Politics or Law? the Dual Nature of the Responsibility to Protect

Article excerpt

No longer wholly an aspirational doctrine, the responsibility to protect concept, as international law, obligates nation-states to protect their people against mass grievous human rights violations, and also obligates the international community to respond in some manner to mass atrocities when a state has failed to fulfill its original sovereign protective responsibility. While this doctrine is mutltifaceted, only these two components have attained the status of customary international law, and the latter responsive facet in a rather embryonic and amorphous manner. Though not a black and white discussion, it is important to consider responsibility to protect's role on the world stage, since such consideration lends to more accurate assessments of national obligations and future actions. It also separately highlights the messy process of the formation of international law.

Customary international law can be rather opaque, and constitutes a spectrum ranging from aspirational ideals on one end, to settled legal precepts and jus cogens on the other. The state's obligation to protect its own people is farther to the right on this spectrum, toward settled legal precepts, than the nascent obligation of the international community to respond in some manner to gross human rights abuses. However, this essay's premise--that there is some type of obligation, binding on the international community of nation-states, to react in some condemnatory manner to atrocities previously solely within a sovereign state's domain--highlights how customary international law evolves. In 2005, as nation-states began to operationalize the responsibility to protect theory on the world stage, they formally agreed to assist nations in satisfying their individual state protection responsibility, and also pledged to consider taking collective action when a nation-state fails its own protection mission. These commitments currently exist as indeterminate pledges to engage in unspecified action, and have yet to become customary international law in the particular form articulated at the 2005 United Nations World Summit gathering. (1) This essay briefly demonstrates how and why responsibility to protect has otherwise evolved into customary international law by sketching its lineage and citing examples of how it has been utilized. This piece also summarily addresses why the distinction between policy/politics and law matters. The transformation from a political and moral commitment to protect human rights to a legal rule is not purely theoretical; it matters because the responsibility to protect as law forecasts how national leaders will react to mass human rights abuses, and informs their future decision-making. (2)

In 2009, the United Nations Secretary-General re-formulated the responsibility to protect into three distinct pillars: "[t]he protection responsibilities of the State"; "[i]nternational assistance and capacity-building"; and "[t]imely and decisive response." (3) Based on the language of the original international consensus on responsibility to protect as stated at the 2005 World Summit, as well as the global community's reaction to this formulation and actual practice regarding this issue, this essay declines to find that the Secretary-General's second pillar has attained customary law status, and explains how only a generalized version of the third has reached the same. The first pillar, however, seems to have become noncontroversial international law.

I. BACKGROUND: WHAT IT IS AND WHY IT MATTERS

As agreed to unanimously by the United Nations General Assembly in 2005, (4) and twice thereafter reaffirmed by the United Nations Security Council, (5) the responsibility to protect legal paradigm first and foremost requires nation-states to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. (6) It concomitantly obliges the international community to use peaceful means to help protect populations from the four scourges; if these means are inadequate and "national authorities are manifestly failing to protect their populations" from same, responsibility to protect allows the international community to take non-consensual "Chapter 7" collective action. …