The European Journal of International Law Vol. 20 no.

3 © EJIL 2009; all rights reserved

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Humanity as the A and Ω of

Sovereignty: Four Replies to
Anne Peters

Emily Kidd White* mass atrocity, the international commu-

nity has a residual responsibility to do so.
Anne Peters in ‘Humanity as the A and
1
Introduction Ω of Sovereignty’ argues that a ‘reversal
Often the duty to intervene in sovereign of the principal–agent relationship be-
states to prevent mass atrocity is used as tween the state and human beings’ (at
a starting point for engaging in broader 515) is occurring and the result is the
questions of global justice.1 While debate humanization of the principle of sov-
on this issue has historically centred on ereignty. The endorsement of R2P, for
the existence of a right to intervene, this Peters, ‘ousted the principle of sover-
has changed with the recent promulga- eignty from its position as a Letztbe-
tion and adoption of the Responsibility to gründung (first principle) of international
Protect (R2P).2 Rather than employing law’ (at 514). For Peters, the principle of
the language of rights, the Responsibility humanity is now the foundation and telos
to Protect instead insists that sovereign of state sovereignty. This response sug-
states have a primary responsibility to gests two critiques of Peters’ argument.
protect their populations from genocide, Both concern political limitations to the
ethnic cleansing, crimes against human- principle of humanity in international
ity, and war crimes. Where states mani- law. The first concerns the theoretical
festly fail to protect their citizens from justification for limiting intervention to
clear instances of genocide and crimes
* Associate Editor, EJIL. Email: white@exchange.
law.nyu.edu.
1
For instance, Beitz in ‘Justice and International
Relations’, 4 Philosophy and Public Affairs (1975) form by the UN in 2005. See International Com-
360 accepts that military intervention is neces- mission on Intervention and State Sovereignty
sary in the face of mass atrocity and extrapo- (ICISS), ‘The Responsibility to Protect’ (2001),
lates this finding to argue for global distributive available at: www.iciss.ca/pdf/Commission-
justice. Report.pdf; and UN Doc. A/RES/60/1, 15 Sept.
2
The notion of a ‘responsibility to protect’ was first 2005, at paras 138–139, available at: http://
proposed by the International Commission on daccessdds . un . org / doc / UNDOC / GEN / N05 /
Intervention in State Sovereignty in 2001 and 487 / 60 / PDF / N0548760 . pdf ? OpenElement
subsequently adopted in a more circumscribed (‘R2P Documents’).

EJIL (2009), Vol. 20 No. 3, 545–567

546

EJIL 20 (2009), 545–567

against humanity when the principle another way, if external sovereignty, for
aims to ensure that all human beings Peters, is contingent upon a state’s will-
have their basic needs, interests, and ingness and ability to secure the basic
security fulfilled. The second questions rights, needs, interests, and security of
the concept of an illegal Security Coun- its people, then how is sovereignty pre-
cil veto as well as the contention that the served in all cases of human rights abuse
rule of law applies to Security Council falling short of genocide and crimes
decisions. Broadly, both critiques con- against humanity? This is a conceptual
cern the emergence of ‘political limits’ in and normative question. If sovereignty
a new global space organized by a con- is ‘humanized’ as Peters posits, the cat-
ception of sovereignty rooted in the prin- egory of legitimate military intervention
ciple of humanity. must be broader than the article suggests.
Paradoxically, Peters insists on this limit
to military intervention while also argu-
2
The Problem of ing that where a state fails to provide for
Constructing Limits under basic human rights ‘such omissions lead
to the suspension of external state sover-
the Principle of Humanity eignty’ (at 526).
For Peters, the ‘normative status of Peters asserts that the principle of
sovereignty is derived from humanity, humanity qualifies the right to sover-
understood as the legal principle that eignty and suggests that only ‘an ille-
human rights, interests, needs, and secu- gitimate state would be estopped from
rity must be respected and promoted’ asserting a right against economic or
(at 514). Here the principle of human- even military intervention’ (at 521).
ity serves both as the foundation of the While Peters cautions that a weakening
international legal system and as its of the norm of non-intervention could
telos. From the perspective of humanity, negatively impact on human security,
argues Peters, ‘conflicts between state she does not explain how the principle
sovereignty and human rights should of humanity must itself be attenuated in
not be approached in a balancing proc- cases of human rights abuse other than
ess … but should be tackled on the basis genocide and crimes against humanity.
of a presumption in favour of humanity’ Noting this conceptual and norma-
(at 514). While this is the formula Peters tive gap, Peters’ framework appears ill-
provides for conflicts between state sov- suited to answering certain important
ereignty and human rights, Peters limits questions concerning the international
the instance of military intervention to legal system. For instance, in the context
clear cases of mass atrocity or, more spe- of human rights, is a state acting con-
cifically, to clear cases of genocide and trary to international law only when it
crimes against humanity. There are a engages in genocide or crimes against
number of political and ethical reasons humanity? What is the international
to limit military interventions in this legal threshold for human rights abuse? Is
way. What is unclear, however, is how it illegal or illegitimate for a state to imple-
this constraint arises for Peters under ment economic policies which result in
the governing principle of humanity. Put some of its people lacking certain basic
 Humanity as the A and Ω of Sovereignty: Four Replies to Anne Peters


547

goods? Noting Peters’ foundational com- 3
The Political Limits of an

mitment to human interests, would it
be illegal or illegitimate for a political
‘Illegal’ Security Council Veto
policy to prevent persons from pur- Peters argues that ‘the humanization of
suing their basic interests? How per- sovereignty has shifted the focus from
sonalized is this conception of inter- rights of states to the needs of humans
est? How broad is Peters’ conception and has thus promoted a significant evo-
of human need? For instance, Martha lution of international law in the direc-
Nussbaum’s illuminating list of human tion of a legal obligation of the Security
needs includes bodily integrity.3 This Council to take humanitarian action’
includes the need ‘to move freely (at 540). Peters suggests that ‘[u]nder
from place to place; being able to be the rule of law, the exercise of the veto
secure against violent assault, includ- may under special circumstances con-
ing sexual assault … having oppor- stitute an abus de droit by a permanent
tunities for sexual satisfaction and for member’ (at 540). What’s more, if R2P
choice in matters of reproduction’.4 were, over time, considered a ‘relevant
Under an international legal regime rule of international law’ (at 540) a veto
premised upon a ‘humanized sover- could eventually be considered illegal in
eignty’, why would a state which sys- the face of mass atrocity. While an ‘ille-
tematically permitted violations of the gal’ veto is presented in the article as a
bodily integrity of its female population possible outcome of the adoption of R2P
not render it a suitable subject for mili- principles into international law, it is
tary intervention? important to consider that the notion of
These questions highlight the incon- limiting the veto, proposed in the original
sistency of premising sovereignty upon report of the International Commission
the principle of humanity whilst also on State Sovereignty, was not included in
strictly limiting the grounds for military the outcome document of the UN World
intervention to clear cases of genocide Summit in 2005.5 As such, the version
and crimes against humanity. Peters’ of R2P to be potentially considered as
rationale for this critical threshold is a relevant rule of international law is
absent from the article. And, while it is unlikely to contain provisions regarding
persuasively argued that states provide the Security Council veto. Nonetheless,
functions which make possible self-de- two further critiques of this argument
termination and human rights regimes, follow. First, this assumption that, over
the question remains why intervention time, R2P practice could result in the pos-
is appropriate only in cases of genocide sibility of an ‘illegal’ veto misunderstands
and crimes against humanity when sov- the political nature of the Security Coun-
ereignty is, for Peters, premised upon the cil and political power more generally.
principle of humanity. Secondly, it is unclear that the Security

3
M.C. Nussbaum, Beyond the Social Contract:
5
Capabilities and Global Justice (2002), at 41–42. R2P Documents, supra note 2, at paras 138–
4
Ibid. 139.
548

EJIL 20 (2009), 545–567

Council is constrained by the Rule of Law military intervention often centre on

as proposed by the article. the characterization of the conflict. For
First, the Purpose of the Security instance, while intervention is gener-
Council, as stated in Article 1, is to ally accepted in cases of genocide and
‘take effective collective measures for ethnic cleansing, it is not in cases of
the prevention and removal of threats civil war. A P5 member can effectively
to the peace’. Peters argues that, under veto an intervention by arguing that a
the principle of humanity, the Council particular conflict is, in fact, a civil war.
‘has the duty to authorize humanitar- And unless we have accurate tools with
ian action if the very narrow condi- which to discern the motives behind
tions of right cause, proper purpose and state action, P5 members will be able to
proportionality are fulfilled’ (at 544).6 exercise the veto power, without reper-
Suggesting that a veto could be consid- cussion, where they publicly disagree
ered illegal in the future requires both over the characterization of a conflict.
that the motives and/or reasons why a In addition, powerful states can take
P5 member vetoed an intervention are critical purchase away from the charge
publicly known and also that the need of an ‘illegal veto’ in even more obscure
for an intervention can be objectively ways. In legal argument, facts and evi-
determined outside the Security Coun- dence persuade. However, it will be the
cil. At present, there is no duty placed well-resourced and networked nations,
upon the P5 to provide reasons for their more often than not, which have the
use of the veto power. While one might resources to see, interpret, and even
argue that Section 1(1) of the United manipulate the facts on the ground of
Nations Charter provides for this duty, a particular conflict. For instance, the
this has not been the practice. And, delay of intervening forces in Rwanda
even if a duty to provide reasons arose, can, in part, be attributed to the limited
there would still be the age-old issue number of countries which had accu-
between rhetoric and political motive rate information about the nature of vio-
to contend with.7 Simply stated, a P5 lence transpiring in the country. While
member could exercise its veto based on public facts about a conflict might assist
an improper motive and, publicly, rea- in limiting the scope of rhetoric used by
son that a particular criterion for inter- a P5 member to avoid humanitarian
vention had not been satisfied. Indeed, action, it is important to note that, gen-
Security Council debates concerning erally, the facts concerning the conflict
are collected and disseminated by P5
members or their allies.
Secondly, the article states that the
6
‘rule of law also governs decisions of the
It is also important to note here that the proposal
to include criteria for intervention, including the Security Council’ (at 538). The second
just war criteria posited by Peters, was explicitly Purpose of the United Nations Charter
rejected by most Western nations and was not does state that the Council is to further
included in the Outcome Document.
7
its mandate ‘in conformity with the prin-
See, e.g., Pericles’ Funeral Oration, Bk II, at par-
as 35–46, in The Peloponnesian War: Thucydides ciples of justice and international law’.
(trans. T. Hobbes). However, exactly how the rule of law
 Humanity as the A and Ω of Sovereignty: Four Replies to Anne Peters


549

operates to constrain the Security Coun- Peters argues that, as the rule of law
cil is a matter of great contestation.8 binds the Security Council, it could legally
If Peters is suggesting that there is a compel the authorization of military
right to review Security Council decisions, intervention. The rule of law constrains
this question has not yet been defini- the exercise of power. The doctrine tradi-
tively answered. Indeed, the Interna- tionally and overwhelmingly operates to
tional Court of Justice has not yet ruled limit or shape decisions only after a politi-
on the right to review Security Council cal body has decided to pursue action. It
actions.9 Furthermore, the European is, of course, true that the rule of law can
Court of Justice (ECJ) in the recent Kadi operate to compel some state action such
decision found that it had no authority as requiring an administrative body to
to review Security Council resolutions hear a respondent’s reply. However, it
in the absence of domestic or Commu- is contentious to assert that the rule of
nity implementation.10 The ECJ found law operates to compel policy decisions.
that ‘the Community is based on the rule Peters suggests that ‘[r]ecent state prac-
of law, inasmuch as neither its Mem- tice and case law on UN Sanctions which
ber States nor its institutions can avoid risk infringing human rights have made
review of the conformity of their acts with clear that the Security Council is bound
the basic constitutional charter, the EC at least by customary human rights law
Treaty’.11 However, the ECJ, overturning and by the “Principles of the Charter”’ (at
the CFI’s suggestion, explicitly found that 538). These examples, however, illustrate
in the absence of domestic or Community that once the Security Council has acted,
implementation, it has no authority to certain legal norms are applicable. This
review Security Council resolutions for is importantly different, however, from
compliance with even the most funda- requiring an explicitly political body,
mental international norms of jus cogens. such as the Security Council, to act.
What’s more, the ECJ found that Security doi: 10.1093/ejil/chp063
Council resolutions should be accorded
‘special importance’ in matters of inter-
national peace and security.12

8
See, e.g., J. Alvarez, International Organizations as
Law-makers (2006), in particular Chs 3 and 4 on
the Security Council.
9
Case concerning Questions of Interpretation and Ap-
plication of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie (Libya v. Unit-
ed States and United Kingdom), Request for Indica-
tion of Provisional Members [1992] ICJ Rep 114,
and ICJ Press Release 2003/29, 10 Sept. 2003.
10
Joined Cases C-402/05 P and C-415/05 P, Kadi
& Al Barakaat v. Council of the European Union, 3
CMLR 41 (2008) (Kadi).
11
Ibid., at para. 281 citing Case 294/83, Les Verts
v. Parliament [1986] ECR 1339, at para. 23.
12
Kadi, supra note 10, at 294.