Libya: A Multilateral Constitutional Moment?
Fordham University School of Law
April 1, 2012
American Journal of International Law, Vol. 106, pp. 298-316, 2012
Georgetown Public Law Research Paper No. 12-156
The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a responsibility. This significant normative moment demonstrates how far international law has traveled and also where it has not yet traveled.
The Libyan case was propelled by a mass movement in Libya, in the region, and ultimately in the international community, which mobilized Security Council action, relying on RtoP, to protect civilians in the face of brutality. In response to Libyan leader Muammar Qaddafi’s threat to slaughter his own people amid the “Arab Spring” of 2011, the Security Council authorized, inter alia, a limited military intervention to protect Libyan civilians, invoking RtoP. The assumption under RtoP is that individual states have primary responsibility for civilian protection and that, as a backstop, the international community has subsidiary responsibility for civilian protection by preventing and rapidly responding to genocide, war crimes, ethnic cleansing, and crimes against humanity. Military intervention pursuant to RtoP is, against that background, an option of last resort, when the other, more modest measures preferred as initial steps have failed (as discussed further in part II). Significantly, in the Libyan case, it was the Libyan people — as represented by an opposition movement (including numerous defecting government officials) that was demanding a more representative government — who called for Security Council intervention to mobilize an effective civilian-protection effort.
Number of Pages in PDF File: 20
Keywords: Libya, responsibility to protect, sovereignty, Security Council, human rights law, international law, international relations, civilian protection, United Nations, military intervention
JEL Classification: K00, K33, K39Accepted Paper Series
Date posted: October 26, 2012
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