&amp;apos;Armed Attack&amp;apos; and Article 51 of the UN Charter

Ruys, Tom

doi:10.1017/cbo9780511779527

Cited by 104 publications

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“…The implication is an erosion of the "compliance pull" of the Jus ad bellum, which can only be remedied by a much-needed clarification of the law.' 88 Instead, I suggest that the legal regime on the use of force by states cannot be understood as a fixed distinction between legal and illegal acts; legality of a war is not a function of its relation to a pre-given set of rules, and the ban on war does not function as an objective standard by which state conduct can be judged to be either lawful or unlawful. The law may perhaps contribute to international order but it does not do so by holding firm the line against inter-state 'aggression'.…”

Section: Resultsmentioning

confidence: 99%

“…For instance, according to Tom Ruys, 'up until the end of the nineteenth century, the predominant conviction was that every State had a customary right, inherent in sovereignty itself, to embark upon war whenever it pleased.' 12 This right was activated when a sovereign claimed to have experienced a harm at the hands of a foreign agent. The pre-1945 discourse of war legitimation emphasised the existence of harm and the legitimacy of the use of force in response.…”

Section: The Permissive Power Of the Ban On Warmentioning

confidence: 99%

“…These interpretive controversies are well-known. 43 They include questions such as whether the 'threat or use of force' includes non-military forms of coercion such as embargoes, market pressure, or diplomatic sanctions; whether it prohibits attacks on private as opposed to governmental targets in other countries; whether it permits attacks on a government if the provoking act originated with a non-state actor and not the state; whether the phrase 'the territorial or political independence' narrows or merely illustrates the scope of what is forbidden; and what is meant by 'or any other manner that is inconsistent with the purposes of the UN'.…”

Section: The Interpretation Of 2(4): Text and Practicementioning

confidence: 99%

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The permissive power of the ban on war

Hurd¹

2016

Eur j.of int. secur.

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The ban on inter-state war in the UN Charter is widely identified as central to the modern international order-Michael Byers calls it 'one of the twentieth century's greatest achievements'. Even if it is only imperfectly observed, it is often seen as a constraint on state autonomy and an improvement on the pre-legal, unregulated world before 1945. In response to this conventional view, this article shows that the laws on war in the Charter are better seen as permissive rather than constraining. I make two points. First, by creating a legal category around 'self-defence', the laws on war authorise, and thus legitimate, wars that are motivated by the security needs of the state, while forbidding other motives for wars. Second, state practice since 1945 has expanded the scope of this authorisation, extending it in both time and space beyond the black-letter text of the Charter. The permissive effect of law on war has therefore been getting larger. These two effects suggest that international law is a resource that increases state power, at least for powerful states, and this relation between international law and power politics is missed by both realists and liberal internationalists. KeywordsSelf-defence; International Law; International Security; Laws of War; Legal Justification He who breaks the law has gone to war with the community; the community goes to war with him. 1In the standard view of international law, the power of law lies in its ability to differentiate between lawful and unlawful state behaviour and to encourage the former by making the latter more expensive. However this model fails in relation to the laws that ban inter-state war, and it fails for reasons that are important for scholarship on the relation between international law and politics. This article makes two points: that the laws on war are permissive rather than constraining and that the scope of this permission has expanded since 1945 under the influence of state practice. Contrary to the conventional view of the ban on war, raisons d'état are not supplanted by legalism. Legalisation has instead created a legalised path for war through the concept of self-defence. This amounts to a permissive authorisation for war that magnifies some aspects of state power, with a scope that has been expanding since 1945.The ban of war is widely identified as central to the modern international order -Michael Byers calls it 'one of the twentieth century's greatest achievements' -and it is often used as evidence of progress

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Section: Resultsmentioning

confidence: 99%

Section: The Permissive Power Of the Ban On Warmentioning

confidence: 99%

Section: The Interpretation Of 2(4): Text and Practicementioning

confidence: 99%

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The permissive power of the ban on war

Hurd¹

2016

Eur j.of int. secur.

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“…It could not be used to justify the blockade of Cuba in 1962. In that incident, the United States did not attempt to justify the naval quarantine imposed on Cuba aimed at impeding the delivery of offensive weapons and materials by Soviet Union to Cuba as an exercise of self-defence because there was no indication that the United States was confronted by an 'imminent threat of an armed attack', and this implied that the action came under the category of 'preservative' rather than 'pre-emptive' self-defence (Ruys, 2010). Similarly, Israel's airstrike against the Osiraq reactor in Iraq in 1981 could not be considered an act of self-defence because 'there was no armed attack on the US in 1962 anymore than there was on Israel in 1981' (Note 18).…”

Section: Anticipatory Self-defencementioning

confidence: 99%

Forcible Protection of Nationals Abroad and Humanitarian Intervention: Might or Right?

Salako

2016

ILR

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The forcible protection of nationals abroad (a rescue mission) and humanitarian intervention (intervention of one state or a group of states in a territorial state where there is a threat or actual loss of life, forced migration or gross violation of human rights and which, at times, involves government replacement or nation building) are different doctrines which, in functional terms, overlap.Since 1945, the ius ad bellum (the rules of international law governing the legality of the use of force) are stated in Articles 2(4) and 51 of the UN Charter. Since the end of the Cold War in 1989, some states and an increasing number of scholars have attempted to discard the prohibition of the use of force and to create new exceptions such as preventive war, pro-democratic intervention and unilateral intervention.The objects of this article are: (i) to assess critically the attempt to drive a horse and a coach through the provisions of Articles 2(4) and 51 of the UN Charter; (ii) to show that a legal regime laid down by the UN Charter which is founded on a genuine ius contra bellum (law against war) remains unaffected; (iii) to show that the transmogrification of 'political sovereignty' to 'popular sovereignty' and the use of human rights as justifications for humanitarian intervention can be construed as a subterfuge; and (iv) to analyse the economic, political and strategic reasons for humanitarian intervention and to show how stretching international law to justify a 'right' is simply replaced by 'might'.

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“…… For this reason, the US strike against a number of Al Qaeda suspects in Yemen in November 2002, and carried out in cooperation with Yemeni authorities, could not be justified on the basis of Article 51 UN Charter.' ' Ruys 2010, at p. 377 n. 39. See Naert 2004 a state of necessity.…”

Section: International Law Aspects Of the Jus Ad Bellummentioning

confidence: 99%

The Killing of Osama Bin Laden and Anwar Al-Aulaqi: Uncharted Legal Territory

Schaack

2012

Yearbook of International Humanitarian Law 2011 - Volume 14

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'Armed Attack' and Article 51 of the UN Charter

Cited by 104 publications

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The permissive power of the ban on war

The permissive power of the ban on war

Forcible Protection of Nationals Abroad and Humanitarian Intervention: Might or Right?

The Killing of Osama Bin Laden and Anwar Al-Aulaqi: Uncharted Legal Territory

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