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An Equitable Framework for Humanitarian Intervention

An Equitable Framework for Humanitarian Intervention

Author: Ciarán Burke
Publisher: Hart Publishing
ISBN: 9781849464048
Published In: May 2013
Format: Hardback , 398 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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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. 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 volume, a third solution is proposed. The idea is presented that many equitable principles may qualify as 'general principles of law recognised by civilised 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 rigours 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.

Ciarán Burke is an academic assistant at the European University Institute, Florence, and a visiting lecturer at the University of Passau. He also works as a freelance legal consultant.

'...has potential to become one of the most important books in public international law of the decade, or in a generation'.
Martin Scheinin, Professor of Public International Law, European University Institute, Florence