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Judge Simma's Separate Opinion in the Oil Platforms Case: To What Extent are Armed 'Proportionate Defensive Measures' Admissible in Contemporary International Law?

par Corten, Olivier
Référence From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, Oxford University Press
Publication Publié, 2011-05

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Résumé :

This chapter challenges the argument that Bruno Simma developed his Separate Opinion in the Oil Platforms case, the first he signed as a judge, in November 2003. First, it exposes Simma's reasoning, and emphasizes its ambiguities concerning jus contra bellum. This ambiguity is further commented on in the following sections of the chapter. The chapter also shows that the illegality, de lege lata, of armed counter-measures, has not been challenged in recent years. Nevertheless, it is true that some types of proportionate defensive measures are not prohibited by the Charter, either in self-defence or in the exercise of sovereign police powers. Accordingly, it seems that the bulk of Simma's concerns could be addressed in the framework of existing international law.