Toward a Legal Theory on the Responsibility to Protect
University of Michigan Law School
Yale Journal of International Law 39, no. 2 (2014): 247-80
U of Michigan Public Law Research Paper
The idea of the “responsibility to protect” has received enormous attention in recent years — so much attention that it now goes simply by R2P. R2P posits that, when a state fails to protect its population from mass atrocities, the broader international community should step in to help. The vision here is of outside states banding together and doing everything possible to protect the at-risk population. But for all the attention that this vision receives, its effect on international law or on the ultimate goal of protecting people from atrocities is unclear.
This Article critiques that vision and offers an alternative. I argue that R2P is unlikely to become legally operative so long as it presents a single, daunting duty that falls either on all outside states simultaneously or on states’ collective organizations, like the United Nations. Instead, R2P should present a bundle of more discrete duties, and responsibility for each duty should attach to specific outside states at a time. In particular, responsibility should attach to states on the basis of their own conduct or relationships. This alternative vision is preferable to the now dominant one because this vision builds on existing international law and follows the law’s current trajectory. It thus has the potential to gain legal traction going forward.
Number of Pages in PDF File: 34
Keywords: R2P, responsibility to protect, international law, state responsibility, shared responsibility, atrocities
JEL Classification: K3
Date posted: September 3, 2014 ; Last revised: November 17, 2014