P.I.L Use of Force (Kaczorowska)

What are the two exceptions to the prohibition on use of force

1. Right to self defence
2. Use of Force by the Security Council where deemed appropriate

What was the first universal treaty that outlawed war?

1928 Kellogg Briand Pact

Article 2(4)

All members of the UN 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 matter incompatible with the purpose of the United Nations

What does Article 2(4) not prohibit?

1. The use of economic co-ercion or resort to other non-violent measures although those may be unlawful under certain treaty provisions
2. 'international relations' suggests that states are not prohibited from using force domestically (eg. to deal with rebellion or civil war)

Interpretation of 'against the territorial integrity or political independence of any state'

Interpreted in the Corfu Channel Case as meaning ANY use of force, even when not directed against territorial integrity or political independence of any state

Article 51 of the UN Charter

preserves the inherent right of individual and collective self defense, if an armed attack occurs, until the UNSC has taken measures to maintain international peace and security

What does the Nicaragua case say about the validation of a claim in self defence

An absence of a report to the UNSC of an action taken in self defence may be an indication that the state in question was itself not convinced that it was acting in self defence

Ordinary meaning of Article 51 "if an armed attack occurs"

After an armed attack has occurred

Anticipatory self defense

A state is allowed to resort to self defence to respond to an imminent armed attack that has not yet occured

pre-emptive self defence

A state is allowed to resort to self defence to respond to an armed attack which is neither actual nor manifestly imminent but which ay take place in the future if no action is taken // President GW Bush // normally rejected by the international community

What does Nicaragua case say about use of force and it's responding self defence

In order to amount to a use of force that justifies the use of force in self defense, the initial use of force must be of a serious nature/ measures of self defence must be taken as a last resort and must be proportionate to the need to respond with force to the attack suffered

Collective self defense as purported by Nicaragua and as incorporated in Article 51

A state must:
1. have declared itself to be under attack
2. have requested the assistance of third state to justify the excersize of the right to collective self defense

Humanitarian intervention or the responsibility to protect

can be defined as the coercive interference in the internal affairs of the state, involving the use of armed force, with the purposes of addressing massive human rights violations or preventing widespread human suffering. When authorised by the UNSC this is lawful

What is the responsibility to protect

1. a state has primary responsibility to protect its nationals from avoidable disasters such as mass killing etc.
2. If a state fails to do so or is unwilling to protect it's nationals then the international community has collective responsibility to take the necessary actions including military intervention

Article 2(3) of the UN Charter

All members shall settle their international disputes by peaceful means, in such a manner that international peace and security and justice are not endangered

What does Nicaragua say regarding Article 2(4)

the ICJ accepted that it reflects a rule of customary international law applying to all states whether members or not, and does not affect state's rights to use the use of force to suppress internal disturbances once they conform to humanitarian law

Corfu Channel Case Facts

1. Two British warships struck by mines while excersizing right of innocent passage
2. UK carried out minesweeping operations in the Corfu Channel arguing that it was not breach of article 2(4)
3. Further this uniltaeral action was necessary as the UNSC did not act

What was held in the Corfu Channel Case

The arguments of the British were rejected an the court stated that they can only regard he alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to more serious abuses

Article 39 of the UN charter

the UNSC has the power to determine 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

Article 1 from the Resolution on the Definitition of Aggression

Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in an other matter inconsistent with the Charter of the United Nations

Article 5 (1) from he Resolution on the Definition of Aggression

1. No consideration of whatever nature, whether political, economic military or otherwise, may serve as a justification for aggression

Article 5(2) from the Resolution on the Definition of Aggression

2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility

Article 5(3) from the Resolution on the Definition of Aggression

3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized s lawful

Article 7 from the resolution on the definition of aggression

This definition shall not prejudiece the right to self determination, freedom and independence for oppressed peoples under colonial or racist regimes/ forcibly deprived of this right by aliens

Caroline Case

1. Leaders f the Canadian rebellion enlisted the help of a large number of American nationals, the resulting fore established itlef on Navy Island in Canadian waters, raiding Canada's shores and attacking British ships, using the Caroline, a U.S ship
2. A small Canadiann force still loyal to the British seized the Caroline, which was in an American port at the time, set it on fire and sent it drifting over Niagara Falls, 2 U.S nationals wee killed in the process
3. The U.SS claimed reparation to which Britain replied it was a necessary act of self defense
4. Three years later British subject was apprehended for murder after stating his involvement,Britian demanded that he be released as those who had engaged in the Caroline operation wee executing an act f state which they did not have t answer for in the municipal court to which the U.S government conceded

Article 25 off the UN Charter

All members are required to accept and carry out UNSC decisions adopted under any chapter of the charter

Article 40 of the UN Charter

Normally not used to void having thee take enforcement actions against a state

Resolution 1874

The UNSC determined that by carrying out nuclear test and missile activities by North Korea had generated increased tension in the region and posed a clear threat to national peace and security

The Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory (Case Facts)

1. Israel started building a 730 km long wall in the region of the boundary between Israel and Palestine which did not follow the de facto boundary (known as the Green Line) fixed by a previous agreement between Israel and Jordan
2. The wall included into the territory of Israel 1) illegal israeli settlements, fertile palestinian land and the most important water wells in the region and the Green Line itself often separated Palestinian land owners from their land, some palestinians were also left living in spaces between the green line and the wall

The Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory (Israel's Argument)

1. Israel was acting out of self defence or was acting out of necessity to protect its nationals from terrorist attacks originating in Palestinian territory
2. The Palestinian drafted resolution condemning the construction of the wall and seeking to ban israel from extending deep into the West Bank was also rejected

Who requested for the ICJ to give an opinion on the Israel Wall

UNGA

What were the arguments submitted by Israel regarding the competence of the UNGA to make such request?

The UNSC was already engaged in the situation therefore a request by the UNGA for an advisory opinion was ultra vires

What was held in Legal Consequences of the Construction of the Wall Case

1. All arguments of Israel were rejected
2. Article 12 of the Charter made the distinction between an advisory opinion and a recommendation and an increasing tendency of both the General Assembly and the SC to deal with matters simultaneously

Democratic Republic of Congo v Belgium on UOF

1. DRC granted independence by Belgium in 1960
2. Within a few days, the DRC army mutinied and law and order broke down, resulting to nationals, aliens and property.
3. Belgian troops intervened under a treaty of friendship
4. DRC eventually sought assistance as was provided with it by the UNSC allowed the UNSG to provide the Congo with military assistance
5. USSR vetoed non-intervention resolution that proposed that states only intervene through the force selected

1962 Cuban Missiles Crisis Case Facts

1. USSR was shipping missiles and other weapons to Cuba that could pose a threat to the security of the U.S
2. U.S imposed a something akin to a blockade as it was not war time called a quarantine

1962 Cuban Missiles Crisis, U.S Justification

1. Self defence (however this would be pre-emptive and it would need to align with the Caroline principal, immediate and proportionate to harm suffered or threatened, this could have created a dangerous precedent due to the U.S missiles present in Turkey aimed at Russia
2. Due to possibility of the Russian veto preventing the quarantine the U.S argued that the concept of 'enforcement action' subject to prior authorization does not include measures falling shirt of the use of armed force or taken voluntarily.