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

nature by conjointly agreeing to both the Charter and the ICJ Statute. This means
they are bound to both equally in law conjointly and severally. Each member state
gives rise to its responsibilities in international law through first being a party to these
agreements. They are not only bound to the Treaty and Statute but also to all other
member states of the United Nations.
This truly universal binding nature is distinctive from other Treaties in international
law that conjoin only certain members or states to agreements that they have made
between them. Although some Treaties are considered jus cogens from which no
derogation can apply most are bilateral or multilateral in context. The Charter and
the ICJ Statute on the other hand are universal because a majority of states have
agreed to be bound by their terms. 145 This bindingness means that states have agreed
to limit their sovereignty in order to protect the contracts of agreement between them.
Each member state has freely given their consent to abide by the rules of the
agreement. This freedom of consent is consistent with the rule in international law
that a treaty is only binding on states that are a party to the treaty. This is called the
general rule of pacta terii nec nocent nec prosunt. This literally means that a third party will
not bear duty, nor will it endow a third party with a right. 146
The responsibility of the state that has freely given its word 147 or signature is under an
obligation to perform that duty in good faith. As already mentioned in Chapter 2 this
is called the general principle of pacta sunt servada, a general rule, which is well accepted
in international law. 148 In the event that there is a conflict between the United
Nations Charter responsibilities of a member state and any other international
agreement the responsibility prevails to the Charter of the United Nations. 149 This
shows that the Charter of the United Nations takes precedence over all other Treaties
in international law. This also shows that there are indeed some rules of international
law that are considered jus cogens.
145 See Reparation for injuries suffered in the service of the United Nations, Advisory opinion
(1949) ICJ reports, 16 ILR 318
146 Conte, A. (2006). An Introduction to International Law. Lexis Nexis page 53
147 See S.S. Lotus case, judgment number 9, 7 th September (1927), PCIJ, series a, WCR (1927-­‐
1932), volume ii, 20, 35
148 See Yuen Kwok-Fung v. Hong Kong special administrative region of the Peoples Republic of
China, (2001) 3 New Zealand Law review 463, 468
149 See Article 103 of the Charter of the United Nations and the Vienna Convention on the Law of
Treaties Article 30(1)
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