Where is R2P grounded in international law? Anne-Marie Judson A ...

place between two parties, and the state is committing grave crimes that do not
constitute genocide or war crimes, it cannot therefore constitute a threat to
international peace and security within these criteria, and the Security Council may
have little legal standing in international customary law to intervene. There may be
legal remedies that other state parties to the Conventions can use to bring the
situation to the attention of the International Court of Justice and therefore the
Security Council but the threat must constitute a real threat to international peace
and security. The question then must be asked, does a state of emergency constitute a
threat to international peace and security? This question will be addressed after
analyzing the next section on state application to derogations.
AN ANALYSIS OF DEROGATIONS OF THE STATE OF EMERGENCY
Under the ICCPR it is the state’s responsibility to ensure compliance with the
requisites on derogations under Article 4. The state must first identify that an
emergency exists that is a threat to the public or to the state as a whole. The state
must then identify the reasons not in general but in detail of why it wants to derogate
from certain provisions and which articles those pertain to under the ICCPR. The
state must then advise the Secretary-General and other state parties through a
declaration that must declare the above. A minimum statistical analysis shows how
many states have derogated and declared their derogations to the Secretary-General
since 1966. 360 This section will provide a number of details that pertain to requisites
of intervention under the guise of R2P.
WHAT ARE THE MOST COMMONLY USED ARTICLES/DEROGATIONS?
First there are 34 countries that have declared derogations from Article 4 since 1966.
The majority of these states are currently in breach of the ICCPR by not declaring all
the information that is required of them to derogate from the provisions under the
ICCPR. They declare that they are under a state of emergency; beyond this
requirement they do not say why, or for what, or from which derogations or from
which Articles that they are derogating. Finally, many states either omitted to declare
when the state of emergency has actually finished or have chosen to continue with the
state of emergency for an indefinite period of time.
360 See Appendix for data collected for research statistics.
109