The Responsibility to Protect: Issues of Legal Formulation and Practical Application
Kantareva, Silva D.
- Submitted in partial fulfillment of the degree of Master of Arts in Law and Diplomacy at the Fletcher School of Law and Diplomacy. Abstract:he codification of the doctrine of the 'responsibility to protect' at the World Summit meeting in 2005 is emblematic of the increasing importance attributed to human security in world affairs today. An indication of the growing recognition that state sovereign... read morety 'finds limits in the protection of human security,' the responsibility to protect, also known as R2P, posits an alternative interpretation of sovereignty-one that is no longer just a right in Westphalian terms, but one that also creates obligations for States with respect to the security of their subjects. As a doctrine, R2P encompasses a number of normative tenets with varying degrees of legal acceptance, the most controversial of which seeks to permit coercive intervention, under certain conditions. Given the wide and long-standing acceptance for the preventive and peace-building aspects of the doctrine, the real debate surrounding R2P is a rehash of the long-standing discussion on 'just war' and humanitarian intervention. While far from crystallizing into anything resembling binding law, R2P can arguably impact the justificatory discourse in international law and raise the political costs of action or inaction in the face of gross human rights violations. By creating a sense of moral obligation among States, through a repeated process of interaction, interpretation and internalization, R2P has the potential to spur a 'coincidence of interest.' With this paper, I will examine whether it is justified to speak of an emerging norm in the case of R2P; whether state practice in the area demonstrates any conformity to this principle; and whether there is any evidence in international discourse of a broad consensus (opinio juris) with respect to its legality. In order to judge the potential for such an outcome to develop, a useful starting point would be to track the frequency and nature of recourse to this concept in international discourse, and more specifically, within the General Assembly and the United Nations Security Council, which, insofar as coercive action is concerned, has been officially charged with the responsibility to protect. Five years into its official 'endorsement,' the responsibility to protect has been barely made operational and has done very little by way of affecting discourse among Member States. The Security Council is yet to translate R2P in a meaningful way even though it has had ample opportunities to invoke R2P, in the cases of Sri Lanka, Zimbabwe, Somalia or Myanmar. It certainly failed to operationalize it in the cases of Darfur and the DRC. What is more, there seems to be little agreement among the membership as to the scope and operational parameters of R2P, as becomes obvious from recent debates in the General Assembly. The conduct and statements of States do not give weight to the idea that humanitarian intervention, albeit under a different nomenclature, is now legal or justified by this nascent doctrine.read less