Countermeasures and The Use of Force

Countermeasures and Use of Force

International law addresses problems in international relations.
Chapter 5: Peaceful settlement of disputes.
Examines international law governing resort to force and conduct of armed conflict.
Reviews how states enforce rights using measures short of military force.
Considers restraints on armed conflict and initiation of hostilities.
U.N. Security Council maintains international peace and security.
Veto power of permanent members can hinder Council actions.

\"Self-Help\" Under International Law

States establish customary international law rules governing coercive State behavior.
Response to rights violations sets precedent.
Countermeasures (self-help) are necessary without strong \"vertical\" enforcement.
States use collective sanctions, reputational costs, and exclusion from regimes.
Unilateral actions (countermeasures) can contravene international obligations.
Forcible countermeasures are now prohibited under the U.N. Charter.
Countermeasures refer to non-forcible actions violating international law.
Before 1945, armed force was common in response to illegal acts.
Article 2(4) of the U.N. Charter prohibits the threat or use of force.
Offended States can engage in retorsions: unfriendly but legal responses.
Retorsion examples: withdrawal of diplomats, termination of aid, economic sanctions.
Targeted sanctions against specific groups and individuals are favored but face legal challenges.

Tolerance and Limits of Countermeasures

Tolerance of countermeasures promotes respect for international obligations.
Countermeasures must not be too energetic, or they contribute to instability.
Used chiefly by rich and powerful States, potentially disadvantaging weaker States.
International Law Commission’s Draft Articles on State Responsibility: countermeasures as \"circumstances precluding wrongfulness.\"
A State can only take countermeasures to induce compliance.
Countermeasures must cease once compliance resumes and be proportional to the injury.
Must not violate fundamental human rights or jus cogens norms.
State must first call for obligations to be fulfilled before acting.
Countermeasures must cease once the dispute is submitted to a binding tribunal.
Proportionality and response to wrongful acts are widely accepted.

Air Services Agreement Arbitration

Illustration of countermeasures and their pitfalls.
Dispute arose from a 1946 bilateral Air Services Agreement between the U.S. and France.
The U.S. suspended Air France’s Paris–Los Angeles route as a countermeasure.
The arbitral tribunal found the U.S.’s retaliatory move permissible to bring France to negotiate.
Recognized risk of escalation in countermeasures.
Ruled U.S. response permissible and proportional to France's refusal.
In 1980, ICJ applied a similar rationale to the U.S.’s decision to freeze Iranian assets.
In 1997, ICJ held Czechoslovakia’s diversion of the Danube was not a proportional response to Hungary's project termination.
Article 60 of the Vienna Convention allows treaty suspension/termination for a material breach.
The law of countermeasures permits non-compliance rather than suspension.
Retaliatory actions risk being found illegal if the initial violation is not proven.
Responder is responsible for remedying its breach.

Regulating Resort to Armed Force

Jus ad bellum: International law regulates the resort to armed force by States.
Considers position before the U.N. Charter adoption.
Reviews Charter law and its regime for regulating the threat or use of force.
Assesses the operation of the Charter’s collective security and peacekeeping system.
Chapter 16 explores how international law regulates the conduct of hostilities—the jus in bello.

Limiting War Before the U.N. Charter

Ancient peoples distinguished between just and unjust wars.
By the Middle Ages, each party viewed itself as engaged in a just war.
Kant: \"The notion of a Right to go to war, cannot properly be conceived as an element in the Right of Nations.\"
The party must conform its behavior to the rules governing the conduct of armed conflict (jus in bello).
The 1919 Covenant of the League of Nations ushered in collective security.
The primary feature was a compulsory dispute settlement mechanism.
Starting with Japan’s 1931 invasion of Chinese Manchuria, the League found itself powerless.
The League lacked the political will to stop aggression.
The United States nor the Soviet Union were members of the League weakened its position.
The Kellogg-Briand Pact of 1928 attempted to outlaw war.
The International Military Tribunal at Nuremberg cited the Pact as a basis of aggressive war the “supreme international crime” before 1939.
Customary international law has long recognized self-defense as a permissible basis for resorting to military force.
The trickier question is whether a State can, in its sole judgment, decide that it is justified in using armed force in self-defense.

Anticipatory Self-Defense

Discussions often start with the 1837 Caroline incident.
British forces crossed the U.S. border and set the steamboat Caroline on fire.
U.S. Secretary of State Daniel Webster: anticipatory use of force permissible if necessity is \"instant, overwhelming, and leav[es] no choice of means and no moment for deliberation.\"
The British government obliged to show armed response was proportional to the threat and necessity.
Conditions of necessity, imminence, and proportionality reflect background rules for self-defense use of force.

The Law of the U.N. Charter

The core interest of States was to prevent a recurrence of world war.
The resulting political compromise enshrined the political power of the five permanent, veto-wielding members of the Security Council.
U.N. mechanisms continue to provide a critical forum for promoting global dialogue, cooperation, and self-restraint.

Force and Aggression

Article 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….\"
This can be regarded as the \"prime directive\" of modern international law.
\"Force\" refers to armed or military force, including cyber technologies producing \"kinetic\" effects.
Severe economic coercion, such as trade sanctions, is not traditionally understood to include.
Article 2(4)’s prohibitions include armed incursions and the threat or use of armed force for regime change.
Subsequent General Assembly resolutions proscribed \"intervention in the domestic affairs\" of States.
This \"non-intervention\" norm condemns foreign election interference.
Article 39: identifying and responding to any \"threat to the peace, breach of the peace, or act of aggression.\"
The General Assembly attempted to define aggression in a 1974 resolution.
The first State to use force should be deemed an aggressor, without self-defense justification.
Listing of acts qualifying as aggression, including armed attacks, invasions, occupations, bombardments, and blockades.
A 2010 amendment to the Rome Statute of the International Criminal Court tracks the General Assembly’s 1974 definition of aggression.
In 2017, the Assembly of States Parties to the Rome Statute voted to “activate” the Court’s jurisdiction over crimes of aggression.

Justifications for Use of Force

Actions authorized by the U.N. Security Council under Chapter VII of the Charter are not prohibited by Article 2(4).
A State can waive the prohibition on force by inviting foreign military intervention.
The traditional international law rule was that States could only offer aid and support to another country’s \"legitimate\" government in the face of insurrection.
A second potential justification for a unilateral use of armed force is \"humanitarian\" intervention.
The United Kingdom is the only U.N. Security Council member to have taken the position that humanitarian intervention could be legal in exceptional circumstances.
The idea of a Responsibility to Protect (R2P).
Dependence on the Security Council poses problems when one of the permanent five members vetoes, or threatens to veto, a proposed humanitarian intervention.
NATO countries decided to intervene to protect ethnic Albanians in the Serbian province of Kosovo.
Russian President Vladimir Putin explicitly cited the “Kosovo precedent” as a basis for intervening in and annexing the Crimean Peninsula in 2014.
That leaves self-defense the most frequently invoked justification for the use of force absent prior Security Council authorization.
U.N. Charter Article 51 explicitly recognizes a State’s \"inherent right\" to use force in self-defense \"if an armed attack occurs.\"
Article 51 adds procedural requirement to the exercise of this right.
In 2014–2015, a number of States used force in Syria against terrorist groups including ISIS.
Although Article 51 specifies that self-defense is permitted if an armed attack “occurs,” some degree of anticipatory self-defense is still permissible under the Charter framework and customary international law.
For example, the United States defended its naval quarantine of Cuba in 1962 as a response to the Soviet Union’s arms build-up.
Israel offered a self-defense rationale for its bombing of the French-built Osirak nuclear plant in Iraq in 1981.
The International Court of Justice has not clarified the legal regime surrounding these difficult questions of anticipatory self-defense, but it has addressed related issues.

Military and Paramilitary Activities in and Against Nicaragua

In the early 1980s, the United States supported efforts to destabilize and topple the left-leaning Sandinista government in Nicaragua.
Nicaragua brought a case against the United States in the World Court.
The United States’ multilateral treaty reservation meant that the ICJ could not apply Article 2(4) directly.
In a sharp reaction against this unfavorable decision, the Reagan administration withdrew the U.S. optional clause declaration.
The heart of the dispute was the United States’ assertion that it was permitted to use force against Nicaragua.
The Court found that El Salvador had made no formal request to the United States to engage in collective self-defense against Nicaragua.
The Court determined that the United States had therefore been the first to cross the threshold of engaging in an armed attack, meaning that the United States was actually the aggressor.
Although the United States has not changed its view that the ICJ lacked jurisdiction, the Court’s decision is often treated as an authoritative exposition of the customary international law governing the use of force.

Collective Security and Peacekeeping

The United Nations’ success or failure in preventing armed conflict rests on the Security Council’s ability.
Article 27 of the U.N. Charter provides that nine votes, plus the agreement of all five permanent members, are required to order any response to a breach of the peace or act of aggression.
Authorizing any credible response to aggression thus requires a high level of political will by the Security Council members, including the support or acquiescence of each of the permanent members.
The Charter’s system of collective security was never intended to address conflict among the permanent members themselves or rivalries acted out among their proxies.
Under Article 43, States were supposed to negotiate agreements with the United Nations to provide military contingents for the U.N.’s use, but no such standing agreements have actually been concluded.
Article 25 of the Charter provides that member States will \"accept and carry out the decisions of the Security Council.\"
The Security Council has used its powers broadly, including to modify or “adapt” the obligations of member States under other treaties.
The Security Council has taken other steps that some have challenged as beyond its competence under the Charter.
Despite the flurry of law-making activity by the Security Council, it is important to remember that the entire collective security mechanism of the U.N. Charter was essentially nullified during the decades of the Cold War.
Iraq’s invasion of Kuwait in August 1990 revived Chapter VII’s collective security regime.
Within hours of the invasion, the U.N. Security Council signaled its intent to invoke Chapter VII by determining that Iraq’s action amounted to a “threat to the peace, breach of the peace, or act of aggression” within the meaning of Article 39.
General Assembly began to assert its authority to order certain kinds of actions without Security Council approval.
This created the practice of deploying U.N. peacekeepers, authorized under Chapter VI of the Charter.
Unlike enforcement actions against misbehaving countries, peacekeeping forces operate with the permission of the host State.
In a significant decision, the World Court upheld the right of the General Assembly to create such forces and also to require that all member States pay their share of the expenses.
Hammarskjöld coined the term “Chapter VI ½” operations to describe them.
The presence of the U.N. peacekeepers often does not promote the negotiation of a final political settlement.
More recently, U.N. peacekeepers have been used for other tasks, such as election monitoring, with varying degrees of success.
International law limitations on the use of force will continue to reflect a mix of customary international law principles, interpretations of Articles 2(4) and 51 of the U.N. Charter, and actions by the Security Council and other U.N. organs.