The Right to Humanitarian Assistance

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1Professor of International Law at the University of São Paulo, Brazil.

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THE R IGHT TO HUMANITARIAN ASSISTANCE

Alberto do Amaral Jr.1

I NTRODUCTION

The 21stcentury has witnessed profound changes in contemporary international relations. Both the

advent of the globalization process and the end of the cold war brought about many transformations leading

to the crisis of Westphalia order. The distribution of power among States, authority relationships between

collective organizations and individuals, and the analytical capacity of citizens have been radically altered,

and result in an entirely new international scenario. Such a vast and complex process of change has

undermined State sovereignty. Domestic and international organizations have increasingly absorbed a

number of State prerogatives. With the sovereignty crisis, human rights deprivations are no longer a matter

of domestic jurisdiction exclusively.

A series of treaties have progressively withdrawn human rights from the internal domain of States.

Criteria for establishing State jurisdiction in that field depends on International Law determinations. In

addition, the revolution in communications quickly spreads information about tortures, massacres and

genocide against ethnic minorities and political opponents. The international public space of human rights

was formed across national borders, and unites human beings around a set of values. It cannot be denied

that, in most cases, particular interests have influenced the policies of great powers towards the protection

of human rights. Despite the remaining selectivity, there is some consensus around essential values previous

to structuring social life in every culture. Initiatives of intercultural dialogue focus on that point. A great

number of organizations have been instituted to protect human rights on an international scale. NGOs are



Panel 6: Fundamental Rights and Punishment

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a vivid expression of a new transnational process which exemplify the so-called communities of

responsibility that cross national borders.

The end of the cold war afforded the establishment of the right to humanitarian assistance. On

December 8, 1988, The UN General Assembly approved Resolution 43-131 regulating delivery of

humanitarian assistance to victims of natural disasters and similar situations. Two years later, on December

14, 1990, the UN General Assembly passed Resolution 45-100 to make the access to victims of

humanitarian crises easier. Such measures, unthinkable some decades before, gave a new dimension to the

nonintervention principle. Great humanitarian tragedies happened in the early 90s. The civil war in Liberia,

Bosnia, Somalia and Rwanda, the persecution to Kurdish rebels and democratic leaders in Haiti motivated

the UN Security Council to adopt Resolution 45-100 to provide humanitarian assistance to victims of

armed conflicts. I argue that the right to humanitarian assistance has a customary nature meaning that neither

the State where a conflict occurs nor neighboring States can prevent access to victims.

In the early 90s, The UN Security Council interpreted massive violations of human rights resulting

from internal conflicts as a threat to international peace and security. In that case, the Security Council

is entitled to resort to force to ensure protection to victims. In doing so, it has recognized a strong bind

between domestic life and international affairs. Most conflicts with destabilizing effects to international order

are rooted domestically and spread to neighboring countries. The ever-increasing flows of refugees may

endanger regional stability. Since its beginnings, International Law has provided rules of coexistence among

States. The activity of the Security Council in recent humanitarian tragedies has pointed out the need to



Alberto do Amaral, Jr., The Right to Humanitarian Assistance

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establish rules of coexistence among ethnic groups and warring factions within a State. Those conflicts may

become pervasive and jeopardize international peace and stability.

I NTERNATIONALIZATION OF HUMAN R IGHTS

The post-World-War-II period was characterized by a process of multiplication and worldwide

dissemination of human rights. According to Bobbio, this expansion occurred in three different ways. Social

and political rights arose as a consequence of the development of the Welfare State. While the rights of

freedom required that the State only ensure basic social life conditions, social and economic rights

demanded State intervention in order to distribute the wealth generated by economic development.

Secondly, not only a single individual but also other such groups as families, ethnic and religious minorities,

and even Humanity as a whole were entitled to rights, a noticeable fact as to the rights of future generations.

With regard to the third process, man was seen in his specificity, and classified on the basis of multiple

criteria of differentiation, such as sex, age and physical conditions. Each of those aspects shows particular

differences which cannot be dealt with on an equal basis ( 1 ).

The Universal Declaration of Human Rights, adopted on December 10, 1948, began a period of

worldwide dissemination of human rights. For the first time in history, most States accepted a fundamental

principle system. Not only citizens of a single State but also all men indiscriminately are entitled to such

rights. Moreover, the establishment of human rights on an international plane indicated that they ought to

be protected against every sort of violation, rather than being merely proclaimed.

Alexy asserts that human rights have five major characteristics:




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1. Universality. Human rights are universal as regards their subjects. Human beings

are the only subjects who are competent to enjoy them. As opposed to Alexy, I believe

that there are not many plausible reasons for not conferring on groups and communities the

condition of subjects deserving human rights.

2. Human rights are moral rights. Alexy contends that the moral validity of human

rights is independent of their acknowledgement by a legal norm. Validity of a moral norm

providing them is the only requisite demanded. The moral validity of a norm occurs

when rational justifications for everyone who accepts them may be offered. Human rights

are moral rights when they may be rationally justified to every single person.

3. Human rights are preferential rights. Moral rights imply a right to be protected by

a legal system. There is, in effect, a moral right claiming the protection of human rights.

The safeguard of human rights gives legitimacy to a particular legal order. That fact shows

the priority that human rights have as compared to other rights.

4. Human rights are fundamental rights. Human rights encompass both interests and

needs essential to human beings. Such interests and needs must be truly important to

deserve a legal guarantee. Alexy asserts that interests and needs are fundamental because

if they are not fulfilled, death or serious human suffering jeopardizing individual autonomy

ensues. Both classical liberal rights and social rights belong to that category.

5. Human rights are abstract rights. The abstract nature of human rights demand some




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sort of limitation to be applied in concrete cases. That situation explains the need to weigh

the rights in conflict and demands instituting juridical instances that can make binding legal

decisions. States, in this context, are required not only to make concrete human rights, but

also to fully put them into effect ( 2 ).

International protection of human rights has experienced considerable progress in the last decades.

Firstly, awareness that protection of human rights does not belong to the internal domain of States has

expanded everywhere ( 3 ). In the past, it was believed that States were the only entities in charge of

safeguarding human rights within a domestic jurisdiction ( 4 ). Vagueness and imprecision of the so-called

internal domain of States contributed to greatly increase government freedom in this field. States defined

the reach of their internal domain depending on their intrinsic interests. Due to possible abuse, international

organizations have claimed the right to set the limits of a State’s internal domain. Human rights over time

have become the object of international interests transcending national jurisdiction.

New legal instruments that prevent conflicts between national and international jurisdiction have

been responsible for such evolution. Thus, international protection of human rights has assumed a subsidiary

function because it takes place only when States fail in their task to guarantee human rights. Use of all

administrative and judiciary means available is a precondition for an international organization to analyze

a case of human rights violation. Treaties on human rights have very often foreseen rules with the objective

of harmonizing same with a domestic legislation that facilitates government ratification and adherence ( 5

). Clauses restricting or limiting some rights in emergency situations are admitted provided they are




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compatible with the purposes of a treaty. Conventions usually include facultative clauses acknowledging

the competence of supervisory international bodies to examine individual or State petitions, especially

clauses recognizing compulsory legal court jurisdiction which apply international human rights treaties (

6 ).

Methods introducing human rights have undergone great development in recent years. Individuals

have acquired the capacity to claim rights on an international plane. Any person may address a complaint

to a competent international body against his own State. Interstate petitions are, in turn, means to afford

the implementation of collective guarantees that benefit certain groups. The attribution to act on the part of

supervisory international bodies has enhanced such a system. Reports prepared by those bodies have

helped to put to an end to a number of human rights violations. It is also important to point out that

international courts have resorted to methods to interpret treaties different from those normally employed

to interpret bilateral treaties. Public interest considerations are a guideline for judges to interpret the meaning

of clauses concerning human rights treaties.

The United Nations promoted the Second International Conference on Human Rights in June,1993.

On that occasion, two diverging opinions dominated debates among various delegations. Whilst the US and

other western nations stated the universal scope of human rights, which should be above national

sovereignty, most developing countries, led by China, asserted the relativism of human rights. In this sense,

nations with different levels both of economic development and cultural traditions would have distinct




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conceptions of human rights ( 7 ). The final document of the Conference attempted to take both positions

into account highlighting the universal, indivisible and interdependent nature of human rights. The main points

emphasized in the document were the following:

a) universality of political and civil rights;

b) universality of human rights;

c) the role of nongovernmental organizations in supervising human

rights implementation;

d) mutual responsibility in promoting human rights

e) development is a requirement to preserve democracy.

The process of multiplication and worldwide dissemination of human rights has frequently been

challenged by State power politics which indicates the contrast between the abstract world of rules and the

concrete world of facts. In the post-War II period, the bipolar order that organized international relations

for almost fifty years converted human rights into a conflict between western and eastern blocks. While the

US accused the Soviet Union of disrespecting political and civil freedom, the Soviet leaders pointed out

the relevance of economic and social rights to build a just and humane society. The ideological dispute

prevented the punishment of governments for violations of human rights on the part of the international

community. Economic sanctions imposed on Rhodesia and South Africa were exceptional cases which

occurred only by virtue of a peripheral position of those countries in the international scenario.

Human rights used to be subordinated, in most cases, to the economic and strategic interests of




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great powers. Disparity of treatment in relation to violations of human rights around the world demonstrated

the existence of selective policies that either mobilize efforts to put an end to murders and massacres of

ethnic minorities or exhibit the most profound indifference towards such events. Passiveness of western

countries with regard to selectivity in those matters is explained by an attempt to combine a State

commitment to norms protecting human rights with governmental policies that only give priority to particular

interests. Governments sometimes seek to subordinate concerns with human rights to the cynicism of realist

diplomacy. Diplomatic realism is aimed at increasing State power rather than accomplishing general

interests. Another factor also explains government inaction towards violations of human rights. Some States

are reluctant to take appropriate measures because they fear that such a precedent could be used against

themselves in the future.

Nevertheless, the last decades have witnessed the formation of international space in which human

rights are the object of general interests. Both the cold war and the progress in information technologies

have given birth to the international public space of human rights scrutinizing what occurs within national

borders. Information on violence against civil leaderships, the killing of government opponents, and the

attempt to eliminate ethnic groups circulate instantaneously all over the world. State intimacy is completely

trespassed blurring the distinction between domestic life and international reality ( 8 ). Internationalization

of domestic life is unprecedented in previous historical periods. States are not the only agents of the new

international space of human rights. Nongovernmental organizations, for example, are important actors of

international relations.




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The pressure of nongovernmental organizations has compelled governments to carry out human

right defense policies. Awareness that to safeguard human rights involves sharing responsibilities among

public and private institutions has grown everywhere. Sovereignty is no more a cloak protecting

governments from egregious violations of human rights. The use of nonintervention principles is challenged

to the extent that the right to look on the planet founds the notion of responsibility without borders. In

international life as well in as in domestic life there is an indissoluble bound between human rights,

democracy and peace. With no guarantee of human rights, democracy does not exist, and without

democracy, conditions for settling disputes peacefully are absent. International protection of human rights

may be a valuable instrument to build democracy in a cosmopolitan dimension ( 9 ).

THESECURITY COUNCIL AND PROTECTION OF HUMAN R IGHTS

The last decades have shown substantial growth of the UN Security Council. The reason lies not

in the formal modification of the UN Charter, but rather in the lack of clarity as to what international peace

and security refers to. The UN Security Council has discretionary power to appreciate the circumstances

affecting international peace and security, and can establish adequate measures to be applied in specific

situations ( 10 ). As a consequence, over time the Security Council has also assumed the task of defending

human rights in some cases.

The travaux préparatoires of Article 3, VII of the UN Charter indicates that the function of the

Security Council is to solve conflicts that can threaten international peace and security. The Philippines

initially wanted to restrict the reach of Article 39 to “war against another nation,” and the Greek proposal




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made reference to “disputes between two or more countries” ( 11 ). Broader suggestions, however, have

been presented in discussions. Norway, appalled by the violence of the civil war in Spain, wished to grant

the Security Council competence to intervene in domestic conflicts ( 12 ). The approval of the Australian

proposal, recognizing as legitimate the clause of internal domain of States, did not invalidate premises

underlying the Norwegian initiative. In some instances, domestic conflicts are in accordance with Article

39, leading the UN to act in such cases.

The French proposal stressed that violation of fundamental human rights and freedom may

constitute a threat to international peace and security. The Australian representative, expressing the

opinion of most States, declared that: “if the members of the Organization really desire to give the

Organization the power to protect minorities, their proper course is ... to declare that they recognize the

protection of minorities as a matter of legitimate international and not merely of domestic concern or to

make a formal international convention providing for the proper treatment of minorities ...If such a

declaration were made, or such a convention were drawn up, it would be plain that nothing in the paragraph

proposed by the sponsoring governments would limit the right of the Organization to intervene” ( 13 ). This

fact demonstrates that since the UN were originated, peace is conceived in a wider sense encompassing

not only interstate conflicts.

The relationship between violation of human rights and threat to international peace and security

was put into effect to fight against the apartheid policy of the South African government. The General

Assembly regarded that the apartheid policy jeopardized international peace and security. In 1977, the




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Security Council passed Resolution 418 imposing an economic embargo on South Africa ( 14

). That measure was not enough to eliminate the racial discrimination policy of the South African

government. Nonetheless, Resolution 418 clearly showed that domestic issues may threaten international

peace and security. From this point of view it is related to Resolution 232 of December 16, 1966, that

raised an embargo on the sale of weapons to South Rhodesia.

The end of the cold war coincided with a broader role of the Security Council to protect human

rights. From 1988 to 1992, The United Nations organized more peace operations than in the last forty

years. In Namibia, Cambodia and Somalia, the United Nations envisioned to keep and restore peace, and

even to rebuild legal and economic institutions ( 15 ). In the United Nations Charter, peace has both a

structural dimension demanding cooperation among the Security Council, the General Assembly, the Social

and Economic Council and the Secretary General and a conjunctural dimension in which the Security

Council plays a role to maintain international order. The first dimension occurs in the long run through

cooperation among States and international organizations; the second, in turn, presupposes the capacity

of the Security Council to quickly eliminate possible threats to international order ( 16 ).

The recent practice of the Security Council has combined both dimensions of peace. In contrast

with its role in past decades, the Security Council has simultaneously sought to ensure peace and provide

social, economic and political conditions to reestablish domestic order. The legal scope of action of the

Security Council lies in a wide conception of legitimacy of its initiative to execute essential obligations that

States have imposed on them. The novelty in this case is that the Security Council has introduced a wide




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conception of peace in Chapter VII of the United Nations Charter. A connection was established between

peacekeeping in a coercive sense and peace-building by promoting human rights and humanitarian

international law ( 16 ).

Besides organizing missions of humanitarian assistance, the Security Council has reacted to massive

violation of human rights calling upon State members to fulfill their international obligations. Initially, the

Security Council urged the States to fulfill obligations deriving from humanitarian international law, and a

number of conventions on human rights. The explicit condemnation of abuse with reference to international

treaties on that matter was the following step. Information gathered by humanitarian international

organizations is now to be sent to the UN Secretary General. Finally, a special committee is in charge of

investigating such facts ( 17 ).

Another innovation in recent years has been the institution of legal instruments to punish abuse of

an individual person in humanitarian crises. Paragraph 10 of Resolution 764 of July 13, 1992, approved

during the Bosnian crisis, referred both to individual responsibility and to massive violations of humanitarian

international law. Resolutions 808 and 827 of 1993 created a special court to judge violations of

humanitarian international law in former Yugoslavia. Resolution 955 of November 8, 1994 instituted a

Special Court for Rwanda with the function of judging war crimes and violations of humanitarian

international law. Both the Tribunal for ex Yugoslavia and the Tribunal for Rwanda are subsidiary bodies

of the Security Council with a judicial nature.

The Security Council centralized competence to punish a number of crimes of a universal nature




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that formerly belonged to national States. The United Nations Charter did not confer direct competence

on the Security Council to protect human rights. That fact explains why measures adopted should be based

on Chapter VII on international peace and security matters. As a representative of the international

community, the Security Council ought to act in the event of risk for international peace and security due

to human rights deprivation. The intervention of the Security Council may be useful to cater to basic needs

of the civil population, to restore domestic order, and to restructure State institutions. This would be an

extreme remedy for egregious violations against human rights. However, the intervention of the Security

Council depends on a few conditions. First of all, violations of human rights must be interpreted as a threat

to international peace and security. Secondly, the international community intervenes only when a State fails

to face the effects of a humanitarian crisis.

THER IGHT TO HUMANITARIAN ASSISTANCE

The right to humanitarian assistance, as a product of custom, derived from various Security Council

resolutions in the early 90s. During the 80s, however, political and religious leaders claimed for its

institution. In 1987, French President François Mitterrand stated that the right to assist destitute people in

humanitarian crises is a moral duty above any other State right ( 18 ). In 1981, the Jordanian ambassador

at the United Nations sent a proposal to the UN Secretary General establishing a new humanitarian

international order on the basis of principles formulated by Prince Hassin Bin Talal. The Jordanian proposal

criticized humanitarian international law on the grounds that it is applied only to armed conflicts and not to




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natural and industrial humanitarian catastrophes.

A new humanitarian international order needs to be expressed in a code of conduct that

international institutions would apply. Resolution 37/201 of UN General Assembly instituted an

Independent Commission on Humanitarian International Issues in 1983. Such Commission concluded that

humanitarian international law had some gaps because it required government assent to be applied to

internal conflicts. Furthermore, the final report recommended delivery of humanitarian relief independently

of social conditions and of the political position of victims. The Institute of International Law noted that

delivery of humanitarian assistance by a State, group of States or international organizations to an

endangered population is not an illegal intervention.

On January 8,1988, the UN General Assembly adopted Resolution 43/131 on delivery of

humanitarian relief to social groups affected by natural and industrial disasters. That Resolution is founded

on the assumption that natural catastrophes and situations of the same sort have profound social and

economic consequences for all the countries involved. In fact, the lack of assistance to the victims is an

attempt against human life and dignity ( 19 ). The assistance to people in need is a logical consequence of

the right to health foreseen in the Universal Declaration of Human Rights of 1948, in the Civil and Political

Covenant and in the Economic, Social and Cultural Covenant of 1966.

The principle of free access to the victims regulated in Paragraph 9 of the Preamble of Resolution

43/131 is actually new. It means that neither State whose population will be benefited by external aid, nor

neighboring States can prevent the access to the victims. Everybody is called on to take part in international




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cooperation to assist to victims. The intention was to avoid that governments blockade the implementation

of necessary measures to that end. The precedent of Resolution 43/131 was reiterated in a great number

of Security Council Resolutions in the early 90s ( 20 ).

In order to alleviate pressure on the Kurdish population, the Security Council determined that Iraq

should allow immediate access by humanitarian organizations to all those in need of assistance in all parts

of Iraq, and made all necessary facilities for their operations available. In Somalia, the United Nations

undertook great efforts to deliver humanitarian aid. In Bosnia, the UN forces permitted the distribution of

food and medicine to people in Sarajevo and other regions. Similar attitudes took place in Liberia in 1993,

where warring factions were refrained from hampering humanitarian assistance.

Thus, the principle of free access to victims became part of international law as a customary

practice. Customs play a much more significant role in international affairs than in domestic life. Certainly

the absence of a world government with a centralized power is the origin of this fact. The sovereignty

principle led to primacy of custom over any other legal source within States. Conversely, in the international

sphere, custom is not only a legal source but also, for a long while, customary norms were the main way

of regulating government behavior. In the aftermath of colonialism, many newly independent countries

denied validity to international customs. They argued both the lack of consent by most developing countries

and that custom reflected interests of developed countries. At present, on the contrary, the role of custom

has increasingly gained importance.




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With changes in international law techniques, international organizations became means of creating

regional and universal customary rules. In some circumstances, reduction in weight of developed countries

favor an increase in the legitimacy of customary rules. In addition, the quicker the historical process the

shorter the period for custom development. Not many centuries or decades are necessary to originate

a custom. In a few decades or years, a custom acquires a binding force. Such is the case of the notion of

continental platform that President Truman presented for the first time in 1945. It soon became a

generalized practice before its formal regulation in The Law of the Sea Convention of 1958. An analogue

situation occurred with the concept of an exclusive economic zone in the early 70s. Immediate acceptance

by various governments provided the status of a customary rule. Later, the Third Convention on The Law

of the Sea rendered it a written norm ( 21 ). Custom, therefore, has a binding force, and may be used to

settle international disputes. It is important to point out which requirements are necessary for the existence

of a custom.

A custom only exists when two elements are present:

- a material element expressed in an uniform and constant repetition of certain acts

throughout time;

- a psychological element, that is, the conviction that such acts correspond to a juridical

norm. A practice of isolated acts is not enough to institute a legal norm. Some frequency

is demanded for its creation. On an international plane, mere use does not lead to any legal

consequence. It is fundamental that States recognize such a practice as obligatory for




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themselves. Besides repetition of identical conducts, the formation of a custom

presupposes a belief that a given norm binds States.

Although article 38 of the Statute of the International Court of Justice referred only to general

customs, it is possible that a customary rule limit itself to a particular region of the globe or even oblige

only two States. The International Court of Justice recognized the existence of a regional custom in the

Haya de la Torre’s case of November 20, 1950 that opposed Colombia to Peru. Discussions concentrated

on the diplomatic asylum that Colombia granted to Haya de la Torre, an important Peruvian politician.

Colombia, under Peruvian protest, argued that a Latin American custom existed according to which each

country may analyze how serious the fault is prior to diplomatic asylum. Despite refusing the Colombian

thesis, the ICJ accepted a regional custom binding some Latin American States ( 22 ). Similarly, the

ICJ admitted that a local custom could be formed with the participation of only two States as in a case

opposing Portugal to India about the right of passage in the Indian territory, judged on April 12, 1960. A

general custom, however, demands recognition on the part of most States.

The right to humanitarian assistance fulfills both conditions for a custom to be formed. The approval

by the General Assembly of Resolution 43-131 is a sharp manifestation of the significance that an

international community lends to humanitarian assistance. The Security Council Resolutions admitting same

have demonstrated the emergence of a constant and general behavior in spite of those who see such

Resolutions as specific answers to particular issues. Likewise the binding conviction renders reiterated

manifestations of the Security Council on legal rules regulating humanitarian assistance.




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Mario Bettati, in a classical book entitled Droit D’ingerence, analyzes criticism against the right

to humanitarian assistance or the right to humanitarian intervention. First of all, he states that the right to

humanitarian assistance is a concept that developed States forged to legitimize their intervention towards

poor countries. That accusation neglects the fact that a number of developing countries supported the

United Nations Resolutions on the right to humanitarian intervention. The interventions in Bosnia and

Somalia, for instance, were requested by many Muslim Nations and African States. It is not reasonable to

think that they are simply agents of the great powers with permanent seats in the Security Council. The

second argument asserts that intervention occurs only in situations in which the US, France and Great

Britain have interest. According to Bettati, the important work of organizations like Médicins sans

Frontières in the Bronx region in New York proves that thesis to be mistaken. Both American and

French doctors worked together in the early 90s to provide assistance to people dependent on garbage

to survive. Finally, the right to humanitarian intervention is seen as a means towards neo-colonialism. That

assertion is equally incorrect. Whereas neo-colonialism is characterized by the ownership of another

country’s reaches, humanitarian intervention envisions protecting both life and health of a population

( 23 ). Unlike neo-colonialism which wishes to perpetuate itself, humanitarian intervention is provisional,

and restricts itself to cases of manifest urgency. Humanitarian intervention does not take jobs from national

authorities. It is based on the subsidiary principle by which States are, more than any other entity,

responsible for providing humanitarian assistance, according to Paragraph 2 of Resolution 43/131. When

national States fail to fulfill their mission, such a duty is automatically transferred to an international




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community.

NOTES

1 - BOBBIO, Norberto. A era dos direitos. Op. cit. p.68cf. RANGEL, Vicente Marotta. Do homem à humanidade: o elemento fático no direito internacional. In:LAFER, Celso; FERRAZ JÚNIOR, Tércio Sampaio. (Coord.)Direito política filosofia poesia: estudosem homenagem ao prof. Miguel Reale em seu octogésimo aniversário. São Paulo: Saraiva, 1992. p. 403-11.

cf. RANGEL, Vicente Marotta. A Declaração Universal dos Direitos do Homem e o seu vigésimo

aniversário. Problemas Brasileiros, São Paulo, v.6, n.70, p.3-14, 1969

cf. POPPOVIC, Malak el C.; PINHEIRO, Paulo Sérgio. Pauvreté, droits de l'homme et processusdémocratique. Droit et Société, Paris, n.4, p.635-48. 1996.

cf. PINHEIRO, Paulo Sérgio. O Brasil e a ordem jurídica internacional.Revista da Procuradoria Geral

do Estado de São Paulo, São Paulo, n.24, p.353-9, dez. 1985

cf. PINHEIRO, Paulo Sérgio. Dialética dos direitos humanos. In: SOUSA JÚNIOR, José Geraldo (Org.)Direito Achado na Rua. Brasília : Ed UnB, 1987. p. 83-5.

cf. PINHEIRO, Paulo Sérgio. Proteção da pessoa humana na ordem jurídica nacional e internacional. In:CONGRESSO BRASILEIRO DE FILOSOFIA DO DIREITO, 4., João Pessoa, 1990.Conferências.João Pessoa : Espaço Cultural, 1990. p.244-51.

cf. PINHEIRO, Paulo Sérgio. Viena valeu. Folha de São Paulo. São Paulo, 25 jul. 1993. Caderno 1, p. 3.

cf. MELLO, Celso de Albuquerque - A sociedade internacional: nacionalismo versus internalismo e aquestão dos direitos humanos. Arquivos do Ministério da Justiça, Brasília, v.46, n.182, p.115-27,

jul/dez. 1993.

cf. MELLO, Celso de Albuquerque - Análise do núcleo intangível das garantias dos direitos humanos emsituações extremas: uma interpretação do ponto de vista...Direito, Estado e Sociedade , Rio de Janeiro,n.5, p.13-23, ago./dez. 1994.




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2 - ALEXY, Robert. Direitos fundamentais no estado constitucional democrático. Revista de Direito

Administrativo, v.217, p.58 e ss, jul./set. 1999.

cf. ALEXY, Robert. Colisão de direitos fundamentais e realização de direitos fundamentais no estado dedireito democrático. Revista de Direito Administrativo, v.217, p.67-79, jul./set. 1999.

3 - TRINDADE, Antônio Augusto Cançado. A proteção internacional dos direitos humanos. SãoPaulo : Saraiva, 1991. p.12

4 - TRINDADE, Antônio Augusto Cançado.A proteção internacional dos direitos humanos. Op. cit. p.13

5 - TRINDADE, Antônio Augusto Cançado.A proteção internacional dos direitos humanos . Op. cit. p.8 e ss

6 - FARIA, José Eduardo. Os direitos humanos e o dilema latino-americano às vésperas do século XXI.Novos Estudos CEBRAP, n.38, p.53-60, mar.1994.

cf. PINHEIRO, Paulo Sérgio; GUIMARÃES, Samuel Pinheiro, (Org.). Direitos humanos no século

XXI. Brasília : Instituto de Pesquisa de Relações Internacionais, 1998. 2 v.

cf. TRINDADE, Antônio Augusto Cançado.Tratado de direito internacional dos direitos humanos .

Porto Alegre : Fabris, 1997. v.1, p.177-206

7 - LAFER, Celso.Comércio, desarmamento, direitos humanos. São Paulo : Paz e Terra, 1999. p.154e ss

cf. LAFER, Celso. A reconstrução dos direitos humanos. São Paulo : Companhia das Letras, 1988. p.117-236.

cf. COMPARATO, Fábio Konder. A afirmação histórica dos direitos humanos. São Paulo : Saraiva,1999. p.403-14.

8 - LAFER, Celso. Direitos humanos e democracia no plano interno e internacional.Revista de Política

Externa, v.3, n.2, p.71 e ss, set./nocf. 1994.

cf. TRINDADE, Antônio Augusto Cançado. Tratado de direito internacional dos direitos humanos.Porto Alegre : Fabris, 1999. v.2, p.201-51




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9 - ATIENZA, Manuel. Introducción al derecho. Barcelona : Barcanova, 1985. p.36

cf. BOBBIO, Norberto. Giusnaturalismo e positivismo giuridico. 4.ed. Milão : Comunità, 1984. p.161-212

10 - RIPOL CARULLA, Santiago. El Consejo de Seguridad y la Defensa de los derechos humanos.Reflexiones a partir del conflicto de Kosovo. Revista Española de Derecho Internacional, Madrid,v.51, n.1, p.74-5, ene./jun.1999

11 - TOMUSCHAT, Christhian. Obligations arising for states without or against their will. Recueil des

Cours, Haye, v.241, p.334-5, 1993.

12 - TOMUSCHAT, Christhian. Obligations arising for states without or against their will. Op.

cit. p.335-6

13 - UNCIO 6, 439

14 - CASSESE, Antonio. Los derechos humanos en el mundo contemporáneo. Barcelona : Ariel,1991. p.178

15 - RIPOL CARULLA, Santiago. El Consejo de Seguridad y la Defensa de los derechos humanos.

Reflexiones a partir del conflicto de Kosovo. Op. cit. p.75-6.

16 - DUPUY, Pierre-Marie. Securité collective et organisation de la paix.. Revue Générale de Droit

International Public, Paris, v.97, n.3, p.620, 1993.

17 - RIPOL CARULLA, Santiago. El Consejo de Seguridad y la Defensa de los derechos humanos.Reflexiones a partir del conflicto de Kosovo. Op. cit. p.77

18 - BETTATI, Mario. Le droit d’ingérence. Paris: Ed. Odile Jacob, 1996. p. 94

19 - BETTATI, Mario. Le droit d’ingérence. p.112


21 - CARREAU, Dominique. Droit international. 3.ed. Paris: Pedone, 1991. p. 256




VI-22

22 - CARREAU, Dominique. Droit international. 3.ed. Paris: Pedone, 1991. p. 256


The Right to Humanitarian Assistance

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