Back to p. 1 – The extension of the legally liable persons
The extension of the content of liability
The responsibility to protect human beings
The point is not only to know who is responsible but also for what. I intentionally use the expression “responsibility to protect”. This concept is recent within international law since it originated as an extension of humanitarian intervention in defence of peoples threatened by crimes such as crimes against humanity and war crimes. This new concept was adopted by the United Nations General Assembly in 2005 and it was used in the context of Libya to legitimate military action, originally disciplined by the clear limitations imposed by the Security Council resolution of February 2011.
In 2005, the States recognized the responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In 2009, i.e., the last time when the UN General Assembly dealt with the issue, the Secretary-General outlined a three-pillar strategy: individual State responsibility; commitment of the international community to assist States to fulfill their duty; and, lastly, responsibility of the international community to use all the appropriate diplomatic, humanitarian and other peaceful means to protect populations, as well as to be prepared to take collective measures. This strategy insisted upon the value of prevention and, in case the latter would not give results, on a “timely and flexible” response designed to meet the specific needs on a case-by-case basis.
While the theoretical construction of the responsibility to protect appears to be solid and logical, the practical methods of its application still show more than a few difficulties. Used in Libya in 2011, the responsibility to protect was later strongly criticized, especially because of the broad interpretation it was subjected to. For this reason, it was not used again in Syria. Thus, its application is not simple at all. Moreover, in most cases, the individual States act for their citizens, without allowing any intervention from the international community. Hence, we could ask ourselves if this concept was a stillborn, especially if we take into consideration, from a formal point of view, the role played by the very structure of the UN and its Security Council. In this regard arises the issue of the right of veto of the Member States of the Council: it is precisely through its use (and especially through the Russian and Chinese veto) that most of the resolutions concerning Syria were blocked in 2012. On the other hand, the abolishment of said right of veto does not seem to be conceivable for the moment. These are, therefore, the practical limits of the responsibility to protect.
Regardless of these, however, the concept, which is grounded on the universal values expressed by the UN, responds to a just idea. Thus, an in-depth reflection is much needed to make the UN institutions more efficient and avoid the excessively frequent situations of institutional paralysis.
Implementation of the responsibility to protect
By breaking a ten-year-long “silence”, in 2018 the UN General Assembly opened the first formal debate on the responsibility to protect. In his report, entitled Responsibility to protect: From early warning to early action, UN Secretary-General António Guterres suggested a strategy structured upon the following three points: to strengthen existing preventive capacities; to continue to promote accountability for atrocity prevention; to innovate through significantly expanding the involvement of civil society for atrocity prevention.
Once clarified, it would be interesting to apply the concept of “responsibility to protect” to the new centers of interest such as animals, the environment and future generations.
The responsibility to protect animals
In order to reach this point, it is undoubtedly necessary to move from the concept of rights, which implies reciprocity – we speak of “responsible party” and “victim” – to the concept of duty, which binds without reciprocity. This distinction is particularly important when it comes to the protection of animals – of some animals, since the “animal” category is extremely heterogeneous (the point is clearly not to protect bacteria as such). The issue is interesting: in my opinion, acknowledging rights to animals, as some envisage (see the 1978 Universal Declaration of Animal Rights), involves the same – and backwards in a way – risk of dehumanizing as when some human rights are refused to allegedly “incomplete” people. On the other hand, juridical responsibility grounded on the duty to protect animals allows to link hominization and humanization: hominization because animals are inseparable from the survival of humankind; humanization because this duty falls upon humanity since only mankind is capable of awareness and intentionality.
Hence the evolution of the law. The French criminal code added to the crimes against persons and property a new category containing precisely the protection of animals from brutality and cruel acts, which also cover acts of a sexual nature. For instance, a 2007 judgment convicted the owner of a pony for having practiced acts of sodomy on that poor animal, which could not, as the judges said, “exercise any expression of will and was thus transformed into a sexual object”. With some considerable foresight, the European Union refers to the welfare requirements of animals as sentient beings (see the Lisbon Treaty). A 2010 directive on the protection of animals used for scientific purposes moves along the same lines. A break from the dualistic conception emerges here, yet the distinction between human and non-human is still preserved: this is what matters.
The responsibility to protect the environment
Second example: the responsibility to protect the environment. This is currently enshrined in many constitutions. In France we find it in the 2005 Environmental Charter. Every person has the duty – the world duty rarely appears in texts of a constitutional nature – to contribute to the protection and improvement of the environment. The underlying idea is that of the human being as a temporary dweller on the planet1The French expression used by Mireille Delmas-Marty is “l’homme concessionnaire de la planète”.. The legal instruments keep on multiplying, in particular after the Earth Summit held in Rio in 1992 (biodiversity, climate change). Moreover, many other tools also exist: in the case of armed conflict, an intentional attack on the environment can constitute a war crime. An equally new instrument: the concept of “global public goods”, which is somewhat a synthesis between economics – these are collective, non-excludable and non-rivalrous goods – politics – they are public goods – and ethics – they are common goods. Applied to climate change, this concept marks an evolution for the need to increase the responsibility of the holders of global power, meaning those directly involved in climate change, that is, States in the first place and, secondly, private corporations.
COP 21: The awakening of the conscience of our community of destiny
COP 21 (21st Conference of the Parties to the 1992 United Nations Framework Convention on Climate Change) is neither a failure nor a success (Torre-Schaub 2017).
First, it represented gaining awareness. The international community acknowledged that its destiny – like that of all the living beings on the planet – heavily depends on human behavior since, in fact, disruption of the climate system is predominantly a human-induced phenomenon.
In addition to this, it also marked a methodological change. The international community realized that it is not sufficient anymore to conceive new concepts like during the last century, for instance with the “common heritage of humanity”, which appeared in the 1960s in relation to oceans, the Moon and other celestial bodies; or the “global public goods” and “global common goods” – concepts borrowed from the theorizing of economists of the 1980s (see the 1987 Report of the United Nations Development Programme) to identify the goods that are both non-excludable (can be used by everybody) and non-rivalrous (their use does not affect the use of others). These terminological innovations were not able to modify the balance of power. Namely, international law remained a quasi-monopoly of States, which defend their national interests and withdraw from treaties when such interests diverge from the global ones: suffice it to recall that Canada withdrew from the Kyoto protocol after being subjected to sanctions for violating its obligations.
Instead of proposing new concepts, the Paris Agreement establishes a process to attempt and preserve the future (and present) of our planet. It should not be interpreted as an isolated document, separated from the movement in which it takes place and without which it would not exist: it pertains to a dynamic process that, as such, must be regularly updated.
Currently, the agreement of 15 December 2015 does not represent a legal tool sufficiently unified and stable so as to produce a coherent set of norms, forms and dogmas. The norms emerge in the greatest disorder and accumulate on all levels (international global or regional, national, infra-national). Combined with a softening of forms in favor of a very complex interactive and dynamic law, the excess of norms contributes to the upheaval of the dogmas that we believed to be eternal, such as the independence of States as absolute sovereigns in their territory. The dismay of the jurists is understandable.
Yet, nonetheless, the Paris Agreement is an extraordinary bet on the future. The dynamic it produces is not always “virtuous”, but it invites us to recompose the legal field, and it seeks to build the future by combining the one and the multiple through a three-step movement: definition of common objectives, differentiation of responsibilities depending on the States and, finally, diversification of the actors with an increase of the strength of non-state actors.
The responsibility to protect future generations
When we come to the third example of what I have called “the new centers of interest”, i.e., the future generations, the process becomes even more complex. This formulation is in fact so vague that the legal framework varies according to the distance in time. By “future generations” we mean the generations that are destined not to meet: not our children or grandchildren, but those who will come after them. In this case, there is a duty to protect that binds us without reciprocity but, at the same time, requires us to anticipate future risks.