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

obligation of that state”. 135 The insurrectional movement is not considered an act of
the state because it sits outside and independent of the state until such time as it
succeeds in over taking the government. As the ILC commentaries explain; the state
does not cease to exist at any point in the transition as a subject of international law,
only the party has changed and not the state itself. 136 Because the state is the only
accountable institution in international law the state remains to be attributable for the
actions of the parties involved. The ILC commentaries clearly point this out when
they say that the state is the only subject of international law to which responsibility
can be attributed.
In light of this, distinction is not made between different types of movements on the
basis of legitimacy issues in international law. The focus in international law is
directed at the specific conduct of the parties at the time of their actions. 137 The ICJ
reflected this in an advisory opinion in relation to Security Council Resolution 276
when they said “physical control of a territory and not sovereignty or legitimacy of
title is the basis of state liability for acts affecting other states”. 138 In the Bolivar Railway
Company claim the court said that “the national is responsible for the obligations of a
successful revolution from its beginning, because in theory it represented ab initio a
changing national will, crystallizing in the finally successful result”. 139
The French Company of Venezuela Railroads case also emphasized that the state cannot be
held responsible for the acts of revolutionaries unless the revolution was successful
since the acts themselves involve the responsibility of the state. 140 Unsuccessful
insurrections are not covered under state responsibility because they do not include
attribution to the state. The movement itself may come under individual criminal
135 League of Nations. (1930). Conference for the Codification of International Law . Hague:
League of Nations
136 See page 50 ILC commentaries (2001)
137 See for example, Legal consequences for states on the continued presence of South Africa in
Namibia (South West Africa) Security Council Resolution 276 (1970) Advisory Opinion ICJ reports
(1971) page16 and p54,
138 ibid see footnote 134
139 See Bolívar Railway Company claim (1903) UNRIAA, volume ix, (sales no 59.v5) page 445 and
453 see also French company of Venezuela railroads case volume (1902) x (sales number 60.v4)
page 285, 354
140 ibid Commentaries from the ILC (2001) page 51
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