CYIL 2014

RESPONSIBILITY WHILE PROTECTING ȃ AN ALTERNATIVE TO R2P…

same conclusion applies to the proposal of having UN-mandates missions subject

to monitoring and control which would ensure that the limits set by the Security

Council authorising resolution would not be overstepped. The idea again fits well

within the R2P framework, yet more details should have been provided by Brazil to

give the idea concrete contours.

Under the

second reading,

RwP introduces sequencing into R2P and places

emphasis upon prevention over reaction. As we saw in the previous section, the two

elements could sit rather well within the R2P concept as defined under the Outcome

Document. The relationship between the pillars could effectively be defined as that

of complementarity (pillars one and two) and of subsidiarity (pillars one and three).

Although the Special Rapporteur Edward C. Luck has repeatedly criticised the

sequencing approach, it seems that the criticism has more to do with the idea of

chronology introduced into the sequencing rather than sequencing itself. As Brazil

has recently shown willingness to revise its approach, declaring that the sequencing

of the three pillars had to be

“logical, not chronological”,

the controversy in this

area could be easily done away. The same holds for the emphasis upon prevention,

which has been present in, if not characteristic of, the concept of R2P ever since the

publication of the ICISS report.

The

third reading

pertains to the need of the reform of the UN Security Council. At

first sight, this element seems to be rather new, because the Outcome Document does

not link R2P with the question of the institutional reforms at the United Nations. Yet,

the relationship between the two topics is difficult to deny. The Outcome Document

implicitly designs the UN Security Council as the only appropriate body to assume the

subsidiary responsibility to protect in cases in which the territorial state manifestly fails

to protect its population from the four core crimes under international law. If it is to

assume this role, the UN Security Council naturally needs to feature both efficiency

and legitimacy. Brazil is right to claim that the former is not independent of the latter

and that there have been, for a long period, doubts about the representativeness of

the organ. At the same time, Brazil might be too optimistic in its belief that adding

new members, including new permanent members (Brazil being one of them), is

necessarily the best redress to the flaws exhibited by the UN Security Council. Yet

reopening the debate about the topic and placing it within the broader context of

R2P fits quite logically within the commitments made at the World Summit in 2005.

Largely overlapping with R2P, RwP cannot be considered as a true alternative

to this concept. Rather, it gets back to

the original ethos

on which R2P was

founded – that focused on prevention and repression of core international crimes,

favouring prevention over reaction and stressing the idea of responsibility: the primary

responsibility of the territorial state as well as the subsidiary responsibility of the

international community, translating

inter alia

into a cautious and disciplined use of

force. RwP addresses certain shortcomings of R2P which usually result from the

gaps left in the 2005 Outcome Document or from the way in which R2P has been

Brazil,

Statement by H. E. Ambassador Maria Luiza Ribeiro Viotti,

5 September 2012,

op. cit.