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DIPLOMACY ДИПЛОМАЦИЯ

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RESPONSIBILITY TO

RESPONSIBILITY TO PROTECT: THE CONTINUING POST-COLONIAL WESTERN... optional, instead of mandatory. Spencer Zifack points out the rejection of States of R2P at the draft writing session, stating: “we recognise our shared responsibility to take collective action”; 19 avoiding to accept any kind of legally binding language suggesting an actual responsibility. There are serious problems caused by the lack of clarity in the language surrounding R2P: who exactly should intervene and where does the responsibility really lie? Moreover, the International Community is said to carry this responsibility, but R2P fails to provide specific guidance for that. What will happen if a State is unwilling to intervene in helping the citizens of another country in which another State is committing war crimes? Can that be considered as a violation of R2P? Will the International Community pose sanctions if a State is not willing to help another one? Because when a law (domestic and/or international) is broken, there tends to be some kind of consequence or punishment that follows, but, in this case, R2P lacks a clear legal conduct. In other words, R2P does not attribute a positive duty on States to act on the international level; and the inaction of the State does not result on a violation of its international responsibilities. Therefore, it is submitted that one can hardly argue that R2P holds a legal nature to it. Security Council deadlock remains in place Having read a number of scholarly analyses in favour of R2P, 20 the amount of focus put into the secondary responsibility of States in R2P intervening non-militarily through good offices, sanctions or other diplomatic means is striking. There was a sense that by focusing on means other than military intervention, the scholars were trying to avoid facing the fact that if all these means fail to stop a State from committing atrocities, the only remaining option would be a military intervention and the use of force which, of course, has to go through the Security Council, where the Permanent Five Members could veto the action. R2P, which came into place after the Kosovo intervention, still fails to provide a solution to the SC’s deadlock when there is a desperate need to stop grave violations of human rights and crimes against humanity taking place in a State. It is, therefore, submitted that R2P, as before, fails to guarantee state action when needed. It is wrong to think that, in situations like Kosovo, we are left with only two choices: to either “respect” the SC’s lack of functionalism in not being able to authorise the use of force due to the practice of veto right by one or more permanent member states (some people refer to this as “damage to international order”), or to save lives by disregarding the laws and the SC`s decision. There has to be a third way, a way in which lives could be saved in both legitimate and legal way. Orford’s argument on instrumentalism is compelling in this respect. He argues that international law is not meant to transform a piece of textual information into action. It is rather meant to be oriented towards human purposes, just like any other kind of law. Without a specific purpose, the law is meaningless. International law’s goal according to the UN Charter, is to maintain the international peace and security and protect human rights worldwide. The Charter is not appreciated because of its text; it is honoured because we believe it leads us to having a more peaceful world and a better place to live. If for some reason, it fails to perform its function, it is no longer valuable. 21 If words lack actions, what is there to be valued? 19 Zifcak, Spencer M. "United Nations reform: Heading north or south?." Global Change, Peace & Security 18.3 (2006): pg. 116. 20 Stahn, Carsten. "Responsibility to protect: Political rhetoric or emerging legal norm?." American Journal of International Law (2007): 99-120. Evans, Gareth. "The responsibility to protect: ending mass atrocity crimes once and for all." Irish Studies in International Affairs 20.1 (2009): 7-13. 21 Orford, Anne. "Muscular humanitarianism: reading the narratives of the new interventionism." European Journal of International Law 10.4 (1999): 679-711. Pg. 164. DIPLOMACY 18/2016 205

RESPONSIBILITY TO PROTECT: THE CONTINUING POST-COLONIAL WESTERN... Furthermore, Simma Bruno argues that, in the case of Kosovo, only “a thin line” was crossed. And she further adds that such an approach should not become a regular part of this strategic programme for the future, as it would undermine the universal system of collective security. 22 She believes that resorting to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another. 23 Thus, Bruno is basically arguing that what happened in Kosovo, although not legal, can be considered as an exception, and that NATO’s action in Kosovo does not create a precedent. It is submitted that as soon as we start making justifications for breaking laws, or, in other words, make exceptions as to where it is allowed to break them, the law has failed its aim. Hence Antonio Cassese 24 is correct in disagreeing with Bruno in terming the breach of international law by NATO “minor”. However, our agreement with him ends here. We should not remain silent about killings of other human beings because the existing body of international law proves incapable of remedying such situations (i.e., Kosovo). Cassese suggests there can be ways in which the world can overcome the SC deadlock dilemma. He proposes that creating exceptions under certain strict conditions to resort to armed conflict may gradually become justified with the absence of authorization by the SC. 25 He describes six conditions, two of which being: • “(IV) When the Security Council is unable to take any coercive action to stop massacres because of its disagreement among the permanent members or because one or more of them exercise its veto power. Consequently, the Security Council either refrains from any action or only confirms itself to deploring or condemning the massacres, plus possibly terming the situation a threat to the peace”. 26 • “(V) A group of states (not a single hegemonic Power, however strong its military, political and economic authority is, nor such Power with the support of a client state or an ally) decides to try to halt the atrocities, with the support or at least the nonopposition of the majority of Member States of the UN”. 27 Cassese’s suggestions are not a solution for the deadlock of the SC. They are rather ways to break the law, instead of changing the law to a way that States no longer have to break it. Instead of making exceptions as to allowing the law to be broken there are two ways in which the International Community can deal with the SC deadlock situations. First, the easiest and yet the hardest way is to have a change in the SC’s function, and have the veto right removed in use of force situations. That can be achieved within the UN system itself and through States’ acts. After all, one should not forget that these are states that give legitimacy to organizations like the UN and to international law as a whole. The second way is by shifting the responsibility to determine the legitimacy of the use of force from the Security Council to the General Assembly, requiring the two thirds majority consent of Member States. Despite what Cassese suggests, we do not agree that “non-opposition of the majority” is strong enough for such authority. That will make the decision more democratic and less hegemonic. 206 22 Simma, Bruno. "NATO, the UN and the Use of Force: Legal Aspects."European Journal of international law 10.1 (1999): 1-22. Pg. 1. 23 Ibid. 24 Cassese, Antonio. "Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?." European Journal of International Law 10.1 (1999): 23-30. 25 Ibid. Pg. 27. 26 Ibid. 27 Ibid. ДИПЛОМАЦИЯ 18/2016

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    18/2016 Октомври-Декем

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    CONTENTS Contents INTERVIEW The Eur

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    ЕВРОПЕЙСКИЯТ СЪЮЗ

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    СТРАТЕГИИ ЗА СЪЗДА

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    СЛОВАШКОТО ПРЕДСЕД

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    РОЛЯТА НА МЕЖДУНАР

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    РОЛЯТА НА МЕЖДУНАР

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