The Responsibility to Protect and the Failures of the United Nations Security Council

P M Butchard

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509930814
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

What can be done if the United Nations Security Council fails to protect people from mass atrocities? At a time of inaction and political paralysis at the United Nations, this book explains the legality of alternative action beyond the Security Council. This book takes a fresh look at the responsibility to protect and offers new and compelling insights into the powers and limits of the UN Security Council. It argues that the Security Council's responsibility to maintain international peace and security, and its responsibility to protect, do not die with its own failures. Other actors can and must take up responsibility to save those in need. In a persuasive and detailed examination of the legal framework, this research identifies options for coercive measures to be taken beyond the Council that could be used to break the deadlock, including through the General Assembly and regional organisations. It provides a must-have resource for students, academics, and researchers on key principles of international law. It also offers insight for governments, policy-makers, and other international actors on how they can uphold their legal responsibilities, maintain peace and security, and prevent their failures from undermining the very existence of the UN itself.

V

The Tertiary Responsibility and Non-Forcible Measures

This chapter will apply the theory of a tertiary responsibility to protect to the legality of non-forcible, but still coercive, measures beyond the Security Council. Primarily, the chapter will be concerned with the use of ‘sanctions’ – defined broadly as encompassing economic sanctions such as asset freezes and trade restrictions, as well as other coercive methods.

To do so, this chapter will address the meaning and scope of the principle of non-intervention in customary international law. It finds that the principle of non-intervention does not prohibit the use of certain coercive methods, regardless of anyone’s preferred interpretation of ‘intervention’, so long as the intervention is not ‘essentially within the domestic jurisdiction’ of a State. It argues that any norm of international law allowing for coercive measures or sanctions is, by definition, not within such ‘domestic jurisdiction’ of a State, nor is it an intervention in the ‘internal or external affairs’ of that State because a State’s competences in those affairs are inherently ‘limited’ by the limitation of sovereignty that naturally occurs following the acceptance of, or being subject to, a rule of international law. Therefore, the book takes the position that measures provided for in international law itself may be legally permissible. The chapter specifically highlights the doctrine of countermeasures as allowing proportionate measures in response to prior breaches of international obligations by other States.

Addressing countermeasures, the limitations of the doctrine as a method of implementing a tertiary responsibility to protect are considered, particularly focusing on the question of whether actors not directly injured by a prior breach of an international obligation may take measures in response to breaches of obligations erga omnes, as relevant to the responsibility to protect. By addressing this alternative legal avenue beyond the Security Council, the book finds further legal space for the tertiary responsibility to protect to fill, providing more evidence of the concept’s viability and utility.

1.THE PRINCIPLE OF NON-INTERVENTION

The UN Charter recognises the principle of non-intervention in a limited form in Article 2(7), where it states:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

This principle applies to the United Nations, preventing it from acting within the ‘domestic jurisdiction’ of a State. A similar, all-encompassing, principle of non-intervention is also recognised in customary international law and applies to all States – as evidenced in several General Assembly Resolutions. For example, the Declaration on the Inadmissibility of Intervention, ‘[r]eaffirming the principle of non-intervention,’¹ insists that: ‘[D]irect intervention, subversion and all forms of indirect intervention are contrary to these principles and, consequently, constitute a violation of the Charter of the United Nations.’² And also declares:

No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.³

The Declaration on Friendly Relations introduces the general principle as: ‘The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter.’⁴

Importantly, the Declaration on Friendly Relations also reiterates that: ‘No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.’⁵ This declaration clarified that such interventions were a violation of international law,⁶ rather than simply being ‘condemned’ as they were in the earlier declaration. The ICJ has accepted that this declaration was representative of customary international law.⁷

During the drafting debates of the Declaration on Friendly Relations, there were opposing views as to whether the principle of non-intervention left room for coercive measures beyond the Security Council. A proposal by the United Kingdom included the ultimately prevailing phrase prohibiting ‘intervention in matters within the domestic jurisdiction of any other State’.⁸ Commentary to this proposal explained that ‘“intervention” connotes in general forcible or dictatorial interference’.⁹ Importantly, however, the UK’s commentary stressed that:

In considering the scope of ‘intervention’, it should be recognized that in an interdependent world, it is inevitable and desirable that States will he concerned with and will seek to influence the actions and policies of other States, and that the objective of international law is not to prevent such activity but rather to ensure that it is compatible with the sovereign equality of States and self-determination of their peoples.¹⁰

This difference between ‘intervention’ and legitimate ‘influence’ was addressed in the pursuing debates. There were suggestions that intervention could be practised by the processes of diplomacy, and where the coercive nature of an act of interference rendered that act an ‘intervention’.¹¹ On the other hand, one representative suggested that there was a difference between ‘permissible’ and ‘impermissible’ intervention.¹² This was supported by others, who suggested that they must be careful not to categorise as intervention action which would form part of normal diplomatic activities, and supported the idea that at least some forms of ‘pressure’ could be permissible.¹³

In the 1966 session, an attempt was made by some States to include the recognition of a freedom of States to seek to influence the policies and actions of other States ‘in accordance with international law and settled international practice’.¹⁴ This was argued as not allowing for intervention, but to allow necessary influence in accordance with the law, for example to try to encourage States to follow policies consistent with the maintenance of international peace and security or the fulfilment of human rights.¹⁵ However, this was seen by others as possibly legitimising intervention, and was therefore unacceptable, so the focus should therefore be on defining not when influence was lawful, but when influence was most certainly unlawful.¹⁶

When considering the meaning of ‘domestic jurisdiction’, it seemed generally accepted that this included both internal and external decisions of a State,¹⁷ and the only exception was where ‘such jurisdiction was restricted by obligations undertaken by one State towards other States’.¹⁸ This also implied that because of rights and obligations emerging in customary international law or treaty, ‘the domestic jurisdiction of States in the legal sense had been continually reduced as the real interest of States in the territory of others had been recognized and given legal protection’.¹⁹ While there was disagreement about how the inclusion of a reference to prohibiting intervention in the ‘external affairs’ of a State might have unduly restricted legitimate interference on the international plain,²⁰ this did not seem to be fully settled after two subsequent sessions of the Special Committee did not touch upon the principle due to a lack of time,²¹ and there were no detailed recorded discussions of the principle in the final negotiations of the Declaration on Friendly Relations.²²

These fundamental questions continue to be debated in the academic literature. Early work by Thomas and Thomas detailed the stark contrasts in academic opinion.²³ They highlight the divide between arguments that suggest even the slightest interference in a State’s affairs, such as a mere correspondence or criticism regarding a State’s actions, could amount to unlawful intervention, compared to arguments in favour of a strict application of the principle to only forcible and dictatorial interference.²⁴

Thomas and Thomas reject the notion that a State could only be subject to pressure or coercion through the use of force, believing the approach to be too narrow.²⁵ According to their view, actions taken by a State to ‘impose its will’ upon another, with attempts to ensure compliance with this will, are an intervention.²⁶ They refer to a State’s ‘supreme authority to control all persons and things within its boundaries subject only to rules of general international law and obligations assumed by international treaty’.²⁷ They thus seem to accept the underlying exceptio...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• I. A Warning to Humanity
• II. The Responsibility to Protect
• III. The Legal Responsibilities of the United Nations Security Council
• IV. The Tertiary Responsibility and Forcible Measures
• V. The Tertiary Responsibility and Non-Forcible Measures
• VI. Implementing the Tertiary Responsibility to Protect
• VII. General Conclusions
• Index
• Copyright Page