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.
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. (7) This latter collective action, presumably to stop such atrocities, is to be conducted via the United Nations Security Council but is not mandated in every instance of mass atrocities. (8) The international consensus agreement regarding the responsibility to protect, as reflected in the United Nations documents, stops short of requiring coercive action, stating instead that the international community is "prepared to take" such action on a "case-by-case basis." (9)
The first obligation--that of nation-states to protect their inhabitants--has progressed from a theory, to a norm, to customary international law. (10) But surprisingly, this evolution of state sovereignty has elicited little concern on the international stage. This quiet acceptance is perhaps due to the fact that the other main prong of responsibility to protect, that of intervention by the international community into the internal affairs of states when they have not fulfilled their protection responsibility, directly challenges the Westphalian model of sovereignty, and its controversial nature has overshadowed the idea that state sovereignty includes a responsibility of the state to its people. (11)
The traditional notion of state sovereignty rests on the tenet that the central state authority controls everything within its territorial jurisdiction and that fellow states cannot interfere in this domestic sphere: this is the international law principle of non-intervention. (12) This Westphalian model of sovereignty does not specify a state's relationship to its own population, making the responsibility to protect's fundamental tenet, that states possess a legally-binding duty to protect their populations from mass atrocities, superficially revolutionary. However, as recognized by the United Nations Secretary-General, "[p]rotection was one of the core purposes of the formation of States and the Westphalian system." (13) This attribute of sovereignty is really "old wine in new bottles"; (14) its lineage can be traced to Hobbes' social contract theory: that people covenant with a sovereign authority in exchange for fundamental protection from life's vicissitudes. (15)
The fact that the first tenet of the responsibility to protect doctrine is well-grounded in existing international law and political philosophy does not mean that leaders such as the United Nations Secretary-General have admitted it constitutes customary international law; perhaps they fear partitioning the general doctrine, with its controversial intervention prong, into distinct components with differing legal status. (16) Despite this lack of formal recognition, even nations such as Iran, a staunch proponent of non-intervention, implicitly support the concept of a nation-state's responsibility to protect its people. (17) The Iranian Ambassador to the United Nations has stated that Syria had an obligation to its people to stop the then-extant human rights abuses there, regardless of who was perpetrating them, while vehemently condemning any attempt by other nations to take coercive action against the Syrian government. (18)
In contrast to the relatively non-controversial acceptance of the concept of the state's responsibility to protect its population, the status of the responsibility to protect's prong which posits a collective obligation by other states to help prevent and stop ongoing instances of one of four mass human rights violations in a fellow state is much more controversial. (19) But with sufficient caveats as explained below, it also appears to have evolved into the most elementary level of customary international law. That is, responsibility to protect's second customary international law component is a requirement for some type of censorious action by the international community in response to genocide, crimes against humanity, war crimes, and ethnic cleansing. (20) This obligation is a vague one, which involves a spectrum of responses. It does not require one particularized type of action, such as the use of non-consensual military force within the territory of another nation-state to interdict mass atrocities (the 1990's concept of humanitarian intervention, with Kosovo being a prime example).
Rather, responsibility to protect as law provides that (1) national sovereignty confers to the nation-state an obligation to protect their populations from the four stated grave human rights abuses, and (2) when a nation-state is unwilling or unable to render such protection, the international community is legally required to engage in some type of condemnatory action, ranging from critical discussion to coercive military intervention. (21) While the latter proposition seems to imply that mere global hand-wringing is sufficient to prove that responsibility to protect has evolved into customary law, such reactive discussion is a type of behavior and its ubiquitous nature does in fact indicate international law status.
LAW VERSUS POLITICS: DOES IT MATTER?
The United Nations Special Advisor for the Responsibility to Protect, Dr. Edward C. Luck, has emphasized that the responsibility to protect is "not law, it's politics." (22) Of course the responsibility to protect involves politics--all law involves some level of politics, as legal realism has long avowed. (23) Simply because the implementation of responsibility to protect involves political calculations by nation states does not innately negate its status as customary international law. The adherence to law by nation states in the international arena rarely fails to include a weighing of national interests, resources, and other dynamics: in other words, politics. If responsibility to protect is not law because it involves politics, than none of...