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

diplomatic and consular staff. 97 These acts or omissions constitute responsibility; they
are not primary laws but secondary in that the acts or the omissions are secondary to
the primary rules. The primary rules outline the duties or obligations and yet it is the
actions or omissions that constitute the breach.
The state itself is not a person and yet these actions or omissions are attributable to
the state. The actors of the state are members of the society that have permission to
act on behalf of the state. The “act of the state must involve some action or omission
by a human being or group … states can act only by and through their agents and
representatives.” 98 The question then arises as to what conduct (actions or omissions)
can be attributed to the state? Several cases can provide clarification of this question.
In 1930 a Hague conference adopted the term “any failure … to carry out
international obligations of the state”. 99 In the Rainbow Warrior case a breach was “any
violation by a state of any obligation.” The commentary by the ILC refers to terms
including “non-execution of international obligations, violation of an international
obligation or breach of engagement”, it also refers to the codification of international
law. The elements therefore are wide and this is further reflected in Article 3.
CAN A STATE USE INTERNAL OR MUNICIPAL LAW AS A DEFENCE FOR
VIOLATIONS OF INTERNATIONAL LAW?
Article 3 and the commentaries by the ILC focus on the denial of internal law as a
defence against an act or omission of an internationally wrongful act. A state cannot
plead that the breach does not apply because the actions were in conformity with
internal or municipal law. Apart from Article 27 of the Vienna Convention (1969)
which states that “A party may not invoke the provisions of its internal law as
justifications for its failure to perform a treaty”, there are many other relevant cases
and opinions of this defence in international law. The ILC commentary says “ a state
cannot by pleading that its conduct conforms to the provisions of its internal law
escape the characterization of that conduct as wrongful by international law”. Nor
97 United States Diplomatic and Consular staff in Tehran case, (United States v. Iran) (1980) ICJ
reports pp 31-­‐32, see also Velasquez Rodriguez v. Honduras case, (1988) Inter-­‐American Court of
Human Rights, series c, no 4, para 170
98 See German settlers in Poland, Advisory opinion, (1923), PCIJ series b, no 6, page 22: also cited
in commentaries page 35
99 See Conference for the codification of International Law, the Hague (1930) Yearbook (1956)
volume ii, page 225, A/CN.4/96 Annex 3, article 1
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