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The Law Against War : The Prohibition on the Use of Force in Contemporary International Law - Olivier ;Simma,Bruno Corten

The Law Against War

The Prohibition on the Use of Force in Contemporary International Law

Hardcover

Published: 18th October 2010
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The Law against War is a translated and updated version of a book published in 2008 in French (Le droit contre la guerre, Pedone). The aim of this book is to study the prohibition of the use of armed force in contemporary positive international law. Some commentators claim that the field has undergone substantial changes arising especially since the end of the Cold War in the 1990s. More specifically, several scholars consider that the prohibition laid down as a principle in the United Nations Charter of 1945 should be relaxed in the present-day context of international relations, a change that would seem to be reflected in the emergence of ideas such as 'humanitarian intervention', 'preventive war' or in the possibility of presuming Security Council authorisation under certain exceptional circumstances. The argument in this book is that while marked changes have been observed, above all since the 1990s, the legal regime laid down by the Charter remains founded on a genuine jus contra bellum and not on the jus ad bellum that characterised earlier periods. 'The law against war', as in the title of this book, is a literal rendering of the familiar Latin expression and at the same time it conveys the spirit of a rule that remains, without a doubt, one of the cornerstones of public international law. From the Foreword by Bruno Simma 'Corten's book is weighty not just by its size, but above all through the depth and comprehensiveness with which it analyzes the entirety of what the author calls the law against war, the jus contra bellum...Corten tackles his immense task with a combination of methodical rigour, applying modern positivism and abstaining from constructions of a lex ferenda, and great sensibility for the political context and the ensuing possibilities and limitations of the legal regulation of force.'

...a comprehensive, meticulously-researched study of contemporary international law governing the use of armed force in international relations [that] offers valuable insights into the positivist methodology that underpins much of the European scholarship of international law. ...an important addition to the literature on the use of force and should really be read by all those who are interested in this fundamental area of international law. Andrew Garwood-Gowers Queensland University of Technology Law Review Volume 12(2) His exhaustive and clear study is without doubt a very useful contribution to a controversial and still fundamental field in public international law. Irene Couzigou Global Law Books November 2011 ...well worth reading to understand what the modern positivist method is, to evaluate its usefulness to the international lawyer, and to gain a better understanding of French perspectives on international law. Martin A. Rogoff American Journal of International Law September 2011

Series Editor's Prefacep. v
Forewordp. vii
Acknowledgmentsp. xi
Tables of Casesp. xvii
Introductionp. 1
A Choice of Methodp. 4
The Terms of the Methodological Debate on the Non-Use of Force: the Extensive Versus the Restrictive Approachp. 5
The Extensive Approach to the Customary Prohibition of the Use of Forcep. 6
The Restrictive Approach to the Customary Prohibition of the Use of Forcep. 15
Methodological Approach of this Bookp. 27
Reliance on a Novel Rightp. 29
The Acceptance of the Modification of the Legal Rule by the International Community of States as a Wholep. 34
What do 'Use of Force' and 'Threat of Force' mean?p. 50
What does'Force'mean?p. 51
The Boundary between Military Force and Police Measuresp. 52
Determining the Threshold: 'Force' within the Meaning of Article 2(4) of the Charterp. 66
What does 'Threat of Force' mean?p. 92
The Restrictive Meaning of 'Threat' under Article 2(4) of the Charterp. 93
The Scope of the Prohibition of Threat: the Absence of any Specific Regime for the Contemplated Use of Forcep. 111
Do the Prohibition of the Use of Force and Self-defence Apply to Non-State Actors?p. 126
Exclusion of Non-State Political Entities from the Rule's Scope of Applicationp. 127
Inapplicability of the Rule Prohibiting the Use of Force to Civil Warsp. 127
Inapplicability of the Rule to National Liberation Strugglesp. 135
The Case of Territories with Entities of Controversial Legal Statusp. 149
Exclusion of Private Groups from the Rule's Scope of Applicationp. 160
Maintaining 'International Relations' as Relations among States: the Letter and Spirit of the Rulep. 162
Maintaining 'International Relations' as Relations between States: the Interpretation of Texts in Practicep. 174
Maintaining 'International Relations' as Relations between States: the Works of the International Law Commission and of the International Court of Justicep. 186
Can Circumstances Precluding Unlawfulness be Invoked to Justify a Use of Force?p. 198
Inadmissibility in Principlep. 199
The Peremptory Character of the Rule in Article 2(4) of the Charterp. 200
Inadmissibility of Circumstances Precluding Unlawfulness Not Provided for by the Charterp. 213
Inadmissibility Confirmed in Practicep. 225
Precedents Attesting to States' General Reluctance to Invoke Circumstances Precluding Unlawfulnessp. 225
Precedents Attesting Unequivocal Condemnation of Armed Reprisalsp. 234
The Rare Precedents where Circumstances Precluding Unlawfulness have been Invoked to Justify the Use of Forcep. 236
Intervention by Invitationp. 249
The General Legal Regime of Military Intervention by Invitationp. 250
The Possibility of Consenting to Armed Intervention within the Limits of Peremptory Law (Jus Cogens)p. 250
The Requirement for Consent of the State's Highest Authoritiesp. 259
The Existence of 'Validly Given' Consentp. 266
The Legal Regime of Military Intervention by Invitation in an Internal Conflictp. 276
The Problem of Concurrent Governmentsp. 277
The Problem of the Purpose of the Intervention by Invitationp. 288
Intervention Authorised by the UN Security Councilp. 311
The General Legal Regime of Authorised Military Interventionp. 312
The Lawfulness of Military Intervention Authorised by the Security Councilp. 312
The Unlawfulness of Military Intervention 'Authorised' by Another UN Body or by Another Subject of International Lawp. 329
The Problem of Presumed Authorisationp. 348
The Absence of Recognition of Presumed Authorisation in Practicep. 349
Refusals and Obstacles of Principle to Recognition of a Presumed Authorisationp. 390
Self-Defencep. 401
'Armed Attack' According to Article 51 of the Charterp. 402
'Preventive Self-Defence' Theoriesp. 406
The Question of 'Indirect Aggression'p. 443
Necessity and Proportionalityp. 470
The Limit of Necessary Measures Adopted by the Security Councilp. 472
The General Meaning of Conditions of Necessity and Proportionalityp. 479
A Right of Humanitarian Intervention?p. 495
Non-Recognition in Legal Textsp. 497
The Dismissal of the Right of Humanitarian Intervention in Classical Legal Textsp. 498
The Persistent Refusal to Accept a 'Right of Humanitarian Intervention'p. 511
The Non-Existence of Decisive Precedentsp. 526
The Absence of Consecration of a Right of Humanitarian Intervention before 1990p. 527
The Absence of Consecration of a Right of Humanitarian Intervention since 1990p. 537
Conclusionp. 550
Selected Readingp. 555
Indexp. 559
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9781841139425
ISBN-10: 1841139424
Series: French Studies in International Law
Audience: Tertiary; University or College
Format: Hardcover
Language: English
Number Of Pages: 569
Published: 18th October 2010
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 24.4 x 16.3  x 3.7
Weight (kg): 1.02
Edition Number: 1