Could R2P Justify a No-Fly Zone in the Absence of Security Council Approval?

The following is a guest post by Natalie Oman, an Assistant Professor of Legal Studies at the University of Ontario Institute of Technology in Canada.

As the Libyan rebels’ requests for an internationally-enforced no-fly zone have multiplied and regional support has coalesced among the Arab League, the GCC and some members of the African Union, public hand-wringing over the lack of a Security Council resolution to ‘legalize’ such action has intensified. But Security Council authorization under Chapter VII of the UN Charter is not the only available legal basis for military action to close Libyan airspace.

As is well-known, in 2001, the International Commission on Intervention and State Sovereignty (ICISS) identified what it described as a crystallizing principle of international law – the responsibility of states to protect the ‘human security’ of their citizens. According to the Commission’s reading of evolving customary international law, when states fail to fulfill this fundamental role, the responsibility to protect devolves upon state-members of the international community.

Led by the United Nations, this principle has been developed as a central plank in the current Secretary-General’s human protection agenda. The interpretation of the responsibility to protect championed by the UN (‘R2P’) is ‘narrow but deep,’ holding that the principle applies only when threats to human security take one of four forms: possible genocide, ethnic cleansing, war crimes, or crimes against humanity. Key to the R2P view is the assertion that the principle is a moral and political one, with no legal character. It follows that military intervention for human protection purposes is only legal on this account when approved by the Security Council (or in rare cases, presumably involving a Uniting for Peace resolution, by the General Assembly).

But this isn’t the whole story, because the UN’s interpretation of the responsibility to protect is not the only one possible. It is plausible not only to regard the responsibility to protect as a legal principle in line with the ICISS’s account, but also to understand it as possessing an over-determined legal character, with its origin in multiple sources of international law. There is evidence to suggest that the responsibility to protect can be interpreted not only as a product of customary international law, but perhaps more revealingly as having its source in ‘the general principles of law of civilized nations’ identified in Article 38(1) of the Statute of the International Court of Justice.

The means by which general principles of international law come into being are under-explored in international legal research and jurisprudence. But Giuseppe Sperduti, the late Italian judge on the European Court of Human Rights, outlined one process of international legal norm-creation that clearly corresponds to this category of international legal sources. In his Lezioni di diritto internazionale, Sperduti described a process of ‘legal recognition of the demands of public conscience’ (riconoscimento giuridico di esigenze della coscienza pubblica) that produces general rules of international law. Sperduti’s examples of such norms include the prohibition against wars of aggression and the slave trade, as well as the protection of civilians and combatants against inhuman warfare. It is evident that the responsibility to protect is emerging as another such norm.

But in order to understand the responsibility to protect as a legal principle offering grounds for action independent of Security Council authorization, another step is needed. The prevailing R2P version of the principle not only depends upon the assumption that the responsibility to protect is non-legal in character; it also rests upon a common reading of Article 2(4) of the UN Charter which suggests that the Security Council is the only body able to authorize the legal use of force across state boundaries (except in circumstances of self-defence). The Security Council is, of course, charged with ‘primary responsibility for the maintenance of international peace and security’ in Article 24(1) of the Charter, but it is not clear that this means that the Security Council possesses a monopoly upon the lawful use of international force. While it is without doubt that all proponents of the responsibility to protect regard a Security Council mandate as the most unassailable form of authorization available, Article 2(4) can be interpreted to allow for military intervention under certain circumstances without violation of Charter Article 2(4) in the absence of a Security Council resolution.

This argument turns on the breadth of application of the jus cogens prohibition on the use of force recognized in Article 2(4) of the Charter, and is outlined in recent work by Gelijen Molier makes a plausible case for regarding highly circumscribed violations of Article 2(4) – such as those that might be undertaken in compliance with the responsibility to protect criteria for military intervention but without Security Council approval – as not constituting aggression, and therefore, not in violation of a jus cogens norm.

This, or a similar view of Article 2(4) is implied by the original ICISS reading of the responsibility to protect, which, like the interpretation suggested here, leaves room for invocation of the principle as a legal justification in cases that are widely-recognized as meeting all threshold criteria for intervention, but are not supported by a resolution of the Security Council.

There is a powerful and obvious disincentive to adopting the interpretation of the responsibility to protect outlined here: the fear that it will mark its proponents as apologists for neo-imperialism. But taken in context, with all of the caveats and cautions that are integral to the principle itself, this argument cannot be employed successfully to reinforce the historical hierarchy in international law between ‘civilized’ and ‘uncivilized’ (memorialized as it is in the very wording of the ICJ Statute in question), nor used as a figleaf for imperial geopolitics. Instead, this reading of the R2P uses the mechanism of law-creation underlying Article 38(1) to assert the agency of non-state actors in international law and to acknowledge a polycentric alternative to the dominance of the P5 members of the Security Council. It does so by recognizing the legal normativity of the ‘demands of public conscience,’ where ‘public conscience’ is the product of an incomplete, imperfect process of global opinion- and will-formation that involves INGOs (such as the International Federation of Red Cross and Red Crescent Societies and Médécins sans Frontières), the media of global reach, and emerging social media.

In the absence of Security Council membership rules or decision-making procedures that reflect the key commitments of global human rights culture — and thus lack what Jürgen Habermas terms ‘procedural legitimacy’ — the possibility of invoking the general principle of the R2P as a legal justification for military intervention that meets the stringent threshold criteria developed by the UN will remain open. The legitimacy of such a move, however, will inevitably depend upon the particular circumstances identified by the ICISS: ‘the purpose, the means, the exhaustion of other avenues of redress against grievances, the proportionality of the riposte to the initiating provocation, and the agency[/ies] of authorization.’