Recourse to Force

State Action against Threats and Armed Attacks

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Author: Thomas M. Franck

Publisher: Cambridge University Press

ISBN: 9781139434959

Category: Law

Page: N.A

View: 6317

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.

An Equitable Framework for Humanitarian Intervention

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Author: Ciarán Burke

Publisher: Bloomsbury Publishing

ISBN: 178225126X

Category: Law

Page: 398

View: 8944

This book aims to resolve the dilemma regarding whether armed intervention as a response to gross human rights violations is ever legally justified without Security Council authorisation. Thus far, international lawyers have been caught between giving a negative answer on the basis of the UN Charter's rules ('positivists'), and a 'turn to ethics', declaring intervention legitimate on moral grounds, while eschewing legal analysis ('moralists'). In this volume, a third solution is proposed. The idea is presented that many equitable principles may qualify as 'general principles of law recognised by civilised nations' - one of the three principal sources of international law (though a category that is often overlooked) - a conclusion based upon detailed research of both national legal systems and international law. These principles, having normative force in international law, are then used to craft an equitable framework for humanitarian intervention. It is argued that the dynamics of their operation allow them to interact with the Charter and customary law in order to fill gaps in the existing legal structure and soften the rigours of strict law in certain circumstances. It is posited that many of the moralists' arguments are justified, albeit based upon firm legal principles rather than ethical theory. The equitable framework proposed is designed to provide an answer to the question of how humanitarian intervention may be integrated into the legal realm. Certainly, this will not mean an end to controversies regarding concrete cases of humanitarian intervention. However, it will enable the framing of such controversies in legal terms, rather than as a choice between the law and morality. '...has potential to become one of the most important books in public international law of the decade, or in a generation'. Martin Scheinin, Professor of Public International Law, European University Institute, Florence

Coexistence, Cooperation and Solidarity (2 vol. set)

Liber Amicorum Rüdiger Wolfrum

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Author: N.A

Publisher: Martinus Nijhoff Publishers

ISBN: 9004214828

Category: Law

Page: 1600

View: 654

Considering paradigmatic changes and current challenges in international law this collection of essays covers diverse areas such as law of the sea, human rights, international environmental law, international dispute settlement, peace and security, global governance and its relationship to domestic law.

The Oxford Handbook of the Responsibility to Protect

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Author: Tim Dunne

Publisher: Oxford University Press

ISBN: 0198753845

Category:

Page: 1120

View: 2582

The Responsibility to Protect (R2P) is intended to provide an effective framework for responding to crimes of genocide, ethnic cleansing, war crimes, and crimes against humanity. It is a response to the many conscious-shocking cases where atrocities - on the worst scale - have occurred even during the post 1945 period when the United Nations was built to save us all from the scourge of genocide. The R2P concept accords to sovereign states and international institutions a responsibility to assist peoples who are at risk - or experiencing - the worst atrocities. R2P maintains that collective action should be taken by members of the United Nations to prevent or halt such gross violations of basic human rights. This Handbook, containing contributions from leading theorists, and practitioners (including former foreign ministers and special advisors), examines the progress that has been made in the last 10 years; it also looks forward to likely developments in the next decade.

Sovereignty, the WTO, and Changing Fundamentals of International Law

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Author: John H. Jackson

Publisher: Cambridge University Press

ISBN: 1139452738

Category: Law

Page: N.A

View: 3720

The last decade of the twentieth century and the first decade of the twenty-first century has been one of the most challenging periods for the generally accepted assumptions of international law. This book, first published in 2006, grapples with these long-held assumptions (such as the consent basis of international law norms, equality of nations, restrictive or text-based treaty interpretations and applications, the monopoly of internal national power, and non-interference), and how they are being fundamentally altered by the forces of globalization. It also examines the challenges facing the WTO as a component of international economic law, and how that field is inextricably linked to general international law.

Questions of Jurisdiction and Admissibility before International Courts

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Author: Yuval Shany

Publisher: Cambridge University Press

ISBN: 1316489728

Category: Law

Page: N.A

View: 4727

This examination of the jurisdiction of international courts and the admissibility of cases before them analyses jurisdictional and admissibility rules in light of the roles assumed by international courts in international life and in light of the roles that jurisdictional and admissibility rules play in promoting the effectiveness and legitimacy of international courts. The theory pursued views jurisdiction as a form of delegation of power (the power to exercise judicial power and decide the law) and regards admissibility as a framework for deciding upon the propriety of exercising such power. On the basis of this theoretical framework, the author critically evaluates the exercise of judicial discretion in the existing case law of a variety of international courts, distinguishing between the category-based case selection implicit in jurisdictional rules and the case-by-case analysis and selection implicit in rules on admissibility.

Remedies against International Organisations

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Author: Karel Wellens

Publisher: Cambridge University Press

ISBN: 9781139432955

Category: Law

Page: N.A

View: 1932

International organizations have become major players on the international scene, whose acts and activities affect individuals, companies and states. Damage to interests or violation of rights sometimes occur (such as during peacekeeping operations, for example). Karel Wellens considers what remedies are available to potential claimants such as private contractors, staff members or, indeed, anyone suffering damage as a result of their actions. Can they turn to an Ombudsman or national courts, or do they have to rely on support by their own state? Are the remedies provided by international organizations adequate? Wellens' conclusions include suggestions for alternative remedial options in the future.

The United Nations Secretariat and the Use of Force in a Unipolar World

Power v. Principle

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Author: Ralph Zacklin

Publisher: Cambridge University Press

ISBN: 1139484222

Category: Law

Page: N.A

View: 2756

The end of the Cold War appeared to revitalise the Security Council and offered the prospect of restoring the United Nations to its central role in the maintenance of international peace and security. Between the Gulf War of 1990 and the 2003 invasion of Iraq, the UN Secretariat found itself in the midst of an unprecedented period of activity involving authorised and unauthorised actions leading to the use of force. In this 2010 book Ralph Zacklin examines the tensions that developed between the Secretariat and member states, particularly the five permanent members of the Security Council, concerning the process and content of the Council's actions in the Gulf War, Bosnia, Kosovo and the Iraq War as the Secretariat strove to give effect to the fundamental principles of the Charter.

The Constitution of Law

Legality in a Time of Emergency

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Author: David Dyzenhaus

Publisher: Cambridge University Press

ISBN: 1139460501

Category: Law

Page: N.A

View: 8913

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

Denial of Justice in International Law

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Author: Jan Paulsson

Publisher: Cambridge University Press

ISBN: 9781139448284

Category: Law

Page: N.A

View: 4672

Denial of justice is one of the oldest bases of liability in international law and the modern understanding of denial of justice is examined by Paulsson in this book, which was originally published in 2005. The possibilities for prosecuting the offence of denial of justice have evolved in fundamental ways and it is now settled law that States cannot disavow international responsibility by arguing that their courts are independent of the government. Even more importantly, the doors of international tribunals have swung wide open to admit claimants other than states: non-governmental organisations, corporations and individuals, and Paulsson examines several recent cases of great importance in his book.

Dark Continent

Europe's Twentieth Century

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Author: Mark Mazower

Publisher: Vintage

ISBN: 030755550X

Category: History

Page: 512

View: 3794

"A useful, important book that reminds us, at the right time, how hard [European unity] has been, and how much care must be taken to avoid the terrible old temptations." --Los Angeles Times Dark Continent provides an alternative history of the twentieth century, one in which the triumph of democracy was anything but a forgone conclusion and fascism and communism provided rival political solutions that battled and sometimes triumphed in an effort to determine the course the continent would take. Mark Mazower strips away myths that have comforted us since World War II, revealing Europe as an entity constantly engaged in a bloody project of self-invention. Here is a history not of inevitable victories and forward marches, but of narrow squeaks and unexpected twists, where townships boast a bronze of Mussolini on horseback one moment, only to melt it down and recast it as a pair of noble partisans the next. Unflinching, intelligent, Dark Continent provides a provocative vision of Europe's past, present, and future-and confirms Mark Mazower as a historian of valuable gifts. From the Trade Paperback edition.

National Military Manuals on the Law of Armed Conflict

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Author: Nobuo Hayashi

Publisher: N.A

ISBN: 9788293081029

Category: Military art and science

Page: 256

View: 6044

States are duty-bound to disseminate and ensure respect for the law of armed conflict (LOAC) among their personnel. A number of national military LOAC manuals have been issued to this end. But what are they exactly? What do they do? Is such a manual really nessescary for a state that does not have one yet? What are the experiences of those states which already issue manuals? What areas of law should a good manual cover? These and other questions were considered at an international seminar held under the auspices of the Forum for International Criminal and Humanitarian Law (FICHL) in Oslo, Norway, on 10 December 2007. This publication records the seminar’s deliberations and findings. It also contains an introductory article and a checklist prepared by the editor for the benefit of those considering writing a new manual.

The Threat of Force in International Law

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Author: Nikolas Stürchler

Publisher: Cambridge University Press

ISBN: 1139464914

Category: Law

Page: N.A

View: 4338

Threats of force are a common feature of international politics, advocated by some as an economical guarantee against the outbreak of war and condemned by others as a recipe for war. Article 2(4) of the United Nations Charter forbids states to use threats of force, yet the meaning of the prohibition is unclear. This book provides the first comprehensive appraisal of the no-threat principle: its origin, underlying rationale, theoretical implications, relevant jurisprudence, and how it has withstood the test of time from 1945 to the present. Based on a systematic evaluation of state and United Nations practices, the book identifies what constitutes a threat of force and when its use is justified under the United Nations Charter. In so doing, it relates the no-threat principle to important concepts of the twentieth century, such as deterrence, escalation, crisis management, and what has been aptly described as the 'diplomacy of violence'.

Fraudulent Evidence Before Public International Tribunals

The Dirty Stories of International Law

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Author: W. Michael Reisman,Christina Skinner

Publisher: Cambridge University Press

ISBN: 1139952862

Category: Law

Page: N.A

View: 2855

Domestic lawyers are, above all, officers of the court. By contrast, the public international lawyer representing states before international tribunals is torn between loyalties to the state and loyalties to international law. As the stakes increase for the state concerned, the tension between these loyalties can become acute and lead to practices that would be condemned in developed national legal systems but have hitherto been ignored by international tribunals in international legal scholarship. They are the 'dirty stories' of international law. This detailed and contextually sensitive presentation of eight important cases before a variety of public international tribunals dissects some of the reasons for the resort to fraudulent evidence in international litigation and the profession's baffling reaction. Fraudulent evidence is resorted to out of greed, moral mediocrity or inherent dishonesty. In public international litigation, by contrast, the reasons are often more complex, with roots in the dynamics of international politics.

Human Rights Obligations of Non-State Actors

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Author: Andrew Clapham

Publisher: OUP Oxford

ISBN: 0191018627

Category: Political Science

Page: 648

View: 9380

The threats to human rights posed by non-state actors are of increasing concern. Human rights activists increasingly address the activity of multinational corporations, the policies of international organizations such as the World Bank and the World Trade Organization, and international crimes committed by entities such as armed opposition groups and terrorists. This book presents an approach to human rights that goes beyond the traditional focus on states and outlines the human rights obligations of non-state actors. Furthermore, it addresses some of the ways in which these entities can be held legally accountable for their actions in various jurisdictions. The political debate concerning the appropriateness of expanding human rights scrutiny to non-state actors is discussed and dissected. For some, extending human rights into these spheres trivializes human rights and allows abusive governments to distract us from ongoing violations. For others such an extension is essential if human rights are properly to address the current concerns of women and workers. The main focus of the book, however, is on the legal obligations of non-state actors. The book discusses how developments in the fields of international responsibility and international criminal law have implications for building a framework for the human rights obligations of non-state actors in international law. In turn these international developments have drawn on the changing ways in which human rights are implemented in national law. A selection of national jurisdictions, including the United States, South Africa and the United Kingdom are examined with regard to the application of human rights law to non-state actors. The book's final part includes suggestions with regard to understanding the parameters of the human rights obligations of non-state actors. Key to understanding the legal obligations of non-state actors are concepts such as dignity and democracy. While neither concept can unravel the dilemmas involved in the application of human rights law to non-state actors, a better understanding of the tensions surrounding these concepts can help us to understand what is at stake.

The Gentle Civilizer of Nations

The Rise and Fall of International Law 1870–1960

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Author: Martti Koskenniemi

Publisher: Cambridge University Press

ISBN: 9781139429436

Category: Law

Page: N.A

View: 8049

International law was born from the impulse to 'civilize' late nineteenth-century attitudes towards race and society, argues Martti Koskenniemi in this extensive study of the rise and fall of modern international law. In a work of wide-ranging intellectual scope, now available for the first time in paperback, Koskenniemi traces the emergence of a liberal sensibility relating to international matters in the late nineteenth century, and its subsequent decline after the Second World War. He combines legal analysis, historical and political critique and semi-biographical studies of key figures (including Hans Kelsen, Hersch Lauterpacht, Carl Schmitt and Hans Morgenthau); he also considers the role of crucial institutions (the Institut de droit international, the League of Nations). His discussion of legal and political realism at American law schools ends in a critique of post-1960 'instrumentalism'. This book provides a unique reflection on the possibility of critical international law today.

Extraterritorial Use of Force Against Non-State Actors

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Author: Noam Lubell

Publisher: Oxford University Press

ISBN: 0199584842

Category: Law

Page: 288

View: 471

This book examines the legality of the use of force by states against individuals and non-state groups located beyond its borders, in light of applicable international law. The issues discussed include force used in the 'war on terror', pre-emptive self defence, and targeted killings of individuals.