To see the other types of publications on this topic, follow the link: Self-Defence of State.
Books on the topic 'Self-Defence of State'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 books for your research on the topic 'Self-Defence of State.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse books on a wide variety of disciplines and organise your bibliography correctly.
1
International law, hostile non-state entities the scope of the principle of self defence [sic] defense and Pakistan. Islamabad]: Pakistan Law House, 2011.
Find full text
2
Wicker, Christian. The concepts of proportionality and state crimes in international law: An analysis of the scope of proportionality in the right of self-defence and in the regime of international countermeasures and an evaluation of the concept of state crimes. Frankfurt am Main: Lang, 2006.
Find full text
3
Gabor, Thomas. Firearms and self-defence: A comparison of Canada and the United States. [Ottawa, Ont.]: Dept. of Justice, Canadian Firearms Centre, Policy Sector, 1997.
Find full text
4
Gaebelein, Thad A. A question of character: Life lessons to learn from military history. New York: Red Brick Press, 1998.
Find full text
5
Armstrong, Keith. Courage after fire: Coping strategies for troops returning from Iraq and Afghanistan and their families. Berkeley, CA: Ulysses, 2006.
Find full text
6
Tams, Christian J., Mary Ellen O'Connell, and Dire Tladi. Self-Defence Against Non-State Actors. Cambridge University Press, 2019.
Find full text
7
Tams, Christian J., Mary Ellen O'Connell, and Dire Tladi. Self-Defence Against Non-State Actors: Volume 1. Cambridge University Press, 2019.
Find full text
8
Christine, Gray. 4 Self-defence: the framework. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198808411.003.0004.
Full textAbstract:
This chapter discusses the general framework of the law of self-defence. The scope of the right of self-defence is the subject of the most fundamental disagreement between states and between writers. Some of the divisions over the scope of the right of self-defence, especially as to whether anticipatory self-defence against an imminent armed attack and the protection of nationals abroad are lawful, date back to the creation of the United Nations. Other divisions centre on the right to use force in self-defence in response to colonial occupation, to terrorist attacks, and to other attacks by non-state actors. This chapter also discusses the special regime of collective self-defence.
9
Kammerhofer, Joerg. The Resilience of the Restrictive Rules on Self-Defence. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0028.
Full textAbstract:
This chapter examines the resilience of the treaty, and perhaps also customary, law on self-defence since 2001. It first considers ‘resilience’ in the context of the jus ad bellum and how law can be resilient vis-à-vis changing circumstance, opinions, interpretation, and state practice. It then looks at the indicators for and against resilience by analysing post-2001 developments, paying particular attention to three areas: jurisprudence, scholarly literature in international law, and state and institutional practice. The chapter also explains what ‘resilience’ can and cannot be, and how the law and its perceptions change—or remain the same. Two avenues on the question of what is resilient are evaluated: either the norm or its interpretation (perception) change. Finally, the chapter considers a number of cases in which the International Court of Justice has made pronouncements on and partial clarifications of important aspects of the law on self-defence since 2001.
10
GRANZOTTO, E. The Right of Self-Defence Against Non-State Actors: The Legality of the Unable or Unwilling Doctrine and How to Improve Its Application in International. Dialética, 2021. http://dx.doi.org/10.48021/978-65-252-0090-3.
Full text
11
Olivier, Corten. Part 3 The Post 9/11-Era (2001–), 64 The Military Operations Against the ‘Islamic State’ (ISIL or Da’esh)—2014. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0064.
Full textAbstract:
This chapter discusses the military operations against the Islamic State (ISIL or Da’esh) in Iraq as in Syria. After recalling the relevant facts and the context, it exposes the legal positions of the intervening states as well as those of the other states. In a third section some doubts are expressed concerning the legality of the operations based on the argument of self-defence, particularly when it implies the bombing of the Syrian territory without the consent of its government. In the same vein, a final section shows that the majority of states has not accepted the ‘unwilling or unable’, ‘limited sovereignty’, or ‘self-help’ necessity arguments, or, for that matter, the permissibility of preventive or pre-emptive self-defence. Accepting such arguments would undoubtedly imply at the very least a new interpretation of the UN Charter.
12
Deeks, Ashley. Taming the Doctrine of Pre-Emption. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0030.
Full textAbstract:
This chapter examines one of the most contentious issues in the jus ad bellum: whether and when international law permits a state to use force unilaterally before it suffers an armed attack. More specifically, it considers whether pre-emption needs to be tamed. The discussion begins by sorting through the terminology used by states and scholars with respect to acts of self-defence in advance of an attack, with particular reference to three different terms: anticipatory self-defence, pre-emptive self-defence, and preventive self-defence. The chapter then outlines the basic positions in the historical debate about the legality of such self-defence before turning to three geopolitical and technological factors that put pressure on the doctrine of pre-attack self-defence: weapons of mass destruction, terrorism, and cyber attacks. Finally, it evaluates the future of pre-emption, with emphasis on changes in the timing of a state’s right to use force in self-defence.
13
The Concepts of Proportionality and State Crimes in International Law: An Analysis of the Scope of Proportionality in the Right of Self-defence and in ... Internationalen Und Zum Offentlichen Recht). Peter Lang Publishing, 2006.
Find full text
14
The Concepts of Proportionality and State Crimes in International Law: An Analysis of the Scope of Proportionality in the Right of Self-Defence and in ... Internationalen Und Zum Offentlichen Recht). Peter Lang Publishing, 2006.
Find full text
15
Trapp, Kimberley. Can Non-State Actors Mount an Armed Attack? Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0031.
Full textAbstract:
Article 2(4) of the UN Charter prohibits the use of force between States. In so doing, it addresses itself to a strictly interstate context and does not speak to the phenomenon of uses of force by non-state actors (NSAs). The question examined in this chapter is whether the exception to that prohibition—the right to use force in self-defence—is nevertheless responsive to the war-making capacity of NSAs. Otherwise put, is the definition of ‘armed attack’ in Article 51 of the UN Charter (and related customary international law) conditioned on the attacker being a state? In exploring this question, the chapter considers whether attribution is a necessary condition (in ratione personae terms) for the applicability of Article 51 by assessing the language of the Charter (including its travaux préparatoires), jurisprudence of the International Court of Justice, and state practice.
16
Moir, Lindsay. Action Against Host States of Terrorist Groups. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0033.
Full textAbstract:
This chapter examines the problems that could arise when a state invokes self-defence to justify action against terrorist groups in another state. It first considers indirect armed attack against armed groups and the controversy surrounding the use of self-defence where armed groups are controlled by a foreign state, with particular reference to the International Court of Justice (ICJ) jurisprudence. It then discusses the possibility that an armed attack could occur, permitting a forcible response in the context of international law, without attribution to a state by citing the Nicaragua case in which the ICJ pronounced that self-defence is permissible against a host state in effective control of an armed group. The chapter also looks at the case of Afghanistan and its relationship to Al Qaeda as an example of a state’s claims of self-defence against terrorism.
17
Michael, Byers. Part 3 The Post 9/11-Era (2001–), 48 The Intervention in Afghanistan—2001–. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0048.
Full textAbstract:
This chapter addresses the US and NATO-led intervention in Afghanistan from 2001 to the present day. It examines the different legal justifications advanced or available for the intervention, namely self-defence, UN Security Council authorization, and intervention by invitation. It explores the complex relationships between these justifications and, particularly, the strategies adopted by states in choosing between them. The chapter concludes by considering the effects of the intervention on the customary international law of self-defence as it concerns non-state actors located in “unaware or unable” states, and anticipatory or pre-emptive responses.
18
Christine, Gray. 5 The use of force against terrorism: a new war for a new century? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198808411.003.0005.
Full textAbstract:
This chapter examines the impact of the ‘war against terror’ on international law. The US invasion of Afghanistan in response to the massive terrorist attacks on the World Trade Center and the Pentagon on 11 September 2001 led to a fundamental reappraisal of the law of self-defence. The US response to 9/11 was to announce ‘a different kind of war against a different kind of enemy’—a global war on terrorism. Many writers now argue that 9/11 and subsequent state practice have changed the law on self-defence, but the legal situation is not so clear-cut. More recently, the rise of ISIS in Iraq and Syria, and the military response by the USA and other states since 2014, have given rise to renewed debate about the scope of self-defence. And President Trump’s foreign policy with regard to North Korea and Iran has once again raised questions about the controversial doctrine of pre-emptive self-defence.
19
Paust, Jordan. Remotely Piloted Warfare as a Challenge to the Jus Ad Bellum. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0052.
Full textAbstract:
This chapter examines the use of remotely piloted and other robotics during war and outside the context of war during permissible measures of self-defence and their implications for the jus ad bellum, interpretation of Articles 2(4) and 51 of the UN Charter, and applications of underlying general principles. It discusses the phenomenon of ‘remotely piloted warfare’ as it applies to the use of force by state and non-state actors with respect to self-defence, collective self-defence, self-determination assistance, regional action, and enforcement action authorized by the Security Council. It then considers the use of remotely piloted attacks, self-defence, and warfare in relation to compliance with the principles of reasonable necessity, distinction in targeting, and proportionality. In particular, the chapter looks at the use of weaponized drones and the possible challenges they present to compliance with basic legal principles that limit violence, and some current applications and issues regarding compliance.
20
Lesaffer, Randall. Too Much History. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0002.
Full textAbstract:
This chapter examines the evolution of the jus ad bellum from the use of war as a sanction to the sanctioning of war. It provides an overview of the doctrine of just war in the Middle Ages before turning to the concepts of just and legal war in the early modern period. It considers how, during that period and the 19th century, the argument of self-defence came to play a prominent role in the justification of war, leading to a contamination of the concepts of just and legal war. It explains why the concept of legal war was abolished by the international community of states and looks at major treaties and state practice relating to war and self-defence of the interwar years leading to the formation of an international customary rule against aggression. It analyses the transfer of the natural right of self-defence to the domain of positive international law.
21
Douglas, Guilfoyle. Part 1 The Cold War Era (1945–89), 10 The Gulf of Tonkin Incident—1964. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0010.
Full textAbstract:
This chapter examines the United States’ air strikes against torpedo boat bases in the Democratic Republic of Vietnam in August 1964 in response to two claimed armed attacks against its naval units in the Gulf of Tonkin earlier that month. It considers the facts, historical context and operational environment. It examines the reactions at the time of the main actors, and their allies, in the Security Council. In assessing the incident’s legality it notes that several of the questions raised remain controversial today, including: (i) Can a state validly exercise self-defence based on a mistake of fact? (ii) Can self-defence encompass ‘preventative’ actions? (iii) Can an attack on a single vessel trigger a right of self-defence? (iv) Was the action proportionate and necessary? (v) How proximate in time must a (legal) defensive use of force be to the triggering armed attack in order to avoid being classed as a reprisal?
22
Mónica, Pinto, and Kotlik Marcos. Part 3 The Post 9/11-Era (2001–), 53 ‘Operation Phoenix’, the Colombian Raid Against the FARC in Ecuador—2008. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0053.
Full textAbstract:
This contribution examines the 2008 operation conducted by Colombia against a camp of the Revolutionary Armed Forces of Colombia (FARC) located in the territory of Ecuador. It sets out the facts, the legal positions of both countries, the reactions of other governments in the continent, and how the situation was addressed within the Organization of American States and the Rio Group. It then analyses the operation in light of discussions about the possible exercise of the right to self-defence against non-state actors. The closing section suggests that, although the political cost for Colombia was relatively low, this case contributes to a restrictive interpretation of the right, to self-defence based on the inviolability of territorial integrity.
23
Erin, Pobjie, Declercq Fanny, and van Steenberghe Raphaël. Part 1 The Cold War Era (1945–89), 33 The Israeli Raid Against the PLO Headquarters in Tunis—1985. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0033.
Full textAbstract:
This chapter examines the Israeli raid against the Palestine Liberation Organisation (PLO) headquarters in Tunis in 1985. It first sets out the facts and context of the raid, the positions of the main protagonists (Israel and Tunisia) and the reactions of third States and international organizations. The chapter then analyses the legal issues raised by the incident under international law as it stood at the time, and its impact on the jus ad bellum. The 1985 raid was an early example of a claimed right to exercise self-defence in response to attacks committed by non-state actors without those attacks being attributable to the state on whose territory the action in self-defence takes place. However, it is argued that this incident left unsettled whether or not such a right was accepted at the time.
24
Arrighi, Jean Michel. The Prohibition of the Use of Force and Non-Intervention. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0024.
Full textAbstract:
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.
25
Palchetti, Paolo. Consequences for Third States as a Result of an Unlawful Use of Force. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0058.
Full textAbstract:
This chapter explores some of the problems concerning the role of third states in situations of unlawful use of force by a state against another state. It first draws a distinction between states directly involved in conflict either as the instigator or as the victim of an unlawful armed intervention, and ‘third states’. It then considers the rules that define the legal position of third states in situations arising from an unlawful use of force, as well as the responses that such states are entitled or obliged to take when dealing with such situations. In particular, the chapter examines the rules on state responsibility and their impact on and interaction with the other rules dealing with the position of third states. It also describes the scope of applicability of the law of neutrality, collective self-defence, enforcement of erga omnes obligations, and centralized versus decentralized responses by third states.
26
Michael, Wood. 2 The Caroline Incident—1837. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0002.
Full textAbstract:
This contribution summarizes the facts of the celebrated incident from 1837, in which British militia from Upper Canada crossed to the US shore of the Niagara River and set adrift a small rebel-operated vessel, The Caroline (which drifted over the Falls). The chapter cites the lengthy correspondence between US Secretary of State, Daniel Webster, and British Government’s representatives in Washington (Mr Fox and Lord Ashburton), in which Webster repeatedly used the celebrated Caroline formula (“a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”). The case is referred to, even today, in discussions of anticipatory self-defence, the requirements of necessity and proportionality, and the use of force against non-State actors. The chapter concludes by examining differing views on the current relevance of the Caroline incident and formula.
27
Zagzebski, Linda. Authority in Religious Communities. Edited by William J. Abraham and Frederick D. Aquino. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199662241.013.2.
Full textAbstract:
This chapter defends authority in traditional religious communities on the same general grounds used by Joseph Raz in his well-known defence of the authority of the state in the context of political liberalism. The argument proceeds by discussing practical and epistemic authority in small communities, and then extends it to the justification of authority embedded in religious traditions. The conclusion is that, ironically, a modern liberal defence can be given for authorities in communities such as the Catholic Church that are pre-modern or even anti-modern in structure. The perceived conflict between the premodern acceptance of authority and a modern perspective centred on the authority of the self over the self is an illusion.
28
Corten, Olivier. Necessity. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0040.
Full textAbstract:
This chapter examines the doctrine of necessity as an element of the prohibition of the use of force and as a subsidiary condition of the legality of self-defence. It begins by discussing the thesis of necessity as a general justification of the use of force within the context of the international law of responsibility. It then analyses necessity as a condition enshrined in self-defence and in the United Nations collective security system. The chapter also considers the methodological problems that arise from any interpretation of the concept of necessity, especially with respect to the use of force. It highlights the fact that the International Law Commission, the International Court of Justice, and state practice have never recognized necessity as a general justification to use force.
29
Gilmore, Bill. Hot Pursuit. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0042.
Full textAbstract:
This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.
30
Keichiro, Okimoto. The Relationship between Jus Ad Bellum and Jus In Bello. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0057.
Full textAbstract:
This chapter discusses the relationship between jus ad bellum (international law regulating the resort to force) and jus in bello (law of armed conflict). It examines state practice, international decisions, and expert opinions to determine how the relationship has been addressed in practice. The chapter considers the question of whether jus in bello applies equally to the unlawful and lawful parties to an armed conflict before turning to the legal implications of the cumulative requirements of the law of self-defence and international humanitarian law (IHL) imposed on a use of force in self-defence. Finally, it considers the legal implications of the concurrent application of Chapter VII of the UN Charter and IHL with respect to use authorized under Chapter VII.
31
Stuart, Casey-Maslen, Clapham Andrew, Giacca Gilles, and Parker Sarah. The Principles. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198723523.003.0004.
Full textAbstract:
This chapter discusses the eight principles of the ATT. Article 5(1) requires parties to implement the treaty while bearing in mind the principles set out. The principles cover the following issues: the right of states to self-defence; the settlement of international disputes by peaceful means; refraining from the threat or use of force against the territorial integrity or political independence of any state; non-intervention in matters essentially within the domestic jurisdiction of a state; respecting and ensuring respect for international humanitarian law and human rights; the responsibility of states to regulate international trade in conventional arms and prevent diversion and to establish national control systems; respect for the interests of states to acquire, produce, export, import, and transfer conventional arms; and implementation of the ATT in a consistent, objective, and non-discriminatory manner.
32
Christian J, Tams, and Brückner Wenke. Part 3 The Post 9/11-Era (2001–), 51 The Israeli Intervention in Lebanon—2006. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0051.
Full textAbstract:
This contribution discusses the Israeli intervention in Lebanon in July 2006. It offers an overview of the facts and context of the intervention and sets out the legal positions taken by the main protagonists (Israel and Lebanon), by third states and by international organizations. The contribution proceeds to analyse the key legal questions raised by the intervention, viz. whether or not Israel was entitled to rely on self-defence and whether its conduct respected the limits of self-defence, including the requirement of proportionality. It argues that the reaction to Israel’s intervention during 2006 reflected a growing support for an expansive notion of self-defence and confirmed the importance of proportionality as an outer limit to self-defence (which Israel, in the view of most, failed to respect).
33
Joyner, Daniel. The Implications of the Proliferation of Weapons of Mass Destruction for the Prohibition of the Use of Force. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0049.
Full textAbstract:
This chapter examines the proliferation of weapons of mass destruction (WMD) between states and non-state actors and its implications for international law governing the use of force. It considers whether WMD proliferation and changes in security realities have brought a crisis in international law on the use of force and discusses the use of pre-emptive force for preventing states and non-state actors ‘of concern’ from developing and using WMD. It analyses the shift in the policy positions of the US and other relatively powerful states, from more multilateral and diplomacy-based ‘non-proliferation’ to increased emphasis on proactive and often unilateral or small-coalition-based ‘counterproliferation’. It looks at concerns that several states will be emboldened to apply the doctrine of counterproliferation-oriented pre-emption to their regional conflicts. Finally, it evaluates proposals to reform the provisions and procedures of the UN Charter system for regulating the use of force, including the law on self-defence.
34
Lubell, Noam. The Problem of Imminence in an Uncertain World. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0032.
Full textAbstract:
This chapter deals with the concept of imminence within the context of anticipatory self-defence under international law. It examines the meaning of imminence, its interpretation, what it might justify and/or exclude, and whether it can be upheld as a criterion to face modern challenges. It outlines the requirement of imminence in relation to the debatable right to anticipatory self-defence, paying particular attention to the development of state practice and the opinions of commentators. It considers the specific context of terrorism and weapons of mass destruction, and examines the reasons that these are sometimes seen as necessitating a new conception of imminence. The chapter provides an analysis of what new approaches might mean, and whether they can be contained within an understanding of imminence. In so doing, the chapter analyses the notion of certainty, the need for evidence, and the effect of the scale of threat on the decision-making process.
35
Christine, Gray. International Law and the Use of Force. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198808411.001.0001.
Full textAbstract:
This book explores the use of force in international law. It examines not only the use of force by states but also the role of the UN in peacekeeping and enforcement action, and the increasing role of regional organizations in the maintenance of international peace and security. The UN Charter framework is under challenge: Russia’s invasion of Georgia and intervention in Ukraine, the USA’s military operations in Syria, and Saudi Arabia’s campaign to restore the government of Yemen by force all raise questions about the law on intervention. The ‘war on terror’ that began after the 9/11 terrorist attacks on the USA has not been won. It has spread far beyond Afghanistan, leading to targeted killings in Pakistan, Somalia, and Yemen, and to intervention against ISIS in Iraq and Syria. Is there an expanding right of self-defence against non-state actors? The development of nuclear weapons by North Korea has reignited discussion about the legality of pre-emptive self-defence. The NATO-led operation in Libya increased hopes for the implementation of ‘responsibility to protect’, but it also provoked criticism for exceeding the Security Council’s authorization of force because its outcome was regime change. UN peacekeeping faces new challenges, especially with regard to the protection of civilians, and UN forces have been given revolutionary mandates in several African states, but UN peacekeeping is not suited to counter-terrorism or enforcement operations. The UN now turns to regional organizations as first responders in situations of ongoing armed conflict.
36
O'Meara, Chris. Necessity and Proportionality and the Right of Self-Defence in International Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198863403.001.0001.
Full textAbstract:
States invariably justify using force extraterritorially by reference to their inherent right of self-defence. In so doing, they accept that the exercise of such right is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement renders ostensibly defensive action unlawful, increased determinacy regarding their scope and content is crucial to how international law constrains military force. This book examines the conceptual meaning, substance and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter in 1945. It provides a coherent and up-to-date description of the applicable contemporary international law and proposes an analytical framework to guide its operation and appraisal. This book contends that necessity and proportionality are conceptually distinct and must be applied in the foregoing order to avoid an insufficient ‘catch-all’ description of (il)legality. Necessity determines whether defensive force may be used to respond to an armed attack and where it must be directed. Proportionality governs how much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security.
37
Bartels, Lorand, and Federica Paddeu, eds. Exceptions in International Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198789321.001.0001.
Full textAbstract:
In international law, as in every legal system, rules are invariably subject to exceptions. This book brings together experts in legal theory and international law to investigate this phenomenon from both a theoretical and doctrinal perspective. It begins with several chapters looking at the relationship between rules and exceptions from different jurisprudential perspectives. These chapters serve to narrow down the principal types of exceptions, and what is at stake in deciding whether a given legal condition should be seen as part of a rule or as a self-standing exception. An important element is deciding how to allocate the burden of proving that the facts relevant to the condition are present. Subsequent chapters draw on these theoretical analyses, applying their insights to the way that exceptions exist in a wide range of topics and areas of international law, including self-defence, exceptions in treaty law, circumstances precluding wrongfulness in state responsibility, and the prohibition on derogations to jus cogens, as well as the specific regimes of international environmental law, international trade law, international investment law, and international criminal law.
38
Christine, Gray. Part 3 The Post 9/11-Era (2001–), 54 The Conflict in Georgia—2008. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0054.
Full textAbstract:
This chapter discusses the 2008 conflict between Russia and Georgia. It explains the background of rising tensions between separatists in the regions of South Ossetia and Abkhazia, and the Georgian government; the outbreak of conflict; the Russian intervention; and the extension of the conflict beyond South Ossetia and Abkhazia. It then examines Russia’s claims that it was acting in self-defence in protection of its nationals and of its peacekeeping forces in Georgia, and the reactions of other states to these claims. It also provides a critical account of the Report of the Independent International Fact-finding Mission on the Conflict in Georgia, and its controversial arguments, first, for a wide interpretation of the scope of the prohibition of the use of force in Article 2(4) UN Charter as applicable to non-state entities, and, second, for a wide view of the concept of threat of force.
39
Sven, Peterke, and Wolf Joachim. Part IV Transnational Organised Crime as Matter of Certain Branches of International Law, 18 International Humanitarian Law and Transnational Organised Crime. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198733737.003.0018.
Full textAbstract:
This chapter analyses the interplay of the use of force in international law and transnational organised crime (TOC). It suggests understanding organised criminal groups as addressees of certain parts of the international legal order that deal with the use of force. For instance, Article 51 United Nations (UN) Charter gives states the right to self-defence following an armed attack without specifying that the armed attack must be carried out by a state. Such an attack can equally emanate from organised criminal groups which, in turn, makes them partial subjects of international law. If gangs engage in TOC, often their action also poses a threat to international peace and security under Article 39 UN Charter. It lies thus within the mandate of the Security Council to deal with such action. The Council has started to do so in recent years and it is called upon to continue this line of work.
40
Claus, Kreß, and Nußberger Benjamin K. Part 1 The Cold War Era (1945–89), 19 The Entebbe Raid—1976. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0019.
Full textAbstract:
In 1976, Israel conducted a successful, but highly controversial military rescue operation in Entebbe, Uganda, to save its nationals taken hostage on Ugandan territory by members of the ‘Popular Front of Liberation of Palestine’. From an international legal perspective, this case revolves around the existence of a right of a state to take military action to protect its nationals abroad in mortal danger. Following an extensive legal debate in the Security Council on the incident, it appears safe to conclude that a rescue operation such as conducted in Entebbe passes the threshold for a use of force within the meaning of Article 2(4) UN Charter. In light of the ambiguous justification, however, it appears that an Entebbe-type situation falls within a grey area of the prohibition of the use of force. Still, the incident suggests that if states are willing to support the legality of a military rescue operation only the right of self-defence can conceivably justify such a use of force, and only in a case where the local state does not itself deal with the threat in good faith, and under strict conditions of proportionality.
41
Schmitt, Michael N. The Use of Cyber Force and International Law. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0053.
Full textAbstract:
This chapter focuses on the use of cyber force on and off the battlefield within the framework of international law. Drawing on the work of the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), it considers the jus ad bellum issues surrounding cyber operations. In particular, it examines when cyber operations violate the prohibition on the use (or threat) of force set forth in Article 2(4) of the UN Charter and customary international law, and when a state that has been the target of cyber operations may retaliate with its own use of force. The chapter also discusses two exceptions to the prohibition on the use of force under Article 51 of the UN Charter, one of which is the exercise of the right of self-defence. Finally, it analyses state interpretations of international law’s prescriptive norms regarding the use of force when applied to cyberspace.
42
Charles, Parkinson. 3 Sudan. Oxford University Press, 2007. http://dx.doi.org/10.1093/acprof:oso/9780199231935.003.0003.
Full textAbstract:
The Sudan Self-Government Statute of 1953 contained the first bill of rights written in a territory under British dominion. The timetable for Sudan's constitutional decolonization and the content of its constitutional instrument were heavily influenced by international considerations, specifically because Britain shared dominion over the Sudan with Egypt and Egypt controlled the geopolitically crucial Suez Canal. Cold War politics then dictated that British policy on the Sudan was closely linked to Britain's negotiations with the Egyptian Government about a defence treaty over the Suez Canal. The impetus for the bill of rights came from educated northern Sudanese politicians who, inspired by international human rights instruments, saw a bill of rights as an aspirational statement of the Sudan's desire to become an independent nation state.
43
Weller, Marc. Introduction: International Law and the Problem of War. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0001.
Full textAbstract:
This chapter examines the role of international law in preventing war and armed conflict. It begins by discussing three approaches to war and peace: the realist approach, the managerial approach, and the utopian visionary approach. It then considers some of the features of the United Nations system that were drawn from the League of Nations experience, including enforcement, dispute resolution, rule of law, prohibition of the use of force, and self-defence. The chapter also analyses how the UN Security Council deals with armed attacks undertaken by non-state actors, such as acts of terrorism. Finally, it outlines new challenges to the law on the use of force, particularly the new potential for armed conflict following the end of the Cold War, the issue of humanitarian intervention, and claims to enforcement of global community values.
44
Jörg, Kammerhofer. Part 1 The Cold War Era (1945–89), 29 The US Intervention in Nicaragua—1981–88. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0029.
Full textAbstract:
This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.
45
Behrens, Paul. The Personal Inviolability of Diplomatic Agents in Emergency Situations. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198795940.003.0006.
Full textAbstract:
Personal inviolability is one of the oldest rights of diplomatic agents and is often considered to be at the root of diplomatic immunity. The wording it received in the Vienna Convention does not allow for any exceptions. But the absolute nature of the right can lead to difficulties—especially in situations in which diplomats themselves cause a danger to the general public or particular individuals. This chapter explores potential inroads under international law into the concept of inviolability and thus discusses the applicability of self-defence, necessity, and distress in situations of emergency. It also raises the question whether the human right to life imposes certain obligations on the receiving State which are capable of limiting diplomatic inviolability. In a concluding section, the chapter reflects on the justifications which are particularly likely to carry validity in situations marked by a need to deal with dangers arising from diplomatic actions.
46
Stuart, Casey-Maslen, Clapham Andrew, Giacca Gilles, and Parker Sarah. The Preamble. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198723523.003.0003.
Full textAbstract:
This chapter analyses the preamble of the ATT. The preamble of an international treaty typically sets out its purpose and the context of its adoption. The ATT is unusual in that in addition to eighteen preambular paragraphs it contains a set of eight principles in accordance with which the states parties are ‘determined to act’. Each of the preambular paragraphs includes an acknowledgement of the right of all states to manufacture, develop, acquire, import, export, transfer, and retain conventional arms and related items and capabilities for self-defence and security needs and in order to participate in peace support and humanitarian operations. This right, however, does not create any obligation for states to do so and such rights must be exercised in accordance with international law.
47
Koutroulis, Vaios. The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0027.
Full textAbstract:
This chapter examines the approach used by arbitral tribunals and commissions of inquiry or fact-finding missions with respect to rules governing the use of force after the adoption of the UN Charter in 1945, with emphasis on the right to self-defence and the conditions relating to its exercise. It assesses the legal significance of arbitral awards and fact-finding reports and considers how they have interpreted and applied jus contra bellum—the prohibition of the use of force in international relations and its exceptions. The chapter focuses on two significant arbitration precedents: the Eritrea Ethiopia Claims Commission and an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS). Finally, it discusses questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter, and whether such rules are applicable to non-state actors.
48
Paulina, Starski. Part 2 The Post-Cold War Era (1990–2000), 42 The US Airstrike Against the Iraqi Intelligence Headquarters—1993. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0042.
Full textAbstract:
This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.
49
Distefano, Giovanni. Use of Force. Edited by Andrew Clapham and Paola Gaeta. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199559695.003.0022.
Full textAbstract:
This chapter examines the provisions of the Charter of the United Nations (UN Charter) concerning the comprehensive ban on the use of force in international relations between states. It provides a legal definition of aggression and self-defence and addresses some unanswered questions concerning some of the alleged exceptions to the comprehensive ban on the use of force. It shows that the obligation not to resort to threat or use of force is not subordinated to the actual functioning of the UN collective security system and highlights the UN Charter’s establishment of substantive and institutional framework for making the prohibition on the use and threat of force between states a truly attainable goal.
50
François, Dubuisson, and Koutroulis Vaios. Part 1 The Cold War Era (1945–89), 16 The Yom Kippur War—1973. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0016.
Full textAbstract:
This contribution discusses the hostilities that opposed Israel against Egypt, Syria and the armed forces of other Arab states, which took place in October 1973. After setting out the context of this confrontation, which is directly linked to the 1967 Six Days War, it presents the legal positions of the main protagonists (Israel, Egypt, Syria) as well as those of third states and international organizations. The third section examines the legality of this resort to force under jus ad bellum and concludes that the military operations on behalf of the Arab states can be justified as an exercise of the right to self-defence. Finally, the conclusions discuss the limited precedential value of this specific incident with respect to the interpretation of the prohibition to use force in international relations.