The Preamble

2016 ◽  
Author(s):  
Casey-Maslen Stuart ◽  
Clapham Andrew ◽  
Giacca Gilles ◽  
Parker Sarah
Keyword(s):  
International Law ◽  
International Treaty ◽  
Humanitarian Operations ◽  
The Right ◽  
Self Defence ◽  
Do So

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.

Self-Defence and Israel in International Law: A Reappraisal

1976 ◽  
Vol 11 (4) ◽  
pp. 516-562 ◽  
Author(s):  
Barry Feinstein
Keyword(s):  
International Law ◽  
The State ◽  
Self Help ◽  
The Law ◽  
The Right ◽  
Self Defence

Dean Acheson frankly reconfirmed the right of self-preservation, when he asserted, “…law simply does not deal with … questions of ultimate power—power that comes close to the sources of sovereignty…. No law can destroy the state creating the law. The survival of states is not a matter of law”. It is beyond the law.Given the existence of man's elementary loyalty to autonomous states, the necessity for using force springs from the need of states to depend fundamentally on self-help in order to guarantee their survival and welfare. This search for security in a system of politics without government, forces the state to be dependent upon military self-help.

scholarly journals Shaping Indigenous Self-Determination: Promising or Unsatisfactory Solutions?

2011 ◽  
Vol 13 (4) ◽  
pp. 413-436 ◽  
Author(s):  
Mauro Barelli
Keyword(s):  
United Nations ◽  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
Straightforward Manner ◽  
History Of ◽  
United Nations Declaration ◽  
The Right ◽  
Right Of Self Determination ◽  
Do So

AbstractThe right of peoples to self-determination represents one of the most controversial norms of international law. In particular, two questions connected with the meaning and scope of this right have been traditionally contentious: first, who constitutes a ‘people’ for the purposes of self-determination, and, secondly, what does the right of self-determination actually imply for its legitimate holders. Against this unsettled background, the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirmed, in a straightforward manner, that indigenous peoples have the right to self-determination. In light of the uncertainties that were mentioned above, it becomes necessary to clarify the actual implications of this important recognition. This article will seek to do so by discussing the drafting history of the provision on self-determination contained in the UNDRIP and positioning it within the broader normative framework of the instrument.

scholarly journals Necessity and Proportionality and the Right of Self-Defence in International Law

2021 ◽  
Author(s):  
Chris O'Meara
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Third Party ◽  
Military Force ◽  
Total Force ◽  
Customary International Law ◽  
Defensive Action ◽  
The Right ◽  
Conceptual Meaning ◽  
Self Defence

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.

scholarly journals UŻYWANIE DRONÓW W CELU ZWALCZANIA TERRORYZMU ŚWIETLE ‘IUS AD BELLUM’

2016 ◽  
Vol 16 (2) ◽  
pp. 141 ◽  
Author(s):  
Łukasz Kułaga
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Point Of View ◽  
International Terrorism ◽  
Controversial Issues ◽  
Legal Regulations ◽  
Definition Of ◽  
The Right ◽  
The Military ◽  
Self Defence

The Use of Drones in Combating International Terrorism from the Perspective of ‘ius ad bellum’Summary The increasing practice of using armed unmanned aerial vehicles (military UAVs, commonly known as drones) by some countries to eliminate suspected terrorists raises a number of controversies from the perspective of international law. These controversies are also related to the specific features of military UAVs, which make it possible to kill targeted individuals without risk to the military personnel of the country concerned, and thereby may encourage the abusive interpretation of the applicable legal regulations. This article discusses these issues from the perspective of ius ad bellum, in particular the right to self-defence. It shows the main controversial points on the scope of invoking the right to self-defence in such cases, in particular the possibility of invoking the right to self-defence in response to an attack by a non-state entity, the question of pre-emptive self-defence, the importance of the severity of the force used as a condition allowing for the use of force in self-defence, and the relevance of the principles of proportionality and necessity. The article also presents an outline of the vast and highly controversial issues associated with the definition of terrorism from the point of view of international law.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

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.

The Right to Science

2021 ◽  
Keyword(s):  
Open Access ◽  
International Law ◽  
Life Extension ◽  
Science And Society ◽  
Dual Use ◽  
Human Right ◽  
Ideal Tool ◽  
The Right ◽  
Do So

That everyone has a human right to enjoy the benefits of the progress of science and its applications comes as a surprise to many. Nevertheless, this right is pertinent to numerous issues at the intersection of science and society: open access; 'dual use' science; access to ownership and dissemination of data, knowledge, methods and the affordances and applications thereof; as well as the role of international co-operation, human dignity and other human rights in relation to science and its products. As we advance towards superintelligence, quantum computing, drone swarms, and life-extension technology, serious policy decisions will be made at the national and international levels. The human right to science provides an ideal tool to do so, backed up as it is by international law, political heft, and normative weight. This book is the first sustained attempt at turning this wonder of foresight into an actionable and justiciable right. This title is also available as Open Access on Cambridge Core.

scholarly journals The Right of Intervention for the Protection of Nationals : Reassessing the Doctrinal Debate

2005 ◽  
Vol 30 (2) ◽  
pp. 441-493
Author(s):  
Jean Raby
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Order ◽  
Practical Reasons ◽  
The Past ◽  
International Legal Order ◽  
The Subject ◽  
The Right ◽  
International Law Commission ◽  
Self Defence

The legality of a forceful intervention by a state to protect its nationals has been the subject of a continuing controversy over the past 15 years. Many see it as an unlawful use of force prohibited by the Charter of the United Nations, others see it as a lawful exercice of a self-standing right recognized under contemporary international law, some finally claim it falls under the scope of self-defence. The author proposes not to restate that debate, but more to reassess it, examining and challenging some of the arguments raised on both sides of the question. Within that debate, it will be concluded that the international legal order does indeed recognize the validity of the use of force for such a purpose : if the avenue of self-defence is rejected, for conceptual as well as practical reasons, the right of intervention to protect nationals is indeed, for the author, part of the comtemporary international legal order. Then, the author wishes to broaden the debate and proposes another option, which has not been explored by scholars and publicists but which is found more satisfactory than any other approach : intervention to protect nationals can be justified under international law because of the existence, in a particular case, of a "state of necessity" as defined by the International Law Commission.

Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?

2005 ◽  
Vol 99 (1) ◽  
pp. 62-76 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
Terrorist Attacks ◽  
General Assembly ◽  
Advisory Opinion ◽  
United Nations General ◽  
Self Defense ◽  
The Icj ◽  
United Nations General Assembly ◽  
The Right ◽  
Self Defence

In October 2003, the Israeli permanent representative addressed the United Nations General Assembly on why Israel felt compelled to build a lengthy barrier spanning hundreds of kilometers across certain areas of the occupied West Bank of the Jordan River. Among other things, Ambassador Dan Gillernian stated: [A] security fence has proven itself to be one of the most effective non-violent methods lor preventing terrorism in the heart of civilian areas. The fence is a measure wholly consistent with the right of States to self-defence enshrined in Article 51 of the Charter. International law and Security Council resolutions, including resolutions 1368 (2001) and 1373 (2001), have clearly recognized the right of States to use force in self-defence against terrorist attacks, and therefore surely recognize the right to use non-forcible measures to that end.

The Chatham House Principles of International Law on the Use of Force in Self-Defence

2006 ◽  
Vol 55 (4) ◽  
pp. 963-972 ◽  
Author(s):  
Elizabeth Wilmshurst
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Secretary General ◽  
Weapons Of Mass Destruction ◽  
Military Force ◽  
Mass Destruction ◽  
The Right ◽  
High Level ◽  
Clear Statement ◽  
Self Defence

There are few more controversial questions in international law than the proper limits of the right of self-defence. The rules are being challenged in the light of what are seen as new threats from terrorism and from the possession of weapons of mass destruction. The UN High-level Panel, in its report to the Secretary-General of 2004, concluded that in all cases relating to decisions to use military force ‘we believe that the Charter of the United Nations, properly understood and applied, is equal to the task’.4 The Principles that follow are intended to provide a clear statement of the rules of international law ‘properly understood’ governing the use of force by states in self-defence.

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