The Responsibility to Protect When the UN Security Council Fails to Act: Is there Room for a Tertiary Responsibility?

In the 2005 World Summit Outcome, the international community accepted the emerging notion of the ‘responsibility to protect’. The world recognised a primary responsibility on States to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Additionally, they recognised a ‘secondary’ responsibility on the international community, including the United Nations, to assist and encourage States in their primary responsibility to protect. The emergence of the ‘responsibility to protect’ is a relatively new development in international law - it is at the frontline of the international community’s efforts towards ensuring that States adhere to the principles of international law in response to mass atrocities within their own jurisdiction. It also calls for the wider international community to act in responding to such situations, highlighting legal and legitimate foundations upon which to assist or intervene when a State fails in its primary responsibility. However, if both the State (with a primary responsibility) and the Security Council (with a secondary responsibility) fail to act in response to the said mass atrocities, it may be difficult, if not impossible, for the international community to take appropriate action – especially if the use of military force is required. Therefore, this thesis will look beyond the Security Council for legal alternatives to its inaction. It shall assess popular arguments for alternative routes within the UN, such as through the General Assembly, and also outside of the UN system too, whether unilaterally or through regional organisations. With the fundamental principles of the prohibition of force and non-intervention as the focus of legal analysis, the original purpose of the UN collective security system will be traced from the origins of the Charter so that previously-rejected theories may shed new light on the interpretation of these important legal foundations. By evaluating the legality, and indeed the appropriateness, of options outside of the Security Council, the thesis will provide an opportunity to ask whether such alternatives can, or should, form part of a ‘tertiary’ responsibility to protect. Through its investigation, the thesis determines that there are legal avenues for establishing such a tertiary responsibility to protect, and identifies the relevant actors who have legal competence to implement it.