In moral and political philosophy, the relationship between a state and its people is often characterized as a social contract – citizens voluntarily sacrifice individual freedom in exchange for protection from the state. Throughout history, however, states have often failed to uphold the social contract and ensure security for their citizens. In these instances, other states may wish to intervene for humanitarian or other purposes, but may not always have the legal reasons and authorization to do so. The Responsibility to Protect (R2P) doctrine lays out a framework that defines responsibilities and obligations for states and the international community, but its status as a doctrine and its relationship to international law necessitates deeper examination. Although references to the Responsibility to Protect doctrine abound in treaties and customary international law, the lack of conclusive support in treaties and opinion juris in customary international law ultimately hinder the doctrine’s potential status as legally binding international law.
To fully understand the Responsibility to Protect doctrine, the underlying concepts of state sovereignty and human security must first be understood. State sovereignty is not simply “the right to be undisturbed from without,” but also the “‘responsibility’ to perform the tasks expected of an effective government … which includes the obligation of the state to preserve life-sustaining standards for its citizens.” Thus, sovereignty is not a state-centric view that emphasizes the rights of individual entities, but an international-centric view that considers states as “sub-units of the political organisation of mankind.” R2P also hinges on an inherent human right to security, which can be defined as the absence of threats including “genocide, torture, war crimes and crimes against humanity.” This right to human security forms the core of the R2P doctrine, which encompasses three forms of responsibility, as Fiammetta Borgia, assistant professor of international law, explains:
(i) the ‘responsibility to prevent’ gross violations of human rights; (ii) the ‘responsibility to react’, when this type of crimes is perpetrated, through a gradual series of means going from persuasion to military intervention; and (iii) the ‘responsibility to rebuild’, ie responsibility for restoring the damage caused by the military action, ensuring a durable peace, and promoting the rule of law.
All forms of responsibility are fulfilled through the following three R2P pillars. First, to maintain their sovereignty, states must fulfill their governing responsibilities, including the responsibility to protect their people from gross violations of human rights. Second, in line with its international-centric view, R2P stipulates that the international community is responsible for encouraging and assisting states in this regard. Third, if states fail, then the international community must intervene to preserve human security, using force if diplomacy, humanitarian aid, and other nonviolent options are exhausted. In the end, the burden of upholding R2P falls on both individual states and the entire international community.
Because R2P involves the international community, the doctrine is only binding if it constitutes international law. According to Article 38 of the Statute of the International Court of Justice, international law can derive from international treaties, the generally recognized body of law, judicial precedents, scholarly writings, and international customs. Currently, no laws or judicial precedents explicitly refer to R2P. Furthermore, independent scholarly writings do not yield any consensus, since most either enthusiastically sustain or strongly criticize R2P. Other internationally authoritative sources, including UN documents and reports, do not have binding authority. For R2P to be considered international law, then, it would have to be established through treaties or customary law.
In 1945, the United Nations Charter was ratified, laying out an official framework for international cooperation and legal obligations. Article 41 of the Charter is reminiscent of the second pillar of R2P, and stipulates that “the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.” The next article is reminiscent of the third pillar of R2P, and authorizes military action taken by the Security Council when peaceful measures, as described in Article 41, “would be inadequate or have proved to be inadequate … as may be necessary to maintain or restore international peace and security.” Both Article 41 and 42, however, give no specifics for implementation. In addition, while both essentially authorize the second and third pillars of R2P, the wording does not go so far as to make the responsibility to protect an international obligation. Moreover, Article 42 only authorizes the use of force by the fifteen Security Council members. Its application has also deviated significantly in practice, to the extent that the current process whereby the Security Council authorizes the use of force “has no express legal basis in the Charter.”
Given that the foundations for R2P remain unclear in the UN Charter, member states again referenced the R2P doctrine in the World Summit Outcome in 2005, which was signed by 191 member states. In paragraphs 138 and 139, members essentially agreed to the first and second pillars of R2P:
Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity … The international community should, as appropriate, encourage and help States to exercise this responsibility … [and] use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter.
Regarding the third pillar, states further agreed “to take collective action, in a timely and decisive manner, through the Security Council … on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations.” One year later, the United Nations “explicitly introduced for the first time the notion of R2P in the legal framework of the UN” in the Security Council of Resolution 1674, which stressed the need to adopt measures for preventing and resolving conflict. In the Resolution, the Security Council specifically reaffirmed “the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”
However, both the World Summit Outcome and the 2006 Resolution again fell short of specifying the exact implementation of the second and third R2P pillars and what a commitment to R2P would entail. Ultimately, although the references to R2P in the abovementioned treaties may indicate strong support for the doctrine, the uncertainty of language in treaties and the uncertainty of execution in practice “[do] not give rise to the conclusion that this type of military intervention is now admitted under international law.” As international lawyer and professor Jennifer Trahan writes, “It is clear that no such doctrine of ‘humanitarian intervention’ (ie without UN Security Council authorisation) is found expressly within the UN Charter.” Even if a legal basis for R2P can be ascertained, the wording of the World Summit Outcome and UN Charter only provides clearance for the three R2P pillars, not a legal obligation to intervene. As Borgia remarks, “Without such an obligation there would be no difference between humanitarian intervention and R2P, in terms of the real impact of the doctrine, and there would be no need to develop further the R2P concept.”
If R2P has not been established through international treaty law, has it been instituted through customary international law? As in international treaty law, the acceptance of the first pillar of the R2P doctrine in customary international law is noncontroversial. In fact, the 2009 UN Secretary General’s Report, titled “Implementing the responsibility to protect,” indicates that the first pillar “derives both from the nature of State sovereignty and from the pre-existing and continuing legal obligations of States, not just from the relatively recent enunciation and acceptance of the responsibility to protect.” Similarly, Borgia notes that the second pillar is already regularly practiced through various means like
political plans (relating to good governance, human rights and confidence building) economic policies (relating to poverty, inequality and economic opportunity), normative approaches (relating to the rule of law and accountability) and military matters (relating to disarmament, reintegration and sectorial reform), at the national and international level.
Even if the second pillar has yet to be translated into concrete policy, its regular implementation provides convincing evidence for its status as customary international law. Regarding the third pillar of R2P, its existence as customary international law is more debatable, and requires a deeper analysis of what constitutes customary international law.
In the 1969 North Sea Continental Shelf and 1986 Nicaragua v. United States cases, the International Court of Justice (ICJ) developed a two-pronged test for determining customary international law: consistent state practice and opinio juris, or belief in legal obligation. As the Court explained in the North Sea judgment, “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” The Court also clarified that a custom does not require a lengthy amount of time to become consistent state practice – “Even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected.” Nor does evidence of state practice need to be completely perfect, as the Court decided in Nicaragua: “The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule.” Instead, as long as deviations from that rule are “treated as breaches of that rule, not as indications of the recognition of a new rule,” consistent state practice can still be demonstrated.
Through multiple precedents that demonstrated consistent practice and opinio juris, customary international law has traditionally recognized the principle of nonintervention in neutral territory and state territory. In the early nineteenth century during the Caroline affair, U.S. minister Andrew Stevenson accused British forces of violating the “‘sacred’ principle of immunity of neutral territory.” Whereas British authorities “could treat U.S. citizens as enemies if they were captured fighting the British government in British territory,” they attacked a U.S. ship on U.S. territory, thus interfering “with U.S. ‘right and sovereignty.’” Unless an attack fell under “extreme state necessity,” use of force in neutral territory contravened customary international law. In his reply letter, British Foreign Secretary Lord Palmerston implicitly agreed with the principle of neutral territory by only asserting “the necessity and proportionality of the British attack,” in line with Stevenson’s “extreme state necessity requirement. Over a century later, the Nicaragua case debated another breach of nonintervention, this time in state territory. Providing background for deciding whether or not U.S. support of contras in Nicaragua infringed state sovereignty, the International Court of Justice defined the principle of nonintervention as “the right of every sovereign State to conduct its affairs without outside interference,” and cited the principle as “part and parcel of customary international law.” The Court declared that “intervention is wrongful when it uses methods of coercion,” especially methods of coercion that use force, “either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.” Importantly, both the Caroline affair and Nicaragua detailed a self-defense exception to the principle of nonintervention. In another letter during the Caroline affair, U.S. Secretary of State Daniel Webster “admitted that a ‘just right of self-defence attaches always to Nations, as well as to individuals, and is equally necessary for the preservation of both.’” Referring to Webster’s words, Lord Ashburton responded, “Of the great general principle, we seem also to be agreed.” Likewise, the ICJ referred to Article 51 of the United Nations Charter, declaring that “the inherent right (or “droit naturel”) which any State possesses in the event of an armed attack, covers both collective and individual self-defence.”
The third pillar of R2P, however, not only requires forceful intervention, but also requires intervention for reasons (namely, preservation of human security) not included in the self-defense exception. The question remains, then, as to whether or not another exception for humanitarian intervention has since become accepted as customary international law. As Borgia elucidates,
since the R2P doctrine is in conflict with some principles of customary international law – such as sovereign equality among states and non-intervention in their internal affairs … it is essential to demonstrate whether a customary international law, having as its content the R2P doctrine, is emerging or has emerged in international law
Since the Continental Shelf case had determined that a lengthy amount of time is unnecessary to establish state practice, scholars often point to recent examples of forceful intervention for humanitarian resources, including India’s 1971 invasion of East Pakistan (now Bangladesh) that stopped killings by the West Pakistani army, Vietnam’s 1978 invasion of Cambodia that dissolved the Khmer Rouge regime, and Tanzania’s 1979 invasion of Uganda that disbanded the Indi Armin regime. However, during these interventions, state actors did not justify their actions with humanitarian intentions, demonstrating a lack of opinio juris. Similarly, in 1999, North Atlantic Treaty Organization (NATO) members intervened against the Federal Republic of Yugoslavia using missile and air strikes. Even though NATO failed to obtain express authorization from the UN Security Council, it did justify its use of force with its humanitarian intent of protecting Albanians in Kosovo from ethnic cleansing. Afterwards, though, proponents still acknowledged the complete illegality of the intervention, instead defending the use of force based on other legitimate reasons, such as “(i) a purportedly shared understanding among international actors that the action was appropriate; (ii) NATO’s effective and democratic nature; (iii) the consequences of the intervention; and (iv) morality.” Although it may be cited as another practice consistent with R2P, the “illegal but legitimate” Kosovo intervention also fails to demonstrate opinio juris in the binding legality of the third pillar of R2P. To quote Nicaragua, all the interventions cited in favor of R2P are deviations from the rule of nonintervention, but were “treated as breaches of that rule, not as indications of the recognition of a new rule” that would permit humanitarian intervention. As such, “the existence of opinio juris with this content is highly debatable, even if one takes the view that such a rule would be desirable,” according to Borgia. Jennifer Trahan concludes:
Despite such military interventions with humanitarian effects being ‘tolerated’, generally, ‘states declined to embrace “humanitarian intervention” as a new legal basis for using force unilaterally’. Indeed, the argument that humanitarian intervention is accepted in customary international law is somewhat hard to make given that there is little true state practice; in fact, many states deny that such a right exists.
Having examined R2P’s status as a doctrine and its relationship to international law, it remains clear that, although references to R2P abound, the lack of conclusive support in treaties and opinio juris in customary international law negates the doctrine’s potential status as legally binding international law. Therefore, as Borgia observes, “the so-called norm should be considered only an enthusiastic hope, which can simply be evaded or ignored in the practice of states (as can any other soft law instrument).” States have admitted a responsibility to protect their people, but, when states fail to uphold the social contract, the international community can only implement the second and third pillars of R2P within the constraints of the modern framework. Until evasions of Security Council authority no longer seen as “breaches” of the nonintervention rule, but as “recognition of a new rule,” guaranteed adherence to the social contract and preservation of humankind remains uncertain.
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