The responsibility to protect and the decline of sovereignty: free speech protection under international law.

• Author: Magnuson, William

ABSTRACT

State sovereignty has long held a revered post in international law, but it received a blow in the aftermath of World War II, when the world realized the full extent of atrocities perpetrated by the Nazis on their own citizens. In the postwar period, the idea that individuals possessed rights independent of their own states gained a foothold in world discussions, and a proliferation of human rights treaties guaranteeing fundamental rights followed. These rights were, for the most part, unenforceable, though, and in the 1990s, a number of humanitarian catastrophes (in Kosovo, Rwanda, and Somalia) galvanized the international community to develop a doctrine to protect the fundamental rights of all individuals. The resulting "responsibility to protect" individuals from genocide, ethnic cleansing, and crimes against humanity stood as a radical rejection of the prewar concept of state sovereignty and assured that states could no longer hide behind the shield of territorial integrity. But the doctrine created another disconnect in international law: it picked out only a few fundamental rights for protection, leaving citizens to rely on the whim of their states to protect their other rights. This Article argues that this state of the law is no longer sustainable, as it is still beholden in important ways to the now-eroded concept of state sovereignty. The responsibility to protect should be expanded to include protection, of fundamental rights in general and the freedom of speech in particular. The inclusion of the freedom of expression in the pantheon of protected rights is broadly consistent with the moral, legal, and consequentialist arguments in favor of the international norm of responsibility to protect. Moreover, an expansive reading of the obligation to intervene, particularly in nontraditional ways, will increase the legitimacy of the international .system.

TABLE OF CONTENTS I. INTRODUCTION II. THE DEVELOPMENT OF A RESPONSIBILITY TO PROTECT A. From National Sovereignty to Human Rights B. Evolution of the Responsibility to Protect C. Free Speech and the Responsibility to Protect III. THE FREEDOM OF SPEECH IN INTERNATIONAL LAW A. Historical Origins B. International Instruments Concerning Free Speech 1. The Universal Declaration of Human Rights 2. The International Covenant on Civil and Political Rights 3. Convention for the Protection of Human Rights and Fundamental Freedoms 4. American Convention on Human Rights 5. African Charter on Human and Peoples' Rights C. The International Law on Free Speech as Expressed by International Treaties IV. THE RESPONSIBILITY TO PROTECT, SOVEREIGNTY, AND FREE SPEECH V. RATIONALES FOR THE RESPONSIBILITY TO PROTECT A. Moral Arguments for the Responsibility to Protect B. Legal Arguments for the Responsibility to Protect C. Consequentialist Arguments for a Responsibility to Protect VI. THE CASE FOR A RESPONSIBILITY TO PROTECT THE FREEDOM OF SPEECH A. Moral Arguments B. Legal Arguments C. Consequential Arguments VII. CRITICISMS A. Enforcement of the Responsibility to Protect Free Speech B. The Responsibility to Protect as a Pretext for War VIII. CONCLUSION I. INTRODUCTION

International law has long recognized the state as the primary--even sole--actor in international affairs, reserving to countries a number of powerful prerogatives such as the right to territorial integrity. (1) This important principle of international law, however, began to erode after the end of the Second World War, when the atrocities perpetrated by the Nazi regime upon its own citizens shocked the conscience of the entire world. (2) For the first time, the idea that international law should protect the rights of individuals started to gain traction in legal circles, leading to a proliferation of international human rights treaties in the postwar era. (3) These treaties guaranteed a widening array of fundamental human rights: life, liberty, freedom from torture, freedom of speech, and many others. (4) But this development led to a contradiction in the international legal regime: suddenly, individual rights ascended to the level of international law, but the long-held principles of inviolable state sovereignty remained. Treaties promised certain rights to individuals, but at the same time, states were granted sole control over their internal matters. (5) There was little or no way to enforce the provisions of the human rights treaties on recalcitrant states.

All this changed in the 1990s after a series of humanitarian disasters in far-flung parts of the world such as Kosovo, Rwanda, and Somalia. The world community recognized that there existed a moral duty to intervene to prevent the massacre of minority populations in these countries, but the contemporary legal framework forbade any intervention in the "internal" matters of states. (6) As long as states persecuted only their own citizens, there was little that other states could do legally to stop the violence. In some cases, such as Kosovo, the international community did intervene, leading to fierce debates about the legality of bombing campaigns. (7) These debates created pressure on the United Nations (UN) and the world's powers to establish a new legal norm--one allowing for humanitarian intervention in certain limited situations. This pressure, in turn, led to the formation of the doctrine of a responsibility to protect. (8) The rule held that individual states have a responsibility to protect their citizens from genocide, ethnic cleansing, or other large-scale loss of life, and if a country were unable or unwilling to do so, the responsibility would fall upon the broader community of states. (9) The use of military force to protect citizens from such catastrophic harms would be permitted. (10)

That is where the norm stands today. But the establishment of a responsibility to protect under international law has led to yet another contradiction. The fundamental problem with the pre-World War II legal regime was that it acknowledged state sovereignty as inviolable, leaving individual citizens at the whim of their governments. (11) The concept of international law's peculiar nation-to-nation character--giving the state the principal role in global relations--was crucial to the pre-World War II era. (12) This logic, however, became unsustainable after World War II when the extent of Nazi atrocities became known. (13) It was this development that paved the way for the creation of the responsibility to protect doctrine. And yet, that same pre-World War II logic prevails in international law's treatment of other fundamental rights such as the freedom of speech. (14) So the freedom of speech, although guaranteed by a number of important international treaties, is still considered an internal matter. (15) The international community has no responsibility to protect the freedom of expression, and indeed, states may invoke the principle of nonintervention when confronted with criticisms of the suppression of speech inside their borders. (16) Under the current understanding of the international law of free speech then, the state has exclusive control over its territory and people, a position darkly reminiscent of the pre-World War II era.

But a world that demands respect for human rights cannot coexist with a world that demands absolute respect for state sovereignty. The dominant theory of the post-World War II era is that the nonintervention principle is legitimately subject to certain exceptions because states have obligations to their citizens. (17) What is not adequately understood today, but what is undeniably valid, is that this logic applies equally to both interventions to protect populations from widespread violations of their right to free expression and interventions to protect populations from genocide. Here, as elsewhere, human rights treaties have guaranteed to all individuals certain rights--rights that now form part of the nucleus of international law. The respect for state sovereignty cannot trump these rights any more in the area of free speech than in the area of genocide.

This is not to argue that violations of free speech rights should warrant military invasion. Indeed, such a proposition might even weaken, rather than strengthen, the legitimacy of the international system. Instead, nontraditional forms of intervention would, in most cases, provide a more acceptable form of protecting the freedom of speech from infringement. The proactive use of technologies--such as the internet, radio, and television--is just one example of potential forms of intervention.

This Article explores these assertions about the proper role of international law in the protection of the freedom of expression. Part II provides a brief history of the development of the doctrine of a responsibility to protect from the end of the Second World War to today. Part III examines the relevant documents elaborating what exactly the freedom of speech protects in international law. Part IV describes the interaction between sovereignty and free speech. Part V briefly surveys the major arguments (moral, legal, and consequential) in favor of the current responsibility to protect rule, and Part VI applies these arguments to a more expansive view of the responsibility to protect that includes protection of free speech. Part VII addresses potential criticisms of this argument, particularly those relating to its practicality and the use of humanitarian intervention as a pretext for war.

2. THE DEVELOPMENT OF A RESPONSIBILITY TO PROTECT

   1. From National Sovereignty to Human Rights

      The development of the concept of a responsibility to protect came as a logical outgrowth of a larger trend in international legal doctrine under which individuals increasingly became a subject of and an actor in international law. For hundreds of years, states acted as the sole participants in international law: only states created international law and only they were subject to it...