Wednesday, March 14, 2007

Soft state responsibility?

Amid the awful account of human suffering and international inertia contained in the just-released Report of the High-Level Mission on Darfur may be found an intriguing theory of state responsibility, a matter of recent concern in the Bosnia v. Serbia case. The U.N.-commissioned report states that Sudan has a "responsibility to protect ... its population from genocide, war crimes, crimes against humanity and ethnic cleansing"; and if the state cannot or will not discharge this duty, "it is the responsibility of the international community to take action to ensure effective protection."(¶¶ 2, 19-20, emphasis in original) That duty is derived from a mélange of sources: (1) Sudan's acceptance of similar language in ¶¶ 138-139 of a multilateral declaration, the U.N.'s 2005 World Summit Outcome; (2) the U.N. Security Council's reaffirmation of that declaration; (3) Sudan's signing of human rights treaties that it has not ratified; (4) Sudan's adoption of communiqués and peace agreements related to Darfur; and (5) Sudan's national laws.
One would have hoped for a more concrete fixing of state responsibility. Reliance on law that seems softer appears at 1st blush to ease the weight of the burden Sudan must shoulder. One would have thought that Sudan's joinder of peace agreements established the necessary duty. If those internationally negotiated agreements indeed fail to establish this duty, that failure is yet another indicator of the international community's larger and longstanding failure in Darfur.

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