Document Type

Article

Publication Date

2016

Publication Title

Columbia Journal of Transnational Law

Issue

54

First Page

382

Abstract

This Article responds to current literature, which unitarily advocates for a United Nations Security Council (UNSC) reform solution to the Responsibility to Protect (R2P) deadlock, particularly in the context of the situation in Syria. This Article argues, contra the consensus, that a reformed UNSC would hinder the crystallization of R2P as a customary norm and its application to humanitarian crises. Part I of this Article argues that the interaction between R2P and the newly advanced concept of Responsibility Not to Veto (RN2V) can be examined under two hypotheses: one substantive and one procedural. The substantive hypothesis treats RN2 V as a corollary obligation to R2P, explicating that the concept of R2P necessitates two separate state obligations: (1) the obligation to respond to grave violations of human rights; and (2) the obligation to, at a minimum, refrain from obstructing other states' efforts to employ R2P. I argue that the substantive hypothesis, though not necessarily conceptually problematic, does not offer the same practical and pragmatic value that the procedural hypothesis does. By viewing RN2V as a procedural mechanism to facilitate R2P's invocation, R2P has a higher likelihood of being crystallized into a rule of customary international law. Part II of this Article analyzes empirical data to show that the often-proposed UNSC reform measure would be ineffective. I utilize the proposed models of UNSC expansion, advanced by the current academic literature, to examine the past and current practices ofpotential new permanent members toward the concepts ofRN2 V and R2P. By comparing this practice to that of the current permanent UNSC members, I conclude that the resulting UNSC composition would, in the aggregate, include more states that are not traditionally in favor of R2P. Despite hopes of a UNSC reform making the Council more effective in governing the use of force, this Article argues that in cases of R2P, a reformed UNSC is likely to face greater difficulty in reaching a consensus. Instead, the most effective way to promote the development of the R2P norm is through acknowledging RN2 V's procedural role, and the assertion that RN2V functionally implements, or particularizes, R2P.

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