Due Diligence Obligations among the P5
Chapter 4: Resolving the conflict between the P5’s duty to prevent genocide and the P5’s rights and duties under conventional and customary law
In light of the conflict between the duty not to veto and the duty to intervene as required by the duty to prevent genocide, on the one hand, and the right to veto and the prohibition of the use of force under conventional and customary law, on the other hand, recourse must be had to the conflict resolution mechanisms under general international law. The fourth chapter of A Duty to Prevent Genocide: Due Diligence Obligations Among the P5 addresses three such mechanisms: Article 103 of the UN Charter, jus cogens norms, and erga omnes obligations. This chapter posits that if the duty to prevent genocide is a jus cogens norm, then the default conflict resolution rules under Article 103 of the UN Charter do not apply. It then recalls the history of jus cogens norms and discusses how they developed over time, culminating in Article 53 of the Vienna Convention on the Law of Treaties. The chapter also (perhaps more importantly) develops a test, one which is guided by history, but one which is focused on how to identify these peremptory norms in the current age. After applying this test to the duty to prevent genocide, this chapter concludes that the duty to prevent genocide is a jus cogens norm. As a result, the duty to prevent genocide, as circumscribed by its concomitant due diligence standard, requires the P5 to cooperate in voting for, and not vetoing, draft Security Council resolutions. If action within the Security Council is obstructed by a veto-wielding member of the P5, then the remaining members of the P5 must cooperate to prevent genocide as described in the first and second chapters. If that fails, then the US, as the ultimate duty-bearer, must discharge the duty to prevent genocide by actively attempting to forestall an imminent genocide or stop an active one, including using force in the process.
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