Responsibility to protect: an explanation.

Author:Basaran, Halil Rahman
 
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  1. Introduction II. Intervention in Domestic Affairs III. Recognition IV. Diplomacy V. Relational Contract Theory VI. International Law and Mass Atrocities VII. Conclusion I. Introduction

    The Responsibility to Protect (R2P) is the term proposed by a Commission convened by Canada in 2001 to counter humanitarian crises the world over. (1) The R2P was referred to in the United Nation's 2005 World Summit Outcome, (2) Security Council resolutions, (3) and General Assembly (GA) resolutions. (4) In the event of a nation-state's unwillingness or failure to prevent genocide, crimes against humanity, war crimes, or ethnic cleansing within its own borders, the international community is given the responsibility by the R2P to warn the

    1. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the UN in establishing an early warning capability.

    2. The international community, through the UN, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, 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 from genocide, war-crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

    State and, if deemed necessary, militarily intervene. (5) The R2P is not, however, ratified by an international treaty, and whether it has become a customary rule of international law or a general principle of law remains open to debate.

    The R2P is an equalizer that helps opposition groups in sovereign countries. It is the new instrument that allows opposition groups to challenge sovereign states. The R2P bolsters this challenge by inviting scrutiny of the dealings of states with opposition groups within their boundaries. This scrutiny not only brings knowledge to opponents within the country, but also garners worldwide focus and censure of governments. It reinforces third-party judgments of competition and conflict inside state borders.

    Thus, within the framework of the R2P, states are now being held to a higher standard. That is, the R2P generates an underdog advantage of sorts by focusing a spotlight on those (over-) powerful governments that persecute, or intend to persecute, opposition groups. (6) The R2P is a doctrine that challenges the long-established understanding that human rights are ultimately a profoundly national question, rather than an international matter.

    Underdogs can be defined as individuals or groups that are a disadvantaged and lacking in power. (7) However, those that appear as underdogs have, in fact, greater resources at their disposal than would initially seem the case. Conversely, the "strong," and the "powerful," are not always what they seem. Indeed, the notion of the underdog can be said to be linked to the notion of the "failure", or demise, of the most successful group, team or party. Underdogs are outcasts and misfits who aim to overcome the dominant power. They respond to adversity and place themselves ahead of others and ahead of the game. (8) Power can thus come in surprising forms. (9) Those who seem weak at the outset can resort to unconventional methods to override their seemingly indomitable enemies; (10) they can break and circumvent established rules in the name of strength. The underdog thus has the ability, and perhaps the freedom, to turn disadvantage into advantage. The underdog may therefore have greater strength and purpose than previously and traditionally envisaged.

    Within national borders, the notion of the underdog fits opposition groups, who are outside of government and thus outside the game, namely international law. Defining opposition groups through the notion of the underdog is a metaphorical simplicity, and, through this metaphor, this Article aims not to make a policy description, but to contribute to the understanding of the relationship between opposition groups and governments.

    Opposition groups, as a principle, are neither recognized nor protected in classical international law because the ultimate pillar of the international legal system is a sovereign state. (11) The notion of sovereignty appears in international law under the doctrine of positivism, according to which only rules expressly recognized as international treaties and customs are the sources of international law. (12) That is, the will of states, as expressed by treaty and custom, is the ultimate and exclusive source of law. (13) International law has its own "positivity" and "self-sufficiency" based on sovereign states, and in this positivity, there is no place for opposition groups. Self-sufficiency rejects the taking over of rules and precepts from sources other than international treaties and customs. (14) "Such borrowing, it is alleged, destroys the independence of international law and [hinders] its free development." (15) Interference in the relationship between states and opposition groups therefore cannot be imported from another source into international law.

    The argument of this Article is that the R2P--though still not a norm of international law--may be a convenient instrument in the toolkit of persecuted opposition groups. The R2P is the response to the straitjacket imposed by classical international law. Through this challenge, the concepts of intervention, recognition and diplomacy can be questioned, and this questioning might lead to a legalization of the R2P and a further clarification of the handling of opposition groups in the future.

    This Article first discusses intervention in domestic affairs, after which, the concept of recognition in international law will be explored. It will then discuss the diplomacy of the R2P. Relational Contract Theory (RCT) is covered in the ensuing section, followed by an analysis of the disillusionment with international law with respect to mass atrocities. The Article concludes by arguing that the R2P might be a useful instrument for opposition groups for conceptualizing and contextualizing international law in their own favor.

  2. INTERVENTION IN DOMESTIC AFFAIRS

    Although human rights law, as developed after the Second World War, challenged the sovereignty of the state, the state remains the ultimate arbiter of domestic affairs. (16) However, the R2P, which was endorsed by the 2005 United Nations World Summit Outcome, as well as by resolutions passed by the General Assembly and the Security Council, (17) is an acknowledgement on the part of the international community of the insufficiency of states in regards to domestic affairs. The R2P shows that the international community is interested in the relationship between governments and opposition groups. The R2P respects national autonomy, but at the same time requires state participation and accountability in the international system via respect for opposition groups. The international community, through the concept of R2P, wishes to bring rational calculations into disputes between governments and opposition groups and aims to rationalize the repercussions of these disputes on international law. The question is whether this rationalization is a new type of covert intervention into the domestic affairs of states.

    Arguably, there has always been intervention by the international community in the internal affairs of sovereign states. There is a sliding scale of diplomatic language--that is, intervention is carried out under a number of names. Indeed, in the past, intervention was hidden under terms such as "lease," "rectification of frontier" and "concession"--inventions and expressions of the cynical spirit of imperialism. (18) In the post-World War II era, intervention took on three new monikers: trusteeship, developmentalism and neo-liberalism.

    After World War II, the most prominent and institutionalized type of intervention was the trusteeship system, as recognized by the United Nations Charter. (19) For all practical purposes, it was a continuation of the mandate system of the League of Nations. (20) It provided for a hierarchy among nations, and permitted massive intervention by one nation into the domestic affairs of another. (21) Following the 1994 independence of Palau--the last of the trust territories and formerly part of the Trust Territory of the Pacific Islands--the Trusteeship Council has been left without responsibilities. (22)

    The second type of post-World War II intervention was developmentalism, which emerged from the then-ruling milieu of Keynesian economics, protectionism and domestic regulation. (23) According to developmentalism, the prestige of a government stems from its success in economic policy. (24) Governments...

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