UBC Theses and Dissertations
The responsibility to protect : legal rights and obligations to save humans from mass murder and ethnic cleansing Kolb, Andreas Stephan
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.
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