The Oxford Handbook of the Use of Force in International Law

Description

The prohibition of the use of force in international law is one of the major achievements of international law in the past century. The attempt to outlaw war as a means of national policy and to establish a system of collective security after both World Wars resulted in the creation of the United Nations Charter, which remains a principal point of reference for the law on the use of force to this day. There have, however, been considerable challenges to the law on the prohibition of the use of force over the past two decades. ThisOxford Handbookis a comprehensive and authoritative study of the modern law on the use of force. Over seventy experts in the field offer a detailed analysis, and to an extent a restatement, of the law in this area. The Handbook reviews the status of the law on the use of force, and assesses what changes, if any, have occurred in consequence to recent developments. It offers cutting-edge and up-to-date scholarship on all major aspects of the prohibition of the use of force. The work is set in context by an extensive introductory section, reviewing the history of the subject, recent challenges, and addressing major conceptual approaches. Its second part addresses collective security, in particular the law and practice of the United Nations organs, and of regional organizations and arrangements. It then considers the substance of the prohibition of the use of force, and of the right to self-defense and associated doctrines. The next section is devoted to armed action undertaken on behalf of peoples and populations. This includes self-determination conflicts, resistance to armed occupation, and forcible humanitarian and pro-democratic action. The possibility of the revival of classical, expansive justifications for the use of force is then addressed. This is matched by a final section considering new security challenges and the emerging law in relation to them. Finally, the key arguments developed in the book are tied together in a substantive conclusion. The Handbook will be essential reading for scholars and students of international law and the use of force, and legal advisers to both government and NGOs. Contents Table of Cases xvii Table of Legislation xxvii List of Abbreviations lxvii Notes on the Contributors lxxiii PART I INTRODUCTION Introduction: International Law and the Problem of War 3 Marc Weller 1. Too Much History: From War as Sanction to the Sanctioning of War 35 Randall Lesaffer 2. Law of Nations or Perpetual Peace? Two Early International Theories on the Use of Force 56 Daniele Archibugi, Mariano Croce, and Andrea Salvatore 3. The Limitations of Traditional Rules and Institutions Relating to the Use of Force 79 Michael J. Glennon 4. The Continued Relevance of Established Rules and Institutions Relating to the Use of Force 96 James Crawford and Rowan Nicholson 5. Feminist Perspectives on the Law on the Use of Force 114 Gina Heathcote x contents 6. The Collective Security System and the Enforcement of International Law 129 Jean d’Aspremont 7. Changing Jus Cogens through State Practice? The Case of the Prohibition of the Use of Force and its Exceptions 157 Alexander Orakhelashvili PART II COLLECTIVE SECURITY AND THE NON-USE OF FORCE 8. Reconfiguring the UN System of Collective Security 179 Ramesh Thakur 9. Outsourcing the Use of Force: Towards More Security Council Control of Authorized Operations? 202 Niels Blokker 10. When the Security Council is Divided: Imprecise Authorizations, Implied Mandates, and the ‘Unreasonable Veto’ 227 Ian Johnstone 11. United Nations Security Council Practice in Relation to Use of Force in No-Fly Zones and Maritime Exclusion Zones 251 Rob McLaughlin 12. Military Sanctions Enforcement in the Absence of Express Authorization? 272 Penelope Nevill 13. The Relationship between the UN Security Council and General Assembly in Matters of International Peace and Security 293 Nigel D. White 14. Regional Organizations and Arrangements: Authorization, Ratification, or Independent Action 314 Erika de Wet contents xi 15. Use of Force: Justiciability and Admissibility 329 A. Mark Weisburd 16. The Use of Force in United Nations Peacekeeping Operations 347 Scott Sheeran 17. Mandated to Protect: Security Council Practice on the Protection of Civilians 375 Haidi Willmot and Ralph Mamiya 18. Self-Defence, Protection of Humanitarian Values, and the Doctrine of Impartiality and Neutrality in Enforcement Mandates 398 Nicholas Tsagourias 19. Transparency, Accountability, and Responsibility for Internationally Mandated Operations 416 Charlotte Ku 20. ‘Failures to Protect’ in International Law 437 André Nollkaemper PART III THE PROHIBITION OF THE USE OF FORCE, SELF-DEFENCE, AND OTHER CONCEPTS 21. The Ban on the Use of Force in the UN Charter 465 Nico Schrijver 22. Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force: What’s the Difference? 488 Jan Klabbers 23. The Prohibition of the Use of Force and Non-Intervention: Ambition and Practice in the OAS Region 507 Jean Michel Arrighi xii contents 24. The Crime of Aggression at the International Criminal Court 533 Sean D. Murphy 25. The International Court of Justice and the ‘Principle of Non-Use of Force’ 561 Claus Kreβ 26. The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports 605 Vaios Koutroulis 27. The Resilience of the Restrictive Rules on Self-Defence 627 Jörg Kammerhofer 28. Self-Defence and Collective Security: Key Distinctions 649 Sir Michael Wood 29. Taming the Doctrine of Pre-Emption 661 Ashley S. Deeks 30. Can Non-State Actors Mount an Armed Attack? 679 Kimberley N. Trapp 31. The Problem of Imminence in an Uncertain World 697 Noam Lubell 32. Action Against Host States of Terrorist Groups 720 Lindsay Moir 33. When Does Self-Defence End? 737 T. D. Gill 34. Theatre of Operations 752 Jean-Christophe Martin contents xiii PART IV ACTION ON BEHALF OF PEOPLES AND POPULATIONS 35. ‘Humanitarian Intervention’ 775 Sir Nigel Rodley 36. Pro-Democratic Intervention 797 David Wippman 37. Intervention by Invitation 816 Gregory H. Fox 38. National Liberation in the Context of Post- and Non-Colonial Struggles for Self-Determination 841 Elizabeth Chadwick PART V REVIVAL OF CLASSICAL CONCEPTS? 39. Necessity 861 Olivier Corten 40. Retaliation and Reprisal 879 Shane Darcy 41. Hot Pursuit 897 William C. Gilmore 42. The Threat of the Use of Force and Ultimata 910 François Dubuisson and Anne Lagerwall 43. Blockades and Interdictions 925 Wolff Heintschel von Heinegg 44. Rescuing Nationals Abroad 947 Mathias Forteau xiv contents 45. Peace Settlements and the Prohibition of the Use of Force 962 Martin Wählisch 46. The Effects of a State of War or Armed Conflict 988 Marina Mancini PART VI EMERGING AREAS? 47. Proliferation of Weapons of Mass Destruction and Shipping Interdiction 1017 Vasco Becker-Weinberg and Guglielmo Verdirame 48. The Implications of the Proliferation of Weapons of Mass Destruction for the Prohibition of the Use of Force 1034 Daniel H. Joyner 49. The Use of Force Against Pirates 1057 Douglas Guilfoyle 50. The Changing Environment and Emerging Resource Conflicts 1077 Marco Pertile 51. Remotely Piloted Warfare as a Challenge to the Jus ad Bellum 1095 Jordan J. Paust 52. The Use of Cyber Force and International Law 1110 Michael N. Schmitt 53. Private Military Companies and the Jus ad Bellum 1131 Ian M. Ralby PART VII GENERAL PROBLEMS 54. Jus Cogens and the Use of Armed Force 1161 André de Hoogh contents xv 55. The Principle of Proportionality from a Jus ad Bellum Perspective 1187 Theodora Christodoulidou and Kalliopi Chainoglou 56. The Relationship Between Jus ad Bellum and Jus in Bello 1209 Keiichiro Okimoto 57. Consequences for Third States as a Result of an Unlawful Use of Force 1224 Paolo Palchetti Index 1239