BLAW 442 (ch7)- Use of Force

What has the Secretary-General of the United Nations (Kofi Annan) stated before?

"No principle of the Charter is more important than the principle of the non-use of force as embodied in Article 2, paragraph 4..."

How has the use of force been directly linked to state sovereignty?

A state's unfettered right with limitless power to use all possible means to guard and protect their own interests

Regarding war, what distinction did early Christianity make?

Just war (bellum justum)
vs.
Unust war (bellum in justum)

What was the doctrine of just war founded on?

The premises that force was appropriate if it complied with God's will

What was the doctrine of just war justified by?

-State sovereignty
-Religious grounds

What provided a catalyst for a revolutionary change in the attitudes toward the use of force?

The devastation of World War I

What was the creation of the League of Nations an effort for?

The creation of a world community overseeing the conduct of states

Is there a general prohibition on the use of force by states to resolve conflicts?

Yes, with exceptions

What was the primary goal of the UN when it was created?

To maintain international peace and security

Currently, what systems do we have to use against any state resorting to the use of force?

Collective sanctions

Where are the prohibitions / exceptions to the use of force found?

Primarily:
-The various provisions of the UN Charter
Secondarily:
-Customary international law

Prior to the UN Charter, what other attempts were made to regulate the use of force?

-Hague Conferences
-Martens Clause
-League of Nations
-General Treaty for Reunification of War (Pact of Paris) Kellogg Brand Pact

When did the first Hague conference take place?

1899

What was the aim of the first Hague conference?

To reduce the suffering of war through:
-Reduction of military budgets
-Disarmament

What was the success / failure of the first Hague conference?

Success = work on international humanitarian law
Failure = deduction of military budgets / armament

When did the second Hague conference take place?

1907

What was the aim of the second Hague conference?

-Elaboration on the provisions of:
-Convention relative to the pacific settlement of international disputes
-International commissions of inquiry
-Questions relative to maritime prizes

When was the Martens Clause introduced?

The first Hague Conference (1899)

What effect did the Martens Clause have on our modern day philosophy of the UN Charter?

It set the precedent

What does the interpretation of the excerpt of the Martens Clause regard?

The relationship between treaties and customary international law

What happens if a treaty does not currently address a case / issue that has presented itself?

-Customary law will govern the situation
-Parties involved would look towards general principles of law
(necessity, proportionality, reasonableness, humanity)

Which clause has been repeated in nearly every piece of international legislation since its first appearance?

The Martens Clause

When was the League of Nations conceived?

Following WWI

Why was the League of Nations conceived?

States needed an international forum in which to address threats to peace and security

Why was the League of Nations eventually disbanded?

There was not widespread recognition of the organization

What did the League of Nations attempt to accomplish?

-Introduce procedures to attempt to restrict when war could be resorted to
-Formed a dispute settlement forum of arbitration / judicial settlement

What does the covenant of the League of Nations generally state?

In order to promote international cooperation / achieve international peace and security, League of Nations members must agree to certain principles

What were the certain principles of agreement outlined in the covenant of the League of Nations?

-Not to resort to war
-Open, just, and honourable relations between nations
-Understandings of international law as the actual rule of conduct among goverments
-Maintenance of justice / a scrupulous respect for all treaty obligations

What did the Kellogg-Brand Pact attempt to accomplish?

Prohibiting war

What did Article I of the Kellogg-Brand Pact regard?

The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another
(aka. contracting parties declare a condemnation on war)

What did Article II of the Kellogg-Brand Pact regard?

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means
(aka. disputes of any nature/origin shall only be sought to be resolved by peaceful means)

What are the integral chapters of the UN Charter?

-Chapter VI
(pacific settlement of disputes)
-Chapter VII
(action with respect to threats, breaches, acts)

What does Chapter VI of the UN Charter regard?

-Pacific Settlement of Disputes
-Authorizes the Security Council to pass resolutions encouraging peaceful dispute resolution in an atmosphere of escalating tension

What does Chapter VII of the UN Charter regard?

-Action with respect to threats to peace, breaches of peace, and acts of aggression
-Authorizes the Security Council to pass resolutions which condemn aggression and seek to restore peace / security via empowering member-states to use force against an aggressor

Prior to the existence of the UN Charter, what was the governing structure when it came to engaging in any use of force?

The Just War Doctrine

What were the 3 main concepts to the Just War Doctrine?

-Conditions that justified use of force
(jus ad bellum)
-Rules of how to engage when using force
(jus in bello)
-Expectations of how to conduct relations at the conclusion of using force
(just post bellum)

How was the UN founded?

-Established following WWII with broad international support

What did the creation of the UN charter create?

A revolutionary method for addressing armed conflict

What did the UN Charter establish?

A system of collective security which outlawed armed conflict except when authorized by the UN / in self-defense

What is the UN based on?

The system of collective security that involves the support of member states to protect and strengthen the security of each individual state

What fundamental distinction did the UN Charter make?

Illegal vs legal use of force

What 3 guiding principles is the UN Collective Security System founded on?

-Prohibition (on the use of force by states)
-Safeguard (Security Council has monopolistic right to authorize use of force)
-Self-Defense (reserved right of individual / collective self-defense)

What do the various articles of the Charter deal with?

-The prohibition on the use of force
-Saving succeeding generations from the scourge of war
-To cooperate and live together peacefully

What articles are mentioned in relation to the prohibition on the use of force by states guiding principle of the UN Collective Security System?

-Article 1
-Article 2(3)
-Article 2(4)

What does Article 1 in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System generally say?

-Maintain international peace / security
-Take effective collective measures for prevention / removal
-Bring about adjustment / settlement of breaches by peaceful means

Which article, in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System places an obligation on member states to settle their disputes peacefully?

Article 2(3)

What does Article 2(3) in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System generally say?

-Settle international disputes by peaceful means
-In a manner that international peace / security / justice are not endangered

Which article, in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System prohibits member states from using force in their international relations?

Article 2(4)

What does Article 2(4) in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System generally say?

-Refrain from the threat / use of force against the territorial integrity / political independence of any state
-Refrain from use of force in any manner other than that is consistent with the purposes of the UN

What does Article 2(4) in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System generally provide for?

-Prohibition of force
-Collective agreement against using force

How have most experts interpreted Article 2(4) in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System?

To be a ban on the use of force as in "territorial integrity / political independence of states"

What is the collective principle under Article 2(4) in relation to the prohibition on use of force by states guiding principle of the UN Collective Security System?

A general ban on use of force except in cases where there is a collective action pursued to maintain / restore international peace / security

On what grounds did the ICJ hold that the prohibition on use of force is covered by?

-Treaty law (UN Charter)
-Customary international law
-Preemptory norm (jus cogens)

Who is the prohibition on use of force validated by?

Universally

Who does the prohibition on use of force apply to?

-Members of the UN
-Non-members of the UN also under customary international law

Does the universal prohibition on the use of force prohibit only the use of force?

No, it also includes the threat of the use of force

Why did the UN purposely use the term 'use of force'?

To broaden the application to include types of hostilities short of war

What does the safeguard aspect in relation to the guiding principles of the UN Collective Security System generally regard?

The monopoly of the Security Council's discretion on the use of force

What articles of the UN Charter cover the safeguard aspect of the UN Collective Security System?

Articles 39-51

What does Article 39-41 in relation to the safeguard guiding principle of the UN Collective Security System generally say?

Provides a sanctions system that states can utilize against states that have threatened / used force in a manner that amounts to a threat / breach / act of disturbing the peace

What does Article 39 in relation to the safeguard guiding principle of the UN Collective Security System generally say?

-Security Council shall determine existence of any threat / breach / act of disturbing the peace
-Recommend / decide what measures shall be taken in accordance with Articles 41 and 42 to maintain / restore peace / security

What is Article 39 in relation to the safeguard guiding principle of the UN Collective Security System commonly known as?

The tripwire

Why is Article 39 in relation to the safeguard guiding principle of the UN Collective Security System commonly known as the tripwire?

It triggers the UN into:
-Determining whether or not an act / threat of aggression has taken place
-What measures will be taken

What is another way to describe the tripwire article (39) in the UN Collective Security System?

Concept of determine and decide

What is Article 40-42 in relation to the safeguard guiding principle of the UN Collective Security System generally about?

The measures that the Security Council may take

What does Article 40 in relation to the safeguard guiding principle of the UN Collective Security System generally say?

In order to prevent an aggravation of the situation, before making any recommendations / decisions on measures to take, the Security Council may:
-Call upon the parties concerned to comply with provisional measures it deems necessary / desirable
(measures must be without prejudice to rights / claims/ position of the parties concerned)
-Duly take account of failure to comply with provisional measures

What is Article 41 in relation to the safeguard guiding principle of the UN Collective Security System generally about?

Allows the Security Council to impose sanctions on:
-Trade
-Economics
-Arms embargoes

What does Article 41 in relation to the safeguard guiding principle of the UN Collective Security System generally say?

Security council may:
-Decide on measures not involving the use of armed force to give effect to its decisions
-Call upon members of the UN to apply such measures
-Including complete / partial interruption of:
>economic relations
>rail
>sea
>air
>post
>telgraph
>radio
>any other means of communication
>severance of diplomatic relations

What are the partial / complete interruption measures in Article 41 in relation to the safeguard guiding principle of the UN Collective Security System aimed to accomplish?

Putting pressure on an offending state without using force

In regards to the UN Collective Security System, what are the 2 exceptions to the use of force in international relations?

-Authorized use of force
-Self-defense

What is Article 42 in relation to the self-defense guiding principle of the UN Collective Security System generally about?

Gives the Security Council power to authorize the necessary use of force to maintain international peace / security

Since the UN Security Council does not have its own military force, how does it enforce its recommendations / decisions?

The authorization of member states to use force

What does Article 42 in relation to the self-defense guiding principle of the UN Collective Security System generally say?

-Security Council may take action by air, sea, or land forces as necessary to maintain / restore peace / security
-Such action may include:
>demonstrations
>blockade
>other operations by air/sea/land by members of the UN

In order to exercise its power to order the use of force, what is the Security Council required to do?

Follow the procedures provided for in Chapter VII of the Charter

Under Article 42 of the UN Charter, what is recognized regarding retaliation?

It should only be used as a last resort, after all non-forcible measures have been exhausted

What does Article 42 of the UN Charter reiterate in regards to the forcible measures provided to the Security Council?

The goal is only to maintain / restore international peace / security

What actions within the Security Council did the drafters of the UN Charter likely not foresee?

-The political posturing
-Resorting to the veto power (by 5 permanent members)

What effect did the Cold War have on the UN Security Council?

-Deadlock / restraint
-Made them a potentially impotent organization
-Lead to ongoing criticism of its usefulness

What are the 3 types of self-defense?

-Armed attack (article 51)
-Anticipatory self-defense
-Pre-emptive self-defense

What is the concept of self-defense authorized by?

-Customary international law
-The UN Charter

When does the concept of self-defense become unclear?

When a state:
-Is merely developing a capability
-Appears to be taking preparatory steps to an attack

What is Article 51 in relation to the self-defense guiding principle of the UN Collective Security System generally about?

-Allows a member state to use force in self-defense when there is an armed attack
-Requires immediate reporting of any exercising of self-defense
-Must not in any way affect the mandate of the Security Council under the Charter

What does Article 51 in relation to the self-defense guiding principle of the UN Collective Security System generally say?

-Nothing shall impair the inherent right of individual / collective self-defense
-Until the UN Security Council has taken measures necessary to maintain peace / security
-Measures taken in exercise of this right shall be immediately reported to the Security Council
-Measures shall not in any way affect the authority / responsibility of the Security Council to take action as it deems necessary

What are the 2 views on self-defense under Article 51 of the UN Charter?

-The savings clause view (broad)
-The modern view (narrow)

What are the 2 opposing views on self-defnese under Article 51 of the UN Charter based on?

The interpretation of Article 2(4) of the UN Charter in combination with Article 51
(use of force + self-defense)

What does the savings clause view on self-defnese under Article 51 of the UN Charter focus on?

-Mention of / language use "inherent right" of self-defense

What is the position of the savings clause view on self-defense under Article 51 of the UN Charter?

-Use of force is excluded from the scope of Article 2(4) and the
-CIL right of self-defense is in addition to and not restricted by article 51

What does the position of the savings clause view on self-defense under Article 51 of the UN Charter imply?

-Anticipatory self-defense is within the meaning of the article
-No intention to impair the scope of the inherent right of self-defense set out in the CIL
-Use of self-defense to protect:
>nationals abroad
>property abroad
>attacks against nationals abroad
>wars against terrorism
>existence of WMDs abroad
-Justifies use of force as a means of self-defense

What is the ultimate implication of the savings clause view on self-defense under Article 51 of the UN Charter?

Justification of the use of force as a means of self-defense

What is the modern view on self-defense in Article 51 of the UN Charter?

UN Charter and Article 51 supersede all pre-existing customary international law regarding self-defense

What does the modern view on self-defense in Article 51 of the UN Charter mean?

-No reactive right to respond to aggressors without informing the UN Security Council first
-Must keep response within constraints of Article 51 to be permissible under Article 2(4)

What does the modern view on self-defense in Article 51 of the UN Charter indicate?

If there is no armed attack, there is no right to self-defense, no matter the extent of the act

What does the modern view on self-defense in Article 51 of the UN Charter imply?

-Anticipatory self-defense is not permitted
-Pre-emptive self-defense is not permitted

Which interpretation of Article 51 of the UN Charter more consistent?

The modern view

Why is the modern view on self-defense under Article 51 of the UN Charter more consistent with Article 2(4)?

-Because it intends only to clarify prohibition on use of force instead of qualify it
-Article 51 is merely intended to modify pre-existing right which existed under CIL

What is the Caroline Standard?

Was based on an event where a New York boat that was intended to help rebels in Canada was destroyed en route by the British to stop the flow of assistance.
British government argued the concept of anticipatory self-defense

What is the concept of anticipatory self-defense?

There is no other route besides self-defense because the necessity of it is "instant, overwhelming, and leaving no choice of means and no moment of deliberation
Taking into account proportionality towards unreasonable / excessive actions

Is anticipatory self-defense more reactive or proactive?

Reactive

What are the commonly accepted criteria for the use of force in anticipatory self-defense?

-Necessity
-Imminence
-Proportionality
-Exhaustion of peaceful options

Is pre-emptive self-defense more reactive or proactive?

Proactive