Download Netherlands Yearbook of International Law Volume 41, 2010: by Tarcisio Gazzini, Wouter G. Werner, Ige F. Dekker (auth.), PDF

By Tarcisio Gazzini, Wouter G. Werner, Ige F. Dekker (auth.), I.F. Dekker, E. Hey (eds.)

The Netherlands Yearbook of overseas (NYIL) legislation has major goals. It bargains a discussion board for the ebook of scholarly articles of a extra common nature within the sector of public overseas legislations, together with the legislations of the ecu Union. additionally, every one Yearbook presents an summary of the kingdom perform of the Netherlands, together with Dutch judicial judgements regarding questions of public foreign law.

In this quantity of NYIL ‘necessity’ is the point of interest of study. Necessity performs an important function in any criminal process, as unpredictable or awesome events can require the adoption of measures departing from the generally acceptable legislation with the intention to safeguard simple values and basic pursuits. foreign legislation isn't an exception. The scholarly articles during this quantity speak about the position of the main of necessity in numerous fields of overseas legislations, specifically in clash and defense legislations, humanitarian legislations, human rights legislation, environmental legislations, foreign exchange legislation, and international funding legislation. each one contribution displays on crucial questions of the subject of necessity, reminiscent of the character of the need plea, the position of the Articles on kingdom accountability and common well-known legislation, and using cross-references in case legislations to foreign judgements in different, yet when it comes to necessity comparable, fields of overseas legislation.

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Example text

14 16 N. Tsagourias as treaty law in the pre-Charter period permitted all of the above uses of force. As far as the post-1945 law on the use of force is concerned, it is defined by customary law and by the UN Charter. 22 The two bodies of law—customary and UN law—remain distinct, although they interact with, and influence, each other. 23 The preceding discussion provides the backdrop against which the rules on the use of force will be considered in the remainder of this paper. More specifically, it will be shown that necessity and its associated uses of force appear in three guises.

In the use of force regime these are, amongst others, the norm on the non-use of force, or that on self-defence. Rules on the other hand are specific prescriptions or proscriptions that derive from norms and in the use of force regime they comprise all the customary and Charter rules on the use of force as mentioned above. As far as the functioning of the use of force regime is concerned in the sense of decisionmaking and enforcement, it relies on political institutions such as the Security Council as well as on legal ones such as the International Court of Justice and contains decentralised and unilateral methods such as in the form of self-defence or reprisals but also centralised and institutional ones, as in the case of Chapter VII action.

The dispensability of ‘breach’ as condition of the use of force regime is even more pronounced in the Charter sub-regime. What triggers institutional uses of force is a threat to the peace, a breach of the peace, or an act of aggression according to Article 39 of the UN Charter. Whereas the latter two situations may also constitute a violation of international law—namely a violation of Article 2(4) of the UN Charter103—this is not the case with regard to ‘threats to the peace’, because there is no prohibition in international law of threats to the peace per se.

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