The responsibility to protect as a duty of care in international law and practice

2008 ◽  
Vol 34 (3) ◽  
pp. 445-458 ◽  
Author(s):  
LOUISE ARBOUR

AbstractThis discussion focuses on the content of the responsibility to protect the norm. It specifically addresses the historical roots and development of the norm by describing its fundamental differences from the doctrine of humanitarian intervention. The legal heart of the responsibility to protect concept and questions of when and how the norm is engaged are also examined. Finally, the discussion explores the role that the UN institutions can play in interpreting and applying the norm, as well as the mechanisms of cooperation in protection available to the international community.

2017 ◽  
Vol 1 (1) ◽  
pp. 51-67
Author(s):  
Irawati Handayani

AbstractHuman rights issues have become a common topic that continuously being discussed around the world. The major concern of international community on the protection of basic human rights leads to a challenge for the nation state to fulfill its commitment to protect the basic rights of their people from the possibility of harm that comes from internally or externally. Meanwhile, the principle of mutual understanding and respect among states and non-interference to domestic affairs of particular state has been generally recognized as the main principle in international law. Sometimes, a conflict that occurred inside a state, which is theoretically becomes a domestic issue, could be escalated and become a mutual concern of international society. When a human right violation occurred inside a state, ideally international community can not only ‘sit and watch’. Especially when the violations are classified as grave breaches of human rights. The world community has a moral obligation to offer an assistance and search a solution to end that violations.It is cleary noted that Article 2 (4) and Article 2 (7) United Nations (UN) Charter should not be regarded as an absolute prohibition of interference. Those articles are the limitation so that the intervention should not endangered territorial integrity, political independence and not contrary to the purposes of UN. However, the territorial integrity would be broken if the state lose their territory permanently, and in the context of humanitarian intervention there is no taking over a territory, since the main purpose is only to restore the condition as a result of human rights violation that occurred. Based on this assumption so intervention not contrary to UN Charter. One thing should be emphasized is that the requirements for intervention have to be very clear.Following an unsettled debate on criterion of humanitarian intervention, a few years ago there were a new concept which is believed as an improvement or a ‘new face’ from humanitarian intervention. It called the doctrine of Responsibility to Protect. Generally, both of these concepts have similarity, especially with the main purpose on guarantee basic human rights and provide such protection when the authorized government is unable and unwilling to do so. However, the RtoP doctrine can not also avoid its controversy. The main discussion on this doctrine particularly questioning the legal status of this doctrine in international law and whether RtoP is only a new form of humanitarian intervention.Keywords: humanitarian internvention, responsibility to Protect (R2P), duty to protect, non intervention, customary international law.AbstrakIsu mengenai HAM telah menjadi topik umum yang terus menerus didiskusikan diseluruh dunia. Perhatian utama dari komunitas internasional dalam hal perlindungan mendasar HAM selanjutnya menantang negara-negara untuk melakukan pemenuhan komitmen mereka agar melakukan perlindungan hak-hak mendasar dan tindakan yang dapat mengancam baik secara internal maupun secara eksternal. Sementara itu prinsip salaing pengertian dan penghargaan antar negara, prinsip non-intervensi dalam hubungan domestik telah diakui sebagai prinsip utama dalam hukum internasional. Kadang, konflik yang lahir di dalam negeri, yang secara teori adalah konflik domestik, dapat menjadi perhatian bersama masyarakat internasional. Pada saat terjadi pelanggaran HAM didalam suatu negara, seharusnya komunitas internasional tidak hanya ‘duduk dan melihat’. Khususnya pada saat terjadi pelanggaran yang dikategorikan sebagai pelanggaran berat terhadap HAM. Komunitas negara mempunyai kewajiban moral untuk menawarkan bantuan dan mencari solusi untuk mengakhiri pelanggaran tersebut.Seperti yang dijelaskan dalam Pasal 2 (4) dan Pasal 2 (7) Piagam PBB, pasal-pasal ini tidak dapat diangap sebagai larangan absolut interfensi. Pasal-pasal tersebut adalah pembatasan sehingga intervensi tidak membahayakan inegritas wilayah, indpendensi politik dan tidak bertentangan dengan tuujuan PBB. Meskipun demikian, integritas wilayah dapat hilang apabila negara kehilangan wilayahnya secara permanen, dan dalam konteks intervensi kemanusiaan tidak ada pengambil alihan wilayah, karena tujuan utamanya hanya untuk mengembalikan kedaaan pada saat terjadinya pelanggaran HAM. Berdasarkan asumsi tersebut, maka intervensi tidak bertentangan dengan Piagam PBB. Hal lain yang harus diperjelas bahwa alasan intervensi haruslah jelas.Mengikuti perdebatan yang tidak kunjung sellesai tentang kriteria intervensi kemanusiaan, beberapa tahun yang lalu dibuatlah suatu konsep yang dianggap sebagai wajah baru dari intervensi kemanusiaan. Secara umum, kedua konsep ini mempunyai kesamaan, terutama dengan tujuan utama dalam menjamin HAM dan menyediakan sejumlah perlindungan pada saat pemerintah yang berwenang tidak mampu dan tidak dapat memberikan jaminan HAM. Meskipun demikian, Doktin RtoP tidak dapat terhindar dari kontroversi. Diskusi utama dari doktrin ini adalah pertanyaan tentang status hukum dari doktrin hukum internasional dan apakah RtoP merupakan bentuk lain dari intervensi kemanusiaaan. Kata kunci: intervensi kemanusiaan, tanggung jawab untuk melindungi (R2P), kewajiban perlindungan, non intervensi ̧ hukum kebiasaan internasional.


2010 ◽  
Vol 14 (1-2) ◽  
pp. 134-183 ◽  
Author(s):  
Sabine Hassler

This article examines the debate surrounding the responsibility to protect [R2P] with particular reference to the use of peacekeeping forces in that regard. Post-Cold War, human protection had expanded into a matter of international concern. Yet, where formerly humanitarian intervention was the mot du jour, a change in conceptual vocabulary led to the introduction of R2P and to a redefinition of sovereignty. Accordingly, the primary responsibility to protect its citizens rests with the sovereign state but, owing to international solidarity, the residual responsibility rests with the international community. Contextually, R2P is embedded in a continuum of responsibilities: prevent, react and rebuild. Proponents of the concept already see a norm in development. Still, divisions and confusion remain concerning the concept’s legal basis, its scope and its parameters. This is particularly relevant in view of peacekeeping forces, which have been increasingly deployed for humanitarian purposes. Because of ill-defined mandates and an overextension of resources, however, traditional peacekeeping is no longer suitable, lacking the resources, the personnel and the necessary expertise. To be able to fulfil the goals of R2P, peacekeeping will have to be redefined and the forces equipped with more robust mandates or fail.


2016 ◽  
Vol 22 (4) ◽  
pp. 897-919 ◽  
Author(s):  
Garrett Wallace Brown ◽  
Alexandra Bohm

Cosmopolitans often argue that the international community has a humanitarian responsibility to intervene militarily in order to protect vulnerable individuals from violent threats and to pursue the establishment of a condition of cosmopolitan justice based on the notion of a ‘global rule of law’. The purpose of this article is to argue that many of these cosmopolitan claims are incomplete and untenable on cosmopolitan grounds because they ignore the systemic and chronic structural factors that underwrite the root causes of these humanitarian threats. By way of examining cosmopolitan arguments for humanitarian military intervention and how systemic problems are further ignored in iterations of the Responsibility to Protect, this article suggests that many contemporary cosmopolitan arguments are guilty of focusing too narrowly on justifying a responsibility to respond to the symptoms of crisis versus demanding a similarly robust justification for a responsibility to alleviate persistent structural causes. Although this article recognizes that immediate principles of humanitarian intervention will, at times, be necessary, the article seeks to draw attention to what we are calling principles of Jus ante Bellum (right before war) and to stress that current cosmopolitan arguments about humanitarian intervention will remain insufficient without the incorporation of robust principles of distributive global justice that can provide secure foundations for a more thoroughgoing cosmopolitan condition of public right.


2000 ◽  
Vol 14 ◽  
pp. 23-38 ◽  
Author(s):  
Richard Caplan

States have long taken exception to the notion of humanitarian intervention because it threatens to undermine a bedrock principle of international order: national sovereignty. In the case of Kosovo, however, NATO's nineteen member states chose not only to put aside their concerns for national sovereignty in favor of humanitarian considerations, but also to act without UN authorization. This essay examines the ways in which states – European states in particular – are rethinking historic prohibitions against humanitarian intervention in the wake of the Kosovo war. It focuses on two approaches:Efforts to reinterpret international law so as to demonstrate the legitimacy of humanitarian intervention andEfforts to build a political consensus regarding when and how states may use force for humanitarian endsWhile efforts to weaken prohibitions may succeed, thereby facilitating future interventions, resolution of the tension between legitimacy and effectiveness in defense of human rights will continue to elude the international community unless a political consensus can be achieved.


2015 ◽  
Vol 6 (1) ◽  
pp. 87-117 ◽  
Author(s):  
Cherine Foty

The creation of the responsibility to protect doctrine reformulated the historical notion of humanitarian intervention. The new doctrine was centered around the principle of nonintervention, a basic precept of the u.n. Charter system, with its initial report explicitly excluding regime change disguised as humanitarian intervention as external to the scope of the doctrine. Military intervention was only to be the means of last resort after the exhaustion of several preliminary mechanisms. In its implementation, the broad mandate of the responsibility to protect has been harshly criticized because it opens the possibility for powerful States, often seeking regime change, to interfere in the domestic affairs of weaker States. This article will first discuss (i) the chronology and evolution of the doctrine, (ii) situating it in the context of the u.n. Charter prohibition on the use of force and articulating its nonbinding nature. It will then examine (iii) the cases of Libya and Syria, focusing on the initial decision to intervene and how the dissemination of misinformation has served to promote military interventions where they would otherwise be considered illegitimate. The article will conclude with a brief discussion of (iv) how the international community can move beyond misapplication and seek to limit its abuse.


Author(s):  
Franchini Daniel ◽  
Tzanakopoulos Antonios

This contribution discusses the forcible intervention by NATO against Serbia in 1999 in response to the situation in Kosovo. It sets out the facts and background of the crisis, along with the legal positions of the main protagonists and the reactions of the international community. It then proceeds to survey the debates surrounding the legality of the intervention and to assess the soundness of the legal justifications put forward by states and authors. Finally, it discusses the precedential value of the intervention, especially in view of claims of the existence or emergence of a rule or principle of international law permitting the unilateral use of force in response to humanitarian crises. The contribution concludes that the NATO intervention has significant precedential value in that it confirms the unlawfulness of forcible unilateral humanitarian intervention.


2001 ◽  
Vol 50 (3) ◽  
pp. 613-631 ◽  
Author(s):  
Matthias Ruffert

The intensive debate about the legality of NATO air strikes from March to June 1999 in the context of use of force, Chapter VII competences and humanitarian intervention1 including their implication in the domestic constitutional law of NATO members,2 may be concealed another development the importance of which in modern Public International Law should not be underestimated: since the time when the Yugoslav/Serbian army left Kosovo, the province has been under direct administration by the international community.3 Only a little time later the same phenomenon of international administration came into being in East-Timor, a Portuguese colony until 1975 and claimed by Indonesia afterwards.4


2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.


Author(s):  
Nicole Scicluna

This chapter explores the justness, legitimacy, and legality of war. While 1945 was a key turning point in the codification of jus ad bellum (i.e. international law on the use of force), that framework did not emerge in a vacuum. Rather, it was the product of historical political contingencies that meant that codification of the laws of war was contemporaneous, both geographically and temporally, with the solidification of the norms of sovereign nation-statehood and territorial integrity. The chapter focuses on the UN Charter regime and how it has shaped the politics of war since 1945. Importantly, the Charter establishes a general prohibition on the use of force in international relations. It also grants two exceptions to the prohibition: actions undertaken with Security Council authorization and actions taken in self-defence. Today, many of the most serious challenges to the Charter regime concern the definition and outer limits of the concept of self-defence. Another set of challenges to the Charter regime concerns the contested concept of ‘humanitarian intervention’. The chapter then looks at the development of the ‘Responsibility to Protect’ doctrine.


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