Rethinking the significance of the responsibility to protect concept.

Author:Orford, Anne
Position:OPENING PLENARY: MILITARY INTERVENTION AND THE INTERNATIONAL LAW OF PEACE
 
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According to UN Secretary-General Ban Ki-moon, while the responsibility to protect concept came of age in 2011, the challenge facing the international community remains that of transforming the responsibility to protect concept from "promise to practice" or from "words into deeds." (1) In my remarks, I suggest that the significance of the responsibility to protect concept lies in its capacity to do the reverse--that is, to transform practice into promise, or deeds into words. More specifically, the responsibility to protect concept offers a framework for rationalizing and consolidating practices of international executive rule, many of which were developed by Dag Hammarskjold, the second Secretary-General of the United Nations, in the early years of decolonization. I argue that the normative significance of the concept is obscured if we focus purely upon its relation to military intervention, whether authorized (as in the case of Libya) or vetoed (as in the case of Syria).

PRACTICES OF PROTECTION: EXECUTIVE ACTION AND THE UN CHARTER

The idea that the United Nations has a responsibility to protect life in the decolonized world began to take shape with two operations that were undertaken while Hammarskjold was in office: the first being the creation of the United Nations Emergency Force (UNEF) in response to the Suez crisis of 1956, and the second the establishment of the UN Operation in the Congo in 1960. (2) The techniques of executive rule developed under Hammarskjold's auspices during those early crises of decolonization included fact-finding, peacekeeping, strategic forms of technical assistance, and civilian administration. Those techniques have, of course, since expanded dramatically.

Yet, as Hammarskjold recognized, there is little in the Charter that suggests its authors envisaged the creation of an international executive that could undertake such wide-ranging forms of action. In the introduction to his 1961 Annual Report to the General Assembly, Hammarskjold noted that although "great attention is given" in the UN Charter to elaborating "the parliamentary aspects of the Organization, little is said about executive arrangements." (3) To the extent that there exists an explicit legal basis for these forms of executive action, Hammarskjold found it in the provisions of the Charter entrusting the Secretary-General with the execution of political decisions at the request of the political organs, and in Article 99 providing that the Secretary-General "may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security." (4) Hammarskjold interpreted these provisions as giving the Secretary-General a position of full political independence and a broad discretionary mandate to engage in such forms of fact-finding, preventive diplomacy, and other behind-the-scenes activity as were necessary to carry out his functions.

Hammarskjold thus did not interpret the limited attention in the Charter to executive aspects of the UN as a constraint on executive action. Rather, he considered that "the executive functions and their form have been left largely to practice." (5) He argued forcefully that it was necessary to stop thinking of the United Nations merely as a forum for...

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