Search Results

The draft proposals for the United Nations Charter that emerged from Dumbarton Oaks allowed only for one brief mention of human rights. The final version agreed at San Francisco gave human rights a much higher profile. Why did this change take place? There is a substantial body of literature that accounts for it exclusively in terms of the activities of the US Consultants (representatives of NGOs), attached to the US Delegation. However, the role of Latin American states, as well as of the Soviet Union, needs to be remembered. The chapter draws attention to the problems surrounding the heroic role of the US consultants. It traces the evolution of thinking about human rights during the war years, culminating in the attendance of some 1,200 representatives of NGOs at the San Francisco conference. There is no doubt, therefore, that state officials were conscious of wide public expectations on the human rights front. Since popular support for the UN would be vital to its future effectiveness, respect for human rights can be seen as a kind of ‘social wage’ in return. This gave the individual a new standing in international society and international law.

Argues that we are witnessing the development of a new norm of military intervention for humanitarian purposes in contemporary international society. Since the end of the Cold War, the United Nations Security Council has been more active in the realm of intervention, extending its Chapter VII powers into matters that had previously belonged to the domestic jurisdiction of states. Without the material power of Western states, this activism would not have been possible. However, a purely materialist explanation for this development fails to consider the changed normative context within Western states that permitted, and in some cases encouraged, intervention. While normative evolution has occurred, it is also limited in its scope, specifically over the question of whether military intervention must have Security Council authorization.

This chapter examines critically the way in which national sovereignty has limited and still limits the implementation of international human rights. It describes the relevance of the United Nations Charter, General Assembly resolutions, United Nations practices, and international court cases. After identifying the unresolved issues in international law, it argues that international law ought not to be based exclusively on the consent of nation-states, that individual states or coalitions of states ought not to be legally permitted to intervene by the use of military force to stop or prevent the violation of human rights without the authorization of the Security Council, and that the power of the General Assembly to call on states to intervene with coercive measures short of military force ought not to be rigidly limited.

This chapter discusses ‘constitutional’ interpretation of a Charter. It compares the United Nations Charter and the United States Constitution, citing that both provide institutional mechanisms to accomplish goals identified only as ‘majestic generalities.’ As with the U.S. Constitution, there also appears to be a separation of powers notion at work within the UN Charter. The chapter also provides details on the people, procedure, and reason behind interpreting a Charter. It considers how international organization organs have interpreted their chapters, indicating the malleability of both institutional charters and the underlying rules of treaty interpretation. In detailing the procedure of interpreting a Charter, it mentions the Vienna Rules of Treaty Interpretation, institutional practice, implied powers, and intent. The interpretation of international organization charters is more than the sum of the application of rules — whether contained in the Vienna Convention on the Law of Treaties or reserved for ‘constitutional’ treaties.

Outlines and evaluates the political, legal, and ethical objections to humanitarian intervention. In so doing, it questions not only whether the doctrine of ‘sovereignty as responsibility’ has taken hold in international society, but also whether it should – particularly in the form suggested by Western states. The author argues that the ethical position of pluralism – as articulated by non-Western states – represents the most compelling case against humanitarian intervention, by emphasizing the impact on international society of relaxing the norm of non-intervention. Despite these pluralist objections, military intervention in cases of supreme humanitarian emergency can be defended on moral grounds, provided the intervention meets certain tests of legitimacy. Given the unintended consequences of military action, the author also suggests that more attention should be paid to the non-military means of operationalizing ‘sovereignty as responsibility’.

Before 1945, there was very little general international concern with colonial issues, and still less with the progress of colonised peoples to self-government. At the San Francisco Conference, however, more extensive provision for colonial territories was made in the form of Chapter XI of the United Nations (UN) Charter, entitled ‘Declaration Regarding Non-Self-Governing Territories’. Chapter XI is an attempt to apply somewhat similar ideas to those embodied in Article 22 of the Covenant to a far broader category of territory. This chapter examines the dispositive aspects of Chapter XI and the extensive practice pursuant to Chapter XI. The status of that practice was historically controversial, but most UN members took an extensive view of Chapter XI, and in general these views prevailed. Indeed, it has been largely through the medium of Chapter XI that UN members have extended and elaborated the operation of the principle of self-determination.

This chapter addresses questions of safeguarding human rights in the course of Council action directed towards ‘other’ goals rather than the direct protection of human rights, i.e., mainly ‘classical’ goals of maintaining and restoring international peace. In particular, it evaluates how human rights considerations and concerns can be better integrated in the decision-making processes of the Security Council. It takes as its starting point the idea of an ‘international rule of law’ as a concept expressing, inter alia, certain expectations regarding the place of human rights in the work of the Council. It then addresses the foundation and the extent of the human rights obligations of the Council in the present international legal order. The chapter analyses the decision-making process of the Council with a view to the problems of a lack of transparency and legitimacy. Subsequently, an effort is made to identify types of Security Council action in which the problem of safeguarding human rights is acute. The final section explores different options for enhancing the role for human rights in the decision-making of the Council.

Three main themes emerge from this edited collection. First, there has been an increased incidence of intervention for humanitarian purposes since the end of the Cold War. In these cases, the alleged conflict between sovereignty and human rights has been addressed in one of two ways: through an evolution in the notion of sovereignty, from ‘sovereignty as authority’ to ‘sovereignty as responsibility’; and through an expanded definition of what constitutes a threat to international peace and security under Chapter VII of the UN Charter. Second, despite this new climate of permissiveness, humanitarian intervention remains a controversial norm in international relations – largely because of continued opposition from certain members of international society, and concerns about its potentially negative consequences. Third, while the post Cold War period has seen some successful cases of intervention to address humanitarian catastrophes, the current capability of international organizations to undertake humanitarian interventions remains limited. Indeed, as the book demonstrates, the issue of humanitarian intervention has the potential to divide international institutions such as the UN and damage their credibility.

This chapter reports some key problems of the meaning of self-defence in the modern law, more especially in the context of Article 51 of the United Nations Charter. In particular, some suggestions are made as to the present state of the customary law, and the problems relating to anticipatory self-defence and proportionality are examined. Subsequently, the relevant provisions of the United Nations Charter and the problems of interpretation to which they give rise are discussed. Finally, an attempt is made to establish the relation of Article 51 of the Charter and the customary law, with some indication of the effects which the article has had on recent state practice. It is stated by Article 51 that the right of self-defence stays unimpaired ‘if an armed attack occurs against a Member of the United Nations’. There is considerable justification for the conclusion that the right of self-defence, individual or collective, which has received general acceptance in the most recent period has a content identical with the right expressed in Article 51 of the Charter.

This chapter focuses on the legal issues of the Security Council's actions in favour of human rights. In particular, it addresses the problem of the qualification of human rights violations as a threat to international peace within the meaning of Chapter VII of the UN Charter: Was the Council competent to broaden the notion of a threat to the peace to include human rights violations? Is the Council authorized to act in internal matters of a state? Can the Council hold responsible for human rights violations not only states but also de facto governments and non-state entities? Who can legally review such qualifications made by the Security Council? The chapter distinguishes five major categories of measures applied by the Council in order to enforce fundamental norms of international human rights and humanitarian law: the sanction of nullity and non-recognition, non-military measures, in particular economic sanctions, military force, measures in the context of criminal law, and monitoring and fact-finding.

This chapter explores the bases of the law in the period since the Second World War. Some possible sources of weakness in the legal régime based on the Kellogg—Briand Pact and the United Nations Charter are noted. There are other legal instruments considered in relation to the use of force in the period since 1945. The five principles of Peaceful Co-Existence or Panch Shila are given. In any evaluation of the legal developments after 1945, the increasing universality and effect of the obligations of the United Nations Charter must be emphasized. There are two relatively minor characteristics of the period since 1945 that may be noticed briefly.

This chapter analyses how the role of the UN Security Council in the promotion and protection of human rights developed since 1945: an organ not endowed with any specific powers in the field of human rights became the ‘centre-piece of the human rights protection system’ of the international community. It describes the place of the Security Council in the framework of the UN human rights institutions, and how the Council came to regard human rights violations as a threat to international peace, making it possible for the Council to take action against such violations with measures provided for in Chapter VII of the UN Charter. It identifies three human rights which have attracted most of the Council's attention: the right of peoples to self-determination, the right to democratic governance, and the fundamental rights (arising under international human rights law and international humanitarian law) of civilian populations and minorities during war and internal conflict.

This chapter explains how Latin American feminists pushed women’s rights into the United Nations Charter at the 1945 United Nations Conference on International Organization (UNCIO) in San Francisco. Bertha Lutz and a number of Latin American feminists with whom she collaborated–Minerva Bernardino from the Dominican Republic, Amalia de Castillo Ledón from Mexico, and Isabel Pinto de Vidal from Uruguay–as well as Jessie Street from Australia, were responsible for pushing women’s rights into several parts of the UN Charter and for proposing what became the UN’s Commission on the Status of Women. They did this over the express objections of the U.S. and British female delegates to the conference who believed that women’s rights were too controversial or not important enough to include. These Latin American women also worked alongside representatives from “smaller nations” and from U.S. non-governmental organizations like the NAACP to push “human rights” into the Charter. At the UNCIO, the racism that Lutz experienced from U.S. and British delegates, lack of U.S. and British support, and overweening power of the "Big Four" in the constitution of the United Nations, caused her to turn away from her long-time Anglo-American-philia and identify as a "Latin American."

After World War II, the international legal restrictions on the use of force were finally codified in the United Nations Charter. The United States championed the Charter until Morgenthau and his successors persuaded many policymakers to pursue military superiority in the world in disregard to an international law seen as lacking powerful means of enforcement. Henkin and others responded that it is not enforcement that gives law its authority but actual compliance. Compliance theory provided an answer to the international law deniers that worked for a time until international law became the target not only of political science “realists” but also of post-modern legal critics. Post-modernism, however, also held the seeds of renewal for international legal theory with its critique of rationalism, positivism, and imperialism.

This chapter presents a critical account of the Security Council's involvement in human rights matters since the early 1990s from a legal perspective. The Council has often operated outside the original framework of the UN Charter, taking measures not provided for in the text of the Charter and probably not even anticipated by its drafters. It is argued that the action of the Council has produced positive effects for human rights when the Council limited itself to measures of a general character and the establishment of autonomous bodies (such as the ad hoc criminal tribunals for the former Yugoslavia and Rwanda) able to balance contradictory interests in specific cases. On the other hand, action of the Council directly interfering with individual rights, as in the case of targeted sanctions, is likely to have resulted in violations of human rights.

This introductory chapter aims at providing a framework for this book which deals with different aspects of the issue of human rights and the UN Security Council. On the one hand, the Security Council tries to promote and protect fundamental human rights in situations of war and internal conflict, as well as to prevent and punish (by means of ad hoc criminal tribunals) grave violations of human rights and international humanitarian law. On the other hand, action taken by the Security Council has given rise to human rights concerns. In particular, the comprehensive sanctions against Iraq and the ‘targeted sanctions’ imposed on individuals in the fight against terrorism have been sharply criticized as detrimental to the human rights of the affected persons. The chapter argues that the efforts of the Council, though still inconsistent and in most cases inadequate, can be described as significant steps towards an international order of the kind Sir Hersch Lauterpacht referred to as an ‘organised civitas maxima, with the individual human being in the very centre of the constitution of the world’.

Following the 2015 Paris attacks, one of the most discussed issues is whether the Paris incidents constitute an ‘armed attack’ requisite to trigger the right of self-defence in light of the wording of Article 51 of the UN Charter of 1945. Indeed, should the responses of the Member States to the Paris attacks, activating the mutual assistance clause, be seen as a move towards the formation of a new customary rule reshaping the content of the right of individual or collective self-defence in accordance with Article 51 of UN Charter and customary law? Or should that invocation of Article 42 (7) TEU be considered a violation of the UN Charter law of self-defence? This chapter examines the textual and contextual elements of Article 51 of the UN Charter and the practice of States since then, mainly in the context of the activity of the UN Security Council. After a careful examination of those elements, it concludes that if it can be said that the existing rule in international law in both conventional and customary law allowing states to have recourse to the use of force in self-defence can only be legally exercised in the presence of an armed attack committed by a state, it can be argued that the current practice of states appears to be heading in another direction. For the drafters of Article 51 of the UN Charter the right of self-defence was already ‘inherent’. If they had been in the current situation, they may have extended this right to cases of major terrorist attacks. In view of this context, the invocation of Article 42 (7) TEU in response to a serious terrorist attack, like those in Paris in November 2015, cannot be considered a violation of Article 51 of the UN Charter. Many of the EU Member States are prepared to entertain a new interpretation of that provision, at least that portion which respects the scope of the ratione personae.

This chapter focuses on the role and responsibility of the Security Council to maintain international peace and security through the prevention of atrocity crimes, as reflected in the World Summit Outcome Document. It is argued that, considering the near impossibility of seeking consensus by the veto-wielding members of the Council, in some cases that require its intervention, it is essential that regional institutions assume a greater role in preventing and protecting populations against atrocity crimes. This chapter argues for a renewed approach to international efforts to provide requisite support to these institutions to ensure that they assume a proactive role in protecting populations.