I would like to begin by thanking Dominik Zimmermann for inviting me to write a post for the International Law Observer. It is a wonderful blog with thoughtful coverage of developments in international law, and I am honored to be able to participate. I thought I would use this post to briefly discuss my recent article, “The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law”, published in the Vanderbilt Journal of Transnational Law, and to comment on its possible implications for state obligations under international law. You can download the full text of my article here.
State sovereignty has long been a fundamental tenet of international law. At least since the Peace of Westphalia, states have recognized the principle of non-interference in the internal affairs of other states as an essential element of international relations. But after the Second World War, the atrocities perpetrated by the Nazi regime upon its own citizens shocked the conscience of the world, and the once-inviolable concept of sovereignty began to erode. The idea that international law should protect the rights of individuals, and not solely the rights of nations, began to gain wide acceptance, and international human rights treaties proliferated. These treaties guaranteed to individuals a wide variety of rights, including life, liberty, and free speech. The promise of the post-war period, however, was to prove largely empty. The rise of human rights law led to a contradiction in the international legal regime: individual rights were elevated into the realm of international law, but traditional principles of state sovereignty remained. Thus, international law guaranteed individuals rights, but states were guaranteed sole control over internal matters. There was little or no way, then, to enforce the provisions of international human rights treaties.
It was not until another wave of bloody crises in the 1990s that countries began to reconsider this state of affairs. The violence that erupted in Kosovo, Rwanda, and Somalia called into sharp relief the paradox that, while there was a clear moral duty to intervene to prevent the massacre of minority populations in these countries, the international legal framework forbade any such intervention. Although the United States did ultimately intervene in Kosovo, many commentators believed that this was an illegal intervention. These debates created pressure on the world’s powers to craft a new legal norm—a norm that would allow humanitarian intervention in certain limited circumstances. The resulting “responsibility to protect” doctrine held that individual states have a responsibility to protect their citizens from genocide, ethnic cleansing, or other large-scale loss of life, and if a country is unable or unwilling to do so, that responsibility falls upon the international community as a whole. As a last alternative, military intervention is permitted.
That is where the norm stands today. But in solving one contradiction, the responsibility to protect doctrine has created another. The fundamental problem with the pre-World War II legal regime was that it acknowledged state sovereignty as inviolable, leaving citizens at the whims of their governments. This concept of the state as inviolable sovereign was dominant in the pre-World War II era. That logic, however, became unsustainable after World War II when the world recognized that certain “internal” affairs were the concern of all states. This development paved the way for the creation of the responsibility to protect doctrine. At the same time, the implications of this doctrine were not fully worked out.
Today, international law remains prisoner in many ways to the pre-World War II logic in its treatment of other fundamental rights such as the freedom of speech. The freedom of speech, although guaranteed by numerous international treaties, is still considered an internal matter, and not one that calls for protection by the international community. The current understanding of the international law of free speech is beholden in important ways to antiquated and discarded notions of the inviolability of state sovereignty. But, as I argue in my article, a world that demands respect for human rights cannot coexist with a world that demands absolute respect for state sovereignty. International law must recognize that free speech violations are the concern of all states.
One criticism of this view is that there are obvious differences between the suppression of free speech and genocide. Commentators point out that the widespread loss of life is a significantly greater harm than the widespread violation of free speech rights. Furthermore, some have questioned whether we really want to have states intervening militarily to protect the free speech rights of foreign citizens. These are important questions, and ones that I address in my article, but I would like to highlight a few salient points in response.
While it is undoubtedly true that the loss of life is a greater harm than the loss of free speech rights, the major arguments (moral, legal, and consequential) in favor of the responsibility to protect doctrine apply equally to free speech as to crimes against humanity. Freedom of speech is a fundamental right. The widespread suppression of speech may cause us to doubt that state sovereignty is worthy of respect under Rawls’s and Walzer’s discussion of well-ordered societies. An obligation to intervene to protect free speech may persuade states to refrain from muzzling the media or jailing dissidents.
Another important distinction is that intervention, as that term is used in my article, encompasses much more than just military invasion. Nontraditional forms of intervention may prove more effective, and acceptable, than military force. The proactive use of modern technologies—such as the internet, radio, and television—is just one example of potential forms of intervention. Nicholas Kristof recently wrote an important article discussing the United States government’s reluctance to support financing for proxy servers that enable Chinese and Iranians to evade censorship (you can find the article here). The use of proxy servers is exactly the kind of intervention that my article suggests we should consider.
In any case, I look forward to hearing your comments, and I hope to be able to answer any questions.
William,
thanks for your contribution. In your text you raise a number of interesting points. I agree with your assessment that the concept of absolute sovereignty has been eroded over the past half-century and that a world that demands respect for human rights cannot coexist with a world that demands absolute respect for state sovereignty. This is the underlying issue that permeates not only the protection of human rights under current international law but also e.g. the development of the international judiciary, something that is close to my heart;) However, I think it is important to underline at the outset that support for the R2P and maintenance of State sovereignty must not be in contradiction. Remember that the R2P ultimately seeks to ensure the adherence of a State (or rather Government) to fundamental human rights and to prevent/stop the violation of these rights. It is a duty of any sovereign State to protect these rights and if this duty is not followed then the respective State or Government has not upheld its responsibilities as a sovereign. The R2P is thus, seen from this perspective with which one may agree or disagree, merely supporting and promoting State sovereignty. Granted, that the conception of State sovereignty as a duty to uphold certain human rights that have been defined on a global level without necessarily considering the regional/local context is not without problem. This brings me to my second point.
Your text raises the inevitable question of the scope of the doctrine of responsibility to protect. Whereas I would agree that the freedom of speech is an important and fundamental human right, the question must be asked where one should draw the line; which human rights may be protected by the doctrine of the R2P with all the tolls that are at the disposal under this doctrine (ultimately military intervention)? And more importantly, by which criteria should one select those human rights? Is it enough if the human right is enshrined in the European and Inter-American human rights conventions? Must a certain number of States at least have expressed their support for that the respective human right is an individual right that binds State authorities? Are the freedom of assembly, the right to an effective remedy and the right to a fair trial such rights, the violation of which should be answered by some (any) sort of intervention by the international community?
Finally I would like to hear your position on the relation between the R2P, usually considered as a duty for the international community as a whole (e.g. in the shape of the UNSC) to intervene, and the concept of humanitarian intervention, which also may occur unilaterally. Is the concept of State sovereignty eroded to such a degree that we should review our concept of humanitarian intervention as well, and perhaps go beyond the mass atrocities that usually are considered to trigger this mechanism by including violations of the human rights mentioned above?
William,
thanks for this post. I read it with great interest, since I’m interested in R2P as a doctrine and in its implementation. I am afraid though that adding freedom of speech under R2P is far-fetched. Doing so equates violations of the freedom of speech to genocide, war crimes, crimes against humanity and ethnic cleansing. I doubt the usefulness of adding other rights under R2P, other than what is already listed under it. But the nature of the freedom of expression in that it allows for restrictions and derogations (in all human rights instruments) is entirely different from the prohibition on genocide as a jus cogens norm.
I have to admit that I have problems with, in my view, sweeping statements such as that on p. 304 stating ‘The established nature of the freedom of expression in international law, as evidenced by the multiple human rights treaties, certainly allows the conclusion that intervention to protect this fundamental right is legal under the UN Charter.’ The established nature of this right to which you refer, that is freedom of expression, is that of a derogable right under certain circumstances and within certain parameters. Just to take two examples, Europe and the US have a different approach to what is allowed and what is not allowed under the freedom of expression. Should the US intervene in the EU because according to US standards freedom of expression was violated? Or should the US drop a bomb in Strasburg because the European Court of Human Rights rendered a decision which according to its legal standards would amount to a violation of the freedom of expression? I guess not.