Lesson 1 Flashcards
Jus ad bellum (19 cards)
Jus ad bellum
Legal framework that allows a state to go into war
2(4) - 51
Jus in bello
The laws governing conduct during war, regardless of who started it.
Article 2(4)
States must refrain from threatining or use force against another state.
Force is not just miltiary force.
How do cyber attacks challenge Jus ad Bellum?
Cyber warfare blurs traditional war definitions—damage to finance, health, or nuclear facilities could be acts of war.
Coercion
The practice of persuading someone to do something by using force or threats.
Jusprudence
International law and national.
Political construction.
Judicial person
Companies
Ex: Big tech companies in Russia Ukraine war.
What is the issue with big tech companies in the Russia-Ukraine war
Big tech companies influence war through censorship, cyber support, economic pressure, and infrastructure, raising questions about neutrality, legality, and private actors in war.
ICJ’s first case
- British warships were damaged by naval mines in the Corfu Channel (October 22, 1946).
- UK accused Albania of responsibility, Albania denied it.
ICJ ruling (1949):
1. Albania was responsible for the mines and had to pay compensation.
- UK violated Albanian sovereignty by clearing mines without permission.
Impact: Influenced maritime law, state responsibility, and ICJ’s role in dispute resolution. VCLT art 32, judcial decisions if ambigious.
Chetman
How does the Nicaragua Case (1986) relate to the Vienna Convention on the Law of Treaties (VCLT)?
- Prohibition on Use of Force (UN Charter Art. 2(4)):
- Declared a cardinal principle of international law, likely jus cogens.
- Interpreted to include indirect force (arming/training rebels), but excluded mere funding.
- Applies only to state actions in international relations, not internal or non-state actor violence.
- Adopted a narrow view of threats, limiting it to threats of unlawful force.
- Justiciability:
- Rejected US claim that use-of-force disputes are for the Security Council alone.
- Declared such disputes inherently justiciable.
- Self-Defence (Art. 51 & Customary Law):
- Set a high threshold for “armed attack” as trigger for self-defence—more serious than other uses of force.
- Required state attribution for attacks by non-state actors; substantial involvement alone was insufficient.
- Avoided taking a position on anticipatory self-defence.
Confirmed necessity & proportionality as customary requirements but applied them inconsistently.
For collective self-defence, added two requirements:
Victim state must declare itself attacked.
Must request assistance (beyond what Art. 51 explicitly requires).
- Other Exceptions:
Rejected humanitarian intervention without Security Council approval.
Permitted intervention by invitation, but only from the recognized government, not opposition forces.
Chetman
International Law Commission
Developes law and codifies it.
Chetman
Are necessity and proportionality requirements explicitly mentioned in Article 51 of the UN Charter?
❌No, they are not explicitly mentioned.
✅ However, in the Nicaragua Case (1986), the ICJ recognized that:
Self-defense requires actions that are proportional to the armed attack and necessary to respond to it.
This rule is well-established in customary international law
Chetman
Is reporting to the UN Security Council (UNSC) a legal requirement for self-defense under Article 51?
✅ Failure to report self-defense actions does NOT make them automatically unlawful.
✅ However, it can weaken a state’s argument that it genuinely believed it was acting in self-defense.
✅ ICJ cases (Nicaragua, Armed Activities) show that the Court considers non-reporting as a factor in evaluating self-defense claims.
Chetman
Exceptions to the Prohibition on the Use of Force
✅ State Consent:
- A recognized government can lawfully invite foreign military assistance.
- Opposition groups cannot invite foreign forces (Nicaragua Case, ¶246).
- Consent does not require formalities and can be explicit or implicit (Armed Activities Case, ¶51).
- A state can limit consent by time, location, or objectives, and withdraw it at any time for any reason (¶52).
✅ Other Possible Exceptions:
- UN Security Council Authorization (Chapter VII of the UN Charter).
- Humanitarian and Pro-Democratic Interventions (legally debated).
- Protection of Nationals Abroad (controversial in international law).
Chetman
Why has the ICJ’s influence on the legal regulation of the use of force declined?
The ICJ shaped early legal debates on the prohibition of force (especially through Nicaragua).
🔹 But it has failed to address modern issues like anticipatory self-defense, terrorism, and cross-border interventions.
🔹 The UN Security Council, human rights bodies, and evolving global security concerns have challenged and weakened the Court’s authority in this area.
🚨 As a result, the ICJ’s influence on the legal regulation of the use of force is fading, and other institutions are taking a more active role in shaping the rules.
What are the key points of the UN General Assembly resolution (A/RES/ES-11/1) on Russia’s aggression against Ukraine?
- Condemntion of Russia’s intervention
- Requires withdrawal of the Ukrainian territory
- Reaffirms Ukraine’s territory.
SOFA
Status of force agreement
How can a state’s silence impact international law and the use of force?
✅ Qualified Silence
Only applies to states or the UN Security Council, not individuals or non-state actors.
✅ Strategic Use of Silence
States may remain silent for political or strategic reasons rather than legal acceptance.
✅ Jus ad bellum + Silence
If a state uses force and other states remain silent, this could be interpreted as tacit acceptance or acquiescence to its legality.
✅ Customary International Law
Silence can contribute to forming customary international law, if it aligns with widespread state practice and opinio juris.
✅ State’s Awareness
Silence should be a deliberate choice, not due to a lack of awareness of ongoing international legal developments.
