Ch.7 Decisions and Documents

2014 ◽  
Author(s):  
Sievers Loraine ◽  
Daws Sam
Keyword(s):  
Security Council ◽  
General Assembly ◽  
Sensitive Area ◽  
Armed Attack ◽  
Member States ◽  
Collective Self ◽  
Primary Means ◽  
Multiple Meanings ◽  
The Right ◽  
Self Defence

This chapter discusses the procedures for coming to a consensus within the Security Council and communicating the decision to the broader public. The term ‘decision’ within this context also carries multiple meanings, and when applied in its narrowest sense is used to denote only those decisions of the Council which are intended to be mandatory or binding, as opposed to recommendations, exhortations, or expressions of opinion. Communications also possesses multiple definitions under the Council, as it is a complex and politically sensitive area of the Security Council's practice. Written communications are a primary means by which UN Member States and non-Member States bring disputes or situations ‘to the attention of’ the Security Council or the General Assembly. Another category obligates Member States to report immediately to the Council on measures taken in the exercise of the right of individual or collective self-defence if an armed attack occurs.

Anticipatory Self-Defence in the Legislative History of the United Nations Charter

1991 ◽  
Vol 25 (1) ◽  
pp. 1-42 ◽  
Author(s):  
Timothy L. H. McCormack
Keyword(s):  
United Nations ◽  
Security Council ◽  
Security Measures ◽  
International Peace ◽  
Armed Attack ◽  
Peace And Security ◽  
The United Nations ◽  
The Right ◽  
United Nations Charter ◽  
Self Defence

Article 51 of the United Nations Charter states that:Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.International lawyers are still arguing about the scope of the right of self-defence in Article 51 of the U.N. Charter. Most of the arguments focus on the semantics of Article 51. Those who argue for a “restrictive view” of the provision emphasise the qualifying phrase “if an armed attack occurs”.

4 Self-defence: the framework

2018 ◽  
Author(s):  
Gray Christine
Keyword(s):  
United Nations ◽  
General Framework ◽  
Terrorist Attacks ◽  
Armed Attack ◽  
Collective Self ◽  
The Subject ◽  
The Creation ◽  
State Actors ◽  
The Right ◽  
Self Defence

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.

Activating the Mutual Assistance Clause of the Treaty on the European Union and the Right of Self-defence

2019 ◽  
pp. 71-92
Author(s):  
Carlos Espaliú Berdud
Keyword(s):  
Terrorist Attack ◽  
Customary Law ◽  
Armed Attack ◽  
Member States ◽  
Mutual Assistance ◽  
Eu Member States ◽  
Contextual Elements ◽  
New Interpretation ◽  
The Right ◽  
Self Defence

Following the 2015 Paris attacks, one of the most discussed issues is whether the Paris incidents constitute an ‘armed attack’ requisite to trigger the right of self-defence in light of the wording of Article 51 of the UN Charter of 1945. Indeed, should the responses of the Member States to the Paris attacks, activating the mutual assistance clause, be seen as a move towards the formation of a new customary rule reshaping the content of the right of individual or collective self-defence in accordance with Article 51 of UN Charter and customary law? Or should that invocation of Article 42 (7) TEU be considered a violation of the UN Charter law of self-defence? This chapter examines the textual and contextual elements of Article 51 of the UN Charter and the practice of States since then, mainly in the context of the activity of the UN Security Council. After a careful examination of those elements, it concludes that if it can be said that the existing rule in international law in both conventional and customary law allowing states to have recourse to the use of force in self-defence can only be legally exercised in the presence of an armed attack committed by a state, it can be argued that the current practice of states appears to be heading in another direction. For the drafters of Article 51 of the UN Charter the right of self-defence was already ‘inherent’. If they had been in the current situation, they may have extended this right to cases of major terrorist attacks. In view of this context, the invocation of Article 42 (7) TEU in response to a serious terrorist attack, like those in Paris in November 2015, cannot be considered a violation of Article 51 of the UN Charter. Many of the EU Member States are prepared to entertain a new interpretation of that provision, at least that portion which respects the scope of the ratione personae.

33. Use or threat of force by states

2019 ◽  
pp. 717-748
Author(s):  
James Crawford
Keyword(s):  
Security Council ◽  
Individual Member ◽  
Enforcement Action ◽  
Peacekeeping Operations ◽  
Primary Responsibility ◽  
Un Security Council ◽  
Collective Self ◽  
Peace And Security ◽  
The Right ◽  
Self Defence

This chapter discusses international law governing the use or threat of force by states. The UN Security Council has primary responsibility for enforcement action to deal with breaches of the peace, threats to the peace, or acts of aggression. Individual member states have the right of individual or collective self-defence, but only ‘until the Security Council has taken measures necessary to maintain international peace and security’. However, the practice has evolved of authorizing peacekeeping operations that are contingent upon the consent of the state whose territory is the site of the operations.

Treaty Stipulations in Favor of Third States

1956 ◽  
Vol 50 (2) ◽  
pp. 338-357 ◽  
Author(s):  
Eduardo Jiménez de Aréchaga
Keyword(s):  
United Nations ◽  
Security Council ◽  
General Assembly ◽  
Member States ◽  
Economic Problems ◽  
The United Nations ◽  
Article 50 ◽  
The Right ◽  
United Nations Charter

Many recent and important treaties contain provisions in favor of third states. The United Nations Charter, for instance, confers upon non-member states the right to participate in the discussion of disputes in which they are involved (Article 32); the right to bring such disputes to the attention of the Security Council or the General Assembly (Article 35); and the right to consult the Security Council with regard to the solution of special economic problems arising from the application of preventive or enforcement measures (Article 50). Also Articles 2 (7) and 81 have been interpreted and applied as conferring rights upon states not Members of the Organization.

The invocation of the right to self-defence in response to armed attacks conducted by armed groups: Implications for attribution

2018 ◽  
Vol 32 (01) ◽  
pp. 91-110 ◽  
Author(s):  
Erika de Wet
Keyword(s):  
Due Diligence ◽  
Armed Groups ◽  
Armed Attack ◽  
International Court Of Justice ◽  
International Court ◽  
State Actors ◽  
The Right ◽  
United Nations Charter ◽  
Territorial States ◽  
Self Defence

AbstractThe right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within thejus ad bellumparadigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986Nicaraguadecision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.

11. Use of force

2021 ◽  
pp. 149-164
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
United Nations ◽  
Security Council ◽  
Use Of Force ◽  
United Nations Security Council ◽  
Armed Force ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the United Nations Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

Blockades and Interdictions

2016 ◽  
Author(s):  
Wolff Heintschel von Heinegg
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Treaties ◽  
Jus Ad Bellum ◽  
Un Security Council ◽  
Collective Self ◽  
Rules And Principles ◽  
Principle Of Proportionality ◽  
The Right ◽  
Self Defence

This chapter examines the rules and principles that govern a naval or aerial blockade or some other form of interference with foreign vessels and aircraft in the absence of an explicit authorization by the UN Security Council. After clarifying the concept of blockade under the jus ad bellum and the jus in bello, it considers blockades authorized as military enforcement measures. It also discusses some unresolved or even contested issues regarding the legality of blockades, with reference to blockades in situations other than international armed conflict and the principle of proportionality in relation to humanity. The scope of interdiction operations and its legal bases under international treaties are analysed next, together with maritime interdiction operations and the applicability of prize law during non-international armed conflicts. Finally, the chapter explores the right of individual or collective self-defence as a basis for interdiction operations.

The Prohibition of the Use of Force and Non-Intervention

2016 ◽  
Author(s):  
Jean Michel Arrighi
Keyword(s):  
Member State ◽  
Dispute Settlement ◽  
Use Of Force ◽  
Member States ◽  
American States ◽  
Peaceful Settlement ◽  
Collective Self ◽  
History Of ◽  
Settlement Of Disputes ◽  
Self Defence

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.

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