Project and content management for Contemporary Authors volumes
WORK TITLE: Raising Arcadia
WORK NOTES:
PSEUDONYM(S):
BIRTHDATE: 1973
WEBSITE: https://www.simonchesterman.com/
CITY:
STATE:
COUNTRY: Singapore
NATIONALITY: Australian
https://simonchesterman.com/blog/about/ * http://law.nus.edu.sg/about_us/faculty/staff/profileview.asp?UserID=lawsac
RESEARCHER NOTES:
PERSONAL
Born 1973, in Melbourne, Victoria, Australia; married Ming Tan; children: one son, one daughter.
EDUCATION:University of Melbourne, B.A., LL.B., 1996; Oxford University, D. Phil., 2000.
ADDRESS
CAREER
Educator, specialist in international law, writer. International Peace Institute, New York, NY, senior associate, 2000-04; New York University School of Law, Institute for International Law and Justice, 2004-06, Global Professor and Director of the Singapore Program, 2007-11; National University of Singapore, Faculty of Law, Dean and Professor of Law, 2012–. Asian Journal of International Law, editor; Asian Society of International Law, secretary-general.
WRITINGS
Contributor of articles to journals.
SIDELIGHTS
Australian-born Simon Chesterman is an internationally recognized expert in international law, Dean of the National University of Singapore Faculty of Law. He researches and writes on topics dealing with public authority, including the rules and institutions of global governance, state-building and post-conflict reconstruction, and the changing role of intelligence agencies. Among the numerous books he has written or edited are Just War or Just Peace? Humanitarian Intervention and International Law, You, the People: The United Nations, Transitional Administration, and State-Building, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty, and From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN. In 2016, Chesterman turned his hand to young adult fiction, with the novel, Raising Arcadia, the first in a proposed trilogy.
Just War or Just Peace?
Chesterman’s first book, Just War or Just Peace?, was an adaptation of his doctoral thesis as a Rhodes Scholar at Oxford University studying international law. The author examines the concept of humanitarian interventions, focusing on the NATO intervention in Kosovo. Chesterman first provides an overview of the concept of just wars and the question of whether humanitarian intervention is consistent with provisions of the United Nations Charter. The author then moves to the situation during the 1990s in the breakup of the former Yugoslavia. The NATO intervention in Kosovo, Chesterman argues, represented a weakening of formal requirements for intervention, and also paved the way for unilateral rather than collective action in such cases. Chesterman contends that this could pave the way for bad faith interventions in the future.
Reviewing Just War or Just Peace? in Global Governance, Jennifer M. Welsh noted that this work “provides a comprehensive treatment of the legal issues and presents the case against the existence of a right of humanitarian intervention.” Welsh further commented: “For Chesterman, then, the very notion of humanitarian intervention is inconsistent as a principle. … In the end, despite Chesterman’s compelling argument, one is left wondering whether legal objections to humanitarian intervention get us very far.” Writing in Melbourne University Law Review, Nehal Bhuta had a higher assessment, observing: “Chesterman’s new work is a useful corrective to those who would cheerily dissolve the distinction between legality and power, or between legal analysis and agitprop. While the book is subtitled Humanitarian Intervention and International Law, its scope is considerably broader than a discussion of any purported customary international law right to use unilateral force to prevent a humanitarian or human rights `catastrophe’. It treats carefully the question of whether a right to humanitarian intervention pre-existed the UN Charter, or has crystallised subsequently, but also devotes considerable space to the new legal modalities of the use of force that have emerged in the last 15 years.”
You, the People
Chesterman’s second book, You, the People, looks at the difficult issue of populations transitioning to a democratic form of government. Specifically, the author examines the United Nations and its mechanisms for providing transition administrations as seen in Namibia, Cambodia, and Eastern Slavonia. Chesterman argues that such transitional administrations may become more typical in the future, as has been seen in Iraq and Afghanistan, and that such transitional administrations need a body of work behind them with guides to the problems such administrations face. His book is an attempt to fill that need.
Reviewing You, the People in the Wilson Quarterly, Hadley Ross termed it a “fine, timely, and usable study.” Ross went on to note that while Chesterman profiles instances of how transitional administrations were successful in maintaining law and order and working with the local populations, he also “analyzes why so many efforts founder, and why the United Nations and countries that contribute troops to these efforts are often unwilling to invest sufficient resources. … As Chesterman shows, fledgling democracies can quickly devolve into autocracy or civil war. A successful transition from autocracy to democratic self-rule takes years, not months.” Roy Licklider, writing in Political Science Quarterly, also had praise, commenting: “Chesterman has written a pathbreaking book about the varied experiences of the United Nations in state building.”
One Nation under Surveillance and From Community to Compliance?
Chesterman examines the new security state and its domestic intelligence activities in One Nation under Surveillance, focusing on the activities of the FBI in the United States and MI5 in Britain. His main contention is that in a time of global terrorism, “individuals give government and private institutions information in exchange for security and convenience,” according to Priscilla M. Regan writing in Political Science Quarterly. This new social contract is due not only to the effects of terrorism but also to the new realities of globalization and innovations in information technology. Regan further noted: “Chesterman’s analysis of the changes in domestic surveillance activities is carefully researched, thoughtfully organized, and well-supported; however, his conclusions regarding this new social contract need to be more fully developed.”
Chesterman focuses on the Association of Southeast Asian Nations (ASEAN) and its monitoring system in From Community to Compliance?. The author provides an overview of four decades of this organization’s work and policies, often called the “ASEAN way.” Writing in Journal of Southeast Asian Economies, Termsak Chalermpalanupap termed this book a “commendable, though initial, effort to study monitoring in ASEAN.” Chalermpalanupap added: “On balance, it is still unclear how effective ASEAN can be in developing monitoring mechanisms for itself. A systematic study of monitoring in ASEAN will be a useful means to assess progress in the movement in ASEAN towards compliance. Despite the paucity of public information, this book shows how it can be done.”
Raising Arcadia
Chesterman turns to young adult fiction in Raising Arcadia. In an interview with Nur Asyiqin Mohamad Salleh in the Straits Times Online, Chesterman remarked on his inspiration for writing for a younger audience: “I think there’s a real space in the young adult world for what I hope is thoughtful and thought-provoking literature. I wanted to write something that’s aimed at young people, but takes them and their concerns seriously, and treats them like adults–while also having enough in there for actual ‘adults’ to enjoy.”
The novel features sixteen-year-old Arcadia Greentree who is a scholarship student attending a school for the British upper class. An outsider, she begins to see mysterious things at her school: strange student behavior, monitoring cameras, and a secret passage to the principal’s office. Trained by her mother’s Saturday puzzles, Arcadia tries to decipher the puzzle of her school in this “mystery paying tribute to Sherlock Holmes,” according to a Kirkus Reviews critic who further commented that this “series opener is pleasurably packed with clever, solvable, well-explained puzzles; hits the spot for a mystery lover.” Similarly, School Library Journal reviewer Holly Boyer concluded: “Fans of quirky protagonists, puzzling mysteries, and spy craft will enjoy this.”
BIOCRIT
PERIODICALS
American Journal of International Law, October, 2008, Margaret E. McGuinness, review of Secretary or General? The UN Secretary-General in World Politics.
Foreign Affairs, January-February, 2006, G. John Ikenberry, review of Making States Work: State Failure and the Crisis of Governance, p. 146.
Global Governance, October-December, 2002, Jennifer M. Welsh, review of Just War or Just Peace? Humanitarian Intervention and International Law, p. 503.
Journal of International Affairs, fall 2003, Priscilla Ryan, “Building a State in Iraq: Is There a Good Precedent? An Interview with Simon Chesterman,” p. 219.
Journal of Southeast Asian Economies, August, 2016, Termsak Chalermpalanupap, review of From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN, p. 267.
Kirkus Reviews, September 15, 2016, review of Raising Arcadia.
Melbourne University Law Review, December, 2001, Nehal Bhuta, review of Just War or Just Peace?, p. 843.
Political Science Quarterly, spring, 2005, Roy Licklider, review of You, the People: The United Nations, Transitional Administration, and State-Building, p. 149; summer, 2012, Priscilla M. Regan, review of One Nation under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty, p. 340.
Reference & Research Book News, August, 2005, review of Making States Work, p. 164.
School Library Journal, November, 2016 Holly Boyer, review of Raising Arcadia, p. 95.
Wilson Quarterly, spring, 2005, Hadley Ross, review of You, the People, p. 116.
ONLINE
Audiovisual Library of International Law, http://legal.un.org/ (May 23, 2017), “Simon Chesterman.”
National University of Singapore Website, http://law.nus.edu.sg/ (May 23, 2017), “Simon Chesterman.”
NYU Law News, http://www.law.nyu.edu/ (May 23, 2017), “Simon Chesterman.”
Simon Chesterman Website, https://www.simonchesterman.com (May 5, 2017).
Straits Times Online, http://www.straitstimes.com/ (June 26, 2016), Nur Asyiqin Mohamad Salleh, “Law Dean Turned Novelist Simon Chesterman Takes on Young Adult Fiction.”
United Nations University Website, https://unu.edu/ (May 23, 2017), “Simon Chesterman.”*
Dr. Simon Chesterman
Dean and Professor of Law
Faculty of Law
National University of Singapore
United Nations Audiovisual Library of International Law
D
R
.
S
IMON
C
HESTERMAN
Dean and Professor of Law
Faculty of Law
National University of Singapore
Professor Simon Chesterman is Dean of the National University of Singapore Faculty of
Law. He is also Editor of the Asian Journal of International Law and Secre
tary
-General
of the Asian Society of International Law. His teaching experience includes periods at
the Universities of Melbourne, Oxford, Southampton, Columbia, and Sciences Po. From
2006-
2011, he was Global Professor and Director of the New York Univers
ity School of
Law Singapore Programme. Prior to joining NYU, he was a Senior Associate at the
International Peace Academy and Director of UN Relations at the International Crisis
Group in New York. He has previously worked for the UN Office for the Coordination of
Humanitarian Affairs in Yugoslavia and interned at the International Criminal Tribunal
for Rwanda. Professor Chesterman is a recognized authority on international law and
author or editor of seventeen books including Law and Practice of the United
Nations
(with Ian Johnstone and David M. Malone, OUP, 2016); One Nation Under Surveillance
(OUP, 2011); You, The People (OUP, 2004); and Just War or Just Peace? (OUP, 2001).
www.un.org/l
aw/avl
About Simon Chesterman
Work
NUS Law
Dean and Professor · 2007 to present · Singapore, Singapore
Dean
2012 to present
New York University School of Law
2004 to 2011
Global Professor and Director of the Singapore Programme (NYU@NUS)
2007 to 2011
Institute for International Law and Justice
2004 to 2006
International Peace Institute
Senior Associate · 2000 to 2004 · New York, New York
Education
University of Oxford
Class of 2000 · DPhil · Law · Oxford, Oxfordshire
University of Melbourne
Class of 1997 · Law · Arts · Melbourne, Victoria, Australia
Camberwell Grammar School
1985 to 1990 · Canterbury, Victoria
Current City and Hometown
Singapore
Current city
Melbourne, Victoria, Australia
Hometown
Other Places Lived
New York, New York
Moved here
Oxford, Oxfordshire
Moved here
Beijing, China
Moved here
Favorites
Music
[Welcome to Night Vale]
Welcome to Night Vale
Books
[One Nation Under Surveillance]
One Nation Under Surveillance
Television
[Have I Got News For You]
Have I Got News For You
Sports Teams
[LionsXII]
LionsXII
Other
Daily Laugh, Max Boot, Research Institute of Development and European Affairs (RIDEA), Giving.sg, Ong Ye Kung, StreetArtGlobe, United Nations, Jonathan Pie, Military Justice Project, Letters of the Law, National Reading Movement, Super Cool Books, Edwin Tong, Dean Nancy Staudt, Jeffrey K. Walker, RGPS Family Science Club, LAWIV 2017: Judicial Review, EJIL:Talk, The New Yorker Cartoons, Kevin Bloody Wilson, Slate's Culture Gabfest, Slate.com, Andrew Leigh MP, Marshall Cavendish International (Asia), Desmond Lee, Shashi Tharoor, Singapore Writers Festival, Jeffrey Toobin, Lawrence H. Summers, Helen Clark, NUS Law Orientation 2016, Singapore International Mediation Institute, Women in International Law - Singapore, George Saunders, Chen Show Mao, Built To Order, Global Network of Societies for International Law, Migrant Workers Awareness Week, Nate Silver, Kishore Mahbubani, Andy Borowitz, Fakultas Hukum Universitas Indonesia, Sylvia Lim, SNBP 2015 - Singapore Novice British Parliamentary Debating Championships, Lex NUS Law, Monsoon Books, Ethos Books, Julie Bishop MP, Malcolm Turnbull, mrbrown, Anita Chesterman, Speakola, Legal Convergence Asia, Mothership.sg, Tin Pei Ling 陈佩玲, Neil deGrasse Tyson, Thailand Institute of Justice (TIJ), Christopher de Souza, RVMUN, Tan Chuan-Jin, Inconvenient Questions, NUS Law Students' International Relations Committee, United Nations University Centre for Policy Research, Straits Times Political Desk, Oxford International Law, Ian Bremmer, Singapore Forum, Global Technology Law Conference 2015, Teo Chee Hean, Jeffrey Goldberg, HOOQ, Tan Wu Meng 陈有明, Just Walk, Vikram Nair, ACLS, Cornucopia, COMO Point Yamu, Phuket, On The Upper Quad, Singapore Academy of Law, Rusutsu Resort (Official), Magdalen College, Oxford, Singapore Law Blog, IPI Vienna, Tharman Shanmugaratnam, The Arts House at The Old Parliament, Asian Society of International Law, S Rajaratnam Endowment, Center for Human Rights and Global Justice (CHRGJ), NYU School of Law, Mike Allen, Dads at SCGS, LAW IV '14: Novus Actus, Best of Vines, Singapore High Commission in London, Artify Studio, Meerkatplace, International Studies Review, TSMP Insider, Singapore Repertory Theatre, NYU Brademas Center, Tony Wilson Author, Kevin Rudd, Personal Data Protection Commission, Happy Sheldon, ASIL - American Society of International Law, MARUAH, Wait Wait Don't Tell Me, Tin House, One Story, PAULA POUNDSTONE, Rebecca Mead, All Things Garmisch, The Straits Times, Halimah Yacob, John Cleese, Singapore Expats, The Middle Ground, The New York Times, SMRT, I fucking love science, Ministry of Education, Singapore, The New Yorker, Unbelievable facts, NUS Alumni Office, Lee Kuan Yew School of Public Policy, NUS Office of Alumni Relations, Asian Law Institute, Centre for Asian Legal Studies, ASEAN Youth Organization, Kevin Spacey, Ian McKellen, New America, io9, Singapore Film Society, International Association of Law Schools, Angmohdan, World Justice Project, Colloquium on Crimes Against Humanity, War Crimes and Genocides, Cheezburger, The New York Times Opinion Section, Roger Cohen, Institute for International Law and Justice, Climate Change SG, Shelter in the Woods, 2013 Law IV Production - Faces of Life, ArtScience Museum, Sacha Baron Cohen, Big Appetites Photography, Cube Gallery, NUS Students' Law Club, The Center for Constitutional Transitions, Ministry of Communications and Information (MCI), President's Challenge, What I see when I run, The Lowy Institute for International Policy, One Degree 15 Marina Club, Land Transport Authority, Heng Swee Keat, Speak Good English Movement, Indranee Rajah, SOCIALKIT, Amazing Facts, アジア国際法学会日本協会 Japan Chapter of the Asian Society of International Law, Erin Matlock, Pollen Singapore, Nike+ Run Club, Centre for International Law (CIL), George Takei, Lee Hsien Loong, Yale-NUS College Admissions, United Nations Careers, The Online Citizen SG, LawOnline Singapore, Melbourne Law School, Law Conferences, Seminars and Opportunities, Slate Political Gabfest, Opinio Juris, International Ethics (ISA)
Simon Chesterman
Simon Chesterman - 20091002.jpg
Born 1973 (age 43–44)
Nationality Australian
Alma mater Beijing International Studies University;
University of Melbourne (B.A.), (LL.B);
University of Oxford (D.Phil.).
Employer National University of Singapore Faculty of Law
Notable work One Nation Under Surveillance (2011); Law and Practice of the United Nations (with Thomas M. Franck and David M. Malone, 2008); You, The People (2004); Just War or Just Peace? (2001).
Website www.simonchesterman.com
Prof Simon Chesterman (simplified Chinese: 陈西文; traditional Chinese: 陳西文; pinyin: Chén Xīwén) is Dean and Professor of Law at the National University of Singapore. An Australian Rhodes Scholar, he is also the Secretary-General of the Asian Society of International Law and Editor of the Asian Journal of International Law.
Chesterman succeeded Tan Cheng Han as Dean of the National University of Singapore Faculty of Law (NUS Law) on 1 January 2012.[1] Prior to January 2012, he was Global Professor and Director of the New York University School of Law Singapore Programme.[2] His research concerns international law, public authority, and data protection. He is critical of what he sees as the changing and increasingly expanding role of intelligence agencies.[3] Chesterman is the author or editor of thirteen books.
In 2013, he was appointed as a member of Singapore's Data Protection Advisory Committee[4] and in 2016 joined the United Nations University Council.[5]
Contents
1 Education
2 Books
2.1 Humanitarian intervention
2.2 State-building
2.3 Intelligence agencies
2.4 Data protection
2.5 Other books
3 Journals
4 Reports
5 Fiction
6 Dean of NUS Law (2012- )
7 Bibliography
7.1 Fiction
7.2 Non-fiction
7.3 Lectures
8 Personal life
9 References
10 External links
Education
Chesterman graduated with first class honours in arts and law from the University of Melbourne, where he won the Supreme Court Prize as the top student, and was Editor of the Melbourne University Law Review. He obtained a Rhodes Scholarship and completed his Doctorate in international law at Oxford University under the supervision of the late Sir Ian Brownlie.[1] He also holds a diploma in Chinese language from the Beijing International Studies University.[6]
Books
Humanitarian intervention
His doctoral thesis as a Rhodes Scholar, became one of his first books, Just War or Just Peace? Humanitarian Intervention and International Law.[7] Before publication as a book, the work had originally won a 2000 Dasturzada Dr Jal Pavry Memorial Prize for "best thesis in international relations".[8] One review article of this book by Nico Krisch in the European Journal of International Law described Chesterman's book as being pessimistic about humanitarian intervention, when compared to his contemporary Nicholas J. Wheeler who is more optimistic about establishing an international framework for "ideal humanitarian intervention".
Chesterman does not believe that "ideal humanitarian intervention" exists; according to Krisch, he instead belongs to the school of thought that argues that states should "justify their action based on political arguments" rather than relying on a "[humanitarian] recognition of exception to the use of force". Though the intervention would go against international law, it would be in Chesterman's words, a "venial sin".[9] As Krisch analyses, Wheeler also raises "plausible" opposition to this — it would create a "perception" that "powerful states" could ignore international law whenever they wished, pushing other countries to treat international law "equally cavalierly". Noting Chesterman's position, Krisch writes, "law loses much of its weight if its deviation from moral standards is openly admitted and other ways of justification are recognised." Chesterman further argues in Just War or Just Peace that the enforcement of the Iraqi no-fly zones and the Operation Deny Flight (the no-fly zone in Kosovo) went outside the framework of the United Nations, but Krisch calls this claim "overstated". Nevertheless, the book received an American Society of International Law Certificate of Merit.[10]
In Just War or Just Peace, Chesterman rejects the idea that the Federal Republic of Yugoslavia (FRY)'s repression of the Kosovars represented a "supreme humanitarian emergency". Instead, as Nicholas Wheeler notes, Chesterman is "sympathetic" to Russia's historical argument before the Security Council (SC) "that the crisis did not merit an armed response". Going against the widely accepted view is that Russia's threat to use its UN Security Council veto against UN intervention in Kosovo was an act of "mere contrariness" to NATO, Chesterman instead argues NATO "never seriously contemplated that there might be genuine objections to the policies of NATO member states in their dealings with [the FRY]." Chesterman and his allies, Wheeler writes, would actually believe that Russia's official SC position matched its actual belief on the matter; to Chesterman, Russia would have changed its position had the situation "worsened along the apocalyptic lines predicted by NATO governments".[11]
Nevertheless, writing in the journal International Affairs, Wheeler concluded that "Chesterman has written a tour de force that exposes the weaknesses of the arguments supporting a doctrine of unilateral humanitarian intervention in international society ... Chesterman rejects the claim that states have a legal right to act as vigilantes in support of Council resolutions, even if they believe that this is the only means to stop a genocide. The powerfully argued thesis of this scholarly work is that accepting this proposition in law is 'a recipe for bad policy, bad law, and a bad international order'."[12]
As a Modern Law Review article noted, Chesterman condemned NATO's intervention in the Kosovo War as being "completely outside the United Nations system of security and a threat to global stability".[13] He later drew parallels between Kosovo and the arguments raised by Russia for its 2014 annexation of Crimea.[14]
State-building
Chesterman's book You, The People: The United Nations, Transitional Administration, and State-Building (Oxford University Press, 2004),[15] studies the foundation of new institutions in war-torn regions such as the former Yugoslavia and southeast Asia. Noting Chesterman's intent to highlight the mutually related yet sometimes mutually opposing "ends of liberal democracy and the means of benevolent autocracy," a review article in the George Washington International Law Review called it a "misdelivered message".[16] It was reviewed positively in the New York Review of Books by Brian Urquhart who wrote that "the weight of the subject and the depth of the research are supported by wit, candor, brevity, and analytical writing of a very high order."[17] Another review in Human Rights Quarterly stated that the book "speaks with the authority of a major global commission study and offers analyses and prescriptions with important implications for human rights scholars and practitioners."[18]
Intelligence agencies
More recently[when?], Chesterman has written on the regulation and oversight of intelligence services, including a monograph published by Australia’s Lowy Institute for International Policy.[19] In an opinion piece published in the global edition of the New York Times in November 2009, he argued for limits to the outsourcing of intelligence activities to private contractors such as Blackwater.[20]
Oxford University Press published Chesterman’s twelfth book in March 2011. Entitled One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty, it examines what limits — if any — should be placed on a government's efforts to spy on its citizens in the name of national security.[21][22] Writing in the New York Review of Books, David D. Cole said that Chesterman "argues convincingly that the specter of catastrophic terrorist attacks creates extraordinary pressure for intrusive monitoring; that technological advances have made the collection and analysis of vast amounts of previously private information entirely feasible; and that in a culture transformed by social media, in which citizens are increasingly willing to broadcast their innermost thoughts and acts, privacy may already be as outmoded as chivalry."[23]
Data protection
In January 2014, Chesterman published an edited volume entitled Data Protection Law in Singapore: Privacy and Sovereignty in an Interconnected World (Singapore: Academy Publishing, 2014).[24]
Other books
Other publications have focused on the United Nations, particularly the role of its Secretary-General,[25] and the rise and regulation of private military and security companies.[26]
Journals
Chesterman is a founding editor of the Asian Journal of International Law, published from 2011 by Cambridge University Press.[27] He is on the editorial boards of other journals including Global Governance,[28] Journal of Intervention and Statebuilding,[29] Security Dialogue,[30] and The Hague Journal on the Rule of Law.[31]
Reports
Chesterman speaking at the Rule of Law Symposium 2012 in the Supreme Court Auditorium on 15 February 2012
Chesterman has been author or co-author of various reports for the United Nations, governments, and private bodies. Examples include:
"The UN Security Council and the Rule of Law", arguing for greater accountability and circulated as a document of the United Nations in all UN languages;[32]
"Assessment of Implementation of Articles 3 and 4 of the Ethical Guidelines for the Government Pension Fund – Global", reviewing the ethical investment strategy of Norway's sovereign wealth fund and co-authored with the Albright Group founded by former U.S. Secretary of State Madeleine Albright;[33]
"Asia’s Role in Global Governance", a report of the World Economic Forum's Global Redesign Initiative co-authored with Kishore Mahbubani.[34]
Fiction
Chesterman's play "Everything Before the 'But' Is a Lie" was performed at Oxford's Burton Taylor Studio in 2000. It was directed by Rosamund Pike, who was then an undergraduate student at Oxford.[35]
In May 2016, Chesterman published his first novel, Raising Arcadia, with Marshall Cavendish.[36]
Dean of NUS Law (2012- )
As Dean of NUS Law, Chesterman oversaw the first review of its curriculum in more than a decade. Changes introduced included more practical experience, greater exposure to the legal systems of Asia, and a grade-free first semester.[37]
Chesterman also launched an ambitious research agenda, including the creation of four new centres: the Centre for Asian Legal Studies, the Centre for Law & Business, the Centre for Banking & Finance Law, and the Centre for Maritime Law. This was said to be aimed at making Singapore a "thought leader" in legal research.[38]
In September 2013, NUS Law convened the first ever Global Law Deans' Forum of the International Association of Law Schools. The meeting adopted the Singapore Declaration on Global Standards and Outcomes of a Legal Education,[39] which was intended to offer a “common language” for global legal education.[40]
Bibliography
Fiction
Raising Arcadia (2016, Marshall Cavendish), 240 pp.
Non-fiction
Studying Law at University: Everything You Need to Know (with Clare Rhoden) (Sydney: Allen & Unwin, 1998), 176pp.
Civilians in War (editor) (Boulder, CO: Lynne Rienner, 2001), 291pp.
Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), 295pp.
You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004), 296pp.
Making States Work: State Failure and the Crisis of Governance (editor, with Michael Ignatieff and Ramesh Thakur) (Tokyo: United Nations University Press, 2005), 400pp.
Studying Law at University (with Clare Rhoden) (2nd edition; Sydney: Allen & Unwin, 1998), 155pp.
Shared Secrets: Intelligence and Collective Security (Sydney: Lowy Institute for International Policy, 2006), 103pp.
After Mass Crime: Rebuilding States and Communities (editor, with Béatrice Pouligny and Albrecht Schnabel) (Tokyo: United Nations University Press, 2007), 314pp.
Secretary or General? The UN Secretary-General in World Politics (editor) (Cambridge: Cambridge University Press, 2007), 280pp.
From Mercenaries to Market: The Rise and Regulation of Private Military Companies (editor, with Chia Lehnardt) (Oxford: Oxford University Press, 2007), 287pp.
Law and Practice of the United Nations: Documents and Commentary (with Thomas M. Franck and David M. Malone) (Oxford: Oxford University Press, 2008), 648pp.
Private Security, Public Order: The Outsourcing of Public Functions and Its Limits (editor, with Angelina Fisher) (Oxford: Oxford University Press, 2009), 247pp.
One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford: Oxford University Press, 2011), 297pp.
Data Protection Law in Singapore: Privacy and Sovereignty in an Interconnected World (editor) (Singapore: Academy Publishing, 2014), 313pp.
From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN (Cambridge: Cambridge University Press, 2015), 180pp.
Law and Practice of the United Nations: Documents and Commentary (with Ian Johnstone and David M. Malone) (2nd edition; Oxford: Oxford University Press, 2016), 736pp.
Lectures
Asia’s Ambivalence About International Law and Institutions: Past, Present, and Futures in the Lecture Series of the United Nations Audiovisual Library of International Law
Personal life
Chesterman is married to Patricia Tan, the daughter of Singapore's seventh and current President, Tony Tan.[41]
Professor Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law.
Educated in Melbourne, Beijing, Amsterdam, and Oxford, Professor Chesterman’s teaching experience includes periods at the Universities of Melbourne, Oxford, Southampton, Columbia, and Sciences Po. From 2006-2011, he was Global Professor and Director of the New York University School of Law Singapore Programme.
Prior to joining NYU, he was a Senior Associate at the International Peace Academy and Director of UN Relations at the International Crisis Group in New York. He has previously worked for the UN Office for the Coordination of Humanitarian Affairs in Yugoslavia and interned at the International Criminal Tribunal for Rwanda.
Professor Chesterman is the author or editor of fourteen books, including One Nation Under Surveillance (OUP, 2011); Law and Practice of the United Nations (with Thomas M. Franck and David M. Malone, OUP, 2008); You, The People (OUP, 2004); and Just War or Just Peace? (OUP, 2001).
He is a recognized authority on international law, whose work has opened up new areas of research on conceptions of public authority — including the rules and institutions of global governance, state-building and post-conflict reconstruction, and the changing role of intelligence agencies.
Name
CHESTERMAN, Simon
Designation
Professor
Qualifications
D.Phil. (Oxford); LL.B. (Hons), B.A. (Hons) (Melbourne)
Appointment(s)
Dean
Editor, Asian Journal of International Law
Email Address: chesterman@nus.edu.sg
Office Tel: (65) 6516-7342
Office Fax: (65) 6779-0979
Office Address
Faculty of Law, National University of Singapore
Eu Tong Sen Building
469G Bukit Timah Road
Singapore 259776
Research Interests
Data protection law and policy
International law, organizations, and global governance
Intervention, state-building, and post-conflict reconstruction
Regulation and oversight of intelligence services
Subjects Taught
United Nations Law and Practice
Brief Biodata
Professor Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Professor Chesterman's teaching experience includes periods at the Universities of Melbourne, Oxford, Southampton, Columbia, and Sciences Po. From 2006-2011, he was Global Professor and Director of the New York University School of Law Singapore Programme.
Prior to joining NYU, he was a Senior Associate at the International Peace Academy and Director of UN Relations at the International Crisis Group in New York. He has previously worked for the UN Office for the Coordination of Humanitarian Affairs in Yugoslavia and interned at the International Criminal Tribunal for Rwanda.
Professor Chesterman is the author or editor of seventeen books, including Law and Practice of the United Nations (with Ian Johnstone and David M. Malone, OUP, 2016); One Nation Under Surveillance (OUP, 2011); You, The People (OUP, 2004); and Just War or Just Peace? (OUP, 2001). He is a recognized authority on international law, whose work has opened up new areas of research on conceptions of public authority - including the rules and institutions of global governance, state-building and post-conflict reconstruction, and the changing role of intelligence agencies.
Representative Publications
1. Law and Practice of the United Nations: Documents and Commentary (with Ian Johnstone and David M. Malone) (2nd edn; Oxford University Press, 2016).
2. From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN (Cambridge University Press, 2015).
3. Data Protection Law in Singapore: Privacy and Sovereignty in an Interconnected World (editor) (Singapore: Academy Publishing, 2014)
4. One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford: Oxford University Press, 2011).
5. Secretary or General? The UN Secretary-General in World Politics (editor) (Cambridge: Cambridge University Press, 2007).
6. You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004).
Simon Chesterman appointed the new dean of National University of Singapore Faculty of Law
Simon ChestermanThe National University of Singapore Faculty of Law announced that Simon Chesterman, global professor of law at NYU School of Law and professor of law and vice dean of graduate studies at NUS, will succeed Professor Tan Cheng Han to become the 14th dean of the NUS Faculty of Law, effective January 1, 2012. Chesterman has served as the director of NYU@NUS, a joint graduate degree program between NYU Law and NUS, since its inception. His appointment follows an extensive international search by a committee led by the NUS Provost.
Chesterman is a world-renowned expert on international institutions, international criminal law, human rights, the use of force, and post-conflict reconstruction. Earlier this year he published, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty. He joined NYU Law in 2006 as executive director of the Institute for International Law and Justice and director of the joint JD/LL.M. program, and later played an instrumental role in launching NYU@NUS, which provides an unparalleled legal education for students from around the globe who want to gain a foothold in Asia. Chesterman navigated the many complexities of building this innovative new program "with enormous skill and determination," said NYU School of Law Dean Richard Revesz, who added: "I am thrilled that he will be at the helm of NUS, and look forward to working with him in his new role."
Posted November 7, 2011
Simon Chesterman
Dean, National University of Singapore Faculty of Law
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Experience
National University of Singapore
Dean and Professor of Law
National University of Singapore
January 2012 – Present (5 years 6 months)
National University of Singapore
Professor of Law
National University of Singapore
July 2009 – December 2011 (2 years 6 months)
New York University
Global Professor and Director of the NYU School of Law Singapore Program
New York University
2006 – 2011 (5 years)
National University of Singapore
Associate Professor of Law
National University of Singapore
January 2007 – June 2009 (2 years 6 months)
New York University
Executive Director, Institute for International Legal Studies
New York University
January 2004 – December 2006 (3 years)
Senior Associate
International Peace Institute
2000 – 2004 (4 years)
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Chinese
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International LawHuman RightsLegal WritingPolicy AnalysisInternational RelationsInternational ArbitrationResearchUniversity TeachingPublic PolicyLegal ResearchForeign PolicyPolitical ScienceCorporate GovernanceLitigationLecturingInternational DevelopmentInternational Human RightsHigher Education
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Publications
One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty
Oxford University Press (Feb 2011)
November 2010
What limits, if any, should be placed on a government’s efforts to spy on its citizens in the name of national security? Spying on foreigners has long been regarded as an unseemly but necessary enterprise. Spying on one’s own citizens in a democracy, by contrast, has historically been subject to various forms of legal and political restraint. For most of the twentieth century these regimes were kept distinct. That position is no longer tenable. Modern threats do not respect national borders. Changes in technology make it impractical to distinguish between ‘foreign’ and ‘local’ communications. And our culture is progressively reducing the sphere of activity that citizens can reasonably expect to be kept from government eyes.
The main casualty of this transformed environment will be privacy. Recent battles over privacy have been dominated by fights over warrantless electronic surveillance and CCTV; the coming years will see debates over DNA databases, data mining, and biometric identification. There will be protests and lawsuits, editorials and elections resisting these attacks on privacy. Those battles are worthy. But the war will be lost. Modern threats increasingly require that governments collect such information, governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.
This book proposes a move away from questions of whether governments should collect information and onto more problematic and relevant questions concerning its use. By reframing the relationship between privacy and security in the language of a social contract, mediated by a citizenry who are active participants rather than passive targets, this book offers a framework to defend freedom without sacrificing liberty.
Authors:
Simon Chesterman
Education
University of Oxford
University of Oxford
D.Phil, International Law
1997 – 2000
Activities and Societies: Magdalen College
University of Melbourne
University of Melbourne
B.A. (Hons), LL.B. (Hons)
1992 – 1996
Professor Simon Chesterman
Dean, Faculty of Law, National University of Singapore
Overview
Professor Simon Chesterman is dean of the National University of Singapore Faculty of Law. He also is secretary-general of the Asian Society of International Law and editor of the Asian Journal of International Law.
Educated in Melbourne, Beijing, Amsterdam, and Oxford, Prof. Chesterman’s teaching experience includes periods at the Universities of Melbourne, Oxford, Southampton, Columbia, and Sciences Po. From 2006–2011, he was global professor and director of the New York University (NYU) School of Law Singapore Programme.
Prior to joining NYU, he was a senior associate at the International Peace Academy and director of UN Relations at the International Crisis Group in New York. He previously worked for the UN Office for the Coordination of Humanitarian Affairs in Yugoslavia and interned at the international Criminal Tribunal for Rwanda.
Prof. Chesterman a recognised authority on international law; his work has opened up new areas of research on conceptions of public authority, including the rules and institutions of global governance, state-building and post-conflict reconstruction, and the changing role of intelligence agencies.
QUOTE:
I think there's a real space in the young adult world for what I hope is thoughtful and thought-provoking literature.
"I wanted to write something that's aimed at young people, but takes them and their concerns seriously, and treats them like adults - while also having enough in there for actual 'adults' to enjoy
Law dean turned novelist Simon Chesterman takes on young adult fiction
Simon Chesterman (above) is working on the second instalment of the trilogy.
Simon Chesterman (above) is working on the second instalment of the trilogy.ST PHOTO: DESMOND FOO
Simon Chesterman tackles young adult fiction for his debut novel as he wanted to write something his children would read
Published:
Jun 26, 2016, 5:00 am SGT
Nur Asyiqin Mohamad Salleh
Over the course of his career, law dean Simon Chesterman has written 16 books on heavy, scholarly topics such as governance and international law.
For his 17th book, he has switched gears. He is taking on the world of young adult fiction with his first novel, Raising Arcadia.
The story centres on 16-year-old girl genius Arcadia Greentree, who studies in a school which counts among its alumni members of British royalty.
With her logical mind, she is used to unravelling mysteries. But she soon discovers that her identity might itself be a mystery: Arcadia Greentree should not exist. She is, instead, part of an experiment that hopes to establish whether a person is defined by his genes or his upbringing.
Peppered with codes, puzzles and shocking twists, Raising Arcadia is the first book in a planned trilogy. Chesterman is already working on the second instalment.
The 43-year-old Australia-born dean of the National University of Singapore Faculty of Law first came up with the idea for the book because he wanted to write something his children - a son aged 11 and daughter aged eight - would read.
Raising Arcadia by Simon Chesterman.
One of his toughest critics yet, he says with a laugh, is his daughter.
"She doesn't mince her words. She's quite commanding actually," says Chesterman,whose wife Ming Tan is the director of Como Foundation, the philanthropy arm of Como Hotels and Resorts.
"She's on my back telling me not to have quite so many murders. She would like different crimes and - most importantly - she wants me to guarantee a happy ending at the end of the series."
The book explores a topic that has long fascinated Chesterman: the tension between nature and nurture.
As a law professor, he has seen young men and women go to university, eager to learn.
"But how much of an influence do we really have on them and how much is genetic make-up?" he says. "So that question of what shapes someone is something I could explore in this book, not in an academic sense because that's not my area of research, but in a fictional sense."
Chesterman grew up reading the works of mathematician Martin Gardner, the man behind dozens of books on puzzles, and Alice's Adventures In Wonderland author Lewis Carroll, who also wrote on symbolic logic.
So it is no surprise that he weaves puzzles into the story.
Arcadia's mother, for example, leaves a puzzle out for her each week - something Chesterman and his wife occasionally do for their children. Some Saturday mornings, they leave a puzzle out for their kids, who have to solve it in order to find the money to buy breakfast.
Chesterman spent six months mapping out the plot. After turning in a book on the law and practice of the United Nations in the middle of 2014, he started writing the novel in snatches of time: late at night and in the early hours of morning, on long-haul flights and train rides overseas.
"Arcadia was kind of my reward, something lighter and a bit more fun for me to write," he says.
"It was more relaxation than work, like, 'Okay, I've cleared all my e-mails. I'll treat myself to some writing.' It's probably the book I'm most excited about - except for my first."
He is now five-sixths of the way through the second book in the series, which is slated for publication this November. It will be launched at the Singapore Writers Festival.
Words have been a lifelong passion for Chesterman, who was born in Australia and did his doctorate at Oxford University in the United Kingdom.
He was an avid writer in his teens, churning out two "completely unpublishable" novels. "I'm delighted this was pre-Internet, so I didn't just sort of upload them, and then live a life of regret."
As an adult, his writing tended towards the academic: opinion pieces for newspapers and books bearing titles such as One Nation Under Surveillance: A New Social Contract To Defend Freedom Without Sacrificing Liberty.
He is used to writing for a professional and scholarly audience, but fiction was a new challenge.
"The hardest thing about it is the sense of being exposed and vulnerable," he says.
With academic work, readers might disagree with the arguments presented - but a professional distance remains. Fiction, however, is much more personal.
"There's so much more readers can judge - and they might end up completely hating it."
He and his family discussed whether he should publish the book under a pseudonym, but he decided not to because "there's no shame in an adult writing - or reading - young adult fiction".
Echoing the intentions of many young adult writers, he adds: "I think there's a real space in the young adult world for what I hope is thoughtful and thought-provoking literature.
"I wanted to write something that's aimed at young people, but takes them and their concerns seriously, and treats them like adults - while also having enough in there for actual 'adults' to enjoy."
• Raising Arcadia by Simon Chesterman (Marshall Cavendish Editions, 2016, $18.60) is available from major bookstores.
QUOTE:
mystery paying tribute to Sherlock Holmes
series opener is pleasurably packed with clever, solvable, well-explained puzzles; hits the spot for a mystery lover.
Simon Chesterman: RAISING ARCADIA
(Sept. 15, 2016):
Copyright: COPYRIGHT 2016 Kirkus Media LLC
http://www.kirkusreviews.com/
Simon Chesterman RAISING ARCADIA Marshall Cavendish (Adult Fiction) 14.99 12, 1 ISBN: 978-981-4751-50-6
A 16-year-old girl detective stars in a mystery paying tribute to Sherlock Holmes.Arcadia Greentree is a white, clever, middle-class scholarship student at a school for England's upper crust. She's not popular with either classmates or staff; is it because of her cold mannerisms, her conviction that she knows better than her teachers, or her penchant for offering unsolicited advice based on careful observation? Arcadia's content with her studies, the mysteries she unearths, and with the Saturday puzzles her mother gives her (each provided with enough information for readers to solve, followed by a clearly explained solution). Nonetheless, she's concerned about the unknowns within her own school: students behaving strangely, cameras watching the students' every move, a secret door in the headmaster's office. Something unsavory is happening, and Arcadia's parents are in danger. Sherlock Holmes parallels abound. Some, such as Arcadia's violin, will be recognizable to readers who've absorbed Holmes in popular culture. Others, including character and place names taken from lesser-known short stories or Arthur Conan Doyle's life, provide more fan service for adult Sherlock-ians than for young readers not so entrenched in the minutiae of Great Detective trivia.
Though overstuffed with obscure allusions and unnecessary infodumps, this series opener is pleasurably packed with clever, solvable, well-explained puzzles; hits the spot for a mystery lover. (Mystery. 12-14)
Source Citation (MLA 8th Edition)
"Simon Chesterman: RAISING ARCADIA." Kirkus Reviews, 15 Sept. 2016. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA463215946&it=r&asid=7311f24ea0ce2dcb5be2a229c7211119. Accessed 11 June 2017.
Gale Document Number: GALE|A463215946
Political and Legal - Making States Work: State Failure and the Crisis of Governance
G. John Ikenberry
85.1 (January-February 2006): p146.
Copyright: COPYRIGHT 2006 Council on Foreign Relations, Inc.
http://www.foreignaffairs.org
Making States Work: State Failure and the Crisis of Governance
By Edited by Simon Chesterman, Michael Ignatieff, and Ramesh Thakur
: United Nations University Press, 2005, 350 pp., $45.00
The Bush administration's 2002 National Security Strategy asserted that "America is now threatened less by conquering states than we are by failing ones." Unfortunately, a coherent and sustained way of responding to failing states remains elusive. This volume assembles a large cast of experts to map the dimensions of the challenge and explore the disparate experiences of weak and conflict-ridden states. Their key finding is not encouraging: states cannot be made to work from the outside. In cases where state failure has been overcome -- Mozambique, Costa Rica, Singapore -- history, culture, and the actions of local groups were as important as any international involvement. Thus, the editors conclude, outside actors can do little to shape the fortunes of failing states. What leverage they do have, meanwhile, is most effective when it is tailored to local needs and channeled through local hands.
Ikenberry, G. John
Source Citation (MLA 8th Edition)
Ikenberry, G. John. "Political and Legal - Making States Work: State Failure and the Crisis of Governance." Foreign Affairs, Jan.-Feb. 2006, p. 146. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA142737284&it=r&asid=1d44b3f899805a931f819d2a7dd58e73. Accessed 11 June 2017.
Gale Document Number: GALE|A142737284
QUOTE:
ans of quirky protagonists, puzzling mysteries, and spy craft will enjoy this.
Chesterman, Simon. Raising Arcadia
Holly Boyer
62.11 (Nov. 2016): p95.
Copyright: COPYRIGHT 2016 Library Journals, LLC. A wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
http://www.schoollibraryjournal.com/
CHESTERMAN, Simon. Raising Arcadia. 200p. ebook available. Marshall Cavendish. Dec. 2016. pap. $14.99. ISBN 9789814751506.
Gr 6 Up--Arcadia Greentree, a 16-year-old student at the exclusive Priory School, is surrounded by mysteries, beginning with the disappearance of her sort-of friend Henry. Through her uncanny powers of observation and deduction, honed by puzzles, Arcadia collects a great deal of information about the people around her, even if she isn't quite able to connect all that she notices. But can she apply her unusual insights to herself? How much of her life has been a carefully constructed lie? First-time novelist Chesterman creates an engrossing story that keeps readers chasing the truth. Arcadia is strikingly similar to Sherlock Holmes, with her sharp assessment of people's problems, her love of the violin, and her smug, equally intelligent older brother. At the same time, her endearing brashness is reminiscent of Sophronia Temminnick's in Gail Carriger's "Finishing School" series. A full cast of secondary characters, from well-meaning parents to a mysterious headmaster, help to move Arcadia along on her journey of discovery. A graphically depicted murder might challenge sensitive readers. VERDICT Fans of quirky protagonists, puzzling mysteries, and spy craft will enjoy this. A solid addition to any middle school, high school, or public library--Holly Boyer, Reston, VA
Boyer, Holly
Source Citation (MLA 8th Edition)
Boyer, Holly. "Chesterman, Simon. Raising Arcadia." School Library Journal, Nov. 2016, p. 95. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA468699248&it=r&asid=52404696150effe7be712b8cfd9a225c. Accessed 11 June 2017.
Gale Document Number: GALE|A468699248
Secretary or General? The UN Secretary-General in World Politics
Margaret E. McGuinness
102.4 (Oct. 2008):
Copyright: COPYRIGHT 2008 Cambridge University Press
http://www.cambridge.org
Secretary or General? The UN Secretary-General in World Politics. Edited by Simon Chesterman. Cambridge, New York: Cambridge University Press, 2007. Pp. xiv, 280. Index. $85, 45 [pounds sterling], cloth; $31.99, 16.99 [pounds sterling], paper.
The question posed by the title of this collection of essays--Secretary or General? The UN Secretary-General in World Politics, edited by New York University Professor Simon Chesterman--turns out to be rhetorical. A successful secretary-general need not be an extraordinary bureaucrat or military genius, but must possess keen political instincts. Like an acrobat performing a high-wire act, the secretary-general must carefully balance a unique political independence--untethered to the interests of one sovereign state--against a required institutional and political interdependence with the Security Council and the UN member states. The book's central project, reflected as a common theme running through the contributed essays, is an understanding of the secretarygeneral as a global homo politicus.
The essays collected in Secretary or General? reveal the limits of the job: whatever good a secretary-general can contribute to the broad welfare of the globe and its inhabitants must be accomplished within a space constrained by the individual and collective political interests of the member states and the global political realities of the times. Whether dealing with the bipolarity of the Cold War, the instability of the immediate post-Cold War period, or the presence of an assertively unilateral U.S. superpower, the secretary-general's position reflects, as Kofi Annan notes in his foreword to the book, "both the character of the men or women who hold it and the changing circumstances to which they will have to respond" (p. xiii).
The authors of the book's various essays bring to the table impressive and relevant experience from inside and around the Secretariat, the Security Council, and the broad UN community. The book serves as an excellent primer for anyone seeking to understand the institutional and political context of the secretary-general's role. Chesterman has separated the essays into four groups: part I sets out the contours of the job, both as intended by the Charter's framers and as it has evolved over time; part II focuses on the secretary-general's unique role to cajole and manage (and, at times, be managed by) the Security Council as it carries out its peace and security mandate; part III turns to the secretary-general's real or potential contribution to agenda building at the United Nations and to international norm development; and part IV concludes with observations about how the political dimension of the secretary-general's job has been affected by American unipolarity and about what shifts in focus or what formal reforms to the office might be appropriate in light of today's international politics. (1)
The drafters of the UN Charter focused very little on the details of the secretary-general's job description. The Charter text reflects this inattention: under Chapter XV, the secretary-general is to be "appointed by the General Assembly on the recommendation of the Security Council" and serves as "chief administrative officer of the organization" (Article 97). He is also required to report annually "on the work of the organization" (Article 98) and empowered to "bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of peace and security" (Article 99, emphasis added). In their essay "Relations with the Security Council," James Cockayne and David Malone see these parallel textual commitments--however thin--as sowing the seeds of the political tension inherent in the job: creating an independent political role alongside the chief bureaucrat's role. A common observation throughout the book, whether in discussing the secretary-general's relationship with the Council or his role as spokesman for the "international community," is that the secretary-general has drawn on implied powers, filling in the spaces left open by the text and testing the bounds of what is politically possible.
Viewed historically, the position of secretary-general reflects the talents and ambitions of the individuals who have occupied the position. In his essay, "The Evolution of the Secretary-General," Brian Urquardt, the ultimate insider "present at the creation" of the United Nations (having served on the staffs of both the UN Preparatory Committee and Trygve Lie, the first secretary-general), traces the development of the job through the tenures of the first seven secretaries-general:
* Trygve Lie, 1946-52: established the permanent UN Headquarters in New York
* Dag Hammerskjold (1952-61): the "most remarkable" (p. 19) secretarygeneral, who "pioneered peacekeeping" (p. 23) and spurred the United Nations toward becoming a "vital force for peace and international law" (p. 21)
* U Thant (1961-71): "courageous and principled" (p. 23) secretary-general, whose inattention to administration led to the "Secretariat's bureaucratic flabbiness and decay" (p. 25)
* Kurt Waldheim (1972-81): a "limited and cautious" secretary-general (p. 26) who presided over "uneasy and divisive years" (p. 25)
* Javier Perez de Cuellar (1982-91): a "good, very low-key diplomat" (p. 26) who played a key role in resolving the Falklands war, the Iran-Iraq war, and the Soviet withdrawal from Afghanistan
* Boutros Boutros-Ghali (1992-96): first post-Cold War secretary-general possessed "draconian management style" (p. 27) and faced "extremely difficult problems in Bosnia and Herzegovina, Somalia, and Rwanda" (p. 26)
* Kofi Annan (1997-2006): first secretary-general to "be recruited from the Secretariat" (p. 27) was "outspoken" and "activist," but endured the "socalled Oil-for-Food scandal" (p. 29), which did great harm to the reputations of the secretary-general and Secretariat.
Shashi Tharoor describes the secretary-general's job as one suffering under the paradox of a political independence that is bounded by the control of quintessentially political actors--that is, the Security Council's member states. What political independence means, Tharoor points out, was first articulated by Hammarskjold, the secretary-general most responsible for shaping the job and expanding it beyond the rather scant Charter text. In his response to the declaration of Nikita Khrushchev that "an impartial international civil servant was an impossibility in a divided world in which 'political celibacy' was a fiction, Hammarskjold advanced the idea that an impartial civil servant could be "'politically celibate' without being 'politically virgin'" (p. 35). Being political without being partial, in Hammarskjold's formulation, flowed from the Charter, which empowers the secretary-general to carry out "independent implementation of controversial political decisions" that involve "the exercise of the political judgement of the Secretary-General" (p. 36).
Instead of exercising this political judgment in a vacuum, according to his own instincts, the secretary-general must, in Hammarskjold's view,
follow "as faithful an interpretation of the instructions, rights,
and obligations of the Organization as possible in view of the
international law and decisions already taken ... [T]he essential
requirement is that he does this on the basis of his exclusively
international responsibility and not in the interest of any
particular State or group of States." (P. 36)
The explicit parallel Hammarskjold made was to a particular kind of judge, a minimalist operating within a legal structure, mindful of his own biases and preferences, meticulously impartial in the context of particular disputes, loyal to the constitutional principles of the Charter, and pragmatic and incremental in building upon precedent that gives form to the office. Taking all of the above into account, Tharoor concludes that the secretary-general must "remain[] scrupulously aloof from the attractions of adopting a particular point of view on any of the major questions of the day" (p. 37).
The political high-wire metaphor can be extended to the secretary-general's peace and security functions. James Cockayne and David Malone view the secretary-general's functional and institutional relationship with the Council's permanent and rotating members as central to the political challenge of the position, in which the "Secretary-General must walk a fine line between effective cooperation and apparent collusion with the Security Council in particular" (p. 69). Because of the tension between the normative commitments of the Charter to maintain peace and security, and the practical constraints of a Council that includes five veto-wielding, permanent members with narrow and frequently conflicting political agendas, the secretary-general has no choice but "to come to terms with the geopolitical realities of the day--even as he or she attempts to reshape them " (id.).
In Cockayne and Malone's assessment, some secretaries-general have been more successful than others in managing this tension. Lie was the first to experience the downside of asserting too much independence in the context of superpower confrontation--losing his potential second term on account of his support for the Council's intervention in South Korea. And Hammarskjold, despite expanding the areas in which the secretary-general could be expected to operate as an independent political actor, was careful to carve out (quite creatively) the limited space of peacekeeping operations under so-called Chapter VI 1/2 powers, (2) which permitted the deployment of UN troops for limited, non-enforcement purposes in cases where political realities would prevent unanimous support from the Permanent Five for Chapter VII enforcement operations. But even Hammarskjold was not immune to Cold War politics, running up against both the United States (in his defense of the Secretariat against McCarthyist investigation into the Secretariat and in his rejection of U.S. actions in Guatemala in 1954) and the Soviet Union (in his handling of the Congo crisis).
The much analyzed revival of the Security Council at the end of the Cold War that began with the 1991 Chapter VII operation to drive Iraq out of Kuwait "mandated an increasingly ambitious set of peacekeeping, peacebuilding, administrative, and legal activities, frequently delegating tasks to the Secretary-General and his staff" (p. 78). While the post-Cold War era removed barriers to Council action, it also expanded the "political space available to the Secretary-General ... as the restrictions of bipolarity faded" (id.). Included in this political space was the secretary-general's ability to serve as a mediator or conciliator in armed conflicts and to leverage the office, where resources were lacking, through participation of willing member states.
Teresa Whitfield's contribution, "Good Offices and 'Groups of Friends,'" focuses on these peacemaking roles. A combined reading of Article 33(1) of the Charter, which permits member states recourse to "other peaceful means of their own choice," and Article 99, which empowers the secretary-general to bring attention to threats to peace and security, legally creates a dispute resolution role for the secretary-general and his staff. The term "good offices" encompasses the "somewhat nebulous territory" (p. 86) of peacemaking efforts made outside of the Council's mandates. The use of good offices and the broader category of informal "groups of friends"--member states organized by the secretary-general to address particular issues--is born of necessity from the fact that, despite these formal powers, the secretary-general is constrained by politics and the lack of allocated resources. These ad hoc coalitions of willing and interested intermediaries is the result of a pragmatic and flexible approach to conflict resolution.
Whitfield is right to acknowledge that these diplomatic approaches are not appropriate for every conflict, as "a group of friends will not be able to overcome underlying conditions adverse to the resolution of conflict; and in situations in which the interest of the states involved prioritize other issues ... over a settlement, their involvement may complicate rather than facilitate the Secretary-General's diplomacy" (p. 86). Indeed, what the secretary-general brings to a peace process--through good offices, groups of friends, or direct personal representatives--is highly contextual. Whether such configurations succeed depends not only on the behavior of outside actors, but also on the parties' own attitudes to the United Nations' role. Of course, the same can be said of even the most robust Chapter VII engagements by the Council (for example, in relation to Iraq). Where the United Nations enjoys broad legitimacy and outside powers are less trusted (as, for example, in El Salvador), the secretary-general can serve a useful role. Where the United Nations is viewed skeptically (or worse) by the parties (as, for example, in Bosnia), leadership by the secretary-general--whether through a friends group or direct representation--can be counterproductive. Whitfield's caution that "[a] group of friends, like mediation itself, will not be a panacea ... [and] will not on its own create or impose the conditions for peace" (p. 101) serves as a useful reminder of the need in the international organization literature for more fine-grained and comparative analyses of the added value, if any, that the United Nations and secretary-general bring to the resolution of complex disputes. (3) It may, as other contributors in the volume note, depend as much on personality and temperament as on political context. As happens with judges, not all secretaries-general have been equally suited to the role of mediator or conciliator, or even that of conflict manager.
Similarly, not all secretaries-general have been equally suited to the position's public-diplomacy dimension. In "The Bully Pulpit" Quang Trinh examines the secretary-general's power of speech in carrying out his peace and security functions, invoking (along with other contributors to the volume) the image of the secretary-general as a "secular pope." Rather than periodic encyclicals or edicts, the secretary-general convenes high-level panels, publishes reports, and occasionally invokes legal norms or morality to pass judgment on particular events or to urge action where the will of the member states is lacking. Trinh appropriately asks whether the secretary-general should engage in such activities--even if he has the broad power to do so. The answer, unsurprisingly, returns us to politics, not law. Passing judgments on the legality of the use of force--an issue central to the Charter and the Council's peace and security function--is ill advised. Kofi Annan's September 2004 declaration that the U.S.-led invasion of Iraq was illegal did not violate the secretary-general's actual powers but was, to Trinh, nonetheless a pragmatic and political error.
Ian Johnstone, in "The Secretary-General as Norm Entrepreneur," shares Trinh's view that there is little upside for a secretary-general to make such legal pronouncements, particularly where member states are still actively disputing the matter. Johnstone explores the perils of such pronouncements on law and norms by examining the secretary-general in his role as "norm entrepreneur[]" (p. 125), a term that connotes risk taking and innovation. According to the constructivist strand of international relations theory, "the international system comprises not only material capabilities (military might, economic and natural resources), but also social relationships" (id.) within a particular normative context. Norms represent "collective expectations for the proper behaviour of actors with a given identity" (id.). A norm entrepreneur mobilizes support for a particular cause through a variety of platforms or networks--nongovernmental organizations (NGOs), national legal systems, political processes, the United Nations itself--to achieve the crystallization of a norm. The secretary-general and other international civil servants are norm entrepreneurs when they perform political and operational activities, interpret the legality of particular acts, and seek to institutionalize certain normative goals. These activities--norm creation, norm institutionalization, and norm interpretation--do not arise from any textual powers in the Charter but, as Johnstone notes, reflect implicit power that is expressed whenever the secretary-general takes to the bully pulpit.
A reader might quibble with whether the secretary-general is himself a norm entrepreneur or merely the spokesperson for other norm entrepreneurs among the member states, NGOs, and a host of other actors on the UN scene--including those bodies (for example, the International Court of Justice) authorized to interpret and apply legal norms.
Regardless of definitions, it is precisely when the secretary-general speaks out on behalf of new or emerging norms, or interprets the legality of acts undertaken by member states, that he is most likely to tip the delicate political balance against him and the office. Johnstone's discussion of Kofi Annan's role in developing the "responsibility to protect" as a refinement of the broader doctrine of humanitarian intervention is a sobering example. Despite the efforts by Annan to leverage his office as a means of introducing and building consensus around this new norm of intervention--through the High-Level Panel on Threats, Challenges and Change and his own report to the 2005 World Summit, In Larger Freedom--the doctrine has failed to generate political change. Tharoor captures the limits of the secretary-general's influence in this area: "Annan's historic speech to the General Assembly in September 1999 on intervention sent set a thousand flowers blooming at think-tanks and among op-ed columnists; it helped alter the terms of the international agenda. But it did not lead to a single military intervention to protect the oppressed" (p. 38).
Given the danger of being ahead of the member states on matters involving normative change, Johnstone concludes that "the Secretary-General succeeds best when he or she joins emerging normative trends--usually first promoted by a group of states or powerful non-state actors--rather than trying to generate new norms out of whole cloth" (p. 138). Further, Johnstone notes that the secretary-general is likely to be more effective when he works toward "advancing the values embodied in the Charter in light of changing circumstances, within the constraints of what the political traffic will bear" (id.). The challenge, of course, lies in defining what is meant by the "values" of the Charter and, as with the peace and security functions more generally, in trying to gauge the political climate. These puzzles are beyond the scope of this book.
Adekeye Adebajo's chapter assessing the tenures of Boutros-Ghali and Annan--the first two African secretaries-general--against the African states' political agenda demonstrates that the more a secretary-general acts, the more likely he is to alienate one or another political interest. While Boutros-Ghali succeeded in countering what Adebajo characterizes as a previously northern bias with his Agenda for Development in 1993, his poor management style and conflicts with Washington proved to be fatal to any chance of a second term. Annan, chastened by Boutros-Ghali's experience, succeeded in reading the climate surrounding the rise of U.S. unipolarity and its accompanying skepticism of a robust United Nations, and rebuilt bridges with leadership on Capitol Hill and the American public. Yet the developing states, particularly those African states that blamed Annan for his failures while head of UN peacekeeping during the Rwanda crisis, were hardly delighted with this cozying up to Washington.
But as Edward Luck and James Traub discuss in their respective essays on the secretary-general's relationship with the United States, establishing a close, if not entirely trusting, relationship with Washington was necessary if Annan was to have any hope of success. Luck argues that Boutros-Ghali ultimately failed because he attempted to move beyond the Charter's narrow bounds in defining his role. Annan succeeded when he operated within the political space that the United States tolerated; he faltered during his second term by pushing for programs and reform that exceeded what was politically possible for the United States. Setbacks for the secretary-general's office rarely result from failures to speak or act, but rather arise at the moments that an invisible line is crossed--leading to push back from a coordinated group of states, a superpower, or the collective membership itself, all jealously guarding the prerogatives of sovereignty that characterize the UN system. In those instances, whether the secretary-general merely loses his balance or instead falls off the high wire depends on whether any state or group of states is prepared to support him.
Because of that danger, the current political climate may counsel for a more modest secretary-general role, as Luck and David Kennedy argue. Kennedy's contribution-"Leader, Clerk, or Policy Entreprenuer?"--offers a trenchant and mostly critical view of the secretary-general's office, portraying it in less ambitious and ultimately more realistic terms. Kennedy's earlier work carried a warning for those, including the secretary-general, who seek to leverage the tools of cooperative multilateralism to overcome violence, depredations, and fear: good intentions are not the same as good outcomes. (5) This warning is particularly germane in the case of humanitarian intervention. Kennedy persuasively challenges the premise that the secretary-general can ever purport to speak on behalf of an "international community," because, for Kennedy, such an international community (or global congregation responding to a secular pope) is a construct of elites in New York and Geneva. Nor, in the age of communication technology that erases the boundaries between the local, the national, and the international, does Kennedy find any particular demand for one space in which to facilitate the work of international diplomacy, a role that the United Nations once played. In this "decentralized and horizontal" (p. 164) world, no one place or one institution serves as norm creator, interpreter, or implementer. Basic decisions about peace and security are shared by a public/private "global elite"--"lawyers, economists, businessmen, academics, journalists, and the like"--who form "expert consensus" (p. 166) and a political context for armed conflict.
To Kennedy, the secretary-general cannot properly be said to be balancing international and national politics, for there is no separate "national" or "international" politics; rather, "the largely uncoordinated reactions of hundreds of individual and institutional players" (p. 168) determine what policies are effective in solving particular problems. Under this view, the United Nations has no monopoly as the central coordinator or forum or main facilitator of actions taken to address problems. While a "strong and charismatic Secretary-General could undoubtedly make a contribution in this new multilateralism," it is only "as one player in a complex and shifting diplomatic, economic, and cultural order, not as the 'world's chief diplomat'" (id.).
Perhaps because the book's focus is on the secretary-general's role in "world politics," the essays shed little light on the secretary-general's role as chief administrative officer or titular head of all peacekeeping operations. Several of the contributors appear inclined to view the job's administrative aspects either as beyond the political or as "politicized" only for cynical reasons. The Volcker oil-for-food commission's investigation of the Secretariat, along with the revelations of corruption and self-dealing within the bureaucracy that followed, is treated purely as a politically motivated act set in motion as retaliation for Annan's political missteps. The book contains little discussion of UN administrative reform in the direction of increased transparency and accountability. To be sure, as Chesterman and Thomas Franck note, despite his designation as the chief administrative office of the organization, the secretary-general "frequently lacks sufficient internal authority to be an effective administrator of the organization, while also lacking the resources to exercise his or her external functions with credibility" (p. 232). As to the role of "general," Chesterman and Franck correctly note that "the formal title of commander-in-chief of the world's peacekeepers rarely means actual command authority over national contingents, even when they wear blue helmets" (p. 233). It is, indeed, a central anomaly of the job's evolution that, as the secretary-general's political power grew, his administrative power--control over the budget and resource allocation-diminished. This change is due in part to the rise of the G-77 and the power of the small states in the General Assembly who control allocation of UN resources, in part to the growth and decentralization of UN tasks that affect the peace and security functions, and in part to the growth of regional organizations and NGOs.
The lack of an essay addressing the position's administrative and peacekeeping oversight roles is a weakness of the collection. Despite the ways in which questions of internal UN governance have been manipulated for domestic political purposes in the United States, the issues of transparency and accountability will continue to be a major challenge for the current secretary-general and will also be an ongoing issue for the United States, the largest single contributor to the UN system. As James Traub illuminates in his book on Kofi Annan's tenure, (6) the secretary-general plays a key role in those places in which the United Nations is actively engaged in peacekeeping, nation building, refugee assistance, and disaster relief. Some treatment of these dimensions of the secretary-general's job-and the degree to which General Assembly oversight of some of these areas constrains the secretary-general's political space--would have enriched the collection. As with bureaucratic accountability in domestic political systems, the management dimensions--whether as secretary, general, or otherwise--are highly relevant to the "politics" of the secretary-general's job.
Margaret E. McGuinness
University of Missouri Law School
(1) The volume also includes a short documentary appendix of relevant excerpts from the Charter, UN preparatory discussions, resolutions, and papers addressing procedures for selecting the secretary- general.
(2) During the Korea crisis in 1950, the General Assembly passed the "Uniting for Peace Resolution," which permitted the Assembly to request actions to secure peace and security where a veto or threat of veto blocks Council action. Hammerskjold was able to invoke this power during the Suez crisis in 1956, creating the UN Emergency Force (UNEF) and a precedent for blue helmet operations--"Chapter VI 1/2"--that fall halfway between the pacific dispute resolution of Chapter VI and the enforcement actions of Chapter VII.
(3) One excellent study of the United Nations' effectiveness in postconflict peace building is James Dobbins, Seth G. Jones, Keith Crane, Andrew Rathmell, Brett Steele, Richard Teltschik, & Anga Timilsina, The Un's Role in Nation-Building: From the Congo to Iraq (Feb. 2005), at
(4) See, e.g., Jose Alvarez, The Schizophrenias of R2P, Asil Newsletter, Summer 2007, at 1 (arguing that "[w]e should be cautious about turning [responsibility to protect] from political tool to legal principle").
(5) See David M. Kennedy, The Dark Side of Virtue (2003)
(6) James Traub, The Best Intentions: Kofi Annan and The Un in the Era of American World Power (2006).
McGuinness, Margaret E.
Source Citation (MLA 8th Edition)
McGuinness, Margaret E. "Secretary or General? The UN Secretary-General in World Politics." American Journal of International Law, Oct. 2008. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA205988236&it=r&asid=75d00cbc28f9eb3894a84bcfe11be646. Accessed 11 June 2017.
Gale Document Number: GALE|A205988236
Building a state in Iraq: is there a good precedent? An interview with Simon Chesterman: President Bush said that the American people were going to bring peace and prosperity to the people of Iraq, just as they had to the people of Afghanistan. This suggested that the benchmark was going to be very low
Priscilla Ryan
57.1 (Fall 2003): p219.
Copyright: COPYRIGHT 2003 Columbia University School of International Public Affairs
http://jia.sipa.columbia.edu/
Journal: What actors are involved in the modern state-building process?
Chesterman: Well, it depends how you define state building, of course. If you mean actors providing support to institutions of the state for, during and after conflict then there is a whole range of activities in the political, economic and military spheres. The most prominent examples are those situations where the international community in some form or another has played a large role in reconstructing the institutions of the state. So in the Bosnias, the Kosovos, the East Timors, Afghanistans and Iraqs of this world, we have seen something of an evolution in thinking.
By the mid 1990s the United Nations (UN) had been involved in a series of operations starting in Namibia (1989) and Cambodia (1992-1993) where it played a role in reconstructing a state within a fairly limited time-frame. Around the same time, however, dissatisfaction with the UNs role in Bosnia during the war led to a rejection of a major UN role in the reconstruction under the Dayton Accords. So you had this new entity created, the High Representative. But the High Representative was soon seen as embodying many of the bureaucratic problems of the UN and adding few benefits. So in Eastern Slovenia (1996-1998), the UN played a major role, and then in Kosovo (1999-), the UN was introduced as a means of smoothing over some of the political tensions that the Kosovo intervention had given rise to. And in East Timor (1999-2002) the role of the UN was relatively uncontroversial.
Then September 11th happens, and suddenly the agenda of state building has changed radically. It is now summed up in the Bush administration's National Security Strategy, which says that failing states are more of a threat to the United States than conquering ones. The combination of this and the Bush administrations visceral rejection of the United Nations as such meant that the UN was only going to play a minor role in Afghanistan--a significant role but a minor role. Then given the extraordinary controversy caused by Iraq, the UN was never going to have a serious role to play there.
In fact we've seen a return to the domination of state building activities by national actors. The better comparison with Iraq, rather than looking back at more recent state-building activities, is actually to regard Iraq as a military occupation--as it is now regarded by the Security Council and indeed recognized by the United States and the United Kingdom. So, the model in Iraq is much less Kosovo and East Timor, and much more Germany and Japan after the second World War.
Journal: Did the events of September 11th have more of an impact on modern state building activities than experiences such as Namibia, Kosovo and East Timor?
Chesterman: Through the 1990s there were a series of lessons that were to some extent learned. But there is considerable evidence that they have not been internalized. Take some of the lessons we should have learned from Bosnia. For example, the idea that we should have war crimes tribunals today and elections tomorrow has, I think, been proven a little bit presumptuous in terms of the time frame within which these changes can take place. In Bosnia the commitment to having elections six to nine months after the Dayton Peace Accords was a disaster, because popular opinion was mobilized for political purposes along precisely the same line it had previously been mobilized for military purposes. If you want to get people to vote for you, it's easiest to do so on precisely the same issues on which you got them to fight for you. Nevertheless, pressure to withdraw troops and funds from Afghanistan is seeing a rush to elections there at a time--2004--when the political and organizational basis for elections will not.
A second thing that we thought had been learned was that state building required a sustained commitment. So when President Clinton sent troops to Bosnia, saying they would be home by the end of 1996, no one really believed that at the time, and American troops are still in Bosnia. They've been reduced slightly, but they are still there. But in Afghanistan, again, there resources committed to post-conflict reconstruction have been woefully inadequate. And in the lead-up-to war against Iraq, we saw active efforts to downplay the likely costs of the aftermath, which are now spiraling out of control.
A third area in which we thought lessons had been learned was in the need for peace and scurity during the emergency phase. In particular this came out of Kosovo and East Timor. In Kosovo, the failure to establish the rule of law--law and order and military control from the outset--severely undermined the capacity of the international presence to establish its credibility. Things were run slightly better in East Timor. We thought these three lessons had been internalized, but it seems all three had been forgotten when the United States came to Iraq. On the war crimes elections question, the United States wanted very early to hand it over to local control, and then it had to retreat from that. On the question of length of time for which a military presence would have to commit itself, the US initially said that it would start bringing its troops home and then had to amend that. Most obviously on the law and order question was the problem of widespread looting, and very little has been done to prepare for the peacekeeping, while planning for war had been extremely well advanced.
Journal: The two main actors you mention are the UN and then actual states or nations. What other actors are involved?
Chesterman: States have been reintroduced as actors. In addition to international organizations and states, there are clearly other players. Most prominently on the development side are organizations like the OSCE, which has played a major role in things such as election monitoring. The United Nations Development Progamme (UNDP) and the World Bank have played a significant role in recovery and reconstruction, working on the economic side. Although, really, the dominant actors have been states. This is obvious in the reconstruction sector, where there has been a great deal of reluctance on the part of states to hand over control of funds devoted to reconstruction to any multilateral body. There are good reasons and bad reasons for this. The good reasons for states to not want to hand over control to multilateral agencies are concerns about accountability, about the slow speed of disbursement, and a concern about funds being used in an appropriate way, given that it is taxpayers' money. The bad reasons are that donors have egos. Countries have egos and countries often want to have pet projects either that satisfy domestic constituencies, or that use domestic non-governmental organizations (NGOs). What this means is that coordination is extraordinarily difficult. So in many of these situations you've got the problem that, for example, everyone wants to queue up to send girls back to school, but no one wants to pay military salaries or build prisons.
Perhaps another way of answering this question is that in all these situations on the economic side--on the reconstruction side--people want to draw comparisons with the Marshall Plan. Now the Marshall plan was a massive reconstruction project, essentially led by the United States, but funded through European states and governments. There are problems with this comparison, because there were three major differences in the Marshall Plan's approach to reconstruction. The first is that the Marshall Plan was part of a geo-strategic agenda of the United States. It came after the Second World War and the strategy was fairly clear. It was about trying to reconstruct Western Europe, both so that you could consolidate it and subsequently exclude the influences of Communist activities from the East. Today we don't have that kind of strategy. We have very piecemeal interventions in crises that are of a passing interest to the major states. This makes life pretty difficult.
A second major difference is the number of actors involved. A combination of the proliferation of states that are acting and the number of sources of funding makes coordination difficult. This is further exacerbated more by the increased number of recipients. NGOs have played a very minor role. Civil society organizations played a very minor role in the Marshall Plan. Now many of the major donors will only give money to NGOs, and so that again makes coordination very difficult.
A third basic difference, which links to the previous one in particular, is that generally back in the days of the Marshall Plan there was faith in the idea of state intervention. Today there is much greater skepticism of the capacity of government intervention to provide the public with goods as opposed to supporting private enterprise, non-governmental organizations and so on.
Journal: Within these groups of actors, how do their perceptions differ?
Chesterman: The best way of illustrating this is to look at the question of ownership. Ownership is invoked in all of these situations. It is said that in Bosnia you need local ownership of the political process. In Afghanistan you need local ownership of the development process. Usually this isn't what is meant at all--and it certainly is not meant seriously because if you could have local ownership of the political process in Bosnia then you wouldn't need an international presence at all. So I think it is disingenuous to say that ownership is the means of achieving change. Ownership--local control--might be the ends, but by definition you have an international presence there so it is not the means.
That being said, I think it is important and entirely appropriate to do whatever one can to build up local capacities through handing over control of what you can to the local population. So that means you are not abandoning the idea of ownership, you are just taking it more seriously. Where this has played out quite interestingly is in Afghanistan. Afghanistan is unusual for having a level of local capacity far beyond that of the other situations where the UN or other international actors have attempted to reconstruct a country. In Afghanistan, you had people like Ashraf Ghani, who is a former senior official at the World Bank, an anthropologist. So he knew exactly how the development community worked and could speak to them as an equal. There was also a lot of technical capacity on the part of other Afghans.
This is even more the case in Iraq. Iraq is probably the most sophisticated country where in recent memory the international community has attempted to engage in reconstruction. It is certainly the most developed since Germany or Japan. This is where the analogy is probably appropriate. So the idea that you need to go in and take control of everything is simply wrong headed. But the problem in Iraq is that the United States refused to say that they would take control of virtually anything within the Iraqi bureaucracy. Then they arrived and it turned out that there was no one holding the reins and chaos ensued.
The UN is notorious for being like a general who plasn to re-fight his last war. So there is actually a track of people who went from Cambodia to Bosnia to Kosovo to East Timor to Afghanistan. In Bosnia, as I said before, one of the problems that was identified was having elections too early, so when they went to Kosovo they said right, well we are not going to have elections early this time. When in fact in Kosovo the popularity of certain leaders might have meant that elections early would have been a good thing. One problem in Kosovo was the failure to establish law and order very quickly So when they went to East Timor, they said we need peace and security. We need to clamp down, when in fact that probably wasn't the major problem in East Timor. The major problem there was development.
Brahimi, at the time that the East Timor operation was being set up, argued that you shouldn't have a major international presence there. Rather you should say all right Xanana Gusmao should be president and we are going to bring in a kind of cabinet and have a light footprint of international staff. That was rejected in East Timor--for some good reasons, though not all of them were good. But later this was the model that Brahimi himself brought to Afghanistan.
Learning, then, is serial in the UN. People do learn from their last experience. But one of the major difficulties within the UN is the lack of a culture of questioning. This has happened in each of its operations. The staff of the UN are not typically the kind of people who admit ignorance. One of the best things about the UN is that the staff are typically can-do people. So, if the question is how to get ten thousand tons of grain from point A to ten thousand starving refugees in point B it doesn't really matter how you do it, you just get it done. You need operational people in such circumstances. When it comes to running a country, however, just making do and getting by can actually undermine capacity. This is one of the problems we had in East Timor, where there was this belief that bringing in international staff to fulfill a civil service function would enable an East Timorese person standing alongside him to learn about that civil service function. But doing something is not the same as teaching someone.
So should you try to develop models for this type of thing? Well I don't think you can and I don't think you should. Each of these situations is going to be necessarily distinct. The idea that we can come up with a model of how to run a country, I think, would underestimate the nuances of each individual situation and therefore miss out on the most important dynamic in any of these situations which is the dynamic that emerges between the international staff and the local staff. How that plays out is probably the most important part of determining the success or failure of a mission.
Journal: How do you see the Future of nation or state building in Iraq? What lessons should be applied and which should not be applied?
Chesterman: Iraq is much simpler. There are really two types of situations where the UN has gotten involved, or where the international community has gotten involved with state-building operations. Either institutions of the state are so divided that they can't be allowed to govern their territory as in Bosnia or Kosovo, or the institutions of the state are non-existent and therefore you need massive international support, as in East Timor or to some extent in Afghanistan. Iraq doesn't suffer from either of these. The US and British aims aren't, despite what has been said, to protect Iraqis and help them overcome a civil war. The aim is to constitute a friendly government. Given the amount of capacity in Iraq, the challenges confronted there are going to be very different than other situations, as we are seeing at the moment. There will actually have to be military action to complete the winning of the war.
So what then can you learn from these previous operations? I think the most interesting thing in Iraq is the extent to which the US in particular, after three or four weeks, was being criticized for the way it was doing things in Iraq, while it took two years for the international community to criticize the international actors in Bosnia. The similarities are quite striking. On the one hand, in Bosnia, over the period of two years you had disingenuous concessions of ownership that had to be backed away from. In Iraq you have a clearly steep learning curve where it was recognized that handing over control to a bunch of Iraqis of questionable legitimacy was going to be a probable for reconstruction, and so the US wisely abandoned that.
The US also engaged in a serious restraining of its own staff in an attempt partly to remove the military character of the mission. They took out the retired general Jay Garner and brought in Paul Bremer, and they delayed some of the consultation processes, which I think was all good. This is not to say that you don't need to hand over control to the local population, but I do think that what you need in these circumstances is political certainty And this is really the underlying problem in places like Bosnia and Kosovo: the lack of political certainty and the inconsistency of international behavior. In a situation like Iraq it is entirely appropriate to admit that it is a military occupation. The future status of Iraq, as the United States has reconfirmed again and again, is that it will be handed over to the Iraqis, but handing over power too quickly can cause problems. It may lead to, for example, a fundamentalist regime being elected to power, by having the election tomorrow. However, a tremendous problem could also be created if power is handed over and then taken back, as in 1997 in Bosnia and on occasion in Kosovo with the provision of ambiguous power. This just led to confusion.
Things are much simpler if you can say for the time being--that for the next two years--we the Coalition Provisional Authorities (CPA) have all of the power, but you are going to get all of the power. That is essentially what the UN said in East Timor. That political certainty is probably the major thing that needs to be internalized and clarified in Iraq.
The kinds of lessons that weren't learned concern the emergency phase military responsibility for law and order. Indeed there is some indication that the Department of Defense actively resisted even providing Iraq with an American capacity for providing for law and order. It is suggested that a very small number of military police were sent into Iraq precisely to avoid this. There was a desperate hope for a best case scenario Iraq, whereby the military would continue to function in some capacity and the US wouldn't have to do it.
Journal: How do you in the long run see the situation in Iraq unfolding? Do you see it being successful, or unsuccessful?
Chesterman: Iraq has both the blessing and the curse of being of strategic interest to the United States in a way that Afghanistan is not.
It is a blessing, because it means that the US cannot walk away from Iraq the way it appears to be walking away from Afghanistan and has walked away from many other missions in the past. The combination of oil, the proximity to Israel, Syria and Iran mean that the United States will not simply allow Iraq to collapse into a heap.
The curse however, is that this type of interest when it comes to a state building operation, doesn't necessarily lead to peace and prosperity for the people of Iraq. What it amounts to is the desire for stability. One of the great concerns going into the Iraq operation was mentioned by President Bush himself in 2002. I remember him saying that the American people were going to bring peace and prosperity to the people of Iraq, just as they had to the people of Afghanistan. This suggested that the benchmark was going to be very low.
Ensuring stability and ensuring an ongoing American commitment to Iraq might mean that Iraq ends up something like Saudi Arabia, with a repressive regime with tremendous American support, or it might end up like Egypt, another repressive regime. From the American perspective though, the question really is whether that occupation process is going to mean that it is going to be like Egypt or like Iran under the Shah, or if it is going to be more like the West Bank. At the moment it looks more and more like the West Bank.
Simon Chesterman is a senior associate at the International Peace Academy.
Ryan, Priscilla
Source Citation (MLA 8th Edition)
Ryan, Priscilla. "Building a state in Iraq: is there a good precedent? An interview with Simon Chesterman: President Bush said that the American people were going to bring peace and prosperity to the people of Iraq, just as they had to the people of Afghanistan. This suggested that the benchmark was going to be very low." Journal of International Affairs, vol. 57, no. 1, 2003, p. 219+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA109272596&it=r&asid=b66db822c32c946baa33cc055e72920d. Accessed 11 June 2017.
Gale Document Number: GALE|A109272596
QUOTE:
ndividuals give government and private institutions information in exchange for security and convenience. Chesterman's analysis of the changes in domestic surveillance activities is carefully researched, thoughtfully organized, and well-supported; however, his conclusions regarding this new social contract need to be more fully developed.
One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty
Priscilla M. Regan
127.2 (Summer 2012): p340.
Copyright: COPYRIGHT 2012 Academy of Political Science
http://www.psqonline.org/History.cfm
One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty by Simon Chesterman. New York, Oxford University Press, 2011. 320 pp. $45.00.
The debate about the balance between privacy and security has intrigued scholars for decades and has become of increased relevance in our post-September 11 era. Simon Chesterman approaches this issue from a perspective yielding some very interesting insights. He argues that the traditional distinction between foreign and domestic intelligence has eroded due to the nature of terrorist threats, globalization, and innovations in communications and information technologies. The focus of Chesterman's analysis is on domestic intelligence activities, especially those of the Federal Bureau of Investigation and Britain's Security Service (MI5). His conclusion is that in democratic societies, a new "social contract" is emerging by which individuals give government and private institutions information in exchange for security and convenience. Chesterman's analysis of the changes in domestic surveillance activities is carefully researched, thoughtfully organized, and well-supported; however, his conclusions regarding this new social contract need to be more fully developed.
Chesterman organizes the book into three sections. The first explores the political and legal context in which intelligence services operate. Here he reveals that there had been "shared understandings of the 'rules of the game'" (p. 37), based in large part on trust, among communities of intelligence officials during the Cold War era. The emergency powers and secrecy underscoring post-September 11 intelligence activities challenge this understanding, both domestically and internationally, making it increasingly problematic to hold intelligence services accountable within a democratic framework. Chesterman's analysis of the "barriers to effective accountability" (p. 77) is thoughtfully crafted and effectively lays the basis for his subsequent analysis.
In the second section, Chesterman provides three examples of the practice of intelligence. In the United States, his focus is well-placed on the "outsourcing" (chapter 4) of intelligence activities; he provides numerous examples of the reliance on private contractors, explains the reasons for this development, and raises the question of whether it is possible to restrict such outsourcing on the basis that these practices are "inherently governmental" (p. 125) functions. Chesterman next examines practice in Britain with particular attention to the use of closed-circuit television and the generally failed attempts to legally regulate its use. The final chapter in this section explores the United Nations' lack of intelligence; although this is an important topic, it does not seem to fit well conceptually into Chesterman's overall perspective or inform his conclusions.
In the final section, Chesterman tackles the pressing questions of how accountability can be effective given the changed nature of intelligence services. He argues that reliance on traditional government oversight will not be sufficient and makes a convincing case for active roles by civil society actors, especially the media. Secondly, he proposes that the focus of accountability should be less on the collection of information and more on its use. This is an interesting distinction but one that is less meaningful than he imagines, as practice has shown that once information is collected, compelling cases can be crafted for why it should be creatively mined. In chapter 8, he raises questions about accountability and whether indeed it is possible; his conclusions here are less clear than they might be, as he concludes somewhat vaguely that "the precise details of an accountability regime are less important than clarity as to its existence and scope" (p. 241). Finally, Chesterman poses the intriguing possibility of a new social contract for this post-September 11 world. Here I expected more than I think he delivered. The notion of a "social contract" as a way of navigating and understanding the changes in the intelligence world is intriguing--but he leaves the hard intellectual work of what this would entail to another book.
PRISCILLA M. REGAN
George Mason University
Regan, Priscilla M.
Source Citation (MLA 8th Edition)
Regan, Priscilla M. "One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty." Political Science Quarterly, vol. 127, no. 2, 2012, p. 340+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA298503102&it=r&asid=09d9625184f4d2e9e9e51591ccca51b0. Accessed 11 June 2017.
Gale Document Number: GALE|A298503102
QUOTE:
Chesterman's new work is a useful corrective to those who would cheerily dissolve the distinction between legality and power, or between legal analysis and agitprop. While the book is subtitled Humanitarian Intervention and International Law, its scope is considerably broader than a discussion of any purported customary international law right to use unilateral force to prevent a humanitarian or human rights `catastrophe'. It treats carefully the question of whether a right to humanitarian intervention pre-existed the UN Charter, or has crystallised subsequently, but also devotes considerable space to the new legal modalities of the use of force that have emerged in the last 15 years.
Just War or Just Peace? Humanitarian Intervention and International Law
Nehal Bhuta
25.3 (Dec. 2001): p843.
Copyright: COPYRIGHT 2001 Melbourne University Law Review
http://www.law.unimelb.edu.au/mulr/issues
by Simon Chesterman (Oxford: Oxford University Press, 2001) pages i-xxix, 1-295. Price $145.00 (hardcover). ISBN 0-19-924337-9.
I INTRODUCTION
Which are we: beasts because we make war, or angels because we so often
seek to make it into something holy? (1)
In his essay `Eternal Peace', (2) Kant expresses some bemusement that the word `law' (Recht) is still used in the discourse of war. He finds it surprising that the word
has not been entirely banned from the politics of war as pedantic, and that
no state has been bold enough to declare itself publicly as of this
opinion. For people in justifying an aggressive war still cite Hugo
Grotius, Pufendorf, Vattel and others (all of them miserable consolers).
(3)
Kant's reflection on states' repeated recourse to the language of `law' and `right' in order to justify the pursuit of power through violence nevertheless leads him to the sanguine conclusion that
there exists in man a greater moral quality ... to try and master the evil
element in him ... and to hope for this in others. Otherwise the words law
and right would never occur to states which intend to fight each other,
unless it were for the purpose of mocking them ... (4)
The sage of Konigsberg's transcendental deduction of the foundations of an international legal order nevertheless carries with it the awareness that states frequently invoke international law -- and international lawyers -- to legitimate power political objectives. Not infrequently, it seems, international lawyers offer `miserable consolations' for inter-state violence by cloaking raison d'etat (reason of state) with portentous legal rationales. Thus, Grotius' celebrated treatise on a right of free innocent passage on the seas, Mare Liberum, (5) developed as an apologia for Dutch efforts to wrest control of trade to the East Indies from the Portuguese. (6) Similarly, his concept of states' `right to punish' conduct against the `law of nature' for the sake of `vindicating the cause of the oppressed' -- a concept within the genealogy of modern notions of obligations erga omnes, universal jurisdiction and humanitarian intervention -- coincided with Dutch imperial expansion. As Richard Tuck observes, `[t]he idea that foreign rulers can punish tyrants, cannibals, pirates, those who kill settlers, and those who are inhuman to their parents neatly legitimated a great deal of European action against native peoples around the world'. (7)
The legal regulation of the use of force continues to be an area where the line between legal reasoning and audacious legitimation is frequently blurred. There persists, it seems, a role for international lawyers in subtly vindicating raison d'etat by elaborating latter-day versions of a `right to punish'. The United States' 1989 invasion of Panama -- an unambiguous violation of the UN Charter and condemned by all other members of the Organization of American States -- is thus defended as a `lawful response to tyranny' based on a putative right to unilateral pro-democratic intervention. (8) Similarly, the maintenance of aerial exclusion (`no-fly') zones over northern and southern Iraq by the United States and the United Kingdom, and air strikes in punishment for failing to comply with a weapons-inspection regime, are claimed to be impliedly authorised by the United Nations Security Council, although no express wording is to be found in any relevant resolution. (9)
In light of this historical context, the heralding by some international lawyers of a new `right of humanitarian intervention' in the aftermath of the use of force against the former Republic of Yugoslavia by the North Atlantic Treaty Organisation (`NATO') should be approached with caution. Some writers, such as Michael Glennon, abandon any pretence of legal analysis and instead laud `America's new willingness to do what it thinks right -- international law notwithstanding.' (10) On this view, the justness of NATO's use of force is `evident' -- perhaps even axiomatic, as no argument is advanced -- and represents the `ideal of justice backed by power'. (11) Those pondering the validity of intervention `should not be daunted by fears of some lofty, imagined temple of law enshrined in the UN Charter's anti-interventionist proscriptions.' (12) The new interventionists must find ways to overcome the resistance of `the defiant, the indolent, and the miscreant', (13) who perhaps will suffer the same fate as `cannibals, pirates, those who kill settlers, and those who are inhuman to their parents'.
Dr Chesterman's new work is a useful corrective to those who would cheerily dissolve the distinction between legality and power, or between legal analysis and agitprop. While the book is subtitled Humanitarian Intervention and International Law, its scope is considerably broader than a discussion of any purported customary international law right to use unilateral force to prevent a humanitarian or human rights `catastrophe'. It treats carefully the question of whether a right to humanitarian intervention pre-existed the UN Charter, or has crystallised subsequently, but also devotes considerable space to the new legal modalities of the use of force that have emerged in the last 15 years. The latter developments, beginning after the end of the Cold War, have introduced new dimensions into the practice of the Security Council, and portend an unsettling new topography in which the Security Council's supreme authority over nondefensive uses of force is by turns either co-opted or ignored. At the core of Dr Chesterman's book is the unfashionable contention that the collective security framework of the UN Charter should be defended, precisely because it seems ultimately more likely to preserve a thin rule of law in international affairs than any `right' of unilateral intervention wielded selectively by powerful states.
II A CUSTOMARY RIGHT OF HUMANITARIAN INTERVENTION?
The first two chapters of the book investigate whether a `right to humanitarian intervention' can be found in pre-UN Charter treatises and texts of international law, or in post-Charter state practice and opinio juris. The examination eschews the breathless enthusiasm for the purported `right' of more superficial texts (14) and also avoids the assumption that a seemingly laudable moral imperative must find expression in a legal one. With a sobriety and attention to detail that characterises the work generally, Dr Chesterman reviews both canonical texts of international law and those instances of state practice and opinio juris from the pre- and post-Charter eras most commonly cited as evidencing the existence of a `right to intervene' for `humanitarian purposes'. (15)
Although the use of force as a means of settling disputes between states was not categorically prohibited until the advent of the UN Charter, precisely what constituted a `permissible' intervention before 1945 is revealed to be very uncertain. The lineage of `humanitarian intervention' is traced to antecedents such as the `right to punish' proposed by Grotius, (16) who in turn derived his rather bellicose (17) conception of `war as punishment' from the prevalent view among scholars of the humanist school that war could be justly waged against those violating `the common law of humanity.' (18) As Richard Tuck's survey of the humanist tradition reveals, its proponents were self-consciously preoccupied with the legality of imperial conquest, and invoked such notions as `the league of human society' and `natural slavery' to construct indigenes of the New World as justifiable objects of attack and enslavement. For, it was contended, those who `practised abominable lewdness even with beasts, and who ate human flesh ... are contrary to human nature, ... [and] since we may also be injured as individuals by those violators of nature, war will be made against them by individuals.' (19) When Thomas More's Utopians `go to war only for good reasons ... [such as] to liberate an oppressed people, in the name of humanity, from tyranny and servitude', (20) it is important to appreciate the particular definition of the `humanity' in whose name war was waged.
Nevertheless, as Dr Chesterman notes, Grotius' concept of a `right to punish' was not accepted by all of his contemporaries or their successors. The humanists' belligerence towards `barbarians' and other inferior peoples was challenged by other European jurists (such as Dominicans and Jesuits) who judged warfare by more restrictive criteria and questioned the legitimacy of the conquest of the New World. (21) The Lutheran Pufendorf, who lived in the group of European states at risk from militarist expansion by imperial powers, was unsurprisingly unenamoured of Grotius' liberal interpretations of jus belli, rejecting a state's right to punish except in retaliation for injuries directly inflicted upon it by other peoples:
[W]e are not to imagine that every Man ... hath a Right to correct and
punish with War any Person who hath done another an Injury, barely upon
Pretence that common Good requires, that such as oppress the Innocent ought
not to escape Punishment, and that what toucheth one ought to affect all.
For otherwise, since the Party we suppose to be unjustly invaded, is not
deprived of the Liberty of using equal Force to repel his Enemy, whom he
never injured; the Consequences then would be, that, instead of one War,
the World must suffer the Miseries of two. Besides, it is, also, contrary
to the natural Equality of Mankind, for a Man to force himself upon the
World for a Judge, and Decider of Controversies. Not to say what dangerous
Abuses this Liberty might be perverted to, and that any Man might make War
upon any Man upon such a Pretence. (22)
Wolff and Vattel, writing at a time when the emergence of recognisably modern nation-states demanded a stronger theorisation of `state sovereignty', (23) echoed Pufendorf's concern about the `dangerous Abuses' that a `right to punish' may engender. Wolff framed his rejection of the `right to punish' in terms more familiar to the modern international lawyer: the right of sovereign states to be free from external interference in their internal affairs. (24) Vattel endorsed a qualified right to assist subjects of another state resisting `insupportable tyranny' if they requested help, but otherwise rejected penal wars of the fully Grotian type: `To intermeddle in the domestic affairs of another Nation or to undertake to constrain its councils is to do it an injury.' (25)
State practice and opinio juris of the 19th and early 20th centuries are no more conclusive as to the existence or content of a `right' of humanitarian intervention. French, British and Russian intervention in the Balkans to support Greek insurgents, the United States' intervention in Cuba to aid the Cuban revolt against the Spanish, and the French expedition to Syria to protect the Lebanese Maronites, are all examined by Dr Chesterman and found colourable by Great Power rivalry, colonial design or suspicious timing. While the United States' intervention in Cuba is referred to as `perhaps the closest example to unilateral humanitarian intervention in pre-Charter state practice', (26) it is also acknowledged that Cuba ultimately became an `American protectorate', (27) illustrating that expressions of humanitarianism could serve imperial purposes on the cusp of the 20th century no less than in the 17th century. (28) Ultimately, various versions of a procrustean `right' of humanitarian intervention -- from `war as punishment' to intervening `on behalf of the oppressed' -- are found to inhabit a nether region (or `lacuna', as Dr Chesterman puts it) between positive right and categorical proscription. (29)
Article 2(4) of the UN Charter proscribes the threat or use of force against the territorial integrity or political independence of states, or in any other manner inconsistent with the purposes of the United Nations, subject only to the inherent right of self-defence. (30) Chapters VI and VII of the Charter confer primary (if not exclusive) authority to authorise non-defensive uses of force on the Security Council, which is charged with supervising the maintenance of international peace and security. The Charter framework is accepted as inaugurating a new era in the legal regulation of the use of force, and would seem to resolve the ambiguity of unilateral `humanitarian intervention' on the side of illegality: unless defensive or authorised by the Security Council, an armed attack against a state's territorial integrity or political sovereignty is prohibited. This reading of the plain words of the Charter was confirmed by the International Court of Justice in the Corfu Channel (31) and Nicaragua (32) cases. In Corfu Channel, the Court rejected any right of unilateral intervention (even as a reprisal), (33) while in Nicaragua it opined that the prohibition on the use of force was a jus cogens norm, (34) violation of which
could not be the appropriate method to monitor or ensure [respect for human
rights].... The Court concludes that the argument derived from the
preservation of human rights in Nicaragua cannot afford a legal
justification for the conduct of the United States ... (35)
Some of the closest legal argument in Dr Chesterman's work is his convincing refutation of scholars who propound a narrow reading of article 2(4) in an effort to render it compatible with a purported right of humanitarian intervention. Put simply, their contention is that article 2(4) does not prohibit force which is not used to usurp another state's territory or impose alien rule upon its peoples, or which is used to promote one of the purposes of the United Nations. (36) The argument has a superficial attraction, but is a specious reading of the relevant Charter provisions. As Dr Chesterman demonstrates, the intention of the drafters as discerned from the travaux preparatoires was to prohibit the use of force in the broadest possible terms, so as to render trans-border armed attacks illegal. (37) To suggest that armed attacks which do not seize territory or colonise a state are not against that state's `territorial integrity nor political independence' is to adopt a construction worthy of Orwellian Newspeak. (38) Similarly, the words `or in any other manner inconsistent with the Purposes of the United Nations' is revealed to have been inserted not to create new exceptions to the prohibition of the use of force, but as a residual phrase to ensure an `absolute all-inclusive prohibition; the phrase "or in any other manner" was designed to insure that there should be no loopholes.' (39) In any event, while the promotion of human rights through `international cooperation' is to be found among the purposes of the United Nations, the first listed purpose in article 1 is the maintenance of international peace and security through the prevention and removal of threats to the peace, the suppression of breaches of the peace, and the peaceful settlement of disputes. While it is uncontestable that violations of internationally recognised human rights cannot be claimed to fall exclusively within the domestic jurisdiction of states, it does not follow that hortatory statements concerning human rights protection within the Charter provide any legal basis for the unilateral use of force to prevent human rights abuses. In the absence of a Security Council resolution authorising force under Chapter VII, the Charter envisages the promotion of human rights protection through the monitoring function of various subsidiary organs, such as the Economic and Social Council and the Commission on Human Rights.
The post-Charter state practice and opinio juris reviewed by Dr Chesterman also appear to lack the `consistent and widespread' character required by prevailing theories (40) to establish a new norm of customary international law. Indeed, the three conflicts most commonly cited as clear instances of bona fide humanitarian intervention -- Indian intervention in East Pakistan, Vietnamese intervention in Kampuchea and Tanzanian intervention in Uganda -- are shown to have been justified by the intervening state as cases of self-defence or protection of nationals. (41) The international community's reaction to the Indian and Tanzanian interventions was to affirm their respective rights to self-defence while calling for a cessation of hostilities; in neither case was there approval for a `right' to use force to stop grave human rights abuses. (42)
In the case of Vietnam's invasion of Kampuchea, international reaction (led by the United States and China) was positively hostile. (43) While proposed Security Council resolutions condemning Vietnam failed due to a Soviet veto, numerous states condemned the action as an illegal use of force in violation of the principle of non-intervention. States uniformly rejected the argument that ending the Khmer Rouge's genocide could have justified the invasion (although Vietnam never expressly relied upon this rationale), with the United Kingdom, for example, stating, `[w]hatever may be said about human rights in Kampuchea, it cannot excuse Viet Nam, whose own human rights record is deplorable, for violating the territorial integrity of Democratic Kampuchea.' (44) The General Assembly refused to recognise the representative of the Vietnamese-installed regime, allowing the Khmer Rouge to continue to occupy Kampuchea's seat in the Assembly until 1990. (45)
Genuinely `humanitarian' interventions, then, are difficult to find: where states expressly profess humanitarian intentions, non-humanitarian reasons seem more significant; where interventions actually do terminate genocide or crimes against humanity, they are not justified, or accepted, as evincing a `right' to do so. A cautious analysis of the state practice and opinio juris leads Dr Chesterman to conclude that unilateral `humanitarian intervention' remains an inchoate principle, occasionally tolerated by states without being endorsed. In the cases of Tanzania and India, the international community reacted consistently with the norm of non-intervention, but imposed no countermeasures, which suggests one way of understanding humanitarian intervention is not so much as a `right', but as illegal conduct which is tolerated by the international community in extreme circumstances. (46)
III THE NEW INTERVENTIONISM -- DELEGATION AND `COLLECTIVE UNILATERALISM'?
Perhaps the most interesting and analytically novel dimension of Just War or Just Peace? is its reflection on the changing nature of Security Council practice in relation to intervention since the end of the Cold War. Dr Chesterman considers two separate but related aspects of these developments: the new interpretations of a `threat to international peace and security' that have underpinned Security Council authorisations to use force; and the trend towards `delegation' of enforcement powers to various states or `coalitions of the willing'. Once again, the reader is greatly assisted by a precise and scholarly exposition of the terms of Chapter VII of the Charter, and the interpretive possibilities to which it gives rise.
There has been an extraordinary increase in the enforcement of Security Council authorisations since 1990, with 35 peacekeeping operations and 10 sanctions regimes authorised to the end of 1999. (47) A corollary to this growth in authorisations is the emergence of expansive interpretations of the meaning of a `threat to international peace and security', and what may be authorised in response to such a threat. Dr Chesterman's review of 12 instances in the 1990s where the Security Council determined the existence of a threat to international peace and security illustrates the enlargement of the term to encompass internal armed conflicts, humanitarian crises and `disruptions to democracy'. (48) His careful analysis of the terms of each of the relevant resolutions and conduct by implementing states reveals that there is little consistency or underlying coherence in the Security Council's employment of the term. (49) More troublingly, the increasing plasticity of a `threat to international peace and security' may reflect a manipulability of the Charter framework to coincide with the political will (and, by extension, the foreign policy objectives) of states desiring to intervene in a given situation. An example which suggests this possibility is the Security Council's declaration that Libya's refusal to extradite to the United States or United Kingdom two alleged terrorists was a `threat to international peace and security', (50) even though Libya had concluded no extradition treaty with either requesting state and its demand for international arbitration of the dispute was within the terms of the Montreal Convention. (51)
As Dr Chesterman rightly points out, it is difficult to envisage how things could be otherwise in an `[o]rganization tied to a legal framework still subject to the will of member states.' (52) Nevertheless, he accepts that the very idea of an international rule of law demands the restraint of arbitrary uses of power and should `prevent the exercise of such power being legitimated by dubious legal processes.' (53) The alternative is inconsistency, incoherence and a discrediting of both international law and its instruments.
The spectre of a Security Council which is either co-opted or undermined is also raised by the second trend examined. The expansive interpretation of threats to international peace and security has developed in conjunction with increased delegation of enforcement measures to individual states or coalitions, particularly through the inclusion of the `all necessary measures' form of authorisation. Article 53 of the Charter specifically provides for the Council to utilise regional arrangements or agencies for authorised enforcement actions, but the cases analysed by Dr Chesterman include delegation to any state willing to act, and to specifically nominated states. (54) In the absence of the standing United Nations intervention force envisaged by article 43 of the Charter, reliance on states' willingness to implement enforcement measures is, of course, unavoidable. But Dr Chesterman's review of the factual circumstances and terms of each instance of delegation in the last decade discerns a more problematic dimension: the Security Council has ceased debating enforcement measures in open session, and instead has moved to `granting its formal imprimatur to pre-arranged deals.' (55)
In the process, the Council's supervision of when and how enforcement mandates are carried out, its monitoring of delegated operations, and its ability to determine when such operations should conclude, have all been undermined. (56) This diminished control has resulted in some states bypassing the Security Council altogether, while legitimising their use of force against certain countries on the basis of earlier resolutions determining a threat to international peace and security. One example considered in detail by Dr Chesterman is the decade-long, low-intensity aerial war waged against Iraq by the United States and the United Kingdom. (57) While candidly admitting that the imposition of `no-fly' zones and periodic aerial bombardment were partly intended to achieve the (illegal) foreign policy objective of destabilising the Iraqi government, (58) the United States and United Kingdom maintained that bombardment to enforce aerial exclusion zones and a weapons-inspection regime (59) were authorised by the initial resolution mandating the expulsion of Iraq from Kuwait, and by a later resolution authorising the delivery of humanitarian aid to Iraqi Kurds. (60) As Dr Chesterman convincingly demonstrates, neither of these arguments has any legal merit. Security Council Resolution 678's authorisation to use force ended with the termination of the Iraqi occupation of Kuwait, (61) and the conclusion of the formal cease-fire embodied in Security Council Resolution 687. (62) Security Council Resolution 688 (63) authorised only humanitarian assistance and, unlike the 14 prior Security Council resolutions concerning Iraq, was not made pursuant to Chapter VII. (64)
An interesting speculation at the conclusion of Dr Chesterman's analysis of these two trends in Security Council practice is his suggestion that we may be witnessing the emergence of circumstances reminiscent of an earlier era in the legal regulation of the use of force. (65) The trend towards delegation turns Council authorisation into a formal endorsement of pre-arranged deals among powerful states, and has made regional interventions supported by ambiguous Council authorisations more common. The natural progression of this tendency may well be indicated by NATO's Operation Allied Force in 1999, in which `support of' or `consistency with' Security Council resolutions concerning Kosovo were proffered as sufficient bases to claim the imprimatur of the Charter framework in the absence of any express authorisation. (66) The Security Council's determinations were thus reduced to offering `one policy justification among others' for the recourse to force, which Dr Chesterman analogises to the merely recommendatory powers held by the Council of the League of Nations. (67) A system which relies on alliances of convenience to pursue `recommended' enforcement actions may `come to resemble something slightly older -- notably, the alliances of the nineteenth century under the Concert of Europe.' (68) Where the Security Council does more than `recommend', it may become a `law-laundering service' which provides legitimising mandates for the unilateral use of force or the use of force by a coalition of like-minded states. (69)
IV WHAT IS TO BE DONE?
In their editorial comments on NATO's Operation Allied Force, Louis Henkin and Jonathan Charney both question the desirability of allowing collective security arrangements to be replaced by a `right' to humanitarian intervention. (70) Henkin echoes Pufendorf when he observes that `the law against unilateral intervention may reflect, above all, the moral-political conclusion that no individual state can be trusted with authority to judge and determine wisely [whether force should be used].' (71) Dr Chesterman's conclusions place him among these distinguished counsels of caution:
[U]nilateral enforcement is not a substitute for but the opposite of
collective action: as unilateral assertions of humanitarianism come to
displace multilateral institutional legality, so the normative restraints
on the recourse to force weaken. The resulting fragmentation and
regionalization of the international security system thus makes it reliant,
once again, on the eirenic munificence of file modern Great Power(s). And,
as international law is deprivileged to become just one policy
justification among others, so fade the hopes of mediating those Great
Power relations through an international role of law. (72)
Such caution is an important counterpoint to the, at times, uncritical celebration of `the end of sovereignty' by well-intentioned human rights groups, and less well-intentioned foreign policy `spin' experts. The `growing willingness to transcend sovereignty' and a `new readiness [by] the international community' to deploy troops to address crimes against humanity, celebrated by Human Rights Watch in its World Report 2000, (73) too easily become a triumphal unilateralism by self-appointed `enlightened' states:
This perspective can only be centred on a new unity of purpose among
Western peoples and governments, since only the West has the economic,
political and military resources and the democratic and multinational
institutions and culture necessary to undertake it. The West has a historic
responsibility to take on this global leadership, not because it should
impose itself on the rest of the world, but because so many people in the
rest of the world look to it for support. (74)
Post-colonial states in the developing world -- erstwhile `beneficiaries' of an earlier `historic responsibility' claimed by powerful states (75) -- are understandably apprehensive about any potential new licence for unilateral military action by the West. (76) It may provide some of these states with an excuse to seek security, not through collective frameworks, but by enhancing national military capabilities and developing weapons of mass destruction. In the aftermath of NATO's attack on Yugoslavia, Indian Prime Minister Atal Bihari Vajpayee warned ominously, `Who is safe in this world? ... In this situation, we cannot let our defenses slip. Nuclear weapons are the only way to maintain peace.' (77)
Dr Chesterman's alternative to a `right' to humanitarian intervention -- that humanitarian intervention should be declared illegal, but the international community may justifiably withhold countermeasures in appropriate circumstances -- nevertheless leaves us asking what those circumstances may look like. Richard Falk's observation that maintaining a strict legalism in the face of genocide or comparable crimes is `politically and morally unacceptable' -- and may further marginalise international law (78) -- underscores that any judgment as to the `acceptability' (or `excusability') of a claimed humanitarian intervention requires recourse to ethical and empirical criteria informed by the values and principles underlying the Charter framework. The criteria tentatively suggested by Falk and Chesterman (79) overlap in substance, and require:
1 the existence of severe and immediate human rights abuses, amounting to genocide or crimes against humanity;
2 the exhaustion of peaceful options, pursued in a sincere and convincing manner;
3 an inability to pursue collective action through either the Security Council or General Assembly; and
4 that the use of force is in fact likely to protect the population, is limited to the degree necessary to prevent further violations, and is conducted in a manner consistent with the laws of war. (80)
These criteria provide a useful guide to international lawyers and concerned persons trying to navigate the quagmire of whether an intervention is ethically appropriate in the context of a world order that endeavours to deter and contain the use of force between states. It seems appropriate that a strong burden of persuasion must be discharged to excuse a use of force outside the United Nations' framework, and hence the criteria should be applied stringently and with a critical eye to a purported humanitarian intervention, particularly when a war is being waged in `our' name and government `spin' is unrelenting. Vigilant application of these criteria would demonstrate, I think, that the `double blackmail' that we must `[a]ct or do nothing' (81) is rarely, if ever, defensible. (82) Certainly, it is doubtful whether NATO's Operation Allied Force meets three out of four of these tests, leaving a justifiable concern that the war was both unnecessary and unnecessarily destructive. (83)
Discussing why she went from being a supporter to a critic of NATO's operation, east European human rights advocate Dimitrina Petrovna explained her deep concern that the banner of `human rights' was
becoming indistinguishable from official political ideology ... [producing]
a gradual usurpation of human rights culture by the dominant powers, and
the very argument for the [sic] human-rights is turning into an apologia
for the global status quo, all in the interests of these very powers. (84)
Dr Chesterman's useful book provides legal and analytical tools that, hopefully, will help us differentiate between an excusable illegality, and yet another cynical usurpation of international law in the service of raison d'etat.
(1) Barbara Ehrenreich, Blood Rites: Origins and History of the Passions of War (1997) 20.
(2) Immanuel Kant, Zum Ewigen Frieden (1795), reproduced as `Eternal Peace' in Immanuel Kant, The Philosophy of Kant: Immanuel Kant's Moral and Political Writings (Carl Friedrich trans and ed, 3rd ed, 1993) 475.
(3) Ibid 488-9 (emphasis in original).
(4) Ibid 489 (emphasis in original).
(5) Hugo Grotius, The Freedom of the Seas; Or, the Right Which Belongs to the Dutch to Take Part in the East Indian Trade (first published 1609, R V D Magoffin trans, James Brown Scott ed, 1916 ed) [trans of: Mare Liberum, Sive de Jure Quod Batavis Competit ad Indicana Commercia Dissertio].
(6) Where the Portuguese had insisted on their `ownership' of sea routes to the Indies as a ground to debar Dutch commercial ships, Grotius distinguished between `ownership' and `jurisdiction', denying that the former could subsist where occupation was impossible. On this view, a state cannot exercise rights characteristic of private property -- such as exclusion -- over the sea: ibid 27-8. Grotius' cousins were among the directors of the United East India Company, while his father, as burgomaster of Delft, was responsible for nominating one of the seats on the company's board: Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (1999) 79.
(7) Tuck, above n 6, 103. In the introduction to his work, Tuck notes (at 14) that:
It cannot be a coincidence ... that the modern idea of natural rights arose
in the period in which the European nations were engaged in their dramatic
competition for the domination of the world, and in which there were urgent
questions about how both states and individuals adrift in a stateless world
behave to one another and to newly encountered peoples.
(8) See, eg, Anthony D'Amato, `The Invasion of Panama Was a Lawful Response to Tyranny' (1990) 84 American Journal of International Law 516; Abraham Sofaer, `The Legality of United States Action in Panama' (1991) 29 Columbia Journal of Transnational Law 281. Apart from the obvious difficulties of reconciling a right to unilateral military intervention to `promote democracy' with the UN Charter's prohibition on the use of force, the premise that the Panama invasion was genuinely a `response to tyranny' is grotesquely propagandist. On the background to the United States' financial and political support for General Manuel Noriega from 1967 (including efforts which enabled him to fraudulently claim victory in the 1984 general elections), see Peter Scott and Jonathan Marshall, Cocaine Politics: Drugs, Armies, and the CIA in Central America (2nd ed, 1998) 65-73. On Noriega's fall from favour, and the overriding importance of the 1 January 1990 deadline for the commencement of negotiations regarding the reversion of the Panama Canal, see James Dunkerley, The Pacification of Central America (1994) 31-6. The new government installed by the United States after the invasion proved no more `democratic' than that of Noriega: see Noam Chomsky, Deterring Democracy (1992) 163-72.
(9) See Jules Lobel and Michael Ratner, `Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime' (1999) 93 American Journal of International Law 124. In 1999 alone, the United States and United Kingdom flew 15 000 sorties over Iraq to enforce the no-fly zones, hitting hundreds of targets: Jason Burke, `Iraq Sanctions Fuel the Politics of Hate', The Guardian Weekly (Manchester, UK), 23-9 December 1999, 3. The `provocation' for bombing was claimed to be anti-aircraft fire, although officials acknowledged that the artillery fire was so far away that it posed no threat to allied aircraft: see Dana Priest, `US Planes Intensify Iraq Strikes: Air Defense System is Primary Target', The Washington Post (Washington, USA), 2 March 1999, A1.
(10) Michael Glennon, `The New Interventionism: The Search for a Just International Law' (1999) 78(3) Foreign Affairs 2.
(11) Ibid 7.
(12) Ibid.
(13) Ibid.
(14) See, eg, Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (1999).
(15) Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (2001) chs 1-2.
(16) Ibid 10.
(17) It is not without some irony that Grotius' portrait occupies pride of place in the `Peace Palace' in The Hague.
(18) Alberico Gentili, De Iure Belli Libri Tres (first published 1598, John Rolfe trans, Coleman Phillipson ed, 1933 ed) vol 2, 123-4 [trans: Three Books on the Law of War], cited in Tuck, above n 6, 34-5.
(19) Gentili, above n 18, vol 2, 123-4, cited in Tuck, above n 6, 34-5. The other conclusion drawn from the notion of a league of human society was that `vacant land' or land not cultivated could be taken by those who needed it: at 48-9. Thomas More's Utopia, a work in the humanist tradition, embraces the justness of appropriating `idle' lands from those whose violations of the law of nature render them undeserving of it. `The Utopians say it's perfectly justifiable to make war on people who leave their land idle and waste yet forbid the use and possession of it to others who, by the law of nature, ought to be supported from it': Thomas More, Utopia (first published 1516, G M Logan and R A Adams eds, 1989 ed) 56.
(20) More, above n 19, 87-8.
(21) See Tuck, above n 6, ch 2.
(22) Samuel Pufendorf, The Law of Nature and Nations (first published 1672, Basil Kennet trans, 5th ed, 1749) bk 8, 847 [trans of: De Jure Naturae et Gentium], cited in Tuck, above n 6, 160-1 (emphasis in original). Pufendorf did accept a right to `assist' persons who had taken up arms against their government if they were suffering `insupportable Tyrannies and Cruelties', provided the rebellious subjects requested help.
(23) The common assertion that the modern regime of state sovereignty was inaugurated with the Treaty of Westphalia seems historically inaccurate. It results, perhaps, from 18th and 19th century jurists' retrospective interpretation of the Treaty of Westphalia through the prism of a teleological historical consciousness of the nation-state: see Andreas Osiander, `Sovereignty, International Relations, and the Westphalian Myth' (2001) 55 International Organization 251.
(24) Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (first published 1749, Joseph Drake and Francis Hemelt trans, Otfried Nippold ed, 1934 ed) vol 2, 514 [trans: The Law of Nations Treated According to a Scientific Method], cited in Tuck, above n 6, 189-90.
(25) Emer de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (first published 1758, Charles Fenwick trans, James Brown Scott ed, 1916 ed) vol 3, 19 [trans of: Le droit des gens ou principes de la loi naturelle appliques a la conduite et aux affaires des nations et des souverains], cited in Chesterman, above n 15, 18.
(26) Chesterman, above n 15, 33.
(27) Ibid 34.
(28) The United States' intervention effectively prevented Cuban independence by instituting a new set of masters to replace the retreating Spanish. As one scholar concludes, the Spanish-American War of 1898:
[D]id register an American form of imperialism, for American power (in its
broadest sense) was projected abroad and imposed over unwilling subjects;
and in taking American power overseas so forcefully and dramatically, the
war represented both the continuity of American territorial expansion and
its discontinuous passage into the Carribbean and western Pacific.
Michael Dunne, `US Foreign Relations in the Twentieth Century: From World Power to Global Hegemony' (2000) 76 International Affairs 25, 27 (emphasis in original).
(29) Chesterman, above n 15, 42-4.
(30) See UN Charter art 51.
(31) Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4.
(32) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14.
(33) [1949] ICJ Rep 4, 35.
(34) [1986] ICJ Rep 14, 100. Article 103 of the UN Charter provides that Charter obligations prevail over all other treaty obligations of the state party, and Simma refers to the Charter as `an instrument of singular legal weight, something akin to a "constitution" of the international community': Bruno Simma, `NATO, the UN and the Use of Force: Legal Aspects' (1999) 10 European Journal of International Law 1, 18.
(35) [1986] ICJ Rep 14, 134-5.
(36) One of the more vulgar expositions of this position is found in Julie Mertus, `Legitimizing the Use of Force in Kosovo' (2001) 15 Ethics and International Affairs 133, 140 (emphasis added, citations omitted):
In either case, intervention that promotes central principles of the UN
Charter is permissible. The central purposes of the UN, as set forth in
Article 1, include developing `respect for the principle of equal rights
and self-determination of peoples' and `encouraging respect for human
rights and for fundamental freedoms without distinction as to race, sex,
language or religion.' Humanitarian intervention thus promotes the most
central aim of the organization, the maintenance of international peace and
security -- which must mean more than merely the absence of an
internationally recognized war. Human rights violations short of all-out
war also constitute major breaches of peace and security, and Articles 55
and 56 of the UN Charter implore `all Members [to] pledge themselves to
take joint action in cooperation with the Organization for the achievement
of ... universal respect for, and observance of, human rights and
fundamental freedoms for all.' The UN Charter not only permits intervention
on humanitarian grounds, but in cases of gross and systemic human rights
abuses against civilians who are members of minority groups, it requires
it.
Apart from ignoring that `peaceful settlement of disputes' is among the primary purposes of the United Nations set out in art 1, the passage quoted also overlooks that the references to human rights promotion in arts 55 and 56 fall within a chapter entitled `International Economic and Social Co-operation' and have nothing whatsoever to do with the use of force. Moreover, arts 55 and 56 mandate international co-operation with the UN to achieve the specified aims, which is inconsistent with a unilateral right of intervention.
(37) Chesterman, above n 15, 51.
(38) Ibid, citing Oscar Schacter, `The Legality of Pro-Democratic Invasion' (1984) 78 American Journal of International Law 645, 649.
(39) Statement of the United States delegate reported in Summary Report of Eleventh Meeting of Committee I/1, Doc 784, I/1/27, 6 UNCIO Docs 5 (1945), reproduced in United Nations Information Organizations, Documents of the United Nations Conference on International Organization: San Francisco, 1945 (1945) vol 6, 335, cited in Chesterman, above n 15, 49.
(40) See Nicaragua [1986] ICJ Rep 14, 98.
(41) Chesterman, above n 15, 71-5, 77-81.
(42) Ibid 74-5, 78-9.
(43) It is noteworthy that Vietnam's claim of self-defence was plausible. After a long-running border dispute, and an increase in troop presence on both sides, the Khmer Rouge regime launched a series of armed attacks on the Vietnamese side of the border, which destroyed 25 townships and 96 villages, and left 257 000 Vietnamese homeless: Grant Evans and Kelvin Rowley, Red Brotherhood at War: Vietnam, Cambodia and Laos since 1975 (1984) ch 4.
(44) UN SCOR, 24th sess, 2110th mtg, 6, UN Doc S/PV.2110 (1979), cited in Chesterman, above n 15, 80, fn 249.
(45) After the Vietnamese invasion, the United States began a program of covert assistance to the exiled Khmer Rouge army, including financial, humanitarian and diplomatic support. As one reporter observed, the United States was `fighting Vietnam to the last Cambodian': Peter Goodmall, `US Represses Its Cambodia Memories', The Guardian Weekly (Manchester, UK), 24 January 1999, 19. See also William Schulz and Chester Atkins, `Diluting Human Rights', The Boston Globe (Boston, USA), 12 January 1999, A15; John Pilger, `Pol Pot: The Monster We Created', The Guardian Weekly (Manchester, UK), 26 April 1998, 1.
(46) Chesterman, above n 15, 231-2.
(47) Ibid 122.
(48) Ibid 127-62.
(49) Ibid 160-2.
(50) SC Res 748, UN SCOR, 47th sess, 3063rd mtg, UN Doc S/Res/748 (1992). The Security Council imposed sanctions on Libya.
(51) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973). The United States, the United Kingdom and Libya are all parties to the Montreal Convention. On the arbitration provisions of the Montreal Convention, see Questions of Interpretation and Application of the Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v UK) (Preliminary Objections) [1998] ICJ Rep 9.
(52) Chesterman, above n 15, 162.
(53) Ibid 161.
(54) Ibid 174-7.
(55) Ibid 179. On the secrecy of the backroom dealing in the Security Council, and the way in which vital information concerning Rwanda was kept from non-permanent members to forestall action, see Linda Melvern, `The Security Council: Behind the Scenes' (2001) 77 International Affairs 101.
(56) Chesterman, above n 15, 185. A tragic example of the Security Council's complete loss of operational control during a ch VII mission was the United States' determination to pursue clan leader Mohamed Farah Aidid (a situation which in itself was the product of ignorance, confused diplomacy and indeterminate mission objectives), leading it to launch an intensive armed assault in Mogadishu, and secretly introduce a commando strike force. In the course of the hostilities, United States' forces bombed a hospital and a United Nations compound, and killed between 500 and 1000 Somali civilians; casualty estimates range from 6000 to 10 000 Somali civilians. Despised by Somalis in Mogadishu, the United Nations mission collapsed. Other peacekeeping forces, such as the Belgians, Canadians and Italians, also committed gross human rights abuses against Somali civilians, including torture, rape and murder. See generally Alex de Waal, `US War Crimes in Somalia' (1998) 230 New Left Review 131; Scott Peterson, Me against My Brother: At War in Somalia, Sudan and Rwanda -- A Journalist Reports from the Battlefields of Africa (2000) chs 4-5, particularly at 88 for civilian casualty figures.
The dangers of allowing one state to control a mission, and thus set its own rules of engagement and military objectives, are illustrated by a troubling statement attributed to then-President William J Clinton by his former adviser, George Stephanopoulos:
`We're not inflicting pain on these fuckers [Aideed's faction],' Clinton
said, softly at first. `When people kill us, they should be killed in
greater numbers.' Then, his face reddening, his voice rising, and his fist
pounding his thigh, he leaned into Tony [Lake], as if it was his fault. `I
believe in killing people who try to hurt you ... And I can't believe we
are being pushed around by these two-bit pricks.'
George Stephanopoulos, All Too Human (1999) 214.
As journalist Scott Peterson (at xvii) observes, `the disastrous US policy in Somalia ... led directly to another disastrous, shameful US policy of genocide denial in Rwanda.'
(57) Chesterman, above n 15, 196-206.
(58) Sean Murphy, `Contemporary Practice of the United States Relating to International Law' (1999) 93 American Journal of International Law 470, 478-9; Dana Priest and Howard Schneider, `Over Iraq, US Fights a Quiet War', The Washington Post (Washington, USA), 7 March 1999, A1.
(59) The legitimacy of the United Nations Special Commission (UNSCOM), established to monitor Iraq's disarmament after the Gulf War, was severely eroded by revelations that it had been used by the United States and United Kingdom as a means of gathering military and political intelligence on Iraq: Thomas Lippman and Barton Gellman, `UN "Helped US to Spy on Saddam"', The Guardian Weekly (Manchester, UK), 17 January 1999, 17; Barton Gellman, `US Spied on Iraqi Military via UN', The Washington Post (Washington, USA), 2 March 1999, A1.
(60) Murphy, above n 58, 473-5. The cruel irony of claiming that the no-fly zones are intended to `protect Iraqi Kurds' would not be lost on the Kurds themselves, who have been subject to a brutal counterinsurgency campaign by Turkish troops crossing the border into Iraq. In the 1990s, United States' weapons supplies to Turkey reached unprecedented levels, even as serious human rights abuses committed against the Kurds by the Turkish military were documented by international human rights groups: see, eg, Human Rights Watch, The Kurds of Turkey: Killings, Disappearances and Torture (1993); Human Rights Watch, Weapons Transfers and Violations of the Laws of War in Turkey (1995); Human Rights Watch, Forced Displacement of Ethnic Kurds from Southeastern Turkey (1994); Tamar Gabelnick, William Hartung and Jennifer Washburn, Arming Repression: US Arms Sales to Turkey during the Clinton Administration (1999) Federation of American Scientists
(61) SC Res 678, UN SCOR, 45th sess, 2963rd mtg, [2], UN Doc S/Res/678 (1990).
(62) SC Res 687, UN SCOR, 46th sess, 2981st mtg, UN Doc S/Res/687 (1991). See Chesterman, above n 15, 201-3. See also Lobel and Ratner, above n 9.
(63) SC Res 688, UN SCOR, 46th sess, 2982nd mtg, UN Doc S/Res/688 (1991).
(64) Chesterman, above n 15, 200-1.
(65) Ibid 218.
(66) Ibid.
(67) Ibid.
(68) Ibid.
(69) Ibid 232-3. Chesterman draws the term `law-laundering service' from Richard Falk, `The United Nations and the Rule of Law' (1994) 4 Transnational Law and Contemporary Problems 611, 628.
(70) Louis Henkin, `Kosovo and the Law of "Humanitarian Intervention"' (1999) 93 American Journal of International Law 824; Jonathan Charney, `Anticipatory Humanitarian Intervention in Kosovo' (1999) 93 American Journal of International Law 834.
(71) Henkin, above n 70, 825.
(72) Chesterman, above n 15, 236 (emphasis omitted).
(73) Human Rights Watch, World Report 2000 (2000) xiii-xiv. To assert that the `end of sovereignty' improves the prospects for human rights law enforcement is to mistakenly assume that it is `sovereignty' which has deterred necessary interventions in the past. This assumption is demonstrably false. It was not concern over state sovereignty that impeded intervention to prevent genocide in Rwanda, but rather concern over state self-interest, and this is likely to persist whatever the fortunes of the concept of `sovereignty'. On states' calculations as to their national interests when contemplating intervention in Rwanda, see Linda Melvern, A People Betrayed: The Role of the West in Rwanda's Genocide (2000).
(74) Martin Shaw, Global Society and International Relations (1994) 180-1.
(75) The parallels between the `white man's burden' which justified colonialism, and the `global burden' rhetoric of the new interventionism are troubling. It is also worth recalling that the scramble for Africa was spurred in part by pressure from Christian missionaries to suppress the slave trade.
(76) See the press reports discussed in Stanley Kober, `Setting Dangerous International Precedents' in Ted Carpenter (ed), NATO's Empty Victory: A Postmortem on the Balkan War (2000) 107, 114. NATO's nebulously expansive revised strategic concept, which includes `[e]thnic and religious rivalries, territorial disputes .... failed efforts at reform, the abuse of human rights and the dissolution of states' in non-NATO areas as potential threats to NATO's security, would do little to ease this concern about a global military reach: see John Borawski and Thomas-Durrell Young, NATO after 2000: The Future of the Euro-Atlantic Alliance (2001) 48. Nor, for that matter, would statements by high-level United States officials that the strategic concept `does not suggest that NATO must have permission from the United Nations or any other outside body before it can act' (Walter Slocombe, then Under Secretary of Defense for Policy) or that `[w]e should avoid language in the Concept which would require NATO to have a UN or other mandate' (William Cohen, then Secretary of Defense): see at 49.
(77) Cited in Kober, above n 76, 115.
(78) Richard Falk, `Kosovo, World Order, and the Future of International Law' (1999) 93 American Journal of International Law 847, 852-3.
(79) Ibid 856; Chesterman, above n 15, 228-9.
(80) Chesterman, above n 15, 229 also notes that some writers demand that the humanitarian motives of the intervener be `paramount'. In principle, it is difficult to see why this should necessarily be the case, as an intervention motivated by other reasons may still terminate international crimes (eg, Vietnam's intervention in Kampuchea and India's intervention in East Pakistan). Nevertheless, if the intervening state has the welfare of the other state's population as a paramount concern, it seems more likely to satisfy criteria 2 and 4.
(81) These words were uttered by British Prime Minister Tony Blair as the basis for Operation Allied Force: Rachel Sylvester, `The Blair Doctrine: This Is an Ethical Fight', Independent (London, UK), 28 March 1999, 18, cited in Chesterman, above n 15, 220.
(82) Indeed, the perils of `doing something' were illustrated in Somalia, where military intervention in a humanitarian crisis neither averted disaster nor resolved the underlying conflict: Alex de Waal and Rakiya Omaar, `Can Military Intervention Be "Humanitarian"?' (1994) 24(2)-(3) Middle East Report 3. As de Waal and Omaar comment, `[r]elief agencies must realize that military intervention does not make the job of fighting famine any easier; it merely makes it different': at 7. Mohamed Sahnoun, former Special Representative of the UN Secretary-General for Somalia, states: `I was in Somalia at the time. We did not need troops. The worst came when we began to send troops': Joe Stork, `It's Difficult to Point to a Situation Where Armed Intervention Represented a Solution' (1994) 24(2)-(3) Middle East Report 28, 30.
(83) On whether the pre-bombing human fights abuses of Yugoslav forces could be termed genocide or something comparable, see Independent International Commission on Kosovo, The Kosovo Report (2000) 136 (comparing the abuses with `numerous other recent counterinsurgency wars, for example Colombia or Turkey'); Simma, above n 34, 2. On whether the Rambouillet negotiations amounted to `sincere and genuine' exhaustion of opportunities for peaceful resolution, see Independent International Commission on Kosovo, ch 2; Michael MccGwire, `Why Did We Bomb Belgrade?' (2000) 76 International Affairs 1, 7-17; Christopher Layne, `Miscalculations and Blunders Lead to War' in Ted Carpenter (ed), NATO's Empty Victory: A Postmortem on the Balkan War (2000) 11; James Jatras, `NATO's Myths and Bogus Justifications for Intervention' in Ted Carpenter (ed), NATO's Empty Victory: A Postmortem on the Balkan War (2000) 21. On whether the mass expulsion of the Kosovar Albanians `would have happened anyway', see Tim Judah, Kosovo: War and Revenge (2000) 241; Independent International Commission on Kosovo, 88-9; Noam Chomsky, A New Generation Draws the Line: Kosovo, East Timor and the Standards of the West (2000) 33. On NATO's deliberate targeting of civilian infrastructure to `demoralise' the civilian population, see Australian Broadcasting Corporation, `The Humanitarian War', Four Corners, 11 October 1999
(84) Cited in Robert Hayden, UN War Crimes Tribunal Delivers a Travesty of Justice, Woodrow Wilson International Center for Scholars
NEHAL BHUTA, BA, LLB (Hons) (Melb); Articled Clerk, Mallesons Stephen Jaques, Melbourne.
Bhuta, Nehal
Source Citation (MLA 8th Edition)
Bhuta, Nehal. "Just War or Just Peace? Humanitarian Intervention and International Law." Melbourne University Law Review, Dec. 2001, p. 843+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA84371000&it=r&asid=1a9de92492b8120decaa3d062d7e4450. Accessed 11 June 2017.
Gale Document Number: GALE|A84371000
Making states work; state failure and the crisis of governance
20.3 (Aug. 2005): p164.
Copyright: COPYRIGHT 2005 Ringgold, Inc.
http://www.ringgold.com/
JC330
2004-025266
92-808-1107-X
Making states work; state failure and the crisis of governance.
Title main entry. Ed. by Simon Chesterman et al.
United Nations University Pr., [c]2005
400 p.
$45.00 (pa)
The point of departure for this collection of articles is the idea that there is a link between international peace and "strong states respectful of human rights and robust civil societies." Presented by Chesterman (New York U. School of Law, US), Ignatieff (Harvard U.'s John F. Kennedy School of Government, US), and Thakur (United Nations University, Japan), 17 contributions provide theoretical context, examine policy issues, and explore case studies of efforts aimed at preventing state failure. The use of human rights to justify regime change, the legacy of anti-colonial struggles, the regional contexts and dynamics of states with weak institutions, policy options facing international actors, and "transitional justice options" are some of the major issues discussed. Case study countries include Colombia, North Korea, Afghanistan, Mozambique, Costa Rica, and Singapore.
Source Citation (MLA 8th Edition)
"Making states work; state failure and the crisis of governance." Reference & Research Book News, Aug. 2005, p. 164. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA135655621&it=r&asid=e471ba972fe8d6272aaebb90e32ca59f. Accessed 11 June 2017.
Gale Document Number: GALE|A135655621
QUOTE:
fine, timely, and usable study
analyzes why so many efforts founder, and why the United Nations and countries that contribute troops to these efforts are often unwilling to invest sufficient resources.
As Chesterman shows, fledgling democracies can quickly devolve into autocracy or civil war. A successful transition from autocracy to democratic self-rule takes years, not months.
You, the People: The United Nations, Transitional Administration, and State-Building
Hadley Ross
29.2 (Spring 2005): p116.
Copyright: COPYRIGHT 2005 Woodrow Wilson International Center for Scholars
http://www.wilsonquarterly.com/page.cfm/About_Wilson_Quarterly
YOU, THE PEOPLE: The United Nations, Transitional Administration, and State-Building. By Simon Chesterman. Oxford Univ. Press. 296 pp. $95
In this fine, timely, and usable study, Simon Chesterman analyzes the complicated process of transferring power from an international authority that has governed a country temporarily to a viable local regime. Before shifting power, the outside authority must build sustainable institutions and train local people for government jobs, while also laying the groundwork for democracy by building trust in government institutions and encouraging people to take part in the democratic process. But the preparations for democracy are hampered by the fact that the transitional administration itself is anything but democratic: Notwithstanding the good intentions of its creators, it's essentially a military occupation. The contrast between pragmatic means and idealistic ends is stark. As Chesterman, a senior associate at the New York-based International Peace Academy, asks at the beginning of his book, "Is it possible to establish the conditions for legitimate and sustainable national governance through a period of benevolent foreign autocracy?"
His answer is a tentative yes, but only if certain conditions are met. In chapters on the recent experiences in Kosovo, East Timor, Afghanistan, and elsewhere, Chesterman describes how transitional administrations have maintained law and order, provided humanitarian and development assistance, consulted with local populations, established the rule of law, and administered elections, all with varying degrees of efficacy. The factors that make a transitional administration more likely to succeed come as no surprise: a realistic plan tailored to the specific situation, the commitment of troops from a powerful nation or coalition, coordination between military operations and efforts to build a new government, ample time, and plenty of money.
But Chesterman also analyzes why so many efforts founder, and why the United Nations and countries that contribute troops to these efforts are often unwilling to invest sufficient resources. The UN has only recently begun to oversee transitional administrations, and it does so on a strictly ad hoe basis, without a permanent office for managing such missions. Its reluctance is unfortunate, but many within the UN believe that traditional peacekeeping is the only type of military operation appropriate for the organization, and they fear, justifiably, that if the UN were better prepared for state-building missions, it would be called upon to undertake them more often.
In Iraq, the failure of the United States to plan effectively led to a breakdown of law and order, which in turn provoked resentment and resistance from the population and required far more time, troops, and money than expected. The January elections may have seemed like a magic bullet, a chance to give the people their democracy and then get out of the way. But without peace and security, sustainable institutions, and economic stability, democracy won't necessarily take hold. As Chesterman shows, fledgling democracies can quickly devolve into autocracy or civil war. A successful transition from autocracy to democratic self-rule takes years, not months.
Ross, Hadley
Source Citation (MLA 8th Edition)
Ross, Hadley. "You, the People: The United Nations, Transitional Administration, and State-Building." The Wilson Quarterly, vol. 29, no. 2, 2005, p. 116. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA133108663&it=r&asid=cdb0a3fc165b1a8c5d211838bd92c0d6. Accessed 11 June 2017.
Gale Document Number: GALE|A133108663
QUOTE:
commendable, though initial, effort to study monitoring in ASEAN.
On balance, it is still unclear how effective ASEAN can be in developing monitoring mechanisms for itself. A systematic study of monitoring in ASEAN will be a useful means to assess progress in the movement in ASEAN towards compliance. Despite the paucity of public information, this book shows how it can be done.
From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN
Termsak Chalermpalanupap
33.2 (Aug. 2016): p267.
DOI: http://dx.doi.org/10.1355/ae33-2n
Copyright: COPYRIGHT 2016 Institute of Southeast Asian Studies (ISEAS)
http://bookshop.iseas.edu.sg/
From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN. By Simon Chesterman. Cambridge: Cambridge University Press, 2015. Pp. 198.
The book is a commendable, though initial, effort to study monitoring in ASEAN. During the first four decades of ASEAN's inception, monitoring had not been taken seriously by the governments of member countries. Its importance only gained traction recently, when the level of regional cooperation was raised to systematic community-building.
During the research process, the author and his research assistants found a dearth of information on the topic--which is to be expected. The information provided in the book is slightly outdated since this study was done in 2012. ASEAN has since moved on, going beyond the official "establishment" of the ASEAN Community in 2015 to crafting a new ASEAN Community Vision 2025 Roadmap. Nevertheless, the book provides an interesting conceptual framework to study monitoring in ASEAN (Chapter 2). Researchers interested in this topic can adopt the author's approach while conducting additional studies on monitoring, reporting, and compliance in the post-2015 ASEAN Community.
Although conceptually interesting, Chesterman's understanding of the "ASEAN Way" (pp. 8 and 94) is rather limited. The "ASEAN Way" is more than policy-making through consultation and consensus. It includes: the preference of a low level of institutionalization (no ASEAN Secretariat during the first ten years of ASEAN; no new entities outside of the ASEAN Secretariat except for the ASEAN Regional Forum; the ASEAN Plus Three or the East Asia Summit); quiet diplomacy; emphasis on the positive (including no naming or shaming of any member government in public); more flexibility for newcomers (Cambodia, Laos, Myanmar, and Vietnam); and equal contribution to the annual budget of the ASEAN Secretariat. All these finer details of the "ASEAN Way" have influenced how monitoring in ASEAN has developed, or, in some cases, failed to ensure compliance.
Since adopting the ASEAN Charter in 2007, two substantive components remains non-operational: the legal personality of ASEAN in Article 3; and the Dispute Settlement Mechanisms (DSMs) in Article 23 (good offices, conciliation, and mediation) and in Article 25 (arbitration). The long and continuing delays for certain countries to ratify their domestic laws have raised serious doubts among observers on the willingness of governments to make ASEAN more rule-based --let alone to accept more compliance. In this connection, the three questions presented on assessing a monitoring mechanism (p. 62) are extremely relevant.
The book correctly takes note of the growing acceptance of monitoring in the ASEAN Economic Community (AEC). This change is welcomed and arises from the need to give confidence to the international business community, as ASEAN still heavily depends on trade and foreign direct investment to drive growth. However, the book could have delve further into the issue by examining the reasons for the delay for the twenty AEC agreements awaiting full ratification.
Despite efforts to improve monitoring in ASEAN, there is no effective peer pressure for slow-moving member governments to comply with this crucial obligation under the Charter's provision. As a matter of fact, Article 5 Paragraph 2 of the ASEAN Charter states that "Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership". Another example of an enacted regulation experiencing a lack of usage is the 2004 ASEAN Protocol on an Enhanced Dispute Settlement Mechanism. Although it has been in force for nearly twelve years, no legal case has been raised thus far. This reflects another trait of the "ASEAN Way": avoidance of cumbersome litigation and preference for political consultations to settle an economic dispute quietly.
ASEAN Finance Ministers made a decision in 2011 to set up the ASEAN+3 Marcoeconomic Research Office (AMRO) in Singapore (p. 31), on the ground that the ASEAN Secretariat lacked the human and financial capacities to undertake the highly technical job. That was and still is the case. Alternatively, the ASEAN Secretariat could have considered strengthening internal resources to increase its technical capability.
With the establishment of the ASEAN Community in 2015, member governments came to the realization that in order to build a more credible post-2015 Community, they must ratify all the signed agreements without unreasonable delays; and more importantly, implement them in good faith for the common interest of ASEAN.
ASEAN governments have called on the ASEAN Secretariat to spearhead a new and more "robust reporting" system in light of the more ambitious community-building goals in the 2025 Roadmap. The ASEAN Political-Security Committee (APSC) Department and the ASEAN Socio-Cultural Community (ASCC) Department in the ASEAN Secretariat will each set up a new monitoring and analysis division. In the AEC Department, the ASEAN Integration Monitoring Office (p. 30) serves this function.
In spite of the strengthening of the ASEAN Secretariat, there remains among ASEAN member governments a shared common belief not to allow the ASEAN Secretariat or its Secretary-General to have supranational powers. The 2011 Rules of Procedure for the Conclusion of International Agreements by ASEAN makes clear that the Secretary-General of ASEAN needs authorisation before he or she can sign an external agreement that will bind all member governments in ASEAN.
In Chapter 3 of the book, it proposes other entities to conduct monitoring in ASEAN besides the Secretariat, which includes other international organizations (pp. 86-87). In fact, the Economic Research Institute for ASEAN and East Asia (ERIA) has been monitoring the AEC and disseminating information on its informal AEC scorecard. Whether such monitoring by an external party is appropriate remains debatable.
On balance, it is still unclear how effective ASEAN can be in developing monitoring mechanisms for itself. A systematic study of monitoring in ASEAN will be a useful means to assess progress in the movement in ASEAN towards compliance.
Despite the paucity of public information, this book shows how it can be done. To gather more up-to-date information, researchers will have to figure out on their own how to penetrate the wall of opacity in ASEAN.
DOI: 10.1355/ae33-2n
TERMSAK CHALERMPALANUPAP
ISEAS--Yusof Ishak Institute, 30 Heng Mui Keng Terrace, Singapore 119614
email: termsak@iseas.edu.sg
Source Citation (MLA 8th Edition)
Chalermpalanupap, Termsak. "From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN." Journal of Southeast Asian Economies, vol. 33, no. 2, 2016, p. 267+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA463953521&it=r&asid=d94b5a1631794d8e8e55c4dfdc8ebbdf. Accessed 11 June 2017.
Gale Document Number: GALE|A463953521
QUOTE:
comprehensive treatment of the legal issues and presents the case against the existence of a right of humanitarian intervention.
For Chesterman, then, the very notion of humanitarian intervention is inconsistent as a principle. Moreover, acknowledging and codifying a new right of humanitarian intervention would have two negative consequences.
In the end, despite Chesterman's compelling argument, one is left wondering whether legal objections to humanitarian intervention get us very far.
From right to responsibility: Humanitarian Intervention and International Society. (Review Essay)
Jennifer M. Welsh
8.4 (October-December 2002): p503.
Copyright: COPYRIGHT 2002 Lynne Rienner Publishers
http://www.rienner.com
Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), 295 pp.
Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), 336 pp.
The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001), 91 pp.; and The Responsibility to Protect: Research, Bibliography and Background, Supplementary volume to Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001), 410 pp.
Humanitarian intervention has been the subject of much recent controversy--not only within the academic community but also within international organizations, nation-states, and nongovernmental organizations (NGOs). At the heart of the debate is the tension between the principle of state sovereignty (a defining pillar of the UN system and international law) and emerging international norms related to the use of force for humanitarian purposes. The three works reviewed here are vitally important markers in the development of literature on humanitarian intervention. The first, Just War or Just Peace? by Simon Chesterman, provides a comprehensive treatment of the legal issues and presents the case against the existence of a right of humanitarian intervention. Saving Strangers, by Nicholas J. Wheeler, offers a different reading of state practice--and more importantly, the justifications that states provide for their actions--to argue that new norms legitimating humanitarian intervention have developed since the e nd of the Cold War. The final piece, Report of the International Commission on Intervention and State Sovereignty (ICISS), is the product of a broad-based international dialogue designed to reconcile two building blocks of today's international society: nonintervention and respect for the rights of individuals. Its holistic framework offers guidelines not only for responding to massive violations of human rights, but also for preventing such tragedies and for rebuilding conflict-ridden societies.
I begin this essay by reviewing the legal questions surrounding humanitarian intervention and then broaden the discussion to include ethical dilemmas. In the third section, I analyze the attempts by Wheeler and the ICISS to offer scholars and policymakers a solution to the apparent stalemate between those who jealously guard sovereignty and those who seek to enforce human rights standards. Finally, I identify the challenges in designing criteria for a legitimate humanitarian intervention and conclude by discussing how the debate has been affected by the events of September 11.
The Controversy over "Right"
The backdrop for Just War or Just Peace? is the 1999 North Atlantic Treaty Organization (NATO) bombing of Kosovo and the heated legal debate that it generated. (1) As Chesterman notes, on the face of it the legal position seems clear: existing treaty law on the use of force does not permit military intervention for humanitarian purposes. The basic presumption of international law post-1945, according to Article 2 (4) of the UN Charter, is that the use of force is illegal. The accepted qualifications to this rule are claims made in the name of self-defense (Article 51) or collective security (in which case the Security Council may authorize the use of force if it does so explicitly through a resolution adopted under Chapter VII). Yet lawyers commenting on the air campaign in Kosovo arrived at opposing positions, both on the status of the law as it stood at the outset of NATO's action and on the question of whether a new exception to the prohibition on the use of force had emerged.
Those arguing in favor of a right of humanitarian intervention frequently assert that it predates the charter. Chesterman's first task is to determine whether they are right. His historical overview of legal writings and state practice reveals that the notion of humanitarian intervention emerged only in the nineteenth century and that it was not established as any coherent legal right. Most lawyers placed the question outside the realm of law altogether, describing it as a matter of politics, policy, or morality. At best, Chesterman argues, humanitarian intervention "existed as a lacuna in a period in which international law did not prohibit recourse to war" (p. 3). The cases alleged to be humanitarian interventions--efforts by European states to protect Christians in the Ottoman Empire, or U.S. and British intervention during the Boxer Rebellion in China--"can be dismissed as opportunistic or optimistic interpretations of the doctrine" (p. 26).
In the course of reviewing the pre-1945 evidence, Chesterman makes an important observation. The origins of humanitarian intervention are located in the tension between the belief in the justice of a war waged against an immoral enemy, first forwarded by jurist Hugo Grotius, and the emerging principle of nonintervention as a component of sovereignty. As Chesterman shows, this is not simply a precursor to the contemporary tension between two sets of legal rules (those related to human rights and those related to state sovereignty). Rather, the heritage of humanitarian intervention "lies in the earlier conflict between the moral impetus to war over religious differences and the legal restraints that came to be placed on states entering into a society of equals" (p. 7). In other words, it is an issue that puts international law in an uneasy relationship with international morality.
The emergence of the modern doctrine of nonintervention was closely connected to the rise of positivism in international law, through the writings of Emmerich de Vattel and Christian Wolff. By the early twentieth century, Chesterman argues, the Vattelians had won out over the Grotians. Intervention was sanctioned only in situations of civil war where clear lines could be drawn between rulers and their people; it could not be justified as a defense of the rights of the oppressed in other jurisdictions against their sovereign. Furthermore, the League of Nations Covenant and the Kellogg-Briand Pact strengthened the international community's commitment to redressing conflict through peaceful means.
Chesterman's second objective is to tackle three contemporary arguments in favor of a right of humanitarian intervention. First, some legal scholars have suggested that there is a loophole in UN Article 2(4) that would support the use of force for humanitarian purposes. (2) There are two variations here. According to the first, humanitarian intervention would not contravene the charter if it did not violate the "territorial integrity or political independence" of the target state (narrowly defined). According to the second, humanitarian intervention would not be contrary to the purposes of the UN Charter if we consider the objectives related to human rights and freedom listed in Article 1(3). (3) Chesterman's "restrictionist" (4) response to both arguments is convincing: intervention for the purposes of humanitarianism or democracy building does not pass the hurdle of a legitimate exception to the ban on the use of force. This interpretation is strengthened by considering the UN Charter's purpose: to delegiti mize individual acts of war by vesting sole authority for the nondefensive use of force in the Security Council. (5)
Next, Chesterman takes on contemporary international lawyers such as Fernando Teson and Christopher Greenwood, (6) who suggest that there is emerging customary law on humanitarian intervention running parallel to the charter. These "counter-restrictionist" lawyers point to a series of cases from the 1990s, (7) largely carried out by Western governments, as state practice supportive of a new customary rule. The problem with such an approach, as Chesterman demonstrates, is that it privileges custom over treaty--a controversial move from the perspective of the Vienna Convention. (8) In addition, non-Western legal opinion opposes this interpretation of the customary law on intervention, since it seems to suggest that certain types of practice "count" more than others--that is, the actions of Western states versus the stated opposition from those such as China, Russia, and India. In Chesterman's reading, the alleged cases of humanitarian intervention lack a crucial element: "the necessary opinio juris that might t ransform the exception into the rule" (p. 87). His more fundamental point is that the effort of scholars to establish a right of humanitarian intervention challenges traditional legal approaches and "raises questions of evidence and motive in the formation of international law" (p. 2).
For Chesterman, then, the very notion of humanitarian intervention is inconsistent as a principle. Moreover, acknowledging and codifying a new right of humanitarian intervention would have two negative consequences. First, he doubts whether the right would operate in the manner prescribed by its advocates. In his view, it is likely in practice to license self-interested interventionism under the guise of humanitarianism: "States have demonstrated their willingness to intervene on any number of dubious bases--the question ... is whether a further and necessarily subjective legal basis should be given for future interventions" (p. 236). And second, the creation of a new norm would be inimical to the project of establishing an international rule of law by weakening the constraints on the use of force. In the end, he argues forcefully that unilateral intervention (of the kind we saw in Kosovo) is not an alternative to collective action under the charter, but rather the very antithesis of it.
Chesterman's conclusion does beg the question, however, of whether and how state behaviors and expectations are changing. While the lawyers supporting a new customary right overstate their case, there is a body of post-1990 practice that demonstrates support--or at least toleration--for UN-authorized actions with an expressly humanitarian purpose. This is manifest not only through the use of Security Council resolutions that authorize the "use of all means necessary" to secure humanitarian objectives, but also in the ex post facto UN endorsements given to interventions carried out by regional coalitions of states, such as that led by the Economic Community of West African States (ECOWAS) in Liberia in 1990.
The cases of intervention in the past decade are striking in two ways. First, contrary to what is commonly believed, they do not present a clear-cut conflict between sovereignty and intervention. Some instances of intervention in the post--Cold War period involved host-state consent--albeit frequently coerced--for the presence of foreign troops. In fact, in the case of East Timor, the Habibie government's consent was taken as a necessary condition before an international mission could proceed. Furthermore, most examples of intervention in the post--Cold War period (Kosovo and Northern Iraq being major exceptions) involved Security Council resolutions that invoked Chapter VII. One interpretation of this trend is that states are still uncomfortable asserting that a human rights violation by a government against its own people is, in itself, a sufficient justification for the use of force. Instead, the rationale is reinforced by the claim that international stability is being threatened by those violations, eith er through the flow of refugees or the spillover effects of civil war. Such an expansion could be made compatible with a doctrine of state sovereignty and thereby enable traditionally noninterventionist states to support UN action. (9)
Second, the cases demonstrate that the thorniest issues around sovereignty come to the fore not so much at the moment of intervention, but rather after military force has been used and the participating states are deciding how long their commitment should last. During the 1990s, states engaged in missions for humanitarian purposes found themselves rebuilding conflict-ridden societies. In the process, their actions raised serious questions about the legitimacy and viability of international civil authorities, a theme I return to later. (10)
In the end, despite Chesterman's compelling argument, one is left wondering whether legal objections to humanitarian intervention get us very far. This is partly due to the standoff that exists within the legal community itself. But it is also due to the deeper objections lying underneath the legal positions, whether about the strength of developing norms or larger objections to any use of force in international relations. Indeed, Chesterman acknowledges that those who argue for humanitarian intervention ultimately do so on moral grounds--the need to "do something" in the face of evil (p. 236). Moral concerns also motivate those who argue against.
The Ethical Dimension
The ethical objections to humanitarian intervention fall broadly into two types. The first argument, best articulated by Michael Walzer, claims that sovereign states provide the protective shell for the process of self-determination. As such, they are moral entities and should enjoy the presumptive right of nonintervention. (11) It is through the state that political communities--and by extension, individuals--realize their rights to freedom. As the ICISS report states: "The non-interference rule not only protects states and governments; it also protects peoples and cultures, enabling societies to maintain the religious, ethnic, and civilizational differences that they cherish" (p. 31). The norm of nonintervention is intended to apply to all communities equally. In practice, however, it has had particular power for developing countries and former colonies. By emphasizing nonintervention's connection with self-determination, such countries have sought to protect themselves from stronger powers seeking to furth er their selfish interests (the mixed-motive actions that Chesterman is so keen to prevent). This protective interpretation of nonintervention is clearly evident in Chinese reactions to the Kosovo campaign, which China depicted as an attempt to legitimate interventions designed to force countries to change their political systems. (12) China's proposed principles for international relations stress the importance of respecting the "national conditions of each country" and the freedom of each country to "choose its social system and road to development independently." (13)
The second set of ethical objections to interventionism is consequentialist. Even if one could overcome concerns about self-determination, intervention is opposed because of the negative outcomes it can generate. Unanticipated consequences, such as the mass movement of people in the Kosovo case, have led some commentators to claim that good intentions cannot outweigh bad results.
There are three different consequentialist arguments at work. First, as realists such as Henry Kissinger contend, intervention in the name of humanitarianism or democracy is likely to create more problems than it solves. It is impossible to know beforehand if intervention will succeed or whether it will lead to an acceptable level of casualties; there are simply too many unknown variables that the intervening state cannot control. As such, it is "irrational" policy and compromises the national interest. (14) Consequentialists identify a variety of new problems. Opposition may be created on the ground in the course of engaging in military action. Expectations may be inflated among those suffering from oppression elsewhere, who will quickly level the charge of selectivity if there is no intervention to support their cause. Hostility may be provoked among other governments that fear they might suffer the same treatment. Under any of these circumstances, the consequences will be disillusionment and resentment--th e breeding ground for new enemies.
A second version of consequentialism alleges that any use of force, no matter how well intentioned, can potentially lead to chaos. As Robert Jackson has argued, while states have a responsibility to pursue international justice where they can, they should not jeopardize other fundamental values in the process. In balancing these considerations, international peace should have particular weight, since it is in situations of war--particularly war between great powers--where humanitarian values are most likely to be threatened. (15) There is a moral obligation to prevent war, which trumps the moral obligation to promote human rights and democracy elsewhere.
The third argument about consequences rests on a deeper set of beliefs about the nature of international order. This "pluralist" (16) account closely resembles the Vattelian position outlined by Chesterman. It contends that the consensus that underpins international society is a procedural rather than substantive one--limited to agreements about what constitutes acceptable external behavior and reciprocal rules like nonintervention. In other words, the bases for international order begin and end at state frontiers and do not extend to a deeper homogeneity in political, social, or cultural values. For pluralists like Hedley Bull, sovereign states are unlikely to agree about what counts as injustice or oppression inside a state, and hence are unlikely to agree when interventions to change societies would be justified. Any attempt to impose a consensus on human rights may therefore undermine the fragile order that exists in international society. (17) This order, based on mutual toleration of difference, is also viewed as the best guarantee of individual well-being.
A strong non-Western defense of pluralism has been mounted recently by Mohammed Ayoob, (18) who suggests that humanitarian intervention carries shades of neocolonialism. For Ayoob, this contemporary revival of imperialism threatens to erode the legitimacy of an international society that for the first time has become truly global in character. More troubling, it is likely to impair the capacity of states to provide for political order inside their frontiers without providing a strong enough alternative to take its place.
But while effective and legitimate states remain the most solid foundation for international society, the reality of the post-Cold War world has frequently seen the opposite: fragile, fragmenting, or collapsing state entities that expose their civilians to displacement, terror, or slaughter. How can the international community respond?
Sovereignty as Responsibility
If Kosovo lurks behind Chesterman's book, it is the ghost of Rwanda that inspires the work of the ICISS and Nicholas Wheeler. Both argue that despite legal and moral objections, a consensus on certain legitimate cases of humanitarian intervention is emerging in international society. This change is a product of three recent developments: a more expansive definition by the Security Council of what constitutes threats to international peace and security; the revolution in information technology that has heightened awareness of conflict and suffering around the world; and the increased robustness of international human rights norms.
The ICISS was launched at the UN Millennium Assembly in September 2000 (19) in response to Kofi Annan's challenge to the international community to act upon future violations of human rights and humanitarian law. (20) It was cochaired by Gareth Evans, former foreign minister of Australia, and Mohamed Sahnoun, a senior Algerian diplomat and special adviser to the secretary-general. (21) Modeled along the lines of the Brundtland Commission (World Commission on Environment and Development), the ICISS was designed to meet three ambitious goals: (1) to promote a comprehensive debate on the issue of humanitarian intervention; (2) to foster a new global political consensus on how to move forward; and (3) to find new ways of reconciling the principles of intervention and state sovereignty.
The purpose of Wheeler's book, Saving Strangers, is more theoretical: to tip the balance away from pluralism and toward a solidarist understanding of international society. The defining feature of a solidarist society of states, he claims, "is one in which states accept not only a moral responsibility to protect the security of their own citizens, but also the wider one of 'guardianship of human rights everywhere'" (p. 12). Contrasting case studies from the Cold War and post--Cold War periods, Wheeler argues that international society has evolved to recognize the norm of humanitarian intervention as a legitimate exception to the rules of nonintervention and nonuse of force. In mounting his case, he defends the larger constructivist claim that state actions will be constrained if they cannot be legitimated and that new norms enable new practices to develop. (22)
The emerging norm of humanitarian intervention suggests that when all other diplomatic actions have failed, states can legitimately employ military force against another state in order to protect civilians in danger. In both Saving Strangers and the findings of the ICISS, this right is allegedly derived from a more fundamental shift in the understanding of sovereignty in international relations--a move from "sovereignty as authority" to "sovereignty as responsibility." (23) The former defines sovereignty as unrivaled control over a delimited territory and the population residing within it, while the latter suggests that sovereignty is conditional on a state demonstrating respect for a minimum standard of human rights. According to the ICISS,
It is acknowledged that sovereignty implies a dual responsibility:
externally--to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state. In international human rights covenants, in UN practice, and in state practice itself, sovereignty is now understood as embracing this dual responsibility. Sovereignty as responsibility has become the minimum content of good international citizenship. (p. 8)
For the ICISS, this move from the "right to intervene" to the "responsibility to protect" is more than semantic. It shifts the focus of the debate away from the claims of the interveners back to where it should be: "on the requirements of those who need or seek assistance" (p. 16). This formulation also reintroduces the moral-legal tension highlighted by Chesterman.
Neither Saving Strangers nor the report of the ICISS convincingly refute the legal objections. For his part, Wheeler gives too much credence to Teson, whose reading of the law on the use of force is highly controversial. In the case of the ICISS, the reasoning is incomplete. On the one hand, the commissioners admit "there is not yet a sufficiently strong basis to claim the emergence of a new principle of customary international law" (p. 15). On the other hand, they claim that there is "an emerging guiding principle"--yet fail to show us how it can be derived from either natural law or existing treaties, such as the genocide convention. While it is true that most states in the international community have accepted, through their ratification of the convention, an obligation "to prevent and to punish" acts of genocide, many legal scholars deny that this sanctions humanitarian intervention. (24)
What these two contributions do offer, however, is an account of changing values and practices in international society. They also provide powerful tools for responding to the ethical objections to humanitarian intervention.
Let us look first at the objection related to self-determination. As Walzer himself admits, (25) this protective shell breaks down once the integrity of popular sovereignty is questioned--that is, if there is a clear absence of fit between a state and the underlying political community. In at least two cases, self-determination can be said to be in suspension, making intervention morally defensible: when a community fragments and there are competing factions in active revolt; and situations of extreme humanitarian emergency. When the rights of individuals within a community are seriously threatened such that they can no longer be said to be truly self-determining, outside intervention to protect basic individual rights is morally defensible. As stated in the basic principles of the ICISS, "Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of nonintervention yiel ds to the international responsibility to protect"(p. xi).
It is crucial to reiterate that the moral legitimacy of intervention is limited to extreme cases that "shock the conscience of mankind." If the right of self-determination is to be respected, then policymakers must clearly separate a minimalist conception of human rights protection from a maximalist intention to reshape societies in a Western, liberal-democratic image. Further, as Wheeler argues, the threshold of suffering needs to be great for other states to put their own soldiers at risk: "It cannot be a 1:1 exchange, because the consequentialist ethics that justify humanitarian intervention demand that any loss of life, as a consequence of intervention, be outweighed by the number of lives saved as a result of it" (p. 51). Yet he offers little beyond "sympathy" and "empathy" to guide political leaders who must make these life-and-death calculations. The ICISS report goes somewhat further but also underestimates the difficulty in establishing measures of what constitutes "extreme." In its formulation, a mo ral defense of intervention can be mounted in two cases: where there is a large-scale loss of life--with or without genocidal intent--that results from deliberate state action or the massive failure of state structures; and where there is large-scale "ethnic cleansing" carried out by killing, rape, torture, or mass expulsion. In both instances, it argues that these actions can be "actual or apprehended" (p. 32). This phrasing suggests a more permissive approach to legitimizing intervention.
Next, let us consider responses to the consequentialist challenges. Though formidable, they do not necessarily preclude action in extreme cases. The first general point is that consequentialist reasoning is not as straightforward as it seems. Which set of consequences should we consider--short term or long term? For example, while in the short run the NATO bombing made the situation worse for civilians in Kosovo, in the long run many refugees returned and political change took place in Serbia.
Second, while consequentialists like Kissinger rightly emphasize the "national interest," this concept need not be limited to concern for one's own citizens. It can be argued that the pursuit of national interest in our globalized world demands attention to new sources of instability, even if they are within the domestic jurisdiction of other states. For those states in the developing world, this connection derives partially from a history of dependence and misguided foreign interventions. But it also stems from the transnational nature of today's security threats. In the view of the ICISS, "human security is indeed indivisible. There is no longer such a thing as a humanitarian catastrophe occurring 'in a faraway country of which we know little'" (p. 5).
Third, although the potential for interstate war should be guarded against, it is arguably not the most significant threat to humanitarian values in modern international society. As the ICISS notes, "The overwhelming majority of today's armed conflicts are internal, not interstate. Moreover, the proportion of civilians killed in them increased from about one in ten at the start of the 20th century to around nine in ten by its close" (p. 13). Surely the United Nations, a body dedicated to managing international peace and security, must adjust to these changes in the nature and magnitude of conflict.
Fourth, while diversity continues to characterize international society in the twenty-first century, there is a greater degree of consensus on the meaning of sovereignty and human rights today than the pluralists suggest. Bull's pluralist writings emphasized the difference between Western notions about the rights of individual persons against the state, versus the Soviet conception of rights as conditions brought about by the state and the Third World emphasis on collective rights. The post--Cold War period has seen less tension between individual and collective rights and a greater willingness on the part of states such as China to sign on to international human rights agreements. (26) As the ICISS concludes, "The defence of state sovereignty, by even its strongest supporters, does not include any claim of the unlimited power of a state to do what it wants to its own people" (p. 8).
Fifth, the sovereignty norm should not give developing states licence to complete their state-building process using whatever means deemed necessary. The international community can no longer accept the killing of innocent civilians as a necessary part of state making--not only because it may threaten international peace and security, but also because the citizens inside weak states should enjoy the same basic rights as those in the developed world. (27) As international organizations and NGOs become increasingly involved in state building around the world, new goals and measures must be established to ensure balance among the goals of stability, individual freedom, and economic development.
Finally, the use of force does not imply that law and morality have ceased to operate. It is possible to conceive of a limited and regulated practice of intervention designed to address extreme cases. Even under these criteria, one could never completely erase the possibility of abuse or the selective application of the practice. But these objections in and of themselves are not strong enough and should not prevent action where there is a will to act and capacity to make a difference. As Wheeler writes, "Addressing the charge if selectivity requires treating like cases alike, but, with the best will in the world, it is just not possible to take the same action in every case where human rights are threatened, because prudence as a moral virtue dictates different responses in different cases" (p. 48). There are examples (such as Rwanda) where the timely use of force could succeed in alleviating mass human suffering.
Establishing Criteria
In developing regulations for morally defensible intervention, both Wheeler and the ICISS rely on the traditional "just war" framework. Wheeler identifies four criteria that would constitute a legitimate humanitarian intervention: just cause (a "supreme humanitarian emergency"); last resort; proportional use of force; and high probability of achieving a humanitarian outcome (p. 34). The ICISS takes a more ambitious line, listing six principles for the "responsibility to protect": right cause; right intention; right authority; last resort; proportionate means; and reasonable prospects.
Before analyzing these in more detail, it is important to underscore the challenges associated with applying just war concepts. As ICISS participant Michael Ignatieff has shown, (28) any criteria established by the international community may produce perverse reactions from actors on the ground. For example, if the only "just cause" for foreign intervention is large-scale and systematic human rights abuses, rebel groups desiring outside help may trigger that threshold themselves and provoke mass killing. Ultimately, threshold conditions are political--subject to interpretation and manipulation. Similarly, if proportionality is a key criterion for legitimate action, and the West continues to prefer strategic air campaigns, opponents may put civilians next to military targets to test resolve. In addition, just war principles sit uncomfortably with some of the political and technological realities of the twenty-first century. As Nick Rengger has argued, today's world is dominated by adherence to universally appl icable moral rules, which contrasts with the "particularist, case-based" reasoning that characterized the medieval and early modem just war tradition. Modern armies in liberal states also have the power to fight their opponents with greater precision and "justice" than ever before. (29)
Yet just war thinking is the most sophisticated framework we have for thinking about moral action in the context of war. As such, it remains a vital resource for those who wish to legitimate the use of force for humanitarian purposes. If we are to employ a just war framework, Wheeler's list of four criteria serves us better than that forwarded by the ICISS. The two additional principles in the "responsibility to protect" complicate the issue of legitimacy even further.
The first is "right intention." Wheeler wisely avoids the position that a legitimate humanitarian intervention must include the primacy of a humanitarian motive. Given the inevitable mix of interests and values in international relations, we would search forever for a case of pure intention. In addition, as Wheeler explains, the problem with relying on motive "is that it takes the intervening state as the referent object for analysis rather than the victims who are rescued as a consequence of the use of force" (p. 38). A better approach, particularly given consequentialist objections, is to concentrate on the prospects for a humanitarian outcome. As long as the motives and means do not undermine that result, we are justified in considering an intervention as humanitarian (even if it is accompanied by more strategic rationale). This does not solve the problem of determining exactly when "the job is done," but it does keep policymakers focused on the humanitarian impact of their diplomatic and military strategi es.
More problematic is the question of "proper authority." While Wheeler omits authorization from his criteria for a legitimate intervention, the ICISS draws on Article 24 of the charter to argue that the Security Council has "primary responsibility for the maintenance of international peace and security." There are two variations on this general rule. First, Articles 10 and 11 of the charter, supported by the "Uniting for Peace" Resolution of 1950, give the General Assembly some responsibility for matters of international peace and security. It should be remembered, however, that the assembly's decisions are not binding and only have the status of "recommendations." Second, Chapter VIII confers security roles and responsibilities on regional organizations. In this case, the Security Council is to "be kept fully informed of activities undertaken or in contemplation under regional arrangements."
These provisions for Security Council authorization suggest that ad hoc "coalitions of the willing," acting without UN endorsement, have dubious status. Furthermore, such efforts could threaten to erode an important source of legitimacy in international society. On this issue, the ICISS and Chesterman are in full agreement: developing a consensus on military intervention requires working through the collective mechanisms of the UN, not around them. "The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work much better than it has" (p. 49).
Nonetheless, as acknowledged by some ICISS commissioners (p. viii), complete reliance on Security Council authorization could prove problematic for moral and practical reasons. As the Kosovo intervention illustrated, the moral case for action does not necessarily depend on authorization from an international organization. Nor do claims of illegality necessarily absolve those who have the power to act from their moral responsibilities. We have witnessed instances of intervention, both during and after the Cold War, where acts have been morally but not legally justifiable.
Additionally, the UN Security Council may not bear the weight being placed on it. It is worth recalling that the principle of nonintervention outlined in the charter is not only concerned with protecting domestic jurisdiction. As Edward Mortimer has observed, it also reflects a more general belief held by the charter drafters that decentralized action by individual nation-states is a more effective strategy for creating order than supranationalism. (30) Today's UN is not yet a world government and has only rudimentary competence (legally and practically) to intervene in domestic crises.
While one of the original purposes of the Security Council was to act as guardian for international order, the behavior of individual members of the Council is not always encouraging. The veto-bearing Permanent Five can rest assured that they are unlikely to be on the receiving end of a humanitarian intervention, yet they can also block other UN actions for narrow political reasons. (31) This problem is exacerbated by the fact that the Security Council is viewed by some states as unrepresentative and a poor proxy for "international will." (32) The ICISS solution, a "code of conduct" for the use of the veto, is a useful reform in theory but unlikely to be realized in practice.
Finally, policymakers need to confront the possibility that unilateral action can be more timely and effective, especially if undertaken by a regional power with the right mix of knowledge and capability. Three interventions from the Cold War period--Tanzania in Uganda, India in East Pakistan, and Vietnam in Cambodia--lend some support to this view. Even where UN Security Council authorization has been given, it is clear that action in most cases would have been unlikely if a neighboring state with a strong national as well as humanitarian interest had not taken the lead. The Australian-led use of force in East Timor is the most recent example.
Conclusion
Despite these limitations in the ICISS criteria, there is no doubt that the commission has made great strides in meeting its three objectives. The extensive consultation exercise, supported by an in-depth program of research, has left an invaluable legacy of material for scholars and pa1icymakers. (33) For some, the biggest contribution of the ICISS is its official sanctioning of a new language with which to talk about humanitarian intervention: one based on responsibilities rather than rights. Arguably more valuable, however, is its notion of a continuum of action. If there is a responsibility to protect, there is also a responsibility to prevent and to rebuild. This recognition is a partial response to Chesterman's critique that the proponents of humanitarian intervention too often set up a false dichotomy: "They rest on the premiss [sic] that a humanitarian crisis with a military dimension presents the dilemma of doing 'something' or doing nothing: the just war or just peace" (p. 236).
In reality, the spectrum of possible action is wider. To date, the policy debates surrounding humanitarian intervention have been skewed in favor of issues like strategic bombing, exit strategies, and criminal proceedings. There is also a tendency to equate failure with a lack of military action on the part of the international community. The possibility that the international community has already failed if the need for military action arises has not been adequately acknowledged. The alternatives are not simply invasion or inaction. If there is indeed a responsibility to protect, then the crucial time for action is when human rights reports arrive that document deteriorating situations in foreign countries. There is also an ongoing need and responsibility to build capacity in weak states to provide for basic human rights.
The ICISS continuum is not without its problems. On the front end of the spectrum, it confronts formidable political impediments to preventive action. Despite scores of studies on the merits of prevention, it has proven exceedingly difficult to marshal the resources and vigilance in the absence of a full-scale crisis. On the back end, there is growing concern that the international community, by taking on expanded reconstruction responsibilities, is entering into the next generation of imperialism. If Western states (many of which are former colonizers) lack the "stomach" for a long-term rebuilding, then we are faced with a dilemma: only action to address root causes is likely to prevent human suffering over the long term, yet neither the resources nor political will are being provided to enter into such commitments.
As the ink was coalescing around the commission's work, the horrific terrorist attacks of September 11 occurred. There can be little doubt that these events deflected attention from the ICISS's efforts to develop a new consensus on humanitarian intervention. In fact, the commission took pains to offer a preemptory response to September 11 and draw distinctions between two kinds of military action: an act of self-defense designed to respond to terrorist attacks in one's own state; and military action in another state for human protection purposes (pp. viii-ix).
There are at least three ways, however, in which the work of the ICISS and the broader war against terror connect. First, as the commission notes, the rules and principles it outlines to govern the use of force (such as right cause and proportionality) should continue to regulate any military operation in international society. The temptation of Western leaders to "take the gloves off' and abandon restraint in combating terrorism must be strongly resisted. (34) Second, while self-defense (not humanitarian intervention) was the justification offered for war against Afghanistan after September 11, we might reasonably ask what the international community could and should have done prior to that date to prevent massive human rights violations inside that country, particularly against women. If September 11 had not occurred and the Taliban had survived, would its actions against its own citizens have crossed the threshold to "shock the conscience of mankind"? If so, what tools should have been used to prevent furt her suffering?
Lastly, if one is to believe the statements of world leaders after September 11, especially British prime minister Tony Blair, (35) the issue of selectivity that has dogged humanitarian intervention may wane in the future. The situation in Afghanistan proved tragically that state failure anywhere could have consequences far wider than that particular state's population. If the world truly has become more interconnected, and the conditions within developing countries have been linked to the war against terror, then perhaps Kofi Annan's dream of "no more Rwandas" will be realized.
Notes
Jennifer Welsh is university lecturer in international relations at the University of Oxford and a fellow of Somerville College.
(1.) A discussion of the legal positions can be found in the Independent International Commission on Kosovo, The Kosovo Report (Oxford: Oxford University Press, 2000). See also Peter Hilpold, "Humanitarian Intervention: Is There a Need for Legal Reappraisal?" European Journal of International Law 12, no. 3 (2001): 451-452.
(2.) Chesterman focuses his analysis on Anthony D'Amato, International Law: Process and Prospect (Dobbs Ferry, N.Y.: Transnational, 1987); and Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 2d ed. (Dobbs Ferry, N.Y: Transnational, 1997).
(3.) "To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all."
(4.) The debate between "restrictionists" and "counter-restrictionists" over the meaning of Article 2 (4) is summarized by Wheeler (pp. 40-47).
(5.) Chesterman relies heavily on the arguments of Oscar Schachter. See "The Legality of Pro-Democratic Invasion," American Journal of International Law 78 (1984): 646. The charter prohibition on the use of force is also supported by subsequent UN declarations, such as the 1965 General Assembly Declaration on the Inadmissibility of Intervention and the 1970 General Assembly Declaration on Friendly Relations and Co-operation Among States.
(6.) See Teson, Humanitarian Intervention; Christopher Greenwood, "International Law and the NATO Intervention in Kosovo," International and Comparative Law Quarterly 49, no. 4 (2000): 926-934.
(7.) The cases that would be included are Liberia (1990-1992), northern Iraq (1991), Bosnia and Herzegovina (1992-1995), Somalia (1992-1993), Rwanda (1994), Haiti (1994), Albania (1997), Sierra Leone (1997-present), Kosovo (1998-1999), and East Timor (1999).
(8.) As Chesterman has argued more recently, "Since clear treaty provisions prevail over customary international law, an ordinary customary rule allowing intervention is not sufficient to override Article 2(4). The only way intervention for purposes beyond those of self-defence of collective security could be considered legal is if such interventions had acquired the status of jus cogens." See Michael Byers and Simon Chesterman, "Changing the Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law," in J. L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, in press).
(9.) This reasoning convinced China to refrain from the use of its veto with respect to northern Iraq.
(10.) There is a burgeoning literature on the topic of transitional administrations. See, for example, Richard Caplan, A New Trusteeship? The International Administration of War-Torn Territories, IISS Adelphi Paper 341 (2002); Simon Chesterman, "East Timor in Transition: Self-Determination, State-Building and the United Nations," International Peacekeeping 9, no. 1 (2002): 45-76; and Yossi Sham and Juan J. Linz, Between States: Interim Governments and Democratic Transitions (Cambridge: Cambridge University Press, 1995).
(11.) Michael Walzer, "The Moral Standing of States: A Response to Four Critics," Philosophy and Public Affairs 9, no. 3 (1980): 209-229.
(12.) See Zhang Yunling, "China: Whither the World Order After Kosovo?" in Albrecht Schnabel and Ramesh Thakur, eds., Kosovo and the Challenge of Humanitarian Intervention (Tokyo: United Nations University Press, 2000), pp. 117-127. Similar objections were voiced by Russia and India.
(13.) See, for example, the joint statement by the leaders of China, Russia, Tajikistan, Kazakhstan, and Kyrgyzstan at their summit meeting 25-26 August 1999.
(14.) Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century (New York: Simon & Schuster, 2001).
(15.) Robert Jackson, The Global Covenant: Human Conduct in a World of States (Oxford: Oxford University Press, 2000).
(16.) Pluralism (and its counterpart solidarism) was originally coined by Hedley Bull in "The Grotian Conception of International Society," in Herbert Butterfield and Martin Wight, eds., Diplomatic Investigations: Essays in the Theory of International Politics (London: Allen & Unwin, 1966), pp. 51-74. For more on pluralism, see James Mayall, World Politics: Progress and Its Limits (Cambridge: Polity Press, 2000).
(17.) This is Hedley Bull's argument in Intervention in World Politics (Oxford: Clarendon Press, 1984), p. 193.
(18.) Mohammed Ayoob, "Humanitarian Intervention and State Sovereignty," International Journal of Human Rights 6, no. 1 (2002): 81-102.
(19.) Canada was a major financial backer for the ICISS. Other funders included the Carnegie Corporation of New York, the William and Flora Hewlett Foundation, the John D. and Catherine T. MacArthur Foundation, the Rockefeller Foundation, and the Simons Foundation.
(20.) See his Annual Report to the General Assembly, press release SG/SM7136, 20 September 1999.
(21.) The other members of the panel spanned a diverse range of regional backgrounds and perspectives: Gisele Cote-Harper (Canada), Lee Hamilton (United States), Michael Ignatieff (Canada), Vladimir Lukin (Russia), Klaus Naumann (Germany), Cyril Ramaphosa (South Africa), Fidel V. Ramos (Philippines), Cornelio Sommaruga (Switzerland), Eduardo Stein Barillas (Guatemala), and Ramesh Thakur (India).
(22.) For more discussion on the origin and evolution of norms, see Martha Finnemore and Kathryn Sikkink, "Norm Dynamics and Political Change," International Organization 52, no. 4 (1998): 887-917.
(23.) An earlier articulation of "sovereignty as responsibility" can be found in Francis M. Deng, et al., in Sovereignty as Responsibility: Conflict Management in Africa (Washington, D.C.: Brookings Institution, 1996). Samuel Barkin adopts a similar approach in "The Evolution of the Constitution of Sovereignty and the Emergence of Human Rights Norms," Millennium 27, no. 2 (1998): 229-252.
(24.) See, for example, William Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), pp. 501-502.
(25.) Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3d ed. (New York: Basic Books, 2000), pp. 101-108; Walzer, "The Politics of Rescue," Dissent (winter, 1995): 35-41.
(26.) For analysis of China's participation in international human rights norms, see Rosemary Foot, Rights Beyond Borders: The Global Community and the Struggle over Human Rights in China (Oxford: Oxford University Press, 2000).
(27.) See Sam Makinda's response to Ayoob, "The Global Covenant as an Evolving Institution," International Journal of Human Rights 6, no. 1 (2002): 113-126.
(28.) Michael Ignatieff, "Human Rights, Human Wrongs," The Amnesty Lectures, 2 February 2001.
(29.) Nicholas Rengger, "On the Just War Tradition in the Twenty-first Century," International Affairs 78, no. 2 (2002): 360-361.
(30.) Edward Mortimer, "A Few Words on Intervention: John Stuart Mill's Principles of International Action Applied to the Post--Cold War World" (London: John Stuart Mill Institute, 1995), pp. 15-17.
(31.) Notable examples include China's use of the veto in February 1999 to block a continued UN peacekeeping presence in Macedonia, and the recent threat by the United States to veto the continuation of the mission in Bosnia.
(32.) This is Ayoob's point in "Humanitarian Intervention and State Sovereignty." For more on the contingent nature of Security Council authority, see Ian Hurd, "Legitimacy, Power, and the Symbolic Life of the UN Security Council," Global Governance 8, no. 1 (2002): 35-51.
(33.) The material can be located on a special ICISS website: www.icissciise.gc.ca.
(34.) Rengger, "The Just War Tradition," p. 362.
(35.) See, for example, Blair's speech to the Labour Party conference, reprinted in The Guardian, 3 October 2001, p. 4.
Welsh, Jennifer M.
Source Citation (MLA 8th Edition)
Welsh, Jennifer M. "From right to responsibility: Humanitarian Intervention and International Society. (Review Essay)." Global Governance, vol. 8, no. 4, 2002, p. 503+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA95679521&it=r&asid=58b06c0c71c14d903d062c6bb7a8827b. Accessed 11 June 2017.
Gale Document Number: GALE|A95679521
QUOTE:
Chesterman has written a pathbreaking book about the varied experiences of the United Nations in state building.
You, the People: The United Nations, Transitional Administration, and State-Building
Roy Licklider
120.1 (Spring 2005): p149.
Copyright: COPYRIGHT 2005 Academy of Political Science
http://www.psqonline.org/History.cfm
You, the People: The United Nations, Transitional Administration, and State-Building by Simon Chesterman. New York, Oxford University Press, 2004. 280 pp. $95.00.
Peace Time: Cease-Fire Agreements and the Durability of Peace by Virginia Page Fortna. Princeton, NJ, Princeton University Press, 2004. 243 pp. Cloth, $55.00; paper, $18.95.
These books by two impressive young scholars on opposite ends of Manhattan (New York University and Columbia, respectively) at first seem to have little in common. They concern different issues, use different methods, and cite different literatures. But they both focus on the possible actions of third parties in attempting to help resolve the major security problems of our time, and, using multiple methods, both substantially advance our knowledge in these areas.
Simon Chesterman has written a pathbreaking book about the varied experiences of the United Nations in state building. Its organization is one of its many strengths. The introduction focuses on precedents in the League of Nations, the Allied occupation of Germany, and decolonization. Building on his expertise in international law, he stresses the legal foundations of these events as well as the political realities that shaped them.
But the bulk of the book is devoted to an analysis of the thirteen cases: Congo, West New Guinea, Namibia, Western Sahara, Cambodia, Somalia, Bosnia, Eastern Slavonia, Kosovo, East Timor, Sierra Leone, Afghanistan, and Iraq.
Instead of a separate chapter for each, Chesterman first organizes them in terms of the tasks which the UN attempted to fulfill: decolonization, peaceful transfer to an existing government, administration to hold elections, administration with no end state, and responsibility for basic law and order. This allows him to compare cases that are, in fact, comparable, as well as trace the shifting patterns of mandates over time and give us the essential facts for each case. The remaining chapters draw on the cases but focus on common, important functions: peace and security, building democracy, transitional justice, humanitarian and development assistance, and elections and exit strategies. Throughout, he uses a combination of legal analysis and in-depth political reporting (both in the countries and in the United Nations itself).
Many of his conclusions are not surprising: The United Nations has been handicapped by inadequate resources, political divisions, overly ambitious mandates, and organizational problems. Under the circumstances, it is perhaps surprising that there are some successes, usually the less ambitious efforts, along with some resounding failures. It has not been successful using military force. Quick elections are not a good exit strategy.
His more fine-grained analysis is consistently more interesting. He notes that the UN never developed a doctrine of civil administration, despite its multiple experiences. Although committed to bringing democracy to countries, it has been unable to make itself accountable to the local populations. Internal politics have hindered the recruitment of qualified personnel in the field (in East Timor, it was hard to hire people who spoke Portugese!). Transitional justice is not necessary for democracy, and amnesty may be appropriate, but establishment of a working justice system needs to be an immediate priority (and is not). Humanitarian and development assistance often conflict, sometimes have negative impacts on the target country, and often end too soon. "State-building after a war will always take years, perhaps decades, and it is disingenuous to suggest otherwise to domestic publics" (p. 235).
Unfortunately, the high cost of this volume may substantially hinder its dissemination. Virginia Fortna tackles another interesting problem--why do some peace agreements after inter-state wars last whereas others do not and, in particular, what is the role of cease-fire agreements in this process? Her analysis focuses on the forty-eight agreements in twenty-five wars between 1946 and 1997. She asks what conditions make agreements more or less likely to last, when are cease-fire agreements more likely to be employed, on balance do they make peace more or less likely, and what specific provisions, if any, are associated with peace? As with the best of recent academic analyses, she uses several different but complementary methods: conventional quantitative analysis (using her own database), a less systematic examination of patterns of all the cases, and in-depth case analysis of the Israeli--Syrian and Indian--Pakistani cases (both of which have numerous violent conflicts and cease-fire agreements, allowing comparison within as well as between them). Her crystal clear presentation of both methods and results makes this an admirable illustration of how to do research for undergraduate and graduate courses.
The problem is framed as preserving peace when the belligerents have fought one another and continue to disagree over the political issues that triggered the war in the first place. She concludes that decisive military victory, high costs of war, lack of prior conflict between the belligerents, lack of threat to the existence of one of the states, and lack of contiguous borders all make renewed war significantly less likely, both in quantitative and case analysis. Equally interesting, "relative power, the number of states in the war, whether the conflict is over territory, measures of states' 'expected utility' for war, and changes in regime type ... are less helpful for understanding whether peace will last" (p. 9). Belligerents resort to cease-fire agreements in situations in which war seems likely to break out again, and these agreements seem to significantly reduce the likelihood of this occurring (the analysis of the Israeli-Syrian case is particularly striking). She then disaggregates the agreements and finds that demilitarized zones, explicit guarantees and peacekeeping by outsiders, and joint commissions to help resolve issues are all associated with peace, whereas arms control agreements, controls over groups that oppose the cease-fire, troop withdrawals, and third-party mediation are not. On the controversial issue of peacekeeping by outsiders, she finds that it can be very helpful but that if it fails, reestablishing it tends to be futile.
On balance, then, these are two very impressive, albeit very different, books. Their combination of systematic analysis, in-depth research and knowledge, and focus on both theoretical and policy issues make them models worthy of admiration and emulation.
ROY LICKLIDER
Rutgers, The State University of New Jersey
Licklider, Roy
Source Citation (MLA 8th Edition)
Licklider, Roy. "You, the People: The United Nations, Transitional Administration, and State-Building." Political Science Quarterly, vol. 120, no. 1, 2005, p. 149+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA131971626&it=r&asid=f8f6671c2f96e3f7497abca4db33bd0e. Accessed 11 June 2017.
Gale Document Number: GALE|A131971626