Carlo Focarelli’s research while affiliated with LUISS Guido Carli, Libera Università Internazionale degli Studi Sociali and other places

This chapter focuses on whether R2P makes sense in a world of states which appear increasingly unable to afford it and on the possible consequences that this state of affairs may have for the protection of people in the future. One must also bear in mind that R2P, despite its generally welcome reception, suffers a lack of credibility, and hence of feasibility, even from the perspective of its possible future materialisation as a legal rule. All these uncertainties could be overcome if an institution, such as the UN Security Council, had the authority to apply R2P in established cases with no margin of appreciation. States have always needed capital and resources to function. Human rights require states that are able, in addition to willing, to protect them. But this is possible only in a global economic system which places human rights, rather than power and profit, centre stage. Keywords: future materialisation; global economic system; human rights; Responsibility to Protect (R2P); state sovereignty; UN Security Council

The book distils and articulates international law as a social construct. It does so by analysing its social foundations, essence, and roots in practical and socially workable (as opposed to 'pure') reason. In addition to well-known doctrines of jurisprudence and international law, it draws upon psycho-analytic insights into the origins and nature of law, as well as philosophical social constructivism. The work suggests that seeing law as a social construct is crucial to our understanding of international law and to the struggle to create better working rules. The book re-conceptualizes both past and new doctrines of international law as 'constructs', namely, as strategies of concomitantly de-mythologizing and re-mythologizing international law. Key areas of international law, including subjects, sources, hierarchy, values, and remedies, are shown to be part of this process. The social impact on international law of transnational actors and stakeholders, normative fragmentation, global justice, legitimacy of rules and players, dynamics and hierarchization of norms, compliance and implementation in municipal law is also extensively investigated. Five basic values of the international community, namely security, humanity, wealth, environment, and knowledge, are explored by stressing their inter- and intra-tensions. Finally, the analysis is extended to the role that international courts play in the prosecution of heads of state and other transnational players who violate international law.

Common Article 1 of the 1949 Geneva Conventions is today generally seen as a ‘quasi-constitutional’ international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases ‘ensure respect’ and ‘in all circumstances’ contained therein, in particular, have been understood to imply a ‘state-compliance’ meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to ‘ensure respect’ in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive ‘individual-compliance’ meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase ‘in all circumstances’ too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported ‘quasi-constitutional’ character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to ‘respect’ the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.

The question about possible remedies, including military intervention, to avoid or to put an end to massive violations of human rights committed by a state towards its own citizens or in situations where state authorities critically lack effectiveness has been extensively debated since the issuance in 2001 of the report of the International Commission on Intervention and State Sovereignty (ICISS) on the responsibility to protect. After a succinct and critical review of the ICISS’ report and the subsequent international instruments dealing with the responsibility to protect, this contribution focuses on the positions adopted by states, especially over the last three years at the General Assembly and at the Security Council of the United Nations on humanitarian intervention as a ‘corollary’ of the responsibility to protect doctrine. It appears that humanitarian intervention aimed at implementing the responsibility to protect is not only feared as imperialistic by several weak states, but it also significantly fails to find an unconditioned support even amongst the most powerful states. Given its extreme and multifaceted ambiguity, which is discussed in the last section of this contribution, the innovative content of the purported ‘emerging norm’ on the responsibility to protect, as well as its prospect to emerge in the future, remain rather unclear.

Traditionally the problem of jus cogens has been conceptualised as a problem of identification of peremptory norms, taking as a starting point Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties. These provisions in fact, while defining jus cogens and contemplating invalidity and termination as special effects affecting incompatible treaties, fail to enumerate what norms are to be considered peremptory. In recent times, however, jus cogens has been invoked and applied - as a sort of “super-law” taking precedence over all other international norms - in legal contexts other than the law of treaties with a variety of “special” or “derogatory” effects. Such an expansion calls for a refocusing of the “identification” problem surrounding jus cogens in terms of effects rather than, or solely, in terms of norms. But it seems that the effects usually ascribed to jus cogens cannot be unlimited in number and scope. This implies that a criterion is needed to determine if and to what extent a certain jus cogens' effect is produced. It is submitted that a fully inductive approach should be taken. Jus cogens appears then in most cases to be relied upon ad abundantiam to “prove” a special effect which already flows either from an applicable treaty or from state practice and opinio iuris. In the remaining instances, reliance upon jus cogens seems to amount to invoking the need for the emergence of a corresponding new customary norm in the future, evidently on the assumption (whether right or wrong) that this norm does not exist yet or is not yet well-established. As a result, the key constructive meaning that can be attached to jus cogens is “promotional” - hence provisional and “educational” - insofar as the interpreter feels that a precedent, which is assumed as reflecting a fundamental value of the international community as a whole and capable of reasonably being accepted by the generality of states, should be set in order to bring about a change in existing law.