PIL - The Use of Force by States

Is there anything like a just war ?

• Antiquity Concept

• -  Asian Approach

• -  Christian Wars, the Crusades

• -  The Birth of the Sovereignty

• -  Westphalia Peace Treaty, 1648 and the beginning of the Balance of Power Concept

• -  XIX centuries wars

• -  American Civil War

• -  First World War

• -  Second World War

  è What is the rationale behind war? Not usually related to any type of justice, more about specific interests.

The use of arms as a legal concept before 1945:

• State in a war

• -  Declaration of war

• -  Neutrality

• -  Surrender

• -  Wilson doctrine

• -  The League of Nations

President Wilson’s 14 points:

1. Open diplomacy

2. Freedom of the seas

3. Removal of economic barriers

4. Reduction of armaments

5. Adjustment of colonial claims

6. Conquered territories in Russia

7. Preservation of Belgian sovereignty

8. Restoration of French territory

9. Redrawing of Italian frontiers

10. Division of Austria-Hungary

11. Redrawing of Balkan countries

12. Limitations on Turkey

13. Establishment of an independent Poland

14. Creation of an Association of nations

The 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 other manner inconsistent with the purposes of the united Nations.”

Definition of Force

• As provided in the preparatory works of the UN charter, “force in the article above is considered “armed force”.

• -  Customary law and the obligation to refrain from the “use of force” as a solution of a conflict.

1970: Declaration on Principles of International Law

• Friendly Relations and Co-operation among States in Accordance with the Chapter of the United Nations.

• -  Case: Corfu Channel: negligence, full responsibility of the state when they take unlawful measures.

Categories of force, unilateral use of force. Retorsion

“unfriendly and harmful act”, yet lawful as a retaliation against hostile acts from another state.

Reprisals

• illegal acts of retaliation when involving force.

•  Retaliations without force could still be considered lawful in some circumstances.

  Normally, in international law such actions are defined as “countermeasures”.

The right of self-defense:

• Customary international law: Definition given by the US State Secretary Daniel Webster in 1841/42 and agreed in webster-Ashburton (Alexander Baring) Treaty: the necessity for self-defense must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”.

Caroline case (1837):

Diplomatic incident between the U.S. and Britain. British forces attacked and destroyed the SS Caroline, a U.S. steamboat aiding Canadian rebels (Canada was still part of the British empire), violating American sovereignty. The U.S. protested, and the dispute was settled in the Webster-Ashburton Treaty (1842). Casualties were not very high but impressive to see burning boat and creating strong diplomatic incident. This case established the Caroline Doctrine, a key principle in international law stating that self- defense must be necessary and proportional.

Art 51 UN Charter

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way a\ect 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.”

ICJ Nicaragua Case, 1986:

To what extent is customary IL and the UN charter applicable? The right of the self-defense could be perceived as “inherent” or “natural” right of the State, that could be only in the context of the International Customary Law, which leaves the interpretation that in that field the UN Charter and the customary law still co-exist in the international legal order.

Two important principles: necessity and proportionality

• Example: Hamas-Israeli war: Necessity principle respected but proportionality not respected. Hamas attacked Israel, Israel answered (necessity) but killed too many people to claim the proportionality principle.

Collective self-defense:

Militaryblockstreaties: eg. NATO, art5, If one country is under attack, all oft the countries will defend. Warsaw pact during cold war.

o General principle:expressed in Nicaragua case,ICJ“need of the victim of such attack to present formal request for assistance”.

o Same doctrine used for the UK attacks against ISIL
o Belgium informing the UNSC,7June2016(Syria):countries under attack should

first inform the UNSC.

Collective security according to UN Charter:

Art39: 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 Articles 41 and 42, to maintain or restore international peace and security.

o Example: Korean War, UN took part inconflict( not with blue helmets butas part of south Korean army). Now UN tries to be more neutral.

Aidtothelegitimateauthoritiesofastate:collectivesecurityapproach:callto the UNSC necessary.

Intervention

Example: Invasion of Kuwait by Iraq, UNSC resolutions. Kuwait invasion by Iraq, pushed back by US, UK, France? Intervention. Aid to the legitimate authorities of a state:collective securityapproach:callto the UNSC necessary.

Intervention

Example: Invasion of Kuwait by Iraq, UNSC resolutions. Kuwait invasion by Iraq, pushed back by US, UK, France? Intervention.

Intervention

• Intervention without UNSC authorization: US-Panama intervention, 1989

• -  Civil War, absence of clear criteria: US in Vietnam, USSR and Cuba, Civil War in Angola.

  Could be said that Russia intervened in the Syrian conflict invited by the authorities?

  Considered legal as Bachar al Assad illegally in power.

• -  Aid to Rebels, support to guerrilla: Nicaragua case, 1986, clear example

• -  1970 Declaration on Principles of International Law: “No State or group of States has the

  right to intervene, directly or indirectly, for any reason whatever, in the internal or external a>airs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.”

• -  DRC Case – Lusaka Ceasefire Agreement and UNSC Resolution 1291 (1990) UN Mission to Congo (MONUC)
  Support:

  o Rebels:RwandaandUganda
  o Government :Zimbabwe, Angola and Namibia

Humanitarian intervention:

• Individual states: questions on the legality of such interventions if no authorization of the UNSC.

  Examples:

• Iraq using weapons against Kurds and Shia in its territory, UNSC699 (1991)

• o UK declaring “no-flyzones”
  o Kosovocase

• -  International community: under international humanitarian law.

Terrorism:

• Although no definition has been agreed on international level, so far, the matter has been taken very seriously by the international community.

• -  1972, UNGA set up an Ad hoc Committee on terrorism

• -  1996, UN Ad hoc Committee to elaborate international convention on terrorism,

• -  1997, Convention for the Suppression of Terrorist Bombing,

• -  1999, Convention on Financing of Terrorism,

• -  2005, Convention for the Suppression of Acts of Nuclear Terrorism

• -  UNSC Resolutions 1368 (2001) “Determination to combat by all means threats to

  international peace and security caused by terrorist attack”

• -  Counter-Terrorism Committee, September 23rd, 2001, UNSCR 1373