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International Law as to the Use of Force
Abstract
In its December 2005 Partial Award, the Eritrea-Ethiopia Claims Commission addressed two core issues: (1) whether it had jurisdiction over Ethiopia’s jus ad bellum claim, and (2) whether Eritrea’s use of force violated international law. On the first question, the Commission found that it had jurisdiction based on its interpretation of Article 5(1) of the Framework Agreement. While this interpretation has been criticised as being unreasonably wide, the Commission’s interpretation squares with the ordinary meaning of Article 5(1) as it had jurisdiction over ‘other violations of international law’. Moreover, both Eritrea and Ethiopia could have expressly excluded jus ad bellum claims, but did not elect to do so. On the second question, the Commission found that Eritrea was not acting in self-defence and had violated Article 2(4) of the UN Charter. This decision is consistent with the 1970 Friendly Relations Declaration and the principle that a State may not resort to a use of force to recover disputed territory. The Commission also correctly rejected the argument that Eritrea had acted in self-defence. The fighting that had occurred between both States were minor incidents that were geographically limited, therefore falling below the threshold for an ‘armed attack’ as set by the ICJ in Nicaragua. However, the Partial Award would have benefitted from greater factual detail as to why the border incidents did not amount to an armed attack. The Commission also correctly rejected the argument that Ethiopia had declared war given the lack of an explicit affirmation.
Within the chapter, the author discusses the possibility of introducing an international due diligence standard for Internet Service Providers (ISPs). She analyzes the due diligence standard in public international law as the common element of two accountability regimes binding upon states: the regime of state responsibility for the breach of an international obligation and international risk-liability for transboundary harm. They are both aimed at preventing transboundary harm originating from state territory. Such harm may presently be inflicted also with the use of cross-border electronic networks. Since the Internet is considered a global resource, the analysis provided is based upon international environmental law doctrine with its detailed due diligence standard and principle of prevention. The author goes on to propose their application to cyber-security. The idea argued within the chapter is for the development of an international cyberspace-specific due diligence standard and possibly a liability mechanism, as based on the multistakeholder principle recognized within Internet governance. The author aims to answer the question of whether a due diligence standard for cyberspace may and if so ought to be introduced through particular obligations laid upon Internet Service Providers, in particular Critical Internet Resources operators and introduction of an international ISP liability fund.
The nations that drafted the UN Charter in 1945 clearly were more concerned about peace than about justice. As a result, the Charter prohibits all use of force by states except in the event of an armed attack or when authorised by the Security Council. This arrangement has only very imperfectly withstood the test of time and changing world conditions. In requiring states not to use force in self-defence until after they had become the object of an actual armed attack, the Charter failed to address a growing phenomenon of clandestine subversion and of instantaneous nuclear threats. Fortunately although the Charter is very hard to amend, the drafters did agree that it should be interpreted flexibly by the United Nations' principal political institutions. In this way the norms governing use of force in international affairs have been adapted to meet changing circumstances and new challenges. The book also relates these changes in law and practice to changing public values pertaining to the balance between maintaining peace and promoting justice.
Rules of Evidence for the Use of Force in International Law’s New Era - Volume 100 - Mary Ellen O’Connell
Yoram Dinsteins seminal textbook is an essential guide to the legal issues of war and peace, armed attack, self-defence and enforcement measures taken under the aegis of the Security Council. This fourth edition incorporates new material on the wars in Afghanistan and Iraq, response to armed attacks by terrorists, recent resolutions adopted by the Security Council, and the latest pronouncements of the International Court of Justice. In addition, several new sections consider consent by States to the use of force (as expressed either ad hoc or by treaty); an armed attack by non-State actors; the various phases in the Gulf War up to the occupation of Iraq in 2003 and beyond; and immunities from jurisdiction.
There has been considerable debate in the international community as to the legality of the forceful actions in Kosovo in 1999, Afghanistan in 2002 and Iraq in 2003 under the United Nations Charter. There has been consensus, however, that the use of force in all these situations had to be both proportional and necessary. Against the background of these recent armed conflicts, this book offers the first comprehensive assessment of the twin requirements of proportionality and necessity as legal restraints on the forceful actions of States. It also provides a much-needed examination of the relationship between proportionality in the law on the use of force and international humanitarian law.
Fully revised and updated to December 2002, Malcolm Shaw's bestselling textbook on international law is a clear, authoritative and comprehensive introduction to the subject. The fifth edition includes new material on Inter-state Courts and Tribunals, arbitration tribunals and the role of international institutions such as the WTO. It will remain an invaluable resource for students and practitioners alike. While essential reading for students of international relations and the political sciences, the scope of the text also makes it of interest to lawyers and government and international employees. Previous Edition Hb (1997): 0-521-59384-0 Previous Edition Pb (1997): 0-521-57667-9
In 1963 the United Nations General Assembly established the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations1 and instructed it to consider the following principles
The most important single consequence of Nicaragua v. United States of America may well turn out to be its impact on the vitality of the law of the United Nations Charter governing force and self-defense. Will the case make it more likely, or less, that that law will become an increasingly effective working part of the international system?
The topic of the present paper is the relationship between the ICJ and the International Tribunal for the Law of the Sea which was recently inaugu-rated in Hamburg. The Tribunal for the Law of the Sea is the latest addition to the panoply of international judicial institutions. Its establishment followed the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) in November 1994 and took place in accordance with Annex V1 of the Convention1. Its role and functions are circumscribed in Part XV of the Convention entitled "Settlement of Disputes", and in Part XI entitled "The Area" which term, in accordance with Article 1 of the Convention, means the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. The Statute of the Tribunal is set out in the just mentioned Annex VI. As part of UNCLOS, the Tribunal seems to have more in common with the ICJ than other international judicial institutions created in the more recent past, such as above all the YugoslaviaTribuna12, which was established in The Hague just three years 1 The views expressed are those of the author.
This article analyses the role and content of proportionality under contemporary international law governing the use of force, with a view to clarifying the legal framework governing the conduct of the parties to an armed conflict. In the system of jus ad bellum, protection is primarily granted to the interest of the attacked state in repelling the attack; the other competing interests are considered only to curtail the choice of the means to be employed in order to achieve that aim. Conversely, in the system of jus in bello there is by definition no prevailing interest, but instead a variety of interests and values which are entitled to equal protection of the law and must be balanced against each other. The existence of two distinct normative systems, with distinct standards of legality applicable to the same conduct, does not as a rule give rise to major problems. The legality of recourse to force is measured against the proportionality of self-defence, whereas individual actions would have to conform to the requirement of proportionality in jus in bello. However, beyond the large area in which these two standards overlap, there might be situations in which the strict application of the jus ad bellum standard makes it impossible to achieve the aims of jus in bello. In these cases, the proportionality test under jus in bello must be regarded as part of the proportionality test under jus ad bellum. States must thus take humanitarian implications into account in determining the level of security they may seek to obtain using military action.
Obra que examina la validez del derecho al uso de la fuerza e intervención militar de los estados y el rol de la Organización de las Naciones Unidas (ONU) para mantener la paz y la seguridad internacional. Se presentan casos de análisis como los ataques terroristas del 11 de septiembre en Estados Unidos y la invasión a Irak en el 2003.
The recent decision by the Eritrea/Ethiopia Claims Commission on the ius ad bellum claims of Ethiopia – that Eritrea had violated the law on the use of force in starting the 1998–2000 war between the two states – is a troubling one. It raises questions about the proper role of arbitral tribunals in such cases. There were many factors which suggested that the Commission should have abstained from giving judgment. There was no unequivocal agreement between the parties that the Commission’s jurisdiction extended beyond claims for violations of humanitarian and other international law during the conflict to an examination of responsibility for the start of the war. Moreover, the award is extremely brief, and consequently it deals with controversial issues of the law of self-defence, such as the meaning of armed attack and the duty to report to the Security Council, in a rather limited way. The award also raises important questions about the relationship of an arbitral tribunal to other bodies. In this case, the award of the Claims Commission undermined the Eritrea/Ethiopia Boundary Commission’s 2002 Delimitation Decision, already under challenge by Ethiopia, at a time of increasing tension along the border.
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