International Relations and International Law PDF

57 International Relations 5 International Law KN U T T R A ISB AC H International law is an important area to understand and much of it is theoretical or historical in nature – building on themes...

57 International Relations 5 International Law KN U T T R A ISB AC H International law is an important area to understand and much of it is theoretical or historical in nature – building on themes explored in the previous chapters. You have seen in the preceding chapter that some of the discussed theories regard ‘norms’ as a regulatory force in international relations, although the theories differ in their understanding of the relevance and function of these norms. This chapter takes up this notion and introduces you to the role of international legal norms as a particular means for the social regulation of international affairs. Imagine a small settlement with a number of properties on each of which stands one house in which lives one family. This settlement has no common government, parliament, court system or police force. The internal affairs of each family as much as the borders of each property are respected as inviolable. The families have predominantly bilateral relations with each other and engage in commercial exchanges of goods and services. It is commonly accepted that if the head of a family dies, the established promises to other families and agreed exchanges are respected by the heirs. When children decide to delineate a new property or when a new family from elsewhere wants to settle in, the other families must agree first and recognise this new property. When disputes between families arise, they may result in violence, especially if someone challenges an established border or intervenes with a family’s interests. It is commonly accepted that one may have recourse to force to defend one’s interest in family and property. Other families do not intervene in these disputes as long as their interests are not affected or they have formed a special alliance with another family. Ask yourself now whether you would call this settlement a ‘legal system’? Would you even speak of ‘laws’? Perhaps intuitively you would say no. Yet, consider for a moment which kind of rules and principles must exist even in such a setting. How does any form of regulation work? Why does it work? If  International Law 58 you delve a little on these questions, you will encounter some of the foundational legal institutions that exist in most legal systems. The concept of property, title, territory and border are there; a principle of autonomy and supreme authority seems to apply to the families; and the institution of contract certainly exists. You will also detect rules of some sort in the form of established customs and you might even identify a principle that says that ‘agreements need to be kept’. Lawyers make use of the Latin phrase ‘pacta sunt servanda’ to express this basic principle. Thus, even in such a rudimentary setting, some customary rules and principles exist even if they are not called ‘law’ or written down in any form. You will also note that some characteristics of what you may intuitively regard as essential to a legal order are missing: There is no authority ‘above’ the families which makes laws for all, adjudicates conflicts or enforces laws and judgements. There is no government, parliament, court or police system. The rules and principles seem to stem from established practices motivated by the functional needs of cohabitation, pragmatism or mere common sense. Whatever rules exist in this settlement, their validity and effectiveness are routed exclusively in the will of the families and their members. This settlement resembles many peculiarities of the international legal order. In fact, the settlement resembles a certain depiction of the international legal order that most international lawyers today would call outdated, even though it is precisely this depiction of a primitive legal order that haunts international law even today. If you translate the situation of the settlement to the international plane and substitute the families with states, you will get a picture of international law characterised by states as the principal actors. In this depiction, states hold the supreme and exclusive authority over their polities and follow predominantly customary and contractual rules in the relations between them but have no world government above them. The principle of sovereignty expressed this supreme and exclusive authority of states over their territory, and it confirmed the equal status of all states. It developed its current meaning through the writings of legal and political philosophers between the sixteenth and eighteenth century. Sovereignty continues to be the foundational pillar of the international legal order. For many decades this foundational pillar of international law read: sovereign states are the masters of international law with no world government above them. This meant that the validity of any legal rule depended on the will of states or, conversely, that states are only bound by authoritative legal precepts (norms) that they have consented to. In a famous judgement in the Lotus case, the Permanent Court of International Justice in The Hague – the principal judicial organ of the League of Nations, the predecessors to the 59 International Relations International Court of Justice (ICJ) of the United Nations (UN) – stated in 1927 (The Case of the S.S. ‘Lotus’, judgement of the Permanent Court of International Justice, 7 September 1927, 18): International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. What law is international law? It is this depiction of international law that often culminated in the question of whether international law was really law. How could international legal norms be effective if their validity depended on the will of states, the very subjects international law should govern? This doubt in the validity and effectiveness of international law ultimately led to a rupture between the two disciplines of international law and international relations theory after the Second World War. Two scholars, Edward Hallett Carr and Hans Morgenthau, suggested around this time that international law was particularly inept for understanding the behaviour of nations. They were disappointed by what they identified as an idealistic belief in international law which, after all, had not prevented – for the second time – a world war. They proposed instead a more ‘realistic’ assessment of international relations based on power and interest. The founding realist school of international relations theory thus questioned the effectiveness and relevance of international law as a decisive influencing factor for the behaviour of states and for the assurance of international peace and security. Much has changed since then. The international legal order has diversified in every possible way. There are countless bilateral and multilateral contracts between states (called treaties or conventions in international law), and more than 5,000 intergovernmental organisations and their different organs engage in the regulation and administration of nearly all aspects of international life. International legal norms pervade global affairs. Every time you travel internationally, send an email, or update your social media profiles, there are not only domestic but supranational legal norms at play, including regional norms as in the European Union. Be it border control, diplomatic and consular relations between countries, the determination of flight and navigation routes,  International Law 60 internet regulation, privacy, the use of postal and telecommunication services, industrial standards or cross-border environmental hazards – international law permeates these areas as much as the better-known fields of the protection of human rights, humanitarian interventions and the fight against transnational terrorism. It is important to understand, then, that the question of whether and how international law matters depends not least on one’s conceptual outlook on international life. This chapter introduces you foremost to the (traditional ‘occidental’ or ‘Western’) normative understanding of international law in order to show you how international lawyers think and how they use international law. This implies a focus on valid legal rules that authoritatively regulate international life. Yet the understanding of international law as a system of legal norms is not the only possible approach, nor is it the solely valid one. In fact, there are numerous other approaches that complement the normative outlook on global law (Walker 2014). It is also important that the occidental depiction of international law is not the only one existing in the world. Scholars from outside the West have shown, for example, how the dominant view of international law neglects important and often earlier contributions to international law by other cultures. Asian, African and Latin American countries should form part of our understanding of international law. For example, international treaties existed already in Africa and Asia over three thousand years ago. Islamic legal thought, present in Persia, India, South Asia and Europe, also had legal regulations of how to conduct hostilities at least since the seventh century. There is not one single conception of international law or international politics. By focusing on the normative understanding of international law, the chapter takes a modest approach and steers a middle ground. There are also conceptualisations that portray international law as a cosmopolitan order securing solidarity and peace in a ‘post-Westphalian’ world in which states have largely lost their status as sole sovereigns. On the other hand, there are theories that continue to question the social effectiveness and relevance of international legal norms to shape the behaviour of international actors. In addition, one can also analyse international law through empirical research that uses collected data about the social behaviour of actors as it is done, for example, to scrutinise the effectiveness of human rights norms. Yet, a purely empirical analysis has difficulty in conveying the idiosyncrasy of normative thinking and argumentation in international law. Even if collected data shows instances of non-compliance with human rights norms, it would be wrong to draw conclusions from this about the binding character or range of social effects of these norms. 61 International Relations International lawyers as a particular group of professionals learn techniques to determine which legal norms exist and which are applicable to the relevant actors in a certain situation. Lawyers speak of the sources and subjects of law. They learn how to apply these norms using specific techniques, such as interpretation or the balancing of conflicting rights. These professional techniques are not value-neutral or objective but involve subjective choices and politics. An approximation to objectivity and ideals of justice is achieved only through specific procedures that need to be followed, recognised modes of argumentation and particular processes of decision-making. In a nutshell, international law consists of certain conventions on argumentation and modes of conflict resolution that some regard as a craft, others as an art. Most likely it is both. The contents of international law One distinguishes broadly between domestic, regional and (public and private) international law. Domestic law stems from domestic lawmakers and regulates the life of the citizens of a particular state. Regional law, such as European Union law or the law of regional human rights mechanisms, stems from regional intergovernmental institutions and addresses the governments and individuals of a particular geographical region or legal regime. Public international law is the subject of this chapter and addresses – in most general terms – relations involving states, intergovernmental organisations and non-state actors, which include today individuals, non-governmental organisations (NGOs) and private corporations. Private international law concerns conflicts of laws that may arise in cases where the domestic laws of different states could apply, for example in cases of cross-border e-commerce, marriages or liabilities. Within public international law, a distinction is traditionally drawn between the law of peace and the law of war (humanitarian law). The law of peace regulates peaceful relations and includes such subject matters as international treaty law, the law of diplomatic and consular relations, international organisation law, the law of state responsibility, the law of the sea, the environment and outer space or international economic law. International humanitarian law (IHL) is the law of armed conflicts (jus in bellum – the law applicable in war) and regulates the conduct of international and non-international hostilities. In times of war, the use of force, including the killing of human beings, is not prohibited. The legal regulation of armed conflicts goes back to the mid-nineteenth century and comprises a large body of customary rules and a series of important conventions and additional protocols to these conventions adopted primarily in The Hague and Geneva.  International Law 62 International humanitarian law regulates, among other things, the methods and means of warfare and the protection of certain categories of persons – for example, the sick and wounded, prisoners of war and civilians. More specific treaties prohibit the use of certain types of weapons (such as chemical or biological weapons, mines or cluster munitions) or the protection of cultural property during armed conflict. Much of the development and codification of this body of law is the merit of the International Committee of the Red Cross, founded in 1863 by Henry Dunant, which is a private humanitarian institution based in Geneva and forms part of the International Red Cross and Red Crescent Movement. At the transitional points between the law of peace and the law of armed conflict lies the legal regulation of the resort to force (jus ad bellum – the law to engage in war) which concerns the conditions that need to be met to use force legally as, for example, in instances of self-defence (Article 51, UN Charter). More recently, scholars also speak of the regulation of the transition to peace after the end of armed conflicts (jus post-bellum – the law after war) which includes questions over how to end armed conflicts, transitional justice and post-war reconstruction. The strict distinction between the law of peace and the law of armed conflict has been somewhat blurred with the rise of international human rights law and international criminal law. Human rights law builds on and develops fundamental principles of humanitarian law for the protection of individuals. On the other hand, human rights have considerably influenced the refinement of humanitarian rules for the protection of combatants and civilians. International criminal law has seen a rapid development after the end of the Cold War first with the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda and then with the establishment of the International Criminal Court in 2002. From ‘no world government’ to global governance Consider now what it meant to establish, for example, an international legal prohibition of torture. Torture was a common and legal method of interrogation before the seventeenth century. A legal prohibition of torture would mean that governments are obliged by international law not to allow their officials to use torture. How did an international legal norm prohibiting torture develop? What were its effects? Subjects: Who makes international law and to whom does it apply? You have seen already that traditionally only states (for historical reasons 63 International Relations also the Holy See/Vatican and the Maltese Order) were subjects of international law and bearers of privileges and obligations. Privileges included sovereign status, immunities, jurisdiction or membership in international organisations, for example. Obligations towards other states arose from voluntary contracts, from the principle of non-intervention or from responsibilities for wrongful acts. The status of a sovereign state implied full membership in the international society of states. It is a contentious issue in international law whether a territorial entity gains the legal status of a sovereign state depending only on a number of factual criteria (such as the existence of a population, territory, effective government and capacity to enter into international relations) or whether this requires also a formal recognition by other states. Already the criteria of statehood are contentious, and in practice it is not always easy to determine whether all conditions are met. In addition, for political reasons states have sometimes recognised other states that did not fulfil one or more criteria of statehood, or they have not recognised states despite them fulfilling all criteria. After the break-up of the former state of Yugoslavia, for example, Kosovo declared its independence from Serbia in 2008. Serbia has not formally recognised Kosovo as an independent sovereign state. Neither have a number of other states such as Russia, China and Spain, which all try to control movements for regional independence or autonomy in their own territory. Coming back now to the example of the prohibition of torture, which options did individuals have under international law to seek redress for acts of torture? If a foreigner was tortured by officials of another state, the home state could complain to the latter. The individuals themselves, however, could do very little under international law, for individuals were not subjects of this body of law. Even worse, if a state tortured its own citizens, this was an internal matter in which other states could not intervene. Sources: How is international law made? The most important and most concrete sources of international law are bilateral and multilateral treaties. Multilateral treaties are usually prepared during long negotiations at diplomatic state conferences where a final treaty text is adopted and then opened for signature and ratification by states. When an agreed number of states have ratified the treaty, it enters into force and becomes binding on the member states. Article 38 of the Statute of the International Court of Justice lists as sources of international law on which the court may rely in its decisions: treaties,  International Law 64 customary international law, general principles of law that exist in most domestic legal systems (such as behaving in ‘good faith’) and, as a subsidiary means, also judicial decisions and scholarly writings. Customary practices are even today still a common and highly contentious source of law. Customary law refers to the established practices of states that are supported by a subjective belief to be required by law. If a customary rule exists, it is binding on all states except where a state has persistently objected to this rule. You can imagine already that the deduction of legal rules from social practices and subjective beliefs poses many difficulties and bears many insecurities regarding proof and actual content. Also during diplomatic conferences that prepare a treaty text, many difficult compromises are brokered. To paraphrase a saying that is often attributed to Otto von Bismarck, laws are like sausages. It is better not to see them being made. In the context of our example of the prohibition of torture, imagine the following scenario: state A has signed and ratified the International Covenant on Civil and Political Rights, which contains a prohibition of torture in Article 7, and is also party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This country fights terrorism and brings suspected terrorists to secret prisons in countries which are not party to any of the above conventions. In these prisons, the suspects endure intense interrogations which include sleep deprivation, waterboarding (causing the sensation of drowning) and other measures. As an international lawyer faced with this case your starting point would be the aforementioned international treaties that contain a prohibition of torture. You would need to determine whether the interrogation measures amount to torture. Here, the codified definition in international treaties and the interpretation of this definition in previous cases can give you important guidance. You would also need to determine whether the particular state in question has ratified the pertinent treaty or treaties. In our example, the situation is complicated by the fact that both treaties limit the territorial applicability of the treaty to all individuals within a state’s territory and subject to its jurisdiction. Hence one could argue that instances of torture on the territory of non-state parties do not fall within the ambit of the treaties. Also a counterargument is possible. One could make a case for the extraterritorial application of the treaty if the acts of torture on foreign soil were effectively controlled by a state that is a member to the treaty. You would then proceed to see whether a customary rule exists that prohibits the use of torture. Even if the treaties prohibiting torture have not been ratified by a state, you could argue that the treaty has codified an already existing 65 International Relations customary rule or, if a large majority of states has ratified the treaties, that this is evidence that a customary rule has been formed. In light of horrendous historical experiences, you may also argue that the prohibition of torture is of such fundamental importance that today no derogation from this rule is permitted. In other words, you would argue that the prohibition of torture is a peremptory rule of international law (ius cogens – peremptory law) that does not permit any exception. You can see now how the early idea of state consent as a necessary requirement for an international rule still permeates these argumentations. The main difficulty often consists in establishing state consent or, at times, in constructing alternatives for it. Global organisation: The United Nations era The end of the Second World War and the end of the Cold War are probably the most significant historical watersheds in the development of recent public international law. The end of the Second World War in 1945 led to the establishment of the United Nations and the rapid development of several areas of international law, including human rights law, international criminal law and international economic law. The United Nations is the most important global intergovernmental organisation with major offices in New York, Geneva, Nairobi and Vienna. It was established with the principal aim to ensure peace and security through international co-operation and collective measures. As of 2017, it has 193 member states. Article 2 of the UN Charter, the founding treaty of the United Nations, confirms as guiding principles the sovereign equality of the member states, the peaceful settlement of disputes, the prohibition of the use of force and the principle of non-intervention. Delegates of all member states meet once a year during the General Assembly to discuss pertinent issues of world politics and vote on non- binding resolutions. The Security Council is the highest executive organ of the United Nations in which the representatives of ten selected member states and five states with permanent seats decide on issues of peace and security through binding resolutions, which may result in economic sanctions or even military actions. The ‘permanent five’ (the People’s Republic of China, France, Russia, the United Kingdom and the United States) hold the privilege of a veto right allowing them to prevent the adoption of resolutions of the Security Council on any substantial (as opposed to procedural) issues. Major reform initiatives of the composition or voting procedures of the Security Council have been unsuccessful so far. This taints the effectiveness and the  International Law 66 democratic legitimacy of the Security Council and, especially during the Cold War, it severely constrained the Security Council as two of its key members (the United States and the Soviet Union) were engaged in an ideological conflict. Politically, however, the right to veto was a necessary concession to ensure the participation of the most powerful nations in a world organisation. Numerous principal and subsidiary UN organs and specialised agencies engage in the application, enforcement and development of international law. This work comprises, for example, classical legal work in the International Law Commission and special committees of the General Assembly, practical work in the field and diplomatic efforts by Offices of High Commissioners and their staff, or actions taken by the Security Council. All of these bodies, and many more, promote and shape international law in various ways. In the International Law Commission, for example, a group of experts create reports and drafts on specific topics that are then submitted to a committee of the General Assembly and can provide an important basis for later treaty negotiations. The Offices of the High Commissioners for Human Rights and Refugees do important work in the field where their staff endeavour to uphold international law often in crisis situations. Their experiences influence also subsequent interpretations of international law, for example, regarding who qualifies as a refugee. The United Nations Educational, Scientific and Cultural Organization (UNESCO) fulfils a crucial function in disseminating knowledge about international law by promoting education and research on human rights, justice and the rule of law. Community and governance: The changing structure of international law The existence of a world organisation, the legal prohibition of the use of force, the establishment of a system of collective security and the protection of human rights have caused fundamental changes in the international legal order. International lawyers and politicians speak frequently of the ‘international community’ that co-operates to pursue community interests which cannot be achieved by single states alone. These community interests may range from environmental challenges and cultural heritage to issues of human security. How much the meaning of sovereignty has changed, one can see, for example, in the principle of a shared ‘responsibility to protect’ (R2P). According to this principle, states have an obligation to prevent gross human rights violations not only at home but also abroad, if necessary through forceful United Nations measures. The protection of the individual from severe atrocities has thus become a matter of national, regional and international concern. This means that states can no longer claim that gross 67 International Relations human rights violations are internal matters and that they are protected by their sovereignty. Today there are countless actors that engage in the making, interpretation, use and enforcement of international norms. States still are the major international actors and the principal makers and addressees of international norms. Yet the bureaucracies of intergovernmental organisations and their organs, numerous international, regional and domestic courts and tribunals, non-governmental organisations and even groups or single persons (so- called ‘norm entrepreneurs’) engage in the pronunciation, interpretation and dissemination of international legal norms, standards and other types of ‘soft law’. And, they often do this without, or even against, the will of states. For example, a NATO-led intervention in Kosovo in 1999 was executed without the authorisation of the UN Security Council. NATO (the North Atlantic Treaty Organization) is a collective security organisation, effectively a military alliance, of Western states. It was originally created to help contain the spread of communism in Europe during the Cold War but has endured in the years since. Its actions in Kosovo contributed to the establishment of the International Commission on Intervention and State Sovereignty which was a private expert group under the auspices of the Canadian Government to respond to UN Secretary-General Kofi Annan’s challenge on how to respond to large-scale violations of human rights and humanitarian law. The commission produced a report on ‘The Responsibility to Protect’ to which both the UN Security Council and the General Assembly have repeatedly referred to and which is used as an argumentative tool by civil society actors, including many non-governmental organisations. You can thus see how a private initiative has transformed into public normative authority. This multitude of norms, legal regimes, actors and normative processes is reflected in more recent approaches to international law that focus more on pluralistic governance processes than on a unified legal system, and more on informal law-making than on formal sources. The functioning of international law In order to understand how different actors make normative claims and how they use international law, the aforementioned broader perspectives offer valuable insights. The emergence of a norm like the prohibition of torture and its influence start long before such a norm is codified in an international treaty. Political scientists and legal scholars have described a normative ‘life cycle’ that relies on a (transnational) social process which is characterised by an initial norm emergence, followed by early adoption of this new norm, spreading of this acceptance and ultimately by widespread internalisation of  International Law 68 the norm and compliance with it. For the first stage of norm emergence, the influence of so-called ‘norm- entrepreneurs’ (such as private individuals, lobbying groups, non- governmental organisations) is essential. Through a combination of means (e.g. framing of issues, campaigning, empathy appeal, persuasion, shaming, claiming, declaring, etc.) and on different organisational platforms, the norm- entrepreneurs try to enunciate norms and persuade governments to embrace them. In the case of torture, this meant that even literary novels and political pamphlets contributed to a change in social perception and an increase of empathy with victims which in turn led to the social unacceptability of torture. Once a ‘critical mass’ of actors have adopted a new norm prohibiting torture or of a responsibility to protect, a threshold or tipping point is reached. At this second stage, the norm starts to spread through international society. Here an active process of transnational – domestic, regional and international – socialisation takes place which, primarily, states, international organisations and networks of norm entrepreneurs carry forward. Those state and non-state actors that have endorsed the norm engage in a process of redefining what qualifies as appropriate behaviour within international society. Social movement theory, which studies mobilisations in society to make collective claims about social changes, provides valuable insights on the conditions and effects of this process. A third phase of internalisation or obedience is reached when norms ‘achieve a “taken-for-granted” quality that makes conformance with the norm almost automatic’ (Finnemore and Sikkink 1998, 904). If this process succeeds, norms such as the prohibition of torture become truly transnational in the course of this process. They exert normative force domestically through constitutional guarantees and through the work of civil society groups. In addition, the norms are invoked in regional and in international human rights fora such as regional and international courts or human rights bodies. Thus, these norms acquire a transnational character through interactions between a variety of actors – both state and non-state – across issues areas and across historic public/private and domestic/international dichotomies (Koh 1997, 2612). This, however, does not mean that international law is a guarantor for a just global order. Much rests on the will and interests of the actors involved. International law itself cannot solve injustices and cannot manufacture solutions. Ultimately, many of the politically charged issues simply reflect in the language of international law. For example, we have seen already that international law prohibits the use of force by states in peace times except 69 International Relations when the forceful measures have been authorised by the UN Security Council or when a state acts in self-defence (Article 51, UN Charter). In this scenario, not only politicians but also international lawyers will argue in legal terms whether the use of force against an (allegedly) imminent terrorist attack that has not yet occurred can be justified as a form of ‘pre-emptive’ self-defence. Similarly, since it is not illegal to kill enemy combatants during an armed conflict, international lawyers will exchange legal arguments about whether terrorists qualify as combatants and whether the killing of terrorist suspects in a foreign country is permissible under international law because of a continuing global war on terror that amounts to a state of armed conflict. Finally, also in the ambit of our example on the prohibition of torture, lawyers will argue about whether the situation of a hidden ticking bomb might exceptionally permit torturing the apprehended attacker if this could save innocent lives. This is not to say, however, that international law is inherently indeterminate or arbitrary. The normative force of international law lies in the creation of new argumentative needs, in the possibility to challenge established positions, in the specific required modes of argumentation, in the institutionalised fora for conflict resolution and in the justificatory potential that rests in law. Conclusion Although questions about the relevance and effectiveness of international law persist, especially when powerful nations use their political power to ‘bend’ international law, today hardly anyone declares international law as irrelevant. Accordingly, the discussion has shifted from ‘whether international law is really law’ to ‘how do international norms matter’. Also the divide between international law and IR theory has been closing for some time now. Liberal approaches to IR acknowledge that norms have an important role to play for the shaping of state preferences and in international co-operation to attain common aims by setting common normative frameworks. The English school argues for an international society in which states through interaction naturally create rules and institutions, as exemplified in the example of the families at the beginning of this chapter. The constructivist school focuses on social processes, including legal norms that shape the self-understanding, role, identity and behaviour of actors. Social movement theory analyses the creation and effects of group organisation in civil society and how campaigning, for example for human rights, gains social force and translates into political results. International lawyers, on the other hand, have been opening up towards empirical, sociological and political approaches to understand how norms  International Law 70 develop and how actors exert normative authority. This goes beyond understanding international law exclusively as a coherent legal system with recognised sources of law and specific techniques of legal practice. International lawyers increasingly adopt a more pluralistic and holistic outlook and an understanding of international law as a social process. This social process results in normative regulations that function as standards of conduct to guide and evaluate the behaviour of international actors. That the individual has acquired such a prominent role in international law as a central subject beyond state confines is truly remarkable. Today, each individual has rights that permeate the international and that are fundamentally embedded in an – albeit imperfect – global law which in turn permeates each of our lives. This law is not static but in a constant process of development. It requires to be made effective, challenged, defended and reformulated in order to fulfil its emancipatory potential. 71 International Relations 6 International Organisations S H A Z EL IN A Z. A BID I N As you may have picked up in the previous chapter, we live in a world of laws. While sovereign states are the principal legal actors, international organisations are increasingly important in helping us govern our world. Today’s international system is made up of a cacophony of different voices and interests. In addition to states there are also non-governmental organisations, multinational corporations and hybrid organisations which are a mix of all the different categories. Imagine stepping off a plane into a foreign country. As you disembark you switch on your phone to check the messages that may have come through while you were in transit. You follow the sign that directs you to the airport’s exit, clear immigration, and then pick up your luggage at the designated carousel. You then head straight for the ‘nothing to declare’ green lane to exit the airport. Those routine actions would have already brought you into contact with the work of at least four different international organisations. The aircraft that you arrived in would have been one of the many planes under the International Air Transport Association (IATA) and regulated by standards set by the International Civil Aviation Organization (ICAO); that you were able to use your phone to check messages would have been courtesy of the work of the International Telecommunication Union (ITU); and your customs clearance would have been facilitated by the Kyoto Convention set by the World Customs Organization (WCO) to simplify the customs process. These are just some of the ways in which international organisations form an integral part of our everyday lives. Whether these organisations are working to build houses for the impoverished like UN-Habitat does, or working to ensure a standard of health for everyone like the World Health Organization (WHO) does, there is no running away from international organisations. Today, it is increasingly difficult to imagine an international system in which the only voices that matter are those of states.  International Organisations 72 International governmental organisations An international governmental organisation (IGO), also referred to as an intergovernmental organisation, is an organisation with a membership of only states. The organisation is usually founded upon a treaty, or a multilateral agreement, and consists of more than two states. Member states determine the way in which the organisation is run, vote within the organisation and provide its funding. Established in 1945 following the end of the Second World War, the United Nations (UN) is a prime example of an international governmental organisation with almost universal membership. Only states can be members of the United Nations and membership is valued because it confers upon the member state international recognition of its sovereignty. As of 2017 there are 193 UN member states – but it is important to note that a small number of states are not members. Taiwan, for example, has repeatedly requested membership but has had its request blocked by China. This is because China regards Taiwan as a part of its sovereign territory and does not recognise it as an independent nation. Taiwan, of course, wants United Nations membership because this will mean that the international community fully accepts its sovereignty. The Taiwan example has gone unresolved for decades due to the major role that China plays within the United Nations as one of its most powerful members. There are six main organs of the United Nations. Once a state is a member, it is automatically a member of the General Assembly. This is the most democratic organ where each state gets one vote, no matter how big or small, rich or poor the country. It is also the place where, every September, world leaders give their address to the international community from behind a dark green podium with the UN crest clearly visible. The other organs are the Security Council, the Economic and Social Council (ECOSOC), the Trusteeship Council, the Secretariat and the International Court of Justice. By far the most powerful organ is the Security Council, which has 15 members. Five states – China, France, Russia, the United Kingdom, and the United States – are permanent members of the Security Council. The other ten are voted in by the General Assembly for two-year tenures. The Security Council is the only organ that can impose sanctions on states or deploy military forces on behalf of the international community to keep the peace in a certain area, region or country. The United Nations itself does not have its own military force, but it can muster military and police personnel through contributions by its members. These UN peacekeepers are distinguished by their trademark blue helmets, giving rise to the nickname ‘Blue Berets’. 73 International Relations In order to be inclusive the United Nations has welcomed the participation (note participation, not membership) of civil society groups during some of its meetings, but never at the sessions of the all-important Security Council. Organisations may speak as observers to the General Assembly, or as organisations with ‘consultative status’ with the UN Economic and Social Council for example. There are civil society organisations on all issues, ranging from disarmament to oceanic noise pollution, and from mental health to refugees. There are also private individuals who are invited to speak at special United Nations meetings. It is therefore common to witness heart wrenching first-hand accounts of sexual abuses, torture, or discrimination. Such testimonies have the power to galvanise the international community. Yet, no matter how powerful these testimonies are, it is ultimately up to the member states to determine the course of action. The Secretariat, including the Secretary-General who leads the United Nations, cannot take action on its own and can only appeal to member states to ‘do something’. Because of this, the United Nations remains undeniably and irrevocably an international governmental organisation and not a level of authority above the states. Here, the other designation sometimes used to describe IGOs – ‘intergovernmental organisation’ – is helpful in appreciating the difference in ‘global governance’ (which IGOs bring to our international system) and ‘global government’ (which does not currently exist). Virtually all IGOs are intergovernmental. This means that their power rests with governments (the member states) not with the organisation. States are free to leave the organisations, or even in some cases to ignore them. There are usually consequences for both actions, but the fact remains that even in extreme cases – when an organisation like the United Nations imposes sanctions, or authorises war, on a state – international governmental organisations do not rule over states. Such punitive measures are only possible when the members of the UN Security Council are in accord, agree with such proposals, and a coalition of states agrees to finance and partake in the operation. Therefore, the power rests with the states themselves, especially the more powerful states, and there are regular examples of states rejecting a certain course of action because it was not in their national interest. Here, the failures of the United Nations to establish a coordinated response to the Syrian war comes to mind, despite hundreds of thousands killed and millions displaced since 2011. If an IGO was not intergovernmental, as explained above, it would be in the rare category of ‘supranational’. To have supranational powers means that an organisation is actually able to govern its members and have a degree of independence from its member states. The only clear example of a major organisation such as this is the European Union (EU). For that reason, it is often described as sui generis, or ‘unique’ in its own right. The European  International Organisations 74 Union is unique because, unlike the United Nations and other international governmental organisations, it can actually be said to exercise a degree of sovereignty over its members via law-making powers in certain areas that its members agreed to relocate to the supranational level. It also has its own currency which, together with other capabilities, gives it some of the powers otherwise only seen in states. This is not without controversy in Europe and there is a rising tide of discontent with the growing power of the European Union and a desire in some political circles to weaken, or even dissolve, the organisation so that more of the power returns to the states. The ‘Brexit’ debate, when the British public voted in a 2016 referendum to leave the European Union, raised many of these issues and is an interesting instance of the idea of supranationalism being challenged. Leaving aside bigger organisations like the European Union and the United Nations, international governmental organisations are typically more specific in nature – often dealing with just one particular issue or a specific geographical area. The work that they do is often clear from their names – for example, the International Whaling Commission (IWC) or the International Criminal Police Organization (INTERPOL). These are issue-based organisations and their members are worldwide. Then there are organisations of states in specific regions, such as the Association of Southeast Asian Nations (ASEAN) and the African Union (AU). These often emulate elements of the European Union, but none (as yet) feature supranational powers. Other organisations are neither geographically limited nor limited to a single issue. The Commonwealth of Nations, for example, is an organisation whose membership is restricted to former colonies of the United Kingdom. Having been around since 1949, the Commonwealth also has its own permanent secretariat. An international governmental organisation that does not have its own fixed secretariat is the BRICS – an intergovernmental organisation of only five countries (Brazil, Russia, India, China and South Africa) focusing on economic and financial issues of interest to its members. The point to remember is that as long as an organisation is composed exclusively of states, or governments (including government agencies), it is an international governmental organisation operating according to international norms. These international governmental organisations are outside the United Nations but are almost always tied to the UN in some way or another. For some, these ties are explicitly spelled out in the document that establishes them. For others, the simple goal of ensuring that their work is relevant ties them to the United Nations at least tangentially. Take the International Atomic Energy Agency (IAEA), for example. The founding statute of the Agency dictates that its reports should go to the United Nations so that the Security Council may take action against any countries that fail to meet their obligations. This works out well for the international community – as the 75 International Relations International Atomic Energy Agency monitors the use of nuclear technology while the UN Security Council enforces measures to ensure state compliance over nuclear safety and security. International non-governmental organisations and hybrid international organisations International non-governmental organisations (INGOs) are non-governmental organisations that either work at the international level or have international members. International non-governmental organisations are a mixed bag, best described as those organisations that are not intergovernmental, business entities or terrorist organisations (Davies 2014, 3). There is no exact figure for the number of international non-governmental organisations that are currently active. The United Nations lists over 4,000 with consultative status – which may only be a fraction of their true number. Some spectacular and headline-grabbing protests are organised by certain international non-governmental organisations. Images of Greenpeace protestors chaining themselves to ships, or of anti-globalisation protestors blocking streets, are usually well covered in the media. These are the organisations whose mission is to raise awareness among the general public on issues of concern. No less effective are those that carry out their missions away from the limelight. Mercy Corps, for example, helps disaster survivors in countries around the globe, Médecins Sans Frontières (Doctors Without Borders) is often the first highly skilled responder to a crisis and Oxfam is at the forefront of various poverty eradication programmes around the world. Former UN Secretary-General Kofi Annan termed groups like these the ‘unsung heroes’ of the international community. Hybrid organisations are those international organisations whose membership comprises both states and civil society members. The states may be represented by government departments or agencies; while civil society, as we have seen earlier, can be just about anyone or any organisation. One such hybrid international organisation is the International Union for the Conservation of Nature (IUCN), which deals primarily with the preservation of the environment and whose members include government agencies from countries such as Fiji and Spain and non-governmental organisations from all corners of the globe. Individual members are often experts and affiliated to one of the IUCN’s six commissions. The number of hybrid organisations has increased as more and more partnerships are forged between states and civil society. There is now an understanding that hybrid organisations, where governments, non-governmental organisations and multinational corporations all have a say, can be highly effective because of the reach, expertise and  International Organisations 76 funding that such groupings can command. How international organisations shape our world One of the more visible international non-governmental organisations in the world is the International Red Cross and Red Crescent Movement. Today, the Red Cross is synonymous with work with victims of humanitarian crises, but before its founding there was no organisation to carry out such work and no guidelines for humanitarian concerns arising out of war and conflict. In 1862, Swiss businessman Henry Dunant published a book describing the aftermath of the 1859 Battle of Solferino, which he had experienced first-hand. He wrote how the soldiers were left wounded on the field with no medical care even after the battle had ended. Dunant managed to organise the local population into providing assistance to the sick and wounded. Many were moved by his account and in 1863 Dunant founded the International Committee of the Red Cross. Dunant’s efforts prompted a push to provide for the care of wounded soldiers and civilians caught in places of conflict. This was the start of the Geneva Conventions, which all UN members have since ratified. The Geneva Conventions form part of the international law that governs humanitarian concerns arising out of war and conflict and stand as testimony of how an international non-governmental organisation (in this case the Red Cross) can start a movement that later develops into international norms and standards. States were once the judge, jury and executioner of all matters related to the conduct of international affairs. Under the guise of state sovereignty, the state could act with impunity as far as its citizens and lands were concerned. Those days are effectively over as the pressure of outside interests, amplified through international non-governmental organisations, have eroded state impunity. In no other area has there been such a major leap forward than in the development of norms involving international human rights. It also used to be the case that monarchs, presidents, prime ministers and other state leaders held immunity from any kind of criminal prosecution while they were in power. That too, has now changed. The International Criminal Court, which sits in The Hague, now has the jurisdiction to hold individuals responsible for a range of crimes. The United Nations briefly discussed the idea of an international criminal court in the 1950s, but it took the efforts of a coalition of international non-governmental organisations, calling themselves the Coalition for the International Criminal Court, to realise the vision of a world court for heinous crimes. In 1997, the Coalition eventually managed to garner the political will, and within a few short years the Court had been established. Today, approximately two thirds of the world’s states are members and dozens of individuals have been prosecuted for war crimes, genocide and other crimes against humanity. 77 International Relations There are many success stories of how international organisations, once thought to be the tools of states, have come into their own and set the agenda for the international community. Nowhere is this more evident than in the area of environmental preservation. It took the combined efforts of vocal non-governmental organisations and might of the United Nations to bring states together for a watershed conference on the environment in Rio de Janeiro in 1992. Often called the Earth Summit, the UN Conference on Environment and Development was revolutionary because it emphasised the collective responsibility of states towards the wellbeing of the earth. Due to the Earth Summit, states signed the UN Framework Convention on Climate Change, the Convention on Biological Diversity, and the Convention to Combat Desertification – treaties that became important milestones in the fight to save the environment from the harmful practices of mankind. The momentum the Earth Summit generated still has an impact today as nations continue to work together, albeit often acrimoniously, to combat climate change. For the average citizen, the most important international organisations might be those whose work can be felt on the ground. The UN Development Programme has been a lifeline for many impoverished nations, helping to raise populations out of absolute poverty, developing programmes to allow the people to be economically sustainable and closing the gender equality gap that exists in many developing nations. In these cases, instead of states contributing to the organisation and keeping it financially afloat, it is sometimes international governmental organisations such as the World Bank that provide the means for the states to pursue development policies that would otherwise not be possible. However, the results of these assistance programmes have been mixed and they are often contentious, as they have sometimes left countries in significant debt or failed to improve their economies. Conclusion Like most other things, international organisations are only as good as the results they yield, but there is no denying that they play a central role in international affairs. Their growth, particularly in the twentieth century when the concept of global governance came of age, means that nearly every aspect of life is regulated in some way at the global level. International organisations, in their vast array of forms, complement and sometimes positively challenge the role of the state. Going back to the airport analogy used at the start of this chapter, we may not always be aware of how international organisations affect even the most mundane things in our lives. But, our lives would be materially different without them. 123 International Relations 11 Protecting People AL E X J. BE L L AMY The United Nations (UN) was established in 1945 with a charter that set out to ‘save succeeding generations from the scourge of war’ and ‘uphold faith in fundamental human rights’. Three years later, the Universal Declaration of Human Rights was signed at the United Nations, calling for states to work together to ensure that everyone enjoys ‘freedom from fear’ and ‘freedom from want’. Added to the issues of global inequality and poverty addressed in the previous chapter, finding ways of protecting people from harm is a major contemporary debate. While the picture overall might be improving, too often the international community does too little, too late to protect people from atrocities, civil wars, and other human-made ills. In the twentieth century tens of millions of people were killed in wars between states, while an even higher number were killed by their own governments. Facts like these pose a major challenge for the way we think about world politics. Our contemporary international order is based upon a society of states that enjoy exclusive jurisdiction over particular pieces of territory and rights to non-interference and non-intervention that are enshrined in the United Nations charter. This system is in turn prefaced on the assumption that states exist primarily to protect the security of their citizens. In other words, the security of the state is considered important, and worth protecting, because states provide security to individuals. But, as countless examples show, not every state protects the wellbeing of its population. From recent examples like Syria to examples from the past century, threats to individual security have tended to come more from one’s own state than from other states. Facts like this pose a major challenge to international peace and security and raise questions about whether there are circumstances in which the security of individuals should be privileged over the security of states. Key positions The debate about human protection hinges on the issue of whether a state’s  Protecting People 124 right to be secure and free from external interference should be conditional on its fulfilment of certain responsibilities to its citizens, most obviously protection from mass violence. We might plot various responses to this question along two axes – the first relating to our conception of whether moral progress is possible in world politics (more optimistic or more pessimistic) and the other relating to which actors should be privileged (states or individuals). The first axis refers to the way we understand the potentiality and limits of world politics. Some approaches are prefaced on an optimistic vision that dialogue between communities makes moral consensus and shared purposes possible (Linklater 1998). The alternative is a fatalistic or ‘tragic’ conception of world politics based on the view that the world is composed of culturally distinct units with different values that pursue their own, distinct goals with limited possibility for cooperation (Lebow 2003). This account is sceptical of progress, doubts that morality does (or should) play a role in world affairs, and predicts that efforts to spread moral values will prove costly and counter- productive. The second axis relates to what sort of actor should be privileged – states or individuals. It is common for theories of International Relations to privilege the state on the grounds that it is the principal actor in world affairs, the main source of order, and the bearer of international rights and responsibilities. An alternative perspective privileges individuals as the only irreducible actor. Individuals cannot be means to an end; they must be seen as ends in themselves. From these two axes, we derive four ethical positions. 1. Optimistic and state-centred: a rule-governed international society This accepts that progress in international affairs is possible, but that in a world characterised by radical difference the basis for progress should be voluntary cooperation between states in a rule-governed international society of states. Perspectives housed in this quadrant hold that the common good is best served by privileging the rules of co-existence found in the UN charter. This focuses especially on the legal ban on the use force and ensuring that the two exceptions to that ban are not abused (Articles 42 and 51). According to this view, allowing states a free hand to promote human protection in other states would create disorder by allowing wars to protect and impose one state’s values on others. Disorder would weaken the international system, undermine human development, and make cooperation between states more difficult. This view dovetails with the commonly held legal view that there is a general prohibition on interference except when authorised by the UN Security Council. This account is unnecessarily pessimistic about the capacity of states to reach consensus about shared moral principles. There is relatively little evidence to suggest that the incremental expansion of collective action into new areas of peace and security, such as human protection, has given rise to greater disorder. This account also overlooks the flexibility built into the Security Council to redefine its role in international 125 International Relations peace and security to take account of changing conditions, should it decide to do so. 2. Tragic and state-centred: the realities of life in an international state of nature This perspective espouses a communitarian view about the diversity of communities and the relativity of values, but rejects even basic claims about the capacity of states to agree meaningful rules of co-existence, let alone substantive rules. This account suggests that norms and rules are irrelevant as causes of behaviour when set against material factors such as economic gain, territory and the national interest. To paraphrase a prominent realist, Edward Hallett Carr, international interference for ‘protection’ would in fact be nothing other than the interests and preferences of the powerful masquerading as universal morality. This account counsels against humanitarian activism. It doubts the capacity of states to be altruistic and thus sees all state action as exercises in the self-interested use of power that undermines world order. Few, if any, states openly subscribe to this approach. Accepting that states tend to do only what they perceive to be in their interests does not get us very far analytically. To understand why states act in certain ways we need to understand variation in the way that states (even similar states) construct their interests and this requires a deeper understanding of the factors that guide national decision-making. 3. Optimistic and individual-centred: defending humanity and our common values The third perspective is the one most positively disposed to advancing human protection. It is usually associated with liberalism and a broader cosmopolitan view that all humans belong to a single world community. It holds that states have positive duties to protect foreigners from tyranny as well as a right to do so since human rights are universal rights that ought to be defended everywhere. According to theorists in this tradition, states have agreed certain minimum standards of behaviour. As such, action across borders to support human protection is not about imposing the will of a few powerful states but about protecting and enforcing basic values and/or the collective will of international society. While this view is on strong ground when it comes to the theoretical right of the UN Security Council to mandate enforcement action, when it comes to a more generalised right to intervention the theory is contradicted by strong bodies of legal thought and state practice that counsel against it. Not surprisingly, therefore, liberal cosmopolitans tend to be divided on whether there is such a general right of intervention outside the boundaries of existing international law.  Protecting People 126 4. Tragic and people-centred: the distinctiveness of humanitarian action These accounts tend to privilege traditional forms of humanitarian assistance and exhibit deep scepticism about military intervention on the grounds that it tends to make situations worse and reinforces the militarist ideals that are among the chief underlying causes of humanitarian crises in the first place. Precisely because of this scepticism, however, these accounts help to widen our understanding of the tools that might be used to protect populations. In exposing some of the intrinsic limitations of forcible action to promote human protection, these approaches emphasise that interventions are selective, partial and never solely humanitarian. That said, critics question how suffering can be alleviated let alone prevented without taking a political stance and so there are real limits to the physical protection that can be afforded by humanitarian action alone. This ‘individual-centred’ approach is vulnerable to many of the criticisms levelled against the ‘tragic’ conception. Notably, its prescriptions often fall well short of what is needed to protect vulnerable populations. Emerging norms of human protection Since the end of the Cold War, the practice of human protection has evolved through at least eight interconnected streams of norms, rules, practices and institutional developments. Each of these emerged to address the problem of civilian suffering, especially during war and will be addressed in turn. International humanitarian law International humanitarian law had its origins in the nineteenth century with the development of the US Government’s ‘General Orders No. 100’ (better known as the Lieber code), which were military laws designed to limit the conduct of soldiers – and the emergence of the Red Cross movement. After the Second World War, international humanitarian law was developed and codified in a series of international treaties. In 1948, the newly established UN General Assembly approved the Genocide Convention, which prohibited the crime of genocide and assigned all states a legal duty to prevent it and punish the perpetrators. The International Court of Justice (ICJ) was established as the judicial arm of the United Nations and is responsible for adjudicating on disputes between states and other legal matters. It judged that as a result of this convention, all states have a legal responsibility to do what they can, within existing law, to prevent genocide. The laws of war were further codified in the four Geneva Conventions (1949), two additional protocols (1977), and in a range of protocols covering the use 127 International Relations of Certain Conventional Weapons. Of particular importance was Common Article 3 of the 1949 Geneva Conventions, which committed parties to respect the human rights of all non-combatants; and the Convention on the Protection of Civilian Persons, which offered legal protection to non-combatants in occupied territories. The Geneva Protocols (1977) extended the legal protection afforded to non-combatants to situations of non-international armed conflict. They also insisted that armed attacks be strictly limited to military objectives and forbade attacks on non-combatants or their property. These principals provided the legal and moral foundation for subsequent campaigns for conventions banning weapons, such as landmines and cluster munitions, that were considered inherently indiscriminate. International humanitarian law has thus created a normative standard of civilian protection that not only prohibits attacks on non-combatants and restricts the use of certain weapons but also calls for the prevention of particular crimes, such as genocide, and the punishment of perpetrators. Protection of civilians The UN Security Council’s formal engagement with this theme dates back to 1998 when, at Canada’s request, it adopted a presidential statement calling for the Secretary-General to submit periodic reports on how the UN might improve the protection of civilians. Since then, it has held a series of open meetings on the protection of civilians, establishing it as one of its major thematic interests. In 1999, the Security Council unanimously adopted Resolution 1265 expressing its ‘willingness’ to consider ‘appropriate measures’ in response ‘to situations of armed conflict where civilians are being targeted or where humanitarian assistance to civilians is being deliberately obstructed’. In addition, the Security Council expressed its willingness to explore how peacekeeping mandates might be reframed to afford better protection to endangered civilians. In 2006, it adopted Resolution 1674, which built further on this progress by demanding that parties to armed conflict grant unfettered humanitarian access to civilians. As it has developed its thematic interest in the protection of civilians, the Security Council has also developed and strengthened its practices of protection. In doing so it has broken new ground. In Resolution 1973, passed in 2011, the Security Council authorised the use of force for human protection purposes in Libya. This was the first time in the history of the Security Council that such an action had been passed without the consent of the host state. Through this resolution, and the one that preceded it (Resolution 1970) the Security Council utilised the full range of the collective security powers granted to it by the UN Charter. Three years later, Resolution 2165 authorised the delivery of humanitarian assistance into Syria without the consent of the  Protecting People 128 Syrian government – the first time that the Council has done this. Hence, two very important issues of precedent were established, built on a new understanding of the need to protect civilians. Before the turn of this century, civilian protection was typically not considered a core part of peacekeeping. Starting in 1999 with the UN mission in Sierra Leone, the Security Council has invoked Chapter VII of the UN Charter with increasing regularity to authorise peacekeepers to use all means necessary to protect civilians. Chapter VII of the Charter gives the UN Security Council the authority to authorise whatever means it deems necessary, including the use of force, for the maintenance of international peace and security. By design, it was intended as a key deterrent to international aggression. Today, civilian protection and the authorisation of ‘all means necessary’ to that end are core aspects of UN peacekeeping and central to many of its new mandates. In the Democratic Republic of the Congo (DRC), the Security Council went even further by tasking a ‘Force Intervention Brigade’ to take the fight to non-state armed groups that were employing mass violence against civilians. Today, the bulk of the UN’s 120,000 peacekeepers are deployed with mandates to use all necessary means to protect civilians from harm. Addressing specific vulnerabilities Since the end of the Second World War, international society has periodically recognised groups that are exposed to particular vulnerabilities and has established mechanisms aimed at addressing or reducing those vulnerabilities. Of these, the best developed is the international refugee regime, which is governed by the 1951 Refugee Convention and subsequent 1967 Protocol. It is overseen by the UN High Commissioner for Refugees (UNHCR). This system grants people facing persecution the right to claim asylum and receive resettlement in third countries and mandates the UNHCR to ensure that refugees have access to protection and durable solutions to their displacement. During the 1990s, it became apparent that this system was unable to cope with a new displacement crisis – that of internal displacement. Internal displacement occurs when people are forced from their homes by mass violence and other ills but remain within their host country. As a largely domestic issue there was little appetite for an international convention governing the displaced. Instead, the UNHCR extended its mandate to cover the protection of all displaced persons and United Nations officials developed ‘guiding principles’ for their treatment. Another longstanding facet of mass violence that gained political prominence only in the 1990s was sexual and gender-based violence. The use of rape as a weapon of war in various cases pushed the UN Security Council to 129 International Relations establish the protection of women and girls as one of the principal elements of its ‘Women, Peace and Security’ agenda adopted in the year 2000 via Resolution 1325. Since then, the United Nations has created the post of Special Representative of the Secretary-General to give permanent focus to the issue, and has instituted a series of annual reports that identify where these crimes are committed and advocate for steps to be taken in response. The United Nations has also begun to ‘mainstream’ the protection of women and girls through, for example, the deployment of women’s protection advisers. Beyond the United Nations, the British government launched its Preventing Sexual Violence in Conflict Initiative which, amongst other things, has helped persuade two-thirds of the world’s states to support a ‘Declaration of Commitment to End Sexual Violence in Conflict’. These developments have been paralleled by a range of initiatives focused on protecting children in armed conflict. Also led by the Security Council, the United Nations has appointed a Special Representative for the protection of children, which reports on the unique protection challenges facing children and related issues such as the recruitment of child soldiers. In 2014, the UN’s ambassador for the promotion of education, former UK prime minister Gordon Brown, launched a global initiative to establish a contingency fund to support the provision of education to children during humanitarian crises, be they caused by natural disasters or mass violence. Human rights While human rights as a whole are subject to a great deal of questioning, their higher profile has undoubtedly made an important contribution to human protection. Two aspects in particular stand out, but they are illustrative rather than definitive since the overlap is extensive and complex. First, emerging principles and practices of peer-to-peer review, where states evaluate and comment on each other’s performance (mainly through the compulsory review process of the UN’s Human Rights Council), create expectations about the type of steps that states ought to take in order to protect their populations from various forms of abuse, including mass violence. While the most intransigent states remain largely unmoved, there is increasing evidence that peer review activities are influencing many states and pushing them towards greater compliance with their human rights obligations due to the pressure that being ‘watched’ places on them. Second, over the past two decades, international society has made increasing use of permanent and ad hoc arrangements for human rights monitoring and reporting in its decision- making on mass violence. Through a variety of different mechanisms, such as independent commissions and inquiries, special rapporteurs and fact-finding missions, international society is increasingly utilising human rights mechanisms to monitor and prevent mass violence. Most obviously, this reporting helps support decision-making on mass violence by furnishing key  Protecting People 130 institutions with reliable information. It also encourages states to respect human rights by raising international awareness of domestic human rights practices. International criminal justice The idea that some crimes are so serious that the prosecution of perpetrators should be universal has advanced significantly in the past two decades through the activities of the International Criminal Court and a series of special tribunals. These institutions have proliferated since the mid-1990s and contribute to individual perpetrators being held accountable for their actions. Proponents argue that by ending impunity such institutions help deter would- be perpetrators and also give some legal protection to the victims. The first tentative steps were taken in the mid-1990s when the Security Council established tribunals to prosecute the perpetrators of grave crimes in Bosnia and Rwanda. The Rome Statute establishing the International Criminal Court in 1998 held that the Court’s jurisdiction could be invoked when a state party proved unwilling or unable to investigate evidence pointing to the commission of widespread and systematic war crimes, crimes against humanity and genocide. The Court’s prosecutor can initiate proceedings in cases where he or she is able to persuade a panel of judges that a case fell under the Court’s jurisdiction, where a complaint was made by a signatory state, or when a case was referred to the prosecutor by the Security Council. To date, the Court has indicted 39 individuals and counts 124 states as members – though importantly the United States, Russia and China have yet to join. While it is important to state that developments like the International Criminal Court are still embryonic, the evidence suggests that transitional justice measures make reoccurrence less likely and improve general human rights within states. It also has a deterrent effect that spills over into other countries, including those that are not (yet) members of the International Criminal Court. Humanitarian action The notion that civilians ought to receive humanitarian assistance in wartime dates back to the nineteenth century and was integral to the development of the humanitarian idea of providing lifesaving assistance to whomever needed it. Those rights and expectations were incorporated into international humanitarian law but their applicability gradually expanded during the 1990s. The UN Security Council began authorising peacekeeping missions to support the delivery of humanitarian aid and, in the cases of Somalia and Bosnia, authorised the use of force to achieve this end. Since then, the Security Council has regularly authorised force for these purposes. What is more, however, in successive resolutions on the protection of civilians and in 131 International Relations substantive resolutions on crises, the Security Council has demanded that parties to armed conflict grant unfettered access to humanitarian agencies. Regional initiatives The foundations for Europe’s engagement with civilian protection were laid in the 1970s with the Helsinki Accords. Over time, these provided the basis for a Conference on Security and Cooperation in Europe mechanism that by the 1990s incorporated specific references to protection issues, including the protection of children and protection against torture. When this was transformed into the Organisation for Security and Cooperation in Europe in 1995, it was given additional responsibility and capacities to protect human rights including the post of High Commissioner for National Minorities. As part of its common foreign and security policy the European Union also started to develop a civilian protection role, exemplified by the French-led multinational force in the Democratic Republic of the Congo in 2003 and a range of other operations. The African Union has established a comprehensive regional system for crisis management and response that includes a specific focus on the protection of civilians from mass violence. Article 4(h) of the Union’s Constitutive Act enshrines its right to intervene in the affairs of its member states in issues relating to genocide and mass atrocities. Although this article has not been formally acted upon, owing to African leaders’ continuing commitment to sovereignty, the African Union’s peacekeeping operation in Darfur included a civilian protection mandate and its missions in Mali, the Central African Republic and Somalia have also supported civilian protection. In Latin America, states have established a comprehensive regional human rights mechanism. Even the Southeast Asian region, which is formally committed to the principle of non-interference in the domestic affairs of states, has begun to develop its own mechanisms for promoting human rights and protection through the ASEAN Intergovernmental Commission on Human Rights. These mechanisms might not understand or pursue ‘rights’ in precisely the same fashion, but they do rest on a shared understanding of atrocity crimes as grave human wrongs and a commitment to the prevention of these crimes. Responsibility to Protect In late 2005, world leaders unanimously adopted the Responsibility to Protect (R2P) in paragraphs 138–140 of the UN World Summit Outcome Document. This commitment was subsequently reaffirmed by both the UN Security Council and the UN General Assembly, which also committed to ongoing consideration of its implementation. The Responsibility to Protect rests on  Protecting People 132 three pillars. The first is the responsibility of each state to use appropriate and necessary means to protect its own populations from genocide, war crimes, ethnic cleansing and crimes against humanity (hereafter referred to collectively as ‘atrocity crimes’). The second pillar refers to the commitment of the international community to encourage and help states exercise this responsibility. The third pillar refers to the international responsibility to respond through the United Nations in a timely and decisive manner when national authorities are manifestly failing to protect their populations from the four atrocity crimes. The principle was initially considered to be controversial, as it countenanced the potential use of force and other transgressions of sovereignty. Over time, however, international consensus on the principle has widened and deepened. More tellingly, the Responsibility to Protect has become part of the working language that frames international engagement with political crises and the Security Council has referred to it in more than forty resolutions. It has reminded governments of their protection responsibilities (e.g. Resolution 2014 on Yemen); demanded active steps to protect civilians (e.g. Resolution 2139 on Syria); tasked peacekeepers with assisting governments to protect their own populations (e.g. Resolution 2085 on Mali) and demanded that perpetrators of mass violence be held legally accountable (e.g. Resolution 2211 on the Democratic Republic of the Congo). The Security Council has also connected its work on the Responsibility to Protect with its international efforts focused on preventive diplomacy and conflict prevention through such measures as the control of small arms and light weapons, the prevention of genocide, counter-terrorism and international policing. With this changing focus, debate amongst states turned to focus less on the principle of the Responsibility to Protect and more on its implementation. Problems and challenges The world is more likely to respond to human protection crises today than it once was, but as Syria shows we are nowhere close to solving the problem of human insecurity. Even when the normative and political context allows for it, the effective protection of populations from atrocity crimes confronts significant practical challenges. It is important to be upfront about what these challenges are. The first point is to recognise that there are significant limits to what outsiders can do to protect people in foreign countries. Many internal conflicts are not readily susceptible to outside mediation as they are so complex and fraught with danger that they can defy easy resolution. Concerted international action can sometimes protect populations or prevent mass atrocities, but the primary 133 International Relations determinants of violence or peace typically rest within the country itself and the disposition of its leaders. From the United Nations’ perspective, this problem is compounded by the fact that it tends to be confronted only by the world’s most difficult cases. Situations usually reach the UN Security Council only when others have tried, and failed, to resolve them. As a rule of thumb, where conflicts have an easy remedy, solutions tend to be found at the local, national or regional level. The world body tends to assume the lead only on those crises for which others have found no solution. In such circumstances, a modest success rate might partly reflect the sheer difficulty of the cases presented to the United Nations system. A second challenge is that human protection operates in a world of finite global capacity and competes with other cherished norms and values for attention and resources. This problem of limited resources is compounded by a climate of financial austerity arising out of the 2008 global financial crisis. Many major donors have cut their own national budgets and have imposed austerity measures on their own populations, putting pressure on their support for the protection of people in other countries. The harsh reality, therefore, is that in the near-term, the cause of human protection will not be able to call upon significant new resources. A third challenge is to recognise that the pursuit of human protection is politically sensitive. Human protection is both enabled and constrained by politics and can generate acute controversies and disputes by, for instance, requiring that some states be identified as being at risk of a crisis and demanding actions that some governments might object to. Often, even long- term preventive measures entail a significant degree of intrusion into the domestic affairs of states, which is not likely to be always welcome. States jealously guard their sovereignty and are sensitive to perceived incursions on their rights or criticisms of their conduct or domestic conditions. As such, they rarely invite assistance or look kindly upon external efforts to prevent atrocities within their jurisdiction. It is important to remember that the United Nations’ activities are overseen by political (as opposed to judicial) organs comprised of sovereignty-wielding member states. One facet of the problem is that states sometimes judge that their own interests are best served by not preventing atrocity crimes. This can be seen over a wide range of cases, but perhaps none have been as striking as the Syrian example, where from 2011 the Security Council failed to act decisively as hundreds of thousands were killed and millions displaced. Historically, the United Nations has struggled to assert its primacy in such situations where the interests of powerful states, especially permanent members of the Security Council, are engaged with competing aims.  Protecting People 134 Another facet of the problem of ‘political will’ is that states are self-interested actors that prioritise the wellbeing of their own citizens. As such, they are generally reluctant to commit extensive resources to prevent atrocity crimes in other countries. The issue here is not whether governments support atrocity prevention as a goal, but the depth of their support relative to their other goals – including cherished domestic objectives such as healthcare and social welfare. Political and diplomatic capital is also a finite resource. Sometimes, states may judge that trade-offs have to be made to achieve the greatest good or least harm overall. For example, at the outset of the crisis in Darfur in 2003, several states decided not to press the government of Sudan too hard, fearing that this might jeopardise negotiations to end the government’s war with rebels in the south – who eventually seceded and founded their own state in 2011 with the creation of South Sudan. Conclusion Whichever position one holds on the virtue and practicality of international action to protect humans from imminent peril, it is indisputable that the past few decades have seen a proliferation of mechanisms, institutions and practices aimed at improving protection. This has gone hand in hand with a global decline in both armed conflict and mass atrocities. Through at least eight distinct but connected streams of practice, we have seen the codification of norms of acceptable behaviour, the establishment of responsibilities for third party states and international institutions, and the emergence of a range of practices aimed towards the protection of vulnerable populations. As a result, mass violence today is typically met with complex – if not always entirely effective – responses from a range of different types of actors. Nevertheless, international practices of protection have improved markedly over the past few decades, contributing to an overall decline in both the incidence and lethality of atrocity crimes. The most important point is that this all remains unfinished business. Not only are there a number of political issues left to address, we have barely begun to scratch the surface of the practical issues connected to implementation. Questions of which strategies offer most protection in what kinds of circumstances will need to be addressed if the promise of protecting people globally is to be turned into a lasting reality. 163 International Relations 15 The Environment R AU L PAC H E C O-V EGA Today, our planet carries over seven billion people. Yet its capacity to provide for each one of these individuals is threatened by population growth, climate change, deforestation, collapse of fisheries, desertification, air pollution and scarcity of fresh water. The full extent of our shared global environmental problems goes far beyond the well-publicised challenge of global climate change (or global warming). In fact, one of the elements often forgotten is the complicated relationship between human beings and their environment. In the early years of the conversation around environmental protection, some argued that the planet’s resources were there for our collective consumption. However, there are limits to growth and this raises a range of important issues for international relations. Our population quadrupled between 1900 and 2000. This growth, coupled with abrupt climate change events and further compounded by rapid industrialisation and fast urban expansion, have combined into a perfect storm of negative environmental processes that put pressure on the capacity of Planet Earth to sustain life. As students of IR, we ought to recognise that the environment is one of the areas where much work remains to be done, particularly because cooperative approaches to environmental protection have had a very mixed record despite the grave implications of failure. The relationship between international relations and environmental problems It is often hard to assess whether international cooperation efforts have had any real effect on society’s wellbeing, the quality of our environment, or even the construction of long-term relationships between states. One form of evaluation takes place through the study of environmentally focused ‘megaconferences’. These large-scale events bring together representatives of national governments, intergovernmental secretariats, non-governmental organisations, academics and industry actors to engage in conversations  The Environment 164 about the state of the environment. They usually focus on a particular issue at hand. What makes these megaconferences interesting is that their goal is to engage in productive collaborative efforts to reach agreement and consensus on specific strategies to protect the environment and solve global challenges. Historically, the two environmental issues that have gained the most attention have been climate change and biodiversity. Both of these issues came up at the Earth Summit in Rio de Janeiro in 1992 – formally called the United Nations Conference on Environment and Development. Nevertheless, most scholars will recall the 1972 United Nations Stockholm Conference on the Human Environment as the first large-scale environmentally focused megaconference. The Stockholm Conference was also the starting point for the first global coordination mechanism for environmental protection, the United Nations Environment Programme (UNEP). This conference was also the first one where participants explicitly linked human health with environmental and ecosystem health in their discourses. The second milestone in global environmental governance is the publication of the Brundtland Report in 1987. This report outlined the need for a new model for development that brought into play the notion that we cannot simply use (and misuse) the resources we have at our disposal. The new model, coined sustainable development, became an enduring part of the global conversation about environmental protection. The Brundtland Report defines sustainable development as having three main components: economic, environmental and social – an idea that was then put forward for implementation at the Earth Summit. The third milestone was the 1992 Earth Summit. A major outcome of this meeting was the recognition of two of the most important environmental issues – the loss of biodiversity and rapid climatic change – and the need for intergovernmental secretariats and agreements to respond to these twin challenges. The bulk of the world’s states, 161, signed a declaration on the need for a model of global development that enabled future generations to live within their means but also facilitated current generations’ livelihoods. The fact that so many states reached an agreement on the concept of sustainable development, and the need to operationalise it, became the key contribution of the Earth Summit. Activist involvement became the norm in international conferences on environmental issues starting with the Rio Summit. Non- governmental organisations were considered part of the negotiations from the very beginning and over 2,000 non-governmental representatives attended. The fourth milestone was the 2002 Johannesburg World Summit on Sustainable Development. The goal was to establish collaborative 165 International Relations intergovernmental, cross-disciplinary and cross-sectoral partnerships. In theory, this would strengthen the way in which environmental activists interact and partner with national governments. Different types of partnerships were elucidated and non-state actors were considered from the design stage up to implementation. However, following the summit there was a widespread perception that there had been very little progress on the implementation side, leading to a feeling of megaconference fatigue. To remedy this, the 2012 UN Conference on Sustainable Development (also known as Rio+20) created mechanisms for follow-up of commitments to sustainable development. It also highlighted the relevance of specific targets for development and the need for transition towards broader-reaching sustainable development goals. Moreover, the outcome document of this conference defines specific regional initiatives towards the implementation of sustainable development. The 2015 Paris Agreement represented consensus among a number of countries that something needed to be done to maintain the level of global warming below two degrees centigrade. The fact that an agreement was reached was groundbreaking for the global climate negotiations community. Prior negotiations were marked by disagreements and lack of consensus on a strategy to compel nations to reach internationally agreed targets in their carbon emissions. This is important as carbon dioxide, released primarily by burning fossil fuels such as oil, natural gas and coal for energy, is the main cause of global warming. Nevertheless, Paris showed that many countries were able to agree on specific goals, targets and policies needed to combat rapid and impactful global environmental change. The process it established is yet to be fully realised, but in the years to come the expectation is that states will comply. Climate change isn’t the only ecological issue facing our planet. But its role in catalysing global action to protect the environment cannot be overstated. One of the most neglected issues is water. While the earth is two-thirds covered by water, the proportion that is fresh (drinkable and useable for agriculture) is sometimes highly contested by neighbouring states and in short supply for growing populations. When added to the effects of climate change, access to water is an issue of real concern. While many other challenges remain in the areas of climate and environment, it is likely that a framework for global water governance will be a major issue on the agenda in the near future. Common pool resource theory With a brief history of megaconferences now complete, we can move on to discussing the substance of the debates on climate and the environment. The notion of public goods comes from the original definition of a good that is non-  The Environment 166 excludable and non-rivalrous. Think of it as something that anyone can access at any point in time without making it any less available for anyone else to consume. The best exampl