Peters - The Security Council's Responsibility To Protect

INTERNATIONAL
ORGANIZATIONS
LAW REVIEW
brill.nl/iolr
Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/157237411X584075
Te Security Councils Responsibility to Protect
Anne Peters
Prof. Dr iur., LL.M (Harvard), Professor of International and Constitutional Law,
University of Basel, Switzerland
Anne.Peters@unibas.ch
Abstract
Te objective of this paper is to spell out the legal consequences of the concept responsibility
to protect (R:P), postulated as a binding legal principle of international law, for the Security
Council and its members. Te paper is a thought experiment, because the binding legal force of
R:P is not settled. My argument is that, once R:P is accepted as a full-edged legal principle,
the Security Council (and its members) would be under a legal obligation to authorize or to take
suciently robust action in R:P situations. Te paper then discusses the problems engendered
by the acceptance of such a material obligation and suggests a procedural obligation to justify
inaction instead.
Keywords
responsibility to protect (R:P); Security Council; sovereignty; veto; international responsibility
of international organizations; permanent members; Libya; Cte dIvoire
:. Introduction
Te Security Councils Resolutions :,;c, :,;, and :,;, of February and
March :c:: on massacres committed by the Libyan leader Qadha against
the Libyan population, and on the post-electoral crisis in Cte dIvoire, have
endorsed the responsibility to protect (R:P).
:
Already in Resolution :,;c of
:)
See, in scholarship, R. Takur, Te United Nations, Peace and Security: From Collective
Security to the Responsibility to Protect (Cambridge University Press, Cambridge, :cco) esp.
chapter :: (pp. ::o,); Socit franaise pour le droit international (ed.), Colloque de
Nanterre, La responsabilit de protger (Pedone, Paris, :cc); C. Verlage, Responsibility to Protect
International Organizations Law Review 8 (2011)
DOI: 10.1163/157237411X584075
2
Peters / International Organizations Law Review 8 (2011)
DOI: 10.1163/157237411X584075
:o February :c::, the Council recalled the Libyan authorities responsibility
to protect its population.
:
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.
,
Tis postulate was realised with Resolution :,;, of :; March :c::. Here
the Security Council reiterated the responsibility of the Libyan authorities to
protect the Libyan population.
Te resolution stresses the need to intensify

eorts to nd a solution to the crisis which responds to the legitimate
demands of the Libyan people,
,
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, .
o

(Mohr Siebeck, Tbingen, :cc); G. Evans, Te Responsibility to Protect: Ending Mass Atrocity
Crimes Once and for All (Brookings Institution Press, Washington DC, :cc); A. Bellamy,
A Responsibility to Protect: the Global Eort to End Mass Atrocities (Polity Press, Cambridge,
:cc,). Tis paper builds on thoughts rst developed in A. Peters, Te 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, :c::) pp. :,;,:,. I thank Nina Blum for helpful criticism on my draft.
:)
Preamble. Te 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 full the legitimate demands of the population (para.
:) and urges the Libyan authorities to respect human rights and international humanitarian
law (para. :a) Te 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 Qadha family
and other politicians.
,)
Grard Araud, Remarks to the press on the adoption of Resolution :,;c, :o February
:c:: (emphasis added). See, on Libya as an R:P case and on the obligation of the Security
Council to take action, A. Peters, Die Picht zum Eingeifen, Neue Zrcher Zeitung, No.
, :o February :c::, p. ;.
)
Preamble. Resolution :,;, was adopted by a vote of ten with ve abstentions (Brazil,
China, Germany, India and Russia).
,)
Para. :.
o)
Para. . Te resolution further established a no-y zone in Libyan airspace, contained
further provisions to enforce the arms embargo, imposed a ban on ights by Libyan-registered
aircrafts, and extended the asset freeze.
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Resolution :,;, of ,c March :c:: on the post-electoral crisis in Cte
dIvoire condemned the serious abuses and violations of international law
in Cte dIvoire, rearming the primary responsibility of each State
to protect civilians .
;
Te Security Council urges [the defeated
president] Gbagbo immediately to step aside.
Te Council stressed its full

support given to the United Nations Mission in Cte dIvoire (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.
,

Alain Pellet has qualied Resolutions :,;, and :,;, 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 :,;, and :,;, begin to make
this ardent obligation real.
:c

Te objective of this paper is to spell out the legal consequences of
R:P, postulated as a binding legal principle of international law, for the
Security Council and the members of the UN. My argument is that, once
R:P is accepted as a full-edged legal principle, the Security Council (and
UN members) would be under a legal obligation to authorise or to take
suciently robust action in R:P situations. Te paper then discusses the
problems engendered by the acceptance of such a material obligation and
suggests a procedural obligation to justify inaction instead.
Tis 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 R:P had been reached. It
is a historical fact that the Security Council has failed to prevent and to stop
genocide in Rwanda and Srebrenica. Te two inquiry reports on those events
;)
SC Res. :,;,, preamble.
)
Para. ,.
,)
Paras. o and ;. Both of the UN Secretary-Generals Special Advisors, on the prevention
of genocide and the responsibility to protect, have reminded all parties of their responsibility
to protect all persons in Cte dIvoire (UN press release, :, December :c:c).
:c)
A. Pellet, Les resolutions :,;, et :,;, (:c::) du Conseil de Scurit. Une mutation
tranquille, European Society of International Law, Newsletter ::, May :c:: (authors
translation).
4
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in both cases blamed the Security Council and explicitly found the body to
be responsible.
::
In :,, and :,,,, 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 R:P, it might.
i. Content of RiP
In the General Assemblys World Summit Outcome Document of :cc,,
R:P has been dened as follows:
:,. Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. Tis 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. Te international community should, as appropriate, encourage and help States
to exercise this responsibility and support the United Nations in establishing an early
warning capability.
::)
On Rwanda: Report of the independent inquiry into the actions of the United Nations during
the :)), genocide in Rwanda (Carlsson Report), :o December :,,, (UN Doc S/:,,,/::,;)
p. ,:: Not least, the Security Council itself bears the responsibility for the hesitance to
support new peacekeeping operations in the aftermath of Somalia, and specically in this
instance for having decided to limit the mandate of the mission in respect to the weapons
secure area. At pp. ,;,: Te decision by the Security Council on :: 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 eort 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 nds dicult to
justify. Te Security Council bears a responsibility for its lack of political will to do more to
stop the killing Te 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-Generals letter, the Council nally authorized UNAMIR II on :; May
Te 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 ,,/,,, :, November :,,, (UN Doc A/,/,,) para. ,c:: Te 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. Tis 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 eld Te 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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:,,. Te 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. [].
::
Security Council Resolutions (SC Res. :o;,
:,
SC Res. :;co,
:
and SC Res.
:;o,
:,
) conrmed the Summit Outcome Document, and Resolutions :,;,
and :,;, implemented it in practice.
Historically, R:P 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).
:o

From that perspective, R:P is not an adversary of sovereignty, but its ally. Te
focus is no longer on the states duty to refrain from action and intervention,
::)
Resolution adopted by the General Assembly, World Summit Outcome Document, :
October :cc, (UN Doc A/RES/oc/:) paras. :,:,,.
:,)
Res. :o; (:cco) on the protection of civilians in armed conict, para. , rearms the
provisions of paras. :, and :,, of the World Summit Outcome Document, supra note ::.
:)
Te preamble of Res. :;co (:cco), on the crisis in Darfur, recalls Res. :o; which
rearms, inter alia, the provisions of paragraphs :, and :,, of the World Summit Outcome
Document, supra note ::.
:,)
Res. :;o, (:cc;) on Darfur only rearms Res. :o; in its preamble, but does not mention
the World Summit Outcome Document, supra note ::.
:o)
See, seminally, F. M. Deng et al, Sovereignty as Responsibility: Conict Management in
Africa (Brookings Institution Press, Washington DC, :,,o); International Commission on
Intervention and State Sovereignty (ICISS), Te Responsibility to Protect (:cc:), <http://
www.iciss.ca/pdf/Commission-Report.pdf>, paras. :.,,:.:; :.:; :.::.:,. See, for a rst
assessment of this paradigm shift, A. Peters, Le droit dingrence et le devoir dingrence:
vers une responsabilit de protger, ;, Revue de Droit International et de Droit Compar
(:cc:) pp. :,c,c. See, critically, J. Alvarez, Te Schizophrenias of R:P, in P. Alston and
E. Macdonald (eds.), Human Rights, Intervention, and the Use of Force (Oxford University
Press, Oxford, :cc;) pp. :;,:.
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but inversely on a possible mandate of an international response.
:;
Tis
shift has been encapsulated in the slogan: From non-intervention to
non-indierence.
Te initially broad and fuzzy scope of R:P, as suggested in the :cc: Report
of the International Commission on Intervention and State Sovereignty
(ICISS)
:
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 dened in articles o of the ICC Statute (geno-
cide, war crimes, and crimes against humanity including ethnic cleansing).
:,

It is also clear that the responsibility rst 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 :cc: to :cc,, the conceptual design of R:P has been slightly modi-
ed. In the ICISS Report, R:P was conceived as a responsibility to prevent,
to react and to rebuild.
:c
At the Millennium Summit of :cc,, 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. Te
:cc, Report of the Secretary-General on Implementing the Responsibility
to Protect,
::
which was endorsed by the General Assembly,
::
conrmed this
:;)
See, in favour of third states duty to protect, M. Bettati and B. Kouchner, Le devoir
dingrence (Denoel, Paris, :,;). See, for philosophical arguments, K.-C. Tan, Te Duty
to Protect, in T. Nardin and M. S. Willams (eds.), Humanitarian Intervention (New York
University Press, New York, :cco) pp. ::;; D. Rodin, Te 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, :cco) pp. ,oc.
:)
ICISS, supra note :o.
:,)
Scholarly debate continues about responsibility to protect populations against natural
disasters. See the section Responsabilit de protger et catastrophes naturelles: lmergence
dun rgime? in Socit franaise, supra note :, pp. :,:,; J. Wong, Reconstructing the
Responsibility to Protect in the Wake of Cyclones and Separatism, Tulane Law Review
(:cc,) pp. ::,:o,.
:c)
ICISS, supra note :o.
::)
Secretary-General, Implementing the Responsibility to Protect, :: January :cc, (UN Doc
A/o,/o;;) paras. ,o, (Pillar three: timely and decisive response).
::)
GA Res. o,/:c (, February :cc,) takes note of the Secretary-Generals Report of :cc,.
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pillar-structure. Overall, the concept is now framed as narrow but deep,
in the words of the Secretary-General.
:,
. Te Legal Quality of RiP
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 R:P is a hard and fast
legal obligation, only a political concept,
:
soft law,
:,
or an emerging legal
norm.
:o
In a three-day long General Assembly debate in July :cc, on R:P,
:;

in which , states took the oor, ve delegations explicitly considered R:P
not to be a legal principle.
:
Tat opinion was also expressed in a concept
note of the then President of the UN General Assembly, Miguel dEscoto
Brockman.
:,
Liechtenstein called R:P a political commitment of the
highest order.
,c
In contrast, Canada explicitly found R:P to be a legal
principle,
,:
and Bangladesh called it an emerging normative framework.
,:
:,)
Secretary-General :cc,, supra note ::, para. ::(c).
:)
In that sense, see A. Clapham, Responsibility to Protect Some Sort of Commitment,
in V. Chetail (ed.), Conits, scurit et cooperation / Conicts, Security and Cooperation: Liber
Amicorum Victor-Yves Ghebali (Bruylant, Brussels, :cc;) pp. :o,:,: at p. :,:.
:,)
J. M. Welsh and M. Banda, International Law and the Responsibility to Protect:
Clarifying or Expanding States Responsibilities?, : Global Responsibility to Protect (:c:c)
pp. ::,:,: at p. :,c.
:o)
In that sense, see S. Szurek, La responsabilit de protger, nature de lobligation et
responsabilit internationale, in Socit franaise, supra note :, pp. ,::, at p. ,,.
:;)
GAOR (A/o,/PV.,;-:cc) of :,, : and : July :cc,.
:)
Brazil (A/o,/PV.,;, p. ,); Guatemala (A/o,/PV.,;, p. :); Morocco (A/o,/PV.,, p. :,);
China (A/o,/PV.,, p. :); Venezuela (A/o,/PV.,,, p. ,); Monaco (A/o,/PV.,,, p. ::).
:,)
Oce 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,
:; July :cc,, p. :: 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.
,c)
A/o,/PV.,;, p. ::.
,:)
A/o,/PV.,, p. :o: We have at our disposal a sophisticated normative legal framework
based on international law.
,:)
A/o,/PV.:cc, p. ::.
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Many proponents of a legal obligation argue that R:P (with the narrow
contents now accepted) is rooted in pre-existing treaty obligations,
,,
notably
in common article : of the :,, Geneva Conventions, article I of the
:, 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.
,
Te opinion that R:P ows from existing treaty law was
clearly expressed by seven states in the General Assembly.
,,
Some scholars
opine that the concept does not add anything new and might therefore be
superuous or even dangerously misleading.
Te relevant documents employ an ambiguous language to describe
the binding force and the legal character of the responsibility to protect.
,o

,,)
See E. C. Luck, Special Adviser to the Secretary-General, Remarks to the General
Assembly on the Responsibility to Protect, New York, :, July :cc,, p. ,: [I]t is a political,
not legal, concept based on well-established international law and the provisions of the UN
Charter. L. Arbour, Te Responsibility to Protect as a Duty of Care in International Law
and Practice, , Review of International Studies (:cc) pp. ,, at pp. ; and ,c:
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 responsabilit de
proteger ou dune nouvelle parure pour une notion dj bien tablie, ::c Revue Gnrale
de Droit International (:cco) pp. :::. Te authors argue that R:P does not go beyond the
obligation to respect and to ensure respect under international humanitarian law (common
art : of the Geneva Conventions) and is therefore nothing new.
,)
See article : of the Anti-Torture Convention of :,.
,,)
New Zealand (A/o,/PV.,;, p. :,); Netherlands (A/o,/PV.,;, p. :o); Austria (A/o,/PV.,,
p. :); Switzerland (A/o,/PV.,, p. ,); Nigeria (A/o,/PV.,, p. :o); Mexico (A/o,/PV.,,, p.
:); Sri Lanka (A/o,/PV.:cc, p. :). Chile made this statement with regard to the territorial
states obligations (A/o,/PV.,, p. :c).
,o)
For example, ICISS, supra note :o, para. :.: states: While there is not yet a suciently
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.
o.:; again speaks of the emerging guiding principle of R:P, 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 Councils own practice. Tis is inconsistent. Either R:P is
an already existing norm, or it is only emerging. High-level Panel on Treats, Challenges
and Change, A More Secure World: Our Shared Responsibility, : December :cc (UN Doc
A;,,/,o,) para. :c, calls R:P an emerging norm, whereas the French version speaks of a
nouvelle norme.
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Te Secretary-General stated in his :cc, Report: I believe that we must
embrace the responsibility to protect, and, when necessary, act on it.
,;
In
the World Summit Outcome Document, the heads of state spelled out
the responsibility of states (para. :,) towards their populations as a strict
obligation, and committed themselves: We accept that responsibility
and will act in accordance with it.
,
In contrast, the responsibility of the
international community, through the United Nations (para. :,,) is less
rigid. Te 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 specically to substitute a
stronger language of obligation.
,,
My position is that although the idea can partly be based on existing
international law, it is not legally superuous, because it pulls pre-existing
norms together and places them in a novel framework. Te innovation
is mainly conceptual.
c
One important innovation is the establishment
,;)
Secretary-General :cc,, supra note ::, para. :,,.
,)
World Summit Outcome Document, supra note ::, para. :,: Each individual state has
the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and
crimes against humanity.
,,)
A previous version of that paragraph contained the phrase: we recognize our shared
responsibility to take collective action. Tis 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 (,c August :cc,)). Also, the French version of the World
Summit Outcome Document, supra note ::, para. :, uses the term incombe and avoids
the term responsible. I thank Nicolas Michel for drawing my attention to the language
divergences in the documents.
c)
In this sense, see also A. von Arnauld, Souvernitt und Responsibility to Protect,
Die Friedens-Warte (:cc,) pp. ::,: at pp. ,, and :; S. Rosenberg, Responsibility to
Protect: A Framework for Prevention, : Global Responsibility to Protect (:cc,) pp. :;;
at p. .
10
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of a relation between the dierent types of addressees. R:P for the rst
time clearly states that when the territorial state manifestly fails to full its
obligation to protect, it falls upon the international community. Tis 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,
justied by an additional set of arguments which provide the missing link.
Tat 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
eectively performed. Tis 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
:
provides the second
justication for this shift, because in order to be real, individual rights
require a corollary collective obligation on the international community
as a whole.
:
Seen through the lens of the law of solidarity, R:P 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
species the conditions of action for protecting shared values which are of
a human rights nature.
,
So R:P is a novel construct which innovatively uses pre-existing legal
principles as building blocks for a new edice. Tis systematisation is apt to
reinforce the normative power of those principles. Te whole is more than
the sum of the parts. R:P therefore has some added legal value, independent
of whether it is qualied as a binding legal norm as such.
:)
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 Nijho Publishers,
Leiden, :cc,) pp. ;;,c;.
:)
K. Wellens, Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some
further Reections, in R. Wolfrum and C. Kojima (eds.), Solidarity: A Structural Principle
of International Law (Springer, Heidelberg, :cc,) pp. ,, at p. ::.
,)
L. Boisson de Chazournes, Responsibility to Protect: Reecting Solidarity? in Wolfrum
and Kojima, supra note :, pp. ,,:c, at pp. :c, and :c,.
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Another important observation is that the binding legal force of the
principle diers depending on the addressees. Tis 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 dierent 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.
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. Te
extraterritorial application of human rights treaties is normally linked to
state parties jurisdiction, which only in specic circumstances extends
outside the respective states 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 dened only in a sketchy manner.
,
Any responsibility to protect of bystanders therefore needs additional sup-
port in international customary law. However, the World Summit Outcome
Document of :cc,, being a General Assembly resolution, does not in itself
have binding force. But the debates leading to it and the text itself might
)
Letter of the US representative, ,c August :cc,, supra note ,,.
,)
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), :o February :cc;, International Court
of Justice, Judgment, para. ,c.
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manifest an opinio iuris or at least an opinio necessitatis which might be a rst
step towards a legal opinion. Te practice of the Security Council, especially
in its Resolutions :,;, and :,;, of :c::, 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 R:P 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.
o
Te 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. Te obligees are states and
the United Nations. A dierent 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 R:P 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.
;
Such
an individualised view would lead to the conclusion that, in the event
of non-fullment 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.
However, the International Law Commissions articles

on the responsibility of states (hereafter: ILC Articles on State Responsibility)
or of international organizations would not be directly applicable, because
o)
Szurek, supra note :o, pp. ,:, ,,;.
;)
Cf. A. Peters, Humanity as the A and of Sovereignty, :c EJIL (:cc,) pp. ,:,,.
)
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ,
July :cc, International Court of Justice, Advisory Opinion, ICJ Reports :oo,, p. :,o, para.
:,:.
13
DOI: 10.1163/157237411X584075
these provisions regulate only responsibility vis--vis other states, other
international organizations, and the international community as a whole
(article ,,(:) of the ILC Articles on State Responsibility
,
; article ,:(:) 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.
. Te Security Council as one Bearer of the Responsibility to
Protect
Tis paper concerns pillar three of R:P, the response by the Security Council.
Te Security Council has, since the inception of the concept R:P, 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. Te idea was to link the new concept to article : of the UN
Charter, which mentions the United Nations Security Councils primary
responsibility for the maintenance of international peace and security.
In his :cc, report on the implementation of R:P, the Secretary-General
restated that the timely and decisive response comes into play when
two conditions as spelled out in para. :,, of the World Summit Outcome
Document are met: When national authorities have manifestly been failing
to protect their population from the four specied crimes and violations,
and when peaceful means have proven to be inadequate.
,c
Te 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.
,:
Still, part of the reservations against
,)
Art ,,(:) of the ILC Articles on State Responsibility claries 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. Te 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, Te International Law Commissions Articles on State Responsibility:
Introduction, Text, and Commentaries (Cambridge University Press, Cambridge, :cc:), p.
::c.
,c)
Secretary-General :cc,, supra note ::, para. ,.
,:)
Te ICISS was ambiguous in this regard (see infra note ;). Te later documents seem to
foreclose interventions not authorised by the Security Council as a lawful option: High-level
Panel, supra note ,o, para. :c,: We endorse the emerging norm that there is a collective
14
DOI: 10.1163/157237411X584075
the concept of R:P has to do with lingering scepticism about the Councils
legitimacy and the ongoing debate about whether and how it should be
reformed.
,:
In fact, a number of states raised the issue of the veto in the General
Assemblys R:P debate.
,,
Two states, Venezuela and Bolivia, expressly called
for an abolishment of the veto power.
,
Also the President of the General
Assembly wrote in his concept note on R:P: 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 eective action.
,,
But all considered, insistence on the Councils 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. Tis 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 justiable 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, :: March :cc, (UN
Doc A/,,/:cc,) para. :,,: Tis responsibility lies, rst and foremost, with each individual
State, whose primary raison dtre 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
insucient, 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 ::, para. :,,: through the Security Council.
,:)
See M. Byers, War Law: Understanding International Law and Armed Conict (Atlantic
Books, London, :cc,) pp. ::c:::: 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, conict 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.
,,)
Liechtenstein (A/o,/PV.,;, p. ::); Costa Rica (A/o,/PV.,;, p. :); New Zealand (A/o,/
PV.,;, p. :,); Switzerland (A/o,/PV.,, p. ,); Norway (A/o,/PV.,,, p. ;); Rwanda (A/o,/
PV.,,, p. :c); Swaziland (A/o,/PV.:cc, p. ::); Benin (A/o,/PV.:cc, p. :;).
,)
A/o,/PV.,,, p. , and ,.
,,)
Concept note, supra note :,, p. ,.
15
DOI: 10.1163/157237411X584075
shield against unilateral interventions which are prone to abuse.
,o
On the
other hand, the possibility of an abusive veto within the Council must be
taken into account as well (see below part o).
Within the framework of R:P, 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. Tis has been unduly drawn into question by the
President of the General Assembly. His concept note refers to article ,c(:)
(a) of the ILC Articles on State Responsibility.
,;
Tis provision states that
countermeasures shall not aect the obligation to refrain from use of force
and thereby excludes countermeasures with military means. However, the
third pillar of R:P, 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.
Te crucial issue of Security Council action within the paradigm of
R:P is not the allowance of military action. Te salient point is rather that
Security Council action, including coercive action, would no longer been
a permissive authority (a right) but an armative obligation (a duty).
.:. Security Council not Legibus Absolutus
If R:P is a legal or at least nascent legal principle, then the Security Councils
duty to take suciently robust action in an R:P situation is not only a moral
,o)
See, for a recent restatement of the international rules on humanitarian intervention,
Institut de Droit International, session de Santiago (:cc;), :cth Commission, Present
Problems of the Use of Force in International Law, sub-group on humanitarian intervention
(prepared by M. W. Reisman). Tat 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. :c:). Te 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.
:c:).
,;)
Concept note, supra note :,, p. ,.
16
DOI: 10.1163/157237411X584075
duty, as the Secretary-General had postulated in his Millennium Report of
:ccc,
,
but a legal one. Te 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. Tis traditional view was
defensible with the observation that pernicious consequences need not be
feared. Te 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. Te rule of law also governs decisions of the Security Council. Te
idea of legal limits to Security Council action was advanced by the ICJ as
early as :, in the advisory opinion on the admission of new members to
the UN. Here the Courts 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.
,,

Te view that the Security Council is not legibus absolutus has been
forcefully conrmed in the ICTY Tadic decision.
oc
Because the UN enjoys
international legal personality, it is itself bound by general customary
,)
Secretary-General, Millennium Report, We the Peoples: Te Role of the United Nations in
the ::st Century, :; March :ccc, (UN Doc A/,/:ccc) para. ::, 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. Te report continues:
Te 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).
,,)
Conditions of Admission of a State to Membership in the United Nations (Article , of the
Charter), : May :,, International Court of Justice, Advisory Opinion, ICJ Reports :),, p.
,; at p. o. See also Dissenting Opinion of Judges Basdevant, Winiarski, Sir Arnold McNair
and Read, at pp. :,,, paras. ,, :c:,.
oc)
Prosecutor v. Dusko Tadic, : October :,,,, ICTY, Appeals Chamber, Case No IT-,-:-
AR;:, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras.
:o:.
17
DOI: 10.1163/157237411X584075
international law and by treaty obligations it incurs. Te 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.
Te Security Council is bound at least by the Purposes and Principles of
the Charter (cf. article :(:) of the UN Charter), which include customary
human rights law and the right to self-determination (cf. article :(:) and (,)
UN of the Charter).
o:
Tese rights are typically at risk in an R:P situation.
It is therefore consistent that both the High-level Panel on Treats,
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.
o:
Te 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.
o,
To conclude, the Security Council under current international law enjoys
discretion, but this discretion is not unfettered.
o
Discretion, as a legal and
even constitutional concept, is per denitionem subject to some outer limits.
Discretion is in a way the opposite of arbitrariness.
o:)
See, e.g., S. Lamb, Legal Limits to United Nations Security Council Powers, in G. S.
Goodwill-Gill (ed.), Te Reality of International Law: Essays in Honour of Ian Brownlie (Oxford
University Press, Oxford, :,,,), pp. ,o:,; M. Wood, Te UN Security Council and
International Law, Second Lecture: Te Security Councils Powers and their Limits, Hersch
Lauterpacht Memorial Lectures, Lauterpacht Centre for International Law, University of Cam-
bridge, ;, November :cco, <http://www.lcil.cam.ac.uk/lectures/:cco_sir_michael_wood.
php>; K. Manusama, Te United Nations Security Council in the Post-Cold War Era: Applying
the Principle of Legality (Martinus Nijho Publishers, Leiden, :cco), pp. ,o.
o:)
High-level Panel, supra note ,o, paras. :c;:c,; Secretary-General :cc,, supra note ,:,
para. ::o.
o,)
High-level Panel, supra note ,o, paras. :c:c,. Te 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.
o)
G. Cahin, La notion de pouvoir discrtionnaire applique aux organisations interna-
tionales, :c; RGDIP (:cc,) pp. ,,,occ.
18
DOI: 10.1163/157237411X584075
.:. Legal Limits on Inaction (Passivity)
Te next step in the argument is that legal limits do not only apply to Security
Council action, but also to its inaction. Tere is no reason to treat an explicit
or implicit Council decision not to authorise robust action fundamentally
dierently 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 dierent manner, and vice versa.
Te possibility of legal responsibility for inaction, omissions, or passivity
is well established in all criminal legal systems,
o,
and also in tort law. Most
importantly, it ts 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.
oo
Governmental
passivity is here apt to trigger state responsibility for the states 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.
o;
Although the Council may in principle be held liable for passivity, the
trigger or threshold may dier from the situation of rendering it responsible
for action. Tis modication 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
o,)
See, e.g., Prosecutor v. Rutaganira, : May :cc,, ICTR, Trial Chamber III, Case No ICTR-
,,-IC-T, paras. o:,: on the complicity of a town counsellor in the crime of extermination
through omission. Te trial chamber saw the actus reus in the councillors failure to full his
legal duty, incumbent on him through his public oce, to act in order to protect human
life.
oo)
In a seminal contribution, Henry Shue identied the following three duties owing 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, :,c),
pp. ,,o). Shues point was that so-called negative and positive rights have a similar
structure. Te three duties are meanwhile generally called obligations to respect, protect,
and full.
o;)
UN Human Rights Committee, General Comment No. ,: [o], Nature of the General Legal
Obligations imposed on State Parties to the Covenant, :o May :cc (CCPR/C/::/Rev.:/Add.
:,) para. . For the ACHR, see Velsquez Rodriguez v. Honduras, :, July :,, Inter-American
Court of Human Rights, Series C No. , paras. :;::;;. See, on the ECHR, C. Drge, Positive
Verpichtungen der Staaten in der Europischen Menschenrechtskonvention (Springer Verlag,
Berlin, :cc,). See, for gender-based violence, M. Hakimi, State Bystander Responsibility,
:: EJIL (:c:c) pp. ,:,, at pp. ,;,,,; for a transfer of these principles to the context of
R:P, see Rosenberg, supra note c, pp. ,,,,.
19
DOI: 10.1163/157237411X584075
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.
o
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.
Te 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.
Te 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.
o,
However, the
cautious stance of that advisory opinion need not be followed in R:P situ-
ations. Te 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.
.,. Legal Limits of Discretion
Under the rule of law, the Security Councils manoeuvring space (i.e. in
legal terms both its marge dapprciation and its discretion) are limited on
three dierent levels. Te rst level is the interpretation of the relatively
imprecise notion threat to the peace in article ,, of the UN Charter, and
its application to the facts. Since :,,c, that notion has been continuously
o)
Osman v. UK, : October :,,, European Court of Human Rights, Case No
;/:,,;/;:/:c,, Reports :,,-VII ,::, para. ::o.
o,)
Wall Opinion, supra note , para. :oc.
20
DOI: 10.1163/157237411X584075
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 R:P, 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. Tis 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. Terefore, the Security Council
is not completely free in assessing whether to qualify an R:P situation as
a threat to the peace in terms of Chapter VII or not. It does enjoy a marge
dapprciation, but this is within limits. An ongoing genocide, for instance,
must be qualied 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 Councils discretion is limited. It is limited in deciding
whether to take action at all, and what action. Tis 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. Tis means that the concept R:P
could give rise to an obligation on the Security Council to intervene in R:P
situations. Article VIII of the Genocide Convention, which states that the
United Nations organs must take appropriate action for the prevention
of genocide, conrms this nding.
Non-intervention would then trigger the international responsibility
of the United Nations.
;c
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 armed
;c)
G. Gaja, Tird Report on the Responsibility of International Organisations, :, May :cc,
(UN Doc A/CN./,,,) para. :c: 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. Diculties relating to the decision-making process could not exonerate the
United Nations.
21
DOI: 10.1163/157237411X584075
by state practice.
;:
Te 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 P,. Tey 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.
,. States as Bearers of the Responsibility to Protect
Te obligation to react (somehow) in an R:P 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 : 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.
Te responsibility to protect is the subsidiary responsibility of all states,
including the members of Security Council (even if that organ is the
rst 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 dierent.
;:
Individual states may not have an obligation to act
unilaterally, but rather an obligation to cooperate with multilateral eorts
to protect. Teir obligations may range from mere non-recognition to
nancing measures to sending troops. What exactly is owed by bystanders
in an R:P situation depends on parameters such as the kind and extent of
harm occurring, the bystander states relationship with the abuser, and the
bystander states capacity to inuence eectively the action of persons likely
to commit or already committing one of the core crimes. Tat capacity in
;:)
Alvarez, supra note :o, p. ::.
;:)
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 o;, pp. ,:,,.
See also Arbour, supra note ,,, pp. ,:,,, focusing on the criteria of inuence, proximity,
and information; Welsh and Banda, supra note :,, pp. ::,::,; J. Pattison, Humanitarian
Intervention and the Responsibility To Protect: Who Should Intervene? (Oxford University Press,
Oxford, :c:c), 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.
22
DOI: 10.1163/157237411X584075
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 bystanders disposal would have been in themselves
sucient to prevent the crimes.
;,
Tese possible criteria for assigning responsibility point to dierent solu-
tions, and each has its drawbacks. For example, an actor with special ties
might have its own agenda. Te 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 eectiveness.
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
dierent degree of intensity. Moreover, the admissible means to discharge it
are modied. Te choice of means may be legally limited. Certain measures
remain illegal, even if they might be eective 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.
;
But they must still react appropriately.
;,)
Cf. Genocide (Bosnia), supra note ,, para. ,c on the obligations of third states to prevent
genocide. See, for reection on the parameters of the capacity to inuence eectively in
the context of R:P, Rosenberg, supra note c, pp. o;o,.
;)
Te ICISS, supra note :o, was not sure about this. See para. o.:: 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. Te task is not to nd alternatives to the Security Council as a
source of authority, but to make the Security Council work much better than it has. Para.
o.:,: Security Council authorization must in all cases be sought prior to any military
intervention action being carried out. Para. o.:: We have made abundantly clear our
view that the Security Council should be the rst 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 Councils past inability or unwillingness to full the role
expected of it, if the Security Council expressly rejects a proposal for intervention where
23
DOI: 10.1163/157237411X584075
Te ILC Articles on State Responsibility lay down specic 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.
;,
Tese rules are applicable to R:P 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
:(:) 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 c. Te insistence by article : of the ILC Articles on
State Responsibility on lawful means excludes the resort to military force
in violation of article :() 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 conrmation of the ILC
Articles obligation to cooperate, does not include unilateral recourse to
force.
;o
Under article :(:) 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.
;;
Te parallel provision is article :(:) of the DARIO: States and inter-
national organizations shall cooperate . Te technical scope of this draft
humanitarian or human rights issues are signicantly at stake, or the Council fails to deal
with such a proposal within a reasonable time, it is dicult to argue that alternative means
of discharging the responsibility to protect can be entirely discounted. Para. o.,;: it would
be impossible to nd consensus, in the Commissions 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 ,o.
;,)
Art c of the ILC Articles on State Responsibility.
;o)
L.-A. Sicilianos, Entre multilatralisme et unilatralisme: Lautorisation par le Conseil
de scurit de recours la force, ,,, Recueil de Cours de lAcadmie de la Haye (:cc) pp.
,,o at pp. ::,.
;;)
Wall Opinion, supra note , para. :,,.
24
DOI: 10.1163/157237411X584075
provision relates only to situations where an international organization has
committed a serious breach of a peremptory norm. Te 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.
Te abovementioned obligations to cooperate to bring to an end the R:P
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. Te ensuing question then is whether non-cooperation would
itself be illegal and trigger state responsibility (this will be discussed in
part ;). A further question is that of the relationship between the dierent
obligees, as far as their primary and secondary obligations (responsibility)
are concerned. For example, the secondary responsibility might be parallel,
joint, or staggered.
. Security Council Member States as Bearers of the Responsibility to
Protect
o.:. Specic 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 R:P crimes and
violations. Tis follows, apart from article :(:) of the ILC Articles on State
Responsibility as discussed above, additionally from the Council members
obligation to full in good faith the obligations assumed by them in ac-
cordance with the UN Charter (article :(:) of the UN Charter and article
:o of the VCLT).
;
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
;)
E. Davidsson, Te UN Security Councils Obligations of Good Faith, :, Florida Journal
of International Law (:cc,) pp. ,:,;,.
25
DOI: 10.1163/157237411X584075
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.
;,
Due to this triplement fonctionnel,
c
their voting
behaviour is subject to legal limits. Teir position as trustees prohibits them
handling their participation rights in the collective body in an arbitrary
fashion. As a minimum, the duciary obligation of the members of the
Security Council brings with it an obligation to balance all relevant aspects.
:

Tis 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.
o.:. Increased Responsibility of the P,
An obligation to vote positively is incumbent on all members of the Council.
However, the permanent members are in a legally dierent 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 eect on
Security Council policies. So it seems that the obligations falling on the
non-permanent members should be somewhat less strict than for the P,.
Te P,s privilege within the Security Council, the veto power, is only
justiable in a constitutionalised order with a view to those members special
military and economic capabilities. Te veto power is thus intrinsically
correlated with a special responsibility. It is therefore submitted that the
;,)
Admission to Membership in the UN, supra note ,,, para. :c: [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).
c)
Cf. the term ddoublement fonctionnel as coined by Georges Scelle, who used it in a
quite dierent sense, and applied it mostly to domestic courts acting as agents of the inter-
national community (G. Scelle, Le phnomne juridique du ddoublement fonctionnel,
in W. Schtzel and H.-J. Schlochauer (eds.), Rechtsfragen der internationalen Organisation:
Festschrift fr Hans Wehberg zu seinem ;o. Geburtstag (Klosterman, Frankfurt a.M., :,,o),
pp. ,:,:).
:)
M. Herdegen, Vlkerrecht (Beck, Mnchen, ,th ed., :c:c), p. ,:,.
26
DOI: 10.1163/157237411X584075
hard legal obligation to protect populations threatened by the R:P crimes
especially falls on the permanent members of the Security Council.
:
Te conclusion drawn by the delegate of Liechtenstein in the debate
leading to SC Resolution :o; on the protection of civilians was: Tat
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.
,
Already the ICISS had suggested that
when action is needed to stop or avert a signicant 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.
Te High-level Panel
Report of :cc 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.
,
Te 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 eectively with cases of extreme humanitar-
ian crisis.
o
Most recently, the Secretary-General evoked the P,s special
responsibility in his :cc, Report on the Implementation of R:P:
Within the Security Council, the ve 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 dened in paragraph :, of the Summit Outcome document, and to
reach a mutual understanding to that eect.
;
:)
In this sense, see also Arbour, supra note ,,, pp. ,,,, 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.
,)
Statement of Liechtenstein in the debate on SC Res. :o;, , December :cc, (S/PV.,,:,
(Resumption :)), p. :, (emphasis added).
)
ICISS, supra note :o, para. o.::.
,)
High-level Panel, supra note ,o, para. :,o.
o)
Te Independent International Commission on Kosovo, Te Kosovo Report: Conict,
International Response, Lessons Learned (Oxford University Press, Oxford, :ccc), p. :,.
;)
Secretary-General :cc,, supra note ::, para. o:.
27
DOI: 10.1163/157237411X584075
o.,. Exercise of Veto in an R:P Situation as Abus de Droit
I 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. Tis
controversy hinges on the legal qualication of the vote (and of the veto).

Te 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 dierently, 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.
,

Te qualication 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 organizations decision,
such as a vote in the Security Council, is not a sucient condition for the
adoption of the Security Councils 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. Terefore it has been
argued that the member states vote is not itself a legal act. It does not have
any normative eect, but is completely consumed by the decision of the
Council, to which it contributed.
From the qualication 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. Terefore, from the vote itself, no legal obligation can arise.
,c
On
the secondary level of legal responsibility, the exercise of the veto cannot,
according to that view, engender legal responsibility.
,:
)
See the lucid analysis by E. Lagrange, La representation institutionelle dans lordre inter-
national (Kluwer Law International, Te Hague, :cc:), pp. ,:,,,.
,)
See Lagrange, ibid., pp. ,:o,:; specically 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. ,:;).
,c)
Lagranges 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. ,:c).
,:)
But see this papers argument on state responsibility arising from an abusive veto in part
;.:.
28
DOI: 10.1163/157237411X584075
A related argument is that the exercise of the veto is an acte de gouverne-
ment.
,:
Terefore, 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. Tis 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.
,,
However, this qualication of the veto is not fully persuasive. A states
vote contributing to an organizations decision is, if not a legal act in itself,
still an indispensable element of a legal act. Even if it is in itself not sucient
to create a legal act, it is a necessary condition. Moreover, a vote (including
a veto) can in exceptional cases have a dual signicance, and can be an
additional manifestation of will of the state (prior or subsequent or simply
in addition to the organizations decision).
,
I submit that the veto is a procedural right, and can therefore be abused. Te
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.
,,
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.
,o
Put
dierently, 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.
,;
So although it may be the
,:)
Lagrange, supra note , p. ,,,.
,,)
Ibid., p. ,,:.
,)
Ibid., p. ,:.
,,)
Cf. A. Kiss, Abuse of Rights, in R. Wolfrum (ed.), Max Planck Encyclopedia of Inter-
national Law (Oxford University Press online, :cc,), <http://www.mpepil.com>; M. Byers,
Abuse of Rights: An Old Principle, A New Age, ; McGill LJ (:cc:) pp. ,,,:.
,o)
G. Fitzmaurice, Te Law and Procedure of the International Court of Justice, :,,,:
General Principles and Sources of Law, ,, BYIL (:,,,) pp. :,:,: at p. :c,. In this sense,
see also Kiss, supra note ,,, paras. , and ,:.
,;)
Kiss, supra note ,,, paras. : and . Another type of an abuse of rights is the situation that
a state exercises a right for an end dierent from that for which the right was created, to the
29
DOI: 10.1163/157237411X584075
right of a P, state to exercise the veto, its exercise in a concrete situation
may be abusive. Finally, it is controversial whether the nding of an abuse
of rights requires the nding that there has been some injury.
,
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 eorts
of others to have the embargo lifted and that these actions amounted to
complicity in genocide.
,,
A :,o resolution of the General Assembly called for the good use of
the veto.
:cc
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.
:c:
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.
:c:

UN members must exercise their voting power in good faith, in accordance
injury of another state (ibid., paras. : and ,). Tat second type of abuse of rights resembles
the French concept of dtournement de pouvoir.
,)
Ibid., para. ,:.
,,)
Declaration of Bosnia Herzegovina of :, December :,,, , ICLQ (:,,) p. ;:. Tat
complaint was never lodged.
:cc)
In Resolution c(I) of :: December :,o on the Voting Procedure in the Security
Council, the General Assembly [e]arnestly requests the permanent members of the Security
Council to make every eort, 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.
:c:)
GA Res. ,;;A(V) Uniting for Peace, , November :,,c, para. , 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).
:c:)
Admission to Membership in the UN, supra note ,,, para. ::. See also para. ,: Te 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
30
DOI: 10.1163/157237411X584075
with the Purposes and Principles of the Organization and in such a manner
as not to involve any breach of the Charter.
:c,
To conclude, it seems possible
to qualify the exercise of the veto in an R:P situation as an abus de droit.
;. Legal Consequences of a Permanent Members Veto in an RiP
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.
;.:. Irrelevance or Illegality of an Abusive Veto
Te procedural rule of article :;(,) of the UN Charter, which foresees
unanimity among the P, could be interpreted systemically, and take into
account the responsibility to protect as a relevant rule of international law
in the sense of article ,:(,)(c) of the VCLT. Te systemic interpretation would
lead to qualifying an abusive refusal to concur by a P, 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.
:c
Te legal irrelevance of an abusive veto also ows from
the general principle that the United Nations may not invoke internal
procedural problems to justify its breach of international law.
:c,
A more radical proposition is that an abusive veto should be treated as an
illegal act. Tis proposition has so far not been accepted in state practice,
although it seems doctrinally consistent. Te endorsement of R:P 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.
:c,)
Ibid., para. :,.
:c)
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution :; (:);o), :: June :,;:, International
Court of Justice, Advisory Opinion, ICJ Reports :);:, p. :o at p. ::, para. ::.
:c,)
Tis general principle of international legal responsibility has so far been codied only
for the special case of the failure to perform a treaty (cf. article :; of both VCLT :,o, and
VCLT :,o).
31
DOI: 10.1163/157237411X584075
It follows that a permanent members exercise of the veto power in an R:P
case would be illegal, because it breaches the obligation to protect, conceived
as a primary rule of international law.
;.:. 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. Tere would therefore
be, on the level of secondary rules, a corresponding liability for a failure to
protect. Te 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 states own conduct. I will examine
both propositions separately.
;.:.:. No Responsibility for the Inaction of the United Nations, Attributed
to the Member State
Te United Nations possesses legal personality
:co
and is not a mere alter
ego or agent of the member states. From this distinct personality ows
the distinct responsibility of the organization.
:c;
Tis means that, as a
rule, unlawful conduct of the United Nations, acting through the Security
Council, cannot be attributed to its member states.
:c
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. Te contrary view, as espoused,
:co)
Reparation for Injuries Suered in the Service of the United Nations, International Court
of Justice, Advisory Opinion, ICJ Reports :),), p. :; at pp. :;,:.
:c;)
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, oo:: Institute of International Law Yearbook (:,,,)
p. ::, para. :c: (emphasis added).
:c)
Ibid. at p. :,: It seems clear that under international law the acts of an international
organization with separate personality would not be attributable to the member states. Tis
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.
32
DOI: 10.1163/157237411X584075
for example, by the delegation of China in the o
th
Committee of the UN
General Assembly, nding 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,
:c,
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.
::c
Tis would
be especially relevant for leading member states, such as the permanent
members of the Security Council.
:::
Such an additional responsibility of a P,
state for the inaction of the UN could notably occur in the event of an abuse
of the organizations legal personality by the respective member state.
:::
Te
inuence 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 stiing any adverse opinion that could be expressed.
::,

:c,)
Delegation of China in oth 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, :cco (A/CN./,o/
Add.:) para. ,.
::c)
According to article o: of the DARIO (reproduced in A/o/:c, p. ,), 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 oth Committee opined that in
principle member states were not responsible, but held that they could incur responsibility
in certain exceptional circumstances (Italy: A/C.o/oc/SR.::, para. ,), in case of negligent
supervision of organizations (Austria: A/C.o/oc/SR.::, para. o,), 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 organizations activity (Belarus: A/C.o/oc/
SR.::, para. ,:).
:::)
In his report in :cc,, the Special Rapporteur noted that a further proposal raises a
dierent 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 :c,, para. ,c.
:::)
J. DAsprmont, Abuse of the Legal Personality of International Organizations and the
Responsibility of the Member States, International Organizations Law Review (:cc;) pp.
,:::,.
::,)
Ibid., p. :c,.
33
DOI: 10.1163/157237411X584075
However, the exercise of the veto power is not abusive of the UNs 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
Nations legal personality as a smoke screen even when it leads to a wrongful
absence of action or decision by the organization.
::
Terefore any responsibility of a member state, notably a P, state, cannot
be conceived as a responsibility for the unlawful passivity of the organization
(acting through the Security Council) in an R:P situation, which would
be attributed to that member state. Te organizational veil is thick and
should not be pierced.
;.:.:. 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. Tis
is a responsibility for the violation of any other obligation of the state
owing from norms other than the constituent charter of the international
organization,
::,
in our case an obligation owing from the principle of R:P.
Te doctrinal precondition for such a responsibility is that R:P is an
own obligation of the member state, and not only an obligation of the
Security Council. As explained above (parts , and o), such an obligation to
vote positively is conceivable. Terefore 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.
::)
Ibid., p. ::c.
::,)
P. Klein, La responsabilit des organisations internationales (Bruylant, Bruxelles, :,,), p.
c.
34
DOI: 10.1163/157237411X584075
Te permanent members responsibility can be construed as complicity
in the unlawful inaction of the Security Council.
::o
Complicity is a notion
which is used in scholarship on international responsibility and in the case
law.
::;
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 :o of the ILC Articles regulates aid or assistance in the commission
of an internationally wrongful act, and article :; 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.
::
Tis prohibition is relevant for our problem to the extent that
the responsibility to protect is triggered by imminent or ongoing genocide.
Te 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 :cc,
Draft Articles prohibit complicity by states through aiding or assisting an
international organization in committing an illegal act, or for directing or
controlling (articles ,; and , of the DARIO, adopted at rst reading in
:cc,).
::,

::o)
See, in favour of the possibility of complicity, ibid., p. o,: Te 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.
::;)
See Genocide (Bosnia), supra note ,, paras. :,:c on complicity in genocide in the
sense of article III(e) of the Genocide Convention and aid or assistance in terms of article :o
of the ILC Articles on State Responsibility. Te ICJ qualied these two as basically identical
concepts.
::)
Ibid., paras. :o:.
::,)
Article ,;: 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) Tat State does so with knowledge of the circumstances of the
internationally wrongful act; and (b) Te act would be internationally wrongful if committed
by that State. Art ,: 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) Tat State does so with
knowledge of the circumstances of the internationally wrongful act; and (b) Te act would
be internationally wrongful if committed by that State. (text reproduced in A/o/:c, p. ,;).
35
DOI: 10.1163/157237411X584075
As a rule, lawful participation in the international organizations decision-
making process does not amount to aiding or assisting (or direction and
control) in the sense of those prohibitions.
::c
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.
:::
It admitted
that [t]his could entail some diculties in ascertaining whether aid or
assistance has taken place in borderline cases. Te factual context such as
the size of membership and the nature of the involvement will probably be
decisive.
:::
Te boundary line between lawful participation in the Security
Councils 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 o.,. Te relationship
between the respective member states international legal responsibility and
the organizations legal responsibility would still have to be dened.
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 (:)(b) of the ILC Articles on State
Responsibility. Te Security Councils obligation to intervene, owing 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. Te Obligation to Give Reasons for a Veto
Te idea developed in the preceding part, namely that preventing the
Council from taking robust action in a generally acknowledged R:P
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.
::c)
Report of the International Law Commission on its :st Session, :cc, (A/o/:c) Commentary
on article ,;, para. :: Should the State be a member, the inuence 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 ,, para. :.
:::)
Ibid.
:::)
Ibid., commentary on article ,, para. :: Te identication of direction and control
in the commission of an unlawful act by the organization, as opposed to normal and lawful
participation in the organizations decision-making process should, according to the ILC,
follow the same criteria.
36
DOI: 10.1163/157237411X584075
So the principle of R:P 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 ve small countries
(the S,) have repeatedly proposed to oblige the permanent members of
the UN Security Council to explain their reasons for using the veto.
::,
Te
Council reacted in :cco with a o,-point declaration in which the members
of the Council committed themselves to intensify their eorts to publicise
decisions.
::
Tis 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.
Te rst foundational principle is the international rule of law. If we
accept that the Security Council is operating under the rule of law, the
Councils 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 :,o TFEU
(ex-article :,, EC)). Te 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. Tereby 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 Councils (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 diers
from the successful adoption of a legal act. In that situation, the legally
relevant elements are the votes of the Council members themselves. Tese
members are bound by the domestic and international rule of law, and are
::,)
First proposal by Costa Rica, Jordan, Liechtenstein, Singapore, Switzerland, :; March
:cco (UN Doc A/oc/L.,). At the time of writing, the S, intend to table a second similar
proposal in the General Assembly in summer :c:: (draft resolution of : April :c::, agenda
item ::, follow-up to the outcome of the Millennium Summit; see also Neue Zrcher Zeitung
of :, April :c::).
::)
Declaration of :, July :cco (annex to the Note by the President of the Security Council,
S/:cco/,c;).
37
DOI: 10.1163/157237411X584075
therefore obliged to give reasons for their action as well. Te fact that this
principle is not strictly observed is mainly due to political opportunism,
but is actually in contravention of the rule of law.
Te 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 sucient support for a
more limited procedural obligation relating to core crimes. It is meanwhile
universally acknowledged that the core crimes require specic vigilance
by the international community. Te practice of states and international
organizations, as displayed in ocial statements and publications, has
given rise to a general public expectation that the Council should take
suciently robust action in R:P cases. In legal terms, this expectation might
be qualied, if not a material strict obligation to intervene, then a legal
presumption that some action is due. Te legal correlate of this presumption
is the obligation to give reasons for and explain inaction. Put dierently, in
the current stage of development of international law, R:P has reversed the
onus of justication for the voting behaviour of the members, especially the
permanent members, of the Security Council.
::,
Tis procedural burden
is all the more appropriate as in real life the question whether a concrete
situation really constitutes an R:P case will often arise. Te explanation
why no action is taken will inevitably have to engage with the facts, and is
therefore apt to help clarifying them.
Te 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 selsh appeals. Tis has been called the civilizing force of
::,)
Verlage, supra note :, pp. :,c:,, with further references.
38
DOI: 10.1163/157237411X584075
hypocrisy.
::o
Tese reasons, even if they may be hypocritical, still have the
consequence of generating better outcomes, because the bad arguments
are ocially banned and have therefore much less power to inuence the
ultimate decision that has been reached. And this applies also to the Security
Council and its members.
Te 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. Tis 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.
. Conclusion: Te Limits of International Law and the
Responsibility of Lawyers
It has been demonstrated that, if R:P 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 R:P 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. Te Security Council may authorise,
but can in factual terms not compel such action. Tere 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 R:P situation. So the Security
Councils role in authorising actions designed to full the international
communitys responsibility can only be a rst step, a necessary but not
::o)
J. Elster, Deliberation and Constitution Making, in J. Elster (ed.), Deliberative
Democracy (Cambridge University Press, Cambridge, :,,), pp. ,;::: at p. :::.
39
DOI: 10.1163/157237411X584075
sucient condition for actually discharging the responsibility to protect in a
situation where non-military means were of no avail. Tis fact already might
be the decisive reason precluding any conceptualisation of the Councils
responsibility as a legal one. In consequence, the Council could not be held
liable for non-fullment.
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 R:P, if endorsed as a legal
principle, are rather serious. Spelling out the consequences to their very
end is apt to deter states from accepting R:P as a hard legal obligation. Te
prospects of endless chains of legal obligations might in the nal 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 R:P
completely in terms of a substantive legal obligation of all states and the
UN, non-fullment 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. R:P has probably already shifted the onus of justication 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. Te 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).
Te question then arises what this procedural aw implies for the legal
authority of the Security Councils ensuing decision or non-decision.
Would it have to be considered as devoid of legal authority? And if yes,
40
DOI: 10.1163/157237411X584075
would this mean that a unilateral humanitarian intervention then became
permissible? Te 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 full 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 NATOs Kosovo intervention.
But the main benet of the procedural conception lies, it is submitted, in
the preventive civilising discursive eect 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
R:P, as advanced in this paper, are far from resolved. Tey 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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