International Law and the Regulation of the Use of Force

Administrative Announcements: Midterm Exam and Vivat Exams

• Midterm Grade Status:     - Grades have been uploaded to the Gradebook but were initially hidden from student view due to a technical issue.     - The instructor contacted IT and released the grades to facilitate moderation, as this allows access to averages and distribution brackets.     - For some students, grades may not yet be visible on iLearn, but they are expected to be fully accessible by tomorrow afternoon.
• Performance Overview:     - The instructor reported a high number of "High Distinction" (HD) results.     - There were very few failures, primarily among students who did not submit the Viva or the exam at all.     - Despite the stress of the Viva exams—a new mode of assessment for many—the general outcomes were exceptionally positive.
• Completion of Vivat Exams:     - A few remaining Viva exams were scheduled for this afternoon, following which the final confidence check on grades will be completed.

Historical Foundations of the Just War Theory

• Pre-Modern Origins: The prohibition and justification of the use of force can be traced back to ancient Greek and Roman philosophers.
• The Scholastic Period: The doctrine was significantly developed during the Middle Ages, particularly through the works of Thomas Aquinas.
• Thomas Aquinas and the Just War Doctrine: Aquinas established three primary conditions ($jus\ ad\ bellum$) for the resort to war to be considered morally and legally acceptable:     - Right Authority ($Authoritas$): Force must be authorized by a legitimate sovereign. In Aquinas's time, this referred to the rulers of specific territorial entities rather than modern secular roles like Prime Ministers.     - Just Cause ($Justa\ Causa$): War cannot be waged for the pursuit of wealth or territorial expansion. Defending one's territory against an attack (self-defense) is considered a just cause.     - Right Intention ($Recta\ Intencio$): The underlying motive must be to achieve a just peace rather than ulterior motives.

19th and Early 20th Century Legal Developments

• Hague Conventions ($1899$ and $1907$):     - These conventions focused heavily on $jus\ in\ bello$ (the law in war), governing the conduct of belligerents once hostilities began.     - Hague Convention of $1899$: Included a provision stating that parties should exert their best efforts to settle disputes peacefully.     - Hague Convention of $1907$: Introduced the formal obligation to declare war before commencing hostilities.     - Modern Context: Current debates in the US Congress regarding the White House's $60$-day window to seek war authorization often reference whether a "formal war" has been declared, reflecting legal distinctions similar to those in the 1907 convention.
• The League of Nations: Established after World War I ($1914 - 1918$) to create a regime of collective security. While it aimed to prevent war, it did not provide a full, absolute prohibition on the use of force.
• Kellogg-Briand Pact ($1928$): Represented a significant step toward outlawing war as a means of national policy, though it ultimately failed to prevent World War II ($1939 - 1945$).

Conceptual Distinction: $Jus\ ad\ Bellum$ vs. $Jus\ in\ Bello$

• $Jus\ ad\ Bellum$:     - Refers to the international legal framework providing the conditions under which a state can lawfully go to war or use force.     - This is the primary focus of the current lecture.
• $Jus\ in\ Bello$ (The Law In War):     - Also known as International Humanitarian Law (IHL) or the Law of Armed Conflict.     - Governs how hostilities are conducted once they have started, regardless of the legality of the initial resort to force.     - Key principles include the protection of civilians and prisoners of war, the necessity and proportionality of specific attacks, and the protection of certain buildings.     - Applies to both International Armed Conflicts (IAC) and Non-International Armed Conflicts (NIAC).
• Educational Note: The law school offers an elective course on the Law of Armed Conflict, taught by Sharon Duff, which covers these topics in detail.

The UN Charter Framework on the Use of Force

• The Dual Pillars of the UN Charter:     - Article 2(3): Mandates that all member states settle their international disputes by peaceful means.     - Article 2(4): Prohibits the threat or use of force. "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."
• Historical Purpose: The UN was created after WWII to "save succeeding generations from the scourge of war."
• Legal Status of the Prohibition:     - Treaty Law: Found in the UN Charter, the Rome Statute, and the UN Convention on the Law of the Sea ($UNCLOS$).     - Customary International Law: Confirmed by the International Court of Justice (ICJ) in the Nicaragua Case (1986). The ICJ found it had jurisdiction over the US/Nicaragua dispute based on customary law even though the US had a reservation regarding the court’s jurisdiction over certain treaty-based disputes.     - $Jus\ Cogens$: The prohibition of force is widely recognized as a peremptory norm ($jus\ cogens$) from which no derogation is permitted, as indicated by the International Law Commission (ILC) in its work on the Vienna Convention on the Law of Treaties.

Unpacking Article 2(4): Scope and Definitions

• International Relations: The prohibition applies only to force used between states. It does not cover internal situations like civil wars, revolutions, or civil unrest (e.g., the Arab Spring uprisings in $2010$, the overthrow of Qaddafi in Libya, or the Syrian Civil war). These are governed by International Human Rights Law or IHL.
• The Gray Zone of Recognition: In the 1990s conflict in the Former Yugoslavia, it was difficult to determine if the conflict was international or non-international because different states disagreed on whether to recognize newly declared independent factions.
• The Threat of Force:     - Legality Test: According to the Nuclear Weapons Advisory Opinion (1996), a threat of force is unlawful if the force being threatened would itself be unlawful. Retaliatory threats (self-defense) are generally not considered unlawful threats.     - Credibility and Specificity: A threat must be credible to be a violation. If a state without nuclear weapons threatens a nuclear strike, it is not a violation of international law because the state lacks the capacity to carry it out. Threats can be explicit/verbal or implicit.
• Definition of "Force":     - Traditional view limits "force" to military/kinetic action.     - Economic coercion (embargoes/sanctions) was excluded from Article 2(4) during drafting due to a lack of majority support.     - Cyber Attacks: There is an ongoing debate. While most states still view force in a military sense, an increasing number argue that if the "scale and effects" of a cyber attack are equivalent to a military attack (e.g., the $2007$ cyber attacks on Estonia that disabled banks and government systems), it should be classified as a use of force.

Territorial Integrity, Political Independence, and Invitations

• Restrictive vs. Permissive Readings: While some states suggest use of force is legal if there is no intent to change a regime or take territory, the ICJ and the majority of states reject this.
• Case Study: Corfu Channel Case: The UK attempted to minesweep Albanian waters to gather evidence of mines. The ICJ ruled that this violated Albanian sovereignty and the prohibition of force, despite the UK's claim it was not attacking territorial integrity.
• Specific Controversies:     - Rescue of Nationals: Powerful military states (US, France, Israel, Russia) often use force in other countries to rescue their citizens. While common in practice, it is legally contested and not explicitly authorized.     - Promoting Democracy/Self-Determination: Using force or supporting insurrections for these purposes remains a highly contentious area. UN bodies typically avoid a definitive stance.
• Consent and Invitation: Force is not prohibited if a state is invited into the territory of another state.     - Example: If New Zealand asks Australia for military help against an attack.     - Civil War Exception: During the Cold War, the UK principle suggested states should not intervene even if invited if the territory is divided by civil war. This principle is less strictly followed today (e.g., US/Coalition fighting ISIS in Syria; French intervention in Mali).

Exceptions to the Prohibition: Article 51 Self-Defense

• Article 51 Text: "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…"
• Key Debates: Whether self-defense should be understood narrowly (only after an attack occurs) or widely (including responses to "imminent threats" or attacks by non-state actors).
• The Trigger: Armed Attack vs. Use of Force:     - An Armed Attack ($Article\ 51$) is a subset of Use of Force ($Article\ 2.4$).     - An armed attack is the "gravest form" of the use of force. While every armed attack is a use of force, not every use of force amounts to an armed attack.     - Scale and Effects Test: Established in the Nicaragua Case (1986) to determine the gravity of the act. Assistance to rebels (weapons/intelligence) was ruled a use of force but not an armed attack.     - Border Skirmishes: Mere frontier incidents (skirmishes) generally do not amount to an armed attack.     - Refinement: In the Oil Platforms Case (2006) between Iran and the US, the ICJ suggested that the mining of even a single military vessel could potentially constitute an armed attack.

Conditions for Lawful Self-Defense

• Customary Core: Unlike the treaty text, certain conditions for self-defense come from customary law (codified via judicial decisions like Nicaragua).
• Necessity: Use of force must be a "last resort." There must be no other available options to prevent or respond to the attack.     - Temporality: Waiting several months to respond can indicate that the use of force was not necessary.
• Proportionality: The response must not exceed what is required to repel the attack.     - Measured by the arms caused by the initial attack or the broader effects.     - It does not require responding with the exact same weapons (e.g., responding to a missile with a different weapon scale).     - Indicators include the geographical scope, duration of response, destructive scope, and effects on third states.
• Reporting: States must report self-defense measures to the Security Council, though this is often secondary to the substantive requirements of necessity and proportionality.

Examples of Act of Aggression (GA Resolution 3314)

• Invasion by armed forces.
• Bombardment of territory.
• Blockade of ports or coasts (relevant to current international conflicts).
• Attacks on land, sea, or air forces/fleets of another state.