6. Law, Politics, and the Use of Force

2015 ◽  
Author(s):  
Justin Morris
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Legal Constraint ◽  
Self Interest ◽  
The Status ◽  
State Behaviour ◽  
Jus Cogens

This chapter explores the role of international law in international politics, with particular emphasis on the effectiveness of legal constraint of the use of force by states. It first considers the effect of international law on state behaviour, focusing on the so-called ‘perception–reality gap’, before discussing three reasons why states obey the law: coercion, self-interest, and legitimacy. It then examines the concepts of jus ad bellum and jus in bello; the former governs and seeks to limit resort to armed force in the conduct of international relations, while the latter governs and seeks to moderate the actual conduct of hostilities. Jus in bello is further subdivided into Geneva law and Hague law, both of which generally have the status of jus cogens.

7. Law, Politics, and the Use of Force

2018 ◽  
pp. 108-126
Author(s):  
Justin Morris
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Politics ◽  
Use Of Force ◽  
Apparent Paradox ◽  
Power Politics ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Legal Constraint ◽  
Self Interest

This chapter examines the place of international law in international politics, with particular emphasis on whether legal constraint is effective in averting or limiting the use of force by states. It begins with a discussion of the efficacy of international law in regulating the behaviour of states, focusing on the so-called perception–reality gap in international law. It then considers various reasons why states obey the law, from fear of coercion to self-interest and perceptions of legitimacy. It also explores the role and status of breaches of international law in international politics as well as the functions of the two laws of armed conflict, namely, jus ad bellum and jus in bello. Finally, it analyses the apparent paradox of legal constraint on warfare in relation to power politics and the mitigatory effects of norms governing the conduct of war.

Part 1 The Cold War Era (1945–89), 5 The Soviet Intervention in Hungary—1956

2018 ◽  
Author(s):  
Lieblich Eliav
Keyword(s):  
Cold War ◽  
International Law ◽  
Real Time ◽  
Use Of Force ◽  
Warsaw Pact ◽  
Jus Ad Bellum ◽  
Soviet Invasion ◽  
The Cold War

In late October 1956, the Soviet army crushed a burgeoning rebellion in Hungary, ostensibly upon the invitation of the Hungarian government, and allegedly in conformity with the provisions of the Warsaw Pact. While the intervention was widely condemned, international law could not prevent the Soviet invasion nor secure the USSR's withdrawal from Hungary. Seven decades later, this Chapter analyses the Soviet intervention under jus ad bellum. It focuses on the positions of relevant actors in real-time, as well as on the enduring aspects of the affair. As the Chapter reveals, the Hungary intervention presented dilemmas that plague the law on the use of force even in contemporary times. It raised questions that remain burning today, such as the role of consent in legalizing external forcible intervention, the ability of international law to face superpowers, and the dialectics between effectiveness and legitimacy in the determination of lawful authority during internal strife.

Not so Moderate

2021 ◽  
pp. 443-458
Author(s):  
Carlos Arévalo ◽  
Julián Huertas
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Economic Changes ◽  
The Status ◽  
Jus Cogens ◽  
Analytical Tools ◽  
The Relationship

This chapter demonstrates how the Colombian Constitutional Court shaped the relationship between municipal and international law by decisively defining the role of international law in Colombia. It resorts to the classical distinction between monism and dualism as analytical tools to study the Colombian Constitutional Court's decisions. The Court's position regarding the interaction between international and domestic law does not fit the 'moderate monism' model it has claimed to have followed since 1998. On the contrary, the answer to the question about the status of general international law in the Colombian constitutional order is at some point between constitutional monism and dualism. To that extent, with the exceptions of jus cogens, international human rights law, international humanitarian law, and border delimitation, the Colombian Constitutional Court follows a “sovereigntist or statist” position, in which there is a general prevalence of domestic legislation over international law. However, the chapter does recognize that the Court has found a useful tool in international law to advance in significant social, political, and economic changes.

15. The law of armed conflict

2019 ◽  
pp. 377-406
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Prisoners Of War ◽  
Armed Force ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Law Of Armed Conflict ◽  
The Law ◽  
The Right

This chapter assesses the law of armed conflict. The right to resort to armed force, known as ‘jus ad bellum’, is a body of law that addresses the permissibility of entering into war in the first place. Despite the restrictions imposed by this body of law, it is clear that international law does not fully forbid the use of force, and instances of armed disputes between and within States continue to exist. Consequently, a second, older body of law exists called ‘jus in bello’, or the law of armed conflict, which has sought to restrain, or at least to regulate, the actual conduct of hostilities. The basic imperative of this body of law has been to restrict warfare in order to account for humanitarian principles by prohibiting certain types of weapons, or protecting certain categories of persons, such as wounded combatants, prisoners of war, or the civilian population.

Limiting Third States’ Military Activities in the EEZ: ‘Due Regard Obligations’ and the Law on the Use of Force Applied to Nuclear Weapons

2019 ◽  
Vol 34 (1) ◽  
pp. 128-143
Author(s):  
Charlotte Beaucillon
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Use Of Force ◽  
General Analysis ◽  
Exclusive Economic Zone ◽  
Law Of The Sea ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Economic Zone ◽  
The Law

Abstract The aim of this article is to contribute to the general analysis of ‘due regard obligations’, through their articulation with branches of international law other than the law of the sea. More specifically, it focuses on the law of military activities at sea, as governed by international law on the use of force and nuclear weapons. It is argued here that the scope of the Law of the Sea Convention’s ‘due regard obligations’ cannot be examined in a vacuum, but should rather, to the extent possible, be interpreted in conformity with other related sources of international law. Reciprocally, this paper shows that some rules of jus ad bellum and jus in bello applicable to the use of nuclear weapons in a third state’s exclusive economic zone, fail to consider other simultaneously applicable obligations, which could well be grasped through the prism of ‘due regard’.

Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese war

2006 ◽  
Vol 88 (864) ◽  
pp. 779-792 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Legal Framework ◽  
Large Area ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Individual Actions ◽  
Proportionality Test ◽  
Self Defence

AbstractThis article analyses the role and content of proportionality under contemporary international law governing the use of force, with a view to clarifying the legal framework governing the conduct of the parties to an armed conflict. In the system of jus ad bellum, protection is primarily granted to the interest of the attacked state in repelling the attack; the other competing interests are considered only to curtail the choice of the means to be employed in order to achieve that aim. Conversely, in the system of jus in bello there is by definition no prevailing interest, but instead a variety of interests and values which are entitled to equal protection of the law and must be balanced against each other. The existence of two distinct normative systems, with distinct standards of legality applicable to the same conduct, does not as a rule give rise to major problems. The legality of recourse to force is measured against the proportionality of self-defence, whereas individual actions would have to conform to the requirement of proportionality in jus in bello. However, beyond the large area in which these two standards overlap, there might be situations in which the strict application of the jus ad bellum standard makes it impossible to achieve the aims of jus in bello. In these cases, the proportionality test under jus in bello must be regarded as part of the proportionality test under jus ad bellum. States must thus take humanitarian implications into account in determining the level of security they may seek to obtain using military action.

Automatic Cyber Defence and the Laws of War

2018 ◽  
Vol 60 (1) ◽  
pp. 203-237
Author(s):  
Nicholas Tsagourias ◽  
Russell Buchan
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Computer Hardware ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Armed Attack ◽  
Jus In Bello ◽  
Jus Ad Bellum

Automatic cyber defence describes computer operations to neutralise a cyber attack. Once a system detects that it is under cyber attack, it automatically launches offensive cyber operations that pursue the attacker back to its own network with the objective of rescuing stolen data or disabling or destroying the computer hardware and software that is responsible for hosting and distributing the attacking code. The aim of this article is to examine the legality of automatic cyber defence under the law regulating the use of force in international law (jus ad bellum) and under international humanitarian law (jus in bello). Thus, the first part of this article examines automatic cyber defence in the context of the jus ad bellum by considering the legal requirements of an armed attack, necessity, and proportionality. In the second part, it examines the jus in bello aspects of automatic cyber defence and, in particular, whether it triggers an international or a non-international armed conflict and, if so, whether it can comply with the principles of distinction and proportionality.

National Liberation in the Context of Post- and Non-Colonial Struggles for Self-Determination

2016 ◽  
Author(s):  
Elizabeth Chadwick
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
Armed Conflicts ◽  
Self Determination ◽  
National Liberation ◽  
Jus In Bello ◽  
International Support ◽  
Jus Ad Bellum ◽  
Legal Limits

This chapter examines the contemporary viability of self-determination and liberation conflicts in the context of the use of force and the limits placed on that force. Drawing on the parameters of restraint developed in humanitarian and human rights laws, it explores the role of force in the struggles for self-determination. The chapter begins with an assessment of the role played by coercion in the internal affairs of states, followed by a discussion on self-determination in relation to jus in bello, jus ad bellum, terrorism, and human rights. It then considers the normative and legal limits placed on force between states compared to the limits on force utilized within states between governments and non-state actors. The chapter concludes by analysing the extent to which existing rules are affected by international support for ‘legitimate’ revolutionary armed conflicts for self-determination.

scholarly journals 110 years of the Second Hague Conference: role of the Russian diplomacy and International Law doctrine of F. Martens

2017 ◽  
pp. 78-83
Author(s):  
E. Voronin
Keyword(s):  
International Law ◽  
Social System ◽  
Use Of Force ◽  
Russian Society ◽  
Coup D'etat ◽  
Legal Principles ◽  
The Public ◽  
Public Expression ◽  
Real Essence

Facts backed up by documents and contemporary testimonies must serve as a basis for the consequencies of the events of 1917, as a verification of any impartial estimation and indiscriminate view on the most brutal revolt in history, and its consequences.The Russian society needs an impartial, just and deep analysis of these events. Foremost this would require a clear civilised understanding of the real essence of any coup d’etat, whatever name it takes (revolution, classjustified struggle, etc) and whatever banners it bears in history, and whatever propaganda and ideological falcifications determine it.The Constitution of any state ruled by law acknowledges any evolution in the development of the sociaty based on legal principles. Any change of institutes or social system in a state can be realised through the force of laws, which comply with the public expression of will (referendum). In national legislation of the present-day states there are no norms, which establish revolutionary convulsions as legal, which are based on illegitimate take-over with the use of force.

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