Action Against Host States of Terrorist Groups

Court Of Justice ◽

International Court ◽

Terrorist Groups ◽

The Icj ◽

This chapter examines the problems that could arise when a state invokes self-defence to justify action against terrorist groups in another state. It first considers indirect armed attack against armed groups and the controversy surrounding the use of self-defence where armed groups are controlled by a foreign state, with particular reference to the International Court of Justice (ICJ) jurisprudence. It then discusses the possibility that an armed attack could occur, permitting a forcible response in the context of international law, without attribution to a state by citing the Nicaragua case in which the ICJ pronounced that self-defence is permissible against a host state in effective control of an armed group. The chapter also looks at the case of Afghanistan and its relationship to Al Qaeda as an example of a state’s claims of self-defence against terrorism.

EXAMINING THE INTERNATIONAL LAW RIGHT OF SELF-DEFENCE: THE CASE OF RUSSIA AND GEORGIA; ISRAEL AND GAZA

Obiter ◽

10.17159/obiter.v31i2.12364 ◽

2021 ◽

Vol 31 (2) ◽

Author(s):

FT Abioye

Keyword(s):

International Law ◽

Use Of Force ◽

International Peace ◽

Armed Attack ◽

Oil Platforms ◽

Court Of Justice ◽

International Court ◽

Recent Developments ◽

Article 2(4) of the UN Charter establishes the doctrine of the prohibition of the use of force amongst member states of the UN. Article 51 lays down exceptions to this rule in terms of the fact that there can be an individual and/or collective use of force in self-defence in the case of an armed attack. This individual or collective use of force is permitted to continue until such a time as the Security Council takes such actions as are necessary for the maintenance of international peace and security. The International Court of Justice (ICJ) has further confirmed this prohibition of the use of force in the Nicaragua case, Congo v Uganda and Oil Platforms cases. This area ofinternational law has seen a lot of discussions and developments over the years. The purpose of this article is to examine the efficacy of the use of force between Russia and Georgia; and Israel and Gaza in 2008. It would be examined if these armed attacks are justifiable by the doctrine of self-defence and the recent developments in the field in international law, or if they in fact constitute a breach of the international law prohibition on the use of force.

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 ◽

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 ◽

Customary International Law ◽

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.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

Leiden Journal of International Law ◽

10.1017/s0922156514000053 ◽

2014 ◽

Vol 27 (2) ◽

pp. 309-330

Author(s):

GEOFFREY GORDON

Keyword(s):

International Law ◽

International Community ◽

Public Order ◽

Court Of Justice ◽

International Court ◽

The Icj ◽

Dialectical Process ◽

The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

The International Court of Justice During the Battle for International Law (1955–1975)

The Battle for International Law ◽

10.1093/oso/9780198849636.003.0011 ◽

2019 ◽

pp. 235-256

Author(s):

Ingo Venzke

Keyword(s):

West Africa ◽

International Law ◽

Court Of Justice ◽

International Court ◽

The Icj ◽

Independent States ◽

South West Africa ◽

Newly Independent States

This chapter investigates the role of the International Court of Justice (ICJ) during the battle for international law circa the years of 1955–1975. It first draws attention to newly independent states that saw the Court in its role of reinforcing international law’s colonial imprints. The chapter then focuses on the Court’s captivating highpoint during the battle for international law: its 1962 and 1966 Judgments in South West Africa, and the jarring 1966 decision which, in the eyes of many states, presented the ICJ as a ‘white man’s court’ in a white man’s world. The chapter then shows the effects of the 1966 decision in judicial elections and the quest to change the composition of the bench. Finally, the chapter argues that the present inquiry serves as a vivid reminder that international law and its institutions are the product of a veritable struggle, then as now.

A Note on the ICJ Advisory Opinion on Kosovo

German Law Journal ◽

10.1017/s2071832200018885 ◽

2010 ◽

Vol 11 (7-8) ◽

pp. 867-880 ◽

Cited By ~ 5

Author(s):

Robert Muharremi

Keyword(s):

United Nations ◽

International Law ◽

General Assembly ◽

Advisory Opinion ◽

Declaration Of Independence ◽

Court Of Justice ◽

International Court ◽

Unilateral Declaration ◽

The Icj

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

House Approves Proposal Permitting ICJ to Advise Domestic Courts

The American Journal of International Law ◽

10.2307/2200866 ◽

1983 ◽

Vol 77 (2) ◽

pp. 338-340

Author(s):

Jack M. Goldklang

Keyword(s):

International Law ◽

House Of Representatives ◽

National Court ◽

Advisory Opinion ◽

Court Of Justice ◽

International Court ◽

Domestic Courts ◽

The Icj ◽

Advisory Opinions

On December 17, 1982, the House of Representatives adopted a resolution supporting an expansion of the advisory opinion jurisdiction of the International Court of Justice. The resolution (H.R. Con. Res. 86) urges the President to explore the appropriateness of establishing a United Nations committee to seek advisory opinions from the ICJ. The committee would act when asked by a national court seeking advice regarding any international law question under the national court’s jurisdiction.

II. INTERNATIONAL COURT OF JUSTICE: QUESTIONS RELATING TO THE OBLIGATION TO EXTRADITE OR PROSECUTE (BELGIUM v SENEGAL) JUDGMENT OF 20 JULY 2012

International and Comparative Law Quarterly ◽

10.1017/s0020589313000250 ◽

2013 ◽

Vol 62 (3) ◽

pp. 753-769 ◽

Cited By ~ 2

Author(s):

Mads Andenas ◽

Thomas Weatherall

Keyword(s):

Human Rights ◽

International Law ◽

Universal Jurisdiction ◽

Court Of Justice ◽

International Court ◽

The Icj ◽

Jus Cogens ◽

Heads Of State ◽

Peremptory Norms

This case1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

The Resilience of the Restrictive Rules on Self-Defence

10.1093/law/9780199673049.003.0028 ◽

2016 ◽

Cited By ~ 1

Author(s):

Joerg Kammerhofer

Keyword(s):

International Law ◽

Customary Law ◽

Institutional Practice ◽

Jus Ad Bellum ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

The Law ◽

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.

I. INTERNATIONAL COURT OF JUSTICE, ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO, ADVISORY OPINION OF 22 JULY 2010

International and Comparative Law Quarterly ◽

10.1017/s0020589311000340 ◽

2011 ◽

Vol 60 (3) ◽

pp. 799-810 ◽

Cited By ~ 2

Author(s):

Dov Jacobs

Keyword(s):

United Nations ◽

International Law ◽

General Assembly ◽

Advisory Opinion ◽

Declaration Of Independence ◽

Court Of Justice ◽

International Court ◽

Unilateral Declaration ◽

The Icj

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.