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

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these states were in breach of their duties to do so and would have benefited from declaring the state of emergency during these periods, even though genocide and war crimes are not covered as derogations under the ICCPR. The citizens would have benefited also as this could be seen as a breach and pose a threat to international security. Provisions for a time limit on the state of emergency should be in place; although the measures are temporary many states continue to use the protection of the Covenant for extended periods of time. CAN ANY OF THESE SITUATIONS BE INTERPRETED WITHIN R2P AS A REASON FOR INTERVENTION? As argued above all states have responsibilities in international law to implement and carry out provisions for prosecutions of war crimes and genocide under international customary law. However it has also been noted that ethnic cleansing and crimes against humanity must come within the limits of these two provisions. The ICCPR research has shown that derogations are possible during a state of emergency, however the state is restricted by the rules of application. However some states do not comply with these rules, furthermore some are still derogating from some civil and political rights that are supposed to be protected by international law. Some of these situations may incorporate the Geneva Conventions by proxy. This is because they could be seen as situations that involve armed conflict between two or more parties. If the derogations turn into war crimes, there is no problem in finding the connection between the R2P framework and an intervention into the state that is not protecting their citizens from harm. On the other hand there are also political uprisings, strikes and other internal conflicts that do not come within the frameworks or jurisdiction on war crimes. The reason why they do not fall within these frameworks is because they are not situations that concern international conflict between two parties until there is an identifiable party that is seen as the ‘other’ party. A party is not individuals or civilians that are unorganized in a political uprising, peaceful protest or strike union. The Geneva Conventions clearly say there must be an organized group, identifiable by name flag or patch and they must be carrying their arms openly. This is problematic to R2P because it only allows intervention on the premise that there is a threat to international peace and security. Based on the customary laws already explored, this 114
means that it would be illegal to intervene in a state that was not causing a threat to the peace by committing war crimes or genocide. On the other hand if the breach or violation of an international customary norm was being exploited by a state and that created a threat to international peace and security then the Security Council and the General Assembly could intervene in the state due to the breach. The breach would have to be identified and then the Security Council would have to decide whether it constituted a breach substantial enough under the provisions outlined in the Charter. WHAT HAPPENED TO CIVILIAN RIGHTS? As mentioned above civil and political rights of civilians are protected under the ICCPR during peaceful periods. However during a state of emergency they can be limited, derogated from and possibly abused due to the exigencies of the situation pronounced by the state. The rules are clear however the boundaries are not as states often breach and violate the provisions. As long as the state is protecting the right to life, refraining from genocide and war crimes, the derogations are legal. The civilian is subject to the wills and concerns of the state. Civilian rights are effectively removed during this period. Unless the state is breaching an international customary law, civilians have very little protection in a state of emergency situation. HOW DOES THIS AFFECT R2P APPLICATION? R2P is subject to international customary laws and norms. As discussed its provisions must be within the criteria of existing general international law. R2P does not exist outside of the Security Council or the General Assembly. It is restricted by the principles and purposes of the Charter of the United Nations and the Statute of the International Court of Justice. It must comply with the Vienna Convention on the Laws of Treaties and the Geneva Convention on the rules of war. It also must be framed within the Genocide Convention for crimes against humanity or the Genocide Convention for ethnic cleansing. Lastly it is restricted by the ICCPR where states may derogate from civil and political rights normally protected under the human rights framework. If the situation does not sit within these frameworks then it would be considered as being outside of the legal frameworks provided for a legal intervention to take place. 115
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Where is R2P grounded in internatio
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ACKNOWLEDGEMENTS Firstly I would li
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3.0.6 What factual relationships mu
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INTRODUCTION - Treaties are not emp
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frameworks to intervene in a state,
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HOW DOES INTERNATIONAL LAW LINK IN
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intervention 4 and agrees more alon
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International Commission on State S
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considered jus cogens. 21 They did
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World Summit outcome document on R2
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of states is, in fact, the entire d
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Treaties (1969) now considered as c
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JURISPRUDENCE AND THE CODIFICATION
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Amador realised in the 1950s that i
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international organisations he said
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within the secondary category, it d
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CHAPTER 2 - RIGHTS, DUTIES, AND RES
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any obligation of whatever origin g
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diplomatic and consular staff. 97 T
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The state itself is not necessarily
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of international law, the conduct o
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not the receiving state. Situations
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that have been integrated to preven
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planning and supervision of militar
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obligation of that state”. 135 Th
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This shows that a breach is not lim
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The omission or failure to act ties
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nature by conjointly agreeing to bo
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or violation of international law t
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etween the reserving state and acce
Page 64 and 65: WHAT IS INTERNATIONAL CUSTOMARY LAW
Page 66 and 67: against Women (2005). In addition s
Page 68 and 69: THE CRIME OF ETHNIC CLEANSING The R
Page 70 and 71: extends to ensuring that political
Page 72 and 73: This convention seeks to ensure tha
Page 74 and 75: towards a group as such, required b
Page 76 and 77: are protected under this convention
Page 78 and 79: convention or not. This responsibil
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Page 82 and 83: No propaganda or pressure is allowe
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Page 86 and 87: military objectives at all times. R
Page 88 and 89: military warfare then the civilian
Page 90 and 91: the Geneva conventions, constitutes
Page 92 and 93: crimes against humanity, the acts r
Page 94 and 95: This situation also constituted “
Page 97 and 98: CHAPTER 4 - APPLICATION AND STATE D
Page 99 and 100: that the present Covenant does not
Page 101 and 102: provisions are also included. 319 D
Page 103 and 104: other media. 331 During a state of
Page 105 and 106: institutions. 340 It says that inte
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Page 111 and 112: eformation under Article 13 covers
Page 113: France declared a state of emergenc
Page 117 and 118: DISCUSSION - WHERE DO WE GO FROM HE
Page 119 and 120: egional organisations as appropriat
Page 121 and 122: peace. It would appear that there w
Page 123 and 124: CONCLUSION At first glance R2P appe
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Page 127 and 128: were found to be a part of war crim
Page 129 and 130: BIBLIOGRAPHY (PRIMARY RESOURCES) In
Page 131 and 132: BIBLIOGRAPHY (PRIMARY RESOURCES) Un
Page 133 and 134: BIBLIOGRAPHY (SECONDARY RESOURCES)
Page 135 and 136: TABLE OF LEGAL CASES All cases can
Page 137 and 138: MULTILATERAL TREATIES, AND OTHER DO
Page 139 and 140: 4. Resolution 1894 - S/RES/1894 (20
Page 141 and 142: Injurious or to have Indiscriminate
Page 143 and 144: Hague III - Adaptation to Maritime
Page 145 and 146: UNIVERSITY OF MINNESOTA United Nati
Page 147 and 148: INTERNATIONAL COURTS INTERNATIONAL
Page 149 and 150: INTERNATIONAL LAW COMMISSION YEAR B
Page 151 and 152: UNITED NATIONS DIGITAL RESOURCES UN
Page 153 and 154: CONVENTION ON THE NON-APPLICABILITY
Page 155 and 156: SECURITY COUNCIL RESOLUTIONS BY YEA
Page 157 and 158: SECURITY COUNCIL RESOLUTIONS - ARME
Page 159 and 160: 2001 http://www.un.org/Docs/scres/2
Page 161 and 162: MAINTENANCE OF INTERNATIONAL PEACE
Page 163 and 164: BOSNIA AND HERZEGOVINA - Please not
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UNSC Resolution 1256 (1999) http://
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BURUNDI UNSC Resolution 1959 (2010)
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DEMOCRATIC PEOPLES REPUBLIC OF KORE
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IRAQ 2011 UNSC Resolution 2001 (201
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LIBERIA 2011 UNSC RESOLUTION 2008 (
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MIDDLE EAST 2011 UNSC Resolution 20
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RWANDA - Please note access is limi
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SIERRA LEONE 2011 UNSC RESOLUTION 2
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YUGOSLAVIA (former Yugoslavia) Plea
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DEROGATIONS OF STATES UNDER ICCPR 1
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