‘Manifestly Failing’ and ‘Unwilling or Unable’ as Intervention Formulas: A Critical Assessment

2017 ◽  
pp. 164-191 ◽  
Author(s):  
Ingvild Bode
Keyword(s):  
Military Intervention ◽  
Critical Assessment ◽  
State Sovereignty ◽  
Critical Examination ◽  
World Summit ◽  
Policy Practice ◽  
Self Defense ◽  
Legal Foundations ◽  
Legal Justification ◽  
Sovereign Territory

Chapter Seven: Intervention and State Obfuscation, begins by arguing that the inclusion of the responsibility to protect (R2P) in the United Nations World Summit Outcome of 2005 marked a decisive shift in the evolution of interventions for humanitarian purposes. While the phrase “manifest failure” corresponds to the “unwilling or unable” standard previously used by the R2P-defining Commission on Intervention and State Sovereignty (ICISS), author Ivi Bode admonishes that the “unable or unwilling” standard has also been used to justify military intervention in a counterterrorism context. She explores recent examples where state’s have used this standard as a legal justification for military intervention for self-defense against terrorist/non-state actors on the sovereign territory of ‘host’ states. The chapter argues that the evolving prominence and, arguably, relevance of the “unwilling or unable” standard warrants a more thorough examination of its legal foundations and policy practice. In adding to existing literature which considers either the counter-terrorism or the R2P context only, Bode’s chapter offers a critical examination of its usage across both contexts, and concludes with a summary of what these developments might indicate in terms of evolving intervention standards.

The Genesis of R2P

2016 ◽  
Author(s):  
Charles Cater ◽  
David M. Malone
Keyword(s):  
Security Council ◽  
Human Security ◽  
Responsibility To Protect ◽  
State Sovereignty ◽  
World Summit ◽  
Gareth Evans ◽  
The World ◽  
High Level ◽  
Early Human ◽  
Outcome Document

This chapter addresses the evolution of the responsibility to protect concept from September 1999 to its adoption in the World Summit Outcome Document of September 2005. It covers Kofi Annan’s ‘dilemma of intervention’, some early human security initiatives by Canada including the International Commission on Intervention and State Sovereignty (ICISS) and its report The Responsibility to Protect which first articulated the moniker as well as the concept, the High-Level Panel on Threats, Challenges and Change and the Secretary-General’s report In Larger Freedom, the negotiations and Outcome Document of the World Summit, and the early incorporation of protection of civilians within Security Council resolutions. Throughout this narrative, the importance of sustained advocacy by key individuals—including Kofi Annan, Lloyd Axworthy, and Gareth Evans among others—is presented as vital to the evolution (in theory and in practice) of the responsibility to protect.

scholarly journals Philosophical and legal foundations of the doctrine Marsil of Padua about the state

2020 ◽  
pp. 33-43
Author(s):  
А.А. Борзов
Keyword(s):  
Theoretical Basis ◽  
The State ◽  
State Sovereignty ◽  
Common Source ◽  
Legal Doctrine ◽  
Essential Unity ◽  
Legal Foundations ◽  
The Common

Учение представителя раннего итальянского гуманизма, выдающегося философа и правоведа, Марсилия Падуанского [1270(80) – 1342(43)] о государстве актуализирует платоновские политико-правовые идеалы. Мысль Платона о сущностном единстве человека и государства, формируемом общим источником их добродетели – идеей справедливости, составляет теоретическое основание гуманизма падуанца, его философско-правового учения о совокупной воле людей как источнике государственного суверенитета. The teaching of the representative of early Italian humanism, an outstanding philosopher and lawyer, Marsil of Padua [1270 (80) - 1342 (43)] about the state actualizes Plato's political and legal ideals. Plato's thought about the essential unity of man and the state, formed by the common source of their virtue - the idea of ​​justice, constitutes the theoretical basis of Padua's humanism, his philosophical and legal doctrine of the collective will of people as a source of state sovereignty.

THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS

2021 ◽  
pp. 1-36
Author(s):  
David Little
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
Preliminary Evidence ◽  
Cross Cultural ◽  
Legal Concept ◽  
Organic Unity ◽  
Cultural Rights ◽  
Self Defense ◽  
Legal Justification ◽  
The Right

Abstract The article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwide comprehensibility and appeal of human-rights language.

Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights

2010 ◽  
Vol 79 (4) ◽  
pp. 457-479
Author(s):  
Ian Bryan ◽  
Peter Langford
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Critical Assessment ◽  
State Sovereignty ◽  
European Convention ◽  
Natural Justice ◽  
European Court ◽  
Key Features

AbstractThis article offers a critical assessment of the interpretative positions adopted by the European Court of Human Rights as to the applicability of Convention rights and freedoms to the deportation of “aliens” resident in the territory of a Contracting State. The article considers inconsistencies in the Court's jurisprudence and argues that these inconsistencies are a result of the characterisation of deportation proceedings as administrative events. The authors also explore the nature of Contracting States' deportation procedures and examine key features of the procedural guarantees afforded to non-nationals under the Convention and its Protocols. In addition, the authors consider the extent to which Convention notions of due process and natural justice are deemed germane to deportation proceedings. The article contends that disparities in the procedural protections accorded to nationals when compared with resident non-nationals conflict with the purpose of the European Convention on Human Rights are an avertable consequence of the primacy of State sovereignty.

The Responsibility to Protect and its Critics: Explaining the Consensus

2011 ◽  
Vol 3 (4) ◽  
pp. 425-437 ◽  
Author(s):  
Mónica Serrano
Keyword(s):  
Responsibility To Protect ◽  
State Sovereignty ◽  
International Commission ◽  
World Summit ◽  
Member States ◽  
Small Minority ◽  
The Third ◽  
Pillar Structure ◽  
The Impact ◽  
Outcome Document

AbstractWhile critics have claimed that the Responsibility to Protect (R2P) is a North-South polarising issue and is therefore controversial, this is a deliberate misrepresentation in a rhetorical war led by a small minority of UN member states. The first section of this article briefly reviews the evolution of this emerging norm from its inception in the 2001 report by the International Commission on State Sovereignty and Intervention (ICISS), to its endorsement in 2005 by more than 150 heads of states in the 2005 World Summit Outcome Document, to its more recent configuration in a three-pillar structure. The next part seeks to identify the main criticisms that have been levelled at R2P. It touches on some of the myths and allegations that have long accompanied R2P, as well as on the chief legitimate concerns underlying the shift towards implementation. The third and concluding section briefly touches upon the impact of the interventions in Libya and Côte D'Ivoire upon the evolving R2P consensus, and critically assesses the implications of a normative strategy that has put a premium on unanimity and unqualified consensus.

scholarly journals Responsibility to Protect dalam Kasus Genosida oleh ISIL terhadap Yazidi-Irak melalui Intervensi Militer Amerika Serikat

Jurnal ICMES ◽  
2020 ◽  
Vol 4 (1) ◽  
pp. 46-63
Author(s):  
Dewi Agha Putri ◽  
Hasan Sidik
Keyword(s):  
United States ◽  
Military Intervention ◽  
The United States ◽  
Responsibility To Protect ◽  
State Sovereignty ◽  
International Commission ◽  
Islamic State ◽  
Media Reports ◽  
United States Intervention ◽  
The Military

Artikel ini bertujuan untuk menjelaskan intervensi militer yang dilakukan oleh Amerika Serikat (AS) dalam menanggapi genosida yang dilakukan oleh Islamic State of Iraq and the Levant (ISIL) terhadap komunitas Yazidi di Irak. Peneliti menggunakan konsep Responsibility to Protect (R2P), yang merujuk pada laporan dari the International Commission on Intervention and State Sovereignty (ICISS) u This article aims to explain the military intervention carried out by the United States in response to the genocide carried out by the Islamic State of Iraq and the Levant (ISIL) against Yazidi community in Iraq. The researchers use the concept of Responsibility to Protect (R2P), which refers to a report from the International Commission on Intervention and State Sovereignty to see the procedure for procuring military intervention in the R2P framework in detail. This article found that besides several collateral damages, military intervention carried out by the United States was following the procedures set out by the International Commission on Intervention and State Sovereignty. The United States’ intervention was done by the Iraqi government's approval, which had previously requested assistance from the United States. This intervention can be seen as Iraqi collective self-defense as stated in Article 51 of the Charter of the United Nations or intervention based on approval as stipulated in Article 20 of the Responsibility of States for International Wrongful Acts 2001. This research was conducted qualitatively using sources in the form of a variety of documents and mass media reports. ntuk melihat prosedur intervensi militer dalam kerangka kerja R2P secara terperinci. Artikel ini menemukan bahwa meskipun telah terjadi sejumlah dampak sampingan (collateral damages), intervensi militer yang dilakukan oleh AS mengikuti prosedur yang ditetapkan oleh ICISS, antara lain, dilakukan AS atas persetujuan pemerintah Irak yang sebelumnya meminta bantuan dari AS. Intervensi ini dapat dilihat sebagai pertahanan diri kolektif Irak sebagaimana tercantum dalam Piagam Perserikatan Bangsa-Bangsa Pasal 51 atau intervensi berdasarkan persetujuan sebagaimana diatur dalam Pasal 20 Responsibility of States for International Wrongful Acts tahun 2001. Penelitian ini dilakukan secara kualitatif dengan menggunakan sumber-sumber berupa berbagai dokumen dan laporan media massa.

R2P and Humanitarian Action

2014 ◽  
Vol 6 (2) ◽  
pp. 146-161
Author(s):  
Edmund Cairns
Keyword(s):  
Military Intervention ◽  
Substantial Effect ◽  
International Norms ◽  
Responsibility To Protect ◽  
World Summit ◽  
New Approach ◽  
Humanitarian Action ◽  
Emerging Powers ◽  
Broad Approach ◽  
Do So

The responsibility to protect was not the only concept that grew out of the world’s failure to tackle the mass atrocities of the 1990s in Rwanda, Bosnia and elsewhere. So too did a new approach to humanitarian action which placed a higher priority on protecting civilians, and on advocacy to do so, than had hitherto been common. Oxfam’s role in the campaign to persuade the 2005 World Summit to adopt the responsibility to protect was one prominent example, but, to different degrees, this broad approach has become widely shared among many international humanitarian agencies. Since 2005, however, even Oxfam has made little use of the responsibility to protect to frame its own work to help protect civilians, or to advocate to prevent mass atrocities in specific crises. This is partly because of the fear that R2P can be misapplied to justify military intervention where the benefits do not clearly outweigh the risks. But it is also because of the continuing suspicion around R2P among many governments. This seems to reflect the wider limits of what largely Western-based humanitarian agencies and governments can do to develop new international norms and put them into effect. When R2P was first developed, humanitarian agencies played a part in broadly similar alliances to ban landmines, establish the icc and so on. Some of these have already had a substantial effect, while it may be a generation before the value of R2P and others can be fairly evaluated. Looking ahead, humanitarian agencies will have to put an increasing emphasis on influencing emerging powers and other Southern governments, while alliances between governments and ngos, to be effective, will have to be genuinely global.

Self-Defense and the Rule of Law

1989 ◽  
Vol 83 (2) ◽  
pp. 259-277 ◽  
Author(s):  
Oscar Schachter
Keyword(s):  
National Security ◽  
International Law ◽  
Rule Of Law ◽  
International Level ◽  
The Rule Of Law ◽  
Self Defense ◽  
Legal Justification ◽  
The Ideal ◽  
Legal Right

Self-defense on the international level is generally regarded, at least by international lawyers, as a legal right defined and legitimated by international law. Governments, by and large, appear to agree. When they have used force, they have nearly always claimed self-defense as their legal justification. Governments disputing that claim have usually asserted that the legal conditions of self-defense were not met in the particular case. However, despite the apparent agreement that self-defense is governed by law, the meaning and validity of that proposition remain open to question. There are some who challenge the basic idea that the security of a state—its self-preservation—can and should be subjected to international law. Others question whether under present conditions the ideal of a rule of law can be applied on the international level to national security decisions. My aim in this essay is to explore some aspects of the problem raised by these challenges to the applicability of international law to claims of self-defense. It is not my intention, I should add, to consider specific interpretations of self-defense.

scholarly journals Besieged sovereignty: The pandemic and the triple relation between state, international organizations and integral society

2020 ◽  
Vol 1 (1) ◽  
pp. 171
Author(s):  
Carina Barbosa Gouvêa ◽  
Pedro Hermílio Villas Bôas Castelo Branco
Keyword(s):  
State Sovereignty ◽  
Armed Attack ◽  
State Of Emergency ◽  
Legal Norms ◽  
Community Needs ◽  
Self Defense ◽  
Rules And Principles ◽  
The One ◽  
United Nations Charter ◽  
Imminent Risk

The theory of sovereignty has been challenged by the limits established by the international field and tensions, a likely subordination of the internal right to the global community that is governed by rules and principles and not simply by the exercise of power. The pandemic from COVID-19 has provided an opening in the theoretical field of fragmentation of the theory regarding state sovereignty. A new way to materialize sovereignty that, when put into practice, can assume the functions of global governance exercised by an international organization. This ability of exercising state sovereignty, named besieged sovereignty in this document, has the initial goal of justifying the use of this new concept that emerged from a state of global exception, in addition to presenting, briefly, the approach to the validity of legal norms. Two hypotheses will be presented for the field of this research: can there be unilateral and/or plurilateral intervention in state sovereignty in case there is a declaration of a state of emergency, of exception, in the global field?  Can there be an authorization of the United Nations Charter for direct intervention on behalf of individual or collective self-defense, in the case of an armed attack upon the nation that represents imminent risk of transmission and spread of the pandemic? We will argue that besieged sovereignty represents a serious risk to state sovereignty and that the international community needs to be actively engaged in ensuring that governments observe the standards and quickly return to normal so that there is no “legitimate use of force ”and unilateral or plurilateral interventions, since the sovereign will be the one who is capable, over the abnormality, in order to suspend the legal order in whole or in part and with the purpose of restoring normality.

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