دانلود کتاب Justification and Excuse in International Law: Concept and Theory of General Defences

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Cover
Half-title
Series information
Title page
Copyright information
Dedication
Table of contents
Foreword
Acknowledgements
Table of cases
Select table of treaties and others documents
List of abbreviations
Introduction
Part I Justification and Excuse in International Law
1 Justification and Excuse in International Law
1.1 Introduction
1.2 A Primer on Justification and Excuse
1.3 Justification and Excuse in the Law of State Responsibility
1.3.1 The Distinction in Positive Law
1.3.2 Reopening the Case: Justification and Excuse in the Articles on State Responsibility
1.3.2.1 García-Amador: Total and Partial Excuse
1.3.2.2 Ago: The Irrelevance of Excuses
Ago’s Report and Its Reception in the International Law Commission
Missing Link: Off-the-Record Rejection of Excuses?
1.3.2.3 Crawford: Justifications or Excuses
1.3.2.4 The Position of the ILC: An Invitation for Further Development
1.3.3 Defences in the World of Primary and Secondary Rules
1.3.3.1 Primary and Secondary Rules in the Law of Responsibility
1.3.3.2 Justification and Excuse: Primary or Secondary Rules?
1.4 Interim Conclusion: Systemic Possibility of the Distinction in International Law
2 Practical Consequences of the Distinction in International Law
2.1 Introduction
2.2 Effect on Reparation: The Problem of Satisfaction
2.3 Responsibility of Accessories
2.4 Reacting Against Wrongfulness
2.4.1 Countermeasures Against Justified Conduct or Excused Actors
2.4.2 Law of Treaties: Material Breach, Justification and Excuse
2.5 Effect on Compensation for Material Loss
2.5.1 Excuses and the Duty of Compensation
2.5.2 Justifications and the Duty of Compensation
2.5.3 Third Parties and the Duty of Compensation
2.5.4 Conclusion on the Duty of Compensation
2.6 Normative Considerations
2.7 Interim Conclusion: A Distinction with a Difference
3 Classifying Defences into Justification and Excuse in International Law
3.1 Introduction
3.2 Concept and Theory of Justification
3.2.1 Concept of Justification
3.2.1.1 Defining Justifications
3.2.1.2 Justifications as Permissions
3.2.1.3 Justifications and the Breach of International Law
3.2.1.4 Justified Conduct: Lawful or ‘Non Wrongful’?
3.2.1.5 Justifications: ‘Deeds’ or ‘Reasons’?
3.2.2 Theorising Justifications in International Law
3.3 Concept and Theory of Excuse
3.3.1 Concept of Excuse
3.3.1.1 Defining Excuses in International Law
3.3.1.2 Excuses and Corporate Entities
3.3.2 Theorising Excuses in International Law
3.3.3 Excuses and Fault
3.4 Taxonomy of Defences: The Role of Concept and Theory
3.5 General Conclusion to Part I
Part II Classifying the Defences in the Articles on State Responsibility
4 Consent
4.1 Introduction
4.2 Development of the Plea of Consent
4.2.1 A Brief History of the Plea of Consent (1898–1979)
4.2.1.1 Writings of Scholars
4.2.1.2 State Practice
Savarkar (1911)
Russian Indemnity (1912)
4.2.1.3 Interim Conclusions
4.2.2 Codification in the International Law Commission
4.2.2.1 First Reading of the ARS: The Adoption of Draft Article 29
Ago’s Report and the Debates at the International Law Commission
Views of States in the General Assembly’s Sixth Committee
4.2.2.2 The Adoption of Article 20 on Second Reading
Crawford’s Report and the Debates at the International Law Commission
Views of States in the Sixth Committee and Subsequent Practice
4.3 Consent as a Defence
4.3.1 Three Objections to the Defence of Consent
4.3.1.1 Consent as a Primary Rule
4.3.1.2 The Temporal Logic of Consent
4.3.1.3 Consent and Absolute Obligations
4.3.2 Defending the Defence of Consent
4.4 Consent as a Justification
4.4.1 Consent as the Renunciation of Legal Protection
4.4.2 Renunciation, Absent Interest and Theories of Justification
5 Self-Defence
5.1 Introduction
5.2 Historical Premise: Armed Conflict during Peace
5.3 Tracing the Development of Article 21 in the International Law Commission
5.3.1 First Reading: Self-Defence and the Prohibition of Force
5.3.2 Second Reading: Self-Defence Beyond the Prohibition of Force
5.4 Self-Defence as a ‘Circumstance Precluding Wrongfulness’ in the Articles on State Responsibility
5.4.1 A Justification for Forcible Measures Only
5.4.2 Understanding the Scope of Article 21
5.4.2.1 First Legal Relation: On the Legality of Resort to Force
5.4.2.2 Second Set of Legal Relations: Other Rights of the Aggressor State
5.4.2.3 Third Set of Legal Relations: Obligations of ‘Total Restraint’
5.4.3 Self-Defence and Other Obligations in Practice
5.4.3.1 Territorial Sovereignty and Non-Intervention
Nicaragua v US (1986)
DRC v Uganda (2005)
5.4.3.2 Commercial Obligations
Nicaragua v US (1986)
Oil Platforms (2003)
5.5 Justification for the Collateral Impairment of Other Obligations
5.5.1 Consequentialist Theories
5.5.2 Deontic Theories
5.5.2.1 Preliminary Clarification: The Right of Self-Defence as a Hohfeldian Liberty
5.5.2.2 Unity of the Legal System
5.5.2.3 Exercise of a Peremptory Right
5.5.2.4 Forfeiture of Legal Protection
5.5.2.5 The Acid Test: Compensation for Material Loss
5.5.3 Rights Forfeiture and the Justification of Self-Defence
6 Countermeasures
6.1 Introduction
6.2 Reprisals and the Origins of Countermeasures
6.2.1 1800–1919: Classic Age of Reprisals
6.2.1.1 Positive and Negative Reprisals
Positive Reprisals
Negative Reprisals
6.2.1.2 What Limits on the Right to Reprisals?
6.2.2 1919–1945: Period of Transition
6.2.2.1 Outlawing Forcible Reprisals
6.2.2.2 Regulating Non-Forcible Reprisals
6.2.3 Interim Conclusions
6.2.3.1 Reprisals as the Non-Performance of the Law
6.2.3.2 Function of Reprisals: Enforcement of International Law
6.2.3.3 Reprisals as Lawful Measures
6.3 Countermeasures in Contemporary International Law
6.3.1 The Dual Role of Countermeasures in the Law of Responsibility
6.3.1.1 Incidental Function: A Circumstance Precluding Wrongfulness
6.3.1.2 Primary Function: Implementation of State Responsibility
First Reading: Countermeasures as Sanction
Second Reading: Instrumental Countermeasures
6.3.2 The Regime of Countermeasures in the Articles on State Responsibility
6.3.2.1 Existence of a Wrongful Act
6.3.2.2 Substantive Requirements
6.3.2.3 Procedural Conditions
6.4 Countermeasures as Justifications
6.4.1 Theorising the Legality of Countermeasures
6.4.1.1 States as Organs of the International Community
6.4.1.2 Consequentialist Theories
6.4.1.3 Deontic Theories
Preliminary Clarification: Countermeasures as Hohfeldian Liberties
Unity of the Legal System
Forfeiture Theory
6.4.1.4 The Acid Test: Compensation for Material Loss
6.4.2 Grounding the Justification of Countermeasures on Rights Forfeiture
7 Force Majeure
7.1 Introduction
7.2 Historical Notes on the Development of the Plea of Force Majeure
7.2.1 The Force Majeure of Revolutions in the Nineteenth Century
7.2.2 Force Majeure in Judicial and Arbitral Practice of the Early Twentieth Century
7.2.2.1 French Company of Venezuelan Railroads (1904)
7.2.2.2 Russian Indemnity (1912)
7.2.2.3 The SS Wimbledon (1923)
7.2.2.4 Serbian and Brazilian Loans (1929)
7.2.2.5 Société Commerciale de Belgique (1939)
7.2.3 An Assessment
7.2.3.1 Changing Conceptions of Force Majeure
7.2.3.2 What Rationale for the Plea?
7.3 Force Majeure in Contemporary International Law
7.3.1 The ILC’s Codification of Article 23
7.3.1.1 First Reading: A Fault-Based Rationale for Force Majeure?
7.3.1.2 Second Reading: Excluding Fault
7.3.2 Force Majeure in the Practice of States since 1945
7.3.2.1 States’ Views in the Sixth Committee
7.3.2.2 Arbitral and Judicial Practice
Events of Force Majeure: de Wytenhove (1950) and Ottoman Lighthouses (1956)
Rights of US Nationals in Morocco (1952)
Rainbow Warrior (1990)
LAFICO v Burundi (1991)
Gabcíkovo-Nagymaros (1994)
Aucoven v Venezuela (2003)
7.3.3 A Postscript on the Standard of Material Impossibility
7.4 Force Majeure as an Excuse
7.4.1 Explaining the Rationale
7.4.2 Force Majeure as an Excuse
7.4.3 Theorising the Excuse of Force Majeure: A Free Will Theory
8 State of Necessity
8.1 Introduction
8.2 State of Necessity in International Law: Historical Notes
8.2.1 Seventeenth and Eighteenth Centuries: The Natural Right of Necessity
8.2.1.1 The Early-Modern International Lawyers
8.2.1.2 ‘Necessity’ as Original Community in The Neptune
8.2.2 The Long Nineteenth Century (1800–1914): Twilight of the General ‘Right of Necessity’
8.2.2.1 A Difficult Start: The Seizure of the Danish Fleet (1807)
8.2.2.2 Necessity and the Fundamental Right of Self-Preservation
The Fundamental Rights of States and the Right of Self-Preservation
A Discrete Right: The Right of Necessity as a Corollary of the Right of Self-Preservation
Inspiring Rights: The ‘Necessity of Self-Defence and Self-Preservation’
8.2.2.3 Whither the Right of Necessity in International Law?
8.2.3 1914–1945: Towards State of Necessity in International Law
8.2.3.1 A Doctrinal Development: State of Necessity in the Law of State Responsibility
New Frameworks: The Rule of Necessity and the Law of State Responsibility
New Conceptions: The Rule of Necessity as a Conflict of Interests
New Theories for the Rule of Necessity
8.2.3.2 Fearing Anarchy and Chaos: Rejecting the Rule of Necessity
The ‘Rape’ of Belgium and Luxembourg
A Different Battlefield: The Intellectual Dispute over the Recognition of a Rule of Necessity
8.2.3.3 Lagging Behind: Protection of Essential Interests in the Practice of States
The Defence of Necessity at the 1930 Hague Codification Conference
Essential Interests and Force Majeure in International Disputes
8.2.4 An Assessment: State of Necessity between Substance and Form
8.3 New Beginnings: Rehabilitating State of Necessity at the International Law Commission
8.3.1 Codifying State of Necessity at the International Law Commission
8.3.1.1 First Reading: The Inclusion of State of Necessity in the Draft Articles
Breaking Through: Ago’s State of Necessity
The Commission’s Views and the Adoption of Draft Article 33
8.3.1.2 Second Reading and the Adoption of Article 25
Two Not So ‘Minor’ Changes: Taking Account of Community Interests
A Justification or an Excuse?
8.3.1.3 Article 25 and the Commission’s Commentary
8.3.2 State of Necessity in the Practice of States since 1945
8.3.2.1 Reactions to the Work of the International Law Commission on State of Necessity
8.3.2.2 Invoking State of Necessity in Dispute Settlement
Protecting Environmental Interests: ‘Ecological Necessity’
‘Financial Necessity’: State of Necessity in Investment Arbitration
Miscellaneous Cases: The Generality of the Defence of Necessity
8.3.3 A Customary Defence?
8.4 State of Necessity between Justification and Excuse
8.4.1 Identifying the Rationale: Superiority of the Interest Safeguarded
8.4.2 State of Necessity as a (Counterintuitive) Justification
8.4.3 A Duty of Compensation?
8.4.4 A Proposal for Excusing Necessity
9 Distress
9.1 Introduction
9.2 Historical Antecedents of the Defence of Distress
9.2.1 The Law of the Sea and the Right of Entry in Distress
9.2.2 Blockade Violations in Distress in the Long Nineteenth Century
9.2.3 Distress and Humanitarian Considerations
9.3 The Defence of Distress in Contemporary International Law
9.3.1 First Reading: Formulating the Defence of Distress in the International Law Commission
9.3.1.1 Ago’s ‘Relative Impossibility of Performance’
9.3.1.2 Distress as a Discrete Defence: The Adoption of Draft Article 32 at the International Law Commission
9.3.2 State Reactions and the Rainbow Warrior Affair (1979–1999)
9.3.2.1 State Reactions to Draft Article 32
9.3.2.2 Boosting the Defence: The Rainbow Warrior Arbitration
9.3.3 Progressive Development and the Adoption of Article 24
9.3.4 Customary Status Pending
9.4 Classifying Distress as Justification or Excuse
9.4.1 Distress as an Excuse
9.4.2 Distress as a Justification
9.4.3 Justification or Excuse?
Conclusion
Bibliography
Index