The Arab Spring (and its troublesome, yet still hopeful, aftermath in Egypt), intervention in Libya, nonintervention in Syria and Bahrain, drone military operations in Pakistan, Yemen, Somalia, the influx of unwanted immigrants and walls of exclusion, and selective applications of international criminal law draw into question the most basic of all ideas of world order: the sovereignty of territorial states, and its limits. Also, at issue, are the closely related norms of international law prohibiting intervention in the internal affairs of states and affirming the fundamental right of self-determination as an inherent right of all peoples. These are basic rules of international order acknowledged in the United Nations Charter, taking the form of prohibiting the Organization from intervening in matters ‘essentially within domestic jurisdiction’ and through affirmations of the right of self-determination.
The latter is only aspirational in the Charter, but becomes obligatory as a result being posited as common Article 1 of the two human rights Covenants and being listed as one of seven principles enumerated in the authoritative Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN General Assembly Resolution 2625, 1970).
At the same time, as Ken Booth provocatively pointed out almost 20 years ago one of the great failings over the centuries of the Westphalian framework of world order (based on treaties of peace in 1648 concluded at the end of the Thirty Years War that are treated as establishing the modern European system of territorial states premised on the juridical ideal of sovereign equality) was associated with sovereign prerogatives to possess unconditional authority in state/society relations. Booth showed that respect for sovereignty had legitimated the inner space of states as a sanctuary for the commission of what he called ‘human wrongs,’ that is, non-accountable and cruel abuses of persons subject to territorial authority. Historically, the West claimed rights of intervention, often in the name of ‘civilization,’ in the non-West, particularly in the decaying Ottoman Empire of the 19th and early 20th centuries. The great wakeup experience, at least rhetorically for the liberal West, was the non-response at the international level to the lethal internal persecutions in Nazi Germany during the 1930s, which were not only within a sovereign state, but within a country with a high claim to be a major embodiment of Western civilization.
The responses after World War II, mainly expressed via international law, consisted of the Nuremberg and Tokyo trials of surviving German and Japanese leaders, the adoption of the Genocide Convention, and the negotiation and approval of the Universal Declaration of Human Rights (UDHR), as well as the establishment of the United Nations itself. These were well-intentioned, although somewhat ambivalent, gestures of global responsibility that generated criticisms and even suspicions at the time: the Nuremberg and Tokyo standards of individual accountability for crimes were only imposed by the coalition of victors in World War II upon the losers, exempting the Allied Powers from any legal responsibility for the terror bombings of German and Japanese cities and the atomic bombing of Hiroshima and Nagasaki; the Genocide Convention seemed deficient due to its failure to provide mechanisms for enforcement; the UDHR was drafted under the sway of Western liberal individualism as a hegemonic orientation, and was only endorsed in the form of a non-binding ‘declaration,’ a clear signal that no expectation of enforcement existed; as well, the legitimacy of the colonial structures of foreign ruler were not questioned until challenged by a series of populist uprisings throughout the non-West that produced some bloody wars as in Indochina and Algeria..
In passing, it should be observed that the West never respected the sovereign rights of the peoples of the non-West until it was forced to do so. Whether it was European colonialism that extended its reach throughout Africa and Asia or the assertions of American hegemony over Latin America beneath the banner of the Monroe Doctrine the pattern was one based on relations of hierarchy, not equality. This was accompanied by a refusal to extend the Westphalian writ of mutual respect for sovereign rights beyond the Euro-American regional domain until the imperial order began to crumble after World War I. First, the Good Neighbor policy seemed to reaffirm sovereignty for Latin America, but only within limits set by Washington, as the Cold War era of covert and overt interventions confirm. In the Middle East and Africa various experiments with colonial halfway houses were undertaken within the framework of the League of Nations, and formalized as the Mandates System. Secondly, after World War II a variety of nationalist movements and wars of national liberation broke the back of European colonialism as an acceptable political arrangement, and the idea of the equality of sovereign states was globalized as a matter of juridical doctrine, although not geopolitically.
During the last six decades the world has moved forward in pursuit of global justice, or has it? On the one side, human rights has matured beyond all expectations, and to some degree exerts a generalized moral and political force subversive of national sovereignty by validating a higher law that exists above and beyond the legal order of the state. This subversive thrust is reinforced by the development and institutionalization of international criminal law, enforcement of accountability claims against such pariah leaders as Milosevic and Saddam Hussein, as well as lesser figures in the entourage of tyrants, the establishment of the International Criminal Court, arrest warrants for the likes of el-Bashir of Sudan and Qaddafi. And, perhaps, most significantly in relation to global justice, the rise of respected transnational NGOs that have created a somewhat less selective pressure for implementation of human rights norms, but one that remains weighted toward political and civil rights that are given priority in the liberal democracies of the North, and one that gives little attention to the economic, social, cultural, and collective rights that possess primary importance to developing societies in the South. In actuality, the UDHR was correct in its integration of all forms of human rights in a single coherent legal instrument, but it became a casualty of the Cold War ideological tensions between capitalism and socialism, with one side championing a liberal individualist understanding of human rights and the other side a collective conception.
And yet, these various moves toward what might be called ‘humanitarian globalization’ achieved at the expense of older conceptions sovereignty are too often subordinated to the realities of geopolitics. That is, the application of legal standards and the assertion of interventionary claims remain imbalanced: the West against the rest, the North against the South, the strong against the weak. Even the supposedly globally oriented human rights NGOs devote most of their attention to non-West violations when it comes to alleged infractions of international criminal law. Selective applications of law and morality tarnish the integrity of law and morality that is premised upon fidelity to principles of equality and reciprocity. This makes supposedly challenges to sovereignty suspect, but are they also worthless, or as some argue, worse than worthless?
There are two contradictory modes of response. The liberal answer is to insist that progress in society almost always occurs incrementally, and doing what is possible politically is better than throwing up one’s hands in frsutration, and doing nothing. So long as targets of intervention and indicted leaders are given fair trials, and are convicted on the basis of the weight of the evidence, such results should be affirmed as demonstrating an expanding global rule of law, and serving the interests of global justice. The fact that the principal states intervene at will and enjoy impunity in relation to international criminal law, remains a feature of world politics, and is even given a prominent constitutional status at the UN by granting a veto power to the five permanent members of the Security Council.
The critical response argues that the prevalence of double standards contaminates law, and makes it just one more instrument of power. The authority and legitimacy of law depends on its linkage to justice, not power. To enforce prohibitions on the use of aggressive force or the commission of crimes of state only on losers and the weak is implicitly to cede the high moral and legal ground to the richest and most dangerous political actors. It makes available a humanitarian disguise for abusive behavior in a post-colonial global setting, providing pretexts for disregarding the dynamics of self-determination, which is the legal, political, and moral lynchpin of a system of sovereign states detached from the hierarchies of geopolitics.
In a world beset by contradictions, there are only hard choices. There seem to be three kinds of situation that somewhat transcend this tension between liberal and critical perspectives: a severe natural disaster that cannot be addressed by national capabilities ( Asian tsunami of 2004; Haiti earthquake of 2010) acute or imminent genocide as in Rwanda (1994) where a small international effort would have seemed likely to avert the deaths of hundreds of thousands; a mandate to act issued by the UN Security Council as in Libya. In each instance, there are risks, uncertainties, and unanticipated effects; especially worrisome is the recent pattern of authorizations of force by the Security Council. Both in the Gulf War (1991), to some extent the sanctions currently imposed on Iran, and now with the Libyan intervention, the mandate to use force is stretched beyond the limits specified in the language of authorization. In the Libyan case, Security Council Resolution 1973 the initial justification for intervention was justified by reference to an emergency situation endangering the lives of many Libyan civilians, but converted operationally and massively by NATO into a mandate to achieve regime change in Tripoli by dislodging the Qaddafi leadership. No effort was made to secure a broader mandate from the Security Council and nothing was done to insist that NATO operations be limited by the terms of the original UN authorization.
What can be done? We have little choice but to cope as best we can with these contradictions, especially when it comes to uses of force in the course of what is labeled as a ‘humanitarian intervention’ or an application of the ‘right to protect’ norm. I would propose two ways to turn the abundance of information on these issues into reliable knowledge, and hopefully thereby, to engender greater wisdom with respect to the specifics of global policy and decision-making. First, acknowledge the full range of realities in international life, including the absence of equal protection of the law, that is, judging claims and deciding on responses with eyes wide open by being sensitive to the context, including its many uncertainties. With these considerations in mind adopt a posture of reluctance to use force except in extreme cases. Secondly, presume strongly against reliance on hard power resolutions of conflict situations both because the costs almost always exceed the estimates of those advocating intervention and because military power during the period of the last sixty years is rarely able to shape political outcomes in ways that are on balance beneficial for the society on whose behalf the intervention is supposedly taking place.
When it comes to severe human rights abuses somewhat analogous considerations apply. In almost every instance, deference to internal dynamics seems preferable to intervention-from-without, while soft power interventions-from-below-and-without are to be encouraged as expressions of emergent global democracy. Victimization and collective acute vulnerability should not be insulated from assistance by rigid notions of sovereignty, but nor should self-determination be jeopardized by the hypocritical moral pretensions of hegemonic states. This is inevitably a delicate balance, but the alternative is to opt for extremes of passivity or activism.
In effect, to the extent possible, global challenges to sovereignty should take the form of transnational soft power tactics of empathy as identities of persons around the globe become as globalized (and localized) as markets. The recent furor aroused by Freedom Flotilla II is illustrative of an emerging tension between the role of sovereign states in defining the contours of law and morality and that of popular forces mobilized on behalf of those unjustly suffering and neglected by the world of states. Ideally, the UN should act as a mediating arbiter, but the UN remains a membership organization designed to serve the diplomacy of sovereign states and the states system, and is generally hostile to the claims of global civil society however well founded. One attractive proposal to endow the UN with a more robust mediating role is to establish some form of Global Parliament, perhaps building on the experience of the European Parliament that has evolved in authority and political weight over the decades. A more relevant innovation consistent with the above analysis would be the establishment of a UN Humanitarian Emergency Peace Fund with independent funding, an authorizing procedure that was not subject to a veto, and an operational discipline that ensured that the implementation of a mandate to act forcibly did not exceed its boundaries.
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Tags: Cold War, History, International Criminal Court, Sovereignty, Thirty Years War, United States, Universal Declaration of Human Rights, World War II
Global Justice in the 21st Century 
Beyond The Haunted Imagination
12 FebEver since atomic bombs were exploded over the Japanese cities of Hiroshima and Nagasaki in the closing days of World War II end of the world forebodings have been present in Western cultural consciousness. In the background of such thinking is the religious anticipation of a day of judgment when life in earth will be replaced by the consignment of everyone then living to either the hell of damnation or the heaven of salvation. The first type of end time thinking is based on the fear that the Promethean gift of technological innovation when carried to its omega point will produce a big bang terminal moment in the human experience. The second kind of end time thinking imagines that the gift of planetary life was a testing time for the human species that would end with endless punishment for the many and eternal rewards for a few, and was divinely programmed in a fatalistic manner beyond human capacity to control or alter. We live now amid both types of end time thinking, a realization made more troublesome because such alarmist patterns of awareness while rather widespread have not generated any strong reactive movement based on prudence and preservation. Instead, all of us avert our eyes most of the time, and most manage to look away all the time often with the help of drugs and denial. Only a few are able to fix their full gaze on the impending cosmic wreck without turning away.
One of those few is a poet named C.K. Williams who in an essay, “Nature and Panic,” which appeared in the October 2012 issue of Poetry magazine, acknowledged panic in response to what he observes in the world around him. In words that resonate with me Williams wrote: “Like many people I know, I often have a somewhat—no, a wholly—frightening vision of the future of humanity and of our earth. There are periods when I live in a state of acute anxiety, indeed, near panic, about what awaits our children and grandchildren. Last year, I realized one day that every poem I was writing or attempting to write, had global warming and its consequences either as its overt or implied theme. Sometime I’m depressed beyond writing or saying anything at all; I fall into a funk that threatens never to end.”
Williams goes on to refer to Cormac McCarthy’s The Road, which paints the darkest possible picture of the desperate aftermath of a totalizing apocalyptic catastrophe that reduces human existence to the barest of survival struggles waged among roving gangs of desperate people ready to feast on one another. Such an extreme playing out of dark forebodings provokes an attitude of resentment in Williams, not because it is an exaggeration of what lies in store for humanity, but because it rings true! In Williams’ words: “I’m not the only person I know who’s expressed regret at having injested the book: I feel sometimes indignant that I have to have it in my consciousness. If there ever was a book that embodies the extremity of the emotion we call panic, this has to be it. I find it’s like having a piercing scream in my mind, one that, when the book comes to mind, which it does more often than I’d like, goes off like a siren.”
From this low point of panic, Williams finds his solace in beauty as an authentic manner of not succumbing to the torments of reason and the all too realistic tremors of a beckoning end time. He takes note of the pervasiveness of beauty in all its forms—music, painting, architecture, poetry—“if not in every day then in every age” as something that lifts human experience to a higher realm of being that is no longer vulnerable to panic no matter how dire the warning signs. Williams writes “[o]ften our first experience of beauty will be the first hint of what each of us at some point will dare call our soul.’ This allows our exposure to great art of any kind to carry us beyond ourselves and whatever conditions we fear in the world. Williams notes that the first creators of painting retreated to caves so as to avoid being distracted by the lesser wonders of nature that he seems also to regard with awe, yet a lesser awe, because these wonders are there to be found rather than there to be discovered in the solitary mineshafts of the creative imagination. Williams ends his extraordinary pilgrimage beyond the realms of end time with these almost hopeful words: “Beauty saves us. Beauty will save us. The world, though, is still ours to cherish, and ours to protect.”
This brave sentiment is less an act of will than a refocusing of the human spirit. While we are alive, let us be saved by beauty, and I would add by love, but let us not forget that the world is not yet alien, but contains flowers and birds and stars and moonlight and rainbows and many beautiful people of all shades and beliefs. It is worth protecting, and cherishing, and who really knows what the future will bestow? Despite sharing with Williams “a pessimism of the intellect” I also know deep down that the struggle for the human future is far from over, that the world and all those who are being made to daily suffer close by and at great distances are both “ours to protect.”
Tags: C.K. Williams, Earth, End time, History, Human, Poetry, Williams, World War II