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The International Court of Justice and Self-Defence in International Law

By: James A. Green
Media of The International Court of Justice and Self-Defence in International Law
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Published: 30-07-2009
Format: Hardback
Edition: 1st
Extent: 246
ISBN: 9781841138763
Imprint: Hart Publishing
Series: Studies in International Law
Dimensions: 234 x 156 mm
RRP : £70.00
 

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Loren Epson

About The International Court of Justice and Self-Defence in International Law

The legal rules governing the use of force between States are one of the most fundamental, and the most controversial, aspects of international law. An essential part of this subject is the question of when, and to what extent, a State may lawfully use force against another in self-defence. However, the parameters of this inherent right remain obscure, despite the best efforts of scholars and, notably, the International Court of Justice.

This book examines the burgeoning relationship between the ICJ and the right of self-defence. Since 2003 there have been three major decisions of the ICJ that have dealt directly with the law governing self-defence actions, in contrast to only two such cases in the preceding fifty years. This, then, is an opportune moment to reconsider the jurisprudence of the Court on this issue. This book is the first of its kind to comprehensively draw together and then assess the merits of this jurisprudence. It argues that the contribution of the ICJ has been confused and unhelpful, and compounds inadequacies in existing customary international law. The ICJ's fundamental conception of a primary criterion of 'armed attack' as constituting a qualitatively grave use of force is brought into question. The book then goes on to examine the underlying causes of the problems that have emerged in the jurisprudence on this crucial issue.

Winner of the American Society of International Law's Lieber Society Book Prize 2009
Dr Green's monograph demonstrates a thorough understanding of the law of self-defence, coupled with an informed and evaluative discussion of the role and function of the International Court. It is an impressive analysis of the International Court of Justice's jurisprudence on self-defence.
Professor Iain Scobbie, Judge of the American Society of International Law's Lieber Society Book Prize 2009, Sir Joseph Hotung Research Professor, School of Oriental and African Studies, London

James Green's "The International Court of Justice and Self-Defence in International Law" usefully draws together the jurisprudence of the International Court of Justice on the international law governing self-defence. The work could not be more timely in light of both contemporary State practice and the Court's recent controversial judgements on the topic. Of particular note is his analysis of the very complex, and as yet unsettled, notion of "armed attack."
Professor Michael Schmitt, Chairman of the American Society of International Law's Lieber Society Book Prize Committee, Chair of Public International Law, Durham University

Winner of the University of Reading Faculty of Social Sciences outputs prize for the best research output in 2010.

Table Of Contents

INTRODUCTION
I. The International Court of Justice and Self-Defence
II. Facts and Rulings of the Primary Cases
A. The Nicaragua Case
B. The Oil Platforms Case
C. DRC v Uganda
D. The Nuclear Weapons Advisory Opinion
E. The Israeli Wall Advisory Opinion
1 THE CRITERION OF AN ARMED ATTACK IN THE JURISPRUDENCE OF THE INTERNATIONAL COURT OF JUSTICE
I. Assessing the Jurisprudence of the Court
II. Armed Attack as the Condition Sine Qua Non for Self-Defence
A. The Requirement of an Armed Attack
B. Armed Attack in the Context of Preventative Action
III. Identifying an Armed Attack: A Question of Gravity
A. Relating Armed Attack, Use of Force and Non-intervention
B. Specific Actions
C. A Variable Standard
IV. Armed Attack as an Accumulation of Events
V. The Level of State Involvement in an Attack
VI. Armed Attack in Collective Self-Defence
VII. The Concept of Forcible Countermeasures
VIII. Conclusion
2 THE CRITERIA OF NECESSITY AND PROPORTIONALITY
I. The Caroline Incident: Facts and Legal Claims
II. The Applicability of the Caroline Formula
A. A Mythical Authority
B. Limited Applicability to Certain Types of Self-Defence
C. Customary International Law in 1837
D. Adoption of the Caroline Formula since 1842 72
E. Aspects of the Caroline Formula within Customary International Law
III. The Contemporary Content of the Caroline Criteria
IV. Necessity
A. Necessity as 'Last Resort'
B. Procedural Exhaustion of Non-forcible Measures
C. A 'Reasonableness' Test for Assessing Last Resort
V. Proportionality
VI. Temporal Aspects of Self-Defence
A. Imminence
B. Immediacy
C. Temporal Aspects of Self-Defence in the Modern World
VII. The Marginalisation of Necessity and Proportionality by the ICJ
VIII. Conclusion
3 THE TROUBLE WITH ARMED ATTACK AND THE MERGED CONCEPTIONS OF SELF-DEFENCE
I. 'Armed Attack as a Grave Use of Force': An Accurate Reflection of the Law?
II. Armed Attack as a Self-Fulfilling Prophesy?
III. The Merged Conceptions of Self-Defence
IV. The Overlapping Functions of the Merged Conceptions
V. The Different Functions of the Merged Conceptions
VI. The Gap between a Use of Force Simpliciter and an Armed Attack
VII. The Overall Indeterminacy of Self-Defence
VIII. Conclusion
4 A PROPOSAL FOR REDEFINING ARMED ATTACK
I. Defining Armed Attack Differently: Proposals Old and New
II. The General Suitability of Necessity and Proportionality
III. Implications for the 'Accumulation of Events' Problem
IV. Implications for the 'Level of State Involvement' Problem
V. Pre-empting the Issue of Preventative Self-Defence
VI. Additional Support for a Different Interpretation of Armed Attack
VII. Conclusion
5 THE ICJ: ROLES AND RESTRICTIONS
I. Non-appearance
A. Non-appearance in Nicaragua
B. Non-appearance in Use of Force Disputes Generally
II. The Underlying Roles of the ICJ
A. The Settlement of Disputes through the Application of Existing Law
B. The Development of International Law
C. Is the Development of the Law Desirable?
III. Politicisation and Decision-Making
A. The Hive Mind Fallacy
B. Judicial Bias and Politicisation
C. Dworkinian 'Principles' and Decision-Making
IV. The Suitability of the ICJ for Dealing with Use of Force Issues
A. The Justiciability of 'Political' Disputes and the Separation of Powers
B. The Need for a Legal Approach
C. Evidence-Gathering
V. Consent and the Limited Number of Self-Defence Cases
VI. Consent and Partial Jurisdiction
VII. Conclusion
CONCLUSION

Reviews

“… one cannot but highly recommend this book as a valuable contribution in an area of international law that is beset with great confusion and uncertainty.” –  Stephan Wittich, Austrian Review of International and European Law, Volume 16

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