Necessity

Court Of Justice ◽

International Court ◽

State Practice ◽

Methodological Problems ◽

International Law Commission ◽

This chapter examines the doctrine of necessity as an element of the prohibition of the use of force and as a subsidiary condition of the legality of self-defence. It begins by discussing the thesis of necessity as a general justification of the use of force within the context of the international law of responsibility. It then analyses necessity as a condition enshrined in self-defence and in the United Nations collective security system. The chapter also considers the methodological problems that arise from any interpretation of the concept of necessity, especially with respect to the use of force. It highlights the fact that the International Law Commission, the International Court of Justice, and state practice have never recognized necessity as a general justification to use force.

The Resilience of the Restrictive Rules on Self-Defence

10.1093/law/9780199673049.003.0028 ◽

2016 ◽

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.

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 ◽

Author(s):

Rossana Deplano, PhD

Keyword(s):

International Law ◽

International Organizations ◽

Customary International Law ◽

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.

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.

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.

The Inter-active Influence of the International Court of Justice and the International Law Commission

10.1163/9789004482517_037 ◽

2000 ◽

pp. 479-505

Keyword(s):

International Law ◽

Court Of Justice ◽

International Court ◽

International Law Commission ◽

Law Commission

Rescuing Nationals Abroad

10.1093/law/9780199673049.003.0045 ◽

2016 ◽

Author(s):

Mathias Forteau

Keyword(s):

International Law ◽

Use Of Force ◽

Humanitarian Assistance ◽

Current Position ◽

Court Of Justice ◽

International Court ◽

Legal Perspective ◽

Legal Nature ◽

Definition Of

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 to rescue its nationals abroad when their lives or security are threatened. It first considers the definition of the phrase ‘rescuing nationals abroad’ and the legal scope and legal nature of the justification based on the necessity of carrying out such an act. It analyses the opinion of the International Court of Justice concerning the matter before assessing the current position of international law on the permissibility of rescuing nationals abroad. It also discusses whether the use of force to rescue nationals abroad can be invoked for humanitarian assistance purposes involving non-nationals. The chapter shows that the notion of ‘rescuing nationals abroad’ is ambiguous from a legal perspective and that the legality of using force to rescue nationals abroad has remained unclear since 1945.

Action Against Host States of Terrorist Groups

10.1093/law/9780199673049.003.0033 ◽

2016 ◽

Author(s):

Lindsay Moir

Keyword(s):

International Law ◽

Effective Control ◽

Armed Groups ◽

Armed Attack ◽

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.

The Ban on the Use of Force in the UN Charter

10.1093/law/9780199673049.003.0022 ◽

2016 ◽

Author(s):

Nico Schrijver

Keyword(s):

International Relations ◽

International Law ◽

Legal Status ◽

Use Of Force ◽

The Other ◽

General Assembly ◽

Court Of Justice ◽

International Court ◽

History Of

This chapter focuses on Article 2(4) of the UN Charter, which prohibits the use of force in international relations. After discussing pre-Charter attempts to restrict states’ freedom to resort to warfare, it examines the emergence of a normative doctrine on a bellum justum. It considers the history of Article 2(4) and the other articles of the Charter that touch on the use of force and outlines exceptions to the prohibition on the use of force, including the so-called Uniting for Peace procedure. It examines the interpretation of Article 2(4) in the practice of the General Assembly, Security Council, and International Court of Justice), together with its inclusion in a number of multilateral treaties. Finally, it assesses the question whether the use of force after 1945 conforms to the object and purpose of Article 2(4), as well as the legal status of the prohibition to use force in contemporary international law.

The Contribution of the International Court of Justice to the Law on the Use of Force: Missed Opportunities or Unrealistic Expectations?

Nordic Journal of International Law ◽

10.1163/090273509x12450761266339 ◽

2009 ◽

Vol 78 (3) ◽

pp. 361-396 ◽

Author(s):

David McKeever

Keyword(s):

International Law ◽

Use Of Force ◽

Legal Regime ◽

Missed Opportunities ◽

Court Of Justice ◽

Legal Questions ◽

International Court ◽

The Law ◽

Unrealistic Expectations

AbstractIn recent years, the International Court of Justice has been presented with opportunities to pronounce on important dimensions of the law on the use of force. An assessment of the court's handling of these issues must consider first the role attributed to the Court within the international legal regime for preventing and mitigating the use of force, and thus what exactly would amount to 'success' for the Court in such cases. Notwithstanding the inherent limitations on the Court's capacity in this area, this article argues that the Court has largely failed to provide clear guidance on pressing legal questions. An unwarranted caution in utilising the judicial tools at its disposal is one important factor in this regard. Finally, this article highlights some potential consequences of the Court's recent work for the development of international law on the use of force.

The Completeness of International Law and Hamlet's Dilemma

Nordic Journal of International Law ◽

10.1163/15718109920296000 ◽

1999 ◽

Vol 68 (3) ◽

pp. 225-247 ◽

Author(s):

◽

Keyword(s):

International Law ◽

Nuclear Weapons ◽

A Priori ◽

Advisory Opinion ◽

Public International Law ◽

Current State ◽

Court Of Justice ◽

International Court ◽

AbstractThe aim of this paper is to examine whether the possibility of a genuine non liquet is ruled out by a so-called ‘closing rule’underlying public international law. The answer to this question largely determines the relevance of the debate on the legality and legitimacy of the pronouncement of a non liquet by an international court. This debate was recently provoked by the Advisory Opinion of the International Court of Justice on the Legality of the Threat and Use of Nuclear Weapons. In this opinion, the Court held that it could not definitively conclude whether the threat or use of nuclear weapons was contrary to international law in an extreme circumstance of self-defence in which the survival of a state is at stake. Nevertheless, some authors have argued that, since international law contains a closing rule stating that the absence of a prohibition is equivalent to the existence of a permission (or vice versa), the Court had in fact decided the legality of nuclear weapons. By virtue of this closing rule, the pronouncement of a non liquet would be impossible. In our analysis, we have taken issue with this view and claim that there are no a priori reasons for the acceptance of a closing rule underlying international law. It is possible indeed that a legal system is simply indifferent towards a certain type of conduct. Moreover, even if a closing rule would be assumed, this rule would be of no help in determining the legality or illegality of the threat and use of nuclear weapons, since the Court asserted that the current state of international law and the facts at its disposal were insufficient to enable it to reach a definitive conclusion. Nothing follows from this assertion, except the assurance that international law cannot definitively settle the question of the legality of the threat or use of nuclear weapons: to be permitted or not to be permitted, that is still the question. Hamlet's dilemma precisely.