Iz vsebine: 1. Samoobramba v obdobju pred Ligo narodov, 2. Dogovor Lige narodov, 3. Pariška pogodba, 4. 51. člen Listine Združenih narodov, 5. Individualna samoobramba, 6. Praksa kolektivne samoobrambe (s strani tretje države, regionalne organizacije, skupine držav s popolno odobritvijo Združenih narodov), sklepi: samoobramba kot poglavitna sestavina kolektivnega varnostnega sistema in kot oblika dela za pospeševanje mednarodnega miru.
The legal rules governing the use of force between States are one of the most fundamental, and the most controversial, aspects of international law. An essential part of this subject is the question of when, and to what extent, a State may lawfully use force against another in self-defence. However, the parameters of this inherent right remain obscure, despite the best efforts of scholars and, notably, the International Court of Justice. This book examines the burgeoning relationship between the ICJ and the right of self-defence. Since 2003 there have been three major decisions of the ICJ that have dealt directly with the law governing self-defence actions, in contrast to only two such cases in the preceding fifty years. This, then, is an opportune moment to reconsider the jurisprudence of the Court on this issue. This book is the first of its kind to comprehensively draw together and then assess the merits of this jurisprudence. It argues that the contribution of the ICJ has been confused and unhelpful, and compounds inadequacies in existing customary international law. The ICJ's fundamental conception of a primary criterion of 'armed attack' as constituting a qualitatively grave use of force is brought into question. The book then goes on to examine the underlying causes of the problems that have emerged in the jurisprudence on this crucial issue. Winner of the American Society of International Law's Lieber Society Book Prize 2009 Dr Green's monograph demonstrates a thorough understanding of the law of self-defence, coupled with an informed and evaluative discussion of the role and function of the International Court. It is an impressive analysis of the International Court of Justice's jurisprudence on self-defence. Professor Iain Scobbie, Judge of the American Society of International Law's Lieber Society Book Prize 2009, Sir Joseph Hotung Research Professor, School of Oriental and African Studies, London James Green's "The International Court of Justice and Self-Defence in International Law" usefully draws together the jurisprudence of the International Court of Justice on the international law governing self-defence. The work could not be more timely in light of both contemporary State practice and the Court's recent controversial judgements on the topic. Of particular note is his analysis of the very complex, and as yet unsettled, notion of "armed attack." Professor Michael Schmitt, Chairman of the American Society of International Law's Lieber Society Book Prize Committee, Chair of Public International Law, Durham University Winner of the University of Reading Faculty of Social Sciences outputs prize for the best research output in 2010.
Based on author's thesis (doctoral - European University Viadrina in Frankfurt (Oder), Germany, 2016) isued under title: The right to personal self-defence as a general principle of law and its general application in international human rights law.
Bowett, D.W.Self-Defence in International Law. New York: Praeger, . xv, 294 pp. Reprinted 2009 by The Lawbook Exchange, Ltd. ISBN-13: 978-1-58477-855-4. ISBN-10: 1-58477-855-5. Cloth. $95.* Bowett observes that the use or threat of force by any state can be a delict, an approved sanction, or a measure taken in self-defense. He examines the evolution of the doctrine in the nineteenth and early twentieth centuries, with the assumption of the existence of a state's unlimited 'right' to go to war. He then attempts to outline the limited and provisional effects of this right under the U.N. Charter. "Throughout the work there is a refusal to dogmatize or to state in absolute terms any aspect of the 'privilege' of self-defence in its present context. (...) [Bowett] is to be congratulated on producing a timely and scholarly survey of one of the most fundamental, and often abused, sovereign rights known to international law.": K.R. Simmonds, British Year Book of International Law 34 (1958) 432.
The book examines in detail one of the most controversial topic in current international law, namely the scope and extent of the right of individual self-defense. The book carefully traces the paths which have been followed in the developing legal debate on self-defense. The author uses numerous case-studies of incidents involving the use of force in alleged self-defense (such as the Entebbe Incident 1976, the Nicaragua Case 1986 or the Israeli-Lebanese conflict of 2006) which have formed the central point of scholarly debate. The author's conclusions are based not only on thorough analysis of academic discussions but also of the practice of States and international bodies, especially of the United Nations Organization. At the outset of the book the author reviews the historical context and the customary evolution of the right of self-defense. Reference is made to the famous Caroline Case of 1837, which set the necessary conditions of lawful exercise of self-defense. Next, the author examines the concept and legal nature of self-defense, carefully assessing the customary conditions of necessity, proportionality and immediacy derived from the Caroline Case. As the occurrence of an "armed attack" is a conditio sine qua non of lawful invocation of self-defense, several modalities of an armed attack are attentively evaluated such as its constituent elements, beginning or scale. The author explores, whether reactions to acts of international terrorism committed by a non-State may be based on the right of self-defense. In times of global terrorist networks it is highly desirable to attach special attention to use of force in self-defense as a remedy against serious acts of terrorism. Thorough analysis of State practice is shown on several examples from recent history - the U.S. air raid on Libya in 1986 and on Baghdad in 1993 and relatively recent air strikes on Sudan and Afghanistan in 1998. Reference is also made to the most striking example - the Al-Qaeda attack on the United States in 2001. The validity of claims of anticipatory/preventive self-defense is examined on a theoretical level and then applied to the specific details of the Israeli air strike on the Osiraq Nuclear Reactor in 1981. The two main approaches to preventive self-defense - "restrictive" and "traditional" - are then discussed in detail. Brief analysis is also devoted to the nature of the so-called - pre-emptive - self-defense indicating its current position under international law.
From the Caroline Incident to the United Nations Charter
Author: Tadashi Mori
This book defines the right of self-defence as understood in and before 1945 and offers a possible better alternative for interpreting the significance of the precondition provided for in the Article 51 of the United Nations Charter.
Shah argues that the concept of self-defense in Islamic and International law is compatible. Al-Qaeda’s declaration of Jihad does not meet the Islamic legal test. Similarly, the invasion of Iraq does not meet the international legal test. Dr Shah examines those causes attributed to Islam and non-Islamic causes of terrorism and argues that the theory of ‘reactive terror’ provides the most plausible explanation for so-called Islamic terrorism. The nature of conflicts in Afghanistan and Iraq is changing and Muslim leaders (not including Al-Qaeda or pro Anglo-American governments) may, by consensus, declare Jihad if the occupying forces do not withdraw. Such declaration would be according to Islamic and international law.
The book argues that the concept of self-defense in Islamic and International law is compatible. Al-Qaeda's declaration of Jihad does not meet the Islamic legal test. Similarly, the invasion of Iraq does meet the international legal test.
Determining the earliest point in time at which international law authorises a state to exercise its inherent right of self-defence is an issue which has been debated, but unsatisfactorily reasoned, by scholars and states since the 1960’s. Yet it remains arguably the most pressing question of law that faces the international community. This book unravels the legal and factual complications which have obscured the answer to this question. In contrast to most other works, it takes an historic approach by tracing the evolution of the rights, rules and principles of international law which have governed the use of force by states since the 16th century. Its emphasis on self-defence provides the reader with a new and complete understanding of how and why the international legal framework limits defensive force to repelling an imminent threat or use of offensive force which is directed at the territory of a state. Taking an historic approach enables this book to resurrect an understanding of the human defensive instinct which has guided the formation of the international law of self-defence. It also explains the true legal nature and scope of the inherent right of self-defence, of anticipatory self-defence and provides a definition of the legal commencement of an armed attack for the purpose of Article 51 of the Charter. Finally, the reader will receive a unique source of research materials and analysis of state practice and of scholarly works concerning self-defence and the use of force since the 16th century, which is suitable for all readers of international law around the world.
Hugo Grotius, the 17th century jurist and father of public international law, stated in his 1625 magnum opus The Law of War and Peace that "Most Men assign three Just Causes of War, Defense, the Recovery of what's our own, and Punishment."International law recognizes a right of self-defence, as the International Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force. Some commentators believe that the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures for the specific situation when an armed attack does occur. Under the latter interpretation, the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. It is also to be noted that not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.