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This article considers the legality of the use of defensive force by a state against terrorists on the territory of a third state from where terrorists launched the attack. It first considers justifications based on attribution and on the "unable and unwilling" test. It concludes that these constructions leave many legal, factual, and conceptual questions unsettled. It thus goes on to put forward a construction based on the two facets of self-defence: a primary rule and substantive right which justifies the use of force against terrorist attacks; and a circumstance precluding wrongfulness (CPW) which excuses responsibility for the incidental breach of the territorial state's sovereignty. The article then argues that the territorial state can claim compensation for any material loss caused by the self-defence action. This construction offers a more coherent understanding of the operation of self-defence and a stronger legal basis for using defensive force against terrorists on the territory of third states. [ABSTRACT FROM AUTHOR]

Primary and secondary norms represent complementary systems of governance, one specifying the substantive obligations of states and the other imposing consequences upon deviation. Treaties which contain both primary and secondary norms generally operate as self-contained regimes as they oust the application of secondary norms under customary international law, such as those that might be invoked to justify deviations. Conflict, however, arises when the treaty norms seem to overlap with their customary counterpart, while remaining technically disjunct in their form. Derogation and limitation clauses in several international human rights instruments provide conditions in which a violation would be justified. On the other hand, customary international law also prescribes circumstances in which violations cannot be considered wrongful. This article addresses whether the existence of the former in treaties precludes the invocation of the latter. It also highlights the difficulty which arises in the interpretation of those instruments in which such derogation and limitation clauses are absent. [ABSTRACT FROM AUTHOR]

The League of Nations set up The Hague codification conference that focused, among three specific agendas, on the responsibility of states for damage caused in their territory to the person or property of foreigners. Scholarship has dominantly ignored or considered the work of the League of Nations in the law of state responsibility as a failure, starting the story of the codification with the International Law Commission. This article proposes to rethink the dominant view and claims that the League of Nations' codification process not only initiated, but substantially contributed to the codification of the law of state responsibility, leading to lasting methods, concepts, principles and norms that have been integrated in the contemporary canon of the rules of state responsibility. [ABSTRACT FROM AUTHOR]

It is a truth universally acknowledged that states can consent to the military presence of other states on their territory. This is better known as intervention by invitation. Yet many issues surrounding this concept remain unclear or are too easily accepted, e.g. its name and its place within the rules of jus ad bellum. This article seeks to clarify and resolve these issues. First, an analysis is conducted into what the two terms intervention and invitation actually entail. The term intervention is contrasted with the use of force and the entire concept of intervention by invitation is differentiated from collective self-defence. It is concluded that the threshold of force has been met and thus the focus should be placed on the rules regulating this field of law, rather than the rules of non-intervention. The concept would be more aptly labelled as the use of force by invitation. Second, this article examines where intervention by invitation finds its place in relation to the prohibition of the use of force. Alternative perspectives are investigated encompassing the scope of Article 2(4) UN Charter and the circumstances precluding wrongfulness under the rules of state responsibility, of which consent is of particular relevance here. This article concludes that intervention by invitation falls outside the scope of Article 2(4) as the force is not used within international relations. The prohibition of the use of force therefore does not apply to intervention by invitation. Consequently, an action of intervention by invitation is legal. [ABSTRACT FROM AUTHOR]

Roberto Ago, the International Law Commission’s second Special Rapporteur on the topic of state responsibility for internationally wrongful acts, defined self-defence as a faculté of a state to use force in response to an act of another state through which a breach of the principal obligation under Article 2(4) Charter is committed. On this basis, he then inserted a provision in Chapter V to Part One of the Draft Articles on State Responsibility expressing self-defence as a specific factual circumstance precluding the wrongfulness of the use of force which constitutes a response to state aggression. This conception of self-defence, although misunderstood from the onset, remained in the backdrop of the study of the law of state responsibility for a considerable period. It was only dismantled during the reign of the last Special Rapporteur on the topic of state responsibility, James Crawford. The last Rapporteur, at the onset, submitted that it is not the function of the Draft Articles to specify the content of the primary rules, including that referred to in Article 51 Charter. He then redefined the function of the circumstance of self-defence as that of precluding the wrongfulness of non-performance of certain obligations other than the general prohibition insofar as such non-performance is connected with the exercise of the right under Article 51 Charter.This contribution first scrutinises this paradigmatic shift and finds it to be symptomatic of the conviction on the part of Crawford that the notion of self-defence could also encompass the use of force against speculative threats of state origin as well as actual threats that emanate from individuals or groups which are disconnected from the organisation of any state. It then uses this finding as a springboard towards the examination of the controversy surrounding the notion of self-defence under international law. In that connection, it first outlines the findings of the World Court on the requirements of armed attack and attribution and describes the points of criticism which those findings have elicited. Next, it argues that state practice is unable to settle the controversy concerning the scope of the concept of self-defence and that the question whether or not valid invocation of Article 51 Charter must be preceded by a state’s breach of the general prohibition can be conclusively answered only as part of efforts geared to devising an explanatory account of self-defence which accurately translates its normative origins and which preserves its logical relations with the other, more ordinary but fundamental legal concepts. The study’s conclusion is that respect for such criteria demands that the notion of self-defence under international law be defined in line with Ago’s proposition, i.e. in terms of a de facto situation, recognised by a secondary rule, whereby the principal obligation under the primary rule contained in Article 2(4) Charter is pushed into abeyance to the detriment of a state which conducts itself in breach of that very same obligation in respect of another state; or, correlatively, in terms of a factual circumstance precluding the wrongfulness of the use of force which constitutes a riposte to an unlawful armed attack of another state.

This study considers self-defence in its function as a circumstance precluding wrongfulness, as codified in Article 21 of the ILC's Articles on State Responsibility. The study examines the development of this provision in the work of the ILC and considers relevant practice by States and international tribunals in relation to the defence. The study explains that self-defence has two functions in international law. The right of self-defence, codified in Article 51 of the UN Charter and recognised in customary international law, is an exception to the prohibition of force. In the ILC terminology, the right of self-defence is a primary rule. The circumstance precluding wrongfulness of self-defence, contained in Article 21 ARS, serves to preclude the wrongfulness of potential breaches of obligations (other than the prohibition of force) binding the States involved in an armed conflict, so long as the breach of those obligations is a collateral effect of self-defensive forcible measures adopted in conformity with the requirements of the right of self-defence under international law. In the ILC terminology, this is self-defence in its function as a secondary rule. [ABSTRACT FROM AUTHOR]

In view of the challenges frequently encountered in providing assistance to civilians in opposition-held territories, consideration is sometimes given to cross-border relief operations. Such operations raise numerous legal questions, including whose consent is required; what constitutes arbitrary withholding of consent; what the consequences of withholding of consent are, both for those wishing to provide assistance and for the parties withholding consent; and what alternatives exist for providing assistance in such circumstances. [ABSTRACT FROM PUBLISHER]

This contribution, stemming from a presentation made at the Conference 'Sir Hersch Lauterpacht - Lawyer of Two Cultures', organized by the Embassy of the Republic of Poland and the Lauterpacht Centre for International Law of the University of Cambridge on 5-6 November 2008, addresses the current debate on the legality of the use of force in international relations. More specifically, it considers the possibility and applicability of the 'preclusion of wrongfulness' argument with respect to the use of force. It is argued that although circumstances precluding wrongfulness were never expressly invoked in the context of the use of force, such a possibility may be worth consideration. [ABSTRACT FROM AUTHOR]

The article discusses the development of force majeure, a common clause in contracts that essentially frees both parties from liability when circumstances beyond the control of parties prevent one or both parties from fulfilling their obligations under a contract, in international law. It examines development of force majeure as a concept in the field of state responsibility and assesses codification work undertaken by the U.S. International Law Commission (ILC) against these developments.