Analysis on the Legal Nature of ‘Responsibility to Protect’

Date01 July 2020
DOI10.1177/0020881720926767
Published date01 July 2020
Subject MatterArticles
Research article
Analysis on the Legal
Nature of ‘Responsibility
to Protect’
Hui-Chol Pak1, 2 , Hye-Ryon Son1 and
Son-Kyong Jong1
Abstract
At present, some states are undertaking military interventions in different parts
of the world, contending the ‘legitimacy’ of their invocation of responsibility to
protect civilians from a humanitarian crisis. Discussions at international forums
concerning the concept of Responsibility to Protect (R2P) are inconclusive about
its legal nature and application. While some scholars and states support the
doctrine of R2P as being legitimate, others challenge or take a rather sceptical
view. Divergent views seem to be originating from its incompatibilities with the
rules of international law, including the Charter of the United Nations. What
is controversial is that the supporters of R2P are mainly from the West, while
objections to R2P are from developing countries mainly from West Asia or
Africa. This raises concerns about the possibility of future applications of R2P in
any of the countries in these regions or other developing countries. The article,
analyses the legal nature of R2P in terms of the main principles of international
law and other sources of international law and argues that the legitimacy and
international legal effect of R2P are uncertain.
Keywords
Humanitarian intervention, legitimacy, Libya, R2P, responsibility to protect, UN
Security Council
Introduction
Since the 1990s, the Western states, including the United States of America, have
justified their large-scale bombings and military attacks on countries such as
1 Department of International Law, Faculty of Law, Kim Il Sung University, Pyongyang, DPR Korea.
2 Korean International Trade Arbitration Committee, Pyongyang, DPR Korea.
Corresponding author:
Hui-Chol Pak, Kim Il Sung University, Ryongnam-dong, Taesong District, Pyongyang, DPR Korea.
E-mail: laws2@ryongnamsan.edu.kp
International Studies
57(3) 279–295, 2020
2020 Jawaharlal Nehru University
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DOI: 10.1177/0020881720926767
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280 International Studies 57(3)
Rwanda, Kosovo, Somalia, and so on, by claiming that there were aimed at
alleviating humanitarian crises in those countries under the doctrine of
‘humanitarian intervention’.
The ‘humanitarian intervention’ can be defined as an intervention in the
domestic affairs of a state through the use of force to protect people within the
jurisdiction of that state from ‘persecution’ and ‘humanitarian crisis’. Although
the doctrine of ‘humanitarian intervention’ emerged long ago, it continues to
arouse strong criticism and doubt among many states (Shaw, 2003, pp.
1045–1048).
Traditionally, the use of force and intervention in domestic matters is prohibited
under the international laws, including the UN Charter and customary rules of
international law. An exception to this prohibition is self-defence and authorization
of the UN Security Council (UNSC) under Chapter VII of the UN Charter.
However, intervening states have frequently used force in the name of
‘humanitarian intervention’ without the authorization of the UNSC. This gave rise
to debates on the legitimacy of ‘humanitarian intervention’. It has even been
criticized as a ‘coercive breach of the walls of the castle of sovereignty’ (Bayliss
& Smith, 2001, p. 472).
In order to make up for the inadequacies of ‘humanitarian intervention’, the
international community adopted a new concept of ‘sovereignty as responsibility’
(Deng et al., 1996, p. 12). Kofi Annan, the then Secretary General of the UN
secretariat, in the year 2000, used the concept of ‘sovereignty as responsibility’
(Annan, 2000, pp. 48–49) in a report and called upon the international community
to have a consensus on how to deal with systematic violations of human rights and
large-scale ‘humanitarian crisis’. In response to the call, Jean Chretien, the then
Canadian Prime Minister, in September 2000 proposed to establish International
Commission on Intervention and State Sovereignty (ICISS), designed to study the
military intervention related to international protection of human rights (ICISS,
2001). The ICISS submitted its first report to the UN in December 2001, where it
adopted a new concept of ‘responsibility to protect’ (R2P) (Burke-White, 2011).
In its report, the ICISS stated that each state has the responsibility to protect its
citizens from disasters, including massacre, assault and famine, but, when a state
is not willing or able to fulfil its responsibility, the responsibility devolves to the
international community (ICISS, 2001).
In fact, the ‘R2P’ is a new concept that was formulated by adding a new content
to state sovereignty in view of the lack of consensual recognition of the legitimacy
of ‘humanitarian intervention’ (Hwang, 2012).
In 2005, the UN endorsed the principle in the World Summit Outcome
Document at the World Summit, as follows:
Responsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity.
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….

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