¹ Evans, G, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Brookings Institute, Washington DC, 2008)Google Scholar; Cottey, A, ‘Beyond Humanitarian Intervention: The New Politics of Peacekeeping and Intervention’ (2008) 14 Contemporary Politics 437CrossRefGoogle Scholar; Dunne, T, ‘R2P: Distributing Duties and Counting Costs’ (2013) 5 Global Responsibility to Protect 443CrossRefGoogle Scholar; Doyle, M, The Question of Intervention: John Stuart Mill and the Responsibility to Protect (Yale University Press, New Haven, CT, 2015).Google Scholar

² Pattison, J, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene (Oxford University Press, Oxford, 2010) 2.Google Scholar

³ Thakur, R and Weiss, T, ‘R2P: From Idea to Norm – and Action?’ (2009) 1 Global Responsibility to Protect 23Google Scholar; Gilbert, M, ‘The Terrible 20th Century’ (2007) The Globe and Mail, 31 January.Google Scholar Also see Axworthy, L and Rock, A, ‘R2P: A New and Unfinished Agenda’ (2009) 1 Global Responsibility to Protect 69.CrossRefGoogle Scholar

⁴ As a sample see Teson, F, ‘The Liberal Case for Humanitarian Intervention’ in Holzgrefe, J and Keohane, R (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge University Press, Cambridge, 2003)Google Scholar; Andrew, H, Order and Justice in International Relations (Oxford University Press, Oxford, 2003)Google Scholar; Wheeler, N, ‘A Victory for Common Humanity? The Responsibility to Protect after the 2005 World Summit’ (2005) 2 Journal of International Law and International Relations 95Google Scholar; Booth, K, Theory of World Security (Cambridge University Press, Cambridge, 2005);Google Scholar Evans (n 1); Pattison (n 2); Linklater, A, The Problem of Harm in World Politics: Theoretical Investigations (Cambridge University Press, Cambridge, 2011);Google Scholar Dunne (n 1); Doyle (n 1); Glanville, L, Sovereignty and the Responsibility to Protect: A New History (University of Chicago Press, Chicago, IL, 2014)Google Scholar; Bellamy, A, ‘The Responsibility to Protect Turns Ten’ (2015) 29 Ethics and International Affairs 161.Google Scholar

⁵ Gallagher, A, Genocide and Its Threat to Contemporary International Order (Palgrave Macmillan, Basingstoke, 2013) 125.Google Scholar

⁶ Bellamy, A, Responsibility to Protect: A Defense (Oxford University Press, Oxford, 2015) 12.Google Scholar

⁷ Luck, EC, ‘A Response’ (2010) 2 Global Responsibility to Protect 178.Google Scholar

⁸ Bellamy, AJ, Responsibility to Protect: The Global Effort to End Mass Atrocities (Polity Press, Cambridge, 2009).Google Scholar

⁹ Dunne, T and Gelber, K, ‘Arguing Matters: The Responsibility to Protect and the Case of Libya’ (2014) 6 Global Responsibility to Protect 329.Google Scholar By employing the term ‘principled norm’ Dunne and Gelber aim to distinguish the R2P ‘from the general class of ‘‘norms’’ that relate to behavioural regularities’ in order to reflect the ‘high moral purpose that is addressed by the R2P’.

¹⁰ Brunnée, J and Toope, SJ, Legality and Legitimacy in International Law (Cambridge University Press, New York, NY, 2010) 324.Google Scholar

¹¹ United Nations, High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ A/59/565 (2 December 2004).

¹² Evans, G, ‘The Responsibility to Protect: An Idea Whose Time Has Come... and Gone?’ (2008) 22 International Relations 286.Google Scholar

¹³ Shawki, N, ‘Responsibility to Protect: The Evolution of an International Norm’ (2011) 3 Global Responsibility to Protect 173.Google Scholar

¹⁴ Welsh, JM and Banda, M, ‘International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?’ (2010) 2 Global Responsibility to Protect 213.Google Scholar

¹⁵ Welsh, JM, ‘Norm Contestation and the Responsibility to Protect’ (2013) 5 Global Responsibility to Protect 387.Google Scholar

¹⁶ Stedman, SJ, ‘UN Transformation in an Era of Soft Balancing’ (2007) 83 International Affairs 938.Google Scholar

¹⁷ See (n 12); Arbour, L, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’ (2008) 34 Review of International Studies 447–8.Google Scholar Similarly Thomas Weiss suggests that the R2P ‘certainly qualifies as emerging customary law’. See Weiss, TG, ‘R2P after 9/11 and the World Summit’ (2006) 24 Wisconsin International Law Journal 743.Google Scholar

¹⁸ Van Landingham, R, ‘Politics or Law? The Dual Nature of the Responsibility to Protect’ (2012) 41 Denver Journal of International Law & Policy 120.Google Scholar

¹⁹ Stahn, C, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 American Journal of International Law 102.Google Scholar

²⁰ Reinold, T, ‘The Responsibility to Protect – Much Ado about Nothing?’ (2010) 36 Review of International Studies 55.Google Scholar

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²³ Peters, A, ‘Membership in the Global Constitutional Community’ in Klabbers, J, Peters, A and Ulfstein, G (eds), The Constitutionalization of International Law (Oxford University Press, Oxford, 2009) 189.Google Scholar

²⁴ Buchan, RJ, International Law and the Construction of the Liberal Peace (Hart Publishing, London, 2013).Google Scholar

²⁵ See (nn 1 and 4).

²⁶ For a good critical overview see Hehir, A, The Responsibility to Protect: Rhetoric, Reality, and the Future of Humanitarian Intervention (Palgrave, Basingstoke, 2012).Google Scholar

²⁷ See (nn 1, 4, 5, 6 and 24).

²⁸ Wiener, A, Lang, AF Jr, Tully, J, Maduro, MP and Kumm, M, ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’ (2012) 1 Global Constitutionalism 2.Google Scholar

²⁹ Ibid.

³⁰ See (n 23). Although there are a significant number of scholars who have in different forms implied that the R2P represents a political and/or legal norm that alters the constitutional make-up of international relations (see nn 1, 3, 4, 6 and 24), we have chosen to largely focus on Peters’ account for the following reasons. First, Peters is a leading scholar of global constitutionalism and therefore offers useful insights on the R2P’s potential constitutionalisation and does so in more detail than most International Relations scholars. Second, there has been very little directly written on the R2P and its link to global constitutionalism, thus making Peters’ more expansive account particularly useful in terms of setting the debate. Although reference is made to other R2P authors who broadly intersect with aspects of global constitutionalism, Peters’ treatment is favoured, due to its direct engagement with the focus of this article.

³¹ Fassbender, B, ‘Sovereignty and Constitutionalism in International Law’ in Walker, N (ed), Sovereignty in Transition (Hart Publishing, Oxford, 2003) 129.Google Scholar Under this understanding, the establishment and entrenchment of the international prohibition on the use of military force can be properly appreciated as a (re)legalisation of sovereignty and as a crucial step towards the constitutionalisation of the international legal system.

³² See (n 23) 155, 185. Furthermore, as Peters underscores ‘the ongoing process of rendering sovereigns responsible is a cornerstone of the current transformation of international law into a constitutionalized system’. See (n 23) 190.

³³ The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre, Ottawa, 2001) paras 1.35, 2.15.

³⁴ See (n 23) 187; for a detailed account of the emergence of the international community see (n 24) 31, 61.

³⁵ See (n 23) 189.

³⁶ See (n 23) 187. For instance, Peters associates the internal responsibility with Lockean liberal constitutionalism, with the only difference being that states have a responsibility to protect all individuals within their territory, whereas in the classic understanding of the social contract this duty is owed to the state’s citizens. See also Buchan (n 24) 185–6.

³⁷ Peters (n 23) 187.

³⁸ United Nations, ‘Implementing the Responsibility to Protect’, Report of the UN Secretary-General, Ban Ki-moon, A/63/677 (12 January 2009) 2, 8–10.

³⁹ See (n 15) 384, 386–7.

⁴⁰ See (n 6) 62.

⁴¹ Luke Glanville goes further to suggest that the idea of sovereignty has always included a corresponding responsibility to protect its own citizens as a condition of that sovereignty and therefore the R2P does nothing more than to explicitly articulate a notion that has always been coupled with legitimate sovereignty from its inception by Bodin and Hobbes. See Glanville, L, Sovereignty and the Responsibility to Protect: A New History (University of Chicago Press, Chicago, IL, 2014).Google Scholar

⁴² See (n 6) 63.

⁴³ See (n 15) 387.

⁴⁴ See (n 23) 187.

⁴⁵ Brown, GW, ‘The Constitutionalization of What?’ (2012) 1 Global Constitutionalism 203.Google Scholar

⁴⁶ Ibid 205, 206, 208.

⁴⁷ Peters, A, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19 Leiden Journal of International Law 583.Google Scholar Klabbers et al. further characterise constitutionalism as an ‘attitude, a frame of mind’ and ‘a philosophy’. See Klabbers, J, Peters, A and Ulfstein, G, The Constitutionalization of International Law (Oxford University Press, Oxford, 2009) 10.Google Scholar

⁴⁸ See (n 23) 188.

⁴⁹ See Bellamy’s quote (n 6).

⁵⁰ In its most basic generally agreed upon formulation, a norm is defined ‘as a standard of appropriate behaviour for actors with a given identity’, see Finnemore, M and Sikkink, K, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 891.Google Scholar An important conceptual distinction underscored in the literature on norms is that between norms and principled ideas, which unlike norms (‘collective expectations about proper behavior for a given identity’) that can lead to a change in states’ policy, merely express ‘beliefs about right and wrong held by individuals’, see Jepperson, R, Wendt, A and Katzenstein, PJ, ‘Norms, Identity, and Culture in National Security’ in Katzenstein, PJ (ed), The Culture of National Security: Norms and Identity in World Politics (Columbia University Press, New York, NY, 1996) 54.Google Scholar In other words, ‘the prescriptive or evaluative quality of “oughtness”’ is what distinguishes norms from other rules (see Finnemore and Sikkink (above) 891) and makes the study of the process through which ideas evolve into norms worthwhile.

⁵¹ Norm socialisation is commonly conceptualised as the process by which principled ideas held by individuals become norms that can then influence a transformation of interests, identities and behaviours with the ultimate goal for states to internalise them, so as to guarantee compliance in the absence of external pressure, see Risse, T and Sikkink, K ‘The Socialisation of International Human Rights Norms into Domestic Practices’ in Risse, T, Sikkink, K and Ropp, SC (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, Cambridge, 1999) 11.Google Scholar Others define socialisation as the ‘induction of new members [...] into the ways of behaviour that are preferred in a society’, see Barnes, J, Carter, M and Skidmore, M, The World of Politics (St Martin’s Press, New York, NY, 1980) 35.Google Scholar What makes this definition particularly relevant to the discussion of the R2P is that it presupposes the existence of a society. At the global level, this understanding of socialisation is intelligible within the confines of the international system described as a society of states, see Bull, H, The Anarchical Society: A Study of Order in World Politics (Columbia University Press, New York, NY, 1977).CrossRefGoogle Scholar In this sense, norm socialisation is the mechanism through which states become recognised as members of the society of states, see Risse and Sikkink (above) 11.

⁵² Cortell, AP and Davis, JW, ‘How Do International Institutions Matter? The Domestic Impact of International Rules and Norms’ (1996) 40 International Studies Quarterly 451Google Scholar; Onuf, NG, World of Our Making: Rules and Rule in Social Theory and International Relations (University of South Carolina Press, Columbia, SC, 1989)Google Scholar; Keck, ME and Sikkink, K, Activists beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca, NY, 1998);Google Scholar spirals: Risse, T, ‘Let’s Argue! Communicative Action in World Politics’ (2000) 54 International Organization 1Google Scholar; Checkel, JT, ‘Why Comply? Social Learning and European Identity Change’ (2001) 55 International Organization 553.Google Scholar

⁵³ See (n 33) para 2.4; Annan, K, ‘Two Concepts of Sovereignty’ (18 September 1999) 353 The Economist 49–50.Google Scholar

⁵⁴ See (n 33) para 8.1.

⁵⁵ Ibid.

⁵⁶ Ibid VIII.

⁵⁷ Luban describes the principle of non-intervention (‘each state has a duty of non-intervention into the affairs of other states’) as the corollary of sovereignty. Luban, D, ‘Just War and Human Rights’ (1980) 9 Philosophy and Public Affairs 164.Google Scholar

⁵⁸ See (n 33) paras 4.10, 4.19.

⁵⁹ Ibid para 6.28.

⁶⁰ See (n 24) 67.

⁶¹ See (n 33) paras 6.29, 6.30.; Bolaños, T, ‘Military Intervention without Security Council’s Authorisation as a Consequence of the “Responsibility to Protect”’ in Wolfrum, R and Kojima, C (eds), Solidarity: A Structural Principle of International Law (Springer, Heidelberg, 2010) 164;Google Scholar UN General Assembly, Uniting for Peace Resolution, A/RES/377 A (V) (3 November 1950).

⁶² See (n 33) XIII, 51.

⁶³ Burke-White, W, ‘Adoption of the Responsibility to Protect’ in Genser, J, Cotler, I, Tutu, D and Have, V (eds), The Responsibility to Protect (Oxford University Press, Oxford, 2011) 18.Google Scholar

⁶⁴ UN General Assembly, World Summit Outcome, A/RES/60/1 (24 October 2006) paras 138, 139.

⁶⁵ Ibid.

⁶⁶ Ibid para 138.

⁶⁷ Ibid para 139; see (n 19) 99–120.

⁶⁸ See (n 64) para 139. A testimony that this is an accurate reading of the Outcome Document’s provisions is the overlap with the position of UN Secretary-General Ban Ki-moon, asserting that ‘The Charter gives the Security Council a wide degree of latitude to determine the most appropriate course of action. The council should continue to respond flexibly to the demands of protecting populations from crimes and violations relating to RtoP’ (my emphasis): UN Secretary-General’s Report, ‘Responsibility to Protect: Timely and Decisive Response’, UN Doc A/66/874-S/ 2012/ 5787 (25 July 2012). This position is advocated by Stahn who brings attention to a letter by the Secretary of State to Jon Bolton, released shortly after the Summit, elucidating that the United States would ‘not accept that either the United Nations as a whole or the Security Council, or individual states, have an obligation to intervene under international law.’: Quoted in (n 19) 108. The understanding that the UN merely possess a discretionary right to intervene is affirmed by Buchan, who refers to the Libyan crises to suggest that once the Libyan government violated its responsibility to protect, the UNSC did not see it as passing to itself.: See (n 24) 69.

⁶⁹ See (n 64) para 139. Emphasis added.

⁷⁰ The manifest state failure requirement effectively ruled out the possibility for preventative action by reaffirming that the UNSC can only sanction intervention to halt an enduring crisis. Unfavourably, this solidified R2P’s link with ‘military humanism’. See Chomsky, N, The New Military Humanism: Lessons from Kosovo (Pluto Press, London, 1999).Google Scholar

⁷¹ See (n 15) 375.

⁷² See (n 6) 16.

⁷³ See (n 15) 374.

⁷⁴ See (n 6) 14.

⁷⁵ See also (n 15) 375–6.

⁷⁶ Ibid 377.

⁷⁷ Ibid.

⁷⁸ See (n 14) 229.

⁷⁹ Asamoah, O, ‘The Legal Effect of Resolutions of the General Assembly’ (1963) 3 Columbia Journal of Transnational Law 210.Google Scholar Law-declaring resolutions of the General Assembly, for example, may assist in the determination or interpretation of international law or even constitute evidence of international custom. Scholars differ, however, as to whether ‘law-declaring resolutions’ of the Assembly can create law beyond their contributory role in the formation of customary international law. For doubts, see Hilgenberg, H, ‘A Fresh Look at Soft Law’ (1999) 10 European Journal of International Law 514.Google Scholar

⁸⁰ As Stahn suggests that the 2005 Summit formulation of the R2P is merely ‘old wine in new bottles,’ for it does not bind the UN with new obligations, but merely restates states’ obligations to human rights that over time have already developed into positive duty through custom. See (n 19) 99–120, esp 102.

⁸¹ UN Security Council Resolution 1674, ‘Protection of civilians in armed conflict’, S/RES/1674 (August 2006): ‘reaffirms the provisions of paragraphs 138 and 139 of the World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’; UN Security Council Resolution 1706, ‘Reports of the Secretary-General on the Sudan’, S/RES/1706 (August 2006).

⁸² See Evans (n 1) 52.

⁸³ Ibid 126.

⁸⁴ Serrano, M, ‘Responsibility to Protect – True Consensus, False Controversy’ (2011) 55 Development Dialogue 105.Google Scholar

⁸⁵ For an outline of Latin American shifts in perspectives on R2P, most notably Brazil’s, see Lopes, D and Vieira, P, ‘Brazil’s Rendition of the ‘‘Responsibility to Protect’’ Doctrine: Promising or Stillborn Diplomatic Proposal?’ (2015) 3 Brasiliana: Journal for Brazilian Studies 32Google Scholar; Stuenkel, O and Tourinho, M, ‘Regulating Intervention: Brazil and the Responsibility to Protect (2014) 14 Conflict, Security & Development 379.Google Scholar

⁸⁶ Constitutive Act of the African Union, Lomé Summit (7 November 2000).

⁸⁷ See (n 84).

⁸⁸ See (n 38) 2. The report envisions that each of R2P’s three supporting pillars is equally important and that ‘there is no set sequence to be followed from one pillar to another’ when it comes to implementation: at 2.

⁸⁹ Chandler, D, ‘R2P or Not R2P? More Statebuilding, Less Responsibility’ (2010) 2 Global Responsibility to Protect 161.Google Scholar

⁹⁰ See (n 38) 25.

⁹¹ Ibid 27.

⁹² Badescu, C, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (Routledge, London, 2011) 113.Google Scholar

⁹³ Ibid 116.

⁹⁴ Ibid.

⁹⁵ Ibid 113. See (n 84).

⁹⁶ See Gallagher, A, ‘Syria and the Indicators of a ‘‘Manifest Failing’’’ (2014) 18 International Journal of Human Rights 1.Google Scholar See also Labonte, MT, ‘Whose Responsibility to Protect? The Implications of Double Manifest Failure for Civilian Protection’ (2012) 16 International Journal of Human Rights 982.Google Scholar

⁹⁷ For a more detailed analysis on Canada’s diminishing support for the R2P see K Matthews, ‘Canada’s Abandonment of the Responsibility to Protect’ (20 September 2012) available at <http://cips.uottawa.ca/canadas-abandonment-of-the-responsibility-to-protect/>, accessed 14 August 2014. See also N Kikoler, ‘Time for Canada to Recommit to R2P’ (28 April 2014). available at <http://www.globalr2p.org/media/files/time-for-canada-to-recommit-to-r2p.pdf>, accessed 14 August 2014.

⁹⁸ Nossal, KR, ‘The Use—and Misuse—of R2P: The Case of Canada’ in Hehir, A and Murray, R (eds), Libya, The Responsibility to Protect and the Future of Humanitarian Intervention (Palgrave Macmillan, London, 2013) 124.Google Scholar

⁹⁹ Ibid 125.

¹⁰⁰ See S Adams, ‘Emergent Powers: India, Brazil, South Africa and the Responsibility to Protect’ (14 September 2012) available at <http://www.globalr2p.org/media/files/adams-r2p-ibsa-1.pdf>, accessed 14 August 2014. For South Africa see F Aboagye, ‘South Africa and the R2P: More State Sovereignty and Regime Security Than Human Security’ in Brosig, The Responsibility to Protect – From Evasive to Reluctant Action? The Role of Global Middle Powers (n 22).

¹⁰¹ Scholars such as Bellamy, Dunne, Glanville and Weiss have argued that although the BRICS may not be actively supporting the R2P, they have not formally rejected it either, which suggests that although weakened, the R2P is certainly not dead. For a critique and claim that this signals the death of the R2P, see C Keeler, ‘The End of the Responsibility to Protect?’ (12 October 2011) available at <http://www.foreignpolicyjournal.com/2011/10/12/the-end-of-the-responsibility-to-protect/>, accessed 14 August 2014.

¹⁰² Doyle, M, ‘The Politics of Global Humanitarianism: The Responsibility to Protect before and after Libya’ (2016 forthcoming) 53 International Politics.Google Scholar

¹⁰³ The statements of support of these states have been recognised as particularly meaningful by the Secretary General. See United Nations, ‘Secretary-General Welcomes Adoption of Text on Responsibility to Protect’, SG/SM/12452, GA/10855, Press Release, 14 September 2009. See UN Security Council Resolution 1894, S/RES/1894, November 2009, available at <http://unispal.un.org/UNISPAL.NSF/0/A4E2352BFDF75FF08525766C00588264>, accessed 11 May 2014.

¹⁰⁴ While Cuba, Venezuela and Pakistan continued to express strong objections to R2P, the majority of statements recognised that R2P had evolved from a controversial concept into a norm that had become an ‘operational reality’. See <http://www.globalr2p.org/resources/341>, accessed 11 May 2014.

¹⁰⁵ Importantly, member states further agreed that the responsibility is rooted in international law, that the four mass atrocity crimes are the only triggers for R2P action and can be interpreted as ‘threats to international peace and security’ under Chapter VII, allowing for SC action; that the R2P supports sovereignty.

¹⁰⁶ See (n 84) 108.

¹⁰⁷ See Finnemore and Sikkink (n 50) 888.

¹⁰⁸ Ibid 904.

¹⁰⁹ Ibid 890, 895.

¹¹⁰ Serrano, M and Weiss, TG, ‘Introduction: Is R2P ‘‘Cascading’’?’ in Serrano, and Weiss, (eds), The International Politics of Human Rights: Rallying to the R2P Cause? (Routledge, New York, NY, 2014) 14.Google Scholar

¹¹¹ Ibid 14, 17.

¹¹² See (n 15) 378–9.

¹¹³ EC Luck, ‘Foreword’ in Serrano and Weiss, The International Politics of Human Rights: Rallying to the R2P Cause? (n 110) xiv.

¹¹⁴ See Risse and Sikkink (n 51) 21–31.

¹¹⁵ Ibid 19.

¹¹⁶ See (n 92) 114. See also Badescu, C and Weiss, T, ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ (2010) 11 International Studies Perspectives 359.Google Scholar

¹¹⁷ See (n 92) 110.

¹¹⁸ Ibid 116. See also Badescu and Weiss (n 116) 355.

¹¹⁹ See (n 92) 116.

¹²⁰ See Badescu and Weiss (n 116) 359.

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¹²⁵ Panke, D and Petersohn, U, ‘Why International Norms Disappear Sometimes’ (2012) 18 European Journal of International Relations 719.Google Scholar

¹²⁶ Ibid.

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¹²⁸ See (n 10) 341.

¹²⁹ See (n 15) 395.

¹³⁰ Ibid.

¹³¹ See (n 45) 205.

¹³² Ibid; See also Milewicz, K, ‘Emerging Patterns of Global Constitutionalization: Toward a Conceptual Framework’ (2009) 16 Indiana Journal of Global Legal Studies 413–14.Google Scholar

¹³³ See (n 45) 206.

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¹³⁶ See (n 10) 341.

¹³⁷ Ibid.

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¹³⁹ See Milewicz (n 132) 427.

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¹⁴³ Ibid 89.

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¹⁴⁵ Schorkopf, F and Walter, C, ‘Elements of Constitutionalism: Multilevel Structures of Human Rights Protection in General International and WTO-Law’ (2003) 4 German Law Journal 1359.Google Scholar

¹⁴⁶ Unlike the national legal systems, where there is a clear hierarchy of law embedded in their constitutions, international law is premised upon a system of horizontal rules that are binding upon states only insofar as they consent to be bound by them.

¹⁴⁷ In respect to jus cogens see Vienna Convention on the Law of Treaties, 23 May 1969 (entered into force 27 January 1980) 1155 UNTS 331, reprinted in 8 ILM 679 (1969) art 53; see also A/CN.4/L.682, para 365.

¹⁴⁸ See Barcelona Traction, Light and Power Company, Limited, Second Phase (Belgium v Spain) ICJ Rep (1970) 32, para 33.

¹⁴⁹ de Wet, E, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 612–13.Google Scholar It is important to clarify the meaning here. ‘Without immediate consent’ refers to a state’s willingness or unwillingness to comply with international norms and the legitimate legal authority not to do so. This relates to cases where states have been signatories to existing international conventions, but resist compliance, or in cases where states have not been signatories, but are nevertheless held to account in relation to existing legal norms. In either case, a form of constitutionalism is being established, since it could be argued that a hierarchy exists, in which state compliance is demanded with or without its current consent and despite any immediate claims to sovereign self-determination that fly in the face of international norms.

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¹⁵¹ UN Secretary-General’s Report, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’ UN Document A/68/947–S/2014/449 (11 July 2014) para 12.

¹⁵² See (n 45) 205.

¹⁵³ See (n 134) 1008.

¹⁵⁴ Ibid 1009.

¹⁵⁵ See (n 45) 206.

¹⁵⁶ See Risse and Sikkink (n 51) 13.

¹⁵⁷ Ibid 16.

¹⁵⁸ United Nations, Statute of the International Court of Justice, 26 June 1945, art 38(1).

¹⁵⁹ Guzman, A and Meyer, T, ‘Customary International Law in the 21st Century’ in Miller, R and Bratspies, R (eds), Progress in International Law (Martinus Nijhoff, Leiden, 2008) 199.Google Scholar See also Guzman, A and Meyer, T, ‘International Common Law: The Soft Law of International Tribunals’ (2009) 9 Chicago Journal of International Law 526.Google Scholar

¹⁶⁰ See (n 6) 12.

¹⁶¹ See (n 5). This is evident by the fact that there is still considerable debate about whether Darfur equates to genocide.

¹⁶² One reviewer suggested that the genocide norm is actually very demanding in its call for action (thus has strong normative imperative as an action guiding principle). The suggestion was that its failure to be invoked relates to political and legal rationales, where certain states shy from the demanding normative commitments that invoking the Convention would then trigger. For the reviewer, this illustrates a distinction between effectiveness versus action guiding. Nevertheless, the result of inaction is the same, and in some ways the reviewer’s point strengthens our argument, since it illustrates that there is acceptance that this is a powerful norm as the ‘crime of crimes’ which demands action, while at the same time there is an unwillingness (for whatever reasons) to allow it to be action guiding in a way that bolsters a sense of global constitutionalism and a global ‘rule of law’. As it stands, the Genocide Convention, much like the R2P, has endorsement as an emerging norm, but this has not translated into implementation or action.

¹⁶³ Weiner, A, ‘Enacting Meaning-in-Use: Qualitative Research on Norms and International Relations’ (2009) 35 Review of International Relations 176.Google Scholar

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¹⁶⁵ Ibid 201; United Nations Security Council Resolution, S/RES/1244 (10 June 1999).

¹⁶⁶ See (n 164) 201.

¹⁶⁷ Ibid.

¹⁶⁸ Ibid 187.

¹⁶⁹ Ibid.

¹⁷⁰ See Evans (n 1) 54.

¹⁷¹ Ibid.

¹⁷² See (n 15) 395.