scholarly journals Dois pesos, duas medidas: a aplicação da necessidade e da proporcionalidade no jus ad bellum

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
Julia Macedo ◽  
Marinês Assmann
Keyword(s):  
International Law ◽  
Legal Framework ◽  
The State ◽  
Customary Law ◽  
Primary Role ◽  
Armed Attack ◽  
Customary International Law ◽  
Self Defense ◽  
Current State ◽  
The Right

RESUMOEstabelecido no artigo 51 da Carta das Nações Unidas, o direito à legítima defesa não é absoluto, devendo o Estado-vítima de ataque armado respeitar os requisitos pré-determinados pela estrutura legal internacional. Os princípios da necessidade e proporcionalidade da defesa exercem função primordial nesse sentido, uma vez que, segundo o direito costumeiro internacional, o Estado deve conformar sua conduta a eles. O presente trabalho tem por objetivo estabelecer o atual estado da arte no que respeita à necessidade e à proporcionalidade, como limitadoras do direito à legítima defesa no direito internacional público. Os mencionados princípios, apesar de bem consolidados e de fazerem parte do direito consuetudinário internacional, não têm seus contornos bem delimitados, causando discordâncias entre a prática estatal e a doutrina. PALAVRAS-CHAVEDireito internacional público. Legítima defesa. Necessidade. Proporcionalidade. ABSTRACTThe right to self-defense, established in the article 51 of the Charter of the United Nations, is not absolute, and the State victimized by an armed attack must comply with the requirements determined by the international legal framework. In this sense, the principles of necessity and proportionality of the defense play a primary role since, according to customary international law, the State must shape its conduct to these principles. The present work aims to outline the current state of the art of necessity and proportionality as limits to the right to self-defense in public international law. These principles, although well-established and part of international customary law, do not have their boundaries well-defined, causing disagreements between State practices and doctrine. KEYWORDSPublic international law. Self-defense. Necessity. Proportionality.

scholarly journals The Challenge of Cyber Attacks in the “Information Age” and the Jus Ad Bellum

2019 ◽  
Vol 5 (2) ◽  
pp. 79
Author(s):  
Pshtiwan Mohammed Qader
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Information Age ◽  
Cyber Attacks ◽  
Armed Force ◽  
Critical Infrastructures ◽  
Cyber Attack ◽  
Armed Attack ◽  
Self Defense ◽  
The Right

The present paper examines the problem of cyber-attacks under existing international law. It takes the view that the (United Nations) UN Charter provisions on the use of force can be extended to cyber-attacks by means of interpretation although the relevant provisions do not explicitly address such issue. This Article argues that cyber-attacks resulting in material damage or destruction to property, death or injury to persons, or severe disruption of the functioning of critical infrastructures can be characterized as use of armed force and therefore violate the prohibition contained in article 2(4) of the Charter. However, cyber-attacks not resulting in the above consequences may be illegal intervention in the internal affairs of other states if such attacks are coercive in nature. In addition, the current study discusses that a cyber-attack which amounts to a use of armed force per se is not sufficient to give the victim state the right to self-defense, unless its scale and effects are equivalent to those of a conventional armed attack. Finally, the study concludes that an international cyber treaty is truly necessary to more effectively address cyber-attacks.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

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.

Part II Sources, Ch.13 Customary Refugee Law

2021 ◽  
Author(s):  
Lambert Hélène
Keyword(s):  
International Law ◽  
Customary Law ◽  
Refugee Convention ◽  
Customary International Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
Treaty Law ◽  
International Refugee Law ◽  
The Right ◽  
To Receive

This chapter explores customary refugee law. Refugee law is primarily treaty law. However, many of the major refugee-receiving countries are not parties to either the Refugee Convention or the Refugee Protocol, for example Bangladesh, Pakistan, India, Iran, Jordan, and Lebanon. Hence, customary international refugee law can be critically important in the identification of key principles of refugee protection and as an indication of what is permitted or not. While customary international law may not play as significant a role in refugee law as it does in other areas of international law, there are at least three practices of refugee protection aimed at safeguarding access and admission to refugee protection for which varying degrees of agreement exist in favour of a rule (or emerging rule) of customary law: non-refoulement, temporary refuge, and the right to be granted (to receive) asylum. These practices are deeply intertwined in their humanitarian purpose.

Expropriation in International Investment Law

2017 ◽  
Author(s):  
Freya Baetens
Keyword(s):  
World War Ii ◽  
International Law ◽  
Due Process ◽  
Legal Framework ◽  
International Investment ◽  
Customary International Law ◽  
International Investment Law ◽  
Minimum Standards ◽  
Due Process Of Law ◽  
The Right

Expropriation is the taking of foreign property by a state, whether for public purposes or other reasons. Historic instances of expropriation included outright takings of property, but nowadays expropriation is most commonly a result of indirect governmental measures that have the equivalent effect of a formal taking of property. International law protecting foreigners from the taking of their property began to be incorporated into treaties in the 19th and 20th centuries. Meanwhile, judicial pronouncements, particularly in the aftermath of World War II, paved the way for customary international law on this issue. This included the development of minimum standards for lawful taking of foreign property, including that expropriation must be for a public purpose; applied in a nondiscriminatory manner; carried out with due process of law; and accompanied by payment of prompt, adequate, and effective compensation. Nowadays, the international legal framework for regulating the right to take foreign property is largely contained in international investment agreements (IIAs). IIAs incorporate the minimum standards for lawful expropriatory measures developed in customary international law, but also provide additional rules on the types of property protected, requirements for such protection, and the actions from which property is protected. One of the biggest questions faced by international investment tribunals interpreting IIAs is the distinction between compensable indirect expropriations and legitimate, non-compensable regulatory measures. Arbitral tribunals are also yet to agree on principles for quantifying compensation and criteria for valuing expropriated property. Much of the literature in this article is devoted to these thorny issues.

From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom

2014 ◽  
Vol 3 (2) ◽  
pp. 323-339
Author(s):  
Ole W. Pedersen
Keyword(s):  
International Law ◽  
Precautionary Principle ◽  
The Other ◽  
Customary Law ◽  
Customary International Law ◽  
The Precautionary Principle ◽  
Cross Border ◽  
Current State ◽  
State Practice ◽  
Indus Waters Treaty

AbstractThe question of what status the precautionary principle enjoys in international law has once again reared its head, most recently in the Indus Waters Treaty dispute between India and Pakistan before the Permanent Court of Arbitration. This article assesses the current state of play in respect of the precautionary principle and its status in international law. It identifies what it terms the two camps of custom – the custom camp and the no-custom camp – which find themselves on opposing sides in the debate. The article argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In so doing, the article shows that one side is guilty of ‘precaution spotting’, whereas the other ignores the implications of the ‘rule v. standard’ dialectic. These two concepts help us to understand the different claims advanced by the two camps. They also alert us to the fact that it is possible to conceptualize customary international law along two separate lines of inquiry: one lending emphasis to state practice and one relying on statements and declarations of rules. In pursuing these arguments, the article compares the precautionary principle with (other) norms of customary law, such as the ‘no-harm rule’ and the rules on cross-border environmental impact assessment, and argues that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.

scholarly journals Searching for Armed Non-state Actors’ Role in the Process of Formation of Customary Law

2019 ◽  
Vol 19 (2) ◽  
pp. 97-115 ◽  
Author(s):  
Agata Kleczkowska
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Current State ◽  
Protection Of Human Rights ◽  
State Actors

Summary The paper explores the problem of the formation of the ‘(quasi-) customary law’, as a source of law created by, or contributed to by armed non-state actors (ANSAs). It argues that, despite some views presented in the doctrine of international law, claims of a quasi-customary international law are without foundation in the current state of international law. The paper is divided into three parts. The first part presents the views of legal doctrine concerning the customary law as contributed/created by non-state actors. The second section argues that ANSAs do not form practice and opinio juris which would allow them to create their ‘own’ customary law. The final part presents the possible challenges and consequences of including ANSAs in the process of formation of customary international law as created by States. In summary the conclusions posit that it could be potentially very harmful for international humanitarian law and the protection of human rights.

The Illegality of the Arab Attack on Israel of October 6, 1973

1975 ◽  
Vol 69 (2) ◽  
pp. 272-289 ◽  
Author(s):  
Eugene V. Rostow
Keyword(s):  
International Law ◽  
Security Council ◽  
Security Council Resolution ◽  
Armed Attack ◽  
Peace Agreement ◽  
Territorial Expansion ◽  
Customary International Law ◽  
Self Defense ◽  
Self Help ◽  
Actual Control

In part II of his article, Destination Embargo of Arab Oil: Its Legality under International Law, Mr. Ibrahim F. I. Shihata defends the legality of the armed attack on Israel launched by many Arab states, with Soviet assistance, on October 6, 1973. “Egypt and Syria,” he writes, “as the states vested with sovereignty, but illegally deprived of actual control, over territories occupied by Israel were … entitled to seek redress for the protection of their territorial integrity. Under the UN system they were probably under the obligation to resort first to peaceful methods. This they have done in vain for more than six years. Egypt, in particular, expressed officially its readiness to enter into a peace agreement with Israel containing all the obligations provided for in Security Council Resolution 242 (1967) as broadly elaborated by the Special Representative of the UN Secretary-General, Ambassador Jarring. In response, Israel defiantly insisted on territorial expansion.” Under these circumstances, he argues, both Egypt and Syria (which had never accepted any version of Security Council Resolution 242 or given any assurances to Ambassador Jarring) had an inherent right of self-help under customary international law, or of self-defense under “a broad reading” of Article 51 of the Charter, in what he asserts was no more than an attempt to recover those territories by force.

scholarly journals The True Meaning of Force—A Reply to Mary Ellen O’Connell

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 148-152
Author(s):  
Tom Ruys
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Small Scale ◽  
Armed Attack ◽  
Extensive Reading ◽  
Central Thesis ◽  
Self Defense ◽  
Broad Interpretation ◽  
The Right ◽  
Considerable Damage

In her comment on my piece in the latest issue of the American Journal of International Law (The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)? ), Mary Ellen O’Connell expresses strong objections to the piece’s central thesis, notably that small-scale or “targeted” forcible acts are not as such excluded from the scope of the prohibition on the use of force in UN Charter Article 2(4). What is more, she sees the central thesis and narrative of the piece as a mere veil, behind which hides the true aim of the article, notably to set forth an extensive reading of the right of self-defense—which was allegedly also the point of my book on armed attack of 2010. In other words, an argument pleading for a broad interpretation of the prohibition on the use of force is in reality used as a Trojan horse, to lure the unsuspecting reader into accepting a broader right of states to use force, doing considerable damage to the Charter regime on the use of force.

Can Non-State Actors Mount an Armed Attack?

2016 ◽  
Author(s):  
Kimberley Trapp
Keyword(s):  
International Law ◽  
Necessary Condition ◽  
Armed Attack ◽  
International Court Of Justice ◽  
Customary International Law ◽  
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.

Blockade Law

2018 ◽  
Author(s):  
Phillip Drew
Keyword(s):  
International Law ◽  
Customary Law ◽  
Past Century ◽  
Potential Harm ◽  
Customary International Law ◽  
The Past ◽  
Current State ◽  
The Law

Grounded almost entirely in customary international law, the law of maritime blockade has defied several attempts at codification over the past century and a half. Although there is general agreement on the elements required to establish a blockade (declaration, notification, effectiveness, equal application, and non-interference with neutral ports) there is virtually no guidance in the law that outlines the requirements and responsibilities for parties to the conflict to mitigate potential harm to civilians affected through starvation and/or the deprivation of other humanitarian items. This chapter examines the current state of the law and concludes that in light of the significant discordance over the issue of humanitarian access, there is no settled customary law on these aspects of blockade law.

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