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The International Court of Justice and Self-Defence in International Law


ISBN13: 9781841138763
Published: July 2009
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £95.00



Despatched in 4 to 6 days.

The legal rules governing the use of force between States is one of the most fundamental, and the most controversial, aspects of international law. An essential part of this subject is the question of when, and to what extent, a State may lawfully use force against another in self-defence. However, the parameters of this inherent right remain obscure, despite the best efforts of scholars and, notably, the International Court of Justice.

This book examines the burgeoning relationship between the ICJ and the right of self-defence. Since 2003 there have been three major decisions of the ICJ that have dealt directly with the law governing self-defence actions, in contrast to only two such cases in the preceding fifty years. This, then, is an opportune moment to reconsider the jurisprudence of the Court on this issue.

This book is the first of its kind to comprehensively draw together and then assess the merits of this jurisprudence. It argues that the contribution of the ICJ has been confused and unhelpful, and compounds inadequacies in existing customary international law. The ICJ’s fundamental conception of a primary criterion of ‘armed attack’ as constituting a qualitatively grave use of force is brought into question. The book then goes on to examine the underlying causes of the problems that have emerged in the jurisprudence on this crucial issue.

Subjects:
Public International Law
Contents:
INTRODUCTION I. The International Court of Justice and Self-Defence II. Facts and Rulings of the Primary Cases A. The Nicaragua Case B. The Oil Platforms Case C. DRC v Uganda D. The Nuclear Weapons Advisory Opinion E. The Israeli Wall Advisory Opinion 1 THE CRITERION OF AN ARMED ATTACK IN THE JURISPRUDENCE OF THE INTERNATIONAL COURT OF JUSTICE I. Assessing the Jurisprudence of the Court II. Armed Attack as the Condition Sine Qua Non for Self-Defence A. The Requirement of an Armed Attack B. Armed Attack in the Context of Preventative Action III. Identifying an Armed Attack: A Question of Gravity A. Relating Armed Attack, Use of Force and Non-intervention B. Specific Actions C. A Variable Standard IV. Armed Attack as an Accumulation of Events V. The Level of State Involvement in an Attack VI. Armed Attack in Collective Self-Defence VII. The Concept of Forcible Countermeasures VIII. Conclusion 2 THE CRITERIA OF NECESSITY AND PROPORTIONALITY I. The Caroline Incident: Facts and Legal Claims II. The Applicability of the Caroline Formula A. A Mythical Authority B. Limited Applicability to Certain Types of Self-Defence C. Customary International Law in 1837 D. Adoption of the Caroline Formula since 1842 72 E. Aspects of the Caroline Formula within Customary International Law III. The Contemporary Content of the Caroline Criteria IV. Necessity A. Necessity as 'Last Resort' B. Procedural Exhaustion of Non-forcible Measures C. A 'Reasonableness' Test for Assessing Last Resort V. Proportionality VI. Temporal Aspects of Self-Defence A. Imminence B. Immediacy C. Temporal Aspects of Self-Defence in the Modern World VII. The Marginalisation of Necessity and Proportionality by the ICJ VIII. Conclusion 3 THE TROUBLE WITH ARMED ATTACK AND THE MERGED CONCEPTIONS OF SELF-DEFENCE I. 'Armed Attack as a Grave Use of Force': An Accurate Reflection of the Law? II. Armed Attack as a Self-Fulfilling Prophesy? III. The Merged Conceptions of Self-Defence IV. The Overlapping Functions of the Merged Conceptions V. The Different Functions of the Merged Conceptions VI. The Gap between a Use of Force Simpliciter and an Armed Attack VII. The Overall Indeterminacy of Self-Defence VIII. Conclusion 4 A PROPOSAL FOR REDEFINING ARMED ATTACK I. Defining Armed Attack Differently: Proposals Old and New II. The General Suitability of Necessity and Proportionality III. Implications for the 'Accumulation of Events' Problem IV. Implications for the 'Level of State Involvement' Problem V. Pre-empting the Issue of Preventative Self-Defence VI. Additional Support for a Different Interpretation of Armed Attack VII. Conclusion 5 THE ICJ: ROLES AND RESTRICTIONS I. Non-appearance A. Non-appearance in Nicaragua B. Non-appearance in Use of Force Disputes Generally II. The Underlying Roles of the ICJ A. The Settlement of Disputes through the Application of Existing Law B. The Development of International Law C. Is the Development of the Law Desirable? III. Politicisation and Decision-Making A. The Hive Mind Fallacy B. Judicial Bias and Politicisation C. Dworkinian 'Principles' and Decision-Making IV. The Suitability of the ICJ for Dealing with Use of Force Issues A. The Justiciability of 'Political' Disputes and the Separation of Powers B. The Need for a Legal Approach C. Evidence-Gathering V. Consent and the Limited Number of Self-Defence Cases VI. Consent and Partial Jurisdiction VII. Conclusion CONCLUSION

Series: Hart Studies in International Law

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Human Rights and Drug Control: The False Dichotomy ISBN 9781509926435
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Security and International Law ISBN 9781509924752
Published October 2018
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Human Rights Obligations of Non-State Armed Groups ISBN 9781509924431
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Diplomatic Interference and the Law ISBN 9781509924592
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Law's Impunity: Responsibility and the Modern Private Military Company ISBN 9781509918393
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Arctic Law and Governance: The Role of China and Finland ISBN 9781849467025
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International Law and Child Soldiers ISBN 9781509913831
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Complicity in International Criminal Law (eBook) ISBN 9781509900091
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Complicity in International Criminal Law ISBN 9781509900084
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Economic Sanctions and International Law ISBN 9781849465908
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Corruption and Human Rights Law in Africa ISBN 9781509908455
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Complicity and its Limits in the Law of International Responsibility ISBN 9781782259404
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Human Rights and Drug Control: The False Dichotomy ISBN 9781849467063
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Human Rights and Drug Control: The False Dichotomy (eBook) ISBN 9781509901135
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Security and International Law (eBook) ISBN 9781782255895
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Security and International Law ISBN 9781849466349
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Human Rights Obligations of Non-State Armed Groups ISBN 9781509901630
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Human Rights Obligations of Non-State Armed Groups (eBook) ISBN 9781509901654
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Diplomatic Interference and the Law (eBook) ISBN 9781509902781
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Diplomatic Interference and the Law ISBN 9781849464369
Published April 2016
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Law's Impunity: Responsibility and the Modern Private Military Company (eBook) ISBN 9781782259626
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£30.59
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Law's Impunity: Responsibility and the Modern Private Military Company ISBN 9781849465168
Published September 2015
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Statelessness: The Enigma of the International Community ISBN 9781849469692
Published August 2015
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Non-State Actors in International Law ISBN 9781849465113
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Non-State Actors in International Law (eBook) ISBN 9781509901869
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The Contractual Nature of the Optional Clause (eBook) ISBN 9781509901449
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The Contractual Nature of the Optional Clause ISBN 9781849468664
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International Law and Child Soldiers ISBN 9781849465205
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International Law and Child Soldiers (eBook) ISBN 9781782254348
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Corruption and Human Rights Law in Africa (eBook) ISBN 9781782254539
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Corruption and Human Rights Law in Africa ISBN 9781849466370
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Statelessness: The Enigma of the International Community (eBook) ISBN 9781782253747
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Statelessness: The Enigma of the International Community ISBN 9781849465076
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International Law and the Construction of the Liberal Peace ISBN 9781849462440
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Promises of States under International Law (eBook) ISBN 9781847318787
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Accounting for Hunger: The Right to Food in the Era of Globalization ISBN 9781849462266
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The Militarisation of Peacekeeping in the Twenty-First Century ISBN 9781849461146
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International Humanitarian Law and Terrorism ISBN 9781849461375
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Multi-Sourced Equivalent Norms in International Law ISBN 9781849461450
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Reflections on the UN Declaration on the Rights of Indigenous Peoples ISBN 9781841138787
Published January 2011
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Contracting with Sovereignty: State Contracts and International Arbitration ISBN 9781841136578
Published January 2011
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Human Dignity and the Foundations of International Law (eBook) ISBN 9781847318060
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Human Dignity and the Foundations of International Law ISBN 9781849460897
Published June 2010
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Africa: Mapping New Boundaries in International Law
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ISBN 9781849461177
Published June 2010
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The Democratic Legitimacy of International Law ISBN 9781841138176
Published June 2010
Hart Publishing
£120.00
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Sovereignty and the Stateless Nation: Gibraltar in the Modern Legal Context ISBN 9781841139166
Published October 2009
Hart Publishing
£130.00
Human Dignity and the Foundations of International Law ISBN 9781841133577
Published June 2009
Hart Publishing
£85.00
Counterterrorism: Democracy’s Challenge ISBN 9781841138183
Published July 2008
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Africa: Mapping New Boundaries in International Law
Edited by: Jeremy Levitt
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Published March 2008
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Forced Migration, Human Rights and Security
Edited by: Jane McAdam
ISBN 9781841137704
Published March 2008
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£80.00
Human Security and International Law: Prospects and Problems ISBN 9781841136103
Published December 2007
Hart Publishing
£85.00
Biotechnologies and International Human Rights ISBN 9781841137032
Published February 2007
Hart Publishing
£120.00
Transnational Corporations and Human Rights ISBN 9781841136530
Published September 2006
Hart Publishing
£140.00
Biotechnology and International Law ISBN 9781841136318
Published June 2006
Hart Publishing
£130.00
Predictability and Flexibility in the Law of Maritime Delimitation ISBN 9781841135816
Published May 2006
Hart Publishing
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£49.99
Enforcing International Law Norms Against Terrorism
Edited by: Andrea Bianchi
ISBN 9781841135663
Published November 2005
Hart Publishing
£69.99
Regional Organisations and Development of Collective Security ISBN 9781841134802
Published November 2004
Hart Publishing
£95.00
Enforcing International Law Norms Against Terrorism
Edited by: Andrea Bianchi
ISBN 9781841134307
Published July 2004
Hart Publishing
£150.00
The Permanent International Criminal Court ISBN 9781841132815
Published March 2004
Hart Publishing
£90.00
The Chapter VII Powers of the United Nations Security Council ISBN 9781841134222
Published January 2004
Hart Publishing
£130.00
Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism
Marc PallemaertsVrije Universiteit Brussel, Brussels and Universite Libre de Bruxelles, Brussels
ISBN 9781841131290
Published June 2003
Hart Publishing
£190.00
Between Light and Shadow ISBN 9781841133904
Published March 2003
Hart Publishing
£95.00