Introduction

The concept of the Responsibility to Protect (RtoP) is usually referred to as moral obligation or political concept. Yet, little reference is generally made to existing legal provisions. Surely, the concept is commendable in that it represents efforts to alleviate, if not prevent, human suffering worldwide. However, this chapter argues that based on the moral urge that requires governments to do ‘the right thing’, rather than founded on a legal obligation, the concept lacks rigour.

The report of the International Commission on Intervention and State Sovereignty (ICISS), defining the concept of RtoP for the first time, suggested that sovereignty nowadays should be understood as a form of responsibility of a State towards its citizens, including certain protective functions. United Nations (UN) Secretary General Ban Ki-moon recently confirmed this understanding, stating that ‘[s]overeignty confers responsibility, a responsibility to ensure protection of human beings from want, from war, and from repression’. The principle of sovereign equality of States is enshrined in Article 2(1) of the UN Charter, which, however, fails to mention any form of responsibility specifically. Sceptics point out that in the Westphalian sense of the word, the concept should first and foremost be understood as a form to safeguard the identity of a State, irrespective of its size, wealth or political order, to guarantee to the State unimpeded power over its internal matters. Accordingly, sovereignty would signify the unimpaired capacity to make authoritative decisions with regard to the population and territory of the State.

Much of the existing opposition to RtoP seems to be based on this strand of thought. These States have protested against a right for third States to interfere within their sovereign matters. As pointed out by Claes’ work on ‘RtoP rejectionism’, some States even oppose the concept entirely.

However, this chapter proposes that even if one were to subscribe to such a notion of sovereignty, it is clear that States have voluntarily surrendered parts of their otherwise unlimited power by signing certain treaties, thereby agreeing to be bound by their specific provisions and international law in general. It is crucial to focus on this aspect to counteract non-constructive, politically or morally motivated trends to the likes of RtoP, which potentially undermine existing legal tools.