Pub Date : 2020-01-02DOI: 10.1080/20531702.2020.1774195
Max Brookman-Byrne
ABSTRACT Evolving practices of conflict – towards remote, light-foot, long-term, ‘liquid’ interventions – make interrogations into the consent of one state to the use of force by another on its territory (intervention by invitation) increasingly pressing. In Pakistan, the US carried out remote airstrikes for nine years on the basis of secret consent, raising the question of whether valid consent contains a requirement of publicity. An examination of state responsibility, jus ad bellum, and examples of state practice from 1944 to the present shows that, though consent tends to be publicised, in a doctrinal legal sense there is insufficient evidence to suggest an obligation to publicise. This article argues that the absence of a requirement to publicise suggests consent does not restrict the use of force, but enables it, revealing a doctrine that lends itself to the service of hegemony and the projection of power by states.
{"title":"Intervention by (secret) invitation: searching for a requirement of publicity in the international law on the use of force with consent","authors":"Max Brookman-Byrne","doi":"10.1080/20531702.2020.1774195","DOIUrl":"https://doi.org/10.1080/20531702.2020.1774195","url":null,"abstract":"ABSTRACT Evolving practices of conflict – towards remote, light-foot, long-term, ‘liquid’ interventions – make interrogations into the consent of one state to the use of force by another on its territory (intervention by invitation) increasingly pressing. In Pakistan, the US carried out remote airstrikes for nine years on the basis of secret consent, raising the question of whether valid consent contains a requirement of publicity. An examination of state responsibility, jus ad bellum, and examples of state practice from 1944 to the present shows that, though consent tends to be publicised, in a doctrinal legal sense there is insufficient evidence to suggest an obligation to publicise. This article argues that the absence of a requirement to publicise suggests consent does not restrict the use of force, but enables it, revealing a doctrine that lends itself to the service of hegemony and the projection of power by states.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"101 - 74"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1774195","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42354977","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: 10.1080/20531702.2020.1773120
E. Lieblich
ABSTRACT Governments may lawfully request assistance from other states in many instances. However, once a government is challenged internally, things become complex. The key question is when, if at all, governments possess the legal authority to invite assistance against armed opposition? This article does not answer this question doctrinally or normatively. Rather, it explores why it remains so difficult to resolve, by utilising three theoretical approaches to international law: instrumental, critical, and ethical. Instrumentally, it is difficult to agree on desirable outcomes, or on a general standard on authority that would achieve them. From a critical perspective, standards on authority collapse into politics. Ethically, the question of authority to consent is entangled with the authority to resort to force internally, an issue scantly addressed by international law. Ultimately, this article seeks to uncover key theoretical problems that must be overcome in order to defend a plausible standard on authority to consent.
{"title":"Why can’t we agree on when governments can consent to external intervention? A theoretical inquiry","authors":"E. Lieblich","doi":"10.1080/20531702.2020.1773120","DOIUrl":"https://doi.org/10.1080/20531702.2020.1773120","url":null,"abstract":"ABSTRACT Governments may lawfully request assistance from other states in many instances. However, once a government is challenged internally, things become complex. The key question is when, if at all, governments possess the legal authority to invite assistance against armed opposition? This article does not answer this question doctrinally or normatively. Rather, it explores why it remains so difficult to resolve, by utilising three theoretical approaches to international law: instrumental, critical, and ethical. Instrumentally, it is difficult to agree on desirable outcomes, or on a general standard on authority that would achieve them. From a critical perspective, standards on authority collapse into politics. Ethically, the question of authority to consent is entangled with the authority to resort to force internally, an issue scantly addressed by international law. Ultimately, this article seeks to uncover key theoretical problems that must be overcome in order to defend a plausible standard on authority to consent.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"25 - 5"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1773120","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44578787","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: 10.1080/20531702.2020.1783867
T. Ruys
Since the end of the Cold War, jus ad bellum debates have focused by and large on two main bones of contention. First, the vexing issue of the permissibility of unilateral humanitarian intervention has surfaced repeatedly in the wake of humanitarian crises in Kosovo, Syria and elsewhere. Second, with the advance of transnational terrorist groups such as Al Qaeda and ‘Islamic State’ – and, to lesser extent, the proliferation of weapons of mass destruction – the outer boundaries of the right of self-defence have been the subject of ample discussion. The legality of self-defence against attacks by non-state actors in particular has attracted enormous attention among states and international lawyers in the post 9/11 era. By contrast, far less attention has been paid to so-called ‘military assistance on request’ or – as some would have it ‘intervention by invitation’ (even if the idea of a consensual ‘intervention’ is, strictly speaking, a contradictio in terminis). It is striking, for instance, that Louise Doswald-Beck’s seminal article in the 1985 British Yearbook of International Law remains perhaps the most well-known treatise on the topic. Recent years have nonetheless seen a striking resurgence of – at times highly problematic – cases of ‘military assistance on request’, raising important questions about the legal parameters of this justification for the use of force. Without claiming exhaustivity, recent cross-border military operations that have been justified on the basis of consent include the Saudi-led operation Decisive Storm in Yemen to support President Hadi against the Houthi rebels (2015-ongoing); the Russian intervention in Syria (2015-ongoing) pursuant to a request from the Assad regime; the actions of the US-led coalition against the Islamic State (Operation Inherent Resolve) on Iraqi soil on the invitation of the Iraqi authorities (2014-ongoing); the Kenyan intervention in Somalia (inter alia in the context of Operation Linda Nchi (2011)); France’s Opération Serval in Mali (2012-ongoing (nowOpération Barkhane)); the 2017 ECOWAS intervention in The Gambia, at the request of President-elect Adama Barrow; the Russian intervention in Crimea (2014), justified in part by reference to an
{"title":"Introduction","authors":"T. Ruys","doi":"10.1080/20531702.2020.1783867","DOIUrl":"https://doi.org/10.1080/20531702.2020.1783867","url":null,"abstract":"Since the end of the Cold War, jus ad bellum debates have focused by and large on two main bones of contention. First, the vexing issue of the permissibility of unilateral humanitarian intervention has surfaced repeatedly in the wake of humanitarian crises in Kosovo, Syria and elsewhere. Second, with the advance of transnational terrorist groups such as Al Qaeda and ‘Islamic State’ – and, to lesser extent, the proliferation of weapons of mass destruction – the outer boundaries of the right of self-defence have been the subject of ample discussion. The legality of self-defence against attacks by non-state actors in particular has attracted enormous attention among states and international lawyers in the post 9/11 era. By contrast, far less attention has been paid to so-called ‘military assistance on request’ or – as some would have it ‘intervention by invitation’ (even if the idea of a consensual ‘intervention’ is, strictly speaking, a contradictio in terminis). It is striking, for instance, that Louise Doswald-Beck’s seminal article in the 1985 British Yearbook of International Law remains perhaps the most well-known treatise on the topic. Recent years have nonetheless seen a striking resurgence of – at times highly problematic – cases of ‘military assistance on request’, raising important questions about the legal parameters of this justification for the use of force. Without claiming exhaustivity, recent cross-border military operations that have been justified on the basis of consent include the Saudi-led operation Decisive Storm in Yemen to support President Hadi against the Houthi rebels (2015-ongoing); the Russian intervention in Syria (2015-ongoing) pursuant to a request from the Assad regime; the actions of the US-led coalition against the Islamic State (Operation Inherent Resolve) on Iraqi soil on the invitation of the Iraqi authorities (2014-ongoing); the Kenyan intervention in Somalia (inter alia in the context of Operation Linda Nchi (2011)); France’s Opération Serval in Mali (2012-ongoing (nowOpération Barkhane)); the 2017 ECOWAS intervention in The Gambia, at the request of President-elect Adama Barrow; the Russian intervention in Crimea (2014), justified in part by reference to an","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"1 - 4"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1783867","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44581730","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: 10.1080/20531702.2020.1782664
J. Hursh
ABSTRACT This article considers international humanitarian law violations and legal responsibility in relation to US military support provided to the Saudi Arabia-led coalition fighting a non-international armed conflict in Yemen. Through this example, this article examines the broader issue of states not party to an armed conflict providing military assistance to states that are party to a conflict in a manner that may blur legal responsibility and undermine accountability. To do so, it considers this military assistance in relation to the use of force, state responsibility, and international humanitarian law. First describing the US military assistance provided to the Saudi coalition, the article then assesses the lawfulness of the coalition’s use of force, whether the United States became a party to conflict, if the United States violated the law of state responsibility, and finally whether the United States adhered to its Common Article 1 duty to respect and to ensure respect.
{"title":"International humanitarian law violations, legal responsibility, and US military support to the Saudi coalition in Yemen: a cautionary tale","authors":"J. Hursh","doi":"10.1080/20531702.2020.1782664","DOIUrl":"https://doi.org/10.1080/20531702.2020.1782664","url":null,"abstract":"ABSTRACT This article considers international humanitarian law violations and legal responsibility in relation to US military support provided to the Saudi Arabia-led coalition fighting a non-international armed conflict in Yemen. Through this example, this article examines the broader issue of states not party to an armed conflict providing military assistance to states that are party to a conflict in a manner that may blur legal responsibility and undermine accountability. To do so, it considers this military assistance in relation to the use of force, state responsibility, and international humanitarian law. First describing the US military assistance provided to the Saudi coalition, the article then assesses the lawfulness of the coalition’s use of force, whether the United States became a party to conflict, if the United States violated the law of state responsibility, and finally whether the United States adhered to its Common Article 1 duty to respect and to ensure respect.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"122 - 155"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1782664","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45947095","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: 10.1080/20531702.2020.1783866
P. Butchard
{"title":"Digest of state practice 1 July – 31 December 2019","authors":"P. Butchard","doi":"10.1080/20531702.2020.1783866","DOIUrl":"https://doi.org/10.1080/20531702.2020.1783866","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"7 1","pages":"156 - 224"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20531702.2020.1783866","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41438746","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}
{"title":"Humanitarian intervention and the responsibility to protect","authors":"R. Janik","doi":"10.4324/9780429955457-7","DOIUrl":"https://doi.org/10.4324/9780429955457-7","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82272565","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}
{"title":"The prohibition of the threat or use of force","authors":"R. Janik","doi":"10.4324/9780429955457-3","DOIUrl":"https://doi.org/10.4324/9780429955457-3","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88682187","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}
{"title":"Self-defense","authors":"R. Janik","doi":"10.4324/9780429955457-5","DOIUrl":"https://doi.org/10.4324/9780429955457-5","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87858526","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}
{"title":"Peacekeeping","authors":"R. Janik","doi":"10.4324/9780429955457-8","DOIUrl":"https://doi.org/10.4324/9780429955457-8","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"338 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77816160","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}
{"title":"Intervention by invitation","authors":"R. Janik","doi":"10.4324/9780429955457-6","DOIUrl":"https://doi.org/10.4324/9780429955457-6","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"6 1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78060535","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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