Taming the Doctrine of Pre-Emption

2016 ◽  
Author(s):  
Ashley Deeks
Keyword(s):  
International Law ◽  
Cyber Attacks ◽  
Weapons Of Mass Destruction ◽  
Armed Attack ◽  
Mass Destruction ◽  
Technological Factors ◽  
Jus Ad Bellum ◽  
The Future ◽  
Self Defence

This chapter examines one of the most contentious issues in the jus ad bellum: whether and when international law permits a state to use force unilaterally before it suffers an armed attack. More specifically, it considers whether pre-emption needs to be tamed. The discussion begins by sorting through the terminology used by states and scholars with respect to acts of self-defence in advance of an attack, with particular reference to three different terms: anticipatory self-defence, pre-emptive self-defence, and preventive self-defence. The chapter then outlines the basic positions in the historical debate about the legality of such self-defence before turning to three geopolitical and technological factors that put pressure on the doctrine of pre-attack self-defence: weapons of mass destruction, terrorism, and cyber attacks. Finally, it evaluates the future of pre-emption, with emphasis on changes in the timing of a state’s right to use force in self-defence.

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.

scholarly journals The Baltic states should adopt the self-defence pinpricks doctrine: the “accumulation of events” threshold as a deterrent to Russian hybrid warfare

2017 ◽  
Vol 3 (1) ◽  
pp. 11-24
Author(s):  
Philippe Bou Nader
Keyword(s):  
International Law ◽  
Armed Attack ◽  
Hybrid Warfare ◽  
Policy Makers ◽  
Jus Ad Bellum ◽  
Military Tactics ◽  
Political Intervention ◽  
The Baltic ◽  
Actual Policy ◽  
Self Defence

AbstractThis article addresses a key legal debate that the Baltic NATO members ought to engage in: what constitutes an “armed attack” and what interpretation should be made of this concept in order to deter recent Russian hybrid warfare strategies. These questions are considered in connection with a more general issue regarding the law of self-defence: the question of what constitutes an armed attack in international law. This article will try to present a broad definition and context of Russian hybrid warfare and how it is challenging traditional jus ad bellum paradigms. Too few policy-makers have paid detailed attention to the new Russian “lawfare” in Ukraine, using specific military and non-military tactics in order to blur the lines between “armed attack” and mere political intervention. Meanwhile, legal scholars detach their analysis from actual policy-serving considerations and tend to acquiesce to some very restrictive theories of the use force in self-defence. For some countries, like the Baltic ones, facing strategic exposure – because of both threatening neighbours and low military capacities – the jus ad bellum paradigm should not be construed as another layer of obstacle.

scholarly journals The Problem of Imminence in an Uncertain World

2016 ◽  
Author(s):  
Noam Lubell
Keyword(s):  
Decision Making ◽  
International Law ◽  
Weapons Of Mass Destruction ◽  
Decision Making Process ◽  
Mass Destruction ◽  
Specific Context ◽  
New Approaches ◽  
State Practice ◽  
Self Defence

This chapter deals with the concept of imminence within the context of anticipatory self-defence under international law. It examines the meaning of imminence, its interpretation, what it might justify and/or exclude, and whether it can be upheld as a criterion to face modern challenges. It outlines the requirement of imminence in relation to the debatable right to anticipatory self-defence, paying particular attention to the development of state practice and the opinions of commentators. It considers the specific context of terrorism and weapons of mass destruction, and examines the reasons that these are sometimes seen as necessitating a new conception of imminence. The chapter provides an analysis of what new approaches might mean, and whether they can be contained within an understanding of imminence. In so doing, the chapter analyses the notion of certainty, the need for evidence, and the effect of the scale of threat on the decision-making process.

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.

scholarly journals Cyber Warfare and Self - Defense from the Perspective of International Law

2017 ◽  
Vol 10 (4) ◽  
pp. 40 ◽  
Author(s):  
Nazanin Baradaran ◽  
Homayoun Habibi
Keyword(s):  
International Law ◽  
Critical Infrastructure ◽  
Cyber Attacks ◽  
The Other ◽  
Cyber Warfare ◽  
Attribution Of Responsibility ◽  
Armed Attack ◽  
Jus Ad Bellum ◽  
Self Defense ◽  
The Right

Cyber warfare represents new kinds of weapons in the present era that have the potential to change the battlefields. The different nature of these types of weapons and their ability to create massive and widespread damage to critical infrastructure of a state, subject the traditional means of resort to force to change and is indicative of the importance that the international community must come to some consensus on the meaning of cyber warfare with in the existing jus ad bellum paradigm and legislate its governing rules, On the other hand, the inherent rights of victim states in self-defense must be supported and by detailed explanations of the governing rules for the method of attribution of responsibility to governments committing cyber-attacks, actions must be taken to prevent escape of these governments from the consequences of their illegal actions. In fact, in this article with an analytical method we will examine the issue of whether cyber attacks could be considered as an armed attack trigger the right to self defense for victim states.

Safety in the Air: Air Carriers' Rights and Responsibilities at National and International Law

2003 ◽  
Vol 32 (3) ◽  
pp. 275-303
Author(s):  
Ruwantissa Abeyratne
Keyword(s):  
International Law ◽  
Weapons Of Mass Destruction ◽  
Mass Destruction ◽  
Passenger Screening ◽  
Air Transport Industry ◽  
Potential Offender ◽  
Air Disaster ◽  
Machine Readable ◽  
Air Carriers ◽  
Legal Consequences

Several air disasters involving loss of lives of passengers and others on the ground have illustrated the key role expected of airlines in ensuring the security of aircraft and the safety of those affected by the contract of carriage by air. The culmination of these expectations came immediately after 11 September 2001 when aircraft were used as weapons of mass destruction against passengers of the aircraft concerned and those on the ground. Sustained debate followed between the air transport industry and regulators as to whether airlines could justifiably be expected to bear full responsibility for the safety of those on board and on the ground who may be affected by an air disaster. The international community now recognizes that the airlines have to bear some responsibility in the decision-making process regarding persons boarding their aircraft. Modern techniques for passenger screening include the use of machine readable travel documents (MRTDs) and advance passenger information (API). In addition, the practice of passenger profiling is not uncommon among some carriers who cooperate with customs and immigration authorities to identify possible offenders, with a view to preventing them from boarding their aircraft. The process of refusal to board, however, may entail legal consequences, particularly in the context of the contract which has already passed between the air carrier and passenger prior to boarding. Although usually a contract can be frustrated thus affecting the performance of that contract, the instance of a potential offender is unique in that refusal of carriage is based on conjecture rather than empirical evidence. This article examines this issue with a focus on developments in some European and United States jurisdictions.

scholarly journals Analysis and prospect of China's contemporary anti-terrorism intelligence perception

2021 ◽  
Vol 336 ◽  
pp. 09027
Author(s):  
Huijie Zheng ◽  
Zhenxing Chang ◽  
Hezi Liu ◽  
Yu Zhu
Keyword(s):  
Future Development ◽  
Social Life ◽  
Weapons Of Mass Destruction ◽  
Mass Destruction ◽  
The Future

New types of weapons of mass destruction are still being developed continuously at a time when traditional violent and terrorist activities such as explosions, hijackings, and hacking are increasingly rampant. In order to prevent major losses caused by terrorist activities and bring chaos to the order of social life, the importance of obtaining terrorist intelligence is increasing. This paper analyzes China’s deficiencies in intelligence perception and monitoring through collation, and summarizes the progress in the corresponding areas, and puts forward some of its own prospects for the future development of intelligence perception in China.

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.

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