It seems that momentum continues to grow towards the “responsibility to protect” (or R2P) becoming a norm of international law. The Centre for Conflict Resolution, a South African organisation based at the University of Cape Town, South Africa, with “a pan-African focus” (that, according to its website, plays a leading role in contributing towards the resolution of conflict and the reduction of violence in Africa) has published a report titled Africa’s responsibility to protect. The report makes ten key recommendations implementing the R2P principle, which it notes “gained international legitimacy since its adoption at the UN World Summit in September 2005″.

(The Canadian government sponsored International Commission on Intervention and State Sovereignty (ICISS) report, co-chaired by Gareth Evans and Mohamed Sahnoun, developed the principle in 2001. Further information can be found on the international crisis group R2P website.)

The question, then, is: how does the principle interact with the international obligations of Member States of the UN under Article 2.7 of the UN Charter:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

Does the principle rely upon the actions of the Security Council under Chapter VII? Does that in effect neuter the R2P principle?

The R2P principle is clearly inconsistent with Article 2.7. Does the principle only apply to the extent that it is not inconsistent with Art 2.7? Is the adoption of the principle a new means of overriding prior, inconsistent law, notwithstanding that that prior law is expressed in the words of one of the most important treaties? Are we seeing a pragmatic aproach to the thorny problem of how to modify the Charter? Will the approach lead to larger problems down the track, with States able to avoid their obligations under treaty? Has the adoption demonstrated the Member States’ understanding of how they interpret the Charter?

R2P is, in my mind, an essential evolution of public international law. Unfortunately, the inconsistency between the adopted principle and existing treaty law will set precedent. How this precedent will be used in future remains uncertain. What is not uncertain it that it will be used. It seems that the approach taken in adopting the principle is the least worst approach.

Over to you.