Imagining Law: Essays in Conversation with Judith Gardam
Description
Book Chapter
Mary Ellen O'Connell, The Limited Necessity of Resort to Force, in Imagining Law: Essays in Conversation with Judith Gardam 37 (Dale Stephens and Paul Babie eds., 2016).
"In this contribution to the volume in her honour, I propose to revisit her discussion of necessity in the jus ad bellum in large part to respond to recent interest in characterising necessity as a lawful basis for the resort to armed force." (37)
"The discussion begins with an overview of the general law on resort to force, then turns to a full focus on necessity. The principle of necessity is found in a number of international l aw categories with a distinctive meaning in each. Keeping the various meanings and histories separate is a challenge to scholars. In the area of resort to force, the principle of necessity is a restriction on force; it does not and cannot permit military force. In other categories of international law, necessity may provide a defence to otherwise unlawful action, such as imposition of a trade barrier, but not to the otherwise unlawful resort to military force. The conclusion here is that proposals to expand the right to use force by claiming necessity appear to be based on either a faulty understanding of necessity or faulty reasoning about the legal regime on the use of force. Gardam's analysis of over a decade ago remains solid and astute." (38)