Presentation Transcript

1. International LawClass 22: Use of Force

   P. Brian Fisher CofC Spring 2011
2. Use of Force Basics Jus ad bellum: when it is permissible to initiate attack Jus ad bello: rules that govern behavior during war Really, no international law governing force or war prior to the twentieth century. Retorsion: unfriendly (but legal) retaliatory actions by one state against another—in response to actions considered hostile, unfriendly. E.g. breaking trade/diplomatic relations, embargoes, similar actions against foreign nationals within one’s state Reprisal: an ILLEGAL act taken as a measure of self-help in response to a prior illegal act. Generally, need 3 elements: There had to be a previous act by the other party that violated international law. Reprisals had to be preceded by an unsatisfied demand for reparation or compliance with the violated international law. There must be proportionality between the offense and reprisal.
3. Customary Law of Self-DefensePre 1945 The Caroline Incident (2 Moore, Digest of IL 412) (1906): In 1837, a group of Canadian “rebels” seeking a Canadian republic, were forced to flee into the US (after a failed rebellion against the UK). American sympathizers supplied them with money, provisions, and arms via the steamboat SS Caroline. UK attacked the Caroline, looted and burned it. US retaliated by taking a British steamboat that was in US waters (looted and burned it). Correspondence between Secretary’s of State US and UK: “It will be for the [UK] to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation…To be justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.” Thus the incident establishes the principle of "anticipatory self-defense”, which holds that it may be justified only in cases in which the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation"
4. Post 1945 Law on Use of Force UN Charter UN Charter was signed June 26, 1945, by 50 of the 51 original member countries Ratified into force October 1945 (after 5 permanent members of Sec Council ratified along with majority of other countries) UN Charter is a constituent treaty, and all members are bound by its articles. obligations to the United Nations prevail over all other treaty obligations. Most countries in the world have now ratified the Charter. PURPOSE: Article 1(1) Purposes of the United Nations are… 1. To maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
5. Post 1945 Law on Use of ForceUN Charter Article 2 Article 2(3) requires all members to “settle their int’l disputes by peaceful means in such a manner that int’l peace and security, and justice, are not endangered” Article 2(4): “All Members shall refrain in their international relations from the threator use of forceagainst the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Now, considered binding rule of customary IL NOTE: term “use of force” (not “war), which reflects the desire to prohibit the resort to armed conflict generally, not just formal states of war. What about political, economic, or psychological force? More recent reflections on Article 2(4) leave open whether the “use of force” can include non-military force. Developing countries have maintained that it does; developed countries generally hold that it does not include non-military force.
6. Corfu Channel CaseUK v Albania, 1949 ICJ 4 F: UK invaded Albania’s territorial waters to “vindicate” or test UK’s rights of “innocent passage”, as Albania had the area blanketed with mines (after several prior incidents). Two ships hit mines, killing 44 men. Later, UK conducted a “mine sweeping” op in channel w/o Albania’s auth H: ICJ held that regardless of UK’s “good motive” in clearing unlawful mines, the action was a violation of Albanian territorial integrity. Court was also not moved by arguments that unilateral action was necessary in the face of an inability or unwillingness of the Sec Council to act. Import: solidifies the rule of non-intervention in state affairs (or territorial integrity or political independence of any state.)
7. What is “threat” of force? Nuclear?1996 ICJ 226 (advisory op) Are Threats to use nuclear weapons legal? ICJ: depends on whether “use of force” would be illegal. If so, then threat of it is also illegal. To ensure “deterrence” in IR, some form of a credible “threat” is necessary, but does that inherent threat then violate Art 2(4)? ICJ: Depends on whether the particular use of force would be directed against the territorial integrity or political independence of a state, or against the purposes of the UN, OR whether (if invoked as defense) it would violate the principles of necessity and proportionality.
8. Exceptions to Article 2(4)Art 51: Self-Defense Art 51: ‘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 UN, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council…” Some scholars argue that the Charter explains the full parameters of self-defense; thus, it precludes “anticipatory self-defense”. Others argue that the phrase “inherent right of self-defense” indicates that the Charter intended to incorporate the customary law of self-defense, which includes “anticipatory self-defense”
9. Nicaragua v. US1986 ICJ 14 F: In 1979, the left-wing Sandinista government gained control in Nicaragua, while the US supported the gov’t of their neighbor El Salvador. Two years later, the US concluded that Nicaragua was aiding rebel forces in El Salvador. As a result, the US cut all economic aid to Nicaragua. By contrast, Nicaragua alleges that the Contra rebels were receiving support from the US to overthrow the Sandinistas. They also accuse the US of laying mines in Nicaragua waters. NOTE: US disputed the ICJ’sjuris, and when the Ct asserted juris, the US withdrew from the case. However, US had already made the case for collective self-defense, in that US was coming to the aid of El Salvador, who was being attacked by Nicaragua.
10. Nicaragua v. US1986 ICJ 14 I: Is cutting off economic aid sufficient “self-defense” justified under Article 51 (UNC) H: No. Use of force by the US was an unjustified collective self-defense. R: UN Charter prohibits the use of force by one state against another, except for the right of individual and collective self-defense. Here, ct ruled that an “armed attack” must be ordered by a state (and the harmed state must declare that the attack took place). Thus US violated prohibition against the use of force Also, the court found that Nicaragua was not responsible for the arms given to the El Salvador rebels. The ct said that even if the Nicaraguan gov’t had, it would not have constituted an “attack” Also, ct determined that there were other means (through El Salvador) to dissuade Nicaragua’s conduct. Finally, US failed to follow procedure in alerting the SC
11. Import from Nicaragua v US(self-d) Right of self-defense is part of CIL, predating the Charter Acts under Self-Defense must be: 1) necessary and 2) proportional to threat Attack must be “armed” prior to the resort to self-defense; force or intervention below the level of an “armed attack” does not trigger the right. However, nature of “armed attack” does not have to be “conventional” (i.e. military force) nationals are threatened abroad, can invoke self-d to rescue, or 9/11 (nonstate actors included) Israeli Wall (ICJ advisory op): Israel constructed lengthy barrier (hundreds of kms) across the West Bank, arguing that it was a non-violent measure necessary for preventing terrorism in Israeli civilian areas and was consistent with Art 51. ICJ rejected the arguments, arguing that “Art 51…recognizes the existence of an inherent rt of self-defense in the case of armed attack by one State against another State. Thus Art 51 has no applicability. A number of judges explicitly rejected this view.