Janik: You Can’t Have One Without the Other, Can You? Assessing the Relationship between the Use of Force in the Name of Human Rights and Regime Change

Ralph R.A. Janik (Univ. of Vienna - Law) has posted You Can’t Have One Without the Other, Can You? Assessing the Relationship between the Use of Force in the Name of Human Rights and Regime Change (Czech Yearbook of Public & Private International Law, forthcoming). Here's the abstract:

In the post-Cold War world, military operations have often been justified by varying degrees of human rights considerations, a preventive approach towards self-defence, and the morality of overthrowing oppressive regimes. During the accompanying revision of the all too bothersome principle of sovereignty, the focus has shifted away from international peace and security in the original sense, i.e. understood as applying in inter-state relations, towards individuals as the ultimate beneficiaries of the international order. The practical implementation of this doctrinal approach has often led to criticism and sat uneasy with governments suspicious that it could be used against them; more often than not, alleged human rights considerations are deemed as merely providing a convenient shield for geostrategic goals. Many states fear that noble intentions may in reality be abused to impose forcible regime change. Upon closer inspection these fears are well-founded since the use of force in the name of human rights and regime change proceed from the same basic assumption, namely sovereignty as being conditional upon a certain conduct of states and their governments towards their citizens. Thus, it is only a small step from intervening on behalf of human rights to overthrowing the government responsible for mass atrocities. The ius post bellum aspect often even calls for a reorganization of the internal legal system or at least an exchange of leaders. Going even further, some just war theorists argue that no oppressive regime may rely on sovereignty as a shield from forceful interference because of its lack of legitimacy and regardless of the actual perpetration of massive human rights violations. Given the proximity between the Responsibility to Protect doctrine and just war theory, such assumptions need to be taken seriously. After all, the international order seems to be at a crossroads between traditional law and the notion of pluralism and ambitions to establish a worldwide concert of democracies – with the Responsibility to Protect doctrine and just war theory serving as the legal and doctrinal tool in justifying action on behalf of the latter. The ultimate question that still warrants an answer from a doctrinal viewpoint, especially when considering the various historic examples in this regard, is whether there can be an actual implementation of the Responsibility to Protect doctrine in the sense of using force without imposing regime change.