The European Journal of International Law Vol. 20 no. 3 © EJIL 2009; all rights reserved
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Humanity as the A and Ω of Sovereignty: Four Replies to Anne Peters
Emily Kidd White* 1 Introduction Often the duty to intervene in sovereign states to prevent mass atrocity is used as a starting point for engaging in broader questions of global justice.1 While debate on this issue has historically centred on the existence of a right to intervene, this has changed with the recent promulgation and adoption of the Responsibility to Protect (R2P).2 Rather than employing the language of rights, the Responsibility to Protect instead insists that sovereign states have a primary responsibility to protect their populations from genocide, ethnic cleansing, crimes against humanity, and war crimes. Where states manifestly fail to protect their citizens from * 1
2
Associate Editor, EJIL. Email: white@exchange. law.nyu.edu. For instance, Beitz in ‘Justice and International Relations’, 4 Philosophy and Public Affairs (1975) 360 accepts that military intervention is necessary in the face of mass atrocity and extrapolates this finding to argue for global distributive justice. The notion of a ‘responsibility to protect’ was first proposed by the International Commission on Intervention in State Sovereignty in 2001 and subsequently adopted in a more circumscribed
EJIL (2009), Vol. 20 No. 3, 545–567
mass atrocity, the international community has a residual responsibility to do so. Anne Peters in ‘Humanity as the A and Ω of Sovereignty’ argues that a ‘reversal of the principal–agent relationship between the state and human beings’ (at 515) is occurring and the result is the humanization of the principle of sovereignty. The endorsement of R2P, for Peters, ‘ousted the principle of sovereignty from its position as a Letztbegründung (first principle) of international law’ (at 514). For Peters, the principle of humanity is now the foundation and telos of state sovereignty. This response suggests two critiques of Peters’ argument. Both concern political limitations to the principle of humanity in international law. The first concerns the theoretical justification for limiting intervention to clear instances of genocide and crimes
form by the UN in 2005. See International Commission on Intervention and State Sovereignty (ICISS), ‘The Responsibility to Protect’ (2001), available at: www.iciss.ca/pdf/CommissionReport.pdf; and UN Doc. A/RES/60/1, 15 Sept. 2005, at paras 138–139, available at: http:// daccessdds . un . org / doc / UNDOC / GEN / N05 / 487 / 60 / PDF / N0548760 . pdf ? OpenElement (‘R2P Documents’).