Sovereignty and the Responsibility to Protect: A New History 9780226077086

Citation preview

sovereignty and the responsibility to protect

sovereignty and the responsibility to protect

A New History

luke glanville

the university of chicago press chicago and london

luke glanville is a fellow in the Department of International Relations at the Australian National University. He is coeditor of several books, including Protecting the Displaced and The Responsibility to Protect and International Law. The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2014 by The University of Chicago All rights reserved. Published 2014. Printed in the United States of America 23  22  21  20  19  18  17  16  15  14    1  2  3  4  5 isbn-13: 978-0-226-07689-8 (cloth) isbn-13: 978-0-226-07692-8 (paper) isbn-13: 978-0-226-07708-6 (e-book) doi: 10.7208/9780226077086.001.0001 Library of Congress Cataloging-in-Publication Data Glanville, Luke.   Sovereignty and the responsibility to protect : a new history / Luke Glanville.     pages.  cm.   Includes bibliographical references and index.   isbn 978-0-226-07689-8 (cloth : alk. paper) — isbn 978-0-226-07692-8 (pbk. : alk. paper) — isbn 978-0-226-07708-6 (e-book)  1. Sovereignty.  2. Protectorates.  3. Government accountability.  I. Title.   jc327.g55 2014   320.1'5—dc23 2013009157 a This paper meets the requirements of ansi/niso z39.48-1992 (Permanence of Paper).

for mum and dad

contents

Acknowledgments

ix

Introduction

1

1.

The Social Construction of Sovereign Responsibilities

10

2.

Sovereignty in Early Modern Europe

31

3.

The Rise of Popular Sovereignty

60

4.

Sovereignty and the Non-European World

100

5.

Sovereignty after the Second World War

132

6.

The Rise of the Responsibility to Protect

171



Conclusion

213

Notes

227

References

265

Index

285

vii

acknowledgments

T

he idea for this book was first suggested to me by Alex Bellamy at the University of Queensland in early 2006. Alex was an extraordinary supervisor and is now a generous colleague and friend at Griffith University. He has been tireless in his enthusiasm for the project, reading and rereading each part of the book many times over and graciously lending his expansive knowledge, gentle criticism, and wise counsel whenever I have needed it. Richard Devetak was the perfect second supervisor. I have frequently relied upon his profound understanding of the theoretical and historical material covered in the book and his ability to articulate what steps might be taken to make my arguments more persuasive. I am deeply grateful for the wisdom and generosity of both Alex and Richard. At various stages of the project, Frazer Egerton, Aidan Hehir, Jason Ralph, and Jennifer Welsh have read drafts of the entire manuscript. Many thanks go to them for thoughtful comments, criticisms, and insights that have enabled me to produce a stronger argument and a more polished work. Thanks also go to Shannon Brincat, Tim Dunne, Jess Gifkins, Seb Kaempf, Andrew Phillips, Richard Shapcott, Sarah Teitt, Ryan Walter, and Martin Weber, who each offered helpful comments and suggestions on various parts of the project during my time at the University of Queensland, and also to Sara Davies, Hunjoon Kim, Andrew O’Neil, Haig Patapan, Jason Sharman, Pat Weller, and Wes Widmaier, who have each engaged closely with the project during my time at Griffith. Jason Sharman in particular has devoted many hours to reading and commenting on key parts of the manuscript and helping me find the right publisher for the book. Special thanks go to Mark Chou, with whom I shared an office at the University of Queensland, for many enjoyable pizza lunches, shared discoveries about academic publishing, and arguments about punctuation over the last seven years. ix



acknowledgments

I wish also to acknowledge the invaluable support provided by the team at the University at Chicago Press who have guided this book to publication. I am grateful to David Pervin for supporting the project and for his sage advice about how to make my argument more persuasive and more accessible. I am also grateful to Christie Henry and Shenyun Wu for their commitment to the project and their work in readying it for publication. Thanks also go to the anonymous reviewers who engaged with the manuscript at length and whose constructive criticisms enabled me to produce a better book. Some of the arguments in this book have been published in earlier form elsewhere. Various chapters draw on material from “The Antecedents of ‘Sovereignty as Responsibility,’ ” European Journal of International Relations 17, no. 2 (2011), 233–55; “Darfur and the Responsibilities of Sovereignty,” International Journal of Human Rights 15, no. 3 (2011), 462–80; “Intervention in Libya: From Sovereign Consent to Regional Consent,” International Studies Perspectives 14 (forthcoming); and “The Myth of ‘Traditional’ Sovereignty,” International Studies Quarterly 57, no. 1 (2013), 79–90. I am grateful to the publishers for permission to use this material. My deep gratitude goes to Mum, Dad, Mark, Erin, Sarah, and Dave for their unconditional love, support, and prayers. I particularly want to thank Dad for yet again reading over every word of my work with his trusty red pen in hand, and also my little nieces, Milly, Mahla, and Indi, for what I took to be their willingness to do some proofreading of their own if only they had learned to read. Finally, I want to thank my delightful wife, Clare, for willingly moving away from family and friends to be with me in Brisbane, for tolerating my stresses and odd work habits, for listening to my rants about Hobbes and my musings on the “responsibility to protect,” and for encouraging and prayerfully supporting me throughout the last seven years. Brisbane November 2012

introduction

O

n March 17, 2011, the UN Security Council adopted Resolution 1973 authorizing the use of “all necessary measures” to protect civilians from attacks by the Libyan regime of Muammar Gadhafi. The resolution invoked the “responsibility to protect,” a principle that holds that sovereign states are responsible and accountable both to their own people and to the international society of states for the protection of their populations. Member states had unanimously endorsed this principle at the UN World Summit in 2005. The agreement negotiated at the summit declares, “Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity,” and it further establishes that the “international community,” through the United Nations, is prepared to take collective action to protect populations should national authorities fail to do so.1 In adopting Resolution 1973 authorizing intervention in Libya, international society was said to be enforcing the responsibilities of sovereignty. This book argues that the idea that sovereignty entails a “responsibility to protect” has deep historical roots. Present-day concepts of “sovereignty as responsibility” and the “responsibility to protect” are too often framed as radical departures from what is alleged to be the “traditional” meaning of sovereignty. The story that is repeatedly told is that sovereign states have always enjoyed unfettered rights to autonomous self-government and freedom from external interference and intervention. The notion that a state’s enjoyment of these rights should be conditional upon their fulfilling certain responsibilities is considered to be a profound revision of the rules of sovereignty, and in some important senses it is. However, far from being a new idea, the notion that sovereigns have responsibilities for the protection of their populations is one with a long and rich history. 



introduction

The purpose of this book is to examine the antecedents of the notion that sovereignty entails a “responsibility to protect.” I pose the questions, what is the relationship between sovereignty and responsibility and how has it developed over time? The answer I advance is that sovereign authority has been understood to involve varied and evolving responsibilities since it was first articulated in the sixteenth and seventeenth centuries. I argue that responsibilities have almost always been found at the heart of both the justification for sovereign authority and the construction of its meaning and content. Such a reading of history offers a correction to the conventional narrative of sovereignty in the field of international relations. In doing so, it serves to reframe present-day ethical debate about the rights and responsibilities of sovereign states, which too often proceeds from a flawed understanding of the past. And it also clarifies the real significance of recent developments in international consensus on the notion that sovereigns have a “responsibility to protect” their populations. In this introduction, I briefly outline the conventional story of sovereignty and offer some initial reasons for thinking it to be mistaken. I then note an expanding body of scholarship that has laid the conceptual foundations for rethinking sovereignty and subjecting it to historical inquiry. Finally, I sketch the argument that I will make and anticipate its key implications.

The Conventional Story of Sovereignty The conventional story of sovereignty told in the discipline of international relations tells us that sovereignty was established sometime around the seven­teenth century (at the Peace of Westphalia in 1648, according to many accounts), and for several centuries, its meaning did not change. During this time, sovereignty meant that states had a right to govern themselves however they chose, free from outside interference or intervention. It entailed the absence of responsibility or accountability. This is commonly referred to as the “traditional” meaning of sovereignty. In recent years, the tale goes, the indefeasible rights that sovereigns have “traditionally” enjoyed have for the first time been challenged by the demands of human rights and notions of sovereign responsibilities. This conventional story is examined in greater detail in chapter 1. For now, it suffices to observe that the story is pervasive. It is repeatedly told in international relations textbooks that uncritically accept the Westphalian myth and describe the recent collapse of the centuries-old principle that “what a state does within its own boundaries is its own business.”2 The story is similarly embraced by both advocates and critics of the “responsi-



introduction



bility to protect” principle. Advocates cast the notion that sovereigns have a responsibility to protect their populations as a recent and welcome alternative to the idea that “state sovereignty is a licence to kill,” which is said to have prevailed since the seventeenth century.3 Critics, on the other hand, lament that the “foundational” rights of sovereign peoples to autonomous self-government and freedom from external interference are being challenged by new and specious notions of sovereign accountability.4 Significantly, as chapter 1 explains, the conventional story is also promoted by leading representatives of a range of schools of international relations theory who treat the “traditional” right of states to autonomy and noninterference as the timeless, objective, and logically deducible essence of sovereignty. As we will see, even Stephen Krasner, who famously observes that this “Westphalian” model of sovereignty has been repeatedly breached and compromised since the seventeenth century, proceeds on the assumption that sovereignty has always been defined in these terms. The acceptance of the conventional story has a powerful impact on the study of international relations. Intentionally or otherwise, rights to autonomy and nonintervention are reified as fundamental to sovereignty. These rights are cast as perennial attributes of sovereignty that are only now for the first time being challenged by historically contingent responsibilities. The notion that sovereignty entails responsibilities is framed as a radical, new, and perhaps either dangerous or welcome challenge to sovereignty’s “traditional” meaning. However, even a cursory glance at history casts doubt on the veracity of the conventional story. It is clear, for example, that sovereigns have not always enjoyed the “traditional” right of nonintervention. This right was not fully articulated until the mid-eighteenth century (in Emmeric de Vattel’s Law of Nations), well after the initial establishment of sovereignty in Europe, and it continued to be challenged by an accepted right of states to wage war until as late as the first half of the twentieth century. Moreover, the notion that sovereignty entails responsibilities is patently not new. Early modern theorists of absolute sovereignty such as Jean Bodin and Thomas Hobbes wrote of sovereign duties to obey divine and natural laws, including the protection of the safety of the people. Theorists of popular sovereignty and American and French revolutionaries tied the legitimacy of sovereign representatives to a responsibility to secure the “rights of man.” Major international peace treaties beginning with the Peace of Westphalia have repeatedly bound sovereigns to protect minority rights and, more recently, human rights. States have accepted an obligation to refrain from slave trading since the nineteenth century. It is well known that the theory and practice of “humanitarian intervention” has its origins well before the end of the Cold



introduction

War. And numerous scholars have pointed to historical parallels between present-day notions of sovereign responsibilities and the late nineteenthand early twentieth-century concept of a “standard of civilization.”5 It would seem that the history of sovereignty is more complex than the conventional story allows. There is a clear need, therefore, to confront the influential edifice of “traditional” sovereignty and to investigate the historical development of the relationship between sovereignty and responsibility.

Rethinking Sovereignty Those who subscribe to the conventional story of sovereignty make the mistake of writing the present into the past. They ascribe to sovereignty a “traditional” meaning, which they suppose has prevailed for several hundred years because that is how sovereignty has been understood in recent decades. To tell a more accurate story of sovereignty and to trace the development of its relationship with responsibility requires a conceptual approach that is sensitive to history. Despite the widespread assumption that sovereignty has a natural and timeless meaning, there is fortunately a substantial body of literature that does treat sovereignty as something that demands conceptual and historical inquiry. Sovereignty has long been subjected to rigorous theoretical and historical examination by political theorists, international legal theorists, English School scholars, and, more recently, critical theorists and constructivists. The latter two, in particular, have deliberately sought to problematize sovereignty and to highlight its contingent and contested nature.6 And constructivists have traced significant shifts in the meaning of sovereignty since it first emerged in early modern Europe.7 This literature has not yet adequately examined sovereignty with respect to the notion of responsibility. Yet it has laid firm foundations upon which a history of the development of the relationship between sovereignty and responsibility can be built.8 I examine these conceptual foundations more fully and outline my own social constructivist approach to examining and understanding this history in chapter 1. I suggest in this book that a history of the relationship between sovereignty and responsibility cannot focus solely on the construction of sovereignty in the international realm. As Martin Wight’s classic study of international legitimacy demonstrates, we must understand changes in principles of legitimacy within states if we wish to comprehend shifts in the principles that guide relations between states.9 We cannot understand the historical development of the external dimension of sovereignty with-



introduction



out giving due consideration to the history of its internal aspect. Sovereigns have historically been understood to be responsible and accountable at different times and in various ways not only externally, to the society of states, but also internally, to “the people,” and also to God, for the fulfillment of their responsibilities. Failure to fulfill responsibilities owed to international society has in certain circumstances led to international condemnation and even legitimized intervention. Failure to carry out obligations to “the people” or to God, on the other hand, has at various times been understood to lead to rightful popular resistance or the necessity of answering to God on the day of judgment. These different aspects of sovereign responsibility have historically tended to feed into each other. Of particular importance for the present study, evolutions in domestic conceptions of sovereignty have time and time again gradually fed into international society’s construction of sovereignty. The shift from dynastic to popular sovereignty that was initiated in the American and French Revolutions, for example, had a profound impact on the subsequent construction of the justification, meaning, and responsibilities of sovereignty by the society of states. The historical development of the internal dimension of sovereignty therefore constitutes an important part of the rich history of sovereignty that needs to be traced in conjunction with the external aspect in order to fully understand the development of the relationship between sovereignty and responsibility.

A New Story of Sovereignty The central claim of this book is that sovereign authority has been understood to involve varied and evolving responsibilities since it was first articulated in the sixteenth and seventeenth centuries. In defense of this claim, I offer a history of the relationship between sovereignty and responsibility that challenges the conventional account. The story that I put forward is not simply a catalog of examples of the articulation, acceptance, and enforcement of sovereign responsibilities over the past few hundred years. Rather, it is an inquiry into how these responsibilities emerged and evolved and a study of the tensions between these changing responsibilities and the equally socially and historically contingent rights of sovereignty. The scope of responsibilities for which sovereigns have been said to be accountable is quite broad. Today they include responsibilities for environmental protection and global health, prevention of the spread of weapons of mass destruction and international terrorism, adherence to the laws of war, and a range of other international norms and principles.10 There is a story to be told about the historical development of each of these sovereign



introduction

responsibilities. I focus primarily on the development of sovereign responsibilities for the protection of populations. I do not seek to pass normative judgment on the historical development of the relationship between sovereignty and responsibility. I claim neither that the various historical constructions of sovereign responsibilities that I trace ought to be celebrated nor that they should be lamented. I simply seek to explore how the relationship between sovereignty and responsibility has developed over time. However, I do suggest in the book’s conclusion that my new reading of the historical development of the relationship between sovereignty and responsibility has significant implications for the way we ought to frame present-day normative debates about how the rules of sovereignty ought to be constructed, since these debates are too often grounded in a flawed understanding of history. The broad contours of the historical story that I tell can be summarized thus: From its earliest articulations by political theorists in early modern Europe such as Bodin and Hobbes, sovereignty was conceived to entail responsibilities.11 As I explain in chapter 2, the dominant discourse of “absolute sovereignty” was characterized not only by forceful defenses of centralized and irresistible rule but also by a sincere concern with opposing the tyrannical use of authority. Central to theories of absolute sovereignty, therefore, was the interdependence of authority and responsibility. The authority of sovereigns was conceived to be limited by various divine, moral, and juridical responsibilities and ideas of mutual obligations between ruler and subject. While sovereigns were not understood to be answerable to the people, they were certainly conceived to be responsible for the people and answerable to God. Moreover, rulers were also understood to be accountable to neighboring princes for the performance of their sovereign responsibilities. Indeed, rather than a right of nonintervention, it was the right to wage war to uphold natural law that was first conceived to be the external corollary of the internal supremacy of the sovereign. Hugo Grotius was one of numerous theorists who justified resorting war to hold to account sovereign princes who violated this law by acting tyrannically and oppressing their own people. It was also in this early modern period that an international society of states began to tentatively emerge. At important moments such as the Peace of Westphalia, mutual recognition of claims to sovereign authority paved the way for the construction of not only rights but enforceable responsibilities of legitimate statehood, including responsibilities for toleration of religious minorities. It was not until the mid-eighteenth century that Vattel clearly articulated for the first time the sovereign right of nonintervention, and yet even he balanced this right with the claim that



introduction



those sovereign states that were tyrannical and oppressive should be denied its protection. The notion that the sovereign is responsible for the protection of the people can also be clearly found in ideas about “popular sovereignty” expressed by theorists such as John Locke and Jean-Jacques Rousseau and by the American and French revolutionaries. As is detailed in chapter 3, the concept of popular sovereignty held that rulers were responsible not only for but to the people for the protection of their safety and security. However, the concept, as it emerged, entailed two potentially conflicting ideas: the right of individuals to liberty and equality and the right of peoples or nations to be self-governing and free from outside interference. While the protection of individual rights was central to both the American and French understanding of popular sovereignty, in the French context in particular the responsibility for the protection of these rights was established in tension with the rights and objectives of the nation-state. After the French Revolution, it was the right of nations to govern themselves, not the rights of the individuals within these nations, that came to dominate the understanding of the sovereignty of “the people” in Europe. The principle of national self-determination was established as a legitimacy principle by the society of states at the end of the First World War, and it was complemented by tentative rights of nations to nonintervention and noninterference in matters of domestic jurisdiction. However, these emergent rights were held in tension, at least to some degree, with an unsettled doctrine of “humanitarian intervention” that had developed through the nineteenth century and also a weak minority-rights regime that accorded binding responsibilities to at least some European states. Thus the tensions inherent in the idea of popular sovereignty were transferred to the international level. While notions of sovereign responsibilities were to a significant extent being suppressed by emergent sovereign rights within Europe in these years, the idea that sovereignty entails responsibilities could still be clearly found in the relations between European international society and the nonEuropean world. As I demonstrate in chapter 4, these responsibilities were expressed in justifications for early examples of “humanitarian intervention,” in the “standard of civilization,” in the abolition of the slave trade, and in justifications for colonialism. I argue that these nineteenth- and early twentieth-century expressions of responsibility can be rightly understood as germs of present-day notions of “sovereignty as responsibility” and the “responsibility to protect.” Yet I also observe that the enduring memory of humiliation and oppression suffered by non-Europeans at the hands of Europeans in this period has sustained their demands for unconditional



introduction

sovereign rights to self-government and nonintervention and their opposition to notions of sovereign accountability since the Second World War. In the book’s conclusion, I explore how uncritical acceptance of the conventional story of sovereignty has meant that advocates of the “responsibility to protect” have failed to grapple with the problematic legacy of European imperialism that was so plainly justified according to ideas of sovereign responsibilities. The supposed “traditional” rights of sovereign peoples to self-government and freedom from external interference were only for the first time firmly and unambiguously established in international law in the UN Charter in 1945 and were subsequently universalized over the next two decades through the process of decolonization. As I explain in chapter 5, from the moment they were established in the UN Charter, these sovereign rights were held in some tension with an emergent international human-rights regime. However, through the course of the Cold War, the notion of international enforcement of responsibilities for the defense and promotion of human rights for the most part made little headway against a firmly non­ interventionist conception of sovereignty. Nevertheless, the individual-rights dimension of popular sovereignty would not be forever held at bay. The sovereignty of “the people” was justified on individual-rights grounds by eighteenth-century revolutionaries and twentieth-century anticolonialists alike. The development of the idea that sovereignty entails a “responsibility to protect” in the years since the end of the Cold War represents an attempt to enforce the protection of these individual rights; it is an attempt to resolve the inherent contradictions in the idea of sovereignty. This most recent conceptualization of sovereign responsibilities, whose development I examine in chapter 6, suggests that, while peoples have a right to govern themselves free from outside interference, this should be conditional on their protection of human rights. When a sovereign state proves unwilling or unable to protect its own population, it yields its sovereign right of nonintervention, and the responsibility to protect passes to the society of states. This indeed represents a new conception of the rules of sovereignty, yet it can also be understood as international society imposing upon sovereign peoples only that which anticolonialists recently declared for themselves and which American and French revolutionaries declared for themselves more than two centuries ago; or international society universalizing only those principles of responsibility it had accepted in relation to the non-European world over one century ago; or indeed international society demanding adherence only to those principles of natural law that



introduction



were central to the legitimation of sovereignty when it first emerged in early modern Europe. In short, the notion that sovereignty entails some particular set of responsibilities is not new. Indeed, sovereign rights and sovereign responsibilities have historically been interdependent. The history of sovereignty is in many ways a history of domestic and international demands that the practices of sovereigns be reconciled to the justifications for sovereignty and that the rights of sovereigns be limited by the responsibilities that underpin the legitimation of their authority. The present-day idea that sovereign states are responsible to their populations and to international society for the protection of individual rights does not break with a centuries-old tradition of unaltered and untrammeled sovereign rights. The boundaries of legitimate sovereign action have always been contested, and the idea that states have responsibilities—including a responsibility to protect the safety of individuals—has been an enduring feature of the discussion of legitimate sovereignty since it first emerged in the sixteenth and seventeenth centuries. This book, then, has three key implications, each of which I discuss in the conclusion. First, the reading of history that I offer provides a correction to the conventional story of sovereignty in the discipline of international relations. The idea of responsibility is put in its proper place as an enduring feature of the historical construction of sovereignty that is no more contingent or abstract than are the supposed “traditional” rights of sovereignty. Second, this disciplinary correction reframes the present-day ethical debate about the rights and responsibilities of sovereignty by confronting the re­ ification of the supposed “traditional” meaning of sovereignty and refuting the claim that the idea that sovereignty entails responsibilities is a recent and perhaps either a dangerous or welcome challenge to this centuries-old conception. It requires that critics of the “responsibility to protect” refrain from casting socially and historically contingent sovereign rights as timeless and natural—and therefore beyond question—and it demands that advocates cease blaming a mythical definition of sovereignty for past failures to confront mass atrocities and that they take more adequate account of the problematic legacy of past constructions of sovereign responsibilities. Third, the provision of a more accurate history clarifies the real significance of recent developments in international consensus on the notion that sovereigns have a “responsibility to protect” their populations. Before developing my new story of sovereignty, however, I must lay some conceptual foundations. That is the task of chapter 1.

chapter one

The Social Construction of Sovereign Responsibilities

S

overeignty is a key organizing principle of international society, yet it is notoriously difficult to describe. More than one hundred years ago, Lassa Oppenheim noted, “There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact,” he continued, “that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.”1 More recently, Michael Fowler and Julie Bunck have observed, “The concept of sovereignty has been used not only in different senses by different people, or in different senses at different times, but in different senses by the same person in rapid succession.”2 As this chapter and, more broadly, this book make clear, it is not a categorical or timeless definition of sovereignty that we seek. Nevertheless, there is a need for adequate tools for talking about sovereignty—for discussing how it is constituted and practiced and for articulating change in its meaning and content. This chapter lays a conceptual foundation for the examination of the historical development of the relationship between sovereignty and responsibility that follows. I argue that sovereignty is not an objective and unchanging principle but something that demands conceptual and historical inquiry, and I outline a framework for examining the social and historical construction of sovereignty that allows for consideration of the responsibilities assigned to sovereignty in different historical periods. The chapter proceeds in three sections. The first examines how sovereignty has been understood in international relations theory. I demonstrate the pervasiveness of the conventional story of sovereignty, as described in the introduction, before considering the work of theorists who have challenged the assumptions of this story and subjected sovereignty to conceptual and historical 10



the social construction of sovereign responsibilities

11

scrutiny. I defend a constructivist understanding of sovereignty, which emphasizes its historically contingent and contested nature, against Stephen Krasner’s argument about sovereignty, which acknowledges historical deviations from the conventional story but refuses to allow that the meaning of sovereignty may have changed over time. In the second section, I outline a framework for conceptualizing the social and historical construction of sovereignty that enables us to understand the development of its relationship with notions of responsibility. I suggest that the constructed meaning of sovereignty at a given time can be fruitfully understood through examination of its historically contingent “rules.” These rules include the requirements that must be satisfied for a claim to sovereign authority to be recognized and the rights and responsibilities that flow from recognition. I consider the nature of these rules and their relationship with each other, emphasizing that they are each constructed rather than given and that they have varied and evolved over time. In the final section, I briefly outline how I will interpret the social construction of sovereignty in the remainder of the book.

Sovereignty in International Relations Theory The conventional story of sovereignty commonly told by scholars of international relations ascribes to sovereignty a natural and timeless definition that was supposedly established sometime in the seventeenth century and that remained unchanged for several centuries. In its “traditional” or “Westphalian” guise, sovereignty meant that states had an indefeasible right to autonomous self-government, free from outside interference and intervention. Sovereigns were responsible and accountable to none but themselves. In recent years, so the tale goes, this meaning of sovereignty has come under challenge, only for the first time, by the emergence of human-rights norms and notions of sovereign responsibilities. The conventional story of sovereignty is told and retold in introductory international relations texts. One such text declares, “Sovereignty . . . means that the government has the right, at least in principle, to do whatever it wants in its own territory. . . . Sovereignty also means that states are not supposed to interfere in the internal affairs of other states . . . they are not supposed to meddle in the internal politics and decision processes of other states.”3 Another speaks of “the traditional legal rule of state sovereignty and its corollary—the non-intervention norm prohibiting external interference in the internal affairs of states,” which has recently been “revised” with the emergence of international human-rights law.4 The result of this

12

chapter one

revision is said to have been “the collapse of the Westphalian principle that what a state does within its own boundaries is its own business.”5 A text on human rights in international relations similarly maintains, “Prior to 1945, the relation between an individual and a state controlling ‘its’ citizens was a matter for that state alone. The state was sovereign in an almost absolute sense, exercising supreme legal authority within its jurisdiction.” It goes on to explain that, because of the emergence of international human rights, by “about 2000 . . . reference to the idea of state sovereignty no longer provided an automatic and impenetrable shield against international action on issues once regarded as essentially domestic.”6 This same story of sovereignty is offered by both advocates and critics of the “responsibility to protect.” Advocates portray the notion that sovereignty entails a “responsibility to protect” as a new and welcome alternative to the “traditional” view that sovereignty “meant immunity from outside scrutiny or sanction.”7 Since the seventeenth century, they suggest, “the view had prevailed that state sovereignty is a licence to kill: that it is no one’s business but their own if states murder or forcibly displace large numbers of their own citizens, or allow atrocity crimes to be committed by one group against another on their soil.”8 It is to be celebrated then, they insist, that “sovereignty is no longer sacrosanct”9 and that the untrammeled rights that sovereigns have “traditionally” enjoyed are finally being challenged.10 Critics, on the other hand, lament that the supposedly “foundational” and “traditional” rights of sovereign peoples to autonomously govern themselves and to pursue their own conception of the good life, free from outside interference, are now being threatened by new and specious notions of sovereign accountability.11 They warn of the dangers of replacing “the traditional view that sovereignty implies non-interference” with a redefined concept of “sovereignty as responsibility,” which “implies the right of interference if ‘the community of responsible states’ decides this to be in the interests of protection.” Moreover, they argue that such new ideas are incoherent, since “a power which is ‘accountable’ to another, external, body clearly lacks sovereign authority.”12 This conventional story of sovereignty is supported by leading representatives of a range of schools of international relations who assume that the supposed “traditional” rights of states, particularly the right of non­ intervention, represent the timeless essence of sovereignty. English School scholars, for example, have been sensitive to historical developments in the criteria for sovereign recognition, yet they have tended to treat sovereignty itself as a static institution entailing a right of nonintervention. R. J. Vincent, for example, contends that the rule of nonintervention “derives” from



the social construction of sovereign responsibilities

13

the principle of sovereignty and plainly declares: “if sovereignty, then nonintervention”; Robert Jackson asserts that the “normative logic” of sovereignty necessitates that nonintervention is one of its basic norms; and Barry Buzan labels nonintervention a “corollary” of sovereignty.13 Realist scholars have tended to devote little attention to the nature or history of sovereignty, instead treating it as an ahistorical and empirically measurable attribute of statehood.14 Those realists who have subjected sovereignty to conceptual inquiry have tended to assume that it necessarily entails nonintervention. Hans Morgenthau, for example, ties sovereignty to nonintervention by suggesting that nonintervention is a “logical precondition for the existence of a multiple state-system . . . [and it] makes sovereignty as a legal concept possible.”15 Stephen Krasner’s well-known realist argument about sovereignty, an argument that I will consider in more detail shortly, is grounded in a static definition of what he terms “Westphalian sovereignty,” the “fundamental rule” of which is that states should “refrain from intervening in the internal affairs of other states.”16 Krasner catalogs numerous “breaches” of this model of sovereignty, suggests that these breaches “have been an enduring characteristic of the international environment,”17 and labels this phenomenon “organized hypocrisy.” Yet he perpetuates the conventional story by proceeding from the assumption that, while often compromised, “Westphalian sovereignty” has always been defined in terms of a right to freedom from intervention.18 Finally, even some constructivist theorists, despite their emphasis on the contingent and contested nature of social norms, embrace the supposed “traditional” definition of sovereignty. Daniel Philpott, for example, grounds his formidable examination of the historical construction of sovereignty in the ahistorical assumption that sovereignty “implies immunity from external interference.”19 He then proceeds to repeat the conventional story, arguing that states have enjoyed a right of noninterference since Westphalia and suggesting that this right has only come under challenge with the emerging acceptance of humanitarian intervention in the aftermath of the Cold War.20 He offers the extraordinary claim that “in the history of sovereignty one can skip three hundred years without omitting noteworthy change.”21 In a critique of Krasner’s argument, Philpott takes the supposedly timeless Westphalian model for granted and merely insists that, rather than a case of organized hypocrisy, this traditional understanding of sovereignty is actually honored in the breaches that Krasner observes.22 The supposed “traditional” meaning of sovereignty, then, is widely embraced in the study of international relations. It is posited not only as the defi­ nition of sovereignty that is thought to have obtained for several centuries

14

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but even as the natural and logical essence of sovereignty. The problem is that this argument is simply not borne out by history. As briefly outlined in the introduction to this book and as will be examined in much greater detail in the chapters that follow, sovereigns have not always enjoyed the supposed “traditional” right of freedom from external intervention. Even after this right was eventually articulated in the mid-eighteenth century, it was limited by an evolving range of exceptions and challenged by an accepted right of sovereigns to wage war until the first half of the twentieth century. The influential edifice that is the “traditional” meaning of sovereignty is the product of a tendency of scholars to write the present into the past and to either misunderstand or simply ignore sovereignty’s rich history.

Subjecting Sovereignty to Conceptual and Historical Inquiry There has, nevertheless, developed a substantial body of theorizing that challenges the assumptions of the conventional story and subjects sovereignty to careful conceptual and historical inquiry. International legal scholars have long asserted that the meaning of sovereignty is not naturally given but historically contingent. Hans Kelsen, for example, claimed, “We can . . . derive from the concept of sovereignty nothing else than what we have purposely put into its definition.”23 He insisted that there were no rights intrinsic to sovereignty; all rights were historically contingent and could only be identified through analysis of positive international law.24 Martti Koskenniemi has more recently concurred: “The status of statehood can be associated with various sets of rights and duties. It carries no given, determinate, normative implications. . . . In other words, we cannot deduce the extent of a state’s freedom of action from the mere fact of its statehood.”25 Early English School theorists such as C. A. W. Manning built upon these international legal insights arguing that sovereignty simply meant the “constitutional insularity” or “constitutional independence” of the state.26 The rights and duties that this entailed, Manning insisted, were not given, but derived from the prevailing principles of international law and international morality developed by the society of states.27 Hedley Bull similarly argued that any rights that sovereign states possess are granted to them by international society: Whatever rights are due to states or nations or other actors in international relations, they are subject to and limited by the rights of the international community. The rights of sovereign states, and of sovereign



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peoples or nations, derive from the rules of the international community or society and are limited by them. . . . The idea of sovereign rights existing apart from the rules laid down by international society itself and enjoyed without qualification has to be rejected in principle.28

Since the early 1980s, critical theorists and, more recently, constructivists have developed such insights further, problematizing the concept of sovereignty and highlighting its contingent and contested nature.29 Instead of a natural and unchanging concept, they suggest, “sovereignty is a practical category whose empirical contents are not fixed but evolve in a way reflecting the active practical consensus amongst coreflective statesmen.”30 Constructivists in particular have demonstrated that sovereignty is not a timeless and static organizing principle by tracing significant shifts in its meaning from the early modern period to the present.31 Given the historical variation in the meaning of sovereignty, a categorical definition of the concept is of little use. Indeed, R. B. J. Walker suggests that “the very attempt to treat sovereignty as a matter of definition and legal principle encourages a certain amnesia about its historical and culturally specific character.”32 Likewise, Jens Bartelson warns us to hesitate before defining sovereignty because, as Nietzsche claims, “only that which has no history can be defined.”33 Instead, constructivists view sovereignty as “a variable, practically constituted institution, its precise content and political implications varying with time and context.”34 Put simply, constructivists argue that sovereignty is a social construct. Christian Reus-Smit describes it as “a social norm, subject to the same constitutive processes as all other norms, rules and principles.”35 Claims to sovereign status are forceful only because they represent shared understandings and expectations that have been produced and reproduced through intersubjective communication and practice.36 There is no essential, unchanging meaning of sovereignty. There is only that which is socially and historically constructed and reconstructed. “It is neither natural, nor ever fully ‘completed.’ ”37 Certainly some of the rights of sovereigns are now so taken for granted that, as Alexander Wendt suggests, “it is easy to overlook the extent to which they are both presupposed by and an ongoing artifact of practice.”38 However, constructivists insist, the meaning and implications of sovereignty are continually negotiated rather than fixed. In developing his own influential argument in opposition to the claims of constructivists, Krasner has also treated sovereignty as something that demands conceptual and historical inquiry. As noted earlier, Krasner posits a static definition of what he terms “Westphalian sovereignty,” which he

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suggests is based on “territoriality and the exclusion of external actors from domestic authority structures.”39 Its “fundamental rule” is said to be that states should not intervene in each other’s affairs.40 He then demonstrates that this model has been repeatedly “breached” and “compromised” since the seventeenth century and labels this phenomenon “organized hypocrisy.” For Krasner, this hypocrisy reveals the limits of constructivist theorizing: “Norms, though not irrelevant, do not have the weight that constructivism has attributed to them.”41 The frequent violation of the Westphalian model, he suggests, demonstrates that “rules, when they exist in the international system, are instrumental, not deeply embedded.”42 However, Krasner provides no reason why a sociological approach needs to begin with his particular model of sovereignty. Moreover, he acknowledges that there has historically been no such thing as a Westphalian sovereign state in the sense in which he defines it. The Westphalian model, he observes, “has never been an accurate description of many of the entities that have been regarded as states.”43 Indeed, he notes that a principle of absolute autonomy cannot even be found in the Peace of Westphalia itself.44 It should not be surprising, then, that Krasner finds his model of sovereignty to have been so regularly breached. As Hidemi Suganami observes, if there has never been any such thing as “Westphalian sovereignty,” it makes little sense to label violations of this model as “hypocrisy.”45 In short, as constructivists suggest, the challenge for the student of sovereignty is not to determine a timeless definition of the meaning and rules of sovereignty but to explore the ways in which sovereignty has been socially constructed and reconstructed over time.46 Indeed, Krasner provides abundant empirical evidence for such an exploration, though he refuses to admit that his evidence points to anything other than hypocritical breaches of a static model that has never really existed. His study is valuable in that it demonstrates that sovereign boundaries have never been as impermeable as the conventional story of sovereignty often assumes, but the evidence that he offers, I would argue, supports not a story of reoccurring breach and compromise but an alternative story of variation and evolution in the rules of sovereignty. Many of Krasner’s examples of supposed “hypocrisy” can be better understood as indications of how the rules of sovereignty have been historically constructed. For example, rather than hypocritical violations of sovereignty, the international enforcement of antislavery norms, minority rights, or human rights that he catalogs can be understood in terms of intersubjectively constructed developments in the meaning of sovereignty. To be sure, states have often acted hypocritically, and the rules of sovereignty have often been breached and compromised. However, these have been



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breaches not of a static Westphalian model but of socially and historically constructed rules that have varied and evolved over time (and they tend not to have been those examples that Krasner posits as breaches). Indeed, identification of socially recognized breaches can reveal the particular constructed rules of sovereignty that have prevailed at a given time. As noted above, constructivist scholars have already done significant work tracing historical shifts in the social construction of sovereignty. However, they have not yet adequately examined the concept with respect to the responsibilities that it has historically entailed. Constructivists have tended to emphasize the construction and legitimation of claims to sovereign authority and the rights entailed in these claims. For the most part, they have not considered the historically intimate relationship between these authority claims and notions of obligation and accountability.47 The neglect of this dimension of sovereignty, I suggest, has prevented them from telling a more complete story of sovereignty’s rich history. In the next section, I lay out a framework for considering the social and historical construction of sovereignty that enables us to understand its relationship with notions of responsibility.

The Rules of Sovereignty In both domestic and international societies, sovereignty has historically been constituted by the successful legitimation of authority claims, and these claims to authority have entailed not only rights but responsibilities. In the international realm, the legitimation of sovereign authority has involved the satisfaction of certain requirements for recognition by other sovereigns. The requirements for recognition that prevail at a given time and the rights and responsibilities that flow from recognition can be labeled the “rules” of sovereignty. The prevailing requirements for sovereign recognition parallel with what Reus-Smit terms the principles of “legitimate statehood,” while the rights and responsibilities that follow correspond to what he terms the principles of “rightful state action.”48 Parallels can also be observed with Philpott’s conception of the “constitution of international society,” which he describes as a mutually agreed-upon set of norms about who the legitimate polities are and what their basic prerogatives are.49 Each of the rules of sovereignty is constructed rather than given, and they have varied and evolved over time. This section outlines the nature of these rules and their relationship to each other. The focus of this section is, in large part, on the rules of sovereignty as they are constructed in the international realm. However, as suggested in the

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book’s introduction, the domestic construction of the rules of sovereignty is also a crucially important aspect of the historical story of the relationship between sovereignty and responsibility. Scholars have long differentiated between the domestic and international dimensions of sovereignty. This distinction is certainly helpful. Sovereignty is constructed both within and between political communities. However, as subsequent chapters reveal, dominant modes of discourse about legitimate sovereign authority domestically and internationally have historically tended to feed into each other.50 While the external sovereignty of states is contingent upon external recognition, the constructed criteria for recognition are commonly derived from the justifications for sovereign authority prevailing within states. Put another way, new ideas about sovereign authority have commonly developed in domestic settings before being instituted in the international arena. The notion that peoples or nations should be self-governing, for example, was first advanced through popular revolution within states before later being established in international politics in the form of the principle of national self-determination at the end of the First World War. Such shifts in the meaning of sovereignty at the domestic level are central to the historical story of the construction of sovereignty by the society of states. Consequently, in what follows, I emphasize the need to distinguish between and understand the development of not only external responsibilities but also internal responsibilities that are borne by sovereigns. I then turn to consider the rights of sovereigns and the requirements for sovereign recognition.

The Responsibilities of Sovereignty “Responsibility” is a slippery term. It can be used in a variety of ways. H. L. A. Hart illustrates this well in an oft-cited passage: As captain of the ship, X was responsible for the safety of his passengers and crew. But on his last voyage he got drunk every night and was responsible for the loss of the ship with all aboard. It was rumored that he was insane, but the doctors considered that he was responsible for his actions. Throughout the voyage he behaved quite irresponsibly, and various incidents in his career showed that he was not a responsible person. He always maintained that the exceptional winter storms were responsible for the loss of the ship, but in the legal proceedings brought against him he was found criminally responsible for his negligent conduct, and in separate civil proceedings he was held legally responsible for the loss



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of life and property. He is still alive and he is morally responsible for the deaths of many women and children.51

There are two key senses in which the term “responsibility” is used when speaking of the responsibilities of sovereignty. The first is responsibility as duty or obligation. This speaks to what the sovereign is responsible for, what duties or obligations the sovereign is bound to perform or observe.52 Just as the captain of the ship bore a responsibility for the protection of his passengers and crew, so too can sovereigns conceivably bear responsibility for the performance of certain duties, including the protection of populations.53 From the early modern period to the present, sovereignty has been understood to entail varied and evolving responsibilities, including responsibilities for the protection of the safety and security of subjects, citizens, religious and national minorities, foreign nationals, and entire populations. Chapters 2 through 6 examine the historical development of such responsibilities, including important shifts in understandings of precisely what or who it is that the sovereign is responsible for.54 The second sense in which the term is used is responsibility as accountability or answerability. This speaks to the separate issue of whom the sovereign is responsible to. The term “responsibility” comes from the Latin respondeo, meaning “I answer.”55 Yet missing from standard accounts of responsibility is a discussion of the question “responsible to whom?” This is perhaps to be expected given that these accounts are typically concerned with ideas about agential responsibility within domestic societies in which legal responsibility is assumed to be directed toward the state and moral responsibility is assumed to be directed toward one’s own conscience or to God. Hart, for example, seems to adopt these assumptions in his story of the captain. However, we cannot ignore this question when talking about the responsibilities of sovereigns. The agent to whom sovereigns are responsible needs to be problematized; we need to know to whom the sovereign is accountable and answerable. To simply say that a sovereign state bears a particular responsibility or duty might make clear what the sovereign is responsible for. However, it tells us nothing about who that responsibility is directed toward and, therefore, to whom the sovereign is bound to give account, and who can legitimately provide condemnation or sanction when the responsibility is not met. It is important to note that those for whom the sovereign is responsible are not necessarily those to whom the sovereign is responsible. Sovereigns may conceivably be understood to bear a duty to protect the safety of “the people” but to be accountable not to the

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people themselves but to God or to the society of states for the performance of this duty. This question of accountability or answerability, then, goes to the heart of what it means for sovereignty to entail responsibility. Historically, sovereign rulers and sovereign states have been held to be variously responsible either to God, the people, or international society for the performance of their duties, and it has been perceived in turn that God, the people, or international society can legitimately hold sovereigns to account: failure to carry out responsibilities owed to God can give rise to divine judgment; failure to discharge duties owed to the people can lead to a right of internal resistance or revolution; and failure to perform obligations owed to international society can justify external condemnation, sanction, or even coercive intervention. A few examples that are detailed more substantially in later chapters may helpfully illustrate this point: Louis XIV believed himself to be answerable to God, but only to God, since he was not prepared to countenance a right of internal resistance or external intervention if he failed to carry out God’s divine commands; Jean Bodin similarly refused to permit a right of resistance, but he appeared to accept that sovereign princes were accountable not only to God but to each other in permitting forcible intervention to bring an end to tyranny; John Stuart Mill, on the other hand, implied that civilized sovereign states were answerable to “the people” but not to each other when he permitted peoples to throw off their oppressors, while refusing to allow outside intervention to help these peoples achieve liberty. Further, these notions of internal and external accountability have themselves evolved over time. For example, whereas sixteenth-century French Huguenot theorists placed the internal right to resist tyranny in the hands of the Estates General and other magistrates, Mill followed Locke and Rousseau in placing it in the hands of the collective “people.” And whereas Bodin and other early modern theorists placed the external right to forcibly suppress tyranny in the hands of neighboring sovereigns, in the nineteenth century this right was widely understood to rest only in the hands of the Concert of European Great Powers, and such a right is today understood to require the authorization of the UN Security Council. Moreover, whereas the external responsibilities of sovereigns were once articulated by theorists as natural duties in an international state of nature, they have been increasingly positivized and institutionalized by international society over time. While sovereignty may have long been understood to entail responsibilities for the safety of populations, then, the direction and implications of these responsibilities have evolved in profound ways. Chapters 2 through 6 track such crucial developments.



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In short, an investigation into the responsibilities of sovereignty constructed at a given time must ask not only what kinds of responsibilities or duties sovereigns are obliged to perform but also whom sovereigns are responsible or answerable to. Answers to these questions have been socially and historically constructed in a variety of ways by both domestic and international societies, and the evolution of these answers is central to the historical development of the relationship between sovereignty and responsibility.

The Rights of Sovereignty A key argument of this book is that, despite widespread assumptions to the contrary, the rights of sovereignty are no less historically contingent and contested than are sovereign responsibilities. There are no inherent, natural rights of sovereignty. Rather, as international legal scholars and English School theorists have long argued, these rights are dependent upon the prevailing principles of international law and international morality.56 Sovereign rights are socially and historically constructed. It follows that there is nothing that is inherently a “domestic affair” that sovereign states have a right to decide for themselves. There are no areas of authority that naturally fall under the “domestic jurisdiction” of states and with respect to which sovereigns enjoy a right of noninterference. As the Permanent Court of International Justice found in 1923, “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations.”57 Indeed, sovereignty need not necessarily entail a right to freedom from external interference and intervention at all. Nonintervention is not a natural or objective corollary of sovereignty. From the mere fact of a state’s “constitutional independence,” to use Manning’s and Alan James’s description of sovereignty in a society of states, there does not necessarily follow a rule that this independence should be respected by other sovereign states in all or indeed in any circumstances.58 It may be the case, as some have argued, that it is instrumentally rational for states to agree to respect a right of nonintervention in order to preserve the existing international system (although this claim itself is a matter of legitimate debate).59 Yet sovereignty need not be constructed in this way. Suganami offers a compelling assessment: “The argument to the effect that the principle of non-intervention is implicit in the concept of sovereignty only works by first unconsciously/unreflectively feeding the principle into the concept and then deducing it from the concept on the mistaken belief that the principle was there a priori.”60

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That being said, while the right of nonintervention may not be essential to the concept, sovereignty has historically been commonly understood to entail such a right at least since the mid-eighteenth century. However, as subsequent chapters demonstrate, this right was consolidated as a legal rule only gradually, and it has commonly been conceived to be limited in varied and evolving ways. The historically contingent limits and exceptions to the right of nonintervention themselves reveal much about the changing rules of sovereignty. As suggested earlier, many of Krasner’s examples of breaches of supposed timeless and illimitable sovereign rights of autonomy and noninterference, to the extent that these actions were perceived to be legitimate by the society of states, can actually be better understood as indications of how the responsibilities, rights, and requirements of sovereignty have been constructed and reconstructed over time. This claim parallels neatly with Cynthia Weber’s argument about the mutual dependence of sovereignty and intervention.61 Weber suggests that we can learn what sovereignty “means” by considering the justifications offered for intervention. Intervention is one of those practices that establishes and reveals the rules of sovereignty at a given time. For example, Weber reads the justifications and practices of interventions by the European Concert in Naples and Spain in the early nineteenth century and by the United States in Grenada and Panama in the 1980s not as breaches of a supposed natural and indefeasible right of nonintervention but rather as examples of the ongoing negotiation of the socially constructed rules of sovereignty. Interestingly, Helle Malmvig observes that the converse of Weber’s argument is also true: sometimes nonintervention in the affairs of sovereign states in itself has required justification.62 Evidence for this can be found in the excuses and, subsequently, apologies offered for international society’s failure to intervene to protect victims of the Rwandan genocide in 1994. This case reveals tacit acceptance that intervention was considered to be not only the legitimate but the necessary response to the failure of the Rwandan state to fulfill its historically contingent sovereign responsibility to prevent genocide.63 It can be observed, then, that the responsibilities and rights of sovereignty are intimately connected. If sovereignty is understood to entail an unconditional right of noninterference, as many states and theorists claimed during the Cold War for example, then sovereignty cannot be said to entail externally enforceable responsibilities. More commonly, however, states and theorists have understood that sovereignty does entail some range of externally enforceable responsibilities, and these responsibilities have been understood to constitute limits on any right to freedom from external in-



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terference that sovereigns might enjoy. The historical development of the rules of sovereignty has tended to be marked by tension and contestation between the need to secure the rights of individuals and the need to respect the autonomy and self-government of nation-states, between the necessity of international action to protect populations from atrocities and the imperative to prevent abusive interventionism, and between the desire to “improve,” “civilize,” or push toward democracy certain “backward,” “barbarian,” or undemocratic communities and the perils of imperialism, subjugation, and hypocrisy. These tensions can be observed in the evolution of the relationship between sovereign responsibilities and sovereign rights. It is important also to note that what is implied by the idea that the sovereign right of noninterference might be limited by certain responsibilities has itself varied over time. In the early twenty-first century, for example, the refusal of a right of noninterference in response to a failure to discharge sovereign responsibilities for the protection of populations has typically been conceived to involve international condemnation, or sanction, or in extreme situations a temporary military action against a state that at no stage loses its sovereignty. The question of whether military action to protect populations can justifiably involve regime change is, in the wake of NATO’s intervention in Libya in 2011, a matter of fierce debate. In other historical periods, however, the denial of a right to noninterference in response to the failure of a ruler or a political community to discharge its responsibilities has been understood to give rise to justifiable military occupation, conquest, or colonization and the extinguishment or transfer of sovereign recognition. Such shifts in the implications of the right of noninterference and its exceptions are examined in chapters 2 through 6. In the book’s conclusion I delineate more fully the key distinctions between various understandings of legitimate interference and intervention that the book traces, and I consider the implications of these distinctions for present-day ethical debate about the “responsibility to protect.” The rights of sovereignty, then, are historically contingent. As noted earlier, this claim should not be read as a denial that there can be, and historically have been, illegitimate breaches of the prevailing rights of sovereignty. Krasner is right to point out that sovereign rights have often been compromised by powerful states. However, not all examples of intervention in the affairs of sovereigns represent instances of breaches of the rules. Indeed, subsequent chapters detail numerous instances in which intervention has been undertaken for the purpose of enforcing the prevailing rules of sovereignty. The rights of sovereignty have been socially and historically constructed and have varied and evolved over time. As I observe later in

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this chapter, these rights can be identified through analysis of the politics of legitimation (and indeed sometimes they can be detected through the recognition of their breach). And as subsequent chapters demonstrate, sovereignty has rarely been understood to entail an unlimited right to freedom from external interference.

The Requirements for Sovereign Recognition Sovereignty is best understood not as an attribute of an agent so much as something that is attributed to an agent.64 It is produced not by the demonstration of effective control or capacity to rule but by the legitimation and acceptance of a claim to authority. As Wouter Werner and Jaap de Wilde rightly observe, “Sovereignty . . . is a specific form of legitimization whose reality consists of its being accepted by relevant audiences.”65 In the international sphere, the legitimation of sovereignty involves external recognition. Who is it that recognizes? Richard Ashley tells us that it is a community of “coreflective statesmen.”66 Janice Thomson suggests it is “the world polity or other state rulers.”67 And Jackson similarly reports that recognition is “rationed and regulated by those who currently enjoy it.”68 Manning’s meta­ phor of a club is helpful.69 The club of states continually negotiate among themselves who will join the club, who will continue to be in the club, and who will no longer be a member of the club. Sovereignty is attributed to states through recognition by this club or “international society” of states. Of course this claim invokes a long-standing debate in the field of international law about the role of recognition in the international system. Whereas the “constitutive” view holds that sovereignty is constituted by the recognition extended by other states, the “declarative” view maintains that the extension of sovereign recognition to new states is nothing more than a declaration of a prior existing fact of effective statehood.70 The latter view, however, falsely assumes that the only requirement for the enjoyment of sovereignty is the demonstration of effective statehood. As James Crawford suggests, the equation of “fact” with “law” in the declarative view “obscures the possibility that the creation of States might be regulated by rules predicated on other fundamental principles [other than effectiveness]—a possibility that . . . now exists as a matter of international law.”71 Indeed, as subsequent chapters explain, the regulation of the “rules” of recognition has long been a practice of the society of states. It is generally accepted by students of international relations that sovereignty is constituted through recognition. Yet the actual historical prac-



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tice of recognition by international society is often misunderstood. Andrew Hurrell summarizes the story commonly told thus: They go ritualistically through distinctions between internal and external sovereignty; they list the definitions of a state as, for example, given in the 1933 Montevideo Convention (a permanent population, a defined territory, a government and a capacity to enter into relations with other states); and they stress the importance of the efficiency of governments and the effective control of territory in determining questions of recognition and membership of international society.72

In parallel with the conventional story of sovereignty outlined earlier, it has become common in recent years to suggest that these age-old criteria for recognition have recently been supplemented by new demands for human-rights protection. The members of the International Commission on Intervention and State Sovereignty, for example, suggest, “In the classic Westphalian system of international relations, the defining characteristic of sovereignty has always been the state’s capacity to make authoritative decisions regarding the people and resources within its territory,” and they celebrate that “the three traditional characteristics of a state in the Westphalian system (territory, authority, and population)” have now been “supplemented by a fourth, respect for human rights.”73 This is conceived by some to represent an unprecedented alteration of the rules of sovereignty. In an influential article written in the wake of the first cases of humanitarian intervention after the end of the Cold War, for example, Jarat Chopra and Thomas Weiss declared: “That a state’s legitimacy can determine its sovereignty gives this term a completely new meaning.”74 As subsequent chapters demonstrate, however, the practice of sovereign recognition has historically been much more complex and subject to variation than is often assumed.75 It has involved conceptions of legitimate statehood that have at times demanded much more, and at other times much less, than the capacity to rule and the effective control of a territory. Sovereign recognition has been variously understood to be conditional upon principles of monarchical rule, national self-determination, “civilization,” and guarantees for the protection of minority and individual rights. Moreover, the era of colonialism in sub-Saharan Africa was brought to an end through recognition of the sovereign independence of what Jackson has termed “quasi-states,” so called because many of them were unable to exercise effective control within their territory.76 Put simply, the requirements

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for sovereign recognition are not fixed. They can and have been constructed and reconstructed in a variety of ways that reflect the evolving legitimacy principles of international society.77 It is worth noting that the requirements for recognition and the responsibilities that flow from recognition have historically been distinct but closely related, and they have tended to feed into each other. For example, the requirement that newly constructed European states provide guarantees for the protection of the rights of national minorities at the end of the First World War is rightly understood as an antecedent of the idea that recognized sovereign states have a responsibility to promote and defend minority and individual rights that would be more firmly established by international society in the second half of the twentieth century. Thus the historical construction of the requirements for sovereign recognition is an important part of the story of the development of the relationship between sovereignty and responsibility.

Interpreting Sovereignty I necessarily draw on a wide range of sources to develop my history of the relationship between sovereignty and responsibility, within both international society and domestic societies, that spans more than four centuries. With respect to relations between states, I examine three types of evidence. The first is declarations about the meaning of sovereignty made by international society at key historical “moments.” It has become common to investigate changes in the principles or norms of international society by undertaking focused analyses of major international peace settlements that have been concluded since the seventeenth century.78 It is suggested that these settlements constitute key moments in which we find clearly articulated the negotiated principles of international legitimacy that underpin the construction of new international orders.79 These moments, such as Westphalia (1648), Vienna (1815), Versailles (1919), and San Francisco (1945), offer a rich body of evidence regarding the construction and reconstruction of the responsibilities of sovereignty. By examining the negotiations about both the terms of the peace and the key principles upon which the new international order would be grounded, we can draw a picture of the meaning of sovereignty being constructed and the extent of consensus on this construction. However, these are not the only international moments that I examine, since the rules of sovereignty have not only been negotiated by international society in the aftermath of major wars. I explore other



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key moments in which the society of states has negotiated agreements on matters that relate to the responsibilities of sovereignty such as the Berlin Conference (1884–85), at which the responsibilities of colonial trusteeship were institutionalized, and the UN World Summit (2005), at which international society endorsed the “responsibility to protect” principle, as well as particular international conventions and treaties that have had important implications for sovereignty such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Again, the negotiated texts are considered in conjunction with the available documentation of the discussions and debates that produced these agreements. The second type of evidence is the legitimation practices of states. I interpret prevailing understandings of the meaning of sovereignty at a given time by examining appeals made by states to shared understandings of sovereignty, the justifications offered by states for their actions, and the social acceptance or otherwise of these justifications. Ian Hurd observes, “States (and people) appear to find it irresistible to provide a justification for their behavior, and this generally takes the form of showing how the behavior is covered by existing social norms.”80 Martha Finnemore similarly suggests with respect to the particular practice of intervention, “When states justify their interventions, they draw on and articulate shared values and expectations that other decision makers and other publics in other states hold. Justification is literally an attempt to connect one’s actions with standards of justice or, perhaps more generically, with standards of appropriate and acceptable behavior.”81 The justifications offered for actions and the reception of these justifications reveal much about shared understandings of the rules of sovereignty. I consider claims and arguments made by states variously seeking to justify behavior within their own territories or interference in the affairs of other states, as well as those that have opposed them. States have sometimes been judged to have acted in conformity with the rules of sovereignty. Sometimes they have been judged to have breached the rules. At other times, states have purposively endeavored to reconstruct the rules.82 Each of these kinds of cases can reveal much about how sovereignty has been understood at different times. However, as we will see, while consideration of the legitimation practices of states at times reveals relative consensus about the meaning of sovereignty, at other times it reveals deep contestation about sovereignty’s prevailing rules. The third type of evidence that I draw on is the arguments of influential theorists about the relationship between sovereignty and responsibility in international relations at a given time. In the seventeenth and eighteenth

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centuries in particular, theorists such as Hugo Grotius and Emmeric de Vattel played an important role in articulating the meaning of sovereignty with respect to relations between states at a time when the society of states itself was still emerging and only providing intermittent expressions of the negotiated meaning of sovereignty. I place progressively less reliance on the ideas of theorists of relations between states from the nineteenth century onward, since the society of states itself increasingly discussed, negotiated, and codified the rules of sovereignty during these years. Finally, as explained earlier, an adequate history of the relationship between sovereignty and responsibility cannot focus solely on the construction of sovereignty in the international realm. Evolutions in domestic conceptions of sovereignty have repeatedly fed into international society’s construction of sovereignty. Therefore, in this book I also trace theories of sovereignty and justifications for sovereign authority offered by Bodin, Hobbes, Locke, and Rousseau, among others, because their influential works provided the normative grounds for subsequent domestic and international constructions of the rules of sovereignty. I also trace domestic conceptions of sovereignty expressed by rulers such as Louis XIV and peoples such as the American and French revolutionaries, as these too reveal much about the historical evolution of the relationship between sovereignty and responsibility. Before concluding, a brief note on power is in order. In The Twenty Years’ Crisis, E. H. Carr famously claimed that the principles of world order and international morality that prevail at a given time tend to reflect the interests of the powerful.83 This would certainly seem to be the case with respect to the social and historical construction of sovereignty. As Samuel Barkin observes, “It is usually the conceptions of legitimacy and sovereignty of the existing powerful states in international relations that become the international norm.”84 Powerful states have for much of sovereignty’s history been able to exert unequal influence and successfully bend international consensus about the rules of sovereignty to their own will. As we will see in subsequent chapters, the requirements for sovereign recognition and the accepted conditions for legitimate intervention, for example, have tended to reflect the interests of dominant states. That being said, numerous scholars have observed in recent years that material power by itself is often not sufficient to establish or sustain a particular conception of international order.85 The construction of international orders generally, and the rules of sovereignty more specifically, require social legitimation. While the material power of a particular state or group of states may assist an attempt to impose a certain conception of sovereignty



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upon international society, such imposition will ultimately succeed only if it is socially accepted. Indeed, Carr himself drew a similar conclusion: Power goes far to create the morality convenient to itself, and coercion is a fruitful source of consent. But when all these reserves have been made, it remains true that a new international order and a new international harmony can be built up only on the basis of an ascendancy which is generally accepted as tolerant and unoppressive or, at any rate, as preferable to any practicable alternative.86

Power, then, plays a crucial but contingent role in the construction of sovereignty. It is also true that powerful states have frequently appealed to existing rules or attempted to redefine the rules of sovereignty in ways that have been hypocritical or disingenuous. The historical exclusion and oppression of the non-European world in the name of certain constructions of sovereign authority is an oft-cited example. That being said, the motivations and moral integrity of states as they have negotiated the rules of sovereignty and justified their actions according to these rules are not particularly relevant for the present study. Rather, I am concerned with the extent to which the declarations and behaviors of states are socially accepted and understood to be in accord with sovereignty’s meaning; I am concerned with how the arguments of states—hypocritical, disingenuous, or otherwise—and their reception reveal the rules of sovereignty that prevail at a given time.87 In order to tell a history of sovereignty and responsibility, my task is not to ignore the self-interested or cynical claims of powerful states in order to find sovereignty’s “real” or “natural” meaning. Rather, I need to take these claims and their reception into account and to consider what they tell us about how sovereignty was understood. There is no discoverable objective meaning of sovereignty that is to be found at a given time uncontaminated by power. The socially constructed meaning of sovereignty is all we have, and power plays a crucial role in this construction.88 To recognize the importance of power in the construction of sovereignty is not to endorse a relativist conception of morality or to concede that we are unable to make moral judgments about the extent to which historical constructions of sovereignty and the actions justified in their name ought to be either lamented or celebrated. Indeed, I suggest in the conclusion to the book that present-day normative debates about the responsibilities of sovereignty would be well served by considering the moral implications of past constructions rather than relying on the conventional, mythical history in which sovereignty does not entail responsibilities until the late twentieth

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century. However, as noted in the introductory chapter, such moral judgment is not the task of the present study, which aims only to understand the way in which sovereignty and the responsibilities that it entails have varied and evolved over time. h This chapter has laid a conceptual foundation for the examination of the historical development of the relationship between sovereignty and responsibility that follows in chapters 2 through 6. I began by arguing that sovereignty is not a natural and unchanging principle but something that demands conceptual and historical inquiry. I defended a constructivist approach that, in contrast to Krasner’s model, emphasizes sovereignty’s contingent and contested nature. I then outlined a framework for conceptualizing the social and historical construction of sovereignty that enables us to understand the development of its relationship with notions of responsibility. This framework conceives sovereignty in terms of its historically contingent “rules,” which include the requirements for recognition and the rights and responsibilities that flow from recognition. I briefly outlined the nature of these rules, emphasizing that they are each historically contingent rather than naturally given. Finally, I briefly outlined where I will get my evidence for interpreting the historical development of these rules of sovereignty. The task of the remainder of the study is to build upon these conceptual foundations a history of the social construction of sovereign responsibilities. I begin to do so in the following chapter, which examines the gradual development of sovereignty in early modern Europe. This chapter reveals that, from the moment the concept of sovereignty was first articulated, it was intimately tied to solemn obligations to God and to fellow sovereigns. Both in its justification within domestic societies and in its construction by an emergent society of states, sovereignty entailed responsibility.

chapter two

Sovereignty in Early Modern Europe

M

edieval Europe was characterized by heteronomous systems of social organization. The kinds of political authority were many. The pope and his bishops, the emperor, kings, lords, barons, and monastic and chivalrous orders each asserted various, and often overlapping, rights to rule. In the words of Perry Anderson, the political map “was an inextricably superimposed and tangled one, in which different juridical instances were geographically interwoven and stratified, and plural allegiances, asymmetrical suzerainties and anomalous enclaves abounded.”1 The transition to sovereignty required that each regnum came to be seen as independent from any external authority and that the supreme authority within each regnum came to be understood as having no internal rivals either as the maker of law or as the object of allegiance.2 In the thirteenth century, French and Neapolitan jurists began to assert the supremacy of the king in his own kingdom.3 A challenge to the legal and jurisdictional powers of the Church was fully articulated by Marsiglio of Padua in the first half of the fourteenth century and developed further in the sixteenth century by Lutherans, who challenged prevailing beliefs about the temporal role of the true Church and by early proponents of absolute monarchy in France. Sixteenth-century jurists also began to challenge feudal assumptions about kingship, arguing that the monarch should not be conceived simply as the apex of a pyramid of authority but rather, in the words of Jean Bodin, as an “absolute and perpetual” sovereign who ruled over his subjects.4 The idea of “absolute sovereignty” that emerged was characterized by its critics, from the French Huguenots of the sixteenth century onward, as a program for arbitrary authority and a justification for tyranny. This image of absolute sovereignty remains influential today.5 As sovereignty developed in Europe, the idea of the single polity that was Christendom was gradually 31

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replaced by what Ian Clark terms an “embryonic” international society of sovereigns, constituted through a process of mutual recognition.6 The conventional narrative of the emergence of the international system tells of the establishment of the “traditional” sovereign right of freedom from outside interference at the Peace of Westphalia in 1648. The standard story of early modern sovereignty in both its internal and external aspects, then, is one of arbitrary, unconditional, and indefeasible political authority. This story, however, is not matched by reality. From the moment it first emerged in early modern Europe, sovereignty was understood to entail responsibilities. To demonstrate this claim, this chapter proceeds in two parts. The first examines relations between rulers and ruled in this period according to the dominant and evolving discourse of absolute sovereignty. I find that this discourse was characterized not only by forceful justifications for centralized and irresistible rule but also a sincere concern with opposing the arbitrary and tyrannical use of authority. Both theological and secular defenses of absolute rule rested upon an intimate connection between sovereign authority and responsibility. Thomas Hobbes went so far as to insist that the authority of the sovereign is legitimate only so long as he can fulfill his obligation to protect the safety of the people. While theorists of absolutism tended to emphasize that sovereign rulers could not be legitimately resisted by their own people, these rulers were held to be accountable to God and also to other sovereigns for the treatment of their people; tyrants would be judged by God for their actions and, as will be examined further in the second part of the chapter, could be rightfully punished by neighboring princes. Sovereigns were not answerable to the people, but they were certainly understood to be responsible for the people. The second part considers the external dimension of sovereignty: the rights and duties of sovereignty articulated by theorists of the law of nature and nations and the rights and duties that sovereigns constructed in their relations with each other. I suggest that, rather than a right of nonintervention, it was the right to wage (just) war that was initially conceived as the external corollary of the internal supremacy of the sovereign. Hugo Grotius, for example, conceived of the right to wage war to uphold natural law as a fundamental right of sovereignty, and he was one of many who justified war to hold to account other sovereigns who violated this law and oppressed their own people. It was in this period also that sovereigns began to understand themselves to be a part of an international society that possessed both a capacity and a willingness to articulate not only the rights but also the responsibilities of legitimate statehood. I find, as others have done, that the conventional story of the Peace of Westphalia is simply not matched by



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reality. Not only were the “traditional” sovereign rights of nonintervention and freedom from external interference not established, but enforceable responsibilities for the toleration of religious minorities were established in 1648 by an emerging society of states. Finally, I observe that it was not until more than a century after Westphalia that Emmeric de Vattel clearly articulated for the first time the sovereign right of nonintervention, and yet even he held this right to be conditional on the protection of subjects from oppression. Far from the image that is conventionally portrayed of absolute sovereigns wielding arbitrary authority to treat their subjects as they wished, then, this chapter argues (1) that legitimate authority in early modern Europe was understood to entail solemn obligations under God and mutual obligations between ruler and ruled, (2) that leading theorists allowed a right of intervention to protect people from irresponsible rule, and (3) that a society of states was emerging that was willing to construct rules of legitimate statehood including not only rights but responsibilities.

Absolute Sovereignty The dominant discourse of sovereignty as it emerged in early modern Europe emphasized that legitimate sovereign authority was “absolute.” Opponents of absolute monarchy commonly conflated the concept with “arbitrary” authority and despotism. The so-called monarchomachs who first appeared in the second half of the sixteenth century, English parliamentarians of the 1640s, and, later, John Locke, each argued that absolute authority was, by its very nature, arbitrary and inevitably led to tyranny. Indeed Locke repeatedly employed the phrase “absolute, arbitrary power,” implying that no distinction ought to be made between the two concepts.7 However, this was not what sixteenth- and seventeenth-century theorists of absolute sovereignty intended to uphold and defend.8 Seeking to justify centralized and stable political rule that could put an end to civil wars and confessional conflict, these early modern theologians, philosophers, and jurists argued that the ruler was “absolutely” sovereign in the sense that he was completely independent, answerable to no other authority within his domain.9 The authority of the sovereign was held to be entirely supreme and indefeasible, not derived from any other earthly source. Yet theorists of absolute sovereignty did not claim that this authority was unlimited. They were concerned to vindicate the authority of the crown and refute theories of resistance, thus preserving order and mitigating anarchy, but they were equally concerned with opposing tyranny. The absolute authority

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of the sovereign was conceived to be limited by various divine, moral, and juridical responsibilities. From its earliest articulation by Bodin through the claims of divine-right theorists to the secular justification for sovereign authority advanced by Hobbes, absolute authority in early modern Europe was understood to entail an evolving range of responsibilities under God and mutual obligations between rulers and ruled.

Jean Bodin Bodin’s Six Books of the Commonwealth, written in 1576, is widely agreed to be “the first systematic discussion of the nature of sovereignty.”10 One writer suggests that “it is almost possible to speak of him as its inventor.”11 As Quentin Skinner emphasizes, Bodin’s work on sovereignty can only be fully understood in the context of the revolutionary constitutionalism proposed by French Calvinists, known as the Huguenots, during the French religious wars of the second half of the sixteenth century.12 In radical and provocative treatises, writers such as Theodore Beza, François Hotman, and the author of the Vindiciae Contra Tyrannos spoke of the “the inviolable right of men” to life and liberty and claimed that the people “remain in the position of the owner” of their original sovereignty, which they merely dele­ gate to a ruler “in order that he might exercise it for the public good.”13 The people, they argued, retained ultimate rights of sovereignty, and therefore they, or at least the Estates General and inferior magistrates of the realm, had a right to resist and to remove rulers who act to the people’s detriment.14 In his earlier work, Bodin had accepted the arguments of more moderate French constitutionalists who for the most part took for granted the absolute authority of the monarch, while insisting that the king was subject to the fundamental laws of the realm.15 However, writing at the high point of the Huguenot revolution, he now abandoned most of these constitutionalist restraints on authority and presented a forceful defense of absolute sovereignty that demanded “the outlawing of all theories of resistance and the acceptance of a strong monarchy as the only means of restoring political unity and peace.”16 Bodin wrote that he intended Six Books as a response to those who claimed that “princes sent by providence to the human race must be thrust out of their kingdoms under a pretence of tyranny,”17 to those “dangerous” men who, “under the pretext of . . . popular liberty, . . . induce the subjects to rebel against their natural princes, opening the door to a licentious anarchy, which is worse than the harshest tyranny in the world.”18 Even while lamenting tyranny, therefore, Bodin refuted the idea that the people could ever have a right of resistance:



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The person of one’s native ruler . . . should be regarded as more inviolable even than that of one’s father, for he is ordained and set over his subjects by God. I conclude then that the subject is never justified in any circumstance in attempting anything against his sovereign prince, however evil and tyrannical he might be. . . . What a great number of tyrants would be discovered if one might kill them.19

He justified the doctrine of nonresistance on the grounds that princes are established by God as “his lieutenants to command the rest of mankind. . . . He who contemns his sovereign prince, contemns God whose image he is.”20 The authority of the sovereign, therefore, was absolute and indefeasible; the sovereign was not sovereign if he was accountable to the people.21 It followed for Bodin that an essential attribute of absolute sovereignty was the authority to make law by command: “The first attribute of the sovereign prince . . . is the power to make law binding on all his subjects in general and on each one in particular.”22 This authority did not require the consent of others, nor was the sovereign ruler subject to the commands of any other authority.23 Moreover, the prince was not subject to his own laws.24 Bodin’s sovereign was liberated from the law and wielded absolute authority. However, Bodin also established that this authority was not arbitrary. While the sovereign possessed the authority to make law by command, this law ought to be “modelled on the law of God.”25 “Those who say without qualification that the prince is bound neither by any law whatsoever, nor by his own express engagements, insult the majesty of God and of nature, and all just covenants and solemn agreements.”26 The rightness of the law was dependent upon its conforming to the principles of divine and natural law: “All the princes of the earth are subject to them, and cannot contravene them without treason and rebellion against God. . . . The absolute power of princes and sovereign lords does not extend to the laws of God and nature.”27 He repeated elsewhere, “If we insist . . . that absolute power means exemption from all law whatsoever, there is no prince in the world who can be regarded as sovereign, since all the princes of the earth are subject to the laws of God and of nature, and even to certain human laws common to all nations.”28 Bodin provided two examples of duties the prince was bound to observe under natural law: the responsibility to honor contracts, even those made with his own subjects, as a consequence of the obligation to keep one’s promises, and the responsibility to respect private property as an inalienable right.29 Bodin also retained some constitutionalist limitations in his new theory of sovereignty. He claimed that the prince must abide by those constitutional norms that define the basis and location of sovereign

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authority, such as the Salic law, which determined rightful succession to the French throne.30 Thus, while the authority of the sovereign was absolute, it remained a power that must only be used within bounds.31 Hinting at a notion that would become central to Hobbes’s justification for sovereign authority, Bodin spoke of “the mutual obligation between subject and sovereign, by which, in return for the faith and obedience rendered to him, the sovereign must do justice and give counsel, assistance, encouragement and protection to the subject.”32 Bodin’s doctrine of absolute sovereignty, therefore, was no defense of tyranny. Sovereign rule was absolute in the sense that it was supreme and irresistible, but absolute authority did not equate to arbitrary authority. It entailed both rights and responsibilities.33 It has been suggested that these sovereign responsibilities were essentially unenforceable. After all, Bodin purposefully weakened the legal force of checks upon the king by eliminating most of the constitutional restraints on monarchical authority, and he firmly ruled out a right of popular resistance to the monarch. Charles Merriam concludes that the divine and natural limitations to the authority of the sovereign suggested by Bodin were “ethical rather than political in character, and could at best bind only the conscience of the ruler.”34 However, while denying a right of resistance, Bodin indicated that the sovereign was accountable not only to God, an accountability that was not to be taken at all lightly, but also to his fellow princes. “I do not wish to deny to neighbouring princes the right to pursue tyrants by force of arms,” he plainly declared. “I only wish to deny it to the subject.”35 He granted princes a right to intervene when other princes failed to carry out their sovereign responsibilities and oppressed their own people: For just as it is right and proper for anyone to take forcible action to defend the honour and life of those who are oppressed unjustly when the law offers no remedy, so it is highly honourable, and befitting a prince, to take up arms in defence of a whole people unjustly oppressed by a cruel tyrant. . . . In such a case there is no doubt that a virtuous prince can proceed against a tyrant either by force of arms, diplomatic intervention, or process of law.36

As will be demonstrated in the second half of this chapter, Bodin was just one of many early modern theorists who justified the use of force to protect the oppressed and to punish tyrants for failing to discharge their sovereign obligations.



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To summarize, writing in a context of political instability, Bodin’s primary intention was to ward off anarchy and restore peace through the defense of a strong and well-ordered monarchy. Yet he had no intention of defending tyranny. His justification for absolute authority was coupled to its limitations: the sovereign was ordained by God and, in turn, was subject to his divine laws; the sovereign demanded obedience from his subjects and, in turn, was responsible for their protection. The sovereign may not have been accountable to the people for the fulfillment of these obligations, but he was conceived to be accountable to God and to other princes. Bodin’s arguments would be taken up and developed further by theorists of the divine right of kings through the seventeenth century. For these theorists, the absolute authority of the sovereign monarch would remain intimately tied to solemn responsibilities under God.

The Divine Right of Kings In early modern Europe, the legitimation of absolute sovereignty tended to incorporate appeals to the “divine right” of kings.37 The concept of divine right combined Bodin’s idea that an absolute form of sovereignty ought to be located in a supreme and independent ruler with the Christian belief that such authority is directly ordained by God.38 Divine-right theory had deep roots in early Christian beliefs about temporal authority and also more recent Reformation ideas about kingship. The apostle Paul had written, “There is no authority except from God, and those that exist have been instituted by God. Therefore, whoever resists the authorities resists what God has appointed, and those who resist will incur judgment.”39 In the sixteenth century, Martin Luther had demolished the doctrine of the two swords, which had divided authority between spiritual and secular rulers in medieval Europe: “Henceforth there should be but one,” John Figgis summarizes, “wielded by a rightly advised and godly prince.”40 To the Protestant doctrine that the authority of princes is ordained by God was added medieval notions about the special divinity of kings and also newer ideas about the divine sanction of hereditary succession.41 In the more extreme formulations of divine-right theory, the authority wielded by divinely ordained hereditary monarchs was conceived as resembling that of God. In the early seventeenth century, for example, James I of England asserted to Parliament, Kings are not only God’s lieutenants upon earth and sit upon God’s throne, but even by God himself they are called gods . . . they have power

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of raising and casting down, of life and of death, judges over all their subjects and in all causes and yet accountable to none but God only.42

A primary objective of proponents of divine-right theory was to justify the prohibition of resistance. It was an argument employed particularly in England and France in opposition to the resistance theories of Catholics, Presbyterians, and Calvinists. Divine-right theorists repudiated the monarchomachs’ belief that sovereign authority originated in the people and instead insisted that monarchical authority was derived directly from God. The implication was that resistance to the king was equivalent to resisting the will of God.43 Nevertheless, with a few minor exceptions, divineright theorists did not seek to legitimize arbitrary authority.44 Rather, the divinely ordained authority of kings was conceived to entail demanding obligations under God. While English theories of irresistible monarchy were equated with justifications for arbitrary authority and tyranny by mid-seventeenth-century English parliamentarians and later by Locke, this was not how they were usually intended to be understood by their proponents. As Glenn Burgess argues, English divine-right arguments did not necessarily amount to any particular conception of what rights the king had, and they typically did not entail incompatibility with constitutional limitations. He suggests that “divine-right theory—even the view that kings derived their authority immediately from God—was perfectly compatible with the view that kings were also limited by the law.”45 Moreover, as much as it was a theory about the rights of rulers, divine-right theory was a theory about the obligations of both rulers and ruled to abide by God’s precepts, and defenders of the divine ordination of kings readily warned their sovereigns of the consequences of ignoring God’s commands. Burgess concludes that “divine-right theorists almost all looked for a way of retaining the king’s duty to govern lawfully, even while freeing him from other human authorities.”46 In France, the case for the divine right of kings was most famously made by Louis XIV’s court theologian and preacher, Jacques-Benigne Bossuet. Writing in the late seventeenth century, he argued that power is ordained by God, that kings have a special divinity, and that they are providentially chosen: “ ‘By me kings reign,’ says eternal Wisdom, and from this we should conclude not only that the rights of royalty are established by his laws but the choice of rulers is an effect of his providence.”47 Bossuet clearly declared that the power of the monarch is “absolute in relation to constraint: there being no power capable of coercing the sovereign. . . . The prince is account-



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able to none for what he commands. . . . No other power can challenge . . . [the power] of the prince.”48 Bossuet’s concept of the divine right of kings permitted no constitutional limitations on monarchical authority, yet he acknowledged the obligation of the king to obey God’s just commands. While the authority of kings is derived from God, he cautioned, they should not think that they are free to use it “however they please”:49 So many forceful considerations should induce kings to be continually conscious of the Gospel, always to heed this higher law, to allow themselves nothing that God does not permit, and never to let their power stray beyond the bounds of Christian justice. . . . Here is the peril of the great of the earth. Like other men, they must combat their passions; more than all others they must check their own power. For, as it is absolutely necessary for men to be restrained by something, the powers under which all bend should themselves recognize their limits.50

This, for Bossuet, was the distinction between absolute and arbitrary government, between kingship and tyranny. “The true character of the prince,” he wrote, “is to provide for the needs of the people, as that of the tyrant is to think only of himself.”51 Bossuet also combined traditional arguments for absolute sovereignty with newer Hobbesian arguments about the duty to protect the security of the people.52 He argued that the monarch should think of his subjects as individuals dependent upon the king for protection. “Love for the public good,” he claimed, “means having every possible and necessary regard for each individual, because it is of individuals that the public is composed.”53 This understanding of the absolute and divinely ordained authority of kings is echoed in Louis XIV’s own writings. It is generally agreed that Louis’s reign represents the apogee of absolute monarchy.54 While there is some question over the extent to which the French king was able to centralize and maintain absolute power over his territory,55 it is clear that his authority was forcefully justified as absolute, divinely sanctioned, and subject to no earthly limitations. He argued that supreme power in the state must not be limited by any human institution or persons lest the powerful members of society arrogate to themselves too much authority and the people suffer under “thousands and thousands of petty tyrants.”56 No distinction was made between the office and the person of the monarch. Whether or not he actually declared “L’état, c’est moi,” this phrase expressed Louis’s conviction

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that no distinction should be drawn between the sovereign power and himself; he was the owner of the kingdom.57 As sovereign, he claimed to “possess all and command all.”58 The establishment of absolute royal authority in France at times came at great cost to Louis’s subjects. This was justified consistently on the meansto-an-end rationality of reason of state. Costly and even unjust means, it was asserted, were justified if it led to the maintenance of order and the advancement of state interests. Nevertheless, even Louis acknowledged that divinely ordained sovereign authority entailed subordination and accountability to God. God entrusts a king with some of His power, he believed, and “kings show their gratitude for [God’s] favours by enforcing the observance of His laws.”59 Louis argued that he was accountable to no one but God. Yet this was not simply a rhetorical move designed to justify arbitrary rule. He appears to have sincerely believed that he would be judged by God for the manner in which he ruled: “Louis took for granted, but never took lightly, the notion that he was ordained by God to perform God’s work on earth, and in so doing should copy divine methods as closely as he could.”60 While he denied that he was accountable to the people, he accepted that he was responsible for the people.61 “It is only for [our subjects’] advantage that we must give them laws,” he advised his son, “and we must not use the power that we have over them except to work more effectively to further their happiness.”62 We even find in Louis’s Memoires a conception of the interdependence of the obedience provided by the people and the protection imparted by the sovereign, a notion that, as we will see, was so central to Hobbes’s secular justification for absolute rule. Society is held together, Louis observed, “only by a reciprocal exchange of duties. The marks of obedience and respect that we receive from our subjects are not gratuitous gifts, but are given in consideration of justice and protection which they claim to receive from us.”63 In sum, divine-right theorists believed that sovereign authority entailed duties to obey God’s laws and to eschew tyranny, just as Bodin had before them. Sovereigns were not held to be answerable to the people themselves, since their authority was derived directly from God. In turn, the people had no right to disobey or resist tyrannical rulers. Yet there was a sincere belief that sovereigns were accountable to God for the treatment of their subjects. Theorists and kings alike understood, as Paul had declared, that a ruler was “God’s servant for [the subjects’] good.”64 And they grasped at least to some degree, as Luther had once exclaimed, “what an awful responsibility it is to sit in high places.”65



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Thomas Hobbes The ideas of Bodin and divine-right theorists about the absolute authority of monarchs rested to a large extent on traditional, medieval notions of king­ ship. As J. H. Burns observes, the tradition was certainly stretched, but “the mould had not yet been decisively broken.”66 Theories of the divinely ordained absolute sovereignty of the monarch had been challenged since the sixteenth century by marginal voices who proclaimed the sovereignty of the people. Theories of popular resistance outlined by the French Huguenots were adopted by Calvinists in the Netherlands in the revolt against Spanish authority and further developed by defenders of Parliament in opposition to the Crown in seventeenth-century England.67 “The whole art of Soveraignty,” Henry Parker declared in 1642, depends on recognizing “that power is but secondary and derivative in Princes,” further noting, “The fountaine and efficient cause is the people.”68 The “popular sovereignty” that emerged through the struggles of the civil war and the Glorious Revolution in England was essentially the sovereignty of Parliament. “The sovereignty of the people of England,” one observer concludes, “began and ended in the sovereignty of their representatives.”69 The more radical critiques advanced by the Levellers, George Lawson, and Locke, which sought to distinguish between the constituent power of the people and the legislative power of government, would remain marginal voices for some time to come. These origins of popular sovereignty are explored further in the next chapter. In the mid-seventeenth century, a new voice emerged that challenged not only the divine-right theorists but also those defending the sovereignty of Parliament in England. In Leviathan, published in 1651, Hobbes argued that sovereignty lay not in the natural person of the monarch, nor in the body of the people, but rather in the “artificial man” that is the state.70 He grounded the authority of the state or commonwealth in the idea of a mutual covenant among the multitude of the people. The state, he argued, “is one person, of whose acts a great multitude by mutual covenants one with another, have made themselves everyone the author,” and “he that carrieth this person, is called sovereign.”71 The act of authorizing a sovereign representative converts the multitude into one person.72 Thus the multitude creates “a real unity of them all, in one and the same person, made by covenant of every man with every man.”73 Hobbes’s argument was a secular defense of absolute rule. The authority of the sovereign was not divine in origin or character; it was instituted by the body of the people.74 The acts of those who wield authority as sovereign

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representatives, be they a monarch or an assembly, were held to be legitimate not because they are ordained by God but because they are authorized by the people.75 Yet sovereignty did not remain in the people. The original sovereignty of the people, Hobbes emphasized, was “abandoned or granted away” to the Leviathan.76 The multitude of the people covenant to escape the insecurity and brutality of the state of nature and to enter into civil society by submitting to the “artificial man” that is the sovereign state: “That right which every man had before to use his faculties to his own advantages is now wholly translated on some certain man or council for the common benefit.”77 Many of the limitations on sovereign authority suggested by Bodin were swept away by Hobbes. The rights of the Hobbesian sovereign are expansive: he can commit no injustice, cannot be punished, and cannot forfeit his right to the people; he chooses what doctrines are fit to be taught to his subjects; he has the right to make war and peace, the right to reward, and the right to punish.78 Hobbes’s unrelenting logic led him to argue against the possibility of limitations on absolute rule. While he accepted that the sovereign should be guided by the laws of God and of nature, he declared that their effectiveness as binding rules of conduct was dependent upon their being “promulgated by the sovereign as civil laws.”79 However, Hobbes permitted a crucial exception in insisting that the right of individuals to personal safety could not be legitimately contracted away. The right to safety was not a “liberty” that individuals could do with as they pleased. It was an “obligation” of natural law. “A law of nature,” he argued, “is a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life.”80 For Hobbes, the right of individuals to safety remains inalienable and unchanging as they move from the state of nature to civil society, since this right of natural law remains an abiding principle. The safety of the people, then, is for Hobbes a responsibility of the state that cannot be revoked by civil law; it is the end for which the sovereign is trusted with authority: The office of the sovereign, (be it a monarch or an assembly,) consisteth in the end, for which he was trusted with the sovereign power, namely the procuration of the safety of the people, to which he is obliged by the law of nature, and to render an account thereof to God, the author of that law, and to none but him. But by safety here, is not meant a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger, or hurt to the commonwealth, shall acquire to himself.81



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Hobbes does not suggest that the sovereign is accountable to the people; he is said to be accountable to none but God. Yet the sovereign is certainly responsible for the people’s protection. Indeed, Hobbes admits that the authority of the sovereign is lost if he is unable to fulfill his end of protecting the safety of the people: The obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished. . . . The end of obedience is protection.82

As in earlier theories of absolute sovereignty, then, we find an intimate connection between sovereign authority and responsibility. The authority of the Hobbesian sovereign is legitimate only so long as he can discharge his responsibility to protect the safety of the people. Hobbes himself points to this connection when he concludes that his treatise was written “without other design, than to set before men’s eyes the mutual relation between protection and obedience.”83 To summarize, we find in Leviathan a powerful defense of absolute sovereignty. Yet it is a very different conception of absolute sovereignty than those that had predominated. Hobbes challenged the orthodoxies of divinely ordained, traditional kingship and abandoned all the constitutional limitations and almost all of the divine and natural limitations on sovereign authority that had been accepted by earlier defenders of absolute rule. Never­ theless, while he may have dismissed “tyranny” as simply a name given to monarchy “misliked,” his was no defense of tyrants.84 At the heart of his theory was the interdependence of obedience and protection, of authority and responsibility. Legitimate sovereign authority, for Hobbes, entailed a responsibility for the protection of the safety of the people. As subsequent chapters will reveal, this formulation would have an enduring influence on the development of the sovereign state in Europe and beyond.

Sovereignty in Relations between States As outlined in chapter 1, the conventional story told in international relations reduces the development of the external dimension of sovereignty to a mythical tale of the establishment of a timeless and indefeasible sovereign right of nonintervention at the Peace of Westphalia. This story is simply false. In the sixteenth and seventeenth centuries, neither theorists of the

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law of nature and nations nor sovereign rulers in their relations with each other conceived of sovereignty in terms of an unconditional right to freedom from external interference. Indeed, while a concept of sovereign jurisdiction and principles for the restraint of war between sovereigns were articulated by some, it would be anachronistic to suggest that they conceived of sovereignty entailing even a conditional right of noninterference in any recognizable sense prior to the mid-eighteenth century. In this section, I argue that early modern theorists commonly understood sovereignty not in terms of a right of nonintervention or a right to the arbitrary treatment of subjects but in terms of a right to wage (just) war, including war to rescue the oppressed and to punish tyranny. I also suggest that, while Westphalia does represent an important moment in the historical development of an international society of states constituted through mutual recognition, we do not find here the establishment of a supposed “traditional,” noninterventionist conception of sovereignty. Rather, we find an emergent international society demonstrating a capacity and a willingness to ascribe not only rights but enforceable responsibilities to states, including responsibilities for the toleration of religious minorities. Finally, I observe that the right of nonintervention was clearly articulated for the first time a century after Westphalia, in the work of Vattel, and yet even he insisted that it remained for states to judge for themselves when they could justly wage war and, like others before him, allowed that states could rightfully intervene to rescue from tyranny oppressed peoples who requested their assistance.

The Law of Nature and Nations Central to the emergence of the concept of sovereignty in early modern Europe was the establishment of the right of the sovereign prince to wage war. In the thirteenth century, St. Thomas Aquinas had insisted that the right to war was possessed by the prince alone: For it does not pertain to a private person to declare war, because he can prosecute his rights at the tribunal of his superior. . . . Rather, since the care of the commonwealth is entrusted to princes, it pertains to them to protect the commonwealth of the city or kingdom or province subject to them.

He framed the prince’s right to wage just war in defense of the community as an extension of the right to punish criminals within the community: “And just as it is lawful for them to use the material sword in defense of



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the commonwealth against those who trouble it from within . . . so too, it pertains to them to use the sword of war to protect the commonwealth against enemies from without.”85 In 1621, Francisco Suárez articulated this right of war in the language of sovereignty. Given that there was no higher earthly authority, he insisted, the right of just war or just punishment to repel injury rested in the hands of the sovereign: In the world as a whole, there must exist . . . some power for the punishment of injuries inflicted by one state upon another; and this power is not to be found in any superior, for we assume that these states have no commonly acknowledged superior; therefore, the power in question must reside in the sovereign prince of the injured state; and consequently, war of the kind in question has been instituted in place of a tribunal administering just punishment.86

In The Rights of War and Peace (1625), Hugo Grotius defended a more expansive right of just punishment grounded in an analogy between natural individuals and states. Just as individuals enjoyed not only the right to defend their own life but also “the right of chastisement” prior to entering civil society,87 so too did sovereigns in an international condition of nature have a right not merely to defend themselves and repel injury but to punish grievous violations of the law of nature: We must also know, that Kings, and those who are invested with a power equal to that of Kings, have a Right to exact Punishments, not only for Injuries committed against themselves, or their subjects, but likewise, for those which do not peculiarly concern them, but which are, in any Persons whatsoever, grievous Violations of the Law of Nature or Nations.88

Grotius argued that this broad right of punishment resided in sovereigns, “those who are possessed of the supreme Power,” not because they exercised civil authority over those who were to be punished, but because they were “in Subjection to none.”89 And this sovereign right to wage war “against those who offend against Nature,” he insisted, “proceeds from the Law of Nature.”90 In advancing this argument, Grotius explicitly aligned himself with Pope Innocent IV, who in the thirteenth century had claimed universal authority for the punishment of violations of the law of nature.91 Grotius now attributed this universal authority to sovereigns. Grotius outlined a range of violations of the law of nature that sovereigns had a right to punish by war: “We make no Doubt, but War may

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be justly undertaken against those who are inhuman to their Parents, . . . against those who eat human Flesh, . . . and against those who practise Piracy.”92 He also specifically indicated that the punishment of tyranny and the rescue of the oppressed were just grounds for war: If the Injustice be visible, as if a Busiris, a Phalaris, or a Thracian Dio­ medes exercise such Tyrannies over Subjects, as no good Man living can approve of, the Right of human Society shall not therefore be excluded. . . . And therefore . . . I may make War upon a Man, tho’ he and I are of different Nations, if he disturbs and molests his own Country, as we told you in our Discourse about Punishments, which is an Affair often attended with the Defence of innocent Subjects.93

While the absolute supremacy of the sovereign meant that subjects had no right to resist tyrannical violations of the law of nature, Grotius insisted, “we should not yet be able to conclude from thence, that others might not do it for them.”94 Indeed, the right to wage such war was a necessary attribute of sovereignty in an international condition of nature. Grotius was by no means alone in allowing war for “the defence of innocent subjects.” He followed a long line of theorists from a range of schools of thought who had defended such a right of war. In 1539, the Spanish scholastic Francisco de Vitoria had justified war “in defence of the innocent against tyranny” and to prevent the practice of “nefarious” customs such as human sacrifice and cannibalism.95 In 1579, the French Huguenot author of Vindiciae Contra Tyrannos had justified interference to assist “subjects of other princes who are being persecuted on account of pure religion, or oppressed by manifest tyranny.”96 As noted earlier, Bodin had in 1576 firmly refuted the resistance theories of the French Huguenots but had similarly justified war in defense of a people “unjustly oppressed by a cruel tyrant.”97 In 1598, the humanist scholar Alberico Gentili had likewise justified intervention to rescue the oppressed on the grounds that “the subjects of others do not seem to me to be outside of that kinship of nature and the society formed by the whole world.”98 Grotius’s broad argument that sovereigns possessed the right to punish grievous violations of natural law wherever they occurred was not accepted by all theorists. But those who rejected this doctrine tended to nevertheless allow war in defense of innocents in at least some circumstances. Writing a few years before Grotius, for example, Suárez plainly declared that “the assertion made by some writers, that sovereign kings have the power of avenging injuries done in any part of the world, is entirely false, and throws



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into confusion all the orderly distinctions of jurisdiction; for such power was not [expressly] granted by God and its existence is not to be inferred by any process of reasoning.”99 Nevertheless, while Suárez was quite circumspect on the right to war, he did allow war in instances where a prince “forcibly compelled his subjects to practice idolatry” and the whole state demanded “assistance against its sovereign,”100 as well as war “in order to defend the innocent” against infidel rulers who made human sacrifices to their gods.101 In 1672, Samuel Pufendorf similarly denied an expansive natural right of punishment: We are not to imagine that every Man, even they that live in the Liberty of Nature, hath a Right to correct and punish with War any Person that hath done another an injury. . . . It is also contrary to the natural Equal­ ity of Mankind, for a Man to force himself upon the World for a Judge, and Decider of Controversies. Not to say what dangerous Abuses this Liberty might be perverted to, and that any Man might make War upon any Man upon such a Pretence.102

Nevertheless, on the matter of taking up arms in defense of innocents, Pufendorf referred his readers to the opinion of Grotius and indicated that a sovereign could defend the subjects of another when these subjects requested assistance “to repress the insupportable Tyranny and Cruelties of their own Governors.”103 Certainly, some of those writing in favor of war to protect innocents had in mind the indigenous populations of the New World rather than the subjects of European sovereigns. Several have been rightly criticized as accomplices of European colonialism because of their permissive and biased doctrines of war (as well as their expedient formulations of trading and property rights and duties of hospitality).104 Indeed, Grotius’s earlier work, Commentary on the Law of Prize and Booty (1604–5), which offered many of the ideas about the right of war that would be more systematically presented in The Rights of War and Peace, was written on behalf of the United Dutch East India Company and has been described as “a major apology for the whole Dutch commercial expansion into the Indies.”105 The far-reaching rights of war offered by him and others would have “often brutal implications” for the natives of the New World.106 Nevertheless, the fact remains that these theorists typically expressed their arguments about the right to punish tyranny and rescue innocents in universal terms such that they applied not only to the New World but also to Europe. Moreover, several of them, including the author of Vindiciae Contra Tyrannos, Pufendorf,

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Locke, and, later, Vattel, explicitly applied their arguments to the protection of coreligionists, particularly Calvinists and Lutherans, from religious persecution within Europe.107 We will see in the next section that states acted on such arguments on several occasions within Europe in this early modern period, and they even read provisions of the Peace of Westphalia as providing for such a right of forcible rescue. The right of war to punish tyranny and rescue the oppressed was not articulated by sixteenth- and seventeenth-century theorists in terms of an exception to a sovereign right of noninterference in any clear and recognizable sense. They did not yet conceive of sovereignty in terms of this right. To be sure, sovereign authority was understood to imply external independence as well as internal supremacy. Suárez wrote of the “distinctions of jurisdiction” between sovereigns, and he asserted that “war is permissible [only] that a state may guard itself from molestation.”108 Grotius similarly accepted that, “since the Institution of Civil Societies, the Governors of every State have acquired some peculiar Right over their respective Subjects,” and he cautioned against rulers interfering in each other’s affairs, “lest by intruding into each other’s Provinces they should quarrel among themselves.”109 Such concepts certainly paved the way for the future articulation of a sovereign right of nonintervention. However, it would be anachronistic to suggest that sovereignty was understood at this point in terms of such a right. At best, these theorists may be understood as offering “precursors of the notion” of nonintervention.110 The external dimension of sovereignty was conceived not in terms of a right of nonintervention and its exceptions but in terms of a right to wage war and its limitations. It is worth noting, moreover, that, whereas numerous theorists such as Grotius asserted that the law of nature and nations included principles for the restraint of (unjust) war between states,111 Hobbes insisted that no limitations could apply to the right to war in an international state of nature, a condition of war of all against all: “Every commonwealth, (not every man) has an absolute liberty, to do what it shall judge . . . most conducing to their benefit.” He offered the Athenians and the Romans as examples of “free commonwealths: not that any particular men had the liberty to resist their own representative; but that their representative had the liberty to resist, or invade other people.”112 In this, Hobbes was merely taking the notion of supreme and absolute authority to what he understood to be its logical conclusion: sovereign authority could not be restrained by other earthly powers. Grotius and others were more willing than Hobbes to suggest that the sovereign right to war could be restrained in an international condition of nature. Nevertheless, it was widely agreed that this right to war included



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a right to use force against sovereigns who failed to discharge their natural obligations to eschew tyranny and protect their subjects from oppression.

The Peace of Westphalia The “traditional” meaning of sovereignty was not established in the works of theorists in the seventeenth century. Neither was it established in the provisions of the Peace of Westphalia. The Westphalian myth does a lot of work for the conventional story of sovereignty. It tells of the establishment of sovereign statehood and its timeless right of freedom from external interference; the internal affairs of a state were held to be no longer the concern of anyone but the state itself. It is this meaning of sovereignty that is said to have remained unchanged for several centuries before being challenged by the emergence of international human rights and ideas of conditional and responsible sovereignty in recent decades. This image of Westphalia is indeed a myth. When we examine the treaties of 1648, we find not only that the supposed “traditional” rights of sovereignty were not established at Westphalia but that responsibilities for the toleration of religious minorities were established by an emergent society of states. The beginnings of the Thirty Years’ War can be traced to the Bohemian revolt in 1618, a product of constitutional and religious tensions within the Holy Roman Empire. The whole of Europe would subsequently become drawn into a devastating series of wars as numerous ambitious states sought to dictate the settlement within the empire and also to achieve broader political and territorial objectives. Eventually, the losses inflicted by French and Swedish forces and their allies on the Austrian and Spanish Hapsburgs compelled Emperor Ferdinand III to accept the Peace of Westphalia, which was formalized on October 24, 1648.113 Signed after several years of negotiations and composed of two separate settlements, the Treaty of Osnabruck and the Treaty of Munster, the Peace of Westphalia has come to hold iconic status in the study of international relations. The Peace of Westphalia is commonly described as the origin of the “Westphalian system,” a system of states that are said to enjoy “Westphalian sovereignty.”114 Scholars ask whether the “pillars of the Westphalian temple” are “decaying” or we are beginning to move “beyond Westphalia.”115 We are repeatedly told that the Peace of Westphalia codified a concept of the sovereign state and its corollary, the principle of nonintervention, that has remained the cornerstone of the international system to the present day. One observer asserts that “the treaty established . . . the modern notion of sovereignty—that rulers were not obligated to obey any higher, external

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authority.”116 Another contends that Westphalia “legitimated the right of sovereigns to govern their peoples free from outside interference, whether any such external claim to interfere was based on political, legal or religious principles.”117 These examples could be multiplied many times over.118 Recent scholarship has sought to revise the meaning of Westphalia for international relations. Andreas Osiander contends that the “Westphalian myth” has little to do with the stakes over which the war was fought or the substantive content of the treaties. Rather, the myth is “really a product of the nineteenth- and twentieth-century fixation on the concept of sovereignty.”119 A range of studies, from Stephen Krasner’s realist analysis to Benno Teschke’s historical materialist work, have similarly concluded that Westphalia does not represent a moment in which timeless constitutive rules of international order were constructed and the “traditional” rights of sovereignty were established.120 What, then, was the Peace of Westphalia actually about? It was about resolving competing dynastic claims, settling questions of the division of territory (particularly between the Holy Roman Empire and the two victorious powers), and resolving issues about constitutional arrangements within the empire. It is difficult to find an articulation of any general principles of international relations such as sovereignty in the treaties. Despite claims to the contrary, Westphalia did not pronounce the end of papal or imperial authority. Papal authority had been in retreat for several hundred years prior to Westphalia, and the empire, which was also on the wane before 1648, did not cease to exist in practice until Napoleon’s conquest of Germany in 1806. Nor did Westphalia confirm the sovereignty of states within Europe generally or within the empire more specifically. Negotiators at Osnabruck and Munster drew upon a variety of institutional forms in reaching the settlement, which included not only sovereignty but also older heteronomous medieval forms, and while the German princely states were certainly granted some autonomy within the empire, it is not at all clear that they were recognized as sovereign. Nor did Westphalia in any way establish a sovereign right of nonintervention.121 Revisionist scholars have successfully demolished each of these myths, and they need not detain us here. What we do find in the Peace of Westphalia, however, is an important early example of the construction of the rights and responsibilities of states by what Ian Clark refers to as “an international forum, acting for an embryonic international society.”122 The Treaty of Osnabruck was struck between the Holy Roman Empire and the Protestant queen of Sweden. The Treaty of Munster was struck between the empire and the Catholic king of France. But almost all of the European powers were present at the negotiations.



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While England, Russia, Poland, and Turkey were absent, 194 European rulers had plenipotentiaries acting for them at the congress, and 109 represented states sent delegations of their own.123 In the Peace of Westphalia, Clark contends, we find the “development of a sense of international society, grounded in shared concepts of international legitimacy.” He describes a society “constituted by mutual recognition, and on a procedural principle of international consensus” that was capable of staking out a position on the rights and responsibilities of statehood.124 To be sure, the practices of recognition at Westphalia reflected the short-term interests of the victorious powers to a significant degree. French recognition of Portugal, Catalonia, and the German princely states as independent international actors was designed to weaken the Hapsburgs, and many of these would not actually succeed as sovereign states.125 However, it would seem that a nascent society of states based on mutual recognition did develop out of “the increasingly complex diplomatic milieu.”126 While the exact nature of the recognition granted by international society at Westphalia to the Swiss and the Dutch, the two most commonly cited examples of sovereign recognition, may be unclear, what is important is that recognition was for international society to grant.127 After Westphalia, political communities could participate in international society as sovereign states only if they were socially recognized as such.128 The procedural principle of international consensus was just as crucial to the development of this “embryonic international society.” The negotiators at Westphalia were persuaded that peace in Europe was dependent on this principle. There was a belief that states would comply with the settlement because it was a mediated expression of their collective will. Osiander tells us of a conviction that, “provided the rights of each of the participating actors could be established definitively, no source of conflict would remain.” This belief relied on “the status of legality as a consensus principle.”129 In the words of Hedley Bull, “the Westphalian treaties demonstrated in practice, just as Grotius had done in theory, that the independence or sovereignty of states was not incompatible with their subjection to law or their recognition of the common bonds of society.”130 It is in this sense that Martin Wight suggests that, at Westphalia, the states system “comes of age.”131 Among the provisions negotiated in 1648 were enforceable responsibilities of legitimate statehood. It is often claimed that Westphalia gave rulers the right to choose the religion of their dominion. In reality, the oft-cited principle of cuius regio eius religio (he who rules, his is the religion) was actually established at the Peace of Augsburg (1555), and it was limited

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in crucial ways at Westphalia. The religion of each German princely state was to revert to that which obtained in 1624, and the German princes were given clear responsibilities to exercise religious toleration. The Reformation of the sixteenth century had produced new ideas about religious liberty. Protestants argued that salvation could be attained by individuals through faith alone, and therefore freedom of religious belief should be considered a fundamental right.132 As Luther insisted, “Belief and unbelief is a matter of everyone’s conscience, and since this is no lessening of secular power, the latter should be content to attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.”133 Europe had been wracked by religious conflict through the sixteenth and early seventeenth centuries. Christian Reus-Smit explains that civil strife and interstate war had been at least partly fueled by Protestant ideas about the necessity of religious liberty and suggests that the Peace of Augsburg had failed to restore stability to Europe because, by granting princes authority to determine the religion of their territory, “it failed to deal with the key issue animating the decades of religious conflict—the individual’s right to liberty of religious conscience.”134 By the mid-seventeenth century, realizing that they could not convert one another by force and that the universal triumph of their respective faiths was beyond reach, European Catholics and Protestants had come to see that the only alternatives were continued instability or the provision of some measure of religious toleration.135 Just as the protection of human rights would be widely considered a precondition of international peace and stability in the wake of the Second World War three centuries later,136 so too the protection of religious-minority rights was conceived to be a prerequisite for the prevention of conflict in the wake of the Thirty Years’ War. Acknowledging the need for the protection of religious minorities within polities, and intending that this would facilitate a reduction of religious conflict between polities, negotiators placed religious liberty at the heart of the Westphalian settlement. In a section titled “Liberty of Conscience,” the Treaty of Osnabruck declared that those subjects of German princely states that chose to profess and embrace a religion (be it Catholicism, Lutheranism, or Calvinism) different from that of their prince were to be patiently suffer’d and tolerated, without any Hindrance or Impediment to attend their Devotions in their Houses and in Private, with all Liberty of Conscience, and without any Inquisition or Trouble, and even to assist in their Neighbourhood, as often as they have a mind, at the publick



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Exercise of their Religion, or send their children to foreign Schools of their Religion, or have them instructed in their families by private Masters; provided the said Vassals and Subjects do their Duty in all other things, and hold themselves in due Obedience and Subjection, without giving occasion to any Disturbance or Commotion.137

A ruler who embraced a particular religion, therefore, could not compel his subjects to do the same. Catholics were free to practice their religion in Protestant territories and vice versa, and both were free to emigrate or to worship and educate their children in neighboring territories. The princes additionally had a responsibility to ensure that subjects were not “excluded from the Community of Merchants, Artisans or Companies, nor deprived of Successions, Legacies, Hospitals, Lazar-Houses, or Alms-Houses, and other Privileges or Rights” because of their religion. Subjects were not to be denied the right to burial or charged for burial at a different rate from others because of their religion. And those who lived in denominationally mixed cities should be free to practice their religion without any “molest or trouble.”138 While the German princely states were not necessarily recognized as sovereign at Westphalia, they were certainly granted a significant degree of autonomy in their relations with the empire. In negotiating these provisions for religious toleration, the emergent society of states displayed both a capacity and an inclination to consensually declare that the autonomous authority of these states entailed not only rights but responsibilities.139 Moreover, these responsibilities were understood to be enforceable. As was demonstrated in the previous section, the external enforcement of responsibilities for the protection of subjects, including religious minorities, was by no means a new idea. Also, it was one that states already believed they had a right to act on. In a recent study, D. J. B. Trim has detailed how Elizabeth I of England, in the second half of the sixteenth century, repeatedly intervened diplomatically and militarily on behalf of persecuted Huguenots in France and oppressed Dutch Protestants rebelling against Spain, largely for strategic reasons but also because of a felt duty to aid coreligionists.140 Then, in 1655, in response to the “bloudy and barbarous Massacre” of at least three hundred Protestant Vaudois in Savoy and the expulsion of many more from their homes, Oliver Cromwell applied diplomatic pressure and the threat of naval force to ensure that massacres were brought to an end and the Vaudois granted a right to return to their valleys. Cromwell claimed to act out of both a desire to advance what he termed “the Protestant interest abroad” and a concern to alleviate terrible suffering.141

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The Peace of Westphalia now confirmed in treaty law the responsibility of states to ensure the protection of their religious minorities, and it bound neighboring states to enforce this responsibility: contracting parties agreed that they were “oblig’d to defend and protect all and every Article of this Peace against any one.”142 “Far from making religion an aspect of internal politics,” Derek Croxton rightly observes, “the Peace of Westphalia made religious liberty a matter of international responsibility.”143 Brendan Simms goes so far as to describe the Westphalian treaties as “nothing less than a charter for intervention: by fixing the internal confessional balance between German principalities and within the empire, they provided a lever for interference through the late seventeenth and eighteenth centuries.”144 It was understood within the empire that a ruler “could be brought into compliance with certain norms of good governance and even deposed if he continued to offend.”145 Principles of religious toleration were to be secured by the Reichstag, made up of representatives of all the German estates, and also by the Imperial Aulic Council, which was dominated by the emperor. In 1683, one German prince was deposed for excessively cruel persecution of witches. In 1708, a Catholic prince was sanctioned for mistreating Protestant subjects. In other instances, neighboring rulers acted to suppress tyranny for reasons other than the protection of religious liberty. Interventions against the Protestant Duke of Mecklenburg, which eventually led to his being deposed in 1728, for example, were undertaken by Protestant rulers of Hanover and Prussia and were justified as a response to the duke’s attempts to deprive the estates “of their age-old privileges, freedoms and rights” in order to “force them into arbitrary subjection.”146 Moreover, the Peace of Westphalia was understood to give the guarantor powers—Sweden and France—a right to intervene in the empire if princely states breached their duty of religious toleration. Indeed, in 1719–20, the English explored the possibility that they too could become a guarantor of the Westphalian treaties out of a desire to enforce the protection of Protestants within the empire. England sought the authority to end the persecution of Palatine Protestants given that one guarantor power, Protestant Sweden, was at this time too busy fighting for survival against Russia, and the other, Catholic France, was uninterested in coming to the defense of Protestants.147 George I of England explained, “We cannot abandon our religious relatives in the face of such hard persecution and oppression.”148 To be sure, realpolitik was frequently central to the motivations of intervening states. The English, for example, during these decades in part considered intervention a means to advance the “Protestant interest” or defend



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the “Protestant cause” and to prevent the popish threat from spreading to their shores.149 As Simms observes, “Confessional sentiment and strategic self-interest were almost synonymous.”150 But what is important for the present study is that states understood the protection of persecuted Protestants to be a legitimate ground for intervention, and they believed that such intervention was provided for by the Peace of Westphalia. The forcible punishment of tyranny and rescue of innocents was not merely an idea advanced by theorists of natural law. It was one that was read in treaty law and accepted by states, at least insofar as the protection of coreligionists was concerned. Certainly, Westphalia did not ensure the protection of religious minorities throughout Europe. It is true that religious conflict gradually decreased in Europe after 1648 as rulers came to understand that repression of religious minorities would only lead to domestic instability, retaliatory repression of minorities in other states, and international conflict.151 However, scholars have tended to overstate this decline, and in fact “religious warfare, persecution, and popular violence continued in many parts of Europe far into the eighteenth century.”152 In 1685, for example, Louis XIV revoked the Edict of Nantes, which had protected Huguenots in France since 1598, and the Duke of Savoy recalled the edict of toleration that his father had granted the Vaudois.153 Nevertheless, the toleration of religious minorities was a responsibility of sovereignty that would be routinely incorporated into international treaties after Westphalia, if not always enforced.154 This principle is rightly understood as an antecedent of subsequent minorityrights and human-rights regimes that have held sovereigns accountable to international society for the protection of their populations. In summary, we do not find at Westphalia the establishment of sovereignty in Europe. Sovereign states existed prior to the Thirty Years’ War, and heteronomous forms of political organization persisted beyond the peace. Neither do we find an articulation of the supposed “traditional” sovereign right of freedom from external interference. What we do find is an emergent international society with the capacity and willingness to articulate not only rights but responsibilities of legitimate statehood, including enforceable responsibilities for the liberties of subjects. After Westphalia, states would be increasingly required to conform to the consensually constructed rules of sovereignty. They would need to meet the requirements for legitimate membership in international society and adhere to the responsibilities that this entailed. The conventional story of sovereignty, then, is not matched by reality. From its earliest construction by an emergent society of

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states, as with its construction within domestic societies in Europe, sovereignty did not mean arbitrary, unconditional, and indefeasible political authority. Legitimate statehood entailed not only rights but responsibilities.

Vattel and the Sovereign Right of Nonintervention It is not until the mid-eighteenth century that we begin to find clear statements of a sovereign right of noninterference, in the writings of Christian Wolff and, more substantially, Emmeric de Vattel.155 In 1749, Wolff outlined a sovereign right of freedom from external interference grounded in his account of natural law: “By nature no nation has the right to any act which belongs to the exercise of the sovereignty of another nation. For sovereignty as it exists in a people or originally in a nation, is absolute,” and “perfection of sovereignty consists in its exercise independently of the will of any other.”156 However, this apparently clear statement of a right noninterference was confused by Wolff’s suggestion that the European nations were members of a fictional civitas maxima, or supreme state. “In the supreme state,” Wolff asserted, “the nations as a whole have a right to coerce the individual nations, if they should be unwilling to perform their obligation, or should show themselves negligent in it.”157 In place of Wolff’s civitas maxima, Vattel would assert a society of independent states. The moral personality of the state, which can be traced as far back as Plato’s Republic, had been revived in the seventeenth century in the form of Hobbes’s “artificial man” and Pufendorf’s “composite moral being.”158 It was now Vattel’s objective to firmly establish the independent sovereign state as the legitimate actor in international relations and to apply the law of nations to these “moral persons.” In The Law of Nations (1758), the Swiss diplomat declared: “The law of nations is the law of sovereigns; free and independent states are moral persons, whose rights and obligations we are to establish in this treatise.”159 He sought to find a middle ground between those such as the Spanish scholastics and Wolff that clung to the notion that states were part of a single societas humana or civitas maxima and those such as Hobbes who insisted on the impossibility of binding sovereign states to the law of nations. In ascribing moral personhood to states, Vattel intended to acknowledge that states, like individuals, are subject to the natural law, but also to affirm their natural liberty and independence. He maintained, as Grotius and others had before him, that natural law was applicable to states as it was to individuals because “Nations, or sovereign states, are to be considered as so many free persons living together in the state of nature.”160 He called this



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the “Necessary Law of Nations” and suggested it was “Necessary because nations are absolutely bound to observe it.”161 However, given the differences between states and individuals, Vattel concluded that the natural liberty of states would be too often violated if natural law was strictly applied. “It is therefore necessary, on many occasions,” he claimed, “that nations should suffer certain things to be done, though in their own nature unjust and condemnable; because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society.”162 So long as a state did not infringe on the liberty of another state, all other states were bound to tolerate it and respect its freedom and independence no matter how “illegal and condemnable” its actions may be.163 For Vattel, therefore, the natural liberty and independence of states meant that “no foreign power has a right to interfere.”164 The state had exclusive authority among not only those within its territory but also among those outside of it to represent and rule its people: It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights than can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.165

This was a clear articulation of the right of independent sovereign states to nonintervention. On the grounds of the liberty and independence of states, Vattel posited a “positive law of nations,” which proceeds from “the will of nations.” This positive law comprises the “voluntary law of nations,” which is natural law modified to apply to nations and relies on their “presumed consent,” as well as the express and tacit consent of nations found in treaties and in customs.166 Thus, while Vattel’s system was built on natural law, he is rightly understood as foreshadowing the positivist treatises that would be written in subsequent decades and that would tend to rest on the presumed freedom of states from external interference.167 Nevertheless, Vattel cannot be read simply as a champion of the supposed “traditional,” noninterventionist meaning of sovereignty. Despite his emphasis on the liberty and independence of states, his sovereign right of noninterference was not absolute. Vattel articulated this right in tension with an ongoing right of sovereigns to determine for themselves where they could justly wage war. He acknowledged that “war cannot be just on both sides.”168 However, building on earlier reasoning about the indeterminacy

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of just wars, he insisted that it was not for others to judge the justice of a state’s decision to wage war: “Since nations are equal and independent, and cannot claim a right of judgment over each other, it follows, that in every case susceptible of doubt, the arms of the two parties at war are to be accounted equally lawful.”169 A state was the sole judge of whether or not it had been injured by another and was free to decide for itself whether it had just cause for war. “Every free and sovereign State has a right to determine, according to the dictates of her own conscience, what her duties require of her, and what she can or cannot do with justice.”170 We will see that this sovereign right of war would not be clearly extinguished until as late as the first half of the twentieth century. Moreover, Vattel asserted a right of intervention to rescue the oppressed, thereby articulating the tension between the rule of nonintervention and the need to protect people from tyranny and persecution, a tension that has continued to exercise the minds of theorists and practitioners to the present day. He criticized Grotius for providing to every sovereign “an odd kind of right to punish faults which involve an enormous violation of the laws of nature,” since this right “opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts.”171 Following Pufendorf, he insisted that the right of punishment could only be claimed by sovereigns against those by whom they have been injured.172 And yet, as many others had done before him, he insisted that states did have a right to “succour an oppressed people who implore their assistance” in the case of civil war173 and to come to the aid of victims of intolerable religious persecution.174 “As to those monsters who, under the title of sovereigns, render themselves the scourges and horror of the human race,” he declared, “they are savage beasts, whom every brave man may justly exterminate from the face of the earth.”175 From its earliest articulation, then, the sovereign right of noninterference was held in tension with responsibilities to eschew tyranny and oppression. This tension would be a feature of the discussion of legitimate statehood as it traveled down the path of popular self-government over the next few decades, and it remains so today. h “Absolute sovereignty” is today a pejorative term that implies unlimited, unconditional, and irresponsible rule. However, this was not what its defenders believed themselves to be defending in the so-called age of absolutism. Sovereigns did not claim authority from God to treat their subjects as they wished. Sovereignty, granted by God, implied solemn responsibilities



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under him for which rulers would be held to account. Absolute authority was also understood to rest on mutual obligations between rulers and ruled. The protection of the safety of the people, for Hobbes, was the end for which the sovereign was trusted with authority, and the legitimacy of the sovereign was dependent upon its capacity to ensure this protection. Moreover, in relations between states, sovereignty did not simply imply a supposed “traditional” right to nonintervention. Rather, it implied a right to wage (just) war and it entailed enforceable obligations. It was widely agreed that a sovereign could be forcibly held to account by neighboring states for tyrannical and oppressive violations of the natural law, even if the subjects themselves could not rightfully resist their sovereign. An international society of states was emerging that willingly constructed not only rights but responsibilities of legitimate statehood, including demands for the protection of the rights of religious minorities. In both natural law and treaty law, then, sovereignty was understood to entail externally enforceable responsibilities for the protection of subjects. The sovereign right of nonintervention would not be clearly articulated until the mid-eighteenth century, and even then it was held in tension with the right to interfere to protect subjects from tyranny and oppression. From its first emergence in early modern Europe, then, sovereignty entailed responsibilities. Legitimate authority was grounded in and inseparable from various divine, moral, and juridical obligations. This was a very different world from that which would gradually emerge in the wake of the French and American Revolutions of the late eighteenth century. “Absolutist” justifications for sovereign authority would be replaced by “popular” legitimations, and, in turn, the rules of sovereignty would be radically altered. Yet, as the next chapter reveals, sovereign authority would continue to be limited by varied and evolving responsibilities.

chapter three

The Rise of Popular Sovereignty

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his chapter examines the gradual process by which the sovereignty of “the people” came to be established as the dominant principle of legitimacy in European international society in place of divinely ordained dynastic rule. It demonstrates that the ramifications of this process were not confined to changes in domestic legitimations of sovereignty. Rather, the emergence of popular sovereignty had a profound impact on international society’s own construction of the rules of sovereignty in the period from the late eighteenth to the early twentieth century. As ideas of government by popular consent emerged at the domestic level, sovereign peoples gradually instituted a transformation in the construction of sovereignty at the international level. A central claim of the chapter is that the concept of popular sovereignty entailed two potentially conflicting ideas. In the arguments of John Locke and Jean-Jacques Rousseau and the claims of the American and French revolutionaries, we find popular sovereignty to be clearly grounded in the protection of individual rights. The end of government was held to be the security of individual rights to life and liberty, and governments were accountable to the people for securing these rights. Yet at the same time, at least for Rousseau and the French revolutionaries, the sovereign people or nation was charged with pursuing its unified “general will,” conceivably to the detriment of individual liberties. In the wake of the French Revolution, the idea of popular sovereignty traveled down a nationalist path, and the rights of nations came to overshadow the rights of individuals. While the society of states initially resisted revolutionary principles of government by popular consent, it eventually confirmed national selfdetermination as a principle of international legitimacy, complemented by a tentative right of nations to freedom from external interference, at the 60



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end of the First World War. Nevertheless, the tensions between individual and national rights that were inherent in the idea of popular sovereignty remained, and they were now transferred to the international level. The right of nations to freedom from interference in matters of “domestic jurisdiction” was constructed in tension, at least to some degree, with an unsettled doctrine of “humanitarian intervention” and a weak international regime for the protection of national minority rights. The principles of nonintervention and human rights that would be established in clear tension with each other after 1945, then, find important antecedents in the contestation over the rules of sovereignty in this period. The discussion in this chapter is limited to developments in the rules of sovereignty that obtained within European international society. This is a very different story than that of the development of the rules of sovereignty that were imposed by Europe upon the non-European world in the same period, though the two are intimately related. The historical construction of these latter rules, grounded in a distinction between “civilized” Europeans and “uncivilized” others, is examined in chapter 4.

Popular Sovereignty This section explores the concept of popular sovereignty as expressed in the works of Locke and Rousseau and in the contexts of the American and French Revolutions. In each instance, the protection of individual rights and liberties was central to the idea of popular sovereignty. Sovereignty, it was argued, remained permanently in “the people,” and the people’s representatives were charged with the preservation of the “rights of man.” Those in authority were now not only responsible for the people but responsible to the people for their protection. However, in the arguments of Rousseau and the claims of the French revolutionaries, the responsibility to secure the rights of individuals was held in uneasy tension with the duty to observe the unified “general will” of “the people” or “the nation.” Sovereignty may have been grounded in individual rights, but responsibility for the protection of these rights competed with the rights and objectives of the nationstate. Thus we find within the idea of popular sovereignty itself an emergent tension between the rights of individuals and the rights of nations.

John Locke When the English parliamentarians of the 1640s spoke of the sovereignty of the people, like the “monarchomachs” before them, they almost always

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meant the sovereignty of the people’s representatives. As Julian Franklin observes, this led Parliament to embrace a contradiction. The parliamentarians were unwilling to deny that the king wielded a sphere of independent authority that Parliament could not legitimately assume, and yet they found that they needed to invoke the supremacy of Parliament against him in order to justify resistance. The solution offered by George Lawson and most famously developed by Locke was to locate ultimate sovereignty in the general community, a legal entity distinct from Parliament. In this way, they introduced a clear distinction between the constituent power of the people and the ordinary or legislative power of government.1 In clarifying this distinction, Locke developed a theory of popular sovereignty that would not only greatly influence the American revolutionaries of the following century but also contribute to a shift in the grounds of legitimate authority that would, over time, spread across the globe. Two Treatises of Government was most likely written during the ten years prior to the Glorious Revolution of 1688, though it was not published until 1690.2 As John Dunn suggests, it is a work “principally designed to assert a right of resistance to unjust authority, a right, in the last resort, of revolution.”3 It begins with a refutation of the patriarchal arguments of divine-right theorists, in particular Robert Filmer, who had found that some men should naturally be in authority over others. In place of these arguments, Locke posited a theory of popular sovereignty grounded in the rights of individuals according to natural law. He claimed that the natural state of man is a state of “perfect Freedom” and “Equality.” God, he argued, has not “by any manifest Declaration of his Will set one above another.” Rather, all are free of each other and equal to each other.4 He also insisted, as others had before him, that all men have a natural right to “Life, Health, Liberty, [and] Possessions.”5 In a state of nature every man is a judge in his own case with the authority to punish offenses against his natural rights.6 People choose to leave the state of nature and enter into civil society in order to restrain the violence of others, to protect and regulate their rights to property, to protect themselves against dangers from abroad, and because of their natural love and want of society.7 In doing so, they bind themselves together in a “body politic” that assumes the authority to punish offenses against the law of nature: individuals “enter into Society to make one People, one Body Politick under one Supreme Government . . . by setting up a Judge on Earth, with Authority to determine all the Controversies, and redress the Injuries, that may happen to any Member of the Commonwealth.”8 Equating absolute sovereignty with the possession of arbitrary authority, Locke insisted that absolute monarchy was clearly “inconsistent with Civil Society, and so can



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be no Form of Civil Government at all.”9 The government could not possibly be “absolutely Arbitrary over the Lives and Fortunes of the People. . . . For no Body can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power over himself, or over any other, to destroy his own Life, or take away the Life or Property of another.”10 Instead, Locke proposed that government was always held in trust for the people and derived its legitimacy from their consent. According to Locke, individuals contract with each other to create a society, but they are not contractually obliged to their government. Governors are merely trustees who can be removed if they fail in their trust. Governments are entrusted with authority for attaining the end of protecting the “safety and security” of the people, and that is the limit of their authority. If that end is neglected, government is dissolved, and authority devolves to the people, who may set up new trustees for government: Though in a Constituted Commonwealth . . . there can be but one Supream Power, which is the Legislative, to which all the rest are and must be subordinate, yet the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security.11

This idea of the residual power of the people to remove their governors and remodel their government comprised the heart of Locke’s theory of popular sovereignty.12 Governors are accountable to the people for the performance of their responsibilities. It is for the people, not the Parliament nor the monarch nor any other party, to decide whether and when their governors have breached their trust.13 If the governors resist such judgment, “the Appeal then lies no where but to Heaven,” and such an appeal is made through revolution.14

The American Revolution Locke’s theory of the dissolution of government was rejected by his Whig contemporaries, and the notion of the sovereignty of the Parliament continued to be accepted as orthodox in England.15 His work would have far

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greater influence across the Atlantic in the next century. While the major figures of the European Enlightenment such as Montesquieu, Voltaire, and Rousseau made a substantial contribution to the thought of the American revolutionaries, they were often superficially or incorrectly understood, and their influence was “neither clearly dominant nor wholly determinative.” The writings of John Locke and other seventeenth-century English liberals, on the other hand, were profoundly influential.16 Bernard Bailyn reports that “the central intellectual problem” that confronted the American colonists was how to respond to the English claim that its Parliament was sovereign over the American colonies.17 The voice of Locke in the answer that they gave is unmistakable. In 1776, the thirteen United States of America unanimously declared their independence with powerful and universalized claims. At the heart of their claim was the idea of individual rights.18 In the Declaration of Independence, the American colonists invoked what they perceived to be a “self-evident” truth, that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” They claimed that governments are instituted “to secure these rights” and that these governments derive “their just powers from the consent of the governed.” Moreover, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.” This was a declaration of popular sovereignty. A legitimate government, according to this conception, derived its powers from the consent of the people and was only legitimate so long as it secured the rights of all men. The debate about the possible inclusion of a bill of rights in the American Constitution at the Constitutional Convention in 1787 reveals even more clearly the centrality of inalienable individual rights to the American conception of popular sovereignty. The Antifederalists argued that the Constitution must include a bill of rights that would protect the people and place limits on what the people’s representatives could rightfully do. Unless there was a bill of rights, one argued, “we are totally insecure in all of them; and no man can promise himself with any degree of certainty . . . that they will be secured in the enjoyment of life, liberty and property without depending on the will and pleasure of their rulers.”19 The American Constitution, they argued, needed to be grounded in a declaration of the inalienable and fundamental rights of the people so that it would be clear when the government had acted beyond its authority. The Federalists replied that a bill of rights was something that a king conceded or contracted with his subjects.20 If the people were sovereign, then such provisions were



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not necessary, since the ruler and the people were one and the same. As one Federalist asked, “Why then should the people by a bill of rights convey or grant to themselves what was their own inherent and natural right?”21 The Constitution, another argued, “goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper.”22 A precise inventory of individual rights would be dangerous, since it might actually imply that “we had delegated to the general government a power to take away such of our rights as we had not enumerated.”23 In the Constitution’s preamble, they observed, it is “We the People” who convey particular powers to the national government. According to one Federalist, this opening phrase “is tantamount to a volume and contains the essence of all the bills of rights that have been or can be devised.”24 Whatever rights were not transferred to the government, the Federalists argued, the people retained for themselves. Of course, as powerful as the Federalist claims were, there was no contradiction between the notion that legislators only held their positions as trustees and the desire to enumerate the terms of the trust. Ultimately the support for a written declaration of the people’s liberties was too strong for the Federalist arguments to overcome, and such a bill of rights was passed as the first ten amendments to the Constitution.25 James Madison, who initially did not see the need for the enumeration of individual rights, allowed that the bill might serve the “double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty.”26 For the Americans, then, both Federalist and Antifederalist, the protection of individual rights was at the heart of the idea of popular sovereignty. Government was justified by the consent of the governed and entrusted with securing their rights. While the same may be said of the initial declarations of the French Revolution, the story of its course and legacy is not so simple. We first turn to the ideas of the thinker whom those revolutionaries claimed as “their prophet and patron,” Rousseau.27

Jean-Jacques Rousseau The political thought of the Enlightenment cannot be reduced to a single idea or even to one stream of theorizing. Loosely related intellectual movements developed ideas about concepts as opposed as national culture and cosmopolitanism. Nevertheless, it can be said that an underlying current of much Enlightenment thought undermined the legitimacy of the idea of divinely ordained absolute monarchy in Europe. Prevailing relationships between state, sovereign, and subjects were challenged and redefined in ways

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that would have a profound impact on both domestic and international politics. Rousseau published The Social Contract in 1762, in the later years of the Enlightenment. His radical theory of popular sovereignty had much in common with Locke’s earlier work. Both writers imagined a social contract that binds individuals together in a “body politic,” and both claimed that sovereignty was found in the people and could not be legitimately taken from them or contracted away. However, Rousseau’s particular emphasis on the notion of the “general will” as a unity of interests would have an important influence on how the sovereignty of “the people” would be conceived in the future, not least by the French revolutionaries. Rousseau, like Locke before him, refuted the patriarchal arguments made famous by writers such as Bodin and Filmer, and he likewise denied that Hobbes’s covenantal agreement justified the attribution of absolute authority to the monarch.28 He insisted that the paternal authority of the monarch could not be found in natural law, and he claimed that “it would always be absurd to say: ‘I hereby make a covenant with you which is wholly at your expense and wholly to my advantage; I will respect it so long as I please and you shall respect it so long as I wish.’ ”29 The “fundamental problem,” Rousseau suggested, was “how to find a form of association which will defend the person and goods of each member with the collective force of all, and under which each individual, while uniting himself with the others, obeys no one but himself, and remains as free as before.”30 The “form of association” that Rousseau suggested was a social contract in which individuals bind themselves together in a “body politic”: Finally, since each man gives himself to all, he gives himself to no one; and since there is no associate over whom he does not gain the same rights as others gain over him, each man recovers the equivalent of every­ thing he loses, and in the bargain, he acquires more power to preserve what he has. . . . The public person thus formed by the union of all other persons was once called the city, and is now known as the republic or the body politic. In its passive role it is called the state, when it plays an active role it is the sovereign; and when it is compared to others of its own kind, it is a power. Those who are associated in it take collectively the name of a people, and call themselves individually citizens, in that they share in the sovereign power, and subjects, in that they put themselves under the laws of the state.31

Rather than accepting the claims of Bodin, Hobbes, and other earlier thinkers that law was the command of the individual sovereign, Rousseau argued



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that law must be the product of agreements. He believed that “all justice comes from God, who alone is its source” but lamented that we do not know “how to receive it from that exalted fountain.” “There is undoubtedly a universal justice which springs from reason alone,” he acknowledged, “but if that justice is to be acknowledged as such it must be reciprocal.”32 The right to legislate, therefore, belongs only to the people, and the laws that they make must apply to all citizens equally: “Every act of sovereignty, that is, every authentic act of the general will, binds or favours all the citizens equally, so that the sovereign recognizes only the whole body of the nation and makes no distinction between any of the members who compose it.”33 This was a theory of the sovereignty of the people. For Rousseau, “any covenant which stipulated absolute dominion for one party and absolute obedience for the other would be illogical and nugatory.” Renouncing freedom or liberty through contract with a superior monarch is “to renounce one’s humanity, one’s rights as a man and equally one’s duties.”34 Freedom is to be found in obedience to the very law that one has prescribed.35 Sovereignty is not legitimately located in the office of the ruler, as Bodin had claimed, much less in the person of the ruler, as Louis XIV believed. Sovereignty is rightfully found in the people and cannot be alienated from them.36 Sovereignty is not legitimated on the grounds of divine ordination but through an agreement of the body politic. An act of sovereignty is not the act of a monarch but an act of the general will, “not a covenant between a superior and an inferior, but a covenant of the body with each of its members.”37 Hobbes’s “artificial man” was now to be found in the “body politic.” Like Locke’s, Rousseau’s theory of popular sovereignty was grounded in individual rights and liberties. However, for Rousseau, the “rights of man” were held in tension with the demands of the general will. Whereas “the people,” for Locke, was essentially a collection of rights-bearing individuals, Rousseau’s “people” was a unified body, whose general will expressed the common good. Rousseau declared that the will of the sovereign people “is always rightful and always tends to the public good.”38 And the sovereign will is absolute: “As nature gives each man an absolute power over his own limbs, the social pact gives the body politic an absolute power over all its members.”39 Consequently, as Charles Merriam observes, “No rights are reserved to the individual.”40 Since the general will cannot be bound, the body politic cannot guarantee rights for an individual any more than it can surrender its own rights to a ruler.41 After all, Rousseau claimed, “It would be against the very nature of a political body for the sovereign to set over itself a law which it could not infringe.”42 Individuals entering into Rousseau’s

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civil society, therefore, trade their “natural liberty, which has no limit but the physical power of the individual concerned,” for “civil liberty, which is limited by the general will.”43 However, Rousseau also insisted that the right given in the social contract to the body politic over individual subjects does not exceed “the boundaries of public utility.”44 And he quoted approvingly the Marquis d’Argenson, who declared, “In the Republic, each individual is perfectly free to do what does not injure others.”45 At the heart of Rousseau’s work was a desire to secure for the individual his own liberty protected by the general will and its laws. The artifice that was the general will was designed to make liberty possible.46 However, whether or not Rousseau foresaw them, the course of the French Revolution would reveal some of the possible pernicious effects of this device on individual freedom.

The French Revolution By the middle of the eighteenth century, European rulers had begun to embrace the Hobbesian idea of the sovereign state as an entity independent of the monarch, and they had not been unaffected by Enlightenment ideas about the relationship between rulers and subjects. “Enlightened absolutists” such as Frederick the Great of Prussia and Joseph II of Austria engaged with philosophes and implemented reforms in response to changing conceptions of legitimate government. The idea that a monarch should treat his subjects in accordance with divine laws was gradually replaced by a belief in the contractual relationship between sovereign and subject, and some rulers began to consider themselves as the first servants of the state rather than its proprietors.47 Real reforms regarding individual rights to freedom of expression and worship were implemented alongside improvements in public welfare in fields such as education and health in some states.48 Nevertheless, these were still reforms imposed from above. As Julian Swann observes, if certain enlightened absolutists “were prepared to concede that there was an original contract between the sovereign and his subjects, it was not one that permitted subsequent discussion of its terms.”49 These absolute monarchs ignored as best they could Rousseau’s challenge that legitimate sovereignty lay with the people, and not without some success. Moreover, the reforms of enlightened absolutists were patchy across Europe. Dynastic principles of rule and command-based principles of law continued to guide many monarchs. Louis XVI, for example, willingly repeated the earlier refrain that “the sovereign power of the kingdom belongs to the king alone. . . . He is accountable only to God for the exercise of his supreme power.”50 In France, the Enlightenment facilitated an alliance between the enlightened nobility



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and the bourgeoisie against the monarchy. This weakened the monarchy and paved the way for revolution.51 Shortly after the French Revolution began in 1789, the National Assembly of France approved the Declaration of the Rights of Man and Citizen. Echoing the claims made by the United States, the French envisaged an intimate connection between the sovereignty of “the people,” or in their case “the nation,” and the protection of “the rights of man.” They declared that “all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.” And the sovereign nation bore a responsibility to protect individual rights. “The aim of all political association,” they claimed, “is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.” The nation was sovereign, and its authority was grounded in the guarantee of individual rights. However, in contrast to the Americans, the French emphasized the rights of the nation more than the rights of the individuals who made up the nation as the basis for political legitimacy. The idea of “the nation” had emerged through the eighteenth century, in the thought of Rousseau and others, as a source of authority that challenged the “self-referential and self-justifying quality of monarchical rule.”52 The National Assembly adopted the idea of “the nation” as its central legitimating platform and successfully claimed to be its authoritative voice. The idea of popular sovereignty thus became closely tied to the idea of the self-governing nation both in political rhetoric and in the popular imagination.53 Moreover, the particular understanding of national self-government that emerged victorious out of the Revolution relied upon a radical interpretation of Rousseau’s notion of the “general will” rather than the individualism of thinkers like Locke who had directed the Americans. As mistrust of the monarchy and vilification of the moderate enlightened aristocracy increased in the first few years of the Revolution, a radical model of the general will as a unity of interests trumped more moderate and classical republican conceptions, which held it to be a representation of a plurality of interests. The undivided will of the nation became the basis for the legitimate sovereign act.54 For a politically unstable France, this understanding of the general will meant little toleration of opposition parties or factions. It led to the execution of King Louis XVI, who was indicted essentially for crimes against the sovereign nation: You attacked the sovereignty of the people . . . you wished to dictate laws to the nation . . . you persisted in your designs against national liberty. . . . In orgies held before your very eyes you permitted the national

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cockade to be trampled under foot, the white cockade to be raised, and the nation blasphemed.55

The monarch who was once understood to have a divinely ordained right to rule was now charged with blaspheming against the deity that was “the nation.” The obsession with the unity of the French nation also gradually eroded concern for individual rights and liberties. Emphasis on the political imperative of national cohesion undermined the very freedoms the Revolution purported to protect. In 1790, one critic of the Revolution lamented: “In every town, in every village, we find the nation exercising all the rights of sovereignty, which at times obtains for us rather ferocious sovereigns.” Another concurred two years later: “The good of the people is the supreme law: a perfectly vague maxim, and, by that alone, a perfectly tyrannical one.”56 In 1793, William Pitt (the Younger) charged that the principle of national sovereignty had been employed by the revolutionaries to sanction the abuse of individual freedoms: “It is a species of tyranny, which adds insult to the wretchedness of its subjects, by styling its own arbitrary decrees the voice of the people, and sanctioning its acts of oppression and cruelty under the pretence of the national will.”57 Employing a phrase of Robespierre, Istvan Hont summarizes: “Royal despotism gave way to the ‘despotism of liberty,’ and the Jacobins committed themselves to a heavily moralized political variant of ethnic cleansing.”58 The ideals of the French Revolution were proclaimed to be universal, and they had universal repercussions.59 As Mlada Bukovansky suggests, the Revolution constituted “a material and ideological assault on old regime legitimacy both internally and internationally. . . . The revolutionary French characterized enemies at home and abroad in the same way: as aristocratic, privileged enemies of the French nation and of the universal principles of human nature and liberty which that nation now represented.”60 The revolutionaries’ conception of sovereignty directly challenged the principles of legitimate statehood that prevailed within the international system. The authority of all European monarchs was considered to be illegitimate, and the treaties and agreements that they had once made with ancien régime France were now invalid. In 1790, with respect to the legal status of Alsace, which had been previously decided at Westphalia in 1648, it was declared in the National Assembly: “Treaties made without the consent of the people of Alsace could not bestow legality on rights to which they had not given their consent. . . . In short, it is not the treaties of princes which regulate the rights of nations.”61 This paved the way for early expressions of the principle of national self-determination. Regarding Avignon, which had been



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ruled directly by the pope, it was declared: “The papacy may not retain Avignon against the wishes of the people. Avignon no longer belongs to the Pope because its people no longer wish to have him as their ruler. . . . Avignon belongs to France because the Avignonnais wish to be French.”62 The universalized conception of popular sovereignty that guided the revolutionaries demanded an end to dynastic rule not only in France but across all of Europe. Political authority was said to be legitimate only if it was wielded with the consent of the people. Seeking to enforce this principle, the revolutionary state abandoned earlier constraints on war and, as Bukovansky suggests, transformed the image of Europe “from a society of dynastic states to something more like a state of nature.”63 Announced on November 19, 1792, the National Assembly’s Edict of Fraternity promised “fraternity and aid to all peoples who wish to recover their liberty.”64 In December, a document was dispatched to all revolutionary generals, who were to fill in a blank space with the name of any nation that they liberated. The document stated: “Henceforth the French nation proclaims the sovereignty of all people of . . . You are henceforth, brothers and friends, all equal in rights, and all equally summoned to govern, to serve and to defend your Patrie.”65 However, wars of liberation over time gave way to wars of conquest.66 In 1790, the National Assembly had declared that “the French nation renounces the undertaking of any war with a view to making conquests, and that it will never use its power against the liberty of any other people.”67 However, out of the Revolution had emerged a violently nationalist understanding of the purposes of the French state, and the principles of popular sovereignty were soon channeled toward nationalist ends in the revolutionary and Napoleonic Wars. Through the nation, the French believed, the general will of the people could be gloriously expressed. And if France represented the totality of the French people, it was argued, then these people each had an equal responsibility to support and defend France. Universal conscription, therefore, seemed to be a logical corollary of popular sovereignty. Through the introduction of the levée en masse in 1793, the liberated French state achieved an enormous mobilization of forces and a correspondent massive increase in its military power. Military successes further served to entrench the belief of the French in the general will of la grande nation. While he may have perverted the revolutionary ideals of liberty and equality, Napoleon tapped into this nationalistic fervor, and his military successes provided Europe with a model of “nationalism wedded to the state” that demanded imitation.68 French imperialism bred hostility and resentment among European populations, but it did not lead them to reject the idea of national self-rule. Rather, European peoples increasingly

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embraced their own national identities and clamored for self-government, and their rulers increasingly realized the necessity of satisfying their populations’ demands, at least to a degree, in order to harness the potential power of “the nation.” The idea of popular sovereignty thus traveled down a nationalist path.69 As Wight suggests, “The imperialism of the French Revolutionaries and Napoleon drove popular politics into the channels of nationality; the rights of men gave way to the rights of nations.”70 Eventually the revolutionary and hegemonic ambitions of France were subdued. In April 1814, after twenty-two years of revolutionary and Napoleonic Wars in Europe, in which France was at peace for less than one year, an alliance of European armies forced Napoleon to abdicate and placed Louis XVIII on the French throne. However, the old order could never be fully restored, either in France or in Europe more broadly. While it had over time become increasingly authoritarian at home and imperialist abroad, the revolutionary regime had continued to be legitimized by the principle of popular sovereignty, and this principle would be an enduring legacy.71 Rather than immediately and completely altering the legitimizing principles of sovereignty, the French Revolution initiated a struggle for legitimate modes of authority both within and between states across Europe that would continue beyond the nineteenth century. Earlier notions of dynastic legitimacy now contended with new ideas of popular legitimacy. After the French Revolution, the struggle for popular sovereignty within Europe would be increasingly expressed as a struggle for national selfdetermination. The American and French revolutionaries had placed the liberty and equality of individuals at the heart of their justifications for popular sovereignty. Yet it was the right of nations to govern themselves, not the rights of the individuals within these nations, that would come to dominate the understanding of the sovereignty of “the people” in nineteenth- and early twentieth-century Europe. This would have profound consequences for the construction of sovereign responsibilities by international society. Not until the mid-twentieth century would it become clear that a conception of popular sovereignty that exalts the nation above the individual is a problematic philosophy that frequently fails to advance or protect individual liberty and equality.

Legitimate Statehood and Nonintervention after the French Revolution But we are getting ahead of ourselves. The end of the Napoleonic Wars saw a backlash against revolutionary principles of popular rule and the establish-



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ment of a conservative “monarchical principle,” along with a program of intervention to enforce this principle, by the Great Powers in an attempt to restore stability to Europe. These interventions to uphold monarchical rule tended to be framed as legitimate exceptions to a principle of nonintervention that had been increasingly accepted as a right of sovereignty since being articulated by Vattel in the mid-eighteenth century. Through the course of the nineteenth century, this right of nonintervention was gradually consolidated as a legal rule, and Great Power intervention in defense of monarchs eventually gave way to the idea that nations have a right to manage their own affairs and determine their own political institutions, free from outside interference. Nevertheless, the sovereign right of nonintervention continued to be understood to be limited by numerous exceptions, including the right of “intervention for humanity,” as well as a lingering assumption that it remained for the sovereign to judge when and where it had just cause for war. It is difficult to draw firm conclusions about the consensus within international society on the principle of nonintervention or its various exceptions during the period between Vienna and Versailles. As one observer put it at the beginning of the twentieth century, “The relation of intervention to international law and even the rules governing the practice are still in an extremely unsettled state.”72 Yet it is possible to observe an emerging tension between a presumed right of nonintervention and a tentative right of international enforcement of the sovereign responsibility to secure the safety of the people. It is to these developments that I now turn.

The “Monarchical Principle” and the Metternich System Just as the French revolutionaries had drawn a connection between domestic legitimations of authority and international legitimacy, so too had early conservative opponents of the French Revolution such as British politician and writer Edmund Burke. While the British government had struggled to decide how it should respond to the events of 1789 before the French began to engage in acts of international aggression, Burke had maintained from the outset that revolutionary France was a threat to international order. A stable international order, he insisted, was dependent upon the preservation of the principles of legitimate statehood that prevailed within international society.73 For Burke, the Revolution represented a potent cultural challenge to the legitimacy of monarchical rule that threatened to spread throughout Europe. The doctrine of the Revolution, he claimed, “violates the rights upon which not only the community of France, but those on which all communities are founded.” Consequently, “by the very condition

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of its existence,” France, despite not yet having threatened Britain, “is in a state of hostility with us, and with all civilized people.”74 Burke therefore advocated preventive intervention against the social and political threat posed by France.75 He criticized the sovereigns of Europe who had “very much injured their cause by admitting that they had nothing to do with the interiour arrangements of France” and insisted that the posited doctrine of noninterference was “in contradiction with the whole tenour of the public Law of Europe, and the correspondent practice of all its states.”76 Rather than a violation of international order, Burke considered intervention a condition of it.77 A similarly conservative principle of legitimate statehood was agreed upon by the European society of states when they met at the Congress of Vienna in 1815 to construct a new international order after the Napoleonic Wars. Two decades of war had given the Great Powers reason to believe that the forces of liberalism and nationalism were aggressive and expansive, and they now sought to restore stability to the international system by repudiating the rights of revolution and conquest and constructing a new principle of international legitimacy. Seeking to reinstate France as one of the Great Powers, French foreign minister Talleyrand appealed to the fact that the war against Napoleon had been fought at least in part as a defense of the principle of monarchical right, and he successfully argued that this monarchical principle should now be established as the sole basis for legitimate statehood. “The first need of Europe,” he insisted, “is to banish forever the opinion that right can be acquired by conquest alone, and to cause the revival of that sacred principle of legitimacy from which all order and stability spring.”78 The Great Powers of Europe—Britain, Russia, Austria, Prussia, and a restored France—therefore sought to construct a “just equilibrium” in Europe by moderating the balance of power with the principle of monarchical legitimacy.79 Thus the legitimacy of the mode of governance within states became a requirement for international recognition. At Utrecht in 1713–14, the society of states had revealed a willingness to confer or withhold recognition according to balance-of-power principles.80 Now they were willing to do so according to the internal authority structures of states. In the words of Ian Clark, domestic legitimacy became “a function of international legitimacy.”81 The congress system established at Vienna secured peaceful relations between European states for several decades, from 1815 to the Crimean War of 1854–56. However, in these years, numerous domestic revolutionary explosions threatened the prevailing orders within many European states, including some of the Great Powers. The stability of states was threatened



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by struggles between educated, professional, and commercial classes, who advocated liberal change, and conservative ruling classes, who were unwilling to reform. Liberals campaigned to free individuals from the excessive control of governments, to obtain a representative role in politics, and to secure fundamental liberties for citizens such as freedom of association and expression. Moreover, the argument that a Europe based on national lines would be healthier and more peaceful than one in which individuals were forced to live under alien rule was preached by nationalist revolutionaries such as Italy’s Giuseppe Mazzini. In 1820, 1830, and 1848, Europeans revolted against domestic orders and attempted to establish popular sovereignty on both liberal and national grounds. The two decades of war prior to 1815 had made it clear to the Great Powers that the internal politics of states could represent a grave threat to international order. After the Congress of Vienna, therefore, some of these powers took it upon themselves to enforce conformity to the monarchical principle so as to ensure the stability of Europe. As Martha Finnemore observes, it was really here that the modern notion of “intervention” was constructed as a technique for dealing with threats emanating within states. Conquest or annexation in response to such threats could disturb the equilibrium that had been carefully constructed at Vienna. As Finnemore summarized, “Military intervention to influence or alter domestic governing arrangements, leaving boundaries intact, provided a potential solution to the problem of internal threats and still respected the fundamental rules and norms of the systemic order.”82 Against the emerging principle of nonintervention, the “Holy Alliance” of Austria, Prussia, and Russia advanced a right of intervention to prevent or defeat revolution throughout Europe. Revolution was framed as an “illegal” tool for enacting political change, and intervention to suppress revolution was held to be not only permissible but necessary to preserve the new international order.83 Austrian chancellor Metternich, who positioned himself as custodian of the principle of monarchical legitimacy, argued that when a government can no longer meet its treaty obligations because of domestic social unrest, “the right to intervene belongs as clearly and indisputably to every government which finds itself in danger of being drawn into the revolutionary maelstrom, as it does to any individual who must put out a fire in his neighbor’s house if it is not to spread to its own.”84 The Holy Alliance intervened to support endangered monarchs in Naples, Piedmont, and Spain in 1820–21. Metternich justified the program of intervention on the grounds that revolution could not be tolerated: “Useful or necessary changes in the governments of states must emanate only from

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the free will and the thoughtful and enlightened initiative of those whom God has made responsible for power.”85 At first, the alliance spoke of acting to suppress “erring peoples” who revolted against their kings. They soon adjusted their argument and, employing the language of liberty, suggested that they were acting to protect peoples whose liberty had been taken away by criminals within the body politic. Following the suppression of a revolt in Piedmont by Austrian armies in 1821, for example, the Holy Alliance declared that they had come “to the assistance of a subdued Peoples, and they considered it as coming in support of their liberty, and not as an attack against their independence . . . the object of that policy will always be the preservation of the Independence and of the rights of each State.”86 Thus, cloaked in the language of liberty, the Metternich system enforced what Burke had earlier insisted, which was that states had a right, indeed a duty, to forcibly intervene in other states when revolutionary events threatened the peace and stability of Europe.

The Principle of Nonintervention In their 1793 constitution, which failed to pass the National Convention, the self-governing French revolutionaries had proclaimed a principle of reciprocal noninterference. The French people, they declared, “do not interfere in the domestic affairs of other nations and will not tolerate interference by other nations in their affairs.”87 This principle was offered as an attempted shield against the forces of ancien régime Europe at a time when France’s armies were particularly weak, and it appeared in the constitution alongside the Edict of Fraternity without any explanation for their apparent inconsistency.88 The truth of this decree of nonintervention was of course subsequently belied by the revolutionary and Napoleonic Wars. In the nineteenth century, the principle of nonintervention was taken up, and expressed in increasingly liberal terms, by successive British foreign secretaries Castlereagh, Canning, and Palmerston. Britain was deeply skeptical about the generalized program of intervention being developed by the three Holy Alliance states but was a member of the broader Quadruple Alliance alongside these states, an alliance of great powers that sought to maintain balance and stability in Europe. In an influential state paper of May 5, 1820, Lord Castlereagh laid out Britain’s position on the question of intervention.89 Castlereagh was certainly concerned about the revolutionary forces that threatened to undermine the stability of Europe. “There can be no doubt,” he wrote, “of the general danger which menaces more or less the stability of all existing Governments, from the



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Principles which are afloat, and from the circumstances that so many States of Europe are now employed in the difficult task of casting anew their Governments upon the Representative Principle.” However, he was wary of the idea of a system of intervention to suppress these forces for change: “The notion of revising, limiting, or regulating the course of such experiments, either by Foreign Council or by Foreign Force, would be as dangerous to avow, as it would be impossible to execute.” To be sure, revolution within one state may in a particular instance pose a threat to the safety of other states, “and against such a danger, well ascertained, the Allies may justifiably, and must in all prudence, be on their guard.”90 But the notion of a generalized “system” of intervention was “utterly impracticable and objectionable.”91 There were strategic considerations at play for Britain. Castlereagh feared the expansionist intentions of those states intervening to suppress revolutions, especially Russia. Concerted interventionism, he had observed two years earlier, would give Russia “an almost irresistible claim to march through the territories of all the Confederate States to the most distant points of Europe to fulfill her guarantee [to defend monarchical legitimacy].”92 But prudential and moral considerations were also claimed to be central: “The principle of one state interfering by force in the internal affairs of another, in order to enforce obedience to the governing authority,” he insisted, “is always a question of the greatest possible moral as well as political delicacy.”93 The congress system had been painstakingly constructed to restore stability to Europe after the Napoleonic Wars, and nothing was more likely to impair the effectiveness of the alliance of great powers than an “attempt to push its duties and its obligations beyond the Sphere which its original conception and understood Principles will warrant.”94 The alliance, he stressed, was never “intended as an Union for the Government of the World, or the Superintendence of the Internal Affairs of other States.”95 Rather, the goals of the alliance needed to remain within the limits of “common Sense” so that the representative government of Britain might find “a common Interest” with the three monarchical governments in maintaining European stability without having to sacrifice its principles of popular self-rule.96 Britain recognized the dangers posed by the forces of popular revolution in Europe, Castlereagh insisted, but she could not accept a system that denied in all instances the right of people to replace their government, just as England had done in the Glorious Revolution: Upon all Cases we must admit ourselves to be, and our Allies should in fairness understand that we are, a Power that must take our Principle of action, and our Scale of acting, not merely from the Expediency

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of the Case, but from those Maxims, which a System of Government strongly popular, and national in its character, has irresistibly imposed upon us.97

Eventually, as Castlereagh warned, the Metternich system proved impracticable. Constant discussion of proposals for intervention cracked the unity of the continental powers.98 The looser association of the great powers continued to exist with a more limited goal of dealing with problems as they arose rather than seeking to anticipate them or to crush them out of existence. Nevertheless, intervention in support of monarchy soon came to an end. A principle of nonintervention emerged in British foreign policy, which was increasingly grounded in the broad principle of self-government to which Castlereagh had alluded. This principle held that peoples should be allowed to determine their own internal political arrangements, whether or not this meant popular political institutions. R. J. Vincent observes that, whereas nonintervention was first promoted by Castlereagh in order to restrain the conduct of a conservative alliance of great powers of which Britain was a member, it was later upheld by Palmerston in order to define the outer limits of permissible British conduct as a champion of liberal and national ideals.99 Palmerston insisted that interference that consisted merely of “friendly advice” in support of liberalism was permissible, since it was consistent with the independence of states, but “armed intervention” was not.100 In 1830, he declared in Parliament, “Every nation has a right to manage its own internal affairs as it pleases, so long as it injures not its neighbors.”101 Vincent insists that this principle did not mean that Britain “would refrain from intervention if pressing imperatives like the maintenance of the balance of power required it; what it did mean was that she could admit intervention only as an exception not as a rule of conduct.”102 The principle of nonintervention, first articulated in the mid-eighteenth century, was now becoming increasingly accepted, at least by Britain, as a reflection of the liberty of nations to govern themselves and determine their own political institutions. The self-rule aspect of popular sovereignty was thus beginning to be applied to the external rules of sovereignty. A classic expression of this principle of nonintervention was offered by John Stuart Mill in his essay “A Few Words on Non-Intervention.” Writing in 1859, Mill dismissed the question of intervention to suppress popular revolution as hardly even worth discussing.103 The tide, at least in Britain, had by now turned clearly in favor of popular rule. Of greater concern to Mill was the permissibility of intervention in support of peoples struggling for liberty. He rejected this justification for intervention on the grounds



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that the only test of a peoples’ fitness for popular institutions was whether they were willing “to brave labour and danger for their liberation.”104 If a people “have not sufficient love of liberty to be able to wrest it from merely domestic oppressors,” he insisted, “the liberty which is bestowed upon them by other hands than their own, will have nothing real, nothing permanent.”105 This was, in a sense, the opposite conclusion to that drawn by Bodin almost three centuries earlier. Bodin, it will be remembered, insisted that subjects had no right to resist a tyrannical monarch but allowed that a neighboring prince could intervene to free them from oppression.106 Mill now accepted the right of peoples to resist and to overthrow their “domestic oppressors” but insisted that neighboring states should not assist them in this endeavor.107 What was emerging was very much a new conception of sovereignty and accountability. Whereas sovereign monarchs were once held to be answerable not to their subjects but to God and to neighboring princes, the sovereign “people” and those in government over them were now increasingly understood to be answerable only to themselves (though, as discussed in chapter 4, this principle was understood to apply not universally but only to European and other “civilized” peoples). This principle of nonintervention had also been gradually consolidated as a right of sovereignty in international legal commentaries since Vattel penned his Law of Nations. Positivist international lawyers through the nineteenth century variously derived the principle from the supposed natural liberty, independence, and equality of states and the natural right of self-preservation. (Despite their supposed positivism, they only rarely and with great difficulty sought to derive the principle from the actual practice of states.) However, as Vattel had done, they continued to offer numerous permissible exceptions to the principle, and they commonly admitted the necessary imprecision of the principle given the inconsistencies of state practice and the widespread acceptance of a right of sovereign states to determine for themselves what actions were necessary for their own selfpreservation.108 Consider the following sample of legal scholars: In the late eighteenth century, G. F. von Martens followed Vattel in asserting the “natural liberty and equality” of states and insisting that foreign nations had “not the least right to interfere in arrangements which are purely domestic.”109 However, he conceded that the permissible exceptions to this principle of noninterference had been “so extended by the practice of European nations” that foreign powers could always find some pretext to involve themselves in the internal affairs of states if they wished, “without looking upon their interference as a violation of the law of nations.”110 In the mid-nineteenth century,

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Robert Phillimore wrote of a “general principle” prohibiting intervention, but insisted it was subject to the higher imperative of self-preservation: “The Right of Self-Defence incident to every State,” he claimed, “may in certain circumstances carry with it the necessity of intervening in the relations, and, to a certain extent, of controlling the conduct of other States; and this where the interest of the intervener is not immediately and directly, but mediately and indirectly, affected.”111 Theodore Woolsey claimed that sovereign independence implied that “no other state shall have any just cause to impede or interfere with its unfettered action,” and he argued that the rule of noninterference was “an established principle.”112 However, he admitted that interference could be justified as an extreme measure where demanded by self-preservation or by “the crime of a government against its subjects.” Moreover, he acknowledged that there was “considerable difficulty” determining when interference was lawful, since it was a matter of “subjective opinion,” and he accepted that sovereign independence meant that “it is officious and impossible for nations to sit as judges over each other’s conduct.”113 In the late nineteenth century, T. J. Lawrence likewise argued that the right of nonintervention was an acknowledged principle of international law that naturally followed from sovereign independence, even if it could not be derived from the actual practice of states.114 But he, too, accepted that there were numerous exceptions to this right and argued that the assertion of a doctrine of absolute nonintervention would be “foolish” and “fatal to the idea of a family of nations.”115 William Edward Hall similarly asserted that the right of nonintervention was the “general rule,” while insisting that it could be disregarded if respect for it was inconsistent with “due satisfaction” of a “superior right” such as self-preservation, opposition to wrongdoing, or the demands of treaties and friendship. Intervention was deemed legal if the intervening state could demonstrate that its action was sanctioned by one of these principles that took precedence over nonintervention.116 An early American international legal scholar, Henry Wheaton, suggested that it was “impossible to lay down an absolute rule” on the subject of nonintervention, “and every rule that wants that quality must necessarily be vague, and subject to the abuses to which human passions will give rise, in its practical application.”117 But he nevertheless offered: “Non-interference is the general rule, to which cases of justifiable interference form exceptions limited by the necessity of each particular case.”118 In short, while they could not necessarily establish it from state practice, commentators were in agreement that the sovereign right of non­ interference was a “general principle” or “general rule” of international law.



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Whereas seventeenth-century theorists emphasized the sovereign right of (just) war, nineteenth-century theorists now emphasized nonintervention as a basic right derived from the independence of sovereign states. Yet they also considered it to be limited by numerous exceptions, including intervention for self-preservation, to preserve the balance of power, to uphold treaties, to support just belligerents in a civil war, to counter aggression, and to oppose wrongdoing.119 Significantly for the present study, a further exception that was widely embraced was intervention to protect “humanity” and to prevent religious persecution.

Humanitarian Intervention Nineteenth-century commentators typically drew on the precedents of the repeated interventions by European powers in the Ottoman Empire in response to the persecution of Christians, beginning with the rescue of Greek nationalists in 1827–30, to support their claim that a customary norm of “humanitarian intervention” had been established in international law. Indeed, even Mill, writing ten years before his essay on nonintervention, drew on these precedents and concluded, “It is too late in the day . . . to tell us that nations may not forcibly interfere with one another for the sole purpose of stopping mischief and benefiting humanity.”120 These cases should not be too quickly read as demonstrating a generalized right of humanitarian intervention within Europe given the “anomalous” position of the Ottoman Empire with respect to the European society of states.121 The actual practice of nineteenth-century humanitarian intervention is properly discussed in the context of “civilized” European international society’s relations with the “uncivilized” non-European world, and is thus taken up in the following chapter. However, even if humanitarian intervention was not in fact practiced within Europe in this period, it was widely agreed that such intervention was legally permissible. The interventions in Ottoman territories were at least in part motivated by liberal sensibilities emerging within Europe regarding duties to humanity that transcended sovereign boundaries, and it was perhaps the force of this liberal sentiment, rather than the particular weight of the precedents, that led legal theorists to argue for the general permissibility of humanitarian intervention.122 To be sure, some commentators denied that “intervention for humanity” was an accepted principle of international law. Phillimore, for example, insisted that “the general interests of humanity” could be offered as an “accessory” justification for intervention, but it could not be admitted as a “substantive and solitary justification . . . since it is manifestly open to abuses,

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tending to the violation and destruction of the vital principles” of international law (he did, however, defend the legality of intervention in response to religious persecution).123 Lawrence similarly insisted that interventions undertaken to protect humanity or to end religious persecution did not fall “within the ordinary rules of International Law,” since the cruelty of a government did not render it liable to be deprived of its freedom of action. However, he accepted that international law “will not condemn such interventions if they are undertaken with a single eye to the object in view and without ulterior considerations of self-interest and ambition.” Should an opportunity arise to bring to an end cruelty “so long continued and so revolting . . . , there is nothing in the law of nations which will condemn as a wrong-doer the state which steps forward and undertakes the necessary intervention.”124 Other scholars expressed their wariness about the advisability of the doctrine. Hall, for example, recognized that “intervention for the purpose of checking gross tyranny . . . is very commonly regarded without disfavor” but warned against weakening the cardinal principle of nonintervention and suggested that such intervention should not be considered legal “unless the whole body of civilized states have concurred in authorizing it.”125 However, through the second half of the nineteenth century, building on the influential arguments of numerous early modern theorists who had defended the use of force to punish tyranny and rescue the oppressed, as well as the recent practices of European states in Ottoman affairs, legal theorists were commonly willing to accept the lawfulness of intervention in defense of humanity.126 Wheaton strongly endorsed interference, “not only where the interests and safety of other powers are immediately affected by the internal transactions of a particular State, but where the general interests of humanity are infringed by the excesses of a barbarous and despotic government.”127 Woolsey explicitly rejected Grotius’s expansive right of punishment, warning that such a doctrine would “lead to universal war.” But he insisted that “extreme cases of outrage may be conceived of, where a burning desire to help the weak abroad, or to punish the oppressor, ought hardly to be disobeyed.”128 Commentators variously justified such intervention as a rightful response to a breach of “the fundamental rights of humanity,” the “natural laws of the society of States,” or simply “international law.”129 “For, however worthy of respect the rights of sovereignty and independence of States may be,” E. R. N. Arntz insisted, “there is something even more worthy of respect, namely the law of humanity, or of human society, that must not be violated.”130 “In the period immediately preceding the First World War,” one observer concludes, “it seems that the majority of writ-



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ers had been won to the idea of the legality of humanitarian intervention,” and most scholars who continued to reject the doctrine did so on the basis of doubts over whether it had been integrated into the accepted body of customary international law rather than their own convictions about an illimitable principle of nonintervention.131 Soon after the end of the First World War, Ellery Stowell drew on those “weighty authorities” who had argued in favor of humanitarian intervention over the previous few decades and offered a particularly detailed defense of intervention as a justifiable response to violations of “the universally recognized principles of decency and humanity.”132 In language that would be echoed in concepts of “sovereignty as responsibility” and the “responsibility to protect” in the late twentieth and early twenty-first centuries, Stowell clearly grounded his argument in the notion that sovereignty entailed responsibilities. “In international law,” he declared, “rights are always correlative with duties, and no state can expect to retain the right of sovereign decision, called independence, when by its conduct it makes clear that it cannot fulfill the international law obligations of an independent and sovereign state.”133 Accordingly, When a state ignores its obligations, be it in even an isolated instance, it is liable to encounter the interposition of the state it has wronged, or the intervention of other states who perceive that such conduct constitutes an assault upon the principles sacred to them all, and necessary to the preservation of international society.134

Finally, the sovereign right to nonintervention was not merely perceived to be limited by numerous exceptions such as “intervention for humanity.” Its legal force was also understood to be limited, somewhat paradoxically, by the fundamental rights of sovereignty. As noted earlier, the emphasis on the liberty, independence, and right of self-preservation possessed by sovereigns led several scholars to deny that states could be judged for intervening in each other’s affairs. Just as Vattel and others before him had done, these scholars insisted that it remained for states to determine for themselves the instances in which they could rightly interfere in the affairs of other states, even to the point of conquest.135 Put simply, despite the emergence of the principle of nonintervention, the right to wage war continued to be understood, at least by some scholars and certainly by states, as an essential attribute of sovereignty. In Ian Brownlie’s authoritative view, state practice between 1815 and 1914 “was still dominated by an unrestricted right of war and the recognition of conquests, qualified by the political system of the

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European Concert.”136 He suggests that “the prevailing view was that resort to war was an attribute of statehood and it was accepted that conquest produced title.”137 As Simon Chesterman observes, the distinction between intervention and war was not entirely clear. Consequently, “any regulation of the former could be circumvented by resort to the latter.”138 This lingering right of sovereigns to wage war clearly conflicted with the “general rule” of nonintervention. The situation would be clarified to a certain extent after the First World War. Yet, as we shall see, nonintervention was not firmly established as a sacrosanct and unconditional principle of international law until 1945. What conclusions can we draw from the preceding discussion? It should be clear that the right of nonintervention was not considered an unconditional corollary of sovereignty in this period. Such a right was understood to be limited by numerous exceptions and contradicted by an enduring assumption, at least in some quarters, that sovereign states possessed a right to war. Of most interest for the present study is the particular tension between the “general rule” of nonintervention and the widely embraced doctrine of humanitarian intervention. The strains between these two ideas can be understood as the international expression of a tension inherent in the concept of popular sovereignty. The tension that could be found in Rousseau’s conception of popular sovereignty (between the rights of “the people” and the rights of individuals) was now beginning to be expressed at the international level (between the rights of nations to govern themselves free from outside interference and the rights of individuals to have their “fundamental rights of humanity” secured). This tension remains with us today.

National Self-Determination While the French Revolution posed a direct challenge to international society’s prevailing principles of legitimate statehood, the domestic principle of popular sovereignty was not internationalized by the society of states until the end of the First World War. The Versailles settlement has been referred to as “the final victory in Europe of the French Revolution over the Holy Alliance.”139 Whereas the Holy Alliance had sought to preserve the principle of monarchical legitimacy in the early nineteenth century, the settlement at the end of the First World War saw popular sovereignty established as the principle of international legitimacy. However, popular sovereignty was here couched not in terms of the natural rights of individuals, as it was originally in the context of the American and French Revolutions, but in terms of the rights of nations. What was established at the Paris Peace Conference



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of 1919 was the principle of national self-determination. We will see in this section that this principle was complemented by rights of nations to freedom from intervention and interference in matters of domestic jurisdiction, which were weakly established in the Covenant of the League of Nations. We will also observe how these national rights were established in tension with even weaker correlative sovereign responsibilities for the protection of the rights of national minorities.

Nationalism in the Nineteenth Century The development of nationalism through the course of the nineteenth century had a profound impact on the idea of popular sovereignty. Through the first half of the century, political nationalism was intimately associated with liberal ideas about the equality and freedom of individuals. One reason for this is that, in the face of conservative opposition to liberal change after 1815, reformists increasingly came to the conclusion that individual liberty was impossible without national independence (just as the American revolutionaries had done in the previous century). “What is a country,” nationalist revolutionary Mazzini asked, “but the place in which our individual rights are most secure?”140 He declared that “without Nationality neither liberty nor equality is possible.”141 While less devoted to the idea of the nation-state than Mazzini, Mill also wrote in favor of what was known as “the principle of nationality”: “Where the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart.”142 Mill’s argument was not so much that humanity ought to be divided into nation-states as it was that the fruits of liberal ideals such as representative government are most easily enjoyed when the governed are people of shared nationality: This is merely saying that the question of government ought to be decided by the governed. One hardly knows what any division of the human race should be free to do if not to determine with which of the various collective bodies of human beings they choose to associate themselves. But, when a people are ripe for free institutions, there is a still more vital consideration. Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellowfeeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.143

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However, liberal nationalism was not the only version of nationalism available in the nineteenth century. German romantic writers developed an alternative conception that replaced notions of liberty, which for them had been discredited by Napoleon’s imperialistic wars, with an emphasis on the mystique of the Volk, the supposed inner character of ethnic German peoples that distinguished it from other ethnic peoples.144 According to these writers, a nation was a group possessing shared historical traditions and myths and shared blood, culture, customs, and language. The nation itself was a natural and living entity. The failures of the revolutions of 1848 led to the rejection of the links between individual rights and national self-determination in Germany and Italy, as liberal reforms were increasingly subordinated to goals of national unification.145 Over the second half of the century, the ties between liberalism and nationalism became increasingly tenuous, particularly but by no means exclusively in central and eastern Europe, as political nationalism mutated in profound ways. The formation of nation-states increasingly created counternationalisms among those who were forced to choose between assimilation and national inferiority. National movements emerged among the Armenians, Georgians, Lithuanians, and other Baltic peoples; among the Macedonians and Albanians in the Balkans; among the Ruthenians and the Croats in the Habsburg Empire; among the Jews, the Basques, the Catalans, and the Welsh.146 These new movements sought statehood, and most of them stressed ethnic or linguistic qualities or both to justify their claims. Eric Hobsbawm concludes that “ethnicity and language became the central, increasingly the decisive or even the only criteria of potential nationhood.”147 Just as the nation was increasingly conceived as a natural and living being, so too was the nation-state. German theorists spoke of the nation-state as a natural organism with its own “moral personality.” Georg Hegel, for example, described the state as “the ethical whole, the actualization of freedom.”148 The state was conceived as “a living, articulate force, a historical individual with a personality and will of its own, a personalized ‘whole’ that embodied its own unique spirit.”149 The parallels with Rousseau’s conception of the unified general will are hard to miss, yet these theorists were not theorizing the sovereignty of the people. The real bearer of sovereign authority, they suggested, was neither “the people” nor the monarch but the nation-state.150 Such ideas about the moral personality of the organic state were taken to extremes by later German theorists such as Heinrich von Treitschke. The previous chapter demonstrated that the image of arbitrary and unconditional sovereignty is often incorrectly attributed to the



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“absolutist” theories of the sixteenth and seventeenth centuries. In reality, this image of irresponsible sovereignty is most clearly expressed in the nineteenth- and early twentieth-century theorizing by Treitschke and others who described a nation-state that wielded supreme and arbitrary authority and was answerable to none but its own will and whose end was the promotion of its own interests and glory.151 Treitschke defined the state as “the people, legally united as an independent entity.”152 Yet his notion of “the people” had little in common with liberal ideas. For Treitschke, the state demands obedience from the people, and its power cannot be restrained by them. It also bears the right to repudiate treaties when they no longer serve its interests and the right to declare war at will. The state, according to this conception, is legitimized by its power alone, and its only responsibility is to advance its own interests. The rights of citizens are subordinated to the interests of the state, and the rights of individuals outside the state are not its concern. Such extreme ideas about the illimitability of the rights of sovereign states in their relations with each other would not be adopted by international society. However, the more moderate German ideas about the moral significance of the organic nation-state were influential in Europe, and they fed into ideas about the value of the principle of national selfdetermination. Notions of the moral value of the nation-state complemented the growing demands for the right of nations to enjoy independent statehood and to be allowed to pursue their own sovereign will. In western Europe, national self-determination generally continued to be associated with liberal ideals. Alfred Cobban suggests that “by 1918 nationalism and democracy were generally taken as synonymous in the thought of Western nations. The nation-state was regarded as the political expression of the democratic will of the people.”153 However, in central and eastern Europe, nationalism had increasingly moved away from liberalism, and it was now generally characterized by intolerance, antagonism, and exclusion.154 The claims of national movements were no longer claims for individual liberty and equality or for representative self-government. The idea of national self-determination was ethnolinguistic and did not presume the advancement of individual rights or democracy. Claims for popular sovereignty were not claims for the sovereignty of a body of rights-bearing individuals, as they were for Locke, but more exclusionary claims for the sovereignty of the ethnic nation. It would seem that the implications of this shift were not fully understood by liberal statesmen such as US president Woodrow Wilson when they established national self-determination as the master principle of international legitimacy after the First World War.

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National Self-Determination at the Paris Peace Conference When the war began, well over half of Europe’s population was still controlled by four empires: Ottoman, Austro-Hungarian, Russian, and German. Through the course of the war, these empires had collapsed, and nationalist agitation had increased within their territories. The leaders of the Bolshevik revolution developed a detailed agenda for the reorganization of Europe according to the principle of national self-determination. On November 15, 1917, they issued the Declaration of the Rights of Peoples of Russia, which guaranteed “the right to self-determination up to and including separation and the formation of an independent state, the abolition of all national privileges and restrictions, and freedom of national minorities to develop.”155 In the treaty of Brest-Litovsk, signed on March 3, 1918, the Central Powers forced the Bolsheviks to surrender large tracts of territory in the name of the principle of self-determination. However, the Central Powers proceeded to exploit the peoples of eastern Europe, who soon realized that they could not expect to enjoy independent statehood until Germany, Austria-Hungary, and Turkey were defeated. During this period, the United Kingdom and France began making their own declarations in favor of the principle of selfdetermination both to counteract the pronouncements being made by the Bolsheviks and to weaken the Central Powers.156 For most of the war, the British and French had avoided discussing a postwar program for Europe lest it lead to disputes within the Triple Entente.157 It was not until President Wilson called for all warring parties to declare their goals in late 1916 that they began to articulate unified “war aims” along the lines of “the principle of nationality.” The French suggested that their objectives would include the “liberation” of national communities throughout Europe. British prime minister David Lloyd George spoke of his desire for a territorial settlement based on “the general principle of national self-determination.”158 Wilson himself believed that the purpose of fighting was to eliminate the causes of the war, which he argued included the denial of self-government and democracy to peoples. In June 1917, he informed Russia that the United States had entered the war to fight “for liberty, the self-government, and the undictated development of all peoples” because no people should “be forced under sovereignty under which it does not wish to live.”159 Wilson’s ideals were very much in the frame of Mill’s version of liberal nationalism. Initially at least, he preferred to speak of “self-government” rather than “self-determination,” and self-government for him simply meant



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the idea that government should be based on the consent of the governed. Michla Pomerance observes, “The ‘self’ in Wilson’s ‘self-government’ was not necessarily the ‘nation’ of continental Europe.”160 Indeed, in his own scholarly work before entering politics Wilson had stated a preference for a liberal view of the “nation” as a “community of organization, of life, and of tradition” over the German conception of the Volk, which emphasized blood, history, and language.161 It would seem that Wilson did not initially contemplate the breakup of European empires along national lines.162 However, that was precisely how those nations that were subject to the European empires of central and eastern Europe interpreted Wilson’s wartime statements. Self-determination for them was understood not in terms of representative government but in terms of the freedom of each nation to live in its own sovereign state.163 Wilson gradually became aware of the nature of these national demands and began to modify his message of self-government so that it encapsulated notions of national self-determination.164 In his famous Fourteen Points speech, given on January 8, 1918, Wilson spoke of the aim of selfdetermination for at least some subject nations such as the Poles. In a speech to Congress one month later, Wilson revealed that his thoughts on the nationality question had evolved even further: Peoples are not to be handed about from one sovereignty to another by an international conference or an understanding between rivals and antagonists. National aspirations must be respected: peoples may now be dominated and governed by their own consent. Self-determination is not a mere phrase, it is an imperative principle of action which statesmen will henceforth ignore at their peril.165

When the four principal allies, the United States, Britain, France, and Italy, met at the Paris Peace Conference to discuss questions of legitimate statehood in postwar Europe, they soon agreed that the principle of national selfdetermination would be the guiding principle upon which new states were created. As Wilson explained, “We [the four allies] are trying to make an equitable distribution of territories according to the race, the ethnographical character of the people inhabiting those territories.”166 Andreas Osiander suggests that national self-determination became the “new master prin­ ciple” at the peace conference; it became “the accepted criterion for membership of the system.”167 Henry Kissinger similarly concludes that national self-determination was “the legitimizing principle of the new international order.”168

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Of course, national self-determination could never be more than a general guide at the conference. Even with the use of plebiscites in some areas, it soon became clear that self-determination for some nations necessarily meant creating new national minorities.169 Moreover, the number of national movements claiming a right to sovereign statehood was overwhelming. Wilson had not anticipated this. He informed the Senate Committee on Foreign Relations: When I gave utterance to those words [i.e., that all nations had a right to self-determination] I said them without the knowledge that nationalities existed, which are coming to us day after day. . . . You do not know and cannot appreciate the anxieties that I have experienced as a result of many millions of people having their hopes raised by what I have said.170

Furthermore, the principle of national self-determination was difficult to apply consistently because it threatened other priorities. In a number of instances the principle was subordinated to strategic imperatives of the Allied powers or to the provision of the basic economic and military needs of new nation-states such as Poland and Czechoslovakia.171 Moreover, as the next chapter observes, the principle was not extended beyond Europe. The Allied powers had no intention of conferring statehood to subject nations within their own empires, and it was decided that the subject territories of defeated powers were to be held in trust by mandatory states on behalf of the League of Nations on the grounds that these peoples had not yet developed the capacity to responsibly govern themselves. Nevertheless, national self-determination was the most prominent among competing principles that guided the establishment of a new international order within Europe. It was applied not only to weaken the Central Powers but also, in the case of Italy, “to thwart the spoils of war.”172 Numerous states were newly created along national lines. These included ethnic states such as Hungary, Estonia, Latvia, Poland, and Lithuania and pannationalist states such as Czechoslovakia and Yugoslavia. The borders of states such as Bulgaria and Albania were adjusted to more accurately reflect the ethnic distribution of populations. And the core territories of the Austro-Hungarian and Ottoman empires were reorganized as the nation-states of Austria and Turkey.173 Wight’s conclusion is typically grand: The doctrine that there are no valid members of international society save those born of national self-determination triumphed when in the



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shock of the First World War, the military multinational empires of Eastern Europe—German, Hapsburg, Russian and Ottoman—collapsed. The Versailles Settlement was the final victory in Europe of the French Revolution over the Holy Alliance.174

Thus popular sovereignty was for the first time established as a legitimacy principle at the international level. International society determined that legitimate states comprised self-governing nations. This was the new criterion for sovereign recognition. Importantly, as foreshadowed in revolutionary France, the sovereignty of the nation was prioritized over the liberty of individuals. The principle of national self-determination was concerned with the right of nations to govern themselves, but it was silent on individual rights. Of course, Wilson’s program was underpinned by liberal values, and he desired that it would lead to the spread of liberal institutions within states, but national self-determination grounded sovereignty in the rights of nations rather than individuals. As Samuel Barkin observes, “Nationalism as a legitimating norm . . . requires of states neither democracy nor a respect for liberal rights. It requires of them only that they represent nations.”175 The right of nations to govern themselves and to determine for themselves how individuals ought to be treated was complemented by both an emergent principle of “domestic jurisdiction” and a weak right of nonintervention in the Covenant of the League of Nations.

Domestic Jurisdiction and Nonintervention in the Covenant of the League of Nations One of the most important provisions protecting the right of nations to govern themselves included in the covenant, and one that endures in international law today, was the principle of “domestic jurisdiction.” It had become standard practice since the Hague Conferences at the turn of the twentieth century to exempt from the scope of procedures for the peaceful settlement of disputes between states those disputes that affected “the vital interests, the independence, or the honor of the two contracting States.”176 This essentially had the effect of preserving states’ freedom of action. In contrast, the draft covenant, presented to the Paris Peace Conference in 1919, called for arbitration or conciliation of all disputes that were not resolved through diplomacy. Article 15 of the draft elaborated a procedure for conciliation through the future League of Nations. It quickly became apparent that the US Senate would not approve of such an article without modifications. William Howard Taft, then president of the League to Enforce Peace,

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expressed concerns that “the United States would be bound by a unanimous recommendation for settlement of a dispute in respect to any issue whether foreign or domestic, and the nation might thus be seriously and unjustly affected by recommendations against excluding Asiatics or erecting tariffs.”177 A suggested change offered by Taft formed the basis for President Wilson’s proposal for amending article 15, which he presented to the peace conference. This proposal excluded from consideration of the league those matters that were within the “domestic jurisdiction” of one of the disputing parties. The proposal was accepted and included as article 15(8) of the covenant. It reads: If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.178

This principle of domestic jurisdiction would be more firmly established in international law after the Second World War. It would then apply to all matters of concern to the United Nations rather than only the settlement of disputes between states. Nevertheless, we find in article 15(8) an early attempt to consolidate the right of nations to be free from outside interference in response to the strengthening of international institutions. The emerging insistence that the international community should not interfere in the domestic affairs of sovereign states could also be found in the repeated rejection of suggested provisions for religious toleration and racial and national equality during the drafting of the covenant. The Japanese delegation to the peace conference in particular made numerous entreaties for the inclusion of a clause declaring the right of racial equality in the covenant. Each was rejected.179 At the final meeting of the commission in Paris they brought forward their final and most innocuous proposal for race equality in the form of a clause to be inserted into the preamble endorsing “the principle of the equality of Nations and the just treatment of their nationals.”180 Lord Robert Cecil justified Britain’s opposition to such a provision by appealing to the sovereign right to freedom from outside interference: The British government realized the importance of the racial question, but its solution could not be attempted by the Commission without encroaching upon the sovereignty of States members of the League. One of two things must be true: either the points which the Japanese Dele­ gation proposed to add to the Preamble were vague and ineffective, or



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else they were of practical significance. In the latter case, they opened the door to serious controversy and to interference in the domestic affairs of States members of the League. There were a great many things which the States themselves ought to do: but these were not included in the Preamble. For example, it had been found impossible to include in the text, matters so unquestionably right as those of religious liberty, the claims of the International Council of Women, and a great many other principles of this sort because they would result in infringements of the sovereignty of States.181

Eleven out of seventeen delegates voted in favor of the inclusion of the proposed clause, but Wilson controversially declared that the amendment would not be adopted, as it had not received unanimous support. One observer noted, “It was clear that the objection of the British Delegation was of such a character that, notwithstanding the views of the United States or of any other delegations, the Japanese proposal could not become part of the Covenant.”182 The principles of self-government and noninterference articulated by British foreign secretaries a century earlier were now being established by the society of states. In addition to prohibiting interference by the league in the domestic affairs of states to some degree, the covenant also outlined a right of non­ intervention. Article 10 declared, “The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.”183 Thus the acquisition of title by conquest and the changing of the territorial status quo by force were outlawed. However, while the rights of states to use force against other states was restricted, the covenant by no means made either humanitarian intervention or aggressive war illegal. Chesterman concludes that the covenant “neither prohibited nor explicitly allowed for humanitarian intervention.”184 And Sharon Korman suggests that war was still acknowledged as “a legitimate means of settlement when modes of peaceful settlement had failed.”185 It is commonly asserted that the decisive move away from the freedom of sovereigns to wage war was not made by international society until the signing of the Kellogg-Briand Pact in 1928.186 The pact was signed by all the great powers of the day. Article 1 reads: “The High Contracting Parties solemnly declare, in the names of their respective peoples, that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.”187 This was a general prohibition on war with the only exception

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being an implicit right of self-defense.188 However, this pact also had its shortcomings. It prohibited war rather than the use of force in general. China and Japan took advantage of this omission in 1931 and 1937 when engaging in extensive military operations against each other while insisting that they were not in a state of war. Moreover, the pact was not linked to any system of sanctions. It merely provided that those who violated the pact should not be protected by its benefits.189 In 1928 and the years following, Germany, Japan, and Italy willingly joined with over one hundred other states in signing the Kellogg-Briand Pact. A few years later they would just as willingly go to war. Kissinger concludes that the pact was “as irresistible as it was meaningless.”190 Nevertheless, the pact does reveal that the society of states increasingly accepted that sovereign statehood entailed a duty to eschew war and intervention in the affairs of other sovereigns. This prohibition of war further consolidated the right of sovereign nations to govern themselves free from outside interference.

The Minority-Rights Regime While the prevailing discourse of sovereignty now clearly emphasized the rights of self-government and freedom from interference and these rights were being positivized in international law, sovereignty was still held to entail external responsibilities with respect to at least one key issue: states that had been newly created or reorganized along national lines were held to be accountable to international society for the protection of the rights of their national minorities. National self-determination was understood by Wilson and others as a principle that would help restore stability to Europe. However, the inevitably imprecise application of the principle led to the creation of national minorities whose dissatisfaction or mistreatment could pose their own threats to international order.191 National minorities amounted to 25–30 million persons or 20–25 percent of the populations of new states established at the Paris Peace Conference.192 It was quickly realized, therefore, that a necessary corollary of the principle of national selfdetermination was the guarantee of national minority rights.193 Minority-rights guarantees had been a common requirement of recognition for newly sovereign states since the seventeenth-century, and they had been included in every major international peace treaty since Westphalia.194 In the nineteenth century, new states that emerged as a consequence of the slow disintegration of the Ottoman Empire were recognized as sovereign by the major powers on the condition that they accepted provisions for religious toleration. First Greece in 1830 and then, at the Congress of Berlin in 1878,



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Serbia, Montenegro, Bulgaria, and Romania were each compelled to provide commitments to protect the rights of religious minorities. The demands for these provisions were motivated by concerns for the stability of the volatile Balkan region and also the humanitarian concerns of Britain and the United States. While enforcement mechanisms for noncompliance were not enumerated in 1878, Inis Claude maintains that the great powers “undoubtedly considered the Treaty of Berlin gave them the right of interference in cases of nonfulfillment.”195 Nevertheless, once sovereign recognition was granted, enforcement of minority-rights provisions was difficult. Although they sent protests, the major powers were unwilling to apply forceful economic and military pressure to end mistreatment of Armenian minorities in Turkey or Jewish minorities in Romania or to protect minority rights elsewhere.196 After the First World War, Wilson insisted that new states should be made accountable to international society for the protection of their minorities: “All new states should enter into solemn obligations under responsibility to the whole body of nations, to accord to all racial and national minorities within their jurisdictions exactly the same status and treatment, alike in law and in fact, that are accorded to the majority of people.”197 His initial attempts to include provisions for the protection of national minorities in the Covenant of the League of Nations were unsuccessful.198 It was finally decided that minority rights would be provided through international treaties with new and reorganized states and guaranteed by the league. Some new states complained that this new regime of minority-rights treaties represented an infringement upon their sovereignty.199 French prime minister Clemenceau, however, rightly noted that the practice of placing conditions on the recognition of new states was long-standing. In a cover note attached to a treaty that Poland was to sign, he noted: This treaty does not constitute any fresh departure. It has for long been the established procedure of the public law of Europe that when a State is created, or even when large accessions of territory are made to an established State, the joint and formal recognition of the Great Powers should be accompanied by the requirement that States should, in the form of a binding international Convention, undertake to comply with certain principles of Government.200

Clemenceau emphasized that Polish sovereignty was for the society of states—specifically the great powers—to bestow and insisted that it was the responsibility of those powers to ensure that Poland guaranteed the protection of its minorities:

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I must also recall to your consideration the fact that it is to the endeav­ ours and sacrifices of the Powers in whose name I am addressing you that the Polish nation owes the recovery of its independence. It is by their decision that Polish sovereignty is being re-established over the territories in question, and that the inhabitants of these territories are being incorporated in the Polish nation. It is on the support which the resources of these Powers will afford to the League of Nations that the future Poland will to a large extent depend for the possession of these territories. There rests, therefore, upon these Powers an obligation, which they cannot evade, to secure in the most permanent and solemn form guarantees for certain essential rights which will afford to the inhabi­ tants the necessary protection, whatever changes may take place in the internal constitution of the Polish State.201

Newly sovereign states were held to be responsible to international society for the protection of their national minorities. The minority-rights treaties stated that the stipulations of minority rights protection “constitute obligations of international concern and shall be placed under the guarantee of the League of Nations.”202 The obligations, therefore, were not simply owed to the victorious powers but to the wider international society of states.203 International society, in turn, committed itself to monitor and enforce the protection of minorities. However, as had become standard practice in the second half of the nineteenth century, these minority-rights guarantees were demanded of new and reorganized states only. Neither the allied states nor Germany were required to assume these obligations. The minority-rights regime required of new sovereign states “certain principles of government,” which supposedly derived from “fundamental principles to which all civilized states conformed.”204 However, the “civilized states” that imposed these minority-rights provisions did not themselves consent to them. In 1922, the Assembly of the League of Nations expressed the hope that the States which were not bound by any legal obligations towards the League with respect to minorities would nevertheless observe in the treatment of their own racial, religious, or linguistic minorities at least as high a standard of justice and toleration as is required by any of the treaties and by the regular action of the Council.205

Such declarations, however, were not binding. It would be imprudent, therefore, to suggest that the minority-rights regime amounted to a general responsibility of sovereign statehood. Instead, provisions for minority rights



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are better understood as a requirement of sovereign recognition and a sovereign responsibility imposed upon new and reorganized states. Nevertheless, these imposed responsibilities for the protection of minorities are rightly understood as antecedents of more generalized sovereign responsibilities for the protection of human rights that would be established after the Second World War. By the mid-1930s, the minority-rights regime had collapsed for reasons similar to those for the collapse of the League of Nations and of international order more generally: the provisions of the Peace of Paris were never accepted by those defeated in the war as either just or permanent. While numerous states provided for the protection of minorities in treaties or in arrangements made with the league, many of them never reconciled themselves to their imposed responsibilities, which they continued to see as an infringement upon their sovereignty and a violation of the principle of the equality of states. Moreover, the enforcement of the treaties was cumbersome and ineffectual. Nevertheless, Wight maintains, “Although minorities treaties were repudiated with indignity . . . and were difficult to enforce, they were a notable attempt to refine the new principle of legitimacy and to control its operation.”206 The minority-rights regime was no more flawed than the newly constructed international order that necessitated it. As Jennifer Jackson Preece suggests, “In recognizing the need for a system of national minority guarantees, the victorious powers at Paris acknowledged—if only implicitly—the unavoidable shortcomings of national selfdetermination at precisely the same moment as they hailed it as the new principle of legitimacy in international society.”207 The decades after the First World War saw increasing disregard for individual and minority rights as well as a multitude of claims and counterclaims by nation-states seeking to expand their territories to include all their scattered nationals. By 1945, Cobban could declare that “the nation-state, inflated with the wind of national sovereignty, has become a true leviathan, fatal to the domestic liberties of individuals and groups.”208 The horrors of the Second World War exposed clearly the disastrous consequences of constructing an international order on racial grounds. h “The essence of sovereignty was the absence of responsibility.”209 So claimed US secretary of state Robert Lansing when chairman of the Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties, established as part of the Paris Peace Conference. The

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German kaiser, he argued, was not accountable to the society of states for atrocities committed during the war; he was responsible only to the German people: “When the people confided [sovereignty] to a monarch or other head of State, it was legally speaking to them only that he was responsible, although there might be a moral obligation to mankind. Legally, however, there was no super-sovereignty.”210 Elsewhere, as a theorist rather than secretary of state, Lansing elaborated his position. He defined sovereignty to be “the power . . . to do all things in a state without accountability”211 and insisted: The body of individuals in a state, in which body resides the real sovereignty, is not restrained in any way . . . in declaring the fundamental law of the state. They may, indeed, if they so will, embody in a constitution provisions which are manifestly unjust and immoral. It is not at all a question of right, but a question of power. . . . The sovereign is supreme, but the sovereign may be unrighteous.212

To some degree at least, as we have seen, these words reflect the mindset of international society with respect to sovereign responsibilities in the first decades of the twentieth century: sovereign nation-states were to be self-governing and free from outside intervention or interference in matters of domestic jurisdiction. And the origins of these ideas can be found in the concept of popular sovereignty as developed in the seventeenth and eighteenth centuries: sovereignty remains permanently in the people, and it is for the people to determine how they will govern themselves; the people’s representatives are responsible for carrying out the people’s will and are accountable to none but the people themselves. However, in direct contrast to his claims of unaccountable state sovereignty, Lansing also wrote of the increasing importance of “world sovereignty,” by which he meant a collective supranational authority that limits the sovereign rights of states. He pointed to the “enforcement of the sovereign will of mankind” in the suppression of the slave trade and the examples of humanitarian intervention in Ottoman territories in the nineteenth century (examples we will consider in the following chapter) and concluded: The influence of the collective opinion of nations operating throughout the Community of Nations . . . is forcing political rulers of nations to submit to the dictates of the World Sovereign rather than to incur the condemnation, if not the hostility, of the great civilized states, the most powerful and most influential members of the Community of Na-



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tions. . . . The fear of this disfavor or condemnation, though not an actual force, has become a powerful influence in directing international intercourse.213

Although Lansing did not refer to it, the minority-rights regime was another clear example of the “world sovereign” limiting the rights of sovereign states and holding them accountable for their treatment of individuals and peoples. In key respects, therefore, sovereignty did not entail “the absence of responsibility” at all. Moreover, as we have seen, this idea that the rights of individuals should be secured was also to be found at the heart of the concept of popular sovereignty. The end of government, the American and French revolutionaries had proclaimed, was the protection of individual rights and liberties. By the first decades of the twentieth century, therefore, the tension inherent in the idea of popular sovereignty—that is, the tension between the right to self-government, free from outside interference, and the responsibility to secure the rights of individuals—had begun to be internationalized and positivized in law by the society of states. The fifth chapter considers the further development of this tension in the drafting of the UN Charter and in the practices of international society during the Cold War. Chap­ ter 4, in the meantime, examines what has been conspicuously absent from the present chapter: the markedly different rules of sovereignty that were established during the nineteenth and early twentieth centuries in European international society’s relations with the non-European world.

chapter four

Sovereignty and the Non-European World

I

n the early modern period, the law of nations was generally understood  to apply universally, grounded as it was in the universal law of nature.1 Grotius wrote of the “general Society of Mankind” and the mutual obligations naturally owed by virtue of our “common Humanity.”2 Challenging the divisions between Christians and infidels posited by medieval jurists and theologians, he argued that both natural and divine law provided grounds for Christians to be bound by treaties and alliances with infidels.3 Vattel similarly wrote of “the ties of that universal society which nature has established” among nations and, plainly rejecting earlier divisions, declared that no nation could refuse to render its natural duties to another on grounds of its professing a different religion: “to be entitled to them, it is sufficient that the claimant is our fellow-creature.”4 He looked forward to a time when the law of nations was everywhere observed: “the world would have the appearance of a large republic; men would live everywhere like brothers, and each individual be a citizen of the universe.”5 Wolff indicated that the content of the law should be understood in terms of “what has been approved by the more civilized nations,” but he likewise indicated that this law was universally applicable.6 However, as noted in chapter 2, while it was framed in inclusive terms, the universal law of nations was often constructed by Europeans in ways that facilitated conquest and rule over those beyond Europe. Early modern theorists articulated various universal rights and duties—of war, property, trade, and hospitality—that were put to work to legitimize European imperialism.7 In the final decades of the eighteenth century, numerous influential thinkers offered fierce critiques of European practices of conquest and rule over non-European peoples. Theorists such as Burke, Adam Smith, and Jeremy Bentham in Britain, Denis Diderot and Benjamin Constant in France, 100



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and Immanuel Kant and Johann Gottfried Herder in Germany drew on a variety of ideas to challenge European imperialism, many of which also underpinned the shift toward popular sovereignty within Europe in these years. These ideas included the rights of man, the right of self-rule, and the evils of foreign despotism. Theorists pointed to the hypocrisy of self-governing peoples enjoying freedom at home while exercising tyranny over nonconsenting subjects abroad. They rejected notions of European moral superiority and tended to embrace not only universal moral principles but also a commitment to cultural and religious diversity.8 Some critiques of European imperial practices were grounded in the inclusive understanding of the society of mankind and the law of nations that continued to be widely embraced. Burke, for example, decried the “geographical morality” by which British imperialists sought to argue that the moral and legal standards they accepted in their relations with each other were not applicable in their dealings with culturally and religiously different non-European peoples. His arguments against the “unwarrantable and criminal practices” of imperialists in India, which threatened both the well-being of Indians and the honor of Britain, were grounded in an insistence that “the law of humanity, Justice, and Equity” and “the Law of Nature and Nations” strictly bound Europeans in their conduct beyond as well as within Europe.9 Such inclusive understandings of humanity and of the law of nations, however, would soon be supplanted by a stark division between “civilized” and “barbaric” peoples and an exclusive conception of positive international law whose scope was restricted to the European family of “civilized” nations. Through the course of the nineteenth century, Europeans developed an increasingly secure belief in their superiority over non-European peoples. Self-confidence in the superiority of European politics and culture was produced by particular developments such as the removal of absolutist regimes and the abolition of the slave trade and underpinned by a realization of technological and economic dominance. With this increased self-confidence came a fundamental shift in thinking away from a belief in human uniformity to one that emphasized differences in temperament and ability. Human groups were now differentiated according to their “character” and ranked according to their “advancement.” Nuanced and pluralist eighteenth-century theories of progress gave way to beliefs in the “backwardness” of certain societies and a crude distinction between “civilized” and “barbaric” peoples.10 John Stuart Mill, for example, suggested that civilization consisted of a dense population; a developed level of agriculture, commerce, and manufactures; cooperation and social intercourse; and laws and arrangements for the protection of persons and their property. Barbaric

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peoples and savage tribes, Mill argued, lacked these characteristics.11 In the first half of the nineteenth century, most thinkers insisted that the distinction between civilized and uncivilized was merely cultural, political, and economic, rather than biological. From the middle of the century onward, however, thinkers increasingly accepted that the distinction could be justified on quasi-scientific, social-Darwinian grounds.12 In contrast to the universalism of the early modern period, nineteenthcentury thinkers asserted that the political and legal standards applicable to civilized nations needed to be distinguished from those applicable to relations between civilized and barbaric nations. Mill expressed this particularly forcefully in his essay “A Few Words on Non-Intervention.” Whereas civilized nations should be guided in their relations with each other by a mutual respect for a sovereign right of nonintervention, Mill argued, such a rule was not applicable in relations between civilized and uncivilized societies. Indeed, he declared, the law of nations simply did not extend to such relations: To suppose that the same international customs, and the same rules of international morality, can obtain between one civilized nation and another, and between civilized nations and barbarians, is a grave error, and one which no statesman can fall into, however it may be with those who, from a safe and unresponsible position, criticise statesmen.13

Mill offered two reasons for this. First, barbarians were incapable of observing such international rules: “Barbarians will not reciprocate. They cannot be depended on for observing any rules. Their minds are not capable of so great an effort.” And second, such rules would not prove beneficial for barbarians. It was better for barbarians that they should be conquered and subject to foreign rule: “The sacred duties which civilized nations owe to the independence and nationality of each other, are not binding towards those to whom nationality and independence are either a certain evil, or at best a questionable good.”14 Mill concluded: To characterize any conduct whatever towards a barbarous people as a violation of the law of nations, only shows that he who so speaks has never considered the subject. A violation of great principles of morality it may easily be; but barbarians have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fit them for becoming one. The only moral laws for the relation between a civilized



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and a barbarous government, are the universal rules of morality between man and man.15

Such conclusions were commonly repeated in commentaries on international law. Legal theorists claimed to develop a positivized body of international law that was a product of treaties and customs between states, though as we saw in chapter 3, this claim was belied by the fact that most continued to rely on natural law to provide the grounds for such foundational principles as the rights of self-preservation and nonintervention. These positivist theorists claimed that the only worthy sources of international law were those contracted between civilized states, and they insisted that the scope of the law needed to be restricted to the “family of civilized nations” on the grounds that uncivilized peoples lacked the competence to comprehend its principles. As William Edward Hall explained, It is scarcely necessary to point out that as international law is a product of the special civilisation of modern Europe, and forms a highly artificial system of which the principles cannot be supposed to be understood or recognised by countries differently civilised, such states only can be presumed to be subject to it as are inheritors of that civilisation.16

The distinction between civilized and barbaric peoples and the exclusion of the latter from the scope of international law led to the construction of a set of rules of sovereignty for the non-European world that were very different from those that were understood to obtain within Europe. Political and legal thinkers insisted that the rights enjoyed by European sovereigns, including the emerging rights of self-government and freedom from external interference, were rights that could only be fruitfully enjoyed by peoples of a certain level of development. However, guided as they were not only by a hierarchical conception of humanity but also a liberal narrative of progress, they believed that such civilized states represented “the archetype and future for the rest.”17 These thinkers insisted that it was the responsibility of civilized states to use their greater capacity and moral authority to impose progress on those more backward peoples beyond Europe and to guide them toward civilization, through coercion and violence if necessary.18 This chapter explores how the concept of “civilization” was put to work by European international society to justify a range of practices in the non-European world in the nineteenth and early twentieth centuries. Each of these practices featured clear articulations of an intimate relationship

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between authority and responsibility, and they would have a profound impact on the evolution of the rules of sovereignty. First, I consider the fringes of the family of civilized nations and observe how those states that were recognized as sovereign but found to be unable to fulfill the demands of civilization and to protect the safety of their populations were held to be legitimate targets of “humanitarian intervention.” I trace justifications for intervention by European states in the Ottoman Empire and by the United States in the Western Hemisphere and find that enjoyment of the rights of sovereignty was clearly understood to be conditional upon the performance of sovereign duties. Second, I consider uncivilized states beyond Europe that wished to be granted recognition as fully sovereign members of the family of civilized nations. I detail the development by European international society of a test for recognition that outlined the responsibilities of legitimate statehood and that became known as the “standard of civilization.” After briefly considering the importance of the abolition of the slave trade for the rules of sovereignty, I then turn to a detailed examination of a third practice: that of European colonialism, which was justified on the grounds that some non-European peoples were so uncivilized that they could not responsibly govern themselves. I explore how the society of states came to accept that the civilized world had a “sacred trust” for the protection and improvement of these uncivilized subject peoples and eventually institutionalized this principle of trusteeship in the “mandates system” after the First World War. The impact of these practices and principles on the subsequent development of the rights and responsibilities of sovereign statehood is too often neglected. Each can properly be understood as international society attaching responsibilities to sovereign authority, and a line can be drawn from them to the international human-rights regime that emerged after the Second World War as well as to post–Cold War concepts of “sovereignty as responsibility” and the “responsibility to protect.” At the same time, as noble as the intent of some of those who developed these rules of interaction with the nonEuropean world may have been, the enduring memory of unequal treatment, humiliation, and oftentimes violence suffered by non-European peoples in the name of “civilization” and “humanitarianism” in this period served to catalyze their demands for unconditional rights of self-government and freedom from outside interference after the Second World War and remains a reason for the resistance of some states to present-day constructions of sovereign responsibilities. As I detail in the book’s conclusion, the story of European imperialism comprises a deeply lamentable but unavoidable chapter in the history of the relationship between sovereignty and respon-



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sibility. It is one with which present-day advocates of the “responsibility to protect” must wrestle if they are to adequately engage with their critics and to ensure that their program for the international enforcement of sovereign responsibilities does not lend itself to yet another “civilizing mission” that facilitates the political and legal exclusion and oppression of “uncivilized” peoples. In the present chapter, however, I merely seek to tell the historical story and to consider its implications for the historical development of the relationship between sovereignty and responsibility.

Humanitarian Intervention As noted in the previous chapter, the nineteenth century was witness to a number of early examples of humanitarian intervention. While the motivations of intervening states may have tended to be mixed, they justified their interventions according to principles of “civilization” and “humanity” and the need to protect fellow Christians and foreign nationals, and the interventions were approved by the great powers of the day. These cases demonstrate that the society of states recognized the legitimacy of intervention in response to the failure of states to protect the safety of people within their territory. The interventions were undertaken on the fringes of the family of “civilized” nations: by European states in a decaying Ottoman Empire and by the United States in the Western Hemisphere. Therefore, we need to be careful before extrapolating from them a generalized right of humanitarian intervention. Nevertheless, these interventions against recognized sovereigns were justified in universal terms of a failure to fulfill the obligations of statehood, and they represent important historical examples of the international enforcement of sovereign responsibilities.

European Interventions in the Ottoman Empire European states enjoyed full diplomatic relations and concluded numerous international treaties with the Ottoman Empire in the nineteenth century. The empire was formally admitted into the European family of nations in the Treaty of Paris in 1856. Nevertheless, there are reasons for being cautious about the extent to which we take European interactions with the Ottomans to be representative of generalized principles of European international society.19 The Ottoman Empire was decaying and struggling to maintain order among its provinces through the nineteenth century, and European powers had strategic interests in extending their influence over these territories. In addition, despite the extension of recognition in 1856,

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doubts lingered about whether the Ottomans met the standard expected of a member of the family of civilized nations.20 European states continued to derive from Ottoman authorities concessions known as “capitulations” regarding the protection of Christians within the empire. And, despite these concessions, the empire continued to be perceived as “unable and unwilling to fulfil its obligations as a European state.”21 Writing in 1883, James Lorimer lamented “the consequences of extending the rights of civilisation to barbarians who have proved to be incapable of performing its duties, and who possibly do not even belong to the progressive races of mankind.”22 As late as 1920, Oppenheim’s International Law could conclude that Turkey’s “position as a member of the Family of Nations was anomalous, because her civilisation fell short of that of the Western states. It was for that reason that the so-called capitulations were still in force, and that other anomalies still prevailed.”23 The regime of extraterritorial capitulations was not ended until the Treaty of Lausanne in 1923.24 The repeated interventions in Ottoman affairs in the nineteenth century were justified according to the perceived failure of the Ottomans to uphold civilized European standards. Europeans pointed to the unwillingness or inability of Ottoman authorities to protect Christian subjects as evidence of their “uncivilized” nature. They cited specific violations of the “rights of humanity” as well as a more general failure to introduce reforms of “good government” as examples of “barbarity,” and this was understood to justify denial of the emerging right of nonintervention. In the short term, it was argued, intervention could save fellow Christians. In the longer term, interventions could help spread “civilization.”25 The practice of European humanitarian intervention in this period was restricted to the protection of fellow Christians beyond Europe.26 The interventions in the Ottoman Empire can be contrasted with the failure to intervene to protect Catholic Poles that were victims of atrocities by “civilized” Russia in the 1830s and 1860s and the failure to forcefully respond to pogroms against Jews within Europe in the late nineteenth and early twentieth centuries.27 They can also be contrasted with the failure to respond to instances of violence against Muslims by Christians within the Ottoman Empire. As Davide Rodogno observes, “In the European account of the massacres [within the empire], Muslims always killed Christians, and the fact that Orthodox Greeks, Lebanese Maronites, Bulgarians, Christian Cretans, or Macedonians killed Muslims seldom entered into the equation.”28 Moreover, appalling hypocrisy can be observed when the Ottoman interventions are set against atrocities committed by the same European powers in their colonies beyond Europe. Rather than applications of a generalized doctrine of humanitarian inter-



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vention, then, the interventions in Ottoman affairs are best understood as military actions taken by “civilized” Europe in response to breaches of treaties and capitulations and the mistreatment of Christians by “uncivilized” infidels. Nevertheless, they do provide evidence of a prevailing belief that sovereigns could in certain circumstances be rightfully held to account by international society for the treatment of their populations. The intervention to rescue Greek Christians from Ottoman oppression in 1827 is often cited as the earliest example of humanitarian intervention. An insurrection by Greeks against Ottoman rule in the 1820s led to several massacres being committed against Greek Christians. Russia soon threatened to respond to Turkish atrocities with force for a combination of humanitarian and geostrategic reasons. While other European governments were initially opposed to intervention out of fear that Russia would benefit from a weakened Ottoman Empire, their people took a strong interest in the plight of Greek Christians. A philhellenic movement spread throughout Europe, which sent large sums of money and volunteers to Greece and demanded that European powers intervene to rescue Christians from the infidel. On July 6, 1827, Great Britain, France, and Russia concluded the Treaty of London. They resolved to put an end to the bloodshed and proposed limited autonomy for Greece within the empire. The European powers declared that they were “animated with the desire of putting to a stop the effusion of blood and preventing the evils of every kind,” and they claimed that action was called for “no less by sentiments of humanity, than by interests for the tranquillity of Europe.”29 Ottoman rejection of the proposals of the European powers led to the imposition of a blockade and subsequently the Battle of Navarino in October 1827 in which a coalition of Russian, British, and French forces easily defeated the Ottoman forces. The Ottomans acceded to the demands of the European powers, and, ultimately, an independent Greece was recognized by the society of states in 1830. The intervention was undoubtedly motivated not only by humanitarian concerns but also by geostrategic interests.30 Nevertheless, the justifications offered for their actions demonstrate that the European powers clearly believed that atrocities committed against Christians within Ottoman territories were a legitimate matter of international concern and a rightful basis for military intervention. Scholars tend to submit varying lists of examples of humanitarian intervention undertaken to protect Christians in Ottoman-controlled territories in the period between the Greek intervention and the outbreak of the First World War.31 One commonly cited case is the French intervention in Syria in 1860–61. In response to the slaughter of an estimated eleven

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thousand Maronite Christians by Druzes and Muslims in this region in 1860, Austria, Great Britain, France, Prussia, and Russia adopted a protocol with Turkey authorizing the dispatch of twelve thousand troops to the region. The Sultan, “wishing to stop, by prompt and efficacious measures, the effusion of blood in Syria, and to show his firm resolution to establish Order and Peace amongst the Populations placed under his Sovereignty,” agreed to the deployment of these troops “to contribute towards the re-establishment of tranquility.”32 The six thousand French forces that were ultimately deployed helped villages rebuild and helped quell the violence that had to a large extent already subsided. They soon returned home. The extent to which this case can be understood in terms of the international enforcement of Ottoman obligations is perhaps limited, since the Sultan consented to the intervention. However, as Ellery Stowell observes, consent was given by the Sultan only “through constraint and a desire to avoid worse.”33 Another example commonly referred to is the Russian intervention in Bosnia, Herzegovina, and Bulgaria. In March 1877, the great powers issued a protocol reaffirming their concern for Christians under Ottoman rule in these territories and their determination to take all necessary measures to ensure that these subjects were protected in accordance with the provisions of the 1856 Treaty of Paris. After the Ottomans rejected the protocol on domestic-jurisdiction grounds, Russia intervened and easily defeated the Ottoman forces. The following year, the Treaty of Berlin was adopted, providing for the limited autonomy of a Christian government under Turkish rule in Bulgaria and for Austro-Hungarian authority over Bosnia and Herzegovina. The treaty also demanded the protection of minority rights in these and other Ottoman territories, as noted in chapter 3. Russia justified its intervention on the basis of the Ottomans’ treaty obligations to protect their Christian subjects. Although the intervention was unilateral and other European powers were worried about Russian opportunism in the region, none suggested that the use of force was illegitimate.34 While the purity of each of these examples of humanitarian intervention is questionable in one way or another, it is reasonable to conclude that the European powers accepted that such interventions were a legitimate response to the failure of Ottoman authorities to fulfill their obligations to protect Christians within their territories. It is worth observing that, in contrast to the model of unilateral punishment by one sovereign against another espoused by early modern theorists such as Grotius, the European powers tended to negotiate with each other, and also with the Ottomans, regarding how to respond to atrocities and then either intervened collectively or mandated one or more states to intervene. Also, in contrast to the



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aggressive imperialism being conducted further beyond the civilized world, these multilateral interventions did not evince the unbridled pursuit of selfinterest. As Gary Bass summarizes, The great powers had to convince each other that their purported mercy mission was not just a foil for imperial expansion. So the intervening states had to impose limitations on themselves. There were a number of established techniques of self-restraint: delineating spheres of justifiable intervention for each of the great powers, delegating to regional powers, putting time limits on humanitarian interventions, restricting the size of the military force, foreswearing diplomatic and commercial advantages from a humanitarian mission, and, above all, multilateralism.35

It was noted in the previous chapter that a majority of commentators admitted a generalized right of humanitarian intervention in the late nineteenth and early twentieth centuries.36 In practice, however, European powers only undertook such interventions in the affairs of the Ottoman Empire, a state whose position in the family of “civilized” nations was anomalous. Nevertheless, these examples point to a prevailing belief that, at least in some instances, the society of states could rightfully act to enforce the responsibility of sovereigns to protect those within their territories.

The United States and Humanitarian Intervention The idea of intervention to protect peoples from immense suffering also found expression across the Atlantic at the turn of the twentieth century. In the early years of the nineteenth century, the United States had developed a doctrine of nonintervention in the affairs of sovereign states.37 As secretary of state in 1821, John Quincy Adams had famously declared: Wherever the standard of freedom and independence has been or shall be unfurled, there will her [America’s] heart, her benedictions and her prayers be. But she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.38

Two years later, President Monroe had established a doctrine proclaiming that the Western Hemisphere was off limits to European intervention.39 In the last years of the nineteenth century, while it continued to oppose European intervention in the region, the United States began to shift its position

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in favor of intervention by itself in instances where neighboring sovereigns failed to fulfill the obligations of statehood. At the forefront of the shift in the American approach to intervention was Theodore Roosevelt.40 Before becoming president, Roosevelt argued sternly for the legitimacy of military force against sovereign states that had failed to protect their own people. He claimed to have “most severely criticized the European powers for not interfering on behalf of the Armenians” during the Turkish pogroms (a criticism he would later extend to his own President Wilson during the First World War).41 And he believed that America’s “duty to humanity” required it to intervene on behalf of its own neighbors who were suffering under irresponsible governments. On the suffering witnessed in Cuba at the hands of Spanish authorities in 1898, he declared: It seems to me that in the first place our duty to humanity requires that we should interfere on behalf of the Cubans, and, in the second place, that it is obviously for the interest of our people as a whole that we should decline longer to allow this hideous welter of misery at our doorsteps and that we should drive the Spaniard from the new world.42

The United States did intervene in Cuba under President McKinley that year. The intervention followed reports of atrocities committed by Spanish authorities attempting to suppress an insurrection that had begun in 1895. Some reports were exaggerated by the “yellow” sensationalist journalism of the US press. Nevertheless, an estimated two hundred thousand Cubans had died in concentration camps that had been established by Spanish authorities in order to identify revolutionaries.43 The catalyst for the intervention was the destruction of the US battleship Maine, which was attributed to a Spanish mine. In his special Message to Congress in April 1898, McKinley partly justified the intervention on the grounds of “the cause of humanity.” He spoke of the need “to put an end to the barbarities, bloodshed, starvation, and horrible miseries now existing there, and which the parties to the conflict are either unable or unwilling to stop or mitigate.” Sovereignty was not considered an obstacle to intervention: “It is no answer to say this is all in another country, belonging to another nation, and is therefore none of our business. It is specially our duty, for it is right at our door.”44 However, McKinley also stressed that “the right to intervene may be justified by the very serious injury to the commerce, trade, and business of our people.”45 He suggested that intervention was necessary for the protection of US citizens and property and of US commercial interests and national security.46 Congress passed a joint resolution authorizing intervention on the basis of “the



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abhorrent conditions which . . . have shocked the moral sense of the people of the United States, [and] have been a disgrace to Christian civilization.”47 The mixed motives of the United States have led some scholars to resist characterizing the case as a humanitarian intervention. Michael Walzer, for example, suggests that it “might be taken as an example of benevolent imperialism given the ‘piratical times,’ but it is not an example of humanitarian intervention.”48 Nevertheless, the intervention is an example of a sovereign being held to account internationally for its oppression of those over whom it exercised authority. Moreover, it is worth noting that, while the intervention did not occur within Europe, the sovereign authority being called to account was a “civilized” European state—Spain. Commenting on the intervention in 1900, French jurist Albert de Lapradelle concluded “that States are sovereign, that sovereignty . . . has its limits . . . in international law . . . in the fundamental rights of humanity.”49 As president, Roosevelt clearly articulated his doctrine of international police power in defense of humanity. In 1904, he informed Congress: Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in America [i.e., the Western Hemisphere], as elsewhere, ultimately require intervention by some civilized nation, and in the western hemisphere the adherence of the United States to the Monroe Doctrine may force the United States however reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of an international police power.50

This was the Roosevelt Corollary to the Monroe Doctrine. As Roosevelt’s secretary of state Elihu Root explained, the United States had a “right to protect” Central and South American republics from the aggression of European powers, but in order to ensure that European powers had no need to interfere, the United States also had an “obligation of civilization to ensure that right and justice are done by these republics.”51 Root expressed these principles in terms of sovereign responsibilities: All sovereignty in this world is held upon the condition of performing the duties of sovereignty. In the parliament of man the rights of the weakest state are recognized; the right of the sovereign ruler or the sovereign people to be protected against aggression is recognized and protected by the common influence of mankind. But that right is held upon the condition that the sovereign ruler or the sovereign people performs the duties of sovereignty; that the citizens of other powers are protected within the

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territory; that the rules of international law are observed; that national obligations are faithfully kept.52

Root also tied these responsibilities to the “standard of civilization” that had emerged as a doctrine of international law. In an address to the American Society of International Law in 1910, he suggested that it was settled in international law that states had an international obligation to protect foreign nationals just as they had an obligation to protect their own citizens in accordance with “the established standard of civilization.”53 In sum, sovereignty was held to be conditional upon the performance of sovereign duties to protect citizens and foreign nationals. Those states that failed to uphold these responsibilities were considered legitimate targets for intervention. Only a few years later, speaking of a European great power, Secretary of State Robert Lansing would declare that “the essence of sovereignty was the absence of responsibility.”54 The contrast is striking. It points to the hierarchical nature of the international system in which the sovereignty of “civilized” European powers was felt to imply, at least to some extent, freedom from international accountability, while the sovereign rights of non-European states were held to be conditional upon the performance of duties of “civilization.” It provides some indication of the tensions within the concept of sovereignty that would become clearer in the second half of the twentieth century as the distinction between civilized and uncivilized was discredited and full membership in the society of states was universalized. That is the subject of the next chapter. The present chapter now briefly examines the “standard of civilization” that imposed responsibilities on those states seeking recognition as fully sovereign members of the family of “civilized” nations.

The Standard of Civilization During the nineteenth and early twentieth centuries, the European powers restricted membership in the family of nations, and the rights and duties of international law that attended such membership, to “civilized” states.55 Those states that wished to be (re)admitted into the family would only be so admitted on the family’s own terms. T. J. Lawrence put the matter succinctly in 1895: The area within which the law of nations operates is supposed to coincide with the area of civilization. To be received within it is to obtain a kind of international testimonial of good conduct and respectability; and



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when a state hitherto accounted barbarous desires admission, the leading powers settle the case upon its merits. In addition to the attainment of a certain, or rather an uncertain, amount of civilization, a state must have possession of a fixed territory before it can obtain the privilege of admission into the family of nations.56

In his classic study, Gerrit Gong observes that the “standard of civilization” emerged as a response to two problems. The practical problem was how to ensure the protection of the life, liberty, and property of European nationals in “uncivilized” non-European states. The philosophical problem was how to determine which states deserved recognition as full members of the family of “civilized” nations.57 The standard initially served as a response to the first problem. Extraterritorial provisions in the form of unequal treaties imposed on Japan, China, and other states in East Asia and capitulations imposed on the Ottomans were thought to be justified until these states could guarantee certain minimum requirements of “civilization.” As we have seen with respect to the Ottomans, it was assumed that those states that failed to meet this standard could not fruitfully bear the same rights of nonintervention and freedom from outside interference that were increasingly enjoyed by “civilized” European states. In article 1 of the Anglo-Japanese Alliance of 1902, for example, the governments of Great Britain and Japan mutually recognized the independence and territorial integrity of China and Korea, while at the same time claiming a right of “intervention . . . for the protection of the lives and property of its subjects” in the event of disturbances within these states.58 As a response to the philosophical problem outlined by Gong, the standard then specified the requirements necessary for non-European countries to be recognized as “civilized” states, and thus it “became an integral part of the doctrines of recognition prevailing in international law.”59 We can find some hints toward the development of this standard in recognition practices of the first half of the nineteenth century. When justifying British recognition of the sovereignty of several Spanish American republics that achieved independence in 1825, Foreign Secretary Canning made clear that international recognition gave rise to international responsibilities. “All political communities,” he declared, “are responsible to other political communities for their conduct: that is, they are bound to perform the ordinary international duties, and to afford redress for any violation of the rights of others by their citizens or subjects.” Since Spain no longer had effective control over its former colonies, he argued, Britain had no choice but “to recognize in due time their political existence as states, and thus bring

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them within the pale of those rights and duties, which civilized nations are bound mutually to respect and are entitled reciprocally to claim from each other.”60 When considering the prospective recognition of Greece the following year, Canning added that demonstration of capability to perform these international responsibilities was itself a requirement for recognition. Britain would be favorably disposed to recognizing Greece, he suggested, provided that the secessionist state “shall have shown itself substantially capable of maintaining an independent existence, of carrying on a Government of its own, of controlling its own military and naval forces, and of being responsible to other nations for the observance of international laws and the discharge of international duties.”61 By the end of the century, such principles, vague as they were, that must be met for an independent state to be granted recognition as a fully sovereign member of the family of nations had become widely accepted as principles of international law. The emergence of Japan as a “civilized” state at the turn of the twentieth century was central to the establishment of the standard in law.62 In contrast to some other non-European states, Japan consciously used the standard to direct its transition from a “semi-civilized” state subject to “unequal treaties” to a recognized “civilized” power. Japan strove to comply with the standard by revising its domestic laws, adhering to international law, and engaging in European-style diplomacy.63 (Shogo Suzuki argues that Japan additionally sought to attain “civilized” status by engaging in imperialist behavior toward its Asian neighbors because it “saw the adoption of coercive policies towards ‘uncivilized’ states as an inherent part of a ‘civilized’ state’s identity.”)64 By 1904, Henry Wheaton could conclude that it was “impossible to dispute [Japan’s] right to rank among the powers who are, without reservation, subject to international law.”65 The following year, Oppenheim enthusiastically concurred: “Through marvellous efforts, Japan has become not only a modern State, but an influential Power. Since her war with China in 1895, she must be considered one of the Great Powers that lead the Family of Nations.”66 Japan’s efforts to conform to the standard’s requirements made it necessary for the standard to be articulated in concrete legal terms. Oppenheim specified three conditions for admission into the family of nations: A State to be admitted must, first, be a civilised State which is in constant intercourse with members of the Family of Nations. Such State must, secondly, expressly or tacitly consent to be bound for its future international conduct by the rules of International Law. And, thirdly,



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those States which have hitherto formed the Family of Nations must expressly or tacitly consent to the reception of the new member.67

To be considered a “civilised State,” Oppenheim added, the state and its subjects must be able “to understand and to act in conformity with the principles of the Law of Nations.”68 By the beginning of the twentieth century, then, the “standard of civilization” had been established as a doctrine of recognition in international law applicable to non-European countries seeking to enter the family of “civilized” nations. However, it was a fairly subjective and elastic doctrine. Gong reports that “civilization” was understood to entail the guarantee of basic rights, especially the rights of foreign nationals, the existence of an organized political bureaucracy, and demonstration of a capacity to adhere to accepted diplomatic practices and the principles of international law. But it also entailed a vague expectation that “members of the same society of ‘civilized’ states would share sufficiently in fundamental, underlying assumptions about the world; in customary, historically proven institutions; and in ordinary, everyday life-styles, so as to feel part of a common society and a shared civilization.”69 Gong cautions that “the standard was never much more than a fairly blunt instrument. Even after it emerged as an explicit legal concept, the standard was still subject to the admixture of contrasting elements—political and legal, subjective and objective, explicit and implicit—associated with any doctrine of recognition.”70 The subjective requirements of the standard in particular were only ever “implicit” and “unspoken assumptions.”71 Nevertheless, for all its subjective qualities, the application of the standard in this period evinces the willingness of an expanding society of states to impose obligations on those who wished to be recognized as fully sovereign members. Scholarship that identifies new manifestations of the “standard of civilization” in contemporary international society has become increasingly common in recent years.72 Parallels have repeatedly been drawn between the standard and present-day notions of “sovereignty as responsibility.” While the comparison should not be overdrawn, consideration of the standard does reveal that, even while Europeans were strongly emphasizing their own rights to national self-determination in the early twentieth century, they were attaching responsibilities to sovereign recognition at least in their relations with the non-European world. This chapter now turns from those responsibilities imposed upon sovereign states on the fringes of the “civilized” world to the intimate ties

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between authority and responsibility constructed by Europeans with respect to “barbaric” peoples understood to be well beyond that world. In the colonial encounter, we find the responsibilities of authority clearly articulated not only in justifications for the denial of self-government to native peoples but also in the abolition of the slave trade and in the institutionalization of “trusteeship.”

The Abolition of the Slave Trade While some have claimed that abolition was motivated primarily by economic concerns, there is growing consensus that the slave trade was suppressed for normative reasons.73 Indeed, even Krasner accepts that the British commitment to end the practice of slavery can be explained by “largely ideational rather than material reasons.”74 Enlightenment thinkers who spoke of the rights of man and the liberty of peoples had a difficult time reconciling such notions with the institution of slavery. Many argued against the institution. Rousseau, for example, claimed that “however we look at the question, the ‘right’ of slavery is seen to be void; void, not only because it cannot be justified, but also because it is nonsensical, because it has no meaning. The words ‘slavery’ and ‘right’ are contradictory, they cancel each other out.”75 The year before the Declaration of Independence, Thomas Paine called upon Americans to consider “With what consistency, or decency they complain so loudly of attempts to enslave them, while they hold so many hundred thousands in slavery; and annually enslave many thousands more, without any pretence of authority, or claim upon them?”76 British and American Quakers and evangelicals argued against slavery on the grounds that it was inconsistent with Christian principles. Anthony Benezet asserted that slaves were “undoubtedly” the “children of the same Father . . . for whom Christ died.” Granville Sharp suggested that “slavery was ever detestable in the sight of God.”77 Popular support for these arguments undermined the legitimacy of the slave trade. Britain played a key role both in providing an example of abolition domestically and in building support for abolition internationally. Opposition to the trade within Britain began as a popular movement, and it quickly grew in strength in the late eighteenth century. By the 1780s, according to one historian, “the content of received wisdom had so altered . . . that educated men and the political nation, provided they had no direct interest in the slave system, would be likely to regard slavery and the slave trade as morally condemned, as no longer philosophically defensible.”78 The identi-



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fication of abolitionism with popular radicalism proved to be a setback for those in Britain promoting the cessation of the trade in the 1790s. However, abolitionists kept pushing for change. Eventually, in 1807, the British Parliament passed a bill that denounced the slave trade as “contrary to the principles of justice, humanity and sound policy” and prohibited British subjects from participating in it.79 Britain’s initial efforts to eradicate the trade internationally, during the Napoleonic Wars, involved the search and seizure of slave ships by the British navy and the subsequent condemnation of those ships by British courts. Such actions were justified on grounds that slavery was prohibited under natural law. After the Napoleonic Wars, the British government acknowledged that there was no unilateral right to search and seize slave ships under international law, and its natural-law rhetoric gave way to efforts to develop a body of positive law providing for the suppression of the trade through multilateral and bilateral treaties with the other Atlantic maritime powers.80 At Vienna in 1815 the charge against the slave trade was led by Castle­ reagh.81 After considerable negotiations, the delegates agreed to acknowledge that the slave trade was “repugnant to the principles of humanity and universal morality” and that “at length the public voice, in all civilized countries, calls aloud for its prompt suppression.” They proclaimed “in the name of their Sovereigns, their wish of putting an end to a scourge, which has so long desolated Africa, degraded Europe, and afflicted humanity.” However, shifting the blame from the European sovereigns to their subjects, the delegates noted that each of the signatory states had subjects with different interests and prejudices with respect to the trade and therefore insisted “that this general Declaration cannot prejudge the period that each particular Power may consider as most advisable for the definitive Abolition of the Slave Trade.”82 Certainly the agreement made no mention of the enforcement of abolition, and yet it established a principle that could not be readily ignored. According to one account: Words could not sweep Spain, Portugal and France to immediate abolition, but a document could nail down the gains which had been made. Signing the declaration implied not only an eventual intention to prohibit the commerce, but acceptance that abolition was an issue of international concern, specifically because it was of humanitarian interest. Although no country was bound to end the traffic, neither could any reject diplomatic initiatives concerning it as interference in domestic affairs.83

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Over the next few years, Britain successfully negotiated numerous bilateral treaties that not only banned the trade but provided for enforcement measures through international “courts of mixed commission.”84 By the 1840s, all the Atlantic maritime powers had signed international treaties that committed them to abolishing the trade. Whereas in the first decade of the nineteenth century an estimated 609,000 slaves had been transported to the New World, by the late 1860s the trade had been reduced to only a few hundred per year.85 The illegality of the trade was confirmed by the society of states in the final decades of the nineteenth century. In 1885, each of the signatory states to the General Act of the Conference of Berlin recognized that “trading in slaves is forbidden in conformity with the principles of international law” and bound itself “to employ all the means at its disposal for putting an end to this trade and for punishing those who engage in it.”86 Five years later, the society of states elaborated on this declaration in the General Act for the Repression of the African Slave Trade signed in Brussels. Signatory states declared their “firm intention of putting an end to the crimes and devastations engendered by the traffic in African slaves, of efficiently protecting the aboriginal population of Africa, and of securing for that vast continent the benefits and peace of civilization.”87 They bound themselves to take practical action to repress the trade, to punish offenders, and to liberate and protect captured slaves. Nineteenth-century efforts to abolish the slave trade, therefore, saw the firm establishment in international treaty law of the idea that the protection of the rights of individuals was a legitimate matter of international concern. Through a well-developed body of treaties, the society of “civilized” nations declared that sovereignty did not prevent international legal action in response to the denial of the “rights of humanity.” The process of abolition can be described as one in which sovereign states accepted a responsibility to refrain from participating in the slave trade. Moreover, as abolition became increasingly institutionalized at the international level, states began to accept not only a responsibility to refrain from the trade but a responsibility to protect its victims. By 1890, this responsibility was explicitly tied to the acknowledged civilizing mission of the colonial powers. Signatories to the Brussels Act linked abolitionism to the protection of Africans and the export of “the benefits of peace and civilization.”88 This connection is worth pondering. During the second half of the eighteenth century, antislavery sentiment was commonly tied to anti-imperialism. As Jennifer Pitts notes, eighteenth-century critics of empire tended to perceive clear links between the immorality of the slave trade and the injustices of imperial expansion. By the mid-nineteenth



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century, however, liberals such as Mill took for granted that slavery ought to be abolished but embraced imperial expansion as a device for bringing “civilization” to “backward” peoples. Indeed the abolition of the slave trade confirmed for Europeans their moral superiority and, in turn, their obligation to extend the benefits of “civilization” to others.89 It is to this idea of a sacred duty to promote “civilization” through empire and trusteeship that I now turn.

Colonialism From the revolutions of the late eighteenth century to the Paris Peace Conference in 1919, the right of peoples to self-determination was gradually established within European international society. However, this right was not extended beyond Europe. A significant proportion of humanity was excluded from this process on the grounds that they did not yet have the capacity to govern themselves. Only civilized peoples, it was argued, had the capacity for self-government and, therefore, to enjoy the rights and responsibilities of sovereign statehood. Even some Enlightenment thinkers that had argued for the universal rights of peoples had accepted that not all nations were capable of enjoying the fruits of liberty. Montesquieu observed, “Liberty itself has appeared insupportable to those nations who have not been accustomed to enjoy it.”90 Rousseau similarly claimed: “For nations, as for men, there is a time of maturity which they must reach before they are made subject to law.”91 In the nineteenth century, the distinction between civilized and uncivilized peoples provided the grounds for Europeans to determine which peoples were able to carry out the responsibilities of sovereign self-government and which could be legitimately subject to colonization.92 This idea that the enjoyment of sovereignty should be conditional upon peoples having developed a capacity to govern themselves responsibly was central to justifications for colonialism until as late as the 1940s and 1950s.93 However, while the distinction between civilized and uncivilized peoples may have been understood to justify colonialism, it was not perceived to justify domination and exploitation. Those uncivilized peoples that did not have the capacity to govern themselves, it was argued, ought to be governed for their benefit. Colonialism had been portrayed as a civilizing mission since the Spanish encounter with the Americas in the fifteenth and sixteenth centuries.94 Juan Ginés de Sepúlveda, a firm defender of Spanish imperialism, had argued for “a right to conquer in order to civilize.”95 Vitoria was much more reluctant to provide express support for Spanish

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dominion in the New World but acknowledged, “merely for the sake of argument,” that if the barbarians were in fact incapable of managing their own affairs, the Spanish could lawfully exercise authority over them so long as “everything is done for the benefit and good of the barbarians, and not merely for the profit of the Spaniards.”96 In the late eighteenth century, some thinkers applied this idea that authority should always be exercised for the benefit of subjects to critique the practice of European imperialism. Condemning the mistreatment of native peoples in British India in 1783, for example, Burke reminded Parliament that “all political power which is set over men . . . ought to be some way or other exercised ultimately for their benefit.”97 Subsequent thinkers, however, tended to offer such arguments to justify imperialism. It was for the benefit of backward societies, they claimed, that they be ruled by more advanced peoples and guided toward civilization. Mill, who was himself employed by the British East India Company from the age of seventeen until the British government assumed direct rule over India in 1858,98 made the case with typical conviction: Nations which are still barbarous have not got beyond the period during which it is likely to be for their benefit that they should be conquered and held in subjection by foreigners. Independence and nationality, so essential to the due growth and development of a people further advanced in improvement, are generally an impediment to theirs.99

In On Liberty, Mill restricted his scheme for minimal interference by the state in the lives of individuals to “human beings in the maturity of their faculties.” Such a scheme, he insisted, could not be applied to children or to “those backward states of society in which the race itself may be considered as in its nonage.”100 Uncivilized peoples could be rightly made subject to despotic rule, Mill declared, but the objective of such rule must always be their advancement toward civilization: “Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.”101 In 1883, James Lorimer put this justification of the civilizing rule of imperial powers in even more brazen terms: The moment that the power to help a retrograde race forward towards the goal of human life consciously exists in a civilized nation, that civilized nation is bound to exert its power; and in the exercise of its power,



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it is entitled to assume an attitude of guardianship, and to put wholly aside the proximate will of the retrograde race. Its own civilization having resulted from the exercise of a will which it regards as rational, real, and ultimate, at least when contrasted with the irrational, phenomenal, and proximate will of the inferior race, in vindicating its own proximate will, it is entitled to assume that it vindicates the ultimate will of the inferior race—the will, that is to say, at which the inferior race must arrive when it reaches the stage of civilization to which the higher race has attained.102

In the seventeenth century, Locke had claimed that governments held their power merely as trustees; governors were entrusted with authority for the end of protecting the “safety and security” of the sovereign people.103 In the nineteenth century, this idea of “trusteeship” was applied to the despotic, civilizing rule exercised by imperial powers. Each of the European imperial powers acknowledged that dominion entailed a responsibility to promote the benefits of civilization, and each was certain of its own “unique fitness for acting as trustees of civilization.”104 However, while for Locke the idea of trusteeship entailed accountability to the people, the colonizing powers denied that they were accountable to anyone but themselves. They certainly were not about to submit their rule to the will of their colonial subjects, and they were similarly reluctant to submit their treatment of these subjects to international scrutiny. Eighteenth-century critics of imperialism had insisted that political authority always needed to be accountable, or it would eventually be abused. Burke had claimed: “Every species of political dominion . . . are all in the strictest sense a trust; and it is of the very essence of every trust to be rendered accountable; and even totally to cease, when it substantially varies from the purposes for which alone it could have a lawful existence.”105 It would be another hundred years, however, before the European powers confirmed the responsibilities of trusteeship in international law and began to develop measures of international accountability. The idea of trusteeship was internationalized in the Berlin Act of 1884–85 and subsequently institutionalized in the form of the mandates system at the Paris Peace Conference after the First World War.106 In these international agreements, it was established that the protection of the interests and well-being of subject peoples was a legitimate matter of international concern. By 1930, Quincy Wright could conclude that there had developed over the preceding four centuries “a sense of responsibility toward the world for the just

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government of subject territories and their native inhabitants.” He declared that “dependencies have ceased entirely to be a right of the imperial state but have become a responsibility, a trust of civilization, the white man’s burden.”107

The Berlin Act and Leopold’s Congo The Berlin Conference of 1884–85 is most often associated with the partition of Africa by European powers. However, it also marks the internationalization of the idea that colonizing states had a responsibility for the protection and improvement of native populations. The European subjection of Africa was commonly justified on the grounds that it served a dual purpose. It was held that the Europeans could serve both their own interests and the interests of Africans by opening up the continent to facilitate both free commerce and the improvement of the natives.108 The Berlin Conference sought to provide for both these ends. Bismarck indicated as much in his speech that opened the conference: In convoking the Conference, the Imperial Government was guided by the conviction that all the Governments invited share the wish to bring the native of Africa within the pale of civilization by opening up the interior of that continent to commerce, by giving its inhabitants the means of instructing themselves, by encouraging missions and enterprises calculated to spread useful knowledge, and by preparing the way for the suppression of slavery, and especially of the over-sea Traffic in blacks.109

In his opening speech, Britain’s representative Sir Edward Malet prioritized the protection of the welfare of the natives over commercial interests: I must not, however, lose sight of the fact that, in the opinion of Her Majesty’s Government, commercial interests should not be looked upon as the exclusive subject of the deliberations of the Conference. While the opening of the Congo markets is to be desired, the welfare of the natives should not be neglected; to them it would be no benefit, but the reverse, if freedom of commerce, unchecked by reasonable control, should degenerate into licence. I venture to hope that this will be borne in mind, and that such precautions will be adopted for the regulation of legitimate commerce as may tend to insure, as far as possible, that its introduction will confer



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the advantages of civilization on the natives, and extinguish such evils as the internal Slave Trade, by which their progress is at present retarded. I cannot forget that the natives are not represented among us, and that the discussions of the Conference will, nevertheless, have an extreme importance for them. The principle which will command the sympathy and support of Her Majesty’s Government will be that of the advancement of legitimate commerce, with security for the equality of treatment of all nations, and for the well being of the native races.110

The General Act that resulted from the conference declared the wish of the signatory states “to regulate the conditions most favorable to the development of trade and civilization in certain regions of Africa.” In article VI, states committed themselves to the “improvement” of the “well-being” of the natives and established the goal of extending to them the “blessings of civilization”: All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific, or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization.111

By all accounts, the Berlin Act led to actions by the imperial powers, motivated by commercial interests, that harmed native interests and welfare more than they protected them.112 Nevertheless, the act established in international law the responsibility of trusteeship that states had with respect to their colonized subjects; it established that the treatment of natives by those in authority over them was a legitimate matter of international concern.113 The story of the Congolese Free State is perhaps the best-known example of the failure of the Berlin Act to protect African natives.114 However, if we follow the tale through to its conclusion we find that it is also an example of a sovereign eventually being held to its newly internationalized responsibilities. Before the Berlin Conference, King Leopold II of Belgium had asked European states to allow him to administer the Congo as a “noble trust for all civilization.” By the closing of the conference, Leopold’s

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International Association of the Congo was recognized as sovereign over the Congolese Free State. It was agreed that Leopold’s professed mission embodied the very principles that the conference was trying to establish. The Italian delegate declared: “The whole world cannot fail to exhibit its sympathy and encouragement on behalf of this civilizing and humane work which does honor to the nineteenth century, from which the general interests of humanity profit, and will always continue to derive further advantage.”115 After the conference, however, Leopold quickly started building a system of compulsory labor and wealth extraction. His rule was marked by brutal and horrific atrocities committed against the Congolese people as he plundered their resources. Uprisings were met with massacres of whole villages, the notorious severing of hands, and the destruction of native cattle and crops. As many as 8–10 million Congolese died as a result of Leopold’s brutality.116 Recalling the Berlin Conference, E. D. Morel, the founder of the Congo Reform Association, would lament: “From the ashes of an international conference, summoned in the name of Almighty God, has sprung a traffic in African misery more devilish than the old, more destructive, more permanently ruinous in its cumulative effect.”117 The Congo Reform Association led the way in lobbying the British and American governments to pressure the Belgian government to act. Eventually, in 1908, international condemnation and diplomatic demands saw Leopold’s Congolese Free State replaced by the Belgian Congo, a colony administered by the Belgian government. However, Britain refused to recognize the Belgian annexation of the Congo for another five years.118 They declared their intention not to recognize the annexation until the obligations under article VI of the Berlin Act were fulfilled. The British recalled both Leopold’s declared purpose of promoting civilization within the Congo and Britain’s own humane purpose in recognizing the Congolese Free State. The British government therefore claimed a right of interference in order to ensure that these purposes were realized.119 Just two days after the Belgian parliament approved the annexation of Leopold’s Congo, the British government proposed plans for reform “to ameliorate the condition of the natives of the Congo.” It insisted that “no system can be allowed to operate so as to interfere with Treaty obligations to the prejudice of the moral and wellbeing of the natives.”120 William Bain informs us that the Belgian government quickly abandoned its initial claims of a right of noninterference and offered assurances that it would meet its obligations under international law and that its rule would be directed at achieving “an immediate amelioration in the moral and material conditions of existence of the inhabitants of the Congo.”121



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The atrocities committed in the Congo under Leopold’s rule certainly cast doubt on the extent to which the actions of colonizers were guided by their professed civilizing mission.122 In response to the claims of “high moral purpose” made by European powers, Morel cried: “ ‘Civilizing’ the African, forsooth! There was a pretty strong element of barbarism in Europe’s civilizing methods in Africa before the war.”123 However, Britain’s repeated invocation of the obligations of imperial powers under article VI of the Berlin Act and Belgium’s eventual acceptance of these obligations do reveal the emerging recognition within international society of the responsibility of sovereign states to protect colonized peoples. This responsibility to protect would be institutionalized by international society after the First World War in the form of the mandates system.

The Mandates System Woodrow Wilson’s belief in the right of peoples to choose their own government, examined in chapter 3, led him to declare that there would be “no annexations” of former German or Ottoman territories that Allied powers had occupied through the course of the war. In point five of his Fourteen Points speech of January 8, 1917, he demanded an “absolutely impartial adjustment of colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”124 Three days earlier, British prime minister Lloyd George similarly argued that the decision about the disposal of occupied German colonies “must have primary regard to the wishes and interests of the native inhabitants of such colonies.” However, while declaring the “general principle of national self-determination” to be “as applicable” to these colonies as it was to occupied European territories, Lloyd George made it clear that this did not mean sovereign independence: “The governing consideration . . . in all these cases must be that the inhabitants should be placed under the control of an administration acceptable to themselves, one of whose main purposes will be to prevent their exploitation for the benefit of European capitalists or governments.”125 Lloyd George did not elaborate further on what self-determination meant for these peoples, and Wilson’s first draft of the Covenant of the League of Nations did not mention the fate of these peoples at all.126 It was South African general Jan Smuts who first suggested the middle way between annexation and political independence that would come to be known as the “mandates system.”

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In a proposal entitled “The League of Nations: A Practical Suggestion,” Smuts argued that those peoples who formerly found themselves within the Russian, Austrian, or Ottoman empires “are mostly untrained politically; many of them are either incapable of or deficient in power of self-government; they are mostly destitute and will require much nursing towards economic and political independence.”127 Under the mandates system, Smuts argued, the future League of Nations would inherit the colonies of these former empires. The league would “nurse” these peoples to eventual independence. The former colonies would be granted rights to self-government and independence to the extent that they had the capacity to benefit from them. Some would require more “nursing” than others.128 Smuts acknowledged that joint international administration of territories or peoples had not worked well in the past. “The only successful administration of undeveloped or subject peoples,” he suggested, “has been carried on by states with long experience for the purpose.”129 For this reason he recommended that, while the administration of former colonies should be “subject to the supervision and ultimate control of the league,” in each case an individual state should act on behalf of the league and “the appointment of the necessary officials and the carrying on of the necessary administration should be done by this mandatory state.”130 The Smuts proposal suggested that the mandatory states should be nominated or approved by the peoples concerned and that these peoples should be able to present any grievances that they may have to the league. Smuts emphasized that these mandates entailed stern responsibilities. “The mandatory state,” he contended, “should look upon its position as a great trust and honor, not as an office of profit or a position of private advantage for it or its nationals.” Moreover, the league retained ultimate authority to ensure that these responsibilities were being carried out: “In case of any flagrant and prolonged abuse of this trust,” the League should “assert its authority to the full, even to the extent of removing the mandate, and entrusting it to some other state, if necessary.”131 The basic principles of Smuts’s proposed system were eventually agreed upon by international society. Former German colonies were included in the system and Russian colonies were omitted, but the central idea that mandatory states would exercise trusteeship on behalf of the League was accepted.132 The broad obligations of mandatory states were stated in article 22 of the Covenant of the League of Nations: To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly gov-



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erned them, and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.133

The mandatory states and the Council of the League of Nations entered into separate mandate agreements that established obligations in addition to those outlined in articles 22 and 23 of the covenant. These agreements were based on a general formula that the mandatory “shall undertake to promote to the utmost the material and moral well-being and the social progress of its inhabitants.”134 The Permanent Mandates Commission was established as a monitoring organ that would receive annual reports of the mandatories, accept petitions of grievance from subject peoples, and advise the council on matters relating to the observance of mandatory obligations. Through the actions of the commission, the obligations of trusteeship were given “more precise qualitative and quantitative measure.”135 Estimations of the success of the mandates system are typically marked by some ambivalence.136 Whether or not it achieved its stated goals, however, the system had a profound impact on the development of state sovereignty in two ways. First, much like the minority-rights regime that obtained within Europe, the mandates system institutionalized the responsibilities of statehood within international society.137 The Berlin Act had proposed that trusteeship entailed obligations toward subject peoples and that the well-being of these peoples was a legitimate matter of international concern. The mandates system now erected “international machinery” to ensure that these responsibilities of trusteeship were met. The responsibility of states to protect and “improve” peoples in their trust was confirmed, and so too was the idea that, in those cases where states neglect their obligations, the burden of responsibility shifts to international society. “What sharply distinguishes the Mandatory system from all such international arrangements of the past,” wrote Howard Temperley in 1920, “is the unqualified right of intervention possessed by the League of Nations. The mandatories act on its behalf. They have not sovereign powers, but are

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responsible to the League for the execution of the terms of the mandate.”138 The responsibilities found in the mandates system can be rightly understood as antecedents of both the international human-rights regime that emerged after the Second World War and the present-day “responsibility to protect” principle. The mandates system articulated internationally enforceable responsibilities of states with respect to the treatment of subject peoples within their trust.139 International society would later extend these responsibilities to include the treatment of individuals within the sovereign state itself. Just as mandatory authority was conditional upon the protection of subject peoples, international society would over time increasingly conclude that sovereign authority is conditional upon the protection of individuals within the sovereign’s territory. The second way in which the mandates system affected the development of sovereignty was by tying trusteeship to the principle of self-determination. The degree of autonomy granted to former colonies was proportional to their perceived capacity to govern themselves, and mandatory states were charged with the “tutelage” of subject peoples in order to develop this capacity. This desire to cultivate the capacity for self-government represented a substantial shift from the goals of the Berlin Act. One scholar has suggested that “self-government is the central positive conception set out in Article 22.” He interprets the article as meaning “trusteeship with independence as the goal of the trust.”140 It is for this reason that, while some portray the mandates system merely as the institutionalization of imperialism, others have interpreted it as an important historical step toward decolonization and the realization of sovereign statehood for once colonized peoples.141 Thus the mandates system can be understood as an antecedent both to the international promotion of human rights and to the establishment of a universal right of self-government. The next chapter will examine some of the tensions and contradictions inherent in such a legacy. In sum, the intimate relationship between authority and responsibility, a relationship that had been central to justifications for sovereignty since the sixteenth and seventeenth centuries, was institutionalized by international society in the mandates system. This system represents a clear antecedent of the idea that sovereign statehood entails responsibilities for the protection of the well-being and safety of subjects that can be rightfully enforced by the society of states. At the same time, the notion of trusteeship also hinted at eventual self-government. After the First World War, demands for the universalization of the right to self-government and independent statehood began to intensify beyond Europe. Strengthening the appeals for



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change was the fact that the distinction between civilized Europe and the uncivilized non-European world was beginning to collapse.

The Decline of the Idea of “Civilization” The idea of a distinction between “civilized” and “barbarian” that had underpinned European justifications for policies and practices with relation to the non-European world became increasingly unsustainable through the first half of the twentieth century. The “standard of civilization” as a doctrine of international recognition, for example, did not last for very long. By 1937, the editor of the fifth edition of Oppenheim’s International Law, Hersch Lauterpacht, could declare that “religion, or the controversial test of the degree of civilization have ceased to be, as such, a condition of recognition of statehood.”142 Ten years later he would even more categorically proclaim: “Modern international law knows of no distinction, for the purposes of recognition, between civilized and uncivilized States or between States within and outside the international community of civilized States.”143 A key reason for change was to be found in the barbarous actions of the Europeans themselves. In the late nineteenth century, international legal scholar Charles Salomon had presciently warned: “No word is vaguer and has been used to commit greater iniquities than the word ‘civilization.’ . . . Beware! The pretended right of civilization could serve to legitimize the gravest attacks, even in Europe.”144 Recognition of the evils committed by Europeans within Europe during the First and Second World Wars undermined their claims of civilizational superiority as well as the self-confidence that underpinned such claims.145 The “scientific” racism and social Darwinism that had justified distinctions between civilized and barbaric peoples were particularly discredited by the atrocities of the Nazis, who employed such distinctions within Europe itself. In Wight’s words, Hitler had his own colonial empire “in the very middle of Europe.”146 When asked what he thought of Western civilization, Mahatma Gandhi is famously said to have responded, “I think it would be a good idea.”147 In the face of European barbarism, the idea of the “civilizing mission” could not be sustained much longer. Colonialism, and the belief that it entailed a “sacred trust,” did persist for a short time after the Second World War. Chapters XI and XII of the UN Charter, agreed to at San Francisco in 1945, outlined principles of trusteeship under the new international organization. They reaffirmed the responsibilities that sovereign states had to protect the interests and well-being of

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subject peoples over whom they exercised a trust, and they established new international machinery for the enforcement of these responsibilities. However, these chapters also formally acknowledged for the first time that a goal of trusteeship was the progression toward self-government, if not independence. Within only a couple of decades, independence for most subject peoples had been achieved. The right of peoples to self-determination and sovereign statehood had been universalized. The reasons for these developments and their meaning for the rules of sovereignty cannot be understood outside of the context of the emergence of the idea of “human rights” during the Second World War. They are therefore examined in greater detail in the following chapter. h Sovereignty was very much shaped by European international society’s encounter with the non-European world.148 The dual legacy of this encounter, a complex legacy that would have a weighty influence on subsequent constructions of sovereignty’s rules, was the clear articulation and enforcement of sovereign responsibilities coupled with the development of a fervent desire among subject peoples for a sovereign state of their own and for unconditional rights to freedom from outside interference. In the practice of “humanitarian intervention,” the “standard of civilization,” and the institutionalization of trusteeship we find clear antecedents of the idea that sovereign authority entails responsibilities for the protection of subjects, responsibilities that may be rightfully enforced by the society of states. However, we also find clear evidence of racism, humiliation, and violence suffered by non-European peoples at the hands of Europeans, the memory of which has sustained demands for unconditional sovereign rights of selfgovernment and freedom from outside interference since the Second World War. Europeans were confident that they understood how less civilized people should be ruled and how their governments ought to be organized, and they were prepared to use violence and coercion to induce progress and eliminate barbarism. Their determination to regard despotic, “civilizing” rule as beneficial to backward peoples, however, too often prevented them from seeing how such rule could itself be vulnerable to terrible abuses and injustices.149 Consider, for example, the difference between the notion of “trusteeship” that was developed to justify colonial rule and the idea of “trusteeship” as employed in the popular-sovereignty arguments of theorists such as Locke. For Locke, trusteeship implied the consent of the governed and a right of the



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governed to remove trustees who failed to carry out their end of protecting the safety of the people.150 In contrast, while colonial powers claimed to be trustees, subject peoples were not understood to possess a right to resist or remove governors that mistreated them. While international society eventually obtained such a right in the early twentieth century, the people themselves did not. Even when trusteeship was exercised as intended, such powerlessness was a source of humiliation for subject peoples. And too often imperial powers abused their authority and committed atrocities against those in their trust. We will see in chapter 6 that memories of abusive interventionism, racist practices of recognition, and oppressive imperialism remain a powerful mobilizing tool for those resisting notions of sovereign responsibilities today. In the book’s conclusion, I will argue that this imperial legacy is one that advocates of the “responsibility to protect” need to engage with and that they ought not to continue to hide behind the mythical story they tell that obscures this problematic but crucial chapter of the history of sovereignty. For now, however, we need to continue to work our way through the twentieth century. Challenging the conventional English School history of a society of equal and independent states, Edward Keene contrasts what he describes as the “order of toleration” that obtained within Europe in the nineteenth and early twentieth centuries with the “order of civilization” that obtained in Europe’s relations with the non-European world in the same period. He then observes the tensions between these two orders that have subsequently been produced by the universalization of the society of states.151 While Keene may overstate the degree to which European international society allowed European sovereigns to behave as they wished during the nineteenth and early twentieth centuries, his observation is helpful. With the universalization of international society after the Second World War came increased tensions between assertions of sovereign rights of self-government and noninterference and demands for the international enforcement of the responsibilities of statehood. In other words, Secretary Lansing’s claim that sovereignty essentially entailed “the absence of responsibility” came head to head with Secretary Root’s insistence that legitimate statehood was conditional upon the performance of “the duties of sovereignty.” After the Second World War, this tension would be increasingly expressed as a tension between nonintervention and human rights. It is to the development of this tension that I now turn.

chapter five

Sovereignty after the Second World War

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he supposed “traditional” rules of sovereignty were firmly established in international law by the society of states for the first time only at the end of the Second World War.1 While it is often assumed that sovereignty has been defined in terms of indefeasible rights of self-government and freedom from outside interference since the Peace of Westphalia, international society did not unambiguously accord sovereigns these rights until the signing of the Charter of the United Nations at San Francisco in 1945. Moreover, as this chapter demonstrates, these rights of statehood were constructed in somewhat uneasy tension with provisions demanding respect for what were coming to be known as “human rights and fundamental freedoms.” Thus the tension between competing visions of sovereignty that had been hinted at since the American and French Revolutions was now established at the international level. As would be made clear in arguments for decolonization in the two decades after the Second World War, sovereignty was grounded in individual rights just as it had been for early theorists of popular sovereignty and the eighteenth-century revolutionaries. The right to sovereign independence was understood to be a universal human right and also a prerequisite for the enjoyment of other human rights. However, there were competing visions of what this ought to mean for the rules of sovereignty. Some argued that the protection of human rights could best be provided by sovereign peoples who were self-determining and free from external intervention. Others insisted that the enjoyment of freedom from intervention should be conditional upon the protection of those human rights upon which sovereignty was grounded. For the most part, the rules of nonintervention and noninterference prevailed through the course of the Cold War. In the General Assembly and 132



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the Security Council, international society repeatedly declared that states had an almost unconditional right to freedom from external interference and condemned states that breached this principle. International society was unwilling to countenance intervention even in response to extraordinary failures of sovereigns to protect the safety of their populations. In this relatively brief period in the history of sovereignty, then, we find for the first time clear international endorsement of the “traditional” meaning of sovereignty. Yet in this same period the society of states did increasingly recognize and codify sovereign responsibilities for the promotion and defense of the human rights of their populations. The protection of human rights was increasingly recognized as a responsibility of statehood that was a legitimate matter of international concern, although not enforcement.

The Emergence of Human Rights during the Second World War In his State of the Union message of January 6, 1941, President Franklin Delano Roosevelt set out a vision for a postwar world. Although the United States was not yet at war, it was confronted with the continuing successes of the aggressors and an ongoing absence of international security. The president believed that the United States could no longer remain isolated from global affairs. He spoke forcefully not only about American interests but about the need for the future peace to be founded on the protection of “freedom” worldwide. “In the future days, which we seek to make secure,” Roo­ sevelt proclaimed, “we look forward to a world founded upon four essential human freedoms.” These were freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear, and they were to be established “everywhere in the world.” While freedom from want and fear were expressed in terms of national freedoms, the others were freedoms to be enjoyed by individuals. Moreover, “freedom” was itself defined in terms of an expression that was only just beginning to be found in common use, “human rights.” “Freedom,” the president declared, “means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights or keep them.”2 In August 1941, Roosevelt met secretly with British prime minister Winston Churchill at Placentia Bay, Newfoundland, and after spending a number of days settling the text, they produced an eight-point document that came to be known as the Atlantic Charter. The charter declared a “hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford

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assurance that all the men in all the lands may live out their lives in freedom from fear and want.”3 The two leaders hoped that the document would establish a contrast between the allies and their adversaries and provide purposes and principles that could inspire the support of their people. However, the charter would take on a symbolic role well beyond these immediate aspirations. It shifted some of the focus from the rights of nations and placed it on the rights of individuals. As Elizabeth Borgwardt observes, the agreed-upon language “posited the individual as being in a relationship with a wider international order, and, by extension, implied that the individual was a legitimate object of international concern.”4 Around the world, the charter was read as a statement endorsing individual rights.5 More than thirty allied nations soon pledged their commitment to the realization of its vision.6 Four months after the Atlantic Charter was signed, and soon after the United States had entered the war, another document was produced as a result of a second major summit between Roosevelt and Churchill. On January 1, 1942, twenty-six states fighting the Axis agreed to sign the Declaration of the United Nations.7 The United States, Britain, the Soviet Union, and China joined with other states in affirming the program of purposes and principles outlined in the Atlantic Charter. Then, announcing that “they are now engaged in a common struggle against savage and brutal forces seeking to subjugate the world,” they pledged “to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.”8 This was the first time that the term “human rights” featured in a formal statement of Allied war aims. Perhaps most significant is the implication that human rights should be enforced not only domestically but internationally. Borgwardt finds in this declaration the “transformation of the label ‘human rights’—from a set of narrow, domestic ideas about civil rights into a broader, internationalized vision of fundamental freedoms.”9 Ideas about an international order founded on principles of human rights were developed not only by states but also by individuals and nonstate bodies through the course of the war.10 Visions of international human rights proposed by Allied states and their citizens had some immediate benefits for the war effort. The Allies were able to establish a clear distinction between themselves and their “savage and brutal” enemies and provide purposes and principles to inspire their peoples to make sacrifices. However, such discussions also shone a light on some of the Allied states’ abuses of individual rights in their own backyards—not least in the United States—as well as raising international expectations that might not be able to be met.



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Clear tensions began to emerge between the idea of the international promotion of human rights and the prevailing understanding of sovereignty.11 Allied governments were confronted with these tensions as they began to develop plans for the postwar world. In the United States, human rights were the subject of careful consideration within the Advisory Committee on Postwar Foreign Policy that Roosevelt created. A subcommittee charged with considering the creation of a future international organization drew up proposals for articles and bills of rights that could be incorporated in this organization’s charter. As one official noted, such measures were designed to “facilitate the attainment of the Four Freedoms by all persons, and to prevent internal unrest and international tension arising from violations of individual rights.”12 Human rights, it was increasingly believed, were essential to the future peace. However, the subcommittee was reluctant to recommend provisions that might challenge the domestic jurisdiction of states. One draft bill, dated December 3, 1942, stated: “These human rights shall be guaranteed by and constitute a part of the supreme law of each state and shall be observed and enforced by its administrative and judicial authorities.”13 Human rights were only to be enforced at the state level. As one internal evaluator commented in 1943, the international enforcement of humanrights provisions would be “out of the question at the present time.”14 By 1944, then, there had emerged an understanding among the Allies that human rights would need to be secured around the world if the goal of a peaceful postwar order was to be realized, just as negotiators at Westphalia and Versailles had earlier understood the protection of religious- and national-minority rights, respectively, to be a condition for peaceful international order. “By promoting the cause of human rights,” many now believed, “harmony would be restored, and the emergence of destabilizing regimes would be prevented. In short, human dignity was the essential prerequisite for a peaceful world.”15 Moreover, the idea of human rights had now developed its own momentum, which leaders would struggle to ignore. Brian Simpson concludes that “the idea that the war had been about the protection of the rights of individuals, originally little more than a rhetorical adornment, was coming home to roost.”16 And yet the desire for the international promotion of these rights ran up against the prevailing rules of national sovereignty. Competing visions of legitimate statehood that had been hinted at since the American and French Revolutions—one that prioritized the right to self-government and freedom from outside interference and another that prioritized the protection of individual rights—were beginning to be clearly expressed. These competing visions would soon be, to some extent at least, enshrined in the Charter of the United Nations.

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The Drafting of the United Nations Charter At the Dumbarton Oaks meetings in 1944, the United States pushed for the right of nonintervention to be explicitly conditional upon the performance of a sovereign duty to protect human rights. Ultimately, however, the provisions for human rights agreed to at these meetings amounted to very little. Provisions for the protection of human rights were significantly strengthened at the San Francisco Conference the following year. However, the rights of states to self-government and freedom from intervention—the supposed “traditional” rights of sovereignty—were also firmly established at this conference. This section examines these developments in detail and concludes by considering the tension between human rights and state rights established in the charter.

Dumbarton Oaks For seven weeks, from August to October 1944, the representatives of the United States, Britain, the Soviet Union, and, eventually, China met in Dumbarton Oaks, in Washington, DC. Here they drew up the first multilateral draft of what would become the United Nations Charter. Since the Soviets objected to Chinese participation in the planning conversations, the first five weeks of negotiations included only the United States, Britain, and the Soviet Union. During these weeks, it was the Americans who led the way in trying to ensure that international human rights were provided for in the charter. On September 9, State Department official Benjamin Cohen put forward a draft paragraph that attempted to combine the demands for human rights with the protection of domestic jurisdiction: The International Organization should refrain from intervention in the internal affairs of any state, it being the responsibility of each state to see that conditions prevailing within its jurisdiction do not endanger international peace and security and, to this end, to respect the human rights and fundamental freedoms of all its people and to govern in accordance with the principles of humanity and justice.17

The British and Soviets rejected this proposal. British representative Alexander Cadogan expressed concerns that it could be read as allowing the future organization to criticize states for not respecting “human rights and fundamental freedoms.” Soviet ambassador Gromyko added that “it was



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his personal opinion that the reference to human rights and basic freedom is not germane to the main tasks of an international security organization.”18 Eleven days later, the United States again pressed for the inclusion of a paragraph on human rights in the charter. This time, the sovereign right of nonintervention was framed to be explicitly conditional upon states fulfilling their human-rights responsibilities: It is the duty of each member of the Organization to see to it that conditions prevailing within its jurisdiction do not endanger international peace and security and, to this end, to respect the human rights and fundamental freedoms of all its people and to govern in accordance with the principles of humanity and justice. Subject to the performance of this duty the Organization should refrain from intervention in the internal affairs of any of its members.19

The Americans told the British and the Soviets that “they would be subject to great criticism at home” if some reference to “human rights and fundamental freedoms” was not included in the charter.20 However, the British were again reluctant to accept the US proposal. The Soviets suggested that they would accept it “provided it were coupled with a provision that Fascist or fascist-type states could not be members of the organization.”21 Neither Cadogan nor US under secretary of state Edward Stettinius could agree to this provision. The potentially groundbreaking paragraph relating to human rights and fundamental freedoms was eliminated from the draft charter.22 Ultimately, the Dumbarton Oaks proposals contained only a single reference to human rights, and here they were merely stated to be a responsibility of the Economic and Social Council.23 Like the Covenant of the League of Nations, the Dumbarton Oaks proposals provided some insurance for the right to self-government and freedom from interference by way of a domestic-jurisdiction exception in the section on the peaceful settlement of disputes. Sovereign states were also protected by a provision for the right of freedom from forcible intervention.24 Nothing more than this was considered necessary, since the overall proposals presented very little by way of a threat to state sovereignty. The Chinese phase of the Dumbarton Oaks conversations did not change the proposals in any way. In 1942, China had declared its willingness “to cede as much of its sovereign power as may be required” in order for an international organization to be able to enforce international justice.25 Before the Dumbarton Oaks conversations had begun, China had proposed that the new organization uphold “the principle of equality of all states and all

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races.”26 As soon as they began their direct participation in the conversations, the Chinese complained that “nothing was said about justice” in the proposals. Nevertheless, the other powers made it clear that they did not support any of the changes suggested by the Chinese delegation along these lines.27

Human Rights in the Charter Eight months later, on June 26, 1945, the United Nations Charter was signed in San Francisco. This document was notably different from that proposed at Dumbarton Oaks. Both human rights and the principles of self-government and noninterference were more firmly established as central to the purposes and principles of the new international organization. The causal explanation for the increased provisions for human rights particularly remains a matter of some debate. It seems reasonable to say that it was the demands and desires of quite a large number of actors that led to the strengthening of the provisions for the rights of individuals in the charter. Paul Lauren reports that the fact that the Dumbarton Oaks proposals had buried human rights in the section on international economic and social cooperation provoked “shock, resentment and anger” around the world.28 After the promises of the Atlantic Charter and the 1942 Declaration of the United Nations, expectations for the Dumbarton Oaks negotiations had been high. If the war had been fought for human rights, it was believed, the peace should now guarantee these rights. In February 1945, nineteen states of the Pan-American Union met at Chapultepec, Mexico, to demand a “broadening” of “the charter’s vision of human rights.”29 The Cubans declared: “The juridical conscience of the civilized world demands that the rights of the individual be recognized free from infringement by the State. . . . It is important to extend to the whole world the international recognition of these rights of man.”30 The Australian and New Zealand governments were among a chorus of states, individuals, and nonstate actors also asking why the Dumbarton Oaks proposals had neglected the question of human rights.31 In April 1945, the United Nations Conference on International Organization opened in San Francisco. In the opening speeches, many world leaders urged each other to be aware of the great opportunities and responsibilities that lay before them. South African prime minister Jan Smuts encouraged delegates to commit themselves “to vindicate the fundamental rights of man, and on that basis to found a better, freer world for the future.”32 The



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new US president, Harry Truman, declared: “We must build a new world—a far better world—one in which the eternal dignity of man is respected.”33 The US delegation desired to see the provisions for human rights strengthened at San Francisco. Before the conference began, they had agreed to seek to have “a statement on the promotion of respect for human rights and fundamental freedoms” incorporated into the section outlining the purposes of the organization.34 The forty-two American nongovernmental organizations (NGOs) that the delegation had invited to serve in a consultative capacity were also very interested in strengthening the rights of individuals. However, while the story of the role played by these consultants enjoys a cherished place in NGO folklore, the extent of their influence on the delegation remains unclear.35 The Soviets had also warmed to the idea of human rights since Dumbarton Oaks. Indeed it was their suggested amendment to the Dumbarton Oaks proposals that formed the basis of the humanrights provision that was eventually included in the “Purposes and Principles” of the charter. The final version of article 1(3), which was developed by the Four-Power Consultative Group, which once again consisted of the United States, Britain, the Soviet Union, and China,36 declares that one of the purposes of the United Nations is “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” In its final version, the charter also contained a significant reference to human rights in its preamble. The Dumbarton Oaks proposals had not provided a preamble. A number of states had subsequently proposed that one should be included to establish the intentions of the organization.37 Smuts suggested that “the Charter should contain at its very outset and in its preamble, a declaration of human rights.”38 Some delegations at San Francisco even advocated the inclusion of a human-rights charter in the preamble.39 A draft proposal provided by Smuts formed the basis of the preamble that was eventually included in the charter.40 The section reads: We the Peoples of the United Nations determined To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

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To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and To promote social progress and better standards of life in larger free­dom . . . Have resolved to combine our efforts to accomplish these aims.

The charter represented a landmark for international human rights. Ultimately, it included seven separate references to human rights.41 The society of states declared the promotion of respect for human rights and fundamental freedoms to be one of the purposes of the newly formed organization and resolved to combine their efforts to accomplish this aim. International lawyer Hersch Lauterpacht concluded that in the charter “the individual human being first appears in his full stature as endowed with fundamental rights and freedoms.”42 Ian Clark provides a complementary assessment: “Human rights, in a much more demonstrative way than ever before, had now become the business of international society itself.”43 However, these new provisions for human rights were established in tension with strengthened provisions for the rights of states to govern themselves and to be protected by principles of nonintervention and domestic jurisdiction. We need to understand the nature of these provisions before we can understand the overall meaning of the charter for the rights and responsibilities of sovereign statehood.

State Rights in the Charter It was at San Francisco that the elements of what has come to be understood as the “traditional” meaning of sovereignty were firmly and unambiguously established only for the first time by international society. Delegates established in international law more completely and unconditionally than ever before the sovereign right of self-government and freedom from outside interference. Earlier versions of these rights had been constructed at the Paris Peace Conference (1919).44 First, international society had established the principle of national self-determination, albeit inconsistently applied. Yet the ethnolinguistic application of this principle and its corollary principle of national minority rights had had disastrous consequences for Europe. At San Francisco, the negotiators did not repeat the mistake of constructing an international order on racial grounds. The ethnolinguistic ingredient in the principle of national self-determination was abandoned just as human rights were preferred over minority rights.45 Second, the Covenant of the



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League of Nations had included weak rules protecting the right of states to be free from military intervention and free from interference in matters of domestic jurisdiction. Yet, while the rule of nonintervention outlawed conquest, it did not constitute a general ban on the use of force against sovereign states, and the protection of domestic jurisdiction only applied to procedures for conciliation of disputes. At San Francisco, the prohibition on intervention and the protection of domestic jurisdiction were significantly broadened and strengthened. I examine the negotiation of each of these principles in turn. The collective right of peoples to self-government was repeatedly declared through the course of the Second World War, often in the same breath as declarations about the rights of individuals. In his Four Freedoms speech, for example, Roosevelt emphasized both “the supremacy of human rights everywhere” and “the rights and dignity of all nations, large and small.”46 The negotiators of the Atlantic Charter less ambiguously announced that the signatories “respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them.”47 This right of peoples to self-government would be clearly established in the UN Charter—although, as we will see later in the chapter, it would not be extended to all colonized peoples for a few more years. When the Four-Power Consultative Group met on May 2 at San Francisco, it discussed Soviet suggestions not only for the insertion of the human-rights clause in article 1(3) but also for a clause regarding the selfdetermination of peoples to be added to article 1(2). In the Dumbarton Oaks proposals, article 1(2) had stated that one of the purposes of the organization should be “to develop friendly relations amongst nations and to take other appropriate measures to strengthen universal peace.”48 After the word “nations” the Soviets proposed adding the phrase “based on respect for the principle of equal rights and self-determination of peoples.” The proposed amendment was quickly accepted by the other three powers.49 Some consideration of the subsequent discussion of this amendment by the relevant committee at San Francisco, Committee I of Commission I, helps clarify the difference between this clause and the earlier principle of national self-determination. The Belgian representative H. Rolin warned that the new provision had been founded on “confusion.” He argued that “one speaks generally of the equality of States,” rather than peoples, and he expressed fear that the provision might require intervention to support national minorities demanding self-determination.50 Antonio Cassese reports that a number of other states expressed concerns about the proposed

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provision, “mostly out of fear that a provision on self-determination would foster civil strife and secessionist movements.”51 A Colombian delegate, for example, declared: If [self-determination] means self-government, the right of a country to provide its own government, yes, we would certainly like it to be included; but if it were to be interpreted, on the other hand, as connoting . . . the right of withdrawal or secession, then we should regard that as tantamount to international anarchy, and we should not desire that it should be included in the text of the Charter.52

Egypt expressed fears that the provision could justify misuse of the principle of self-determination just as Germany and Italy had misused the principles of national self-determination and minority rights during the 1930s.53 Subsequently, the committee agreed that “the principle conformed to the purposes of the Charter only insofar as it implied the right of selfgovernment of peoples and not the right of secession.”54 For the commission, then, the principle of self-determination simply referred to the right of peoples to self-government within their existing states.55 It was states rather than nation groups that were granted the right to govern themselves. This principle of self-government would be supported in stronger terms than ever before in provisions for the rights of states to be free from intervention and to be protected by the principle of domestic jurisdiction. The Kellogg-Briand Pact, signed in 1928, had outlawed wars of conquest and wars fought for expansionist ends.56 Article 2(4) of the UN Charter now broadened the prohibition to include “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Certainly an important part of the reason for such a stringent ban on the use of force was the desire “to maintain international peace and security.”57 However, the prohibition of the threat or use of force was also grounded in the right to self-government. The reference to “territorial integrity or political independence” was only inserted at the insistence of smaller powers such as Australia and New Zealand who were eager “to feel more secure.”58 The right of nonintervention served to secure the right of weaker states to govern themselves. As we will see, postcolonial states would later explicitly claim that the right to nonintervention flowed from the right to self-determination. The right to self-government was further protected by the domesticjurisdiction exception included in the final version of the charter. As noted earlier, the Dumbarton Oaks proposals excluded matters “which by in-



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ternational law are solely within the domestic jurisdiction of the state concerned” from the scope of provisions about the peaceful settlement of disputes. On May 4, the Four Powers accepted an amended version of this provision. At the United States’ suggestion, the words “by international law” were removed “on the grounds that international law might not keep up with the evolution of the definition of domestic jurisdiction.”59 The word “solely” was replaced with the broader term “essentially.” It was further agreed that the domestic-jurisdiction exception should not be restricted to the powers of the future Security Council with regard to the pacific settlement of disputes. British foreign secretary Anthony Eden feared that under the Dumbarton Oaks text, “domestic matters might be considered international issues except under one chapter (VIII-A).”60 Domestic matters, it was felt, should be generally protected. Upon the suggestion of Soviet representative S. A. Golunsky, the provision was moved to the end of the principles section, which would become article 2 of the charter.61 The relevant committee at the San Francisco conference, again Committee I of Commission I, produced only one further amendment to the text proposed by the Four Powers. Several states represented on the committee argued that the Four Powers’ proposal was too restrictive, that it undermined the authority and influence of the United Nations, and that it weakened the role of international law. Indeed, prefiguring the manner in which the UN Security Council would sometimes interpret the charter decades later, the French delegation had earlier proposed that to the end of the Dumbarton Oaks provision on domestic jurisdiction should be added the clause “unless the clear violation of essential liberties and of human rights constitutes in itself a threat capable of compromising peace.”62 On the other hand, some states, such as Australia, argued that the amendment did not go far enough.63 At the insistence of Australian delegate Herbert Evatt, the Four Powers’ proposal was amended in a manner intended to further strengthen the protection of the right to self-government. Whereas the Four Powers were willing to allow that the domestic-jurisdiction provision should not prejudice the Security Council’s right to “make recommendations or decide upon measures to be taken to maintain or restore peace and security” under what would become chapter VII of the charter, Evatt insisted that the Security Council’s right be restricted to the application of enforcement measures only. Thus the future Security Council could not make recommendations under chapter VII on matters essentially within domestic jurisdiction. It could only take the more extreme measure of resorting to enforcement. The Australian delegation was reportedly motivated by fear that the future United Nations might find cause to make

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recommendations about Australia’s racially discriminatory immigration policy.64 In a rather candid moment, Evatt made a startling acknowledgment about his reasons for insisting on this restriction: “Every country represented in this conference has its own internal problems, its own vital spheres of domestic policy in which it cannot, without forfeiting its very existence as a state, permit external intervention.”65 The text of article 2(7) that would be finally accepted by the Committee reads: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chap­ ter VII.66

On June 14, at the final meeting of the committee, US delegate John Foster Dulles presented a vigorous defense of this article that was still being opposed by some states. He told the committee that they were dealing with a “new and basic principle governing the entire organization” and “not some technical rule dealing with international disputes” as in the Covenant of the League of Nations. The increased scope of the provision was made necessary by the fact that the scope of the powers of the United Nations itself had been substantially broadened. The new organization was “quite different” from the League of Nations or that envisaged at Dumbarton Oaks. “And the difference,” Dulles observed, “is primarily the fact that the organization we are working to build is going to have functions which, we believe, will enable it to eradicate the causes of war and not merely, or even primarily, to deal with international disputes after they arise.” The wide jurisdiction of the organization created a special problem of what will be the basic relationship of this new organization to the member-states. Is it going to be an organization which deals essentially with the governments of member-states, and through international relations? Or is it going to be an organization which is going to penetrate directly into the domestic life and the social economy of each one of the member-states?

Dulles reminded the members of the committee that none of them wanted to create an organization that intervened directly in the affairs of states to impose a social order of its choosing. The domestic-jurisdiction amendment,



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he observed, “recognized the distinct value of the individual social life of each state.” On behalf of the Four Powers, he concluded: “The directive we give here is a simple principle and a principle which men of common sense all understand. It says to the world organization: ‘conduct business in effect with governments but do not yourselves directly intervene in the domestic life of a state.’ ”67

State Rights in Tension with Human Rights The American and French revolutionaries had claimed that the people were sovereign and that the only legitimate form of government was one in which the people governed themselves. By 1945, this claim had come to be widely accepted in international society. Popular sovereignty was firmly established as the only legitimate form of sovereign statehood. This reality was recognized in the opening words of the charter of the newly created international organization. At the suggestion of US delegate Virginia Gildersleeve, the preamble to the UN Charter begins with the phrase “We the peoples” in place of the originally suggested terminology, “The high contracting parties.”68 One commentary contends that these opening words emphasize that “the Charter is an expression of the will of the peoples of the world and is primarily concerned with their welfare.”69 However, in the remainder of the charter we find two potentially competing conceptions of how best to ensure that these sovereign peoples are free to pursue their sovereign will: one suggests that peoples should be self-governing and free from outside interference; the other insists that the legitimate expression of the will of the people also requires the protection of their individual rights. As I argued in chapter 3, this tension is inherent in the idea of popular sovereignty itself and can be traced to the conflict that emerged between notions of the collective will of the nation and the equal rights of individuals in revolutionary France. International society itself hinted at this tension in the peace constructed after the First World War. Here the rights of nations to self-government and freedom from interference were weakly established in potential conflict with an even weaker international regime for the protection of minority rights in new or reorganized states. Tensions between the goals of national and individual rights were now clearly evident at San Francisco. On one hand, the UN Charter established what have become known as the “traditional” rights of state sovereignty. The rights of sovereign peoples to govern themselves and to be free from outside interference that had been gradually consolidated as legal rules since the eighteenth century

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were now firmly established in international law. On the other hand, the charter hinted at an alternative and sometimes competing conception of popular sovereignty that insists that the enjoyment of these rights to selfgovernment and freedom from interference requires the promotion and protection of the rights of individuals within the state. We find the endorsement of both human rights and national or state rights in the charter’s preamble. It speaks of the determination of “the Peoples of the United Nations . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” We also find that the purposes of the United Nations include the promotion of “respect for human rights and fundamental freedoms” at the same time as “respect for the principle of equal rights and self-determination of peoples.”70 Thus the tension between human rights and a noninterventionist conception of state sovereignty was established in international law.

Consideration of Human Rights and Domestic Jurisdiction in the 1940s This section briefly examines the consideration given by international society to the relationship between human rights and the “traditional” prerogatives of sovereignty in the early years of the United Nations. It identifies two important advances made in the area of human rights. The first is the early moves toward the development of an international human-rights regime, in particular the adoption of a convention according sovereign states the responsibility to prevent and punish the crime of genocide. The second is the repeated confirmation by the UN General Assembly that consideration of the human-rights records of individual states was not precluded by the domestic-jurisdiction provision of the charter. These advances confirmed that the protection of human rights by sovereign states had become a legitimate matter of international concern and scrutiny, if not yet enforcement.71

Early Development of the International Human-Rights Regime In November 1945, the Nuremberg Trials began. The Nazi leaders on trial defended their actions undertaken within Germany on the grounds that sovereign states were allowed to treat their citizens however they wished. This was very much in line with the model of sovereign unaccountability articulated by Secretary Lansing at the end of the previous world war. Her-



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mann Goering, for example, insisted: “But that was our right! We were a sovereign State and that was strictly our business.”72 To a degree, the tribunal agreed with Goering’s position. It found that it had no jurisdiction over “domestic” atrocities committed before the German invasion of Poland. A guilty verdict on the atrocities committed within Germany was reached only by tying what were termed “crimes against humanity” to the charge of aggressive war.73 US Justice Robert H. Jackson candidly concluded: Ordinarily we do not consider that the acts of a government toward its own citizens warrant our interference. We have some regrettable circumstances at times in our own country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state.74

Nevertheless, consideration of the Holocaust led to the development of a new formal category of crimes, “genocide,” and the negotiation of a convention that accorded sovereign states a responsibility to prevent and punish its occurrence. On December 9, 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide.75 The preamble recognized that “international co-operation” was required “to liberate mankind from such an odious scourge.” Article I then stated: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”76 In subsequent articles, contracting parties agreed to adopt a range of measures such as enacting domestic legislation to ensure that genocide did not occur within their territory. The convention, therefore, clearly imposed responsibilities on sovereign states under international law to protect their populations from genocide. This was a momentous development in the evolution of the responsibilities of sovereignty. More ambiguous, however, were the provisions for enforcement of these sovereign responsibilities by international society. Some legal scholars have interpreted the convention to mean that the society of states possesses not merely a right but an obligation to “counter breaches of human rights” within sovereign states when such breaches amount to genocide, with

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military force if necessary.77 Former UN high commissioner for human rights Louise Arbour contends that the provisions of the convention create “undisputed” legal obligations upon which the present-day concept of the “responsibility to protect” comfortably rests.78 More conservative interpretations of the convention, however, find no such obligations.79 Moreover, it is not at all clear that the convention provides any grounds for interference in the affairs of sovereign states beyond those already found in the UN Charter. Article VIII provides the only clarification as to what international “prevention” of genocide might entail.80 The UN Secretariat offered an initial, strongly worded draft article that stated that, should genocide be committed anywhere in the world, the contracting parties “shall do everything in their power to give full effect to the intervention of the United Nations.”81 However, the Americans, the Soviets, and the Chinese each advanced more timid formulations, presumably to limit the obligations incurred under the convention, and the final negotiated article merely states that contracting parties “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide.” As William Schabas observes, this was something that states were already entitled to do.82 In short, the Genocide Convention contains no provision that recognizes that states must, or even may, intervene to prevent genocide from occurring beyond their borders. Nevertheless, the convention did clearly impose a responsibility upon sovereign states to prevent and punish the crime of genocide within their own territories. This was an internationalized obligation even if it was not enforceable. Genocide was held to be “a crime under international law” that was a legitimate concern of “the competent organs of the United Nations.” The day after the adoption of the Genocide Convention, the General Assembly adopted the Universal Declaration of Human Rights. While it lacked the legal force of the convention, the declaration proclaimed the freedom and equality of all human beings “as a common standard of achievement for all peoples and all nations.” The obligations found in this declaration would eventually be given formal legal status by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which were adopted in 1966. The development of the Genocide Convention and the Universal Declaration of Human Rights in the early years of the United Nations confirmed that a sovereign state’s



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protection of the rights of its population had become a legitimate matter of international concern, if not yet enforcement.

Early Consideration of the Principle of Domestic Jurisdiction In 1923, the Permanent Court of International Justice had rendered a judgment that is still considered by international legal scholars to be “the leading pronouncement on the concept of ‘domestic jurisdiction.’ ”83 In the case of the Nationality Decrees in Tunis and Morocco, the court found: “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations.”84 While, in his defense of article 2(7) at San Francisco, Dulles had argued that the broader powers of the United Nations required stronger protection of domestic jurisdiction, he also recognized, as the court had, that the principle would evolve over time. Domestic jurisdiction, he claimed, “is a simple thing which is subject to evolution. . . . Future generations will thank us for what we do in adopting simple phrases and allowing them to evolve as the state of the world, the public opinion of the world, makes it necessary and appropriate that it should evolve.”85 Soon after the UN Charter was signed, member states found themselves considering this evolving principle and particularly its relation to human rights. At the first session of the General Assembly, in 1946, India raised the issue of South Africa’s treatment of Indian nationals. The Indian representative argued that recently adopted legislation segregating Indians in South Africa and restricting their ownership of land constituted a violation of the UN Charter’s provisions for human rights and fundamental freedoms as well as a repudiation of an earlier agreement reached between the two countries. South Africa requested that the issue be removed from the assembly’s agenda on the grounds that the people concerned were Indian nationals of the Union of South Africa rather than nationals of India, and therefore the matter was essentially within South Africa’s domestic jurisdiction according to article 2(7).86 With respect to the issue of human rights, South Africa insisted that “there did not exist any internationally recognized formulation of such rights, and the Charter itself did not define them. Member States, therefore, did not yet have any specific obligations under the Charter.” Moreover, political rights and freedoms of individuals were not fundamental. To suggest otherwise, the South African representative continued, “was tantamount to saying that the most progressive races should

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be retarded by the less progressive if the latter were in the majority. Equality in fundamental rights and freedom could be assured in a multi-racial State only by a measure of discrimination in respect of non-fundamental rights.”87 Although some states supported South Africa’s claims to domestic jurisdiction, the majority insisted that the General Assembly was fully competent to consider the matter. They argued that “Member States had made a certain renunciation of their sovereignty” by adopting the charter and its provisions for fundamental human rights and freedoms. “The Charter,” they claimed, “imposed upon each member an obligation to refrain from policies based on race discrimination.”88 The representative of Panama was particularly resolute in his belief that human rights were no longer contained within the sphere of domestic jurisdiction: Are human rights essentially within the domestic jurisdiction of the State? My answer is no, and a hundred times no. I submit that by the San Francisco Charter human rights have been taken out of the province of domestic jurisdiction and have been placed within the realm of international law.89

In adopting Resolution 44 (I), the assembly merely requested further reports from the Indian and South African governments, yet it confirmed that the treatment of the Indian population in South Africa was a legitimate issue of UN consideration.90 In sum, in the early years of the United Nations, international society confirmed that sovereign states had a responsibility to protect their populations, at least from the crime of genocide, and that the human-rights affairs of states had become a legitimate matter of international concern, although not yet enforcement. Before considering the further development of such sovereign responsibilities, in tension with the increasingly cherished sovereign right to noninterference, during the Cold War, it is necessary to first examine the process of decolonization and to consider its implications for the construction of sovereignty.

Decolonization Only fifteen years after a new system of international trusteeship had been established in the UN Charter, justified on the grounds of the continued belief that some peoples had not yet developed the capacity to responsibly govern themselves, the General Assembly declared that all peoples had an unqualified right to sovereign independence. The right of peoples to self-



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determination and sovereign statehood was universalized. Anticolonialists grounded their arguments in human rights just as the American and French revolutionaries had done before them. Self-determination was declared to be a fundamental right and a prerequisite for the enjoyment of other fundamental rights. This section examines these developments and considers what they teach us about the relationship between sovereignty and human rights and what the implications of this relationship are for the rules of sovereignty.

Colonialism and the UN Charter The provisions of the Atlantic Charter were not only read as an endorsement of individual rights. They also raised hopes among subject peoples for sovereign statehood and an end to imperial rule. The third article of the charter declared that the negotiators “respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them.” The italicized clause was not in the original draft. Roose­ velt added the reference to the restoration of self-government. Churchill, fearing that this could be read as a justification for anticolonialism proposed the additional reference to sovereign rights.91 For Churchill, the right to self-government was only intended to apply to sovereign states that had lost their independence during the war. Nevertheless, anticolonial hopes were raised by this provision. The British governor of Burma, for example, was quickly forced to seek guidance from the secretary of state for India and Burma, as he believed the charter “would be taken here to apply literally to Burma.” He worried that “Burma will ask whether this great charter of liberty is to apply to all nations save those which happen to be subjects of the British Crown, and if the answer is that that is the right interpretation, then they will have quite a lot to say about British justice, and so forth.”92 In a speech to Parliament on September 9, 1941, Churchill sought to clarify the meaning of the charter for the British Empire: “At the Atlantic Meeting, we had in mind, primarily, the restoration of the sovereignty, selfgovernment and national life of the States and nations of Europe now under the Nazi yoke, and the principles governing any alterations in the territorial boundaries which may have to be made.” This, he argued, was “quite a separate problem from the progressive evolution of self-governing institutions in regions whose peoples owe allegiance to the British crown.”93 Given their historical mistrust of imperialism, the Americans were less willing to make this distinction. Roosevelt himself believed the colonial system to be an

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impediment to world peace and stability and too often a means of exploitation.94 In February 1942, the president declared the charter to be universal in scope: “The Atlantic Charter applies not only to parts of the world that border the Atlantic but to the whole world.”95 In May, US under secretary of state Sumner Welles elaborated and declared a universal goal of liberation and the end of imperialism: If this war is in fact a war for the liberation of peoples it must assure the sovereign equality of peoples throughout the world. . . . Our victory must bring in its train the liberation of all peoples. Discrimination between peoples because of their race, creed or color must be abolished. The age of imperialism is ended. The right of a people to their freedom must be recognized, as the civilized world long since recognized the right of the individual to his personal freedom. The principles of the Atlantic Charter must be guaranteed to the world as a whole—in all oceans and in all continents.96

Through the course of the war, President Roosevelt remained quite certain that full independence should be the ultimate goal for the colonies. The British were willing to speak of “partnership” with subject peoples and gradual progression toward self-government within the fabric of a lasting British Commonwealth. However, repeated references to “independence” and proposals for timetables put forward by the Americans were deemed unacceptable.97 The British and Americans, nevertheless, found common ground in the belief that the path to independence or self-government needed to be gradual. The enjoyment of sovereign independence was understood to entail responsibilities of self-government that some peoples remained incapable of performing.98 After some debate, the idea of the gradual development of subject peoples toward either self-government or independence was included in the UN Charter.99 The UN Charter reaffirmed the responsibilities of sovereign states to protect the interests and well-being of subject peoples over whom they exercised a trust. It also formally acknowledged for the first time that a goal of trusteeship was the progression toward self-government, if not independence. Chapter XII provided for an International Trusteeship System, under the authority of the United Nations, for the “administration and supervision” of territories that had been colonies of enemy states during the First and Second World Wars and had now come under international trust.100 Repeating the language of article 1(2), a stated objective of the trusteeship system was “to encourage respect for human rights and for fundamental



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freedoms for all without distinction as to race, sex, language, or religion.”101 New international machinery was established for the enforcement of these responsibilities of trusteeship.102 Chapter XI took the form of a Declaration Regarding Non-Self-Governing Territories. These territories contained over ten times the number of people that were to be found within the trusteeship system.103 This chapter accepted that the principles and obligations of trusteeship applied not only to the administration of those dependencies that fell within the scope of the trusteeship system but the administration of all non-self-governing peoples.104 Administrative powers were required to submit regularly to the secretary-general technical information about the conditions within their territories, but this did not amount to a system of international supervision. The British delegation at San Francisco drew a clear distinction between “the principle of trusteeship which should guide Colonial Powers in the administration of their dependent territories (and should therefore be of universal application) and the creation of a special system of international machinery, to apply to certain specific territories.”105 The provisions of chapter XI were certainly binding, but no provision was made for international society to hold states to account. It is for this reason that William Bain suggests that the chapter is “substantively not unlike the Berlin Act.”106 During negotiations at San Francisco, unable to secure British agreement, the United States abandoned its support for universal independence and settled for the principle of self-government. William Roger Louis tells us that the British were so relieved that the Americans had agreed to omit “independence” from chapter XI dealing with colonial territories that they were prepared to allow its inclusion in the following chapter XII, which dealt only with trust territories.107 In its final formulation, chapter XI charged administering powers with the responsibility to ensure the “just treatment” and “protection” of the peoples concerned and “to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement.”108 On the other hand, an objective of the International Trusteeship System under chapter XII, with respect to the inhabitants of trust territories, was “to promote . . . their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned.”109 Ultimately, the United Nations was not granted all that much more authority over dependencies than the League of Nations had possessed.

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Nevertheless, the trusteeship system of 1945 reaffirmed the responsibilities that sovereign states had to protect the interests and well-being of those within their trust. Moreover, as Louis notes, the colonial powers did “formally acknowledge that their duty lay in the direction of progressive selfgovernment of the colonies. . . . Once inscribed in the Charter of the United Nations, the pledges could not be erased.”110 It was the formulations agreed upon by American and British delegations that found their way into the UN Charter, but smaller powers criticized their failure to measure up to the promises of the Atlantic Charter all the way to the signing of the document. This was but a hint of the colonial debates in the General Assembly that were to come.

The End of Colonialism During wartime negotiations and the drafting of the UN Charter, few predicted the speed or scope of the subsequent process of decolonization. Two hundred fifteen million people lived under colonialism at the end of the Second World War.111 Only fifteen years later, the General Assembly adopted a declaration that proclaimed that all peoples have an unqualified right to sovereign independence. A further ten years later, the assembly unambiguously declared colonialism to be a “crime.” Neta Crawford highlights a number of trends that combined to make ongoing denial of independence unacceptable after 1945. The first was the delegitimization of racist beliefs. As noted in the previous chapter, the “scientific” racism and social Darwinism that underpinned distinctions between “civilized” and “uncivilized” peoples and graded them on their capacity for self-government were discredited by the horrors of the Nazi regime, if not before. The emergence of the idea of universal human rights represented a further challenge to claims that some peoples were inferior to others. Second, anticolonial movements grew in strength within both colonies and the metropoles of colonial powers. Increased political activism challenged the legitimacy of imperialism. Finally, changing normative beliefs were fiercely promoted in the forum of the General Assembly.112 The charge against colonialism in the General Assembly was led by small powers, many of which had only recently gained their own independence. The key actors included India, Pakistan, Egypt, the Philippines, and Cuba. Saudi Arabia, Guatemala, and Mexico also lent their support. The Soviet Union played the role of the great-power champion of the colonial peoples.113 One step taken by anticolonial states was to pressure colonial



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powers by demanding international supervision of colonies, particularly with respect to their political development. Despite their insistence that they were not accountable to international society for their treatment of people in non-self-governing territories, the colonial powers were unable to prevent the General Assembly from discussing or making recommendations on colonial matters.114 A further and more important step taken by the anticolonial states was to demand in the General Assembly recognition of the right of all peoples to self-determination. It will be recalled that the drafting committee at San Francisco had emphasized that article 1(2) of the charter did not create a right of secession but merely referred to the right of peoples to selfdetermination within their existing states. This article was now adopted by anticolonial states in arguments for independence for subject peoples. While the negotiators at San Francisco may not have intended it for this purpose, Cassese tells us, article 1(2) “had a snowball effect, for it lent moral and political force to the aspirations of colonial countries, strongly backed up by Socialist states. Thus, Article 1(2) was eventually perceived and relied upon as a legal entitlement to decolonization.”115 As Reus-Smit observes, General Assembly speeches and resolutions demanding the universalization of the right of self-determination were couched in the language of human rights.116 It was appeals to human rights norms that delegitimized the perpetuation of colonialism and trusteeship and provided the moral justification for the granting of sovereignty to dependencies. “By linking self-determination to the basic rights and freedoms of all individuals,” Reus-Smit observes, “developing states successfully undermined the paternalism of the European colonial powers.”117 The appeal to human rights altered the terms of the debate: gradual tutelage toward independence was no longer an option. In the 1950s, the General Assembly adopted a series of resolutions that explicitly tied self-determination to human rights. Resolution 421 D (V) recognized that the right of peoples to self-determination was “a fundamental human right.” Resolution 637 A (VII) declared that “the right of all peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights.”118 In these years, anticolonial states also called for the General Assembly to include in the two draft covenants on rights, which would be adopted in 1966, articles on the right of peoples to self-determination.119 They insisted: “No basic human rights could be ensured unless this right were ensured.”120 The right of self-determination was thus deliberately “grafted” to emergent principles of individual rights.121

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The connection between individual rights and the self-government of peoples was by no means a new idea. Since the American and French Revolutions, self-determination had been increasingly proclaimed within the Western world as both a right and a precondition for the enjoyment of rights. Now this language of universal rights was successfully turned against the West in the form of a justification for immediate independence for colonized peoples. The idea that all peoples enjoyed an unqualified right to self-determination was given its most celebrated expression in Resolution 1514 (XV), adopted on December 14, 1960. This Declaration on the Granting of Independence to Colonial Countries and Peoples was drafted and pushed by anticolonial states, and it drew on language that had been agreed to at the 1955 AsianAfrican Conference that convened in Bandung. The declaration took as its starting point the provisions for fundamental human rights and the selfdetermination of all peoples found in the UN Charter. It further asserted that “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory” and proclaimed the necessity that colonialism in all its forms should be brought to “a speedy and unconditional end.” To this end, the General Assembly declared: “The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.” The right of all peoples to independence, it claimed, should always be unqualified and unconditional: “Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.” The assembly declared that “immediate steps” should be taken “to transfer all powers to the peoples of those territories” that had not yet attained independence. The declaration was passed by a vote of 89 to 0 with 7 states abstaining. Even those states that still possessed colonies dared not vote against the resolution. Arguments for the adoption of the declaration were couched in the language of the Atlantic Charter, Woodrow Wilson, and the American and French Revolutions. Questions of competence for self-government were irrelevant in the face of these arguments. The Egyptian representative asked if the colonial powers had forgotten “that a great American said: ‘. . . that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.’ ” The Ghanaian representative noted that “the writings of Rousseau, Jefferson, Marx, Thomas Paine, Machiavelli and other political



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thinkers have had their influence. Thus everywhere in Africa, Africans demand freedom, equality, and justice.”122 The complexities of independence or the lack of capacity for autonomy could no longer be appealed to as justification for withholding selfdetermination. In 1966, the General Assembly adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which stated that “all peoples have the right of self-determination.” In 1970, the assembly unequivocally declared “the further continuation of colonialism in all its forms and manifestations a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law.”123 Responsibilities for the protection of dependent peoples thus gave way to a universal right of self-determination.

Sovereignty and Human Rights What does the story of decolonization reveal about nature of the relationship between sovereignty and human rights, and what are the implications of this relationship for the rules of sovereignty? Since the emergence of human-rights discourse in the mid-twentieth century, there has been a tendency among scholars to talk about sovereignty and human rights as contradictory and opposed regimes. However, the two cannot be so easily separated. After all, we have seen that sovereignty had been increasingly justified on individual-rights grounds since the emergence of popular sovereignty in the seventeenth and eighteenth centuries, and the end of colonialism now saw the universalization of the right to sovereign independence explicitly tied to the idea of universal human rights. Reus-Smit suggests that treating sovereignty and human rights “as separate, mutually contradictory regimes obscures the justificatory role that human rights principles have performed in the constitution of the modern sovereign order.”124 He argues: The tensions that exist between sovereignty and human rights stem not from their separateness, from their status as parallel and antagonistic regimes, the latter instituted to civilize the former, but from the inherently contradictory nature of the modern discourse of legitimate statehood, a discourse that seeks to justify territorial particularism on the grounds of ethical universalism.125

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In other words, the tension between sovereignty and human rights derives from the fact that the sovereignty of the territorially bounded state is grounded in universal, unbounded principles of human rights. This gives rise to key questions: What is to be done when the sovereign state fails to protect the universal rights upon which its authority is grounded? Is the sovereign accountable not only to its population but to the society of states for the protection of these fundamental rights? Put another way, how do the normative foundations of sovereignty affect the rules of sovereignty? The answers to these questions are not implicitly given. They remain for international society to construct. For example, the society of states could privilege the rights of nonintervention and noninterference on the grounds that human rights are best established and protected by sovereign states. On the other hand, it could insist that, if sovereign rights are morally derived from the human rights that states protect, then enjoyment of the right of nonintervention ought to be conditional upon the protection of those human rights. Both answers were advanced during the Cold War period both in theory and in the legitimation practices of states.126 Reus-Smit seems to overstate his case when he concludes that, since the right of self-determination for formerly colonized peoples was grounded in human rights, it was therefore “far from being a categorical right with no strings attached.”127 The right to self-determination may have been tied to the satisfaction of basic human rights, but it was not necessarily conditional upon the ongoing protection of these rights, nor was this ever the intention of the anticolonial movement. Strings would only be attached if the society of states chose to attach them.128 Since the American and French Revolutions, sovereignty had been grounded in the “rights of man,” and this implied that the sovereign was accountable to the people for securing these rights. However, the extent to which the sovereign was accountable to international society for the protection of these rights had always been a different question. We have seen that the society of states had been developing tentative answers to this question, in addition to its agreements about the responsibilities of sovereignty with respect to the non-European world, for many years prior to decolonization. Guarantees for the protection of minority rights, for example, had been a common requirement of recognition for new states since the seventeenth century, first in relation to religious minorities and later in relation to national minorities. These guarantees were institutionalized after the First World War. Provisions for minority rights were complemented by a weakly established doctrine of humanitarian intervention in the nineteenth and early twentieth centuries. A generation



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later, provisions for fundamental human rights were incorporated in the UN Charter in uneasy tension with provisions for the right of states to freedom from intervention and interference in their internal affairs. An international human-rights regime had subsequently begun to emerge, which posed a challenge to the rights of sovereignty. While most international agreements left enforcement of human rights in the hands of states, some, such as the Genocide Convention, arguably pointed toward, while not explicitly providing for, the international enforcement of sovereign responsibilities. Nevertheless, in attaining a right of self-determination, formerly colonized peoples entered into an international society that had by no means resolved questions about the enforcement of the responsibilities of sovereignty. Tensions remained between competing visions of legitimate statehood. These tensions were now to become particularly conspicuous, since the unqualified extension of self-determination to all peoples had resulted in the creation of what Robert Jackson terms “quasi-states,” many of which displayed little capacity to protect the rights of their people.129

Nonintervention and Human Rights during the Cold War This final section traces developments in the tension between competing visions of sovereignty during the remainder of the Cold War. It examines on one hand the entrenchment of the “traditional,” noninterventionist conception of sovereignty. During this period postcolonial states in particular endorsed an almost unconditional sovereign right of nonintervention in international society. Soviet bloc states and Western states also championed this conception of sovereignty when it was in their political and strategic interests to do so. There was little support to be found for the argument that grave violations of individual rights could ever justify forcible intervention in the internal affairs of sovereign states. On the other hand, this section also demonstrates the acceptance by international society that sovereignty entails responsibilities to promote and defend the human rights of populations. This responsibility was plainly articulated in international human-rights covenants and even in General Assembly declarations concerning the principle of nonintervention. Nevertheless, with the crucial exception of instances of ongoing denial of self-rule and racial discrimination, the society of states refused to countenance international enforcement of these sovereign responsibilities. Sovereigns were held to be internationally responsible for the provision of human rights, but they also enjoyed an almost absolute right of nonintervention. Human rights

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were a legitimate matter of international concern but for the most part not enforcement.

The Principle of Nonintervention Hedley Bull observed that the story of the “revolt against the West” by African and Asian colonies was also a story of the acceptance by these peoples of Western ideals and institutions.130 As we have seen, their claims to sovereign statehood were grounded in the same principles of individual rights and self-government that European peoples had appealed to since the emergence of popular sovereignty. These newly sovereign peoples were also quick to claim for themselves the rights of nonintervention and freedom from outside interference enjoyed by Western sovereigns. Even the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples reminded states of their responsibilities to respect principles of “equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.” Over the next two decades, postcolonial and other Third World states encouraged international society to accept more extreme and unconditional assertions of these rights than it ever had before. The denial of self-rule had for many of these peoples entailed humiliation, exploitation, and violence. They were now determined to ensure that they would never again be subject to the whims and predations of powerful states. The United Arab Republic, for example, claimed in 1970 that “in the final analysis, nonintervention was for the great Powers a duty, and for the small Powers a right and an immunity,” while the Philippines insisted that the purpose of the principle was “to protect the weak from the depredations of the strong.”131 Postcolonial states pushed a series of declarations of the principle of nonintervention through the General Assembly, and they were quick to condemn those that violated the principle.132 The only possible exceptions to the prohibition against intervention that were alluded to were instances of ongoing colonialism, denial of self-rule, and racial discrimination—instances of persistence of the old order. They proclaimed an absolute principle of nonintervention while insisting first on an end to colonialism and the realization of the right to self-determination, grounded in the human rights and fundamental freedoms of all peoples. In 1965, for example, at the request of the Soviet Union, the General Assembly considered the question of “The Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty.” The assembly adopted a draft resolution sponsored by fifty-seven powers, mainly from



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Asia, Africa, and Latin America.133 The first operative paragraph of the resolution declared: No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.134

The principle of nonintervention was explicitly tied to the right of selfdetermination, which was in turn tied to human rights: All States shall respect the right of self-determination and independence of peoples and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms. Consequently, all States shall contribute to the complete elimination of racial discrimination and colonialism in all its forms and manifestations.135

R. J. Vincent concludes that the declaration went well beyond earlier doctrines of nonintervention and, by its insistence on the right of selfdetermination and the respect for human rights, it could actually be held to be “radically interventionary.”136 However, this possible interventionist agenda only applied to ongoing colonialism and denial of the right of peoples to govern themselves. Where people had achieved self-determination, the right of nonintervention was absolute. The principle of nonintervention was repeatedly and extensively discussed in the General Assembly largely because the Soviet Union persisted in placing it on the agenda. The Soviets and other Communist states saw the principle as an instrument both for criticizing the West, in particular the United States, and for attracting Latin American states and new states in Africa and Asia.137 The 1965 debate on the Inadmissibility of Intervention, for example, came one year after the intervention by the United States and Belgium in Stanleyville and in the same year as the American intervention in the Dominican Republic and escalation in Vietnam.138 The Soviets argued that debate on the matter of intervention was urgent because of “the increasingly grave turn of world events” resulting from “certain Western powers . . . intervening by force in the domestic affairs of States,” and the Soviets distinguished themselves from those powers seeking to “impede the advance of history by aggressive acts and open intervention in the

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domestic affairs of States and peoples fighting against colonial domination, for their national liberation and for their independent sovereign existence.”139 (Meanwhile, of course, the Soviets themselves intervened in states such as Hungary and Czechoslovakia on grounds of socialist internationalism, which they argued was a higher law than nonintervention.)140 For their part, Western states consented to the disagreeable declarations on nonintervention passed by the General Assembly for the sake of their reputations in the Third World, but they maintained that it was both inevitable and desirable that states should seek to influence the internal affairs of other states and that such actions should not be considered “interventionary.” They also insisted that the declarations were merely statements of consensus that had been reached between governments and were by no means binding revisions of the UN Charter.141 In these same decades, however, Western states readily joined the Third World in condemning India and Vietnam for actions that are today widely considered to be legitimate examples of humanitarian intervention.142 In these cases, largely for geopolitical reasons, support for intervention was only to be found from the Soviet Union and its allies. In 1971, India intervened in East Pakistan and brought to an end brutal repression by the Pakistani government, which had resulted in the deaths of over a million Bengali people. This intervention led to the creation of the state of Bangladesh. In Security Council debates, India justified its actions primarily on grounds of self-defense but also argued that it intended “to rescue the people of East Bengal from what they are suffering” and repeatedly pointed to the atrocities that had been committed by the Pakistani army.143 In an open letter to US president Nixon, Indian prime minister Indira Gandhi justified India’s actions by tying legitimate statehood to the protection of human rights: The fact of the matter is that the rulers of West Pakistan got away with the impression that they could do what they liked because no one, not even the United States, would choose to take a public position that while Pakistan’s integrity was certainly sacrosanct, human rights, liberty were no less so and that there was a necessary interconnection between the inviolability of states and the contentment of their people.144

Such arguments found no support in international society. While India’s actions were defended by Soviet bloc countries in the Security Council, no country explicitly suggested that India had a right to intervene on humanitarian grounds, and many reaffirmed the importance of the principle



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of nonintervention.145 When the matter was subsequently transferred to the General Assembly, a number of states explicitly denied the right to intervene in the face of mass atrocities. The Iranian representative declared, “No matter how grave has been the situation in Pakistan with regard to the humanitarian question of the refugees, nothing can justify armed action against the territorial integrity of a Member State.” The Jordanian representative similarly insisted, “Regardless of the merits and origin of the present conflict, there can be no justification for the armed intervention of one State in the territory of another.”146 The United States imposed economic sanctions on India for its actions. Vietnam’s overthrow of Pol Pot’s Khmer Rouge, which had been responsible for the death of somewhere between one and two million Cambodians, was met with even stronger condemnation by international society. Only eight months before the intervention, US president Jimmy Carter had named Pol Pot’s regime the “worst violator of human rights in the world.”147 Yet the United States joined the rest of international society in early 1979 in denouncing Vietnam’s intervention. In Security Council debates in January, several Western states explicitly denied that massive violations of human rights could justify military intervention. The brutality of the Pol Pot government should have been more firmly condemned by the society of states, the United States argued, but it did not justify a breach of the rule of nonintervention.148 Norway similarly acknowledged that it had “strong objections to the serious violations of human rights committed by the Pol Pot Government. However, the domestic policies of that Government cannot— we repeat, cannot—justify the actions of Vietnam over the last days and weeks.”149 France agreed: “The notion that because a regime is detestable foreign intervention is justified and forcible overthrow is legitimate is extremely dangerous. That could ultimately jeopardize the very maintenance of international law and order and make the continued existence of various regimes dependent on the judgement of their neighbours.”150 Similar statements were made by the United Kingdom, Portugal, Australia, and New Zealand. Several non-Western governments concurred. Fearing Vietnamese expansion, all five members of the Association of Southeast Asian Nations (ASEAN) participating in the debate opposed the intervention. Singapore declared, “No other country has a right to topple the Government of Democratic Kampuchea, however badly that Government may have treated its people.”151 Even Bangladesh, which had so recently attained its own sovereignty by means of intervention, reaffirmed “the cardinal principle that States shall refrain, in their international relations, from the threat or use

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of force against the territorial integrity or political independence of any State.”152 Newly independent states clearly held the rights of sovereignty to be precious once they had attained them for themselves. Certainly the fierce condemnation of Vietnam for its actions can be partly explained by the context of the Cold War and Vietnam’s lack of support in international society. Western opposition to Vietnam’s intervention can be contrasted with the fact that the Soviets and Eastern bloc countries refused to acknowledge that the intervention had even occurred. They instead insisted, as the Vietnamese had, that the Cambodians themselves had overthrown the Khmer Rouge regime. Ultimately, a draft resolution calling for the withdrawal of foreign forces from Cambodia was vetoed by the Soviet Union.153 Political considerations clearly played some role in the way international society responded to Vietnam’s intervention. In the same year, Tanzania’s use of force against Idi Amin’s regime, which had killed up to three hundred thousand Ugandans, was greeted with tacit acceptance. Tanzania’s actions, which led to the overthrow of Amin, were not widely censured for a number of reasons, including the absence of vital superpower interests, the contrasting reputations of Amin and Tanzanian president Julius Nyerere both within Africa and the wider society of states, and the recognition that Tanzania had been attacked first.154 Nevertheless, it is clear that military intervention was not accepted by the society of states in this period as a legitimate response to the failure of sovereigns to protect the safety of their people. Indeed, while they each alluded to the human-rights violations that they had ended, India, Vietnam, and Tanzania relied primarily on self-defense and national security arguments rather than appeals to humanitarianism when attempting to justify their interventions. It was implicitly understood that humanitarian justifications for forcible intervention in a neighboring state would not be accepted by international society. The rights of sovereignty trumped the international enforcement of sovereign responsibilities.

The Promotion of Human Rights International society adopted numerous declarations in support of the principle of nonintervention and repeatedly condemned states that breached this principle during the Cold War. Nevertheless, some developments in this period pushed in a different direction. Of particular importance were international society’s imposition of sanctions in response to racial discrimination and segregation in South Africa and its codification and increasing



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monitoring of the human-rights responsibilities of states. I briefly examine each in turn. The one exception to the strict principle of noninterference in the affairs of sovereigns that international society was prepared to countenance during the Cold War was ongoing denial of self-rule and racial discrimination. While they may have sought to entrench their right to nonintervention in this period, postcolonial states were also quick to condemn any states that continued to deny self-rule to peoples and discriminated against them on racial grounds. As increasing numbers of formerly colonized peoples became members of the United Nations in the decades after the Second World War, their memories of subjection and humiliation prompted them to develop what T. B. Millar termed “a new classification of international sins”: sins of racial discrimination and colonialism, which trumped all others.155 Apartheid rule in South Africa was considered an example of the former and a result of the latter.156 In 1952, the governments of Afghanistan, Burma, Egypt, India, Indonesia, Iran, Iraq, Lebanon, Pakistan, the Philippines, Saudi Arabia, Syria, and Yemen requested that the question of racial conflict in South Africa, resulting from the policies of apartheid, be placed on the agenda of the General Assembly for the first time.157 The issue in question was not the protection of foreign nationals or violation of international agreements, as it had in large part been when India confronted South Africa in the assembly in the 1940s. Rather, it was the practice of racial discrimination and segregation by a sovereign state against its own people. Despite South African protestations of domestic jurisdiction, which were supported by Britain, Australia, and New Zealand, the General Assembly adopted Resolution 616 (VII), implicitly condemning South Africa and calling for a commission of inquiry. Over the remainder of the decade, the assembly repeatedly decided that racial discrimination within a sovereign state was a legitimate matter of international concern and passed a number of resolutions calling on South Africa to observe its human-rights obligations under the UN Charter.158 Following the Sharpeville killings in 1960, the General Assembly almost unanimously adopted Resolution 1598 (XV), declaring apartheid to be “reprehensible and repugnant to human dignity.”159 Over the next few years, the assembly ritually condemned apartheid and South Africa’s failure to respond to UN demands that it abandon its practices of racial discrimination. For its part, South Africa continued to insist that UN involvement in its affairs “was tantamount to denying the principle and attributes of national sovereignty.”160 However, support for South Africa’s claims of

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domestic jurisdiction declined, and very few states dared vote against resolutions in which South Africa was repeatedly described as “racist” and apartheid was declared to be a “crime against humanity.”161 Discussion in international society turned to questions about appropriate action to enforce the abandonment of apartheid. Since condemnation and calls for the imposition of voluntary sanctions by the General Assembly did not lead to substantial policy changes among member states, the debate shifted to the Security Council.162 The drafters of the UN Charter had intentionally given the Security Council considerable discretion in determining which situations warrant the application of enforcement measures. Article 39 of chapter VII states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression” and that it shall make recommendations or decide on nonmilitary or military enforcement measures that should be taken “to maintain or restore international peace and security.”163 All proposals for changes to this article at San Francisco that would have restricted or weakened the authority of the council were rejected. The committee negotiating the final text decided “to leave to the Council the entire decision as to what constitutes a threat to the peace, a breach of the peace or an act of aggression.”164 The Security Council first considered the issue of apartheid after the Sharpeville killings. The representatives of twenty-nine African and Asian states requested an urgent meeting “to consider the situation arising out of the large-scale killings of unarmed and peaceful demonstrators against racial discrimination and segregation in the Union of South Africa.”165 France and Britain insisted that the South African situation was outside the competence of the council on the grounds that it did not constitute a threat to international peace and security. Other states considered the situation only to be a potential threat. South Africa again insisted that the matter fell within its domestic jurisdiction. Nevertheless, the council passed Resolution 134, calling for the elimination of apartheid and expressing concern that South African policies had led to “international friction,” which could increase over time.166 The council’s decision to give consideration to and adopt a resolution on the apartheid issue clearly repudiated South African arguments for domestic jurisdiction. With this precedent now set, the focus of subsequent debates shifted to the question of whether the regime’s policies did indeed threaten international peace and security and should therefore be subject to enforcement measures under chapter VII.167 While international society had reached consensus on the condemnation of apartheid,168 division remained between Third World and Commu-



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nist states, which believed that the solution lay in a change in political institutions and the establishment of majority rule in South Africa, on the one hand, and on the other, Western states that merely proposed the gradual inclusion of blacks into the existing political system. Yet again, political and strategic considerations played a determining role in the positions taken by both Communist and Western powers on issues of human rights and external interference. Unable to find common ground, nor to agree on whether South Africa posed a threat to international peace and security, the two sides were never able to develop a consensus on appropriate enforcement measures. As a result, the society of states, through the Security Council, was able to progressively adopt diplomatic sanctions, and even a mandatory arms embargo in 1977, but it never adopted the comprehensive economic sanctions that some states sought.169 Nevertheless, the willingness of international society to repeatedly condemn and even sanction, in some measure at least, a state that violated the rights of its population was an important step toward the international enforcement of sovereign responsibilities.170 Through the course of the Cold War, sovereign responsibilities for the protection of populations were codified and increasingly subjected to international scrutiny. Following the adoption of the Genocide Convention and the Universal Declaration of Human Rights in 1948, the General Assembly adopted the International Convention on the Elimination of All Forms of Racial Discrimination in 1965. The next year it adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which provided “an authoritative statement of internationally recognized human rights.”171 However, while human-rights principles had been internationalized, implementation and enforcement remained the prerogative of the state. In international treaties, states recognized that they had a responsibility to provide for the human rights of their populations, but this was not for international society to enforce.172 The 1970s and 1980s saw increased monitoring and reporting of humanrights violations in international society.173 This was initiated by some governments, in particular the United States under President Carter, who made human rights a priority for American foreign policy and declared in 1977 that “no member of the United Nations can claim that mistreatment of its citizens is solely its own business.”174 The promotion of human rights thereafter gained new momentum and legitimacy, at least among Western states. By the mid-1980s, Jack Donnelly suggests, “debate in most Western countries focused less on whether human rights should be an active concern

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of foreign policy than on which rights should be pursued where.”175 The adoption of the Helsinki Final Act in 1975 in particular led to increased promotion and monitoring of human rights in Eastern Europe. The act was signed by thirty-three European states, including the Soviet Union and its Eastern European allies, as well as Canada and the United States. Signatories to the act reaffirmed the principle of nonintervention in the affairs of states.176 However, drawing a connection between the demands of international security and human rights, they also pledged to “respect human rights and fundamental freedoms” and recognized that respect for these rights “is an essential factor for the peace, justice and well-being necessary to ensure the development of friendly relations and co-operation among themselves as among all States.”177 The adoption of these provisions for human rights, which the Soviets only agreed to because they believed them to be fairly innocuous, encouraged the proliferation of independent organizations and social movements that sought to further promote human rights, monitor compliance, and draw international attention to abuses. Daniel Thomas has persuasively argued that this process contributed in an important way to political liberalization in Eastern Europe, the eventual demise of communism there and in the Soviet Union, and the end of the Cold War.178 Nevertheless, despite these profound developments, international enforcement of human rights in the internal affairs of sovereign states remained for the most part illegitimate through the last decades of the Cold War. The tension between international society’s firmly noninterventionist stance and its recognition of the human-rights responsibilities of states is well expressed in the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, adopted by the General Assembly in 1981.179 This declaration was the culmination of yearly resolutions on noninterference in the internal affairs of states that the assembly had passed since 1976.180 It was sponsored by Guyana on behalf of the Non-Aligned Movement, a movement that had developed out of the Bandung Conference of 1955.181 The declaration was fiercely anti-interventionist. It explicitly proclaimed that it was unacceptable to appeal to human-rights principles to justify interference in the affairs of sovereign states: “the principle of non-intervention and non-interference” involves “the duty of the State to refrain from the exploitation and distortion of human rights issues as a means of interference in the internal affairs of States, of exerting pressure on other States or creating distrust and disorder within and among States or groups of States.” As in the 1965 declaration discussed earlier, the right to nonintervention was tied to the right of peoples to self-determination. The declaration reaffirmed “the right to self-determination and independence of



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peoples under colonial domination, foreign occupation or racist regimes.” Nevertheless, the declaration also plainly insisted that states had a duty to protect the rights of their own people, particularly those rights so cherished by postcolonial states of self-rule and racial equality. It declared: The right and duty of States to observe, promote and defend all human rights and fundamental freedoms within their own national territories and to work for the elimination of massive and flagrant violations of the rights of peoples, and, in particular, for the elimination of apartheid and all forms of racism and racial discrimination.182

To summarize, through the course of the Cold War, international society increasingly recognized that sovereign statehood entailed a responsibility to promote and defend the human rights of a population. Moreover, to some extent, human-rights issues within states were understood to be beyond the scope of domestic jurisdiction and a legitimate matter of international concern and scrutiny. By the mid-1980s Vincent could write, “At least rhetorically, states have accepted the pursuit of human rights as a proper concern of the society they form.”183 However, increased monitoring and reporting was not the same as enforcement. While the human-rights responsibilities of sovereign states may have been codified in international treaties, sovereigns were not held accountable to international society for the fulfillment of these responsibilities. The protection of human rights was trumped by a firmly entrenched and almost unconditional principle of nonintervention. h The supposed “traditional” rights of sovereignty were firmly and unambiguously established by the society of states for the first time only in 1945. Over the next few decades these rights to self-government free from external interference were fiercely promoted by postcolonial states in particular, and they became entrenched in international law. To suggest that these rights have been timeless and logically necessary corollaries of sovereignty since the beginnings of the international system (perhaps at Westphalia) is historically inaccurate. Moreover, such a suggestion reifies one particular construction of the rules of sovereignty. It casts a historically contingent and contested social construction as an enduring and foundational definition of sovereignty that, depending on one’s perspective, ought to be either conserved against radical and dangerous new challenges or finally discarded because of the suffering it has long facilitated. In reality, these supposed

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“traditional” rights have been clearly established for only a small portion of the long history of the construction of sovereignty. Moreover, while they may have prevailed for the most part, the “traditional” rights of sovereignty were not uncontested during the Cold War. A competing vision of legitimate statehood that insisted that states had a responsibility to promote and defend the human rights upon which their sovereignty was grounded was repeatedly hinted at in the adoption of humanrights covenants, in the opposition of postcolonial and Soviet bloc states to racial discrimination and denial of self-rule, and in Western demands for increased monitoring and reporting of human-rights violations within states. To be sure, international society remained unwilling to enforce the humanrights responsibilities of states. The firmly entrenched right of nonintervention gave little ground to the idea of human rights. Nevertheless, it was increasingly accepted that not only were states accountable to their own people, but they could legitimately be subject to scrutiny and condemnation by international society. In 1986, Vincent observed that “there is now an area of domestic conduct in regard to human rights . . . that is under the scrutiny of international law.” He acknowledged that this did not amount to a right of intervention. “But it does expose the internal regimes of all the members of international society to the legitimate appraisal of their peers,” he added. He somewhat prophetically concluded: “This may turn out not to have been a negligible change in international society.”184 The final chapter of this book examines the development of the rules of sovereignty along these lines from the end of the Cold War to the present day.

chapter six

The Rise of the Responsibility to Protect

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his final chapter examines the emergence of the “responsibility to protect” concept and its implications for the rules of sovereignty in the light of the historical story that this book has told. It explores the degree to which the “traditional,” noninterventionist conception of sovereignty, which had become so firmly entrenched during the Cold War, has been reconstructed since the beginning of the 1990s, and it considers the parallels that can be observed between new understandings of sovereignty and the various theories and practices of sovereign accountability that earlier chapters have traced. Central to the “responsibility to protect” concept is the idea that sovereign states are responsible for the protection of their populations from mass atrocities and that they are accountable not only to their own people but also to international society for the performance of this duty. The concept was developed by an international commission in 2001 following significant developments in theory and state practice during the 1990s. It was unanimously endorsed by the society of states at the UN World Summit in 2005. In 2011, the Security Council appealed to the concept and for the first time authorized the use of force against a functioning sovereign state, Libya, without its consent, for the purpose of protecting civilians from the threat of mass atrocities. These developments reflect a dramatic departure from the Cold War understanding of sovereignty. Indeed, they are in certain senses unprecedented in the long history of sovereignty. Never before had the principle of international enforcement of sovereign responsibilities been so clearly endorsed by international society as it was in the 2005 summit agreement. And never before had the society of states agreed to authorize military intervention to protect the population of a functioning and nonconsenting member of the family of nations as it did with respect to Libya in 171

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2011, with the exception of those interventions in the “anomalous” Ottoman Empire in the nineteenth century.1 Nevertheless, as I have maintained in this book, these developments do have deep historical roots, and, as the book’s conclusion explains, we would do well not to forget them. This chapter proceeds in four parts. The first two examine developments in the 1990s in which ideas about responsible and conditional sovereignty were newly promoted and partially embraced. First, I consider arguments offered in that decade by Francis Deng and three UN secretaries-general seeking to advance the protection of human rights through a redefinition of sovereignty. I observe that these new ideas were met with firm resistance by many non-European states but also outline how some African states ultimately embraced a redefinition of sovereignty in these years. Second, I examine the practice of humanitarian intervention in that decade in order to assess the extent to which the society of states actually did reconstruct the rules of sovereignty. I observe that, while international society was increasingly willing to pass judgment on the internal affairs of states and to intervene in the affairs of “failed states,” it was unable to reach consensus on the legitimacy of nonconsensual intervention in functioning states that had failed to responsibly secure the human rights of their populations. In the third section, I explore the articulation of the “responsibility to protect” concept by an international commission in 2001, consider the unanimous endorsement of the concept by member states at the UN World Summit in 2005, and examine the extent of international consensus on the concept as revealed in debate about the crisis in Darfur between 2004 and 2007 and debate about a report of the secretary-general on the concept in 2009. I observe that, while the agreement negotiated in 2005 clearly declared that states were accountable to international society for the protection of their populations, some key states continued to express principled opposition to the notion of nonconsensual enforcement of sovereign responsibilities. Finally, I consider the landmark Security Council resolution adopted in 2011 that authorized nonconsensual military intervention in Libya for the purpose of protecting civilians from mass atrocities. I observe that this was the first time in the history of the UN that such a resolution had been passed, but I also note that it was justified in familiar language: the defense of innocents, the punishment of tyranny, and the support of the will of a sovereign people. These justifications echoed arguments for the international enforcement of sovereign responsibilities that had been repeatedly heard since sovereignty first emerged in early modern Europe and thus pointed to the deep historical roots of the newly constructed relationship between sovereignty and responsibility.



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“Sovereignty as Responsibility” Secretaries-General Javier Pérez de Cuéllar and Boutros Boutros-Ghali were at the forefront of calls for a redefinition of sovereignty in the early 1990s, building on developments in the international promotion of human rights in the 1970s and 1980s discussed in the preceding chapter. In his report to the General Assembly in 1991, Pérez de Cuéllar stated his belief that “the protection of human rights has now become one of the keystones in the arch of peace.” He argued that this protection “now involves a more concerted exertion of international influence and pressure through timely appeal, admonition, remonstrance or condemnation and, in the last resort, an appropriate United Nations presence, than what was regarded as permissible under traditional international law.” With powerful arguments that challenged the understanding of sovereignty that prevailed during the Cold War, he continued: “It is now increasingly felt that the principle of non-interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated with impunity.” He acknowledged the strength of the case for not impinging on the sovereignty of states but argued that this case “would only be weakened if it were to carry the implication that sovereignty, even in this day and age, includes the right of mass slaughter or of launching systematic campaigns of decimation or forced exodus of civilian populations in the name of controlling civil strife or insurrection.”2 Ten years before the International Commission on Intervention and State Sovereignty would more famously do so,3 Pérez de Cuéllar encouraged a conscious shift in the language from a right of intervention to an international responsibility to bring relief to those who are suffering. Through such a shift, the secretary-general hoped to circumvent the tension between sovereignty and human rights: We need not impale ourselves on the horns of a dilemma between respect for sovereignty and the protection of human rights. The last thing the United Nations needs is a new ideological controversy. What is involved is not the right of intervention but the collective obligation of States to bring relief and redress in human rights emergencies.4

He added a word of caution against the abuse of this new principle. Chaos and anarchy would ensue, he argued, if the defense of human rights became a platform for interfering in the domestic affairs of states and eroding their sovereignty.5

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The following year, Boutros-Ghali claimed that “it is undeniable that the centuries-old doctrine of absolute and exclusive sovereignty no longer stands, and was in fact never so absolute as it was conceived to be in theory.” He wrote of a need to rethink state sovereignty and suggested an alternative, which was the “universal sovereignty that resides in all humanity” that underlies “the rights of the individual and the rights of peoples.”6 In the early 1990s, the immense suffering endured by millions of people who had been internally displaced through war and violence was gaining increased attention. Despite the unease of many states, the UN Commission on Human Rights authorized Boutros-Ghali to appoint Francis Deng, a former Sudanese diplomat, to the role of representative to the secretary-general on internally displaced persons, and over the next decade Deng sought to establish guiding principles for the international protection of the internally displaced.7 With Roberta Cohen, a senior fellow at the Brookings Institution, he developed a conceptual framework that demanded international access to, and protection of, the increasing number of war victims that had not crossed international boundaries. This protection would necessarily involve external scrutiny, interference, and perhaps even coercive intervention in the domestic affairs of sovereign states. Deng justified such protection according to a concept that he termed “sovereignty as responsibility.”8 Sovereignty, Deng argued, was not merely a right but a responsibility. “Normatively, to claim otherwise would be to lose sight of its purpose in the original context of the social contract, taking the means for the end.”9 The right to self-government and freedom from external interference was merely a means to the end of good governance and the provision of basic needs. If the obligation “to preserve life-sustaining standards for its citizens” was not met, “the right to inviolability should be regarded as lost, first voluntarily as the state itself asks for help from its peers, and then involuntarily as it has help imposed on it in response to its own inactivity or incapacity and to the unassuaged needs of its own people.”10 According to Deng’s formulation, the sovereign state was accountable not only to its citizens but also to international society. Woodrow Wilson’s secretary of state, Robert Lansing, had acknowledged that the sovereign was responsible to the people, but he had maintained that, with respect to international society, “the essence of sovereignty was the absence of responsibility.”11 Deng now claimed that it was insufficient to argue that a government was responsible only to the people that it governed because “when people are oppressed, their power to hold their governments accountable becomes very limited.”12 Governments were therefore also responsible to interna-



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tional society, and international society was, in turn, responsible for holding governments to account.13 The “upper limit” of international action to reconcile sovereignty with responsibility, Deng suggested, was humanitarian intervention.14 As previous chapters have demonstrated, the conceptualization of sovereignty advanced by Deng had deep historical roots. For Deng, sovereignty entailed stern responsibilities, just as it had for early modern theorists of absolute monarchical rule, and sovereign authority was legitimate only so long as it secured the rights and liberties of peoples, just as it had been for theorists of popular sovereignty and the American and French revolutionaries. Further, Deng insisted that these rights and liberties were appropriately secured by international society rather than only by the people themselves. This claim echoed early modern arguments about the right of neighboring princes to punish tyrants and rescue their oppressed subjects as well nineteenth-century claims about the right of “humanitarian intervention”; it resonated with international society’s historical demands for religious toleration and the protection of minority rights and its institutionalization of the responsibilities of trusteeship; and it had been hinted in the development of the international human-rights regime and in the international response to South African apartheid during the Cold War. Nevertheless, Deng’s clear and concise articulation of a notion of “sovereignty as responsibility” was groundbreaking. It repudiated the noninterventionist arguments that had become so dominant during the Cold War, and it asserted that international society bore the authority to decide when to interfere in the domestic affairs of states to protect their populations. This conceptualization of sovereignty was placed squarely on the international public agenda a few years later by Secretary-General Kofi Annan. In a series of controversial speeches given in 1998 and 1999 in the context of the Kosovo crisis, Annan charged that sovereignty was being redefined to include responsibilities for the protection of human rights. Recalling the fact that the UN Charter was issued in the name of “the peoples” rather than the governments of the United Nations, Annan declared: “The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power.” After all, he continued, how else were we to interpret steps taken by member states in the General Assembly, soon after signing the charter, to condemn apartheid and to prohibit the crime of genocide?15 He argued that, whereas the attainment of fundamental freedoms once centered on the attainment of sovereign independence

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and freedom from external interference, we had entered a new era in which fundamental freedoms should also involve the protection of rights beyond borders: Nothing in the Charter precludes a recognition that there are rights beyond borders. Indeed, its very letter and spirit are an affirmation of those fundamental human rights. In short, it is not the deficiencies of the Charter which have brought us to this juncture, but our difficulties in applying its principles to a new era; an era when strictly traditional notions of sovereignty can no longer do justice to the aspirations of peoples everywhere to attain their fundamental freedoms.16

This was a provocative formulation. Only a few decades earlier, anticolonialists had fought for the fundamental human right of sovereign statehood for subject peoples. Annan recognized the validity of this struggle but argued that the attainment of sovereign statehood was no longer sufficient to satisfy the demands of fundamental human rights. In instances where the fundamental freedoms of people, which he termed “individual sovereignty,” were not protected through sovereign statehood, international society needed to intervene to protect them. The secretary-general acknowledged that “any such evolution in our understanding of state sovereignty and individual sovereignty will, in some quarters be met with distrust, skepticism, even hostility.” Nevertheless, he insisted, “It is an evolution that we should welcome.”17

Opposition to New Ideas As Annan recognized, suggestions that new constraints should be placed on the exercise of sovereign authority were met with strong opposition. Those African and Asian peoples who had struggled so hard to finally achieve their sovereign independence and had so fiercely defended their sovereign right of noninterference during the Cold War were wary of attempts to revise the rules of sovereignty in this new era. Chapter 4 examined how European international society in the nineteenth and early twentieth centuries subjected non-European peoples to rules that were very different from those that governed relations between European states. Memories of subjection, indignity, racism, and often violent oppression remained fresh in the minds of these non-European peoples. The Chinese, for example, remembered the period between the first Opium War of 1839 and the establishment of the



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Peoples’ Republic of China in 1949, a period in which they were excluded from membership in the European family of nations and subject to “unequal treaties,” as the “century of humiliation.”18 Having finally gained the independence long enjoyed by Europeans, these states were less than enthusiastic about allowing new conditions to be placed on their sovereignty that could facilitate a revival of Western practices of paternalism and imperialism and standards of “civilization.” In 1991, a Ghanaian spokesman for the Group of 77 explicitly tied their concerns about international interference to their colonial experiences: The Group of 77 is slightly worried that some of us [in the General Assembly] may not be sensitive to certain pleas for an abiding respect for the sovereignty of nations. Our concern stems from our historical past, when many of us, as colonial subjects, had no rights. The respect for sovereignty is not an idle stipulation that can be rejected outright in the name of even the noblest gestures.19

Those who opposed the idea that international scrutiny of a state’s internal affairs could be justified in the name of universal human rights appealed to notions of cultural relativity and so-called Asian values, and they argued that the immediate need for national unity took priority over human rights.20 Some characterized the universal application of human rights as a ploy by Western states to advance their own self-interests. Others simply asserted the shield of inviolable national sovereignty.21 In 1992, Chinese prime minister Li Peng declared: In our view, such basic principles as sovereignty equality of memberstates and non-interference in their internal affairs as enshrined in the charter of the United Nations should be observed by all its members, without exception. . . . In essence, the issue of human rights falls within the sovereignty of each country. A country’s human rights situation should not be judged in total disregard of its history and national conditions. It is neither appropriate nor workable to demand that all countries measure up to the human rights criteria or models of one or more number of countries.22

During the discussion of a report by Deng on internally displaced persons in the 1993 session of the Commission on Human Rights, the representative of China castigated those “self-interested” states that were engaging in

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practices that had “led to the violation of principles and purposes of the UN Charter, and the impairing of the sovereignty and dignity of many developing countries.” The Chinese representative continued: The urgent issue is to remove as soon as possible the imposition of their own human rights concepts, values and ideology by a few countries who style themselves as “human rights judges”: and the interference in internal affairs of other countries by using human rights as a means of applying political pressure. The victims of such practice are developing countries whose people suffered from violation of human rights and fundamental freedoms for a long time before and are now making great efforts to safeguard their sovereignty and independence for their survival and development.23

Developing states feared that they were yet again being left without a voice in the creation of normative programs for justifiable interference in the internal affairs of states. Yet Western states could not as easily ignore the demands of the developing world as they once could. Whereas the concerns and opinions of the non-European world mattered little to European international society when constructing the rules of sovereignty in the nineteenth and early twentieth centuries, the politics of legitimation had changed. The society of states now extended across the globe, and non-European peoples demanded that their voice be considered in the development of sovereignty’s rules.

Africa’s Tentative Embrace of “Sovereignty as Responsibility” The developing world was by no means unanimous in its resistance to the idea that the rules of sovereignty might be redefined. Some African states, in particular, believed that it was in their interest to embrace such new ideas. For generations, Africans had endured unwelcome interference in their affairs, first by imperial powers and later by the competing superpowers. With the end of the Cold War, however, as one observer remarked, “Many African states now fear[ed] neglect more than intervention.”24 External interference in African affairs had enabled some so-called quasi states to remain viable during the Cold War.25 There was now a danger that neglect would lead to state failure. The failure of the Organization of African Unity (OAU) to prevent mass atrocities in Idi Amin’s Uganda in the 1970s and in Rwanda in 1994 further increased the desire among African states to work together to



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promote and defend the human rights upon which their self-determination and independence had been grounded.26 Consequently, African states displayed an increasing willingness in the 1990s to reconsider the rules of sovereignty and to permit external interference in the affairs of states for the purpose of ending internal conflicts and protecting human rights, especially if the intervention was undertaken by other African states. The charter of the OAU, which was founded in 1963, understandably emphasized the sovereign independence of African states. It established rules of sovereign equality and noninterference in domestic affairs and demanded respect for the sovereignty and territorial integrity of member states. None of the charter’s principles made any reference to human rights.27 During the Cold War, the OAU displayed a willingness to take steps to promote human rights but not to act to protect them.28 By the early 1990s, however, African leaders had begun to press for change. In 1992, OAU secretary-general Salim Ahmed Salim observed that “the doctrine of non-intervention precludes the possibility of accountability on the part of states” and argued that there is a need to “maintain a balance between national sovereignty and international responsibility.” He spoke of a consequent need to reconsider the meaning of sovereignty: “We should talk about the need for accountability of governments and of their national and international responsibilities. In the process, we shall be redefining sovereignty.”29 Later that year Salim spoke of the need for African states to be accountable to each other. He appealed to African values of kinship and suggested that “every African is his brother’s keeper, and that our borders are at best artificial.” Therefore, he argued, “We in Africa need to use our own cultural and social relationships to interpret the principle of noninterference in such a way that we are enabled to apply it to our advantage in conflict prevention and resolution.”30 At an OAU summit in 1998, Nelson Mandela forcefully declared, “Africa has a right and a duty to intervene to root out tyranny.” He told his fellow Africans that “we must all accept that we cannot abuse the concept of national sovereignty to deny the rest of the continent the right and duty to intervene when behind those sovereign boundaries people are being slaughtered to protect tyranny.”31 African states were coming to an understanding that in certain circumstances they needed outside assistance more than they needed the protection of the principle of nonintervention. While many Africans remained wary of intervention by non-African states, they displayed a willingness to accept intervention against African states by fellow African forces in the name of human rights from as early as the intervention by the Economic Community of West African States (ECOWAS) in Liberia to end hostilities between warring parties in August

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1990. The intervening states justified their action on a number of grounds, including the fact that the violence had led to “the massive destruction of property and the massacre by all the parties of thousands of innocent civilians, including foreign nationals, women and children . . . contrary to all recognized standards of civilized behavior.” They noted that “there is a government in Liberia which cannot govern and contending factions which are holding the entire population as hostage, depriving them of food, health facilities and other basic necessities of life.” Moreover, the developments in Liberia, they asserted, “have also led to hundreds of thousands of Liberians being displaced and made refugees in neighboring countries, and the spilling of hostilities into neighboring countries.”32 The two African members of the UN Security Council at the time, Ethiopia and Zaire, were unwilling to have the Security Council deal with the internal affairs of Liberia, and yet most African states themselves either explicitly or implicitly endorsed the armed intervention.33 In doing so, these once firm defenders of the sovereign right of nonintervention recognized that human-rights abuses within a sovereign state were worthy of the attention of the wider African community. In 1998, ECOWAS forces intervened in Sierra Leone to restore a lawful government that had been overthrown and in Guinea-Bissau at the request of President Vieira in response to armed rebellion. The same year, the Southern African Development Community intervened in response to election unrest in Lesotho and to support President Kabila against rebel forces in the Democratic Republic of Congo. While African states certainly cherished their right of nonintervention, over the course of the 1990s they increasingly accepted that this right ought to be conditional. Recognition of the dangers of state failure and a desire to cooperate to prevent mass atrocities and humanitarian crises prompted many African leaders to embrace new ideas about the responsibilities of sovereignty. In sum, the intellectual foundations for a reconstruction of the rules of sovereignty were laid in the 1990s. The idea that sovereigns are accountable not only to their own people but also to the society of states has deep historical roots. In the 1990s, such a concept was clearly articulated as a repudiation of the noninterventionist conception of sovereignty that had become so dominant since the end of the Second World War. However, challenges to sovereign rights of noninterference and nonintervention were firmly rejected by many non-Western states. This resistance had equally deep historical roots. Non-Western peoples deeply cherished those sovereign rights that they had only recently attained, and they feared a revival of past practices of intervention by the strong in the affairs of the weak. Never­ theless, some non-Western states, particularly in Africa, were open to the



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idea that a redefinition of the rules of sovereignty could actually strengthen their peace and security. While some states may have been willing to embrace new ideas about legitimate statehood, however, consensual change in the rules of sovereignty was not going to come easily for international society in the 1990s.

The Decade of Humanitarian Intervention The 1990s are often described as a decade of humanitarian intervention.34 As late as 1989, the Panamanian ambassador had declared in the Security Council that “no argument can possibly justify intervention against a sovereign state.”35 Over the next ten years, international society would demonstrate an increased willingness to hold states to account for the treatment of their populations. This was facilitated by the ending of bipolar conflict. The end of the Cold War profoundly changed the dynamics of international relations and made possible an increase in Security Council activities in pursuit of international peace and security. In its first forty years, the council had authorized only fourteen peacekeeping missions. In 1988–89, five new peacekeeping missions were deployed.36 The relative success of these missions encouraged a dramatic increase in council activity. Between 1946 and 1989, the council had adopted 646 resolutions at an average of fewer than 15 per year. Between 1990 and 1999, it adopted 638 resolutions, averaging around 64 per year. During the Cold War, the council had adopted 24 resolutions that referred to the terms of chapter VII of the UN Charter. In 1993 alone, it adopted 27 such resolutions.37 In his report to the UN General Assembly at the end of 1991, Secretary-General Pérez de Cuéllar enthusiastically observed: “The extinction of the bipolarity associated with the cold war has no doubt removed the factor that virtually immobilized international relations over four decades. It has cured the Security Council’s paralysis and helped immensely in resolving some regional conflicts.”38 In contrast to its earlier stagnation, the council repeatedly addressed questions directly related to the tension between human rights and noninterference, and it concluded again and again that armed conflicts, mass atrocities, and humanitarian crises occurring within sovereign states were legitimate matters for discussion, condemnation, the imposition of sanctions, and even the deployment of military force. The discourse of “sovereignty as responsibility” featured very little in international society’s debates about “humanitarian intervention.” These debates were, for the most part, framed in terms not of alternative conceptions of sovereignty but of “sovereignty versus human rights.” The

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supposed “traditional” definition of sovereignty had become so entrenched that sovereignty was understood in terms of a right to nonintervention, and the international enforcement of human rights was framed as its antithesis. While it may not have adopted the language of sovereign responsibilities, international society did increasingly accept that sovereign states ought to be answerable for their actions. However, the degree to which the society of states was willing to alter the rules of sovereignty should not be overstated. Crucially, despite the apparent prevalence of “humanitarian intervention” in the 1990s, there was actually not a single instance in which the Security Council authorized military intervention for humanitarian purposes against a functioning state without the government’s consent. The council authorized military interventions in response to humanitarian crises and mass atrocities in regions such as eastern Zaire (1996) and East Timor (1999) with the consent of the host government and in Somalia (1992–94), where governmental authority had collapsed. Coalitions of Western states also intervened in northern Iraq (1991) and Kosovo (1999) without sovereign consent, although the Security Council did not explicitly authorize them to do so. In numerous instances, therefore, the responsibilities of sovereign states to protect the rights of their populations were enforced by international society or by groups of states. And yet there remained firm opposition among key states to attempts to redefine the rules of sovereignty and to weaken the right of states to nonintervention, and this precluded the passage of any resolutions authorizing nonconsensual intervention against functioning states.39 Moreover, while nonconsensual intervention in northern Iraq at the beginning of the decade may have been greeted with tacit acceptance by international society, NATO’s operation in Kosovo at the decade’s end was met with fierce condemnation, particularly from Russia, China, and India. Nevertheless, through the course of the 1990s, the society of states did modify the rights and responsibilities of sovereignty in important ways that this section will briefly outline.

Humanitarian Interventions: 1991–96 On April 5, 1991, the Security Council adopted Resolution 688 in response to the brutal repression of Kurdish civilians in northern Iraq in the wake of Operation Desert Storm. While the resolution did not explicitly authorize enforcement measures, it notably condemned “the repression of the Iraqi civilian population in many parts of Iraq . . . the consequences of which



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threaten international peace and security in the region,” demanded that Iraq “immediately end this repression,” and insisted that Iraq allow “immediate access by international humanitarian organizations to all those in need of assistance.” Participants in the council debate were conscious that they were setting a precedent for future council action, and their statements provide an early indication of the controversy that the idea of humanitarian intervention would generate in the 1990s. Three states voted against the resolution, and another two abstained on the grounds that it dealt with the internal affairs of a sovereign state. Echoing claims about domestic jurisdiction that had been frequently heard during the Cold War, these states forcefully argued that the human rights and humanitarian concerns included in the draft resolution were beyond the purview of the council. Indeed the mere discussion of these domestic concerns, they claimed, was prohibited by article 2(7).40 Some of the ten states that did support the resolution noted the exceptional nature of the situation, arising as it did in the aftermath of the Gulf War.41 Several others emphasized the “transboundary impact” of mass refugee flows and insisted that the resolution did not weaken their commitment to the rule of noninterference in the internal affairs of states. Ecuador, for example, argued that the council could not have appropriately addressed the situation if it “were dealing solely with a case of violation of human rights by a country within its own frontiers.”42 However, some states asserted that human-rights violations alone could justify the council’s action. France argued that member states were required to make the demands that they had made in the resolution in order to live up to their human-rights commitments under the UN Charter.43 Britain maintained that the action taken did fall within the scope of the council’s authority because article 2(7) “does not apply to matters which, under the Charter, are not essentially domestic, and we have often seen human rights—for example in South Africa—defined in that category.”44 The sensitivity of council members to the question of infringement on the internal affairs of sovereign states had ensured that the resolution was not passed under chapter VII of the UN Charter, and China and the Soviet Union made it clear that they would not support a subsequent resolution authorizing the use of force.45 Nevertheless, Western governments acted to forcibly protect civilians in northern Iraq by establishing safe havens and no-fly zones. The significance of “Operation Provide Comfort,” Nicholas Wheeler argues, is that a coalition of Western states pushed against the normative constraints of international society:

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For the first time a group of states publicly justified the use of force in terms of enforcing compliance with a Security Council Resolution that demands respect for human rights. In doing so, Western states challenged dominant understandings of the sovereignty rule that hitherto prohibited even as limited an intervention as Operation Provide Comfort.46

The following year, the society of states was confronted with a humanitarian crisis that threatened the lives of up to three-quarters of the population of Somalia.47 In the aftermath of the adoption of Resolution 688 on northern Iraq, wary that Western states were seeking to dictate new rules of international order, many developing states had reaffirmed their belief that humanitarian assistance and other measures should never be imposed on a sovereign state without its government’s consent. In a General Assembly debate on the strengthening of UN coordination of emergency humanitarian assistance in response to man-made and natural disasters, the spokesman for the Group of 77 reaffirmed that “an essential attribute of . . . sovereignty is the principle of consent, one of the cornerstones in the democratic ideal itself.”48 The Tunisian representative cautioned: “Any reform in this field should, in our view, fully respect national sovereignty as embodied in the consent given or the request made by the country concerned.”49 In the case of Somalia, however, the question of the consent of a governmental authority did not come into play because no such authority existed. In a letter to the Security Council in late November 1992, SecretaryGeneral Boutros-Ghali argued that the necessary response to the crisis was for the Security Council to authorize the use of force under chapter VII of the charter, since “no government exists in Somalia that could request and allow such use of force.”50 On December 3, for the first time in its history, the council explicitly authorized a substantial military intervention by member states to protect a population without an invitation from the government of the target state. In Resolution 794, the council stated that it was acting under the aegis of chapter VII and authorized the secretary-general and member states “to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia.” The unanimously adopted resolution is a landmark in the story of the development of sovereignty because it described human suffering within Somalia as a “threat to international peace and security,” thus allowing the council to authorize chapter VII military intervention.51 Whereas Resolution 688 had noted the transborder consequences of Iraq’s repression of Kurdish civilians, Resolution 794 plainly declared that the “the magnitude



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of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security.” Thus intervention in the affairs of a sovereign state was authorized in the name of human rights. In contrast to the debate on northern Iraq, no state argued that the situation in Somalia was outside the competence of the Security Council.52 However, a number of states did emphasize that this was an exceptional case on the grounds that governmental authority had collapsed. The words “unique,” “extraordinary,” and “exceptional” were inserted into the resolution as a concession to concerns expressed by China and India that the case “should not be seen as setting a precedent for humanitarian intervention.”53 Nevertheless, while noting the uniqueness of the situation, Zimbabwe acknowledged that in adopting the resolution the Security Council was unable to avoid creating “a precedent against which future, similar situations will be measured.”54 Member states made clear that intervention against this sovereign state could be rightly authorized only because governmental authority had collapsed.55 Yet the precedent of authorizing intervention in the affairs of a “failed state” was itself significant. Some states also framed international society’s action as an intervention in support of a sovereign people. Rather than infringing on the sovereignty of the Somali people, these states claimed, the intervention aspired to assist them in responsibly governing themselves and securing their individual rights. The representative for Ecuador noted: Somalia is a country without a government, without any responsible authority . . . that can be the interlocutor of the United Nations for the purpose of agreeing upon a humanitarian-assistance operation. But the Somali people—solely sovereign in respect of its destiny—is our interlocutor, and we are heeding its call.56

At the beginning of “Operation Restore Hope,” US president George H. W. Bush similarly emphasized that international society was intervening not to revoke but to support the sovereignty of the Somali people: “To the people of Somalia I promise this: we do not plan to dictate political outcomes. We respect your sovereignty and independence.”57 Such claims invoked ideas about popular sovereignty that would become a central feature of justifications for subsequent Western-led interventions, particularly in Iraq (2003) and Libya (2011).

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The precedents set in northern Iraq and Somalia were certainly limited. Yet there is no doubt that international society displayed in these instances an increasing willingness to condemn, to impose demands, and even to authorize intervention in cases where governments failed to live up to their sovereign responsibilities for the protection of their populations. As early as 1992, scholars were beginning to observe that “a new standard of intolerance for human misery and human atrocities has taken hold. . . . Something quite significant has occurred to raise the consciousness of nations to the plight of peoples within sovereign borders.”58 Over the next few years, the Security Council confirmed its willingness to authorize interventions in the affairs of sovereign states in response to internal crises. This is not to say that international society responded quickly or adequately to each of the situations with which it was confronted. The council’s inability to consistently address grave violations of human rights was exemplified in its well-documented inaction during the tragic Rwandan genocide.59 However, such instances of inaction ought not to be attributed to a sacrosanct principle of nonintervention. As Kofi Annan observed in his 1999 report to the General Assembly, “The failure to intervene [in Rwanda] was driven more by the reluctance of Member States to pay the human and other costs of intervention, and by doubts that the use of force would be successful, than by concerns about sovereignty.”60 When the Security Council did finally authorize a substantial deployment of military forces in Rwanda, with the consent of the interim government, more than two months into the genocide, it emphasized not the transborder consequences of the violence but “the magnitude of the humanitarian crisis,” which constituted “a threat to peace and security in the region.”61 Resolutions 925 and 929 did note the “massive exodus of refugees to neighboring countries,” but the preoccupation of the Security Council was with ending the “acts of genocide [that] have occurred in Rwanda”; “the ongoing violence in Rwanda”; “the continuation of systematic and widespread killings of the civilian population in Rwanda”; and the “internal displacement of some 1.5 million Rwandans.”62 The following month, the council similarly determined that “the deterioration of the humanitarian situation in Haiti, in particular the continuing escalation . . . of systematic violations of civil liberties” constituted a “threat to peace” in the region and authorized a multinational force to use “all necessary means” to restore a legitimately elected president.63 In 1996, the council resolved that “the magnitude of the present humanitarian crisis in eastern Zaire constitutes a threat to peace and security in the region” and, with the consent of the government of Zaire, authorized the use of “all necessary means” to allevi-



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ate human suffering.64 Thus the Security Council repeatedly concluded that internal humanitarian crises and mass atrocities could constitute threats to international peace security under chapter VII and that it could rightly respond by authorizing enforcement measures. However, some states within the council continued to make a point of emphasizing the “exceptional” and “unique” nature of the situations that were being considered and insisted that the resolutions that were adopted should not be understood as diluting the principle of nonintervention in any way.65 Moreover, the council only authorized intervention in instances in which the host government had either given its consent or ceased to function.

Kosovo In 1999, NATO conducted a bombing campaign intended to bring a halt to atrocities being committed by Serbian forces against Kosovar Albanians in the Federal Republic of Yugoslavia (FRY). This action added a new spark to the humanitarian intervention debate. Operation Allied Force followed the adoption of Security Council resolutions in 1998 that condemned the violence in Kosovo, declared that the situation constituted a threat to international peace and security, and imposed mandatory arms embargos on the FRY.66 The willingness of international society to pass these resolutions was in itself noteworthy. In contrast to the hesitant language used in the debate over northern Iraq in 1991, the majority of member states accepted that consideration and condemnation of human-rights violations within the FRY was not precluded by its sovereignty, and they willingly categorized these violations as a threat to international peace and security.67 However, the resolutions did not explicitly authorize the use of military force. Russia and China made it clear in informal consultations that they would veto any draft resolution that would authorize force against Slobodan Milosevic’s Serbian regime, and Russia issued a statement declaring that “the use of force against a sovereign state without the due sanction of the UN Security Council would be an outright violation of the UN Charter, undermining the existing system of international relations.”68 On March 23, 1999, after continued human-rights violations in Kosovo and a breakdown of peace talks, NATO governments made the decision to launch air strikes against the FRY. Adam Roberts observes that Operation Allied Force was “the first major bombing campaign intended to bring a halt to crimes against humanity being committed by a state within its own borders.”69 For some states NATO’s actions represented the legitimate international enforcement of the protection of human rights in an instance where a

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sovereign state had failed to provide such protection; for others it amounted to a dangerous violation of the prevailing rules of sovereignty. Three days after the campaign began, the Security Council met to debate a draft resolution introduced by Russia that condemned NATO’s action as a breach of the UN Charter. The Indian representative advanced a powerful argument against claims by NATO members that they were acting on behalf of the international community and in the name of humanity. Noting that China, Russia, and India had all opposed NATO’s use of force, the representative declared, “The international community can hardly be said to have endorsed their [NATO’s] actions when already representatives of half of humanity have said that they do not agree with what they have done.”70 Nevertheless, Russia’s draft resolution was rejected by 12 votes to 3. Only China and Namibia voted with Russia. The Netherlands and France argued that NATO was acting in conformity with Security Council resolutions adopted in 1998.71 The United States insisted that the UN Charter did not “imply that the international community should turn a blind eye to a growing humanitarian disaster.”72 Other NATO members justified the intervention on the grounds that it was necessary to prevent a humanitarian catastrophe.73 With varying degrees of conviction, six non-Western states joined with NATO states and Slovenia in also rejecting Russia’s draft resolution.74 The rejection of the draft resolution did not amount to an endorsement of humanitarian intervention without Security Council authorization.75 Nevertheless, it is instructive to contemplate how different this scene was from those at the beginning of the decade where arguments were repeatedly made against the mere discussion and condemnation of the internal affairs of states. As Wheeler concludes, “Given that NATO’s action drove a coach and horses through the pluralist understanding of the rules governing the use of force under the UN Charter, the international reaction was very favourable.”76 When the Security Council met again three months later to discuss Kosovo, parties on both sides of the debate clearly outlined their divergent views about the relationship between sovereignty and human rights. The Dutch representative, for example, spoke of “a gradual shift in that balance” between sovereignty and human rights since the drafting of the UN Charter toward “making respect for human rights more mandatory and respect for sovereignty less absolute. Today, we regard it as an accepted rule of international law that no sovereign State has the right to terrorize its own citizens.” He reminded the Security Council of the “shameful episode” in its past when “the United Nations was apparently more indignant at a Viet-



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namese military intervention in Cambodia, which almost all Cambodians had experienced as a liberation, than at three years of Khmer Rouge genocide.” The balance between sovereignty and human rights, he argued, had shifted to the extent that this “mistaken policy” would not be repeated.77 The Chinese representative, on the other hand, insisted that the internal affairs of states should never be used as an excuse for external intervention, and he addressed the notion that human rights trump the sovereign right of nonintervention head-on: “The ‘human rights over sovereignty’ theory serves to infringe upon the sovereignty of other States and to promote hegemonism under the pretext of human rights. This totally runs counter to the purposes and principles of the United Nations Charter. The international community should maintain vigilance against it.”78 At the fifty-fourth session of the General Assembly later that year, Chinese foreign minister Tang Jiaxuan reaffirmed this position and, echoing arguments frequently heard during the Cold War, forcefully argued that human rights could only be effectively protected if the sovereign inviolability of states was ensured: “The history of China and other developing countries shows that a country’s sovereignty is the prerequisite for and the basis of the human rights that the people of that country can enjoy. When the sovereignty of a country is put in jeopardy,” he claimed, “its human rights can hardly be protected effectively.”79 In one sense, this was merely a restatement of China’s longstanding position on sovereignty. Yet it was articulated with renewed vigor in reaction to the threat that NATO’s operation posed to the existing rules of international order. In his Millennium Report to the assembly the following year, cognizant of the increasingly intractable nature of the humanitarian intervention debate, Secretary-General Annan challenged member states with the following dilemma: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that affect every precept of our common humanity?”80 In response to this challenge, the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS). In December 2001, the commission produced its report titled The Responsibility to Protect.

The Responsibility to Protect The “responsibility to protect” concept has emerged at a remarkable pace since its articulation in 2001. In less than four years, it progressed from an idea advanced by a commission of experts to be unanimously endorsed by

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member states at the 2005 UN World Summit. It has subsequently been referred to in numerous resolutions by the Security Council and the General Assembly81 and has taken a prominent place in international debate about the protection of populations from mass atrocities. The concept has been invoked by states, NGOs, and commentators both to justify and to condemn behavior and both to advocate and to deter international action in response to crises in many parts of the world.82 This section examines the articulation of the concept by the ICISS, the endorsement of the concept at the World Summit, and the deliberations on the concept by the society of states over the remainder of the decade. The story of these developments has been well told elsewhere and is well known.83 Thus, rather than offering detailed description of the minutiae of international debate over this decade, I will focus on explaining the principal implications of key developments for the rules of sovereignty. In particular, I observe that, while the summit agreement did boldly and clearly declare that states are accountable to international society for the protection of their populations, and while international consensus on this idea remained fairly strong over the remainder of the decade, some key states continued to express principled opposition to the notion of nonconsensual enforcement of sovereign responsibilities, just as they had in the 1990s. This opposition posed a barrier to the firm establishment of the idea that sovereigns were truly accountable to the society of states for the protection of their populations.

The ICISS Report The solution that the ICISS offered to the secretary-general’s dilemma built upon ideas about sovereign responsibilities that had been developed by Annan, Deng, and others over the previous decade. Much of the content of the report is derivative of these earlier ideas. Nevertheless, the ICISS report quickly became a touchstone for debate about sovereignty.84 The importance of the commission’s work is found in its attempt to build international consensus on ideas about sovereignty, intervention, and human rights through the formulation of the notion of the “responsibility to protect.” The “basic principles” of the report clearly echo the work of Deng. “State sovereignty implies responsibility,” the commission claimed, “and the primary responsibility for the protection of its people lies with the state itself.”85 Yet, while the “default responsibility” rests with the host state, international society bears a “residual responsibility.”86 “Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and



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the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.”87 Thus sovereigns were held to be accountable to the society of states for the protection of their populations. In its efforts to build international consensus, the ICISS was careful to affirm the inherent value of the cherished principle of sovereignty. The report declared that sovereignty was a functional principle of international relations that protects states in “a dangerous world marked by overwhelming inequalities of power and resources.” Further, the commission asserted that the principle of sovereignty had normative force in that it recognized the equal worth and dignity of peoples, protected their “unique identities and their national freedom,” and affirmed “their right to shape and determine their own destiny.”88 However, the ICISS insisted, sovereignty did not mean that states could treat their populations however they wished. Moreover, they added, no such claim was heard at any stage during the commission’s worldwide consultations.89 By changing the language of debate from the “right of humanitarian intervention” to the “responsibility to protect,” the ICISS hoped to shift the focus away from the rights of states and toward the need to protect those who require assistance.90 It also intended to emphasize that the primary responsibility rested with the state concerned and that the responsibility of international society to act in its place was activated only if the state was unable or unwilling to fulfill its responsibility. The commission claimed that, whereas the idea of the “right of humanitarian intervention” suggested that international society was in confrontation with the sovereign state, the language of the “responsibility to protect” was instead “more of a linking concept that bridges the divide between intervention and sovereignty.”91 In much the same way that the Brundtland Commission had earlier brought together the estranged notions of economic growth and environmental protection in the idea of “sustainable development,” the ICISS consciously strove to harmonize ideas of human rights, intervention, and state sovereignty through the “responsibility to protect.”92 That being said, while it eschewed the phrase “humanitarian intervention” and recommended that attention also be placed on the prevention of crises and the rebuilding of societies in their aftermath, the commission’s report was still very much focused on the question of military intervention in response to humanitarian crises and mass atrocities. Following the work of others in the 1990s, the ICISS laid out principles for military intervention derived from just-war theory including just cause, right intention, last

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resort, proportionality, reasonable prospects for success, and right authority.93 The threshold for intervention was restricted to actual or apprehended large-scale loss of life or large-scale ethnic cleansing.94 With respect to the controversial question of right authority, which had become particularly pressing in the wake of NATO’s intervention in Kosovo, the commission suggested that the UN Security Council was the most appropriate body for authorizing intervention and argued that “the task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has.”95 To this end, it recommended that council authorization should be sought in all cases prior to military intervention being carried out; that the council should deal promptly with any request for authority to intervene in response to large-scale loss of human life or ethnic cleansing; and that the five permanent members of the Security Council “should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support.”96 If the Security Council were unwilling to act in a reasonable time, ICISS suggested, the General Assembly could consider the matter in emergency special session under the “Uniting for Peace” procedure, or a regional or subregional organization could act under chapter VIII of the charter and seek subsequent authorization from the council. The permissive scope of these guidelines created apprehension among some members of international society.

The Development of International Consensus In the wake of the terrorist attacks of September 11, 2001, ideas of “sovereignty as responsibility” and the “responsibility to protect” were adapted by American officials and academics to justify the “war on terror.” Officials such as Director of Policy Planning for the State Department Richard Haass and scholars like Lee Feinstein and Anne-Marie Slaughter argued that sovereigns were responsible not only for the prevention of grave violations of human rights, as Deng, Annan, and the ICISS had insisted, but also for the prevention of the spread of international terrorism and the proliferation of weapons of mass destruction.97 This was made official policy in the 2002 national security strategy, in which the Bush administration declared its intention to “disrupt and destroy terrorist organizations by . . . denying further sponsorship, support, and sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities.”98 A further feature of



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these claims was the rejection of notions of criteria for legitimate intervention such as right authority and a subtle broadening of the argument from reactive to preventive intervention. Such expansion of the “responsibility to protect” concept risked damaging the chances for the development of international consensus; it risked confirming the suspicions of some that the concept of “sovereignty as responsibility” was merely a cloak under which powerful states would seek to advance their own self-interests. Ideas about responsible sovereignty were also put to work in justifications for the controversial invasion of Iraq in 2003, which was not explicitly authorized by the Security Council and was opposed by a significant proportion of international society. Members of the so-called Coalition of the Willing partly justified the invasion on humanitarian grounds.99 British prime minister Tony Blair invoked the language of the “responsibility to protect,” declaring that “we surely have a responsibility to act when a nation’s people are subjected to a regime such as Saddam’s.” He described an “international community” with “common rights and responsibilities” but then paradoxically attempted to justify action in defiance of the wishes of this community on the grounds that the threat posed by Saddam would otherwise go unchallenged.100 American officials offered a further, complementary justification for the invasion grounded in the idea of popular sovereignty. Secretary of State Colin Powell and National Security Advisor Condoleezza Rice both claimed that coalition forces merely wished to restore to the Iraqi people their sovereignty, which had been denied to them by a tyrannical leader.101 And they insisted that sovereignty must be exercised responsibly. The return of sovereignty needed to be managed carefully, Powell declared, so that “Iraqis are able to receive that sovereignty and act with responsible actions and responsible behavior with that sovereignty.”102 The essence of these arguments was that sovereignty was only legitimate if it was exercised responsibly by a sovereign people rather than by a tyrant. While some, including the ICISS commissioner, Michael Ignatieff, at least initially, claimed that the invasion of Iraq was justifiable on humanitarian grounds, most concluded that it was not.103 The actions of the Bush administration and its allies seemed to confirm the suspicions of numerous states that a reconstruction of the rules of sovereignty would merely serve the interests of powerful Western states who wished to interfere in the affairs of the weak. Thus the task of building international consensus on the “responsibility to protect” was made much more difficult. The ICISS cochair, Gareth Evans, observed that the “poorly and inconsistently”

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argued humanitarian justification for the war against Iraq saw efforts to build normative consensus around the concept “almost choked at birth.”104 The backlash exacerbated the need for the “responsibility to protect” to be watered down significantly over the next few years if international consensus was to develop. In December 2004, a version of the “responsibility to protect” concept that was more agreeable to many states than the original ICISS formulation was developed and adopted by a high-level panel of experts commissioned by Annan, and it was subsequently included in the secretary-general’s agenda for UN reform released in March 2005. This was critical in paving the way for the eventual endorsement of the concept at the 2005 World Summit. The panel endorsed the emerging consensus that the “responsibility to protect” should only be “exercisable by the Security Council” and suggested that the threshold for military intervention should be raised from the permissive and ambiguous level proposed by ICISS to instances of “genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.”105 In his own report, Annan accepted the panel’s recommendation that the international enforcement of the “responsibility to protect” required Security Council authorization, and he further raised the threshold for military intervention by omitting “large-scale killing” and “serious violations of international humanitarian law.”106 During the informal discussions of the General Assembly in the months leading up to the World Summit, a number of states expressed strong reservations about endorsing the concept. Algeria, Syria, and Belarus insisted that it was not compatible with international law and had no basis in the UN Charter. Egypt disputed the suggestion that Security Council authority extended beyond matters of international peace and security. Brazil supported the concept in principle but suggested that the resort to chapter VII enforcement measures to enforce sovereign responsibilities was not appropriate, and India claimed that a reference to chapter VI, which involved the pacific settlement of disputes, would be sufficient. Vietnam and Malaysia voiced fears that the concept was simply a new formulation of “humanitarian intervention,” and Venezuela and Cuba expressed concerns that endorsement of the concept would “only facilitate interference, pressure and intervention in . . . domestic affairs . . . by the superpowers and their allies.”107 Secretary-General Annan complained that non-Western countries seemed to be interested only in the economic development aspects of his reform agenda and appeared uninterested in human rights. “When we fought the colonialists,” he observed, “we shouted about these



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rights. Now that we’re masters of our own fate, you don’t hear so much about it.”108 Many states, however, did embrace the idea of the “responsibility to protect” in these months. Of particular importance was the support offered by African states. The African Union (AU) had formally replaced the OAU in 2003, and its Constitutive Act, signed on July 11, 2000, strongly reaffirmed the territorial integrity and independence of states.109 However, building on developments in Africa examined earlier in this chapter, the act also accorded the new organization “the right . . . to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.”110 This was the first international treaty to provide such a right of intervention. While the right may have been intended to be restricted to African states, it did demonstrate what the AU’s commissioner for peace and security Said Djinnit referred to as a shift from a stance of nonintervention to a doctrine of nonindifference.111 In early 2005, the AU’s Executive Council enthusiastically endorsed the “responsibility to protect.” It commended the threshold and guidelines for military intervention outlined by Annan’s high-level panel and even added that these conditions and criteria “should not undermine the responsibility of the international community to protect.”112 Alex Bellamy rightly concludes that Africa’s embrace of the concept “significantly altered the balance in the global debate by challenging the idea that the [responsibility to protect] pitched the West against the rest.”113 China also offered an important, if limited, endorsement of the concept in its position paper on United Nations reforms released in June 2005. While emphasizing that reforms should safeguard the principles of sovereign equality and noninterference in internal affairs and demanding that UN peacekeeping operations occur only with the “consent of parties concerned,” China accepted that massive humanitarian crises were “the legitimate concern of the international community” and acknowledged that the Security Council could appropriately authorize action to resolve them. “When a massive humanitarian crisis occurs,” the position paper stated, “it is the legitimate concern of the international community to ease and defuse the crisis. . . . It falls on the Security Council to make the decision in the frame of UN [sic] in light of specific circumstances which should lead to a peaceful solution as far as possible.”114 China was prepared to accept the “responsibility to protect” providing that it remained within the framework of the Security Council. Over the next few months, leading to the summit, international consensus developed in fits and starts, and draft paragraphs on the “responsibility

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to protect” were repeatedly edited to conform to the demands of states.115 There was widespread support for the principle that the state bears primary responsibility for the protection of its population. It was charged with protecting against four specific crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. International society recognized that it had a responsibility to use appropriate diplomatic, humanitarian, and other peaceful means in accordance with chapters VI and VIII of the charter to help states protect populations, but the threshold for collective action under chapter VII was set at the high level of a “manifest failure” of states to protect their populations from these four crimes. Moreover, while the United States and United Kingdom argued that unauthorized intervention ought not be expressly prohibited, a majority of states, including China, Russia, and India, insisted that, if Western interventionism was to be adequately restrained, it had to be made clear that collective action could only be undertaken through the authority of the Security Council. The originally expansive concept of the “responsibility to protect” was diluted in other ways too. The five permanent members of the Security Council rejected the ICISS’s suggestion that they might agree to refrain from exercising their veto power to obstruct the forcible protection of human rights. The delineation of criteria to guide Security Council decision making, suggested by the ICISS, the high-level panel, and Annan, was also rejected at the insistence of the United States, China, and Russia. Finally, seeking to ensure that America’s freedom of action was not constrained, US ambassador to the UN John Bolton insisted that the negotiated paragraphs should not assert that international society was obliged to act when states fail to protect their populations. He firmly declared: “We do not accept that either the United Nations as a whole, or the Security Council, or individual states, have an obligation to intervene under international law.” Member states should therefore “avoid language that focuses on the obligation or responsibility of the international community and instead assert that we are prepared to take action.”116 The idea that international society bears a “residual” responsibility to protect, an idea that had been so central to the concept originally advanced by the ICISS, was thus replaced by the more timid assertion that the society of states was “prepared” to take collective action where appropriate. The negotiated consensus, therefore, fell far short of those expansive visions of the international enforcement of sovereign responsibilities earlier conceived by Deng, Annan, and the ICISS.117 Nevertheless, the World Summit agreement represented an important landmark in the historical construction of the rules of sovereignty.



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The World Summit Agreement and the Rules of Sovereignty In paragraphs 138 and 139 of the 2005 World Summit Outcome document, the society of states declared: 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. . . . In the remainder of paragraph 139, member states also committed themselves to help states build the capacity to protect their own populations and stressed “the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law.”118 These two paragraphs spoke to the rules of sovereignty in two key ways. First, paragraph 138 confirmed that sovereignty entails a responsibility to protect populations. As this book has demonstrated, this was by no means a new idea. The obligation to eschew tyranny and to protect the safety of the people had been central to both absolutist and popular justifications for

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sovereignty since the early modern period. Moreover, this responsibility had long been confirmed not only in the domestic politics of states but also in international treaties that, since 1648, had provided for the protection of religious liberty, minority rights, the rights of colonized peoples, and human rights. Since the end of the Second World War, international society had repeatedly declared that states had a duty to promote and defend the human rights of their populations. And in adopting the 1948 Genocide Convention, states had accepted a responsibility to protect their populations from the specific crime of genocide. The World Summit document merely confirmed that states had a responsibility to protect and expanded the range of crimes that they had explicitly undertaken to prevent to also include war crimes, ethnic cleansing, and crimes against humanity, crimes that were already prohibited under international humanitarian and human-rights law. Second, paragraph 139 confirmed that international society may rightfully enforce the performance of these responsibilities and implied that such enforcement may be appropriately undertaken without sovereign consent. These were responsibilities owed not merely internally to “the people” but also externally to the society of states. Again, this was not a new idea. Early modern theorists had provided for forcible action by neighboring princes and states to punish tyranny and rescue the oppressed, and the majority of legal commentators in the nineteenth and early twentieth centuries had endorsed a doctrine of “humanitarian intervention.” More recently, the Security Council had repeatedly authorized sanctions and military interventions under certain circumstances in response to the failure of governments to protect their own people since the end of the Cold War. Moreover, the Summit Outcome’s provisions for collective action posed no challenge to existing international law, as they were expressly wedded to the UN Charter and the authority of the Security Council. Nevertheless, paragraph 139 did at least endorse what had become the customary, yet still sometimes controversial, Security Council practice of responding to mass atrocities and humanitarian crises under chapter VII of the charter. The inclusion of reference to chapter VII enforcement measures in paragraph 139 was opposed during negotiations by a group of states led by China and India, but these states ultimately agreed to accept the provision, since they did not want to be seen as responsible for preventing agreement on a Summit Outcome document.119 While the idea of international enforcement of sovereign responsibilities did have deep historical roots and had been implemented to a degree in the 1990s, it had never before been so plainly endorsed by the society of states. Of particular significance, given the often heated debate on the subject in



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the 1990s, was the fact that the application of chapter VII enforcement measures was not expressly held to be conditional upon sovereign consent. The language of paragraph 139 would appear to endorse nonconsensual intervention in the affairs of a functioning state “should peaceful means be inadequate and national authorities are manifestly failing” to fulfill their responsibilities. Indeed, it is difficult to conceive why the provision on chapter VII collective action was so contentious if not for the fact that it implied the permissibility of nonconsensual intervention. That being said, debate on the issue of sovereign consent would again rage after the conclusion of the World Summit. It would soon become clear that some states, including two of the permanent five, were by no means ready to accept the permissibility of nonconsensual enforcement of sovereign responsibilities.

Darfur The Security Council had begun debating how it should respond to violence against civilians in the Darfur region of Sudan the year before the World Summit. In the 2004 debates, several states, including Sudan itself, explicitly recognized that it bore a responsibility to protect its population,120 and the majority agreed that the situation in Darfur was a legitimate matter of international concern. However, some of these same states opposed coercive interference in Sudanese affairs on the grounds that “the main responsibility still lies with the Sudanese authorities.”121 By 2006, it had become undeniable that the Sudanese government had failed to discharge its responsibilities and protect civilians in Darfur under the terms of the 2005 World Summit agreement.122 States that were opposed to military intervention such as China and Russia could no longer plausibly argue that the threshold for collective action had not been passed. Instead, as discussion within the Security Council moved in the direction of the authorization of a UN force, these states reverted to the claim heard in the 1990s that intervention could not legitimately take place in the absence of sovereign consent. On August 31, the council adopted Resolution 1706, which “invited” the consent of the Sudanese government to the deployment of more than twenty thousand UN peacekeepers in Darfur. This UN force was to take over an overstretched mission of the AU. However, it was widely accepted that Sudanese consent would be required before UN forces could be deployed. Even though the resolution invited Sudanese consent, Russia, China, and Qatar still abstained in the vote on principle. Russia did so because the Sudanese government had not yet given its consent to intervention.123 China lamented that the phrase “with the consent of the Government of

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National Unity” was not included in the text of the resolution, since this was “a fixed and standardized phrase utilized by the Council when deploying United Nations missions.”124 Qatar suggested that the passage of the resolution in the absence of the “voluntary consent” of Sudan amounted to a contravention of the “concrete principles of international practice.”125 Moreover, several of those states that voted in favor of the resolution also acknowledged the necessity of sovereign consent.126 The British representative, for example, conceded: “It remains the case that the United Nations cannot deploy in Darfur until we have that agreement; that is not in dispute.”127 Of the fifteen Security Council members, only Ghana was willing to claim during the debate that international society could rightfully intervene in the absence of Sudanese consent. The Ghanaian representative invoked the language of the “responsibility to protect” and article 4(h) of the Constitutive Act of the AU recognizing a right of intervention and concluded, “We have reservations about the inclusion in the draft text of explicit language that implies that the Government of Sudan can take all the time it wants before allowing the United Nations to deploy in Darfur, or even refuse to do so, regardless of the cost of human lives.”128 There were pragmatic reasons for member states’ insisting on the necessity of Sudanese consent to the deployment of forces. Sudan made it clear that it would resist any nonconsensual deployment of forces, and as Ambassador Bolton later reported, “There was no country—no matter how High Minded, and despite endless posturing by some—that was actually prepared to fight its way into Darfur.”129 Moreover, a number of key public figures such as Deng and NGOs such as the International Crisis Group argued that, absent consent, intervention would likely do more harm than good.130 The acknowledgment of the need for Sudanese consent by states such as Britain, therefore, was a prudential acceptance of the reality of the situation as much as it was a concession to the demands of China and Russia.131 Nevertheless, it would seem from China’s and Russia’s principled insistence on the necessity of sovereign consent that, even if Western states did have the political will to intervene without consent and such intervention was deemed prudent, a resolution authorizing such action could not have been passed in the Security Council. China and Russia subsequently reaffirmed their principled opposition to nonconsensual interference in several council debates on the protection of civilians in armed conflict held in 2006–10. They repeatedly insisted that the “responsibility to protect” did not override the necessity for sovereign consent and that international assistance should only ever be provided with full respect for the will of the state concerned.132 These arguments seemed to represent a retreat from the provi-



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sion for collective action in the World Summit agreement. Despite the shift in international discourse toward acceptance of the idea that sovereignty entails a “responsibility to protect,” therefore, there remained firm opposition to the idea of nonconsensual enforcement of these responsibilities. The Security Council finally and unanimously authorized the deployment of a hybrid UN-AU force in Darfur in Resolution 1769, adopted July 31, 2007, but only after the Sudanese government had granted its consent.133

Debating the Responsibility to Protect In July 2009, the General Assembly met to debate the “responsibility to protect.” The focus of discussion was a report by Secretary-General Ban Kimoon titled “Implementing the Responsibility to Protect.”134 This report outlined a three-pillar strategy for implementing the agreement reached at the 2005 World Summit. The first pillar was the responsibility of the state to protect its population from the four specific crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity; the second was the commitment of international society to assist states in fulfilling their responsibilities; and the third was the need for international society to take peaceful and, in extreme cases, coercive collective action to protect populations when states are manifestly failing to provide such protection. The secretary-general and other advocates of the “responsibility to protect” had been trying to reorient discussion of the concept away from the divisive question of nonconsensual military intervention and toward a focus on peaceful and cooperative measures to encourage and assist states to fulfill their sovereign responsibilities. Of course, this implied a shift in focus away from the questions about intervention that had motivated the ICISS to develop the concept in the first place.135 However, at least partly out of a desire to build further international consensus, the secretary-general wanted to emphasize that military intervention ought to be understood as just one of several ways of ensuring the protection of populations and should be resorted to only in extreme situations. In the General Assembly debate, many states enthusiastically endorsed this approach and emphasized the need to focus on working with states to prevent the occurrence of mass atrocities so that intervention would not be necessary. However, many states did also consider the question of coercive intervention and, in contrast to the opposition that had been repeatedly expressed by some states since the World Summit, there was a remarkable degree of explicit support for the legitimacy of military force as a last resort, so long as it was grounded in the authority of the Security Council.136

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It was universally accepted that sovereignty entails responsibilities for the protection of populations (pillar one), and that the society of states has a role to play in assisting states to provide such protection (pillar two). In considering the third pillar, many states emphasized that it encompasses not only coercive measures under chapter VII of the charter but a wide range of noncoercive responses to mass suffering under chapters VI and VIII. States tended to prioritize prevention over intervention and timely assistance over the resort to force. Nevertheless, there was widespread consensus that it could in exceptional circumstances be necessary and appropriate for the Security Council to authorize coercive intervention in sovereign affairs. Numerous states spoke out in opposition to unilateral and unauthorized humanitarian intervention, but most of these same states accepted the permissibility of authorized intervention. For example, in a marked shift away from its earlier skepticism, India warned that “the responsibility to protect should in no way provide a pretext for humanitarian intervention or unilateral action” but recognized that collective action through the Security Council could be necessary as a last resort if peaceful mechanisms failed and indeed lamented that the society of states had “in the past failed in its duty to respond to mass atrocities.”137 Similarly, numerous states re­ affirmed the need to respect the sovereignty and territorial integrity of states and the principle of noninterference in internal affairs, but most of these same states also accepted that sovereign states can be rightfully held to account for the protection of their populations, through collective action if necessary.138 Chile embraced the “responsibility to protect” as the “balanced formula” that Latin American states had been looking for, between abusive unilateral intervention and lamentable international inaction, having been victims of both over the previous two centuries.139 Numerous states did express reservations about the Security Council’s role in authorizing coercive measures against sovereign states. However, these reservations tended to be based not on ideas about the inviolability of sovereign authority but on concerns about the need for the council to respond to crises consistently, impartially, and effectively. States variously argued that there was need for Security Council reform, agreement to restrain the exercise of veto, and clarification of criteria to guide decision making on the authorization of coercive measures, not only to prevent the abusive misapplication of the “responsibility to protect” but also to ensure that the council would indeed exercise its authority, where appropriate, to ensure the protection of populations. Singapore, for example, emphasized that the concept needed to be applied “without political bias or hidden agendas” but



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did not reject the legitimacy of enforcing sovereign responsibilities where appropriate. Rather, warning against abuse but also lamenting the failure to halt the Rwandan genocide, Singapore emphasized that the council needed to act “without fear or favor.”140 A very small number of states rejected the permissibility of coercive action against a sovereign state in any situation on the grounds that it contravened international law, and some insisted that the “responsibility to protect” was simply a license for unilateral intervention by the powerful against the weak.141 The vast majority of states firmly rejected these claims. For its part, China offered much the same line as it had since 2005. While emphasizing the “imperative to avoid abuse of the concept and to prevent it from becoming a kind of humanitarian intervention,” it accepted that the alleviation of a crisis involving one of the four crimes “will be a universal concern and legitimate demand of the international community” and recognized that, if peaceful measures failed, the Security Council would have “a role to play.” However, pointing to the need for consent, China emphasized that “the action taken must be in strict accordance with the provisions of the Charter and show respect for the views of government and regional organizations concerned.”142 By the end of the first decade of the twenty-first century, then, there had emerged broad consensus on the idea that sovereign states had a responsibility to protect their populations from the crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity and that they were accountable to international society for their performance of this responsibility. While there remained concerns among some states about the consistency, impartiality, and effectiveness of the Security Council when responding to mass atrocities, only a very small number of states continued to resist the notion of international enforcement of sovereign responsibilities in principle. Significantly, however, two of the veto-wielding members of the council, China and, to a less prominent extent, Russia, continued to express wariness about the authorization of military intervention in the affairs of sovereign states absent governmental consent.

Responsibilities beyond Borders To conclude this section on the “responsibility to protect,” it is worth briefly commenting on a central aspect of the concept that has been ignored in this chapter and indeed in the book generally. The “responsibility to protect,” as originally conceived by the ICISS in 2001 and as repeatedly articulated

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by states and commentators since then, entails not only the responsibility of the sovereign state to protect its population but also the responsibility of international society to act to ensure that populations are protected. This book has examined the historical development of the former. That is, it has examined the historical development of sovereign responsibilities; it has explored the varied and evolving understandings of responsibilities of sovereigns and their accountability to God, to “the people,” and to the society of states for the protection of their populations. It has demonstrated that the sovereign responsibility to protect has deep historical roots. The book has not sought to examine the latter aspect of the responsibility to protect, that is, the responsibility of international society to ensure that populations are protected. This idea that the society of states may itself bear a responsibility, rather than merely a discretionary right, to hold states to account for the performance of their responsibilities is what is most novel about the “responsibility to protect” concept. It is an idea that has its own historical roots that are worth examining, but these roots have never been as firmly established as have the roots of the sovereign responsibility to protect. In the works of Grotius, Vattel, and others since them, the freedom to exercise discretion regarding when and where to interfere in the affairs of other states, to punish tyranny and rescue the oppressed, has tended to be regarded as a prerogative of sovereignty. States have historically been understood to have a duty to protect their own populations, but the idea that they have a duty, rather than merely a right, to intervene to protect the populations of others has commonly been refuted or at least understood as “imperfect” and subordinate to the sovereign duty of self-preservation.143 Today, states still tend to refute the idea that there is a legal obligation, as opposed to a legal right, to intervene to protect populations beyond borders, as demonstrated in Ambassador Bolton’s insistence on the removal from the World Summit agreement of language suggesting a “responsibility” to take collective action.144 However, there is widespread rhetorical acceptance of the idea that international society bears some kind of moral responsibility to act to protect the populations of states that have failed to do so, and some argue that international endorsement of the “responsibility to protect” concept may create political pressures for collective action even if it does not create legal duties.145 These are potentially important developments that could reward close examination.146 However, the historical development of ideas about international society’s responsibility to protect and the present state of international consen-



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sus on the concept are not particularly relevant for the present study, which is a study of the responsibilities of sovereignty. At most, for the purposes of this book, the tentative emergence of the idea of a collective responsibility to protect populations when states fail to do so and the related insistence of some states that the Security Council needs to respond to mass atrocities and humanitarian crises with greater consistency and effectiveness point toward the increased acceptance and commitment to holding states to account for the performance of their sovereign responsibilities. It is important to recognize, however, that the measure of whether or not sovereigns are understood to be responsible and accountable to the society of states for the protection of their populations is not whether international society is committed and able to enforce sovereign responsibilities in every instance but merely whether such enforcement is understood as rightful. Put another way, it is a question of whether the society of states has a right to claim against the performance of sovereign responsibilities, not whether it has accepted a duty to do so. In 2011, in response to threats of mass atrocities against his own people by Libyan leader Muammar Gadhafi, international society again declared that it does possess such a right.

Libya in the Light of History On March 17, 2011, the Security Council adopted Resolution 1973, which authorized the use of “all necessary measures . . . to protect civilians and civilian populated areas under threat of attack” in Libya. Two days later, American and European forces began a campaign of strikes against the air defenses and forces of Gadhafi’s Libyan regime to enforce the resolution’s objectives. While the council had come close to authorizing such action on a number of occasions since the end of the Cold War, and international society had agreed in principle on its permissibility at the 2005 World Summit, this was the first time that the council had authorized the use of military force against a functioning state, without its consent, for the purpose of protecting civilians. Indeed, this was one of the few times in the long history of sovereignty that the society of states had concerted to coercively enforce the protection responsibilities of a functioning and nonconsenting sovereign state. Certainly, individual states and coalitions of states had previously intervened in the affairs of other states to protect populations, but only in the nineteenth-century interventions in the affairs of the “anomalous” Ottoman Empire did each of the great powers of the day collaborate to approve such action. The Security Council’s decision to authorize intervention

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in Libya, then, represented a landmark in the history of the relationship between sovereignty and responsibility. Nevertheless, as this final section observes, it was grounded in arguments with deep historical roots. The origins of the Security Council’s actions in Libya lay in the socalled Arab Spring, a revolutionary wave of antigovernment protests and demonstrations that had been sweeping across North Africa and the Middle East since December 2010. In the first two months of 2011, massive protests had led to the overthrow of the leaders of Tunisia and Egypt. Political demonstrations in Libya began in mid-February in the capital, Tripoli, and quickly spread across the country. In contrast to those in Tunisia and Egypt, protests in Libya quickly turned violent, partly because of Gadhafi’s decision to crush dissent and partly because of the rapid establishment of an armed opposition group, the Interim Transitional National Council.147 The Libyan leader soon made clear his willingness to commit atrocities to stay in power. He declared that he would “cleanse Libya house by house” and execute anyone who threatened the unity of the state. Echoing the infamous language employed by the Rwandan genocidaires, he urged his supporters to go out and attack the “cockroaches” and “rats” protesting against his rule.148 Whereas opposition forces enjoyed early success, Gadhafi’s forces regained the ascendancy from late February through to mid-March and were soon threatening to crush the rebel capital of Benghazi. On February 26, the Security Council unanimously adopted Resolution 1970. The resolution welcomed earlier condemnation by the League of Arab States (LAS), the AU, and the Organization of the Islamic Conference (OIC) of the serious violations of human rights and international humanitarian law being committed in Libya and asserted that the “widespread and systematic attacks . . . against the civilian population may amount to crimes against humanity.” It recalled “the Libyan authorities’ responsibility to protect its population” and stressed the need to hold to account those responsible for attacks against civilians. Acting under chapter VII of the charter, the council demanded “an immediate end to the violence”; called for “steps to fulfill the legitimate demands of the population”; referred the situation to the prosecutor of the International Criminal Court; established an arms embargo; and imposed travel bans and asset freezes on particular members of Gadhafi’s regime. As the situation continued to worsen over the next few weeks, a number of relevant regional organizations urged the Security Council to take stronger action. On March 7, the Gulf Cooperation Council called for the Security Council to “take all necessary measures to protect civilians, including enforcing a no-fly zone over Libya.” The following day, the OIC



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also released a statement supporting the establishment of a no-fly zone but rejecting the deployment of foreign ground forces. On March 10, the AU condemned the indiscriminate use of force against civilians, but it also articulated its “strong commitment to the respect of the unity and territorial integrity of Libya, as well as its rejection of any foreign military intervention, whatever its form.” Crucially, however, on March 12, the LAS made the unprecedented move of calling on the Security Council “to bear its responsibilities towards the deteriorating situation in Libya, and to take necessary measures to impose immediately a no-fly zone on Libyan military aviation, and to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in Libya” and to “cooperate and communicate with the Transitional Council of Libya and to provide the Libyan people with urgent and continuing support as well as the necessary protection from the serious violations and grave crimes committed by the Libyan authorities, which have consequently lost their legitimacy.”149 This appeal seems to have been decisive in generating agreement among key states to push for a resolution authorizing the use of force and in tempering the opposition among other states to the passage of such a resolution. The Security Council adopted Resolution 1973 on March 17, as Gadhafi’s troops advanced toward Benghazi. Hours earlier, Gadhafi had warned the city’s residents, “We are coming tonight. . . . We will find you in your closets.” He promised amnesty for those “who [would] throw their weapons away,” but “no mercy or compassion” for those who opposed his forces.150 The resolution recalled the condemnation of Gadhafi’s actions by the LAS, the AU, and the OIC and took note of the LAS’s call to impose a no-fly zone and to establish safe areas to protect civilians. Under the heading “No Fly Zone,” the council established “a ban on all flights” in Libyan airspace “in order to help protect civilians,” with the exception of flights for humanitarian purposes and those necessary to enforce compliance with the ban. Under the heading “Protection of Civilians,” the council authorized the use of “all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.” This was a groundbreaking resolution authorizing a broad range of coercive measures against a sovereign state for the purpose of protecting civilians. The resolution, sponsored by France, Britain, and Lebanon, was passed with ten votes in favor, no votes against, and five abstentions (China, Russia, India, Brazil, and Germany). Each of the abstaining states condemned

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the attacks against civilians by Gadhafi’s regime, but they also expressed concern that the use of force could exacerbate the crisis and prolong the conflict.151 Echoing to some degree the claim of John Stuart Mill that liberty could not be bestowed upon a people but that a people had to achieve it themselves, Brazil cautioned that “an important aspect of the popular movement in North Africa and the Middle East is their spontaneous homegrown nature. We are . . . concerned about the possibility that the use of military force . . . could change that narrative in ways that may have serious repercussions for the situation in Libya and beyond.”152 Russia and Brazil both lamented that the resolution authorized measures beyond those called for by the LAS. Russia claimed that it was “unfortunate and regrettable” that the resolution authorized expansive use of force rather than only a no-fly zone and warned: “Responsibility for the inevitable humanitarian consequences of the excessive use of force in Libya will fall fair and square on the shoulders of those who might undertake such intervention.”153 However, no state chose to vote against the resolution authorizing the military intervention. China declared that it was “always against the use of force in international relations” and suggested that it had “serious difficulty with parts of the resolution.” However, it also noted: “We support the Security Council’s adoption of appropriate and necessary action to stabilize the situation in Libya as soon as possible and to halt acts of violence against civilians” and declared that it attached “great importance” to the position of the LAS on the establishment of a no-fly zone. China indicated that the appeal of the LAS for the council to take action was crucial in its decision to abstain rather than veto the resolution.154 This was a noteworthy development. In recent years, China had repeatedly justified its positions in council debates on crises in Darfur, Myanmar, and Zimbabwe on the grounds of a need to respect the wishes of relevant regional organizations. In those debates, China had variously cited the positions of the AU and ASEAN to justify its opposition to international interference.155 Now, in the case of Libya, China again relied on the opinion of a relevant regional organization and suggested that the LAS’s support for international action was crucial in its decision to allow the passage of Resolution 1973. In this instance, for China, regional consent to external interference trumped the absence of sovereign consent. It is too early to tell whether China’s willingness to allow the passage of the resolution was due to the emergence of a sincere belief that international society should be guided by the wishes of relevant regional organizations when considering matters of intervention, whether China had “rhetorically entrapped” itself



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by explicitly tying its own position to the position of regional organizations when seeking to justify its opposition to nonconsensual intervention in previous years, or whether China was guided by strategic calculations about the costs of being seen to oppose the regional view.156 Either way, the acquiescence of China and other skeptical states to the Libyan intervention was significant. Some of these states, as well as the AU, subsequently expressed their reservations about the broad campaign of strikes undertaken by Western forces against Gadhafi’s regime, which they interpreted as exceeding the scope of action authorized by the Security Council and problematically blurring the distinction between civilian protection and regime change. Nevertheless, however we might judge the coalition’s attacks on Libya, it remains that the council did clearly authorize the use of force for humanitarian purposes for the first time against a functioning state without its consent.157 While the adoption of Resolution 1973 did indeed represent a landmark in the history of the relationship between sovereignty and responsibility, those who supported the resolution grounded their decision in arguments that have deep historical roots, which this book has traced. Indeed the claims advanced and the language employed to justify international action were strikingly reminiscent of arguments for the enforcement of sovereign responsibilities that have been heard since the sixteenth century. Three kinds of arguments, each with a long heritage, can be identified: the right to protect innocents, the right to hold tyrants to account, and the right to uphold the will of a sovereign people. US president Barack Obama, for example, invoked each of these arguments when he declared: “Our focus has been clear: protecting innocent civilians within Libya, and holding the Qaddafi regime accountable. . . . Our decisions have been driven by Qaddafi’s refusal to respect the rights of his people, and the potential for mass murder of innocent civilians.” He claimed that the Libyan leader “chose to ignore the will of his people” and that he had “clearly lost the confidence of his own people and the legitimacy to lead.” Consequently, a burden rested upon the society of states to respond to answer “the calls of the Libyan people.”158 The United Kingdom’s representative to the UN, Sir Mark Lyall Grant, similarly proclaimed: “the central purpose of the resolution is clear: to end the violence, to protect civilians and to allow the people of Libya to determine their own future, free from the tyranny of the [Gadhafi] regime.”159 In the debate over Resolution 1970, Secretary-General Ban had likewise touched on all three arguments when declaring that

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gross violations of basic human rights will not be tolerated and . . . those responsible for grave crimes will be held accountable. . . . As the Libyan people take their destiny into their own hands, as is their right, I hope that the new future for which they yearn—peaceful, prosperous and democratic—will soon be theirs.160

Colombia’s representative, Nestor Ostorio, had similarly spoken of the urgency of stopping the oppression of the population, the need to bring to justice those who commit crimes against humanity, and the need for the legitimate aspirations of the Libyan people to be respected.161 Ostorio subsequently lamented that the adoption of Resolution 1973 was necessary because the Libyan government had “shown that it is not up to the international responsibility of protecting its population.”162 As I have sought to demonstrate in this book, these arguments were not new. From as early as Vitoria in the sixteenth century, theorists justified the use of military force to defend “innocents” against tyranny. In the seventeenth century, Grotius defended the right to use force to hold tyrants to account and to punish them for grievous violations of natural law. The eighteenth and nineteenth centuries saw the emergence of the idea of popular sovereignty, which demanded that the will of the sovereign people be respected and declared that the authority of government derived from the people’s consent. While this idea was usually understood only in terms of justifying an internal right of resistance, the French revolutionaries asserted a right to use force externally to uphold the will of other sovereign peoples when these peoples were unable to attain liberty for themselves. These various arguments were developed in a range of ways in the nineteenth and early twentieth centuries, and again after the Cold War, by theorists and states constructing arguments for “humanitarian intervention.” In 2011 they were again put to work to justify intervention in the sovereign state of Libya. Certainly, the skepticism about the international enforcement of the responsibilities of sovereign states that China, Russia, and others continue to espouse also has a long and rich history. To offer but a few examples, in the seventeenth and eighteenth centuries Suárez, Pufendorf, and Vattel each denied the expansive right of punishment defended by Grotius, warning that such a right opened the door to all manner of “dangerous abuses,” though they each did allow for arms to be taken up to protect the innocent subjects of others in certain circumstances. In the nineteenth century, Mill rejected the idea of intervention in support of peoples struggling for liberty on the



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grounds that liberty would only be real and permanent if peoples wrested it from their oppressors themselves, and Phillimore denied the legal doctrine of “humanitarian intervention” on the grounds that it was manifestly open to abuses that would destroy the vital principles of international law. Opposition to the international enforcement of sovereign responsibilities culminated in the second half of the twentieth century, when an almost unconditional principle of nonintervention was embraced by the society of states. Those non-European states that had been subject to abusive interventionism by European powers for so many generations were fierce defenders of this principle during the Cold War, and only in recent years have they begun to accept the idea of international accountability for the protection of populations. Nevertheless, despite the long history of skepticism, this book has demonstrated that the enforcement of sovereign responsibilities in Libya does not represent a radical departure from a “traditional,” noninterventionist understanding of sovereignty that has prevailed since the early modern period. Rather, the intimate relationship between sovereignty and responsibility, which has been newly articulated since the end of the Cold War, has deep historical roots. h This chapter has examined the emergence of the idea that sovereignty entails a responsibility to protect populations from mass atrocities since the end of the Cold War. It has done so with reference to the historical story that previous chapters have told. In particular, it has observed that the noninterventionist construction of sovereignty that had become so firmly entrenched during the Cold War has been challenged by many states, and, while skepticism can still be found in some quarters, there is today widespread consensus that sovereignty and international accountability go hand in hand. There is a new willingness to condemn, to sanction, and to intervene in the internal affairs of states that fail to protect their populations. The protection responsibilities of states had never before been so clearly endorsed by international society as they were at the UN World Summit, and the international enforcement of these responsibilities had rarely been so clearly authorized by the society of states as it was when the Security Council authorized the use of “all necessary measures” to protect civilians in Libya. It may be rightly argued that international action to hold sovereigns to account is not always consistent, impartial, and effective. But what matters for the present study is that such action is today

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understood as rightful in those situations in which the society of states is willing to act. While the developments in the relationship between sovereignty and responsibility since the beginning of the 1990s have indeed been groundbreaking, they also have deep roots in historical theory and practice, and their meaning and significance are best understood when contextualized as part of this rich history. In the conclusion to the book, I will briefly retrace the historical relationship between sovereignty and responsibility before suggesting three key implications of this history for present-day thinking about the “responsibility to protect” and for the study of international relations more broadly.

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he object of this book has been to consider the relationship between sovereignty and responsibility and to examine how that relationship has developed over time. The conventional story about sovereignty told by many international relations scholars holds that sovereignty has “traditionally” entailed the absence of responsibility and accountability. Sovereignty has meant that states have a right to govern themselves however they choose, free from outside interference. Only in recent years, the tale goes, have the indefeasible rights that sovereigns have “traditionally” enjoyed been challenged by notions that sovereigns are responsible and accountable for the protection of their populations. This conventional story of sovereignty is pervasive in the study of international relations. It is told in introductory texts, it is accepted by both advocates and critics of the “responsibility to protect,” and it is promoted by leading representatives of a range of schools of international relations who treat the supposedly “traditional” rights of states as the unchanging, objective, and necessary essence of sovereignty. The argument that I have advanced challenges this conventional account. Specifically, I have argued that sovereignty has been understood to involve varied and evolving responsibilities since it was first articulated in early modern Europe. Sovereignty is not an objective and static principle but something that demands conceptual and historical inquiry. In conducting such an inquiry, I hope to have demonstrated that the notion that sovereignty entails responsibilities is not new. Rather, responsibilities have been an enduring feature of the social and historical construction of sovereignty. Indeed, the history of sovereignty is in important ways a history of demands from domestic and international societies that the rights of sovereigns be limited by those responsibilities that have underpinned the legitimation 213

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of their authority. In this conclusion, I will reiterate the historical story that I have told before considering some key implications.

The Historical Story of Sovereignty and Responsibility Central to the discourse of sovereignty as it first emerged in early modern Europe was the interdependence of authority and responsibility. The authority of the sovereign, while “absolute” and irresistible, was conceived to be limited by a range of divine, moral, and juridical duties and ideas of mutual obligation between ruler and ruled. The rights of sovereigns were conceived to be limited by the responsibilities upon which their authority was legitimated. Sovereigns may not have been responsible to the people, but they were certainly responsible for the people, and they were accountable to God for the performance of their duties. Moreover, they were widely understood to be accountable to neighboring princes for the treatment of their populations. Theorists such as Grotius insisted that there was a right to wage (just) war to punish tyrants and rescue the oppressed. Even Vattel, who first articulated the sovereign right of nonintervention in the mid-eighteenth century, accepted a right of war against sovereigns who “render themselves the scourges and horror of the human race.”1 In this early modern period we also find the tentative emergence of an embryonic international society of states. At important moments such as the Peace of Westphalia, this society demonstrated both a capacity and a willingness to construct not only rights but responsibilities of legitimate statehood, including responsibilities for the toleration of religious minorities that could be rightfully enforced by other states. The seventeenth and eighteenth centuries saw the emergence of the idea of popular sovereignty, expressed by theorists such as Locke and Rousseau and by the American and French revolutionaries, which held that rulers were responsible not only for but to the people for the protection of their safety and security. In instances where the people’s representatives failed to carry out the end for which they were trusted with authority, the people had a right to dissolve the government and to set up new trustees for their protection, through revolution if necessary. However, the concept of popular sovereignty entailed two potentially conflicting ideas: the right of individuals to liberty and equality and the right of peoples or nations to be self-governing and free from outside interference. After the French Revolution, the struggle for popular sovereignty in Europe was increasingly expressed as a struggle for the rights of nations to govern themselves rather



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than a struggle for the rights of individuals within these nations. International society established the principle of national self-determination as a legitimacy principle at the end of the First World War, and this principle was complemented by tentative rights of nations to freedom from intervention and freedom from interference in matters of domestic jurisdiction. However, while nonintervention was by now understood as a “general rule” of international law, it was held in some tension with an unsettled doctrine of “humanitarian intervention” and a weak international regime for the protection of minority rights. The tensions inherent in the idea of popular sovereignty were thus transferred to the international level. While notions of externally enforceable sovereign responsibilities for the protection of populations were to some extent being suppressed by evolving sovereign rights to self-government and noninterference within Europe in these years, the understanding that sovereignty entails responsibilities was to be clearly found in the relations between European international society and the non-European world. These responsibilities were expressed in justifications for instances of “humanitarian intervention” by European states in Ottoman affairs and by the United States in the Western Hemisphere; in the so-called standard of civilization, which was a test for admission into the family of nations imposed upon non-European states; in the abolition of the slave trade; in justifications for the denial of self-government to colonized peoples; and in the principle of colonial trusteeship. These expressions of responsibility can be rightly understood as germs of present-day notions of “sovereignty as responsibility” and the “responsibility to protect,” yet the suffering and humiliation experienced by non-European peoples that was justified according to these principles has sustained their opposition to ideas of sovereign accountability since the end of the Second World War. This imperial legacy poses a particularly acute ethical challenge for advocates of the “responsibility to protect” today, which I address later in this conclusion. The supposed “traditional” rights of sovereign states to self-government and freedom from external interference were only for the first time firmly and unambiguously established in international law in the UN Charter in 1945, and they were subsequently universalized over the next two decades through the process of decolonization. However, these rights were established in uneasy tension with provisions demanding respect for human rights, a tension that can be understood as one between competing visions of sovereignty that had been hinted at since the French Revolution. Arguments for decolonization were grounded in principles of individual rights, just as they had been for the American and French revolutionaries, but what

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this meant for the rules of sovereignty remained a matter of contestation. While international society willingly declared during the Cold War that states bore a duty to promote and defend the human rights upon which their sovereign authority was grounded, the idea that states were accountable to international society for the performance of this duty made little headway against a firmly noninterventionist conception of sovereignty. In the first decade following the end of the Cold War, the idea of the international enforcement of sovereign responsibilities was newly promoted and partially embraced. Influential individuals developed a concept of “sovereignty as responsibility,” and the society of states conducted a number of “humanitarian interventions” to protect populations, though none were authorized by the Security Council in the affairs of a functioning state without its consent. The idea of the “responsibility to protect” was then articulated by the ICISS in 2001 and unanimously endorsed by the society of states at the UN World Summit in 2005. The agreement negotiated in 2005 confirmed that sovereign states were accountable to international society for the fulfillment of their responsibility to protect their populations from mass atrocities. We have seen that the notion that sovereigns may be held to account for the protection of their populations has a long and rich history, but this principle had never before been so clearly endorsed by the society of states. In 2011, in response to the threat of mass atrocities in Libya, the Security Council for the first time in its history authorized the use of force against a functioning state, without its consent, for the purpose of protecting civilians. This action was justified with arguments that had been repeatedly heard since sovereignty first emerged in early modern Europe, yet the society of states had rarely before so clearly approved the international enforcement of sovereign responsibilities. The endorsement of the “responsibility to protect” concept by international society and its subsequent enforcement in Libya indeed represent a new chapter in the history of the relationship between sovereignty and responsibility. Yet it can also be rightly understood as international society imposing upon sovereign peoples duties not unlike those the anticolonialists of the twentieth century and the American and French revolutionaries of the eighteenth century had declared for themselves; or as international society applying to all states principles of responsibility similar to those it had adopted to govern relations with the non-European world in the nineteenth and early twentieth centuries; or indeed as international society requiring that states observe principles of natural law comparable to those that underpinned the legitimation of sovereignty when it first emerged in early modern Europe.



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Implications There are three key implications of this study. First, the reading of history that I offer provides a correction to the conventional story of sovereignty told in the discipline of international relations. Second, this correction serves to reframe present-day ethical debate about the rights and responsibilities of sovereignty by confronting the reification of the supposed “traditional” meaning of sovereignty and by refuting the claim that the idea that sovereignty entails responsibilities is a new and perhaps either a dangerous or welcome challenge to this timeless definition. It also demands engagement with the legacy of European imperialism while making clear that the history of responsibilities for the protection of populations ought not to be reduced to this troubling legacy. Third, the provision of a more accurate history clarifies the significance of recent developments in international consensus on the notion that sovereigns have a “responsibility to protect” their populations.

A Disciplinary Correction The first contribution of this study is a disciplinary correction. The story of sovereignty that is commonly told in the discipline of international relations is wrong, and this matters because it leaves us unable to understand the nature of the relationship between sovereignty and responsibility. In the conventional account, the notion of responsibility appears for the first time in the late twentieth century as an awkward category that was previously inimical to sovereignty but now needs to be integrated into our understanding of the concept alongside supposedly timeless and fundamental sovereign rights of autonomous self-government and nonintervention. This book has sought to correct this story of sovereignty and put the idea of responsibility in its proper place as an enduring feature of the historical construction of sovereignty that is no more contingent or subjective than the supposed “traditional” rights of sovereignty themselves. The conventional account also prohibits us from understanding change in international relations. We are meant to assume that sovereignty arrived fully formed sometime in the early modern period and that the many and varied subsequent breaches of the supposedly static “Westphalian” rules of sovereignty that we observe ought to be understood merely as examples of hypocritical and illegitimate behavior rather than as potential indicators of the continuous development of sovereignty’s contingent and contested rules. In accepting this conventional story, we deprive ourselves of a

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valuable resource for explaining or even adequately describing change in international relations. This book has continued the work of a number of constructivist scholars in tracing change in the international system by exploring the historical development of the social construction of sovereignty. I have argued that sovereignty has long entailed not only rights but responsibilities. But it is worth emphasizing that, just as I have observed variation and evolution in the constructed rights of sovereigns, so too have I explored how the responsibilities of sovereignty have been socially contingent and subject to change. I have demonstrated that the idea of externally enforceable responsibilities for the protection of populations, for example, has been much more historically pervasive than international relations scholars tend to recognize. But I have also examined how these responsibilities have been articulated and acted upon in a range of different ways. We cannot hope to satisfactorily describe change in international relations if we fail to comprehend such profound shifts in so central a principle as sovereignty. Consider the following important variations in the construction of externally enforceable responsibilities: First, they were initially identified in natural law but in later centuries have been positivized and institutionalized by the society of states. Second, in the early modern period they were understood to give rise to a right of sovereigns to unilaterally punish tyrants and rescue innocents, but European sovereigns in the nineteenth century understood that such coercive action ought to be undertaken multilaterally or at least with the consent of the great powers, and since 1945 it has been perceived to require the authorization of the UN Security Council. Third, the enforcement of the protection responsibilities of neighboring sovereigns was originally conceived as but one aspect of an expansive sovereign right to war and conquest. By the nineteenth century, however, the idea of humanitarian intervention was articulated in terms of an exception to a general rule of nonintervention, at least within Europe. During the twentieth century, such action was understood to be strictly curtailed by an almost unconditional right of nonintervention, and it is only since the end of the Cold War that the society of states has again been willing to allow the resort to force in response to the failure of a state to discharge its sovereign responsibilities. Fourth, the constructed responsibilities of sovereignty were originally applied to justify the protection of religious minorities within Europe and the conquest of barbarians beyond Europe. Later they were also put to work to legitimize the protection of national minorities within Europe and the protection of fellow Christians on the fringe of Europe. During the Cold



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War they were conceived to justify only the protection of formerly colonized peoples from racial discrimination and the denial of self-rule, but in recent decades they have been applied to legitimize the protection of any peoples from humanitarian crises and mass atrocities. Fifth, external enforcement of sovereign responsibilities once entailed the protection of subjects from tyrannical sovereigns and the advancement of backward peoples, but more recently it has been understood to involve the protection of citizens and the defense of their own collective will. Sixth, in certain circumstances in the past it has justified conquest and the extinguishment of sovereignty, but today it is restricted to time-limited action that preserves territorial borders and respects and upholds the will of a sovereign people. Such variations in the construction of externally enforceable sovereign responsibilities point to profound changes in the way we have conceived of humanity, significant shifts in the ideas that have guided and motivated states in their relations with each other, and key developments in the scope and nature of international society. We deprive ourselves of a fuller and richer understanding of these changes when we insist on a mythical story of timeless, static sovereignty.

Reframing the Ethical Debate The second and related contribution of the study is to reframe the presentday ethical debate about the rights and responsibilities of sovereignty. Both critics and advocates of the “responsibility to protect” tend to dehistoricize sovereignty and reify its “traditional” rights of self-government and noninterference. The present-day tension between the enjoyment of sovereign rights and the enforcement of sovereign responsibilities is then debated on questionable foundations. For critics, the reification of the “traditional” meaning of sovereignty serves to place this meaning beyond question.2 The idea that sovereigns may be held to account by international society for the treatment of their populations is thus cast as an incoherent and dangerous threat to the timeless and objective sovereign rights of autonomous self-government and noninterference. Overlooking four centuries of the construction of enforceable sovereign responsibilities, one critic claims that “a power which is ‘accountable’ to another, external, body clearly lacks sovereign authority,” and another plainly asserts that “intervention” is “proscribed by the very idea of sovereignty.”3 Insofar as the ideas underpinning the “responsibility to protect” have a history, for these critics, they are to be found in the practices of European imperialism in which the powerful imposed responsibilities

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of “civilization” on the weak in order to justify their conquest, rule, and exploitation.4 The principle of sovereignty that originally obtained within European international society and has since spread to cover the globe, on the other hand, is assumed to have no such history of externally enforceable responsibilities. Rather, sovereign self-governing peoples are said to have “traditionally” enjoyed an indefeasible right to freedom from interference that has enabled them to pursue their own respective conceptions of the good life without abstract and specious ideas of external accountability being imposed upon them. Critics charge that the “responsibility to protect” undermines popular sovereignty. Ignoring many thinkers, from sixteenth-century Huguenot writers onward, that have argued that the right of popular resistance can be fruitfully supplemented by a right of external intervention, Philip Cunliffe warns that, if states are accountable to international society for the protection of their populations, then they are necessarily less responsible to their own people. From this rather tenuous assertion, he draws the blunt conclusion that the “responsibility to protect,” therefore, “renders the exercise of power less accountable, and unaccountable power is ultimately irresponsible power.”5 He suggests it is obvious that sovereign responsibilities ought to only be enforced by the sovereign people themselves: As sovereignty inheres in the relationship between people and state, once it is properly understood then the idea of sovereignty already answers the question of who should alleviate human suffering or stamp out gross abuses of human rights: it is the people themselves who must impose their will on the state. . . . The dialectic of sovereignty contains within itself the potential to check and overthrow tyranny. It is a concept that relates people to state and subdues the latter to the former.6

Cunliffe seems to assume that tyrants can always be successfully held to account by a sovereign people. He attempts to ground his argument in history, declaring: “Without effort it is possible to bring to mind historical examples of when people have risen up against even the most fearsome and unjust of tyrannies.”7 But one can similarly “without effort” bring to mind numerous instances in which a people, particularly a minority people, have been unable to rise up and suppress tyranny. Sometimes these people have been slaughtered. Sometimes they have turned to other states for external assistance or forcible intervention. Sometimes external interference has helped to ensure the protection of these people. Other times it has not. Sometimes



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external interference has been judged by the society of states to be in accordance with the rules of sovereignty. Other times it has not. Critics like Cunliffe tend to ignore the rich history of thought and practice regarding international efforts to enforce the responsibilities of sovereignty. They fail to grapple with the complex implications of the many arguments that have been advanced and actions that have been taken to protect populations that could not protect themselves. If they considered this history, they might find reasons to intensify their criticism of the “responsibility to protect” concept. On the other hand, they might discover reasons to temper their critique. But their contribution to ethical debate is gravely impaired when they ignore the complex history of sovereign responsibilities and replace it with a fictional story. Advocates of the “responsibility to protect,” in contrast, set up the “traditional” meaning of sovereignty in order to knock it down. Since the Peace of Westphalia, they tell us, sovereignty provided rulers with a “license to kill,” a prerogative to treat their subjects as they wished.8 The notion of sovereign accountability is thereby cast as a new and welcome challenge to an outdated principle of absolute, indefeasible sovereignty that is said to have facilitated centuries of human suffering. Advocates celebrate that tyrants can finally be held to account. Indeed some even embrace a utopian vision that holds that, by reframing sovereignty in terms of responsibility, we have at last developed the conceptual tools for “ending mass atrocity crimes once and for all.”9 However, sovereignty has long entailed responsibilities for the protection of populations—it has rarely been understood to entail a “license to kill”—and yet mass atrocities have repeatedly been committed by tyrannical rulers, and these rulers have by no means been consistently held to account. History gives us little grounds for thinking that the articulation and acceptance of enforceable sovereign responsibilities is by itself enough to end grave human suffering. More worryingly, not only has the performance of sovereign responsibilities not always been enforced historically, but sometimes the idea of enforcement has itself been abused by powerful states seeking to justify self-interested interference in the affairs of weaker states.10 More concerning still, sometimes the responsibilities of sovereignty have themselves been constructed by powerful states in deeply problematic ways. When advocates exaggerate the novelty of the idea of “sovereignty as responsibility,” they ascribe to it a moral purity it may not deserve. They ought not to ignore the complex legacy of historical constructions of sovereign responsibilities and pretend that such responsibilities are today being constructed for the first

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time. Rather, they should grapple with this legacy. There is a pressing need for them to grapple with the legacy of European imperialism in particular, given that the “responsibility to protect” concept is so frequently branded as a “neoimperialist” project by its critics. To begin with, advocates ought to acknowledge, as historians increasingly do, that some of the central ideas that today underpin the “responsibility to protect” concept—ideas of self-rule and accountability, individual rights and forcible intervention—were historically both framed by the experience of empire and also put to work to justify empire.11 It will be recalled that several of those nineteenth-century political theorists and international lawyers that were shown to be influential champions of individual and national freedoms in chapter 3 were also found to be vocal defenders of conquest and rule over non-Europeans in chapter 4. The fact that so many of those thinkers who passionately promoted the development of individual and collective rights within Europe in the past also enthusiastically supported the subjection of peoples beyond Europe should be recognized as deeply troubling. It has led some observers to suggest that there is something inherently and inevitably imperialist about any efforts to promote liberal principles of human equality and freedom at the international level.12 Advocates need not accept such extreme claims. After all, there is also a long history of individuals seeking to promote the rights of individuals and peoples internationally while firmly opposing the injustices of imperialism.13 Numerous thinkers such as Bartolome de Las Casas in the sixteenth century, Pufendorf in the seventeenth, and Burke in the eighteenth condemned European practices of imperial conquest and rule as violations of natural rights while accepting the permissibility of temporary and limited military action to protect natural rights and rescue oppressed peoples from tyranny.14 History does not support the claim that the endorsement of the international protection of populations is essentially or necessarily imperialist. Likewise, advocates have strong grounds for insisting that the “responsibility to protect,” while providing a justification for military intervention to protect the rights of populations, is not an inherently neoimperialist project as some critics suggest. It differs from European imperialism in several fundamental ways. First, it is not about the promotion of some concept of “civilization,” the “advancement” of “backward” peoples, the imposition of particular norms of good governance, or any other paternalist ideology aimed at “improving” populations. Rather, as agreed at the 2005 World Summit, it is expressly limited to the protection of populations from particularly shocking crimes that are clearly defined in international law: geno-



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cide, war crimes, ethnic cleansing, and crimes against humanity. Second, it does not justify conquest, the extinguishment of sovereignty, and the subjection of peoples to foreign rule. Rather, it legitimizes the provision of assistance, the application of diplomatic pressure and sanctions, and in only the most extreme cases the temporary resort to force to prevent the occurrence of these atrocity crimes. The people remain sovereign, and international action is justified in terms of defending and upholding their sovereign will. Third, the “responsibility to protect” is not a European or Western project imposed by the powerful upon the weak. Rather, it is a concept that has been actively championed by non-Europeans, particularly African states, unanimously endorsed by member states in the UN General Assembly, and willingly implemented not only by NATO states in Libya but also by African, Asian, and South American states in their own regions and in a range of coercive and noncoercive ways.15 The careful and consensual development of the concept has ensured that, while many emphasize the need for vigilance lest it be subject to illegitimate abuse by powerful, self-interested states, only a very small number of states such as Cuba, Venezuela, and Sudan suggest that it legitimizes neoimperialist practices.16 That being said, advocates of the “responsibility to protect” must still wrestle with the legacy of imperialism. As Antony Anghie has claimed, “Sovereignty is a flexible instrument that readily lends itself to the powerful imperatives of the civilizing mission.”17 The blindness of nineteenthcentury liberal thinkers to the abuses and injustices of European imperialism should give pause to anyone enthusiastically advocating the international enforcement of liberal principles today. Civilizational self-confidence and liberal narratives of progress continue to act as lures to the belief that the need to promote universal moral principles justifies, indeed demands, paternalistic and prejudiced treatment of “backward” peoples by the more “advanced” states. As different as the “responsibility to protect” is from nineteenth-century imperial constructions of the rules of sovereignty, advocates of the concept need to be wary of ways in which they might be tempted, perhaps without realizing, to embrace “civilizing” policies that again lead to the political and legal exclusion of “uncivilized” peoples. Advocates should also insist, however, that European imperialism is far from the only significant antecedent of the “responsibility to protect.” There is a lot more to the history of the construction of sovereign responsibilities than the lamentable example of European conquest and rule over nonEuropean peoples. Those who have thought about political authority and those who have wielded political authority have articulated and accepted a range of enforceable responsibilities for the protection of populations, including

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responsibilities for the protection of “innocents” from tyranny, the protection of religious and national minorities from persecution, and the protection of vulnerable peoples from the horrors of the slave trade. Those who wish to promote the “responsibility to protect” today ought to engage with this complex history of sovereign responsibilities lest critics continue to reduce the history to a simple tale that contrasts the benefits of indefeasible sovereignty with the evils of imperial exploitation. This book is not about providing clear answers to present-day ethical debates about sovereignty and the protection of populations. Rather it seeks to clarify the historical story so that these debates can be conducted on solid foundations. The starting point for arguing about the “responsibility to protect” concept must be to understand its history, and we are prevented from doing that if we blindly accept the conventional story of sovereignty. Both critics and advocates of the “responsibility to protect” offer an impaired contribution to present-day debate because they obscure what is actually a rich history of interaction between ideas of authority and responsibility from which much can be learned. By scrutinizing the history of sovereignty, we recognize that it has always entailed varied and evolving responsibilities. These responsibilities have been found at the heart of both the justifications for sovereign authority and the construction of its meaning and content. We might want to argue that some of these articulated responsibilities have been morally problematic and that others should be celebrated. At times, discourses of responsibility have doubtless legitimized terrible injustices, while at other times the fulfillment or enforcement of responsibilities has provided substantial benefit to populations. We are ill-served by failing to consider this rich and complex history and replacing it with a fictional story. Both critics and advocates of the “responsibility to protect” tend to draw on history in constructing their arguments. Yet the lessons of history can be adequately learned only if such history is rightly understood. I hope that this new story of sovereignty will make a contribution toward that end.

Clarifying the Significance of the “Responsibility to Protect” Finally, a more precise understanding of the history of sovereignty enables a clearer understanding of the real historical significance of recent developments in international consensus around the concept of the “responsibility to protect.” The idea that sovereignty entails a responsibility to protect populations from mass atrocities is not itself new. Neither is the idea that



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the fulfillment of this responsibility may be rightfully enforced by the society of states. Both of these ideas have historically been subject to varying degrees of contestation, yet both have been commonly articulated and frequently accepted since sovereignty first emerged in early modern Europe. Nevertheless, as I observed in chapter 6, the protection responsibilities of sovereign states had never before been so clearly endorsed by international society as they were at the UN World Summit in 2005, and the international enforcement of these responsibilities had rarely been so clearly authorized by international society as they were in the adoption of Resolution 1973 by the UN Security Council in 2011, allowing for the forceful protection of civilians in Libya. These two developments have deep historical roots, but they represent new landmarks in the history of the relationship between sovereignty and responsibility. What may ultimately be most significant about the emergence of the “responsibility to protect” concept, however, is not the notion of enforceable sovereign responsibilities but the notion that the society of states itself has a responsibility, as opposed to a discretionary right, to ensure the protection of populations. If the history of sovereignty that I have offered is correct, it would seem to demonstrate as false the allegation by some advocates of the “responsibility to protect” that a noninterventionist and irresponsible understanding of sovereignty has for centuries facilitated the perpetration of mass atrocities. For much of its history, sovereignty has not been understood to prohibit external interference for the protection of peoples from tyranny and oppression. The problem, it would seem, has not been the rules of sovereignty so much as the unwillingness and incapacity of the society of states to collectively respond to mass suffering. As recent debate on the “responsibility to protect” indicates, states today are increasingly coming to realize that the protection of populations may require not simply a particular (re)construction of the rules of sovereignty but a greater commitment by international society to take up its own burden of responsibility to consistently, impartially, and effectively encourage, enable, and, if necessary, enforce the fulfillment of the responsibilities upon which sovereignty has long been justified.

notes

All document numbers in these notes refer to UN documents unless otherwise indicated.

introduction 1. A/60/L.1 (September 15, 2005), paras. 138–39. 2. Kegley and Blanton 2010, 365. 3. Evans 2008a, 284. 4. See, for example, Chandler 2004, 65; Cunliffe 2007, 48. 5. These points are elaborated in chapters 2 through 5. 6. See, for example, Ashley 1988; Bartelson 1995; Bierksteker and Weber 1996b; Ruggie 1983; Walker 1993; Weber 1995. 7. See, for example, Barkin and Cronin 1994; Philpott 2001a; Reus-Smit 1999; Spruyt 1994; Thomson 1994. 8. Of particular importance are excellent studies by Barkin (1998) and Reus-Smit (2001, 2011) on the place of human rights in the historical construction of sovereignty. Their accounts of the evolving relationship between sovereignty and human rights mirror important parts of my own account of the historical development of the relationship between sovereignty and responsibility. 9. Wight 1977, ch. 6. Reus-Smit (2008, 413) similarly suggests that a hallmark of the constructivist approach to history is that it “explores social and political processes and practices ‘below’ the level of the ‘international system’ to understand its evolution.” 10. See, for example, Jones, Pascual, and Stedman 2009. 11. It should be noted that, while I devote a chapter to the European encounter with the non-European world and also pay close attention to conceptions of sovereignty advanced by non-Europeans after the process of decolonization, I do not consider early non-European traditions of sovereignty. To do so would certainly be a valuable project. The Ancient Chinese concept of the “mandate of heaven,” which was enjoyed by “benevolent” rulers but denied to rulers who acted tyrannically, for example, parallels early modern European conceptions of sovereignty in interesting ways (see Glanville 2010). However, I suggest that the conceptions of sovereignty that emerged in early modern

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Europe had far greater influence on the subsequent historical evolution of the relationship between sovereignty and responsibility.

chapter one 1. Oppenheim 1905, 103. 2. Fowler and Bunck 1996, 4. 3. Goldstein 2005, 74. 4. Kegley and Blanton 2010, 606–7. 5. Ibid., 365. 6. Forsythe 2006, 21, 25. An exceptional introductory text that offers some historically sensitive analyses of sovereignty is Edkins and Zehfuss 2009, especially the chapter by Elden. 7. Evans 2008b, 16. Evans outlines the “traditional” meaning of sovereignty in greater detail at 11–30. 8. Evans 2008a, 284. 9. Chopra and Weiss 1992; Weiss 2007, 24. 10. An exceptional work that does take the historical relationship between sovereignty and responsibility more seriously is Bellamy 2009, 8–34. 11. See, for example, Chandler 2004, 65; Cunliffe 2007, 48. 12. Chandler 2004, 65. An example of a critique of the “responsibility to protect” that is more sensitive to history, drawing parallels with constructions of responsibility by colonial powers, is Chomsky 2011. 13. Vincent 1974, 14; 1986, 113; Jackson 1999, 432; Buzan 2004, 143. 14. For many neorealists, sovereignty is essentially the ability of the state to make authoritative decisions. Kenneth Waltz (1979, 96), for example, plainly insists, “To say that a state is sovereign means that it decides for itself how it will cope with its internal and external problems.” In their critique of neorealism, some neoliberal theorists adopt a similar understanding of sovereignty and argue that increasing economic interdependence and political integration has eroded the ability of sovereigns to control outcomes. 15. Morgenthau and Thompson 1985, 329. Robert Gilpin (1981, 17) offers a similarly ahistorical understanding of the scope of sovereign authority applied to the question of human rights in his study of war and change: “The state is sovereign in that it must answer to no higher authority in the international sphere. It alone defines and protects the rights of individuals and groups.” 16. Krasner 2004, 88. See generally Krasner 1999 and 2010. 17. Krasner 2001, 17. 18. Krasner 1999, 20–25. The belief that sovereignty necessarily entails a right to nonintervention is so entrenched that even the international commission that developed the “responsibility to protect” concept in 2001 accepted that nonintervention was a “correlative norm” of sovereignty. ICISS 2001a, 12. 19. Philpott 2001a, 18. 20. Ibid. 21. Philpott 1996, 43. 22. Philpott 2001b. Another constructivist, Thomson (1995, 219), argues that the



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authority claims implicit in sovereignty are not given yet still defines sovereignty as the recognition that “the state has the exclusive authority to intervene coercively in activities within its territory.” 23. Kelsen 1944, 41. 24. Ibid., 38. See also Suganami 2007. 25. Koskenniemi 1991, 408. 26. Manning’s conception of sovereignty was later followed closely in James 1986. 27. Suganami 2001, 101–2. Suganami suggests that in Manning’s arguments we find an early example of constructivism in international relations. Linklater and Suganami 2006, 48. See also Aalberts 2010. 28. Bull 1984a, 11–12. 29. For some examples, see introduction, n. 6. 30. Ashley 1984, 272–73n101. 31. For some examples, see introduction, n. 7. 32. Walker 1993, 10. 33. Bartelson 1995, 13. See also Bierksteker and Weber 1996a, 2–3. 34. Reus-Smit 2001, 538. 35. Ibid., 526. 36. Sikkink 1993, 412. 37. Bierksteker and Weber 1996a, 18. 38. Wendt 1992, 413. 39. Krasner 1999, 20. 40. Krasner 2004, 88. 41. Krasner 1999, 51. 42. Ibid., 52. 43. Krasner 2001, 17. 44. Krasner 1993; 1999, 79–82. It is for this reason that, in more recent works, Krasner has changed his label to “Westphalian/Vattelian sovereignty.” 45. Suganami 2007, 512–13. 46. Reus-Smit 2001, 526. 47. Noteworthy exceptions that at least point in this direction are Barkin 1998; ReusSmit 2001; H. Thompson 2006. 48. Reus-Smit 2001, 520. 49. Philpott 2001a, 12. 50. This claim parallels with Wight’s (1977, 153) discussion of the principles of “international legitimacy,” which he suggests are the principles that prevail “within a majority of the states that form international society, as well as in the relations between them.” 51. Hart 1968, 211. For a range of taxonomies and examinations of the use of the term, see, in addition to Hart’s work, Cane 2002; Corlett 2001; Lucas 1993. 52. Erskine (2003, 1n1) similarly suggests that each of these terms—responsibility, duty, and obligation—can refer to “actions or forbearances that one is deemed bound to perform or observe.” To be sure, there is perhaps a sense in which “obligation” is a stronger term than “responsibility.” We may feel that an “obligation” is more binding and that failure to perform it attracts greater sanction than a “responsibility.” In legal analysis, the

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term “international obligation” tends to refer to those particular responsibilities of states that are established in international law and whose breach can attract relevant legal consequences. As a result, political actors may at times prefer one term over the other. Nevertheless, the terms are commonly employed interchangeably. 53. Some early modern scholars such as Hobbes (1996, xxx.1) used the term “office” in a similar sense, as in “The office of the sovereign . . . [is] the procuration of the safety of the people.” 54. It is worth noting that, in contrast to the way the term “responsibility” is typically understood in moral and legal philosophy, the present-day notion of the sovereign “responsibility to protect” is not conceived to be dependent on the capacity of the sovereign state to perform its responsibilities. A state is not thought to be excused for failing to prevent the occurrence of mass atrocities within its territory on the grounds that it did not have the resources or ability to undertake such prevention. 55. Lucas 1993, 5. Black’s Law Dictionary similarly defines “responsibility” as “the state of being answerable for an obligation” and defines “responsible” as “liable, legally accountable or answerable.” Quoted in Corlett 2001, 9. 56. Contrast this with Morgenthau and Thompson (1985, 331–32), for example, who acknowledge that “sovereignty is not freedom from legal restraint” yet attribute an expansive range of unconditional and ahistorical rights to states: “The individual nation has the right to give itself any constitution it pleases, to enact whatever laws it wishes regardless of their effects upon its own citizens, and to choose any system of administration. It is free to have whatever kind of military establishment it deems necessary for the purposes of its foreign policy—which, in turn, it is free to determine as it sees fit.” 57. Nationalities Decrees in Tunis and Morocco, quoted in Simma 2002, 157. 58. James 1986; Suganami 2007, 523–26. 59. For a persuasive argument that military intervention for humanitarian ends can actually strengthen the state system, see Wheeler 2000. 60. Suganami 2007, 524. “In the world of sovereign states,” Suganami continues, “there may be a strong tendency for the general principle of non-intervention to become accepted internationally, but its precise content is historically variable, depending on the material and ideational circumstances that prevail” (526). 61. Weber 1995. 62. Malmvig 2006. 63. I briefly discuss the idea that there may be emerging today not merely a right but a responsibility to intervene to uphold such sovereign responsibilities in chapter 6. 64. Thomson 1995, 219. 65. Werner and Wilde 2001, 302. 66. Ashley 1984, 273n101. 67. Thomson 1994, 17. 68. Jackson 2000, 323. 69. Manning 1975, 35. 70. For an introduction to this debate, see J. Crawford 2006, 4–28. 71. Ibid., 5. 72. Hurrell 2007, 50. 73. Evans and Sahnoun 2002, 101–2; ICISS 2001b, 136.



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74. Chopra and Weiss 1992, 106. 75. See also the useful recent study by Fabry (2010). 76. Jackson 1990. While Sørensen (1999, 600) suggests that the sovereignty of these states is “more formal than real,” Werner and Wilde (2001, 300) rightly maintain that a correct understanding of speech acts reveals the sovereignty of these states to be real “to the same extent that any other institutional fact is real.” 77. For broader discussion of the historical evolution of principles of international legitimacy, see Clark 2005; Reus-Smit 1999; Wight 1977, ch. 6. 78. See, for example, Bobbit 2002; Clark 2005; Ikenberry 2001; Osiander 1994. 79. See, for example, Osiander 1994, 14. 80. Hurd 2007, 203. 81. Finnemore 2003, 15. 82. For a related discussion, see Hurd 2007. 83. Carr 2001. For an excellent recent study that demonstrates the compatibility of Carr’s work with constructivist theorizing, see Barkin 2010. 84. Barkin 1998, 234. 85. For useful discussions, see Clark 2007; Nye 2002; Reus-Smit 2004. 86. Carr 2001, 217. 87. For a discussion of the important role of hypocrisy in the development of norms, see Lynch 2008. 88. It should be clear, then, that I have no particular stake in the “interests versus ideas” debate in this book. My objective is not to show that ideas or norms matter more than interests or power for explaining particular historical events. Rather, my concern is to demonstrate how these events reveal the ways in which the rules of sovereignty have varied and evolved over time. My criticism of Krasner, for example, is not that his explanations of the causes of historical events are incorrect but that he sees in many of these events breaches and compromises of a timeless and static sovereignty, whereas I argue we should find in them evidence of the construction and reconstruction of a socially and historically contingent sovereignty.

chapter two 1. P. Anderson 1974, 37–38. 2. Skinner 1978, 351. 3. Ullman 1949. 4. Bodin 1955, i.viii. See Skinner 1978, 351–52. 5. See the critiques of this image by Burns 1990; Henshall 1992; Mettam 1990. 6. Clark 2005, 51. 7. Burns 1990, 22. See, among numerous examples, Locke 1960, II.8, 23–24, 171–72. 8. The structure of the argument about absolute sovereignty in this section follows to a significant degree the trajectory of Burns 1990. 9. I use the male pronoun here in accordance with early modern practice. 10. Merriam 1900, 13. 11. Rowen 1980, 40–41. 12. Skinner 1978, 284–301.

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13. Quoted in ibid., 328, 32. 14. Ibid., 302–48. 15. Franklin 1973, chs. 1–2. 16. Skinner 1978, 284. 17. Bodin’s preface to the 1578 French edition. Bodin 1962, A71. 18. Bodin’s preface to the 1576 French edition. Ibid., A70. See also Skinner 1978, 285. 19. Bodin 1955, ii.iv–v. 20. Ibid., i.x. 21. “Gifts burdened with obligations and hedged with conditions are not true gifts. Similarly sovereign power given to a prince charged with conditions is neither properly sovereign, nor absolute, unless the conditions of appointment are only such as are inherent in the laws of God and of nature.” Ibid., i.viii. 22. Ibid., i.x. 23. Ibid., i.x, i.viii. 24. Ibid., i.viii. 25. Ibid. 26. Ibid. 27. Ibid. 28. Ibid. 29. Franklin 1973, 79–86; Skinner 1978, 295–96. 30. Burns 1990, 29–30; Franklin 1973, 70–79. 31. Burns 1990, 28. 32. Bodin 1955, i.vi–vii. 33. Thus, Kriegel (2002, 18) observes that, in the first systematic articulation of the concept, the “inherent contradictions of sovereignty” are displayed. 34. Merriam 1900, 16. 35. Bodin 1955, ii.iv–v. In his preface to the 1578 French edition, Bodin (1962, A72) summarized, “I denied that it was the function of a good man or of a good citizen to offer violence to his prince for any reason, however great a tyrant he might be; and contended that it was necessary to leave this punishment to God, and to other princes.” 36. Bodin 1955, ii.iv–v. Bodin also acknowledged that it is lawful to slay a tyrant who illegitimately usurps the throne. When radical Huguenots sought to exploit Bodin’s ideas about princes liberating oppressed peoples, Bodin published an Apology, “indignantly repudiating any suggestion that he might have intended to countenance a foreign invasion of France.” Skinner 1978, 286. 37. The classic study of divine-right theory is Figgis 1914. 38. Skinner 1978, 301. 39. Romans 13:1–2. 40. Quoted in Skinner 1978, 15. 41. Burns 1990, 30–31. 42. Speech of James I to his Lords and Commons at Whitehall, March 21, 1609/10, quoted in Jackson 2007, 57. 43. Skinner 1978, 301. 44. For two exceptions, see the brief discussion of the claims of Manwaring and Sibthorpe in Burgess 1992, 852–57.



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45. Ibid., 840. 46. Ibid., 847. 47. Quoted in Church 1969, 74. 48. Quoted in Henshall 1992, 132, 33. 49. Quoted in Rowen 1980, 84. 50. Quoted in Church 1969, 75. 51. Quoted in Rowen 1980, 84. 52. Keohane 1980, 251–56. 53. Quoted in ibid., 256. Kossman (1976, 11) puts it well. The idea of a divinely ordained social order, he suggests, was not about the rights of monarchs but a hierarchy whereby monarchs were supremely charged with the care of the people. “God’s purpose in investing absolute rulers with power was to establish a harmonious, hierarchical, political universe. . . . In this sense absolutism was ‘constitutional’ and conservative, the very opposite of un-Christian despotism.” 54. See Church 1969; Keohane 1980; D. Parker 1983; Rowen 1980. 55. A classic treatment of the practice of absolute monarchy in France is Mousnier 1979. See also Henshall 1992. 56. Quoted in Lossky 1968, 109. 57. Rowen 1961. 58. Quoted in Church 1969, 72. 59. Quoted in Lossky 1968, 110. 60. Keohane 1980, 250. Compare Kossman (1976, 8–9), who argues that, in early modern Europe, if monarchy “looked up to heaven it did so without humility.” 61. It could be argued that there is at least some notion of temporal accountability in his statement that “kings owe, so to say, a public account for all their actions to the entire world and to all the ages.” Quoted in Lossky 1968, 111. 62. Quoted in ibid., 111–12. 63. Quoted in ibid., 112. 64. Romans 13:4. 65. Quoted in Skinner 1978, 16. 66. Burns 1990, 36–37. 67. In 1581, Dutch revolutionaries declared their independence claiming that “the prince of a country is appointed by God to be the head of his subjects to protect and shield them from all iniquity, trouble and violence as a shepherd is called to protect his sheep. . . . It is clear therefore that if he acts differently and instead of protecting his subjects endeavors to oppress and molest them and to deprive them of their ancient liberty, privileges and customs and to command and use them like slaves, he must be regarded not as a prince but as a tyrant. And according to right and reason his subjects . . . should renounce him; in his stead another must be elected to be an overlord called to protect them.” In Kossman and Mellink 1974, 216–17. 68. Quoted in Skinner 1998, 1. 69. E. Morgan 1988, 130. 70. Hobbes 1996, xxi.5; Skinner 1998, 3. On the emergence of the idea of the “state,” see Skinner 1997. 71. Hobbes 1996, xvii.13–14.

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72. “A multitude of men, are made one person, when they are by one man, or one person, represented.” Ibid., xvi.13. 73. Ibid., xvii.13. 74. On the constituent power of the people in Hobbes’s theory of sovereignty, see Forsyth 1981. 75. Like Bodin, and in contrast to divine-right theorists, Hobbes emphasized that the powers of the sovereign representative are never personal powers, but they are owed to his holding “the office of the sovereign.” Hobbes 1996, xxx.1; Skinner 1997, 15–16. Sovereignty is vested not in individual men but in the “artificial man” that is the state, and it is to this that the people owe allegiance. 76. Hobbes 1996, xiv.7. 77. Hobbes, De Cive (1642), quoted in Skinner 1997, 16. 78. Hobbes 1996, xviii, xx.3. 79. Burns 1990, 39–40. 80. Hobbes 1996, xiv.3. 81. Ibid., xxx.1. 82. Ibid., xxi.21. For an argument that Hobbes can be read as allowing for a right of resistance, see Sreedhar 2010. 83. Hobbes 1996, “A review, and conclusion,” sec. 17. 84. Burns 1990, 41. 85. Aquinas 2002, iia.iiae.40. 86. Suárez 1944, xiii.iv.5. 87. Grotius 2006, 137. 88. Grotius 2005, ii.xx.40.1. 89. Ibid. 90. Ibid., ii.xx.40.4. 91. Ibid. See Muldoon 1979, ch. 1. 92. Grotius 2005, ii.xx.40.3. 93. Ibid., ii.xxv.8.2–4. 94. Ibid., ii.xxv.8.3. 95. Vitoria 1991a, question 3, article 5. 96. Vindiciae, Contra Tyrannos 1994, 173. 97. Bodin 1955, ii.iv–v. 98. Gentili 1933, i.xvi. 99. Suárez 1944, xiii.iv.4. 100. Ibid., xiii.v.3. 101. Ibid., xviii.iv.4. 102. Pufendorf 1729, viii.vi.14. 103. Ibid. 104. See, for example, Anghie 2004; Keene 2002; Tuck 1999. 105. Tuck 1999, 79. See also van Ittersum 2006. 106. Tuck 1999, 108. 107. Ibid., 163, 82; Vattel 1853, ii.iv.62. 108. Suárez 1944, xiii.iv.1–4. 109. Grotius 2005, ii.xxv.8.1.



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110. Vincent 1974, 22. 111. Grotius 2005, ii.xxii–xxiv. 112. Hobbes 1996, xxi.8. 113. For examination of the origins and course of the war, see G. Parker 1984; Sturdy 2002; Wedgwood 1938. 114. Brown 2002; Krasner 1999. Krasner uses this label despite acknowledging that the idea that sovereignty was established at Westphalia is a myth. 115. Zacher 1992; Lyons and Mastanduno 1995. 116. Shimko 2010, 8. 117. Mark Janis, quoted in Beaulac 2004, 68. 118. Such examples continue to proliferate despite revisionist scholarship convincingly demolishing the myth. See de Carvalho, Leira, and Hobson 2011. 119. Osiander 2001, 251. 120. Krasner 1993; Teschke 2003. See also Beaulac 2004; Croxton 1999; Nexon 2009, ch. 8. 121. It is worth acknowledging that, while the peace itself may not have established a right of nonintervention, the destruction caused by the Thirty Years’ War would often be appealed to by those defending the idea of nonintervention as it emerged over subsequent centuries. Memory of the horrors of the war and a desire to prevent the reoccurrence of such devastating conflict played some role in the gradual establishment of the right of nonintervention. 122. Clark 2005, 51. 123. Ibid., 53; G. Parker 1984, 178. 124. Clark 2005, 51. 125. Croxton 1999, 583–84. 126. Ibid., 591. 127. Clark 2005, 64. For revisionist interpretations, see Croxton 1999, 576; Osiander 2001, 267–68. 128. Clark 2005, 63. 129. Osiander 1994, 48. 130. Quoted in Clark 2005, 61. 131. Wight 1977, 152. See also Clark 2005, 57–61. 132. Reus-Smit 2011, 226. 133. Quoted in ibid. 134. Ibid., 227. 135. Krasner 1999, 78. 136. See chapter 5. 137. Treaty of Osnabruck 1969, article 28, pp. 228–29. 138. Ibid. 139. Krasner (1993, 244) concludes from the provisions for religious toleration that Westphalia clearly was not about sovereignty, since it did not concede “absolute” authority to the princes. I would suggest that it is more accurate to say that Westphalia did not concede arbitrary authority to the princes. These provisions for toleration in no way altered the question of whether the princely states were made sovereign in 1648. There is nothing inherent to the concept of sovereignty that requires that it entail unlimited rights

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and no responsibilities. There is no natural definition of sovereignty that was “compromised” at Westphalia. If anything, the rules of sovereignty were here being defined by an international society of states. What we find in Westphalia is not, as Krasner suggests, “the inherent tension between sovereign prerogatives and international pressures,” but “international pressures” leading to the construction of the rules of sovereignty, or at least state autonomy, such that it entailed clear responsibilities. 140. Trim 2011, 42–52. 141. Ibid., 53–64. 142. Treaty of Munster 1969, article 123, p. 354. 143. Croxton 1999, 575. 144. Simms 2011, 92. 145. Ibid., 93. 146. Kaiserliches Commissions-Decret, June 13, 1729, quoted in ibid., 95. Marquardt (2005) has counted twenty-six instances of sanctions being handed down against rulers deemed unfit to rule, for a range of reasons, between 1648 and the empire’s dissolution in 1806. See also Simms 2011, 93. 147. A. Thompson 2011, 80. 148. Simms 2011, 94. 149. A. Thompson 2006. 150. Simms 2011, 94. 151. Krasner 1999, 82. 152. Kaplan 2007, 336. 153. Ibid., 337. 154. See Jackson Preece 1998, ch. 4; Krasner 1999, 81. 155. It is for this reason that Krasner has in recent years relabeled his noninterventionist model of sovereignty “Westphalian/Vattelian sovereignty.” See, for example, Krasner 2010. 156. Wolff 1934, ii.255. 157. Ibid., Prolegomena, sec. 13. 158. Beaulac 2004, 138–41. 159. Vattel 1853, i.i.12. 160. Ibid., 1vi. 161. Ibid., 1viii. 162. Ibid., 1xiv. 163. Ibid., 1ix. 164. Ibid., i.iii.37. 165. Ibid., ii.iv.54. 166. Ibid., 1xvi. 167. Vincent 1974, 30–31. 168. Vattel 1853, iii.iii.39. 169. Vattel 1853, iii.iii.40. For examples of earlier reasoning, see Gentili 1933, i.vi; Vitoria 1991b, question 2, article 4. 170. Vattel, iii.xii.188. Rodney Bruce Hall (1999, 91) observes that an expansive right of sovereigns to wage war continued to be accepted by Europeans after Vattel outlined the principle of nonintervention: “War was deemed legitimate in order to obtain reparation



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for losses, for breach of a legal pact, for self-defense, for maintenance of a state or dynastic right, to prevent intended or threatened injury, to punish offense (however broadly defined), to anticipate the designs of another state, to prevent reoccurrence of attacks, to assist an ally under treaty obligation, to assist the uprising of the ‘unjustly oppressed’ in another state, to maintain the balance of power, or merely to uphold the ‘honor’ of the state.” 171. Vattel 1853, ii.i.7. 172. Ibid. 173. “But if the prince, by violating the fundamental laws, gives his subjects a legal right to resist him,—if tyranny, becoming insupportable, obliges the nation to rise in their own defence,—every foreign power has a right to succour an oppressed people who implore their assistance. . . . When a people, for good reasons take up arms against an oppressor, it is but an act of justice and generosity to assist brave men in the defence of their liberties. Whenever, therefore, matters are carried so far as to produce a civil war, foreign powers may assist that party which appears to them to have justice on its side.” Ibid., ii.iv.56. 174. “When a religion is persecuted in one country, foreign nations who profess it may intercede for their brethren: but this is all they can lawfully do, unless the persecution be carried to an intolerable excess: then, indeed, it becomes a case of manifest tyranny, in opposition to which all nations are allowed to assist an unhappy people.” Ibid., ii.iv.62. 175. Ibid., ii.iv.56.

chapter three 1. Franklin 1978. Franklin observes that the Levellers had implied the distinction between the constituent power of the people and the legislative power of their representatives in the 1640s, but he maintains that Leveller ideas had no direct effect on the subsequent development of the theory of popular sovereignty since the movement was dispersed by the end of the 1640s and did not bequeath a major treatise (125–26). 2. On the dating of the Two Treatises, see Laslett 1960, 58–79; Milton 1995. 3. Dunn 1984, 28. 4. Locke 1960, II.4. 5. Ibid., II.6. For earlier formulations of these rights by English writers, see Skinner 1998, 19–21. 6. Locke 1960, II.87. 7. Laslett 1960, 117. 8. Locke 1960, II.89. 9. Ibid., II.90. 10. Ibid., II.135. See also II.23. 11. Ibid., II.149. See also II.221–22. 12. Laslett 1960, 128. 13. Locke 1960, II.240. 14. Ibid., II.241–42. 15. Franklin 1978, ch. 4; E. Morgan 1988, ch. 5.

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16. Bailyn 1992, 30; see generally 22–54. 17. Ibid., 202. On the development of the argument for popular sovereignty in eighteenth-century America, see ibid., 198–229; E. Morgan 1988, ch. 10; Wood 1969, ch. 9. 18. For a compelling discussion of the evolution of individual-rights discourse in the eighteenth century, see Hunt 2007. 19. Patrick Henry, quoted in Bailyn 1992, 350. 20. “A bill of rights,” one claimed, “was used in England to limit the king’s prerogative; he could trample on the liberties of the people in every case which was not within the restraint of the bill of rights.” Quoted in Wood 1969, 539. 21. Quoted in E. Morgan 1988, 283. 22. Quoted in Wood 1969, 540. 23. Quoted in ibid. 24. James Wilson, quoted in E. Morgan 1988, 283. 25. Wood 1969, 542. 26. Quoted in ibid., 543. 27. McDonald 1965, 3. 28. Reus-Smit 1999, 129. Reus-Smit’s reading of Rousseau’s argument has directed some of my thought in this section. 29. Rousseau 1968, i.2, 4. 30. Ibid., i.6. 31. Ibid. 32. Ibid., ii.6. 33. Ibid., ii.4. 34. Ibid., i.4. 35. Ibid., i.8. 36. Ibid., i.1. 37. Ibid., ii.4. 38. Ibid., ii.3. 39. Ibid., ii.4. 40. Merriam 1900, 34. 41. Ibid., 34–35. 42. Rousseau 1968, i.7. 43. Ibid., i.8. 44. Ibid., iv.8. 45. Ibid. The subtle tension in the relationship between individual rights and the general will is perhaps most transparent in Rousseau’s insistence that “the sovereign has no need to give guarantees to the subjects, because it is impossible for a body to wish to hurt all of its members, and . . . it cannot hurt any particular member. The sovereign by the mere fact that it is, is always all that it ought to be” (i.7, emphasis added). 46. Keohane 1980, 445. 47. Swann 2000. 48. Ibid., 26–30. 49. Ibid., 30–31. 50. Quoted in Cronin 2003, 44. 51. Bukovansky 2002, 170–85.



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52. Keitner 2007, 24. 53. Ibid., chs. 1–2. 54. Bukovansky 2002, 187–90. 55. Quoted in O’Brien 1988, 33–34. 56. Jean-Pierre Gallais and Andre-Quentin Buee, quoted in Keitner 2000, 14. 57. Keitner 2007, 67–68. 58. Hont 1994, 205. 59. In the debates over the Declaration of the Rights of Man and Citizen in August 1789, Duc Mathieu de Montmorency urged his fellow deputies to “follow the example of the United States: they have set a great example in the new hemisphere; let us give one to the universe.” Quoted in Hunt 2007, 117. 60. Bukovansky 2002, 168. See also Schroeder 1994, 70–71. 61. Quoted in Blanning 1986, 75. But see Blanning’s caveats at 76–77. 62. Quoted in ibid. 63. Bukovansky 2002, 202. While the actual causes of the revolutionary wars cannot be reduced to a simple clash of ideologies between France and the rest of Europe, ideas about legitimate rule played an important role in both causing and sustaining conflict. See Blanning 1986; Bukovansky 2002, 192–202. 64. Quoted in O’Brien 1988, 32. 65. Quoted in ibid. 66. The Edict of Fraternity was revoked in April 1793, just a few months after it was announced, after disappointing military results and the failure of other peoples to free themselves through elections in Belgium and the Rhineland. In the second half of 1793, France renounced its previous “philanthropic” foreign policies and declared total war. Blanning 1991, 200. 67. Quoted in Blanning 1986, 79. 68. Bukovansky 2002, 224. 69. On the connections between popular sovereignty and nationalism, see Canovan 2005; Hont 1994; Yack 2001. 70. Wight 1977, 160. 71. Bukovansky (2002, 169, 85–86) observes that the revolutionary conceptions of political legitimacy promoted by France were so threatening to the international system precisely because germs of these ideas could already be found in other states. European political culture was transformed by Enlightenment ideas, which were clearly expressed in revolutionary France but also permeated throughout Europe. War merely accelerated this transformation. 72. Lingelbach 1900, 1. 73. Welsh 1996, 176. 74. Quoted in ibid., 178. 75. For an engaging discussion of the changing justifications that Burke offered for intervention, ranging from Vattelian arguments about the right to intervene in the case of civil conflict to arguments grounded in Roman domestic law whereby Europe was conceived as a single juridical society whose shared manners, law, and culture could be rightfully enforced, see Hampsher-Monk 2005. 76. Ibid., 82.

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77. Clark 2005, 92. Burke (1984, 313) also framed his argument for intervention against France as a rightful response to tyranny. In 1792, urging William Pitt’s foreign secretary to intervene in response to the horrors unleashed by the revolution, he argued: “I perceive, that much pains are taken by the Jacobins of England, to propagate a notion that one State has not a right to interfere according to its discretion, in the interior Affairs of another. This strange notion can only be supported by a confusion of ideas.” To interfere in response to dissentions within a neighboring state “requires great prudence and circumspection. . . . But an abstract principle of public law, forbidding such interference, is not supported by the reason of that law, nor by the Authorities on the Subject, nor by the practice of this Kingdom, nor by that of any civilized Nation in the World. . . . A more mischievous idea cannot exist than that any degree of wickedness, violence and oppression may prevail in a Country, that the most abominable, murderous and exterminatory Rebellions may rage in it, or the most atrocious and bloody tyrant may domineer, and that no neighbouring power can take cognizance of either, or afford succour to the miserable Sufferers.” 78. Quoted in Reus-Smit 1999, 137–38. 79. See Clark 2005, ch. 5; Osiander 1994, ch. 4; Reus-Smit 1999, 134–40. 80. Clark 2005, ch. 4; Reus-Smit 1999, 116–20. 81. Clark 2005, 96. 82. Finnemore 2003, 118. 83. Ibid., 118–19. 84. Quoted in Barkin and Cronin 1994, 118. 85. Quoted in Lingelbach 1900, 12. 86. Quoted in G. Simpson 2004, 253. 87. Article 119 of the French Constitution of 1793, quoted in Morgenthau 1967, 452. 88. Vincent 1974, 68–69. 89. “Lord Castlereagh’s Confidential State Paper of May 5th, 1820,” reprinted in Ward and Gooch 1923, 622–33. 90. Ibid., 626. 91. Ibid., 631. 92. Bew 2011, 117. 93. Ward and Gooch 1923, 631. 94. Ibid., 626. 95. Ibid., 627. 96. Ibid., 629. 97. Ibid., 632. 98. Hinsley 1963, 211. 99. Vincent 1974, 70–102. 100. See Palmerston’s explanation to William IV for the actions that cabinet intended to take in response to Austrian repression of liberalism in Germany in 1832, in ibid., 91. Palmerston did not always act faithfully according to these precepts, and he sometimes cynically employed the principle of nonintervention to justify counterinterventionist threats against states that might act to suppress liberal movements (such as the Holy Alliance in Portugal in the 1830s and Metternich’s Austria with respect to Italian independence movements in 1848). See ibid., 90–102.



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101. Quoted in Trachtenberg 1993, 22. 102. Vincent 1974, 71. 103. Mill (1984, 121) insisted that intervention in support of a government “to enforce obedience from its own citizens” was never permissible. A government that needs such support, he declared, “ought not to exist; and the assistance given to it by foreigners is hardly ever anything but the sympathy of one despotism with another.” 104. Ibid., 122. Mill argued that interventions of this sort can “seldom . . . I will not go so far as to say never—be either judicious or right” (123). 105. Ibid. Contrast Mill’s claims with the words of Palmerston in one of his less noninterventionist moments: “If any nation should be found not fit for constitutional government, the best way to fit such a nation for it would be to give it to them.” Quoted in Vincent 1974, 95. 106. See chapter 2. 107. However, like other commentators in this period that are discussed below, Mill (1984, 123) permitted a number of exceptions to the principle of nonintervention, including intervention to end a protracted civil war, in support of a people struggling for liberation from a “foreign yoke,” or in an instance of “native tyranny upheld by foreign arms.” 108. The following discussion draws from the excellent analysis in Vincent 1974, 31–44. 109. Von Martens 1795, 68, 69. 110. Ibid., 70. 111. Phillimore 1854, 314. 112. Woolsey 1874, 50, 57. 113. Ibid., 57, 37. 114. Lawrence 1895, 111–12. 115. Ibid., 135. 116. W. Hall 1924, 338–39. 117. Wheaton (1866) 1936, 79. 118. Ibid., 100. 119. W. Hall 1924, 337–50; Kent 1873, 21–26; Lawrence 1895, 111–35; Phillimore 1854, 314–46; von Martens 1795, 69–70; Wheaton (1866) 1936, 75–110; Woolsey 1874, 57–74. 120. Mill 1985, 346. In his essay on nonintervention, Mill (1984, 111) similarly allowed for intervention “to procure the abandonment of some national crime and scandal to humanity, such as the slave-trade.” 121. In 1920, Lassa Oppenheim (1920, 34) described the Ottoman Empire’s position in the family of nations as “anomalous because her civilization fell short of that of the Western states.” This idea is discussed further in chapter 4. 122. Onuf 2004. On interventions in the Ottoman Empire, see Bass 2008; Rodogno 2011. For a brief discussion of some noncoercive efforts undertaken by states to protect civilians from oppression within European international society during this period, see Bass 2008, 349. 123. Phillimore 1854, 320, 337–46. 124. Lawrence 1895, 120. 125. W. Hall 1924, 343–44. For further examples of skepticism, see Chesterman 2001, 38–39; Fonteyne 1974, 215–18.

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126. For early modern arguments, see chapter 2. 127. Wheaton (1866) 1936, 95. 128. Woolsey 1874, 35. 129. Arntz (1876), Fiore (1885), and de Lapradelle (1900), quoted in Fonteyne 1974, 220–21. In 1910, almost a century before the 2001 International Commission on Intervention and State Sovereignty would speak of the legitimacy of intervention in instances where a sovereign state is “unwilling or unable” to protect its citizens, Antoine Rougier defended intervention for the protection of populations and similarly insisted: “The fault [of the] government can consist either of a positive action or of an abstention.” Quoted in ibid., 230. 130. Quoted in ibid., 220. For numerous other examples, see Chesterman 2001, 36–38; Fonteyne 1974, 221–26. 131. Fonteyne 1974, 223. For a slightly more cautious assessment, see Chesterman 2001, 35–42. 132. Stowell 1921, 51–52. 133. Ibid., 313–15. 134. Ibid., 316. For further analysis, see Glanville 2011. 135. See, for example, Woolsey 1874, 37. 136. Quoted in Korman 1996, 80. 137. Brownlie 2008, 729. 138. Chesterman 2001, 8. 139. Wight 1978, 85. 140. Quoted in Hunt 2007, 177. 141. Quoted in Brown, Nardin, and Rengger 2002, 463. 142. Mill 1996, 41. 143. Ibid., 41–42. 144. Hunt 2007, 182. 145. Ibid., 183–84; Woolf 1996, 13. 146. Hobsbawm 1990, 106. 147. Ibid., 102. 148. Quoted in Tamir 1993, 62. 149. Kenneth Dyson, quoted in Camilleri and Falk 1992, 17. 150. For a discussion of these ideas, see Merriam 1900, chs. 6–7. 151. See, for example, Treitschke (1897) 1916. Stirk (2005) insists, however, that German thought in this period should not be reduced to the extreme beliefs of Treitschke. Contemporaries of Treitschke such as Georg Jellinek, Heinrich Tripel, and Max Huber argued that sovereigns were rightly constrained by international law and the rules of international society. 152. Treitschke (1897) 1916, 3. 153. Cobban 1945, 6. 154. Woolf 1996, 24. 155. Musgrave 1997, 20. 156. Ibid., 21–22. 157. Cronin 2003, 66. The British Foreign Office had declared in 1916 that His Majesty’s government desired a peace that would “give full scope to national aspirations



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as far as practicable. The principle of nationality should . . . be one of the governing factors in the consideration of territorial arrangements after the war.” However, even this modest declaration was qualified on the grounds that “we are limited in the first place by the pledges already given to our Allies which may, as for instance in the case of Italy, be difficult to reconcile with the claims of nationalities.” Quoted in Musgrave 1997, 16. 158. Wilson and Lloyd George both quoted in Cronin 2003, 69. 159. Quoted in Musgrave 1997, 23. 160. Pomerance 1976, 17. 161. Ibid. 162. Ibid. 163. Kedourie 1993, 125–29. 164. Musgrave 1997, 23. 165. Quoted in ibid., 24. 166. Quoted in Cronin 2003, 74. 167. Osiander 1994, 255, 318. 168. Kissinger 1957, 145. See also Clark 2005, 116. 169. Clark 2005, 116–17; Musgrave 1997, 27. 170. Quoted in Musgrave 1997, 27n52. Wilson’s secretary of state, Robert Lansing, penned a powerful critique of the principle of national self-determination in his diary during the peace conference: “The more I think about the President’s declaration as to the right of ‘self-determination’ the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Congress, and create trouble in many lands. . . . The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle into force. What a calamity that the phrase was ever uttered! What misery it will cause!” Quoted in Pomerance 1976, 10. 171. Musgrave 1997, 26–27. 172. Clark 2005, 117. 173. Cronin 2003, 74–75. 174. Wight 1978, 85. Clark’s (2005, 118) conclusion is much more cautious: “National self-determination could be regarded as a legitimating principle within international society only in so far as it was not itself disruptive of the order on which that international society rested.” 175. Barkin 1998, 241. In 1945, Cobban (1945, 65) similarly observed, “It has gradually become apparent that two different conceptions of liberty are implied in the national and the democratic ideals, and that the theory of self-determination failed to allow for their possible opposition. Liberty for the nationalist meant national liberty. The unity and independence of the nation, not the effectiveness of representative institutions, was, from this point of view, the prime test.” 176. Quoted in Jones 1951, 220. 177. Ibid., 222. 178. Quoted in ibid., 223. 179. See Clark 2007, ch. 4; Shimazu 1998.

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180. Miller 1928, 2:389. 181. Ibid. 182. Ibid., 1:464. See also 1:461–66 and 2:387–92. 183. Ibid., 2:727. 184. Chesterman 2001, 43. 185. Korman 1996, 191–92. 186. See, for example, Simma 2002, 116. The pact is also known as the General Treaty for the Renunciation of War, or the Pact of Paris. 187. In the second article, the parties “agree that the settlement or solution of all disputes or conflicts, of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.” Quoted in Korman 1996, 192. 188. Simma 2002, 116. 189. Ibid. See, generally, Korman 1996, 192–99. 190. Kissinger 1994, 280. 191. Cronin (2003, ch. 3) and Jackson Preece (1998, ch. 5) both assert that the demands of international stability constituted the primary factor motivating the great powers to establish the minority-rights regime. 192. Woolf 1996, 25. For some states, the proportion was even higher. For example, national minorities made up almost 35 percent of the population of Czechoslovakia and 30 percent of Poland. Cobban 1945, 86. 193. The Austrian government, for example, declared in 1929, “Minority rights, as such, are simply part of and not inconsistent with the so-called right of self-determination of peoples; they constitute a form of compensation offered to the minority by reason of the fact that the latter could not or has not been granted the right of self-determination.” Quoted in Musgrave 1997, 40. 194. On the evolution of minority rights guarantees, see Jackson Preece 1998. 195. Quoted in ibid., 65. 196. Krasner 1999, 84–90. 197. Quoted in Cronin 2003, 79. 198. Musgrave 1997, 40. 199. Ibid., 41. 200. Quoted in Macartney 1934, 238. 201. Quoted in ibid. 202. Quoted in Cronin 2003, 82. 203. Ibid. 204. H. V. W. Temperley, quoted in Clark 2005, 119. 205. Rosting 1923, 656. 206. Wight 1977, 171–72. 207. Jackson Preece 1998, 94. 208. Cobban 1945, 67. 209. Quoted in Willis 1982, 74. 210. Quoted in ibid. 211. Lansing 1921, 6–7. 212. Ibid., 20–21. He maintained: “The exercise of sovereignty in a state does not



notes to pages 98–106

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involve reasonableness, justice, or morality, but is simply the application or the menace of brute force. Regard for equitable, and ethical ideas may, and in modern states usually does, limit sovereign acts, but the acceptance of such ideas as rules of action is discretionary and not actually compulsive” (7). 213. Ibid., 74–75. Lansing’s notion of the “sovereign will of mankind” is not dissimilar to UN Secretary-General Boutros Boutros-Ghali’s idea of the “universal sovereignty that resides in all humanity,” which he contrasted with state sovereignty in order to justify the increased international enforcement of human rights in the early 1990s. See chapter 6 and Boutros-Ghali 1992–93, 99.

chapter four 1. For a particularly bold argument along these lines, see Alexandrowicz 1967. For more cautious assessments, see Keene 2002; Pitts 2012; Wight 1977, ch. 4. 2. Grotius 2005, ii.xx.44.4 and i.v.2.2. 3. Ibid., ii.xv.8–11. 4. Vattel 1853, ii.i.12 and ii.i.15. 5. Ibid., ii.i.16. 6. Wolff 1934, Prolegomena, sec. 20. 7. See also Pagden 1995; Tuck 1999. 8. Muthu 2003; Pitts 2005. 9. Pitts 2005, ch. 3. 10. Ibid., ch. 1. For an examination of the development of the idea of “civilization,” see Bowden 2009. 11. Mill (1977a, 120–21) went on to claim that these elements of civilization “exist in Modern Europe, and especially in Great Britain, in a more eminent degree and in a state of more rapid progression than at any other place or time.” 12. Pitts 2005, 241. See also Salter 2002. 13. Mill 1984, 118. 14. Ibid., 118–19. 15. Ibid., 119. 16. W. Hall 1884, 40. 17. Pitts 2012, 118. 18. See Pitts 2005, 21. 19. For a discussion of the relationship between the Ottoman Empire and European international society, see Gong 1984, 106–19; Naff 1984; Rodogno 2011, ch. 2. 20. Gong 1984, 31–32; Rodogno 2011, 45–47. 21. Gong 1984, 114. 22. Lorimer 1883, 102. 23. Oppenheim 1920, 34. In 1894, John Westlake (1894, 103) similarly wrote of “the anomalous position of that empire, included on account of its geographical situation in the political system of Europe, but belonging in other respects rather to the second group of contrasted populations [including Persia, China, and Japan]. She may benefit by European international law so far as it can be extended to her without ignoring plain facts, but her admission to that benefit cannot react on the statement of the law, which is what it is

246

notes to pages 106–9

because it is the law of European peoples.” Indicative of the Ottoman Empire’s anomalous position was that, despite its protests, the empire was ranked among second-class powers at the Second Hague Conference in 1907. Gong 1984, 115. 24. Gong 1984, 119. 25. For two recent detailed studies, see Bass 2008; Rodogno 2011. 26. Finnemore (2003, 54, 66–67) argues that Europeans had a “sharply circumscribed” conception of who was “human” and, therefore, who was deserving of international intervention when sovereigns failed in their duty to protect them. A lack of identification with victims precluded Europeans from considering intervention in response to massacres against non-Christians. Bass (2008, 347–50), on the other hand, maintains that nineteenthcentury humanitarianism was about more than rescuing fellow Christians, and he offers some examples of Christians seeking to rescue non-Christians as well as failing to rescue Christians in this period. 27. For examination of international efforts to protect Jews in eastern Europe in this period, see Fink 2004. For analysis of nineteenth-century European interventions, albeit diplomatic rather than military, in support of persecuted Jews in the Middle East, North Africa, and the Balkans, see Green 2011. 28. Rodogno 2011, 33. 29. Chesterman 2001, 29. 30. For an argument that emphasizes the strategic and security concerns of the intervening powers, see Bew 2011. 31. See, for example, Bass 2008; Chesterman 2001; Finnemore 2003; Rodogno 2011. 32. Quoted in Chesterman 2001, 32. 33. Stowell 1921, 66. 34. Finnemore 2003, 63. 35. Bass 2008, 360. 36. Some commentators suggested that the right to intervene on humanitarian grounds was restricted to relations between “civilized” and “uncivilized” peoples. In 1883, for example, Frederic de Martens argued: “Vis-à-vis non civilized nations . . . intervention by the civilized powers is in principle legitimate, when the Christian population of those countries is exposed to persecutions or massacres. In those circumstances, it is justified by common religious interests and humanitarian considerations. . . . These motives are not applicable to the relations between civilized powers.” Quoted in Fonteyne 1974, 219. For more examples, see 219n52. However, at least one scholar observed that, for the very fact that it was committing atrocities against its population, no such state could claim to be civilized: “In addition to the great difficulty of tracing with any degree of accuracy the line of demarcation between civilized states and those which are not, this restriction would seem to be useless, for why should we tie our hands in advance, if perchance atrocities should come to be committed by the sovereign of the government of a state which would be called civilized? And beside might it not be said that by this fact alone the state in question approximated very closely the condition of barbarous states, and that it would consequently lose all title to respect for its independence?” Michel Kebedgy, quoted in Stowell 1921, 65n14. 37. On the development of this doctrine, see Vincent 1974, 103–40. 38. Quoted in Mead 2003, 193. Mead contrasts this “Jeffersonian” tradition of Ameri-



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can foreign policy with a “Wilsonian” tradition that, since well before Wilson, more readily permitted intervention in the affairs of sovereign states in defense of liberty and individual rights. 39. On the connections between Adams’s ideals and the Monroe Doctrine, see Bass 2008, 88–97. 40. See Holmes 2006; Zimmermann 2002. 41. Quoted in Holmes 2006, 109. 42. Quoted in ibid., 86. In 1900, Alfred Thayer Mahan, an influential American naval strategist, similarly pointed to the atrocities committed against Cubans and Armenians and concluded: “Under some circumstances, an obligation to repress evil external to its borders rests upon a nation, as surely as responsibility for the slums rests upon the rich quarters of a city.” Quoted in Bass 2008, 318–19. 43. Chesterman 2001, 34. 44. FRUS 1898, 757. 45. Ibid. 46. Ibid., 757–58. 47. Quoted in Chesterman 2001, 35. 48. Walzer 2000, 104. 49. Quoted in Fonteyne 1974, 221. 50. Quoted in Zimmermann 2002, 440–41. Roosevelt advocated using police power to police the international realm, just as governments use police power to promote order and welfare domestically. “Wars with barbarous or semi-barbarous peoples,” he claimed, are “merely a most regrettable but necessary international police duty which must be performed for the sake of the welfare of mankind.” Quoted in Holmes 2006, 69. 51. Root 1917, 272. 52. Ibid., 270. Root (1916b, 115–16) repeated this theme in an address to the American Society of International Law in 1914. Defending US interference in the affairs of weaker states in order to ensure the observance of treaty obligations and of the rules of international law, including “due protection for the lives and property of its [the United States’] citizens within the territory of every other American state,” he declared: “the responsibilities of sovereignty attach to the weak as well as to the strong, and a claim to exemption from those responsibilities would imply not equality but inferiority.” 53. Root 1916a, 48–49. 54. Quoted in Willis 1982, 74. 55. For a discussion of this process, see Anghie 2004, ch. 2. 56. Lawrence 1895, 59. 57. Gong 1984, 24. 58. FRUS 1902, 514. 59. Gong 1984, 238. 60. Quoted in Fabry 2010, 61–62. 61. Quoted in J. Crawford 2006, 382. 62. Gong (1984, 31–32) argues that while the Ottoman Empire gained provisional admittance into European international society in 1856, it was not admitted according to an explicit standard of “civilization.” 63. See ibid., ch. 6; Suganami 1984.

248

notes to pages 114–19

64. Suzuki 2005, 139. 65. Quoted in Gong 1984, 29. 66. Oppenheim 1905, 33. 67. Ibid., 31. 68. Ibid. 69. Gong 1984, 21. 70. Ibid. 71. Ibid. 72. Gong (ibid., 91–93) himself made some observations along these lines. Recent contributions to this literature include Bowden 2009; Donnelly 1998; Fidler 2001; Wilde 2008. 73. A classic study that makes the claim that abolition was economically motivated is E. Williams 1944. But one recent study concludes: “Changes in the world economy in the nineteenth century certainly created the conditions that made the abolition of slavery more feasible. But the best historical evidence suggests that slavery did not die an accidental death of abandonment in the face of competition from industrial capitalism. Slavery was eradicated, intentionally, by people who had come to believe it was morally wrong.” Martinez 2012, 13. For an influential constructivist argument along these lines, see Nadelmann 1990. 74. Krasner 1999, 107. 75. Rousseau 1968, i.4. See also N. Crawford 2002, 173. 76. Paine 2001, 60–61. 77. Quoted in N. Crawford 2002, 174. 78. Roger Anstey, quoted in Clark 2007, 57. 79. Ibid., 40. The United States passed a similar bill that same year. Denmark had already done so in 1792. 80. Martinez 2012, ch. 2. 81. Nicolson (1946, 210) tells us that the British representative first thought the abolitionists to be “little more than left-wing agitators or sentimental idealists.” Yet the more he studied the subject, the more convinced he became “that the trade was in truth a terrible evil, and that it was the duty of Great Britain to use her moral influence, her wealth and her maritime power to secure its general abolition.” 82. “Declaration of the Powers, on the Abolition of the Slave Trade (1815)” 1816. 83. Paul Kielstra, quoted in Clark 2007, 57. 84. See Martinez 2012, ch. 4. 85. Ibid., 12–13. Suppression of the trade was accompanied by the emancipation of slaves. In 1833, Britain freed slaves in its colonies as did France in 1848 and the United States within its own territory in 1865. 86. “General Act of the Conference of Berlin (1885)” 2003, article IX. 87. “General Act between the United States of America and Other Powers for the Repression of the African Slave Trade and the Restriction of the Importation into, and Sale in, a Certain Defined Zone of the African Continent, of Firearms, Ammunition and Spirituous Liquors (1890)” 1909, 29. 88. Ibid. 89. Pitts 2005, 16–17.



notes to pages 119–25

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90. Quoted in Bain 2003, 18. 91. Rousseau 1968, ii.8. See also Bain 2003, 18. 92. See, for example, Mill 1977a, 1984. 93. See Bain 2003; N. Crawford 2002; Louis 1977. 94. See Hanke 1974; Pagden 1995. 95. Pagden 1995, 100. 96. Vitoria 1991a, question 3, article 8. 97. E. Burke 1839, 296. 98. Pitts 2005, 2. 99. Mill 1984, 118–19. 100. Mill 1977b, 224. 101. Ibid. 102. Lorimer 1883, 227–28. 103. See chapter 3. 104. Bain 2003, 20. 105. E. Burke 1839, 296. 106. The formulation of “internationalization” followed by “institutionalization” is borrowed from Bain 2003. 107. Wright 1930, 8–9. 108. This “dual mandate” would be given its fullest expression in Lugard (1922) 1965. 109. Quoted in Bain 2003, 63. 110. Quoted in N. Crawford 2002, 208–9. 111. “General Act of the Conference of Berlin (1885)” 2003. The US delegate to the Berlin Conference, Mr. Kasson, unsuccessfully attempted to insert a provision in the act declaring the aim of “the voluntary consent of the natives whose country is taken possession of in all cases where they may not have provoked the aggression.” Quoted in N. Crawford 2002, 209. 112. See, for example, N. Crawford 2002, 201–48. 113. Bain 2003, 67–68. 114. The story is told in Ewans 2002; Hochschild 1998. Another example is the horrific story of German brutality in South-West Africa. See N. Crawford 2002, 221–36. 115. Quoted in Bain 2003, 68–69. 116. Koskenniemi 2002, 158. 117. Quoted in Bain 2003, 70–71. 118. This often overlooked aspect of the story is neatly told in ibid., 71–74. 119. Ibid., 72. 120. Quoted in ibid., 73. 121. Quoted in ibid., 74. 122. Of course, this was by no means the first time that colonizing powers had committed atrocities despite professing to be undertaking a civilizing mission. See, for example, the discussion of Spanish treatment of American natives in the sixteenth century in Las Casas 2004. 123. Quoted in N. Crawford 2002, 249. 124. Quoted in ibid., 256. 125. Lloyd George 1935–37, 71.

250

notes to pages 125–34

126. Bain 2003, 90–91. 127. Smuts 1928, 26. For Smuts’s reasons for omitting German colonies from his proposed mandates system, see ibid., 28. 128. Ibid., 29. 129. Ibid., 30. 130. Ibid., 31. 131. Ibid., 32. 132. For a more detailed discussion of the drafting of the provisions for the mandates system in the Covenant of the League of Nations, see Wright 1930, 24–43. 133. Miller 1928, 2:737. 134. Quoted in Anghie 2004, 122. 135. N. Crawford 2002, 272. 136. See, for example, Anghie 2004, ch. 3. 137. A similar argument can be found in Keene 2002, 126–44. 138. Quoted in Wright 1930, 23. 139. This is not to suggest that the mandatory powers enjoyed sovereignty over the people within their trust. Indeed the question of who was sovereign in the mandates system was never fully resolved. Ibid., 319–39. Further, while a mandatory state could conceivably have its mandate revoked and handed to another state, there was no suggestion that the sovereignty of these mandatory powers over their own metropoles should be in any way conditional on the fulfillment of the obligations of trusteeship. 140. Duncan H. Hall, quoted in Anghie 2004, 121. 141. See, for example, N. Crawford 2002, ch. 6. 142. Oppenheim 1937, 46. 143. Lauterpacht 1947b, 31. 144. Quoted in Fitzmaurice 2012, 134. 145. Gong 1984, 87. 146. Wight 1992, 61. See also Salter 2002, ch. 5. 147. Quoted in Duara 2004, 11. 148. Anghie (2004, 6) similarly claims that “sovereignty was improvised out of the colonial encounter.” 149. For a discussion of such blindness in the thinking of Mill, for example, see Pitts 2005, ch. 5. 150. See chapter 3. 151. Keene 2002.

chapter five 1. For a discussion of the “traditional” meaning of sovereignty, see the introduction and chapter 1. 2. “The Four Freedoms,” in Beschloss 2003, 171. 3. Quoted in Borgwardt 2005, 304. 4. Ibid., 29. 5. See, for example, C. Anderson 2003, 17; Mandela 1994, 83–84. 6. Lauren 2003, 139.



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7. The term “United Nations” merely referred to the coalition against the Axis states rather than a permanent organization. 8. Quoted in A. Simpson 2001, 183. 9. Borgwardt 2005, 56. 10. See Lauren 2003, 147–54; A. Simpson 2001, 161–207. 11. Allied leaders made many public statements affirming their commitment to principles of human rights found in the Atlantic Charter and the Declaration of the United Nations. However, when pressed, they often emphasized that these documents only articulated shared goals rather than legally binding agreements. Churchill, for example, described the Atlantic Charter as “no more than a simple, rough and ready, war-time statement of a goal” toward which the supporting governments “mean to make their way.” The tension between international human rights and the right of states to non­ interference was understood not only by leaders but by citizens. One wartime study concluded: “There are many voters to whom national sovereignty is a very dear thing. They will surrender it [if at all] . . . only after a long argument and even then with reluctance.” Quoted in Lauren 2003, 155–56. 12. Quoted in Sellars 2002, xii. 13. Quoted in Clark 2007, 134. 14. Quoted in Lauren 2003, 159. 15. Sellars 2002, x. 16. A. Simpson 2001, 220. In 1941, legal scholar Percy Corbett foresaw how the inflated expectations that Allied rhetoric was creating would not be easily ignored once the war had ended. While “people versed in the ways of diplomacy may heavily discount such expressions of generous intent, by some sections of the public . . . they are likely to be regarded as promises. On them may be built expectations which it will be politically inexpedient to disappoint when the time for settlement arrives.” Quoted in Borgwardt 2005, 285. 17. FRUS 1966, 791. 18. Ibid., 789. 19. Ibid., 829n23. Emphasis added. 20. Cadogan reported this to London. Quoted in A. Simpson 2001, 246. 21. FRUS 1966, 825. 22. Ibid., 829. 23. Ibid., 898. 24. Articles 8A(7) and 2(4) in Goodrich and Hambro 1949, 573, 78. 25. Quoted in Lauren 2003, 161. 26. Ibid. 27. Ibid., 163–64. 28. Ibid., 167. 29. Borgwardt 2005, 172. 30. Quoted in Lauren 2003, 170. 31. See Ibid., 166–77. For an index to the numerous “Amendments, Comments and Proposals Concerning the Dumbarton Oaks Proposals” made by states on the topic of human rights, see United Nations Information Organizations 1945–46, 3:637ff. 32. Quoted in United Nations Information Organizations 1945–46,1:425. 33. Quoted in ibid., 1:113–15.

252

notes to pages 139–43

34. Memorandum by the Secretary of State to President Truman dated April 19. FRUS 1967, 353–54. 35. The story of a famous meeting between the consultants and Stettinius on May 2 is often repeated, but it seems that the US delegation was already convinced on a number of the points that the consultants raised. Indeed a number of the demands made by the consultants at this meeting were already included in US draft amendments. Ibid., 532. The earlier amendments can be found at 353–54. For recent examinations of the role of the consultants, see Clark 2007, 141–50; Sellars 2002, 1–5. 36. FRUS 1967, 546–47, 51–52, 59–60; United Nations Information Organizations 1945–46, 3:622–28, 6:65. 37. United Nations Information Organizations 1945–46, 3:641. 38. Quoted in ibid., 1:425. 39. The US State Department had discussed this possibility before Dumbarton Oaks. It was eventually decided at San Francisco to leave the drafting of a human-rights charter to the newly created General Assembly. Simma 2002, 35. 40. The draft proposal can be found at United Nations Information Organizations 1945–46, 3:474–77. 41. See preamble, articles 1(3), 13, 55, 62, 68, and 76. 42. Quoted in Borgwardt 2005, 29. 43. Clark 2005, 137. 44. See chapter 3. 45. See Barkin and Cronin 1994, 122–25; Emerson 1971, 463; Jackson Preece 1998, ch. 6. For an example of an argument made during the war to substitute individual rights for the rights of national minorities, see Waldman 1944, 14, 48–49. 46. Beschloss 2003, 171. 47. Quoted in Borgwardt 2005, 304. 48. US Department of State 1945, 179. 49. FRUS 1967, 551. See also the US delegation’s brief discussion on the proposed amendment (546). 50. United Nations Information Organizations 1945–46, 6:300. 51. Cassese 1995, 39. 52. Quoted in ibid., 39–40. 53. Ibid., 40. 54. Ibid; United Nations Information Organizations 1945–46, 6:296. 55. Cassese (1995, 40–41) cautions that “self-government” here should not be taken to mean representative government. 56. See chapter 3. 57. As expressed in article 1(1). 58. FRUS 1967, 726. See also Goodrich and Hambro 1949, 103. 59. FRUS 1967, 566. 60. Ibid., 583. 61. For records of discussions within the US delegation and among the Four Powers, see ibid., 355, 544–45, 565–66, 580–84, 599. See also Rajan 1958, 46–48; US Department of State 1945, 43–45. A number of scholars claim that the US delegation was particularly concerned that the US Senate would oppose the charter if the domestic-jurisdiction



notes to pages 143–47

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exception was not strengthened. While this may be a plausible claim, little evidence is offered to support it. See, for example, C. Anderson 2003, 44–45; Borgwardt 2005, 191–92; Lauren 2003, 187. 62. United Nations Information Organizations 1945–46, 3:386. 63. See Rajan 1958, 48–62. 64. A. Simpson 2001, 265. 65. United Nations Information Organizations 1945–46, 6:438. 66. The US delegation reported to President Truman that the chapter VII exception “was more apparent than real because action under that Chapter of the Charter can be taken only after the Security Council has determined the existence of a threat to the peace, a breach of the peace, or an act of aggression. . . . If a situation arises on which action under Chapter VII of the Charter is authorized, it would by that very fact be hard to conceive how the matter could any longer be considered ‘essentially domestic.’ ” US Department of State 1945, 43–44. 67. This is drawn from two slightly different versions of Dulles’s speech, which can be found in Rajan 1958, 56–58; United Nations Information Organizations 1945–46, 6:507–8. See also New York Times, June 16, 1945, 9. In addition to Dulles’ speech, see the committee’s report to Commission I of the San Francisco Conference. United Nations Information Organizations 1945–46, 6:486–88. 68. FRUS 1967, 958. Gildersleeve, a professor of English literature, was deeply concerned with not only the ideals expressed in the preamble but the way in which they were expressed. At various stages of the drafting process, she reported to the US delegation her fear that this “ ‘historical document’ . . . would go to posterity as a ‘flop,’ ” her opinion that “from a literary point of view this draft Preamble was ‘perfectly terrible,’ ” and her concern that the unsatisfactory wording of the preamble might mistakenly be attributed to herself (1010, 1029, 1223). 69. Goodrich and Hambro 1949, 89. The Dutch delegation unsuccessfully argued that the phrase “we the peoples” was inappropriate because, for the Netherlands, the power of government flowed not from the people but from the crown. The US delegation’s discussion of the Dutch argument provides interesting insights into the prevailing understanding of popular sovereignty among US officials. See FRUS 1967, 1363–67. 70. Articles 1(3) and 1(2). 71. In 1947, Lauterpacht (1947a, 18) articulated a distinction between the responsibilities of states and questions of enforcement. He insisted that the question of enforcement “must be distinguished from that of the legal obligation of the Members of the United Nations to respect human rights and fundamental freedoms. Even if the United Nations had no power at all to enforce it, directly or indirectly, the legal duty itself would remain in full vigour. Any member disregarding that obligation would be acting contrary to one of the fundamental purposes of the Charter.” 72. Quoted in Lauren 2003, 202–4. 73. Borgwardt 2005, 229. 74. Ibid. 75. UN General Assembly Resolution 260 A (III). 76. Article III defined genocide as action “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.”

254

notes to pages 148–53

77. See the discussion in Schabas 2000, 546. 78. Arbour 2008. 79. Schabas 2000, 546. See also Powell 2004. 80. The key article dealing with the international “punishment” of genocide in the convention is article VI, which provides for the prosecution of individuals for the crime in an “international penal tribunal,” so long as contracting parties have accepted the jurisdiction of that tribunal. However, until the establishment of criminal tribunals for the former Yugoslavia and Rwanda in the 1990s, this second part did little to expand jurisdiction as it relates to the crime of genocide. 81. Schabas 2000, 448. 82. Ibid., 67, 449–51. 83. Simma 2002, 156. 84. Quoted in ibid., 157. 85. Quoted in Rajan 1958, 58. 86. United Nations 1947, 144–46. 87. Ibid., 146. See also Klotz 1995, 41–42. 88. United Nations 1947, 146–47. 89. Ricardo Alfaro, quoted in United Nations, 1946, 368. 90. Klotz 1995, 43. See also Jones 1951, 253–58. 91. Louis 1977, 123; A. Simpson 2001, 180. 92. D. Morgan 1980, 1–2. 93. Porter and Stockwell 1987, 105. 94. Bain 2003, 111; Louis 1977, 226. 95. Quoted in Borgwardt 2005, 36; United Nations Information Office 1943, 16. 96. Quoted in Louis 1977, 154–55. 97. Ibid., 134–46, 243–58. 98. In his 1943 Draft Declaration by the United Nations on National Independence, US secretary of state Cordell Hull acknowledged that, while some subject peoples were almost ready for independence, “the development and resources of others are not yet such as to enable them to assume and discharge the responsibilities of government without danger to themselves and to others.” The British readily agreed that it would be both dangerous and irresponsible to grant self-government too soon. “It is no part of our policy to confer political advances which are unjustified by circumstances,” declared Colonial Secretary Stanley, “or to grant self-government to those who are not yet trained in its use.” Home Secretary Morrison similarly warned: “It would be ignorant, dangerous nonsense to talk about grants of full self-government to many of the dependent territories for some time to come. In those instances it would be like giving a child of ten a latch key, a bank account, and a shot-gun.” Quoted in ibid., 14; Notter 1949, 471; Porter and Stockwell 1987, 156. 99. For a masterful study of the wartime negotiations between the United States and Britain and the drafting of the articles in the charter relating to colonialism, see Louis 1977. 100. UN Charter, article 75. 101. UN Charter, article 76(c). 102. It was agreed that the international supervision of trust territories would be undertaken by the General Assembly and, under its authority, the Trusteeship Council,



notes to pages 153–59

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and these two bodies would be empowered to examine annual reports on dependent territories, to receive petitions from dependent peoples, and to dispatch visiting missions, but only with the consent of the administering authority. Louis 1977, ch. 33. For these provisions, see UN Charter, article 87. 103. N. Crawford 1993, 42. 104. The chapter states: “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabi­ tants of these territories are paramount, and accept as a sacred trust the obligations to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories.” UN Charter, article 73. 105. Quoted in Bain 2003, 123. 106. Ibid., 124. 107. Louis 1977, 541. 108. UN Charter, article 73(a and b), Emphasis added. 109. UN Charter, article 76(b). Emphasis added. 110. Louis 1977, 533–34. 111. N. Crawford 1993, 41. 112. N. Crawford 2002, ch. 7. See also Philpott 2001a, chs. 8–11; A. Simpson 2001. 113. A. Simpson 2001, 304. 114. Ibid., 305–8. 115. Cassese 1995, 39–40. 116. Reus-Smit 2001. For a detailed study, see R. Burke 2010. 117. Reus-Smit 2001, 536. 118. See also UN General Assembly Resolutions 545 (VI) and 1188 (XII). 119. See UN General Assembly Resolution 545 (VI). 120. Quoted in Reus-Smit 2001, 535. 121. Ibid. 122. Quoted in Bain 2003, 138–39. See also R. Burke 2010, 52. 123. UN General Assembly Resolution 2621 (XXV). 124. Reus-Smit 2001, 520. 125. Ibid. 126. These theoretical positions were defended particularly clearly in the debate on “the moral standing of states” between Michael Walzer and his critics. See Beitz 1979a; 1979b, part II; Doppelt 1978, 1980; Luban 1980; Walzer 1980; 2000, 86–108. 127. Reus-Smit 2001, 536. 128. Reus-Smit rightly emphasizes that anticolonialist states championed the development of the international human-rights regime in the early decades of the United Nations. However, as we will see later in this chapter, they also insisted that selfdetermining peoples should enjoy unconditional freedom from outside interference and intervention in the landmark 1960 UN General Assembly resolution on decolonization and in subsequent declarations and discussions within the United Nations (Reus-Smit himself points to this in ibid., 536). 129. Jackson 1990.

256

notes to pages 160–64

130. Bull 1984b, 222–23. 131. Quoted in Vincent 1974, 253. As Bull (1984a, 6) explained: “The defensive posture of non-Western peoples in relation to their rights of sovereignty is understandable. . . . It is by gaining control of states and asserting their rights of sovereignty against other states and the claims of the international community that they have been able to effectively combat the foreign domination to which they were subjected when they lacked these rights. Many are still threatened by foreign intervention, including intervention to seize their resources, and to this a rhetorical assertion of absolute rights of sovereignty is a natural reaction.” 132. See Resolution 2131 (xx), December 21, 1965, “Declaration on Inadmissibility of Intervention in Domestic Affairs of States and Protection of their Independence and Sovereignty”; Resolution 2625 (xxv), October 24, 1970, “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”; and Resolution 36/103, December 9, 1981, “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States.” 133. Vincent 1974, 238. 134. UN General Assembly Resolution 2131 (xx). 135. Ibid. 136. Vincent 1974, 239–40. 137. Ibid., 248–50. 138. For discussion of these interventions and the international reaction to them, see Chesterman 2001, 66–71. 139. Quoted in Vincent 1974, 248–50. For a defense of the Soviet position on non­ intervention in this period, see Korovin 1956. 140. Vincent 1974, 274. Vincent adds that the United States similarly spoke of duties above the principle of nonintervention with respect to the Dominican intervention (see generally 145–232). 141. Ibid., 257–61, 74. 142. For assessments of these cases, see Chesterman 2001, 71–75, 79–81; Wheeler 2000, 55–110. 143. S/PV.1606 (December 4, 1971), 14–18. 144. Quoted in Wheeler 2000, 77. 145. Ibid., 65–68. 146. Quoted alongside similar statements by Sweden and Mauritania in ICISS 2001b, 72n70–73. 147. Quoted in Wheeler 2000, 78. 148. S/PV.2110 (January 13, 1979), 7–8. 149. S/PV.2109 (January 12, 1979), 2. 150. Ibid., 4. 151. S/PV.2110, 5. 152. S/PV.2109, 6. 153. The lines of argument put forward by groupings of states in the Security Council were later repeated when the matter was brought before the General Assembly in November 1979. Wheeler 2000, 97–100.



notes to pages 164–68

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154. For discussion of the Tanzanian intervention and the international response, see Chesterman 2001, 77–79; Wheeler 2000, 111–36. 155. Millar 1967, 148. 156. Ibid. 157. Ibid., 150. 158. See for example UN General Assembly Resolutions 616A (VII), 616B (VII), 721 (VIII), 917 (X), 1016 (XI), 1178 (XII), and 1248 (XIII). See also Klotz 1995, 43–44. 159. Klotz 1995, 44. Only Portugal, which remained a colonial power in southern Africa, cast a negative vote. No states abstained. 160. Quoted in Vincent 1974, 271. 161. Klotz 1995, 45. 162. Ibid. 163. Weiss (2007, 16) suggests, with respect to chapter VII, that “the UN Charter’s language recognizes that sovereignty yields to the demands of international peace and security.” 164. Rapporteur Mr. Paul-Boncour, quoted in Simma 2002, 719. The American delegation at San Francisco noted that “an overwhelming majority of the participating governments were of the opinion that the circumstances in which threats to the peace or aggression might occur are so varied that [article 39] should be left as broad and as flexible as possible.” US Department of State 1945, 91. 165. Millar 1967, 157. 166. Klotz 1995, 46–47. 167. Ibid., 47. 168. In 1963, for example, the Security Council declared South Africa’s policies of racial discrimination and apartheid to be “abhorrent to the conscience of mankind.” UN Security Council Resolution 182 (December 4, 1963). 169. Klotz 1995, 47–54. Moreover, Klotz observes that the mandatory arms embargo, imposed under Resolution 418 in 1977, was framed as a response to the increasing threat posed by the South African regime to regional peace and security rather than a reaction to its domestic policies. 170. A similar story can be told with respect to international society’s condemnation and imposition of sanctions against Rhodesia from 1965 onward on the grounds that human-rights abuses and denial of majority rule amounted to a threat to international peace and security. See B. Roth 2000, 236–43. 171. Donnelly 1999, 75. 172. Ibid. 173. Moyn (2010) has recently argued that it was in this period that the international human-rights movement really emerged for the first time. I would respond that, while this was certainly an important period, Moyn’s work underestimates the importance of the development of human-rights discourse in the 1940s and also the significance of the human-rights arguments offered by champions of decolonization in the 1950s and 1960s. 174. Quoted in Derian 1979, 4. 175. Donnelly 1999, 77. 176. Principle VI of the Helsinki Final Act, http://www.hri.org/docs/Helsinki75.html. 177. Ibid., principle VII.

258

notes to pages 168–78

178. Thomas 2001. 179. UN General Assembly Resolution 36/103. 180. See UN General Assembly Resolutions 31/91 (1976), 32/153 (1977), 33/74 (1978), 34/101 (1979), and 35/159 (1980). 181. United Nations 1981, 146. 182. The declaration was adopted by a vote of 120 to 22 with 6 abstentions. It was strongly supported by African, Asian, eastern European, and Latin American states. Explaining its decision to vote against the declaration, the United States stated its objection to the clause prohibiting the exploitation and distortion of human-rights issues because “its confusing and imprecise language could be interpreted as discouraging progress towards internationally recognized standards.” Ibid., 974. 183. Vincent 1986, 106. 184. Ibid., 152. Vincent also anticipated post–Cold War claims that human rights are not a threat to sovereignty but something that strengthens its moral foundations. He wrote of “human rights not as a challenge to the system of sovereign states, but as something which has added to its legitimacy” and pointed to a notion of “human rights consolidating the state rather than transcending it” (151).

chapter six 1. See chapter 4. 2. A/46/1 (September 13, 1991), 5. 3. ICISS 2001a. 4. A/46/1, 5. 5. Ibid. 6. Boutros-Ghali 1992–93, 98–99. 7. For an overview of Deng’s work as special representative, see Weiss and Korn 2006. 8. See Deng 1995, 2000; Deng et al. 1996. Other early post–Cold War scholarly deliberations on the changing meaning of sovereignty include Chopra and Weiss 1992; Reisman 1990; Scheffer 1992. 9. Deng et al. 1996, xviii. 10. Ibid. 11. Quoted in Willis 1982, 74. 12. Deng et al. 1996, xii–xiii. 13. Ibid. 14. Deng 1995, 279. 15. SG/SM/6613 (June 26, 1998). 16. UNIS/SG/2381 (September 20, 1999). See also Annan 1999. 17. UNIS/SG/2381. 18. Carlson 2004, 15. 19. A/46/PV.41 (November 11, 1991), 34–35. 20. For the Cold War origins of these arguments, see R. Burke 2010, ch. 5. 21. Deng et al. 1996, 11. 22. Quoted in Scheffer 1992, 283n126. 23. Deng et al. 1996, 11–12.



notes to pages 178–86

259

24. Wippman 1993, 192. 25. On the dilemmas relating to the reliance of quasi states on international aid and development assistance during the Cold War, see Jackson 1990, ch. 5. 26. Aning and Atuobi 2009, 93; P. Williams 2007, 275. 27. Geldenhuys 2006, 11. 28. P. Williams 2007, 268. 29. Quoted in Gomes 1996, 41. 30. Quoted in Deng et al. 1996, 15. 31. Quoted in Hutchful 2000, 218. 32. Quoted in Wippman 1993, 176. 33. Ibid. 34. See, for example, Kaldor 2001. 35. Quoted in Reisman 1990, 873. 36. Bellamy, Williams, and Griffin 2004, 72, 77. 37. Chesterman 2001, 121. 38. A/46/1, 2. 39. An additional reason for the failure to adopt such resolutions was of course the lack of political will to respond to some crises, most notoriously in the case of the Rwandan genocide. 40. See the statements by representatives from Yemen, Zimbabwe, Cuba, China, and India in S/PV.2982 (April 5, 1991), 27–30, 31, 47, 55–56, 62–63. 41. See the statements by Romania and France in ibid., 24–25, 53. 42. Ibid., 36. See also the comments by Turkey (6–8) and Zaire (38). 43. Ibid., 54–55. 44. Ibid., 64–65. See also the comments by Romania (22–23). 45. Wheeler 2000, 152–57, 68–69. 46. Ibid., 169. 47. A report by the secretary-general estimated that 4.5 million of a population of only 6 million were threatened by severe malnutrition and disease. At least 1.5 million of these Somalis were deemed to be at mortal risk. An estimated 300,000 had died in the previous eleven months. Chesterman 2001, 141. 48. A/46/PV.41 (November 11, 1991), 34–36. 49. Ibid., 28. 50. Quoted in Roberts 1993, 440. 51. Wheeler 2000, 183. 52. Ibid., 184. 53. Ibid., 186. See S/PV.3145 (December 3, 1992), 16–18, 49–52. 54. S/PV.3145 (December 3, 1992), 7. 55. See the statements by China and India in ibid., 16, 49. 56. Ibid., 13. 57. Quoted in Roberts 1993, 441. 58. Scheffer 1992, 259. 59. See, for example, Barnett 2002; Melvern 2000. 60. A/54/1 (August 31, 1999): para. 67. 61. UN Security Council Resolution 929 (June 22, 1994).

260

notes to pages 186–91

62. Ibid. and UN Security Council Resolution 925 (June 8, 1994). See also Holzgrefe 2003, 42. 63. UN Security Council Resolution 940 (July 31, 1994). 64. UN Security Council Resolutions 1078 (November 9, 1996) and 1080 (November 15, 1996). See Chesterman 2001, 147–48. 65. See, for example, the discussion of Security Council debates regarding the crisis in Haiti in Morris 1995. 66. See UN Security Council Resolutions 1160 (March 31, 1998), 1199 (September 23, 1998), and 1203 (October 24, 1998). 67. See S/PV.3868 (March 31, 1998), S/PV.3930 (September 23, 1998), and S/PV.3937 (October 24, 1998). 68. Quoted in Wheeler 2000, 261. 69. Roberts 1999, 102. 70. S/PV.3989 (March 26, 1999), 16. 71. Ibid., 4, 7. 72. Ibid., 5. 73. See, for example, the statement by the United Kingdom in ibid., 7. 74. These six states were Argentina, Bahrain, Brazil, Gabon, Gambia, and Malaysia. 75. See Wheeler 2000, 278–81, 90–92. Roberts (1999, 105) concludes that no definitive answer can be provided on the legality of NATO’s action. The debate on the Russiansponsored draft resolution condemning NATO reveals that a number of states at least did not consider the operation illegal. However, a failure to condemn a military action does not amount to its legality. 76. Wheeler 2000, 292–93. 77. S/PV.4011 (June 10, 1999), 12–13. 78. Ibid., 9. 79. A/54/PV.8 (September 22, 1999), 16. 80. Quoted in ICISS 2001a, vii. 81. In 2011 alone, the Security Council invoked the concept in resolutions dealing with crises in Libya (1970, 1973, 2016), Côte d’Ivoire (1975), South Sudan (1996), and Yemen (2014). 82. The most prominent examples to date include Darfur, Kenya, Georgia, Myanmar, Gaza, Sri Lanka, the Congo, North Korea, Côte d’Ivoire, and several states caught up in the “Arab Spring” that began in late 2010. 83. See, for example, Bellamy 2009, 2011; Evans 2008b. 84. For a summary of the global consultations held by ICISS and the development of its report, see Bellamy 2009, 35–51. 85. ICISS 2001a, xi. 86. Ibid., 17. 87. Ibid., xi. 88. Ibid., 7. 89. Ibid., 8. 90. Ibid., 16–18. 91. Ibid., 17. 92. Weiss 2007, 98.



notes to pages 191–99

261

93. ICISS 2001a, xii. For earlier examples, see Blair 1999; Fixdal and Smith 1998; Wheeler 2000, 33–52. 94. ICISS 2001a, xii. 95. Ibid. 96. Ibid., xiii. 97. Feinstein and Slaughter 2004; Haass 2003. 98. “The National Security Strategy of the United States of America,” Washington, DC (September 2002), 6. Emphasis added. 99. See Wheeler and Morris 2006. 100. Blair 2004. See also Byers 2005, 106. 101. Powell 2003b; Rice 2003. 102. Powell 2003a. 103. For those who found the invasion justifiable, see, for example, Ignatieff 2003; Teson 2005. But see also Ignatieff’s (2004) subsequent retraction. For those who did not find the invasion justifiable, see, for example, K. Roth 2004; Wheeler and Morris 2006. 104. Evans 2004, 63. 105. A/59/565 (December 2, 2004), para. 203. See also para. 198. 106. A/59/2005 (March 21, 2005), annex, para. 7(b). 107. See “Government Positions on R2P from June GA Hearings,” July 13, 2005, International Coalition for the Responsibility to Protect, http://www.responsibilityto protect.org/index.php?option=com_content&view=article&id=218. 108. Quoted in Traub 2006, 373–74. 109. Article 3(b). 110. Article 4(h). 111. P. Williams 2007, 256. For a more skeptical view of article 4(h) suggesting that it was never intended to override the necessity for sovereign consent, see Abass 2007, 423–27. 112. Executive Council of the African Union, “The Common African Position on the Proposed Reform of the United Nations: ‘The Ezulwini Consensus,’ ” March 7–8, 2005, AU document Ext/EX.CL/2 (VII), 6. 113. Bellamy 2009, 77. 114. “Position Paper of the People’s Republic of China on the United Nations Reforms,” June 7, 2005, Global Policy Forum, http://www.globalpolicy.org/msummit /millenni/2005/chinaposition.htm. 115. For more detailed discussion of the development of international consensus, see Bellamy 2009, ch. 3. 116. Bolton 2005. 117. For a critique of the failure of the summit to address the question of unauthorized intervention, which had prompted the establishment of the ICISS in the first place, see Hehir 2010. 118. A/60/1 (October 24, 2005). 119. Wheeler 2005, 8. 120. The Sudanese representative noted Sudan’s “firm conviction . . . of our responsibility to ensure that our citizens enjoy peace, safety and a life of dignity.” S/PV.5015 (July 30, 2004), 12.

262

notes to pages 199–206

121. Statement by the Russian representative in S/PV.5040 (September 18, 2004), 4. 122. An International Commission of Inquiry, for example, found that, while Sudan had not pursued a policy of genocide, “international offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.” International Commission of Inquiry 2005, 4. 123. S/PV.5519 (August 31, 2006), 8–9. 124. Ibid., 5. 125. Ibid., 6. 126. See statements by the United Kingdom, Japan, Denmark, and Argentina in ibid. 127. Ibid., 3. 128. Ibid., 11. 129. Bolton 2007, 355. 130. For an assessment of their arguments, see Bellamy 2009, 149–55. 131. It is worth observing that China and Russia also offered pragmatic and prudential arguments in addition to their principled objections to intervention in Darfur. 132. See, for example, S/PV.5577 (Resumption 1) (December 4, 2006), 8; S/PV.5989 (May 27, 2008), 9; S/PV.6354 (July 7, 2010), 28. 133. Significantly, it seems that it was diplomatic pressure provided by China that led to Khartoum’s consent to non-African forces in Darfur. While China remained opposed to nonconsensual intervention, this action revealed China’s willingness at least to pressure states into allowing international involvement in their internal affairs. See Teitt 2009. 134. A/63/677 (January 12, 2009). 135. See Hehir 2011. 136. The following analysis is based on A/63/PV.97 (July 23, 2009), A/63/PV.98 (July 24, 2009), A/63/PV.99 (July 24, 2009), A/63/PV.100 (July 28, 2009), A/63/PV.101 (July 28, 2009), and Global Centre for the Responsibility to Protect 2009; International Coalition for the Responsibility to Protect 2009. 137. A/63/PV.99, 25. 138. See for example the statements by Colombia and Uruguay in A/63/PV.98, 13–14, 17–18. 139. Ibid., 11–12. 140. Ibid., 6–8. 141. These states included Cuba, Iran, North Korea, Pakistan, Sri Lanka, Sudan, and Venezuela. See Global Centre for the Responsibility to Protect 2009, 7. 142. A/63/PV.98, 23. 143. See Grotius 2005, ii.xxv.7.1; Vattel 1853, ii.i.3. 144. For discussion of the question of legal obligation, see Glanville 2012. 145. For discussion of this idea, see Bellamy 2010; Luck 2010. Bolton (2005) himself acknowledged international society’s moral responsibility in his intervention in the World Summit negotiations. 146. I hope to follow the present book on sovereign responsibilities with a book on international society’s responsibilities, which will explore these ideas further. 147. P. Williams 2011. 148. BBC News, February 22, 2011.



notes to pages 206–23

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149. Quoted in P. Williams 2011. 150. Kirkpatrick and Fahim 2011. 151. See S/PV.6498 (March 17, 2011). 152. Ibid., 6. For Mill on intervention, see chapter 3. 153. Ibid., 8. 154. Ibid., 10. 155. See for example S/PV.5015 (July 30, 2004), 2–3; S/PV.5619 (January 12, 2007), 2–3; and S/PV.5933 (July 11, 2008), 12–13. 156. On “rhetorical entrapment” see Schimmelfennig 2001. 157. For further discussion and consideration of the impact of the backlash against the Libyan intervention on international deliberations on the crisis in Syria in 2011–12, see Glanville 2013. 158. Obama 2011. 159. S/PV.6498, 4. 160. S/PV.6491 (February 26, 2011), 8. 161. Ibid., 5. 162. S/PV.6498, 7.

conclusion 1. Vattel 1853, ii.iv.56. 2. A similar criticism of this process of reification can be found in Devetak 2007. 3. Chandler 2004, 65; Cunliffe 2010, 83. 4. Ayoob 2002; Chomsky 2011; Mamdani 2010. 5. Cunliffe 2010, 81. 6. Ibid., 91. 7. Ibid., 91–92. 8. Evans 2008a, 284. 9. Evans 2008b. 10. And of course the present-day “responsibility to protect” principle is not immune from this problem of abuse, as the US-led coalition’s invasion of Iraq (2003) and Russia’s invasion of Georgia (2008) have made clear. For an examination of the problem of abuse, see Glanville, forthcoming. 11. See, for example, Mehta 1999; Muthu 2003; Pitts 2005; Tuck 1999. 12. Jahn (2005, 177, 204), for example, claims that “liberal thought in international relations has always been imperialist” and that liberal international relations theory “shares its aims, justifications, and means with imperialism.” Mehta (1999, 20) more cautiously suggests, “I do not claim that liberalism must be imperialistic, only that the urge is internal to it.” 13. See Fitzmaurice 2012; Muthu 2003; Pitts 2005. 14. For Las Casas, see Las Casas 1992, ch. 28. It is worth noting that Las Casas proceeded to argue that such a right of military action did not apply in the case of the Amerindians. On Pufendorf, see Tuck 1999, ch. 5. On Burke, see chapters 3 and 4 of the present work. 15. For an excellent recent assessment of implementation, see Bellamy 2011.

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notes to page 223

16. Beyond these states whose opinions have little credibility in international society, claims of neoimperialism tend to be made not by non-European world leaders but by scholars who ignore the genuine international consensus that has emerged around the concept. 17. Anghie 2004, 114.

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index

abolition. See slave trade, abolition of absolute sovereignty, 3, 6, 12, 16, 31, 32, 33– 43, 46, 48, 56, 58–59, 62–63, 65, 67, 68, 174, 175, 214, 221. See also arbitrary authority; sovereignty; tyranny absolutism, 32, 58–59, 68, 87, 101, 197, 233n53 Adams, John Quincy, 109 Africa, 117–18, 122–23, 125, 149, 157, 161, 164–65, 178–80, 195, 206, 208 African Union (AU), 195, 199–201, 206–9; Article 4(h) (Constitutive Act of the AU), 200 Algeria, 194 Alsace, 70 American Revolution, 3, 5, 7, 8, 28, 59, 60, 61, 62, 63–65, 72, 84, 85, 99, 132, 135, 145, 151, 156, 158, 175, 214, 215, 216 Amin, Idi, 164, 178 ancien regime, 70, 76 Anderson, Perry, 31 Anghie, Antony, 223 Anglo-Japanese Alliance (1902), 113 Annan, Kofi, 175–76, 186, 189–90, 192, 194–96 anticolonialists, 8, 151, 154–55, 157, 158, 176, 216 Antifederalists, 64–65 apartheid, 165–67, 169, 175 Aquinas, Thomas, 44 Arab Spring, 206, 260n82 arbitrary authority, 31, 32, 33, 35, 36, 38, 39, 40, 44, 54, 56, 62, 63, 70, 86–87, 235n139. See also tyranny Armenia, 86, 95, 110, 247n42 arms embargo, 167, 187, 206, 257n169 Arntz, E. R. N., 82

ASEAN (Association of Southeast Asian Nations), 163, 208 Ashley, Richard, 24 Athens, 48 Atlantic Charter, 133–34, 138, 141, 151–52, 154, 156, 251n11 atrocities, 9, 23, 106–10, 124–25, 129–31, 147, 162, 163, 171–73, 178–82, 186–87, 190– 91, 198, 201–5, 206, 211, 216, 219–21, 224–25. See also genocide AU. See African Union Augsburg, Peace of (1555), 51–52 Australia, 138, 142–44, 163, 165 Austria, 68, 74, 75, 88, 90, 108 Austro-Hungarian Empire, 88, 90, 108 Avignon, 70–71 Bailyn, Bernard, 64 Bain, William, 124, 153 Baltic peoples, 86 Ban Ki-Moon, 201, 209–10 Bandung Conference (1955), 156, 168 Bangladesh, 162, 163 Barbarian peoples, 23, 101–3, 106, 116, 120, 129, 130, 218 Barkin, Samuel, 28, 91 Bartelson, Jens, 15 Basque peoples, 86 Bass, Gary, 109 Battle of Navarino (1827), 107 Belarus, 194 Belgium, 123, 125, 161 Bellamy, Alex, 195 Benezet, Anthony, 116 Benghazi, 206–7

285

286

index

Bentham, Jeremy, 100–101 Berlin, Congress of (1878), 94–95. See also Berlin, Treaty of Berlin, Treaty of (1878), 95, 108. See also Berlin, Congress of Berlin Act (1884–85), 121–25, 127, 128, 153; Article VI, 123–25; Belgian Congo, 122–25 Berlin Conference (1884–85), 27, 118, 122–24 Beza, Theodore, 34 Blair, Tony, 193 Bodin, Jean, 3, 6, 20, 28, 31, 34–37, 40, 41, 42, 46, 66, 67, 79 body politic, 62, 66–68, 76 Bohemian revolt (1618), 49 Bolshevik peoples, 88 Bolton, John, 196, 200, 204 Borgwardt, Elizabeth, 134 Bosnia and Herzegovina, 108 Bossuet, Jacques-Benigne, 38–39 Boutros-Ghali, Boutros, 173, 174, 184 Brest-Litovsk, Treaty of (1918), 88 Britain, 73–74, 76–78, 88, 89, 92–93, 95, 100, 101, 107, 108, 113–14, 116–18, 120, 122, 124–25, 134, 136–37, 139, 151–54, 163, 165, 166, 183, 196, 200, 207, 209, 260n73, 262n126 British East India Company, 120 Brookings Institution, 174 Brownlie, Ian, 83 Brundtland Commission, 191 Brussels Act (1890), 118 Bukovansky, Mlada, 70–71 Bulgaria, 90, 95, 108 Bull, Hedley, 14, 51, 160 Bunck, Julie, 10 Burgess, Glenn, 38 Burke, Edmund, 73–74, 76, 100–101, 120–22 Burma, 151, 165 Burns, J. H. 41 Bush, George H. W., 185 Bush, George W., 192–93 Buzan, Barry, 13 Cadogan, Alexander, 136–37 Calvinism. See Huguenots Cambodia, 163, 164, 189 Canning, George, 76, 113–14 Carr, E. H., 28–29 Carter, Jimmy, 163, 167 Cassese, Antonio, 141, 155 Castlereagh, Lord, 76–78, 117

Catalonia, 51, 86 Catholicism, 38, 50, 52, 53, 54, 106 Cecil, Lord Robert, 92 Central Powers (First World War), 88, 90 Chapter VI. See UN Charter Chapter VII. See UN Charter Chapter VIII. See UN Charter Chesterman, Simon, 84, 93 China, 93–94, 113, 134, 136–38, 139, 176–77, 182–83, 185, 187–89, 195–96, 198–200, 203, 208, 209, 210, 262n133 Chopra, Jarat, 25 Christendom, 31 Christians and Christianity, 37, 39, 100, 105–8, 111, 116, 218 Churchill, Winston, 133–34, 151 civilization, 20, 23, 25, 74, 79, 81, 82, 96, 98, 100–131, 138, 152, 180, 220, 222, 223; and human rights 138, 152, 154, 157, 180. See also standard of civilization civil society, 42, 45, 62, 68 Clark, Ian, 32, 50–51, 74, 140 Claude, Inis, 95 Clemenceau, Georges, 95 Cobban, Alfred, 87, 97 codification, 28, 49, 133, 164, 167, 169 coercion, 20, 29, 38, 56, 103, 114, 130, 174, 199, 201–5, 207, 218, 223 Cohen, Benjamin, 136 Cohen, Roberta, 174 Cold War: non-interventionism, 8, 22, 132–33, 176, 211, 216; tension of state and in­ dividual rights, 99, 150, 158, 159–70 Colombia, 210 colonialism, 7, 25, 47, 64, 104, 106, 113, 116, 119–29, 130–31, 151–57, 161, 162, 165, 169, 177, 194, 198, 215, 219 commonwealth, 41–42, 44, 45, 48 Communism, 161, 167–68 Concert of Europe, 20, 22, 77, 83–84 Congo, 122–25, 180. See also Zaire Congolese Free State, 123–24 Congo Reform Association, 124 Conquest. See war, right to wage Consent. See sovereign consent to interference Constant, Benjamin, 78, 100–101 constructivist theory, 4, 11, 13, 15–17, 30, 218, 227n9, 229n27, 231n83, 248n73 Convention on the Prevention and Punishment of the Crime of Genocide (1948), 27, 147–48, 159, 167, 198



index

Covenant of the League of Nations, 85, 91–94, 95, 126, 137; Article 10, 93; Article 15, 91; Article 15(8), 92; Article 22, 126–28 Crawford, James, 24 Crawford, Neta, 154 Cretan peoples, 106 crimes against humanity, 1, 147, 187, 195–98, 201, 203, 206, 210, 223 Crimean War (1854–56), 74 Croat peoples, 86 Croxton, Derek, 54 Cuba, 110, 154, 194, 223 Cuéllar, Javier Pérez de, 173, 181 Cunliffe, Philip, 220–21 Czechoslovakia, 90, 162 d’Argenson, Marquis, 68 Darfur, 172, 199–201, 208 Darwinism, social-, 102, 154 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (1981), 168 Declaration of the Rights of Man and Citizen (1789), 69, 239n59 Declaration of the Rights of Peoples of Russia (1917), 88 decolonization, 8, 128, 132, 150–59, 215 Deng, Francis, 172, 174–75, 177, 190, 192, 196, 200 despotism, 33, 70, 101. See also tyranny Diderot, Denis, 100 divine law, 3, 6, 20, 34–37, 43, 59, 68, 100, 214 divine right theory, 34, 37–40, 41, 62 Djinnit, Said, 195 domestic jurisdiction, 7, 98, 108, 135; and apart­ heid, 165–67; Covenant of the League of Nations, 91–94; early consideration of, 149–50; exception to, 137, 142–43, 252n61; and national self-determination, 84–85, 91, 137, 215; scope, 21, 169, 173; tension with humanitarian intervention, 61, 136, 140, 173; UN Charter, 140–46. See also nonintervention; self-government Dominican Republic, 161 Donnelly, Jack, 167 Druze peoples, 108 Duke of Mecklenburg, 54 Dulles, John Foster, 144, 149 Dumbarton Oaks, 136–44. See also UN Charter Dunn, John, 62

287

Dutch Protestants, 53 dynastic rule, 5, 50, 60, 68, 71, 72 early modern period, 3, 4, 6, 9, 15, 19, 20, 30, 31–59, 82, 100, 102, 108, 172, 198, 211, 213, 214, 216, 217, 218, 225 East Asia, 113 Eastern Europe, 91, 168 East Pakistan, 162, 163 East Timor, 182 Economic Community of West African States (ECOWAS), 179–80 Eden, Anthony, 143 Edict of Fraternity (1792), 71, 76, 239n66 Edict of Nantes (1598), revocation of (1685), 55 Egypt, 142, 154, 165, 194, 206 Elizabeth I, Queen of England, 53 England, 33, 37–38, 41, 51, 53, 54, 61, 63–64, 77. See also Britain English School theory, 4, 12, 14, 131 Enlightenment, 64–68, 116, 119 environmental protection, 5, 191 equal rights, 139, 141, 145–46 Estates General, 20, 34 Estonia, 90 Ethiopia, 180 ethnic cleansing, 1, 70, 192–99, 201, 203, 223 ethnolinguistic, 87, 140 European family of nations. See family of nations European international society, 7, 60, 61, 81, 99, 103–5, 119, 130, 131, 176, 178, 215, 220, 245n19, 247n62 Evans, Gareth, 193–94 Evatt, Herbert, 143–44 external sovereignty, 18, 25 family of nations, 80, 101, 103, 104, 105–6, 109, 112–15, 171, 177, 215. See also standard of civilization Fascism, 137 Federal Republic of Yugoslavia (FRY), 187 Federalists, 64–65 Feinstein, Lee, 192 Ferdinand III, Holy Roman Emperor, 49 Figgis, John Neville, 37 Filmer, Robert, 62, 66 Finnemore, Martha, 27, 75 First World War, 7, 18, 61, 83, 84, 87, 91, 95, 97, 104, 107, 110, 121, 128, 145, 158, 215 Fowler, Michael, 10

288

index

France, 31, 38, 40, 50, 53, 54, 55, 68–73, 74, 76, 88, 89, 99, 100, 107, 108, 117, 145, 163, 166, 183, 188, 207 Frederick the Great, king of Prussia, 68 French Revolution, 3, 5, 7, 8, 28, 60, 61, 65, 66, 68–73, 76, 84, 99, 145, 156, 175, 210, 214, 215, 216 FRY. See Federal Republic of Yugoslavia Gadhafi, Muammar, 1, 205–9 Gandhi, Indira, 162 Gandhi, Mahatma, 129 General Assembly. See UN General Assembly genocide, 1, 22, 146–48, 150, 175, 186, 189, 194–98, 201, 203. See also atrocities Genocide Convention. See Convention on the Prevention and Punishment of the Crime of Genocide (1948) Gentili, Alberico, 46 George I, King of England, 54 Georgian peoples, 86 Germany, 50, 86, 88, 94, 96, 101, 142, 146–47, 207; German princely states, 50, 51, 52–53, 54 Ghana, 156, 177, 200 Gildersleeve, Virginia, 145 Glorious Revolution (1688), 41, 62, 77 Goering, Hermann, 146–47 Golunsky, S. A., 143 Gong, Gerrit, 113, 115 Grant, Mark Lyall, 209 Great Powers (Concert of Europe), 73, 74 Greece, 94, 106, 107, 114 Grenada, 22 Gromyko, Andrei, 136 Grotius, Hugo, 6, 28, 32, 45–48, 51, 56, 58, 82, 100, 108, 204, 210, 214 Group of 77, 177, 184 Guatemala, 154 Guinea-Bissau, 180 Gulf Cooperation Council, 206 Gulf War, 183 Haass, Richard, 192 Hague Conferences, 91 Hall, William Edward, 80, 82, 103 Hapsburg Empire, 49, 51, 91 Hart, H. L. A., 18, 19 Hegel, Georg, 86 Helsinki Final Act (1975), 168 Herder, Johann Gottfried, 101

Hobbes, Thomas, 3, 6, 28, 32, 34, 36, 39, 40, 41–43, 48, 56, 59, 66, 67, 68 Hobsbawm, Eric, 86 Holocaust, 147 Holy Alliance, 75, 76, 84, 91 Holy Roman Empire, 49, 50 Hont, Istvan, 70 Hotman, François, 34 Huguenots, 20, 34, 46, 220 humanitarian intervention, 3–4, 162, 202; Cold War 162–64; doctrine of, 7, 61, 84, 158, 198, 211, 215; contra domestic jurisdiction, 61; contra freedom from intervention, 159, 175, 218; ICISS and, 190–92, 194; Kosovo, 187–89; League of Nations, 93, 98; nineteenth and early twentieth century, 7, 61, 81–84, 98, 104, 105–12, 130, 215; opposition to, 109, 162, 181, 185, 189, 194, 202–3; in the Ottoman Empire, 98, 105–9; post–Cold War, 13, 25, 181–89, 210, 216; religious toleration and, 175; United States in the Western hemisphere, 109–12. See also responsibility to protect human rights: and Africa, 178–81; codification and monitoring, 164–65; colonialism and decolonization, 150–59; and domestic jurisdiction, 149, 183; during late 1940s, 146–50; emergence during Second World War, 132–46; international, 12, 52, 55, 104, 160, 167, 255n128; and non-intervention during Cold War, 159–70; and responsibility to protect, 190–91, 195–96, 198, 253n71; and sovereignty, 2, 3, 8, 11–12, 16, 25, 49, 52, 61, 97, 128, 131, 132, 133, 150, 157–59, 167, 172, 173–78, 181–82, 184, 188–89, 215, 227n8, 228n15, 245n213, 251n11, 258n184; Universal Declaration of Human Rights (1948), 148, 167; violation of, 186–87, 192, 206, 210, 220; violation justifying military intervention, 163–64, 183, 185, 187–88, 192, 210, 220, 257n170. See also humanitarian intervention; individual rights; rights of man Hungary, 88, 90, 162 Hurd, Ian, 27 Hurrell, Andrew, 25 ICISS. See International Commission on Intervention and State Sovereignty Ignatieff, Michael, 193



index

Imperial Aulic Council, 54 imperialism: anti-imperialism, 118–19, 121, 151–52, 154; and civilization, 23, 109, 118–22, 177, 219–20, 222; European, 100– 101, 104, 108–9, 111, 119–29, 217, 219, 222–23; French imperialism and European nationalism, 71–72, 86; Japanese, 114; legacy of (European), 7–8, 104, 130– 31, 177, 217, 219–20, 222–23. See also colonialism, standard of civilization India, 101, 120, 149, 151, 154, 162–65, 182, 185, 188, 194, 196, 198, 202, 207 individual rights, 7, 8, 9, 25–26, 60–61, 64–65, 67, 68, 69, 70, 85–87, 91, 99, 132, 134–35, 145, 151, 155, 157, 159, 160, 185, 215, 222, 238n18, 238n45. See also humanitarian intervention; human rights; rights of man Innocent IV, Pope, 45 International Commission on Intervention and State Sovereignty (ICISS), 25, 173, 189–96, 201, 203, 216, 228n18 International Council of Women, 93 international law, 4, 8, 14, 21, 24, 73, 79–84, 91, 92, 94, 101, 103, 106, 111, 112–16, 117–18, 121, 123, 124, 129, 132, 140, 143, 146–50, 157, 163, 169–70, 173, 188, 194, 196, 197, 198, 203, 211, 215, 222. See also law of nations international relations theory, 2, 3, 9, 10, 11– 17, 24, 43, 49–50, 212, 213, 217–19 international society, 21, 27–28, 104–5, 107, 109, 112, 115, 128, 130–34, 140, 147, 158– 59, 163–64, 169, 171–72, 178, 180, 182, 184, 190, 191, 196–98, 202, 204–5, 209, 211–18, 221, 225; constructing sovereignty, 5, 14–15, 17, 18, 22, 24–26, 28–29, 60, 72, 87, 158, 162, 181, 219; emergence of, 6, 14, 28, 30, 33, 44, 49, 51, 59; enforcing sovereign responsibilities, 1, 8, 44, 83–84, 125, 131, 159, 170, 175–76, 182, 184–87, 200, 205, 208, 211, 216, 225; and human rights, 140, 146–47, 159, 169, 182, 198, 216; and humanitarian intervention, 81–82, 105; mutual recognition of states, 6, 31–32, 44, 51; and national self-determination, 7, 60, 74, 93–94; and popular sovereignty, 90–91, 145; and responsibility to protect, 1, 8, 27, 95–96, 98–99, 125, 140, 150, 159, 169, 191, 193, 196, 198, 201, 203–4, 216; and sovereign accountability, 1, 5, 9, 20, 22, 55, 153–55,

289

158, 169, 171, 172, 174, 181, 190, 216, 220; and sovereign rights, 132–33, 140, 146–47, 159, 160, 215; sovereignty as organizing principle, 10, 73. See also European international society intervention, 20, 22, 23; right of, 12, 33, 58, 73, 75, 95, 124, 127, 170, 173, 195, 200; sovereign freedom from, 1, 3, 8, 13–14, 21–24, 32–33, 44, 49, 55–56, 60, 61, 85, 92, 94, 103, 104, 112, 113, 130, 132, 133–37, 140, 145–46, 159, 160, 174, 176, 215, 220, 230n56, 255n128. See also humanitarian intervention; nonintervention; sovereignty: traditional or Westphalian meaning of; war, right to wage Iran, 165 Iraq, 165, 182–87, 193–94 Jackson, Robert (author), 13, 24, 25, 159 Jackson, Robert (justice), 147 Jackson Preece, Jennifer, 97 James, Alan, 21 James I, King of England, 24, 37, 65, 106, 120 Japan, 92–93, 94, 113, 114 Jewish peoples, 86, 106 Joseph II, Holy Roman Emperor, ruler of Austria, 68 just war, 32, 44–46, 48, 57–58, 59, 73, 81 Kabila, Joseph, 180 Kant, Immanuel, 101 Keene, Edward, 131 Kellogg-Briand Pact, 93–94, 142 Kelsen, Hans, 14 Khmer Rouge, 163–64, 189 Kissinger, Henry, 89, 94 Korea, 113 Korman, Sharon, 93 Koskenniemi, Martti, 14 Kosovo, 175, 182, 187–89, 192 Krasner, Stephen, 3, 11, 13, 15–17, 22, 23, 30, 50, 116, 235n139, 136n155 Kurdish peoples, 182, 184 Lansing, Robert, 97, 98, 99, 112, 131, 146, 174, 243n170 Lapradelle, Albert de, 111 LAS. See League of Arab States Las Casas, Bartolome de, 222 Latin America, 161, 202 Latvia, 90

290

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Lausanne, Treaty of (1923), 106 Lauterpacht, Hersch, 129, 140 law of nations, 3, 44–49, 56–58, 79, 82, 100–103, 112–15 law of nature. See natural law Lawrence, T. J., 80, 82, 112 Lawson, George, 41, 62 League of Arab States (LAS), 206–8 League of Nations, 90, 91–94, 96, 97, 125–29, 141, 144, 153. See also Covenant of the League of Nations League to Enforce Peace, 91 Lebanon, 106, 165, 207 Leopold II, King of Belgium, 123–25 Levellers, 41, 237n1 Liberia, 179–80 Liberty: civil, 68, 186; and colonialism, 113, 119, 151, 156, 162; and equality, 71–72, 79, 85, 87; freedom of association, 75; individual, 7, 42, 52, 55, 60–62, 64–65, 67–70, 83, 85, 91, 97, 99, 143, 175, 214; natural, 47, 56, 57, 62, 68, 79; popular, 34; religious, 52–54, 93, 134, 198; of states, 56–57 Libya, 1, 23, 171–72, 185, 205–11, 216, 223, 225 Lithuania, 86, 90 Lloyd George, David, 88, 125 Locke, John, 7, 20, 28, 33, 38, 41, 48, 60–67, 69, 87, 121, 130, 214 Lorimer, James, 106, 120 Louis, William Roger, 153–54 Louis XIV, King of France, 20, 28, 38, 39–40, 55, 67 Louis XVI, King of France, 68–69 Louis XVIII, King of France, 72 Luther, Martin, 37, 40, 52 Lutheranism, 31, 48, 52 Macedonians, 86, 106 Machiavelli, Nicolo, 156 Madison, James, 65 Malet, Edward, 122 Malmvig, Helle, 22 mandates system, 104, 121, 125–29 Mandela, Nelson, 179 Manning, C. A. W., 14, 21, 24 Maronites, 106 Marsiglio of Padua, 31 Marx, Karl, 156 mass atrocities. See atrocities Mazzini, Giuseppe, 75, 85 McKinley, William, 110

medieval period, 31, 37, 41, 50, 100 Merriam, Charles, 36–37 Metternich, chancellor, and the Metternich system, 73–76, 78 Mexico, 138, 154 Middle East, 208 Mill, J. S., 20, 78–79, 81, 85, 88, 101–3, 119, 120, 208, 210–11 Milosevic, Slobodan, 187 minority rights, 3, 16, 25–26, 52, 55, 61, 94–98, 99, 108, 127, 135, 140, 142, 145, 158, 175, 198, 215, 220. See also minorityrights regime minority-rights regime, 7, 94–98, 99, 127. See also minority rights monarchical principle, 73–76 monarchomachs, 33, 38, 61 Monroe, James, 109 Monroe Doctrine, 111 Montenegro, 95 Montesquieu, Charles Secondat, Baron de, 64, 119 Montevideo Convention (1933), 25 moral personality of the state, 56, 86 Morel, E. D., 124–25 Morgenthau, Hans, 13, 230n56 Munster, Treaty of (1648), 49. See also Westphalia, Peace of (1648) mutual obligations between rulers and subjects, 6, 33–34, 36, 41, 43, 59, 100, 214. See also social contract theory Naples, 22, 75 Napoleon Bonaparte, 50, 71–72, 74, 86 Napoleonic Wars, 71–72, 76–77, 117 National Assembly of France, 69–71 Nationalism, 71, 74, 85–87, 88; liberal, 86, 88; Volk, 86. See also national selfdetermination Nationality Decrees in Tunis and Morocco (1923), 149. See also domestic jurisdiction national minorities, 19, 26, 85, 88, 90, 94–96, 141, 158, 218, 224, 244n192. See also minority rights national self-determination. See selfdetermination NATO (North Atlantic Treaty Organization), 23, 182, 187–89, 192, 223 natural law, 3, 6, 8, 32, 35, 42, 44–49, 55, 56–58, 59, 62, 66, 82, 100, 101, 103, 117, 210, 216, 218 natural liberty, 56, 57, 68, 79



index

Nazism, 146, 151, 154 Neapolitan jurists, 31 neoimperialism, 221–24, 264n16. See also imperialism Netherlands, 41, 188 New Zealand, 138, 142, 165 NGO. See Non-Governmental Organizations Nietzsche, Friedrich, 15 no-fly zone, 183, 206–8 non-European world, 7, 29, 61, 81, 99–131, 158, 172, 176, 178, 211, 215–16, 222–23, 227n11. See also civilization; standard of civilization Non-Governmental Organizations 139, 190, 200 non-interference. See non-intervention non-intervention: Belgian Congo, 124; China, 177, 182–83, 185, 187–89, 195, 198, 199; contingent historical construction, 3–4, 9, 15–17, 21–24; during the Second World War, 135; in the Cold War, 132–33, 159– 64, 168–70, 171, 175, 176, 179; in the Covenant of the League of Nations, 91– 94; in the early modern period, 48–49; in the nineteenth century, 76–81; in the UN Charter, 136–37, 140–46; Organization of African Unity, 179; post-Cold War, 171–212; principle of, 49, 61, 73–81, 82–83, 93, 140, 159–65, 168–69, 179, 186–87, 202, 211, 236n170, 240n100; and Vattel, 57–58. See also humanitarian intervention; intervention; sovereign rights; sovereignty: traditional or Westphalian meaning of Nuremberg Trials, 146 OAU. See Organization of African Unity Obama, Barack, 209 OIC. See Organization of the Islamic Conference Operation Desert Storm, 182 Operation Provide Comfort, 183–84 Oppenheim, Lassa, 10, 106, 114–15, 129 Organization of African Unity (OAU), 178–79, 195; charter of OAU (1963), 179 Organization of the Islamic Conference, 206–7 organized hypocrisy, 13, 16. See also Krasner, Stephen Osiander, Andreas, 50–51, 89 Osnabruck, Treaty of (1648), 49, 50, 52. See also Westphalia, Peace of (1648)

291

Ostorio, Nestor, 210 Ottoman Empire, 81, 94, 104–9 Paine, Thomas, 116, 156 Pakistan, 154, 162–65 Palmerston, Lord, 76 Panama, 22, 150 Paris, Treaty of (1856), 105, 108 Paris Peace Conference (1919), 84, 88–92, 94, 97, 119, 121, 140, 243n170. See also Versailles, Treaty of (1919) Parker, Henry, 41 Parliament, 37, 41, 62, 63, 64, 78, 117, 120, 151 Paul, the Apostle, 37, 40 Peng, Li, 177 Permanent Court of International Justice, 149 Permanent Mandates Commission, 127 Philippines, 154, 160, 165 Phillimore, Robert, 80, 81, 211 Philpott, Daniel, 13, 17 Piedmont, 75, 76 Pitt, William (the Younger), 70 Pitts, Jennifer, 118 Plato, 56 Pol Pot, 163 Poland, 51, 90, 95–96, 147 Pomerance, Michla, 89 popular sovereignty: American conception of, 7, 64–65, 175, 238n17; emergence of, 60, 157, 160, 210, 214, 237n1; French understanding of, 7, 71, 175; and individual rights, 8, 65, 67, 87; and intervention, 185, 193; legitimacy, 3, 72, 84, 91, 145, 175; Locke, 61–63, 67; and nationalism, 69, 71–72, 78, 85, 87, 98, 214–15, 239n69; of Parliament, 41; and responsibility to protect, 220; rise of, 60–99; Rousseau, 65–68; tension of national versus individual rights, 7, 60–61, 75, 84, 99, 145–46, 157, 214–15; and trusteeship, 130–31. See also American Revolution; Antifederalists; Federalists; French Revolution; Locke, John; Rousseau, Jean-Jacques; selfdetermination; self-government; sovereignty; tyranny Portugal, 51, 117, 163 postcolonial, 125–27, 142, 159–60, 165, 169–70 Powell, Colin, 193 Protestantism, 37, 50, 52–55 Prussia, 54, 68, 74–75, 108 Pufendorf, Samuel, 47, 56, 58, 210, 222

292

index

Qatar, 199–200 Quadruple Alliance, 76 Quakers, 116 racial equality, 92, 169 racism and racial discrimination, 129, 130–31, 144, 154, 159, 160–61, 164–67, 169, 170, 176, 219 realist international relations theory, 13 recognition. See sovereign recognition Reformation, 37, 52 regional organizations, 192, 197, 203, 206, 208–9 Reichstag, 54 religious toleration, 6, 33, 44, 49, 52–55, 92, 94, 175, 214, 235n139 responsibility: and sovereignty, 1, 2, 3, 8, 9, 12, 17, 18–21, 22, 29–30, 32, 34, 36, 40, 43, 53, 55–56, 59, 83, 94, 99, 126–28, 130, 131, 152, 159, 169, 175, 197, 201, 202, 204, 211, 213, 215, 217–19, 221, 224; definition, 18–21; responsible for, 6, 18–19, 32, 37, 40, 43, 61, 76, 98, 159, 171, 175, 214; responsible to, 9, 19, 61, 96, 113, 114, 128, 174, 214, 220 responsibility to protect: development of, 171– 212; and humanitarian intervention, 191, 194; ICISS Report (2001), 189–92, 203–4; international consensus, 192–97; and international society, 27, 125, 140, 150, 159, 169, 191, 193, 196, 198, 201, 203–4, 216; and sovereignty, 1, 3, 8, 9, 12, 43, 59, 128, 130, 159, 169, 197, 201, 202, 204, 211, 219, 221, 224; UN General Assembly debate (2009), 201–3; UN World Summit (2005), 1, 27, 172, 197–99. See also humanitarian intervention; responsibility; sovereign responsibilities Responsibility to Protect, The (ICISS Report, 2001), 189–92. See also responsibility to protect Reus-Smit, Christian, 15, 17, 52, 155, 157, 158 Rice, Condoleezza, 193 rights. See equal rights; individual rights; human rights; minority rights; rights of man; sovereign rights rights of man, 3, 61, 67, 69, 101, 116, 138, 158. See also human rights; individual rights Robespierre, Maximilien de, 70 Rodogno, Davide, 106 Rolin, H., 141 Romania, 95 Rome, 48

Roosevelt, Franklin Delano, 133–35, 141, 151–52 Roosevelt, Theodore, 110–11 Root, Elihu, 111–12, 131 Rousseau, Jean-Jacques, 7, 20, 28, 60, 61, 64, 65–68, 69, 84, 86, 116, 119, 156, 214 Russia, 51, 54, 74, 75, 77, 88, 106–8, 182, 187, 188, 196, 199, 200, 203, 207–8, 210. See also Soviet Union Rwandan genocide, 22, 178, 186, 189, 203, 259n39 Saddam, Hussein, 193 Salic law, 36 Salim, Ahmed Salim, 179 Salomon, Charles, 129 San Francisco Conference (1945), 26, 129, 132, 136, 138–45, 149, 150, 153, 155, 166 Saudi Arabia, 154, 165 Savoy, 53, 55 Schabas, William, 148 Second World War, 8, 52, 92, 104, 128–32, 141, 152, 165, 180, 198, 215 Security Council. See UN Security Council self-determination, 7, 18, 25, 70, 85–91, 94, 115, 125, 140–42, 215, 243n170, 243n174; and domestic jurisdiction, 84–85, 91, 137, 215. See also Paris Peace Conference; self-government self-government: and trusteeship, 129–30, 150, 152, 215; autonomous, 1, 11, 217, 219; principle of, 78, 93, 138, 142, 153. See also nationalism; self-determination Sepúlveda, Juan Ginés de, 119 Serbia, 187 Sharp, Granville, 116 Sharpeville killings (1960), 165–66 Sierra Leone, 180 Simms, Brendan, 54–55 Singapore, 163, 202, 203 Slaughter, Anne-Marie, 192 slave trade, abolition of, 3, 7, 16, 98, 101, 104, 116–19, 122, 123, 215, 224, 241n120, 248n73 Smith, Adam, 100 Smuts, Jan, 125–26, 138–39 social contract theory, 35, 41–43, 63, 64, 66–68, 174 society of states. See international society Somalia, 182–86 South Africa, 138, 149, 150, 164–67, 175, 183 Sovereign. See absolute sovereignty; sovereign consent to interference; sovereign



index

recognition; sovereign responsibilities; sovereign rights; sovereign statehood; sovereignty; sovereignty as responsibility sovereign consent to interference, 108, 171, 172, 182, 184, 186–87, 190, 195, 198–201, 203, 205, 208–9, 216, 261n111 sovereign recognition, 6, 11, 12, 17–18, 23, 24–26, 28, 30, 32, 34, 40, 50, 51, 53, 74, 83, 91, 94–97, 104, 105–6, 107, 112–16, 124, 129, 131, 148 sovereign responsibilities: definition, 18–21; enforcement by international society, 1, 8, 44, 83–84, 125, 131, 159, 170, 175–76, 182, 184–87, 200, 205, 208, 211, 216, 225; human rights, 3, 8, 25, 97, 128, 133, 159, 161–62, 165, 173–78. See also popular sovereignty; responsibility to protect; sovereignty; sovereignty as responsibility sovereign rights, 7–9, 15, 22, 23, 33, 98, 123, 130, 140–46, 151, 158, 160, 180, 215, 219. See also non-intervention; selfgovernment; sovereignty sovereign statehood, 49, 90, 94, 96, 104, 119, 128, 130, 145, 151, 160, 169, 176 sovereignty: and international relations theory, 2–5, 9, 10–17; rules of, 17–26; traditional or Westphalian meaning of, 1–3, 8, 9, 11– 17, 25, 32–33, 39, 44, 49, 50, 55, 57, 59, 132–33, 136, 140, 145–46, 159, 169–71, 173, 176, 182, 211, 213, 215, 217, 219–21, 228n7. See also absolute sovereignty; popular sovereignty; sovereign consent to interference; sovereignty recognition; sovereign responsibilities; sovereign rights; sovereign statehood; sovereignty as responsibility sovereignty as responsibility, 1, 7, 12, 83, 104, 115, 173–81, 192, 193, 215, 216, 221 Soviet bloc, 159, 162, 170 Soviet Union, 134, 136, 139, 154, 160–62, 164, 168. See also Russia Spain, 22, 53, 75, 111, 113, 117 standard of civilization, 4, 7, 104, 112–16, 129– 30, 215. See also civilization; family of nations; non-European world Stettinius, Edward, 137 Stowell, Ellery, 83, 108 Suárez, Francisco, 45, 46, 47, 48, 210 sub-Saharan Africa, 25 Sudan, 199–201, 223 Suganami, Hidemi, 16, 21 Sweden, 50, 54 Syria, 107–8, 165, 194

293

Taft, William Howard, 91, 92 Tanzania, 164 Temperley, Howard, 127 terrorism, 5, 192 Third World, 160, 162, 166 Thirty Years’ War (1618–48), 49, 52, 55 Thomas, Daniel, 168 Thomson, Janice, 24 Transitional Council of Libya, 207 Treitschke, Heinrich von, 86, 87 Trim, D. J. B., 53 Truman, Harry, 139 trusteeship: accountability to sovereign people (Locke), 121, 130–31; Berlin Act, 121–24, 127; and civilization, 119, 121; institutionalization of, 27, 116, 121, 130, 175; mandates system, 104, 127–28, 250n139; principle of, 104, 121, 126, 129, 153, 215; and self-government, 129–30, 150, 152, 215; UN Charter 150–55 Tunisia, 206 Turkey, 51, 88, 90, 95, 106, 108 tyranny: and absolute sovereignty, 6, 31, 32– 34, 36, 37–39, 40, 43, 46; and the French Revolution, 69; intervention against, 20, 44, 46–48, 58, 59, 179, 193, 197, 204, 209, 210, 219–20, 222, 224–25, 227n11; and non-intervention, 58, 79, 82; and nonresistance, 34–35; punishment of, 32, 36, 42, 44–48, 55, 58, 62, 82, 108, 118, 146–48, 172, 175, 198, 204, 210, 214, 218, 232n35; and resistance, 46. See also arbitrary au­ thority; divine right theory; tyrant tyrant, 35, 39, 43, 232nn35–36: holding to account, 32, 36, 175, 209–10, 214, 218, 220–21. See also tyranny Uganda, 164, 178 UN Charter (Charter of the United Nations, 1945): Article 1(2), 141, 152, 155; Arti­ cle 1(3), 135, 139, 141; Article 2(4), 142, 162, 215; Article 2(7), 144, 149–50, 183; Ar­ticle 39, 166; Chapter VI, 194; Chap­ ter VII, 143–44, 166, 181, 183–84, 187, 192, 194, 196–99, 202, 206, 253n66, 257n163; Chapter VIII, 143, 148, 192, 196, 197, 202; colonial trusteeship, 129; colonialism, 151–54; decolonization, 154–57; drafting of, 136–46; Kosovo, 187–89, 192; Libya, 206; responsibility to pro­tect, 194–98, 201–3; tension of human and state rights, 8, 99, 145–49, 158–59, 175–78, 183

294

index

UN General Assembly, 132, 146–50, 154–63, 165–68, 173, 175, 177, 181, 184, 186, 189, 192, 194, 197, 201, 223; Resolution 44(1), 150; Resolution 421 D (V), 155; Resolution 616 (VII), 165; Resolution 637 A (VII), 155; Resolution 1514 (XV), 156; Resolution 1598 (XV), 165 UN World Summit (2005), 1, 27, 171, 172, 190, 194–201, 204, 205, 211, 216, 222, 225 United Dutch East India Company, 47 United Kingdom. See Britain United Nations Conference on International Organization, 138 United States, 22, 64, 69, 88–89, 92, 93, 95, 104, 105, 109–12, 133–35, 136–37, 139, 143, 153, 161, 162, 163, 167–68, 188, 196, 215, 239n59, 248n79, 248n85, 258n182. See also American Revolution UN peacekeepers, 199 UN Security Council: 1990s, 181–89; Africa, 180–81; Chapter VII, 166–67, 194–98, 201–3, 205, 218, 253n66; during Cold War, 162–64, 166–67; Darfur, 199–201; Iraq, 193; Libya, 1, 171, 172, 205–11, 216, 225; Resolution 134, 166; Resolution 688, 182, 184; Resolution 794, 184–85; Resolution 925, 186; Resolution 929, 186; Resolution 1706, 199; Resolution 1970, 206, 209; Re­solution 1973, 1, 205, 207–10, 225; responsibility to protect, 171–72, 192–99, 201–3; right of intervention, 20, 132–33, 162–63; UN World Summit (2005), 190, 194. See also humanitarian intervention; intervention; non-intervention; UN Charter Universal Declaration of Human Rights (1948), 148, 167 Utrecht, Peace of (1713–14), 74 Vattel, Emmeric de, 3, 6, 28, 33, 44, 48, 56–58, 73, 79, 83, 100, 204, 210, 214

Vaudois peoples, 53 Venezuela, 194, 223 Versailles, Treaty of (1919), 26, 73, 84, 91, 135. See also Paris Peace Conference Vieira, João Bernardo, 180 Vienna, Congress of (1815), 26, 73–75, 117 Vietnam, 161, 162, 163–64, 194 Vincent, R. J., 12, 78, 161, 169–70 Vindiciae Contra Tyrannos, 34, 46, 47 Vitoria, Francisco de, 46, 119, 210 Voltaire (François-Marie Arouet), 64 Von Martens, G. F., 79 Walker, R. B. J., 15 Walzer, Michael, 111 war, right to wage, 3, 6, 14, 23, 32, 44, 45, 48, 57–58, 74–75, 83–84, 93, 100, 102, 119, 120, 141–42, 218–19, 220, 222–23 war crimes, 1, 195–98, 201, 203 Weber, Cynthia, 22 Weiss, Thomas, 25 Welsh peoples, 86 Wendt, Alexander, 15 Werner, Wouter, 24 Western Hemisphere, 104, 105, 109, 215 Westphalia, Peace of (1648), 2, 3, 6, 16, 26, 32–33, 43, 44, 48–56, 70, 94, 132, 169, 214, 221. See also sovereignty: tradi­ tional or Westphalian meaning of Wheaton, Henry, 80, 82, 114 Wheeler, Nicholas, 183, 188 Wight, Martin, 4, 51, 72, 90, 97, 129, 229n50 Wilde, Jaap de, 24 Wilson, Woodrow, 87, 88–90, 91, 92, 93, 94, 95, 110, 125, 156, 174 Wolff, Christian, 56, 100 World Summit. See UN World Summit (2005) Woolsey, Theodore, 80, 82 Wright, Quincy, 121 Zaire, 180–82, 186. See also Congo