Institutionalizing state responsibility : global security and UN organs / Vincent-Joël Proulx.
2016
JZ5588 .P78 2016 (Map It)
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Details
Title
Institutionalizing state responsibility : global security and UN organs / Vincent-Joël Proulx.
Published
Oxford, United Kingdom : Oxford University Press, 2016.
Copyright
©2016
Call Number
JZ5588 .P78 2016
Edition
First edition.
ISBN
9780199680399
0199680396
0199680396
Description
xxxii, 361 pages ; 24 cm.
System Control No.
(OCoLC)918925459
Summary
The aim of this series is to publish important and original pieces of research on all aspects of international law. Topics that are given particular prominence are those which, while of interest to the academic lawyer, also have important bearing on issues which touch the actual conduct of international relations. Nonetheless the series is wide in scope and includes monographs on the history and philosophical foundations of -international law.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Table of Cases
xix
Table of Legislation
xxiii
Abbreviations
xxxi
Introduction
1
A.
Introductory Remarks
1
B.
Overview of Research
6
Part I The Role Of State Responsibility In The Face Of Global Security Threats: Underlying Assumptions, Challenges, And Shortcomings
Introduction to Part I
11
1.
Crossing the Conceptual Rubicon: Understanding Secondary Norms of State Responsibility
13
1.1.
Law of State Responsibility: Codification, Attribution, and Secondary Norms
13
1.2.
ILC's ARSIWA and the Primary/Secondary Divide
18
1.2.1.
mechanics of the ARSIWA
20
1.2.2.
problems of autoqualification and self-judging
27
1.3.
Loaded Notion of 'Attribution' and Nicaragua's Legacy: Merging State Responsibility and Use of Force Repertoire
29
1.4.
Conclusion: The Evolution of State Practice and Opinio Juris
37
2.
State Responsibility and Global Security in the Light of Unforeseen Transnational Phenomena
39
2.1.
Introduction
39
2.2.
Problem of State Support of Terrorism
41
2.3.
Impact of 9/11: Conflation of Use of Force Repertoire with State Responsibility
44
2.4.
Other Global Security Threats: The Limits of State Responsibility
48
2.4.1.
Environmental degradation, global warming, and climate change
49
2.4.2.
Risk assessment and precautionary approaches
56
2.4.3.
Ungoverned spaces and territories
63
2.4.4.
Cyberterrorism
66
Conclusion to Part I
73
Part II Implementing State Responsibility After 9/11: Institutional Perspectives
Introduction to Part II
77
3.
Advancing State Responsibility through UN Institutional Mechanisms
83
3.1.
Assessing Existing Institutional Mechanisms in Implementing State Responsibility
84
3.1.1.
debate over institutionalized implementation: Scholarly perspectives
84
3.1.2.
Fairness in implementation: An overarching concern
93
3.1.3.
International Court of Justice
96
3.1.3.1.
Substantive forays into State responsibility and the ICJ as 'legislator'
98
3.1.3.2.
Jurisdictional limitations
104
3.1.3.3.
Court and obligations erga omnes
110
3.1.3.4.
Conclusion: A legal environment for political decisions
113
3.1.4.
General Assembly
114
3.1.4.1.
Institutional limitations
115
3.1.4.2.
Towards a supportive role
117
3.1.5.
Security Council
118
3.1.5.1.
Prospects and limits
119
3.1.5.2.
Council's 'quasi-judicial' exercise of powers
126
3.2.
Potential Conflicts between the ICJ and Security Council
136
3.2.1.
judicial review question
136
3.2.1.1.
International Court of Justice
138
3.2.1.2.
Other tribunals
141
3.2.2.
Functional overlap and surrounding issues: Towards complementary roles for the Council and ICJ
143
3.2.3.
Lis pendens in the context of global security
148
3.3.
Preliminary Conclusions: The Security Council as Legislator and Implementer
151
4.
Institutionalizing the Implementation of State Responsibility in Counterterrorism Contexts: The Interplay between the Security Council and International Legal Norms
155
4.1.
Introduction
155
4.2.
Relationship between the Council and State Responsibility Norms: Countermeasures, Reciprocity, and International Law
166
4.2.1.
Inter-State implementation mechanisms: Countermeasures as the classic remedy
167
4.2.2.
limits of reciprocity: Moving away from decentralized and unilateral remedies
173
4.2.3.
Moving beyond the 'political v legal' divide: Resisting overly rigid dichotomies
178
4.3.
Chapter VII Powers
187
4.4.
Extent of Council Practice
190
4.4.1.
Protection of collective interests and obligations ergo omnes
192
4.4.2.
cessation of internationally wrongful conduct
195
4.4.3.
Obligation of reparation and return to legality under Chapter VII
200
4.4.4.
Obligation of reparation and return to legality outside the Chapter VII framework
205
4.4.5.
Satisfaction, guarantees, and assurances of non-repetition
211
4.4.6.
Obligation of non-recognition of third States and the duty to cooperate
214
4.4.7.
Towards stricter sanctions in global security: Counterterrorism and beyond
217
4.4.8.
Towards a broader remedial scheme: Forcible countermeasures and beyond
219
4.4.9.
Scholarly reactions and debates
221
4.5.
Determination of International Responsibility and Surrounding Issues
223
4.5.1.
Moving beyond the 'political v legal' divide: The Council as implementer
223
4.5.2.
Council's application of attribution and responsibility mechanics
243
4.6.
Elucidating the Relationship: Identifying Commonalities
248
4.6.1.
Expanding Chapter VII to include State responsibility
248
4.6.2.
Council's powers in relation to secondary norms
250
4.6.3.
rights of States vis-à-vis implementation notwithstanding Council involvement
254
4.6.4.
straddling of objectives: The sui generis case of counterterrorism and its implications for global security
257
Conclusion to Part II
261
Part III State Responsibility As An Institution In The Global Security Scheme: Forcible Countermeasures, Recourse To Force, And The General Framework
Introduction to Part III
271
5.
Drawing on Self-contained Regimes: The Connection between the Use of Force and State Responsibility
279
5.1.
Introduction
279
5.2.
Keeping State Responsibility Law Insulated: Just how Self-contained is the Recourse to Force Legal Scheme?
280
5.2.1.
ARSIWA and use of force
280
5.2.2.
Possible exceptions derived from State and institutional practice
283
5.2.3.
Institutional perspectives: The ILC, ICJ, and Security Council
289
5.2.4.
shift to indirect responsibility for terrorism
293
5.3.
Conclusion: The Controversial Remedy of Forcible Countermeasures
298
6.
Please Kill Responsibly: Counteracting Global Security Violations with Force
303
6.1.
Introduction: Next Steps in Further Defining State Responsibility
303
6.2.
Role of Self-defence in the Law of State Responsibility: The Counterterrorism Context
304
6.2.1.
Self-defence as a countermeasure
304
6.2.2.
Bypassing the Security Council: Parallel collective (counter) measures and their limits
307
6.2.3.
Recourse to force in response to internationally wrongful acts
317
6.2.4.
State Responsibility as a basis for invoking self-defence
326
6.2.5.
Concluding remark on self-defence and State responsibility
333
6.3.
Research and Policy Prospectus for the Future: Guidelines and Building Blocks
338
Conclusion to Part III
343
Conclusion
347
Index
353