An equitable framework for humanitarian intervention / Ciarán Burke.
2013
KZ6369 .B87 2013 (Map It)
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Details
Author
Title
An equitable framework for humanitarian intervention / Ciarán Burke.
Published
Oxford ; Portland, Oregon : Hart Publishing, 2013.
Copyright
©2013
Call Number
KZ6369 .B87 2013
ISBN
1849464049
9781849464048
9781849464048
Description
xx, 377 pages ; 24 cm.
System Control No.
(OCoLC)821020841
Summary
This book aims at the resolution of the dilemma regarding whether armed intervention as a response to gross human rights violations is ever legally justified without Security Council authorisation. Can there be a resolution as to whether armed intervention is ever legally justified as a response to gross human rights violations without UN Security Council authorization? Thus far, international lawyers have been caught between giving a negative answer on the basis of the UN Charter's rules and a turn to ethics, declaring intervention legitimate on moral grounds while eschewing legal analysis. In this book, a third solution is proposed. The idea is presented that many equitable principles may qualify as general principles of law recognized by civilized nations - one of the three principal sources of international law - a conclusion based upon detailed research of both national legal systems and international law. These principles, having normative force in international law, are then used to craft an equitable framework for humanitarian intervention. It is argued that the dynamics of their operation allow them to interact with the Charter and customary law in order to fill gaps in the existing legal structure and soften the rigors of strict law in certain circumstances. It is posited that many of the moralists arguments are justified, albeit based upon firm legal principles rather than ethical theory. The equitable framework proposed is designed to provide an answer to the question of how humanitarian intervention may be integrated into the legal realm. This will not mean an end to controversies regarding concrete cases of humanitarian intervention. It will enable the framing of such controversies in legal terms, rather than as a choice between the law and morality. The book contains an interesting and unique point of reference for all those interested in the field of humanitarian intervention.
Bibliography, etc. Note
Includes bibliographical references (pages 351-369) and index.
Record Appears in
Table of Contents
Acknowledgements
v
Table of Cases
xi
Table of Legislation
xix
Introduction
1
1.
Humanitarian Intervention Discourse: A Debate on the Edges of the Law
6
I.
General Introduction
6
II.
Historical Introduction
8
III.
`Kosovo' as an Illegal Operation
10
IV.
`A Thin Red Line' -- The Argument of `Near-Legality'
15
V.
`Contemporary Trends' and the Reform of Customary International Law
20
VI.
Legal Inadequacy and `Solidarist Intervention'
25
VII.
`A Custom More Honour'd in the Breach than in the Observance' -- The Turn to Ethics
29
VIII.
Illegal International Law Reform: Ethics in Action
32
IX.
Necessity as the Mother of Invention
36
X.
Taking Human Rights Seriously? From Just War to Neo-Imperialism
44
XI.
Obscuring the Law
57
XII.
Responsibility to Protect
59
A.
Explaining the Responsibility to Protect
59
B.
Deconstructing the Responsibility to Protect
66
XIII.
Conclusion
77
2.
Third Source of International Law
90
I.
Introduction
90
II.
Article 38(1) as the Wellspring of International Legal Sources
90
A.
Some Preliminary Remarks on Treaty Interpretation
96
B.
Use and Development of General Principles in Early International Arbitral Practice
99
III.
General Principles of Law in the World Court
111
A.
General Principles by the Front Door: An Unpopular Source of Law?
111
B.
General Principles by the Back Door
116
IV.
Conclusion
123
3.
Equity as `General Principles' in the Legal Systems of `Civilised Nations'
126
I.
Introduction: A Bayonet to Prick the Conscience
126
II.
Legal Rigidity as the Crux of the Problem
129
A.
Equity as a Panacea: The History of Equity in the Common Law
130
B.
Common Law Equity and Legal Rigidity
146
III.
Equity outside the English Common Law Model
147
A.
History of Equity outside the English Common Law
149
IV.
Common Core of Equity
196
V.
Conclusion: Equity as a Hallmark of `Civilised' Legal Systems
200
4.
Equity in International Legal Practice
204
I.
Introduction
204
II.
Equitable General Principles in the Judgments of the World Court
206
A.
Good Faith, Clean Hands and Equitable Maxims -- The Meuse Case
209
B.
Ubi ius, ubi remedium
215
C.
`Substance Over Form' and Equitable Flexibility
219
D.
Estoppel -- The Temple of Preah Vihear and Other Stories
223
E.
Equity, General Principles and Human Rights
230
F.
Maritime Delimitation -- Equity Praeter Legem
234
III.
Equity by Analogy -- The Third Category of the Third Source
239
IV.
Conclusion
249
5.
Framework for Equitable Humanitarian Intervention
252
I.
Introduction
252
II.
Relationship between Equity, General Principles and Other Sources of International Law
253
A.
General Principles, Treaty and Custom
254
B.
General Principles and Human Rights Norms
258
C.
General Principles and Ius Cogens
262
D.
Unconstitutional Constitutional Amendments
268
E.
State (Ryan) v Lennon
272
III.
Third Exception? International Equity and Humanitarian Intervention
286
A.
Problem: The United Nations Charter and Human Rights
287
B.
Solution? Equity and General Principles of Law as Extraneous Norms
289
C.
Framework for Equitable Humanitarian Intervention
297
IV.
Conclusion
327
Conclusion
333
I.
Libya 2011
333
II.
Syria 2012
343
III.
To Be or Not To Be?
349
Bibliography
351
Index
371