Can Non-State Actors Mount an Armed Attack?

International Court ◽

State Practice ◽

State Actors ◽

Definition Of ◽

The Right

Article 2(4) of the UN Charter prohibits the use of force between States. In so doing, it addresses itself to a strictly interstate context and does not speak to the phenomenon of uses of force by non-state actors (NSAs). The question examined in this chapter is whether the exception to that prohibition—the right to use force in self-defence—is nevertheless responsive to the war-making capacity of NSAs. Otherwise put, is the definition of ‘armed attack’ in Article 51 of the UN Charter (and related customary international law) conditioned on the attacker being a state? In exploring this question, the chapter considers whether attribution is a necessary condition (in ratione personae terms) for the applicability of Article 51 by assessing the language of the Charter (including its travaux préparatoires), jurisprudence of the International Court of Justice, and state practice.

The invocation of the right to self-defence in response to armed attacks conducted by armed groups: Implications for attribution

Leiden Journal of International Law ◽

10.1017/s0922156518000560 ◽

2018 ◽

Vol 32 (01) ◽

pp. 91-110 ◽

Cited By ~ 2

Author(s):

Erika de Wet

Keyword(s):

Due Diligence ◽

Armed Groups ◽

Armed Attack ◽

International Court ◽

State Actors ◽

The Right ◽

United Nations Charter ◽

Territorial States ◽

Self Defence

AbstractThe right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within thejus ad bellumparadigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986Nicaraguadecision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.

States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

The Law and Practice of International Courts and Tribunals ◽

10.1163/15718034-12341439 ◽

2021 ◽

Vol 20 (1) ◽

pp. 54-76

Author(s):

Marco Longobardo

Keyword(s):

International Law ◽

State Responsibility ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

The Icj ◽

Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

International Organizations Law Review ◽

10.1163/15723747-2017002 ◽

2017 ◽

Vol 14 (2) ◽

pp. 227-253 ◽

Cited By ~ 1

Author(s):

Rossana Deplano, PhD

Keyword(s):

International Law ◽

International Organizations ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (I.C.J.)

International Legal Materials ◽

10.1017/ilm.2019.22 ◽

2019 ◽

Vol 58 (3) ◽

pp. 445-602

Author(s):

Stephen Allen

Keyword(s):

International Law ◽

Advisory Opinion ◽

The United Kingdom ◽

International Court ◽

Un General Assembly ◽

The Right ◽

Chagos Archipelago ◽

Legal Consequences

In its Chagos Advisory Opinion, the International Court of Justice (ICJ) addressed two questions posed in a request from the UN General Assembly. First, had Mauritius's decolonization been completed when it gained independence in 1968, after the excision of the Chagos Archipelago? Second, what were the legal consequences flowing from the United Kingdom's continued administration of the Archipelago? It was thought that the Court might shy away from giving an Opinion in this case as, arguably, it concerned a bilateral sovereignty dispute that the United Kingdom had not agreed to have resolved by judicial decision. However, as it turned out, the Court delivered surprisingly robust responses to the questions posed. The Opinion—and the numerous Separate Opinions that accompanied it—offer a thorough re-evaluation of the customary international law (CIL) concerning the right to self-determination in cases of decolonization.

Restrictivist Reasoning on theRatione PersonaeDimension of Armed Attacks in the Post 9/11 World

Leiden Journal of International Law ◽

10.1017/s0922156515000631 ◽

2016 ◽

Vol 29 (1) ◽

pp. 19-42 ◽

Cited By ~ 3

Author(s):

ANDRÉ DE HOOGH

Keyword(s):

International Law ◽

State Practice ◽

State Actors ◽

The Right ◽

Self Defence

AbstractThis contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.

3 The Third Element

The Discourse on Customary International Law ◽

10.1093/law/9780192843906.003.0003 ◽

2021 ◽

Author(s):

d'Aspremont Jean

Keyword(s):

International Law ◽

North Sea ◽

The Third ◽

The North ◽

International Court ◽

The North Sea ◽

Definition Of ◽

Constitutive Element

This chapter focuses on the norm-creating character of the standard whose customary status is tested as another possible constitutive element of customary international law. It examines the third constitutive element of customary international law, which is the common recognition by international law of the enormous definitional powers to the International Court of Justice when it comes to the custom-identification criteria. It also explores the discursive performance that consists of the constant turning of a blind eye to a specific claim made by the Court in the 1969 North Sea Continental Shelve. The chapter highlights the 1969 North Sea Continental Shelf wherein the Court confirmed the dualistic approach and the consciousness of having a duty may be in order to offer an articulate definition of opinio juris for the first time. It argues that the requirement that the standard whose customary status is tested must be norm-creating as it was prescribed by the Court in the North Sea Continental Shelfcase.

How to Limit Immunity of State Officials from Foreign Criminal Jurisdiction

How International Law Works in Times of Crisis ◽

10.1093/oso/9780198849667.003.0010 ◽

2019 ◽

pp. 146-170

Author(s):

Pavel Šturma

Keyword(s):

International Law ◽

Foreign Affairs ◽

Crimes Against Humanity ◽

Criminal Jurisdiction ◽

Head Of State ◽

International Court ◽

State Practice ◽

Head Of Government

This contribution aims to shed more light on the question whether international law on immunities is in crisis and, if so, how to overcome the crisis. It will not deal with all kinds of immunities under international law but will focus only on immunity of state officials. Immunity of state officials from foreign criminal jurisdiction is governed by customary international law whose exact scope is often debatable both in theory and in practice, particularly in connection with the international effort to end impunity for the most serious crimes under international law, such as genocide, war crimes, and crimes against humanity, including torture and enforced disappearances. Although state practice and case law of the International Court of Justice supports the absolute immunity ratione personae of the highest officials, such as head of state, head of government, and minister of foreign affairs, as long as they are in office, the situation of immunity ratione materiae that protects the official acts of other state officials seems to be less clear. There are good arguments in favour of exceptions to such immunity, at least in respect of crimes under international law.

The cetacean right to life revisited

International Journal of Law in Context ◽

10.1017/s1744552314000342 ◽

2015 ◽

Vol 11 (1) ◽

pp. 17-39

Author(s):

David Mence

Keyword(s):

International Law ◽

Scientific Evidence ◽

Moral Rights ◽

Legal Rights ◽

Right To Life ◽

Doctrinal Development ◽

International Court ◽

The Right

AbstractMany cetaceans are borderline persons and, as such, have a right to life. This is partly a normative and partly a positive legal claim. While many philosophers agree that cetaceans possess limited moral rights, it can also be shown that most states already behave as though they possess limited legal rights. The most basic of these, the right to life, reflects shifting contemporary norms – especially given scientific evidence as to cetacean sentience, intelligence and autonomy – and the consolidation of customary international law. The recent decision of the International Court of Justice in Whaling in the Antarctic (2014) includes importantobiter dictato this effect and arguably suggests an avenue for future doctrinal development in this area. Nevertheless, while the cetacean right to life already exists, there are a number of obstacles that preclude its enforcement. Perhaps the most significant of these remain the traditional status of the world's oceans as a global commons and the weak sovereignty of international law.

The Emergence of “Universal Jurisdiction” in Response to Somali Piracy: An Empirically Informed Critique of International Law’s “Paradigmatic” Universal Jurisdiction Crime

Chinese Journal of International Law ◽

10.1093/chinesejil/jmz025 ◽

2019 ◽

Vol 18 (3) ◽

pp. 551-643

Author(s):

Matthew Garrod

Keyword(s):

World War Ii ◽

International Law ◽

Universal Jurisdiction ◽

World War ◽

International Crimes ◽

Court Of Justice ◽

International Court ◽

State Practice

Abstract Since the 1980s, the idea that piracy is the “original” and “paradigmatic” universal jurisdiction crime in customary international law has been increasingly supported by weighty scholarship. In the wake of the unprecedented surge in Somali piracy, this view is gaining ground among various powerful actors in international law. Yet, remarkably little empirically grounded scholarship exists in support of universal jurisdiction. This Article provides the first comprehensive empirical analysis of state practice in response to Somali piracy in a ten-year period since 2006. Additionally, the data on Somali piracy are compared with the empirical findings of state practice regarding international crimes, which are more “heinous” than piracy, since the end of World War II to 2016. In so doing, this Article brings new insight and the first thorough critique of what most scholars, governments, the UN and even the International Court of Justice have said on universal jurisdiction, its purpose and the basis for it in international law. In view of inter-state tensions and conflict caused by universal jurisdiction and a move towards law codification, there is now a pressing need for a paradigm shift in the concept of universal jurisdiction for both piracy and international crimes, a step away from conventional scholarly accounts, and the grand narratives from which they proceed, to a position that has a solid basis in the actual practice of states. Empirically and historically informed, it is proposed that “universal jurisdiction” for both categories of crime provides a basis in international law permitting the exercise of national criminal jurisdiction over offences involving foreign nationals abroad that have a close nexus between the case over which jurisdiction is asserted and the state asserting jurisdiction. Common and traditionally held assumptions that universal jurisdiction is based solely on the grave nature of crimes and is applied by states absent any nexus to offences and in the interest of the international community are unfounded.

SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS

International and Comparative Law Quarterly ◽

10.1017/s0020589319000526 ◽

2019 ◽

Vol 69 (1) ◽

pp. 203-220

Author(s):

Stephen Allen

Keyword(s):

International Law ◽

Self Determination ◽

European Convention ◽

Advisory Opinion ◽

International Court ◽

The Uk ◽

The Right ◽

Chagos Archipelago

AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).