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

CHAPTER 2 – RIGHTS, DUTIES, AND RESPONSIBILITIES OF STATES
THE FINAL DRAFT ARTICLES - COMMENTARY AND DISCUSSION
From the 1960s the International Law Commission had been working on the
responsibility of states for internationally wrongful acts. This work borrowed from and
building on earlier work by Amador Garcia reflects the collective oeuvre of the
International Law Commission since 1946. Like Amador Garcia’s early work it can be
considered today a magnum opus. Although the work has not been considered at the
United Nations general assembly meetings since 2007 the work nevertheless has been
integrated into obiter dictum and opinio juris of the International Court of Justice on
several occasions. In light of this, some parts of the work are still considered
contentious, especially regarding the rules concerning peremptory rules, jus cogens and
erga omnes jurisdiction in international law. These discussions will be further analyzed
in Chapter 3 under the rule of law. The emphasis of the draft articles is on the
secondary performance rules of international law, which relate specifically to
responsibility of the state. This includes the wrongful actions or omissions of the state
and the legal consequences of these actions or inactions in international law.
Roberto Ago, as mentioned previously, was the main Special Rapporteur to the
International Law Commission for orientation and collation of the project. Roberto
Ago stated that the responsibility arose from the violation of the primary rules. The
articles focus on the secondary rules in that they lay down the foundations for
determining the obligations of the state and the legal consequences that come from
the violation or breach of those rules. In other words the articles deal with the conduct
of the state and the breach or omission that has taken place.
“International responsibility results exclusively from a wrongful act contrary to
international law.” 82
Article 1 declares that, “every internationally wrongful act of a state entails the
international responsibility of the state”. In other words the state that has breached or
82 International Law Commission. (2001). Draft Articles on the Responsibilities of States for
internationally wrongful Acts with commentaries A/56.10. United Nations, Yearbook of the
International Law Commission, Volume ii, Part two, (2)
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