Week 8 Flashcards
Prohibition of the use of force (art. 2(4) UN Charter):
The international regulation of the use of force is crucial for maintaining peace and security.
It consists of two types of rules:
1. Jus ad bellum: …
2. Jus in bellum: …
Governing when and why a state can use force against another.
Governing how military hostilities must be conducted.
How did the prohibition of the use of force develop:
- Before the 19th century, war was an accepted way of international relations.
- 1919: First time violence was banned under the 1919 League of Nations Covenant.
- 1928: First attempt to abolish war as a form of conflict resolution (in 1928 General Treaty for Renunciation of War).
- 1945: the UN Charter was created with the aim of protecting international peace and security and preventing another major conflict. > art. 2(4) UN Charter.
The prohibition of the use of force is laid down in art. 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.’
- The UN Charter’s reference to ‘force’ primarily pertains to armed actions. It prohibits both the use and threat of force within the context of international relations. This is also a rule customary law (Nicaragua, par. 190).
- Even actions by a state that don’t quality as ‘force’ under art. 2(4) of the UN Charter can still breach international law.
Interference by a State in another State can result in several violations:
… (3)
- Prohibition of the use of force (art. 2(4) UN Charter)
- Failure to respect the sovereignty of other States (art. 2(1) UN Charter)
- Violation of the principle of non-intervention
2 exceptions to the prohibition of the use of force in art. 2(4) UN Charter exist: … and …
- The right to self-defence: …
- Measures of the UN Security Council
the right to self-defence and the (non-)coercive measures available to the Security Council.
The ICJ has affirmed that the right to self-defence (art. 51 of the UN Charter), coexists with the right to self-defence under customary international law. If you take a look at the article you will notice four important elements: …)
-
Armed attack: … Required factors for an armed attack:
- Object/target: …
- Scale: …
- Perpetrators: …
- Timing: …
A State can only resort to self-defence under this article if an armed attack occurs.
- State’s territory, including sea and warships.
- Attack must be the gravest form of the use of force (ICJ Nicaragua, par. 51, 195).
- Typically, an armed attack by one state against another (par. 139), but private actors can also trigger self-defence under certain conditions.
Self-defense may only take place once the attack on the State has taken place.
- Customary international law: according to the Caroline doctrine, self-defense may already take place if there is an imminent attack (para. 194, Nicaragua case).
- This must be tested with restraint.
- This is different from preventive self-defense (this is clearly a violation of the prohibition on violence).
- Use of force must be proportionate and necessary.
- Individual or collective self-defence: …
In collective self-defense (art. 51 UN Charter), a state uses force to protect another state under attack.
- The assisting state doesn’t need to be attacked or bound by a treaty obligation to help. However, the victim state must give its consent, declaring itself under attack (par. 195 Nicaragua case) and requesting assistance (ICJ Nicaragua, par. 198-199).
- Art. 54 stipulates that UNSC must also be fully informed of the undertaken activities.
- Inherent right: …
- Necessity …
- Proportionality …
The UN Charter upholds the concept of self-defense, which already existed in customary international law. This entails additional requirements, as stated in the Nicaragua case: proportionality and necessity (Nicaragua, par. 194: Jaloud v. the Netherlands).
Mandates a state to explore peaceful alternatives before resorting to force in self-defence.
Ensures a fair balance between the armed attack and the measures taken by the victim state to counter it.
- Report: …
The measures taken by the state in exercise of the right to self-defence must immediately be reported to the Security Council (ICJ Nicaragua).
- Security Council measures: …
Self-defense is possible until the council has taken measures to protect international peace and security.
- Measures available to the UN Security Council under the UN Charter
The UN Security Council can authorize the use of force, when necessary, in accordance with the UN Charter, and employs both non-forcible and forcible measures to address threats.
- Member states commit to implementing the Council’s decisions (art. 25 of the UN Charter), and Charter obligations, including Council resolutions, take precedence over other international commitments (art. 103 UN Charter).
- You will notice that the further you browse through the articles, the more extensive the powers of the UN Security Council become.
- 15 States, incl. ‘permanent five’ (France, China, Rusland, UK, US).
Procedure: Art. 39 UN Charter
The Security Council identifies a threat to peace, breach of the peace or act of aggression, which can encompass a broad range of issues tied to international peace and security. When such threats are confirmed, the Council’s Chapter VII powers under the UN Charter are triggered.
Provisional measures: Art. 40 UN Charter
The Security Council can urge disputing parties to comply with provisional measures it deems necessary to prevent a situation from worsening. This might include ceasefire requests or troop withdrawals from specific areas. These measures are temporary and don’t affect the legal positions of the involved parties but can be binding in practice.
Non-forcible measures: Art. 41 UN Charter
The Security Council can use non-forcible measures that are binding on the disputing parties. These measures can include economic sanctions and the creation of international criminal tribunals in response to a crisis, targeting the individuals or institutions responsible for the threat to peace.
- Art. 41 UN Charter: provides a non-exhaustive list of possible non-forcible measures: termination of economic relations, modes of communication and diplomatic relations.
Forcible measures: Art. 42 UN Charter
When non-forcible measures aren’t enough to maintain or restore peace, the Security Council can resort to military operations through a ‘coalition of the willing’ or regional organizations.
- The council is dependent on the States and regional organizations for this.
- This includes humanitarian interventions via peacekeeping operations, with or without the consent of the affected state(s).
Discussion about whether humanitarian intervention is possible without state consent:
- Argument against: it violates state sovereignity.
- Argument in favor: humanitarian intervention is part of customary law.
- The council may use ‘measures of force’ from all members of the UN to protect international peace and security. For this purpose, the Council draws up a ‘special agreement’ that is negotiated with the States.
