OUVRAGE : R. Barnes, V.P. Tzevelekos (eds.), Beyond Responsibility to Protect: Generating Change in International Law

Richard BARNES, Vassilis P. TZEVELEKOS

The history of international law is replete with concepts that have generated change: individual criminal responsibility, common heritage of mankind and sustainable development to name but a few. These are concepts that have influenced the scope, structure and purpose of international law. This book explores the extent to which Responsibility to Protect (R2P) possesses the same transformative potential, showing how R2P shifts our understanding of both the potential and practice of international law.

Responsibility to Protect is both an ambitious and an ambiguous concept in international law. Ambiguity creates space for debate and the potential for legal development, but it may also generate misunderstanding, false expectations and uncertainty. Despite its ambiguity, R2P has quickly found a place within international legal texts. At the same time its ambiguity – or rather the tensions the concept generates – has also helped generate an enormous range of scholarship. This collection of essays presents a more fundamental critical evaluation of R2P, exploring how it interacts with existing concepts and values, and how this influences normative developments within international law. In particular, the essays explore the influence of R2P upon sovereignty as responsibility, the continued advance of positive human rights obligations and the safeguarding of international community interests.

TABLE OF CONTENTS

Foreword

Andre Nollkaemper

Acknowledgements
Table of Cases
List of Authors
Introduction

BEYOND RESPONSIBILITY TO PROTECT: CECI N’EST PAS UNE PIPE
Richard A. Barnes & Vassilis P. Tzevelekos

1. What Does Beyond R2P Mean?
2. The R2P of Sovereigns: How Innovative Is This?
3. R2P’s Transformative Power
4. The Book’s Architecture and Approach
5. Concluding Remarks

PART I. THE MORAL UNDERPINNINGS AND POLITICAL ENDS OF R2P

The Kantian Defence of Murder
Henry Jones

1. Introduction
2. Kantian Theories of Intervention
3. Conclusions

A ‘Responsibility to Democratise’? The ‘Responsibility to Protect’ in Light of Regime Change and the ‘Pro-Democratic’ Intervention Discourse
Markus P. Beham and Ralph R.A. Janik

1. Outline
2. Foundations
3. A ‘Responsibility to Democratise’?
4. Conclusion

Commentary: Between Kant and Al-Shabaab
Tony Ward

PART II. INTERNATIONAL INSTITUTIONS AND THEIR ROLE IN R2P

The Institutionalisation of the Responsibility to Protect
Nabil Hajjami

1. Introduction
2. The Institutionalisation of the R2P within the United Nations
3. The Institutionalisation of the R2P within the African Union
4. The Institutionalisation of the R2P within International Civil Society
5. Conclusion

The Responsibility Not to Veto Revisited. How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council
John Heieck

1. Introduction
2. Positing the Peremptory Nature of Genocide Prevention
3. From RN2V to DN2V
4. Conclusion

The EU and the Responsibility to Protect: The Case of Libya, Mali and Syria
Julia Schmidt

1. Introduction
2. The Development of R2P and the Role of Regional Actors
3. The EU within the R2P Frameworkbus
4. The EU and its Engagement in Libya, Mali and Syria
5. Conclusion

Commentary: International Institutions and their Role in R2P
Nigel D. White

PART III. DE FACTO REGIMES AND NON-STATE ACTORS WITHIN A STATE AND AS A STATE

De Facto Regimes and the Responsibility to Protect
Antal Berkes

1. De Facto Regimes as Subjects under the First Pillar of the R2P
2. De Facto Regimes as Objects under the Second and Th ird Pillars
3. Conclusions

‘Guilty’ Governments and ‘Legitimate’ Leadership: The Concept of ‘National Authorities’ under the R2P
Jennifer Dee Halbert

1. Introduction
2. The Scope of the R2P’s ‘National Authorities’ Concept
3. Substance of the R2P’s ‘National Authorities’ Concept
4. Significance of the R2P’s ‘National Authorities’ Concept
5. Conclusion

Commentary: Who Cares?: The Primary Bearer of the Responsibility to Protect
Hitoshi Nasu

1. The Principle of Non-Intervention
2. The Right to Self-Determination
3. Concluding Remarks

PART IV. R2P AND DUE DILLIGENCE REGARDING THE CONDUCT OF CORPORATIONS

On the Responsibility to Protect and the Business and Human Rights Agenda

Humberto Cantú Rivera

1. Introduction
2. The R2P, International Human Rights Law and Due Diligence
3. An Overlap between the R2P and the UN Business and Human Rights Project?
4. Concluding Thoughts

Tides of Change – The State, Business and the Human 
Kasey L. McCall-Smith

1. Introduction
2. The Role of States in Protecting Human Rights
3. Business and Human Rights
4. The Legal Framework for Putting Business Right
5. Closing the Gaps: Business as Duty-Bearers
6. Final Reflections

Commentary: The Responsibility to Protect and Non-State (Corporate) Actors – More of the Same?
Lucas Lixinski

1. Introduction
2. The Problem with R2P in a Corporate Context
3. What Does Due Diligence Add to the Equation?
4. What Does R2P Contribute to Due Diligence and Human Rights Obligations of Non-State Actors?
5. Responsibility of Non-State Actors Beyond Sovereignty
6. Concluding Remarks

PART V. THE INTERACTION BETWEEN R2P AND HUMANITARIAN LAW OBLIGATIONS TO PROTECT CIVILIAN POPULATIONS

The Responsibility to Protect Doctrine, and the Duty of the International Community to Reinforce International Humanitarian Law and its Protective Value for Civilian Populations Sophie Rondeau

1. Introduction: International Humanitarian Law and R2P as Necessary Allies
2. Positive Eff ect of IHL and its Rapport with Non-State Armed Groups: a Plea in Favour of a Broad Definition of R2P
3. States’ Obligations under the 1949 Geneva Conventions: the Nucleus of a System of Collective Responsibility
4. Conclusion

The Responsibility to Protect in Armed Conflict: A Step Forward for the Protection of Civilians?
Raphaël van Steenberghe

1. Introduction
2. Common and Distinct Features
3. Normative Impacts on IHL
4. Conclusion

Commentary: On the Intersection of the Responsibility to Protect, the Protection of Civilians and International Humanitarian Law in Contemporary Armed Conflicts
David Turns

1. General Remarks
2. The Confl ict in Eastern Ukraine
3. The Interventions in Iraq and Syria
4. Concluding Observations: from Jus ad Bellum to Jus in Bello and Back Again

PART VI. R2P AND INTERNATIONAL CRIMINAL LAW BEYOND THE FOUR R2P CRIMES

The Place of Aggression in the Responsibility to Protect Doctrine
Vito Todeschini

1. Introduction
2. The Crime of Aggression in International Law
3. Acts of Aggression and R2P
4. Conclusion

The Impact of the Responsibility to Protect on the Protection of Peacekeeping Missions under the Rome Statute of the International Criminal Court
Barbara Sonczyk

1. Introduction
2. Peacekeeping and the Use of Force
3. Protection Mandates and R2P
4. Protection of Peacekeeping Missions under IHL and the Rome Statute
5. Conclusions

Commentary: R2P and its Consequences for International Criminal Law: Crimes as a Justification for the Use of Force
Lindsay Moir

PART VII. R2P AND ITS POSSIBLE IMPACT ON THE LAW OF INTERNATIONAL RESPONSIBILITY

The ICJ Judgment in the Genocide Convention Case: Is R2P Drawing New Horizons for the Law on State Responsibility?
Ludovica Poli

1. Introduction
2. The ICJ’s Ruling on the Duty to Prevent Genocide and the Development of a New Rule of International Law Inspired by the R2P Rationale
3. The Duty to Prevent Genocide in the ICJ’s Decision and its Application ‘Beyond Borders’
4. Definition, Meaning and Role of Fault in the Law of State Responsibility
5. The Duty to Prevent Genocide ‘Beyond Borders’ as a Peculiar Obligation of Due Diligence Requiring a Special Notion of Fault
6. Due Diligence and the Implementation of R2P
7. Concluding Remarks

Responsibility to Protect as a Basis for ‘Judicial Humanitarian Intervention’
Tomoko Yamashita

1. Introduction: Using ‘Judicial Force’ to Encompass a Means to an End for R2P
2. Two Bases for Judicial Humanitarian Intervention
3. Pathways to JHI
4. Conclusion: Paradigm Shift from State-Oriented to Human-Oriented International Law

Military Commanders as Bystanders to International Crimes: A Responsibility to Protect?
Lenneke Sprik

1. Introduction
2. Failing to Prevent Genocide and its Legal Aftermath
3. Duty to Protect?
4. Criminalising the Commander’s Inaction?
5. Towards a Broader Concept of ‘Responsibility to Protect’?
6. Conclusions

Commentary: R2P as a Transforming and Transformative Concept in the Context of Responsibility as Liability
Elena Katselli

1. Introduction
2. Responsibility to Protect as ‘Third-State Responsibility’
3. The Responsibility of Individuals to Protect
4. R2P as Judicial Humanitarian Intervention
5. Conclusion

PART VIII. CONCLUDING OBSERVATIONS

R2P: An Inquiry into its Transformative Potential
Nicholas Tsagourias

1. Introduction
2. R2P’s Normative Trajectory
3. R2P’s Authority and Impact
4. Conclusion: R2P’s Transformative Potential

The Transformative Agendas of R2P Discourses in International Law
Jean d’Aspremont

1. Introduction
2. R2P’s Agendas
3. The Future of R2P in International Legal Scholarship: Functional and Methodological Awareness at High Altitude

Index

Richard BARNES, Vassilis P. TZEVELEKOS (eds.), Beyond Responsibility to Protect: Generating Change in International Law, Portland, Intersentia, 2016 (468 pp.)