Muutke küpsiste eelistusi

E-raamat: An Equitable Framework for Humanitarian Intervention [Hart e-raamatud]

Teised raamatud teemal:
  • Hart e-raamatud
  • Hind: 89,98 €*
  • * hind, mis tagab piiramatu üheaegsete kasutajate arvuga ligipääsu piiramatuks ajaks
An Equitable Framework for Humanitarian InterventionSuurem pilt
Teised raamatud teemal:
Wiley OnlineRohkem infot Hart e-raamatute kohta
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 ('positivists') and a 'turn to ethics,' declaring intervention legitimate on moral grounds while eschewing legal analysis ('moralists'). 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 (though a category that is often overlooked) - 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. Certainly, this will not mean an end to controversies regarding concrete cases of humanitarian intervention. However, 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. (Series: Studies in International Law)

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 ('positivists') and a 'turn to ethics,' declaring intervention legitimate on moral grounds while eschewing legal analysis ('moralists'). 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 (though a category that is often overlooked) - 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. Certainly, this will not mean an end to controversies regarding concrete cases of humanitarian intervention. However, 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. (Series: Studies in International Law - Vol. 45)
Acknowledgements v
Table of Cases
xi
Table of Legislation
xix
Introduction 1(5)
1 The Humanitarian Intervention Discourse: A Debate on the Edges of the Law
6(84)
I General Introduction
6(2)
II Historical Introduction
8(2)
III `Kosovo' as an Illegal Operation
10(5)
IV `A Thin Red Line' -- The Argument of `Near-Legality'
15(5)
V `Contemporary Trends' and the Reform of Customary International Law
20(5)
VI Legal Inadequacy and `Solidarist Intervention'
25(4)
VII `A Custom More Honour'd in the Breach than in the Observance' -- The Turn to Ethics
29(3)
VIII Illegal International Law Reform: Ethics in Action
32(4)
IX Necessity as the Mother of Invention
36(8)
X Taking Human Rights Seriously? From Just War to Neo-Imperialism
44(13)
XI Obscuring the Law
57(2)
XII The Responsibility to Protect
59(18)
A Explaining the Responsibility to Protect
59(7)
B Deconstructing the Responsibility to Protect
66(11)
XIII Conclusion
77(13)
2 The Third Source of International Law
90(36)
I Introduction
90(1)
II Article 38(1) as the Wellspring of International Legal Sources
90(21)
A Some Preliminary Remarks on Treaty Interpretation
96(3)
B Use and Development of General Principles in Early International Arbitral Practice
99(12)
III General Principles of Law in the World Court
111(12)
A General Principles by the Front Door: An Unpopular Source of Law?
111(5)
B General Principles by the Back Door
116(7)
IV Conclusion
123(3)
3 Equity as `General Principles' in the Legal Systems of `Civilised Nations'
126(78)
I Introduction: A Bayonet to Prick the Conscience
126(3)
II Legal Rigidity as the Crux of the Problem
129(18)
A Equity as a Panacea: The History of Equity in the Common Law
130(16)
B Common Law Equity and Legal Rigidity
146(1)
III Equity outside the English Common Law Model
147(49)
A The History of Equity outside the English Common Law
149(47)
IV The Common Core of Equity
196(4)
V Conclusion: Equity as a Hallmark of `Civilised' Legal Systems
200(4)
4 Equity in International Legal Practice
204(48)
I Introduction
204(2)
II Equitable General Principles in the Judgments of the World Court
206(33)
A Good Faith, Clean Hands and Equitable Maxims -- The Meuse Case
209(6)
B Ubi ius, ubi remedium
215(4)
C `Substance Over Form' and Equitable Flexibility
219(4)
D Estoppel -- The Temple of Preah Vihear and Other Stories
223(7)
E Equity, General Principles and Human Rights
230(4)
F Maritime Delimitation -- Equity Praeter Legem
234(5)
III Equity by Analogy -- The Third Category of the Third Source
239(10)
IV Conclusion
249(3)
5 A Framework for Equitable Humanitarian Intervention
252(81)
I Introduction
252(1)
II The Relationship between Equity, General Principles and Other Sources of International Law
253(33)
A General Principles, Treaty and Custom
254(4)
B General Principles and Human Rights Norms
258(4)
C General Principles and Ius Cogens
262(6)
D Unconstitutional Constitutional Amendments
268(4)
E The State (Ryan) v Lennon
272(14)
III The Third Exception? International Equity and Humanitarian Intervention
286(41)
A The Problem: The United Nations Charter and Human Rights
287(2)
B The Solution? Equity and General Principles of Law as Extraneous Norms
289(8)
C A Framework for Equitable Humanitarian Intervention
297(30)
IV Conclusion
327(6)
Conclusion
333(18)
I Libya 2011
333(10)
II Syria 2012
343(6)
III To Be or Not To Be?
349(2)
Bibliography 351(20)
Index 371
Dr Ciarán Burke is a Lecturer at the University of Passau, and a Visiting Lecturer at the Brussels School of International Studies. He is also a freelance legal consultant.
Püsilink: https://www.kriso.ee/db/9781782251262_pe.html
Märksõnad: