HUMAN RIGHTS, SOVEREIGNTY, AND THE RESPONSIBILITY TO PROTECT
CRISTINA LAFONT
At the 2005 High-Level Plenary Meeting of the General Assembly, world leaders reached consensus on the responsibility to protect vulnerable populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.1 The basis for this development was the 2001 Report of the International Commission on Intervention and State Sovereignty, in which the innovative concept of the “responsibility to protect” was first introduced, its elements articulated, and its scope of application delimited.2 Without denying the path-breaking character of this development, the international community’s explicit acknowledgement of a responsibility to protect human rights seems like a natural step in the development of contemporary human rights practice. Human rights were conceived, from the beginning, as part of an international regime whose aim—as explicitly stated in the Universal Declaration of Human Rights and the UN Charter—was to secure the protection of human rights worldwide.3 In contrast to declarations of rights such as the 1789 French Declaration of the Rights of Man and the Citizen, the main innovation brought about by the post–World War II human rights regime is precisely that it framed human rights as international norms whose violation is a matter of international concern.4 Nonetheless, the fact that the Responsibility to Protect (R2P) principle was unanimously endorsed by the UN General Assembly indicates that the international community’s responsibility to protect human rights is no longer merely an aspiration but an emergent norm of customary international law.5
Because this is a recent development, the precise nature, scope, and implications of this emergent norm are still quite unclear. However, the same cannot be said of the reactions that it has generated so far. These tend to be clearly divided between those who strongly support this development and those who are skeptical or even deeply concerned by it.6 Within the latter camp, the main worry among those who have principled reasons against the idea of international intervention is that it is a direct threat to the sovereignty and equality of states.7 Their fear is that the linkage of human rights law with humanitarian intervention, which began after the end of the cold war, may open the door to (neo-imperialist) invasions of weak states by powerful ones for any reason whatsoever.8 A quick look at the demanding list of rights included in international human rights conventions and treaties reinforces this fear. If, as Article 25 of the International Covenant on Civil and Political Rights suggests, there is a human right to democracy, for instance, then the international community’s responsibility to protect human rights may seem to open the door for not just humanitarian but also “prodemocratic” interventions, that is, military interventions to promote or to bring about democracy in other countries.9 The same basic concern could arise with respect to any of the noble goals that are contained in the core human rights conventions.
This worry leads many authors to embrace human rights “minimalism.” If a distinctive function of human rights norms is to justify coercive intervention, then restricting the scope of human rights seems to be the only viable option to avoid providing powerful states with illegitimate excuses for intervention against sovereign states. A prominent example of a functionalist approach to human rights that leads to minimalism is offered by Rawls in The Law of Peoples. According to Rawls, a distinctive function of human rights norms is to “specify limits to a regime’s internal autonomy,” such that the regime’s fulfillment of the rights of its citizens “is sufficient to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions or … by military force.”10 Given that Rawls interprets human rights as (defeasible) triggers for coercive intervention,11 it is unsurprising that he proposes a severely truncated list of rights that bears little resemblance to the list of rights actually contained in the core human rights conventions and treaties that have been ratified by a majority of states.12 According to Rawls, the “proper subset” of genuine human rights is limited to rights such as the right to life, to liberty, to property, and to formal equality, whereas rights to political participation, to an education, or to full equality and nondiscrimination are conspicuously absent.13
Against this revisionary approach, many authors have pointed out just how implausible it is to interpret the distinctive function of contemporary human rights practice as being the justification of coercive intervention against sovereign states. Obviously, the main function of human rights norms is the protection of individual persons. Insofar as they serve that function, they provide normative standards that empower individuals (as well as nongovernmental organizations [NGOs] and many other agents who act in their name) to denounce, contest, and defend themselves and others from abuses at the hands of not only their own governments but also transnational corporations, international organizations, and so on. As James Nickel points out, quite apart from justifying coercive intervention, human rights norms fulfill a variety of critical and aspirational functions.14 Seen from this perspective, the rationale behind the international community’s R2P principle is the “protection of the person, rooted in universal human rights standards, and not a military doctrine aimed at justifying intervention.”15 Although this is a very plausible response to the revisionary approach, it nevertheless appears to be insufficient as it stands. Merely pointing out that the main function of human rights norms is to protect individual persons does nothing to address the suspicion that such protection may come at the price of undermining the sovereignty and equality of states. As long as both sides of the debate fail to examine the assumption that human rights and state sovereignty are mutually exclusive values, the normative credentials of the international community’s default responsibility to protect human rights remain questionable in principle.
In what follows, I would like to explore the scope and implications of the international community’s responsibility to protect human rights under current conditions of globalization. Taking the main purposes and normative principles that underlie contemporary human rights practice as a guide, I defend a much broader and more demanding interpretation of the international community’s R2P principle than is currently acknowledged. However, as I will try to show, even under such an ambitious interpretation, the international protection of human rights and the sovereign equality of states do not have to be seen as antithetical but rather can and should be seen to be mutually reinforcing principles of international law.
SOVEREIGNTY AND HUMAN RIGHTS: CAN THE CIRCLE BE SQUARED?
As I have suggested, the attempt to harmonize human rights and state sovereignty as equally valid principles of international law seems to lead to a dilemma. In order to give an account of the international function of human rights that is compatible with respecting state sovereignty, it seems that the content of human rights needs to be restricted so that it fits within the scope of legitimate intervention by external agents against sovereign states. This strategy exerts pressure toward narrowing the list of human rights to rights to life and bodily integrity, so that only interventions to prevent grave rights violations through criminal acts such as genocide or ethnic cleansing show up as legitimate. However, once the content of human rights is reduced to such a minimum, respecting human rights becomes too easy to provide a meaningful “standard of achievement.”16 As a consequence, human rights norms can no longer fulfill any of their other functions. They would become useless as standards for criticism and political struggle against any form of rights violation that does not involve mass killings—from abuses of power, to discrimination, to a lack of political representation, freedom of speech, and so on. Yet the converse of this approach also seems to have problems. The principle of equal sovereignty of states seems seriously threatened if, in order to give a plausible account of the critical and aspirational function of human rights, one accepts the demanding list of rights contained in current human rights conventions. Respecting human rights would now become too difficult. It also could be claimed that any insufficiency or deviation in meeting such demanding human rights standards would provide a justified excuse for external intervention against sovereign states.
As a way out of this dilemma, some authors propose to follow a strategy of bifurcation. In her book Globalization and Sovereignty, Jean Cohen follows this strategy and argues that, instead of minimizing the set of “human rights proper,” as Rawls proposes, human rights should be divided into two separate categories with clearly differentiated functions. On the one hand, we have the set of what Cohen calls “human security rights,” the violation of which could warrant international action, even coercive intervention against a state. Those are the rights violated by criminal acts such as genocide or ethnic cleansing. On the other hand, we have the full catalog of rights contained in the core human rights conventions, the function of which should be seen as merely domestic. Indeed, to ensure that the full catalog of rights does not become a set of potential triggers of the international community’s R2P, as “human security rights do,” they must be removed from the proper subset of “institutionalized and enforceable international human rights” and reinterpreted as standards that are entirely internal to a domestic political practice and that are, therefore, primarily directed to a domestic audience.17 As Cohen indicates:
While international human rights have been articulated as global public standards and aspirations, their main function is not to serve as norms to which the international community of states hold each country’s government accountable through reciprocity mechanisms. Rather, they function as public standards of critique to which citizens and residents, domestic rights activists, and social movement actors can refer in order to hold their own governments accountable.18
Consequently, “rights advocates should shift the focus back to the domestic arena and the empowering and emancipatory role that human rights discourses still have to play therein when invoked by local actors, i.e., those whose rights are at issue, even though today these discourses reference international norms.”19
This strategy of bifurcating and de-internationalizing human rights seems problematic in several respects.20 First, without further clarification and justification regarding the conceptual and normative grounds for the proposed bifurcation within human rights, the proposal seems arbitrary. According to Jean Cohen’s proposal, the bifurcation tracks the threshold below which a state loses all legitimacy by denying some sector of its population the right to political membership. Following Joshua Cohen’s proposal, she interprets human rights “as entitlements that ensure the bases of membership, or inclusion into organized political society.”21 However, she finds his interpretation of the principle too demanding, in that it includes political rights such as meaningful political participation, freedom of speech, and so forth. Accordingly, she claims that the substantive criterion for identifying the proper subset of “human security rights”—those that can trigger the international community’s responsibility to protect—is “not the absence of political participation, dissent, or concern and respect, but rather absolute nonbelonging.” A state that engages in criminal practices such as mass extermination, expulsion, ethnic cleansing, or enslavement is not simply violating some moral rights of its victims but is destroying the very conditions of possibility for the political agency of the targeted groups. In so doing, it “forfeits the claim to be representing the groups it oppresses in these radical ways and thus violates the membership principle.”22
Now, even if one assumes, for the sake of argument, that the membership principle provides the right substantive criterion for identifying the “proper subset” of human rights whose violation should trigger the international community’s responsibility to protect, and even if, also for the sake of argument, one agrees with an ultraminimalist interpretation of the membership principle, it is still not clear why massive starvation due merely to state neglect, as opposed to the same starvation caused by a deliberate criminal intent (that is, the deliberate attempt to bring about what she calls “the political death of a segment of the political community”), should not count as a violation of the principle.23 Even less clear is why such massive starvation would not count as a threat to human security that appropriately triggers the international community’s responsibility to protect.24
Seen from this perspective, the cogency of the proposed bifurcation among human rights norms would seem to depend on the truth of a quite implausible empirical claim: what Cohen refers to as “the four E’s” (mass extermination, expulsion, ethnic cleansing, and enslavement) are the only current threats to the security of the person. Responding that they are the only threats that can legitimately trigger external intervention would simply beg the question. Thus, in order to dispel the impression that this is all rather ad hoc, the distinction would need to be justified against plausible alternative views, such as the UN human security approach, which explicitly emphasizes the multidimensional nature of threats to human security and the need for integrated responses that take into account all the relevant structural conditions at the local, national, and international levels. Restrictively reinterpreting the relevant threats to human security rights as the four E’s would be clearly retrogressive vis-à-vis current UN doctrine, which is based on recognition of the fact that “the lives of millions of people [are] being threatened not only by international war and internal conflicts but also by chronic and persistent poverty, climate-related disasters, organized crime, human trafficking, health pandemics, and sudden economic and financial downturns.”25
But whether one accepts a multidimensional view of human security threats or sticks with the narrower set of the four E’s favored by Cohen, the problems associated with attempts to bifurcate human rights into two separate categories still remain. Cohen seems to assume that the specific subset of rights that belong to the category of “human security rights” can be discerned from the rights that are threatened in situations such as the four E’s. However, as she herself indicates, these are not situations wherein some specific rights are violated. Instead, these are situations in which the very right to have rights is violated. Indeed, populations under the threat of genocide or ethnic cleansing do not lack secure access to some narrow set of rights; they lack secure access to any rights at all. Thus, focusing on threats like genocide or ethnic cleansing is not particularly helpful for demarcating a specific subset of human rights, because this would require drawing a line between the rights that are threatened in such situations and the rights that are not.26 It is precisely because victims in such situations lack protection for any of their rights that coercive interventions to prevent or mitigate them can garner support among human rights minimalists and nonminimalists alike, for this support neither requires nor depends upon drawing a categorical distinction among types of human rights.27
Beyond the questionability of the proposal to bifurcate human rights, the proposal to de-internationalize them also seems retrogressive from the point of view of its practical consequences for the responsibilities of the international community. Removing from the list of enforceable international rights the bulk of human rights that fall outside the putative subset of “human security rights” not only would rule out military interventions against sovereign states in response to their violation but also, presumably, would rule out all other forms of external action, such as legal interventions by international courts (e.g., the International Court of Justice), those undertaken by regional human rights bodies (e.g., the European Court of Human Rights [ECHR] or the Inter-American Court of Human Rights), and the activities of the UN treaty-monitoring bodies that supervise the main human rights conventions. Certainly, the rulings of such supranational institutions limit the “margin of appreciation” of state parties and thereby infringe upon their sovereignty. In fact, the potential for infringing upon not just state but also popular sovereignty is unavoidable, since—as Cohen acknowledges—“human rights conventions tend to take on autonomous international meaning and weight that is not simply at the disposal of individual signatory states.”28
Needless to say, it is precisely because the interpretation of the international human rights treaties is not at the disposal of individual states that their enforcement by supranational courts can provide potential victims some effective legal remedy against violations by their own states. From this perspective, removing the quite demanding political, social, and economic rights included in the core human rights conventions from the proper subset of “institutionalized and enforceable international rights” would be a clear retrogression in the legal development of the international human rights regime. Indeed, the widespread recognition that human rights are interdependent has led to the expansion rather than the narrowing of the list of “enforceable international rights.” As recently as May 2013, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights entered into force. It includes an individual complaint mechanism that allows the UN Committee on Economic, Social and Cultural Rights to consider complaints from individuals or groups who claim their rights under the covenant have been violated. It also contains an inquiry mechanism that allows the committee to investigate, report upon, and make recommendations regarding “grave or systematic violations” of the convention. This is a slow but steady trend in the legal development of the international human rights regime. In fact, an individual complaint mechanism has already entered into force for seven of the nine core international human rights treaties.29
Now, this may suggest that we are once again facing a tragic conflict between the incompatible values of state sovereignty and individual human rights. Interestingly, Cohen’s own discussion of the development of the international human rights regime throughout the twentieth century provides some cues that question this diagnosis. As Cohen rightly indicates, in contrast to the 1948 Universal Declaration of Human Rights, the regional ECHR that was established under the auspices of the Council of Europe was designed to be enforceable from the beginning. This convention includes a demanding set of civil and political rights for all persons within the jurisdiction of its member states, and it established a commission that could investigate a case, attempt a settlement, or refer it to the ECHR, the decisions of which are binding upon member states. Against this backdrop, Cohen raises the obvious question:
But why would executives of democratic states delegate some of their sovereign powers to a strong regional regime and court (which acquired compulsory jurisdiction)? The answer is that they were executives of newly (re-)established democracies who sought to create supranational mechanisms to help lock in domestic constitutionalist and democratic institutions against the re-emergence of anti-democratic political threats … The possible enforcement of human rights by the ECHR could serve as a mechanism helping to strengthen domestic courts and institutions of judicial review, parliamentary legislation, and public action. Indeed the idea of signing on to a strong regional human rights regime was a way to supplement and reinforce, not substitute for, the domestic institutions of constitutional democracy.30
Now, if Cohen is right and a supranational human rights regime with binding authority to adjudicate on civil and political rights can reinforce rather than undermine sovereignty, then it is not at all clear why excluding those rights from the subset of “institutionalized and enforceable international rights” would be a welcome development of the international human rights regime. It would certainly leave the victims of violations of such rights without any protection. But, even more importantly, leaving citizens without protection from violations of their political rights at the hands of their own state would undermine rather than strengthen sovereignty—at least if we understand sovereignty in a normatively demanding sense, as Cohen does.31 It seems to me that the citizens of any country in the world have just as good reasons today as the Europeans of fifty years ago to try to “lock in domestic constitutionalist and democratic institutions against the re-emergence of anti-democratic political threats” by maintaining international mechanisms for strengthening their constitutional rights. If so, they would have good reasons to resist the exclusion of the full range of human rights (from civil rights to political, social, and economic rights) from the domain of “institutionalized and enforceable international rights.”
Still, this answer does not address the main worry that motivates Cohen’s proposal. Taking into account the power differentials among states, any international enforcement of the full range of human rights contained in the core human rights conventions is damned to be bent toward the self-serving interests of the powerful states and thus to undermine the equal sovereignty of states as a fundamental organizing principle of international law. It is this worry that motivates proposals to deflate the international community’s responsibility to protect human rights, so as to restrict it to the protection against egregious violations such as genocide or ethnic cleansing. Here, we finally face the central issue, namely, whether human rights and sovereign equality are necessarily in conflict.
HUMAN RIGHTS AND SOVEREIGNTY REVISITED
Although Jean Cohen herself warns of the danger of constructing state sovereignty and human rights as antithetical principles, in the end, her proposal succumbs to that very danger. Limiting the domain of “institutionalized and enforceable international human rights” to the subset of so-called human security rights can count as an improvement upon the status quo only if the international enforcement of human rights is seen as a process that necessarily weakens the sovereignty and equality of states. International action to enforce human rights, at its best, is undertaken for the sake of protecting vulnerable individuals and, at its worst, is pursued as a pretext for actions that serve the self-serving purposes of powerful states. Either way, sovereignty is the price we pay.
If this is right, then any attempt to promote the human rights project faces a dilemma. We can have international enforcement of minimal standards, and we also can have demanding standards that are merely domestic aspirations, but we cannot have international enforcement of demanding standards without simultaneously undermining the sovereignty and equality of states. However, as I will show, what is missing from this picture are the many ways in which “institutionalized and enforceable international human rights” can be a crucial tool for strengthening the sovereignty and equality of states against the undue influence of powerful actors in the international arena.32 Let’s take a look at some examples.
GLOBAL GOVERNANCE INSTITUTIONS AND HUMAN RIGHTS
Global governance institutions such as the World Trade Organization (WTO), the International Monetary Fund (IMF), and the World Bank are particularly relevant institutional contexts in which the power differentials among member states can have a very negative impact upon the sovereignty of weak states, not to mention upon the protection of human rights in these states. A recent case that has drawn a lot of public attention concerns WTO regulations on patents for pharmaceuticals and their impact upon access to essential medicines.
In 1995, members of the WTO signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).33 Among other things, this agreement grants pharmaceutical companies patent protection for a period of twenty years, during which they have the exclusive rights to market and sell their products. Prior to the TRIPS agreement, each country had its own legislation on intellectual property; in many cases, patents were exclusively applied to processes but not to products, or they did not apply to pharmaceuticals at all. It was therefore possible to produce cheaper, generic versions of expensive medications. However, the TRIPS agreement introduced drastic changes by significantly increasing the property rights privileges of pharmaceutical companies and shielding them from competition from companies that produce generic versions. Since ratification of the TRIPS agreement is a compulsory requirement for membership in the WTO, countries such as Brazil, India, South Africa, or Thailand were required to change their domestic legislation accordingly. This was problematic because such countries had previously been the main producers of generic pharmaceutical products and had supplied affordable, essential medicines to most of the developing world.
The issue gained public attention in light of the severe negative impact of this agreement upon the access that citizens of poor countries had to essential medicines, particularly their access to antiretroviral treatments for HIV/AIDS. Taking into account the pandemic proportions of the HIV/AIDS crisis in sub-Saharan Africa, it is not surprising that the implementation of the TRIPS agreement produced public outrage.34 Two interesting cases in this fight were Brazil and South Africa. The constitutions of both countries explicitly recognize the right to health, the right to access essential medicines, and the obligation of the state to guarantee those rights. In the case of Brazil, its legislation also provides access to essential medicines free of charge. So the changes in domestic legislation required by the TRIPS agreement would have made it impossible for those states to protect an essential component of the right to health that their citizens were already supposed to have. This in turn would have been in direct breach of their international human rights obligations. All states that have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) have accepted the principle of nonretrogression, which prohibits “deliberately retrogressive measures” through law or policy, that is, legislative measures that jeopardize existing achievements in the enjoyment of social and economic rights.
In October 2001, a group of more than twenty developing countries, which included Brazil, India, South Africa, and Thailand, prepared a draft ministerial declaration to be discussed at the Doha round of trade negotiations. In that declaration, they explicitly appealed to the member states’ international obligation to protect the human rights of their populations as a justification for the need to amend the TRIPS agreement. In particular, they appealed to their obligation to protect and promote the fundamental human rights to life and the enjoyment of the highest attainable standard of physical and mental health, including the prevention, treatment, and control of epidemic, endemic, occupational, and other diseases and the creation of conditions that would ensure universal access to medical services and medical attention in the event of sickness, as affirmed in the ICESCR.35
In December 2001, the UN Committee on Economic, Social and Cultural Rights, which supervises the implementation of the ICESCR by state parties, issued a statement on “human rights and intellectual property,” affirming that national and international intellectual property regimes must be consistent with the human rights obligations of states.36 The final Doha declaration did not directly mention human rights to justify the amendment. Instead, the international legal obligation of states to protect their citizens’ right to health was rendered as “the WTO members’ right to protect public health and, in particular, to promote access to medicines for all.”37
Several features of this development are of interest. Regarding the potential conflict between international human rights law and trade law, it is very significant that, for the first time, an amendment to a WTO trade regulation was introduced that explicitly recognized the priority of protecting fundamental rights (such as the right to health and to access essential medicines) over other trade goals and agreements. As for the sovereignty and equality of the states participating in global governance institutions, this was a clear case in which an appeal to international human rights law by weak states—with the decisive additional support of NGOs, global public opinion, and the UN human rights machinery—actually strengthened the sovereignty and equality of weak, developing countries against the strong economic interests of the most powerful states. It did so in spite of the disproportionate bargaining power of the powerful states within global governance institutions. The issue is far from resolved, and there are many reasons to be pessimistic about the whole process.38 But what I find interesting about this development is that it calls into question the claim that the distinctive international function of human rights norms is to limit the sovereignty of states.
This claim might be true in cases in which human rights violations are due to the fact that states are unable or unwilling to protect the human rights of their populations. However, this example presents a totally different case. What we have in cases like the TRIPS agreement are states that are able and willing to protect the human rights in question but are prevented from doing so by economic obligations imposed by global governance institutions. In these cases, the appropriate form of international action (such as the amendment of the TRIPS agreement), far from limiting sovereignty, consists precisely in strengthening the sovereignty of the states in question. Because global economic regulations such as the TRIPS agreement threaten to limit the sovereignty of member states—that is, their authority to decide how to best meet their obligations to protect the basic rights of their populations—the 2005 amendment needed to explicitly affirm “the members’ right to protect public health and promote access to essential medicines for all.” This problem is not an isolated case but one of the major challenges confronting contemporary human rights practice.
Global economic institutions such as the WTO, the IMF, or the World Bank establish regulations, policies, and agreements based on the rationale and principles underlying their respective legal mandates (trade liberalization, financial stability, and so on). Protecting human rights is not part of their legal mandates, so their regulations, policies, and agreements are guided by economic considerations rather than by human rights. However, regulations and agreements on trade, investment, patents, and so forth may require changes in domestic law that can have a tremendous effect on the ability of states to protect the human rights of their members. This can lead to conflicts among the international obligations of member states, such as pitting their human rights obligations against their trade obligations.
However, member states are not at liberty to unilaterally decide how to best resolve potential conflicts among their international obligations. In the case of the WTO, for example, this is due to its “single undertaking” structure, which means that (1) all WTO members must participate in all WTO treaty regimes; (2) by default, all WTO rules apply to all members; and (3) individual WTO members may not reverse or adjust their obligations. Moreover, if they breach their agreements, member states are subject to enforceable sanctions imposed by these global economic institutions. Withdrawing from the agreements is not a feasible option for most states; it would only worsen their situation. Thus, it is clear that, unless these institutions develop legal mechanisms to ensure that conflicts between the economic obligations they impose on member states and the international human rights obligations of those states can be avoided, states may be forced to breach the latter in order to fulfill the former.
HUMAN RIGHTS: DEMANDING AND INTERNATIONAL
The articulation and defense of an appropriate international response to this structural problem lies behind the long-standing efforts of UN human rights agencies and other transnational actors—from NGOs to organizations of legal scholars, and even some countries—to entrench international human rights law in the operational mechanisms of international organizations such as the World Bank, the IMF or the WTO. The aim is to provide legal standards of operation as well as remedies in cases where such standards are violated, so that the actions of these institutions do not infringe upon human rights and do not constrain the ability of governments to protect the human rights of their populations.39
In recent years, specific proposals have been worked out by Special Rapporteurs commissioned by the Human Rights Council and the UN High Commissioner for Human Rights. Many of these rely on the “human rights due diligence standard” developed by John Ruggie to specify the scope and content of the responsibilities of transnational corporations to respect human rights. In his report to the Human Rights Council, in April 2009, this responsibility is interpreted as requiring “an ongoing process of human rights due diligence, whereby companies become aware of, prevent, and mitigate adverse human rights impacts.” This process should include four elements: “adopting a human rights policy; undertaking—and acting upon—a human rights impact assessment; integrating the human rights policy throughout the company, across all functions; and tracking human rights performance by monitoring and auditing processes to ensure continuous improvement.”40 These four ways of operationalizing the standard of due diligence seem easily applicable to global economic institutions. An interesting development in that direction is the Maastricht Principles, adopted in 2011 by a group of leading experts in international law and human rights.41
Admittedly, efforts to make international human rights norms legally binding upon the actions of global governance institutions still have a long way to go before they succeed. However, it is hard to see how minimizing and de-internationalizing human rights could be a helpful approach to addressing these problems. Suppose that the protection of some basic human rights within a state is hampered by some trade regulation imposed by the WTO or some policies imposed by the IMF or the World Bank. It seems that the appropriate action for member states would be to change such policies or regulations. But this sensible course of action seems hard to fit within the framework of Cohen’s proposals. Once social, economic, and political rights are excluded from the set of “institutionalized and enforceable international human rights,” the normative basis to justify an international responsibility for undertaking such action would be eliminated. Shifting the focus of rights activists “back to the domestic arena” not only would leave these violations in place but also would divert international attention from the actual lack of state sovereignty and equality within global governance institutions. Inciting citizens to “hold their own governments accountable” for policies that are imposed on them by global governance institutions would simply add insult to injury. These difficulties bring us back to our initial question: Under current conditions of globalization, how should the international community conceptualize the appropriate scope, content, and implications of the R2P principle as an emergent norm of international law?
A DEMANDING INTERPRETATION OF R2P
Because the international community’s default responsibility for human rights protections is only triggered when states are unable or unwilling to discharge their primary responsibilities, analyzing the scope and content of the responsibilities held by states should be helpful in determining those held by the international community. Following the standard tripartite model of human rights obligations, states are required to respect, protect, and fulfill human rights within their jurisdiction.42 The duty to respect human rights is an obligation under which states must refrain from actions, carried out through the organs of the state, that would infringe upon the rights of individuals or groups. The duty to protect human rights extends beyond the state’s own conduct to include an obligation to exercise the state’s jurisdiction to prevent violations by third parties. The state must prevent violations even if they originate in the actions of other states that fail to respect the human rights of persons outside their jurisdiction. States must also prevent violations of rights by private actors, such as, for example, by passing legislation to prevent, prosecute, and punish domestic violence against women or to prevent corporations from putting the health and safety of their workers at risk.43 In addition, states have the obligation to fulfill human rights by providing the institutional means and arrangements needed for the effective enjoyment of human rights.
If we take the threefold structure of state human rights obligations as a starting point, we can analyze the various ways in which states can fail to discharge their primary responsibilities under current conditions, and thereby discern the scope and content of the international community’s default responsibility to protect human rights whenever states are unable or unwilling to do so. Because the international R2P principle aims at restoring the ability of states to discharge their primary responsibility, international action must address all salient threats to human rights protection at any given time, namely:
a. private actors (e.g., individuals or transnational corporations),
b. states that fail to respect the human rights of persons outside their jurisdiction, or
c. international organizations (e.g., the WTO, IMF, or World Bank); and
The standard interpretation of the international community’s human rights responsibilities limits international action to cases (1) and (3) and neglects (2). Thus, it is assumed that the international community’s responsibility to protect must be discharged either in the form of coercive actions—such as, for example, economic sanctions or military intervention—against states that are unwilling to respect human rights, or in the form of humanitarian assistance, if states are unable to fulfill the rights of their populations, perhaps, for example, due to a lack of resources. But what is mostly neglected is cases of states that are unable to prevent human rights violations by third parties that escape their effective control. Conceiving the R2P principle in this way leaves the actions of global economic institutions and transnational corporations free from scrutiny of the negative impact they might have upon the ability of states to protect the human rights of their populations. Therefore, if we take the aim of securing the protection of human rights worldwide seriously, there is no reason why we should adopt a restrictive interpretation under which international action can only consist in interventions against the states whose members suffer human rights violations. Moreover, extending the international community’s responsibility to protect, from the narrow domain of international criminal law to other domains of international human rights law, seems also a logical consequence of the practice’s own aim.
Although this process is in its early stages, some legal scholars cite the UN General Assembly Declaration on the Right to Development, from 1986, as evidence that human rights practice is evolving in that direction. Among the many salient features of this human rights declaration, the most interesting feature, for present purposes, is that it involves adopting a structural approach to human rights protections.44 In addition, the declaration establishes a direct link between the right to development and the existence of an international economic order in which all human rights can be fully realized. On this basis, the structural approach to human rights protections is not limited to the specification of actions that states must take in order to discharge their primary responsibility to protect the human rights of their populations. The structural approach is also taken in order to specify the kinds of actions that members of the international community must undertake to discharge their own responsibility toward human rights protections, which, in this declaration, is designated as a “duty to cooperate” in order to ensure development and eliminate obstacles to development. Although the declaration clearly falls short of more precisely specifying the kinds of actions that would be required to do so, it does indicate that the duty to cooperate includes direct assistance from developed to developing countries (Article 4.2). In addition, members of the international community are required to establish a new international economic order “based on sovereign equality, interdependence, mutual interest, and co-operation among all states” (Article 3.3).
Needless to say, the seriousness of members of the international community in discharging any of the self-imposed obligations expressed in this declaration is questionable, to put it mildly. However, the question we are addressing here is not how realistic it is to expect that members of the international community will discharge any of their obligations but, rather, whether the most plausible reconstruction of the norms underlying contemporary human rights practice reveals an inherent tension between human rights and the sovereign equality of states. Since the Declaration on the Right to Development explicitly affirms the opposite, reconstructing its rationale can be helpful for answering that question.
If the international community’s default responsibility to protect is triggered whenever states are unable or unwilling to protect human rights, it seems obvious that international action geared toward enabling states to fulfill their primary responsibility for human rights protections must be seen as essential to properly discharging the responsibility to protect. However, it is not possible to enable states to discharge their responsibility to protect human rights without strengthening their ability to meet that responsibility—by strengthening their ability to prevent violations by third parties, for example. Since one of the standard circumstances in which international action is called for is precisely when states are not able to effectively prevent such violations on their own, two salient cases that call for international action under current conditions of globalization are the actions of global economic institutions and of powerful private entities, such as transnational corporations, that are in fact beyond the control of states, especially of weak states.45 As mentioned above, many international efforts have been developed in recent years to address these problems: from the UN Global Compact initiative,46 which encourages transnational corporations to integrate corporate social responsibility into their business models, to the Maastricht Principles, which specify the obligations of states, as members of international organizations, to refrain from actions that impair the ability of other states to protect the human rights of their populations.47
Whether or not these efforts are likely to succeed, what matters in our context is that this type of international action does not seem to present us with a dilemma between the values of state sovereignty and the international protection of human rights. In fact, it is just the opposite. Strengthening the power of the state vis-à-vis the actions of transnational corporations is not a by-product of the international efforts to protect human rights but a necessary condition for enabling the state to discharge its primary responsibility for human rights protections. Similarly, international action geared toward entrenching human rights standards within the operational mechanisms of global economic institutions would enhance the sovereign equality of weak states precisely in order to enable them to meet their human rights obligations. Strengthening the sovereign equality of states that are willing to protect the human rights of their populations is not simply an independently valuable political goal that may or may not be compatible with pursuing the goal of protecting human rights. Rather, it is a necessary condition for enabling states to discharge their primary responsibility of protecting the human rights of their populations.
COERCIVE INTERVENTION REVISITED
As long as the international community expects states to bear the very demanding primary responsibility of protecting the human rights of their populations, it must see to it that states are in fact able to bear such responsibility. This is a straightforward reason why human rights protection and state sovereignty cannot be seen as antithetical to each other but instead must be understood as mutually reinforcing political values. It also indicates an additional reason, internal to human rights practice, to be deeply concerned by coercive interventions against sovereign states.
Beyond the fact that such interventions themselves lead to additional human rights violations and are often unable to effectively prevent violations by third parties,48 a major additional problem with coercive interventions against sovereign states, from a point of view internal to human rights practice, is that they disable the agent that has the primary responsibility to protect and fulfill the human rights of its population without providing an alternative agent that is able and willing to perform this crucial function. Indeed, after recent experiences with the aftermath of military interventions, it is becoming increasingly clear that when international agents intervene militarily against a state, they might do so in the name of the international community’s default R2P principle, but by disabling the actor who has the primary responsibility to protect and to fulfill human rights, they inherit that primary responsibility in the occupied areas for as long as they exercise effective control over them.49 This is a very demanding responsibility that few states (or “coalitions of the willing”) are likely to be willing to bear. In the context of justifying a limited military strike in Syria, President Obama made this point crystal clear when he said, “I don’t think we should remove another dictator with force—we learned from Iraq that doing so makes us responsible for all that comes next.”50
Perhaps, in light of the disastrous results of recent “transformative” military occupations, the danger that keeping human rights standards both demanding and internationally binding might lead to a lot of “prodemocratic” military interventions against sovereign states is no longer as high as it might have been before those experiences. Regardless of how high or low that danger may be at any given time, however, it is still important to see why lowering human rights standards and minimizing the international community’s responsibility to protect are not the right strategies to address such a danger. On the one hand, there is simply no need to lower human rights standards in order to have a very strong reason to restrict coercive intervention against sovereign states to situations of gross and systematic violations of human rights. But the reason is not that the rights violated in such cases exhaust some putative set of human rights proper, or that they are the only rights that are a matter of international concern and that, therefore, should trigger the international community’s default responsibility to protect. Indeed, one needs to change the focus from the object of the rights in question to the allocation of the obligations to protect them, in order to identify the strongest reason. As I have suggested, the crucial problem, from a human rights perspective, is that forceful interventions against sovereign states disable the actor who bears the primary responsibility to protect and fulfill human rights without having any effective replacement to offer. Thus, because this type of international action is a very poor means of effectively protecting the human rights of the affected populations, it should be used only as a last resort, when other means of preventing imminent and massive human rights violations have failed.
On the other hand, because the sovereignty and equality of states is increasingly threatened by globalization, we actually need to increase rather than decrease the international community’s default responsibility to protect. As we have seen in the examples analyzed, discharging this responsibility effectively requires, among other things, finding ways to strengthen the sovereignty of those states that are willing to protect the human rights of their populations but might be unable to do so as a consequence of actions that are beyond their control—such as those undertaken by transnational corporations or global economic institutions. What is hard to see, in light of this situation, is how proposals to lower the demanding and internationally binding standards contained in the core human rights conventions and treaties could help strengthen the sovereignty and equality of those states, let alone the protection of human rights within them.
NOTES
1. United Nations, 2005 World Summit Outcome, G.A. Res. 60/1 (Oct. 24, 2005), paras. 138–40.
2. International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), http//www.iciss.ca/pdf/Commission-Report.pdf.
3. See Article 1.3 of Charter of the United Nations, 1 UNTS XVI (Oct. 24, 1945); and the preamble of the Universal Declaration of Human Rights, G.A. Res. 217A (III) (Dec. 10, 1948).
4. On this crucial difference between contemporary human rights practice and prior declarations of rights, see Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2010).
5. See United Nations High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565 (Dec. 2, 2004), para. 203. For more skeptical analyses, see Carsten Stahn, “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?” American Journal of International Law 101, no. 1 (2007): 99–120; Nicholas Wheeler and Frazer Egerton, “The Responsibility to Protect: ‘Precious Commitment’ or a Promise Unfulfilled?,” Global Responsibility to Protect 1, no. 1 (2009): 114–132. For an excellent historical reconstruction of the emerging Responsibility to Protect (R2P) doctrine as an expression of existing practices, see Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011).
6. Among those who welcome this development, there is nonetheless also widespread concern about the current institutional structure of the UN and, in particular, the Security Council, which in most cases leads to gridlock and prevents international action. For an example, see Allen Buchanan and Robert Keohane, “Precommitment Regimes for Intervention: Supplementing the Security Council,” Ethics & International Affairs 25, no. 1 (2011): 41–63.
7. See Noam Chomsky, “Statement to the United Nations General Assembly Thematic Dialogue on the Responsibility to Protect,” speech at the United Nations, New York, July 23, 2009, www.un.org/ga/president/63/interactive/protect/noam.pdf. For a more recent example, see Jean Cohen, Globalization and Sovereignty (Cambridge: Cambridge University Press, 2012). I discuss Cohen’s claims and proposals in the next section. For a defense of the contrary view of R2P as an international tool that can undermine unilateral (self-serving) interventions, see Orford, International Authority.
8. As Philip Alston aptly puts it, the concern is that “the Responsibility to Protect doctrine is merely a twenty-first-century version of earlier imperial interventions in the Global South.” Alston, “Does the Past Matter? On the Origins of Human Rights,” Harvard Law Review 126, no. 7 (2013): 2061.
9. See also Universal Declaration of Human Rights, Article 21; Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5 (Nov. 4, 1950), Protocol I, Article 3; and Organization of American States, American Convention on Human Rights (Nov. 22, 1969), Article 23. For an overview of this debate see Gregory Fox and Brad Roth, eds., Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000). For recent defenses of a human right to democracy, see Seyla Benhabib, “Is There a Human Right to Democracy? Beyond Interventionism and Indifference,” in Dignity in Adversity: Human Rights in Troubled Times (Cambridge: Polity, 2011), 77–93; and Thomas Christiano, “An Instrumental Argument for a Human Right to Democracy,” Philosophy & Public Affairs 39, no. 2 (2011): 142–76. For arguments against the existence of a human right to democracy, see Jean Cohen, “Rethinking Human Rights, Democracy, and Sovereignty in the Age of Globalization,” Political Theory 36, no. 4 (2008): 578–606; Joshua Cohen, “Is There a Human Right to Democracy?” in The Egalitarian Conscience, ed. Christine Sypnowich (Oxford: Oxford University Press, 2006), 226–48; and John Rawls, The Law of Peoples with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999).
10. Rawls, Law of Peoples, 79–80.
11. I take this formulation from John Tasioulas, “Are Human Rights Essentially Triggers for Intervention?” Philosophy Compass 4, no. 6 (2009): 938–50.
12. For a complete collection of human rights documents, see Ian Brownlie and Guy Goodwin-Gill, eds., Basic Documents on Human Rights (Oxford: Oxford University Press, 2010).
13. See Rawls, Law of Peoples, 65. However, if Rawls is right in claiming that one of the distinctive functions of human rights is that they trigger coercive intervention against states, then his list may actually be too expansive. As many critics have pointed out, the main problem with Rawls’s approach is that it tries to identify a single subset of rights that is supposed to serve too many disparate functions: drawing the limits of acceptable pluralism, acting as a trigger for coercive intervention, setting necessary conditions for the legitimacy of any government, determining the upper limit of international assistance to burdened societies, and so on. There is no obvious reason to assume that one and the same list of rights may plausibly fulfill all of these disparate functions. As I will argue, it is a mistake to think that we could specify triggers for different kinds of international actions simply by looking at the objects of various rights. Instead, it is essential to look at the proper allocation of (primary and default) obligations for their protection among different actors.
14. See James Nickel, “Are Human Rights Mainly Implemented by Intervention?” in Rawls’s Law of Peoples: A Realistic Utopia?, ed. Rex Martin and David Reidy (Oxford: Blackwell, 2006), 270; and Charles Beitz, “Human Rights as a Common Concern,” American Political Science Review 95, no. 2 (2001): 269–82.
15. Dorota Gierycz, “The Responsibility to Protect: A Legal and Rights-Based Perspective,” Global Responsibility to Protect 2, no. 3 (2010): 252.
16. In its preamble, the Universal Declaration of Human Rights is categorized as “a common standard of achievement for all peoples and all nations.”
17. Jean Cohen, Globalization and Sovereignty, 221.
18. Jean Cohen, Globalization and Sovereignty, 216. My italics.
19. Jean Cohen, Globalization and Sovereignty, 165. My italics.
20. Jürgen Habermas follows a similar strategy in his proposal for a new international order. He circumscribes the international protection of human rights (by a reformed world organization) to cases of violations of international criminal law, such as genocide, crimes against humanity, and so forth, and ascribes the protection of all other human rights standards exclusively to the national level. See Habermas, “A Political Constitution for the Pluralist World Society?” in Between Naturalism and Religion, trans. Ciaran Cronin (Cambridge, MA: MIT Press, 2008), 312–52. However, in his most recent writings, he seems to have abandoned that strategy. See Habermas, “From the International to the Cosmopolitan Community” in The Crisis of the European Union: A Response, trans. Ciaran Cronin (Cambridge: Polity, 2012), 53–70, especially 60, 65, and 69.
21. Jean Cohen, Globalization and Sovereignty, 187. See Joshua Cohen, “Minimalism About Human Rights: The Most We Can Hope For?,” The Journal of Political Philosophy 12, no. 2 (2004): 197.
22. Jean Cohen, “Rethinking Human Rights,” 587.
23. If we took massive starvation through state neglect to be a violation of the membership principle, this would suggest that the subset of “human security rights” includes rights to food, health, and so forth. Since Cohen does not offer a list of human security rights, it is hard to know the precise rights she has in mind. On the one hand, it is unlikely that she wants to include all the rights that are usually taken to be part of the right to security of the person, such as the right to a fair trial or to reproductive control. Including these rights would imply that the lack of secure access to them could justify coercive intervention. On the other hand, she cannot justify their exclusion by claiming that these rights are not threatened when the membership principle is violated. For it is obviously false that populations threatened by “the four E’s” (mass extermination, expulsion, ethnic cleansing, and enslavement) can nonetheless enjoy secure access to these rights. Later, I will address the difficulties of trying to single out a specific subset of rights on the basis of the four E’s.
24. The international outrage produced by the refusal of Myanmar’s military junta to accept international relief aid to help the victims of Cyclone Nargis offers some strong evidence against this view.
25. See United Nations Trust Fund for Human Security, “Human Security Approach,” accessed June 23, 2016, http://www.un.org/humansecurity/human-security-unit/human-security-approach.
26. Rawls’s argumentative strategy in The Law of Peoples is instructive in this context. In order to demarcate the subset of “human rights proper,” the violation of which might trigger coercive intervention by external agents, he does not appeal to situations of massive human rights violations such as genocide or ethnic cleansing. Instead, he appeals to his hypothetical thought experiment of “decent hierarchical societies,” and he contends that subjects within such societies could have their human rights proper effectively protected, even if other rights he targets for exclusion (such as rights to democratic participation or to an education) were not. Jean Cohen rejects this argumentative strategy but does not offer an alternative upon which to base the bifurcation she proposes.
27. It is worth noting that the R2P doctrine does not postulate any bifurcation among types of human rights, nor does it call their interdependence into question. See ICISS, The Responsibility to Protect; and 2005 World Summit Outcome.
28. Jean Cohen, Globalization and Sovereignty, 161.
29. The individual complaint mechanisms have not yet entered into force for the Committee on Migrant Workers and the Committee on the Rights of the Child. For up-to-date information, see Office of the United Nations Office of the High Commissioner for Human Rights, “Human Rights Bodies—Complaints Procedures,” accessed June 23, 2016, http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx.
30. Jean Cohen, Globalization and Sovereignty, 168; my italics. She follows here the interpretation offered by Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” International Organization 54, no. 2 (2003): 217–52.
31. See Jean Cohen, “Rethinking Human Rights,” 593; and Cohen, Globalization and Sovereignty, 15, 163, 205.
32. In what follows, I focus on cases in which the appeal to international human rights law by weak states may strengthen their sovereignty and equality as participants in global economic institutions. For examples of how the use of international law by national courts can similarly strengthen state sovereignty, see Eyal Benvenisti, “Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts,” The American Journal of International Law 102, no. 2 (2008): 241–74. For an argument based on historical examples of how the enforcement of social and economic rights by national courts can strengthen the sovereignty of weak states, as against internationally determined austerity measures, structural adjustment, or developmental conditionality, see Kim Scheppele, “A Realpolitik Defense of Social Rights,” Texas Law Review 82, no. 7 (2004): 1921–61. For a similar line of argument, see also Katharine Young, Constituting Economic and Social Rights (Oxford: Oxford University Press, 2012), 192–222.
33. The TRIPS agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, 1869 U.N.T.S. 299; 33 I.L.M. 1197 (Apr. 15, 1994), http://www.wto.org/english/docs_e/legal_e/legal_e.htm#TRIPs.
34. For an overview of the events leading to the 2005 amendment to the TRIPS agreement, see Holger Herstermeyer, Human Rights and the WTO: The Case of Patents and Access to Medicines (Oxford: Oxford University Press, 2007), 1–18.
35. See World Trade Organization, “Draft Ministerial Declaration: Proposal from a Group of Developing Countries,” October 4, 2001, http://www.wto.org/english/tratop_e/trips_e/mindecdraft_w312_e.htm.
36. See United Nations Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/C.12/2001/15, December 14, 2001.
37. See World Trade Organization, “Doha Declaration on the TRIPS Agreement and Public Health,” WT/MIN(01)/DEC/2, November 20, 2001, http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm.
38. For an excellent analysis of the difficulties, see Herstermeyer, Human Rights and the WTO.
39. See Adam McBeth, “What Do Human Rights Require of the Global Economy? Beyond a Narrow Legal View,” in Human Rights: The Hard Questions, ed. Cindy Holder and David Reidy (Cambridge: Cambridge University Press, 2010), 162.
40. See United Nations Human Rights Council, Promotion of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, A/HRC/11/13, April 22, 2009, http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.13.pdf. The official text of the final resolution adopted by the Human Rights Council in July 2011 is available at http://www.business-humanrights.org/media/documents/un-human-rights-council-resolution-re-human-rights-transnational-corps-eng-6-jul-2011.pdf. See also United Nations Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (New York: United Nations, 2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
41. See ETO Consortium, Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, February 29, 2012, http://www.etoconsortium.org/en/main-navigation/library/maastricht-principles.
42. See International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, January 26, 1997, http://www.refworld.org/docid/48abd5730.html.
43. The concept of “due diligence” regarding state responsibility for nonstate acts was first developed in Velasquez Rodriguez v. Honduras, a case heard by the Inter-American Court of Human Rights. See Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988). Since then, it has been applied by other regional human rights courts and has been extended to cover human rights violations committed by private actors, such as cases of domestic violence against women. For a good overview of this development, see Lee Hasselbacher, “State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, and International Legal Minimums of Protection,” Northwestern Journal of International Human Rights 8, no. 2 (2010): 190–215. See also Monica Hakimi, “State Bystander Responsibility,” The European Journal of International Law 21, no. 2 (2010): 341–85.
44. See Margot E. Salomon, Global Responsibility for Human Rights (Oxford: Oxford University Press, 2007), 50–64.
45. For some in-depth analyses of the problem, see Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006); Salomon, Global Responsibility; James Harrison, The Human Rights Impact of the World Trade Organization (Oxford: Hart, 2007); and McBeth, “What Do Human Rights Require of the Global Economy?.”
46. See United Nations Global Compact, http://www.unglobalcompact.org.
47. See ETO Consortium, Maastricht Principles.
48. This is why such interventions are constrained by stringent precautionary normative criteria, such as seriousness of threat, proper purpose, last resort, proportional means, balance of consequences, reasonable prospects, proper authority, etc. See ICISS, Responsibility to Protect.
49. On this central element of the R2P doctrine, see “Post-Intervention Obligations,” in ICISS, Responsibility to Protect, 39–45. See also Hugh King, “The Extraterritorial Human Rights Obligations of States,” Human Rights Law Review 9, no. 4 (2009): 521–56.
50. See transcript in Jon Campbell, “President Obama Syria Speech Transcript Text September 10, 2013: Obama Makes Case for Military Strike on Syria,” Christian Post, September 10, 2013, http://www.christianpost.com/news/president-obama-syria-speech-transcript-text-september-10–2013-obama-makes-case-for-military-strike-on-syria-104254/#vLqg9HMJsWAszGxG.99.