The Moral Authority Paradox: Universalism, Sovereignty, and the Polictical Limits of the Responsibility to Protect

Abstract The Responsibility to Protect R2P is one of the most promising efforts in modern international law to reconcile the need to protect individuals with the principles of state sovereignty and non-intervention. Born in the 2001 report of the International Commission on Intervention and State Sovereignty ICISS and formally endorsed by the Heads of State and Government in paragraphs 138 and 139 of the 2005 World Summit Outcome Document, R2P reinterprets sovereignty as a responsibility to prevent genocide, war crimes, ethnic cleansing, and crimes against humanity. At the same time, however, R2P lives in a world of international law, where decisions are made in a decentralized manner, and force is regulated through the political consent of States. This paper will explore what the author calls the Moral Authority Paradox, namely, the idea that international law finds itself in a situation where it needs the moral authority of the international community to stop mass atrocities but relies on the sovereignty principle to actually intervene. The paper will argue that the paradox cannot be resolved by simply reinterpreting sovereignty from a right to rule to a responsibility to rule. Even though R2P represents a major step toward universal humanitarian principles, it does not have the legal force to override international law. The 2005 consensus does not create a legal right to humanitarian intervention but rather codifies a norm within international law. By analyzing the doctrines of sovereignty, non-intervention, collective security, international responsibility, and the normative status of R2P, this paper will attempt to answer the question of whether international law can effectively transform universalistic values into law. The paper will also distinguish between the law as it is (lex lata) and the law as it should be (lex ferenda) to demonstrate the ways in which the moral authority of R2P may override its legal status. In this sense, the paper will focus on the theoretical aspects of R2P, discussing its potential as an emerging universal norm without claiming that it has the status of customary international law or that it completely de-links sovereignty from intervention. The paper will conclude that the main problem with R2P is not that it leaves sovereignty intact but that it creates a situation where moral, legal, and coercive authority are placed in different realms without a mechanism to reconcile them. The principle of responsibility to protect can be used to advance universal humanitarian goals but requires further development as an international legal norm. Unless the international community wants humanitarian interventions to be dictated by the political whims of States, it needs to develop a mechanism that would balance the principles of sovereignty, international responsibility, and the right to intervene.