Where is R2P grounded in international law? Anne-Marie Judson A thesis submitted for the degree ...

197 Pages·2012·0.82 MB·English

Where is R2P grounded in international law?

Anne-Marie Judson

A thesis submitted for the degree of

MASTER OF ARTS

at the University of Otago, Dunedin,

New Zealand.

27th January 2012
ABSTRACT
The Responsibility to Protect doctrine (R2P) is not a new practice of international
customary law, It has grounding in international law. This can be shown through an
analysis of international humanitarian and human rights law. This research shows
that states have responsibilities, duties and obligations in international law to prevent
and protect their citizens from harm. It also shows that R2P as a concept, does not
add anything new to existing international customary norms on war crimes, crimes
against humanity, genocide and ethnic cleansing. R2P reinforces these duties by
declaring them and it is not distinctive in any way from the responsibilities already
inherent in the Charter of the United Nations, the International Court of Justice
Statute, the Geneva Conventions, and Vienna Convention on the Law of Treaties,
the Nuremberg Charter, the Hague Conventions or any other international
customary norm in international law related to humanitarian or human rights law.
The legal status of R2P is limited to the crime of genocide and war crimes, On the
other hand crimes against humanity and ethnic cleansing must also be clearly
identified within these two frameworks and not be separated from them. This research
also shows that the justification for intervention into a state is limited to war crimes
under the Nuremberg, Hague and Geneva Conventions, and genocide is limited to
the Genocide Convention.
R2P is not a new idea, It has been at the heart of the United Nations General
Assembly discussions since 1946. Thus credit must be given to the International Law
Commission and their magnum opus over the past 70 years on the responsibilities of
states. The Security Council is the only means through which a state can legally
intervene in the affairs of another state. This is determined by the legalities of a breach
of International Peace and Security. Each participatory state of the United Nations is
responsible for supplying in a timely manner the ‘means necessary’ to the Security
Council to implement their decisions for the maintenance of International Peace and
Security. These responsibilities have not changed, They are firmly grounded in
international law.

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ACKNOWLEDGEMENTS

Firstly I would like to thank the National Centre for Peace and Conflict Studies for
giving me the opportunity to explore notions of peace research. Secondly and
conjointly I would like to thank Dr Heather Devere and Professor Kevin Clements for
supporting me and encouraging me to pursue further studies, in my area of interest. I
would also like to thank the Aotearoa New Zealand Peace and Conflict Studies
Centre Trust and the University of Otago for funding the National Centre. Also I
would like to acknowledge the proofreading work done by Claire Stevens. Lastly and
certainly not least I would like to thank my family, Andrew, Antonia-Maria and Blake
for their silence, encouragement and love when it was needed most. I am forever
indebted.
Thank you to everyone who has supported me and helped me along the way.

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TABLE OF CONTENTS
1. INTRODUCTION - Treaties are not empty gestures states have obligations in
international law. Principal research findings. Page 7
1.0.1 The chapters. P.8
1.0.2 Thesis application. P.9
1.0.3 How does international law link to the Responsibility to
Protect doctrine? P.11
1.0.4 Accreditation – modern and historical influences. P.14

2. CHAPTER 1 – BACKGROUND - A HISTORICAL PERSPECTIVE.
2.0.1 Background - What historical notions of responsibility
existed within the United Nations before the 2005
World Summit outcome? How does this link in with
R2P? P.17
2.0.2 A historical perspective of responsibility. P.21
2.0.3 Jurisprudence and codification of the principles of
international law governing state responsibility within
the International Law Commission proposals. P.26
2.0.3 Summary of chapter 1. P.33

3. CHAPTER 2 - RIGHTS, DUTIES AND RESPONSIBILITIES OF
STATES – THE MODERN VIEW. P.35
3.0.1 The final draft articles of the International Law
Commission on the Responsibility of States for
Internationally Wrongful Acts (2001). An analysis
3.0.2 Is the act an internationally wrongful act of the state?
P.36
3.0.3 What are the elements of an internationally wrongful
act? P.38
3.0.4 Can the state use internal or municipal law as a defence
for violations of international law? P.39
3.0.5 What attributions of conduct place the state at fault in
international law? P.40

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3.0.6 What factual relationships must be in place to attribute obligations on
the state? P. 47
3.0.7 What happens when there is an absence of governmental control? P.49
3.0.8 Can attribution be placed on a state ab initio? P.52
3.0.9 Summary of chapter 2. P.54

4. CHAPTER 3. THE RULE OF LAW - A DESCRIPTIVE ANALYSIS. P.57

4.0.1 What rules in law provide us with foundations for application of
contract on Treaty Law? P.60.
4.0.2 What remedies do contracting parties have in relation to a breach or a
violation of a treaty provision? P.63.
4.0.3 What is international customary law? P.64.
4.0.4 Which international laws, (conventions, treaties or statutes) best explain
and define crimes against humanity, war crimes, ethnic cleansing and
genocide? P.67
4.0.5 The crime of ethnic cleansing. P.68
4.0.6 The crime of genocide. P.72
4.0.7 War crimes. P.75
4.0.8 Crimes against humanity. P.90

4.0.9 Summary of chapter 3. P.95

5. CHAPTER 4. STATE DEROGATIONS - AN APPLICATION ANALYSIS.
P.97
5.0.1 The International Covenant on Civil and Political Rights (1966) P.98
5.0.2 Prohibited violations. P.99
5.0.3 Non-prohibited violations. P.100
5.0.4 Criteria for a state of emergency for derogations. P.104
5.0.5 An analysis of derogations for the state of emergency. P.109
5.0.6 What are the most commonly cited/used articles for derogations?
P.109

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5.0.7 What are the reasons given for a state of emergency? P.111
5.0.8 How many states are in breach of the iccpr due to not identifying the
reasons for the state of emergency? P.112
5.0.9 Can any of these situations be interpreted as a reason for intervention?
P.114
5.0.10 What happened to civilian rights? P.115
5.0.11 How does this affect R2P application? P.115
5.0.12 Discussion – Where do we go from here? Further considerations. P.117

6. CHAPTER 5 – CONCLUSION. P.123

7. BIBLIOGRAPHY
7.0.1 Primary resources. P.129
7.0.2 Secondary resources. P.132
7.0.3 Table of legal contents. P.135
7.0.4 Multilateral treaties and other documents (Signatories and parties).
P.137
8. APPENDIX. P.142
8.0 Digital online database on armed conflict. P.142
8.0.1 International law commission (yearbooks). P.148
8.0.2 United Nations digital resources. P.151
8.0.3 Security Council resolutions. P.154
8.0.4 Security Council resolutions (By country and year) P.162
8.0.5 Derogations of States from 1966 to 2012 ICCPR (1966). P.190

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INTRODUCTION – Treaties are not empty gestures states have obligations in international law.
PRINCIPAL RESEARCH FINDINGS
The principal findings of this research show that states are subject to international
customary law. They are dependent on their bilateral and multilateral relationships in
contract and their sovereignty is subject to their compliance with international law.
State legitimacy is found to be dependent on state actions, which include its
responsibility to prevent and to protect its citizens from harm.
Treaties are not empty gestures: they are agreements that bind the state to duties,
obligations and responsibilities in international law. States are restrained in their
affairs and their objectives by their obligations to protect and prevent breaches and
violations. These obligations include implementing the treaties, statutes and
conventions they are a party to, into their local jurisdiction, local education and
military programmes. These agreements that they choose to make, contain prevention
applications and they include obligatory non-discrimination rights. The practices that
the state must not engage in include genocide and war crimes, Crimes against
humanity are non-derogatory as they amount to breaches of international peace and
security. The Security Council can implement resolutions to enforce compliance with
these international laws and norms to intervene in a state where rights are being
abused and international law is being violated.
These rules of law have not changed. The responsibilities of states are not new ideas
or practices but are firmly grounded in international law, both in application and in
principle. This research helps to clarify that states have responsibilities in international
law to refrain from committing atrocities. These obligations extend to supplying the
Security Council with the means necessary to conduct and complete the application to
restrain a state in violation of their duties. These are not just responsibilities: the state
is bound to act in a manner consistent with international law as a party to the United
Nations Charter and the Statute of the International Court of Justice (1945). These
obligations are well documented and the Security Council has shown its willingness to
follow through, to prevent abuse and protect these duties in international law. This
research shows how the Responsibility to Protect (R2P) doctrine adds nothing new to
these duties and obligations. It provides a declaration to remind states of these duties.
R2P cannot enforce these duties because it is not international law in its own right, It

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is grounded in international law and it is restricted by these obligations to comply.
This research also shows how ethnic cleansing and crimes against humanity are not
separate from genocide and war crimes. They are additional to these and cannot as
yet be used alone to justify intervention.
Lastly this research shows how during a state of emergency some rights may be
derogated from in international law. The International Covenant on Civil and
Political rights shows us how states can use the state of emergency to divert and legally
refrain from international customary laws under certain provisions. This means under
these circumstances it may be illegal to intervene in a state where the state is clearly
not committing war crimes and or genocide even though it may be suspected of
collective abuse of civilian rights. If the international community cannot prove that
the state is in a conflict with another party under the Geneva Conventions the state
cannot be accused of committing war crimes during a state of emergency. This
research clarifies these points under four chapters.
THE CHAPTERS
The first chapter clarifies that R2P is not a new idea but that it is well grounded in the
United Nations General Assembly (GA) discussions and the International Law
Commission’s work on responsibilities of states since 1946. The second chapter
explores the rights and duties of states under international law. It clarifies the elements
of internationally wrongful acts of a state, as well as attributions of conduct, defences
in international law, factual relationships between the state and subject and situations
when there is an absence of governmental control. This Chapter focuses on the
International Law Commissions work from the 1960s through to 2001. The third
Chapter clarifies the foundations of law that are applicable to R2P. This includes the
Charter of the United Nations and the International Court of Justice Statute, (1945)
as well as the Vienna Conventions on the Law of Treaties (1969). Lastly it clarifies the
limits of ethnic cleansing, genocide, war crimes and crimes against humanity. The
fourth chapter focuses on the International Covenant on Civil and Political Rights
(1966) and the state of emergency. It includes prohibited and non-prohibited
violations and a section on the statistical approaches of states during a state of
emergency since 1966. This research clarifies that states regularly breach and violate
international law and that the Security Council and United Nations is limited in their

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frameworks to intervene in a state, which is not committing war crimes or genocide. It
is followed by a section on civilian rights and lastly considers where we go from here.
The conclusion summarises material from the previous Chapters.
THESIS APPLICATION
Prior to the intervention by the North Atlantic Treaty Organisation (NATO) with
Security Council approval in Libya in 2011, there had been a tremendous amount of
application invariance of the Responsibility to Protect (R2P) doctrine (2005) by the
United Nations Security Council and the United Nations member states.1 This
invariance extended to the academic and political community. One apparent case of
this can be seen in the data collected from United Nations discussions on R2P post
2005 and academic discourse post 2001 regarding the International Commission’s
work on State Sovereignty and State Intervention. This discourse and observational
or application invariance led the author to conduct research into the legal application
of the Responsibility to Protect (R2P) doctrine from the 2005 World Summit outcome
document, paragraphs 138 and 139.
The research has been limited to the Rule of Law to human rights and humanitarian
law as customary international law to the application of the R2P. This also meant
restricting the research by eliminating academic non-legal and political commentaries

1
 See
 for
 example
 variations
 in
 approaches
 and
 debates
 from
 member
 states
 and
 NGO’s
 on
 R2P.

United
 Nations
 document
 A/63/PV.97,
 General
 Assembly
 debates
 on
 R2P,
 97th
 plenary
 meeting,

Thursday
 23
 July
 2009,
 3pm
 New
 York,
 as
 well
 as
 A/63/PV.100,
 General
 Assembly
 debates,
 100th

plenary
 meeting,
 Tuesday,
 28
 July
 2009,
 10am,
 New
 York;
 A/63/PV.98,
 98th
 plenary
 meeting,

Friday,
 24
 July
 2009,
 10am,
 New
 York;
 A/63/PV.99,
 99th
 plenary
 meeting,
 Friday,
 24
 July
 2009,

3pm,
 New
 York;
 A/63/PV.101,
 101st
 plenary
 meeting,
 Tuesday,
 28
 July
 2009,
 3pm,
 New
 York;

A/63/677
 United
 Nations
 General
 Assembly
 sixty-­‐third
 session,
 Agenda
 items
 44
 and
 107,
 12

January
 2009,
 Report
 of
 the
 Secretary-­‐General,
 Implementing
 the
 Responsibility
 to
 Protect;

A/64/PV.89,
 United
 Nations
 General
 Assembly,
 89th
 plenary
 meeting,
 Friday,
 21
 May
 2010,
 10am,

New
 York;
 A/64/PV.88,
 United
 Nations
 General
 Assembly
 sixty-­‐fourth
 session,
 88th
 plenary

meeting,
 Thursday,
 20
 May
 2010,
 3pm,
 New
 York;
 A/63/PV.105,
 United
 Nations
 General

Assembly
 sixty-­‐third
 session,
 105th
 plenary
 meeting,
 Monday,
 14
 September
 2009,
 10am,
 New

York;
 A/HRC/18/NGO/86,
 United
 Nations
 General
 Assembly,
 Human
 Rights
 Council,
 Eigteenth

session,
 Agenda
 item
 3,
 Joint
 written
 statement
 submitted
 by
 the
 Indian
 Movement
 ‘Tupaj
 Amaru’,

a
 non-­governmental
 organisation
 in
 special
 consultive
 status,
 the
 World
 Peace
 Council,
 a
 non-­
governmental
 organisation
 on
 the
 roster;
 E/C.2/2009/2/Add.3,
 United
 Nations
 Economic
 and

Social
 Council,
 Committee
 on
 Non-­‐Governmental
 Organisations,
 2009
 regular
 session,
 19-­‐28

January
 2009,
 Quadrennial
 reports
 for
 the
 period
 2004-­2007
 submitted
 by
 non-­governmental

organisations
 in
 consultive
 status
 with
 the
 Economic
 and
 Social
 Council
 through
 the
 Secretary-­
General
 pursuant
 to
 Council
 resolution
 1996/31;
 A/HRC/10/NGO/71,
 United
 Nations
 General

Assembly,
 Human
 Rights
 Council,
 teenth
 session,
 Agenda
 item4,
 26
 February
 2009;
 A/65/PV.15,

United
 Nations
 General
 Assembly,
 sixty-­‐fifth
 session,
 15th
 plenary
 meeting,
 Friday,
 24
 September

2010,
 3pm,
 New
 York.

  9
from the application, the purpose being to view R2P as international law. To do this,
R2P application had to be grounded in customary international law. The two
paragraphs from the World Summit outcome document (paragraphs 138 and 139) are
the obiter dictum of the United Nations member states on R2P. The purpose of
application is to prevent genocide, crimes against humanity, ethnic cleansing and war
crimes and to intervene when necessary and possibly by force. In law the paragraphs
are not considered as binding, however, as will be shown, the underlying customary
laws that predate the paragraphs are binding on states. Prior to the unanimous
decision to adopt these paragraphs the debates on R2P were grounded in the
Canadian International Commission on State Sovereignty and Intervention (2001).
This extensive report gave rise to the tenet that R2P was a new idea, however through
the application of research and analysis most academics now agree it is indeed a very
old idea going back much further than previously realised.
Although the debate on R2P descriptions has now waned substantially, information
on its application to enforce legal duties by political academics is limited. The legal
discourse however is not as limited and can be seen as progressively active. This
progression did not start with the International Commission on State Sovereignty and
Intervention (2001) as some may still believe but much earlier, predating the 1900s
and then from the first sessions between the United Nations General Assembly
(UNGA) and the International Law Commission (ILC) meetings in 1946.
This thesis analyses the progressive international legal discourse by explaining the
historical aspects of the Responsibility to Protect doctrine in a manner consistent with
international law on state responsibility. This is done in the first chapter through the
analysis of documents and discourse between the United Nations and the
International Law Commission. The articles show a comprehensive database of
preparatory collective research on the responsibility of states and its application to
international law. This collection of international discourse on international law
collates into well-known customary international norms. Much of the earlier discourse
clarifies the behaviour of modern day states and the notion of intervention. It also
clarifies where the responsibility of states originated and how that is applied today in
the International Court of Justice hearings especially to obiter dictum and opinion juris of
the court to genocide, crimes against humanity and war crimes.

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