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L'institution de la légitime défense en droit international: du droit naturel à l'ordre public international

Abstract : Self-defence of States is an autonomous institution under public international law which is consecrated in the article 51 of the Charter of the United Nations as an “inherent right” in every inter-State system. Thus self-defence is at the junction of “droit relationnel” and “droit institutionnel”, of natural law and public international order. Self-defence of States under article 51 should be distinguished from the right of self-defence of individuals and groups or international organisations under jus ad bellum. Armed aggression, as a preliminary element to identify this institution may be committed by States as well as by international organisations and, under certain conditions, by private persons. The threats against peace and security’s “private” origin, such as transnational terrorism, is also the cause of the current redefinition of the principles of necessity and proportionality as inherent elements of the mentioned institution. This “privatisation” phenomenon also touches upon the question of the establishment of an international public order founded, not only on the prohibition on recourse to force, but also on the protection of human rights. This development can be seen in the erasure of frontiers between state of peace and state of war. This erasure is encouraged by the questioning about the distinction between jus ad bellum and jus in bello. Thus the realisation of the self-defence institution as a subjective right of the State faces the international community’s interests, if not the subjective rights of individuals of a similar legal value, i.e. peremptory norms.
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Spyridon Aktypis. L'institution de la légitime défense en droit international: du droit naturel à l'ordre public international. Droit. Paris II - Panthéon Assas, 2007. Français. ⟨tel-02270395⟩



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