scholarly journals TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 266-270 ◽  
Author(s):  
Ntina Tzouvala
Keyword(s):  
International Law ◽  
Third World ◽  
Legal Theory ◽  
Use Of Force ◽  
Theory And Practice ◽  
History Of ◽  
Scope Of Application ◽  
Political Commitments ◽  
The Right ◽  
United Nations Charter

Given the long history of violent encounters between the Global North and the Global South, legal arguments concerning the use of force are a fertile ground for testing the virtues and limits of Third World Approaches to International Law (TWAIL) as a theory aspiring to “address the material and ethical concerns of Third World peoples.” This essay examines the usefulness and limits of TWAIL in the context of the “unwilling or unable” doctrine currently promoted by a series of Western scholars and states in order to expand the scope of application of the right to self-defence under Article 51 of the United Nations Charter. Adopting TWAIL’s impulse to historicize, this essay argues that the structure of this doctrine closely replicates the “standard of civilization” that informed international legal theory and practice throughout the nineteenth century. At the same time, widespread resistance to the “unwilling or unable” doctrine indicates that the profound transformation of international law on the use of force after 1945 and the diffusion of sovereignty outside the West put into question certain methodological and political commitments of TWAIL.

The Soviet Approach to the Right of Peoples to Self-determination: Russia’s Farewell to jus publicum europaeum

2017 ◽  
Vol 19 (2) ◽  
pp. 200-218 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
20Th Century ◽  
Theory And Practice ◽  
Self Determination ◽  
The West ◽  
The Real ◽  
Liberal Democratic ◽  
History Of ◽  
History Of International Law ◽  
The Right

The aim of this article is to explore the theory and practice of the Soviet position on the right of peoples to self-determination in 1917 and afterwards. It is a misunderstanding to mention Lenin’s (the Bolsheviks’) and Wilson’s concepts of self-determination in one breath, as ‘precursors’ in international law. The Soviet concept of the right of peoples to self-determination was adopted for tactical and propagandistic purposes, and it had little in common with the liberal democratic concept of this right that saw the right of peoples to self-determination as an end in itself. The real contribution of the Russian Bolsheviks to the history of international law has, to some extent, been overlooked. Throughout the 20th century, the West and the ussr had different regional standards and usages of the right of peoples to self-determination, thus presenting a continuous challenge to the idea of the universality of international law.

The Oxford Handbook of the Use of Force in International Law

2016 ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Security Challenges ◽  
Democratic Action ◽  
The Status ◽  
Recent Developments ◽  
History Of ◽  
The Subject ◽  
The Law ◽  
The Right

This Oxford Handbook is a comprehensive and authoritative study of the modern law on the use of force. Over 50 experts in the field offer a detailed analysis, and to an extent a restatement, of the law in this area. The Handbook reviews the status of the law on the use of force and assesses what changes, if any, have occurred as a result of recent developments. It offers cutting-edge and up-to-date scholarship on all major aspects of the prohibition of the use of force. Part I reviews the history of the subject and its recent challenges, and addresses the major conceptual approaches. Part II covers collective security, in particular the law and practice of the UN organs, and of regional organizations and arrangements. Part III considers the substance of the prohibition of the use of force and the right to self-defence and associated doctrines. Part IV is devoted to armed action undertaken on behalf of peoples and populations, including self-determination conflicts, resistance to armed occupation, and forcible humanitarian and pro-democratic action. The possibility of the revival of classical, expansive justifications for the use of force is addressed in Part V, followed by Part VI which considers new security challenges and the emerging law in relation to them. Part VII ties the key arguments developed in the book into a substantive conclusion. The Handbook is essential reading for scholars and students of international law and the use of force, and legal advisers to both governments and NGOs.

Self-Defense

2012 ◽  
Author(s):  
Mary Ellen O’Connell
Keyword(s):  
World War Ii ◽  
International Law ◽  
Computer Network ◽  
Use Of Force ◽  
Government Policies ◽  
Military Force ◽  
Self Defense ◽  
History Of ◽  
The Right ◽  
Computer Network Attacks

Humanity has always recognized that individuals should have the right to defend themselves from violence. In international law this basic normative intuition is codified for states in the Charter of the United Nations, Article 51 (see Randelzhofer 2002, cited under Conditions in Article 51). Article 51 is an exception to the Charter’s general prohibition on the use of force found in Article 2(4). The prohibition on the use of force is at the heart of the Charter, given that the most fundamental aim of the Charter and the UN organization created by the Charter is to “save succeeding generations from the scourge of war” (Preamble). It stands to reason that any right to use force as an exception to the general prohibition on resort to force would be narrow. Article 51 permits a state to act in unilateral or collective self-defense only “if an armed attack occurs.” This article concerns the international law exception to the prohibition on force for self-defense. The commentary on Article 51 is extensive and generally falls into one of two categories: first, scholarship, judicial decisions, and government policies that support Article 51’s plain terms; second, scholarship and government policies that advocate expanding the right to use force beyond Article 51’s provisions. The writers in these two categories have various labels but are most commonly referred to as the “strict” interpreters versus the “broad” interpreters. One author refers to the groups as the “restrictivists” versus the “antirestrictivists.” The divergence of views can be explained to some extent by the differing assessments writers make about the utility of resort to military force. The UN Charter was drafted at the end of World War II, when confidence in military force was certainly low and commitment to ending the use of force was high. Fifty years later, perhaps frustrated by the lack of success with other means, writers (especially in a few militarily powerful states) urged relaxing the rules against force to respond to terrorism, weapons programs, and computer network attacks. Some try to justify force under the principles of necessity and proportionality, rules beyond the UN Charter but equally important in the long history of normative thinking on killing in self-defense.

Theorising the Right to Environment: An Africological Typology

2019 ◽  
Vol 27 (1) ◽  
pp. 25-49
Author(s):  
Godwin E. K. Dzah
Keyword(s):  
International Law ◽  
Third World ◽  
Legal Theory ◽  
Reflexive Sociology ◽  
The Right

This article is an Africological critique of the emergence of the right to environment and the universality of rights generally. The article draws on Third World approaches to international law, postcolonial legal theory and Bourdieu's reflexive sociology to illuminate this Africological inquiry into the emergence of the right to environment within international law.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

The Justification of War and International Order

2021 ◽  
Keyword(s):  
International Relations ◽  
Early Modern ◽  
International Law ◽  
Use Of Force ◽  
International Order ◽  
Frame Of Reference ◽  
Pertinent Literature ◽  
Modern Times ◽  
History Of ◽  
Early Modern Times

The history of war is also a history of its justification. The contributions to this book argue that the justification of war rarely happens as empty propaganda. While it is directed at mobilizing support and reducing resistance, it is not purely instrumental. Rather, the justification of force is part of an incessant struggle over what is to count as justifiable behaviour in a given historical constellation of power, interests, and norms. This way, the justification of specific wars interacts with international order as a normative frame of reference for dealing with conflict. The justification of war shapes this order and is being shaped by it. As the justification of specific wars entails a critique of war in general, the use of force in international relations has always been accompanied by political and scholarly discourses on its appropriateness. In much of the pertinent literature the dominating focus is on theoretical or conceptual debates as a mirror of how international normative orders evolve. In contrast, the focus of the present volume is on theory and political practice as sources for the re- and de-construction of the way in which the justification of war and international order interact. The book offers a unique collection of papers exploring the continuities and changes in war discourses as they respond to and shape normative orders from early modern times to the present. It comprises contributions from International Law, History and International Relations and from Western and non-Western perspectives.

scholarly journals The Challenge of Cyber Attacks in the “Information Age” and the Jus Ad Bellum

2019 ◽  
Vol 5 (2) ◽  
pp. 79
Author(s):  
Pshtiwan Mohammed Qader
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Information Age ◽  
Cyber Attacks ◽  
Armed Force ◽  
Critical Infrastructures ◽  
Cyber Attack ◽  
Armed Attack ◽  
Self Defense ◽  
The Right

The present paper examines the problem of cyber-attacks under existing international law. It takes the view that the (United Nations) UN Charter provisions on the use of force can be extended to cyber-attacks by means of interpretation although the relevant provisions do not explicitly address such issue. This Article argues that cyber-attacks resulting in material damage or destruction to property, death or injury to persons, or severe disruption of the functioning of critical infrastructures can be characterized as use of armed force and therefore violate the prohibition contained in article 2(4) of the Charter. However, cyber-attacks not resulting in the above consequences may be illegal intervention in the internal affairs of other states if such attacks are coercive in nature. In addition, the current study discusses that a cyber-attack which amounts to a use of armed force per se is not sufficient to give the victim state the right to self-defense, unless its scale and effects are equivalent to those of a conventional armed attack. Finally, the study concludes that an international cyber treaty is truly necessary to more effectively address cyber-attacks.

Justifications of the Use of Force as Constitutive Elements of World Order—Points of Departure, Arrivals, and Moving Destinations

2021 ◽  
pp. 503-524
Author(s):  
Lothar Brock ◽  
Hendrik Simon
Keyword(s):  
International Law ◽  
Use Of Force ◽  
World Order ◽  
Collective Violence ◽  
Early Modernity ◽  
History Of ◽  
Order Change ◽  
The Difference

In the book’s concluding chapter Lothar Brock and Hendrik Simon take up the notions of change, progress, and structural repetition (Wiederholungsstrukturen) as understood by Reinhart Koselleck. From a genealogical viewpoint, how and in which way do theories and practices of the justification of war and their meaning for world order change from early modernity to the present? Are there any signs of progress in terms of hedging collective violence and if so, what makes the difference? Or does the history of the justification of war repeat itself in endless cycles of justifying, criticizing, and reproducing war so that change and progress (if any) are stuck in these cycles? Whichever answer seems plausible: the contributions to this book show that international law is more than the white handkerchief in the dinner jacket of crocks.

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