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The responsibility to protect : legal rights and obligations to save humans from mass murder and ethnic… Kolb, Andreas Stephan 2008

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THE RESPONSIBILITY TO PROTECT: LEGAL RIGHTS AND OBLIGATIONS TO SAVE HUMANS FROM MASS MURDER AND ETHNIC CLEANSING by  ANDREAS STEPHAN KOLB  A THESIS SUBMITTED TN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August2008  © Andreas Stephan KoIb, 2008  ABSTRACT The context for this work is set by the proliferation of intrastate conflicts and the international legal debate of humanitarian intervention. The thesis specifically addresses the concept of the “Responsibility to Protect” (R2P) as formulated by the International Commission on Intervention and State Sovereignty (ICISS). The objective is to assess the present quality of R2P as a concept of international law. Five components of the R2P framework are discussed: the primary responsibility of every state to protect its population from large-scale killings and large-scale ethnic cleansing; the right of other states to collective humanitarian intervention through the United Nations; a right of unilateral humanitarian intervention without prior Security Council authorization; the responsibility of the international community to take military action; and the criteria for external military involvement. Methodologically, the analysis is grounded in the dominant theory of legal positivism and its doctrine of sources, which requires notably an analysis of treaties and customary international law. An ethical theory is devised and applied, however, to remedy inadequacies of a strictly positivist method that sets out to determine international law solely on the basis of hard facts. These ethical considerations serve as a background theory to provide guidance in difficult cases of treaty or customary law analysis, and they fill gaps in positive international law as legally binding “principles of ethical law”. In conclusion, the individual components of R2P differ in terms of their legal status and the degree to which it can be explained by the traditional posivist approach to international law. The primary responsibility of every state has become accepted as a hard norm of international customary law; the right of collective humanitarian intervention is provided for in Chapter VII of the UN Charter; a right of unilateral humanitarian intervention has become part of the international legal system as a “principle of ethical law”; the residual responsibility of the international community is a principle of “legal soft law”; finally, positive international law defines no criteria delineating the permissible and required use of force for the protection of foreign populations.  11  TABLE OF CONTENTS ii ABSTRACT TABLE OF CONTENTS ACKNOWLEDGEMENTS CHAPTER 1: HUMANITARIAN iNTERVENTION AND THE CONCEPT OF A 1 RESPONSIBILITY TO PROTECT iN THE AGE OF “NEW WARS” CHAPTER 2: ICISS AND R2P FROM A “RIGHT OF HUMANITARIAN 11 INTERVENTION” TO A “RESPONSIBILITY TO PROTECT” 11 2.1 Political Background and Conceptual History of R2P 15 Report R2P s 2.2 Main Intellectual Contribution of the 20 2.3 Strategies for an Impact on International Politics 23 Report R2P to 2.4 Academic Reactions the 26 2.5 The International Political Discourse on R2P 28 International Law y Contemporar R2P in of Status the on 2.6 Academic Commentary 32 2.7 Outlook CHAPTER 3: LEGAL THEORY AND THE LAW OF HUMANITARIAN INTERVENTION33 34 3.1 The Dominant Theory: Legal Positivism and the Law of Humanitarian Intervention 35 3.1.1 Conceptual Basics of Legal Positivism 36 Sources 3.1.2 The Positivist Doctrine of 39 3.1.3 Conceptual and Operational Difficulties in the Doctrine of Sources 39 3.1.3.1 Treaties 41 3.1.3.2 Customary International Law 41 3.1.3.2.1 Conceptual-Jurisprudential Problems 44 3.1.3.2.2 Operational Problems 46 3.1.3.3 General Principles of Law 49 Theory 3.2 The Traditional Antipole: Natural Law 49 3.2.1 History and Main Characteristics of Natural Law Thinking 50 3.2.2 Conceptual Problems and Decline 3.3 Modern Alternatives: Approaches that Apply the Positivist Legal Sources and Ethical 54 Considerations 55 3.3 1 Background Theory Guiding Treaty Interpretation and Customary Law Analysis 58 3.3.2 General Principles of Moral Law cal Problems Methodologi Central and 3.4 General Recognition of the Positivist Framework 59 Confronted in the Analysis of R2P R2P 61 and Intervention Humanitarian 3.5 Discussion: Proper Approach to the Law of 61 3.5.1 Redefinition of the Opinio Juris Requirement 63 Practice State and Juris 3.5.2 Evidence for Opinio 65 3.5.3 Ethical Background Theory for Treaty and Customary Law Analysis 66 Principle Consent the of Light the in Appraisal 3.5.3.1 67 3.5.3.2 Appraisal in the Light of the Separability Thesis 70 3.5.3.3 The Risk of Subjectivism 71 3.5.3.4 Conclusion 71 3.5.4 Ethical Principles Closing Gaps in the Legal System 73 Principle 3.5.4.1 Appraisal in the Light of the Consent 74 3.5.4.2 The Legitimating Force of State Consent 75 3.5.4.3 Lack of Effectiveness 76 3.5.4.4 Risk of Subjectivism 77 Predation of 3.5.4.5 Risk -  ....  111  78 3.5.4.6 Inconsistencies and Exceptions to the State Consent Principle 81 3.5.4.7 Conclusion 81 3.6 Conclusions and Outlook 83 CHAPTER 4: THE ETHICS OF R2P 84 Empiricism over Philosophy Moral of a Preferability The 4.1 Theory of Ethics: 88 4.2 Model for Ethical Arguments: Rawis’s Social Contract in the Original Position 91 Populations of their Protection the for States ty of 4.3 The Responsibili 92 4.4 The Case for a Right of Humanitarian Intervention 93 4.4.1 Human Dignity and Human Rights 94 Intervention 4.4.2 Specific Concepts Explaining the Legitimacy of Humanitarian 96 4.4.3 Preliminary Conclusions on the Scope of Justifiable Intervention 97 Intervention 4.5 General Challenges to the Legitimacy of Humanitarian 97 4.5.1 Humanitarian Intervention and Rights Theory Rights State of the and Rights Autonomous 4.5.1.1 Rights of the Target Community 97 Derived from Individuals 100 Citizens 4.5.1.2 Rights of Individual 102 4.5.2 Humanitarian Intervention and Adverse Consequences in Practice 102 4.5.2.1.RiskofAbuse 105 4.5.2.2 SeIf-Interestedness of the Interveners 106 of Consistency Lack 4.5.2.3 106 4.5.2.4 Addresses Only the Symptoms and Not the Underlying Causes 107 4.5.2.5 Uncertainties in Terms of Evidence 107 Intervention Humanitarian 4.5.3 Conclusion: Ethical Legitimacy of Collective 108 4.6 The Right of Foreign States to Unilateral Humanitarian Intervention 108 Authority of 4.6.1 The Question Right 110 4.6.2 Threat to International Peace and Security 111 System the UN of Role the to Threat 4.6.3 112 Intervention 4.6.4 Conclusions and Further Limitations on Humanitarian 112 4.7 The International Responsibility to Protect: An Ethical Duty to Intervene 118 4.8 Conclusion 119 CHAPTERS: STATUS OF R2P IN CONTEMPORARY INTERNATIONAL LAW 119 Practice Negative State to Interpretation Treaty 5.1 Elements of the Analysis From 120 5.1.1 General State Declarations in the Light of “9/11” and the Iraq War 122 or 7 Set-Back Success Summit World UN 5.1.2 The 2005 l2 5.1.3 International Reactions to Ongoing Humanitarian Crises 127 5.2 Primary Responsibility to Protect of the Host State 127 5.2.1 Sovereignty as Responsibility under the UN Charter 129 5.2.2 Traditional Understandings of State Soverei.gnty and Human Rights 131 Members UN 5.2.3 Subsequent Understandings and Practice of the 131 5.2.3.1 Pre-ICISS Developments 132 5.2.3.2 Post-ICISS State Practice 134 5.2.3.3 Appraisal: Responsibility to Protect as an Element of Sovereignty 136 Customary Duty an International as ty Protect 5.2.4. The Responsibili to 137 5.2.5 Conclusion: The Primary Responsibility to Protect as a Customary Obligation 137 Intervention Humanitarian Collective of 5.3 The Right 138 5.3.1 Collective Humanitarian Intervention in the Provisions of the UN Charter 139 5.3.2 New Shared Understandings of Chapter VII of the UN Charter Charter under UN Intervention the 5.3.3 Conclusion: Legality of Collective Humanitarian 146 -  —  —  iv  5.4 The Right of Unilateral Humanitarian Intervention 5.4.1. Unilateral Intervention under the UN Charter 5.4.2 Customary International Law on Unilateral Humanitarian Intervention 5.4.2.1 Interventionist Practice pre-ICIS S 5.4.2.2 Post-ICISS Practice 5.4.2.2.1 Intellectual Stimuli for the Development of a New Customary Norm 5.4.2.2.2 State Reactions to the ICISS Report 5.4.2.3 AU Charter and Ezuiwini Consensus 5.4.2.4 The World Summit Agreement 5.4.3 Conclusion 5.5 Residual Responsibility to Protect Borne by the International Community 5.5.1 Positive Duties in International Law prior to R2P 5.5.2 The International Responsibility to Protect as A Positive Obligation’? 5.5.3 State Reactions to the ICISS before and at the World Summit 5.5.4 The Collective Responsibility to Protect at the World Summit 5.5.5 The Collective Responsibility to Protect in state and UN practice 5.5.6 Negative State Practice in Darfur 5.5.7 Conclusion: International Responsibility to Protect as “Legal Soft Law” 5.6 Criteria for Humanitarian Intervention CHAPTER 6: HALF-HEARTED ADOPTION OF R2P INTO INTERNATIONAL LAW, POLITICAL RAMIFICATIONS AND FURTHER CHALLENGES BIBLIOGRAPHY  146 147 152 152 154 155 157 160 162 165 166 167 168 170 173 177 182 189 192 195 204  V  ACKNOWLEDGEMENTS I would like to gratefully acknowledge all those who have enabled me and helped to write this thesis by contributing intellectually or setting the framework for the completion of my work. First, thanks to all those within the Faculty of Law at the University of British Columbia who have supported me in my academic endeavors through discussions, advice and any other assistance. I would like to extend special thanks to Professor Ian Townsend-Gault, who has been a dedicated supervisor and helped me greatly both in preparing my thesis and with many other aspects of graduate studies at the UBC Faculty of Law. Thanks also to Professor Benjamin Perrin, second reader, for his thorough review of my work, for his ideas and perspectives, and the contribution that they have made to this thesis. Moreover, I would like to thank Joanne Chung, Graduate Program Advisor, for her dedication and invaluable assistance, and for always having an open door for her students. Secondly, I would like to thank those who have provided me with the funds to complete my studies, notably the UBC Faculty of Law, the Law Foundation of BC, the Studienstflung des deutschen Volkes, and my parents. Furthermore, I am very grateful to the Faculty of Law and Professor John Kleefeld for giving me the opportunity to gain valuable experience as a Teaching Assistant in the Legal Research and Writing program. Finally, and importantly, I would like to thank those who have for so many years supported me in overcoming any challenges, and given me the freedom to pursue my dreams, namely my parents and my partner, Janina. Also, I am grateful for the friendship of many wonderful people in the Graduate Program at the Faculty of Law and at UBC’s St. John’s College, who have made this year a unique personal experience. Thank you so much!  vi  CHAPTER 1: HUMANITARIAN INTERVENTION AND THE CONCEPT OF A RESPONSIBILITY TO PROTECT iN THE AGE OF “NEW WARS” Over the course of the last two decades, the world has witnessed horrendous human suffering in armed conflicts around the globe. As such, the perpetration of atrocities by human beings against their peers has surely neither been a new phenomenon nor a specific characteristic of this epoch. What is new, however, and an increasing challenge for the international legal system, is the form of these conflicts and the nature and extent of their impact on the civilian population. The history of the twentieth century in general has been marked by the immense bloodshed inflicted by humans upon humans as an effect of international and domestic warfare. For the most part of it, the bloodiest wars had been those fought between states in the pursuit of territory, wealth, and influence.’ Yet, since the end of World War II, changes can be observed in the 2 To label what has absorbed the international community, most noticeably in nature of conflicts. 3 these past two decades, the term “new wars” has been designed. “New wars” exhibit several characteristics that distinguish them from the bulk of earlier armed 4 conflicts. One central feature is that state borders no longer define the locus of a conflict. 5 By now, such internal wars Increasingly, wars are fought within, rather than between, states. 6 In the long decade between 1989 and 2001, account for the vast majority of all armed conflicts. 7 And in 2004, all conflict-related 118 civil wars broke out, compared with only 8 interstate wars. 8 emergencies of “pressing” concern were civil wars.  Another trend, which has accompanied the proliferation of civil wars, is the increased 9 Civilians, not soldiers, have become the main victims of these vulnerability of civilians. ‘See Thomas G. Weiss, Humanitarian intervention: ideas in Action (Cambridge: Polity Press, 2007) at 64 [Weiss, ideas]; Peter J. Hoffman & Thomas G. Weiss, Sword & Salve: Confronting New Wars and Humanitarian Crises (Lanham, MD: Rowman & Littlefield, 2006) at 59; see also R. J. Rummel, “War Isn’t This Century’s Biggest Killer” Wall Street Journal (7 July 1986) 12 (ProQuest Historical Newspapers) (noting 9 million battle deaths in World War I and 15 million battle deaths in World War II). 2 See Christopher C. Joyner, “The Responsibility to Protect’: Humanitarian Concern and the Lawfulness of Armed Intervention” (2007) 47 Va. J. Int’l L. 693 at 704 (Lexis). See Weiss, ideas, supra note 1 at 63-64 and generally at 59-67. lbzd. at 63-64. 4 ibid. at 61. 5 6 See Joyner, supra note 2 at 704. See Charles W. Kegley & Eugene R. Wittkopf, World Politics: Trend and Transformation, 9th ed. (Belmont, CA: Wadsworth/Thompson, 2004) at 425. 8 See Weiss, Ideas, supra note 1 at 62; Hoffman & Weiss, Sword & Salve, supra note 1 at 60. See International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development  I  10 The prevalence of civilian casualties is the result of a variety of ways in which the conflicts. use of military force affects civilian populations, including often, at the most extreme, their intentional targeting.” Assaults committed with genocidal intent ultimately aim at destroying 2 Even where a conflict party does not pursue the physical extermination of a whole populations.’ people, it may employ a number of different strategies against its members, such as their forcible ,’ or the use of systematic rape as a means of terror or to change the ethnic 3 displacement 4 These kinds of assaults on civilians have come to be grouped composition of that population.’ 5 under the euphemistic but nonetheless commonly used term of “ethnic cleansing”.’ Intentional assaults on civilians have recently been reported, for instance, out of the westSudanese region of Darfur, where “military, paramilitary, and police have employed a wide range of tactics against the civilian population [including] aerial bombings by tanks and other artillery, ground attacks  [...],  heavy shelling  [...], the bulldozing and burning of villages,  arrests  6 Such abstract reports may provide and extrajudicial execution, kidnapping, torture, and rape.” an insight into the means of contemporary warfare. Yet, psychologically, they are often inadequate to confer the actual meaning of these strategies for the targeted population, and the gravity of the suffering that is inflicted upon the victims. In an attempt to illustrate the fate of civilian victims in internal wars, I may therefore quote an 7 excerpt from an account that has been published in more shocking detail by Cherif Bassiouni.’ The story had been told to Professor Bassiouni by a Canadian prosecutor who investigated massive rape cases in the Balkans, and describes the cruelties committed against a Catholic Croat  Research Centre, 2001) at 4, online: ICISS <http://www.iciss-ciise.gc.ca/pdf/Commission-Report.pdf> [ICISS, Responsibility to Protect]; Jennifer M. Welsh, “The Responsibility to Protect: Securing the Individual in International Society” in Benjamin J. Goold & Liora Lazarus, eds., Security and Human Rights (Oxford: Hart, 2007) 363 at 364 [Welsh, “Responsibility to Protect”]; see also Susan C. Breau, “The Impact of the Responsibility to Protect on Peacekeeping” (2006) 11:3 J. Confi. & Sec. L. 429 (Oxford University Press) at 432 [Breau, “Peacekeeping”]. 10 See Joyner, supra note 2 at 704; see also Weiss, Ideas, supra note 1 at 68; Hoffman & Weiss, Sword & Salve, supra note 1 at 73 See ICISS, Responsibility to Protect, supra note 9 at 4; Weiss, Ideas, supra note I at 68; Hoffman & Weiss, Sword & Salve, supra note I at 72. 12 See Weiss, Ideas supra note I at 68; Hoffman & Weiss, Sword & Salve, supra note 1 at 72. 13 See Weiss, ibid. at 68; Hoffman & Weiss, Sword & Salve, supra note 1 at 72; ICISS, Responsibility to Protect, supra note 9 at 4. 14 See ICISS, ibid. at 4. 15 Cf ibid. at 33. 16 See Human Rights First, Stand In For Darfur: About the Crisis, online: Human Rights First <http://www.humanrightsfirst.org/internationaljustice/darfur/about/background.asp>; Max W. Matthews, “Tracking the Emergence of a New International Norm: The Responsibility to Protect and the Crisis in Darfur” (2008)31 B.C. Int’l & Comp. L. Rev. 137 (HeinOnhine) at 144. See Joyner, supra note 2 at 694-695.  2  18 The offenders are man, his Serb wife and two teenaged stepdaughters in Sarajevo. characterized as “half a dozen young thugs who were soccer fans” and initially tied the man to  the floor and berated him for having won a championship for a Croatian soccer team against a Serb team: They then proceeded to take their rifle butts and break both of his legs so that he would never play soccer again. While he was laying there on the floor with two broken legs, the thugs went and got his wife and two daughters. They told the wife in the presence of her husband and her two daughters that unless she did everything they wanted, they would rape the two girls. The mother, in order to protect her daughters, complied and submitted to degrading and humiliating sexual acts. Totally unexpectedly, she was turned to face her husband and daughters, and one of the men slit her throat. While she  was writhing on the floor dying, they raped the two girls in the presence of their stepfather.  19 Then, when they were finished, they slit the throats of the two girls.  After they had abused and killed his wife and stepdaughters, the thugs dumped the man on the 20 He street “as a living example of what could happen to others like himself and his family”. ’ 2 committed suicide the night after he had told the story to the prosecutor. The quantitative dimension of human suffering like this can only be indicated through numbers and statistics that demonstrate both the long history of the problem and its more recent aggravation. Already during the Cold War, civil wars or tyrarmical regimes in Nigeria, 22 By the end of the 1980s, it is Indonesia, Uganda or Cambodia claimed millions of victims. estimated that more than 150 million people had been killed, since the beginning of the twentieth 23 In the last decade of that century, century, through genocide and government mass murder. 24 and, today, at least one commentator violence within national borders has further proliferated, sees “intrastate conflict, civil war, and internal violence perpetrated on a massive scale” as a 25 The examples of such conflicts are indeed “quintessential problem” of the international system. numerous, and the statistics on the vicitims that they leave behind deeply shocking: in Somalia in 1993, scorched-earth tactics caused a famine that claimed the lives of between 200,000 and  See M. Cherif Bassiouni, “Justice and Peace: The Importance of Choosing Accountability Over Realpolitik” (2003)35 Case W. Res. J. Int’l L. 191 (HeinOnline) at 201; see also Joyner, supra note 2 at 694. 19 See Bassiouni, supra note 18 at 20 1-202; see also: Joyner, supra note 2 at 694-695. 20 See Bassiouni, ibid. at 202; see also Joyner, supra note 2 at 695. 21 See Bassiouni, ibid.; see also Joyner, supra note 2 at 695. 22 For a brief overview of these instances see Joyner, supra note 2 at 696. 23 See Rudolph J. Rummel, Death by Government (New Brunswick, N.J.: Transaction, 1994) at 1-3 (referring to the fifteen most murderous regimes only). 24 See e.g. Weiss, Ideas, supra note 1 at 61; ICISS, Responsibility to Protect, supra note 9 at 4. 25 See Gareth Evans, “From Humanitarian Intervention to the Responsibility to Protect” (2006) 24 Wis. Int’l L.J. 703 at 706 [Evans, “Responsibility to Protect”] (with specific reference to the I 990s). 18  3  26 during the Rwandan genocide in 1994, about 800,000 people, or a tenth of the 350,000 people; country’s population, were butchered within a few weeks, with 250,000-500,000 women being 27 in July 1995, 7,000 to 8,000 Muslim raped, and half of the population being forcibly displaced; Bosnia-Herzegovina; overall about men and boys were murdered in the town of Srebrenica in 28 committed; in Kosovo, the 250,000 people died in Bosnia, and 20,000-50,000 rapes were 29 ethnic cleansing of Kosovar Albanians led to the deaths of thousands and the displacement of ° in the Democratic Republic of Congo (DRC), “the deadliest [conflict] 3 about 700,000 persons; 31 conflict-related disease and malnutrition have on the planet since the Second World War”, caused an estimated 4 million deaths, “or the numerical equivalent of as many as five 33 in 32 and keep claiming the lives of some 30,000-40,000 people every month; Rwandas”, Darfur, “[alt least 200,000, but as many as 400,000 black Africans may have died; countless women left behind have been raped; and as many as 3 million people have been forcibly 34 displaced.” The scale and gravity of human suffering in ongoing intrastate conflicts is a challenge for the international community, its political decision-makers and legal framework. Then United Nations (UN) Secretary-General Kofi Annan directly confronted the UN General Assembly with this issue in early 2000, asking: “[...} how should we respond to a Rwanda, to a Srebrenica to —  gross and systematic violations of human rights that offend every precept of our common 3 humanity?” From the standpoint of international law, this query raises difficult issues. Traditionally, the most prominent question has been whether other states may decide to intervene in an internal conflict 26  See Weiss, Ideas, supra note I at 62. 27 at 62; see also Joyner, supra note 2 at 698. 1b1d. 28 See Joyner, ibid. at 699. 29 See Weiss, Ideas, supra note 1 at 62 ; see also Joyner, supra note 2 at 695. ° See Joyner, ibid. at 698. 31 See Weiss, Ideas, supra note 1 at 52. 32 Ibid. at 52-53. Ibid. at 52, 62. Ibid. at 54. See UN Secretary-General, We the peoples: the role ofthe United Nations in the twenty-first century, UN GAOR, 54th Sess., UN Doe. A154/2000 (2000) at para. 217 [emphasis omitted] [UN Secretary-General, Millennium Report]; UN Secretary-General, Report ofthe Secretary-General on the work ofthe Organization, UN GAOR, 55th Sess., Supp. No. 1, UN Doe. A155/1 (2000) at para. 37 [UN Secretary-General, Annual Report 2000]; see also Rebecca J. Hamilton, “The Responsibility to Protect: From Document to Doctrine But What of Implementation?” (2006) 19 Harv. Hum. Rts. J. 289 at 289 (Lexis); Carsten Stahn, “Responsibility To Protect: Political Rhetoric or Emerging Legal Norm?” (2007) 101 A.J.I.L. 99 at 102 (Lexis); Joyner, supra note 2 at 705; S. Neil MacFarlane, Carolin J. Thielking & Thomas G. Weiss, “The Responsibility to Protect: is anyone interested in humanitarian intervention?” (2004) 25:5 Third World Quarterly 977 at 978 (EBSCOhost); Welsh, “Responsibility to Protect”, supra note 9 at 365. —  4  to protect the imperiled population, that is, if they have a “right of humanitarian intervention”. 36 The concept of humanitarian intervention is difficult to define in general but usable terms. Adam Roberts has set out to formulate a definition that he considers consistent with the circumscriptions chosen by a number of different sources.  In his words, humanitarian  intervention is “coercive action by one or more states involving the use of armed force in another state without the consent of its authorities, and with the purpose of preventing widespread 38 suffering or death among its inhabitants.” While Roberts’ definition may provide both a good summary of earlier understandings and a useful general approximation to the issue still, further refinements may be needed with a view to the purpose of this thesis. Since December 2001, the debate of humanitarian intervention has been shaped by the framework and the language that the International Commission on Intervention and State Sovereignty (ICISS) established in its report on “The Responsibility to Protect”. As it is precisely this framework that will be the object of my analysis, due regard 39 shall be had to its scope in devising the working defmition that will be at the basis of the following chapters. Moreover, I chose to focus on particular aspects that appear to be especially relevant and controversial in the legal discourse. Thus, for instance, a broad variety of acts could constitute an intervention, defined as “the exercise of authority by one state within the ° In line with this definition, the ICISS 4 jurisdiction of another state [...] without its permission”. notably discusses a broad range of measures to be taken by foreign governments. Yet, I intend to restrict myself to a discussion of military action, as this form of intervention raises specific legal issues and has been a long-standing matter of international legal debate. Similarly, a very narrow understanding will be applied as to when interventionist action qualifies as “humanitarian”. In a broader sense, “humanitarian” may denote any conduct that is undertaken “for the stated purpose ’ While the ICISS refers to this notion at the outset, its 4 of protecting or assisting people at risk”. analysis later on suggests that military intervention may be justified in extreme cases only,  See Thomas M. Franck & Nigel S. Rodley, “After Bangladesh: The Law of Humanitarian Intervention by Military Force” (1973) 67:2 A.J.I.L. 275 at 305 (JSTOR); see also Joyner, supra note 2 at 697, n. 10; see also Welsh, “Responsibility to Protect”, supra note 9 at 365, n. 5 (“The task of defining humanitarian intervention is notoriously difficult.”) “ See Adam Roberts, “The So-Called ‘Right’ of Humanitarian Intervention” (2000) 3 Y.B. Int’l Human. L. 3 at 5 and n. 3 [Roberts, “Right’ of Humanitarian Intervention”]. 38 Ibid. at 5. See ICISS, Responsibility to Protect, supra note 9; see also Hamilton, supra note 35 at 289-290, 293. ° See Terry Nardin, “Introduction” in Terry Nardin & Melissa S. Williams, eds., Humanitarian Intervention (New York: New York University Press, 2006) 1 at 1. ‘‘ See ICISS, Responsibility to Protect, supra note 9 at para. 1.39. 36  5  42 Even notably in order to prevent or stop large-scale loss of life or large-scale ethnic cleansing. more specifically, I will focus on atrocities that are inflicted actively by humans on their peers, leaving for discussion in more specialized works situations of a large-scale loss of life that is the consequence of state neglect in, for example, the event of natural disasters. For the purposes of this work, an intervention will therefore be understood as humanitarian only if it serves the stated purpose of halting or averting large-scale killings or large-scale ethnic cleansing. In the light of these considerations, the terms “humanitarian intervention” or “intervention for human protection purposes” in this thesis will refer to military action that is taken by one or more states in another state, without the consent of its authorities, and with the stated purpose of halting or averting the commission of large-scale killings or large-scale ethnic cleansing against its population. In the specific case where such action is undertaken without prior approval from 43 the Security Council, it will be qualified as “unilateral” humanitarian intervention. When alluding to the concept of humanitarian intervention, Secretary-General Annan did not fail to indicate that this was “a sensitive issue, fraught with political difficulty and not susceptible to 44 Indeed, the use of military force for humanitarian protection purposes raises easy answers.” legal, political, moral and ethical questions and has accordingly been treated as a contentious 45 While humanitarian intervention has sparked controversies matter both of law and philosophy. for centuries, it has resurfaced in the legal discussion in the 1 970s and since become a 46 “centerpiece of international debate”. From the viewpoint of international law, military intervention for human protection exhibits a conflict of principles.  On the one hand, the international system of states has since the  conclusion of the Treaties of Westphalia in 1648 been based on the principle of the sovereign equality of all states. To protect the sovereignty of states, the corollary principle of non  Ibid atpara. 4.19. 42 u See Nicholas J. Wheeler & Justin Morris, “Justifving the Iraq War as a Humanitarian Intervention: The Cure is Worse than the Disease” in Ramesh Thakur & Waheguru Pal SIngh Sidhu, eds., The Iraq crisis and world order: Structural, institutional and normative challenges (Tokyo: United Nations University Press, 2006) 444 at 447; see also Weiss, Ideas, supra note 1 at 97, 128; note that the number of countries involved in such an intervention is without relevance for the definition as “unilateral”, see Weiss, Ideas, supra note 1 at 97. See UN Secretary-General, Millennium Report, supra note 35 at para. 219. See Fernando R. TesOn, Humanitarian Intervention: An Inquiry Into Law and Morality, 2nd ed. (Irvington-on Hudson, NY: Transnational, 1997) at 6 [TesOn, Humanitarian Intervention] (the 3d ed. of this work was not available to the author at the time of writing this thesis); Joyner, supra note 2 at 699-700. 46 See Evans, “Responsibility to Protect”, supra note 25 at 703; see also Joyner, supra note 2 at 704. See Tesón, Humanitarian Intervention, supra note 45 at 8. ‘  ‘  6  intervention in each other’s affairs was established,  48  which traditionally provided that  “governments can attempt to influence each other’s behaviour only through established 49 The control of its internal affairs, which were initially understood to diplomatic channels”. ° 5 include questions of human rights protection, lay with the sovereign state. When, by the end of the Second World War, the United Nations system was established, state sovereignty was one of its core principles alongside, however, the seemingly incompatible —  51 notion of human rights. Several provisions suggest that states should enjoy a status of sovereign equality that guarantees them the exclusive jurisdiction over their territory as well as  freedom from interference by external actors.  52  Humanitarian intervention appears to be  contradictory to this framework, which notably comprises the reference to the sovereign equality of the member states in Article 2(1) of the Charter of the United Nations, the prohibition of the use of force in Article 2(4), and the principle of non-intervention in Article 2(7). On the other hand, the Preamble and Article 1(3) of the UN Charter refer to the fundamental human rights and 54 freedoms of the individual. From the outset, the text of the UN Charter had thus created a system of principles and purposes that apparently clashed on the issue of humanitarian intervention. Subsequent developments, however, have profoundly affected the way in which these provisions of the UN Charter and their underlying concepts are understood. While the United Nations were initially seen as an organization that was aimed at protecting the territorial integrity, political independence and 55 its Secretary-General, more than fifty years later, asserted that it national sovereignty of states, 56 What the second half of the was ultimately aimed at the protection of individual human beings. twentieth century has witnessed is the expansion of the concept of security, to go beyond narrow  See Weiss, Ideas, supra note 1 at 14-18; see also Kwa Chong Guan, “Intervention and Non-Intervention: A Singapore Comment” in David Dickens & Guy Wilson-Roberts, eds., Non-Intervention and State Sovereignty in the Asia-PacfIc (Wellington, NZ: Centre for Strategic Studies, 2000) 50 at 50. See John Funston, “ASEAN and the Principles of Non-Intervention: Practice and Prospects” in David Dickens & Guy Wilson-Roberts, eds., Non-Intervention and State Sovereignty in the Asia-Pacjfic (Wellington, NZ: Centre for Strategic Studies, 2000) 9 at 9. 50 Cf Derek McDougall, “Humanitarian Intervention and Peacekeeping as Issues for Asia-Pacific Security” in James J. Hentz & Morten Bøás, eds., New and Critical Security and Regionalism: Beyond the Nation State (Hampshire: Ashgate, 2003) 33 at 35. 51 See Welsh, “Responsibility to Protect”, supra note 9 at 364; see e.g. Weiss, Ideas, supra note I at 18. 52 See Welsh, ibid. See Weiss, Ideas, supra note I at 22; Welsh, “Responsibility to Protect”, supra note 9 at 364. See also Welsh, ibid. See Joyner, supra note 2 at 703-704. 56 See Kofi Annan, “Two Concepts of Sovereignty” The Economist (18 September 1999) 49 (Lexis) [Annan, “Two Concepts of Sovereignty”]; see also Weiss, Ideas, supra note I at 97. 48  7  57 The understandings of “state security” and to include the emerging idea of “human security”. UN member states themselves have adopted declarations and conventions which indicate that human rights are no longer constrained by national borders and narrow understandings of state 58 For the former Canadian Minister of Foreign Affairs, Lloyd Axworthy, human sovereignty. 59 security has even become “a central organizing principle of international relations.” In accordance with this shift in the international security paradigm, the interpretation of central norms in the UN Charter has undergone major changes. Especially those provisions on the use of force that determine the legality of military action under the Charter may be understood differently today than at the time of their adoption. For example, Article 39 of the UN Charter, which provides the trigger for Chapter VII measures, including the authorized use of military force, had originally been interpreted to strictly require crises with transboundary implications, ° Similarly, the general 6 but was gradually expanded to apply to mere intrastate conflicts as well. prohibition on the use of force in Article 2(4) of the UN Charter has occasionally been softened, potentially against the intentions of its framers, to allow for military intervention that is aimed at upholding essential human rights.  61  Into this evolving international environment fell the  reconceptualization of humanitarian intervention as a “responsibility to protect” by the ICISS, which suggested a new solution for legally reconciling state sovereignty and human rights 62 concerns. The ICISS sought to facilitate consensus on the theoretical issues surrounding the concept, and to foster the delivery of effective protection to people at risk in practice. My objective in writing this thesis is to clarify the extent to which the framework of a responsibility to protect, as formulated by the ICISS, has by now become entrenched in international law. Specifically, I will address the status of five individual components of this framework: the responsibility of every state and its authorities to protect its population against large-scale killings and large-scale ethnic cleansing; the right of other states to employ military force collectively through the United See S. Neil MacFarlane & Yuen Foong K1iong, Human Security and the UN: A Critical History (Bloomington: Indiana University Press, 2006) at 1-2. 58 See Welsh, “Responsibility to Protect”, supra note 9 at 364. See Lloyd Axworthy, “Introduction” in Rob McRae & Don Hubert, eds., Human Security and the New Diplomacy: Protecting People, Promoting Peace (Montreal: McGill-Queen’s University Press, 2001) at 10; see also MacFarlane & Khong, supra note 57 at 2. 60 See Weiss, Ideas, supra note 1 at 47-48; see also Hamilton, supra note 35 at 289. 61 See Tesón, Humanitarian Intervention, supra note 45 at 133-140, 146-174; see generally Stahn, supra note 35 at 113; see also Alicia L. Bannon, “The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism” (2006) 115 Yale L.J. 1157 at 1161 and n. 17 (Lexis); Welsh, “Responsibility to Protect”, supra note 9 at 368-369. 62 See Joyner, supra note 2 at 696.  8  Nations to stop these atrocities where the host government fails to do so; the right of other states in these cases to intervene unilaterally, that is, without prior authorization by the Security Council; the responsibility of the international community to take military action for the protection of the imperiled people; and, fmally, the criteria for external military involvement in these crises. The relevance of such an inquiry into the legal normative framework is obvious at least from the standpoint of a constructivist theory, according to which rules, and legal norms in particular, 63 The have a practical influence on state behavior, as their violation attracts political costs. likelihood of humanitarian intervention in practice may therefore be contingent upon the rules 64 that international law stipulates.  The distinctive characteristic of my approach to this issue, as compared to the wealth of scholarly analyses that have already been undertaken on humanitarian intervention and the responsibility to protect in international law, is a combination of recent developments both in methodological terms and on the field of international politics. It will, firstly, take into account recent endorsements of the concept of a “responsibility to protect” in the declarations and practice of states and international organisations, for instance at the 2005 UN World Summit and in the peacekeeping practice of the Security Council in current conflicts, such as in Darfur or the DRC. The evaluation of these political developments will then be effectuated on the basis of a legal methodology that acknowledges weaknesses of the dominant positivist doctrine and draws upon the extensive work by contemporary legal scholars who have proposed distinctive approaches to the law of humanitarian intervention. The analysis of the current status of the ICISS framework in terms of international law will take five major steps: for an introduction to the subject-matter of this thesis, Chapter 2 will start with an overview of the concept of the responsibility to protect. In particular, I will outline the background for the establishment of the ICISS, the relevant components of its concluding report, the major conceptual contributions to the international debate, and the response that it has caused in international legal scholarship and the community of states.  63  See Christian Reus-Smit, “Introduction” in Christian Reus-Smit, ed., The Politics ofInternational Law (Cambridge: Cambridge University Press, 2004) 1 at 3; Christian Reus-Smit, “The Politics of International Law” in Christian Reus-Smit, ed., The Politics ofInternational Law (Cambridge: Cambridge University Press, 2004) 14 at 21-23; see also Alex J. Bellamy, “Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit” (2006) 20:2 Ethics and International Affairs 143 at 145 (EBSCOhost) [Bellamy, “Whither the Responsibility to Protect”]. See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 145.  9  In Chapter 3, I will devise a methodology for determining the existence and contents of international legal norms on humanitarian intervention and responsibilities to protect. This methodological groundwork will require a discussion of different doctrinal understandings of international law, its relationship with the concepts of ethics and morality, and the conditions under which legal norms on particular issues can be identified. An essential outcome of this elaboration will be the conclusion that moral and ethical considerations may play a pivotal role in assessing the contents of international law. In Chapter 4, therefore, I will develop an ethical theory on the rights and obligations of individual states and the international community for the protection of populations at risk. As this theory will only serve a subsidiary function within a primarily legal discussion, I will not engage in a debate of 6 Rather, for the purposes of this thesis, I the various conceptions of ethics or moral philosophy. will use the notions of ethics and morality interchangeably to mean a system of informal principles that define right and wrong, aim at lessening evil and harm, and set out rules to govern 66 the relations between persons accordingly. Having identified the method for determining the relevant legal rules, as well as the normative ethical theory that will provide guidance in this endeavor, I will then, in Chapter 5, apply these important background considerations to the empirical data that shapes the international law on human protection. This part will mainly analyze the UN Charter and the dealings of the states in order to answer the central question of what legal status the different elements of the ICISS report enjoy. Finally, in Chapter 6, I will summarize my legal conclusions and indicate their political ramifications as well as the need for further normative development on humanitarian intervention and the responsibility to protect.  Cf Paul Edwards, ed., The Encyclopedia of Philosophy (New York: Macmillan Company & The Free Press, 1967) vol.3 at 117. 66 Cf Robert Audi, Dictionaty ofPhilosophy, 2nd ed. (Cambridge: Cambridge University Press, 1999) at 284, 286, 586. 65  10  CHAPTER 2: ICISS AND R2P  —  FROM A “RIGHT OF HUMANITARIAN  INTERVENTION” TO A “RESPONSIBILITY TO PROTECT” Protect”. This In December 2001, the ICISS published its report entitled “The Responsibility to 67 report contains a comprehensive statement of the concept that is today generally referred to 68 In this chapter, I am going to highlight the political under the acronymic abbreviation “R2P”. background that led to the establishment of the commission, and the conceptual precursors on which it was able to draw; explain the ICISS’s major contributions to the scholarly discussion of humanitarian intervention, as well as its strategic concept for making an impact on the actual practice of human protection; outline the response that the report has caused both in academic and political circles; and finally indicate the current state of mind in academic commentary as to its status in international law. 2.1 Political Background and Conceptual History of R2P The stage for the conceptual evolution of R2P was set by the humanitarian crises in Rwanda in 1994 and in Kosovo in 1999, and the UN Security Council’s inadequate reaction to these 69 The two cases illustrated a lack of consensus on the legitimacy of humanitarian conflicts. 70 While the failure of the international community to take early and effective action intervention. against the genocide in Rwanda was heavily criticized, so was NATO’s military campaign for 71 What ultimately the protection of the Kosovar Albanians from ethnic cleansing five years later. links these two different cases was the Security Council’s failure to timely authorize the use of 72 robust military force for the protection of either civilian population. In the aftermath of these crises, the perception surfaced that a framework needed to be established to provide guidance for international responses to imminent or ongoing cases of genocide or ethnic cleansing. Secretary-General Kofi Annan repeatedly called upon the member states of the UN to “find common ground in upholding the principles of the Charter, and  See ICISS, Responsibility to Protect, supra note 9; see also Hamilton, supra note 35 at 289-290, 293. See Evans, “Responsibility to Protect”, supra note 25 at 713; Stahn, supra note 35 at 102. 69 See Thomas G. Weiss, “R2P After 9/11 and the World Summit” (2006-2007) 24 Wis. Int’l L.J. 741 at 756 (HeiiOnline) [Weiss, “R2P After 9/11”]; Weiss, Ideas, supra note I at 88. ° See Welsh, “Responsibility to Protect”, supra note 9 at 364. ‘ Ibid. 72 See Weiss, “R2P After 9/11”, supra note 59 at 756; Weiss, Ideas, supra note 1 at 88. See Matthews, supra note 16 at 139. 67  11  74 Annan’s objective was to overcome the stalemate acting in defence of our common humanity”. over the legitimacy of humanitarian intervention and to prevent future “Rwandas” and 75 “Kosovos”. Rwanda and Kosovo by now have become symbols for the challenges that the international community needs to confront when intrastate conflicts create large-scale threats to the civilian population. “No more Rwandas” demands that the world order be made a more secure place not 76 It appeals to humanitarian intervention in a prescriptive just for states, but also for individuals. sense, demanding that those who possess the needed capacities to protect populations at risk in 77 The experience from Kosovo, by contrast, seems to have foreign states take the required action. demonstrated a duality of simultaneous challenges: while, on the one hand, “genuine” intervention should be enabled by discouraging anti-interventionists from blocking collective action, humanitarian interventions must, on the other hand, be limited to these genuine cases, and 78 The need to lay out the conditions an abuse of the concept outside this scope be prevented. under which the international community should tolerate an intervention by willing states alludes 79 to the permissive dimension of norms on humanitarian intervention. Annan himself proposed to address these issues in the light of “two concepts of sovereignty”: state sovereignty and individual sovereignty. He observed that, while the first, traditional concept of state sovereignty is increasingly understood as serving the people, rather than the state as a legal entity, the “fundamental freedom of each individual [...J has been enhanced by a renewed 80 Critics complain that Annan’s remarks on and spreading consciousness of individual rights.” the “two concepts of sovereignty” ultimately constitute little more than a mere restatement of the 81 dilemma of humanitarian intervention.  See UN Secretary-General, Press Release, SG/SM/7136, “Secretary-General Presents His Annual Report to General Assembly” (20 September 1999) [UN Secretary-General, “Annual Report 1999”]; cf UN SecretaryGeneral, Millennium Report, supra note 35 at para. 217; see also ICISS, Responsibility to Protect, supra note 9 at 2; Matthews, supra note 16 at 140. See Welsh, “Responsibility to Protect”, supra note 9 at 365; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 143; Nicholas J. Wheeler, “A Victory for Common Humanity? The responsibility to protect after the 2005 World Summit” (Paper presented to the conference on “The UN at Sixty: Celebration of Wake?”, Faculty of Law, University of Toronto, 7 October 2005), United Nations Association UK <http://www.una-uk.org/humanrights/R2P%5B 1 %5D.pdf at 3-4. 76 See Welsh, “Responsibility to Protect”, supra note 9 at 365. See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 145. Jbid. at 168. 78 Cf ibid. Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 145. See Annan, “Two Concepts of Sovereignty”, supra note 56; see also Evans, “Responsibility to Protect”, supra note 25 at at 707. See Evans, ibid. at 707. —  12  Annan’s challenge, however, also prompted the response from the Canadian government which announced at the Millennium Summit in September 2000 to the General Assembly the 82 The establishment of the International Commission on Intervention and State Sovereignty. mandate of this independent commission was to address the whole range of legal, moral, operational and political questions involved in the debate of a right of humanitarian 83 to foster “a broader understanding of the problem of reconciling intervention for intervention; humanitarian protection purposes and sovereignty”; and to facilitate a “global political consensus on how to move from polemics  —  and often paralysis —towards action within the international  84 Essentially, it was thus entrusted with system, particularly through the United Nations”. 85 developing new common ground for humanitarian intervention. To facilitate such a global consensus on humanitarian intervention, the ICISS was comprised of 86 who were selected with the intention to fairly represent a wide twelve independent experts, range of viewpoints, from both developed and developing countries and a broad variety of geographical backgrounds.  87  Moreover, it held eleven regional roundtables and national  consultations around the globe to expose the views of government officials, civil society and 88 academics worldwide. The central theme of the ICISS report is “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe starvation  —  —  from mass murder and rape, from  but that when they are unwilling or unable to do so, that responsibility must be borne  89 This theme is specified with a view to the principle of by the broader community of states.” non-intervention in the basic principles set out in the synopsis of the report: A.  State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.  82  See ICISS, Responsibility to Protect, supra note 9 at vii; Welsh, “Responsibility to Protect”, supra note 9 at 365; see also Evans, “Responsibility to Protect”, supra note 25 at 707. 83 See ICISS, ibid. at vii 84 Ibid. at para. 1.7; see generally on the ICISS’s goals: Welsh, “Responsibility to Protect”, supra note 9 at 365. 85 See Weiss, Ideas, supra note 1 at 98. 86 See ICISS, Responsibility to Protect, supra note 9, App. A for the names and short biographies of the Commissioners; see also Jutta Brunnée & Stephen J. Toope, “Norms, Institutions and UN Reform: The Responsibility to Protect” (2006) 63:3 Behind the Headlines 1 at 11 (proquest); Weiss, ideas, supra note I at 99. 87 See ICISS, ibid. at para. 1.7; see also MacFarlane, Thielking & Weiss, supra note 35 at 981. 88 Ibid. at 83; see also Weiss, Ideas, supra note I at 99. 89 See ICISS, ibid. at viii.  13  B.  Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, ° 9 the principle of non-intervention yields to the international responsibility to protect.  ’ the R2P concept has not 9 Although the work of the ICISS has been considered “path-breaking”, 92 Rather, the way for its evolution had been prepared by the normative been without antecedents. 93 work of Francis M. Deng and Roberta Cohen, and the efforts of Secretary-General Kofi Arinan. While the first provided the intellectual stimulus for R2P, the latter facilitated its development politically. Addressing the issue of internally displaced persons, Deng and Cohen had broken “ new ground by formulating “sovereignty as responsibility”. This new approach heavily  influenced the ICISS’s work, and can thus be seen as a direct precursor to the R2P concept and the idea that the enforcement of human rights standards in a state may be an international 95. Kofi Annan then further challenged the traditional concept of state sovereignty responsibility in several speeches and his opinion piece on the “two concepts of sovereignty” in The Economist in September 1999.  96  Emphasizing “the fundamental freedom of each individual”, Annan  questioned the role of states as the sole source of legitimacy and authority in international 97 He relations, and supported the idea that sovereignty imposes responsibilities on states. subsequently reinforced this case for a shift of balance between state rights and human rights in 98 and at the Millennium Summit, his opening address to the General Assembly, that same week, 99 Rather than conceptual, the groundbreaking aspect of this proposal may the following year. have been the mere fact that the Secretary-General as “the world’s top international civil intervention.’ servant” launched an intergovernmental debate on humanitarian 00 While the ICISS was able to draw upon these precursors, its work can be considered as “pivotal” in that it essentially developed and comprehensively stated the idea of a “responsibility to 90 at ix. Ibid. See Weiss, Ideas, supra note 1 at 88. 1b1d at 88-98. 92 Ibid. at 88-89. See Francis M. Deng et. al., Sovereignty as Responsibility: Conflict Management in Africa (Washington D.C.: Brookings Institution, 1996); Roberta Cohen & Francis M. Deng, Masses in Flight: The Global Crisis ofInternal Displacement (Washington D.C.: Brookings Institution, 1998) at 7; Roberta Cohen & Francis M. Deng, “Introduction” in Roberta Cohen & Francis M. Deng, eds., The Forsaken People: Case Studies ofthe Internally Displaced (Washington D.C.: Brookings Institution, 1998) 1 at 6; see also Weiss, Ideas, supra note I at at 88-89 and generally at 89-95; Weiss, “R2P After 9/11”, supra note 59 at 744. See Evans, “Responsibility to Protect”, supra note 25 at 708; Weiss, Ideas, supra note 1 at 93, 95. 96 See Annan, “Two Concepts of Sovereignty”, supra note 56; see also Weiss, Ideas, supra note 1 at 96. Annan, ibid.; see also Weiss, Ideas, supra note 1 at 96. See UN Secretary-General, “Annual Report 1999”, supra note 74; see also Weiss, Ideas, supra note 1 at 97. See UN Secretary-General, Millennium Report, supra note 35 at paras. 215-219; see also Weiss, Ideas, supra note 1at97. ‘°° See Weiss, Ideas, supra note 1 at 96-98; cf also Evans, “Responsibility to Protect”, supra note 25 at 707. 91  14  1 The main contributions of the R2P report to the debate of humanitarian intervention protect”.’° were later summarized by Gareth Evans, one of the commission’s co-chairs, in four points: firstly and secondly, the ICISS insisted on new ways of talking about humanitarian intervention and sovereignty, understanding humanitarian intervention as a responsibility rather than a right, and sovereignty as a responsibility rather than control; thirdly, it suggested a “continuum of obligations”, ranging from the prevention of man-made crises, over various forms of reaction, to the reconstruction of conflict-tom societies after the crisis; and, fourthly and finally, the report 102 spelled out guidelines for appropriate military action as one form of reaction.  2.2 Main Intellectual Contributions of the R2P Report These main ideas of the R2P report aimed at influencing the international debate about humanitarian intervention in different ways. Firstly, by framing the issue of humanitarian intervention as an argument about a responsibility to protect people at risk rather than about a right to intervene, the commission “sought to turn the whole weary debate  [...J  on its head”, and to recast it from the perspective of those in need of  103 Skeptics regard this re-formulation of support rather than that of the prospective interveners. the debate as “a rhetorical  5 The commission, by or as “old wine in new bottles”.’°  contrast, hoped that changing the relevant perspective would help to break new ground for a more constructive  06  Supporters of this re-characterization of humanitarian intervention  moreover credit it for focussing international attention where it should fall, that is, on the rights of those individuals who are in dire need of protection, while the prospective interveners are 07  depicted as having responsibilities rather than  Thomas G. Weiss therefore praises the  ICISS report for “[prioritizing] the rights of those suffering [...r]ather than looking for a legalistic trigger to authorize states to intervene  08 •  The second and possibly most important concept spelled out in the report, the idea that sovereignty encompasses a responsibility to protect, is based on Deng’s conceptualization of See Breau, “Peacekeeping”, supra note 9 at 431; Stahn, supra note 35 at 102. See Evans, “Responsibility to Protect”, supra note 25 at 707-7 10; see generally also Stahn, supra note 35 at 103104 (emphasizing the first three aspects); Weiss, “R2P After 9/11”, supra note 59 at 743-744 (focussing on the first two contributions); Welsh, “Responsibility to Protect”, supra note 9 at 365-372. 103 See Evans, “Responsibility to Protect”, supra note 25 at 708. ‘° See Stahn, supra note 35 at 102. lbid. at 102,111-115. 5 ‘° 106 See Evans, “Responsibility to Protect”, supra note 25 at 708. 107 See Weiss, “R2P After 9/11”, supra note 59 at 744; Joyner, supra note 2 at 708. 108 See Weiss, “R2P After 9/11”, supra note 59 at 744 102  15  state sovereignty as  and has significant ramifications for the principle of non  intervention, as indicated in the afore-mentioned “Basic Principles” of the R2P report.”° By asserting that sovereignty implies a responsibility of the state to protect its people, the ICISS 11 At the same time, initially upholds the role of the respective government as the central actor.’ however, it treats the sovereignty of a state not as an absolute value, but as one that needs to be 112 It therefore makes the right to reconciled with the need to protect the human life of its citizens. 3 Where sovereignty contingent upon the state’s effective guaranteeing of basic human rights.” this minimum standard is not upheld, the state is considered as forfeiting any entitlement to 114 State claim sovereignty as a barrier for other states’ involvement to remedy the situation. 5 The broader community of sovereignty is thus trumped by the human rights of its population.” 7 116 but it even bears a responsibility to act.” states not only becomes empowered to intervene, The right of the state to freedom from outside intervention yields to the international community’s responsibility to protect people within this state.  118  In the conceptualization  suggested by the ICISS, the ideas of sovereignty and intervention are therefore not contradictory; rather they are complementary in that a state’s sovereignty is dependent on compliance with its primary responsibility to protect its population, and gives way to the residual responsibility .” 9 borne by the broader international community where it fails to fulfill this responsibility The third contribution of the ICIS S was to frame the international community’s residual responsibility to protect as a continuum of obligations: the responsibility to prevent, the ° It thus took a “holistic approach across 2 responsibility to react, and the responsibility to rebuild.’ 121 Their time” that covers the three different temporal phrases before, during and after the crisis. specific contents are summarized by the ICISS: A.  The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.  109  See Evans, “Responsibility to Protect”, supra note 25 at 708. See ICISS, Responsibility to Protect, supra note 9 at xi. See Joyner, supra note 2 at 708. 112 See Weiss, Ideas, supra note 1 at 98; Joyner, supra note 2 at 708. 113 See MacFarlane, Thielking & Weiss, supra note 35 at 978. 114 See Joyner, supra note 2 at 720; Hamilton, supra note 35 at 290. “ See Weiss, “R2P After 9/11”, supra note 59 at 743. 116 See Joyner, supra note 2 at 720. 117 See Welsh, “Responsibility to Protect”, supra note 9 at 366. 118 See ICISS, Responsibility to Protect, supra note 9 at xi; see also Bannon, supra note 61 at 1161. 119 See MacFarlane, Thielking & Weiss, supra note 35 at 978. 120 See ICISS, Responsibility to Protect, supra note 9 at xi; see also Evans, “Responsibility to Protect”, supra note 25 at 709. 121 See Weiss, ideas, supra note 1 at 10 1-102. 110  16  The responsibility to react: to respond to situations of compelling human need with  B.  appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. C.  The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the 22 harm the intervention was designed to halt or avert.’  The value of this approach lies in making clear that military intervention, and intervention in general, are not the only means of protecting populations at risk, but merely one aspect of a 23 In fact, the ICISS stresses, “the single most multidimensional spectrum of potential action.’ 124 Yet, the most critical important dimension of the responsibility to protect” is prevention.  12 aspect of the responsibility to protect remains the responsibility to react. In the context of the responsibility to react, the ICISS demands that “less intrusive and coercive 26 Noncoercive measures [be] considered before more coercive and intrusive ones are applied.” measures thus need to be fairly examined, though not necessarily attempted before recourse is 27 Within the category of coercive measures, there is then, again, a whole had to intervention.’ 28 Military intervention should only be considered as spectrum of escalating measures available.’ 129 a last resort Finally, military intervention as the “ultimative coercive measure” at the international community’s disposition in discharging its responsibility to react is subject to a set of specific 30 The elaboration of these guidelines is seen as the fourth major contribution of the principles.’ ’ The commission formulated six criteria that 3 ICIS S to the humanitarian intervention debate.’ military intervention needs to satisfy in order to be warranted: just cause, right intention, last 32 resort, proportional means, reasonable prospects and right authority.’  See ICISS, Responsibility to Protect, supra note 9 at xi [emphasis omitted] See Evans, “Responsibility to Protect”, supra note 25 at 709; Joyner, supra note 2 at 70 8-709. 124 See ICISS, Responsibility to Protect, supra note 9 at xi; see also Joyner, supra note 2 at 709; Weiss, Ideas, supra note 1 at 103. 125 See Joyner, supra note 2 at 711; see also Weiss, Ideas, supra note 1 at 102. 126 See ICISS, Responsibility to Protect, supra note 9 at xi; see also Weiss, Ideas, supra note I at 103 (who criticizes that “[t]hese priorities are highly situational”); Matthews, supra note 16 at 141. 127 See Bannon, supra note 61 at 1164. 128 See ICISS, Responsibility to Protect, supra note 9 at paras. 4.3-4.9; see also Matthews, supra note 16 at 141; Bannon, supra note 61 at 1165. 129 ICISS, ibid. at xii. 130 Ibid. at paras. 4.10-4.43; see also Matthews, supra note 16 at 141; see also the detailed overview by Joyner, supra note 2 at 710-716. 131 See Evans, “Responsibility to Protect”, supra note 25 at 710. 132 See ICISS, Responsibility to Protect, supra note 9 at xii-xiii, at para. 4.16 and, generally, at paras. 4.15-4.43. 122  123  17  The just cause requirement defines two broad categories of internal situations in which military intervention for humanitarian purposes can be justified: To be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: A.  large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or  B.  large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced 33 expulsion, acts of terror or rape.’  It is noteworthy that this threshold has been set deliberately high, permitting military 34 Not every threat to the right intervention only in certain extreme cases of human rights abuses.’ to life can satisfy the just cause threshold; the loss of life or ethnic cleasing must rather be of a 35 Moreover, many other forms of human rights deprivations conscience-shocking magnitude.’ that supporters of humanitarian intervention might have considered as legitimate cases for military action, such as political oppression, systematic racial discrimination or the overthrow of 136 On the other hand, the a democratically elected government, are excluded from the list.  qualifier “actual or apprehended” allows for intervention in anticipation of the two agreed just causes,  large-scale  killings and large-scale ethnic cleansing, enabling the international  community to take action  37 before the atrocities have actually begun.’  When a situation crosses the  just cause threshold, four other precautionary principles further  delineate the legitimate use of military force: A.  Right intention: The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.  B.  Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.  ‘ Ibid. at para. 4.19 ‘s” See Evans, “Responsibility to Protect”, supra note 25 at 710; see also Joyner, supra note 2 at 711. 135 See Weiss, Ideas, supra note I at 104. 136 See Joyner, supra note 2 at 711; see also Evans, “Responsibility to Protect”, supra note 25 at 710; Weiss, Ideas, supra note I at 105. See Joyner, ibid.; see also Weiss, Ideas, supra note I at 105 (arguing that the insertion of these words “opens the door fairly wide” so that “justifiable causes could include overthrow of a democracy or violations of human rights or, perhaps, even an environmental catastrophe like the one in Chernobyl if a state reacts slowly [...]“).  1$  C.  Proportional means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.  D.  Reasonable prospects: There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely 138 to be worse than the consequences of inaction.  These principles establish a framework that can be seen in the tradition of the Christian ‘just 139 and resembles the criteria that have been developed through other intellectual war” theory, In conjunction, the five principles ofjust cause, right intention, last resort, proportional means, and reasonable prospects were intended to enable the Security Council and the world at ’ 4 large to determine the legitimacy of military intervention for human protection purposes.’ It remains the critical question of right authority, that is, who has the power to authorize military s. The ICIS S’s approach to this problem was to state a 142 intervention under these circumstance 43 clear preference for intervention that is authorized by the Security Council under Chapter Vu:’ A.  There is  no better or more appropriate body than the United Nations Security Council to  authorize military intervention for human protection purposes. B.  [...]  Security Council authorization should in all cases be sought prior to any military intervention action being carried out.  144  The ICISS was well aware of the objections to relying on the Security Council as the right authority, such as its unrepresentative membership, its lack of political will to authorize intervention in the past, and the obstructive effect that the permanent members’ right to veto may have. 145 After all, the failure of the Security Council to react to the crises in Rwanda and Kosovo 46 Nevertheless, had been the trigger for the establishment of the commission in the first place.’ the ICISS considered the task being “not to find alternatives to the Security Council as a source  See ICISS, Responsibility to Protect, supra note 9 at xii [emphasis omitted]; see generally ibid. at paras. 4.324.43. 139 See Evans, “Responsibility to Protect”, supra note 25 at 710; see also Weiss, ideas, supra note 1 at 106, 111; Welsh, “Responsibility to Protect”, supra note 9 at 370. 140 See Weiss, Ideas, supra note 1 at 107 (with reference to works by a subcommittee of the International Law Association’s commission on human rights; the Swedish, Dutch, and Danish governments; the US administration’s Lawyers’ Committee for Human Rights; the International Council on Human Rights Policy for NGOs; and several independent scholars) 141 See Evans, “Responsibility to Protect”, supra note 25 at 710. 142 See ICISS, Responsibility to Protect, supra note 9 at para. 4.17 143 See Welsh, “Responsibility to Protect”, supra note 9 at 371. 144 See ICISS, Responsibility to Protect, supra note 9 at xii. Ibid. at paras. 1.1, 6.13, 6.20; see also Welsh, “Responsibility to Protect”, supra note 9 at 371. ‘Ibid. atparas. 1.6, 1.7. 138  19  47 It thus sent the political of authority, but to make the Security Council work better than it has”.’ message to the Security Council members that their failure to act could have “enduringly serious consequences for the stature and credibility of the UN itself’, if military intervention was .’ Moreover, it suggested 48 successfully undertaken by interested states without its authorization that the five permanent members agree to a “code of conduct’ for the use of the veto with respect to actions that are needed to stop or avert a significant humanitarian crisis”, in which they undertake that “in matters where [their] vital national interests were not involved, [they] would 49 not use [their] veto to obstruct what would otherwise be a majority resolution”.’ Despite this preference for Security Council authorization, the ICISS did not explicitly rule out that intervention could take place if the Security Council failed to take action, and indicated alternative procedures for these If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative options are: I.  consideration of the matter by the General Assembly in Emergency Special Session under the ‘Uniting for Peace’ procedure; and  II.  action within area and jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.  151  Ultimately, the ICISS thus avoided a clear pronouncement on whether or not unauthorized 152 While affirming the central role of the Security interventions can be legitimate or even legal. Council, it left open the possibility of the General Assembly, regional organizations or coalitions 53 of states stepping in to assume the international community’s responsibility to protect.’ 2.3 Strategies for an Impact on International Politics By discussing military intervention as a legitimate means of discharging a responsibility to react to humanitarian crises, while setting out, at the same time, the conditions that such operations 7 atpara. 6.14. Ibid. 4 ‘ “ Ibid. at para. 6.40; see also Evans, “Responsibility to Protect”, supra note 25 at 712. 49 at para. 6.21 (“constructive abstention”). ‘ Ibid. ‘° See Welsh, “Responsibility to Protect”, supra note 9 at 371. See ICISS, Responsibility to Protect, supra note 9 at xiii; see generally ICISS, Responsibility to Protect, supra note 9 at para. 6.28-6.35. 152 See Stahn, supra note 35 at 104. 153 Ibid.; Evans later placed a different emphasis, see Evans, “Responsibility to Protect”, supra note 25 at 711-712 (portraying the Security Council as the sole source of authority for legal intervention under the UN Charter, and stressing that the ICISS opted not to establish alternative legal bases).  20  have to meet, the ICISS addressed both the permissive and the prescriptive dimension of a norm of humanitarian intervention. The commissioners thus endeavored to define the scope for humanitarian arguments as a justification for the use of force, and to encourage, within these 54 limits, military intervention in practice.’ Academic commentators, such as namely Alex J. Bellamy and Jennifer M. Welsh, have inquired into the mechanisms through which the ICISS intended to ensure the practical impact of their normative framework. As these scholars have concluded, the central tool envisaged by the ICISS 55 On the one hand, the just cause thresholds and other precautionary is the use of language.’ principles are designed as a framework for prospective interveners to justify their decision, and 56 The criteria for military intervention should for others to critically appraise these arguments.’ 57 At the same thus, firstly, avert the abuse of humanitarian propositions for ulterior purposes.’ time, formulating the framework for military action in terms of a responsibility to react, rather than a right to intervene, the ICISS designed the just cause threshold as a measure for other UN members or the public to call for Security Council action in particular forms of humanitarian 58 The Security Council members, in turn, would be compelled to justify their resistance, crises.’ 59 They should consequently especially in the form of a veto, on the grounds of this framework.’ find it more difficult to avoid or even block action through the Security Council, which increases the likelihood of genuine collective intervention and reduces the risk of divisive unilateral intervention. Welsh summarizes this strategy by the ICISS as the establishment of a “culture 160 ofjustification”.  161  While it has been acknowledged that this “use of the enabling and constraining functions of argument  [...J was an innovative attempt to move humanitarian intervention beyond the divisive  and irresolvable struggle between defenders of human rights and advocates of sovereign 63 First, the ,’ analysts have also identified inherent problems with this strategy.’ 62 inviolability” criteria formulated by the ICISS are no molding tool in which the facts of real-life situations Cf Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 146-148 Ibid.; Welsh, “Responsibility to Protect”, supra note 9 at 37 1-372. 156 See Bellamy, ibid. at 147. ‘-“ Ibid. 58 at 146. ‘ Ibid. 59 at 146-147. ‘ Ibid. 160 Ibid. at 147-148. 161 See Welsh, “Responsibility to Protect”, supra note 9 at 371 (drawing upon the explanation of the concept by Dyzenhaus, see David Dyzenhaus, “Deference, Security and Human Rights” in Benjamin J. Goold & Liora Lazarus, eds., Security and Human Rights (Oxford: Hart, 2007) 125, especially at 137-155). 162 See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 148. 163 Ibid. at 148-151; Welsh, “Responsibility to Protect”, supra note 9 at 372. 155  21  could mechanically be fit. Rather, the specific conditions that the particular case must meet are indeterminate and require an evaluation of the factual evidence, a process that is always affected 64 Moreover, the R2P framework is designed to serve two purposes that by political influences.’ stand in an inherent tension: the promotion of intervention in “just” cases and the prevention of 65 The indeterminacy of the intervention where the requirements of a just “case” are not satisfied.’ criteria makes it possible for states to employ the R2P language in either direction when applying it to a specific case, that is, to argue, for instance, that a certain emergency meets the just cause requirement and thus demands intervention, or, on the contrary, to uphold that the threshold is 66 In addition, to approach the need for not met and intervention would therefore be abusive.’ humanitarian protection by requiring an explicit justification for inaction rests on the unproven presupposition that the force of domestic or international opinion will be sufficiently strong to 167 In fact, intervention politics since the early 1 990s have persuade governments to take action. 68 not provided much support for this assumption.’ With a view to facilitating an actual impact of the report in practice, the ICISS suggested several 69 the affirmation of the basic principles of follow-up processes within the framework of the UN:’ ° an agreement by the Security 7 R2P by the General Assembly in a draft declaratory resolution;’ 171 an Council members on the principles concerning military humanitarian intervention; agreement by the permanent five Security Council members “not to apply their veto, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise 72 and, finally, consideration by the Secretary-General of how to advance the majority support”;’ key elements of the report through his own action as well as that of the General Assembly and 73 As the later analysis of the legal status of the R2P framework will show, the Security Council.’ 74 these requests have been acted upon to different degrees only.’ See Bellamy, ibid. at 148-149. Ibid. at 148. “Ibid. at 148-149 (with reference to Security Council debates on Sudan). 167 See Welsh, “Responsibility to Protect”, supra note 9 at 372; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 150. 168 See Bellamy, ibid. at 150; see also Welsh, “Responsibility to Protect”, supra note 9 at 372. 169 See ICISS, Responsibility to Protect, supra note 9 at paras. 8.28-8.30; see also Welsh, “Responsibility to Protect”, supra note 9 at 373. ° See ICISS, Responsibility to Protect, supra note 9 at para. 8.28. 71 atpara. 8.29. ‘ Ibid. 172 Ibid. 173 Ibid. at para. 8.30. 174 See also Welsh, “Responsibility to Protect”, supra note 9 at 373 (suggesting that only the Secretary-General has shown a significant degree of activity). ‘ 165  22  2.4 Academic Reactions to the R2P Report 75 While many Amongst scholars, the ICISS report has caused an audible yet mixed response.’ 76 others have commentators have been sympathetic to the concept of a responsibility to protect,’ 177. reacted with indifference or even rejected it as either too revolutionary or too conservative On the positive end of the range of opinions, R2P has been praised for being a vital intellectual 178 and for describing the contribution to the contemporary debate of humanitarian intervention, 79 Moreover, R2P has been credited with the capacity to reduce, to “international state of mind”.’ ° and bridge the divise struggle between defenders 18 a certain extent, the polemics of the debate, ’ thus promoting the stalled debate about humanitarian 8 of state sovereignty and human rights,’ 82 Accordingly, supporters of intervention without abandoning the principle of state sovereignty.’ 83 with the potential to significantly the concept have heralded it as a “path-breaking work” 84 For the most fervent change this “notoriously difficult area of international law and politics”.’ enthusiasts, prominently represented by Secretary-General Kofi Annan, the R2P framework took away the last excuses for inaction and provides clearer guidance for action in cases where lives  ‘“See Hamilton, supra note 35 at 291; Matthews, supra note 16 at 146. See Weiss, “R2P After 9/11”, supra note 59 at 743. ‘“See Hamilton, supra note 35 at 291; see also the distinction between opponents, skeptics and optimists by MacFarlane, Thielking & Weiss, supra note 35 at 979-981. 178 See David M. Malone, edited by Richard B. Bilder, Book Review of Humanitarian Intervention: Ethical, Legal, and Political Dilemmas by J.L. Holzgrefe and RobertO. Keohane, eds., (2003) 97 A.J.I.L. 999 at 1001 (Lexis) (“By far the most influential intellectual contribution to contemporary debate over humanitarian intervention has been the incisive, highly substantive ICISS report [...J”); Joelle Tanguy, “Redefining Sovereignty and Intervention” (2003) 17:1 Ethics & International Affairs 141 at 141-142 (EBSCOhost) (“Steering clear of the paths that had paralyzed the debate on humanitarian intervention in the 1990s, the commission reframed its terms in an ingenious way”); ef. also generally Hamilton, supra note 35 at 292; Matthews, supra note 16 at 146 (both treating these statements as support for a position according to which R2P is “the most comprehensive approach to humanitarian intervention ever” proposed). “ See Anthony Lewis, “The challenge of global justice now” (2003) 132:1 Daedalus 5 at 8; see also generally Weiss, “R2P After 9/11”, supra note 59 at 743, MacFarlane, Thielking & Weiss, supra note 35 at 981. 180 See Edward Newman, “Humanitarian Intervention, Legality and Legitimacy” (2002) 6:4 Int’l J.H.R. 102 at 108 (EBSCOhost); see also Thomas G. Weiss, “To Intervene or Not To Intervene? A Contemporary Snapshot” (2002) 9:2 Canadian Foreign Policy 141 at 146; see generally MacFarlane, Thielking & Weiss, supra note 35 at 980. 181 See Evans, “Responsibility to Protect”, supra note 25 at 712-713 (citing UN Secretary-General Kofi Annan); but see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 148-151 (calling the use of argument an “innovative attempt” to move humanitarian intervention beyond this divide, but pointing to “at least three inherent problems with this approach”, ibid. at 148). 182 See Matthews, supra note 16 at 140. 183 See Weiss, Ideas, supra note 1 at 88; for Evans, who had co-chaired the ICISS, “[t]he evolution away from the discourse of humanitarian intervention, which had been so divisive, and toward the embrace of the new concept of the responsibility to protect has been a fascinating piece of intellectual history in its own right”, see “Responsibility to Protect”, supra note 25 at 704. 184 See Brunnée & Toope, supra note 86 at 3. 176  23  85 From the other end of the spectrum, even one of the harshest opponents of R2P, can be saved.’ 86 Mohammed Ayoob, admits that the concept has “considerable moral force”.’ Even some of the commentators who exhibit basic support for the concept, however, also indicate potential inadequacies of R2P. On a conceptual level, Welsh, for instance, identifies both philosophical and legal challenges to the attempt to shift the terms of the debate from rights 87 More pragmatically, Jutta Brunnée and Stephen J. Toope contend that “at to responsibilities.’ this stage it is not at all clear that the concept will fulfill its promise. It may be a mere rhetorical 88 flourish.” This assumption ultimately lies at the heart of many critiques that treat R2P with a mixture of 89 Their authors criticize the ICIS S report for a lack of innovation indifference and skepticism.’ and meaningful  contribution to  solving the fundamental problems  of humanitarian  190 For one commentator, R2P mainly revives criteria that had been formulated as intervention. ’ Others affirm 9 early as in the fifth century as a part of Saint Augustine’s “just war” doctrine.’ that the existing difficulties with the concept of humanitarian intervention will not be solved by 92 In particular, it is recognized simply changing the terminology to “responsibility to protect”.’ 193 Decisions that the political dynamics underlying decision-making in practice are still the same. 94 and largely depend on factors such as will remain to be driven by considerations of realpolitik,’ 185  See UN Secretary-General, Press Release SG/SM8 125, “Secretary-General Addresses Peace Academy Seminar on the Responsibility to Protect” (15 February 2002); see also generally MacFarlane, Thielking & Weiss, supra note 35 at 981. 186 See Mohammed Ayoob, “Humanitarian Intervention and State Sovereignty” (2002) 6:1 Int’l J.H.R. 81 at 84 (EBSCOhost); see also generally Weiss, “R2P After 9/11”, supra note 59 at 743. 187 See Welsh, “Responsibility to Protect”, supra note 9 at 363 and more generally 367-369, 372. 188 See Brunnëe & Toope, supra note 86 at 8. 189 For this categorization see e.g. MacFarlane, Thielking & Weiss, supra note 35 at 980; see also Hamilton, supra note 35 at 29 1-292. See for a general overview MacFarlane, Thielking & Weiss, supra note 35 at 980-981; Hamilton, supra note 35 at 292. 191 See Walter Dorn, at Pugwash workshop, see Erika Simpson, Report on meeting, online: Address (Canadian Pugwash Group Workshop, 23 March 2002), in Erika Simpson, The Responsibility to Protect: A Seminar on the Report ofthe International Commission on Intervention and State Sovereignty, online: University of Western Ontario <http://publish.uwo.caksimpsonldocuments/Simpson.2002-The%20responsibility%2Oto%2oprotect.pdf’ at 4; see generally MacFarlane, Thiellcing & Weiss, supra note 35 at 980; Hamilton, supra note 35 at 292; Evans concedes that the ICISS’s criteria for humanitarian intervention “have an explicit pedigree in Christian just war theory”, while emphasizing that “their themes resonate equally with other major world religions and intellectual traditions”, see “Responsibility to Protect”, supra note 25 at 710. 192 See Jennifer Welsh, Caroline Thielking & S. Neil MacFarlane, “The Responsibility to Protect: Assessing the report of the International Commission on Intervention and State Sovereignty” (2002) 57 Int’l J. 489 at 500 (HeinOnline); see also Newland, supra note 986 at 45; see generally MacFarlane, Thielking & Weiss, supra note 35 at 980; Hamilton, supra note 35 at 292; Matthews, supra note 16 at 146. 193 Weiss concedes this point against the backdrop of the aftermath of the terrorist attacks on September 11, 2001, and the 2005 World Summit, see Weiss, “R2P After 9/11”, supra note 59 at 758. 194 See generally Hamilton, supra note 35 at 291; Matthews, supra note 16 at 146.  24  95 Especially the ICISS ‘s preference for Security Council political will and operational capacity.’ authorized action has been criticized as disappointing and lagging behind more recent trends in 96 the international legal system) Finally, another group of commentators has criticized the ICISS report from a different angle, focussing not on a perceived lack of innovation but, right to the contrary, on the dangers 197 In their eyes, the report is “dangerously associated with innovative aspects of the concept. 98 These fears are not even alleviated by the ICISS ‘S disrespectful of current international law”.’ explicit affirmation that contemporary customary international law does not legalize unilateral 199 Rather, one scholar insists that, implicitly, “their pro-intervention humanitarian intervention. ° Others attack the ICISS for 20 analysis is based on the assumption that such a law does exist.” reaching conclusions that are biased in favor of the powerful, and particularly the Western, states, or at least present a potential for abuse.  201  For David Chandler, for instance, the  commission ultimately abets to “an elite group of Western powers sitting in judgment over their 202 This line of criticism has culminated in the increasingly prominent concern that own actions.” 203. For others, the concept might be used as a justification for neo-imperialist interventions finally, the ICISS has by and large endorsed a liberal internationalist framework that is not reflective of a universal consensus, and may therefore not be capable of significantly influencing 204 the international political practice on a global level.  ‘  See generally MacFarlane, Thielking & Weiss, supra note 35 at 980; Hamilton, supra note 35 at 292. See Jeremy I. Levitt, “The Responsibility to Protect: A Beaver Without A Dam?”, Book Review of The Responsibility to Protect by International Commission on Intervention and State Sovereignty, (2003) 25 Mich. J. Int’l L. 153 at 169-173, 176 (HeinOnline); cf also Hamilton, supra note 35 at 292; Matthews, supra note 16 at 146. 197 See generally Hamilton, supra note 35 at 292; Matthews, supra note 16 at 146. 198 See Mary O’Connell, “Taking Opinio Juris Seriously, A Classical Approach to International Law on the Use of Force”, in Customary International Law on the Use of Force, 9, 28-29 (cited in Hamilton, supra note 35 at 292, Matthews, supra note 16 at 146). ‘ See ICISS, Responsibility to Protect, supra note 9 at para. 2.24; see also David Vesel, “The Lonely Pragmatist: Humanitarian Intervention in an Imperfect World” (2003) 18 BYU 3. Pub. L. 1 at 18-19 (HeinOnline). 200 See Vesel, supra note 199 18-19; see generally Hamilton, supra note 35 at 292. 201 See generally Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 147. 202 See David Chandler, From Kosovo to Kabul and Beyond: Human Rights and International Intervention, new ed. (London: Pluto, 2006) at 135; see generally Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 147. 203 See generally Hamilton, supra note 35 at 292, 297; see also David Rieff, “A Nation of Pre-emptors?” The New York Times (15 January 2006), Section 6, Magazine, 11, online: New York Times <http://www.nytimes.com/2006/0 1/15/magazine/i 5wwln_lead.html?_r= 1&scp 1 &sq=Nation%2OoWo2OPreemptors&st=cse&oref=slogin>; see e.g. Venezuela, President Hugo Chavez, Speech given at 60th UN General Assembly (15 September 2005), online: Embassy of the Bolivarian Republic of Venezuela in the United States of America <http://www.embavenez-us.org/news.php?nid=1745>; see generally Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 147. 204 See David Ryan, Book Review of The Responsibility to Protect by International Commission on Intervention and State Sovereignty, (2002) 78:4 International Affairs 890 at 891 (Wiley InterScience); see generally MacFarlane, Thielking & Weiss, supra note 35 at 981. 196  25  2.5 The International Political Discourse on R2P In the community of states, the R2P report has, indeed, excited anything but a uniformly positive 205 While some states, notably Canada, Germany and the UK, at least initially welcomed reaction. 207 206 other states were more equivocal, or utterly rejected the concept. the initiative, The divide of opinions has become apparent both in the international community at large and 208 The permanent members of the Council reacted predominantly within the Security Council. with skepticism. 209 China had voiced its rejection of the concept of humanitarian intervention already during the consultation process of the ICISS, when the commission held its roundtable consultation in Beijing in June 200 1,210 and consistently appeared to disapprove of the outcome ’ Given this opposition at the outset, it has been regarded as a “significant 21 document as well. breakthrough for the growing acceptance of the norm” when China later endorsed the 212 Similarly, the US had, from the responsibility to protect in an official paper on UN reforms. inception, opposed the idea of criteria proposed by the ICISS, out of fear that it would be compelled to engage military forces in situations where its national interests were not at stake, while, conversely, being constrained to intervene in situations that it deemed appropriate cases 213 The US government’s initial reactions thus gave little reason to believe that it for action. 214 would subscribe to the substance of the report or even support its further development. Nevertheless, R2P has subsequently been acknowledged by a task force that had been Cf e.g. the overview by Bellamy, “Whither the Responsibility to Protect”, supra note 63 at, 151-152; MacFarlane, Thielking & Weiss, supra note 35 at 98 1-983. 206 See Bellamy, ibid. at 151 (with a list of other advocates: Argentina, Australia, Colombia, Croatia, Ireland, South Korea, New Zealand, Norway, Peru, Rwanda, Sweden, and Tanzania). 207 See e.g. Non-Aligned Movement, Chairman of the Coordinating Bureau, Statement at the informal meeting of the plenary of the General Assembly concerning the draft outcome document of the high-level plenary meeting of the General Assembly, delivered by H.E. Ambassador Radzi Rahman Chargé d’Affaires a.i. of the Permanent Mission of Malaysia to the United Nations New York (21 June 2005), online: United Nations Member States Portal <http://www.un.int/malaysia/NAM/nam210605.html> [NAM, Statement on the draft outcome document]; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 152; MacFarlane, Thielking & Weiss, supra note 35 at 982 (for China). 208 See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 15 1-152. 209 Ibid. at 151 (“with the partial exception of the U.K.”). 210 See International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Research, Bibliography, Background: Supplementary Volume to the Report ofthe International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), online: ICISS <http://www.iciss-ciise.gc.ca/consult-en.asp> at 392 [ICISS, Supplementary Volume]; see also MacFarlane, Thieficing & Weiss, supra note 35 at 982. 211 See MacFarlane, Thiellcing & Weiss, supra note 35 at 982; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 151; also note that the ICISS comprised no Chinese member that could have promoted a view from China in the drafting process; see MacFarlane, Thielking & Weiss, supra note 35 at 982. 212 See Weiss, Ideas, supra note 1 at 116. 213 See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 151. 214 See MacFarlane, Thielking & Weiss, supra note 35 at 983; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 151. 205  26  commissioned by the US Congress in December 2004.215 The Russian response to the ICISS 216 Indifferent or hostile reactions report, for comparison, has been described as “hikewarm”. emanating from the country have been ascribed to “the feeling that Moscow will not be in a position to influence significantly the humanitarian intervention agenda anyway”, or the concern that a pro-interventionist rule could be used to justify action over the humanitarian situation in 217 At least the rhetoric of the report has, however, found the support of the Russian Chechnya. government, coupled with a reiteration of the Security Council as the only legitimate body for 218 The most favorable, while not unqualified, responses to R2P in the authorizing intervention. Security Council came from France and the UK, who were still concerned, however, that the establishment of criteria for humanitarian intervention would not necessarily produce the 219 required political will. Outside the Security Council, the Non-Aligned Movement (NAM), consisting of currently 118 ° has 22 members and thus arguably constituting the most representative group aside from the UN noted “similarities between the new expression ‘responsibility to protect’ and ‘humanitarian 221 More equivocally, the Group of 77, when intervention”, a right which it explicitly rejects. jointly commenting on the Secretary-General’s report “In Larger Freedom”, did not address the 222 Still, a continued preoccupation with the principles of state issue of a responsibility to protect. 223 Finally, the majority of sovereignty and non-interference is visible particularly in East Asia.  See US, American Interests and UN Reform: Report ofthe Task Force on the United Nations (Washington, DC: United States Institute of Peace, 2005), online: United States Institute of Peace <http://www.usip.orunJreport/usip_un_report.pdf at V, 7, 28-32; Weiss, Ideas, supra note 1 at 116. 216 See MacFarlane, Thielking & Weiss, supra note 35 at 982. 217 Ibid. 218 See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 152; see also Yevgeny M. Primakov, “U.N. Process, Not Humanitarian Intervention, Is World’s Best Hope”, New Perspectives Quarterly (2 September 2004), online: New Perspectives Quarterly <http://www.digitalnpq.orglglobal_services/global%2oviewpoint/02-09O4primakov.html>. 219 See Jennifer M. Welsh, “Conclusion” in Jennifer M. Welsh, ed., Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2004) 176 at 204, n.4 [Welsh, “Conclusion”]; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 152. 220 See Non-Aligned Movement, Secretariat, NAM Background and General Information: Members ofNAM, online: Non-Aligned Movement <http://espana.cubanoal.cu/ingles/index.html>; Weiss, Ideas, supra note 1 at 121. 221 See NAM, Statement on the draft outcome document, supra note 207; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 152. 222 See Group of 77 and China, Statement on the Report of the Secretary-General entitled “In Larger Freedom: Towards Development, Security and Human Rights For All” (A/59/2005), delivered by H.E. Ambassador Stafford Neil, Permanent Representative of Jamaica to the United Nations and Chairman of the Group of 77 (6 April 2005), online: Group of 77 <http://www.g77.orglSpeeches/040605.htm>; see also Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 152 (suggesting that the G77 nevertheless called for a revision of the report with a view to a stronger emphasis on the principles of territorial integrity and sovereignty). 223 See MacFarlane, Thielking & Weiss, supra note 35 at 982-983. 215  27  African states refrained from making any individual comments on the responsibility to protect at 224 the 2005 World Summit. 225 Ultimately, it was A favorable response to the R2P came, by contrast, from the Americas. mainly states from Latin-America, the Western hemisphere, and sub-Saharan Africa on whose •226 support the proponents of R2P could count at the UN World Summit in 2005  2.6 Academic Commentary on the Status of R2P in Contemporary International Law As mixed as the reactions to the ICISS report may have been, this has not kept its language and framework from becoming firmly entrenched in the international discourse on humanitarian 227 Whether the responsibility to protect has also been endorsed by the international intervention. legal system has, however, been controversial among academic commentators. The ICISS itself explicitly denied in its report the existence of a sufficiently strong basis for a 228 The commissioners found that customary international norm on the responsibility to protect. 229 At “it would be quite premature to make any claim about the existence now of such a rule”. the same time, they suggested that the practice of states, regional organizations and the Security Council supported an “emerging guiding principle” of the responsibility to protect that may, if ° 23 further precedents are set, eventually cristallize into a norm of customary international law. This assessment of R2P as being an emerging international norm has later been called “rather ’ 3 heroic” by the commission’s co-chair, Gareth Evans?  See Bellamy, “Whither the Responsibility to Protect”, supra note 63 at 162 (noting that only South Africa and Tanzania publicly endorsed the ICISS proposal, whereas Algeria and Egypt directly opposed it). 225 See Fund For Peace, Regional Responses to Internal War: Perspectivesfrom the Americas on Military Intervention, vol. 3 (June 2002), online: Fund For Peace <http://www.fundforpeace.org/publications/reports/f1bramericas_conference.pdf at 4-5 [Fund For Peace, Americas]; MacFarlane, Thielldng & Weiss, supra note 35 at 982. 226 See Evans, “Responsibility to Protect”, supra note 25 at 715; cf also MacFarlane, Thielking & Weiss, supra note 35 at 981-982 (noting that, while “[g]eneral statements regarding the responses of individual regions are problematic [,...] Western, and many sub-Saharan African and Latin Ameriacan countries have largely welcomed the report”). 227 See Hamilton, supra note 35 at 293; Matthews, supra note 16 at 146-147; see also Philip Cunliffe, “Sovereignty and the politics of responsibility” in Christopher Bickerton, Philip Cunliffe & Alexander Gourevitch, eds., Politics Without Sovereignty: A Critique ofContemporary International Relations (Abingdon: University College London Press, 2007) 39 at 41 (opposing the R2P concept as such but admitting: “[The ICISS Report] has gained quick acceptance as a promising solution to the bitter ‘clash of rights’ of the 1990s. This clash pitted the rights of sovereign states against those claiming a ‘right to intervention’ to defend the human rights of individuals within states. The dust has settled on this battle, and the doctrine of sovereignty [as] responsibility securely holds the terrain.”) 228 See ICISS, Responsibility to Protect, supra note 9 at para. 2.24; see also Matthews, supra note 16 at 147. 229 See ICISS, ibid. at para. 6.17; see also Matthews, supra note 16 at 147. 230 See KISS, ibid. at paras. 2.24, 6.17; see also Matthews, supra note 16 at 147. 231 See Evans, “Responsibility to Protect”, supra note 25 at 713. 224  28  Since then, the concept has received varying degrees of affirmation from different actors, 232 Under the dominant positivist including the General Assembly and the Security Council. doctrine of international law, such precedents can support the emergence of a norm as customary 233 Accordingly, the number of academics who have commented favorably on international law. the status of R2P in international law has been growing, many of them subscribing now to the 234 This category, ICISS’s qualification of the principle as an emerging norm of international law. 235 and both more optimistic and pessimistic views however, still comprises many shades of gray, have been articulated. The one extreme position has been defended by David Aronofsky, who advocates the existence of a “legal duty and responsibility on all nations, as well as the Security Council, to protect [the 236 To victims of genocide, war crimes and crimes against humanity] and prevent such atrocities.” support this claim, Aronofsky points to several international conventions on human rights and humanitarian law setting out rights that would “[w]ithout effective military intervention  [...]  237 In his become meaningless”, as well as to General Assembly and Security Council resolutions. opinion, state sovereignty is no obstacle to humanitarian intervention, collective or unilateral, as “states effectively waive their national sovereignty when they commit, facilitate the commission 238 of, or fail to protect their populations against atrocities.” A number of other commentators do not go as far as to claim that international law currently imposes a legal responsibility to protect, or grants a right of unilateral humanitarian intervention, but rather characterize R2P as a concept in the process of emerging as a rule of customary  232  See UN General Assembly, 2005 World Summit Outcome, UN GAOR, 60th Sess., 8th Plen. Mtg., UN Doe. A/Res/60/l (16 September 2005) at paras. 138-139 [UN General Assembly, World Summit Outcome]; UN Security Council, Resolution 1674 (2006), UN SCOR, 61st Year, 5430th Mtg.,UN Doe. S/Res/1674 (28 April 2006); see also MacFarlane, Thielking & Weiss, supra note 35 at 989; Matthews, supra note 16 at 146-147. 233 See Part 3.5.2, above; see e.g. Matthews, supra note 16 at 147: “the General Assembly and Security Council resolutions have undoubtedly enhanced the force of R2P, moving the principle further along the continuum toward binding law.” 234 See Evans, “Responsibility to Protect”, supra note 25 at 713. p,jd. (“[a number of academic commentators and international lawyers] were prepared to accept, to a greater or 235 lesser extent, the [...J assessment of the responsibility to protect as an emerging international norm that might, in due course, become accepted as customary international law” [emphasis added]). 236 See David Aronofsky, “The International Legal Responsibility to Protect Against Genocide, War Crimes and Crimes Against Humanity: Why National Sovereignty Does Not Preclude Its Exercise” (2007) 13 ILSA J lnt’ I & Comp L. 3 17 at 317 (Lexis). 237 Ibid. at 317-318; but see Wheeler & Morris, supra note 43 at 446 (arguing against the recourse to force for the enforcement of humanitarian values protected by the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide: “it was clearly understood that [these human rights instruments] did not provide a basis for states to use force to uphold these standards in the event that particular governments failed to live up to them.”) 238 See Aronofsky, ibid.  29  239 At a closer reading of their assessments, these authors exhibit more or less international law. positive or negative standpoints on the concept and its previous or future development. Weiss and Evans, for instance, point to the speed of the development of the idea since its publication, and underline the force that the responsibility to protect already has, even though it may legally still only be a norm in emergence: Weiss asserts that “R2P  [...]  has broken speed records in the  ° moving faster than any other idea, except possibly the 24 international normative arena”, ’ He sees us at the “dawn of a new 24 prevention of genocide after the Second World War. 243 242 and qualifies humanitarian intervention at least as a “serious policy option”. normative era” Similarly, Evans points to “the extraordinary progress [that] has been made remarkably short period of time  []244  [...]  within a  and considers R2P as “a broadly accepted international  245 With regard to the prospects for the future crystallization of the concept as a legal norm”. norm, Rebecca J. Hamilton and Max W. Matthews paint a rather bright picture, suggesting that R2P has received “increasingly broad support  [...] that bodes well for the future emergence of an  246 and that it might achieve the status of binding international law “in the international norm”, 247 foreseeable future”. More skeptical prognoses may be exemplified by the assessment by Brunnée and Toope, who contend that still “[m]uch work remains to be done before [the responsibility to protect] can 248 Their argument rests on the plausibly be considered a binding norm of international law.” recognition that none of the documents in which the R2P concept has been included so far was of binding normative force, and that international practice contains “worrisome” examples, notably in Darfur, of states “evad[ing] effective action to stop what is at least ethnic cleansing and may  239  See e.g. Maya Brehm, “The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law” (2008) 12:3 J. Confi. & Sec. L. 359 at 387 (Oxford University Press); Joyner, supra note 2 at 704, 716; Hamilton, supra note 35 at 297; Weiss, “R2P After 9/11”, supra note 59 at 743; Evans, “Responsibility to Protect”, supra note 25 at 704; Brunnée & Toope, supra note 86 at 713; Breau, “Peacekeeping”, supra note 9 at 445-446; Matthews, supra note 16 at 147-148; Wheeler & Morris, supra note 43 at 458. 240 See Weiss, Ideas, supra note I at 116. 241 Ibid. at 5; Weiss, “R2P After 9/11”, supra note 59 at 741 242 See Weiss, “R2P After 9/11”, ibid. at 743 243 See Weiss, Ideas, supra note 1 at 52, 118 (note, however, that Weiss deplores the repeated failure to intervene in practice, the “dusk of the bullish days of humanitarian intervention”, see “R2P After 9/11”, supra note 59 at 743, which “mocks the value of the emerging R2P norm”, ibid. at 759. 244 See Evans, “Responsibility to Protect”, supra note 25 at 722. Ibid at 715. 246 See Hamilton, supra note 35 at 297. 247 See Matthews, supra note 16 at 137. 248 See Brunnée & Toope, supra note 86 at 13.  30  249 For Nicholas J. Wheeler and Justin Morris, even intervention authorized amount to genocide”. ° 25 by the Security Council is only an “embryonic norm” yet. Such skepticism about the future of R2P has been growing in the aftermath of the US-led invasion in Iraq in 2003. Several commentators have observed that this war has had a negative ’ Notably proponents of R2P, like Evans, 25 impact on the normative development of the concept. are concerned that the misuse of humanitarian arguments in Iraq has been a significant set-back for the principle, as it lost the momentum that it had been gaining in the international debate and 252 Weiss notes that “humanitarian intervention is was “once again struggling for its acceptance”. 253 with opposition to R2P coming not only from “the usual an even harder sell these days”, 254 At the suspects”, but also from states that earlier would have been sympathetic to the concept. same time, he argues, “the sloppy and disingenuous use of the ‘h word’ has played into the hands 255 Indeed, some of those Third World countries that wish to slow or reverse normative progress”. authors see a risk that, rather than the R2P concept moving further towards recognition as 256 According to this skeptical international law, the status that it has reached by now may erode. 257 point of view, the war in Iraq has “grievously threatened” R2P. At the far end of this range of academic opinions are those who either reject even the 258 or simply ignore the classification of R2P, or parts of it, as emerging customary law, 259 A very differentiated analysis is proposed by Carsten Stahn, who takes a closer look concept. at the alleged emergence of R2P from a positivist perspective, and argues that the concept in fact “encompasses a spectrum of different normative propositions that vary considerably in their  249  See Brunnée & Toope, supra note 86 at 13. See Wheeler & Morris, supra note 43 at 458. 251 See e.g. Wheeler & Morris, supra note 43 at 45 9-460 252 See Gareth Evans, “When is it Right to Fight?” (2004) 46:3 Survival 59 at 70-71 (Informaworid Journals); see also Wheeler & Morris, supra note 43 at 457; Welsh, “Responsibility to Protect”, supra note 9 at 374. 253 See Weiss, “R2P After 9/li”, supra note 59 at 753. 234 Ibid at 751. Ibid. at 758. 256 See Alex J. Bellamy, “Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq” (2005) 19:2 Ethics & International Affairs 31 at 32-33 (EBSCOhost) [Bellamy, “Trojan Horse”1; Wheeler & Morris, supra note 43 at 445; Weiss, “R2P After 9/il”, supra note 59 at 751. 257 See MacFarlane, Thielking & Weiss, supra note 35 at 978. 258 See Stahn, supra note 35, especially at 110 259 See Tarcisio Gazzini, The changing rules on the use offorce in international law (Manchester: Manchester University Press, 2005) at 174-177 (it should be noted that this work was published before the outcome document of the UN World Summit was released; while Gazzini uses at least one reference that, in turn, discusses R2P, he fails to mention this concept, but unambiguously states that “[tJhe actual evidence [...] that [a humanitarian intervention exception to the ban on the use of force] has emerged or is emerging is clearly insufficient”, ibid. at 175, and, in the context of suggestions by the British government, that “setting criteria for the exercise of such a right [to humanitarian intervention] may be a futile exercise from a strictly normative point of view”, ibid. at 178). 250  31  ° The characterization as an “emerging norm” is, in his 26 status and degree of legal support”. view, both overoptimistic and overpessimistic, since “some of the features of the concept are actually well embedded in contemporary international law, while others are so innovative that it ’ The basis for this contention is his 26 may be premature to speak of a crystallizing practice.” analysis that “[m]any of the elements of the concept of responsibility to protect are a broader ideological or legal tradition”, while others are “so innovative  [...] rooted in  [...} that it is difficult to  262 In conclusion, for Stahn, the term ascribe them to the existing acquis of international law.” “responsibility to protect” is “a political catchword rather than a legal norm”, comprising a 263 variety of propositions, the normative status of which remains uncertain.  2.7 Outlook In the rest of this thesis, I will endeavor to assess the current legal status of the different elements of the R2P concept. Unlike Stahn’ s, however, my analysis will not be based on a positivist understanding of international law from the outset. Rather, the next chapter will be a detailed discussion of different legal theories and their relevance for the law of humanitarian intervention. The conclusions of that chapter will provide the methodological foundation for the subsequent legal analysis.  260  See Stahn, supra note 35 at 100, 102. Ibid. at 110. 262 Ibid. at 115. 263 Ibid. at 120. 261  32  CHAPTER 3: LEGAL THEORY AND THE LAW OF HUMANITARIAN INTERVENTION Before the substantive question will be answered of what legal status the different components of the R2P framework enjoy at present, it is appropriate, at first, to elaborate on the method that 2M As Oppenheim explained, nothing less than a century ago, it is will be used for this inquiry. often difficult to expose the norms that are recognized by the international legal system as existing rules of law, and it is for this reason that “an inquiry into  [...] the method of the science  265 Many scholarly publications, including a large number of of international law is necessary.” commentaries on humanitarian intervention and the responsibility to protect, rely on certain presuppositions and conceptions that directly influence the outcome of their analyses, but fail to 266 explicitly state these foundations. In this chapter, I undertake to define the procedure through which I will determine the legal status of the different R2P elements in current international law. Importantly, as the rest of the chapter will show, this methodological decision is anything but a mere formality. On the one hand, with a view to the conclusions reached through the application of a certain method, it has already been noted that this outcome may largely be a function of the respective methodology. On the other hand, the methodology itself may be evidence of a broader concept of the nature of international law. Steven R. Ratner and Anne-Marie Slaughter point out that legal methods are often conceptually linked to theories of international law: broadly, a “legal method” can be understood as the way in which an abstract “conceptual apparatus or framework international law  —  —  a theory of  267. [is applied to] concrete problems faced in the international community”  For this reason, I will subsequently discuss conflicting legal theories, as they have an impact on the required legal method and can lead to diverging conclusions on the law of humanitarian intervention and the responsibility to protect. Today, the dominant theory of international law in general is legal positivism, and it appears that most scholars discussing R2P have subscribed to the assumptions of this concept, analyzing evidence of the positivist sources of treaties and custom, and avoiding explicit references to On the timeliness of methodological questions in international legal scholarship, see Steven R. Ratner & AnneMarie Slaughter, “Appraising the Methods of International Law: A Prospectus for Readers” in Steven R. Ratner & Anne-Marie Slaughter, eds., The Methods ofInternational Law (Buffalo: William S. Hem & Co., 2005) 1 at 1-2. 265 See L. Oppenheim, “The Science of International Law: Its Task And Method” (1908)2 A.J.I.L. 313 at 314-3 15 (HeinOnhine). 266 Cf Ratner & Slaughter, supra note 264 at 2. 267 Ibid at 3-4 (noting, however, that not every legal theory necessarily has a methodological counterpart and that, conversely, an author may choose to apply different legal theories in one legal method). 264  33  moral considerations. I will therefore begin with an outline of the basic suppositions of a positivist theory of international law and an indication of some of its flaws. Conscious of the shortcomings of legal positivism, I will then turn to the early-modern concept of international law as natural law and indicate some of the central reasons for its decline. Finally, I will consider two recent approaches, that are based on a positivist doctrine of international law but respond to its shortcomings by having recourse to concepts of ethics and morality. On the basis of this survey, I will then define the method through which I will subsequently assess the legal status of R2P. It will be argued that a strictly positivist approach in its traditional sense is inadequate to answer this question. To the necessary extent, I will therefore suggest and apply modifications to the positivist methodology. These amendments are closely informed by the works by Fernando R. Tesón and Brian D. Lepard, and require the elaboration of an ethical theory of humanitarian intervention and a responsibility for human protection, which will be the subject of the next chapter. 3.1 The Dominant Theory: Legal Positivism and the Law of Humanitarian Intervention Legal positivism emerged in the arena of international legal discourse during the eighteenth and 268 By the nineteenth and early twentieth century, it had replaced natural law nineteenth centuries. 269 Today, legal positivism is the theory as the leading doctrine in international legal scholarship. ° and “the lingua franca of most international lawyers, 27 dominant theory of international law, ’ As Tesón critically ascertains, “[pJositivism reigns in 27 especially in continental Europe”. 272 international law in a way in which it does not in other legal disciplines.” Given this dominance of a positivist understanding of international law, I will begin my elaboration of a theoretical and methodological framework for the legal analysis of R2P with an outline of this legal theory and its doctrine on the sources of international law. I will moreover indicate conceptual and operational difficulties that a strictly positivist approach to international law faces. This discussion will provide the background for the subsequent inquiry into  See Terry Nardin, “The Moral Basis of Humanitanan Intervention” (2002) 16:1 Ethics & International Affairs 57 at 63 (EBSCOhost) [Nardin, “Humanitarian Intervention”]. 269 See John H. Currie, Craig Forcese & Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007) at 11. 270 See Tesón, Humanitarian Intervention, supra note 45 at 314. 271 See Rather & Slaughter, supra note 264 at 15. 272 See Tesón, Humanitarian Intervention, supra note 45 at 314. 268  34  alternative approaches to international law in general and to the law of humanitarian intervention in particular. 3.1.1 Conceptual Basics ofLegal Positivism Legal positivists understand international law as a “positive science” that is based on “hard facts”. According to this understanding, legal propositions ought to be proven inductively on the indicators. While legal positivism appears in basis of objective standards and verifiable 273 different versions, its “purer forms” can be characterized by the “core supposition” that law is created only through the ‘laying down’ of legal rules by a sovereign entity, at a discrete point in history, and that these rules are effective, even if they are “unjust when measured against some rd.” 274 other, moral (or natural law) standa More specifically, three fundamental principles can be derived from this supposition: firstly, as a strictly positivist view accords the required sovereignty to lay down binding rules on the international level only to states, they are the sole source from which international law can emanate. International law is thus, in principle, created voluntarily by the states themselves 275 and based on their consent or agreement; no source other than the will of states can create 276 In this sense, the agreement between states becomes the international legal norms. 277 This doctrine, according to international law equivalent to legislation on the domestic level. which law is dependent on the consent of states, can be referred to as “voluntarism” or 8 sm”. Voluntarism may be seen as following directly from the conception of state “consensuali 27 9 Moreover, it has governments. sovereignty, and receives support from academic scholars and 27 found explicit approval in international jurisprudence, namely in the Lotus decision of the (PCIJ). As state consent was established to be the ° Permanent Court of International Justice 28  Law” See Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law”]. l “Internationa (1985) 178 Rec. des Cours 9 at 60-62 [Schachter, Natural 274 See Currie, Forcese & Oosterveld, supra note 269 at 11; see also Stephen Hall, “The Persistent Spectre: Press University (Oxford 272 at 269 E.J.I.L. (2001)12 Positivism” Legal of Limits and the Order Law, International Journals). ed., 275 See Currie, Forcese & Oosterveld, supra note 269 at 11-12; Roberto Ago, “Positivism” in Rudolf Bemhardt, at 1073. 1072 1997) Encyclopedia ofpublic international law, vol. 3 (Amsterdam: Elsevier Science, 276 See See Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Rec. des Cours 9 at 45, 46 (also noting that for certain instances of international lawcreation, particularly for customary law, “assent” or “non-dissent” would be more accurate terms than “consent”, ibid.); see also Currie, Forcese & Oosterveld, supra note 269 at 12. 277 See Nardin, “Humanitarian Intervention”, supra note 268 at 64. 278 See Schachter, “International Law”, supra note 273 at 32. 279 Ibid. at 32-33. 280 See Permanent Court of International Justice, The Case ofthe S.S. “Lotus” (France v. Turkey) (1927), P.C.I.J. (ser. A)No. 10, online: ICJ <http://www.icj-cij.org/pcij/ serie_AJA_10/3QLotusjrret.pdf’ at 18 [Lotus]  273  35  only formal source from which positive international law could emerge, positivism was ’ The principle that international law is entirely 28 practically reduced to mere state voluntarism. 282 entails consequences for the dependent upon the voluntary adherence of states to certain rules practice of determining its content. Based on their underlying theoretical foundation, positivists would have to thoroughly analyze the actual behavior of states rather than to engage in 283 “speculative inquiries into the nature ofjustice or teleology”. The second principle derived from the core concept of a pure form of positivism is that ethical 284 Moreover, considerations play no role in determining the content of international law.  according to the so-called separability thesis, law, or “law as it is”, is independent from morality, or “law as it ought to be”, in that legal norms do not have to coincide with moral norms or to be 285 The legitimacy of international legal norms that have been identified “just or morally good”. through an analysis of the behavior of states therefore cannot be challenged on the basis of non286 positivistic conceptions ofjustice. Finally, unless states voluntarily agree to international legal norms, they remain at liberty to 287 As the PCIJ stated in Lotus, “[r]estrictions conduct themselves in whatever way they please. upon the independence of states cannot  288 [...] be presumed.”  3.1.2 The Positivist Doctrine ofSources The concept that international law is dependent on the consent of the states applies both to the 289 Pursuant to the positivist international legal system as such and to its individual norms.  principles outlined above, specific norms obtain their binding force as international law not because of their content, but due to their enactment through the accepted procedure of state (“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will [...J.”) 281 See Ago, supra note 275 at 1073. 282 See Currie, Forcese & Oosterveld, supra note 269 at 12. 283 See Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law” (1999)40 Harv. Int’l L.J. 1 at 13 (Lexis). 284 See Joseph Raz, The concept ofa legal system, 2nd ed. (Oxford: Oxford University Press, 1980) at 214; see generally J.L. Holzgrefe, “The humanitarian intervention debate” in J.L. Holzgrefe and Robert 0. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 15 at 35; Rather & Slaughter, supra note 264 at 5. 285 See H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71:4 Harvard. L. Rev. 593, especially at 594, 606 (HeinOnhine); see also Holzgrefe, supra note 284 at 35. 286 Cf Currie, Forcese & Oosterveld, supra note 269 at 15. 287 See Rather & Slaughter, supra note 264 at 5. 288 See Lotus, supra note 280 at 18. 289 See Schachter, “International Law”, supra note 273 at 33; American Law Institute, Restatement ofthe Law, Third, Foreign Relations Law ofthe United States, vol. 1 (St. Paul, MN: American Law Institute, 1987) at 18 [Restatement (Third)].  36  consent. 290 The central requirement is that the will of the states has been manifested in ’ 29 observable “positive” facts. According to a widely accepted moderate form of positivism, such consent need not be declared 292 Rather, the positivist doctrine of sources recognizes different processes expressly in treaties. that reflect, though to varying degrees, the consent of the states to a particular norm and can thus 293 Article 38(1) of the Statute of the International contribute to the creation of international law.  294 is commonly regarded as Court of Justice, while phrased in terms of the function of the Court, 295 an authoritative statement of these sources of international law: The Court, whose function is to decide in accordance with international law such disputes as  are  submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.  This statement, however, should not be treated as a straightforward enumeration of the “sources” 296 Rather, the individual sources require further elaboration, which can be of international law. approached from a more conceptual and a more practical viewpoint. On a conceptual level, a distinction may be made between “formal” and “material” sources of 297 Formal sources are the “legal procedures and methods for the creation of international law. 298 Material sources, by rules of general application which are legally binding on the addressees”. contrast, “provide evidence of the existence of rules which, when proved, have the status of 290  Cf Holzgrefe, supra note 284 at 35-36. See Schachter, “International Law”, supra note 273 at 60. 292 See Currie, Forcese & Oosterveld, supra note 269 at 12. 293 See Henkin, supra note 276 at 47-51, 61-62 (elaborating on the differing degrees to which treaties, customary law and general principles are rooted in state consent); see also Schachter, “International Law”, supra note 273 at 60. 294 See Ian Brownhie, Principles ofPublic International Law, 6th ed. (Oxford: Oxford University Press, 2003) at 5 [Brownlie, Principles]. 295 See Restatement (Third), supra note 289, § 102, reporter’s note 1; see also Brownlie, Principles, supra note 294 at5. 296 See Brownlie, ibid. 297 Ibid. (but see also for doubts about the viability of this distinction in the context of international relations, ibid. at 3). 298 Ibid. at3. 291  37  299 In other terms, within the elements enumerated legally binding rules of general application.” in Article 3 8(1) of the Statute of the Court, the actual sources, as the ways in which rules or principles become law, need to be distinguished from mere evidence or opinion-evidence as the ° 30 means of proving that a rule has achieved the status of international law in one of these ways. In an attempt to identify formal sources on the international level, the positivist principle that rules of general application are dependent on the general consent of states can be regarded as an equivalent or at least as a substitute for the “constitutional machinery of law-making” that exists 301 Formal sources of international law are then notably on the domestic level of states. 302 international custom, Article 38(1)(b), and general principles of law, Article 38(1)(c).  International conventions, or treaties, Article 38(1 )(a), also constitute a practically important source that, however, primarily creates mutual obligations of the parties rather than rules of 303 Article 38(1 )(d), by referring to “judicial decisions and the teachings of general application. the most highly qualified publicists of the various nations, as subsidiary means for the 305 ”, by contrast, mentions two material sources. 304 determination ofrules oflaw  In a practical sense, treaties and custom are the two principal ways for the creation of 306 General principles, by contrast, play only the role of a secondary source of international law. 307 This disparity in their practical relevance is consistent with the hierarchical international law. relation between the different sources: while treaty law and customary international law enjoy 308 general principles are recognized as a the same authority as sources of international law, 309 They may merely serve as “supplementary rules of international law” secondary source only. s, namely to temporarily fill gaps in the international legal system “that 310 in special circumstance  299  Ibid. See Restatement (Third), supra note 289, § 102 reporters’ note 1, § 103 comment a; see also Henkin, supra note 276 at 46. o See Brownlie, Principles, supra note 294 at 3 (in the realm of international law, Brownlie criticizes the use of the term “formal source” as “awkward and misleading”, since it puts the reader “in mind of the constitutional machinery of law-making which exists within states” but not on the international level; consequently, he argues that “in a sense ‘formal sources’ do not exist in international law”, ibid.). 302 Ibid. at 5. 303 Ibid. 304 [emphasis added] 305 See Brownlie, Principles, supra note 294 at 5. 306 See Henkin, supra note 276 at 47; Restatement (Third), supra note 289 at 18; Antonio Cassese, International Law, 2nd ed. (Oxford: Oxford University Press, 2005) at 153 [Cassese, International Law]. 307 See Henkin, supra note 276 at 61. 308 Ibid. at 47; Restatement (Third), supra note 289, § 102 comment j; Cassese, International Law, supra note 306 at 154. 309 See Restatement (Third), ibid., § 102 comment 1, reporters’ note 7; see also Henkin, supra note 276 at 61. 310 Ibid., § 102 comment], § 102(4). 300  38  would, if not filled, greatly impede the utility of international law as a sensible dispute-resolution ’ 31 system”. The central element of the study of international law or an area thereof becomes, as Brownlie puts it, “the variety of material sources, the all-important evidences of the existence of consensus 312 Moral and ethical considerations, by among states concerning particular rules or practices.” contrast and in compliance with the positivist separability thesis, have to play no role in the 313 determination of international law. 3.1.3 Conceptual and OperationalDjfficulties in the Doctrine ofSources The positivist doctrine of legal sources confronts, however, various challenges. In part, these difficulties are of an operational nature and arise in the application of the doctrine to particular issues for international law, while other, conceptual-jurisprudential questions concern the 314 The number and gravity of concerns, moreover, coherence of the positivist theory as such. varies from source to source.  3.1.3.1 Treaties 315 can arise from any binding international Conventional law, i.e. law created in treaties, 316 The agreement itself serves, in principle, as the required agreement regardless of its form. 317 Rules on the creation, application and termination of verifiable indicator of state consent. international agreements have been codified in the 1969 Vienna Convention on the Law of 318 Treaties, which is itself an international treaty. 319 Yet two difficulties with the Treaty law generally raises only few jurisprudential problems. doctrine of conventional law should be noted at this point. Firstly, the determination of precise international rules in treaty law raises problems that may ultimately have the potential to undermine important foundations of legal positivism, namely the understanding of international  311  See Currie, Forcese & Oosterveld, supra note 269 at 150; see also Henkin, supra note 276 at 61; Restatement (Third), supra note 289, § 102 comment 1. 312 See Brownlie, Principles, supra note 294 at 4. 313 See Raz, supra note 284 at 214. 314 For the distinction between “operational” and “conceptual-jurisprudential” questions, cf Henkin, supra note 276 at 50 (in the context of customary international law). “ See Restatement (Third), supra note 289, at 18. 316 See Henkin, supra note 276 at 47. 317 See Schachter, “International Law”, supra note 273 at 62. 318 See Cassese, International Law, supra note 306 at 155; see also Restatement (Third), supra note 289, at 18. 319 See Henkin, supra note 276 at 47.  39  law as a positive science that rests on the observation of verifiable “hard facts”, and the rejection of ethical or moral considerations as relevant factors in this analysis. The theory of treaty interpretation is put forth in Articles 31 and 32 of the Vienna Convention on the Law of 321. ° which can be considered as codifying the customary rules of treaty interpretation 32 Treaties, In keeping with these provisions and the positivist approach to international law, evidence for specific norms of conventional law is in practice sought in the text of the agreement and possibly interpretation. The Vienna Convention demands that this approach be supplementary means of 322 323 Accordingly, it textual, that is, primarily concerned with the terms of the agreement itself. admits, for instance, the records of the treaty negotiations, the travaux préparatoires, only as a 324 As a part of this textual approach, however, the purpose of an supplementary means.  325 Yet, such interpretations may be difficult and make the agreement shall be taken into account. determination of the content of international treaty law less straightforward in practice than the doctrine may suggest.  326  The traditional positivist method with its rejection of ethical  327. In this sense, Tesón points out considerations can be inadequate for a purposive interpretation that “substantive moral assumptions” are required for the determination of the relevant purpose of any legal instrument, and particularly of the UN Charter with its several potentially conflicting purposes set out in Article 1  328  Moreover, a dilemma for the fundamental positivist principle of state consent is revealed by an inquiry into the underlying rationale for the binding nature of treaties. The binding force of treaties, including the Vienna Convention on the Law of Treaties, can ultimately only be explained by recourse to the customary principle that agreements must be observed (pacta sunt 329 To avoid circularity, this principle has, however, in turn been said to be rooted not servanda). ° that is, the very concept in opposition to which 33 in the consent of states, but in natural law,  See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, online: United Nations <http://untreaty.un.orglilc/texts/instruments/englishlconventions/1_1j 969.pdf’ [Vienna Convention]. 321 See TesOn, Humanitarian Intervention, supra note 45 at 149. 322 See Restatement (Third), supra note 289, § 103 comment a. 323 See Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Princ4ples in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 113-1 14. 324 See Art. 32 Vienna Convention; see also Lepard, supra note 323 at 113-114. 325 See Article 31(1) Vienna Convention. 326 See Schachter, “International Law”, supra note 273 at 62. 327 See TesOn, Humanitarian Intervention, supra note 45 at 315. 328 Ibid at 151, 167. 329 See Henkin, supra note 276 at 47; Restatement (Third), supra note 289 at 18. 330 See Henkin, ibid. °  40  legal positivism emerged, and which specifically did not ground international law in a consensual basis. 3.1.3.2 Customary International Law ’ The definition in 33 No universally agreed definition exists for the concept of customary law. Article 38(l)(b) of the Statute of the Court, which speaks of “international custom, as evidence of a general practice accepted as law”, is considered as most authoritative but not 332 In more detail, the Restatement of the Law, Third, Foreign Relations Law of uncontroversial. the United States, which is published by the American Law Institute and recognized as an 333 provides that “[c]ustomary international law results influential statement on international law, from a general and consistent practice of states followed by them from a sense of legal 334 Importantly, therefore, the legal term “custom” requires that a usage be regarded obligation.” 335 It must be expected that, in the case of a departure as an obligatory one by those who follow it. from this usage, “some form of sanction will probably, or at any rate ought to, fall on the 336 From these endeavors of a definition, two requirements for the existence of transgressor.” customary international law can be deduced: a “widespread and uniform state practice” and an “accompanying opinio juris, or a belief on the part of the states that their practice is mandatory 337 Methodologically, and in keeping with the understanding of international as a matter of law”. law as a positive science, it requires in theory the proof of legal propositions through a detailed 338 Yet, in Louis Henkin’ s examination of the practice of states and their related legal convictions. words, the notion of customary international law is even “more complex, more mysterious, more 339 The concept is fraught both with conceptual-jurisprudential and troublesome” than treaty law. ° 34 operational problems.  ‘  See Restatement (Third), supra note 289, § 102 reporters’ note 2. See Cassese, International Law, supra note 306 at 156. See Currie, Forcese & Oosterveld, supra note 269 at 133. See Restatement (Third), supra note 289, § 102(2) (while the reporters admit that no definition of customary law is universally agreed, they consider the essence of this definition as widely accepted, ibid., § 102 reporters’ note 2). See J.L. Brierly, The Law ofNations: An Introduction to the International Law ofPeace, 6th ed. by Sir Humphrey Waldock (Oxford: Clarendon Press, 1963) at 59; see also Currie, Forcese & Oosterveld, supra note 269 at 120. 336 See Brierly, supra note 335 at 59; see also Currie, Forcese & Oosterveld, supra note 269 at 120. See Currie, Forcese & Oosterveld, ibid. at 121. 338 See Schachter, “International Law”, supra note 273 at 61. See Henkin, supra note 276 at 47. Ibid. 332  41  3.1.3.2.1 Conceptual-Jurisprudential Problems While customary international law, like treaty law, is assumed to be rooted in state consent, its relationship with the underlying principle that international law is dependent on the will of states ’ Particular problems are created in the context of the so-called “persistent 34 is more complicated. 342 While objector” rule, which is basically designed to safeguard the state consent principle. 343 this rule states that a customary international law is, in principle, universally binding, customary norm has no binding effect on “a state that has actively and consistently denied the existence or applicability to it of [that rule] prior to and since [its] crystallization Accordingly, a state can “contract out of a custom” by providing clear evidence of its objection 345 Yet, limits on the states’ freedoms have during the process of the formation of that custom. recently been established by the emergence of the concept of peremptory norms onus cogens, which enshrine fundamental values and do not permit derogation through customary or treaty 346 Importantly, rules that qualify as jus cogens also exclude the norms of a lesser rank. 347 By limiting the applicability of the possibility of contracting out through persistent objection. persistent objector rule, the notion of jus cogens thus creates tensions with the consent 348 principle. Further serious conceptional questions are raised by the second element of international custom, the opinio juris requirement. Firstly, and fundamentally, some scholars contend that the formation of customary law is not dependent on the existence of a psychological element, or at least make it redundant in practice by inferring the existence of an opinio furls from the 349 Yet this general and consistent practice may be observation of a general state practice. ° or out of considerations of fairness or 35 followed simply as a matter of courtesy or grace,  341  Ibid. at 47,50. Cf ibid. at 50. See Restatement (Third), supra note 289, § 102 comment d. See Currie, Forcese & Oosterveld, supra note 269at 141; see also Henkin, supra note 276 at 50; Restatement (Third), supra note 289, § 102 comment d. See Brownlie, Principles, supra note 294 at 11. 346 See Cassese, International Law, supra note 306 at 155; see also Henkin, supra note 276 at 47; Restatement (Third), supra note 289, § 102 commentj. See Henkin, supra note 276 at 50. 348 Ibid. See Hans Kelsen, Principles ofInternational Law, 2nd ed. by Robert W. Tucker (New York: Holt, Rinehart and Winston, 1966) at 450-451; see generally Jack L. Goldsmith & Eric A. Posner, “A Theory of Customary International Law” (1999)66 U. Chicago L. Rev. 1113 at 1118 (Lexis); see also Currie, Forcese & Oosterveld, supra note 269 at 135. See Henkin, supra note 276 at 49; Currie, Forcese & Oosterveld, supra note 269 at 121. 342  42  ’ The mere fact that a certain course of conduct is generally observed by the states 35 morality. therefore need not imply that international law exists that requires or permits this form of behavior. Rather, this conduct must be motivated by a perception of a corresponding legal 352 Consequently, the psychological element of opinlo furls is a necessary ingredient obligation. 353 The same rationale, that a consistent behavioral pattern as such of customary international law. does not create law, also supports the requirement that opinio furls must be proven by 354 independent evidence going beyond the mere existence of a general state practice. Furthermore, while scholars and courts often simply speak of the opinio furls requirement as “a sense of legal obligation”, it seems questionable how this conceptualization can explain the creation of rules of customary law in the beginning. Notably, the abstract formulation does not explain where the sense of a legal obligation required for the emergence of a certain practice as 355 Lepard calls “the very notion of customary law created by law originally comes from. consistent practice and by a belief among states that the custom is already law  [...]  a paradox,  ‘for it proposes that a customary norm can come into existence (i.e. become authoritative) only 356 by virtue of the necessarily erroneous belief that it is already in existence (i.e. authoritative).” The proposition that a previously voluntary practice becomes legally required because the states 357 Jack L. Goldsmith and Eric A. Posner have feel that it is legally required seems circular. concluded that the idea of an opinio furls is unsuitable to convincingly explain the transformation of a usage into customary law, since it is nothing else than a conclusion about the 358 Similarly, the Restatement suggests that the defmition of current legal quality of that practice. customary international law may in fact be concerned with “a later stage in the history of international law when governments found practice and sense of obligation already in evidence, 359 The and accepted them without inquiring as to the original basis of that sense of obligation.” 351  See Brownlie, Principles, supra note 294 at 8. See ICJ, North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), [1969] I.C.J. Rep. 3, online: ICJ <http://www.icj-cij.orgldocketlfiles/52/5561 .pdP at 77 [North Sea Continental Shelf]; see also Currie, Forcese & Oosterveld, supra note 269 at 128-129. See Brownlie, Principles, supra note 294 at 8. See Goldsmith & Posner, supra note 349 at 1118; see also Currie, Forcese & Oosterveld, supra note 269 at 135. See Henkin, supra note 276 at 50. See Lepard, supra note 323 at 101. See Restatement (Third), supra note 289, § 102 reporters’ note 2 (“Most troublesome conceptually has been the circularity in the suggestion that law is built by practice based on a sense of legal obligation: how, it is asked, can there be a sense of legal obligation before the law from which the legal obligation derives has matured?”); Goldsmith and Posner regard the idea that “the legal obligation is created by a nation’s belief in the existence of the legal obligation” as “mysterious”, supra note 349 at 1118; see also Currie, Forcese & Oosterveld, supra note 269 at 135. 358 See Goldsmith & Posner, ibid.; see also Currie, Forcese & Oosterveld, supra note 269 at 135. See Restatement (Third), supra note 289, § 102 reporters’ note 2. 352  43  reporters propose that the sense of a legal obligation may originally have been based on the 360 In conclusion on this conceptual flaw of the concepts of natural law or common morality. customary law doctrine, it seems justified to agree with Currie that “the oft-repeated doctrinal position  —  that customary international law depends on state practice coupled with opinio juris  —  ’ Nevertheless, the essence of 36 oversimplifies the manner in which such law actually emerges.” 363 362 and by states. the concept and its definition are universally accepted both in doctrine 3.1.3.2.2 Operational Problems The application of the concept of international custom in practice also confronts operational problems that shed some doubt on the utility of the positivist doctrine of sources. It may often be difficult to decide whether the requirements of a sufficient state practice and opinio furls are 364 fulfilled. With regard to the first factor, doctrine demands that the existence of a widespread and uniform 365 What would be required is to “[tabulate] states [...j state practice is empirically measured. 366 Topics of debate according to whether they engage or acquiesce in a given practice or not.” remain, however, both the quality and the quantity of the empirical evidence required to prove a 367 Little agreement has been reached on the types of national sufficiently general state practice. 368 Moreover, difficulties arise in evaluating different actions that can be counted as state practice. forms of state practice where a state is inconsistent in its acts or statements, or where verbal 369 In practice, the use of pronouncements are not supported by the factual behavior of the state. the different sources by courts, academics and politicians may thus be criticized for being selective. 370 More generally, it may be charged that the doctrine often fails to reflect the ’ 37 empirical reality.  Thid. °3 361 See Currie, Forcese & Oosterveld, supra note 269 at 135-136. 362 See Henkin, supra note 276 at 50; Restatement (Third), supra note 289, § 102 reporters’ note 2. 363 See Currie, Forcese & Oosterveld, supra note 269 at 135. 364 See North Sea Continental ShelfCases (Germany v. Denmark; Germany v. Netherlands), [1969] I.C.J. Rep. 172, Tanaka 3., dissenting, online: International Court of Justice <http://www.icj-cij .org/docket/files/52/556 1 .pdf at 175 [North Sea Continental Shelf; Tanaka J., dissenting]; Currie, Forcese & Oosterveld, supra note 269 at 132. 365 See Currie, Forcese & Oosterveld, supra note 269 at 132. Ibid. 3 367 See generally ibid. at 132-134. 368 See Goldsmith & Posner, supra note 349 at 1117; see also Currie, Forcese & Oosterveld, supra note 269 at 134. 369 See Currie, Forcese & Oosterveld, ibid. at 133. 370 See Goldsmith & Posner, supra note 349 at 1117; see also Currie, Forcese & Oosterveld, supra note 269 at 134. See Currie, Forcese & Oosterveld, ibid. at 134.  44  In terms of the quantity of evidence needed to prove the emergence of a general practice of the 372 The International states, no precise formula for the required extent of state practice exists. 373 This Court of Justice (ICJ) demands that the practice be “extensive” and “virtually uniform”. 374 rather “substantial uniformity” is necessary formulation does not require absolute uniformity, and sufficient.  Still, the precise meaning of terms like “general” or “uniform” remains  376 In the practical application, the existence of substantial uniformity, for instance, is a unclear. matter of appreciation and often leaves the decision-maker considerable freedom in assessing the  377 specific case at hand. Moreover, it may be doubted that the doctrine adequately accounts for today’s geopolitical realities. Since “the heyday of customary international law”, within the space of a hundred years, the membership of the world community has grown dramatically from about 40 to around 200 states.  378  Sometimes it may even be impossible to obtain the “huge body of evidence  379 Ascertaining and tabulating the actual practice of all these states, as the doctrine required”. ’ Instead, 38 ° In practice, this task is rarely undertaken. 38 may suggest, is at least an “arduous task”. propositions of customary international norms are normally based on a highly selective survey of 382 only a few states, such as the major powers and specially interested nations. Similar operational difficulties are raised by the second element of the law-making process 383 As Judge Tanaka, dissenting in the North Sea through custom, the opinio furls requirement. Continental Shelf cases, pointed out, the psychological nature of opinio furls as an internal 384 In practice, the ICJ has motivation makes it particularly difficult to find the required evidence.  372 See Restatement (Third), supra note 289, § 102 comment b. ‘n See e.g. North Sea Continental Shelf: supra note 352 at para. 74. See ICJ, Miitaiy and Paramilitaty Activities in and against Nicaragua (Nicaragua v. United States ofAmerica), Merits, [1986] I.C.J. Rep. 14, online: ICJ <http://www.icj-cij.orgIdocketJfi1es/70/6503.pdf at para. 186 [Nicaragua]; Cassese, International Law, supra note 306 at 157; Brownlie, Principles, supra note 294 at 7. See Brownlie, ibid. 376 See Currie, Forcese & Oosterveld, supra note 269 at 134. r See Brownlie, Princ4ples, supra note 294 at 7. 378 See Cassese, International Law, supra note 306 at 165.  379 m1d. 380 See Currie, Forcese & Oosterveld, supra note 269 at 134. 381 Ibid. 382 See Goldsmith & Posner, supra note 349 at 1117. 383 See Henkin, supra note 276 at 49; see also Brownlie, Principles, supra note 294 at 8. 384 See North Sea Continental Shelf: Tanaka J., dissenting, supra note 364 at 176 (Judge Tanaka, in his dissenting opinion, concludes from this observation that “[t]here is no other way than to ascertain the existence of opinio juris from the fact of the external existence of a certain custom and its necessity felt in the international community, rather than to seek evidence as to the subjective motives for each example of state practice, which is something which is impossible of achievement (...]“, ibid.); see also Currie, Forcese & Oosterveld, supra note 269 at 132.  45  385 In many cases, the Court assumed the applied two different methods to approach this problem. existence of an opiniofuris when it had found sufficient evidence of a general practice, or when there appeared to be a consensus in literature or precedents for this presumption in previous 386 To infer the existence of opinio furls decisions of the Court or other international tribunals. simply from the observation of a general practice, however, makes the opinio furls requirement 387 Yet, as noted above, opinio furls is a necessary requirement for the establishment redundant. 388 More compatible with this proposition is the second, more of customary international law. exacting approach adopted by the Court in a significant minority of cases, in which it demanded more positive evidence for a recognition by the states that this practice was required by a legally 389 Which approach the Court chooses appears to be a discretionary matter and binding rule. 390 dependent upon how contentious the alleged rule of customary law is. As a result of these operational problems, a general definition of when a certain rule or principle ’ In practice, proponents of 39 becomes a norm of customary international law cannot be given. certain customary norms often refer to the recognition that this norm has found by scholars and international tribunals, instead of engaging in an actual empirical survey of the existence of the 392 In this way, the emergence of international custom is required state practice and opinio furis. pronouncements. shaped to a significant degree by scholarly and judicial 393 Ultimately, the openness of the doctrine of international custom for selective propositions of law undermines the claim of legal positivism as a science that is based exclusively on a descriptive, value-free survey of hard facts. Rather, the proposition of a certain rule of customary law reflects 394 In conclusion, and requires the selection and interpretion of precedents by the analyst. 395 therefore, a positivist analysis of customary law cannot escape value choices.  385  See Brownlie, Princzles, supra note 294 at 8. Ibid 387 See Goldsmith & Posner, supra note 349 at 1117-1118; see also Currie, Forcese & Oosterveld, supra note 269 at 135. 388 See Goldsmith & Posner, ibid. at 1118; see also Currie, Forcese & Oosterveld, supra note 269 at 135. 389 See e.g. North Sea Continental Shelf; supra note 352 at pam. 77; see generally Brownlie, Principles, supra note 294 at 8, 10. 390 See Brownlie, ibid. at 8-9. ‘ See e.g. Henkin, supra note 276 at 49. 392 See Currie, Forcese & Oosterveld, supra note 269 at 135. Ibid. at 136. See TesOn, Humanitarian Intervention, supra note 45 at 12, 14-15, 313. Ibid. at313; 11. 3 386  46  3.1.3.3 General Principles ofLaw The third accepted manifestation of international law, finally, are, in the language of Article 38(1 )(c) of the Statute of the Court, “the general principles of law recognized by civilized nations”. The precise meaning and scope of this concept has been controversial ever since the 396 According to the widely accepted contemporary understanding, drafting of the Statute. 397 They are “principles common to “general principles of law” are derived from domestic law. 398 To the extent that these rules apply to the the domestic law of developed legal systems”. 399 Norms of relations of states, they are used by way of analogy on the international level. international law are identified by selecting elements of the better developed domestic legal 400 Examples of systems, borrowing their legal reasoning and adapting it to the international level. norms that have been adapted from the domestic to the international level include especially ’ but also the principle of 40 procedural-jurisprudential rules like the res judicata principle, 403 402 and arguably the prohibition against torture. equity, Unlike the subject-matters of the aforementioned norms, humanitarian intervention and an international responsibility to protect are per definitionem issues that concern relations between states. It is therefore highly implausible that domestic legal systems are better developed and contain widespread evidence of norms on these issues. For this reason, the following legal analysis of the R2P framework will focus on the primary sources of treaties and international custom. Nevertheless, difficulties with the concept of “general principles of law” may briefly be indicated to highlight further inconsistencies in the positivist doctrine of sources. In theory, the elaboration of international norms through an analysis of domestic legal systems is compatible with the general positivist principle that international law flows from the will of the states.  404  Yet, in practice, the concept requires a methodology to demonstrate that alleged  principles find the required support in domestic law. Two approaches to this problem can be distinguished  in  academic  literature  and  in  jurisprudence,  “categoricism”  and  396  See Brownlie, Principles, supra note 294 at 16. See Currie, Forcese & Oosterveld, supra note 269 at 145. See Henkin, supra note 276 at 61. See Brownlie, Principles, supra note 294 at 16. 400 Ibid.. 401 See Henkin, supra note 276, note at 61. 402 See Brownlie, Principles, supra note 294 at 16. 403 See Restatement (Third), supra note 289, § 102 reporters’ note 7. 404 See Henkin, supra note 276 at 61.  47  sm”. The “categorist” school finds “general principles of law” in those principles 405 “comparativi of domestic law that seem “inherently good and necessary ingredients of any functioning legal 406 It confronts, however, the criticism that it leaves the determination of the principles system.” that demonstrate these qualities to decision-makers who may be biased by their background and 407 A comparative inclined to import significant parts of their own domestic legal systems. approach, by contrast, would basically demand that as many domestic legal systems as possible 408 Since such a survey would be analyzed for their endorsement of the principle in question. constitute a very cumbersome undertaking, an “intermediate comparativist approach” has been developed that builds upon the assembly of a “representative sample of the world’s legal 409 This approach, however, raises questions, for example, about the proper systems”. configuration of the systems constituting the world community, the selection of their representatives and the weight that should be attributed to systems comprising different numbers ° In practice, the comparative doctrine may thus equally be applied in a 41 of states and people. 411 and, indeed, tribunals have been found to show a considerable discretion in selective manner, 412 developing and refining general principles of law. In conclusion, the analysis of domestic legal systems may sometimes yield uncertain results and 413 In its practical application, the concept of “general leave room for ideological assumptions. principles of law” may therefore be less consistent with the state consent principle, and have a less solid foundation in hard facts, than the doctrine suggests. 3.2 The Traditional Antipole: Natural Law Theory Considering these weaknesses of the positivist doctrine of sources, both in terms of its conceptual foundation and its application to specific issues in practice, it is worthwhile inquiring into other theoretical approaches to international law and issues of human protection.  405  See Currie, Forcese & Oosterveld, supra note 269 at 149-150. ibid. at 150. 407 Ibid. at 150; see also Christopher A. Ford, “Judicial Discretion in International Jurisprudence: Article 38(1)(c) and ‘General Principles of Law” (1994) 5 Duke J. Comp. & Int’l L. 35 at 74 (Lexis). 408 See Currie, Forcese & Oosterveld, supra note 269 at 149. 409 Ibid.; see also Ford, supra note 407 at 68-69. 410 See Currie, Forcese & Oosterveld, ibid. 411 Cf ibid. at 147 (with a specific critique of Judge McNair’s demonstration in the South West Africa cases that a trust or trust-like concept existed in “[n]early every legal system”, see International Court of Justice, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] I.C.J. Rep. 146, McNair J., separate opinion, online: International Court of Justice <http://www.icj-cij.orgldocketlfiles/46/493 1 .pdf’ at 149). 412 See Brownlie, Principles, supra note 294 at 16. ibid. 406  48  Traditionally, the alternative to positivist thinking can be found in natural law doctrine, as a reaction to which legal positivism has emerged, and to which it stands in many respects in an 414 Until its decline in the antithetical position.  th 18  and  th 19  centuries, the concept of a “law of  nature” also constituted the framework for arguments that were made in favor of and against a 415 right or duty of humanitarian intervention. In the following, I will endeavor to briefly define the main characteristics of this concept. In addition, I will outline some of the major criticisms that have been raised against the notion of a law of nature, some of which will become relevant in the later appraisal of modern proposals to incorporate ethical considerations as part of a legal methodology. 3.2.1 History and Main Characteristics ofNatural Law Thinking In early modern jurisprudence, the law of humanitarian intervention and international law in 416 which can broadly be described as “a higher law general were treated as part of natural law, 417 The concept of “natural law” rests on the belief that the legal binding states and their rulers”. 418 The systems of all peoples are grounded in “certain fundamental, and shared, moral values”. 419 history of this school of thought can be traced back to ancient Greek and Roman philosophers. Natural law doctrine has been influential in both medieval and early modern Europe, and remained the dominant theory of international law at least down to the end of the eighteenth ° 42 century.  During this time, the concept of natural law took different forms. Natural law theory was heavily ’ Before the Reformation, the 42 influenced by religious doctrine well into the eighteenth century. 422 and equated with the “divine law law of nature was understood as God’s universal law,  424 423 As such, it had primacy over the laws made by human beings. administered by the church”. The fracture of Christianity into “then-mutually antagonistic denominations” during the 414  See Currie, Forcese & Oosterveld, supra note 269 at 11. See Nardin, “Humanitarian Intervention”, supra note 268 at 58-63. 416 See generally ibid. 417 See Currie, Forcese & Oosterveld, supra note 269 at 6. 418 Ibid. Ibid.; see also Arthur Nussbaum, A Concise History of the Law ofNations (New York: Macmillan, 1947) at 2021. 420 See Currie, Forcese & Oosterveld, ibid. 421 Ibid. at 6-7. Ibid. at 6. 423 See Heinhard Steiger, “From the International Law of Christianity to the International Law of the World Citizen: Reflections on the Formation of the Epochs of the History of International Law” (2001) 3 3. Hist. Int’l L. 180 at 184 (HeinOnline); see also Currie, Forcese & Oosterveld, supra note 269 at 6. 424 See Currie, Forcese & Oosterveld, ibid. 415  ‘“  49  Reformation, and the influence of Enlightenment philosophy weakened the religious foundations 425 of natural law and re-connected it to its ancient bases of human reason and rationality. In its modem form, the term “natural law” is circumscribed as “[t]he only law given to men by 426 The law of nature is said to be inherent in the world in that it is “founded on the nature”. 427 It is immutable, that is, it cannot be nature of things, and particularly on the nature of man.” 429 The law of 428 and its content has to be identified through reason. altered or derogated from, 430 nature can thus broadly be defined as “universally applicable rules derived by right reason.” Under a natural law concept, the task in determining norms of international law would therefore be to elaborate, through a process of reasoning, those principles of justice that can be held to be binding in a “state of nature”, that is, in a model society without any “positive” law created by 431 As a result, international obligations under a natural law theory are human institutions. 432 essentially based on conceptions ofjustice or morality. 3.2.2 Conceptual Problems and Decline 433 It One of the major disadvantages of this conception of international law is its lack of clarity. has recently been argued that “natural law leaves much to be desired as a theoretical basis for international law [as] it may be founded on a false premise: the presumption that human beings are rational and reasonable, and that the expression of this rationality will necessarily produce a 434 common understanding of natural law’s content.” The criticism that the law of nature may be incapable of establishing clear rules on controversial issues finds support notably in the treatment that humanitarian intervention has received from natural law theorists. Military intervention for human protection purposes has been discussed as  425  Ibid. See Christian Wolff, Jus Gentium Methodo Scien4/Ica Pertractatum, vol. 2, trans. by Joseph H. Drake (Oxford: Clarendon, 1934), marginal note to para 3. 427 See Emer de Vattel, The law ofnations, or, principles ofthe law ofnature, applied to the conduct and affairs of nations and sovereigns: From the French ofMonsieur de Vattel: A new edition, revised, corrected and enriched with many valuable notes (London: printed for G.G. and J. Robinson, Paternoster, 1797) (Eighteenth Century Collections Online) at lviii; see also Holzgrefe, supra note 284 at 19. 428 See de Vattel, supra note 427 at lviii; see also Wolff, supra note 426 at para 5; Holzgrefe, supra note 284 at 19. 429 See generally Anghie, supra note 283 at 11-12; Holzgrefe, supra note 284 at 19; Nardin, “Humanitarian Intervention”, supra note 268 at 58. 430 See Arthur Nussbaum, supra note 419 at 20; see also Currie, Forcese & Oosterveld, supra note 269 at 6. 431 See Anghie, supra note 283 at 11-12. 432 See Currie, Forcese & Oosterveld, supra note 269 at 7. Cf ibid. at 17. Ibid. at 9. 426  50  435 and the conclusions that natural law theorists an issue of natural law since the Middle Ages, reached have covered the entire range from a perfect duty of non-intervention to an imperfect 436 The Dutch jurist Hugo Grotius, for instance, found, at the duty of humanitarian intervention. beginning of the seventeenth century, a just cause for war in the “Right of Human Society”, in cases where Princes “exercise such Tyrannies over Subjects as no good Man living can approve 437 In the view of Grotius, humanitarian intervention was a discretionary right only and not a of”. 438 Samuel Pufendorf, by contrast, even considered the existence duty of the potential intervener. 439 During the eighteenth and nineteenth of an obligation to intervene on behalf of others. centuries, then, the view that intervention for humanitarian purposes could be justified as a ° Emmerich de Vattel, for instance, generally regarded 44 matter of natural law gradually eroded. the relations between a government and its citizens as an internal matter for which no accountability towards foreign powers exists, but allowed humanitarian intervention at least in the form of assistance to a people that has already taken up arms to revolt against the 441 John Stuart Mill took this idea that the victims of oppression must be willing to oppressor. fight for their freedom even one step farther and argued that humanitarian intervention should not be permitted, as only a people that has prevailed in the “arduous struggle” against the domestic oppressor and gained its freedom by its own efforts has proven fit for free 442 Finally, the Enlightenment philosopher Christian von Wolff submitted that, by institutions. nature, no nation or its ruler had a right to interfere in the government of another state, and therefore rejected the proposition that force may be used by foreign states to protect a people  See the comprehensive overview by Nardin, “Humanitarian Intervention”, supra note 268 at 58 ff. See Holzgrefe, supra note 284 at 25-28 (an “imperfect” duty of humanitarian intervention is one that it is not coupled with a corresponding “right of humanitarian rescue” that the victims of oppression could claim against foreign states, but that leaves these states with discretion in its discharge and does not impose any obligation to undertake specific action, see Holzgrefe, supra note 284 at 26-27; Holzgrefe further notes that even a perfect duty of intervention, although in fact not advocated by any natural law theorist, would in principle be “wholly compatible with the precepts of natural law”, ibid. at 27). See Hugo Grotius, Dejure belli acpacis: English, vol. 2 (London: printed for D. Brown, T. Ward, and W. Meares, 1715) (Eighteenth Century Collections Online) at 632; see generally book II, c. XXV, sect. VII. 438 See Grotius, supra note 437 at 633 (“I may make War upon a Man [...] if he disturbs and molests his own Country” [emphasis added]); see generally Grotius, supra note 437, book II, c. XXV, sect. VII; see also Holzgrefe, supra note 284 at 26. See Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, vol. 2, trans. by C.H. Oldfather & W.A. Oldfather (Oxford: Clarendon, 1934) at 1305-1307. 440 See Nardin, “Humanitarian Intervention”, supra note 268 at 63. 441 See de Vattel, supra note 427 at 155. 442 See Joim Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical, vol. 3 (London: Longmans, Green, Reader and Dyer, 1867) at 173-175. ‘  436  ‘  51  3 This opinion is representative of the current of natural law from oppression by their own ruler.” 444 thinking that dismisses a right, let alone a duty, of humanitarian intervention. The failure of natural law theories to produce clear results on the content of international law raises, however, questions about its suitability as a foundation for an effective international legal 445 In domestic societies that are built on a “vertical” system of governance with central order. law-makers, natural law thinking may serve an important function in informing the legal system 6 Constitutional documents of liberal democracies reflect the and legitimating the state itself.” notion of a “higher law” when they speak of “natural”, “inalienable” and “self-evident” “rights of man”. 447 These principles inform jurisprudence and statute law and are, in turn, authoritatively declared and put into operation by legislatures and courts.  448  Through this process of  449 codification, natural law principles obtain “positive legal force” and legitimacy. The international society, by contrast, is characterized by a “horizontal” legal system which lacks ° There is no hierarchical structure that could authoritatively establish the 45 a central law-maker. existence of given “higher principles” and define them in a way that they would constitute a ’ As the 45 working legal order specific enough to effectively regulate issues of everyday relations. Mexico-United States General Claims Commission phrased it, “[t]he law of nature may have been helpful, some three centuries ago, to build up a new law of nations, of inalienable rights of men and nature] have failed as  [...J but [the conception durable foundations of [...] international  law and [cannot] be used in the present day as substitutes for [...j positive international law, as recognized by nations and governments through their acts and statements  [.•J452  On the same account, the legitimacy of international norms based on notions of natural law can 453 Since, historically, natural law principles have not been endorsed by sources be questioned. with law-making authority, the body of international law would comprise merely “the scribbles of non-appointed, and unrepresentative, international jurists supposedly tapping into some higher ‘  See Wolff, supra note 426 at paras. 257-258. See Nardin, “Humanitarian Intervention”, supra note 268 at 63. Cf Currie, Forcese & Oosterveld, supra note 269 at 9. 446 Ibid. at 9-11. lbid. at 9-10 (with reference to the United States Declaration ofIndependence (1776) and the French Declaration 7 “ ofthe Rights ofMan and ofthe Citizen (1789)). 448 Ibid. at 10. “s Ibid. Ibid. at 11. 1bid.at9, 11. 451 452 See Mexico/U.S.A. (General Claims Commission), North American Dredging Company of Texas (USA v. Mexico) (1926), 4 R.I.A.A. 26 at 29-30, online: United Nations <http://untreaty.un.orglcodlriaa/cases/vol_IV/2635.pdf’. See Currie, Forcese & Oosterveld, supra note 269 at 17. ‘  52  454 These jurists may not only give conflicting accounts of the law of form of human reason”. 455 but have also been criticized for their “tendency to dogmatism, their emphasis on selfnature, 456 Moreover, the practical conclusions evident principles which admitted no critical challenge.” that have been drawn from natural law arguments, may sometimes raise questions about the 457 impartiality of the motives of the respective theorist. Partly as a result of these main disadvantages, the influence of natural law thinking in the 458 as the view emerged that international legal discourse abated by the nineteenth century, 459 Within this international law is “positive law” and properly based on the will of states. framework, natural law could only contribute to the creation of international law by phrasing ° 46 norms that states recognize or accept as rules of law. ”, the concept itself did not 46 “fashionable While the expression “natural law” may no longer be ’ 462 The idea of a higher body of principle, while “banished from the realm of entirely disappear. positive law” and “stripped of its  [...] legal connotations” continued to exist in the form of a  463 Common morality provides a non-legal standard by which everybody “common morality”. should live, and comprises principles that are “required by a conception of the person and what is 464 These principles can be discovered through reason and a “critical reflection owed to persons”. on laws and customs”, and their validity does not depend on their recognition in different 465 communities of tradition.  Jbid 4 M Ibid. 456 See TesOn, Humanitarian intervention, supra note 45 at 9. Nardin states, for instance, that Hugo Grotius’s conclusion that “the Dutch East India Company might justly 457 wage war on the Portuguese for seeking to prevent the Sultan of Johore from trading with the Dutch [...] may cause us to raise an eyebrow with respect to Grotius’s motives”; at the same time, he denies that the force of Grotius’s argument as such was weakened by this observation, see Nardin, “Humanitarian Intervention”, supra note 268 at 61. 458 See Currie, Forcese & Oosterveld, supra note 269 at 17. See Nardin, “Humanitarian Intervention”, supra note 268 at 63. 460 See Henkin, supra note 276 at 46. 461 See Currie, Forcese & Oosterveld, supra note 269 at 9. 462 See Nardin, “Humanitarian Intervention”, supra note 268 at 64; see also Currie, Forcese & Oosterveld, supra note 269 at 9. 463 See Nardin, ibid. mid Ibid.  53  3.3 Modern Alternatives: Approaches that Apply the Positivist Legal Sources and Ethical Considerations Whereas natural law-thinking under the banner of common morality had initially taken place 466 it has resurfaced in the legal discourse during the outside the realm of international law, 467 This has become most apparent in the emerging human rights law which twentieth century. 468 recognized the inalienability of certain fundamental rights also on an international level. Moreover, at least one recent approach, specifically to the issue of humanitarian intervention, draws upon moral analysis and modern “rights” philosophy as a necessary part of a legal 469 Such approaches that take moral or ethical considerations into account as part of methodology. the legal discourse may be another potential alternative to a traditional positivist understanding and methodology of international law. Specifically with a view to the area of humanitarian intervention, two scholars have recently elaborated legal methodologies that deviate from the positivist separability thesis by taking into account moral and ethical considerations: Fernando R. Tesón has proposed a legal methodology ° and devised a human-rights based 47 that “incorporate[s] political philosophy as an integral part”, theory of international law that suggests the legality of humanitarian intervention in certain ’ and, building upon this work, Brian D. Lepard, has formulated a “fresh legal approach 47 cases, [to humanitarian intervention] based on fundamental ethical principles in international law and 472 world religions”. By having recourse to ethical principles as a part of their legal methodologies, these academics 473 Both scholars respond to some of the shortcomings of the traditional positivist approach. suggest that strict legal positivism cannot satisfactorily answer the question of the status of 474 Specifically, it is recalled that the identification humanitarian intervention in international law. of norms both in conventional and in customary law requires an interpretation of legal 475 Moreover, it is submitted that legal questions are “inextricably interwoven with materials. important ethical problems”, as conflicts between established legal norms often reflect conflicts 466  Cf ibid. See Currie, Forcese & Oosterveld, supra note 269 at 17. Ibid. 469 See TesOn, Humanitarian Intervention, supra note 45 at 6-7, 9-10. Ibid. at 6. 471 See e.g. Tesón, Humanitarian Intervention, supra note 45 at 16, 79, 129, 313, and generally c.3, c. 6. 472 See Lepard, supra note 323. See TesOn, Humanitarian Intervention, supra note 45 at 6-15; Lepard, supra note 323 at 29-30. ‘ See Lepard, ibid. at 101-102; Tesón, Humanitarian Intervention, supra note 45 at 15. See TesOn, Humanitarian Intervention, supra note 45 at 15. “ ‘  54  between underlying ethical principles, and can therefore only be reconciled with a view to these 476 An ethical theory of international law shall therefore provide the necessary ethical principles. 477 and help to solve conflicts between guidance in difficult cases of interpreting the law, 478 competing norms. Rather than advocating a pure form of natural law theory, both Tesón and Lepard recognize the 479 Within this framework, however, they grant ethical or moral positivist doctrine of sources. considerations different roles that may be inconsistent with fundamental positivist principles, such as the separability thesis and the principle of state consent. In the following sections, I will discuss the two central propositions that, firstly, ethical considerations may provide guidance as a “background theory” in difficult cases of treaty and customary law analysis, and, secondly, that some ethical principles possess immediate legal force as “general principles of moral law”. As the subsequent discussion will show, these concepts pose challenges of different degrees to the traditional positivist approach to international law. 3.3 1 Background Theory Guiding Treaty Interpretation and Customary Law Analysis The first potential function for moral or ethical considerations in an international legal methodology is that of a “background theory” which provides guidance in cases of treaty interpretation and customary law analysis that do not yield unequivocal results.  480  Jurisprudentially, this proposition is based on the recognition that the content of international law ’ For TesOn, this need for value 48 cannot be determined without value choices being made. 482 In his view, judgments establishes the link between international law and moral philosophy. “the best philosophical position  [...]  is also the best interpretation of international legal  materials”. 483 As a result, moral philosophy, or an ethical theory of international relations,  See Lepard, supra note 323 at 29. See TesOn, Humanitarian intervention, supra note 45 at 1 17; Lepard, supra note 323 at 98. 478 See Lepard, ibid. at 98. See Tesón, Humanitarian intervention, supra note 45 at 146-174 (for an analysis of humanitarian intervention under the U.N. Charter), c.8, c.9 (for an analysis of unilateral and collective state practice); moreover, TesOn dedicates one chapter to the views of the ICJ expressed in Nicaragua, ibid. c. 10; Lepard, supra note 323 at 99-102, 105-111. 480 See Teson, ibid. at 117, 167 (aside from informing the interpretation of the international law, a second task that TesOn’s ethical theory of international law shall perform is “to explain in a consistent manner those norms of international law that are well settled”, ibid. at 117). 481 See Tesón, Humanitarian intervention, supra note 45 at 11, 313. 482 ibid. at 313. 483 ibid. at 15. 476  55  complements postive facts, such as treaty texts and diplomatic dealings, as the basis for 484 international legal propositions. In the context of treaty interpretation, this “background theory” can notably inform the 485 A more judgments that need to be made in identifying the relevant purposes of the agreement. general background role for an ethical theory is advocated by Lepard, who elaborates a detailed method of treaty interpretation that is shaped in various ways by fundamental ethical 486 Itself a product of ethical considerations, this methodology pays initially respect to principles. the existing norms of treaty interpretation, as established under customary law and codified in the Vienna Convention on the Law of Treaties, but contains some modifications as it accords particular weight to the shared understandings of the parties both at the time of the adoption of the treaty (original understandings) and at present (contemporary understandings), and to the presumed duty of individuals and governments “continually to strive toward progressive 487 realization of fundamental ethical principles”. The proposed methodology consists of up to four steps with different roles for ethical considerations: The first step consists in an ascertainment of the ordinary meaning of the provision in light of the object and purposes of the treaty, as mandated by the traditional rules of treaty interpretation set out in Article 31 of the Vienna Convention.  488  Subsequently,  supplementary means of interpretation, including but not limited to the records of the negotiations of the treaty, the travaux préparatoires, shall be used “to ascertain the parties’ true 489 Regardless shared understandings of their obligations” at the time of the adoption of the treaty. of whether or not the travaux préparatoires are ambiguous, it should be determined, in a third step, whether there are any new generally accepted understandings of the terms of the treaty that deviate from the ordinary meaning of the provision or from the original shared ° Specifically with regard to the UN Charter, the criterion to be met for “new 49 understandings. generally accepted understandings” is that they are “genuinely shared by all U.N. member states ’ As Lepard explains, “[sluch new 49 or at least a very large majority of member states.” understandings ought to ‘trump’ either an apparent ordinary meaning or original understandings  Ibid. at 6-7, 15. Ibid. at 167. 486 See Lepard, supra note 323 at 115-118. 487 Ibid. at 115 [emphasis omitted]. 488 Ibid. 489 Ibid. at 115, Fig. 2. Ibid. at 116. ‘ Ibid. 485  56  to the extent the new understandings are equally or more consistent with fundamental ethical 492 This element of Lepard’s methodology allows for a special dynamism in the principles.” interpretation of the UN Charter: while it would allow for changes in the meaning of the terms of the Charter as ascertained with a view to the ordinary meaning or the original understanding of the parties to the extent that the new genuinely shared understandings are more or at least equally supportive towards fundamental ethical principles, it would not recognize any political dynamic 493 In Lepard’s own words, the approach strengthens the stability of away from these principles. 494 Finally, if the aforementioned steps Charter interpretation and prevents “moral backsliding”. fail to produce a clear result, the Charter should be interpreted in a way that best helps to 495 Where ambiguities persist, Lepard visualizes these implement fundamental ethical principles. ethical principles “as a ‘magnet’ exerting a constant normative ‘pull’ on interpretations of the obligations of states under the Charter, but never forcing them to recognize and fulfill legal 496 In conclusion, Lepard notably obligations that they have clearly rejected for themselves.” suggests that treaties should be interpreted in a way as to promote ethical principles where no conflicting understandings of the parties can be ascertained, and not to allow the parties to detach 497 themselves from earlier, ethically preferable understandings of the treaty text. The proposition that the best interpretation of international legal materials is the one demanded by moral-political philosophy justifies a similar background role for ethical and moral 498 Moreover, considerations in making the necessary value choices in customary law analysis. fundamental ethical principles can be resorted to if the analysis of all available material sources produces no clear result as to whether a particular norm has achieved the status as customary law or is, so far, no more than a legal rule in emergence. In this case, “the consistency of a norm with fundamental ethical principles should be regarded as an important factor that can ‘tip the 499 balance’ in favor of recognition.”  492  Ibid. [emphasis in the original]. Ibid. Ibid. at 116,118. Ibid. at 116. 496 Ibid Ibid. See Tesón, Humanitarian Intervention, supra note 45 See Lepard, supra note 323 at 103.  at 15. 57  3.3.2 General Principles ofMoral Law A particularly noteworthy role for ethics as a part of a legal methodology can be found in Lepard’s proposition of “general principles of moral law”. This notion is defined as encompassing fundamental ethical principles that obtain the status of legally binding norms independently, irrespective of any explicit prior recognition in treaty law, customary law, or ° Lepard considers “general principles of moral law” as falling 50 national or international law. within the category of “general principles” in the meaning of Article 38(1 )(c) of the Statute of the Court. Importantly, Lepard emphasizes that the “critical distinction between law and morality” ought to be upheld, and therefore rejects the idea that all fundamental ethical principles constituted legally ’ Rather, he limits this category to principles that fulfill 50 binding general principles of moral law. certain criteria. General principles of moral law have to be not only fundamental, but even “essential” or at least “compelling”, and “the legal duties flowing from such principles ought to be narrowly tailored and circumscribed, appropriately specified, and made subject to certain 502 prescribed conditions”. Lepard distinguishes the three categories of “fundamental”, “compelling”, and “essential” ethical principles as a function of the degree to which these are logically and directly related to what he regards as the preeminent ethical principle of “unity in diversity”, that is, the principle that all human beings ought to be considered as “members of one human family”, who are entitled to 503 Fundamental ethical basic respect and dignity, and the diversity among whom is to be valued. principles, in Lepard’ s terminology, are “compelling” if they are “deserving of especially high weight in relation to other ethical principles because of their direct and immediate logical relationship to the preeminent principle of unity in diversity” and “essential” if they are “so closely related to the preeminent principle of unity in diversity that they deserve the highest 504 weight and therefore cannot normally be overridden by other ethical principles.” As for the further question, how the distinction between “fundamental”, “compelling”, and “essential” principles is to be effectuated in practice, Lepard explicitly refrains from proposing a 500  Ibid. at 106. Ibid. at 108. 502 Ibid at 106, 108. 503 Ibid. at 39-41, 45, 47; for a summary of Lepard’s methodology for the identification of this preeminent and other fundamental principles, see text accompanying notes 645-651. Ibid. at 40 [emphasis in the original] (on a further level of his methodological construct, Lepard grants fundamental ethical principles that fall within the category of “essential” principles not only the status of legally binding general principles of moral law, but even of peremptoryjus cogens norms, ibid. at 110). 501  58  systematic methodology, but limits himself to suggesting that certain principles are sufficiently 505 He suggests that support for the compelling to qualify as general principles of moral law. recognition of a certain fundamental ethical principle as a general principle of moral law can be found both in the weight that is apparently accorded to it by contemporary international law, and 06 by reference to revered moral texts.’ The particular significance of general principles of moral law lies in their characteristic that, while being rooted in ethics, they directly establish rules of international law. Within the humanitarian intervention context, examples of general principles of moral law comprise, for instance,  “a principle prohibiting deliberate violations by governments,  organizations, or other actors of essential human rights;  international  [...J a principle requiring that some legal  avenue for the use of military force to prevent or put an end to widespread and severe violations of essential human rights be available in the international system; and  [...]  a principle imposing  an obligation on governments, international organizations, and other actors to take some reasonable measures, either individually or collectively, within their abilities to prevent or stop 507 such violations.” 3.4 General Recognition of the Positivist Framework and Central Methodological Problems Confronted in the Analysis of R2P After having identified some weaknesses, conceptual and operational, of the dominant positivist theory of international law and its methodology, it has been shown that the antithetical natural law doctrine itself confronts challenges that have caused its decline. The afore-described approaches by TesOn and Lepard provide an interesting alternative, recognizing, on the one hand, the positivist framework of international law, while deviating from its foundational principles and allowing a role for ethical and moral considerations where they deem it an appropriate remedy for the shortcomings of positivism. Indeed, despite all justified skepticism of the positivist doctrine in its strict traditional form, there is at least one compelling reason to use the framework that it has established as a basis for the legal analysis of R2P: the international system rests on the recognition of a need for cooperation between the states. To broadly disregard the rules that have been created and accepted by the states under this system, which is permeated by and based on a positivist understanding of the 505  Ibid. at 109. Ibid. at 108-109; for Lepard’s use of revered moral texts see also text accompanying notes 647-648. 507 Ibid. at 106. 506  59  law, could be detrimental to the international community as such. An individualistic stipulation of an alternative set of rules could undermine the trust that the current system has gained and thus endanger the progress that has been made in terms of social cooperation on the international level so far. These considerations may themselves claim an ethical force. Hence, Lepard elaborates that “respect for the existing structure of international law” is itself a “fundamental 508 ethical principle pervading contemporary international law”. I will therefore adopt Lepard’s view that the positivist sources of treaties, international custom, and general principles, as they are acknowledged by the existing international law, should 509 At the same time, ethical principles shall be pursued to the extent provisionally be recognized. that this structure permits, and may, where they would be gravely violated by obedience to the 510 existing structure, allow for “measured disobedience” as a last resort. Choosing a basically positivist approach for the analysis of the R2P framework in international law means, however, that answers need to be formulated for some of the difficulties with legal positivism that have been identified before. With regard to the specific issues at hand, the following challenges will need to be confronted: in the context of treaty interpretation, the suggested ambiguities of a purposive interpretation of the UN Charter may arise; moreover, a methodology will need to be devised that takes due account of the way in which shared understandings of the UN Charter may have changed since its creation, over six decades ago. As a matter of customary law analysis, the circularity in the opinlo furls definition needs to be resolved as best as possible. In addition, it will be found that few instances of actual state action with a view to humanitarian intervention exist, while a host of state declarations and UN activities in this area may be observed. It is thus necessary to determine the material sources that may prove the existence of the required state practice and opinio furls. Furthermore, as this material evidence will need to be interpreted, and there is no mathematical formula to define when the existence of a norm of customary law has been proven, a convincing and consistent basis shall be devised to guide this interpretation and avoid the charge of selectivity. Finally, it is possible that no clear rule either in conventional or in customary law will be found in the traditional positivist sources; the question then arises, whether ethical principles, for instance in the form of general principles of moral law, may fill such gaps in the legal system. Solutions to  Ibid at 102; cf also 75-82. Ibid. at 102. ‘° Ibid.  60  these questions may require, however, adjustments to the positivist approach that part with some of its underlying principles. 3.5 Discussion: Proper Approach to the Law of Humanitarian Intervention and R2P The works by Tesón and Lepard provide valuable suggestions for a methodology that meets these challenges. In the following, I will discuss several components of an approach that employs moral and ethical considerations as a part of a legal theory. Notably, I will argue that the definition of the opinio furis requirement should be modified in order to avoid a paradox; that verbal statements by state representatives, individually or through organisations of states, such as the United Nations, may provide evidence of state practice and opinio furls; that recourse to ethical principles as a background theory is an appropriate way of solving the aforementioned ambiguities in treaty interpretation and customary law analysis; and, finally, that an ethical theory may provide principles that should complement the international legal system where the latter fails to provide rules on a relevant question. Particularly the last two suggestions may conflict with certain elementary norms of legal positivism, such as the principle of state consent and the separability thesis, and will therefore be defended with a view to these concepts. While it is not my intention and beyond the scope of this work to undermine the doctrine of legal positivism as such, this argumentation will entail an inquiry into the merits of the named positivist principles, as well as into some of the criticisms that had been brought against natural law theory. 3.5.1 Redefinition of the Opinio Juris Requirement  The first clarification to the traditional positivist doctrine of sources concerns the requirement of opinio furls, and addresses the circularity that is inherent in its common definition simply as “a ’ 51 sense of legal obligation”. It may be useful, at first, to return to the complete Latin denomination of the psychological 512 The recognition element of international custom, which reads “opinio furls sive necessitatis”. that a sense of a legal obligation is only one alternative, next to the sense of a necessity, provides an initial solution to the paradox that customary law is said to be created through a practice which states engage in because of a somehow pre-existing feeling that they are legally obligated to do so. As Antonio Cassese explains, a relevant practice need not be regarded as required by “  See text accompanying notes 3 55-363. See e.g. North Sea Continental ShelJ supra note 352 at para. 77; North Sea Continental Shelf Tanaka J., dissenting, supra note 364 at 175; e.g. Restatement (Third), supra note 289, § 102 comment c. 512  61  513 Rather, at an initial stage, state practice may be based on an opinio law from the outset. necessitatis, that is, on a feeling that it is necessary, for instance, for social, economic, or 514 Typically, indeed, a certain behavioral pattern will begin to evolve as a political reasons. 515 reaction not to perceived legal, but to actual economic, political, or military demands. This initial stage in the development of a norm of customary international law may, moreover, provide an avenue not only for economic or military, but also for ethical considerations. Thus, it appears justified to subscribe to Lepard’s broad redefinition of the opinio furls requirement, according to which it may be sufficient that states engage in a certain conduct because they “generally believe that it is or would be desirable now or in the near future to have an authoritative legal principle or norm prescribing, permitting, or prohibiting the conduct in 516 question.” 517 Once a practice has, based on Customary law then gradually evolves in a continuous process. the perception of a respective necessity, found sufficiently widespread acceptance, it may then be 518 Only at this later stage, the practice needs to be followed opinio considered as required by law. 519 At this point in time, the existence of a rule of juris, that is, with a sense of a legal obligation. 520 This understanding of the opinio furls sive necessitatis customary law can be ascertained. requirement avoids the critical circularity. Yet, it is not able, as of itself, to determine at what point in time the continuous process of law creation has been concluded and a norm of ’ There remain ambiguities and a need for interpretation, that will have 52 customary law evolved. to be met through the elaboration of a guiding “background theory”.  513  Cf Cassese, InternationalLa-w, supra note 306 at 157. Ibid. Ibid. 516 See Lepard, supra note 323 at 103 [emphasis modified from the original]. 517 See Cassese, International Law, supra note 306 at 157-158. 1 at 157. fl, Ibid. at 158. see also Restatement (Third), supra note 289, § 102 comment b. 521 See Cassese, International Law, supra note 306 at 157-158.; see also Restatement (Third), supra note 289, comment b. 514  § 102 62  3.5.2 Evidencefor Opinio Juris and State Practice Taking into account this modification, the requirement for a rule of customary international law will be a general practice of states that is accompanied by a corresponding opinio furls sive necessitatis. Aside from the quantitative problem of determining the required extent for a sufficiently widespread and uniform conduct by the states, both requirements, state practice as well as opinio furls, raise the question of what material evidence can be used to prove their existence. With regard to the first requirement, it has been accepted that the practice of states can take 522 and scholars have compiled entire lists of what consitutes proper evidence of numerous forms, 523 Still, little agreement seems to have been reached on the relevant types of such state practice. 525 Most 524 Ordinarily, reference is made to indications of governmental action. state conduct. widely accepted as instances of state practice are presumably policy statements, national correspondence. In addition, but more controversially, treaties, the legislation, and diplomatic 526 writings of jurists, and nonbinding statements and resolutions by multilateral bodies, such as the 527 UN General Assembly, are sometimes used to prove the existence of a general state practice. When the proof of a sufficiently widespread and uniform state practice is successful, it may be 528 As noted equally difficult to demonstrate that it has been accompanied by an opinio furls.  earlier, the International Court of Justice, at least in theory, requires that the opinio furls is demonstrated on the basis of evidence beyond the mere fact that a certain behavioral pattern  522  See Restatement (Third), supra note 289, § 102 reporters’ note 2. Ibid., § 102 comment b mentions as examples “diplomatic acts and instructions as well as public measures and other governmental acts and official statements of policy, whether they are unilateral or undertaken in cooperation with other states, for example in organizations such as the Organization for Economic Cooperation and Development (OECD). Inaction may constitute state practice, as when a state acquiesces in acts of another state that affect its legal rights”; Brownlie, Principles, supra note 294 at 6, generally mentions as “material sources of custom [...]: diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly.” 524 See Goldsmith & Posner, supra note 349 at 1117; see also Currie, Forcese & Oosterveld, supra note 269 at 134. 525 See Restatement (Third), supra note 289, § 103 comment a. 526 See Goldsmith & Posner, supra note 349 at 1117; see also Currie, Forcese & Oosterveld, supra note 269 at 134. 527 See Goldsmith & Posner, ibid.; see also Currie, Forcese & Oosterveld, supra note 269 at 134. (with a critique of these sources; Brownlie equally concludes his list of material sources of custom on the note that “[o]bviously the value of these sources varies and much depends on the circumstances”, see Principles, supra note 294 at 6); in terms of statements by the United Nations General Assembly, the actual sources of state practice are the statements and votes of the governments, see Restatement (Third), supra note 289, § 102 reporters’ note 2. 528 See Brownlie, Principles, supra note 294 at 8. 523  63  529 Such independent evidence for the sense of a legal obligation or of enjoys widespread support. a necessity may be most readily available where states explicitly comment on their motivation ° Statements 53 for acting in a certain way and on their sense of what international law demands. and votes of governments on General Assembly resolutions may express the states’ attitude ’ In addition, expressions of opinio furls may 53 towards what is legally permissible or required. 532 also be found in some of the other material sources that served as evidence of state practice. Based on his definition of opinio furis, which will be adopted in this thesis, Lepard for instance grants an important evidentiary status to multilateral treaties and declarations, to the extent that their language and other circumstances evidence the “states’ views on the desirability of 533 immediately recognizing certain universal legal obligations.” As the later analysis of legal materials will show, the protection of humans, if necessary with armed force, has been more often the subject of diplomatic correspondence, national policy statements, and the resolutions of UN bodies than of actual state action. Moreover, some multilateral treaties have been concluded that deal with this matter or at least touch upon it. Any of these sources may provide material evidence both of state practice and of opinio furls. The confirmation of a sufficiently uniform state practice may, however, be problematic where 534 The relevance of this states fail to comply in their actual dealings with a purported rule. problem for the R2P framework is apparent if one takes account of the magnitude of suffering worldwide that is stopped neither by the respective host government nor by the world community, namely in the Sudanese Darfur region. Generally, however, a prima fade deviation from a candidate norm need not automatically count as “negative state practice” that undermines the claim of this rule to customary legal status. Instead, such cases can even confirm an international custom, if the concerned states in fact demonstrate their commitment by explaining their deviation from the rule on the basis of the terms of this norm, for instance as a recognized 535 exception to the general rule.  See e.g. North Sea Continental Shelf; supra note 352 at paras. 74, 77. See Currie, Forcese & Oosterveld, supra note 269 at 130. ‘See Restatement (Third), supra note 289, § 102 reporters’ note 2; see also Nicaragua, supra note 374 at para. 188; see also Currie, Forcese & Oosterveld, supra note 269 at 130. 532 See Currie, Forcese & Oosterveld, ibid. at 133. See Lepard, supra note 323 at 103-104. See Currie, Forcese & Oosterveld, supra note 269 at 130. See Nicaragua, supra note 374 at para. 186; see also Cassese, International Law, supra note 306 at 157. 529  530  64  In terms of the quantity of evidence needed to prove the existence of a general state practice of 536 The International Court of Justice demands that the the states, no precise formula exists. 537 In ascertaining a sufficiently extensive state practice, the practice of practice be “extensive”. 538 “states whose interests are specially affected” may weigh more heavily than that of others. Along these lines, Henkin defines general state practice as “practice by a significant number of 539 representative States concerned with the subject.” Ultimately, however, no uniform, mathematical measure for the required number and repetition 540 In addition, at the particular time of evaluation, the of acts of state practice can be devised. practice under consideration may be passing through a “gray area” in which it is uncertain 541 Uncertainties like these reiterate the whether it has already achieved the status of a legal norm. need for the recognition of an ethical background theory. 3.5.3 Ethical Background Theoryfor Treaty and Customary LawAnalysis The analytical and argumentative work by Tesón and Lepard has indicated a number of ways in which moral and ethical considerations can provide an important background for both treaty interpretation and customary law analysis: by informing the identification of the relevant purposes of an agreement; by shaping the general approach to treaties, to the relevant understandings of their parties, and to possibly changed meanings of the terms of the agreement; by guiding the selection and appraisal of instances of state practice; by “tipping the balance” in favor of a particular decision in ambiguous cases of treaty or customary law analysis; and by reconciling conflicting principles. Recourse to ethical principles in this role of a background theory that provides guidance in difficult cases of the interpretation of treaties or international custom might coiiflict with the positivist principles of state consent and the separation of law and morality, and also raises concerns of subjective assertions of legal norms by the analyst. Yet, it will be argued that these concerns are not compelling, in particular since moral considerations, flmctioning as a  See Restatement (Third), supra note 289, § 102 comment b. See North Sea Continental Shelf supra note 352 at para. 74. Currie, Forcese & Oosterveld draw this conclusion from the language used by the ICJ hi North Sea Continental Shelf; supra note 269 at 126. See Henkin at 50; see also Restatement (Third), supra note 289, § 102 comment b (“[the practice] should reflect wide acceptance among the states particularly involved in the relevant activity.”) 540 See North Sea Continental Shelf; Tanaka J., dissenting, supra note 364 at 175; see also Currie, Forcese & Oosterveld, supra note 269 at 132. “ See Henkin, supra note 276 at 49. 536  65  background theory, will only play a limited, though significant, role well entrenched within the framework of a positivist doctrine of sources. 3.5.3.1 Appraisal in the Light of the Consent Principle In suggesting that ethical considerations can serve a viable function as a background theory for the resolution of ambiguities that arise in interpreting treaty law, customary international law, and general principles of law, Tesón and Lepard address issues that arise from the application of the recognized sources of international law under legal positivism. Hence, their suggestion of a background role for ethics may be seen as a mere specification to the traditional doctrine of sources, which is built upon, and complies with, the state consent principle. Unlike proponents of traditional natural law concepts, Tesón and Lepard, do not exclusively or even primarily rely on logical reasoning as the means for identif’ing international law, by way of deduction from some higher system of universal morality. Rather, both authors emphasize the unfettered importance of the existing principles on the emergence of international law. Tesón thus explicitly points out that value choices must not be “exercised from nowhere, in a vacuum”. 542 Rather, the actual practice of states remains a “central touchstone of international legal reasoning” about customary international norms, and moral-political reasoning only 543 Hence, his ethical provides guidance in selecting and interpreting the relevant precedents. theory is merely one component in the process of arriving at legal propositions, and only works 5 in conjunction with recourse to “institutional history”, that is, state practice and treaty texts. Similarly, Lepard presents respect for the existing legal structure as a basic tenet of his legal 545 and initially recognizes the accepted sources of international law, that is, methodology, 546 treaties, international custom, and general principles. Nevertheless, it must be acknowledged that, in difficult cases of legal analysis, the ethical background theory becomes decisive in that it informs the specific interpretation of treaty norms or instances of state practice, or even “tips the balance” towards the recognition of a certain rule as customary law or a general principle of law. This, however, means that the final decision on the content of international law rests on assumptions that are not directly derived from  542  See Tesón, Humanitarian Intervention, supra note 45 at 15. Ibid. at 12, 15, 174. ”Ibid. at 15. 5 See Lepard, supra note 323, at 102, 115. 546 Ibid. at 102.  66  expressions of the consent of states, and, in any event, not dependent on the consent of a particular state. Yet, this ultimately decisive role for ethical considerations is limited to cases of ambiguities, that is, to cases in which the traditional methods simply fail to reveal the existence, or absence, of the necessary state consent. The ethical background theory serves to “begin to provide at least some 547 general answers” to questions that the traditional approaches precisely left unresolved. Accordingly, it can be argued that the proposition of an ethical background theory providing guidance in difficult cases of identifying and interpreting the international law does not really conflict with the positivist consent principle, but only supplements it where it is unfit to produce clear outcomes concerning the status of a rule in international law. 3.5.3.2 Appraisal in the Light of the Separability TI,esis Yet, even in this limited role within the framework of the traditional doctrine of sources, recourse to ethical theories conflicts with strict legal positivist thinking in that it blurs the clear separation between the realms of law and morality required by the separability thesis. Unlike in the case of the consent principle, this conflict is not just an apparent one. According to the separability thesis, moral considerations should play no role, not even as a supplementary means, 548 in determining the content of the international law. The following discussion will therefore focus on the question if the separability thesis can claim absolute validity in international legal theory, or if it can legitimately be deviated from. I will argue that a clear separation of legal and moral reasoning should not be required in theory, since it cannot be upheld in practice. Taking into account the methods through which international law is ascertained in practice, I will even suggest that a coherent ethical theory can serve a valuable function in the international legal discourse. In theory, international law, under a positivist approach, is determined inductively as a function 549 Accordingly, the separability thesis states that there is no room for moral of hard facts. ° What is required by doctrine is empirical research, notably into 55 considerations in this process. ’ The positivist 55 agreements, as well as into the practice and the domestic laws of states. 547 Ibid at 102. See Raz, supra note 284 at 214; see generally Holzgrefe, supra note 284 at 35; Ratner & Slaughter, supra note 264 at 5. See Schachter, “International Law”, supra note 273 at 61. 50 See Raz, supra note 284 at 214; see generally Holzgrefe, supra note 284 at 35; Ratner & Slaughter, supra note 264 at 5. / Anghie, supra note 283 at 13.  67  approach to the ascertainment of international law thus supposedly functions in a value-free manner. 5  2  In practice, the analytical works of international lawyers have, at least at first glance, by and large adhered to this doctrinal position and largely focused on the analysis of texts, official statements and the actual intent and behavior of governments.  Moral-philosophical  considerations, by contrast, have been rejected as irrelevant, and even controversial issues such as humanitarian intervention have been discussed as a conflict between principles of positive international law without reference to “the moral underpinnings of the international legal order and their bearing on the problem [...]“.“ Yet, the proponents of legal methodologies that take into account ethical considerations suggest that this methodological theory and its apparent application in practice do not properly reflect the reality of international legal analysis. Notably, Tesón argues that legal positivism, contrary to its theoretical assumptions outlined above, cannot escape value choices in practice, since both treaty ’ This need for interpretation, Tesón states, is 5 texts and state practice need to be interpreted. 556 He argues that the assertion of a particularly transparent in the context of international custom. norm of customary law, at least in the areas of use of force and human rights, cannot be purely descriptive and value-free, since the claim that certain precedents shape a customary rule is based on a process of selecting and interpreting instances of state practice that reflects and 557 As well, treaty interpretation according to the rules of the Vienna requires a value choice. Convention may face the problem that several relevant purposes of the treaty in question need to 558 be ranked, for which process a guiding precept is equally necessary. Then again, if the content of customary law and international law in general can only be determined by way of an interpretation, a value-free approach does not provide the means to solve international legal problems, such as the controversy about a right of humanitarian 559 Therefore, Tesón suggests that the articulation of legal propositions necessarily intervention. requires a moral-political philosophy that serves as a “background  [...]  theory” and provides  552  See Tesón, Humanitarian Intervention, supra note 45 at 15. Ibid. at 8. Ibid. at8, 313. Ibid. at313, 15. 556 Ibid. at 313. Ibid. at 12, 14-15, 313. Ibid. at 151. Ibid. at 15.  68  ° Furthermore, it is submitted by Lepard that 56 guidance in making the necessary value choices. the application of the existing sources in practice is problematic not only in that their content may be ambiguous, but also because different legal norms may collide. Where these sources themselves reflect ethical principles, these principles may serve both to give more specific ’ 56 content to the legal norms and to reconcile conflicts. The accounts of other academics indeed provide evidence that the analytical practice of international lawyers fails to live up to the standards that the underlying positivist doctrine of sources establishes. It has already been seen that especially the sources of international custom and general principles of law raise essential operational difficulties in practice. Consequently, assertions of legal norms, while on the face based on the inductive analysis required by legal er. As has been noted 562 positivism, ultimately exhibit a selective approach by the decision-mak for customary law analysis, “the oft-repeated doctrinal position state practice coupled with opinio juris  —  —  that customary law depends on  oversimplifies the manner in which such law actually  563 emerges”. To sum up, the argument that the traditional, strictly positivist theory is inadequate to explain how international norms are identified, can be substantiated by evidence of the practice of legal analysis. If, however, a determination of the specific content of international law cannot be undertaken, as purported by positivists, in a value-free process based exclusively on hard facts  and positive evidence of state consent, the question arises what rules or guidelines govern the necessary interpretation of the relevant legal materials. It appears that a normative theory based on ethical principles can provide a coherent and transparent standard according to which such interpretation can occur. While this proposition is in explicit contrast to the positivist separability thesis, it may constitute a more accountable basis for decisions about the status of international law which hitherto were made on the face of it pursuant to the separability thesis, but in fact reflected selections made by the analyst without explicit justification.  560  Ibid. at 6-7, 12, 15. See Lepard, supra note 323 at 29, 102. 562 See Goldsmith & Posner, supra note 349 at 1117; see also the critique by Currie, Forcese and Oosterveld of Judge McNairs approach to the identification of general principles of law in his separate advisory opinion on the International Status ofSouth-West-Africa, supra note 269 at 145. 563 See Currie, Forcese & Oosterveld, supra note 269 at 135-136. 561  69  3.5.3.3 The Risk ofSubjectivism While the need to complement the positivist analysis of the existing legal sources with a theory that is apt to provide guidance for the necessary interpretation establishes a strong case for taking ethical considerations into account as part of a legal methodology, recourse to an ethical theory raises concerns similar to those confronted by natural law concepts. Especially, it may be argued that legal propositions that are based on ethical considerations may reflect subjective assumptions about what is ethical and what is unethical. At worst, statements of the law may 564 Tesón himself criticizes the classical natural law reflect the analyst’s ideological assumptions. theory, with which he shares the emphasis on a necessary link between international law and moral philosophy, for “their tendency to dogmatism, their emphasis on self-evident principles 565 which admitted no critical challenge”. There are, however, several arguments that can weaken this objection against the recourse to an ethical normative system as a background theory in difficult cases of international legal analysis. First of all, it has to be reiterated that in this role, ethical considerations would have a limited function only and not shape the international law “in a vacuum”. 566 Rather, they would only 567 The traditional elements of complement hard facts such as state practice and treaty texts. international legal reasoning would thus maintain their function as a “central touchstone”, 568 and limit the space for subjective assumptions. Moreover, moral reasoning is not necessarily subjective or ideologically charged. 569 Much depends on how the underlying ethical theory is devised. The methodology for identifying ethical principles can itself contain safeguards against subjectivism and ideologism. For instance, it may be possible to identify certain ethical values, notably values of humanity, that are already endorsed by positive legal principles and can, by means of analogy, support related ° Along these lines, Lepard argues for recourse, inter alia, to ethical principles 57 considerations. that find at least implicit support in the Charter itself. ’ Another element that may provide useful 57 guidance in deriving more specific rules from general principles are pronouncements by 564  See generally Allen Buchanan, “Reforming the international law of humanitarian intervention” in J.L. Holzgrefe and Robert 0. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 130 at 154. 565 See Tesón, Humanitarian Intervention, supra note 45 at 9. 566 Ibid. at 15. Ibid 568 Ibid. at 12, 15, 174. 569 See Buchanan, supra note 564 at 154-155. 570 See Brownlie, Principles, supra note 294 at 26. 571 See Lepard, supra note 323 at 117. 70  international institutions, which have gained increasing prominence and influence in international relations. 572 An alternative, more theoretical, approach to the elaboration of an ethical theory that is as objective as possible could lie in the methodology adopted by Tesón in the tradition of modern 573 A basic foundation of this approach is the commitment to aim at finding “rights” philosophers. “moral principles to which all rational agents would give allegiance”, and to revise principles that, contrary to the initial intuition, later on turn out to be incorrect. 574 Finally, it should also be recognized that, in reality, scholarly pronouncements of international legal experts have already exercised a profound influence on the development specifically of customary international law as it is today. 575 Against this backdrop, to allow for coherently elaborated ethical theories to become part of the debate about the law as it is does not seem to increase the risk of subjectivism to an unjustifiably significant extent. 3.5.3.4 Conclusion In conclusion, where the application of the existing sources as required by the traditional positivist doctrine fails to produce unambiguous results, ethical theories can be useful as a “background” tool for a transparent and consistent resolution of such ambiguities. Within these limits, it is thus justified to apply moral and ethical considerations as part of a legal methodology. The positivist principles of consent and the separation of law and morality provide no compelling reasons against the recognition of a background role for ethical theories. At the same time, the underlying ethical theory must be as objective as possible. The elaboration of the ethical background theory, in the next chapter, will thus pay particular attention to providing safeguards against subjectivism and ideologism.  3.5.4 Ethical Principles Closing Gaps in the Legal System Another question is whether ethical principles can have the quality not just to contribute to the identification of legal norms through the accepted procedures, but even where a thorough analysis of the sources has clearly established that positive international law does not contain a  572  See Currie, Forcese & Oosterveld, supra note 269 at 17-18. r See Tesón, Humanitarian Intervention, supra note 45 at 9. Ibid. at 9-10. See Currie, Forcese & Oosterveld, supra note 269 at 136.  71  576 rule on the issue at hand. A purely positivist approach to such a constellation of a “non liquet” 577 would suggest that the states retain the unfettered liberty to orient their or a “legal void” 578 Yet, as Vice-President Schwebel pointed out in his dissenting conduct along national interests. advisory opinion on the Legality ofthe Threat or Use ofNuclear Weapons, the holding of a “non liquet” had been considered by the drafters of the ICJ Statute as a “blind alley” that should be 579 Another solution could then possibly lie in referring to ethical principles that obtain avoided. the force of binding international law and provide guidelines for the behavior of states with the same authority as conventional or customary law. The idea that certain ethical principles may independently be considered as binding international law, although they have not explicitly been recognized in treaties, international custom, or general principles of national or international law corresponds to Lepard’s concept of general ° Yet I suggest that the notion of general principles of moral law has 58 principles of moral law. been used by Lepard to describe a specific concept that may create further issues, the solution of which would side-track from the actual objective of this thesis. The characterization of general principles of moral law as general principles within the meaning of Article 38(1 )(c) of the Statute of the Court, ’ for instance, is incompatible with the prevailing understanding of the wording of 58 that provision and raises the question if it is possible and meritorious to entrench the concept within the framework of legal positivism. In the following, I will focus exclusively on the basic idea that legal principles may directly be inferred from a system of ethics or morality. While it is not my intention to produce new terminologies, I will label this form of legal principles as “principles of ethical law”, simply to indicate their origin and quality, while distinguishing them from the more specific concept of general principles of moral law advocated by Lepard. The recognition of principles of ethical law constitutes a departure from the traditional doctrine of sources. Notably, it conflicts to an even higher degree than the idea of an ethical background  576  See Hugh Thiriway, “The Sources of International Law” in Malcolm D. Evans, ed., International Law (Oxford: Oxford University Press, 2006) at 128 (defming non liquet as “a finding that there was no law on point”); see also Cassese, International Law, supra note 306 at 189, n. 3. Cf Bannon, supra note 61 at 1162-1 163. 578 See Rather & Slaughter, supra note 264 at 5; see also Cassese, International Law, supra note 306 at 189, n. 3. See International Court of Justice, Legality ofthe Threat or Use ofNuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226, Schwebel J., dissenting opinion, online: International Court of Justice <http://www.icj cij .org/docket/files/95/75 15 .pdf5 at 323 (discussing the concept of general principles of law). 580 See Lepard, supra note 323 at 106. 581 Ibid. at 107.  72  theory with central propositions of legal positivism. Moreover, the notion of principles of ethical law may face challenges that were also levelled against natural law theories. With a view to the difficulties that the concept raises in light of the separability thesis and the charge of subj ectivism, reference may yet be made to the prior discussion in the context of ethical considerations serving as a background theory. As demonstrated above, neither finds the separability thesis general application in practice, nor are deviations necessarily detrimental to 582 The danger of subjectivism equally fails to constitute a convincing argument the legal system. against recourse to ethical imperatives. Rather, it merely, though importantly, demands that the 583 Yet, principles of underlying ethical theory be devised with a view to utmost objectivity. ethical law challenge the consent principle and will therefore be appraised in more detail in the light of this basic tenet of legal positivism in international law. 3.5.4.1 Appraisal in the Light of the Consent Principle Principles of ethical law originate as ethical principles.  584  Different approaches may be  585 Such an approach might, as in developed to the identification of the relevant ethical principles. the case of Lepard’s theory on general principles of moral law, inter alia take into account the general weight that a certain proposition is given by contemporary international law. 586 The specific legal rule of ethical law, however, cannot necessarily be traced back to acts of the will of states, and is notably not dependent on the consent of individual states. Rather, the concept advocated by Lepard exemplifies the variety of sources external to the will of states that analysts may use to ascertain specific legal obligations under ethical law: Lepard’s methodology, on the one hand centres upon what he defines as the preeminent ethical principle of unity in diversity, and, moreover, takes into account not just legal but also religious and philosophical moral 587 It is thus the analyst through a theoretical concept and not the states through expressions texts. of their will who ultimately decide on the content of international law. The notion of principles of ethical law therefore conflicts with the fundamental principle of legal positivism that all international law is derived from the will of states.  582  585 586 587  See Part 3.5.3.2, above. See Part 3.5.3.3 above. Cf Lepard, supra note 323 at 106. See Part 4.1, above. See Lepard, supra note 323 at 108 [emphasis added]. Cf ibid. at 108-109.  73  In the following, I will endeavor to appraise the concept of principles of ethical law in light of the consent principle, and to discuss its validity with regard to those considerations that have been said to require the consent principle as a necessary foundational rule of the international legal system. Specifically, the consent principle has been defended as the basis for the legitimacy and effectiveness of international law, and as a tool to reduce the risk of predation of weaker states by stronger ones, or of subjectivism and a lack of clarity in the determination of international law. 588 I will argue that none of these concerns presents an insuperable obstacle for the recognition of principles of ethical law, and that, moreover, the consent principle cannot claim absolute respect anymore already in the contemporary international legal system. 3.5.4.2 The Legitimating Force ofState Consent Proponents of the state consent principle uphold that it is the only mechanism in international relations that can provide international law with legitimacy, and as such can justify the enforcement of international norms. 589 This proposition can be challenged on two different accounts: first, on the basis of a comparison with domestic legal systems, and, second, by more fundamentally questioning the normative force of consent given by state leaders. In domestic societies, certain notions of a “higher law”, in the form of “rights of man” that are “natural” and “unalienable”, are not only accepted as legitimate, but even form core constitutional principles.  590  The proposition that legitimacy on the international level, by  contrast, can only flow from state consent, rather than any body of “higher law”, is based on the assumption that the world community consists of states that lack any shared substantive ends or ’ 59 a shared conception ofjustice from which legal norms could otherwise derive legitimacy. Yet, the international legal system is not as different from domestic societies as this argument suggests. Firstly, the members of liberal societies are often equally deeply divided over questions of justice, but they still coexist within legal systems that can be regarded as legitimate although 592 Also, the not every single norm is derived from the consent of the members of that society. international human rights doctrine exemplifies that certain shared values have emerged on the  588  See generally Buchanan, supra note 564 at 148-158. See generally ibid. at 149-152. 590 See Currie, Forcese & Oosterveld, supra note 269 at 9-10. 591 See Buchanan, supra note 564 at 150; cf Terry Nardin, Law, Morality, and the Relations ofStates (Princeton: Princeton University Press, 1983) at 5, 14. 592 See Buchanan, ibid.  74  international level as well. 593 This may be seen as a resurrection of natural thinking similar to that reflected in liberal domestic constitutions. 594 It is therefore conceivable that international legal norms might derive their legitimacy from concepts other than the consent of the states, similar to some fundamental norms in domestic legal systems. Moreover, it appears doubtful that state consent can possess the normative, legitimating force that proponents of a strict legal positivism suggest. 595 “State consent”, after all, is in practice nothing else than the consent of the leaders of these states. 596 Many state leaders, however, derive their power from undemocratic systems in which massive human rights violations occur, 597 Yet, if they do and can thus hardly be considered as agents who represent their peoples’ will. not represent their people, but possibly rather oppress it, the consent of these individuals can hardly be considered as the decisive criterion that confers legitimacy upon international norms. 598 Altogether, the state consent principle can, therefore, not be seen as the sole source of legitimacy for international law. It is conceivable that ethical principles might qualify as an alternative source from which at least equally legitimate legal norms can emanate.  3.5.4.3 Lack ofEffectiveness Another alleged justification for the foundational role of the consent principle, that states will only comply with norms to which they have given their consent, and therefore only law made by the states can effectively regulate their relations, has equally been rebutted by Buchanan through 599 Buchanan argues that domestic legal systems do a comparison with domestic legal systems. not descend into chaos although they do not require consent to every norm, and that the international legal order is not decisively different from domestic orders in this regard. ° 60 In support of this argument, the historical experience of the decolonization process may in fact be interpreted as an example illustrating that the effectiveness of legal rules, also on the international level, can be ensured although, or precisely because, these rules have not been consented to by their addressees. When the former colonies became independent, the Ibid. at 151; see also Currie, Forcese & Oosterveld, supra note 269 at 17. Cf Currie, Forcese & Oosterveld, ibid. at 9-10, 17. Ibid. at 151, 152. Ibid at 152. Ibid. Ibid. Ibid. at 148-149. °° Ibid.  75  international legal system was, to a large extent, imposed upon them by assuming that newly independent states were bound by the existing customary law. ’ 60 In addition, assuming arguendo that rules to which states have given their consent will work at least more effectively than rules that are independent of the consent of the governed, it seems doubtful that these rules would exercise any regulating effect. If international law consisted only of those rules to which the states had accorded legal status through their statements and actions, this legal system would only describe and legitimate the actual state conduct as it has been happening, it would not really prescribe the way in which states should conduct their affairs, thus constraining them in the exercise of their power. 602 Positivism has therefore been criticized as a “deeply conservative doctrine” and “a tool of power rather than a means to challenge or constrain the arbitrary exercise of that power”. 603 In conclusion, the proposition that the consent principle must necessarily be at the basis of the international legal system to ensure its effectiveness is highly questionable. It can, on the contrary, be argued that, if international law is to have any constraining effect on the states’ exercise of power, it must provide an avenue for non-positivist conceptions of justice, on the 604 basis of which the legitimacy of the law that has been created by the states can be challenged. The concern for the effectiveness of the international legal system thus does not provide a compelling argument against the recognition of principles of ethical law either. 3.5.4.4 Risk ofSubjectivism While principles derived from a system of ethics may thus be equally legitimate and effective as norms created by the consent of states, deviation from the rules that have been made though this recognized process may confront the challenge of subjectivism. 605 This risk may indeed be more significant in the context of principles of ethical law than in cases where ethical considerations serve as a background theory only. Whereas in this latter case, ethical principles function in conjunction with the “touchstone” of institutional history, that is, treaty texts or instances of state 606 they may, in the case under consideration here, obtain independent legal force based practice, on their identification through moral reasoning. 601  Cf Currie, Forcese & Oosterveld, supra note 269 at 16. Ibid. at 15. 603 Ibid. 604 Cf Currie, Forcese & Oosterveld, supra note 269 at 15. 605 See generally Buchanan, supra note 564 at 154-155. 606 Cf TesOn, Humanitarian Intervention, supra note 45 at 15. 602  76  In response to this challenge, particular attention should be paid to ensuring that proposed principles of ethical law do not simply reflect subjective or ideological positions. As has been argued above, moral reasoning does not need to be entirely subjective. Rather, it can find support, for example, in international legal materials and the pronouncements of international institutions. The contemporary proliferation of international bodies has created an institutional framework in which an increasing amount of such pronouncements is produced. As more concrete statements emanate from institutions that at least “simulate domestic legislative bodies and courts”, ethical principles may be asserted with more precision and authority, and thus 607 partially avoid the challenges that had been mounted against natural law theories. The perceived danger of subjectivism thus, again, does not essentially undermine the argument for the recognition of principles of ethical law. It demands, however, that the underlying ethical framework is defined with a view to securing the highest possible degree of objectivity. Equally, the underlying concept should produce sufficiently clear results. In this context, the establishment of abstract categories such as “fundamental”, “compelling”, and “essential” ethical principles, as suggested by Lepard, seems to provide very little guidance in determining the relevant ethical principles, unless it is complemented by a systematic methodology. The philosophical theory and methodology for the identification of the relevant ethical principles shall be addressed in the following Chapter 4. 3.5.4.5 Risk ofPredation Finally, strict adherence to the state consent requirement could be defended as an instrument to protect weaker states against predation by stronger ones. The basis of this thesis is that the state consent principle acknowledges the political equality of all states, and that, if this principle were deviated from, material inequalities that exist between the states would ultimately result in some states taking advantage of their power and preying upon their weaker peers. 608 Assuming for the moment that this empirical prediction is correct, and that strict adherence to the state consent requirement is a safeguard for the states’ right of self-determination and individuals’ human rights against violations by more powerful states, 609 its value insofar is purely instrumental, that is, it can explain the need to adhere to the consent principle only to the  607 608 609  Cf Currie, Forcese & Oosterveld, supra note 269 at 17. See generally Buchanan, supra note 564 at 153. See generally ibid.  77  610 It could thus be contended that the extent that otherwise predatory behaviour would occur. state consent requirement should be adhered to, in principle, but that it has no claim to absolute ’ 61 validity in cases where no predation would occur. With regard to the law of humanitarian intervention in particular, the risk of predation by 612 In this case, however, the stronger states on weaker ones may arguably be a real concern. question arises to what extent the rights of weaker states as such are worthy of protection, or whether the human rights of their individual citizens must be the focus of our prediction about the risks of deviating from the state consent requirement. 613 In conclusion, it is submitted here that the state consent principle, by acknowledging the formal equality of all states, may possibly have an instrumental value in reducing the risk of stronger states preying on weaker states. Yet, as will be elaborated as part of an underlying ethical theory, and in keeping with Tesón’s normative theory, state rights should be conceived as subordinate to the rights of individuals. 614 Therefore, the utmost concern should be one for human rights, and, consequently, the risk of predation by stronger states against weaker ones cannot serve to dismiss the case for a recognition of principles of ethical law where these would on aggregate be beneficial for human rights protection. 3.5.4.6 Inconsistencies and Exceptions to the State Consent Principle Having suggested that the chief arguments for a strict adherence to the positivist state consent requirement are no compelling obstacles to the recognition of principles of ethical law, it should also be noted, that this concept is not as revolutionary as it might, at first glance and against the backdrop of the dominant role of legal positivism in contemporary international law, seem. Rather, some support for the recognition of certain ethical values as legally binding may be found both in jurisprudence and academic literature. The International Court of Justice, for instance, justified the binding force of the prohibition against genocide under reference to the 615 In the Corfu Channel case, the Court based legal obligations on concept of “moral law”.  610  Cf ibid at 153. Ibid 612 See e.g. Oscar Schachter, “The Legality of Pro-Democratic Invasion” (1984) 78 A.J.I.L. 645, at 649-650 (Lexis) [Schachter, “Pro-Democratic Invasion”]. 613 On the issue of the moral standing of states and their citizens see generally TesOn, Humanitarian Intervention, supra note 45 c. 3. 61’i Ibid. at 79. 615 See International Court of Justice, Reservations to the Convention on Genocide, Advisory Opinion, [1951] I.C.J. Rep. 15, online: ICJ <http://www.icj-cij .org/docket/files/12/4283 .pdf at 23. 611  78  “certain general and well-recognized principles,” which included “elementary considerations of humanity”.  616  Equally, Brownlie states that certain criteria of public policy related to  considerations of humanity may be relied upon without the need for particular justification. 617 Furthermore, in international humanitarian law, the so-called Martens Clause with its reference to “the laws of humanity and the requirements of public conscience” has been relied upon in conventions and judicial proceedings as a supplementary means to fill gaps in treaty and customary law. 618 In addition to these precedents for the recognition of certain principles that had not been justified by a reference to the will of states, the state consent principle itself reveals inconsistencies and has already been subject to several exceptions in theory and practice. Most fundamentally, the positivist principle that states create legal obligations by expressing their consent to certain rules only obtains meaning if it implies the principle that agreements must be honored (pacta sunt servanda). 619 This principle itself cannot without circularity be 620 Rather, it may be seen as an emanation of natural law. based on the consent of states. ’ 62 Consequently, the positivist doctrine as such is built upon naturalist arguments, recourse to which is otherwise forbidden by the separability thesis. 622 More specifically, the “axiom that law is made only by consent” is difficult to reconcile with 623 International custom is one of several elements of the doctrine of customary international law. 624 Yet, quite the two formal sources that give rise to international norms of general application. apart from the operational difficulties of this concept and its often selective application in practice, it does not even in theory require the expressed consent of every single state. Firstly, the consent of those states that actively participate in a certain behavioral pattern is said 625 Yet, not every single state even needs to participate in the to be implied in this practice. 626 Rather, it is required “general practice” for the creation of a new norm of customary law. 616  See Corfu Channel case (United Kingdom v. Albania), [1949] I.C.J. Rep. 4, online: ICJ <http://www.icj cij .org/docket/files/1 /1 645.pdf at 22. 617 See Brownlie, Principles, supra note 294 at 26. 618 See Theodor Meron, “The Martens Clause, Principles of Humanity, and Dictates of Public Conscience” (2000) 94 A.J.I.L. 78 (HeinOnline) (with reference to the original text of the clause, at 79). 619 See Henkin, supra note 276 at 47 (for treaty law). 620 See Brierly, supra note 335 at 53. 621 See Henkin, supra note 276 at 47. 622 See Holzgrefe, supra note 284 at 36. 623 See Henkin, supra note 276 at 50, see also Currie, Forcese & Oosterveld, supra note 269 at 17. 624 See Brownlie, Principles, supra note 294 at 3, 5. 625 See Currie, Forcese & Oosterveld, supra note 269 at 16. 626 See Cassese, International Law, supra note 306 at 162.  79  sufficient if “a significant number of representative States concerned with the subject” engage in 627 a particular practice. Even for those states that actively participate in the practice under consideration, it has been argued that the implication of consent is “not a philosophically sound explanation of customary 628 Rather, it is an attempt to justify the application of rules to which states can hardly be law”. 629 In particular, the proposition that even newly independent states shall said to have consented. be bound by all existing international customs, including those predating their independence, provokes the criticism of being “no more than a fiction resorted to in order to conceal the objectively binding force of international law as independent of the will of the particular ° 63 State.” Secondly, in practice, no court has ever undertaken an analysis of the views of every single 631 As a result of the enormous increase in the number of states to nearly 200, from about 40 state. “in the heyday of international customary law”, it has indeed become an extremely arduous and 632 Against this sometimes impossible task to gather the enormous amount of evidence required. backdrop, Brierly’s demand that in determining the nature of international law, rather than “forc[ing] the facts into a preconceived theory”, we should find a theory that can explain the 633 may serve as the starting point for an approach to international law that does not actual facts, strictly adhere to the consent principle. Finally, another recent trend which brings into question the general assertion that international norms are binding upon states because they have received their consent is the concept of jus cogens and its impact on the persistent objector rule. 634 As indicated above, no contracting out is possible from a rule that qualifies asjus cogens, that is as a peremptory principle that admits no 635 Cassese even goes farther and generally denies the possibility that dissenting states derogation.  627  See Henkin, supra note 276 at 50; see also Restatement (Third), supra note 289, § 102 comment b (“[the practice] should reflect wide acceptance among the states particularly involved in the relevant activity.”) 628 See Brierly, supra note 335 at 51-52; see also Currie, Forcese & Oosterveld, supra note 269 at 17. 629 See Brierly, ibid. at 52, see also Currie, Forcese & Oosterveld, supra note 269 at 17. 630 See Hersch Lauterpacht, Private Law Sources and Analogies ofInternational Law: with Special Reference to International Arbitration (N.p.: Archon Books, 1970) at 53; see also Currie, Forcese & Oosterveld, supra note 269 at 17; see Henkin, supra note 276 at 50. 631 See Cassese, InternationalLaw, supra note 306 at 162. 632 Ibid at 165. 633 See Brierly, supra note 335 at 52; see also Currie, Forcese & Oosterveld, supra note 269 at 17. 634 See Henkin, supra note 276 at 50; see also Cassese, International Law, supra note 306 at 155 (forjus cogens), 162-163 (for the persistent objector rule) 635 See Henkin, supra note 276 at 50.  80  636 In his view, international relations today are a lot may be exempt from any customary norm. more social values-oriented than they used to be, and the concept of customary law can therefore 637 be considered as having lost its initial consensual character. Regardless of whether Cassese’ s complete denial of the persistent objector rule is shared, it is apparent that even the positivist doctrine of customary international law makes exceptions from the general rule that states are bound by international customs because they have consented to them. Consequently, it is difficult to maintain that consent is an indispensable requirement for every binding international law. 3.5.4.7 Conclusion The foregoing analysis has shown that none of the fundamental considerations on which strict adherence to the state consent requirement is proposed compellingly undermines the submission that, in deviation from this strictly positivist principle, certain ethical principles can independently be regarded as possessing binding legal force. On the contrary, it has been argued that a strict limitation of international law to norms that have voluntarily been made by the states lacks constraining force on the exercise of the states’ power, and that principles of ethical law may therefore be a legitimate addition to the international legal system as based on the traditional doctrine of sources. This proposition appears to be in conformity with some dicta by the International Court of Justice and academics, as well as with the resurfacing idea that certain fundamental rights and obligations must be respected and cannot be abrogated even by sovereign 638 states.  3.6 Conclusions and Outlook The inquiry into different theoretical approaches to the law governing the use of force for humanitarian protection has led to the conclusion that, despite several conceptual and operational flaws of the doctrine, it is best to adhere to legal positivism as the general basis for an analysis of the legal status of the R2P framework. Accordingly, the positivist sources of conventional and customary law will provide the primary tools for the following legal analysis. Yet, in deviation from the positivist separability thesis, moral and ethical considerations will be granted important functions as a background theory, informing the interpretation of treaties and the analysis of 636  See Cassese, International Law, supra note 306 at 165. Ibid at 164-165. 638 Cf Currie, Forcese & Oosterveld, supra note 269 at 19. 637  81  international custom, as well as in the form of principles of ethical law, that is, ethical principles that obtain binding legal force independently of their recognition in any of the positivist legal sources. Methodologically, the inquiry into the international law on the different elements of R2P will therefore start out, where appropriate, with an interpretation of the relevant treaties. This interpretation will follow the steps set out by Lepard, that is: firstly, ascertain the ordinary meaning of the relevant provision in light of the object and purposes of the treaty; secondly, determine the parties’ original shared understandings at the time of the adoption of the treaty; thirdly, inquire as to whether there are any new generally accepted understandings of the terms that can trump the ordinary meaning and original understandings since they are equally or more consistent with moral and ethical considerations; and, finally, resort to ethical principles for guidance if the aforementioned steps fail to produce an unequivocal result. Also, I will address any relevant customary norms. Important material evidence for both elements of customary international law, the general state practice and the opinio juris sive necessitatis, will be provided notably by national policy statements and declarations by UN bodies. Moreover, potential examples of a “negative state practice” will critically be appraised. The need to interpret these material sources of customary law will be approached on the basis of an ethical background theory, which will moreover serve to resolve, if necessary, ambiguities and conflicts in both conventional and customary law. Finally, where this method fails to expose rules of international law, ethical considerations will be resorted to in order to fill this legal void. As “principles of ethical law”, they will provide rules of binding legal force that complement the existing conventional and customary norms, independently of any specific proof of the consent of states. A potential backlash of the recourse to ethical considerations has been identified in the risk of subjective and ideological propositions. To avoid this danger, a coherent ethical theory will need to be devised, that rests on a philosophical and methodological basis which provides the necessary safeguards against subjectivism and ideologism. The elaboration of such a normative theory of the ethics of R2P will be undertaken in the next chapter.  82  CHAPTER 4: THE ETHICS OF R2P As a result of the decision for a method that, while being rooted in legal positivism, grants a central role to ethical and moral considerations, a framework must be set out that exposes the relevant ethical and moral principles. To avoid the risk of selectivity, such a framework should provide for a consistent ethical theory on the issues of humanitarian intervention and a responsibility to protect. In this chapter, I will therefore endeavor to outline the ethics of R2P, that is, ethical principles and imperatives that govern the different components of the R2P framework, from the responsibility of a state for the protection of its own people to the rights and duties of foreign entities. Bearing in mind the legacy of natural law theory, an ethical theory of R2P that may influence the contents of international law, first and foremost, needs to confront the challenges of subjectivism and ideologism. To this end, before engaging in a substantive discussion of the individual aspects of R2P, I will set out the parameters that I deem a suitable basis for an ethical theory that is, to the best degree, objective and free of ideological presumptions. For this part, I will specifically draw on the achievements by Tesón and Lepard, who devoted significant parts of their works to the definition of a moral-philosophical theory or the exposition of ethical principles of humanitarian intervention. 639 The analysis will proceed in several steps: firstly, it will be suggested that different ways exist for devising a normative ethical theory, including a more empirical and a more theoreticalphilosophical method. Taking the position that a primarily empirical analysis is inadequate for identifying the most meritorious ethical principles, secondly, a model will need to be devised to guide the determination of ethical principles through a process of theoretical-philosophical reasoning, taking into account, again, the risk of subjective or even ideological presuppositions. I will suggest that the social contract theory outlined by Rawls in “A Theory of Justice”, adapted to the level of international relations, provides a suitable thought-model for determining the ethics of R2P. On this basis, finally, I will discuss substantive ethical imperatives and argue that not only has the host state a responsibility to protect its population, but also have foreign states moral rights and even duties to take military action for the protection of imperiled populations. ° 64 These imperatives will then provide the necessary guidance, in the next chapter, in analysing the positivist sources of international law and complementing them where they fail to provide rules. 639  See Tesón, Humanitarian Intervention, supra note 45, c. 2-6; Lepard, supra note 323, c. 2. Parts of this chapter have previously been submitted as a paper in the seminar “International Law Problems” under the supervision of Professor Maurice Copithorne. 640  83  4.1 Theory of Ethics: The Preferability of a Moral Philosophy over Empiricism As the legal method adopted in this thesis, and particularly the decision to have recourse to moral and ethical considerations, has directly been informed by the approaches of Tesón and Lepard, the works of these scholars also provide a good framework for the elaboration of the required ethical theory. Both of these scholars confront the challenge to devise, as a preliminary part of their analyses of the law of humanitarian intervention, a comprehensive theory of the relevant 641 Importantly, however, they ground their respective normative theories moral or ethical norms. in significantly diverging conceptual foundations: while Tesón elaborates a moral theory that draws upon the philosophy of social contractarianism, 642 Lepard explicitly renounces any recourse to a particular philosophical approach.  643  Instead, he aims at identifying ethical  principles that find support in international legal materials, philosophical and religious texts. 644 In the following paragraphs, I will outline these two concepts in some more details, and use them to exemplify the merits of a philosophical as compared to an essentially empirical approach. I will suggest that, despite the benefits of an empirical survey of the different attitudes towards an issue like R2P, it is necessary for a compelling ethical theory to be grounded in a convincing philosophical fundament. A largely empirical approach to ethics may be exemplified by Lepard’s methodology for ascertaining the relevant principles for his discussion of humanitarian intervention. Lepard notably analyzes several primary and supplementary materials for their endorsement of the proposed rules, and discusses the link of these rules with what he considers the “pivotal and preeminent ethical principle” of “unity in diversity”. In Lepard’s concept, ethical principles to be taken into account in identifying and interpreting international legal norms must satisfy two criteria: firstly, they “can be understood as endorsed by contemporary international law, including the U.N. Charter and emerging international human rights and humanitarian law”; and, secondly, they are logically connected with the preeminent principle of “unity in diversity”. 645 The notion “unity in diversity” embodies the notion that all human beings are united “as equally  641  See Tesón, Humanitarian Intervention, supra note 45, c. 2-6; Lepard, supra note 323, c. 2. See especially Tesón, ibid. at 6 1-74, 79. 643 See Lepard, supra note 323 at 34. 1bid. at 33-35, 39-44. 644 645 Ibid. at 33-34, 39. 642  84  dignified members of one human family, who in turn can, within a framework of unity, develop 646 and take pride in individual, national, ethnic, or religious identities”. To adduce further credibility to the principles thus identified, Lepard refers to the foundational texts of seven world religions and philosophies and points to passages in these revered moral texts that may be interpreted as being consistent with or even supportive of the respective 647 This analysis of passages from religious and philosophical texts, however, serves a principles. supplementary function only. The support that particular ethical principles may potentially find in “many of the major religious and philosophical systems of the world” only further strengthens the case for their ethical and consequently legal relevance. 648 Ultimately, Lepard’s approach to humanitarian intervention is thus essentially “grounded in the tradition of international law”. 649 While he incorporates fundamental ethical principles in his legal methodology, he refers back to international law for guidance in identifying the relevant 650 The legal authority of fundamental ethical principles is derived from their, ethical principles. 651 explicit or implicit, incorporation in legal texts. The central weight that Lepard accords to legal materials, and his supplementary inquiry into revered moral texts, distinguish his approach profoundly from Tesón’s method in defining his ethical theory, a “substantive moral philosophy of international relations”. 652 Tesón engages thoroughly with different philosophical concepts that have provided the ground for opposition against humanitarian intervention. 653 He arrives at his proposition that there is a moral right of humanitarian intervention in cases of serious human rights violations through a critique of the prevailing non-interventionist model, which, in his conclusion, suffers from “philosophical 654 inadequacies”. Whereas Lepard refuses to “seek guidance on the relevant ethical principles in a particular philosophy”, 655 Tesón explicitly draws upon the concepts developed by modern political 646 Ibid at 33-34 (this “preeminent, ethical principle” of unity in diversity is itself based on an analysis of contemporary international materials and additional support from revered moral texts, ibid. at 45-50). 647 Ibid at 34 (these seven religions and philosophies have been selected as a function of the widest global dispersion of their membership and include Christianity, the Bahã’i Faith, Islam, Judaism, Buddhism, Hinduism, and Confucianism and Chinese “folk religions”, ibid. at 42). 648 Ibid. at 42. 649 Ibid. at 34. 650 Ibid 651 Ibid at 42. 652 See Tesón, Humanitarian Intervention, supra note 45 at 313. 653 Ibid, c. 5. 654 Ibid at 15, 23-24, 314. 655 See Lepard, supra note 323at 34.  85  philosophers like Rawls and Dworkin. 656 Social contractarianism, in his view, provides a 657 Specifically Rawis’s theory of “defensible” philosophical foundation for international law. international law is praised as “a step in the right direction”, although Tesón modifies it in at least one aspect, and draws different conclusions on the specific principles of international 658 In contrast to Lepard’s methodology, which is concerned with finding principles that justice. have in fact been endorsed by legal materials as well as possibly a broad range of philosophical and religious texts, Tesón undertakes to identify principles to which, hypothetically, “all rational 659 agents would give alliance”. It is apparent that Lepard, while building upon Tesón’s work in his recognition of a role for ethics in his legal methodology, has deviated from the antetype set by Tesón in defining his ethical methodology. With a view to the pivotal concern of ruling out subjectivism and ideologism, Lepard’s more empirical approach may be promising in that it sets out to identify ethical principles on which there is an international consensus. Lepard himself sees one of the merits of his approach in the potential that its foundation in legal and different religious and philosophical texts may, on a practical level, foster acceptance among governments and people from different national, cultural and religious backgrounds. 660 Tesón’s more philosophical approach to the ethics of humanitarian intervention, by contrast, may be more suspect of allowing for subjective and ideologically charged propositions. Indeed, Tesón has attracted harsh criticism when he defended the US-led invasion in Iraq in 2003 as a justified humanitarian ’ His evaluation rested, inter alia, on the propositions that the interveners, despite 66 intervention. shifting justifications and potentially additional motives, had the intention to end a tyranny that 662 Also, at the was severe enough to meet the just cause threshold for humanitarian intervention. 663 This time of this evaluation in 2005, he assumed that “the war in Iraq [fared] reasonably well”.  656  See Tesón, Humanitarian intervention, supra note 45 at 9-10, 61-74, 79, 313. ibid. at 79. 658 Ibid. at 6 1-74, 79. 659 ibid. at 9-10. 660 See Lepard, supra note 323 at 33. 661 See Fernando R. Tesón, “Ending Tyranny in Iraq” (2005) 19:2 Ethics & International Affairs 1 at 2 (EBSCOhost) [Tesón, “Ending Tyranny”]; Weiss, Ideas, supra note 1 at 124 (“Fernando Tesón’s judgments about the use of force for humanitarian purposes are usually apt, but his efforts to rationalize the end of Saddam Hussein’s tyranny in such terms are imlausible and erroneous.”); Weiss, “R2P After 9/11”, supra note 59 at 750; see also Terry Nardin, “Humanitarian Imperialism” (2005) 19:2 Ethics and International Affairs 21 at 21 (EBSCOhost) [Nardin, “Imperialism”]. 662 See Tesón, “Ending Tyranny”, ibid. at 2-15. 663 Ibid. at 13. 657  86  defence has notably been criticized for its focus on the character of the regime rather than its specific human rights abuses. 664 Despite the controversy around the specific case of Iraq, the suggested philosophical approach to the ethics of humanitarian intervention may still be preferable over more empirical concepts. It is doubtful that an approach that identifies ethical principles primarily on the basis of an empirical survey of legal and moral texts, but lacks a compelling philosophical basis, can authoritatively state the ethics governing a controversial issue like that of human protection within and across the borders of a state. Given that it is my intention to use ethical considerations not only as such, but more significantly even as an element of international law, the selected ethical principles should be the most meritorious ones. Lepard himself admits, however, that these are not necessarily the principles that his approach exposes. 665 His reliance on legal materials and emerging legal norms means, as we recall the positivist foundation of contemporary international law, that recourse is had to principles that are essentially based on the will of state representatives and may have been designed without regard to any moral and ethical 666 The revered moral texts of major world religions and philosophies, which are considerations. supposed to enhance the credibility of the proposed principles, are ambivalent on the issue notably of military force for humanitarian purposes, as they may contain propositions that are 667 A comprehensive treatment of these texts antithetical to the passages selected by Lepard. would indeed require a survey of the host of specialized commentaries that exist on the various 668 religions and philosophies an undertaking that Lepard explicitly renounces. -  For these reasons, it appears preferable to undertake the inquiry into the ethics of humanitarian intervention and the responsibility to protect on the basis of a moral philosophy of international relations, such as the one suggested by Tesón. Yet, as his own extensive discussion of interventionist and non-interventionist positions demonstrates, there is a variety of philosophical concepts that dispute the authority to establish ethical imperatives. The thorough discussion and appraisal of all of these philosophies would exceed the scope of this thesis. Instead, the subsequent analysis will rest on the assumption that social contract theory provides an adequate  664  See Nardin, “Imperialism”, supra note 661 at 21. Lepard concedes this point, supra note 323 at 34. 666 See Holzgrefe, supra note 284 at 35-36; Rather & Slaughter, supra note 264 at 5. 667 See Lepard, supra note 323 at 41. 668 Ibid. at 42. 665  87  philosophical foundation for the ethics of international relations. 669 As the following section will show, social contractarianism, specifically in the form given to it by Rawis, can be equipped with mechanisms that provide a certain protection against subjective propositions.  4.2 Model for Ethical Arguments: Rawis’s Social Contract in the Original Position Having suggested that a philosophical approach to the ethics of R2P is preferable, and that social contractarianism generally is an appropriate philosophical basis, the methodological question remains of how to apply this philosophy to identify specific ethical principles. It is necessary to devise a criterion or procedure that enables the analyst to expose the ethical imperatives that arise out of the concept of the social contract. This criterion or procedure, moreover, will allow for a valuation of ethical arguments that have been made in the existing literature and that are often consistent in themselves but nevertheless incompatible with one another as they may derive from different underlying philosophical concepts. A useful tool in this regard is the “thought-experiment” 670 of a hypothetical contract between “original contractors”, advocated by John Rawls in his modern version of social contractarianism. According to this thought-model, societies are based on “principles ofjustice”, that is, those rules that individuals would choose as the foundation of their society when they begin to engage in social cooperation. ’ To define what is just, Rawls reflects as to what 67 principles rational persons would agree on to further their own interests if their bargain was fair. An agreement is “fair” if the contractors are equally free and not advantaged or disadvantaged by natural or social circumstances. To identify principles that are fair in this sense, Rawls imagines an “original position” in which these circumstances are covered by a “veil of ignorance”, that is, the original contractors ignore both their place in society and their natural disposition. 672 As a consequence of this uncertainty, the veiled egoists will follow a “maximin” strategy: they will adopt those rules that will, in the worst case, still create the most tolerable outcome. 673 Thus, while being egoists, the original contractors will “agree on certain principles as if they were not  669  Cf Tesón, Humanitarian Intervention, supra note 45 at 79, 118; Joyner, supra note 2 at 719; MacFarlane & Khong, supra note 57 at 58. 670 See Pierre Laberge, “Humanitarian Intervention: Three Ethical Positions” (1995) 9 Ethics & International Affairs 15 at 18 (Synergy Blackwell Journals). 671 See John Rawis, A theory ofjustice, rev. ed. (Cambridge, MA: Harvard University Press, 1999) at 10-11. 672 Ibid. at 11. 673 Ibid. at 132-133 and n. 19.  88  674 They will establish principles that favor the least advantaged in society, since they egoists”. have to acknowledge the possibility of being in that position themselves. 675 While Rawls’ s social contract theory is initially formulated for issues of domestic affairs, it can also be applied to international relations. 676 The principles governing international relations are defined on a second stage of the hypothetical contract. 677 Again, the contractors are thought of as being under a veil of ignorance, which not only conceals the power and strength of their nation as compared with other nations, but also their own place as an individual within their respective 678 The original contractors are thus deprived of any information that would allow “the society. more fortunate among them to take advantage of their special situation.” 679 Tesón therefore deems it preferable not to label the hypothetical contractors as “state representatives”, since they 680 With a view to ultimately speak for themselves and not for the nation in which they will live. human protection, these individuals will acknowledge the existence of societies that are grossly unjust and will apply a maximin strategy to “make what is intolerable as tolerable as ’ 68 possible”. The Rawlsian-Tesonian model of a hypothetical social contract is a suitable tool to approach the relevant ethical principles concerning rights and duties of humanitarian protection. The metaphor of a “veil of ignorance” that prevents the original contractors from knowing their own society and place in that society can serve as a constant reminder of the diversity of viewpoints, requiring us to reflect on the positions and beliefs of people from different cultural and social backgrounds. This awareness of diversity may help to reduce the risk of subjective or ideological assumptions in the formulation of ethical principles. Eventually, however, the analyst will need to make a judgment as to what the choices of the hypothetical original contractors would be, 682 and the conclusions reached may still vary. 683 674  See Laberge, supra note 570 at 19. Ibid. 676 See Rawis, supra note 671 at 331; see also Tesón, Humanitarian Intervention, supra note 45 at 61. 677 See Rawis, ibid.; cf Laberge, supra note 570 at 18-19. 678 See Rawis, ibid. at 331-332. 679 Ibid at 332. 680 See TesOn, Humanitarian Intervention, supra note 45 at 65 (going even farther by submitting that the original contractors may not even have to perceive the world as being divided into spearate entities); but see Rawls, supra note 671 at 332 (explicitly using the term “representatives”). 681 See Laberge, supra note 570 at 21; see also Tesón, Humanitarian Intervention, supra note 45 at 66. 682 See Laberge, ibid. 683 While TesOn explicitly suggests that the original contractors would choose a “principle of limited intervention on behalf of human rights”, Humanitarian Intervention, supra note 45 at 66, Rawls proposes a principle of freedom from foreign intervention, and mentions the possibility of military intervention for the protection of liberties of other societies only in a subordinate clause, supra note 671 at 332, 334. 675  89  Again, the risk of subjectivism and ideologism looms. To further minimize this risk, I suggest that it is appropriate, at this point, to resort to a combination of logical reasoning and comparative empirical analysis, not unlike the approach suggested by Lepard. There may be some essential ethical values that are not seriously disputed or even disputable. For these values, which may be rare, it may not necessitate the imagination of a “veil of ignorance”, but even “non-veiled egoists”, including the most powerful individuals such as influential state representatives, will recognize them. Importantly, one such value should be the notion of human dignity. This suggestion may be supported by the finding of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in its judgment in FurundzUa that “[t]he general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law; indeed in modem times it has become of such paramount importance as to permeate the whole body of international law.” 684 Starting from such generally accepted values, certain conclusions and more specific principles may be deducted through compelling logical reasoning. 685 This method, however, will only suffice to identifr a small number of very basic principles. For any ethical question outside this core of generally held ethical convictions, I will need to develop my argument in a way that demonstrates an objective and logically compelling application of the Rawlsian-Tesonian contract model, and convincingly submit that the proposed principle would hypothetically be included in a contract made by individuals who work under a veil of ignorance that conceals their actual position in society. While the force and integrity of such a proposition ultimately depends on the strength of the argument, empirical observations that show a certain degree of support for a candidate principle can help to repel charges of subjectivism. Such support may come from a variety of sources, including the rhetoric of state representatives, UN declarations, judicial or scholarly pronouncements, religious or philosophical texts, declarations by NGO’s, or surveys on the positions of civil society. Notably, it has for instance been observed that the criteria on the use of military force set out by the ICISS are consistent not only with Christian ‘just war” theory, but also “with other major world religions and intellectual 686 traditions”. 684  Prosecutor v. Anto Furundija, IT-95- 17/1 -T, Judgment (10 December 1998) at para. 183 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), online: International Criminal Tribunal for the Former Yugoslavia <http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj98 121 0e.pdf. 685 Cf Aronofsky, supra note 236 at 317-318 (but note that Aronofsky’s suggestions concerning “reasonable inference” of certain duties and responsibilities directly apply to the identification of legal norms, and do not provide evidence of a methodology that would preclude subjective judgments). 686 See Evans, “Responsibility to Protect”, supra note 25 at 710.  90  On the basis of this philosophical foundation and methodological approach, I will address, in the following sections of this chapter, the ethics of a primary responsibility to protect of the host state, of a right of collective and unilateral humanitarian intervention, and of a responsibility of the international community to protect. While these discussions are predicated on the model established in the works of Rawls and Tesón, their outcomes need not necessarily be consistent with the conclusions drawn by these authors.  4.3 The Responsibility of States for the Protection of their Populations The first question that the R2P framework raises is whether a state has a responsibility to protect its population, as suggested by the ICISS. 687 From an ethical point of view, this question can most directly be addressed on the basis of the contractarian philosophy that has been chosen as the underlying conceptual framework for the definition of ethical principles. The basic idea of social contractarianism is that individuals conclude an agreement putting forth the fundamental principles governing their association when they enter into social 688 They negotiate not only the rights and duties of the individual members of this cooperation. society towards one another, but also conclude an agreement that defines the relationship between the citizens and the authorities which they establish to govern their political community and to ensure its civil order. 689 In forming a state, the individual contractors accept limitations on their personal rights and freedoms in order to receive certain services, which include notably protection through the state. 690 Accordingly, the government owes its position to a contract in which it undertakes to protect its citizens. ’ As Tesón formulates, governments are, “[f]rom an 69 ethical standpoint  [...] mere agents of the people.” 692 On the basis of social contractarianism, the  government of every state is thus under a responsibility to protect its citizens, including from 693 mass killings and other massive human rights violations. Empirical research also provides evidence for a widespread acceptance of the proposition that the responsibility of the host state to protect its population is an ethical imperative. Lepard’s analysis of legal materials as well as of religious and philosophical texts, for instance, leads him  687 688 689 690 691 692 693  Cf ICISS, Responsibility to Protect, supra note 9 at xi. See Rawis, supra note 671 at 10-11. Cf Joyner, supra note 2 at 719. See MacFarlane & Khong, supra note 57 at 58; Tesón, Humanitarian Intervention, supra note 45 at 118. See MacFarlane & Khong, ibid. at 59. See TesOn, Humanitarian Intervention, supra note 45 at 117. See Joyner, supra note 2 at 720.  91  to formulate a “trust theory of government”, according to which the institutions or individuals exercising governmental authority have “ethical duties to act as trustees for the benefit of the community members  [...]  694 In support of this and to respect and protect their human rights.”  trust theory of government, Lepard cites Article 56 of the UN Charter, the Universal Declaration of Human Rights, as well as the Hebrew Scriptures, Buddhist, Confucianist and Bahá’I writings, 695 Moreover, as the legal analysis of state practice on the the New Testament and the Quran. primary responsibility to protect will show, this idea has also found broad support in the statements by representatives of individual states and in the discussions of UN bodies. 696 Finally, even one of the harshest opponents of R2P in scholarly literature, Mohammed Ayoob, has admitted that the approach of understanding sovereignty as responsibility has “considerable moral force”. 697 It may thus confidently be concluded that the ethical proposition of states and their governments being responsible for the protection of their citizens cannot be undermined by claims of subjectivism or ideologism. In conclusion, states and their public authorities are under an ethical obligation to protect their citizens from massive human rights violations like large-scale killings and ethnic cleansing.  4.4 The Case for a Right of Humanitarian Intervention The ensuing question is whether, in cases where a state fails to fulfill this obligation to protect its population from large-scale killings or ethnic cleansing, other states are ethically justified in intervening with military force to stop these atrocities. A distinction will need to be drawn between intervention undertaken collectively through the United Nations and unilateral humanitarian intervention, as the latter raises particular ethical problems. I will therefore attempt to determine the ethics of humanitarian intervention in three steps: in this section, I am going to make an argument for military intervention as a means to avert massive human rights violations; at the end of these explanations, a prima facie case for humanitarian intervention will have been established. The subsequent two sections will then, in turn, address and critically appraise potential counter-arguments to humanitarian intervention in general and unilateral operations in particular. In these parts, I will submit that no argument is sufficiently strong to undermine the case for either collective or unilateral humanitarian intervention.  694  See Lepard, supra note 323 at 59. Ibid. at 59-62. 696 See Part 5.2.3, above. 697 See Ayoob, supra note 186 at 84.  92  4.4.1 Human Dignity and Human Rights The essential basis for the claim that humanitarian intervention can be legitimate is an ethical theory that places utmost importance on human rights. The central proposition is that every human being possesses an inherent dignity and certain human rights that all other individuals have to respect. 698 Every person has a moral worth qua person, 699 and is, as a member of the human family, “entitled to a basic respect and dignity”. ° In particular, all individuals have a 70 right to life and to physical security, since these “minimal protections of their physical existence” are necessary conditions for their free “physical, intellectual, and ethical endeavours”. ’ 70 Yet, it may be doubtful whether this recognition of the dignity and rights of human beings suffices to justify military intervention. This conclusion would first be challenged by advocates of moral relativism. Moral relativists suggest that rights possess meaning only within specific 702 A consequence of this theory is that social settings and change as soon as this setting changes. human rights are relevant only in domestic societies and cannot justify criticism of social practices in other societies, let alone military intervention. 703 The claim that there are no transboundary ethical values can, however, not be upheld. It appears that there is a hard core of truly universal human rights, and that no culture would defend practices like large-scale killings or ethnic cleansing as ethically justified. 704 Also, it seems to be a necessary consequence of the philosophical concept adopted in this essay that human dignity and basic human rights are guaranteed. Recognizing that different cultures may have different values and needs, the original contractors, who do not know what society they belong to, may be reluctant to agree on rights that some cultures do not accept. Nevertheless, as part of their maximin strategy, they will uphold human dignity and the right to life of every individual. 705 On the other hand, even if human dignity and human rights are acknowledged as universal ethical principles, this does not automatically mean that military intervention is ethically  698  See Lepard, supra note 323 at 53, 55, 89. Tesón uses this proposition against cultural relativism, Humanitarian Intervention, supra note 45 at 42-43. 700 See Lepard, supra note 323 at 45. 701 Ibid. at 62. 702 See only Mark Tushnet, “An essay on rights” (1984) 62:8 Tex. L. Rev. 1363 at 1363-1364 (HeinOnline). 703 See TesOn, Humanitarian Intervention, supra note 45 at 34. 704 Cf Singapore, Minister for Foreign Affairs Won Kan Seng, Statement at the Vienna World Conference on Human Rights, “The Real World of Human Rights” (16 June 1993), reprinted in James T.H. Tang, ed., Human Rights and International Relations in the Asia-Pacfic Region (London: Cassell, 1995) 242 at 244 (“Murder is 699  murder [...].“) 705  Rawls, supra note 671 at 53, goes farther for the domestic level: “each person is to have a right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others.”  93  justified. This challenge is supported by statements of state representatives at the Vienna World Conference on Human Rights, who denounced some of the most egregious human rights violations, but at the same time emphasized that these situations must be dealt with by cooperative rather than confrontational means. 706 It must be recalled, however, that the objections raised by state representatives may only indicate potential challenges to international intervention. In the end, the hypothetical perspective of the original contractors is decisive in determining the ethics of intervention. For them, humanitarian intervention may be the only “source of salvation” when their human dignity and rights are 707 As a result, they would, in principle, agree that humanitarian intervention should threatened. 708 This finding can empirically be supported by the interviews, commissioned by be condoned. the International Committee of the Red Cross, with civilians in conflict-torn societies, a majority of whom has welcomed the presence of foreign peacekeepers and called for more rather than less 709 external intervention. In conclusion, the values of human dignity and human rights strongly favor a right of humanitarian intervention. They establish at least a prima facie case that humanitarian intervention is ethically legitimate. A different conclusion may only need to be drawn eventually if humanitarian intervention would cause other difficulties that ultimately outweighed its benefits. 44.2 Specific Concepts Explaining the Legitimacy ofHumanitarian Intervention This general argument for the legitimacy of humanitarian intervention has been supported on the terms of particular philosophical concepts and theories. In a Kantian tradition, for instance, it has been phrased as a consequence of the “Golden Rule” combined with a principle that good deeds take precedence over good words. Other proponents have drawn analogies between the  706  See Myamriar, Minister for Foreign Affairs U Ohn Gyaw, Statement at the Vienna World Conference on Human Rights (15 June 1993), reprinted in James T.H. Tang, ed., Human Rights and International Relations in the Asia Pacflc Region (London: Cassell, 1995) 222 at 223; Thailand, Minister of Foreign Affairs Prasong Soonsiri, Statement at the Vienna World Conference on Human Rights (16 June 1993), reprinted in James T.H. Tang, ed., Human Rights and International Relations in the Asia-Pacfic Region (London: Cassell, 1995) 247 at 248; People’s Republic of China, Head of Delegation Liu Huaqiu, Statement at the Vienna World Conference on Human Rights (17 June 1993), reprinted in James T.H. Tang, ed., Human Rights and International Relations in the Asia-Pacflc Region (London: Cassell, 1995) 213 at 216. 707 See Laberge, supra note 570 at 20. 708 Ibid. 709 See Greenberg Research, The People on War Report: ICRC worldwide consultation on the rules ofwar (Geneva: International Committee of the Red Cross, 1999), online: Intemational Committee of the Red Cross <http://www.icrc.org/Web/Eng/siteengO .nsf7htmlall/p0758/$File/ICRC 002 075 8.PDF!Open> at xvi.  94  controversial forms of humanitarian intervention and cases in which outside intervention for the protection of human beings is accepted. The Kantian Golden Rule and the idea of the importance of good deeds are closely connected with the recognition that all individuals are entitled to basic respect. ° According to the Golden 71 Rule, “one should treat others as one would want to be treated”. 711 Moreover, in implementing ethical ideals, concrete action is demanded, that is, deeds take ethical precedence over mere good 712 These principles can also be based on a maximin strategy of the original contracors. In words. conjunction, they mandate that one offers the same assistance to people in need that one would want to receive in a comparable situation and can thus call for humanitarian intervention. Further support for the idea of ethically justified humanitarian intervention has been adduced on the basis of an analogy to the right of self-defence. As Article 51 UN Charter shows, a war in self-defence is not just morally accepted, but even explicitly recognized in international law. Unless one accepts the notion that states possess autonomous rights, 713 the justification of selfdefence can only be found in the rights of their citizens. A war in self-defence is justified because the government defends the rights of its people. 714 Then again, where basic human rights are concerned, “there is no substantial moral difference between the rights of citizens and those of foreigners”. 715 Consequently, intervention for the protection of foreigners from large-scale killings or ethnic cleansing can claim a similar ethical status. Another analogy has been drawn between the responsibilities of a government for its citizens and those of parents for their children. While this analogy was originally aimed at describing the special relationship between a state and its citizens in order to deny a right of foreign intervention, proponents of humanitarian intervention have turned it around to support the contrary position.  716  Gerard Elfstrom had formulated that the relationship between the  government and its citizens was similar to the “guardian-type relationship” between parents and their children in a domestic society. 717 The government represents the interests of its citizenry, and it is the citizens’ primary responsibility to take action if the government obviously  710  See Lepard, supra note 323 at 45, 50-52. Ibid. at 50. 712 Ibid. at52. 713 This notion will be discussed in detail and rejected below, see Part 4.5.1.1 714 See TesOn, Humanitarian Intervention, supra note 45 at 120. 715 Ibid 716 See Gerard Elfstrom, “On Dilemmas of Intervention” (1983) 93:4 Ethics 709 at 718 (JSTOR). 717 See Elfstrom, supra note 716 at 714. 711  95  718 In many cases, Elfstrom argues, foreign intervention constitutes a misinterprets their interests. 719 While this analogy may be properly chosen, it has been violation of the citizens’ autonomy. shown not to support the conclusion that humanitarian intervention should generally be ° With regard to the parent-child relationship, society is, in fact, 72 considered as illegitimate. widely held to have a right and even a duty of intervention to protect children against parental 721 In extreme cases, a parent may even be “overthrown’ [...j as a guardian of the mistreatment. abused child. 722 Thus, the parent-child analogy argues in favor of rather than against the justification of humanitarian intervention in certain cases. 4.4.3 Preliminary Conclusions on the Scope of Justfiable Intervention The foregoing considerations have established a prima facie argument in favor of humanitarian intervention, which can only be undermined by major conflicting concerns, which will be dealt with in the following sections. At the same time, due regard must be had to the fact that this case for humanitarian intervention is entirely grounded in the rights of those individuals whose protection it shall serve. It should therefore be qualified by a condition set out by Tesón, namely that the victims must welcome the intervention. 723 This condition takes into account that in certain cases victims of oppression may prefer a certain degree of tyrannical government over 724 A difficulty with this proposition is that it will not risky attempts to overthrow that regime. always be easy to determine the interests of the victims, particularly were they lack a chosen representative. Tesón suggests that it can be presumed that an oppressed people wishes to be 725 liberated, but still every effort must be made to determine their true will. As doubtful as the suggested presumption of a people’s wish to be liberated may be in cases of other, lesser forms of oppression, the quality of the threatened human rights violations in cases of large-scale killings or ethnic cleansing certainly justifies this assumption. In these cases, therefore, a prima facie argument for the ethical justification of humanitarian intervention has been established.  718  Ibid. at 715-716. Ibid. at 716-717. 720 See TesOn, Humanitarian Intervention, supra note 45 at 88. 721 See Anthony A. D’Amato, International Law: Process and Prospect (Dobbs Ferry, NY: Transnational, 1987) at 226; TesOn, Humanitarian Intervention, supra note 45 at 88. 722 See Tesón, ibid. at 88. 723 Ibid. at 126-129. 724 See Laberge, supra note 570 at 28. 725 See TesOn, Humanitarian Intervention, supra note 45 at 128. 719  96  4.5 General Challenges to the Legitimacy of Humanitarian Intervention Objections against humanitarian intervention in general may be grounded in two different foundations: in a notion of rights that are violated by the intervention, and in calculations regarding the undesirable consequences of intervention. 726 I will start by appraising different versions of rights theories that oppose humanitarian intervention as a matter of principle, and then discuss potential adverse consequences of granting a moral right of humanitarian intervention. 4.5.1 Humanitarian Intervention and Rights Theory A central classic argument against humanitarian intervention is that it violates rights of the target state. This argument is made in two different versions: on the basis of the assumption that states possess autonomous rights independently from individuals, and on the basis of rights that the states derive from their citizens. Moreover, military intervention for the protection of human beings confronts different forms of criticism that are based on rights of other individuals than those who are effectively rescued. 4.5.1.1 Rights of the Target Community Autonomous Rights of the State and Rights -  Derivedfrom Individuals In a state-oriented tradition of international legal discourse, states are considered as moral persons that are capable of forming their proper will, and possess certain rights qua states. 727 These rights are logically independent from the rights of their citizens. 728 Just as