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

CHAPTER 4 - APPLICATION AND STATE DEROGATIONS IN
INTERNATIONAL LAW
As explained genocide and war crimes are well defined in international law. This
clarifies the point that customary international law is binding on all states. The
binding of these grave crimes on all states shows that no derogations from these rules
are acceptable in international law. Application principles in regard to genocide and
war crimes have also been shown to be a threat to international peace and security.
This was clarified by Security Council resolutions allowing state intervention into
Rwanda and former Yugoslavia, which means that any situation that arises under
these terms could be intervened in legally with Security Council approval. However
beyond these terminologies in international law it is difficult to include ethnic
cleansing or crimes against humanity as a threat to international peace and security
without including them within the provisions of war crimes and genocide. This does
not mean that individual states do not have a responsibility to prevent these crimes
from taking place. On the contrary, any state that is a party to individual contracts or
treaties on ethnic cleansing and crimes against humanity is bound by its duties in
international law to prevent them from taking place.
This Chapter researches application and state derogations in international law under
customary international human rights law. It has already been shown above that each
state is bound by its duties in international law to the treaties, statutes and conventions
that it is party to. It has also been argued that certain treaties are considered
customary and are binding on all states. The International Covenant on Civil and
Political Rights (1966) protects certain inalienable rights and this includes the right to
life, however some circumstances including the state emergency, allow derogations to
take place over some civil and political rights. This chapter focuses on these
derogations, and what this means in terms of the Responsibility to Protect doctrine
when crimes that are committed that are normally considered illegal are
extraordinarily defined as legal under certain circumstances. This chapter analyses
this framework.
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