The R2P concept: a legal vacuum?

Peace & Security10 Jun 2010Hanne Cuyckens

Many commentators tend to argue that paragraphs 138 and 139 of the 2005 World Summit Outcome document have created a new legal obligation for States and the international community to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Indeed, R2P is thought to constitute a new international legal norm – some even contend of customary value – which would be distinct from pre-existing legal obligations.

It seems difficult to sustain that the concept of R2P, as accepted by the international community of States in the 2005 Outcome document, is a new legal norm, however. This was confirmed by current UN secretary-general Ban Ki-moon in his 2009 report on implementing the responsibility to protect. In this report, he explicitly stated that ‘the provisions of paragraphs 138 and 139 of the Summit Outcome are firmly anchored in well-established principles of international law’. These ‘firm anchors’ that the secretary-general refers to can be traced back to various branches of international law, ranging from human rights law and international criminal law to the rules on State responsibility.

The present notion of R2P has been stripped of its main innovative legal features, i.e. the legal enforceability of the responsibility to protect and the right to unilateral intervention in cases where the UN Security Council fails to act. While conceptually relevant, the concept of R2P has thus evolved from a strong alternative to humanitarian interventions to a largely political notion.

These arguments will be further developed in: Cuyckens, H, P.H. De Man, and Wouters, J. (forthcoming) The Responsibility to Prevent: on the assumed legal nature of R2P and its relationship with conflict prevention.