International Law Use of Force in International Law
by
Olivier Corten
  • LAST REVIEWED: 16 August 2016
  • LAST MODIFIED: 27 October 2016
  • DOI: 10.1093/obo/9780199796953-0005

Introduction

Use of force is a politically sensitive and legally undetermined topic. It is therefore not surprising that it constitutes a highly controversial issue. During the Cold War, various critical debates about the legality of military interventions (Korea, Vietnam, Nicaragua, Palestine, Afghanistan) were prevalent. These controversies did not disappear in the 1990s (Yugoslavia) nor in the 2000s and 2010s (Afghanistan, Iraq, Israel/Lebanon, Russia/Georgia, Libya, Syria, Ukraine, among others). A general assessment of the numerous books and articles dedicated to this issue reveals a deep ambivalence. On the one hand, no one really contests that the use of force is strictly forbidden in contemporary international law. This prohibition is recognized as a core rule of the law of nations, and even a rule of imperative international law (jus cogens). Indeed, it seems difficult to conceive any kind of legal order without at least affirming that its subjects cannot attack one another. The prohibition of the use of force is also logically linked to the notion of external sovereignty, aiming both at protecting the identity and the personality of every state and at preserving individuals “from the scourge of war” (preamble of the UN Charter). On the other hand, there are, to say the least, a great variety of interpretations of the rule. Are collective security and self-defense the only exceptions in allowing states to use force? Is the Security Council the only authority able to authorize states to use force? Under what conditions are states able to invoke self-defense? Those questions seem difficult to address, as the conventional sources are rather limited: Article 2(4) and Chapters VII and VIII of the UN Charter are far from providing explicit answers to all the questions raised. Thus, the answers can be found mainly in customary international law, with all the difficulties surrounding the task of establishing that law.

General Overviews

Two major trends can be distinguished in international legal scholarship. On the one hand, we find extensive interpretations of the possibilities to use force: broad definition of self-defense, a rejection of a UN monopoly to authorize military actions, and the admissibility of humanitarian or pro-democratic interventions. These writings are generally grounded in a nonpositivist approach to international law. Considerations of morality or politics are taken into account to support some of the arguments presented, including recent examples such as increasing threats posed by terrorists and rogue states; the emergence of values of democracy, rule of law, and human rights; and a “moralization” of international law, among others. On the other hand, many authors prefer a legally and textually oriented method to assess the rule. Customary international law must be interpreted according to the UN Charter, to relevant subsequent instruments (GA Resolutions 2625 (XXV), 3314 (XXIX), 42.22, 60/1, . . .), and to judicial decisions, especially from the International Court of Justice (ICJ) (Nicaragua, Oil Platforms, Armed Activities on the Territory of the Congo cases). Generally, these authors explicitly or implicitly contend that broadening the possibilities to use force in the name of policy considerations would be too dangerous, as it would lead to a revival of ancient “just war” theories, opening the door to arbitrariness, subjectivity, and imperialism of the major powers. Of course, many authors cannot be situated in either the first (the “extensive approach”) or the second (the “restrictive approach”) category defined above. Nevertheless, it is always possible, and often useful, to place every book or article dedicated to the use of force on a spectrum running from one trend to the other. Arend and Beck 1993, Dinstein 2011, and Franck 2002 constitute good illustrations of the extensive approach, whereas Gray 2008, Henderson 2010, and Corten 2010 can be characterized as “restrictive.” Kolb 2009 is perhaps more difficult to classify, whereas Weller 2014 offers an overview of various authors pertaining to different approaches. Lastly, it must be kept in mind that most of these books contain developments on many topics related to the use of force, in particular those subjects that are detailed in subsequent sections, including threat, consent, collective security, self-defense, and humanitarian intervention.

  • Arend, Anthony Clark, and Robert J. Beck. International Law and the Use of Force. London: Routledge, 1993.

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    Illustration of an extensive approach. The authors contend that contemporary practice shows a great uncertainty about the limits of jus ad bellum. Against this background, there would be no clear prohibition of preemptive self-defense, military intervention to protect nationals, or counterterrorist “reprisals.”

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    • Corten, Olivier. The Law against War. Oxford: Hart, 2010.

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      Grounded in numerous and extensive footnotes, this book offers a clear expression of the restrictive position. Arguments used to justify a use of force by broadening the possibilities enshrined in the UN Charter are refuted as being unacceptable to the majority of states. An update and translation of the original text in French (Le droit contre la guerre [Paris: Pedone, 2008], second updated edition in 2014).

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      • Dinstein, Yoram. War, Aggression and Self-Defence. 5th ed. Cambridge, UK: Cambridge University Press, 2011.

        DOI: 10.1017/CBO9780511920622Save Citation »Export Citation »E-mail Citation »

        Dinstein offers a comprehensive theory of the jus contra bellum, stressing the possibilities left open in contemporary international law to use force. The theses of this classical book are strong and even sometimes radical, but they are presented with a real subtlety. Also interesting due to the will of the author to address practical problems and sketch precise solutions to solve them.

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        • Franck, Thomas. Recourse to Force: State Action against Threats and Armed Attacks. Cambridge, UK: Cambridge University Press, 2002.

          DOI: 10.1017/CBO9780511494369Save Citation »Export Citation »E-mail Citation »

          This book is an interesting example of an extensive approach as defined above. Franck argues that the evolution of custom reveals a tendency to accept the legality of many actions conducted in the name of self-defense, humanitarian intervention, or even countermeasures. He also supports the concept of mitigation, which condones some limited violations of the UN Charter.

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          • Gray, Christine. International Law and the Use of Force. 3d ed. Oxford: Oxford University Press, 2008.

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            Gray is distinguished from Dinstein and Franck by her stricter legal methodology. She insists on the practice, and the will, of states to show that various doctrinal intents aiming at relaxing the prohibition on the use of force have failed. Every precedent is studied with accuracy on the basis of an extensive research in official documents. Also contains an in-depth discussion of contemporary debates developing in the field.

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            • Henderson, James. The Persistent Advocate and the Use of Force: The Impact of the United States upon the jus ad bellum in the Post–Cold War Era. Farnham, UK: Ashgate, 2010.

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              Henderson supports a restrictive interpretation of the relevant provisions of the UN Charter, arguing that those articles have not be modified in spite of the new interpretations supported by the United States and some of its allies.

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              • Kolb, Robert. “Ius contra bellum.” In Le droit international relatif au maintien de la paix. 2d ed. By Robert Kolb, 435. Brussels: Bruylant/Helbing & Lichtenhahn, 2009.

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                Accessible book, based on a course given on the topic. After having offered a historical overview of the emergence of the Charter regime, Kolb generally supports a strict obligation to respect jus contra bellum even if, at the same time, he occasionally uses moral or pragmatic arguments to interpret the legal regime in a teleological way.

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                • Weller, Marc, ed. The Oxford Handbook of the Use of Force in International Law. Oxford: Oxford University Press, 2014.

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                  This handbook offers an extensive overview of many relevant issues written by top authors in the field. It includes general topics (history and theory of international law regarding the use of force, status of the rule, relations with other rules and regimes, among others) as well as detailed studies about more particular questions (collective security, cyber force, self-defense, among others).

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                  Judicial Decisions

                  Judicial decisions are regarded as a main source in various spheres of international law, including human rights law, international economic law, law of the sea, and boundary delimitations. By contrast, very few cases can be found in the field of the use of force. Obviously, this is due to the reluctance of states to submit these highly sensitive questions to an international judge. On the other hand, when asked to make a statement about the use of force, the international judge seldom fails to do it. The cases listed below, if limited in number, are thus truly significant. The Corfu Channel case (International Court of Justice 1949) does not directly address the use of force, but it is often cited as containing a general statement against any “right of intervention.” In the seminal Nicaragua case (International Court of Justice 1986), the International Court of Justice (ICJ) interprets many aspects of the prohibition of the use of force in a clearly restrictive way. All the arguments used to justify US armed activities against Nicaragua (self-defense, pro-democratic intervention) are strongly rejected. This restrictive position was reaffirmed some twenty years later in the Armed Activities on the Territory of the Congo case (International Court of Justice 2005) even if in a different context. The Nuclear Weapons and Oil Platforms cases, and the Wall advisory opinion (International Court of Justice 1996, International Court of Justice 2003, International Court of Justice 2004) are not as significant, as they contain no comprehensive analysis of jus contra bellum. However, they confirm the tendency of the ICJ to refuse to condone any rewriting or reinterpretation of the prohibition of the use of force as enshrined in the UN Charter, even after the proclamation of a “war against terror” in the 2000s. Against this background, it is understandable that the ICJ case law is often quoted by authors who can be associated with the restrictive approach as described above. Other precedents are sometimes evoked, such as the Diplomatic Staff case in 1980 or the FRY/NATO States case in 1999, in which the Court seems to condemn the use of military force. One could also mention the Fisheries cases (Iceland v. United Kingdom and Federal Republic of Germany in 1974, Spain v. Canada in 2003), as the issue of the use of force was invoked by some parties during the proceedings. However, these cases are too elliptic to prove useful, and therefore they are not cited here.

                  Threat

                  Though it is an essential provision of the prohibition set out in Article 2(4) of the UN Charter, the issue of the threat to use force has hardly been a matter of in-depth scholarly debate. Authors generally prefer to focus on the “threat to the peace” within the meaning of Article 39 and Chapter VII of the Charter, in order to interpret the increasing powers of the Security Council. By contrast, literature specifically dedicated to the threat to use force remains rather limited. That fact could be due to the scarcity of practice, with states generally preferring to condemn actual uses of force instead of mere threats. Another problem is, of course, the difficulty in defining and qualifying a “threat,” which is, by its very nature, an act that has not materialized. Wood 2012, Kritsiotis 2009, and Grimal 2012 provide a stimulating reflection on this matter. In addition, all the relevant legal texts prohibit the threat as well as the use of force itself, even if the former does not trigger self-defense like the other does. Authors have treated this apparent paradox in different ways. Some works, such as Sadurska 1988 or Roscini 2007, consider that threats are less strictly forbidden than uses of force. Others, such as Stürchler 2007, defend the opposite view in the name of the necessity to avoid an escalation of a conflict. A third trend, illustrated in Dubuisson and Lagerwall 2004, can be designated as the “symmetrical thesis,” according to which a threat of force is illegal if and inasmuch as the use of force itself would be.

                  • Dubuisson, François, and Anne Lagerwall. “Que signifie encore l’interdiction de recourir à la menace de la force?” In L’intervention en Irak et le droit international: Actes du Colloque International, 17–18 Octobre 2003, Paris. Edited by Karine Bannelier, 83–104. Paris: Pedone, 2004.

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                    This contribution (later updated in Weller 2014, cited under General Overviews) strongly supports the “symmetrical thesis” as enshrined in practice, legal texts, and case law, in particular the Nuclear Weapons case (see Judicial Decisions). Dubuisson and Lagerwall also consider that the threat forbidden by Article 2(4) of the UN Charter must be narrowly defined as requiring a clear and manifest intention to use force.

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                    • Grimal, Francis. Threats of Force: International Law and Strategy. London: Routledge, 2012.

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                      Following an interdisciplinary approach articulating international law, strategic studies, and international relations, Grimal addresses whether Article 2(4) of the UN Charter is suited to the current situation and if alternative means of rethinking the notion of threat are possible.

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                      • Kritsiotis, Dinos. “Close Encounters of a Sovereign Kind.” European Journal of International Law 20.2 (2009): 299–330.

                        DOI: 10.1093/ejil/chp024Save Citation »Export Citation »E-mail Citation »

                        Demonstrates the extent and variety of threats in contemporary international relations since the end of the Cold War. Points out the difficulty in defining the phenomena, and in applying the formal requirements of the ICJ (see above) in certain circumstances.

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                        • Roscini, Marco. “Threats of Armed Force and Contemporary International Law.” Netherlands International Law Review 54 (2007): 229–277.

                          DOI: 10.1017/S0165070X0700229XSave Citation »Export Citation »E-mail Citation »

                          In a similar vein, Roscini considers that only threats of aggression can be characterized as violations of jus cogens. A simple threat to use force cannot be. Here again, this assessment can be deduced from a careful study of state practice.

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                          • Sadurska, Romana. “Threats of Force.” American Journal of International Law 82 (1988): 239–267.

                            DOI: 10.2307/2203188Save Citation »Export Citation »E-mail Citation »

                            In this substantial study of international state practice, Sadurska contends that a threat to use force is sometimes tolerated if its goal is considered legitimate. There would thus be a distinction between an effective use of force, which is formally forbidden, and a threat to use force, which could be accepted more easily under certain circumstances.

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                            • Stürchler, Nikolas. The Threat of Force in International Law. Cambridge, UK: Cambridge University Press, 2007.

                              DOI: 10.1017/CBO9780511494338Save Citation »Export Citation »E-mail Citation »

                              The only book dedicated entirely to the threat of force in international law, based on extensive research. Contrary to Sadurska or Roscini, Stürchler considers that threats can be more strictly prohibited than actual uses of force. Indeed, in certain situations that are dangerous to international peace, any threat, even to implement Security Council military sanctions, would be illegal.

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                              • Wood, Michael. “Use of Force, Prohibition of Threat.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Oxford: Oxford University Press, 2012.

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                                Brief introduction to the topic. Wood points out the difficulty in defining a “threat,” and in determining if this threat is lawful, as it could be anticipating an authorization of the Security Council. Available online by subscription. Online version last updated in 2013.

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                                Consent

                                The consent given by relevant authorities is a classical justification for using force. During the Cold War, the USSR invoked an invitation by Hungarian, Czech, and Afghan officials, whereas the United States used the same argument to intervene in Lebanon, the Dominican Republic, and Grenada. More recently, military actions by the Economic Community of West African States (ECOWAS) in Liberia and Sierra Leone, or more generally all “peacekeeping” operations, were conducted in the name of an “invitation” by the national governments. This problem is not addressed in classical texts dedicated to the use of force—none of them contain any identification or definition of the conditions required to conduct an intervention by invitation. Furthermore, doctrine remains somewhat underdeveloped on this topic, with only a few writings dealing specifically with it. This lack of development can be explained by several factors. First of all, it should be remembered that many aspects of this topic are governed by general international legal principles, including determination of the government of a state, sovereignty and nonintervention, self-determination, and definition of a “consent” according to the law of international responsibility. Moreover, it is generally understood that an intervention by invitation is not a use of force governed by Article 2(4) of the UN Charter insofar as it is not directed against the territorial integrity or political independence of the state concerned. Accordingly, intervention by invitation is not strictly speaking a jus contra bellum issue. A general trend in current scholarship is to accept the legality of intervention by invitation if two main conditions are met. First, the consent must be legally valid. That means that it must be given by the relevant authority, i.e., the effective government, recognized as such by the other states, and that this consent must also meet the criterion of a valid consent codified by the International Law Commission in its Articles on International Responsibility. Le Mon 2003 mirrors these concerns. Second, the intervention cannot be aimed at supporting a party in a civil strife as doing so would contradict the principles of noninterference and self-determination. This trend, which was already perceptible in Bennouna 1974, can be found in the Wiesbaden resolution of the Institute of International Law on “The Principle on Non-intervention in Civil Wars” drafted in 1975, as well as in the Rhodes resolution on “Military assistance on request” in 2011. It is also confirmed in several studies, including those of Doswald-Beck 1985, Tanca 1993, Nolte 1999, and Christakis and Bannelier 2004, even if this conclusion is sometimes nuanced (Lieblich 2013).

                                • Bennouna, Mohammed. Le consentement à l’ingérence dans les conflits internes. Paris: Librairie Générale de Droit et de Jurisprudence, 1974.

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                                  This book provides a general overview of the practice prevailing between 1945 and 1974, notably the African practice. Bennouna supports a restrictive conception, prohibiting external interference within internal conflicts and stressing the necessity to respect self-determination of the peoples before, but also after, the creation of a state.

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                                  • Christakis, Théodore, and Karine Bannelier. “Volenti non fit injuria? Les effets du consentement à l’intervention militaire.” Annuaire Français de Droit International 50 (2004): 102–137.

                                    DOI: 10.3406/afdi.2004.3789Save Citation »Export Citation »E-mail Citation »

                                    Christakis and Bannelier focus on relevant texts and practice, including those written at the turn of the 21st century. In essence, they develop the same view espoused by the other authors cited above, but they contend that there would be an exception to the nonintervention principle in the case of a secessionist conflict. In this particular case, helping the governmental authorities to maintain the unity of the state would be allowed.

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                                    • Doswald-Beck, Louise. “The Legal Validity of Military Intervention by Invitation of the Government.” British Yearbook of International Law 56.1 (1985): 189–252.

                                      DOI: 10.1093/bybil/56.1.189Save Citation »Export Citation »E-mail Citation »

                                      Doswald-Beck studies various precedents to assert the inadmissibility of external military interventions in civil wars. She stresses the evolution of international law from tolerance to banning of military support in favor of established governments. Contemporary practice shows that a substantial aid to the official authorities is admissible only if the rebels are themselves already supported from the outside.

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                                      • Le Mon, Christopher J. “Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested.” New York University Journal of International Law and Politics 35 (2003): 741–793.

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                                        The author focuses on the external legitimacy of the inviting government as the key determinant of the legality of intervention. International practice reveals that recognition plays a decisive role in this regard.

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                                        • Lieblich, Eliav. International Law and Civil Wars: Intervention and Consent. London: Routledge, 2013.

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                                          Beyond what he calls a “strict-absentionist” approach, Lieblich stresses the prevalence of a presumption in favor of governments in the existing practice and case law. Only a government that “actively disregards the principle of protection of civilians” would lose its consent power.

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                                          • Nolte, Georg. Eingreifen auf Einladung: Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung. Berlin: Springer, 1999.

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                                            This book is perhaps the most complete work on the topic. Nolte analyzes dozens of precedents to assert that intervention by invitation is lawful only if it is not conducted against the will of the people of the state concerned. Conditions of validity of a consent are also described with accuracy as well as many other aspects in relation to consent.

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                                            • Ronzitti, Natalino. “Use of Force, Jus Cogens and State Consent.” In The Current Legal Regulation of the Use of Force. Edited by Antonio Cassese, 147–166. Dordrecht, The Netherlands: Martinus Nijhoff, 1986.

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                                              Ronzitti observes that consent is often given to justify interventions that are limited in time and space. According to him, such military operations would not be contrary to jus cogens. Therefore, consent could offer a valid circumstance precluding wrongfulness in such cases.

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                                              • Tanca, Antonio. Foreign Intervention in Internal Conflict. Dordrecht, The Netherlands: Martinus Nijhoff, 1993.

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                                                Tanca studies international practice to show that states supporting a government often use the “counterintervention” argument, by invoking a previous external aid in favor of the rebels. The book contains an appendix identifying thirty individual precedents.

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                                                Collective Security

                                                There is little controversy about the possibility of using force according to a Security Council resolution adopted in conformity with mechanisms of collective security as enshrined in Chapters VII and VIII of the UN Charter. Until 1990, this possibility remained rather theoretical. Since this date, however, the Security Council has given authorizations to use force in numerous situations, including the Gulf War, Bosnia-Herzegovina, Somalia, Haiti, Rwanda, Albania, East Timor, Democratic Republic of the Congo, Libya, and Côte d’Ivoire. This technique of “authorization” has not really been challenged, even if it is not stated as such in the UN Charter. The Institute of International Law codified existing practice in its Rhodes resolution on “Authorization of the Use of Force by the United Nation”. However, scholars differ in their views concerning the monopoly of the Security Council to authorize force according to Chapter VIII of the Charter. Some consider that regional agencies, such as the African Union or the North Atlantic Treaty Organization (NATO), could launch an enforcement action without requiring a Security Council decision, while others refute this possibility. Another controversy focuses on the question of the “implied,” or “presumed,” authorization. Finally, it should be noted that these issues often arise in relation to the question of Humanitarian Intervention.

                                                General Powers of the Security Council

                                                The frequent practice that developed in the 1990s has been commented on in several major books, notably Sarooshi 1999; de Wet 2004; Lowe, et al. 2008; and Sicilianos 2009. Blokker 2000, and Picone 2005 offer an introduction to the topic, whereas Christakis and Bannelier 2004 as well as Hajjami 2013 analyze more specific questions related to the control of the Security Council and the use of the “necessary measures” formula.

                                                • Blokker, Niels. “Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing.’” European Journal of International Law 11.3 (2000): 541–568.

                                                  DOI: 10.1093/ejil/11.3.541Save Citation »Export Citation »E-mail Citation »

                                                  This article offers a good introduction in addressing the authorization process, based both on existing texts and on emerging practice. Blokker considers that demand is increasing for more precision in the mandate given and more control over the actions authorized.

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                                                  • Christakis, Théodore, and Karine Bannelier. “Acteur vigilant ou spectateur impuissant? Le contrôle exercé par le Conseil de sécurité sur les Etats autorisés à recourir à la force.” Revue Belge de Droit International 2 (2004): 498–527.

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                                                    Dedicated to the obligation of control incumbent on the Security Council when it authorizes a use of force. This obligation is necessary to ensure that the military operations remain an application of the collective security mechanisms as defined in the Charter. However, member states and the Security Council have a broad leeway to interpret this obligation.

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                                                    • de Wet, Erika. The Chapter VII Powers of the United Nations Security Council. Oxford: Hart, 2004.

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                                                      Grounded in an extensive study of state practice, the book shows how the authorization model became a firmly established substitute for the Article 43 agreements foreseen in the UN Charter. De Wet points out the increasing discretion to qualify a situation of “threat to peace” but insists on the necessity of maintaining an “overall command and control” by the Security Council.

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                                                      • Hajjami, Nabil. “Que signifie l’expression ‘prendre toutes les mesures nécessaires’ dans la pratique du Conseil de sécurité des Nations Unies?” Revue Belge de Droit International 1 (2013): 232–255.

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                                                        Based on a study of the travaux préparatoires of the Charter and an analysis of an abundant existing practice, this study shows that the “necessary measures” formula cannot be reduced to a “blank check” handed by the UN to intervening states.

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                                                        • Lowe, Vaughan, Adam Roberts, Jennifer Welsh, and Dominik Zaum, eds. The United Nations Security Council and War: The Evolution of Thought and Practice since 1945. Oxford: Oxford University Press, 2008.

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                                                          General overview of the powers and activities of the Security Council since its creation; contains various contributions. Includes a case studies section as well as a section dedicated to the changing character of war (international administration and occupation, terrorism, use of force by nonstate actors). Valuable contribution to the existing legal literature.

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                                                          • Picone, Paolo. “La autorizzazioni all’uso della forza tra sistema delle Nazioni Unite e dirritto internazionale generale.” Rivista di Diritto Internazionale 88.1 (2005): 5–75.

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                                                            Picone points out the evolution of the powers of the Security Council in regard to the original intent of the drafters of the Charter. Combines theoretical reflection and assessment of an abundant practice.

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                                                            • Sarooshi, Danesh. The United Nations and the Development of Collective Security: The Delegation by the United Nations Security Council of Its Chapter VII Powers. Oxford: Clarendon, 1999.

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                                                              Sarooshi analyzes the practice of the Security Council after the Cold War as a “delegation” mechanism. This mechanism is narrowly interpreted as being restricted by various conditions. The delegation must be clearly established, cannot extend to a general power of appreciation, and the action must be kept under control by the Security Council.

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                                                              • Sicilianos, Linos-Alexandre. “Entre multilatéralisme et unilatéralisme: L’autorisation par le Conseil de sécurité de recourir à la force.” Recueil des Cours 239 (2009): 9–436.

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                                                                Perhaps the most exhaustive study on the matter. Sicilianos analyzes the authorization mechanism as a hybrid and sui generis legal process. He stresses the importance of keeping in mind the spirit of multilateralism that characterizes Chapters VII and VIII of the UN Charter.

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                                                                Security Council and Regional Agencies

                                                                Article 53 of the UN Charter states that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council.” In practice, however, regional organizations have often acted without any authorization of the Council on the basis of either collective self-defense or an invitation from the parties to the conflict. This trend is discussed in general studies such as Villani 2001 and Arend 1996. Furthermore, some authors consider that the Chapter VIII requirements can be circumvented in exceptional circumstances, in particular in situations of humanitarian urgency (see Walter 1996), whereas others (de Wet 2002, Simma 1999, and Boisson de Chazournes 2010) refute this possibility. Others point out the specificities in the charters of some regional organizations, such as the African Union, that enable these organizations to act without a previous Security Council resolution. Yusuf 2003 provides a good illustration of this trend. However, many scholars (e.g., Kolb 2005) think that international law is still limited to this choice, namely, there is either no enforcement action (e.g., when the authorities have consented to a peacekeeping operation and Article 53 is simply not applicable) or a regional organization acts against the will of the member state and Article 53 requires an authorization by the Security Council.

                                                                • Arend, Anthony Clark. “The United Nations, Regional Organizations, and Military Operations: The Past and Present.” Duke Journal of Comparative & International Law 7.1 (1996): 3–33.

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                                                                  Attributes the ongoing difficulties surrounding the relations between the UN and regional organizations to two factors. First, the wording of the Charter constituted a compromise that has left many controversies unresolved. Second, subsequent practice has given rise to other issues that were never addressed by the initial drafters of the text.

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                                                                  • Boisson de Chazournes, Laurence. “Les relations entre organisations regionales et organisations universelles.” Recueil des cours 347 (2010): 79–406.

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                                                                    Offers an in-depth assessment of the relations between regional and universal organizations, especially the UN. Using a rigorous method and a strict methodology, Boisson de Chazournes considers that the monopoly of the Security Council to authorize the use of force has not been weakened by recent practice.

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                                                                    • de Wet, Erika. “The Relationship between the Security Council and Regional Organizations during Enforcement Actions under Chapter VII of the United Nations Charter.” Nordic Journal of International Law 71 (2002): 1–37.

                                                                      DOI: 10.1163/157181002400497849Save Citation »Export Citation »E-mail Citation »

                                                                      De Wet views the powers of regional organizations to launch an enforcement action in restrictive terms. According to the text and spirit of Article 53, the Security Council must authorize the action and remain in control of it. The regional action would become unlawful as soon as it would not be supported by all five permanent members.

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                                                                      • Kolb, Robert. “Article 53.” In La Charte des Nations Unies. 3d ed. Edited by Jean-Pierre Cot, Alain Pellet, and Mathias Forteau, 1403–1437. Paris: Economica, 2005.

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                                                                        Kolb supports a restrictive interpretation of Article 53 of the UN Charter. Concerning Article 4(h) of the Constitutive Act of the African Union (AU), he considers that it empowers this organization to act in the territory of its member states (contrary to the OAU), but without negating the necessity of obtaining an authorization from the Security Council for any enforcement action.

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                                                                        • Simma, Bruno. “NATO, the UN and the Use of Force: Legal Aspects.” European Journal of International Law 10.1 (1999): 1–29.

                                                                          DOI: 10.1093/ejil/10.1.1Save Citation »Export Citation »E-mail Citation »

                                                                          Published just after the launch of the military campaign against Yugoslavia, this article is based on the distinction between moral and legal considerations. Legally, it would be dangerous to undermine the well-established principle of the authority of the Security Council on regional organizations, however legitimate an action might be.

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                                                                          • Villani, Ugo. “Les rapports entre l’ONU et les organisations régionales dans le domaine du maintien de la paix.” Recueil des Cours 290 (2001): 225–436.

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                                                                            Assesses the evolution of the scope of regionalism in the UN Charter, from the travaux préparatoires to the 21st century. Includes reflection about what constitutes a “regional agency,” the relation between Chapter VIII and collective self-defense, the development of peacekeeping operations, and the more recent problems of Presumed and ex post facto Authorizations.

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                                                                            • Walter, Christian. Vereinte Nationen und Regionalorganisationen: Eine Untersuchung zu Kapitel VIII der Satzung der Vereinten Nationen. Berlin: Springer, 1996.

                                                                              DOI: 10.1007/978-3-642-61143-8Save Citation »Export Citation »E-mail Citation »

                                                                              Detailed analysis of many aspects of the topic. Walter develops an original view, arguing in favor of a “right of emergency” for regional organizations in the event that the Security Council fails to take action in situations of gross human rights violations.

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                                                                              • Yusuf, Abdulqawi. “The Right of Intervention by the African Union: A New Paradigm in Regional Enforcement Action?” African Yearbook of International Law 11 (2003): 3–21.

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                                                                                Yusuf conceives the new AU legal regime as an adaptation to new African realities, due in particular to the erosion of the “absolute sovereignty” doctrine. He emphasizes the consequences of the right of intervention enshrined in Article 4(h) of the AU Constitutional Act, which he views as an autonomous legal basis.

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                                                                                Presumed and ex post facto Authorizations

                                                                                As previously stated, the UN Charter does not precisely define the conditions and modalities of the authorization process. In practice, the Security Council has used the (“all”) “necessary means” formula to declare its willingness to delegate the use of force. However, some works—Wedgwood 2000, Walter 2002, and Osterdahl 2005—consider that others possibilities can be deduced from recent practice. An authorization could be inferred from certain statements (such as a mere qualification of a threat to peace) made by the Security Council before the intervention. A second possibility would be to infer it from others statements (such as a general approbation of the consequences of the military action) made ex post facto. Authors of other works—Lobel and Ratner 1999, Denis 1998, Krisch 1999, Kohen 2003, and Kreipe 2009—stress the difficulty in presuming an authorization that was not previously put to a vote according to Article 27 of the Charter and consider that no precedent has led to such a radical transformation of the collective security mechanisms.

                                                                                • Denis, Catherine. “La résolution 678 (1990) peut-elle légitimer les actions armées menées contre l’Iraq postérieurement à l’adoption de la résolution 687 (1991)?” Revue Belge de Droit International 31 (1998): 485–537.

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                                                                                  In-depth analysis of the existing resolutions governing the situation in Iraq in the 1990s. Strongly refutes the argument of an authorization deduced from resolutions adopted in 1990–1991 to justify military actions launched after the cease-fire. Denis bases her conclusion upon the text of the resolutions as well as a study of the debates surrounding their adoption within the Security Council.

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                                                                                  • Kohen, Marcelo. “The Use of Force by the United States after the End of the Cold War, and Its Impact on International Law.” In United States Hegemony and the Foundation of International Law. Edited by Michael Byers and Georg Nolte, 197–231. Cambridge, UK: Cambridge University Press, 2003.

                                                                                    DOI: 10.1017/CBO9780511494154Save Citation »Export Citation »E-mail Citation »

                                                                                    In this study dedicated to various jus contra bellum issues, Kohen claims that the theory of “presumed” or “implied” authorization has never been accepted in the practice of states, notably in the Kosovo case. He also considers that the ex post facto argument is a purely doctrinal one, as no states (even those that use force) have actually invoked it.

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                                                                                    • Kreipe, Nils. Les autorisations données par le Conseil de sécurité des Nations Unies à des mesures militaires. Paris: Librairie Générale de Droit et de Jurisprudence, 2009.

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                                                                                      In the second part of this book, Kreipe shows that the implied authorization argument has never been accepted in practice, notably in the Kosovo and the Iraqi cases. However, nothing compels the Security Council to use a particular formula to authorize a use of force.

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                                                                                      • Krisch, Nico. “Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council.” Max Planck Yearbook of United Nations Law 3 (1999): 59–103.

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                                                                                        Krisch notes that military actions against Iraq and Yugoslavia were based on an official determination of a common interest by the Security Council. However, the texts of the Security Council resolutions were too vague to provide any authorization. The manner in which the actions have been taken has therefore severely damaged the system of collective security of the UN Charter.

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                                                                                        • Lobel, Julian, and Michael Ratner. “Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease Fires and the Iraqi Inspection Regime.” American Journal of International Law 93.1 (1999): 124–154.

                                                                                          DOI: 10.2307/2997958Save Citation »Export Citation »E-mail Citation »

                                                                                          First article specifically dedicated to the matter. Lobel and Ratner assess US and British military operations in Iraq after the conclusion of a cease-fire. They contend that explicit Security Council authorization remains necessary and argue in favor of a restrictive interpretation of the resolutions adopted.

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                                                                                          • Osterdahl, Inger. “Preach What You Practice: The Security and the Legalisation ex post facto of the Unilateral Use of Force.” Nordic Journal of International Law 74 (2005): 231–260.

                                                                                            DOI: 10.1163/1571810054929440Save Citation »Export Citation »E-mail Citation »

                                                                                            Good example of the ex post facto authorization doctrine. Osterdahl argues that this new sort of legal mechanism would emerge from recent practice (Kosovo, Afghanistan, Iraq, and Liberia). Such a practice would carry greater legal weight than the professed intention not to legalize the preceding unilateral intervention.

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                                                                                            • Walter, Christian. “Security Council Control over Regional Actions.” Max Planck Yearbook of United Nations Law (2002): 535–557.

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                                                                                              Walter studies the rebirth of cooperation between the UN and regional organizations in the 1990s. He contends that this practice has revealed new forms of relations, opening the door to implied or even ex post facto authorizations.

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                                                                                              • Wedgwood, Ruth. “Unilateral Action in the UN System.” European Journal of International Law 11.2 (2000): 239–259.

                                                                                                DOI: 10.1093/ejil/11.2.349Save Citation »Export Citation »E-mail Citation »

                                                                                                Wedgwood considers that the UN system, conceived in 1945, is clearly not sufficient to address contemporary issues. She contends that Article 53 is not unambiguous and that state practice has led to the acceptance of some limited unilateral actions in the framework of the UN multilateral system.

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                                                                                                Self-Defense

                                                                                                Self-defense constitutes a highly controversial aspect of jus contra bellum. While its legitimacy is generally recognized, many problems of interpretation sharply divide international lawyers. A good start in understanding the difficulties surrounding the matter can be made in reading the resolution on self-defense adopted by the Institute of International Law in 2007, in Santiago, Chile. Even though it can be considered as offering some precisions on the short text of Article 51 of the UN Charter, this resolution is particularly ambiguous on many aspects. Thus, it is crucial to consider some of the numerous studies published on this topic. In additional to citing general writings, several contemporary debates will be considered in sections on nonstate actors and indirect aggression, anticipatory self-defense, necessity, and proportionality. Here again, the general picture reveals a deep division between writers who favor an extensive conception of this right and authors who prefer to interpret it restrictively.

                                                                                                General Characteristics

                                                                                                The following studies provide a broad overview of the history and evolution of self-defense, relations with the powers of the Security Council, conditions and limits of collective self-defense, and the definition of an armed attack as well as other points that will be considered below. Randelzhofer 2012 constitutes a clear and concise introduction. Waldock 1952, Bowett 1958, Teplitz 1995, and Ruys 2010 are examples of a rather extensive interpretation of self-defense. By contrast, Sicilianos 1990, Kamto 2010, and, to a lesser extent, Alexandrov 1996 develop a stricter conception. Finally, it must be recalled that all the books dedicated to jus contra bellum contain substantial developments on self-defense (see General Overviews, in particular Dinstein 2011).

                                                                                                • Alexandrov, Stanimir A. Self-Defense against the Use of Force in International Law. The Hague: Kluwer, 1996.

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                                                                                                  Conceives of self-defense as an interim measure of protection subsidiary to collective security mechanisms. Alexandrov develops a rather restrictive conception, based on the text of Article 51 and on an assessment of abundant practice. Nevertheless, he admits the legitimacy of anticipative self-defense in the case of an imminent threat.

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                                                                                                  • Bowett, Derek W. Self-Defence in International Law. Manchester, UK: Manchester University Press, 1958.

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                                                                                                    Classic illustration of an extensive interpretation of this right. Bowett views self-defense as an inherent right to carry out operations against any danger, actual or imminent, in order to protect nationals or even, in exceptional circumstances, economic interests.

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                                                                                                    • Kamto, Maurice. L’agression en droit international. Paris: Pedone, 2010.

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                                                                                                      Kamto focuses on the concept of aggression, and thus indirectly on the right to self-defense. His book provides an example of an African position on the subject, which is clearly reluctant to admit new possibilities to use force in the name of self-defense.

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                                                                                                      • Randelzhofer, Albrecht. “Article 51.” In The Charter of the United Nations: A Commentary. 3d ed. Edited by Bruno Simma, 788–806. Oxford: Oxford University Press, 2012.

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                                                                                                        Inescapable introduction providing a general assessment of the various questions raised by the interpretation of Article 51 of the UN Charter.

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                                                                                                        • Ruys, Tom. “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice. Cambridge, UK: Cambridge University Press, 2010.

                                                                                                          DOI: 10.1017/CBO9780511779527Save Citation »Export Citation »E-mail Citation »

                                                                                                          In-depth analysis of self-defense, founded on extensive research covering abundant state practice and official positions from 1945 to 2010. Even if he uses a rather positivist method, Ruys concludes in favor of a broad definition of self-defense, which is reproduced at the end of the book as a model to be accepted, he hopes, by states.

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                                                                                                          • Sicilianos, Linos-Alexandre. Les réactions décentralisées à l’illicite: Des contre-mesures à la légitime défense. Paris: Librairie Générale de Droit et de Jurisprudence, 1990.

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                                                                                                            Good example of a classical restrictive approach, published at the end of the Cold War. Nevertheless, Sicilianos addresses numerous issues that are still relevant, such as indirect aggression and anticipatory self-defense, among others.

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                                                                                                            • Teplitz, Robert F. “Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?” Cornell International Law Journal 28.3 (1995): 569–617.

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                                                                                                              Good example of a radical expansionist conception of self-defense, justifying the US bombing of Baghdad in 1993 on this ground. According to the author, in the case at hand, a mere assassination attempt was sufficient to make Article 51 of the UN Charter applicable.

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                                                                                                              • Waldock, C. H. M. “The Regulation of the Use of Force by Individual States in International Law.” Recueil des Cours 81 (1952): 455–517.

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                                                                                                                Waldock argues that the Charter cannot be used to restrain the general customary right to self-defense. That right can therefore be validly invoked to justify a riposte to an illegal use of force not constituting an “armed attack.” Neither does it prohibit anticipatory self-defense in accordance with the Caroline doctrine.

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                                                                                                                Nonstate Actors and Indirect Aggression

                                                                                                                The problem of indirect aggression is far from new. After having been discussed under the League of Nations, it gave rise to sharp debates before the UN General Assembly, which eventually led to the adoption of a definition of aggression in 1974. According to this definition, considered by the ICJ as reflecting customary international law, an aggression is a use of force by a state against another state. However, if a nonstate actor using force against a state is sent by another state, or if there is a “substantial involvement” of this state in the attack, the armed attack can be cited within the meaning of Article 51 of the UN Charter. This scenario was reaffirmed and applied by the ICJ in classic (Nicaragua) and recent (Wall advisory opinion, DRC-Uganda) decisions (see International Court of Justice 1986, International Court of Justice 2004, and International Court of Justice 2005, all cited under Judicial Decisions). It was also confirmed in Kampala, Uganda, when the member states of the International Criminal Court adopted a definition of aggression that included the requirements as set forth in 1974. However, particularly after the terrorist attacks of 9/11, many scholars have argued in favor of a new interpretation of the “armed attack” condition. This trend, which is illustrated in Reisman 1999, Tams 2009, Lubell 2010, and Reinold 2011, has taken two different forms. First, it has been contended that self-defense could be used against states but also against nonstate actors, a possibility that would not be precluded by the text of Article 51. Second, a broadening of the concept of indirect aggression was proposed after the launch of the war against Afghanistan in October 2001. According to some authors, any violation of the obligation not to support terrorist or armed activities would be equivalent to an armed attack triggering self-defense in favor of the victim state. This doctrinal trend has been refuted by many authors, who consider that the Security Council remains the only body competent to use force, or to authorize its use, if the strict conditions enshrined in Article 51 and GA Resolution 3314 are met. Nollkaemper 2005, Klein 2007, Williamson 2009, and Corten 2010 thus consider that the conditions set forth in the Charter have not been radically changed by recent practice.

                                                                                                                • Corten, Olivier. “Self-Defence against Terrorists: What Can Be Learned from Recent Practice, 2005–2010?” Journal of International Law and Diplomacy 109 (2010): 129–152.

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                                                                                                                  Extensive overview of practice from 2005 to 2010. Using a strict methodology, the author considers that the 2005 World Summit Outcome Document, in which states have reaffirmed a classical conception of self-defense, has not been challenged thereafter.

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                                                                                                                  • Klein, Pierre. “Le droit international à l’épreuve du terrorisme.” Recueil des Cours 321 (2007): 209–484.

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                                                                                                                    In the part of his course at The Hague Academy of International Law dedicated to jus contra bellum, Klein states that the doctrinal trend aiming at relaxing classical rules of international law has failed. No recent text nor universal opinio juris has led to a modification of the rule enshrined in Article 3(g) of the 3314 (XXIX) Resolution of the General Assembly.

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                                                                                                                    • Lubell, Noam. Extraterritorial Use of Force against Non-state Actors. Oxford: Oxford University Press, 2010.

                                                                                                                      DOI: 10.1093/acprof:oso/9780199584840.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                      Good example of a broad interpretation of Article 51 of the Charter, arguing that self-defense can be exercised against nonstate actors. The thesis is grounded on classical precedents such as the Caroline doctrine and on the position of a few intervening states in the last few years, which should override the opposite ICJ statement in the Wall advisory opinion.

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                                                                                                                      • Nollkaemper, André. “Attribution of Forcible Acts to States: Connections between the Use of Force and the Law of State Responsibility.” In The Security Council and the Use of Force, Theory and Reality: A Need for Change? Edited by Niels Blokker and Nico Schrijver, 133–171. Leiden, The Netherlands: Martinus Nijhoff, 2005.

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                                                                                                                        Nollkaemper argues in favor of the classic test of attribution to address the problem of indirect aggression. According to him, recent practice has not led to a clear weakening of this test, even if, on the other hand, the substantial involvement criterion could cover particular forms of harboring irregular groups.

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                                                                                                                        • Reinold, Theresa. “State Weakness, Irregular Warfare, and the Right to Self-Defense Post 9/11.” American Journal of International Law 105.2 (2011): 244–286.

                                                                                                                          DOI: 10.5305/amerjintelaw.105.2.0244Save Citation »Export Citation »E-mail Citation »

                                                                                                                          According to the author, when states are unable of unwilling to avoid their territories are used by terrorists as safe havens, a broad conception of self-defense has been recognized in recent practice.

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                                                                                                                          • Reisman, Michael. “International Legal Responses to Terrorism.” Houston Journal of International Law 22.1 (1999): 3–61.

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                                                                                                                            Written at the end of the last century, this article contains all the arguments that would be developed after 9/11 in American literature: preemptive action, intervention against a state unable or unwilling to combat terrorism or action against a nonstate actor. Reisman founds his conclusions on an assessment of international practice, from the Caroline incident to the 1998 US operations against Sudan and Afghanistan.

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                                                                                                                            • Tams, Christian. “The Use of Force against Terrorists.” European Journal of International Law 20.2 (2009): 359–397.

                                                                                                                              DOI: 10.1093/ejil/chp031Save Citation »Export Citation »E-mail Citation »

                                                                                                                              In-depth analysis of existing practice and case law that, according to this author, reveals the increasing importance of the issues of necessity and proportionality. Against this background, the traditional and strict rules of attribution should be relaxed. Tams, however, admits that this trend “may require further consolidation before bringing a readjustment of the law.”

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                                                                                                                              • Williamson, Myra. Terrorism, War and International Law: The Legality of the Use of Force against Afghanistan in 2001. Farnham, UK: Ashgate, 2009.

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                                                                                                                                In this impressive work founded on a strong historical backdrop, Williamson analyzes the main precedent generally used to support an extensive conception of self-defense. She challenges the dominant view according to which the US-led intervention in Afghanistan would have broadened the traditional interpretation of Article 51 of the UN Charter, especially against states tolerating terrorist activities.

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                                                                                                                                Anticipatory Self-Defense

                                                                                                                                The growing danger posed by the development of nuclear weaponry and by the increasing activity of terrorist movements, especially after 9/11, has led to a revival of the classical controversy between those who consider that a threat can, under certain circumstances, trigger the right to self-defense, and those who refute this possibility as incompatible with the text and spirit of the UN Charter. Particularly among American scholars, some have argued that self-defense could be exercised not only in the case of an “imminent threat” (a formula that can be traced to the famous Caroline incident), but also when confronted with a more hazy threat, sometimes characterized as indirect or latent. This view appeared in the document on national security strategy, issued by the George W. Bush administration in the aftermath of the terrorist attacks of 11 September 2001. In 2004, this approach was partially refuted by the Secretary-General of the UN and by the UN High-Level Panel on Threats, Challenges and Change. UN officials affirm that self-defense is admissible only if an armed attack occurs or if there is an imminent threat of such an attack. Nevertheless, this limited form of anticipatory self-defense was neither accepted nor specifically rejected by states in the 2005 World Summit Outcome Document. Against this background, it is not surprising that existing texts and relevant practice have given rise to conflicting interpretations on this specific point. Furthermore, practice does not provide additional indication, as anticipative, preventive, or preemptive self-defense are doctrinal expressions that are not used—and even less accepted—by states in particular cases. In the following studies, one can find examples of extensive (Sofaer 2003, Shah 2007, Guiora 2008, Tibori Szabo 2011) and restrictive (Bothe 2003, Laghmani 2004, Christakis 2005, Hamid 2007) conceptions of self-defense in regard to this ratione temporis issue. Finally, it must be pointed out that some authors (notably Dinstein 2011, cited under General Overviews) consider that the real question is not the existence of the “armed attack” condition, which could not be challenged, even in the nuclear area. The real problem is to determine the exact moment that the armed attack begins, a moment that would trigger a right to self-defense even before the attack has caused any material effects on the territory of the state targeted.

                                                                                                                                • Bothe, Michael. “Terrorism and the Legality of Pre-emptive Force.” European Journal of International Law 14.2 (2003): 227–240.

                                                                                                                                  DOI: 10.1093/ejil/14.2.227Save Citation »Export Citation »E-mail Citation »

                                                                                                                                  Bothe tackles the issue by using the principles of interpretation enshrined in the Vienna Convention on the Law of Treaties. This leads him, unsurprisingly, to reject the threat as a trigger to the right of self-defense. In this case, the Charter prescribes the multilateral option by giving competence to the Security Council to take necessary measures.

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                                                                                                                                  • Christakis, Théodore. “Existe-t-il un droit de légitime défense en cas de simple ‘menace’? Une réponse au ‘groupe de personnalités de haut niveau’ de l’ONU.” In Les métamorphoses de la sécurité collective: Droit, pratique et enjeux stratégiques; Journées franco-tunisiennes; Actes des journées d’études de Hammamet, Tunisie, organisée les 24 et 25 juin 2004. Edited by the Société française pour le droit international and the Association tunisienne de science politique, 197–222. Paris: Pedone, 2005.

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                                                                                                                                    This article strongly criticizes the High-Level Panel Report on Threats, Challenges and Change. After having carefully studied recent and old practice, Christakis considers that this report cannot be supported by any text or precedent. Self-defense has never been accepted to cover a response to a threat, whether imminent or not.

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                                                                                                                                    • Guiora, Amos N. “Anticipatory Self-Defence and International Law: A Re-evaluation.” Journal of Conflict & Security Law 13.1 (2008): 2–24.

                                                                                                                                      DOI: 10.1093/jcsl/krn017Save Citation »Export Citation »E-mail Citation »

                                                                                                                                      Guiora starts by asserting that 9/11 has showed the need “to re-articulate international law.” Existing rules do not address the issue of preemptive or anticipatory actions against nonstate actors. New principles and legal criteria should be established to “legalise antiterrorism.” Good example of a study in which de lege lata and de lege ferenda considerations are not always easy to distinguish. Available online by subscription.

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                                                                                                                                      • Hamid, Abdul Ghafur. “The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Re-appraisal.” Netherlands International Law Review 54 (2007): 441–490.

                                                                                                                                        DOI: 10.1017/S0165070X0700441XSave Citation »Export Citation »E-mail Citation »

                                                                                                                                        Another example of a strict methodology focusing on the text of Article 51 and on the absence of actual practice in favor of anticipatory self-defense. In this context, Hamid considers that the Caroline incident cannot be invoked in contemporary international law.

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                                                                                                                                        • Laghmani, Slim. “La doctrine américaine de la preemptive self-defense.” In Le droit international à la croisée des chemins: Force du droit et droit de la force. Edited by Rafaa Ben Achour and Slim Laghmani, 137–140. Paris: Pedone, 2004.

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                                                                                                                                          Laghmani carefully studies the various formulae (preemptive, preventive, anticipatory, etc.) used by some scholars to broaden the right to self-defense. He stresses the inability to combine all those formulae with the ordinary meaning of Article 51 of the Charter (“if an armed attack occurs”).

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                                                                                                                                          • Shah, Niaz A. “Self-Defence, Anticipatory Self-Defence and Pre-emption: International Law’s Response to Terrorism.” Journal of Conflict & Security Law 12.1 (2007): 95–126.

                                                                                                                                            DOI: 10.1093/jcsl/krm006Save Citation »Export Citation »E-mail Citation »

                                                                                                                                            Good illustration of the position rejecting a broad preemptive self-defense, but accepting the notion of riposte to a “real and imminent” threat. Shah argues that this is the only realistic interpretation, especially after the 9/11 events. Available online by subscription.

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                                                                                                                                            • Sofaer, Abraham D. “On the Necessity of Pre-emption.” European Journal of International Law 14.2 (2003): 209–226.

                                                                                                                                              DOI: 10.1093/ejil/14.2.209Save Citation »Export Citation »E-mail Citation »

                                                                                                                                              Excellent illustration of the tendency of some scholars to focus on the “necessity” criterion. A mechanical reading of the wording of the Charter must be rejected as an unwarranted and artificially narrow method. The establishment of the limits of self-defense depends on an ad hoc assessment taking into account all the particularities of the case at hand.

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                                                                                                                                              • Tibori Szabo, Kinga. Anticipatory Self-Defense in International Law: Essence and Limits under International Law. The Hague: Springer, 2011.

                                                                                                                                                DOI: 10.1007/978-90-6704-796-8Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                Good example of a view supporting anticipatory self-defense in international law, founded on the prevalent relevance of the Caroline precedent and on an extensive interpretation of the post-Charter practice.

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                                                                                                                                                Necessity, Proportionality, and Relations with the Security Council

                                                                                                                                                To be in accordance with international law, a measure of self-defense must be “necessary” and “proportionate” to the armed attack to which it responds. These twin requirements are unanimously recognized by scholars and are recalled in the existing judicial decisions taken with regard to the Nicaragua, Nuclear Weapons, Oil Platforms, and Armed Activities on the Territory of the Congo cases (International Court of Justice 1986, International Court of Justice 1996, International Court of Justice 2003, International Court of Justice 2005 [all cited under Judicial Decisions]). The problems lie in the definition of the “necessity” criterion. On the one hand, it cannot be defined too generally or abstractly, as its meaning is closely dependent on the circumstances of each case at hand. On the other hand, as it is a legal principle, it should be possible to establish general conditions to guide its interpretation. The difficulty of the matter is illustrated in the works of Judith Gardam (Gardam 2004, Gardam 1993). A first precision appears in the text of Article 51 of the UN Charter, which clearly suggests that, if the Security Council has taken “the measures necessary to maintain international peace and security,” self-defense is no longer necessary. Of course, this leaves open the requirement of determining when the Council has taken such measures. The problem was debated in the aftermath of the 1991 Gulf War, which spawned a renewal of the question of the relations between self-defense and collective security measures. A reading of the classic article Kelsen 1948 must therefore be completed by reading Greig 1991 and Sicilianos 1995. The issue of necessity gave rise also to controversies in the context of the war against terror. Some works, such as Trapp 2007, consider that this criterion opens the way to extended possibilities to use force against terrorist groups, whereas others, such as Cannizaro 2006, view proportionality in a narrower fashion. Finally, some works (such as Franck 2008) argue that proportionality contains similar characteristics in different spheres of international law.

                                                                                                                                                • Cannizaro, Enzo. “Contextualizing Proportionality: Jus ad bellum and Jus in bello in the Lebanese War.” International Review of the Red Cross 83 (2006): 779–792.

                                                                                                                                                  DOI: 10.1017/S1816383107000896Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                  Cannizaro shows that proportionality in jus contra bellum obeys a logic different from the same principle in jus in bello. However, in certain situations, it seems difficult to separate them sharply. Indeed the disproportion of an attack according to jus in bello can be taken into account to assess the proportionality according to jus contra bellum.

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                                                                                                                                                  • Franck, Thomas. “On Proportionality of Countermeasures in International Law.” American Journal of International Law 102 (2008): 715–767.

                                                                                                                                                    DOI: 10.2307/20456680Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                    Interesting analysis dedicated to the proportionality principle, comparing it in different fields: jus contra bellum, jus in bello, and nonmilitary countermeasures. In each case, proportionality limits the possible riposte to a previous violation of international law.

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                                                                                                                                                    • Gardam, Judith. “Proportionality and Force in International Law.” American Journal of International Law 87 (1993): 391–413.

                                                                                                                                                      DOI: 10.2307/2203645Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                      Previous and more limited version of what will become Gardam 2004. However, interesting as the first in-depth article on the topic.

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                                                                                                                                                      • Gardam, Judith. Necessity, Proportionality and the Use of Force by States. Cambridge, UK: Cambridge University Press, 2004.

                                                                                                                                                        DOI: 10.1017/CBO9780511494178Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                        The most complete study addressing various aspects of the matter. Gardam shows how necessity and proportionality legally restrain the use of force. Every measure has to be established as a “defense” meant to respond to the armed attack suffered. Contemporary self-defense must not be confused with reprisal or punitive actions.

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                                                                                                                                                        • Greig, Don W. “Self-Defence and the Security Council: What Does Article 51 Require?” International & Comparative Law Quarterly 40.2 (1991): 366–402.

                                                                                                                                                          DOI: 10.1093/iclqaj/40.2.366Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                          In-depth analysis of the relations between self-defense and the Security Council, founded on an assessment of the travaux préparatoires of the Charter, on subsequent texts, and on relevant practice and case law (mainly the Nicaragua case). Addresses the reporting requirement and the question of the duration of self-defense in regard to the Charter.

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                                                                                                                                                          • Kelsen, Hans. “Collective Security and Collective Self-Defense under the Charter of the United Nations.” American Journal of International Law 42 (1948): 783–796.

                                                                                                                                                            DOI: 10.2307/2193350Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                            In this classic work, Kelsen stresses the supremacy of the collective security system over unilateral acts of war. Self-defense is admissible only as a temporary and subsidiary measure, which should stop as soon as the Security Council has taken appropriate measures.

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                                                                                                                                                            • Sicilianos, Linos-Alexandre. “Le contrôle par le Conseil de sécurité des actes de légitime défense.” In Le chapitre VII de la Charte des Nations Unies. Edited by the Société française pour le droit international, 59–95. Paris: Pedone, 1995.

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                                                                                                                                                              Sicilianos distinguishes between actions authorized by the Security Council, on the one hand, and measures of self-defense, on the other. Only the former can properly be controlled by the Council, whereas the latter appear difficult to manage as self-defense is conceived and exercised like a unilateral action.

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                                                                                                                                                              • Trapp, Kimberly N. “Back to Basics: Necessity, Proportionality and the Right to Self-Defence against Non-state Terrorist Actors.” International & Comparative Law Quarterly 56.1 (2007): 141–156.

                                                                                                                                                                DOI: 10.1093/iclq/lei153Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                Trapp contends that recent practice reveals a trend to accept the legality of armed measures against terrorist groups on the ground of necessity. Accordingly, crossing the border of a state unable or unwilling to act against such groups would be permissible under contemporary international law.

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                                                                                                                                                                Humanitarian Intervention

                                                                                                                                                                The idea of justifying a military action on grounds of humanity is far from new. It was already present in the “just war” classical doctrines, and was often evoked in the second half of the 19th century in relation to Western interventions in the collapsing Ottoman Empire. Rougier 1910 is characteristic of the international law prevailing at that time. After the adoption of the UN Charter, the argument was obviously more difficult to sustain. However, some works, such as Tesón 1997, posit that a humanitarian intervention does not constitute a use of force “against the territorial integrity or political independence” of a state, and therefore, it is not prohibited by Article 2(4). Others works, such as Akehurst 1984, refute this thesis, and invoke the relevant practice showing the reluctance of states to admit military interventions supposedly motivated by the wish to protect human rights (e.g., the Vietnamese intervention in Cambodia in 1979). The debate was reactivated after the end of the Cold War. To some writers, the “new world order” is characterized by tolerance (Bettati and Kouchner 1987), whereas others (Chesterman 2001, Murphy 1996, and Mani 2005) stress that the official justifications were not grounded on a new right of intervention but rather on classic arguments such as consent (e.g., in Liberia) or authorization by the Security Council (e.g., in Libya). At the beginning of the 21st century, just after the war in Kosovo, the issue was brought before the General Assembly by the UN Secretary-General. A great majority of states (notably the G77 and the Non-aligned Movement) expressly rejected any possibility of introducing a “right of humanitarian intervention” in contemporary international law. This persistent reluctance of the Third World to envisage any renewal of just war theories is well illustrated in the lectures at The Hague Academy of International Law given by V. S. Mani (Mani 2005). Eventually the “responsibility to protect” principle was introduced in the 2005 World Summit Outcome Document (GA Resolution 60/1). However, as Hajjami 2013 points out, this concept simply codified existing international law in stressing the primary responsibility of the territorial state to ensure respect for human rights. It is only if this state is unable or unwilling to act that the Security Council can take all measures it may deem necessary, in conformity with Chapter VII of the UN Charter. This “responsibility to protect” (R2P) can be understood as a codification of the practice, beginning in the 1990s, according to which the Security Council is able to authorize military actions to end humanitarian catastrophes (Somalia, Bosnia-Herzegovina, Rwanda).

                                                                                                                                                                • Akehurst, Michael. “Humanitarian Intervention.” In Intervention in World Politics. Edited by Hedley Bull, 95–105. Oxford: Clarendon, 1984.

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                                                                                                                                                                  Akehurst considers that a more effective international machinery for the protection of human rights is needed. However, to promote a right of humanitarian intervention is not appropriate and not in conformity with existing practice, which reveals no general agreement between states on that point.

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                                                                                                                                                                  • Bettati, Mario, and Bernard Kouchner, eds. Le devoir d’ingérence. Paris: Denoël, 1987.

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                                                                                                                                                                    This book launched the idea of a “devoir d’ingérence,” which gave rise to various debates in the French-speaking literature. It is not easy to determine the part played by law in this moral imperative but, in general, the trend seems to be to challenge the classical concept of sovereignty in the name of the protection of the victims.

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                                                                                                                                                                    • Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. Oxford: Oxford University Press, 2001.

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                                                                                                                                                                      Chesterman studies the idea of humanitarian intervention from its origins until the beginning of the 21st century. Given the increasing role of the Security Council in authorizing military actions to protect human rights, he argues that the idea of a unilateral right can no longer be supported.

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                                                                                                                                                                      • Hajjami, Nabil. La responsabilité de protéger. Brussels: Bruylant, 2013.

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                                                                                                                                                                        Hajjami provides an in-depth analysis of the origins of R2P, its drafting in GA Res 60/1 and its utilization in subsequent practice. Based on a strict positivist approach, this book supports a restrictive view, stressing the necessity for any foreign intervention to be authorized by the UN Security Council.

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                                                                                                                                                                        • Mani, V. S. “‘Humanitarian’ Intervention Today.” Recueil des Cours 313 (2005): 9–324.

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                                                                                                                                                                          Beyond the generous ideas supported by its promoters, Mani denounces humanitarian intervention as a modern form of gunboat diplomacy. Under an institutionalized international law, the Security Council is recognized as the only authority legally and morally able to authorize humanitarian interventions.

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                                                                                                                                                                          • Murphy, Sean D. Humanitarian Intervention: The United Nations in an Evolving World Order. Philadelphia: University of Pennsylvania Press, 1996.

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                                                                                                                                                                            This book contains an in-depth overview of a wide range of precedents. Murphy contends that unilateral armed intervention finds little support in the text of the UN Charter or in state practice. Since the beginning of the 1990s, the Security Council is generally considered the appropriate body to decide on, and to conduct, humanitarian actions.

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                                                                                                                                                                            • Rougier, Antoine. “La théorie de l’intervention d’humanité.” Revue générale de Droit International Public 17.1 (1910): 468–526.

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                                                                                                                                                                              In this classic article, Rougier defines the criteria conditioning the legal validity of a humanitarian intervention, notably the sincerity of the objective and the proportionality of the measures undertaken. He also points out the obligation to lead a “collective action” even if, at the time that he wrote, no international organization existed that was able to conduct it.

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                                                                                                                                                                              • Tesón, Fernando. Humanitarian Intervention: An Inquiry into Law and Morality. 2d ed. New York: Transnational Publishers, 1997.

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                                                                                                                                                                                Tesón argues in favor of an a contrario interpretation of Article 2(4) of the UN Charter, which would not prohibit interventions strictly confined to the protection of human rights. This possibility would be both permitted in law and imposed by morality, as demonstrated in the second part of the book.

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                                                                                                                                                                                Armed Interventions in Protection of Nationals

                                                                                                                                                                                Armed interventions in protection of nationals can be considered as a special kind of “humanitarian intervention,” as the goal is in both cases to safeguard endangered persons. It gives rise to the same problems, namely, apparent contradiction with the prohibition laid down in Article 2(4) of the Charter (see the opposite view in Bowett 1962) and absence of precedents showing a general acceptance of this so-called right (Akehurst 1977). Actually, a practice exists, but military operations are often grounded on the consent of the territorial state (as revealed in Zedalis 1990). In other cases (e.g., the 1976 Israeli raid in Entebbe), the action is officially based on Article 51 of the UN Charter, but it is difficult to establish that this interpretation has been universally accepted. The broad condemnation of the Entebbe raid is certainly a good indication of the traditional state of international law. In 2000, John Dugard, the International Law Commission (ILC) special rapporteur on diplomatic protection, proposed an article permitting a military action to protect nationals in exceptional circumstances. His proposition was sharply criticized by other ILC members and by member states of the Sixth Commission of the General Assembly. The final text clearly excludes the military option in emphasizing the necessity to use peaceful means to resolve any dispute (see Ruys 2008). Finally, it seems that an armed rescue operation is possible only if (a) the territorial state has consented to it or, (b) there has been a genuine “armed attack” directed against the nationals of a state of such an amplitude that this would trigger a right to self-defense in accordance with the conditions laid down in Article 51 of the Charter. The first possibility is often used in practice, whereas the second seems rather theoretical. Another possibility is to consider that the operation is so limited that it would not be contrary to the peremptory norm prohibiting the use of force. Based on this latter hypothesis, the operation could be justified in exceptional circumstances by citing a state of necessity (see Ronzitti 1985, Schweisfurth 1980, and Raby 1988).

                                                                                                                                                                                • Akehurst, Michael. “The Use of Force to Protect Nationals Abroad.” International Relations 5.5 (1977): 3–23.

                                                                                                                                                                                  DOI: 10.1177/004711787700500501Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                  Good illustration of a restrictive position, showing the reluctance of states to admit a right to launch a military operation without the consent of the host state. Akehurst mainly refers to the existing practice, and notably the Entebbe precedent, that gave rise to sharp condemnations by a great number of states.

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                                                                                                                                                                                  • Bowett, Derek. “The Use of Force in the Protection of Nationals.” Transactions of the Grotius Society 43 (1962): 111–126.

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                                                                                                                                                                                    Good illustration of the classic thesis arguing in favor of a customary right to use force to protect nationals, which would not be inconsistent with Article 2(4) of the UN Charter. However, several conditions (imminence of danger, absence of alternative means) must be complied with.

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                                                                                                                                                                                    • Raby, Jean. “The State of Necessity and the Use of Force to Protect Nationals.” Canadian Yearbook of International Law 26 (1988): 253–272.

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                                                                                                                                                                                      Raby admits that an intervention for the protection of nationals a priori violates international law. However, necessity can preclude the wrongfulness of the act if the conditions laid down by the ILC in its work on international responsibility are met. In sum, legal rules must be interpreted in accordance with the necessities and needs of the international community.

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                                                                                                                                                                                      • Ronzitti, Natalino. Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity. Dordrecht, The Netherlands: Martinus Nijhoff, 1985.

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                                                                                                                                                                                        In-depth analysis of relevant texts and practice. Stresses the difference between a serious breach of Article 2(4) of the UN Charter and more targeted and limited actions. If the former is contrary to jus cogens, the latter is not. Consequently, certain armed operations to rescue nationals could be legally acceptable.

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                                                                                                                                                                                        • Ruys, Tom. “The ‘Protection of Nationals’ Doctrine Revisited.” Journal of Conflict & Security Law 13.2 (2008): 233–271.

                                                                                                                                                                                          DOI: 10.1093/jcsl/krn025Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                          Ruys considers that the current state of international law is deeply ambivalent. On the one hand, states show an increasing tolerance vis-à-vis unauthorized evacuation operations. But, on the other hand, they remain reluctant to codify a rule permitting military rescue actions, as the debates surrounding the ILC works on diplomatic protection have shown. Ruys therefore advocates propositions de lege ferenda to overcome the persistent legal difficulties. Available online by subscription.

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                                                                                                                                                                                          • Schweisfurth, Theodor. “Operations to Rescue Nationals in Third States Involving the Use of Force in Relation to the Protection of Human Rights.” German Yearbook of International Law 23 (1980): 159–180.

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                                                                                                                                                                                            This article stresses the importance of taking into account the human rights dimension of the matter. When the life of its nationals is endangered, a state would be bound by two conflicting obligations: to ensure respect for human rights, on the one hand, and to respect the territorial integrity of a third state, on the other. In exceptional circumstances, a short-term noncompliance with the latter should be allowed.

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                                                                                                                                                                                            • Zedalis, Rex J. “Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?” Texas International Law Journal 25 (1990): 209–270.

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                                                                                                                                                                                              This article explores the possibilities of justifying an operation to protect nationals in citing various arguments: not only absence of violation of Article 2(4), but also self-defense and intervention by invitation. The author also studies the theoretical dimensions of consent.

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                                                                                                                                                                                              History, Status, and Limits of the Rule

                                                                                                                                                                                              Beyond the various debates about the interpretation of the rule prohibiting the use of force and its exceptions, a substantial literature is dedicated to both the place and the limits of this rule in international relations. Numerous specialists in philosophy of law, history, and international relations have written books or articles dedicated to this question. With regard to international lawyers, several trends have been followed. Some writers have studied the problem in a historical perspective, stressing the rise and fall of just war traditions from the Middle Ages to the wording of the UN Charter. The general history in Neff 2005 and Verdebout 2014 offers good examples in providing extensive information and identifying its ambiguities in a subtly written narrative of this evolution. Others prefer to stress the variety of conceptions of the rule, showing that no unique epistemology or methodology can be proven to be the only valid or relevant one. Cannizaro and Palchetti 2005 is, in this way, truly significant, and lets us understand the differences of approaches already identified (see General Overviews). Another possibility is to debate the efficiency of Article 2(4) of the UN Charter. Some works, such as Franck 1970 and later Glennon 2001, contend that the rule has been so frequently and openly violated that it has become ineffective or even useless. Others, such as Henkin 1971, emphasize the persistent will of intervening states to invoke classic legal justifications, without ever claiming a general right to wage war. Finally, some authors (Kennedy 2006) depart from Henkin in refusing to assess the efficiency of the rule only in regard to its proclaimed goal. Rather, they view international law as a discourse able to justify or to combat war in particular cases. In this perspective, the rule could be considered to be “efficient” even if it does not preclude the persistence of wars.

                                                                                                                                                                                              • Cannizaro, Enzo, and Paolo Palchetti, eds. Customary International Law on the Use of Force: A Methodological Approach. Leiden, The Netherlands: Martinus Nijhoff, 2005.

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                                                                                                                                                                                                In this book, the editors have gathered numerous contributions in revealing the variety of methods available to assess customary international law on the use of force. General views about custom are complemented by more specific topics, such as those dedicated to the role of international organizations or to silence as a means to establish opinio juris.

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                                                                                                                                                                                                • Franck, Thomas. “Who Killed Article 2 (4)? or: Changing Norms Governing the Use of Force by States.” American Journal of International Law 64.5 (1970): 809–837.

                                                                                                                                                                                                  DOI: 10.2307/2198919Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                  In this article published twenty-five years after the adoption of Article 2(4), Franck argues that Article 2(4) of the UN Charter has become an empty formula. Superpowers have used ambiguities and loopholes in its wording to pursue vigorous defense of their national interests, including by means of waging war.

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                                                                                                                                                                                                  • Glennon, Michael. Limits of Law, Prerogatives of Power: Interventionism after Kosovo. New York: Palgrave, 2001.

                                                                                                                                                                                                    DOI: 10.1057/9781403982537Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                    Since 1945, practice reveals massive and frequent violations of the prohibition on the use of force, notably in the 1999 war against Yugoslavia. Given this reality, to the extent that they pretend that the prohibition is still in force, international lawyers are compelled to look to words rather than deeds.

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                                                                                                                                                                                                    • Henkin, Louis. “The Reports of the Death of Article 2(4) Are Greatly Exaggerated.” American Journal of International Law 65.3 (1971): 544–548.

                                                                                                                                                                                                      DOI: 10.2307/2198975Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                      Henkin considers that the failures of Article 2(4) denounced by Franck are not so blatant. No one contests that there are fewer wars today than previously. Moreover, no state claims a right to invade another.

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                                                                                                                                                                                                      • Kennedy, David. Of War and Law. Princeton, NJ: Princeton University Press, 2006.

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                                                                                                                                                                                                        Kennedy argues that the Cold War and the later the War on Terror are formulae that tend to blur the classical distinction between war and peace. Law is not—or at least not only—a humanist force external to war. Rather, it is a tool used by the authorities to justify wars in (national or world) public opinion.

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                                                                                                                                                                                                        • Neff, Stephen C. War and the Law of Nations: A General History. Cambridge, UK: Cambridge University Press, 2005.

                                                                                                                                                                                                          DOI: 10.1017/CBO9780511494253Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                          This book offers an in-depth analysis of the history of the notion of war from Antiquity to the 21st century. Neff stresses the interplay between legal ideas about war, on the one hand, and the practices of war, on the other.

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                                                                                                                                                                                                          • Verdebout, Agatha. “The Contemporary Discourse on the Use of Force in the Nineteenth Century: A Diachronic and Critical Analysis.” Journal on the Use of Force in International Law 1.2 (2014): 223–246.

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                                                                                                                                                                                                            In this innovative article, Verdebout challenges the traditional conception according to which the prohibition of the use of force emerged only in the interwar period. This narrative, which developed after World War I, is indeed in contradiction with what stems from the sources of the time. Its success can be explained because it fits the image law has of itself as an element of human progress.

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