The Normative Status of the Responsibility to Protect after Libya*
In: Global Responsibility to ProtectThe responsibility to protect concept has evolved rapidly in the last decade but its normative and legal status is still disputed. This paper assesses the degree of recognition the concept has attracted since its inception and the significance of resolutions 1970 and 1973 for the transformation of the responsibility to protect into a new norm of customary international law. It argues that despite claims about the centrality of the concept in the decision to intervene in Libya, the language of both resolutions, and the statements made by members of the Security Council surrounding their adoption, indicate that member states did not consider that they were legally bound to protect the population of Libya. Consequently, the intervention in Libya has not promoted the development of a legal obligation upon the international community to protect the world’s populations against gross violations of human rights.
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4
Ibid., p. 17.
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5
Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington: The Brookings Institution, 2008), p. 44.
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8
See Catherine Powell, ‘Libya: A Multilateral Constitutional Moment?’ The American Journal of International Law, 106/3: 298-316 (2012), p. 316; Edward C. Luck, ‘The Responsibility to Protect: The First Decade’, Global Responsibility to Protect, 3/4: 387-399 (2011), p. 392; Ramesh Thakur, ‘Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism’, Security Challenges, 7/4: 13-25 (2011), p. 13.
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10
Ibid., p. 2.
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11
Ibid., p. 17.
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12
Jose Alvarez, ‘The Schizophrenias of R2P, Human Rights, Intervention and the Use of Force’ in Philip Alston and Euan MacDonald (eds.), Human Rights, Intervention, and the Use of Force (Oxford: Oxford University Press, 2008), p. 275.
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17
Monica Serrano, ‘The Responsibility to Protect and its Critics: Explaining the Consensus’, Global Responsibility to Protect, 3/4: 425-437 (2011), p. 427.
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19
S/RES/1674, 28 April 2006, para. 4; S/RES/1894, 11 November 2009, preamble para. 7. The endorsement of the Security Council was significant given its primary responsibility for the maintenance of international peace and security.
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20
Ban Ki-moon, Implementing the Responsibility to Protect, p. 28.
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21
Alex J. Bellamy and Ruben Reike, ‘The Responsibility to Protect and International Law’, Global Responsibility to Protect, 2/3: 267-286 (2010), p. 269.
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22
See Jennifer M. Welsh, ‘Turning Words into Deeds – The Implementation of the Responsibility to Protect’, Global Responsibility to Protect, 2/2: 149-154 (2010), p. 151; Luke Glanville, ‘On the Meaning of “Responsibility” in the Responsibility to Protect’, Griffith Law Review, 20/2 (2011), p. 490; Anne Peters, ‘The Security Council’s Responsibility to Protect’, International Organizations Law Review, 8/1: 15-54 (2011), p. 25.
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24
Ibid., p. 30.
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25
Ekkehard Strauss, ‘A Bird in the Hand is Worth Two in the Bush – on the Assumed Legal Nature of the Responsibility to Protect’, Global Responsibility to Protect, 1/3 (2009), p. 296.
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26
See ibid., pp. 293-299.
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29
Simon Chesterman, ‘Violence in the Name of Human Rights’ in Conor Gearty and Costas Douzinas, The Cambridge Companion to Human Rights Law (Cambridge: Cambridge University Press, 2012), p. 146.
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30
See Bellamy and Reike, ‘The Responsibility to Protect and International Law’, p. 280-285; See also Louise Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, Review of International Studies, 34/3: 445-458 (2008), p. 451-455.
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31
Ibid., p. 282. See also Glanville, ‘On the Meaning of “Responsibility” in the Responsibility to Protect’, p. 491; Alain Pellet, ‘Les résolutions 1973 et 1975 (2011) du Conseil de Sécurité: une mutation tranquille’, European Society of International Law Newsletter 12/22, May 2011: http://www.esil-sedi.eu/english/May%202011%20Newsletter.pdf [accessed 28 July, 2013].
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33
Peters, ‘The Security Council’s Responsibility to Protect’, pp. 26 and 52: Peter’s work assesses the legal implications that would flow from the transformation of the responsibility to protect principle into a legal norm imposing a duty to intervene. She concludes that the responsibility to protect principle has not yet reached the status of legal norm. See also Vera Gowlland-Debbas, ‘Security Council Change: The Pressure of Emerging International Public Policy’, International Journal, 65/1: 119-139 (2009-2010), p. 138.
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35
Ibid., pp. 9 and 25.
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36
Bellamy and Reike, ‘The Responsibility to Protect and International Law’, p. 269; Silva D. Kantareva, ‘The Responsibility to Protect: Issues of Legal Formulation and Practical Application’, Interdisciplinary Journal of Human Rights Law, 6/1: 1-25 (2011-2012), p. 2; Peters, ‘The Security Council’s Responsibility to Protect’, p. 52.
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37
Strauss, ‘A Bird in the Hand is Worth Two in the Bush – on the Assumed Legal Nature of the Responsibility to Protect’, p. 293.
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38
Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, European Journal of International Law, 16/5: 879-906 (2005), p. 884.
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39
Strauss, ‘A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Nature of the Responsibility to Protect’, p. 293; Hanna Bokor-Szegö, The Role of the United Nations in International Legislation (Amsterdam: North-Holland, 1978), p. 51.
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43
Ian Brownlie, ‘Principles of Public International Law’, p. 691.
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45
North Sea Continental Shelf, p. 44.
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46
Crawford, ‘Brownlie’s Principles of Public International Law’, p. 24; Brian D. Lepard, Customary International Law: A new Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), p. 172.
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47
Lepard, ‘Customary International Law: A New Theory with Practical Applications’, p. 182.
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51
S/RES/1970, 26 February 2011.
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53
S/RES/1973, 17 March 2011, paras. 4 and 6.
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56
Edward C. Luck, ‘The Responsibility to Protect: The First Decade’, p. 392.
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61
Zifcak, ‘The Responsibility to Protect after Libya and Syria’, p. 3.
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62
See Pierre Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’, pp. 13 and 14: ‘Resolution 1973 is clearly written in the spirit of an intervention to prevent gross human rights violation […]’.
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64
A/RES/65/265, 3 March 2011, para. 1.
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66
S/PV.6490, 25 February 2011, p. 3.
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69
S/RES/1564, 18 September 2004, preamble para. 10.
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72
S/RES/1706, 31 August 2006, preamble para. 2: In this resolution, expending UNMIS’ mandate, the Security Council reaffirms the responsibility to protect concept by recalling the relevant provisions of the Outcome Document.
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74
Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into The Responsibility to Protect’, Ethics & International Affairs, 25/3: 255-262 (2011), p. 255.
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75
Andrew Garwood-Gowers, ‘China and the “Responsibility to Protect”: The Implications of the Libyan Intervention’, Asian Journal of International Law, 2/2: 375393 (2012), p. 386.
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78
Michael Doyle, ‘The Folly of Protection: Is Intervention against Qaddafi’s Regime Legal and Legitimate?’, Foreign Affairs, 20 March 2011: http://www.foreignaffairs.com/articles/67666/michael-w-doyle/the-folly-of-protection [accessed 28 July 2013].
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81
Marie-José Domestici-Met, ‘Protecting in Libya on Behalf of the International Community’, Goettingen Journal of International Law, 3/3: 861-889 (2011), p. 886.
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82
Jeremy Farrall, United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007), p. 82. Farrall discusses Security Council’s practice in making a determination of a threat to international peace and security when imposing sanctions. He argues that a plausible interpretation of the Security Council’s omission to make such a determination in certain cases is that ‘the Council’s decision to invoke Chapter VII and impose sanctions must amount to an implicit determination under Article 39’, p. 84.
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87
A/65/PV.76, 1 March 2011, p. 3.
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92
Kantareva, ‘The Responsibility to Protect: Issues of Legal Formulation and Practical Application’, p. 11; Ban Ki-moon, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2012/376, 22 May 2012, p. 5. In his report, Ban Ki-moon distinguishes between the protection of civilians, a legal concept, and the responsibility to protect, a political concept.
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95
Powell, ‘Libya: A Multilateral Constitutional Moment?’, p. 298.
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96
S/PV.6491, 26 February 2011, p. 5.
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97
S/PV.6498, 17 March 2011.
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98
S/PV.6491, p. 3.
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100
S/PV.6491, p. 7-8.
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101
Saira Mohamed, ‘Taking Stock of the Responsibility to Protect’, Stanford Journal of International Law, 48/2: 319-339 (2012), p. 334.
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102
Ibid., p. 333.
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104
S/PV. 6498, p. 10.
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105
Andrew Garwood-Gowers, ‘China and the “Responsibility to Protect”: The Implications of the Libyan Intervention’, p. 387.
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107
S/PV.6498, p. 4.
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110
Ibid., p. 7 and 8.
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111
Ibid., p. 9.
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112
Ibid., p. 3.
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113
Pierre Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’, p. 22.
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The Normative Status of the Responsibility to Protect after Libya*
In: Global Responsibility to ProtectThe responsibility to protect concept has evolved rapidly in the last decade but its normative and legal status is still disputed. This paper assesses the degree of recognition the concept has attracted since its inception and the significance of resolutions 1970 and 1973 for the transformation of the responsibility to protect into a new norm of customary international law. It argues that despite claims about the centrality of the concept in the decision to intervene in Libya, the language of both resolutions, and the statements made by members of the Security Council surrounding their adoption, indicate that member states did not consider that they were legally bound to protect the population of Libya. Consequently, the intervention in Libya has not promoted the development of a legal obligation upon the international community to protect the world’s populations against gross violations of human rights.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 593 | 64 | 7 |
| Full Text Views | 418 | 46 | 8 |
| PDF Views & Downloads | 357 | 95 | 20 |