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RESPONSIBILITY TO PROTECT: A CHALLENGE TO CHINESE TRADITIONAL DIPLOMACY
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Zhu Wenqi
《China Legal Science》2013年1期
RESPONSIBILITY TO PROTECT: A CHALLENGE TO CHINESE TRADITIONAL DIPLOMACY

Zhu Wenqi

  【摘要】五项和平共处原则是中国外交政策的根本和基础。在对外关系以及国际关系中, 中国也历来主XXX坚持国际法上“不干涉内政原则”。然而, 针对世界上一些国家内部发生的大规模屠杀平民的犯罪行为, 加拿大“国家主权与干涉国际委员会”于2001年发表了关于国家保护责任的报告, 主张国际社会在一国发生大规模屠杀平民的犯罪行为时, 有权介入并予以制止。加拿大的报告一经提出, 就在世界范围内引起广泛的关注和讨论。对于其中强调的国家保护责任, 2005年世界首脑会议宣言及联合国安理会的决议都予以了肯定。当国际社会讨论该如何应对利比亚和叙利亚局势时, 也将履行国家保护责任作为讨论的基础和依据。不过, 由于保护责任涉及到使用武力和军事干涉, 因而完全有理由怀疑它会被用来作为干涉它国的借口。在现今国际关系中, 如何在坚持国际法上不干涉他国内政原则的同时、又能预防和制止一国针对平民的大规模屠杀, 这对中国的传统外交政策来说是一个挑战。

RESPONSIBILITY TO PROTECT: A CHALLENGE TO CHINESE TRADITIONAL DIPLOMACY
  TABLE OF CONTENTS

  I. THE CHINESE CONCEPT AND POSITION ON SOVEREIGNTY………………………99

  II. The EMERGING CONCEPTION AND LOGIC OF RESPONSIBILITY TO PROTECT ……………101

  III. The DEVELOPMENT OF RESPONSIBILITY TO PROTECT…………………………106

  IV. RESPONSIBILITY TO PROTECT IN THE LIBYAN AND SYRIAN CASES ……………………110

  RESPONSIBILITY TO PROTECT: A CHALLENGE TO CHINESE TRADITIONAL DIPLOMACY

  Zhu Wenqi

  The responsibility to protect (R2P) is the conceptual framework within which to consider international intervention to deal with the commission of mass-atrocity crimes. Emerging in 2001, R2P was quick to obtain international recognition. Its acceptance by the World Summit of political leaders in 2005, and later by the UN Security Council, have provided the foundation for its further elaboration in international relations. However, there are some serious concerns about this concept. The most controversial dimension has been the use of military force. China is afraid that this R2P may be used as a tool of political interference. The Libya and Syria cases have tested the viability and efficacy of the R2P framework, which, to a certain extent, challenges China's traditional emphasis on non-intervention in the domestic affairs of other states and non-use of military force.

  On July 19, 2012, more than a decade after the International Commission on Intervention and State Sovereignty (ICISS) worked out the doctrine of the responsibility to protect, the UN Security Council held a session on the Syrian matter to examine a document which “[e ]xpresses grave concern at the escalation of violence, and the failure of the parties, in particular the Syrian authorities, to implement the Envoy's six-point plan” and demanded that the Syrian authorities “cease troop movements towards population centers” and “cease all use of heavy weapons in such centers”.{1}This session was important because of the gravity of the Syrian situation, in which an armed conflict was underway with wide-spread violence, killings, and violations of human rights all over the country. Civilians, mainly women and children, became victims, just as in most cases of armed conflict. The international community was worried, and the Security Council was expected to take action. Prior to this session, the Security Council had tried twice to take action, but none was successful because of the negative votes from Russia and China, two permanent Members of the Security Council. Now, once again, the draft resolution put to vote on July 19, 2012, failed to be adopted, owing again to negative votes by China and Russia {2}

  A number of Members of the Council responded angrily to the vetoes by China and Russia. The Representative of the United Kingdom, for example, immediately took the floor after the vote and declared: “By exercising their veto today, Russia and China have failed in their responsibilities as permanent members of the Security Council to help resolve the crisis in Syria.”{3}In his eyes, the regime of Syria intensified its use of heavy weapons in population centers, including the use of artillery and helicopter gunships, and “[m]ore than 14, 000 innocent Syrians have been killed since Russia and China first vetoed our efforts to stem the violence in October 2011.”{4}the French Representative made a similar statement and believed that, “[i]t is clear that Russia merely wants to win time for the Syrian regime to crush the opposition.”{5}the sessions of the UN Security Council should not be a blame game. Every member of the Council has the right to make its own position based on the rules. This is the mechanism that the United Nations Charter is designed for. However, why did China vote against the draft resolution that claimed to protect civilians? What is the consideration behind the vote of blocking the action by the Security Council under Chapter VII of the UN Charter ? the answers to these questions are linked with the concept of the responsibility to protect and Chinese traditional diplomatic policies.

  I. The CHINESE CONCEPT AND POSITION ON SOVEREIGNTY

  Hesitation or resistance to accept the R2P is normally and primarily based on the concern of State sovereignty. The key elements of sovereignty as recognized since the Peace of Westphalia in 1648 are legal equality of nations, autonomy, and non-interference by other States.

  Since its founding in 1949, China has always taken sovereignty as the most fundamental principle of international law.{6}In 1954, Premier Zhou Enlai put forward as the State policy for China the five principles of peaceful-coexistence, namely: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other's internal affairs, equality and mutual benefit, and peaceful coexistence. These five principles of peaceful-coexistence are enshrined in the Preamble to the Constitution of China{7}and have laid down the foundation for Chinese diplomatic activities.

  The Chinese concept of international law has also insisted on respecting sovereignty, regarding it as the “very core of the Five Principles of Peaceful Coexistence”.{8}Prof. Zhou Gengsheng, a leading Chinese scholar and legal advisor in the Chinese Foreign Ministry, has had much influence in the legal education of international law in China- In his text-book International Law, which was the first valuable writing of its kind in the People's Republic of China as well as the only one in that field up to December 1981, a great part is devoted to the description of the Concept of Sovereignty and that of Basic Rights and Duties of States. In his book, he took the principle of sovereignty as being “sacred and inviolable”, and its preservation has been “The starting point and the center of all their activities”.{9}Another famous Chinese scholar, Prof. Wang Tieya, the former President of the Chinese Society of International Law and former Judge of International Criminal Tribunal for the Former Yugoslavia (ICTY), took the same view as Prof. Zhou. Prof. Wang regards sovereignty “as a basic attribute of statehood, [that] implies independence in relation to foreign countries and keeping the initiative in one's own hands in managing one's internal affairs.” For him, sovereignty “also implies that all states are equal and their relationship is not one between the ruler and the ruled.”{10}

  Therefore, sovereignty is one of the most fundamental principles of international law and international relations for China. “Independence” and “autonomy” are the two most important elements in Chinese foreign policy. “Independence” means that every state is permitted to decide for itself its international political, economic, social and cultural system and its domestic politics, as well as its foreign policy and its relations with other states. Autonomy, in general, is the “right to be let alone”.{11}China has always stressed political independence and autonomy in its diplomacy ever since its founding in 1949. For China, “non-intervention” is implied in the basic principles of sovereignty, of independence, and of autonomy. To safeguard these principles, international law includes some basic customary norms against “intervention” generally. To support its position, China often cites the international legal documents which have enshrined sovereignty and, more particularly, the principles of non-intervention and non-use of military force.{12}

  Prohibitions against intervention are indeed included in the major international legal instruments. In accordance with Article 2(4) of the United Nations Charter, “[a]11 Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independency of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Furthermore, Article 2(7) of the United Nations Charter provides that “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter, but this principle shall not prejudice the application of enforcement measures under Charter vii.”

  Accordingly, a state is sovereign and entitled in international law to exercise exclusive jurisdiction within its territorial borders. Other states have the corresponding duty not to intervene in the internal affairs of that sovereign state. If this duty is violated, the victim state has the right to defend its territorial integrity and political independence.

  The UN Declaration on Friendly Relation of 1970 repeats this principle and declares that “No State or group of states has the right to intervene directly, or indirectly, for any reason whatsoever in the international external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements are in violation of international law.”{13}

  Sovereignty signifies the capacity to make authoritative decisions with regard to the people and resources within the territory of the State. A condition of sovereignty of any state is a corresponding obligation to respect every other state's sovereignty. After World War II, the sovereign equality of states and the norm of non-intervention received its most emphatic affirmation from the newly independent states. In theory, every State would like to insist on the norm of non-intervention. But comparatively speaking, it is the weak and the small States that more favor this norm, taking it as an expression of their equality as well as a safeguard of their independence and autonomy.

  It is from that angle that one may find Chinese foreign policy easier to understand, as China gained independence through arduous struggle, and its road to sovereignty was not an easy one. In Wang Tieya's book, the Chinese mentality is described thus: “They know that only by upholding their sovereignty can they have genuine independence, protect all their legitimate rights and interests internationally on an equal basis, eliminate the remnants of imperialist and colonialist oppression and exploitation, and avoid having to suffer from them again.”{14}

  II. The EMERGING CONCEPTION AND LOGIC OF RESPONSIBILITY TO PROTECT

  The world is changing, and it is changing fast. When the United Nations was founded in 1945, it was “determined to save succeeding generations from the scourge of war”.{15}the wars it meant were those between or among the States. However, the overwhelming majority of today's armed conflicts are not international, but rather internal ones. For example, from Angola, Kosovo, Sierra Leone, Afghanistan, Chad, the Democratic Republic of Congo, Somalia, to Sudan and elsewhere, warfare in these countries has mainly consisted of internal armed conflict in which serious crimes of international law have occurred, and most victims have been innocent civilians.

  When the United Nations Charter addressed prohibitions against intervention, its express terms were not ready to embrace either humanitarian intervention or responsibility to protect. Article 2(4) of the United Nations Charter requests all States to “refrain in their international relations from the threat or use of force” against another Slate, but with only two exceptions. First, Chapter VII of the Charter empowers the Security Council to authorize the use of force in response to threats and breaches of international peace and security. Pursuant to Article 39, the Security Council may make recommendations as to what measures, including the use of armed force, should be taken to address an identified threat to international peace and security or to any act of aggression. Secondly, in accordance with Article 51, the UN Member States may take measures, whether individually or collectively, in pursuit. of their inherent right of self-defense should they be subject to armed attack.

  The United Nations is mandated to promote and protect human rights. It reaffirmed a fundamental faith in human rights but did not do much to protect them. Art 2(7) of the Charter prohibits intervention in matters which are essentially within the jurisdiction of any State. Therefore, the United Nations was reluctant to address directly human rights violations in some member states. Despite the mass atrocities that occurred in Rwanda in 1994, for example, the United Nations did not react. But gradually, it began to be accepted that, even if the state sovereignty remains as an important principle of international law, individuals' rights must be respected and protected

  The United Nations Charter actually speaks of two important notions of responsibility. By determining “to save succeeding generations from the scourge of war”, the United Nations expresses its fundamental principles of member States, sovereignty to maintain international peace and security. But by referring to “We the people of the United Nations”, the United Nations clearly indicates its equally compelling mission to promote the interests and welfare of people within those states. Two responsibilities: one vesting in the state, and the other in the people and in individuals. This R2P approach reflects the ever-increasing commitment of the United Nations in fulfilling its mandate in international relations.

  With the dilemma in the conceptual language of the UN Charter, in spite of the fact that the issue of intervention, especially military intervention, is regarded as the most controversial of all international relations issues, some States started to talk about a “right of humanitarian intervention”, according to which a State may have the right to intervene in another State when gross violations of human rights are occurring and when that State in which the violations are occurring is unable or unwilling to act. However, this so-called “right of humanitarian intervention” has been very controversial both when it has been used and when it has gone unutilized

  The outcome of R2P has reflected the dismay of the international community at its failure to prevent some very serious mass atrocities, such as that in Rwanda in 1994. From the 6th April to the end of July of 1994, in just about 100 days, between 800, 000 and 1 million innocent men, women and children were massacred due to ethnic strife.{16}But before that happened, the United Nations Secretariat and some permanent members of the Security Council knew that some officials in the Rwandan Government were planning genocide. Moreover, UN forces were also present on ground in Rwanda. But the Security Council refused to take the necessary action to prevent the genocide. The Reports presented to the UN Security Council revealed that genocide and other systematic, widespread and flagrant violations of international humanitarian law were committed during that period in Rwanda.{17}

  The Bosnian case is another case in which the United Nations failed to prevent the massacre of thousands of civilians who were seeking shelter in the UN “safe areas” in Srebrenica in 1995. This case, together with the Rwanda case, revealed inaction of the international community when atrocities occurred and had a major impact on the contemporary policy debate about necessity of intervention for the purpose of human protection. They raised the principle that intervention amounts to a promise to people in need.

  The Kosovo case, however, falls on the opposite side, in which intervention did take place. In 1998, when violence took place in Kosovo, the Security Council was seriously concerned with the situation and adopted three resolutions{18}in order to restore peace and security in that region. In these resolutions, the Security Council recognized the deteriorating humanitarian situation and considered the situation in Kosovo as constituting a threat to peace and security. It condemned the use of excessive force by Serbian police, imposed an armed embargo, and expressed support for a political solution based on the territorial integrity of the FRY with greater autonomy for the Kosovar Albanians. It also declared that it would consider further action and additional measures to maintain or restore peace and stability in the region should Serbia not comply with the terms of the agreement reached with NATO and the OSCE to end the hostilities. However, these resolutions did not seem to produce any effect, as the violence and serious violation of humanitarian law were continuing. Then, for the purpose of protecting the Kosovar civilians (Albanians) from violence and ethnic cleansing at the hands of Serbian forces, NATO conducted some thousands of bombing raids on Kosovo and surrounding areas m May, June, and July of 1999.

  NATO's military strike brought the controversial question of legality of humanitarian intervention to its most intense heat. Could military intervention be justified if it was carried out in the territory of a particular sovereign State when gross violations of human rights were occurring and when that State seemed to be unable or unwilling to protect its own people? This question is very controversial. If the answer is YES, what of the principles of non-intervention and non-use of force which have been laid down in the United Nations Charter ? But if NO, then how can effective protection of human rights, which is also one of the purposes and objectives of the United Nations, be achieved?

  In regard to this dilemma and the reality of international relations, there are many controversial arguments and explanations. Mr. Kofi Annan stated as follows: “To those for whom the greatest threat to the future of the international order is the use of force in the absence of a Security Council mandate, one might ask... in the context of Rwanda if in those dark days and hours leading up to the genocide a coalition of states had been prepared to act in defense of the Tutsi population, but did not receive prompt Security Council authorization should such a coalition have stood aside and allowed the horror to unfold?”

  To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law, one might ask: is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide 'who might invoke these precedents, and in what circumstances?”{19}

  The United Nations Security Council is an organization dedicated to the maintenance of international peace and security. Mr. Kofi Annan believed that the core challenge to the Council in the 21st century was: “to forge unity behind the principle that massive and systematic violations of human rights-wherever they may take place-should not be allowed to stand”{20}the Security Council must be able to agree on effective action to defend fundamental human rights.

  In order to answer the question “when, if ever, it is appropriate for states to take coercive-and in particular military-action”, the Canadian Government took initiative by forming an international panel of experts, the International Commission on Intervention and State Sovereignty (ICISS), to address the “right of humanitarian intervention”. After consulting widely with governments, non-governmental organizations, inter-governmental organization and universities, etc., the Commission produced its final report, namely the Responsibility to Protect.{21}

  In the Report, the ICISS proposed, as its basic principles, that State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the State itself. But 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 non-intervention yields to the international responsibility to protect.{22}

  The R2P entails a threefold responsibility on the part of states to prevent, react and rebuild when confronted with mass atrocities, namely:(1) the responsibility to prevent: which is, to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk;(2) the responsibility to react: which is, to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention; and (3) the responsibility to rebuild: which is, to provide, particularly after a military intervention, full assistance with recovery, reconstructing and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.{23}

  This three-fold responsibility could be discharged in many ways, including education, diplomacy and sanctions, and the pursuit of international justice. Use of force, if authorized by the international community, should always be the last resort.{24}

  There is no doubt that military intervention is the most controversial element in the R2P. By the precautionary principle, military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded. The UN Security Council is an organization dedicated to the maintenance of international peace and security. There is no better or more appropriate body than the Security Council to authorize military intervention for human protection purposes. Security Council authorization should in all cases be sought prior to any military intervention action being carried out.

  The Report tries to distinguish the R2P from “intervention for human protection.” the ICISS is of the view that, firstly, R2P implies an evaluation of issues from the point of view of those seeking or needing support, rather than those who may be considering intervention; secondly, the R2P acknowledges that the primary responsibility in this regard rests with the State concerned, and that it is only if the State is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, that it becomes the responsibility of the international community to act in its place; and thirdly, the R2P means not just the “responsibility to react”, but the “responsibility to prevent” and the “responsibility to rebuild” as well.{25}

  Although the ICISS's report presented the UN Security Council as the most appropriate organ for authorizing military action for civilian protection purpose, it also suggested that the UN General Assembly, and regional organizations, might be alternative institutions for authorizing the use of force if the Security Council was deadlocked

  III. The DEVELOPMENT OF RESPONSIBILITY TO PROTECT

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