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84 Tul. L. Rev. 219 (2009-2010)

handle is hein.journals/tulr84 and id is 223 raw text is: TULANE LAW REVIEW VOL. 84 DECEMBER 2009 No. 2 Reconstructing the Responsibility To Protect in the Wake of Cyclones and Separatism Jarrod Wong* Tis Ar'icle reconceptualizes the doctine of the responsibii(y to protect (R2P). R2P provides that when a government fails to protect its citizens from genocide, war crimes, ethnic cleansing or crimes against humanity ('!nass atvcities', that responsibility si'fts to the international community acting through the United Nations The UN's apparent farhure to include natural disasters in the catalogue of harms potentiallyjustifying R2P intervention generated considerable controversy following Myanmar refusal of foreign aid following the devastation wrought by Cyclone Nargis. Those seeking to limit the scope of R2P considered it inapplicable in the case of Myanmar, reading the UN s focus on mass atrocities as a conscious decision to exclude natural disasters as trggers for R2P By conftas4 supporters ofR2P looking to rely on the doctrine to compel Myanmar to accept aid have argued that there is no meaningful ihstinction between the failure to protect following natural disasters and the failure to protect from mass atrocities. Tis Article shows that the causes of the harm are irrelevant Developing what it labels a constuictive interpretation of R2P, the Article demonsrates that R2P applies equally to a state failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity Tis thesis is advanced through the novel application of fundamental criminal law principles to the regime of international human ights, * © 2009 Jarrod Wong. Assistant Professor, University of the Pacific, McGeorge School of Law; J.D., University of California at Berkeley (Boalt Hall), 1999; LL.M., University of Chicago, 1996; B.A. (Law), Cambridge University, 1995. A version of this Article was presented at the 2009 Association of American Law Schools (AALS) Annual Conference, having been selected in a call for papers by the AALS International Human Rights Law Section. I am indebted to Afra Afsharipour, Raquel Aldana, Angela Banks, Linda Carter, Miriam Cherry, Omar Dajani, Marjorie Florestal, The Honorable Fausto Pocar, Shruti Rana, John Sims, and Emily Garcia Uhrig for their helpful comments. Many thanks additionally to Helen Stacy and the other participants at the meeting of Northern California International Law Scholars held at the University of California, Davis, School of Law for their comments on this Article. I am also grateful for the library assistance provided and coordinated by Paul Howard, as well as David Brownfield for his research assistance. All opinions and errors remain my own. 219

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