Revisiting the Concept of Defence in the Jus ad Bellum: The Dual Face of Defence

Revisiting the Concept of Defence in the Jus ad Bellum: The Dual Face of Defence

by Johanna Friman


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Revisiting the Concept of Defence in the Jus ad Bellum: The Dual Face of Defence by Johanna Friman

The purpose of the jus ad bellum is to draw a line in the sand: thus far, but no further. In the light of modern warfare, a State should today have an explicitly recognized and undisputed right of delimited unilateral defense, not only in response to an occurring armed attack, but also in interception of an inevitable or imminent armed attack. This book, however, makes it evident that unilateral interception is not incontestably compatible with the modern right of self-defence in Article 51 of the UN Charter. Then again, unilateral defense need not forever be confined to self-defence only, wherefore the book proposes that the concept of defense may best be modernized by a clear legal division into responsive and interceptive defense. Since both threat and use of force are explicitly prohibited in Article 2(4) of the UN Charter, the book further recommends that both responsive and interceptive defense should be explicitly excepted from this prohibition in Article 51 of the UN Charter. The modern jus ad bellum should thus legally recognize a dual face of defense: responsive self-defense if an armed attack occurs, and interceptive necessity-defense if a grave and urgent threat of an armed attack occurs. Because without a clarifying and modernizing revision, the concept of defense will become irreparably blurred until ultimately completely dissolved into the ever shifting sands of war. Revised Dissertation. (Series: Studies in International Law, Vol. 66) [Subject: Public International Law]

Product Details

ISBN-13: 9781509906970
Publisher: Hart Publishing
Publication date: 04/06/2017
Series: Studies in International Law
Pages: 264
Product dimensions: 6.00(w) x 9.30(h) x 0.70(d)

Table of Contents

Foreword vii

Preface ix

Table of Cases xi

Table of Selected Legislation and Related Documents xiii

1 The Faces of War 1

I The Faces of War-Prologue 1

II The Dual Face of Defence-Opening Remarks 15

2 The First Face of Defence: Self-defence 23

I The Legal Evolution of the Concept of Self-defence 23

A A Historical Retrospect 24

B Tools of Interpretation 38

C Reflections on the Faces of Force 49

II The Concept of Self-defence 53

A The Primary Prerequisite of Self-defence 55

i Ratione Materiae 56

ii Ratione Temporis 60

iii Ratione Personae 66

B The Secondary Prerequisites of Self-defence 74

i Necessity 78

ii Immediacy 81

iii Proportionality 84

a Proportionality as a quantitative determinant of self-defence 86

b Proportionality as a functional determinant of self-defence 91

C Collective Self-defence 93

III Concluding Remarks 96

3 The Second Face of Defence: Necessity-defence 99

I The Legal Evolution of the Concept of Necessity 99

A A Historical Retrospect 100

B Unmasking State Responsibility 111

C State of Necessity 131

II The Concept of Necessity-defence 142

A The Primary Prerequisite of Necessity-defence 149

i Ratione Materiae 152

ii Ratione Temporis 161

a Anticipatory necessity-defence 170

b Preemptive necessity-defence 173

iii Ratione Persoriae 177

B The Secondary Prerequisites of Necessity-defence 181

i Exigency 181

ii Immediacy 184

iii Functionality 187

C Collective Necessity-defence 193

III Concluding Remarks and Explanatory Memorandum 195

A Explanatory Memorandum: Proposal for an Amendment of Article 51 of the Charter of the United Nations 197

i Introduction 197

ii Intentions and Purpose of the Proposal 198

iii Detailed Review of the Proposal 200

a Necessity-defence 201

b Threat of an Armed Attack 201

c Gravity of the Threat 202

d Urgency of the Threat 202

e Anticipation 203

f Preemption 204

g Legal Symmetry 205

h Exigency 205

i Immediacy 206

j Functionality 206

iv Compatibility with the Charter of the United Nations 207

v Final Remarks 209

4 Whitherward Warfare? 211

I The Dual Face of Defence-Closing Remarks 211

II The Faces of War-Epilogue 220

Bibliography 229

Index 235

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