13. Enforcement short of force

2019 ◽  
pp. 323-345
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Armed Force ◽  
International Regime ◽  
International Obligations

This chapter focuses on enforcement short of force in international law, particularly studying countermeasures, the primary measures available to States in order to induce compliance of wrongdoers with their international obligations. In the last decades, there has been the codification and attempted development by the ILC, in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) of an international regime regulating countermeasures. To characterize an act as a ‘countermeasure’ is to concede its illegality in normal circumstances: by definition, countermeasures are acts which are ‘intrinsically unlawful, but are justified by the alleged initial failing to which they were a response’. Countermeasures may not in any case involve the use of armed force. The chapter also discusses the category of reprisals, the so-called ‘acts of retorsion’, and sanctions.

scholarly journals SECURING HUMAN RIGHTS IN THE FACE OF INTERNATIONAL INTEGRATION

2011 ◽  
Vol 60 (1) ◽  
pp. 125-165 ◽  
Author(s):  
Israel de Jesús Butler
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Level ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Governmental Organizations ◽  
The Face ◽  
International Obligations ◽  
Increasing Risk

AbstractThe continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.

The Politics of International Regime Complexity

2009 ◽  
Vol 7 (1) ◽  
pp. 13-24 ◽  
Author(s):  
Karen J. Alter ◽  
Sophie Meunier
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
International Cooperation ◽  
International Regimes ◽  
International Regime ◽  
Introductory Essay ◽  
Election Monitoring ◽  
International Obligations

The increasing density of international regimes has contributed to the proliferation of overlap across agreements, conflicts among international obligations, and confusion regarding what international and bilateral obligations cover an issue. This symposium examines the consequences of this “international regime complexity” for subsequent politics. What analytical insights can be gained by thinking about any single agreement as being embedded in a larger web of international rules and regimes? Karen Alter and Sophie Meunier's introductory essay defines international regime complexity and identifies the mechanisms through which it may influence the politics of international cooperation. Short contributions analyze how international regime complexity affects politics in specific issue areas: trade (Christina Davis), linkages between human rights and trade (Emilie Hafner-Burton), intellectual property (Laurence Helfer), security politics (Stephanie Hofmann), refugee politics (Alexander Betts), and election monitoring (Judith Kelley). Daniel Drezner concludes by arguing that international regime complexity may well benefit the powerful more than others.

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

2020 ◽  
Vol 2020 (2020) ◽  
pp. 186-202
Author(s):  
Ion GÂLEA ◽  
Keyword(s):  
Public Opinion ◽  
International Law ◽  
Common Sense ◽  
Prima Facie ◽  
Fundamental Change ◽  
The Public ◽  
Force Majeure ◽  
International Obligations ◽  
International Responsibility ◽  
The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

scholarly journals International Law and its Application: Biodiversity and International Obligations Derived from Natural Genetic Resources in Costa Rica

2012 ◽  
Vol 1 (12) ◽  
Author(s):  
Sergio Peña-Neira
Keyword(s):  
Costa Rica ◽  
Genetic Resources ◽  
International Law ◽  
International Obligations

La distribución de los beneficios derivados de la utilización de los recursos naturales genéticos es uno de los principales problemas abordados por el Convenio sobre la Diversidad Biológica, aun cuando la obligación de los Estados miembros a adoptar medidas legales, administrativas y de política con respecto a su aplicación a nivel nacional, porque todos los Estados miembros (países en desarrollo y desarrollados) deben cumplir con el principio pacta sunt servanda. El no respetar esta obligación de derecho internacional derivada de un tratado internacional resulta en una violación de las obligaciones internacionales. Es posible encontrar un ejemplo de tal aplicación. Este artículo se centra en la interpretación del artículo 15. 7 de la Convención sobre la Diversidad Biológica para aplicar esta obligación internacional a derechos y obligaciones legales internos, para cumplir con la obligación y el segundo paso, la aplicación de esta normativa legal nacional en el territorio de un Estado, Costa Rica.

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.

Use of Armed Force against Suspected Foreign Submarines in the Swedish Internal Waters and Territorial Sea

2018 ◽  
Vol 33 (3) ◽  
pp. 585-599
Author(s):  
Said Mahmoudi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Present Article ◽  
National Level ◽  
Use Of Force ◽  
Armed Force ◽  
National Legislation ◽  
Legal Arguments ◽  
Actual Response ◽  
Self Defence

Abstract Sweden’s territorial sea and internal waters have experienced regular intrusions by submerged foreign submarines since the early 1950s. The response of the country to such intrusions is generally well-documented and mainly public. The present article offers an overview of the development of the relevant national legislation, the actual response of the naval forces, and the legal arguments invoked at national level to justify or dismiss use of force in self-defence or under another title. The article discusses the relevance of the immunity that submarines normally enjoy under international law and Sweden’s human-rights obligations, two issues that have been at the centre of the legal discourse. Particular attention is paid to developments since 2014 when a new round of “submarine hunts” started and led to the adoption of new measures both revising the existing laws and strengthening the defence forces.

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.

14. Enforcement

2020 ◽  
pp. 294-310
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
International Relations ◽  
International Law ◽  
International Organizations ◽  
Armed Force ◽  
Typical Form

This chapter analyses the enforcement of international law by States acting individually, that is, decentralized enforcement, including by their courts, as well as through retortion or countermeasures (once called reprisals). This is the typical form of enforcement under traditional international law. At the same time, enforcement might take place through measures taken by States acting collectively, that is, through mechanisms that include resort to collective measures, such as those adopted at the UN level (or within other international organizations), which can lead to collective sanctions. The first form of enforcement looks at the traditional law governing retortion and reprisals or countermeasures (as they are now called), as well as at the post-1945 law, taking into account that the ban on the use of armed force in international relations imposes that all enforcement measures taken by States individually must be peaceful. The second form examines the issue of collective sanctions, such as those taken at UN level.

The Effects of a State of War or Armed Conflict

2016 ◽  
Author(s):  
Marina Mancini
Keyword(s):  
International Relations ◽  
United Nations ◽  
International Law ◽  
Armed Conflict ◽  
Armed Force ◽  
Diplomatic Relations ◽  
Trade Relations ◽  
State Practice ◽  
The Creation ◽  
The United Nations

This chapter explores how a state of war or armed conflict affects the relations between belligerents, between belligerents and third states, and the belligerents’ subjects. It begins by describing how a state of war arose between two states, along with its far-reaching consequences, in classical international law. The effects on diplomatic relations, trade relations, treaties, and contracts are highlighted. The chapter then considers the prohibition on the use or threat of armed force in international relations and its implications for the concept of a state of war as well as the consequences traditionally attached to it. It also looks at state practice regarding the creation of a state of war in the United Nations era and concludes by analysing the effects of an interstate armed conflict in contemporary international law.

Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures

2020 ◽  
Vol 32 (1) ◽  
pp. 1-27
Author(s):  
Azadeh Dastyari ◽  
Daniel Ghezelbash
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Best Practice ◽  
The United States ◽  
Human Rights Law ◽  
Refugee Status ◽  
State Practice ◽  
International Obligations

Abstract Austria and Italy have recently proposed that processing the protection claims of asylum seekers attempting to cross the Mediterranean should take place aboard government vessels at sea. Shipboard processing of asylum claims is not a novel idea. The policy has been used for many years by the governments of the United States and Australia. This article examines the relevant international law, as well as State practice and domestic jurisprudence in the United States and Australia, to explore whether shipboard processing complies with international refugee and human rights law. It concludes that, while it may be theoretically possible for shipboard processing to comply with international law, there are significant practical impediments to carrying out shipboard processing in a manner that is compliant with the international obligations of States. Current practices in the United States and Australia fall short of what is required. Nor is there any indication that the Austrian/Italian proposal would contain the required safeguards. It is argued that this is by design. The appeal of shipboard processing for governments is that it allows them to dispense with the safeguards that asylum seekers would be entitled to if processed on land. Best practice is for all persons interdicted or rescued at sea to be transferred to a location on land where they have access to effective status determination procedures and are protected from refoulement and unlawful detention.

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