28/01/2013

Opinio Juris Blog Archive Could R2P Justify a No-Fly Zone in the Absence of Security Council Approval?

Could R2P Justify a No-Fly Zone in the Absence of

Security Council Approval?
by Natalie Oman
The following is a guest post by Natalie Oman, an Assistant Professor of Legal Studies at the University of Ontario
Institute of Technology in Canada.
As the Libyan rebels requests for an internationally-enforced no-fly zone have multiplied and regional support has
coalesced among the Arab League, the GCC and some members of the African Union, public hand-w ringing over the
lack of a Security Council resolution to legalize such action has intensified. But Security Council authorization under
Chapter VII of the UN Charter is not the only available legal basis for military action to close Libyan airspace.
As is w ell-know n, in 2001, the International Commission on Intervention and State Sovereignty (ICISS) identified w hat it
described as a crystallizing principle of international law the responsibility of states to protect the human security of
their citizens. According to the Commissions reading of evolving customary international law , w hen states fail to fulfill
this fundamental role, the responsibility to protect devolves upon state-members of the international community.
Led by the United Nations, this principle has been developed as a central plank in the current Secretary-Generals human
protection agenda. The interpretation of the responsibility to protect championed by the UN (R2P) is narrow but deep,
holding that the principle applies only w hen threats to human security take one of four forms: possible genocide, ethnic
cleansing, w ar crimes, or crimes against humanity. Key to the R2P view is the assertion that the principle is a moral and
political one, w ith no legal character. It follow s that military intervention for human protection purposes is only legal on
this account w hen approved by the Security Council (or in rare cases, presumably involving a Uniting for Peace
resolution, by the General Assembly).
But this isnt the w hole story, because the UNs interpretation of the responsibility to protect is not the only one possible.
It is plausible not only to regard the responsibility to protect as a legal principle in line w ith the ICISSs account, but also to
understand it as possessing an over-determined legal character, w ith its origin in multiple sources of international law .
There is evidence to suggest that the responsibility to protect can be interpreted not only as a product of customary
international law , but perhaps more revealingly as having its source in the general principles of law of civilized nations
identified in Article 38(1) of the Statute of the International Court of Justice.
The means by w hich general principles of international law come into being are under-explored in international legal
research and jurisprudence. But Giuseppe Sperduti, the late Italian judge on the European Court of Human Rights,
outlined one process of international legal norm-creation that clearly corresponds to this category of international legal
sources. In his Lezioni di diritto internazionale, Sperduti described a process of legal recognition of the demands of
public conscience (riconoscimento giuridico di esigenze della coscienza pubblica) that produces general rules of
international law . Sperdutis examples of such norms include the prohibition against w ars of aggression and the slave
trade, as w ell as the protection of civilians and combatants against inhuman w arfare. It is evident that the responsibility
to protect is emerging as another such norm.
But in order to understand the responsibility to protect as a legal principle offering grounds for action independent of
Security Council authorization, another step is needed. The prevailing R2P version of the principle not only depends upon
the assumption that the responsibility to protect is non-legal in character; it also rests upon a common reading of Article
2(4) of the UN Charter w hich suggests that the Security Council is the only body able to authorize the legal use of force
across state boundaries (except in circumstances of self-defence). The Security Council is, of course, charged w ith
primary responsibility for the maintenance of international peace and security in Article 24(1) of the Charter, but it is not
clear that this means that the Security Council possesses a monopoly upon the law ful use of international force. While it
is w ithout doubt that all proponents of the responsibility to protect regard a Security Council mandate as the most
unassailable form of authorization available, Article 2(4) can be interpreted to allow for military intervention under certain
circumstances w ithout violation of Charter Article 2(4) in the absence of a Security Council resolution.
This argument turns on the breadth of application of the jus cogens prohibition on the use of force recognized in Article
2(4) of the Charter, and is outlined in recent w ork by Gelijen Molier makes a plausible case for regarding highly
circumscribed violations of Article 2(4) such as those that might be undertaken in compliance w ith the responsibility to
protect criteria for military intervention but w ithout Security Council approval as not constituting aggression, and
therefore, not in violation of a jus cogens norm.
This, or a similar view of Article 2(4) is implied by the original ICISS reading of the responsibility to protect, w hich, like the
interpretation suggested here, leaves room for invocation of the principle as a legal justification in cases that are w idelyrecognized as meeting all threshold criteria for intervention, but are not supported by a resolution of the Security Council.
opiniojuris.org/2011/03/17/could-rtop-justify-a-no-fly-zone-in-the-absence-of-security-council-approval/

1/3

28/01/2013

Opinio Juris Blog Archive Could R2P Justify a No-Fly Zone in the Absence of Security Council Approval?

There is a pow erful and obvious disincentive to adopting the interpretation of the responsibility to protect outlined here:
the fear that it w ill mark its proponents as apologists for neo-imperialism. But taken in context, w ith all of the caveats and
cautions that are integral to the principle itself, this argument cannot be employed successfully to reinforce the historical
hierarchy in international law betw een civilized and uncivilized (memorialized as it is in the very w ording of the ICJ
Statute in question), nor used as a figleaf for imperial geopolitics. Instead, this reading of the R2P uses the mechanism of
law -creation underlying Article 38(1) to assert the agency of non-state actors in international law and to acknow ledge a
polycentric alternative to the dominance of the P5 members of the Security Council. It does so by recognizing the legal
normativity of the demands of public conscience, w here public conscience is the product of an incomplete, imperfect
process of global opinion- and w ill-formation that involves INGOs (such as the International Federation of Red Cross and
Red Crescent Societies and Mdcins sans Frontires), the media of global reach, and emerging social media.
In the absence of Security Council membership rules or decision-making procedures that reflect the key commitments of
global human rights culture and thus lack w hat Jrgen Habermas terms procedural legitimacy the possibility of
invoking the general principle of the R2P as a legal justification for military intervention that meets the stringent threshold
criteria developed by the UN w ill remain open. The legitimacy of such a move, how ever, w ill inevitably depend upon the
particular circumstances identified by the ICISS: the purpose, the means, the exhaustion of other avenues of redress
against grievances, the proportionality of the riposte to the initiating provocation, and the agency[/ies] of authorization.

March 17th, 2011 - 5:51 AM EDT | Trackback Link |

http://opiniojuris.org/2011/03/17/could-rtop-justif y -a-no-f ly -zone-in-the-absence-of -security -council-approv al/

4 Responses

In 1999, NATO w ent to w ar against the Federal Republic of Yugoslavia w ithout explicit prior UNSC approval. The
reasoning w ould be the same in this case, I w ould assume.
In response, Russia, China and Namibia jointly introduced a proposal condemning the operation, but it w as voted dow n
12-3. This set the precedent for Ex post facto approval (lack of prior approval on the UNSCs part did not mean military
action w as ipso facto illegitimate). Im sure most everyone here know s this already.
But it looks like the UN is going to approve a resolution for no-fly zones over Libya anyw ay, for all the good it w ill do to
take out 5 percent of Libyas military capability. At vast expense.
3.17.2011
at 10:05 am EST
Liz

Its unclear to me (not being a law yer) that the jus cogens prohibition against the use of force that I keep reading about
is any stronger than the demonstrably customary practice of sending troops over borders (especially w hen national
interest can be linked to humanitarian concern). Thats my historical take, and Im just a sporting amateur. Not being a
law yer, even I can understand exactly how there might be a body of precedent available to support a use-of-force
prohibition w hile a corresponding volume of use-of-force authorization is shallow er: as a practical matter, just uses
of force seldom are adjudicated. UNSC resolutions seem to me to be a less than ideal legal guide. (Thats the
impression Im getting from Chestermans Just War or Just Peace, anyw ay.)
Thanks for this post. I didnt think thered ever something here I could speak to. The question w hether UNSC remains
the sole authorization is troubling, but interesting. My reading of the R2P report seemed quite clear that the SCs
authority w as reaffirmed. I understood (erroneously?) that the report w as only an expression of current thought about
the criteria w hich might trigger an intervention.
The degree a non-sanctioned use-of-force w hich nonetheless meets the criteria R2P spells out is a question
demanding thought.
Thanks again.
3.17.2011
at 10:33 am EST
Brett Blake

opiniojuris.org/2011/03/17/could-rtop-justify-a-no-fly-zone-in-the-absence-of-security-council-approval/

2/3

28/01/2013

Opinio Juris Blog Archive Could R2P Justify a No-Fly Zone in the Absence of Security Council Approval?

The NATO intervention in Kosovo is usually seen as the best example w hy one could intervene w ithout SC approval.
But this should actually be the example w hy such interventions should not take place. I have extracted the pages
187-194 from the book: Gibbs, D. N. (2009). First do no harm: humanitarian intervention and the destruction of
Yugoslavia. Vanderbilt University Press. According to this view the conflict could be solved peacefully, but NATO
chose to use military force anyw ay.
3.17.2011
at 10:39 am EST
M ihai M artoiu Ticu

At least as long as the SecC has not yet come to a vote, the R2P should be sufficient ground for interim measures by
individual States.
3.17.2011
at 12:31 pm EST
rGrabosch

Trackbacks and Pingbacks

There are no trackbacks or pingbacks associated w ith this post at this time.

opiniojuris.org/2011/03/17/could-rtop-justify-a-no-fly-zone-in-the-absence-of-security-council-approval/

3/3