VIETNAM LAWYERS ASSOCIATION THE XVIIth IADL CONGRESS INTERNATIONAL ASSOCIATION

OF DEMOCRATIC LAWYERS

The Responsibility to Protect as a Robust International Legal Order

YAMAGATA Hideo

After the end of the cold war, or after the start of the 21st century, the international
community is undergoing globalization. People move relatively easily from developing
countries to developed countries in order to get a job with better wage and labor
conditions. Companies begin operation beyond borders seeking cheap labor and lax
regulation of working condition. Information goes through the world in an instant through
the internet. At the same time, one event affects not only one region, but also the globe
and every creature living on the earth. Global warming, terrorist attacks, epidemic
diseases such as BSE and avian influenza are the bad side of the globalization.
Therefore globalization is calling for a robust legal order in the international community.
For example, Kofi Annan, the former Secretary-General of the United Nations, said that
“a robust international legal order ... is needed to define the ground rules of an emerging
global civilization.
Surely the responsibility to protect can be one of the rules of a robust legal order.
This is relatively new idea which is expected to tackle human sufferings of internal wars
caused by a failing or failed state. Kosovo offered an example of humanitarian
intervention by NATO allegedly to stop ethnic cleansing. Rwanda offered an opposite
example of omission of the international community irrespective of the similarity of the
situation with Kosovo. Rwanda was the case where the international intervention was
too little and too late, while Kosovo was the case where it was too much and too early.
A failing or failed state is believed to offer a shelter for terrorists acting in another
state and to make refugees flee to neighboring states. Thus the international community
needs a legal ground for justifying international intervention in a failing or failed state. It
is the responsibility to protect. Kofi Annan also underlined the international responsibility
by saying that “[i]n addition to the separate responsibilities each state bears towards its
own society, states are, collectively, the custodians of our common life on this planet.”
The responsibility to protect is getting popular among state officers and staff of
international organizations including the United Nations. It avoids the wording of
intervention, because the word intervention is associated with illegality in international
law and because intervention is not itself humanitarian. Independent International
Commission on Kosovo surveyed the issue of legality of intervention by NATO and
concluded that it was “illegal but legitimate” This conclusion illustrates eloquently the
contradiction between legal and political assessment. To solve it, the responsibility to
protect was advanced and supported by some elites of the government of states.
The responsibility to protect has gained support of the United States. The United
States initially did not favor such an innovative idea, because it might tie the hand of the
American Government when it wants to use force. However the Iraq war changed the
attitude of the Government of the United States towards the responsibility to protect. The
Iraq war was conducted by the United States and the United Kingdom relying on the
Security Council resolutions 678, 687 and 1414 on the basis of the alleged possession
of weapons of mass destruction. It is a fact that Iraq did not possess such WMDs, and
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VIETNAM LAWYERS ASSOCIATION THE XVIIth IADL CONGRESS INTERNATIONAL ASSOCIATION
OF DEMOCRATIC LAWYERS

therefore the United States lost legal justifications on the war. The only possible
justification left for the United States was responsibility to protect the Iraqi people and to
restore the democratic government. Jack Straw, then Foreign Secretary of the United
Kingdom, made a speech at the Labor Party Conference in Brighton on 28 September
2005, in which he stated for the justification of the Iraq war: “sovereign states
themselves and the nation of the world as a whole, have clear ‘responsibility to protect’
all citizens.”
The responsibility to protect is also supported by some African states. They are
usually an object of intervention by Western States and strongly opposed to intervention
by states. They may be, however, changing the idea of intervention. African continent is
sometimes discarded by the international community, even though some regions are in
the intra- or inter-state wars. Somalia is another example of late action of the
international community. In 2003, the African Union amended Article 4 (h) of the
Constitutive Act of 2000, which now provides that:

“the right of the Union to intervene in a Member State pursuant to a decision of the
Assembly in respect of grave circumstances, namely: war crimes, genocide and
crimes against humanity as well as a serious threat to legitimate order to restore
peace and stability to the Member State of the Union upon the recommendation of the
Peace and Security Council.”

The amendment has enlarged the scope of the application of the right to intervene of the
AU. It covers the intervention to restore the legitimate order of a State in addition to that
to halt war crimes, genocide and crimes against humanity. It implies that the
responsibility to protect may be enlarged to the responsibility to protect democracy.
However the responsibility to protect is fundamentally same as humanitarian
intervention because it acknowledges unilateral use of force by states to discharge such
responsibility. ICISS, the main advocator of the notion, claims that the Security Council
shall be used for authorization of collective responses including use of force, but also
suggests that it does not strike out the possibility that individual states can resort to force
in an extreme case of human catastrophe. The legality issue of such use of force for the
humanitarian purposes may be answered in the negative as in the report of the
Independent International Commission on Kosovo. Of course, the AU has a certain
power and duty to maintain the regional security and peace by way of intervention under
the Constitutive Act. However it is doubtful that such a right to intervention is recognized
as established in general international law. Several political documents of the United
Nations acknowledge the notion of responsibility to protect, but it is still de lege ferenda
and not lex lata. Many states are even now very cautious about it. International law is
built on state sovereignty. As far as the international community is decentralized and
consists of sovereign states, it should not be supposed lightly that the international
community has a right to intervene into a state.