Is it a bird or a plane?

Knowledge brokering13 Jun 2010Amaka Okany

It was a successful start to the conference sessions on Wednesday, with stimulating, thought-provoking presentations by the day’s speakers and equally interesting, incisive questions and comments from the audience. Among the recurrent issues in Wednesday’s (and also Thursday’s) discussions was the status of the R2P doctrine in international law. This question drew rather varied responses from the participants.

For example, in his opening presentation tracing the evolution of the R2P doctrine in international discourse, Prof. Edward Luck, the special adviser of the UN secretary general on the Responsibility to Protect, pointed out that the responsibility of States to act under the R2P was a moral imperative and not simply a political preference. He also voiced his opinion that the doctrine does not constitute a radical departure from existing norms but is rather based on established international law principles. By this, he undoubtedly meant the existing responsibilities of States, under human rights law and the Genocide Convention, to prevent violations of fundamental human rights such as the right to life.

Meanwhile, Sarah Sewall, of the Harvard Kennedy School, described it as a prescriptive as opposed to descriptive norm – prescriptive in the sense that it proposes a model of conduct rather than describes what can be considered as already existing law. Ambassador Ebenezer Appreku, of the Permanent Mission of Ghana to the UN, took yet another perspective when he considered the possibility that the adoption of the R2P doctrine by world governments in the 2005 World Summit Outcome document may constitute a case of the creation of instantaneous customary law – a concept that is well recognized in international law.

I would attribute the variations in these views to the multifaceted character of the R2P, which has the consequence that how one describes it depends on what aspect of it forms one’s primary focus. In my view, the R2P can best be described as incorporating existing legal concepts while going beyond them to advance ideas whose status as established international law may be doubted. In any case, whether or not it constitutes international law is not of primary importance, since law is but one means of achieving the humanitarian goals behind the emergence of the R2P.