Rethinking the Significance of the Responsibility to Protect Concept

Abstract

According to UN Secretary-General Ban Ki-moon, while responsibility to protect concept came of age in 2011, challenge facing international community remains that of transforming responsibility to protect concept from promise to or from words deeds. (1) In my remarks, I suggest that significance of responsibility to protect concept lies in its capacity to do reverse--that is, to transform practice promise, or deeds words. More specifically, responsibility to protect concept offers a framework for rationalizing and consolidating practices of international rule, many of which were developed by Dag Hammarskjold, second Secretary-General of United Nations, in early years of decolonization. I argue that normative significance of concept is obscured if we focus purely upon its relation to military intervention, whether authorized (as in case of Libya) or vetoed (as in case of Syria). PRACTICES OF PROTECTION: EXECUTIVE ACTION AND THE UN CHARTER The idea that United Nations has a responsibility to protect life in decolonized world began to take shape with two operations that were undertaken while Hammarskjold was in office: first being creation of United Nations Emergency Force (UNEF) in response to Suez crisis of 1956, and second establishment of UN Operation in Congo in 1960. (2) The techniques of rule developed under Hammarskjold's auspices during those early crises of decolonization included fact-finding, peacekeeping, strategic forms of technical assistance, and civilian administration. Those techniques have, of course, since expanded dramatically. Yet, as Hammarskjold recognized, there is little in Charter that suggests its authors envisaged creation of an international that could undertake such wide-ranging forms of action. In introduction to his 1961 Annual Report to General Assembly, Hammarskjold noted that although attention is given in UN Charter to elaborating the parliamentary aspects of Organization, little is said about arrangements. (3) To extent that there exists an explicit legal basis for these forms of action, Hammarskjold found it in provisions of Charter entrusting Secretary-General with execution of political at request of political organs, and in Article 99 providing that Secretary-General bring to attention of Security Council any matter which in his opinion may threaten maintenance of international peace and security. (4) Hammarskjold interpreted these provisions as giving Secretary-General a position of full political independence and a broad discretionary mandate to engage in such forms of fact-finding, preventive diplomacy, and other behind-the-scenes activity as were necessary to carry out his functions. Hammarskjold thus did not interpret limited attention in Charter to aspects of UN as a constraint on action. Rather, he considered that the functions and their form have been left largely to practice. (5) He argued forcefully that it was necessary to stop thinking of United Nations merely as a forum for static conference diplomacy and instead reimagine it as a dynamic instrument for executive action, undertaken on behalf of all members. (6) And he emphasized margin of confidence that must be left to those who will carry responsibility for putting decisions of political organs into effect. (7) International lawyers in 1950s and 60s were well aware of potentially radical effect of this expansion of international action. For example, Stephen Schwebel presciently commented: Perhaps it is not too much to suggest that, as development of great national civil services profoundly affected national histories of nineteenth and twentieth centuries, so growth of powers of international may in time influence future course of world affairs. …