scholarly journals ESTABLISHING THE STATUS OF RESPONSIBILITY TO PROTECT (R2P) AS CUSTOMARY INTERNATIONAL LAW AND ITS ROLE IN PREVENTING MASS ATROCITIES

2021 ◽  
Vol 5 (1) ◽  
pp. 55-80
Author(s):  
Sigar Aji Poerana ◽  
Irawati Handayani
Keyword(s):  
Human Rights ◽  
International Law ◽  
Responsibility To Protect ◽  
Customary International Law ◽  
Primary Responsibility ◽  
State Practice ◽  
The Status ◽  
General Assembly Resolution ◽  
The One ◽  
Paradigm Shifting

ABSTRACTResponsibility to Protect (R2P) was unanimously adopted and is articulated in paragraphs 138 and 139 of General Assembly Resolution A/Res/60/1. On the one hand, R2P has presumed a new name for humanitarian intervention that is still debatable in international law. On the other hand, R2P attempts to connect State’s sovereignty and responsibility to protect human rights. R2P recognizes State’s sovereignty while bestowing States the primary responsibility to protect human rights and allowing the international community to intervene if States fail to fulfill their obligation. Considering the original idea of R2P is to protect human rights, the essential issue that should be addressed is the position of R2P as source of international law. Suppose States should implement the R2P without a prior commitment to a treaty, which sources of international law that can underlie the legal basis for R2P? This article argues that R2P can fulfill the criteria of customary international law based on the notion of ‘Grotian moment,’ which ‘compensates’ R2P from the traditional burden of state practice and opinio juris since R2P is a paradigm-shifting development in which new rules and doctrines of custom emerge with unusual rapidity and acceptance. Further, this article also highlights the importance of responsibility to prevent, which is one of the pillars of R2P, and argues that commitment to prevent is the “heart” of R2P. It is argued that such responsibility is vital in saving States from avoidable conflicts and from the trouble in responding to mass atrocities and rebuilding the affected population. Keywords: Customary International Law, Grotian Moment, Responsibility to Protect, Responsibility to Prevent, Sources of International Law ABSTRAKResponsibility to Protect (R2P) diadopsi dengan suara bulat dan dicantumkan dalam paragraf 138 dan 139 Resolusi Majelis Umum A/Res/60/1. Di satu sisi, R2P dianggap sebagai nama baru untuk intervensi kemanusiaan yang masih diperdebatkan dalam hukum internasional. Di sisi lain, R2P berupaya untuk menjembatani kedaulatan negara dan tanggung jawab untuk melindungi Hak Asasi Manusia (HAM). R2P tetap mengakui kedaulatan negara dan memberikan tanggung jawab utama kepada negara untuk melindungi HAM, namun mengizinkan masyarakat internasional untuk mengintervensi jika negara gagal memenuhi kewajibannya. Mengingat ide awal R2P adalah untuk melindungi HAM, maka isu penting yang harus ditelaah adalah posisi R2P sebagai sumber hukum internasional. Misalnya, negara harus mengimplementasikan R2P tanpa komitmen terlebih dahulu terhadap suatu perjanjian internasional, sumber hukum internasional manakah yang dapat mendasari pelaksanaan R2P? Artikel ini berpendapat bahwa R2P dapat memenuhi kriteria hukum kebiasaan internasional berdasarkan konsep ‘Grotian moment', yang 'mengkompensasi' R2P dari beban tradisional state practice dan opinio juris karena R2P merupakan perkembangan yang mengubah paradigma yang mengakibatkan aturan baru dan doktrin kebiasaan muncul dengan laju dan penerimaan yang luar biasa. Lebih lanjut, artikel ini juga menyoroti pentingnya tanggung jawab untuk mencegah, yang merupakan salah satu pilar dari R2P, dan berpendapat bahwa komitmen untuk mencegah adalah esensi dari R2P. Tanggung jawab untuk mencegah sangat penting dalam menjauhkan negara dari konflik yang dapat dihindari dan dari kesulitan dalam merespon krisis kemanusiaan dan membangun kembali penduduk yang terkena dampaknya. Kata Kunci: Grotian Moment, Hukum Kebiasaan Internasional, Tanggung Jawab untuk Melindungi, Tanggung Jawab untuk Mencegah, Sumber Hukum Internasional

scholarly journals Treaty Bodies

2019 ◽  
Vol 21 (3-4) ◽  
pp. 344-368
Author(s):  
Kasey McCall-Smith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
Peremptory Norm ◽  
Treaty Body ◽  
State Responses ◽  
Reporting Procedures ◽  
The Way

Abstract This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.

scholarly journals Democratic Legitimacy and Respect for Human Rights: The New Gold Standard

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 222-227 ◽  
Author(s):  
Christina M. Cerna
Keyword(s):  
Human Rights ◽  
International Law ◽  
Gold Standard ◽  
Democratic Legitimacy ◽  
Effective Control ◽  
Customary International Law ◽  
State Practice

Erika de Wet argues that state practice reveals that democratic legitimacy has not established itself alongside effective control for the purpose of recognition of governments in customary international law. My response is that we do not need to look to custom, difficult as it is to identify, when we have legally binding obligations such as those set forth in both the OAS Charter and the Inter-American Democratic Charter (IADC), not to mention the comparable European and African instruments. The new gold standard for recognition, I submit, is democratic legitimacy and respect for human rights, which has replaced “effective control.”

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

The Status of the “Responsibility to Protect (Rtop)“ Doctrine in Light of the Conflicts in Libya and Syria

2017 ◽  
Vol 5 (1) ◽  
pp. 495
Author(s):  
Petra Perisic
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Use Of Force ◽  
Responsibility To Protect ◽  
World Summit ◽  
Un Security Council ◽  
The Status ◽  
Resolution 1973 ◽  
The One ◽  
Outcome Document

In 2001 the International Commission on Intervention and State Sovereignty introduced a new doctrine of the “Responsibility to Protect (RtoP)”, which signified an obligation of each state to protect its population from mass atrocities occurring in that state, as well as an obligation on the part of international community to offer such protection if the state in question fails to fulfill its duty. The doctrine of RtoP was subsequently endorsed by states in the 2005 World Summit Outcome Document, though it was formulated more restrictively in comparison to the 2001 Report. In 2011 a conflict broke out in Libya between its ruler Muammar Gaddafi and the protesters against his rule. Government forces were brutal in their attempt to quell the protests and it was not long before different international bodies started to report mass violations of human rights. Surprisingly, the UN Security Council was not deadlocked by veto and passed the Resolution 1973, which invoked the RtoP principle and authorized the use of force. Supporters of RtoP hailed such an application of the principle and believed that the case of Libya was just a beginning of a successful bringing RtoP to life. Such predictions turned out to be premature. Not long after the Libyan conflict, the one in Syria began. Although Syrian people was faced with the same humanitarian disaster as Libyan did, the Security Council could not agree on passing of the resolution which would authorize the use of force to halt human rights violations. Two crises are being analyzed, as well as reasons behind such a disparate reaction of the Security Council in very similar circumstances.

scholarly journals Introduction to the AJIL Unbound Symposium on Recognition of Governments and Customary International Law

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 199-200
Author(s):  
James Gathii
Keyword(s):  
Human Rights ◽  
Cold War ◽  
International Law ◽  
Democratic Governance ◽  
The State ◽  
Effective Control ◽  
Post Cold War ◽  
Customary International Law ◽  
Regime Changes ◽  
State Practice

In the lead essay in this symposium, Professor Erika de Wet contends that notwithstanding all of the post-Cold War enthusiasm for a right to democratic governance and the non-recognition of governments resulting from coups and unconstitutional changes of government, a customary international law norm on the nonrecognition of governments established anti-democratically has not emerged. De Wet’s position, primarily based on state practice in Africa, is vigorously debated by six commentators.Jure Vidmar agrees with de Wet that the representative legitimacy of governments still lies primarily in effective control over the territory of the state. Vidmar, in his contribution, examines recent collective practice when neither the incumbent government nor the insurgents control the territory exclusively, arguing that in such cases states may apply human rights considerations. Like de Wet, however, Vidmar regards state practice as ambivalent and unamenable to ideal-type distinctions between coups (against a democratically legitimate government) and regime changes (to a democratically legitimate government).

KILLINGS AT SREBRENICA, EFFECTIVE CONTROL, AND THE POWER TO PREVENT UNLAWFUL CONDUCT

2012 ◽  
Vol 61 (3) ◽  
pp. 713-728 ◽  
Author(s):  
Tom Dannenbaum
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organization ◽  
Responsibility To Protect ◽  
Effective Control ◽  
Customary International Law ◽  
Attribution Analysis ◽  
Unlawful Conduct ◽  
Domestic Law ◽  
Court Of Appeal

AbstractThis article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers during the Srebrenica genocide. The decisions are of importance as a matter of international law for three reasons. First, the Court applied human rights obligations abroad, not by holding that the relevant treaties have extraterritorial effect, but by finding the ICCPR to have been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and determining that the standards codified in the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, in finding those obligations to have been breached, the Court relied on the Dutch battalion's eviction of the victims from its UN compound, not on any responsibility to protect those already outside the compound. Finally, on the issue of attribution, the Court of Appeal developed the doctrine of ‘effective control’ in several key respects. I argue that the Court was largely correct in its attribution analysis and that this may prove to be a landmark in the development of international law on attribution in such contexts. Most important among the issues addressed in the Court's discussion of attribution are its findings that: (i) the ‘effective control’ standard applies equally to the contributing state and the receiving international organization; (ii) ‘effective control’ includes not just giving orders, but also the capacity to prevent the wrongdoing; and (iii) troop-contributing states may sometimes hold that ‘power to prevent’ by virtue of their authority to discipline and criminally punish their troops for contravening UN orders.

The Last Citadel! Can a State Claim the Status of Persistent Objector to Prevent the Application of a Rule of Customary International Law in Investor–State Arbitration?

2010 ◽  
Vol 23 (2) ◽  
pp. 379-400 ◽  
Author(s):  
PATRICK DUMBERRY
Keyword(s):  
International Law ◽  
International Investment ◽  
Actual State ◽  
Customary International Law ◽  
International Investment Law ◽  
State Practice ◽  
The Status ◽  
Investment Law ◽  
Judicial Recognition ◽  
Do So

AbstractLike all rules of customary international law, those existing in the field of international investment law are binding on all states. According to the theory of the persistent objector, however, a state is not bound by a rule if it objected to it in the early stages of its formation and continued to do so consistently thereafter. This paper analyses the different grounds of criticism that have been raised against the concept. We found that there is only very weak judicial recognition of the concept, that there is no actual state practice supporting it, and that it is logically incoherent. Specifically, this paper argues that the concept should not be successfully used in investor–state arbitration proceedings to prevent the application of a custom rule by an arbitral tribunal. This is essentially because of the great importance of the few custom rules existing in that field and the fact that they represent universally recognized values.

The Customary International Law of Human Rights

2021 ◽  
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
Periodic Review ◽  
Human Rights Law ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
State Practice ◽  
The 1960S ◽  
Human Rights Norms

Customary international law is one of the principal sources of public international law. Unlike many branches of international law, human rights law did not first develop as custom and subsequently become codified. Human rights law was viewed as quintessentially a matter of sovereign concern to States until the mid-twentieth century, when treaties and declarations were adopted by the United Nations and other international bodies. Jurists only began to speak of human rights as customary law in the 1960s. Although its existence is uncontroversial, the content of customary international law in the area of human rights has not previously been analysed in a comprehensive manner. This book discusses the emergence of the customary law of human rights, the debates about how it is to be identified, and the efforts at formulation of customary norms. It examines human rights norms in order to determine whether they may be described as customary, using as a basis the content of the Universal Declaration of Human Rights. Much reliance is placed upon relatively new sources of evidence of the two elements for the identification of custom, namely State practice and opinio juris, in particular the increasingly universal ratification of major human rights treaties and the materials generated by the Universal Periodic Review mechanism of the Human Rights Council. The study concludes that a large number of human rights norms may be described as customary in nature, and that courts should make greater use of custom as a source of international law.

Kiobel v. Royal Dutch Petroleum Co.: The Supreme court and the Alien Tort Statute

2013 ◽  
Vol 107 (3) ◽  
pp. 601-621 ◽  
Author(s):  
David P. Stewart ◽  
Ingrid Wuerth
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Focal Point ◽  
The United States ◽  
Customary International Law ◽  
Court Of Appeals ◽  
The Status ◽  
The Right ◽  
Alien Tort Statute

The U.S. Supreme Court has finally decidedKiobel v. Royal Dutch Petroleum Co.It is the Court’s second modern decision applying the cryptic Alien Tort Statute (ATS), which was enacted in 1789. Since the 1980 court of appeals decision inFilartiga v. Pena-Iralapermitting a wide of range human rights cases to go forward under the statute’s auspices, the ATS has garnered worldwide attention and has become the main engine for transnational human rights litigation in the United States. The statute itself and the decisions that it generates also serve as state practice that might contribute to the developing customary international law of civil universal jurisdiction, immunity for defendants in human rights cases, the duties of corporations, and the right to a remedy for violations of fundamental human rights. During the 1990s, the ATS became the focal point for academic disputes about the status of customary international law as federal common law. Indeed, to the extent that the “culture wars” have played out in U.S. foreign relations law, the ATS has been their center of gravity.

The Normative Status of the Responsibility to Protect after Libya

2013 ◽  
Vol 5 (3) ◽  
pp. 317-341 ◽  
Author(s):  
Marie-Eve Loiselle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Security Council ◽  
Legal Status ◽  
International Community ◽  
Responsibility To Protect ◽  
Legal Obligation ◽  
Member States ◽  
Customary International Law ◽  
Normative Status

The responsibility to protect concept has evolved rapidly in the last decade but its normative and legal status is still disputed. This paper assesses the degree of recognition the concept has attracted since its inception and the significance of resolutions 1970 and 1973 for the transformation of the responsibility to protect into a new norm of customary international law. It argues that despite claims about the centrality of the concept in the decision to intervene in Libya, the language of both resolutions, and the statements made by members of the Security Council surrounding their adoption, indicate that member states did not consider that they were legally bound to protect the population of Libya. Consequently, the intervention in Libya has not promoted the development of a legal obligation upon the international community to protect the world’s populations against gross violations of human rights.

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