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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 Honnour of Bruno Simma, Oxford University Press, Oxford, Vol. From Bilateralism to Community Interest. Essays in Honnour of Bruno Simma, From Bilateralism to Community Interest. Essays in Honnour of Bruno Simma, page (843-861)
Publication Publié, 2011

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Résumé :

Even if armed counter-measures are still strictly prohibited, existing international law offers a wide range of possibilities of responses for a State victim of a previous use of force. A first option is to lower the higher threshold of the grey zone, by qualifying as an armed attack some limited uses of force. As mentioned by the ICJ in the Oil Platforms case, the mining of a single military vessel can be sufficient to reach the gravity criteria necessary to establish the existence of an ‘armed attack’ according to article 51 of the Charter. A second (and possibly complementary) option is to raise the lower threshold of the grey zone, by considering that some uses of force are not grave enough to trigger the applicability of article 2(4). International law does not prohibit, as such, police or enforcement measures exercised by a State within its own territory and even, under strict conditions, beyond its borders. However, these possibilities are not unlimited. States remain reluctant to expand the power to use force in international relations, even under the pretext of retaliation. They therefore condemn armed countermeasures as contrary to the peremptory rule enshrined in article 2(4) of the Charter, and maintain that only an armed attack, and not any use of force, triggers self-defence according to article 51.