This book is the collective use of force within the framework of the Charter, whose ambitious project is based on the premise that armed force can be resorted to exclusively in the common interest. It begins with a short discussion of the powers granted to the Security Council for the discharge of its primary responsibility for the maintenance of international peace and security, and the conditions under which these powers may be exercised. The United States, supported by its NATO allies, or at least some of them, openly challenged the authority of the Security Council and attempted to downgrade its authorisation from a legal requirement to a matter of political convenience. The book deals with the use of force by States either individually or jointly. Through the lenses of the interaction between the Charter and customary international law, it considers the evolution of the right to self-defence, the only exception expressly provided for in the Charter, and the possible re-emergence of other exceptions. The book focuses in particular on the controversial question concerning the legality of the threat or use of nuclear weapons in self-defence and of the pre-emptive military action against threats posed by these weapons. Often referring to the recent Iraqi crisis, it further deals with the collective and unilateral means at the disposal of the United Nations and its members to enforce disarmament obligations and tackle the proliferation of weapons of mass destruction.
As a result of the criticism against investment treaties, South Africa terminated several of its investment treaties and adopted a piece of legislation on the protection of investment. Against this background, the chapter analyzes and compares the protection provided under the Act with the protection provided under investment treaties. Following a thorough examination, the chapter argues that the Act offers a level of protection definitely lower than that normally provided by international investment treaties from both substantive and procedural standpoints. The chapter ends on a pessimistic note regarding the appropriateness of South Africa’s response to the criticism against investment treaties and offers alternative options for the way forward.
This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. Using the collective system envisaged in the UN Charter as a paradigm, the book aims to provide a systematic view of the rules governing the use of force in international law. It is dedicated to the collective use of force within the framework of the Charter, whose ambitious project is based on the premise that armed force can be resorted to exclusively in the common interest. The book describes the collective security system as envisaged in the Charter. It deals with the use of force by States either individually or jointly. Considering the magnitude of recent developments, the book deals with the use of force in the related fields of international terrorism and weapons of mass destruction.
This chapter describes the collective security system as envisaged in the United Nations Charter. It begins with some basic considerations on the pivotal role of Art. 39 of the Charter. Next, the chapter deals with the legal basis of the Security Council's powers and the conditions under which such powers can be exercised. These powers are then analysed following the two-fold distinction between non-military and military measures. The power to impose the adoption of economic enforcement measures necessarily presupposes the power to make these measures permitted, had they been otherwise contrary to international law. The chapter focuses on the legal effects of the Security Council's resolutions. It concludes with a discussion on the limits to the Security Council's powers and the remedies against their violations.
This chapter discusses the extent to which the collective security system established in the United Nations Charter could function in the 1990s in spite of the non-implementation of Arts. 43 et seq. of the Charter. The enlargement of the notion of threat to international peace, already noticeable in 1992, is one of the most striking features of the Security Council's recent practice. The prevailing and more convincing view admits that the Security Council may overcome the non-implementation of Art. 43 through the conclusion of ad hoc agreements with Member States. The main lesson learned from the United Nations' recent practice is that peace-keeping and peace-enforcement are mutually exclusive options. The authorisation practice constitutes the Security Council's attempt to over-come the non-implementation of Art. 43 of the Charter as an alternative to enforcement measures put at the disposal of the United Nations by Member States on an ad hoc basis.
This chapter deals with the numerous recent cases of use of force without, or with controversial, Security Council authorisation and assesses their impact on the collective security system. A question germane to the authorisation ex post facto concerns the admissibility of implied authorisations. The common feature of the cases examined is the negative impact they had, in different ways and degrees, upon the collective security system and the limited centralised control over the use of force ensured by the authorisation practice. The United States' recent attitude reveals the intention to dismantle the institutionalised hegemonic collective system established by the United Nations Charter, whose functioning was to a limited extent possible through the authorisation practice. The norms on the use of force by regional organisations embodied in Chapter VIII of the Charter were the result of lengthy negotiations which had led to a substantial revision of the Dumbarton Oaks proposals.
The collective security system and the unilateral or joint use of force are not sealed compartments. Their interaction is manifest in Art. 51 of the UN Charter, which temporally limits the right to self-defence until the Security Council discharges its responsibilities. This chapter deals preliminarily with two general questions, namely the relationship between the rules on the use of force embodied in the Charter and those existing under customary law, and the alleged dependence of the ban on the use of force on the effective functioning of the collective security system. It deals with the relationship between the rules on this field existing under the Charter and under customary international law. The rest of the chapter is dedicated to three exceptions to the general ban on the use of force that have been the object of controversy: armed reprisals, rescue operations of national abroad, and intervention on humanitarian grounds.
This chapter deals with the use of force in the related fields of international terrorism and weapons of mass destruction. It discusses in the first place to what extent the notion of self-defence adequately protects States against international terrorism. Linking the armed attack already consumed with the possible military reaction would lead to the repudiation of the defensive character of self-defence. The chapter considers the lawfulness of anti-terrorist military action on the ground of necessity. The lawfulness of armed reprisals intended to curb international terrorism can be neither excluded nor upheld on the basis of theoretical or formal arguments. Finally, the chapter considers collective and unilateral measures taken in order to ensure compliance with disarmament obligations, neutralise threats involving weapons of mass destruction and curb the proliferation and trafficking of these weapons.