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THE RESPONSIBILITY TO PROTECT AND THE USE OF FORCE IN INTERNATIONAL LAW
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By remaining epistemologically committed to an outdated distinction between facts and values, traditional definitions of legitimacy either divest the concept of an important critical component or fail to properly anchor it in the social reality. As an alternative, the article proposes a constitutive theory of legitimacy that reconciles the epistemological tension via the concepts of fairness and tractability and bridges the theoretical gap via the concept of deliberative legitimacy. By applying it to the issue of the use of force, the article argues that a normatively sound and politically relevant model of legitimacy must take into account both to the manner in which actors’ commitment to social norms is crafted and the type of conditions that facilitate or constrain the definition, contestation, and adjudication of what counts as legitimacy in a particular political context.
In the post-2001 era, many fear that the ‘international community’ that had been developing in the years after the Cold War is becoming irremediably divided. Challenges to the ‘international community’ have come from such radically disparate quarters as US unilateralism and Islamicist attacks on ‘Western’ internationalism. Many worry that such divisions will severely hamper the ability of the international community to intervene in local crises, whether for humanitarian purposes or to stop ethnic conflict. This article challenges the major assumptions upon which this common view is based. First, it rejects the notion that the ‘international community’ ever had the kind of unity that is retrospectively attributed to it. Secondly, it rejects the notion that such an illusory unity is necessary for the legitimacy of international interventions even of the boldest variety. Rather, by examining recent fears in light of the history of bold international action since World War I, it develops a complex schema for evaluating forms of international legitimacy and forms of critique of that legitimacy. In light of this analysis, it shows how legitimacy can be achieved, even if only provisionally, even under the most fractious international conditions. In particular, it shows how the achievement of such legitimacy depends on distinguishing actions in the name of internationalism from seemingly similar actions that lie in international law’s discredited colonial past.
This discussion focuses on the content of the responsibility to protect the norm. It specifically addresses the historical roots and development of the norm by describing its fundamental differences from the doctrine of humanitarian intervention. The legal heart of the responsibility to protect concept and questions of when and how the norm is engaged are also examined. Finally, the discussion explores the role that the UN institutions can play in interpreting and applying the norm, as well as the mechanisms of cooperation in protection available to the international community.
Humanitarian intervention, a long-standing issue in international legal writing and in state practice, has become a major focus of international legal thinking and military action. Since the early 1990s, there have been new and unexpected elements in the practice of intervention, in its authorization, and in debates about it. Action by outside military forces in several territories — northern Iraq, Somalia, Haiti and Kosovo — has provoked questions about whether there is a right of humanitarian intervention. In addition, the debate on the subject has been spurred by the strong sense that there were crises (most notably, the genocide in Rwanda in 1994) in which the international community should have intervened promptly but failed to do so.
The Responsibility to Protect (R2P) has come a long way in a relatively short space of time. From inauspicious beginnings, the principle was endorsed by the General Assembly in 2005 and unanimously reaffirmed by the Security Council in 2006 (Resolution 1674). However, the principle remains hotly contested primarily because of its association with humanitarian intervention and the pervasive belief that its principal aim is to create a pathway for the legitimization of unilateral military intervention. This article sets forth the argument that a deepening consensus on R2P is dependent on its dissociation from the politics of humanitarian intervention and suggests that one way of doing this is by abandoning the search for criteria for decision-making about the use of force, one of the centre pieces of the International Commission on Intervention and State Sovereignty 2001 report that coined the phrase R2P. Criteria were never likely to win international support, the article maintains, and were less likely to improve decision-making on how best to respond to major humanitarian crises. Nevertheless, R2P can make an important contribution to thinking about the problem of military intervention by mitigating potential 'moral hazards', overcoming the tendency of international actors to focus exclusively on military methods and giving impetus to efforts to operationalize protection in the field
Divulgação dos SUMÁRIOS das obras recentemente incorporadas ao acervo da Biblioteca Ministro Oscar Saraiva do STJ. Em respeito à lei de Direitos Autorais, não disponibilizamos a obra na íntegra. STJ00077927 342.7 C737a 6.ed.
Divulgação dos SUMÁRIOS das obras recentemente incorporadas ao acervo da Biblioteca Ministro Oscar Saraiva do STJ. Em respeito à lei de Direitos Autorais, não disponibilizamos a obra na íntegra. 342.7 T833h Apresenta a consciência humana nos fundamentos, formação e evolução do Direito Internacional e a emanicipação do ser humano como sujeito do Direito Internacional. Exibe também, o primado do Direito Internacional sobre a força e as convergências e expansão dos regimes jurídicos de proteção internacional dos direitos da pessoa humana. Ao final, explica o rumo ao novo jus gentium, o Direito Internacional da humanidade.
The unprecedented threat posed by terrorists and rogue states armed with weapons of mass destruction cannot be handled by an outdated and poorly enforced nonproliferation regime. The international community has a duty to prevent security disasters as well as humanitarian ones -- even at the price of violating sovereignty
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