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

The ICJ Statute declares (Article 93) that all members of the United Nations are ipso
facto parties to the Statute of the ICJ. Article 92 also stipulates that the ICJ shall be the
principle judicial organ of the United Nations, indicating that the ICJ has jurisdiction
in relation to any contentious issues in international law and the United Nations
member states. 150 The ICJ itself has on many occasions reinforced this by reminding
parties that the ICJ always has jurisdiction in relation to the United Nations member
state violations and breaches of international treaties. In each case that is brought to
the court it firstly assesses whether it has jurisdiction in relation to the action at hand.
The court has only ever once decided that it did not have jurisdiction over matters
pertaining to an opinion 151 and it was only turned down because the question did not
arise within the scope of the World Health Organization activities. This illustrates that
ICJ jurisdiction is wide and encompassing and the rule of international law is
grounded strongly in the ICJ Statute and the Charter of the United Nations.
Each member state is bound to the international legal framework of the ICJ and the
Charter. The state recognizes these as principal documents that have standing in
international law. The state also acknowledges through being a member of the United
Nations, that it is no longer the sole judicator of international law. Its sovereignty is
subject to conditions, obligations and duties that arise out of the duty to perform. The
state is only recognized as sovereign through being a member of the United
Nations. 152 This means that it cannot stand alone independently or be recognized as
sovereign unless the members of the Security Council accept the state as legitimate in
international law. The state is therefore not only subject to conditions of the Charter
of the United Nations and member state agreements but it is also liable for any breach
150 See article 65, paragraph 1 of the ICJ statute, which says the court “may give an advisory
opinion on any legal question at the request of whatever body may be authorized by or in
accordance with the Charter of the United Nations to make such a request”. The General
Assembly is also authorized to make a request of the ICJ under article 96, paragraph 1 of the
Charter of the United Nations that states “the General Assembly or the Security Council may
request the International Court of Justice to give an advisory opinion on any legal question”. See
also, ICJ summary of the advisory opinion of 9 th July (2004) on the legal consequence of the
construction of a wall in the occupied Palestinian territory, page 1
151 See ICJ Advisory opinion 8 th July (1996) on the Legality of the use of nuclear weapons in Armed
conflict, page 89
152 See ICJ summaries of judgments, advisory opinions and orders of the ICJ, Competence of the
General Assembly for the admission of a state to the United Nations, Advisory Opinion, 3 rd March
(1950) as well as, summaries of judgments, Advisory opinions and orders of the ICJ, Conditions of
admission of a state to membership in the United Nations (Article 4 of the Charter), advisory
opinion, 28 th May (1948)
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