5 : The use of force in IL

Question 1

Conditions of the Just War theory ? (5)

Answer 1

1/ just cause
2/ war declared by lawful authority 
3/ right intention
4/ option of last resort 
5/ reasonable chance of success

Question 2

Different conditions laid out in Art. 2(4) of the UN Charter on the prohibition of the use of force ? (3)

Answer 2

1/ use of force in the IR of States

2/ threat or use of force

3/ against the territorial integrity and political independence of any State, or in any other manner inconsistent with the purposes of the UN

Question 3

Legal status of the prohibition of the use of force ? (3)

Answer 3

1/ conventional rule
2/ CIL rule
3/ jus cogens norm ? see Nicaragua

Question 4

3 generations of peace operations

Answer 4

1/ traditional peacekeeping operations : prevent recurrence of violence, notions of impartiality and consent of the State

2/ multidimensional peacekeeping operations : addition of peacekeeping tasks and elections

3/ multidimensional peace operations : transitional administration, peace enforcement, Chapter VII authorization

Question 5

Conditions for exercise of right of self-defense ? (6)

Answer 5

Article 51 UN Charter :
1/ armed attack
2/ against a State
3/ State has declared itself to be a victim
4/ immediate notification of the UNSC of measures

CIL :
5/ necessity
6/ proportionality

Question 6

3 debates around the right of self-defense ?

Answer 6

1/ application when attack by non-State actors ?

2/ anticipatory and pre-emptive self-defense ?

3/ questions around necessity and proportionality

Question 7

What is humanitarian intervention ?

Answer 7

1/ unilateral use of force

2/ to stop humanitarian catastrophes and atrocities from happening

Question 8

2 eventual justifications for humanitarian intervention ?

Answer 8

1/ textual interpretation of UN Charter, Arts. 1(3) and 2(4) ?

2/ customary law ? This would not work, as no coherent State practice and divergent opinio juris

Question 9

4 characteristics of humanitarian intervention

Answer 9

1/ humanitarian catastrophes
2/ military intervention
3/ unilateral (no SC authorization)
4/ not generally accepted

Question 10

4 characteristics of R2P

Answer 10

1/ genocide, war crimes, ethnic cleansing, crimes against humanity
2/ prevention, military intervention
3/ collective (SC decides)
4/ accepted

Question 11

Different articles of Chapter VII of UN Charter and what they provide for ?

Answer 11

1/ Article 39 : UNSC determination of threat to the peace/breach of the peace/act of aggression + power to make recommendations/take decisions on what should be done to maintain int peace & security

2/ Article 40 : provisional measures

3/ Article 41 : measures short of the use of force

4/ Article 42 : use of force, but only when measures under Article 41 are not adequate

5/ Articles 43-49 : standing army

Question 12

What was put in place instead of a UN standing army (Arts. 43-49 UN Charter) ? (2)

Answer 12

1/ specific authorisations to use force by State/coalition of States

2/ peace operations

Question 13

Particular phrase of UNSC that amounts to an authorisation to use force ?

Answer 13

“authorises members to use all necessary means … to restore int peace & security”

Question 14

What demonstrates UN is a centralized system of collective security ? (3)

Answer 14

1/ UNSC has primary responsibility (Art. 24)

2/ members agree UNSC acts on their behalf (Art. 24)

3/ members agree to accept & carry out decisions of UNSC (Art. 25)

Question 15

What is necessity as criterion for legality of self-defense ?

Answer 15

Resort to self-defense legal only if no other means available

Question 16

What is proportionality as criterion for legality of self-defense ?

Answer 16

Self-defense limited to action that is necessary to recover territory or repel an attack on State’s forces

Question 17

What is the Webster formula ?

Answer 17

Doctrine developed following the 1837 Caroline incident according to which self-defense is legal only in cases in which the “necessity of the self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation”

Question 18

What is a traditional debate surrounding the right of self-defense ?

Answer 18

Debate about whether there exists in CIL a wider right to self-defense than the one codified in Art. 51

1/ Yes : ‘inherent right’ => States should be able to respond to an imminent attack

2/ No : exception needs to be interpreted narrowly, bc otherwise Art. 51 would be deprived of purpose