Emerging Voices: Is The R2P Doctrine the Greatest Marketing Campaign International Law Has Ever Seen?

[Peter Stockburger is an attorney with the international law firm of McKenna Long & Aldridge LLP and an Adjunct Professor with the University of San Diego School of Law where he teaches international law and appellate advocacy.  The views of this post are the author’s own views and are not attributable to either McKenna Long & Aldridge LLP or the University of San Diego School of Law]

Much has been written about the Responsibility to Protect (“R2P”) doctrine.  Operationally, many have questioned the doctrine’s practical impact in places such as Syria.  Legally, the doctrine’s legacy has been questioned in places such as Libya and the Ivory Coast.  But in both, the R2P doctrine is generally described in one of two ways:  (1) either as an emerging norm of customary international law or (2) as a new binding principle of customary international law.  But what if it is neither?

The purpose of this post is to query whether it is possible that the R2P doctrine represents one of the greatest marketing campaigns ever attempted within the field of public international law.  Specifically, I pose the question of whether the R2P doctrine is, at its core, the re-packaging of already existing State obligations under both positive and customary international law put together for the purpose of facilitating political consensus and widespread legal compliance rather than operational or legal novelty.

This inquiry begins with the 2001 report written by the International Commission on Intervention and State Sovereignty (“ICISS”) entitled “The Responsibility to Protect.”  In it, the ICISS identifies the R2P doctrine as a new legal doctrine and defines it as follows – the concept of State sovereignty under international law “implies responsibility,” and if a population is suffering “serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.”  In other words, the ICISS argues that the long-standing customary principle of non-intervention, enshrined in Article 2(4) of the United Nations Charter, encompasses a new exception – the “international responsibility to protect” – which may be triggered when there is “serious harm” as the result of “internal war, insurgency, repression or state failure[.]”  The questions raised by this statement are too numerous to list.  What does “serious harm” mean?  Who defines “internal war, insurgency” and/or “repression?”  The ICISS goes on to note that the substantive mandate of the R2P doctrine could also include natural disasters and/or economic disparity

Despite this broad mandate, the ICISS also limits the legal novelty of the R2P doctrine by arguing the United Nations Security Council “should be making the hard decisions in the hard cases” about “overriding state sovereignty.”  On its face, this statement represents already existing principles of international law relating to the Security Council and its Chapter VII authority to regulate matters of international peace and security.  However, this statement does beg the question – what about the decisions in the not so “hard cases”?  Do individual States, or regional organizations formed under Chapter VIII, take the lead?

In 2004, then United Nations Secretary General Kofi Annan attempted to address this point by issuing a report of his own in which he endorsed “the emerging norm” that there is a “collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.”  This endorsement is notable for two reasons:  (1) it confirms the role of the Security Council as the sole arbiter in making decisions on international peace and security (a power the Security Council already maintained under Chapter VII); and (2) it limits the otherwise widespread substantive scope the R2P doctrine to “large-scale killing, ethnic cleansing or serious violations of international humanitarian law[.]”  Why did Kofi Annan make this limitation?

Based upon my research thus far, I contend Kofi Annan’s endorsement reflected a political shift within the United Nations.  Put simply, the United Nations wished to make the R2P doctrine an easier sell to Member States.  Annan’s endorsement represented a political choice, and it paid off.

In 2005, the United Nations issued the World Summit Outcome Document and expressly adopted the R2P doctrine.  Specifically, the Outcome Document endorsed the concept of a States’ “responsibility” to protect against “genocide, war crimes, ethnic cleansing and crimes against humanity.”  Notably absent from this list was any mention of natural disasters, or other types of economic and social issues identified in the 2001 ICISS report.  The Outcome Document also expressly limited any type of military action under the R2P doctrine to that authorized by the Security Council – an already existing legal norm.

So, what has changed legally?  States are already required to prevent acts of genocide under the Genocide Convention and customary international law.  Arguably, States are already required to protect against war crimes, ethnic cleansing and crimes against humanity (depending of course how each of those phrases is defined).  In 2009, the current Secretary General of the United Nations, Ban Ki-moon, gave a speech in Berlin in which he identified the 2005 Outcome Document endorsement of the R2P doctrine as the operative endorsement for the doctrine’s operational implementation.  Recently, the United Nations announced the appointment of Dr. Jennifer Welsh of Canada as the Special Adviser on the Responsibility to Protect at the Assistant Secretary-General level in order to “further the conceptual, political, institutional and operational development of the responsibility to protect concept, as set out by the General Assembly in paragraphs 138 and 139 of the 2005 World Summit Outcome Document.”  Therefore, if the 2005 Outcome Document serves as the basis for the operational and legal debate on the R2P doctrine, is it possible the R2P doctrine may in fact represent nothing more than a shift in rhetoric?

Perhaps.  For example, although advocates of the R2P doctrine hailed the Security Council’s 2011 adoption of Resolution No. 1973 regarding the situation in Libya as a watershed moment in the doctrine’s legal development (the doctrine authorized “Member States” “acting nationally or through regional organization or arrangements,” to “take all necessary measures” to “protect civilians and civilian populated areas under threat of attack” in Libya), Resolution No. 1973 in fact only reaffirmed the Security Council’s “strong commitment” to the concept of State sovereignty and reaffirmed that “parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure th protection of civilians.”  This “responsibility” is already rooted in principles of humanitarian law (both treaty and customary based), and the Security Council’s use of Member States and/or regional organizations to carry out its mandate of regulating international peace and security is already encompassed within the Security Council’s authority under the United Nations Charter.  So, again, what is new?

By way of another example, the international community is witnessing the limits of the legal and operational impact of the R2P doctrine through the inaction in Syria.  The paralysis of the Security Council in Syria highlights the difficulty in arguing the R2P doctrine does represent any new set of legal norms or obligations.  If the R2P doctrine is an emerging, or new norm of customary international law, the inaction in Syria can only be described as a failure of the doctrine’s capabilities.  However, if the R2P doctrine is described as a marketing campaign that only re-packages already existing international legal obligations, the failure to act in Syria cannot be blamed on the limitations of a doctrine but rather States as a whole (i.e., a failure to uphold certain erga omnes obligations).

This debate is not a simple one.  Greater minds have examined this difficult question.  In 2006, Thomas Weiss, one of the ICISS’s chief researchers for the 2001 report, noted the R2P doctrine “certainly qualifies as emerging customary law.”  In 2008, Louise Arbour, former United Nations High Commissioner for Human Rights, justice of the Supreme Court of Canada and the Court of Appeal for Ontario and former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, noted that the R2P doctrine is a “new norm,” yet at the same time conceded it is “anchored in existing law, in institutions and in lessons learned from practice.”  States are now attempting to implement the R2P doctrine at the local level.

Yet, the idea that the R2P doctrine does not encompass any novel obligations is perhaps gaining traction.  Recently, the United Nations appointed Professor Jennifer Welsh as the Special Adviser to the United Nations Secretary-General on the Responsibility to Protect.  She gave an interview to the Canadian International Council about her new role and noted that “[n]o new legal obligations were created when R2P was endorsed in 2005.  Instead, the 2005 Summit Outcome Document paragraphs on R2P represented an authoritative interpretation of the UN Charter, and other existing legal obligations to protect populations from mass atrocity crimes.  The statement was important, nonetheless, because it signaled a political commitment on the part of states to act on their responsibilities with respect to mass atrocity crimes.”

The purpose of this post is not to cast doubt on the impact of the R2P doctrine at either the scholarship or human level.  My goal is to open a new line of debate around, and create a new conceptual framework for the R2P doctrine – one that identifies the potential benefits and/or pitfalls of using a politically-driven marketing strategy at the international level in order to bring about consensus and legal compliance.  With the almost daily changes surrounding the R2P doctrine, whether this endeavor will be fruitful remains to be seen.