Abroad Thoughts from Home



Ian Townsend-Gault (1952-2016)
Former Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada


My Brother's Keeper?
Sovereignty's Missing Moral Imperative and the "Responsibility to Protect"
Ian Townsend-Gault and C.G. Bateman

"Am I my brother's keeper?" According to the Old Testament, this was the defiant reply of Cain when asked by God as to the whereabouts of his brother Abel. Through the centuries, if not millennia, it has been an abiding question for humankind. The world's major religions would give an emphatic "Yes" to it, but this has not necessarily translated into mores or norms guiding their adherents and indeed others. When British Prime Minister Neville Chamberlain professed astonishment that his fellow countrymen were preparing to dig trenches in Hyde Park "in the cause of people of whom we know nothing" - he was referring to the Czechs, who were confronting unmistakable Nazi aggression at the time [1938]. And yet within a year, that same Prime Minister declared war on Germany because of Nazi aggression towards yet another people of whom Britons knew nothing, or next to it - the Poles. This was not, however, a humanitarian exercise on behalf of those peoples so much as respecting treaty provisions which required United Kingdom and France to come to the assistance of Poland were it to be invaded.

More recently, the members of the international community and their citizens have been obliged to confront similar "Brother's keeper" questions with depressing regularity. Protecting South Korea from aggression from the North, supported by Beijing. Countless examples in Africa beginning with the bloody road to independence taken by what was the Belgian Congo, starvation in East Africa, the Nigerian Civil War, East Timor under Indonesian occupation, Rwanda, Kosovo, the aftermath of cyclone Nargis in Burma, and the Arab Spring (which, arguably, seems likely to have a happier outcome than the Prague Spring of 1968). All of these examples, and others, raise the same questions. Is it any business of ours what happens in other countries? If there is no spill-over adversely affecting other states, surely the guarantee of non-interference in matters essentially within the domestic jurisdiction of the state means precisely what it says. That is to say, a state is sovereign within its land territory, meaning that there is no power superior to it there. The adherents to the strict line on this way of thinking would concede that outsiders have every right to wring their hands in despair, or call on the state to reconsider its actions, but further than that they cannot go. And as for military intervention: out of the question. The alternative view is that states which commit egregious human rights violations against their own people have violated the implicit compact between them: protection in return for loyalty. We are suggesting that physical and material intervention engaged against a state in the face of intrastate human rights violations of a systemic and ongoing nature is not only reason for suggesting that the 'Responsibility to Protect' doctrine is worthy of consideration by the international community of states, but that it should be incumbent upon the rest of the international community to expect a cessation of absuses on a prima casu basis and that there needs to be a right enshrined in a convention or other legal instrument that would suspend the sovereign borders of the impugned state and make it incumbent on the international community under the auspices of the United Nations to intervene in whatever way was necessary to arrest the human rights violations being carried out. We here argue that such a concept is central to the conceptual basis of law itself, which itself refers to the ideal of human kind - in groups large or small - that governance of people ought to be fair, transparent, etc., and offer a stabilizing matrix facilitating the complex relations between citizens such that the latter can take ownership of their loyalty to the system because it happens to be in theirs and all others' best interests.

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In This Issue

My Brother's Keeper?
Sovereignty's Missing Moral Imperative and the 'Responsibility to Protect'

Ian Townsend-Gault and C.G. Bateman







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