The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports

2016 ◽  
Author(s):  
Vaios Koutroulis
Keyword(s):  
International Relations ◽  
Use Of Force ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
Commissions Of Inquiry ◽  
State Actors ◽  
The Law ◽  
Fact Finding ◽  
The Right ◽  
Self Defence

This chapter examines the approach used by arbitral tribunals and commissions of inquiry or fact-finding missions with respect to rules governing the use of force after the adoption of the UN Charter in 1945, with emphasis on the right to self-defence and the conditions relating to its exercise. It assesses the legal significance of arbitral awards and fact-finding reports and considers how they have interpreted and applied jus contra bellum—the prohibition of the use of force in international relations and its exceptions. The chapter focuses on two significant arbitration precedents: the Eritrea Ethiopia Claims Commission and an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS). Finally, it discusses questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter, and whether such rules are applicable to non-state actors.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

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.

Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors

2007 ◽  
Vol 56 (1) ◽  
pp. 141-156 ◽  
Author(s):  
Kimberley N Trapp
Keyword(s):  
Democratic Republic ◽  
Use Of Force ◽  
International Community ◽  
International Court ◽  
State Actors ◽  
The Right ◽  
Self Defence

The International Court of Justice's decision inDRCvUgandatouches on, but fails to address, the circumstances under which a State has a right to use force in self-defence against non-State actors.1In particular, the Court holds that, because the attacks carried out by anti-Ugandan rebels operating from the Democratic Republic of Congo's (DRC) territory are not attributable to the DRC, Uganda has no right to use force in self-defenceagainst theDRC.2The separate opinions inDRC v Ugandalament the Court's failure to take the opportunity to address the right to act in self-defence against non-State actors3–an issue of such obvious importance to the international community in an age of terrorism. As will be examined below, there are arguably good reasons–on the facts of the case–for the Court's refusal to pronounce itself on the matter. Furthermore, its decision need not be read as absolutely precluding a use of force in foreign territory in response to armed attacks by non-State actors.

The Fight against isil in Syria. Comments on the Recent Discussion of the Right of Self-defence against Non-state Actors

2018 ◽  
Vol 87 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Marja Lehto
Keyword(s):  
Legal Theory ◽  
State Violence ◽  
Recent Discussion ◽  
Fertile Ground ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Silver Bullet ◽  
Self Defence

The legal debate on self-defence against non-state actors is still inconclusive after two decades. At the same time, it has created a fertile ground for attempts to find a silver bullet: a new legal theory that could bridge the conceptual gap between the law of the un Charter and the expanded notion of self-defence. The article gives an overview of the legal rationales presented in relation to the fight against isil in Syria as well as scholarly comments, focusing on the emerging doctrine of ‘unwilling or unable’. It argues that the ‘unwilling or unable’ test has little to offer as a solution to the problem of responding to massive non-state violence. It does not amount to a coherent doctrine, and is in many respects at odds with established interpretations of law. The apparent simplicity of the ‘unwilling or unable test’ may be politically attractive but makes it open to abuse.

The Implications of the Proliferation of Weapons of Mass Destruction for the Prohibition of the Use of Force

2016 ◽  
Author(s):  
Daniel Joyner
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Weapons Of Mass Destruction ◽  
Mass Destruction ◽  
Policy Positions ◽  
Regional Conflicts ◽  
The Us ◽  
State Actors ◽  
The Law ◽  
Self Defence

This chapter examines the proliferation of weapons of mass destruction (WMD) between states and non-state actors and its implications for international law governing the use of force. It considers whether WMD proliferation and changes in security realities have brought a crisis in international law on the use of force and discusses the use of pre-emptive force for preventing states and non-state actors ‘of concern’ from developing and using WMD. It analyses the shift in the policy positions of the US and other relatively powerful states, from more multilateral and diplomacy-based ‘non-proliferation’ to increased emphasis on proactive and often unilateral or small-coalition-based ‘counterproliferation’. It looks at concerns that several states will be emboldened to apply the doctrine of counterproliferation-oriented pre-emption to their regional conflicts. Finally, it evaluates proposals to reform the provisions and procedures of the UN Charter system for regulating the use of force, including the law on self-defence.

20. The Use of Force and the International Legal Order

2018 ◽  
Author(s):  
Christine Gray
Keyword(s):  
Civil Wars ◽  
Use Of Force ◽  
Legal Order ◽  
Terrorist Attacks ◽  
Un Peacekeeping ◽  
International Legal Order ◽  
The Law ◽  
The Right ◽  
Self Defence

This chapter examines the law on the use of force. It discusses the UN Charter scheme; the Prohibition of the Use of Force in Article 2(4) of the UN Charter; intervention, civil wars, and invitation; self-defence; the use of force under Chapter VII of the UN Charter; UN peacekeeping; and regional action under Chapter VIII of the UN Charter. The UN Charter provisions on the use of force by States, Article 2(4) on the prohibition of force, and Article 51 on self-defence, have all caused fundamental divisions between States. There is disagreement as to whether the prohibition on force should be interpreted strictly or whether it allows humanitarian intervention, as in Kosovo. There is also disagreement over the scope of the right of self-defence. The response to the 9/11 terrorist attacks has led to a fundamental reappraisal of the law in this area.

scholarly journals Use of Force against Non-state Actors and the Circumstance Precluding Wrongfulness of Self-Defence

2016 ◽  
Vol 30 (1) ◽  
pp. 93-115 ◽  
Author(s):  
FEDERICA I. PADDEU
Keyword(s):  
Use Of Force ◽  
The Self ◽  
Due Diligence ◽  
Host State ◽  
Positive Law ◽  
Legal Justification ◽  
State Actors ◽  
The Right ◽  
To Receive ◽  
Self Defence

AbstractThe right of self-defence against non-state actors is increasingly invoked and accepted in the practice of states. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host state, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, states invoking self-defence against non-state actors rely on the involvement of the host state with those actors to justify the use of force in that state's territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host state's due diligence obligation to protect the rights of other states in its territory. All of these solutions are deficient in some way, and have failed to receive general endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non-state actors.

No Thank You to a Radical Rewrite of the Jus ad Bellum

2013 ◽  
Vol 107 (2) ◽  
pp. 386-390 ◽  
Author(s):  
Gabor Rona ◽  
Raha Wala
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Due Process ◽  
Use Of Force ◽  
Right To Life ◽  
Legal Scholarship ◽  
Jus Ad Bellum ◽  
The Law ◽  
The Right

Just as a newspaper must separate its reporting from its editorials, legal scholarship must distinguish between representations of what the law is and what the author might like it to be. Daniel Bethlehem’s proposed principles and his arguments in support of them are an amalgam of the two that, if actualized under international law, would reverse more than a century of humanitarian and human rights progress: they would undermine the general prohibition against the use of force in international relations as well as the right to life and the scope of a state’s obligation of due process in the deprivation of life.

scholarly journals SELF-DEFENCE AGAINST NON-STATE ACTORS: ARE POWERFUL STATES WILLING BUT UNABLE TO CHANGE INTERNATIONAL LAW?

2017 ◽  
Vol 67 (2) ◽  
pp. 263-286 ◽  
Author(s):  
Jutta Brunnée ◽  
Stephen J Toope
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
World Politics ◽  
Customary Law ◽  
Current State ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractCan a few primarily Western States expand the right to self-defence against non-State actors, incorporating the unwilling or unable standard? Even on a traditional reading of customary law formation, the answer is no because proponents have failed to attract consistent and widespread support. What is more, using our interactional international law approach, we show that efforts to date have not been successful because they have failed to address fundamental rule of law concerns. The current state of world politics has perhaps caught proponents of the unwilling or unable standard in a difficult bind. We suggest how proponents might carefully develop the law on self-defence against non-State actors.

scholarly journals The Navigational Rights of Nuclear Ships

2002 ◽  
Vol 15 (1) ◽  
pp. 251-265
Author(s):  
Marco Roscini
Keyword(s):  
Law Of The Sea ◽  
Radioactive Materials ◽  
The Law ◽  
The Right

Even though Article 23 of the 1982 Convention on the Law of the Sea explicitly acknowledges the right of innocent passage through the territorial sea to nuclear vessels, many coastal states have recently forbidden or submitted to authorization the passage of ships carrying radioactive materials: this reveals a trend towards a more restrictive concept of “innocent passage.” As to straits used for international navigation and archipelagic sea lanes, the ius communicationis is still prominent and every measure that might prejudice the navigational rights of nuclear ships would not be consistent with the Montego Bay Convention.

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