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The Threat of Force in International Law
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Details

  • Page extent: 384 pages
  • Size: 228 x 152 mm
  • Weight: 0.744 kg

Library of Congress

  • Dewey number: 341.58
  • Dewey version: 22
  • LC Classification: KZ6374 .S78 2007
  • LC Subject headings:
    • Ultimatums
    • Aggression (International law)
    • Crimes against peace

Library of Congress Record

Hardback

 (ISBN-13: 9780521873888)

The Threat of Force in International Law Cambridge University Press
9780521873888 - THE THREAT OF FORCE IN INTERNATIONAL LAW - by Nikolas Stürchler
Frontmatter/Prelims


THE THREAT OF FORCE IN INTERNATIONAL LAW

Threats of force are a common feature of international politics, advocated by some as an economical guarantee against the outbreak of war and condemned by others as a recipe for war. Article 2(4) of the United Nations Charter forbids states to use threats of force, yet the meaning of the prohibition is unclear. This book provides the first comprehensive appraisal of the no-threat principle: its origin, underlying rationale, theoretical implications, relevant jurisprudence, and how it has withstood the test of time from 1945 to the present. Based on a systematic evaluation of state and United Nations practices, the book identifies what constitutes a threat of force and when its use is justified under the United Nations Charter. In so doing, it relates the no-threat principle to important concepts of the twentieth century, such as deterrence, escalation, crisis management, and what has been aptly described as the ‘diplomacy of violence’.

Nikolas Stürchler is a senior research fellow at the World Trade Institute, and a visiting lecturer in international and constitutional law at the University of Basel.


CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Established in 1946, this series produces high quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation.

Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention.

The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages.

General editorsJames Crawford SC FBA
Whewell Professor of International Law, Faculty of Law, and Director, Lauterpacht Research Centre for International Law, University of Cambridge
John S. Bell FBA
Professor of Law, Faculty of Law, University of Cambridge

Editorial boardProfessor Hilary Charlesworth Australian National University
Professor Lori Damrosch Columbia University Law School
Professor John Dugard Universiteit Leiden
Professor Mary-Ann Glendon Harvard Law School
Professor Christopher Greenwood London School of Economics
Professor David Johnston University of Edinburgh
Professor Hein Kötz Max-Planck-Institut, Hamburg
Professor Donald McRae University of Ottawa
Professor Onuma Yasuaki University of Tokyo
Professor Reinhard Zimmermann Universität Regensburg

Advisory committeeProfessor D. W. Bowett QC
Judge Rosalyn Higgins QC
Professor J. A. Jolowicz QC
Professor Sir Elihu Lauterpacht CBE QC
Professor Kurt Lipstein
Judge Stephen Schwebel

A list of books in the series can be found at the end of this volume.


The Threat of Force
in International Law


Nikolas Stürchler


CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521873888

© Nikolas Stürchler 2007

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2007

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

ISBN 978-0-521-87388-8 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.


For as the nature of Foule weather, lyeth not in a showre or two of rain; but in an inclination thereto of many dayes together: So the nature of War, consisteth not in actual fighting; but in the known disposition thereto, during all the time there is no assurance to the contrary.

Thomas Hobbes, Leviathan part I, chapter 13, para. 62 (1651)

Neither side wanted war over Cuba, we agreed, but it was possible that either side could take a step that – for reasons of ‘security’ or ‘pride’ or ‘face’ – would require a response by the other side, which, in turn, for the same reasons of security, pride, or face, would bring about a counterresponse and eventually an escalation into armed conflict. That was what he wanted to avoid.

Robert F. Kennedy, Thirteen Days 49 (1968) (referring to his brother John F. Kennedy)

I think the whole thing is good neighbors. If you don’t have good neighbors, you can forget the whole thing.

Chuck Searle, Shasta County cattleman; from Robert C. Ellickson, Order Without Law 1 (1991)


Contents

Forewordpage xi
Prefacexiii
List of abbreviationsxvii

1

Birth and infancy of a Charter rule: the open framework
1
Article 2(4)’s blind spot1
Traced attempts to regulate threats before 19197
The League and interwar system11
The Charter’s original conception of restraint19
The Nuremberg and Tokyo trials25
Post-Charter efforts dealing with the threat of force: defining aggression28
The drafter’s broad intent34

2

The menu of choice: a guide to interpretation
37
From intent to content37
Proposition that threat and force are coupled38
Proposition that threat and force are uncoupled43
Proposition that article 2(4) joins in with article 2(3)52
Proposition that article 2(4) requires imminence55
Proposition that article 2(4) requires coercion57
Conclusions61

3

Precedents of the International Court of Justice
65
Scarcity of case law65
UK–Albania (Corfu Channel, 1949)68
USA–Nicaragua (paramilitary activities, 1986)74
Nuclear Weapons Advisory Opinion (1996)79
Conclusions90

4

Deciphering post-Charter practice: means and limits
92
Expanding the search92
Legally relevant state practice94
The relationship between state practice and treaty104
The collection of state practice109
The sources of analysis116
The appraisal of state practice119
Chapter summary125

5

Open threats to extract concessions
127
A line drawn into the sand127
UK–Israel (Sinai incursion, 1948)129
USA–DPRK, PRC–USA (38th parallel, 1950)131
PRC–India (Sino-Indian border, 1965)135
Morocco–Spain, Algeria (Moroccan march, 1975)137
Uganda–Kenya (Idi Amin, 1976)142
Cyprus–Turkey (missile crisis, 1997–1998)146
NATO–Yugoslavia (Rambouillet, 1999)150
USA, UK–Iraq (regime change, 2002–2003)157
Conclusions168

6

Demonstrations of force
172
Deeds more than words172
USSR–Turkey (Turkish Straits, 1946)174
India–Portugal (Goa, 1961)178
USSR–Czechoslovakia (Prague Spring, 1968)184
Colombia–Nicaragua (San Andrés Islands, 1979–1980)189
USA–Libya (Gulf of Sidra, 1981)192
USA–Nicaragua (MiG-21s, 1984)196
USA–Libya (Rabta controversy, 1989)201
Iraq–Kuwait (sanctions defiance, 1994)206
Conclusions213

7

Countervailing threats or: threats in self-defence
218
Two narratives218
USA–PRC (Seventh Fleet, 1950)220
Pakistan–India (Kashmir, 1951)225
Iraq–Iran (Shatt-al-Arab, 1969–1975)227
Greece–Turkey (continental shelf, 1976)232
Syria–Jordan (Arab League summit, 1980)235
PRC–Vietnam (Spratly Islands, 1988)238
PRC–Taiwan (Lee Teng-hui, 1995–1996)240
ROK–DPRK (submarine incident, 1996)245
Conclusions249

8

Findings and conclusions
252
General stock-taking252
Criteria for violation258
Criteria for justification265
Changes in the law270
The regulation in a nutshell273

9

Epilogue: the law in operation
275
Reappraising article 2(4)’s blind spot275
Robert Ellickson’s Shasta County278
Fostering cooperation280
Lessons for the regime of force289

Annex
291
Threats of force 1945–2003291
Protracted conflicts 1918–2003311

Bibliography
313
Index332


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