://www.globalr2p.org/about_r2p (accessed 20 January 2016). Global Centre for the Responsibility to Protect, ‘Early Warning, Assessment and the Responsibility to Protect: Informal Interactive Dialogue of the General Assembly’ (GCR2P, 2010). http://www.globalr2p.org/resources/342 (accessed 13 December 2010).

Bibliography

  253

Global Centre for the Responsibility to Protect, ‘Sudan: Fulfilling the Responsibility to Protect’ (GCR2P, 2010). http://responsibilitytoprotect. org/Sudan-%20Fulfilling%20the%20Responsibility%20to%20Protect.pdf (accessed 13 December 2010). Global Centre for the Responsibility to Protect, ‘UN Security Council Resolutions Referencing R2P’ (GCR2P, 2016). http://www.globalr2p.org/ resources/335 (accessed 27 February 2018). Global Security, ‘Operation Inherent Resolve’ (GS, 2015). http://www.globalsecurity.org/military/ops/inherent-resolve.htm (accessed 15 April 2015). Gow, J., ‘International Engagement and the Yugoslav War of Dissolution’, in International Intervention in Local Conflicts: Crisis Management and Conflict Resolution Since the Cold War, ed. Uzi Rabi (New York, I.B. Tauris, 2010), pp. 53–75. Graubart, J., ‘R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests’. Human Rights Quarterly, 35 (2013), pp. 69–90. Grigorian, A., ‘Third-Party Intervention and Escalation in Kosovo: Does Moral Hazard Explain it?’, in Gambling on Humanitarian Intervention: Moral Hazard, Rebellion and Civil War, eds. T. Crawford and A. Kuperman (Abingdon, Routledge, 2006), pp. 45–61. Guerin, O., ‘Tripoli Holds Its Breath as New Libya Government Seeks Unity’ (BBC, 2016). http://www.bbc.co.uk/news/world-africa-36072826 (accessed 20 June 2016). Guterres, A., ‘Implementing the Responsibility to Protect: Accountability for Prevention’ (UN, 2017). http://www.globalr2p.org/media/files/un-secretary-general-2017-report-on-r2p-en.pdf (accessed 27 February 2018). Habermas, J., Between Naturalism and Religion (Cambridge, Polity Press, 2008). Habermas, J., The Divided West (Cambridge, Polity Press, 2006). Habermas, J., ‘The Postnational Constellation and the Future of Democracy’, in The Postnational Constellation: Political Essays, ed. M. Pensky (Massachusetts, MIT Press, 1998), pp. 58–113. Harrison, G., ‘No More Rwandas? The Manifest Failings of R2P in Theory and Practice’ (forthcoming), pp. 1–25. Hayden, P., ‘Security Beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory’, in Just War Theory: A Reappraisal, ed. M. Evans (Edinburgh, Edinburgh University Press, 2005), pp. 157–77. Heater, D., ‘Does Cosmopolitan Thinking Have a Future?’, in How Might We Live? Global Ethics in a New Century, eds. K. Booth et al. (Cambridge, Cambridge University Press, 2001), pp. 179–99. Heater, D., World Citizenship: Cosmopolitan Thinking and Its Opponents (London, Continuum, 2004).

254  Bibliography Hehir, A., and A. Lang, ‘The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect’. Criminal Law Forum, 26 (2015), pp. 153–79. Hehir, A., and J. Pattison, ‘Introduction: The Responsibility to Protect After the Arab Spring’. Cooperation and Conflict, 51 (2016), pp. 141–47. Hehir, A., Humanitarian Intervention: An Introduction (London, Palgrave Macmillan, 2013). Hehir, A., ‘Introduction: Libya and the Responsibility to Protect’, in Libya, the Responsibility to Protect and the Future of Humanitarian Intervention, eds. A. Hehir and R. Murray (Basingstoke, Palgrave Macmillan, 2013). Hehir, A., ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’. International Security, 38 (2013), pp. 137–59. Hehir, A., The Responsibility to Protect: Rhetoric, Reality and the Future of Humanitarian Intervention (Basingstoke, Palgrave Macmillan, 2012). Held, D., and A. McGrew, ‘Introduction’, in Governing Globalisation: Power, Authority and Global Governance, eds. D. Held and A. McGrew (Cambridge, Polity Press, 2002), pp. 1–19. Held, D., Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Stanford University Press, 1995). Held, D., ‘The Transformation of Political Community: Rethinking Democracy in the Context of Globalisation’, in Global Citizenship: A Critical Reader, eds. N. Dower and J. Williams (Edinburgh, Edinburgh University Press, 2002), pp. 92–100. Hilpold, P., ‘Intervening in the Name of Humanity: R2P and the Power of Ideas’. Journal of Conflict and Security Law, 17 (2012), pp. 49–79. Hirsch, D., Law Against Genocide: Cosmopolitan Trials (London, Glasshouse Press, 2003). History World, ‘History of Rwanda’ (History World, 2014). http://www.historyworld.net/wrldhis/plaintexthistories.asp?historyid=ad24 (accessed 24 November 2014). Hobson, C., ‘Responding to Failure: The Responsibility to Protect After Libya’. Millennium Journal of International Studies, 44 (2016), pp. 433–54. Holzgrefe, J.L., ‘The Humanitarian Debate’, in Humanitarian Intervention: Ethical, Legal and Political Dilemmas, eds. R. Keohane and J.L. Holzgrefe (Cambridge, Cambridge University Press, 2003). Honig, J., and N. Both, Srebrenica: Record of a War Crime (London, Penguin, 1996). Howorth, J., Security and Defence Policy in the European Union (Basingstoke, Palgrave Macmillan, 2007). Hudson, M., ‘How Western Military Interventions Shaped the Brexit Vote’ (Real News, 2016). http://therealnews.com/t2/index.php?option=com_content &task=view&id=31&Itemid=74&jumival=1661 (accessed 30 May 2017).

Bibliography

  255

Hurrell, A., ‘Kant and the Kantian Paradigm in International Relations’. Review of International Studies, 16 (1990), pp. 183–205. Hurrell, A., On Global Order: Power, Values, and the Constitution of International Society (Oxford, Oxford University Press, 2007). ICISS, ‘Report of the International Commission on Intervention and State Sovereignty’ (International Development Research Centre, 2001). http:// responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 12 December 2010). Ignatieff, M., Blood and Belonging: Journeys into the New Nationalism (London, Vintage, 1994). Ignatieff, M., Virtual War: Kosovo and Beyond (London, Vintage, 2001). Imber, M., ‘The UN and Global Citizenship’, in Global Citizenship: A Critical Reader, eds. N. Dower and J. Williams (Edinburgh, Edinburgh University Press, 2002), pp. 114–24. Immanuel Kant: Fundamental Principles of the Metaphysics of Morals, ed. & trans. T.K. Abbott (New York, Prometheus Books, 1987). Immanuel Kant: Perpetual Peace and Other Essays on Politics and Morals, ed. & trans. T. Humphrey (Indianapolis, Hackett Publication Company, 1983). Immanuel Kant: Perpetual Peace, ed. & trans. L.W. Beck (New York, Liberal Arts Press, 1957). Independent International Commission of Inquiry on Syria, ‘About the Commission of Inquiry’ (UNOHCHR, 2011 & 2012). http://www.ohchr. org/EN/HRBodies/HRC/IICISyria/Pages/AboutCoI.aspx (accessed 15 January 2016). International Coalition for the Responsibility to Protect, ‘An Introduction to the Responsibility to Protect’ (ICRtoP, 2010). http://www.responsibilitytoprotect.org/index.php/about-rtop (accessed 12 December 2010). International Coalition for the Responsibility to Protect, ‘Joint Office of the Special Adviser on the Prevention of Genocide and the Responsibility to Protect’ (ICRtoP, 2013). http://www.responsibilitytoprotect.org/index. php/component/content/article/3618 (accessed 14 October 2013). International Criminal Court, ‘Rome Statute of the International Criminal Court’ (ICC, 2002), http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be940a655eb30e16/0/rome_statute_english.pdf (accessed 13 September 2013). Ivison, D., ‘Emergent Cosmopolitanism: Indigenous Peoples and International Law’, in Between Cosmopolitan Ideals and State Sovereignty, eds. R. Tinnevelt and G. Verschraegen (Basingstoke, Palgrave Macmillan, 2006), pp. 120–35. Jacoby, W., and C. Jones, ‘The EU Battle Groups in Sweden and the Czech Republic: What National Defence Reforms Tell Us About European Rapid Reaction Capabilities’. European Security, 17 (2008), pp. 315–38. Jakobsen, P., ‘The Transformation of United Nations Peace Operations in the 1990s: Adding Globalisation to the Conventional “End of the Cold War” Explanation’. Co-operation and Conflict, 37 (2002), pp. 267–82.

256  Bibliography Jamison, M., ‘Humanitarian Intervention Since 1990 and Liberal Interventionism’, in Humanitarian Intervention: A History, ed. B. Simms (Cambridge, Cambridge University Press, 2011), pp. 365–80. Johnson, J., and R. Joslyn, Political Science Research Methods (Washington, CQ Press, 2008). Jones, B., Peacemaking in Rwanda: The Dynamics of Failure (London, Lynne Rienner, 2001). Jones, C., Global Justice: Defending Cosmopolitanism (Oxford, Oxford University Press, 1999). Jung, D., ‘A Political Economy of Intra-State War’, in Shadow Globalization, Ethnic Conflicts and New Wars : A Political Economy of Intra-State War, ed. D. Jung (London, Routledge, 2003), pp. 7–21. Kaldor, M., ‘A Decade of the War on Terror and the Responsibility to Protect’, in Global Civil Society: Ten Years of Critical Reflection, eds. M. Kaldor et al. (London, Palgrave Macmillan, 2012), pp. 88–110. Kaldor, M., ‘Cosmopolitanism and Organised Violence’ (Global Site, 2000). http://www.theglobalsite.ac.uk/press/010kaldor.htm (accessed 22 February 2010). Kaldor, M., Global Civil Society: An Answer to War (Cambridge, Polity Press, 2003). Kaldor, M., New and Old Wars: Organised Violence in a Global Era (Stanford, Stanford University Press, 2007). Kaldor, M., ‘Transnational Civil Society’, in Human Rights in Global Politics, eds. T. Dunne and N. Wheeler (Cambridge, Cambridge University Press, 1999), pp. 195–214. Kelly, E., ‘Human Rights as Foreign Policy Imperatives’, in The Ethics of Assistance: Morality and the Distant Needy, ed. D. Chatterjee (Cambridge, Cambridge University Press, 2004), pp. 177–89. Kertcher, C., ‘Same Agenda, Different Results: The UN Interventions in Cambodia and Somalia After the Cold War’, in International Intervention in Local Conflicts: Crisis Management and Conflict Resolution Since the Cold War, ed. U. Rabi (New York, I.B. Tauris, 2010), pp. 19–33. Klabbers, J., An Introduction to International Institutional Law (Cambridge, Cambridge University Press, 2009). Klinghoffer, A., The International Dimension of Genocide in Rwanda (Basingstoke, Macmillan, 1998). Kocadal, O., ‘R2P and Syria: Why Inaction?’ (ThinkIR, 2011). http://www. thinkir.co.uk/r2p-and-syria-why-inaction/ (accessed 6 February 2012). Koenig-Archibugi, M., ‘Introduction: Globalisation and the Challenge to Governance’, in Taming Globalisation: Frontiers of Governance, eds. M. Koenig-Archibugi and D. Held (Cambridge, Polity Press, 2003), pp. 1–18.

Bibliography

  257

Kokott, J., ‘Human Rights Situation in Kosovo 1989–1999’, in Kosovo and the International Community: A Legal Assessment, ed. C. Tomuschat (London, Kluwer International, 2002), pp. 1–35. Kratochwil, F.V., Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge, Cambridge University Press, 1991). Kumm, M., ‘The Legitimacy of International Law: A Constitutionalist Framework for Analysis’. European Journal of International Law, 15 (2004), pp. 907–31. Kuper, A., Democracy Beyond Borders: Justice and Representation in Global Institutions (New York, Oxford University Press, 2006). Kuperman, A., The Limits of Humanitarian Intervention: Genocide in Rwanda (Washington, Brookings Institution Press, 2001). Kyriakou, D., ‘Civil Society and Civil War in Bosnia’, in Civil-Military Relations in the Soviet and Yugoslav Successor States, eds. C. Danopoulos and D. Zirker (Oxford, Westview Press, 1996), pp. 34–66. Labonte, M.T., ‘Whose Responsibility to Protect? The Implications of Double Manifest Failure for Civilian Protection’. International Journal of Human Rights, 16 (2012), pp. 982–1002. Ladzik, J., ‘EU Military and Civilian Crisis Management Operations: The First Six Years’ (Global Policy Institute, 2009). http://www.fedtrust.co.uk/filepool/Crisis_Management_Policy_Brief.pdf (accessed 14 March 2013). Leonard, R., A Short Guide to Clausewitz’ On War (London, Morrison and Gibb Limited, 1967). Lewis, I., and J. Mayall, ‘Intervention in Somalia’, in The New Interventionism: 1991–1994, ed. J. Mayall (Cambridge, Cambridge University Press, 1996), pp. 94–125. Loiselle, M.-E., ‘The Normative Status of the Responsibility to Protect After Libya’. Global Responsibility to Protect, 5 (2013), pp. 317–41. Luck, E., ‘The Responsibility to Protect: Growing Pains or Early Promise?’ Ethics and International Affairs, 24 (2010), pp. 349–65. Lyons, T., Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, Brookings Institution, 1995). Macfarlane, S.N., and Y. Khong, Human Security and the UN: A Critical History (Bloomington and Indianapolis, Indiana University Press, 2006). Mandle, J., Global Justice: An Introduction (Cambridge, Polity Press, 2006). Manheim, J. et al., Empirical Political Analysis: An Introduction to Research Methods (New York, Longman, 2005). Martin, I., ‘Hard Choices After Genocide: Human Rights and Political Failures in Rwanda’, in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. J. Moore (Oxford, Rowman & Littlefield, 1998), pp. 157–75.

258  Bibliography Mason, R., ‘How Did the UK End Up Voting to Leave the European Union?’ (The Guardian, 2016). https://www.theguardian.com/politics/2016/ jun/24/how-did-uk-end-up-voting-leave-european-union (accessed 30 May 2017). May, T., Social Research: Issues, Methods and Process (Buckingham, Oxford University Press, 1997). McGoldrick, D., ‘The Principle of Non-Intervention: Human Rights’, in The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst, eds. A.V. Lowe and C. Warbrick (London, Taylor & Francis, 1994), pp. 85–109. McGrew, A., ‘Human Rights in a Global Age: Coming to Terms with Globalisation’, in Human Rights Fifty Years On: A Reappraisal, ed. T. Evans (Manchester, Manchester University Press, 1998), pp. 188–211. Melvern, L., Conspiracy to Murder: The Rwandan Genocide (London, Verso, 2006). Mertens, T., ‘Cosmopolitanism and Citizenship: Kant Against Habermas’. European Journal of Philosophy, 4 (1996), pp. 328–47. Micallef, J., ‘The Enemy of My Enemy: Islamic State and the Internationalization of the Syrian and Iraqi Civil Wars’ (Huffington Post, 2015). http://www.huffingtonpost.com/joseph-v-micallef/the-enemy-ofmy-enemy-isl_b_6541952.html (accessed 14 February 2015). Miller, D., ‘Cosmopolitanism’, in The Cosmopolitanism Reader, eds. G. Brown and D. Held (Cambridge, Polity Press, 2010), pp. 377–93. Miller, R., ‘Respectable Oppressors, Hypocritical Liberators: Morality, Intervention and Reality’, in Ethics and Foreign Intervention, eds. D. Chatterjee and D. Scheid (Cambridge, Cambridge University Press, 2003), pp. 215–51. Mockaitis, T., ‘Civil-Military Co-operation in Peace Operations: The Case of Kosovo’ (SSI, 2004). http://www.strategicstudiesinstitute.army.mil/pubs/ summary.cfm?q=583 (accessed 12 December 2010). Moellendorff, D., Cosmopolitan Justice (Oxford, Westview Press, 2002). Moon, B.-K., ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ (UN, 2014). http://responsibilitytoprotect.org/N1446379.pdf (accessed 25 June 2014). Moon, B.-K., ‘Implementing the Responsibility to Protect: Report of the Secretary General’ (UN, 2014). http://www.unrol.org/doc.aspx?d=2982 (accessed 3 September 2013). Morris, J., ‘Libya and Syria: R2P and the Spectre of the Swinging Pendulum’. International Affairs, 89 (2013), pp. 1265–83. Nagel, T., ‘The Problem of Global Justice’, in The Cosmopolitanism Reader, eds. G. Brown and D. Held (Cambridge, Polity Press, 2010), pp. 393–413.

Bibliography

  259

Nagel, T., ‘War and Massacre’. Philosophy and Public Affairs, 1 (1972), pp. 123–44. Niemela, P., The Politics of Responsibility to Protect: Problems and Prospects (Helsinki, Erik Castren Institute, 2008). North Atlantic Treaty Organisation, ‘Peace Support Operations in Bosnia and Herzegovina’ (NATO, 2010). http://www.nato.int/cps/en/natolive/topics_52122.htm (accessed 12 December 2010). Nussbaum, M., ‘Kant and Cosmopolitanism’, in The Cosmopolitanism Reader, eds. G. Brown and D. Held (Cambridge, Polity Press, 2010), pp. 27–45. Office of Military Affairs, ‘UNSAS Website—UN Force Link’ (UN, 2013). https://cc.unlb.org/UNSAS%20Training%20Documents/TCC%20 Meeting%20UNSAS%20presentation%2030%20Jan%202013.pdf (accessed 12 August 2014). Office of the High Commissioner for Human Rights, ‘Guiding Principles on Business and Human Rights: Implementing the UN’s Protect, Respect and Remedy Framework’ (UN, 2011). http://www.ohchr.org/Documents/ Publications/GuidingPrinciplesBusinessHR_EN.pdf (accessed 15 June 2017). Office of the High Commissioner for Human Rights, ‘International Covenant on Civil and Political Rights’ (UN, 1966). http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (accessed 27 July 2015). Office of the High Commissioner for Human Rights, ‘International Covenant on Economic, Social and Cultural Rights’ (UN, 1966). http://www.ohchr. org/EN/ProfessionalInterest/Pages/CESCR.aspx (accessed 27 July 2015). Office of the High Commissioner for Human Rights, ‘International Human Rights Law’ (UN, 2010). http://www.ohchr.org/EN/ProfessionalInterest/ Pages/InternationalLaw.aspx (accessed 30 July 2010). Office of the High Commissioner for Human Rights, ‘The United Nations Human Rights Council’ (UN, 2010). http://www.ohchr.org/en/hrbodies/ hrc/pages/hrcindex.aspx (accessed 30 July 2010). Office of the Historian, ‘The Chinese Revolution of 1911’ (US Department of State, 2015). https://history.state.gov/milestones/1899-1913/chinese-rev (accessed 15 February 2015), (paras. 1–8). Official Journal of the European Union, ‘Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community’ (EU, 2007). http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri= OJ:C:2007:306:FULL&from=EN (accessed 9 May 2013). O’Leary, B., and J. McGarry, ‘Introduction: The Macro-Political Regulation of Ethic Conflict’, in The Politics of Ethnic Conflict Regulation, eds. B. O’Leary and J. McGarry (London, Routledge, 1993), pp. 1–41. Oliver, I., War & Peace in the Balkans : The Diplomacy of Conflict in the Former Yugoslavia (London, I.B. Tauris, 2005).

260  Bibliography Omorogbe, E., ‘The African Union, Responsibility to Protect and the Libyan Crisis’. Netherlands International Law Review, 59 (2012), pp. 141–163. O’Neill, O., ‘Global Justice: Whose Obligations?’, in The Ethics of Assistance: Morality and the Distant Needy, ed. D. Chatterjee (Cambridge, Cambridge University Press, 2004), pp. 242–59. Onuf, N.G., Making Sense, Making Worlds: Constructivism in Social Theory and International Relations (Abingdon, Routledge, 2013). Pape, R., ‘When Duty Calls: A Pragmatic Standard of Humanitarian Intervention’. International Security, 37 (2012), pp. 41–80. Parkev, T., ‘Debate Continues Over What Constitutes Genocide’ (World Focus, 2009). http://www.armeniandiaspora.com/showthread.php?158763-Debate-Continues-Over-What-Constitutes-Genocide (accessed 4 March 2014). Pattison, J., Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, Oxford University Press, 2010). Pattison, J., ‘The Ethics of Humanitarian Intervention in Libya’. Ethics and International Affairs, 25 (2011), pp. 271–77. Penz, P., ‘The Responsibility to Protect Militarily and Moral Escape Hatches: Alternative Intervention Modes’ (Allacademic, 2005). http://www.allacademic.com//meta/p_mla_apa_research_citation/0/6/9/7/2/pages69725/ p69725-1.php (accessed 12 December 2010). Peral, L., ‘R2P in Syria: How to Surmount the Inaction of the UN Security Council?’ (Institute for Security Studies, 2011). http://www.iss.europa.eu/ publications/detail/article/r2p-in-syria-how-to-surmount-the-inaction-ofthe-un-security-council/ (accessed 6 February 2012). Peters, A., ‘The Security Council’s Responsibility to Protect’. International Organisations Law Review, 8 (2011), pp. 1–40. Plain, M., Invoking the Responsibility to Protect: A Realist Critique (Saarbrucken, Lambert Academic Publishing, 2013). Pogge, T., ‘An Institutional Approach to Humanitarian Intervention’. Public Affairs Quarterly, 6 (1992), pp. 89–103. Pogge, T., ‘Cosmopolitanism and Sovereignty’, in The Cosmopolitanism Reader, eds. G. Brown and D. Held (Cambridge, Polity Press, 2010), pp. 114–34. Pogge, T., ‘Pre-empting Humanitarian Interventions’, in Freedom, Power and Political Morality, eds. I. Carter and M. Ricciardi (London, Palgrave, 1992), pp. 153–171. Pogge, T., ‘World Poverty and Human Rights’ (Carnegie Council, 2005). https://www.carnegiecouncil.org/publications/journal/19_1/aymposium/5109 (accessed 25 May 2017). Pogge, T., World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge, Polity Press, 2002). Prins, G., ‘Cosmopolitan Military Actions: Who Can and Will Act Now?’ in Forces for Good: Cosmopolitan Militaries in the Twenty-First Century, eds.

Bibliography

  261

L. Elliott and G. Cheeseman (Manchester, Manchester University Press, 2004), pp. 33–49. Pugh, M., ‘The Challenge of Civil-Military Relations in International Peace Operations’. Disasters, 25 (2001), pp. 345–57. Quinton-Brown, P., ‘Mapping Dissent: The Responsibility to Protect and Its State Critics’. Global Responsibility to Protect, 5 (2013), pp. 260–82. R2P Coalition, ‘History and Timeline of R2P’ (R2P Coalition, 2006). http:// r2pcoalition.org/content/view/22/48/ (accessed 12 December 2010). Ralph, J.G., and A. Gallagher, ‘Legitimacy Faultlines in International Society: The Responsibility to Protect and Prosecute After Libya’. Review of International Studies, 41 (2015), pp. 553–73. Ramsbotham, O., and T., Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge, Polity Press, 1996). Rawls, J., The Law of Peoples (Harvard, Harvard University Press, 1999). Reed, E.D., ‘Responsibility to Protect and Militarized Humanitarian Intervention: When and Why Churches Failed to Discern Moral Hazard’. Journal of Religious Ethics, 41 (2013), pp. 183–208. Reno, W., ‘Reinvention of an African Patrimonial State: Charles Taylor’s Liberia’. Third World Quarterly, 16 (1995), pp. 109–120. Reno, W., Warlord Politics and African States (London, Lynne Reinner, 1998). Reno, W., ‘War, Markets and the Reconfiguration of West Africa’s Weak States’. Comparative Politics, 29 (1997), pp. 493–510. Rice, S., and S. Patrick, ‘Index of State Weakness in the Developing World’ (Brookings, 2008). http://www.brookings.edu/research/reports/2008/ 02/weak-states-index (accessed 10 August 2014). Roberts, A., ‘The UN and Humanitarian Intervention’, in Humanitarian Intervention and International Relations, ed. J. Welsh (Oxford, Oxford University Press, 2006), pp. 71–97. Rosas, A., and L. Armati, An Introduction to EU Constitutional Law (Oxford, Hart, 2010). Rosenau, J., ‘Governance in a New Global Order’, in Governing Globalisation, eds. D. Held and A. McGrew (Cambridge, Polity Press, 2006), pp. 70–87. Rueschemeyer, D., ‘Can One or a Few Cases Yield Theoretical Gains?’ in Comparative Historical Analysis in the Social Sciences, eds. J. Mahoney and D. Rueschemeyer (Cambridge, Cambridge University Press, 2003), pp. 305–37. Saji, M., ‘On an East European Community, or Kant’s Cosmopolitan Right Reconsidered’, in Globalization and Regional Integration in Europe and Asia, ed. Dr. N.-K. Kim (Farnham, Ashgate, 2009), pp. 123–43. Sangha, K., ‘The Responsibility to Protect: A Cosmopolitan Argument for the Duty of Humanitarian Intervention’ (University of Victoria, 2012). http:// web.uvic.ca/~cpssa/articles/2012winter001.pdf (accessed 8 April 2015).

262  Bibliography Sarooshi, D., The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford, Oxford University Press, 1999). Satz, D., ‘Equality of What Among Whom? Thoughts on Cosmopolitanism, Statism and Nationalism’, in Global Justice, eds. I. Shapiro and L. Brilmayer (New York, New York University Press, 1999), pp. 67–83. Seldon, A., ‘Elite Interviews’, in The Contemporary History Handbook, eds. B. Brivati et al. (Manchester, Manchester University Press, 1996), pp. 353–66. Shapcott, R., ‘Cosmopolitan Conversations: Justice, Dialogue and the Cosmopolitan Project’. Global Society, 6 (2002), pp. 221–43. Singer, P., ‘Outsiders: Our Obligations to Those Beyond our Borders’, in The Ethics of Assistance: Morality and the Distant Needy, ed. D. Chatterjee (Cambridge, Cambridge University Press, 2004), pp. 11–29. Smith, R., ‘The Impact of Hate Media in Rwanda’ (BBC, 2003). http://news. bbc.co.uk/1/hi/world/africa/3257748.stm (accessed 24 November 2014). Smith, W., and R. Fine, ‘Anticipating a Cosmopolitan Future: The Case of Humanitarian Military Intervention’. International Politics, 44 (2008), pp. 72–89. Smith, W., and R. Fine, ‘Cosmopolitanism and Military Intervention’, in The Globalisation of Political Violence: Globalisation’s Shadow, eds. C. Hughes and R. Devetak (London, Routledge, 2008), pp. 46–67. Smith, W., and R. Fine, ‘Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Pacificum’. King’s Law Journal, 15 (2004), pp. 5–22. Snow, D., Uncivil Wars: International Security and the New Internal Conflicts (London, Lynne Rienner, 1996). Stahn, C., ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ The American Journal of International Law, 101 (2007), pp. 99–120. Strauss, E., ‘A Bird in the Hand Is Worth Two in the Bush—On the Assumed Legal Nature of the Responsibility to Protect’. Global Responsibility to Protect, 1 (2009), pp. 291–323. Surk, B., ‘Death Toll in Syria’s War Tops 160,000’ (Huffington Post, 2014). http://www.huffingtonpost.com/2014/05/19/syria-war-deathtoll_n_5353021.html (accessed 17 August 2014). Swaine, M., ‘Chinese Views of the Syrian Conflict’ (Carnegie, 2012). http:// carnegieendowment.org/2012/09/13/chinese-views-of-syrian-conflict/dtr1 (accessed 14 April 2013). Sweet, A.S., ‘A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe’. Journal of Global Constitutionalism, 1 (2012), pp. 53–90. Tacheva, B., and G. Brown, ‘Global Constitutionalism and the Responsibility to Protect’. Global Constitutionalism, 1 (2015), pp. 1–40.

Bibliography

  263

Tan, K.-C., Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (Cambridge, Cambridge University Press, 2004). Tarnogorski, R., ‘Libya and Syria: Responsibility to Protect at a Crossroads’ (PISM, 2012). https://www.pism.pl/files/?id_plik=12260 (accessed 13 September 2013). Taylor, C., Toward World Sovereignty (Maryland, University Press of America, 2002). Teitel, R., Humanity’s Law (Oxford, Oxford University Press, 2011). Terriff, T., ‘The European Rapid Reaction Force: An Embryonic Cosmopolitan Military?’, in Forces for Good: Cosmopolitan Militaries in the Twenty-First Century, eds. L. Elliott and G. Cheeseman (Manchester, Manchester University Press, 2004), pp. 150–168. Teson, F., ‘The Moral Basis of Humanitarian Intervention’, in Between Cosmopolitan Ideals and State Sovereignty, eds. R. Tinnevelt and G. Verschraegen (Basingstoke, Palgrave Macmillan, 2006), pp. 221–34. Teubner, G., ‘Societal Constitutionalism: Alternatives to State Centred Constitutional Theory’, in Transnational Governance and Constitutionalism, ed. C. Joerges et al. (Cambridge, Polity Press, 2002), pp. 3–29. Thakur, R., ‘‘R2P after Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly, 36 (2013), pp. 61–76. Thakur, R., ‘R2P, Libya and International Politics as the Struggle for Competing Normative Architectures’ (E-International Relations, 2011). http://www.e-ir. info/2011/09/07/r2p-libya-and-international-politics-as-the-struggle-for-competing-normative-architectures/ (accessed 14 April 2013). Thakur, R., The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, Cambridge University Press, 2006). The Commission on Human Security, ‘Human Security Now’ (CHS, 2003). http://reliefweb.int/sites/reliefweb.int/files/resources/91BAEEDBA50C6907C1256D19006A9353-chs-security-may03.pdf (accessed 11 February 2016). The Guardian, ‘Dutch State Liable for 300 Srebrenica Massacre Deaths’ (Guardian, 2014). http://www.theguardian.com/world/2014/jul/16/ dutch-liable-srebrenica-massacre-deaths (accessed 16 October 2014). The Guardian, ‘Syria and ISIS Committing War Crimes, Says UN’ (Guardian, 2014). https://www.theguardian.com/world/2014/aug/27/syria-isis-warcrimes-united-nations-un (accessed 20 June 2016). The High Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (UN, 2004). http://www.un.org/en/ peacebuilding/pdf/historical/hlp_more_secure_world.pdf (accessed 12 February 2016). Thomson, G., ‘The Limits of Globalisation’, in Debating Globalisation, ed. D. Held (Cambridge, Polity Press, 2005).

264  Bibliography Tidwell, A., and C. Lerche, ‘Globalisation and Conflict Resolution’. International Journal of Peace Studies, 9 (2004), pp. 47–59. Tilly, C., Coercion, Capital and European States: AD 990–1992 (Oxford, Blackwell, 1992). Tinnevelt, R., and G. Verschraegen, ‘Global Justice Between Cosmopolitan Ideals and State Sovereignty: An Introduction’, in Between Cosmopolitan Ideals and State Sovereignty, eds. R. Tinnevelt and G. Verschraegen (Basingstoke, Palgrave Macmillan, 2006), pp. 1–13. Traub, J., ‘Unwilling and Unable: The Failed Response to the Atrocities in Darfur’ (Global Centre for the Responsibility to Protect, 2010). http://responsibilitytopr otect.org/GCR2P_UnwillingandUnable TheFailedResponsetotheAtrocitiesinDarfur.pdf (accessed 12 December 2010). Traynor, I., ‘Serbian Warlord Gets Life for Crimes Against Humanity’ (The Guardian, 2009). http://www.guardian.co.uk/world/2009/jul/20/milanlukic-life-sentence (accessed 24 August 2011). Tripodi, P., The Colonial Legacy in Somalia: Rome and Mogadishu (Basingstoke, Macmillan, 1999). UN General Assembly, ‘Resolution Adopted by the General Assembly: 60/1’ (UN, 2005). http://www.ifrc.org/docs/idrl/I520EN.pdf (accessed 15 August 2013). United Nations Charter, ‘Chapter VII: Action with Respect to Threats to Peace, Breaches of the Peace, and Acts of Aggression’ (UN, 2015). http://www. un.org/en/documents/charter/chapter7.shtml (accessed 14 February 2015). United Nations, ‘Convention on the Prevention and Punishment of the Crime of Genocide’ (UN, 1948). https://treaties.un.org/doc/Publication/UNTS/ Volume%2078/volume-78-I-1021-English.pdf (accessed 13 September 2013). United Nations, ‘Letter dated 24th May 1994 from the UN Secretary General to the President of the Security Council’ (UNSC, 1994). http://www.icty. org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf (accessed 3 December 2014). United Nations, ‘Outreach Programme on the Rwanda Genocide’ (UN, 2015). http://www.un.org/en/preventgenocide/rwanda/about/preventgenocide. shtml (accessed 25 January 2015). United Nations, ‘Security Council Approves ‘No-Fly’ Zone over Libya’ (UN, 2011). http://www.un.org/News/Press/docs/2011/sc10200.doc.htm (accessed 6 February 2012). United Nations, The United Nations and Somalia 1992–1996 (New York, UN Publications, 1996). United Nations, ‘UN Peacebuilding Commission’ (UN, 2010). http://www. un.org/en/peacebuilding/ (accessed 30 July 2010).

Bibliography

  265

United Nations, ‘UN Peacekeeping’ (UN, 2010). http://www.un.org/en/ peacekeeping/ (accessed 30 July 2010). United Nations, ‘UNSC Resolution 770: Adopted by the Security Council on 13th August 1992’ (UNSC, 1992). http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/770(1992) (accessed 26 November 2014). United Nations, ‘UNSC Resolution 771: Adopted by the Security Council on 13th August 1992’ (UNSC, 1992). http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/771(1992) (accessed 26 November 2014). United Nations, ‘UNSC Resolution 794: Adopted by the Security Council on 3rd December 1992’ (UNSC, 1992). http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/794(1992) (accessed 26 November 2015). United Nations, ‘UNSC Resolution 836: Adopted by the Security Council on 4th June 1993’ (UNSC, 1993). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/836(1993) (accessed 26 November 2014). United Nations, ‘UNSC Resolution 837: Adopted by the Security Council on 6th June 1993’ (UNSC, 1993). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/837(1993) (accessed 26 November 2014). United Nations, ‘UNSC Resolution 929: Adopted by the Security Council on 22nd June 1994’ (UNSC, 1994). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/929(1994) (accessed 26 November 2014). United Nations, ‘UNSC Resolution 1973: Adopted by the Security Council on 17th March 2011’ (UN, 2011). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/1973(2011) (accessed 12 October 2013). United Nations, ‘UNSC Resolution 1975: Adopted by the Security Council on 30th March 2011’ (UN, 2011). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/1975(2011) (accessed 12 October 2013). United Nations, ‘UNSC Resolution 2014: Adopted by the Security Council on 21st October 2011’ (UN, 2011). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/2014(2011) (accessed 26 October 2016). United Nations, ‘UNSC Resolution 2085: Adopted by the Security Council on 20th December 2012’ (UNSC, 2012). http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/2085(2012) (accessed 20 September 2016). United Nations, ‘UNSC Resolution 2118: Adopted by the Security Council on 27th September 2013’ (UNSC, 2013). http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/2118(2013) (accessed 29 August 2014). United Nations, ‘UNSC Resolution 2127: Adopted by the Security Council on 3rd December 2013’ (UN, 2013). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/2127(2013) (accessed 6 September 2013). United Nations, ‘UNSC Resolution 2227: Adopted by the Security Council on 29th June 2015’ (UN, 2015). http://www.un.org/en/ga/search/view_doc. asp?symbol=S/RES/2227(2015) (accessed 25 October 2016).

266  Bibliography United Nations, ‘UNSC Resolution 2277: Adopted by the Security Council on 30th March 2016’ (UN, 2016). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/2277(2016) (accessed 26 October 2016). United Nations, ‘UNSC Resolution 2304: Adopted by the Security Council on 12th August 2016’ (UN, 2016). http://www.un.org/en/ga/search/view_ doc.asp?symbol=S/RES/2304(2016) (accessed 26 October 2016). Uvin, P., Aiding Violence: The Development Enterprise in Rwanda (Connecticut, Kumarian Press, 1998). VanHoose, H., ‘Understanding the Russian Response to the Intervention in Libya’ (Center for American Progress, 2011) https://www.americanprogress. org/issues/security/news/2011/04/12/9529/understanding-the-russianresponse-to-the-intervention-in-libya/ (accessed 7 August 2014). Vassall-Adams, G., Rwanda: An Agenda for International Action (Oxford, Oxfam Publications, 1994). Viotti, M.L.R., ‘Letter from the Permanent Representative of Brazil to the United Nations Addressed to the Secretary General’ (UN, 2011). http:// cpdoc.fgv.br/sites/default/files/2011%2011%2011%20UN%20conceptual%20paper%20on%20RwP.pdf (accessed 7 August 2014). Walker, N., ‘Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalisation of International Law’, in Multiculturalism and the Law: A Critical Debate, ed. O. Shabani (Cardiff, University of Wales Press, 2007), pp. 219–34. Walzer, M., ‘Beyond Humanitarian Intervention: Human Rights in Global Society’, in National Responsibility and Global Justice, ed. D. Miller (Oxford, Oxford University Press, 2012), pp. 251–63. Weigert, S., Traditional Religion and Guerrilla Warfare in Modern Africa (Basingstoke, Palgrave Macmillan, 1996). Weiler, J., ‘The Geology of International Law: Governance, Democracy, and Legitimacy’. Heidelberg Journal of International Law, 64 (2004), pp. 547–62. Weiner, A. et al., ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’. Global Constitutionalism, 1 (2012), pp. 1–15. Weiss, T., and C. Collins, Humanitarian Challenges and Intervention (Boulder, Westview Press, 2000). Weiss, T., Humanitarian Intervention: Ideas in Action (London, Polity Press, 2007). Weiss, T., ‘RtoP Alive and Well After Libya’. Ethics and International Affairs, 25 (2011), pp. 287–92. Wellens, K., ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections’, in Solidarity: A Structural Principle of International Law, eds. R. Wolfrum and C. Kojima (Heidelberg, Springer, 2009), pp. 3–39.

Bibliography

  267

Welsh, J., ‘Turning Words into Deeds? The Implementation of the Responsibility to Protect’. Global Responsibility to Protect, 2 (2010), pp. 149–54. Welsh, J., ‘Implementing the “Responsibility to Protect”: Where Expectations Meet Reality’. Ethics and International Affairs, 24 (2010), pp. 415–30. Welsh, J., ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into R2P’. Ethics and International Affairs, 25 (2011), pp. 255–62. Welsh, J., ‘Norm Contestation and the Responsibility to Protect’. Global Responsibility to Protect, 5 (2013), pp. 365–96. Welsh, J., ‘The Responsibility to Prevent: Assessing the Gap Between Rhetoric and Reality’. Cooperation and Conflict, 51 (2015), pp. 216–32. Welsh, J., ‘The Responsibility to Protect After Libya and Syria’. Daedalus, the Journal of the American Academy of Arts and Sciences, 145 (2016), pp. 75–87. Wessel, R.A., The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (London, Kluwer Law International, 1999). Western, J., and J.S. Goldstein, ‘Humanitarian Intervention Comes of Age’ (Foreign Affairs, 2011). https://www.foreignaffairs.com/articles/2011-11-01/humanitarian-intervention-comes-age (accessed 20 January 2016). Wheeler, N., Saving Strangers: Humanitarian Intervention in International Society (Oxford, Oxford University Press, 2000). Wheeler, N., ‘The Humanitarian Responsibilities of Sovereignty: Explaining the Development of a New Norm of Military Intervention for Humanitarian Purposes in International Society’, in Humanitarian Intervention and International Relations, ed. J. Welsh (Oxford, Oxford University Press, 2006), pp. 29–51. Wilkins, B., ‘Kant on International Relations’. The Journal of Ethics, 11 (2004), pp. 147–59. Wilkinson, P., ‘Sharpening the Weapons of Peace: Peace Support Operations and Complex Emergencies’. International Peacekeeping, 7 (2000), pp. 63–79. Williams, P., ‘Fighting for Freetown: British Military Intervention in Sierra Leone’, in Dimensions of Western Military Intervention, eds. C. McInnes and N. Wheeler (London, Frank Cass, 2002), pp. 140–67. Wilson, J., and J. Monten, ‘Does Kant Justify Liberal Intervention?’ The Review of Politics, 73 (2011), pp. 633–47. Woodhouse, T., and O. Ramsbotham, ‘Cosmopolitan Peacekeeping and the Globalisation of Security’. International Peacekeeping, 12 (2005), pp. 139–56. Woodward, P., The Horn of Africa: Politics and International Relations (London, I.B. Tauris, 2003). Yin, R., Case Study Research: Design and Methods (London, Sage, 2004).

268  Bibliography Young, I.M., ‘Violence Against Power: Critical Thoughts on Military Intervention’, in Ethics and Foreign Intervention, eds. D. Chatterjee and D. Scheid (Cambridge, Cambridge University Press, 2003), pp. 251–74. Zifcak, S., ‘The Responsibility to Protect After Libya and Syria’ (University of Melbourne, 2012). http://www.law.unimelb.edu.au/files/dmfile/downloaddad11.pdf (accessed 12 September 2012). Zifcak, S., ‘The Responsibility to Protect’, in International Law, ed. M. Evans (Oxford, Oxford University Press, 2010), pp. 504–27. Zuvela, M., ‘Bosnia Reburies Srebrenica Dead 18 Years After Massacre’ (Chicago Tribune, 2013). http://articles.chicagotribune.com/2013-07-11/news/snsrt-us-bosnia-srebrenica-20130711_1_bosnian-serb-srebrenica-massacre-bosnian-muslim (accessed 16 October 2014).

Index

A African International Support Mission in Mali (AFISMA), 83 African Union (AU), 112, 119, 139, 140, 182, 221 al-Droui, Hassan, 162, 174 Amnesty International, 40, 149 Annan, Kofi, 57, 98, 102, 117, 120, 158, 181–182, 204 Archibugi, Daniele, 11, 25, 38–44, 54, 55, 57–59, 210, 212–214, 218, 219, 221, 229, 232, 233, 235 Association of Southeast Asian Nations (ASEAN), 107 Atrocities Prevention Board (APB), 206 Atrocity prevention, 25, 26, 36, 37, 45, 49, 97, 98, 102, 110–115, 129, 132, 206–208, 216, 223, 228, 238, 239

B Bosnia-Herzegovina, 29, 30, 34, 41, 52, 53, 55, 58, 59, 77, 80, 90, 91, 98, 103, 204 Boutros-Ghali, Boutros, 123, 181 Brexit, 206 BRICS, 180, 182, 192 Brussels Convention, 73 C Central African Republic (CAR), 163, 166, 194 Chapter VI of the UN Charter, 35 Chapter VII of the UN Charter, 58, 94, 102, 160, 191 Charter of Fundamental Rights (CFR), 206 China and regime change, 181

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2019 S. J. Wyatt, The Responsibility to Protect and a Cosmopolitan Approach to Human Protection, New Security Challenges, https://doi.org/10.1007/978-3-030-00701-0

269

270  Index and state sovereignty, 84, 110, 137, 138, 160, 216 Collective human security, 101 Collective responsibility, principle of, 5, 7, 11, 13, 26, 32, 37, 49, 102, 103, 157, 203, 237 Commission on Human Security, 119 Common Security and Defence Policy (CSDP), 209, 230 Conditional state sovereignty, 5, 7, 11, 13, 26, 32, 36, 37, 49, 157, 204, 217, 237 Constitutionalisation (definition), 65, 70, 156, 157, 165, 167, 178, 181, 183, 189, 200, 216, 217, 226, 228, 237, 238 Cosmopolitan criminal justice, 26, 32, 36, 37, 39, 47, 49, 60, 127, 128, 133, 136, 137, 139, 143, 144, 157, 165, 204, 207, 217, 228, 240, 241 Cosmopolitan democracy, 41, 54, 58, 59, 200, 209, 212–214, 218, 219, 221, 222, 226, 232, 233, 235 Cosmopolitan distributive justice, 25, 26, 46, 127, 129, 131–133, 136, 142, 143, 215, 228, 239 Cosmopolitan law-enforcement, 31, 35, 37, 41, 42, 47, 56, 209 Cosmopolitan standing force, 39, 42, 209, 211 Cote D’Ivoire, 94, 148, 149, 159, 160, 166, 171–173, 191–193, 196, 197, 236, 240 Council of Experts, 40, 48 Crimes against humanity (definition), 28, 31–33, 36, 45, 80, 97, 101–104, 106, 107, 109–116, 128–131, 133, 136, 137, 143, 151, 152, 154–156, 160, 165, 166, 177, 180, 182, 183, 185, 190, 201–204, 206, 208, 210,

211, 215–217, 220, 223, 224, 228, 241 Criminal tribunals for former Yugoslavia and Rwanda, 33, 106, 114 Customary international law, 80–82, 85, 95, 152, 159, 165, 166, 217 D Darfur, 57, 59, 81, 105, 115, 117, 118, 122, 191 Democratic deficit, 212, 213, 218 Democratic Republic of Congo (DRC), 160, 163, 166, 194 Deng, Francis, 98, 111, 112, 121, 181 E Economic Community of West African States (ECOWAS), 112, 191 Egalitarianism, 27, 31 Ethnic cleansing (definition), 30, 32, 33, 36, 58, 91, 97, 101–107, 109–116, 123, 128–131, 133, 136, 137, 143, 151, 152, 154– 156, 160, 165, 166, 170, 177, 180, 182, 183, 190, 201–204, 206, 208, 210, 211, 215–217, 220, 223, 224, 228, 241 European Convention on Human Rights (ECHR), 206 European Crisis Management Capacity (CMC), 209 European Rapid Reaction Force (ERRF), 209, 232 European Security and Defence Policy (ESDP), 209, 230 European Union (EU), 71, 73, 75, 86, 186, 205–207, 209, 216, 219, 228, 239 European Union Battlegroups, 209, 230, 231

Index

F Fabre, Cecile, 21, 26, 48, 50, 51, 60 Fine, Robert, 11, 23, 25, 30, 32–38, 40–43, 45, 53–57, 68, 86, 87, 89, 90, 92, 93, 146, 209, 234, 235 Fulfilling our Collective Responsibility–International Assistance and the Responsibility to Protect (2014 report), 129, 144, 145 Functionalist theory of international law, 70 G Gaddafi, Muammar, 16, 140, 141, 160, 162, 173, 178, 180, 184–188, 190, 196, 221, 235 General Aideed, 36, 134 General Assembly (GA), 39, 78, 100, 108, 158, 159, 182, 213, 218, 219, 221, 222 Genocide Convention, 33, 80, 106, 114, 154, 165, 168 Genocide (definition), 28, 30, 32, 33, 36, 80, 97, 101–116, 128–131, 133, 136, 137, 141, 143, 151, 152, 154–156, 160, 163–166, 177, 180, 182, 183, 186, 190, 201–203, 206, 208, 210, 211, 215–217, 220, 223, 224, 228, 241 Global Centre for R2P, 108 Global democratic assembly, 213, 214, 218 Globalisation, 69, 70, 72–74, 90–92, 95, 145, 212, 232, 233, 235 Guinea, 111–113, 115, 206 Gulf Co-operation Council (GCC), 235 Guterres, Antonio, 4, 21, 130, 131, 145

  271

H Habermas, Jurgen and constitutional authorities, 72, 75, 81, 85, 152 and constitutional patriotism, 64, 73–75, 77, 79, 85, 153 and cosmopolitan human rights, 72, 75 and global constitutionalism, 63, 71, 72, 75, 81, 85, 86, 238 and globalisation, 72 and Kant, 65, 69 and a teleological approach to international law, 81, 84, 86, 189, 200 Haiti, 160 Hegemonic unilateralism, 72 Held, David, 11, 25, 41, 50, 51, 59, 60, 87, 89, 91, 95, 145, 146, 209, 210, 212–214, 218, 219, 221, 232, 233, 235 Hierarchy of law & R2P, 14, 151, 155, 156, 165 High Commissioner for Human Rights, 78, 130, 141, 168 High Level Panel, 57, 102, 113, 117, 119, 126, 158 Human emancipation, 26, 36, 37, 49, 97, 98, 102, 110, 113–115, 129, 165, 204, 208, 217, 228, 238 Humanitarian intervention, 25, 26, 28–30, 33–35, 38–40, 42, 44, 45, 48–60, 64, 81–83, 86, 91, 94, 95, 98–101, 116–120, 122–126, 128, 135, 144, 146–149, 163, 164, 168–172, 174, 176, 177, 182, 183, 189–195, 202, 218, 229, 232, 235, 236, 238, 240 Human Rights Council, 108, 131, 240 Human security, 26, 36, 37, 49, 52, 94, 97–99, 102, 104, 110, 112–115, 119, 129, 138, 147, 157, 161, 173, 203, 212, 213, 216, 238

272  Index I Ideational interests, 204, 211, 216, 220, 228, 239 Implementing the Responsibility to Protect (2009 report), 102, 129, 144, 159, 183, 194 Implementing the Responsibility to Protect–Accountability for Prevention (2017 report), 130 Independent International Commission of Inquiry on Syria, 110, 122 Individualism, 26, 31 International Commission on Intervention and State Sovereignty (ICISS), 98–102, 104, 106, 107, 116, 131, 158, 179, 182, 183, 185 International Covenant on Civil and Political Rights (ICCPR), 154, 165, 168 International Covenant on Economic, Social and Cultural Rights (ICSECR), 154, 168 International Criminal Court (ICC), 78, 80, 114, 123, 158, 184, 186 International governmental organisations (IGOs), 212, 213 International Monetary Fund (IMF), 90, 212, 213 Iraq, 38, 44, 57, 59, 80–82, 100, 101, 106–108, 114, 117, 118, 134, 163, 179, 180, 183, 191, 218, 224, 234 Islamic State, 141, 163, 175, 234 J Joint Office for Genocide Prevention and the Responsibility to Protect, 223, 224 Jurisgenerative politics, 206

K Kaldor, Mary, 11, 23, 25, 30, 32–36, 38, 41–43, 45, 53–58, 61, 90, 91, 209 Kant, Immanuel and the cosmopolitan constitution, 66, 69 and the cosmopolitan project, 65, 66 and cosmopolitan public right, 28, 36, 65, 68, 69 and democratic peace, 28, 51, 67 and the foedus pacificum, 28, 45, 67, 69 and global processes, 64 and the kingdom of ends, 65, 66, 69 and military intervention, 28 and the pre-political state of nature, 66, 68, 69 and republicanism, 67 and universal laws of hospitality, 27, 28, 68 and a world republic, 68 Kenya, 111–113, 115, 159, 206 Khan Sheikhoun, 84, 110, 134 Kibaki, Mwai, 111, 112, 159 Ki-moon, Ban, 3, 9, 20, 102, 111, 112, 120, 122, 129–132, 144, 145, 159, 183–185, 194, 196 Kosovo, 29, 30, 39–42, 53, 57, 58, 77, 80, 83, 95, 96, 98, 100, 103, 120, 161, 173, 183, 191, 204, 205, 208, 210, 220 L League of Arab States (LAS), 139, 140, 148, 160, 161, 186, 221 League of Nations, 69, 70, 72 Liberalism, 47, 128, 134, 136, 143, 234 Liberal-nationalism, 47, 128, 134, 136, 143 Liberation Tigers of Tamil Eelam (LTTE), 108

Index

Libya, 3, 4, 8, 12, 15, 16, 20, 22, 23, 77, 78, 79, 83, 94, 95, 101, 116, 118, 120–122, 124, 125, 136–139, 141, 142, 147–149, 159–164, 166, 169, 171–174, 176–181, 184–198, 202, 204, 205, 208, 216, 218, 221–224, 230, 234–236, 240, 241 M Mali, 83, 163, 166, 194 Manifest failing, 120, 183, 194 modification, 2, 19 Multi-level governance, 151, 156, 165 Myanmar, 107, 108, 114, 159, 182 N National Coalition for Syrian Revolutionary and Opposition Forces, 141 National focal points for R2P, 131, 207 National Interest, 47, 134, 136, 179, 184, 199, 203–208, 210, 211, 215, 216, 220, 224–228, 238, 239 Neoliberal capitalist international order, 214, 234 Non-Governmental Organisations (NGOs), 29, 33, 34, 37, 40, 42, 47–49, 53, 178, 189, 212, 213, 219, 221, 222 Normative approach to international law, 49 Normative life cycle model, 152, 158, 164, 217 Norm cascade, 158, 163, 164, 166, 170, 189

  273

Norm (definition), 76, 101, 151–158, 163, 165, 166, 181, 182, 189, 215, 217, 219, 226 Norm emergence, 158 Norm internalisation, 152, 163, 164, 189, 217 North Atlantic Treaty Organisation (NATO), 30, 40, 77–79, 83, 98, 101, 159, 161–163, 178–180, 184–188, 190, 202, 204, 208, 218, 222, 224, 231 O Obama, Barack, 161, 185, 188 Odinga, Raila, 111, 112 Office of the High Commissioner for Human Rights (OHCHR), 130, 168 Operation Delta Force, 38, 44, 81, 134, 217 Operation Inherent Resolve, 163, 173, 175, 234 Operation Turquoise, 94, 160 Operation Unified Protector, 77, 78, 83, 159, 161, 162, 164, 179, 186, 188, 190, 240 Organisation of Islamic Co-operation, 139, 186 Ouagadaogou agreement, 112 P Palestine, 140 Peace enforcement, 35, 40, 42, 105, 110, 209 Peacekeeping, 35, 40, 42, 58, 209, 240 Peace and Security Council of the African Union, 139, 186 Pluralist theory of international law, 71

274  Index Politics of protection, 77, 94, 135, 148, 149, 160, 171–173, 191– 193, 196, 197, 205, 235 Popular Front for the Liberation of Palestine, 140 Positive duty, 31, 103, 104, 115, 137, 199, 202–204, 207, 210, 211, 225, 228 Positive law, 156 Precision-Guided Munitions (PGMs), 161 R R2P and Libya, 164, 184, 189 R2P and postcolonial critical theory, 177, 181 R2P and regime change, 138, 142, 143, 161, 163, 166, 177, 180, 181, 187, 201, 222, 224 R2P rejectionists, 179, 182 R2P as a Western principle, 177, 181 Rawls, John, 47, 86, 87, 89, 90, 92, 134, 146 Realism, 47, 128, 134, 143 Regional civil society groups, 33, 34, 37, 47 Regional organisations, 100, 139, 142, 160, 184, 186, 204, 221, 222, 240 Remote Cosmopolitanism, 138, 161, 162, 167, 208 Responsibility while Protecting (RwP), 181, 200, 222, 224, 227 Rome Statute of the International Criminal Court (ICC), 33, 106, 122, 123 Rousseff, Dilma, 222, 224 Russia and regime change, 101, 109, 180, 181 and state interests, 81 and state sovereignty, 32, 39

Rwanda, 29, 30, 35, 42, 52, 59, 77, 80, 83, 90, 91, 94, 98, 109, 158, 160, 204, 208 S Sahnoun, Mohamed, 34, 55, 182 SCR1674, 159, 171 SCR1970, 185, 187 SCR1973, 139, 160–162, 180, 184, 185, 187, 188, 221, 234 Security Council aide-memoire, 9 Solidarity, 36, 151, 156, 166, 169 Somalia, 29, 30, 34, 36, 38, 42, 44, 52, 55–57, 59, 77, 80–83, 90, 98, 109, 134, 160, 161, 204, 208, 218, 224 South Ossetia, 107–109, 114, 159 South Sudan, 83, 96, 163, 166, 194 Srebrenica, 30, 158, 186 Sri Lanka, 107, 108, 114, 182 Sudan, 110, 160, 182 Supreme humanitarian emergencies, 32, 33, 45, 103, 106, 203, 208 Syria, 4, 15, 22, 40, 84, 95, 96, 105, 110, 115, 116, 122, 124, 125, 134, 137–142, 147–149, 159, 161, 163, 172, 173, 175, 181, 182, 192–198, 210, 220–222, 230, 234, 235, 240 Syrian National Council, 141 T Thresholds for intervention, 5, 7, 11, 13, 16, 26, 37, 49, 97–99, 102, 106, 109, 110, 114, 129, 165, 177, 183, 184, 190, 202, 204, 217, 228, 238, 241 Transitional National Council, 139 Trump, Donald, 3, 20, 240

Index

U Unified Task Force in Somalia (UNITAF), 29 United Nations-appointed Commission, 41, 42, 48, 49 United Nations Assistance Mission in Rwanda (UNAMIR), 29, 109 United Nations Charter, 93, 94 United Nations Guiding Principles on Business and Human Rights, 132, 145 United Nations International Law Commission, 39, 202, 220 United Nations Protection Force in Bosnia-Herzegovina (UNPROFOR), 29, 58 United Nations Secretariat, 78, 141, 223 United Nations Standby Arrangement System (UNSAS), 208, 209, 230 Uniting for Peace, 100, 194, 221 Universalism, 27, 31 UNSC, 2, 8, 18, 40, 43, 55, 58, 76, 77, 82, 84, 94, 96, 99, 100, 103, 105, 109, 110, 122, 123, 139, 159–161, 171, 174, 175, 179, 181, 183–186, 191, 192, 195, 196, 200, 203, 218–223 V Veto power, 43, 57, 64, 83–85, 194, 210, 217, 219, 220

  275

Virtual war, 53, 57, 83, 95, 96, 161, 162, 173, 186, 208 W War crimes (definition), 1, 3, 7, 9, 13, 14, 16, 33, 80, 97, 101–104, 106, 107, 109–116, 128–131, 133, 136, 137, 143, 151, 152, 154–156, 160, 163, 165, 166, 170, 175, 177, 180, 182, 183, 190, 201–204, 206, 208, 210, 211, 215–217, 220, 223, 224, 228, 241 World Bank, 90, 212, 213, 233 World Court, 33, 37, 47, 55 World Parliamentary Assembly (WPA), 40, 41, 48, 55, 213, 214 World Summit Outcome document, 98, 102, 103, 206 World Trade Organisation (WTO), 75, 212 Y Yemen, 163, 166, 194 Z Zimbabwe, 81, 182