1 See generally Amerasinghe, C. F., The Conundrum of Recourse to Force—To Protect Persons, 3 Int’l Orgs. L. Rev. 7 (2006)Google Scholar; Laurence Boisson, de Chazournes & Luigi, Condorelli, De la “responsabilité deprotéger” ou d’une nouvelle parure pour une notion déjà bien établie, 110 Revue Générale De Droit International Public 11 (2006)Google Scholar; Gareth, Evans, The Responsibility to Protect and the Duty to Prevent, 98 ASIL Proc. 77 (2004)Google Scholar; Peter, Hilpold, The Duty to Protect and the Reform of the United Nations—A New Step in the Development of International Law? 2006 Max Planck Un Y.B. 35 Google Scholar; Gelijn, Molier, Humanitarian Intervention and the Responsibility to Protect After 9/11, 53 Neth. Int’l L. Rev. 37 (2006)Google Scholar; Thomas G., Weiss, The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era, 35 Security Dialogue 135 (2004)Google Scholar; Paul D., Williams & Alex J., Bellamy, The Responsibility to Protect and the Crisis in Darfur, 36 Security Dialogue 27 (2005)Google Scholar; Gareth, Evans & Mohamed, Sahnoun, The Responsibility to Protect, Foreign Aff., Nov./Dec. 2002, at 99 Google Scholar; Alex J., Bellamy, Preventing Future Kosovos and Future Rwandas: The Responsibility To Protect After The 2005 World Summit (Carnegie Council, Policy Brief 2006), at <http://www.cceia.org/media/Bellamy_Paper.pdf>>Google Scholar. For comprehensive documentation on the subject, see Responsibility to Protect—Engaging Civil Society, at <http://www.responsibilitytoprotect.org>.

2 International Commission on Intervention and State Sovereignty, The Responsibility Protect, at VIII (2001), available at <http://www.iciss.ca/report–en.asp> [hereinafter Responsibility To Protect].

3 A More Secure World: Our Shared Responsibility, Report of the High–Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, at 56–57, para. 201 (2004), available at <http://www.un.org/secureworld/report.pdf> (emphasis added) [hereinafter High–Level Panel Report].

4 Id., paras. 202, 201.

5 In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary–General, UN Doc. A/59/2005, paras. 16–22 (2005), available at <http://www.un.org/largerfreedom/contents.htm> [hereinafter Report of the Secretary–General].

6 Id., para. 135 (citing High–Level Panel Report, supra note 3, para. 203).

7 2005 World Summit Outcome, GA Res. 60/1, paras. 138–39 (Oct. 24, 2005) [hereinafter Outcome Document].

8 Id., para. 138.

9 Id., para. 139.

10 See SC Res. 1674, para. 4 (Apr. 28, 2006) (“reaffim[ing] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”).

11 Wikipedia Free Encyclopedia, Responsibility to Protect (Dec. 6, 2006), at <http://en.wikipedia.org/wiki/Responsibility_to_protect> (emphasis added).

12 The Outcome Document is qualified by some as a “milestone in the relationship between sovereignty and human rights.” See the abstract dated July 28, 2006, of the online version of Alex J., Bellamy, Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit, 20 Ethics & Int’l Aff. 143 (2006), at <http://www.cceia.org/resources/journal/20_2/articles/5384.html>Google Scholar, in which Bellamy’s article is described as taking a different view.

13 Responsibility to Protect, supra note 2, ch. 2.

14 Id., para. 2.14.

15 For a survey of the classic understanding of sources of law, see 1L. Oppenheim, International Law 22–23 (Hersch Lauterpacht ed., 6th ed. 1947).

16 Law–declaring resolutions of the General Assembly, for example, may assist in the determination or interpretation of international law or even constitute evidence of international custom. Scholars differ, however, as to whether “law–declaring resolutions” of the Assembly can create law beyond their contributory role in the formation of customary international law. See generally Georges, Abi–Saab, Les RÉsolutions dans la formation du droit international du developpement 9 (1971)Google Scholar. For doubts, see Hartmut, Hillgenberg, A Fresh Look at Soft Law, 10 Eur. J. Int’l L. 499, 514 (1999)Google Scholar.

17 The assessment of “soft law” may be based on an analysis of such sources. See generally Alan, Boyle, Soft Law in International Law–Making, in International Law 141 (Malcolm D., Evans ed., 2006)Google Scholar.

18 The Institute of International Law found that principles and rules proclaimed in law–developing resolutions “may influence State practice, or initiate a new practice that constitutes an ingredient of new customary law,” or “contribute to the consolidation of State practice, or to the formation of the opinio juris communis. “Institut de droit international, The Elaboration of General Multilateral Conventions and of Non–Contractual Instruments Having a Normative Function or Objective, Res. II, conclusion 22 (Cairo Conference, 1987), available at <http://www.idi–iil.org/idiE/resolutionsE/1987_caire_02_en.PDF>.

19 See Boisson de Chazournes & Condorelli, supra note 1, at 11–18; Molier, supra note 1, at 47–52.

20 See Molier, supra note 1, at 37–62.

21 Responsibility to Protect, supra note 2, at VII (quoting Secretary–General Kofi A. Annan, Millennium Report and Annual Report on the Work of the Organization, UN Docs. A/54/2000 & A/55/1 (2000), at 48 & para. 37, respectively).

22 Id., para. 2.14.

23 The commission found that the expressions “humanitarian intervention” and “right to intervene,” which had been used in “past debates,” did not “help to carry the debate forward.” Id., para. 2.4.

24 Id., para. 2.29.

25 See generally Simon, Chesterman, Just War Or Just Peace: Humanitarian Intervention and International Law 228 (2001)Google ScholarPubMed; Antonio, Cassese, Ex Iniuria lus Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? 10 Eur. J. Int’l L. 23 (1999)Google Scholar; Antonio, Cassese, A Follow–up: Forcible Humanitarian Countermeasures and Opinio Necessitatis, 10 Eur. J. Int’l L. 791 Google Scholar; Ralph, Zacklin, Beyond Kosovo: The United Nations and Humanitarian Intervention, 41 Va. J. Int’l L. 936 (2001)Google Scholar.

26 Responsibility To Protect, supra note 2, para. 2.29. The commission was critical of the notion of “humanitarian intervention.” It believed that the “humanitarian” argument could be used to disguise motives for an intervention and that it would tend “to prejudge the very question in issue—that is, whether the intervention is in fact defensible.” The commission also abandoned the term in response to opposition by humanitarian agencies and organizations to the “militarization” of the word “humanitarian,” which they argued could not be ascribed “to any kind of military action.” Id., para. 1.40.

27 One of the particularities of the report is that it formulated specific “threshold” criteria for “military intervention for human protection purposes.” Id., para. 4.19. Military intervention may be

justified in two broad sets of circumstances, namely in order to halt or avert:

Id. (emphasis omitted).

28 Id., para. 1.40.

29 Id., para. 2.30.

30 Id., para. 2.29.

31 Id., pars.. 5.1.

32 Id., para. 2.15.

33 Id.

34 Id., para. 2.31.

35 Id.

36 Id., para. 6.28.

37 Id., para. 6.37.

38 Id.

39 Id., para. 4.32.

40 Id., paras. 4.18, 4.32–.48.

41 High–Level Panel Report, supra note 3, paras. 29–30.

42 Id., paras. 199–203.

43 Id., para. 201 (“[S]overeign Governments have the primary responsibility to protect their own citizens from . . . catastrophes . . . “ ) .

44 Id.

45 The ICJ reaffirmed in the Barcelona Traction case that obligations erga omnes “derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, 32, para. 34 (Feb. 5) [hereinafter Barcelona Traction].

46 This understanding was challenged by the United States in the context of the drafting of the Outcome Document. The U.S. representative to the United Nations addressed this point in a letter to the UN member states dated August 30, 2005, noting that “the responsibility of the other countries in the international community is not of the same character as the responsibility of the host, and we thus want to avoid formulations that suggest that the other countries are inheriting the same responsibility that the host state has.” Letter from Ambassador Bolton to UN Member States Conveying U.S. Amendments to the Draft Outcome Document Being Prepared for the High Level EventonResponsibilitytoProtect,at2 (Aug. 30, 2005), available at <http://www.responsibilitytoprotect.org/index.php/pages/2>, <http://www.un.int/usa/reform–un–jrb–ltr–protect–8–05.pdf> [hereinafter Bolton Letter].

47 High–Level Panel Report, supra note 3, para. 202.

48 This point was also made in paragraph 198 of the report, where the panel stressed that “[t]he task is not to find alternatives to the Security Council as a source of authority but to make the Council work better than it has.”

49 High–Level Panel Report, supra note 3, para. 256.

50 Id., para. 196. There the panel stated:

51 Id., para. 272. The panel stated that “[a]uthorization from the Security Council should in all cases be sought for regional operations.” However, the panel left a small backdoor open by recognizing that “in some urgent situations” such an “authorization may be sought after such operations have commenced.” Id. (emphasis added).

52 Id., para. 203 (“exercisable by the Security Council authorizing military intervention as a last resort”). As regards the Commission on State Sovereignty and Intervention, see text at notes 36–40.

53 For a full discussion, see the contributions in Future Implications of the Iraq Conflict: Selections from the American Journal of International Law(ASIL 2004).

54 High–Level Panel Report, supra note 3, para. 207.

55 Id., para. 204.

56 Id., para. 207.

57 Id., para. 209.

58 Report of the Secretary–General, supra note 5, para. 135.

59 Id., para. 133.

60 Id, pts. 1(C), II(A), respectively.

61 Id., para. 135 (“[I]f national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community . . . “).

62 Id., para. 135 (“When such methods appear insufficient, the Security Council may out of necessity decide to take action under the Charter of the United Nations, including enforcement action . . .” ) .

63 Id., para. 126.

64 Id.

65 For a survey of the statements of Algeria, Cuba, Egypt, Iran, Pakistan, Russia, and Venezuela, see Responsibility to Protect—Engaging Civil Society, Chart on Government Positions (Aug. 11, 2005), at <http://www.responsibilitytoprotect.org/index.php/pages/2>.

66 Bolton Letter, supra note 46, at 2.

67 Id. at 3 (enclosure entitled “United States Proposals: Responsibility to Protect”).

68 Outcome Document, supra note 7, para. 138.

69 Id.

70 Id.

71 Id., para. 139.

72 Id. (“In this context, we are prepared to take collective action . . .” (emphasis added)).

73 Id.

74 See text at notes 43–57 supra.

75 See Bolton Letter, supra note 46, at 1.

76 Id. at 2.

77 The Outcome Document states:

Outcome Document, supra note 7, para. 139 (emphasis added); see also Amerasinghe, supra note 1, at 47 (“[I]t would seem that the resolution does not rule out humanitarian intervention by other States as a means of discharging this responsibility.”).

78 Outcome Document, supra note 7, para. 139.

79 See, for example, the statement of the delegate of the Russian Federation at the Security Council’s open debate on December 9, 2005, on the protection of civilians in armed conflict:

UN Doc. S/PV.5319, at 19 (Dec. 9, 2005) (statement of Mr. Rogachev), reprinted in Responsibility to Protect— Engaging Civil Society, Excerpted Statements on the Responsibility to Protect at the Security Council Open Debate on the Protection of Civilians in Armed Conflict, at <http://www.responsibilitytoprotect.org>.

80 Outcome Document, supra note 7, para. 139 (emphasis added).

81 Id., para. 97–105. For a closer survey, see GA Res. 60/180 (Dec. 30, 2005) (Peacebuilding Commission).

82 See text at notes 22–24 supra. The concept of responsibility to protect builds on earlier works in peace research, notably Francis M. Deng Et Al., Sovereignty As Responsibility: Conflict Management In Africa (1996).

83 This understanding is reflected in Grotius’s conception of things that are public and common to all men. See Hugo Grotius, De Mare Liberum, ch. V (Ralph Deman Magoffin trans., Oxford Univ. Press 1916) (1609); Hugo Grotius, Dejure Belli Ac Pacis, bk. II, ch. 2 (Francis W. Kelsey trans., Clarendon Press 1925) (1625); see generally Hersch, Lauterpacht, The Grotian Tradition in International Law, 1946 Brit. Y.B. Int’l L. 1, 27 Google Scholar.

84 Grotius, De Jure Belli Ac Pacis, supra note 83, bk. II, ch. XXV, pt. VIII(2), where Grotius states that if a ruler “should inflict upon his subjects such treatment as no one is warranted in inflicting, the exercise of the right vested in human society is not precluded.” According to Lauterpacht, “[T]his is the first authoritative statement of the principle of humanitarian intervention—the principle that the exclusiveness of domestic jurisdiction stops where outrage upon humanity begins.” Lauterpacht, supra note 83, at 46.

85 See, for example, John, Locke, The Second Treatise of Government, ch. XIII, §149, in Two Treatises of Government (Peter, Laslett ed., Cambridge University Press 1988 Google Scholar) (1690), where he states:

86 See 1 Georg Schwarzenberger, International Law 273 (3d ed. 1957).

87 A good example is the Peace Treaty of Versailles, in which Poland agreed to “protect the interests of inhabitants of Poland who differ from the majority of the population in race, language or religion.” Treaty of Peace, Art. 93, June 28, 1919, Allied & Associated Powers–Ger., 11 Martens (ser.3) 323, 225 Consol. TS 188. The Versailles Treaty was complemented by a Treaty of Minorities of June 28, 1919, between the Principal Allied and Associated Powers and Poland, 112 Brit. Foreign & St. Papers 232.

88 At the beginning of the twentieth century, claims commissions invoked the minimum standard as a benchmark in cases where states failed to protect the life, property, or human dignity of foreigners. Schwarzenberger, supra note 86, at 201.

89 This bond was stressed more than half a century ago by the Permanent Court of International Justice in the Mavrommatis case, where the Court held that” [b]y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting . . . its right to ensure, in the person of its subjects, respect for the rules of international law.” Mavrommatis Palestine Concessions, 1924 PCIJ (ser. A) No. 2, at 12 (Aug. 30).

90 In the award, it is pointed out that “[t]erritorial sovereignty . . . . has as corollary a duty,” namely, the “obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.” Island of Palmas, 2 R. Int’l Arb. Awards 829, 839 (1928). In 1949 this understanding was reaffirmed in Article 14 of the Draft Declaration on the Rights and Duties of States, which provided that “[e]very State has the duty to conduct its relations with other States in accordance . . . with the principle that the sovereignty of each State is subject to the supremacy of international law.” International Law Commission [ILC], Draft Declaration on Rights and Duties of States, Art. 14, GA Res. 375(IV), annex (Dec. 6, 1949), available at <http://www.un.org/law/ilc/>.

91 The subsequent rise of regional and universal human rights instruments provided evidence that human rights could no longer be considered as “internal affairs” that fall “essentially within the domestic jurisdiction of any State” within the meaning of Article 2(7) of the Charter.

92 Kofi, Annan, UN secretary–general, Intervention, 35th Annual Ditchley Foundation Lecture (June 26, 1998)Google Scholar, available at <http://www.ditchley.co.uk/page/173/lecture–xxxv.htm>.

93 See Oppenheim, supra note 15, at 280 (“The Charter of the United Nations, in recognising the promotion of respect for fundamental human rights and freedoms as one of the principal objects of the Organisation, marks a further step in the direction of elevating the principle of humanitarian intervention to a basic rule of organised international society.” (footnote omitted)).

94 Barcelona Traction, 1970 ICJ Rep. 3, 32, para. 33 (Feb. 5).

95 Articles on Responsibility of States for Internationally Wrongful Acts, pt. II, ch. 3, in Report of the International Law Commission on the Work of Its Fifty–third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in James, Crawford, The International Law Commission’s Articles On State Responsibility: Introduction, Text and Commentaries (2002)Google Scholar [hereinafter Articles on State Responsibility].

96 Oppenheim, supra note 15, at 280. This conclusion is preceded by the following reasoning: “There is general agreement that, by virtue of its personal and territorial supremacy, a State can treat its own nationals according to discretion. But there is a substantial body of opinion and of practice in support of the view that there are limits to that discretion” (and that intervention is permissible when the state denies its nationals their fundamental human rights). Id. at 279–80 (footnotes omitted).

97 Le Devoir D’Ingérence (Mario Bettati & Bernard Kouchner eds., 1987); Olivier, Corten & Pierre, Klein, Droit D’Ingérence Ou Obligation De Réaction? (1992)Google Scholar.

98 See generally Daniel, Thürer, Der zerfallene Staat unddas Völkerrecht, 74 Die Friedens–Warte 275 (1999)Google Scholar.

99 Note, however, that small and some large states (e.g., China and Russia) have strong reservations about unauthorized humanitarian intervention.

100 For example, Fernando R., Tesón, Humanitarian Intervention: An Inquiry Into Law and Morality 217 (3d rev. ed. 2005)Google Scholar, states:

101 See Constitutive Act of the African Union, Art. 4(j), (h), July 11, 2002, OAU Doc. CAB/LEG/23.15, available at <http://www.africa–union.org> [hereinafter AU Web site].

102 See generally Ben, Kioko, The Right of Intervention Under the African Union’s Constitutive Act: From Non–interference to Non–intervention, 85 Int’l Rev. Red Cross 807 (2003)Google Scholar.

103 Constitutive Act of the African Union, supra note 101, Art. 4(h). The bracketed words regarding “a serious threat to legitimate order” are added to this provision by Article 4 of the Protocol on Amendments to the Constitutive Act of the African Union, Feb. 3, 2003, available at AU Web site, supra note 101. This Protocol has not yet entered into force. The modalities of the right to intervene are set forth in the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, July 9, 2002, available at AU Web site, supra. This Protocol balances the principles of “non–interference” and respect “for the sovereignty and territorial integrity of Member States” with “respect for the rule of law, fundamental human rights and freedoms, the sanctity of human life and international humanitarian law.” See id., Art. 4.

104 An Agenda For Peace—Preventive Diplomacy, Peacemaking, and Peace–Keeping, Report of the Secretary–General, at 2, para. 5, UN Doc. A/47/277–S/24111 (1992), UN Sales No. E.95.I.15 (1995).

105 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305–S/2000/809.

106 No Exit Without Strategy: Security Council Decision–Making and the Closure or Transition of United Nations Peacekeeping Operations, Report of the Secretary–General, para. 26, UN Doc. S/2001/394. In this report, the secretary–general emphasized that “[m]ission closure, as a result of the failure of the parties to abide by their agreements, does not represent an end to the responsibility of either the United Nations system or the Security Council, nor need it signal an end to the Council’s involvement.” The report went on to recommend that, in such situations, Council members should “individually and collectively” consider “what forms of leverage are available to address the conflict.” Id.

107 See Articles on State Responsibility, supra note 95, Arts. 42(b) (“injured State”), 48(1) (“State other than injured State”).

l08 Id., Art.48(2)(a), (b).

109 Id., Arts. 49–53. Countermeasures may be taken by “injured States.”

110 Id., Art. 40(2).

111 Id., Art. 40.

112 Id., Art. 41 Commentary, para. (3).

113 Id., para. (2).

114 Id., para. (3).

115 The prohibition against genocide is recognized as a peremptory norm of international law. Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility, para. 64 (Int’l Ct. Justice Feb. 3, 2006). This case is more difficult to make with respect to crimes against humanity and war crimes, which comprise a large bundle of individual crimes whose status of recognition varies.

116 Outcome Document, supra note 7, paras. 138, 139.

117 Responsibility to Protect, supra note 2, para. 2.30; High–Level Panel Report, supra note 3, para. 201; Report of the Secretary–General, supra note 5, para. 135; Outcome Document, supra note 7, para. 138.

118 One may observe here a certain structural parallel to the complementarity regime of the International Criminal Court under Article 17 of the Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, available at <http://www.un.org/law/ilc/>.

119 See Responsibility to Protect, supra note 2, para. 2.30.

120 Responsibility to protect was invoked in particular in the context of the adoption of Security Council Resolution 1556 on July 30, 2004. For a survey of statements following its adoption, see UN Doc. S/PV.5015 (July 30, 2004). See generally Alex J., Bellamy, Responsibility to Protector Trojan Horse? The Crisis in Darfur and Humanitarian Intervention After Iraq, 19 Ethics & Int’L Aff. 31 (2005)Google Scholar.

121 The ILC Articles on State Responsibility deal with omissions only briefly in the context of breaches of a “composite act.” Articles on State Responsibility, supra note 95, Art. 15. No specific consequences are attached to a failure to act under chapter I of Part II: Content of the International Responsibility of a State.

122 See generally Responsibility of International Organizations, in International Law Commission, Report on the Work of Its 56th Session, ch. V, UN GAOR, 59th Sess., Supp. No. 10, at 94, UN Doc. A/59/10 (2004).

123 See, for example, the statements by the UK representative and the representative of the Philippines after the adoption of Security Council Resolution 1556 (2004). UN Doc. S/PV.5015, supra note 120, at 5, 10.

124 See, for example, Article 2, in conjunction with Article 6 (right to life) and Article 9 (liberty and security of persons), of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; and Article 1, in conjunction with Article 2 (right to life), and Article 5 (liberty and security of persons), of the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221.

125 This process is fostered by the enactment of implementation legislation under the Rome Statute of the International Criminal Court, supra note 118. See generally Jann K., Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l Crim. Just. 86 (2003)Google Scholar. Paragraph 138 of the Outcome Document, supra note 7, makes reference to this commitment (“This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.”).

126 See Anne–Marie, Slaughter, Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform, 99 AJIL 619, 625 (2005)Google Scholar.

127 Outcome Document, supra note 7, para. 139.

128 This option is contemplated, inter alia, in Responsibility to Protect, supra note 2, paras. 4.3–4.9.

129 Note that several states may be “injured” in case of a violation of an erga omnes obligation. Articles on State Responsibility, supra note 95, Art. 42(b). In its commentary on Article 42, the Commission noted expressly that a broader range of states may have a legal interest in ensuring compliance with such obligations, even though none of them is individually or specially affected by the breach.

130 Id, Art. 48(1), (2).

131 Countermeasures shall not affect “the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations.” Id., Art. 50(1)(a).

132 High–Level Panel Report, supra note 3, para. 203.

133 See in this sense Amerasinghe, supra note 1, at 47.

134 See Responsibility to Protect, supra note 2, paras. 6.36, 6.37.

135 Id., para. 2.31.

136 High–Level Panel Report, supra note 3, para. 203 (“by the Security Council”); Report of the Secretary–General, supra note 5, para. 135 (“Security Council may”); Outcome Document, supra note 7, para. 139 (“through the Security Council”).