Journal on the Use of Force and International Law最新文献

{"title":"Anticipatory action in self-defence: essence and limits under international law","authors":"P. Dupont","doi":"10.1080/20531702.2017.1383062","DOIUrl":"https://doi.org/10.1080/20531702.2017.1383062","url":null,"abstract":"The controversies in international legal scholarship on the permissible modalities of use of self-defence by states have not ceased since the adoption of the Charter of the United Nations, which embodied in Article 51 the ‘inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. Divergent interpretations of Article 51 itself, and of the relation of the latter with the pre-existing customary (‘inherent’) right of self-defence arguably left ‘unimpaired’ by the Charter, result in uncertainties regarding the precise qualification, and thus the international legality, of most incidents since 1945 where self-defence has been actually invoked by states, often in relation to threats or imminent attacks. These incidents range from early claims of preventive self-defence of Pakistan in Kashmir in 1947–8, and of Israel in 1948, to the recent case of intervention of the Arab coalition led by Saudi Arabia in Yemen in 2015. This uncertainty in turn can be said to undermine the international rule of law, and has thus understandably long attracted the attention of legal scholars. The book under review is structured in three parts: Part I is devoted to preCharter customary international law on self-defence, and Part II to postCharter customary international law. Part III then builds on the findings of parts I and II to set out conclusions on the legality of anticipatory action in self-defence, as well as its limits. The author of Anticipatory Action in Self-Defence: Essence and Limits under International Law attempts at clarifying the debates surrounding the temporal dimension of self-defence by focussing on two research questions: first, is anticipatory action in self-defence part of customary international law? And, second, if so, what are its limits? At the outset, the author correctly identifies in Chapter 1 three main groups of authors, based on their views on the temporal dimension of self-defence. The first group ‘adopts the view that Article 51 [of the Charter], as an","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"419 - 427"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1383062","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43584375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strengthening the Rule of Law through the UN Security Council","authors":"Jordan Wilson","doi":"10.1080/20531702.2017.1379279","DOIUrl":"https://doi.org/10.1080/20531702.2017.1379279","url":null,"abstract":"This work represents the tenth instalment within a series of academic volumes examining the challenges presented by the emergence of globalisation on the geo-political scene. The series claims to make two significant contributions: first, dissecting the liberal democratic values which have served to form modern constructs of the civilised world; and, second, identifying what international institutions are best positioned ultimately to realise those values in an increasingly globalised world. The present contribution focuses upon the international community’s commitment to promoting the rule of law (ROL) – primarily through the premier mechanisms of the United Nations Security Council (peacekeeping, sanctions and force). Conversations on ROL theories naturally play a vital role within the confines of maintaining peace. Here, the authors show that ROL must also be equally applied to conversations regarding securing peace (e.g. through the use of force). While traditional ad bellum literature tends to examine parameters governing the use of force, this work shines a focus on reforming the systems and bodies which actually utilise the force. Based on this journal’s natural remit, special emphasis will be placed upon the authors’ discussion concerning the interplay between the ROL and the use of force. The present entry is conveniently divided into five easily digestible sections. From the onset, the editors present ROL as the antithesis to the use of force. In essence, efforts to ensure ROL serve as a means to maintain and regulate peace (1). While Part I seeks to provide a cursory review of the theories behind a contemporary understanding of the ROL, Parts II through to IV delve into how the UN Security Council (UNSC) attempts to implement the ROL in today’s world. Finally, Part V takes a look into future challenges and how the ROL can ultimately be strengthened through the dictates of the Security Council by presenting a list of policy proposals. While maintaining peace through ROL is the clearly defined target, the work is not naive in arguing that the utilisation of force is no longer necessary or can be conveniently avoided. To the contrary, the latter chapters focus explicitly on taking ROL concepts and applying them to the much more","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"428 - 440"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1379279","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45401873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pro-democratic intervention in current international law: the case of The Gambia in January 2017","authors":"Claus Kress, Benjamin K Nussberger","doi":"10.1080/20531702.2017.1338466","DOIUrl":"https://doi.org/10.1080/20531702.2017.1338466","url":null,"abstract":"At midnight, 19 January 2017, the term of office of the sitting President Yahya Jammeh ended according to the Gambian constitution. At the same time, the ultimatum to transfer power to the presiden...","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"239 - 252"},"PeriodicalIF":0.0,"publicationDate":"2017-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1338466","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49514269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cyber warfare and autonomous self-defence","authors":"Francis Grimal, J. Sundaram","doi":"10.1080/20531702.2017.1338877","DOIUrl":"https://doi.org/10.1080/20531702.2017.1338877","url":null,"abstract":"ABSTRACT At the forefront of the academic scrutiny of cyberspace within the jus ad bellum context is the extent to which cyber operations fall within the paradigm of Article 2(4) of the United Nations Charter. A related question is whether or not the injury suffered by a state subjected to a cyber-attack would be sufficient to invoke its inherent right of self-defence. This article considers the natural technological trajectory of self-defence in cyber operations by examining the very real possibility that computer networks eventually may be enabled to seek to defend themselves automatically against more aggressive cyber intrusions (‘automated cyber self-defence’). This possibility necessitates an examination of the way and extent to which such actions would fall within the existing jus ad bellum framework regulating a defensive response. More controversially, the article will also assert that the temporal parameters of self-defence in response to a cyber-attack may need re-calibration: issues of detection (particularly against dormant malware) and attribution may prevent a state from responding in a more conventional timeframe.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"312 - 343"},"PeriodicalIF":0.0,"publicationDate":"2017-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1338877","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45783730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"You can’t cyber in here, this is the War Room! A rejection of the effects doctrine on cyberwar and the use of force in international law","authors":"Tobias Kliem","doi":"10.1080/20531702.2017.1338388","DOIUrl":"https://doi.org/10.1080/20531702.2017.1338388","url":null,"abstract":"ABSTRACT There is a growing consensus in the literature on the applicability of the jus ad bellum to cyber-attacks that the effects caused by an attack should determine whether the attack constitutes a use of force (Article 2(4) of the UN Charter) or an armed attack giving rise to self-defence (Article 51 of the UN Charter). This article argues that this approach is inconsistent and dangerous. The push to include cyber-attacks in the existing framework on the use of force disregards the consensus on other non-conventional uses of force like economic sanctions and damage caused by espionage, and it is premised on dangerous hyperbole in sensational media stories. Such an approach ignores serious practical problems regarding the attribution of cyber-attacks and would open the door wide for abuse. There is no reason to weaken the effectiveness of a deliberately narrow system on the use of force based on dystopian scenarios.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"344 - 370"},"PeriodicalIF":0.0,"publicationDate":"2017-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1338388","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45514804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The relationship between national, unit and personal self-defence in international law: bridging the disconnect","authors":"C. O’Meara","doi":"10.1080/20531702.2017.1313525","DOIUrl":"https://doi.org/10.1080/20531702.2017.1313525","url":null,"abstract":"ABSTRACT Academic and judicial consideration of the right of self-defence in international law has focused on the right as it applies to states (national self-defence). This approach represents only part of the picture, however. Little attention has been paid to how the right of national self-defence relates to, and interacts with, the right of military personnel and their units to defend themselves. Yet, this relationship is crucial to determine when and how a state may defend itself. This article highlights fundamental problems associated with the focus on national self-defence, which results in the fragmentation of international law. It offers some unified thinking regarding issues of attribution, the gravity and timing of attacks, the requirements of necessity and proportionality and armed attacks by non-state actors. The aim is to bridge the current disconnect.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"273 - 311"},"PeriodicalIF":0.0,"publicationDate":"2017-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1313525","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47209498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The use of force in the course of maritime law enforcement operations","authors":"Matteo Tondini","doi":"10.1080/20531702.2017.1298952","DOIUrl":"https://doi.org/10.1080/20531702.2017.1298952","url":null,"abstract":"ABSTRACT Naval forces are increasingly involved in law enforcement operations. The level of coercion as well as the means/methods that may be legitimately used by warships in the course of police-type interventions differ substantially from the ones that may be administered in conflict-type engagements. In this respect, this article seeks to clarify the scope and contents of international law principles and rules applicable to the use of force in maritime law enforcement operations, and show how they may be applied in the current naval practice. The analysis is focused on how the criteria of unavoidability, reasonableness and necessity, as developed by the International Tribunal for the Law of the Sea, are to be interpreted according to, and complemented by, the principles and rules contained in international human rights law instruments and in the related case law (with a specific focus on the European Court of Human Rights’ case law).","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"253 - 272"},"PeriodicalIF":0.0,"publicationDate":"2017-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1298952","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44064123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Digest of State Practice: 1 July – 31 December 2016","authors":"T. Ruys, Luca Ferro, N. Verlinden, C. V. Maelen","doi":"10.1080/20531702.2017.1331067","DOIUrl":"https://doi.org/10.1080/20531702.2017.1331067","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"161 - 209"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1331067","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60042086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Women and children and elephants as justification for force","authors":"G. Heathcote","doi":"10.1080/20531702.2017.1294929","DOIUrl":"https://doi.org/10.1080/20531702.2017.1294929","url":null,"abstract":"ABSTRACT This article examines the use of force described as ‘robust peacekeeping’. Through a review of innovation in Security Council practice – in particular, thematic resolutions, targeted sanctions and robust peacekeeping – the role normative assertions of the Council play in underpinning new forms of force are assessed. Understood in this context, feminists and others who have agitated for inclusion within the work of the Security Council are counselled against pursuing projects that expand the powers of the institution while there remains a lack of checks on how force is mobilised. The reluctance of feminist and/or critical engagement to address the structural aspects of institutional spaces, such as the Security Council, consequently risks a legitimation of the institution without significant gains in terms of gender equality or, if viewed through recent resolutions establishing targeted sanctions against wildlife poachers, for the protection of elephants.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"66 - 85"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1294929","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47739578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction","authors":"James A. Green, C. Henderson, T. Ruys","doi":"10.1080/20531702.2017.1330053","DOIUrl":"https://doi.org/10.1080/20531702.2017.1330053","url":null,"abstract":"This issue of the Journal on the Use of Force and International Law (JUFIL) begins with an editorial by James A Green, in which he considers the right of collective self-defence, and particularly the criteria for the operation of that right. James questions whether the two ‘additional’ requirements of ‘declaration’ and ‘request’ set out in the International Court of Justice (ICJ)’s famous 1986 Nicaragua merits decision – which are commonly repeated uncritically in the literature – are in fact reflected in customary international law. This issue then features four major articles. In the first of these, Paulina Starski examines, through a focus on coalition action against ISIS, whether the mere silence of states in relation to state actions that challenge the established readings of jus ad bellum rules might induce and consolidate a process of normative change (and, if so, under what conditions). She concludes that mere passivity in light of the legal claims made with regard to coalition airstrikes against ISIL positions in Syria does not amount to ‘acquiescence’. In the next article, Gina Heathcote examines the use of force described as ‘robust peacekeeping’. Through a review of innovation in Security Council practice, Heathcote argues that feminists and others who have agitated for inclusion within the work of the Security Council are counselled against pursuing projects that expand the powers of the institution while there remains a lack of checks on how force is mobilised, and that the reluctance of feminist and/or critical engagement to address the structural aspects of the Security Council risks a legitimation of the institution without significant gains in terms of gender equality. In his article contribution, Nader Iskandar Diab assesses the various legal issues that arise as a result of the creation and mandate of League of Arab States’ Joint Arab Forces (JAF) under the relevant rules of international law (predominantly focusing on Article 2(4) and Article 53(1) of the UN Charter). He also discusses the consequences for the founding treaty of the JAF should it violate those international rules. Diab concludes that the gap between such practices by regional organisations and international law is not as wide as it would appear to be at first glance. Finally, the articles section concludes with a contribution by Benjamin Nußberger, who considers Operation Decisive Storm (the Saudi-led military intervention in Yemen in 2015). Against the background of the all-inclusive Yemeni transition heralded by the international community as a ‘model","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"4 1","pages":"1 - 3"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2017.1330053","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44827509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}