Tuesday, May 13, 2008

Neo Colonialism in Civil Society Clothing or the Rise of Human Dignity as the First Supra National Principle of International Law?

As the Burmese government continues to keep its borders tightly closed, the international community has increased the tempo and volume of its call for an intervention in Burma. U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. I have already suggested the way in which these calls for intervention without consent on the basis of a relatively new and potentially powerful international principle of "responsibility to protect" will begin to further shift the distribution of power between states and the "collective of states" currently operating within the United Nations framework. See Larry Catá Backer, Disaster in Burma: Bad Government Response, Worse Resort to International Law, Law at the End of the Day.

The nature of the international community's actions are revealing and provide a window on the shape of international law to come. That window provides a view that will be sure to discomfit people of all political shades. I summarize the most interesting parts of this future:

1. It seems that the old imperial powers remain at the forefront of international governance. "France, Germany and the UK said they would make the proposal to the UN Security Council, but acknowledged they did not have unanimous support from the EU, French Human Rights Minister Rama Yade told reporters in Brussels." U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. And, of course, the Americans are also seeking intervention. The difference between the old imperial powers and the Americans is that the former has learned well that the modern battlefields in the struggle for dominance lie in international fora and use the language of law and diplomacy. The Americans, a more traditional political culture, is still focusing on the battlefield when all else fails. The Europeans are looking to the long run, the Americans to the short run. For all that, it is not Cuba, Venezuela and Nicaragua, or even the nations of Southeast Asia that are seeking the invocation of collective intervention--it is the old imperial powers. That might trouble some. Might the "responsibility to protect" doctrine serve as a cover, another tool of intervention in the affairs of states whose leaders the elites in the developed world have come to loath? There seems to be no escape from domination for smaller states. In the 19th century, subordination came in the form of direct military power and the development of a system of colonialism and subordinating treaty relationships. In the 20th century, the community of nations substituted economic for military domination. In the 21sty century, the most powerful states will take it on themselves a power to determine under what circumstances their representatives may intervene for the good of the citizens of a particular state. Yet what is good for the goose is likely indigestible for the gander. The next time a hurricane destroys Louisiana it is doubtful that there will be anything like a successful effort to intervention in the face of American ineptness in relieving the sufferings of its residents.

2. But the old imperial powers are acting, not necessarily for themselves, but as proxy for the rising community of civil society organizations. These organizations have made it clear that they know best in what they do best--react to disasters. No institution, much less a political state--ought to stand in the way of their operation. "Aid agencies say much of the food and equipment is not getting to those who need it because the junta does not have the organisation to transport it." U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. The market for charity, it seems, appears to work in a manner similar to other markets. It is interesting to hear charitable organizations--organizations devoted to some cause or another--to speak in a way that echoes the discourse of leaders of large multinational corporations. The answer must lie in free movement of operations similar to the free movement of investment and trade behind the operations of large economic organizations. Elizabeth Byers, a spokesperson of the U.N.'s humanitarian apparatus in Geneva stated: ""We need a kind of air bridge or sea bridge, and huge means as... we did during the [2004 Asian] tsunami. It's the same kind of logistical operation. That's why it's urgently needed that we act now," she added." U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. And, of course, most of these organizations are made up of members of the same social, cultural and economic classes that supply the most powerful states with the members of their political classes.

3. Globalization thus has produced not only a devolution of power to autonomous economic units that operate across borders, but also given rise to a set of autonomous organizations whose business is to provide one or another sort of services across borders. Both aspects f globalization invoke public power to effect their operations. Yet both also seek to avoid the limits of territory in their operations. Both rely on market and market efficiency ideas, a rhetoric of welfare maximization, to diminish the significance of political borders. Privatization of this sort effectively shifts power down and out of the political sphere to the private sector, just as surely as it does when economic enterprises seek to stand in for the state. Thus, states like Burma and others that do not count themselves among the most powerful (what in an earlier time would consist of those states that need not be treated as equals by the family of nations) will experience a shifting of political power out to the international community working through the U.N. and its legal structure (the "responsibility to protect" doctrine) as well as a shifting of power down to civil society elements that appear to be taking on a responsibility to intervene.

4. The Burma crisis is helping refine the construction of an international law edifice based on notions of "human dignity." Human dignity concepts have been the cornerstone of European constitutional development since its adoption as Article 1 of the German Grundgesetz ("The dignity of man is inviolable. To respect and protect it is the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law."). It underlies the European Human Rights Convention framework. Yet, something more interesting than the Germanification of international law is at work here. It appears that the notion of human dignity inherent in new legal concepts--like the "responsibility to protect" (full text)--may be morphing from a set of principles to build state capacity to avoid gross breaches of (collective) human dignity, to a tool to be used to remove governments when they fail to act in the aftermath of fortuitous events (like a cyclone--or an earthquake), or to intervene to prevent states form mistreating their people. Thus, Burma is not an isolated event, nor is it an example of the limits of the potential use of the doctrine, but an early and compelling case for its use there, and elsewhere (principally contemporaneously, against Sudan in Darfur). The civil society actor, Responsibility 2 Protect, may have a better sense of this future than most.

The shape of this new international law principle of human dignity--of which the responsibility to protect doctrine forms a part--appears to be grounded in the nation of a new legal hierarchy, at the top of which stands the individual and the collective of individuals. Below the individual (singular and collective) stands the state, political, ethnic, religious and other divisions constituted into self governing (or otherwise governed) communities. The principle rejects the idea of states as the highest source of political power--that is vested in the community of states, which together is vested with an obligation to intervene when states misbehave. The community of nations defines both the character of misbehavior that may give rise to a power to intervene, the nature of the inattention that provides the excuse for intervention, and the process used to intervene. Desmond Tutu, speaking of the Kenyan crisis well articulated the concept;
The horrors of conflict in Africa continue today, but there is also a sign of how rapid response, with support from neighbors and the international community, can save lives and bring hope. In contrast to the crises in Rwanda in 1994 and Darfur in 2003, we see today in Kenya the formation of an international consensus that it is unacceptable to ignore violence of the kind that has occurred in recent months or to consider the crisis as purely an internal matter of the state.
Desmond Tutu, Taking the Responsibility to Protect, International Herald Tribune, Feb. 19, 2008. States, like other divisions of individuals into communities, are arbitrary constructs; individuals are real. "R2P has redefined the conception of state sovereignty by arguing that international community has the responsibility to protect civilians in states that are unwilling or unable to do so." Genocide Intervention Network, The Responsibility to Protect. The whole of sovereignty, therefore, lies in the citizens of the global community.

The development of the general principle of human dignity into a concrete manifestation as a responsibility to protect nicely evidences the workings of international secular constitutionalism built around the United Nations systems. See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 MISSISSIPPI COLLEGE LAW REVIEW 11 (2008). The difference between this framework and the one that preceded it is foundational. No longer a political matter, the relationships among states are increasingly embedded within systems of law. States, like individuals and corporations before them, are increasingly becoming subjects of a binding law enforceable against them and their agents. Law is replacing politics as the language of international relations, and the foundations of those relationships are increasingly the subject of morals and ethics. At the center of this complex of legal constraints stands the individual--at least as theory. In theory, because, as we have noted in the first paragraph, above, it seems that some communal voices (political, social, cultural and economic) may be more powerful than others. But there is no escaping the realities of power, however manifested. In this context, though, the incidental benefit to individuals may be positive.

The Burmese crisis, and those which will follow, suggest the contours of the new notion of state power embedded in webs of political, economic, social and cultural power, to which it is subject. This may be a good thing. With some many people competing for the benefits of caring for the welfare of others, and being rewarded for that care with political, social, cultural and economic power, it is possible that the powerless will also feel the tickle down of of the benefits of this new assertion of power on their behalf. And all will be changed in the process. As Nietzsche noted with hopeful viciousness in the construction of a "European" almost a century before the erection of the European Union:
Thus an essentially supra-national and nomadic type of man is gradually coming up, a type that possesses, physiologically speaking, a maximum of the art and power of adaptation as its typical distinction. . . . The tempo and process of the "evolving European" may be retarded by great relapses, but perhaps it will gain in vehemence and profundity and grow just on their account. . . .

Friedrich Nietzsche, Beyond Good and Evil: A Prelude to a Philosophy of the Future Para. 244 (Walter Kaufmann, trans., New York: Vintage Books, 1966) (original 1886). But recall as well Nietzche's warning, one that is particularly apposite in the construction of one or another global legal order.
But this process will probably lead to results which would seem to be least expected by those who naively promote and praise it, the apostles of 'modern ideas.' the very same new conditions that will on the average lead to the leveling and mediocritization of man--to a useful, industrious, handy, multi-purpose, herd animal--are likely in the highest degree to give birth to exceptional human beings of the most dangerous and attractive quality.

Id. But birth is indeed, a painful and dangerous process, even from out f the herd so carefully constructed beyond the state. See, Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21 PENN STATE INTERNATIONAL LAW REVIEW 509 (2003).

No comments: