This brings us to the second tension and source of confusion. There is a paradox at the heart of human rights law, which again is revealed most forcefully in relation to economic and social rights. On the one hand, the very manner in which human rights are expressed signifies a breach with the tradition of absolute sovereignty, according to which each state could treat its own citizens as it pleased, and no other state had a right or responsibility to interfere. On the other hand, human rights law is also the product of an era that still thought largely in terms of stable populations sitting tight behind their borders and subject only to national political and economic forces. On the obligations side of human rights law there is a heavy assumption that every state has specific obligations to its own citizens, or at least the individuals under its jurisdiction, which go very much beyond obligations to the citizens of the rest of the world. It is when it comes to obligations to the citizens of the rest of the world (‘extraterritorial obligations’ in legal jargon) that international law becomes most nebulous and controversial. This finds expression in the debates surrounding humanitarian intervention, for instance, but it is also a contentious issue when it comes to the obligations of rich states in relation to the economic and social rights of the citizens of poor states. The notion that non-state actors, including inter-governmental organisations, transnational corporations or non-governmental organisations (NGOs), might have legal human rights obligations is even more underdeveloped. The state-oriented way of thinking about obligations has the advantage of legal certainty, and it is in this area that many recent victories, described in this chapter, have been achieved. However, the exclusive reliance on obligations of the state towards its own nationals is also increasingly felt to be inadequate for addressing social justice issues in a globalised and privatised world.
United Nations Emergency Service
A working group of peace activists and NGO leaders have been developing for some years a proposal for the creation of a UN Emergency Peace Service (UNEPS). The central idea is to have in being a small, highly trained, professional corps that would be available at short notice and with on longest possible geopolitical leash to prevent and contain humanitarian catastrophes, especially those with genocidal overtones. Undertakings of this sort were done on an ad-hoc basis during the 1990s but without sufficient political will on the part of major states, and thus without an appropriate definition of UN mission and without the provision of adequate capabilities. The UN thus often operated ineffectually in situations of humanitarian emergency, which discredited the UN and provided too little, too late for peoples being victimised. The genocide in Rwanda in 1994 remains a paradigmatic instance of UN failure, and the current feeble response to the mass killings and crimes against humanity in the Darfur region of Sudan is a continuing reminder of how ill-equipped the UN is to discharge its ‘responsibility to protect’ even in response to extreme conditions. It is still relevant to recall the devastating critiques of the UN failures to protect vulnerable peoples in either Bosnia or Rwanda (Rieff 1995; Melvern 2000).
The High-Level Panel also endorses the approach to humanitarian intervention adopted by the International Commission on State Sovereignty and Intervention. This is not surprising considering that the earlier report had been so favorably received in international circles and that the forceful co-chair of the latter was Gareth Evans, who was also a member of the High-Level Panel (International Commission on State Sovereignty and Intervention 2001). In essence, state sovereignty is overridden if a humanitarian catastrophe is unfolding within a state, but the political language of response is shifted from encroachment on the state to the duty of the international community to act. The approach is well-expressed by the High-Level Panel:
We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide or other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent. (UN 2004: 66)