Lecture 12 - Use of Force Flashcards
The Prohibition on the Use of Force:
- Like all other legal systems, International Law seeks to prevents it subjects from using _____ to settle their differences. One of the most troublesome areas as while all States agree in principle on the general impermissibility of the use of force, they differ as to the circumstances in which it can be used.
- Many States are unwilling to relinquish their ability to impose a settlement forcefully in favour of a system where disputes are settled on the basis of legal principle.
- Many view the prohibition on the use of force as misplaced idealism in the absence of an adequate, effective and compulsory mechanism for settling disputes or punishing those who endanger international ___ and _____.
The Prohibition on the Use of Force:
- Like all other legal systems, International Law seeks to prevents it subjects from using violence to settle their differences. One of the most troublesome areas as while all States agree in principle on the general impermissibility of the use of force, they differ as to the circumstances in which it can be used.
- Many States are unwilling to relinquish their ability to impose a settlement forcefully in favour of a system where disputes are settled on the basis of legal principle.
- Many view the prohibition on the use of force as misplaced idealism in the absence of an adequate, effective and compulsory mechanism for settling disputes or punishing those who endanger international peace and security.
The Law Before 1945:
The prohibition on the use of force is not necessarily a creation of the UN Charter.
In the early days of international law (16th-17th Century), the use of force by states was governed by the Just War doctrine (see St. Augustine and Grotius) which held that war was illegal unless untaken for a “just cause”.
What was a “just cause”?
A ____ received; or
A right illegally ____.
In the 17th Century, the rise of the nation state leads to the refinement of the Just War theory. The test becomes a subjective one based on the belief of the State resorting to war rather than an objective test.
By the 18th century, this diminished Just War theory is replaced by the notion that it was within every sovereign’s right to resort to war for any reason. The purpose of international law was to regulate the actual conduct of war rather than to interfere with the State’s right to pursue it.
This can be described as an approach which shifted from one of legal positivism to one of state practice.
No strict prohibition on the use of force under this model. Therefore, no need for a right to _______.
Attempts at prohibiting war before 1945:
Covenant of the League of Nation: war was only lawful if certain procedural safeguards were followed. Did not regulate force which fell short of actual war i.e. where self-defence, rescue of ______ abroad, or reprisals were concerned. Important as it laid the seeds for the right to self-defence as a legal exception.
General Treaty for the Renunciation of War (Pact of Paris) Kellogg-Briand Pact, 1928 (which is still in force today): represents the first attempt to totally outlaw war and shows that it was both legally and politically possible. Did not extend to other uses of force. Did not expressly provide for a right to self-defence but the draft material indicates this was because it was already accepted as custom.
The Law Before 1945:
The prohibition on the use of force is not necessarily a creation of the UN Charter.
In the early days of international law (16th-17th Century), the use of force by states was governed by the Just War doctrine (see St. Augustine and Grotius) which held that war was illegal unless untaken for a “just cause”.
What was a “just cause”?
A wrong received; or
A right illegally denied.
In the 17th Century, the rise of the nation state leads to the refinement of the Just War theory. The test becomes a subjective one based on the belief of the State resorting to war rather than an objective test.
By the 18th century, this diminished Just War theory is replaced by the notion that it was within every sovereign’s right to resort to war for any reason. The purpose of international law was to regulate the actual conduct of war rather than to interfere with the State’s right to pursue it.
This can be described as an approach which shifted from one of legal positivism to one of state practice.
No strict prohibition on the use of force under this model. Therefore, no need for a right to self-defence.
Attempts at prohibiting war before 1945:
Covenant of the League of Nation: war was only lawful if certain procedural safeguards were followed. Did not regulate force which fell short of actual war i.e. where self-defence, rescue of nationals abroad, or reprisals were concerned. Important as it laid the seeds for the right to self-defence as a legal exception.
General Treaty for the Renunciation of War (Pact of Paris) Kellogg-Briand Pact, 1928 (which is still in force today): represents the first attempt to totally outlaw war and shows that it was both legally and politically possible. Did not extend to other uses of force. Did not expressly provide for a right to self-defence but the draft material indicates this was because it was already accepted as custom.
Article 2(4) of the UN Charter: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’
A general prohibition, subject only to the exceptions stated in the Charter:
- self-defence
- action by the_______ Council (Chapter VII)
Article 2(4) of the UN Charter: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’
A general prohibition, subject only to the exceptions stated in the Charter:
- self-defence
- action by theSecurity Council (Chapter VII)
Two views on interpretation Article 2(4):
The permissive view (only the US and Israel use this)
According to this view, Article 2 does not lay down a total ban on the use of force and States are permitted to use force in certain situations:
1. Pre-emptive self-defence
2. Force to rescue nationals abroad
3. ___________ intervention
4. Regime change (intervention for ________)
The restrictive view:
According to this view, the article lays down a total ban on the use of force save only where explicit exceptions are made
1. Self-Defence (Article 51)
2. Enforcement action (Chapter VII)
Two views on interpretation Article 2(4):
The permissive view (only the US and Israel use this)
According to this view, Article 2 does not lay down a total ban on the use of force and States are permitted to use force in certain situations:
1. Pre-emptive self-defence
2. Force to rescue nationals abroad
3. Humanitarian intervention
4. Regime change (intervention for democracy)
The restrictive view:
According to this view, the article lays down a total ban on the use of force save only where explicit exceptions are made
1. Self-Defence (Article 51)
2. Enforcement action (Chapter VII)
Basic Rule: Threat or Use of Force is Prohibited.
Meaning of Force: Force means ‘armed force’, not economic or political pressure
Nicaragua Case – Indirect use of force also prohibited (i.e. funding the Contra rebels)
Threat of Force: Threat of force also prohibited. ‘Threat of force’ means an ultimatum announcing recourse to military measures if certain ______ are not accepted.
Basic Rule: Threat or Use of Force is Prohibited.
Meaning of Force: Force means ‘armed force’, not economic or political pressure
Nicaragua Case – Indirect use of force also prohibited (i.e. funding the Contra rebels)
Threat of Force: Threat of force also prohibited. ‘Threat of force’ means an ultimatum announcing recourse to military measures if certain demands are not accepted.
The Nicaragua case:
If you only read one case this year, let it be this one. It has the most bang for your buck given the range of issues discussed.
The case concerned a claim by Nicaragua that the US had violated international law through its support for the paramilitary activities of the ______ rebels within its territory.
It was also alleged that the US had, through the CIA, ________ three Nicaraguan harbors. Nicaragua argued inter alia that the US had violated its sovereignty in breach of the principle of non-intervention and was also in breach of its obligations to not use force against another State.
The claims were grounded in both international conventions (the UN Charter and OAS (Organisation of American States) Charter) and custom.
The first legal question that arose was whether the Court had jurisdiction to hear the case at all in circumstances where the US argued that they had entered a reservation to the jurisdiction of the ICJ in respect of multilateral treaties (including the UN Charter).
The ICJ ultimately held that it did not have power to hear the claims insofar as they were based on multilateral treaty obligations, including the Article 2(4) prohibition on the use of force.
However, it concluded that the rules of customary international law contained similar principles which were not superseded by the UN Charter or any other treaty and could decide the case on that basis.
The Court found that the prohibition on the use of force against other States as expressed in Article 2(4) was representative of customary international law. The US had breached this prohibition through its funding of the Contra rebels and the laying of mines in Nicaraguan habours.
It found that state practice need not be universal or uniform in its application.
However, “[i]f a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appeal to exceptions or justifications incompatible within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule”.
The US claimed it had been engaged in an act of collective self-defence on behalf of El Salvador.
The Court found there had been no request for such assistance. Went on the hold that there was no general right of ________ in support of an opposition within another State.
The Nicaragua case:
If you only read one case this year, let it be this one. It has the most bang for your buck given the range of issues discussed.
The case concerned a claim by Nicaragua that the US had violated international law through its support for the paramilitary activities of the Contra rebels within its territory.
It was also alleged that the US had, through the CIA, mined three Nicaraguan harbors. Nicaragua argued inter alia that the US had violated its sovereignty in breach of the principle of non-intervention and was also in breach of its obligations to not use force against another State.
The claims were grounded in both international conventions (the UN Charter and OAS Charter) and custom.
The first legal question that arose was whether the Court had jurisdiction to hear the case at all in circumstances where the US argued that they had entered a reservation to the jurisdiction of the ICJ in respect of multilateral treaties (including the UN Charter).
The ICJ ultimately held that it did not have power to hear the claims insofar as they were based on multilateral treaty obligations, including the Article 2(4) prohibition on the use of force.
However, it concluded that the rules of customary international law contained similar principles which were not superseded by the UN Charter or any other treaty and could decide the case on that basis.
The Court found that the prohibition on the use of force against other States as expressed in Article 2(4) was representative of customary international law. The US had breached this prohibition through its funding of the Contra rebels and the laying of mines in Nicaraguan habours.
It found that state practice need not be universal or uniform in its application.
However, “[i]f a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appeal to exceptions or justifications incompatible within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule”.
The US claimed it had been engaged in an act of collective self-defence on behalf of El Salvador.
The Court found there had been no request for such assistance. Went on the hold that there was no general right of intervention in support of an opposition within another State.
The Legalist Paradigm (Walzer)
There exists an international society of independent states.
This international society has a law that establishes the rights of its members – above all the rights of territorial integrity and political sovereignty.
Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act.
Aggression justifies two kinds of violent response: a war of self-defence by the victim or a war of law enforcement by the victim and any other member of international society.
Nothing but _______ can justify war.
Once the aggressor state has been militarily repulsed, it can also be punished.
The Legalist Paradigm (Walzer)
There exists an international society of independent states.
This international society has a law that establishes the rights of its members – above all the rights of territorial integrity and political sovereignty.
Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act.
Aggression justifies two kinds of violent response: a war of self-defence by the victim or a war of law enforcement by the victim and any other member of international society.
Nothing but aggression can justify war.
Once the aggressor state has been militarily repulsed, it can also be punished.
The UN definition of Just Cause:
- A war is unjust if and only if it is not just.
- A war is just if it is a war of self-defence (against _______)
The UN definition of Just Cause:
- A war is unjust if and only if it is not just.
- A war is just if it is a war of self-defence (against aggression)
The Duty of Non-Intervention:
A sovereign state has a claim against other states against intervention, thus by implication, there is a duty of non-intervention.
”When state A recognizes state B’s sovereingty, it accepts a duty of non-intervention into B’s internal affairs” (Luban p.165)
Any breach of the duty of non-intervention constitutes an act of aggression and is ______.
The Duty of Non-Intervention.
A sovereign state has a claim against other states against intervention, thus by implication, there is a duty of non-intervention.
”When state A recognizes state B’s sovereingty, it accepts a duty of non-intervention into B’s internal affairs” (Luban p.165)
Any breach of the duty of non-intervention constitutes an act of aggression and is illegal.
”Aggression is the use of armed force by a State against the sovereignty, territorial integrity and political independence of another State, or in any other manner inconsistent with the ______ of the United Nations.”
- (UN definition of aggression 1974)
”Aggression is the use of armed force by a State against the sovereignty, territorial integrity and political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”
- (UN definition of aggression 1974)
3 Exceptions to the Ban on Aggression:
- Massacre and enslavement (Acts that ”shock the moral conscience of mankind”), e.g. Genocide, crimes against humanity or atrocities. The commission of such international crime justifies humanitarian intervention.
- _______: two or more political communities contending within the same territory (i.e, two-nation states)
- If another foreign country has already intervened
3 Exceptions to the Ban on Aggression:
- Massacre and enslavement (Acts that ”shock the moral conscience of mankind”), e.g. Genocide, crimes against humanity or atrocities. The commission of such international crime justifies humanitarian intervention.
- Secession: two or more political communities contending within the same territory (i.e, two-nation states)
- If another foreign country has already intervened
Walzer/ Mill on Self-Determination:
- States should be treated as self-determining political communities.
- The members of a political community must seek their own freedom (just as the individual must shape his own virtue).
- Self-determination is the right of a people to become ”free by its own efforts”, and the principle non-________ shall guarantee that their success is not impeded or their failure not prevented by foreign intrusion.
Walzer/ Mill on Self-Determination:
- States should be treated as self-determining political communities.
- The members of a political community must seek their own freedom (just as the individual must shape his own virtue).
- Self-determination is the right of a people to become ”free by its own efforts”, and the principle non-intervention shall guarantee that their success is not impeded or their failure not prevented by foreign intrusion.
Luban on the Modern Moral Reality of War:
The identification of states with nations only works in the historical context of the nation-state.
When nations and states do not (necessarily) coincide, a theory of jus ad bellum which defines aggression in terms of sovereignty of states, removes itself from the moral reality of war.
Most wars today are wars of liberation, revolution, and civil wars.
The UN definiton of just cause is ______.
Luban on the Modern Moral Reality of War:
The identification of states with nations only works in the historical context of the nation-state.
When nations and states do not (necessarily) coincide, a theory of jus ad bellum which defines aggression in terms of sovereignty of states, removes itself from the moral reality of war.
Most wars today are wars of liberation, revolution, and civil wars.
The UN definiton of just cause is outdated.
The Responsibility to Protect:
A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.
B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to ______.
The Responsibility to Protect:
A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.
B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.
The responsibility to protect embraces three specific responsibilities:
1. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.
- The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
- The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
Priorities:
A. Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.
B. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.
The responsibility to protect embraces three specific responsibilities:
1. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.
- The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
- The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
Priorities:
A. _________ is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.
B. The exercise of the responsibility to both _____ and ______ should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.
The responsibility to protect embraces three specific responsibilities:
1. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.
- The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
- The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
Priorities:
A. Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.
B. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.
