6: Use of Force Flashcards
right to self defence
inherent right outlined in Art 51
excludes preemptive and preventive self defence
proportionality and necessity
preemptive vs preventive self defence
preemptive: in case of an impending attack
preventive: to prevent a potential attack by striking first
challenges to the self-defence regime
armed attack
customary rule (can it prevail over Art 51 framework?)
self defence: armed attack
specific type of a use of force banned in Art 2
force used on a large scale and significant effect
- only the most grave forms give rise to self-defence
no official definition
self defence: customary rule
before 1945, self-defence was customary
different approaches
- prevailing opinion is that customary rule and Art 51 are identical
- Art 51 supersedes and replaces the traditional customary right so even non-members of the UN are bound
- exceptional opinion that Art 51 and customary rule co-exist
prevailing position
- customary rule cannot widen scope of Art 51
- objective to limit unilateral use of force
UN SC authorisation for use of force
art 42
practical alternative to UN SC authorisation for use of force
UN SC delegates probative to use force to the state
- power exercised in their own material means but under global authority and control
decentralised enforcement to authorise states to use force within a mandate
- not a binding decision but permission and delegation of power
UN SC authorisation model for use of force
voluntary recourse to the use of force
- no obligation
states undertake military operation by their own means with their own control but within the legal mandate granted by the SC and under its overall authority/control
authorisation model laid out only for regional organisations
- Art 53 requires they obtain authorisation to use force
- 2 decentralised models of the use of force upon SC authorisation
challenges posed by UN SC authorisation for use of force
delimitation of the legal framework to keep decentralised use of force in strict limits
states circumventing the authorisation model
limits of UN SC authorisation for use of force
use of force
strictly defined objective (for which objective, under which conditions, etc.)
time limit
control mechanism
- reporting to the UN SC, general supervision
arguments for types of authorisation given for use of force
implicit authorisation
- given tacitly, deduced from a resolution or stand of SC members
ex-poste authorisation
- a posteriori approval
preventative self-defence against a possible armed attack
pre-emptive self-defence against directly imminent armed attack
humanitarian intervention
- protection of HR
