Armed Conflict and Forced Migration: A Systematic Approach To International Humanitarian Law, Refugee Law, And International Human Rights Law
This chapter examines the application of three branches of international law to forced migration and refugee protection in an armed conflict. It provides a comparative assessment of these branches of international law in terms of their application to protection of refugees in war, refugees fleeing war, and refugees in post-war contexts. The analysis indicates that international humanitarian and refugee law are not a panacea in terms of protection, and that it is international human rights law that fulfils the central function of filling the gaps in protection left by humanitarian and refugee law.
This chapter focuses on human rights in Asia and the Pacific. On the level of purely legal commitments, the great majority of Asian and Pacific states have ratified both of the two major UN human rights treaties, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). Association of Southeast Asian Nations (ASEAN) is the most developed of the sub-regional organizations with respect to human rights, although that development has been fairly recent and, to date, relatively minimal. However, attempts to characterize or distinguish different approaches to human rights in Asia frequently include reference to a number of arguments put forward to justify Asian exceptionalism in this field. Perhaps the most widely asserted argument contends that ‘Asian values’ are different from the Western values that animate today’s international human rights norms.
This chapter examines the express and implied powers of international organizations to address human rights issues, standard-setting by such organizations, and the structure and functioning of the bodies and institutions they have established to consider this issue. The analysis focuses on inter-governmental organizations, but the discussion refers at times to the vast array of civil society and non-governmental organizations that have contributed immeasurably to the development of human rights law, in particular through their formal and informal participation in the work of inter-governmental organizations, their subsidiary organs, and treaty bodies. In fact, the creation of some non-governmental organizations and civil society networks preceded and to a certain extent stimulated the formation of intergovernmental organizations.
Nigel S. Rodley
This chapter examines whether so-called humanitarian intervention is a lawful exception to the international law prohibiting use of force when rescuing populations from widespread grave human rights violations, without UN Security Council authorization under Chapter VII. It considers what type or level of human rights violation or abuse justifies ‘humanitarian intervention’ if it were permitted, with reference to the R2P categories of genocide, ethnic cleansing, war crimes, and crimes against humanity. It discusses the UN Charter provisions and state practice on the prohibition on use of force, and criteria used to determine the legality of action deemed humanitarian intervention. The chapter describes tests that an intervention would have to pass and would be applicable to mitigate culpability, including gravity of the situation, political neutrality, the circumstances of the Security Council’s inability to act, and principles of necessity and proportionality. It argues that there is no humanitarian exception to the prohibition of the use of force in international law.
As a fundamental human right, the right to a fair trial ensures that no one is deprived of liberty without due process of law. The scope and meaning of fair trial guarantees, especially during periods of armed conflict, has become controversial in light of the United States’ use of military commissions for the trial of ‘unprivileged enemy belligerents’. This chapter explores fair trial guarantees as articulated in international humanitarian law (IHL) and international human rights law (IHRL). It first provides an overview of the principal treaty provisions that guarantee the right to a fair trial during armed conflict before turning to the concept of a ‘regularly constituted court’ as a vital element in fair trial guarantees. It then considers derogation from fair trial guarantees under IHL and IHRL, as well as the universal application of fair trial rights. Finally, it discusses how the normative standards of the fair trial guarantees apply in the practice of military commissions established by the United States in the context of the ‘War on Terror.’
This chapter assesses the approaches of Asia-Pacific states to international humanitarian law (IHL) and international criminal law (ICL), within the context of the international legal framework. It first addresses influential approaches in the region, including how states present themselves in relation to IHL and ICL issues. Next, it considers how regional states engage with the issue of responsibility in international law, with an emphasis on IHL and ICL. The chapter then examines acceptance of these two bodies of law, arguing that there is no hostility to the basic norms of IHL, but a more unsettled approach to ICL. There is a definite chill in respect of aspects that potentially encroach on independence, sovereignty, and territorial integrity, or that smack of Western neo-colonialism. These are of course subjectively evaluated by each state. In practical terms, this frostiness can be seen in the responses to external threats of accountability against political leaders, the exercise of universal jurisdiction, Security Council referrals to the International Criminal Court, Pillar Three of the R2P doctrine, the crime of aggression, and certain formulations of other international crimes (for example, war crimes in non-international armed conflict). However, even within these broad regional trends, there is no uniformity. There is decidedly no collective ‘Asia-Pacific approach’ that emerges from the present chapter.
This chapter explores the relationship between citizenship and refugeehood. In particular, it examines the extent to which loss of meaningful citizenship defines the predicament of the refugee. It then examines the status of refugee and refugee rights. Thirdly, it considers how refugeehood comes to an end, in particular the role of citizenship (new or restored) in ending refugeehood. Citizenship is formally viewed as bringing refugeehood to an end, whether that emerges as return to the home country or naturalisation in a new state. However, in practice, a new citizenship for many refugees remains out of reach, and the status of refugee often becomes an intergenerational carrier of civic and social exclusion. The reflects the realities of refugee containment, in contrast to the vision of shared responsibility that underpins the 1951 Convention on the Status of Refugees and the refugee regime.
Jean Michel Arrighi
This chapter examines the principles governing relations among member states of the Organization of American States (OAS) as embodied in the OAS Charter, including reciprocal assistance, collective self-defence and defence of democracy, abstention from the use of force, peaceful settlement of disputes, and non-intervention in the affairs of another member state. It begins by looking at the history of disputes in the Americas, including those arising from border delimitation and demarcation issues, and early efforts to address them. It then discusses the adoption of the Inter-American Treaty of Reciprocal Assistance in 1947 and the establishment of the OAS, together with the adoption of the American Treaty on Pacific Settlement (‘Pact of Bogota’), in 1948. The chapter considers a number of cases in which the provisions embodied in the OAS Charter, particularly the use of force in dispute settlement, were applied.
This chapter examines the roles, functions, achievements, and failures of the principal international organization — the Office of the United Nations High Commissioner for Refugees (UNHCR) — to protect refugees and internally displaced persons (IDPs), and to find solutions to their plight. It begins by outlining some of the similarities and differences between refugees and IDPs. It then discusses the complex history, development, and limitations of the legal, normative, and institutional regimes for both refugees and IDPs. Finally the chapter outlines some of the current challenges and emerging issues for responding to both kinds of forced displacement before assessing the overall successes and failures of the international regime for forced displacement.
Self-Defence, Protection of Humanitarian Values, and the Doctrine of Impartiality and Neutrality in Enforcement Mandates
This chapter begins by examining the scope of the principles of consent, neutrality/impartiality, and minimum use of force as they apply to modern United Nations peacekeeping operations. It then asks how the use of force can be used to protect humanitarian values assigned to peacekeeping operations, and how such use of force interacts with the principles of neutrality and of impartiality. The chapter also discusses the implications of ‘the responsibility to protect’ and the ‘protection of civilians’ for the competence to use force. The chapter concludes by identifying a number of difficulties encounted by peacekeeping missions in attaining humanitarian values.
Seymour Drescher and Paul Finkelman
This chapter discusses the international law elements of slavery; anti-slavery and abolitionism; abolition and international law; civilization; international law and anti-slavery; and postwar events. Over the course of the past five centuries, slavery and the slave trade have played a major role in the formation and transformation of international law. Identified in antiquity as a consensual institution of the law of nations, slavery’s standing in legal discourse was slowly modified. During four centuries after 1450, some of Europe’s metropolises began to identify themselves as lands where the ius gentium’s generic verdict on slavery no longer applied. Within a century after the outbreak of the Atlantic revolutions, the empires of slavery had become empires of anti-slavery. In international law, anti-slavery was now the gold standard of civilization. In the wake of the First World War, slavery seemed to be a vanishing institution.
This chapter investigates the structure of the rights and obligations running within human rights treaties as legal instruments designed for the realization of common humanitarian interests. It does so from a legal-positivist point of departure. The chapter first deconstructs the mantra of the so-called ‘objective’ human rights treaty obligations. It then analyses the legal position of the individuals whose rights are consecrated in human rights treaties and identifies these rights as genuine treaty entitlements. This is followed by a concise depiction of the specific legal consequences derived from the characteristics of the treaties, focusing on the hotly debated topic of reservations. The chapter concludes by comparing its views with those expressed in chapter 39 on the topic of sources of international human rights law.
Raphaël van Steenberghe
This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.
Sources of International Humanitarian Law and International Criminal Law: War/Crimes and the Limits of the Doctrine of Sources
Steven R. Ratner
This chapter contends that international humanitarian law (IHL) and criminal law (ICL) cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the International Court of Justice (ICJ) Statute inadequately describes key modes for prescribing law in these areas. International courts are particularly important for both areas, perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law, but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to promote compliance with rules. IHL and ICL also shed light on the importance of morality and ethics to the law-making process.
This chapter remarks on the pragmatic element in human rights, focusing on the question of what it means to theorize them through the lens of pragmatism, as well as probing the limits of pragmatism. It aims to provide a conspectus of the way in which some recent and influential thinkers have theorized human rights through the lens of pragmatism, and to problematize this very turn to pragmatism. The argument here is that the critical potential of pragmatism too often ends up re-entrenching a conservative, liberal political vision of human rights even as it licenses extraordinary militarism on behalf of powerful states and the international community.
This article addresses two main strands in the literature on trade and human rights, one focusing on the positive and the other focusing on the negative relationship between the two fields. It looks at three main areas in which trade and human rights are interrelated, focusing on the different approaches adopted by the two subdisciplines of trade and human rights law. Firstly, it concerns the negative effects of a country's trade policies on other countries, in particular protectionist trade policies. Then it looks at the corollary problem of the losses caused by trade liberalization. It considers the phenomenon of trade rules designed to promote free trade but which go beyond liberalization. This article concludes with an account of the ways in which the major trade and human rights institutions have reacted to these issues over the past few decades.