International Law and collective concerns: Reflections on the responsibility to protect

Law of the Sea, Environmental law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah

Volumn , Issue , 2007, Pages 35-51

  Brunnée, Jutta ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 84882622234     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/ej.9789004161566.i-1188     Document Type: Chapter

References (35)

1. W. Friedmann, The Changing Structure of International Law (London: Stevens & Sons, 1964).
2. See B. Simma, "From Bilateralism to Community Interest in International Law", (1994 VI) 250 RdC 217.
3. E. Hey, Teaching International Law (The Hague: Kluwer Law International, 2003), at 7.
4. See A.-M. Slaughter, "Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform", (2005) 99 AJIL 619.
5. UNGA, 2005 World Summit Outcome, UN Doc. A/RES/60/1 (24 October 2005) [hereinafter 2005 Outcome].
6. N.J. Wheeler, "A Victory for Common Humanity? The Responsibility to Protect after the 2005 World Summit", (2005) 2 J. Int'l L. & Int'l Relations 95.
7. See articles 53 and 64 of the Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331 (stipulating that treaties that purport to derogate from a peremptory norm are invalid)
8. M. Shaw, International Law, 5th edn (Cambridge: Cambridge University Press, 2003) at 118.
9. In affirming that the genocide prohibition has jus cogens character, the Court departed from its long-standing avoidance of such findings. Given that the finding was not necessary to decide the jurisdictional question before the Court, its statements have been controversial, notwithstanding the foundational nature of the prohibition.
10. See ILC, Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (23 April-1 June and 2 July-10 August 2001), Commentary to article 42, at 281 [hereinafter ILC Commentary].
11. M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Clarendon Press, 1997)
12. C.J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: Cambridge University Press, 2005), Ch. 4.
13. Draft Articles on Responsibility of States for Internationally Wrongful Acts, in ILC, Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, 43, UN Doc. A/56/10 (2001) [hereinafter ILC Draft Articles].
14. See I. Scobbie, "The Invocation of Responsibility for the Breach of 'Obligations under Peremptory Norms of General International Law'", (2002) 13 EJIL 1202, at 1204, 1218.
15. See M. Koskenniemi, "Solidarity Measures: State Responsibility as a New International Order?", (2001) 72 BYIL 337, at 348-349.
16. In other words, these secondary obligations are not contingent upon invocation of a State's responsibility by another. For example, in its Advisory Opinion in the Wall case, the ICJ concluded that Israel had violated the right of the Palestinian people to self-determination. It held that Israel not only had an obligation to end the violation but also to make reparation for the damage caused, either by "returning the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory", or by compensating "all natural or legal persons having suffered any form of material damage as a result of the wall's construction".
17. See D. Shelton, "Righting Wrongs: Reparations in the Articles on State Responsibility", (2002) 96 AJIL 833, at 842.
18. Note that resort to countermeasures must be preceded not only by a prior appeal to the responsible State for compliance, but also its prior notification of pending countermeasures and an offer to negotiate
19. See M. Kaplan, "Using Collective Interests to Ensure Human Rights: An Analysis of the Articles on State Responsibility", (2004) 79 N.Y.U. L. Rev. 1902, at 1913.
20. See e.g., M. Barnett, Eyewitness to a Genocide: the United Nations and Rwanda (Ithaca, NY: Cornell University Press, 2002).
21. Independent International Commission on Kosovo, The Kosovo Report - Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, 2000)
22. See e.g., J. Solana, Secretary-General of NATO, Press Statement, NATO Press Release 040 (1990), reprinted in J.L. Dunoff, S.R. Ratner and D. Wippman, International Law - Norms, Actors, Process (New York: Aspen, 2002), at 892.
23. International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, December 2001; at.
24. See e.g., J.L. Holzgrefe & R.O. Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003).
25. ICISS envisaged that this authorization should be sought first through the Security Council, and in case of an inability or refusal to act, through a revitalization of the "Uniting for Peace" resolution of the General Assembly or through a reference to a regional organization
26. See A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (29 November 2004); at [hereinafter HLP Report].
27. Some commentators argue that these criteria are already part of the existing international law on the use of force
28. See e.g. M.E. O'Connell, "The Counter-Reformation of the Security Council", (2005) 2 J. Int'l L. & Int'l Relations 107.
29. See J. Tanguy, "Redefining Sovereignty and Intervention", (2003) 17 Ethics & Int'l Aff. 141, at 144.
30. See generally M.V. Naidu, "Security, Sovereignty, and Intervention: Concepts and Case Studies", (2002) 34 Peace Research 33
31. S.D. Muni, "Human Rights, State Sovereignty and Military Intervention: Reflections on a Critical Discourse", (2005) 1 International Relations in a Globalising World 99.
32. In the Outcome document responsibility is linked to "genocide, war crimes, ethnic cleansing and crimes against humanity". Although "ethnic cleansing" is not established as a distinct international crime, it is arguably included in the concepts of "genocide", "extermination", "deportation or forcible transfer of population" and "enforced disappearance" as set out inter alia in articles 6 and 7 of the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (17 July 1998). Depending upon factual circumstances, it might also be a "war crime".
33. Of course, States are also subject to other human rights obligations derived from custom and treaty, but these obligations do not explicitly give rise to a potential collective obligation to protect
34. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2002).
35. See Th. Risse, "'Let's Argue!' Communicative Action in World Politics", (2000) 54 Int'l Org. 1, at 8.