Use of Force - Copy.pdf - TheUseofForce :UNC Exceptions...

Unformatted text preview: The Use of Force Prohibition on the use of force: UNC Exceptions: • Self defence –Individual & Collective –Anticipatory v pre‐emptive • Protection of nationals abroad • Self‐determination? • Consent/invitation (revisit) • Collective security under Chapter VII • Humanitarian intervention/R2P? Prohibition on the threat or use of force UN Charter Art 2(4): 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 manner inconsistent with the Purposes of the United Nations. Nicaragua v US (merits) 1996 ICJ Armed Activities (DRC v Uganda) ICJ 2005 Definition of Aggression the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: a) b) c) d) e) f) g) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; The blockade of the ports or coasts of a State by the armed forces of another State; An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Self defence at Custom The Caroline 1837 self‐defence: must be • In response to an armed attack • Necessary • Proportionate • Compliant with other aspects of IL eg IHL re military targets Self defence in the UN Charter: art 51 Nothing in the present Charter shall impair the inherent right of individual or collective self‐ defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Self defence in the UN Charter: art 51 Measures taken by Members in the exercise of this right of self‐defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Armed Attack Oil Platforms (Iran v US) ICJ (2003) • Armed Activities Selfdefence: • Any mil action taken by DRC against U justified in self‐defence • Re U’s counter‐claim, did not claim to be victim of armed attack, did not report to SC • Attacks came from ADF militia, not from DRC govt Consent: DRC cd withdraw consent at any time, and it did in Jul 98 collective self‐defence Armed Activities • Simma • Kooijmans Eg NATO: Article 5 The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all Anticipatory Self defence Ethiopia’s claim in Ethiopia‐Eritrea Claim Commission 2005 Chapter VII UNC Art 39: trigger The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with article 41 and 42, to maintain or restore international peace and security. Art 41 Sanctions The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the Untied Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. SCR 1267 (Afghanistan),1373 (terrorist financing) Art 42 use of force by SC Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Collective security under Chapter VII Korea 1950 Iraq 1991 Cf Iraq 2003 ‘Coalitions of the willing’ GA ‘Uniting for Peace’ Res 1950 Suggestions for Exam Preparation • Summarise each topic down to one page Use the format for each topic Eg Custom: IRAC State Responsibility: A+B‐C=>SR =>R • Practise doing exam problems in exam conditions using your one page summaries In the exam: • Stick to the time limit for each question GOOD LUCK! ...
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