Pub Date : 2020-07-02DOI: 10.1080/20531702.2020.1805963
Federica I. Paddeu
ABSTRACT Is consent a defence or part of the definition of the prohibition of force? The mainstream answer has been to read (non)consent into the definition of the prohibition. The rule would thus prohibit only non-consensual force. In this article, I challenge this approach. This approach implies that there is no general reason against force in international society, that consensual force is not harmful and does not call for justification. And yet, the use of force, whether internal or international, always harms or threatens harm to international peace – the paramount purpose of the United Nations – so that maintaining international peace must count as a general reason against force. Moreover, international actors offer and expect justifications whenever force is used, including with consent. To reflect the general reason against force, the prohibition must exclude consent from its definition. Consent must be recast as a defence.
{"title":"Military assistance on request and general reasons against force: consent as a defence to the prohibition of force","authors":"Federica I. Paddeu","doi":"10.1080/20531702.2020.1805963","DOIUrl":"https://doi.org/10.1080/20531702.2020.1805963","url":null,"abstract":"ABSTRACT Is consent a defence or part of the definition of the prohibition of force? The mainstream answer has been to read (non)consent into the definition of the prohibition. The rule would thus prohibit only non-consensual force. In this article, I challenge this approach. This approach implies that there is no general reason against force in international society, that consensual force is not harmful and does not call for justification. And yet, the use of force, whether internal or international, always harms or threatens harm to international peace – the paramount purpose of the United Nations – so that maintaining international peace must count as a general reason against force. Moreover, international actors offer and expect justifications whenever force is used, including with consent. To reflect the general reason against force, the prohibition must exclude consent from its definition. Consent must be recast as a defence.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"227 - 269"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1805963","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44164143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/20531702.2020.1846326
P. Butchard
{"title":"Digest of state practice: 1 January–30 June 2020","authors":"P. Butchard","doi":"10.1080/20531702.2020.1846326","DOIUrl":"https://doi.org/10.1080/20531702.2020.1846326","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"357 - 408"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1846326","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42656832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/20531702.2020.1834767
L. Visser
ABSTRACT Intervention by invitation and collective self-defence are often dealt with as two distinct justifications to the prohibition of the use of force, thus two separate reasons for states to use force lawfully. Upon closer scrutiny, however, the two concepts appear to be quite similar as both deal with a situation where a state invites/requests the military assistance of another state. This article analyses both concepts and their criteria. It subsequently determines whether they are substantially different or in fact two sides of the same coin.
{"title":"Intervention by invitation and collective self-defence: two sides of the same coin?","authors":"L. Visser","doi":"10.1080/20531702.2020.1834767","DOIUrl":"https://doi.org/10.1080/20531702.2020.1834767","url":null,"abstract":"ABSTRACT Intervention by invitation and collective self-defence are often dealt with as two distinct justifications to the prohibition of the use of force, thus two separate reasons for states to use force lawfully. Upon closer scrutiny, however, the two concepts appear to be quite similar as both deal with a situation where a state invites/requests the military assistance of another state. This article analyses both concepts and their criteria. It subsequently determines whether they are substantially different or in fact two sides of the same coin.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"292 - 316"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1834767","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49058322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/20531702.2020.1785231
Agata Kleczkowska
ABSTRACT Treaties authorising military assistance serve as an argument for the legality of military presence, deter enemies, prove political integration of states, or support a fragile regime. A treaty should explicitly allow for the sending of troops. In addition, ad hoc consent is needed unless military assistance complies with jus ad bellum. The lack of ad hoc consent despite a clear treaty norm, as well as a lack of assistance despite both the treaty norm and ad hoc request, may amount to a breach of a treaty if the interests of one of the parties were violated by such conduct. The article is divided into three parts, which discuss: the functions of the treaties authorising the military assistance; how consent for the military assistance may be formulated in a treaty; and the form of the ad hoc consent, and the relationship between the ad hoc consent and a treaty.
{"title":"The meaning of treaty authorisation and ad hoc consent for the legality of military assistance on request","authors":"Agata Kleczkowska","doi":"10.1080/20531702.2020.1785231","DOIUrl":"https://doi.org/10.1080/20531702.2020.1785231","url":null,"abstract":"ABSTRACT Treaties authorising military assistance serve as an argument for the legality of military presence, deter enemies, prove political integration of states, or support a fragile regime. A treaty should explicitly allow for the sending of troops. In addition, ad hoc consent is needed unless military assistance complies with jus ad bellum. The lack of ad hoc consent despite a clear treaty norm, as well as a lack of assistance despite both the treaty norm and ad hoc request, may amount to a breach of a treaty if the interests of one of the parties were violated by such conduct. The article is divided into three parts, which discuss: the functions of the treaties authorising the military assistance; how consent for the military assistance may be formulated in a treaty; and the form of the ad hoc consent, and the relationship between the ad hoc consent and a treaty.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"270 - 291"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1785231","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47899202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1080/20531702.2020.1775376
Alonso Gurmendi Dunkelberg
ABSTRACT Recently, international law has seen renewed interest in the topic of intervention by invitation. Despite this, Latin American views have remained absent from the conversation. This article rediscovers the history of intervention by invitation in Latin American civil wars, focusing specifically on the issue of consent and the role it played in two key events of the region’s early legal history: the War of the Confederation and the Gorostiza Pamphlet affair. It finds that, in those cases, the right of a state to consent to intervention in a civil war was not questioned, but rather, expressly affirmed. In this vein, and despite a lack of more recent practice, while Latin America’s experience with European interventionism indicates a strong tradition of non-interventionism, its experience with civil war seems to point towards a preference for government consent over strict-abstentionism as a guiding principle.
{"title":"A legal history of consent and intervention in civil wars in Latin America","authors":"Alonso Gurmendi Dunkelberg","doi":"10.1080/20531702.2020.1775376","DOIUrl":"https://doi.org/10.1080/20531702.2020.1775376","url":null,"abstract":"ABSTRACT Recently, international law has seen renewed interest in the topic of intervention by invitation. Despite this, Latin American views have remained absent from the conversation. This article rediscovers the history of intervention by invitation in Latin American civil wars, focusing specifically on the issue of consent and the role it played in two key events of the region’s early legal history: the War of the Confederation and the Gorostiza Pamphlet affair. It finds that, in those cases, the right of a state to consent to intervention in a civil war was not questioned, but rather, expressly affirmed. In this vein, and despite a lack of more recent practice, while Latin America’s experience with European interventionism indicates a strong tradition of non-interventionism, its experience with civil war seems to point towards a preference for government consent over strict-abstentionism as a guiding principle.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"102-121"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1775376","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60042158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-11DOI: 10.1080/20531702.2020.1805886
Patryk I. Labuda
ABSTRACT Contemporary UN peacekeeping missions often have Chapter VII mandates and wide authorisations to use force, notably to protect civilians. Since 2010, however, the Security Council has created a new generation of stabilisation missions to support host governments. Peacekeepers in these missions are expected not only to protect civilians but also to combat armed groups, sometimes jointly with state security forces. While this may seem like just the next step in the UN’s gradual drift from traditional to robust peacekeeping, this article argues that stabilisation constitutes a more radical departure from conventional doctrines on the use of force by peacekeepers. In fact, stabilisation should be understood as a distinct form of UN-mandated intervention by invitation.
{"title":"UN Peacekeeping as intervention by invitation: host state consent and the use of force in Security Council-mandated stabilisation operations","authors":"Patryk I. Labuda","doi":"10.1080/20531702.2020.1805886","DOIUrl":"https://doi.org/10.1080/20531702.2020.1805886","url":null,"abstract":"ABSTRACT Contemporary UN peacekeeping missions often have Chapter VII mandates and wide authorisations to use force, notably to protect civilians. Since 2010, however, the Security Council has created a new generation of stabilisation missions to support host governments. Peacekeepers in these missions are expected not only to protect civilians but also to combat armed groups, sometimes jointly with state security forces. While this may seem like just the next step in the UN’s gradual drift from traditional to robust peacekeeping, this article argues that stabilisation constitutes a more radical departure from conventional doctrines on the use of force by peacekeepers. In fact, stabilisation should be understood as a distinct form of UN-mandated intervention by invitation.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"317 - 356"},"PeriodicalIF":0.0,"publicationDate":"2020-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1805886","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42319495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-07DOI: 10.1080/20531702.2020.1773121
E. D. Wet
This contribution questions the claim often made in scholarship that the right to self-determination would prevent military assistance at the request of the recognised government during a civil war...
这一贡献质疑了学术界经常提出的一种说法，即在内战期间，自决权将阻止应公认政府的请求提供军事援助……
{"title":"The (im)permissibility of military assistance on request during a civil war","authors":"E. D. Wet","doi":"10.1080/20531702.2020.1773121","DOIUrl":"https://doi.org/10.1080/20531702.2020.1773121","url":null,"abstract":"This contribution questions the claim often made in scholarship that the right to self-determination would prevent military assistance at the request of the recognised government during a civil war...","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"26-34"},"PeriodicalIF":0.0,"publicationDate":"2020-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1773121","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60042148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-04DOI: 10.1080/20531702.2020.1776505
R. Barber
ABSTRACT This article examines the General Assembly's history of engagement in international peace and security, and assesses the relevance of that practice to the determination of its legal competence. It first discusses the Assembly's legal competence in international peace and security as described by the UN Charter, and then provides a catalogue of precedent to illustrate that the way in which the Assembly has engaged in such matters supports the widest possible interpretation of its powers. It surveys the Assembly's engagement in four categories of cases: foreign aggression; self-determination; apartheid; and civil conflict. For each, it considers the action taken by the Security Council, how the matters came before the Assembly, and what grounds were cited for the Assembly's interventions. It then considers the nature of the Assembly's responses, including the establishment of peacekeeping forces, recommendations regarding sanctions and the use of military force, and recommendations made to the Security Council.
{"title":"A survey of the General Assembly's competence in matters of international peace and security: in law and practice","authors":"R. Barber","doi":"10.1080/20531702.2020.1776505","DOIUrl":"https://doi.org/10.1080/20531702.2020.1776505","url":null,"abstract":"ABSTRACT This article examines the General Assembly's history of engagement in international peace and security, and assesses the relevance of that practice to the determination of its legal competence. It first discusses the Assembly's legal competence in international peace and security as described by the UN Charter, and then provides a catalogue of precedent to illustrate that the way in which the Assembly has engaged in such matters supports the widest possible interpretation of its powers. It surveys the Assembly's engagement in four categories of cases: foreign aggression; self-determination; apartheid; and civil conflict. For each, it considers the action taken by the Security Council, how the matters came before the Assembly, and what grounds were cited for the Assembly's interventions. It then considers the nature of the Assembly's responses, including the establishment of peacekeeping forces, recommendations regarding sanctions and the use of military force, and recommendations made to the Security Council.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"8 1","pages":"115 - 156"},"PeriodicalIF":0.0,"publicationDate":"2020-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1776505","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46837405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-14DOI: 10.1080/20531702.2020.1761656
M. Byers
ABSTRACT This article – which updates and builds on an earlier piece published in Global Governance in 2004 – concerns the deliberate use of redundancies, contradictions, imprecisions and other ambiguities in UN Security Council resolutions on the use of force, centrally including Resolution 1441 on Iraq, Resolution 1973 on Libya, and Resolution 2249 on Syria and Iraq. ‘Constructive ambiguity’, a term generally attributed to former US Secretary of State Henry Kissinger, is employed in many areas of international law. This article identifies five different forms of constructive ambiguity found in Security Council resolutions and suggests reasons for why this drafting strategy is used. It concludes by considering the implications of this research for our understanding of the role of international law in international peace and security. It finds that ambiguity, deployed deliberately and strategically, is not the ‘design weakness’ that some scholars consider it to be.
{"title":"Still agreeing to disagree: international security and constructive ambiguity","authors":"M. Byers","doi":"10.1080/20531702.2020.1761656","DOIUrl":"https://doi.org/10.1080/20531702.2020.1761656","url":null,"abstract":"ABSTRACT This article – which updates and builds on an earlier piece published in Global Governance in 2004 – concerns the deliberate use of redundancies, contradictions, imprecisions and other ambiguities in UN Security Council resolutions on the use of force, centrally including Resolution 1441 on Iraq, Resolution 1973 on Libya, and Resolution 2249 on Syria and Iraq. ‘Constructive ambiguity’, a term generally attributed to former US Secretary of State Henry Kissinger, is employed in many areas of international law. This article identifies five different forms of constructive ambiguity found in Security Council resolutions and suggests reasons for why this drafting strategy is used. It concludes by considering the implications of this research for our understanding of the role of international law in international peace and security. It finds that ambiguity, deployed deliberately and strategically, is not the ‘design weakness’ that some scholars consider it to be.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"8 1","pages":"91 - 114"},"PeriodicalIF":0.0,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1761656","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48349670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/20531702.2020.1773178
P. Butchard
ABSTRACT This article builds upon previous research by the author into the mechanics and interpretation of Article 2(4) of the UN Charter, which sought to explain the apparent contradiction between the status of the prohibition as a non-derogable norm of jus cogens and its well-recognised ‘exceptions’. Turning to the role of state consent within the prohibition, this article explores the scope and limits of a state’s ability to consent to the use of force within its territory – for example, by requesting military assistance in the context of a civil war – in light of this mechanical interpretation. Ultimately, this article argues that the prohibition of force still applies where a state consents or requests military assistance, because the principles of territorial integrity and political independence, alongside the ‘purposes of the United Nations’, can still prohibit some forms of military force even where consent has been given by the state concerned.
{"title":"Territorial integrity, political independence, and consent: the limitations of military assistance on request under the prohibition of force","authors":"P. Butchard","doi":"10.1080/20531702.2020.1773178","DOIUrl":"https://doi.org/10.1080/20531702.2020.1773178","url":null,"abstract":"ABSTRACT This article builds upon previous research by the author into the mechanics and interpretation of Article 2(4) of the UN Charter, which sought to explain the apparent contradiction between the status of the prohibition as a non-derogable norm of jus cogens and its well-recognised ‘exceptions’. Turning to the role of state consent within the prohibition, this article explores the scope and limits of a state’s ability to consent to the use of force within its territory – for example, by requesting military assistance in the context of a civil war – in light of this mechanical interpretation. Ultimately, this article argues that the prohibition of force still applies where a state consents or requests military assistance, because the principles of territorial integrity and political independence, alongside the ‘purposes of the United Nations’, can still prohibit some forms of military force even where consent has been given by the state concerned.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"35 - 73"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1773178","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46386625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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