21 - International Law Flashcards
What is the War Mantra?
Lawful Military Action = Domestic Legal Basis + International Legal Basis
Two primary sources of International Law
- Custom
- Treaty
Jus ad Bellum
Rules governing the legality of going to war
Actions in this regard are governed by the UN Charter
Jus in Bello
Rules that apply once war/armed conflict has commenced
Default Rule for the Use of Force
Rebuttable Prohibition against Armed Conflict
UN Charter, Art. 2(4)
Two Official Bases for a State’s resort to use of force
- Enforcement Action under the auspices of the UN Security Counsel
Determines:
-Threat to the peace
-Breach of the peace
-Act of aggression - Self-Defense
Bases for Use of Force
Measures that the Security Council can take
Three
- Make recommendations (non-binding)
- Non-Military Enforcement Mechanisms
-Binding on all member nations - Military Action
-Permissive, not mandatory
Bases for Use of Force
National Defense
Includes:
- Territorial integrity
- Political independence
- Nationals and their property located abroad
Bases for Use of Force
Article 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 United Nations, until the Security Council has taken measures to maintain international peace and security.”
National Self-Defense
Expansive Interpretation
Minority (U.S.) view
Required the following considerations:
- Necessity
- Proportionality
- Immediacy
National Self-Defense
Expansive Interpretation
Three kinds of force:
1. Anticipatory self defense
2. Preemptive self defense
3. Preventative self defense
Domestic Requirements for US Use of Force
- Constitutional
-POTUS
-Congress - Consistent with War Powers Act of 1973 (not in use)
