THE RESPONSIBILITY TO PROTECT AS SOFT

LAW: A LEGAL ANALYSIS IN THE CONTEXT OF

HUMANITARIAN ACTION

Lucas Ribeiro de Belmont Fonseca

Warsaw, 2017
1. Introduction

Before the Responsibility to Protect, the international community lacked a

comprehensive framework to guide its action in respecting the humanitarian values shared
by all and in responding to mass atrocities against individuals. Episodes of humanitarian
interventions were seen during the 1990s, but so were cases of grave failure to protect
civilians from genocide and ethnic cleansing.
Throughout the decades, states agreed to limit their sovereignty in order to create a
more peaceful and secure world for all of us. But there was no legal provision on how to
respond when the principle of non-indifference clashed with the principle of non-
intervention. In such a contested issue, the adoption of soft law mechanisms, especially when
embraced by the majority of international actors, open the path to effective cooperation and
practical positive results. This was the mean chose by the international community to create
the Responsibility to Protect and develop the understanding on how sovereignty should be
exercised, in the light of legal and moral obligations to protect civilians. The impact of this
initiative on humanitarian action and principles is outstanding, because it strengthens them
and give us reasons to believe there are ways the status quo can be changed for the better of
mankind.
This essay provides an insight on how the concept of the Responsibility to Protect
was created, why it can be defined as soft law and what are the impacts of this definition on
the practical reality of the international society. Firstly, I shall bring forward the implications
of the existence of soft law mechanisms in International Law; secondly, the historical
trajectory of R2P will be explained in order to give clarity to its place in the international
society; thirdly, an account on the existing opinions on the legal nature of R2P as soft law
will be made; and finally, conclusions on the discussions will be shared.

2. Soft Law in the International Law Structure

The Statute of the International Court of Justice, the worlds most important judicial
body, establishes in its Article 38 the three formal sources of international law that shall be
used by the Court in analyzing the controversies between States. Those are international
conventions, international customs and general principles of law. However, it has
increasingly become more widespread nowadays, among experts and the international
community of states, the notion that contemporary international law isnt restricted to those
three formal sources. On the one hand, the international organizations that were created in
the aftermath of the Second World War, with their status as subjects of international law and
due to the enlarged activism that characterized them after the end of Cold War, are now seen
as potential sources of international law. On the other hand, the myriad of new international
actors, such as NGOs and transnational corporations, and new topics of international concern,
such as environmental protection and the human rights agenda, have called for more flexible
and innovative approaches regarding the regulation of international relations. It is in this
context where the concept of soft law finds its relevance.1
There is no agreed consensual definition of soft law among scholars, but one may
understand it as a social norm rather than a legal one, found in written documents, such as
recommendations, resolutions or declarations issued by multilateral bodies or competent
authorities, and expressing principles, norms, standards or expectations directed at
international actors, but not legal obligations. It is a non-binding international instrument,
which may, however, have legal or political repercussions in the practical reality. Some
scholars reject the idea of even naming it as law, because it isnt obligatory, precise or able
to impose sanctions as it would be required.2 However, not only obligations or rules are
definitive of law, but also customs, practice, jurisprudence. The regulation of society does
not depend solely on sanctions or legal obligations, because morality and customs, for
example, also play a part in this regard.3
The most common expression of soft law comes in the form of documents issued by
international organizations, such as the United Nations General Assembly. The non-binding
nature of these resolutions result from the very essence of public international law, which

1
OLIVEIRA, L., BERTOLDI, M., 2012. A Importncia do soft law na Evoluo do Direito Internacional.
Revista do Instituto do Direito Brasileiro, [online] Available at:
<https://www.cidp.pt/publicacoes/revistas/ridb/2012/10/2012_10_6265_6289.pdf> [Accessed 10 December
2017]
2
SHELTON, D., 2008. soft law. Handbook of International Law, [online] Available at:
<https://ssrn.com/abstract=1003387> [Accessed 10 December 2017]
3
OLIVEIRA, L., BERTOLDI, M., 2012. A Importncia do soft law na Evoluo do Direito Internacional.
Revista do Instituto do Direito Brasileiro, [online] Available at:
<https://www.cidp.pt/publicacoes/revistas/ridb/2012/10/2012_10_6265_6289.pdf> [Accessed 10 December
2017]
requires states to express their consent to international documents in order to acquire the
status of legally binding, such as treaties. This general rule doesnt apply to Security Council
resolutions under Chapter VII of the UN Charter, which have the quality of being binding to
all member states of the UN.4 However, states gave consent to this provision when they
signed and ratified the Charter. Shelton (2008) categorizes soft law in two manners: primary
soft law comprises those texts which are directed to the international community and may
state new norms, often with the aim of posteriorly becoming hard law, or further elaborate
existing norms; secondary soft law are the documents, such as recommendations, written by
supervisory organs, courts, special rapporteurs or other political organs they are usually
bodies created by treaties that define their competences and possess the provisions that may
be under examination by those bodies.5
Soft law may differ itself from hard law in two perspectives. One sees them as direct
opposites, defined in the binary of binding X non-binding norms. The other perspective
understands soft law as being a conceptual part of a spectrum that goes from the complete
lack of norm to hard law. In between, one would find soft law, which would differ from hard
law in three dimensions: obligations, precision and delegation. The more obligations, the
more precision and the delegation of interpretation of the norm to independent third parties,
the harder law is, and vice-versa. It means that a norm may not only be harder of softer, but
may also be harder in one dimension and softer in others. The relation between these two
types of law is complex, and the common vision that the harder, the better doesnt prove
to be true. Each one, hard and soft law, has its advantages and disadvantages.6
States may prefer hard law when they expect great benefits out of international
cooperation, but, at the same time, there is a high risk the other parties do no comply with
their commitments, because they would legalize their relations in that aspect and make
obligatory to fulfill what is expected of them. States may also prefer hard law when they are
not able to assess if the other parties to the agreement are complying with it, therefore they

4
SAULNIER-BOUCHET, Franoise, 2013. The Practical Guide to Humanitarian Law. [online] Mdecins Sans
Frontires. Available at: <http://guide-humanitarian-law.org/content/article/3/soft-law/ [Accessed 10
December 2017].
5
SHELTON, D., 2008. soft law. Handbook of International Law, [online] Available at:
<https://ssrn.com/abstract=1003387> [Accessed 10 December 2017]
6
ABBOTT, Kenneth W., DUNCAN Snidal, 2000. Three Things Distinguish Hard from soft law. [online]
Available at: <https://clg.portalxm.com/library/keytext.cfm?keytext_id=66> [Accessed 10 December 2017]
need to establish an independent third party to monitor compliance and create the possibility
to impose sanctions on the violating party. In the case where states intend to compose
regional organizations often when there are already strong relations between parties or
other forms of cooperation agreements which require a great deal of sincerity in the
commitments made, such as military alliances, they may choose to use hard law as well.
Other circumstances where hard law may be preferable are when it can provide states with
political advantages, such as in the cases of asymmetrical balances of legal expertise and
resources between parties, or when establishing legal procedures benefits the states interests
or when states want to minimize political conflict deriving from instability and volatility.
Finally, states may prefer hard law when they want to establish independent third parties
responsible for monitoring and enforcement, such as international courts, based on existing
common principles and the perception of greater benefits resulting from cooperation. 7 In
general, one may say that hard law can create more legal certainty. (Shaffer, Pollack, 2011)
In other conditions, soft law may be preferable to states, in order to regulate their
relations. Firstly, producing hard law instruments demands time and abdication of national
sovereignty; conversely, soft law provides a less legalized regulation, but doesnt bear the
burden knowingly present in hard law of bargaining internationally and internally, in the
process of ratification. Secondly, hard law raises the costs to states sovereignty, especially
when there are national security concerns, uncertainty or lack of confidence between the
parties; therefore, soft law is a path to establish fairly regulated relations, but with a greater
space for maneuver, maintaining sovereignty protected, opening the opportunity for further
developments and pressing dissenting states to comply with the general agreement. A third
benefit deriving from creating soft law instruments is that they can reduce the risks related to
uncertainty surrounding some issues of concern to states, such as climate change. Adopting
a general soft law instrument provides states with guiding principles and potentially strong
recommendations and allows the parties to be more capable to deal with unexpected

7
ABBOTT, Kenneth W., DUNCAN Snidal, 2000. When Are States Likely to Prefer hard law over soft law?.
[online] Available at: <https://clg.portalxm.com/library/keytext.cfm?keytext_id=69> [Accessed 10 December
2017]
outcomes and changing circumstances, something that would be more difficult under a
binding hard law document.8
Soft laws inherent flexibility and space for compromise may help parties to an
agreement to shape their commitments according to their interests and capacities, leaving
contested issues under an imprecise regulation that soft law can provide. This is particularly
relevant in cases when the parties to a soft law agreement have asymmetrical power
capacities: while weaker states benefit from legalizing their relations with stronger states,
because it creates limitations on their power projection, powerful states also benefit from
adhering to soft law agreements due to the reduction of costs and risks to their reputation that
would exist if their relations with weaker states were based on coercion. In this framework,
both weak and powerful states would be able to pursue their interests more efficiently.9 This
flexibility is also useful when regulating certain issues requires the participation of non-state
actors, such as transnational corporations or NGOs, which cannot be parties to treaties and
are not bound by customary law, therefore enhancing the efficacy of the regulation. 10
The relations between these two types of law can be complementary, but also
antagonist. The adoption of a soft law document may be followed by a voluntary change of
behavior and practice among a greater number of states including their voting patterns in
multilateral organizations , based on the non-binding principles and recommendations
brought forward by the soft law agreement, as well as providing further foundations for the
clarification of an emergent norm and for the development of opinio juris, which would
possibly entail in the recognition of a customary law. A soft law instrument could also
encourage states to enter into negotiation of treaties concerning the issues regulated by the
non-binding agreement, after some degree of clarification of the topic and some consensus
are reached by the parties. Furthermore, soft law documents often are basically the written
form of existing law or a combination between new and existing norms, shaping the way an
emergent norm shall be understood by the international community or filling the gaps present

8
ABBOTT, Kenneth W., DUNCAN Snidal, 2000. When Might soft law Be Preferable to hard law?. [online]
Available at: <https://clg.portalxm.com/library/keytext.cfm?keytext_id=68> [Accessed 10 December 2017]
9
Ibid.
10
SHELTON, D., 2008. soft law. Handbook of International Law, [online] Available at:
<https://ssrn.com/abstract=1003387> [Accessed 10 December 2017]
in binding texts. Finally, soft law may become hard law when it influences the adoption of
domestic law in accordance to what was agreed in a non-binding document.11
Some scholars, however, argue that the proliferation of soft law instruments may pose
a danger to the existing hard law and to the overall International Law structure, because they
could contradict existing hard law, therefore softening it, and could imply more
challenging efforts in interpreting the provisions agreed by states, due to their common
imprecision.12 Shaffer and Pollack (p. 1173, 2011) argue that, when there is a high
distributive conflict over the terms of international law, states () may deliberately use soft-
law instruments to undermine hard-law rules to which they object or, vice-versa, to create an
antagonistic relationship between these legal instruments. A further difference between soft
and hard law is the consequence to their violation: on the one hand, violating hard law has
legal consequences; on the other hand, disrespecting soft law creates political
repercussions.13

3. The Responsibility to Protect: From Conceptual Origin to Practical Implementation

The Responsibility to Protect is a concept created in 2001, in the aftermath of the

heated and controversial discussions in the international community regarding the unilateral
NATO intervention in Kosovo. Preceded by examples of increased engagement of
international troops in peace operations beyond its traditional principles of consent,
impartiality and restricted use of force, as well as by other cases where the international
community failed to respond appropriately to mass atrocities, such as the Rwandan genocide,
this episode encouraged states to debate whether it would be legal and legitimate to intervene
in sovereign states answering to a humanitarian call to protect civilians from mass atrocities,
such as genocide and ethnic cleansing.14 This debate was framed in the question posed by the

11
Ibid.
12
Ibid.
SHAFFER, G., POLLACK, M., 2011. Hard Versus soft law in International Security. Boston College Law
Review, [online] Available at: <http://lawdigitalcommons.bc.edu/bclr/vol52/iss4/1> [Accessed 10 December
2017]
13
SHELTON, D., 2008. soft law. Handbook of International Law, [online] Available at:
<https://ssrn.com/abstract=1003387> [Accessed 10 December 2017]
14
BELLAMY, A., WHEELER, N., 2011. Humanitarian intervention in world politics. In: J. Baylis, S. Smith,
P. Owens, ed. 2011. The globalization of world politics: an introduction to international relations. Oxford:
Oxford University Press, pp. 510-527.
then Secretary-General Kofi Annan in his 2000 report We the Peoples: if humanitarian
intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a
Rwanda, to a Srebrenica to gross and systematic violations of human rights that offend
every precept of our common humanity? (Annan, p. 54, 2000)
In order to attempt to answer this complex question, the International Commission on
Intervention and State Sovereignty was convened by the Canadian government. Its mission
was to hold meetings in different regions of the globe and to reframe the debate away from
a supposed right to intervene towards a responsibility to protect. The report issued by
the ICISS claims that this responsibility to protect civilians from mass atrocities is founded
upon existing obligations inherent in the concept of sovereignty and resulting from
international human rights and humanitarian treaties and customs, including the developing
practice of regional organizations and the Security Council, itself responsible for the
maintenance of international peace and security.15 It is important to notice that these legal
instruments are already powerful restrictions on the full exercise of sovereignty, especially if
one takes into consideration the historical moment when these debates were being held in the
international arena: after the Cold War, when, as stated by then Secretary-General Boutros-
Ghali, The time of absolute and exclusive sovereignty has passed. (Boutros-Ghali, p. 44,
1992)
The ICISS report argued that, inherent to state sovereignty, there is a responsibility
to protect the people under the jurisdiction of this state. When states are unwilling or unable
to fulfill this responsibility, it is upon the shoulders of the international community, which
needs to answer in accordance to the necessity of the situation, making the principle of non-
intervention to yield to the responsibility to protect. Furthermore, the Responsibility to
Protect is divided in three complementary responsibilities: to prevent, to react and to rebuild.
The possibility of using force is under the scope of the responsibility to react, but it should
be guided by some criteria: just cause, right intention, last resort, proportionality, reasonable
chances of accomplishment and right authority, which should be recognized primarily to be
under the competence of the United Nations Security Council, but alternatively also under
the powers of the UN General Assembly and regional organizations.16

15
INTERNATIONAL COMISSION ON INTERVENTION AND STATE SOVEREIGNTY, 2001. The
Responsibility to Protect. Ottawa: International Development Research Centre.
16
Ibid.
 Kofi Annan welcomed the contribution made by the ICISS and included the concept
of the Responsibility to Protect in his report to the 2005 World Summit, In Larger Freedom:
Towards Development Security and Human Rights for All. The High-level Panel on
Threats, Challenges and Change, convened by the UN Secretary-General, characterized the
Responsibility to Protect as an emerging norm in its A more secure world: Our share
responsibility report.17 However, there was opposition to the concept as well, mainly from
Global Southern countries, which believed R2P would be a threat to the principles of
sovereignty and non-intervention. For this reason, in the negotiation process to include R2P
in the Outcome Document of the 2005 World Summit, the concept was changed and focused
primarily on the international assistance to prevent and to react to four specific crimes
genocide, crimes against humanity, war crimes and ethnic cleansing. Furthermore, the
threshold of states unwillingness or inability to fulfill its responsibility to protect was raised
to manifestly failing. At last, the Outcome Document didnt open the possibility of
authorizing the use of force by alternatives to the Security Council, such as the General
Assembly.18 The changes made to R2P made it more precise, strict and in accordance to the
UN Charter, without stablishing new obligations upon states and the international
community. They also sidelined the provision on the possibility of using force, leaving it to
be decided by the Security Council on a case-by-case basis.
Approved unanimously by the UN Member States in the 2005 World Summit as part
of a General Assembly resolution, the Responsibility to Protect was later endorsed by the
Security Council in a resolution regarding the protection of civilians in armed conflicts.19 In
2009, the UN Secretary-General Ban Ki-moon issued a report entitled Implementing the
Responsibility to Protect, which stated that R2P is an ally to state sovereignty, because it
seeks to strengthen states capacity to prevent and to respond to mass atrocities.20 Building
upon existing prevention and protection measures found in Chapters VI, VII and VIII of the
UN Charter, the report structured R2P on three pillars: Pillar One refers to the primary

17
FONSECA, L., 2016. O Sul Global e o Desenvolvimento do Conceito da Responsabilidade de Proteger:
CIBAS e o Caso Lbio. Bachelor. Universidade Federal da Paraba.
18
MURTHY, C., KURTZ, G., 2016. International Responsibility as Solidarity: The Impact of the World
Summit Negotiations on the R2P Trajectory. Global Society, v. 30, n.1, pp.38-53.
19
UNITED NATIONS SECURITY COUNCIL, 2006. Resolution 1674 (2006). S/RES/1674, New York: United
Nations Security Council.
20
UNITED NATIONS GENERAL ASSEMBLY, 2009. Implementing the responsibility to protect: Report of
the Secretary-General. A/63/677, New York: United Nations General Assembly.
responsibility of states to protect civilians from mass atrocities, deriving from the legal
obligations binding states throughout the years; Pillar Two explains the commitment made
by the international community to assist states in fulfilling their responsibility to protect;
Pillar Three states the entire range of legitimate possibilities assured by the UN Charter under
its Chapters VI, VII and VIII for the international community to appropriately respond to
manifest failure by states to accomplish their responsibility to protect individuals.21 Under
this structural conception of the Responsibility to Protect, it can be understood as a political
international commitment to prevent and to respond to mass atrocities, resulting in a range
of policies to be created and implemented by states, in their effort to responsibly exercise
their sovereignty.22
The clearest and most paradigmatic example of practical implementation of R2P is
the NATO intervention in Libya in 2011. In fact, this was the only circumstance when the
use of force was approved by the Security Council based on R2P. In the context of the so-
called Arab Spring, the intervention was motivated by the threats posed by Qaddafis troops
to the lives of civilians in Benghazi and it was preceded by widespread international
condemnation of the levels of violence used by the Libyan regime: the UN Secretary-
General, the UN General Assembly, the Security Council, the Human Rights Council, the
High Commissioner for Human Rights, the Arab League, the Organization for Islamic
Cooperation, the Gulf Cooperation Council and the African Union all expressed their concern
regarding the situation in Libya and urged for violence to be ceased. The Security Council
approved resolutions 1970 and 1973, which referred the case to the International Criminal
Court, froze personal assets of leaders of the regime, established an arms embargo, demanded
a ceasefire, authorized all necessary means to protect civilians and civilian areas and imposed
an air exclusion zone over the Libyan territory.23 Although the resolutions were approved by
the Security Council, there was growing opposition to the way the intervention was carried
out by NATO, with accusations that the operation was pursuing political goals instead of

21
LUCK, E., 2010. Building a Norm: The Responsibility to Protect Experience. In: R. Rotberg, ed. 2010. Mass
Atrocity Crimes: Preventing Future Outrages. World Peace Foundation, Harvard Kennedy School Program on
Intrastate Conflict and Brookings Institution Press.
22
BELLAMY, A., 2010. The Responsibility to Protect Five Years On. Ethics and International Affairs, 24,
n. 2. Carnegie Council.
23
ADAMS, S., 2012. Libya and the Responsibility to Protect. Occasional Paper Series, n. 3. New York: Global
Centre for the Responsibility to Protect.
humanitarian ones; in other words, it intended to change the Libyan regime. For this reason
and further circumstantial factors, no other resolution enforcing the responsibility to protect
civilians was approved in the Security Council after the NATO intervention in Libya,
although many calls were made to intervene more vigorously in the Syrian conflict in order
to protect civilians from the use of chemical weapons.24

4. The Responsibility to Protect as Soft Law

The debate concerning the legal status of the concept of the Responsibility to Protect
is present since its inception, given that it was one of the main issues that led to the creation
of the International Commission on Intervention and State Sovereignty, and it is a discussion
far from being settled. Simon Adams (2013) argues that R2P is an established international
norm, which builds upon existing international human rights and humanitarian law; it does
not seek to impose new legal obligations upon states. (Adams, p. 110, 2013). His concern,
however, is focused on the political and practical consequences of the implementation of
R2P.25 Although not explicitly said by Adams, his argument can be understood as
recognizing R2P as soft law clarifying and further elaborating on existing hard law. Ramos
(2013), on the other hand, controversially defends that R2P is not only soft law, but also that
soft law is an autonomous source of contemporary international law, given the insufficiency
of traditional sources of international law to comprehend the whole legal framework and to
deal with contemporary international legal issues. In her understanding, the traditional
concept of sovereignty doesnt apply anymore to the reality of the contemporary international
society, which requires a revision of its definition. Although R2P has connections with jus
cogens norms, such as the prohibition of genocide, and with international conventions, such
as the Rome Statute, it cannot be considered to be a norm of such nature; therefore, it must
either be considered as a soft law norm or as an emerging customary norm.26

24
BROCKMEIER, S., STUENKEL, O. e TOURINHO, M., 2016. The Impact of the Libya Intervention Debates
on Norms of Protection. Global Society, v. 30, n. 1, p. 113-133.
25
ADAMS, S., 2013. Responsibility to Protect: Implementing a Global Norm towards Peace and Security.
Interviewed by Tomas Knigs, Junko Nozawa and Erica Teeuwen. [journal] Merkourios, Utrecht Journal of
International and European.
26
RAMOS, M., 2013. Responsabilidade de Proteger dos Estados e sua Dimenso Jurdico-Normativa.
Master. Faculdade de Direito da Universidade de So Paulo.
 Payandeh (2010), in an opposing view, argues that R2P cannot be classified as a
customary norm because its combination of legal, political and moral arguments gives it a
lack of clarity and precision, making it impossible to be entirely considered as a norm. R2P,
he further states, does not fit into the legal category of duty or obligation and encompasses
such an embracing range of commitments that it is hard to verify if state practice is influenced
at all by the concept or by parts of it. The author also argues that defining sovereignty as
responsibility isnt an innovation brought forward by R2P, but an existing understanding in
the international society; the way the ICISS report approaches the principle of sovereignty
intends to change its functionality, but not its legal essence. However, these shortcomings
shouldnt be understood as impeding R2P of having legal relevance, given that, as soft law,
it still has the potential to promote the formation of new customary law and to influence
existing legal norms, which could possibly change in light of the Responsibility to Protect.27
In sum, Payandeh states that From a legal perspective, the normative content of the
responsibility is, therefore, evolutionary rather than revolutionary. (Payandeh, p. 515, 2010)
Basaran (2014) brings forward a compelling case to define R2P as soft law, seeing it
not as a new concept, but as a modern version of an old story that is, humanitarian
intervention with a new label, one that favors minorities and redefines the limits of
sovereignty. (Basaran, 2014, p. 199) R2P was not created through the formal sources of
international law and lacks the precision, the creation of obligations and the existence of
independent third parties to interpret and enforce compliance with it something that could
also be observed in the case of the concept of humanitarian intervention. Its functionality,
therefore, depends on the interaction with existing norms and obligations regarding
sovereignty, use of force and protection of human rights, in an international legal scale of
shades of grey, where concepts and responsibilities outside the narrow class of rights and
obligations carry weight (Basaran, 2014, p. 203), and the obligations derived from it are
based on social and political pressure, a notion generally present in soft law instruments.28

27
PAYANDEH, M., 2010. With Great Power Comes Great Responsibility? The Concept of the Responsibility
To Protect Within the Process of International Lawmaking. Yale Journal of International Law, [online].
Available at: <http://digitalcommons.law.yale.edu/yjil/vol35/iss2/5> [Accessed 11 December 2017]
28
BASARAN, H., 2014. Identifying the Responsibility to Protect. The Fletcher Forum of World Affairs, v.
38:1, pp. 195-212.
 Another argument in favor of defining R2P as soft law is made by Pieper (2014), who
defends that the creation of the concept was a reaction to the commission of mass atrocities
in the context of an increasing centralization of the individual under the international law
structure; it was an adaptation process in the form of soft law outside the formal
international legal system , originated by the political shocks witnessed during the 90s that
raised the question on how to reconcile state sovereignty with humanitarian norms and
values. Pieper also rejects the claim that R2P is an emerging norm and believes that it is
probable that the Responsibility to Protect will never reach full legalization (Pieper, p.8,
2014), but this does not diminish its capacity of establishing an effective and coherent
framework to guide state practice regarding mass atrocities, nor denies that its foundations
can be found in existing hard law treaties, customs and principles that limit the exercise of
sovereignty.29 It is R2Ps essentially political nature that defines it as a soft law mechanism
aimed at facilitating compliance with previously agreed-to standards of behavior (Pieper,
p.75, 2014), or, in other words, the Responsibility to Protect is a concept of non-binding
origin that provides states with the political tools to fulfill their previous legal obligations
and properly address mass atrocities soft law, therefore.
However, this opinion is not a consensus among experts. Although they define the
Responsibility to Protect as soft law, Shaffer and Pollack (2011) argue that the relation
between R2P and existing hard law on the use of force and state sovereignty isnt one of
complementarity, but one of antagonism. To them, R2P isnt a development of, but a
contradiction to the UN Charter, a pattern of opposition that was also seen in the political
debates in the process of adoption and implementation of R2P by the United Nations. In other
words, in the clear incapacity of the international community to create new hard law norms,
the series of soft law documents that developed the concept of the Responsibility to Protect
academic reports and UN resolutions sought to potentially challenge and soften the
provisions on the UN Charter that outlawed the use of force and recognized the principle of
state sovereignty.30 The authors defend that based on the historical evidence surveyed, it is

29
PIEPER, P., 2014. Mitigating the Gap; the Responsibility to Protect as a soft law Mechanism. Master. [online]
City University of New York. Available at: <http://academicworks.cuny.edu/cc_etds_theses/318> [Accessed
11 December 2017]
30
SHAFFER, G., POLLACK, M., 2011. Hard Versus soft law in International Security. Boston College Law
Review, [online] Available at: <http://lawdigitalcommons.bc.edu/bclr/vol52/iss4/1> [Accessed 10 December
2017]
clear that the advocates of humanitarian intervention were indeed proposing a new legal
norm, which at a minimum requires a dramatic reinterpretation of the long-standing, hard-
law principles of state sovereignty and non-intervention. (Shaffer, Pollack, p. 1238, 2011)

5. Conclusion

As one can observe in this account of professional opinions on the legal nature of
the Responsibility to Protect, there is no settled consensus on how to classify it. However, it
would be accurate to say that it may be too bold to define R2P as an emerging customary
norm or to argue that soft law is an autonomous source of international law in the
contemporary international society. Based on the intentions of the states representatives that
approved the inclusion the adoption of R2P in the 2005 Outcome Document and on the
characteristics inherent to the concept, as well as its practical implementation internationally,
the most precise legal definition of the Responsibility to Protect is to include it in the growing
catalogue of soft law mechanisms.
Its practical relevance to humanitarian action goes beyond the limitation of
discussing its legal nature. Although it was adopted in a non-binding resolution, outside the
scope of the formal sources of international law, the Responsibility to Protect has had real
impact on the international narrative, on the way states behave and, most importantly, on the
lives of thousands of civilians who are threatened by the very crimes that humanity has
promised again and again to prevent and react. This has not been the case all the time,
however. Further legal elaboration of the concept and more political engagement with the
broadest range of actors as possible, including non-state actors, is necessary in order to
accomplish the results envisioned by the international society when it adopted R2P as a new
step towards make peace and human security more tangible to every human being.
6. References

ABBOTT, Kenneth W., DUNCAN Snidal, 2000. Three Things Distinguish Hard from soft
law. [online] Available at: <https://clg.portalxm.com/library/keytext.cfm?keytext_id=66>
[Accessed 10 December 2017]

ABBOTT, Kenneth W., DUNCAN Snidal, 2000. When Are States Likely to Prefer hard law
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