Armed Attack and Article 51 of the UN Charter ：Evolutions in Customary Law and Practice ( Cambridge Studies in International and Comparative Law )

Publication subTitle ：Evolutions in Customary Law and Practice

Publication series ：Cambridge Studies in International and Comparative Law

Author： Tom Ruys;

Publisher： Cambridge University Press‎

Publication year： 2010

E-ISBN: 9781316933381

P-ISBN(Paperback): 9780521766647

P-ISBN(Hardback): 9780521766647

Subject： D995 international law of war (war)

Keyword：法律

Language： ENG

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An examination of the scope of States' right of self-defence under Article 51 of the UN Charter in the post-9/11 security environment. Tom Ruys examines to what extent the right of self-defence permits States to engage in military operations against State and non-State actors in light of the developments since 9/11 and the interventions in Afghanistan and Iraq. The occurrence of an 'armed attack' is a particular focus. Tom Ruys examines to what extent the right of self-defence permits States to engage in military operations against State and non-State actors in light of the developments since 9/11 and the interventions in Afghanistan and Iraq. The occurrence of an 'armed attack' is a particular focus. This book examines to what extent the right of self-defence, as laid down in Article 51 of the Charter of the United Nations, permits States to launch military operations against other States. In particular, it focuses on the occurrence of an 'armed attack' - the crucial trigger for the activation of this right. In light of the developments since 9/11, the author analyses relevant physical and verbal customary practice, ranging from the 1974 Definition of Aggression to recent incidents such as the 2001 US intervention in Afghanistan and the 2006 Israeli intervention in Lebanon. The notion of 'armed attack' is examined from a threefold perspective. What acts can be regarded as an 'armed attack'? When can an 'armed attack' be considered to take place? And from whom must an 'armed attack' emanate? By way of conclusion, the different findings are brought together in a draft 'Definition of Armed Attack'. Introduction; 1. The methodological debate and the quest for custom; 2. Conditions of self-defence; 3. The Armed Attack Requirement Ratione Materiae; 4. The Armed Attack Requirement Ratione Temporis; 5. The Armed Attack Requirement Ratione Personae; 6. What future for the armed attack criterion? '… a great strength of the book is that it provides a detailed restatement of the law on self-defence and the crucial issues surrounding it … Ruys' work demonstrates a large amount of research into the content of the customary law, using both an 'incident analysis' approach and a consideration of practice in abstracto (for example, in relation to debates over various UN declarations). This research into state practice is of notable breadth and depth, and forms the cornerstone on which all the book's analysis is built … this is an excellent book on armed attack …' James A. Green, Journal of Conflict and Security Law '… a particularly subtle and reasoned interpretation of jus contra bellum established by the UN Charter. One could even say that this is the most rigorous and successful book to date about self-defence.' Professor Olivier Corten, translated from the Revue Belge de Droit International '… 'Armed Attack' and Article 51 of the UN Charter is a well written and carefully researched contribution which will become a bookshelf staple for academics working in the area.' Heather A. Harrison Dinniss, The Modern Law Review 'Tom Ruys has written one of the most important books on the Charter law on the use of force. His study is meticulously researched, methodologically sensitive, extremely thoughtful, and elegantly written and on top of all this, it shows balanced judgment. It must therefore be included in the rather short list of significant monographs on the subject-matter … by having written this splendid book, Ruys has rendered the determinacy of this

Chapter

Table of abbreviations and abbreviated citations

1. Abbreviations

2. Journals and related materials

Selected case law, legislation and related documents

1. International Case Law (ordered chronologically)

ICJ

Arbitration (ordered chronologically)

Other (ordered chronologically)

2. Selected practice of the UN bodies

Security Council (ordered chronologically)

General Assembly (ordered chronologically)

International Law Commission (ordered chronologically)

3. Treaties (ordered chronologically)

4. National case-law (ordered chronologically)

5. Selected regional and national materials (ordered chornologically)

North Atlantic Treaty Organization

Organization of American States

Organization for Security and Cooperation in Europe

6. Other materials (ordered chronologically)

Introduction

1 The methodological debate and the quest for custom

1.1 Treaty vs. custom

1.1.1 The Charter and pre-existing custom

1.1.2 The role of custom in treaty interpretation and modification

1.1.2.a Interpretation

1.1.2.b Modification

1.2 State practice vs. opinio iuris

1.2.1 Introduction: the methodological debate

1.2.2 The evidentiary weight of words and deeds

1.2.3 Observations concerning the density of customary practice

1.2.4 Conclusion

2 ‘Armed attack’ and other conditions of self-defence

2.1 The ‘armed attack’ requirement as an integral part of Article 51 UN Charter

2.1.1 Self-preservation and self-defence prior to 1945

2.1.2 Article 51 UN Charter – primary means of interpretation

2.1.3 The preparatory works of the UN Charter

2.2 Other conditions of self-defence

2.2.1 ‘Procedural’ obligations

2.2.1.a The reporting obligation

2.2.1.b The ‘until clause’

2.2.1.c Collective self-defence

2.2.2 Necessity and proportionality

2.2.2.a General

2.2.2.b Necessity

2.2.2.c Proportionality

2.2.2.d Conclusion

3 The ‘armed attack’ requirement ratione materiae

3.1 Armed attack and aggression

3.1.1 Two sides of the same coin

3.1.2 The negotiations within the Fourth Special Committee on the Question of Defining Aggression (1968–74)

3.1.3. Value of the Definition of Aggression

3.2 General factors determining the existence of an ‘armed attack’

3.2.1 The ‘most grave’ forms of the use of force and the de minimis controversy

3.2.1.a The approach of the International Court of Justice

3.2.1.b Criticism and alternate constructions in legal doctrine

3.2.1.c Customary practice

3.2.2 The ‘animus aggressionis’ and accumulation of events

3.2.2.a ‘Animus aggressionis’

3.2.2.b ‘Accumulation of events’

3.2.3 Connecting the dots: the panoply of scenarios and the role of context

3.3 Small-scale incursions by land, sea or air

3.4 Attacks against external manifestations of the State

3.4.1 Military units and military installations abroad

3.4.2 Embassies and diplomatic envoys

3.4.3 Civilian aircraft and merchant vessels

3.4.4 Protection of nationals

3.4.4.a The doctrinal debate

3.4.4.b Overview of concrete invocations of the doctrine after 1945

3.4.4.c Customary evidence in abstracto

3.4.4.d Evaluation de lege lata: running around in circles?

3.4.4.e De lege ferenda: Time for a change of discourse?

4 The ‘armed attack’ requirement ratione temporis

4.1 Anticipatory self-defence: the never-ending saga (1945–2001)

4.1.1 The doctrinal debate – a brief appraisal

4.1.1.a Arguments in favour of anticipatory self-defence

4.1.1.b Arguments against anticipatory self-defence

4.1.1.c The ICJ’s non-position

4.1.1.d A doctrinal divide greatly exaggerated?

4.1.2 Customary precedents: evidence in concreto

4.1.2.a The Cuban missile crisis (1962)

4.1.2.b The Six Day War (1967)

4.1.2.c The Osiraq strike (1981)

4.1.2.d Other cases

4.1.3 Customary evidence in abstracto

4.1.3.a Early negotiations on a Definition of Aggression

4.1.3.b Final negotiations on the Definition of Aggression (1968–74)

4.1.3.c Other materials

4.2 The shockwaves of 9/11

4.2.1 The 2002 US National Security Strategy and the intervention in Iraq in 2003

4.2.1.a Back to the drawing board: the 2002 US National Security Strategy

4.2.1.b The intervention in Iraq

4.2.2 Shifting positions of States and scholars: a defeat of preventive self-defence at the expense of an embrace of premptive self-defence?

4.2.2.a Mapping the academic response

4.2.2.b The High-Level Panel Report (2004) and ‘In Larger Freedom’ (2005)

4.2.2.c State support for premptive and preventive selfefence after Iraq

4.3 Exceptions and borderline cases

4.3.1 The prospective dimension of the necessity standard

4.3.2. Possible exceptions?

4.3.3 Interceptive self-defence at the tactical level: on-the-spot reaction

4.3.3.a Territorial incursions by land, sea or air

4.3.3.b Hostile encounters between military units and ‘unit self-defence’

4.3.3.c Interceptory and pre-emptive self-defence at the strategic level: the great unknown?

5 The ‘armed attack’ requirement ratione personae

5.1 Indirect military aggression in the decolonization era

5.1.1 Formulation of the problem

5.1.1.a Indirect military aggression and intersecting norms

5.1.1.b Forcible responses and alternative legal bases

5.1.2 The debate on ‘indirect aggression’ within the Fourth Special Committee on the Question of Defining Aggression

5.1.2.a Article 3(g)

5.1.2.b Use of force and the right of self-determination

5.1.3 State practice

5.1.3.a Early cases

5.1.3.b Interventions in neighbouring countries by Israel, Portugal, South Africa and Southern Rhodesia

5.1.3.c Other cases

5.1.4 Indirect aggression in the wake of the ICJ’s Nicaragua case

5.1.4.a The Nicaragua judgment (1986)

5.1.4.b Option 1: imputability or attributability of attacks by non-State actors

5.1.4.c Option 2: ‘substantial involvement’

5.2 Self-defence against non-State actors in the age of international terrorism and State failure

5.2.1 Prelude to 9/11: shifting context, shifting practice?

5.2.1.a The end of the decolonization era

5.2.1.b A new focus on terrorism: the ‘Shultz doctrine’ and beyond

5.2.1.c Other manifestations of shifting custom

5.2.2 9/11: awakening to a new security environment

5.2.2.a Security Council resolutions 1368 and 1373 (2001) and the US intervention in Afghanistan

5.2.2.b Security doctrines post 9/11

5.2.3 Customary practice after 9/11

5.2.3.a Israel–Syria 2003

5.2.3.b Israel–Lebanon 2006

5.2.3.c Turkey–Iraq 2007–8

5.2.3.d Colombia–Ecuador 2008

5.2.3.e Other examples

5.2.4 The response of the International Court of Justice

5.2.4.a The Palestinian Wall advisory opinion (2004)

5.2.4.b The ‘Tangled Web’: DRC v. Uganda (2005)

5.2.5 Conclusion: can non-State actors commit ‘armed attacks’?

5.2.5.a De lege lata: legal uncertainty

5.2.5.b The quest for a new threshold – some tentative criteria

6 What future for the ‘armed attack’ criterion?

6.1 The customary boundaries of self-defence

6.1.1 A word of caution

6.1.2 The correlation between Article 51 UN Charter and other primary or secondary rules, and the ‘pre-existing custom’ paradigm

6.1.3 Preconditions of individual self-defence other than the ‘armed attack’ requirement

6.1.4 Ratione materiae: the basic ingredients of an ‘armed attack’

6.1.5 The ‘armed attack’ ratione temporis

6.1.6 Ratione personae: attacks by non-State actors and the right of self-defence

6.1.7 The slippery slope of self-defence

6.2 Towards a UNGA ‘Definition of Armed Attack’?

6.2.1 Resuming an ancient project

6.2.2 A blueprint

6.2.3 Post-scriptum: strengthening the compliance pull of the Ius ad Bellum

Index

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