Peters - The Security Council's Responsibility to Protect

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© Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/157237411X584075

The Security Council’s Responsibility to Protect

Anne Peters

Prof. Dr iur., LL.M (Harvard), Professor of International and Constitutional Law, University of Basel, Switzerland

[email protected]

AbstractThe objective of this paper is to spell out the legal consequences of the concept “responsibility to protect” (R2P), postulated as a binding legal principle of international law, for the Security Council and its members. The paper is a thought experiment, because the binding legal force of R2P is not settled. My argument is that, once R2P is accepted as a full-fledged legal principle, the Security Council (and its members) would be under a legal obligation to authorize or to take sufficiently robust action in R2P situations. The paper then discusses the problems engendered by the acceptance of such a material obligation and suggests a procedural obligation to justify inaction instead.

Keywordsresponsibility to protect (R2P); Security Council; sovereignty; veto; international responsibility of international organizations; permanent members; Libya; Côte d’Ivoire

1. Introduction

The Security Council’s Resolutions 1970, 1973 and 1975 of February and March 2011 on massacres committed by the Libyan leader Qadhafi against the Libyan population, and on the post-electoral crisis in Côte d’Ivoire, have endorsed the “responsibility to protect” (R2P).1 Already in Resolution 1970 of

1) See, in scholarship, R. Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge University Press, Cambridge, 2006) esp. chapter 11 (pp. 244–263); Société française pour le droit international (ed.), Colloque de Nanterre, La responsabilité de protéger (Pedone, Paris, 2008); C. Verlage, Responsibility to Protect

International Organizations Law Review 8 (2011) DOI: 10.1163/157237411X584075

2Peters / International Organizations Law Review 8 (2011)

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26 February 2011, the Council recalled “the Libyan authorities’ responsibility to protect its population”.2 In his press statement on this resolution, the permanent representative of France to the UN insisted on the concomitant subsidiary obligation of the international community: “If a government is not able to protect its own population, it means that the international community has the right and the duty to step in”, Ambassador Araud said.3

This postulate was realised with Resolution 1973 of 17 March 2011. Here the Security Council reiterated “the responsibility of the Libyan authorities to protect the Libyan population”.4 The resolution “stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people”,5 and “authorizes Member States … to take all necessary measures, … to protect civilians and civilian populated areas under the threat of attack … while excluding a foreign occupation force of any form on any part of Libyan territory, …”.6

(Mohr Siebeck, Tübingen, 2008); G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Brookings Institution Press, Washington DC, 2008); A. Bellamy, A Responsibility to Protect: the Global Effort to End Mass Atrocities (Polity Press, Cambridge, 2009). This paper builds on thoughts first developed in A. Peters, “The Responsibility to Protect: Spelling out the Hard Legal Consequences for the UN Security Council and its Members”, in U. Fastenrath et al (eds.), Essays in Honour of Bruno Simma (Oxford University Press, Oxford, 2011) pp. 297–325. I thank Nina Blum for helpful criticism on my draft.2) Preamble. The Council considered that the widespread systematic attacks of armed forces against the civilian population may amount to crimes against humanity (preamble). Here the Council “calls for steps to fulfil the legitimate demands of the population” (para. 1) and “urges the Libyan authorities to respect human rights and international humanitarian law” (para. 2a) The resolution referred the situation in Libya to the ICC, imposed an arms embargo, and a travel ban and an asset freeze for designated members of the Qadhafi family and other politicians.3) Gérard Araud, Remarks to the press on the adoption of Resolution 1970, 26 February 2011 (emphasis added). See, on Libya as an R2P case and on the obligation of the Security Council to take action, A. Peters, “Die Pflicht zum Eingeifen”, Neue Zürcher Zeitung, No. 48, 26 February 2011, p. 7.4) Preamble. Resolution 1973 was adopted by a vote of ten with five abstentions (Brazil, China, Germany, India and Russia).5) Para. 2.6) Para. 4. The resolution further established a no-fly zone in Libyan airspace, contained further provisions to enforce the arms embargo, imposed a ban on flights by Libyan-registered aircrafts, and extended the asset freeze.


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Resolution 1975 of 30 March 2011 on the post-electoral crisis in Côte d’Ivoire condemned “the serious abuses and violations of international law in Côte d’Ivoire, … reaffirming the primary responsibility of each State to protect … civilians …”.7 The Security Council “urges [the defeated president] Gbagbo immediately to step aside”.8 The Council stressed its full support given to the United Nations Mission in Côte d’Ivoire (UNOCI) “to use all necessary means to carry out its mandate to protect civilians under imminent threat of physical violence”, and called upon all parties to cooperate fully with UNOCI and the supporting French forces.9

Alain Pellet has qualified Resolutions 1973 and 1975 as a “quiet mutation”, as “moving far beyond the timid conception of the responsibility to protect as cautiously promulgated” by preceding General Assembly texts and as “making the leap” towards a “collective obligation of states to help and repair in situations of urgency”. Resolutions 1973 and 1975 “begin to make this ardent obligation real.”10

The objective of this paper is to spell out the legal consequences of R2P, postulated as a binding legal principle of international law, for the Security Council and the members of the UN. My argument is that, once R2P is accepted as a full-fledged legal principle, the Security Council (and UN members) would be under a legal obligation to authorise or to take sufficiently robust action in R2P situations. The paper then discusses the problems engendered by the acceptance of such a material obligation and suggests a procedural obligation to justify inaction instead.

This issue is salient, because the real problem is not that the United Na-tions would intervene too often, but that the Security Council has abstained from authorising military activities even in situations where the qualitative threshold for triggering what later became called R2P had been reached. It is a historical fact that the Security Council has failed to prevent and to stop genocide in Rwanda and Srebrenica. The two inquiry reports on those events

7) SC Res. 1975, preamble.8) Para. 3.9) Paras. 6 and 7. Both of the UN Secretary-General’s Special Advisors, on the prevention of genocide and the responsibility to protect, have reminded all parties of their responsibility to protect all persons in Côte d’Ivoire (UN press release, 29 December 2010).10) A. Pellet, “Les resolutions 1973 et 1975 (2011) du Conseil de Sécurité. Une mutation tranquille”, European Society of International Law, Newsletter 12, May 2011 (author’s translation).


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in both cases blamed the Security Council and explicitly found the body to be “responsible”.11 In 1994 and 1995, that responsibility was not a legal one. Security Council hesitation and inaction then did not constitute a breach of a legal obligation. Under the reign of the new principle of R2P, it might.

2. Content of R2P

In the General Assembly’s World Summit Outcome Document of 2005, R2P has been defined as follows:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

11) On Rwanda: Report of the independent inquiry into the actions of the United Nations during the 1994 genocide in Rwanda (Carlsson Report), 16 December 1999 (UN Doc S/1999/1257) p. 32: “Not least, the Security Council itself bears the responsibility for the hesitance to support new peacekeeping operations in the aftermath of Somalia, and specifically in this instance for having decided to limit the mandate of the mission in respect to the weapons secure area.” At pp. 37–38: “The decision by the Security Council on 21 April to reduce UNAMIR to a minimal force in the face of the killing which were by then known to all, rather than to make every effort to muster the political will to try and stop the killing has led to widespread bitterness in Rwanda. It is a decision which the Inquiry finds difficult to justify. The Security Council bears a responsibility for its lack of political will to do more to stop the killing … The delay in decision-making by the Security Council was a distressing show of lack of unity in a situation where rapid action was necessary. Almost three weeks after the Secretary-General’s letter, the Council finally authorized UNAMIR II on 17 May … The delay in identifying the events in Rwanda as a genocide was a failure by the Security Council.” On Srebrenica: Report of the Secretary-General pursuant to General Assembly Resolu-tion 53/55, 15 November 1999 (UN Doc A/54/549) para. 501: “The international community as a whole must accept its share of responsibility for allowing this tragic course of events by its prolonged refusal to use force in the early stages of the war. This responsibility is shared by the Security Council, the Contact Group and other Governments, which contributed to the delay in the use of force, as well as by the United Nations Secretariat and the mission in the field … The cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively and with all necessary means, and with the political will to carry the policy through to its logical conclusions …”.


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139. The international community, through the United Nations, also has the respon-sibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as ap-propriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. […].12

Security Council Resolutions (SC Res. 1674,13 SC Res. 1706,14 and SC Res. 176915) confirmed the Summit Outcome Document, and Resolutions 1973 and 1975 implemented it in practice.

Historically, R2P had been invented to replace the highly controversial concept of humanitarian intervention by shifting the terms of the debate from sovereignty as control to sovereignty as responsibility and from a right to intervene to a responsibility to protect (if need be, through intervention).16 From that perspective, R2P is not an adversary of sovereignty, but its ally. The focus is no longer on the state’s duty to refrain from action and intervention,

12) Resolution adopted by the General Assembly, World Summit Outcome Document, 24 October 2005 (UN Doc A/RES/60/1) paras. 138–139.13) Res. 1674 (2006) on the protection of civilians in armed conflict, para. 4, reaffirms the provisions of paras. 138 and 139 of the World Summit Outcome Document, supra note 12.14) The preamble of Res. 1706 (2006), on the crisis in Darfur, recalls Res. 1674 “which reaffirms, inter alia, the provisions of paragraphs 138 and 139 of the World Summit Outcome Document”, supra note 12.15) Res. 1769 (2007) on Darfur only reaffirms Res. 1674 in its preamble, but does not mention the World Summit Outcome Document, supra note 12.16) See, seminally, F. M. Deng et al, Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution Press, Washington DC, 1996); International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (2001), <http://www.iciss.ca/pdf/Commission-Report.pdf>, paras. 1.39–1.41; 2.14; 2.28–2.29. See, for a first assessment of this paradigm shift, A. Peters, “Le droit d’ingérence et le devoir d’ingérence: vers une responsabilité de protéger”, 79 Revue de Droit International et de Droit Comparé (2002) pp. 290–308. See, critically, J. Alvarez, “The Schizophrenias of R2P”, in P. Alston and E. Macdonald (eds.), Human Rights, Intervention, and the Use of Force (Oxford University Press, Oxford, 2007) pp. 275–284.


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but inversely on a possible mandate of an international response.17 This shift has been encapsulated in the slogan: “From non-intervention to non-indifference.”

The initially broad and fuzzy scope of R2P, as suggested in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS)18 has in state practice been narrowed and more precisely circum-scribed. It is now agreed that the responsibility to protect populations relates (only) to the core crimes as defined in articles 6–8 of the ICC Statute (geno-cide, war crimes, and crimes against humanity including ethnic cleansing).19 It is also clear that the responsibility first of all rests on the territorial state. Finally and most importantly, states have accepted the residual responsibility of the international community: If the territorial state is unwilling or unable to grant protection, it is for the international community to step in.

From 2001 to 2009, the conceptual design of R2P has been slightly modi-fied. In the ICISS Report, R2P was conceived as a responsibility to prevent, to react and to rebuild.20 At the Millennium Summit of 2005, the heads of state and government advanced a three-pillar strategy consisting in pillar one: protection responsibilities of states, pillar two: international assistance and capacity-building, and pillar three: timely and decisive response. The 2009 Report of the Secretary-General on Implementing the Responsibility to Protect,21 which was endorsed by the General Assembly,22 confirmed this

17) See, in favour of third states’ duty to protect, M. Bettati and B. Kouchner, Le devoir d’ingérence (Denoel, Paris, 1987). See, for philosophical arguments, K.-C. Tan, “The Duty to Protect”, in T. Nardin and M. S. Willams (eds.), Humanitarian Intervention (New York University Press, New York, 2006) pp. 84–117; D. Rodin, “The Responsibility to Protect and the Logic of Rights”, in O. Jutersonke and K. Krause (eds.), From Rights to Responsibilities: Rethinking Interventions for Humanitarian Purposes (Programme for Strategic and Inter-national Studies, Geneva, 2006) pp. 45–60.18) ICISS, supra note 16.19) Scholarly debate continues about responsibility to protect populations against natural disasters. See the section “Responsabilité de protéger et catastrophes naturelles: l’émergence d’un régime?” in Société française, supra note 1, pp. 149–185; J. Wong, “Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism”, 84 Tulane Law Review (2009) pp. 219–263.20) ICISS, supra note 16.21) Secretary-General, Implementing the Responsibility to Protect, 12 January 2009 (UN Doc A/63/677) paras. 49–65 (Pillar three: timely and decisive response).22) GA Res. 63/208 (3 February 2009) takes note of the Secretary-General’s Report of 2009.


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pillar-structure. Overall, the concept is now framed as “narrow but deep”, in the words of the Secretary-General.23

3. The Legal Quality of R2P

While the (rather narrow) scope, substance and pillar-structure of the concept of a responsibility to protect are meanwhile settled, its precise legal status is not. It remains controversial whether R2P is a hard and fast legal obligation, only a political concept,24 soft law,25 or an emerging legal norm.26 In a three-day long General Assembly debate in July 2009 on R2P,27 in which 49 states took the floor, five delegations explicitly considered R2P not to be a legal principle.28 That opinion was also expressed in a “concept note” of the then President of the UN General Assembly, Miguel d’Escoto Brockman.29 Liechtenstein called R2P a “political commitment of the highest order”.30 In contrast, Canada explicitly found R2P to be a legal principle,31 and Bangladesh called it an “emerging normative framework”.32

23) Secretary-General 2009, supra note 21, para. 11(c).24) In that sense, see A. Clapham, “Responsibility to Protect – Some Sort of Commitment”, in V. Chetail (ed.), Conflits, sécurité et cooperation / Conflicts, Security and Cooperation: Liber Amicorum Victor-Yves Ghebali (Bruylant, Brussels, 2007) pp. 169–192 at p. 191.25) J. M. Welsh and M. Banda, “International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?”, 2 Global Responsibility to Protect (2010) pp. 213–231 at p. 230.26) In that sense, see S. Szurek, “La responsabilité de protéger, nature de l’obligation et responsabilité internationale”, in Société française, supra note 1, pp. 91–134 at p. 93.27) GAOR (A/63/PV.97-100) of 23, 24 and 28 July 2009.28) Brazil (A/63/PV.97, p. 3); Guatemala (A/63/PV.97, p. 14); Morocco (A/63/PV.98, p. 13); China (A/63/PV.98, p. 24); Venezuela (A/63/PV.99, p. 9); Monaco (A/63/PV.99, p. 12).29) Office of the President of the General Assembly, Concept note on the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, 17 July 2009, p. 1: “It is therefore, amply clear, that there is no legally binding commitment and the General Assembly is charged, in terms of its responsibility under the Charter to develop and elaborate a legal basis.”30) A/63/PV.97, p. 22.31) A/63/PV.98, p. 26: “We have at our disposal a sophisticated normative legal framework based on international law.”32) A/63/PV.100, p. 22.


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Many proponents of a legal obligation argue that R2P (with the narrow contents now accepted) is rooted in pre-existing treaty obligations,33 notably in common article 1 of the 1949 Geneva Conventions, article I of the 1948 Genocide Convention, and in the Human Rights Covenants which embody positive duties to protect persons from inhuman acts committed by private actors, in part explicitly obliging states parties to prevent such acts beforehand.34 The opinion that R2P flows from existing treaty law was clearly expressed by seven states in the General Assembly.35 Some scholars opine that the concept does not add anything new and might therefore be superfluous or even dangerously misleading.

The relevant documents employ an ambiguous language to describe the binding force and the legal character of the responsibility to protect.36

33) See E. C. Luck, Special Adviser to the Secretary-General, “Remarks to the General Assembly on the Responsibility to Protect”, New York, 23 July 2009, p. 3: “[I]t is a political, not legal, concept based on well-established international law and the provisions of the UN Charter.” L. Arbour, “The Responsibility to Protect as a Duty of Care in International Law and Practice”, 34 Review of International Studies (2008) pp. 445–458 at pp. 447–448 and 450: “anchored in existing law”, and resting upon the undisputed obligation to prevent and punish genocide. See also L. Boisson de Chazournes and L. Condorelli, “De la ‘responsabilité de proteger’ ou d’une nouvelle parure pour une notion déjà bien établie”, 110 Revue Générale de Droit International (2006) pp. 11–18. The authors argue that R2P does not go beyond the obligation to respect and to ensure respect under international humanitarian law (common art 1 of the Geneva Conventions) and is therefore nothing new.34) See article 2 of the Anti-Torture Convention of 1984.35) New Zealand (A/63/PV.97, p. 25); Netherlands (A/63/PV.97, p. 26); Austria (A/63/PV.98, p. 1); Switzerland (A/63/PV.98, p. 5); Nigeria (A/63/PV.98, p. 26); Mexico (A/63/PV.99, p. 18); Sri Lanka (A/63/PV.100, p. 2). Chile made this statement with regard to the territorial states’ obligations (A/63/PV.98, p. 10). 36) For example, ICISS, supra note 16, para. 2.24 states: “While there is not yet a sufficiently strong basis to claim the emergence of a new principle of customary international law, growing state and regional organization practice as well as Security Council precedent suggest an emerging guiding principle”. In the French version of the text, the term is “est apparu”. Para. 6.17 again speaks of the “emerging guiding principle” of R2P, “a principle grounded in a miscellany of legal foundations (human rights treaty provisions, the Genocide Convention, Geneva Conventions, International Criminal Court Statute and the like), growing state practice – and the Security Council’s own practice.” This is inconsistent. Either R2P is an already existing norm, or it is only emerging. High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 2 December 2004 (UN Doc A759/565) para. 203 calls R2P an “emerging norm”, whereas the French version speaks of a “nouvelle norme”.


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The Secretary-General stated in his 2009 Report: “I believe that we must embrace the responsibility to protect, and, when necessary, act on it.”37 In the World Summit Outcome Document, the heads of state spelled out the responsibility of states (para. 138) towards their populations as a strict obligation, and committed themselves: “We accept that responsibility and will act in accordance with it.”38 In contrast, the responsibility of the “international community, through the United Nations” (para. 139) is less rigid. The paragraph addresses measures under Chapters VI and VIII of the UN Charter on the one hand, and collective action under Chapter VII on the other. Only with regard to peaceful and consensual measures under Chapters VI and VIII, the document states that the United Nations “also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means.” With regard to coercive measures under chapter VII, a weaker phrase is used: “We are prepared to take collective action, in a timely and decisive manner, through the Security Council”. During the drafting history, this weak phrase was inserted specifically to substitute a stronger language of obligation.39

My position is that although the idea can partly be based on existing international law, it is not legally superfluous, because it pulls pre-existing norms together and places them in a novel framework. The innovation is mainly conceptual.40 One important innovation is the establishment

37) Secretary-General 2009, supra note 21, para. 135.38) World Summit Outcome Document, supra note 12, para. 138: “Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”39) A previous version of that paragraph contained the phrase: “we recognize our shared responsibility to take collective action”. This was deleted, inter alia upon the intervention of the United States, who had argued that “we should avoid language that focuses on the obligation or responsibility of the international community and instead assert that we are prepared to take action.” (See the Letter of the Permanent Representative of the United States of America to the United Nations (30 August 2005)). Also, the French version of the World Summit Outcome Document, supra note 12, para. 138 uses the term “incombe” and avoids the term “responsible”. I thank Nicolas Michel for drawing my attention to the language divergences in the documents.40) In this sense, see also A. von Arnauld, “Souveränität und Responsibility to Protect”, 84 Die Friedens-Warte (2009) pp. 11–52 at pp. 39 and 42; S. Rosenberg, “Responsibility to Protect: A Framework for Prevention”, 1 Global Responsibility to Protect (2009) pp. 442–477 at p. 448.


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of a relation between the different types of addressees. R2P for the first time clearly states that when the territorial state manifestly fails to fulfil its obligation to protect, it falls upon the international community. This shift from the primary holder of the duty to the subsidiary bearer of responsibility has however not actually been explained, but merely postulated or taken for granted in the relevant documents. Indeed, the (temporary) transfer of responsibility to the “international community” must be, and can well be, justified by an additional set of arguments which provide the missing link.

That missing link is the concept of multilevel governance, bolstered by the international legal principle of solidarity. First, in the current global system of multilevel governance, competences and obligations should be allocated to that level of governance on which governance functions can be effectively performed. This idea is apt to justify the allocation of the residual responsibility to protect to actors “above” the territorial state. Second, solidarity as a legal or even “constitutional principle”41 provides the second justification for this shift, because “in order to be real, individual rights require a corollary collective obligation on the international community as a whole.”42 Seen through the lens of the law of solidarity, R2P “is one of the forms that international solidarity can take … the responsibility to protect gives legal expression to the notion of solidarity in the sense that it specifies the conditions of action for protecting shared values which are of a human rights nature.”43

So R2P is a novel construct which innovatively uses pre-existing legal principles as building blocks for a new edifice. This systematisation is apt to reinforce the normative power of those principles. The whole is more than the sum of the parts. R2P therefore has some added legal value, independent of whether it is qualified as a binding legal norm as such.

41) K. Wellens, “Solidarity as a Constitutional Principle: Its Expanding Role and Inherent Limitations”, in R. St. J. MacDonald and D. M. Johnston (eds.), Towards World Constitu-tionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff Publishers, Leiden, 2005) pp. 775–807.42) K. Wellens, “Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some further Reflections”, in R. Wolfrum and C. Kojima (eds.), Solidarity: A Structural Principle of International Law (Springer, Heidelberg, 2009) pp. 3–38 at p. 12.43) L. Boisson de Chazournes, “Responsibility to Protect: Reflecting Solidarity?” in Wolfrum and Kojima, supra note 42, pp. 93–109 at pp. 103 and 109.


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Another important observation is that the binding legal force of the principle differs depending on the addressees. This has been aptly realised by the then Permanent Representative of the United States of America to the United Nations, John Bolton, in a statement on a draft of the World Summit Outcome Document. Bolton clearly distinguished the nature of the obligations of the different actors, and denied any legal quality of the fall-back responsibility of the United Nations or third states:

[T]he international community has a responsibility to act when the host state allows such atrocities. But the responsibility of the other countries in the international community is not of the same character as the responsibility of the host … We do not accept that neither the United Nations as a whole, nor the Security Council, or individual states, have an obligation to intervene under international law.44

Indeed, the treaties and conventions mentioned above only address the contracting parties and oblige them to protect the human rights of persons under their jurisdiction. It therefore seems clear that a state in whose territory core crimes are imminent or ongoing is under a hard and fast obligation to react and suppress them.

In contrast, the postulated subsidiary obligation of the international community cannot easily be based on those treaties. First, international organizations are not contracting parties to these treaties. Second, for states it matters that these treaties have only a limited extraterritorial scope. The extraterritorial application of human rights treaties is normally linked to state parties’ “jurisdiction”, which only in specific circumstances extends outside the respective state’s territory, notably if a state exercises control over a territory or a person. In contrast, the treaty obligations to prevent and combat genocide seem to be extraterritorial, but the precise extension has as yet been defined only in a sketchy manner.45

Any responsibility to protect of bystanders therefore needs additional sup-port in international customary law. However, the World Summit Outcome Document of 2005, being a General Assembly resolution, does not in itself have binding force. But the debates leading to it and the text itself might

44) Letter of the US representative, 30 August 2005, supra note 39.45) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, International Court of Justice, Judgment, para. 430.


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manifest an opinio iuris or at least an opinio necessitatis which might be a first step towards a legal opinion. The practice of the Security Council, especially in its Resolutions 1973 and 1975 of 2011, is even more important, because its resolutions are binding. Creating such a bond expresses an opinio iuris. Finally, the UN practice of peacekeeping operations for the protection of civilians, and arguably the establishment of tribunals for the punishment of perpetrators of core crimes, might also count as relevant international practice leading to the formation of an international customary obligation to protect populations from those crimes.

To conclude, I submit that R2P is an established hard norm with regard to the host state, and an emerging legal norm with regard to other states and the United Nations. Although the term “responsibility” has the misleading con-notation of secondary norms, it refers to the primary level of international obligations.46 The responsibility to protect is an obligation to protect, which is breached by inaction, omissions, or by inadequate responses.

In the next sections, the bearers of the responsibility to protect, under-stood as a duty to protect, will be examined. The obligees are states and the United Nations. A different question, beyond the scope of this paper, is to whom the duty to protect is owed. Full cognisance of the paradigm shift operated by the concept of R2P probably implies that the creditors are individuals. Taking human security and the needs of individuals as a starting point, it could be argued that protection is owed to them.47 Such an individualised view would lead to the conclusion that, in the event of non-fulfilment of the duty to protect, and on the level of secondary obligations, the obligation to make reparation for damages resulting from inadequate protection would also be owed to individuals. In fact, the ICJ has en passant acknowledged in the Wall Opinion that reparations due for violation of international law may have to be made “to all natural or legal persons concerned”.48 However, the International Law Commission’s articles on the responsibility of states (hereafter: ILC Articles on State Responsibility) or of international organizations would not be directly applicable, because

46) Szurek, supra note 26, pp. 92, 94–97. 47) Cf. A. Peters, “Humanity as the A and Ω of Sovereignty”, 20 EJIL (2009) pp. 513–544.48) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, International Court of Justice, Advisory Opinion, ICJ Reports 2004, p. 136, para. 152.


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these provisions regulate only responsibility vis-à-vis other states, other international organizations, and “the international community as a whole” (article 33(1) of the ILC Articles on State Responsibility49; article 32(1) of the Draft Articles of the International Law Commission on Responsibility of International Organizations (DARIO)). With this caveat in mind, the relevant articles might still be pertinent and applicable by way of analogy.

4. The Security Council as one Bearer of the Responsibility to Protect

This paper concerns pillar three of R2P, the response by the Security Council. The Security Council has, since the inception of the concept R2P, been envisaged as a principal player. It was the Security Council which the ICISS Report experts had in mind when using the term “responsibility” rather than “obligation”. The idea was to link the new concept to article 24 of the UN Charter, which mentions the United Nations’ Security Council’s “primary responsibility for the maintenance of international peace and security”.

In his 2009 report on the implementation of R2P, the Secretary-General restated that the “timely and decisive response” comes into play when two conditions as spelled out in para. 139 of the World Summit Outcome Document are met: When national authorities have manifestly been failing to protect their population from the four specified crimes and violations, and when peaceful means have proven to be inadequate.50

The current governmental consensus is that the authority to take military action (once the national authorities have failed to protect their population) is reserved for the Security Council.51 Still, part of the reservations against

49) Art 33(2) of the ILC Articles on State Responsibility clarifies that the articles are “without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.” The commentary explains that “[i]t will be a matter for the particular primary rule to determine whether and to what extent persons or entities other than States are entitled to invoke responsibility on their own account.” J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries (Cambridge University Press, Cambridge, 2002), p. 210.50) Secretary-General 2009, supra note 21, para. 49. 51) The ICISS was ambiguous in this regard (see infra note 74). The later documents seem to foreclose interventions not authorised by the Security Council as a lawful option: High-level Panel, supra note 36, para. 203: “We endorse the emerging norm that there is a collective


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the concept of R2P has to do with lingering scepticism about the Council’s legitimacy and the ongoing debate about whether and how it should be reformed.52

In fact, a number of states raised the issue of the veto in the General Assembly’s R2P debate.53 Two states, Venezuela and Bolivia, expressly called for an abolishment of the veto power.54 Also the President of the General Assembly wrote in his concept note on R2P: “It is the veto and the lack of UN Security Council reform rather than the absence of a responsibility to protect [sic] legal norm that are the real obstacles to effective action.”55

But all considered, insistence on the Council’s monopoly for the authorisation of the legitimate use of force still seems the better choice, so to speak, between a rock and a hard place. This monopoly is in conformity with the legal position of the Council as the institution bearing the principal responsibility for world peace, and it is in political terms justifiable as a

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.” Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, 21 March 2005 (UN Doc A/59/2005) para. 135: “This responsibility lies, first and foremost, with each individual State, whose primary raison d’être and duty is to protect its population. But if national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect the human rights and well-being of civilian populations. When such methods appear insufficient, the Security Council may out of necessity decide to take action under the Charter of the United Nations, including enforcement action, if so required.” (emphasis added). World Summit Outcome Document, supra note 12, para. 139: “through the Security Council”.52) See M. Byers, War Law: Understanding International Law and Armed Conflict (Atlantic Books, London, 2005) pp. 110–111: “In a world where the use of force remains governed by the UN Charter and most countries still believe that the Security Council is functioning appropriately, conflict prevention is the only area where the responsibility to protect could add something new and useful … Proponents of the responsibility to protect who focus on military intervention are participating in a terrible charade.”53) Liechtenstein (A/63/PV.97, p. 22); Costa Rica (A/63/PV.97, p. 24); New Zealand (A/63/PV.97, p. 25); Switzerland (A/63/PV.98, p. 5); Norway (A/63/PV.99, p. 7); Rwanda (A/63/PV.99, p. 20); Swaziland (A/63/PV.100, p. 21); Benin (A/63/PV.100, p. 27).54) A/63/PV.99, p. 5 and 9.55) Concept note, supra note 29, p. 3.


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shield against unilateral interventions which are prone to abuse.56 On the other hand, the possibility of an abusive veto within the Council must be taken into account as well (see below part 6).

Within the framework of R2P, the Security Council may take robust action in order to protect populations from core crimes. Robust action means economic and military sanctions. Although the principle of proportionality forbids the Security Council to authorise any military intervention before peaceful strategies have been exhausted, the authorisation of military force is admissible as a last resort. This has been unduly drawn into question by the President of the General Assembly. His concept note refers to article 50(1)(a) of the ILC Articles on State Responsibility.57 This provision states that countermeasures shall not affect the obligation to refrain from use of force and thereby excludes countermeasures with military means. However, the third pillar of R2P, i.e. the response of the international community acting through the Security Council, is not a countermeasure in the sense of the ILC Articles, but a measure of collective security governed by Chapter VII UN Charter.

The crucial issue of Security Council action within the paradigm of R2P is not the allowance of military action. The salient point is rather that Security Council action, including coercive action, would no longer been a permissive authority (a “right”) but an affirmative obligation (a “duty”).

4.1. Security Council not Legibus Absolutus

If R2P is a legal or at least nascent legal principle, then the Security Council’s duty to take sufficiently robust action in an R2P situation is not only a moral

56) See, for a recent restatement of the international rules on humanitarian intervention, Institut de Droit International, session de Santiago (2007), 10th Commission, Present Problems of the Use of Force in International Law, sub-group on humanitarian intervention (prepared by M. W. Reisman). That report concludes that “[i]nternational law does not yet permit unilateral Humanitarian Interventions that have not been authorized by a competent organ of the United Nations, but recent practice indicates that this may be in the process of adjustment. It appears that in grave circumstances, unilateral Humanitarian Interventions that have not received the authorization of the United Nations may be deemed lawful.” (p. 201). The report also considers that in circumstances in which the Security Council is unable to discharge its obligation under Chapter VII, the General Assembly is competent to exercise its “secondary responsibility” and to authorise a humanitarian intervention (p. 201).57) Concept note, supra note 29, p. 3.


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duty, as the Secretary-General had postulated in his Millennium Report of 2000,58 but a legal one. The premise of any legal obligation on the Council to act is that this body is not a purely political organ acting in a law-free zone, but is subject to legal limits.

In contrast, a traditional reading of the UN Charter was that the Security Council was the quintessential political organ of the organization, and had full powers without international legal limits. This traditional view was defensible with the observation that pernicious consequences need not be feared. The danger of excessive or even abusive UN interventionism seemed nil, because in the real world, the permanent members’ antagonistic interests and their right to veto prevented such interventions.

However, in a constitutionalising international system, the traditional view of Security Council actions in a basically law-free realm is no longer tenable. The rule of law also governs decisions of the Security Council. The idea of legal limits to Security Council action was advanced by the ICJ as early as 1948 in the advisory opinion on the admission of new members to the UN. Here the Court’s majority had stated with regard to the Security Council that “[t]he political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment.”59 The view that the Security Council is “not legibus absolutus” has been forcefully confirmed in the ICTY Tadic decision.60 Because the UN enjoys international legal personality, it is itself bound by general customary

58) Secretary-General, Millennium Report, We the Peoples: The Role of the United Nations in the 21st Century, 27 March 2000, (UN Doc A/54/2000) para. 219 stated that “surely no legal principle – not even sovereignty – can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community”. The report continues: “The fact that we cannot protect people everywhere is no reason for doing nothing when we can. Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished.” (emphasis added).59) Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), 28 May 1948, International Court of Justice, Advisory Opinion, ICJ Reports 1948, p. 57 at p. 64. See also Dissenting Opinion of Judges Basdevant, Winiarski, Sir Arnold McNair and Read, at pp. 82–93, paras. 9, 20–25.60) Prosecutor v. Dusko Tadic, 2 October 1995, ICTY, Appeals Chamber, Case No IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras. 26–28.


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international law and by treaty obligations it incurs. The Security Council, as the most powerful organ of the organization, cannot be less subjected to legal obligations than the organization itself, although technically only the organization itself (being the international legal person) is the duty-bearer. The Security Council is bound at least by the “Purposes and Principles” of the Charter (cf. article 24(2) of the UN Charter), which include customary human rights law and the right to self-determination (cf. article 1(2) and (3) UN of the Charter).61 These rights are typically at risk in an R2P situation.

It is therefore consistent that both the High-level Panel on Threats, Challenge and Change and the Secretary-General formulated the narrow criteria for humanitarian military interventions not only with a view to unilateral action, but imposed them also or even primarily on Security Council-led humanitarian actions.62 The Panel had even proposed that the Security Council should adopt guidelines directing not only whether force could legally be used but also when force “as a matter of good conscience and good sense … should” be used.63

To conclude, the Security Council under current international law enjoys discretion, but this discretion is not unfettered.64 Discretion, as a legal and even constitutional concept, is per definitionem subject to some outer limits. Discretion is – in a way – the opposite of arbitrariness.

61) See, e.g., S. Lamb, “Legal Limits to United Nations Security Council Powers”, in G. S. Goodwill-Gill (ed.), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford University Press, Oxford, 1999), pp. 361–388; M. Wood, “The UN Security Council and International Law, Second Lecture: The Security Council’s Powers and their Limits”, Hersch Lauterpacht Memorial Lectures, Lauterpacht Centre for International Law, University of Cam-bridge, 7–9 November 2006, <http://www.lcil.cam.ac.uk/lectures/2006_sir_michael_wood.php>; K. Manusama, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality (Martinus Nijhoff Publishers, Leiden, 2006), pp. 3–46.62) High-level Panel, supra note 36, paras. 207–209; Secretary-General 2005, supra note 51, para. 126.63) High-level Panel, supra note 36, paras. 204–209. The Panel suggested that such guidelines be adopted in declaratory resolutions of the Security Council and of the General Assembly, and found it “valuable” that each member state subscribed to them as well.64) G. Cahin, “La notion de pouvoir discrétionnaire appliquée aux organisations interna-tionales”, 107 RGDIP (2003) pp. 535–600.


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4.2. Legal Limits on Inaction (Passivity)

The next step in the argument is that legal limits do not only apply to Security Council action, but also to its inaction. There is no reason to treat an explicit or implicit Council decision not to authorise robust action fundamentally differently from its decision to authorise a coercive measure. Both types of decisions cannot be clearly distinguished. Every decision to act is at the same time a decision not to act in a different manner, and vice versa.

The possibility of legal responsibility for inaction, omissions, or passivity is well established in all criminal legal systems,65 and also in tort law. Most importantly, it fits well into the human rights framework which, under all international instruments, gives rise to positive governmental obligations to protect human rights against interference by private actors.66 Governmental passivity is here apt to trigger state responsibility for the state’s lack of due diligence to prevent the violation or to respond to it with legal, political, and administrative means as required by the human rights conventions.67

Although the Council may in principle be held liable for passivity, the trigger or threshold may differ from the situation of rendering it responsible for action. This modification of responsibility is well known in criminal law, where sanctions for crimes committed through inaction normally presuppose a special position of responsibility of the actors and punishment is normally

65) See, e.g., Prosecutor v. Rutaganira, 14 May 2005, ICTR, Trial Chamber III, Case No ICTR-95-IC-T, paras. 61–91 on the complicity of a town counsellor in the crime of extermination through omission. The trial chamber saw the actus reus in the councillor’s failure to fulfil his legal duty, incumbent on him through his public office, to act in order to protect human life.66) In a seminal contribution, Henry Shue identified the following three duties flowing from all human rights: duties to avoid deprivation; duties to protect from deprivation; and duties to aid the deprived (H. Shue, Basic Rights (Princeton University Press, Princeton, 1980), pp. 35–64). Shue’s point was that so-called “negative” and “positive” rights have a similar structure. The three duties are meanwhile generally called obligations to respect, protect, and fulfil.67) UN Human Rights Committee, General Comment No. 31 [80], Nature of the General Legal Obligations imposed on State Parties to the Covenant, 26 May 2004 (CCPR/C/21/Rev.1/Add. 13) para. 8. For the ACHR, see Velásquez Rodriguez v. Honduras, 29 July 1988, Inter-American Court of Human Rights, Series C No. 4, paras. 172–177. See, on the ECHR, C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Springer Verlag, Berlin, 2003). See, for gender-based violence, M. Hakimi, “State Bystander Responsibility”, 21 EJIL (2010) pp. 341–385 at pp. 379–383; for a transfer of these principles to the context of R2P, see Rosenberg, supra note 40, pp. 453–459.


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less severe. In human rights law, the states’ obligation to intervene and protect persons against aggressions emanating, e.g., from private actors, is triggered only in extreme cases, where the need for state intervention is obvious. Moreover, the positive obligation to protect is normally not an obligation of result, but mostly an obligation of conduct. It requires the state to exercise due diligence, but not to guarantee absolute protection. For example, in the case law of the European Court of Human Rights, the member states’ positive duty to protect Convention rights is quite limited so as not to require the impossible or to impose a disproportionate burden upon the authorities.68

Once it is accepted that the United Nations is bound to international hu-man rights, parallel to states, the principles concerning protection developed for states can be transferred to the UN, acting through the Security Council. The need to avoid imposing a rigid standard and the need to respect the fact that public authorities must make (political) choices in terms of priorities and resources arise both for governments and for the Security Council.

In the Wall Opinion, the ICJ spelled out in very weak language an obliga-tion on the United Nations to react to serious breaches of international law. The Court was of the view “that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation”.69 However, the cautious stance of that advisory opinion need not be followed in R2P situ-ations. The opinion did not concern the core crimes but mainly a violation of the right to self-determination and human rights issues. It would still be reconcilable with that opinion to postulate a stricter obligation on the United Nations to react in the more serious case of genocide.

4.3. Legal Limits of Discretion

Under the rule of law, the Security Council’s manoeuvring space (i.e. in legal terms both its marge d’appréciation and its discretion) are limited on three different levels. The first level is the interpretation of the relatively imprecise notion “threat to the peace” in article 39 of the UN Charter, and its application to the facts. Since 1990, that notion has been continuously

68) Osman v. UK, 28 October 1998, European Court of Human Rights, Case No 87/1997/871/1083, Reports 1998-VII 3124, para. 116.69) Wall Opinion, supra note 48, para. 160.


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extended through Council practice. In that regard, it could be asked whether the Security Council is right in qualifying, for example, a natural catastrophe or terrorism as a “threat”. With regard to R2P, the inverse question arises, namely whether the Council is allowed not to call a situation a threat to the peace. In my view, just as there are limits to expanding the meaning of a legal term, there are also limits to narrowing it unduly. This means that a blatant failure to label a factual situation and to apply the appropriate legal concept to the facts means overstepping the legal limits of the leeway inherent in any interpretation and application of the law. Therefore, the Security Council is not completely free in assessing whether to qualify an R2P situation as a threat to the peace in terms of Chapter VII or not. It does enjoy a marge d’appréciation, but this is within limits. An ongoing genocide, for instance, must be qualified as a threat to the peace by the Security Council, and to refuse to do so would be an illegal act by the United Nations and by the Council members.

Once the precondition, namely the existence of a threat to the peace, has been established, the next question is the consequences. Also on this level, the Security Council’s discretion is limited. It is limited in deciding whether to take action at all, and what action. This means that the choice of means is not free. In the ultimate analysis, this could lead to a situation in which the only conceivable lawful exercise of discretion would be to authorise coercive military measures. This means that the concept R2P could give rise to an obligation on the Security Council to intervene in R2P situations. Article VIII of the Genocide Convention, which states that the United Nations’ organs must take “appropriate action” for the prevention of genocide, confirms this finding.

Non-intervention would then trigger the international responsibility of the United Nations.70 However, the idea of a legal responsibility of the United Nations itself for failing to act in the face of genocide might indeed be, as one critic put it, “absurdly premature and not likely to be affirmed

70) G. Gaja, Third Report on the Responsibility of International Organisations, 13 May 2005 (UN Doc A/CN.4/553) para. 10: Assuming that general international law requires other entities to prevent genocide, and assuming that the UN had been in a position to prevent the atrocities in Rwanda, “failure to act would have represented a breach of an international obligation. Difficulties relating to the decision-making process could not exonerate the United Nations.”


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by state practice.”71 The secondary obligations of the United Nations (inter-national responsibility of the organization) will therefore not be analysed further in this paper.

Instead, my analysis will focus on the Security Council members, and es-pecially on the P5. They might be legally obliged to vote positively. Whether such a positive obligation on the Council members exists as a matter of law and whether it is acceptable in political terms will be discussed next.

5. States as Bearers of the Responsibility to Protect

The obligation to react (somehow) in an R2P situation falls not only on the Security Council, being an organ of the UN, but on all states. Although the Security Council has, under article 24 of the UN Charter, the “primary responsibility” to safeguard international peace and security, which comprises the absence of human rights atrocities, it is not its exclusive responsibility. The responsibility to protect is the subsidiary responsibility of all states, including the members of Security Council (even if that organ is the first port of call on any matter relating to robust intervention for human protection purposes).

However, it is important to realise that although all states are, as members of the international community, obligees, the content of their obligations may be different.72 Individual states may not have an obligation to act unilaterally, but rather an obligation to cooperate with multilateral efforts to protect. Their obligations may range from mere non-recognition to financing measures to sending troops. What exactly is owed by bystanders in an R2P situation depends on parameters such as the kind and extent of harm occurring, the bystander state’s relationship with the abuser, and the bystander state’s capacity to influence effectively the action of persons likely to commit or already committing one of the core crimes. That capacity in

71) Alvarez, supra note 16, p. 12.72) See, for a systematic analysis of criteria to determine whether states, which states precisely and how states must satisfy their obligations to protect, Hakimi, supra note 67, pp. 341–385. See also Arbour, supra note 33, pp. 451–455, focusing on the criteria of influence, proximity, and information; Welsh and Banda, supra note 25, pp. 223–225; J. Pattison, Humanitarian Intervention and the Responsibility To Protect: Who Should Intervene? (Oxford University Press, Oxford, 2010), concluding that no current actor is fully legitimate to intervene, and that therefore reforms are required, for example the creation of a UN standing army or a rapid reaction force.


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turn depends on the geographical distance of the state concerned, on the strength of the political and other links between the authorities of that state and the main actors in the events, on the information at the disposal of the state, and also on legal criteria, because every state may only act within the limits permitted by international law. On the other hand, it seems irrelevant whether the means at the bystander’s disposal would have been in themselves sufficient to prevent the crimes.73

These possible criteria for assigning responsibility point to different solu-tions, and each has its drawbacks. For example, an actor with “special ties” might have its own agenda. The same applies to the criterion of geographical proximity. It might be undesirable that a hegemon takes action. Moreover, it is not clear whether knowledge translates into greater effectiveness. Finally, the focus on current capacity to act without a discussion about the distribution of the costs is not likely to be very sustainable. In any case, the responsibility to protect is only an obligation of conduct, not of result, which must be performed in due diligence.

So the responsibility (obligation) to react at all in the event of imminent or ongoing core crimes as such in principle falls upon all states, but with a different degree of intensity. Moreover, the admissible means to discharge it are modified. The choice of means may be legally limited. Certain measures remain illegal, even if they might be effective to counteract the harm. Most importantly, states are not, at least not according to the World Summit Outcome Document, entitled to take unilateral military action to discharge their obligation.74 But they must still react appropriately.

73) Cf. Genocide (Bosnia), supra note 45, para. 430 on the obligations of third states to prevent genocide. See, for reflection on the parameters of the “capacity to influence effectively” in the context of R2P, Rosenberg, supra note 40, pp. 467–469.74) The ICISS, supra note 16, was not sure about this. See para. 6.14: “… It is the Security Council which should be making the hard decisions in the hard cases about overriding state sovereignty … It is very clear that the central role of the Security Council will have to be at the heart of that consensus. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work much better than it has.” Para. 6.15: “… Security Council authorization must in all cases be sought prior to any military intervention action being carried out.” Para. 6.28: “We have made abundantly clear our view that the Security Council should be the first port of call on any matter relating to humanitarian intervention for human protection purposes. But the question remains whether it should be the last. In view of the Council’s past inability or unwillingness to fulfil the role expected of it, if the Security Council expressly rejects a proposal for intervention where


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The ILC Articles on State Responsibility lay down specific obligations of third states with regard to illegal acts committed by another state, but only in the event of a serious breach of a peremptory norm of international law.75 These rules are applicable to R2P situations, because the prohibition of genocide and respect for the fundamental guarantees of international humanitarian law are ius cogens. So the commission of the ICC core crimes normally results in a serious breach of a peremptory norm. Under article 41(1) of the ILC Articles on State Responsibility, “states shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.” The insistence by article 41 of the ILC Articles on State Responsibility on “lawful means” excludes the resort to military force in violation of article 2(4) of the UN Charter. So it is consistent with the ILC Articles on State Responsibility that the responsibility to protect as incumbent on third states, and understood as a confirmation of the ILC Articles’ obligation to cooperate, does not include unilateral recourse to force.76

Under article 41(2) of the ILC Articles on State Responsibility, third states must not “render aid or assistance” in maintaining that situation. In the Wall Opinion, the ICJ seems to have extended these obligations to all unlawful situations where important international rights and obligations are involved. According to the Court, all states are, in that situation, “under an obligation not to render aid or assistance” to a state in breach of inter-national law, and “[i]t is also for all states … to see” that the illegal situation “is brought to an end.”77

The parallel provision is article 41(1) of the DARIO: “States and inter-national organizations shall cooperate …”. The technical scope of this draft

humanitarian or human rights issues are significantly at stake, or the Council fails to deal with such a proposal within a reasonable time, it is difficult to argue that alternative means of discharging the responsibility to protect can be entirely discounted.” Para. 6.37: “it would be impossible to find consensus, in the Commission’s view, around any set of proposals for military intervention which acknowledged the validity of any intervention not authorized by the Security Council or General Assembly” (emphases added). See also text with note 56.75) Art 40 of the ILC Articles on State Responsibility.76) L.-A. Sicilianos, “Entre multilatéralisme et unilatéralisme: L’autorisation par le Conseil de sécurité de recours à la force”, 339 Recueil de Cours de l’Académie de la Haye (2008) pp. 9–436 at pp. 184–189.77) Wall Opinion, supra note 48, para. 159.


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provision relates only to situations where an international organization has committed a serious breach of a peremptory norm. The ILC did not identify any example of such a situation. But this rule could be triggered were it found that the United Nations committed such a breach through its inaction.

The abovementioned obligations to cooperate to bring to an end the R2P situation and to desist from aiding the perpetrator are in doctrinal terms primary, not secondary obligations. Although these duties are triggered by an illegal act, they are incumbent on states which did not commit that illegal act. The ensuing question then is whether non-cooperation would itself be illegal and trigger state responsibility (this will be discussed in part 7). A further question is that of the relationship between the different obligees, as far as their primary and secondary obligations (responsibility) are concerned. For example, the secondary responsibility might be parallel, joint, or staggered.

6. Security Council Member States as Bearers of the Responsibility to Protect

6.1. Specific Responsibility of Council Members due to the Triplement Fonctionnel

With regard to the members of the Security Council, the obligation to cooperate in bringing to an end the commission of core crimes takes the form of an obligation to vote positively on a resolution authorising a robust intervention if this is the only means to bring an end to R2P crimes and violations. This follows, apart from article 41(1) of the ILC Articles on State Responsibility as discussed above, additionally from the Council members’ obligation to fulfil in good faith the obligations assumed by them in ac-cordance with the UN Charter (article 2(2) of the UN Charter and article 26 of the VCLT).78

When participating in deliberations and votes in the Council, the members of that body do not only act as representatives of their respective states, but also as an intrinsic part of a collective organ of an international organization. Moreover, because the Security Council is not a plenary organ, but an organ with restricted membership, those members do not only stand

78) E. Davidsson, “The UN Security Council’s Obligations of Good Faith”, 15 Florida Journal of International Law (2003) pp. 541–573.


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in a special legal relationship with the organization, the UN, but also in a special legal relationship with the remaining members of the organization, who are not represented in the Security Council. Members of the Security Council act as delegates of all other UN members, and as trustees of the international community.79 Due to this triplement fonctionnel,80 their voting behaviour is subject to legal limits. Their position as trustees prohibits them handling their participation rights in the collective body in an arbitrary fashion. As a minimum, the fiduciary obligation of the members of the Security Council brings with it an obligation to balance all relevant aspects.81 This means that the rule of law not only prohibits arbitrary decisions of the Security Council as a whole, as stated above, but should also govern the Council members’ votes approving or preventing arbitrary decisions.

6.2. Increased Responsibility of the P5

An obligation to vote positively is incumbent on all members of the Council. However, the permanent members are in a legally different position to the non-permanent ones, because each of them can actually hinder a decision by itself through the veto. A non-permanent member does not have the power to block a Council decision on its own. Its negative vote can only co-determine the outcome, and it may in any case have a chilling effect on Security Council policies. So it seems that the obligations falling on the non-permanent members should be somewhat less strict than for the P5.

The P5’s privilege within the Security Council, the veto power, is only justifiable in a constitutionalised order with a view to those members’ special military and economic capabilities. The veto power is thus intrinsically correlated with a special responsibility. It is therefore submitted that the

79) Admission to Membership in the UN, supra note 59, para. 20: “[T]he members of the Security Council, in whatever capacity they may be there, are participating in the action of an organ which in the discharge of its primary responsibility for the maintenance of international peace and security is acting on behalf of all the Members of the United Nations.” (emphasis added).80) Cf. the term “dédoublement fonctionnel” as coined by Georges Scelle, who used it in a quite different sense, and applied it mostly to domestic courts acting as agents of the inter-national community (G. Scelle, “Le phénomène juridique du dédoublement fonctionnel”, in W. Schätzel and H.-J. Schlochauer (eds.), Rechtsfragen der internationalen Organisation: Festschrift für Hans Wehberg zu seinem 70. Geburtstag (Klosterman, Frankfurt a.M., 1956), pp. 324–342).81) M. Herdegen, Völkerrecht (Beck, München, 9th ed., 2010), p. 315.


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hard legal obligation to protect populations threatened by the R2P crimes especially falls on the permanent members of the Security Council.82

The conclusion drawn by the delegate of Liechtenstein in the debate leading to SC Resolution 1674 on the protection of civilians was: “That responsibility leads almost inevitably to the conclusion that collective ac-tion to prevent and respond to genocide, crimes against humanity and war crimes must not be made impossible by a non-concurring vote of one of the permanent members of the Council.”83 Already the ICISS had suggested that when action is needed to stop or avert a significant humanitarian crisis, and when a permanent member of the Security Council does not claim its vital interests to be involved, it should not use the veto to obstruct the passage of what would otherwise be a majority resolution.84 The High-level Panel Report of 2004 had asked “the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses.”85 The Kosovo Report as well had opined that “the current system allowing any Permanent UNSC member to paralyze UN action through the use of the veto must be adjusted in a judicious manner to deal effectively with cases of extreme humanitar-ian crisis.”86 Most recently, the Secretary-General evoked the P5’s special responsibility in his 2009 Report on the Implementation of R2P:

Within the Security Council, the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter. I would urge them to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect, as defined in paragraph 138 of the Summit Outcome document, and to reach a mutual understanding to that effect.87

82) In this sense, see also Arbour, supra note 33, pp. 453–454, concluding that a veto blocking an initiative designed to reduce the risk of genocide would “constitute a violation of the vetoing States’ obligations under the Genocide Convention.”83) Statement of Liechtenstein in the debate on SC Res. 1674, 9 December 2005 (S/PV.5319 (Resumption 1)), p. 15 (emphasis added).84) ICISS, supra note 16, para. 6.21.85) High-level Panel, supra note 36, para. 256.86) The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford University Press, Oxford, 2000), p. 198.87) Secretary-General 2009, supra note 21, para. 61.


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6.3. Exercise of Veto in an R2P Situation as Abus de DroitI submit that, under the rule of law, the exercise of the veto may under special circumstances constitute an abus de droit by a permanent member. It is controversial whether the concept of abuse is applicable to the veto. This controversy hinges on the legal qualification of the vote (and of the veto).88 The traditional reading of the UN Charter could hardly accommodate the notion of an illegal veto or of a “blockage” of the Security Council, because exactly this blocking option was part of the deliberate institutional design of the organization. Put differently, if the veto is not a “right”, but just a fact, which moreover, pertains rather to the political, and not to the legal realm, it cannot be abused.89

The qualification of the vote (including the negative vote in form of a veto) as a political fact (as opposed to a legal act) points to the following aspects: A vote contributing to the adoption of an organization’s decision, such as a vote in the Security Council, is not a sufficient condition for the adoption of the Security Council’s decision. In particular the veto is not a power to create, but only a power to withhold. It is not analogous to a consent to be bound, as in the making of a treaty. Therefore it has been argued that the member state’s vote is not itself a legal act. It does not have any normative effect, but is completely consumed by the decision of the Council, to which it contributed.

From the qualification of the vote as a fact, it follows that the vote itself, not having a proper legal value, is not in itself a source of any legal obliga-tion. Therefore, from the vote itself, no legal obligation can arise.90 On the secondary level of legal responsibility, the exercise of the veto cannot, according to that view, engender legal responsibility.91

88) See the lucid analysis by E. Lagrange, La representation institutionelle dans l’ordre inter-national (Kluwer Law International, The Hague, 2002), pp. 315–343.89) See Lagrange, ibid., pp. 326–327 specifically on the abuse of the veto. She claims that the veto is not abusable, and that despite contrary appearances, the GA respects this principle (p. 327).90) Lagrange’s argument is that if the vote equalled a consent to be bound, non-binding decisions (recommendations) and binding decisions (such as UN Security Council resolu-tions) could not be distinguished (ibid., p. 320).91) But see this paper’s argument on state responsibility arising from an abusive veto in part 7.2.


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A related argument is that the exercise of the veto is an “acte de gouverne-ment”.92 Therefore, so the argument runs, the veto is not subject to legal standards, but remains purely in the political realm. “Legal” or “illegal” are then no relevant category for a vote of a member state in an international organization. In consequence, so the argument goes, the veto can never be illegal. This line of reasoning likewise leads to the conclusion that the exercise of the veto cannot entail state responsibility. A state could, in that view, never be responsible for an illegal act adopted with its vote.93

However, this qualification of the veto is not fully persuasive. A state’s vote contributing to an organization’s decision is, if not a legal act in itself, still an indispensable element of a legal act. Even if it is in itself not sufficient to create a legal act, it is a necessary condition. Moreover, a vote (including a veto) can in exceptional cases have a dual significance, and can be an additional manifestation of will of the state (prior or subsequent or simply in addition to the organization’s decision).94

I submit that the veto is a procedural right, and can therefore be abused. The concept of abuse is closely linked to the principle of good faith, and implies a distinction between a right and the circumstances and manner in which it is exercised.95 “A state which, though not with the actual object of breaking an international obligation as such, uses its right to apply certain laws, or to apply them in a certain way, in such a manner that the obligation is not in fact carried out, may be said to have committed an abuse of rights.”96 Put differently, an abuse of right is present when a state does not behave illegally as such, but exercises rights that are incumbent on it under international law in an arbitrary manner or in a way which impedes the enjoyment of other international legal subjects of their own rights.97 So although it may be the

92) Lagrange, supra note 88, p. 335.93) Ibid., p. 332.94) Ibid., p. 324.95) Cf. A. Kiss, “Abuse of Rights”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Inter-national Law (Oxford University Press online, 2009), <http://www.mpepil.com>; M. Byers, “Abuse of Rights: An Old Principle, A New Age”, 47 McGill LJ (2002) pp. 389–431.96) G. Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1954–9: General Principles and Sources of Law”, 35 BYIL (1959) pp. 183–231 at p. 209. In this sense, see also Kiss, supra note 95, paras. 3 and 32.97) Kiss, supra note 95, paras. 1 and 4. Another type of an abuse of rights is the situation that a state exercises a right for an end different from that for which the right was created, to the


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right of a P5 state to exercise the veto, its exercise in a concrete situation may be abusive. Finally, it is controversial whether the finding of an abuse of rights requires the finding that there has been some injury.98 I submit that injury is a necessary element of abuse. But such an injury may also lie in an injury of the international community or of individuals (victims of genocide, for example).

Both state practice and UN practice recognise the possibility of an abuse of the veto. For instance, Bosnia-Herzegovina declared its intention to institute proceedings against the United Kingdom (UK) before the ICJ, and argued that the UK had abetted ongoing genocide by opposing the efforts of others to have the embargo lifted and that these actions amounted to “complicity in genocide”.99

A 1946 resolution of the General Assembly called for the good use of the veto.100 Also the Uniting for Peace resolution posited a “duty” of the permanent members of the Security Council to attempt to reach unanimity and to “exercise restraint in the use of the veto”.101 Finally, judges of the ICJ reminded all UN members that when participating in a political decision either in the Security Council or in the General Assembly the Member is “legally entitled to make its consent … dependent on any political consideration which seem to it to be relevant. In the exercise of this power the member is legally bound to have regard to the principle of good faith.”102 UN members must exercise their voting power “in good faith, in accordance

injury of another state (ibid., paras. 1 and 5). That second type of abuse of rights resembles the French concept of “détournement de pouvoir”. 98) Ibid., para. 31. 99) “Declaration of Bosnia Herzegovina of 15 December 1993” 43 ICLQ (1994) p. 714. That complaint was never lodged.100) In Resolution 40(I) of 12 December 1946 on the “Voting Procedure in the Security Council”, the General Assembly “[e]arnestly requests the permanent members of the Security Council to make every effort, in consultation with one another and with fellow members of the Security Council, to ensure that the use of the special voting privilege of its permanent members does not impede the Security Council in reaching decisions promptly”.101) GA Res. 377A(V) Uniting for Peace, 3 November 1950, para. 5 of the preamble speaks of the “duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto” (emphasis added).102) Admission to Membership in the UN, supra note 59, para. 21. See also para. 9: The fact that a Security Council decision (in that case a recommendation for admission of a state to the UN) is “pre-eminently a political act … does not mean that no legal restriction is placed


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with the Purposes and Principles of the Organization and in such a manner as not to involve any breach of the Charter.”103 To conclude, it seems possible to qualify the exercise of the veto in an R2P situation as an abus de droit.

7. Legal Consequences of a Permanent Member’s Veto in an R2P Case

So what would be the legal consequences of an abusive veto? I submit that an abusive veto should be treated either as irrelevant so as not to prevent a Council decision, or as illegal.

7.1. Irrelevance or Illegality of an Abusive Veto

The procedural rule of article 27(3) of the UN Charter, which foresees unanimity among the P5 could be interpreted systemically, and take into account the responsibility to protect as a “relevant rule of international law” in the sense of article 31(3)(c) of the VCLT. The systemic interpretation would lead to qualifying an abusive refusal to concur by a P5 state either as legally irrelevant or as a mere voluntary abstention which according to established and general practice of the organization cannot prevent a positive decision of the Council.104 The legal irrelevance of an abusive veto also flows from the general principle that the United Nations may not invoke internal procedural problems to justify its breach of international law.105

A more radical proposition is that an abusive veto should be treated as an illegal act. This proposition has so far not been accepted in state practice, although it seems doctrinally consistent. The endorsement of R2P as a legal principle fully thought through means that it is a legal obligation incumbent both on the United Nations (acting through the Security Council) and on the states, especially on the permanent members of the Security Council.

upon this liberty. We do not claim that a political organ and those who contribute to the formation of its decisions are emancipated from all duty to respect the law.”103) Ibid., para. 25.104) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 21 June 1971, International Court of Justice, Advisory Opinion, ICJ Reports 1971, p. 16 at p. 22, para. 22.105) This general principle of international legal responsibility has so far been codified only for the special case of the failure to perform a treaty (cf. article 27 of both VCLT 1969 and VCLT 1986).


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It follows that a permanent member’s exercise of the veto power in an R2P case would be illegal, because it breaches the obligation to protect, conceived as a primary rule of international law.

7.2. Consequence: State Responsibility?

If the responsibility to protect is understood to be a real legal obligation to protect, and not merely as an imperfect duty, then a failure to protect is an illegal act. An illegal act entails state responsibility. There would therefore be, on the level of secondary rules, a corresponding liability for a failure to protect. The international legal responsibility of the members of the Security Council for the decision not to intervene could in doctrinal terms be either a responsibility for the United Nations’ conduct, attributed to the member state, or a distinct responsibility for the state’s own conduct. I will examine both propositions separately.

7.2.1. No Responsibility for the Inaction of the United Nations, Attributed to the Member State

The United Nations possesses legal personality106 and is not a mere “alter ego” or agent of the member states. From this distinct personality flows the distinct responsibility of the organization.107 This means that, as a rule, unlawful conduct of the United Nations, acting through the Security Council, cannot be attributed to its member states.108 In particular the participation of a state in the creation or adoption of an act of an organiza-tion does not in itself constitute a source of member state responsibility for the acts of the international organization. The contrary view, as espoused,

106) Reparation for Injuries Suffered in the Service of the United Nations, International Court of Justice, Advisory Opinion, ICJ Reports 1949, p. 174 at pp. 179–184.107) Rosalyn Higgins noted in her provisional report for the Institute of International Law that international organizations “are not agents acting in service of their principals, who thus remain liable, unless the constitution makes provision for such an arrangement”. R. Higgins, “Session of Lisbon: Preparatory Works”, 66:1 Institute of International Law Yearbook (1995) p. 412, para. 102 (emphasis added).108) Ibid. at p. 283: “It seems clear … that under international law the acts of an international organization with separate personality would not be attributable to the member states. This is so even if the acts are those of organs comprised of representatives of members states; and a fortiori if the acts are those of international civil servants acting, within the authority of the constitutive treaty, in the name of the organization.”


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for example, by the delegation of China in the 6th Committee of the UN General Assembly, finding that those member states that voted in favour of the decision in question or implemented the relevant decision, recom-mendation or authorisation should incur a corresponding international responsibility,109 would amount to denying both the legal and sociological autonomy of the United Nations.

Still, responsibility of a member state for an act (or omission) of the United Nations could arise in exceptional circumstances.110 This would be especially relevant for leading member states, such as the permanent members of the Security Council.111 Such an additional responsibility of a P5 state for the inaction of the UN could notably occur in the event of an abuse of the organization’s legal personality by the respective member state.112 The influence over the decision-making process in an international organization might turn abusive “when one or a few member states overrule(s) the whole process, thereby stifling any adverse opinion that could be expressed.”113

109) Delegation of China in 6th Committee of the UN General Assembly, which “observed that, since the decisions and actions of an international organization were, as a rule, under the control, or reliant on the support, of member States, those member States that voted in favour of the decision in question or implemented the relevant decision, recommendation or authorization should incur a corresponding international responsibility.” G. Gaja, Special Rapporteur, Fourth Report on Responsibility of International Organizations, 2006 (A/CN.4/564/Add.2) para. 85.110) According to article 61 of the DARIO (reproduced in A/64/10, p. 38), this can arise only if a member state has accepted responsibility for that act or if it has led the injured party to rely on its responsibility. Some delegations in the 6th Committee opined that in principle member states were not responsible, but held that they could incur responsibility in “certain exceptional circumstances” (Italy: A/C.6/60/SR.12, para. 3), in case of “negligent supervision of organizations” (Austria: A/C.6/60/SR.11, para. 65), or “particularly with regard to international organizations with limited resources and a small membership, where each member State had a high level of control over the organization’s activity” (Belarus: A/C.6/60/SR.12, para. 52).111) In his report in 2009, the Special Rapporteur noted that “a further proposal raises a different issue, by envisaging an additional case of responsibility of certain member States: those who ‘played a major or leading role in the commission of an act by an international organization’. It is argued that the ‘main responsibility for the consequences of that act should be placed on the member State’.” G. Gaja, supra note 109, para. 90.112) J. D’Asprémont, “Abuse of the Legal Personality of International Organizations and the Responsibility of the Member States”, 4 International Organizations Law Review (2007) pp. 91–119.113) Ibid., p. 109.


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However, the exercise of the veto power is not abusive of the UN’s legal personality. Abuse of personality in the sense of shielding behind the organization as a smoke screen occurs only when a member state resorts to types of pressure which are not provided for by the constitutive treaty of the organization concerned. If, in contrast, a member state dominates the decision-making process of an organization thanks to the procedural rights that it enjoys under the constitutive treaty of the organization, this cannot be considered to be an abusive control of the entire organization. In particular, the exercise of the veto by a permanent member of the Security Council can in normal circumstances not be considered as using the United Nation’s legal personality as a smoke screen even when it leads to a wrongful absence of action or decision by the organization.114

Therefore any responsibility of a member state, notably a P5 state, cannot be conceived as a responsibility for the unlawful passivity of the organization (acting through the Security Council) in an R2P situation, which would be attributed to that member state. The organizational veil is thick and should not be pierced.

7.2.2. Responsibility for own Conduct in the Security Council: Complicity

However, and this is the second constellation, international legal respon-sibility can be incurred by a permanent member for its own conduct. This is a responsibility for the violation of any other obligation of the state flowing from norms other than the constituent charter of the international organization,115 in our case an obligation flowing from the principle of R2P.

The doctrinal precondition for such a responsibility is that R2P is an own obligation of the member state, and not only an obligation of the Security Council. As explained above (parts 5 and 6), such an obligation to vote positively is conceivable. Therefore a member of the Security Council could in principle be held legally responsible for the exercise of its vote in the Council, especially for its veto.

114) Ibid., p. 110.115) P. Klein, La responsabilité des organisations internationales (Bruylant, Bruxelles, 1998), p. 480.


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The permanent member’s responsibility can be construed as complicity in the unlawful inaction of the Security Council.116 “Complicity” is a notion which is used in scholarship on international responsibility and in the case law.117 “Complicity” is an ancillary responsibility, but still a responsibility for own conduct, not for conduct of another actor (such as the United Nations) which would be attributed to the member state. In the general law of state responsibility, concerning complicity between several states, article 16 of the ILC Articles regulates “aid or assistance in the commission of an internationally wrongful act”, and article 17 refers to “direction and control” exercised over the commission of such an act. A lex specialis is the prohibition of complicity in genocide under article III(e) of the Genocide Convention.118 This prohibition is relevant for our problem to the extent that the responsibility to protect is triggered by imminent or ongoing genocide.

The obligation not to facilitate the commission of an internationally wrongful act has been extended to the relationship between states and international organizations by the International Law Commission. Its 2009 Draft Articles prohibit complicity by states through aiding or assisting an international organization in committing an illegal act, or for directing or controlling (articles 57 and 58 of the DARIO, adopted at first reading in 2009).119

116) See, in favour of the possibility of complicity, ibid., p. 469: The vote cannot as such constitute an illegal act, but as an act which assists the organization in the commitment of an internationally illegal act by the organization itself.117) See Genocide (Bosnia), supra note 45, paras. 419–420 on “complicity” in genocide in the sense of article III(e) of the Genocide Convention and “aid or assistance” in terms of article 16 of the ILC Articles on State Responsibility. The ICJ qualified these two as basically identical concepts.118) Ibid., paras. 416–424.119) Article 57: Aid or assistance by a State in the commission of an internationally wrongful act by an international organization: “A State which aids or assists an international organiza-tion in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” Art 58: Direction and control exercised by a State over the commission of an internationally wrongful act by an international organization: “A State which directs and controls an international organization in the commission of an internationally wrongful act by the latter is internationally responsible for that act if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” (text reproduced in A/64/10, p. 37).


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As a rule, lawful participation in the international organization’s decision-making process does not amount to aiding or assisting (or direction and control) in the sense of those prohibitions.120 But the ILC did not completely exclude “the possibility that aid or assistance could result from conduct taken by the State within the framework of the organization”.121 It admitted that “[t]his could entail some difficulties in ascertaining whether aid or assistance has taken place in borderline cases. The factual context such as the size of membership and the nature of the involvement will probably be decisive”.122 The boundary line between lawful participation in the Security Council’s decision-making, on the one hand, and assistance (or control) amounting to an unlawful act, on the other, seems to be overstepped in cases of an abuse of the veto as described above in part 6.3. The relationship between the respective member state’s international legal responsibility and the organization’s legal responsibility would still have to be defined.

Because the obligation to protect is an obligation erga omnes, third states could at least invoke the state responsibility created by the Security Council members’ vote, under article 48(1)(b) of the ILC Articles on State Responsibility. The Security Council’s obligation to intervene, flowing from the obligation to protect as incumbent both on the United Nations and on the members of the Council, would thus be to some extent enforceable, but only by addressing the Council members individually.

8. The Obligation to Give Reasons for a Veto

The idea developed in the preceding part, namely that preventing the Council from taking robust action in a generally acknowledged R2P situation is an illegal act (both on the side of the United Nations and on the side of the Security Council members), is not inscribed in the lex lata.

120) Report of the International Law Commission on its 61st Session, 2009 (A/64/10) Commentary on article 57, para. 2: “Should the State be a member, the influence that may amount to aid or assistance could not simply consist in participation in the decision-making process of the organization according to the pertinent rules of the organization.” In this sense, see also Commentary on article 58, para. 2.121) Ibid.122) Ibid., commentary on article 58, para. 2: The identification of “direction and control” in the commission of an unlawful act by the organization, as opposed to normal and lawful participation in the organization’s decision-making process should, according to the ILC, follow the same criteria.


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So the principle of R2P has so far not created a substantive obligation of the United Nations (acting through the Council) to intervene, and of the Security Council members to vote positively.

However, it could be argued that the law as it stands embodies a procedural obligation of the members to justify a veto (or a refusal to concur by the non-permanent members). Along that line, a group of five small countries (the “S5”) have repeatedly proposed to oblige the permanent members of the UN Security Council to explain their reasons for using the veto.123 The Council reacted in 2006 with a 63-point declaration in which the members of the Council committed themselves to intensify their efforts to publicise decisions.124 This self-commitment is framed in hortatory language and is as such no legally binding document. But the emerging procedural obligation to give reasons for a veto can be based on two legally relevant considerations.

The first foundational principle is the international rule of law. If we accept that the Security Council is operating under the rule of law, the Council’s obligation to state the reasons of any legal act it adopts already exists as a matter of (unwritten) legal principle. Under the rule of law, the authors of legal acts (both law-makers and decision-makers) are obliged to state the reasons on which their acts are based (see, e.g., article 296 TFEU (ex-article 253 EC)). The rationale of this obligation to give reasons is to force the decision- or law-maker to rely on arguments which are admissible in that very legal order. Thereby other political actors and those subjected to the legal act are enabled to criticise it and eventually to attack it if the stated reasons are legally and politically unpersuasive.

However, the Security Council’s (explicit or implicit) decision not to issue a resolution (possibly due to a threat of a veto), or the defeat of a tabled resolution in a vote (most often due to a veto) is a behaviour which differs from the successful adoption of a legal act. In that situation, the legally relevant elements are the votes of the Council members themselves. These members are bound by the domestic and international rule of law, and are

123) First proposal by Costa Rica, Jordan, Liechtenstein, Singapore, Switzerland, 17 March 2006 (UN Doc A/60/L.49). At the time of writing, the S5 intend to table a second similar proposal in the General Assembly in summer 2011 (draft resolution of 14 April 2011, agenda item 115 “follow-up to the outcome of the Millennium Summit”; see also Neue Zürcher Zeitung of 23 April 2011).124) Declaration of 19 July 2006 (annex to the Note by the President of the Security Council, S/2006/507).


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therefore obliged to give reasons for their action as well. The fact that this principle is not strictly observed is mainly due to political opportunism, but is actually in contravention of the rule of law.

The second consideration is that, even if a sweeping general obligation to give reasons for all legal acts, as postulated above, is not accepted as part and parcel of the law as it stands, there seems to be sufficient support for a more limited procedural obligation relating to core crimes. It is meanwhile universally acknowledged that the core crimes require specific vigilance by the international community. The practice of states and international organizations, as displayed in official statements and publications, has given rise to a general public expectation that the Council should take sufficiently robust action in R2P cases. In legal terms, this expectation might be qualified, if not a material strict obligation to intervene, then a legal presumption that some action is due. The legal correlate of this presumption is the obligation to give reasons for and explain inaction. Put differently, in the current stage of development of international law, R2P has reversed the onus of justification for the voting behaviour of the members, especially the permanent members, of the Security Council.125 This procedural burden is all the more appropriate as in real life the question whether a concrete situation really constitutes an R2P case will often arise. The explanation why no action is taken will inevitably have to engage with the facts, and is therefore apt to help clarifying them.

The legal consequence of this procedural obligation is that a permanent member of the Security Council may for instance justify its veto by point-ing out that an ongoing civil strife in a state like Sudan does not involve genocide-like mass crimes which would demand Security Council interven-tion. It may even (though less persuasively) rely on its national interest in maintaining good neighbourly relations with the government of Sudan, because preservation of this interest forms part of an international system of states. A member cannot however give the reason that it would like to condone crimes in order to “cleanse” a region.

Generally speaking, the obligation to give reasons forces law- and decision-makers to base their acts on claims regarding the general interest rather than on selfish appeals. This has been called the “civilizing force of

125) Verlage, supra note 1, pp. 250–253 with further references.


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hypocrisy”.126 These reasons, even if they may be hypocritical, still have the consequence of generating better outcomes, because the “bad” arguments are officially banned and have therefore much less power to influence the ultimate decision that has been reached. And this applies also to the Security Council and its members.

The obligation to give reasons would leave the exercise of the veto within the realm of discretion of the permanent member, but would still force the member to rationalise its decision. This would allow other states and the public to criticise these reasons. In the long run, an obligation to justify the veto would rule out those most blatant abuses that can simply not be rationalised.

9. Conclusion: The Limits of International Law and the Responsibility of Lawyers

It has been demonstrated that, if R2P is taken seriously as a legal principle, inaction, or vetoing a proposal for a Security Council resolution authorising robust action, would be an illegal act that triggers the responsibility of the UN and of the members of the Security Council. But such a hard and fast legal obligation has not yet been endorsed by governments and therefore does not form part of international law as it stands. No Security Council member (nor any other state) can, at this stage of development of the law, be hauled before the ICJ for failure to implement in Darfur the solemn pledge made in the World Summit Outcome Document.

One reason for the reluctance to accept R2P as a complete legal obliga-tion, incumbent on the Security Council, is that the Council is ultimately dependent on the political will of those states whose economic sanctions have bite and which contribute troops. The Security Council may authorise, but can in factual terms not compel such action. There is no accepted procedure for distributing the task to particular states, and no generally agreed formula for cost-sharing. If member states refused to contribute troops, then the Security Council would lack, in the absence of standing agreements, the means to intervene in an R2P situation. So the Security Council’s role in authorising actions designed to fulfil the international community’s responsibility can only be a first step, a necessary but not

126) J. Elster, “Deliberation and Constitution Making”, in J. Elster (ed.), Deliberative Democracy (Cambridge University Press, Cambridge, 1998), pp. 97–122 at p. 111.


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sufficient condition for actually discharging the responsibility to protect in a situation where non-military means were of no avail. This fact already might be the decisive reason precluding any conceptualisation of the Council’s responsibility as a legal one. In consequence, the Council could not be held liable for non-fulfilment.

Awareness of the impotence of the Council is moreover salient for those states which are likely to contribute troops. Would not a positive obligation to concur in a Council decision to intervene additionally imply that such states would also act unlawfully if, after the adoption of such a resolution, they refused to contribute troops? But in the absence of the standing agree-ments originally foreseen in the UN Charter, such an obligation of states seems hardly conceivable. Ultimately, thinking through the idea of a legal obligation up to this point demonstrates the limits of international law.

From a political perspective, the main problem may not be the adoption of a Security Council resolution authorising (some) action, but rather the rift between the words and deeds. However, a Council resolution authorising robust measures, and in the last resort military intervention, is in the current state of international law the juridical conditio sine qua non of the legality of an intervention for humanitarian purposes. It should therefore stand in the centre of lawyerly attention.

To conclude, the juridical consequences of R2P, if endorsed as a legal principle, are rather serious. Spelling out the consequences to their very end is apt to deter states from accepting R2P as a hard legal obligation. The prospects of endless chains of legal obligations might in the final analysis turn out to be counter-productive for alleviating the plight of endangered populations. In the end, it might be a wiser course not to “legalise” R2P completely in terms of a substantive legal obligation of all states and the UN, non-fulfilment of which would trigger legal liability.

However, it seems promising to pursue further the course of procedural obligations falling on the members of the Security Council to justify their vote. R2P has probably already shifted the onus of justification here. If this shift is accepted, a “naked” veto (without giving any, however hypocritical, reason) would qualify as an illegal act by the Council member. The same would apply to an informal threat of a veto which prevents that a formal decision is taken by the Council (the so-called “hidden veto”).

The question then arises what this procedural flaw implies for the legal authority of the Security Council’s ensuing decision or non-decision. Would it have to be considered as devoid of legal authority? And if yes,


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would this mean that a unilateral humanitarian intervention then became permissible? The World Summit Outcome Document only seemingly rules this out, because it is silent on the situation arising when the states, acting through the Security Council, fail to fulfil their responsibility to protect. Tying the admissibility of unilateral action to the clear and very restrictive procedural condition that a member of the Council failed to give any reasons for its veto seems preferable to the murky idea of blockage or abuse of the Council as ventilated in the aftermath of NATO’s Kosovo intervention. But the main benefit of the procedural conception lies, it is submitted, in the preventive “civilising” discursive effect of teasing out from states more or less rational arguments (as explained above) rather than in justifying a possible subsequent unilateral intervention in the very unlikely case that a Council member gives no such arguments.

Still, the follow-up questions arising from the “procedural” conception of R2P, as advanced in this paper, are far from resolved. They demonstrate that it remains the responsibility of scholars and practitioners of international law to point out exactly the legal consequences of new juridico-political ideas and call them by name.

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Peters - The Security Council's Responsibility to Protect