Brazil’s Concept Note raised a substantial point that all public policy initiatives, including R2P, ought to consider – namely, the “unintended consequences” of any proposed course of action. The first premise to recog-nize is that neither traditional sovereignty nor R2P can be absolute. Tradi-tional interpretations of sovereignty include the state’s exclusive jurisdiction to govern its internal affairs without any outside interference.27 This notion of sovereignty stresses the “freedom of” and, like classical liberalism, can be seen as a type of “negative sovereignty.” It is based on the notion that states and the international community should not interfere in another state’s in-ternal affairs. Alas, in practice this has come to mean that, regardless of how poorly the state abuses its citizens, it must still not be interfered with.28 But, just as as in classical liberalism no one has the absolute right to shout “Fire!”
in a crowded theatre, so no state has an absolute right to shout “Hands off my internal affairs!” Both in international law and in practice, sovereignty has always had positivist connotations, dating back to its earliest formula-tions by Hugo Grotius and Emerich de Vattel.29 The very essence of sover-eignty, as defined by liberal philosophers Thomas Hobbes and John Locke, brings with it responsibility. Hobbes and Locke posited that the state must meet certain conditions in order to uphold the social contract with its citi-zens. Hobbes contended that state sovereignty was contingent on the state’s ability to keep the peace.30 If the state was unable to maintain peace, then the social contract would dissolve and the state would lose its sovereignty.
Locke argued that state sovereignty was contingent on the state upholding of people’s natural property rights, which included their rights to life,
lib-27 E. Mintz et al., Politics, Power and the Common Good: An Introduction to Political Science, 2nd ed., Toronto, Pearson Longman, 2009, p. 29.
28 R. Axtmann, “The State of the State: The Model of the Modern State and its Contemporary Transforma-tion,” International Political Science Review 25.3, 2004, p. 262.
29 P. Minkkinen, “The Ethos of Sovereignty: A Critical Appraisal,” Human Rights Review 8.2, March 2007, pp. 33-51.
30 T. Hobbes, “Leviathan”, in Political Philosophy: The Essential Texts, ed. by S. Cahn, New York, Oxford University Press, pp. 217-242.
erty, and property.31 This trusteeship arrangement, between the basic rights of citizens and the duty of the government to uphold these rights, con-stitutes the legitimacy on which a state’s sovereignty is, ultimately, based.
The trust between a state and its citizens is violated when a government uses its monopoly on the use of force to inflict harm on its own people. In such a case, the people have an inherent right to overthrow this tyrannical government (as reflected in 1581 Dutch Declaration of Abjuration and the 1776 US Declaration of Independence). Likewise, the UN Charter makes provision for state limitations in, for example, the principle of the self-determination of peoples.
The advance of recent concepts such as human security and humanitar-ian intervention, and most recently R2P, emphasizes the erstwhile positive aspect of sovereignty, namely the right of citizens to be protected by their government. Human security focuses on threats to individuals emanating from starvation, disease, poverty, and ecological problems, as the needs of individuals are recognized to be the primary concern of states.32 Human security accuses governments that attack their own citizens, as well as intra-state violence that threatens people with genocide, ethnic cleansing, war crimes, and crimes against humanity. Under this concept, a state has ob-ligations to protect and promote the general welfare of its people. At the 1998 Rome Conference, the then Canadian Minister of Foreign Affairs, Lloyd Axworthy, played a crucial role in galvanizing international support for the creation of the ICC.33 The ICC prosecutes individuals responsible for taking part in the aforementioned egregious crimes in their capacity as state employees. Former UN Secretary-General Kofi Annan argued that state sovereignty was “never meant as a license for governments to trample on human rights and human dignity.”34 Thus, we recognize in international
31 J. Locke, “Second Treatise of Government,” in Political Philosophy: The Essential Texts, ed. by S. Cahn, New York, Oxford University Press, pp. 246-273.
32 L. Axworthy, “Human Rights,” Vital Speeches of the Day 66.19, July 2000, pp. 578-580.
33 J. Goldstein et al., International Relations, 2nd ed., Toronto, Pearson Longman, 2008, p. 138.
34 B. Jentleson, “A Responsibility to Protect: The Defining Challenge for the Global Community,” Harvard International Review 28.4, 2007, p. 19.
relations both negative and positive aspects of sovereignty. R2P in general, but especially its first and second pillars, emphasizes both the responsibility of the state in question and the need of the international community to help such a government to fulfil its responsibility and live up to its positive sovereignty.35
When a state fails and when mass atrocity crimes are being committed or are imminent, the R2P concept allows eventually for third-party inter-vention. However, R2P-Pillar-3-enforcing states do not protect civilians in such cases by “whatever means it takes.” If protection of civilians is the ultimate goal, rather than territory or sovereignty, then the means used raise the stakes even higher than when lawful combatants are the subjects at stake. While the moral duty to protect innocent civilians is absolute in principle because of the absolute nature of human rights, and the legal right to this is becoming clearer under international law,36 its implementation can never be unfettered and, indeed, was not meant to be open-ended. It must be tempered by various prudential considerations. To be sure, the leaders behind the 2005 World Summit Outcome (WSO) and the authors of the International Commission preceding it on R2P were well aware of the need for careful and limited means. Repeatedly, they argue that all the legal restraints in both the law of war and the laws in war apply to R2P operations.37
Broadly speaking, five tests of R2P legitimacy have been defined and reiterated, going back to the initial work done on the subject by former UN Secretary-General Kofi Annan. These five are elsewhere called
precaution-35 United Nations, Implementing the Responsibility to Protect: Report of the Secretary-General, United Na-tions, General Assembly, 2009, http://www.un.org/ga/search/view_doc.asp?symbol=A/63/677 (accessed 17 June 2013).
36 H. Brollowski, “Chapter 7: The Responsibility to Protect and Common Article 1 of the 1949 Geneva Conventions and Obligations of Third States,” in Responsibility to Protect: From Principle to Practice, ed. by J.
Hoffman, Amsterdam, Amsterdam University Press, 2012, p. 103.
37 C. Junior, “Chapter 5: Implementing R2P: A Vision for How Military Force Might be Applied,” in Imple-menting the Responsibility to Protect: New Directions for International Peace and Security?, ed. by E. Hamann and R. Muggah, Brazil, Igarape Institute, March 2013, pp. 41-46.
ary principles.38 Though they are for the most part not mentioned in the WSO document, they are part of the legal and political debate of which the WSO is the product. They are intended to serve as rational guidelines for R2P operations.39
Firstly, there is a “right intention” to prevent mass-scale casualties from occurring and to revert or stop harm.40 Overthrowing a regime is not a legitimate objective of an R2P operation; however, when a regime is re-sponsible for attacking its own population, disabling that regime’s capacity to act may become essential to fulfilling R2P. Secondly, the seriousness of the risk must warrant coercive action to prevent MAC.41 Thirdly, force is used as a last resort when diplomatic and non-military means have proved inadequate. Fourthly, there is a proportionality principle in intervention, whereby the forces utilized are the minimum necessary to secure the overall objective in protecting human life. Lastly, there must be a balance of con-sequences, wherein recovery is attainable and the benefits of intervening outweigh the benefits of not intervening.
The fact that authors of the R2P norm have seriously thought about these five precautionary principles is not to say that this aspect of the con-cept cannot be improved. Paragraph 9 of the concon-cept note, submitted by Brazil in 2011, identifies some of the risks that may be associated with R2P Pillar 3 operations such as “aggravating existing conflicts,” giving rise to “new cycles of violence” and “increasing the vulnerabilities” of civilian populations.42
38 H. Denduangrudee, “Chapter 8: Problems and Prospects for R2P: The Unilateral Action of Viet Nam in 1978,” in Blood and Borders: The Responsibility to Protect and the Problem of the Kin-State, ed. by R. Thakur and V. Popovski, Tokyo, United Nations University Press, 2011, pp. 144-167.
39 G. Evans, “Interview with Alan Philips: Responsibility to Protect after Libya,” World Today 68.8, October 2012.
40 ICISS, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereign-ty, ICISS, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 17 June 2013).
41 H. Denduangrudee, “Chapter 8: Problems and Prospects for R2P: The Unilateral Action of Viet Nam in 1978,” in Blood and Borders: The Responsibility to Protect and the Problem of the Kin-State, ed. by R. Thakur and V. Popovski, Tokyo, United Nations University Press, 2011, pp. 144-167.
42 Permanent Representative of Brazil to the United Nations, Concept Paper on the Responsibility While Pro-tecting: Elements for the Development and Promotion of a Concept, United Nations, General Assembly,
Novem-We must keep in mind that both the five precautionary principles and the Brazilian contribution, with respect to the consequences of protecting, exist in a world in which information is usually incomplete and ambigu-ous, value conflicts are typical, and the estimated consequences of decision options are just that: estimates. In other words, both in the decision to in-tervene and in the parameters to limit interventions, decision-makers work in an environment of bounded rationality.43 Within the realm of bounded rationality, governments must provide themselves with safeguards, bench-marks and beacons to guide them on their way. The balance of estimated outcomes must indeed play its proper role in the question of how to for-mulate Pillar 3 R2P operations: how to define them, how to guide them, and how to end them.