Implementation of Responsibility to Protect: Legitimacy in Question?

The Responsibility to Protect (R2P) emerged as a consequence of the international community's failure to protect civilians in the 20th century. However, the implementation of R2P has been guided by politicised interests rather than human dignity and rights, bringing its legitimacy into question. The legal foundation for nations to react to mass violence is significantly feeble, and the evidence which suggests that states are required to take joint action under Chapter VII, UN charter for enforcing the R2P is also very feeble. The future of R2P in the form of international custom is not very bright, and the legalization of R2P causes a significant challenge faced by the present norms of international relations.

‘Implementation of the Responsibility to Protect norm has been guided by politicised interests
rather than human dignity and rights, bringing its legitimacy into question.’ Do you agree?
Introduction: It was realized by the international community that as a result of its letdown to
protect the civilians in the 20th-century, they were catastrophic consequences. As a result,
international community decided that humans like the Holocaust or the Cambodian genocide
(1970s) or the Rwandan genocide that took place in 1994, should not be allowed to be repeated.
The result was that the principle of responsibility to protect (R2P) emerged as a consequence of
this background amid the efforts made by the UN and the States for improving their response to
mass murders (Dahl, 1989).
The basic principle behind the R2P depends on 2 notions, sovereignty as responsibility and
human security. According to the idea of sovereignty as responsibility, it is provided that the
state sovereignty also includes responsibilities for which the government can be held accountable
for particularly this liability of the state to ensure the security of inhabitants. This means that the
government has to make sure the basic human rights, dignity and worth for every individual
(Curtin and Meijer, 2006).
In this context, the R2P provides that a state has the main liability to defend its own citizens from
grave offenses. These are genocide, crimes against humanity, ethnic cleansing and war crimes.
The three basic pillars of the R2P can be explained as follows. First of all, the state has the main
liability of protecting its people from the offenses that have been mentioned above (Dahl, 1994).
Secondly, it is the responsibility of the global community to support the states in satisfying these

responsibilities. Thirdly, when it becomes clear that a particular state has failed in protecting its
people from the above mentioned crimes, the state has quit its sovereignty and it becomes the
duty of the global society to act in appropriate and determined way and take appropriate
humanitarian, diplomatic and other steps, that have been described in chapter VI and VIII, UN
Charter and also appealed to stronger actions provided by Chapter VII. These measures comprise
the joint force use that has been sanctioned by UN (Decker, 2002).
However, a major challenge in putting into practice the R2P lies in unresolved strains that exist
among the moral duty of the state and the legal obligations of the state while dealing with the
R2P. Generally it is acknowledged by the states that there are moral essentials behind the
response to mass murders. However, the legal responsibility, which requires a response to
widespread abuse of human rights that is taking place in other autonomous nations is feeble and
approximately does not exist under the present international law (Delanty, 2005).
The moral imperative that is present for the states for preventing the repeat of such terrible
crimes is well-stated. Most of the nations are signatories to treaties that have been formed with a
view to defend the inhabitants in case of armed or non-armed clashes. According to the
international system after the Second World War, nations have tried to stay away from the
repetition of the intensity, scale and the duration of the atrocities that have to be faced by the
civilians in World War II.
Still, there are several documents produced over the years, which reaffirmed that UN and its
member States are committed to restricting the abuse inflicted on civilians. By passing the
Universal Declaration of Human Rights and Convention on the Prevention and Punishment of
Crime of Genocide, and also the effect of the creation of war crimes tribunal and prosecution
reveals the trend that is in favor of strengthening international humanitarian and criminal law

(Eriksen and Fossum, 2004). The widely ratified treaties also provide significant dividends that it
has been realized by the states that it is their ethical duty to avert innocent casualties. Moreover,
the United States, that has been a leader in worldwide humanitarian matters, continues with its
pledge to prevent mass murders.
For example, Pres. Obama had reaffirmed the responsibility of the US in 2011 and the atrocities,
and sanctioned the formation of interagency atrocities prevention board. It was mentioned in this
regard that the prevention of genocide and atrocities is a major national security interests and
also an ethical liability of the US. However it needs to be noted that the President had not refer to
the legal responsibility of preventing genocide and atrocities.
The R2P is based on the common understanding that it is the moral duty of the states to prevent
unjustified abuse of human rights of the civilians. On the other hand, the legal foundation for the
nations to react to mass violence is significantly feeble (Akhavan, 2009). The first document that
introduces the concept of the R2P is the report of International Commission on Intervention and
State Sovereignty, published in 2001. The second document had been shaped in December 2004
in a discussion related with UN reform and elevated pane on threats, challenges and change
reinforced the concept in the report, A more secure world: our shared responsibility. The next
document is the UN Security Council report published in 2005. It was called Larger freedom:
towards development, security and human rights for all. It has been mentioned in this report that
security of the state's as well as the humanity cannot be divided. Therefore, collective action is
required for solving the threats that face humanity. It was also stressed upon the there is a need
for embracing their responsibility to protect and act on it whenever required. The fourth
document in this regard is the Outcome document. It was formed after a advanced meeting that

took place in the UN Gen. Assembly in September 2005. It is recognized around his 138 and 139
of this document that it is the duty of each state to defend its inhabitants from crimes of
genocide, ethnic cleansing, war crimes and crimes against humanity. It was also decided that a
corresponding responsibilities also present on the international community (Ayoob, 2002).
Therefore, while the R2P and the above mentioned four documents appear to be reinforcing the
thought that a responsibility is present on part of the international community to take action
when a particular state had failed in protecting its citizens, the reality is that little evidence is
present to suggest that nations have any such legal obligation to act. In case the foreign nations
fail to fulfill their responsibility of protecting and taking collective action, there are no sanctions
faced by these states (Bannon, 2006). This proposes that the R2P cannot be treated anywhere
near to prime the standard under international law.
Under these circumstances, it becomes very difficult to establish that a positive obligation is
present on part of the states to take collective action. There are no particular consequences
attached with the failure of the states to act in accordance with the ILC articles on State
Responsibility. Moreover, the sanctions against such action by global institutions like the UN are
nearly unfeasible to decide or even imagine under global law. At best, the third parties may think
of objecting to inaction. Therefore if the states were not fulfill their responsibility to protect, the
present international law, cannot force the nations to take joint action in this regard (Bellamy and
Drummond, 2011).
Moreover, none of the documents mentioned above, on which the R2P is founded on, can be
considered as resulting in obligatory international law. In this regard, article 38(1), statute of ICJ,
defining conventional basis of international law, provides the only international conventions,
customs, general legal principles, scholarly writings and judicial pronouncements can result in

creating binding international law (Bellamy, 2009). As none of the four documents mentioned
above can be treated as a source of international law, they do not result in any legally binding
obligations for the states. The meaning of this legal situation is that there is no international legal
duty present on part of the states to take action against the state that fails to defend its populace.
At the same time, the evidence which suggests that the states are required to take joint action
under chapter VII, UN charter for enforcing the R2P is also very feeble. The responsibility
imposed on the states to defend their own people is evidently explicated in para 138, Outcome
Document. Similarly, para 139, also clearly provides that foreign nations are required to help the
state in fulfilling its main R2P by steps that do not include the use of force (Bellamy, 2009).
However, the declaration related to the liability to take combined action is more reserved. It has
been mentioned in para 139 that "we are ready to take collective action, in timely and decisive
way, through Security Council, according to the Charter, on a case-by-case basis". Therefore,
this text reveals that the foreign states are only reaffirmed that they are ready to take joint action.
This suggests that the involvement of foreign states is both voluntary than being mandatory.
Moreover, it has been mentioned that joint action is going to be taken on case to case basis. This
undermines any notion regarding the systematic duty of the states to take joint action (Donnelly,
2007).
The only expectation according to which R2P may be an element of international law is in case if
the doctrine is accepted in the form of customary international law. Article 38(1), Statute of ICJ
describes customary international law as the confirmation of general practice that has been
acknowledged as law. There are two components on which international customs are evaluated.
These are the objective measurement of state practice and the subjective measurement of opinio
juris. In case of safe practice, the uniformity in duration for how long the custom has been

applied by the states has to be seen. On the other hand, opinio juris measures if the state
considers this lawful custom as a law and considers the practice of the customers are part of
lawful obligations (Chesterman, 2001).
Still, the future of R2P in the form of international custom is not very bright. Mainly the doctrine
has undergone inconsistent state practice as well as an unclear definition regarding the legal
obligations for the states, that result in a weak sense of opinio juris. There are nine different
cases where the responsibility to protect has been invoked. However, there has been no
consensus on what is a legitimate innovation of the responsibility to protect. An example in this
regard can be given of the case where the responsibility to protect was invoked by Russia in
2008 for justifying the military action it had taken in Georgia. However, the claims made by ratio
were widely rejected by the states. In the same way, France had also invoked the responsibility
for protecting 2008 to rally action from global community for responding to cyclone related
humanitarian disaster that took place in Myanmar. However, the end of the debate was that the
responsibility to protect cannot be applied in cases of natural disasters (Engle, 2007). Therefore,
while the R2P was successfully invoked in case of the election violence that happened in Kenya
in 2007, the appeals to the R2P remain conflicting.
A view of the legal position of the R2P under the international law, the issue that obviously
arises in this regard is if the duty should be preserved in international law. However, the query
that needs to be asked in this regard is if we want to enshrine the responsibility in international
law? In this regard, some experts claim that if the R2P is enshrined in international law. It may
result in endangering the steadiness of global arrangement. The legalization of R2P causes a
significant challenge faced by the present norms of international relations. Mainly, it had to deal

with the concept of state sovereignty, which is among the most revered norms of international
law (Evans, 2008).
There are two principles that act as the foundation of contemporary international system. The
first is the notion of state sovereignty and the second one is the notion of territorial integrity,
according to which the borders are protected between the nations. These principles also found
mentioned in the UN charter in Article 2(4). This term provides that a threat or use of force
should not be made against the political independence or territorial integrity of a particular state.
However, it is a hard job to maintain a equilibrium between this idea and the notion of the R2P
under which, foreign nations are allowed to interfere when doing so is required to protect the
civilians.
On account of their R2P, the sovereignty of the state cannot be described as an intrinsic right of
statehood, but a constructive right, that is provided to the responsible governments that provide
protection to the people. In order to engage the application of the responsibility of protecting, the
widespread norm of state sovereignty has to be revised and a new definition of state sovereignty
may be required to be put in place. However, doing so is very difficult, keeping in view the long
history of the present definition given to state sovereignty.
Conclusion: In the end, it needs to be mentioned that an attempt has been made through the
responsibility to protect to make sure that the international community does not fail once more in
preventing an atrocity as was the case, for example in Rwanda. The initial indications that are
present in this regard appeared to be promising. The great potential of the right to protect can be
seen in the rapid development of dissolution and also the support and influence of this notion.
However, the potential of this doctrine is restricted by continuing debate as well as the concerns
regarding the legal status of the doctrine. Moreover, the effect of the doctrine on international

law concerning the use of force also restricts its potential. However, the concerns and debates
going on regarding the right to protect are misguided. The right to protect is a form part of the
present international legal order. As a result, it does not present any legal change. Similarly, it
should not be modified in order to push for sightseeing in view of a potentially effective United
Nations Security Council. The strength of the doctrine of the responsibility to protect can be
found in its status as a political concept and not as a legal concept. Once, it is clearly accepted,
the focus should be on the growth of the doctrine of R2P the increase its effectiveness and
support by its political influence so as to generate a stronger compliance goal. This is particularly
significant after the controversies regarding the role of responsibility to protect in the league
intervention and also the need of intervention in Syria. It is significant that the doctrine of the
R2P the acts and learns from the failures involved in such situations in order to make sure that
the doctrine realizes its potential, not by stretching the provisions of international law for
providing a chance to use force beyond the purview of UN Security Council framework, but by
including threshold criteria for using force that can assist in guiding the decision making by the
UN Security Council

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