One of the most important developments in world politics in the last decade has been the spread of the twin ideas that state sovereignty comes with responsibilities – both domestic and international – as well as privileges, and that there exists a global responsibility to protect people threatened by mass atrocity crimes. The 2001 report of the International Commission on Intervention and State Sovereignty entitled The Responsibility to Protect put these ideas into active circulation, and United Nations resolutions in 2005 on the sixtieth anniversary of the establishment of the United Nations gave the idea further substance. More recently, the justification of NATO action in Libya on the strength of Security Council Resolutions 1970 and 1973, which made explicit reference to the principle of the Responsibility to Protect, has put this particular notion at the centre of discussion of some of the most challenging political dilemmas of our times. As international leaders struggle to find ways to deal with mounting political violence in Syria and more recently with the emergence of the self-styled ‘Islamic State in Iraq and Syria’, the idea of the Responsibility to Protect, now increasingly labelled simply R2P, is never far below the surface.

These concrete political developments have helped to generate a substantial scholarly literature concerned with the genesis of the idea of the Responsibility to Protect, and with the way in which it has been refined through multilateral deliberation. Through mainstream as well as dedicated journals such as Global Responsibility to Protect, researchers have sought to explore the ambit of the Responsibility to Protect doctrine, discussing, for example, whether it can properly be applied in circumstances where a population is threatened by the ravages of natural disaster. Nonetheless, in a real sense the doctrine remains under-theorised, or at least only weakly related to existing bodies of theory concerned with the nature and foundations of political and international order. Its implications for ideas about the appropriate scope, strength and legitimacy of the state have received relatively little attention. The aim of this collection is to help to fill this gap.

First, however, it is necessary to set the scene by exploring the context within which the idea of a responsibility to protect took shape. One key element of this context was a critical weakness in the normative framework determining how states should relate to each other and to international organisations.

The development since 2001 of the doctrine of the Responsibility to Protect (R2P) has been one of the most important normative developments in international relations in the last century. At a truly remarkable pace, it has moved from being an idea articulated by the International Commission on Intervention and State Sovereignty to a principle endorsed by leaders of United Nations member states at the World Summit in 2005, and given further substance by its employment to justify protective action for the population of Libya at the time of the overthrow of the Gaddafi regime, although the precise import of this particular case remains open for debate.

Nonetheless, it is but one of a range of norms that have appeared in the last century and a half with a view to offering some kind of protection to people in vulnerable situations. The establishment in 1863 of the International Committee of the Red Cross (ICRC) was one event of fundamental importance in highlighting the need for protection of the vulnerable: the stimulus for the ICRC's establishment was the carnage on the battlefield of Solferino that had been witnessed by Jean-Henry Dunant when by chance he found himself in the vicinity of combat, and which he documented in a famous memoir. The corpus of international humanitarian law, also known as the law of armed conflict, that has developed since then provides critical protections for those in the firing line in armed combat. Another kind of protective regime is that which exists for the benefit of those forced to flight by a well-founded fear of being persecuted. The 1951 Convention Relating to the Status of Refugees is an important source of normative obligation in this respect, but it is only one part of a wider regime augmented by other instruments, and by institutions such as the Office of the United Nations High Commissioner for Refugees.

This chapter is concerned with a particular theoretical problem, namely how parallel but distinct norms can come into conflict with each other. It is easy to assume that norms with a broadly similar humanitarian impetus will prove complementary, but that need not be the case. The reason for this is that norms are implemented in a highly political environment in which considerations of domestic politics may dispose rulers to seek ways of avoiding responsibilities that their predecessors may have voluntarily accepted.

From the time of Aristotle, an enduring theme in political theory has been the desirability of a government of laws, not of men (Aristotle 1976). Taken up by David Hume during the Scottish Enlightenment (Hume 1985), it found its way into the modern concept of constitutionalism, in which the separation of powers and the rule of law stood as bulwarks against the threat to liberty posed by the existence of arbitrary power. But it is not simply in Western circles that such thinking can potentially resonate. A persistent refrain in the post-2001 era in Afghanistan has been disgust at injustice and the abuse of power, and pleas to make faster progress in building a system to constrain such abuse, which we call the rule of law. Yet amid all the challenges that have confronted Afghanistan's transition, this has proved to be perhaps the most troubling. The landscape is replete with actors who engage in hideous abuses with total impunity. This poses the question of how the rule of law can be expected to prevail when the weight of power and politics is so heavy.

My aim in this chapter is to explore some of these complexities in the Afghanistan context. The central point of the chapter is that it is important not to lose sight of the crucial significance of the rule of law as a constraint on the abuse of power.

The twenty-first century seems set to be the century of governance challenges. The speed with which ideas of governance have moved to the centre of political discourse is startling, and serves yet again to remind us of the dynamic interconnections between conceptual innovation and the implementation of new policies by state and non-state actors. At one level, the emergence of governance discourse is a straightforward response to the challenges posed by globalization, where the capacities of the state seem increasingly under threat. But in another sense, the idea of governance draws attention to important limitations of models of democracy based simply on competitive choice between parties offering themselves for election. The focus of governance is rather on diffusion of power and authority, and on the network as a locus of meaningful political decisions. But none of this should be taken as implying that the field of discourse surrounding governance is well illuminated. On the contrary, while it would go too far to describe the concept of governance as essentially-contested, it is the case that diverse usages are in circulation, often with subtle variations in exactly which forms of social activity they demarcate.

My aim in this chapter is to draw out some of these complexities, and to illustrate them with Australian examples. The chapter is divided into six sections. The first sets out a range of concepts that have been used to capture aspects of political power, with governance constituting the latest addition. The second explores the notion of governance in more detail. The third looks at notions of “corporate governance” as applied to commercial and charitable, humanitarian, and voluntary agencies. The fourth examines Australian notions of “good governance” as reflected in official overseas aid programmes, and the fifth draws out some of the implications of the increasingly popular concept of “global governance”. The sixth argues that in Southeast Asia, regional structures are increasingly reflecting the impact of both formal mechanisms of cooperation and informal norms of governance, which in turn help shape the pathways which countries such as Australia and India must tread if wider regional community building is to succeed.

Introduction

From December 2001 to December 2005, Afghanistan underwent a process of political transition. The path to be followed was established at a conference in Bonn from 27 November to 5 December 2001 under the auspices of the United Nations which brought together ‘non-Taliban’ Afghan political actors. The conference led to the signing of an ‘Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions’, which was subsequently endorsed by the UN Security Council in Resolution 1383 (2001). A number of key landmarks on this pathway formed essential elements of the transition. On 22 December 2001, an interim authority took office at a ceremony in Kabul, headed by Hamed Karzai and comprising a chairman, five vice chairmen and twenty-four other members. From 11 to 19 June 2002, a so-called ‘Emergency Loya Jirga’ (Great Assembly) was held to transform the interim authority into a more broadly based transitional administration. In order to equip Afghanistan with a new constitution, a ‘Constitutional Loya Jirga’ was held between 14 December 2003 and 4 January 2004 with 502 members, most of them elected through an indirect but lively process, but some appointed by Karzai, which led to the adoption of the new constitution (Qanun-e Asasi-i Afghanistan). Following this, a presidential election was held on 9 October 2004 which resulted in the election of Karzai as president for a five-year term with 55.4 per cent of the popular vote; and on 18 September 2005, further elections were held for provincial councils and for the Wolesi Jirga, the lower house of a new bicameral Parliament, which met for the first time on 19 December 2005, almost four years to the day since the interim authority had been constituted.