Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law

[Ezequiel Heffes and Brian E. Frenkel are LL.M. candidates at the Geneva Academy of International Humanitarian Law and Human Rights and Teaching Assistants of Public International Law at the University of Buenos Aires, School of Law. This post reflects partial conclusions of our ongoing research at the University of Buenos Aires’s Law School as members of the project “Beyond the Jus In Bello? The Regulation of Armed Conflicts in the History of Jus Gentium and the Limits of IHL as an Autonomous Regime Before other Branches of a ‘Fragmented’ Public International Law.”]

In the last few years the general prohibition on the use of force enshrined in Article 2 (4) of the UN Charter has been approached differently from the classical view. In situations of mass violations of human rights and international humanitarian law, the responsibility to protect (R2P) and humanitarian intervention have begun to emerge as possible exceptions. As Jennifer Trahan correctly points out, from a legalistic point of view the UN Charter only allows intervention in two scenarios: UN Security Council authorized action, and the exercise of the “inherent right of individual or collective self–defence if an armed attack occurs” by one State against another State (Article 51 of the UN Charter).

In consequence both, R2P and humanitarian intervention, would be outside any legal framework. But perhaps, and only perhaps, by analyzing the use of force in international law from a different perspective, new proposals could be taken into account. In an earlier post on this blog, André Nollkaemper has presented the possibility that strikes could be part of a process of reconstruction of the law on the use of force, but what does this mean? An alternative view of the existence of the prohibition of the use of force in international law has to be approached.

Rosalyn Higgins has postulated in the past that international law is a legal decision–making process, i.e., it is a continuing process of authoritative decisions. This idea considers that rights and obligations of entities are created by participants –and not by subjects of international law, a notion that according to her has no functional purpose– and determined not by reference to the trend of past decisions, which she calls ‘rules’, but through a continuous and dynamic process of decisions made by authorized persons or organs. This participation, however, would depend in the end on their factual power to do so in order to be accepted by other established participants of that same system. Higgins affirmed in the same sense that if international law was only a set of rules, then it would be unable to contribute to a changing political world. This rejection means that “those who have to make decisions on the basis of international law –judges, but also legal advisers and others– are not really simply ‘finding the rule’ and then applying it. This is because the determination of what is the relevant rule is part of the decision – makers’ function; and because the accumulated trend of past decisions should never be applied oblivious in the context”. Precisely, Julian Ku raised a similar matter when he posted here that President Obama affirmed that international law is a “factor in the decisionmaking process in the U.S.” since U.S. officials were looking at Kosovo as a precedent for an intervention. The main issue therefore seems to be concerning the prohibition of aggression, is it possible to consider that it is only a set of rules? Could it be changed through the abovementioned process? Higgins answered these questions affirming that even when its prescription is a necessary rule of coexistence, it still must be taken into account the fact that it is “the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death”. This means that the foresaid prohibition could change without necessarily loosing its strength, and R2P and humanitarian intervention could be allowed only with the States’ consent. From a theoretical perspective this seems difficult, but not impossible.

Higgins’s theory is certainly susceptible to objections. Roland Portmann for instance affirms that there is a confirmed tendency today that supports the idea of having general rules of international law. Even though this could be taken into account, new paradigms shall be explored including other notions of the above–mentioned use of force regime having in mind that today the law created to maintain international order is not working, or it is working but only in a limited sense since it is not persuading some States to not use the force.

In the context of R2P, by adopting the World Summit Outcome Document, the UN instead of participating in this decision–making process decided to enclose possible new paths within the Charter (Secretary General Report “Implementing the responsibility to protect”; General Assembly Resolution 63/308; SC Resolutions 1674, 1894, among others). It decided then to incorporate all of these legal constructions but nonetheless expressly included the intervention and approval of the Security Council as a requirement. At that time none of the P–5 criticized this. On the contrary, they reaffirmed it (Resolution 1674/2006 unanimously adopted) perhaps as a way of legitimizing their delegitimized position. Nowadays, facing situations where SC action is blocked because of the veto of one or more P–5 members, the others are looking to go back to an alternative view outside Article 2 (4). This would be supported by Higgins’s design, which seems to be the most suitable guideline for the dynamic processes of the international community. It could be said therefore that certain States are continuously contributing in the creation of new international rights and obligations in order to develop new paradigms, either because they understand that the 1945´s does no longer solve current issues, or because it does not serves their interests. In any case, the struggle on the decision-making process cannot be denied. The changes on the UN conception about the R2P doctrine, the division within the Security Council and the veto possibility, the returning to old arguments, they all prove that the Article 2 (4) is no longer considered “sacred” and that there are some intentions to make a change.