Week 6 - Jus ad Bellum

Question 1

Where is the prohibition on the use of force? (3)

Answer 1

1) Art 2(4) UNC
2) CIL (Military and Paramilitary Activities)
3) jus cogens? (Dorr)

Question 2

What amounts to use of force? (4)

Answer 2

1) Military and Paramilitary Activities
2) Laying mines in another State’s territorial waters
3) lethal assistance to armed groups
4) direct attacks on infrastructure

Question 3

What amounts to a ‘threat’ of force? (3)

Answer 3

1) signalling intent to use (unlawful) force if certain event occur
2) Mere possession of nuclear weapons is not a threat
3) Threat or Use of Nuclear Weapons)

Question 4

What is the status of economic warfare and cyber operations? (2)

Answer 4

1) economic coercion falls short of use of force but may be unlawful intervention (Friendly Relations Declaration)
2) Cyber operations on scale and effect of use of force can lead to NATO right collective self-defence (NATO)

Question 5

Does Art 2(4) UNC apply to internal domestic uses of force? (2)

Answer 5

1) No

2) Art 2(4) refers to “international relations”

Question 6

What is the status of uses of force not threatening territorial integrity and political independence? (3)

Answer 6

1) Minesweep operations still violate territorial integrity (Corfu Channel)
2) This does not make lawful even states trying to re-acquire territory to which they have valid title (Eritrea-Ethiopia Claims Commission)
3) Potentially permits R2P, humanitarian intervention or use of force by invitation? (takes outside Art 2(4) Scope rather than preclude wrongfulness)

Question 7

What is the principle of non-intervention? (2)

Answer 7

1) Military and Paramilitary Activities
2) forbids coercion of any form which inhibits the ability of another State to exercise its sovereignty freely in relation to political, economic, social and cultural matters.

Question 8

What are the requirements for collective or individual SDef? (4)

Answer 8

1) Armed Attack (Art 51 UNC)
2) (Victim State declaring itself victim and requesting assistance) (Nicaragua)
3) Reporting requirement to UNSC (Art 51 UNC)
4) Proportionality and necessity (Nicaragua)

Question 9

What are the requirements for an ‘armed attack’? (3)

Answer 9

1) Anticipatory (non-imminent armed attack) SDef?? (Nicaragua)
2) Author of attack must be either State or armed group with effective State control (Nicaragua)
3) Cross border element (Wall)

Question 10

What does the UNSC reporting requirement for SDef entail? (2)

Answer 10

1) under CIL: not strict requirement to report but evidence of lacking good faith (Nicaragua)
2) Under Art 51 UNC: reporting is mandatory to ensure legality

Question 11

What is the legal source of the right to SDef? (2)

Answer 11

1) Art 51 UNC

2) CIL (Nicaragua)

Question 12

What does the necessity requirement for SDef entail? (2)

Answer 12

1) No other means of halting the armed attack than armed force (ILC Ago’s Eigth Report)
2) failure to complain to ‘attacking’ state prior to SDef can indicate lacking necessity (Oil Platform)

Question 13

What does the proportionality requirement for SDef entail? (2)

Answer 13

1) the SDef must be proportional to what’s necessary in halting or repelling the armed attack and recover territtory (ILC Ago’s Eigth Report)
2) in evaluating this one must consider the scale of the whole operation (including a series of attacks) (Oil platform)
3) taking of airports and towns many 100’s of km from border is disproportionate to transborder attacks (Armed Activities)

Question 14

What degree of support to armed groups suffices for breach of non-intervention principle? (2)

Answer 14

1) financial or other non-lethal support to the group

2) Military and Paramilitary Activities

Question 15

What suffices for unlawful use of force under UNC? (5)

Answer 15

1) Giving weapons, training and potentially logistical support to armed groups (Nicaragua)
2) Generally lethal support to armed groups
3) selecting targets of the armed group (Nicaragua)
4) geographically limitedd clashes between patrols along remote, unmarked and disputed border (Eritrea-Ethiopia Claims Commissoin)
5) Missile Strikes against private vessels (Oil Platforms)

Question 16

What degree of support to armed groups suffices for an armed attack? (1)

Answer 16

Effective control by the State of the military and paramilitary operations in question (Nicaragua)

Question 17

What factors of control by a State over an armed group falls short of ‘effective control’? (5)

Answer 17

1) Lethal support to the group (weapons/trianing)
2) selecting the group’s military targets
3) planning the whole group’s operation
4) general control by the State with high degree of dependency
5) Military and Paramilitary Activities

Question 18

Is SDef permitted against non-state actors? (3)

Answer 18

1) Art 51 UNC: does not specify author of original attack
2) ICJ in Nicaragua confined to instances where State attack or has effective control over armed group
3) despite no right of SDef against non-state actors, wrongfulness precluded (Hernández)

Question 19

What is the unable and unwilling doctrine? (2)

Answer 19

1) SDef being permitted against a State unable or unwilling to prevent its territory from being used to carry out attacks on another State
2) Deeks argues for the doctrine (originally existing in ICL) to apply in SDef

Question 20

What is the evaluative considerations of the unable and unwilling doctrine? (3)

Answer 20

1) permits states for themselves to define which States are unable/unwilling
2) unable states could potentially more correctly be dealt with through assistance to govt
3) stronger ratoinale for permitting the doctrine for unwilling states, under proportionality/necessity constraint

Question 21

What is the special requirements for Collective SDef? (3)

Answer 21

1) victim state must declare itself to have been victim of armed attack
2) the victim state must request collective SDef from third State
3) Sources: CIL and Art 51 UNC (Nicaragua)

Question 22

What suggests SDef is permitted against imminent threats? (3)

Answer 22

1) Caroline Correspondence
2) 2 Reports by UN Secretary General
3) general consensus amongst academics and practitioners

Question 23

What suggests SDef might be permitted without requirement for imminence of attack? (1)

Answer 23

the Bush Doctrine (approach to terrorism)

Question 24

Is military intervention permitted to protect nationals abroad? (3)

Answer 24

1) Has been invoked by UK, US, FRA and RUS
2) has not been condemned by UNSC
3) HOWEVER all invoking members have been in P5

Question 25

What is the doctrine of humanitarian intervention?

Answer 25

Right to use force to protect people in another State to avert humanitarian catastrophe when host state is unwilling or unable to act

Question 26

What are justifications for the doctrine of humanitarian intervention? (2)

Answer 26

1) Art 1(3) UNC focus on promoting respect for HR

2) Art 2(4) UNC only prohibit breaches of territorial integrity and political independence

Question 27

What are problems with the doctrine of humanitarian intervention? (3)

Answer 27

1) seems contrary to Art 2(4) to permit unilateral interventions
2) susceptible to abuse
3) Most interventions have been justified as SDef instead, and those called humanitarian intervention have been objected to by G77

Question 28

What is the Responsibility to Protect? (2)

Answer 28

1) origin in World Summit Outcome Document 2005

2) REQUIRES states to intervene where State manifestly failed in its duty to protect own citizens

Question 29

What are the requirements for R2P to apply? (3)

Answer 29

1) UNSC Chapter VII authorization
2) manifest failure of state to protect population
3) war crimes/ethnic cleansing/crimes against humanity/genocide

Question 30

What is a problem of R2P? (1)

Answer 30

Whilst increasingly invoked by UNSC, it may still be blocked by P5 veto (fails to overcome issues remedied by humanitarian intervention)

Question 31

What is the function and authority of UNSC? (2)

Answer 31

1) primary responsibility for maintenance of peace and security (Art 24 UNC)
2) All UN MS must carry out UNSC ‘decisions’ (not recommendations’) (Art 25 UNC)

Question 32

What are the competences of the UNSC? (3)

Answer 32

1) discretion to determine whether situations are ‘threats to peace’, breaches of the peace’, or ‘acts of aggression’ (Art 39 UNC)
2) In response to determinations the UNSC may impose provisional measures (Art 40 UNC); non-forcible measures (Art 41 UNC); or forcible measures (Art 42 UNC)
3) ‘authorizing all necessary means’ = authorizing use of force

Question 33

Are states obligated to use force on UNSC authorization?

Answer 33

NO it is merely an authorization/permission

Question 34

What are uses of force which fall short of direct armed attacks? (6)

Answer 34

1) Friendly Relations Declaration
2) threat/use of force to violate boundaries
3) acts of reprisal
4) forcible deprivation of right to SDet, freedom and independence
5) organizing and participating in civil strife in another State
6) acquiescing in organized activities within territory directed towards comission of such acts

Question 35

Is there a right for States to intervene in support of internal opposition in another State? (4)

Answer 35

1) State practice suggests not (Nicaragua)
2) however subsequent Western support for opposition groups in LIB and SYR after govts use force against own population
3) Cf. only support of western states, there were objections, and similarly west objected when same invoked by RUS in Crimea
4) so potentially emergent rule permitting non-lethal aid