The law against war : the prohibition on the use of force in contemporary international law / Olivier Corten ; with a foreword by Bruno Simma ; translation by Christopher Sutcliffe.
2010
KZ6385 .C6813 2010 (Map It)
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Details
Author
Title
The law against war : the prohibition on the use of force in contemporary international law / Olivier Corten ; with a foreword by Bruno Simma ; translation by Christopher Sutcliffe.
Published
Oxford ; Portland, Or. : Hart Pub., 2010.
Call Number
KZ6385 .C6813 2010
Alternate Title
Droit contre la guerre.
ISBN
9781841139425 (hardback)
1841139424 (hardback)
1841139424 (hardback)
Language Note
"[This book] is a translated and updated version of a book published in 2008 in French (Le droit contre la guerre, [Paris] : Pedone). The aim of this book is to study the prohibition of the use of armed force in contemporary positive international law."--P. [i].
Description
xix, 569 pages ; 25 cm.
System Control No.
(OCoLC)573302198
Bibliography, etc. Note
Includes bibliographical references (pages [555]-557) and index.
Record Appears in
Table of Contents
Series Editor's Preface
v
Foreword / Bruno Simma
vii
Acknowledgments
xi
Tables of Cases
xvii
Introduction
1
1.
A Choice of Method
4
I.
The Terms of the Methodological Debate on the Non-Use of Force: the Extensive Versus the Restrictive Approach
5
A.
The Extensive Approach to the Customary Prohibition of the Use of Force
6
B.
The Restrictive Approach to the Customary Prohibition of the Use of Force
15
II.
Methodological Approach of this Book
27
A.
Reliance on a Novel Right
29
B.
The Acceptance of the Modification of the Legal Rule by the International Community of States as a Whole
34
2.
What do Ùse of Force' and ̀Threat of Force' mean?
50
I.
What does ̀Force' mean?
51
A.
The Boundary between Military Force and Police Measures
52
B.
Determining the Threshold: ̀Force' within the Meaning of Article 2(4) of the Charter
66
II.
What does ̀Threat of Force' mean?
92
A.
The Restrictive Meaning of ̀Threat' under Article 2(4) of the Charter
93
B.
The Scope of the Prohibition of Threat: the Absence of any Specific Regime for the Contemplated Use of Force
111
3.
Do the Prohibition of the Use of Force and Self-defence Apply to Non-State Actors?
126
I.
Exclusion of Non-State Political Entities from the Rule's Scope of Application
127
A.
Inapplicability of the Rule Prohibiting the Use of Force to Civil Wars
127
B.
Inapplicability of the Rule to National Liberation Struggles
135
C.
The Case of Territories with Entities of Controversial Legal Status
149
II.
Exclusion of Private Groups from the Rule's Scope of Application
160
A.
Maintaining Ìnternational Relations' as Relations among States: the Letter and Spirit of the Rule
162
B.
Maintaining Ìnternational Relations' as Relations between States: the Interpretation of Texts in Practice
174
C.
Maintaining Ìnternational Relations' as Relations between States: the Works of the International Law Commission and of the International Court of Justice
186
4.
Can Circumstances Precluding Unlawfulness be Invoked to Justify a Use of Force?
198
I.
Inadmissibility in Principle
199
A.
The Peremptory Character of the Rule in Article 2(4) of the Charter
200
B.
Inadmissibility of Circumstances Precluding Unlawfulness Not Provided for by the Charter
213
II.
Inadmissibility Confirmed in Practice
225
A.
Precedents Attesting to States' General Reluctance to Invoke Circumstances Precluding Unlawfulness
225
B.
Precedents Attesting Unequivocal Condemnation of Armed Reprisals
234
C.
The Rare Precedents where Circumstances Precluding Unlawfulness have been Invoked to Justify the Use of Force
236
5.
Intervention by Invitation
249
I.
The General Legal Regime of Military Intervention by Invitation
250
A.
The Possibility of Consenting to Armed Intervention within the Limits of Peremptory Law (Jus Cogens)
250
B.
The Requirement for Consent of the State's Highest Authorities
259
C.
The Existence of ̀Validly Given' Consent
266
II.
The Legal Regime of Military Intervention by Invitation in an Internal Conflict
276
A.
The Problem of Concurrent Governments
277
B.
The Problem of the Purpose of the Intervention by Invitation
288
6.
Intervention Authorised by the UN Security Council
311
I.
The General Legal Regime of Authorised Military Intervention
312
A.
The Lawfulness of Military Intervention Authorised by the Security Council
312
B.
The Unlawfulness of Military Intervention Àuthorised' by Another UN Body or by Another Subject of International Law
329
II.
The Problem of Presumed Authorisation
348
A.
The Absence of Recognition of Presumed Authorisation in Practice
349
B.
Refusals and Obstacles of Principle to Recognition of a Presumed Authorisation
390
7.
Self-Defence
401
I.
Àrmed Attack' According to Article 51 of the Charter
402
A.
̀Preventive Self-Defence' Theories
406
B.
The Question of Ìndirect Aggression'
443
II.
Necessity and Proportionality
470
A.
The Limit of Necessary Measures Adopted by the Security Council
472
B.
The General Meaning of Conditions of Necessity and Proportionality
479
8.
A Right of Humanitarian Intervention?
495
I.
Non-Recognition in Legal Texts
497
A.
The Dismissal of the Right of Humanitarian Intervention in Classical Legal Texts
498
B.
The Persistent Refusal to Accept a ̀Right of Humanitarian Intervention'
511
II.
The Non-Existence of Decisive Precedents
526
A.
The Absence of Consecration of a Right of Humanitarian Intervention before 1990
527
B.
The Absence of Consecration of a Right of Humanitarian Intervention since 1990
537
Conclusion
550
Selected Reading
555
Index
559