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 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.

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 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.

Some Thoughts on the NATO Position in Relation to the Iraqi Crisis

2004 ◽  
Vol 17 (1) ◽  
pp. 171-183 ◽  
Author(s):  
CONSTANTINE ANTONOPOULOS
Keyword(s):  
Decision Making ◽  
Cold War ◽  
National Policy ◽  
Eastern Bloc ◽  
Weapons Of Mass Destruction ◽  
Decision Making Process ◽  
Mass Destruction ◽  
Un Security Council ◽  
The Cold War ◽  
East West

NATO is a collective self-defence regional organization that was established at the time of the Cold War, and the end of East–West confrontation gave rise to the debate about its future role. In the 1999 Washington summit a new strategic concept was promulgated, according to which NATO was to act as a collective security organization as well. The community of interest previously represented by the Eastern bloc has not been unequivocally replaced by a new one. Hence there is room for national interest to play greater role in the decision-making by the alliance. This decision-making is based on consensus, which is incompatible with assertions of strictly national policy. The institutional crisis within NATO in early 2003 was largely due to the transfer to within NATO of the disagreement among its member states in the UN Security Council over dealing with Iraq's alleged weapons of mass destruction. The crisis was ultimately resolved, but it exposed the serious limitations of the NATO decision-making process. While claims about the likelihood of NATO's survival seem premature, the recent institutional crisis may be a legitimate ground for considering institutional reform.

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.

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

The Resilience of the Restrictive Rules on Self-Defence

2016 ◽  
Author(s):  
Joerg Kammerhofer
Keyword(s):  
International Law ◽  
Customary Law ◽  
International Court Of Justice ◽  
Institutional Practice ◽  
Jus Ad Bellum ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Law ◽  
Self Defence

This chapter examines the resilience of the treaty, and perhaps also customary, law on self-defence since 2001. It first considers ‘resilience’ in the context of the jus ad bellum and how law can be resilient vis-à-vis changing circumstance, opinions, interpretation, and state practice. It then looks at the indicators for and against resilience by analysing post-2001 developments, paying particular attention to three areas: jurisprudence, scholarly literature in international law, and state and institutional practice. The chapter also explains what ‘resilience’ can and cannot be, and how the law and its perceptions change—or remain the same. Two avenues on the question of what is resilient are evaluated: either the norm or its interpretation (perception) change. Finally, the chapter considers a number of cases in which the International Court of Justice has made pronouncements on and partial clarifications of important aspects of the law on self-defence since 2001.

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