1/2009 Content

84 (2009) 1: Sovereignty in Transition

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Sovereignty and Responsibility to Protect
Andreas von Arnauld

Based on the idea of international community’s residual responsibility for protection against mass violations of human rights, the concept of a responsibility to protect could mark a new step in the process of opening-up sovereign statehood. This essay sketches the concept in its development and basic elements, and discusses open questions from the perspective of international law. Eventually, it is doubtful whether the responsibility to protect can already be regarded as an emerging norm of international law. For this end, further internal differentiation of criteria and means is necessary. Perhaps the future of the concept lies not so much with the creation of concrete legal obligations, but in carving a possible new constitutional principle for the international community. After further development, it could thus serve as a conceptual framework for different elements of contemporary international law.

From “New Interventionism” to the R2P. The Emergence of Human Rights Norms within the UN Security Council
Tobias Debiel / Nils Goede / Holger Niemann / Robert Schütte

This paper analyzes how formative events have influenced the change of the role conception and the behavior of the UN Security Council (SC) with regard to human rights protection since the beginning of the 1990s. Although being shaped by heterogeneous membership and partial power interests, the SC is under pressure to develop consistent strategies in dealing with crises. In this regard we identify three different strategies – trivialization, justification and rectification – which are used by the SC to reduce existing incongruities between its role conception and a perceived crisis. The choice of particular strategies is thereby determined by experiences from the respective former crisis. This leads to an oscillation between pro-active, even military action and evasive behavior. The emergence of a human rights protection norm, thus, can be best understood as a path-dependent, non-linear process.

Political Rule as Responsible Self-Determination
Frank Schorkopf

The responsibility to protect will be successful as a rule of international law and as political mechanism of intervention if the aspired enhancement of action against the aberrations of classical statehood can be reconciled, at the same time, with the core of the legal concept “sovereignty”. Because sovereignty is the code for a basic factual context recognised and protected by international law: Sovereign statehood represents a pacified space and its internal order on the basis of individual liberty and collective self-determination. The crucial questions are where the boundary between core and periphery runs in order to sustain an existing regime of responsible self-determination and who determines the course of the line.

Sovereignty as Responsibility? The United States, Conditional Sovereignty, and the Rules on the Use of Force
Theresa Reinold

According to Thomas Hobbes, sovereignty implies not only rights but also responsibility for the protection of fundamental values. We are currently witnessing a (discursive) renaissance of this instrumental notion of sovereignty as articulated by Hobbes. Failure to comply with sovereign responsibilities is being invoked to justify military intervention into the domaine réservé of sovereign states – be it for the protection of human rights, in the fight against terrorism, or for counter-proliferation purposes. This article explores whether sovereignty as responsibility remains a moral aspiration or whether it is actually supported by uniform state practice and opinio juris. It is at issue whether changing notions of sovereignty have precipitated a transformation of the customary rules governing the use of force. Of special interest here is the law-making influence of the United States, who – by virtue of its preponderant resources and global reach – exert a disproportionate influence on the rules governing the use of force in international relations.

Further Article

External Intervention in Myanmar: From Responsibility to Protect to Humanitarian Dialogue
Marco Bünte

The article discusses the invocation of the responsibility to protect principle after the cyclone Nargis in Myanmar in May 2008. After looking back on the failed attempts of the United Nations to engage in Myanmar and to improve the human rights situation from outside, the article analyses the discussion in the Security Council on the responsibility to protect. The criteria for invoking the principle of responsibility to protect were not fulfilled during the crisis and the permanent Security Council members China and Russia blocked a move to further intervene in the internal affairs of the country. Accordingly, the discussion also served as a warning for the military regime in Myanmar and, therefore, triggered a new willingness to cooperate with the international community.