International Law Unit 9: Use of Force

Fall 2005 Mr. Morrison

Historical development of use of force law

  19 th Century—War is a legitimate status 20 th   Century League of Nations Covenant established a “cooling off period” Kellogg-Briand Pact (Pact of Paris) renounced war as instrument of national policy  But—World War II.

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United Nations Law on Use of Force

 General denunciation of war    In preamble In Purposes: Art. 1(1) In Principles: Art. 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, or in any other manner inconsistent with the Purposes of the U.N.” Fall 2005 Unit 9: Use of Force 3

Three Charter Chapters

   Chapter VI—Pacific Settlement of Disputes (arts. 33-38) Chapter VII—Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression (arts. 39 51) Chapter VIII—Regional Arrangements (arts. 53-54) Fall 2005 Unit 9: Use of Force 4

Chapter VI—Pacific Settlement

   Security Council can call upon States to engage in pacific settlement While Security Council is considering, General Assembly cannot act (art. 12) Affected State cannot vote (art. 27(3)) Fall 2005 Unit 9: Use of Force 5

Chapter VII—Action

  Collective Security (arts. 39-50) Self-defense (art. 51) Fall 2005 Unit 9: Use of Force 6

Collective Security

    Security Council must find “treat to the peace, breach of the peace, or act of aggression” (art. 39) It may call for provisional measures (art. 40) It may impose sanctions (art. 41) It may use force (art. 42) Fall 2005 Unit 9: Use of Force 7

Collective Security Issues

   Breadth of “threat to the peace”  Indirect or “reverse” threats Definition of “acts of aggression”  UN Definition of Aggression Nature of force   Original idea: A true joint force Actual: Frequently authorization for action by group of States Fall 2005 Unit 9: Use of Force 8

Self Defense

 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attach occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to restore international peace and security . . .” (art. 51) Fall 2005 Unit 9: Use of Force 9

Self Defense issues

   Inherent right  What does the word “inherent” add?

Individual or collective  Nicaragua judgment says there must be a request Until the Security Council [acts]  What extinguishes the inherent right? Action or complete action?

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Self defense issues

 What is an “armed attack”?

  Objective or subjective test  Soldiers crossing border or perceived imminent threat?

Preemptive and preventive self-defense Fall 2005 Unit 9: Use of Force 11

Definition of Aggression

   Adopted by General Assembly Res. 3314 (XXIX)(1974) Contains both objective and subjective tests Intended as interpretation of art. 39, but may apply to art. 51 Fall 2005 Unit 9: Use of Force 12

Chapter VIII—Regional Arrangements

  Regional arrangements may take “enforcement actions” with the permission of the Security Council (art. 53) Note the difference  Regional arrangement (art. 53)  Security council approval required  Collective self-defense (e.g., NATO) (art. 51)  Security Council approval NOT required Fall 2005 Unit 9: Use of Force 13

Humanitarian intervention

 Collective security responses   UN intervenes (or authorizes intervention) if there is a “threat to the peace” overridden (art. 2(7)) (art. 39) and thus domestic jurisdiction rule is Foreign State intervention (see art. 2(4) )   To protect its nationals To stop genocide (Genocide Convention)  Other human rights violations???

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