The rise of responsibility in world politics 9781108867047, 9781108490948
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English Pages 274 [298] Year 2020
The rise of responsibility in world politics / Antje Vetterlein and Hannes Hansen-Magnusson --
Twisting sovereignty : security and human rights in the "invention" and promotion of the responsibility to protect / Benjamin de Carvalho --
Negotiating responsibility in conventional weapons disarmament / Adam Bower --
"Coalitions of the willing" and the shared responsibility to protect / Toni Erskine --
Global environmental responsibility in international society / Robert Falkner --
Common but differentiated responsibilities and justice : broadening the notion of responsibility in international law / Virginie Barral --
Responsibility and climate change : reframing norms, practices, and community / Helga Haflidadottir and Anthony F. Lang, Jr. --
The rise of corporate social responsibility as a global norm informing the practices of economic actors / Hevina S. Dashwood --
An expanding conception of social responsibility? : of global norms and changing corporate perceptions / Kelly Kollmann and Alvise Favotto --
Can corporations be held "responsible"? / Grahame F. Thompson --
Responsibility and virtue ethics : how to tackle ethical dilemmas in world politics? / Hannes Hansen-Magnusson and Antje Vetterlein.
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THE RISE OF RESPONSIBILITY IN WORLD POLITICS
The concept of responsibility has emerged as central to the study of international politics. This book explores the integral role of responsibility within the context of global crises such as the responsibility to address climate change, manage financial crises, and intervene with political conflicts. Hansen-Magnusson and Vetterlein address responsibility as a conceptual tool in its own right, existing at the intersection of accountability and legitimacy and spanning across governance sectors of security, the environment, and business. This practicebased approach to the study of responsibility maps similarities and differences across policy fields and reveals the diverse moral actors responsible for negotiating responsibility. The emergence of responsibility further implicates underlying moral values and policymaking within the context of global politics. The Rise of Responsibility in World Politics addresses not only individual agency, but also how questions of community play a role in broader negotiations around the meaning of responsibility. - is Senior Lecturer in International Relations at Cardiff University. He was awarded an Early Career Fellowship by the British International Studies Association to conduct research on diplomacy in the Arctic Council. is Professor of Global Governance at University of Mu¨nster, as well as Associate Professor at Copenhagen Business School and co-editor of Owning Development: Creating Policy Norms in the IMF and the World Bank (Cambridge University Press, ).
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THE RISE OF RESPONSIBILITY IN WORLD POLITICS HANNES HANSEN-MAGNUSSON University of Cardiff
ANTJE VETTERLEIN Copenhagen Business School and University of Mu¨nster
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University Printing House, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Anson Road, #-/, Singapore Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data : Vetterlein, Antje, editor. | Hansen-Magnusson, Hannes, - editor. : The rise of responsibility in world politics / edited by Antje Vetterlein, Hannes Hansen-Magnusson. : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, . | Includes bibliographical references and index. : (print) | (ebook) | (hardback) | (paperback) | (epub) : : International relations–Moral and ethical aspects. | Political ethics. | Responsibility to protect (International law) | Environmental responsibility. | Social responsibility of business : . (print) | (ebook) | /.–dc LC record available at https://lccn.loc.gov/ LC ebook record available at https://lccn.loc.gov/ ---- Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
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THE RISE OF RESPONSIBILITY IN WORLD POLITICS
The concept of responsibility has emerged as central to the study of international politics. This book explores the integral role of responsibility within the context of global crises such as the responsibility to address climate change, manage financial crises, and intervene with political conflicts. Hansen-Magnusson and Vetterlein address responsibility as a conceptual tool in its own right, existing at the intersection of accountability and legitimacy and spanning across governance sectors of security, the environment, and business. This practicebased approach to the study of responsibility maps similarities and differences across policy fields and reveals the diverse moral actors responsible for negotiating responsibility. The emergence of responsibility further implicates underlying moral values and policymaking within the context of global politics. The Rise of Responsibility in World Politics addresses not only individual agency, but also how questions of community play a role in broader negotiations around the meaning of responsibility. - is Senior Lecturer in International Relations at Cardiff University. He was awarded an Early Career Fellowship by the British International Studies Association to conduct research on diplomacy in the Arctic Council. is Professor of Global Governance at University of Mu¨nster, as well as Associate Professor at Copenhagen Business School and co-editor of Owning Development: Creating Policy Norms in the IMF and the World Bank (Cambridge University Press, ).
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THE RISE OF RESPONSIBILITY IN WORLD POLITICS HANNES HANSEN-MAGNUSSON University of Cardiff
ANTJE VETTERLEIN Copenhagen Business School and University of Mu¨nster
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University Printing House, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Anson Road, #-/, Singapore Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data : Vetterlein, Antje, editor. | Hansen-Magnusson, Hannes, - editor. : The rise of responsibility in world politics / edited by Antje Vetterlein, Hannes Hansen-Magnusson. : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, . | Includes bibliographical references and index. : (print) | (ebook) | (hardback) | (paperback) | (epub) : : International relations–Moral and ethical aspects. | Political ethics. | Responsibility to protect (International law) | Environmental responsibility. | Social responsibility of business : . (print) | (ebook) | /.–dc LC record available at https://lccn.loc.gov/ LC ebook record available at https://lccn.loc.gov/ ---- Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
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THE RISE OF RESPONSIBILITY IN WORLD POLITICS
The concept of responsibility has emerged as central to the study of international politics. This book explores the integral role of responsibility within the context of global crises such as the responsibility to address climate change, manage financial crises, and intervene with political conflicts. Hansen-Magnusson and Vetterlein address responsibility as a conceptual tool in its own right, existing at the intersection of accountability and legitimacy and spanning across governance sectors of security, the environment, and business. This practicebased approach to the study of responsibility maps similarities and differences across policy fields and reveals the diverse moral actors responsible for negotiating responsibility. The emergence of responsibility further implicates underlying moral values and policymaking within the context of global politics. The Rise of Responsibility in World Politics addresses not only individual agency, but also how questions of community play a role in broader negotiations around the meaning of responsibility. - is Senior Lecturer in International Relations at Cardiff University. He was awarded an Early Career Fellowship by the British International Studies Association to conduct research on diplomacy in the Arctic Council. is Professor of Global Governance at University of Mu¨nster, as well as Associate Professor at Copenhagen Business School and co-editor of Owning Development: Creating Policy Norms in the IMF and the World Bank (Cambridge University Press, ).
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THE RISE OF RESPONSIBILITY IN WORLD POLITICS HANNES HANSEN-MAGNUSSON University of Cardiff
ANTJE VETTERLEIN Copenhagen Business School and University of Mu¨nster
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University Printing House, Cambridge , United Kingdom One Liberty Plaza, th Floor, New York, , USA Williamstown Road, Port Melbourne, , Australia –, rd Floor, Plot , Splendor Forum, Jasola District Centre, New Delhi – , India Anson Road, #-/, Singapore Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/ : ./ © Cambridge University Press This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data : Vetterlein, Antje, editor. | Hansen-Magnusson, Hannes, - editor. : The rise of responsibility in world politics / edited by Antje Vetterlein, Hannes Hansen-Magnusson. : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, . | Includes bibliographical references and index. : (print) | (ebook) | (hardback) | (paperback) | (epub) : : International relations–Moral and ethical aspects. | Political ethics. | Responsibility to protect (International law) | Environmental responsibility. | Social responsibility of business : . (print) | (ebook) | /.–dc LC record available at https://lccn.loc.gov/ LC ebook record available at https://lccn.loc.gov/ ---- Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
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Contents
List of Tables List of Contributors Acknowledgements List of Abbreviations
page vii viii x xiii
The Rise of Responsibility in World Politics Antje Vetterlein and Hannes Hansen-Magnusson
Twisting Sovereignty: Security, Human Rights, and the Responsibility to Protect
Benjamin de Carvalho
Negotiating Responsibility in Conventional Weapons Disarmament
Adam Bower
‘Coalitions of the Willing’ and the Shared Responsibility to Protect
Toni Erskine
Global Environmental Responsibility in International Society
Robert Falkner
v
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Contents
vi
Common but Differentiated Responsibilities and Justice: Broadening the Notion of Responsibility in International Law Virginie Barral
Responsibility and Climate Change: Reframing Norms, Practices, and Community
Helga Haflidadottir and Anthony F Lang, Jr
The Rise of Corporate Social Responsibility as a Global Norm Informing the Practices of Economic Actors Hevina S Dashwood
An Expanding Conception of Social Responsibility? Of Global Norms and Changing Corporate Perceptions
Alvise Favotto and Kelly Kollman
Can Corporations Be Held ‘Responsible’?
Grahame F Thompson
Responsibility and Virtue Ethics: How to Tackle Ethical Dilemmas in World Politics?
Hannes Hansen-Magnusson and Antje Vetterlein
Bibliography Index
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Tables
. Conceptual dimensions: Accountability and responsibility compared . Coding structure . Theme coverage all firms (%) over time . Theme coverage (%), by US and German firms over time
vii
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Contributors
is Lecturer in the Law Department at Goldsmiths, University of London. is Co-Director of the Centre for Global Constitutionalism and Lecturer in the School of International Relations at the University of St. Andrews. is Senior Research Fellow at the Norwegian Institute of International Affairs. is Professor in the Department of Political Science at Brock University, Canada. is Professor of International Politics and Director of the Coral Bell School of Asia Pacific Affairs at the Australian National University (ANU). is Associate Professor in the Department of International Relations and Research Director of the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science. is Lecturer in the Adam Smith Business School at the University of Glasgow. - is Senior Lecturer in the School of Law and Politics at Cardiff University. is Researcher in the School of International Relations at the University of St. Andrews. is Senior Lecturer in the School of Social and Political Sciences at the University of Glasgow.
viii
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List of Contributors
ix
, is Director of the Centre for Global Constitutionalism and Professor in the School of International Relations at the University of St. Andrews. is Emeritus Professor of Political Economy in the Faculty of Arts and Social Sciences at The Open University. is Professor of Global Governance in the Department of Political Science at University of Mu¨nster and Associate Professor in the Department of Organization at Copenhagen Business School.
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Acknowledgements
This book is the result of our curiosity to study the increased reference to the concept of responsibility in world politics. Working in different governance fields, our interest in this topic grew out of a number of discussions that revealed similar developments despite thematically distinctive contexts such as development aid, the role of business in society, or environmental challenges. We were surprised by the noteworthy parallels in the ways in which responsibility is referred to in political debates, specifically that it is mainly used when governance by regulation proves difficult either because there is no majority or sufficient political will to adopt new or refine regulations or because situations are too fragmented and complex to easily identify answerable actors and allocate responsibility. In such situations, the morality of actors is called upon as the example of corporate social responsibility signifies. Often, responsibility policy norms came about as a compromise, a guiding rule, that is legally not binding yet morally powerful, as the case of the responsibility to protect shows. These observations, we are convinced, were worth investigating further. And hence the book sets out to explore the rise of responsibility in three different policy areas: security, environmental, and business governance with the aim to advance new research and shed light on the currency of the concept of responsibility for International Relations theory. To do so, we brought together a group of renowned scholars at the ISA Convention in New Orleans, funded by the ISA Venture Workshop Grant, who – all with their different disciplinary viewpoints – examined the role of the concept of responsibility in their respective issue area. Conversations continued after this initial event with the same and also additional colleagues engaged in work on the concept of responsibility, for instance at an ISA Roundtable in Atlanta in ; at the ECPR x
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Acknowledgements
xi
Joint Sessions in Pisa; in many conference panels organised by us as EISA section chairs in Barcelona () and Prague (); and at BISA conferences in Brighton () and Bath () as well as an EISA Workshop run by us in Cardiff in . This is now the first product of those discussions and more will follow. Like any other project, the outcome is collaborative and only possible because of the work of many great minds, discussions and debates, feedback and criticism, and thus, the effort of many people. We would first and foremost like to thank all our contributors, not only for their work of writing and revising their chapters but also for giving feedback on the theoretical framework of this book and, not least, for their patience in the long process of receiving comments from the editors as well as during two rounds of reviews. They have produced an excellent piece of work. We would further like to thank Kirsten Ainley, Kathryn Hochstettler, and Antje Wiener who all provided extensive and helpful comments on the papers presented in the ISA workshop. Steven Bernstein, Patrick Th. Jackson, Markus Kornprobst, and Ned Lebow have discussed in particular the theoretical framework of the book at later stages and we are grateful for their support. We learned a lot from these interactions as well as from the participants in the subsequent panels, roundtables, and sections that we organised since then. Getting the chance to discuss responsibility with contributors to this volume as well as many other colleagues who share an interest in the issue helped us sharpen the framework and led to follow-up projects. Many thanks also to our editor at Cambridge University Press, John Haslam, as well as two anonymous reviewers. Their comments were supportive and important in binding together the insights we obtained from our contributors’ chapters. The volume is much stronger thanks to their valuable remarks. We would also like to thank colleagues in our departments at Copenhagen, Mu¨nster, Hamburg, and Cardiff for feedback and encouragement during early and later stages of our work on the book. Special thanks go to Joachim Delventhal (Copenhagen Business School) for his critical eye on the final draft of the introduction. Antje would further like to thank Kathryn Sikkink for discussing an early draft of the introduction to this book as well as staff and fellow visiting scholars at the Minda de Gunzburg Center for European Studies at Harvard University, which hosted her for
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xii
Acknowledgements
one year when most of the creative work for this project was conducted. She is particularly grateful to Tolga Bölu¨kbaşı, Sebastian Koos, and Christine Zabel for their input and comments on the initial ideas of this book and much more. Finally, organising workshops, travelling, and the irregular working hours of academia would not have been possible without the support and patience of our families, which is why we dedicate this volume to Selma, Eni, Piet, and Jonna.
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Abbreviations
AP mines APII BPP CBDR CCCTB CCW CEO CITES CLRTAP COP CSR ECOSOC EMS ETI EU FDI FLA FSC G GATT GCC GRI HLP ICBL ICISS
anti-personnel mines Amended Protocol II to the Convention on Certain Conventional Weapons Beneficiary Pays Principle Common but Differentiated Responsibilities Common Consolidated Corporate Tax Base Convention on Certain Conventional Weapons chief executive officer Convention on International Trade in Endangered Species Convention on Long-Range Transboundary Air Pollution Conference of Parties corporate social responsibility Economic and Social Affairs Committee (of the United Nations) Environmental Management Systems Ethical Trading Initiative European Union foreign direct investment Fair Labor Association Forest Stewardship Council Group of ; group of states within the UN to promote economic development Global Agreement on Trade and Tariffs global corporate citizens Global Reporting Initiative High-Level Panel on Threats, Challenges and Change; implemented by UN Secretary-General Annan International Campaign to Ban Landmines International Commission on Intervention and State Sovereignty xiii
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xiv ICRC ICRW IDPs IFC IFIs IHL ILO IOPN IR ISEAL ISO ITLOS IUCN IWC MBT MNCs MSF NAM NATO NEPA NGO NIEO NPS OAU ODS OECD OHCHR POC PPP RP/RtoP RSPCA SAI SRSG TNCs UK UN
List of Abbreviations International Committee of the Red Cross International Convention for the Regulation of Whaling internally displaced persons International Finance Corporation international financial institutions International Humanitarian Law International Labour Organization International Office for the Protection of Nature the academic discipline of International Relations International Social and Environmental Accreditation and Labelling Alliance International Organization for Standardization International Tribunal for the Law of the Sea International Union for Conservation of Nature International Whaling Commission Mine Ban Treaty (of ) multinational corporations Médecins sans Frontières Non-Aligned Movement (of states in the context of the UN) North Atlantic Treaty Organization National Environmental Policy Act non-governmental organisation New International Economic Order non-Party stakeholders (in the context of UNFCCC) Organization of African Unity ozone-depleting substances Organisation for Economics Co-operation and Development Office of the United Nations High Commissioner for Human Rights Protection of Civilians agenda Polluter Pays Principle Responsibility to Protect Royal Society for the Prevention of Cruelty to Animals Social Accountability International Special Representative of the Secretary-General transnational corporations United Kingdom United Nations
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List of Abbreviations UNCED UNCLOS UNEP UNESCO UNFCCC UNGP UNSC UNSC/ RES UNSG US EPA US/USA VP WTO
xv
United Nations Conference on Environment and Development United Nations Convention on the Law of the Sea United Nations Environmental Programme United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change United Nations Guiding Principles (for businesses) United Nations Security Council United Nations Security Council Resolution United Nations Secretary-General United States Environmental Protection Agency United States of America Voluntary Principles on Security and Human Rights World Trade Organization
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Introduction
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The Rise of Responsibility in World Politics Antje Vetterlein and Hannes Hansen-Magnusson
. Introduction Responsibility has become a recent focal point in international politics. Most visibly, we observe distinct policy fields where responsibility has materialised in specific policy norms, such as the common but differentiated responsibility, the responsibility to protect, or corporate social responsibility. Yet, even beyond such explicit translations of responsibility into policy, the issue of responsibility in world politics enjoys increased attention in times of global crises. Who takes or is assigned responsibility for climate change for instance? Under what conditions should the international community take responsibility and intervene in political conflicts? Or which actors should be held responsible for the financial crisis? Questions like these highlight the importance of underlying moral values of global politics and are not just a matter of compliance, incentives, and sanctions (see e.g. Bianculli et al. ). IR scholarship has begun to pick up on these issues and work has emerged that investigates responsibility empirically (Lang ; Loke ), and theoretically (Erskine ; Frost ; Hoover ; Mills and Karp ; Beardsworth ; Gaskarth ), and draws on other disciplines such as political theory and global ethics or international law (Nollkaemper ; Zu¨rn et al. ; Weller ). The increased importance of responsibility has become a central theme in international politics, but its rise and actual instantiation is still poorly understood. This book attempts to address this mismatch by offering a practicebased approach to study responsibility. Instead of remaining in one policy field, we address the issue of responsibility as a cross-cutting theme, covering security, the environment, and business with the objective of mapping similarities and differences across different policy fields. Building on the conceptual discussion of this chapter, we contend that the analyses that follow allow us to draw broader conclusions about the reference to
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responsibility in world politics, its origins, workings, and implications. While this is not meant to be a positivist comparative study, by focusing on policy fields in which responsibility has already assumed considerable prominence, we will provide answers to the analysis of international politics more generally. This comprehensive perspective across three – admittedly non-exhaustive – policy fields allows us to identify common issues related to responsibility that appear in all of them. Locating the topic of responsibility in IR theory is not a simple task. Early works sought to open political interactions to a deeper debate about normative underpinnings and loosen assumptions that are held in conventional governance discussions of accountability (Grant and Keohane ). The discipline often works with a few underlying and accepted assumptions that would either overlook the concept of responsibility altogether or reduce it to mere interest-based compliance (Erskine : ; ). One of the main questions that needs to be tackled in this respect is about moral agents in IR. Erskine () for instance argues that IR is still too state-centric and ascribes too little agency to other collective actors such as NGOs and the like. Erskine () goes on to argue that, at the same time as states are perceived as purposive actors they are often seen as amoral. If moral agency is dealt with in IR, she notes, then it is still often ascribed to individual actors/persons. This is because moral agency of collective actors is not easy to deal with and triggers further questions, such as whether we can treat collective responsibility in analogy to individual responsibility and where responsibility should be located in often complex situations (ibid.). Or in other words, how can we address problems in world politics such as oil tank accidents, child labour, climate change, or genocides where there is often no immediate individual actor that can be held responsible? Theoretical debates surrounding these questions are useful and necessary and will be dealt with in single contributions to this volume explicitly and also more implicitly. Yet, in this book we allow for a broad perspective, where responsibility can be located at the individual (for instance with CEOs, see Chapter ) and collective level (see Chapter ), or within groups of collective actors (see Chapter ) as well as at the intersection of individuals and collective actors (Chapter ). Owing to this diversity of agency we argue that it is more important to focus on practices of responsibility. By this we mean the ways in which responsibility is enacted and instantiated by what actors do as well as say. Perceiving responsibility as going beyond accountability and the study of rightful behaviour (or norm compliance) not only allows us but requires us to grasp the ways in which
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The Rise of Responsibility in World Politics
agents – individual or collective – meaningfully interact and negotiate responsibility. Such an undertaking is necessary in order to understand what responsibility actually signifies, i.e. how this focal point of international politics is filled with content. Studying processes of negotiating responsibility consequently reveals the different moral values actors attach to it. The book thereby casts a wider net around responsibility in that it addresses not only agency but also questions of community as the site of contestation where agents negotiate the meaning of responsibility.
. The Concept of Responsibility in International Relations Theory Responsibility is a topic that has been addressed in IR as well as neighbouring disciplines, albeit not as a cross-cutting theme in the way in which this volume does. Discussions in IR as well as in the neighbouring disciplines of law, especially legal philosophy, and political theory highlight different ways in which responsibility matters as a point of reference. These discussions are useful for shedding light to the conceptual uses of responsibility. However, these discussions tend to focus on individual examples and isolated cases, often confined to one policy area such as the ‘responsibility to protect’. They cover less of an emergence of responsibility as a point of reference, which is what the contributions to this volume capture. That said, we cannot introduce the discussion of this volume without engaging the conceptual groundwork that has come before us. Responsibility is a fairly flexible term. In one of the most widely cited examples, HLA Hart’s treatment of responsibility through the example of a drunken captain who loses a ship serves as a reminder that the particular context in which it is evoked matters (Hart ). In particular Hart’s famous discussion highlights a number of different aspects of the ways in which responsibility can be evoked. First, there is the responsibility someone or something has for causing a particular outcome – a sunken ship, for instance. Second, responsibility can be attached to a particular (professional) role, such as being a captain. In this regard, responsibility is addressed in conjunction with a sense of obligation or duty. Legal responsibility, as a third aspect, refers to a range of possible procedures to evaluate causal and/or role responsibility against a given body of legal norms. As a fourth dimension, moral responsibility adds an additional psychological dimension as well as social norms to the ways in which responsibility may play out. These four dimensions do not form mutually exclusive categories, though, as some of them overlap. Scholars, such as Tony Honoré or Peter
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Cane, have therefore attempted to add clarification by providing more detailed discussions. Honoré, for instance, rejects Hart’s clear-cut distinction between different realms of responsibility (Honoré : ). For example, causing a particular event, what Honoré refers to as ‘outcome responsibility’, is linked to a wider set of capacities, which refer to the ability of someone as well as the broader social expectations of a person’s abilities. In other words, the particular case in which we can ask whether someone possesses the general capacity for action or whether there are circumstances that limit capacity, is embedded in a field of normativity, which is marked by the societal considerations of what an ‘average’ person should be capable of. For Honoré, these judgements are reflected in social and legal norms, which both reflect considerations of morality: if one is generally assumed capable of a particular action, then consequences of these actions, even if not intended, may be judged against social and legal standards; in the reverse scenario, those judged to have ‘diminished responsibility’ are not held to the same legal and moral consequences of responsibility (Honoré : ). The drunken captain is thus not responsible in a sequential sense – first in his role, then legally, and finally morally – but all at the same time, albeit with different emphases. Peter Cane () shares some of Honoré’s criticism towards Hart, but further highlights that responsibility is not only about sanctions and accountability for an unwanted outcome but also carries a proactive dimension. For this reason, Cane distinguishes historic from prospective responsibility (: –). In philosophy, existential questions are linked to the notion of causal or outcome responsibility because they touch on the very essence of agency, but they are also linked with normative questions. Jean-Paul Sartre, for instance, underscores how agency means being an author of events in the world, which provides a different take on the concept of author-ity (sic), on the one hand, while having to take responsibility for what happens, on the other (Sartre ). In his view, this means that even passive acceptance of evil, such as war, makes one complicit in the action – a line of thinking that Hannah Arendt elaborated in her account of political responsibility, which holds that membership in a community makes one complicit with the consequences of its doings (Arendt ). Similarly, David Miller has made the case that through neglecting to act and intervene despite holding appropriate capacity, i.e. the absence of causal or outcome responsibility, one may be subject to moral and legal responsibility nonetheless (Miller ; ). Possessing agency, it follows, comes at the price that one is subjected to moral standards, perhaps even
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The Rise of Responsibility in World Politics
legal considerations. In global politics, where international law is often less immediately binding on states than national, civil, or criminal law is for citizens, Toni Erskine has elaborated on similar scenarios with regard to individuals as well as collective actors (Erskine ; ). These multiple layers and overlaps are important but rarely discussed in parts of the global governance literature that focuses on ‘accountability’ as a form of legal responsibility. There exists a growing body of literature that focuses on this term (Grant and Keohane ; Biancuelli et al. ; da Conceição-Heldt ), but its emphasis is on institutional mechanisms and defined assessors (compare Lane : ) at the expense of further aspects of responsibility. However, as recent debates have shown, even matters of who bears responsibility for human rights are not straightforward to resolve with reference to legal obligations. While Thomas Pogge makes the point that states with sufficient capabilities have responsibilities to deliver human rights (Pogge ), Onora O’Neill, for instance, takes a pluralist position that seeks to devolve some obligations also to multinational corporations (MNCs) because some hold at least as much financial and other means as some states (O’Neill ). In this discussion of differentiated responsibilities of state and non-state actors in global politics, O’Neill’s work pre-empts the UN Guiding Principles on Business and Human Rights (Ruggie ), which contextualises the role of corporations in a set of broader social expectations. While calls for clarification on the accountability mechanisms regarding the role of corporations had been around for some time (De Schutter : –), the Guiding Principles specify the responsibility of companies to respect human rights and remedy potential wrongs, while reminding states of setting the frameworks to help protect the right in the first place. Similar to the Arendtian view that actors bear responsibility towards the community of which they are a part, O’Neill’s argument advocates holding those who can deliver particular outcomes to account, regardless of this being states or corporations, because assumptions about exclusively bad intentions of businesses are as misplaced as about selfish states, in her view (O’Neill : ff.). Overall, this perspective serves as a reminder of a richer approach to legal responsibility that does not exclusively focus on rules and regulations but also on issues of feasibility, as exemplified in the discussion of outcome responsibilities of powerful actors other than states. In the context of global politics, David Karp’s work on the responsibility of MNCs makes an elaborate case of why and for which reasons MNCs might hold responsibilities to protect and respect human rights (Karp ), arguing that it is not desirable to revert to universalist explanations devoid of context sensitivity.
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In this light, it is clear that the dimension of moral responsibility, that Hart viewed in isolation, is one that is present in all of the other fields, because they are not free of normative considerations. However, it is one that matters profoundly, not least because it may be drawn upon to pragmatically identify who should deliver a particular outcome. For David Miller, for instance, bearing moral responsibility is the first of six ways in which one could establish whose task it is to ensure justice of some kind (Miller : ff.). It revolves around the notion that someone’s action must have displayed a moral fault and led to a particular outcome, such as deliberate and reckless deprivation. Yet, moral responsibility is but one criterion of several that can be drawn upon to arrive at a verdict, the others being establishing outcome responsibility, causal responsibility, benefits, capacity, and community ties. In its pluralist search for pragmatic solutions, Miller’s work resonates with some IR theorists who also seek to address responsibility for ensuring a particular outcome. But it is not clear which states are primarily responsible for something, nor to whom. Similar to Miller, Toni Erskine, for instance, links capacity arguments to moral responsibility for humanitarian intervention (Erskine ). A middle ground is occupied by English School–inspired approaches which contend that powerful states bear a special and/or moral responsibility to uphold international order (Bull ; Bukovansky et al. ; Clark and Reus-Smit ; Daase et al. ; Gaskarth ) based on the mutual recognition of and bearing in mind the less capable states. However, arguments about the responsibility of powerful states have been used by advocates of ‘just war’ approaches as well as co-operation-oriented accounts (Waltz ; Keohane ) which emphasise the connections between states and their own citizens rather than a broader global community. The argument in this line of thought states that ‘a nation’s survival is its first and foremost responsibility; it cannot be compromised or put to risk’ (Kissinger : ). Others yet remind us that power, and thus a focus on capacity, is an illusive undertaking to begin with. Given the reality of international negotiations and interaction, which involves multiple actors, it is not always clear who exactly triggered a process and exerted their own influence over others (Ferguson ; Holden ). Following these considerations we can conclude that there is no straightforward answer to what responsibility is, as it contains moral as well as legal dimensions, while arguments can be made about who to assign responsibility to and on what basis. Before we propose our own practice-based approach to the study of responsibility, which would be most sensitive to
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The Rise of Responsibility in World Politics
context, we first of all show why such an approach is necessary as responsibility comprises more than the analysis of rule-based behaviour that is the focus in accountability studies.
. The Three Dimensions of Responsibility: Accountability, Morality and Ethics, and Relationality Responsibility does not only refer to being in charge of something that has happened – after the fact, as it were – but also means that actors conduct their actions following certain (moral) values and take on responsibility proactively. Responsibility further constructs a relationship between an actor – individual or collective – and other social units. That is to say, that how and for what actors take on responsibility is relational and thus shaped by the expectations of others in their environment. We can thus argue that responsibility, as a theoretical concept, exhibits the following three aspects, accountability, morality and ethics, and relationality. A comparison of responsibility with the more often used notion of accountability facilitates a better understanding of this argument. Accountability establishes a relationship between an accuser and the accused based on non-compliance with shared rules and regulations. This is based on the observation that someone caused an outcome/event and is thus not only backward looking but also fixed to this specific instance. Accountability is about monitoring and sanctioning and thus about correcting behaviour, which also means that accountability relations are characterised by power, understood as the power to be able to enforce rules and regulations on other actors vis-à-vis the power to avoid sanctions. Responsibility in contrast emphasises the proactive nature of taking on responsibility, not only for outcomes that one might not be accountable for but also related to tasks that lie in the future. Responsibility norms are not corrective but guiding principles that leave space for debate, also about the conditions under which what actor(s) possess the capability to take on responsibility. While capability and power often go together (see the aforementioned capacity argument of specific states with special responsibilities), they are actually distinct. One might be capable of taking on responsibility without having power and also have power without being able to act responsibly. Negotiating the capability to take on responsibility goes beyond a mere power game between enforcer and wrong-doer. This emphasises the relational dimension of responsibility, as it evokes the context in which such debates take place, or – as labelled in this book – the communities of responsibility.
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Table . Conceptual dimensions: Accountability and responsibility compared (adopted from Vetterlein : ) Dimensions
Accountability
Responsibility
Relationship Content Time Mode Authority
attribution to wrong-doer, sanction fixed, causation backward-looking corrective power
relational, dialogue broad, discretion future-oriented guiding capability
Responsibility embraces accountability, while accountability is a narrow understanding of responsibility relations. Or put differently, responsibility captures accountability relations too. Focussing only on accountability, a negative duty related to a causal attribution of responsibility for past action, would prevent us from appreciating the concept’s ability to tackle broader challenges in world politics. Erskine (Chapter in this volume) analyses the responsibility of global actors to take on humanitarian action in cases where the UNSC fails to act. To frame debates about legally correct but not legitimate outcomes of our regulatory system in terms of responsibility allows us to open up such questions for dialogue where arguments and justifications can be brought forward with the aim to search for alternative solutions. Similarly, Helga Haflidadottir and Anthony Lang’s chapter in this volume on environmental responsibility serves as another example where the notion of accountability would reach its limits (Chapter ). Responsibility here is about more general goals to be reached in the future. Such cases are characterised by dialogue and negotiation about what the aim should be, who would be able to take responsibility to reach these aims and on what basis (see Chapter ). Following these conceptual considerations, responsibility highlights – beyond accountability – two further dimensions, ethics and relationality. Taking responsibility based on individually held values of what is right or wrong evokes questions of moral agency (Erskine ; ) and ethics (Warner ). Responsibility further entails a relational component, as in responding (or ‘answering’) to claims requiring more responsible behaviour which highlights relations to other actors in the context in which responsibility is taken on. In order to capture the morality and relationality dimension of responsibility, we offer a framework based on two concepts, these are norms and community. First of all, we conceive of responsibility as a policy norm. Park and Vetterlein (: , emphasis in original) define
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The Rise of Responsibility in World Politics
policy norms ‘as shared expectations for all relevant actors within a community about what constitutes appropriate behaviour, which is encapsulated in . . . policy’. Usually such policy norms are informed by broader and more fundamental norms such as sustainability for CBDR for instance or human rights for RP. Following critical norms research in IR (Wiener ; ; ), we argue that while most actors can agree to, and in fact use fundamental norms such as human rights, democracy, or sustainability to justify actions or policies in political debates, their specific meanings are contested once they are supposed to be applied in practice. In order to grasp the meaning of the responsibility norm, we therefore redirect our analysis to the micro-level where actors negotiate, shape, and adopt or reject such norms based on different moral convictions or beliefs. We secondly contend that policy problems are not solved within traditional divides of the public or the private or mainly in a national context or rather internationally. Yet, we argue that communities of a variety of actors form themselves around policy issues and provide the space where the meaning of norms is negotiated and positions are justified. These arguments will be developed in the remaining sections of this introduction.
. Moral Agency, Policy Norms, and Communities of Responsibility Claiming, ascribing, or taking responsibility is inherently linked to two sets of interrelated questions, first about the ethics and moral values underlying such claims and attributions and secondly in turn about the group of actors, or the community, where the meaning and the content of such norms is negotiated. Yet, to raise issues about responsibility in world politics in this way, points at first to ‘questions of moral agency [which] are fundamental to the study of world politics [because] [w]ho—or what —can bear the related moral burdens of duty and blame for specific acts and outcomes has serious implications for practice and theory’ (Erskine : ). Erskine summarises, ‘a collectivity with a corporate identity (or an identity greater than the sum of identities of its constitutive parts), an identity over time, a decision-making structure, and an executive function that allows it to act on decisions might also be a moral agent’ (Erskine : ). Paradoxically, the inclusion of collective actors leads to logical questions about free will and individual agency, which is an inherent liberal perspective. As Kirsten Ainley discusses, these two positions may be incompatible: either causes that may be structural, psychological, biological, or theological can be made responsible for action, or
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‘human agents are genuinely free and capable of identifying, deliberating over and choosing between courses of action open to them – a Kantian position, following Kant’s explanation of the individual as an “uncaused cause”’ (Ainley : ). Ainley argues that the way around this discussion is to acknowledge the social construction of agency – a point that we pick up shortly where we argue that agency is always socially embedded. Also, Warner () addresses this question of the possibility of moral agency beyond the individual level. Drawing on Max Weber’s notions of an ‘ethic of responsibility’ and an ‘ethic of ultimate ends’, he points out that the realist and liberal extrapolation from the individual to the state level has implications for how responsibility can be theorised in IR. According to Warner (ibid.) the problem is the so-called domestic analogy (Suganami ). This analogy suggests that ‘as the individual is to the state, each state is to the society of states’ (Warner : ). Following this reasoning, the conceptualisation of responsibility ends up in a situation where a state follows its interests and/or moral values, just as Weber’s charismatic leader, and is only responsible to itself. No objective norm or value are theoretically possible in this scenario. Or, to put it with Warner: ‘Weber’s ethic of responsibility denies the importance of consequences and the possibility of objective norms’ (Warner : ). Responsibility is then left between the Kantian imperative and the will of a nation/state. States are immune against external pressures and free to steer domestic politics which in turn leads to – what Warner (: ff ) calls – Walzer’s paradox, i.e. a situation in which individual actors within a state are not protected beyond their own state. The alternative would be to conceive of a world community, where everyone is responsible for/to everyone else as in some of those global governance approaches just outlined. As Warner (ibid.) argues, this is not a viable way forward either since norms and moral values do not apply generally, or in his words, because ‘[o]ne cannot arbitrarily decide the parameters of the community of responsibility before deciding for what one is responsible’ (Warner : ). He then continues drawing on Fain () and the idea of a ‘task-theoretic normative community’. The idea is that an international political community has moral obligations because the global problems it faces demand co-operation. With global tasks come global responsibilities because some problems cannot be solved individually or by nation states alone. Such normative communities are formed around specific tasks. This means that once we depart from the idea of the liberal and autonomous individual/nation state the concept of community becomes crucial and then, as a consequence, the relationship
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The Rise of Responsibility in World Politics
between a community, the attribution or allocation of responsibility in that community, and specific global problems/tasks. This is to say that responsibility is situated in terms of specific (policy) problems. Following this argumentation, we therefore contend that a practice-based approach to responsibility, that starts from the identification of the specific community that forms around a policy problem, will help us to answer questions about responsibility in world politics. In order to do so, we introduce two analytical tools, norms and community, that help us to operationalise the approach. We consider responsibility to be a policy norm that has become a focal point in international politics over the recent decades. To perceive the three policies discussed in this volume as policy norms allows us to emphasise the fact that policies always relate to a broader set of values, which in turn allows us to highlight the normativity of responsibility. While the near-classical definition holds that ‘[n]orms are collective expectations about proper behaviour for a given identity’ (Jepperson et al. : ), we contend the positivist turn of sociological institutionalism that followed this definition. Siding with Warner’s discussion, post- it is not clear what kind of collective and what kind of identities international politics consists of. It would therefore be problematic to follow the binary logic of much of compliance-oriented research that asks whether a norm is implemented and/or followed or not (Finnemore and Sikkink ; Boerzel ; Raustiala and Slaughter ; Hansen-Magnusson et al. ). Rather, as critical constructivist approaches to norms have pointed out, it is interaction on the ground that matters most for pressing questions of world politics because norms do not exist independently from human instantiation. In fact, that scholarship has questioned whether norms are meaningful beyond the limits of the specific social community where they emerge. That is, the assumption that a particular norm entails a clearly defined meaning, that is universally valid, is questioned (Walker []; Reus-Smit ; Wiener ), and tested by pitching universalist meanings of fundamental norms against contingent interpretations that reflect particular normative structures of meaning-in-use (Weldes ; Milliken ) in selected contexts. Empirical research found out that when enacted outside the boundaries of stable social communities the implementation of fundamental norms was contested based on different meanings according to their respective social constitution. In other words, compliance with specific rules and regulations on the ground was contested (Wiener ; Liese ; Puetter and Wiener ; Venzke ;
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Geis et al. ; Park and Vetterlein ). It is thus possible to say that the norm of responsibility is brought to life through the involvement of actors that form communities around specific issue-areas. With ‘communities’ we mean ‘spaces of norm negotiation’ where the actors’ practices of justifying, taking care, naming, shaming, blaming etc. take place. These communities might form around physical locations, like a courtroom or a convention summit, or more broadly as a discursive arena that does not actually involve the immediate contact between actors. We therefore do not limit the locality of moral agency to either nation states or at the global or personal level, but allow for a variety of spaces where responsibility is negotiated and instantiated. What matters is the discursive interaction between actors as well as the practices through which responsibility is put into use. While this approach may seem to hold similarities with a ‘community of practice’ approach (Wenger ), we would like to caution against the manner in which it has become prominent in IR. Here, when talking about interaction around a specific issue area, researchers often refer to the idea of an epistemic community which forms around specific expertise (Adler and Haas ; Adler and Barnett ; Adler ). Additionally, practices are referred to as competent performances, which refer to patterns of meaningful action (Adler and Pouliot : ). In this account the potentially problematic boundaries of a community are not subject to discussion, nor are potential changes in practices a result of a learning process (Hansen-Magnusson ; Ringmar ). In this book however, the contributors do not begin the inquiry with assuming that, first, the meaning of responsibility is already given, and second, that certain communities pre-exist. In our understanding, responsibility is negotiated as a norm in communities that form around the practices of actors. This may result in a communal understanding but not to the extent that it results in a community of practice which is marked by a clear delimitation and within which the object of reference has become common sense, yet continues to evolve. As new actors may emerge and make claims towards the community, its boundaries are as much in flux as is the understanding of responsibility. In sum, introducing the two analytical tools, policy norms and community, allows us to address responsibility in a way that avoids some of the shortcomings addressed previously and rather embraces responsibility in its broad understanding as relational and inherently normative, as outlined in Section .. The contributions to this book follow this broad perspective. The three historical accounts for each policy field trace long-term
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The Rise of Responsibility in World Politics
developments over time, using formalised and institutionalised references to responsibility as anchoring points of their narrative. They zoom into the flux of time at historical landmarks, specifying how responsibility mattered and thanks to whom, and thus revealing the underlying values. They also inform us about moments of contestation when alternative pathways might have been possible. Responsibility becomes meaningful through the background of prior understandings. That said, however, the embeddedness of agency does not exclude the possibility to act and reason in novel ways once one has entered a space within which the meaning of responsibility is at stake. It is therefore important to not only consider a historic trajectory of responsibility as the first chapter for each policy area will do, but also specific situations in which responsibility is evoked and negotiated. The community concept is important here as it allows us to operationalise the space where such negotiations take place without being too prescriptive and assigning policy authority to specific or even formal actors such as IOs or epistemic communities. Some of the contributions will explicitly focus on identifying a community and the way it has formed around a specific issue area, describing who is involved and who is not, including the historical trajectory of the constellation and possible changes to inclusion and exclusion. The book addresses the issue of responsibility as a cross-cutting theme. It covers the fields of security, environment, and business with a view to mapping similarities and differences across seemingly different policy areas. The analysis resulted in three crucial observations: first, across all three fields we can observe a convergence in terms of an increased formalisation of responsibility in guidelines, directives, and treaties. We secondly can show that in all three cases responsibility entered the policy discourse not as the preferred choice but through a series of compromises. Finally, the works in this book reveal that across policy fields, responsibility claims are increasingly justified by references to human rights. These will be detailed now.
. Responsibility as a Cross-Cutting Concept in IR Theory ..
Policy Convergence: The Rise of Responsibility
The historical accounts across the three policy fields reveal differences, but also one crucial similarity, that is an increased formalisation of responsibility in guidelines, treaties, and laws over the course of the last three decades. The processes differ however with regard to timing: in the field of
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security, responsibility entered the discourse later than in the other two governance areas. Before formalisation set in, the respective fields of security, environment, and business underwent a process of discursive reconstitution which shares the same intellectual point of departure for all three fields, that is the Brundtland Report. That report occupies a key position to explain the shift towards responsibility in all three fields. Its author managed to couple the spheres of economics and environment and provided the blueprint for a changed understanding of security, too. The Brundtland Report marks the preliminary pinnacle of a series of reports, such as ‘North-South: A Programme for Survival’ and ‘Common Crisis: North-South’ by Willy Brandt (; ) and ‘Common Security: A Programme for Disarmament’ by Olof Palme (). Already those reports attempted to take a broader view of state-oriented security, highlighting the need for disarmament and the parallel improvement of social and economic conditions around the world (see also Chapters , and , in this volume). They were triggered by an apparent need to reinvigorate a global debate about state co-operation, which had been halted as a result of Cold War confrontations during the s. In different constellations, these reports addressed themes of peace, security, development, and the environment, though it was not before the Brundtland Report’s coining of ‘sustainable development’ that hitherto separate ideas were subsumed within a single concept. The Brundtland Report ultimately achieved two outcomes. It first evoked a moral compass with a strong sense of obligation and positive responsibility. Secondly, it did so in a manner that linked the governance domains of economics and environment. It built on achievements by the Stockholm Conference that sought to specify rights of the individual, such as the right to adequate food, housing, safe water, or family planning. This merging of two distinct governance areas (environment and economics) into one (sustainable development) later formed the intellectual blueprint also in the area of security. Security became less tied to states and more towards the relation between people and the international community. Along with the expanded remit of the three governance areas came an increase in formalisation of the new responsibility policy. To start with security, RP has been predominantly shaped by multilateral treaties for some time. Responsibility in the field of security had been largely treated as separate from questions of state sovereignty and more as a corollary of interstate conduct. The efforts of the International Committee of the Red Cross were the first attempts to formalise responsibility through the
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The Rise of Responsibility in World Politics
humanisation of interstate warfare. As Adam Bower shows in his contribution (see Chapter ), the mine-ban treaty follows the precedents set by the Saint Petersburg Declaration of and the Hague Convention. The humanisation of warfare amounted to an effort to regulate state-to-state conduct with particular responsibility towards different categories of people, expressed in the distinction between soldiers and civilians. It was this formalisation of interstate relations, though, that proved difficult to change and frame responsibility as something that involves the community of states and citizens of a third state. Despite the legacy of Brandt and Palme and new attempts to reframe security by Boutros Boutros-Ghali (), Gareth Evans (), and the UN Development Report, it was only during the latter half of the s that UN Secretary-General Kofi Annan and UN Special Rapporteur on the Human Rights of Internally Displaced Persons Francis Deng attempted to redefine the basis of state sovereignty in terms of a positive responsibility that would recalibrate the relations between a state, citizens, and the international community. On the basis of this discursive reconstitution RP became formalised through the ICISS Report and the World Summit despite prevailing contestation over its exact implications. Given the benefit of hindsight, it is possible to argue that because of the formalised nature of interstate relations, the coupling of sovereignty with responsibility was more difficult to imagine and to formalise than in the other governance fields, and hence accounts for the time lag. RP was fully enacted for the first time in combination with Chapter VII of the UN Charter in UN Security Council Resolution in . However, the actual application remains contested following the way the mandate was enacted. Brazil for instance has proposed its own understanding of the role of the international community in this constellation as ‘Responsibility while Protecting’. This signals disagreement on the legal side of responsibility regarding accountability and obligation while in principle acknowledging the ethical dimension. In fact, the debate over the formal constitutionalisation of RP is ongoing (Welsh and Banda ). Unlike in the field of security, environmental issues were regarded as a local concern and not subject to state-to-state relations for quite some time. Global treaties have only recently become the significant medium to formalise responsibility, taking into account the new approach to environmental governance as sustainable development. Robert Falkner’s overview highlights how most activities were initially organised locally and an exchange between environmentalists within their networks and between activists and scientists was hindered by wars, by global distances that made
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communications difficult in pre-internet age, and by a lack of global awareness (see Chapter ). This changed by the late s when anthropocentric concerns and post-material values gained a foothold in politics. The emergence of environmental social movements, some of which eventually led to Green parties (Goodin ), coincided with the founding of NGOs, such as Greenpeace and Friends of the Earth. These developments provided the broader setting for the Stockholm conference, which proved crucial in hindsight, establishing a common and special responsibility of states for global environmental affairs: paragraph two of the Stockholm Declaration speaks of a ‘duty of all Governments to protect and improve the human environment’ to ensure well-being and prosperity around the world, while paragraph seven ‘demand(s) acceptance of responsibility by citizens and communities and by enterprises and institutions at all levels’ to achieve long-term improvement and preservation of the environment, laying particular emphasis on ‘local and national governments’ to contribute to the international co-operation necessary to address regional and global problems. Despite these attempts to broaden the definition of environmental issues, the move towards formalisation did not progress much before the s and once sustainable development became a known concept. As shown in the respective chapters by Helga Haflidadottir and Anthony Lang as well as Virginie Barral, the Rio Conference and the ensuing UNFCCC established differentiated responsibilities of states, depending on their capacities, referring to values of environmentalism as well as property and possession in the area of economics (see Chapters and ). We therefore argue that the reconsideration of environmental governance as linked to economics enabled the formalisation of responsibility as it allowed states to compromise on aspects such as differentiated capabilities. Several further treaties and declarations have followed since Rio , further specifying the tasks associated with these responsibilities, such as binding aims to reduce CO emissions in the Kyoto Protocol and the Bali Conference. It was not until the Paris Conference (COP) at which parties were guided by principles such as ‘equity and common but differentiated responsibilities and respective capabilities’ and agreed to limit global temperature rises to . C above pre-industrial levels (Article ). Finally, in the field of business, the UN Guiding Principles signify a more formalised way to set out the obligation of MNCs to respect human rights. Bearing in mind that the field had been closely tied to the concept of sustainability since the late s, the Guiding Principles formalise the conduct of MNCs, tying companies into the fabric of global politics.
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The Rise of Responsibility in World Politics
This development of a social dimension of sustainability was successfully endorsed by the UN Human Rights Council after an extensive consultation process involving MNCs that lasted several years and underwent several loops of negotiation. As the respective chapters by Alvise Favotto and Kelly Kollman (Chapter ) as well as Hevina S Dashwood (Chapter ) show, CSR is no longer merely something that unions and NGOs demand from MNCs. Rather, it plays an increasing role in management decisions, communication, and company conduct. In this sense, it has become a formal – or institutionalised – part of the business world, even though, as Grahame Thompson reminds us in Chapter , there is considerable space for manoeuvring regarding the constitutionalisation of businesses in global politics and influencing their objectives. ..
Policy Communities: Responsibility as Compromise
Summarising the rise of responsibility and its increased formalisation across all three policy fields also provides evidence for the involvement of different actors who come together in communities of responsibility. The chapters in this book provide information about how abstract and broad claims to responsibility are negotiated in these communities. It is possible to identify a number of distinct traits across the three governance fields, while there are also parallel developments. First, in all fields we witness the interaction between states, non-governmental organisations, and other actors, though with different roles and to different degrees. States are key actors throughout, but they mattered more centrally in the field of security than in the other two. Second, two different mechanisms can be identified in the way in which responsibility is negotiated: first, state-to-state negotiations at global summits that lead to agreements, often influenced by political ideas and initiatives by individuals such as Brandt, Brundtland, Deng, or Evans; and second, reflexively organised stakeholder processes, characterised by delegation of authority and participation. Tracing these developments also reveals one common characteristic across all fields, that is that responsibility came about as a compromise. In this regard, we identify two ‘negotiation models’ which explain two kinds of shift in authority. We discuss these mechanisms and negotiation models in turn. ... Mechanisms A first mechanism is interaction between states at summits or within the context of the UN system that result in written agreements. Ideas, emanating from policy reports or initiatives of (former) politicians were picked
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up and translated in more binding conventions and treaties. Their understanding is often enriched by the presence of NGOs who take on a crucial role as norm entrepreneurs (Finnemore and Sikkink ; Keck and Sikkink ). Regarding the field of the environment, the respective chapters by Helga Haflidadottir and Anthony Lang (Chapter ) as well as Virginie Barral (Chapter ), have listed several key summits in this respect, such as Rio , the Bali Conference, and the Paris Summit. These summits, which were closely monitored by NGOs, serve as a reminder that states ultimately yield the capacity to adopt contracts and that intergovernmental arenas are the place in which they meet. Similarly, in the field of security, the rise of responsibility was led by efforts of non-governmental organisations’ appeals to the moral responsibility of states. These appeals preceded the codification of what a good state can and cannot do in times of war. It is in these codifications that signatory parties acknowledge their obligation to refrain from using certain weapons – an acknowledgement that was aided, as Adam Bower (Chapter ) shows, by a re-evaluation of the relation between humanitarian costs of the use of the weapons and potential military gains. A second mechanism refers to the involvement of stakeholders. Our understanding of the term comprises all groups that have a stake in a particular issue. It hence refers to more than the naming/shaming relation between NGOs and states, which is often not formalised. The prime example for our purpose can be found in the field of business, where MNCs had been invited to closely co-operate with states. As the respective chapters by Hevina S Dashwood (Chapter ) as well as Alvise Favotto and Kelly Kollman (Chapter ) show, responsibility has gained a strong foothold in business governance over the past two decades. This development is closely linked to the rise of multinational corporations as global actors, which in turn prompts a debate about their status as political entities (compare Grahame Thompson, Chapter , in this volume). When read together, the chapters on business governance show a shift in strategy over time: initially, naming and shaming by NGOs prevailed to an extent that the rise of responsibility as a policy norm meant that corporations assumed responsibilities for the health and safety of workers (e.g. the ILO’s convention on fair working conditions). Increasingly states began to recognise the effects of industrial production outside their own territory, which resulted, for instance, in the Convention on Transboundary Air Pollution. But it was not until the consultative involvement of MNCs in the development of the Guiding Principles that responsibility became a lasting feature in economic policy discourses. This procedure
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The Rise of Responsibility in World Politics
echoes the creation of the ISO , which is the Social Responsibility guidance standard. The continuous involvement of stakeholders in the process of developing the principles and standards, which mention accountability and human rights, allowed for an ongoing reflection on its content. This practice of inclusion has been identified as enhancing the legitimacy of the norm in the absence of a constituted polity (Hahn and Weidtmann ). ... Negotiation Models Within these mechanisms, how was it possible for actors to formalise responsibility? Our analysis of these communities shows that responsibility came about as the compromise solution in the negotiations. We can identify at least two features which help understand this development. For one, there is a compromise between independent actors. This type is particularly salient in the area of environmental governance, as the main achievements rest on interstate negotiations and ensuing treaties and conventions, happening to a lesser extent also in the area of business governance. We can term this interaction the ‘bargaining model’ since it is marked by negotiations between independent actors. For another, we can identify what could be termed the ‘stewardship model’, which describes a transfer of authority. It prevails particularly in the field of security. The ‘bargaining model’ refers to a compromise between actors, specifying the nature of responsibility vis-à-vis a particular object, such as the environment, and the curbing of policy options and, consequently, potential decisions with regard to common-pool resources. According to this model, the compromise that was struck was aided by the changed political situation of the time, which was marked by a period of multilateralism that followed the Cold War. As described in the chapters by Virginie Barral (Chapter ) as well as Helga Haflidadottir and Anthony Lang (Chapter ), the agreement on CBDR ensured the widest possible participation between developed countries from the global North and industrially less advanced countries from the global South. While the pursuit of economic development was a common denominator between countries, by the time of the Rio Conference the general discourse demanded that it be at least ‘sustainable’, thereby restricting the space of possible policymaking. As the authors make plain, this compromise thus impacted on prevailing norms and values: it involved accepting a constraint on state sovereignty and the right to property (i.e. the untaxed use of common-pool resources like air and water) while strengthening values associated with environmentalism and global justice. In the field of
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business we can observe another, softened version of this bargaining model, especially following the stakeholder consultation preceding the Guiding Principles. This is a softened version since MNCs do not have the same formal capacities as states, yet their economic significance in global politics ensured them an invitation to the table. They were treated akin to states bar the formal validation of the Guiding Principles, ensuring that economic activity be curtailed by aspects of sustainability (compare also O’Neill ). The ‘stewardship model’ follows from Grahame Thompson’s discussion on how economic governance should move forward (Chapter ). While this model also addresses the curbing of policies, its main feature is the transfer of authority. Thompson makes this point in his suggestion to alter the raison d’être of the corporation from maximising shareholder revenue towards benefitting the social context in which it operates. Aided by appropriate legal frameworks, this would transfer ultimate control over the workings of the corporation to an independent panel, thereby altering the accountability structure within the organisation (which is responsible) as well as within the space in which it operates (what it is responsible for). It would more fully realise the compromise formed by the UN Guiding Principles in which multinational corporations’ responsibility towards their shareholders is reconciled with the guarantee for workers’ rights and appropriate economic conduct. This includes a limitation (if not elimination) of negative externalities. The ‘stewardship model’ is operating more fully in the security field, however. Here, the compromise struck involves advocates striving to maintain sovereignty of the state along the lines proclaimed by the ‘myth of Westphalia’ and those advocating individual rights. The former would suggest that states possess external sovereignty vis-à-vis other states given the absence of a higher authority to which they could be held accountable, and they would possess internal sovereignty regarding any domestic affairs, including relations to their citizens. While authors like Glanville () demonstrate that such arrangement was never as clear-cut, the concept of internal and external sovereignty was only explicitly challenged during the late s by Annan and Deng. They questioned whether state-citizen relations were an exclusively internal affair, arguing that there was a collective responsibility for human well-being. In this instance of power transfer, sovereignty is taken away from the state and placed into the hands of the international community, which assumes the role of a steward with the responsibility to protect citizens of other states. Much like Grahame Thompson would like to see authority over the doings of a firm transferred
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The Rise of Responsibility in World Politics
to an independent panel, international society takes on the role of steward for protecting people from genocide. Ultimately, these two negotiation models about the emergence of responsibility as a policy compromise are not meant to provide more than heuristic guidance, i.e. they are not supposed to hold generalisable, theoretical explanatory sway. Yet, they do indicate a trend that when new actors begin to play a role in global politics the position of existing ones changes the nature of their relation. This happens when stewards appropriate a new role. At the same time, the object around which their interaction unfolds changes as well, such as the move from conservation to preservation. ..
Policy Foundation: Human Rights as the Common Point of Reference
The third observation reviewing the rise of responsibility in the three policy areas covered in this book is the recent reference to human rights when negotiating responsibility across all three policy fields. In fact, we argue that the rise of the human rights discourse has enabled a turn to responsibility. Researchers have long since shown how human rights came to matter within particular countries (Risse et al. ) following the establishment of specific rights such as the provision covered by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights as well as the Universal Declaration of Human Rights. Insights from the chapters of this volume go further in that they underscore the particular normative impact across policy areas. In this regard, we argue that the link to human rights provides argumentative clout for NGOs as well as states to hold others to account or to shame/blame them into engaging in particular behaviour, while it also provides enabling conditions, as some of our authors argue. In other words, because human rights are well established as a normative principle, speaking of responsibilities of someone and for something commands attention and seems to be key in the attempt to induce a sense of appropriateness. Let us consider the different policy areas one by one, tracing how the link between responsibility and human rights has been achieved and how it plays out in practice. In the field of security, the link between human rights and responsibility has probably been best documented for some time. As the chapters by Benjamin de Carvalho (Chapter ) and Adam Bower (Chapter ) highlight, the argumentative push to consider security in terms of human security (rather than, for instance, from a national
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interest point of view) has been fundamental to this development. This is apparent in the attempt to humanise international warfare, for instance by banning certain weapon systems, as well as in the attempt to alter the understanding of state sovereignty. Arguably, then, the move towards human security was aided by the series of commissioned reports since the early s, as discussed, as they address security in a more holistic manner, that is not from the perspective of individual nation states. While we wish to caution against a teleological reading of this development, a breakthrough was reached with the ICISS report headed by Gareth Evans, while the World Summit retracted some of the positions from . These developments, spurred by atrocities committed during the s in Somalia, Rwanda, Bosnia, and Kosovo, have potentially lifted human rights out of the state-bound context, which was the subject of the investigation into The Power of Human Rights, and into the international arena: since the first decade of the millennium state sovereignty has been formulated in terms of a responsibility to protect citizens from genocide. The shift in the locus of sovereignty towards international society, that we addressed in our discussion of the ‘stewardship model’, means that the international society assumes responsibility to protect and ‘save strangers’ (Wheeler ) when a state fails to do so. The successful passing of UNSC Resolution shows that the link has gained traction. Thus, overall, the internationalisation of human rights occurred parallel with strengthening the positions of individuals in global politics (compare Gholiagha ), while the concept of responsibility provided the compromise to reconcile individual rights and state sovereignty. In the field of environmental governance, by contrast, the jury is still out whether human rights can be successfully linked to climate change although attempts are well under way. As the chapters by Virginie Barral (Chapter ) as well as Helga Haflidadottir and Anthony Lang (Chapter ) discuss, the OHCHR has established that climate change affects the full set of human rights, that is a right to life, adequate food and housing, health, and self-determination. But still, courts have rejected holding states accountable for their contribution to global warming, such as attempted by the Circumpolar Conference in front of the Inter-American Commission on Human Rights regarding the United States’ role. Yet, as the District Court of The Hague ruled in , the Netherlands, at least, are under obligation to take measures to control emission targets, while the higher regional court in Hamm, Germany, will move forward to hear the case of Peruvian farmer Saúl Lliuya against energy company RWE for its contribution to climate change.
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The Rise of Responsibility in World Politics
This successful attempt to establish legal accountability aside, there is an important difference to the field of security when it comes to the link between human rights and responsibility. States have differentiated responsibilities regarding the measures taken to tackle the causes of climate change. By contrast, human rights in the field of security are not to be treated through a differentiated approach and are set as absolute, meaning that states cannot differentiate ‘how many and which’ human rights they implement. This implies that we need to be precise: human rights come with a range of responsibilities – towards justice and the rule of law as well as towards various social rights; and they rest with different actors as well. Some of the responsibilities are to be fulfilled without limitation whereas others leave room for differentiation. What we see here is a different treatment of questions of justice and the rule of law, on the one hand, and sustainable development as the common denominator between economic and environmental governance, on the other. The differentiation in the field of environmental governance is part of eliminating negative externalities from economic activity, and the proximity between these two fields was shaped not least through the concept of sustainable development. Thus, the initial underlying value of CSR and CBDR was sustainability. Also, the Brundtland Report did not immediately establish a link to human rights. As detailed in the chapter by Hevina S Dashwood (Chapter ), it took several attempts to establish the connection between CSR and human rights: starting with the initiative by Bill Clinton and Tony Blair in the ‘Voluntary Principles’ that responded to human rights abuses by MNCs of the extractive sector during the s, via the failed attempt to establish the ‘norms to protect human rights’ in , it was not before the successful stakeholder consultations in the run-up to the UN Guiding Principles in that the link was made. As the case study by Alvise Favotto and Kelly Kollman (Chapter ) suggests, human rights are increasingly embraced by MNCs. Further, Grahame Thompson (Chapter ) shows that MNCs are increasingly interested to leave a positive imprint of their doings by engaging with local communities and in philanthropy. These activities signal a growing sense of obligation towards providing the communities in which they operate with access to resources, education, etc., which can be viewed as strengthening the human rights provisions entailed in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. In sum, we can see how the link to human rights has managed to provide specifics to what it is that an actor is responsible for and who such
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an actor is in the first place. In other words, once it has become clear that people have rights to clean water or air, those whose activities impact on it have a moral as well as a legal obligation to ensure its provision. Once security became an issue of human rights, sovereignty became linked to ensuring people’s well-being and the responsibility of a global community. There is considerable variation in the way the human rights discourse enabled the responsibility discourse, though: while the link between responsibility and human rights has paved the way for MNCs to participate in global politics, the ‘international community’ remains a rather vague entity. Its boundaries and remits are subject to debate in morality and law. Based on these findings, in the final chapter of the book we reinforce the argument that IR scholarship should embrace responsibility as a concept that bridges questions of politics, law, and ethics. Matters of right and wrong cannot be solved by a focus on existing regulations and treaty provisions alone. We contend that it is necessary to engage in ‘virtue ethics’ instead.
. Book Overview The book is structured in three sections which provide an in-depth discussion of the rise of responsibility in three policy fields: security, environment, and business. Each of these sections contains three chapters. The first chapter provides an overview of the rise of the respective policy norm and highlights critical junctures as well as relevant policy communities crucial for promoting the norms. The second chapter then zooms in on these policy communities to provide an account of how responsibility is negotiated and what responsibility practices are at play. The final chapter of each section provides bridges from International Relations towards political theory and international law, emphasising the underlying values of responsibility and thus the struggles over interpretation of the respective policy norms. The first set of chapters concerns the field of security and here in particular the responsibility to protect vulnerable people from being harmed by the forces of sovereign states. Benjamin de Carvalho’s chapter (Chapter ) traces this policy norm as a product of the late s and the lack of international response in the humanitarian crises of that time. He carefully describes the situation with regard to RP prior to the UN reform movement of the late s and the attempts at redefining the rights of states vis-à-vis individuals during the s. One of which, ‘sovereignty as
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The Rise of Responsibility in World Politics
responsibility’, became successful in redefining the rights and duties associated with state sovereignty before the emergence of the concept of RP. This norm was eventually adopted by the UN World Summit in . The chapter shows how RP emerged as a compromise, yet, in spite of its fast rise in world politics, it is far from being a widely shared policy norm in practice. Adam Bower (Chapter ) engages with issues of responsibility in the area of regulation and (more rarely) elimination of conventional weapons. The question of responsibility comes to the fore as one of a human war or, to put it differently, legitimate warfare. For this reason, international disarmament can be seen as a potent site of contestation over the meaning and limits of responsibility in world politics. What does it mean to behave responsibly in using armed force, and for what actions can one be held responsible; who gets to set these standards, and thus counts as a responsible member of international society; and to whom are obligations owed? Bower investigates these questions by looking at the pressures of banning antipersonnel mines. He argues that the international society pursues two competing notions to the question of legitimate weapons. Both share the moral reasoning for preventing unnecessary sufferings of people yet diverge when it comes to the causal reasoning concerning the origins of humanitarian crises and, consequently, how far the freedom of state conduct should be constrained by humanitarian concerns. Toni Erskine engages in issues of RP and asks the crucial question where moral responsibility can and should be located at the international level (Chapter ). At the core of RP lies the question between state sovereignty and the protection of people that the international community must answer before deciding about intervention. The official arena for such decisions is the United Nations (UN). Yet, what happens in situations when there is no UN mandate while at the same time we know of a humanitarian crisis? Drawing on (political and social) philosophy, Erskine sounds out the possibilities and limits of moral agency of informal groups, so-called coalitions of the willing. She derives conditions under which groups can be bearers of moral agency and thus would have the obligation to form a body that is able to take a decision to intervene. She argues that in such cases of shared responsibility, responsibility is not reduced but rather to the contrary the expectations of each member of the group are enhanced given that together as a group they are able to achieve more than through single action. The next set of chapters investigates the notion of responsibility in the environmental sector. Robert Falkner’s chapter provides the historical
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background, showing how responsibility entered the environmental policy field and how its meaning changed over time (Chapter ). The chapter describes the ideational context in which environmental ideas and norms emerged and the three main notions of environmentalism that provided ideational possibilities for the formulation of state environmental responsibility. All three follow different connotations of responsibility from ethics, to obligation, and pure interest. Falkner traces the origins of organised environmentalism in the nineteenth century to the post–Second World War era and modern environmentalism, over to the gradual globalisation of the global environmental responsibility norm from Stockholm to the Rio ‘Earth Summit’. By doing so, he does not only show how the norm gets diffused throughout international society since Stockholm but also how its meaning evolves and changes, taking on board the concerns of, in particular, developing countries, where the challenge is to balance environmental protection with economic development. The principle of differentiation, more firmly established at the Rio Summit, is the subject of the next chapter, and looks at the common but differentiated responsibility (CBDR) of countries from an international law perspective. In this chapter, Virginie Barral explores the meanings and practices of the notion of responsibility in international law, using the example of the principle of CBDR (Chapter ). The main argument put forward is that the competing conceptual groundings attributed to the principle of differentiation as well as the variety of its practical legal translations provide the ground for a broadening of the understanding of the notion of responsibility in international law. The chapter does not only review these competing meanings, it further assesses the relationship of the principle to international law and details some of the ways in which it is used to influence legal content by investigating the practical legal translations of the principle. The third chapter on the environment takes the clue directly from Barral by acknowledging that the principle of differentiation in the international legal response to climate change is an important normative principle and provides both a legal and moral discourse for addressing the issue. Helga Haflidadottir and Anthony Lang however argue that because it is part of an international legal treaty, the problem becomes one for states to address (Chapter ). While they acknowledge that states must play a key role in addressing climate change, they develop the notion of political responsibility, drawing on political philosophy, to allow for a broader understanding of responsibility that would also open up the potential actorship to individuals for instance and thus make more room
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The Rise of Responsibility in World Politics
for alternative modes of political action. In fact, instead of locating responsibility either on the individual level or at state level, the concept of political responsibility provides an alternative because it anchors responsible behaviour in a community. Following Arendt’s considerations, they contend that political responsibility derives from one’s membership in a community rather than solely from causal responsibility for the commission of harm. At the global level, it can mean constructing public space where different actors within the international community engage in active political participation. It thus links the individual with the level of the state. At the beginning of the third section, Hevina S Dashwood’s historical account of the emergence and development of CSR tells the story of this policy norm as one of shifting responsibilities between the public and the private sector (Chapter ). The rise of corporate responsibility as a global norm can be traced to the s and the advent of globalisation, a time of deregulation and the decreasing responsibility of the state for specific social policies in one part of the world. Many global companies were participating in a rapidly increasing array of ‘voluntary’ governance arrangements also in other parts of the world, often to fill in for a non-existing public sector. The author argues that CSR achieved global normative status in the late s, with regional and sectoral variation in degree but also with regard to who is assigned responsibility and for what. This global status however, does not mean that companies have universally adopted the policy norm. Instead, there is a back-and-forth pushing in terms of the assignment of responsibility between the public and the private sector over time, with a trend towards more re-regulation currently. Dashwood is tracing this evolution of the meaning of CSR and thus providing a clear picture of the community of actors who negotiate the norm over time and by doing so taking, ascribing, and claiming responsibility. Dashwood’s chapter sets the scene for the following two chapters on responsibility in the corporate world as they zoom in on different aspects of the consolidation of CSR as a policy norm. Alvise Favotto and Kelly Kollman set out to answer the question how corporations define their social responsibilities in the early twenty-first century and to what extent these definitions have changed in light of global campaigns to improve multinational corporations’ (MNCs) human rights and environmental practices (Chapter ). They first of all show the increased structuration of the CSR field by tracing the interaction of actors and the increasing regulation in this area. This is the starting point for the actual analysis of CEOs in Germany and the United States, and their reaction to those
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changes in the so-called sustainability communities which they are part of. Drawing on a data set they can show how managers take on CSR as it is discussed in their respective communities. This signifies not necessarily an increase in CSR activities but an increased awareness, maybe even socialisation processes and the possibility for internalisation, of the normative environment in which companies are embedded amongst a specific group of people, that is managers, who are crucial decision-makers in this respect. Finally, Grahame Thompson’s chapter addresses a more conceptual question with regard to responsibility of MNCs in the global economy (Chapter ). He argues that companies have become political actors and outlines the problems this development has brought about. That is, while taking over crucial tasks in the public sphere, companies are not organised democratically internally nor are they subject to systematic responsibility claims externally. He develops the notion of the ‘constitutionalization’ of corporate matters, a political process of the formation of corporate responsibility, rather than moral claims for it, that takes place via political struggles at the intersection of internal corporate governance and external corporate environment. The volume closes with a brief outlook for further research on the role of ethics in world politics (Chapter ). The chapter provides an argument to include responsibility in the tool-box of IR scholarship with a particular focus on highlighting the role of ethics in world politics. Questions about causal or remedial responsibility prevail in governance fields other than the ones we covered in this volume, and they continue to matter in the fields of security, environment, and business. Policies result from political choices which cannot be reduced to questions of law and legality because they are deeply ethical. We therefore propose a further engagement with the emergent ‘virtue ethics’ literature and show how the insights of that scholarship offer fertile ground for analyses of world politics.
Notes Hart (: ) writes, ‘As captain of the ship, X was responsible for the safety of his passengers and crew. But on his last voyage he got drunk every night and was responsible for the loss of the ship with all aboard. It was rumoured that he was insane, but the doctors considered that he was responsible for his actions. Throughout the voyage he behaved quite irresponsibly, and various incidents in his career showed that he was not a responsible person. He always maintained that the exceptional winter storms were responsible for the loss of the ship, but in the legal proceedings brought against him he was found criminally responsible for his negligent conduct, and in separate civil proceedings he was held
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The Rise of Responsibility in World Politics
legally responsible for the loss of life and property. He is still alive and he is morally responsible for the deaths of many women and children.’ Note how this differs from Miller () in which benefit and outcome responsibility are not explicitly addressed and he focuses on moral and causal responsibility as well as capacity and community as interlinked criteria for establishing remedial responsibility. To be clear, in this paper Warner () eventually also denies a communitarian approach to the question of responsibility as being overly naive (p. ) and suggests eventually to deconstruct this search for responsibility and community. Our solution is to locate responsibility in practice (see the following section). As a guidance standard, it can be used by CEOs as a commitment to ‘best practice’. Further principles next to accountability and human rights are, transparency, ethical behaviour, respect for stakeholder interests, respect for the rule of law, and respect for international norms of behaviour. The environment is listed as one of its core subjects, as are labour practices, and community involvement and development (ISO ). At the time of writing, the verdict is being challenged by the Dutch government. The verdict of the ‘Urgenda Case’ will be heard at The Hague Court of Appeal in May . The date of Lliuya vs. RWE is not yet known.
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Security
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Twisting Sovereignty Security, Human Rights, and the Responsibility to Protect Benjamin de Carvalho
. Introduction Responsibility in the field of security has become well established and is central to most discussions of international peace and security today. In fact, it rests squarely at the intersection of ethics and security in International Relations, structured by the tension between what Martin Wight termed the ‘Hobbesian’ and the ‘Kantian’ traditions of international thought (Wight ). These traditions, summarily stated, posit different views on the central bearers of rights in the international, where a Hobbesian tradition would advance the rights of states, and a Kantian tradition those of individuals. As a corollary to these positions, the concept of a Responsibility to Protect (RP) was wedged around the nexus of two major fields of contention, which in effect it came to bridge. The first of these is the rights of states versus the rights of individuals (compare Bower, in this volume). The second concerns the duties of (the collectivity of ) states in the face of human suffering, and what type of shields sovereignty should provide states directly involved in causing human suffering (compare Erskine, in this volume). RP gained popularity fast, to the point where the link between responsibility and security has indeed gained a taken-for-grantedness such that most attempts at defining the emergence of crises in the world today are seen as failures to fulfil sovereign ‘responsibilities’. In fact, the RP policy norm has become an important part of our way of thinking about the use of force in relation to grave breaches of human rights, becoming an intrinsic part of the debate about humanitarian interventions. Coined by the Canadian–sponsored International Commission on Intervention and State Sovereignty (ICISS) in , a watered-down version of RP was adopted unanimously by the UN World Summit in . Yet, there was no consensus in place as to the meaning of it, nor as to its applicability or implementation. Since then, the principle has been the subject of great
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debate, until finally vaguely referred to by the UNSC in when legitimising the NATO intervention in Libya through UNSC/RES . As Gareth Evans, the co-chair of the ICISS has noted, ‘This was a remarkably short time – just a blink of an eye in the history of ideas – when measured against the decades, or sometimes centuries, it usually takes for new concepts to take hold to this extent’ (Evans b: ). Furthermore, RP counts the support of a number of think tanks devoted to implementing the norm such as the Global Centre for the Responsibility to Protect, and the Asia-Pacific Centre for the Responsibility to Protect. RP also has a dedicated academic journal (Global Responsibility to Protect) and a book series with academic publisher Routledge, as well as a handbook with Oxford University Press (Bellamy and Dunne ). All of these continue to keep up the momentum the idea of sovereignty as responsibility has received since . By all measures, RP has been hugely successful in redefining the international debate on security. Yet, despite the success the idea of RP had in its first decade, the road to being adopted – however reluctantly – by the international community as the blueprint for humanitarian interventions was full of obstacles. In spite of the general support the idea had with the West, the idea met strong resistance from states in the Global South who feared a continuation of imperialist and colonialist practices, and it was only through the strong activism of a small international elite that the idea was pushed through at the World Summit in . Edward C. Luck, who in was appointed Special Advisor on the Responsibility to Protect by Ban Ki-Moon, held that the idea of state responsibility had been well established discursively: ‘The lively academic discourse and the dedicated efforts of NGOs, such as the Global Centre for the Responsibility to Protect, the International Coalition for the Responsibility to Protect, and the Asia-Pacific Centre for the Responsibility to Protect, both reflect and encourage the continuing interest in civil society to move RtoP from words to deeds’ (Luck : ; see also Luck ). The broad debate about the rights of individuals and the prerogatives of sovereign states, which unfolded during the s, has in the eyes of many been resolved unproblematically in favour of the former by curtailing the prerogatives traditionally associated with the principle of state sovereignty. The more absolute sovereignty of the Cold War, which had been the hallmark of the international system in the age of decolonisation and new states being born (Glanville ), was twisted and turned into a more conditional right which the international community could grant, but also take away. Omnipotent Leviathans thereby became responsible
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Twisting Sovereignty: Security and Human Rights
citizens of international society, enjoying a conditional right to a limited sovereignty which was defined and upheld by the international community. The aim of the chapter is to trace the history of responsibility in the field of security through the development of RP. By using the idea of ‘responsibility’ as a lens through which to assess which and whose interests, objectives, and aims RP was designed to advance, and how this was articulated in the inception of RP, I show that in spite of claimed ancestry, RP was a product of the late s and aimed to address the lack of international response or intervention in the humanitarian crises of that decade. In so doing, the chapter contributes to broadening our historical account of RP by linking and situating aspects of RP to and alongside earlier initiatives of the s, including Our Global Neighbourhood. It thus feeds into the overall objective of the book to follow the concept of discourse and to re-establish how it entered the policy discourse in one particular policy field, that of security. The chapter will first and foremost trace the historical development of RP beyond its claimed invention. Accordingly, it will follow a roughly chronological structure. The material forming the basis for this account will consist of both texts and accounts of political processes. Contrasting discursive development with the political processes that accompany them allows for focus on the power dimension accompanying such innovations. In fact, such a historical excavation also opens up new discursive spaces which can help shed light on prevalent discourses, as well as open up spaces for new ones. One of these, which I will highlight, is an attention to the opposition to RP. Emphasising the political process through which RP underwent before being adopted by the UN World Summit in in a watered-down version showcases the resistances which the conceptual innovation met and had to overcome. Doing so allows for more attention to be drawn to more critical perspectives on the principle, which I will highlight throughout and allude to in the conclusion. This account is hence adopting the book’s framework to zoom in on the interpretive struggles around responsibility and signifies the negotiated nature of global governance (see introduction to this volume in Chapter ). I proceed in five steps. First, I uncover antecedents to RP in the UN reform movement of the late s. Second, I provide an outline of a number of attempts at redefining the rights of states vis-à-vis individuals during the s. Third, I show how one of these attempts, ‘sovereignty as responsibility’ came to be successful in redefining the rights and duties associated with state sovereignty. Fourth, I detail the process leading to the emergence of the concept of RP, before ending with the adoption of RP
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by the UN World Summit in . Finally, I conclude that the fast track RP has enjoyed does not necessarily reflect the extent to which this policy norm is shared, and that for RP the main test still lies ahead, in the extent to which it can or will be transcribed into practice.
. Security and Responsibility: Early Developments In the aftermath of the Cold War, widespread beliefs and hopes that the international could be managed through functioning collective security arrangements came to mark both public debates and policy circles. Within the UN, which for most of the Cold War had been frustrated by a frozen Security Council in which veto powers jealously protected their interests and denied the possibility of joint action, these hopes were expressed by new secretaries-general who took it upon themselves to turn these hopes into reform of the UN system in order to make it better able to address situations in which civil society expected the UN to act, such as grave violations of human rights. Central to the success of this effort was the coupling of human rights and security, the so-called push for an understanding of security as human security (see Suhrke ; Chandler ). UN Secretary-General Javier Pérez de Cuéllar argued in that ‘the protection of human rights has now become one of the keystones in the arch of peace’ (quoted in Glanville : ). Pérez de Cuéllar further specified, the protection of human rights ‘now involves a more concerted exertion of international influence and pressure through timely appeal, admonition, remonstrance or condemnation and, in the last resort, an appropriate United Nations presence, than what was regarded as permissible under traditional international law’ (ibid.). This linking of security to human rights is commonly seen as originating in the end of the arms race and the ‘deadlock’ of the Cold War. Yet, while this may to a certain extent be true, as the aftermath of the Cold War saw a flourishing of attempts to redefine security so as to better take into account human rights, the roots lie in a series of reports aimed at reforming international institutions which were commissioned during the Cold War itself. The wave of UN reform initiatives following the optimism of the early s was by many seen as stemming from the Brandt report (Brandt ), the Palme report (Palme ) as well as the Brundtland report (World Commission on Environment and Development ). The latter two developed common approaches to peace, security, development, and the environment. While the Palme report focussed on disarmament, the Brundtland report launched the term ‘sustainable development’ (see also
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Twisting Sovereignty: Security and Human Rights
the chapters by Falkner and Dashwood, respectively, in this volume). The discursive innovation of the Brundtland Commission, albeit in a different field, was to be of crucial importance in the field of security as it showed how such discursive innovations could change actual policy and political positions. As Gareth Evans has noted with respect to the ICISS, The commission’s hope, above all, was that using ‘responsibility to protect’ rather than ‘right to intervene’ language would enable entrenched opponents to find new ground on which to more constructively engage. We very much had in mind the power of new ideas, or old ideas newly expressed, to actually change the behaviour of key policy actors. And the model we looked to in this respect was the Brundtland Commission. (Evans b: )
RP emerged as a discursive construction aimed at creating consensus on a contentious issue. As Marc Pollentine has argued, ‘It was clear that inspiration for the Commission, and indeed aspiration for its work, was provided by the Brundtland World Commission on Environment and Development’ (: ). In fact, he confirms, ‘Brundtland provided the intellectual blueprints for ICISS based upon its immensely successful concept of “sustainable development” which fused concern for increasing environmental pressures with the need for continued human economic development. This reconciliation – which Axworthy described as having “changed the way we think and do business” – demonstrated the importance of language and evidence of what might be possible in this case’ (: ). Secretary-General Boutros Boutros-Ghali’s report, called An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping (), made an effort to develop structures that would strengthen peace. ‘The time of absolute and exclusive sovereignty, however’, Boutros-Ghali argued, ‘has passed; its theory was never matched by reality’ (BoutrosGhali : §). One year later Gareth Evans responded to Boutros Ghali’s invitation to debate these issues and initiated a major study published as Cooperating for Peace. Evans argued that security is about protecting individuals as much as defending the territorial integrity of states, and that economic development, human rights, good governance, and peace are intertwined and mutually reinforcing. He called for preventive diplomacy rather than post-conflict reconstruction and suggested guidelines for future interventions. The report Renewing the United Nations System (Childers and Urquhart ), while focusing on economic and social cooperation, and the root
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causes of instability, violence, and insecurity, highlighted the UN’s lack of leadership in global economic policy and further noted a need for an international human rights court and system for monitoring human rights violations. When ‘responsibility’ was used, it only referred to the socioeconomic roles of the UN. The first appearance of international responsibility within the discourse on the role of the UN and the international community is not before . As the UN celebrated its fiftieth anniversary of the UN Charter, the Commission on Global Governance published its report entitled Our Global Neighbourhood. As the Cold War was coming to an end, Willy Brandt had invited key members of these commissions to a meeting in Königswinter in . Among the participants were Gro Harlem Brundtland, Ingvar Carlsson, Shridath Ramphal, Jan Pronk, and Julius Nyerere. Members of this meeting continued to work up until , when a document entitled Common Responsibility in the s: The Stockholm Initiative on Global Security and Governance was presented at a meeting in Sweden, and then subsequently endorsed by many world leaders. Our Global Neighbourhood (Commission on Global Governance ) was a direct sequel to that report. The report gave specific proposals on how to expand the UN’s authority in order to provide a standing UN army; the establishment of an Economic Security Council; end the veto power of permanent members of the Security Council; the establishment of a new parliamentary body of civil society representatives (NGOs); the establishment of a new Petitions Council; a new Court of Criminal Justice; the creation of binding verdicts of the International Court of Justice; and expanded authority for the Secretary-General. The report stated that states ‘must secure their future through commitment to common responsibility and shared effort’ (: foreword; emphasis added). The chairmen further stated that ‘[w]e also believe the world’s arrangements for the conduct of its affairs must be underpinned by certain common values. Ultimately, no organization will work and no law upheld unless they rest on a foundation made strong by shared values. These values must be informed by a sense of common responsibility for both present and future generations’ (ibid.; emphasis added). The chairmen went on to write ‘[w]e can, for example, go forward to a new era of security that responds to law and collective will and common responsibility by placing the security of people and of the planet at the centre’ (ibid.). And finally, with reference to developments in the wake of , the report stated that ‘[t]he world community seemed to be uniting around the idea that it should assume greater collective responsibility in a wide range of areas, including
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Twisting Sovereignty: Security and Human Rights
security – not only in a military sense but in economic and social terms as well – sustainable development, the promotion of democracy, equity and human rights, and humanitarian action’ (: chapter ). Yet, Our Global Neighbourhood not only developed the idea of international responsibility, it also included clear parallel, if not identical takes, to the ICISS work and Evans’ pioneering of RP. For as Our Global Neighbourhood stated, ‘Most governments accept responsibility for the provision of public goods such as policing and justice, financial stability, or environmental protection; to do otherwise would be to abandon essential functions of a state. The same responsibility applies – but is less readily acknowledged – at an international level’ (ibid.). The major innovation of ICISS, namely to bypass the thorny question of rights and duties, focusing instead on the double responsibility, had been around for quite some time. In fact, as the previous quote makes clear, the responsibilities of states towards individuals, and the responsibility of the international community to intervene should this first responsibility fail, is already there.
. The s: The Decade of Humanitarian Intervention The s were above all defined as the decade of humanitarian intervention. Initiated largely by UN Secretary-General Javier Pérez de Cuéllar, the debate culminated with the innovations of the ICISS introducing the concept of RP. And although there was in no way a linear development or teleology at play here, successive developments and rearticulations came to build upon each other, and different terms and concepts were launched and competed with each other for international attention and legitimacy. These included the insistence from French Foreign Minister Bernard Kouchner – founder of Médecins sans Frontières (MSF) – on a droit d’ingérence, or a right to intervention; the case made by British Prime Minister Tony Blair about the need to bypass the UN Security Council when the moral case for intervention so dictated; the development of the idea of human security; the rearticulation of ‘sovereignty as responsibility’ by Francis Deng and his associates at the Brookings Institution; and finally UN Secretary-General Kofi Annan’s insistence on the need to balance ‘individual sovereignty’ against ‘national sovereignty’ (see Evans b: ; Glanville ). As Evans himself notes, ‘for all the creativity and commitment involved in each of these efforts, none of them succeeded in generating any kind of broad international consensus’ (Evans b: ). Thus, when the ICISS issued its report on the RP, the Commission relied
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on and funnelled a broad and disorganised debate which had been going on for over a decade (de Waal ; Evans a). The immediate aftermath of the Cold War started a heated international debate about the parameters of the legal and legitimate use of force in international politics. To many, the joint international operation against Iraq in backed by the UN Security Council (UNSC) heralded the end of the deadlocked situation of the Cold War, and a new era in which the international community would take joint action in matters of international peace and security. The heightened global awareness and focus on human rights and their severe breaches in conflicts throughout the globe played into this, giving way to a broad discussion about the justifiability of the international use of force in order to redress or prevent grave breaches of human rights. This debate about ‘humanitarian intervention’ reached the wider public sphere and came to define the terms of international peace and security of the s (for an overview, see Chandler ). Yet that debate reached a deadlock too. Against the necessity to intervene or ‘do something’, the inherited tradition of just war thinking left an obstacle difficult to overcome when the use of force by other states against the wishes of a sovereign state was concerned: just authority and its intricate connection to the geopolitics of the UNSC. The veto of the permanent members (P) of the UNSC once again came to loom over the bright dawn of humanitarian intervention. NATO’s solution for the former Yugoslavia, championed notably by Tony Blair, was that grave breaches of human rights in and of themselves constituted just authority. This conflation of both just cause and just authority in an attempt to sidestep Chinese and Russian opposition to NATO intervention in the Balkans proved not workable: both international law and ethics stood firm on the insistence of the necessity of securing legal authorisation before the international deployment of force. The debate about whether states had a right to intervene ended with confirming such a right, with the caveat that the international community must give its authorisation through the UN Security Council. A second debate followed the aftermath of the US retreat from Somalia in . Pérez de Cuéllar had attempted to shift the discussion from the right to intervene to focus instead on the duties of states to act: ‘What is involved is not the right of intervention but the collective obligation of States to bring relief and redress in human rights emergencies’ (quoted in Glanville : ). After the US retreat and refusal to further engage militarily in Somalia, a fear of the consequences of military involvement on the African continent left the whole world watching on the sidelines,
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Twisting Sovereignty: Security and Human Rights
despite numerous warnings and as parties to the Convention against Genocide, as over half a million people were killed in Rwanda. Despite the global commitment states had to act against genocide by virtue of being party to the Convention against Genocide. This time, the debate was fuelled by a global civil society demanding that action be taken in cases of grave breaches of human rights. There was no shortage of either just cause or just authority this time. Thus, there was no discussion of a right to intervene in Rwanda, as that right was well established in the Genocide Convention, but of the duty states had to act (see also Erskine, in this volume). Yet, for all the calls for action, few of the states so duly entitled to act felt a responsibility to do so, let alone a duty. This time the principle of state sovereignty came out strengthened in order to account for the inaction of the international community of states in the face of a situation calling for humanitarian intervention. It is against this backdrop, provided by the discursive strands clustering around the limits of both the rights and the duties of the international community to sidestep sovereignty in the face of grave breeches of human rights, that the origins of RP can be traced (see Pape ). This frustrating deadlock gave way to a new argument which attempted to stay clear of this impasse by circumventing the blockade posed by the principle of state sovereignty altogether by ignoring it; calling instead for a redefinition or twisting of sovereignty. Enabling the policy move to understand sovereignty not as a cluster of rights delimitating the territorial boundaries of political authority but rather as a set of domestic duties in accordance with principles of good governance was largely supported by the move in academic circles to understand sovereignty as socially constructed rather than ascribing to it a set meaning (see the discussion in Bartelson ). This twist in sovereignty was intrinsically bound to the scholarly emphasis on the constructed nature of state sovereignty which followed the constructivist turn in IR. A number of works insisted on setting aside the principled or normative character of sovereignty, focusing instead on sovereignty as a site of political struggle or normative change (see Biersteker and Weber ). Sovereignty became, so to speak, what states made of it. This academic move happened parallel to a move in policy circles (see Pérez de Cuéllar and Boutros Boutros-Ghali, both quoted in Glanville : f.). Yet, despite a perceived need to act in the face of mass violations of human rights, there was no international consensus as to what the parameters – be they legal or moral – of such actions were, as the widely different interventions of the s (Somalia, Rwanda, Bosnia, and Kosovo) show. Gareth Evans has concisely summed up the situation:
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The s was the decade in which every one of the central questions surrounding humanitarian intervention was, for the first time, exposed with real clarity. But it ended with absolutely no consensus on any of the answers. Every general discussion in the UN General Assembly and other international forums, and nearly every difficult individual case that arose, became a political battlefield with two warring armies . . . Battle lines were drawn, trenches were dug, and verbal missiles flew. The debate was intense and very bitter, and the twentieth century ended with it utterly unresolved in the UN or anywhere else. (Evans b: )
.
Duties Rather than Rights: Sovereignty as Responsibility
The crucial move in twisting the principle of sovereignty away from granting states absolute and exclusive prerogatives, to borrow BoutrosGhali’s language, and giving instead priority to ‘the rights of the individual and the rights of peoples’ (Boutros-Ghali in Glanville : ) came with Boutros-Ghali’s appointment of Francis Deng as Representative to the Secretary-General on Internally Displaced Persons. The appointment itself represented a break, as internally displaced persons (IDPs) had traditionally not been a concern of international law, as they fell within the purview of sovereign states. The fact of crossing a state border was the constitutional act of the refugee, and what also made refugees an international concern. A focus on IDPs therefore already heralded a weakening of absolute sovereignty in favour of individuals. In this context, Deng’s most important contribution was perhaps the work he undertook to link the concept of state sovereignty to that of state responsibility. Within the institutional framework of the Brookings Institution, Deng worked with Roberta Cohen to construct a framework which would make IDPs a matter for international concern. The conceptual innovation of Deng and his associates came under the term ‘sovereignty as responsibility’ in (Bellamy : ; see also Weiss and Korn ). In order to address the barrier posed by the invocation of sovereignty, Deng sought to rearticulate sovereignty, yet at the same time nest this rearticulation on a traditional understanding of the principle. Their starting position was thus as powerful as it was remarkably uncontroversial, as it was one of the key propositions flowing from the principle of state sovereignty, namely that the states themselves had the primary responsibility for the well-being of their population. As Deng et al. stated, ‘[t]he premise of the normative argument . . . is to recognize internal conflicts and their consequences as falling within the domestic jurisdiction and therefore national sovereignty of the country concerned’ (Deng et al. : ).
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Twisting Sovereignty: Security and Human Rights
Yet, Deng et al. went further, introducing the question of accountability: ‘However, it is also recognized that sovereignty carries with it certain responsibilities for which governments must be held accountable’ (ibid.) – a clear break with the understanding of sovereignty as absolute political authority. Deng was successful in rearticulating sovereignty largely because this aspect was not strongly emphasised. Instead, most of the focus lied on the rather unproblematic notion that sovereigns had responsibilities. Rereading Deng, it is clear though that much of the conceptual work that would be undertaken a few years later by the ICISS had already been broached by Deng and his associates in the mid-s. Indeed, they advanced that governments ‘are accountable not only to their national constituencies but ultimately to the international community. In other words, by effectively discharging its responsibilities for good governance, a state can legitimately claim protection for its national sovereignty’ (ibid.). Sovereignty was thus tweaked so as to hinge upon internal good governance according to liberal principles, and states were argued to be accountable to the international community (see Chandler for a discussion). This was a double move by Deng. On the one hand, he made sovereignty less of a legal question than one of ethics. On the other, he solved the question of who was the fundamental bearer of rights internationally in favour of individuals and at the expense of states. Once the inviolability of sovereignty was done away with, Deng addressed the relative importance of states and individuals: ‘Quite apart from the individual orientation of the universalizing values behind the human rights movement, it can be argued that even in the indigenous African value system, the individual is ultimately the core of the social order’ (: ). Basing this argument of indigenous African values was a tactical attempt to curtail criticism from G countries, who rejected these innovations on the grounds that they were based on Western customs and values (ibid.). The novelty in Deng’s approach was the explicit linkage of sovereignty and responsibility. By doing so, Deng was able to shift the debate from being about the rights of states vis-à-vis those of individuals to one about the rights of individuals and the duties of states. This started the process of disenfranchisement of sovereign states which would continue with the concept of RP.
. Enter RP and International Responsibility Once sovereignty had been twisted to imply responsibility within the framework of the UN’s work with IDPs, the challenge remained to redefine this responsibility in broader terms, and what rights a state’s
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failure to uphold its duties or responsibilities would grant the international community. As shown in the previous section, this was not the first time the connection between the rights and duties of sovereign states were linked to the concept of responsibility. For a while responsibility provided the overall background to Our Global Neighbourhood, the report itself had a much broader concern and is not an acknowledged reference in accounts of the origins of RP. Kofi Annan pushed to tear down the walls represented by sovereignty in regimes which did not live up to human right standards, in the Millennium Report, asking the question, if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we then respond to a Rwanda, a Srebrenica – gross and systematic violations of human rights that affect every precept of our common humanity? (Annan : )
The report attempts to answer this by declaring that in spite of the inherent dilemmas of humanitarian intervention, as well as the vital protection the norm of sovereignty provides for weaker states, no legal principle—not even sovereignty—can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community. (ibid.)
Yet, while the Canadian government responded to Anan’s call with a Commission aimed at rewriting the rules of sovereignty in order to allow for a more lenient approach that would enable more intervention, there was no consensus amongst UN Member States at the time. Algeria as well as China spoke out against humanitarian intervention to protect small and weak countries (cf. Coleman : ). Similarly, Russia insisted to the UN General Assembly that new norms should evolve through a collective process rather than being imposed ‘as a fait accompli’ (quoted in Coleman : ). Nor did the USA come over with much support. In fact, the USA had refused to support the British in establishing guidelines for intervention in the aftermath of Kosovo (ibid; Wheeler : ). Canada’s active role in the case is referred to as its ‘position . . . in the Rwandan genocide, to which it had a special connection through UNAMIR’s Canadian Force Commander [Roméo Dallaire], whose testimony helped generate public support for the principle of humanitarian intervention’ (Coleman : ). It received explicit support of a number of other Western countries, including the United Kingdom, France, and Germany.
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Twisting Sovereignty: Security and Human Rights
It should be noted that RP is not the only instantiation of the concept of responsibility in international security within the UN system. In , Kofi Annan had in his report Protection of Civilians in Armed Conflict, called for the establishment of a ‘culture of protection’ in order to reorient UN peacekeeping to its core activity (see Vogt et al. ): the protection of civilians. Annan stated that ‘[g]overnments would live up to their responsibilities, armed groups would respect the recognized rules of international humanitarian law, the private sector would be conscious of the impact of its engagement in crisis areas, and Member States and international organizations would display the necessary commitment to ensure decisive and rapid action in the face of crisis’ (S//). Thus, when the Canadian-sponsored ICISS met for the first time in Ottawa in November , co-chaired by Gareth Evans and Algerian diplomat Mohamed Sahnoun, it was generally regarded that protection was seen as the key concept to ensure the UN could fulfil its mandate with respect to international peace and security. ICISS presented its Responsibility to Protect report to Kofi Annan in December . The report offered a reframing of sovereignty by insisting through ‘sovereignty as responsibility’ that sovereignty was first and foremost a duty to uphold the welfare of its citizens rather than a right of non-interference. Cases of inability or refusal to live up to these duties triggered a right to intervene and react to these violations. In order to avoid criticism for being overly interventionist, the report also insisted that the responsibility to react had to be followed by a responsibility to prevent and to rebuild (see Coleman : ). In the same vein, intervention was to be limited to large scale mass atrocities; four of seven acknowledged that principles of the just war tradition were to guide international action: right intention, last resort, proportional means, and reasonable prospect of success (ICISS : –). The question of right authority, which Tony Blair had sought to circumvent a few years earlier in the case of Kosovo, was reaffirmed, though twisted. The UN Security Council was to have full authority yet, should it reach a deadlock, the UN General Assembly was to take over this authority from it. The crucial move of the ICISS was to deny the rights of states wholesale in cases of grave breaches of human rights, placing all the rights squarely on individuals. In that sense, the ICISS did not show a way ahead by solving the dilemma between the rights of states and collectivities; they ignored the dilemma altogether. In Evans words, The relevant perspective, we argued, was not that of prospective interveners but of those needing support. If any ‘right’ was involved, it was of the
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victims of mass atrocity crimes to be protected. The searchlight was swung back where it should always be: on the need to protect communities [sic.] from mass killing and ethnic cleansing, women from systematic rape, and children from starvation. (Evans b: )
The second claim of the ICISS was, building on Francis Deng’s understanding of sovereignty as responsibility, to make the case sovereignty should now be seen not as ‘control’, in the centuries-old Westphalian tradition, but, again, as ‘responsibility.’ The starting point is that any state has the primary responsibility to protect the individuals within it. But that is not the finishing point: where the state is unable or unwilling to meet its own responsibility, through either incapacity or ill will, a secondary responsibility to protect falls on the wider international community to step in, by whatever means is appropriate to the particular situation. (Evans b: )
Where the s had witnessed a number of attempts at overcoming the sovereign impasse in order to establish a right to intervene, none of them had made any clear headway, and few ended up leaving a clear mark in practice. In contrast, the ICISS report gained immediate attention, as the RP phrase became a way to reframe the debate about intervention. Many reasons account for this success, including the extent to which the ICISS tapped into prior discourses and rearticulations such as Deng’s ‘sovereignty as responsibility’ in order to make its RP catchphrase. Perhaps more important was the coordination between key actors in the process. A central element was that it was made to look as if it was an initiative which bridged the divide between the Global South and the Global North. Being recognised as a Western liberal coalition ‘would be counterproductive’. Contacts between Western states and actors were therefore ‘deliberately discreet’ because although the ‘ICISS was undisputedly a Canadian initiative . . . it was politically crucial to stress that there was “nothing precooked” about the Commission’s report, that is, that neither Canada nor any of the other Western states was driving its findings’ (Coleman : ). Therefore, about half the commissioners were selected from non-Western countries, and the research team was multinational. Furthermore, consultations were held in Ottawa, Geneva, Maputo, Washington DC, Santiago, Cairo, Paris, New Delhi, Beijing, and St. Petersburg (ibid.). Yet, the overall coherence of the report was ensured by Ramesh Thakur (Indian born, but Canada educated), Michael Ignatieff (Canada), and Gareth Evans (Australia), and ‘it was Evans himself who first identified the term “responsibility to protect” as a way of reconciling the principles of human rights and state sovereignty’ already in January
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Twisting Sovereignty: Security and Human Rights
, only a few months into the work of the Commission (Bellamy : ). As a key to the success of RP, Coleman also highlights the tight links – or ‘alliance’ – between the ICISS and UN Secretary-General Kofi Annan (Coleman : –). Just as RP had been conceived as a solution to Kofi Annan’s rumblings about the conundrum between sovereignty and human rights, Annan also took ownership of the answer offered by ICISS.
.
Twisting Sovereignty: The World Summit and Beyond
The ICISS report did not in and of itself lead to the adoption of RP as a binding rule or a principle calling for action. The ICISS proposed one way of twisting sovereignty in order to limit the rights of states involved in mass atrocities through focussing on the double responsibilities of states and the international community, yet it was by no means perceived as a universal solution for the dilemma between the rights of individuals and the rights of states. Just as it was Kofi Annan’s call for addressing this dilemma in in the Millennium Declaration which had given the Canadian government the opportunity to push the focus away from the rights of sovereignty to its duties, once again it was Annan who gave the impetus to move beyond the ICISS report (Bellamy : ). In fact, as Katharina Coleman has argued, without support from what she calls ‘Minervian powers’ – understood as advanced industrial democracies with significant economic and military clout, yet also a strong commitment to multilateralism and norm construction – the debate about RP ‘would have ended in a reaffirmation of the inviolability of state sovereignty’ (: ). While the ICISS report launched the concept of RP, the exact status of the principle remained unclear. Although a number of advocates sought to make the case that RP was central to international law and that states, through interventions such as the war in Kosovo in , had already acknowledged in practice to RP being part of customary law, the case remained unclear (see Welsh and Banda ). Apart from some Western states, few states wanted to commit to the principle, as most of them perceived it as too interventionist, especially following the US invasion of Iraq (see Leira and Kaspersen ; de Carvalho and Lie , ; Lie and de Carvalho ). Annan thus appointed Evans to the High Level Panel mandated to come up with recommendations for reforming the UN to better respond to new challenges. These recommendations were to be put in front of the UN General Assembly at the UN World Summit. ‘Evans succeeded in persuading
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the panel to incorporate the RtoP. In its December report, the panel endorsed the “emerging norm that there is a responsibility to protect” and confirmed the developing consensus that this norm was “exercisable by the Security Council”’ (Bellamy : –). But as Bellamy points out, ‘the adoption of the RtoP was in no way assured and took persistent advocacy on Evans’s part’ (Hannay ; see also Bellamy : ). As shown, not only did the concept meet fierce resistance, but it was also launched just after the attacks of September, in a climate in which Western intervention seemed largely decoupled from human rights with terrorism taking up most of the international agenda (see Evans ; Leira and Kaspersen ). Against this historical backdrop, RP’s adoption by the World Summit in is all the more remarkable. In fact, it was due not to a surge in international support, but rather to a small group of devoted activists who managed to steer the discussions of Kofi Annan’s High-Level Panel on Threats, Challenges and Change (HLP) to include RP in advance of the summit. The panel conducted a series of consultations before concluding in its report that they ‘endorse the emerging norm that there is a collective international responsibility to protect’ when ‘sovereign Governments have proved powerless or unwilling to prevent’ (High Level Panel : ). There was no international consensus on RP at the time, and the fact that RP was endorsed by the HLP was more a result of Gareth Evans’ advocacy as one of the members of the panel than a reflection of RP’s standing on the international agenda in (Leira and Kaspersen : ). In fact, Evans ‘was instrumental in persuading [the panel] to endorse R’ as ‘[h]is influence on Panel deliberations eclipsed that of [Canada,] RP’s most ardent state supporter’ (Leira and Kaspersen : ; Coleman : ). While Canada had submitted a non-paper to inform about RP, a member of the secretariat commented that HLP ‘didn’t need a Canadian non-paper to know what RP was. We had Gareth Evans on the Panel’ (in Coleman : ). RP did encounter resistance from members of the panel, but this resistance was not substantial enough to rid the report of the concept. In fact, Tanzania’s former OAU SecretaryGeneral Salim Ahmed Salim came out in favor of RP, which ‘denied RP critics the only alternative moral high ground, which was the position of defenders of the sovereignty of vulnerable developing states’ (Coleman : ; see also Glanville ). This process culminated with the unanimous adoption of a wording close to RP in paragraphs and of the UN’s World Summit. Again, as it had taken Canadian entrepreneurship and Australian leadership through Gareth Evans to push
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Twisting Sovereignty: Security and Human Rights
for the RP agenda, once again it was Evans who took the lead in advancing the RP cause. As Leira and Kaspersen have noted, ‘no government took a lead, with the notable exception of Canada, which took upon itself to further the “Responsibility to Protect” agenda’ (: –). As Bellamy notes, ‘Evans was instrumental in persuading Kofi Annan’s HighLevel Panel to adopt the RtoP principle’ (Bellamy : ). In fact, ‘[h]aving devised the principle, Evans went on to play the role of “norm entrepreneur”. He helped protect the RtoP from the fallout over Iraq and then ensured that it was placed on the agenda at the UN World Summit’ (Bellamy : ). Making it into the HLP report was crucial for RP, as this report was the basis for Kofi Annan’s own report to the World Summit, In Larger Freedom (Annan ). As Evans has noted, ‘The crucial next step was for the High-Level Panel’s recommendations to be picked up in the secretarygeneral’s own report to the summit, designed to bring together in a single coherent whole all the credible UN reform proposals in circulation, in particular from our panel’ (Evans b: ). Again, the process leading up to the World Summit was an initiative of the UN Secretariat rather than a broad discussion among member states. Thanks to solid support from Canada and ‘like-minded states’ Kofi Annan was able to continue his strenuous advocacy as Secretary-General for RP as then–Canada’s UN Ambassador stated (in Coleman : ). The version of RP which emerged, though, was one much less potent than in the ICISS report itself, as it was decoupled from specific guidelines on the use of force as such a concept would not have had the support of other permanent Security Council members apart from the United Kingdom (Coleman : ). At the World Summit itself, RP came under fire. While it did have the support of most Western states and key states in the Global South such as South Africa, Mexico, and Rwanda, the reason why the Summit endorsed a modest version of RP – what Bellamy calls ‘one of the few real achievements of the UN’s World Summit’ (Bellamy : ) – was the fact that RP was coupled with a bundle of other issues in the negotiations. Less than twenty-four hours before the adoption of the outcome document, member states were faced with a ‘take-it-or-leave-it’ deal, and many states associated with the NAM and G groupings felt they had no choice but to acquiesce to the package deal – on whose adoption other priorities hinged (for a detailed account, see Leira and Kaspersen ). As the Ambassador of Cuba pointed out, ‘it took a lastditch, undemocratic, non-transparent act to bolster the UN’s aspirations
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towards democracy, transparency, and efficiency’ (quoted in Leira and Kaspersen : ). As Pollentine also notes, ‘a running sore throughout the negotiations was a feeling – among G and NAM countries – that their voices were either being ignored, or failing to shape the negotiations in the way they might have expected’ (Pollentine : ). In this process, as key ambassadors have confirmed, due to the constant advocacy by Canada and Gareth Evans, RP ‘snuck’ into the document and ‘slipped by’ (Pollentine : ). As a member of the Secretariat has put it, ‘RP by itself would never have been endorsed in a resolution of the General Assembly. But the fact that it came in a huge package, where many countries were focused on other things, and had other battles to fight . . . it got through in the end’ (quoted in Coleman : ). Coleman insists that support from the Secretariat itself was crucial in keeping RP on the table. The final package, which had only just been rewritten on the eve of the Summit, was presented to the General Assembly by its president Jean Ping on a ‘on a “take-it-or-leave-it” basis. The facilitators’ text on RP remained intact in this process, effectively overruling the remaining state objections’ (Coleman : ). Although unanimously endorsed, RP was still far from universally accepted, as RP had met resistance and opposition in the phase leading up to the World Summit. In fact, the final text of the Outcome Document was agreed only at the very last minute, and only after the UN Secretariat had shown ‘an absolute determination on our side to have the concept included, at the cost of dropping everything else’ (John Dauth, quoted in Bellamy : ). Insiders to the process found it ‘surprising’ that RP made it into the final Outcome Document, as the opposition to it had led them to believe that it would ‘never come to pass’. That RP managed to survive the process was not a sign of its broad support among member states, but rather a testimony to the sustained efforts of Kofi Annan, the Canadian government and Gareth Evans (Leira and Kaspersen : ).
. Conclusion Part of the success of RP was due to the elegant way in which it twisted understandings of sovereignty so as to bypass the deadlock between proponents of the inviolability of sovereignty and those putting the rights of the individual at the centre of international politics. Yet, this conceptual twist did not come without arm-twisting. As I have showed, the strong backing by Canada and the ability of its proponents to be at the centre of international negotiations strongly accounts for the rise of RP. This
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Twisting Sovereignty: Security and Human Rights
activism led in to the unanimous yet very cautious adoption of the policy norm at the World Summit. As such, rather than being the institutionalisation of evolving yet interspersed practices of protection heralding a coherent view of international authority as Ann Orford () argues, I have sought to show the extent to which RP was the outcome of strategic discursive moves, as well as political positioning when negotiating it. The meaning states attach to RP as a policy norm remains widely contested – as was the case during the World Summit. In fact, many of the developments beyond the World Summit have given rise to increasing scepticism towards RP as merely yet another cover for Western imperialism. The NATO intervention in Libya was authorised through a UNSC Chapter VII mandate with reference to the protection of civilians and thus heralded by many as the first full instantiation of states’ collective responsibility to protect and the responsibility of individual states for the protection of its population. Yet, as The New York Times recently emphasised, regime change in Libya, rather than RP, was the key driver of the US policy in Libya under Secretary of State Hillary Clinton (Mohamed ; Heinze and Steele ; see also Becker and Shane ). Rather than making the case for RP, the intervention in Libya has made non-Western states warier of the ways in which responsibility may in fact be a cover for other interests. As Ulfstein and Christiansen have argued, while some NATO activities in Libya were covered by the UNSC mandate, overthrowing Qaddafi was clearly illegal. In their view, ‘[t]he overstepping of the mandate may have a negative effect on the credibility of the responsibility to protect in future gross human rights violations’ (Ulfstein and Christiansen : ). Others have seen what may in fact be the demise of RP as predicated on broader structural trends in international politics, making the case that RP was predicated on the unilateral moment. In such a view, the recent rise of China and Russia is what heralds the end of RP, irrespective of actual policies (GarwoodGowers ; see also Murray and Hehir ). Whatever the case may be, it is clear that the way through which RP was acknowledged in without any firm commitment, contributed to reinforce its character of being a Western construct against which it was in the best interest of the G and NAM countries to oppose (see the discussion in Welsh ). RP was a creative way to merge the concepts of international rights and duties in order to affirm the duties of states to protect (sovereignty as a right of states, yet first and foremost a cluster of duties towards its population) as well as the rights of the international community to intervene. Yet, in so doing, the concept of responsibility did not help clarify the
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distinction between the rights and duties of states. Instead, while containing a call to duty for action in the face of mass violations of human rights, RP also gave some states the unapologetic right to interfere within the sovereign sphere of others. As discussed, the linking of sovereignty with a right to intervene is not new (see Glanville ). Yet, favouring RP because a similar understanding can be found in political theorising even before the state misses an important point about the historical development of international politics, namely that most states in the world were born precisely during that exception of the Cold War, and that this being the international society they were born into, it was also the deal they signed up for. As I have argued here, RP was an innovation of the s which rested on important interventions in the s. Seeing it in a longer perspective, while giving RP a longer pedigree, also links the concept to historical periods such as the nineteenth century, when not every state was entitled to be a full-fledged member of the family of civilised nations, and sovereignty was no guarantee against imperial interventions.
Notes This chapter has greatly benefited from comments by the editors, reviewers, and editorial assistance from Amanda Cellini. In addition, Simon ReidHenry, Maria Gabrielsen Jumbert, Halvard Leira, Kristoffer Lidén, Jon Harald Sande Lie, Kristin Sandvik, Niels Nagelhus Schia, and Ole Jacob Sending provided valuable input along the way. I am also grateful for funding from the project ‘Protection of Civilians: From Principle to Practice’ funded by the Research Council of Norway under grant number to undertake parts of the research. All faults remain my own. The framing of this debate in terms of responsibility goes further back to the efforts by Willy Brandt to find common grounds for global governance in the post–Cold War era. As Luke Glanville () has argued, such an interventionist view of the rights of the ‘international community’ is not new. In fact, as he claims, it may very well be that the non-interventionism against which RP was cast was a Cold War exception, and that powerful or Western states have always maintained intervention as both their right and duty. Parts of the discussion of early initiatives rests on the overview provided in de Carvalho and Schia (). Concerned chiefly with the developments of RP here, I will not dwell on the parallel establishment of the Protection of Civilians (POC) agenda, which was more concerned with protection in ongoing missions than with the parameters for allowing international action based on the collective responsibility of states. For more on POC, see Lie and de Carvalho (); de Carvalho and Schia (); Lie and de Carvalho (); de Carvalho and Sending ().
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Negotiating Responsibility in Conventional Weapons Disarmament Adam Bower
. Introduction The regulation and, more rarely, elimination of conventional weapons has emerged as an increasingly dynamic field of global governance. Building on sporadic developments over the past century and a half, recent decades have witnessed a comparative flurry of activity that saw the conclusion of binding prohibitions on anti-personnel mines and cluster munitions, and regulatory regimes for explosive remnants of war and the global arms trade, among others. Reflecting on these developments, the International Committee of the Red Cross (ICRC ) has stated that ‘[t]hese achievements demonstrate that States can and must set the limits at which “the necessities of war ought to yield to the requirements of humanity” . . . They demonstrate that humanity is not powerless in the face of the harmful effects of the technologies it creates’. Yet limitations on the employment of armed violence may reduce the capacity of the state to defend itself and pursue its national interests and would therefore seem to clash with a realist conception of national survival as the highest political imperative. Many states have resisted invasive legal restraints on precisely these grounds, raising important questions as to the potential efficacy of such initiatives. For this reason, international disarmament processes serve as potent sites of contestation over the meaning and limits of responsibility in world politics. This concerns both the content of good conduct and the subjects to which such claims can be ascribed: what does it mean to behave responsibly in the use of armed force, and for what actions can one be held responsible; who gets to set these standards, and thus count as a responsible member of international society; and to whom are obligations owed? I contend that contemporary international society exhibits two competing visions with respect to restraints on conventional weapons. While these perspectives share a moral objective of preventing unnecessary suffering
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from the use of military technologies, they diverge dramatically in their causal claims concerning the origins of humanitarian crises and, consequently, how far the freedom of state conduct should be constrained by concerns for the impact on vulnerable populations. Despite enduring disagreement, it is nonetheless possible to discern a shift from a broadly permissive view of weapons as tools for the legitimate pursuit of national interests, to one in which an increasing focus is given to their humanitarian impact, with a consequent reversal of the benefit of the doubt previously accorded to military imperatives. As other contributors to this volume have also noted (including de Carvalho, Chapter ), this change involves a fundamental reinterpretation of the meaning of responsible statehood that increasingly regards sovereignty as conditioned by responsibilities to one’s own citizens and humanity more broadly. The movement to ban anti-personnel (AP) mines is emblematic of this wider process. The Mine Ban Treaty (MBT) represents the first comprehensive legal prohibition of a formerly ubiquitous weapon (Goose et al. : ), and thus offers a key lens for evaluating the way in which responsibility has unfolded as a social practice. Most generally, efforts by transnational civil society – in the form of the International Campaign to Ban Landmines and the International Committee of the Red Cross – and a ‘core group’ of governments – such as Canada, Mexico, Norway, and South Africa – to eliminate AP mines feature both moral and causal responsibility claims (Miller ). A minority of states – notably major military powers such as China, India, Iran, Israel, Russia, and the United States – have resisted a binding prohibition by invoking an alternative account of responsible behaviour that seeks to retain the weapons within the parameters of legitimate warfare. Yet despite this contestation, international practice now reflects a powerful opprobrium associated with the weapons, as evidenced by their widespread abandonment in warfare and the associated discursive endorsement of the ban norm. Importantly, this transformation is not limited to MBT members, and forms of informal accommodation are evident among non-party states including most notably the United States. While the status of responsibility remains unsettled, therefore, being recognised as a responsible participant in warfare increasingly requires the abandonment of specific technologies in order to meet revised criteria of humanitarian protection. In making this case, I advance three core arguments that echo themes introduced by Vetterlein and Hansen-Magnusson in this volume (Chapter ). First, invocations of responsibility are necessarily normative in that they
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Negotiating Responsibility, Weapons Disarmament
involve claims about socially appropriate behaviour. My focus is on how such processes have played out through the development of multilateral legal institutions. International law holds a privileged position in the spread of responsibility discourses because it offers a dominant language for articulating rights and duties in the contemporary international system (Reus-Smit ; Brunnée and Toope ). For this reason, actors tend to frame their engagements in reference to existing legal rules and seek to build new social understandings by ‘grafting’ nascent norms onto more established standards (Price : ; : ). Second, the invocation of responsibility is intimately bound up in political processes of recognition, and with them the demarcation of communities of membership for whom the criteria of responsibility are both meaningful and applicable. Participation in the regulation of warfare – an activity that has become increasingly legalised over time – has long served as a primary criterion by which membership in international society is adjudged. This can also lead to the marginalisation of certain actors within international society. Critical legal scholars, for example, have pointed to how the development of modern international law was underpinned by a distinction between a privileged ‘civilized’ minority of Western states and their ‘barbarian’ subjects that had to first fulfil externally imposed criteria before they could be admitted as members of the club of sovereign states (e.g. Koskenniemi ). As the reach of formal, territorially defined statehood has expanded globally, this process has come to focus on so-called rogue or outlaw states and non-state armed groups as outsiders to the dominant liberal norms that constitute international society. Finally, conceptualising responsibility as a social practice draws attention to the diverse sources of entrepreneurial agency that may be deployed to reshape world politics. As an intersubjective phenomenon, responsibility cannot be unilaterally asserted but must be collectively negotiated: communities thus provide the venue for negotiating the meaning and application of responsibility. The chief protagonists in global disarmament engage in different practices of responsibility, ranging from justification and preventive thinking to enforcement, reflecting differing perspectives on the nature and causes of the governance challenge and appropriate solutions. These processes are often dominated by the leading powers who possess a range of coercive, instrumental, and diplomatic resources by which to shape institutions. Yet the social structure of international law can also provide a means by which less materially powerful actors can advance claims in the international system (generally: Barnett and Duvall
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; Bower ). It is the interaction of these forms of power that I seek to illuminate in this discussion.
. Constituting Responsibility: The Laws of War as Civilised Violence Assertions of responsibility imply the voluntary acceptance of limitations on one’s freedom of action, and thus the individual or collective self-denial of potential advantages. The development of the laws of war – now frequently referred to as international humanitarian law – has from its inception been imbued with an ethos that seeks to ‘humanize’ warfare via a gradual expansion of expectations concerning acceptable and unacceptable conduct on the field of battle (Mujezinović Larsen et al. ). This system of rules is defined by its attempt to maintain a delicate balance between acknowledging the needs of combatant forces while mitigating harm to belligerents and civilian non-combatants. In its essence, therefore, the responsible use of armed violence requires that belligerents limit the destruction of life and property to the minimum necessary to achieve military objectives (Dinstein : ). The modern laws of war are constituted by four core principles. The most fundamental of these, as articulated in Article of the Hague Convention IV of and reiterated subsequently, states that ‘[t]he right of a belligerent to adopt means of warfare is not unlimited’. This general duty towards restraint confirmed an already existing view that, in the words of the St. Petersburg Declaration, ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’. This is the crux of any articulation of military necessity (Solis : –). Warfare is in essence a socially sanctified form of destruction, and it must therefore be detached from other realms of human activity where such actions would constitute grave violations of the social order. For this reason, the principle of discrimination seeks to distinguish between legitimate subjects for attack (combatants and military resources) and those to be protected (civilians) (Solis : –). International law does allow that civilians as well as combatants will be harmed as a consequence of war, but in both cases, military actions must be proportionate – that is, not excessive in their destruction of life and property – ‘in relation to the concrete and direct military advantage anticipated’. (Additional Protocol I : Article .(b)). Finally, while permitting deliberate violence against certain classes of people, the laws of war prohibit the use of means and methods of warfare that cause
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Negotiating Responsibility, Weapons Disarmament
superfluous injury or unnecessary suffering. This does not imply an injunction against any, even potentially great, harm: ‘The effects of the use of certain weapons may be appalling, but this is not, “in and of itself, enough to render these weapons illegal”. A weapon is proscribed only if it causes injury or suffering that can be avoided, given the military constraints of the situation’ (Dinstein : –). The interpretation and application of these core principles is not straightforward, however, but is contested across time and space. Discourses of responsibility in warfare are bound up in the subjective judgements of policymakers, civil society movements, and public opinion concerning the nature and consequences of specific military technologies (Solis : –). Whether intended or not, efforts at characterising particular weapon systems as unacceptable has the reciprocal effect of rendering permissible other forms of violence. Defining the parameters of acceptable conduct in war has equally involved social processes of recognition in identifying legitimate members of international society to whom the rules apply. The development of modern international law was closely associated with the emergence of the centralised state and animated by a teleological conception of social progress rooted in modernity, rationality, and technology. The formalisation of the first laws of war from the mid-nineteenth century was shaped by the leading powers of the day, principally in Europe and the United States, though not all agreed on the desirability of rigorous restraints. Great Britain, Germany and, to a lesser extent, the United States were sceptical of placing substantial limits on warfare. Instead, the impetus for binding rules came from the Russian state – under the direction of Tsar Alexander II – which saw the promotion of international law as a means of asserting its own status as a modern civilised state (Mazower : ). More generally, therefore, international law in this period increasingly came to be regarded as both a referent point for ‘civilization’ and a tool by which civilised practices could be further refined and promoted. The language of law was thus employed as a potent means of perpetuating hierarchies among states and peoples: ‘At the top were assumed to stand the civilized – Europeans, or former European settler colonies. Below them stood “barbaric” powers like the Ottomans and the Chinese that had an institutional history and some state capacity. At the bottom were the “savage” peoples of Africa and the Pacific’ (Mazower : ). Professional standing armies were a defining feature in the creation of modern centralised states, and for this reason restraints on the practice of war were only reciprocally applicable among the armed forces of this
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limited community. This excluded both private, non-state forms of violence – such as pirates – and non-Western peoples – most especially those under colonial domination – as a whole from these protections (Kolb : –). These actors were held to be devoid of the characteristics of ‘humanity’ and therefore incapable of undertaking the reciprocal rights and duties that characterised the legalised practice of war. With the decolonisation movement of the mid-twentieth century, the privileges and responsibilities of legal statehood were extended to all recognised territorial states; yet informal social hierarchies among states and other actors remain a defining characteristic of the contemporary international system. The attribution of responsibility is therefore never value neutral, and calls to expand the scope of recognition to other actors – first to nonWestern states, and more recently to non-state armed groups – are politically consequential beyond the specific concern for the use of discrete weapons, as will be shown.
. ..
Two Views of Responsibility
Responsibility as Combatant Privilege: Regulation and the Legitimate Use of Weapons
A historically dominant regulatory approach begins from a generic conception of responsibility that emphasises the duty of states to ensure their survival, wherein national self-preservation represents the most fundamental moral obligation of the state. The proper objective of law, therefore, is to limit the ferocity of war and not to undermine its practice, since attempting to do the latter would excessively intrude upon a core feature of national sovereignty and invite failure. The laws of war as they have developed over the past century and a half have therefore privileged claims of military necessity and belligerent freedom of action in the first instance over concerns for maximising protections for the victims of warfare. In other words, responsible behaviour equates to pursuing military victory via the most efficient and least destructive means available given the prevailing conditions, in line with core principles of international humanitarian law. From this vantage point, efforts at seeking new limitations on the means and methods of warfare have typically stemmed from a complex mix of humanitarian and realpolitik motivations. Undoubtedly the ‘principles of humanity’ frequently referenced in treaties from the late nineteenth century onwards speak to a growing public concern for suffering as rapid technological change made warfare both more destructive and expansive in
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Negotiating Responsibility, Weapons Disarmament
its scope. In this respect, the early laws of war are part of a wider shift in popular views concerning cruelty and human suffering that also animated movements against slavery, child labour, and other causes. These initiatives were rooted in a moral discourse and frequently promoted by private individuals and transnational civil society before they were adopted by states. In the case of the laws of war, humanitarians like Clara Barton, Henry Dunant, and Florence Nightingale and organisations such as the International Committee of the Red Cross were of critical importance – an experience that is mirrored in the later emergence of the anti-personnel mine ban (Vagts : ). Rules were created in response to observed harm on the battlefield and were informed both by a causal assessment of the consequences of particular weapons and a more general sense of obligation to care for those who had suffered as the result of warfare. Hence dum-dum bullets, which flatten upon impact generating large and irregular wounds in the body, were adjudged to cause unnecessary suffering in victims that could not be justified in relation to their utility in combat. They were consequently banned in the Hague Convention (Coupland and Loye : –). At the same time, these intuitions were also forward-looking insofar as they sought to alleviate future harm wherever possible by restricting the means by eliminating especially egregious weapons from the menu of military options. This was the case with the much later prohibition on blinding laser weapons, the prospective use of which was deemed superfluous and inhumane despite the fact that the weapons had yet to be deployed in battle (Mathews and McCormack ). But exceptional cases notwithstanding, the much more common response has been to call for the judicious application of existing legal principles governing conduct in war, and the gradual extension of institutional restraints, rather than the wholesale elimination of classes of weapons. While the laws of war are animated by a generic duty of care to humanity in general, therefore, this is conditioned by a primary responsibility to one’s own citizens (ensuring their physical security and advancing the national interest), followed by other belligerents and civilian populations. War in this perspective remains a necessary and largely unavoidable tool of statecraft. Insofar as legitimate users of armed violence conform to the prevailing rules, moreover, they normally bear no direct personal responsibility with respect to redress and mitigation for past actions. The international law of weapons, as a rule, thus does not include expectations of liability or mechanisms for compensation. Perhaps unsurprisingly, major military powers have typically sought to maintain broad freedom of action as a means of preserving or extending
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their dominance in the international system or, in the case of aspiring powers, of gaining a ‘seat at the table’ through the development of comparable military capacities. In recent decades, countries like China, Egypt, India, Iran, Israel, Pakistan, Russia, and the United States have opposed restrictive rules such as those relating to the bans on antipersonnel mines and cluster munitions or efforts to substantially limit the trade in small arms and light weapons, arguing that the targeted weapons remain highly useful and legitimate instruments subject to more modest limitations. These states (and others) thus sought to resist growing calls in the mid-s for a global prohibition on AP mines by negotiating further restrictions on the use of the weapons. Amended Protocol II to the Convention on Certain Conventional Weapons (APII) embeds a set of obligations – most especially that minefields be properly marked and fenced, that their locations be recorded and the weapons removed after the end of hostilities, and that self-destructing and self-deactivating weapons are used where possible – as the most appropriate way to address the threat posed to civilian populations by anti-personnel mines. In short, proponents of a regulatory approach contend that AP mines can be employed in ways that respect the central IHL principles of discrimination, proportionality, and the avoidance of unnecessary suffering, while still recognising the prerogatives of military operations. To the extent that the weapons violate existing legal injunctions, their threat stems not from inherent properties of the technologies themselves, but from the agency of actors that do not abide by the established standards of civilised warfare. The attribution of responsible status, in turn, is profoundly shaped by the socially sanctioned monopoly on the use of armed violence enjoyed by states. Hence irresponsible action manifests in one of two ways: either through inappropriate use of weapons by state forces, or the employment of any violence by unrecognised armed groups. During the Bush administration, for example, the United States extensively relied on this discursive framing in its effort to promote an alternative regulatory regime for antipersonnel mines: Complicating the hazards posed by persistent, non-detectable landmines has been their employment by unprofessional, untrained and undisciplined militant groups that have often used landmines not as a weapon of war, but as a weapon of terror. Professional militaries operating in accordance with customary international practice and/or generally accepted tenets of the laws of war . . . are required to record the locations of those areas in which they emplace persistent mines and must also clearly mark and monitor these areas in the field. This practice drastically reduces the risk posed to civilians.
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Negotiating Responsibility, Weapons Disarmament
Sadly, in the last thirty years rebel groups, terrorists, and unscrupulous governments have deliberately used mines against civilian populations. (Department of State, United States of America a)
This argument is politically consequential in two ways. First, it articulates conditions under which the weapons can be responsibly used within established legal limits, thus bypassing the need for their elimination. Second, the discursive construction shifts the responsibility for harm on to a set of actors that do not merit status as legitimate participants in warfare, thus further undermining their position in international society. .. Responsibility as Forbearance: Prohibition and Humanitarian Protection The general pattern has therefore been one of resistance to singling out weapons systems for particular opprobrium in all but the most exceptional cases. Yet in recent decades, partnerships between middle-power states and global civil society coalitions – such as the International Campaign to Ban Landmines, Cluster Munition Coalition, and Control Arms Campaign – have engaged in concerted norm entrepreneurship aimed at generating more expansive legal obligations and widening the range of actors to which these new norms would apply. These actors have sought to leverage the language of law to promote a revised view of the responsible use of weapons in which the demands of humanitarian protection are given precedence over concerns for military utility. The prohibitionary position is therefore characterised by a much broader and more diverse invocation of the language of responsibility. First, pro-ban constituencies have assembled a causal narrative marking out particular weapons as distinctly inhumane. In building support for a nascent ban on anti-personnel mines, the ICBL and ICRC drew together vast amounts of medical and socio-economic data concerning the humanitarian effects of AP mines on civilian communities in South East Asia, Africa, the Middle East, and Central America (International Committee of the Red Cross ; Price ; Williams and Goose ). It was demonstrated that an exceedingly high proportion of mine casualties were civilian, calling into question the weapons’ purported military role. This observation was further linked to the technical characteristics of AP mines: because the weapons were persistent (meaning that once deployed they remained armed) and could not distinguish between combatants and civilians, they by their very nature failed to observe the principles of discrimination and proportionality. The horrific nature of AP mine
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injuries also suggested that the weapons violated the injunction to avoid unnecessary suffering in war. Just as importantly, evidence compiled by the ICRC and distributed in conjunction with the ICBL was used to critically evaluate the operational deployment of AP mines in battle: AP mines were less decisive than often claimed, caused substantial ‘friendly’ casualties to the forces that initially laid the weapons, and were rarely used in a way that would respect the laws of war (International Committee of the Red Cross ; Gard, Jr. ). These findings further undermined the contention that AP mines remained essential features of land warfare and reinforced the claim that their effects were not the result of correctible mistakes – such as human error or wilful targeting of civilians – but were an inherent feature of the weapons themselves. Their use in any conceivable scenario was therefore de facto already illegal, and a legally binding prohibition would thus merely redress an ambiguity in existing law. Institutionally, the diplomatic move towards a binding international prohibition on AP mines was motivated by widespread dissatisfaction with the outcome of the – review conference of the Convention on Certain Conventional Weapons (CCW). As noted, Amended Protocol II to the CCW further regulated but did not eliminate AP mines, and was thus regarded by civil society and a ‘core group’ of committed states as ‘overly complex and insufficiently stringent to deal with the extent of the humanitarian crisis’ (Maslen : ). Ban proponents felt that the immediacy and depth of the threat required an unconventional approach to diplomacy, typified by the creation of an ad hoc negotiating forum to bypass typical consensus-based decision rules that favoured powerful states. The Mine Ban Treaty was successfully concluded in December and aims to establish a definitive norm against the weapons by banning their use, production, transfer, and stockpiling, and enshrining positive obligations to care for mine affected populations. The movement to ban anti-personnel mines engages both moral and causal forms of responsibility simultaneously. On the one hand, the prohibitionary approach shares the fundamental principles that animate international humanitarian law but seeks to extend their implications much further than the regulatory perspective. Advocacy by transnational civil society has involved a variety of pressure tactics including naming, shaming, and blaming (Price , ). For many states, the process of endorsing the ban has equally involved a reconception of fundamental
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Negotiating Responsibility, Weapons Disarmament
national interests, as will be shown shortly. These actors have thus come to acknowledge that their own moral commitments towards the victims of armed conflict extend to those affected by the use of now-taboo weapons. On the other hand, the particular impetus for the prohibition is found in a set of causal claims concerning the origins of humanitarian crises, as was already shown. To be a responsible participant in warfare thus requires the abandonment of specific technologies that may provide a military advantage under certain circumstances, but whose utility is outweighed by the anticipated harm. And since already existing damage can be traced back to previous actions, current or former mine users bear a more specific responsibility for mitigating suffering. The Mine Ban Treaty obliges both individual states and the international community collectively to address the ongoing physical, psychological, and socio-economic traumas caused by the use of these weapons by setting binding deadlines for the clearance of deployed mines and more general commitments concerning the care of mine survivors and their families (Bailey and Channareth ). While this does not involve the strict apportionment of blame or legal liability for past behaviour – i.e. negative responsibility – it does imply a more generalised, continuous duty of care to victims and thus positive responsibility. In this way, the treaty constitutes the focal point for a new standard of responsible behaviour in which states possess not only an obligation to eliminate AP mines from their arsenals but equally to provide assistance to affected populations to redress past and potential future harm. At the same time, this approach implies a substantial expansion in the range of subjects to which claims of responsibility and irresponsibility are applied and is controversial for this reason. The logic of a ban admits no differences in the identity of those using proscribed weapons, precisely because the adverse humanitarian consequences are regarded as inherent to the weapons themselves. This attribution applies not only to sovereign states that are the focus of traditional disarmament efforts, but equally to other actors that may employ armed violence. Indeed, since non-state actors are frequently implicated in grave human rights abuses, their incorporation within international governance schemes is vital to improving humanitarian outcomes. A key theme that emerges in the next section is the still-contested attempt to widen the sphere of responsible conduct to encompass armed groups that have previously been marginalised in such endeavours.
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. Responsibility and Anti-personnel Mines in Contemporary World Politics The advent of the Mine Ban Treaty has generated a potent new focal point for demonstrations of responsible statehood in international society, in which AP mines no longer feature as an acceptable means of pursuing security objectives (Bower : –). As of June , there are MBT State Parties, a figure that compares favourably against other multilateral initiatives such as Amended Protocol II, which has members. As Richard Price (: ) explains, in endorsing the ban ‘[m]any states have decided not that mines are not at all useful, but that their military utility is outweighed by their humanitarian costs, thus introducing a moral calculus into the definition of national interest’. This has been the case, most notably, for the nearly forty states that have joined the MBT during internal or foreign armed conflicts or periods of domestic political instability. This transformation in a core feature of state policy also occurred in states that came to be regarded as key champions of the mine ban – and hence allegedly easy cases for norm adoption – such as Canada, France, Germany, and the United Kingdom, all of whom were formerly major AP mine producers with long experience operating as part of US-led military coalitions. The available compliance data also points to a rapid abandonment of anti-personnel mines over the past two decades, as evidenced by dramatic declines in the use, production, and transfer of the weapons (International Campaign to Ban Landmines : –). This is true both for formal MBT parties, as well as non-member states. Most notably of all, the United States, though still a non-party state, has not used AP mines since the Gulf War – a period which includes intensive military operations in Afghanistan and Iraq in addition to numerous counter-terror operations around the globe – and has maintained moratoria on the export and production of AP mines since and , respectively (International Campaign to Ban Landmines ). The MBT is also now clearly enshrined as the global focal point for driving technical best practices and resources towards the proactive mitigation of AP mine harm, even among non-parties. The United States, for example, is far and away the largest donor to mine action programmes around the world (International Campaign to Ban Landmines : ). In this way, the notion of responsibility by the international community to mine victims and affected communities is now widely accepted globally.
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Negotiating Responsibility, Weapons Disarmament
International practice thus reveals a narrowing of the parameters for responsible action even among prominent holdout states. It should be recalled that the conclusion of Amended Protocol II was itself a direct response to emerging calls for a comprehensive ban on AP mines. This revised set of rules places new limits on the use of AP mines and thus represents a further constraint on military operations, albeit one that many states and civil society groups deemed insufficient. Major military powers like China, Russia, the United States, and other regional actors including Egypt, India, Iran, Israel, Pakistan, and South Korea (as well as a number of less powerful states) continue to insist on the utility and legitimacy of AP mines in defending borders or forward-deployed military units. Indeed, some have gone so far as to argue that the reliance on minefields as a passive form of defence can avoid the employment of other, more aggressive forms of violent force, and thus lead to more humane outcomes (e.g. Republic of Korea ). Yet these same states have expressed public support for the humanitarian aims of the ban and acknowledged a lineage between the MBT and prior IHL standards aimed at ameliorating the effects of warfare. For example: As a responsible member of the international community, China has always been a constructive participant in the process of international conventional disarmament and a staunch supporter of international efforts to address humanitarian concerns caused by [AP mines]. Given its national conditions and national defence needs, China still [can] not accede to the convention at this stage. However, China ascribes to the goal and principles of the convention and highly appreciates the humanitarian spirit embodied in the convention. (People’s Republic of China )
In this vein, leading military powers have identified AP mines as a significant and enduring threat to civilian populations, and endorsed the objective of their global elimination at some as yet unspecified future point (Second Review Conference of the States Parties to the CCW : , para. ). This attempt to reimagine the conditions for responsible use of AP mines, while at the same time accepting – even vaguely – a future without the weapons, has produced a form of discursive dissonance that has only increased the political pressure facing opponents of the mine ban. Most fundamentally, efforts to retain some scope for anti-personnel mines have reinforced the now-dominant view that AP mines should be singled out for particular censure amongst the wealth of ‘conventional’ weapons, thus further eroding their status among the menu of acceptable military
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technologies (Price : ). The United States is emblematic of this incremental shift in views (Bower, ). President Clinton was the first world leader to call for the eventual elimination of AP mines, and the United States was consequently an active participant in negotiations over a prospective ban but rejected the final treaty when it could not secure concessions to conform with US military requirements for the defence of the South Korean border (Clinton ). Yet engagement with the mine ban movement, and the attendant social pressures from state and especially civil society advocacy, has generated a gradual marginalisation of AP mines in US military doctrine. In announcing a revised US policy on antipersonnel mines in February , the Bush administration identified the persistence of AP mines as the source of threat to civilian populations, and asserted that a reliance on newer ‘smart’ mines would alleviate suffering caused by older technologies. [T]he President's policy focuses on the kinds of landmines that have caused the humanitarian crisis, namely persistent landmines . . . The evidence is clear that self-destruct and self-deactivate landmine munitions do not contribute to the grave risks of civilian injury that we find with persistent landmines that can and do, literally, wait for decades before claiming an innocent victim . . . In sum, the President's policy strikes an appropriate balance that accommodates two important national interests: It takes significant and comprehensive steps . . . toward surmounting the global problem caused by persistent landmines, while at the same time meeting the needs of our military for defensive capabilities that may save American and friendly forces’ lives in combat. (Department of State, United States of America b)
Moreover, the US policy extended to anti-vehicle mines, which are not encompassed within the MBT. For this reason, US representatives presented their proposed solution as a more comprehensive response to the actual sources of humanitarian harm (Department of State, United States of America a). This repurposing of the humanitarian discourse thus suggests one way that ambivalent states may challenge particular accounts of responsibility via an alternative configuration of principled and causal claims. The pro-ban constituency has naturally challenged this framing, arguing that the emphasis on persistence will not eliminate the threat to noncombatants and armed forces alike, and that alternative systems already exist that would bypass the need for anti-personnel mines of any description (e.g. Human Rights Watch ). Many other MBT non-parties have also been reluctant to endorse the technological solution proposed by
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Negotiating Responsibility, Weapons Disarmament
the United States, since it modifies the terms under which AP mines could meet the conditions of responsible use in a way that favours advanced militaries. The likes of India, Iran, and Pakistan have asserted that the elimination of AP mines first requires the increased availability of costeffective alternatives, but remain unwilling to accept a revised conception that would exclude persistent or ‘dumb’ mines while allowing other actors to retain their more sophisticated weapons. Despite the ongoing contestation, however, it is important to recognise the degree to which US policy has already been constrained by the international opprobrium surrounding anti-personnel mines. Social pressure led to deeper US participation in the mine ban regime under the Obama administration, which served as a deliberate symbol of a wider reengagement with multilateral institutions and international law (International Campaign to Ban Landmines ). This process culminated in a pledge that the United States will observe the obligations of the MBT – by abandoning the use of anti-personnel mines, refraining from assisting other states in acts that violate the treaty, and destroying mine stockpiles – in all circumstances other than with respect to the defence of South Korea. While still incomplete, this new position ‘represent(s) a further step to advance the humanitarian aims of the (Mine Ban Treaty) and to bring US practice in closer alignment with a global humanitarian movement that has had a demonstrated positive impact in reducing civilian casualties from (AP mines)’ (United States of America ). One key consequence of the strengthening mine ban norm, therefore, is to serve as an increasingly prominent marker of responsible behaviour within an international society – even among actors that have resisted the formal legal prohibition. Indeed, despite continued assertions to the contrary, what is most notable is the extent to which states have abandoned any effort to defend anti-personnel mines in their public diplomacy. This suggests that even officially hostile actors recognise the social costs associated with more explicit defiance and, inversely, the status benefits that may accrue through accommodation. This social process is further reflected, on the one hand, in efforts to widen the scope of the responsibility norm by extending its rights and obligations to previously ignored actors. The ICRC and Geneva Call organisation have consequently sought to engage non-state armed groups in the AP mine ban. The underlying motivation stems from a recognition that such actors are frequently implicated in violations of international humanitarian and human rights law, and thus play a crucial role in the spread of global norms while possessing at least the potential to respect
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international standards. This outreach appears to be paying dividends (Geneva Call ): fifty-three armed groups have signed Geneva Call’s Deed of Commitment that mirrors the multilateral legal ban on AP mines, while a variety of other groups have made unilateral pledges of restraint. Anecdotal evidence suggests that non-state armed groups frequently endorse the mine ban norm as a means of demonstrating their legitimate political status – i.e. that they accept standards of civilised behaviour in warfare, and possess the organisational capacity and authority to ensure compliance. On the other hand, discourses concerning compliance have also served to marginalise actors by challenging their potential to act as responsible global citizens. These social dynamics are evidenced in attempts to gain political advantage by attributing mine use to rivals, as witnessed in conflicts between Ethiopia and Eritrea, Cambodia and Thailand, Georgia and Russia, and Ukraine and the Russian Federation (Bower : –). The governments of Georgia, the Philippines, South Sudan, Sri Lanka, Sudan, Turkey, and Uganda (among others) have similarly blamed rebel groups for mine use within their borders. Yet accusations are only effective because the ban norm has become entrenched to such an extent that anti-personnel mines are now regarded as especially indefensible and observance of the prohibition is widely understood to constitute a basic condition of responsible statehood. Hence, ‘[b]eing a responsible State Party of the Ottawa Treaty, Ukraine remains adherent to its international obligations and is ready to undertake all necessary measures to destroy anti-personnel mines in mined areas under its jurisdiction. However, this could be done only after my country will regain control of the territory currently occupied by the aggressor’ (Ukraine ). The inclusion of non-state armed groups in the mine ban community has also been strongly resisted by some states out of a concern that it would confer unwarranted political legitimacy on these actors. Turkey has been the most vocal opponent in this respect, and has routinely criticised Geneva Call for its work with the PKK – a group that the Turkish state and many of its allies regard as a terrorist organisation (e.g. Republic of Turkey ). The complaint is based on three interrelated claims. First, international law confers rights and obligations on states, meaning that non-state actors are not accorded the status of legally recognised actors in the international system. Second, actors that challenge the state with extralegal armed violence are inherently illegitimate. Third, in any case, such groups are fundamentally incapable (whether for reasons of ideology or insufficient organisational capacity) of observing international norms.
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Negotiating Responsibility, Weapons Disarmament
For these reasons, the Turkish government has long contended that nonstate armed groups cannot be considered responsible agents worthy of recognition within civilised international society. Other states have been hesitant to engage with this discursive framing. At the present moment, the status of armed groups as potentially responsible members of the international community remains a matter of considerable dispute in contemporary world politics.
. Conclusion: The Future Politics of Responsibility Debates over the legitimacy of anti-personnel mines offer an illuminating window into the contemporary construction of responsibility in world politics. The competing perspectives just described begin from the same foundational principles of international humanitarian law but diverge with respect to their conceptions of the origins of observable harm and, consequently, the appropriate balance between military utility and humanitarian protection. The pattern of international practice suggests a rapid delegitimisation of AP mines in international society and a parallel erosion of the regulatory position. This is evidenced not only in forms of compliance and discursive endorsement, but also in less official modes of accommodation that reveal the subtle disciplining power of international norms. In the case of AP mines, therefore, we can see a pronounced shift from the ‘privilege’ to the ascendant ‘forbearance’ vision of responsibility that has clearly constrained the policy options of the vast majority of states. Yet even here the shift is not absolute but is a matter of degree. International norms are shaped and reshaped through successive practice. As a consequence, there exists a persistent tension, which provides discursive resources whereby actors can assert their preferred interpretation of responsibility and its policy implications. In other words, the nature of responsible behaviour with respect to the use of conventional weapons is subject to continual processes of interpretation and negotiation, a flexible and experimental governance set-up as described in the introduction to the book, even as the legal and ethical parameters appear to be converging towards a more restrictive view emphasising restraint. These processes continue to play out in diplomatic initiatives in a variety of related issue areas not addressed in this discussion, including treaties banning cluster munitions, mitigating the effects of explosive remnants of war, and imposing (modest) regulations on the global trade in small arms and light weapons, as well as nascent efforts to address depleted uranium weapons, robotic and autonomous weapons systems, and the use of explosive violence in urban areas. Recently, a multilateral treaty banning nuclear
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weapons has been concluded, without the support – and in the face of active opposition – from all of the declared nuclear power and their allies. To what extent has the pattern of an expanding and deepening conception of responsibility witnessed in the AP mines case also featured with respect to other weapons? In seeking to draw broader conclusions, future research on the evolution of responsibility should be guided by general findings in the IR literature. On the one hand, agency is vitally important to the social construction of responsibility, as has been shown. The mine ban case provides an important illustration of the social power of states and transnational civil society groups to shape the international agenda by leveraging international legal and moral discourses in their advocacy. Other recent cases have all shared a similar coalitional structure combining geographically diverse middle power states and transnational civil society as leaders in norm development (Bolton and Nash ). The application of social network analysis to TCS advocacy has further demonstrated that linkages between individuals and groups within a campaign profoundly shape what issues are adopted and the degree to which they proliferate internationally (Carpenter ). A productive avenue for future research would therefore compare the internal dynamics of diverse campaigns to unpack how conceptions of responsibility are developed and deployed. On the other hand, strategic framing matters to the success of entrepreneurship in the creation of responsibility discourses, as emergent subjects that can be persuasively connected to existing norms are much more likely to become widely respected international standards. Previous research has suggested that issue characteristics matter, with subjects that pose a direct physical threat to vulnerable groups or that undermine equal access to social and political goods being most likely to lead to successful development of new norms and – potentially – legal rules (Price : ). This was clearly the case in the mine ban example, as noted at length. But this may prove a more difficult fit in other instances, where the observed or prospective harm is more diffuse and harder to causally attribute to particular actors or behaviours. A variety of other potential factors may influence the prospects for legal and normative development, including the purported immediacy of the issue, the technical difficulty of proposed solutions, and the potential for self-enforcement via reciprocity (Price : –; Hafner-Burton et al. : –). Further comparative research would help to determine whether certain subjects are more or less susceptible to the type of norm building discussed here, and thereby contribute to a more holistic understanding of responsibility as an important phenomenon in world politics.
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Negotiating Responsibility, Weapons Disarmament
Notes In this chapter, I limit my discussion to so-called conventional weapons, thus excluding nuclear, biological, and chemical ‘weapons of mass destruction’. This refers both to ‘the process of reducing and eliminating certain weapons systems and the objective or end-state when a specific type of weapon has been abolished’ (Johnson : ). In light of space constraints, this chapter primarily focuses on responsibility in the context of state policy, and only offers a few more modest reflections on the application of the argument to non-state armed groups. The latter are becoming increasingly consequential to the spread and efficacy of norms regarding armed violence, however, and interested readers can consult recent scholarly works including (Bellal and Casey-Maslen ; Clapham ; Jo ; Murray ). Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on May (Amended Protocol II to the CCW). See: http://www.icrc.org/ihl/INTRO/. Bolton and Nash (: ) define middle powers as ‘relatively wealthy, small to medium-sized states, with no nuclear weapons and no permanent seat on the UN Security Council’. Prominent examples include Austria, Australia, Belgium, Canada, Chile, Denmark, Ireland, Mexico, the Netherlands, New Zealand, Norway, South Africa, and Sweden. By the mid-s, it was estimated that over seventy countries were infested with a total of – million mines (International Campaign to Ban Landmines : –). The initial members of the core group – which later expanded during the negotiation process – were Austria, Belgium, Canada, Ireland, Mexico, Netherlands, Norway, the Philippines, South Africa, and Switzerland (Maslen : and fn. ). Afghanistan, Algeria, Burundi, Central African Republic, Chad, Colombia, Cote d’Ivoire, Democratic Republic of Congo, Haiti, Iraq, Liberia, Namibia, Nigeria, the Philippines, Rwanda, Senegal, Solomon Islands, Somalia, South Sudan, Sudan, Turkey, Uganda, Ukraine, and Zimbabwe. Angola, Bosnia and Herzegovina, Cambodia, Eritrea, Ethiopia, GuineaBissau, Indonesia, Mexico, Niger, Peru, Serbia and Montenegro, Sierra Leone, Tajikistan, and Timor-Leste. Since the completion of this chapter, on January , the Trump administration announced that it was reversing the Obama-era landmines policy, thereby re-authorising the production and use of “smart” or “non-persistent” anti-personnel mines. As of June , there is no publicly available evidence that the US has resumed deployment of AP mines. For updated discussion see http://www .the-monitor.org/en-gb/reports//united-states/mine-ban-policy.aspx. As of June . See https://www.genevacall.org/what-we-do/. See footnote . For more detail about the move from perceiving sovereignty as authority to sovereignty as responsibility, see de Carvalho, in this volume.
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‘Coalitions of the Willing’ and the Shared Responsibility to Protect Toni Erskine
.
Introduction
There has been widespread support for the idea that the so-called international community has a remedial moral responsibility to protect vulnerable populations from mass atrocities when their own governments fail to do so. Moreover, military intervention may, when necessary, be one means of discharging this proposed ‘responsibility to protect’ or, more colloquially, ‘RP’. But where exactly is this responsibility located? In other words, which body, or bodies, can be expected to discharge a duty to safeguard those who lack the protection of – or, indeed, come under threat from – their own government? A particularly pressing context for this question arises when the United Nations (UN) is unwilling or unable to act, and there is no one state to fill the breach, no ‘agent of last resort’ to invoke Michael Walzer’s phrase (: ), along with all of the controversy and potential risks that he acknowledges reliance on such a protector entails. This chapter will examine ‘coalitions of the willing’, or temporary, purpose-driven, self-selected collections of states, and sometimes non-state and intergovernmental actors, as one (likely provocative) answer to this question. It will also explore how the informal nature of such associations complicates, and should inform, the judgements of moral responsibility that we make in relation to them. In pursuing both objectives, it will offer a practical and demanding account of shared responsibility in world politics. In relation to the broad endeavours surveyed in this volume’s introduction, this chapter will thereby tackle a particularly hard case for one of the fundamental tasks accompanying analyses of responsibility in world politics; namely, identifying moral agents (see Erskine : –, : , ). I have argued elsewhere that moral responsibilities can be borne by formal organisations such as states, transnational corporations (TNCs), and intergovernmental organisations, but that it is theoretically and
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‘Coalitions of the Willing’ Shared Responsibility
practically problematic to talk about the moral responsibilities of informal associations (Erskine : –, : ). In this chapter, I will begin by introducing coalitions of the willing as prominent, and challenging, examples of the latter category, before raising misgivings about my own rather stark distinction if it means that accounts of moral responsibility must be reduced to the members – or potential members – of such coalitions in a way that neglects the moral significance of their acting together. Prompted by these concerns, I will invoke important arguments of philosophers who address moral responsibility in relation to informal associations in domestic contexts and identify insights that can be taken from these positions to refine our expectations and evaluations of the actions associated with such collectivities in world politics. Finally, I will consider the particular implications of these insights for addressing how the widely espoused duty to intervene to rescue vulnerable populations can be understood in relation to coalitions of the willing. Perhaps most controversially, this analysis will lead to a proposal that, under certain circumstances, states and other entities each have a duty to contribute to establishing such an ad hoc association – and may be held to account when they fail to do so.
. Institutional Moral Agency and Coalitions of the Willing as a ‘Hard Case’ Judgements of moral responsibility are ubiquitous in world politics – whether prospective assessments regarding acts that ought to be performed and forbearances that must be observed, frequently voiced in assertions of duty and obligation, or retrospective evaluations of acts and omissions, most often articulated in charges of blame and accountability. Importantly, to be intelligible, such judgements must be directed towards entities capable of responding to ethical reasoning. In other words, they must be directed towards moral agents, or those bodies that possess capacities to contemplate, recognise the significance of, and ultimately execute different courses of action (Erskine : –). Overlooking those bodies that qualify as moral agents in world politics when considering how best to respond to crises, or mistakenly assuming that moral responsibilities can be borne by those bodies that do not qualify, each has detrimental consequences. Such missteps hamper attempts to consider, coordinate, and execute remedial action effectively and robustly. They also result in missed opportunities to determine what went wrong when crises are neither prevented nor mitigated. Avoiding such shortcomings is particularly
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pressing in just those cases that prompt calls to protect vulnerable populations – when inaction can have far-reaching and tragic consequences, and failing to learn from past mistakes deprives us of the knowledge needed to make meaningful pledges of ‘never again’. In order to identify which collectivities in world politics can coherently be understood to be moral agents, I have proposed what I call a ‘model of institutional moral agency’ (for details see Erskine : –, : –). Adding to and elaborating upon Peter French’s account of ‘conglomerate collectivities’ (French ) and inspired by Onora O’Neill’s ‘thin theory of institutional agency’ (O’Neill : –), I have proposed that a collectivity qualifies as a moral agent if it possesses five characteristics: first, an identity that is more than the sum of the identities of its constitutive parts, or what might be called a corporate identity; second, a decision-making structure that can commit the group to a policy or course of action that is different from the individual positions of some (or all) of its members; third, mechanisms by which group decisions can be translated into actions (thereby establishing, with the previous criterion, a capacity for purposive action); fourth, an identity over time; and, fifth, a conception of itself as a unit (meaning simply that it cannot be merely externally defined). I refer to collectivities that have these qualifying features as ‘institutional moral agents’. They can be subject to the assignment of duties and the apportioning of blame in the context of particular acts and omissions in a way that is not reducible to their individual constituents – as long as they enjoy the (limited) independence from other agents and structural constraints necessary to perform the requisite actions. (Neither individual human nor institutional moral agents can coherently be expected to discharge a duty in the absence of enabling conditions.) To avoid misunderstanding, this proposed model in no way precludes or undermines the moral agency of those individual human actors, or subgroups, that constitute the institutional moral agent. Rather, moral agency exists simultaneously at different levels, and moral agents at all levels can be responsible for concurrent, complementary, or even coordinated acts and omissions. In light of this model, one might ask which collectivities in world politics would be able to respond to the proposed moral imperative to protect vulnerable populations from mass atrocity. Although each case warrants detailed examination beyond the scope of this chapter, one might argue that most states and many intergovernmental organisations (including the UN) possess the sophisticated, integrated capacities for deliberation and action that allow them to qualify as institutional moral agents.
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‘Coalitions of the Willing’ Shared Responsibility
As moral agents, they could reasonably be expected to discharge such a duty in accordance with established moral guidelines and in the context of enabling conditions. They could also, then, be blamed for the acts or omissions that derogate from this duty. Coalitions of the willing, however, belong to a broad category of unlikely candidates for institutional moral agency: informal associations, or those collectivities that lack formal organisational structures and decision-making procedures. Informal associations are prominent in both the scholarly domain of International Relations (IR) and the practical world of international politics. ‘International society’, ‘epistemic communities’, ‘transnational advocacy networks’, and ‘communities of practice’ are all informal associations that are notable, and fruitful, objects of analysis in IR. Terrorist networks, protest movements, and coalitions of the willing – as well as the more amorphous collectivities known respectively as ‘the international community’, ‘the (global) market’, ‘the media’, and ‘the Internet’ – are examples of informal associations regularly invoked in practical discourses and debates. Each would prima facie struggle to be considered a duty-bearer in its own right – and this matters to how we interpret, judge, and respond to the assertions of moral responsibility made in relation to them. Of this diverse range of examples, coalitions of the willing are a particularly interesting case because they have been regularly ushered into (and occasionally conspicuously excluded from) recent, prominent discussions of moral responsibility in world politics, including discussions of RP. They also provide an exceptionally challenging case because they do not straightforwardly fail to meet every criterion for institutional moral agency, but, rather, demand careful consideration of the degree to which they might satisfy at least some.
. Defining ‘Coalitions of the Willing’ Coalitions of the willing are common phenomena in world politics. The label is most often used for associations that are summoned and established in cases of military intervention – with or without UN authorisation, and frequently on proposed humanitarian grounds – but is also applied in the context of single-issue campaigns involving norm promotion (Cooper ). The term has achieved relatively recent currency. It was reportedly used for the first time in –, when a US-led, UN-authorised ‘coalition of the willing’ responded to Iraq’s invasion of Kuwait (Bloomfield ), and was employed again in the late s in the context of the campaign to prohibit anti-personnel landmines (Axworthy , cited in Cooper
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: ). A ‘coalition of the willing’ established around the North Atlantic Treaty Organization (NATO), which included some non-NATO states, intervened in Kosovo in on humanitarian grounds without UN Security Council backing. In the same year, an Australia-led, UN-endorsed ‘coalition of the willing’ intervened in East Timor. The US-led group of states that launched a ‘preventive’ war against Iraq – one that was also subsequently, and rather improbably, justified on humanitarian grounds – has arguably been the most prominent, and infamous, example of such a coalition. In , a multinational ‘coalition of the willing’ led by the USA took military action to protect civilians in Libya (followed shortly after by NATO control of the military effort) under the authority of UN Security Council Resolution . Finally, respective calls have been made to establish a ‘coalition of the willing’ to advance the climate change agenda (reported in Leake and Webster ; see also Hale ) and, in the absence of UN Security Council authorisation, to put a halt to the violence in Syria (for example, McCain ; Lewis ). Despite the differences between the various examples listed, an important set of shared features tie them together. Coalitions of the willing are self-selected (and often self-authorised) constellations of states and sometimes intergovernmental and non-state actors (including, for example, regional alliances of states and private military and security corporations, respectively) that come together to respond to a specific crisis and, in responding, act outside the control of any formal, overarching organisation to which they might already belong. The members of a coalition of the willing are thereby temporarily united in pursuit of a common purpose, but the coalition itself lacks an established organisational and decisionmaking structure. For those coalitions of the willing that either convene or are implored to materialise in order to engage in military intervention on humanitarian grounds, the issue of their authority to act invariably arises. As such, two clarifications are in order. First, the circumstances under which a coalition of the willing might intervene militarily on humanitarian grounds include both those in which the UN has effectively ‘subcontracted’ such an ad hoc association to act, to use Thomas Weiss’ term (Weiss : ), and those in which the members of a coalition of the willing put themselves forward as agents of intervention when the UN is unwilling or unable to act at all. I will refer to the associations in each case as ‘subcontracted’ and ‘vigilante’ coalitions, respectively. The second point of clarification follows from this and concerns when I understand the UN as failing to act. As a body that has both explicitly assumed a moral responsibility to intervene in cases of mass atrocity, and
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‘Coalitions of the Willing’ Shared Responsibility
has claimed a monopoly on authorising interventions conducted by other agents, the UN derogates from this responsibility when it fails to act either by deploying troops itself or by providing approval for another body to act in its place. Either failure can conceivably have one of two sources: a decision not to deploy troops or not to provide authorisation to other bodies to intervene; or the inability to act due to a decision-making stalemate (brought on by the exercise of the veto in the Security Council) or lack of resources (often in the form of insufficient material support from its member states). Questions of authority – including whether the UN should have a monopoly on authorising intervention in cases of humanitarian crises – are, of course, important. Yet, whether or not vigilante coalitions of the willing should have the legal authority to intervene in cases of mass atrocity and large-scale loss of life is distinct from a possibility that will be explored in this chapter: that both subcontracted and vigilante coalitions (or at least their constituents) have a moral obligation to intervene in certain urgent circumstances. Coalitions of the willing receive little attention as subjects for academic study in IR, and have been ignored within philosophical discussions of collective responsibility (perhaps unsurprisingly given the hitherto largely domestic focus of such analyses). Moreover, despite their concrete presence in military interventions on humanitarian grounds, they are conspicuously absent from recent RP reports and policy documents. Significantly, the seminal report, The Responsibility to Protect, drafted by the International Commission on Intervention and State Sovereignty (ICISS), acknowledges the potential necessity of vigilante coalitions, ‘ad hoc coalitions . . . acting without the approval of the Security Council’, engaging in military intervention for human protection purposes if the Security Council ‘fails to discharge . . . its responsibility in conscienceshocking situations crying out for action’ (ICISS : –). However, when the UN member states unanimously endorsed RP at the World Summit, it was made explicit that the responsibility to protect deemed to be borne by the international community must be discharged exclusively through the Security Council (UNGA : paras –), with, perhaps predictably, no mention of a backup role for vigilante coalitions of the willing. If we accept that there is a responsibility to protect vulnerable populations from serious human rights abuses (a claim that has not only become increasingly widely accepted, but is also broadly understood to be a moral imperative), then considering who should, and indeed can, discharge this responsibility when the UN fails to act is fundamental. The coalition of
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the willing is an obvious candidate for consideration. The question of how we understand such coalitions – whether as entities that we can reasonably expect to bear moral burdens, or as ad hoc associations of individual dutybearers – necessarily follows. In order to respond, it might prove useful to return to the criteria proposed earlier and interrogate the preliminary judgement that coalitions of the willing fail to qualify as institutional moral agents.
. Are Coalitions of the Willing Institutional Moral Agents? A coalition of the willing struggles to meet the first criterion for institutional moral agency: that it possess an identity that is more than the sum of identities of its constitutive parts. Indeed, the importance that is often placed on the precise membership of such a coalition is indicative of this difficulty. Moreover, a considerable obstacle to a consistent and convincing corporate identity is the coalition’s failure to satisfy the second criterion. The absence of an established decision-making mechanism at the level of the coalition prevents the diverse perspectives, preferences, and policies of its members (along with their potentially very different motivations for association) from being channelled into a position that is more than an agglomeration of discrete individual stances. Any independent identity that the coalition as a whole might achieve therefore remains partial and precarious at best. Deliberation does, of course, take place between the members of the coalition – and is necessary for the coordinated action that its constituents come together to achieve. Yet, rather than the formal decision-making of so-called ‘structured institutions’ such as the UN, NATO and (all but failed) states, which entails codified rules and established practices for arriving at policies, the coalition of the willing relies on what might be called informal decision-making. This involves negotiation, bargaining, and consensus-building among various constituents in the absence of existing organisational structures and decision-making procedures. In the case of both subcontracted and vigilante coalitions assembled for military interventions, one member often takes the lead (whether a state such as the United States or a regional alliance such as NATO). Other coalitions of the willing, most notably those committed to norm promotion, tend to be less hierarchical in negotiating courses of action (Cooper : ). Yet, both cases display a further feature frequently associated with informal decision-making: the inability to translate calls for collective action into decisions that are binding upon the group as a whole if such proposals depart from the positions of some of its members.
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‘Coalitions of the Willing’ Shared Responsibility
In sum, informal decision-making establishes and holds together the loose association of agents (or, indeed, fails to do so); achieves some consensus on a general course of action; and coordinates individual contributions (often imperfectly), with the specifically military command-andcontrol function of those coalitions assembled for interventions commonly provided through a single chain within the lead organisation. Crucially, there is no overarching decision-making apparatus that can be said to both direct the actions and represent the intentions of the collectivity as a whole. With respect to the third criterion – that the collectivity have mechanisms by which decisions can be translated into actions and policies can be implemented – although the individual members of the coalition can carry out their respective decisions in order to coordinate their actions, and can even choose to follow the instructions of a lead agent, the lack of a decision-making structure at the level of the coalition impedes corporate purposive action. As an association that is by definition temporary, a coalition of the willing also stumbles at the fourth, identity-over-time, criterion. A degree of continuity is necessary for it to make sense to talk about the moral expectations that we have of a collectivity performing certain actions at some point in the future. Logically, a coalition of the willing cannot be assigned duties prospectively when it does not exist prior to what is often taken to be the duty-generating event or set of circumstances that its constituents band together to confront. Moreover, it follows that, as a group, it cannot incur blame retrospectively for failing to discharge duties that it could not have been assigned in the first place (Erskine : ). This judgement is crucial for many of the cases being addressed: that is, when an ad hoc coalition is called to action to respond to the gross violation of human rights, but no such entity yet exists. It also highlights one of the vital questions that this chapter seeks to address. To whom – or to what – can duties be assigned in such a case? However, it might be wise to pause on this criterion and consider another set of circumstances. Coalitions of the willing enjoy some continuity once they have been established, even if this is unlikely to represent the persistence of a corporate identity. Once a coalition of the willing has been established, questions of prospective and retrospective moral responsibility arise in relation to the specific time frame in which it exists. The proposed responsibility to respond, which the members come together to uphold, does not exhaust the range of possible duties to be discharged when the response takes the form of military action to protect vulnerable populations. Rather, other duties are also recognised in the context of that
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action: that military intervention be conducted discriminately and proportionately, for example. Questions remain of where these duties rest and where blame for their breach is to be apportioned. Convincing answers depend on the moral status of the coalition of the willing. Insight into this status is, in turn, revealed in the difficulty that such coalitions have in meeting the previous criteria – even if, once established, they can have a (limited) identity over time. Finally, the criterion that the collectivity be self-asserting is easily met by a coalition of the willing, given that its constituents are self-selected and explicitly committed to both a common goal and collective action. Even acknowledging the diversity within the category of coalition of the willing, and understanding each criterion for institutional moral agency as being able to be satisfied by degree (rather than constituting an all-ornothing test), coalitions of the willing do not possess the sophisticated, integrated capacities for deliberation and action that would allow them to qualify. According to this analysis, coalitions of the willing are not moral agents; the moral responsibility to protect vulnerable populations must be borne elsewhere. Individual states and other institutional agents might have duties to intervene, and can be blamed for inaction (or acting disproportionately or indiscriminately). However, such prescriptions and evaluations must remain exclusively at the level of those agents that make up the temporary association. We cannot coherently talk about assigning duties or apportioning blame to the coalition itself.
. A Gap in the Analysis? Moral Responsibilities and Informal Associations This might seem a logical end point to this analysis. Yet, three related concerns remain, each of which cautions against treating coalitions of the willing as mere aggregates of individual agents acting independently for the purposes of addressing questions of moral responsibility. First, if moral responsibility must be attributed to individual states (and possibly nonstate and intergovernmental actors), rather than the ad hoc associations that they might come together to form, there will be some cases in which no state (or other actor) can be expected to discharge a duty to protect a population from egregious human right violations simply because each, as a discrete agent, lacks either the capacities or enabling conditions to do so. If the UN is also unable to respond, then we seem to have no choice but to concede that no agent can reasonably be burdened with a duty to protect the vulnerable population. This is eminently unsatisfactory.
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‘Coalitions of the Willing’ Shared Responsibility
Second, accounts of moral responsibility with respect to some informal associations, such as coalitions of the willing, seem to resist being reduced without remainder to their component parts. If their members can accomplish things acting in concert that they cannot achieve when acting individually, this must somehow affect our judgements of moral responsibility in relation to them, even though the coalition that they come together to form cannot be a moral agent in itself. Third, coalitions of the willing are not amorphous collectivities in the way that the international community is. They are not purposive actors in themselves, but they nevertheless seem to possess something that at least resembles a capacity for purposive action. Meeting some of the criteria just addressed to a limited degree does not take the coalition of the willing far enough to qualify as an institutional moral agent. Nevertheless, its informal deliberative capacity, the continued (albeit temporary) association of its members, and its constitution by actors who have come together to participate in a common project are features that, combined, seem morally significant. Perhaps informal associations like coalitions of the willing should not be so easily dismissed in assessments of moral responsibility. Some philosophers have focussed on questions of moral responsibility in the context of just those types of collectivity that I have argued cannot bear duties at the corporate level: associations that lack formal organisational structures and decision-making procedures. Insights from their work provide a more nuanced and demanding account of moral responsibility in relation to informal associations in world politics than has been alluded to so far – and one that will complement the analysis of institutional moral agency already offered.
. Held’s ‘Random Collection’ The question that Virginia Held set out to answer in an oft-cited article is reflected in its title: ‘Can a Random Collection of Individuals Be Morally Responsible?’ (Held ). The types of groups that she wishes to hold up to scrutiny are those that contingently share a time and place, but lack any specific decision-making procedures. We might, she suggests, think of unacquainted passengers riding together on a train or pedestrians sharing a sidewalk as thereby belonging to this category. Neither would have specific methods for deciding to act. Indeed, the groups that she addresses fail to qualify as institutional moral agents on each and every criterion offered in ‘section .’. They also, I will suggest, stand in a
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potentially instructive relationship to the types of ad hoc association overlooked in recent articulations of RP. Held makes two claims. First she argues that, in some circumstances, a random collection – or, more accurately, those that make up such a collection – may be held responsible for not acting. The specific circumstances in which they may be held responsible are those in which the following conditions are met: (i) the individuals constituting the random collection were faced with a stranger in dire need of rescue and the gravity of the crisis demanded a response; (ii) these individuals could have rescued the stranger by acting together, even though no one in the group could have done so acting independently; (iii) the required action was ‘obvious’ and its foreseeable outcome ‘clearly favourable’; and, (iv) carrying out this action would have been possible without prior deliberation or special coordination between the individuals and would not have been open to disagreement (Held : ). As my intention is to apply Held’s argument at the international level, it is worth noting that the extent to which the fourth condition can be met when we are talking about discrete states, rather than individual human beings, is questionable. It is difficult to imagine a scenario in which collective action involving states would require neither prior deliberation nor special coordination. This condition would therefore prima facie shield individual states from any expectation that they engage in remedial collective action outside a pre-existing organisational structure. An exemption of this sort would have potentially tragic consequences in those cases in which no formal intergovernmental organisation were willing or able to act to discharge a moral responsibility, such as the proposed imperative to protect vulnerable populations. The duty would thereby go unmet without any agent having derogated from its moral responsibility to respond. However, before lamenting that states would be let off the moral hook given Held’s analysis, this application to international relations might be valuably pursued – and the apparent leniency of this condition qualified – in the context of her subsequent assertion. According to Held’s second claim, even in some cases in which a random collection cannot be held responsible for failing to perform an action, the individuals who constitute it may be held responsible for not ‘forming [themselves] into an organized group capable of deciding which action to take’ (Held : ). The specific example that she constructs to convey this argument is worth relating. Held describes three pedestrians, who are strangers to each other, walking down an isolated street when ‘[a] small building collapses’:
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‘Coalitions of the Willing’ Shared Responsibility
A man inside is trapped; he calls to the three for help. He is bleeding from a lower-leg injury and needs immediate assistance. All four persons know that a tourniquet should be applied to his thigh, but this cannot be done until various beams are removed, and removing any would require the strength of all three. The three observers do not agree on how to proceed. (Held : )
Each person makes a different proposal, they argue, do not act, and the man slowly bleeds to death. Held observes that any of their proposed actions would have saved the man, and a ‘reasonable person’ should have known that any action would have been better than none; ‘[t]he problem was deciding which to take’. She concludes that we cannot hold the members of the random collection responsible for the non-performance of the action (given the fourth condition outlined), but that they ‘can be held responsible for failing . . . to adopt a decision method’ and thereby transforming themselves into the sort of group that might have been capable of the deliberation and coordination required for an effective response (Held : ). Intuitively, Held’s judgement appears flawed in two respects – at least in the context of the domestic case that she illustrates. First, she seems too forgiving in concluding that the individuals are not responsible for failing to act when they are unable to reach an agreement (but are, rather, responsible for not forming themselves into the sort of group that would have been capable of acting), if, as she maintains, it is abundantly clear that any action would have been better than no action at all. Surely, then, each individual should have accepted the gravity of the situation, suppressed his or her own desire to orchestrate the rescue, and simply gone along with the others. A more appropriate scenario for the individuals to have been spared responsibility would have been one in which it were not, in fact, clear that any action would have been better than none. Perhaps a false move of one beam, for example, would have conceivably resulted in the death of the trapped man – or indeed all four individuals. Such a scenario would have provided good reason for not contributing immediately to any proposed action, and would have genuinely required a group of individuals capable of some degree of deliberation over the consequences of possible actions and able to coordinate themselves to execute the considered course. Second, if transformation into a group capable of this sort of deliberation had been necessary, it does not seem plausible to suggest that the individuals could have achieved this in the time they had to move the beams without the victim bleeding to death. Yet, when an analogy is drawn with a possible set of circumstances at the international level, and states (or even regional organisations of states)
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represent the pedestrians, Held’s judgement becomes more compelling in both respects. First, whether the crisis is a malfunctioning nuclear power plant (such as the one involved in the Fukushima Daiichi nuclear disaster of ), or the mass violation of human rights in another state (such as Rwanda in , or Syria from ), the situation is going to be infinitely more complex than simply moving three beams. Indeed, in such complex crises, it is not obvious that just any action would be better than none. Some actions will worsen rather than improve the situation, or cause more overall harm than good. Second, in many cases of international crisis, there is time for relevant agents to transform themselves from a random collection into a group capable of accomplishing objectives that would be beyond their reach if they were each facing the crisis either in isolation or as part of a completely non-integrated aggregate. (This potential is particularly important in the absence of a formal, permanent organisation willing and able to respond, and given that either establishing or reforming such an organisation would require a prohibitively longer time frame.) Genocidal intent, for example, is often clearly articulated before it is acted upon: weapons might be stockpiled, hatred incited, human beings rhetorically reduced to ‘cockroaches’. In short, crises – or at least their escalation – may be anticipated, leaving time to establish some capacity for deliberation and special coordination between relevant agents. This is where Held’s analysis and an exploration of moral responsibility in the context of coalitions of the willing come together in a particularly meaningful way.
. Applying Held’s Argument to World Politics Held’s argument provides purchase in addressing certain, apparently intractable, cases in world politics in which the gravity and imminence of a crisis demands a response, and yet no agent seems able to act effectively on its own. Inspired by Held’s position, one might propose that even if remedial action requires both a multilateral effort on the part of available agents (because of the limited capacities or constraining conditions faced by each), and prior deliberation and special coordination between them (because the requisite action is neither immediately obvious nor beyond disagreement), and even if these agents are not part of some pre-existing organisational structure that would facilitate such cooperation, there nevertheless remains a moral imperative for them to do something. Namely, they each have a duty to contribute to establishing the type of collectivity capable of the requisite collective action. It is important to emphasise that Held actually suggests that members of a random collection
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be held responsible for failing to transform themselves into an ‘organized group’ – comparable to those formal organisations that I argue qualify as institutional moral agents. (For Held, an ‘organized group’ has ‘a method for deciding to act: it has officials who can act in its name, or a voting procedure . . . or customary procedures to guide its actions’ (Held : ).) Yet, her argument, and the particular time-sensitive, life-and-death examples that she invokes, actually point towards an intermediary type of association that the members of her random collection have an obligation to form themselves into: an informal association, loosely organised and capable of some deliberation leading to coordinated action, but lacking the organisational or decision-making trappings of a structured institution. Applying Held’s argument to the international level – but with the crucial clarification that loose organisational structures may be sufficient for the deliberation and coordination needed to support some forms of collective action – leads to a compelling, and potentially controversial, suggestion. One might propose that individual states (and non-state and intergovernmental actors) each have an obligation, in the absence of a viable alternative, to contribute to the establishment, and then functioning, of an informal, temporary association for the purposes of responding to a particular crisis effectively, robustly, and in time to mitigate disaster. This seems especially persuasive in the worrying case where there is no formal organisation (such as the UN) that can be expected to discharge a duty to respond (either because of external, constraining conditions or the agent’s own limited capacities for deliberation and action) – and no hope of reforming or creating one in the limited time needed for an effective response. Of course, once such an ad hoc coalition has been established, we are talking about neither a ‘random collection of individuals’, nor what I have called an institutional moral agent, but, rather, something between the two: that is, an informal association made up of actors who have come together in pursuit of a common goal.
. The Moral Significance of Acting in Concert: Coalitions of the Obligated The proposal that I have taken from Held’s article is the following: if there is a duty to perform a particular action, and if individual agents can come together to perform this action when they could not have performed it individually, then they each have an obligation to contribute to establishing the type of group necessary for this duty to be discharged.
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The examples that she invokes in constructing this argument gesture towards a category of informally organised associations whose members are nevertheless capable of some degree of deliberation and special coordination. For giving substance to such an intermediary category of collectivity, Larry May’s work is invaluable. From May’s work, I take the point that social relationships and their participants’ shared interests and desire to work towards a common goal define a subclass of informal association that is distinct in significant ways from Held’s ‘random collection’. May effectively introduces another category of collectivity: those entities that lack formal organisational structures, but that ‘can facilitate joint action or common interest’ nonetheless (May : ). Within this category May includes collectivities that have ‘informal organizational structures’, like teams, and those ‘such as mobs’ that ‘can attain unity even though they are not organized at all’ (May : ). Both types of collectivity, May argues, are distinct from those random collections of persons ‘which do not have the ability to engage in joint action’ (May : ). Although the latter variation (which May understands to be exemplified by mobs) is less useful to the discussion here, the former would seem logically to be the type of collectivity that the individuals within Held’s random collection have an obligation to contribute to establishing under certain circumstances – at least in the short term, given the time constraints that she assumes. Indeed, May’s account of the often-overlooked characteristics of such informally organised collectivities – most significantly, the capacity for what he calls ‘joint purposive behaviour’ (May : ) – provide the foundation for a potentially valuable supplement to analyses of moral responsibility made possible by the model of institutional moral agency outlined earlier. His middle ground between groups that I have argued are capable of corporate purposive action and groups such as Held’s ‘random collections’, which are reducible to the actions of their constituents, tell us something important about moral responsibility in world politics in general, and about the reasonable expectations that we might have of coalitions of the willing in response to humanitarian crises in particular. It is important to clarify here that I hesitate to take May’s valuable notion of ‘joint purposive behaviour’ as far as he does and accept that group action and intention are possible in the case of informal associations. I do not think that solidarity can replace a formal organisational structure and decision-making procedures, and thereby allow for purposive action in a way that is not ultimately distributive amongst the members of the association. The thought of somehow melding together the actions and
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intentions of these constituents seems unrealistic – and worrying, particularly if one then treats each constituent as somehow complicit in the ostensible actions of the informal association as a whole. Despite my defending the view that formal organisations that meet specific criteria are capable of purposive action, and can thereby coherently be understood to bear moral responsibilities at the corporate level, I do not think that the same is true for informal associations. When it comes to this category of collectivity, descriptions of actions and intentions, and corresponding ascriptions of moral agency and responsibility, are reducible to their individual constituents, as long as one recognises that such accounts are different in important ways from accounts of individuals acting independently or in isolation. This difference is encompassed by what I take to be the defining feature of what is variously referred to as ‘joint action’, ‘shared activity’, and ‘collective action’: an outcome or effect that could not have resulted from the mere summation of individual acts. Importantly, the necessarily unified, concerted endeavours of individual agents that characterise such action vary in both sophistication and the capacities necessary to perform them – a point that is particularly important if we are considering joint action at the international level. Some types of joint action – including that which Held suggests the members of her ‘random collections’ can be blamed for not performing given certain conditions – require only limited cooperation between individual agents. Others demand some degree of prior deliberation and special coordination. Following May (to the point that draws on his analysis of groups with informal organisational structures, but not as far as to embrace his analysis of those that lack them, such as mobs), I will refer to the latter, more sophisticated variation as joint purposive action. To be able to exercise joint purposive action, the members of a collectivity must have the following: compatible interests (although not common or even necessarily complementary motivations); a concomitant willingness to cooperate – something that might be called ‘participatory intention’ (see Kutz ); and the capacity to deliberate (however informally) in order to coordinate their actions (even imperfectly) in circumstances in which the required collective action is not obvious but, rather, open to disagreement. Joint purposive action is thereby distinct from action that is best described at the level of the organisation as a whole and that generates coherent accounts of moral responsibility that cannot be reduced to its individual constituents. The model of institutional moral agency presented earlier aims to explore the latter (and to define the collectivities capable of it), but overlooks the moral
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significance of the former. Coalitions of the willing are capable of – and, indeed, created to exercise – joint purposive action. With the potential for joint purposive action comes shared responsibility. By shared responsibility I mean responsibility that is necessarily distributive amongst the individual members of a collectivity for outcomes that can only be achieved when they act in concert. I am not, however, suggesting that joint purposive action thereby entails diminished responsibility on the part of each member of the group. From such a perspective, the fact that multiple actors are required to discharge a duty would mean that the responsibility of each to act is somehow reduced – and that each could only be blamed in fraction for failing to do so. Moral responsibility, by this view, is diluted when it is shared. I do not mean this at all. Rather, the position that I am proposing involves the individual constituents of those informally organised groups capable of this more sophisticated type of collective endeavour bearing greater individual responsibility than they would bear if they were acting independently. It also, by extension, suggests that we should have greater expectations of the individuals within random collections that have the potential to contribute to establishing such groups than we should have of individual agents who do not have this opportunity (because they find themselves either isolated or part of a random collection whose other constituents lack a willingness to cooperate).
.
Joint Purposive Action, Enhanced Capacities, and Redefined Individual Responsibilities to Protect
The arguments of both Held and May allow me to build on a relatively simple, but crucial, insight: that agents who come together, even in an informal association, to work towards a shared goal are able to achieve things by cooperating that they would not be able to achieve independently. This potential for enhanced capacities prompts me to suggest that individual agents (including states, non-state actors, and intergovernmental organisations) should come together to form such an ad hoc group, in the absence of a viable alternative and when confronted with a moral imperative that would otherwise go unmet. This also leads me to propose that there is reason to have greater expectations of these individual agents – both when they are already members of an informal association with the capacity for joint purposive action and when they find themselves in a ‘random collection’ with the opportunity to form such an association. In other words, the enhanced capacities with which individual agents can be
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imbued as part of an informal association (existing or potential) lead to magnified individual responsibilities. This argument regarding the possibility of joint purposive action and attendant shared responsibility is directly relevant to considerations of who can – and should – discharge the proposed remedial responsibility to protect vulnerable populations in certain urgent cases. Indeed, if we take the proposed moral responsibility to protect populations from mass atrocity as a starting point, and accept that the state of Libya had manifestly failed to protect its own population leading up to the intervention, this argument has implications not only for how we judge the actions of those states that formed a coalition in order to carry out UN Security Council Resolution (these actions were required – and not merely due to states’ UN Charter–defined responsibilities to implement Security Council decisions), but also for what would have been required in a counterfactual case of no resolution. In such a case, either a state capable of acting independently would have had a duty to intervene (Walzer’s ‘agent of last resort’), or, more plausibly (given both the diverse range of capacities needed for an effective humanitarian intervention and the constraining perception of illegitimacy that threatens to accompany unilateral action), individual states, and possibly non-state and intergovernmental actors, would have each had an obligation to contribute to a collectivisation process, and then, as part of a joint endeavour, to respond to the crisis. Indeed, in these circumstances, what is commonly known as a ‘coalition of the willing’ is more aptly labelled a coalition of the obligated. Importantly, when such institutional moral agents have enhanced capacities as members of an informal association, or the opportunity to acquire enhanced capacities by contributing to the establishment of an informal association, the greater expectations placed on each of them also translate into increased vulnerability to blame if there is a failure to respond. Indeed, there is a compelling case for considering the possibility of shared responsibility for joint omissions or inaction in concert in certain cases.
. Accompanying (Ongoing and Long-Term) Responsibilities None of this is to say that all moral responsibilities are somehow discharged when an ad hoc group of agents comes together and acts in concert to respond to a crisis in the absence of a viable alternative. Here it might be useful to return to Held’s example of the victim of the collapsing building. Even if individual actors have an immediate
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responsibility to form a temporary, informal association, and cooperate in order to save a victim facing a profound threat, such emergency measures, and even their possible success, do not mitigate the ongoing and long-term responsibilities both to create the conditions conducive to avoiding this sort of accident in the first place (by promoting the construction of safe buildings), and to ensure that a more suitable agent is in place to respond (by establishing robust and reliable emergency services). In the international realm, alongside the immediate – and transient – imperative that institutional agents act in concert when faced with a grave crisis that would otherwise be unattended, it is necessary to recognise the ongoing prospective moral responsibilities both to create an environment in which such crises are prevented and to build and bolster formal ‘agents of justice’ with the will, resources, and procedures in place to act. This final moral responsibility is crucial because the informal associations that satisfy the immediate imperative are, in many ways, imperfect alternatives. Informal associations such as coalitions of the willing may be capable of joint purposive action, and may even boast a speed and flexibility in responding to crises that some formal organisations (such as the UN) lack when their rigid, formal decision-making structures are slow to arrive at a course of action or result in stalemate. However, these associations also have limits. Unlike (effectively functioning) structured institutions, they have neither the potentially sophisticated capacity for deliberation manifest in highly developed mechanisms for accessing and processing information, nor the capacity for institutional learning whereby an organisation is able to reflect on past experiences (and the consequences of previous acts and omissions) in a way that allows calculated revisions to policies, practice, codes of conduct, and organisational culture. Nor is there the same potential within such informal associations to integrate coherently the roles of their constituents and thereby achieve a comparably complex level of coordinated action. Accordingly, both individual human and institutional moral agents also have an obligation to create, empower, or reform those formal organisations best able to respond to crises so that such ad hoc arrangements do not exhaust our options in the future.
. Conclusion Coalitions of the willing cannot coherently be considered bearers of duties. Our calls to action and cries of condemnation in the wake of action that is stalled, ineffective, or deemed unjust must be directed instead towards the states, non-state actors, and intergovernmental organisations that variously
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constitute (or could constitute) them. And, even while such statements of moral responsibility are reasonably directed towards the members (or potential members) of these ad hoc associations, our attention should also remain focused on reforming and enabling the formal organisations for which coalitions of the willing act as either necessary supplements or, more controversially, unauthorised substitutes. Yet, these are only some of the conclusions that follow from the argument presented in this chapter. It has also yielded a more nuanced account of moral responsibility in relation to informal associations in world politics than the model of institutional moral agency could hope to offer on its own. This account, in turn, has far-reaching implications for our responses to practical problems, such as how to make sense of the widely accepted, and detrimentally vague, claim that ‘the international community’ has a moral responsibility to respond to mass atrocities, and how to organise ourselves to discharge this collective commitment. Informal associations (which lack established organisational structures and decision-making procedures) do not qualify as institutional moral agents and cannot bear moral burdens at a corporate level. This judgement is important. However, the proposed model of institutional moral agency dismisses these types of collectivity too quickly with such a stark assessment and, therefore, fails to address important problems of moral responsibility in world politics. Fortunately, the same model allows us to understand certain bodies in world politics as themselves constituted by institutional moral agents. It thereby makes accessible valuable lessons from the work of philosophers such as Held and May, who focus on informal associations at the domestic level, populated by their individual human counterparts. Consideration of the work of Held and May helps us to identify two categories of collectivity that lack formal organisational structures and decision-making procedures: ‘random collections’ of agents that contingently share a time and place; and, associations made up of agents that share a common purpose and have developed an informal organisational structure and deliberative capacity in order to pursue it. Both are distinct from those formal organisations (such as the UN and NATO) that are themselves made up of institutional moral agents, and are at least conditionally capable of deliberation and action at the corporate level. While the members of the former are only able to achieve (very limited) joint action that does not require prior deliberation and special coordination, the constituents of the latter can realise more sophisticated forms of cooperation, or what I have labelled ‘joint purposive action’.
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The members of informal associations capable of joint purposive action can address injustices and respond to crises (and, indeed, produce harm) in ways that far surpass what they could each achieve if acting on their own. Our prescriptions and evaluations of their actions should thereby be different in significant ways to those that we would make if these agents were acting independently. In short, their enhanced capacities within these associations lead to magnified responsibilities on the part of each individual agent. Significantly, however, this argument does not support the simple conclusion that we should only have greater expectations of agents if and when they become members of such informal associations. (There could then be a perverse disincentive to form such associations in the face of crises.) When confronted with what is commonly held to be a dutygenerating crisis, and in the absence of a viable alternative, our expectations should also attach, in the short term, to those individual agents able to contribute to establishing the sort of informal association needed to discharge the duty. In the wake of duty-generating crises that were neither prevented nor mitigated, blame should be apportioned not only to those individual and institutional moral agents who caused harm (by acting maliciously, recklessly, or negligently), and to those individual and institutional agents who could have responded but did not, but also to those who failed to collectivise to create a temporary, informal, and arguably imperfect association necessary for urgent remedial action. With respect to the hard case addressed in this chapter, this argument suggests that in order to discharge the responsibility to protect vulnerable populations in situations of gross human rights abuses, and in the absence of a single institutional agent willing and able to respond, individual states, non-state actors, and intergovernmental organisations each have a duty to contribute to establishing an informal association capable of joint purposive action and then to participate in – or otherwise support – an effective response. This conclusion will understandably raise a number of concerns, particularly when we are talking about vigilante coalitions of the willing. Primary among these concerns must be whether the imperative that agents contribute to such informal associations can be appropriated as a convenient cover for some to circumvent intergovernmental organisations (and international law) for their own advantage – in other words, to surreptitiously bypass the UN as the designated ‘custodian of collective legitimacy’ (taken from Claude ). I do not deny that this can be – and has been – a motivation for establishing such associations. Nevertheless, if the value of such informal, collective action is brought out of the shadows cast by denial and wishful
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‘Coalitions of the Willing’ Shared Responsibility
thinking (manifest in the mythical abilities of the so-called international community, or misplaced confidence in a frequently weak and constrained UN), and if the vigilante coalition of the willing is acknowledged as an alternative that is sometimes necessary when designated ‘agents of justice’ are unwilling or unable to respond, then explicit guidelines can be set regarding the conditions under which such collective action is genuinely required. Important questions of what these guidelines should look like, which amongst a multitude of duty-bearing institutional agents should be identified to come together and act in concert in a particular case and according to what criteria, and how ensuing tasks and costs are to be distributed, necessarily follow. By proposing that the nature of informal associations, such as coalitions of the willing, should profoundly affect our prescriptions and evaluations of the acts and omissions of their constituents (and potential constituents), this chapter aims both to offer a more demanding account of moral responsibility in relation to such entities in world politics and to set the stage for these crucial, further questions.
Notes This is an abridged version of an argument first published in Erskine (). I am grateful to Ethics & International Affairs and Cambridge University Press for permission to have it reprinted in this volume. I am using ‘moral responsibilities’, ‘duties’, and ‘obligations’ interchangeably for this prospective variation. Although I was first inspired by French in offering this criterion, Philip Pettit’s work (: chapter ) on why certain decision-making structures make group agency possible has been influential in refining it. This final qualification highlights that even those bodies that meet the criteria to be considered moral agents cannot exercise this agency in all circumstances. See Erskine (: –) and O’Neill (: ). For a more detailed account of which collectivities would likely qualify as ‘moral agents of protection’, see Erskine : –. I exclude UN-led (as distinct from UN-authorised) operations from the general category of coalition of the willing. Not only does this exclusion accord with how the label ‘coalition of the willing’ is generally employed, but I understand UN-led operations to exemplify the UN’s own capacity for purposive action (see Erskine : –). The latter label is inspired by Brown (: –), who draws an analogy between coalitions of the willing and vigilante bands. Although the UN lacks its own police and military forces, it has the capacity to act in the former as well as the latter sense – however difficult it might be to exercise this capacity in certain contexts (Erskine : –).
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Brief exceptions that span both can be found in Brown (: –) and Erskine (: , footnote ). Rare instances of attention to the category of coalition of the willing within IR are also found in Cooper () and, in the context of assessments of multilateral military cooperation, in Weitsman () and Kreps (). Of course, this endorsement leaves a legitimate role for subcontracted coalitions of the willing. Indeed, the UN Charter places on all member states a duty to implement Security Council decisions (UN : Article ). For the term ‘structured institution’, see, inter alia, Shepsle (: , ). On decision-making and ‘failed states’, see Erskine (: –). My use of ‘informal’ in this context is informed by work on ‘informal governance’ and relates specifically to the process through which decisions are reached and policies are made. See, for example, the contributions to Christiansen and Neuhold (a), and, for this particular nuance, Christiansen and Neuhold (b: ). According to Oliver (), this is both a common scenario when it comes to military action by coalitions of the willing and an ideal one – but ideal only, he qualifies, in relation to subcontracted coalitions. On the non-binding forms of cooperation that often define informal governance in international politics, see Conzelmann (). Oliver (: ) describes the specific decision-making process relating to the conduct of force as usually resting on ‘a single national chain’. It is notable that the lead actor often does not enjoy complete compliance by the military personnel of the other members of the coalition, who do not totally relinquish their own chain of command and (potentially conflicting) rules of engagement. See Erskine (: ) for a discussion of the criteria for institutional moral agency often being met by degree. Even though unilateral military action would remain a viable option for a few great powers, possessing the power and resources to engage in military action is not the same thing as having the capacity to effectively protect a population at risk. The ability to understand the local culture and political situation, and to generate trust amongst those to be rescued, are also imperative for an effective humanitarian intervention, and will mean that an obvious ‘agent of last resort’ does not, in most cases, have the capacity to act effectively on its own. Furthermore, it should be noted that the perception that unilateral action is illegitimate provides an external normative constraint that pushes even powerful states towards multilateral action. From this point, I will follow Held in using ‘random collection’ to refer to the type of collectivity that she has in mind. Despite the ambiguity of her language in places, Held’s position here supports my contention that moral responsibility is distributive amongst the members of a group that lacks a formal decision-making structure. I take the fourth condition to be implicit in both the second and third conditions and in Held’s analysis of several hypothetical scenarios.
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Held seems, momentarily, to suggest that we can apportion blame to the random collection itself. (She uses ‘itself’ where I have inserted ‘themselves’.) However, in the context of her argument it is clear that she means to apportion responsibility to the individuals within it. I explore May’s work in more detail in Erskine (: –). Again, this is a conclusion that I have reached given what I take to be the logic of Held’s argument, rather than a position that Held herself asserts. I am thereby rejecting a move that I associate with both May () and Miller (). There are differences between how I understand joint purposive action and how May understands what he calls ‘joint purposive behaviour’. Nevertheless, the general concept, as presented in this chapter, is inspired by May (). I am using the term ‘unilateral’ literally in this chapter to refer to action undertaken by a single agent, and not as it is often used in scholarly work on RP, to refer to action without UN Security Council authorisation. Important practical questions of how particular tasks should be distributed amongst relevant agents necessarily arise in the context of such collective endeavours. For an extended version of this argument that engages with these questions, see Erskine (: –). An individual agent’s vulnerability to blame is diminished, however, if other agents required for the joint action refuse to cooperate, or if the deliberation made possible once an informal association has been established results in a reasonable decision that intervention should not be pursued (because it is likely to result in greater harm than good, for example). Compare to May (: –). The phrase ‘agent of justice’ is taken from O’Neill ().
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Environment
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Global Environmental Responsibility in International Society Robert Falkner
. Introduction The global environmental movement has had a profound and lasting impact on the normative structure of international society. It helped establish a fundamental commitment by states to protect the natural environment, both within their territory and internationally. This has given rise to global environmental responsibility as a norm of international relations. In English School parlance, this norm (also referred to as environmental stewardship) has become a primary institution of international society (Falkner and Buzan ). In contrast to secondary institutions (intentionally agreed treaties and regimes), primary institutions make up the underlying constitutional order of international relations. They are, as Buzan states, ‘relatively fundamental and durable practices, that are evolved more than designed’ and that are ‘constitutive of actors and their patterns of legitimate activity in relation to each other’ (Buzan : ). To be sure, global environmental responsibility is a relatively recent, and comparatively weak, addition to the existing set of primary institutions (e.g. sovereignty, territoriality, diplomacy, balance of power) that define the nature of contemporary international society. This chapter traces the process that has led to the emergence of global environmental responsibility, focusing on the interaction between world society and international society. The chapter covers the period from the nineteenth century to the late twentieth century, specifically up to the Rio Earth Summit (for coverage of the post- era, see Chapters and in this volume). Although environmental ideas have a much longer history, reaching back to the eighteenth century and beyond (Worster ), organised environmental activism arose only in the second half of the nineteenth century, mainly in Europe and North America. By the early twentieth century, leading industrialised states had begun to introduce the first environmental
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policies at the domestic level, but it took until the s for international society to establish states’ general responsibility for the global environment. The first UN conference on the environment, held in Stockholm in , was the key event that signalled the arrival of environmentalism on the international stage. In the Stockholm Declaration, the signatories accepted global environmental protection as ‘the duty of all Governments’. Before Stockholm, most states had viewed environmental issues in exclusively domestic terms, rejecting repeated efforts by campaigners to institutionalise an international environmental agenda. From onwards, however, more and more states came to accept that it was their responsibility – individually and collectively – to protect global ecosystems and tackle transboundary pollution. Environmentalism is, therefore, rightly seen as having had a profound and lasting impact on the normative structure of international relations (Jackson ; Linklater : ; Falkner and Buzan ). The chapter is structured into four parts. Section . introduces the ideational context in which environmental ideas and norms emerged. It identifies the three main varieties of environmentalism that provided distinctive options for the formulation of state responsibility for global environmental protection: the ethical commitment to nature preservation; the utilitarian rationale for nature conservation; and the obligation to prevent harm to humans from industrial pollution (see the introduction to this book). Section . traces the origins of organised environmentalism in the nineteenth century, following its growing internationalisation up to the League of Nations and failed efforts to establish an international environmental body. Section . examines the rise of modern environmentalism and the process that saw leading industrialised countries push for the adoption of state responsibility for the global environment at the Stockholm conference. Section . then traces the gradual globalisation of the norm from Stockholm to the Rio ‘Earth Summit’, and Section . summarises the main argument of this chapter.
. Varieties of Environmentalism The international norm of global environmental responsibility, or environmental stewardship, has its origins in a diverse set of ideas about the relationship between human society and nature that came to form the political ideology and movement of environmentalism. Environmentalist ideas originate in social and ideational shifts during the nineteenth century that occurred largely in response to the dramatically increased impact of
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Global Environmental Responsibility in International Society
human societies on the natural environment, brought about by the technological and economic changes of the industrial revolution. Environmentalism, and the idea of global environmental responsibility, stem from world society, that is the individuals and societal groups that operate transnationally beyond the state-centric world. As such, the greening of international society is a prime example of how world society actors can play a transformative role as international norm entrepreneurs, generating new norms that states end up adopting for themselves. It suggests a complex process of social integration between world and international society (Clark : ), partly because of the norm transfer initiated by the former, partly also because world society actors continue to play a prominent role in driving the intergovernmental environmental agenda (Betsill and Corell ). For global environmentalism to emerge as a transformative force in domestic politics and international society, three ideational shifts had to occur. The first shift laid the intellectual foundations for a new environmental awareness that redefined society’s understanding of its relationship with the natural environment, giving rise to a sensibility that for the first time valued the preservation of nature over its exploitation. In the past, human societies had mostly feared the destructive potential of nature and sought to tame it. With the onset of the industrial revolution in the late eighteenth century, however, humans increasingly began to perceive nature as being threatened by rapid technological change and economic growth. Reacting to the coming industrial age, romantic artists and philosophers began to express a distinctive environmental aesthetic focused on nature’s sacred and sublime beauty, while nature writers spread throughout society a growing appreciation of nature’s diversity and precariousness (Nash ). The second shift transformed environmental thinking into a political movement that impacted politics in the first industrialising countries. By the second half of the nineteenth century, heightened ecological sensibility had led to the creation of the first environmental organisations (e.g. Society for the Protection of Birds in Britain, Sierra Club in the United States, Verband der Tierschutzvereine des Deutschen Reiches in Germany) that campaigned for the preservation of wilderness, the protection of endangered species, and an improvement in the environmental conditions of urban life. Originally operating in isolated and localised contexts, by the turn of the century environmental campaigners had created national environmental organisations in the industrialised world that also started to focus on transnational issues (e.g. migratory bird protection)
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(McCormick : chapter ). Over the course of the twentieth century, environmental protection grew into a separate policy domain that the modern state increasingly came to recognise as falling within its core responsibility. The third shift turned the various national environmental organisations into a global movement with far-reaching consequences for international society. While nineteenth-century environmentalism was a mostly local and occasionally a national phenomenon, the twentieth century saw the growing globalisation of environmental campaigning. The new science of ecology developed a better understanding of the planet’s global ecological interdependence, and campaign groups increasingly pressed for international action to deal with cross-border pollution and threats to global ecosystems. It was the rise of global ecology and the emergence of a global green movement that created the intellectual and normative framework within which international society came to identify states’ responsibility towards the global environment (Falkner ). Environmentalism is far from being a uniform set of beliefs. In fact, it feeds off many different intellectual traditions and has associated itself with different political ideologies, including liberalism, socialism, and conservatism (Freeden ). The environmental tradition produced several different framings of what constitutes the environmental challenge and how politics should respond: the preservation of nature; the utilitarian conservation of natural resources; and the protection against industrial pollution (Hironaka : –). The preservation framework has its roots in some of the earliest forms of environmental thinking. Informed by the so-termed arcadian approach to ecology (Worster ), preservationists envisage the natural world as inherently well-ordered and harmonious. They fear the destructive powers of an encroaching industrial age and call on society to restore the organic unity of all life forms. Some preservationists advocate a return to the simpler life of a predominantly rural setting, based on an ethic of care and restraint, and calling for moral self-judgement by individuals and society (see the introduction to the book), while others merely seek to tame the excesses of industrialism, by setting aside areas of natural beauty and protecting endangered species. John Muir, founder of the Sierra Club and America’s most famous exponent of preservationism, argued for the protection of wilderness as a sacred refuge, an antidote to the relentless expansion of modern industrial society. Humans should be seen as part of a wider ecological system, not dominating it but seeking accommodation within it (McCormick : –).
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Global Environmental Responsibility in International Society
The utilitarian conservationist strand in environmentalism builds on Worster’s imperial version of ecology and espouses a more human-centred approach to nature. According to this tradition, the modern science of ecology seeks to advance the scientific understanding of nature in order to enable humankind to dominate it, while the rational management of natural resources can ensure their long-term and sustainable usage by human society. Utilitarian conservationists are undoubtedly motivated by a desire to protect nature, but in their vision ecological knowledge ultimately serves as a tool for economic progress rather than restraint. George Perkins Marsh’s Man and Nature () is a landmark publication in this context, providing one of the first systematic accounts of how deforestation leads to soil erosion and reduced soil productivity. The book had a considerable influence on forestry policy in the United States, especially under President Theodore Roosevelt, whose administration promoted the creation of national parks and established the US Forest Service with a mission to secure the long-term use of forests for economic gain (Steinberg : ). A third strand of environmentalism grew mostly out of local concerns over industrial pollution and sought to improve living conditions especially in cities. It shared with the utilitarian conservationist tradition an anthropocentric view of nature, in that it sought to limit air, water, and soil pollution for the sake of human well-being. The rapid spread of factories and power plants, often in close proximity to urban areas, produced various forms of environmental degradation, not only causing nuisance to local populations but also threatening their health. Sanitation, public health, and hygiene thus became the focus of a reform movement in nineteenth-century North America and Europe that sought to hold local businesses to account and impose regulatory restrictions on them (following a more causal logic of responsibility – see the introduction to this book). In the United States, for example, anti-smoke leagues were formed where the growing use of coal-fired power generation had caused a dramatic decline in local air quality (Uekötter : –). The fight against industrial pollution was to become a central motive in the rise of the modern environmental movement especially after the Second World War, featuring high-profile campaigns against the seemingly ubiquitous threats from toxic chemicals, acid rain, and nuclear energy. These three frameworks of environmental protection differed with regard to their diagnosis of the environmental crisis and the policy solutions suggested. Each of these frameworks also made a distinctive contribution to the emerging debate on whether, and how, the nation-state and
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international society ought to take action to protect the global environment, and how state responsibility was to be understood. The preservationist movement expected the state to become a champion of nature protection domestically and internationally, setting clear limits to the expansion of industrial society and helping to preserve endangered species and ecosystems. Its campaigners pursued a narrowly defined environmental agenda, arguing for the creation of international institutions with authority to pursue nature preservation over and above competing economic interests. Theirs was a more expansive notion of state responsibility, based on a moral argument for international society’s duty of care for the planet. Utilitarian conservationists similarly called for national and international action to protect nature, but their conception of state responsibility took into account a wider range of national and international objectives, including the commercial use of natural resources on a sustainable basis. If states had a responsibility towards the global environment, then it was to be balanced with other competing concerns, and responsibility existed in the form of contractual obligations that states entered into through international negotiation. Anti-pollution campaigners likewise argued for international society to accept its responsibility to protect nature against the ravages of modern industry. By focussing on specific sources of industrial pollution, they lent strength to a framing of international responsibility that followed a causal model of accountability, giving rise to arguments about countries’ obligation to reduce transboundary environmental harm and legal measures of redress based on accountability and liability (on different framings of responsibility, see the introductory chapter in this volume).
. Environmentalism Goes Global: From the Nineteenth Century to the League of Nations Environmentalism first emerged as a political force in the second half of the nineteenth century. It combined several different concerns: the preservation of areas of wilderness through the creation of national parks; local campaigns addressing the most pressing environmental ills of the industrial age (e.g. urban air pollution); and the growing application of scientific insights to improve the long-term management of scarce resources (e.g. forests). At this point, these three strands of environmentalism were only loosely connected and did not form a coherent and nationally organised movement. In the United States, the Sierra Club (founded in ) played a key role in the creation of the world's first national parks; in Britain, the
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Global Environmental Responsibility in International Society
Society for the Protection of Birds (later renamed the Royal Society for the Protection of Birds) was formed in and became the country’s preeminent organisation to promote animal protection (McCormick : –); and in Germany, the Verband der Tierschutzvereine des Deutschen Reiches (Association of Animal Protection Societies of the German Empire), which by counted over individual organisations as members, likewise focused its efforts on animal protection issues (Radkau : ). Most of these organisations targeted local measures to improve environmental conditions and rarely concerned themselves with the international dimensions of environmental degradation. Governments in the industrialised world were slow to respond to environmental concerns, mostly treating them as matters for local administration. The first legislative acts to protect the environment were introduced usually in response to specific but relatively isolated problems. In , the US government ceded Yosemite Valley to California as a state park, with the purpose of protecting the area from uncontrolled commercial development. In , Yosemite was then turned into a national park, becoming the model for similar national parks elsewhere (Radkau : ). Municipal authorities and national governments also sought to limit air pollution in urban areas and began to create institutions for the sustainable management of forestry and other natural resources. By the end of the nineteenth century, environmental management was starting to become an integral practice of domestic statecraft in leading industrialised countries, though none at this time recognised a more general responsibility for environmental protection. The first environmental laws and regulations were ad hoc measures, often devolved to local administrations, that did not add up to a coherent national environmental policy. Towards the end of the nineteenth century, environmental campaigners and state representatives also started to address the first environmental problems that were transboundary in nature. As early as in the s, ornithologists and farming interests argued that some form of international regulation was needed to protect migratory birds. Soon after, moves were under way in England and in the Austro-Hungarian Empire to initiate an international agreement on this issue. The utilitarian rationale behind this initiative was clearly evident from its focus on the protection of birds that were useful to agriculture, allowing environmentalists to enlist the support of the farming sector – one of the earliest examples of a ‘baptist-bootlegger’ coalition (DeSombre ) in environmental politics. In , the Swiss Federal Council proposed the creation of an international commission that would draft such an international agreement. It took until , however,
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for the treaty – the first international environmental agreement of its kind – to be signed (Boardman : –). At around the same time, the United States and Canada also began to regulate transnational matters of animal protection through international cooperation, signing treaties on fur seals () and migratory birds (). These first environmental agreements were limited in their scope and focused on narrowly defined problems. They did not suggest that environmental protection had been established on the international agenda. What they did signal, however, was the growing transnationalisation of the environmental movement. Campaigners and scientists met at international conferences and established networks to coordinate the first transnational campaigns. Unsurprisingly, such international networking was limited to a small elite with connections in universities and government. Still, the environmental movement stands out as one of the main drivers behind the nascent world society that was beginning to have an impact on nineteenth century international society (Davies : ). The first attempt to internationalise environmental protection was initiated by Theodore Roosevelt, the first US president with a strong interest in nature conservation. Roosevelt had used his authority to establish a conservationist agenda at the national level, creating the US Forest Service and establishing numerous bird reservations, national game preserves as well as national forests and parks. Having won the support of Canada, Mexico, and Newfoundland at the North American Conservation Conference, held at the White House in February , the US president proposed an international conference on ‘the subject of world resources and their inventory, conservation and wise utilisation’ (Nicholson : ). The Netherlands agreed to host such a conference and sent out invitations to fifty-eight nations to meet in The Hague in September . Before the conference could take place, however, Roosevelt’s second term in office came to an end. His successor, William Howard Taft, shared none of Roosevelt’s conservationist ideals and called off the conference (Nicholson : ). Without US support, European powers were unwilling to carry on with this initiative. At around the same time, a second initiative was launched in Europe to establish an international agenda for nature protection. Convening in Paris in , the International Congress for the Protection of Nature provided a platform for European scientists and environmentalists to promote international environmental cooperation. The conference culminated in the first ever call for the creation of a permanent international environmental body (Boardman : ). A year later, the Eighth International
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Global Environmental Responsibility in International Society
Congress of Zoology, held in Graz, Austria, formed a committee that would seek an intergovernmental agreement on this matter. After lobbying by Paul Sarasin, who had successfully campaigned for the creation of the first national parks in Switzerland, the Swiss government decided to convene a world conservation conference. The conference was held in Berne in , with seventeen countries including the United States, Britain, France, Germany, and Russia in attendance (Wöbse : ). The Berne gathering reached the first international agreement on the need to create an international environmental body, a sign that international society was starting to move towards recognising some level of responsibility towards the global environment. While seventeen countries adopted the Act of Foundation of a Consultative Commission for the International Protection of Nature, the commission’s purpose was quite limited: it was to create a sound knowledge base about the current state of environmental issues and policies and disseminate ‘[p]ropaganda for the international protection of nature’ (Article VI) (Boardman : ). Its intended setup was reminiscent more of the international technical unions of the nineteenth century, aimed at facilitating international exchange and commerce, rather than the international environmental institutions of the late twentieth century. The outbreak of World War I made it impossible to convene a further international conference planned for August . Fourteen countries still went ahead with nominating their delegates to the new body, but in the end the commission turned out to be a stillbirth. After the end of the war, some delegates tried to resuscitate the agreement but these efforts came to nothing (McCormick : –). Against the background of deep international divisions caused by the military confrontation, the notion that states should collectively assume responsibility for nature protection stood little chance of becoming part of the normative structure of international society. The Peace Conference in Versailles provided environmental campaigners with a new opportunity to embed environmental issues in the international agenda. Yet again, activists sought the support of state representatives in Europe and North America. The great powers listened but were largely uninterested. In Britain, the Royal Society for the Prevention of Cruelty to Animals (RSPCA) asked the foreign secretary Arthur Balfour to have animal rights included as a mandatory objective in the peace treaties. A Scandinavian coalition of animal rights campaigners petitioned the US President Woodrow Wilson to have international animal protection law established through the League of Nations. In a
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similar vein, a formal submission by an Austrian campaigner proposed the creation of international law to protect migratory birds (Wöbse : –). None of these proposals were included in the agenda. Consequently, the League of Nations was not given a formal mandate for environmental protection (Boardman : ). Yet, environmental organisations continued with their campaign and soon began to lobby Eric Drummond, the League of Nations’ first Secretary-General, to take up their cause. The RSPCA, for example, asked for an ‘International Charter for the Prevention of Cruelty to Animals’, arguing that Article of League treaty, which concerned states’ social responsibilities, including humane work conditions for workers, should also extend to working animals (Wöbse : –). Drummond was initially sympathetic but quickly identified the League Secretariat’s fundamental dilemma: the Secretariat could only act on this proposal if a member state submitted a formal proposal to this effect (Wöbse : –). World society actors had no authority to initiate new policy areas and depended on state support. Paul Sarasin, who had approached the League Secretariat with a proposal for the moribund World Commission for Nature Protection to come under the aegis of the League (Wöbse : ), also discovered that none of the great powers were willing to lend their support. He abandoned his campaign in (Wöbse : –). Recognising its own limitations when it came to establishing new global responsibilities, the League’s Secretariat continued to encourage civil society organisations to develop transnational networks and put pressure on governments to take up environmental issues in the League (Wöbse : –). But for as long as member states were adamant in their defense of national sovereignty and refused to hand over any international environmental authority to the League, pressure had to come from within states. In the end, the League Assembly never debated environmental matters, and the lack of a functional mandate for environmental protection meant that international environmental issues were passed on to other technical sections of the League, such as transport and economic affairs (Wöbse : ). Discouraged by these repeated failures, environmental campaign groups increasingly focused on more limited international initiatives, such as the Internationale Komitee fu¨r Vogelschutz and the International Office for the Protection of Nature (IOPN) in Berne (Wöbse : ). These initiatives were a case of ‘too little, too late’, however. Despite receiving some financial support from the governments of France, Poland, and the Netherlands, IOPN never developed any traction in international politics.
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Global Environmental Responsibility in International Society
As Europe’s international order began to disintegrate at the end of the s, it became clear that transnational efforts at creating a formal international environmental agenda had failed. The transnational networks that had emerged in the early twentieth century had managed to spread environmental knowledge and ideas around the globe, but without a stronger embedding of environmental values in the domestic politics of leading powers, efforts to establish states' global environmental responsibility came to nothing. Certainly, environmental campaigners did have some limited success in areas of marine protection, although international agreements were negotiated in much smaller, plurilateral, settings. After proposals for a comprehensive marine protection regime based on the notion of shared international solidarity and responsibility were rejected at the League (Wöbse : ), a more limited whaling convention was drafted in and adopted in . International lawyers hailed the convention as a ‘landmark’ treaty (Wöbse : ), not least because it established the principle of common use of global resources, a principle that foreshadowed later developments after World War II. Still, the treaty did not establish a working regulatory system to limit the killing of whales, nor did it establish a wider state responsibility for the global commons. The whaling convention remained an isolated, issue-specific, treaty based on a strictly utilitarian conservation logic of managing a scarce natural resource. Oil pollution from shipping also became the focal point of one of the most prominent transnational campaigns in the interwar years. On several occasions, leading shipping nations considered the creation of an international convention to limit the discharge of oil from ships, first at an international conference in Washington, DC, in and then through a League of Nations expert commission in the s. Despite reaching a preliminary agreement in , efforts to internationalise a regulatory framework failed, leaving the matter in the hands of individual nations (Wöbse : –). It was only in that a renewed effort was made to create an international legal instrument to regulate oil pollution from shipping. Environmental campaigners may have helped establish an international agenda on marine pollution, but they failed to nudge international society into a deeper normative commitment to global environmental protection. The campaign did succeed in framing the oceans as a global commons, but as with other issues of global concern (e.g. human rights and development, see chapters by de Carvalho and Dashwood, in this volume), the major powers were not yet ready to accept a general responsibility for the common heritage of humankind.
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. The Emergence of Global Environmental Responsibility: From the Second World War to the UN Environment Conference The immediate aftermath of the Second World War was an inauspicious time to relaunch the environmental campaign. Questions of economic recovery and political reconciliation dominated domestic politics in Europe, and the growing antagonism between the United States and the Soviet Union overshadowed efforts by the UN to promote global collective action on social and economic issues. Unsurprisingly, therefore, the UN was not given a formal environmental mandate, and environmental problems continued to be viewed mainly as a domestic matter. Only UNESCO was able to include environmental issues in its work programme, though this was mostly restricted to the promotion of international scientific cooperation and information exchange. The trauma of the Second World War did, however, help initiate a major intellectual shift that was to play a critical role in the subsequent resurgence of global environmentalism. The sheer scale of destruction caused by the war created a heightened sense of the threat that modern technology posed to the earth’s future. Indeed, when the United States detonated the world’s first atomic bombs in August , the balance of power between humanity and nature appeared to have shifted irrevocably. Best-selling books such as Fairfield Osborn’s Our Plundered Planet () and William Vogt’s Road to Survival () helped reinforce the perception that technological progress now threatened the very survival of humanity. Osborn argued that ‘mankind was involved in two major conflicts’ – the military confrontation of the Second World War and a ‘silent war’ against nature (: vii), while Vogt drew on Malthusian thinking to predict a future of environmental degradation and resource scarcity. Slowly but steadily, environmentalists were beginning to draw out the global connections in environmental politics, laying the ground for the rise of the international environmental agenda in the s. As yet, though, there was no global environmental movement to give political expression to the emerging global ecological consciousness. The first priority for environmentalists was to rebuild the transnational networks that had developed before the war. The founding of the International Union for Conservation of Nature (IUCN) in was the most significant achievement in this regard, as it was the first body to represent a broad range of national environmental organisations and gave them a permanent platform to seek influence internationally. IUCN was an unusual body in that it straddled the state-centric and non-state centric
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Global Environmental Responsibility in International Society
realms. Initiated by UNESCO’s first Secretary-General, Julian Huxley, it was established by agreement between representatives of governments and conservation organisations as a central mechanism for information exchange and coordination. Compared to other world society concerns in the immediate post-war era, however, environmental issues were only weakly represented internationally. For example, in a total of thirty-three international NGOs operated with an explicit focus on promoting human rights, while only two were concerned with environmental issues (Keck and Sikkink : ). The established conservation organisations continued to focus their activities mostly on local and national problems, generating ‘little international awareness’ (Tucker : ). If anything, the founding of the IUCN as an explicitly hybrid international body with close links to the UN was the exception to the rule. Yet, it still had more in common with nineteenth and early twentieth century elite lobbying than the new social movements of the s that would transform environmental campaigning. States continued to view environmental problems primarily as a national policy concern. Even in situations where limited international cooperation was needed to address transboundary environmental problems, the adoption of a few isolated treaties did not imply a normative shift towards recognition of global environmental responsibility. In leading whaling nations agreed the International Convention for the Regulation of Whaling (ICRW), which established the International Whaling Commission (IWC) and developed an annual ‘schedule’ of restrictions on the quantity, type, and methods of whale catches (Mitchell : ). The Convention’s most innovative aspect was its creation of a collective decision-making process for a shared common resource, which deviated from the traditional interpretation of sovereignty-based independent decision-making on whaling operations (Mitchell : ). But instead of pointing the way towards a new regulatory approach that treated oceans as a global common pool, the Convention functioned as a ‘whalers’ club’ (Andresen : ), privileging whalers’ short-term economic interests over scientific and environmental arguments. Similarly, the United States, Canada, and Japan signed the Convention for the High Seas Fisheries of the North Pacific Ocean in with the purpose of managing a scarce regional resource in order to protect their fishing industries rather than fish stocks (Flippen : ). Most of these treaties were driven by utilitarian conservationist concerns rather than a preservationist desire to protect nature as such.
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The whaling and fisheries agreements of the post-war era are a good example of how marginal environmentalist ideas were to international cooperation in the s and s. Marine pollution from shipping was another area in which states began to cooperate, though without endorsing a more far-reaching environmental agenda. The first significant achievement was the Convention for the Prevention of Pollution of the Sea by Oil, which was amended in . Together with two further conventions on the High Seas and the Continental Shelf, it limited shipping companies’ right to dump oil, required the installation of additional safety technologies, and established rights of inspection (Mitchell ). The post-war era thus saw the re-emergence of international environmental diplomacy and selective efforts to promote the collective management of natural resources. But none of this required international society to accept a universal responsibility for global environmental protection. Reviewing the record of the post-war era, UNESCO aptly noted in that ‘the nations of the world have lacked considered, comprehensive policies for managing the environment’ (Caldwell : ). The key transformative change only came in the late s and early s with the emergence of the modern environmental movement (Radkau : –). In his influential book The Environmental Revolution (), Max Nicholson captured the sense of a profound intellectual and political change that swept through many of the West's industrialised economies. Opinion polls show how popular concern for the environment in the United States had been rising since the mid-s. On April , the first Earth Day turned into the hitherto largest demonstration in US history (Flippen : ). Modern environmentalism reshaped domestic politics not just in North America but also in Europe. In contrast to the conservation movement, the new environmental campaign organisations were rooted in the grassroots politics of the new social movements, with large membership-based groups adopting a more overtly political and global stance. From a sociological perspective, the prolonged post-war experience of economic growth and rising prosperity gave birth to new post-material values that placed environmental quality above further gains in material consumption. But while post-materialism may have boosted preservationist ideals that saw an intrinsic value in nature, it was more explicitly anthropocentric concerns – about how to curb industrial pollution and improve the well-being of society – that gave modern environmentalism its wider mass appeal. The modern green movement wanted to protect the natural environment so that humans could thrive in it (Radkau : ).
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Global Environmental Responsibility in International Society
With the rise of a new environmental creed also came a new political focus and style of campaigning. New environmental NGOs (Greenpeace, Friends of the Earth) blamed the global ecological crisis on industry and capitalism. Whereas the conservation movement had nurtured close links with the political elite, favouring a consensus-oriented mode of influenceseeking, the new social movements sought to make environmental issues the subject of open political contestation over the future of industrial society (Radkau : ). Rather than cooperate with political elites, some campaign groups entered electoral politics with a view to changing the state from within. In Europe, newly created green parties entered parliaments in the s and even joined governments in the s. The modern environmental movement also succeeded in reframing environmental degradation as an essentially global problem. When in July Adlai Stevenson, US Ambassador to the UN, referred to the Earth as a little spaceship on which we travel together, ‘dependent on its vulnerable supplies of air and soil’ (Ward and Dubos : ), he could tap into the growing perception of the planet as an interconnected global ecosystem. Building on the insights of the science of ecology, which offered a more holistic view of nature, it became common in the s to refer to global ecological interdependencies and how the technological advances of industrialism posed a threat to global environmental stability. Indeed, when in NASA's Apollo crew took the famous ‘Blue Marble’ picture of the earth, the image resonated widely beyond scientific circles and reinforced the emerging notion of the earth as an interconnected and fragile ecosystem. While world society provided the initial impetus for this global normative change, political leadership in powerful industrialised countries played a critical role in creating the specific norm of environmental responsibility in international society. The rise of global environmental consciousness would not have had a lasting impact had it not evoked political responses in leading industrialised countries, above all in the United States. Already in the s, the Johnson Administration created a series of laws that firmly established environmental protection as a national policy domain (Wilderness Act of , Land and Water Conservation Act of , Solid Waste Disposal Act of , Water Quality Act of , Endangered Species Preservation Act of , Air Quality Act of ). Many of these laws proved inadequate, however, and had to be strengthened or replaced in later years (Flippen : ). President Nixon continued to expand federal authority in environmental policy, creating the US Environmental Protection Agency (US EPA) and National Environmental Policy Act
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(NEPA). Historians agree that electoral calculations rather than a genuine interest in nature protection were behind Nixon’s policy innovations (Flippen : ). Yet, the Nixon Administration’s institutional and legislative initiatives locked in bureaucratic support for an enhanced environmental responsibility. Importantly, America’s environmental policies and agencies were soon copied and further developed in other industrialised countries. The Nixon years also mark ‘the birth of modern American environmental diplomacy’ (Flippen : ). Nixon’s advisers, among them Russell E. Train and Henry Kissinger, advocated a greater US role in promoting global environmental protection primarily as a way of increasing domestic support for the administration and creating ‘a positive image of the US abroad’ (Hopgood : ). Train (: ) himself doubted that Nixon, who publicly proclaimed that the United States ‘had taken a leading role in international environmental cooperation’ (Flippen : ), believed in his own environmental rhetoric. Still, US leadership paved the way for the first ever UN conference on the environment. Held in , the Stockholm conference turned into a constitutional moment that formally established global environmental responsibility as a primary institution of international society. The origins of the UN conference go back to July when the Swedish UN Ambassador submitted a proposal for such an event to the Economic and Social Affairs Committee (ECOSOC) of the General Assembly. The Swedish initiative, which was prompted by growing domestic concern over environmental problems, most notably transboundary air pollution, was well timed and quickly gained the support of several industrialised countries, including the United States. Speaking before the UN General Assembly in , US President Nixon stated that ‘increasingly, the task of protecting man’s environment is a matter of international concern’ (Macekura : –). The time was ripe for a redefinition of how international society related to the global environment. With the UN General Assembly’s approval to convene the conference, diplomats and environmental experts held a series of meetings to work out the thematic focus of the conference and to agree on the main principles that would guide future international environmental action. The main challenge was to bridge major divisions between industrialised and developing countries in how they viewed the origins and urgency of the ecological crisis. Recognising the critical role that environmental campaign groups had played in the formation of the new environmental
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Global Environmental Responsibility in International Society
consciousness, NGOs were given a parallel ‘Environment Forum’ alongside intergovernmental debates at Stockholm, with some NGOs participating in the proceedings (Brenton : ). Initially, expectations for the UN conference were modest, also within environmentalist circles (see Holdgate : ). Part of the problem was that the preparatory process had clearly focused on ‘human uses of the environment’ while the preservationist wing of the environmental movement expected nature protection to be prioritised. Unsurprisingly, therefore, some activists were suspicious of the intergovernmental process and ‘resented the idea that governments were taking over’ (Holdgate : ). Growing rifts between the Western powers and the Soviet bloc also threatened to undermine the conference. The West refused to allow the German Democratic Republic – not a member of the UN at the time – to participate, which prompted the Soviet Union and most of its allies to boycott the Stockholm conference. Even more worryingly, deep divisions between the North and the South threatened to undermine the event. Developing countries objected to the emphasis that the North had put on pollution issues and the need to curb unsustainable forms of economic growth, as expressed in the Club of Rome’s report Limits to Growth. Instead, poorer countries sought to shift the focus to the links between underdevelopment, poverty, and resource scarcity, stressing the North’s historical responsibility for global ecological degradation. In , Brazil and several other developing countries submitted a UN General Assembly resolution (Resolution (XXVI) Development and Environment) stating that ‘no environmental policy should adversely affect the present or future development possibilities of developing countries’ (Holdgate : ). In the end, delegates at the Stockholm conference agreed to a compromise that stressed both the common responsibility shared by all states and the special responsibilities that developed economies needed to shoulder (on differentiated responsibilities, see Barral, in this volume). The conference adopted the Stockholm Declaration, marking the first explicit expression of global environmental responsibility as a core norm in international society. The Declaration was clearly a political compromise document, striking a careful balance between the need to protect resources and limit pollution, on the one hand, and references to the necessity of economic development and the sovereign rights of states to exploit their own resources, on the other. The outcomes of Stockholm may not have immediately impacted on policymaking, but laid the foundation for the
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expansion of the environmental agenda in subsequent years. This new normative commitment by states was not yet universally accepted, however, with the Soviet Union and its allies having boycotted the conference and developing countries remaining sceptical about what they perceived to be a northern environmental agenda. But for the first time in history, major powers in international society had come to recognise a normative commitment to cooperate on global environmental protection.
. Globalisation and Contestation: Global Environmental Responsibility from the Stockholm () to the Rio Conference () The Stockholm agenda still needed to be globalised in subsequent years. Despite environmentalism having various non-Western sources (Guha ), it was the industrialised countries that had made the case for a specific form of environmental responsibility in international relations. As with human rights, Western powers used their dominance in the international system to advance a particular environmental agenda that reflected their domestic norms but was global in ambition. By contrast, all communist countries and most developing countries were initially hostile to this agenda. It was not until the end of the Cold War and the UN Conference on Environment and Development in Rio de Janeiro that these countries too came to accept global environmental responsibility. By this time the international environmental agenda had broadened sufficiently to take on board non-Western perspectives. In this sense, Stockholm marked the end of a process of norm transfer from world society to international society, and the beginning of a process of norm diffusion throughout international society. By the time of UNCED in , the meaning of global environmental responsibility had evolved, not least to take on board the concerns of developing countries that sought to balance environmentalism with the goal of economic development. The Rio Summit also strengthened the principle of differentiation in defining countries’ international environmental responsibilities, which was to play a central role in the evolution of the climate regime from onwards (see also chapters by Barral, and Haflidadottir and Lang in this volume). The s witnessed several landmark developments that reinforced environmental stewardship as a new normative commitment in international society. The UN Environmental Programme (UNEP), the first UN agency dedicated to environmental protection, was established in . Based in Nairobi, far from the main UN locations and commanding only
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Global Environmental Responsibility in International Society
modest financial resources, UNEP could never hope to play a leading role as the champion of environmental objectives within the UN system. Still, it facilitated a gradual expansion of the international environmental agenda, promoted international scientific data gathering and information exchange, and prepared the ground for a number of international environmental treaties. In some cases, UNEP was able to make a difference by providing political leadership at crucial points in international negotiations and engaging transnational actors in the intergovernmental process. Among the first successes of the new international environmental diplomacy were the Convention on International Trade in Endangered Species (CITES ) and the Convention on Long-Range Transboundary Air Pollution (CLRTAP ), which signalled international society’s resolve to tackle transboundary environmental problems through international cooperation and law. The s saw a further expansion of the international environmental agenda with the first treaty to address atmospheric pollution. The Vienna Convention and its Montreal Protocol were negotiated to reduce and eventually eliminate global emissions of ozone layer depleting substances. Driven by concerns over adverse health effects of a thinning ozone layer, especially in countries near the polar regions, leading industrialised countries (United States, Germany, France, Britain, and Japan) agreed to a formula whereby their chemical industries, which controlled nearly all global production of ozone-depleting substances (ODS), would gradually scale back such production. Reflecting the growing recognition of the differential environmental responsibilities, the Montreal Protocol granted developing countries a ten-year grace period to phase out their own ODS, offering them international aid to finance the transition process. Widely judged to have been a diplomatic and environmental success, the Montreal Protocol came to embody both the gradual expansion and strengthening of international society’s normative commitment to global, and not just national, environmental protection. Close involvement of leading corporations also signalled greater willingness among the business community to take on an environmental responsibility (Falkner : chapter ). By the end of the decade, a major new international conference was being prepared, which was supposed to take stock of international environmental policymaking and push for greater acceptance of global environmental responsibility. Industrialised countries were keenly aware of the need to gain greater legitimacy and support for global environmental protection, particularly in the developing world. Industrial pollution issues
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in the North still dominated the international agenda, but by the s developing countries were beginning to push more actively for international recognition of their own environmental concerns. This was partly about giving greater prominence to distinctly southern environmental concerns, concerned less with industrial pollution than poverty-related ecological problems, and partly about creating a more explicit balance between environmental protection and developmental needs. The Earth Summit would come to play a key role in reinforcing international society’s commitment to environmental stewardship, but with developing countries’ concerns more fully reflected. The intellectual blueprint for this renewal of the environmental agenda was provided by the Brundtland Commission report ‘Our Common Future’. The report promoted the idea of sustainable development as the ideational core of the new global compromise that would make environmental responsibility a truly global norm. Ever since its promotion by the Brundtland Commission, the concept has been criticised for adding little substance to the debate on how to achieve economic development while protecting the environment. Yet it managed to build a broad coalition of influential actors, from industrialised countries to developing countries and the business sector, that would make the Rio Earth Summit a success. To be sure, the Brundtland report was not the first occasion when sustainable development had been promoted internationally. Already in , IUCN’s World Conservation Strategy introduced the concept in international policy discourses. But because IUCN prioritised protecting living resources and failed to pay adequate attention to the political and economic context in which environmental issues manifested themselves in developing countries (Bernstein : –), it was less successful in building the necessary intellectual and political coalitions behind its sustainable development agenda. When the UN Conference opened in Rio in , the old tensions and unresolved dilemmas of the Stockholm conference agenda resurfaced. Northern ideas of promoting nature protection and combating industrial pollution clashed with southern notions of a broader developmental agenda that linked sustainability to a more equitable distribution of resources and responsibilities. While all three environmentalist traditions – the preservationist, utilitarian, and pollution control approaches – had distinctive northern roots, countries from the Global South were most likely to engage with the utilitarian tradition that emphasised the need to protect natural resources for the benefit of human societies. However, in contrast to northern interpretations that emphasised the interests of future
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Global Environmental Responsibility in International Society
generations, representatives of the Global South attached greater importance to a balancing of environmental and economic needs of current generations. The concept of sustainable development, as expressed in the Brundtland Report, softened this conflict by speaking of a balance between the needs of current and future generations, though without resolving the inherent tension. To some extent, the new spirit of international cooperation after the end of the cold war helped to create a more conducive diplomatic environment. More important, however, was the change in attitudes among southern elites since , which was driven by the growth of environmental concerns and the creation of environmental policies and institutions in their own countries, and greater engagement with environmental issues by multilateral development banks such as the World Bank (Williams ). Societal awareness had also grown, and a significant number of southern NGOs had become engaged in the multilateral process of UNCED (Bernstein : –). The norm of environmental stewardship had not only spread among political elites worldwide but was also increasingly rooted in domestic societal values in an ever-larger number of countries. The Rio Earth Summit concluded with the adoption of the Rio Declaration, which updated the Stockholm Declaration and encapsulated the new spirit of sustainable development and multilateral environmental cooperation. Its core comprises a statement of global environmental responsibility, universally agreed by the members of the UN. But this general commitment to ‘cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’ is juxtaposed with the principle that ‘[i]n view of the different contributions to global environmental degradation, States have common but differentiated responsibilities’ (Article ). Developing countries succeeded in elevating their developmental aspirations and rights as part of the sustainable development agenda (Articles , , ) and asserting their sovereign right to exploit their own natural resources (Article ). Instead of defining global environmental responsibility as a shared responsibility for the global commons, based on the principle of the ‘common heritage of mankind’, the Rio compromise stressed the responsibility of each state to contribute to cooperative efforts that are multilateral in nature and reflect different levels of developmental achievement. In doing so, the Rio conference firmly anchored global environmental responsibility in a normative framework that stressed national sovereignty, international equity, and developmental principles.
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The equity dimension of Article was reiterated in the common but differentiated responsibilities (CBDR) norm of the UN Framework Convention on Climate Change, also agreed at the Rio Summit in . The agreement represents a delicate balance between the idea of universally shared environmental responsibilities, on the one hand, and differentiation with regard to the climate mitigation burden and provision of international environmental aid, on the other. The CBDR norm did not resolve all North-South tensions and has come under growing attack in recent years, particularly as the rapid economic expansion rise in greenhouse gas emissions among emerging economies has undermined the burden-sharing formula of the Kyoto Protocol (Hurrell and Sengupta ). Still, recognition of global justice concerns and differential treatment remains a cornerstone of the global political bargain that helped globalise environmental responsibility and embed it within the normative structure of international society (Falkner ).
. Conclusion The emergence of global environmental responsibility as a fundamental norm, or primary institution, in international relations represents a dramatic expansion of the normative horizon of international society. It is the result of a long process of societal and international change that can be traced back to the emergence of the environmental movement in the nineteenth century, though this transformative process only came to fruition after the Second World War. It is a prime example of successful norm transfer from world society to international society, enabled by a transnational alliance of environmentalists and scientists, as well as representatives of states and IOs, that acted as norm entrepreneurs to inject environmental ideas into the international agenda. In the end, however, its successful establishment at the international level depended on it being championed by powerful and influential states, which promoted the internationalisation of environmental commitments they had already made in their domestic context. As such, the greening of international relations represents a complex process of political enmeshment between international and world society. The norm of environmental stewardship, officially acknowledged in the Stockholm Declaration and slightly modified in the Rio Declaration, was never codified in precise terms. Instead, it represents an amalgam of political, legal, and moral meanings that different actors attached to the idea of global environmental protection. To some extent,
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Global Environmental Responsibility in International Society
preservationists’ moral commitment to elevating nature above pure use value for human consumption provided a key inspiration. Environmentalism poses a normative challenge that operates at different levels, from individuals and their ethical orientation, to the societal and state level, and also the interstate level. It amounts to a revolution in the moral landscape of humanity by bringing about an expansion of humanity’s ethical horizon, beyond that of interhuman relations. It gives rise to new values centred on nature and aims at a reordering of the relationship between humans and their natural environment. By turning environmental protection into a moral duty – targeting individuals and states – it expands humanity’s moral vocabulary and accords nature a new ethical status (Nash : –). It inserts into public consciousness and public policy a duty of care that goes beyond human welfare to include the integrity of nature. Because of the global interconnectedness of the earth’s ecosystems, it was a question of time for the global commons and the planet as a whole to become a normative concern for international society. The creation of environmental stewardship was far from straightforward, however. The preservationist agenda of more radical versions of environmentalism was never able to establish itself internationally, beyond some limited efforts to protect endangered species and ecosystems. Instead, a more anthropocentric approach to protecting the environment in order to serve human needs became the main foundation for the political compromise that underpinned the Stockholm and Rio conferences. In the end, the notion of a human right to a clean environment rather than nature’s intrinsic value became the main motive behind international society’s adoption of environmental responsibility. This anthropocentric orientation was reinforced when developing countries successfully claimed proper recognition for their developmental needs and a better balancing of environmental responsibility with the demands of economic growth and national sovereignty. Environmental responsibility of states would also be conditional on the realisation of other, and often competing, political and economic objectives. Environmental stewardship was thus circumscribed by other, more established, fundamental norms of international society (Falkner and Buzan ). In the nearly five decades that have passed since Stockholm, the international community has made good progress in institutionalising environmental objectives and establishing international processes to agree new environmental targets and objectives. The emergence and strengthening of global environmental responsibility thus manifests itself in the growth of an ever-denser web of international rules, agreements and organisations
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(so-called secondary institutions), and the universalisation of an environmental citizenship principle that expects states to engage in multilateral efforts to tackle global environmental degradation. In this sense, Linklater is right when he points out that environmentalism is ‘among the most radical changes of political orientation of the last three or four decades’ (: ). But the success of progressive normative development has done relatively little to prevent the further degradation of the global environment. There can be little doubt that, in the twenty-first century, environmental stewardship is still honoured more in the breach than in the observance.
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Common but Differentiated Responsibilities and Justice Broadening the Notion of Responsibility in International Law Virginie Barral . Introduction In a strictly legal sense, the notion of responsibility in international law involves the failure by a legal person, traditionally a state, to fulfil an international commitment. It presupposes the violation of an international obligation for which that state can be held liable. For the state to be held internationally responsible in that specific sense, the internationally wrongful act must be attributable to this state and this violation must be the cause of loss or damage suffered by the legal person (i.e. another state) to whom the obligation was owed. The concept of common but differentiated responsibilities (CBDR) however does not squarely fit within that scenario of traditional international responsibility. Primarily based on the notions of equity and justice (Shelton : ; Rajamani : ; Cullet : ), and premised in particular upon the principle of intragenerational equity, CBDR, as a framework (Birnie, Boyle, and Redgwell : ) or structuring principle (Bartenstein : ) of the international legal order, hinges upon responsibility not only in its causal, but also in its moral dimension. Its application involves the elaboration of differentiated legal standards and implementation mechanisms according to both responsibilities and capabilities of states. It further requires, crucially, the transfer of financial resources and relevant technology from those more capable (and responsible) to those less well endowed. Differentiated commitments also work as a condition sine qua none for the recognition of a common responsibility towards environmental protection. Without these, the mere adoption of global environmental protection regimes such as the climate change regime or the Convention on biological diversity would simply not have been possible (Birnie et al. : ; Deleuil : ; Arbour : ).
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This chapter explores the meanings and interpretations in international law of the notion of responsibility stemming from its inclusion and use in the principle of CBDR, and it attempts to conceptualise the various frameworks of responsibility that the principle gives rise to. It contends that the competing conceptual groundings attributed to CBDR as well as the variety of its practical legal translations contribute to a broadening of the understanding of the notion of responsibility in international law which straddles along a mix of scenarios, ranging from moral to causal responsibility, with a number of stops in between. In order to capture the competing contentions relating to the meaning of responsibility in the CBDR principle, a conscious choice has been made to approach the notion from the broad perspective of international environmental law and across several sub-policy fields. It thus dips into the ozone depletion regime, biodiversity protection, the law of the sea, or the WTO, as well as climate change law wherever useful lessons may be learned for the framing of responsibility. It is suggested that this approach is more able to shed light not only on the practices of responsibility among various communities within a specific policy field such as climate governance, but also across policy fields. Hence the meanings of responsibility attached to CBDR may well differ between the actors of the climate change debate and those of the ozone depletion regime. The chapter proceeds in four steps. It starts by reviewing the competing meanings attached to the notion of CBDR in the texts in which the notion has been initially negotiated and highlights the resulting dual conceptual grounding to which it gives rise. It then assesses the relationship of the principle to international law and details some of the ways in which it is used to influence legal content. The following section maps the various meanings of CBDR across environmental policy fields and specifically surveys the practical legal translations of the principle. The last section attempts to conceptualise the different responsibility frameworks deriving from the varying conceptual groundings and meanings of CBDR before drawing some general conclusions.
.
Negotiating the Meaning of CBDR and Competing Conceptual Groundings
The most authoritative expression of the principle of CBDR is to be found at principle of the Rio Declaration on Environment and Development of which has been endorsed by the international community as a whole. Principle reads as follows:
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Common but Differentiated Responsibilities
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technology and financial resources they command.
Yet, this text reflects an extremely fragile compromise between the competing views of the drafters along a North-South divide. While conceptually it is undeniable that the foundations of the principle lie in the twin notions of partnership/commonality of interests, on the one hand, and equity/fairness, on the other, states’ views diverge substantially on the rationale for its equitable dimension. .. Common Responsibilities and Cooperation Environmental threats such as the depletion of the ozone layer, global warming, or the loss of biological diversity affect all states relatively indiscriminately. The realisation of these global environmental threats and interdependencies has logically given rise to a commonality of interest in tackling such dangers by the international community. From there stems a common responsibility of all states in actively participating in the design and implementation of international legal regimes aimed at addressing these threats. For some this translates in a shared obligation of all states towards protection of environmental resources (Sands and Peel : ), as well as an obligation of cooperation to that end (Matsui : ). The common responsibility dimension of the principle in this sense is a translation of the common interests that states share and the fact that they should collectively contribute to their realisation. This commonality of interests also reflects the solidarity by which the international community is bound in protecting the global environment. This has readily been accepted by states in the drafting process of principle without much contestation. Tracing the negotiations of the principle, Cullet highlights that the cooperation and partnership dimension of CBDR appears in early drafts of the principle and, not surprisingly, in proposals from developed countries such as the United States (USA), Japan, or the European Economic Community (Cullet : –). But it can also be found in proposals emanating from the developing world, such as for example in a draft emanating from China and Pakistan which points to the common responsibility of all states for containing, reducing, and eliminating global environmental damage.
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Solidarity, however, will also necessarily imply a differentiation of responsibilities among international legal subjects (Cullet : ). Whereas all states are entitled or required to participate in international response measures to a threat, or in other words, whereas all states have a common responsibility in protecting the global environment, not all states will share the same responsibility to that effect. Responsibilities are hence differentiated, and it is with respect to this second dimension of the principle that the consensus on the meaning of CBDR is much shakier (Arbour : –). ..
Contested Historical Liability
By referring to the varying levels of contribution to existing global environmental problems, the principle seems to acknowledge that the ‘wealthy North’ bears a heavier responsibility in the current levels of environmental degradation due to both historic contributions and ongoing patterns of production and consumption. This is also partly recognised in the preamble to the United Nations Framework Convention on Climate Change which notes that ‘the largest share of historical and current global emissions of greenhouse gases has originated in developed countries’. The high levels of economic development in industrialised countries have been achieved to a large extent at the expense of a healthy environment and this should readily translate into a heavier responsibility on the North to fix the problems they have created. However, while the South argues – with regard to equity and justice purposes – that historic contributions should form the basis for a legal responsibility (as in liability) to eliminate or compensate for the damage caused, as seen for example in the earlier draft of the principle proposed by China and Pakistan, this grounding of CBDR is firmly rejected by the North which argues notably that it cannot be held liable for the current consequences of past behaviour that was not illegal at the time it took place. To take the example of global warming, this suggests that since the consequences of fossil fuel burning were unknown at the time the industrial revolution started until a few decades ago, the North should not be held legally responsible for damage caused by past emissions. The rejection of legal consequences stemming from historic contributions is particularly clearly expressed in the interpretative statement to principle attached to the Rio Declaration by the United States according to which principle
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Common but Differentiated Responsibilities
‘highlights the special leadership role of the developed countries, based on our industrial development, our experience with environmental protection policies and actions, and our wealth, technical expertise and capabilities. The United States does not accept any interpretation of principle that would imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries’.
At best, thus, any consensus on a differentiation of responsibilities grounded in historic contributions to environmental degradation is turned towards the future (Bartenstein : ) and insofar as any liability may be accepted by the North, it would only be liability for current and future behaviour. ..
Equity and Justice
At the same time however, high levels of economic development also mean that the ‘wealthy North’ is in a much better position to tackle existing issues, adapt to evolving environmental conditions, or prevent future threats, than the less well endowed ‘South’ in view of their financial capabilities and technological advances. Equity and justice thus also command that responsibilities be differentiated on the basis of varying capabilities, this constituting for the North the core grounding for the differentiation of responsibilities, as reflected in the USA’s interpretative statement. Although these common but differentiated responsibilities may not necessarily translate into differing liabilities (see however discussion in Section .), they will translate into differing legal standards imposed on states according to both contributions (at least current) and capabilities. The notion of ‘differentiated responsibilities’ thus primarily gives rise to differentiated obligations (Bartenstein : ) and conditions for implementation (Maguire : ), and the crux of the CBDR principle lies on the differential legal treatment between states that it commands. From this point of view, the differentiation of responsibilities and commitments are an expression of equity and fairness. In legal parlance, ruling in accordance with equity, or ex aequo et bono, may either allow the application of legal rules to be displaced in favour of the application of general principles of justice (Lowe : ), or it may more modestly allow the strict application of a rule to be corrected by considerations of justice or equity to avoid any unjust outcome (Georges Pinson (France) v. United Mexican States ). And justice, social, and moral concerns are clearly the bases on which the differential treatment rests, since those in
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a more favourable position will be required to undertake more obligations towards environmental protection and assist states in a less favourable position through financial and technology transfers (see further infra ). More specifically, CBDR can be seen as an expression of the principle of intra-generational equity, a key constitutive element of sustainable development, which requires a fair repartition of the fruits of development within one generation, i.e. a fair distribution of wealth between rich and poor (Barral : –). Ultimately, the differentiation of responsibilities according to equity stems from a deeply contested dual grounding: historic contributions according to the South, capabilities according to the North. But beyond the controversies relating to its foundations, the principle of CBDR is thus intimately connected to the notion of justice both in its corrective (Shelton : ) and distributive dimensions (Cullet : ). CBDR hinges upon corrective justice by requiring developed states to take the lead in the fight against environmental degradation, in the adoption of mitigation and adaptation measures, and in assisting the developing states in achieving their own commitments, due at least to their current contributions (and possibly historic contributions too) to existing problems and threats. But CBDR also hinges upon distributive justice. The differential treatment that it commands is also grounded on states’ differing financial resources and capabilities: the better endowed, the heavier the commitment. In that sense, the differentiation of obligations according to present distribution of resources and powers aims to achieve substantive equality through the medium of distributive justice (see further Section .).
. CBDR’s Influence on the Law CBDR’s contested conceptual grounding, this section shows, necessarily affects its relationship to international law, not only insofar as the principle struggles to be recognised as a binding legal norm, but also insofar as it struggles to influence the outcome of legal disputes before international judges, even where the parties’ claims rely on it. Despite these obstacles and the reluctance to accept claims based on CBDR, the principle is certainly not legally irrelevant. In fact, it is contended that CBDR is particularly effective in influencing the content of international law at design. Despite its recognition as a legal principle (as testified by its inclusion at principle of the Rio Declaration on Environment and Development), and the inclusion of the principle of CBDR itself in some multilateral
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Common but Differentiated Responsibilities
environmental agreements such as the United Nations Convention on Climate Change (Article ()), international lawyers generally agree that it does not yet constitute a legally binding rule per se (see Stone : and ; Rajamani : ; Birnie et al. : ; Bartenstein : ; Cullet : ). Bartenstein notes that even though CBDR may well be vested with fundamentally norm creating character, in that it could require states to promote equitable international relations (the objective) through the means of differential treatment (the technique), the principle remains too vague and uncertain to lend itself to sufficient state practice and opinio juris. The recognition that CBDR constitutes a legally binding principle for the international community as a whole is also hampered by the USA’s interpretative statement to principle of the Rio Declaration, and by the general division between developed and developing countries as to its meaning and implications. The fact that CBDR does not sit comfortably within traditional legal parameters is also reflected in the very little use that international judges make of it despite a number of (arguably limited) claims based on the principle. Because of its still uncertain legal status, judges will generally not appeal to the principle of CBDR per se. However, they may, on occasion, consider whether certain states or groupings of states should be accorded preferential or differential treatment. Such is the case in the WTO context. In this vein, a Panel acknowledged that article XVIII:B of the GATT allowing developing countries to temporarily maintain balance of payment restrictions reflected a recognition of the specific needs of developing countries and embodied special and differential treatment (India – Quantitative Restrictions , para .). The possibility of differential treatment was again accepted in a report involving the EC and the preferential tariff system that it grants developing countries (European Communities – Conditions for the Granting of Tariff Preferences ()). On occasion, some parties have directly invoked the principle of CBDR in order to found their claim for preferential treatment. Russia, who was facing difficulties with the implementation of its obligations under the Kyoto Protocol to the Climate Change Convention, activated its noncompliance procedure claiming that in view of the principle of CBDR, it should be granted financial help to assist in the compliance with its obligations. Though the Committee did not follow Russia’s claim relating to the legally binding nature of CBDR, it did grant it some form of financial relief in view of the difficulties faced by countries in transition (Compliance Committee of the Kyoto Protocol , Decision VII/, Doc. UN UNEP/OzL.Pro./: ; Hellio : ).
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Whereas in the cases so far mentioned CBDR, or more broadly the differentiation of responsibilities, is invoked to negotiate preferential treatment, CBDR or the claim for preferential treatment may be resorted to with a view to escape liability. In a request for an advisory opinion to the International Tribunal for the Law of the Sea (ITLOS), some developing countries sponsoring activities by private entities in the deep seabed area under the United Nations Convention on the Law of the Sea (UNCLOS) were claiming that in order for them to be able to develop such sponsoring activities, they should be granted preferential treatment in terms of their environmental liabilities, and in particular their due diligence and precautionary duties as well as their obligation to carry out environmental impact assessments. In essence their argument was that preferential treatment did not just concern technology transfer provisions or taking their special situation into account when establishing rules concerning the sharing of benefits. Rather preferential treatment should extend to preferential responsibilities and in particular liabilities. In other words, the specific needs of developing countries should mean that they could escape liability for environmental damage more easily than better endowed parties. According to ITLOS however, the preferential treatment accorded developing countries in terms of standards and commitments could not be extended to responsibilities or liabilities. The Seabed Dispute Chamber of ITLOS found that while UNCLOS did cater for the special needs of developing countries in terms of according preferences to this category of states in the design of their international obligations, ‘none of the general provisions of the Convention concerning the responsibilities (or the liability) of the sponsoring State “specifically provides” for according preferential treatment to sponsoring States that are developing States’ (Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area () para –; Arbour, : ). In other words, the principle cannot be extended to provisions that do not specifically provide for this possibility, and in this particular case, it could not be applied to reduce or modify the liability of the developing sponsoring state. An occasion was also missed by the Inter-American Commission on Human Rights to engage with CBDR – this time in an attempt to use the principle to impart liability and claim compensation for damage suffered. In , the Circumpolar Conference filed a petition before the Commission alleging that the USA’s failure to reduce greenhouse gas emissions and their particular contribution to global warming had a disproportionately detrimental impact on the Arctic region, which in turn affected the Inuits’
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Common but Differentiated Responsibilities
culture and way of life and hence violated their human rights. Unsurprisingly this petition was found inadmissible. Had it been entertained however, the responsibility of the USA for the breach of the Inuits’ human rights would have had to be assessed on the basis of the CBDR principle. According to Atapattu, ‘responsibility would have been for the portion of climate change that the United States was responsible for causing’ (Atapattu : ), that is on the basis of the USA’s differentiated responsibility. It is interesting to note that despite finding the petition inadmissible, the Commission did subsequently hold a hearing in where representatives of the Circumpolar Conference were given an opportunity to present their argument. This may be the timid opening of a path towards human rights bodies’ receptivity to CBDR claims. Claims based on CBDR may thus be advanced to request preferential treatment, escape responsibility, or impart liability. For now however, CBDR remains largely outside of the international judicial discourse. Yet, one notable exception can be found in the jurisprudence of the WTO dispute settlement body, where the only direct use by an international judge of the principle for the solution of the dispute at stake has happened. In the Shrimp-turtle case, Malaysia contested the compatibility with WTO rules of a US measure aimed at the protection of sea turtles which banned the import of shrimps caught without turtle excluder devices. While the legitimacy of measures aimed at the protection of exhaustible natural resources such as sea turtles had been previously recognised by the dispute settlement body, the Appellate Body had nevertheless ruled the measure in breach of WTO rules as the United States had failed to negotiate with Malaysia on appropriate bilateral or multilateral means to protect sea turtles. Its unilateral measures were thus deemed unjustifiable discrimination (United States – Import Prohibition of Certain Shrimps : para ). In a follow up to the original dispute, Malaysia brought the case again before the dispute settlement body arguing that the USA had failed to fully comply with the initial judgment. It is on this occasion that the WTO panel hearing the dispute resorted to CBDR. In its recommendations to the parties, it urged ‘Malaysia and the United States to cooperate fully in order to conclude as soon as possible an agreement which will permit the protection and conservation of sea turtles to the satisfaction of all interests involved and taking into account the principle that States have common but differentiated responsibilities to conserve and protect the environment’ (United States – Import Prohibition of Certain Shrimps : para ., p. ). Yet, in this instance, rather than being used to allocate responsibilities, the principle of CBDR is called
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upon by the judge to guide the parties in the design of an agreement. It is thus used to influence legal content, and this is where the principle’s relationship to the law is most significant. Indeed, beyond whether CBDR already constitutes a customary principle of international law or not, its impact on the structure of international legal obligations and on international environmental law more broadly is certainly quite palpable. By calling for differential treatment according to both contributions (responsibility) to environmental damage and capabilities to address threats it directly impacts on the design of multilateral environmental agreements. Environmental protection regimes aimed at tackling global threats will now generally be structured around some form of differentiation of commitments and obligations in line with the particular situation of state parties. It is also recognised to have significant normative value in ‘setting parameters within which responsibilities are to be allocated between developed and developing states in the subsequent negotiation or in the interpretation of existing agreements’ (Birnie et al. : ). From this point of view CBDR may be referred to as a framing or structuring principle insofar as it commands the elaboration of international legal regimes expressly endorsing differential treatment and differentiated standards and commitments of parties, thus creating sub-legal regimes within the broader legal framework. This entrenchment of differential treatment within international environmental law, by application of the CBDR principle, allows for quite an extraordinary dent in the traditional structure of international law. At the basis of the international legal system are the founding principles of the sovereign equality of states and reciprocity. However, the application of CBDR implies a necessary move away from reciprocity. Obligations are not reciprocal since they are differentiated. States may still be formally equal, but the legal regimes designed on the basis of CBDR incorporate differentiated commitments with a view to achieve substantive equality. Beyond this, differentiation is also meant to ensure the effectiveness of the system. It is only by setting realistic obligations on the parties according to their capabilities that full implementation may be ensured (Cullet : ). From the outset, without the recognition of CBDR and the incorporation of differentiated commitments, the adoption of global environmental treaties may not have been possible. For Birnie Boyle and Redgwell, ‘[a]cceptance of the principle of common but differentiated responsibility was one of the conditions for ensuring the widest possible participation by developing countries in the Rio instruments’ and ‘consensus on common higher standards would have been impossible to
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Common but Differentiated Responsibilities
achieve; consensus based on common lower standards would . . . have meant failure to achieve any notable advance on the status quo’ (Birnie et al. : ). CBDR and differentiated treatment are thus key to the success of global environmental management at several levels. To tackle a global threat, the widest participation and cooperation in addressing the threat is essential. CBDR offers sufficient leverage to developing countries to secure their participation in the system in the first place as they are able to condition this participation in return for financial and technological assistance from the North and more generally recognition of their special needs and situation. Without it, the South would have little incentive in agreeing to a regime that is in essence going to hamper their economic development, especially as historically their contribution to creating the problem would have been minimal. Once participation is secured, differential treatment allows for the lowest common denominator issue to be avoided as more stringent obligations may be imposed on those more able to cope. On the part of the North differential treatment is acceptable both because of the need to secure the widest possible participation and because of the recognition of the different levels of contributions to current environmental problems and the differing capabilities in addressing them. As French puts it ‘common responsibility may provide the basis for international action, but it is the concept of differentiation which will hopefully promote the efficacy of such action’ (French : ).
. Practices of CBDR and Practical Legal Translations The differentiation that CBDR commands may be translated in a number of ways in regulatory regimes. This section examines how the practices of different communities – that is different communities of state parties to conventional regimes – in designing regulatory regimes across different environmental sub-policy fields have led to varying translations of CBDR. Contrasting practices thus emerge between the protection of the ozone layer regime, the protection of biodiversity regime, and the climate change regime. ..
Differentiated Obligations
Surely, the most formal form of differentiation will be through the adoption of differentiated obligations. Referred to as ‘strictly differential norms’ by Cullet (Cullet : ), they introduce different
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commitments for different countries. One obvious but isolated example of this type of differentiation can be found in the climate change regime and in the Kyoto Protocol in particular whereby only Annex countries (i.e. developed country parties and countries with an economy in transition) undertake greenhouse gas emissions reduction commitments. Translation of the principle of CBDR into strictly differentiated commitments according to categories of countries has been a bone of contention in the recent climate negotiations and has threatened their collapse on numerous occasions. Yet, in a groundbreaking accord, countries finally agreed to softer forms of differentiation than those of the Kyoto Protocol. States have, at the Paris Conference, committed to a target applicable to all to hold the increase in temperature to below C above pre-industrial levels. But individual commitments and mitigation efforts are to be enhanced progressively according to national circumstances and reflecting states’ differentiated responsibilities and capabilities. .. Differentiated Implementation Conditions A softer but no less effective form of differentiation may be expressed not via differentiated obligations but via differentiation at the implementation level (Maguire : ), such as via differentiated time frames for compliance with commitments. In fact, the Montreal Protocol on Substances that deplete the Ozone Layer specifically catered for delayed implementation timeframes for developing countries. In particular, countries with low per capita emissions of ozone depleting substances could delay implementation of their phasing out obligations by ten years (Article ()). Differentiation may also intervene at the implementation level not by delaying time frames, but by providing assistance towards implementation to a specific group of countries. This will be done through technology transfers, capacity building, or financial aid for implementation purposes. This form of differentiation will be especially strong when implementation of developing countries’ conventional commitments is made conditional upon financial and technology transfers from the North to assist the South in meeting the incremental costs incurred by such implementation. The Montreal Protocol is again a case in point of such differentiated responsibilities. Its Article () underlines that the implementation of control measures by developing countries’ parties will depend upon effective implementation of financial cooperation and transfers of technology, and a Multilateral Fund has been created to this end under Article .
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Common but Differentiated Responsibilities
This is a typical example of the leverage that developing states have been able to exercise in the negotiation of multilateral environmental agreements and that the North has been ready to concede on in order to secure near-universal participation, which is obviously absolutely central to effectively tackling a problem such as depletion of the ozone layer. Birnie, Boyle, and Redgwell note that the obligatory character of the financial and technology transfers is in this context irrelevant, if developed states want developing ones to actively participate in the regime, they must honour this engagement. This, according to these authors, exemplifies that solidarity is a key element of CBDR (Birnie et al. : ). It is also confirmation that the structure of commitments within the ozone protection regime can be seen as a direct application of the principle of CBDR. This is so despite the fact that the Montreal Protocol was concluded before () the formulation of the principle in the Rio Declaration as the negotiations under the Montreal Protocol have since often referred to CBDR as a guiding principle (Pauw et al. : ). .. Differentiation through Contextual Norms Another differentiation technique does not require the design of strictly different obligations according to the parties’ varying responsibilities/capabilities and does not subject the implementation of one’s commitment to the proper implementation of another’s. All parties will be subject to the same obligation, but the design of the rule incorporates some flexibility allowing for differentiation as to the extent of the required efforts towards implementation according to capabilities. Magraw refers to these type of norms as ‘contextual norms’ (Magraw : ) in that they are qualified according to context and circumstances. This will include a provision laying out the obligation whose implementation will only be required ‘as far as possible’ or according to the parties ‘particular conditions and capabilities’ as is the case in the Convention on Biological Diversity, Articles and . For Cullet ‘contextualisation provides the necessary flexibility to allow all countries to sign up to the same commitments, while being aware that not all countries have the same capacity to implement the obligations undertaken. In this sense, contextualisation contributes to the realisation of a more equitable international law by recognising that not all countries face the law in the same way’ (Cullet : ). The new form of differentiation devised in the Paris Climate Agreement is arguably a hybrid between strictly differential norms and these softer contextual norms. Indeed, the parties’ mitigation commitments, devised
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through nationally determined contributions, are subject to selfdifferentiation in the light of different national circumstances. Parties may thus commit to strictly differential mitigation efforts, however, mitigation commitments are designed to regularly progress as national circumstances themselves evolve. This thus opens the door to an evolutionary and dynamic interpretation of the different national circumstances warranting differentiation (Maljean-Dubois : ; Rajamani : ). The duty to regularly – and ambitiously – revise commitments is also akin to a contextual norm as the level of mitigation effort expected will be dependent on national circumstances, but subject to a due diligence standard (Voigt and Ferreira : ).
. CBDR and Multidimensional Responsibilities Depending on the basis for differentiation adhered to (historic contributions, capabilities, cooperation) and the practices of CBDR, that is the modes of differentiation adopted, the principle straddles along a mix of ‘responsibility’ scenarios. ..
Corrective Justice
When the rationale for differentiation of commitments and responsibilities is premised on historic contributions to the creation of a global environmental problem, the aims of differentiation are to put ‘into balance something that has come out of balance because of an injustice’ (Shelton : ). The example of climate change is a case in point. Industrialised countries have historically contributed most to the concentration of harmful gases in the atmosphere and are now responsible for ongoing global warming. For Shelton, in this context CBDR provides a ‘corrective justice basis for obliging the developed world to pay for past harms as well as present and future harms’ (Shelton : ). Clearly in this case, the criteria for distributing responsibility, the differentiation of commitments and obligations, is not based on states’ differing capabilities but on their differing responsibility, and corrective justice will justify demanding that developed countries pay for any reductions or modifications the developing world has to make since industrialisation has ‘unfairly circumscribed the ability of the developing world to pass off externalities on the environment’ (Shelton : ). In this light, financial and technology transfers commitments on the part of the North may be seen as corrective payments for past wrongs; so would the undertaking of more burdensome and
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Common but Differentiated Responsibilities
financially expensive commitments. This is certainly the view adopted by many developing countries, and potentially even some developed states too. Mickelson notes for example that during the negotiations of the Montreal Protocol developing countries argued that their demands for transfer of resources were based on equity and not expediency. They also made clear that this was a demand for corrective rather than distributive justice as evidenced by the use of the language of ‘compensation’ for the incremental costs incurred (Mickelson : ). Despite this clear corrective element, when CBDR is premised on historic responsibilities, it does not necessarily imply that the notion of responsibility should be understood as liability, as in, engaging the legal responsibility of the state (though it may well do that too) since it impacts on the rule at design. Yet, for Erskine, whilst moral responsibility involves ‘being answerable for a particular act or outcome in accordance with what are understood as moral imperatives’, causal responsibility ‘focuses on how a particular outcome is generated and need to be tied to a purposive action’ involving ex post facto assessments of the nexus between an agent’s actions or inaction and a resulting set of circumstances (Erskine : ). In this context, the nature of responsibility here is thus clearly causal. However, the compensation takes place through the differentiation of commitments undertaken in the legal regime designed to tackle the global problem created, to which the historically not responsible parties also agree to participate in view of their common interest in averting the threat, rather than through liability. In addition, insofar as industrialised states accept their responsibility for historic contributions, responsibility here moves beyond accountability and flirts with the notion of obligation. In short, industrialised countries are the responsible actors, it is their past behaviour that has created current problems, and their responsibility to ‘compensate’ is towards developing countries. .. Distributive Justice When the rationale for differentiation is not based on states’ historic or current contributions to an environmental problem but rather on their varying capabilities to tackle it, it is the distributive justice foundation of CBDR that is called into play. Through the imposition of unequal obligations, and the allocation of shared resources and environmental burdens according to access and capabilities, international law seeks to address existing inequalities and achieve distributive justice. According to Cullet, distributive justice goes beyond corrective justice since it is not
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limited to compensation for harm done but because it also ‘seeks to identify whether the existing distribution of entitlements and resources is appropriate to ensure substantive equality’ (Cullet : ). ‘Capabilities’ is readily accepted as a basis for differentiation by both developed and developing countries. Developing countries because they see in it a rationale for distributive justice and the recognition of their special needs by the law. Developed countries, because this basis is more acceptable to them than the recognition of responsibility on the basis of historic and current contribution, but also because they are ready to take on a leadership role in the fight against environmental degradation, as expressed in principle of the Rio Declaration. The readiness to take on such a leadership role may well be the result of a sense of urgency combined with moral arguments and the prospect of some economic or financial gain (technology transfer for example may lead to the opening of new markets). Either way, the source of responsibility is here clearly not causal anymore but moral. It is the imperative of justice (and necessity) that commands the differentiation of responsibilities and leads to the elaboration of differentiated duties. Responsibility is thus based on ethics (see introduction and Vetterlein ). The commonality of interests dimension in the CBDR principle and the need for global cooperation in the fight against environmental degradation is further confirmation of the ethical dimension of the notion of responsibility that it embodies. By accepting to take the lead, developed countries take prime responsibility for fixing the problem. In this scenario the responsible actors are still the industrialised states, but they are this time responsible not only towards developing states but also towards themselves, the international community as a whole, and potentially even future generations. ..
Responsibility as Liability
The CBDR principle may well also give rise to responsibility in its more traditional legal dimension of liability. Arguably, the recognition of historic responsibility in the contribution to certain current global environmental problems could open the door to some liability claims since states are bound by a general due diligence obligation to prevent damage to the environment. This is precisely how the Circumpolar Conference framed its petition to the inter-American Commission on Human Rights when it claimed that the USA’s contribution to global warming had a detrimental impact on the Inuits’ way of life that breached their human rights. State responsibility in international law is fraught with difficult issues of
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Common but Differentiated Responsibilities
causation and attribution, and one problem that the Circumpolar Conference would face in entertaining their claim would be to show that the damage caused to the Arctic by global warming was due specifically to US emissions of greenhouse gases. Atapattu however suggests that in this type of scenario, international courts could apply a market-share liability rule and allocate a percentage of liability according to the percentage, not of market share, but of global emissions for which individual states are responsible (Atapattu : ). It is however specifically to avert the possibility of such claims that the USA added an interpretative statement to principle on CBDR of the Rio Declaration rejecting any interpretation of the principle that would imply a recognition or acceptance of any international obligations or liabilities. And this is also why although developed states recognise their historic contribution to global environmental problems, they do so on a moral rather than a legal basis, pointing out the lack of scientific knowledge as to the negative effects of industrialisation at the time and the lack of prohibition of their behaviour (Bartenstein : ). Differentiation through contextual norms (as outlined in Section .) is probably a better contender for giving rise to responsibility in its liability dimension. Contextual norms that insert an element of flexibility subjecting the implementation of the obligation to the differing capacities of the states bound by it may still be breached. Even though less may be required from developing states than of developed states in the fulfilment of their obligation (because their special situation is taken into account), they may still fall foul of a certain level of effort that could reasonably be expected in line with their capabilities. Contextual norms derived from CBDR may thus lend themselves to the engagement of both developed and developing states’ liability, yet, since the level of effort required from developing states will be lower, the liability of developed states should, in principle, be easier to establish as they are expected to comply with higher standards of care. Beyond the case of contextual norms, the principle of CBDR itself works as a standard against which states’ compliance with their obligations may be assessed. In particular it can be argued that states are under an obligation to promote sustainable development, and in order to do so must abide by a range of principles, CBDR being one of them. As such, disregard for the principle of CBDR may point to the lack of sufficient effort by a state to strive for sustainable development and may lead to the engagement of that state’s responsibility. Ultimately, CBDR and intragenerational equity on which it is premised, also require differentiated standards for assessing states’ compliance with their sustainable
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development obligations, particularly according to states’ respective capacities. In such circumstances the responsibility dimension of the CBDR principle could, in theory, give rise to liability in its purely legal dimension. In either of these last two scenarios, the responsible actor will be one specific state whose behaviour has fallen foul of the legal standard of care expected. That state could be held responsible towards another individual state, but it could also be held responsible towards the conventional community to which the obligation breached belongs. Should the responsible actor have breached a rule of general international law, its responsibility would be towards the international community as a whole. In short, where responsibility is founded on historic contributions to the exclusion of the liability dimension, the scenario is mainly one of causal – or negative (see introduction) – responsibility, the industrialised states are the responsible actors and the developing world the recipients. Where responsibility is founded on capabilities, the source of responsibility is to be found in ethics and justice, the responsible actors are again the industrialised states, but because they accept to take the lead in ‘fixing the problem’, they are not just responsible towards developing states, but also towards themselves, the international community, and future generations. This is a form of positive responsibility (ibid.). In contrast, in scenarios where liability is at stake, the responsibility is that of one individual state towards another, or potentially a conventional community or the international community depending on the nature of the legal obligation (i.e. CBDR obligation) breached. In addition, when the focus is on the common responsibility to cooperate and avert environmental threats, the bearers of responsibility are all states towards themselves and their populations, the international community as a whole, and also crucially towards future generations.
. Conclusion CBDR is undeniably a deeply contested principle, the divergence on its conceptual grounding is such that it may even be said that it is founded on a misunderstanding between the developed and the developing world (Arbour : ). Crucially, the ‘misunderstanding’ does not just relate to its conceptual foundations but is ongoing and impinges on the role and impact that CBDR should have on the law. Yet, CBDR has the potential and does already significantly influence the structure of international legal obligations. There have been attempts to use this principle in legal disputes to either claim preferential treatment, impart responsibility on another
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Common but Differentiated Responsibilities
actor, or escape liability. As it has done for the principle of sustainable development, in the future the judge may well use the principle of CBDR as an interpretative tool to determine the content of other obligations (Barral : ), therefore granting it a new legal dimension as an interstitial norm (Lowe : ). But it is through the practices of CBDR that its impact on the design of international regulatory regimes is most saliently felt and evidence shows that practices vary across policy fields. Ultimately, the contested conceptual grounding of CBDR and its varying practices combined impinge upon how the notion of responsibility can be framed in this context. In fact, depending on the conceptual grounding adhered to or the practice involved, the notion of responsibility underscores this inherent nexus between law and ethics (see introduction). Based on historic responsibility, it will be negative and may appeal to the notions of accountability or that of liability. Based on differing capabilities, it will be positive. There is an element of self-judgement in this context in so far as the developed North takes it upon itself to take the lead in fixing the problem. The partnership dimension of CBDR, from which a common responsibility to cooperate in tackling environmental threats derives, can also be framed in terms of ethics and care. Since the practices of CBDR lead to the design of differential legal obligations, liability can also be claimed in case of breach of these rules. In addition, the actors involved will also vary according to the responsibility scenario involved, ranging from individual states through to mankind (including future generations), via the industrialised states, the developing world, conventional communities, or the international community as a whole. The notion of responsibility in the principle of CBDR is thus ultimately multidimensional.
Notes Obligation is used here in its traditional legal sense of requiring a specific behaviour or abstention from a specific behaviour from the debtor of the obligation, failing which specific legal consequences will ensue (such as a duty to compensate any damage caused by the failure to act for example). The terminology is thus used to reflect the narrower sense of a legally binding obligation rather than the broader sense of obligation. For its part the notion of state responsibility in international law corresponds to the notion of accountability/liability spelled out in the introduction to this book. While the so-called Rio Declaration speaks of ‘common but differentiated responsibilities’, the UN Framework Convention on Climate Change extends the term to ‘common but differentiated responsibilities and respective capabilities’. We will use CBDR as an acronym for both.
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Albeit not all states are affected in the same way or to the same extent and not all states have the same capacity to mitigate the effects of those threats. Principles on General Rights and Obligations – China and Pakistan – Draft Decision, Prep Com IV, UN Doc. A/CONF./PC/WG.III/L./ Rev., . United Nations Framework Convention on Climate Change, New York, May , UN, Treaty Series, Vol. : , preamble para. . Report of the United Nations Conference on Environment and Development, Doc A/CONF./ (vol. IV) (), Ch IV, Report of the Main Committee and Action taken by the Conference, para . This is relevant insofar as in such circumstances, the outcome of a legal decision may be influenced by extraneous (as is non-legal) considerations of justice and equity. A legal principle will be aimed at regulating behaviour, and is thus endowed with normative content, it may or may not however have been formalised into a binding norm of international law, the test being that it has formally transited through one of the recognised sources of international law. A legal principle may thus still be lex ferenda, i.e. law in the process of formation, rather than lex lata, i.e. a legal norm binding within a specific legal order. The two necessary constitutive elements to ascertain the existence of an international custom. The opinio juris refers in particular to the conviction by states that they are bound by a legal obligation and that they must thus act accordingly. See supra note . On the one hand, developed countries argued that current economic realities needed to be taken into account and that more developing countries needed to undertake emissions reductions commitments, including in particular emerging economies, whereas on the other hand, emerging economies such as India insisted on maintaining a strict differentiation of commitments between developed and developing countries parties with no emission reduction commitments for the latter. See Paris Agreement, December , UN Doc. FCCC/CP//L., article ()(a). See ibid., Articles () and (). See note .
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Responsibility and Climate Change
Reframing Norms, Practices, and Community Helga Haflidadottir and Anthony F Lang, Jr
. Introduction Who or what is responsible for climate change? The easy answer is that everyone is, but this does not help us understand the problem or how to respond to it for two reasons: one, because the scope of climate change is global and two, because, in some way, all humans seem responsible for it. But a simple causal account of responsibility is problematic. Not every person consumes the same amount of fossil fuels or food. Moreover, individual persons are located in communities that organise their political and economic activities in ways outside of any single person’s control (Peeters et al. : –). The international legal response to climate change includes an important normative principle, known as common but differentiated responsibility (CBDR). As described by Barral in this volume, this principle provides both a legal and moral discourse for addressing climate change. Because it is part of an international legal treaty, however, it constructs climate change as a matter for states. Of course, states must play a key role in addressing climate change. Nevertheless, the perceived incapacity of individuals to act combined with the statism surrounding CBDR leaves little room for alternative modes of political action. By developing the concept of political responsibility as an alternative, we propose moving away from assuming states are the only agents able to respond to climate change. A focus on political responsibility gives greater agency to other agents, such as substate communities or individuals. Political responsibility is the obligation that arises from one’s membership in a community rather than from causal – or negative (see introduction, section .) – responsibility for the commission of the harm. At the global level, it can mean constructing public spaces where different actors within the international community engage in political participation in order to facilitate change.
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Our account parallels the editors’ introduction and their suggestion of a practice-based approach in which norms and community highlight how responsibility is a relational category and inherently normative rather than simply a causal or even legal concept. That is, to understand responsibility, we need to locate the norms that generate responsibility; the practices that constitute responsibility; and the communities that arise from and are implicated in practices of responsibility. These three tools are helpful in locating our understanding of responsibility in relation to climate change. First, the norm of CBDR is different from other norms that underlie responsibility claims in realms such as international humanitarian law or global distributive justice because it does not seek to mirror individual level moral responsibility at a global level; instead, it seeks to take into account the capacities and histories of different states in the international order (see Barral in this volume for a related point). As such, this particular norm is one that arose from disagreements about other ways of dealing with climate change that first appeared when the issue arose from scientific investigations, such as the Polluter Pays Principle (PPP) or the Beneficiary Pays Principle (BPB) (Eckersley : –). Second, the practices that generated the norm also matter. The norm is not a common sense one, as it resulted from a compromise among negotiators to the various efforts to come to an agreement. More importantly, the practices that shaped the norm are not simply the result of specific negotiations, but reflect patterns of interactions around economic and scientific actors in which developing nations have sought to advance their rights to continue to use fossil fuels while developed nations have sought to lessen their carbon footprint in order to reduce the harmful effects of climate change. Overlapping these practices are other norms, such as justice, development, property, environmentalism, and state sovereignty (Okereke ). Finally, the community that results from these norms and practices crosses a number of boundaries that normally define International Relations. On the one hand, the treaty and the regime that governs it is a statebased structure. As a result, it relies upon a broadly conceived international society, one with a strongly defined set of international legal responsibilities. On the other hand, the impact of climate change undercuts borders and makes states less relevant as a means by which to structure political responses. This means that the responsibility to take action against climate change now and for future generations requires rethinking existing community boundaries, constituencies, and structures.
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We propose understanding responsibility in world affairs as a political concept, something that does not just provide evaluative principles for how we organise our lives, but reconstitutes norms, practices, and actions and suggests how we act in new ways to advance the mitigation of climate change. Action requires reconsidering the existing norms, practices, and communities, and it may lead to the creation of new ones though still drawing on the existing structures and institutions. The concept of political responsibility points to alternative practices that facilitate political actions by different agents within the international community. The chapter proceeds as follows: the first section briefly explores the origins of CBDR as it has developed in international law and its impact on the practice of common responsibility. The second section looks to the political theory of Hannah Arendt as a way to develop the idea of political responsibility that orients this chapter. The third section looks at two different realms where forms of political responsibility are evident around climate change: first, the activism of the Secretariat and NGOs within the United Nations Framework Convention on Climate Change (UNFCCC), which we interpret as contributing to new forms of community; second, forms of litigation around human rights that demonstrate how political responsibility can function through legal frameworks at both the national and international levels. We conclude by summarising our main argument in the framework of this edited volume. In line with the perception of responsibility elaborated on in the introduction, we shed more light on the political dimension of responsibility and how this could play out in the case of climate change. This follows Arendt’s idea that by being a member of a community one ultimately assumes responsibility for the actions of this community. We contend that this responsibility in the case of climate change resides not just on the state level, but instead lies also with nonstate actors at various levels.
. The Norm of Common but Differentiated Responsibility The norm of CBDR has served as a cornerstone for situating responsibility within international climate governance. Indeed, the norm, which emerged as a political compromise between states (see Chapter in this volume), is acclaimed for offering international governance a frame that corresponds to the normative and practical elements required for positioning common international responsibility in light of climate change challenges. The norm, however, has been practiced and negotiated between
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states, ascribing little or no agency to other actors within the international community. This is not to say that all states have accepted the obligations imposed upon them through the norm of CBDR. Certainly, since the Kyoto Protocol different states have contested the meaning of the norm, which in turn has influenced both climate negotiations and the enactment of common responsibility. Although the norm of CBDR is limited, it has nevertheless created a framework for taking action. CBDR has not gone down well with powerful states whose responsibilities under the terms of the treaty are much greater than other states. The United States, which has not ratified the Kyoto Protocols because of its objections to the idea of CBDR, has argued, in the words of Secretary of State John Kerry (), ‘Plain and simple, all nations have a responsibility to make near-term emissions reductions.’ Admittedly, the USA under the administration of President Barack Obama responded to climate change in more active ways than the previous US administration (to say nothing of the fact that the Trump administration has reduced those responsibilities even further). When it does consider its obligations, however, the USA does not see its responsibility to respond to climate change through the lens of a differentiated one, but through a simple one of all states making roughly equivalent contributions. Whilst the issue of differentiating responsibility amongst states has been somewhat controversial, most states accept that they have a common responsibility to respond to climate change. As such, the principle of CBDR has facilitated the recognition that collective action is needed in response to a changing climate. Certainly, the principle has been well established within international climate governance and international agreements intended to spur action on climate change have been negotiated within its parameters (see Barral, Chapter in this volume). The Kyoto Protocol introduced a two-tier system for differentiating responsibility among its parties. First, it assigned emission targets for developed countries and countries that were transitioning to a market economy at the time, and second it assigned no emission targets for developing states (Kyoto Protocol). In recent years, however, and particularly because of the rise of emerging economies, the interpretation of CBDR has received increased attention in climate negotiations. With China and India becoming two of the world’s major greenhouse gas emitters, objections have been raised against the traditional division between developed and developing countries when it comes to differentiating responsibility among states (Bushey and Jinnah : ). Here, key players in climate negotiations have called for an increased emphasis on
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national circumstances, equality, and specific needs of developing countries to be taken into consideration when constructing common international responsibility (Pauw et al. : ; Barral, in this volume). For instance, at the UN Climate Change Conference held in Bali (from which the Bali Action Plan emerged) this new reality loomed large at the negotiating table. For the first time negotiators were confronted with the challenge of negotiating concrete actions for both developed and developing countries to reduce greenhouse gas emissions. The Bali negotiations were intended to serve as a frame for the post- negotiations which took place in Copenhagen in and have generally been applauded for being a real achievement in international politics (Ott et al. : ; Honkonen : ). The Copenhagen negotiations, however, only resulted in a political agreement, the Copenhagen Accord, which was negotiated by a group of twenty-five countries (Bodanski : ). The negotiations proved to be extremely difficult primarily because of the focus on developing countries’ emissions reductions with the traditional dichotomy between developed and developing countries being the main source of conflict (United Nation Framework Convention on Climate Change : ). Yet despite these differences the Copenhagen Accord did have a significant impact on the construction and interpretation of CBDR. The major developing countries agreed to the same conditions as developed countries (Brunneé :). Hence, the Copenhagen Accord adopted a new three-level system, assigning differentiated responsibility to developed countries, major developing countries, and the least developed countries. Seeing that the norm of CBDR has largely been negotiated and implemented between states, it may be argued that the climate change negotiations lack a broader role for civil society. While international actors, such as NGOs, are generally recognised as playing an increasingly important role in international politics, they have been assigned little agency in international climate negotiations. Formally, NGOs have been given an observer status at the United Nation’s Climate Conferences, but their access to the negotiation settings is restricted to corridors, some contact groups, and plenary sessions. As such, their opportunity to influence the formal negotiation process is, and has been, quite limited (Corell and Betsill : –). Nevertheless, some NGOs do directly influence climate policy at the state level and therefore indirectly impact the international climate negotiations (Rietig : –). Without diminishing the role that states have in shaping the responsibility to react to climate change, the focus on states restricts the space for other actors within the
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international community to participate meaningfully in shaping the nature of the norm of CBDR. Thus, state interests and political power become dominant factors in formulating the responsibility to act on climate policy. More importantly for us, this demonstrates how uncovering the agency of other actors within the international community might broaden the meaning of responsibility in a way by opening up alternative pathways for empowering different agents. Despite the changes in the meaning of CBDR, it remains a central norm in the legal regime seeking to respond to climate change. As we suggest here, that norm has sought to move away from a ‘common sense’ moral understanding of responsibility and towards something that can incorporate different political and historical trajectories. Yet, it remains tied to a specific notion of moral responsibility, one that relies on assumptions about causality and agency; that is, responsibility in CBDR remains wedded to the idea that only certain agents, i.e states, are legitimate participants in how to respond to climate change. Here, the norm of CBDR has constructed a community of states, whose different interests and ideas of what is just has hindered states from taking effective and much needed action against climate change. As argued by the editors of this volume, different actors within the international community can through certain practices influence the meaning of norms and impact perceptions of policy problems (see introduction). In the following section, we follow the editors’ suggestion to study responsibility as a series of political practices that generate new forms of political community by including a diversity of agents. This approach will complement rather than replace the norm of CBDR in facilitating action. In order to do that, we propose rethinking the very nature of responsibility as a relational concept negotiated through political practices rather than being a primarily moral idea.
. Political Responsibility Moral responsibility requires that an individual has the agency required to intend, plan, and execute actions (see Erskine, in this volume). When we hold individuals responsible, we assume they understand broadly conceived moral rules. Moreover, this assumption allows us to have ‘normal’ interactions with each other; that is, without the assumption that individuals are responsible for their actions, we would have difficulty in seeing them like ourselves (Strawson []). Yet, the assignment of responsibility to others often involves more than simply causal claims or assumptions about a shared human condition; it also arises from relations
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of power that exist within different communities. Thus, as discussed in the introduction to this volume, individuals are held accountable in some situations not because they are actually causally responsible for an action but because the community or powerful members in that community assign them roles that determine their levels of responsibility often without their input or control (Smiley ). If we accept these two premises – first, that responsibility is a necessary norm for allowing us to interact with each other and, second, that responsibility attribution results from both causal realities and different levels of power – responsibility becomes more than a moral principle. It is a political principle, especially if politics is understood to involve social interaction and the role of power in determining those interactions (parallel to the idea of responsibility as being relational in the introduction). In what follows, we develop this notion of responsibility further by drawing on one political theorist who can give us insights into the idea of political responsibility, Hannah Arendt. Arendt () bases her account on the idea of political agency, which is the status of individuals in a community as being able to participate in the life of that community. That status sometimes results from an official body conferring it, such as in determinations of citizenship. At the same time, political agency does not stop with that official conferment. Rather, it must be continually reinscribed by the engagement in the political, by working with and sometimes against others in the political community. Agency then results not just from the actions of others giving one an official status but from one’s own political activity. Arendt () differentiates the human condition into different categories, such as those devoted to daily life and those devoted to longer term institutions and ideas. That which she calls action is the most important realm in terms of politics, for action is that area of life in which human persons reveal themselves in moments of interactions with others. It is the way in which we assert who we are, in which we create ourselves by presenting ourselves in public. She notes that action occurs within a ‘web of human relationships’, a place composed both of other people acting and speaking and of the ‘common world’ that surrounds and anchors human interaction, ‘most words and deeds are about some worldly objective reality in addition to being a disclosure of the acting and speaking self’ (Arendt : ). Politics thus requires a public realm, one composed of fellow humans with an agreed upon equality. From this concept of agency, the idea of political responsibility is derived. Her account of political responsibility begins by distinguishing
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between guilt and responsibility: ‘Guilt, unlike responsibility, always singles out; it is strictly personal’ (Arendt : ). But while guilt is individual, responsibility can be collective. She notes that for collective responsibility to make sense, two conditions must apply: I must be held responsible for something I have not done, and the reason for my responsibility must be my membership in a group (a collective), which no voluntary act of mine can dissolve, that is, a membership which is utterly unlike a business partnership which I can dissolve at will. (ibid.: )
Collective responsibility applies most clearly, according to this conception, in cases where individuals are held responsible for what their governments do. The context of her argument is an attempt to locate the responsibility of individuals who do not support the actions of their government but who are being held responsible for that government’s actions. Arendt takes this point even further, however. Rather than simply stating that collective responsibility is possible in these situations, she argues that simply by living in the current world, one in which we are automatically bound up in a community, we can never avoid responsibility for the actions of our communities. To clarify this, she notes that only refugees are innocent of this collective responsibility, precisely because they are outside the boundaries of any political community. Other forms of community exist and they might generate forms of responsibility. Arendt’s account is one that is specific to the state form, though she was also critical of the nation state as the only container for political life (Arendt []). Indeed, one might say that her concern that the nation-state form, with its emphasis on unity and nationalism, does not allow for alternative forms of political life. Arendt’s concern about refugees here is that their life is reduced to one of bare existence rather than one that generates modes of political action. So, while a group of refugees might constitute a community of sorts, they cannot engage in political life because of the nation-state system. Arendt claims that political non-participation, as a sign of political protest, does not alleviate this responsibility. Simply by the fact that we live in a community, we are responsible for its collective actions. For Arendt, responsibility is an essentially political concept: This vicarious responsibility for things we have not done, this taking upon ourselves the consequences for things we are entirely innocent of, is the price we pay for the fact that we live our lives not by ourselves but among our fellow men, and that the faculty of action which, after all, is the political faculty par excellence, can be actualized only in one of the many and manifold forms of human community. (ibid.: –)
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Political agency and responsibility connect the individual to a wider realm, one in which the human person is celebrated in all her individuality. While it may seem strange to create a collective notion of responsibility when Arendt is so concerned with individuality, her concept of responsibility is about agency not about an internal will producing morally or legally correct outcomes. Instead, it is a responsibility that arises from the idea that each action produces the political sphere anew. Because of the emphasis she places on the ways in which agency constructs the public sphere, Arendt’s conception of responsibility arises from that participation. In some ways, this is about simply being in a community, but for Arendt with her emphasis on action, there is a strong sense that being in a community necessitates participating in the public sphere, acting in some direct way. If the public sphere is that place where no person is made superfluous, but every person has the opportunity to enact themselves and contribute to the creation of that sphere through their deeds, acts that destroy that space will redound on all of us who have acted and continue to act in that space. Constructing and sustaining the public sphere is a joint exercise, and when that sphere is closed down or parts of it are destroyed permanently, we all become responsible.
. Climate Change and Political Responsibility There are many political responses to climate change at the global level. In this section, we wish to highlight those that connect in some way to the idea of responsibility that we have proposed. Following along Arendt’s emphasis on how political responsibility enables political action, and how political action reconstitutes political communities, this section focuses on two areas where climate change activism reflects our idea of political responsibility: the activities of different non-state agents both within the formal UN system and outside of it; and the use of litigation to advance human rights claims around climate change. In each one of these areas, we review material that opens up new ways of seeing climate change and responsibility, relating them to our idea of political responsibility. ..
Non-state Agency and Political Responsibility within the UNFCCC
As noted, the majority of activism seeking to address climate change has focused on the state system. These efforts, culminating in the UNFCCC, seek to convince state leaders to undertake policy changes in order to conform to targets that will lower emission and hence limit human–induced
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climate change. While these efforts are important and admirable, we wish to highlight efforts that have been undertaken by non-state agents in order to demonstrate the multiplicity of ways to bring about change. As explained in the previous section, these efforts arise from what we call political responsibility; the idea that if an individual (person or group) benefits from being within a community, that individual has a responsibility or obligation to act in order to improve it. As this section demonstrates, however, the practices undertaken by these agents not only reflect their view of their obligations, they even reconstruct the communities of which they are a part as they engage in those actions. In other words, there is a process by which the practices redefine communities which then generate the creation of new normative agendas. This feedback loop relies on political action, and so our argument demonstrates how the themes of this volume connect with the theme of political responsibility. This section will look at three different instances of this activism: the role of the UNFCCC Secretariat; the role of NGOs within the yearly meetings organised to advance the UNFCCC; and the actions of substate political units that are responding to climate change when their national governments fail (particularly in the US context). These efforts have not created a new formal political community, but they do demonstrate how non-state and substate agents can act in order to mitigate climate change. Importantly, in doing so, they are not simply focused on the substantive issue of climate change, but in engaging in procedural reforms, especially with the UNFCCC, they are also redefining what it means to be in a community. The UNFCCC formally refers to the convention adopted at the Rio Summit in , which came into force in March . The convention was strengthened with the adoption of the Kyoto Protocols in , which were ratified in . In , the Paris Agreement added a national monitoring dimension to the legal instruments, which was ratified in . Alongside of these legal instruments, there exists a secretariat and series of annual meetings. As with most international legal instruments and structures, the primary agents in this process are states; signatories to the convention and its protocols and agreements are referred to as Parties. There is, however, a role for non-state agents in this process, which are referred to in the documents around the UNFCCC as Non-Party Stakeholders (NPS), composed mainly of NGOs whose activism either focuses solely on climate change or addresses issues related to climate change as a result of focusing on related themes.
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The UNFCCC Secretariat, like all international civil servants, is limited on what it can achieve. The formal governing body of the convention remains the state parties which have signed on to the treaty. But, as is the case with many such bureaucracies, their ability to advance the substantive agenda should not be neglected (Barnett and Finnemore ). The offices of the Secretariat have been located in Bonn since . It now includes around individuals and is led by the current Executive Secretary, Patricia Espinosa of Mexico. The work of the Secretariat is to organise and lead the various parts of the convention, which range from the yearly Conference of Parties (COP) to the technical and scientific structures designed to monitor both climate change and the efforts by state parties to live up to their legal obligations. One area in which the Secretariat has been active is in global education around climate change. Its website is filled with information about how the institution works and how it connects to other institutions. But, one part of the website includes a section called Momentum for Change, which, as noted, highlights how activities are being undertaken by different actors, specifically non-state actors, which are making a contribution to mitigating climate change. This specifically focused effort to get beyond the slow pace of the formal negotiations of state parties reveals alternative practices being undertaken around the world. In doing so, the Secretariat is, in some small way, creating a community of practice with which others can identify and promote environmentally friendly policies. The Secretariat also hosts the website NAZCA, created when Peru chaired the presidency of the COP in . The site provides information and evidence on how a variety of different organisations – companies, universities, substate political units, NGOs, and others – are committing themselves to climate change mitigation. Rather than scold countries for failing to uphold their commitments, this educational effort by the Secretariat provides evidence of ‘best practices’ that will hopefully inspire others to act, and, thereby create alternative forms of community even if they are only represented virtually on the webpage. The Secretariat also works to coordinate activities during the yearly COP. Because of the diverse groups and interests engaged in the COP, the Secretariat seeks not to control the messages coming out of the meetings, but to coordinate and promote reinforcing messages. In a study focused on the use of social media, particularly Twitter usage, the Secretariat is able to shape the messaging over the course of a five-year period (Kolleck et al. ).
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While the Secretariat as an institutional body can play a role in promoting change, the actions of the NSPs are crucial in this process as well. Over time, the role of NGOs has lessened to some extent in their ability to have a strong impact on climate change, especially once the process came to be part of the UN system where state parties dominate. In the early years, researchers and activist groups were crucial in bringing awareness of climate change to the attention of the world (Busby and Hadden ). But, at the same time, their activism has not ceased, and they have also found ways in which to play a more formal and focused role within the UNFCCC. At the yearly COP, NGOs or NSPs as they are called, are able to submit statements and participate in the activities of the meeting. They are organised into nine constituencies which group them in terms of themes: business and industry; environmental; women and gender; youth; trade unions; local government and municipalities; researchers and independents; indigenous peoples; and farmers. Each NGO can locate itself within a constituency, and can contribute to more than one. The constituencies have focal points, or individuals facilitate not only information flows between the groups and the chair of the COP, along with the Secretariat. There are over , groups connected to the COP through this constituency structure. Rather than look to the specific activism of them all, in this chapter we wish to highlight their procedures and how these relate to political responsibility. In one interesting study, scholars looked to the representative nature of these constituencies and how they functioned within the COP. In seeking to understand their accountability and impact, the study looked to various factors of how the groups operate: the existence of a formal charter or constitution; the role of voting within the constituency; the existence of daily meetings during the COP; the existence of working groups within the constituency; and the existence of meetings outside of the yearly COP. The study concludes that those constituencies that are linked to external organisations (e.g. the business group is hosted through the International Chamber of Congress) have less of an internal representative function within the constituency. So, the business and industry group tends to be less inclusive and representative while the women and gender group tends to be more representative and inclusive (at least if measured against the variables in this study). That is, if a group is linked to an outside organisation, the structure and governance of that constituency tends to be ‘outsourced’ to the larger group. This does not necessarily allow all the NGOs within that group to have their voices heard in the submission of statements and in activism around the meeting.
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It might be that the organisation which governs the constituency will have a similar set of views as those within the constituency on substantive matters, but their internal functions be creating a political structure which reflects democratic norms (Kuyper and Bakstrand ). One might argue that democratic inclusivity needs to be sacrificed for effectiveness; i.e. in order to truly make an impact on climate change negotiations, the constituency needs to have strong leadership rather than an inclusive political structure. Yet, if we draw on the idea of political responsibility and the interconnections of practices and community, a focus on how these organisations govern themselves and, in effect, create new communities of action, is crucial. It would seem that those constituencies dedicated not just to the substantive goal of advancing climate change mitigation but also inclusive and democrat decision-making, more truly embody the idea of political responsibility. In addition to the structure of these groups, one other recent development is worth highlighting here. Each year, a state Party serves as president of the COP. At the November meeting, Fiji served in this role (though the meeting was held in Bonn). At the meeting, the Fijian government introduced a new format which they called an Open Dialogue. In developing this structure, they used the term ‘Talanoa’, a Pacific Island tradition ‘where communities come together to share stories and experiences in pursuit of common understanding and the common good’. This dialogue included both Parties and NSPs, hence creating a format in which the NSPs could speak directly to the State Parties without the intervention of the constituency structure. This dialogue did not replace the constituency structure but rather enhanced and complemented it. An important part of this process is a non-confrontational approach which focuses more on finding common ground and providing concrete stories to advance the climate change agenda rather than formal political positions. Moreover, it appears that the Talanoa process will be continued at upcoming meetings. It would seem, then, that by introducing this process, the UNFCCC has further changed the procedural structures by which it seeks to advance the climate change agenda. Once again, this effort may or may not help in the actual change of policies of those organs and parties that are contributing to green house gas emissions. But, it importantly demonstrates how these institutions’ structures are evolving and changing in order to adapt to the practices being undertaken by non-state actors, a process that is reshaping the communities seeking to mitigate climate change. Both the Secretariat of the UNFCCC and the NSPs reveal how practices of political responsibility can lead to new forms of community.
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What we wish to suggest here is not that a new global government has emerged around climate change; indeed, the UNFCCC is only part of the larger ‘regime complex’ that defines efforts to combat global climate change (Keohane and Victor ). Moreover, there is some evidence to suggest that social activism around climate change has not developed in ways that other national and global public policy agendas have (McAdam ). Nevertheless, we see some potential in the work of these international institutions and global NGOs in developing alternative forms of community that can help to combat climate change. .. Substate Agency and Political Responsibility Matthew Hoffman () provides evidence for how activism around climate change has emerged at a range of levels, often in response to the failure of international legal efforts to create multilateral treaties. His argument is less a normative one and more of a descriptive or explanatory one, in which he explores various ‘experiments’ at dealing with climate change that have arisen since the passage of the Kyoto Treaty (Hoffman ). Hoffman’s account points to the ways in which schemes such as regional cap and trade agreements in North America, ones which cross the US-Canadian border, or municipal efforts to limit carbon emissions have emerged in the face of national failures to act. The US Congress, for instance, has failed to act on its commitments to the Kyoto Accords which has resulted in US governors and mayors acting in their place. These efforts are prompted by the idea of responsibility and an acknowledgement that the international legal responsibilities of states have not been translated into action. As such, actors at a number of different levels have moved responsibility from a state-to-state treaty making process to forms of political action. This account suggests some ways in which existing government structures are acting in the face of failed efforts of states. Hoffman’s suggestions are useful in allowing us to see how political responsibility can emerge from diverse levels of government. Here we find actual descriptions of political action that can generate new insights and policies on climate change. As Hoffman notes, these are experiments, so there is no guarantee of their success. But, as Arendt and others have argued, at times we need to engage in efforts to create new structures without full knowledge of what the outcome will be (Hayden : –). Recent efforts in the United States, particularly since the explicit refusal of the Trump administration to acknowledge and act on the reality of
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climate change, demonstrate how substate actors can engage in forms of political responsibility when larger national units fail. Soon after the election of Donald Trump, former New York Mayor Michael Bloomberg and California Governor Jerry Brown formed an organisation called America’s Pledge. The organisation collects information and provides a platform for cities, counties, and states within the United States to undertake actions designed to mitigate climate change. Both Bloomberg and Brown attended the COP meeting in Bonn, where they presented a report on the widespread efforts by American substate units to take seriously and commit to policies that will mitigate climate change. Substate units are, of course, political communities. But, rather than rely on the efforts (or failed efforts) of national governments, efforts by these organisations show instances of political responsibility. This is the case even in the United States where the national government is so resistant to climate change mitigation. These efforts will not work in other national systems which are more centralised, but in the decentralised and federal system of the United States, they suggest that new ways of political community can arise from concrete political practices driven by the normative agenda of reversing climate change. .. Human Rights and Climate Change During the Bali climate negotiations, the UN Deputy High Commissioner for Human Rights addressed the conference and raised the issue of the human impact of climate change. The Deputy High Commissioner (Kang ) drew attention to the adverse effect that climate change already has, and certainly will have on the lives of individuals and communities in the future – suggesting that future climate negotiations should have a greater focus on the human aspect of climate change, linking environmental challenges to human rights obligations. Since the Deputy High Commissioner’s address, increased attention has been directed towards the question of human rights and climate change. For instance, in the Human Rights Council adopted resolution / and requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to carry out a thorough investigation of the relationship between human rights and climate change. The Council reiterated this request in (Human Right Council ). Drawing on climate predictions, the OHCHR report found that climate change impacts the full range of human rights, and directly affects the right to life, the right to adequate food, the right to water, the right to health,
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the right to adequate housing, and the right to self-determination. Moreover, the report concludes by stating that ‘International human rights law complements the UNFCCC by underlining that international cooperation is not only expedient but also a human rights obligation and that its central objective is the realisation of human rights’ (Human Rights Council ). The report’s linkage of climate change and substantive human rights adds a new dimension to the discourse of climate change, one which gives increased weight to the consequences of a changing climate. Yet, framing the discourse of climate change within the human rights framework not only elevates the relationship between climate change and particular human rights, but also the relationship between climate change and the underlying moral and normative aspects of human rights in general. Rather than seeing rights as being violated by climate change, we propose, using the Arendtian idea of political responsibility, that responsibility should be understood as a means by which individuals can demand their rights. That is, a focus on rights is not simply about holding agents accountable, it is also about motivating agents to undertake actions in new and divergent ways. This change in emphasis may add a sense of urgency to the responsibility for action in order to avert human rights consequences of climate change. Thus, the notion of human rights shifts the responsibility discourse on climate change away from the conventional understanding of responsibility as accountability towards a broader conceptual frame, where normative and moral considerations facilitate political action. Here the rudimentary principle for political action is political responsibility as different agents within the international community exercise political responsibility through active political participation. This ties back to Arendt’s notion of responsibility as agency, wherein responsibility arises from the understanding that each action constructs the public sphere anew. Yet in order to be political, action must be public and intended as a response to, or an attempt to alter or influence certain events. Therefore, political responsibility is assumed by individuals or groups because of their concern with particular situations or apparent vulnerabilities. As Iris Marion Young argues, drawing on Arendt’s conception of political responsibility, ‘[o]ne has the responsibility always now, in relation to current events and in relation to their future consequences’. Thus, she sees political responsibility as forward–looking; where moral agents undertake collective actions as a means to acquire better ends. By its very nature the decision to take up responsibility, therefore, originates from the political (Young :).
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Yet, assuming political responsibility as an attempt to avert the human rights’ consequences of climate change presupposes that political action influences the acknowledgement and emergence of human rights. This signifies how human rights can emerge through political claims that derive from normative and moral ideals. Recognition theory demonstrates how the exercise of rights is fundamentally dependent upon the existence of social recognition. As such, the emergence of human rights is subject to a reciprocal recognition of political claims. Hence, subjects of justice become right bearers as political struggle renders their rights socially recognised (Hayden : ). In contrast, failing to recognise certain human rights causes rights claims to become powerless or ineffective. Nevertheless, depriving vulnerable individuals or groups of their rights by non-recognition often spurs political action to be taken in order to ‘make others take notice of our not yet recognised needs, identities and interests’ (ibid.: ). This also highlights how reciprocal recognition of certain human rights is a part of an ongoing political project (ibid.: ). Linking the political to the legal is of course an important avenue for actors within the international community attempting to have their rights recognised. Thus, the vulnerable seek to claim their rights through legal action. Already a rapid change is visible in the recognition of the impact of climate change on human rights, exemplified by the case of a group of Canadian and Alaskan Inuit before the Inter-American Commission on Human Rights and legal proceedings initiated in by a citizen platform in the Netherlands (see Gordon ; Barral in this volume). Although, similar as both cases connect human rights to climate change and were initiated by a group action, The Hague District Court reached a groundbreaking decision and found the Dutch state responsible for taking effective measures to control emission targets in the Netherlands. According to the Court, the Dutch state ‘must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment’ and ordered the state to cut carbon emission by per cent within five years (Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment) Case number: C// / HA ZA -, ). The Court’s decision illustrates well how the recognition of human rights can facilitate political action to advert climate change consequences. Additionally, the human rights element of this case arose from the activism of individuals rather than from states demanding action by other states. The human rights effect of climate change spurs ‘action on climate change rather than
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advocating climate change action in order to prevent human right consequences’ (Humphreys : ). These are only suggestions about how human rights may motivate actions. The essential characteristics of human rights as universal and their priority over different values bring added weight to the debate on climate change. The consequences of a changing climate carry normative and moral considerations that influence norm negotiation and the agency to act. Assuming political responsibility demonstrates how individuals and groups in the international community can generate political change through collective political action to protect the vulnerable and future generations. In turn, political action can facilitate the recognition and emergence of certain human rights. As such, framing the discourse of climate change within the human rights framework highlights how the practice of political responsibility can facilitate the urgency to act.
. Conclusion In conclusion, this chapter has demonstrated how a practice-based approach focusing on norms and community can open up new ways of understanding responsibility. Drawing on Arendt’s concept of political responsibility, we follow the editors’ suggestion to understand responsibility as being negotiated and thus inherently normative. Such a focus on politics highlights the centrality of practice and community and demonstrates how climate change actually forces us to reconsider accepted ideas about rights, citizenship, and community. There are other accounts that parallel ours, such as that provided by Falkner in this volume in his description of how a conservation ethos evolved into an environmental one, partly due to the efforts of activists and NGOs. Simon Caney has recently presented an important account of how responsibility can be disaggregated in ways that open up roles for agents at different levels in the international order, including multinational companies, scientists, churches, and engaged global citizens (Caney ). We see our work here as corresponding to these accounts, though distinct in its use of the Arendtian idea of political responsibility. The primary point we wish to make is that our discourse of responsibility, while beginning with moral and legal frames, can also be seen through a political one. Arendt’s idea that collective responsibility means we must accept that being part of a community generates responsibilities to act is one that permeates this chapter. As such, moral agents within the international community assume political responsibility through active
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political participation in an attempt to promote better ends. Whilst the norm of CBDR has played an immensely important role in differentiating responsibility amongst states, political responsibility constructs a common community where various actors contribute to and influence action in order to generate policy change. Indeed, if we expand Arendt’s frame to see that we are part of the ‘human’ community, then perhaps modes of action will turn to new and different frames. The nature of political responsibility provides a possible way to act in the current global order. The problems of climate change demand nothing less.
Notes Parts of this chapter have been drawn from Anthony F Lang, Jr., ‘Shared Political Responsibility’ in Andre Nollkaemper and Dov Jacobs, eds., Distribution of Responsibilities in International Law (Cambridge: Cambridge University Press, ): –. Thanks to the reading group on Responsibility and World Politics at St Andrews for their insights, including Patrick Hayden, Elizabeth Ashford, Natasha Saunders, and Luigi Corrias. And, thanks to the editors of this volume for their insightful comments on earlier drafts of this chapter. We have argued elsewhere that small states can play a crucial role in advancing climate change mitigation strategies; see Haflidadottir and Lang, Jr. . It is important to note that we are relying on one dimension of Arendt’s thought in this chapter, her work on agency and responsibility. Throughout her voluminous output, she engaged with other themes that arise in this chapter, such as rights, citizenship, and community. While our reflections lead us towards some of her views on this, we see her political theory more as an inspiration for our own thinking on these themes rather than as a definitive guide for how we should theorise rights, citizenship, and community. Indeed, Arendt’s work barely addresses environmental issues, so we do not look to her for insights directly related to the themes of this chapter. See for example, the United Nations Framework Convention on Climate Change, Views regarding the Work Programme of the Ad-Hoc Working Group on Long-term Cooperative Action under the Convention (Bangkok: ): –. Accessed on August at https://digitallibrary.un.org/record/. The Bali Action Plan is a part of the Bali Road Map, which was adopted at the th Conference of the Parties and rd Meeting of the Parties in December in Bali. See: United Nations Framework Convention on Climate, Copenhagen Accord (Copenhagen: ). At: http://unfccc.int/resource/docs//cop/eng/ a.pdf. Accessed on August . Currently over , NGOs and IGOs are admitted as observers at the United Nation’s Climate Conferences. See: http://unfccc.int/parties_and_ observers/items/.php. Accessed on February .
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For an argument about Arendt and her concern with the dangers of individuals becoming superfluous, see Hayden (). See: http://unfccc.int/files/essential_background/background_publications_ htmlpdf/application/pdf/conveng.pdf. Accessed on February . See: http://unfccc.int/secretariat/momentum_for_change/items/.php. Accessed on February . See the website at: http://climateaction.unfccc.int. Accessed on February . See: UNFCCC website where the process is described. http://unfccc.int/ parties_and_observers/observer_organisations/items/.php. Accessed on February . See the organisation’s website at: www.americaspledgeonclimate.com. Accessed on February . The Dutch government appealed the decision to the Hague Court of Appeal, which upheld the decision in a ruling in October . See: www .urgenda.nl/en/themas/climate-case. Accessed February .
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Business
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The Rise of Corporate Social Responsibility as a Global Norm Informing the Practices of Economic Actors Hevina S Dashwood . Introduction The rise of corporate social responsibility (CSR) as a global policy norm marks a significant shift in thinking about the nature and scope of responsibility on the part of economic actors. Instances of corporate practices that extend beyond the immediate, profit-maximising interests of business can be traced throughout history, but these can be depicted as paternalistic and idiosyncratic in nature, localised to individual companies (Smucker ). The rise of the concept responsibility in the private sector can be traced to the s and the advent of globalisation. It is argued here that CSR achieved global normative status in the late s, when a growing number of global companies began to report on their activities affecting the environment, economy, and society. Many global companies were participating in a rapidly increasing array of ‘voluntary’ and/or quasi-voluntary governance arrangements at the national, regional, and global levels. By this time, CSR also appeared in multiple fora, invoked by global business associations, international state-based organisations and global non-governmental organisations (NGOs). These fora represent the ‘discursive arenas’ (introduction to this volume), where the delineation of the responsibility of companies are negotiated and debated. To say that CSR achieved global normative status is not to suggest that it has been universally adopted, or is practiced around the world. There is significant variation between companies, both within the same sector and between sectors, and depending on the ‘home’ as well as the host country of corporate operations. In this chapter, evidence for the emergence of CSR as a global norm will draw on major trends and significant developments across the entire economic field, while acknowledging that there are significant differences across sectors, companies, and countries. A wide range of intersecting developments, including the growing significance of non-state actors at the global level, the environmental movement, and the
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expansion of production into the developing world, influenced the global rise of CSR. Important shifts in thinking, in particular, the influence of the neo-liberal idea on notions of who is responsible for the delivery of ‘public’ goods, served to legitimise, to a degree, a greater role for the private sector. To say that CSR is a norm means not only that other actors, such as governments, employees, and communities, expect companies to act responsibly, but that companies themselves have accepted CSR as a norm informing their business practices. Although this context-setting chapter takes a largely chronological approach to outlining the evolution of CSR in discourse and practice, far from being a linear progression, the rise of CSR is best conceptualised as a circular and dynamic process, involving a community of actors across multiple levels. The meaning and scope of CSR remains contested up to the present day, but a broad consensus has now emerged over the fact that companies have responsibility towards the economy, society, and the environment (Dashwood ). As this chapter will demonstrate, key areas of contestation centre around four issues concerning: first, the appropriate role of the state in regulating global companies (both at the national and global levels); second, who should be assigned responsibility for the delivery of ‘public goods’; third, whether CSR should be understood as ‘voluntary’, obligatory, or mandatory; and fourth, the appropriate scope of corporate responsibility beyond the immediate shareholders. The chapter argues that the evolution of CSR, rather than reflecting the final outcomes of this contestation, is the manifestation of tendencies in how this contestation plays out over time. For definitional purposes, CSR can be understood as the beyond-law obligations which companies must adhere to because their economic activities affect the social and ecological systems in which they are embedded (Dashwood : ). The chapter proceeds as follows: the next section will trace the evolution of the responsibility norm in the economic field over time, identifying the major developments/milestones influencing the rise of global CSR. The chapter will then proceed to define CSR, thereby demonstrating the debates over what the norm (should) entail(s). Building on the earlier sections, the fourth section will account for the rise of CSR as a global phenomenon from the s to the s, while in Section ., the institutionalisation of global CSR norms from the s to the s will be examined. The conclusion will assess the conceptual implications of the role of various state and non-state actors in the evolution of CSR as a global norm, the continued contestation over different understandings of
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CSR, and the mix of regulatory forms in the wide variety of global governance arrangements.
. Global CSR as an Evolving Policy Norm The milestones marking the broader global shifts that provide the context for changes in CSR range from the advent of globalisation and the impact of decolonisation in the s, the emergence of the neo-liberal agenda in the s, to the end of the Cold War and the shift of production to the Global South in the s. These changes set the stage for the evolution of the scope of CSR, from workers’ rights, to the environment to human rights and broader societal concerns such as sustainable development. Although the processes that set in motion the rise of CSR as a global norm can be traced to the s, companies were assigned responsibility in certain areas, such as the fair treatment of workers, long before CSR entered the lexicon. The advent of industrialisation in the late s and the attendant commodification of labour were accompanied by exploitative practices such as low wages and very long working hours in inhumane and unsafe working conditions (Smucker ). Child labour was not uncommon. Efforts on the part of workers to organise (syndicates) started in the United Kingdom where the industrial revolution began, and were often met with violent resistance on the part of the state. This pattern repeated itself in France, Germany, the USA, and Canada as these countries began to industrialise, and there were still instances of child labour a hundred years ago in these countries. The significant exception to these geographically limited developments was the anti-slavery movement, which had a global reach in that it worked to abolish slavery in individual countries (i.e. the USA) as well as halt the supply of slaves from the source in West Africa (Hochschild ). The founding of the International Labour Organization (ILO) in represented an important milestone in the recognition of labour rights. The ILO sought to encourage governments to legislate fair working conditions, but responsibility was assigned to companies to respect workers’ rights. Over the decades workers’ rights were gradually extended in the advanced industrialised economies, although unevenly and not without contestation as workers’ attempts to earn a living wage brushed up against the corporate need to cut costs. By the s, alongside the nascent environmental movement, there was growing recognition and concern over the risks to workers’ health through exposure to harmful
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substances (such as certain chemicals). New legislation appeared in the advanced industrialised economies to promote worker health and safety, consistent with a trend to regulate companies at the national level. The practice of respecting workers’ rights was largely limited to the advanced industrialised countries, and even among them the record is mixed (see Favotto and Kollman in this volume). All the same, the foundation of the ILO is significant as it represents the first global effort to address rights and responsibilities that would later come to constitute part of what CSR is now understood to entail. The s, with the advent of globalisation, marks the decade when the underlying conditions for the rise of CSR began to unfold. Key among these developments was the growth and expansion of global companies (Held et al. ). Economic and technological developments in trade, finance, transport, and communications set in motion transnational modes of social action that are frequently ‘deterritorialised’ (Scholte ), that is, disconnected from territorial boundaries. The expansion of global companies in the s led to efforts by developing country governments to regulate them, as part of the demands for a New International Economic Order (NIEO). Taking advantage of their growing numbers in the UN as a result of decolonisation, the G countries sought to address the unequal distribution of the benefits (and harms) of the globalising economic structure. In , under the auspices of the newly created UN Centre on Transnational Corporations, a Code of Conduct on Transnational Corporations was called for (Bird et al. : ). Two other efforts in the s to regulate global companies were the OECD’s Guidelines for Multinational Enterprises () and the ILO’s Declaration of Principles concerning Multinational Enterprises and Social Policy (). The OECD Guidelines have gained the most traction, as they have been revised with increasing scope several times (most recently in ), and are now institutionalised in member countries through National Contact Points (see Thompson ). The calls for a more just global order were resisted by global companies and governments in advanced industrialised countries, and the NIEO agenda had petered out by the early s. Developing country governments and northern–based trade unions saw the Code as a means to rein in the power of global companies, while governments in industrialised countries wished to see the Code remain voluntary (Haufler : –). By that time, highly state interventionist policies were discredited and many developing countries suffered serious indebtedness. The calls for a NIEO were nevertheless significant, as they represented an early indication of the
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divide between those advocating regulation of global companies and those favouring ‘voluntary’ approaches. Instead, in the s regulatory changes were introduced by conservative leaders in the key advanced industrialised countries of the USA, Germany, and the United Kingdom. These changes facilitated the growth and expansion of global companies through deregulation, involving trade liberalisation, the relaxation of monetary controls and later, financial liberalisation. These same countries leveraged their clout in international financial institutions (IFIs) such as the World Bank and IMF, to exert pressure on indebted developing countries to introduce market-based reforms, including import liberalisation, the privatisation of state-owned companies and the establishment of an attractive regulatory and policy environment for foreign direct investment (FDI). These global developments reflected important domestic debates in the s in advanced industrialised countries about the desirability and appropriateness of CSR. The domestic emergence of CSR in countries such as the USA, Canada, the United Kingdom, France, Germany, and Japan provided the launching pad from which CSR emerged on the global agenda (Kinderman ). In the USA, corporate efforts to rectify poverty and inequities in the inner cities gave way to disillusionment, causing the pendulum to shift in favour of a narrower conception of responsibility (Smucker ). Corporatist arrangements in countries such as France and Germany produced a different dynamic, but even in these countries, extensive economic integration put pressure on the welfare state, forcing a retrenchment or encouraging governments with limited resources to ‘contract out’ to the private sector for the provision of services. Debates over what social services the state could offer provided important domestic antecedents to regulatory changes that affected global economic interactions. The commencement of financial deregulation in the s compromised the ability of the state to shelter its citizens from adverse global economic developments beyond its control (‘embedded liberalism’, explained by Ruggie []). The neo-liberal ‘idea’ thereby helped to set the stage for greater responsibility to be assumed by the private sector for a range of activities. Long-standing debates about whether this trend marks the ‘retreat’ of the state aside (Strange ), these changes can more accurately be described as reflecting the shifting rather than the shrinking role of government (Flohr et al. : ). These shifts also reflect a change in ascribed roles to the private sector, or, a ‘reconstituted global public domain’, where new actors have joined states in the project of global
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governance (Ruggie : –). In the process, a diverse range of actors, including business, NGOs, investors, and professionals, have assumed a degree of ‘authority’ over various policy domains (Cutler, Haufler, and Porter ; Hall and Biersteker ). The emergence of new global regulatory arrangements in the form of transnational private global governance in the s are the global manifestations of these changes, whereby the state shares or delegates responsibility with non-state actors for governance of corporations through multi-stakeholder global initiatives (Flohr et al. : –). Protections enshrined in the WTO created in for trade and investment, yet not the environment, cemented the idea that markets should be given as much free reign as possible. The signing of treaties under the WTO protecting global trade and investment, entrenched a ‘neo-liberal’ form of globalisation in which political conflicts about the regulation of global capital are embedded (Bartley : , ). Running parallel to these developments was the growth of the environmental movement in advanced industrialised economies. Although environmental concerns pre-date globalisation (Falkner in this volume), the emergence of a truly global environmental movement can be traced to the s and the Stockholm Conference marked the arrival of environmental issues on the global agenda. NGOs, concerned about the environment, exerted pressure on governments in advanced industrialised economies to protect the environment through regulation, and by the s, utilised improvements in telecommunications to raise public awareness, thereby advancing the global environmental agenda. The ‘liberal compromise’ (Bernstein ) of sustainable development, and the release of the Brundtland Commission Report in (World Commission on Environment and Development ) was a milestone event that entrenched sustainable development as the normative underpinning of the global effort to protect and preserve the environment, while also promoting economic growth (see also Falkner as well as Favotto and Kollman in this volume). The norm of sustainable development is embedded in numerous global governance arrangements, including in the International Finance Corporation’s (IFC) Performance Standards (International Finance Corporation ), which require (typically extractive) companies investing in the Global South to adhere to a set of economic, social, and environmental conditions, in keeping with the norm of sustainable development. They can be considered a milestone in the continued evolution and expansion of CSR as a global norm. Politically, the end of the Cold War had important implications for the rise of CSR. The easing of security concerns opened up political space for
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other pressing global problems, such as environmental destruction, to come to the forefront of the global agenda, and there initially was optimism for a new global post–Cold War order. A process of political liberalisation unfolded in many parts of the Global South, and the s marked a significant expansion of production and extraction in Africa, Asia, and Latin America. Having ‘won’ the Cold War, the neo-liberal idea was ascendant, garnering greater legitimacy for continued privatisation and deregulation (Avant et al. : ). The shift of production to the Global South was critically important to the rise of CSR as a global norm. The rapid expansion of global companies in developing countries resulted in often sizeable increases in FDI, without the corresponding attention to workers’ rights and environmental protection. In the absence of effective state regulation, growing pressure was exerted on global companies to take responsibility for their actions. Global companies with a large environmental footprint, in the mining, oil, and gas and forestry sectors became the early focus of concern. With the transition to global supply chains, global companies in the textile, apparel, and toy sectors drew negative attention over exploitative labour practices, the use of child labour and unsafe working conditions. Workers’ rights, as noted, have long been an important concern, but the expansion of global companies and the growth of global supply chains brought renewed focus on the exploitation of labour. The calls for CSR grew out of these concerns, traced to the s when attempts at self-regulation were made in the forestry and garment sectors (Bartley : ). The expansion of international business into the Global South served as an important impetus for the further broadening of the scope of CSR to include human rights. Serious human rights abuses associated with the apparel and extractive sectors, in particular, drew attention to the need to assign responsibility to global companies for the rights of all stakeholders affected by their activities. This section has provided a chronological overview of the broad developments that mark the conditions for the rise of global CSR, as well as the expansion in scope of CSR, from early responsibilities towards workers, to care for the environment, expressed as sustainable development, and later, human rights. Deregulation and privatisation provided an important impetus to, and underlying rationale (if not legitimacy) for, CSR, while new forms of regulation emerged on the global governance landscape involving a range of actors. The next section will turn to definitional issues surrounding CSR, which encapsulate the contention over the four issues identified, namely state regulation of companies, the private provision of
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‘public goods’, voluntary vs. obligatory vs. regulated CSR, and the appropriate scope of CSR beyond immediate shareholders.
. What Is CSR? Definitions across Institutional Settings and Actors There are many terms – corporate citizenship, corporate governance, corporate responsibility – that denote CSR, and there is overlap between them (Carroll ). At bottom, the many different understandings of responsibility in the economic realm refer to the nature of the relationship between business and society (Garriga and Mele : ). CSR is the term most commonly used in practice and in the academic literature, and as one recent book notes, is now ‘mainstream’ (Hopkins ). In keeping with the norms as practice conceptualisation adopted in this volume (see introduction), the practice of CSR ‘on the ground’ informs the different meanings attached to it. This section argues that the institutional context in which CSR is practiced is a key determinant of how it is practiced. Institutional context refers to the level of development of a country, government capacity to enforce regulations (if they exist), regulatory regimes, level of civil society engagement, customs, and norms. The large business ethics literature tends to focus on CSR in the North American– EU context, which differs from CSR as it is practiced in the developing country context (see Idemudia ). Instead of comparing different definitions of CSR, it makes more sense to look at how CSR is assigned and/or taken on. The expansion of global companies into the Global South dramatically changed the institutional context in which they were operating, in turn altering managers’ understanding of the nature of their responsibilities. CSR as practice has further shaped the broad (but not universal) consensus that companies have responsibilities towards stakeholders as well as shareholders. As noted in the introduction to this chapter, CSR is best understood as the ‘beyond law’ obligations that companies must adhere to because they are embedded in a broader social and ecological system, and are responsible to society in ways that might restrain their activities (Dashwood ; Thompson ; Bird et al. ). This definition is not meant to preclude the moral or ethical nature of the obligation as applied to global companies but can also be understood as being intrinsic as opposed to causal in nature, denoting a duty of care. Companies have moral agency (see Erskine in this volume), such that obligation can be decoupled from state-based regulation. CSR is often understood to be ‘voluntary’, or
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discretionary, in the absence of regulations requiring companies to act in certain ways. CSR in advanced industrialised economies typically leans towards the discretionary side of the continuum, in that it often takes on the form of philanthropy (compare Thompson in this volume). Companies might choose to make donations to hospitals or to particular good causes (e.g. fighting cancer). The notion that CSR is ‘voluntary’ is misleading, however, as companies will often go beyond the law out of a sense of obligation/care, so as to conform to a standard of behaviour deemed by society to be appropriate. Bird et al. () refer to this as a ‘global business ethic’ that informs CSR, defined as a ‘set of normative assumptions about business practices that are expressed and embodied in a number of contemporary initiatives that either are transnational in their organizational form or deal explicitly with the practices of transnational businesses’ (p. ). In the developing country context, companies may be called upon by local communities, governments, and society at large to take responsibility for services that would typically be understood to be ‘public goods’. In the mining sector, for example, operations typically take place in rural areas that tend to be neglected by central government. Nearby communities thereby expect mining companies to provide public goods, such as schools and hospitals, other public infrastructure and to support broader development goals such as livelihood projects. Such initiatives can be distinguished from ‘voluntary’ CSR initiatives, in that they require a long-term commitment to the communities, as opposed to a one-off donation to a clinic. They require ongoing engagement with communities, rather than a transactional relationship, characterised by short-term CSR initiatives (Muthuri ). In the case of sustainable livelihood projects, it is not solely up to the company’s discretion, instead requiring consultation with communities (Dashwood and Puplampu ). Companies therefore are engaged in self-judgment about a responsibility of ethics and care that form a justification for their actions as much as taking responsibility after the fact. They are engaging in a fundamentally normative exercise of determining what the most appropriate behaviour is, in a context where it is often not clear what the best course of action is (Dashwood ). The ‘voluntary’ as discretionary/philanthropic connotation of CSR is still dominant in North America, except where indigenous communities are involved. However, the binary voluntary-regulatory understanding of CSR underestimates the ethical responsibility of care that global companies engage in, both as selfjudgment and because over time they see that one-off, discretionary initiatives can be unhelpful. In developing country contexts in particular,
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and depending on the sector, CSR may take on the form of obligation, even though companies are not legally required to do so. Critical to the expansion in scope of CSR has been the significant shift in managerial attitudes and a growing acceptance about the nature and extent of their social and environmental responsibilities (see Favotto and Kollman in this volume; Tricker : –). Companies have a legal ‘fiduciary’ responsibility to their shareholders, by providing them with positive returns on their investments. Although some managers still hold the view that it is solely to shareholders that companies are responsible (echoing Friedman ), most companies now accept that they have some measure of responsibility to other stakeholders external to the firm, including, stakeholders down the supply chain, the environment, and neighbouring communities (Donaldson and Preston ). Nevertheless, the assignment of greater responsibility to companies is not considered by all to be a good thing, and there are voices from both the private sector and NGOs that question the expanding range of activities for which global companies are held responsible. Companies fear that they are being called upon to provide for public services, such as sustainable livelihood projects, for which they lack the needed competencies, or are expected to contribute to sustainable development when it is not clear what their role should be in this regard (Dashwood ). For their part, NGOs fear that assigning traditionally ‘public’ responsibilities to private actors absolves government of its responsibilities and risks increasing the power of already powerful global companies. These debates aside, by the mid-s, many companies came to realise that, rather than being at the centre of stakeholder relations, they should see themselves as but one of many actors sharing responsibility for the realisation of larger goals, such as sustainable development (Sagebien ). This evolving understanding of the nature of a company’s relationship with society paved the way for global companies to participate in a wide variety of global governance arrangements, together with states, NGOs, and international organisations. As the previous discussion reveals, the notion of what, and to whom, companies are responsible has evolved over time and is contested, both in practice and conceptually. The evolution of global CSR has thereby been informed by a wide and complex spectrum of views, practices, and initiatives that reflect the broad tendencies previously identified in the assignment of responsibility: first, the role of the state ranges from state regulation – collaborative governance – state delegation; second, public goods are delivered by states – multiple actors – private sector; third,
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CSR is understood as: ‘voluntary’ – obligatory – mandatory; and fourth, the scope of CSR is seen as limited to shareholders – immediate stakeholders – broader environment and society. These broad tendencies have been present throughout the evolution of global CSR, but as the next two sections will demonstrate, there have been shifts in terms of which tendencies are emphasized over time and space.
. The Rise of Global CSR: s–s Starting with the tendency towards state regulation and state-based initiatives in the s, this section builds on the broad contextual developments outlined in Section . by explicating their implications for the rise of global CSR. These include the challenges encountered by states in regulating global companies, leading to the devolution and/or delegation of state authority starting in the s that ultimately gave rise in the s to innovations in global ‘governance’ (Rosenau and Czempiel ), embracing traditional state-based organisations and a variety of governance arrangements involving a wide range of actors/stakeholders. Furthermore, NGOs used their growing influence on the global agenda to exert pressure on global companies to take responsibility in the face of state delegation, and some began to collaborate with global companies in various governance arrangements. By the s these various global governance arrangements had proliferated across economic sectors, giving rise to the phenomenon of transnational global governance. In the course of these developments, the roles and identities of states, NGOs, and global companies changed, where global companies see themselves and are seen by others as not just economic actors, but also political actors, because they engage in negotiation and forge coalitions with political actors as well as economic actors (Bartley : ; Dashwood ; Hofferberth ). The s marked a decade of ‘traditional’ state-based efforts to regulate the environment through global treaties and international (state-based) organisations. The UNESCO World Heritage Convention () is an early example of a treaty that restricts access to areas that could negatively affect natural or cultural values on lands deemed of outstanding natural significance or claimed by indigenous peoples. The creation of the United Nations Environment Program (UNEP) in in the aftermath of the Stockholm conference, represented an important international organisational basis from which to engage with national governments and industry to improve the environmental performance of sectors whose activities had
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major negative environmental impacts, such as mining and forestry (Yakovleva : ). These efforts mirrored the introduction of national-level regulation concerning workers’ rights and the environment. In contrast to the failed call for a Code of Conduct for TNCs in , these treaties are not attempts to directly regulate companies at the global level, but rather, are incorporated into domestic laws. This process continued into the s, when new regulations requiring environmental impact assessments for new projects, set limits on discharges of waste and contaminants to water, required monitoring and incorporated legal penalties in the event of violation of permit conditions. In the mining sector in the s, for example, in response to the Biodiversity Convention (), which restricts access to land with fragile ecosystems (Yakovleva ), governments introduced regulations safeguarding the quality of land, air, and water affected by mining and mineral processing. European states were leaders in environmental regulation, and the EU introduced precedent-setting regulation for its member states. For example, in under the Basel Convention, the EU adopted regulation strictly limiting hazardous waste shipments within, into, and out of EU member countries. By the s, however, friction had emerged between regulatory efforts to protect the environment, and the principles underpinning the global free trade regime. For example, the Basel Convention, by allowing for the ban of importation of products deemed to harm the environment, effectively made environmental controls legitimate grounds for trade discrimination (Pring ). Efforts on the part of states and intergovernmental organisations to regulate environmental protections into the trade of products such as timber, led to objections on the grounds that such efforts constitute illegal barriers to trade. During negotiations over the World Trade Organization (WTO – created ) to enshrine free trade principles to a new and expanded set of rules, efforts to make provision for environmental protection were resisted. Developing countries were opposed to environmental trade protections because they see such efforts as impingements on their national sovereignty. Similarly, efforts to embed labour standards in international trade agreements were unsuccessful in the face of government resistance during the negotiations over the WTO. Echoing concerns over environmental standards, developing country governments have generally been opposed to binding international labour standards over fears of loss of competitive advantage (Bartley : –; Hale and Held : ). In advanced industrialised economies, governments were (and remain) generally reluctant to heavily regulate the
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Rise of Corporate Social Responsibility
activities of global companies headquartered in their countries but operating abroad. Regulatory challenges made transnational global governance arrangements an attractive means to respond to the ensuing ‘governance gaps’ and bypass the constraints of trade rules, which generally do not apply to nonstate actors (Avant et al. ; see Abbott and Snidal for overview of array of such initiatives). For example, constraints imposed by global trade rules served as a major impetus behind the founding of the Forest Stewardship Council (FSC) (Pattberg : ). These developments corresponded with the growing awareness that global problems such as the environment could not be solved by any one state acting on its own. NGOs moved into this regulatory void and, with their growing influence in shaping global agendas, were well-positioned to play a critical role both nationally and internationally in exerting pressure on companies, governments, and international organisations to take responsibility for the environment and workers’ rights in their global operations. NGO activism is considered a key factor driving companies’ CSR policies (Vogel ; Flohr et al. ). Taking advantage of improvements in telecommunications, NGOs effectively employed naming and shaming tactics to target major global companies in different sectors, from chemical, oil and gas, and mining to the garment and toy sectors (Keck and Sikkink ). In the absence of effective state regulation that could/would regulate global companies operating transnationally, NGOs came to assign responsibility to global companies to regulate themselves or participate alongside NGOs in global governance initiatives. In the s and s, NGOs exposed corporate irresponsibility in a number of high-profile disasters, such as the chemical disaster in Bhopal, India, when Union Carbide released lethal chemicals into the surrounding environment, resulting in the deaths of thousands of people, and the Exxon Valdez oil spill in in the environmentally sensitive Prince William Sound in Alaska. These disasters negatively affected the public image and reputations of global companies, in response to which, companies adopted industry self-regulation (Haufler : –). The Canadian chemical industry responded to Bhopal by launching the Responsible Care initiative, a voluntary programme that established guidelines for the safe handling and transport of toxic chemicals. It was subsequently internationalised with the establishment of the International Council of Chemical Associations, and Responsible Care was also adopted by other heavy chemical–using industries, such as the mining sector (Dashwood ). The Exxon Valdez spill prompted collective action
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on the part of a wide range of public interest advocates, including pension funds, environmental groups, and labour unions, resulting in the Valdez Principles in (Haufler : ). The Valdez Principles, later renamed the CERES principles (after the Coalition for Environmentally Responsible Economies), laid out principles for corporate environmental responsibility, an important milestone in assigning responsibility to corporations for environmental care. Other sectors that were early adopters of self-regulatory initiatives included forestry, which founded the FSC (). In the retail sector, NGOs launched anti-‘sweatshop’ campaigns against companies such as Nike (Haufler : ). Embarrassing revelations led to the founding in of Social Accountability International (SAI), set up by NGOs to establish a cross-industry standard for working conditions based on the ILO core labour standards (Flohr et al. : –). In the late s, other actors, such as public and private banking institutions, came under intense NGO pressure to incorporate environmental considerations in lending decisions. NGOs successfully pressured the World Bank to add environmental conditionalities to lending for major resource-based projects in the Global South. Concerns about liability led private banks in to adopt the Equator Principles, to address environmental and social risks in project financing, and thereby setting environmental expectations for financing of major projects. Concerned about liability risks, public insurance institutions, along with private insurers, also began to institute ‘green conditionality’ (Dashwood ). The Multilateral Investment Guarantee Agency (MIGA), for example, was shamed into considering environmental criteria after disasters at two gold mines it had insured: Omai, Guyana (Golden Star Resources), and Irian Jaya, Indonesia (Freeport McMoRan). Instances of various global governance arrangements have occurred in many other sectors, such as banking, insurance, and accounting, often through professional associations (Porter ). Global companies, as moral agents, have acted, individually and collectively, as norm entrepreneurs in the spread of global CSR. It would be an over-simplification, therefore, to assign too much credit to NGOs for the rise of CSR as a norm informing business practice. There has been an important change in mindset on the part of both companies and NGOs. To their traditional roles as advocates, agenda setters, mobilisers, and information disseminators, NGOs are now directly involved in global governance decision-making. In recognising the global power of NGOs, global companies came to recognise their legitimacy as agents of social
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change (Pattberg : ). For their part, global companies are no longer just targets of NGO campaigning or objects of state regulation, but political actors who have been assigned and/or taken on public responsibilities (Flohr et al. : –; Hofferberg ). The emergence of transnational global governance through certification and monitoring represent significant steps in collective action, signifying the willingness of global companies, NGOs, states, and international organisations to work together towards shared goals. Exposure of irresponsible activities in the s and early s towards the environment and workers marks the emergence of CSR as a global norm. By the late s, a growing number of formalised institutional arrangements involving various combinations of states, NGOs, and global companies in response to global governance challenges confirmed the rise of CSR as a global norm. As Bartley notes, they were the product of strategic bargaining among actors with divergent interests and conflicting understandings of the legitimacy of various ways of regulating global capitalism (Bartley : , –).
. Institutionalisation of CSR: s–s The standardisation of transnational governance arrangements across the full spectrum of economic sectors with the participation of a diverse range of actors from the late s marks the remarkably rapid institutionalisation of global CSR. While seeming to recede in the s, states and heads of government have played a significant role in the proliferation of multistakeholder governance initiatives and the delegation of an expanding scope of responsibilities to private actors. NGOs continue to play a critical role in both pushing for expanded responsibilities for global companies, while also continuing to pressure states to regulate them. This section highlights these developments through a brief account of the variety of global governance arrangements, the role of key actors in pushing the global CSR agenda, the qualitative expansion towards human rights as reflected in the UNGPs, and the growing significance of ‘market’ incentives underpinned by state regulation in increasing the reach of global CSR. Global initiatives such as the FSC, Responsible Care, and SA represent important early examples of the institutionalisation of CSR. These examples illustrate that there was significant variation in the governing bodies of these initiatives and types of standards. The FSC has a collaborative arrangement with NGOs and forestry companies, and like SA ,
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has certification and monitoring systems in place. Responsible Care is an example of industry self-regulation. In another variant, the International Organization for Standardization (ISO), a highly respected independent, non-state standard setting body, developed in the s the series of Environmental Management Systems (EMS). EMS ensures that companies have the internal systems in place necessary to assume responsibility for environmental care, and have enjoyed widespread uptake by many industries. In , CERES went on to establish the Global Reporting Initiative (GRI), a multi-stakeholder process that developed a comprehensive reporting framework across wide-ranging economic, social, and environmental indicators. Although voluntary, the GRIs were developed under the auspices of UNEP, lending state-based authority and support for improving the environmental performance of global companies. The GRIs have been widely adopted by global companies, and are reported on in the growing proliferation of stand-alone CSR reports (Dashwood ; Thompson ). Non-financial reporting is now so prevalent that it has become an ‘institutionalized standard of behaviour’ for global companies (Flohr et al. : –). Globalisation in its current form has favoured the market and raised questions both about what the state should regulate and what it is capable of regulating. Now that a variety of ‘collaborative’ global governance arrangements are in place, contestation and negotiation has shifted to the monitoring, auditing, and enforcement of CSR governance in a context of ‘hybrid’ arrangements that are not strictly ‘voluntary’ but neither strictly regulatory in the ‘command and control’ sense. This contestation is reflected in the range of types of initiatives, from legally binding norms such as UN treaties to hybrid arrangements that require an obligation to undertake initiatives agreed upon collaboratively, to others that depend on social recognition, such as UN declarations. Yet, amidst the rapid proliferation of self-regulatory and collaborative governance arrangements in the late s/early s, the state was never as far-removed from these processes as it might have seemed. A wide range of CSR-relevant norms are embedded in such statesponsored processes as the OECD guidelines for MNEs, the ILO regulations and the UN Global Compact, which was initiated in by former UN Secretary-General Kofi Annan and adopted in . The Global Compact could be considered a milestone in the emergence of CSR as a global norm as it reflects a broad-based consensus that companies’ responsibilities encompass environmental care, workers’ rights, anti-corruption, and human rights.
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Rise of Corporate Social Responsibility
Political leaders lent their authority to, and facilitated the growth of various governance arrangements, helping to entrench CSR as a global norm by the end of the s. Centre-left governments in the United Kingdom and USA sponsored the development of industry codes of conduct. The Clinton administration, for example, took the lead in the establishment in of the Apparel Industry Partnership (AIP), which subsequently led to the establishment of the independent Fair Labour Association (FLA) and agreement on some basic principles. For its part, the Blair government created the Ethical Trading Initiative (ETI) in , to develop a set of voluntary standards and monitoring processes for the apparel industry (Haufler : –; Bartley : –). Clinton and Blair cooperated in other areas to provide leadership for multi-stakeholder/collaborative governance arrangements, including the Voluntary Principles on Security and Human Rights (VPs) (). The VPs were a response to concerns about human rights abuses in the extractive sector over corporate arrangements to provide security for their operations and personnel. Since the s, the most significant example of state-facilitated CSR is the leading role the UNSG played in overseeing the development of the UN Guiding Principles (GPs) in response to long-standing and serious concerns about the complicity of companies in human rights abuses. John Gerard Ruggie considers the execution of Ken Saro Wiwa and his colleagues in over their opposition to Shell’s damaging operations in the Niger Delta in Nigeria to be one of the ‘emblematic’ cases that cemented CSR on the global agenda (Ruggie : –). In , Kofi Annan appointed Ruggie as the Special Representative of the Secretary General (SRSG) on the issue of human rights and transnational corporations and other business enterprises. A process of very extensive consultations with a wide range of actors around the world ensued. The Ruggie Framework, or Guiding Principles (adopted in ), calls upon international business to respect human rights, while reinforcing the responsibility of states to protect human rights (Ruggie ). The GPs reflect the further expansion of the scope of the CSR policy norm, and are significant for the fact that they were endorsed by the UN Human Rights Council, even though governments did not negotiate the text themselves. While not legally binding, they nevertheless assign to global companies’ the ‘obligation to promote, secure the fulfilment of, respect, ensure respect of and protect’ human rights (Ruggie ), pointing to the ongoing salience of the ‘voluntary to obligatory to mandatory’ continuum discussed earlier in this chapter.
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Yet, the GPs are distinct from the efforts in the s to regulate global companies, and embody ongoing contestation over whether global companies should be regulated in the command and control sense. The GPs were a response to a major push in the late s by human rights advocacy groups to draft a treaty on human rights that would be binding on global companies under international law. The ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ was presented in to the UN Commission on Human Rights. Global companies were strongly opposed to the ‘Norms’ (as they were called), reflecting deep divisions between global companies and human rights advocates, including Amnesty International and the International Federation for Human Rights (consisting of more than organisations). Lacking government support, the ‘Norms’ gained no traction. The GPs thereby represent a compromise between NGOs that wanted to see global companies bound by an international treaty, and states as well as global companies, which were opposed to this path (Ruggie : xvii–xxi). Further adding to the complexity of current trends in global governance is the example of the ISO Social Responsibility guidance standard (), which is another critical recent milestone in the institutionalisation of CSR as a global norm. As a completely private organisation, it oversaw negotiations between states, NGOs, professional associations, and many other interested actors in the development of the standard. ISO is different from the ISO EMS developed in the s, in that it is an actual standard, intended to be the global normative framework guiding CSR implementation by public, private, and civil society actors (Webb ). The dropping of ‘corporate’ from the social responsibility standard reflects the goal that public sector actors may also adopt the standard. Its potential and influence can be gauged by the fact that the European Commission cites ISO , alongside the OECD MNE Guidelines, the Global Compact, and the GPs as standards that should guide European companies (European Commission ; Webb ). In the s, a growing web of market-based regulatory requirements on CSR-related matters helped to entrench CSR in the reporting systems of global companies. The Sarbanes-Oxley Act, introduced in the USA in after the Enron and other scandals, is wide-ranging and its reporting requirements extend well beyond accountability to economic actors for financial performance. All companies listed with the New York Stock Exchange are required to submit annual reports under the Act. As another example, in the United Kingdom amended the Companies Act by
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spelling out a statutory duty for UK companies to give regard to CSR principles while advancing the success of the company (Tricker : ). In , the USA passed the Dodd-Frank Act, which under Section requires all companies reporting to the SEC to disclose their use of ‘conflict minerals’, or minerals deemed to be funding armed conflict in places such as the DRC. In May , the EU passed similar legislation, which will come into force on January , to give companies time to adjust (European Union ). These regulations are in turn grounded in the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas, a multi-stakeholder governance initiative which was first published in and was most recently revised in (OECD ). Evidence of the institutionalisation of CSR can be further found in the fact that many stock exchanges, a pivotal actor with enormous influence on markets, now require reporting on environmental, social, and corporate governance (ESG) performance. In the early s, very few stock exchanges were doing anything about sustainability reporting, but since the mid-s, there has been a dramatic increase in the number of exchanges providing guidance on ESG reporting and/or requiring mandatory ESG disclosure (SSE ). Securities commissions now require companies to report on any matter deemed ‘material’ to their operations and financial outlook, which has expanded to include environmental and human rights risks that could affect companies’ profitability. More recently, investor-driven governance networks have influenced CSR norms through market pressure (see MacLeod and Park ), and institutional investors have promoted socially responsible investment, another form of market pressure on companies. As the section has demonstrated, the s to s have seen a further expansion of the scope of CSR and a growing tendency for states to become directly involved in multi-stakeholder global governance initiatives alongside NGOs and global companies. We have also seen the willingness of some NGOs to work with the private sector in global standard-setting, but NGOs still generally prefer state regulation to various hybrid or purely voluntary global governance initiatives (Ruggie ). Significant statebased regulatory initiatives, such as Sarbanes-Oxley and Dodd-Frank, have a global reach, and suggest that the state is reasserting itself in the CSR field through market mechanisms. Initiatives such as guidance and/or mandatory ESG reporting, furthermore, although once concentrated in a very few advanced industrialised economies, are now expanding to important emerging economies such as Brazil and South Africa. One cautionary
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note is that shifting political/ideological trends can lead to a reversal of past initiatives – the Trump administration’s threat in early to suspend section of Dodd-Frank pertaining to conflict minerals, although not carried out, has created considerable uncertainty and taken pressure off companies to comply. A variety of global governance arrangements will likely remain the dominant tendency along the state regulation – collaborative governance – state delegation continuum.
. Conclusion Since the emergence of the global CSR norm in the s, there has been a significant expansion in the scope of responsibilities assigned to global companies, together with a transformation in understanding of the nature of international business’ relationship to society. These changes were enabled by major developments, including globalisation, political shifts in the advanced industrialised countries, the end of the Cold War, and an upsurge of FDI in the Global South. Ruptures in the post–World War II embedded liberal compromise caused global governance challenges and the response to these challenges is reflected in the rapidly multiplying global governance arrangements that emerged by the late s across all economic sectors. The variety of specific global initiatives is a function of significant differences across sectors, but is also a product of a discursive process of contestation and negotiation between states, global companies, NGOs, and other actors. The negotiations between this community of actors led to the achievement by the late s of CSR as a global policy norm. While these broad shifts appear to represent a linear progression in the emergence and spread of the global CSR norm, the variation in forms of global governance arrangements and in the actual practice of CSR across sectors and countries with different institutional contexts, point to a wide spectrum of views on the appropriate assignment of responsibility. Debates centre on differences over who should assume responsibility, what that responsibility should entail, whether CSR should be ‘voluntary’, and what the appropriate scope of CSR should be. The period from the s to the s has seen various tendencies or manifestations of differences between key actors over these questions. In the s states signed on to global environmental and labour treaties were prepared to incorporate them into domestic law, thereby regulating companies within their national jurisdictions. Yet efforts on the part of countries in the Global South to directly regulate global companies through the Code of Conduct for TNCs ()
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Rise of Corporate Social Responsibility
were met with strong resistance. Instead, from the s, states began to delegate responsibility for the provision of ‘public goods’ to private actors at both national and global levels. After a proliferation of global governance arrangements in the s and early s that ranged from voluntary to obligatory to mandatory, the s appears to be witness to the re-emergence of the state. In the late s/early s, states seemed to have receded (Ruggie : ), but in fact, as we’ve seen, the UN and its various organisations (IFC, World Bank, UNEP, Human Rights Council), as well as prominent political leaders, have frequently played a supporting, if not direct role, in a range of global governance initiatives. States are still reluctant to regulate global companies directly (as the negotiations of the GPs revealed) but are now showing greater willingness to regulate through the market. In addition, the widespread practice of corporate reporting on non-financial performance, the growing number of stock exchanges mandating ESG reporting, together with regulatory developments such as Dodd-Frank, signifies the institutionalisation of environmental and human rights responsibilities of economic actors. Such market-based forms of regulation have a global reach in part because of the market dominance of the Untied States in particular, but also because international organisations under the UN umbrella are engaging in myriad multi-stakeholder global governance initiatives. It is doubtful that we are witnessing a trend towards reregulation by the state, however. Collaborative global governance arrangements (or co-regulation) therefore remain the dominant tendency and offer the promise of spreading decision-making authority across a wider range of state and non-state actors.
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An Expanding Conception of Social Responsibility? Of Global Norms and Changing Corporate Perceptions Alvise Favotto and Kelly Kollman
.
Introduction
How do large corporations define their social responsibilities in the early twenty-first century and to what extent have these definitions changed in light of global campaigns to improve multinational corporations’ (MNCs) citizenship, human rights, and environmental practices? Corporate social responsibility (CSR) and the idea that firms have broad obligations for their workers and the communities in which they operate are not new (see Dashwood in this volume). During the first industrial revolution of the eighteenth and nineteenth centuries firms in Western countries regularly took on what are now considered public duties by providing housing and building ‘company towns’ for their employees. In the age of empire, corporations such as the East India Company played a more overtly political role by helping to establish and administer European colonies in North America and Asia (see Thompson in this volume). With the advent of the welfare state in the twentieth century, these tasks, to varying degrees, were taken up by states. Corporations’ social obligations became more narrowly focused on community philanthropic work in the USA and, in continental Europe, on their role as social partners in supporting collective bargaining and a generous welfare state. This accommodation between business and society has been challenged in the twenty-first century by economic globalisation and the market ideologies that have facilitated this structural change (Brown et al. ). As corporations’ production and supply chains have become increasingly dis-embedded from their national economies and production has moved to countries with weaker governing capacities, states’ efforts to regulate powerful firms and to curb their negative externalities have become more complex, and many would argue, compromised (Dashwood in this volume). Globalisation, however, also has given rise to transnational social movements and civil society actors whose campaigns often directly target large
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An Expanding Conception of Social Responsibility?
MNCs and seek to persuade these actors to take a broader view of their social responsibilities through the promotion of corporate citizenship and the prominent sustainability agenda. While corporate citizenship draws on philanthropic traditions developed in the USA and United Kingdom (compare Thompson in this volume), corporate sustainability takes its starting point from the sustainable development norm, which the UN introduced in the late s via the Brundtland report (World Commission on Environment and Development ; Auld et al. ; Matten and Moon ). The latter remains a contested concept, but encourages firms to define success according to a ‘triple bottom line’ that includes their social, environmental, as well as economic contributions to society. NGOs, often with the help of intergovernmental organisations (IOs) such as the UN, have drawn on the sustainability norm to persuade firms to be more transparent about their social and environmental impacts and to work with key societal stakeholders to improve their performance in these areas. This increasingly institutionalised community of sustainability actors has sought to develop and embed a common set of principles and practices into numerous initiatives and voluntary codes such as the Fairtrade logo and the UN Global Compact, which have proliferated since the s. Both the promotion of sustainability CSR and the globalisation of corporate citizenship are based on the idea that the accountability model of responsibility critiqued in this volume’s introductory chapter in which states would hold firms to account through formal legal processes, is no longer adequate. In a globalised economy, MNCs’ production and distribution chains often are long, involve many layers of suppliers, and run across multiple state jurisdictions with differing labour and environmental regulations as well as levels of enforcement. In such a system, liability is difficult to attribute to a single legally responsible actor – even when rules are clear and enforced – because of the complex and fragmented nature of global production chains. Global foundations, environmental and labour activists, and international organisations, however, have argued that the new realities of global markets do not absolve MNCs of their moral responsibility for what occurs along their production chains even if they are not legally responsible per se. Further, many of these groups and business leaders themselves argue that MNCs have a duty to give back to the communities in which they operate given how much power and wealth they have gained as a result of economic globalisation. International relations (IR) and management scholars have written extensively about the advent and effects of these new global and globalised forms of corporate social responsibility (Prakash and Potoski ;
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Dingwerth and Pattberg ; Scherer and Palazzo ). A great deal of this research, especially by politics scholars, however, has focused on the effects of individual schemes such as the UN Global Compact (Bennie et al. ; Knudsen ). Less research has examined how the addressees of these new models of CSR – primarily MNCs – have negotiated their response or the extent to which they incorporate these CSR norms and practices into corporate aims and policies. As a result, we have little insight into how firms understand and have come to define their social responsibilities within increasingly globalised markets and in light of the changed normative environment in which they exist. To use the volume’s framework, while we know who the responsible actors of CSR are, we remain under-informed about the types of responsibilities these actors have embraced or to whom, or on what basis, they are willing to hold themselves to account. As such, we focus on the proactive dimension of responsibility as well as how MNCs engage with the moral judgement of key stakeholders. To address these questions and assess how MNCs understand their social responsibilities in light of the advent of global CSR norms, we analyse the management statements published in the CSR reports of fifty US and fifty German firms at three points in time from the mid-s to . The changing commitments made in these reports indicate that over this nearly twenty-year period many, but far from all, MNCs have indeed incorporated these increasingly global CSR practices into their statements and expanded how they define their responsibilities to the societies they affect. Specifically, firms have expanded the types of social and environmental problems for which they claim responsibility, are more likely than in the past to acknowledge they have a moral responsibility for these issues, and an increasing number indicate they are willing to hold themselves accountable to a broader set of societal actors. Despite the global nature of CSR norms, MNCs’ reactions to these norms and practices are still influenced by their home countries. New CSR norms have been grafted onto pre-existing, largely nationally determined notions of to whom corporations are responsible and on what basis these obligations exist. US corporations, for example, still define their social responsibilities in terms of being a member of the local communities in which they operate, while continental European corporations are more likely to define their responsibilities in relation to the demands of important, and increasingly transnational, societal stakeholders. The management statements hint at an important caveat to this story of national reception, however. Firms in both Germany and the USA have engaged
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An Expanding Conception of Social Responsibility?
more substantively with environmental sustainability than with social sustainability. It is here that the sustainability community has had its strongest effect in structuring firms’ definitions of their social responsibilities and where we are most likely to see MNCs adopt an ethics of care. In the conclusion, we discuss the implications of this differential engagement with CSR areas – a strangely neglected topic in the literature – for understanding how responsibility norms are created within contemporary global markets. The next section reviews the literature on the globalisation of CSR and argues that despite more than a decade of research, we still know relatively little about how firms engage with these new norms of responsibility, which accountability practices they are willing to implement, and to which CSR areas firms are most likely to apply these new standards of behaviour. The third section outlines the methods we use to analyse firm documents to address these questions. The fourth section presents our findings and examines the extent to which German and US firms have engaged with the norms and practices promoted by the global sustainability community as well as more traditional notions of corporate citizenship. The final section offers conclusions and seeks to place these findings in the wider themes of the volume.
. Globalising CSR Norms and Practices As outlined in Dashwood’s chapter (this volume), understandings of corporate social responsibility have become increasingly globalised since the s. This process has occurred through a number of channels. The first is the diffusion of Anglo-American corporate citizenship practices to continental Europe and to a lesser extent to the Global South. Rooted in European paternalism and US managerial trusteeship (Djelic and Etchanchu ), corporate citizenship practices encompass civic and philanthropic initiatives such as corporate giving and employee volunteerism. These practices often are regarded as an ‘older’ CSR mode (Auld et al. ) entailing volunteeristic and ad hoc forms of responsibility that target a firm’s neighbours and local communities (Logsdon and Wood ). The diffusion of these practices has been fostered by the expansion of UK and US MNCs’ operations to developing countries. These MNCs have increased the number of corporate citizenship initiatives they support in developing countries as their operations and supply chains have expanded to locales in these countries. In addition, MNCs from continental Europe have taken up these philanthropic and civic initiatives more frequently and
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explicitly since the s despite having a weaker tradition of such practices. Some scholars have argued that the spread of US–style corporate philanthropy to European firms is linked to greater exposure to these practices in global markets, but also to the need to (re)gain social legitimacy in an era of neo-liberal policies and welfare retrenchment in these European countries (Matten and Moon ; Kinderman ). The second channel through which CSR has been globalised is via the rise of what Auld et al. () call ‘new CSR’ (compare also chapters by Dashwood and Thompson in this volume). In contrast to more traditional corporate philanthropy, which seeks to enhance a firm’s reputation through its ‘good works’, new CSR relates more directly to a firm’s impact on society and encourages corporate actors to internalise their negative social and environmental impacts, often through participation in voluntary codes such as the UN Global Compact (Auld et al. ). This newer form of CSR is associated with the sustainable development norm and the concomitant idea of evaluating firms according to a triple bottom line of economic, social, and environmental performance (Vogel ). Many scholars have attributed the rise of sustainability CSR to economic globalisation and the difficulty of regulating powerful MNCs that operate across multiple and often poorly regulated political jurisdictions (Vogel ). As a result, NGOs and intergovernmental organisations have targeted firms directly to take responsibility for their impacts rather than relying solely on lobbying governments for better regulation or negotiating binding treaties to coordinate rules across borders (Pattberg ). As Dashwood argues (this volume), this new CSR has become increasingly institutionalised at the global level since the s through the creation of numerous and varied voluntary sustainability initiatives such as the UN Global Compact, the Forest Stewardship Council’s sustainable forestry scheme, and the popular Global Reporting Initiative (Favotto et al. ). Such initiatives were not developed in isolation from one another; rather they emerged as networked outcomes, originating in a recognisable ‘organizational field’ as is described by Dingwerth and Pattberg (). This field corresponds to the concept of community outlined in the introductory chapter and is comprised of a network of actors, their relations and positionings that form around specific policy issues and thus provides the site where policy norms are negotiated and over time become structurated. The sustainability community includes new CSR actors such
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An Expanding Conception of Social Responsibility?
as NGOs and IOs in addition to MNCs, business associations, and policymakers and is held together by such organisations as the International Social and Environmental Accreditation and Labelling Alliance (ISEAL) (Loconto and Fouilleux ). Over the past two decades, a core set of norms and best practices has emerged and developed in this community that structure sustainability codes and ultimately the standard CSR procedures of firms themselves. These norms and best practices, which now underpin many sustainability codes, whether they apply to child labour, sustainable forestry, or climate change, include the following elements: rulemaking through multistakeholder structures, transparency, stakeholder dialogue, and collaborative corporate learning through procedures such as target-setting, auditing, third-party certification, and reporting (Loconto and Fouilleux ). The community has developed these structures and practices, at least in part, to gain the trust of participant market actors by involving business in the drafting of the codes and employing procedures familiar to firms such as auditing and reporting. Despite this commitment to collaboration and widespread corporate participation in these codes, sustainability CSR and the schemes created by this community remain sites of contestation between new CSR actors such as NGOs on the one hand and business actors and associations on the other (Bartley ; Dashwood in this volume). Taken together the globalisation of both old and new modes of CSR have expanded the notion of corporate responsibility away from mere legal liability in which firms, as Milton Friedman () once famously stated, are only expected to maximise profit and follow the law. Corporate citizenship for its part creates an expectation of corporate moral responsibility in which firms take it upon themselves to exercise an ethics of care within the local communities in which they exist. Although an exercise of self-judgement, corporate citizenship is often fostered by legitimacy concerns and a desire to maintain a ‘social license to operate’ (Deegan ; Brammer and Pavelin ; Matten and Moon ). Newer, sustainability forms of CSR, which are more institutionalised at the global level than corporate citizenship practices, also seek to expand notions of corporate responsibility, but focus more on the duty firms have to address the negative impacts of their operations and the operations of the market system more generally. The emphasis on multi-stakeholder initiatives and collaborative problem-solving within sustainability CSR thus blends self-judgment and the judgement of others as the sustainability community seeks both to push firms to take greater moral responsibility for the
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negative impacts of capitalism and to shame the organisations that choose not to conform to these new norms of responsibility and accountability practices. MNCs thus are being confronted by a broadly promoted set of novel expectations about their social responsibilities, which call on them to make moral commitments to improving their social, environmental, and community impacts generally beyond what is contained in law. To date, research by IR and management scholars have noted that firms increasingly are engaging with many of these new responsibility practices but that this engagement is uneven and varies by firm size, sector, and home country (for overviews see Vogel ; Scherer and Palazzo ; Bernhagen and Kollman ). This uneven engagement is perhaps not surprising given that corporate citizenship draws on particular national traditions and sustainability CSR remains a site of contention between business and new CSR actors (Bartley ; Wright ; Dashwood in this volume). But our understanding of how firms engage with these expanded conceptions of their social responsibilities has been limited somewhat by the approach that much of the International Relations literature has taken to researching the new phenomenon. In particular, IR scholars have focused on the effects that individual sustainability codes such as the Global Compact have on corporate behaviour (Knudsen ). They have been particularly interested in how the design of these schemes interact with the socio-economic structures of firms’ home countries to create incentives, generally material, for firms to participate in such codes and to modify their behaviour (for an overview, see Auld et al. ). What these scholars only rarely consider is how firms actually engage with these new responsibility norms or the extent to which firms lend legitimacy to the practices developed within the global sustainability community. Given their largely voluntary nature and the fact that the best practices prevalent within the community are applied to numerous environmental and social issues, however, these are not trivial questions. Firms have to make judgements about how much of their market and social legitimacy depends on meaningful engagement with these norms and practices. While the literature in business management suggests that old and new modes of CSR can coexist in firms’ practices (Logsdon and Wood ; Pedersen ), we have little insight into what firms are willing to take responsibility for, on what basis or to whom they feel they are accountable, or how this changes over time. In the remaining sections, we adopt the practice-based framework laid out in the introductory
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An Expanding Conception of Social Responsibility?
chapter to examine the extent to which the rise of global CSR has caused firms to expand how they define and communicate their social responsibilities to key stakeholders and the general public.
. Analysing Corporate Perceptions of Their Social Responsibilities We analyse the management statements published in the CSR reports of fifty German and fifty US MNCs at three points in time to evaluate how firms have engaged with the global CSR norms and practices outlined in the previous section. Management statements are opening documents in CSR reports, generally between and , words long, that firms use to convey the organisation’s vision and strategic orientation in a succinct manner (Tengblad and Ohlsson ). Such documents are frequently presented as ‘CEO letters’ signed by the Chief Executive Officer or Chair of the Board, but are meant to represent the organisation’s commitments and strategy. The three time periods – –; –; and – – roughly cover the start of the institutionalisation of CSR norms at the global level in the mid-s to , which was the most recent of reports available when we undertook the analysis in . We include a mid-point to gauge the scope and speed with which firms engage with these norms and practices (Dashwood in this volume). We identified the fifty largest German and fifty largest US firms based on the Capital IQ ranking that measures size according to revenues, profits, and employees and downloaded the CSR reports from the CorporateRegister database. Where the reports were not available from this database, we obtained them from the firm’s website. As is common practice in the literature, we chose to analyse the CSR reports of large corporations because these firms are the most likely to publish such reports. As such, our analysis is skewed towards firms that are the most prone to engage with and implement CSR and sustainability practices. Although not representative of all firms, the MNCs analysed here play an important role in influencing the practices of small and medium firms through the market pressure for CSR compliance they create via their supply and production chains. Research has found that small and medium-sized firms tend to be very responsive to perceived pressure from their business partners to improve their environmental impacts (Darnall et al. ).
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The two samples are similar in terms of sector activity. Both samples roughly contain an equal number of firms from four sectors: manufacturing, transport, finance, and retail. Finally, we compare the management statements of German and US firms in order to gauge how much convergence the advent of global CSR norms has induced across two countries in which CSR practices traditionally have varied significantly (Matten and Moon ). As this literature has illustrated, there is good reason to believe that national business systems, which include the political institutions, regulatory frameworks, and economic structures of national markets, shape how firms view their social responsibilities even in an era of globalisation (Hall and Soskice ; Jackson and Apostolakou ). Thus, by holding firm size and sector roughly constant and varying management statements over time and across two countries, we can better evaluate the extent to which the key norms and practices of old and new forms of CSR have influenced how firms define their social responsibilities in similar and differential ways. We analyse these management statements, using a self-generated coding frame that allows us to evaluate the following themes: () the extent to which firms have incorporated social, environmental, as well as citizenship issues into definitions of their social responsibilities; () the level of firm engagement with the core norms and practices advocated by the sustainability community (e.g. reporting environmental and social impacts, setting improvement targets, transparency, and stakeholder dialogue); () the social actors to whom firms indicate they are accountable; and () the rationales firms provide for their CSR commitments. Taken together this analysis allows us to examine the ways in which firms’ engagement with citizenship and sustainability practices vary across time, different national settings, and the multitude of social and environmental issues contained in the two paradigms. The broader objective of this analysis is to learn whether and how firms have engaged with the changing normative environment in which they operate. To be sure these reports are strategic documents, presumably written by professionals for the purpose of enhancing public relations. But it is precisely this public element that illuminates how firms perceive they should define their social responsibilities and the extent to which firms have incorporated the broader conceptions of responsibility promoted by both sustainability and notions of citizenship CSR. We thus shed light on the extent to which global CSR norms and practices have influenced MNCs’ own conception and statement of their moral responsibilities, something that tracing the rates of participation in broad CSR codes and their determinants cannot.
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An Expanding Conception of Social Responsibility?
Table .: Coding structure Theme
Code
Theme
Code
Rationale
Ethical – Community Ethical – Corruption Ethical – Environment Ethical – Human rights Ethical – Labour Rights Legal compliance Market motive Risk management Social pressure
CSR area
Corruption Environment Giving/ community Human rights Labour/ Employees Lobbying Remuneration
Global CSR norms
Continuous improvement Materiality Stakeholder dialogue Sustainability Transparency
Stakeholder mentioned
Code participation
Carbon Disclosure EMAS GRI ILO ISO Stock market CSR Indexes UN Global Compact UN Guiding Principles
Business partners Community Customers Employees IOs NGOs State Regulators Shareholders Suppliers Trade Unions
*The coding structure is based on a binary coding scheme where = code not present; = code present.
. Tracing Firms’ Social Responsibility Commitments over Time and Cross-Nationally In this section, we present our findings of firms’ engagement with new and more traditional modes of CSR since the late s. In the first section, we analyse management statements across the entire eighteen-year period to evaluate the extent to which firms have incorporated the practices of the global sustainability community into definitions of their CSR practices. In the second section, we look at corporate citizenship practices and explore
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the extent to which German firms have adopted US-style practices of corporate giving and volunteering as some CSR scholars such as Matten and Moon () predict. The analysis from both sections reveals that firms increasingly have expanded how they define their social responsibilities both through their interaction with the growing sustainability community and through the diffusion of Anglo–American citizenship norms. As a result, many MNCs in both the USA and Germany have expanded how they define their responsibilities to (global) society over the past two decades. ..
Corporate Engagement with the Global Sustainability Community across Time
Perhaps the most obvious way in which we can see the influence of the global sustainability community is the fact that the statements mention the codes and standards promoted by global sustainability organisations more frequently than in the past (Table .). This finding is not surprising as many of the high-profile codes did not exist until the late s. But it is notable that not one manager mentioned participation in a prominent global sustainability code in the – reports. By –, per cent mention the UN Global Compact and per cent highlight their participation in the GRI. The fact that so many senior managers emphasise their firm’s participation in CSR codes in their short statements illustrates the extent to which firms now perceive that these codes lend their activities credibility and thus supports the claim of an increased institutionalisation of the community. The analysis also highlights, that increasingly, managers indicate their firm’s CSR programmes are structured around the core best practices promoted by the community including: sustainability (triple bottom line); transparency about firms’ environmental and social impacts and stakeholder dialogue. In the – reports, per cent of the managers mention sustainability as a core norm underpinning their CSR activities; by the – reports that number had risen to per cent of all firms (Table .). Even more notable is the increase in the number of managers who commit to the key best practices of transparency and engaging in dialogue with stakeholders. For transparency this proportion grew from per cent in the s to per cent in –. References to stakeholder dialogue grew from per cent of the statements in the s to per cent of the statements in –.
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An Expanding Conception of Social Responsibility? Table . Theme coverage all firms (%) over time CSR Reports (%) – n =
– n =
– n =
Ethical - Corruption Ethical - Environment Ethical - Giving Ethical - Human rights Ethical - Labour rights Legal compliance Market motive Risk management Social pressure
Global CSR norms/practices
Continuous improvement Materiality Stakeholder dialogue Sustainability Transparency
Code participation
Carbon Disclosure EMAS GRI ILO ISO SA Stock market CSR indexes UN Global Compact UN Guiding Principles
CSR areas mentioned
Corruption Environment Giving/ volunteering Human rights Labour/ employees Lobbying Remuneration
Stakeholder mentioned
Business partners Customers Employees IOs Local community
Theme
Code
Rationale
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Table . (cont.) CSR Reports (%)
Theme
Code
– n =
– n =
– n =
NGOs Political regulators Shareholders Suppliers Trade unions
Managers’ greater commitments to the norms of sustainability appear to coincide with the tendency of these managers to describe their firm’s social responsibilities in a broader way over time. In the reports from the s, not one German or US firm made a commitment to upholding broader human rights, combating corruption, or striving for fair remuneration practices, all issues that the NGOs and IOs within the sustainability community have promoted since the late s. By , per cent of managers mention their firm’s commitment to human rights. In addition, in the most recent period MNCs are much more likely to discuss their involvement in fighting corruption (Table .). This expansion of the social issues for which MNCs claim responsibility suggests they are engaging with a broader conception of CSR that acknowledges the complex ways in which firms’ activities affect society and social relations. Employee rights have been broadened to include human rights. Narrowly complying with national law has been expanded to combating endemic corruption whether or not the activities in question are strictly illegal. By acknowledging their role in these larger social ills, which are part and parcel of contemporary global markets, these firms are going beyond liability conceptions of responsibility and aspiring to something that appears more akin to an ethics of care for the broader social systems of which they are a part. Although voluntary engagement with sustainability practices involves self-judgement and a willingness to take responsibility for the harm they cause, firms have not reached this expanded conception of their social responsibilities on their own. Indeed, one of the core norms of sustainability is dialogue with relevant societal actors and collaborative problemsolving. There is a clear tendency for firms to take a broader view of who
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An Expanding Conception of Social Responsibility?
their key stakeholders are over time. In the management statements from the s the only non-market stakeholders mentioned frequently are local communities/neighbourhoods ( per cent) and government regulators ( per cent). By , managers had begun to mention the core actors of the sustainability community – NGOs ( per cent) and IOs ( per cent) – with far greater frequency. This indicates the increasingly important role that these actors play in how MNCs define their social responsibilities and the extent to which these firms have expanded the types of social actors to whom they hold themselves to account. The managers frequently mention market actors such as shareholders, business partners, and customers in the management statements across the entire eighteen-year period, indicating that these actors continue to be an important audience for these sustainability reports and to influence how corporations conceive of their social responsibilities (Table .). It is interesting to note, however, that managers make more frequent reference to their supply chain in relation to their CSR activities over time, with just per cent referring to suppliers in – and per cent in –. This is likely a response to the increased pressure that the sustainability community has put on firms to better manage their broader impacts within global markets and highlights the extent to which firms increasingly take responsibility for actors for whom they are not strictly legally liable. Finally, we examined the organisational rationales that managers give in the statements to justify their firm’s CSR activities. Much has been written about the ‘business case’ for CSR. And indeed, managers highlight market reasons, i.e. competitiveness, consumer pressure, and investor interest, for their CSR engagement more frequently across the entire period than any other rationale (Table .). But market motives do not seem to preclude firms from acknowledging their moral obligations. They frequently also claim to have an ethical commitment to certain CSR issues at the same time that they highlight market reasons for investing resources into these areas. Unsurprisingly, the areas to which firms most often claim to have an ethical commitment mirror those highlighted in the statements as important CSR issues, i.e. the environment, employee welfare, and corporate giving. Overall managers have become somewhat more likely to give ethical reasons for participating in CSR activities over time as both the proportion of statements highlighting ethical motives as well as the number of areas to which such a motive is applied have increased since the s. Further, firms have become more sensitive to the desires of non-market actors and
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social norms as indicated by the growing numbers who cite social pressure as a rationale for their firm’s CSR activities. This indicates that the moral commitments that firms claim to have are not entirely a matter of selfjudgement, but increasingly also influenced by the sustainability norms promoted by the NGO and IO members of the broader community. .. Corporate Engagement with the Global Sustainability Community in Germany and the USA If we look at how German and US firms have engaged with this new form of CSR across time, we see a broadly similar pattern emerge (see Table .). Firms from both countries mention key sustainability norms and practices such as transparency and stakeholder dialogue with increasing frequency over time. Both US and German firms also have expanded the number of social issues for which they take responsibility and are now more likely to engage with social sustainability issues such as labour and human rights than in the s. It is notable, however, that German firms highlight their commitment to these social issues more frequently than their US counterparts. This is perhaps not surprising given the different national business systems that exist in the two countries. The USA is a prototypical liberal market economy that relies heavily on the market to regulate key economic relationships such as those between capital and labour. By contrast, economic relations in Germany’s coordinated market economy largely are managed outside of competitive markets through consensual bargaining between capital, labour, key societal actors, and the state (Hall and Soskice ). Several scholars have posited that firms from home countries with more consensual stakeholder relations will be more likely to engage substantively with the new sustainability practices because of the emphasis on collaboration among multiple stakeholders (Matten and Moon ; Van Tulder et al. ; Favotto et al. ). Our analysis of the management statements largely bears out this proposition. Although the global sustainability community has clearly influenced firms from both countries over the past two decades, the managers of German firms engage with the codes, norms, best practices, and stakeholders that make up and promote the global sustainability community to a greater extent than their US counterparts. The literature on CSR governance has outlined why firms’ definitions of their social responsibilities should vary by country, but there was less reason to think that firms’ stated obligations would vary so dramatically
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Germany – CSR Reports (%) Theme
Code
– n =
USA – CSR Reports (%)
– n =
– n =
– n =
– n =
– n =
Rationale
Ethical – Corruption Ethical – Environment Ethical – Giving Ethical – Human rights Ethical – Labour rights Legal compliance Market motive Risk management Social pressure
Global CSR norms
Continuous improvement Materiality Stakeholder dialogue Sustainability Transparency
Code participation
Carbon Disclosure EMAS GRI ILO ISO SA Stock Market CSR ind. UN Global Compact UN Guiding Principles
CSR areas mentioned
Corruption Environment Giving/ volunteering Human rights Labour/ employees Lobbying Remuneration
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Table . Theme coverage (%), by US and German firms over time
Germany – CSR Reports (%) Theme Stakeholders mentioned
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Table . (cont.)
Code Business partners Customers Employees IOs Local community NGOs State regulators Shareholders Suppliers Trade unions
– n =
USA – CSR Reports (%)
– n =
– n =
– n =
– n =
– n =
An Expanding Conception of Social Responsibility?
by issue area. Our analysis, however, reveals a striking difference in how firms in both the United States and Germany engage with the environment and social issues. Of the CSR areas that have been promoted by the sustainability community since the s, the environment is by far the one to which firms have responded earliest and most consistently. Human rights, fighting corruption, and fair remuneration practices are all either ignored by these MNCs, especially US MNCs, or given short shrift, despite the fact that NGOs have promoted these issues since the late s. Only a handful of firms discuss their efforts to eliminate child labour from their supply chains and not one manager from either country in any of the three time periods mentions the problem of forced labour, although the issue has been a long-standing concern of the NGO community and embedded in most of the prominent codes of the field. The strong showing of the environment in these statements likely reflects the vibrant green movements that exist in both the USA and Germany, which have fared comparatively better than labour movements since the s. Beyond this common domestic source of support for the environment, we also strongly suspect that norms of environmental care are both more compatible with a market logic and better embedded in global markets than is the case with the social norms that underpin social sustainability issues. Put simply, our results suggest that the key organisations of the sustainability community have been more successful in constructing a market imperative for ecological responsibility than for social and human rights (Favotto et al ). As a result, the norms have induced greater convergence across time and the two countries in this CSR area (for a similar argument see Dashwood , this volume; Thomson this volume). We infer the existence of this market imperative for environmental sustainability in part because market actors, such as customers, shareholders, and business partners are the only stakeholders that feature prominently in both the US and German managers’ statements and thus are the only actors capable of driving a convergent agenda across the two countries. The perceived compatibility of environmentalism and market competitiveness is also evident in the German and US managers’ statements. Managers in both countries often make reference to the market opportunities that exist in improving their environmental performance, both in terms of making eco-efficiency gains and in producing green products for growing environmental markets. Firms’ engagement with social issues appears to be driven more often by a fear of being shamed by social actors than a true ethics of care as is evidenced by the fact that far
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fewer managers claim to have a moral obligation for social issues than for the environment (Table .). This is not to argue that environmentalism and market activity naturally go together. If a market imperative for ecoefficiency and greener products now exists that is because the sustainability community has helped to create and embed such a norm in global markets. Taken together this analysis illustrates that firms in increasing numbers have engaged with sustainability practices and expanded the types of CSR issues they take responsibility for as well as the kinds of non-market actors to whom they are willing to hold themselves to account. This implies that firms are not just participating in sustainability codes in greater numbers as the IR literature has established, but they are also engaging with the core norms and practices that underpin many of these codes and are posited to be the key to meaningful change. National points of origin still matter in how firms engage with these norms, but the CSR practices of German and US firms appear to be increasingly structured by their interaction with the broader sustainability community. .. CSR as Citizenship: The Global Diffusion of Corporate Giving Practices CSR scholars have also outlined the ways in which MNCs’ corporate philanthropy and citizenship practices have been globalised through processes of diffusion since the s (Matten and Moon ; Kinderman ). Traditionally national business systems and historic understandings of corporate responsibility have differed significantly in the USA and Germany. While Germany’s coordinated market economy focuses on firms’ relationships within non-market stakeholders, US firms have engaged in philanthropic practices to enhance their legitimacy (Matten and Moon ; Wright ). Although this type of corporate citizenship is complementary to the issues and norms promoted by sustainability CSR, it is not an area that the global sustainability community, with its emphasis on environmental and social sustainability, has promoted per se. It is thus not surprising that the only CSR area with which US firms engage to a greater extent than their German counterparts is philanthropy and volunteering in their local neighbourhoods (Table .). Indeed, in the reports from the s none of the German managers include corporate giving as one of their central CSR commitments; per cent of US managers highlighted these philanthropic practices. By the reports, however, more than one-third of German managers indicated they
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An Expanding Conception of Social Responsibility?
engaged in corporate giving and/or volunteering in the locales in which they operate. Although this is still significantly lower than the per cent of US firms that mentioned their commitment to such citizenship practices, it represents a notable convergence to the US model. Similarly, German managers’ ethical commitment to corporate giving increased over the eighteen-year period, although such commitments remain well below that of their US counterparts. These results largely confirm the work of earlier scholars who argue that globalisation is likely to cause these ‘older’ CSR practices to diffuse across countries (Matten and Moon ; Jackson and Apostolakou ; Kinderman ; Djelic and Etchanchu ). A number of these scholars have related the diffusion of citizenship CSR to the spread of neo-liberal policies and the increased need for firms in coordinated market economies to enhance their legitimacy in light of greater market competition and welfare retrenchment. In these accounts, citizenship CSR is often seen as a poor ‘substitute’ for state-based welfare (Matten et al. ). But our results also indicate that the diffusion of US-style corporate citizenship practices has led German firms to expand how they define their social responsibilities to include and make explicit an ethics of care for the locales in which they exist and operate (Matten and Moon ). As such, the spread of corporate citizenship norms becomes yet another channel through which CSR norms and firms’ understandings of their responsibilities to non-market actors has been globalised and to a certain extent expanded.
. Discussion and Conclusion Since the s, conceptions of corporate social responsibility have been strongly influenced by processes of globalisation via both the rise of the global sustainability community and the diffusion of corporate citizenship traditions. Both processes are associated with the increased integration of global markets and the governance and legitimacy gaps that have ensued. Economic globalisation has increased the number, size, and economic power of MNCs as well as eroded the foundations of the simple liability model of corporate responsibility in which firms are only expected to follow national law to be credible social actors. Large multinational corporations’ production and supply chains typically now span numerous legal jurisdictions that often include poorly regulated markets and an uneven set of regulations. In this system establishing which firms are liable for the injustices produced by global markets and to which governments
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firms are legally accountable has become increasingly difficult and, given the systemic nature of many of these problems, perhaps futile. Increasingly large MNCs have drawn on the corporate citizenship practices of giving and community volunteer work traditionally associated with AngloAmerican firms to enhance their legitimacy and build trust with increasingly sceptical global publics (Kinderman ). Notions of CSR have also been changed by a growing global community of NGOs and IOs that have sought to address the weaknesses in the governance of MNCs by directly targeting firms and encouraging them to minimise their negative social and environmental impacts on the societies in which they operate regardless of whether they are legally liable for these impacts or not. Specifically, this community has sought to develop novel understandings of corporate responsibility by promoting sustainability norms and the idea that firms should define success according to a triple bottom line of economic, social, and environmental performance. Over the past two decades, corporate sustainability has become increasingly institutionalised at the global level through numerous voluntary codes that are promoted by a loosely structured community of NGOs, IOs, and business organisations. This community has converged around a common set of norms and practices aimed at improving firms’ social and environmental impacts through a process of collaborative learning (Dingwerth and Pattberg ; Loconto and Fouilleux ). These sustainability practices, which include transparency, reporting, auditing, and stakeholder dialogue, now underpin many prominent sustainability standards such as the UN Global Compact, the FairTrade logo, and the FSC’s sustainable forestry scheme. Members of the sustainability community thus have attempted to redefine corporate responsibility away from a simple liability model to one that places a moral obligation on firms to address the social and environmental ills connected to global markets. Its focus on internalising MNCs’ negative social and environmental externalities is complementary to but distinct from the citizenship practices of corporate giving and community work and represents a distinct form of CSR (Vogel ; Auld et al. ). Taken together, however, the diffusion of corporate citizenship practices and the creation of a global sustainability community have altered how different actors understand and define corporations’ responsibilities to society. To date IR and management scholars largely have sought to understand this phenomenon by examining the effects of individual sustainability codes and community programmes. Far less literature examines how firms
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An Expanding Conception of Social Responsibility?
and managers engage with the underpinning norms and increasingly institutionalised practices developed and promoted within this changing normative environment. Given the still contested nature of CSR norms and the ‘beyond-compliance’ notion of responsibility contained within them, which blend a self-imposed duty on firms to curb their negative impacts with a growing respect for the judgement of societal stakeholders, the nature and extent of corporate engagement is crucial for understanding the impact of this new form of CSR. The longitudinal analysis of managers’ statements presented in this paper illustrates that through their engagement with the sustainability community and the norms these actors promote, a growing number of MNCs, albeit still a minority, has expressed a willingness to expand their environmental and social commitments beyond those contained in law. Firms are now more likely to take responsibility for a broader set of social and environmental issues than in the past. In part, this appears to be an effort to gain the trust of actors such as IOs and NGOs that can shame them and inflict reputational damage. But in addition, the management statements exhibit notions of organisational self-judgement and moral obligations for the wider global market system of which firms are a part, that signify the broader notion of responsibility outlined in the introduction. Although such statements may not (always) reflect actual practice, they suggest that managers are increasingly engaging with and willing to enter into dialogue about the core norms and best practices of sustainability and have come to publicly define their responsibilities to society in broader and increasingly common ways. The analysis of the managers’ statements, however, also reveals that firms’ engagement with the norms and practices of the sustainability community are uneven, contingent, and influenced by the notions of responsibility embedded in the traditions of their home country. MNCs’ home countries thus clearly still represent an important arena in which their understandings of these new norms and practices are negotiated. This likely explains why German managers are more willing to engage with a broader range of societal stakeholders and why they seem to lend the codes of the sustainability community more credibility than their US counterparts. CSR practices do not just vary by country as much of the literature has highlighted, but also by the nature of the problem firms are being asked to address. MNCs’ commitments to environmental issues in both countries are more developed, more obviously structured by the sustainability norms, and therefore more similar than their commitments to other
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CSR issues. This has occurred despite the fact that the sustainability norm emphasises the equal value of its economic, environmental, and social pillars and CSR initiatives to improve MNCs’ labour practices are of a similar age and structure as those that exist for environmental issues. It is beyond the scope of this chapter and our evidence to say definitively why this should be. But the findings highlight that understanding firms’ differential engagement with CSR issues is a potentially important area for future research. Our evidence and the literature provide hints of where to begin looking for answers. First, future research should explore how different CSR issues have been framed by sustainability activists. The narratives of responsibility developed in both the German and US management statements strongly suggest that environmental norms have become embedded in global markets to a greater extent than the social norms that underpin human and labour rights. Sustainability activists appear to have been more successful at framing environmental issues as a future business risk and opportunity. This may be related to the different nature of social and environmental sustainability. Labour and human rights are often viewed in absolutist terms. Unlike with environmental issues firms may have little to gain by showing ‘improvement’ in rights areas where there is no tolerance for poor or even lapses in performance. Human rights thus are often framed as a reputational risk for firms rather than as a future business opportunity. Where sustainability norms and practices have succeeded in framing firms’ moral obligations in ways that seem compatible with a market logic, as appears to be the case with environmental sustainability, MNCs across both countries appear to be more willing to embrace an ethics of care and to structure their practices to meet the expectations promoted by the sustainability community. In addition to how environmental and social CSR issues are framed, future research should also examine how actors within firms promote different issues. Many of the early CSR publications were environmental reports produced by environmental departments. Although many large MNCs now promote sustainability and include social issues in their remits, it seems that the environment may still have stronger champions within firms than labour or human rights. These latter issues are largely governed by human resource departments within many firms, which are not often allied with labour or human rights groups. Finally, CSR researchers could also examine differences in the NGO community that promotes social and environmental sustainability. Dingwerth and Pattberg () for example argue that environmental groups have been much
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An Expanding Conception of Social Responsibility?
more comfortable targeting firms directly to voluntarily reduce their environmental impacts whereas many labour activists still tend to prioritise lobbying for greater state regulation or legally binding international law to promote the social sustainability pillar. All of these factors may help explain MNCs’ differential engagement with environmental and social issues but more research is needed to examine the issue. Finally, our analysis also reveals that the globalisation of CSR has not been limited to the creation and institutionalisation of corporate sustainability. Managers of these large MNCs continue to include corporate citizenship in the definitions of their responsibilities. Although citizenship historically represents a distinct tradition from sustainability and is often considered to be an older form of corporate responsibility, these different types of CSR increasingly coexist in firms’ descriptions of their social commitments. In addition to the enduring importance of corporate giving and volunteering to US firms, these citizenship practices have become progressively globalised as is demonstrated by their incorporation into German firms’ statements after the s (Vogel ; Auld et al. ; Matten and Moon ). As a result, firms in both countries have extended the areas for which they take responsibility beyond those set forth by the sustainability community. This may eventually push the sustainability community to incorporate citizenship practices into its framework as for instance has happened with the inclusion of philanthropy and volunteering in the popular Global Reporting Initiative guidelines since the mid-s (Kolk ). Our analysis of the changing nature of firms’ social commitments since the s thus illustrates that processes of globalisation have clearly influenced and expanded how firms define their responsibilities, but CSR remains, as it always has been, a hybrid conception and set of practices.
Notes Our approach to corporate citizenship is in keeping with International Relations and business management scholars who use the term to indicate various forms of philanthropic and civic activities. For instance, Logsdon and Wood () define corporate citizenship as: ‘philanthropic contributions and corporate community relations including employee volunteerism and corporate good deeds’ (p. ). It should be noted however that the term is not used univocally in the literature. In particular, some works refer to corporate citizenship as an extended form of corporate responsibility potentially encompassing a variety of old and new CSR modes (see Matten et al. for a review).
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We designed our coding frame to take into consideration that disclosure on corporate citizenship and sustainability CSR may coexist in firms’ CSR documents (Logsdon and Wood ). For this reason, we included specific codes on corporate citizenship associated with the ‘rationale’, ‘CSR area’, and ‘stakeholders’’ themes (see Table .). Actual membership in these sustainability codes is much higher than indicated in the management statements. In , per cent of MNCs in our sample were members of the GRI (i.e. per cent of German and per cent of US corporations, respectively). About per cent of these MNCs participated in the UN Global Compact in the same period (i.e. per cent of German and per cent of US corporations).
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Can Corporations Be Held ‘Responsible’? Grahame F Thompson
.
Introduction
It is clear that corporations play a vital role in modern economies. They are the pervasive organisational form for the provision of goods and services, they act as depositories of vast amounts of capital and wealth, and they are the main employers of labour in an economy. But they exist under a very specific legal order in capitalist societies. They are almost universally treated as ‘legal subjects’ that exist separately and independently from their directors, officers, shareholders, or other human subjects with whom they interact. This chapter argues that legal separateness or ‘personhood’ is not a metaphor or fiction but a powerful legal reality (a ‘real entity’ view of the corporation). Corporations have certain rights, including especially the rights to own property and enter into contracts in their own name. And in common law countries if they commit a tort (a misdemeanour entailing a civil wrong – e.g. inducement to a breach of contract) this is also considered actionable as a consequence of their separate corporate identity. But this entity view of the corporation also means they have certain duties, though in most cases these are less clearly defined than their rights. It is these duties in the form of their corporate responsibilities that are focused on and investigated in this chapter. In particular, the politics of such corporate responsibility occupies the centre of attention later in the chapter. Of course, what these actual responsibilities entail depends upon quite how corporations like companies are conceptualised. Clearly, if a corporation exists as a result of an explicit agreement or contract it can be viewed as a distinct person before the law. It can enter into contracts with other entities as if it had a single will distinct from the wills and interests of its members. This is the basis of the real entity view. The alternative conceptualisation is to view it as an aggregate of separate legal persons, each with independent rights before the law who cannot have their separate
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interests represented by the one single will, except through common agreement. This is the origin of the corporate fiction view: the company is a fictional entity, created by a nexus of contracts between those natural persons involved in the contracting but who remain ultimately liable for its subsequent actions (e.g. Jensen and Meckling ). A strong feature of the real entity view of corporate personhood is that corporations – as separate property-owning legal persons – own their own assets and incur their own liabilities. Corporate assets and liabilities are separate from shareholder assets and liabilities. As a result of the ‘limited liability’ of shareholders the creditors of corporations or plaintiffs in a civil action against it can only enforce their claims against the corporation’s assets, not against those of its shareholders. For all practical intents and purposes, then, shareholders are shielded from any liability other than to the extent of the value of shares they own. So, a consequence of corporate personhood understood in this manner is that the assets of the corporation are protected against shareholder (and other) claims. Shareholders have no direct claim to the assets of the corporation, which they do not own. The corporation ‘owns itself’, as it were: its assets are a depositary of the corporation, existing as a legal entity in its own terms (Ireland ). Thus, any claim against the company for a perceived neglect of its responsibilities – whether private or social – is highly constrained. This protection afforded limited liability shareholders is controversial on several counts which – as we will see – are central to the discussion of the responsibilities either directly imposed on companies by the law or which arise in the context of external pressures for them to fulfil certain ‘social’ or ‘ethical’ obligations. Chief amongst these wider issues is a concern with whether there are any parties, other than shareholders, who have a legitimate stake in the company and deserve a consideration in corporate governance: for example, customers, suppliers, employees, and so on. Ought these other stakeholders be recognised legally or morally as corporate members? (Deakin ; Mansell ). And in addition, we have the issue of the corporate social responsibilities (CSR) that are thrust upon companies as a consequence of them being considered – in part at least – as ‘ethical actors’ with a wider social purpose. Should – and indeed can – any responsibilities associated with this aspect of corporate activity be incorporated into company governance? As it stands, however, corporate governance typically supports shareholder primacy by adhering to the generation of shareholder value and profit maximisation as the overall
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Can Corporations Be Held ‘Responsible’?
goals of commercial corporations. Under these circumstances the company has an exclusive private purpose and shareholder interests dominate. But this was not always so as the next section seeks to demonstrate. An excursion into the history of the corporate form shows how patterns of responsibility could be configured differently in the context of a social purpose for the company, installed by a license to operate that is not exclusively tied to private purpose and profit maximisation. After that, the chapter turns to how moral responsibility is actually configured in respect to the modern corporation. Can it still be thought of as a consequence of the individuals who either own it or work in it, or is it the outcome of a collective subjectivity with an identity that exceeds the owners or employees? (see also Erskine in this volume). On the basis of this discussion and in line with the book’s framework, the chapter moves to consider the political register for understanding corporate responsibility. Companies have become political entities (Brown et al. ) – key elements in overall societal governance. They are increasingly called upon to manage public services which takes them into a context beyond traditional CSR objectives. And while companies are constituting themselves as ‘citizens’ they are still not democratically organised internally or subject to the responsibilities normally demanded by an organised polity. How could a more democratic and accountable corporation be constructed? This raises issues of the reform of internal governance and external regulation: what is framed here as the ‘constitutionalization’ of corporate matters. The multinational corporation (MNC) poses these challenges acutely, so the final sections of the chapter deal with initiatives – particularly around corporate taxation – that illustrate this constitutionalising process in respect to MNCs, and which demonstrate the political formation of corporate responsibility rather than its moral character. As will become apparent shortly, political struggles over ‘responsibility’ in terms of company policy are located at the intersection of internal corporate governance protocols (sometimes legally imposed, sometimes the consequence of social pressures) and external regulatory mechanisms that take on an administrative character. These relationships between the internal and the external ‘constitutionality’ of the corporate form are particularly acutely posed in the case of MNCs, so it is the ‘politics’ around this organisational form – the struggles to define and operationalise the contours of an appropriate ‘corporate responsibility’ in the case of MNCs – that occupies the centre of attention in this chapter. By doing so, this chapter focusses in on the negotiated nature of governance and the politics that the concept of responsibility evokes.
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. Historical Emergence of the Modern Corporate Form and Social Responsibility Historically speaking, the corporation only recently came to be considered a totally private entity. From around the thirteenth century until the beginning of the nineteenth century it was understood as a solely public entity with definite social purposes and responsibilities. During most of this period the only entities in the United Kingdom, for instance, that were treated as legal persons and so qualified as corporations were not-for-profit organisations: including charities like schools, universities, hospitals, churches, etc., and borough councils. They could own property but each was governed by a constitution, drafted and approved by the Crown or the government, which set out their rights and obligations along with the objectives the corporation sought to pursue. Thus, the corporation was considered a concession licensed by the state (Maitland ). If a corporation acted against its constitution, i.e. beyond its legal powers, the courts had the authority to declare the offending actions unlawful. During this time for any such charitable institution to undertake commercial activities in order to make a profit was declared ultra vires. Thus, the granting of a corporate charter used to be strictly tied to service for the public good. But towards the end of the sixteenth century this practice started to change as the Crown began granting charters of incorporation to ‘trade associations’ like the English East India Company. Originally these associations were not-for-profit corporations. They did not carry out trade in their own names, but were granted a monopoly over a specified area of trade for a specific period of time (they were not perpetual). Business partners could become members of the trade association and were entitled to carry out business in that trade. However, for any such partnership, the firm would trade separately, with its partners sharing ownership of the firm’s assets as well as responsibility for its activities. But the Crown began to extend the granting of charters to new companies expressly for them to trade as commercial operations. The Crown gained financially from this practice and the ‘associations’ began to flout the initial intentions and also make a profit. Eventually, new commercial corporations were formed by both royal charter and Acts of Parliament to develop new patents and domestic trade, by this time seeking outside investors to provide the finance. However, as potential ‘investors’ began to pay to get a concession from the state accusations of corruption took centre stage. Highly suspect corporations were being uncovered, with individuals posing as commercial
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Can Corporations Be Held ‘Responsible’?
corporations to fraudulently seek out investors’ funds. In addition, the South Sea Bubble crash and other financial scandals caused further losses to investors. But with corporations bearing the responsibility (rather than shareholders), the victims could not easily receive compensation; nor could the courts easily penalise them (as corporations could not be imprisoned, for instance). So, the Crown began to tighten the conditions for granting a charter. After the Bubble Act of any joint stock undertaking whose conduct was deemed to be against the public interest was made illegal. The law also banned speculative buying and selling of shares; they could be bought only by those genuinely taking on a role in running a firm. And after the crash the Crown was more prudent in conferring the benefits of incorporation onto businesses. However, businesses still needed finance to develop and in spite of the Act companies found ways in which to raise funds to further their commercial activity. The effect was to encourage partnerships and unincorporated companies. But all this was deemed to be restricting the ability of companies to raise the large amounts of capital needed to finance further British industrialisation and so came increasingly into conflict with the emergent large scale capitalist order. Everything changed between and as a series of Acts of Parliament relaxed the controls on the creation of commercial joint stock corporations (Johnson ). It was during this period that the idea of limited liability became commonplace and this inaugurated the advent of the modern corporation. As a result, by the end of the nineteenth century the modern corporate form, characterised by perpetuity, with further attributions of ownership, agency, rights, and protections – and set within a very specific understanding of its legal status – became firmly established. It was in this context that the new questions of responsibility associated with the aforementioned companies began to emerge. And although this looks to be a very British story it was paralleled in many other countries: similar outcomes emerged there where the corporation stands as a separate legal entity framed by an administrative system which puts fulfilling its responsibilities firmly within the organisational competence of the individual corporation itself rather than being subject to a governance structure framed by a wider social purpose.
. Individual versus Collective Responsibility? The limited liability form of the modern corporation raises acutely the issues of the range of responsibilities that adhere to its operations. How can a company as a legal subject be considered responsible for its actions, who
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exactly is the responsible party, and how can any enforcement mechanism be implemented effectively? There are several registers in which a response to these issues can be considered (Wells : chapter ; Lampert ; Scherer et al. ). One strong claim is that only humans (natural persons) can be responsible because responsible agency is inherently inalienable. On the other hand, it is clear that the legal person status of the corporation gives it at least the quasi-identity of a natural person – something without consciousness but which nevertheless displays certain characteristics inherent in such a personhood. One added complication is that ‘natural person’ is also a legal category: it has to be a cognate being perceptible through the senses, able to rationalise and make decisions, and having an identity that persists through time (compare Erskine in this volume). Thus, there is no unproblematic naturalness associated with humans. Formally, then, we should probably speak in the terms of ‘artificial’ or ‘imagined’ personhood when discussing the company. But because so much of the conventional discussion is couched in terms of ‘corporate personhood versus natural personhood’ this terminology is retained here. A preliminary difficulty is hence whether companies can be legitimately considered as equivalent to ‘moral persons’. A way of doing this is to translate the operational characteristics of companies into the terminology of ‘corporate culture’ (Thompson ). Since culture conjures up a set of attitudes and beliefs comparable to those of ‘natural persons’ who are imparted with a certain moral agency, this might be meaningfully translated into the operations of corporations or any other commercial business. Moral beings are subjects of rights which they must administer in the form of intentions, and can be held individually responsible and subject to scrutiny and accountability for their consequence. If corporations are increasingly viewed as ethical entities – undertaking public as well as private duties and paying particular attention to the moral consequences of their actions – corporate rules and procedures specifying organisational behaviours in this respect (their ‘culture’) could embody a concept of moral intentionality. Can this be appropriately ascribed to corporations? Many think not (Lampert ). For others, however, (e.g., Werhane ) it is surprising how frequently this has become part of corporate culture: articles of association and mission statements abound with such invocations. In that corporate internal decision-making structures incorporate and impart these objectives into properly considered procedures that are followed through, events are re-described as corporate policy and attributions made accordingly. In effect, these become the ‘intentionality’
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Can Corporations Be Held ‘Responsible’?
of the corporation independently of those of its officers (French ). But in as much that corporate responsibility can become redescribed as social responsibility in this manner, does this necessarily coincide with them being considered morally culpable? Couching matters in terms of corporate culture pushes any analysis towards considering corporations as necessarily morally constituted, so companies would become morally compromised when flouting the standards or breaking the rules. However, this rather depends upon what the term corporate entity means in an operational sense. For instance, we might profitably draw a distinction between an entity and a unity in the case of corporate organisation (Thompson ). The firm considered as an entity may be organisationally dispersed – encompassing a range of activities, complex supply chains, branches, subsidiaries, and affiliates – so that it becomes very difficult to establish a common culture throughout all its undertakings and thereby impose a common internal decision-making procedure that works. Only if it can be recognised as a unity might this happen, and most companies are too complex for this to be the norm. Thus, the difficulty here is that attribution of a single point for moral culpability looks to be almost impossible in the context of the modern corporation. The discussion therefore needs to move away from questions involving a strictly ethical focus and onto considering corporate ‘social’ responsibilities in a more overtly political context, something taken up in a moment (compare also Haflidadottir and Lang in this volume). Where the law allows it – as in the case of torts in civil law jurisdictions, for instance – it is possible to bring particular company operatives to account if their actions are deemed unlawful. Significant natural persons, who occupy key positions in the firm and who are seen to have been responsible for serious lapses in duties and conduct, can be charged with ‘corporate manslaughter’, for instance. Punishments here involve imposing fines on the company and possibly imprisonment of executives for gross negligence (e.g. the UK Corporate Manslaughter and Corporate Homicide Act, see Wells : chapter ; Lampert : ). These cases are complicated to prosecute, however, and bringing them to a successful conclusion even more difficult (Gobert and Punch ). In addition, in the United Kingdom for instance, it is possible to purse corporate maleficence under health and safety legislation where appropriate – principally the Health and Safety at Work etc. Act – and similar legislation and directives exists in the USA and other EU countries. Clearly, the range of examples of corporate irresponsibility is a long one: tax evasion and avoidance, environmental degradation like the Deepwater
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Horizon oil spill in the Gulf of Mexico in , the exploitation of sweatshop labour in the developing world, and reports of poor working conditions in places like call centres and distribution warehouses, excessive levels of executive pay, and numerous scandals in the banking sector (Thompson ). The question is how to bring these into the realm of accountability and secure more effective recompense for those adversely affected. In addition, we might want to install more effective regimes of prevention rather than just concentrate on cures after the event. But what this discussion highlights is that the modern corporation is a thoroughly ‘schizophrenic’ entity (Ireland ). It is both a person and not a person at the same time. And in different contexts and for different purposes this schizophrenic nature of the firm makes itself apparent in inconsistency and incoherence in respect to both the law and popular commentary on corporate activity (Ireland ). We do not quite know how to characterise the company or what the company is. But there is nothing necessarily odd about the law in this regard being inconsistent or formally incoherent since this is a feature of the law more generally. As argued in the introduction to this volume, like any other social institution, the law is open for contestation and negotiation and is never quite what it seems.
.
The Political Corporation and Citizenship
One way of moving into a more political register for the analysis of corporate responsibilities is provided by considering the move from corporate personhood to corporate citizenship. As we have seen, the notion of corporate personhood is ambiguous to say the least: it does not easily provide a stable meaning. And increasingly companies are claiming to be ‘corporate citizens’ and being addressed as such by a whole range of advocacy, scrutiny, monitoring, and regulatory bodies (Thompson : chapters and ). This is particularly so for multinational corporations where the World Economic Forum and the UN’s Global Compact have been the leading advocates for the adoption of this terminology of citizenship. And some have tried to derive the corporate purpose from an analogy between corporate stakeholders and the citizens of the state (Veldman ). These initiatives are part of a ‘second wave’ of CSR developments (CSR Mark II) designed to institutionalise the commitments of ‘global corporate citizens’ (GCC) to ethical practices of business behaviour and
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Can Corporations Be Held ‘Responsible’?
corporate social responsibilisation (see Dashwood in this volume – the ‘first wave’ relied on individual companies to voluntarily adopt ethical standards). The language of citizenship provides a direct link to the increasingly perceived political nature of corporate activity. The company as a political actor – as well as an economic one – has, of course, a long history. But this has recently been reinvigorated by recognition that, as governments increasingly withdraw from a whole range of what were traditionally considered public responsibilities, companies are either being pressed to take over these responsibilities in the name of market incentives or eagerly embracing them for profitable opportunities (see Dashwood in this volume). And in so doing they have become a parallel societal governance mechanism that on the one hand supplements traditional public avenues of governance or on the other completely replaces them (Crouch ; Scherer et al. ). Either way, it is now clear that large multinational (and national) companies are operating as definite direct mechanisms of societal governance in a whole range of areas alongside, or instead of, governments. And this is supplemented by the growth of another parallel mechanism of social governance (also sometimes linked to CSR Mark II) namely corporate philanthropy. Corporate philanthropy involves much more than ad hoc donations to good causes. It represents a systematic intervention in the domain of social governance by new corporate players with huge resources at their disposal. There are now thought to be over , philanthropic trusts in the USA alone and these are growing at an accelerating rate. Perhaps the most famous of these – the Belinda and Bill Gates Foundation – had an investment fund of US $. billion at the end of . It now dispenses more ‘grant aid’ to developing countries than the World Bank (US $. billion in compared to the World Bank Development Grant Facility of just under $ billion). And although this foundation prides itself on its ethical strategy for a social purpose as it dispenses its own resources, its investment fund is run to maximise ‘alpha’ like the objective of any other hedge fund, and where ethical considerations are deliberately ignored. This does not sound particularly socially responsible. Other foundations are run differently, of course, but should we feel comfortable with what are essentially private bodies making decisions about what are social purposes which are essentially dictated by the personal whims and proclivities of individual corporate philanthropists?
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A final point to note is the effectiveness of these new kinds of governmental activity. In an extensive study of the consequences of outsourcing in the United Kingdom, for instance – the practice of devolving the provision of health and social services to private contracting companies – the authors conclude that not only is this ‘anti-democratic’ but also provides poor value for money (Bowman et al. ). Rather it has produced very large conglomerate service companies – operating on an international scale (White ). The dominant companies here are GS (with dual Danish and UK heritage – now the largest security firm in the world), Serco (of British and US origin), Atos (a French-based multinational IT provider), and Capita (UK based). These companies are now so deeply embedded in the provision of public services that they have become ‘too big to fail’ (rather like their banking counterparts). The public sector has lost the capacity (both financial and operational) to manage this kind of activity. Despite periodic scandals and lapses in the fulfilment of duties of care and responsibility, nothing is done to structurally remedy the situation. This is all part of a huge franchised state and corporate welfare dependency – companies have become accustomed to relying on the public sector for subsidies and kick-backs (very much in evidence since the – financial crash) and are now vociferous demanders of bail-out funds and financial support when they get into difficulties (e.g. in terms of governments taking on company pension fund liabilities as part of the leveraging for restructuring programs – exemplified by Tata Steel and BHS in the United Kingdom in – and many other examples could be provided). Quite where this leaves the question of corporate social responsibility is clearly open for discussion. The CSR agenda has elicited a mixed response: some companies taking this very seriously, others rhetorically committed but actually far from committed operationally, and many (perhaps the majority) oblivious to its overtures (Thompson : –). As the foregoing analysis demonstrated there is a presumption for limited liability companies that exclusive shareholder interests will dominate, with profit maximisation paramount and shareholder value extraction the central objective. The formidable obstacles to reform that this ideological package presents remain, and indeed have been reinforced since the – crash (Lazonick ; Driver and Thompson ). So, whilst the notion of a wider corporate citizenship emerged in the very early part of the s it failed to gain much traction as companies came under renewed pressure with the ever present prospect of takeovers and mergers in a period of heightened austerity and low global growth.
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Can Corporations Be Held ‘Responsible’?
.
Internal Governance and External Constitutionalisation
It is in respect to corporate governance that something might be done to address these issues. Shares in companies typically give shareholders limited ‘internal’ political rights, in particular the (usually) exclusive collective right to elect the members of the corporation’s board of directors, and replace them under certain circumstances. The exact scope of shareholders’ political rights differs substantially from jurisdiction to jurisdiction and from corporation to corporation. Within this structure corporate officers like the Chief Executive Officer or the Chief Financial Officer and other employees are agents of the corporation. Formally they are not the direct agents of the shareholders and are under no strict legal obligation to obey the directives of shareholders. They must work in the interests of the company (maintain it as a ‘going concern’, ‘keep the capital intact’, etc.). This provides some leeway for company boards to pursue a wider agenda – which might include CSR-type objectives. It is thus possible to exploit this formal quasi-autonomy of governing boards – and the ‘schizophrenic’ character of the corporate form more generally as discussed – to inject some wider objectives for companies to pursue. But, as also mentioned, the ideology of shareholder primacy inhibits this and it has proved formidably difficult to install such objectives in the face of a generally hostile business and political environment. Within the conventional wisdom, it is the extension of corporate governance to additional stakeholders that represents the trust of the discussion for reform in Anglo–American business environments. Such ‘stakeholder democracy’ is viewed as a way forward despite the political current running against this. Indeed, in those business environments that have historically proved the most receptive to a stakeholder view point (Germany, in particular, but also the Scandinavian countries) there have been growing pressures to adopt a more shareholder-friendly approach (e.g. Cioffi ). It is important to recognise, however – and indeed to reiterate – that companies are creatures of the law, and company law can be changed. As has been discussed in the introduction to this volume, formalised law is the outcome of negotiations and can be seen as the currently dominant and institutionalised compromise over ideas and values of how things ought to be. That the modern corporation is a political animal and a construct of a political process implies that there is always some room for manoeuvre. It is not as though the current configurative corporate order has proved particularly successful in generating growth or paying close attention to
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environmental issues and working conditions. Profitability has returned since the downturn of – but companies are sitting on their huge cash reserves and refraining from investing in a climate of major economic uncertainty, austerity, and lack of global aggregate demand. Under these circumstances public pressure for corporate reform could easily emerge, reversing the neo-liberal trend for exclusive market-led solutions and greater autonomy for companies to maximise their profits, as the clamour for a more stakeholder solution is reinvigorated. If this scenario were to unfold, discussions about the political nature of companies as agents of social governance could be ignited afresh.
.
Internal Complications
One great difficulty faced by those seeking any new corporate settlement and solution along stakeholder lines is that globalisation has uncoupled the company from its traditional national base and created complex transnational company structures that further inhibit any possible governance structure fit for social purposes and which seriously takes responsibility for deeds done in the company’s name (Thompson a). Nowhere is this clearer than in the case of the taxation of MNCs. We hear almost weekly of events where another MNC seems to be avoiding taxation (such as General Electric, Starbucks, Amazon, Google) by shifting its operational activity around so as to limit its overall liability, sometimes between several ‘tax havens’. The fact that a lot of this is perfectly legal is noteworthy in its own terms as this directs us to the politics inherent in responsibility, and thus, to the need for examining the discretionary and dialogical nature of governance (see introduction to this volume). Tax avoidance and tax evasion should be treated in parallel. These are aided by the typical organisational form of the contemporary MNC – a conglomerate with many subsidiaries and affiliates incorporated in multiple jurisdictions, so one jurisdiction can be played off against the other in order to minimise corporate tax overall. One response is to reiterate a point made earlier: to argue for unitary taxation across the company as a whole by emphasising it as ultimately a single entity, subject to the tax regime of its main place of incorporation (see Murphy ; Picciotto ). How this has gained traction amongst the international regulatory bodies is discussed in a moment. But we need to think imaginatively about the way MNC internal governance might be reconfigured to meet the challenges of a stakeholder democracy and at least propose in outline how this might be
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Can Corporations Be Held ‘Responsible’?
operationalised (see the essays in Driver and Thompson ). How could a stakeholder governance structure for MNCs that is more accountable and takes responsibility for its actions be practically organised and implemented? Elsewhere this issue has been addressed in more detail, though still in a preliminary manner (Thompson : chapter ). The main problem is exemplified by the case of treating something like the environment or the unemployed as a stakeholder (on the former, see chapter by Lang and Haflidadottir in this volume). How could these be constituted into viable and convincing ‘constituencies’, a community of responsibility, able to be involved in any direct decision-making activity? And these examples, whilst extreme ones perhaps, are illustrative of the wider difficulty of constituting all stakeholders as decision-making entities for MNCs as the international bases of their activities spread. The normal language employed in these situations would be to think of this precisely as a problem of the representation of an interest. But the difficulty is clear in the case of the environment. How could this be constituted as an interest? A possible way around this is to abandon the language and practice of both representation and interest altogether. Instead, it is a former language of politics that is invoked here: that of championing and stewardship. Any reformed decision-making arena within the firm needs to be thought of as an ‘arena of stewardship or championing’ rather than of representation. However champions were elected or appointed, they would simply act as ‘decision makers’ not as representatives of an interest. They would be there to champion a cause, nurture it and act as a steward of that cause through the corporate decision-making and implementation processes. Clearly, this approach raises all sorts of difficulties of its own, not least as to the mechanism for how such champions would be appointed or how they would be made accountable. One way forward would be to strengthen the non-executive directorship role via this route. As it stands, most existing non-executive directors are appointed very much through the old-boy network. They are already known to the firm, or are in its immediate network of contacts. But they lack a clear alternative mandate as a result, which is why there has been such an interest in revamping their role in the rather restrictive corporate responsibility reform so far enacted. The suggestion here would be much more radical, and would strengthen the role of the non-executive directorship by making it the job of such directors to champion the cause of the unemployed, the environment, the community, the employees, the customer, even the shareholder. And this
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would put these various considerations at the very heart of the organisational decision-making processes. But from where would such champions be found and how would they be appointed? Here we might think of the formation of a pool of such persons from which could be drawn suitable individuals to serve on different company boards or senates, or who were ‘elected’ to do so. But by whom? Here it is suggested that already existing global governance organisation, national bodies and governments, NGOs, trade unions, trade and professional association, pressure groups, and even other companies in completely different sectors, etc., that already address these separate issues constitute themselves into ‘quasi-constituencies’ around their existing concerns and provide lists of such acceptable personnel as potential candidates. They could then either be elected or appointed as suits the purpose, but operating in an open and transparent manner. The champions produced by such a process would then have to ‘report back’ to such bodies on their stewardship: their accountability would be addressed to these new ‘civicassociations’ as these might be termed (Hirst ). In a sense, then, what is being promoted is a form of ‘indirect democracy’ where the legitimacy of the process relies upon the legitimacy of the organisations that support it and feed personnel into it. And in this schema the role of trade unions would be essential. Although ‘multi-stakeholder’ initiatives are often paraded in this context, even NGOs have been reluctant to support an active and explicit role for worker organisations in corporate governance (Riisgaard ). Any private standard setting process, for instance, has tended to envision trade unions as passive objects that need to be taken into consideration, consulted, and managed but not as active contributors to regulatory practices with positive capacities of their own. Participation and empowerment is needed instead of patronisation and marginalisation. However, what about the concept of global corporate citizenship itself? Clearly, understood in its usual sense, this is something of an ambiguous and miss-matched term. At best, it is an elaborate claim only, and political claims of this kind should be treated cautiously. If an understanding of citizenship relates to a definite polity, where members of that polity are recognised as such and have certain legal rights and responsibilities as a result, this does not describe the current characteristics of the international corporate system. A civil society of citizenship is one constituted by a nation state – one recognised by other states and by international law – where the state proclaims the civil society over which it governs but does not subsume, and citizens are legally members of that polity. It is not
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Can Corporations Be Held ‘Responsible’?
simply a voluntary association of like-minded participants. What exactly is the constituted polity of which companies are citizens? Or, to refer to the book’s framework, how do such communities of responsibility, in which the meaning of CSR is negotiated through interaction, form and how can companies be socialised into them? Where there is no such community, there should be no pretence that there is. But perhaps we could call this an ‘emergent quasi-citizenship’? In this softer understanding of citizenship, it is seen as simply involving an active engagement in public affairs or in a public sphere (so called actscitizenship – Isin and Nielsen ). But what is actually going on in terms of GCC should not be abandoned, of course. A good deal of this is to be welcomed. It is rather that a better term needs to be forged to describe it. To describe it as ‘citizenship’ is perhaps too much and too wrong of a claim (Thompson b: –).
. Constitutionalising the Global Corporate Landscape Issues around shareholder/stakeholder democracy and corporate governance are really issues associated with what might be termed the ‘internal constitutions’ of companies. They address how the company is to be ‘governed’: setting out the rules and regulations required by company law and regulatory bodies like stock exchanges, takeover and merger panels, and as voluntarily adopted by companies themselves through their articles of association, reporting practices, and so on (compare the chapter by Favotto and Kollman in this volume). As a consequence, these mechanisms also provide the means by which responsibility and accountability of companies are established. The corporate governance reform movement is, of course, far from satisfied with this package of governance measures and wants to widen the domain of responsibilisation to include additional stakeholders. Casting the discussion into one of the ‘constitutionalisation’ of corporate bodies taps into a more general trend for the adoption of this terminology in a widening range of contexts (Thompson , b). And this raises another aspect of this trend which might be termed the ‘external constitutionalisation’ of companies and the corporate world more generally. Company law and its reform is a configurative element in this process, but it also involves a vast range of legal enactments, regulatory mechanisms, and governance initiatives operating on a global scale, that are progressively formalising the overall framework of global governance.
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Returning to the example of corporate taxation demonstrates this constitutionalisation process in action as moves towards Single Unitary Taxation on an international scale have gained momentum from within the organisations of global governance. This is intended to ‘force’ MNCs to take full responsibility for their tax obligations, sometimes by direct legislative moves, sometimes in terms of voluntary codes enforced through international treaties. The international tax treatment of companies has a long history that originally arose from bilateral Tax Treaties between countries. But increasingly these have been superseded by multilateral initiatives, though there remain important single country approaches, e.g. the US Foreign Account Tax Compliance Act. The USA is powerful enough to act unilaterally and with some effect. Elsewhere countries have joined together. A key moment was when the European Commission published a proposal for a unitary system known as Common Consolidated Corporate Tax Base (CCCTB) in . This would create a single set of rules for how EU corporations calculate their EU taxes and provide the ability to consolidate EU corporate taxes. But it is restricted to parts of the MNC groups operating within in the EU only – so it is limited – but was the first international proposal for a unitary tax system. Perhaps a more ambitious initiative has come from the OECD. In , it launched a proposal for a country-by-country reporting mechanism and a form of unitary taxation to be implemented across all the OECD member states (known as the Base Erosion and Profit Sharing project, OECD ). Its implementation package consists of model legislation requiring the ultimate parent entity of an MNC group to file the country-by-country report in its main jurisdiction of residence. The initiative has gained agreement from the member fiscal authorities and should eventually be rendered into domestic legislative form. All these formal mechanisms of compliance indicate to the growing ‘constitutionalisation’ of the global corporate sphere, in this case with respect to corporate taxation but which is a much wider trend within the international system (Thompson ). It marks a shift away from moral voluntarism towards a quasi-global administrative structure forged from a negotiated compromise that is increasingly installing legally binding obligations at the participant state level on affected corporate actors. This is a new phase in global governance, marking the re-entry of explicit intergovernmental politics into deliberations over corporate responsibilities. Whether this is a good or a bad thing – given the lack of an explicit ‘global polity’ in reference to which this constitutionalising process can be legitimised – remains an open question.
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Can Corporations Be Held ‘Responsible’?
. Conclusion This chapter has presented an analysis and set of arguments as to how companies are constituted as responsible bodies and whether there are reforms that could enhance the efficiency of such responsibility, in terms of accountability and transparency. The importance of the legal formation of companies was stressed because it provides the framework for considering the existing mechanisms of responsibilisation and the context for their reform. But because the corporate form is not a moral ‘person’ in any meaningful sense (contrary to Erskine in this volume), the attribution of intentionality, agency, and responsibility to the corporation as a formal organisation is fundamentally distinct from the agency and responsibility exhibited by or attributed to the individuals that constitute that organisation. If we accept that it is problematical to attribute personhood – let alone moral personhood – to corporations, the rationale for any enhanced CSR agenda has to be found from somewhere else. So rather than appealing to ethical notions of corporate moral agency, the objectives of CSR should explicitly be understood as a political rather than a normative or ethical goal (see introduction as well as Lang and Haflidadottir in this volume). In the case of CSR, I contend that it is corporate governance that comes to the fore. And this emphasises a more democratic and inclusive notion of the firm. But such a move can only be achieved through political struggle and not through ethical appeals to businessmen to become better and more moral persons. The suggestion brought forward here underlines the assessment provided in the introduction that governance is negotiated; it is the struggle over ideas, preferences, and values, that through interaction result in the formation of policy norms with a temporary validity. At best, directing corporations towards greater moral agency can only be part of such a political project. What is then needed are changes to the structure of corporate governance notably by providing rules that are embodied in law. This ‘constitutional view’ of the corporate world implies two things: first, it suggests internal constitutional changes that introduce a wider range of stakeholders into decisionmaking structures. Second, it involves external constitutional changes that introduce industry-wide, externally enforced codes of conduct, setting explicit limits to the organisation’s operations on the basis of legally instituted and enforced social goals. The company form must be newly reinvigorated as a ‘social institution’ that fulfils a public purpose as well as existing to make a profit. The ‘license to operate’ should be considered a social privilege rather than simply a private right.
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Conclusion
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Responsibility and Virtue Ethics How to Tackle Ethical Dilemmas in World Politics? Hannes Hansen-Magnusson and Antje Vetterlein
This book set out to investigate the recent prominence of responsibility in several governance areas, specifically in the fields of security, the environment, and business. Here, responsibility has been translated into policy, raising the question to better understand the rise of this concept and its actual realisation in policy norms that inform world politics in the twentyfirst century. While related concepts such as accountability or legitimacy have received considerable scholarly attention, the concept of responsibility is predominantly discussed on the policy level in relation to these specific areas. In contrast, we have argued to address responsibility as a theoretical concept in its own right. Two main questions guided our endeavour to understand the rise of responsibility better; first, where does this current surge in referring to responsibility come from, and secondly, what does it mean, theoretically and practically. In order to do so, the book started out by suggesting a broader understanding of responsibility going beyond accountability and embracing its normative and relational nature. Adopting this notion of responsibility, in turn, had consequences for the conceptual framework proposed to all contributors to this book. We outlined a practice-based approach to study processes of negotiating responsibility as a policy norm in communities of responsibility. All chapters in this book highlighted the gradual formalisation of responsibility in guidelines, treaties, and law. Responsibility has assumed a key role in reconceptualising state-citizen relations and governance approaches, which all contributors investigated in the fields of security, business, and environment. Changes in governance approaches were possible eventually, following a change in the discursive context as a result of decades of negotiations at conferences, summits, and initiatives of statesmen and women, especially the Stockholm Conference, reports by Willy Brandt and Olof Palme, but most importantly in the wake of the Brundtland Report. It is important to bear in mind that this was not an orchestrated process: the analyses in the chapters pointed to numerous
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- localities in which communities of responsibility developed the concept as a compromise, to a considerable extent with the inclusion of non-state stakeholders. States from the Global North and the South managed to agree on a differentiated approach to environmental governance that would follow principles of distributional justice; in the field of security, people’s well-being became recognised as a potential collective responsibility of the international community; businesses have gained a seat at the table of international politics following the negotiation of the Guiding Principles. In all of these aspects, human rights served as a central point of reference, especially to provide argumentative clout regarding particular entitlements, such as aspects to clean water, fair working conditions, or food. In sum, these developments have not just added to the legal but also moral responsibility of state and non-state actors in global politics. Where do we go from here? Important questions remain subject to debate and in search of an answer: who is responsible for causing climate change and who should take remedial action? Who takes responsibility for ‘saving strangers’ (Wheeler ) in times of crisis – neighbouring countries, or those whose military capacity might enable them to form ‘coalitions of the willing’ as they have a particular moral responsibility to engage? (Erskine, Chapter in this volume). And do state and non-state actors with particular capacity hold ‘special responsibilities’ (Bukovansky et al. ) to manage global affairs in given governance fields? While the volume never claimed to provide ultimate answers to these questions, we would like to use this final chapter to advance a strong plea to introduce responsibility as a concept in IR’s theoretical toolbox. Ethical considerations are at the heart of questions about responsibility and highlight the moral entanglement of the actors involved. We argue that IR scholarship should embrace responsibility as a concept that can act as a bridge that links politics, ethics, and law, not least because the study of values has been gradually marginalised in International Relations scholarship through a focus on positivist methodology (Hamati-Ataya : ). By seeking to expand the tool-box of IR scholarship, and by highlighting the difference between accountability and responsibility (see introduction), we also make a strong argument for inviting ethics back into the study of international affairs. After all, we are often confronted with ethical dilemma situations, characterised by the lack of the ‘right’ answer, that is situations in which – no matter what decision is taken by a responsible actor – there is no right or wrong as such. Instead of attributing accountability, the call for responsibility is not only a softer tool to deal with such dilemmas but it is also more appealing as it calls on the morality
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Responsibility and Virtue Ethics: Tackle Ethical Dilemmas
of each actor. Responsibility is situated in terms of specific issues or problems, which means it is a category in practice and not in the abstract. In other words, it is the enactment of rules underpinned by moral values. This book builds on the excellent works of scholars in international political theory or global ethics (see for instance Vincent ; Dunne and Wheeler ; Jackson ; Donnelly ), but takes this recently revived scholarship one step further. Instead of suggesting some general ethical rules or deriving conditions for responsible action that should be executed we suggest investigating responsibility by studying it in situ. We argue that it is of utmost importance not to refrain from ethical questions in international politics by focusing on regulations and the ‘right’ (or ‘wrong’ for that matter) action which would close down negotiations and discursive space for ethical arguments. A key aspect in this context has recently been described as ‘virtue ethics’ (Ainley ). As Kirsten Ainley argues: [Virtue ethics] enables us to talk about human lives with a vocabulary that extends beyond ‘right’ and ‘wrong’. Using ‘thick concepts’ to guide action, such as what counts as just or unjust, loving or cruel, kind or mean, wise or foolish, and so on, can significantly improve the quality of our ethical understanding within and between cultures or traditions. (Ainley : , with reference to Williams : –)
We advocate opening up such debates and address, study, and discuss them to enable a dialogue and space where decisions are negotiated and political opinions are formed. It is these normative spaces that scholars need to engage with further. The scholarship on this topic is still scattered. But it signifies a growing attempt to reinvigorate normative ethical theories that focus on virtues of mind and character with an attempt to integrate them into international studies. Virtue ethics grounds itself on Aristotle’s work which is based on three main concepts: virtues, flourishing, and practical wisdom (ibid.). Virtue or excellence can be achieved by performing repeated virtuous acts. Flourishing, the aim of practical philosophy, signifies the highest human good, happiness, and also group welfare. The Aristotelian understanding of practical wisdom or knowledge concerns the ‘politics of phronesis’. Phronesis describes action-oriented practical knowledge, including a dimension of ethics and prudence (Flyvbjerg : –; Aristotle : b; Brown : ; Michel ). That is to say, that phronesis refers not only to a functional but also an inherently normative understanding of knowledge, which makes it both latent background capacities
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- as well as the resources for world-making in interactive practices (Sewell : ; Bevir and Rhodes : ). With its weight on the coupling of ethics and knowledge, a virtue ethics approach strikes a chord with the methodological emphasis on communities and on norms-as-practice that was applied in this volume. Scholars engaged in the growing ‘virtue ethics’ literature argue that a reliance on universally valid norms as benchmarks for the evaluation and legal judgement of responsibility is as unhelpful as a reliance on arguments that emphasise particular consequences of action (Frost ; Gaskarth : –; Hamati-Ataya ; Hoover ). Within the field of foreign policy, Jamie Gaskarth argues that social pressures and contextual constraints matter, yet that individuals in powerful positions in ministries or government possess sufficient wriggle room to impose their own interpretation of affairs and shape policies accordingly (Gaskarth : ). He continues by pointing out that foreign policymaking occurs in particular ‘ethical spaces[s]’ marked by justifications, the analysis of which produces an understanding of ‘ethics of policymaking in practice’ (ibid.: , emphasis in original). While Gaskarth is particularly interested in decision makers’ ‘individual own moral psychology’ (ibid.: ), Mervin Frost emphasises the ‘ethical forms of practices within which both individuals and multi-person actors are constituted as actors of certain kinds’ (Frost : ). His account is echoed by Joseph Hoover, who contends that a focus on legal accountability obscures the social practices through which responsibility is assigned, which is a political process, thereby normalising power relations and hierarchies (Hoover : ). In his view, analyses should focus on the context conditions that enable particular agency in the first place (ibid.: ). Richard Beardsworth distinguishes political and moral responsibility, to argue that the choice between action and inaction is not just a moral justification of one’s responsibilities and ethics but actually a political practice (Beardsworth : ). While there are certainly differences regarding methodology between authors in this field, the broad underlying consensus holds that the study of ethics should serve a broader critical and emancipatory agenda of knowledge creation with a view to enable political interventions (Hamati-Ataya : ). As a first step towards this end, the virtue ethics approach invites us to consider how practices as well as the relations to which they give rise are intricately imbued with ethics. In this regard, the study of ‘common but differentiated responsibility’ highlights more than the expansion of a particular norm. As we can conclude from the chapters on environmental
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Responsibility and Virtue Ethics: Tackle Ethical Dilemmas
responsibility, attributing remedial responsibility for climate change has been a decade-long process across multiple fora and that included a range of actors. Yet, this observation is more than a factual statement. After all, in the course of responsibilising environmental governance, interlocutors also raised questions about global hierarchies among states and differentiated agency. They directly put ethics into practice because they affect the core questions of politics, namely who gets what, when, and how. Similarly, this plurality of agency is also echoed in the field of security, in which inaction in light of potential coalitions of the willing encourages us to think about political responsibility. Inaction is not simply an option that states choose, but rather an ethical practice that is contingent upon ministers or parliamentarians. In turn, it gives rise to a particular constellation and distribution of responsibility in global politics, against which others – such as civil society – may judge practices. Finally, in the field of business, CEOs and other board members are in a prime position to influence the course of a company. Yet they operate in a context of changing normativity, which the empirical studies in this volume brought to the fore. In each of the fields, decisions about (in)action serve to place an actor in a particular relation to others in the field. Not only are actors’ practices intrinsically bound up with ethics, they also hold consequences for the normative principles along which responsibility works. A virtue ethics approach ultimately invites us to consider how parts and whole are connected on the basis of the ‘thick concepts’ that Ainley foregrounds, while underscoring that the relations between actors can also be assessed in normative terms. There is a broader, normative programme underlying this approach, in that it gives rise to holistic accounts of people’s lives rather than imposing ex ante judgements about right or wrong (Ainley ; MacIntyre ). Action requires judgements, which are based on ethics, not the automatic following of rules and legal prescriptions. As MacIntyre explains with an emphasis on the importance of context: The very same action which would in one situation be liberality could in another be prodigality and in a third meanness. Hence judgment has an indispensable role in the life of the virtuous man (sic) which it does not and could not have in, for example, the life of the merely law-abiding or ruleabiding man. (MacIntyre : )
Future research following those arguments of virtue ethics would offer alternative and original ways to tackle the ethical dilemmas we face in world politics today, for instance regarding North-South relations; in
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- conjunction with the proliferation of new, non-Western governance structures around the BASIC states; or concerning global commons, such as oceans, the atmosphere, outer space, as well as the human genome. While this list is not exhaustive, the volume has shown that an active engagement with ethical questions within world politics is inevitable in order to approach the global challenges of our time.
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Index
Note: Locators with a ‘t’ refer to tables. accountability environmental concerns and , multinational corporations and –, –, – responsibility and –, –, t, , – state sovereignty and agency see moral agency; multinational corporations, personhood and liability; political responsibility, concept of Ainley, K. , America’s Pledge Annan, Kofi (UN Secretary-General) on corporate social responsibility – on sovereignty , , , –, – anti-slavery movement anti-personnel mines arguments for prohibition of – imposing a ban on use of – and non-state armed groups – proponents for use of –, – and responsibility , – Arendt, H. , –, , , Aristotle Association of animal protection societies of the German Empire (Verband der Tierschutzvereine des Deutschen Reiches) , – Atapattu, S. , Auld, G. authority coalitions of the willing and – sovereignty, intervention and just –, transfer or delegation of –, – see also stewardship and championship Bali Action Plan bargaining model of negotiation – Bartenstein, K. Bartley, T.
Base Erosion and Profit Sharing project Basel Convention Beardsworth, R. J. Belinda and Bill Gates Foundation Bellamy, A. J. , Bhopal, India Bird, F. birds, migratory , Birnie, P. , Blair, Tony (UK prime minister) , , Bloomberg, Michael (New York mayor) Boutros-Ghali, Boutros (UN Secretary-General) , Boyle, A. , Brandt, Willy (German chancellor) , Brazil , Brown, Jerry (California governor) Brundtland Report () –, –, , Bubble Act () Buzan, B. Canada environmental protection , , responsibility to protect –, – Cane, P. Caney, S. causal/outcome responsibility –, , CBDR see common but differentiated responsibility (CBDR) CCCTB (Common Consolidated Corporate Tax Base) CCW (Convention on Certain Conventional Weapons) , , CERES (Coalition for Environmentally Friendly Economies) , championship and stewardship –, – child labour
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Index China anti-personnel mines , , environmental protection , – sovereignty Christiansen, H. F. Circumpolar Conference , , CITES (Convention on International Trade in Endangered Species, ) citizenship, corporate see corporate citizenship civilians protection of , , , and use of anti-personnel mines – climate change common but differentiated responsibility and , , –, , , – human rights and , –, – role of non-party stakeholders – role of sub-state actors – role of UNFCCC Secretariat –, Climate Change Conference, Bali () , Clinton, Bill (USA president) , , CLRTAP (Convention on Long-Range Transboundary Air Pollution, ) Coalition for Environmentally Responsible Economies (CERES) , coalitions of the willing definition , – joint purposive action –, – as moral agents –, –, – responsibility and , –, – subcontracted and vigilante –, – Code of Conduct on Transnational Corporations () , Coleman, K. P. , , , collective responsibility, concept of – Commission on Global Governance – common but differentiated responsibility (CBDR) adoption at Rio Summit , – common responsibility – and concept of responsibility , – differentiated responsibility and capability –, – in international law – liability and – practical implementation –, – Common Consolidated Corporate Tax Base (CCCTB) communities, defined communities of practice , see also informal associations communities of responsibility , – compensation , , –,
compliance common but differentiated responsibility and , , – corporate social responsibility and , t, –t, –t, with mine ban treaty , – Consultative Commission for the International Protection of Nature – contextual norms –, Convention against Genocide () Convention on Certain Conventional Weapons (CCW) , , Convention for the High Seas Fisheries of the North Pacific Ocean () Convention on International Trade in Endangered Species (CITES, ) Convention on the Law of the Sea (UNCLOS) Convention on Long-Range Transboundary Air Pollution (CLRTAP, ) Copenhagen Accord corporate citizenship and corporate social responsibility –, –, , globalisation of –, – meaning of , –, – corporate giving –, t, –t, , –t, –, corporate social responsibility (CSR) conditions giving rise to –, – corporate engagement with –, t, –t, –t determining the meaning of –, –, – emergence as global policy norm –, – and human rights institutionalisation of –, –, – research on –, – corporations see multinational companies (MNCs) corrective justice , – corruption and corporate responsibility t, –t, , –t CSR see corporate social responsibility (CSR) Cullet, P. , , Deng, Francis (UN Special Rapporteur on the Human Rights of Internally Displaced Persons) , , – Deputy High Commissioner for Human Rights (UN) Dingwerth, K. distributive justice , – Dodd-Frank Act ()
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Drummond, Eric (League of Nations SecretaryGeneral) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas duty of care , , , –, , – Environmental Management Systems (EMS) , Environmental Programme, UN (UNEP) , environmental responsibility/stewardship acceptance and contestation of –, , – developments since World War II – different framings of – emergence of concept of –, – see also common but differentiated responsibility (CBDR); corporate social responsibility environmental, social, governance (ESG) Equator Principles Erskine, T. , , , ethic of responsibility Ethical Trading Initiative (ETI, ) ethics of care and corporate responsibility , –, , , –, see also common but differentiated responsibility European Union/European Commission , , –, Evans, Gareth (co-chair of ICISS) , , , –, – Exxon Valdez oil spill Fair Labour Association (FLA) Fiji Forest Stewardship Council (FSC) – forests and forestry , Framework Convention on Climate Change, UN (UNFCCC) , , , – see also Kyoto Protocol French, D. Frost, M. fundamental norms , –, , G countries , , Gaskarth, J. GATT (Global Agreement on Trade and Tariffs) Geneva Call – Germany corporate engagement with CSR in –, –t, –, corporate social responsibility in ,
Global Agreement on Trade and Tariffs (GATT) Global Compact, UN , t, , –t, –t Global Reporting Initiative (GRI) , t, , –t, –t, governance common but differentiated responsibility and – multinational companies and –, –, , –, , – sovereignty and , , sustainable development in environmental , Guiding Principles on Business and Human Rights (UNGP) , , , , –, t, –t, –t Hague Convention , Hart, H. L. A. Held, V. – High-Level Panel on Threats, Challenges and Change (HLP) – Hoffman, M. Honoré, T. Hoover, J. human rights corporate responsibility and , , –, –t, , –t, , – environmental responsibility and , –, , – responsibility and – responsibility to protect and , –, –, –, – Human Rights Council, UN , –, humanitarian intervention coalitions of the willing and – instances of – sovereignty, responsibility to protect and , –, , –, , ICBL (International Campaign to Ban Landmines) , ICISS (International Commission on Intervention and State Sovereignty) , , –, –, ICRC (International Committee of the Red Cross) , –, , –, – IDPs (internally displaced persons) IFC (International Finance Corporation) ILO (International Labour Organization) –, t, –t, –t India anti-personnel mines , , , climate change – informal associations , , –,
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Index Inter-American Commission on Human Rights , , intergovernmental organisations (IOs) in coalitions of the willing , , , –, corporate engagement with t, –t, , –t, – promoting corporate social responsibility , , – internally displaced persons (IDPs) International Campaign to Ban Landmines (ICBL) , International Commission on Intervention and State Sovereignty (ICISS) , , –, –, International Committee of the Red Cross (ICRC) , –, , –, – international community/society acceptance of environmental responsibility –, –, –, , concept of , membership of , , – political responsibility and , , security, responsibility to protect and –, –, , sovereignty, intervention and –, , –, –, – see also anti-personnel mines; UN Security Council International Congress for the Protection of Nature International Congress of Zoology – International Finance Corporation (IFC) international humanitarian law –, International Labour Organization (ILO) –, t, –t, –t international law common but differentiated responsibility and –, –, , , – marginalisation of actors within –, responsibility and , responsibility to protect and warfare and , International Office for the Protection of Nature (IOPN) International Organization for Standardization (ISO) –, , , t, –t, –t international society see international community/society International Tribunal for the Law of the Sea (ITLOS) International Union for Conservation of Nature (IUCN) –, International Whaling Commission (IWC) intervention see humanitarian intervention Inuit ,
IOPN (International Office for the Protection of Nature) IOs see intergovernmental organisations Iraq – ISO (International Organization for Standardization) –, , , t, –t, –t ITLOS (International Tribunal for the Law of the Sea) IUCN (International Union for Conservation of Nature) –, IWC (International Whaling Commission) joint purposive action , , –, – justice and common but differentiated responsibility –, – Karp, D. J. Kaspersen, A. T. Kosovo Kouchner, Bernard (French foreign minister) Kyoto Protocol –, , labour rights , –, League of Nations – legitimacy and corporate engagement with social responsibility –, – of non-state armed groups – in warfare , – see also sovereignty Leira, H. liability common but differentiated responsibility and –, –, , – multinational corporations and , , , –, , – Libya , , , Linklater, A. Luck, Edward C. (Special Advisor on RP) MacIntyre, A. Magraw, D. B. Malaysia – Man and Nature () marine protection , – Marsh, G.P. May, L. MBT (Mine Ban Treaty, ) , , –, Mickelson, K. MIGA (Multilateral Investment Guarantee Agency) Miller, D. , Mine Ban Treaty () , , –, MNCs see multinational companies (MNCs)
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Montreal Protocol , –, moral agents/agency coalitions of the willing as , –, – requirements for –, – moral responsibility –, , , see also coalitions of the willing; multinational companies, personhood and liability; political responsibility Muir, John (Sierra Club founder) Multilateral Investment Guarantee Agency (MIGA) multinational companies (MNCs) governance and constitutionalisation , –, –, – historical development – personhood and liability –, –, regulation of – see also corporate citizenship NAM (Non-Aligned Movement) NATO see North Atlantic Treaty Organization NAZCA Netherlands , New International Economic Order (NIEO) – NGOs see non-governmental organizations (NGOs) Nixon, Richard (US president) – Non-Aligned movement (NAM) non-governmental organisations (NGOs) corporate engagement with t, –t, , –t, – focussing on climate change –, , – focussing on corporate responsibility –, –, , , – focussing on environmental concerns , –, , – focussing on security –, , , non-party stakeholders (NPS) , – non-state actors armed groups , –, , – in climate change activism – in coalitions of the willing , , , –, in promoting corporate social responsibility –, – ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ North Atlantic Treaty Organization (NATO) in Libya , , in Yugoslavia and Balkans , NPS (non-party stakeholders) , –
OECD (Organization for Economic Cooperation and Development) , –, Office of the United Nations High Commissioner for Human Rights (OHCHR) , – O’Neill, O. Organization for Economic Cooperation and Development (OECD) , –, Osborn, F. Our Common Future (Brundtland Report, ) –, –, , Our global neighbourhood –, outcome/causal responsibility –, , ozone layer depletion , , –, Palme, Olof, report , Paris Conference/Agreement (COP, ) , –, Park, S. Pattberg, P. Pérez de Cuéllar, Javier (UN Secretary-General) , philanthropy, corporate , , –, –, , phronesis Pogge, T.W.M. policy norms, defined – political responsibility concept of , –, , – demanding human rights as – non-state and sub-state actors and – see also Circumpolar Conference Pollentine, M. , pollution –, , , –, – power of civil society , – environmental responsibility and of multinational companies – responsibility and –, t, – in warfare – see also responsibility to protect, support for and resistance to preservation of nature approach –, , Price, R. protection see responsibility to protect random collections –, –, Redgwell, C. , refugees , Renewing the United Nations System () responsibility accountability and –, –, t, , – agency and – communities of –, –
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Index dimensions of – formalisation of – as policy norm –, virtue ethics approach to – see also human rights Responsibility to Protect () , responsibility to protect (RP) coalitions of the willing and , , – emergence of concept of –, intervention by international community and , , – nature – state sovereignty and , , –, –, –, support for and resistance to , – United Nations and , – Responsible Care , Rio Summit () , , –, – Roosevelt, Theodore (US president) , Royal Society for the Prevention of Cruelty to Animals (RSPCA) – Royal Society for the Protection of Birds (RSPB) , – Ruggie, J.G. Russia , , , , Rwanda – St. Petersburg Declaration () Sarasin, Paul (naturalist) – Sarbanes-Oxley Act () – Sartre, J-P. sea turtles, protection of – security broadening the concept of –, –, human rights and –, – Security Council see UN Security Council shareholders corporate engagement with t, –t, , –t, liability of , – and/or stakeholders , , , –, – Shelton, D. shrimp-turtle case – Sierra Club , – Social Accountability International (SAI) Society for the Protection of Birds (later RSPB) , – Somalia – South Sea Bubble crash () sovereignty challenging the traditional view of state –, –, environmental protection and , , , , ,
humanitarian intervention and –, – as responsibility , , –, –, –, stakeholders corporate engagement with t, , –t, –, –t, definition responsibility and corporate governance –, –, – and/or shareholders , , , –, – Stevenson, Adlai (US ambassador) stewardship and championship –, – Stockholm Conference () Declaration , establishing environmental responsibility , , –, subcontracted coalitions – sustainable development and common but differentiated responsibility , –, –, – origin , , utilitarian conservation and –, Sweden Switzerland ‘Talanoa’ tradition/process taxation and multinational companies , – transnational companies see multinational companies (MNCs) transparency and corporate responsibility t, , –t, –t Trump, Donald (US president) –, Turkey Ukraine Ulfstein, G. UN Conference on Environment and Development (UNCED) see Rio Summit () UN Environmental Programme , UN Global Compact , t, , –t, –t UN Human Rights Council , –, UN Security Council Resolution () , , , , , responsibility to protect –, –, , UNCED see Rio Summit () UNCLOS (Convention on the Law of the Sea) UNEP (Environmental Programme) , UNESCO (United Nations Educational, Scientific and Cultural Organization) –, UNFCCC see Framework Convention on Climate Change, UN (UNFCCC)
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UNGP (Guiding Principles on Business and Human Rights) , , , , –, t, –t, –t United Nations reform – Resolution (XXVI), Development and Environment role and mandate , , –, see also UN Security Council United States of America anti-personnel mines , –, – climate change –, –, , – companies’ engagement with CSR –, –, –t, – environmental protection , –, –, – Foreign Account Tax Compliance Act () military interventions –, , – utilitarian nature conservation approach –, Valdez Principles Verband der Tierschutzvereine des Deutschen Reiches (Association of animal protection societies of the German Empire) , –
Vetterlein, A. vigilante coalitions –, – virtue ethics – Vogt, W. Voluntary Principles on Security and Human Rights (VP, ) , volunteerism, corporate –, –t, –t, –, war regulation of , – see also anti-personnel mines Warner, D. – Weber, M. whaling , workers’ rights , –, World Commission on Environment and Development (Brundtland Report, ) –, –, , World Heritage Convention () world society , , , , World Summit (UN, ) , – World Trade Organization (WTO) –, , Yosemite National Park, USA Young, I. M.
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