28/01/2013 Opinio Juris Blog Archive Could R2P Justify a No-Fly
Zone in the Absence of Security Council Approval?
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Could R2P Justify a No-Fly Zone in the Absence of
Security Council Approval?by Natalie Oman
The following is a guest post by Natalie Oman, an Assistant
Professor of Legal Studies at the University of Ontario
Institute of Technology in Canada.
As the Libyan rebels requests for an internationally-enforced
no-fly zone have multiplied and regional support has
coalesced among the Arab League, the GCC and some members of the
African Union, public hand-w ringing over the
lack of a Security Council resolution to legalize such action
has intensif ied. But Security Council authorization under
Chapter VII of the UN Charter is not the only available legal
basis for military action to close Libyan airspace.
As is w ell-know n, in 2001, the International Commission on
Intervention and State Sovereignty (ICISS) identif ied w hat it
described as a crystallizing principle of international law the
responsibility of states to protect the human security of
their citizens. According to the Commissions reading of evolving
customary international law , w hen states fail to fulf ill
this fundamental role, the responsibility to protect devolves
upon state-members of the international community.
Led by the United Nations, this principle has been developed as
a central plank in the current Secretary-Generals human
protection agenda. The interpretation of the responsibility to
protect championed by the UN (R2P) is narrow but deep,
holding that the principle applies only w hen threats to human
security take one of four forms: possible genocide, ethnic
cleansing, w ar crimes, or crimes against humanity. Key to the
R2P view is the assertion that the principle is a moral and
political one, w ith no legal character. It follow s that
military intervention for human protection purposes is only legal
on
this account w hen approved by the Security Council (or in rare
cases, presumably involving a Uniting for Peace
resolution, by the General Assembly).
But this isnt the w hole story, because the UNs interpretation
of the responsibility to protect is not the only one possible.
It is plausible not only to regard the responsibility to protect
as a legal principle in line w ith the ICISSs account, but also
to
understand it as possessing an over-determined legal character,
w ith its origin in multiple sources of international law .
There is evidence to suggest that the responsibility to protect
can be interpreted not only as a product of customary
international law , but perhaps more revealingly as having its
source in the general principles of law of civilized nations
identif ied in Article 38(1) of the Statute of the International
Court of Justice.
The means by w hich general principles of international law come
into being are under-explored in international legal
research and jurisprudence. But Giuseppe Sperduti, the late
Italian judge on the European Court of Human Rights,
outlined one process of international legal norm-creation that
clearly corresponds to this category of international legal
sources. In his Lezioni di diritto internazionale, Sperduti
described a process of legal recognition of the demands of
public conscience (riconoscimento giuridico di esigenze della
coscienza pubblica) that produces general rules of
international law . Sperdutis examples of such norms include the
prohibition against w ars of aggression and the slave
trade, as w ell as the protection of civilians and combatants
against inhuman w arfare. It is evident that the responsibility
to protect is emerging as another such norm.
But in order to understand the responsibility to protect as a
legal principle offering grounds for action independent of
Security Council authorization, another step is needed. The
prevailing R2P version of the principle not only depends upon
the assumption that the responsibility to protect is non-legal
in character; it also rests upon a common reading of Article
2(4) of the UN Charter w hich suggests that the Security Council
is the only body able to authorize the legal use of force
across state boundaries (except in circumstances of
self-defence). The Security Council is, of course, charged w
ith
primary responsibility for the maintenance of international
peace and security in Article 24(1) of the Charter, but it is
not
clear that this means that the Security Council possesses a
monopoly upon the law ful use of international force. While it
is w ithout doubt that all proponents of the responsibility to
protect regard a Security Council mandate as the most
unassailable form of authorization available, Article 2(4) can
be interpreted to allow for military intervention under certain
circumstances w ithout violation of Charter Article 2(4) in the
absence of a Security Council resolution.
This argument turns on the breadth of application of the jus
cogens prohibition on the use of force recognized in Article
2(4) of the Charter, and is outlined in recent w ork by Gelijen
Molier makes a plausible case for regarding highly
circumscribed violations of Article 2(4) such as those that
might be undertaken in compliance w ith the responsibility to
protect criteria for military intervention but w ithout Security
Council approval as not constituting aggression, and
therefore, not in violation of a jus cogens norm.
This, or a similar view of Article 2(4) is implied by the
original ICISS reading of the responsibility to protect, w hich,
like the
interpretation suggested here, leaves room for invocation of the
principle as a legal justif ication in cases that are w idely-
recognized as meeting all threshold criteria for intervention,
but are not supported by a resolution of the Security Council.
28/01/2013 Opinio Juris Blog Archive Could R2P Justify a No-Fly
Zone in the Absence of Security Council Approval?
opiniojuris.org/2011/03/17/could-rtop-justify-a-no-fly-zone-in-the-absence-of-security-council-approval/
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There is a pow erful and obvious disincentive to adopting the
interpretation of the responsibility to protect outlined here:
the fear that it w ill mark its proponents as apologists for
neo-imperialism. But taken in context, w ith all of the caveats
and
cautions that are integral to the principle itself, this
argument cannot be employed successfully to reinforce the
historical
hierarchy in international law betw een civilized and
uncivilized (memorialized as it is in the very w ording of the
ICJ
Statute in question), nor used as a f igleaf for imperial
geopolitics. Instead, this reading of the R2P uses the mechanism
of
law -creation underlying Article 38(1) to assert the agency of
non-state actors in international law and to acknow ledge a
polycentric alternative to the dominance of the P5 members of
the Security Council. It does so by recognizing the legal
normativity of the demands of public conscience, w here public
conscience is the product of an incomplete, imperfect
process of global opinion- and w ill-formation that involves
INGOs (such as the International Federation of Red Cross and
Red Crescent Societies and Mdcins sans Frontires), the media of
global reach, and emerging social media.
In the absence of Security Council membership rules or
decision-making procedures that reflect the key commitments of
global human rights culture and thus lack w hat Jrgen Habermas
terms procedural legitimacy the possibility of
invoking the general principle of the R2P as a legal justif
ication for military intervention that meets the stringent
threshold
criteria developed by the UN w ill remain open. The legitimacy
of such a move, how ever, w ill inevitably depend upon the
particular circumstances identif ied by the ICISS: the purpose,
the means, the exhaustion of other avenues of redress
against grievances, the proportionality of the riposte to the
initiating provocation, and the agency[/ies] of authorization.
March 17th, 2011 - 5:51 AM EDT | Trackback Link |
http://opiniojuris.org/2011/03/17/could-rtop-justif y -a-no-f ly
-zone-in-the-absence-of -security -council-approv al/
4 Responses
In 1999, NATO w ent to w ar against the Federal Republic of
Yugoslavia w ithout explicit prior UNSC approval. The
reasoning w ould be the same in this case, I w ould assume.
In response, Russia, China and Namibia jointly introduced a
proposal condemning the operation, but it w as voted dow n
12-3. This set the precedent for Ex post facto approval (lack of
prior approval on the UNSCs part did not mean military
action w as ipso facto illegitimate). Im sure most everyone here
know s this already.
But it looks like the UN is going to approve a resolution for
no-f ly zones over Libya anyw ay, for all the good it w ill do
to
take out 5 percent of Libyas military capability. At vast
expense.
3.17.2011
at 10:05 am EST
Liz
Its unclear to me (not being a law yer) that the jus cogens
prohibition against the use of force that I keep reading about
is any stronger than the demonstrably customary practice of
sending troops over borders (especially w hen national
interest can be linked to humanitarian concern). Thats my
historical take, and Im just a sporting amateur. Not being a
law yer, even I can understand exactly how there might be a body
of precedent available to support a use-of-force
prohibition w hile a corresponding volume of use-of-force
authorization is shallow er: as a practical matter, just uses
of force seldom are adjudicated. UNSC resolutions seem to me to
be a less than ideal legal guide. (Thats the
impression Im getting from Chestermans Just War or Just Peace,
anyw ay.)
Thanks for this post. I didnt think thered ever something here I
could speak to. The question w hether UNSC remains
the sole authorization is troubling, but interesting. My reading
of the R2P report seemed quite clear that the SCs
authority w as reaff irmed. I understood (erroneously?) that the
report w as only an expression of current thought about
the criteria w hich might trigger an intervention.
The degree a non-sanctioned use-of-force w hich nonetheless
meets the criteria R2P spells out is a question
demanding thought.
Thanks again.
3.17.2011
at 10:33 am EST
Brett Blake
