With the advent of Human Rights in international law, several core ideas of the traditional system of international law have been challenged, such as the principle of non-interference and state sovereignty, as well as the prohibition of the use of force, especially with the decision that massive human rights violations can form a threat to international peace and security to which the UN Security Council can respond with measures according to Chapter VII of the UN Charter.
While at first sight a change of paradigm in international law, or in any legal system, is not negative per se, the rules which collide with a truly effective and universal protection of HR through international law are the very rules which form the foundation for international peace and security, the primary reason for the existence of international law. While international peace and security require the stability provided by the Westphalian system, they can at the same time be endangered by massive violations of human rights. On the other hand can Human Rights only be enjoyed in times of peace while the Westphalian system can limit the effective and universal enforcement of Human Rights in cases in which the UN Security Council has failed to take action under Chapter VII.
This short book is an attempt at reconciling these needs which are at times direct against each other, at times interlinked ones with a special focus on massive violations of human rights which are not being addressed effectively by the UN Security Council.
To this end, we will look at the Human Rights dimensions of international peace and security outlined above before we come to the core issue of the paper, the legality of the use of force for the protection of Human Rights in cases in which the UN Security Council fails to act, or, in other words, the question of in how far the need for universal respect for human rights can overrun the need for peace, given the links between both factors indicated above.
Table of Contents
Preface
Chapter 1 – Introduction: Human Rights in Foreign Policy and International Relations
I. Human Rights as a concern in international relations
II. Obstacles on the Road to enduring International Peace and Security and Universal Respect for Human Rights
III. Sovereignty and Human Rights
Chapter 2 – The First Dimension: Peace as a prerequisite for the complete enjoyment of all Human Rights
Chapter 3 – The Second Dimension: Massive Violations of Human Rights as a threat to international peace and security
Chapter 4 - The Third Dimension: The use of force against other states for the protection of Human Rights
I. Introduction: The General Prohibition of the Use of Armed Force
II. Current possibilities for responses to atrocities
1. UN Security Council: Chapter VII
2. UN General Assembly: Uniting for Peace
III. The emerging concept of Humanitarian Intervention outside the UN framework - Legal, Moral and Political Considerations
1. Introduction
a) What is Humanitarian Intervention ?
b) Humanitarian Intervention in the past and today
c) Political and Legal Considerations on Humanitarian Intervention de lege lata and de lege ferenda
2. Political and moral aspects of Humanitarian Intervention
3. The legality of Humanitarian Intervention under current International Law
a) State sovereignty and Art. 2 (4) UN Charter
b) Justification under already existing rules of international law ?
aa) Justification under the UN Charter ?
bb) The position of the International Court of Justice
cc) The concept of reprisals as legal ground for a justification of Humanitarian Interventions under international law
dd) A "state of necessity" as the justification for Humanitarian Intervention
ee) Customary Law: Humanitarian Intervention in state practice after 1945
ff) Conclusion: The need for legal reform
4. The emerging concept of Humanitarian Intervention: criteria for the legality of Humanitarian Intervention
a) The need for criteria and the possibility to find them
b) Massive and systematic Human Rights violations
aa) Genocide
bb) Crimes against humanity
cc) War crimes
dd) Feasibility of a wide acceptance of the "Article 5 - solution"
ee) Effectiveness of the Article 5 - solution
ff) Conclusion
c) Failure of peaceful means of Human Rights enforcement
d) Failure of the UN Security Council
e) Failure of the UN General Assembly to act
f) Multilateralism and state interests
g) Respect for Human Rights and International Humanitarian Law
5. Conclusions
IV. Conclusion: A proposal for a general procedure for the enforcement of Human Rights
Chapter 5 – Conclusions
Objectives and Topics
The primary objective of this book is to examine how the requirements for universal respect for Human Rights and the maintenance of international peace and security can be reconciled under international law. The central research focus lies on the legality of the use of force for the protection of Human Rights, specifically investigating under which conditions such interventions are permissible when the UN Security Council fails to take action.
- The tension between state sovereignty and universal Human Rights.
- Peace as a fundamental prerequisite for the protection of Human Rights.
- The legality of Humanitarian Intervention under current international law and the UN Charter.
- Criteria for the potential future legality of Humanitarian Intervention.
- Proposals for a general procedural framework for the enforcement of Human Rights.
Excerpt from the Book
I. Human Rights as a concern in international relations
Since 1945 the growth of a language and practice of universal Human Rights have more and more become a matter of concern in international relations and the idea of Human Rights shaped the international community and its “moral imagination” more than anything else after World War II and the impact of the inclusion of Human Rights in International Law is second only to the ius cogens prohibition of the use of force in terms of the importance in the context of the development of international law in the 20th century.
International politics reflect this change: Economic cooperation, e.g. between the EU and third nations, is used to exercise pressure in favor of human rights, international organizations such as the UN, OSCE or EU, which originated from security or economic interests, have become platforms for the promotion of human rights etc. Yet there remain obstacles on the road to both enduring international peace and security and universal respect for human rights.
Summary of Chapters
Chapter 1 – Introduction: Human Rights in Foreign Policy and International Relations: This chapter contextualizes the rise of Human Rights in international relations since 1945 and identifies the core challenges of reconciling state sovereignty with universal rights.
Chapter 2 – The First Dimension: Peace as a prerequisite for the complete enjoyment of all Human Rights: This section establishes that international peace and security are interdependent with the full realization of Human Rights, noting that conflicts often necessitate the derogation of specific legal protections.
Chapter 3 – The Second Dimension: Massive Violations of Human Rights as a threat to international peace and security: This chapter analyzes how gross human rights abuses are recognized by the UN as threats to global security, necessitating intervention.
Chapter 4 - The Third Dimension: The use of force against other states for the protection of Human Rights: This central chapter explores the legality of Humanitarian Intervention, the role of the UN Security Council, and the criteria for potential future legal frameworks.
Chapter 5 – Conclusions: This chapter summarizes the necessity of reconciling peace and human rights, suggesting that a new rule of customary international law may be required to address cases where the UN remains deadlocked.
Keywords
Humanitarian Intervention, International Law, Human Rights, UN Charter, State Sovereignty, International Security, Use of Force, Chapter VII, Ius Cogens, Humanitarian Crisis, Customary Law, Peace, Multilateralism, Accountability, Rome Statute.
Frequently Asked Questions
What is the core subject of this publication?
The book addresses the legal and moral dilemmas surrounding the protection of Human Rights through military intervention, specifically when international bodies like the UN Security Council are unable to act.
What are the central themes discussed?
The central themes include the evolution of Human Rights in international relations, the tension between Westphalian sovereignty and universal human rights, and the procedural failures of current international enforcement mechanisms.
What is the primary research objective?
The goal is to determine if and how the use of force for human rights protection can be legally reconciled with the prohibition of the use of force under the UN Charter.
Which scientific methodology is employed?
The author employs a legal-analytical approach, examining international treaties, UN resolutions, state practice, and the interpretations of international law by bodies like the International Court of Justice.
What is covered in the main body of the text?
The text examines the "three dimensions" of human rights and peace, analyzes the limitations of Chapter VII of the UN Charter, and explores the feasibility of criteria for "Humanitarian Intervention" as a future rule of customary law.
Which keywords best characterize the work?
Key concepts include Humanitarian Intervention, International Law, Sovereignty, and the UN Charter.
How does the author view the role of the UN Security Council?
The author highlights the severe limitations of the Security Council's decision-making process, specifically the veto power, which often prevents effective action against massive human rights violations.
What specific proposal is made in the conclusion?
The author proposes a tiered enforcement procedure, beginning at the national level, progressing to regional mechanisms, and relying on global frameworks as a last resort, emphasizing the principle of subsidiarity.
- Citation du texte
- Rechtsanwalt Stefan Kirchner (Auteur), 2008, Human rights and international security, Munich, GRIN Verlag, https://www.grin.com/document/117000
