The global terrorist attacks of the last decades have redefined the political, legal and academic debates[1] regarding the perimeters on the use of force against terrorism as well as against states hosting or aiding terrorist networks. The prohibition on the use or threat of force is widely and generally held to be a peremptory norm of jus cogens in crux, and had been described by various international institutions and academics as the "cornerstone" of contemporary international law.[2] However, there has been a fragmented approach as far as the exceptions to the prohibition of use of force outside the scope of Article 51 of the UN Charter are concerned,[3] which subsequently divides the international community over the limit and the scope of the use of force in self defence against terrorism. Since the emergence of the debates on the use force in self defence against terrorist outside the UN Charter, two schools of thoughts have developed conflicting legal arguments on the legality or illegality of the use of force. The first school of thought, which supports a pro-Charter right to the use of force in self defence under Article 51, argues that Art 51 of UN Charter requires that an armed attack must have occurred before a state can legally respond in self defence[4]. The second school of thought supports the proposition that the pre-charter customary law still operates in parallel to the UN Charter[5]. The latter argues against the proclamation that Art 51 quenched the customary rule on use of force in self defence[6]. The inclusion of the "inherent right" in Article 51 is the main reasoning of pro-customary rule on use of force and it is this reference to the customary law of the time that provided for anticipatory-self defence as customary right[7]. However, neither of the aforementioned schools of thoughts considered the effects of their arguments on other areas of international law. Modern international law contains rules which are considered as the higher rules of international law i.e "jus cogens" norms from which derogation is expressly prohibited by international law. Therefore, it is considerably important to examine the argument of pro-customary use of force in the light of jus cogen norms. The legal effect of jus cogens renders customary law on the use of force null and void because of its direct conflict with the peremptory norm. The present article argues that since Art 2(4)[8] and Art 51 of the UN Charter had been widely accepted as jus cogens norms by the international community, any effort to expand the use of force in self defence outside the scope of the UN Charter would be in breach of jus cogens norms[9].
The events of 9/11 had an undeniable and significant impact on the right to use of force in self defense. In the immediate aftermath of the attacks, the president of the United States, George W. Bush, declared that the attacks "were more than acts of terror; they were acts of war"[10]. As a result of the atrocities the US fleshed out its "Preemptive war doctrine' which supported the use of 'unilateral force to eliminate possible threats emerging from so called "rogue States"[11] and terrorists'. The preemptive use of force against terrorists was considered to be not only practical, but also legal and legitimate.[12] It was argued that in the present world, given the existence of WMD and the new forms of transnational terrorism, it is no longer necessary for the state to wait to be attacked or the threats of the attack to become imminent[13]. The 2002 National Security Strategy which stated 'if the war was necessary to prevent an enemy from striking the first blow, it would be incongruous to require the defending state to sustain and absorb a fatal attack before resorting to defensive force,[14] redefined existing international relationships in a way claiming to meet the challenges of the twenty first century[15]. This redefinition did not exclude the use of force in self defense. It was preserved that the traditional right of self defense was not in harmony with the realities of modern warfare and recent innovations in military technology, which could easily be employed by radical terror organizations or outlaw states[16].
Accordingly, September 11 had a significant impact on the right to use of force in self defense under the UN Charter. As it is noted, the US and its allies after the September 11 argued in favor of preemptive use of force in self defense against terrorists and made great efforts to transform the legal dimension of the use of force in self defense under the UN Charter. However, Cassese argued that in principle
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it has always been possible to accommodate the use force in response to terrorism within the traditional inter-state self defense paradigm[17]. It was stated that the pre-conditions, which are established under Article 51 of the United Nations Charter had to be satisfied[18]. However, under international law, a state can use armed force when it has been the victim of an armed attack and only against the state that has committed such an attack[19].
Since late 1920s, the use of force has been prohibited as an instrument of national policy, [20] except in self defense. The Charter was drafted to save succeeding generations from the scourge of war. The prohibition is contained in Article 2(4) of UN Charter which states[21]: "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nation"
As it is clear, Art 2(4) only refers to inter-state conflicts. However, it is disputable whether the scope and applicability of the prohibition of the use of force as laid down in the Charter only prohibits inter-state conflicts or it further covers non-states conflicts. Gray argued that Art 2(4) was directed towards prohibiting inter-states conflicts, because internal armed conflicts were seen initially as domestic matters unless they posed threat to international peace and security as delineated under Chapter VII of the United Nations Charter[22]. Even though Gray's explanation seems clear from one point, it is difficult to classify terrorism as a matter of internal affairs particularly since its transformation and adoption of a global character.
Before discussing the use of force against terrorism, it is fundamental to produce a clear picture of prevention of the use of force under art 2 (4) of the UN Charter which also covers 'threats'[23]. This point was addressed by the International Court of Justice in its advisory opinion to the General Assembly on the legality of the threat of the or use of nuclear weapons, which stated that "signaled intention to use force if certain events occur could constitute a threat under article 2(4) where the envisaged use of force would itself be unlawful[24]. One could argue that if international law does not recognize states claim of preemptive doctrine of use of force against terrorist or the states hosting terrorists, then states' threat to use force against the alleged hosting state would be in breach of Art 2(4). Whilst Art 2(4) of the UN Charter prohibits the unilateral use of force, the prohibition must be read in the context of Article 51, which recognizes in certain circumstances the inherent right of individual or collective self defense if an armed attack occurs against a member of the United Nations[25].
Some commentators advanced arguments in support of the limited scope of the prohibition under the old regime[26], whereas others have suggested that the Charter system had become obsolete.[27] As a result they provided different arguments to support and justify the use of force outside the traditional exceptions. They argued that the Charter allows the pre-Charter use of force based on customary international rules[28], and some others such as Amos Guiora went even further to argue that active pre-emptive use force against terrorists[29] is permissible under international law[30]. However, rules of law continue to operate until they have been modified or abrogated by procedures which by their basic parameters do not differ from norm creating procedures[31]. Accordingly, arguments in support of use of force outside the Charter concept have no legal basis; instead they are policy based arguments.
The right of self defense is one of only two exceptions[32] to the general prohibition on the use of force contained in Article 2(4) of the UN Charter[33]. Article 51 of the Charter is contemplated as one exception[34] by stating that[35]: "Nothing in the present Charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the necessary measures necessary to maintain international peace and security"
Since the emergence of the Charter in 1945 the precise scope of the right of self defense has been controversial[36]. In one hand the majority of the states and scholars view the right of self defense under Article 51 dependant on an actual armed attack.[37] Therefore, the state has to establish that there has been an actual armed attack[38]. Steven Ranter in his unique work "Self Defense against Terrorists" stated that in order to establish occurrence of armed attack several factors must be considered including the scale of force, the target of the attack; the identity of the attacker; the military nature of the attack; and the attribution of the attack to the state which force in self defense is to be employed[39]. In order for the state to use force in self defense against terrorists it should establish that the attacks carried out by the terrorist group were attributable to the harbouring state. The International Court of Justice (ICJ) adopted a restrictive view of the right of self defense, leaving the anticipatory case open[40]. The Court found that the term 'armed attack' has a narrower meaning than the words 'threat or use of force' and 'aggression'[41].
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Consequently, not every use of force in breach of 2(4) can be designated as an armed attack[42]. As the Court stated only the most grave uses of force[43] will amount as 'armed attacks' and thus trigger a victim state's right to respond with force in self defense[44]. The Charter was intended to govern relations between the states and hence the Charter's assumption is that such attacks had to be emanated from a state[45]. However, it has been recognized by international law that the conduct of a non-state actor will be attributable to a state if there is a sufficient and clear nexus between the state and non-state actor (terrorists). This perspective was codified in the International Law Commission Draft Articles on State Responsibility in 2001[46]. Article 8 provides that[47]: "The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct"
Thus, use of force against terrorists in the sense of Article 51 depends on a question of attribution[48], and requires that the responding state show a substantial involvement of the territorial state in the very attacks of terrorist organization against which the response was directed[49]. As the ICJ illustrated in the Oil Platform case[50]: "In order to establish that the United State was legally justified in attacking the Iranian platforms in exercise of the right of individual self defence, the United State has to show that attacks had been made upon for which Iran was responsible. And that those attacks were of such nature as to be qualified as armed attacks, within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force"
The ICJ apart from referring to 'scale and effect of an act' has offered little guidance on how to assess the gravity of particular use of force[51]. The Court in the Nicaragua case found that the supply of arms or logistical support was not per se sufficient to constitute armed attack, while sending armed bands or mercenaries into the territory of another state would constitute an armed attack[52]. The Court went further by asserting that there exist a gap between Article 2(4) and 51, and stressed out the necessity to distinguish the grave forms of the use force- those constituting an armed attack- from other less grave forms[53]. This opinion was reaffirmed by Eritrea-Ethiopia Claim Commission, which stated that "localized boarder encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter"[54].
However, there are scholars and states who reject the threshold lay down by the court. Yoram Dinestein although concedes that not every use of force amounts to an armed attack, rejects the Court's view that the mere frontier incident would not necessarily amount to an armed attack[55]. According to ICJ's decisions in subsequent cases and the requirements to use force in self defence under Article 51 of the Charter, the law of self defence is still to be conceived in its classical meaning, that is allowing states to act in self defence only in response to an armed attack by another state, or non-state actors in which the hosting state is exercising at least, effective control and is substantially involved[56].
The question of use of force in "anticipatory", "Preemptive" or "Preventive" self defence has dominated the legal debates between the scholars and the states. Some scholars argued in favour of preventive use of force in self defence, which means that an "actual armed attack", is not, necessary to occur before it triggers the right of the state to resort to preventive force to avert the future attack. This revised policy often referred to as the "Bush Doctrine"[57]. Anticipatory advocates advanced a supportive argument by stating that it is unreasonable to require a state to wait until it has been attacked to "defend itself"[58]. They argued that it seems hardly unlikely that the drafters of the Article 51 of the UN Charter should have forgotten the lessons of recent history and to insist that before a state to be entitled to take positive measures to protect itself, it should wait for the aggressor's blow first[59]. If it is about to be asserted that Article 51 of the Charter does not "cut down" the customary right of self defence[60], it is first necessary, as Baxter argued, to establish whether the treaty "UN Charter" was intended to be declaratory of existing customary international law or constitutive of the new law[61]. The International Court of Justice in North Sea Continental Shelf Case identified three occasions in which the existence of Customary rules might impact on treaty provisions[62].
- Where treaties are merely declaratory of the concerned customary rule;
- Where a treaty consists of rules and principles which are reflected in the practice of States, but which are not recognized as custom before the treaty itself has been adopted;
- As situation may arise whereby, after the adoption of a treaty, States which are not party to the treaty, accept all or certain provisions of the treaty as applying to them, and that such may then constitute State practice, leading to the development of a customary rule.
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ICJ in its decision in the Nicaragua case did not expressly consider the status of Art 51 and avoided to make any statements as to whether it was intended to reflect customary rule or not. Whereas, in North Sea Continental Case expressly stated that Art 6(2) is not customary rule and was not intended to be, therefore, the Court stated that one of the aforementioned occasions must be present if a provision to be considered as customary rule. The most relevant occasion to customary self defence is the first occasion. However, it is said that a treaty to be declaratory of customary international law if it merely recognizes the existence of the custom that it codifies[63]. The UN Charter is silent in this regard and by the time when the Charter came into force none of the States party to the Charter declared that what is apparently a new law is actually part of the existing law[64].
Even if it is assumed that customary rule of self defence still exist in parallel with Article 51 of the UN Charter, however, by virtue of Article 103 of UN Charter the later must prevail. Art 103 states that "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail"[65]. All states under Art 2(4) of the UN Charter[66] are obliged to refrain from the use of force against territorial and political independence of other state, except in such circumstances, when the state becomes a victim of an "armed attack" under Art 51[67]. Under international law states enjoy rights and have mandatory obligations to perform, however, in certain circumstances the exercise of the right will result in breach of the obligation. As a result of the conflicts between rights and obligations one could argue that the drafter's intention in setting "armed attack" as a pre-condition to resort to force in self defence was to maintain balance between rights and the obligations and avoid any kind of conflicts between the rights and the obligations.
Apart from insufficiency of evidence proving that Art 51 incorporated pre-existing customary law of use of force in self defence, modern international law restrain states from arbitrary interpretation of international law. States are not permitted to interpret treaties outside the framework identified or allowed by Vienna Convention of the Law of Treaties (hereafter, VCLT) 1969. The UN Charter is a treaty which codifies the major principles of international relations, from sovereign equality to the prohibition of the use of force.[68] Therefore, interpretation of the Charter under any circumstance must be in the light of rules set out in VCLT 1969[69]. Article 31 of VCLT 1969, states that " A treaty shall be interpreted in good faith in accordance with ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"[70]. It is arguable that in the light of Article 31 of VCLT, broader interpretation of Article 51, to cover anticipatory use of force in self defence against terrorists or States harboring the terrorist organization is in direct conflict with the object and purpose of Art 51 and the UN Charter as a whole.
If the Caroline doctrine of "Anticipatory or Preemptive" self defence is to be allowed, not only it would considerably remove restrictions on when states may or are allowed to use force, but it will also undermine the restrains on how states may use force.[71] In addition to that, giving the existing tension in some parts of the world, once such policy officially proclaimed as valid, other states will inevitably seek to rely on it where it furthers their interests[72]. As a United Kingdom Foreign Affairs Committee report concluded in late 2002, if the United States and United Kingdom were to hold this broad right of pre-emptive self-defence, this could 'be taken as legitimizing the aggressive use of force by other, less law-abiding states[73].
Although in classical international law there did not exist any hierarchy of sources and rules, in modern international law certain fundamental rules have emerged, mainly as a result of the endeavors of socialist and developing countries[74]. It was argued by those countries that certain rules regulating states relation should be given a higher rank than ordinary rules originating from treaties and customs[75]. International Law Commission during the discussion on the topic provided various examples, such as prohibition of use of force, racial discrimination, piracy, slave trading and torture[76].
Jus cogens norms for the first time were formally incorporated into public international law by the Vienna Convention on the Law of Treaties (VLCT 1969). Article 53 of VCLT 1969 provides that: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by subsequent norm of general international law having the same character"[77].
Indubitably, the prohibition of use of force is accepted generally as jus cogens norm by the international community[78]. The peremptory status of
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Art 2(4) of the UN Charter has been asserted by ICJ judges. Judge Nagendra Singh emphasized that the principle of the non-use of force, being "the very cornerstone of the human effort to promote peace" is part of jus cogens[79]. Judge Elarby emphasized in his Separate Opinion in the Palestinian Wall case that the prohibition of the use of force as the most important principle that emerged in the twentieth century is undeniably part of jus cogens[80]. However, at the same time there are some other judges who considered the use of force in self defence as jus cogens norm, which means that it cannot be derogated. In the Oil Platforms case, Judge Simma affirmed that the norm of general international law on the unilateral use of force is undeniably of a peremptory nature[81]. Moreover, the international Court of Justice in the Nuclear Weapons case stated that the right of States to resort to self defence follows from the fundamental right of every state[82] and that this right is also part of jus cogens[83].
It seems widely unclear to consider the prohibition and use of force in self defence as jus cogens norm, because the former is in conflict with the later, as it is restricting the scope of self defence. As Alexander Orakhelashvili argued "if the very prohibition of the use of force is jus cogens, then every principle specifying the limits on the entitlement of States to use force is also peremptory norm of jus cogens"[84]. Even though the ICJ considered use of force in self defence as jus cogens norm, it did not precisely explore which of self defence doctrines posses such feature, whether it meant self defence within the UN Charter or the "Bush Doctrine" anticipatory self defence. If anticipatory use of force in self defence could be classified as a jus cogens norm, then Art 51 of the UN Charter cannot deny it of being legally valid. Thirlway expressed this point by stating that " if the new customary norm is accepted as jus cogens, then according to the Vienna Convention on the Law of Treaties, not merely is any inconsistent provision in the treaty overridden, but any existing treaty which is in conflict with the norm becomes void and terminates, but where the new norm is not of [jus cogens] nature, then if the parties to the treaty have themselves contributed to the development of the new customary rule by acting inconsistently with the treaty or have adopted the customary practice in their relations after the rule has becomes established, then the situation may be analyzed as in effect modification, or even perhaps an interpretation, of the treaty"[85].
However, it is mostly unlikely to be able to provide any legal evidence to verify that the customary rule of use of force in self defence [anticipatory] posses' jus cogens traits, and also a rule cannot be classified as jus cogens if at the time of its emergence that rule did not posses legal feature. As J. de Arechega argued pre-Charter self defence was not legal rather it was political. He argued by asserting that "for the concept of legitimate self defence to come into existence, it is necessary that a corresponding notion of illegitimate use of force already existed[86]. It is only with the United Nation Charter that the prohibition of the use force and consequently the legitimacy of self defence has become established as proportioned legal concept[87]. Therefore, one could argue that the ICJ had no intention completely to consider anticipatory self defence as jus cogens, rather it is more likely that ICJ referred to the self defence within the UN Charter including its pre-conditions and limitations.
Accordingly, on the bases of legal effects of the jus cogens it is arguable that anticipatory use of force in self defence against terrorists or states harboring terrorist or threat to use force against the states hosting the terrorists is in direct violation of peremptory norm and therefore it is null and void. Jus cogens not only suppose the hierarchy between the conflicting interests, but provides by its very essence, the legal tool of ensuring the maintenance and continuous operability of this hierarchy, depriving conflicting acts and transactions of States of their legal significance[88].
In addition to that, it has been affirmed by the Court that even at the time of emergency States has no right to derogate from jus cogens norms. In Furundzija the ICTY linked that the prohibition of torture can never be derogated from, not even in time of emergency, with its peremptory character[89]. As the representative of Sierra Leone at 1968 Vienna Conference noted that "upholding of jus cogens provided a golden opportunity to condemn, colonialism, imperialism, slavery, forced Labor and all practices that violated the principle of the equality of all human beings and of the sovereign equality of States[90]. However, despite the existence of evidence either expressly or impliedly, which confirms that States and Security Council uphold jus cogens norms as non-derogable and its performance does not depend on other States performance, Security Council and the powerful states in many occasions had acted contrary to the notion of jus cogens, and adopted Resolutions and rules which were in conflict with the jus cogens.
For the last two decades it has been argued that while international law identifies and recognizes the right to state self defence, it is inherently lacking in
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deciding when a state may engage in pre-emptive or anticipatory action[91]. As Amos Guiora argues the issue is not the legal status of the use of force in self defence but the feebleness respect[92] for international law. The UN Charter as a treaty clearly and expressly highlights when a state could resort to a force in self defence. Although the doctrine of pre-emptive or anticipatory use of force is unclear and uncertain, the international law does not favor freedom or unregulated discretion for the individual entities subject to it to resort to use of force in self defence against another States on uncertain grounds. The status of use of force in contemporary international law could be analyzed more properly by applying the doctrine of malum prohibitum. Often a wrong is characterized as either malun in se or malum prohibitum[93]. The use of force in self defence has not been characterized as malum in se neither in natural law nor in positive law. Customary law on the use of force was politically acceptable among the states formed it to be used to defend once territory or interest outside its sovereign boundaries. However, after the Second World War, the international community introduced a prohibition on the use of force in self defence, and plainly defined its limit and scope. The UN Charter was not intended to introduce a degree of unprecedented regulation to the field of the use of force, but it was intended to restrain and prohibit completely the use or threat to use force except in such circumstances where the state has been a victim of an armed attack by another state. The arguments made by the pro-customary use of force in self defence have undoubtedly generated sufficient breathing space for the US[94] and EU to ignore the principles of malum prohibitum, and enjoy the same liberty as they were before the emergence of UN Charter to take unilateral actions against states that are hosting terrorist networks.
Customary law cannot override peremptory norm of jus cogens. Art 2(4) and Art 51 as jus cogens cannot be modified, only by subsequent norm of general international law having the same character[95]. As the Commission stated in its commentary, states cannot use agreement and presumably acquiescence as form of agreement to contract out of rules of general international law of jus cogens[96], which means that the state would be prohibited to take existence of customary law on use of force in self defence to contract out of Art 2(4) and Art 51 of the UN Charter. As a result of jus cogens norm legal effect and higher status, it plays a rule of international constitution for two reasons as Michael Bayer argued. First, they limit the ability of states to create or change rules of international law. Second, these rules prevent states from violating fundamental rules of international public policy since the resulting rules or violations of rules would be seriously detrimental to the international legal system[97]. What becomes apparent is that the "anticipatory, preemptive" use of force has no legal grounds in international law; rather the doctrine is violating the UN Charter and Peremptory norms of jus cogens. ■
NOTES
[1] M. Kinacioglu, "A Response to Amos Guiora: reassessing the Parameters of Use of Force in the age of Terrorism" (2008) J.C. & S.L. 33.
[2] Armed Activities on the Territory of the Congo (DRG-Uganda Case), [2005] ICJ Report 201, para. 148. Nicaragua Case [1986] ICJ Reports 14. Separate Opinion of President Singh at para. 153.
[3] Christian J. Tam, "The Use of Force Against Terrorists" (2009) Vol. 20 No. 2 EJIL 359-379.
[4] J. Mulcahy, Charles O. Mahony, "Anticipatory Self-Defence: A Discussion of the International Law" (2006) Vol. 2 No.2 HanseLR 231-248.
[5] Nicaragua Case [1986] ICJ Reports
[6] Cohen, "Fromulation of State's Response to Terrorism and State Sponsored Terrorism' [2002] 14 PILR 77.
[7] J. Mulcahy, Charles O. Mahony, "Anticipatory Self-Defence: A Discussion of the International Law" (2006) Vol. 2 No.2 HanseLR 231-248.
[8] Nicaragua (1986) ICJ Reports 153.
[9] A. Orakhelashvili, Peremptory Norms in International Law, (1st edn, Oxford University Press, Oxford 2006, p. 439).
[10] K. Q. Seelye and E. Bumiller, "After the Attacks: The President Bush Labels Aerial Terrorist Attacks 'Acts of War'" New York Times (13 September 2001), Qoated by Onder. Bakircioglu, Self-Defensce in International and Criminal Law: The Doctrine of Imminence, (1[st] edn, Taylor & Francis Group, London 2011, p. 1).
[11] F. Cameron, US Foreign Policy after the Cold War: Global Hegemon or Reluctant Sheriff?( 2[nd] edn, Routledge, New York 2005, p. 142).
[12] W.P. Nagan and C. Hammer, "The New Bush National Security Doctrine and the Rule of Law" (2004) 22 Berkeley J. Int'l Law 375, pp. 406-409.
[13] Onder. Bakircioglu, Self-Defensce in International and Criminal Law: the Doctrine of Imminence, (1[st] edn, Taylor & Francis Group, London 2011, p. 3).
[14] The National Security Strategy of the United States of America, September 2002, at 13, <http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/> accessed on 15[th] of September 2012.
[15] The National Security Strategy of the United States of America, September 2002, at 7, <http://www.globalsecurity.org/military/library/policy/national/nss-020920.pdf> accessed on 16[th] of September 2012.
[16] Onder. Bakircioglu, Self-Defensce in International and Criminal Law: the Doctrine of Imminence, (1[st] edn, Taylor & Francis Group, London 2011, p. 3).
[17] A. Cassese, "The International Community's Legal Response to Terrorism" (1989) 38 International and Comparative Law Quarterly 589-597.
[18] A. Garwood. Gowers, "Self Defense Against Terrorism in the Post-9/11 World" (2004) QUTLawJJI 13. < http://www.austlii.edu.au/au/journals/QUTLJJ/2004/13.html> Accessed on 16[th] of September 2012.
[19] R. Nigro, "International Terrorism and the Use of Force against Non-States Actors"(2009) No 150, ISPI Policy Brief. <http://www.ispionline.it/it/documents/PB_150_2009.pdf> Accessed on 16[th] of September 2012.
[20] Chaloka Beyani, "The Global war on Terror: Issues and trends is the use of Force and International Humanitar-
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ian Law'(2003) HPG Briefing, Number 10. www.odi.org.uk accessed on 16[th] of September 2012.
[21] Article 2 (4) UN Charter 1945.< http://www.un.org/en/documents/charter/chapter1.shtml > accessed on 16[th] of September 2012.
[22] C Gray, International law and Use of Force, (3[rd] edn, Oxford University Press, Oxford, 2008, pp 60 and 64).
[23] M. Roscini, "Threat of Armed Forces and Contemporary International Law" (2007) 54 NILR, p. 229.
[24] M Shaw, International Law, (6[th] edn, Cambridge University Press, Cambridge 2008, p. 1125). See also Arbitral Tribunal decision in Guyana v Suriname, awarded of 17 September 2007, Paras.439 and 445, where an order by Surinamese naval vessels to an oil rig to leave the area within 12 hours or face the consequences was deemed to constitute threat under the Charter Art 2(4).
[25] Jonathan Charney, "Terrorism and the Right of Self Defence' (2001) American Society of International law 839.
[26] Travalio, "Terrorism, International Law, and the Use of Force'(2000) 18 Wisconism Int'l LJ 145.
[27] Cf Glennon," How International Rules Die'(2005) 93 Georgia Law Journal 939.
[28] M. Shaw, International law, (6[th] edn, Cambridge University Press, Cambridge 2008, p. 1131).
[29] Amos Guiora, "Anticipatory Self-Defence and International Law-a Re-evaluation' (2008) JCSL 3.
[30] Amos Guiora, "Anticipatory Self-Defence and International Law-a Re-evaluation' (2008) JCSL 3
[31] G. M. Danilenko, Law Making in the Community, (1[st] edn, Martinus Nijhoff Publisher, Netherlands, 1993, p. 126).
[32] A. Garwood. Gowers, "Self Defense Against Terrorism in the Post-9/11 World" (2004) QUTLawJJI 13. < http://www.austlii.edu.au/au/journals/QUTLJJ/2004/13.html> Accessed on 17[th] of September 2012
[33] Nicaragua v United State of America [1986] ICJ Rep 14 [190].
[34] H. Duffy, The War on Terror, and the Framework of International law, (1[st] edn, Cambridge University Press, Cambridge 2005, p. 149).
[35] Article 51, Chapter VII of United Nations Charter http://www.un.org/en/documents/charter/chapter7.shtm, Accessed on 12[th] April 2012.
[36] A. Garwood. Gowers, "Self Defense Against Terrorism in the Post-9/11 World" (2004) QUTLawJJI 13. <http://www.austlii.edu.au/au/journals/QUTLJJ/2004/13.html> Accessed on 17[th] of September 2012
[37] I. Brownlie, International Law and the Use of Force by States (Oxford University Press, Oxford 1963, pp. 270-280).
[38] D. Kretzmer, "The Inherent Right of Self-Defence and Proportionality in ius Ad Bellum' (2011) Institute for International Law and Justice <http://www.iilj.org/courses/documents/2011Colloquium.Kretzmer.pdf> Accessed 12[th] April 2012.
[39] SR Ratner, "Self-Defence against Terrorists: The Meaning of Armed Attack' (2010) in L Van den Herik and Nico Schrijver (eds) Counter-terrorism and International Law: meeting the challenges (Forthcoming in 2011).
[40] Nicaragua case (1986), para. 194.
[41] Nicaragua case (1986) ICJ Report 14 [191]
[42] Ibid
[43] Ibid
[44] Nicaragua case (1986) ICJ Report 14 [249].
[45] Aria. Takahashi, n 5, 1087, quoted by A. Garwood. Gowers, "Self Defense Against Terrorism in the Post-9/11 World" (2004) QUTLawJJI 13. <http://www.austlii.edu.au/au/journals/QUTLJJ/2004/13.html> Accessed on 17[th] of September 2012
[46] ICL, Article 8 of Draft Articles on State Responsibility 2001
<http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf> accessed on 17[th] September 2012
[47] Ian Brownlie, Principles of Public International Law, (7[th] edn, Oxford University Press, Oxford 2008, p. 449).
[48] C Tam, "The Use of Force against Terrorists'(2009) 20 EJIL, 359-397.
[49] Prosecutor v. Tadic, 38 ILM (1999) 1518, at paras 116-145.
[50] D. Raab, "Armed Attack after the Oil Platform Case'(2004) 17 Leiden Journal of International Law 719. And also See Oil Platform Case, Supra 8, Para 51.
[51] Oil Platform Case [2003] ICJ Report [195].
[52] Nicaragua case (1986), para. 195.
[53] T. Ruys, Armed Attack and Article 51 of UN Charter: Evolutions in Customary Law, (1[st] edn, Cambridge University Press, Cambridge 2010, p. 140).
[54] Eritrea Ethiopia Claims Commission, Partial Award, jus ad Bellum, Ethiopia's Claims 1-8, the Hagye 19 December 2005, para. 11 <http://www.pca-cpa.org/showpage.asp?pag_id=1151> Accessed on 14[th] April 2012.
[55] D. Kretzmer, "The Inherent Right of Self-Defence and Proportionality in ius Ad Bellum' (2011) Institute for International Law and Justice <http://www.iilj.org/courses/documents/2011Colloquium.Kretzmer.pdf> Accessed on 14[th] of April 2012
[56] Raphael. Van. Steenberghe, "Self-Defence in Response to Attacks by Non-State Actors in the Light of Recent State Practice: A step Forward?" (2010) L.J.I.L 183.
[57] Y. Dinstein, War, Aggression and Self-Defence,( 5[th] edn, Cambridge University Press, Cambridge 2011, p. 195).
[58] O. Schachter, "The Right of States to Use Armed Force" (1984) 82 Michigan Law Review 1620-1634.
[59] D.W.Greig, International Law, (1970, p. 682).
[60] J. De Arechega, "General Course in Public International Law" (1978) 159 Receuil des Cours 9.
[61] R. Baxter, "Multilateral Treaties as Evidence of Customary International Law" (1965) 41 BYBIL 275-298.
[62] North Continental Shelf Case [1969] ICJ Report 3.
[63] Ademola Abass, International Law, Text, Cases and Materials, (1[st] edn, Oxford University Press, Oxford 2012, p. 57).
[64] R. Baxter, "Multilateral Treaties as Evidence of Customary International Law" (1965) 41 BYBIL 275-298.
[65] Art 103 of UN Charter <http://www.un.org/en/ documents/charter/chapter16.shtml.> Accessed on 20[th] of September 2012
[66] Art 2(4) of UN Charter <http://www.un.org/en/ documents/charter/chapter1.shtml> Accessed on 20[th] of September 2012
[67] Art 51 of UN Charter <http://www.un.org/en/ documents/charter/chapter7.shtml> Accessed on 20[th] of September 2012
[68] Charter of the United Nations, San Francisco, 26, June 1945 <http://untreaty.un.org/cod/avl/ha/cun/cun.html> Accessed on 21[st] April 2012
[69] Golder v United Kingdom, Judgement of 21 February 1975, Series A no 18, S 29. To read the case: http://portal.uclm.es/descargas/idp_docs/jurisprudencia/golder%20eng%20-%20prohibicion%20del%20abuso%20del%20derecho.%20prohibicion%20de%20las%20interpretaciones%20extensi-vas%20de.pdf. Accessed on 21[st] of April 2012
[70] Section 3, Article 31 of VCLT 1969: <http://www.trans-lex.org/500600> Accessed on 21[st] of April 2012.
[71] M.E. O'Connell, "the Myth of Pre-emptive Self-Defence' (2002) ASIL 1-22.
[72] Garwood. G. Andrew, "Pre-emptive Self-Defence: A Necessary Development or the Road to International Anarchy (2004)AUYrBkIntl 3 <http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/2004/3.html> Acessed on 25[th] of April 2012
- 84/85 -
[73] I. Daalder, "Policy Implications of the Bush Doctrine' (2002) Council on Foreign Relations/ American Society of International Law Roundtable on Old Rules, New Threats: <http://www.cfr.org/international-law/policy-implications-bush-doctrine-preemption/p5251> Accessed on 25[th] of April 2012
[74] Ibid
[75] Ibid
[76] M. Shaw, International Law, (6[th] edn, Cambridge University Press, Cambridge, 2008, p. 126).
[77] Article 53 VCLT 1969. <http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf> Accessed on 1[st] of October 2012.
[78] Nicaragua, (1986) ICJ Reports 100-101.
[79] Nicaragua (1986) ICJ Reports 153.
[80] Judge Elaraby, Separate Opnion, Palestinian Wall case, para. 3.1.
[81] Judge Simma, Separate Opinion, Oil Platform Case, para. 9.
[82] Nuclear Weapon case (1996) ICJ Reports, 263.
[83] A. Orakhelashvili, Peremptory Norms in International Law,(1[st] edn, Oxford University Press, Oxford 2006, p. 50).
[84] A. Orakhelashvili, Peremptory Norms in International Law,(1[st] edn, Oxford University Press, Oxford 2006, p. 51).
[85] Thirlway (2010) quoted by A. Abass, International Law: Text, Cases and Material,(1[st] edn, Oxford University Press, Oxford 2012, p. 61).
[86] J. De Arechega, "General Course in Public International Law' (1978) 159 Recueuil des Course 9.
[87]J. De Arechega, "General Course in Public International Law' (1978) 159 Recueuil des Course 9.
[88] A. Orakhelashvili, Peremptory Norms in International Law,(1st edn, Oxford University Press, Oxford 2006, p. 68).
[89] Furundzija, para. 144.
[90] Sierra Leone Representative at UN Conference on the Law of Treaties, First section (1968), Official Records, at 300, S 9. Quoted by A. Cassese, International Law, (2nd edn, Oxford University Press, Oxford 2005, p. 205).
[91] Amos N. Guiora, "Anticipatory Self-defence and International Law-a re-evaluation'(2008) Journal of Conflict and Security Law.
[92] Helen Duffy, The War on Terror and the Framework of International Law, (1[st] edn, Cambridge University Press, Cambridge 2005, p. 445).
[93] Daniel E. Hall, J. D., Ed. D., Criminal Law and Procedure (Sixth edn, Delmar Cengage Learning, New York USA, 2012, [p.] [60)]9[.]4
[94] J. Mulcahy, Charles O. Mahony, "Anticipatory Self-Defence: A Discussion of the International Law" (2006) Vol. 2 No.2 HanseLR 231-248.
[95] Ian. Brownlie, Principles of Public International Law, (Seventh edn, Oxford University Press, Oxford 2008, p. 512).
[96] Ian. Brownlie, Principles of Public International Law, (Seventh edn, Oxford University Press, Oxford 2008, p. 511).
[97] Michael Byers," Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules'(1997) 66 NORDIC J. INT'L L. nos. 2-3 211, 219-220.
Lábjegyzetek:
[1] The Author's are Senior Lecturer in Law, London South Bank University, UK.
Visszaugrás
