Part III The Prohibition of the Use of Force, Self-Defence, and Other Concepts, Ch.26 The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports

Subject(s):

UN Charter — UNCLOS (UN Convention on the Law of the Sea) — Appointment of arbitrator — Challenge to appointment of arbitrator — Fact-finding and inquiry — Arbitral tribunals — Recognition and enforcement — Customary international law — NGOs (Non-Governmental Organizations) — Armed forces — Armed attack — Self-defence — Necessity — Military necessity

This chapter examines the approach used by arbitral tribunals and commissions of inquiry or fact-finding missions with respect to rules governing the use of force after the adoption of the UN Charter in 1945, with emphasis on the right to self-defence and the conditions relating to its exercise. It assesses the legal significance of arbitral awards and fact-finding reports and considers how they have interpreted and applied jus contra bellum—the prohibition of the use of force in international relations and its exceptions. The chapter focuses on two significant arbitration precedents: the Eritrea Ethiopia Claims Commission and an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS). Finally, it discusses questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter, and whether such rules are applicable to non-state actors.