Slowly Improving Human Protection E-Book

Rafael Luchini

• Herausgeber: Editora Dialética
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 119

Veröffentlichungsjahr: 2021

Beschreibung

Can international community step up to defend civilians whose basic rights are been jeopardized? What is the limit of sovereignty in the face of a human rights crisis? Should international community been legitimated to take action in defense of helpless civilians? Who´s to determine when to act, if so? To address these and other question, this book will present you the concept of R2P – Responsibility to Protect. Throughout the work we will conduct you to analyze in which extent the responsibility to protect theory can influence the States behavior in intervention for human protection and discuss whether or not R2P has all the ingredients to be considered a customary international law. All of that will be done in the light of factual evidences conducting a comparative case study involving the interventions in Kosovo (late 1990's) and Libya (early 2010's). We will show and analyze changes in actions and procedures according to the new premises of R2P, addressing the legality of the intervention, the quickness of the response and the refrain in the use of veto power in the United Nations Security Council. If you are any interested in politics, international community and human rights, we invite you to travel together with us in this book for new concepts, reflections and a (potential) glimpse of the future.

Leseprobe

TABLE OF CONTENTS

Capa

Folha de Rosto

Créditos

1. INTRODUCTION

2. THEORY

INTERNATIONAL LAW

Sources of International Law

International custom

International conventions

General Principles of Law

SOVEREIGNTY

THE RESPONSIBILITY TO PROTECT

Responsibility to Protect in the 2001 ICISS report

The World Summit 2005: R2P in UN General Assembly Consensus

R2P, The UNSG 2009 and 2010 reports, and the Three Pillars Approach

3. RESEARCH DESIGN

4. CASES AND ANALYSIS

THE KOSOVO CRISIS

Analysis under the responsibility to prevent – Pillar two:

Analysis under the responsibility to react – Pillar three:

Pacific measures:

Legitimate Intervention:

Analysis under the Responsibility to rebuild or Pillar II - “post-trauma peace-building”

THE LIBYA CRISIS

Analysis under the responsibility to prevent – Pillar two:

Analysis under the responsibility to react – Pillar three:

Pacific Measures:

Legitimate Intervention:

Analysis under the Responsibility to rebuild or Pillar II - “post-trauma peace-building”:

CASE COMPARISON TABLE:

What has changed?

5. CONCLUSION

6. LIST OF REFERENCES

Landmarks

cover

title-page

copyright-page

Table of Contents

bibliography

1. INTRODUCTION

A world-shaking sequence of humanitarian crises were put in front of the international society throughout the 1990’s. Cases of ethnic cleansing, genocide, mass displacement of people, among others, have provided a series of unfortunate humanitarian disaster in the decade. The United Nations answered it by sanctioning humanitarian intervention for human protection in some cases, like Somalia, where in other cases non-sanctioned interventions occurred (Kosovo), and in still others, as Rwanda, there was no intervention at all effectively stopping the ongoing atrocities.

By the end of the 90’s a tense conflict between intervention and State’s sovereignty had started taking great space on legal, political and philosophical debates. Kofi Annan, United Nations Secretary General by that time, together with some of the main heads of States were invoking the international community to do more to prevent the outcome of this kind of atrocities. That is the context where the concept of Responsibility to Protect (R2P) was framed.

Since then, many authors have debated some nuances of the so-called “responsibility to protect”, is it legal? (Welsh & Bandab 2014; Bellamy & Reike 2010); does it harm the sovereignty of States (Thakur 2002; Cohen 2004), is it new or just a rewritten form of already existent international rules? (Chomsky 2009); is it just a new disguised form of the great powers to impose their interests? (Bellamy 2005; Chandler 2007); and the inconsistencies regarding the commitment of the international community? (Waal 2014; Hultman 2013); or the United Nations Security Council and the veto power? (Thakur 2003). All this questions together with considerations over lack of specificity (Bellamy 2006), difficulties of implementation, failures and challenges appeared in a big range of academic works and public debates dealing with R2P. Yet, little or nothing was said regarding the factual outcomes of the R2P concept. This scenario led us to question: In which extent did the responsibility to protect theory affected the States behavior concerning human protection interventions?

Our assertion considers that R2P have the necessary characteristics to be considered an international norm and should, thus, reframe countries behavior. Figuring in the hall of the customary international norms, R2P evolved through the compromise of the International Community in dealing with the issues of human protection, it is based on a history of harmful experiences and grounded in the consensus achieved by the United Nations General Assembly in adopting the World Summit Outcome in 2005.

In order to test this hypothesis we will do a case comparison analyzing two cases in depth, one before 2001 when the International Commission on Intervention and State Sovereignty framed the concept of R2P - that will be the Kosovo Crisis - and one after 2009, most precisely after the concept was adopted by the United Nations General Assembly on the World Summit Outcome Document in 2005 and also after the UN Secretary General Report “Implementing the Responsibility to Protect”, 2009, which detailed the Responsibility to Protect and its recommended procedures. This second case study is the Libya Crisis.

In order to proceed with the comparison, we will use both the World Summit Outcome Document and the UNSG Report “Implementing the Responsibility to Protect”. We will present the series of necessary items reported in the responsibility to protect theory and create a checklist that will be used to search which of these items are respected now - after the outcome of the R2P theory - and which were already being spontaneously respected before it. This analysis will point that there was a slightly change in the behavior of intervenors for human protection, mainly regarding the legality of the intervention, the speed of the response, and the refrain in the use of veto power blocking humanitarian interventions.

2. THEORY

The responsibility to protect reframes State’s behavior on humanitarian intervention. R2P has the attributes to be an international norm, thus an instrument capable of changing the behavior of States in International Society.

International Customary Law evolves through compromise but also consistency of applications. This considered, we will, at the same time, aim to observe changes in the way countries intervene and these changes, being found, will serve as the proof of the establishment of R2P as a customary international law.

Next, we will introduce a series of concept to help us understand how the concepts and rules in the international system are constructed enabling us to understand and place R2P in this reality.

INTERNATIONAL LAW

In a very general and concise way, International Law can be defined as “the body of rules which nations consider binding in their mutual relation” (Slomanson, 2011, p. 4), or “the autonomous juridical system where the relations among sovereign States are ordered” (Rezek, 2008, p. 3). In a more stretched way, “Public International Law is the law of the political system of nation- states. It is a distinct and self-contained system of law, independent of the national systems with which it interacts, and dealing with relations that they do not effectively govern. Since there is no overall legislature or law-creating body in the international political system, the rules, principles, and processes of international law must be identified through a variety of sources and mechanisms” (McKeever, 2006).

It is important to keep in mind when studying international law that the international society is a decentralized society where is hard to find place for objectivity and absolute values. In the international society the States are organized in a horizontal way, there is not any superior authority, and the States are willing to proceed in accordance with juridic norms just in the exact extent in that these norms represent the object of their consent. In the International society, the creation of norms is a direct labor of its own recipients (Rezek 2008).

Substantial observations were made by Columbia University’s professor Louis Henkin when arguing that “First, law is politics... the distinction between law and politics is only a half-truth... Law is made by political actors, through political procedures, for political ends... Second... law is the normative expression of a political system. To appreciate the character of international law and its relation to the international political system, it is helpful to invoke domestic law as an analogue. Domestic law… is an expression of a domestic political system in a domestic society. Similarly... international law is the product of its particular law “society” its political system. International law, too, is a construct of norms, standards, principles, institutions and procedures... But the constituency of the international society is different. The “persons” constituting international society are not individual human beings but political entities, “States”, and the society is an inter-State system, a system (for centuries composed only) of States” (Henkin, 1989, p. 216).

Henkin starts to present a concept that will be fundamental all along our work, that law – and we can see clearer now in international law although the foundations of domestic law have the same basis – is a constructed phenomenon, and it is constructed reflecting the society it serves for. What will matter for us is that societies change with time, some laws of the past can be considered unacceptable nowadays as they do not reflect the animus of the current society. Societies change, grows, evolve, and so should the laws meant to serve it, together with the concepts behind it.

During a case involving France and Turkey, the Permanent Court of International Justice1 addressed the International Law stating that the “International Law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims” (PCIJ, 1927).

The international legal system presents a comparatively primitive state of affairs. Those who make the rules are also playing the game. It depends upon a blend of legal norms and politics to function properly. A state member of the community of nations is not bound to act in a certain way unless it has expressly consented to a particular course of conduct (Slomanson, 2011).

Inside the International Order, coordination is the guide principle for the organized coexistence of so many sovereignties. There is not hierarchy present among the norms of International Law in a sense that just the political analysis, independent of the juridic logics, is capable of observe and realize that one general principle, for instance the non-intervention on the domestic affairs principle, would deserve a better zeal that a mere norm incrusted in a small bilateral commercial agreement (Rezek 2008).

In the words of Mohammed Bedjaoui, former judge in the International Court of Justice “The fundamental characteristic of this international law is thus that its function is to regulate the relations between States, in other words, between entities known to be sovereign and which, in principle, assert their full independence (from) any legal order. This at once raises the problem of how these States, which affirm their sovereignty, can be subject to international law. If one postulates at the outset that there is no higher authority than the State, how can the norm of international law be produced for and applied by such a sovereign State? As might be expected, there is only (one) possible answer to this question, namely, that, historically, it has not been possible for international law be produced to be anything other than a law resting largely on consent, whether express or tacit, of States... It is more a law of co-ordination than a law of subordination” (Bedjaoui, 1991, p. 2).

Bedjaoui presents another critical point in the discussion about international law. How to deal with the question of sovereignty, how can a country accept orders from elsewhere and still claims to be keeping its sovereignty. The answer is coordination. International law is created in a consensus base, born the serve the countries relationships in the international society in the best way, it is not born from nothing, it rests solely on the agreement and acceptance of its own creators.

Inside the national juridic system we are all passive of being under jurisdiction, we are not asked in advance if we accept or refuse the local jurisdiction, it is imperative to accept it. On the other hand, the sovereign State in the international system is not originally under the jurisdiction of any court. Its acquiescence and it alone, will validate the authority of a juridic or arbitral venue, in a way that the sentence results to be obligatory and that its eventual noncompliance configures an illicit act. It is not accurate to assume that a sanction system does not exist in the international law due to the lack of central authority provided with physical force. What is right is that inside the domain of the international system, the system of sanctions is even more precarious and deficient than the one present in the majority of countries (Rezek 2008).

Following what was widely exposed in the definitions above, we can undoubtedly affirm that the international system rests upon consent. The States, following their self-determination will not subordinate themselves but to the laws they freely recognized or built.

Guiding all this history of coordination and free consent, we find a pillar principle, the so-called pacta sunt servanda, which cannot be forgotten. Pacta sunt servanda is the principle according to which what was agreed must be fulfilled. It is a norm model based on perceptive consent. Rules resulting from creative consent are those from which the international community could do without, those that have evolved in a sense, when could have taken a different way, or even the opposite way. It is impossible to conceive that even the most rudimentary communities would survive without its members recognizing, at the very least, the duty to honor the obligations freely assumed (Rezek 2008)

Following this brief overview of what is international law, showing it is coordinated and consent-based characteristics, we shall follow to the next critical question, where can international law be found? Which are the sources of international law?

Sources of International Law

The statute of the International Court of Justice in its article 38 defines the international conventions, the international custom, and the general principles of law as sources of international law, also referring to jurisprudence and teachings of the most highly qualified publicist as xiliary means in the determination of the juridic rules2. If we take a close look in the article 38, we will find a suggestion that treaties, customs, and general principles would be a primary source in International Law, followed by judicial decisions and scholarly writings as subsidiary. Notwithstanding the importance of all sources of international law, we will find some indications that some of them may be considered more important than others.

According to the United Nations International Law commission, “A rule of international law may also be superior to other rules by virtue of a treaty provision. This is the case of article 1033 of the United Nations Charter by virtue of which in the event of a conflict between the obligation of the Member of the United Nations under the Charter and their obligations under any other international agreement, their obligation under the Charter shall prevail” (Slomanson, 2011, p. 27).