Abstract
At present, some states are undertaking military interventions in different parts of the world, contending the ‘legitimacy’ of their i006Evocation of responsibility to protect civilians from a humanitarian crisis. Discussions at international forums concerning the concept of Responsibility to Protect (R2P) are inconclusive about its legal nature and application. While some scholars and states support the doctrine of R2P as being legitimate, others challenge or take a rather sceptical view. Divergent views seem to be originating from its incompatibilities with the rules of international law, including the Charter of the United Nations. What is controversial is that the supporters of R2P are mainly from the West, while objections to R2P are from developing countries mainly from West Asia or Africa. This raises concerns about the possibility of future applications of R2P in any of the countries in these regions or other developing countries. The article, analyses the legal nature of R2P in terms of the main principles of international law and other sources of international law and argues that the legitimacy and international legal effect of R2P are uncertain.
Introduction
Since the 1990s, the Western states, including the United States of America, have justified their large-scale bombings and military attacks on countries such as Rwanda, Kosovo, Somalia, and so on, by claiming that there were aimed at alleviating humanitarian crises in those countries under the doctrine of ‘humanitarian intervention’.
The ‘humanitarian intervention’ can be defined as an intervention in the domestic affairs of a state through the use of force to protect people within the jurisdiction of that state from ‘persecution’ and ‘humanitarian crisis’. Although the doctrine of ‘humanitarian intervention’ emerged long ago, it continues to arouse strong criticism and doubt among many states (Shaw, 2003, pp. 1045–1048).
Traditionally, the use of force and intervention in domestic matters is prohibited under the international laws, including the UN Charter and customary rules of international law. An exception to this prohibition is self-defence and authorization of the UN Security Council (UNSC) under Chapter VII of the UN Charter. However, intervening states have frequently used force in the name of ‘humanitarian intervention’ without the authorization of the UNSC. This gave rise to debates on the legitimacy of ‘humanitarian intervention’. It has even been criticized as a ‘coercive breach of the walls of the castle of sovereignty’ (Bayliss & Smith, 2001, p. 472).
In order to make up for the inadequacies of ‘humanitarian intervention’, the international community adopted a new concept of ‘sovereignty as responsibility’ (Deng et al., 1996, p. 12). Kofi Annan, the then Secretary General of the UN secretariat, in the year 2000, used the concept of ‘sovereignty as responsibility’ (Annan, 2000, pp. 48–49) in a report and called upon the international community to have a consensus on how to deal with systematic violations of human rights and large-scale ‘humanitarian crisis’. In response to the call, Jean Chretien, the then Canadian Prime Minister, in September 2000 proposed to establish International Commission on Intervention and State Sovereignty (ICISS), designed to study the military intervention related to international protection of human rights (ICISS, 2001). The ICISS submitted its first report to the UN in December 2001, where it adopted a new concept of ‘responsibility to protect’ (R2P) (Burke-White, 2011). In its report, the ICISS stated that each state has the responsibility to protect its citizens from disasters, including massacre, assault and famine, but, when a state is not willing or able to fulfil its responsibility, the responsibility devolves to the international community (ICISS, 2001).
In fact, the ‘R2P’ is a new concept that was formulated by adding a new content to state sovereignty in view of the lack of consensual recognition of the legitimacy of ‘humanitarian intervention’ (Hwang, 2012).
In 2005, the UN endorsed the principle in the World Summit Outcome Document at the World Summit, as follows:
Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 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, through the United Nations, 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 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 manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. (UN General Assembly, 2005, pp. 138–139)
Later, R2P was placed on the UN human rights agenda and went through heated debates in the Security Council, which led to the conclusion that R2P can only be exercised subject to the authorization of the UNSC (House of Commons, 2018, p. 3).
R2P is the concept that if a state fails to protect its citizens from large-scale human rights crimes, it devolves to the international community by the authorization of the UNSC. R2P can be analysed as follows. First, a state has the primary responsibility to protect its citizens. Second, when a state is unwilling or unable to fulfil this responsibility, the responsibility is transferred to the international community. Third, the responsibility of the international community includes not only assistance by diplomatic, humanitarian and other peaceful means but also collective coercive measures taken if necessary. Coercive measures should be taken subject to the authorization of the UNSC. Fourth, R2P is confined to large-scale human rights crimes, including genocide, war crimes, ethnic cleansing and crimes against humanity (UN Secretary General, 2009).
In 2006, the UNSC adopted Resolution 1674, where it reiterated R2P (UNSC, 2006, p. 4) endorsed in Paragraphs 138 and 139 of the World Summit Outcome. Further, in the 63rd UN General Assembly in 2009, it was proposed that a realistic way for the fulfilment of R2P should be sought.
In such a circumstance, on 19 March 2011, the UNSC passed Resolution 1973/2011, authorizing the use of all necessary measures to protect civilians and civilian populated areas (UNSC, 2011). The resolution was adopted in the wake of civil conflict in Libya and an apparent aggressive response by the Libyan authorities (Roberts, 2011, p. 8). According to this resolution, the North Atlantic Treaty Organization (NATO) forces enforced a no-fly zone and initiated military attacks in Libya on 19 March 2011 in the name of ‘preventing peaceful civilians’ of Libya (BBC, 2011). This resolution and the subsequent establishment of a no-fly zone and military operations by NATO is one of the first applications of R2P.
Just days before the passage of Resolution 1973/2011, a group of neoconservatives wrote an open letter to President Barack Obama, urging intervention. They wrote:
Today the United States and its allies should stand with the men, women and children of Libya who seek a future of peace and dignity. The situation in Libya in the coming days will not just impact {on} the Libyan people. As protests continue against repressive regimes around the world, the message currently being conveyed by our inaction is that killing and repression will go unpunished and are the best option for despots seeking to postpone reform. (The Foreign Policy Initiative, 2011)
It can be inferred from the letter that the political context of R2P application in Libya had important implication for further military interventions in the name of alleviating ‘humanitarian crisis’ in other states and regions of the world.
Surrounding the military intervention in Libya, R2P was seriously debated by the international community. During the process of UNSC for the adoption of Resolution 1973/2011, 10 member states of the UNSC voted in favour and the remaining 5 states, namely, China and Russia, along with India, Brazil and Germany, who were non-permanent members at the time, abstained from voting (Brockmeier et al., 2016). China expressed concern about the ambiguity surrounding the authorization of the use of force in Libya in line with its consistent position that they were ‘always against the use of force’ (Morris, 2013). Once the Western states went into Libya under the banner of the R2P, Russia openly criticized the way in which the military intervention had been carried out (Averre & Davies, 2015).
Later, the UNSC seemed to have reached a stalemate regarding the applicability of the R2P in Syria. Russia and China cast a double veto on numerous draft resolutions concerning the R2P application in Syria (UNSC, 2017), thereby preventing its application. In response, the USA, the UK and France launched airstrikes to ‘deal with’ the alleged ‘Syrian use of chemical weapons’ on 14 April 2018 and justified its legal ground as ‘humanitarian intervention’ (House of Commons, 2018, p. 3). This apparently reflects the deadlock of discussion over R2P within permanent fives of the Security Council (House of Commons, 2018, p. 11).
Classification of Different Positions of States on R2P (UN)
The BRICS countries oppose military intervention in the name of R2P aiming at regime change and maintains that R2P should be given careful consideration with a view to solving ‘humanitarian crises’ in a peaceful manner. Table 1 illustrates divided positions of states regarding R2P.
The legal status of R2P is still being debated seriously among international lawyers and practitioners. Some scholars and states contend that R2P should be established in accordance with international rules governing sovereignty, peace, security, human rights and military conflicts and support that the concept should be recognized as international law. In particular, R2P has been lauded by some international legal scholars and political leaders as a new path forward towards a more benign world of international relations. Some even argue that the doctrine should be ‘regarded as a function of our common humanity that enables us to safeguard our human heritage’ (Arbour, 2008). On the contrary, other academics and states challenge it on the ground that it is ambiguously invoked in international instruments and its boundary has not been defined. Moreover, the legal system regarding R2P has not been established yet.
In the light of the different opinions concerning the international legal nature of R2P, the article focuses on examining whether R2P is compatible with the main principles of international law such as principles of state sovereignty and other sources of international law. The second section evaluates whether R2P could be deemed legal in terms of the main principles of international law: respect for sovereignty, non-interference in domestic matters and non-use of force. The third section analyses whether R2P is compatible with the main sources of international law: international treaties, customary international law and general principles of law.
R2P in Terms of Main Principles of International Law
When we say main principles of international law, they refer to the most fundamental and universal principles which all states recognize and are bound by in the establishment and development of international legal regime. The main principles of international law are the criterion for defining the legitimacy of conducts of states and rules of international law and the basis on which to rely in establishing new rules of international law.
Main principles of international law are the principles of state sovereignty, non-intervention in domestic matters and non-use of force. These fundamental principles of international law are recognized under international treaties, including the UN Charter and the customary rules of international law.
Most of the debates around R2P concerns whether it conforms to the main principles of international law. Put another way, the legitimacy of R2P under international law depends on whether it conforms to the main principles of international law or not. The following subsections analyse the international legal nature of R2P in terms of the principles of state sovereignty, non-interference in domestic matters and non-use of force.
R2P and the Principle of State Sovereignty
The principle of state sovereignty, which is enshrined in the Charter of the United Nations, is the one according to which independence and sovereign rights of every state are recognized, and infringement upon state sovereignty is prohibited. 1 The core of the principle lies in that every state is internally and externally independent, and no state, group of states nor international organizations can interfere in it.
Diametrically opposite to this principle is the concept of R2P, under which intervening states are endowed with the right to breach their obligations to respect the sovereignty of intervened states. R2P, according to which the international community is allowed to take collective coercive actions if necessary, that is, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from certain crimes (ICISS, 2001, p. 29), constitute encroachment upon sovereign states and infringement upon the principle of state sovereignty. No provision in any international treaties, including the UN Charter, specifies that state sovereignty may be checked or restricted if deemed necessary, and what is more problematic here is that the determination of the circumstances where coercive measures are deemed necessary is purely left to the discretion of invokers of R2P.
Therefore, military intervention undertaken directly by the UNSC or authorization of such intervention to other states or regional organizations on the basis of their responsibility to protect civilians of a state where the humanitarian crisis occurred gravely undermines the recognized principle of state sovereignty. R2P in this respect is little more than a justification for prioritizing intervening states’ sovereignty over intervened states’ by extending the sovereignty of powerful intervening states (Breakey, 2010).
It should be noted that the theoretical framework underpinning R2P prioritizes human rights over sovereignty. According to this approach, human rights should take an absolute position in any states and, therefore, human rights overrides state sovereignty. This idea has been under constant discussion in the international legal circles.
Theoretically, human rights and sovereignty are not two separate concepts with one having less or more importance than the other but comprise a single inseparable unit, that is, human rights presuppose sovereignty. While international human rights law only deals with international human rights issues, the principle of state sovereignty universally governs all spheres of international law. Human rights area is no exception. The relationship between human rights and state sovereignty should follow this legal reasoning. In fact, state sovereignty underpins human rights. In modern international society, sovereignty is the main means for respect and protection of human rights of people. When sovereignty of a state is waivered or enfeebled, the human rights of its citizens cannot be effectively protected.
Prioritizing human rights over sovereignty, R2P justifies the restriction of state sovereignty and regime change on the pretext of ‘human rights protection’. The present situation where governments legitimately elected by their citizens are overtly overthrown and human rights crises are aggravated in some countries, including Libya (Nasser, 2013) where R2P was applied, clearly manifests the unacceptability of the doctrine.
In practice, the outcome of the NATO intervention in the name of R2P resulted in a terrible toll of human suffering and political unrest. In fact, the finale of the humanitarian intervention was the violation of the Geneva Conventions; the alleged violation of which was the basis of justifying the humanitarian intervention. Human rights did not improve (Nasser, 2013), if not worsened, and political crisis persisted. R2P in relation to the principle of state sovereignty is not merely a ‘coercive breach of the walls of the castle of sovereignty’ (Bayliss & Smith, 2001, p. 472) but burning up the castle of sovereignty without leaving any trace.
Principles of Non-intervention in Domestic Matters and Non-use of Force
Under the principle of non-intervention in domestic matters, enshrined in international law, including the Charter of the United Nations, a state, a group of states or international organizations are not allowed to intervene in domestic matters within other states’ jurisdiction. 2 Matters within the national jurisdiction encompass a wide range of issues related to state sovereignty, including the establishment of its political, economic and legal system, establishment and enforcement of external and internal policies, legislation, organization of military forces and establishment of foreign relations. According to this principle, states are prohibited to interfere in other state’s domestic matters regardless of its means or methods. Intervention in domestic matters is legitimate, to a certain extent, only in such particular cases as invitation or consent, or for the purpose of performance of treaty obligations.
R2P, however, justifies interference in domestic matters by allowing states or international organizations to unilaterally protect other state’s citizens without seeking for that state’s invitation or consent or invoking treaty obligations if that state fails to fulfil its responsibility to protect its own citizens. It is evident that a state’s ‘unwillingness or inability’ to implement its responsibility to protect its citizens does not amount to invitation or consent to intervene in its national affairs. Only when protection by the international community plays an auxiliary role even in cases of intervening under express invitation or consent can it be deemed compatible with the principle of non-intervention in domestic matters.
At present, no rules of international law on the methods, contents or extents of application of R2P exist. This leads to the observation that the arbitrary application of R2P would inevitably result in occasional interference in other states’ national affairs by intervening states. In practice, no state would completely disregard the issue of protecting its own citizens. It is all relative to determine the extent to which a state fulfils its responsibility to protect its citizens. This seems to manifest that in no state exists the necessity to invoke R2P.
In fact, the states where R2P was applied are mainly those with rich natural resources attracting Western powers’ interests or those in West Asia or African states that are not allied with the West. The political purpose of the intervening states apparently seems regime change and economic monopoly in these countries and R2P is little more than an elaborate cover to that end. Having been devised to fill the ‘political vacuum’ in West Asia and Africa ‘as a result of decolonization’ (Orford, 2011), R2P is incompatible with the principle of non-intervention in domestic matters under international law.
The principle of prohibition on the use of force on the territory of a sovereign state without its consent is another main principle recognized under international law, including the Charter of the United Nations. 3 There are two recognized exceptions to the prohibition: self-defence and authorization of the UNSC (House of Commons, 2018, p. 5).
The use of force indispensable for the exercise of R2P can by no means be in self-defence since in this case force is used unilaterally by intervening states in the absence of armed attack by an intervened state. Use of force in R2P, however, qualifies as an exception to the prohibition on the use of force, as it is an enforcement measure taken under the authorization of the UNSC should the Council consider that the diplomatic, humanitarian or peaceful measures would be inadequate or have proved to be inadequate.
This immediately raises an important problem concerning the determination of the existence of genocide, war crimes, ethnic cleansing and crimes against humanity, which is the prerequisite for the application of R2P. In fact, international law is silent on the issue of such determination, and therefore the determination of the prerequisite of R2P has not been given due regards in practice. As a result, the application of R2P is based on expanded interpretation of the meaning and contents of military intervention, which subsequently leads to the arbitrary use of force in the settlement of human rights issues.
The primary purpose of the principle of prohibiting use of force in international law is mainly to prevent territorial integrity of a state from infringement, and, therefore, the principle of non-use of force has an implied connotation of inviolability of sovereignty. In reality, however, the purpose of humanitarian intervention was frequently regime change, which was ‘packaged’ as an instrument for the protection of civilians, thus violently breaching the non-use of force principle.
This is manifested by the application of R2P in Libya. In fact, on 10 March 2011, a week before the adoption of Resolution 1973/2011 authorizing the use of ‘all necessary measures’ to protect civilians in Libya, the International Crisis Group put forward a two-point initiative which sought to resolve the conflict without the use of force. The proposal called for (a) the formation of a contact group or committee drawn from Libya’s North African neighbours and other African states with a mandate to broker an immediate ceasefire and (b) negotiations between the protagonists to be initiated by the contact group and aimed at replacing the current regime with a more accountable, representative and law-abiding government (International Crisis Group, 2011; Roberts, 2011). This proposal, which was lauded by a number of international players, including Russia, China, India, Brazil and the African Union (Roberts, 2011), was ultimately rejected. Soon after the passage of the Resolution, ceasefires were offered by the Libyan leader Muammar Gaddafi, which could possibly confute the authority to intervene, were also rejected. 4
The background of the passage of Resolution 1973/2011 and the political manoeuvrings seem to indicate that there was a specific purpose of applying R2P in this context:
[T]o declare Gaddafi guilty in advance of a massacre of defenseless civilians and instigate the process of destroying his regime and him (and his family) by way of punishment of a crime he was yet to commit, and actually unlikely to commit, and to persist with this process despite his repeated offers to suspend military action. (Roberts, 2011)
R2P justification in this context looks more like Western superiority complex and at the same time is a political blank cheque that can be used to justify strategic military adventures by those with sufficient resources to carry them out (O’shea, 2012, p. 185).
R2P in Terms of Sources of International Law
Despite its ambiguity, R2P has broadly been welcomed by international legal thinkers as politically convenient (Bellamy, 2008, pp. 626–627; Glanville, 2001, p. 482; Stahn, 2007, p. 118). Efforts have been made to demonstrate the grounds for legitimizing R2P to be a rule of international law in terms of several sources of international law enumerated in the Article 38(1) of the Statute of the International Court of Justice. It has also been argued that innumerable number of treaties, customs and general principles of law in favour of R2P exist in the domain of international law, including international human rights law and humanitarian law, thus attempting to establish the positive basis of R2P.
R2P and International Treaties
General code of conduct for the application of R2P has not been provided in any of the international treaties. Only a few documents, including the 2005 World Summit Outcome and Security Council Resolutions passed in 2006 and 2011 endorsed R2P to some extent. In 2005 World Summit, where representatives from more than 150 countries negotiated R2P, the outcome was produced and it was passed in the UN General Assembly on 24 October 2005 (UN General Assembly, 2005, p. 31). The 2005 World Summit Outcome, which is the first UN document endorsing R2P, has been considered as the most authoritative instrument concerning R2P so far. Afterwards, R2P was reaffirmed in the Security Council Resolutions.
These UN documents and Resolutions, however, do not suffice to vest R2P with international legal effect. In light of the absence of universal and direct international treaty governing R2P, those in favour of the doctrine rely on what they call ‘indirect sources’ of international law governing R2P, namely relevant provisions of the UN Charter and other international treaties. But the idea that the UN Charter and other international treaties indirectly regulate R2P seems simply unacceptable both theoretically and practically.
First, the idea that the UN Charter indirectly specifies R2P lacks theoretical and realistic grounds as it is a Procrustean way of adjusting R2P to the Charter. It has been argued by some international publicists supporting R2P that the obligations of states for human rights protection specified in the preamble and the Articles 55 and 56 of the UN Charter amount to the rules of international law recognizing R2P and the process of its application. In particular, it has been contended that Article 2(7) of the UN Charter provides the legal ground for intervention in national affairs of a sovereign state by the international community under Chapter 7 of the UN Charter by allowing exceptions to the inviolability of sovereignty.
In fact, the core of R2P lies in the transfer of responsibility to protect the citizens of a state in question from that state to the international community in the event of the failure of the national authority to protect its population (ICISS, 2001). Therefore, the international legal ground for justification of R2P should be searched and discussed in the aspects of failure of a state’s responsibility to protect and military intervention. The above-mentioned approaches of the supporters of the doctrine do not provide an answer to the question of whether the international community is permitted under international law to directly resort to force in a state should that state fails to fulfil its responsibility to protect its nationals. Article 2(4) of the UN Charter reads,
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
Article 2(3) obliges all members to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 5 These provisions of the Charter, which are peremptory norms of international law prohibiting the use of force and obliging peaceful settlement of disputes, should be invariably applied to human rights issues. This leads us to the conclusion that the provisions of the UN Charter governing human rights protection cannot be the justification for use of force under R2P.
What matters here is whether enforcement actions taken under Chapter VII of the UN Charter provides legal ground for the use of force under R2P. Article 2(7) of the Charter regulates that the principle of non-intervention in domestic matters is irrelevant to the application of enforcement measures taken under Chapter VII. 6 Those in favour of R2P contend that Article 2(7) makes an exception to the absolute inviolability of the sovereignty, and, therefore, a state that caused ‘grave human rights infringement’ can be intervened under Chapter VII of the UN Charter.
In fact, provisions of Chapter VII and the second paragraph of Article 2(7), which specifies that enforcement measures under Chapter VII do not constitute intervention in domestic matters, are not without complications due to their endowment of unlimited political privilege to a handful of states comprising UNSC. In practice, the exception to non-intervention in domestic matters spelt out in Article 2(7) has been a ‘dead letter’ (Chesterman et al., 2008, p. 24) and the right of the UNSC to military intervention under Chapter VII has never been exercised. The UNSC reform has been an important agenda for many countries. This clearly demonstrate the limitations of the said provisions.
The UNSC is by no means a supranational power organ reigning over all sovereign states. Even though the UN member states conferred primary responsibility for the maintenance of international peace and security on the Security Council, the performance of that responsibility by the latter cannot be prioritized over the sovereignty of the conferrers themselves. Respect for sovereignty and non-intervention in domestic matters are peremptory norms of international law, the derogation from which is strictly prohibited. Consequently, already controversial and problematic provisions of Chapter VII and Article 2(7) cannot serve as a convincing justification for the use of force under R2P.
Second, the idea that a number of human rights treaties provide legal ground for R2P is deficient in that it totally disregards the use of force, which is the kernel of R2P. Some proponents of R2P assert that it is regulated in a number of treaties, including the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (UN, 1948), 7 Geneva Conventions of 12 August 1949 and 1977 Additional Protocol, 1907 Hague Treaty respecting the Laws and Customs of War on Land, Statute of the Nuremberg International Military Tribunal, Statute of the International Military Tribunal for the Far East, and Statute of Yugoslavia International Criminal Tribunal.
These conventions, however, have little to do with use of force since they deal with the definition of crimes, including genocide, war crimes, ethnic cleansing and crimes against humanity and issues of criminal jurisdictions for its punishment. In practice, these treaties on international crimes have only been invoked in ascertaining the illegality of conducts of states that are accused of having committed human rights crimes or humanitarian crimes. In no case, the treaties themselves were invoked to justify military interventions in relevant states. The World Summit Outcome or a few resolutions on R2P alone do not suffice to lend international legal effect to the doctrine of R2P. In this light, proponents of R2P are constantly expanding the range of interpretation of the UN Charter in search of further ‘indirect sources’ to justify R2P.
R2P and Customary International Law
Customary international law, which is a set of unwritten international laws, involves two constituent elements: practice of states and opinio juris. Whether R2P has gained the status of customary rule of international law or not depends on the existence of state practice and opinio juris in favour of the doctrine.
State practice refers to conducts or activities that are usually or regularly undertaken by states, often as a tradition or custom. In order for a practice to be considered as a rule of customary international law, it should be general and consistent. In other words, a certain state practice should be followed not by a handful of states, but by an overwhelming majority of states and not temporarily, but consistently and repeatedly in order to amount to a rule of customary international law. This was adopted in the decisions of international courts and tribunals and widely endorsed in the literature (Wood, 2013, p. 21). In view of the test of state practice, the idea that R2P has become a general state practice seems far from perfect.
R2P was only applied by some member states of NATO in Libya. Few practical applications of R2P can be found. It is as short as a little more than a decade since the concept emerged as a topic of discussion among the international community. And during this time, it has not been followed consistently even in a single region.
Nevertheless, the proponents of R2P argue that the concept is in transition towards practice as the international community gradually began to accept the doctrine. In particular, they contend that R2P has become a state practice or is in the process of becoming one on the basis of the fact that the period during which a new practice develops has recently been shortened thanks to the development of new technologies. This idea, however, is weak as by definition, the existence of a rule of international law is not determined in accordance with subjective intent, interests or assessments of some individuals. For a rule of customary international law to develop, the subjective test of opinio juris should be met as the objective test of state practice. When a state practice is repeatedly and consistently followed and is considered by a majority of states as binding, a rule of customary international law develops. Those in favour of R2P argue that in the present world, where exchange and communication between states have drastically increased, for a rule of customary international law to be formed, it need not necessarily meet the test of repeated application of practice over time but can be formed merely by meeting the second test of opinio juris, and that the doctrine of R2P has already gained opinio juris of a number of states.
Nevertheless, as explored earlier, states maintain substantial differences of positions and approaches on R2P. Observation can be made that the majority of states are opposed or eclectic to R2P (Akehurst, 1986, pp. 95–118; Brownlie, 1974, pp. 217–228; Fixdal & Smith, 1998; Goodman, 2007, pp. 107–141; Hoppe, 2007, pp. 68–75; McMahan, 2008; Rodley, 1973; Tetzlaff, 2006, pp. 239–311), while only a handful of states are in favour of the concept (Fixdal & Smith, 1998, p. 286; McDouglall & Reisman, 1969, p. 444). It seems there is weak evidence in favour of the argument that R2P is an emerging rule of customary international law.
R2P and the General Principles of Law
It is widely accepted that the general principles of law constitute one of the sources of international law as enumerated in Article 38(1). There exist divergences of views on what the general principles of law are and whether they constitute sources of international law. No consensus has been reached on whether the general principles of law denote general principles of domestic laws or those of international law (Shi, 2018, p. 48). Some proponents of R2P argue that the UN member states have reached a consensus on the new concept of R2P, and that it is emerging as what they call ‘general principles of international law’. According to this approach, the ‘general principles of international law’ are reflected in the resolutions of the UN, international treaties, international private law, court decisions and declarations of states. Since the concept of R2P is reflected in such instruments, it manifests common perception of states regarding the need to deal with grave humanitarian crisis, that is, a general principle of international law. They justified this approach by illustrating two typical resolutions passed by the UNSC to authorize the fulfilment of the responsibility to protect Libya (Shi, 2018, p. 48).
The ‘humanitarian crisis’ in Libya was the consequence of stratagem and interference of the West to overthrow the government, introduce Western democratic regime and to take control of rich oil resources in the region. Nevertheless, the UNSC passed Resolution 1970 on 26 February 2011, which authorized the imposition of sanctions on Libya for the purpose of ‘protecting civilians’, prohibition of weapon export, freeze of assets and limiting travel of high-level government officials, including Muammar Gaddafi, and refer the Libyan crisis to the International Criminal Court. On 17 March 2011, the measures of Libyan government to subdue the rebellion force was labelled as a ‘crime against humanity’ that ‘attacked civilians’, thus constituting ‘peace to international peace and security’ by Resolution 1973 (Winchester & Jones, 2013, p. 247). This resolution notified the Libyan authority’s noncompliance with Resolution 1970 and authorized the use of ‘all necessary measures’ to protect civilians in Libya. Military intervention was initiated on the basis of these resolutions (Winchester & Jones, p. 245).
What is controversial here is the allegation of some international publicists that the passage of the resolution without any objections (Winchester & Jones, p. 247) authorizing military intervention shows that common recognition of the international community that R2P is a means to deal with acute ‘humanitarian crisis’ was reached, that is, a ‘general principle of international law’ in favour of R2P was established. In the present international society, where no clear-cut legal criterion for determining the existence of ‘humanitarian crisis’ exist, ‘threat to international peace and security’ and military intervention are utterly at the discretion of big powers. Therefore, it can be argued that R2P is not recognized as a general principle of international law.
Conclusion
Notwithstanding analysis and discussion on R2P for over a decade since the concept began to be discussed by the international community, it was not regulated in any of the international treaties or customary international law nor recognized as a general principle of international law. Therefore, R2P lacks international legal validity and its application amounts to violation of international law. The ulterior purpose of R2P seems to be regime change and dominance over resources under the ‘packaging’ of alleviating ‘humanitarian crisis’. Military intervention according to the doctrine of R2P does not seem to be of any assistance to the resolution of ‘humanitarian crisis’ or human rights issues. Humanitarian crisis, which R2P purports to alleviate, was not resolved, but aggravated, and this in turn posed a number of new challenges to the international community. Aggravation of armed conflicts and political crisis in some countries, including Sudan, Congo, Côte d’Ivoire, Libya and Syria, where R2P was applied or is being applied, does not seem to imply that it can be an efficient means to guarantee peace. Actually, it seems to have an opposite effect. Resolution 1973/2011 is ‘the most aggressive Resolution ever passed by the Security Council’ (Joseph, 2011).
If the concept of R2P is accepted by the international community, it would lead to a radical change, if not to the end, of the UN system for the maintenance of international peace and security, not to mention abnormal phenomenon of infringement upon state sovereignty and territorial integrity. R2P is a method to pursue national interests in other states through aggressive invasion. In reality, it aggravates religious, ethnic and other divisions by interfering in national affairs of sovereign states.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.
