Post a (200 word APA Format) explanation of how the cultural differences in the ethical norms and codes of conduct in your chosen countries might affect a public administrator’s perception of human rights within that country. Then, explain how both global

Discussion: International Perceptions of Human Rights

Following the atrocities of World War II, world leaders created a legally binding declaration that would act as the foundation of international human rights law. The Universal Declaration of Human Rights, drafted by committee members from several continents, represents “the universal recognition that basic rights and fundamental freedoms are inherent to all human beings . . . [w]hatever our nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status” (United Nations, n.d.-a, para. 2). The leaders recognized that these rights are “inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights” (United Nations, n.d.-a, para. 2). Although the United Nations declared these rights to apply to everyone, individuals from various cultures differ in terms of ethical norms, codes of conduct, and values. How do these cultural differences in ethical norms and codes of conduct affect public administrators’ perceptions of human rights?

For this Discussion, select two cultures within one country (e.g., Basques and Romani people of Spain).

Post a (200 word APA Format) explanation of how the cultural differences in the ethical norms and codes of conduct in your chosen countries might affect a public administrator’s perception of human rights within that country. Then, explain how both global governance structures and nongovernmental organizations might address these differences in ethical norms and values in order to improve human rights in that country.

http://www.un.org/en/universal-declaration-human-rights/index.html

http://plato.stanford.edu/archives/sum2013/entries/rights-human/

Support your postings and responses with specific references to the resources.

GLOBAL ETHICS AND HUMAN RIGHTS:
A REFLECTIONjore_473 204..222

Sumner B. Twiss

ABSTRACT

This paper examines the contributions that the international human
rights community can make to the definition and framing of a practically
effective global ethic, especially in light of ongoing concerns about social
and economic justice, environmental issues, and systematic abuses of
vulnerable populations. The principal argument is that the human rights
movement in all of its dimensions (moral, legal, political) provides the
pivotal foundation for a practicable global ethic now and for the foresee-
able future. Evidence for the truth of this claim is discerned in the
movement’s contemporary efforts to intersect explicitly with other areas
of international law and politics. Examples adduced include develop-
ments with respect to the rights of indigenous peoples, decision making
about the environment, and transitional justice.

KEY WORDS: global ethics, human rights, indigenous peoples, environ-
ment, transitional justice

1. Introduction

This past year I co-convened a working group on defining global
ethics under the auspices of a Geneva-based foundation called Globe-
thics.net.1 In this essay, I will first report the findings of this group and
then subsequently compare them to features of the modern human
rights movement. My own principal argument in emendation to the
report is that this movement already provides—and will continue to
provide—one of the pivotal foundations, if not the most pivotal, for a
practicable global ethic now and for the foreseeable future. I believe
that the human rights contribution to global ethics may be obscured by
a general lack of awareness about the history and development of the

1 My co-convenor was Gerhold K. Becker, and other members of the group included
Shanta Premawardhana, Kiarash Aramesh, Oscar Carvajal, Abhik Gupta, John Hooker,
John M. Itty, Eunice Kamaara, Thomas Kesselring, Yersu Kim, David W. Lutz, Richard
Ondji’I Toung, Jonathan Chan, Ingrid Shafer, and Ariane Hentsch Cisneros.

JRE 39.2:204–222. © 2011 Journal of Religious Ethics, Inc.

human rights movement itself, including some of its most recent
advances. I begin with the findings of the working group.2

2. Global Ethics

The use of the phrase “global ethics” has risen in popularity in the
last decade, to such an extent that there are growing numbers of
non-governmental organization (NGO) declarations as well as scholarly
and non-scholarly books and articles about the subject. At first blush,
the language of global ethics seems not only benign but indeed pro-
gressive with respect to identifying moral values and norms intended
to advance the welfare of human beings and their relations with other
entities on the planet—for example, social communities, other species,
ecosystems, and the like. Such language conjures up a holistic moral
vision of peace, harmonious relations, equity and justice, and sustain-
able living and development. At the same time, however, the phrase
also carries pejorative connotations for some people, not least because
it calls to mind the phenomena of globalization in the economic sense
associated with rampant capitalism, neo-liberal economics, and
Western economic hegemony that all appear to have little regard for
the developing world, their economies, and their social and environ-
mental well-being. From this latter perspective, “global ethics” con-
notes domination of the world by the powerful, homogenization under
a reigning moral and political paradigm, and a presumption against
moral, political, economic, and cultural diversity. So, the first problem
that faced the working group was the challenge of clarifying these
tensive nuances and then staking out a mediating position on the
meaning of the phrase.

From the group’s perspective, using the phrase “global ethics” helps
to identify a rather unique set of moral problems that either cut across
national boundaries or at least are shared by diverse peoples and
communities despite their different geographical locations—problems
that need to be addressed holistically and cooperatively if they are to
be solved pragmatically. In the first case—transboundary problems—it
seems clear, for example, that air pollution, climate imbalance, inter-
national crime, military conflict, and terrorism observe no national
boundaries and require systematic cooperative redress. In the second
case, many peoples and societies, despite their geographic and other

2 These findings were reported and discussed at Globethics.net’s Conference on Care
and Compassion: Sharing Values across Cultures and Religions, Nairobi, January 25–29,
2009. Although I drafted the group’s initial outline of findings, that outline itself was
modified by the discussion at the Nairobi conference, and it should be emphasized that
my brief report here is a synthesis of various participants’ original insights as nuanced
and amended by the Nairobi discussion.

Global Ethics and Human Rights 205

differences, suffer from, for example, poverty, starvation, malnutrition,
discrimination, oppression, decreasing biodiversity, and environmental
degradation—problems that also need systematic cooperative redress
especially with external aid from the developed world. Indeed, in both
types of problems, it appears that the ever intensifying interdepen-
dence of the world—economically, socially, ecologically—makes them of
such common human concern that they can only be resolved (or at least
mitigated) by a coordinated effort by the entire world population.

Although technically, economic globalization may be a recent phe-
nomenon, globalization in the broader sense of cultural interaction and
mutual influence in all sectors of human activity has been going on for
centuries, assisting in much human development across the world. In
this broader sense, cultures are permeable to and learn from one
another. Cultural and moral diversity is a fact and a positive asset
insofar as cultures can pool their ideas, resources, and strategies in
order to address common or shared problems. As is becoming clearer by
the day (as I write this), even economic globalization may not entail
complete economic hegemony by one part of the world over all the rest.
But dismantling hegemony (and aspirations to it) does require looking
at the common or shared problems from the perspective of those most
deleteriously affected—the people’s perspective rather than the big
power agents in the world (for example, state agents, transnational
corporations, first world nations).3 The wager of the people’s perspec-
tive is this: problems can be more accurately diagnosed from this point
of view and thus solutions better discerned in the long run. So there is
no gainsaying that the working group’s understanding of global ethics
has a built-in bias toward victims—for example, the suffering, the
starving, and the oppressed. And this bias has a further dimension: its
perspective suggests that the “haves” of the world (with greater power
and resources) bear greater causal responsibility for the world’s prob-
lems (effects of past imperialism and colonialism; environmental deg-
radation; and the like) and consequently have a greater moral
responsibility for their redress or alleviation. This corollary, so to
speak, is a matter of compensatory equity, or, for want of a better term,
natural justice or fairness. Let me be clear that from the working
group’s perspective, global ethics imbeds a normative moral vision
involving interdependence, solidarity, equity, and mutual cooperation
in addressing transboundary and common practical social issues.

One of the main points of morality—in a functional sense—is to
enable human cooperation in the solution of practical problems, and

3This notion of the people’s perspective is inspired by Richard Falk’s important
distinction between the perspective of globalization-from-below, in contrast to
globalization-from-above (Falk 1993).

206 Journal of Religious Ethics

one initial step toward developing a normative ethical strategy—of the
sort involved in developing a global ethic—is to ask: what do the
peoples of the world already share in terms of important moral values
and norms, even if contested in some of their specifics? In answer to
this question, the working group came up with the following set of
observations. All known human societies have analogous moral rules
regulating within the in-group such things as violence, sexual activity,
deception and truth-telling, theft, and dispute settlement. Sometimes
these rules are codified into laws and legal procedures, sometimes not,
but it seems hard to dispute that such rules are the socio-moral glue
that hold a society together and enable a modicum of cooperation in
socially responding to internal and external challenges. All known
moral traditions imbed some version of the Golden Rule (whether
positively or negatively formulated), the operation of which is based on
reciprocal thinking, empathy, enlightened self-interest, and some
notion of moral autonomy—which is used to facilitate cooperation not
only within their respective societies but also between members of
their societies and strangers. In the latter regard, many (if not all)
moral traditions also imbed notions of hospitality toward non-
threatening strangers. So there is a propensity in such traditions to
expand the morality of their societies beyond simply the in-group—this
is a propensity, not a hard and fast rule. We also regularly encounter
both within and across societies and traditions—especially in this
world of telecommunications—fundamentally similar moral responses
(emotions) of indignation or resentment at perceived unjust treatment
of non-proximate others and of empathy, sympathy, or compassion for
such others when they are treated badly or are suffering (as we
ourselves would like not to suffer or be so treated). There is in fact a
rough cross-cultural consensus on basic human rights norms bearing
on physical and civil security, socio-economic necessities for human
survival and flourishing, and the importance of special protections for
vulnerable persons and populations (for instance, children, women, the
elderly, minority ethnic groups). Indeed, the world community accepts
as ius cogens (preemptory) norms the prohibitions of genocide, slavery,
apartheid, torture, and grossly unfair criminal law practices, among
others. This is not to say that some human rights norms (other than
ius cogens) cannot conflict in certain situations, nor is it to say that all
such norms are interpreted in precisely the same manner. But it is to
say that there is a broad consensus or normative agreement on many
human rights—one need only to ask the oppressed and suffering to see
that this is so. Speaking practically therefore we have much to work
with in developing a global ethic.

Since some might regard the preceding observations as constituting
an unstable empirically based consensus, the working group pressed

Global Ethics and Human Rights 207

further to ask whether there might be any deeper (normative) justifi-
cations for this consensus. We identified a number of lines of possible
argument.4 For example: Many believe that a notion of intrinsic or
inherent human dignity and inviolability grounds the consensus. Some
propose that a notion of universalizability or generalizability implicit
in the concept of morality itself serves as a test or indication of what
is properly ethical or not. Yet others argue that the concept or principle
of equal respect for persons is presupposed by any sincere human
communication and deliberation about cooperative problem solving;
that is, practical and reasonable discourse assumes such respect. Still
others propose that the Golden Rule can be exegeted in such a way as
not only to be implicit in human reasoning but also to demonstrably
ground other norms such as equality, fairness, solidarity, and human
rights. Yet others argue that many important moral norms may, upon
reflection, be intuitively recognized as moral truths by any psychologi-
cally sound person. Additionally, some argue that the very notion of a
distinctively human life requires the development of certain capabili-
ties of, for example, bodily health and integrity, imagination and
thought, emotional attachment, affiliation, and control over one’s envi-
ronment, that themselves entail threshold moral norms regarding
these matters. And, finally, intermingled with, or independent of these
appeals, there are the metaphysical or ontological commitments of
various religious and philosophical world views that ground important
moral norms of the sort we have identified.

Not surprisingly, the working group reached no agreement on how
to argue this “meta-case.” However, all accepted the specifics of the
first-level consensus above—that is, the observations about shared
moral norms—and were committed to working on the second or
meta-level with the expectation that whatever emerges will not
undermine that consensus but rather deepen and extend it to help
solve common practical problems. The reasons for lack of agreement
about the meta-case varied considerably, ranging across skepticism
about all universalist justifications as question-begging (essentia-
list claims, a suspect foundationalist epistemology, and the like);5

worries about deflecting attention away from local cultural inter-
pretations of norms; a sense that any global synthesis of moral
values is better understood as aspirational rather than accomplished;
and even a concern that the very attempts at deeper justifications

4 Certain lines of these arguments are illuminatingly discussed in, for example, Kim
1999; Enderle 2008; and Morsink 2009.

5 There is, of course, considerable literature now challenging the bases for universal-
ist moral positions; see, for example, Chan 2002 and Stout 2004. My own view tilts
toward a minimal natural law view combined with moral intuitionism.

208 Journal of Religious Ethics

are themselves simply diversions from the primary importance of
real-world practical problem solving. What I might at this point add
to the working group’s meta-reflections is this observation: the
apparent empirical consensus on practical moral norms appears
explicitly supported by diverse lines of justification that converge on
these norms. So, one might regard these diverse justifications as
functioning in a complementary manner to provide a coordinated set
of meta-arguments—that is, one large multi-faceted justification
imbedding multiple supports or grounds for the consensus. At the
very least, this observation might help explain the working group’s
own sense of optimism that whatever happens at the meta-level will
not undermine the consensus.

Taking into account these normative reflections and the fact that
the practical problems identified earlier clearly thwart a good and
flourishing life for all—both humanly and environmentally, and for
present and future generations—the working group proposed the fol-
lowing reasonable parameters for any global ethic worth its salt.
First, the normative goal of a good life for all must include minimal
material requirements regarding, for instance, nutrition, shelter, edu-
cation, physical security, employment with decent wages, appropriate
levels of health care, and a social security net of some sort. Second,
national civil environments must secure respect for life, liberty, equal-
ity, justice, equal access to opportunities for self-development, and
political participation in all decision making that bears on the com-
monweal. And third, an international civil environment must be fos-
tered that aims at economic equity among nations, their equal access
to the global commons, and their active cooperation in combating
shared problems that threaten not only the peace of the world but
also environmental well-being now and in the future. Implicit in these
parameters are normative ideas that include as a species we ought to
live in solidarity; strive for constructing and sustaining authentic
communities that coordinate and balance individuality and sociality
(self-realization and the common good); develop and maintain a sense
of interdependence where all of us bear responsibility for all; develop
practices of participatory decision making built on relational under-
standings of the person and social and natural environments; view
social, economic, and environmental problems as ecologically or holis-
tically interrelated; resist and rectify by peaceful means political
domination by the few at the expense of all others; and recognize
that, due to past inequities and present power disparities, some soci-
eties have a particular responsibility to assist others in redressing
ongoing problems.

In effect, then, the working group took the position that a global
ethic must provide an inclusive approach to address and redress

Global Ethics and Human Rights 209

transboundary and endemic practical problems that builds upon
common moral values and principles grounded in a moral vision of
human dignity, personal and social responsibility, and justice. There
are, we believe, already certain important angles of orientation and
commitment in the contemporary world that assist in meeting these
challenges—for example, the Universal Declaration of Human Rights
(1948) and subsequent declarations, conventions, and regulations; the
Stockholm Declaration on the Human Environment (1972) and subse-
quent environmental declarations, conventions, and regulations. These
types of development enjoy significant international consensus, though
they need to be supplemented by the effective development of both
individual conscience and socio-cultural ethos expressing and sustain-
ing a sense of active moral responsibility in both the short and long
term for survival, well-being, and flourishing in both the present
and future. The working group proposed that such responsibility can
be most effectively developed and maintained through practical
dialogues—at local, national, regional, and international levels—
focusing on urgent transboundary problems and involving representa-
tives of the pertinent multiple stakeholders in the deliberation and
resolution of these problems.

Having articulated the moral vision of global ethics agreed upon by
the entire working group, I now want to speak only for myself about
a certain degree of myopia in this vision, especially with respect to
the issue of practicability and working within the ongoing achieve-
ments of the human rights movement in the past six decades. Despite
the fact that the group referenced the international consensus on
human rights, I believe that I would not be far wrong in saying that
some members of the group were suspicious of the human rights
regime and failed to appreciate that projecting a global ethic comes
close to trying to reinvent the wheel of human rights norms, codifi-
cation, and regulations rather than simply enlarging and making
more effective a conveyance that already exists. I also suspect that
some—both within and outside the working group—regard global
ethics as a moral revolution that is best developed afresh with con-
cepts perceived to be different than those of human rights—for
example, interdependence, holism, relationality, and responsibility. By
contrast, I believe (1) that precisely such concepts are already built
into the human rights movement and regime, and (2) that this move-
ment is itself an on-going, self-correcting, and constantly expanding
moral (and legal) revolution of the sort desired. Operating from this
perspective provides, in my view, a more realistic and practically
effective dynamic of moral, political, and legal development rather
than creating a global ethic de novo, and this is what I hope to show
in the remainder of this essay.

210 Journal of Religious Ethics

3. Revisiting Human Rights

Although the concept of human rights has a deep history stretching
back to twelfth-century discussions of natural law and natural rights,
the human rights movement came into its own as a modern social
practice in the mid-twentieth century in the aftermath of World War II.
Following two years of drafting and debate involving no fewer than
fifty-six country delegations from all parts of the world and represent-
ing many of the world’s philosophical, moral, and religious traditions,
the United Nations General Assembly on December 10, 1948, adopted
the Universal Declaration of Human Rights (UDHR) as a proclamation
to the world that certain social and material conditions were so crucial
to human survival and flourishing that they were henceforth to be
regarded as entitlements for all persons simply by virtue of their
humanity. The articles of the declaration mandated conditions of physi-
cal and civil security, material and economic necessities, political and
civil empowerments, and legal protections of various sorts. The day
prior to the UDHR’s adoption, the Convention on the Prevention and
Punishment of the Crime of Genocide was also adopted and opened for
signature and ratification (coming into force in 1951).6 Thus was born
the contemporary human rights movement, which in the ensuing six
decades has seen the adoption of some twenty human rights conven-
tions as well as numerous declarations, the development of a legal
regime for enforcement, the additional development of regional con-
ventions and courts, and the proliferation of thousands of human
rights NGOs—local, national, regional, international—all dedicated to
helping ensure that people’s human rights are met. The movement was
a global one from its very inception, and it was (and continues to be)
explicitly designed to accept (within constraints) moral, political, legal,
religious, and cultural diversity.

The movement has an in-built people’s bias or perspective, and its
developments since 1948 have been specifically targeted for various
vulnerable populations and groups the world over. These developments
are responsive not only to historical and political crises—for instance,
the dismantling of colonialism, special difficulties regarding social
discrimination, and problems of the stateless and refugees—but also to
hermeneutical interpretation, refinement, and expansion of the origi-
nal set of rights outlined in the UDHR, including the emergence of
collective and developmental rights for vulnerable minority groups and
communities. This hermeneutical dimension rests on an international
consensus that human rights function for all societies as protective

6 Many UN and regional human rights conventions and declarations are available in
various collections of official documents on human rights; see, for example, Brownlie and
Goodwin-Gill 2002.

Global Ethics and Human Rights 211

devices that regulate and mitigate dangers to persons stemming from
violence, unfair social practices, and failure to provide economic and
social conditions necessary for the development of the moral person-
ality. The hermeneutical endeavor explicitly involves cross-cultural
human rights dialogues as well as increasing attention to local cultural
interpretations of human rights standards that help foster a human
rights ethos in communities and institutions throughout the world. In
a very real sense, then, human rights project a cross-cultural moral
vision of conditions necessary (though not entirely sufficient) for a good
life for all. They call for non-pathological civil environments in which
all people are legally protected and civically empowered to participate
in their own governance. And the development of human rights is
guided—at least implicitly—by something like a Golden Rule and basic
human moral responses such as outrage or indignation at violations of
human well-being that “shock the conscience” of humankind (a formu-
lation often cited in human rights declarations and conventions), not to
mention a sense of interdependent responsibility on the part of all to
help ensure the guarantee of human rights locally, nationally, and
internationally. Human rights are self-evidently and self-consciously
anthropocentric, but in their expansion and development they can
apply to the nonhuman realm as well, inasmuch as human beings and
their social communities are just as self-evidently imbedded in a
broader natural environment, locally and globally. As an example, the
human right to health is now understood to entail the human right to
a healthy environment that has broad ramifications for the protection
of integral ecosystems.

Human rights, of course, are more than moral—cross-cultural or
otherwise—as is clear from the fact that they not only are bound up
with politics, diplomacy, and economics but also constitute a legal
regime that has been developing ever since the post–World War II
Nuremberg tribunals. Various aspects of this legal dimension warrant
some mention and brief discussion: international treaties and conven-
tions and their monitoring bodies; customary international law in the
form of ius cogens norms; international criminal law and associated
tribunals; regional human conventions, commissions, and courts; and
domestic laws and remedies.7 Common to all these modalities is the
fact that many human rights norms have been (re)institutionalized as
legal obligations; that is, they have been legally codified. So, for
example, the human rights norms of the UDHR were legalized when
the requisite number of states signed and ratified the International

7 There is a vast literature on the history of human rights law—including humani-
tarian law and international criminal law. Perhaps the most readable and accessible
overview is Robertson 2006.

212 Journal of Religious Ethics

Covenants for Civil and Political Rights and for Social, Economic, and
Cultural Rights (all now collectively referred to as the International
Bill of Human Rights). Along with these conventions are treaty bodies
or committees that periodically monitor state compliance with these
conventions and that can receive and investigate complaints of state
noncompliance. The soft power of circulated reports, diplomacy, and
public shaming (which can have economic consequences) are the prin-
cipal modalities of enforcement, which, despite realist skepticism, can
be sometimes effective. In addition to conventions, there is also the
development of customary international law regarding human rights—
that is, informal processes of recognition by states and their wide-
spread acceptance of ius cogens norms such as prohibitions on slavery,
apartheid, genocide, and torture—as indicated not only by treaties on
such matters but also rulings of tribunals, acceptance by paradigmatic
legal authorities, and, most importantly, state practice. International
criminal law and its enforcement began with the Nuremberg and Tokyo
Tribunals (along with lesser known related tribunals) and, after being
put on hold during the Cold War, reemerged in the early 1990s when
the UN Security Council interpreted its Chapter 7 powers to include
the establishment of ad hoc criminal tribunals following the Balkans
conflict and the Rwandan genocide. Around the same period, the
litigation of Augusto Pinochet’s arrest (for torture and other crimes
against humanity) in Britain at the request of a Spanish court resulted
in a significant legal ruling not only stripping former heads of state
from immunity from prosecution for such crimes but also providing
important confirmation of the doctrine of universal jurisdiction (where
any state in possession of the criminal can undertake prosecution of
him for those crimes wherever they might have been committed).
Needless to say, one significant outgrowth of more recent tribunals is
the emergence of the permanent International Criminal Court, which,
under its principle of complementarity, can undertake prosecutions
when the state ordinarily burdened with such responsibility is unable
or unwilling to prosecute.

Importantly, there are also regional human rights regimes in
Europe, the Americas, and Africa, with the most effective being that
associated with the Council of Europe: there is not only the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (1950; in force 1953)8 but also a European Court of Human
Rights, which litigates complaints of human rights abuses by state
members and which has developed a highly significant body of case

8 This convention has been amended and expanded by subsequent protocols. In
addition, there is the European Social Charter (1961; in force 1965), followed by
subsequent protocols, pertaining to socioeconomic human rights.

Global Ethics and Human Rights 213

law. Many domestic legal regimes have adopted (if they did not have
them already) bills of human rights within their constitutions, thus
enabling within many jurisdictions redress of complaints of the viola-
tion of human rights. And, in addition to domestic criminal laws
pertaining to human rights abuses, complaining individuals and
groups have been turning increasingly to domestic civil courts to secure
compensation for human rights violations.

For the past sixty years, then, the human rights movement has been
a dynamic and increasingly global one with significant moral, legal,
and political dimensions. This dynamic is evident in the aforemen-
tioned legal institutional developments, but there are also other devel-
opments to consider that bring the movement ever closer to being a
practicable global ethic. Particularly important to consider is its expan-
sion and refinement regarding the treatment of vulnerable popula-
tions, ranging across women, ethnic minority groups, refugees, and
indigenous peoples. Legal conventions now exist for these populations
that precisely identify individual and group protections. Not insignifi-
cantly, these conventions are often the result of bottom-up grass-roots
(rather than top-down beneficiary) projects, and they explicitly address
not only civil and political rights and powers but also socioeconomic
and developmental needs. Also important to consider is the way that
the human rights regime now quite self-consciously meshes itself with
other regulatory and legal regimes—embracing, for example, the
causes of environmental protections bearing on the welfare of the
entire planet, the regulation of transnational corporate activity in
the developing world, the combating of international crimes such as
human trafficking, and modifying the structural adjustment policies of
international financial agencies and altering their practices so as to
have more democratic participatory decision making.

4. Examples of Global Human Rights Dynamism

Perhaps the best and most forward-looking examples of the dynamic
expansion of the human rights movement can be seen in three par-
ticular developments.9 One is concerned with the individual and col-
lective human rights of especially vulnerable populations and
communities in the world—namely, the indigenous peoples located
within the territories of nation-states across the world. The second is
concerned with the intersection and mutual influence of human rights,
on the one hand, and environmental rights and responsibilities, on the
other. And the third focuses on human rights–oriented principles

9 I have discussed some of these examples at their earlier stages of development and
with a different purpose in mind in Twiss 2004.

214 Journal of Religious Ethics

regarding post-conflict transitional justice. These three examples are
paradigmatic for addressing the principal types of transbounday prac-
tical issues identified earlier (human- and environment-oriented),
though as we will see even this distinction is becoming muted by
notions of interdependence.

For centuries and continuing up to the present day, indigenous
peoples (First Peoples, Tribal Peoples) have been subjected to historic
injustices, ranging from colonialization, dispossession of their lands and
natural resources, forced relocation of their communities, forced removal
of their children, massive interference with their social and cultural
institutions, and despoliation of their natural environments to massive
extermination programs. As dispersed and clearly outnumbered com-
munities lacking the status of nation-states, these peoples wielded no or
little political power as separate communities either to avoid these
violations or even to claim or initiate forms of redress. Over the past
twenty years, these peoples have been systematically cooperating as a
political action group to address the problems that they have in common,
and they have done so within the UN human rights system. As a result
of their work, in September 2007, the General Assembly overwhelmingly
adopted by a vote of 143 to 4 (with 11 abstentions) the Declaration on the
Rights of Indigenous Peoples (2007).

This instrument is an extraordinary one in a number of respects.
First, it is the first human rights declaration that is genuinely and
exclusively grass-roots: that is, it was drafted by elected representa-
tives of the peoples themselves in a democratic decision-making
forum.10 Second, it articulates a set of future-oriented collective human
rights that derive from the recognized right of the self-determination of
peoples to their political status as well as their economic and social
development in a manner that is responsive to the past injustices
identified, for example: collective rights (asserted against majority
states and to the world) to their rights to self-governance in internal
and local affairs; maintenance of their distinctive institutions, prac-
tices, and customs; conservation of their natural resources and envi-
ronments (for both economic and spiritual purposes); and so forth.
Third, the declaration specifically affirms all presently recognized
human rights of individual persons in such a manner that (1) man-
dates changes in internal traditional practices that may, for example,
discriminate against certain persons or groups within the society, and
(2) affords special protection to certain especially vulnerable persons

10 In her address to the 61st Session of the United Nations General Assembly,
September 11, 2007, Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on
Indigenous Issues, commented: “This Declaration has the distinction of being the only
Declaration in the UN which was drafted with the rights-holders, themselves, the
Indigenous Peoples.”

Global Ethics and Human Rights 215

and groups within the community (elders, children, women, and the
disabled). Fourth, the declaration is explicitly past-referring not only in
resisting historical injustices for the future but also in requiring
redress with respect to the past, for example, repatriation of cultural
property and human remains and restitution or equitable compensa-
tion for usurped lands and resources. So, although it is asserted by
these peoples that no new rights are being claimed by them,11 these
features make the declaration quite distinctive—grass-roots initiated
and developed; an extensive set of collective rights coordinated with
individual rights; and the integration of past-referring and future-
oriented aspects of human rights—and indeed proffer a paradigmatic
model for subsequent developments.

The second example of a dynamic human rights development that
signals another large shift is the emergence of a newly formulated
human right to a clean, healthy, ecologically balanced, and sustainable
natural environment. This is a substantive right that through various
declarations, conventions, draft principles, and case law in various
national and regional jurisdictions has been derived from other more
basic human rights, such as the rights to life, health, and nutritional
needs such as food and water—all of which can be invasively violated
by, for example, air pollution, environmental degradation, ecosystem
destruction, and even climate imbalance.12 In effect, environmental
protection is viewed as a necessary precondition for the effective
enjoyment of human rights of other sorts. This fact is explicitly
recognized by the human rights and environmental protection legal
regimes. Admittedly, the starting point of this interconnected concern

11 This point was made repeatedly by various speakers at the UN General Assembly’s
61st Session on the occasion of the adoption of the Declaration. For example, Les
Malezer, Chairman of the Global Indigenous Caucus stated: “We emphasize once again
that the Declaration on the Rights of Indigenous Peoples contains no new provision of
human rights. It affirms many rights already contained in international human rights
treaties, but rights which have been denied to the Indigenous Peoples.” The claim was
reaffirmed and further elaborated on August 11, 2008 by S. James Anaya, Special
Rapporteur on the situation of human rights and fundamental freedoms of indigenous
peoples at the Human Rights Council’s 9th Session: “During the last three decades, the
demands for recognition of indigenous peoples across the world have led to the gradual
emergence of a common body of opinion regarding the content of the rights of these
peoples on the basis of long-standing principles of international human rights law and
policy.” This statement is followed by a detailed identification of the various instruments
that constitute the “foundation of previously existing sources of international human
rights law” pertaining to the situation of indigenous peoples and their rights, both
collective and individual.

12 A reasonably comprehensive listing of the instruments—both international and
regional—regarding human rights and the environment is provided by the Center
for Human Rights and Environment at http://www.cedha.org.ar/en/documents/25_
documents/.

216 Journal of Religious Ethics

is anthropocentric, but the deeper and more significant point is that a
human rights perspective is being extended spatially—to the local,
regional, and global environments in which all humans are imbedded—
and also temporally—inasmuch as what we have done in the past and
will do in the future regarding the natural environment affects both
present and future generations.13 The features of spatial and tempo-
rary expansion are complemented by the evident fact that the right to
a healthful environment (and thus to environmental protection and
conservation and all that this entails) is both an individual right that
each of us has as well as a collective right held by communities and
indeed the entire world population.

Current conventions and case law also exist for making this sub-
stantive environmental human right a reality through the prescription
of procedural mechanisms to access to information about the environ-
ment and the environmental impact of human activities and to mean-
ingful public participation in environmental decision making and in
the development of policies with environmental consequences. The
1998 Aarhus Convention (in force 2001)14 explicitly links human well-
being, the enjoyment of basic human rights, the right to live in an
environment adequate to health and well-being, and the duty (or
responsibility), both individually and in association with others, to
protect and improve the environment for the benefit of present and
future generations. It furthermore asserts that in order to fulfill this
environmental human right (and correlative duty) citizens must have
access to information, be entitled to participate in decision making, and
have access to justice in the form of redress in environmental matters.
What follows in the convention is a set of twenty-two detailed articles
and annexes that together specify the effective implementation and

13 This point about the spatial and temporal extension of human rights with respect
to the environment in particular has most recently been eloquently argued in the 2009
law monograph by Burns Weston and Tracy Bach. In that monograph, the authors cite
an insightful claim made by Judge A. A. Cancado Trindade in connection with a 2000
case before the Inter-American Court of Human Rights: “Human solidarity manifests
itself not only in a spatial dimension—that is, in the space shared by all peoples of the
world—but also in a temporal dimension—that is, among the generations who succeed
each other in time, taking the past, present and future altogether. . . . It is the notion of
human solidarity, understood in this wide dimension . . . [on which] lies the basis of the
whole contemporary thinking on the rights inherent to the human being” (quoted in
Weston and Bach 2009, 25). With respect to the general topic of the temporal extension
of human rights, see also Falk 2000, 192-94.

14 The full title of the Aarhus Convention (Aarhus being the city where the convention
was adopted) is Convention on Access to Information, Public Participation in Decision-
Making and Access to Justice in Environmental Matters. The convention is a regional
European one which came into force on October 30, 2001, after ratification by sixteen of
its signatories, and it develops certain principles originally proposed in the 1992 Rio
Declaration on Environment and Development.

Global Ethics and Human Rights 217

protection of these procedural rights. The reality, then, is that human
rights law and environmental law have converged to explicitly advance
local, regional, and international approaches to the environment in
order to mitigate problems of common concern to all of humanity,
which in turn has a synergistic effect for environmental protection and
policy, ranging across the atmosphere, ecosystems, water resources,
animal species, and even plant species (namely, their importance for
present and future nutritional and medicinal purposes).15

The context for considering the third example of the human rights
movement’s dynamism is the development of intercultural, indeed
global, dialogues about the meaning, interpretation, and refinement of
human rights and practical strategies for their implementation in the
contemporary world. This process has been going on for nearly two
decades, and the dialogues include those that are internationally
sponsored, government sponsored, and NGO sponsored (including in the
latter educational institutions and associations).16 These dialogues have
given rise to much talk of overlapping cross-cultural consensus about
human rights standards as well as practical strategies for instantiating
a human rights ethos in the communities and institutions of the world.

A case in point is the 2007 Chicago Principles on Post-Conflict
Justice (Chicago Principles 2007), a joint project spear-headed by
international NGOs on human rights, global affairs, criminal science,
and penal law, assisted by a vast consultation with justice officials, law
faculty, and NGOs from countries in North America, Latin America
(Central and South), Europe (North, Central, and Eastern), and Africa
(North and sub-Saharan). These principles attempt to integrate crimi-
nal, compensatory, and restorative justice for post-conflict societies in
a unique manner—by recommending the combination of reconciliation,
prosecution, reparation, reconstruction, memorialization, education,
and the advancement of healing and solidarity—all based on funda-
mental human rights norms, both civil-political and socioeconomic.17

15 An extremely useful discussion of human rights and the environment is provided
in the Report on the OHCHR/UNEP Experts Seminar on Human Rights and Environ-
ment, held in Geneva, January 14–15, 2002, available at http://www.cedha.org.ar/
conclusions.htm.

16 I have analyzed and discussed the aims and methods of some of these dialogues in
Twiss 1996.

17 Some examples of the pertinent language of the document addressing both civil-
political and socioeconomic human rights concerns include these: “[G]enuine peace
requires the creation of a positive foundation for social, political and economic growth
grounded in the respect for fundamental human rights”; and “States should engage in
broad social and economic reforms that address basic structural causes of conflict,
including: significant economic inequality [and] structural mechanisms of social and
political disempowerment” (Chicago Principles, 11 and 41).

218 Journal of Religious Ethics

The principles are quite specifically victim oriented, including not only
the primary victims of repression and atrocity but also their families
and communities, and they make a special effort to foreground
women’s rights and to include “traditional, indigenous, and religious
approaches to justice and healing” (as appropriate to a given society).18

The principles are divided into the categories of prosecution (with
preference given to domestic or hybrid domestic–international courts);
truth-telling and historical reconstruction of past atrocities; victims’
rights and remedies; vetting policies and sanctions for restricting the
participation of past perpetrators in future governments; memorializa-
tion and education of historical memory; integration of traditional and
indigenous justice norms; and institutional reform of various sectors
of society and government. Throughout, it is made clear that other
more-developed and -stable states as well as the international commu-
nity as a whole must bear much of the fiscal burden for initiating and
sustaining these processes.19

Lest it be thought that these principles are efficacious only in theory
but unrelated to practice, I would observe that they are being actively
referenced and invoked even now by officials of the current ad hoc
criminal tribunals for the former Yugoslavia and for Rwanda in connec-
tion with justifying their outreach educational programs to citizens of
those regions and in planning the devolution of future criminal cases
back to domestic jurisdictions, which, in the case of Rwanda, interest-
ingly include indigenous traditional forms of dispute settlement.20 More
importantly, we see in these principles and their nascent operation quite
explicit themes of relational understandings of person and community,
cooperation among national and international agencies, and a sense of
shared responsibility for reconciliation and reconstruction, not to
mention a special onus being placed on more advantaged nations to

18 Women’s rights is my way of referring to the document’s calling special attention
to “vulnerable groups” (including, for example, women, children, and minorities), the
“special needs of women,” and the “often gendered nature of political violence” (Chicago
Principles, 13 and 16). The role of traditional indigenous and religious approaches to
justice, healing, and reconciliation is addressed by Principle 6 (Chicago Principles,
36–37).

19 The document emphasizes the role of the international community in such lan-
guage as this: “It is essential . . . that there is adequate international funding and
support” (Chicago Principles, 12).

20 The Chicago Principles were specifically referenced at a conference of experts held
at Florida State University, January 30–31, 2009, under the title of International
Criminal Tribunals: Problems and Prospects and sponsored by FSU’s Center for the
Advancement of Human Rights. The Rwandan traditional courts are called “Gacaca,” a
term which translates literally as “grass,” referring to traditional dispute settlement held
by community members sitting on the grass (Ochieng 2009).

Global Ethics and Human Rights 219

assist and support these processes—all themes integrally connected
to the global moral vision of the working group I described earlier.

5. Conclusion

My point in offering these examples of recent human rights devel-
opments is to highlight the fact that the human rights movement as a
whole incorporates in a significant way the very features, norms, and
goals that the advocates of global ethics find definitive of their con-
cerns. These include the normative goal of a good life for all; respectful
and democratic national civil environments; an international civil
environment involving economic equity and mutual cooperative respon-
sibility among nations; and a firm and effective commitment to pro-
moting broadly participatory practical dialogues at all levels about
transboundary and shared social, economic, political, and environmen-
tal problems. I suspect that many globalists might overlook these
defining similarities because they misconstrue the open-textured
nature of human rights and the human rights regime. Contrary to the
common misperception that international human rights are simply an
expression of neo-liberal economic hegemony, they are in fact firmly
rooted in relational and interdependent understandings of persons and
communities that coordinate strong notions of personal and communal
entitlements among present and future generations in all matters
bearing on the survival and flourishing of our species and the world as
a whole. As understood by the human rights movement, human rights
norms constitute a global ethic that precisely addresses all of the
concerns of the latter’s advocates, and does so in a way that is
self-consciously responsible to cultural pluralism as well as recurrent
and newly emergent challenges to human well-being as integrally
related to the well-being of social and natural environments. Moreover,
it should not go unnoticed that the human rights movement is well-
entrenched throughout the world and of particular concern and value
to the victims of political and economic oppression in their respective
contexts.

It is certainly well and good to speak of the development of a global
ethic, but it seems more than prudent to recognize that this ethic has in
fact been emerging over the past six decades precisely in the human
rights movement, with a record of accomplishment achieved by no other
agency in the world. It also seems prudent to build upon what we have
already achieved rather than reformulating over and over again the
same moral points that we have already agreed upon. We already have
a global ethic. We simply need to do better at making it a sustained
reality.

220 Journal of Religious Ethics

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Aarhus Convention
1998 Convention on Access to Information, Public Participation in

Decision- Making and Access to Justice in Environmental Matters.
http://www.unece.org/env/pp/documents/cep43e (accessed
December 3, 2010).

Brownlie, Ian, and Guy S. Goodwin-Gill, eds.
2002 Basic Documents of Human Rights. 4th ed. Oxford: Oxford Uni-

versity Press.

Chan, Jonathan
2002 “Taking Moral Diversity Seriously—A Discussion of the Founda-

tions of Global Bioethics.” In Bioethics and Moral Content:
National Traditions of Health Care Morality, edited by H. Tris-
tram Engelhardt and Lisa M. Rasmussen, 235–49. Dordrecht:
Kluwer Academic Publishers.

Chicago Principles
2007 The Chicago Principles on Post-Conflict Justice. Chicago:

International Human Rights Law Institute. http://www.
concernedhistorians.org/content_files/file/to/213 (accessed
December 3, 2010).

Declaration on the Rights of Indigenous Peoples
2007 Declaration on the Rights of Indigenous Peoples. http://www.

iwgia.org/sw248.asp (accessed December 3, 2010).

Enderle, George
2008 “Rediscovering the Golden Rule for A Globalizing World.” In

Responsibility and Commitment, edited by Tze-wan Kwan, 1–15.
Waldkirch: Gorz.

Falk, Richard A.
1993 “The Making of Global Citizenship.” In Global Visions: Beyond the

New World Order, edited by Jeremy Brecher, John Brown Childs,
and Jill Cutler, 39–49. Boston: South End Press.

2000 Human Rights Horizons: The Pursuit of Justice in a Globalizing
World. New York: Routledge.

Kim, Yersu
1999 A Common Framework for the Ethics of the 21st Century. Occa-

sional Paper. Paris: UNESCO.

Morsink, Johannes
2009 Inherent Human Rights: Philosophical Roots of the Universal

Declaration. Philadelphia, Pa.: University of Pennsylvania Press.

Ochieng, Zachary
2009 “How Rwanda’s Traditional Courts Are Speeding Up Trials of

Genocide Suspects.” News from Africa: Features (June 13). http://
africa.peacelink.org/tools/print.php?id=11624 (accessed December
3, 2010).

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Robertson, Geoffrey
2006 Crimes Against Humanity: The Struggle for Global Justice. 3rd

ed. London: Penguin Books.
Stout, Jeffrey

2004 Democracy and Tradition. Princeton, N.J.: Princeton University
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Twiss, Sumner B.
1996 “Comparative Ethics and Intercultural Human Rights Dialogues:

A Programmatic Inquiry.” In Christian Ethics: Problems and
Prospects, edited by Lisa Sowle Cahill and James F. Childress,
357–78. Cleveland, Ohio: Pilgrim Press.

2004 “History, Human Rights, and Globalization.” Journal of Religious
Ethics 32.1 (Spring): 39–70.

Weston, Burns H., and Tracy Bach
2009 Recalibrating the Law of Humans with the Laws of Nature:

Climate Change, Human Rights, and Intergenerational Justice.
Occasional Paper. South Royalton, Vt.: Vermont Law School.
http://international.uiowa.edu/centers/human-rights/documents/
CLI_Policy_Paper .

222 Journal of Religious Ethics

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Olivier De Schutter
The Role of Human Rights
in Shaping international
Reguiatory Regimes

THE CURRENT SYSTEM OF GLOBAL GOVERNANCE IS FRAGMENTED

among different and sometimes conflicting regimes that result in
an imbalance between states’ obligations under trade and invest-
ment agreements on the one hand, and human rights treaties on the
other hand. This system restricts the pohcy space countries require to
discharge their human rights duties toward their populations and must
be rethought. Some have proposed that the current division of labor
between regulatory regimes would be satisfactory if each regime were
to be further strengthened. Others advocate building bridges across
regimes in order to overcome the current fragmentation. Still others,
giving up on the international level, argue that consistency can and
should be achieved at the level of the nation-state and that our efforts
should focus on strengthening domestic democratic processes.

My position is that self-determination at the national level can
only be achieved by reshaping the international economic environ-
ment, and that internationally recognized human rights provide the
appropriate departure point for that enterprise. What I call the “Rome
model” of international cooperation is based on the recent estab-
lishment of the Committee on World Food Security, which seeks to
recognize that the right to adequate food for all constitutes a global
public good, and for the delivery of which more international coop-
eration, hence global governance, is required. The perspective is not a
Utopian one—the experiment in one discrete field could be rephcated

social research Vol. 79 : No. 4 : Winter 2012 785

in others—nor would it constitute a departure from the current state
of international law. Instead, it would be a return to the original prom-
ise of the Universal Declaration of Human Rights, which calls for “a
social and international order in which the rights and freedoms in this
Declaration can be fully realized” (Art. 28). It is this promise that we
must now reclaim.

THE BIRTH OF FRAGMENTATION: THE ORIGINAL
BETRAYAL
The immediate post-World War II order established after the Bretton
Woods and San Francisco conferences was premised on the idea that
states should cooperate at international level for the full reahzation of
human rights and the achievement of a just economic order.^ Under
the UN Charter, all members of the United Nations pledge to “take joint
and separate action in cooperation Mdth the Organization” to achieve
the purposes set out in Article 55 of the charter, which include “univer-
sal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or reli-
gion.” When it was adopted three years later, the Universal Declaration
of Human Rights not only provided a catalogue of rights concretizing
the requirements of the United Nations Charter. It also, as we have
seen, set out a duty of international cooperation for the realization of
economic, social, and cultural rights: this objective, it states, must be
achieved “through national effort and international co-operation and
in accordance with the organization and resources of each State,” and
it requires the establishment of an international economic order that
supports states in the fulfilment of this objective.

The hopes expressed then were close to being fulfilled. In
February 1946, negotiations began on the establishment of an
International Trade Organization (ITO) as a specialized agency of the
United Nations. The ITO’s charter was agreed to in Havana in March
1948. Members pledged to implement Article 55 of the UN Charter by
assuring “a large and steadily growing volume of real income and effec-
tive demand” and by increasing “the production, consumption and

786 social research

exchange of goods, and thus to contribute to a balanced and expanding
world economy.” They also committed to “foster and assist industrial
and general economic development, particularly of those countries
which are still in the early stages of industrial development, and to
encourage the international flow of capital for productive investment”;
to “further the enjoyment by all countries, on equal terms, of access
to the markets, products and productive facilities which are needed
for their economic prosperity and development”; to promote ttade as
an instrument of economic development; and generally, to “facihtate
through the promotion of mutual understanding, consultation and
co-operation, the solution of problems relating to international trade in
the fields of employment, economic development, commercial pohcy,
business practices and commodity pohcy.” The ITO thus was conceived
as an organization in which countries could gradually agree on how to
support international trade in order to ensure that it would contribute
to emplojmient and development, and in close cooperation with the
United Nations Economic and Social Council. The Charter establishing
the r r o also noted that unemployment should be treated as a common
concern calhng for international cooperation and that the promotion
of trade should be at the expense of the protection of fair labor stan-
dards: it acknowledged that “all countries have a common interest
in the achievement and maintenance of fair labor standards related
to productivity, and thus in the improvement of wages and working
conditions as productivity may permit.” It included strong provisions
on the role of international assistance and cooperation in the service of
development.

Those objectives soon appeared to be overambitious, however.
On December 6, 1950, drawing conclusions from the strong opposi-
tion of the US Congress, where many feared the ITO would represent
a too important check on US sovereignty. President Harry Truman
announced that the United States would not ratify the ITO Charter
(Jackson 1969, 37-38; Diebold 1952). In the meantime, the General
Agreement on Tariffs and Trade (CATT) had become provisionally
applicable in January 1948. But what had been lost was more than the

The Role of Human Rights in Shaping International Regulatory Regimes 787

promise of one international agency that would ensure a consistent
approach across the areas of trade, emplojmient, and economic devel-
opment: as would soon become clear, it was the idea of international
cooperation itself for the fulfilment of the latter two objectives that
was being questioned.

The result of this initial failure to set up the International Trade
Organization are well known. The GATT—initially made to enter into
force “provisionally” in order to avoid a sudden suspension of trade
flows—was institutionalized and the regime of international trade
significantly strengthened, almost 50 years after the initial GATT, by
the setting up of the World Trade Organization (WTO). The Marrakesh
Agreement of April 15,1994, which established the WTO, may be seen
as the final stage in a process that began in 1948. This process led to a
gradual liberalization of international trade through a series of trade
negotiations that were conducted formally outside the UN system and
without any explicit connection to other areas (such as labor rights,
environmental standards, or human rights) that were subject to inter-
national cooperation. In addition, since the establishment of the WTO,
the disciplines imposed in the multilateral trading system have been
enforced under the threat of economic sanctions through a dispute
settlement mechanism that is a highly effective tool in the hands of
the largest and most developed economies (which are in effect the only
powers that can impose sanctions that can hurt): this is in contrast
to the enforcement means at the disposal of the International Labor
Organization or the UN human rights system, which essentially rely on
the reputational costs incurred by countries that ignore their interna-
tional commitments in these areas.

Both the separation between trade and other “nontrade concerns”
and the imbalance between trade agreements and other international
commitments are central characteristics of the international economic
order that John G. Ruggie famously described as “embedded liberal-
ism” (Ruggie 1982). In this order, the reduction or elimination of trade
barriers between modern welfare states should serve to enhance the
redistributive capabilities of each state vis-à-vis its own citizens, thus

788 social research

leading the regulatory state at the domestic level to complement trade
liberalization at the international level: the gains from trade should
benefit the welfare state, just as the welfare state should protect the
losers from international trade, thus ensuring that international trade
remains a politically desirable option.

But does it work? This idealized view of how the expansion of
trade and the deepening of the international division of labor should
fuel economic grov^^h, thus allovwng countries to finance social protec-
tion and create emplo3anent at home, grossly underestimates the
tension between the short-term and the long-term considerations that
guide states in the commitments they make to remove barriers to

trade.

For the deepening of the international division of labor, which may
bring about certain immediate benefits, may also not work in favor of
the long-term development of poor countries, and thus of their abil-
ity to promote the full realization of human rights. As already noted
by the United Nations Economic Commission for Latin America when
it was under the leadership of Raúl Prebisch in the 1950s, countries
that export raw commodities shall have to export increasing volumes
in order to import the manufactured products, with a higher added
technological value, that they are unable to produce themselves. Thus,
in the long term, the removal of barriers to trade, which accelerates the
specialization of each country into the kind of production in which it
has a comparative advantage, vidll not benefit the least industrialized
countries: while trade liberalization may bring them short-term advan-
tages—they will increase their exports of raw commodities and pay less
for their imports of manufactured goods than if they had to produce
such goods themselves—the long-term consequences will be a widen-
ing of the gap between the rich and the poor countries, and an inability
for the latter to climb up the ladder of development.

That, in essence, is what later came to be known as the Prebisch-
Singer thesis of deteriorating terms of trade. It leads to the idea that
international trade, replicating the patterns of colonialism, may in fact
accentuate the dependency of developing countries on the former colo-
nial powers and make it impossible for these countries to overcome the

The Role of Human Rights in Shaping International Regulatory Regimes 789

obstacles to development. These views were central to the work of the
United Nations Conference on Trade and Development after its estab-
lishment in 1964, and to the attempts to estabUsh a New International
Economic Order in the 1970s (Bedjaoui 1979). They are currently
revived, with some variations, by economists such as Ha-Joon Chang
or Erik Reinert, who note that rich countries have become rich thanks
to the protection of their nascent industries, and that they now preach
free trade to developing nations simply because, having climbed up
the ladder of development, free trade has now become in their inter-
est (Chang 2002, 2007; Reinert 2007). Globalization, these economists
remark, has benefited the countries—such as, for example, Brazil,
China, South Korea, or India—that carefully sequenced trade liberal-
ization, and that built an industrial and a services sector behind trade
barriers before opening up to trade. But for the developing countries
that had not diversified their economies and whose industrial sector
was still too weak at the time when the economies opened, it has meant
the relegation to a permanent status of underclass nations (Stiglitz and
Charlton 2007,17). That process, in which poor countries remain poor
because they are actively discouraged from diversifying their econo-
mies, was further accelerated during the 1980s and 1990s when they
were forced to pursue macroeconomic policies that would reduce the
size of the public sector and integrate their economies to global trade
under what came to known as the “Washington consensus.”^

The search for an alternative to the Washington consensus has
now begun. Indeed, the main reason why “embedded liberalism” has
come to be discredited is because of its failure to recognize that coun-
tries cannot effectively pursue progressive welfare pohcies at home if
the international environment is not reshaped in accordance with their
needs—and the infinite postponement ofthat objective is increasingly
seen as one key reason why social progress and the realization of human
rights at domestic level are so slow. Keeping the fromise, the outcome
document on the implementation of the Millennium Development
Goals (MDG) that the General Assembly adopted by consensus on
September 22, 2010, notes in this regard (in para. 37):

790 social research

We recognize that the increasing interdependence of
national economies in a globalizing world and the emer-
gence of rules-based regimes for international economic
relations have meant that the space for national economic
policy, that is, the scope for domestic policies, especially
in the areas of trade, investment and international devel-
opment, is now often framed by international disciplines,
commitments and global market considerations. It is for
each Government to evaluate the trade-off between the
benefits of accepting international rules and commitments
and the constraints posed by the loss of pohcy space.

This constitutes an acknowledgment of what we may call the
“double-bind” problem: while countries are bound to comply with their
human rights commitments at home, many of which correspond to the
MDGs, they are discouraged from doing so in practice (even though
they may not be prohibited from doing so in theory) because the inter-
national environment has not been transformed to favor this.

FRAGMENTATION ORGANIZED: THE “GENEVA
CONSENSUS”
But what, then, are the alternatives? One has been proposed by Pascal
Lamy, the director general of the WTO. Eager to dissociate himself from
the discredited Washington consensus, he calls it the “Geneva consen-
sus.”^ This view acknowledges that an increase in trade opportuni-
ties creates winners and losers, and may be disruptive, but it places
its bets on a functional differentiation between the WTO, in charge of
setting trade rules to ensure that markets are open and rules-based, and
other international agencies or fora in charge of supporting countries
and helping remedy any imbalances that may result between differ-
ent groups of the population. Thus, the Geneva consensus is an under-
standing of international governance in which a division of labor is
encouraged between the various international agencies: while the WTO
should focus on trade, the International Labor Organization should

The Role of Human Rights in Shaping International Regulatory Reginnes 791

promote international labor standards, the World Health Organization
support public health policies, or the Office of the High Commissioner
for Human Rights and human rights bodies push for compliance with
human rights.

This view is popular among many governments and international
agencies alike because, rather than providing an impetus of change, it
offers an elegant justification for the status quo. I am deeply suspicious.
First, the idealized Geneva consensus does not take into account the
very different leverage that each of these various agencies can exer-
cise on their member states, although they differ widely among them-
selves both in their ability to adopt rules and to enforce them. Second,
the Geneva consensus underestimates the risk of conflicts between
regimes because of the strong overlaps that exist, in fact, between the
different issues that are of international concern. What we need is not
more separation, but instead more consistency across policy areas that
cannot be considered in isolation.

We cannot say, for instance, that trade issues should be discussed
in Geneva within the WTO and climate change in Bonn under the
auspices of the United Nations Framework Convention on Climate
Change,* because that would underestimate the relationship between
the development of international trade and efforts to mitigate climate
change by limiting greenhouse gas emissions. While trade may favor
the spread of cleaner technologies that, once taken up, can lead
to less carbon-intensive types of growth in the importing country
(this is referred to as the “technology effect” of international trade),
it also favors increased economic growth and levels of consumption,
as resources are freed up from their less productive uses to be rein-
vested or spent elsewhere (this is the “scale effect” of tiade). Studies are
now converging to show that the “scale effects” of international trade
outweigh “technology effects” (for a literature review, see Santarius
2009). If these studies are correct, it follows that we cannot pretend at
the same time to pursue a free ttade agenda leading to the expansion
of North-South ttade fiows and to combat climate change. The develop-
ment of international trade may be good for “convergence,” allowing

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less developed countries to grow, but it is not compatible with the aim
of “contraction” in rich countries, which is unavoidable if we want to
avoid the ecological catastrophe that scientists foresee.

What needs to be promoted, therefore, is the expansion of devel-
oping countries and their adoption of clean technologies by means other
than international trade with industrialized countries. Such means
exist. They include the diversification of the economies of developing
countries, regional integration, and South-South trade. Such develop-
ment pathways for poor countries move away from a colonial pattern of
resource exploitation in which Southern countries provide raw commod-
ities and exploit their subsoil, and Northern countries produce higher
added-value and knowledge-intensive products. In order to favor the
rapid picking up of more resource-efficient technologies in developing
countries, it should be combined with massive technology transfers—
for example, by the establishment of a fund in which clean technolo-
gies could be treated as global public goods funded by Organization for
Economic Cooperation and Development (OECD) countries.

Or consider, to take another example, the problem of “carbon
leakage,” also known as the problem of “virtual emissions,” to refer to
the emissions produced in the production processes of products that
are exported, and thus “externalized”—or outsourced—by the import-
ing country. It has been calculated that in 2001, “the EU [European
Union] imported goods with virtual emissions amounting to some 992
mégatonnes (Mt) CO2, whereas only 446 Mt CO2 emissions arose from
the production of exports within the EU. Thus the EU displaced over
500 Mt CO2 emissions overseas” (Sartarius 2009, 9). Researchers from
the Carnegie Institute estimated recently that 23 percent of the green-
house gas emissions linked to the goods consumed in developed coun-
tries—for a total of 6.4 bilhon tonnes of CO2—have in fact been emitted
elsewhere, and that 22.5 percent of the greenhouse gas (GHG) emis-
sions from China are for the production of export goods to satisfy the
tastes of consumers in the North (David and Caldeira 2010).

Yet, the reporting mechanism under the 1997 Kyoto Protocol
does not take these “vitual emissions” into consideration. Only

The Role of Human Rights in Shaping International Regulatory Regimes 793

emissions arising from production and consumption within one
country are recorded, not emissions arising from the production of
export products that one country imports in order to meet consumer
demands. This allows industrialized countries to meet their obliga-
tions under the United Nations Framework Convention on Climate
Change (UNFCCC) to reduce their emissions simply by outsourcing
the most polluting industries in developing countries. We therefore
either must reform the way reporting on emissions is organized or we
must impose restrictions on developing countries, at least insofar as
their export products are concerned. For the moment, the reason we
in the industrialized countries can pretend to limit greenhouse emis-
sions without changing our lifestyles is not because we are smart at
developing cleaner technologies: it is because we outsource the most
polluting types of production.

Similar examples exist that show how artificial it would be to
separate human rights (to be dealt v\àth, according the the “Geneva
consensus,” by the Office of the High Commissioner for Human Rights
[OHCHR] and human rights bodies) and trade (falhng under the remit
of the WTO). It is manifest, for instance, that measures adopted by
states to comply with the disciplines imposed under the Agreement on
Agriculture (the multilateral agreement v^thin the WTO that concerns
trade in agricultural products) may conflict vdth the requirements
of the right to food, for instance where low-income countries lower
import tariffs according to their schedule of commitments and thus
expose their producers to dumping from rich countries, or where they
renounce stabilizing prices through the establishment of food reserves
because that would go beyond the flexibilities allowed under the forms
of support that fall under the “Green Box,” hsting measures that are not
considered to introduce trade distortions (De Schutter 2011a, 2011b).
More generally, WTO disciplines may restrict the policy space, partic-
ularly for countries seeking to pursue active industrial policies, and
thus make it more difficult for them to follow a development path that
wdll allow them to pursue the progressive realization of human rights
(DiCaprio and Gallagher 2006; Joseph 2011).

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FRAGMENTATION OVERCOME: BUILDING BRIDGES
ACROSS REGIMES
The solution cannot be a division of labor between institutions because
of the reality that pohcy areas overlap each other and we cannot main-
tain their artificial isolation. It does not follow, however, that the solu-
tion to the problem of the “double-bind” is simply in mechanisms
aimed at reducing the risk of what international lawyers have called
the risk of fragmentation of international law—that is, the differentia-
tion of international law into a number of self-contained regimes, each
with its ovm norms and dispute-settlement mechanisms, and relatively
autonomous both vis-à-vis each other and vis-à-vis general international
law (International Law Commission 2006, para. 8; Simma 1985).

Increasingly, the separate international regimes have built
“bridges” to other regimes, reducing the risks of fragmentation. For
instance, investment treaties may make it clear that the prohibition
of indirect expropriation (or “regulatory takings”) or the guarantee
of “fair and equitable treatment” shall not be construed as imposing
obstacles to the adoption by parties of nondiscriminatory regulatory
actions that seek to protect legitimate public welfare objectives, such
as public health, safety, and the environment.^ Arbitral tribunals decid-
ing on investment disputes opposing the investor of one party to the
host state may decide that the protection due, under the investment
treaty, to the investor, should not be granted to “investments made
in violation of the most fundamental rules of protection of human
rights,” as noted by an International Center for the Settlement of
Investment Disputes (ICSID) arbitral tribunal in a case concerning the
Czech Republic (Phoenix Action v. Czech Republic, ICSID Case No. ARB/06/5,
Award, 15 April 2009, para. 78).

Similarly, commitments under the WTO framework must be
interpreted, to the fullest extent possible, so as to be compatible with
general international law, as well as with the rules of any treaty appli-
cable in the relationships between the parties to the dispute giving rise
to the question of interpretation, as such rules may develop, in particu-
lar, through adjudication. In the WTO system, the requirement that the

The Role of Human Rights in Shaping International Regulatory Regimes 795

agreements be interpreted in accordance with the other international
obligations of the members is further strengthened by the fact that
the authoritative interpretation of the agreements lies in the hands
of the members themselves, vdthin the ministerial conference or the
general council, and the members cannot ignore their human rights
obligations in providing such interpretations. The climate change
regime too has recently acknowledged the need to implement adap-
tation and mitigation strategies that take human rights into account:
at the sixteenth session of the Conference of Parties (COP) to the UN
Framework Convention on Climate Change (UNFCCC) that met in
Cancún between November 29 and December 10, 2010, referring to
Resolution 10/4 of the United Nations Human Rights Council on human
rights and climate change, the parties recognized that climate change
had “a range of direct and indirect implications for the effective enjoy-
ment of human rights” and that “the effects of chmate change will be
felt most acutely by those segments of the population that are already
vulnerable owing to geography, gender, age, indigenous or minority
status and disability.”

Yet while an improvement, this still is not satisfactory. First,
these stopgaps do not provide a satisfactory answer to situations of real
confiict which no conform interpretation of the treaties could avoid.
Nor do they address the “chilling effect” that the stipulations of trade
or investment agreements may cause when states do not know whether
or not any specific measure they take, in order to comply v^dth their
human rights obligations, vnll be considered acceptable by the other
parties or instead expose them to retaliation—particularly when they
seek to adopt measures that, although not strictly required by human
rights treaties, nevertheless would contribute to the progressive real-
ization of human rights.

But there is a further, and deeper, reason why this approach—
overcoming fragmentation by building bridges—fails. It is one thing to
avoid the risk of conflicts between regimes. It is quite another to reshape
international law to enable states to achieve objectives, such as human
development or the realization of human rights, that we deem para-

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mount. For instance, when Christian Barry and Sanjay Reddy discuss
how, under certain conditions, they identify with great care a linkage
between trade and labor rights might be justified, they are not simply
stating that ttade law should not stand in the way of countries comply-
ing with their obligations to uphold basic labor rights. They are saying,
rather, that the trade regime could serve to enforce compliance with
labor standards (Barry and Reddy 2006,2008). Access to export markets,
they show, while of course not prohibiting states from complying with
such standards, may still encourage states to achieve competitiveness
in global markets—even if this is at the expense of the rights of work-
ers. Yet if adequately reformed, the trade regime could be shaped to
achieve the exact opposite: provide incentives to comply rather than
reduce the level of protection of these rights. Reducing or even elimi-
nating the risk of conflicts is not enough. What we must achieve is
change in the incentives structures that states face.

BEYOND FRAGMENTATION: CONSISTENCY AT HOME
But on which level should we focus our efforts? One popular view is that
all that is required is to sttengthen democratic processes at the national
level to ensure that countries behave, in international negotiations, in
a way that truly reflects their interests. The main locus of legitimate
governance today remains the nation-state, we are told, and provided
the processes by which each nation determines where its interests lie
are sufficiently transparent and allow for well-informed deliberation,
we should trust the outcomes. If negotiators really were held to account
to their populations, the argument goes, rather than to the narrow
elites that generally influence the position of governments in inter-
national negotiations, they would contribute to building the sort of
regimes that are best attuned to the world’s needs. We should therefore
expect consistency across regimes to be achieved at the domestic level,
even though it may not be achievable at the level of global governance.
Three arguments are put forward in favor of this view. These arguments
fail, however, and there are in fact sttong counterarguments that can
and should be opposed to this minimalist approach.

The Role of Human Rights in Shaping International Regulatory Regimes 797

Dani Rodrik (2011) provides the first argument in favor of this
position. In an elegant demonstration, he notes that international
regimes may take the form of what he calls “semi-private goods.” Trade
would provide the paradigmatic example: if each country truly did what
was in its interest, as defined through transparent and well-informed
democratic deliberation, it would abandon policies that reward a
narrow group within their constituency (the “special interests” that
benefit from protectionist policies) and move toward trade policies
that, because they would be more open, would in fact contribute to
the global economy. Specializing into whatever it has a comparative
advantage in, after all, is in the interest of each country, although it so
happens that an international division of labor according to compara-
tive advantage also is generally seen to be in the interest of the world
economy, because it promotes allocative efficiency, thus expanding the
size of the pie for all. This is a version of the classic idea that private
vices result in public virtue, that private and public interest converge: it
is the invisible hand writ large.

Unfortunately, the argument fails for predictable reasons. First,
it underestimates the bargaining logic behind international negotia-
tions: even where it would be in the interest of each country to aban-
don mercantilist trade policies, countries may not be willing to do so
unilaterally because they see import tariffs as a bargaining chip that
can allow them to obtain concessions from other countries in favor of
their exporters. Second, the argument does not recognize the interde-
pendency between “semi-private goods” (such as free trade regimes)
and truly “public goods” (such as the reduction of greenhouse gas emis-
sions that contribute to climate change). For such goods that are truly
“public” in nature, of course, the idea that each state would unknow-
ingly conspire for the overall good if only it defined its interest in an
enlightened way does not hold. But the two, we have seen, cannot be
so easily separated: how trade is organized has an impact on economic
growth and on the ability for climate change mitigation strategies
to succeed. And Rodrik’s proposal that we should focus on improv-
ing the quality of deliberation at domestic level begs the question of

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how the global public goods will be provided at all: in this “two-steps”
approach, in which countries define their national interest first and
seek to conclude international agreements afterward, there is hardly
any possibility for such global public goods to emerge because by defi-
nition it will always be in the interest of each nation to free ride on
the contributions of other nations, rather than commit to joining the
collective effort. Indeed, by Rodrik’s OWTI admission, this is true even
in the area of trade, otherwise the classic example of the “semi-private
good”: China’s mercantilist policies. These policies, based on a weak
renminbi and repressed wages, are working for China and would only
have a chance of being reversed (thus reducing the macroeconomic
imbalances these policies are presently causing) if China were insured
against the risks it would take at domestic level in changing course.

Third, the hopes placed in democratic deliberation at the
national level seem highly unrealistic. Such choices are not made in a
vacuum; they always take into account the constraints of the interna-
tional context in which a nation defines its “national interest.” In fact,
the interdependency of countries has become such that nations may be
called “semi-sovereign”: their trade, monetary, fiscal, and social poli-
cies, and to a large extent their environmental pohcies, are defined on
the basis of the policies pursued by the other nations, v̂ dth which they
share the global marketplace and the atmosphere.

This is not to say that states vdll systematically prioritize their
economic interest in increasing their exports or in attracting inves-
tors over other values, such as in ensuring a high level of protection of
workers or of the environment. This view of a “regulatory competition”
between states, whose sole objective would be to enhance their compet-
itiveness in the global marketplace and to attract capital by lowering
standards applied domestically (Simmons et al. 2006) is highly reduc-
tionist, and it oversimphfies how the “national interest” is defined as
the product of a struggle for its definition at domestic level (De Schutter
2010; Scharpf 1997, 524). Nor can we ignore the reality of the incen-
tives that influence dehberations at domestic level. The need to attract
capital or at least to avoid outsourcing of production, to maintain an

The Role of Human Rights in Shaping International Regulatory Regimes 799

adequate balance of pajmients, or to create opportunities for exports,
are not the sole preoccupation of the citizens that contribute to define
the national interest, but is would be naive to think they are not a
preoccupation. (Incidentally, this is also why the concern expressed by
John Rawls [1999] that attempts to improve global justice by relying on
international institutions are incompatible with respecting the collec-
tive autonomy of national communities, is unconvincing: this presup-
poses that strengthening international institutions necessarily results
in weakening democratic self-determination at national level, when in
fact it may do the exact opposite: allow people to decide, without being
hostage to any international environment given once and for all.)

There is a second argument in favor of strengthening of demo-
cratic deliberation at the national level, which sees this route as a
“second best.” The argument goes as follows: because the reshaping of
international regimes would be fraught with dangers or too difficult to
achieve, we should refocus our efforts on what seems, after all, to be both
achievable and promising—building the capacity of national decision-
making processes so they can meaningfully serve to define the state’s
position in the international arena. The skepticism toward the reshaping
of international regimes can stem from the idea, most forcefully articu-
lated by Richard Miller (2006, 503), that these regimes are systematically
being captured by the most powerful states: attributing “new powers for
institutions linking the strong and weak,” he argues, is a risky strategy,
because “the domineering influence of the top participants may make
the new institutional powers further tools for domination.”^

However, for all the risks involved in attempting to reshape
global regimes in order to make them more “just,” these risks may pale
in comparison to those involved in the current status quo. For what
do we have at present? We have a general international law that has
been gradually developed largely as a product of the imperial powers’
interests and that is not generally responsive to the needs of the poor-
est countries (Anghie 2005; Rajagopal 2003). Largely the result of inter-
actions between states that gradually solidify into expectations about
conduct in international relations and then, once a sense of legal obli-

800 social research

gation accompanies such conduct, into custom, general international
law systematically favors the states that are the largest and the most
powerful, since it is these states whose interests will be considered
to be paramount in the formation of new rules. It is also these states
who are best equipped to enforce those rules of international law that
they care most about, because the countermeasures they adopt, in
the decentralized tj^e of enforcement that international law depends
on for its effectiveness, are generally more effective than those that
weaker or smaller states would like to take—and often cannot. Nor
is the conclusion of treaties a particularly promising alternative to
the rules of general international law that would apply by default, as
clearly illustrated by the case of investment treaties (Guzman 1998;
Hallward-Driemeier 2003; see, however, Yackee 2008a and 2008b):
the smaller a state’s economy, the weaker its bargaining position in
trade negotiations or in negotiations that define the balance of rights
and obligations between the state and the investor of the other party.
As noted by Christian Barry under the explicit title “The Unattractive
Alternative: Bilateral Bullying,” “a world without global institutions or
vdth only weakened institutions is not an attractive prospect. Powerful
countries will do their very best to ‘divide and rule’ weaker and poorer
countries, bullying them in ways that could be difficult to resist, unless
these countries acted collectively” (Barry 2006, 534).

A third argument in favor of strengthening national-level deci-
sion-making rather than improving global institutions is based on the
fact that we would be lacking a convincing metric at global level allow-
ing us to judge the equity of existing arrangements, because different
societies hold very different views about the requirements of (substan-
tive) justice or even (procedural) fairness (David Miller’s [2007] work is
representative of this view).

The response here is that we do in fact have a “global metric”
that transcends national sensitivities and that allows us to assess the
fairness of global regimes. That metric is universally recognized human
rights. Indeed, our best chance may be to move human rights beyond
the position they now occupy—as norms that impose duties that a state

The Role of Human Rights in Shaping International Regulatory Regimes 801

owes to its population under (relatively weak) international supervi-
sion—to what, in fact, was the position they were originally occupying
in international law: the position of the lodestar, defining the objective
that all international regimes should contribute to fulfilhng.

For the reasons just indicated, the status quo is untenable for poor
countries. International law has been developing without them and
sometimes against them, and the current international regimes are not
sufficientiy supportive of their efforts at improving their condition. The
opportunity, however, is that interdependency is mutual, and the status
quo is also untenable for rich countties: the new fears of today—from
failed states where ttansnational crime can operate to climate change,
from the dwindling of natural resources to “unfair competition” from
jurisdictions with lax labor or environmental standards—are fears that
can only be addressed by more international cooperation, not by unilat-
eral action. In fact, rich countries collectively have a considerable interest
in reducing poverty in developing countries. This will reduce population
growth and the resulting pressure on natural resources; it will mean
growing markets to which to export; it will mean improved governance
and a sttonger ability to tackle international crimes; and it will mean
reducing the temptation for poor countries to seek their comparative
advantage on global markets in low standards and low wages rather than
in the production of goods and the provision of services that allow them
to diversify their economies. But while the promotion of development
is in the collective interest of rich countries, no individual rich country
has an interest in working toward this alone. It is cheaper, and easier, to
ride freely on the efforts of others. Human development objectives and
human rights are global public goods and we must draw the institutional
consequences ofthat fact. As Barry (2006) has noted, we must accept the
duty of global institutional reform.

THE ROLE OF HUMAN RIGHTS IN SHAPING
INTERNATIONAL REGIMES: THE ROME MODEL
Reshaping international regimes so they converge toward the full
reahzation of human rights corresponds, in fact, to what is required

802 social research

by the right to development. The idea of a right to development was
first expressed by Kéba M’Baye in his 1972 inaugural lecture to the
International Institute for Human Rights. It was then explored in a
detailed study authored by Philip Alston for the UN secretary-general
in 1978, prepared at the request of the Commission on Human Rights.’
The study emphasized both that measures adopted at domestic and
the international levels should be mutually supportive and should go
hand in hand, and that the realization of the right to development
should be based on participation at all levels. In 1986, after five years of
discussions within a working group established by the Commission on
Human Rights, the UN General Assembly adopted the Declaration on
the Right to Development, defining it as “an inalienable human right
by virtue of which every human person and all peoples are entitled to
participate in, contribute to, and enjoy economic, social, cultural and
political development, in which all human rights and fundamental
freedoms can be fully realized.”^ Since then, various working groups,
task forces, and independent experts have been trying to identify ways
to overcome obstacles to the realization of the right to development
and to define criteria that would allow the measurement of progress
toward its fiilfilment. It is unnecessary here to recount this history in
detail (see Marks 2011): whichever advances were made stumbled on
the apparently insurmountable oppositions between rich and poor
countries on issues such as the need for a new international instrument
or the use of indicators. We need not abandon the vision of the right to
development. But we may need to redefine how to get there.

Three components, I suggest, could define the way forward. First,
there is the substantive component: the reference to human rights and
the use of indicators based on human rights to measure progress done
both at national and at international levels. Second, there is the institu-
tional component: the establishment of fora where all relevant actors
could strengthen coordination in order to ensure that the policies they
adopt converge toward the full realization of human rights. Third, there
is the governance component: the adoption of action plans that ensure
that we make progress, at reasonable speed, toward that objective.

The Role of Human Rights in Shaping International Regulatory Reginnes 803

The Substantive Component

First we need to reestablish human rights as the reference through
which we measure progress at the national and international levels.
This means relying on human rights indicators rather than, for
instance, macroeconomic indicators or development indicators alone.
To a large extent this is already the task performed by various human
rights bodies and experts; building on what exists should therefore be
achievable. Where more needs to done, however, is in bringing about
the position shift referred to above, from human rights imposing
duties on states toward their populations to human rights reshaping
the international regimes. This means identifying which human rights
duties can be imposed on international organizations, both within and
outside the United Nations system, and developing mechanisms that
can hold them accountable (Wouters et al. 2010). It means develop-
ing tools to ensure that transnational corporations are aware of their
human rights responsibilities (De Schutter 2006). And it means ensur-
ing that states comply not only with their human rights obligations
toward individuals and groups on their national territory, but also vwth
their so-called “extraterritorial” human rights obligations.

Over the past 10 years, significant progress has been made on all
these fronts. International organizations are increasingly developing
mechanisms to ensure their accountability toward human rights, and
the independent experts of the Human Rights Council have occasionally
contributed to ensuring that international organizations take human
rights into account in their operations. Transnational corporations are
aware that they are now expected to respect human rights and ensure
that they have a positive impact on the realization of those rights: the
OECD Guidelines on Multinational Enterprises were revised in 2000
and again in 2011 in order to refer to human rights, to which they now
dedicate a detailed section; and the Human Rights Council has adopted
a set of Principles on Business and Human Rights, implementing the
fiamework proposed by the special representative of the UN secretary-
general on the issue of human rights and transnational corporations
and other business enterprises. Most recently, on September 28, 2011,

804 social research

a group of experts adopted the Maastricht Principles on Extraterritorial
Obligations of States in the area of Economic, Social, and Cultural
Rights. These principles contribute to the progressive development of
the international law of human rights by clarifying the human rights
obligations of states both as they relate to their conduct that produces
effects on the enjoyment of human rights outside of the states’ territo-
ries and as they relate to “obligations of a global character that are set
out in the Charter of the United Nations and human rights instruments
to take action, separately, and jointly through international coopera-
tion, to realize human rights universally” (Maastricht Principles 2011).
It is also to this enterprise that the Guiding Principles on Human Rights
Impact Assessments of Trade and Investment Agreements seek to
contribute (De Schutter 2011c): while human rights treaty bodies as
well as independent experts of the Human Rights Council have regu-
larly called on states to prepare human rights impact assessments of
the trade and investment agreements that they conclude, emphasiz-
ing that states should take into account their human rights obligations
when negotiating or ratifying such agreements, the guiding principles
aim at providing guidance as to how to go about preparing such assess-
ments, focusing on the methodological and procedural aspects.

As these norms and procedures develop, human rights gradually
can turn into what Buchanan and Keohane call a “global public stan-
dard” to assess the normative legitimacy of global governance institu-
tions—that is, the “right to rule” of these institutions, which cannot
ensure compliance with their decisions unless they are perceived
as legitimate by those, including states, to whom such decisions are
addressed.^

Even apart from the preeminent position that they occupy in
the original project of the United Nations, human rights possess three
features that make them particularly suited to this goal. First, they
are relatively incomplete. They are sufficiently precise to provide a focal
point (on this notion see Schelling 1960, chap. 3) for deliberations as to
how to build international regimes—how to regulate trade, how much
to protect foreign investors, or how to allocate the responsibilities in

The Role of Human Rights in Shaping International Regulatory Regimes 805

combating climate change—^yet they are vague enough not to preempt
the result of these deliberations. They thus allow true ovmership by
the actors, primarily states, who contribute to the establishment of
international regimes. As Buchanan and Keohane note, any standard
of legitimacy should allow for a “principled, informed deliberation
about moral issues into the standard of legitimacy itself” (2006, 421).
“Because what constitutes appropriate accountability is itself subject
to reasonable dispute, the legitimacy of global governance institutions
depends in part upon whether they operate in such a way as to facilitate
principled, factually informed deliberation about the terms of account-
ability” (427). That is precisely what human rights allow, at least as
adequately than other potential candidates such as, today, “sustainable
development,” “green grov^^h,” or “development goals.”

A second advantage of human rights is that they are both legal
rules, binding upon states and, in some respects, on nonstate actors, and
ideals. The legitimacy that human rights confer therefore includes the
element of legality without being reducible to that element. Human
rights are violated or they are complied with, but that simple dichot-
omy, which is the language of lawyers, never exhausts their signifi-
cance, for human rights can always be improved upon. Our quest for
the full realization of human rights is one in which we permanently
learn and test the means we use against the ends that human rights are
supposed to define.

A third advantage of human rights is that they effectively corre-
spond to the requirements of moral cosmopolitanism, the idea that
citizens in rich countries owe duties to those hving in poor countries.
Human rights are not simply norms that regulate the relationships
between states, built on states’ interests. Rather, they are the legal
embodiment of the idea that, as Thomas Pogge writes, “every human
being has a global stature as the ultimate unit of moral concern” (2002,
169). Human rights are held by each individual, wherever he or she
finds him- or herself to be, and all states are duty-bound to refrain
from conduct that might lead to a violation of the rights of that indi-
vidual. Because they can form the basis of an obligation to support each

806 social research

individual’s access to certain basic needs, a condition for the effective
enjojmient of human rights, human rights provide a foundation for a
duty of states to work collaboratively toward the fulfillment of these
basic needs—a foundation that is much more solid than, for instance,
those that David Miller puts forward in his National Responsibility and
Global justice, which are based on certain ethical intuitions rather than
on well-established legal norms.^”

The Institutional Component

A second component of this strategy consists in creating fora where
different international actors—goverrmients, of course, but also inter-
national agencies and transnational networks of civil society organiza-
tions—can work together to ensure that their pohcies converge rather
than undermine each others’ efforts. It is this kind of forum that has
been established following the global food price crisis of 2007-2008,
when the Committee of World Food Security (CFS) was transformed in
order to become, in the words of the document defining this reform,
“the foremost inclusive international and intergovernmental platform”
to combat hunger and malnutrition and realize the right to food for all
(Committee on World Food Security 2009, para. 4).” The CFS includes
as members all governments, which are encouraged to participate at
ministerial level, “insofar as possible representing a common, inter-
ministerial governmental position” (para. 9). Participants in the mech-
anism, which have the same rights as members except with respect
to voting and decision taking, include the representatives of UN agen-
cies and bodies with a specific mandate in the field of food security
and nutrition, along with representatives of other relevant UN system
bodies whose overall work is related to attaining food security, nutri-
tion, and the right to food, such as the Special Rapporteur on the Right
to Food, the Office of the High Commissioner on Human Rights, the
World Health Organization, UNICEF, the UN Development Program,
and the Standing Committee on Nutrition (SCN); civil society and
nongovernmental organizations; international agricultural research
systems; the World Bank, International Monetary Fund, regional devel-

The Role of Human Rights in Shaping International Regulatory Regimes 807

opment banks, and the WTO; and the private sector and philanthropic
foundations active in the area of food security (para. 11).

The CFS is expected to provide a platform for discussion and
coordination to strengthen collaborative action among its members
and participants; “promote greater policy convergence and coordi-
nation, including through the development of international strate-
gies and voluntary guidelines on food security and nutrition on the
basis of best practices, lessons learned from local experience, inputs
received from the national and regional levels, and expert advice
and opinions from different stakeholders”; and provide support and
advice to countries and regions (para. 5). In a second phase of its work,
it should, in particular, promote accountability by “developing an
innovative mechanism, including the definition of common indica-
tors, to monitor progress towards these agreed upon objectives and
actions” and develop a Global Strategic Framework for Food Security and

Nutrition, conceived as a ñexible, “rolling” document that can be regu-
larly updated on the basis of new information and new priorities “in
order to improve coordination and guide synchronized action by a
wide range of stakeholders” (para. 6). As advocated during the prepa-
ratory stages of the reform (Special Rapporteur on the Right to Food
2009), collective learning and monitoring for results are thus two key
aspects of the work of the CFS.

The Governance Component

A third component of a comprehensive strategy to ensure that interna-
tional regimes are gradually reshaped in accordance with the require-
ments of human rights consists in the adoption of action plans defining
a calender of actions to be taken, allocating responsibilities across
actors, and defining indicators allowing progress to be measured and
increasing accountability. This is what, in the context of the realization
of the right to food at a global level, the Global Strategic Framework for
Food Security and Nutrition should achieve. This matters because what is
needed is more than the ad hoc reaction to discrete violations of rights
by specific measures. What is needed is sustained effort to channel

808 social research

existing regimes in a direction more conducive to the full realization of
human rights. Action plans are a way to overcome the gap between the
“what” and the “how.” They are important not just for the end vision
they propose but for the identification of pathways toward that vision.
They bridge the gap between relatively small changes to the system
that, in isolation, are unable to make a significant difference, and
changes so broad that they seem impossible to achieve.

For such action plans to succeed, they should include appropri-
ate indicators and benchmarks and a monitoring of the choices made
by policymakers. This can constitute a powerñil incentive to integrate
long-term considerations into decision making, and to effectively imple-
ment the roadmap that has been agreed upon. It is always tempting
for the proponents of business as usual to dismiss as Utopian proposals
that are so far-reaching as to seem to be revolutionary in nature, and
to dismiss other proposals as so minor and insignificant that they vñW
not really make a difference. We must move beyond this false opposi-
tion. What matters is not each of the policy proposals considered in
isolation, whether reformist or more revolutionary. It is the pathway
that matters: the sequence of measures that, step by step, may lead to
gradually move beyond the existing fragmentation of international law
and of global governance.

Such action plans should not be seen simply as a new form of
rule-making, prescribing objectives and how to get there. They are also
a learning device. They should be permanently revised in the light of
the implementation problems faced by governments. In this iterative
process, in which implementation feeds back into the formulation of
guidelines set at global level, the tools that are recommended should
be gradually improved in order to achieve effective results; the very
definition of the objectives may have to be revisited; and the paradigms
under which actors operate shall, in time, be challenged and revised.
Learning and monitoring become indistinguishable in a process that
is both top-down and bottom-up, and in which any recommendations
addressed to states or other actors are provisional, formulated subject
to the reservation that other ways of making progress toward agreed-

The Role of Human Rights in Shaping International Regulatory Regimes 809

upon objectives may in fact be more appropriate in certain settings,
and that the objectives are amenable to

CONCLUSION
When human rights initially developed as a new branch of interna-
tional law, it was seen as introducing a Copemican revolution: through
human rights, international law was regulating the state-citizen rela-
tionships that hitherto were shielded almost entirely from interna-
tional scrutiny. We now need another Copernican revolution in the
three directions I have indicated: to make it possible for human rights
to guide the exercise of their powers by international organizations; to
ensure that transnational corporations use their influence to support
human rights; and to monitor the impact that measures adopted by
states have outside their national territory. We also need to develop
forms of coordination at the international level that have been discour-
aged by the specialization of regimes and organizations the recent past.
It is not enough to mitigate the negative impacts of fragmentation; we
must move toward improved convergence. And finally, we must be
impatient with the status quo. Guarding against violations of human
rights in the global economy will not do. We must plan a transition, and
gradually change the structure itself, piece by piece.

ACKNOWLEDGEMENT
This is an abridged written version of the kejmote address delivered to
the Human Rights and the Global Economy conference held at the New
School on November 9-10, 2011. The author is grateful to Arien Mack
and Sakiko Fukuda-Parr for having made this contribution possible.

NOTES

1. The United Nations Monetary and Financial Conference was held
in Bretton Woods, New Hampshire, on July 1-22, 1944, leading to
the establishment of the International Bank for Reconstruction and
Development (IBRD), the International Monetary Fund (IMF), and
the General Agreement on Tariffs and Trade (GATT). The United

810 social research

Nations Conference on International Organization took place in San
Francisco between April 25 and June 26, 1945, leading to the adop-
tion of the Charter of the United Nations.

2. The expression was coined by the economist John Wilhamson, who
has since repudiated it (Wilhamson 1996).

3. The notion of a “Geneva consensus” was inaugurated by Pascal Lamy
in a speech he delivered in Santiago de Chile, on January 30, 2006
(http://www.wto.org/enghsh/news_e/sppl_e/sppll6_e.ht, accessed on
November 4, 2011). See also the speech of Pascal Lamy upon being
conferred the doctorate honoris causa by the University of Geneva
at its 450th anniversary on June 5, 2009 (http://www.wto.org/english/
news_e/sppl_e/sppll28_e.htm, accessed on November 4, 2011).

4. The UNFCCC was signed by 154 countries on June 12,1992. It entered
into force on March 21,1994 (1771 UNTS 107; 31ILM 851 (1992)). As
of December 2009, it had 192 states as parties.

5. See, e.g.. Annex B to the United States Model Bilateral Investment
Treaty (2004) (according to which “non-discriminatory regulatory
actions by a Party that are designed and applied to protect legiti-
mate public welfare objectives, such as public health, safety, and the
environment, do not constitute indirect expropriations,” as prohib-
ited under Article 6 [Expropriation and Compensation](l) of the
Model BIT: see Annex B, para. 4, (b)); or the Canadian Model Bilateral
Investment Treaty, Annex B.13(l), Article (l)(c) (providing a similar
interpretation of the prohibition on expropriation provided for in
Article 13 of the Model BIT).

6. It should be noted, however, that Richard Miller places his hopes not
on a sttengthening of domestic pohtical processes but rather on that
of global social movements: I return to this point below.

7. See UN (1979). The report is by Philip Alston but is presented in the
name of the UN secretary general.

8. UNGeneralAssembly,resolution41/128ofDecember4,1986(adopted
with only one negative vote [United States], and eight abstentions).

9. In their contribution, Buchanan and Keohane refer to himian rights
as one of the substantive criteria that are relevant in assessing the

The Role of Human Rights in Shaping International Regulatory Regimes 811

legitimacy of global institutions. Such institutions, they write, “must
not persist in committing serious injustices. If they do so, they are
not entitled to our support. On our view, the primary instance of a
serious injustice is the violation of human rights” (Buchanan and
Keohane 2006, 419). That refers to what they call the “minimal
moral acceptability” of global institutions. My position places the bar
higher: global governance institutions should be assessed primarily
by the contribution they make to the realization of human rights.
Buchanan and Keohane presumably would not accept that position
as overlapping with theirs, although they express some hesitation on
this point. They write.

For many global governance institutions, it is proper to
expect that they should respect human rights, but not that
they should play a major role in promoting human rights.
Nonetheless, a theory of legitimacy cannot ignore the fact
that in some cases the dispute over whether a global gover-

. nance institution is legitimate is in large part a disagree-
ment over whether it is worthy of support if it does not
actively promote human rights. A proposal for a standard of
legitimacy for global governance institutions must take
into account the fact that some of these institutions play a
more direct and substantial role in securing human rights
than others (Buchanan and Keohane 2006, 420 (emphasis
added).

10. David Miller notes that there are three channels through which citi-
zens of rich nations may be said to have responsibilities toward the
global poor: the remedying of past injustices, such as those stemming
from the colonial period; the inequity of the current terms of coop-
eration between nations, which increase inequalities rather than
abohshing them; and “the bare fact of poverty itself, independently
of any prior interaction between rich and poor countries” (Miller
2007, 249).

812 social research

11. The full quote is:

The reformed CFS [will be] the foremost inclusive interna-
tional and intergovernmental platform for a broad range of
committed stakeholders to work together in a coordinated
manner and in support of country-led processes towards
the ehmination of hunger and ensuring food security and
nutrition for all human beings. The CFS will strive for a
world free from hunger where countries implement the
voluntary guidelines for the progressive realization of
the right to adequate food in the context of national food
security.

The voluntary guidelines were adopted on November 23, 2004,
by the Council of the FAO, following two years of negotiations in an
intergovernmental working group of the CFS. They provide a detailed
set of recommendations to states as to how to move toward the full
realization of the human right to adequate food.

12. There is an ample literature on learning in organizations on
which this paragraph draws, and to which my contribution to the
reform process of the CFS was heavily indebted (for a review. De
Schutter and Lenoble 2010; for an illustration of the how such an
approach can shed light on the approach of an international orga-
nization, see Sabel and Zeitlin 2010). While learning can consist
in one actor simply improving the instruments he uses to pursue
certain objectives, “double-loop” learning consists in the objec-
tives themselves being re-examined (ArgjTis 1976, 1982); “triple-
loop” learning would consist in an actor rethinking the core
values by which he defines his identity and project (Swieringa and
Wierdsma 1992).

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DOI 10.2753/PIN1099-9922120301

Rethinking
Nonintervention
The Challenge of the
UN Charter and
Protecting the Dispossessed

Dave O. Benjamin

abstract

Nonintervention remains axiomatic in affirming the sovereignty of the state and is
underscored by Article 2(4)(7) of the UN Charter. Recent episodes of crimes against
humanity and genocide have revealed the glaring inadequacy of nonintervention and
the enormous challenge posed by the Charter. Furthermore, the seeming inability of
the Security Council to act on manmade disasters historically has undermined the
authority and ability of the UN to live up to the title of the Preamble to the Charter:
“We the Peoples.” A more recent rethinking of the concept of sovereignty lays bare
the inadequacies of Article 2(4)(7) as protector of the nation-state from interference
and intervention. This paper addresses the question of nonintervention, contend-
ing that there is scope for reinterpreting the Article and placing greater demands
on the Security Council through nongovernmental organizations that increasingly
represent the dispossessed.

More than a decade after the signing of the Rome Statute in July 1998, there seems
to be even less political will to investigate allegations and evidence of crimes against
humanity and prosecute those alleged to be responsible for such crimes. The ability
of the international community to achieve enforcement of international humanitar-
ian law has been hampered by a number of factors: the unwillingness of key states,
especially the United States, China, and India, to ratify the Rome Statute; shifts
in state policies and laws that have exacerbated violations of international human
rights and humanitarian law; and a failure to impose sanctions on states that would
pressure governments to hand over those accused of crimes against humanity to the
International Criminal Court for prosecution.

Human rights violations, especially against women and children, are more preva-
lent. The United Nations Security Council, long bolstered by the Permanent Five
(the United States, Russia, China, France, and the United Kingdom, also known as
the P-5) and the veto, has failed to act to prevent or stop genocide.

The international community is increasingly accepting the principle that the con-

Research Articles

202 • p u B l i c i n t e g r i t y summer 2010

Dave O. Benjamin

ventional definition of sovereignty is flawed. The notion that sovereignty is inviolable
is flawed. At one level of analysis, there is a reliance on a measure of neutrality in
international law in setting out criteria for statehood that can be applied universally.
At another level, there is an almost Machiavellian notion that the state does all it can
to protect its people but has a duty to keep the nation together even if that means
permitting acts of cruelty against the people by those who govern.

The dawn of the millennium saw the adoption of two landmark principles by the
United Nations: first, that the state is not an abstraction that is entitled to protection
in international law in all circumstances; second, that the most basic measure of
the sovereignty of the people rests in the material well-being of the population. The
outcome has been two constructs: human security, and the Millennium Development
Goals (MDGs). The notion that state sovereignty, as defined in customary interna-
tional law and the Montevideo Convention 1933, is a largely abstract set of principles
that subsume the responsibility of those who hold power to the sovereign will of
the people is supported by Kofi Annan’s (1999) “Two Concepts of Sovereignty.”
Human security and the MDGs are a response to the failure of the concept of state
sovereignty in customary international law and the Montevideo Convention.

This study contends that Article 2(4)(7) of the UN Charter is fundamentally
flawed. It presumes a construct of the state and sovereignty that is outmoded and
inapplicable to much of the postcolonial world. It is inconsistent with the long history
of intervention by permanent members of the Security Council in the internal affairs
of postcolonial states, and disregards humanitarian intervention by nongovernmental
organizations. Finally, Article 2 precludes the imperative of intervention, especially
humanitarian intervention, in an era of ethnic and resource conflict in which the
victims are countless civilians who are murdered, raped, and maimed in pursuit of
absolute political power and wealth. The following section examines evolving con-
cepts of security and sovereignty, and introduces the “responsibility to protect.”

Background

This section addresses the background to the contemporary discourse about humani-
tarian intervention in the context of a definition of sovereignty that goes beyond law,
the complementary and contrasting roles played by the UN and nongovernmental
organizations (NGOs) in protecting the vulnerable, and the historical failure of
the UN Security Council to authorize humanitarian intervention, especially where
genocide is either being planned or in progress.

Former UN secretary-general Kofi Annan (1999) proposed two concepts of sover-
eignty: one a theoretical, abstract Western concept that sees the state as a sovereign
entity with institutions that attend to its longevity and political succession; the other
a notion of the responsibility to the sovereign people of those who govern in the
name of state and people to protect the people from the excesses of the state. The
Machiavellian right of the state to act without restriction has thus been replaced by
the responsibility of the state to its citizens.

The Annan thesis was been built upon by the reports of a succession of UN-
sponsored international commissions and conferences. For example, a conference
of NGOs hosted by the UN Department of Public Information in September 2003
devoted its proceedings and report to human security. The Commission on Human
Security defines human security as “freedom from want and freedom from fear”

Rethinking Nonintervention

p u B l i c i n t e g r i t y summer 2010 • 203

(2003, 10). To the secretary-general and his team, human security derived from the
notion that political and economic rights are intertwined with meeting the basic
needs of humans—food, clothing, shelter, water, employment, and, of course,
protection from the state.

The Report of the High Level Panel on Threats, Challenges and Change called
attention to the immense challenge facing the international community:

Collective security institutions have proved particularly poor at meeting the challenge
posed by large scale, gross human rights abuses and genocide. This is a normative
challenge to the United Nations: the concept of State and international responsibility
to protect civilians from the effects of war and human rights abuses has yet to truly
overcome the tension between the competing claims of sovereign inviolability and
the right to intervene. It is also an operational challenge: the challenge of stopping a
Government from killing its own civilians requires considerable military deployment
capacity. (Panyarachun et al. 2004, 18)

Beyond this, the report noted “growing” acceptance of the idea that “the issue is
not the right to intervene” of any state, but the “responsibility to protect” of every
state when it comes to people suffering from avoidable catastrophe—mass murder
and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation
and exposure to disease” (Panyarachun et al. 2004, 65). Carsten Stahn (2007, 100)
observes that the Security Council put meaning to this interpretation in Resolution
1674 (April 28, 2006), in which it endorsed the World Summit Outcome Document
regarding “the responsibility to protect populations from genocide, war crimes, eth-
nic cleansing and crimes against humanity.” It is worth noting, however, that there
has historically been a significant divide between the debates and resolutions of the
General Assembly and of the Security Council, especially given the dynamics of
power plays and the veto in the latter organ.

While the literature has focused on the material conditions that promote human
security, another reality exists: that the conditions of so many civilians are affected
by civil wars, including ethnic conflict and conflicts fueled by resources. Postconflict
issues have centered on the plight of child soldiers, the effects of land mines on civil-
ians, trafficking of women and children, and nation building after a catastrophic epi-
sode. There has been a notable failure on the part of intergovernmental organizations
to protect the dispossessed, especially during episodes of genocide, as occurred in
Rwanda in 1994 and at present in Sudan. The task of protecting the innocent has been
left, for the most part, to NGOs, from providing human and material resources for the
care of displaced persons to representing the dead and living in judicial processes.

Nongovernmental organizations have been placed at the forefront in gathering and
reporting evidence, especially statistical data, to the UN and the wider international
community, offering recommendations based on the needs of civilians, and capacity
building in civil society. The NGO community has amassed an impressive record of
accomplishments (Allen and Styan 2000). Most notable, and probably most widely
recognized, was the pivotal role played by NGOs in the negotiation of the Rome
Statute of the International Criminal Court. On this occasion the NGO community,
together with “like-minded” governments, impressed on the international community
the imperative of accountability and enforcement of international law on individual
political and military leaders for acts of commission and omission (Allen and Styan
2000; Forsythe 2006, 106; Wippman 2004).

204 • p u B l i c i n t e g r i t y summer 2010

Dave O. Benjamin

Therefore, while humanitarian intervention has not really occurred as foreseen
by the architects of the UN and the authors of the Charter, it is occurring through
NGOs, with tacit acceptance by governments in industrial and developing countries
and even the countries in which humanitarian crises are occurring.

A different school of thought contends that humanitarian intervention is open
to political and partisan ideological abuse. Jack Donnelly notes that, while noble,
“purely humanitarian intervention may threaten international order” by reintroducing
“human rights violations and humanitarian crises as legitimate subjects of interna-
tional conflict” (2002, 97). He argues a case against humanitarian intervention, even
as an exception, observing quite accurately that, throughout the cold war, both the
United States and the Soviet Union appealed to humanitarian intervention as jus-
tification for their incursions into either proxy or belligerent states, such as Korea,
Afghanistan, and Grenada. The thesis has merit. The declarations of humanitarian
crises in Korea in 1950 and Congo in 1960 were clearly motivated by the cold war.
The subsequent assassination of Lumumba by the Congolese army with the assistance
of the CIA made a powerful statement about the political will of the United States
to use humanitarian intervention to overthrow and execute a third world leader who
was considered a threat to U.S. and European hegemony (De Witte 2001). Clearly,
therefore, there is a history of Article 2(4)(7) being invoked in military expeditions
that have less to do with humanitarian intervention and assistance than with super-
power expansion. In contrast, there was an unwillingness to take action in instances
of genocide and other crimes against humanity such as in Cambodia.

Thus, state sovereignty has been radically redefined in the last decade, from the
unlimited power and authority of the state to a responsibility to protect its citizenry.
Humanitarian intervention, although necessary, has been given conservative treat-
ment by the UN. The main obstacle, as the Security Council has seen it, is Article
2, paragraph 7, of the Charter, which asserts state sovereignty. While the UN has
resisted humanitarian intervention, NGOs have been active in both advocacy and
operations, although their work does not substitute for the moral authority of the
UN. The section below examines humanitarian intervention in international law and
historical application. It challenges the notion that the United Nations has resorted
to humanitarian intervention to promote international peace and security.

Humanitarian intervention

There are a number of definitions of humanitarian intervention. Almost invariably,
they revert to the debate about the sovereignty of the state, the inviolability of the
territory of the state, and the right of self-determination (Held 2002). However,
the accepted wisdom has long been that humanitarian intervention occurs when a
government, holding the powers of the state and representing the sovereign people,
fails to protect the people. Ellery Stowell defines humanitarian intervention as “the
reliance upon force for the justifiable purpose of protecting the inhabitants of another
state from treatment which is so arbitrary and persistently abusive as to exceed the
limits of that authority within which the sovereign is presumed to act with reason
and justice” (1921, 53).

This definition has two problems. First, it views humanitarian action as essen-
tially a bilateral issue, which is not the norm in the contemporary dispensation. The
other is that it necessitates the use of force. In the post–cold war era of multilateral

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humanitarian intervention, a certain political will holds that intervention is almost of
necessity avoidance of the use of force, peacemaking if possible, and the protection
of civilians and peacekeepers.1

Another definition of humanitarian intervention is propounded by Fernando
Tesón: “Proportionate trans-boundary help, including forcible help, provided by
governments to individuals in another state who are being denied basic human rights
and who themselves would be rationally willing to revolt against their oppressive
government” (1988, 5).

This definition is more compelling because it does not
regard the use of force as imperative. The use of force is
conditional upon a necessity, where help otherwise is not
possible. It also assumes that humanitarian intervention
is undertaken on a multilateral basis to assist communi-
ties that, if it were possible, would revolt against their
governments. Third, the communities are unable to revolt
precisely because of the oppression meted out by their governments.

Humanitarian intervention is therefore justified in a number of special circum-
stances: (1) an inability or unwillingness on the part of the government to defend its
people; (2) collusion between agents of the state and those responsible for crimes
against the population; (3) violent oppressive action by nonstate actors, without puni-
tive action taken by the state to repel such action; and (4) international knowledge
of the oppressive action by the state, agents of the state, or nonstate actors with the
collusion of the state.

The international community is therefore faced with a legal versus a moral chal-
lenge in resorting to humanitarian intervention. The imperative of intervening to
save lives is challenged by the principle of nonintervention enshrined in Article 2
of the Charter.

the legal vs. moral challenge

The fundamental challenge remains the paradox of legal vs. moral responsibility to
act. On the one hand, Article 2(4) and (7) of the Charter recognize state sovereignty
as inviolable and assert nonintervention in the internal affairs of states. This implies
prima facie that it is illegal for the UN to intervene “in matters which are essentially
within the domestic jurisdiction of any state,” even to protect the citizenry. Moreover,
Article 2(7) asserts that the UN cannot “require the Members to submit such matters
to settlement.” Of course, it is accepted that this principle was based on the notion
that every state accepted its responsibility to protect its nationals. On the other hand,
there is an accepted wisdom that the international community has a responsibility
to act to protect the most vulnerable. Article 39 of the Charter gives the Security
Council wide-sweeping authority “to determine the existence of any threat to the
peace, breach of the peace, or act of aggression” and, of course, the right of bind-
ing resolutions including agreeing to the use of force. Article 2(7) also contains a
proviso that state sovereignty “shall not prejudice the application of enforcement
measures under Chapter VII,” emphasizing that enforcement supersedes the right
of protection from noninterference and nonintervention.

The challenge arises when the international community, recognizing an imminent
humanitarian crisis, exercises the political will to intervene in the interests of the

The fundamental challenge
remains the paradox of
legal vs. moral responsibility
to act.

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dispossessed—the vulnerable civilians who are the victims of the crisis. This politi-
cal will has not been manifest on occasions when threats to international peace and
security have involved threats to the vulnerable, including the 1935–36 bombing of
Abyssinia by Italy, in the aftermath of which the League of Nations failed to take
punitive action against the aggressor; the Holocaust, when it appeared that there were
no enemies on the right, which included Nazi Germany (where the issue was German
territorial conquest, not the Holocaust); the 1975–79 genocide in Cambodia, which
was mired by the complexities of cold war geopolitics; the enormous crimes against
humanity in Zimbabwe in the early 1980s; and, of course, the genocide in Rwanda
in 1994, during which the UN actually pulled out 75 percent of its peacekeeping
mission. As the International Commission on Intervention and State Sovereignty
stated: “Rwanda in 1994 laid bare the full horror of inaction. The UN Secretariat
and some permanent members of the Security Council knew that officials connected
to the then government were planning genocide. . . . But the Security Council re-
fused to take the necessary action. That was a failure of international will—of civic
courage—at the highest level” (2001, 1).

Annan is more blunt. In referring to Rwanda, and to the Balkans immediately before
that, he said, “The international community clearly had the capacity to prevent these
events. But it lacked the will” (Annan 2004). Rwanda stands out because it occurred
after the end of the cold war, with a unipolar international system, and yet there was
considerable debate in the final analysis about the logistical cost to the five permanent
members of the Security Council (Moose 2004). There was even a reluctance at the
time to refer to the events in Rwanda as genocide—as George Moose (2004) put it,
“one of the most shameful failures that certainly rises right to the top—the fact that
it took us so long to come to what should have been a fairly obvious conclusion.”

The debate about morality and logistics aside, there is a real question about the
legality of humanitarian intervention. Ahmad Ajaj contends that

reading the Charter with an eye on the matter of the legality of humanitarian interven-
tion, one has to make a delicate choice: either people die because no-one has the right to
intervene in a sovereign state; or an intervention ought to take place. The first suggestion
is very hard to accept because it strips us of our humanity and degrades our civilization;
the second one is entirely dependent on whether or not intervention is to be undertaken
unilaterally or collectively under the auspices of the United Nations. (1993, 227)

The Security Council failed to take the initiative during the crisis in Korea in
1950, prompting the General Assembly to adopt the “Uniting for Peace” resolution
(UN General Assembly 1950). Both the Security Council and the General Assembly
failed to act during the crisis in Biafra in the 1960s, when the military in Nigeria
laid siege and effectively starved the people of Biafra into submission. Rwanda
was even more extreme. Yet the axiom that governed the notion of humanitarian
intervention when the UN was being founded was “Never Again,” referring to the
horror of the Holocaust.

Beyond the failure to act in humanitarian crises is the reality that so many coun-
tries in the international system do not satisfy the basic criteria of sovereignty (Aust
2005, 16; Higgins 1994, 39). Defined territory and conceptual nationality are offset
by the virtual nonexistence of any competent administration that enjoys a mandate
and is capable of delivering basic services to the people. Rather, there is evidence
of collapsed state institutions, warlordism, a gross failure on the part of those who

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hold political and military power to deliver benefits to the people, and a manifest
inability to protect the people, especially the most vulnerable, against aggression
by agents of the state.

Over the past fifteen years West Africa has been replete with examples of failed
states, warlordism, and crimes committed by agents of the state against civilian
populations. Far from the UN acting in defense of “We the Peoples,” as Annan put it
(Jentleson 2007, 19), private military contractors have been hired to install or depose
governments, placing civilians at the center of conflicts that are resource driven, and
warlords have killed, maimed, and tortured
the innocent in search of resources needed to
finance their wars. In many cases, the regimes
that were the cause of humanitarian crises
were proxies to superpowers that sought
spheres of influence, mineral resources, and
votes in the United Nations during the cold
war. In other cases, agents of change were as
violent in seeking and defending their objec-
tives as those they sought to depose. Decades of civil war, corruption and violent
rule, warlordism, and ethnic conflict have resulted in generations lost to poverty,
resource and territorial conflict, power struggles, and genocide.

The challenges faced by the international community are complicated by the new
emphasis on terrorism. In the process, critical issues such as wars for access to fossil
fuel and other mineral resources, humanitarian crises as in Sudan, the impact of the
floods across sub-Saharan Africa, trafficking in women and children, global poverty,
the increasing use of mercenaries by superpowers, and extraordinary rendition and
the use of secret prisons receive minimal debate and less coverage. One is left to
contemplate the degree of effectiveness with which the five permanent members of
the Security Council are likely to impose their will on the military junta in Burma/
Myanmar to transition to democracy and end the gross violation of human rights,
or to compel the government of Sudan to halt its collaboration with the Janjaweed
in the destruction of Darfurians.

There is a real question to be asked: Given the limitations of the legal authority
granted by Article 2 (4)(7) and Chapter VII of the UN Charter, and the moral impera-
tive that the vulnerable be protected by the international community, is there a case
for arguing that the international community does have an obligation to intervene
to protect the vulnerable and dispossessed? If it does, who sets out the mandate
and on what terms? Are representatives of the dispossessed and the state in which
intervention is to occur to be consulted? How and by whom?

While Article 2 limits intervention by the UN, intrastate conflict claims civilian
victims who have no means of self-defense. The issue is neither interstate conflict nor
noninterference but how the individual and the community can be protected against
the government, paramilitaries, and even mercenaries who act with impunity. This
calls for a paradigm shift in understanding the nature of conflict.

a paradigm shift

In many respects, a paradigm shift has occurred. While realists may contend that
the international system is based on states competing for power in a hierarchy, and

Decades of civil wars, corruption and
violent rule, warlordism, and ethnic
conflict have resulted in generations
lost to poverty, resource and territorial
conflict, power struggles, and genocide.

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the terms determining the place of a state in that hierarchy are based on war, the harsh
reality is that the Eurocentric concept of nation-statehood is largely irrelevant to the
existence of much of the population of the world. The increasing alienation between
state and individual and between state and community is indicative of the reality that
the abstract state has been replaced by a self-appointed government that abuses its
people in order for the members of the government to acquire wealth and absolute
power. Alliances between these quasi-states (Jackson 1990) and the superpowers
that are the five permanent members of the Security Council increasingly alienate
the sovereign people and, more especially, the most vulnerable in society.

Modern conflict is often not between and among states. Rather it falls into one
or another of four main categories:

• conflicts between states and “shadowy networks of individuals” (White
House 2002) who are involved with broader nonstate groups

• conflicts between the government and the citizenry, not necessarily civil war
• conflicts between nonstate actors and civilians where transnational

corporations seek collusion of mercenaries, governments, or nonstate actors
to further their economic ambitions (e.g., Zaire in the later days of Mobutu,
or the adventures of the private military company Executive Outcomes in
Sierra Leone in the early 1990s, or, for that matter, the events that led up the
execution of leaders of the Ogoni people in Nigeria in 1993)

• conflicts between or among warlords in which civilians are the direct targets
(e.g., Liberia and Somalia)

There is need for a new paradigm shift, a recognition that the inability of the
government—the state in the Eurocentric construct—to legitimately protect all
its citizens represents a fundamental loss of sovereignty that leads ultimately
to chaos and anarchy or, worse, the use of the resources of the state against
the vulnerable in society. It is therefore imperative that the international com-
munity act, not in defense of the government—the quasi-state—but in defense
of the vulnerable who become the targets of the military and police apparatus
of the government. An inability to protect the vulnerable represents not even a
gross violation, but a clear dereliction of duty. If the apparatus of the govern-
ment is not willing or able to protect the innocent, the international community
needs to do so—at the level of self-interest if nothing else, just so the industrial
countries do not have to accept hordes of people seeking refugee status. The
international community cannot afford to be blind as it was in the 1960s during
the Biafra crisis (when ignorance of the event could have been presented as a
defense), or worse, as it was during the Rwanda genocide (known worldwide),
or Sudan today.

International law has progressed significantly since the end of World War II.
Myriad conventions and treaties intended to protect civilians during peace and
conflict have been ratified, but they have proved largely ineffectual.

public international law

The universal application of public international law has evolved since 1945 through
a number of treaties and conventions, including the UN Charter 1945, the Universal
Declaration of Human Rights 1948, the Geneva Conventions 1949, the Genocide

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Convention 1949, the Convention on the Rights of the Child 1989, and the Rome
Statute. Arguably, these conventions aimed at setting down universal standards and
codes of conduct for states and individuals in peace and wartime. They are also
intended to hold all governments, political leaders, and military commanders and
officers responsible for their actions in relation to civilians and combatants alike. The
Helsinki Final Act 1975 “was a complex compromise between the Soviet desire for
recognition of its hegemony in Eastern Europe and Western desire for an international
codification of human rights among other things” (“A Caviar Ending” 1977).

The culmination of these legal instruments is found in the Rome Statute, which
came into effect in 2002. It created the International Criminal Court, which tries
individual political leaders and public officials, military commanders, and rank-
and-file military personnel for acts of commission and omission (ICC 1998). As
Brownlie observes, there are four categories of binding multilateral conventions
protecting human rights:

• the two “comprehensive” International Covenants on Economic, Social, and
Cultural Rights, and on Civil and Political Rights, adopted in 1966

• the comprehensive regional conventions: the European Convention on
Human Rights 1950, the American Convention on Human Rights 1969, and
the African Charter on Human and Peoples’ Rights 1981

• the conventions prohibiting specific wrongs: genocide, torture, and racial
discrimination

• conventions protecting the rights of specific categories of people: women,
children, refugees, and migrant workers (Brownlie 2003, 536; Gurowitz
2004)

Although signatories are obligated to abide by the principles outlined in these
conventions and treaties, there are caveats about the functioning of all of them. First,
public knowledge of the commission of crimes: Only when there is public knowl-
edge, and the pressure of public activism, is prosecution likely to occur. Moreover,
knowledge is often not sufficient, as in the case of an unnamed U.S. Marine Corps
corporal who was not court-martialed for executing an unarmed Iraqi at a mosque in
Fallujah, Iraq, in 2004 (Chadwick 2005). On another occasion, a group of marines
was charged with the murder of twenty-four Iraqis in 2005, chiefly because of re-
porting of the incident by the media (Whitaker 2007). The other caveat involves the
use of private military contractors, or mercenaries, in combat operations. According
to Protocol I to the Geneva Conventions:

A mercenary is any person who: (a) is specially recruited locally or abroad in order
to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is
motivated to take part in the hostilities essentially by the desire for private gain and,
in fact, is promised, by or on behalf of a Party to the conflict, material compensation
substantially in excess of that promised or paid to combatants of similar ranks and func-
tions in the armed forces of that Party; (d) is neither a national of a Party to the conflict
nor a resident of territory controlled by a Party to the conflict; (e) is not a member of
the armed forces of a Party to the conflict; and (f) has not been sent by a State which is
not a Party to the conflict on official duty as a member of its armed forces. (ICRC 1977)

A mercenary is therefore an unlawful combatant and does not enjoy the protec-
tions granted to lawful combatants. A mercenary does not fulfill the basic criteria
for identification as a lawful combatant:

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• being commanded by a person responsible for his subordinates
• having a fixed distinctive sign recognizable at a distance
• carrying arms openly
• conducting operations in accordance with the laws and customs of war.

(Roberts and Guelff 2000, 202)

Mercenaries are not agents of either the state or any resistance to conflict in in-
ternational law and are therefore not entitled to the protections afforded the state
military apparatus or volunteer corps that are banded together in defense of the
state or nation.

Yet mercenaries are granted license to act without restraint because they will
not be held responsible under any national or international code of conduct or op-
erations. Antonio Cassese summarizes the debate about the status of mercenaries
using the 1970s, when “the number of mercenaries became conspicuously large in
Africa, where they were used both by the ruling elites (for internal security, intel-
ligence, the training of special commandos, etc.) and by foreign powers as tools for
organizing or strengthening movements to destabilize African regimes” (Cassese
2001, 333). The African states regarded them as unlawful combatants, while the
West regarded them as lawful combatants entitled to the protection of the Geneva
Conventions. The Protocol represented a compromise with significant concessions
on the part of the West. Today the involvement of mercenaries in conflict and the
implications for protection of civilians is manifest in Iraq where the United States
has contracted a number of companies to supplement and replace the U.S. military
in operations (Singer 2003).

To date, public international law has not caught up with the transition from the old
style of mercenary activity to the use of military contractors by states to represent
either public or private interests in conflict. Mercenaries, like paramilitaries led by
warlords, target civilians without fear of prosecution under international humanitar-
ian law. This is especially the case where ethnic conflict prevails.

the reality of ethnic conflict

Ethnic, including religious, conflict is nothing new. It is, however, having a dra-
matic impact today. This may be because of the communications revolution that
has brought conflict to the home of the civilian in real time, thanks to satellites and
on-site reporters. There is also greater public outrage both at ethnic conflict and
at the seeming failure of the international community to respond in defense of the
vulnerable. Social activism has cut across ethnic, religious, and even class lines to
demand an end to conflicts, episodes of genocide, and crimes against humanity,
irrespective of the culprits and collaborators.

Ethnic conflict is exacerbated by economic issues: resource endowment, resource
depletion, failure of economic programs, the manifest absence of economic pro-
grams altogether. It is also a catalyst for corruption and malfeasance, authoritarian
rule, and absolute dictatorship. The language of genocide is often heard—referring
to subject peoples in dehumanizing terms—to justify their extermination and to
whip up support among the majority population. Ethnic conflict is indicative not
necessarily of secession, but of a major cleavage in society that has the potential to
fracture the geography of the state.

The international community faces an imperative, therefore. When the state is

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unable or unwilling to protect civilian populations, the UN is expected to intervene.
This, after all, is part of the mission of the organization in two respects: “We the
Peoples” and “Never Again.”

the responsibility to protect

The international community has a duty to protect the vulnerable. According to the
International Commission on Intervention and State Sovereignty, the “responsibility
to protect” clause implies that “The principle of non-intervention in internal affairs
cannot be used to protect genocidal acts or other atrocities,” because there is a “col-
lective international responsibility to protect populations from genocide, war crimes,
ethnic cleansing, and crimes against humanity” (Jentleson 2007, 20).

The notion that Article 2(4) and (7) of the UN Charter offer protection to the
state such that the government can act with impunity against its people, especially
when the state does not exist as a collective of political, economic, and legislative
institutions capable of guaranteeing protections to the people against abuse of the
instruments of coercion of the state represents at best a misconstruction of the intent
of those sections of the charter. At worst, it is a recipe for collaboration between the
international community, which swore “never again,” and those who hold office and
are directing the resources and apparatus of the government against the sovereign
people. Beyond this, it is clear that there is an implied loss of sovereignty when the
state is unable to guarantee protection of its population.

The challenge of Article 2(4) and (7) has deeper implications. Thomas Fues (2005)
condenses the “deficits in legitimacy”—the undercutting of the moral authority of
the UN—as follows:

• dictatorships and unlawful regimes enjoy the same rights as democracies
(e.g., Zimbabwe and Sudan)

• the UN is an organization not of abstract states but of real governments,
even those that show little regard for principles such as accountability and
transparency

• the UN is a collective of member states whose governments pursue their
national interests in and through the organization

• the Security Council has supranational powers that members of the UN
willingly agreed to on acceeding to membership

The UN, therefore, has to be more resolute in making a distinction between states
that live up to the responsibility to protect their populations and those that do not
but expect that the UN will not interfere in their internal affairs.

Former secretary-general Annan has observed that the UN Charter is an agreement
among governments on behalf of the peoples of the world; hence the declaration “We
the Peoples” (Annan 1999). Beyond this, the responsibility of the UN to preserve
international peace and security has to be interpreted broadly. If there is a natural
disaster in a member state and its government is incapable of meeting the needs of
the people, the government asks the UN for humanitarian assistance. If the govern-
ment of a member state fails to observe some standard accepted by the international
community as a norm (by virtue of the many conventions asserting the rights of
civilians, children, women, ethnic and religious groups, and any other groupings
that may be targeted), there is going to be a “knock-on” effect on bordering states.

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Displaced persons will seek the protection of neighboring states, imposing spatial
and resource pressures on that state. There is, therefore, an impact on international
peace and security. The UN is thereby required to act in defense of those who are
targeted by their government or groups supported by the government. Ellery Stowell,
writing on the eve of the Holocaust, asserted: “When . . . the conduct of a state, not
excused by some untoward event like revolution or civil war, constitutes, on the part
of the responsible government a deliberate violation of that minimum of security and
justice to which every individual in a civilized community is entitled, it becomes the
right and the duty of other states to intervene in so far as it is practicable to prevent
or lessen such severities” (1939, 734). Annan has been equally direct: “The sover-

eignty of states must no longer be used as a
shield for gross violations of human rights”
(Evans 2004).

Negotiating with an oppressive regime
for access to target populations defeats the
very ethos of the United Nations with regard
to humanitarian intervention. Target popula-
tions are dehumanized and isolated, and the
signal sent to the international community is
that the problem is being dealt with. Target
populations are referred to as blight on the
landscape that will be remedied by further

isolation, dislocation, or death. This makes the notion of negotiating access coun-
terproductive. As Bronwyn Leebaw puts it, “The idea of negotiating with leaders
for access to civilian populations makes little sense when the primary goal of those
leaders is to murder civilians” (2007, 227).

There is no compulsion on the part of the international community to recognize a
government that does not hold a mandate accepted by the United Nations. Although
the Khmer Rouge held political power in Cambodia during the 1970s, the UN rec-
ognized Prince Sihanouk as the legitimate ruler and, thereby, granted him the seat at
the United Nations. The UN also suspended South Africa during apartheid. At one
level this could be construed as intervention in the internal affairs of a member state
and, therefore, a violation of Article 2(4) and (7). At another level, the international
community deemed apartheid sufficiently objectionable that it resolved to suspend
South Africa from membership.

The responsibility to protect is based on a notion that member states, having
voluntarily agreed to the rights and obligations of membership in the UN, commit
themselves to living up to the duties of members. Included is the duty to protect
the citizens of states on a collective and mutual basis. States and governments are
recognized as custodians of the peoples of the world. Inasmuch as the UN has
responsibility for protection and preservation of international peace and security—
generally regarded as conflicts between and among states—it has a responsibility
to protect the peoples of states from acts by the state and agents thereof that are
injurious to communities. To that extent, Article 39 of the Charter clearly extends
to the Security Council the authority to “determine the existence of any threat to the
peace, breach of the peace, [and to] make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain or restore interna-
tional peace and security.” The obvious harm done to civilians, including death and

Ethnic conflict is exacerbated by
economic issues: resource endowment,
resource depletion, failure of economic
programs, or a manifest absence of
economic programs altogether. It is
also a catalyst for corruption and
malfeasance, authoritarian rule and
absolute dictatorship.

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dislocation, combined with the movement of civilians across borders, constitutes a
threat to international peace and security. The arming of governments and extremist
organizations—as the French armed the Hutu in Rwanda in 1994—constitutes an
even greater threat to international peace and security (McNulty 2000).

Moreover, much has been said and written about punishment for crimes against
humanity including genocide. The UN Genocide Convention 1948 sought to address
prevention, but did not lay out a platform for either prevention or punishment. The
Rome Statute of the International Criminal Court lays out a set of procedures for
investigation, prosecution, and punishment of those responsible for crimes against
humanity. However, the central issue remains that tens of thousands or millions of
innocent people have to die in order for investigations and prosecutions to occur.
Neither the Genocide Convention nor the Rome Statute 2002 makes provision for
the prevention of crimes against humanity including genocide (Fowler 2003). This
leaves a central conclusion: that whereas punishment—including investigation and
prosecution—is essentially a legal action, prevention is based on a moral impera-
tive. This leads to the conclusion that there is no requirement that states pursue
humanitarian intervention as a legal action beyond the provisions of the UN Charter.
Moreover, if, as in the Clinton administration, there is no political will to use the term
“genocide,” states can absolve themselves of responsibility to act and consequent
responsibility for failure to act.

Furthermore, crimes against humanity are often associated with state collapse,
whether current or impending, actual or potential. The Charter places no legal
obligation on the community of states to keep collapsing or collapsed states to-
gether. Recognition of Kosovo by the United States and some European powers,
contrasted by the refusal of Russia to do likewise, makes the point that there is no
binding obligation on UN member states, and certainly not on the P-5, to recog-
nize new states. By the same token, there is no obligation to intervene to prevent
humanitarian crises, including crimes against humanity (Held 2002). That is one
of the reasons for the continued stalemate in Sudan, the involvement of the African
Union notwithstanding.

The burning question, then, as Gareth Evans has put it, is: “Is there” a “respon-
sibility to protect?” (Evans and Sahnoun 2002). The International Commission on
Intervention and State Sovereignty proposed such a responsibility on the basis that
“millions of human beings remain at the mercy of civil wars, insurgencies, state
repression and state collapse” (ICISS 2001, 11). The commission further expressed
its belief that “the responsibility to protect implies an accompanying responsibil-
ity to prevent” (ibid., 19). The commission based its view on the implications of
localized conflict for international peace and security, a responsibility on the part
of the UN to act based on numerous General Assembly and Security Council reso-
lutions, and the report of the UN secretary-general, Prevention of Armed Conflict
(UN General Assembly 2001). At the very outset the report of the secretary-general
noted that “Conflict prevention is one of the primary obligations of Member States
set forth in the Charter of the United Nations, and United Nations efforts in conflict
prevention must be in conformity with the purposes and principles of the Charter.
Conflict prevention is also an activity best undertaken under Chapter VI of the
Charter” (ibid., 2).

However, the report qualified responsibility for prevention with national gov-
ernments primarily, and declared that the main role of the UN and the interna-

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tional community is “to support national efforts for conflict prevention and assist
in building national capacity in this field” (UN General Assembly 2001, 2). To
Secretary-General Annan, “the Charter provides the United Nations with a strong
mandate for preventing armed conflict” on two bases: Conflict prevention is more
cost-effective than post-conflict reconstruction; and peaceful prevention of conflict
preserves international peace and security, and is consistent with Article 2(3) of the
Charter (ibid., 9).

In 2003, the General Assembly essentially skirted the necessity of intervention
to prevent armed conflict and crimes against humanity by reaffirming support for
the Millennium Development Goals, the commitment of 0.7 percent of GNP in for-
eign assistance by developed countries, and the implementation of the Program of
Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light
Weapons. While reaffirming support for the Millennium Development Goals has a
certain appeal in principle, it is not a substitute for intervention to prevent human
catastrophe. The UN effort in Rwanda in 1994 failed not because of economic and
social conditions, but because the United Nations Observer Mission in Rwanda
(UNAMIR) was understaffed and ill-equipped. The memorandum from General
Dallaire to General Baril was ignored by the UN Secretariat and the Security Coun-
cil, and, rather than increasing the contingent, the Security Council drastically and
regrettably cut the peacekeeping force.

The responsibility to protect rests on three basic tenets: that there is a legal
obligation to act where a humanitarian crisis is in evidence; that there is a moral
responsibility to act, especially in the light of the post-Holocaust axiom “Never
Again”; and that failure to exercise the political will needed to save the lives of
the vulnerable and dispossessed might be regarded as a crime against humanity in
time to come.

First, Article 2 (7) of the Charter is unambiguous; while the state enjoys the right
of nonintervention, “this principle shall not prejudice the application of enforcement
measures under Chapter VII.” Article 39 is equally unambiguous in the authority it
gives to the Security Council to “determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or decide
what measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security.” The Council therefore enjoys a legal right
and responsibility to employ measures appropriate and necessary for the mainte-
nance or restoration of international peace and security. If the Council is satisfied
that peaceful means, including sanctions, are not successful, then it reserves the right
to “take such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the United
Nations.” It clearly enjoys an unchallenged right of the use of force to prevent an
international catastrophe given the emphasis placed on conflict prevention. Article
50 extends to the Council a right of preventive measures, clearly requiring that
peacekeepers be subscribed by member states.

Moreover, the Charter offers the perfect operational mechanism in resorting to
regional arrangements (Chapter VIII). Article 53 authorizes the Security Council,
“where appropriate, [to] utilize such regional arrangements or agencies for enforce-
ment action under its authority.” Regional organizations can be involved in dispute
settlement with the authority of the Council. While this may have been a concession

Rethinking Nonintervention

p u B l i c i n t e g r i t y summer 2010 • 215

to the Organization of American States when the Charter was being negotiated, it
has real application today when Africa is seeking to resolve its internal ethnic and
political issues.

Finally, the Charter authorizes the secretary-general to take the initiative in
informing the Security Council of threats to the international peace and security
(Article 99). Although the secretary-general was envisioned as a chief executive of
the UN, there is a history of holders of the office initiating programs and approaches
to issues that have been revolutionary in their time. Dag Hammarskjöld took the UN
into the development era chiefly because he was persuaded that development and
underdevelopment were the major issues of the day, not the cold war. Kofi Annan,
in his second term in office, sought to initiate a debate about human security that
yielded results in the Millennium Declaration and the Millennium Development
Goals. Conversely, the failure of the UN to act during the Rwanda genocide was as
much a blot on the copybook of Secretary-General Boutros Boutros-Ghali (and the
assistant secretary-general responsible for peacekeeping, Kofi Annan) as it was a
lack of political will on the part of the self-appointed P-5.

It is ironic that, while there has been a failure of political will on the part of gov-
ernments and of the UN as an institution, NGOs have succeeded in mobilizing the
vital human, technical, material, and financial resources in industrial and nonindus-
trial countries needed for humanitarian efforts in conflict zones, especially in cases
of conflict within states. The appointment of Bernard Kouchner, a co-founder of
Médecins Sans Frontières (Doctors Without Borders), as foreign minister of France
in 2007, it can be argued, is more than tacit acceptance of both the work and the
political will of NGOs, especially those involved in treating and assisting civilian
victims of manmade disasters.

conclusions

Nonintervention remains a contentious principle of public international law because
it continues to offer protection to regimes that do not protect their peoples. The
challenge posed by Article 2(4)(7) of the UN Charter is less real than theoretical,
because internal conflict that threatens the lives and safety of civilians, displacing
them in some way, is indicative of the collapse of the state in the first place. Fur-
thermore, a state that is unable to guarantee security of individual and community
is a failed or collapsed state, devoid of institutions of government and governance
that protect subject peoples from victimization and crimes against humanity. In such
circumstances, invocation of Article 2(4)(7) strains credulity.

Rather, the invocation of 2(4)(7) is indicative of the failure of political will, both in
the Security Council as an institution and among the nations of the P-5, which have
veto power. Despite precedent in “Uniting for Peace 1950,” the General Assembly
has also manifested a failure of political will in not calling on the Security Council
to authorize humanitarian intervention in internal civil conflict, especially crimes
against humanity and genocide. While political will was not absent in the Korea
and Congo incidents—largely an ideological matter—it was glaringly absent during
the Rwanda tragedy in 1994. The failure to act in Rwanda and now Sudan suggests
that the obstacle to effective action is not the legal instrument but the political will
of the five permanent members of the Security Council.

Finally, the notion of nonintervention in the internal affairs of the state is flawed

216 • p u B l i c i n t e g r i t y summer 2010

Dave O. Benjamin

at its root. It presupposes the existence of a nation-state bound by ideals and loy-
alties that transcend ethnicity, language, and the common history of the colonial
experience. Fractured states, devoid of institutions of government and governance,
with no binding agents, with genocidal regimes in power, are quasi-states that are
simply incapable of guaranteeing the physical security and safety of minority and
subject peoples. Such states cannot be held to the same standard as those with
institutions of government and governance, some measure of accountability and
transparency, and a concept of the responsibility to the sovereign people of those
who control the institutions of state and government. In such circumstances, Article
2(4)(7) becomes a legal instrument that protects genocidal regimes against their
own subject peoples.

nOte
1. There is recognition of fundamental flaws in the mandate that the Security Coun-

cil gave to UN peacekeepers in the Balkans in the early 1990s allowing Blue Berets to
defend themselves but not civilians through the use of force—this led to the debacle of
Srebrenica as a case in point.

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aBOut tHe autHOr
Dave O. Benjamin is assistant professor of international political economy and diplo-
macy at the University of Bridgeport. He received his B.A. Hons. degree in history from
Carleton University (1986), diploma in international relations from the University of the
West Indies (1987), M.Phil. in international relations from the University of Cambridge
(1988), and Ph.D. in international studies from the University of Cambridge (1999).
His articles include “Protecting the Protectors: NGO Action and the Responsibility to
Protect,” International Journal on World Peace (March 2009); “Implications of Mass
Terrorism for the Caribbean Community: The Case of Grenada,” University of the West
Indies (February 2002); and “Sudan and the Responsibility to Protect,” International
Journal of Human Rights (June 2010).

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