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

Amador realised in the 1950s that it was no longer true that international law exists
only for its sole raison d’être in the protection of the interests and rights of the state;
rather, its function was now to protect the rights and interests of its subjects who may
properly claim its protection. This critical analysis and understanding of international
law was to become a strain in arguments of objection to R2P in the 2005 and the
2009 World Summit debates. And yet Amador had clarified these problems and
arguments in international law nearly 60 years before. This conquest in hindsight was
an inaugural introduction to how international law, and the responsibility of states was
going to codify over time. The development from the Hague Conference in 1930 69
that accomplished some agreement on fundamental principles but ultimately ended in
refraining from embodying a definite formula, was a process that was going to
continue throughout the life of the debate.
Amador clearly defined four areas of responsibility for the state. These included firstly
acts or omissions of the legislature, judicial and executive branches. Secondly, he
added acts or omissions on the part of political subdivisions of a state or its colonies or
other dependencies. Third, he mentioned acts or deeds committed by private persons,
occurring during internal disturbances; and lastly he identified acts committed in the
territory of a state by a third state or international organization. The first he said
involves international state responsibility, the situation varying according to the
authority that acts or omits to act. This may include legislative or constitutional
measures that are adopted and are contrary to or incompatible with international
obligations to treaties and or conventions. This may be when the state has failed to
adopt or to apply the measures that are necessary for the purpose of discharging them.
He clearly covers R2P in regards to obligations in international customary laws,
including the rules associated with Article 53 of the Vienna Convention on the Law of
Treaties (1969) written nearly 12 years later, where it states that, “A treaty is void if, at
the time of its conclusion, it conflicts with a peremptory norm of general international
law.” 70 He also recognizes that the omission to act is also a violation. The same is
mentioned in paragraph 139 of the World Summit outcome document whereby the
responsibility of states to take collective action only comes after peaceful means has
69 Conference for the Codification on International Law, Hague (1930) p 223
70 United Nations Document Chapter XXiii 1, volume 2, United Nations . (1969). Vienna
Convention on the Law of Treaties . Vienna page 25
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