The Law Against War The Prohibition on the Use of Force in Contemporary International Law

by Corten, Olivier; Simma, Bruno; Jouannet, Emmanuelle; Sutcliffe, Christopher

• ISBN13: 9781841139425
• ISBN10: 1841139424
• Format: Hardcover
• Copyright: 2010-10-18
• Publisher: Hart Publishing

Summary

This new book presents an examination of the non-use of force in contemporary international law. Some authors, especially in recent years, have claimed that this field is undergoing an important metamorphosis as a result, in particular, of the requirements of the "war against terror". More specifically, some authors consider that the systematic prohibition laid down in the Charter of the United Nations (1945) should be made more flexible in the current context of international relations, allowing further development of new concepts such as "humanitarian intervention" and "pre-emptive war", or providing for the possibility of presumptive authorization by the Security Council in certain exceptional circumstances. The author of this highly original work suggests that if any notable changes can be observed, especially in the past two decades, state practice shows that the Charter system is still based on a true 'jus contra bellum' and not on the 'jus ad bellum' characterizing previous periods. In this sense, as the title of the book suggests, "law against war" is not only a literal translation of the latin expression, but evokes at the same time the spirit of a rule which remains undoubtedly one of the bases of public international law.

Author Biography

Olivier Corten is Professor of Law at the Université Libre de Bruxelles, Belgium.

Table of Contents

Series Editor's Preface	p. v
Foreword	p. vii
Acknowledgments	p. xi
Tables of Cases	p. xvii
Introduction	p. 1
A Choice of Method	p. 4
The Terms of the Methodological Debate on the Non-Use of Force: the Extensive Versus the Restrictive Approach	p. 5
The Extensive Approach to the Customary Prohibition of the Use of Force	p. 6
The Restrictive Approach to the Customary Prohibition of the Use of Force	p. 15
Methodological Approach of this Book	p. 27
Reliance on a Novel Right	p. 29
The Acceptance of the Modification of the Legal Rule by the International Community of States as a Whole	p. 34
What do 'Use of Force' and 'Threat of Force' mean?	p. 50
What does'Force'mean?	p. 51
The Boundary between Military Force and Police Measures	p. 52
Determining the Threshold: 'Force' within the Meaning of Article 2(4) of the Charter	p. 66
What does 'Threat of Force' mean?	p. 92
The Restrictive Meaning of 'Threat' under Article 2(4) of the Charter	p. 93
The Scope of the Prohibition of Threat: the Absence of any Specific Regime for the Contemplated Use of Force	p. 111
Do the Prohibition of the Use of Force and Self-defence Apply to Non-State Actors?	p. 126
Exclusion of Non-State Political Entities from the Rule's Scope of Application	p. 127
Inapplicability of the Rule Prohibiting the Use of Force to Civil Wars	p. 127
Inapplicability of the Rule to National Liberation Struggles	p. 135
The Case of Territories with Entities of Controversial Legal Status	p. 149
Exclusion of Private Groups from the Rule's Scope of Application	p. 160
Maintaining 'International Relations' as Relations among States: the Letter and Spirit of the Rule	p. 162
Maintaining 'International Relations' as Relations between States: the Interpretation of Texts in Practice	p. 174
Maintaining 'International Relations' as Relations between States: the Works of the International Law Commission and of the International Court of Justice	p. 186
Can Circumstances Precluding Unlawfulness be Invoked to Justify a Use of Force?	p. 198
Inadmissibility in Principle	p. 199
The Peremptory Character of the Rule in Article 2(4) of the Charter	p. 200
Inadmissibility of Circumstances Precluding Unlawfulness Not Provided for by the Charter	p. 213
Inadmissibility Confirmed in Practice	p. 225
Precedents Attesting to States' General Reluctance to Invoke Circumstances Precluding Unlawfulness	p. 225
Precedents Attesting Unequivocal Condemnation of Armed Reprisals	p. 234
The Rare Precedents where Circumstances Precluding Unlawfulness have been Invoked to Justify the Use of Force	p. 236
Intervention by Invitation	p. 249
The General Legal Regime of Military Intervention by Invitation	p. 250
The Possibility of Consenting to Armed Intervention within the Limits of Peremptory Law (Jus Cogens)	p. 250
The Requirement for Consent of the State's Highest Authorities	p. 259
The Existence of 'Validly Given' Consent	p. 266
The Legal Regime of Military Intervention by Invitation in an Internal Conflict	p. 276
The Problem of Concurrent Governments	p. 277
The Problem of the Purpose of the Intervention by Invitation	p. 288
Intervention Authorised by the UN Security Council	p. 311
The General Legal Regime of Authorised Military Intervention	p. 312
The Lawfulness of Military Intervention Authorised by the Security Council	p. 312
The Unlawfulness of Military Intervention 'Authorised' by Another UN Body or by Another Subject of International Law	p. 329
The Problem of Presumed Authorisation	p. 348
The Absence of Recognition of Presumed Authorisation in Practice	p. 349
Refusals and Obstacles of Principle to Recognition of a Presumed Authorisation	p. 390
Self-Defence	p. 401
'Armed Attack' According to Article 51 of the Charter	p. 402
'Preventive Self-Defence' Theories	p. 406
The Question of 'Indirect Aggression'	p. 443
Necessity and Proportionality	p. 470
The Limit of Necessary Measures Adopted by the Security Council	p. 472
The General Meaning of Conditions of Necessity and Proportionality	p. 479
A Right of Humanitarian Intervention?	p. 495
Non-Recognition in Legal Texts	p. 497
The Dismissal of the Right of Humanitarian Intervention in Classical Legal Texts	p. 498
The Persistent Refusal to Accept a 'Right of Humanitarian Intervention'	p. 511
The Non-Existence of Decisive Precedents	p. 526
The Absence of Consecration of a Right of Humanitarian Intervention before 1990	p. 527
The Absence of Consecration of a Right of Humanitarian Intervention since 1990	p. 537
Conclusion	p. 550
Selected Reading	p. 555
Index	p. 559
Table of Contents provided by Ingram. All Rights Reserved.