The Subsidiary Responsibility of the International Community Under Public International Law
The foregoing analysis from the perspective of political morality has shown that a uniquely state-based approach is unable to cope with the problem of governance in and by fragile states. Public international law, too, must take this finding into account. As will be shown, there are ways to do so within the existing normative structures, although the state is, and remains, the central actor for the international legal system and hence the primary duty bearer of international legal standards for good governance. For this purpose, we will now look at the three aspects just developed from the point of view of public international law: the contents and bearers of a subsidiary responsibility, the standards applicable to the fulfillment of the responsibility, and the purpose of international engagement.
Contents and bearers of a subsidiary responsibility
Under public international law, a subsidiary responsibility of the international community to ensure the minimum standards of good governance has gained recognition in the past two decades. It flows from the fact that sovereignty is not absolute, but qualified by obligations to protect human rights, and from the fact that human rights, as obligations erga omnes, are considered the object of international concern. The international community uses international organizations, particularly the U.N., to prevent and counter human rights violations. In this context, it is significant that the Security Council took binding actions under chapter 7 of the U.N. Charter in cases of massive human rights violations, even those that did not have repercussions on neighboring states,28 and in cases where a democratically elected government was ousted by a military coup d’etat.29 In doing so, the Security Council acted upon the subsidiary responsibility of the international community in cases of severe violations of governance standards as a part of its responsibility for the maintenance of international peace and security (article 24.1, U.N. Charter). The—albeit implicit-recognition of a subsidiary collective “responsibility to protect” by the World Summit confirms this interpretation.30
Governance failure in fragile states does not happen overnight. Usually, two phases can be distinguished: the first during which the violation of legal standards of good governance is imminent, and the second in which these violations take place. A subsidiary responsibility to ensure the minimum standards of good governance thus requires preventive and restorative actions. Theoretically, both types of actions can be taken under chapter 7 because imminent and actual violations can both be considered threats to the peace in the sense of article 39 of the U.N. Charter if they are sufficiently grave. In practice, the Security Council uses its power to address recommendations so as to prevent imminent violations, and reserves its power to issue binding decisions to cases of actual violations.
There are no specific rules determining the conditions under which the council must fulfill the subsidiary responsibility incumbent on the international community. Such criteria were debated only with respect to a “responsibility to react,” namely a responsibility to have recourse to (military) force to protect a population, but were not accepted for it by the World Summit in 2005 (Stahn 2007). A fortiori, they do not exist for a “responsibility to prevent” or a “responsibility to rebuild”31 Therefore, from a legal perspective, the subsidiary responsibility to protect only empowers the international community to act, but does not oblige it—there is no duty to protect. Thus, there is a discrepancy between the moral duty to help and international law as long as the decision to have recourse to binding measures under chapter 7 remains within the political discretion of the Security Council.
In the absence of collective actions authorized by the Security Council, the question arises whether individual states or even nonstate actors such as business enterprises or NGOs may act in fulfillment of the responsibility of the international community. Individual states may act because human rights constitute obligations erga omnes. Yet, the sovereignty of the targeted state and the concomitant prohibitions of intervention and of the use of force largely exclude effective preventive, reactive, or restorative actions against or without the will of the former.
As preventive measures, that is, before a violation occurs, individual states can merely warn another state against impending human rights violations. This action does not violate the prohibition of intervention because the warning state has a legally recognized interest in the respect of human rights as they constitute obligations erga omnes. More effective proactive measures, however, such as support for capacity building, presuppose the consent of the targeted state, if the Security Council did not authorize them. Arguably, under article 2.1 of the ICESCR, states are obliged to accept international assistance if they lack sufficient means to realize economic, social, and cultural rights. It is, however, still disputed whether states are obliged to provide such assistance.32
As a protective measure, that is, when serious human rights violations are occurring, a nonmilitary intervention by individual states can merely take the form of a call for cessation.33 Although basic human rights are norms erga omnes, individual states may not take any other unilateral nonforcible countermeasures.34 In the absence of a Security Council authorization, military interventions and an ensuing military occupation during the rebuilding phase constitute prohibited use of force. The reluctance of the international community to react, through the Security Council, in cases of serious violations of human rights by authorizing the use of force against the perpetrator state is at the basis of the debate about the legality of unilateral, that is, unauthorized, humanitarian interventions: it can be seen as an attempt to harmonize the requirements of morality with international law by allowing individual states or particular state coalitions to act in fulfillment of the responsibility of the international community.
NATO’s intervention in Kosovo marked the turning point in the debate. Before it, the proponents of such a right, mainly from the United States, invoked a right of the state to save its own nationals abroad that they considered an exception to the prohibition of the use of force preceding the U.N. Charter (Amerasinghe 2006, 16-22). Numerous European decision makers and international lawyers, who had previously rejected a unilateral humanitarian intervention, changed their position, presuming an imminent threat of genocide in Kosovo. The justification for unilateral intervention in favor of another state’s population was twofold: first, it was argued that the prohibition of the use of force had to be harmonized with the other central pillar of the U.N. system, the protection of human rights (Cassese 1999, 793). Second, proponents of intervention borrowed from considerations of morality to contend that there is a right to help a population defend itself against genocide or “ethnic cleansing” (e.g., Doehring 2004, 448). Yet this approach met with considerable and consistent opposition from numerous states, such as Russia, China, and many developing states, and subsequently was not ratified by the Security Council. It, therefore, cannot be considered to have acquired the status of customary international law (Cassese 1999).
In conclusion, states are seriously constrained by law in taking up the subsidiary responsibility of the international community: in that regard, a discrepancy between international law and morality remains.
The same conclusion holds true a fortiori for nonstate actors, such as business enterprises or NGOs: if international law does not permit states to act on their own volition in the place of the international community if the Security Council is paralyzed, it is only logical that it does not empower nonstate actors to do so. These actors are subjects of international law only with respect to a specific rule that binds or entitles them, and such rule concerning a right or duty to help a state discharge its obligations of good governance is nowhere in sight.