scholarly journals The Legality and Legitimacy of Unilateral Armed Intervention in an Age of Terror, Neo-Imperialism, and Massive Violations of Human Rights: Is International Law Evolving in the Right Direction?

2005 ◽  
Vol 42 ◽  
pp. 3-33
Author(s):  
J.-G. Castel
Keyword(s):  
Human Rights ◽  
International Law ◽  
Security Council ◽  
The United States ◽  
Human Right ◽  
Customary International Law ◽  
Bush Doctrine ◽  
The Right ◽  
Armed Intervention ◽  
Self Defence

SummaryWith the end of the Cold War, the United States has emerged as the sole remaining superpower whose ambition is to create a new open and integrated world order based on principks of democratic capitalism. To ensure its hegemony, the United States is prepared to resort to military action with or without UN approval when its international and national security interests are at stake. The intervention in Iraq by the Coalition of the Willing is a good example of this policy and raises the question of its legality and legitimacy under contemporary international law. May or must a state resort to military intervention against a state sponsoring terrorism or depriving its nationals of their internationally recognized human rights? The so-called “Bush doctrine” of anticipatory or preventive self-defence against a state accused of supplying weapons of mass destruction to a foreign terrorist organization, which was one of the reasons advanced by the Coalition of the Willing for intervening in Iraq, meets neither the conditions laid out in Article 51 of the UN Charter nor those of customary international law. Thus, at the present stage of development of international law, the Bush doctrine is not even lege ferenda. It is not an extension of the customary international law right of pre-emptive self-defence. Only with the approval of the Security Council pursuant to Chapter VII of the UN Charter or when it takes place within the strict confines of self-defence, can armed intervention be legitimate.The second reason for intervening in Iraq given by the Coalition of the Willing is based on humanitarian considerations, which raises the question whether the protection of human rights can be assured from the outside. Here, international law is evolving in the right direction since the international community is prepared to adopt the concept of responsibility to protect, which justifies the use of force to protect and enforce human rights as an exception to Article 2(4) and (7) of the UN Charter. Again, such intervention is legal only when approved by the Security Council acting pursuant to Chapter VII on the ground that human right crises do not fall “essentially within the jurisdiction of any state.” However, the international community, with the exception of the Coalition of the Willing, is not yet prepared to support a right of unilateral military intervention as a last resort when the Security Council is incapable and unwilling to do so. This includes intervention motivated by the non-democratic form of government of the targeted state. Although the primary responsibility to deal with human right crises rests with the United Nations based on the responsibility to protect, it is argued that one should not rule out unilateral military action based on a customary international law right of intervention to meet the gravity and urgency of the situation provided the intervening state fully observes the necessary precautionary principles governing such type of intervention. The conclusion is that terrorism and human rights abuses can only be effectively challenged through a concerted multilateral collective approach not through the politics of unilateralism.

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.

scholarly journals Unmuddying the Waters: Evaluating the Legal Basis of the Human Right to Water Under Treaty Law, Customary International Law, and the General Principles of Law

2020 ◽  
pp. 455
Author(s):  
Ndjodi Ndeunyema
Keyword(s):  
International Law ◽  
Reflective Equilibrium ◽  
Human Right ◽  
Customary International Law ◽  
Cultural Rights ◽  
Treaty Law ◽  
Sliding Scale ◽  
General Principles Of Law ◽  
Water Provision ◽  
The Right

This article evaluates the existence of a freestanding, general human right to water under each of the three principal sources of international law: treaty, customary international law, and the general principles of law. To date, the right to water has been derived from treaty law, most prominently as part of the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights (as implied by General Comment 15 to the ICESCR). The potential importance of a non-treaty based right to water––as a matter of customary international law or a general principle of law––is that it would bind all states, including states that are not parties to treaties with right to water provisions. Therefore, this article evaluates the state practice and opinio juris elements of custom supporting a right to water. Recognizing the disputed nature of how these two elements generally interact to crystallize into a customary norm, the article considers the problem using two distinct methodological approaches: the sliding scale approach and the reflective equilibrium approach. Finally, the paper considers whether a right to water is supported by the general principles of law. Although the right to water is not directly created by the general principles of law, the principles can nevertheless be applied to develop states’ positive and negative obligations for water provision.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

Part 3 The Post 9/11-Era (2001–), 48 The Intervention in Afghanistan—2001–

2018 ◽  
Author(s):  
Byers Michael
Keyword(s):  
International Law ◽  
Security Council ◽  
Customary International Law ◽  
The Us ◽  
Un Security Council ◽  
State Actors ◽  
Complex Relationships ◽  
Self Defence

This chapter addresses the US and NATO-led intervention in Afghanistan from 2001 to the present day. It examines the different legal justifications advanced or available for the intervention, namely self-defence, UN Security Council authorization, and intervention by invitation. It explores the complex relationships between these justifications and, particularly, the strategies adopted by states in choosing between them. The chapter concludes by considering the effects of the intervention on the customary international law of self-defence as it concerns non-state actors located in “unaware or unable” states, and anticipatory or pre-emptive responses.

scholarly journals The True Meaning of Force: A Further Response to Tom Ruys in the Interest of Peace

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 153-154
Author(s):  
Mary Ellen O’Connell
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Common Sense ◽  
Use Of Force ◽  
The United States ◽  
Low Level ◽  
Lethal Force ◽  
Intelligence Services ◽  
The Law ◽  
The Right

I very much appreciate the seriousness with which Tom Ruys read my comments on his article. Rather than convince me that his thesis about Article 2(4) is correct, however, his reply provides further support for the opposing view. Minor force is excluded from Article 2(4) but regulated under other legal principles. Here are some examples: •He accepts that there are many cases where states and courts have treated low level uses of force as regulated under rules other than Article 2(4). He also argues, and I agree, that some cases are unclear as to whether they support an Article 2(4) threshold or not. Yet, he fails to deal with the really important point in my comment that the great weight of authority clearly supports the threshold. In his reply he even cites with favor the recent report of the Independent International Fact-Finding Mission on the Conflict in Georgia, but the report supports the view that low level uses of force fall below the Article 2(4) threshold.•Ruys concedes that some low-level uses of force are outside Article 2(4). In his reply he provides a new hypothetical of such a minor use of force, a bar fight in Afghanistan between soldiers of different nationalities. He says it is a matter of common sense that such a use of force is excluded from Article 2(4). Yes, common sense is one of the reasons to conclude low-level force is excluded. Given that he agrees on this, his article should be about where the threshold is, not an argument that there is no threshold at all. I argue that various other rules of international law from the principle of non-intervention to human rights law to the law of countermeasures indicate where the threshold is. In his reply he takes up an example I provide on “targeted killing,” asking where is the legal distinction between knifing an individual and launching a Hellfire missile at an individual, as opposed to launching a Hellfire at a group of people—the example I used. I categorize all Hellfire attacks as covered by Article 2(4) because of the amount of firepower involved. The Hellfire was developed as a tank-killing weapon. The number of persons targeted is not as significant as the fact the Hellfire involves more too much firepower to conform to the rules governing lawful law enforcement (police) deployment of lethal force. Lawful deployment of a Hellfire must comply with one of the exceptions to Article 2(4).•Saying minor force is excluded from Article 2(4) is not the same as saying such force is lawful. The example just mentioned of knifing an individual, say by the intelligence services of one state acting on the territory of another state, implicates non-intervention, human rights, and countermeasures, among other rules relevant to regulating minor uses of force. In his reply, Ruys criticizes the adequacy of some of this law. No doubt some of the law is inadequate, but that is a different issue from the one he is examining, which is what law applies to minor uses of force.•If Article 2(4) included minor uses of force states could not lawfully employ countermeasures involving minor uses of force in, for example, rescue and arrest efforts. Using force under today’s law, which does not include Ruys’s proposal to expand the right to use force in self-defense, requires Security Council authorization. This is clearly a problem for his analysis. States simply do not do this. The United States did not go to the Security Council to get permission to try to rescue the American journalist, James Foley, beheaded by ISIL militants in Syria in August or to detain Abu Khattala in Libya in June. Both operations followed the rules regulating lethal force by police and were lawful in my view, but not in Ruys’s view of the current law.

scholarly journals Međunarodna solidarnost i pravo na zdravlje

JAHR ◽  
2018 ◽  
Vol 9 (1) ◽  
pp. 69-85
Author(s):  
Sonja Trgovčić
Keyword(s):  
Human Rights ◽  
International Law ◽  
Right To Health ◽  
Shared Responsibility ◽  
Vulnerable Groups ◽  
Human Right ◽  
International Solidarity ◽  
Legal Nature ◽  
Protection Of Human Rights ◽  
The Right

The concept of international solidarity has been developing since the second half of the 20th century within the scope of international charters, conventions and declarations of protection of human rights. It has earned the qualities of the principle of international law and has been given a meaning of the key human right which binds together human rights of the first, second and third generation. With this work the author provides an explanation and gives a postulate to the legal nature of international solidarity and its legal feasibility. Furthermore, the author speaks about international cooperation, shared responsibility and the prevention of factors of climate change, hunger, inadequate health care, polarity in the economic development, and achieving equality. The author dedicates special attention to the right to health, its aspects and connections with international solidarity in protection of vulnerable groups.

scholarly journals Necessity and Proportionality and the Right of Self-Defence in International Law

2021 ◽  
Author(s):  
Chris O'Meara
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Third Party ◽  
Military Force ◽  
Total Force ◽  
Customary International Law ◽  
Defensive Action ◽  
The Right ◽  
Conceptual Meaning ◽  
Self Defence

States invariably justify using force extraterritorially by reference to their inherent right of self-defence. In so doing, they accept that the exercise of such right is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement renders ostensibly defensive action unlawful, increased determinacy regarding their scope and content is crucial to how international law constrains military force. This book examines the conceptual meaning, substance and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter in 1945. It provides a coherent and up-to-date description of the applicable contemporary international law and proposes an analytical framework to guide its operation and appraisal. This book contends that necessity and proportionality are conceptually distinct and must be applied in the foregoing order to avoid an insufficient ‘catch-all’ description of (il)legality. Necessity determines whether defensive force may be used to respond to an armed attack and where it must be directed. Proportionality governs how much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security.

scholarly journals The Right of Self-Determination: Its Emergence, Development, and Controversy

2016 ◽  
Vol 12 (1) ◽  
pp. 1
Author(s):  
Munafrizal Manan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
International Human Rights ◽  
International Human ◽  
The Right ◽  
Right Of Self Determination

This paper discusses the right of self-determinationfrom  international  law  and international human rights law perspective. It traces the emergence and development of self-determination from political principle to human right. It also explores the controversy of the right of self-determination. There have been different and even contradictory interpretations of the right of self-determination. Besides, there is no consensus on the mechanism to apply the right of self-determination. Both international law and international human rights law are vague about this.

scholarly journals El derecho humano a participar: Estudio del artículo 21 de la Declaración Universal de Derechos Humanos = The human right to participate: Study of article 21 of the Universal Declaration of Human Rights

2019 ◽  
pp. 33
Author(s):  
Jorge Castellanos Claramunt
Keyword(s):  
Human Rights ◽  
Political Participation ◽  
International Law ◽  
International Development ◽  
Universal Declaration ◽  
Human Right ◽  
Citizenship Rights ◽  
Derechos Humanos ◽  
The Right ◽  
The Impact

RESUMEN: El derecho a la participación política se encuentra en el artículo 21 de la Declaración Universal de Derechos Humanos como un derecho humano. Este derecho ha seguido un desarrollo a nivel internacional desde una perspectiva global, así como continental, por lo que se analiza su evolución en los últimos 70 años y el impacto que ha tenido dentro del desarrollo del Derecho Internacional de los Derechos Humanos. Por último se subraya el carácter fundamental del derecho a participar así como una proyección de su desarrollo en el futuro.ABSTRACT: The right to political participation is found in article 21 of the Universal Declaration of Human Rights as a human right. This right has followed an international development from a global as well as a continental perspective, so its evolution over the last 70 years and the impact it has had on the development of the International Law of Human Rights is analyzed. Finally, the fundamental character of the right to participate is stressed, as well as a projection of its.PALABRAS CLAVE: derechos humanos, participación política, democracia, ciudadanía, derechos.KEYWORDS: human rights, political participation, democracy, citizenship, rights.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

Sign in / Sign up

Export Citation Format

Share Document