Rosa Brooks has a fascinating argument in Foreign Policy which ties human rights campaigners’ effective erosion of Westphalian sovereignty over the past 20 years with President Obama’s expanded drone campaign. She suggests that the Responsibility to Protect’s re-casting of state sovereignty has paved the way for the White House to deploy drones anywhere in the world it wants at any time.
It is a compelling argument. But she loses me here:
This notion of a “responsibility to protect” was embraced by the international community — including the United States — with surprising rapidity. In every way, it represents a radical assault on traditional legal concepts of sovereignty. The “responsibility to protect” doctrine — often now referred to as R2P — suggests that when a state fails to protect its own population, it can no longer claim any right to be free of external intervention (including, in extreme cases, military intervention) if intervention is needed to secure the safety of a threatened population.
And by implication, that intervention need not necessarily be authorized by the U.N. Security Council. If the Security Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action…concerned states may not rule out other means to meet the gravity and urgency of that situation,” observed the 2001 ICISS report. The logic is clear enough: If failure to protect its population delegitimizes a state’s legal claim to sovereignty, then the failure of collective security structures (such as the UNSC) to take appropriate corrective action would similarly delegitimize those collective institutions. Put a little differently, the Responsibility to Protect logically implies that both “the international community” and individual states have a right and a duty to intervene — militarily, if necessary — when another state is “unwilling or unable” to protect its own population.
By implication of a 2001 report written by academics, yes. But all 192 United Nations member states explicitly ruled that out circumventing the Security Council when they signed R2P into UN doctrine in 2005.
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.
R2P as a formal legal mechanism to justify intervention still requires the consent of the Security Council. To be sure, the principal of the inviolability of state sovereignty is challenged by America’s drone policy to the extent that drone strikes are not conducted with the consent of the country in target. But I think it is a stretch to draw a straight line between R2P and the White House drone strike policy. As a formal legal doctrine, R2P still considers the Security Council to be the ultimate arbiter of intervention.