Edward C. Luck, United Nations Assistant Secretary General, spoke at the Sutton Colloquium about the responsibility to protect and the effect of the Arab Spring on R2P. A central theme of Professor Luck’s discourse was that R2P is a political, as opposed to a legal, concept. With all due respect to Professor Luck, whose work’s value to the international community cannot be overstated, he is both empirically and normatively incorrect when he suggests that R2P is purely political.
According to Professor Luck, R2P adds nothing to international law. It is a political concept with a political following that works not because it is legally binding, but because there is a perception among policymakers that the public cares about it. This claim is empirically false. The three components of R2P are: 1) states have the primary responsibility to protect its citizens from atrocities; 2) there is a parallel obligation of third party states to assist states under stress; and 3) any of the tools under Chapter 6 of the UN Charter are available to the international community to remedy failures by states to live up to its obligations. Taken alone, these three pillars are neither new nor particularly exciting, as state primacy, foreign aid, and humanitarian intervention are already mainstays of the modern human rights regime. R2P is exciting as a development only to the extent that it is evidence of state practice explicitly suggesting qualified sovereignty. The concept of sovereignty is an inherently legal one, and changes to the concept of sovereignty are properly seen as legal changes. R2P is nothing more than a semantic label at the political level. It is only novel when thought of in the legal context.
In addition to his empirical claim, Professor Luck advances the normative argument that R2P is more effective as a political concept than a legal one. This normative claim is overly formalistic. The benefit of R2P as a legal concept is that legal status confers upon the concept definite contents. An international court could clearly indicate whether or not a legal concept had been properly invoked. As a political concept, however, R2P becomes little more than a slogan that could be just as easily invoked unilaterally as through the Security Council. Professor Luck would point out that invocation through the Security Council is an essential element of R2P and unilateral invocation, by definition, would remove any state action from the realm of R2P. This is where formalism comes in and Professor Luck’s argument falls short. If R2P is nothing but a political concept, its contents are shaped solely by political actors making political decisions. In the world of the internet and the twenty-four hour news cycle, the court of public opinion, not the United Nations, is the final arbiter of political decisions. If it is a purely political norm, R2P is destined to become whatever individual states make of it.
Rather than attempting to fit the square peg of R2P into the round hold of Westphalian sovereignty by writing it off as a purely political concept, we should be using the emergence of the norm to have a forthright legal discussion about the degree to which the international community has changed and the need for the law to change with it. If R2P is but a political concept, it will be taken over and irreversibly damaged by political actors before it can be introduced as a workable norm of international law.