topic 10
Regional Organizations
Often include collective defense provisions, such as NATO’s Article 5 and OAS’s Rio Treaty.
Contain mechanisms for peaceful conflict resolution.
Some, like the AU, have mandates for humanitarian intervention in cases of severe human rights violations.
Address economic integration and sustainable development to foster stability and cooperation.
Face challenges in balancing sovereignty with collective action and ensuring consensus-based decision-making.
The evolution of regionalism reflects a shift from state-centric security to broader concerns like human security, economic stability, and environmental sustainability.
Definition of ‘Use of Force’ and ‘Threat of Use of Force’
Article 2(4) of the UN Charter prohibits the use and threat of use of force in international relations.
This does not affect a state's right to maintain order within its jurisdiction, such as quelling riots or suppressing insurrections.
Use of Force
Refers primarily to the deployment of military power by one state against another.
Article 2(4) of the UN Charter: "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…"
Prevailing interpretation: “Force” refers to armed or military force, not economic or political pressure.
Includes acts like invasion, bombardment, or military operations compromising a state’s territorial integrity.
Threat of Use of Force
Also prohibited under Article 2(4) of the UN Charter.
Defined as an express or implied declaration by a state that it will resort to force if certain conditions are not met.
Ian Brownlie: "an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government".
Examples: verbal ultimatums, military maneuvers near borders.
The Vienna Convention on the Law of Treaties declares any treaty procured by the threat or use of force as void.
Prohibition of the Use and Threat of Force in International Law
Legal Foundation
Cornerstone of modern international law, enshrined in Article 2(4) of the UN Charter.
Recognized as a jus cogens norm, from which no derogation is permitted.
Objectives: maintain international peace and security, protect the sovereignty of states, and prevent aggression.
Scope and Exceptions
General rule: any use or threat of force is prohibited except in two circumstances:
Self-Defense: Article 51 of the UN Charter allows the use of force in individual or collective self-defense if an armed attack occurs against a UN member state.
UN Security Council Authorization: The Security Council may authorize the use of force to maintain or restore international peace and security under Chapter VII of the Charter.
Controversial claims, e.g., humanitarian intervention and protection of nationals abroad, are not explicitly recognized exceptions.
Interpretation and Practice
Interpretation and application can be contentious.
Debates on what constitutes a "threat" or "use" of force and how to distinguish between legitimate self-defense and unlawful aggression.
The International Court of Justice (ICJ) emphasizes that both the use and threat of force must be consistent with the purposes and principles of the United Nations.
Both concepts primarily relate to military force, and their interpretation continues to evolve through state practice and international jurisprudence.
The Right to Individual and Collective Self-Defense
Self-defense became an autonomous legal concept with the signing of the Kellogg-Briand Pact on August 26, 1928, which prohibited the use of force, although making an exception for self-defense.
Requires satisfaction of three conditions:
Temporary: terminates once the Security Council has taken measures necessary to maintain international peace and security.
Supervision by the Security Council.
Substantive Condition: use of force in self-defense is permitted only if the state employing force was the object of an armed attack on its territory.
UN Charter Art. 39: Use of force under Chapter VII’s provisions for collective action in the face of a threat to the peace is only authorized if the Security Council deems military intervention necessary after determining that there exists a threat to international peace and security.
The attacked State is obliged to report to the Security Council to explain its decision to resort to force.
The collective nature of the UN security system should guide the interpretation of Chapter VII articles.
The Security Council, not individual members, is responsible for assessing the adequacy of the measures taken.
Members are not at liberty to decide for themselves whether the Security Council has taken effective action, nor is the right of self-defense revived if a member believes the Security Council's action was ineffective.
Individual self-defense: when the attacked State defends itself only with its own forces.
Collective self-defense: assistance to the attacked State.
The characterization of an action as self-defense depends on the characterization of the action in response to which it is carried out as an armed attack.
States whose policy is to pursue their interests militarily are not justified by the use of military force and rely on a broad notion of armed attack.
Prevailing view: an armed attack occurs only when military force of a certain intensity is used (ICJ Nicaragua Case).
About Preventive Self-Defense
Some authors consider gross and systematic violations of human rights as equivalent to a military attack.
Expanding the notion of a threat to peace empowers the organized world community, while expanding the notion of a military attack leads to undesirable empowerment of unilateral measures by individual States.
The basis for the right to self-defense is an actual attack, not a threat of attack; preventive self-defense is inadmissible.
The American intervention in Iraq created the legal definition that the concept of preventive self-defense emerges.
Preventive self-defense is an armed action in reaction to a potential threat.
Pre-emptive self-defense (also known as anticipatory self-defense) is the use of force in reaction to an imminent threat.
Preventive action is taken at an earlier stage to ensure the threat does not evolve into an imminent attack and includes non-military measures.
Two Readings of Art. 51 Regarding Preventive Self-Defense:
Some believe the right of preventive self-defense is contained in Art. 51, arguing that the adjective "inherent" implies a customary right of preventive self-defense preserved in Art. 51.
The majority insist on a restrictive reading of Art. 51, focusing on the terms “if an armed attack occurs,” to argue that the use of force in self-defense is only possible in response to an armed attack, prohibiting preventive self-defense.
More About Self-Defense:
Self-defence against an immediate threat of attack is permissible.
Some authors postulate pre-emptive strikes against States that may possess weapons of mass destruction, but this expansion blurs the boundaries of the prohibition of the use of force.
The right to self-defence presupposes not only an attack that has already occurred but also one that is still ongoing.
The use of force in response to an earlier but not ongoing armed attack is impermissible, as it would be armed reprisal.
Self-defence can only be directed against a State to which an armed attack can be imputed, even if the attack is carried out by non-State actors.
Measures of self-defence must correspond to the intensity of the attack (principle of proportionality).
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 stated that the exercise of the right of self-defence is subject to the conditions of necessity and proportionality.
The right of self-defence is lost when the Security Council takes measures necessary to maintain international peace.
What is not "self-defense”?
Exercise of the right to self-determination, which has not been recognized in State practice as a permissible use of force comparable to self-defense.
Citizen protection, as nationals abroad are not external representations of States protected by the prohibition on the use of force; operations for the protection of one’s own citizens are impermissible under international law without the consent of the State on whose territory they are conducted.
Other Grounds for the Use of Force:
Article 2, paragraph 4 of the UN Charter forms the basic norm on the use of force, forbidding states from using or threatening others with the use of force.
The ICJ agreed with the International Law Commission that the prohibition on the use of force in Art. 2, para. 4 of the Charter is part of jus cogens.
Exceptions explicitly recognized by international law:
The use of force by or on behalf of the Security Council (Art. 24, para. 1 of the UN Charter).
If the Security Council concludes that the prevailing situation falls under Art. 39 of the UN Charter, it is empowered by Chapter VII to take coercive action.
Definition of Aggression in International Law
Art. 39 of the UN Charter provides that the UNSC is the sole body competent to determine any threat to the peace, breach of the peace, or act of aggression.
Resolution 3314 (XXIX) of the UNGA defines aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or any other manner inconsistent with the Charter of the United Nations.”
The term “State” is used without prejudice to questions of recognition or to whether a State is a member of the UN and includes the concept of a “group of States” where appropriate.
The determination of aggression is critical in maintaining international peace and security, as it sets the framework for responding to threats and upholding the principles of the UN Charter.
This determination requires careful analysis and often involves various factors, including the intent of the aggressor, the nature of the acts committed, and the context in which they occur. Ensuring adherence to this framework helps prevent conflicts and facilitates diplomatic resolutions before escalation.
Additionally, the role of international law in defining and prosecuting acts of aggression is essential, as it provides a legal basis for accountability and the imposition of sanctions against aggressor states.
This legal framework is supported by treaties and conventions that establish norms for state behavior, allowing the international community to respond effectively to violations.