Necessity and Proportionality and the Right of Self-Defence in International Law

Defensive Action ◽

The Right ◽

Conceptual Meaning ◽

States invariably justify using force extraterritorially by reference to their inherent right of self-defence. In so doing, they accept that the exercise of such right is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement renders ostensibly defensive action unlawful, increased determinacy regarding their scope and content is crucial to how international law constrains military force. This book examines the conceptual meaning, substance and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter in 1945. It provides a coherent and up-to-date description of the applicable contemporary international law and proposes an analytical framework to guide its operation and appraisal. This book contends that necessity and proportionality are conceptually distinct and must be applied in the foregoing order to avoid an insufficient ‘catch-all’ description of (il)legality. Necessity determines whether defensive force may be used to respond to an armed attack and where it must be directed. Proportionality governs how much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security.

Hot Pursuit

10.1093/law/9780199673049.003.0042 ◽

2016 ◽

Author(s):

Bill Gilmore

Keyword(s):

Law Enforcement ◽

International Law ◽

Use Of Force ◽

The State ◽

Law Of The Sea ◽

Cross Border ◽

Legal Justification ◽

The Right ◽

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

Frontiers of International Law, Part One: The Chechen People, Continued

Leiden Journal of International Law ◽

10.1017/s0922156597220029 ◽

1997 ◽

Vol 10 (1) ◽

pp. 16-20

Author(s):

René Lefeber ◽

David Raič

Keyword(s):

Human Rights ◽

International Law ◽

Self Determination ◽

Military Force ◽

Right To Life ◽

Parent State ◽

The People ◽

The Law ◽

The Right

We agree with André de Hoogh that the Chechens did not possess a right to external self-determination prior to the massive indiscriminate use oi military force by Russia in December 1994. At no point have we argued or suggested otherwise. Hence, up to December 1994, the Chechen claim did indeed not meet the conditions set by paragraph seven of the Friendly Relations Declaration. However, the Friendly Relations Declaration needs to be interpreted in view of usus and opinio iuris. In other words, one has to analyse how this paragraph has developed in customary international law. According to our analysis of the law of self-determination, the emergence of a right to external self-determination depends on two cumulative conditions, viz. 1) the serious and persistent violation of the right to internal self-determination and 2) the exhaustion of all total and international peaceful remedies by the people concerned to effectuate its right to internal self-determination. These conditions must be deemed fulfilled if the parent state seriously and massively violates the fundamental human rights and freedoms – in particular by an arbitrary violation of the right to life – of the persons belonging to the people concerned.

The Chatham House Principles of International Law on the Use of Force in Self-Defence

International and Comparative Law Quarterly ◽

10.1093/iclq/lei137 ◽

2006 ◽

Vol 55 (4) ◽

pp. 963-972 ◽

Cited By ~ 16

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 ◽

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.

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 ◽

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.

The Legality and Legitimacy of Unilateral Armed Intervention in an Age of Terror, Neo-Imperialism, and Massive Violations of Human Rights: Is International Law Evolving in the Right Direction?

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800008481 ◽

2005 ◽

Vol 42 ◽

pp. 3-33

Author(s):

J.-G. Castel

Keyword(s):

Human Rights ◽

International Law ◽

Security Council ◽

The United States ◽

Human Right ◽

Bush Doctrine ◽

The Right ◽

Armed Intervention ◽

SummaryWith the end of the Cold War, the United States has emerged as the sole remaining superpower whose ambition is to create a new open and integrated world order based on principks of democratic capitalism. To ensure its hegemony, the United States is prepared to resort to military action with or without UN approval when its international and national security interests are at stake. The intervention in Iraq by the Coalition of the Willing is a good example of this policy and raises the question of its legality and legitimacy under contemporary international law. May or must a state resort to military intervention against a state sponsoring terrorism or depriving its nationals of their internationally recognized human rights? The so-called “Bush doctrine” of anticipatory or preventive self-defence against a state accused of supplying weapons of mass destruction to a foreign terrorist organization, which was one of the reasons advanced by the Coalition of the Willing for intervening in Iraq, meets neither the conditions laid out in Article 51 of the UN Charter nor those of customary international law. Thus, at the present stage of development of international law, the Bush doctrine is not even lege ferenda. It is not an extension of the customary international law right of pre-emptive self-defence. Only with the approval of the Security Council pursuant to Chapter VII of the UN Charter or when it takes place within the strict confines of self-defence, can armed intervention be legitimate.The second reason for intervening in Iraq given by the Coalition of the Willing is based on humanitarian considerations, which raises the question whether the protection of human rights can be assured from the outside. Here, international law is evolving in the right direction since the international community is prepared to adopt the concept of responsibility to protect, which justifies the use of force to protect and enforce human rights as an exception to Article 2(4) and (7) of the UN Charter. Again, such intervention is legal only when approved by the Security Council acting pursuant to Chapter VII on the ground that human right crises do not fall “essentially within the jurisdiction of any state.” However, the international community, with the exception of the Coalition of the Willing, is not yet prepared to support a right of unilateral military intervention as a last resort when the Security Council is incapable and unwilling to do so. This includes intervention motivated by the non-democratic form of government of the targeted state. Although the primary responsibility to deal with human right crises rests with the United Nations based on the responsibility to protect, it is argued that one should not rule out unilateral military action based on a customary international law right of intervention to meet the gravity and urgency of the situation provided the intervening state fully observes the necessary precautionary principles governing such type of intervention. The conclusion is that terrorism and human rights abuses can only be effectively challenged through a concerted multilateral collective approach not through the politics of unilateralism.

Self-defence against Armed Attacks by Non-State Actors

Chinese Journal of International Law ◽

10.1093/chinesejil/jmz037 ◽

2019 ◽

Vol 18 (4) ◽

pp. 751-775

Author(s):

Rein Müllerson

Keyword(s):

International Law ◽

Military Force ◽

International Organisations ◽

Territorial State ◽

Defensive Responses ◽

State Actors ◽

Abstract Armed attacks in the sense of Article 51 and customary international law can be carried out not only by States, but also by non-State actors (NSA). Self-defensive responses to attacks by NSAs, due to their specific characteristics, may contain a combination of elements of anticipatory self-defence and defensive reprisals. If a State, from the territory of which an attack originates, is unable to prevent an NSA attacking a third State, it has to ask for and to accept the assistance of the victim State, other States, or relevant international organisations. The latter cannot use military force in self-defence in such circumstances without having first sought the consent of the territorial State. However, if a State is unwilling to prevent an NSA, operating from its territory, from attacking third States, it becomes an accessory-after-the-fact to armed attacks of the NSA. Self-defensive, either individual or collective, measures can be carried out on the territory of such a State even without its consent.

The Use of Cyber Force and International Law

10.1093/law/9780199673049.003.0053 ◽

2016 ◽

Cited By ~ 1

Author(s):

Michael N. Schmitt

Keyword(s):

International Law ◽

Use Of Force ◽

Cyber Warfare ◽

Jus Ad Bellum ◽

The Right ◽

This chapter focuses on the use of cyber force on and off the battlefield within the framework of international law. Drawing on the work of the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), it considers the jus ad bellum issues surrounding cyber operations. In particular, it examines when cyber operations violate the prohibition on the use (or threat) of force set forth in Article 2(4) of the UN Charter and customary international law, and when a state that has been the target of cyber operations may retaliate with its own use of force. The chapter also discusses two exceptions to the prohibition on the use of force under Article 51 of the UN Charter, one of which is the exercise of the right of self-defence. Finally, it analyses state interpretations of international law’s prescriptive norms regarding the use of force when applied to cyberspace.

Unmuddying the Waters: Evaluating the Legal Basis of the Human Right to Water Under Treaty Law, Customary International Law, and the General Principles of Law

Michigan Journal of International Law ◽

10.36642/mjil.41.3.unmuddying ◽

2020 ◽

pp. 455

Author(s):

Ndjodi Ndeunyema

Keyword(s):

International Law ◽

Reflective Equilibrium ◽

Human Right ◽

Cultural Rights ◽

Treaty Law ◽

Sliding Scale ◽

General Principles Of Law ◽

Water Provision ◽

The Right

This article evaluates the existence of a freestanding, general human right to water under each of the three principal sources of international law: treaty, customary international law, and the general principles of law. To date, the right to water has been derived from treaty law, most prominently as part of the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights (as implied by General Comment 15 to the ICESCR). The potential importance of a non-treaty based right to water––as a matter of customary international law or a general principle of law––is that it would bind all states, including states that are not parties to treaties with right to water provisions. Therefore, this article evaluates the state practice and opinio juris elements of custom supporting a right to water. Recognizing the disputed nature of how these two elements generally interact to crystallize into a customary norm, the article considers the problem using two distinct methodological approaches: the sliding scale approach and the reflective equilibrium approach. Finally, the paper considers whether a right to water is supported by the general principles of law. Although the right to water is not directly created by the general principles of law, the principles can nevertheless be applied to develop states’ positive and negative obligations for water provision.

The Great War and International Law: German Justifications of Prevention and Pre-emptive Self-Defence

The Justification of War and International Order ◽

10.1093/oso/9780198865308.003.0010 ◽

2021 ◽

pp. 183-206

Author(s):

Isabel V. Hull

Keyword(s):

International Law ◽

Military Leaders ◽

Preventive War ◽

Early Modernity ◽

European State ◽

Jus Ad Bellum ◽

The Great War ◽

Isabel V. Hull uses the German declarations of war in 1914 to examine three issues: 1) the role of customary international law (CIL) in statesmen’s decision to go to war (using Germany as an example); 2) the assumptions that state actors held a jus ad bellum; and, especially, 3) how they distinguished self-defence, prevention, pre-emption, and aggression. Hull uses not the claims of jurists, but the arguments and actions of civilian and military leaders, i.e. those who actually made the decisions for war. With this, she continues Anuschka Tischer’s and Hendrik Simon’s examination of the question whether there was a transformation of war discourses in (early) modernity that led to overcoming the need to justify war. The chapter confirms that, even as Germany began a ‘preventive war’, the European state consensus held that, on the continent, preventive war was illegal, pre-emptive war was severely restrained, and genuine self-defence – meaning both fending off armed attack against one’s territory, independence, or sovereignty, and defending the treaty-structure that guaranteed the inter-state order – was the only justification for war acceptable to the community of states.

11. Use of force

International Law Concentrate ◽

10.1093/he/9780198840978.003.0011 ◽

2019 ◽

pp. 144-159

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

Security Council ◽

Use Of Force ◽

Armed Force ◽

Responsibility To Protect ◽

Collective Security ◽

Armed Attack ◽

Significant Achievement ◽

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.