User login

Correlation and Succession of the Actions of States and International Bodies within the Pillars of RtoP by Vyacheslav Gavrilov

This article was prepared on the basis of the presentation which was made by the author during the 2nd meeting of the Study Group on the Responsibility to Protect of the Council for Security Cooperation in the Asia Pacific (CSCAP), which took place on September, 20-21th, 2010 in Manila, Philippines. The article defines the notion and content of the «responsibility to protect» conception, that succeeds the theory of humanitarian intervention. It also comprises the description of the basic ways and forms using which the state bodies and international organizations interact during this conception implementation.

             Keywords: conception, responsibility to protect, route map, state bodies, international organizations, assistance, cooperation, implementation.

Correlation and Succession of the Actions of States  and International Bodies within the Pillars of RtoP 

Vyacheslav V. Gavrilov*

 

         The idea of “Responsibility to Protect” (RtoP) is not a new legal rule or doctrine. This thesis is recognized sufficiently wide. But what is the nature and purpose of RtoP? To our mind, it can be determined as multi-disciplinary “route map”, which, basing on the existent legal and political doctrines and rules and developing them, establishes the list of actions, which the states and the international community shall undertake to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.

         RtoP proceeds from the fact that the states have an imperative and eternal duty to defend their populations and that the international community bears the responsibility for rendering effective and timely assistance in case of need and in any place of the world. The RtoP conception especially underlines the value of prevention and, when it fails, of early and flexible response adapted to the specific circumstances of each case.

         Such RtoP idea and format understanding is not called into question nowadays. That is why in the present-day doctrine and practice of international relations an emphasis shall be put not on the question of the existence or non-existence of such responsibility or duty, but on how the idea of RtoP shall be realized in specific world regions.

         In the process of RtoP implementation model construction, practical importance should have the question of how shall the actions for the population protection be sort with each other and in what sequence they shall be realized by the state bodies, on the one hand, along with the organs of international organizations, on the other. The answer to this question is pretty complicated because as it was noted in the report of the UN secretary general on January 2009, “there is no set sequence to be followed from one pillar to another (within the RtoP), nor is it assumed that one is more important than another. Like any other edifice, the structure of the responsibility to protect relies on the equal size, strength and viability of each of its supporting pillars”

         Nevertheless, to our opinion, certain correlation and succession of the actions of states and international bodies within the pillars of RtoP can be traced after all and today I’d like to share with you some of my thoughts on this subject.

But before let me briefly remind you the content of each of the three RtoP basic pillars. The first one involves protection responsibilities of the State. These responsibilities, inherent for the states because of the state sovereignty nature itself, find their formal fixation in the sources of international law, political documents, and are aimed at these states population protection against four types of especially dangerous crimes under international law. The second pillar provides for rendering assistance on the part of the international community to the states after their protection responsibilities performance. The third pillar proceeds from the fact that the international community bears the responsibility for timely and decisive response in cases when national authorities are manifestly failing to protect their populations.

Since the first pillar provides for certain responsibilities of the State, actions of its bodies for RtoP idea implementation will be treated as primary and basic under this pillar. Such-like actions shall first of all be targeted to the policy formulation and implementation in order to prevent the mentioned crimes, including their incitement. At that, the State here is entitled to establish range of measures and means which it will use for this aim achievement. These measures can be diverse: from carrying out special education programs for the population to total reformation of legal and political systems of the State.

That is why during this presentation it is impossible to make detailed classification of such actions and to estimate their effectiveness for RtoP idea realization. The difficulty here is that such estimation should be made taking into account each certain State historical, cultural and economic development, political system and religious traditions. This is connected with the fact that the measures which are successfully applied in one State can be inefficient and even have negative effect in the other.

         At the same time it is necessary to have in mind that in spite of the diversity of the measures, which can be applied in various states, all of them are realized generally by the same stage of actions including, firstly, collection of information on the fragility of the situation and the risks associated with it (so-called “early warning”), and, secondly, determination of political and other available measures which are able to change the situation (so-called “preventive toolbox”). Moreover, within the preventive toolbox the measures to eliminate “root” and “direct” causes of crimes can be divided.

         In spite of the fact that the actions of the State bodies are treated as primary and basic under the pillar one, international structures are also able to exercise significant influence on RtoP realization by the states. Under the pillar one, beyond the mechanisms of direct assistance for the states, the actions of the international bodies should be concentrated on the stimulation of the states activity for their responsibility to protect performance and on the correction of such activity in the cases when the states abuse or, on the contrary, neglect this duty.

         This activity can find its practical implementation in elaboration and approval of corresponding resolutions, declarations, programs of actions at the universal and regional levels; in holding of international training courses and seminars; in providing of analysis execution within early warning systems and in corresponding recommendations preparation; in generalization and dissemination of various states’ and group of states’ successful experience in RtoP realization, ; in activity of the international control bodies, created under international organizations or particular international treaties, etc.

Due to the existence of plenty of international bodies, executing the above mentioned functions, the task of the elimination of needless parallelism in their actions and of the improvement of the coordination of their work with each other and with the governments has great importance.

         The cooperation between the state authorities and international bodies in the process of RtoP implementation takes an immediate form under the pillar two. This is determined by the fact that rendering assistance by the international community to the State in its duty to defend performance is impossible without mutual obligations and active partnership between the states and international structures.

         Such assistance, however, can’t be provided without the application for its rendering or without the consent for its realization on the part of the State concerned. And this fact, as for the pillar one, determines the significant and primary importance of the state bodies’ activity for the “start” of the second pillar mechanism. At the same time, in contrast to the first pillar, the scope of these mechanisms work first of all determinates the actions of international but not the state bodies.

         And this is clearly enough. The demand for international assistance under RtoP idea implementation arises «when national political leadership is weak, divided or uncertain about how to proceed, lacks the capacity to protect its population effectively, or faces an armed opposition that is threatening or committing crimes and violations relating to the responsibility to protect». That’s exactly why the states act here as the target object and not the reverse.

         International assistance can be rendered at the State’s request or be offered to the State by the certain bodies or organizations which consider this State unable to carry out the necessary reforms and to cope with the serious situation by itself. As a rule the question here is about the states which are under stress before crises and conflicts outbreak. The offer of help and its type determination shall be especially delicate here, because of the fact that many national governments have the fear that “any internalization of the problem will result in further external interference and start down a slippery slope to intervention”.

         As to talk about certain types of the international structures’ actions under the pillar two, they, as for the pillar one, can be focused on elimination of “root” and “direct” causes of crime and be divided into the following groups:

  • political and diplomatic measures. They might involve, for example, democratic institution and capacity building; bringing the official persons of universal and regional organizations and their subdivisions to the situation improvement; navigating of the dialogue and mediation through good offices; problem-solving workshops creation;
  • economic measures. Here can be used, in particular, promotion of economic growth and opportunity; encouraging of necessary economic and structural reform for the poverty eradication; technical assistance for the strengthening of regulatory instruments and institutions;
  • measures for the strengthening legal protections and institutions, including supporting efforts to strengthen the rule of law; protection of integrity and independence of judiciary; enhancing of protections for vulnerable groups of peoples, especially minorities; further expansion of the scope of universal jurisdiction over respective crimes under international law;
  • measures in the military sphere and in the sphere of security service. In this case, the assistance can be rendered to the states in education and training enhancing for the military forces; strengthening of civilian control mechanisms over security agency actions, etc. In special cases, the actions of consensual preventive deployment military, police or civilian contingents are possible here as well.

         The task of determination of those types of international assistance which are desirable or necessary for the State concerned and of the level on which such-like assistance shall be rendered (universal, regional, subregional; governmental or non-governmental) is extremely important and, after all, exercises significant influence on the prosperity of the whole RtoP idea. That is why, within the pillar two, great significance has the pursuance of the field research which is able to answer these questions along with the creation of ongoing information communication channel between the states, regions and institutions concerning strategies and practices which showed themselves to be affirmative, in order to use them in other places taking into account local traditions and conditions.

         The efforts of the states and international instruments in RtoP idea realization under pillars one and two as a whole have clearly defined intention to prevent the cases of genocide, war crimes, ethnic cleansing, and crimes against humanity. Nevertheless, mechanisms of such prevention within the framework of each of these pillars are different. In the first case its content mostly involves the efforts of the State, indirectly guided by the international bodies. In the second case the actions of the international community move to the forefront, providing the State’s capacity development in relation to such prevention. But here the consent of the State to render assistance to it has the significant importance as well.

         By this the first and the second pillars cardinally differ from the third, where the formal consent of the State to cooperation with the international bodies is not needed, as a rule, and the activity of international structures itself is directed, first of all, not to the crime prevention but to the minimization and overcoming of its commitment consequences.

The duty of the international community to take all the necessary measures for the population protection forms the basis of the third pillar. These measures, according to 2005 World Summit Outcome, can be carried out in two stages.

Under the first stage “the international community, through the United Nations, has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the UN Charter, to help to protect populations”. Such measures can include, in particular, the negotiations, mediation, international proceedings, use of other peacekeeping opportunities of the General Assembly and Security Council along with the involvement of regional bodies potential and arrangements in compliance with Article 52 of the UN Charter. The second stage assumes the opportunity of acceptance of a wider range of collective actions, either peaceful or non-peaceful by the international community under Chapters VII, including sanctions and military operations.

         The actions of the international community, within the third pillar, shall be taken in a timely and decisive manner, on one side, and in full conformity with UN Charter on the other.

         Nevertheless, together with the question of what measures shall be applied by the international community in this particular case, equally significant importance has the problem of clear definition of the moment when the efforts of the international bodies for the rendering of assistance to the State within the second pillar can be replaced by the rendering of assistance to the population itself within the third pillar. To our mind this question is crucial not only for this “transfer”, but also for the whole RtoP idea, because just at that spot a line, beyond which the State turns from the “leading” subject to the “guided” in the case of population protection, is determined.

         The RtoP conception determines the situation when “national authorities are manifestly failing to protect their populations” as such-like line. In spite of some uncertainty of this criterion, in a whole it appears to be successful enough, because of the fact that the disability or unwillingness of the national authorities to perform their duties to protect can be recognized clear enough in the majority of cases.

         To our mind there are much more questions concerning additional criterion which allows the international bodies to proceed to the second stage and to perform non-peaceful acts within the third RtoP pillar. In item 139 of «2005 World Summit Outcome» is stated that the basis for it arises when peaceful means turn to be insufficient. But such “insufficiency” is difficult to be established in a particular situation and that is why it is necessary to coordinate supplementary conditions that specify the intension of its term, on the international level. It shall be done in order to reduce maximally the error occurrence probability during the qualification of the situation, which comes at a high cost not only for the State concerned but for the international community as well.

         The given above reasonings allow to arrive at the conclusion that the national and international authorities’ cooperation takes place within each of the three RtoP pillars and is focused on the main task of this idea solution – the protection providing. Nevertheless, modes, means and intension of such cooperation are different within the pillars and are determined by the “specialization” of each of them: in the first pillar – by the State’s understanding and performance of its duty to protect; in the second pillar – by the rendering of assistance to it from outside; in the third – by the collective response in the case of the crisis occurrence.

         That is why if to continue the comparison of RtoP conception with the route map and to compare the State with a car, riding on a road, the actions of the international bodies within the first pillar shall be apprehended as all the necessary road signs and indications arrangement on this road. Inside the second pillar the international instruments can be represented as the technical servicing centers with the help of which a driver can service a car with gasoline, change the oil and also to renew or repair the defective parts in order to drive on. Within the third pillar we have to do with the situation when the car becomes disabled and isn’t able to move on without help. That is why here the international community acts as a vehicle carrier which tows the broken car to the place of destination.

         The given example shows that the attempts to determine the necessity of the involvement of each of the pillars’ mechanisms sequentially (from the first to the third) in RtoP implementation process are unreasonable. Indeed, the collision can occur at the very beginning of the route and the reaction measures can be required earlier than the measures of support. At the same time there is a critical need in determination of clear sequence, scope and manner of actions which can or must be taken within each of the pillar. And to my mind just on this shall the efforts of our group be focused on the current working stage.

         It is very important to place the road signs in a manner that can allow the driving speed not to be reduced but be increased and the cars to be driving in a right direction; it is important not to replace the whole engine of the vehicle where it can be limited to the repair of one of its details and vice versa; and, of course, it is extremely important not to try to tow the car which can still be repaired.

 

 

Vyacheslav V. Gavrilov, PhD, SJD, Professor of Law.

 

         Was born in Nakhodka (USSR) in 1963. He is a Head Chair of International Public and Private Law and manager of the Master Programs of School of Law at the Far Eastern Federal University (Vladivostok, Russia). He received his PhD in Juridical Sciences from Kazan State University in 1994 and his JSD in 2006. The title of his doctoral dissertation was “International and Internal Legal Systems: Notion and Main Directions of Interaction”. He is the author of many scientific publications devoted to actual problems of international public and private law, including two monographs and textbooks International Private Law: Course of Lectures; International Law. Special Part (in co-authors); International Law. General Part (in co-authors); and International and Interstate Protection of Human Rights (in co-authors). His articles were published in such authoritative Russian and foreign legal magazines, as State and Law, Journal of Russian Law, Moscow Journal of International Law, International Public and Private Law, Law and a Policy, The Russian Year-Book of International Law, Eurasian Law Journal, Soochow Law Journal, Asia Law Review and Cuadernos Constitucionales. He was invited as a speaker and has participated in numerous of international conferences and programs in the US, France, Hungary, Taiwan, Spain, Indonesia Malaysia, Philippines and Cambodia. He is also a member of the Executive Committee of the Russian Association of International Law, member of Asian Society of International Law and co-founder and attorney of the Board of Lawyers “Etalon” in Vladivostok.

From May to August of 2011, he was invited to the Center for Asian Legal Exchange (CALE) at Nagoya University, Japan as a Visiting Professor and conducted the research project “Framework of the ASEAN Plus Three Mechanisms Operating in the Sphere of Economic Cooperation”.

 




* S.J.D., Ph.D., Professor, Head Chair of International Public and Private Law, School of Law, Far Eastern Federal University, Vladivostok, Russia