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

of sovereignty that each state is the subject to the supremacy of international law. This
indicated that the duties and responsibilities of states were a concern of the United
Nations very early on in their debates on international law. Garcia Amador's work
further emphasized the duties and responsibilities of states. It marked the start of a 70-
year process of customary integration of international laws and norms into rules on
intervention, international rights, breaches and non-performance, international
responsibility and the failure of states to exercise due diligence to prevent and enforce
penalties on individuals who violated international law, showing that critical questions
were being raised and argued during this time. This added to the broad canopy of
responsibilities that were inherent in the duties of states to prevent and protect certain
inalienable rights and fundamental freedoms.
Chapter 2 on the Rights, Duties and Responsibilities of States argued that certain
rules applied to the state in relation to the acts or omissions of the state in
international law. This detailed research explained that it was a violation to refuse or
fulfill treaty obligations in international law. 364 The research also showed that some
concerns were universal in scope, 365 and that every state by virtue of its membership
had a legal interest in the protection of certain basic rights and the fulfillment of
essential obligations. These included the outlawing of aggression, genocide, racial
discrimination and basic rights to the human person. 366 Any breach of these
international obligations could be attributable to the state.
The failure to act was also shown as a violation in certain circumstances. 367 The
research showed that a state cannot use internal law as a defence of an international
obligation under Article 27 of the Vienna Convention (1969). It also showed that each
state is responsible for its organs, its officials and the actions of those who are acting in
accordance with the state. 368 Furthermore if a person was acting or exercising
elements of governmental authority the state was also found to be responsible. The
Caire case is an example where the officers were acting contrary or ultra vires to
364 See Bulgaria, Hungary and Romania, second phase, Advisory opinion, ICJ Reports (1950) page
221 and Rainbow Warrior case, New Zealand v. France, (1987), (1990),
365 See Barcelona traction case Belgium v. Spain, (1970) ICJ Reports 3, pages 323-­‐4, 438-­‐9
366 See Barcelona case above
367 See The Tehran case, the Rainbow Warrior case and the German settlers in Poland, Advisory
opinion (1923)
368 See The LaGrand case
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