PIL - The Use of Force by States

What are the key ideas behind the concept of a “just war” as described in the text?

The document asks whether there is such a thing as a just war. It discusses varying historical ideas—including antiquity, the Asian approach, and Christian perspectives during the Crusades—and raises questions about the moral and legal justification of war.

How did ancient and early cultural approaches conceptualize the use of force?

In antiquity and throughout diverse societies (like Asian cultures and early Christian contexts), force was often seen through a mix of religious, ethical, and pragmatic lenses. These views set the groundwork for later discussions on just war and sovereignty.

What significance do the Christian Wars and the Crusades have in the context of the use of force?

They illustrate how religious motivations were intertwined with military action. The Crusades, for example, are discussed as early examples where religious justification was used to legitimize the use of force, raising questions that echo in modern debates about just war.

What role did the birth of state sovereignty—particularly marked by the Westphalia Peace Treaty of 1648—play in the use of force?

The Peace of Westphalia is seen as a turning point in establishing state sovereignty and the balance of power. This treaty laid the legal and political groundwork that eventually led to modern principles governing the use of force, shifting warfare from purely religious or feudal conflicts to conflicts between sovereign states.

How did wars in the 19th century, including the American Civil War and the World Wars, influence views on the use of force by states?

These conflicts further shaped the legal and moral paradigms. They underscored the evolution from customary practices to codified laws. In particular, the massive scale and ideological dimensions of the World Wars catalyzed the development of international institutions and conventions governing military force.

What were the defining characteristics of the legal conception of “the use of arms” before 1945?

Before 1945, the legal framework around the use of arms was built on concepts such as:

• State in a War: The state’s recognized status as a combatant entity.

• Declaration of War: The formal announcement signaling the start of hostilities.

• Neutrality: The conditions under which states remained uninvolved.

• Surrender: The legal procedures and implications when a state capitulates.

• Wilson Doctrine and the League of Nations: Early efforts to establish international norms and collective security.

What does Article 2(4) of the UN Charter specify about the use of force?

Article 2(4) states that “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.” The preparatory works clarify that “force” here means “armed force.” This article is central to the modern international legal order regulating the use of force.

How does customary international law complement the UN Charter regarding the use of force?

Customary international law—and instruments like the 1970 Declaration on Principles of International Law—reinforce the idea that states have an obligation to refrain from using force except under strict conditions. These principles guide the interpretation and application of the UN Charter in real-world situations, such as the Corfu Channel case.

What are the main categories of force as outlined in the document?

The categories include:

• Unilateral Use of Force: A state’s independent decision to use force.

• Countermeasures: Non-force retaliatory actions that remain lawful.

• Retorsion: Legally acceptable but unfriendly acts responding to hostile behavior.

• Reprisals: Acts of retaliation that involve force but are considered illegal under international law.

What is the right of self-defence according to both customary international law and the UN Charter?

The right of self-defence is recognized as inherent or natural. Key points include:

• Caroline Case (1837): Established the criteria for an “instant, overwhelming” response with no alternative.

• Article 51 of the UN Charter: Allows for individual or collective self-defence in response to an armed attack until the Security Council intervenes.

• ICJ Nicaragua Case (1986): Shows how customary law and the UN Charter are interpreted together in self-defence cases.

What specific issues complicate the application of the right to self-defence?

Complications include:

• Necessity and Proportionality: Any defensive action must be both necessary and proportionate to the attack.

• Determining an Armed Attack: Especially when non-state actors are involved.

• Pre-emptive Self-defence: Its legality depends on strict conditions.

• Protection of Nationals Abroad: Raising questions about when and how states can protect their citizens outside their borders.

What is the difference between collective security and collective self-defence?

• Collective Self-defence: Involves mutual defense agreements (e.g., NATO) where an attack against one member is treated as an attack against all, usually requiring a formal request for assistance.

• Collective Security: Centers on the UN Security Council’s authority under Article 39 to identify threats to peace and authorize measures (including military action) to restore international order. Cases like the Invasion of Kuwait highlight this approach.

What are some examples of intervention without UNSC authorisation, and why are they significant?

Examples include:

• US-Panama Intervention (1989): An intervention conducted without explicit UNSC backing.

• Interventions in Civil Wars (e.g., Vietnam, Angola): Where criteria for intervention were unclear.

• Russia’s involvement in the Syrian conflict: Sometimes justified by claims of invitation from local authorities.
  These cases illustrate the legal and political ambiguities surrounding state interventions.

What is meant by humanitarian intervention, and can you give some examples?

Humanitarian intervention is military action undertaken to prevent or stop widespread human suffering. Examples include:

• Iraq’s actions against the Kurds and Shia populations (with UNSC resolutions such as 699 in 1991).

• The establishment of no-fly zones by the UK.

• The Kosovo case: Which raised debates about legitimacy without explicit UNSC approval. These examples showcase the tension between humanitarian motives and international legal frameworks.

How has the international community addressed the issue of terrorism through legal frameworks?

Although there is no universally agreed definition of terrorism, the international community has taken several steps:

• UNGA Committees and Ad hoc Committees: Initiated in 1972 and later years to address terrorism.

• Conventions: Including the 1997 Convention for the Suppression of Terrorist Bombing and the Convention on Financing of Terrorism.

• UNSC Resolutions: Such as 1368 (2001) and 1373, which outline measures to combat terrorism and bolster international peace and security. These actions reflect the evolving legal response to the threat of terrorism.