Human Security and the Law of States

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Human Security and the Law of States

S NEIL MACFARLANE

INTRODUCTION

A NOVEMBER 2005 issue of the International Herald Tribune carried an op-ed piece by former Speaker of the US House of Representatives Newt Gingrich and former Senator George Mitchell, the chairmen of a US task force on American interests and United Nations reform.¹ The piece contained a set of observations that are worth quoting at length:

Our task force called on the US government and the UN to ‘affirm that every sovereign government has a “responsibility to protect” its citizens and those within its jurisdiction from genocide, mass killing, and massive and sustained human rights violations.’ World leaders endorsed this general principle, which is a very significant step in light of past international resistance to any provision that would seem to endorse interference in a state’s ‘sovereign internal affairs.’ It is critical that this principle be understood broadly to encompass mass killings and massive and sustained human rights violations, whether or not they meet technical legal standards for genocide … In certain circumstances, a government’s abnegation of its responsibilities to protect is so severe that the failure of the Security Council to act must not be used as an excuse for the world to stand by as atrocities continue.²

For students of international politics, this is a surprising remark, given its provenance. The United States is not known for the argument that sovereignty is derogable on the basis of human rights concerns. Resistance to this notion is particularly strong on the Republican right, of which Gingrich is a prominent member.

Their discussion of the ‘responsibility to protect’ points to an element of the relationship between security and rights that tends to be underplayed in the current context of the war on terror. Current discussion focuses largely on the extent to which security concerns might (or might not) justify the infringement of generally recognised individual civil and political rights (from the violation of judicial rights associated with indefinite detention or extraordinary rendition to the limitation on the right to free speech apparent in the prospective UK prohibition on ‘glorifying terrorism’). The neglected dimension is that the evolution of the discourse on security may considerably enhance the capacity for international protection of the human rights of individuals and communities at risk from violence perpetrated or tolerated by their states within the territorial jurisdiction of those states. This evolution revolves around the concept of human security. In theory anyway, the ‘humanising’ of security, and its embedding in international agreements may have a considerable impact on the conceptualisation of state sovereignty in international law and on the rights of states with regard to sovereignty.

This chapter begins with an examination of the conventional meaning of security in traditional international relations theory and discourse on security, and then looks briefly at its relationship to state sovereignty and international norms on domestic jurisdiction. The next section concerns the emergence and meaning of the concept of human security and examines the somewhat ambiguous embedding of the concept in the activity of the international society, with a particular emphasis on the UN Security Council as an authoritative body in the regulation of security matters. The concluding section of the chapter picks up on several analytical and empirical problems with the concept of human security and analyses its implications for international society, notably the qualification of the sovereign rights of states inherent in the focus on the needs of individual human beings for security.

I. SECURITY

The concept of security is essentially contested. Security has something to do with the (relative) absence of threat to the core values of the referents of security. The landscape of threat might include, at a minimum:

• physical threats to the survival of the relevant entity;
  
• threats to welfare; and
  
• threats to identity (including values).

One issue that arises immediately is that all good things do not necessarily go together. Given scarce resources, investment in physical security may have a negative impact on welfare.³ Likewise, a focus on imminent external threat to survival may create threats to established rights, as is evident in the current ‘war on terror’. Much of the contestedness of security involves debates about which set of threats should take priority in security policy broadly defined.

Also, it is not immediately obvious whose security counts. Should we focus on humanity, the state, the group or the individual? Focusing on the security of the state may damage the security of individuals within it. Conversely, emphasising the security of individuals may make it difficult for states to respond optimally to internal and external threats. Ensuring the security of, say, territorially defined ethnic groups within states may imperil the security of the states. On the other hand, a state’s pursuit of national cohesion on security grounds may threaten the identity of groups within it. The pursuit of security by a group within a state may make it difficult for individuals to secure their personal rights where their priorities do not coincide with those of their group; emphasising the rights of individuals may imperil the existence of defined groups within a state.

Traditional international relations analysis of security has focused on externally originating military threats to states.⁴ The emphasis has been on national security (the security of sovereign states from the threat of aggression) and international security (the minimisation of interstate violence). This focus is evident in the UN Charter. Although the Charter does not define threats to international peace and security, the relevant Articles (1.1, 2.4 and 39) stress external aggression.

The Charter also makes clear that the rights of states trump those of individuals within them. Although the Charter takes account of human rights (see the Preamble and also Articles 62 and 68 concerning the Economic and Social Council (ECOSOC)) and commits member states to co-operation in their promotion,⁵ these have not been obviously binding with regard to the behaviour of member states.

In contrast, Article 2.1 of the Charter strongly embraces the principle of equal sovereignty of states. This was linked closely to a principle of non-intervention, both by states (Article 2.4) and by the UN itself (Article 2.7). The principle of non-intervention was further embedded in declarations of the General Assembly in the 1960s and 1970s, notably those on intervention⁶ and friendly relations.⁷ The inclusion of these principles in the Charter reflects a long tradition of customary and treaty law in regard to sovereignty and non-intervention, dating back at least to the Peace of Westphalia (1648).⁸ Historically, states have been the principal subjects in international public law; individual human beings or groups of human beings have had few international rights.⁹

The (Western) normative logic of the primacy accorded to the state in consideration of security is clear in both absolutist and liberal constitutional theory. In the first (eg, Hobbes), individuals trade their individual sovereignty upwards in return for the protection without which normal life cannot proceed. In liberal constitutionalist theory (eg, Locke), the people choose the character of their state and government, and, consequently, they have obligations to the state. In both instances, the security concerns of individuals are bundled together into the state collectivity. The other side of the bargain is that states provide for the primary security needs of their citizens. As Aristotle pointed out, the polis exists first that men should live and then that they should live well.¹⁰

These normative traditions concerning sovereignty presume that states protect their citizens, further the welfare of citizens and defend citizens’ values. To the extent that this is so, it does not make sense to question the sovereignty of states over the affairs of their citizens. And, as the history of the European wars of religion suggests, to act differently could destabilise the pluralist system of international relations while causing incalculable suffering to human beings. For this reason, it has made sense in discourse on security to subordinate the concerns of individuals to those of states. If states could not secure themselves, then individuals within them could not be secure.

This view of the state and its relationship to the security of its citizens is evident in the paucity of international law and practice dealing with individual rights in the period up to 1945. It was also reasonably clear in the activities of the UN Security Council during the Cold War. The Council occupied itself little with the rights of individuals during the first 40 years of its existence.¹¹ For that matter, it largely ignored events—including wars—within states. The UN rarely intervened in internal conflicts on the basis of Security Council decisions. When it did so, it was largely on the basis of consent by the parties. And such interventions did not involve substantial activity directed at the personal security of civilians in harm’s way. This remained true, by and large, through to the end of the Cold War. Massive killings of civilians in civil conflicts, such as those in Nigeria and Bangladesh, and mass murder, as in Kampuchea (now Cambodia), produced little by way of international reaction.¹²

Several aspects of the international history of the twentieth century have drawn these more or less settled understandings of the relationship between the state and the citizen into question:

• The industrialisation of war made it possible to mobilise ever greater numbers of people into the armed forces. It also greatly increased the lethality of weapons systems. Conscription made military service an obligation for a large portion of the (male) population. The result was rapid growth in the number of citizen casualties in war.
  
• Technological change (long-range artillery and then the strategic bomber) permitted the application of force well behind the lines upon which armies faced each other. This contributed to a rapid increase in the numbers of civilian casualties in war. The advent of nuclear weapons and the absence of effective means to defend against strategic missiles made it implausible that, in extremis, the major powers could actually protect their people. Indeed, the central strategic principle of Cold War stability (mutual assured destruction) presumed that they could not and that they should not attempt to develop the capabilities to do so.
  
• Over the twentieth century, the proportion of civilians as opposed to soldiers killed in war evolved from one to eight to ten to one. In 2003 the EU noted that 4 million people had died in war since 1990, 90 per cent of them civilians.¹³
  
• During the twentieth century, more civilians were killed, directly (as in Stalin’s purges) or indirectly (as in Mao’s Great Leap Forward), by their own governments than were killed in war during the same period. In short, there has been ample evidence that the state, far from being a solution to the security demands of its citizens, may wilfully be a major threat to their security.
  
• Decolonisation and the collapse of communism produced large numbers of new states that lacked the capacity to exercise effective sovereignty over their territories and those living within them.¹⁴ The state’s ability to fulfil its role in contractarian theory is therefore now seriously in question.

These last points raised two significant questions. First, if a state massively violates the rights of its own people, or if it will not or cannot protect them, what is the normative basis of the state’s claim to the rights associated with sovereignty in international society?¹⁵ Second, if not the state, then who or what has the responsibility to protect human beings at risk? Serious consideration of these questions was prevented during the Cold War period by the systemic competition between the superpowers. The end of that competition in the late 1980s was a significant permissive condition for the emergence of an alternative discourse on security.

II. HUMAN SECURITY

The alternative discourse that has emerged since the end of the Cold War focuses on human security. Whereas traditional international relations analysis of security focused on military threats to states, human security has expanded the discussion on vertical and horizontal axes. On the vertical one, it has extended the referent of security downward from states to individual human beings. Moreover, human security has extended the substance of security horizontally outwards from its focus on military affairs to embrace other issues, including criminality, the defence of human rights, economic threats, environmental threats and threats to health.¹⁶

There is substantial disagreement over how broad the category of threats covered under the concept of human security should be.¹⁷ Two general clusters have emerged. One embraces a narrow conception of human security, focusing on violent threats to the survival and integrity of the physical persons.¹⁸ The other takes a much broader and multi-dimensional view of threats to human beings, going well beyond violence.¹⁹ Proponents of this latter, broader view of human security point out that physical violence is far from the most significant threat to the survival and welfare of human beings. Fatalities from violence are dwarfed by those, for example, from disease and from famine.

In another chapter in this volume, Liora Lazarus challenges the amalgamation of specific rights with reasonably clear meaning into an amorphous concept of the right to security. In her view, to move in that direction risks diluting the protections afforded to human beings. The proponents of a narrow view of human security offer an analogous argument: the broader the parameters of security and the fuzzier the boundaries, the less useful the concept of security is as an analytical and policy concept. In contrast, an understanding of security that emphasises freedom from the threat of physical violence avoids the diffusion of attention and of policy that is arguably implicit in broader conceptions. In addition, rolling concepts such as human development and basic rights into an overarching category of human security risks diverting attention and policy focus from those aspirations.

Underlying this conceptual disagreement over the purview of human security is a competition for resources. The word ‘security’ carries a political and value content that privileges it in resource allocation. It is one thing to say that a policy is a matter of group interest or political preference and quite another to say that it is a matter of security. Appropriating the word, consequently, may enhance access to scarce resources. It is not surprising, therefore, that it is in the development community that the economic dimension of security is emphasised, in the health community that disease is highlighted, and so on.

Human security concerns have been translated into numerous normative and legal developments. The acceleration of norm-setting regarding human security issues falls into three categories. In the first, we find a growing number of state treaty commitments regarding the security of civilians, both in conflict and in non-conflict situations. One example is the 1997 treaty banning the deployment, trade and production of anti-personnel landmines;²⁰ another is the protocol on the recruitment of children into national armed forces;²¹ and a third is the earlier International Convention on Torture.²²

The second category of norm-setting involves recognition by states of the international accountability of individual agents acting in the name of states. The Treaty of Rome, rooted in the Nuremberg precedent and growing out of the International Criminal Tribunals for Yugoslavia and Rwanda, established the International Criminal Court. It also made provision for the international prosecution of individuals accused of war crimes or crimes against humanity when their national authorities either will not or are incapable of adjudicating such cases. In all of these instances, international agreements have limited the discretion of states in the treatment of their own citizens, and the Rome treaty has expanded the jurisdiction of an international tribunal to include cases involving violations of human security.