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Responsibilities and Obligations: Understanding the Legal Consequences of the UN Security Council's Failure to uphold its Responsibility to Protect

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Abstract

The legal nature of the Security Council's responsibility to maintain international peace and security and, by extension, its responsibility to protect, has been left relatively unexplored in academic literature. This paper seeks to reexamine the legal nature of the Security Council's primary responsibility, in order to determine whether the Council itself is under an obligation to act in response to threats to the peace and atrocities that fall within the scope of the responsibility to protect. By doing so, the paper sheds light on what a 'failure' of the Security Council's responsibilities might look like, and therefore whether there are any legal consequences to inaction. With reference to the construction and drafting of Article 39 of the UN Charter, this paper argues that the responsibility of the Security Council includes a legal obligation on the Council, at the very least, not to ignore situations that fall within the maintenance of peace and security.

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Responsibility to Protect: Political Rhetoric or Emerging Legal Norm? - Volume 101 Issue 1 - Carsten Stahn
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Report of the Secretary-General, Implementing the Responsibility to Protect, UN Doc A/63/677, 12 th
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See, Report of the Secretary-General, Implementing the Responsibility to Protect, UN Doc A/63/677, 12 th January 2009, at 8-9 and section IV.
Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security
UNGA Res 46/59 (1991) Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, 9 th December 1991, UN Doc A/RES/46/59.
Jury and Executioner -Analysing the Nature of the Security Council's Authority Under Article 39 of the UN Charter
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Selkirk, M, 'Judge, Jury and Executioner -Analysing the Nature of the Security Council's Authority Under Article 39 of the UN Charter', (2000-2003) 9 Auckland University Law Review 1101
Statements of Questions by the Delegate of New Zealand and Replies by the Delegate of the United Kingdom at Ninth Meeting, Committee III/1, Doc WD3, Mat 17 th 1945
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See, Statements of Questions by the Delegate of New Zealand and Replies by the Delegate of the United Kingdom at Ninth Meeting, Committee III/1, Doc WD3, Mat 17 th 1945, 11 UNCIO 317, at 7-9.
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Although, see Sarooshi (n.14) at 28-31, and footnote 108; see also Abass (n.16) at 136, arguing the use of these police powers can only be used on a collective basis.
Mobilizing Collective Action: The Next Decade of the Responsibility to Protect
Report of the Secretary-General, Mobilizing Collective Action: The Next Decade of the Responsibility to Protect, (22 July 2016) UN Doc A/70/999-S/2016/620, at [45].
  • Ibid
Ibid, at [47]; see also, Report of the Secretary-General, Responsibility to Protect: Timely and Decisive Response, (25 th July 2012) UN Doc A/66/874-S/2012/578, para [22] and [27].
Letter from Ambassador Bolton to UN Member States Conveying U.S. Amendments to the Draft Outcome Document Being Prepared for the High Level Event on Responsibility to Protect
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See, Letter from Ambassador Bolton to UN Member States Conveying U.S. Amendments to the Draft Outcome Document Being Prepared for the High Level Event on Responsibility to Protect, 30 th August 2005, available at <http://www.responsibilitytoprotect.org/files/US_Boltonletter_R2P_30Aug05%5b1%5d.pdf>, at 1.
United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers
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Sarooshi, D, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford University Press, 1999).