Remarks by Patricia O'Brien
O'Brien, Patricia, Proceedings of the Annual Meeting-American Society of International Law
As we are limited by time, I will focus my comments on the concept of the responsibility to protect (R2P) in the context of current work at the United Nations, and its implementation in the situations of Libya and Syria.
2005 WORLD SUMMIT
In 2005, more than 150 heads of state unanimously embraced the responsibility to protect. They declared that "each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity," and that "the international community, through the United Nations, also has the responsibility ... to help protect populations" from those crimes.
THE THREE PILLARS OF R2P
In addressing the challenge of "operationalizing" R2P, the Secretary-General has identified three pillars of action. Pillar I is the enduring responsibility of states to protect their populations. Pillar II is the role of the international community to assist states to protect their populations before crises and conflicts escalate to the level of the commission of R2P crimes. And Pillar III involves a commitment that states "are prepared to take collective action in a timely and decisive manner, through the Security Council, in accordance with the Charter ... where national authorities are manifestly failing to protect their populations." The commitment also includes action under Chapters VI and VIII, as well as under Chapter VII, and includes cooperation with relevant regional organizations, as appropriate. And, of course, the concept is necessarily limited by the legal framework provided under the Charter. Any decision of the Security Council to take action would require the concurring votes of each permanent member. This underscores that R2P does not create any additional exceptions to the prohibition on the use of force under the Charter--the exceptions being acts in self defense and acts authorized by the Security Council.
Most states have agreed that the role of the United Nations should focus, at the outset, on prevention. The challenge for giving true practical meaning to the concept is thus to work out how the UN can best assist states to protect their populations before crisis situations occur, particularly as there will be situations in which the Security Council will not authorize enforcement action under Chapter VII. This challenge has yet to be met, and, of course, differs with each unique situation.
R2P GIVES EXPRESSION TO IMPORTANT INTERNATIONAL DEVELOPMENTS
R2P gives expression to what has become a global-wide conviction that it is immoral and unacceptable for states to allow gross violations of the human rights of their populations, and that the international community has a responsibility to prevent these crimes. In this light, R2P has grown out of a number of important developments. It reflects a recognition of the changing nature of conflict since the drafting of the Charter in 1945--today most conflicts occur within states rather than between them. It signifies a broad acceptance of fundamental principles of human rights, and reinforces the normative content of the crimes of genocide, war crimes (ethnic cleansing), and crimes against humanity. And it affirms states' obligations under international law to prevent, prosecute, and punish these crimes.
At the heart of R2P is the recognition that state sovereignty--the cornerstone of international relations--entails responsibility. States have a responsibility to protect their populations from the R2P crimes. Building upon this responsibility is the positive obligation which is placed upon the international community to assist states to meet their responsibilities and to take action where these responsibilities are not met. This notion of sovereignty as responsibility underscores that sovereignty is the basis for a certain status and authority under international law, as well as for enduring obligations towards one's people. …